Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BLF003311. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
George O. Benton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, William M. Wood, and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Defendant Arthur Ray Deere, Sr., appeals his conviction for attempted murder and other offenses. He contends that the court committed reversible error when it denied his motion for acquittal, arguing that there was insufficient credible evidence that he harbored the intent to kill, and that it committed reversible instructional error pertaining to specific intent as well.
We affirmed the judgment in our original opinion in this case. (People v. Deere (Feb. 27, 2009, E044300 [nonpub. opn.].) The California Supreme Court granted defendant’s petition for review and transferred the cause to us, with the following directions: to vacate our judgment and modify the opinion “to reflect the sentence as imposed by the trial court” and to remand the matter to the trial court with directions to “amend the abstract of judgment and the minute order of sentencing to reflect the actual sentence imposed.” (People v. Deere, review granted May 13, 2009, S171773.) Accordingly, we vacate our original opinion. Because the Supreme Court did not address any of the issues decided in our original opinion, the opinion remains effective with respect to those issues. (Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 709, fn. 12.) Below, we restate the original opinion, with the modifications directed by the California Supreme Court.
PROCEDURAL HISTORY
Defendant was charged with one count of deliberate, premeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a); count I); assault with a firearm (§ 245, subd. (a)(2); count II); possession of a firearm by a felon (§ 12021, subd. (a); count III); and possession of stolen property (§ 496, subd. (a); count IV). In connection with the attempted murder charge, the information alleged that defendant personally used a firearm and intentionally discharged a firearm. (§§ 1192.7, subd. (c)(8), 1203.06, subd. (a)(1), 12022.53, subd. (c), 12022.5, subd. (a).) (An additional firearm use allegation, under section 12022.53, subdivision (e)(1), was stricken on motion of the prosecutor.) As to the assault charge, the information alleged that defendant personally used a firearm. (§§ 1192.7, subd. (c)(8), 12022.5, subd. (a).) Finally, the information alleged that defendant had three prior serious felony convictions and three prior strike convictions. (§§ 667, subds. (a), (c), (e)(1), 1170.12, subd. (c)(1).)
All statutory citations refer to the Penal Code.
Defendant admitted the prior conviction element as to count III, and the court struck the firearm use allegation under section 12022.5, subdivision (a) as to count I. The jury convicted defendant on all counts, but deadlocked on the deliberation and premeditation allegation. A mistrial was declared as to that allegation, and it was later dismissed. The jury also found the firearm allegations true as to counts I and II. In a bifurcated trial, the court found the prior conviction allegations true. The court sentenced defendant to a term of “77 years to life.”
We discuss the sentence below.
Defendant filed a timely notice of appeal.
FACTS
For purposes of the charge of unlawful possession of a firearm, defendant stipulated that he had a prior felony conviction. On October 13, 2004, at the time of the incident which resulted in his current conviction, defendant was in possession of items stolen in a residential burglary which was committed the day before. On the night of October 13, 2004, defendant was riding in a car when he realized that the police were following the vehicle. He had been told by a family member that the police had raided his mother’s house a day or so earlier, and he had “been running ever since.” He was armed with a.22-caliber pistol “for protection.” His goal was not to get caught, “[w]hatever it cost.”
The quoted material in this paragraph is derived from defendant’s interview with police after his arrest, as described by the officer who conducted the interview.
Defendant ordered the driver to stop the car. He removed the gun from his waistband and removed the safety. He got out of the car and ran into an alfalfa field. Riverside Sheriff’s Deputy Phipps, who had stopped the vehicle, tracked defendant with his spotlight as he ran into the field. He saw defendant fall, but did not hear defendant’s gun discharge. Phipps learned defendant’s name from the driver. He recognized the name as that of a person wanted for a parole violation and as a burglary suspect. Phipps radioed for assistance in setting up a perimeter around the field.
These events took place in a county area near Blythe.
In his subsequent in-custody interview, defendant said that his gun discharged when he tripped and fell.
Other sheriff’s units arrived within the next few minutes. Sergeant Miller, who had responded to the call, called for a border patrol canine unit to assist in locating defendant. Border Patrol Agent Supervisor Altamirano responded with his dog. Altamirano and the dog went into the field, with Miller following as backup. After jogging a few steps into the field, Altamirano heard a gunshot, which sounded close. He dropped to the ground and shouted, “Shots fired.” Miller heard the shot and saw a horizontal muzzle flash in the direction of Altamirano. Miller broadcast that a shot had been fired, and shouted commands for the shooter to surrender. Miller then approached the location from which the muzzle flash had emanated and discovered defendant lying prone with his arms outstretched. As Miller was handcuffing defendant, he saw a.22-caliber pistol on the ground a few feet from defendant’s left hand. Defendant was 10 to 20 feet from where Altamirano had been when the shot was fired. At the time the shot was fired, Altamirano was silhouetted in the lights of Miller’s vehicle, making him an easy target for someone in defendant’s position.
