Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF149796, Darryl B. Ferguson, Judge.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury convicted appellant Amado Amaya, Jr., of attempted murder and assault with a firearm. He challenges the convictions here because (1) the evidence was insufficient to sustain his attempted murder conviction; (2) the trial court erred in admitting evidence of other crimes; (3) he received ineffective assistance of counsel; and (4) the prosecutor committed prejudicial misconduct. The People note that the abstract of judgment does not accurately reflect the sentence imposed by the trial court. We disagree with Amaya’s contentions and will affirm the judgment, with directions to the trial court to prepare a corrected abstract of judgment.
FACTUAL AND PROCEDURAL SUMMARY
On August 7, 2005, William Garcia, Velda Franco, sisters A.S. and S.S., and V.G. were in a car and pulled into a gas station to fill the car with gas. The car belonged to Misty Franco, Velda’s daughter. Misty and Amaya had dated in the past and had a child together. Just before they pulled into the gas station, Amaya passed them in a car headed the opposite direction.
We refer to Velda Franco and Misty Franco by their first names, not out of disrespect but to avoid any confusion to the reader.
Once they were at the pump, Garcia and A.S. got out to put the gas into the car, Velda went inside to pay for the gas, and S.S. and V.G. remained inside the car. Soon, Amaya’s car pulled into the station. Amaya and Teodoro Flores got out and approached Garcia. Amaya and Garcia were standing about six feet apart from each other and were arguing verbally over Misty’s car.
Amaya said he wanted to take Misty’s car and Garcia told him he could not. At one point, Garcia was heard to say, “Well, do what you got to do.” After this comment, Amaya pulled a handgun from his waist and shot Garcia in the abdomen.
After shooting Garcia, Amaya and Flores fled. Flores dropped Amaya off by the river and returned home, where he was arrested. Officers searched for Amaya, but were unable to locate him.
On August 11, 2005, Misty contacted law enforcement to report that her car had been stolen. On August 19, Misty’s car was found in Washington in a desolate area near the Oregon border. Amaya’s fingerprints were located throughout the car.
On June 7, 2007, Amaya was charged with the willful, deliberate, and premeditated attempted murder of Garcia. He also was charged with assaulting Garcia with a firearm. In addition, several firearm and great bodily injury enhancements were alleged. Both counts alleged that Amaya had suffered a prior strike.
A jury found Amaya guilty of attempted murder and found the willful, deliberate, and premeditated allegation not true. The jury also found Amaya guilty of assault with a firearm. The firearm and great bodily injury enhancements appended to both counts were found true. In a bifurcated trial, Amaya admitted the prior conviction allegations.
The trial court sentenced Amaya to a total term of imprisonment of 44 years to life. The abstract of judgment contained in the appellate record, however, reflects a total term of 39 years to life.
DISCUSSION
Amaya makes four contentions here. They are (1) there was insufficient evidence to support the attempted murder conviction; (2) if the evidence was sufficient to establish that he intended to kill Garcia, the conviction must be reduced to attempted voluntary manslaughter; (3) the trial court erred prejudicially when it permitted evidence of a shooting in Vancouver, Washington; and, (4) the prosecutor committed misconduct in closing argument when he appealed to the jury’s passion. In addition, Amaya argues that he received ineffective assistance of counsel because his attorney did not object to the errors listed in items 3 and 4 above.
I. Insufficiency of the Evidence
In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. “‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa); see Jackson v. Virginia (1979) 443 U.S. 307, 319.)
“‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)” (Ochoa, supra, 6 Cal.4th at p. 1206.)
We first consider the mental state required for conviction of attempted murder. “Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 623; see also People v. Swain (1996) 12 Cal.4th 593, 604-605 (Swain).) Hence, in order for Amaya to be convicted of the attempted murder of Garcia, the prosecution had to prove he acted with the specific intent to kill that victim.
Intent to unlawfully kill and express malice are, in essence, “one and the same.” (People v. Saille (1991) 54 Cal.3d 1103, 1114.) To be guilty of attempted murder of Garcia, Amaya had to harbor express malice toward that victim. (Swain, supra, 12 Cal.4th at p. 604.) Express malice requires a showing that the assailant “‘“either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.” [Citation.]’” (People v. Davenport (1985) 41 Cal.3d 247, 262, quoting People v. Velasquez (1980) 26 Cal.3d 425, 434.)
