Opinion
F071503
05-02-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID CARL PARK, Defendant and Appellant.
Elizabeth Cambpell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. RF006924A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Elizabeth Cambpell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant David Park was convicted of four counts of assault with a firearm on a peace officer (Pen. Code, § 245, subd. (d)(1)), with firearm enhancements (§ 12022.53, subd. (c), § 12022.5, subd. (a)); and one count of drawing or exhibiting a semiautomatic rifle with the intent to resist or prevent arrest by a peace officer (§ 417.8). He was sentenced to an aggregate term of 32 years eight months in prison.
All further statutory citations are to the Penal Code unless otherwise indicated.
The convictions were based on an incident which began when defendant communicated what appeared to be a suicide threat to a close friend who was also a Ridgecrest police officer. His friend requested that other officers perform a welfare check at the trailer park where defendant lived. When officers tried to contact him at his trailer, defendant shouted profanities, refused to walk out, and fired multiple rounds through the trailer's walls. The officers evacuated the trailer park and called for backup assistance. The Kern County Sheriff's Department Special Weapons and Tactics (SWAT) team responded and surrounded the trailer. Defendant remained in the trailer for nearly six hours. During that time, he fired 35 rounds through the trailer's door and walls, using a semiautomatic handgun and rifle; many of the shots appeared to be fired directly at deputies on the SWAT team, even though they had tried to conceal their positions. Defendant's friend finally convinced him to surrender, but when defendant walked out of the trailer, he resisted the officers who tried to place him in handcuffs.
Defendant was originally charged with nine counts of assault with a firearm on a peace officer; each count specified a particular officer as the victim. As we will explain, the court dismissed one count before the case went to the jury. The jury found defendant guilty of four counts based on the two deputies who initially responded to defendant's trailer to conduct a welfare check and were fired upon; and two members of the SWAT team, who testified that shots were fired directly at their positions. Defendant was found not guilty of the other four assault counts in which the alleged victims were members of the SWAT team who were apparently not directly in the line of fire.
On appeal, defendant contends the court violated his due process right to present a defense when it granted the People's pretrial motion to exclude evidence of his alleged mental illness, defect, or disability as a defense to the multiple assault charges. Defendant also argues the court should have instructed the jury that voluntary intoxication was a defense to the assault charges, and defense counsel was prejudicially ineffective for failing to request such an instruction. Defendant argues the jury was not properly instructed on the elements of the assault charges.
We also address defendant's contention that the matter must be remanded for resentencing based on the recent enactment of Senate Bill 620, which amended the language of the firearm enhancement found true in this case, section 12022.53.
We remand the matter for the court to consider whether to exercise its discretion under the newly-enacted provisions of section 12022.53, subdivision (h), and otherwise affirm.
FACTS
Defendant lived in a small trailer located in space No. 21 in a trailer park at 425 South Richmond Road in Ridgecrest with his daughter, Monica. Defendant previously operated a nutrition shop and also served as a drug and alcohol recognition counselor. At the time of the incident, defendant was a custodian for the Ridgecrest School District.
Ridgecrest Police Officer Edwards Hamilton and his family had known defendant and his own family for 15 years. Hamilton considered defendant to be a like a brother, they saw each other almost every day, and Hamilton's children "adore[d]" defendant.
Hamilton testified defendant knew other police officers in Ridgecrest and had a high regard for them. Hamilton testified that defendant was not a violent person, but he knew defendant was going through some tough times. Hamilton testified defendant had an "app" on his cell phone for a police scanner, and he could hear the police radio traffic. Defendant's statements after the school meeting
On the morning of February 6, 2014, defendant had a meeting scheduled at the Ridgecrest School District office with Superintendent Ernie Bell. Apparently Mr. Bell laid off defendant from his job.
Officer Hamilton was not on duty that day. At some point after the meeting, Hamilton received a telephone call from the school district's resource officer, who reported there was concern about what defendant said at the meeting. Mr. Bell then spoke to Hamilton, and reported that defendant said "that a person who has no job or no money is one of the most dangerous persons in the world."
Officer Hamilton immediately called defendant but he did not answer. Hamilton then called defendant's daughter, who was crying and hysterical. Ms. Bell told Hamilton that defendant's meeting at the school district did not go well, and defendant told her to "pack up her stuff and leave the trailer." Hamilton told Ms. Bell to drive to his house so they could talk about the situation.
Officer Hamilton then received a text message from defendant's cell phone that said: " 'I'm sorry for all the shit and the problems that come along with me. It ends today.' "
Officer Hamilton considered the text message to be a suicide threat. He called the police department's dispatcher and requested a welfare check at defendant's trailer. He told defendant's daughter to go to a relative's house, and he drove to the police department.
INITIAL POLICE CONTACT
Officers Bell and Clinton
Around 9:00 a.m., Ridgecrest Police Officers Ronald Bell and Eric Clinton responded to the trailer park to perform a welfare check on defendant. Clinton had previously met defendant through Officer Hamilton. Clinton called Hamilton as he drove to the trailer park, and Hamilton advised him that defendant might have firearms in the trailer.
Officer Bell directed Officer Clinton to stand to the side of the trailer's door to knock for safety reasons. They were aware that defendant might have a firearm and was possibly despondent. Bell stood next to an adjacent trailer, about 10 feet away from defendant's trailer. Officer Garibay also arrived at the trailer park; he did not announce his presence, and concealed himself behind another trailer.
Officer Clinton walked up to defendant's trailer and stood on the southwest corner; he was on the right side of the trailer's door and not directly in front of it. He knocked on the trailer's wall, identified himself by name, and hoped defendant would recognize his name. Clinton asked defendant to step outside so they could talk. Clinton said they would leave if everything was okay. Clinton did not observe any bullet holes in the trailer's walls.
Officer Bell testified that Officer Clinton knocked and announced, " 'Police Department,' " and said they wanted to talk to defendant.
Officers Bell and Clinton testified defendant responded by yelling profanities. Defendant refused to step outside and sounded agitated. Defendant said, " 'You know, Clinton, I don't believe in suicide, so I guess I'm just going to have to have you guys do it for me.' "
Officer Clinton tried to convince defendant to step outside. Defendant said "something to the effect of, 'You don't think when I hear "520 South Richmond" come over the radio, that I don't know why you guys are here?' " (Italics added.)
Officer Hamilton testified that defendant had a police scanner "app" on his cell phone, and he could hear the police radio traffic. Defendant's statement to Officer Clinton is consistent with Hamilton's testimony. At trial, defendant testified that he had an "app" on his cell phone for a police scanner, and he could hear the Ridgecrest traffic channels. He claimed he was not listening to the scanner before the police arrived, he did not hear his trailer's address broadcast on the police radio, and he made this statement to Officer Clinton as "a bluff."
Officer Bell identified himself and shouted to defendant to come out. Defendant responded with another stream of profanities.
Officer Clinton testified he heard the distinctive sound of "the pump action of a shotgun being cycled." Officer Bell also thought he heard the "cycling of a firearm." Clinton drew his sidearm, retreated to the adjacent trailer, and told Bell what he heard. Bell and Clinton took cover behind the adjacent trailer's engine block for protection. The first gunshots
Officers Bell and Clinton testified that after they heard the cycling sound, they thought they heard a gunshot. Bell saw dirt kick up from the ground at the same time that he heard the gunshot, and believed a shot went through the trailer and hit the ground. Bell and Clinton were standing together, next to the adjacent trailer, when they heard the first gunshot.
Officer Bell used his radio and advised dispatch that they believed a gunshot was fired from the trailer and requested additional units.
Officers Bell and Clinton testified that just after hearing the gunshot, defendant shouted from inside the trailer, " 'That wasn't a gunshot, that was me dropping one of my guns.' "
Officer Bell ordered the backup officers to form a perimeter and evacuate the entire trailer park. The responding officers evacuated the trailer park's residents within 30 minutes. They also evacuated people working at businesses in adjacent areas and at the nearby fairgrounds. Gunshots fired while Officers Bell and Clinton were present
In his postarrest interview with detectives, defendant said he knew there were no "innocent bystanders" in the trailer park because "I had you on my phone and I heard ([Officer] Bell) say, 'Get the road clean. Get everybody out of here." This statement is again consistent with defendant listening to the radio traffic on his cellphone "app." At trial, however, defendant testified he heard Bell order the evacuation but denied that he was listening to the radio traffic through the cell phone "app."
Defendant was charged with multiple counts of assault with a firearm on a peace officer, and each count identified a specific officer as the victim. In counts II and III, he was charged and convicted of assault with a firearm on Officers Bell and Clinton.
Officer Bell testified that throughout the evacuation process, he kept trying to talk to defendant, but defendant shouted back at him and "continued to verbally abuse us as officers, and would not engage me in any kind of conversation at all."
Officer Clinton testified that he next heard three separate sets of gunshots. The first set of gunshots was fired about three to five minutes after defendant shouted that he dropped his gun. Clinton testified that about three shots were fired, and he thought they went through the trailer's floor. Clinton testified the dirt under defendant's trailer was "basically blowing up from the rounds going into the ground."
Officer Clinton testified a couple of minutes later, a second volley of shots was fired from defendant's trailer. As Clinton heard the gunshots, he simultaneously saw "corresponding holes" appear in defendant's trailer, through the wall to the right of the trailer's door, where Clinton had previously been standing. Clinton was not sure how many shots were fired during the second volley. He thought there were a few seconds between each shot.
Officer Clinton testified the third set of shots was fired through the wall on the trailer's south side. Clinton heard four to five shots, and simultaneously saw holes opening through the trailer's wall. The bullets were fired toward the vicinity of propane tanks located in the trailer park.
Officer Bell also heard the numerous rounds, and testified he saw the gunshots penetrate the south and west sides of defendant's trailer.
After the second volley of shots from defendant's trailer, Officers Bell and Clinton were concerned the bullets would ignite the propane tanks so they further retreated from defendant's trailer. Officer Lilly of the California Highway Patrol had arrived at the trailer park. Bell and Clinton retreated behind his patrol vehicle since it had armored doors. After the third volley of shots, the officers moved further away and took cover behind a blue Suburban. The Ridgecrest police officers wait for the SWAT Team
Ridgecrest Police Officer Nathaniel Lloyd and several other officers had responded to the trailer park. Lloyd decided to call the SWAT team from the Kern County Sheriff's Department to deal with the barricaded and armed suspect.
Officers Bell and Clinton waited behind the blue Suburban for the SWAT team to arrive. Officer Clinton testified he heard another 15 shots fired from defendant's trailer while they waited for the SWAT team. Bell believed these shots were fired out of the south side of defendant's trailer, toward the propane tanks.
THE SWAT TEAM ARRIVES
The SWAT rapid deployment team from the Kern County Sheriff's Department responded to the police department's request for assistance. Deputy Ryan Sorrow, a member of the team, testified they traveled by helicopter from their base to the trailer park. It took 90 minutes to reach the trailer park. Sorrow testified the team's response was slower than expected because the helicopter pilot encountered a large amount of cloud cover on the route; the pilot had to circle a few times before it was safe to continue the trip. The helicopter landed in a field about 200 yards from the trailer park. It made a lot of noise and kicked up dust, so that it would have been apparent that it had landed in the area.
During defendant's postarrest interview, he said that he knew it would take the SWAT team 90 minutes to arrive; this statement was again consistent with Officer Hamliton's belief that defendant had a police scanner "app" on his cell phone and could have heard the radio traffic about the SWAT team's expected arrival, and that he knew the SWAT team was joining the other officers outside his trailer.
The SWAT team members were Sergeant William Starr, Senior Deputies Michael Booker and Jose Perez, and Deputies Sorrow, Abel Hernandez, and Logan August, all from the Kern County Sheriff's Department. The team members deployed around defendant's trailer, and the Ridgecrest police officers withdrew to the perimeter area.