The pistol’s safety was off when it was retrieved from the field. The pistol had nine rounds in its 10-round magazine. An expended shell was in the firing chamber, which indicated that the gun had jammed when it was fired. It could not fire again until the jam was cleared.
LEGAL ANALYSIS
DEFENDANT’S MOTION FOR ACQUITTAL WAS PROPERLY DENIED
The purpose of a motion for acquittal, under section 1118.1, is to “‘weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case.’ [Citations.]” (People v. Stevens (2007) 41 Cal.4th 182, 200.) In ruling on the motion, the trial court must determine whether there is sufficient evidence to present the matter to the jury. (Ibid.) We review the issue de novo. (Ibid.) The trial court and the reviewing court apply the same standard, “‘that is, “whether from the evidence, including all reasonable inferences to be drawn there from, there is any substantial evidence of the existence of each element of the offense charged.”’ [Citation.]” (Ibid.)
Defendant argues that the trial court appeared not to understand that the evidence must be sufficient to support the necessary factual findings beyond a reasonable doubt. Because we review the sufficiency of the evidence independently, we are not concerned with the basis for the trial court’s ruling.
Defendant contends that the court was required to grant his motion for acquittal because the testimony of Sergeant Miller and Agent Altamirano was insufficient to establish beyond a reasonable doubt that defendant knew where Altamirano was standing when he fired the shot or that the shot was actually fired in Altamirano’s direction. He carefully parses their testimony and demonstrates that neither man could say with certainty the direction in which the shot was fired. He concludes by saying that “[T]he best prosecution evidence is as consistent with the inference that [the shot] was [fired] by chance, with the intent to scare off or distract his pursuers, as with the inference that he intended to kill.” That sentence alone is sufficient to demonstrate the flaw in the argument. Substantial evidence review requires us to view the evidence as a whole, in the light most favorable to the judgment, and to draw all reasonable inferences which could be drawn in support of the judgment. (People v. Smith (2005) 37 Cal.4th 733, 742 (Smith).) We do not weigh the evidence or determine which one of multiple conflicting inferences is stronger or more credible. Rather, if one of several inferences supported by the evidence would suffice to support a guilty verdict, we must uphold the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Because defendant concedes that one possible inference supported by the evidence is that he acted with the intent to kill, we need not address his argument. Nevertheless, we will briefly discuss the evidence which supports the inference that defendant intended to kill.
Intent to kill may be inferred “from all the circumstances of the attempt, including the putative killer’s actions and words.” (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946; see also Smith, supra, 37 Cal.4th at pp. 740-742.) Defendant was a convicted felon. He had in his possession property which was stolen from a residence the day before. He knew that his mother’s house had been “raided” the day before, and when he realized that the car in which he was riding was about to be stopped by Deputy Phipps, he took his gun from his waistband and removed the safety. He stated that his sole goal was to avoid being caught “[w]hatever it cost.” His freedom and safety were all that mattered to him; everything else was irrelevant. He said that if the police fired at him, “it would have been a free-for-all” and that he would have “shot dead-on, even though it was the cops.” He said that “once you get to a point, you might as well say fuck it,” and that that night, he did say “fuck it.” He said that when Miller fired at him, he was “mad as a mother fucker” and that if his gun hadn’t jammed, “it would have been on” and that he would have fired toward the sound of the shots. These actions, words and circumstances reasonably support the conclusion that defendant acted with the intent to kill.
Defendant contends that other statements he made after his arrest support the inference that he did not intend to kill. He points to his statements that he did not want to be the aggressor and did not want to ambush the officers, that he did not see Altamirano and that he did not shoot at the “cops.” The jury is not, however, required to accept or reject a witness’s statements in their entirety; it may believe some statements while rejecting others. (People v. Wickersham (1982) 32 Cal.3d 307, 328, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 201.) Defendant also asserted that his gun discharged accidentally when he fell and that when he was lying on the ground knowing the dogs and the officers were coming, he fired two shots into the ground to “distract” them, hoping it would buy him time to escape. These statements were belied by the physical evidence, which showed that defendant’s gun was fired only once: Only one bullet was missing from the 10-round magazine, and that bullet was lodged in the firing chamber. The gun could not be fired again until the jammed bullet was removed. This is consistent with the testimony of Deputy Phipps, who saw defendant fall but did not hear a shot fired at that time, and with the testimony of Miller and Altamirano, each of whom heard only a single shot when they were approaching defendant’s location in the field. Defendant’s demonstrably false statements could reasonably cause jurors to conclude that defendant was also lying about not having shot at Altamirano and that in fact he did fire the single shot toward where he believed Altamirano was.
