Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. MA029006 of Los Angeles County, Kathleen Kennedy-Powell, Judge.
Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Supervising Deputy Attorney General, and Ana R. Duarte, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Kenjuan De Adams appeals from the judgment entered following a jury trial in which he was convicted of premeditated murder and two counts of attempted premeditated murder, with further findings that during the commission of these offenses he personally and intentionally discharged a firearm, causing death or great bodily injury. He was also convicted of possession of a firearm by a convicted felon. Defendant was sentenced to multiple terms of life and 25-years-to-life in prison. He contends that he was prejudiced by being tried with a codefendant who entered a plea during trial, the trial court abused its discretion in refusing to allow defendant to be recalled as a witness and alternatively defense counsel was ineffective in counsel’s examination of defendant, the trial court erroneously restricted cross-examination of a prosecution witness, the jury should have been instructed on voluntary manslaughter, and the finding of great bodily injury as to one of the attempted murder victims was not supported by the evidence and alternatively the great bodily injury enhancement is unconstitutionally vague. We affirm.
BACKGROUND
In the early morning hours of May 22, 2004, a large number of people were gathered in the parking lot of a strip mall in Lancaster that was known as a place to meet when the local clubs had closed. Defendant approached three men who were standing near each other and opened fire with a handgun, discharging numerous rounds. Demone Dozier was hit in the chest and arm and ran to a nearby doughnut shop where he collapsed and died. Ronald Harris and Kenneth Robertson each suffered multiple gunshot wounds but survived.
Harris and Robertson, neither of whom was acquainted with defendant, identified defendant at trial as the gunman. Latrice Long, who had been talking with Dozier and had casually known defendant for several months, identified defendant as having come out from behind a van and shot at the victims.
Wendell Brown, who was sitting in his car at the scene and was not acquainted with defendant, identified defendant from a six-pack photograph display. Brown testified that following the shooting, he saw defendant get into the passenger side of an Aerostar van, which then drove off. Brown called 911 from his cell phone and followed the van. At one point, the van made a U-turn and two shots were fired from the passenger side.
The police soon joined the pursuit, following which the van stopped in front of an apartment complex. The driver and the passenger fled in different directions.
The man fleeing from the passenger’s side, Charles Reynolds, was apprehended inside the apartment complex. A search of his person revealed a small bag of rock cocaine. Retracing Reynolds’s path as he attempted to evade the police, officers found a nine-millimeter Beretta handgun, with an extended clip capacity of 23 rounds.
As officers searched for the man who had fled from the driver’s side, they saw a car parked at the apartment complex with its brake lights illuminated. Further investigation revealed that defendant was inside the car, partially under the dashboard, with his knee against the brake pedal.
Defendant’s fingerprints were lifted from the Beretta and from the outside of the driver’s door of the van. Gunshot residue testing of defendant’s hands conducted soon after defendant was apprehended yielded a particle of such residue, which indicated the possibility that defendant had recently fired a gun. (No gunshot residue was found on Reynolds’s hands.) A total of 21 expended nine-millimeter casings were found at the shooting scene. The casings were determined to have been fired from the Beretta.
Testifying in his own behalf, defendant asserted that he drove to the location where the shooting took place with Reynolds as his passenger. Neither he nor Reynolds was carrying a weapon. While the two were outside the van socializing with others, defendant observed an argument between two groups of people and heard gunshots. Defendant then ran back to the van “to get cover.” When the shooting stopped, he got into the driver’s side of the van and Reynolds got into the passenger’s side. He was scared and drove away quickly.
Defendant continued that as he drove away, he heard gunshots coming from a different direction. At one point, Reynolds showed defendant a gun which Reynolds said he had picked up from the ground. Defendant took the gun from Reynolds, removed the magazine and determined it was empty, and gave it back to Reynolds. Defendant made a U-turn when he realized that he was being followed. Defendant stopped when he saw that the police were in pursuit but did not stay inside the van because he was scared. He ran through the apartment complex and got inside a car, but was not hiding.
Other witnesses testified for the defense that they saw the shooting and that defendant was not the shooter. One of those witnesses, Lakasha Williams, testified that she was interviewed by Detective Stephen Weireter while she was in Las Vegas. During that interview, she said defendant was not the shooter.
A defense forensic expert testified that he would have expected more than one particle consistent with gunshot residue to be on the hands of someone who had recently fired a handgun 21 times. The particle on defendant’s hand could have been acquired by picking up a gun that had recently been fired by someone else.
In rebuttal, Detective Weireter testified that he spoke with Williams while she was in Las Vegas. During that interview, she identified defendant as having committed the shooting.