The members of the SWAT team did not announce their presence at the scene, and they were not in communication with defendant. The deputies attempted to conceal their positions around the trailer. The team surrounded the trailer for two hours before defendant was taken into custody; they did not fire any shots during that time. Deputies August and Sorrow
Defendant was charged in counts VIII and IX with assault with a firearm on, respectively, Deputies August and Sorrow; he was found not guilty of these charges.
Deputies Logan August and Ryan Sorrow relieved the officers behind the blue Suburban. They hunched down behind the vehicle for cover. Sorrow testified that there were "three separate rapid sets of fire" from defendant's trailer. The first set of shots occurred a few minutes after Sorrow and August relieved Officers Bell and Clinton behind the blue Suburban. About six rounds were fired from defendant's trailer. Sorrow and August immediately went to prone positions on the ground and took cover behind the Suburban's engine block.
Deputy Sorrow testified that about 10 minutes later, there was another set of shots, and three to seven rounds were fired from defendant's trailer. A few minutes after that, Sorrow heard a third burst of gunfire. Deputies August and Sorrow heard the sound of the bullets hitting the dirt and other trailers. Sorrow testified that none of the bullets hit the blue Suburban or their immediate vicinity. Senior Deputy Booker
Defendant was charged and convicted of count V, assault with a firearm on Deputy Booker.
Senior Deputy Booker was the SWAT team's sniper. He wore the same uniform as the other team members, a green and tan "bush color" camouflage uniform. Booker took a position in the two-foot space under a trailer that directly faced defendant's trailer. Booker intended to stay concealed and monitor the situation for the rest of the team.
Once he was in position, Deputy Booker realized his view of defendant's trailer was obstructed by a "penguin" lawn ornament that was in front of the trailer where Booker was concealed. Booker crawled forward and slowly moved the object for a clear view.
Deputy Booker testified that as he moved the lawn ornament, he heard gunshots and saw bullets hit the ground. The dirt "explode[d]" five to 10 feet in front of him. Booker believed defendant had seen him based on where the bullets hit the dirt. Booker tried to make himself "very small" to avoid being hit. Once the gunshots stopped, Booker crawled backwards under the trailer where he had been positioned to get better cover. Booker hid behind that trailer's large tire, and he heard additional volleys of gunfire.
Deputy Booker testified the windows on defendant's trailer were covered with blinds. There was a window in the trailer's door, but it was frosted. Booker saw a person's silhouette walk in front of the frosted window three times - right to left, then left to right, then right to left again - as if the person was crossing to opposite ends of the trailer.
Deputy Booker advised his SWAT team members about the gunshots that had been fired at his position. His team members reported that shots had been fired at their different locations around defendant's trailer. Booker believed the gunfire was not random, and defendant was able to see them, but they could not see him. Booker decided that he would try to fire at the silhouette when the person walked by the frosted window, but he was unable to do so and did not fire his weapon. Sergeant Starr
Defendant was charged and convicted in count IV of assault with a firearm on Sergeant Starr.
Sergeant William Starr was the leader of the SWAT team. He positioned himself next to a Sportsmaster trailer near defendant's trailer. Deputies Perez and Hernandez were positioned behind Starr. Starr and the other two deputies were in the prone position on the ground, and intended to stay concealed. Starr had a clear view of defendant's trailer but could not see him through the blocked windows. Starr noticed there were bullet holes on both sides of defendant's trailer.
About 30 minutes after getting into position, Sergeant Starr heard two separate volleys of gunfire, of four to six rounds each. During the first set of shots, he saw dirt flying in the area directly in front of him. A few minutes later, there was another set of shots and Starr heard "the hisses and pops of the bullets." Based on his prior experience, Starr testified that his ability to hear bullets "pop" meant the bullets were "incredibly close" to him.
Sergeant Starr testified he also heard something that sounded like pressure being released from a tire, and thought a bullet might have hit a tire on the trailer where he was hiding.
After these shots were fired, Sergeant Starr thought he had been spotted and was exposed, so he backed up. Senior Deputy Perez
Defendant was charged in count VII with assault with a firearm on Deputy Perez; he was found not guilty.
Deputy Jose Perez was positioned immediately behind Sergeant Starr, and in front of Deputy Hernandez. The three deputies were prone on the ground, and behind the Sportsmaster trailer, about 20 yards from defendant's trailer.
Deputy Perez testified he saw bullet holes in defendant's trailer when he initially took his position. After taking his position, Perez heard gunshots from defendant's trailer. As the shots were fired, Perez "actually saw bullet holes being made" in defendant's trailer when the rounds went through the metal wall, and "I could see the rounds were hitting in front of us, hitting the dirt." Perez also heard rounds hit the nearby trailers. Perez backed away. Deputy Abel Hernandez
Defendant was charged in count VI with assault with a firearm on Deputy Hernandez; he was found not guilty.
Deputy Hernandez was located behind Starr and Perez by the Sportsmaster trailer. Hernandez testified that about 40 minutes after the SWAT team arrived, he heard gunshots and saw dirt "from the ground right in front of us come off the ground as if something was impacting it." He also saw bullet holes in a "Club Wagon" van that was next to their location. He heard a large hissing sound and thought the bullets might have hit the propane tanks.
DEFENDANT'S PREARREST STATEMENTS
In the meantime, Officer Hamilton was at the police department and learned that shots had been fired from defendant's trailer.
About 15 minutes after learning about the gunshots, Officer Hamilton finally reached defendant by telephone. Defendant told Hamilton that the meeting with Mr. Bell at the school district did not go well. Defendant also said that "he could see the officers on scene" through his trailer's window. Defendant said the officers were moving toward the trailer. He told Hamilton to get the officers to move back because "[h]e didn't want to have to shoot any officers because he liked us, but if he had to, he would." Defendant then hung up.
On direct examination, Officer Hamilton testified defendant made the statements about not wanting to shoot the officers during their second telephone conversation. On cross-examination, Hamilton clarified defendant made these statements during the first telephone call.
Officer Hamilton tried to call back, but defendant did not answer. Instead, defendant called Hamilton. During this second conversation, defendant and Hamilton argued with each other. Defendant talked about the problems he was having, and how he helped other people with their problems when he was a counselor. Defendant asked Hamilton why he could not help him out now. Defendant hung up.
Defendant later called Officer Hamilton, and they had a third conversation. Defendant said that "after he finished the alcohol that he had left, he was gonna [sic] put a gun in his mouth and end it." Defendant hung up.
Shortly after defendant hung up, an officer reported that a single shot had been fired from the trailer. Officer Hamilton thought defendant had killed himself. Hamilton tried to call defendant, but there was no answer for 45 minutes. Officer Hamilton convinces defendant to give up
Officer Hamilton drove to the command post on South Richmond Road. The command post was out of range of defendant's trailer, and Hamilton could not see it. The negotiation team asked Hamilton to convince defendant to peacefully surrender without hurting anyone.
Officer Hamilton again reached defendant by telephone, used the negotiation team's suggested strategies, and talked with defendant about his family. He asked defendant to think about his daughter, and that he should see her graduate college, get married, and start her own family.
After about one hour, defendant asked Officer Hamilton if he was right there at his trailer. Hamilton lied and said he was. Defendant said "all he wanted was [for Hamilton] to be the one to place the handcuffs on him and transport him to jail." Hamilton said he would do that. Defendant asked Hamilton if he would " 'swear on your family's life that you will do that,' " and Hamilton said yes.
Officer Hamilton testified he lied about his whereabouts because it would not have been safe for him to approach the trailer and place defendant in custody given the situation. Defendant walks out of the trailer
Deputy Hernandez, still in position by the adjacent trailer, testified that defendant suddenly emerged from the trailer, briefly stayed outside, and then went back in the trailer. Shortly after that, defendant walked out of the trailer a second time. Deputy Penny ordered defendant to keep his hands up and walk toward the officers. Defendant complied and approached a law enforcement vehicle.
Deputy Penny ordered defendant to get on his knees. Defendant looked at him and said no. Deputy Romo grabbed defendant's right hand and tried to place it behind his back to gain control. Defendant resisted and stiffened his arm.
Deputies Hernandez and Silva grabbed defendant's left arm. Defendant resisted, and the deputies managed to get him face down on the ground. Defendant tucked his hands against his stomach. The deputies ordered him to move his hands so they could place him in custody. They were concerned he was armed because they had not yet searched him. Defendant failed to follow their orders and struggled with the deputies for a few more minutes. The deputies finally obtained control of defendant's hands from under his stomach, and handcuffed his wrists behind his back.
The deputies searched defendant and did not find any weapons on him. The deputies turned him over to officers from the Ridgecrest Police Department.
The incident ended about six hours after Officers Bell and Clinton had arrived for the welfare check.
THE INVESTIGATION
The scene
After defendant was taken into custody, the SWAT team deployed a robot into his trailer with a camera to ensure that it was safe to enter.
Deputy Booker testified he went into defendant's trailer and observed numerous bullet holes through the door and walls. He looked through the holes in the door, and could see the location where he had been hiding. He was also able to see the separate locations where other SWAT team members had been positioned.
There were bullet strikes and bullet fragments found in adjacent trailers, RVs, and vehicles in the trailer park, including the blue Suburban where Officers Bell and Clinton had taken cover. A bullet strike was found on a business building that was a quarter mile from the trailer park. There were ricochet strikes in the asphalt in front of the trailer with the penguin lawn ornament, where Deputy Booker had been positioned. The weapons and casings
The officers found five loaded firearms inside defendant's trailer: a SKS-type semiautomatic rifle that fired 7.62 x .39-millimeter rounds; a 12-gauge Stoeger pump-action shotgun; a .40-caliber Glock Model 27 handgun; a .45-caliber Para-Ordnance semiautomatic pistol; and a Winchester bolt-action .30/.06 rifle, the only weapon that did not appear to have been fired. All the weapons were found in close proximity to each other.
There were 22 exit holes through the wall on the "long-side" of defendant's trailer, and 13 exit holes through the wall on the "front side." There were no exit holes through the trailer's ceiling or floor.
There were a total of 35 spent cartridges of various calibers found inside defendant's trailer: 16 spent 7.62 x 39-millimeter casings; 12 spent .40-caliber Smith and Wesson casings, with one in the kitchen, one in the living area, and 10 on the floor at the rear of the trailer; and seven spent "45 auto" casings, with four on the floor in the rear of the trailer.
There were still 366 live rounds in the trailer for both rifles and handguns.
A 1.75-liter bottle of Bacardi was found in the trailer; it was roughly one-third full of alcohol.
DEFENDANT'S POSTARREST INTERVIEW
On the same day that defendant was arrested, Ridgecrest Detectives Kenneth Merzlak and Aaron Tucker interviewed defendant at the police department and advised him of the Miranda warnings. Defendant agreed to answer questions. The interview was videotaped, and it was shown to the jury.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant said he was in his trailer and talked to "Eddie," referring to Officer Hamilton, on the telephone. Hamilton said, " 'David, you know what I have to do.' " Defendant said he told Hamilton that he knew what he had to do, but that " 'I gotta do what I gotta do' " because " 'I got no life.' " Defendant told Hamilton that he could not pay the rent for his trailer space, he did not have a job, and he "ran" his daughter from the trailer.
Defendant said Officer Hamilton knew that he had sent his daughter away. Hamilton asked to come to his trailer so they could talk. Defendant told Hamilton that if he came over, they were going to fight, and defendant would hurt him bad since defendant had a black belt in Aikido and had been a cage fighter for three years.
At trial, defendant testified that he had never been a cage fighter and did not have a black belt in Aikido.