Taken all together, the evidence permits the inference that defendant actually shot at Altamirano with the intention to kill in order to facilitate the only outcome that was acceptable to him: to escape capture. Defendant’s statements that his freedom and safety were all that mattered, that everything else was irrelevant, and that he just said “fuck it” (which inferably indicates indifference to the consequences of his efforts to avoid capture and suggests that he was willing to kill to achieve that goal) all support the inference that despite his claims to the contrary, defendant shot at the officer with the intent to kill. That other inferences are possible is irrelevant. (People v. Bean, supra, 46 Cal.3d at pp. 932-933.)
Defendant also appears to argue that the evidence was insufficient as a matter of law to support a finding that he acted with the intent to kill. Citing People v. Ratliff (1986) 41 Cal.3d 675, 695, he asserts that the intent to kill cannot be presumed from the aiming and firing of a gun. We agree that the act of aiming and firing a gun is not necessarily sufficient, as a matter of law, to compel the conclusion that the defendant intended to kill, which is what we understand the court to be saying in People v. Ratliff, supra, at page 695. Additional circumstances supported by the evidence may, however, permit that conclusion. As the California Supreme Court discussed more fully in Smith, supra, 37 Cal.4th 733, intent to kill is often inferred from all of the circumstances of the crime. (Id. at pp. 740-742.) In Smith, the court stated that firing at a victim at close range in a manner that could have resulted in a mortal wound if the bullet had been on target is sufficient to support the inference that the defendant acted with the intent to kill. (Id. at p. 741, quoting People v. Lashley, supra, 1 Cal.App.4th at p. 945, and People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) In this case, as we have discussed, there was additional evidence which, taken all together, supports the conclusion that defendant shot toward Altamirano’s position with the intent to kill him.
We also note that the fact that the evidence suggests that defendant did not actually see Altamirano does not render the evidence insufficient to support the conclusion that he shot with the intent to kill. Defendant stated that just before he fired—into the ground, as he described it—he could hear people walking toward him and talking, and that he knew “it was the cops.” Jurors could reasonably infer that he shot in the direction of the voices, or one of them, with the hope that the bullet would find and kill one of the targets.
Because the evidence reasonably supports the inference that defendant intended to kill when he fired the shot described by Altamirano and Miller, the court did not err by denying the motion for acquittal.
THE COURT ADEQUATELY ADDRESSED QUESTIONS POSED BY THE JURY
Defendant contends that the court failed to respond adequately to a question from the jury concerning whether intent is automatically inferred from the act of firing at an officer. He contends that the court’s response effectively allowed jurors to conclude that a conclusive presumption of intent to kill arises from the act of aiming and firing a gun. The Attorney General responds that the jury’s question was factual in nature and that the court’s response was appropriate.
The issue arose as follows. During deliberations, the jury requested “clarification on ‘intent.’” The court responded in writing, directing the jury to several pertinent jury instructions. Later the same day, the jury asked, “If an action is a ‘rash response’ can it still be considered ‘intent?’”
For some reason, it omitted reference to CALCRIM No. 225, which discusses proof of intent by means of circumstantial evidence.
The court perceived the question as a factual one, rather than a legal one. Defense counsel did not disagree. The court had the jury return to the courtroom. After some colloquy which is not pertinent to the issue before us, the court addressed the jury’s concerns about “rashness” and intent:
“Juror No. 12: I think it’s more of the rash, [sic] meaning the time frame involved in making that decision and the sequence of events. Was it spur of the moment? I think as far as rash, that part of the consideration would be the time. Split second? Or two minutes? And you know what I mean.
“The Court: Okay. That [is] covered in the instruction... on deliberation and premeditation.... [¶]... [¶]
“The Foreperson: Your honor, we had a question about intent being in the count itself, and then premeditation, deliberation being in right underneath it in the next section.
“The Court: Yes.
“The Foreperson: So we didn’t understand the relationship between... deliberation, premeditation as it relates to intent; we didn’t know... what that connection was.
