Opinion
F059114 Super. Ct. No. F09903615
08-08-2011
THE PEOPLE, Plaintiff and Respondent, v. OMAR JUAN CASILLAS, Defendant and Appellant.
Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge.
Sara H. Ruddy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Omar Juan Casillas was convicted of assault with a deadly weapon and various other charges arising from a neighborhood shooting. On appeal, he contends (1) insufficient evidence supported the conviction for assault with a firearm and (2) the trial court erred in denying his motion for disclosure of juror identifying information. We will affirm.
PROCEDURAL SUMMARY
On July 21, 2009, the Fresno County District Attorney charged defendant with shooting at an inhabited dwelling (Pen. Code, § 246; count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 3), carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1); count 4), discharging a firearm with gross negligence (§ 246.3, subd. (a); count 5), and assault with a deadly weapon (§ 245, subd. (a)(1); count 6). The information further alleged that, as to counts 2 and 6, defendant personally used a firearm (§ 12022.5, subd. (a)), and that he had served two prior prison terms (§ 667.5, subd. (b)). The trial court granted the prosecution's motion to dismiss count 6.
All statutory references are to the Penal Code unless otherwise noted.
A jury found defendant guilty as charged on counts 1 through 5, and the trial court found the prior prison term allegations true.
Defendant unsuccessfully moved for an order to examine jurors or to disclose personal juror information.
The trial court sentenced defendant to a total of 15 years in prison, as follows: the midterm of three years on count 2, plus 10 years for the firearm use enhancement and two years for the prison term enhancement. The court stayed the terms on counts 1, 3, and 4 pursuant to section 654, and granted the prosecution's motion to dismiss count 5.
FACTS
On June 18, 2009, at about 12:30 p.m., Martin and Michael went to the house of their friend, Oscar, to play video games and drink alcohol. Michael had a key and Oscar let them stay at his house while he was gone.
Oscar's house was a separate building, but it was part of a four-unit apartment complex. The complex was on the east side of the street, which ran north and south. The four small houses sat sideways on the lot with their front doors facing each other in sets of two. A walkway perpendicular to the street ran from the sidewalk, through the complex, past all the front doors, and toward the back of the lot to a parking lot and alley. The complex was surrounded by a chain-link fence with a front gate where it intersected the walkway and a back gate at the alley. A second, higher chain-link fence was several feet inside the first fence. It ran between the two front houses and, like the first fence, had a gate where it crossed the walkway. The space between the two fences was the front yard of the complex. Photographs taken that evening showed both gates open. Oscar's house was one of the two houses close to the street. The west wall of his house, which was parallel to and near the street, contained three windows. The northernmost window opened into the bedroom, and the middle and southernmost windows opened into the living room. The front door of the house was on the south wall, around the corner from the southernmost window.
That evening, a shooting occurred in front of the complex. The events were explained somewhat differently by Martin and Michael, so we describe their testimony separately.
Martin testified that he and Michael were playing video games in Oscar's living room. Arturo, another friend, had left and gone down the street. When Martin and Michael went outside to the front porch to have a beer, they heard a verbal argument coming from down the street, a few houses away. Martin saw three or four people, including Arturo and his father, arguing in the street. About three minutes later, Martin went back inside, leaving the front door open. He was in the living room on his way to the bathroom when he heard a gunshot. The southernmost window on the west wall in the living room broke and he initially thought someone had thrown a bottle through the window. From the bathroom doorway, he looked out the open front door and saw Michael, Arturo, and Arturo's father running past the front of the house and toward the back of the lot. Arturo and his father turned and ran around the east side of the house. Michael continued running straight back. When Martin heard a second shot, he slammed the bathroom door and got on the floor. Through the bathroom window, he saw Arturo and his father jump the wooden fence between the complex and the neighboring lot. Martin waited about a minute in the bathroom, then went outside onto the porch. He saw bullet holes and the broken window. He never saw the shooter. While Martin stood on the porch, Michael walked back to the house and told Martin that someone shot at him. They stood there until the police came.