Defendant said he hung up on Officer Hamilton, and "[n]ext thing I know" was that Officer Clinton was beating on his trailer door. Defendant said Clinton identified himself. Defendant said that he loved Clinton, but Clinton treated him "like a piece of shit out there" because he accused defendant of shooting at him. Defendant said he told Clinton that he did not shoot at him because he was " 'a marksman.' "
Defendant's version of events is inconsistent with the trial evidence. Officer Hamilton testified that he asked the dispatcher to send officers on the welfare check, and then he left his house for the police department. Officer Clinton testified he arrived to conduct the welfare check, knocked on the trailer, briefly spoke to defendant, and then the first shots were fired from the trailer. Hamilton testified that he kept calling defendant, but he did not answer. After Hamilton arrived at the police department, he learned that shots had been fired from the trailer, and defendant finally answered his phone.
Defendant said Officer Clinton asked him to come outside so they could talk. Defendant refused and asked Clinton to " '[j]ust let me do what I gotta do.' "
Defendant told the detectives that he just wanted to die "so bad." The detectives said they did not want him to die, and reminded him that he had helped many people as a counselor. Defendant said he stayed up the previous night, his daughter asked what was wrong, and he had prayed to " 'make this work.' " Defendant said he "would have done it" two days earlier, but his daughter begged him not to.
As the interview continued, defendant begged Detective Tucker to get him some help. Tucker said they would, and asked defendant about what happened when Officer Clinton knocked on the trailer's door. Defendant said he talked to Clinton and Officer Bell through the door. He refused to go outside, and he was drinking as much Bacardi as he could. "I was gonna [sic] put my Glock 40 in my mouth." Defendant said that Bell thought defendant was stupid, because Bell claimed he could not hear defendant through the door and asked defendant to open it.
Detective Tucker asked defendant about his "mindset" when he was in the trailer. Defendant said:
"I'm gonna stick my gun in [my] mouth as soon as I get drunk enough to get enough guts. I was gonna stick my gun in my mouth and blow the back of my head off."
Detective Tucker asked about his weapons. Defendant said he had an "SKS 45" and "a 40." Tucker said "there were several times ... when officers were on the scene that you started shooting inside your trailer." Defendant said he was shooting "[a]nywhere. I didn't care, dude." Defendant said he fired at the door, floor, and walls of his trailer.
Defendant said he fired shots through the trailer's floor. Several officers thought shots were fired through the trailer's floor based on how the dirt exploded. However, the criminalist determined that shots were not fired through the floor itself, but through lower portions of the trailer's walls.
Detective Tucker asked defendant why he fired. Defendant said: "To stay away from me. Let me do what I needed to do."
Defendant was asked about his telephone conversations with Officer Hamilton. Defendant said Hamilton disappointed him because he went "from my brother to a cop" and did not show any empathy. Detective Tucker said Hamilton cared about him. Defendant said Hamilton did not care, and he was supposed to be there while he was being questioned.
Defendant said he was going to kill himself. Detective Tucker said they would get him the help he needed. Defendant told Tucker "man to man" that he was "gonna do it." Tucker reminded defendant about his family.
Detective Tucker returned to discussion of the incident and asked defendant about where he was shooting.
"DET. TUCKER: ... When .. you were shooting just anywhere and everything and it was ...
"[DEFENDANT]: I didn't care, dude.
"DET. TUCKER: You didn't care? Did you worry about what if you shot one of us or an innocent bystander?
"[DEFENDANT]: I knew there was no innocent bystanders because I had you on my phone and I heard (Bell) say, 'Get the road clean. Get everybody out of here.' And as soon as I heard that I waited and I heard this, 'You gotta leave. You gotta leave.' And that - I hadn't shot one shot before I heard that. And I looked out the bathroom window and I seen you guys over there and I shot over there ...
"DET. TUCKER: So you shot towards us...
"[DEFENDANT]: No, I did not.
"DET. TUCKER: ... or - okay.
"[DEFENDANT]: I shoot marksmanship." (Italics added.)
Defendant said the officers were "in front of my trailer," he was shooting "at the side of my trailer," and he was "intentionally missing." Defendant bragged that he was an expert shot, his SKS could have gone "right through your vest," and he was missing on purpose. Defendant said Officer Hamilton was on the telephone and asked why he was shooting, and defendant assured Hamilton that he was missing on purpose.
Defendant said he told Officer Hamilton to get the officers away from his trailer because "[t]hey were creeping up on top of my trailer." Defendant thought the police were trying to remove the propane tanks. Defendant said he heard Hamilton say "on the radio, 'Back off. Back off.' And then I would shoot the opposite direction." Defendant swore "on my mom's grave" that he never shot at an officer, but "[i]f I shot at an officer I would have shot him."
As we have already noted, defendant's post-arrest statements about hearing Officers Hamilton and Bell "on the radio" are consistent with Hamilton's testimony that defendant had a cellphone "app" for a police scanner. At trial, defendant admitted he could hear the Ridgecrest police traffic through the scanner "app" but claimed he was not listening at the time.
Detective Tucker asked defendant about his statements to Officer Hamilton regarding the SWAT team:
"DET. TUCKER: Now ... during your conversation you had made a statement along the lines of 'Get this SWAT guy out of here or I'm gonna shot him with my AK.'...
"[DEFENDANT]: No, I said I know ... no. That's not what I ....
"DET. TUCKER: What ... was it that you said?
"[DEFENDANT]: I said—I said, 'I know it takes about an hour and a half to get ... SWAT here.' And I said, 'I have the same weapon they have.'
"DET. TUCKER: Okay.
"[DEFENDANT]: And [Officer Hamilton] said, 'I know you do.' I said, 'I can shoot right through their vests.' I said [to Hamilton], 'I just want to do what I need to do....' " (Italics added.)
At trial, Deputy Sorrow testified it took 90 minutes for the SWAT team to arrive, which was slower than expected because the helicopter pilot encounter cloudy conditions during the trip. Defendant's postarrest statements raise the inference that he might have heard radio traffic on his cell phone "app," where the Ridgecrest officers discussed the expected arrival time of the SWAT team.
Defendant told Officer Hamilton he would not shoot at any officer, except for Officer Ballestero because "he got in my face about 100 times already" on previous occasions. Defendant told Hamilton he would shoot Ballestero in the face " '[i]f he gets into my face.' "
Defendant was charged in count I with assault with a firearm on Ridgecrest Police Officer Cory Ballestero. Ballestero did not testify at trial. Officers Bell and Clinton testified that Ballestero responded to the trailer park with other backup officers, and also took cover behind the blue Suburban while they waited for the SWAT team to arrive. There was no direct evidence that Ballestero identified himself to defendant or that shots were fired at his location. After the prosecution rested, the court granted defendant's motion to dismiss count I.
Defendant told Officer Hamilton that aside from Officer Ballestero, he would not hurt any officer, and Hamilton said he knew that. Defendant said he told Hamilton to " '[j]ust get them away from my trailer. Let me get enough alcohol in me to do what I need to do.' "
Detective Tucker asked defendant if he knew how many times he fired inside the trailer. Defendant said it was probably 10 or 12 times. He never fired his .30-.06 rifle. He did not think he fired his "AK-47" because he knew the shots would travel "for a long ways and it'll hurt people bad. It was all handguns."
The officers found a loaded SKS-type semiautomatic rifle in the trailer that fired 7.62 x 39-millimeter rounds; they also found 16 spent 7.62 x 39-millimeter casings in the trailer. A loaded Winchester bolt-action .30/.06 rifle was in the trailer, but it did not appear to have been fired. The officers did not find an "AK-47" in defendant's trailer. At trial, defendant testified that he told several falsehoods during his postarrest interview, and that he never owned an AK-47.
Detective Tucker again asked defendant about the SWAT team. Defendant replied: "I didn't know they were there until I come [sic] out of the trailer."
Defendant's statement that he did not know the SWAT team was present contradicts something he said a few minutes earlier in the interview - that he told Officer Hamilton during the incident that he knew it would take the SWAT team 90 minutes to reach his location.
Detective Tucker said he was glad defendant peacefully came out of the trailer. Defendant said he walked out because Officer Hamilton lied that he was standing there and would take him into custody. Defendant also said that he did not get down on his knees as ordered because he had "three pins and two bars in each knee."
Defendant complained that when he tried to surrender, one officer punched him in the face and another office tried to do a "foot sweep." "I'm a black belt in Aikido. That's not gonna happen, bro. I went down on purpose." Defendant said that he was punched two more times when he was on the ground. The officers cursed him and asked why he did not shoot himself "and saved everybody the trouble." Defendant said he knew the name of the officer who punched him but did not disclose it.
Detective Tucker again asked defendant about his conduct:
"DET. TUCKER: Do you feel that your actions today put other people and officers in jeopardy?
"[DEFENDANT]: Absolutely. Absolutely.
"DET. TUCKER: ... or danger for death or ...
"[DEFENDANT]: Absolutely but I did not intentionally shoot in any officer's direction...
"DET. TUCKER: Okay.
"[DEFENDANT]: ... on purpose." (Italics added.)
Defendant added: "... I shoot marksmanship." Defendant said he had taken a marksmanship class and always hit the target. "And I shoot much better with a rifle than I do with a pistol. If I wanted to shoot somebody I would have shot them."
"DET. TUCKER: I'm glad you didn't.
"[DEFENDANT]: I didn't want to. And I kept telling [Officer Hamilton], 'I don't want to hurt you guys.' I said, 'I think you guys need a raise....' "
Defendant said that at one point, he looked out the bathroom window of his trailer, and he was "looking at a cop just like I'm looking at you. And I could have shot him right between the eyes."
Defendant said he had never had such a bad time in his life. Detective Tucker said he should have asked for help.
"DET. TUCKER: ... You put a lot of people in harms [sic] way, not only yourself, but all the officers on the scene.
"[DEFENDANT]: I know. And I feel really bad. I really do." (Italics added.)
Defendant asked the detectives what he was being booked for. Detective Tucker said it would be for shooting at an inhabited dwelling, criminal threats, and assault with a deadly weapon. Defendant said he did not have a record. Tucker explained his hands were tied because defendant "broke some laws today." Defendant replied: "You want to know what law I think I broke," and said that he did not get a chance "to do what I wanted to do." Defendant claimed a SWAT officer dislocated his shoulder when he was handcuffed. The detectives said they would take him to the hospital to check it out.
Defendant repeatedly said that a SWAT officer cursed him, punched him in the face, and said he should have killed himself. Defendant had previously said he knew the name of the officer who allegedly punched him, but now he asked the detectives to find out who did it. Defendant added that he used to "fight in a cage ... so getting punched in the face ain't nothing." Detective Merzlack replied: "I am not defending anyone here but you can only assume everybody was amped up because we had bullets flying at us."
Defendant got upset, said he just wanted to die, and he needed mental health treatment. An officer replied that defendant's daughter cared about him. Defendant replied his daughter was set for life if he died, or "[i]f I come out shooting and you shot me, that's not suicide." Detective Merzlack said that he was pretty sure that life insurance was not paid out for either situation. Defendant said he made sure that it would.
DEFENDANT'S TRIAL TESTIMONY
At trial, defendant testified that he had lived in the trailer with his daughter for about two weeks before the incident. He had been a drug and alcohol counselor, and had been "clean" for 20 years. He had also owned a health and nutrition stop. He knew and respected several police officers.
Several months before the incident, defendant and his wife split up, he had serious health problems, his mother died, and he was not employed. Defendant thought about killing himself. He legally owned five guns and had ammunition in the trailer.
On the morning of the incident, defendant told his daughter that he was going to talk to Mr. Bell about getting a job. He also told his daughter to move out of the trailer and they argued. He packed up her belongings and threw the bag outside. Defendant asked her to leave because he "didn't want her to see it." After she left, defendant loaded his guns to get ready to kill himself, and he drank Bacardi for the first time in many years.
Defendant explained that he had flipped up the tables and beds in the trailer so that they blocked the windows. He closed the blinds, one window was frosted, and he could not see out. Defendant said he planned to send a text message to apologize to everyone before he became too drunk, and then he would keep drinking and kill himself.
