Opinion
2d Crim. No. B194933
8-7-2008
THE PEOPLE, Plaintiff and Respondent, v. LOUIS ARTHUR CALVIN, Defendant and Appellant.
Linda C. Rush, 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, Susan D. Martynec, Lawrence M. Daniels, Supervising Deputy Attorneys General, Robert S. Henry, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
In this case, a real or imagined traffic incident involving two drivers on the highway escalated into a "road rage" encounter. Sadly, but not surprisingly, the "road rage" resulted in the death of one man and life imprisonment for the other.
Louis Arthur Calvin appeals the judgment following his conviction for voluntary manslaughter (Pen. Code, § 192, subd. (a)), shooting from a motor vehicle at a person other than an occupant of a motor vehicle (§ 12034, subd. (c)), shooting from a motor vehicle (§ 12034, subd. (d)), and carrying a concealed weapon (§ 12025, subd. (b)(6)). The jury found true allegations that Calvin personally and intentionally discharged a firearm from a motor vehicle causing death (§ 12022.53, subd. (d)), personally used a firearm (§ 12022.5, subd. (a)), and discharged a firearm from a motor vehicle with intent to inflict great bodily injury or death (§ 12022.55).
All statutory references are to the Penal Code unless otherwise stated.
The two shooting from a motor vehicle offenses set forth in section 12034, subdivisions (c) and (d) will be referred to collectively as the "section 12034 offenses" unless otherwise specified.
Calvin contends there was insufficient evidence to support the section 12034 offenses, the section 12022.53 enhancement was unconstitutionally applied, and the trial court erred in admitting evidence, instructing the jury, refusing to hear an oral motion for new trial, and imposing an upper term sentence in violation of Cunningham v. California (2007) 549 U.S. ___ (Cunningham). We affirm.
FACTS AND PROCEDURAL HISTORY
Calvin and Wayne Shaw drove into the parking lot of a Longs drug store. Shaw got out of his vehicle and stood next to the drivers door of Calvins vehicle, a large van or "mini motor home." Calvin remained inside his vehicle with the engine running. Shaw and Calvin had an angry verbal encounter and Shaw may have attempted to grab or punch Calvin through the open window of Calvins van. Calvin reached into the console of the van, withdrew a .22-caliber handgun, cocked the gun, and shot Shaw while Shaw was standing outside the van. Calvin sped away in his van immediately after the shooting. Shaw died at the scene or shortly thereafter.
Calvin testified in his own behalf that, when he was driving to Longs to pick up a prescription, a vehicle began following him, cut him off, and the driver gestured something. Calvin testified that Shaw followed him into the Longs parking lot, got out of his truck, "stormed" towards Calvins van swearing and yelling, and reached into the van to punch Calvin. Calvin then grabbed the loaded handgun he had in the console of his van, and shot Shaw.
Other witnesses gave differing accounts of the incident. One witness, Indelisa Rodriguez, testified that she heard loud voices and saw Shaw standing in front of Calvins white van. She heard a shot and saw Shaw fall to the ground. Another witness heard "raised voices" which he described as "banter in the parking lot." He turned, heard the gunshot, and saw Shaw fall down. Other witnesses heard the gunshot and saw Shaw falling down or already on the ground.
Witness, Travis Dinsmore, testified that he heard a man, Shaw, walking towards Calvins large van vehicle yelling for Calvin to get out of the van. Shaw was loud and aggressive but had no weapon. Dinsmore testified that Shaw appeared to step up onto the van to reach in as if to throw a punch. Dinsmore heard the gunshot and saw Shaws arm and part of his shoulder inside the van. Calvin immediately sped away.
Calvin was charged with murder (§§ 187, subd. (a)/189), the section 12034 offenses and carrying a concealed weapon. As to the murder count, it was alleged that he personally and intentionally discharged a firearm from a motor vehicle causing death (§ 12022.53, subd. (d)), personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)), and discharged a firearm from a motor vehicle with intent to inflict great bodily injury or death (§ 12022.55). As to the section 12034 offenses, the information alleged that he personally and intentionally discharged a firearm from a motor vehicle causing death (§ 12022.53, subd. (d)), and personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b).)