Martin was drunk, but he testified that he told the police the truth. He had been drinking since about 2:00 p.m. Martin did not tell the police about Arturo or his father that night because he did not want to, but he later told the detective. After the police left, Martin and Michael went back inside the house, picked things up, locked the house, and left.
Michael testified that he and Martin went to Oscar's house at about 12:30 p.m. to play video games and that Oscar left them there. They sat in the living room getting drunk and playing video games. At about 3:30 or 4:00 p.m., Arturo arrived. Arturo's father was not present. At about 5:30 or 6:00 p.m., the three men went outside onto the porch. Michael saw defendant walking north on the sidewalk in front of the complex. Arturo, who was Michael's girlfriend's cousin, "started talking crap" to defendant. Defendant just kept walking, as though he did not want any trouble, but when he came back and walked down the other side of the street, Arturo started up again. Michael wondered why Arturo would be starting trouble in someone else's neighborhood. Arturo and defendant made eye contact and Arturo gave defendant an angry look and "[j]ust [kept] talking crap." Defendant looked at Arturo with a "[w]hat are you doing this for, what's your problem[?] type of stare." Defendant continued walking and Arturo "just kept ... walking after him ...." Michael went inside to get a beer and when he returned, Arturo was gone. Michael asked Martin where he was, and Martin told him Arturo went down the street. Michael set down his beer and went to get Arturo. Defendant and Arturo were in the street getting ready to box. Michael ran toward them and told Arturo to go back to the house with him. They went back and defendant left. Arturo stood on the porch steps and Michael stood on the walkway in the front yard in the area between the two fences. Michael was drinking a beer. A minute or two later, defendant pulled up in front of Oscar's house in a black and white pickup truck, jumped out, and stood by his tailgate. There were a few neighbors outside, but no one in defendant's vicinity. Michael saw defendant get out of the truck, but he did not see a gun. Michael heard Arturo say something to defendant about a paintball gun, such as, "F that paintball gun. F you and that paintball gun." At that point, defendant fired the gun. Michael was only 15 to 20 feet away. Michael recognized the sound of a shotgun and his ears started to ring. Michael did not see defendant shoot the gun because he was drinking the beer and his head was back and his eyes were pointing upward, but he believed the first shot hit the bush and the house. After the first shot, Michael turned and took off running down the walkway toward the back of the lot. He was nervous and scared. He heard a second shot just as he passed Oscar's house, and he heard Arturo jumping the side fence. As Michael reached the back of the complex, he heard the third shot. He estimated that the shots were separated by one or two seconds. While Michael stood at the locked alley gate, he realized the police had already arrived, so he returned to the house. He was still shaky. He saw that the southernmost window on the west wall was "blown out" and the tree or bush by the window had a "big old hole blown out through it." Michael did not know where the third shot went. He told the police that the shooter's name was Omar and he described his truck and his clothing in detail. Michael went with the police immediately to identify defendant's truck, which they found one block away. Later that night, an officer showed Michael a photographic lineup, but Michael did not recognize anyone. About 30 minutes later, Michael was shown a second photographic lineup and he identified defendant.
Michael did not know defendant, but he would see him at the store and they would greet each other.
Michael testified that he thought Arturo must have run through the house and jumped out the bathroom window, which was open. Michael thought Arturo ran into the bathroom as Martin was coming out, jumped out the window, then jumped over the fence.
Officer Galaviz arrived within seconds of receiving the dispatch because she was already in the area responding to a call regarding the fight in the street.
At trial, Michael explained that the first shot was not fired in his direction. He said, "It wasn't [directed] at me. I was close, really close to where I could have been hit." He also testified, "If [defendant] wanted to hit me, he could have. He was so close." Michael explained that he was closer to defendant than Arturo was. Michael remembered telling an investigator that he thought defendant wanted to scare Arturo, "[p]robably to get him to stop doing what he's doing because he's a knucklehead." Michael told the investigator: "[I]f [defendant] wanted to shoot me, he would have shot me. I was so close. I mean, why not? Target is a target."
