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People v. Avery

California Court of Appeals, Fifth District
Jul 22, 2008
No. F053063 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Madera County No. MCR023029E, John W. DeGroot, Judge.

Kyle Gee, 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, Carlos A. Martinez and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

Kane, J.

Defendant Joseph Michael Avery was convicted of first degree murder. On appeal, he contends (1) insufficient evidence supported the conviction, (2) the trial court erred by instructing the jury on premeditated and deliberate first degree murder, and (3) the trial court failed to adequately instruct the jury on aiding and abetting principles as they relate to premeditated and deliberate first degree murder and second degree murder. We will affirm.

PROCEDURAL SUMMARY

On May 15, 2006, the Madera County District Attorney charged defendant and five others (Michael Avery, Jimmy Steele, Timmy Steele, Brent Forehand and Oscar R.) with murder. (Pen. Code, § 187, subd. (a).) The amended information also alleged that they committed the murder while engaged in the attempted commission of a burglary, within the meaning of section 190.2, subdivision (a)(17).

All statutory references are to the Penal Code unless otherwise noted.

A jury found defendant guilty of first degree murder, but found not true the special circumstance that the murder was committed during a burglary. The trial court sentenced defendant to 25 years to life in prison.

FACTS

Orval Robertson lived on a rural, private property with other residents. On the property, which was at least a couple of acres, were trailers, sheds, a tractor and a car. Late on October 16, 2005, at about midnight, Robertson went to a fast food restaurant. When he returned, he found John Emery lying on the property’s private road. Robertson did not recognize him, although he had known him over 20 years, because Emery had been beaten so severely. Robertson roused his neighbors and told them there was a body in the road. After they confirmed the man was dead, they called the police.

Deputy Davis responded to a call for a bicycle accident. When Davis arrived on the property, Robertson was waiting for him and led him down a dirt road to the back of the property. Davis saw Emery lying on the ground in a large pool of blood, bleeding from his head. Davis confirmed that Emery was dead.

Detective Clark arrived on the scene at about 2:30 a.m. He saw Emery lying on the ground next to a bicycle. His body was about 200 feet from a shed.

A search team found a piece of broken wood with blood stains next to two T-shirts in an open field south of the property, about 57 yards from the sheds. The broken wood appeared to be an old bed post. The sheds did not show signs of an attempt to enter them.

A few days later, Detective Clark was informed that a large amount of marijuana had been stolen out of one of the sheds on the property about a week before the night of the killing. It was Clark’s understanding that defendant knew the shed contained marijuana but did not know it was missing, and that Emery had no knowledge of the marijuana.

Detectives Grayson and Saldivar interviewed defendant twice on October 18, 2005. In the first interview, defendant denied any involvement in the killing. He said he was in Dos Palos at a party that night. An hour or two after the first interview, defendant said he wanted to talk, so Grayson interviewed defendant again. In the second interview, defendant changed his story and explained that he, Mike, Jimmy, Timmy and Brent were at Oscar’s house. They all got in Brent’s car and drove out to the property to find some drugs. Defendant picked up a fixed-blade knife he found in the car and Jimmy got an aluminum bat out of the trunk when they got out of the car. At some point, Emery approached on the bicycle and Mike told defendant to hide because someone was coming. Defendant hid behind the shed. He heard someone groaning so he came out to see if one of his friends was hurt. When he did, he saw Emery lying on the ground. Brent had him in a chokehold and asked him where the marijuana was. Emery said he did not know where it was. Jimmy hit Emery on the head with an aluminum bat and Mike hit him on the head and legs with a bedpost. Defendant stabbed him in the leg and the arm. Defendant said he did it because he was drunk. He believed Emery was dead because of the sound the bat made when it hit him. Defendant gave the knife to Mike as they were running to the car, then Mike handed the knife to Brent.

The jury heard an audio recording of both interviews.

