P. v. White
Filed 3/29/13 P. v. White CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
MIGUEL WHITE,
Defendant and Appellant.
C069249
(Super. Ct. No. 09F01087)
Defendant
Miguel White and an accomplice robbed three pizza delivery men
at gunpoint. During the third
robbery, defendant shot the delivery man in the leg. Following a jury trial, he was convicted of
three counts of second degree robbery
(Pen. Code, § 211)
name="_ftnref1" title="">[1]
and one count of attempted carjacking
(§§ 664/215, subd. (a)).
Additionally, the jury found true three enhancements for personal use of
a firearm (§ 12022.53, subd. (b)) and an enhancement for personal and
intentional discharge of a firearm causing great bodily injury
(§ 12022.53, subds. (c), (d)).
The trial court sentenced defendant to
months plus 25 years to life.
On appeal,
defendant contends (1) there is insufficient evidence to support the
personal and intentional discharge of a firearm enhancement,
(2) instructional error on that enhancement, and (3) trial counsel
was ineffective for failing to request an instruction on accident. We affirm.
In January
2009, defendant lived in an apartment with Willie Soders, Latisha Watkins, and
Sarina Lockhart. Defendant and Watkins
were in a relationship, as were Soders and Lockhart. Soders’s hair was styled in dreadlocks or
“twisties†at the time, while defendant had a short haircut.
On January 20, 2009, defendant had
Lockhart call in an order with Pizza Guys for delivery to an address other than
their apartment. Defendant and Soders
donned hooded sweatshirts and left the apartment 20 to
30 minutes later. They returned to the apartment with pizza and
$90 cash.
Oleksander
Melynk delivered the pizza order. Two
men approached Melynk, one of whom was armed.
The armed man pointed a shotgun at Melynk and said, “give me the money.†Melynk handed over $100 cash, and the robbers
fled with the pizza and the money.
On January 22, 2009, Lockhart, at
defendant’s request, called in a delivery order to Round Table Pizza. Defendant and Soders donned hooded
sweatshirts after the order was placed.
Joaquin
Perez delivered the order to the address given by Lockhart, but the
family residing there told him they had not ordered any food. Perez called the phone number on the
receipt, and a male voice confirmed the order.
There was laughing in the background, so Perez tried to verify the
address, but the man hung up. Perez then
called his supervisor, who called the number to verify the address. After getting the same treatment as Perez,
the supervisor told Perez to return to the restaurant with the pizza
order.
Later,
Perez received a call from a male at the same number asking for the pizza. The caller, defendant, said he would have
someone outside waiting for the order to arrive. Perez’s supervisor authorized a delivery, and
Perez drove to the address given in the call.
As Perez drove up, he saw a “like a younger kid†with “dreaded†or
“twisted†hair standing by the curb opposite from the delivery address. After Perez unloaded the food, he was
approached by a different man; this man was carrying a shotgun. The gunman demanded money and Perez gave him
$20 in one dollar bills. The gunman then
demanded Perez’s cell phone and Perez reluctantly gave it to him. Perez asked why they were doing this
since they would only get a small amount.
He then asked for his cell phone back and the gunman asked Perez if
he wanted the phone back because he was planning on calling the police. Perez said, “no[,] never mind†and was then
“sucker-punched†in the face by the unarmed man with the dreadlocks or
twisties. The gunman asked for Perez’s
Bluetooth earpiece, but Perez said it fell out of his ear when he was hit. He explained it was somewhere on the
ground. The robbers fled without taking
the food.
Defendant
and Soders returned to the apartment with $20 and no food. Lockhart asked Soders where the pizza was;
Soders replied it was none of her business.
Lockhart later saw Soders reenact hitting a person.
On January 23, 2009, Lockhart
refused defendant’s request to call in a pizza order to Domino’s, as she
now suspected it was a pretense to robbery.
Soders choked Lockhart, and someone else placed the order. Defendant and Soders dressed in hooded
sweatshirts and left the apartment.
John
Martinez delivered the pizza order. The
house was “kind of dark†when Martinez
arrived. He backed the car into the
driveway and started unloading the pizzas.
When he turned around, two men were standing in front of him. One of the men, defendant, held a
shotgun.
Defendant
told Martinez to “give me everything.†Martinez
put down the pizza, took out his wallet, and pulled out $20. The unarmed man then searched Martinez’s
pockets and, after finding another $20, held it up for defendant to see. Defendant then asked Martinez
for his keys and cell phone; Martinez
gestured toward his car by moving his head.