Evidence of motive is often probative of intent to kill. Here, Amaya was acquainted with Garcia, exchanged words with him, and demanded Garcia turn over Misty’s car to him, which Garcia refused to do. Garcia was then heard to say, “do what you got to do,” after which Amaya pulled out his weapon and fired directly at Garcia. These circumstances suggested a motive for Amaya wanting to shoot at Garcia, which in turn was probative of whether he shot at Garcia with intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 742 (Smith).)
Also, it is well settled that intent to kill or express malice, the mental state required to convict of attempted murder, may be inferred from the defendant’s acts and the circumstances of the crime. (See People v. Lee (1987) 43 Cal.3d 666, 679.) “There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range ‘in a manner that could have inflicted a mortal wound … is sufficient to support an inference of intent to kill .…’ [Citation.]” (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690, quoting People v. Lashley (1991) 938, 946 (Lashley); see also People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225.) That inference is not dependent on a further showing of any particular motive to kill the victim. (Smith, supra, 37 Cal.4th at p. 742.)
That Amaya may have fired only once and then fled does not compel the conclusion that he lacked the animus to kill in the first instance. (Lashley, supra, 1 Cal.App.4th at p. 945.) If the jury found Amaya’s use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferred, even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance. (People v. Arias (1996) 13 Cal.4th 92, 162.)
Viewing the evidence in the light most favorable to the People and presuming the existence of every fact the jury reasonably could deduce from the evidence in support of the judgment, we conclude the evidence was sufficient to support Amaya’s conviction of the attempted murder of Garcia.
II. Reduction to Attempted Voluntary Manslaughter
We also disagree with Amaya’s contention that the shooting, as a matter of law, must be reduced to attempted voluntary manslaughter.
Garcia did not provoke Amaya and there was no sudden quarrel or heat of passion. Amaya changed course to follow Garcia into the gas station. Amaya demanded Garcia hand Misty’s car over to him. When Garcia refused, Amaya shot him. Refusing to give in to Amaya’s unlawful demand does not constitute provocation or a sudden quarrel that would reduce the shooting from attempted murder to attempted voluntary manslaughter. To hold so would mean that every victim who refused to give in to a criminal’s demand would have “provoked” a “sudden quarrel” with the criminal and lessened the nature of the offense. Such a holding defies logic and reason, in addition to being unsupported by the law.
III. Evidentiary Error
Prior to trial, the prosecutor filed a motion in limine seeking to introduce evidence of a shooting Amaya committed in Vancouver, Washington, after fleeing to that state. The prosecutor sought to admit this evidence pursuant to Evidence Code section 1101, subdivision (b). The trial court granted the motion.
During his opening statement, the prosecutor informed the jury that he would be calling Aaron Simms to testify that Amaya shot him at a convenience store in Vancouver after “a brief conversation over nothing.” Amaya’s counsel did not object.
The prosecutor, however, did not call Simms to testify during the trial. The prosecutor did call a friend of Amaya’s, Rene Castillo, to testify. Castillo was serving a sentence in Washington state prison. Castillo had told officers in Washington that Amaya admitted shooting Garcia; however, when called to testify, Castillo denied making the statement to officers. Castillo stated:
“We did not even talk about that, that crime. We didn’t even talk about it. We talked about the crime that took place in Vancouver, that’s what we talked about, and about a house [that] was raided.”
At that point, the trial court interrupted and admonished the witness, “We’re not going to get into that. I don’t want you talking about anything you might have been involved in in Vancouver.”
Later, the prosecutor called the Washington state officer who interviewed Castillo to testify. The officer stated that he spoke to Castillo about a shooting in Clark County, but Castillo did not know anything about that. Castillo did tell the officer that Amaya had admitted shooting Garcia.
After both parties rested their case, the trial court instructed the jury as follows:
“During opening statements, the District Attorney made comments regarding some shooting in Washington state. No evidence has been presented regarding any shooting if, indeed, there was a shooting in Washington state. You are to completely disregard any statements made by the District Attorney during his opening statements regarding some shooting that may have occurred in Washington state. There is no evidence that [Amaya] was involved in anything up there or anything like that up there. Please disregard those comments.” (Italics added.)