Detectives Grayson and Saldivar interviewed Oscar Ramirez the same day. Oscar denied any involvement and said he was with his girlfriend that night. Grayson brought in Sergeant Palmer to help in the interview because Palmer knew Oscar. In the second interview, Palmer was able to get Oscar to “crack” and admit he was involved. Oscar was afraid someone would hurt him and Grayson assured him he would be in protective custody. Oscar said there was supposed to be 11 or 12 pounds of marijuana in trash bags inside the shed on the property. But Oscar did not say that he entered the shed that night. Grayson had inspected the sheds and had not seen any signs of entry; however, there could have been a hole in the roof that he did not see.

At trial, Oscar testified in exchange for a voluntary manslaughter plea. He had known defendant since they were children. Oscar explained that on the evening of October 15, 2005, he was drinking at his house with defendant, Mike, Timmy and Jimmy. When Brent arrived, they all left in Brent’s car to go get some marijuana. Someone had told them there was marijuana in the shed on the property. When they got to the property, they got out and went to the shed. Oscar entered the shed through the roof. He did not find any marijuana inside. When he came out, he told the others there was no marijuana in the shed. They stood around for a minute, then Emery rode by on a bicycle. Oscar jumped out from behind the trailer and started talking to Emery. Oscar asked him where the marijuana was. Emery said he did not know what Oscar was talking about. Oscar told him to stop lying and he hit Emery. After Oscar hit Emery, Timmy hit him and knocked him off his bicycle. Oscar and Timmy kicked him a few times and the other four rushed in and started beating him. Oscar and Timmy backed up as the others moved in and beat Emery. Oscar watched in shock. Jimmy hit Emery in the head with a bat. Mike kicked him and defendant hit him. Brent handed defendant a knife. Oscar, Timmy and Brent took off running back to the car. When the other three returned to the car, they had blood on their hands. Oscar was scared. They drove to a bar where they sat in silence.

Oscar identified one of the T-shirts found in the field as his brother’s. Oscar said Mike had taken it to the property that night.

Dr. Avalos, the pathologist, conducted an autopsy on Emery’s body. Emery had suffered significant head trauma. His face was swollen, bruised and bloody. His nose was broken and he had abrasions and lacerations on his face. Several lacerations on his scalp indicated blunt impact from an item such as a baseball bat. Before he died, he had suffered a stab wound in the lower chest, which was about five-eighths of an inch wide and about one and one-quarter inches deep. Emery’s upper left arm bore another stab wound that occurred before death. Dr. Avalos believed Emery died as a result of multiple blunt impact injuries to his head, not as a result of the stab wounds.

Defense Evidence

Sergeant Palmer informed the detectives that he knew Oscar. He had been Oscar’s football coach for one season in high school. They got along well and had a good relationship. Palmer offered to help because he knew a murder had been committed and he wanted Oscar to tell the truth.

In the first interview, Oscar denied any involvement and gave no information regarding the incident. He said he was not present at the crime. During the second interview, Palmer encouraged Oscar to be honest. He told him it was a serious case and he was facing serious consequences. Even when Oscar changed his story, he did not admit to breaking into the shed.

On cross-examination, Palmer explained that Oscar became very upset and started to cry during the interview. It was difficult to extract information from him.

DISCUSSION

I. Sufficiency of the Evidence

Defendant contends the evidence was insufficient to support his conviction for first degree murder because there was no evidence of planning, of a prior relationship to suggest a motive, or of a particular and exacting manner of killing. He maintains the killing was a violent outburst committed on a person not known to the group of assailants. We disagree.

“An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite reflection need not span a specific or extended period of time. ‘“‘Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly .…’”’ [Citation.]” (People v. Stitely (2005) 35 Cal.4th 514, 543.) “The law does not require that an action be planned for any great period of time in advance.” (People v. Rand (1995) 37 Cal.App.4th 999, 1001.) “Premeditation and deliberation are not to be confused with a deliberate intent to kill. Premeditation and deliberation require ‘substantially more reflection; i.e., more understanding and comprehension of the character of the act than the mere amount of thought necessary to form the intention to kill.’ [Citation.] It is therefore ‘obvious that the mere intent to kill is not the equivalent of a deliberate and premeditated intent to kill.’ [Citation.] Consequently, an intentional killing is not first degree murder unless the intent to kill was formed upon a preexisting reflection and was the subject of actual deliberation and forethought. [Citation.]” (People v. Van Ronk (1985) 171 Cal.App.3d 818, 822-823.)

