Opinion
B162153.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. JULIA TERESA BERNARD, Defendant and Appellant.
Gary E. Gibbs, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc J. Nolan and Tita Van Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant of shooting at an occupied vehicle and assault with a firearm. (Pen. Code, §§ 246, 245, subd. (a)(2).) Defendant claims insufficient evidence supported her convictions and that the 1994 revision of CALJIC No. 2.90 is unconstitutional. We deny both claims and affirm the judgment.
BACKGROUND
At the end of a tumultuous relationship, during which Jamal Lewis and defendant lived together, Lewis moved to his mothers home. While Lewis and defendant lived together, he tried to leave defendant several times. Defendant "forc[ed him] to stay, becoming physical . . . [and] very violent . . . ." Lewis and defendant last lived together in November 2000. Defendant called Lewis at his mothers home several times. At first, he tried to talk with her, but her calls became threatening against him or his mother. He thought she was angry because he said he was not willing to renew the relationship.
Lewis and Gregory Mathis, the victim, had been friends for about 14 years. Mathis visited Lewis and defendant frequently during the course of their relationship. In December 2000, Mathis, who was working and going to school, learned they had broken up. In February or March, defendant called Mathis at work, asking why Lewis was not speaking to her. Friendly and cordial, she asked Mathis to ask Lewis to contact her. Mathis tried to reach Lewis to pass on her request, but decided he did not want to become involved, and did not call defendant back.
In February and March 2001, defendant began calling Mathis in the early morning. He told her she should not be calling him so early. He told her he had tried to reach Lewis, that defendant had Lewis number and should simply call him herself.
One early morning, defendant became "a tad bit more irate" on one of these calls. Mathis told her he did not want to be involved any longer. Nonetheless, defendant called again, once or twice a week. She became more aggressive. On the evening of March 22, defendant called, saying she needed to reach Lewis because she and her mother were going to be arrested. The situation sounded "crazy" to Mathis, who reiterated he did not want to be involved in her attempts to contact Lewis. Defendant started screaming and said that if Mathis did not want his mother or his home "`f_____ up" he would stop "hanging around" Lewis. He believed defendant "very capable of doing what she said she was going to do" and was frightened. He hung up on defendant and called Lewis, who had earlier asked Mathis not to reveal Lewis whereabouts. Mathis called the police about 25 minutes after hanging up on defendant.
While the police were interviewing Mathis, defendant called again. An officer talked with defendant, trying to convince defendant to stop harassing Mathis, who had nothing to do with the situation. From what he heard, Mathis concluded defendant had reassured the officer she would not call again. The police left, suggesting that if Mathis still felt threatened, he make a report at the station. Mathis filed a report at the station the next day. Defendant no longer called and talked to him. He began receiving early morning calls which resulted in hang-ups or the sound of a long beep when he answered.
On April 20, Mathis was at work at the Grant School on Harold Way between Hollywood and Sunset Boulevards. Around 5:15 p.m., as he walked to his car, he saw a white Ford Aspire, parked with its front end pointing out from the curb. (Since the incident with defendant, Mathis had paid attention to whether anyone was following him.) Mathis first saw a man in the car, but could not see the drivers position. Mathis car was parked nearby; its front faced in the direction of the Aspire. Mathis began to drive home, but noticed the Aspire following him. A man and a woman driver were in the Aspire. The Aspire missed a turn. Shortly thereafter, the two cars passed each other, traveling in opposite directions. Defendant was driving the Aspire. Concerned, Mathis took a different route home, roughly doubling his normal travel time.
When he arrived home, the Aspire was parked five or six houses from his, pointed in the same direction he was traveling. Mathis stopped and backed up to confront defendant. He rolled down the window. Defendant was crouched down in the drivers seat; the passenger was sitting up. Defendant sat up when Mathis backed up his car, bringing it even with the Aspire. Mathis reminded defendant the police told her "`it was dangerous for you to be around me." This was what the police had told him to tell her. Defendant responded that it was dangerous for Mathis to "mess around with her."
Defendants passenger, a small, thin man, about 35 and wearing a hat, had stepped out of the car. Mathis had never seen him before. Defendant said she just wanted to talk with Mathis and then would leave. Mathis told her to follow him. He planned to lead them to the police station.
