Opinion
F070246
01-05-2017
THE PEOPLE, Plaintiff and Respondent, v. OMAR LOYA, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F10906539)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson and Gary D. Hoff, Judges. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
Judge Simpson denied defendant's pretrial motion to represent himself. Judge Hoff presided over defendant's trial and sentenced him.
-ooOoo-
INTRODUCTION
Defendant Omar Loya was found guilty after a jury trial on April 4, 2014, of eight counts and special allegations based on the attempted murder of Michael Christopher Chavez, Jr., set forth in the third amended information. Defendant was found guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1), personally and intentionally discharging a firearm in the commission of count 1 (§ 12022.53, subd. (c)), assault with a firearm (§ 245, subd. (a)(2); count 2), personally using a shotgun in the commission of count 2 (§ 12022.5, subd. (a)), possession of a shotgun by a felon (§ 29800, subd. (a)(1); counts 3 & 4), possession of a short-barreled rifle or shotgun (§ 33215; count 5), possession of ammunition by a person prohibited from owning a firearm (§ 30305, subd. (a); count 6), resisting or delaying a peace officer (§ 148, subd. (a)(1); count 7), and possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 8). The jury did not find true an allegation that defendant caused great bodily injury to the victim. In bifurcated proceedings, the trial court found true allegations defendant had a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony enhancement, and two prior prison term enhancements.
Unless otherwise indicated, all statutory references are to the Penal Code.
On October 6, 2014, the trial court sentenced defendant to a term of nine years in prison, doubled to 18 years pursuant to the three strikes law, for the attempted murder allegation in count 1. The court sentenced defendant to concurrent sentences on counts 3, 4, and 6. The court stayed defendant's sentences on counts 2 and 5 pursuant to section 654. The court imposed consecutive terms of two years on count 8, 20 years for the section 12022.53, subdivision (c) gun use enhancement, five years for the prior serious felony conviction enhancement, and one year for one prior prison term enhancement. Defendant's total prison term is 46 years with custody credits of 1,585 days.
On appeal, defendant contends the trial court erred in denying his request prior to trial to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). Defendant further contends he could not have harbored the specific intent to kill the victim because his shotgun was loaded only with birdshot and he shot the victim from too great a distance to place his life in jeopardy. We affirm the judgment.
FACTS
Late in the evening of December 19 or the early morning of December 20, 2010, Michael Chavez walked to his cousin's home in Fresno but his cousin was not there. Chavez was high on methamphetamine. As he walked home, Chavez reached a corner and saw two people nearby. One of the men was dark-skinned with long, dark hair. Chavez had not seen the man before. Chavez was about five feet away from the man. Chavez could not see the second person very well.
The dates of the shooting incident refer to the year 2010. --------
The long-haired man pulled out a double-barreled shotgun and told Chavez not to run. When Chavez saw the gun and the man started to point it at him, Chavez started running toward his house. Everything happened quickly. Chavez thought he had gotten away but when he reached the corner, he heard a boom. Chavez explained that after he heard the shot, he felt it strike his back like somebody pushed him but he kept on running. Chavez estimated his distance from the shooter when he got shot was about 18 feet, or half a block away.
Chavez did not go to the hospital to have his wound treated and did not call the police or 911. Chavez was questioned by officers on December 20 because he was on probation. Chavez could not remember details of the questioning because four years had passed from the incident until trial. Chavez did not remember identifying defendant by the nickname "Thumper."
At 6:00 p.m. on December 20, Officer Daniel Laband of the Fresno Police Department was on duty conducting a parole compliance check. He knocked on the door of Chavez's residence and entered the home. Chavez was lying in bed; he got out of bed slowly and was in pain. Chavez told Laband he had been shot. Laband later found out Chavez had been shot in the back.
When Chavez got out of bed, Laband could see a shotgun pattern of birdshot on Chavez's back. Pellets that did not penetrate Chavez's skin left red marks. Other wounds were pellets embedded in Chavez's back. Chavez refused to talk about the incident because he did not like cops and he did not want medical treatment. The jury viewed photographs of the wounds to Chavez's back. Chavez's parole agent authorized a parole hold on Chavez. Laband stated that birdshot was dangerous. The photographs depicted injuries to Chavez's left arm, the left side of his back, and marks to the lower right side of his back. Pellet wounds that were darker colored and surrounded by red were pellets still embedded in Chavez's skin.