DISCUSSION
1. Joint Trial with Reynolds
The information in this case alleged that Reynolds (as well as defendant) attempted to murder Brown while the van was being driven away from the strip mall. In addition, it was alleged that Reynolds was an accessory after the fact to the murder of Dozier and attempted murders of Harris and Robertson, and that Reynolds had possessed cocaine. Prior to trial, defendant unsuccessfully moved to sever his and Reynolds’s trials. At the conclusion of the People’s case-in-chief, the trial court granted Reynolds’s (as well as defendant’s) motion under Penal Code section 1118.1 as to the count alleging the attempted murder of Brown. Upon the granting of that motion, Reynolds entered a guilty plea to the remaining charges against him. When proceedings resumed before the jury, the court gave the following admonition:
“Ladies and gentlemen, we have actually resolved Mr. Reynolds’ case. So Mr. Reynolds is no longer a defendant that you are going to have to make any factual determinations about. We only now are left with the charges against Mr. Adams. You’re not to speculate as to what happened to Mr. Reynolds, but his matter has been resolved without any further participation by you folks on his behalf. [¶] So now we’re just going to continue dealing with the trial as it relates to Mr. Adams.”
Defendant concedes that denial of his motion to sever was within the trial court’s discretion. He nevertheless seeks relief under the rule that “[e]ven if a trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process.’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 162.) In this regard, defendant urges a reasonable inference could be drawn from the trial evidence that Reynolds rather than he was the shooter, and that as a consequence the trial court’s admonition regarding Reynolds’s removal from the case “could only be seen as judicial imprimatur on the prosecution’s theory that Reynolds was the far lesser actor in this case.” Thus, according to defendant, the presumption of innocence and fairness of the factfinding process were undermined, as prohibited by Estelle v. Williams (1976) 425 U.S. 501, 503 [96 S.Ct. 1691]. We disagree.
We presume that the jury heeded the trial court’s admonition. (See People v. Fierro (1991) 1 Cal.4th 173, 212.) In any event, we are at a loss to understand how an admonition telling the jury to refrain from speculating why Reynolds had been removed from the case could logically constitute “judicial imprimatur” of the prosecutor’s theory that defendant shot the three victims and that afterward Reynolds assisted defendant in attempting to escape. Accordingly, defendant’s argument must be rejected.
2. Refusal to Permit Recall of Defendant as a Witness
Testifying for the defense, Lakasha Williams stated she that saw the shooter, who was someone other than defendant. Williams continued that while speaking with Detective Weireter in Las Vegas, she failed to identify defendant as the shooter and during that conversation “felt that [Weireter] was getting irritated with me because he did not get the response that he wanted, so then he offered me lunch. I told him I didn’t want to eat. Then he told me he’ll fly me back and forth from Vegas to Los Angeles and I told him, ‘For what?’ Then he really got mad and told me ‘Just tell me who the niggers are who did it because you know who did it.”
Testifying for the prosecution on rebuttal, Weireter denied having used “the ‘N’ word” in speaking with Williams. On cross-examination, defense counsel asked Weireter if he had ever used “the ‘N’ word,” to which the prosecutor’s relevance objection was sustained. Defense counsel next asked, “Detective, do you think that Lakasha Williams is so smart to come into a court of law and say, ‘I am going to help [defendant] by implying that the homicide detective is a racist’? Do you think she did that?” Weireter responded that he did not know why Williams had accused him of using that word. Defense counsel then established that, through discovery, Weireter was aware of Williams’s accusation regarding his language and asked Weireter if he had tried to locate Williams so that she could be called as a witness. The prosecutor’s objections to this line of questioning were sustained.
Some of the questioning on this topic is set forth in greater detail in part 3 of this opinion, post.
Questioning by defense counsel next focused on Williams’s testimony regarding the shooter, following which counsel asked if Weireter had “ever heard of a gentleman who was shot in this area, a Michael Culver?” Weireter responded that he did not, and the prosecutor objected on relevancy grounds. The court called counsel to sidebar, where defense counsel argued: “Your honor, I want to present evidence that Michael Culver, . . . before this event, was shot by the sheriffs up in this area. He is related to my client. And they thought he had a gun. [¶] It goes to the issue of whether or not it was reasonable or not for [defendant] to take off running. In other words, he has some issues with the police in that context. [¶] Very relevant.”
The court sustained the prosecutor’s relevancy objection, commenting that defense counsel should have questioned defendant about Culver when defendant was on the stand. Defense counsel responded that he would like to recall defendant. The court denied the request. Defense counsel next said, “Let’s assume I am a moron lawyer, and I should have asked better questions. That should not deprive me from recalling [defendant].” The court responded, “This whole thing is an effort on your part to further inject racism into this case. [¶] . . . [¶] . . . The whole tenor of this cross-examination has been nothing but an effort to inject racism into this case. And we are not going there — [¶] . . . [¶] — Any further than you have already gone.”
Defendant contends that the trial court abused its discretion in denying counsel’s request to recall him as a witness and alternatively that counsel rendered ineffective assistance in failing to elicit defendant’s reasons for fear of the police while defendant was on the stand.
Irrespective of whether counsel was attempting to inject racism into the case by raising the issue of what had happened to Culver, the court is vested with broad discretion over the order of trial proceedings. (See Pen. Code, § 1094.) During questioning by defense counsel, defendant testified that he did not stay inside the van once it had stopped in response to police pursuit because he was scared, but he was not questioned and did not elaborate on the basis of his fear. Under these circumstances, the trial court acted well within its discretion in refusing to allow defendant to be recalled to the stand to give testimony on a subject that had already been explored in his earlier testimony. (People v. Thomas (1992) 2 Cal.4th 489, 541–542.) The ruling did not deprive defendant of the right to present a defense. (See People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103.)