A jury convicted Calvin of voluntary manslaughter, the section 12034 offenses and the carrying a concealed weapon. As to manslaughter, the jury found true allegations that he discharged a firearm from a motor vehicle with intent to inflict great bodily injury or death (§ 12022.55) and personally used a firearm (§ 12022.5, subd. (a)). As to the section 12034 offenses, the jury found true allegations that he personally and intentionally discharged a firearm from a motor vehicle causing death. (§ 12022.53, subd. (d).)
Calvin was sentenced to a determinate sentence of seven years eight months plus 25 years to life, consisting of the seven-year upper term for discharging a firearm from a motor vehicle at a person other than an occupant of a motor vehicle (§ 12034, subd. (c)) and eight months (one-third of the midterm) for carrying a concealed weapon, plus 25 years to life for the section 12022.53, subdivision (d) enhancement. Sentences for the other offenses and allegations were stayed.
DISCUSSION
Substantial Evidence Supports Section 12034 Convictions
Calvin contends that there was no substantial evidence to convict him of shooting a firearm from a motor vehicle (§ 12034, subd. (d)), or shooting a firearm from a motor vehicle at a person other than an occupant of a motor vehicle (§ 12034, subd. (c)). We disagree.
Section 12034, subdivisions (c) and (d) provide in relevant part: "(c) Any person who willfully and maliciously discharges a firearm from a motor vehicle at another person other than an occupant of a motor vehicle is guilty of a felony . . . . [¶] (d) . . . [A]ny person who willfully and maliciously discharges a firearm from a motor vehicle is guilty of a public offense punishable by imprisonment in the county jail for not more than one year or in the state prison."
In evaluating a sufficiency of the evidence claim, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) All conflicts in the evidence are resolved in favor of the judgment and all reasonable inferences are drawn in its favor. (People v. Kelso (1976) 64 Cal.App.3d 538, 542.) The judgment will be upheld unless there is no substantial evidence to support the conviction under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The section 12034 offenses require that a firearm be discharged "from" a motor vehicle, and Calvin asserts that the word "from" requires the shot to be directed at a destination outside the vehicle. He argues that Shaw was inside Calvins van at the time the shot was fired because he had reached in through the window to punch or grab Calvin. We will assume that section 12034 does not apply to a shot from inside the vehicle at a target inside the same vehicle, but reject Calvins argument that Shaw was inside the van when Calvin shot him.
First, there is substantial evidence that no part of Shaws body was extended inside Calvins van at the time of the shooting. Calvin testified that Shaw reached into the van, and witness Dinsmore testified to seeing Shaws arm and part of his torso inside the van before the shot. Witness Rodriguez, however, testified that she heard the shot when Shaw was standing next to Calvins vehicle, and a forensic pathologist testified that Shaw was shot from a distance of two to three feet.
Second, as a matter of law and common sense, a non-occupant of a vehicle does not become an occupant merely by reaching through an open window with his arm and, perhaps, his shoulder. A person becomes an occupant of a motor vehicle only when his or her entire body or virtually the entire body is inside the vehicle.
Calvin cites People v. Stepney (1981) 120 Cal.App.3d 1016, 1021, where the court concluded that a defendant who shot at a television set while standing inside a house did not discharge a firearm at an inhabited dwelling house for purposes of section 246. The analogy to Stepney does not help Calvin. In Stepney, the defendant was standing inside a room of the house, not leaning through a window.
Calvins citation of People v. Valencia (2002) 28 Cal.4th 1, is also inapposite. In Valencia, the Supreme Court held that removal of a window screen constituted entry of a building for purposes of burglary even if the window itself was not penetrated. (Id., at p. 13.) The considerations involved in interpreting the burglary statute bear no similarity to the considerations involved in interpreting section 12034. Burglary is concerned with protecting against unauthorized entry and is reasonably extended to limited partial entry based on the criminal intent of a burglar. (Valencia, at pp. 6-8, 10.) Section 12034 concerns discharging a firearm "from" a vehicle. A person with his arm extended into a window of the vehicle remains a person who is outside the vehicle and can be the target of a shot fired "from" the vehicle.