Just prior to the parties making their closing arguments, the trial court again reminded the jury that:
“Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence and anything else I told you to consider as evidence. Nothing the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.” (Italics added.)
The trial court also reminded the jury that it was to decide the case based solely upon the evidence.
Amaya claims the trial court committed reversible error when it permitted the prosecutor to introduce evidence of the Vancouver shooting. The record discloses, however, that although the prosecutor referred to it in his opening statement, no evidence was presented on this point.
Amaya’s claim that Castillo’s brief mention of a crime in Vancouver and the comments of the Washington State officer who interviewed Castillo constituted prejudicial error fails. Neither Castillo’s comment nor the officer’s testimony implicated Amaya in any crime in Washington State. Thus, the trial court correctly instructed the jury that there was no evidence presented that Amaya had been involved in any crime in Washington State.
The trial court specifically told the jury that no evidence had been presented on the Vancouver incident and to disregard completely the prosecutor’s comments on this point made in the opening statement. The trial court also twice instructed the jury that statements made by the attorneys were not evidence and it was to decide the case based upon the evidence. In the absence of evidence to the contrary, and there is none in the record, the jury is presumed to have followed these instructions. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
Also, as no evidence was admitted erroneously, there could be no ineffectiveness of counsel for failing to object.
IV. Prejudicial Prosecutorial Misconduct
Amaya claims the prosecutor committed misconduct during closing argument by appealing to the jury’s passions and that defense counsel was ineffective for failing to object. Amaya contends the prosecutor committed misconduct when he stated:
“Somebody could have sent their daughter or child or son to that liquor store to pick up a dozen eggs and this individual decides to shoot somebody, what happens if he missed? What happens if a child was shot in this public area?”
In order to preserve a claim of misconduct, a timely objection and request for admonition must be made. (People v. Earp (1999) 20 Cal.4th 826, 858.) The record reflects that no objection was made to any of the prosecutor’s allegedly improper remarks. Therefore, any claim of error is forfeited. (People v. Parson (2008) 44 Cal.4th 332, 359 (Parson).)
Furthermore, the prosecutor’s single comment does not constitute “‘deceptive or reprehensible methods’” (Parson, supra, 44 Cal.App.4th at p. 359) designed to persuade a jury and the trial was not infected with such “‘“‘unfairness as to make the resulting conviction a denial of due process.’”’” (Ibid., quoting Darden v. Wainwright (1986) 477 U.S. 168, 181.) The jury was instructed to disregard comments from the attorneys and decide the case on the evidence. The jury also was instructed not to let bias, sympathy, prejudice, or public opinion influence its decision. We presume the jury followed the instructions and did not decide the case based upon a single, brief comment in closing argument. Thus, reversal under federal constitutional standards is not warranted.
Under state constitutional standards, if prosecutorial misconduct occurs, reversal is warranted if it is reasonably probable a more favorable result would have been obtained. (See People v. Huggins (2006) 38 Cal.4th 175, 208.) Here, the evidence against Amaya was overwhelming. Three percipient witnesses testified and identified Amaya as the shooter.
Amaya alternatively contends that he received ineffective assistance of counsel because counsel failed to object to the prosecutor’s comment. In order to prevail on a claim of ineffective assistance of counsel, Amaya must show both that counsel’s performance was defective and that he was prejudiced as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-692.) Amaya has failed to establish any prejudice because he has not shown a reasonable probability that a different result would have been achieved. (In re Harris (1993) 5 Cal.4th 813, 833.)
V. Correction to Abstract
The People noted in their brief that the abstract of judgment appearing in the record on appeal does not mention the term of imprisonment imposed pursuant to Penal Code section 12022.53, subdivision (d), does not itemize the sentence, and reflects a total term that is less than that pronounced by the trial court at sentencing. We will direct that a corrected abstract of judgment be prepared to reflect and itemize the correct oral sentence imposed by the trial court on October 31, 2007.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and forward copies to the appropriate agencies.
WE CONCUR: GOMES, J., HILL, J.