Defendant thought the first officers appeared at his trailer about 30 minutes after his daughter left. He was drinking and heard someone knock, and Officer Clinton identified himself. Clinton asked him to some out of the trailer so they could check on him. Defendant refused and told Clinton to go away. They talked for 10 to 15 minutes, and defendant used profanity and told Clinton to leave. Defendant told Clinton that he needed "to do what I gotta do," and repeatedly told him to go away.
Defendant testified that he also told Officer Clinton that "I gotta get them to kill me."
"Because I said if I don't get drunk enough to do this - I gotta do this. Then you're gonna have to do it for me. And he told me, 'I'm not gonna kill you. You're a friend of mine.' "
Defendant testified that he could tell where Officer Clinton was standing based on the sound of his voice. Defendant also admitted that he discharged his .40-caliber Glock handgun while he talked to Clinton, but he only fired once into the trailer's floor, at a slight angle. Defendant testified he fired that round because he wanted Clinton to leave, and he did not intend to shoot Clinton.
The criminalist determined that no rounds were fired through the trailer's floor.
Defendant testified that just after he fired that first shot, he dropped his gun on the floor and it made a loud noise. Defendant called out to Officer Clinton that he had dropped the gun and did not shoot at him. Clinton cursed, and then it was quiet for 10 to 15 minutes, and defendant started to drink again.
Defendant testified that Officer Hamilton called his cell phone, and he ignored the call. Hamilton called again and defendant answered. Defendant was upset because Hamilton was acting like an officer and not his longtime friend. They had a short conversation. Hamilton called back, asked defendant what he was doing, and said defendant needed to stop.
Defendant testified he heard someone call his name and tell him to come out of the trailer. He knew which direction the voice came from, but he did not look out the window, and he did not know who had called out his name. Defendant testified he was too drunk to recognize anyone's voice at that point. Defendant picked up his "long gun," the "SKS," that was already loaded with seven rounds. He walked back and forth in the trailer and fired all seven rounds from the "SKS" through the walls. Defendant testified that he did not fire in the direction of the voice that asked him to come out, and fired in the opposite direction, through the west side of the trailer. He fired these rounds between his conversations with Officer Hamilton.
"Q. ...Did you ... you knew there were officers outside, at least one; correct?Defendant testified he did not know how many officers were present or their locations.
"A. I figured there would be probably more than one by then; yes." (Italics added.)
After he fired all the rounds from the SKS, defendant tried to reload but he was too drunk and cut his fingers. He sat on the floor and got mad.
"... I wasn't getting drunk fast enough to do what I needed to do because I still knew that the cops were out there somewhere and I know that they just don't go away in situations. They just don't pick up their stuff and go, oh, well, we couldn't get that guy. So ... I decided to sit down on the floor and really consume about as much alcohol as quick as I could." (Italics added.)
Defendant testified he was "in a really, really, really dark spot" and did not see a way out, and killing himself "was the only option I had." However, he was having trouble actually pulling the trigger and needed to get drunker.
Defendant testified he picked up his .45-caliber handgun that was already loaded with seven rounds in the clip. Defendant was facing south, but he fired all the rounds straight down into the bathtub. He did not know why he did that, except to "let people know that I was serious and I really wanted to do this and they needed to go away."
Defendant testified he was agitated, irate, and sobbing. He never looked through any of the bullet holes to see where the officers were, and did not know how many officers were outside.
"Q. Did you have any idea whether there were people in the trailer park at that time?
"A. I heard Officer Bell say, 'We need to empty the trailer park.' And I responded with, 'Yes. Get these people out of here. Nobody needs to get hurt.'
"Q. Okay. When was that? When did you hear Officer Bell say that?
"A. That was quite a while into the situation. [¶] ...Maybe an hour into it." (Italics added.)
After defendant fired into the bathtub, he "ran out of guns that were loaded." He dumped his ammunition box on the floor and again tried to reload all of his weapons.
Defendant got more telephone calls and answered some of them. Officer Hamilton again tried to convince him to surrender. They argued about the situation. Hamilton did not tell him how many officers were there. He assumed Hamilton was at the police station.
After he reloaded, defendant was still sitting on the floor. He fired a couple of rounds from his .45-caliber handgun "straight down into the floor" and "through the lower part of the wall" on the west side of the trailer. He did not think anyone was right outside the trailer. He knew there were other trailers and mobile homes nearby, and he did not know if anyone lived there at the time.
After he fired the .45-caliber handgun, he talked with Officer Hamilton and they argued again. Defendant screamed at Hamilton to " 'just leave me alone and let me do what I gotta do....' " Defendant threw a box of bullets on the floor and the ammunition went everywhere. He kept drinking to get the courage to kill himself.
Defendant testified he fired three rounds from his .40-caliber Glock handgun through the trailer's west wall. He did not think anyone was on that side, and he would not have fired through the west wall if he thought someone was there.
Defendant talked to both Officer Hamilton and his own brother on the telephone during this time. Defendant told Hamilton to tell the officers to get back. "And I heard him say, 'Get back. He told me to tell you to get back.' Then I knew he was ... right there ... with them," and knew that Hamilton was communicating with other officers. He thought Hamilton was in the trailer park. Defendant wanted the officers to move back because "I was out of control of everything in my entire life. I was just trying to be in control of one thing."
Defendant testified he decided to give up when Officer Hamilton talked about his family, particularly his daughter. Defendant told Hamilton he was going to leave the trailer. Hamilton said he could not just walk out because '[y]ou got these guys turned up.' " Defendant asked Hamilton to arrest him and take him to the police department, and Hamilton promised that he would. Hamilton told defendant to open the trailer door, raise his hands, and walk out.
Defendant testified he followed Officer Hamilton's instructions and walked out of the trailer. He complied with the orders given by officers outside the trailer. When he was told to get on his knees, he told the officers that he was not able to because he had pins in his knees. The officers tackled him to the ground and "beat the hell out of me."
Defendant thought the entire incident lasted 45 minutes. He was shocked when he later learned that it was nearly six hours.
Cross-examination
On direct examination, defendant did not testify about the meeting at the school district with Mr. Bell that occurred shortly before the incident began at the trailer park.
On cross-examination, the prosecutor asked defendant about that meeting. Defendant testified that he told Mr. Bell "that the most dangerous man in the world is a man with no family, no job." He had not started drinking yet, and he was trying to "make light" that he had lost his job. Mr. Bell asked what he meant, and defendant realized he had not lightened the mood. Defendant admitted that Mr. Bell offered to help him find a different job and work on his resume.
Defendant admitted that he already knew Officer Clinton, Clinton identified himself as a police officer when he initially knocked on the trailer, and he knew Clinton was an officer.
Defendant testified that after his initial conversation with Officer Clinton through the trailer wall, he heard Officer Bell give an evacuation order for the trailer park. Defendant testified he did not have a conversation with Bell, but he replied to Bell's orders that he should get people out of there. On further questioning, however, defendant admitted that Bell also ordered to him come out of the trailer. He did not know Bell and did not want to talk to him.
"Q. At what point did you learn his name?
"A. Um, I think when he said, 'Come outside.' And I said, 'Who is this?' And he said, 'It's Officer Bell.' And I said, 'I don't know an Officer Bell.' "
Defendant testified he was drinking a lot. He knew the man said he was "Officer Bell," but he was not sure "the word 'officer' sunk in." Defendant also admitted that he told the detectives during the postarrest interview that Officer Bell asked him to open the door because he could not hear him, and defendant said Bell thought he was stupid and would do so.
Also on cross-examination, defendant admitted he had an "app" on his cell phone for a police scanner. "[I]t didn't have any special things like ... picking up special channels or hidden channels or anything ... it was just really basic to hear traffic." Defendant could hear the Ridgecrest traffic channels but not the sheriff's department.
Defendant testified he was not listening to the scanner before the police arrived, and he did not hear his trailer's address broadcast on the police radio. He made this statement to Officer Clinton as "a bluff," but defendant testified he heard a code about something. He also denied that he heard a dispatch over the scanner where Bell reported that shots were fired from his trailer.
Defendant admitted that he told the detectives he had checked to ensure his daughter would receive his life insurance benefits if he killed himself or an officer shot him. However, defendant testified that statement was not true because he did not have a life insurance policy, and he just said that so it would not look like he was "a piece of trash" and "bailing" on his family.
In response to further questions, defendant testified that after he was arrested, he talked on the telephone a lot with his brother and daughters, and he told his family that he did not remember anything about the incident. Defendant testified that there was a "point in time" that he could not remember anything, it "took a while," and there was "still some foggy stuff."
Also during cross-examination, defendant tried to say that he had been sent to Patton State Hospital, and "they started me on some psych meds." The court sustained the prosecutor's objection and ordered that statement stricken.
Defendant admitted that he told the detectives that he thought the police were trying to remove the propane tanks from his trailer. However, this statement was another "bluff," and he was not telling the truth.
"I was not telling the truth [during the postarrest interview] because ... it's important to me for law enforcement to look at me in the same kind of eyes as they look at each other. So when I said it, I wanted them to look at me like, you know, he's a pretty smart guy."
Defendant testified he did not tell the truth when he told the detectives that he had been a cage fighter; he had actually been a "corner man," and never been a professional fighter. Defendant testified he was too drunk to know what else he told he detectives.
Defendant testified he was too drunk during the postarrest interview to know how many rounds he fired. Defendant admitted that he fired the SKS rifle during the incident, but he did not know how many rounds were fired because there were "a lot of things that's still really foggy, and I was really drunk...." Defendant admitted that he told the detectives that he did not fire his "AK-47," even though he did not own a fully automatic AK-47, and he did not know why he said that.
Defendant testified he thought he knew the officers' locations from their voices and fired in the opposite directions, but admitted that he did not know where they were located. He did not stop to think that the police had completely surrounded the trailer.
During the postarrest interview, defendant referred to an earlier incident involving "Sergio" and a shooting near the school where he had worked. The prosecutor asked defendant to explain what he meant. Defendant testified he was working at the school when "Sergio Nunez" exchanged gunshots with the police, and he helped lock down the school and get children to safety. He learned details about the incident from his friends on the police department - that Nunez had hostages and the police shot and killed him.
Defendant testified that he talked to his wife during the time he was in the trailer, but he did not remember telling her: " 'You think Sergio ... was big, you wait.' " Defendant admitted he told his wife that he was going to shoot the propane tanks to see if the trailer would blow up. He never said that he was going to make Officer Hamilton's wife a widow, and he did not threaten to kill SWAT officers before he killed himself.
Defendant testified he did not know why he loaded all his guns before the incident began, since he planned to kill himself with the .40-caliber Glock handgun.
"Q. And that [loading the guns] was before the police came; right?
"A. Correct.
"Q. Did you want them to come?
"A. No. If I wanted the police to come, I would have called them. That's why I just told my daughter, you gotta go.
"Q. What did you think was gonna [sic] happen when you text a message to Eddie Hamilton that you were going to end it all?
"A. That was farther down the road, I believe. That was after him and I had a big argument, I believe. There's a lot of things that's, like, flipped back and forth, mixed up as far as what happened when and when did it happen." (Italics added.)
Defendant's account is contradicted by Officer Hamilton's testimony. Hamilton testified that as he talked to defendant's daughter earlier that morning, he received the text message from defendant that he believed was a suicide threat. After he received that text message, he tried to call defendant, but he did not answer. Hamilton then called dispatch and requested the welfare check at defendant's trailer.
Defendant testified he told the detectives during the postarrest interview that he was "missing on purpose," and if he heard a voice from one direction, he would shoot in the other direction.
"Q. But you also testified that you weren't really sure where the officers were. Was that true?
"A. Correct.
"Q. How could you miss them on purpose if you didn't know where they were?
"A. Sound. It's kinda like I can hear that officers over there talk, and if my eyes were closed, I could tell it was coming from that direction.