And assuming that in the course of questioning defendant regarding his fear following the shooting defense counsel should have made inquiry about Culver, ineffective counsel has not been established. To prevail on such a claim, it must be shown that counsel’s transgression resulted in prejudice. (In re Cox (2003) 30 Cal.4th 974, 1019–1020.) Given defendant’s testimony that upon hearing gunfire he became scared and drove away, and that he did not stay in the van once it had stopped because he was scared, defendant could not have been prejudiced by the failure to present evidence that his fear was further based on hearing of a shooting that had occurred on a previous occasion. Accordingly, defendant’s claim of ineffective counsel must be rejected.
3. Impeachment of Detective Weireter
During defense counsel’s cross-examination of Detective Weireter on rebuttal, discussed above, the following colloquy took place.
“Q Now Miss Lakasha Williams, not the district attorney and not the defense lawyer, said, ‘Just tell me who the niggers were.’ [¶] You remember she said that?
“A Oh, I certainly do, yes, Sir.
“Q And if that was tape recorded, the statement, we might know if that’s an accurate statement. But it is not. [¶] So my question is this. You are looking at the jury, of course, going to say, ‘I never would use the “N” word.’ [¶] Is that a correct statement?
“A It is a fair statement and correct statement. I never used the ‘N’ word in that interview. Never.
“Q Well, have you used the ‘N’ word previously?
“A When?
“Q At any time before [Weireter interviewed Williams]?
“[The Prosecutor]: Objection. [¶] What is the relevance of this?
“The Court: The objection is sustained.
“[Defense Counsel]: The relevance is, it is credibility —”
Defendant contends that the court’s ruling was in error because the evidence he sought to elicit was relevant to impeach Detective Weireter’s credibility. But “the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” (People v. Wheeler (1992) 4 Cal.4th 284, 296.) Defendant has failed to show an abuse of discretion in the trial court’s ruling here.
4. Instruction on Voluntary Manslaughter
At trial, various witnesses testified that an argument occurred before the shooting, with one witness stating that within seconds of the gunfire he saw a person hitting his chest “Like King Kong,” saying, “‘Who wants some of this?’” Defendant contends that because of the testimony of these witnesses, the trial court had a sua sponte duty to instruct on voluntary manslaughter based on sudden quarrel or heat of passion and on imperfect self-defense. We disagree.
With respect to sudden quarrel or heat of passion, the fundamental inquiry is “‘“whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion . . . to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.”’ [¶] To satisfy the objective or ‘reasonable person’ element of this form of voluntary manslaughter, the accused’s heat of passion must be due to ‘sufficient provocation.’ [Citation.]” (People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 201; accord, People v. Breverman (1998) 19 Cal.4th 142, 163.)
“Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.” (In re Christian S. (1994) 7 Cal.4th 768, 771.)
In a murder trial, the duty to instruct on manslaughter arises only when evidence has been introduced on which a jury could reasonably base a finding of the manslaughter offense. The court need not instruct when the evidence is “‘minimal and insubstantial.’ [Citation.]” (People v. Barton, supra, 12 Cal.4th at p. 201.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (People v. Breverman, supra, 19 Cal.4th at p. 162.)
The record in this case is devoid of substantial evidence that defendant’s act of shooting was done in response to provocation that would arouse the passion of an ordinary person or that he believed he was in imminent danger from the act of someone else. Accordingly, his contention must be rejected.
5. Enhancement Under Penal Code Section 12022.53, Subdivision (d)
Penal Code section 12022.53, subdivision (d), sets forth enhanced punishment for certain felonies when the defendant “personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in [Penal Code] Section 12022.7, or death, to any person other than an accomplice . . . .” Penal Code section 12022.7, subdivision (f), defines great bodily injury as a “significant or substantial physical injury.”
Defendant contends that the evidence was insufficient to support a finding of great bodily injury as to the attempted murder of Kenneth Robertson and alternatively that the enhancement statute is unconstitutionally vague. Again, we disagree.
At trial, Robertson testified that he was shot three times in his shoulder while he was on the ground in a fetal position. Two bullets “went in one hole.” He was taken to the hospital by ambulance for treatment and at the time of trial still had “little [bullet] fragments” in his shoulder. Under pertinent case authority, such evidence was sufficient to convince a rational trier of fact beyond a doubt that Robertson sustained great bodily injury. (People v. Mendias (1993) 17 Cal.App.4th 195, 201, 205–206; People v. Lopez (1986) 176 Cal.App.3d 460, 465.)
A contention that great bodily injury as used in section Penal Code section 12022.7 (which is referenced in section 12022.53, subd. (d)), is unconstitutionally vague was properly rejected in People v. Guest (1986) 181 Cal.App.3d 809, 811–812. Contrary to defendant’s argument here, nothing in People v. Escobar (1992) 3 Cal.4th 740 alters the validity of this conclusion.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.