Opinion
G061950
09-19-2024
THE PEOPLE, Plaintiff and Respondent, v. KEVIN MICHAEL COLEMAN, Defendant and Appellant.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County,(Super. Ct. No. 18CF0796) Scott A. Steiner, Judge. Affirmed.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOETHALS, ACTING P. J.
Kevin Michael Coleman was rummaging through an unlocked car early one morning when the car's owner, Adam C., caught him in the act and chased him down the street. Coleman ran to his car; as he drove away, he pointed a loaded gun at Adam and shot him in the chest. A jury convicted Coleman of shooting at another person from a motor vehicle and found true the enhancement alleging he discharged a firearm causing great bodily injury.
Coleman contends the trial court prejudicially erred by failing to provide a lesser included offense jury instruction on negligent discharge of a firearm. We disagree. Regardless of whether the jury accepted the prosecution's or defense's version of events, Coleman's guilt of the charged offense was established by his trial testimony, and no substantial evidence supported the conclusion that Coleman acted with a mens rea of only criminal negligence.
Coleman further contends the trial court erred in refusing to strike the enhancement for discharging a firearm causing great bodily injury. Again, we are not persuaded. Our sister courts have consistently rejected his assertion that statutory changes enacted by Senate Bill No. 81 (2021-2022 Reg. Sess.) (Sen. Bill No. 81) required the court to strike this enhancement. We agree. In declining to strike the enhancement, the court properly exercised its sentencing discretion because (1) the court afforded great weight to the length of the sentence, as required by Sen. Bill No. 81, and (2) it appropriately relied on facts that demonstrate Coleman's future dangerousness. The judgment is therefore affirmed.
STATEMENT OF FACTS
Just before 4:00 a.m. one morning in January 2018, Adam left his home to drive to his job as a university swim coach. As he approached his car, which was parked along the curb, he noticed someone (later identified as Coleman) inside the vehicle.
As Adam approached, Coleman got out of the car and ran down the street. Adam chased after him, yelling he was going to "kick his fucking ass." Coleman shouted, "Don't get me," but Adam continued to give chase.
When Adam reached the end of the street, he briefly lost sight of Coleman and called 911 to report the incident. Just as the call connected, Adam saw car headlights switch on. He approached the car and saw the window was down and a gun was pointed at him. Coleman shot Adam just below the clavicle and drove away. Adam was hospitalized and underwent surgery to treat his injuries.
Police compiled neighbors' video footage of the shooting, and after disseminating the video compilation to the public, they received tips identifying Coleman as a suspect. When they located Coleman and executed a search warrant, police found several items of clothing matching what the shooter wore in the video, a car registered to Coleman that was the same make and model as the getaway car shown in the video, and various guns and ammunition. They also found Coleman's cell phone, which contained multiple photographs of firearms, including a picture taken just hours after the shooting showing Coleman brandishing different guns.
At trial, Coleman testified that he was a heavy drug user who regularly used methamphetamine and sometimes heroin. At the time of the shooting, he lived in motels and was unemployed. He made money by scouring neighborhoods for unlocked cars, removing belongings such as electronics and firearms, and selling them. He was familiar with guns and had spent time at shooting ranges engaging in target practice with both handguns and shotguns.
During his testimony, Coleman admitted that he was the person who burglarized Adam's car and shot him; that he knew the gun used in the shooting was loaded when he pointed it in Adam's direction; and that he had intentionally pulled the trigger to fire the weapon. He recounted that on the morning of the shooting, he chose a neighborhood at random and began looking for unlocked vehicles. After Adam caught Coleman in his car, Adam chased Coleman and yelled, "I'm gonna fucking kill you." When Coleman reached his own parked car, he saw Adam running toward him and thought Adam would hurt him, so he grabbed a loaded pistol from his passenger door pocket with his left (non-dominant) hand, pointed the pistol, and fired a warning shot at Adam, who by that point was about seven feet away. Coleman insisted he did not intend to hurt or kill anyone, and merely meant to scare Adam.
The jury found Coleman not guilty of attempted murder with premeditation and deliberation (Pen. Code, §§ 664, subd. (a), 187, subd. (a); count 1). It found him guilty of shooting at another person from a motor vehicle (§ 26100, subd. (c); count 2); the jury also found true enhancements for inflicting great bodily injury (§ 12022.7, subd. (a)) and discharging a firearm causing great bodily injury (§ 12022.53, subd. (d)). The trial court sentenced Coleman to 30 years to life for the conviction and the firearm enhancement; it stayed punishment on the other enhancement.
All further statutory references are to this code.
DISCUSSION
I.