Mathis was stopped at an intersection, waiting for the light to change so that he could make a U-turn back toward the station, a large, multi-building facility clearly marked as a police station. As he drove down Venice, preparatory to making a U-turn to reach the station, defendant, driving erratically, first pulled up on Mathis left side, almost hitting his car. He sped up because he thought she was trying to hit him. She fell back and again tried to pull even with him. He pulled ahead again and entered the left turn lane behind a dark-colored pickup truck. Defendant pulled up next to him, on Mathis right, short of the limit line. There was no car in front of her in the lane. Defendant again crouched forward, and her passenger pulled out a gun. The passenger was "getting in a position where he could fire the weapon" into Mathis car, pointing the gun, a revolver, at Mathis. Mathis ducked and heard a shot. Mathis tried to put the car in reverse, but succeeded only in shifting into neutral. The engine revved. He heard defendants car leave very quickly. Mathis went to the station and filed a report. He returned to his car and noticed damage from the gunshot on the window frame and door. He returned to the station and reported the damage. That day, Mathis told Lewis what had occurred. Lewis recalled no calls from defendant after that.
Four or five days later, Mathis drove past defendants house and saw the car she was driving the day of the shooting. He retrieved the license number and gave it to the detective assigned to the case. The detective later concluded a bullet hit the pillar supporting part of the door and roof frame about head high on the passenger side of Mathis car. Mathis had described and drawn the shooter, but the detective was unable to locate him.
Rent-A-Wrecks company records revealed defendant rented the Aspire on April 16, 2001 and that on April 26, she called the company telling them she would be or was out of state and the car could be picked up on the street at her home address. The company retrieved the car and determined it was undamaged. Defendant was arrested at her home on May 16, 2001.
The Defense
Defendant testified to an exemplary background of educational honors, her life as an Army brat, and her seven years in the Navy beginning in 1983. She worked as a naval "police officer" for a while and received an honorable discharge as a Chief Petty Officer. In civilian life, she became a Registered Nurse, graduating "valedictorian and . . . class speaker." At the time of the incident, she was charge nurse in the Intensive Care Unit at Kaiser Permanente Hospital. She had a 16-year-old son and 12-year-old daughter. She had never before been arrested.
She met Lewis through a friend. She found him several jobs at the hospital, and he obtained a series of other jobs. She paid the bills. Her children lived with her sister when she and Lewis lived together. Mathis was a regular visitor.
On the day of the shooting, she was returning home from the hospital with her sick son. She had rented a white Ford Aspire because her car was being repaired. As she and her son walked to the entry gate of her apartment, they encountered "a man" standing outside the gate. He asked when she had last seen her "boyfriend." She thought he was talking about her "new boyfriend," but he was asking about Lewis, who owed him money ($200). The man said Lewis had told him that day was her payday (it was) and that Lewis would get the money from her to pay him. She was unwilling to pay $200 and told the man she had not talked to Lewis and would need to work out something with Lewis. She had cut off ties with Lewis. From the look of the mans greasy hands, she assumed he might have been working on a car for Lewis.
She had previously warned Mathis to be careful because a lot of people were looking for Lewis. He had left a lot of debts, and people came to the apartment looking for him. She was not threatening Mathis.
Early in this encounter with the man, defendant had sent her son into the house. She and the man began arguing. A neighbor came home from a market four or five blocks away and said she had seen Lewis in the markets parking lot. Thinking Lewis might be coming to ask for the money, defendant told the man he would have to wait for Lewis arrival. The man said he had been waiting for her and insisted on receiving the money. She again refused, but offered to drive the man to see if they could find Lewis. She knew Mathis worked at a school across the street from the market.
She and the man drove through the market parking lot. She told the man Lewis was probably visiting Mathis. The man pointed to Mathis and said, "`There he goes right there." Mathis was dumping trash. Defendant and the man toured the market parking lot again and did not see Lewis. She pulled over and told the man she had not seen Lewis and was not going to pay. She asked if he wanted to be dropped at the bus stop or taken home. Given his address, defendant declined to take him home, but said she would take him to the bus stop.
While they were "argu[ing]," Mathis came out of the school, "jumped in" his car and drove off "right at the street in front of us." At the mans urging, so he could ride with Mathis, defendant tried to catch Mathis. She knew where Mathis lived, but it seemed he was not going home, instead driving around in circles. She flashed her lights and honked her horn to get his attention, but Mathis didnt stop. Both cars ended up on Mathis street.
Mathis pulled up to her car and told her it was dangerous for her there. She assumed he was warning her about the man in her car, "but at that time I didnt know that." She said the man was looking for Lewis. Mathis asked why they were following him. She repeated that they needed to talk to Lewis to help out with money. The man started yelling at Mathis, asking where Lewis was. Mathis said Lewis was not there. The two men were yelling. She decided to leave. Mathis pulled forward. That was the mans "cue to get out of the car." Instead, Mathis signaled her to follow him. The man "jumped back" into her car and they followed Mathis, onto the street where Wilshire Station was located. Mathis was going toward a subway station where Lewis had twice worked. Defendant thought Mathis was going to see Lewis and they could resolve the money matter.