Section 12022.53, Subdivision (d) was Constitutionally Applied
Section 12022.53, subdivision (d) imposes an additional 25 years to life sentence on any person who causes great bodily injury or death to another person by discharging a firearm in the commission of various crimes including the section 12034 offenses. Calvin contends that imposition of the enhancement violated his substantive due process and equal protection rights. We disagree.
Section 12022.53, subdivision (d) provides in relevant part: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
The substantive due process principle prohibits arbitrary legislation, and requires statutes to be reasonably related to a proper legislative goal and applied in a reasonable manner. (Nebbia v. New York (1934) 291 U.S. 502, 537; People v. Kilborn (1996) 41 Cal.App.4th 1325, 1328.) "In the exercise of its police power a Legislature does not violate due process so long as an enactment is procedurally fair and reasonably related to a proper legislative goal. The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to solve all related ills at once will invalidate a statute." (Hale v. Morgan (1978) 22 Cal.3d 388, 398.)
A statute may be facially unconstitutional if it cannot be constitutionally applied under any set of circumstances, or it may be unconstitutional as "applied" to a particular set of circumstances. (United States v. Salerno (1987) 481 U.S. 739, 745 & fn. 3; Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181.) Calvin contends that section 12022.53, subdivision (d) violates his substantive due process because, as applied in this case, it reaches conduct that does not rationally relate to its proper legislative purpose.
Calvin contends that the purpose of section 12022.53, subdivision (d), is to deter persons from discharging a firearm from a motor vehicle during a gang-related drive-by shooting and that his offense was neither a drive-by nor gang related. We disagree with this premise.
The Legislatures purpose in passing section 12022.53 was to deter gun violence by imposing substantially longer prison sentences for felons who used a firearm in the commission of certain enumerated crimes. (See Stats. 1997, ch. 503, § 1.) The statute provides for escalating enhancements depending on the level and seriousness of the firearm use, and specifically imposes a 25 years to life enhancement for intentionally and personally discharging a firearm that proximately causes great bodily injury or death. (§ 12022.53, subd. (d).)
In most cases, section 12022.53 covers the use of a firearm in the commission of crimes that are unrelated to drive-by shootings or motor vehicles in general. Only two of the enumerated crimes, the section 12034 offenses, apply to the discharge of a firearm from a motor vehicle and would clearly apply in a drive-by shooting situation.
Moreover, appellate courts have consistently rejected constitutional challenges to section 12022.53. (E.g., People v. Taylor (2001) 93 Cal.App.4th 318, 322-323; People v. Alvarez (2001) 88 Cal.App.4th 1110, 1114-1119; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214-1215; People v. Gonzales (2001) 87 Cal.App.4th 1, 16-19.) Section 12022.53 applies only to felonies committed with a firearm, and the length of the enhancement is based on the gravity of the harm. The ease with which a victim can be killed or injured by a firearm clearly supports a legislative distinction treating firearm offenses more harshly than other crimes. (Alvarez, at p. 1118.)
Calvin argues that section 12034 has the specific purpose of deterring gang-related drive-by shootings and appears to claim indirectly that section 12022.53, subdivision (d) is somehow limited to that purpose when the enhancement is to a section 12034 offense. Calvin, however, does not challenge the constitutionality of section 12034 as applied in this case, and does not support his implied assertion with argument or legal authority. (See People v. Williams (1997) 16 Cal.4th 153, 250 [arguments perfunctorily raised without argument need not be addressed].)
In any event, the purpose of section 12034 is not limited to the deterrence of gang-related drive-by shootings. The statute was amended in 1987 for the broader purpose of making "the shooting of motorists on this states public streets and highways a serious felony offense, and in order to deter persons from violent actions upon our public streets and highways." (Assem. Bill No. 766 (1987-1988 Reg. Sess.) ch. 1147.) In addition, appellate courts have concluded that similar statutes increasing punishment for discharging a firearm from a motor vehicle are not limited to drive-by shootings.