Martinez
decided to leave after it became quiet for a moment. Martinez
took a step backward toward his car door, and defendant leaned forward and shot
Martinez in the leg. Martinez
turned around, saw a “huge hole†in his leg, and the two robbers slowly jogging
from the scene. The robbers left the
pizza. Martinez
thought he had been shot to keep him from pursuing the robbers.
Defendant
and Soders were out of breath and looked worried when they returned to the
apartment. Lockhart asked if something
was wrong, and defendant said, “[s]omeone got hurt.â€
Sometime
thereafter, defendant and Watkins got into an argument and defendant moved out
of the apartment. According to Lockhart,
defendant took a shotgun wrapped in a shirt with him when he left.
Admissions
Police
determined the phone number used to order the pizza on all three occasions
belonged to Soders. Soders, who was on
probation, was arrested with the cell phone in his possession. It had been used to call each pizzeria on the
night their delivery man was robbed.
The phone contained a photograph of defendant holding a shotgun.
When he was
arrested, defendant tried to evade the police by exiting a fourth floor
apartment balcony and climbing along a three-inch ledge to the balcony of an
adjacent apartment, where he was found.
In an interview with the police, defendant admitted that he was the
person holding the shotgun in the photograph on Soders’s phone.
Defendant
initially claimed he knew about only one of the robberies. Later, he admitted participating in the
first robbery was “easy.†He also
admitted participating in the third robbery.
Defendant
knew Martinez, the victim of the
third robbery, was lying when he said that he had only $20. When Soders demanded the car, Martinez
refused and took a step toward them.
Defendant and Soders told Martinez
to stop. When Martinez
“tried to pull a move,†defendant jumped back, and the shotgun accidentally
discharged. Defendant said, “we didn’t
know that the gun was loaded.†Defendant
did not provide this accidental discharge scenario until after the detective who
was interrogating defendant suggested the shooting was accidental as an
interrogation technique.
Sufficiency of the Evidence
Defendant
contends there is insufficient evidence
to support the true finding for intentional and personal discharge of a
firearm resulting in great bodily injury (§ 12022.53, subd. (d)) in
count three, the robbery of John Martinez.
We disagree.
Section 12022.53,
subdivision (d), states in pertinent part:
“. . . any person who, in the commission of a
felony specified in subdivision (a), . . . personally and
intentionally discharges a firearm and proximately causes great bodily injury,
as defined in Section 12022.7 . . . to any person other than an
accomplice, shall be punished by an additional and consecutive term of
imprisonment in the state prison for 25 years to life.†Robbery is one of the felonies enumerated in
subdivision (a) of section 12022.53.
(§ 12022.53, subd. (a)(4).)
The test
for sufficiency of the evidence to support an enhancement is whether, after
viewing the evidence in the light most favorable to the judgment, any rational
trier of fact could have found the elements of the enhancement beyond a
reasonable doubt. (People v. Alvarez (1996) 14 Cal.4th 155, 225.) Defendant argues there is insufficient
evidence that he intentionally discharged the shotgun. He claims the evidence shows he shot Martinez
accidentally rather than intentionally.
Noting the jury could not reach a verdict in an attempted murder count
stemming from the assault,
name="_ftnref2" title="">[2]
defendant asks us to reverse the true finding.
The cases
cited by defendant do not support his contention. He relies on a passage from
41 Cal.3d 296. But the passage he
cites is part of a discussion finding failure to instruct on intent to kill (an
element of the felony murder special circumstance at the time) in which the
court determined the failure was not harmless in light of evidence negating
defendant’s intent to kill. (
fn. 13.) Silbertson is irrelevant to defendant’s contention.
This
court’s decision in People v.
Treadway (2010) 182 Cal.App.4th 562 is likewise inapposite. Treadway
involved a mentally disabled defendant who shot the victim purportedly after
the victim threw his lunch bag at the defendant and charged him in an attempt
to obtain the defendant’s gun. (
plea agreement barring the codefendants from testifying at defendant’s trial
violated defendant’s right to compulsory process and due process. (Id. at
p. 567.)
In People v. Jones (1991) 234 Cal.App.3d 1303, the Court of
Appeal held the trial court’s failure to give a sua sponte instruction on the
defense of accident was harmless error.
(Id. at p. 1314.) That ruling is not relevant as to
whether substantial evidence supports the true finding on the enhancement here,
and the holding that a trial court has a duty to instruct sua sponte on accident
has since been disapproved. (
51 Cal.4th 989, 998, fn. 3.)
The
evidence here shows that defendant and Soders responded with force if their
victims showed any independence. When
the victim of the Round Table robbery questioned the wisdom of robbing him for
such a small amount of money and asked defendant to return his cell phone,
Soders struck him in the face. The
victim of the shooting, Martinez,
initially did not give the robbers all of his money, and unsuccessfully tried
to keep $20. He was shot as he took a
step backward in an effort to leave the scene before defendant and Soders
made their escape.