When Detective Rivera arrived on the scene, he spoke to Michael and began an investigation to find defendant. Rivera observed that the southernmost window on the west wall of the house, closest to the front door, had been shot. The glass was broken and there were numerous small holes in the screen, apparently made by the shotgun pellets and wadding. Inside, glass was on the carpet under the window, but no pellets were found because small shotgun pellets are typically difficult to find. Three expended shotgun shells were found in the front yard on both sides of the outer fence. They were approximately equidistant from each other and within a range of about 40 feet.
Detective Rivera explained at trial that a shotgun is "really like a point [and] shoot type of weapon. . . . You would aim this at an area of what you're trying to hit. . . . [O]nce you fire it based on your distance you're gonna get a spatter—you're gonna get a pattern of all the pellets in there if you're shooting bird shot or buck shot. So really it's a point [and] shoot weapon."
After the black and white truck was found, police searched it, but found nothing. Meanwhile, Michael was shown a photographic lineup that included the registered owner of the truck, but Michael did not recognize anyone in it. A second lineup was created after Michael told Detective Rivera defendant's name, and Michael quickly identified defendant from this lineup.
A few days later, defendant was arrested at his residence on the same street as Oscar's house, but a gun was not found.
The parties stipulated that defendant had previously been convicted of a felony.
Defense Evidence
The crime scene technician testified that she found three expended shotgun shells in the front yard, about 10 or 15 feet apart. She found no fingerprints on the shells, and she found no ballistic evidence inside the living room. She explained that bird shot is very difficult to locate.
On cross-examination, the technician stated that she found glass shards on the inside of the broken window. She explained that, depending on the size of the shotgun pellets, they can be very difficult to recover, especially in a cluttered and carpeted room, as in this case.
Immediately after the shooting, while Michael was still agitated, he told Officer Galaviz that he had been standing inside the fenced front yard when defendant pulled up in a white Chevy pickup, got out of the truck, pulled out a 12-gauge shotgun, and fired one round toward him. Michael took off running and heard two more shots. Defendant got back in the truck and drove away. Michael described the truck and said he knew defendant. He said defendant sold drugs and walked to the store.
Martin told Officer Galaviz that he was in the bathroom when he heard the three shots. Martin never mentioned Arturo, Oscar, or the argument down the street. Martin was not talkative.
District Attorney Investigator Perez interviewed Martin and Michael in August 2009. Martin never mentioned Arturo and he did not remember if defendant was involved in the argument on the street. Martin did not volunteer much information and was not very cooperative. Michael mentioned Arturo, but said he did not know him well and did not know his last name. He said Arturo and defendant stared at each other and said nothing. Michael said defendant returned in the truck after 15 or 30 minutes. Michael said he saw defendant get out of the truck with a shotgun. Arturo told defendant to "get out of here with that paintball gun," and defendant started shooting. Michael said he saw defendant shoot the gun. He said defendant was 10 to 12 feet from him, and if defendant had wanted to kill them, they would be dead.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support his conviction for assault with a firearm against Michael because the evidence did not support the inference that defendant aimed at or intended to shoot Michael. Instead, defendant asserts, the evidence merely demonstrated that he intended to frighten Michael. Defendant argues that the fact that no shotgun pellets hit Michael indicated that defendant did not fire in his general direction, and thus the evidence failed to establish that defendant willfully and knowingly took an action that by its nature would probably and directly result in a battery against Michael. We conclude the evidence was sufficient.
A. Law
"'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) "It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact." (People v. Tripp (2007) 151 Cal.App.4th 951, 955; People v. Young (2005) 34 Cal.4th 1149, 1181.) We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Although we review the whole record, "[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296; People v. Panah (2005) 35 Cal.4th 395, 489.) Furthermore, "'"'[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.'" [Citations.]' [Citations.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1329.)