People v. Bostick (1996) 46 Cal.App.4th 287, concerned the application of section 12022.55, another enhancement covering the discharge of a firearm from a motor vehicle that causes great bodily injury or death. The court held that the statute applied to a shooting that was not gang-related or a drive-by on a public street, concluding that the legitimate legislative goals of the statute included deterrence of road rage and street safety. (Id., at pp. 291-292.) The court stated that "firing a gun from a motor vehicle is an especially treacherous and cowardly crime. It allows the perpetrator to take the victim by surprise and make a quick escape to avoid apprehension . . . . The Legislature could rationally have determined that the foregoing considerations justify imposing an increased sentence on the perpetrator." (Id., at p. 292.)
In People v. Rodriguez (1998) 66 Cal.App.4th 157, the court held that the section 190.2, subdivision (a)(21) murder special circumstance for discharging a firearm from a motor vehicle at a person outside the vehicle with the intent to cause death could be constitutionally applied to a murder that was neither a drive-by nor gang related. The court acknowledged that deterrence of drive-by shootings was one purpose of the statute, but concluded that the statute is drafted broadly to increase the punishment for any intentional murder perpetrated by shooting out of a vehicle with intent to kill, and extended to "road rage" murders and other murders perpetrated by shooting out of a vehicle. (Id., at p. 176.)
Calvin argues that it was "mere happenstance" that he was in his vehicle when he shot Shaw. Based on his own testimony, the incident began while he was driving on the highway. Also, it was no "happenstance" that Calvin had a loaded firearm inside the vehicle and next to the drivers seat. (See People v. Rodriguez, supra, 66 Cal.App.4th at pp. 176-177.)
For similar reasons we also reject Calvins contention that the application of section 12022.53, subdivision (d) denied him equal protection of the law. The equal protection principle does not prohibit legislative bodies from making a classification based on gun use and gun use involving a motor vehicle.
No Abuse of Discretion in Admitting Evidence
Calvin contends that he was deprived of a fair trial by the admission of irrelevant testimony from a pharmacy clerk regarding a telephone conversation with Calvin a few hours before the shooting. The trial court ruled that the testimony was admissible under the state of mind exception to the hearsay rule (Evid. Code, § 1250) and as circumstantial evidence of Calvins state of mind. (See People v. Ortiz (1995) 38 Cal.App.4th 377, 389.)
We review the admission of evidence for abuse of discretion, and will uphold a trial courts ruling unless it is arbitrary or capricious and results in a miscarriage of justice. (People v. Brown (2003) 31 Cal.4th 518, 547; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Here, there was no abuse of discretion.
Calvin claimed that he was in the Longs parking lot to pick up a prescription and that Shaw had no legitimate reason for being there. The prosecution did not dispute that Calvin had a prescription to pick up, but offered evidence to show that Calvin was agitated on the drive to the pharmacy. Evidence was offered that Calvin telephoned Longs pharmacy earlier in the day and yelled at the pharmacy clerk who took his call and became angry and mean-spirited. The trial court reasonably could have concluded that the clerks testimony regarding Calvins verbal behavior was relevant to show his state of mind at that time, and had a tendency in reason to prove his state of mind when he came to pick up his prescription a few hours later.
Even if the connection between Calvins state of mind during the telephone call and at the time of the shooting was attenuated, any error in admitting the evidence was harmless. It is not reasonably probable that the jury would have reached a more favorable verdict had the evidence been limited. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Valdez (1997) 58 Cal.App.4th 494, 511.) The evidence was of minimal significance compared to the eyewitness accounts and the fact that Calvin had a loaded handgun in his car.
No Instructional Error
1. Expert Witness Instruction
Thomas Streed, a retired homicide detective and behavioral scientist, testified for the defense regarding the ability of a person under attack to evaluate the level of threat and the degree of force that reasonably could be used to repel the attack. Immediately after Streeds testimony, the trial court instructed the jury with CALCRIM No. 332, the pattern instruction regarding expert witness testimony. The trial court repeated the same CALCRIM No. 332 instruction at the close of evidence.