According
to Martinez’s testimony, defendant
held the shotgun at shoulder level and pointed it at Martinez
throughout the robbery. Martinez
was standing at the rear driver’s side of his car, while defendant was “on the
sidewalk, like maybe a little bit up on the driveway.†After it became silent for a moment, Martinez
took a step back to get into his car.
He was then shot in the leg, “in the perfect spot, just like to cripple
me.†Martinez did not see the gun when
he was shot, but testified that defendant “lean[ed] forward and shot.†Martinez saw the muzzle flash. Defendant was four or five feet from
Martinez when the shotgun was discharged.
The
evidence supports an inference that defendant intentionally shot Martinez in
the leg to prevent him from leaving the scene.
Defendant, who had been pointing the shotgun at Martinez, leaned forward
as he shot Martinez, indicating the shot was aimed and therefore
intentional. Shooting Martinez in the
leg accomplished the task of allowing defendant and Soders to escape the
scene. In short, the true finding on the
enhancement is supported by substantial evidence.
Asserted Instructional Error
Defendant
contends the trial court committed prejudicial error by instructing the jury
that the intentional discharge of a firearm enhancement (§ 12022.53,
subd. (d)) is a general intent allegation.
He is mistaken.
During
deliberations, the jury asked the trial court:
“Definition of the legal term intent per the first special finding in
Count Five. . . . As written
in PC 12022.53(b), page 39, and section 12022.53(d),
page 40, and violation of section 664 dash 184 subsection A,
page 38.†The question refers to
the firearm allegations and the attempted murder charge in count five.
The trial
court told the jury that attempted murder was a specific intent crime that
required an intent to kill and that the personal use enhancement was a general
intent allegation that required an intent to do one of the proscribed
acts. Regarding the intentional
discharge allegation, the trial court stated:
“this is a general intent allegation. . . . [¶]
. . . [¶] . . . For you to find this
allegation true, that person must not only commit the prohibited act, but must
do so with wrongful intent, to wit, that:
‘the defendant intended to discharge the firearm.’ A person acts with wrongful intent when he or
she intentionally does a prohibited act, however, it is not required that he or
she intend to break the law. [¶] For each crime and allegation, each of the
elements for that crime and allegation must be proven beyond a reasonable doubt
by the Prosecution.†Defendant objected
to the use of general intent in defining the intentional discharge allegation,
asserting that the enhancement requires a “specific intent†to discharge the
firearm.
Defendant
contends on appeal the court’s answer regarding general intent was incorrect
and confused the jury. Noting that the
distinction between general and specific intent can be confusing (see
444, 456 [“Specific and general intent have been notoriously difficult terms to
define and applyâ€]), defendant asserts that the trial court’s response “merely
begs the jury’s question†as to whether defendant specifically intended to fire
the shotgun as opposed to doing so by accident or negligence.
We must
review jury instructions based on how a reasonable juror would
construe them. (
2 Cal.4th 629, 688.) The ultimate
test on appeal is “ ‘whether there is a reasonable likelihood that
the jury has applied the challenged instruction in a way’ that violates the
Constitution. [Citation.]†(Estelle v.
McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385].) We do not review fragments of
instructions divorced from the entire instruction; nor can we review
an instruction isolated from the complete charge to the jury. (People v.
Thomas (2007) 156 Cal.App.4th 304, 310.)
Here, the
trial court’s instruction was proper.
162 Cal.App.4th 1484, a case not cited by either party, is relevant to
this issue. In Wardell, the court held that the enhancement in
section 12022.5, subdivision (a) for personal use of a firearm
requires a general intent, not a specific intent. The court noted, “ ‘ “When the
definition of a crime [or enhancement] consists of only the description of a
particular act, without reference to intent to do a further act or achieve
a future consequence, we ask whether the defendant intended to do the
proscribed act. This intention is deemed
to be a general criminal intent. When
the definition refers to defendant’s intent to do some further act or achieve
some additional consequence, the crime [or enhancement] is deemed to be one of
specific intent.’ †[Citation.] [¶] The definition of personal use of a firearm
consists of a description only of the proscribed act -- ‘personal[] use[]
[of] a firearm in the commission of a felony or attempted felony.’ (Pen. Code, § 12022.5,
subd. (a).) No intent to ‘do some
further act or achieve some additional consequence’ is part of the statutory
definition.†(Wardell, supra,
162 Cal.App.4th at p. 1494.)
the Legislature intends to require proof of a specific intent in an enhancement
provision, it has done so explicitly by referring to the required specific
intent in the statute. (
22 Cal.4th 190, 199; see, e.g., former § 12022.7, subd. (a), as
amended by Stats. 1994, ch. 873, § 3 [former great bodily injury
enhancement in § 12022.7 which read, “[a]ny person who, with the intent to
inflict the injury, personally inflicts great bodily injury,†required a
specific intent to cause great bodily injury].)