"Q. Did you tell the detectives that if you wanted to, you could shoot the officers right through their vests?
"A. Yeah, I think I did. But I didn't want to."
Redirect examination
Defendant testified he did not own an AK-47, he was never a "cage fighter," and he did not have a black belt in Aikido; he did not have life insurance; and he was not listening to his police scanner "app" during the incident. Defendant testified he had a habit of bragging about himself to people. Other defense witnesses
The defense called two people to testify about their friendships with defendant, and that he was a good and honest person.
PROCEDURAL HISTORY
Competency proceedings
On February 18, 2014, shortly after the felony complaint was filed, defense counsel declared a doubt as to defendant's competency to stand trial. The court suspended proceedings pursuant to section 1368. The parties stipulated to the appointment of Dr. Bruce Walker to examine defendant.
On March 6, 2014, Dr. Walker submitted his report under seal. On March 11, 2014, the court reviewed Dr. Walker's report, found defendant was not competent to stand trial, and ordered appropriate services. On April 1, 2014, the court committed defendant to Patton State Hospital and ordered the involuntary administration of psychotropic medication.
On July 1, 2014, the court reviewed the report from Patton State Hospital, found defendant was competent to stand trial, and reinstated criminal proceedings. The court's exclusion of evidence of defendant's alleged mental defect
Prior to trial, the People filed a pretrial motion in limine to exclude as irrelevant any evidence that defendant had a possible mental illness, mental defect, or mental disability; that he may have suffered physical or sexual abuse as a child; or that he intended to commit suicide on the day of the charged offenses.
The court held a hearing on the People's motion, and gave a tentative ruling that it would exclude such evidence.
"The charges that have been filed against [defendant] are general intent crimes, meaning that there does not need to be a specific intent
finding. Specific intent crimes do allow in certain circumstances evidence from the Defense of mental illness, mental defect, or mental disability. There's some specific rules in that regard and requirements, but general intent crimes do not. There's one exception ... that could possibly be applicable here, and that has to do with mental state, which is ... 'knowledge or should have knowledge that the person is a peace officer....'
"In this particular case, although that is a requirement for the charges, which could possibly allow that mental defect, mental illness, mental disability testimony, based on everything ... that I'm aware of in this case, there's no issue that [defendant] had an understanding that the individuals outside the location that he was at were peace officers. So, therefore, my tentative would be to grant [the motion] and to exclude any evidence regarding mental illness, mental defect, or mental disability as it is not a defense. It is not an ameliorating factor. And it does not address any of the issues required to be proven by the People as to the charges that have been filed." (Italics added.)
Defense counsel objected. Counsel did not make an offer of proof as to what type of evidence he intended to introduction on this topic. However, counsel argued that evidence of defendant's mental status should be admitted through defendant's potential trial testimony, and portions of his postarrest interview with the detectives. Counsel asserted it was important for defendant to testify about "the events that led up to this incident, why he did what he did, and the fact that he basically intended in this case to induce the officers to kill him rather than him having an intent to hurt anyone else or to put them in danger in any way."
Defense counsel further argued that defendant discharged rounds from a firearm "that did not endanger any of the officers, as they did not come close to any of the officers to constitute danger, but that he was merely trying to induce them to basically kill him in an act of a suicide by cop, so to speak. The events leading up to this and his perceptions of what was occurring at the time and where he discharged the firearm and why and his close relationship he has with various law enforcement officers, some of whom are involved in this case, we believe are all relevant."
The prosecutor replied that evidence about defendant's mental state, and the circumstances that led up to his acts, was only relevant to motive, and the People were not required to prove motive as an element of the offenses. The prosecutor agreed that the jury could be instructed that lack of motive may show that defendant was not guilty, "but what we're talking about is allowing the Defense to put on evidence of what his motive was to commit a crime. It's not a defense to the crime. It just explained why he did what he did."
The prosecutor further argued that whether or not defendant was trying to shoot the officers, he fired in their direction and "there were a few near misses," and the charged offenses were based on "doing an act that would lead a reasonable person to believe that another person could be touched in a harmful way and so I think it would be excluded."
The court's ruling
After hearing argument, the court stated that it understood defense counsel's position but granted the People's motion and excluded any evidence about defendant's alleged mental illness, mental defect, or mental disability. The court said the charged offenses of assault with a firearm on a peace officer, in violation of section 245, subdivision (d)(1), were not specific intent crimes.
"[The charged offenses required] an act that's done willfully. It means willingly. It's not required that the individual intend to break the law, hurt someone else, or gain any advantage. And the elements ... clearly indicate that it simply has to be a willful act and that essentially that he had the ability to apply force, that he was aware of facts that would lead a reasonable person to realize and a reasonable person would know that the individuals fired upon were peace officers, and he was not acting in self-defense or defense of someone else."
In section I, we will address defendant's contention that the court erroneously excluded evidence of his alleged mental defect, and that such evidence could have negated the requisite knowledge and intent for the charged offenses.
The court further held that the admission of defendant's postarrest interview would be subject to this evidentiary ruling. A redacted version of defendant's interview was subsequently admitted into evidence.
The court's clarification of the ruling
On the first day of trial, the parties asked the court for clarification about its prior ruling. The court replied there would be "no witnesses that will testify as to the mental state of the defendant, any mental diagnosis. By way of example ... but hypothetically, that [defendant] has been diagnosed as being bipolar or may be schizophrenic or anything like that. None of those mental diagnoses. That part is excluded based on the pretrial ruling."
The court said that defendant and other witnesses could testify about "what his thought process was, that's fair game because motive, although it's not dispositive of the issue and although there's no sua sponte duty by the Court to [instruct] as to motive, that's always something that can be put before the jury and argued. [¶] But as to any mental diagnosis, 'I was suffering from depression,' things like that, that's out. [¶] As to, 'Life wasn't good, bad things were happening in my life,' ... 'and so I wanted to kill myself or someone to kill me,' that's testimony that can be brought out in front of this jury." Instructions
The jury was instructed with CALCRIM No. 370, motive, that the People were not required to prove defendant had a motive to prove the charged crimes, but "[i]n reaching your verdict, you may ... consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty."
The jury was instructed with CALCRIM No. 860, the pattern instruction on assault with a firearm on a peace officer. In addition to defining the charged offenses, the instruction stated: "Voluntary intoxication is not a defense to assault."
The jury was instructed that assault with a deadly weapon, a firearm, was a lesser included offense to the charged offenses of assault with a firearm on a peace officer; and that voluntary intoxication was not a defense to assault. (CALCRIM No. 875)
Defendant did not object to the instructions that stated voluntary intoxication was not a defense to assault, and he did not request a pinpoint instruction on voluntary intoxication. Convictions
In section I, we will also address defendant's arguments that the court erroneously included this sentence in the pattern instruction, and defense counsel was prejudicially ineffective for failing to object to the instruction.
On March 18, 2015, defendant's jury trial began with the presentation of evidence.
On March 23, 2015, the jury convicted defendant of counts II through V, assault with a firearm on a peace officer (§ 245, subd. (d)(1)), based on the two officers who performed the welfare check and two members of the SWAT team:
On March 23, 2015, the parties made their closing arguments; the jury began deliberations at 1:30 p.m., and returned with the verdicts at 4:30 p.m.
Count II: Officer Bell
Count III: Officer Clinton
Count IV: Sergeant Starr
As noted above, defendant was charged in count I with assault with a firearm on Officer Ballestero. After the prosecution rested, the court granted defendant's motion to dismiss that charge and it did not go to the jury; the court did not renumber the counts.
The jury found defendant intentionally and personally discharged a firearm during the commission of counts II through IV (§ 12022.53, subd. (c)); and defendant used a firearm during the commission of counts IV and V (§ 12022.5, subd. (a)), as alleged in the amended information.
Defendant was also convicted of count X, drawing or exhibiting a firearm, a semiautomatic rifle, with the intent to resist or prevent arrest by a peace officer (§ 417.8).
Defendant was found not guilty of counts VI through IX, assault with a firearm on a peace officer, related to the following members of the SWAT team:
Count VI: Deputy Hernandez
Count VII: Deputy Perez
Count VIII: Deputy August
Count IX: Deputy Sorrow. Sentencing hearing
As we will explain below, the trial evidence showed that the officers alleged as victims in counts VI through IX were not in the direct line of fire, in contrast to Officers Bell and Clinton, Sergeant Starr, and Deputy Booker.
On April 21, 2015, the court conducted the sentencing hearing. Defense counsel requested the court sentence defendant to 24 years, based on concurrent terms for all counts. Counsel argued the sentence was appropriate based on defendant's personal history and letters of support, he was distraught when he committed the offenses, and he was very remorseful. Defendant personally addressed the court and said he was sorry, wished he could take back every minute of what happened, and asked for a second chance.
The prosecutor asked the court to impose an aggregate term of 50 years based on consecutive sentences. While defendant was distraught at the time, he had family support but failed to ask anyone for help. He was remorseful but still would not take responsibility for his actions, and the evidence showed he repeatedly fired at the officers who surrounded his trailer.
The court said it was a "tough case" because defendant had been a "great asset" to the community.
"But it is difficult for me to sentence you to this lengthy prison sentence just more on a personal level because there's no question in my mind that the jury's verdict was reflective of the evidence. It is an accurate determination of the evidence. I'm not in any way saying that they got it wrong or that it wasn't appropriate.
"This is one of those situations where one day changed everything. So I am going to sentence you to the prison sentence.
"I did look carefully into whether or not there would be some appropriate factor to consider to place you on a probationary sentence, and I just don't see it here based on the evidence and the law and the sentencing scheme. And so I'm not going to sentence you to probation."
The court believed that defendant was taking responsibility, but "your view of the responsibility may be different than the law's view of it. And that's the issue."
The court sentenced defendant to an aggregate term of 32 years eight months as follows: as to count II, assault with a firearm on Officer Bell, the lower term of four years, plus 20 years for the section 12022.53 enhancement; and count III, assault with a firearm on Officer Clinton, a consecutive term of two years, plus six years eight months for the section 12022.53 enhancement (one-third the midterms). The court imposed concurrent terms for counts IV and V, as to Sergeant Starr and Deputy Booker; and stayed the terms imposed for the accompanying firearm enhancements, and for count X.
Prior to trial, defendant rejected plea offers of 24 and 28 years.
Both the abstract of judgment and minute order originally stated that the court imposed the four-year term for "count I." However, the court granted defendant's motion to dismiss count I as to Officer Ballestero before the case went to the jury and did not renumber the counts. The jury found defendant guilty of count II, assault with a firearm on Officer Bell, as alleged in the amended information and stated on the verdict form, and defendant was sentenced on that count. On August 14, 2015, the superior court ordered correction of the minute order and abstract because of the clerical error, and clarified that count I had been dismissed, and defendant was convicted and sentenced for count II.
DISCUSSION
I. Admissibility of Defendant's Alleged Mental Defect and Voluntary Intoxication
Defendant was convicted of four counts of violating section 245, subdivision (d)(1), assault with a firearm on a peace officer. Defendant raises two separate but related issues as to whether the court violated his due process right to present a defense to two of those counts.
First, he argues the court erroneously granted the People's motion to exclude any defense evidence that defendant had an alleged mental illness, defect, or disability. Defendant argues that evidence of his alleged mental illness was relevant to show that he did not have the requisite knowledge to commit the charged assault offenses, and that he actually knew or should have known the alleged victims in counts IV and V, Sergeant Starr and Deputy Booker of the SWAT team, were present at the scene and peace officers. Defendant concedes the record is silent as to the evidence that counsel might have introduced about his alleged mental illness, but points to the procedural history of the case, when the court suspended criminal proceedings and committed defendant to Patton State Hospital pursuant to section 1368, as indicative of what counsel might have introduced.