Section 245, subdivision (a)(2) prohibits "an assault upon the person of another with a firearm." Section 240 defines an assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." These statutes do not require that a defendant fire, or even point, a weapon at the victim. As our Supreme Court explained a long time ago, "Holding up a fist in a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault. So, any other similar act, accompanied by such circumstances as denote an intention existing at the time, coupled with a present ability of using actual violence against the person of another, will be considered an assault." (People v. McMakin (1857) 8 Cal. 547, 548.) "Assault with a deadly weapon can be committed by pointing a gun at another person [citation], but it is not necessary to actually point the gun directly at the other person to commit the crime." (People v. Raviart (2001) 93 Cal.App.4th 258, 263 [defendant was confronted by two officers and drew loaded handgun with intent to shoot; he assaulted both officers even though he only managed to point the gun at one of the officers before they both shot him]; see also People v. McMakin, supra, at pp. 547-548 [defendant drew "a Colt's revolver, which he held in a perpendicular line with the body of [the victim], but with the instrument so pointed, that the ball would strike the ground before it reached" the victim; this constituted an assault because defendant "put himself in a position to use the weapon in an instant, having only to elevate the pistol and fire"]; People v. Thompson (1949) 93 Cal.App.2d 780, 782 [defendant pointed gun toward two deputies, aiming between them and pointing gun downward; while defendant "did not point the gun directly at them or either of them, it was in a position to be used instantly"]; People v. Hunter (1925) 71 Cal.App. 315, 317-319 [defendant attempted to draw a pistol from his sock to shoot his wife, but she jumped out the window before he could do so; "evidence [was] ample to show that the defendant had the intention and the present ability to kill his wife"].) It is enough that the defendant bring the gun into a position where he can use it against the victim. (People v. Raviart, supra, at p. 266.) "When there is any competent evidence before the jury to show the intent to commit an assault, it is for them to determine the question of intention." (People v. McMakin, supra, at p. 548.)
B. Analysis
Here, there was evidence that defendant, fresh from an argument with Arturo, arrived at the house with a shotgun. He got out of the truck, walked to the back of the truck, was insulted by Arturo, and started shooting. The first shot broke the window and may have been intended for Arturo, who was standing nearby on the porch. After that shot, Arturo and Michael took off running. Michael did not think defendant intended the shot for him because he was close and would have been an easy target to hit. But, Michael did not remain an easy target after the first shot and, notably, after the shooting, Michael stated both that defendant tried to shoot him and that defendant shot toward him.
We conclude reasonable jurors could infer that defendant intended at least one of the shots for Michael. Defendant had possession of a shotgun in a position where he could have used it against Michael, who was just feet from him, had Michael not taken evasive action. Just because Michael managed to flee before defendant could point the shotgun at him did not relieve defendant of criminal liability. The evidence supported the inference that defendant intended to injure Michael. Thus, there was sufficient evidence to sustain the conviction for assault with a firearm.
II. Motion for Disclosure of Juror Identifying Information
Defendant contends the trial court erred by denying his motion to release juror information to the defense. He argues that the court correctly found juror misconduct, but erred in concluding that the facts stated in his petition did not constitute good cause for release of the information. We see no abuse of discretion.
A. Facts
After the jury returned its verdict in this case, defendant filed a petition for the disclosure of juror identifying information pursuant to Code of Civil Procedure section 237. In support of the petition, defense counsel filed a declaration in which he explained that he had spoken to many jurors after the verdict was announced. The foreperson told him that juror number five told the entire jury that she had lived in Oscar's apartment complex 18 years earlier. She shared information with the jury about the physical layout of the complex, including details of the interior floor plans, the size and shape of the windows, and possibly the layout of the grounds. Juror number five was later excused for medical reasons. The prosecution filed a written opposition to defendant's petition. Following argument from both counsel, the trial court concluded juror misconduct had indeed occurred, but for various reasons was not prejudicial.