Here, the
enhancement in section 12022.53, subdivision (d) consists of a
description only of the proscribed act -- personal and intentional discharge of
the firearm, i.e., the defendant intended to pull the trigger. It does not require that a defendant intend
to pull the trigger with the intent to do some further act or accomplish some
other goal.
title="">[4] Thus, the enhancement calls for general
criminal intent.
Defendant
insists the trial court should have told the jury the enhancement requires that
a defendant specifically intend to
discharge the firearm. He relies on
169 Cal.App.4th 41, in which the trial court told the jury as much. (Id.
at p. 54.) The appellate court in
court’s language; nor do we. Adding the
word “specifically†to the instruction does not change what intent must be
proven, i.e., that defendant intended to pull the trigger.
The instructions taken as a whole properly
defined the mental element of the intentional discharge enhancement. The court’s reply defined the mens rea
element for the enhancement as “the defendant intended to discharge the
firearm.†This was the definition already
given to the jury through the standard instruction on the enhancement, CALCRIM
No. 3148. The court’s reply also
referred the jury to CALCRIM No. 252 (union of act and intent) and CALCRIM
No. 3146. Taken together, the
court’s response to the jury question instructed the jury to apply the correct
mens rea element required for the enhancement allegation and helped the jury
determine the issue central to the enhancement -- whether defendant intended to
pull the trigger.
Ineffective Assistance of Trial Counsel Claim
Defendant
contends trial counsel was ineffective in failing to request a pinpoint
instruction on the defense of accident with regard to the intentional discharge
enhancement.
To
establish ineffective assistance of counsel, a defendant must show
(1) counsel’s performance was below an objective standard of reasonableness
under prevailing professional norms, and (2) the deficient performance
prejudiced defendant. (
466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674] (Strickland); People v.
Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) “ ‘Surmounting
Strickland’s high bar is never an
easy task.’ †(Harrington v. Richter (2011) ___ U.S. ___, ___
[178 L.Ed.2d 624, 642 (Richter),
quoting Padilla v. Kentucky
(2010) 559 U.S. ___, ___ [176 L.Ed.2d 284, 297.)
To establish
prejudice, “It is not enough ‘to show that the errors had some conceivable
effect on the outcome of the proceeding.’ †(Richter,
supra, ___ U.S. at p. ___
[178 L.Ed.2d at p. 642].) To show
prejudice, defendant must show a reasonable probability that he would have
received a more favorable result had counsel’s performance not been
deficient. (Strickland, supra,
466 U.S. at pp. 693-694; Ledesma,
supra, 43 Cal.3d 171,
217-218.) “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.†(Strickland,
supra, 466 U.S. at p. 694;
accord, Ledesma, supra, 43 Cal.3d at p. 218.)
Even assuming
trial counsel should have requested the accident instruction, defendant has
failed to show how he was prejudiced by counsel’s failure to do so. The jury was instructed with CALCRIM
No. 3148 that the People must prove beyond a reasonable doubt that
defendant intentionally fired the shotgun.
The accident instruction offered no additional guidance on the
issue that would have been helpful here.
the shotgun was fired accidentally rather than intentionally. The jury’s true finding as to the
section 12022.53, subdivision (d) firearm allegation necessarily
means that the jury found the firearm was not accidentally discharged. The evidence on this issue was
compelling.
The
evidence suggesting that defendant accidentally fired the shotgun, on the other
hand, was suspect. His statement to the
detective that the gun discharged accidentally was made only after the detective
suggested as much as an interrogation tactic.
Defendant denied wielding the shotgun during the second robbery, yet the
victim said the unarmed person had dreadlocks or twisties. That described Soders’s hairstyle, not
defendant’s. Defendant claimed that
neither he nor Soders knew the shotgun was loaded when it discharged and
wounded Martinez. Yet, the evidence
suggested defendant was familiar with shotguns.
He had posed for a picture holding one and it was defendant who later
took a shotgun from the apartment when he moved.
Defendant has
failed to show a reasonable probability that he would have received a more
favorable result had the accident instruction been given.
The
judgment is affirmed.
MURRAY ,
J.
We concur:
BUTZ , Acting P. J.
DUARTE , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2] The jury deadlocked at 10 to two on the
attempted murder charge in count five and the trial court declared a mistrial
as to that charge.