Second, defendant raises the separate but related argument that the court erroneously instructed the jury with CALCRIM No. 860, that voluntary intoxication was not a defense to the same two assault counts based on Sergeant Starr and Deputy Booker. As with his mental illness claim, defendant asserts that evidence of his intoxication was relevant to show he did not have the requisite knowledge to commit the charged assault offenses, and that he actually knew or should have known that Sergeant Starr and Deputy Booker were present and peace officers. Defendant asserts that none of the deputies on the SWAT team announced their presence or identified themselves, they attempted to conceal their presence, and they wore camouflage uniforms.
In the alternative, defendant argues defense counsel was prejudicially ineffective for failing to object to the court's instruction that voluntary intoxication was not a defense to the assault charges.
As we will explain, assault with a firearm on a peace officer is a general intent offense, a defendant's mental illness and/or voluntary intoxication is not a defense, and such evidence is not admissible to negate the requisite intent and knowledge elements of the offense.
A. Mental Defect and Voluntary Intoxication
"The diminished capacity defense, which addressed an accused's 'general capacity or ability to form a specific intent or harbor a mental element of an offense,' was abolished in 1982. [Citations.]" (People v. Reyes (1997) 52 Cal.App.4th 975, 982, fn. omitted (Reyes); § 25, subds. (a), (b).) As a result, evidence of defendant's voluntary intoxication and/or mental defect "may no longer be used as an affirmative defense to a crime," and such evidence is admissible "solely to negate an element of crime which must be proven by prosecution. [Citation.]" (Reyes, supra, 52 Cal.App.4th at p. 982; § 25, subd. (a).)
Therefore, "[e]vidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged." (§ 28, subd. (a), italics added.)
Similarly, "[n]o act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act." (§ 29.4, subd. (a), italics added; former § 22.) "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (§ 29.4, subd. (b), italics added; former § 22.)
Thus, evidence of defendant's mental defect and/or voluntary intoxication is not an affirmative defense, but only admissible on the issue of whether the defendant actually formed a required specific intent. It is inadmissible to negate the existence of general criminal intent. (People v. Williams (2001) 26 Cal.4th 779, 789 (Williams); People v. Atkins (2001) 25 Cal.4th 76, 81 (Atkins); People v. Carr (2000) 81 Cal.App.4th 837, 843; People v. Parks (1971) 4 Cal.3d 955, 960.)
The evidentiary limitations stated in sections 28 and 29.4 " 'embod[y] a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions.' [Citation.]" (People v. Timms (2007) 151 Cal.App.4th 1292, 1300.) These limitations do not deprive defendant of the ability to present a defense or relieve the People of the burden of proving every element of the charged crime beyond a reasonable doubt, and do not violate defendant's constitutional rights to due process and equal protection. (People v. Martin (2000) 78 Cal.App.4th 1107, 1116-1117; People v. Carlson (2011) 200 Cal.App.4th 695, 707-708; People v. Timms, supra, 151 Cal.App.4th at pp. 1299-1302.)
B. General and Specific Intent
The determination of whether evidence of the defendant's mental defect and/or voluntary intoxication is relevant and admissible depends on whether the charged offense is a general or specific intent crime. (People v. Mendoza (1998) 18 Cal.4th 1114, 1127 (Mendoza).)
The terms "[s]pecific and general intent have been notoriously difficult terms to define and apply ...." (People v. Hood (1969) 1 Cal.3d 444, 456 (Hood).)
"When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent." (Hood, supra, 1 Cal.3d at pp. 456-457; Mendoza, supra, 18 Cal.4th at p. 1123; People v. Davis (1995) 10 Cal.4th 463, 518, fn. 15.)
"When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent." (Hood, supra, 1 Cal.3d at p. 457; People v. Davis, supra, 10 Cal.4th at p. 518, fn. 15.)
However, these definitions " 'should not be applied mechanically....' [Citation.]" (Reyes, supra, 52 Cal.App.4th at p. 983.) "A general intent crime may also involve a specific mental state, such as knowledge. [Citations.]" (People v. Cleaves (1991) 229 Cal.App.3d 367, 380.)
If a general intent crime requires defendant to have the mental state of actual, subjective knowledge of particular facts or circumstances, evidence of defendant's mental illness and/or voluntary intoxication may be admissible to prove defendant lacked that mental state. (Mendoza, supra, 18 Cal.4th at pp. 1130-1133; People v. Letner and Tobin (2010) 50 Cal.4th 99, 186-187; Reyes, supra, 52 Cal.App.4th at pp. 985-986.)
As we will explain, this rule does not apply to a general intent crime with both an actual, subjective knowledge element, and an objective knowledge element. (People v. Finney (1980) 110 Cal.App.3d 705, 712-714 (Finney); People v. Whalen (1973) 33 Cal.App.3d 710, 717 (Whalen).)
C. Assault and General Intent
Section 240 defines assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."
"[A]ssault is a general intent crime, 'established upon proof the defendant wilfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.' [Citations.]" (People v. Chance (2008) 44 Cal.4th 1164, 1169.) Assault "does not require a specific intent to injure the victim." (People v. Wyatt (2010) 48 Cal.4th 776, 780 (Wyatt); Williams, supra, 26 Cal.4th at p. 788.)
"Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm. [Citation.]" (People v. Colantuono (1994) 7 Cal.4th 206, 214, superseded by statute on other grounds as explained in People v. Conley (2016) 63 Cal.4th 646, 660, fn. 4; Wyatt, supra, 48 Cal.4th at p. 780.)
Since assault is a general intent crime, "juries should not 'consider evidence of defendant's intoxication [or mental defect] in determining whether he committed assault' [citation]." (Williams, supra, 26 Cal.4th at p. 788.) Assault "does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.)
"[A] defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery." (Id. at p. 788, fn. 3.)
Assault with a deadly weapon is similarly a general intent offense, it does not require specific intent, and evidence of the defendant's mental illness and/or voluntary intoxication will not negate the requisite intent. (People v. Rocha (1971) 3 Cal.3d 893, 899; Atkins, supra, 25 Cal.4th at p. 91.) "Since alcohol is so often a factor inducing simple assaults ... it would be anom[a]lous to permit exculpation because of intoxication" for assault with a deadly weapon. (People v. Rocha, supra, 3 Cal.3d at p. 898.)
In this case, defendant was charged and convicted of multiple counts of assault with a firearm on a peace officer in violation of section 245, subdivision (d)(1):
"Any person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years." (Italics added.)
As with simple assault and assault with a deadly weapon, assault with a firearm or deadly weapon on a peace officer is also a general intent crime, and evidence of the defendant's mental illness and/or voluntary intoxication is not a defense and cannot negate the requisite general intent. (Finney, supra, 110 Cal.App.3d at pp. 712-713; Whalen, supra, 33 Cal.App.3d at p. 717; People v. Chance, supra, 44 Cal.4th at pp. 1168-1169.)
In Whalen, supra, 33 Cal.App.3d 710, the court rejected the defendant's claim that the trial court had a sua sponte duty to instruct on voluntary intoxication as a defense to assault with a deadly weapon on a peace officer, since the statutory offense was based on either the defendant's actual, subjective knowledge, or objective knowledge that he reasonably should have known the victim was a peace officer.
"Defendant admits that an assault with a deadly weapon on a police officer is a general intent crime and that voluntary intoxication is not, ordinarily, a defense to such a crime. [Citations.] He argues that to commit the aggravated assault proscribed by [former] section 245, subdivision (b), a person must know that he is assaulting a police officer, and that it is to negate such knowledge that an instruction on voluntary intoxication must be given. Defendant relies on the proposition that 'where knowledge is a requisite element of a crime, the court must instruct, on its own motion, that in determining the existence of such knowledge the jury may take into consideration the fact that the accused was intoxicated at the time he committed the act in question if there is evidentiary basis for such instruction.' [Citation.]
"In view of the evidence presented in this case, [the defendant's] contention that the court erred in failing to instruct on voluntary
intoxication must be predicated on the assumption that nothing less than actual knowledge will suffice for the commission of an assault with a deadly weapon on a peace officer. This assumption, however, runs counter to the explicit language of [former] ... section 245, subdivision (b); the section states that the crime is committed if the person 'knows or reasonably should know' that his victim is a peace officer. Defendant's categorical assumption also thwarts the legislative purpose; the law was obviously adopted to discourage wanton attacks upon peace officers who are often called upon to risk their lives for the protection of society. To paraphrase the words of Mr. Justice Traynor in People v. Hood, supra, 1 Cal.3d [at p.] 458, it would be anomalous to allow evidence of intoxication, whether from the consumption of alcohol or drugs, to relieve a man of responsibility for viciously attacking a police officer with a deadly weapon when he reasonably should have known that the victim was a police officer; such crimes are frequently committed in just such a manner." (Id. at p. 717, italics added.)
Whalen held that based on the statutory language, an objective reasonable person test was operative when dealing with assaults on a peace officer because of public concern for the safety of such individuals. (Whalen, supra, 33 Cal.App.3d at p. 717.)
In Finney, supra, 110 Cal.App.3d 705, the defendant was convicted of assault on a peace officer with a deadly weapon, when he led officers on a high speed chase and used his vehicle to ram patrol cars. (Id. at pp. 709-710.) The defendant argued that counsel should have raised voluntary intoxication as a defense. Finney held that the court properly instructed the jury that voluntary intoxication was not a defense to assault with a deadly weapon on a peace officer "where, as here, the facts show that the defendant 'reasonably should know' that his victims are peace officers. A defendant's voluntary intoxication is no defense to the general intent crimes of simple assault or assault with a deadly weapon. [Citations.] Under the same rationale, we also conclude that defendant's voluntary intoxication will not negate an alternate mental element required for an assault on a peace officer ...." (Id. at p. 712-713.) In reaching this conclusion, Finney acknowledged that voluntary intoxication could negate a defendant's actual knowledge, if that was an element of an offense, but that intoxication could not negate the alternate element that "the defendant 'reasonably should know' that his victim is a peace officer." (Id. at p. 713.)
D. Knowledge and General Intent Crimes
Defendant acknowledges the holdings in Finney and Whalen, but argues they were wrongly decided. Defendant asserts that in contrast to simple assault, a violation of section 245, subdivision (d)(1), carries a knowledge element, that the perpetrator knew he was assaulting "a peace officer." Defendant argues this knowledge requirement is similar to specific intent, so that evidence of a mental defect and/or voluntary intoxication is admissible as a defense to negate such knowledge.
A series of cases have addressed similar issues regarding the knowledge elements of assaultive offenses, and drawn distinctions between general intent crimes that require actual, subjective knowledge, compared to offenses that require objective knowledge imputed to a reasonable person.
In Williams, supra, 26 Cal.4th 779, the court held that assault was a general intent crime. (Id. at p. 784.) It further held that the defendant was not guilty of assault unless he was "aware of facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct." (Id. at p. 788.) In adopting this knowledge requirement, however, Williams reaffirmed that "[a]ssault is still a general intent crime [citations], and juries should not 'consider evidence of defendant's intoxication in determining whether he committed assault' [citation]," and assault "does not require a specific intent to injure the victim. [Citation.]" (Ibid.)
"[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.)
In Wyatt, supra, 48 Cal.4th 776, the defendant was convicted of the assault on a child causing death in violation of section 273ab. As one of the elements of the offense, the prosecution was required to prove that "the defendant caretaker 'commit[ted] an assault with force such that a reasonable person would know it was likely to inflict great bodily injury.' [Citation.]" (Id. at p. 780, italics added in original.) Wyatt noted that "our cases consistently recognize[] that assault does not require a specific intent to injury the victim." (Ibid.) Wyatt held that section 273ab was a general intent offense, and the knowledge element did not turn the offense into a specific intent crime. (Ibid.)