B. Law
"After a jury convicts a defendant, defense counsel will often wish to interview jurors (or have them interviewed by an investigator). 'It is not uncommon at the conclusion of a criminal trial for the attorneys representing a convicted defendant to attempt to contact jurors to discuss the case with them. This procedure is usually employed in an effort to learn of juror misconduct or other information that might provide the basis for a motion for a new trial.' [Citation.] While counsel may wish to inquire whether misconduct prejudiced their clients, jurors often want to keep their contact information confidential. 'Discovery of juror names, addresses and telephone numbers is a sensitive issue which involves significant, competing public-policy interests.' [Citation.]" (People v. Tuggles (2009) 179 Cal.App.4th 339, 380.)
Disclosure of juror personal identifying information is governed by sections 206 and 237 of the Code of Civil Procedure. In a criminal case, records containing juror identifying information are sealed—"extracted or otherwise removed from the court record." (People v. Carrasco (2008) 163 Cal.App.4th 978, 989.) Following a verdict, a defendant may "petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. . . . The court shall consider all requests for personal juror identifying information pursuant to Section 237." (Code Civ. Proc., § 206, subd. (g).) "The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release" of the requested information. (Code Civ. Proc., § 237, subd. (b).)
The question in this case is whether the facts alleged in defendant's petition constituted good cause. People v. Rhodes (1989) 212 Cal.App.3d 541 (Rhodes)sets forth the applicable test for good cause in this context. The party seeking disclosure must "set[] forth a sufficient showing to support a reasonable belief that jury misconduct occurred, that diligent efforts were made to contact the juror[] through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial." (Id. at p. 552; accord, People v. Wilson (1996) 43 Cal.App.4th 839, 850-852.) There is no good cause where allegations of jury misconduct are speculative, conclusory, or unsupported, or where the alleged misconduct is not "of such a character as is likely to have influenced the verdict improperly." (Evid. Code, § 1150, subd. (a); see Rhodes, supra, at pp. 553-554.)
Even though Rhodes was decided before the updating of section 206 and the enactment of section 237 of the Code of Civil Procedure, the Rhodes test remains applicable. (People v. Carrasco, supra, 163 Cal.App.4th at p. 990; People v. Jefflo (1998) 63 Cal.App.4th 1314, 1321-1322, fn. 8.)
Trial courts have broad discretion to allow, limit, or deny access to jurors' personal contact information (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1091; People v. Tuggles, supra, 179 Cal.App.4th at p. 380), and we review the denial of a petition filed pursuant to Code of Civil Procedure section 237 for an abuse of discretion (People v. Jones (1998) 17 Cal.4th 279, 317; People v. Carrasco, supra, 163 Cal.App.4th at p. 991).
C. Analysis
Here, the juror misconduct was not likely to have influenced the verdict improperly. The juror revealed information about the interior floor plan of the houses in the apartment complex and possibly about the grounds around the houses. After reviewing the record fully, we cannot imagine how this information could have had any effect whatsoever on the verdict. During trial, the interior floor plan of Oscar's house was explored in all relevant regards, and the exterior of the house and the relevant aspects of the grounds were developed in detail. Many photographic exhibits were introduced and multiple witnesses explained the features of the house and complex.
Defendant asserts that the size of the bathroom window was important because Arturo may have jumped through it before he jumped over the fence, and the photographic exhibits did not show the bathroom window. But we see no relevance to this issue, other than perhaps to impeach the credibility of the witnesses who testified to conflicting stories about Arturo's path to the fence. Whether Arturo ran through the house, out the window, and over the fence, or ran around the outside of the house and over the fence had no effect on the issues arising from defendant's shooting a shotgun three times in front of Oscar's house. We do not see how the information related by the juror could have harmed defendant, nor do we believe further investigation of the misconduct was necessary for the court to rule on a motion for a new trial. Accordingly, the trial court did not abuse its discretion when it denied the motion to disclose juror information based on a lack of good cause. We note that although we disagree with defendant's argument that we must independently review the trial court's conclusion that defendant failed to establish good cause, if we were to apply such a standard, we would still conclude good cause was not shown.
DISPOSITION
The judgment is affirmed.
Kane, J. WE CONCUR: Dawson, Acting P.J. Poochigian, J.