When deciding whether the evidence supports the jury’s conclusion that a murder was committed with premeditation and deliberation, “[a]ppellate courts typically rely on three kinds of evidence ... motive, planning activity, and manner of killing. [Citations.] These factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. [Citation.]” (People v. Stitely, supra, 35 Cal.4th at p. 543.) These categories, however, “are descriptive, not normative. ‘The goal of [the creation of these categories] was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.’ [Citations.]” (People v. Davis (1995) 10 Cal.4th 463, 511.)

In this case, the prosecution’s theory was that defendant acted with premeditation and deliberation when he aided and abetted the killing of Emery. To support its theory, the prosecution presented evidence of planning. Three of the six assailants armed themselves -- defendant had a fixed-blade knife, Brent took a bat, and Mike carried a wooden bedpost. It was reasonable for the jury to infer that the purpose of these weapons was to kill someone the group might encounter during their criminal endeavor. The shed was in a rural residential area and it was not unlikely that they would encounter someone, even late at night. The prosecution also presented evidence of motive. The men killed Emery because they were angry that he would not tell them where the marijuana was, and possibly also because he was a witness to their endeavor.

The combination of these two types of evidence was sufficient to support the finding that defendant and his cohorts were prepared to attack anyone who interfered with the successful perpetration of their plot to steal the marijuana, including someone who refused to cooperate, or someone who simply happened by at the wrong time. (See, e.g., People v. Salas (1972) 7 Cal.3d 812, 824-825 [jury could reasonably have inferred defendant from the beginning planned to kill anyone interfering with successful perpetration of armed robbery and could reasonably conclude defendant killed in accordance with that plan].) Furthermore, there was evidence that defendant’s attack on Emery was no rash, violent outburst, but that defendant moved in and joined the attack after it had begun. Accordingly, defendant had time to reflect on whether he would be part of the fatal attack on Emery.

In sum, there was substantial evidence from which the trier of fact reasonably could have determined that defendant acted with premeditation and deliberation when he attacked Emery.

II. Instruction on Premeditation and Deliberation

Defendant also argues there was insufficient evidence to support instruction on premeditation and deliberation. As we have concluded above, there was substantial evidence the killing was premeditated and deliberate. Therefore, the trial court properly instructed on premeditation and deliberation. (See People v. Breverman (1998) 19 Cal.4th 142, 154 [trial court must instruct on general principles of law relevant to the issues raised by the evidence].)

III. Instruction on Aiding and Abetting

Defendant asserts that the instructions were inadequate on aiding and abetting principles as they apply to premeditated and deliberate first degree murder and second degree murder. This argument also fails.

It is true that as an aider and abettor, defendant did not have to premeditate and deliberate personally; it would have been sufficient that Jimmy, who struck the fatal blow, premeditated and deliberated and that defendant then aided and abetted his commission of murder. (People v. Sanchez (1995) 12 Cal.4th 1, 33-35.) The prosecution’s theory, however, was that defendant premeditated and deliberated. Accordingly, the trial court instructed the jury on aiding and abetting (CALCRIM Nos. 400, 401) and on murder (CALCRIM Nos. 520, 521). Defendant failed to request further instruction on the subject. Moreover, any error in failing to further instruct that defendant’s liability could have been based on Jimmy’s mental state and not just his own benefitted defendant because the instructions as given limited the jury’s consideration to the prosecution’s direct aider and abettor theory of liability.

DISPOSITION

The judgment is affirmed.

WE CONCUR; Levy, Acting P.J., Cornell, J.


Summaries of

People v. Avery

California Court of Appeals, Fifth District
Jul 22, 2008
No. F053063 (Cal. Ct. App. Jul. 22, 2008)
Case details for

People v. Avery

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSEPH MICHAEL AVERY, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Jul 22, 2008

Citations

No. F053063 (Cal. Ct. App. Jul. 22, 2008)