"[A] defendant may be guilty of an assault within the meaning of section 273ab if he acts with awareness of facts that would lead a reasonable person to realize that great bodily injury would directly, naturally, and probably result from his act. [Citation.] The defendant, however, need not know or be subjectively aware that his act is capable of causing great bodily injury. [Citation.] This means the requisite mens rea may be found even when the defendant honestly believes his act is not likely to result in such injury. [Citation.]" (Id. at p. 781.)
In Atkins, supra, 25 Cal.4th 76, the defendant argued that voluntary intoxication was admissible to negate the mental state required for arson because the crime required the specific intent to burn the relevant structure or land. Atkins disagreed and held that arson only required "a general criminal intent and that the specific intent to set fire or burn or cause to be burned the relevant structure or forest land is not an element," even though the statutory language required a person to " 'willfully and maliciously' " set a fire. (Id. at p. 84.) Atkins held such language did not transform the offense into a specific intent crime. (Id. at pp. 85-86.) "[T]he definition of arson does not refer to defendant's intent to do some further act or achieve some additional consequence," and voluntary intoxication was not admissible to negate the general intent. (Id. at p. 93.)
In Mendoza, supra, 18 Cal.4th 1114, the court addressed the requisite mental state for aider and abettor liability. Mendoza held that an alleged aider and abettor is liable for an "inherently criminal act only if the necessary mental states of knowledge and intent exist." (Id. at p. 1129.) The aider and abettor "must intend not only the act of encouraging and facilitating but also the additional criminal act the perpetrator commits." Mendoza held this intent requirement "fits within the Hood definition of specific intent," (ibid.) and evidence of voluntary intoxication was admissible "to show the person did not act knowingly and intentionally." (Id. at p. 1130, italics in original.) Mendoza clarified its holding was "very narrow." (Id. at p. 1133.)
"Defendants may present evidence of intoxication solely on the question whether they are liable for criminal acts as aiders and abettors. Once a jury finds a defendant did knowingly and intentionally aid and abet a criminal act, intoxication evidence is irrelevant to the extent of the criminal liability." (Ibid., italics in original.)
In Reyes, supra, 52 Cal.App.4th 975, the court held that evidence of the defendant's voluntary intoxication and mental disorders was admissible to refute the knowledge element of receiving stolen property. (Id. at p. 979.) While receiving stolen property was a general intent offense, an element of the crime required proof that " 'the defendant knew the property to be stolen.' [Citation.]" (Id. at p. 984.) "[C]lassification of the crime as one of general intent has nothing to do with the required element of knowledge, a specific mental state," (id. at p. 985) and "with regard to the element of knowledge, receiving stolen property is a 'specific intent crime ....' " (Ibid.) Reyes held the jury should have been instructed on the effect of the defendant's voluntary intoxication and mental disorders on his ability to form the requisite mental state of knowledge. (Ibid.)
In People v. Jefferson (2004) 119 Cal.App.4th 508 (Jefferson), the court addressed a related issue involving the distinctions between the requisite mental states for certain offenses. In that case, the defendant was convicted of multiple counts of battery against correctional officers; he committed the offenses while being held in a prison's psychiatric unit. He argued that evidence of his mental illness was admissible to establish self-defense, and that his mental disorder was also relevant to establish that for purposes of his case, the reasonable belief standard should be based on an individual with a mental illness, who was being detained and treated in a mental health prison ward. (Id. at pp. 516-519.) Jefferson held the trial court properly rejected the evidence and the self-defense claim, and noted that the issue was "whether a 'reasonable person' in defendant's situation ... would be justified in believing he was in imminent danger of bodily harm." (Id. at p. 519.) The court held that such a "reasonable person" was not properly defined as "one who hears voices due to severe mental illness," but rather as "an abstract individual of ordinary mental and physical capacity ...." (Ibid.) Jefferson held that the proper standard to be employed by the jury in determining whether the defendant's belief was "reasonable" was an objective rather than subjective standard. (Id. at p. 520.)
E. Analysis
Defendant contends his convictions in counts IV and V for assault with a firearm on peace officers, as to Sergeant Starr and Deputy Booker of the SWAT team, must be reversed because the court failed to instruct the jury that both his purported mental illness and voluntary intoxication prevented him from having the specific mental state of knowing they were peace officers. Defendant asserts that while assault with a firearm on a peace officer is a general intent crime, the offense has an additional knowledge element similar to specific intent that the perpetrator had to know the victim was a peace officer. Defendant argues that, as in Mendoza and Reyes, evidence of both mental illness and voluntary intoxication was relevant and admissible to negate that intent and knowledge.
Defendant acknowledges that Finney rejected a similar argument but asserts it was wrongly decided, and its "differential treatment of 'knows' and 'reasonably should know' does not hold up under careful analysis" as discussed in Mendoza. Defendant thus concludes the court erroneously excluded evidence of his alleged mental illness, defect, or disability; improperly instructed the jury that voluntary intoxication was not a defense to the assault charges; and defense counsel was prejudicially ineffective for failing to object to the instruction that voluntary intoxication was not a defense.
We first note that while defendant objected to the People's pretrial motion to exclude any evidence of mental illness, defect, or disorder, and argued that such evidence was admissible to negate the requisite intent for the assault charges, defendant did not make any offer of proof as to what type of evidence he intended to introduce. On appeal, defendant concedes this point but notes that the court suspended criminal proceedings shortly after he was taken into custody pursuant to section 1368, and argues his brief stay at Patton State Hospital was indicative of what type of evidence might have been admitted.
The expert's report on defendant's competency to stand trial was submitted under seal; defense counsel did not reference that report when he argued, on the first day of trial, that evidence of mental illness was admissible to negate intent. There is a reference in the clerk's transcript that defendant moved prior to trial to enter a plea of not guilty by reason of insanity; the court ordered defendant to be examined by two experts, the experts filed their reports under seal, but defendant did not pursue that plea. We thus have no basis to know what type of evidence defendant intended to introduce, aside from the testimony about defendant's statements during and after the incident, that he was distraught and wanted to commit suicide.
We further note that as to voluntary intoxication, defendant asserts defense counsel was prejudicially ineffective for failing to object to the pattern instruction that stated that voluntary intoxication was not a defense to the assault charges. The record suggests why counsel might have decided not to object. By the time the court instructed the jury, it had already ruled that the assault charges were general intent offenses and evidence of defendant's alleged mental illness was not admissible to negate intent. Counsel likely realized that the same analysis would have applied to any argument that the jury could rely on voluntary intoxication to negate that same general intent.
In any event, defendant's reliance on Mendoza and Reyes is misplaced. Those cases held that when the defendant's actual subjective knowledge is a required element of an offense, that knowledge is equivalent to specific intent so that evidence of the defendant's mental illness and/or voluntary intoxication is admissible to possibly negate that mental state. By contrast, section 245, subdivision (d)(1) is violated when the perpetrator either has actual knowledge the victim was a peace officer, or "reasonably should know" the victim was a peace officer. This language indicates a defendant may be found guilty under either a subjective standard based on his actual knowledge, or an objective standard based on the fact that a reasonable person would have known the victim was a peace officer, where the requisite knowledge is imputed under the objective "reasonable person" standard discussed in Jefferson. Thus, a defendant's lack of actual knowledge the victim was a peace officer, because of either intoxication or mental illness, is not a defense to the crime if a reasonable person would have known the victim was a peace officer. (See, e.g., Williams, supra, 26 Cal.4th at p. 790; Wyatt, supra, 48 Cal.4th at pp. 780-781; Atkins, supra, 25 Cal.4th at pp. 85-86.)
We agree with Finney and Whalen that assault with a firearm on a peace officer does not include a requisite mental state that is the equivalent of specific intent, and the court did not erroneously exclude evidence of defendant's alleged mental illness. In addition, the court properly instructed the jury that defendant's voluntary intoxication was not a defense to the assault charges, and counsel was not ineffective for failing to object to the instruction.
1. Due Process Argument
Defendant further argues that the court's exclusion of both mental illness and voluntary intoxication as defenses to the assault charges violated his due process right to present a defense. As we have explained, however, these evidentiary limitations do not deprive the defendant of the ability to present a defense or violate defendant's constitutional rights to due process and equal protection. (People v. Martin, supra, 78 Cal.App.4th at pp. 1116-1117; People v. Carlson, supra, 200 Cal.App.4th at pp. 707-708; People v. Timms, supra, 151 Cal.App.4th at pp. 1299-1302.)
More importantly, defendant was able to present evidence to the jury in support of the theory that he did not know or reasonably should have known that Sergeant Starr and Deputy Booker were outside the trailer and peace officers; nothing in the instructions would have prevented the jury from considering this defense theory. The officers and deputies who were at the scene testified that the windows on defendant's trailer were blocked, the blinds closed, the window on the door was frosted, and defendant never opened the trailer door until he surrendered. Officers Bell and Clinton (counts II and III) testified they announced their presence and identified themselves as law enforcement officers, and defendant started firing multiple shots shortly after they tried to talk to him.
In contrast, Sergeant Starr, Deputy Booker, and the other members of the SWAT team testified they were wearing camouflage uniforms; they did not announce their presence; they were not communicating with defendant; and they purposefully took secluded positions around the defendant's trailer. Defendant testified at trial that he did not know the SWAT officers were there until he surrendered. The jury was instructed that assault with a deadly weapon, "which is assault with a firearm," was a lesser included offense to counts II through IX, assault with a firearm on a peace officer.
The jury thus could have concluded that, based upon the SWAT team's efforts to conceal their presence, defendant did not actually or reasonably know they were present or peace officers, and had the option to find defendant guilty of the lesser included offense of assault with a deadly weapon.
The jury's verdicts, however, indicate that it carefully reviewed the entirety of the evidence and rejected defendant's trial claim that he did not know the deputies from the SWAT team were present. During the incident, defendant made statements to both Officers Hamilton and Clinton that showed he was listening to the radio traffic from the Ridgecrest Police Department on his cell phone's scanner "app." At trial, defendant admitted he could hear the Ridgecrest traffic channels, but claimed he might not have been listening to the scanner during the incident. Nevertheless, when Clinton first tried to talk to defendant, defendant said that he heard his address "over the radio." During the postarrest interview, he told the detectives that he heard Officer Bell "on my phone" order the evacuation of the trailer park.
Also during the postarrest interview, defendant recounted what he was thinking during the incident, and said that he knew it was going to take about an hour and a half for the SWAT team to arrive at the trailer park. At trial, Deputy Sorrow testified that it took longer than usual for the SWAT team to reach the trailer park that day because the helicopter pilot encounter cloudy weather and had to circle before continuing the trip. Defendant's postarrest statement to the detectives indicated that he knew the SWAT team was on the way and their estimated time of arrival, again consistent with hearing radio traffic that the SWAT team was going to be in the trailer park. At trial, defendant claimed he "bluffed" when he made various statements, but the jury obviously rejected his trial explanations and could have found that he actually knew that both Ridgecrest police officers and members of the SWAT team were outside his trailer.
Also during the postarrest interview, defendant said he fired at the trailer's door, floor, and walls, and he was shooting "[a]nywhere. I didn't care, dude." Defendant said he knew that the police had evacuated the trailer park and there were no "innocent bystanders" present, again raising the inference that he knew the only people outside the trailer were peace officers. Defendant admitted he "[a]bsolutely" knew that his actions put officers in jeopardy, but claimed he did not "intentionally shoot in any officer's direction."
At trial, defendant tried to discount some of his postarrest statements. However, he testified that after his initial exchange with Officers Bell and Clinton, he "figured there would be probably more than one" officer at the trailer park. Defendant did not explain why he loaded all five of his firearms, and whether he realized the police were going to respond to his trailer once he sent the text message to Officer Hamilton that he was going to kill himself.