Once Chavez was brought downtown, Laband turned him over to Detective Art Rodriguez. Rodriguez described Chavez as appearing afraid, though he was not under the influence of a narcotic or alcohol. Rodriguez also saw Chavez's back and the injuries were consistent with a shotgun wound. The closer one is to the shot, the tighter the pellet spread or pattern would be. One further away from the shot would have a wound pattern with a wider spread. Rodriguez thought the spread of pellet wounds to Chavez's back "was fairly close." Rodriguez explained there were 25 pellets in a load of birdshot, and Chavez had about 20 strike marks to his back and arm. Rodriguez believed Chavez was within 20 feet of the shooter. Chavez told Rodriguez that after leaving his cousin's apartment, he was confronted by two Hispanic males wearing dark clothing. One was armed with a shotgun. The man with the shotgun told Chavez not to run or he might get shot. Chavez still ran out of fear, heard a gunshot, and realized he had been shot. Chavez told Rodriguez that his father removed about 25 pellets from his back.
Chavez's cousin told him the shooter went by the name "Thumper." When Rodriguez checked the database, the "also known as" designation showed the nickname belonged to defendant and no one else. Rodriguez prepared a photographic six-pack lineup with defendant's picture in it. After reviewing the photographs for six seconds, Chavez identified defendant as the man who shot him. Chavez did not want to be labeled as a rat and did not want to pursue charges against defendant.
Officer Jimmy Fowler of the Fresno Police Department was on patrol with his partner Officer Chad Soares at 1:30 p.m. on December 28. The officers encountered defendant riding a bicycle and carrying a black bag in a neighborhood where there had been a lot of shootings. During a patdown search, Fowler found a pocketknife in defendant's right pocket. When Fowler asked defendant about the bag, which he had around his neck, defendant pulled the bag over his head, pushed off Fowler, and took off running. Defendant dropped the bag as he ran.
After a chase on foot, defendant lost his balance and fell to the ground. Soares got on top of defendant and the two officers struggled to get him into custody because defendant resisted his arrest until Fowler was finally able to handcuff him. Another officer retrieved the bag. On defendant's person, officers found a small plastic baggie containing a usable amount of methamphetamine, some pills, a shaved key, latex surgical gloves, a red bandana, a can of pepper spray, and a flashlight.
Inside the bag, there was a short-barreled shotgun loaded with one shell in the chamber. The shell appeared to be loaded with birdshot. There were loose, live shotgun shells in the bag. There was also a digital scale in the bag.
Scot Cheney, a division commander with the Fresno County District Attorney's Office, worked for 25 years as a peace officer and was trained in weaponry, taught a lethal methods class involving the use of shotguns, and was certified on the range with shotguns. Cheney taught other law enforcement officers on the use of shotguns. Cheney explained that birdshot consists of very small pellets made of lead or steel compressed into a shotgun shell. Shot size is based on a numbering system where buckshot is 00. Birdshot can be a 7, 8, or 9. Buckshot is large, meaning there are only 12 pellets in a shotgun shell. A number 7 birdshot has 200 pellets in a shotgun shell.
Cheney had never seen a person shot with birdshot before. The length of a shotgun barrel determines how the projectile exits the barrel. A longer barrel leads to a tighter spread of pellets. Looking at a picture of the shotgun found on defendant after his arrest, Cheney noted there was no stock and the barrel appeared to be shortened. Normally a shotgun barrel is not that short. The barrel on defendant's gun was only 13 and a half inches rather than a more standard 28 inches.
Shot exiting a shorter shotgun barrel would disperse more quickly. Cheney would not commit to a distance on the spread of shot from defendant's shotgun except to say the shot would disperse out of the barrel fairly quickly. Buckshot will disperse even with a long barrel at 25 yards. At 30 or 40 yards, using buckshot and long barrel shotgun, one would be lucky to get a couple of shots on a paper target. Shooting at a target a half block away with a short barrel shotgun using birdshot, one would not hit a paper target with any shot.
Anthony Alvarado testified the bag was his and he gave it to defendant to deliver. The bag contained a sawed-off shotgun, shotgun shells, and a digital scale. Alvarado instructed defendant not to look into the bag. Alvarado denied shooting Chavez.
DISCUSSION
1. Motion For Self-Representation
Defendant contends the trial court erred in denying his pretrial Faretta motion to represent himself. The People respond that defendant's motion was equivocal, the court's denial of the motion was without prejudice, and defendant failed to pursue the motion prior to or during trial. We agree with the People that defendant abandoned his Faretta motion.
Background
On November 28, 2011, defendant was represented by counsel from the public defender's office. The trial court granted defendant's motion to represent himself and relieved the public defender as attorney of record. On May 17, 2012, the trial court granted defendant's motion for a continuance to have an attorney appointed to represent him. Soon thereafter, the public defender was reappointed as defendant's counsel. On August 2, 2012, conflict counsel was appointed to represent defendant and the public defender was relieved as defendant's attorney.