THE LESSER INCLUDED OFFENSE INSTRUCTION
Coleman claims the trial court prejudicially erred in failing to instruct the jury on negligent discharge of a firearm (§ 246.3, subd. (a)) as a lesser included offense of shooting at another person from a motor vehicle (§ 26100, subd. (c)). We are not persuaded. "California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed." (People v. Birks (1998) 19 Cal.4th 108, 112.) '"[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser."' (People v. Licas (2007) 41 Cal.4th 362, 366.) In deciding whether a lesser included offense instruction is warranted, a court must consider whether "there is substantial evidence that the defendant committed the lesser included offense, which, if accepted by the trier of fact, would exculpate the defendant from guilt of the greater offense." (People v. Cook (2006) 39 Cal.4th 566, 596.)
We review a trial court's decision not to instruct on a lesser included offense de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) An erroneous failure to instruct on a lesser included offense is reviewed under the Watson reasonable probability standard: the matter is reversible only if it is reasonably probable the result would have been more favorable to the defendant absent the error. (People v. Rogers (2006) 39 Cal.4th 826, 867-868; see People v. Watson (1956) 46 Cal.2d 818, 836.)
Coleman contends the trial court was required sua sponte to instruct the jury on negligent discharge of a firearm as a lesser included offense of shooting at another person from a motor vehicle because one cannot discharge a firearm from a motor vehicle at another person without also negligently discharging a firearm, and because the jury might have convicted Coleman of negligent discharge had it been given the option. We disagree.
As an initial matter, Coleman cites no authority for the proposition that the negligent discharge of a firearm (§ 246.3, subd. (a)) is in fact a lesser included offense of shooting at another person from a motor vehicle (§ 26100, subd. (c)). However, we will assume for the sake of this discussion that such is the case. (Cf. People v. Ramirez (2009) 45 Cal.4th 980, 990 [negligent discharge of a firearm (§ 246.3, subd. (a)) is lesser included offense to willfully and maliciously discharging firearm at occupied dwelling or vehicle (§ 246)].)
Section 26100 makes it a felony to "willfully and maliciously discharge[ ] a firearm from a motor vehicle at another person other than an occupant of a motor vehicle." (Id., subd. (c), italics added.) In this context, the word '"[w]illfully"' means intentionally, and the word '"maliciously"' means with "a wish to vex, annoy, or injure another person, or an intent to do a wrongful act." (See § 7, subd. (b)(1) &(4); People v. Rodarte (2014) 223 Cal.App.4th 1158, 1171 (Rodarte).) Section 246.3, by comparison, makes it a public offense to "willfully discharge[ ] a firearm in a grossly negligent manner which could result in injury or death to a person." (Id., subd. (a).)
We therefore must determine whether there was substantial evidence that Coleman's discharge of the firearm was "grossly negligent" so as to support a conviction for negligent discharge, and not "willful[]" or "malicious[]" so as to support a conviction for discharging a firearm from a motor vehicle.
It is undisputed that Coleman-who was no stranger to firearms-drew and pointed a loaded gun in Adam's direction from only seven feet away and then intentionally pulled the trigger, striking Adam in the upper torso near his heart. On this record, regardless of whether the jury believed the prosecution's argument that the evidence supported an inference that Coleman intended to shoot the victim, or the defense's argument that Coleman merely meant to scare him, we find no substantial evidence to support Coleman's claim that he discharged the weapon in a grossly negligent manner. Indeed, Coleman's assertion that he only intended to scare Adam by shooting at him established Coleman's "wish to vex [or] annoy . . . another person" or "intent to do a wrongful act" in violation of section 26100. (See Rodarte, supra, 223 Cal.App.4th at p. 1169.)
Because there was no substantial evidence that Coleman's discharge of the firearm was negligent rather than intentional, the trial court was not required to provide a lesser included instruction. Further, because Coleman's guilt of the charged offense was established by his own testimony, he cannot show prejudice from any alleged instructional error.
Coleman contends the jury's not guilty finding on the attempted murder charge reflects its determination that he lacked a specific intent to kill, and the jury therefore might have convicted Coleman of negligent discharge had it been given the option. We cannot agree. An acquittal on attempted murder does not undermine the jury's conclusion that Coleman acted willfully and maliciously in committing the convicted offense of shooting at another person from a motor vehicle. The trial court therefore was not required to sua sponte instruct the jury on shooting a firearm in a grossly negligent manner.
II.