Calvin does not challenge the accuracy of the instruction, but contends that giving the instruction immediately after Streeds testimony suggested that Streeds testimony be given closer scrutiny by the jury than other expert testimony, and deprived Calvin of the "full benefit" of the testimony. We disagree.
The trial court has discretion to "from time to time during the trial, and without any request from either party" "give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case." (§ 1093, subd. (f).) Here, the trial court did not abuse its discretion in giving the expert witness instruction after Streeds testimony or in repeating the instruction after the close of evidence. (See People v. Murillo (1996) 47 Cal.App.4th 1104; People v. Lamb (1988) 206 Cal.App.3d 397; People v. Valenzuela (1977) 76 Cal.App.3d 218.) In fact, it may well be the better practice to give the instruction immediately after the experts testimony to assist the jury in understanding the testimony in the context of applicable law.
Calvins claim of prejudice relates to the portion of the instruction stating that the jury may disregard any expert opinion it finds unbelievable, unreasonable, or unsupported by the evidence. He asserts that such language may have encouraged the jury to disregard Streeds opinion. The claim is based purely on speculation unsupported by the record or the instruction as a whole which provided an evenhanded presentation of the factors to be considered in appraising expert opinions, namely the reasons given by the experts for their opinions and the information on which the experts relied.
2. Self-Defense Instructions
Calvin contends that the trial court erred in instructing the jury regarding self-defense when it added a paragraph from CALJIC No. 5.12 after instructing the jury with the entirety of CALCRIM No. 505. Calvin does not claim that any portion of the self-defense instructions misstated the law, but argues that the paragraph from CALJIC No. 5.12 was unnecessary and stated the law from the viewpoint of the prosecution and "negatively" to the defense. We disagree.
In relevant part, CALCRIM No. 505 states: "The defendant is not guilty of murder or manslaughter or shooting from a motor vehicle at a person or shooting from a motor vehicle or assault with a firearm if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. The defendants belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified. [¶] When deciding whether the defendants beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendants beliefs were reasonable, the danger does not need to have actually existed. . . ."
The portion of CALJIC No. 5.12 given to the jury in addition to CALCRIM No. 505 states: "A bare fear of death or great bodily injury is not sufficient to justify a homicide. To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone."
The trial court has a duty to accurately instruct on all principles of law relevant to the evidence and in a manner that can be understood by the jurors. (See People v. Alvarez (1996) 14 Cal.4th 155, 217; People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Here, Calvin concedes that the trial courts instructions on self-defense were accurate and complete, and our review discloses no portion of the instructions that were unclear or confusing, nor slanted with a prosecutorial bias.
3. Unreasonable Self-Defense Instruction
Section 12034 requires the defendant to "maliciously" shoot a firearm from a motor vehicle. Calvin contends that an honest but unreasonable belief in the need for self-defense would also negate section 12034 malice, and that the trial court erred by failing to so instruct the jury. We disagree.
It is established that an honest but unreasonable belief in the need for self-defense negates the malice aforethought required for murder and makes the resulting homicide a voluntary manslaughter. (People v. Flannel (1979) 25 Cal.3d 668, 674-680.)
Relying on People v. McKelvy (1987) 194 Cal.App.3d 694, Calvin urges us to apply the same principle to the section 12034 offenses. We decline the invitation. In McKelvy, a single justice concluded that, because mayhem requires a defendant to act "maliciously," an unreasonable self-defense instruction would be appropriate because a person who believes in the need for self-defense cannot be said to act maliciously. (Id., at p. 702 (lead opn. of Kline, P.J.).) No other reported decision has followed McKelvy, or extended it to other general intent crimes and several have expressly rejected it. (People v. Hayes (2004) 120 Cal.App.4th 796; People v. Sekona (1994) 27 Cal.App.4th 443, 457; see also People v. Quintero (2006) 135 Cal.App.4th 1152, 1164-1167.)