Defendant's trial testimony that he did not fire directly at the officers was also contradicted by the evidence. Both Sergeant Starr and Deputy Booker testified they tried to conceal their positions around defendant's trailer. However, both deputies testified about isolated and specific sets of gunshots that were fired directly at their positions and hit the dirt immediately in front of them. Booker testified that he was underneath a trailer directly in front of defendant's trailer; as he carefully crawled forward to move a lawn ornament that obstructed his view, defendant fired from the trailer and the shots hit the dirt directly in front of him. Starr, who was located under another trailer, testified that within minutes of taking his position, defendant fired two separate volleys at his location. The first set of shots hit the dirt directly in front of him, and the second set of shots landed so close that Starr could hear the "whiz" of the bullets.
Deputy Booker testified that after defendant surrendered, he went into the trailer, looked through the bullet holes in the door and walls, and testified that he could line up certain holes with his position, and the positions of his colleagues on the SWAT team. The record suggests that defendant aimed his shots immediately in front of the positions of Booker and Sergeant Starr. This conclusion is consistent with defendant's postarrest statements to the detectives, that he was a marksman and could have shot the officers if he wanted to.
We further note that the jury found defendant was not guilty of assault with a firearm on the other four deputies from the SWAT team, likely because the jury concluded the People failed to prove beyond a reasonable doubt that defendant fired directly at the locations where those four deputies were taking cover. While Deputies Hernandez and Perez were located behind Sergeant Starr, the evidence showed that the gunshots were fired directly in front of Starr and not toward the other two deputies.
We thus conclude that assault with a firearm on a peace officer is a general intent offense, and evidence of a defendant's mental illness and/or voluntary intoxication is not admissible to negate that intent. We also find that the court properly granted the People's motion to exclude evidence of defendant's purported mental illness, and instructed the jury that voluntary intoxication was not a defense to the assault charges. Finally, we find that the jury heard evidence in support of defendant's claim that he did not have subjective or objective knowledge the SWAT team was present, and it could have found him guilty of the lesser included offense of assault with a deadly weapon. However, the verdicts herein reflect the jury rejected defendant's credibility on these points.
II. Instructions on Assault
Defendant next contends his four convictions for assault with a firearm on a peace officer must be reversed because CALCRIM No. 860, which defined the elements of the offense, failed to instruct the jury that the named victim in each count must have been subject to the application force, as explained in People v. Velasquez (2012) 211 Cal.App.4th 1170 (Velasquez). Defendant asserts that CALCRIM No. 860 improperly permitted the jury to convict defendant of multiple assault counts if the jury found that an act would directly and probably result in an application of force to any of the victims, instead of the victim identified in each count.
A. Velasquez
In Velasquez, supra, 211 Cal.App.4th 1170, the defendant was convicted of five counts of assault with a firearm. The defendant was in a vehicle and fired approximately ten shots at a residence as the vehicle drove by it one time. One shot went into the garage, where "Maria" had been sleeping. The five assault counts were based on Maria and the other four family members who were in different places around the house and property at the time of the shooting. (Id. at pp. 1172-1174.) The jury was instructed with CALCRIM No. 875, that the offense was committed if the defendant did an act with a firearm that by its nature would directly and probably result in the application of force " 'to a person,' " and the defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force " 'to someone.' " (Id. at p. 1176, italics in original.)
On appeal, the defendant argued that since the instruction "referred to application of force to a person or to someone, the jury could have believed that if any member of the family was at risk of injury, then the People adequately proved each count of assault." (Velasquez, supra, 211 Cal.App.3d at p. 1176, italics in original.) The defendant argued that while Maria was at risk because of her presence in the garage where the bullet was aimed, the jury could have convicted him of the other four counts "without considering whether his act of shooting at the residence would directly and probably result in the application of force to the victim named in each count." (Ibid.)
Velasquez agreed that the instruction was potentially confusing under the circumstances.
"One cannot assault John Doe, when the defendant aimed at Tom Smith, if John Doe was standing hundreds of feet behind the defendant when the defendant shot the firearm (assuming the defendant's aim was reasonably accurate, but did not result in injury to Tom Smith). Tom Smith was the victim of an assault because the act in this hypothetical would directly and probably result in application of force to him. But John Doe, who was hundreds of feet away in the opposite direction, unthreatened and unharmed, was not a victim of assault because the defendant did not commit an act that 'by its nature would directly and probably result in application of force' to John Doe." (Velasquez, supra, 211 Cal.App.4th at pp. 1176-1177.)
Velasquez held that based on the facts, the jury could have determined that when defendant fired at the garage, and the result was the direct and probable application of force only to Maria, who was in the garage; and the other people were not in danger of being hit based on their different locations. (Velasquez, supra, 211 Cal.App.4th at p. 1177.)
"Nonetheless, by following the letter of the instruction, the jury may have found [defendant] guilty of assaulting the other four individuals because firing the shots resulted in a direct and probable application of force to a person (Maria). If so, [defendant] was convicted of four counts of assault, even though the prosecution failed to prove beyond a reasonable doubt the elements of the offense." (Ibid., italics in original, fn. omitted.)Velasquez held the instructional error was prejudicial and reversed the four counts.
Velasquez thus held that the named victim must have been subject to the application of force; it did not change the well-established rule that a defendant charged with assault had to have the specific intent to injure the named victim. (Williams, supra, 26 Cal.4th at p. 788.)
B. Procedural Background and Instructions
As explained above, the jury deliberated over eight counts of assault with a firearm on a peace officer. The amended information, which was read to the jury, identified a specific officer for each count: the two Ridgecrest officers who initially conducted the welfare check; and the six members of the sheriff's department who responded with the SWAT team.
The court instructed the jury with CALCRIM No. 860 on the elements of the eight assault counts:
"The defendant is charged in Counts 2 through 9 with assault with a firearm on a peace officer .... [¶]
"To prove that the defendant is guilty of this crime, the People must prove that:
"One; the defendant did an act with a firearm that, by its nature, would directly and probably result in the application of force to a person.
"Two, the defendant did that act willfully.
"Three, when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act, by its nature, would directly and probably result in the application of force to someone.
"Four, when the defendant acted, he had the present ability to apply force by using a firearm to a person.
"Five, when the defendant acted, the person assaulted was lawfully performing his duties as a peace officer.
"And, six; when the defendant acted, he knew or reasonably should have known, that the person assaulted was a peace officer who was performing his duties. (Italics added.)
The instructions did not specify each victim, and defendant did not object to CALCRIM No. 860.
In contrast to the instructions, the verdict form for each count specified the officer identified in the amended information as the victim in that count.
In closing argument, the prosecutor explained that defendant fired a series of gunshots after Officers Clinton and Bell identified themselves and tried to talk to defendant. The prosecutor pointed to the evidence that separate sets of gunshots were fired at the positions taken by the deputies with the SWAT team, and there were some "very near misses."
Defendant was convicted of four assault counts; the verdict forms specified that he was guilty of assault by a firearm on a peace officer based on Officers Bell and Clinton, and Sergeant Starr and Deputy Booker; he was found not guilty of assault on the other four named deputies on the SWAT team.
C. Analysis
Defendant contends that as in Velasquez, CALCRIM No. 860 erroneously permitted the jury to convict him of multiple assault counts if the jury found that an act would directly and probably result in an application of force "to any of the victims," without specifying each victim alleged in the amended information. (Italics in original.)
We first note that defendant did not object to the instruction. Even assuming defendant preserved review of the issue, " '[a] defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.]" (People v. Solomon (2010) 49 Cal.4th 792, 822.)
The underlying facts in this case are vastly different from the situation in Velasquez, which involved a single act of shooting into a residence occupied by five people. In contrast, this case involved multiple instances where defendant fired separate and distinct volleys of gunshots that corresponded to the different positions taken by the law enforcement officers. The initial set of gunshots was fired immediately after Officers Clinton and Bell identified themselves and tried to convince him to walk out of the trailer. Defendant fired additional gunshots as Clinton and Bell tried to retreat from the trailer.
Deputy Booker was directly across from defendant's trailer. As he tried to remove the lawn ornament that obstructed his view, he heard gunshots, saw bullets hit the ground, and the dirt "explode[d]" five to ten feet in front of him.
Sergeant Starr was located in a different position, and there were two separate volleys of shots fired from the trailer, of four to six rounds each. During the first set of shots, Starr saw dirt flying in the area directly in front of him. A few minutes later, there was another set of shots and Starr heard "the hisses and pops of the bullets," which meant the bullets were "incredibly close" to him.
While the instruction did not separately identify each victim, the amended information and the verdict forms specified which count applied to which victim. The jury's verdicts indicated that it closely followed those specifications since it found defendant not guilty of the assault charges based on officers who were not directly in the line of fire. Based on the record, there is no reasonable likelihood the jury would have been confused by CALCRIM No. 860.
III. Senate Bill 620
We granted defendant's petition for rehearing to address his contention that the matter must be remanded for the court to consider whether it should strike the section 12022.53 firearm enhancement, based on the recent legislative amendment to that statute.
As set forth above, the court imposed firearm enhancements in this case based on section 12022.53, subdivision (c).
At the time of the sentencing hearing in this case, imposition of an enhancement under section 12022.53 was mandatory, and it could not be stricken in the interest of justice pursuant to section 1385 or any other provision of law. (People v. Felix (2003) 108 Cal.App.4th 994, 999; People v. Sinclair (2008) 166 Cal.App.4th 848, 852-853; People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363.)
On October 11, 2017, the Governor signed Senate Bill 620, effective January 1, 2018. (Stats. 2017, c. 682 (S.B. 620), § 2.) As relevant to this case, Senate Bill 620 amends section 12022.53, subdivision (h) to give discretion to the trial court to strike a firearm enhancement in the interest of justice. Subdivision (h) now states:
"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Defendant argues Senate Bill 620's amendment to section 12022.53 applies herein because his case is not yet final on appeal, and on remand the court must consider whether to exercise its discretion to strike the enhancement under the newly-enacted version of section 12022.53, subdivision (h).
Both defendant and the People agree that Senate Bill 620's amendment to section 12022.53, subdivision (h) applies retroactively to cases not yet final on appeal. (In re Estrada (1965) 63 Cal.2d 740, 746; People v. Francis (1969) 71 Cal.2d 66, 75-76; People v. Brown (2012) 54 Cal.4th 314, 323.) The parties disagree as to whether the matter should be remanded.
The People argue that remand is unnecessary and "would constitute an idle act in that any order striking a prior serious or violent felony conviction would constitute an abuse of the trial court's discretion" in light of the egregious facts of this case. (People v. Askey (1996) 49 Cal.App.4th 381, 389.)
Defendant's conduct of repeatedly firing multiple shots at officers who were attempting to defuse the situation presents an egregious situation. As set forth above, however, the court made several statements at the sentencing hearing that while the jury's verdict was reflective of the evidence, this was a "tough case" because defendant had been a "great asset" to the community. "I did look carefully into whether or not there would be some appropriate factor to consider to place you on a probationary sentence, and I just don't see it here based on the evidence and the law and the sentencing scheme. And so I'm not going to sentence you to probation."
While the trial court made findings as to the exercise of its discretion when it imposed the sentence, it did not have discretion to strike the section 12022.53, subdivision (d) enhancement, and it did not address or consider whether imposition of the enhancement under the facts and circumstances of this case would be in furtherance of justice pursuant to section 1385.
"Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.]" (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
The court was statutorily prohibited from considering whether to exercise its discretion when it imposed the section 12022.53 enhancement, and made no discretionary sentencing findings that would eliminate the need for a remand in this case.
We therefore conclude that the matter must be remanded for the court to determine whether to exercise its new statutory discretion to strike the firearm enhancement in this case under section 12022.53, subdivision (h). By remanding the matter, we do not find that the court must strike the enhancement, but only that the court must consider whether to exercise its discretion pursuant to the newly-enacted provisions of section 12022.53, subdivision (h).
DISPOSITION
The matter is remanded for the court to determine whether to exercise its discretion pursuant to section 12022.53, subdivision (h).
In all other respects, the judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
BLACK, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.