On May 9, 2013, defendant again moved to represent himself pursuant to Faretta. At the beginning of the proceedings on May 9, 2013, the trial court denied defendant's motion for police records filed pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. Defendant then said, "I would like to know if I can exercise my right to go pro per, please." The court had defendant fill out a Faretta questionnaire. Defendant indicated in the questionnaire that he had not graduated from high school or college. Defendant had no legal experience, though he had earlier in these proceedings briefly represented himself. Defendant indicated he had no difficulty reading, writing, understanding, or speaking English. Defendant was not taking psychotropic medication or suffering from a mental illness and could express himself in a public forum. Defendant used computer software in jail to do his legal research.
Defendant further indicated he understood the legal significance of an opening statement, hearsay, and a bifurcated trial. Defendant had no knowledge of challenging potential jurors peremptorily or for cause. Defendant did not understand a " Wheeler Motion," evidentiary foundation, redirect examination, motions in limine, or a "Castro Motion." Defendant indicated he would research what he did not understand. Without elaboration, the trial court stated on the record it had read defendant's Faretta questionnaire and, given the information defendant provided, the court denied the motion without prejudice. The court further noted it did not believe defendant was able to represent himself at that time. Defendant never renewed his Faretta motion.
Analysis
A defendant in a criminal case has a constitutional right under the Sixth Amendment to the federal Constitution to represent himself or herself when he or she voluntarily elects to do so. (Faretta, supra, 422 U.S. at pp. 807, 819.) The right to counsel persists until the defendant affirmatively waives that right. (People v. Marshall (1997) 15 Cal.4th 1, 20.) Courts must indulge every reasonable inference against waiver of the right to counsel. (Marshall, supra, at p. 23, citing Brewer v. Williams (1977) 430 U.S. 387, 404; People v. Boyce (2014) 59 Cal.4th 672, 703.)
It is erroneous to deny a Faretta motion for an improper reason as where the trial court denies the motion because the case is a death penalty case. (People v. Dent (2003) 30 Cal.4th 213, 218.) A waiver of the right to self-representation may be found if it reasonably appears the defendant abandoned the request. Abandonment has been found where the defendant initially seeks self-representation, the motion is denied, and the defendant is represented by several court-appointed attorneys and the defendant failed to again request self-representation. (People v. Stanley (2006) 39 Cal.4th 913, 929-932; People v. Tena (2007) 156 Cal.App.4th 598, 610-611.) A Faretta motion made out of temporary whim, annoyance, or frustration is not unequivocal. (Stanley, supra, at p. 932.)
On one hand, defendant merely stated he would like to know if he could exercise his right to represent himself. It was almost as if he were asking permission from the court rather than asserting his right to self-representation. On the other hand, the questionnaire defendant filled out appeared to indicate defendant thought he had the ability to represent himself. Defendant indicated he understood and could read and write English. Although he was unknowledgeable about most of the legal categories listed in the questionnaire, defendant indicated he knew how to use the computer for legal research and would do so for the subjects with which he was unfamiliar. The question concerning whether defendant made an equivocal request to represent himself is close.
Assuming arguendo that defendant did not make an equivocal statement concerning self-representation and properly invoked his Faretta rights, once the trial court denied the request, defendant never again pursued it. Defendant argues it would have been futile for him to do so. We find this argument unpersuasive. First, the trial court denied the Faretta motion without prejudice. Second, there were 10 and a half months between when defendant made the Faretta motion on May 9, 2013, and the beginning of trial on March 20, 2014. Third, Judge Simpson denied defendant's pretrial motion and Judge Hoff presided over defendant's trial. There is nothing in the record to indicate it would have been futile for defendant to renew the motion to Judge Hoff even if it would have been futile to bring it again to Judge Simpson.
Given the lapse of time between when defendant brought the motion, coupled with the fact that he had successfully moved to represent himself earlier in the proceedings when he was still represented by the public defender, we find defendant was sufficiently knowledgeable to understand his Faretta right and understood how to pursue it. Rather than seeking to represent himself at trial, defendant elected to proceed with his appointed conflict counsel. We agree with the People that defendant abandoned his request to represent himself.
2. Sufficiency of Evidence of Attempted Murder
Defendant contends the evidence was insufficient to support his conviction for attempted murder. According to defendant, he lacked the intent to kill Chavez because he only used birdshot to shoot at Chavez and Chavez was a half a block away when he was shot. Defendant argues birdshot is not used to kill humans but small birds, there was no motive for him to kill Chavez, and he had no intent to kill. We reject these arguments.
When a defendant challenges the sufficiency of the evidence, appellate courts must review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. This standard of appellate review is the same in cases in which the People primarily rely on circumstantial evidence. Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury, not the reviewing court, that weighs the evidence, resolves conflicting inferences, and determines whether the People have met the burden of establishing guilt beyond a reasonable doubt. If the trier of fact's findings are reasonably justified under the circumstances, the opinion of the reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Casares (2016) 62 Cal.4th 808, 823-824.) After reviewing the evidence in the light most favorable to the prosecution, we determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Rangel (2016) 62 Cal.4th 1192, 1212-1213.)
Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) An appellate court must accept logical inferences the jury might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before setting aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear there was no hypothesis whatever upon which there was substantial evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Mere intent to commit a crime does not itself amount to an attempt. The defendant must commit an act toward the ultimate accomplishment of the intended crime. If a person formulates the intent and then proceeds to do something more, which in the course of natural events would result in the commission of a crime, the attempt to commit the offense is complete. This is so even if the intended crime could not have been completed due to an extrinsic fact not known to the defendant. He or she is still guilty of attempt. If there is an apparent ability to commit the crime in the way attempted, the attempt can be charged. This is true even though, unknown to the defendant, the crime cannot be committed because the means employed are in fact unsuitable, or because of extrinsic facts such as the nonexistence of some essential object, or because of an obstruction by the intended victim or a third party. (People v. Pham (2011) 192 Cal.App.4th 552, 560.)
Our courts have repeatedly ruled that a defendant who is charged with attempting to commit a crime cannot escape liability because the criminal act he or she attempted was not completed due to an impossibility the defendant did not foresee. Factual impossibility is not a defense to an allegation of attempt. (People v. Pham, supra, 192 Cal.App.4th at p. 560; People v. Reed (1996) 53 Cal.App.4th 389, 396.) When a defendant commits an act based on mistake of fact, his or her guilt or innocence is determined as if the facts were as the defendant perceived them. There need not be a present ability to complete the crime and it is not necessary that the crime be factually possible. (People v. Reed, supra, at p. 396.)
When a defendant is charged with attempted murder, courts do not concern themselves with the niceties of the distinction between physical and legal impossibility. The focus is on the elements of the crime and the defendant's intent. Where the defendant has the requisite criminal intent but elements of the offense are lacking due to circumstances unknown to the defendant, he or she can only be convicted of attempt and not the substantive offense itself. (People v. Rizo (2000) 22 Cal.4th 681, 684-685.)
Defendant argues he could not have harbored the intent to kill Chavez because the shotgun pellets he fired were only birdshot, Chavez was half a block away when he was struck, and birdshot is not lethal. His argument also carries the implication that it was legally impossible for defendant to kill Chavez when he fired the shotgun. As the above authorities demonstrate, legal and factual impossibility do not govern our analysis of whether defendant had the intent to kill. Our focus instead is on defendant's intent when he shot Chavez.
Chavez indicated he was about 18 feet away from defendant when he was struck by shotgun pellets. He later said he was half a block away when this occurred, though Chavez did not define the length of a block in his testimony. Detective Rodriguez also estimated, based on the pattern of pellet strikes he could see on Chavez's back, that Chavez was about 20 feet away from the shooter when he was shot. Investigator Cheney refused to commit to the distance between Chavez and the shooter.
Officer Laband testified birdshot was dangerous. Chavez explained defendant told him to stay in place when Chavez first encountered him, and the two were only five feet away from one another, not 15 or 20 feet apart. Had Chavez followed defendant's command to remain in place, or had he turned away and run much more slowly, defendant's shotgun blast had the potential to be lethal if pellets had penetrated Chavez's spinal cord, lungs, torso, or if they had severed a major artery in Chavez's legs or neck.
There is rarely direct evidence of a defendant's intent. The act of firing at a victim at close, but not point blank, range in a manner that could have inflicted a mortal wound had the shot been on target is sufficient to support an inference of intent to kill. The fact the shooter fired only once toward the victim and then abandoned his efforts does not compel the conclusion the defendant lacked the animus to kill, nor does the fact the victim escaped death due to the shooter's poor marksmanship necessarily establish a less culpable state of mind. (People v. Smith (2005) 37 Cal.4th 733, 741-743, citing People v. Chinchilla (1997) 52 Cal.App.4th 683, 690; see People v. Lashley (1991) 1 Cal.App.4th 938, 944-945.)
Defendant's command for Chavez to remain in place, coupled with defendant's subsequent conduct, evidenced an intent to kill. Only the fact Chavez moved swiftly away from defendant spared him the potential of a lethal, point-blank shotgun blast. Chavez's fleet movement had nothing to do with defendant's demonstrated animus to kill, nor did the use of birdshot establish a less culpable state of mind. The victim's escape from death does not vitiate the intent to kill, and missing a victim's vital organs is fortuitous rather than indicative of the absence of an intent to kill. (People v. Avila (2009) 46 Cal.4th 680, 702-703.) We reject this contention.
DISPOSITION
The judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.