“The Court: Well, any attempted murder requires a specific intent to kill. And all crimes, for our purposes, require an action and an intent. So at the time of the action, there has to be an intent as defined by the law. So that’s one question. [¶] So if... a juror, for example, said, okay, there was an action; to wit: aiming a gun and pulling the trigger, and at that time, whomever it might have been, intended... another person to die, in other words, I intend to kill that person, that’s one issue. [¶] And... don’t read anything into what I’m saying. Okay. ‘Cause... I am not making any findings on facts. [¶] But if... a juror said, okay, there was an intent, then and only then do you go to the next question as to whether or not there was premeditation and deliberation.”
After some further discussion of premeditation and deliberation, which is not pertinent to our issue, the foreperson asked, “[W]hat we are stuck on is, if you fire at an officer, does that automatically mean intent? [¶]... [¶] How could you not have intent, is where we’re stuck. [¶]... [¶] You can’t answer that, can you?” The court replied, “No. I could give you lots of answers, and they would all create a problem.” The foreperson responded, “Yeah, we were hoping you could just solve ours.” The court responded by saying that the jury takes care of all factual issues, while the court takes care of the legal issues. After some discussion off the record, the court had the jury return to the jury room for further deliberations. Following this colloquy, the court asked if counsel had any comment. Defense counsel had none.
Section 1138 imposes upon the trial court a duty to provide the jury “with information the jury desires on points of law.” (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.) On the other hand, the court may not provide direction as to how the jury should decide questions of fact if by doing so it “‘“usurp[s] the jury’s exclusive function as the arbiter of questions of fact and the credibility of witnesses.” [Citation.]’ [Citation.]” (People v. Sanders (1995) 11 Cal.4th 475, 531.) Although the court “has a primary duty to help the jury understand the legal principles it is asked to apply,” the court has discretion under section 1138 to determine what additional explanation, if any, will be sufficient to satisfy the jury’s request for information. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Thus, while the court necessarily abuses its discretion if it fails to consider giving a further explanation in response to a jury question, it need not elaborate on the standard instructions if it considers the request and concludes that the instructions adequately convey the information the jury is seeking. (Ibid.)
Although the thrust of the foreperson’s two questions is not all together clear, the first question certainly appears to ask, as defendant contends, whether the law required it find intent to kill from the bare fact of firing a gun at an officer. However, the question “How could you not have intent” under those circumstances appears to indicate, as the Attorney General asserts, that some jurors, at least, believed as a factual matter that a person who takes aim at another person and fires does intend to kill. While we agree with defendant that ideally the court should have responded to the implicit legal question by telling the jury that it was not required, as a matter of law, to find the existence of intent to kill from the bare facts that defendant shot at the officer (assuming that the jury did find that he intentionally shot at the officer), we do not agree that by failing to do so, the court left the jury with the erroneous impression that such a conclusion was compelled by operation of law.
In reviewing a claim of instructional error, we consider the jury instructions as a whole, and we consider each instruction in the context of the entire charge to the jury. (People v. Haskett (1990) 52 Cal.3d 210, 235; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) We will reverse a conviction only if there is a reasonable likelihood that, in the context of the instructions as a whole, the jury understood the court’s explanation as the defendant asserts. (People v. Kelly (1992) 1 Cal.4th 495, 525-526.) Here, during the same colloquy in which the foreperson asked the questions which are at issue, the court had explained to the jury that before addressing the question of deliberation and premeditation, the jury must first decide if the shooter had the intent to kill when he aimed the gun and pulled the trigger. The court explained that only if the jury found that there was such an intent would it go on to determine whether the shooting was deliberate and premeditated. Then, in response to the question at issue on appeal, the court reiterated that intent is a factual question which was solely up to the jury to determine. Under the circumstances, we conclude that the court’s response was adequate to dispel any notion the jurors might have that they were compelled to reach any particular conclusion on the issue of intent as a matter of law, and that there is no reasonable probability that any of the jurors were left with the impression that they were required to reach any particular conclusion. Accordingly, reversal of defendant’s conviction is not required. (Ibid.)
Because we have concluded that the instructions and the court’s explanation adequately informed the jury of the standards it was to apply to determine whether defendant acted with the specific intent to kill, we reject defendant’s contention that his trial attorney’s failure to request an additional explanation or clarification constituted ineffective assistance of counsel.