The "malice" required for mayhem as well as a section 12034 offense is the "wish to vex, annoy, or injure another person." (See § 7, subd. 4.) The unreasonable self-defense theory for murder is based on the principle that a person who believes in the need for self-defense "lacks the crucial characteristic of `malice aforethought [which is the] awareness that ones conduct does not conform to the expectations of society." (People v. Hayes, supra, 120 Cal.App.4th at p. 802.) In contrast, the wish to "vex, injure, or annoy" connotes a knowing violation of social norms, and is likely to be present even when one acts in reasonable self-defense. (Id., at p. 803, fn. omitted.) Unreasonable self-defense simply has no application to the malicious discharge of a firearm from a motor vehicle.
No Error Regarding New Trial Motion
After the verdict, Calvin obtained several continuances to file post trial motions and eventually filed a written motion for new trial. The trial court considered and denied the motion. At the same hearing, defense counsel orally requested another continuance to consider whether to bring a second new trial motion. The trial court denied the request. Relying on People v. Braxton (2004) 34 Cal.4th 798, 817, Calvin contends that the trial courts denial of this request for a continuance constituted a refusal to "entertain" an oral motion for new trial. We disagree.
A defendant has a right, prior to entry of judgment, to move for a new trial on one or more of various statutory grounds. (§§ 1181, 1191.) If a trial court refuses or neglects to hear and determine such a motion, the defendant is entitled to a new trial if he or she suffers prejudice as a result. (People v. Braxton, supra, 34 Cal.4th at p. 817; § 1202.) Here, the trial court did not refuse or neglect to hear and determine a motion for new trial. The trial court heard and ruled on Calvins new trial motion, but refused to grant another continuance to give defense counsel a further opportunity to explore the possibility of filing a second motion.
A trial court has discretion to deny a motion for a continuance and its ruling will be disturbed on appeal only if there has been a manifest abuse of discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037; People v. Barnett (1998) 17 Cal.4th 1044, 1125-1126.) Here, there is no contention that the trial court abused its discretion and the record shows no such abuse.
Any Cunningham Error Harmless
Calvin contends that the trial court violated his constitutional rights by imposing an upper term sentence based on aggravating factors, other than recidivism, that were determined by the court rather than the jury. We disagree and conclude, as urged by respondent, that any error was harmless.
The United States Supreme Court held that Californias determinate sentencing law violated a defendants Sixth and Fourteenth Amendment right to a jury trial by providing a lower, middle and upper term and requiring imposition of the middle term in the absence of aggravating or mitigating circumstances. (Cunningham, supra, 127 S.Ct. at p. 868.) Cunningham error, however, is subject to the harmless error test prescribed for federal constitutional error. (People v. Sandoval (2007) 41 Cal.4th 825, 839.) "[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Ibid. )
Here, the trial court based its sentence on the following aggravating factors: (1) the crime involved great violence, great bodily injury, or other acts disclosing a high degree of cruelty, viciousness or callousness in that the victim was shot "point blank," was unarmed and posed minimal threat to Calvin who remained inside the vehicle with the engine running, and also because Calvin fled the scene without attempting to contact emergency personnel; (2) The crime shows planning, sophistication, or professionalism because Calvin had armed himself with a weapon that had to be "manually unfolded and cocked;" (3) Calvins violence poses a serious danger to society.
A reasonable jury would have found beyond a reasonable doubt that the crimes involved great violence as well as viciousness and callousness even if it also found that Shaw had initiated the confrontation. It is undisputed that Calvin shot Shaw from close range while he was in the relative safety of his van and Shaw was outside the vehicle, that the van was left running and poised for escape, and that Calvin fled the scene without contacting 911 or otherwise providing assistance.
In addition, a reasonable jury would have found beyond a reasonable doubt that the crimes involved preparation and planning. It is undisputed that Calvin had armed himself prior to the incident with a handgun that he had concealed in the console of his van, and that the gun could not be discharged without being unfolded and cocked.
The judgment is affirmed.
We concur:
GILBERT, P.J.
COFFEE, J.