Mathis could have gone into the dedicated police station lane. She did, but he passed it. The man became increasingly restless and told her to pull up next to Mathis because he wanted to ask him something. At first she said she would not block traffic. Under his continuous yelling, she pulled up next to Mathis. She noticed a gun in her passengers lap, pointed at her. She jammed on the brakes. The car stopped short of Mathis car, and she went forward "like a crash-test dummy and basically took cover from there." The shot was very loud. She rose and saw Mathis crouched down. The man pushed on her leg as if to tell her to move the car. She was frozen; she thought she was going to die. She took off fast.
Defendant offered to take the man to the bank and get him the money. "Ill drive you to Disneyland if you want to go." She told him she had to call her son and ask him to bring the gate keys to the apartment gate. She called her son from a pay phone, told him to pack his backpack and leave. She tried to call 911 on the same call, but realized the man had walked over. He asked her if she was all right. She said she was, walked around, jumped in the drivers seat and took off, leaving the man.
Defendant drove home. She went inside, called the police and spoke with a woman officer. She related what had happened. She said the man kept saying he was going to get Mathis. She confirmed the threat and gave the officer the mans description and Mathis name and address. The officer said she would send patrols around the Mathis house to look for anyone of that description. Defendants offer to look at "mug shots" was refused.
Defendant had not called Mathis because she wanted to contact or be with Lewis. She called because Lewis had taken her keys and was stalking her.
Defendants brother-in-law, two sisters and her mother spoke highly of defendants character, her academic successes and achievements in the military. They described her as kind and caring.
Rebuttal
Mathis approximated the market was between two and a half and three city blocks from the school where he worked, not across the street, as defendant had testified.
DISCUSSION
I
Defendant says the evidence was insufficient as a matter of law to support her convictions as an aider and abettor of shooting at an occupied vehicle and assault with a firearm. We disagree.
In ruling on such a claim, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, 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." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Defendant contends that nothing in Mathis account of the shooting rebuts her testimony that she had no knowledge her passenger intended to shoot at Mathis. On the contrary, Mathis vividly described his history with defendant leading up to the shooting and the escalating anger she displayed on the telephone when he declined to connect her with Lewis. Defendant described her financial support of Lewis and others contacts with her in an effort to collect money from Lewis. A reasonable jury could have concluded that these contacts caused defendant considerable anger. The short answer is that the jury believed Mathis and did not believe defendant, drawing the reasonable inference from that testimony that defendant and her passenger were hunting Lewis that day. She was driving; her passenger was to do the shooting.
Defendant re-argues testimony to show that the evidence compelled a finding rejecting the prosecutions theory that she wanted to harm Mathis because he would not help her contact Lewis and that the record is devoid of any evidence explaining why she would want to harm Mathis or have someone else harm Mathis while she was present at the incident. Given her background, she says, an assault under the circumstances alleged would be both out of character and stupid, something she was not. She had last spoken with Mathis almost a month before the incident, but a reasonable jury could have concluded that she stopped the early morning phone calls because the police had so advised her and that her frustration at being unable to reach Lewis boiled into anger directed at Mathis, his long-time friend, who told her he did not want to be in the middle of their relationship.
Defendant belittles testimony concerning her temper, but Mathis testimony of her anger was there for the jury to accept or reject, as was her increasing anger exhibited over the course of her phone calls to Mathis.
Defendant says there was no evidence suggesting how she assisted or promoted the shooting nor any evidence that she was aware of her passengers intent or that she did anything to aid or facilitate that act. However, defendant could reasonably have been perceived by the jury as sufficiently angry to retaliate against Mathis.
These matters were for the trier of facts determination on evaluation of the witnesses and their testimony. They are not matters for us to re-try on appeal. Sufficient evidence supported the jurys verdicts.
II
The jury was instructed with the 1994 revision to CALJIC No. 2.90. Defendant claims the deletion of the phrase "moral certainty," especially the deletion of "certainty" in that revision, lowered the prosecutions burden of proof below that of beyond a reasonable doubt and that the remaining phrase "abiding conviction" gave the jury insufficient guidance as to the level of certainty to which it must be persuaded before reliably determining the prosecution had met its burden.
"The contention has no merit. [Citations.] [¶] Consequently, it consistently has been rejected by every appellate district. [Citations.] . . . [¶] We regard the issue as conclusively settled adversely to defendants position. [Citation.]" (People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287; see People v. Aguilar (1997) 58 Cal.App.4th 1196, 1207-1209; People v. Light (1996) 44 Cal.App.4th 879, 884-889.)
DISPOSITION
The judgment is affirmed.
We concur: VOGEL (Miriam A.), J. and MALLANO, J.