THE ENHANCEMENT
Coleman next asserts the trial court erred in refusing to strike the gun enhancement. According to Coleman, the court was statutorily required to dismiss the enhancement because it resulted in a sentence exceeding 20 years in prison. Alternatively, he claims that if the court retained discretion to dismiss the enhancement, it abused that discretion by failing to consider Coleman's future, rather than present, dangerousness. We disagree with both assertions.
Section 12022.53, subdivision (d), requires that "[n]otwithstanding any other law, a person who, in the commission of a felony specified in . . . subdivision (c) . . . of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury . . ., shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
Section 1385, subdivision (c)(1), grants the trial court authority to dismiss an enhancement "if it is in the furtherance of justice to do so." As amended by Sen. Bill No. 81, the statute provides in pertinent part that, in exercising such discretion, "the court shall consider and afford great weight to evidence" supporting dismissal where "application of an enhancement could result in a sentence of over 20 years." (§ 1385, subd. (c)(2)(C).) But the statute limits the scope of that consideration: "[p]roof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (§ 1385, subd. (c)(2).) The law defines '"[e]ndanger[ing] public safety"' as creating "a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others." (Ibid.)
We review the trial court's decision on whether to strike a sentencing enhancement under section 1385 for abuse of discretion. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298 (Mendoza).) We review issues of statutory interpretation de novo. (Id. at p. 294.)
Coleman argues that section 1385, subdivision (c)(2)(C), as amended by Sen. Bill No. 81, mandates dismissal of an enhancement that could result in a sentence of more than 20 years. Not so. In interpreting the changes effectuated by Sen. Bill No. 81, our sister courts have repeatedly found a trial court's authority to strike an enhancement under subdivision (c)(2)(C) to be discretionary, not mandatory. (Mendoza, supra, 88 Cal.App.5th p. 297 ["we reject Mendoza's interpretation of section 1385(c)(2)(C) as requiring a court to dismiss every enhancement resulting in a sentence of greater than 20 years"]; People v. Lipscomb (2022) 87 Cal.App.5th 9, 17 [rejecting argument that section 1385, subd. (c)(2)(C), "requires that the enhancement be dismissed whenever its application could result in a sentence longer than 20 years, notwithstanding the court's discretion and even if the court finds that dismissal of the enhancement would endanger public safety"]; accord People v. Walker (2022) 86 Cal.App.5th 386, 396-398.)
We see no reason to reach a different conclusion here. The Legislature has not impliedly repealed the law authorizing imposition of a sentencing enhancement for intentional discharge of a firearm causing great bodily injury in the course of shooting from a motor vehicle. A trial court should dismiss such an enhancement only if it serves the furtherance of justice and if doing so would not pose a danger to public safety.
Because we conclude the trial court retained discretion to strike the enhancement, we must next determine whether the trial court abused its discretion in declining to do so here. We find no abuse of discretion in this record.
The trial court explained it gave "great weight" to the applicable factor identified by Sen. Bill No. 81 (i.e., the length of Coleman's sentence) but nevertheless found dismissal of the enhancement unwarranted because it would endanger public safety. Describing "the facts in this case [as] exceptionally aggravated, horrific," and "absolutely outrageous," the court noted Coleman was "burglarizing cars in the middle of the night in a neighborhood, [got] caught redhanded, [was] chased; and then, in an unthinkable [act] of callous disregard for public safety and for human life, open[ed] fire on his pursuer"; "four years later we can listen to [the victim] gurgling on the 911 tape in his death throes[,] left for dead in the street, while Mr. Coleman just took off." The court also expressed concern that this was not "some one-off" crime, presumably referring to Coleman's admitted practice of burglarizing vehicles and selling stolen firearms. We see nothing arbitrary or irrational about this ruling.
Coleman insists the trial court abused its discretion because it focused on whether he was a danger to public safety at the time of the crime, not on whether he will be a danger at the time of his release. He notes that at the time of the shooting, his drug addiction was the catalyst for many of his actions, but he is now no longer addicted.
Again, we are not persuaded. Although Coleman is correct that "[d]etermining whether a defendant poses an unreasonable risk of danger to society is necessarily a forward-looking inquiry" (People v. Williams (2018) 19 Cal.App.5th 1057, 1063), that does not mean a trial court must disregard a defendant's past behavior in evaluating future risk. In any event, it does not appear the court's decision was based only on Coleman's dangerousness at the time of his convicted offense. Defense counsel expressly informed the court that the risk to public safety inquiry is "forward-looking" and "has to be evaluated after [the imposed] sentence is completed." Coleman has not identified any statements by the court indicating that it did not understand or apply its discretion appropriately. (See People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 ["we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion"].) Coleman's argument fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: DELANEY, J. GOODING, J.