In Strickland v. Washington (1984) 466 U.S. 668, the United States Supreme Court held that a criminal defendant has a constitutional right to the effective assistance of trial counsel. To prevail on a claim of ineffective assistance, the defendant must show that his attorney failed to act in a manner within the range of competence demanded of attorneys in criminal cases and that the defendant was prejudiced by counsel’s act or omission. (Id. at pp. 687-688.) To establish prejudice, the defendant must show a reasonable probability that the outcome of the trial would have been more favorable in absence of the error or omission. (Id. at p. 694.) Because both prongs are necessary to finding that the defendant was deprived of his constitutional right to effective assistance of trial counsel, a claim of ineffective assistance of counsel may be rejected if the defendant fails to establish prejudice, without regard to whether counsel’s performance met objective standards of competence. (Id. at p. 697.) The same standard applies under the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
CORRECTION OF THE ABSTRACT OF JUDGMENT AND SENTENCING MINUTES
As noted above, the California Supreme Court has directed us to remand the matter to the trial court with directions to amend the abstract of judgment and the sentencing minutes to reflect the sentence as imposed by the trial court.
The trial court imposed sentence on count I as follows:
“Count I, Mr. Deere was convicted of attempted murder without premeditation and deliberation. And the three... determinate terms are 5, 7 and 9. And the... greatest calculation for the minimum term would be under option 3 of 667.2(a) [sic]. It is easy to get to the upper term because of his prior history. But I think the midterm is appropriate. [¶]... [¶] You add to that 7 years, 20 years for the discharge of the firearm, and to that you add 15 years for three prior serious felonies. That comes out to 42 years. The term is life, minimum [42], plus 20 years for the gun. Again that is doubled, plus 15 for three serious priors. That is added again, and that comes out to what-- is that 77 years? [¶]... [¶] On count I the term is life with 42 years minimum, plus 20 for the gun discharge and plus 15 for the three 5-year prior[s]; 77 years to life.”
We assume the court intended to cite section 667, subdivision (e)(2)(A), which provides:
The sentencing minutes and the abstract of judgment state that the sentence on count I is seven years to life with a consecutive term of 40 years to life for the gun use enhancement, plus a term of 10 years for each of the three prior serious felony convictions. This is incorrect. Pursuant to section 667, subdivision (e)(2)(A)(iii), the court imposed an indeterminate term of life imprisonment with a minimum term of 42 years, consisting of the aggregate of the seven-year middle term for unpremeditated attempted murder, the 20-year enhancement for discharging a firearm (§ 12022.53, subd. (c)), and the three 5-year terms for the prior serious felony enhancements. The court further imposed a determinate term of 20 years for the section 12022.53 enhancement and three determinate terms of five years each for the prior serious felony convictions. Although the court orally referred to “doubling” the enhancements, we understand it to mean that it was using the enhancements both to calculate the minimum term of the indeterminate life term, as provided for in section 667, subdivision (e)(2)(A)(iii), and to impose separate determinate terms for the enhancements. (See People v. Williams (2004) 34 Cal.4th 397, 401-405.)The abstract of judgment and the sentencing minutes must be corrected to reflect this sentence. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187; People v. Mesa (1975) 14 Cal.3d 466, 471.) They must also be corrected to delete the statement that defendant is sentenced to state prison for a total indeterminate term of “77 years to life.” Enhancements pursuant to section 667, subdivision (a)(1) and section 12022.53 must be imposed consecutive to the sentence for the substantive offense. (§ 667, subd. (a)(1); § 12022.53, subd. (c).) The determinate term imposed for any sentence enhancement must be served before any consecutively-imposed life sentence. (§ 669.) Consequently, the correctly-stated sentence in this case is a determinate term of 35 years followed by a consecutive life term with a minimum term of 42 years. (See People v. Williams, supra, at p. 401, fn. 3.)
On count II, the court imposed a term of 25 years to life, plus a four-year term for the use of a firearm pursuant to section 12022.5, subdivision (a). The court stayed imposition of sentence on count II pursuant to section 654. The sentencing minutes incorrectly state that the court imposed a consecutive term of 25 years to life for the gun use enhancement on count II; this too must be corrected. (The abstract of judgment correctly shows that a gun-use enhancement on count II was stayed; it does not state the length of the term.) In its oral pronouncement of judgment on count II, the court also stated that “the 15 years gets added to that also,” presumably meaning the 15 years for the three prior serious felony enhancements. Prior serious felony enhancements are added to the sentence imposed on each count which is subject to the three strikes law. (People v. Williams, supra, 34 Cal.4th at pp. 401-405.) The sentencing minutes and the abstract of judgment must be corrected to reflect that these enhancements were imposed on count II and stayed pursuant to section 654.
The court orally imposed terms of 25 years to life on counts III and IV and made them both concurrent. These sentences are correctly stated in the abstract of judgment and in the sentencing minutes.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and corrected sentencing minutes that conform to our directions as stated above, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: Ramirez, P.J., King J.
“If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. [¶] (ii) Imprisonment in the state prison for 25 years. [¶] (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.”