Opinion
A128415
12-29-2011
THE PEOPLE, Plaintiff and Respondent, v. SHANNON LEE EDMONDS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Lake County Super. Ct. No. CR918949
Defendant Shannon Lee Edmonds was found guilty by a jury of second degree murder (Pen Code, § 187 ) and two counts of assault with a deadly weapon that involved the personal infliction of great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a)). All charges related to a single incident and victim. The trial court sentenced defendant to state prison for a total term of 15 years to life. On each of the assault convictions, the court imposed a term of seven years (base term of four years, plus three years for the great bodily injury enhancement), both terms to be served concurrently with the 15-years-to-life-term for the murder.
Statutory references are to the Penal Code.
Defendant contends that reversible error occurred when the trial court instructed the jury on the principles of accomplice testimony and credibility. We conclude that, while the instruction as given has an inartful phrasing, its essential points were comprehensible to a reasonable jury. By reason of this conclusion, we do not address defendant's contention that his trial counsel was constitutionally incompetent because he did not request that the instruction be modified.
Defendant also raises a number of claims of sentencing error. We conclude that all of these contentions are without merit. However, defendant does identify a minor clerical error on the abstract of judgment that we order corrected. Apart from that, we affirm the judgment in its entirety.
BACKGROUND
Shortly after midnight on September 22, 2009, Shelby Uehling bled to death, under a tree, in a vacant lot near Clearlake. His death followed a fight with defendant and Melvin Norton. Defendant does not challenge the sufficiency of the evidence to support the jury's verdicts. Viewed most favorably to the prosecution, the evidence included the following which, in one sense, all goes back to Patricia Campbell.
Norton was tried with defendant on the same charges, plus an additional count of being an accessory after the fact (§ 32). Norton was acquitted of the murder, and convicted only on the accessory count and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)).
Norton knew Campbell from the time she was five years old. He and Campbell were so close that they called themselves cousins. It was Norton who introduced Campbell to defendant. In June 2009, Campbell began living with defendant in his motor home, which was next door to her mother's home at the Lakeside Resort. After about two months, Campbell left defendant and moved back in with her mother. It was about that time that Campbell met Shelby Uehling.
The tie between Campbell and Uehling appears to have been their common passion for methamphetamine, which Uehling provided. After a six-day, meth-fueled bender with Uehling, Campbell moved back in with defendant, and now considered defendant her true love. This was only two or three days before Uehling died.
After Campbell left him, Uehling tried to re-establish contact. He came to her mother's home and banged on the windows, demanding that Campbell come out and talk to him. Defendant and Norton, who knew that Campbell was scared of Uehling, confronted Uehling and told him to leave. Uehling did so, grudgingly. Norton fended off repeated telephone attempts by Uehling to speak with Campbell. Eventually, Campbell sent Uehling a text message to "Fuck off, lose my number and stay away from my family." Campbell, defendant, and Norton treated Uehling's attentions to Campbell as stalking. But Campbell admitted she might not have made it clear to Uehling that she wanted to terminate their relationship.
Defendant commonly carried a knife, and he owned an "ASP baton." At some point he sent Uehling this text message: "Better hide from me when I see you . . . . I know a lot of bad people in this town."
The ASP baton was described by one police officer as an "impact device," that is, an instrument "used to impact somebody to gain compliance of the subject." This officer described it as an instrument that "with a flick of the wrist" extends in length. It has a rounded metal tip "that you can gain the most impact onto the subject with." The prosecutor called it a telescoping or "expanding kind of billy club." The trial court simply called it a "club.'
On the afternoon of September 22, Norton, Campbell, and defendant were barbecuing at defendant's home. Norton intercepted a telephone call from Uehling intended for Campbell. Defendant was present during the call. Norton told Uehling that Campbell did not want to see him. Uehling responded with much cursing, but he eventually hung up.
When Norton returned home from the barbecue shortly after midnight, he observed Uehling's car, the motor running, near Norton's driveway. Norton testified that, accompanied by defendant, he confronted Uehling in the car. Amid much cursing, Norton told Uehling to get out of the car. Still belligerent, Uehling got into a shoving match with Norton. Norton took no part in the ensuing fight. Defendant did not have the ASP. When the fight ended, Norton and defendant returned to Norton's home. Norton had no idea Uehling was seriously hurt. Norton did see defendant washing his knife. However, on cross-examination, Norton admitted that defendant had told him Uehling was dead.
Norton's girlfriend testified that she heard him speaking with someone on the telephone. After Norton stated, "He's up at the top of the hill," he left. He returned in about 20 minutes, accompanied by defendant. He and defendant changed their clothes, which were soaked in Uehling's blood, and hid them in plastic bags under the bed. Norton told his girlfriend, "Don't worry, we didn't stab anybody."
Defendant's version was that he was home in bed with Campbell when Norton telephoned and told him of Uehling's idling car. Defendant got dressed and headed towards Norton's home. He saw Norton talking to someone in the car. While Norton and Uehling were engaged in the shoving match, Uehling was screaming. Defendant saw Uehling "grab something from . . . the waistband of his pants." Thinking Uehling was reaching for a weapon, but without drawing his own knife, defendant interposed himself between Norton and Uehling, and "just started swinging" at Uehling.
Defendant testified that after blows were exchanged, Uehling "pulled something out of his waistband and . . . lung[ed] at me . . . . And I just remember a really, really sharp pain in my forearm." "[T]errified that I was going to be killed," defendant pulled out his own knife. Defendant did not recall the particulars of what then happened, and thus "I don't specifically recall stabbing him." After washing up at Norton's, where his knife and bloody pants were put in a bag, he returned home.
The fight in which Uehling died was partially overheard by two nearby residents. One heard loud yelling that escalated into screaming, like someone was dying, and the sounds of "adult fighting . . . progressively getting worse." The other heard male voices "beating up some guy" who was "kind of pleading." He thought he heard the sounds of a body being kicked. After he heard other voices say "I cut his throat" and "We got to go," he called 911. As he was doing so, he heard the man who pleaded "made a gasp." This second man saw two men crouching over a body leaning against a tree. The pair then ran away.
Uehling died from a cut carotid artery. He also had what the coroner described as a "fairly significant" cut wound to the back that penetrated the right lung. There were less serious "slice" injuries to the back, abdomen, buttocks, left thigh, and left arm. Uehling also had blunt force damage to his throat that could have been caused by the ASP baton. The coroner described Uehling's body as having blunt force injuries "almost . . . from top to bottom" that would be consistent with a severe kicking.
When first questioned by police on the morning of September 22, defendant denied meeting with Uehling that day. Later that same day, when officers first entered Norton's home, they noticed a pair of shoes "covered in what appeared to be blood." Norton said the shoes belonged to defendant. Defendant and Norton were taken into custody and formally interviewed that same day. Initially, defendant still claimed to know nothing about Uehling's death, and have no involvement in it, but he quickly admitted that "I stabbed him." A search of Norton's home found the bloody clothes, defendant's knife, and his ASP hidden in the bed.
The interviews were recorded on CDs which were played for the jury.
However, at the trial the most defendant would concede was "Apparently I injured him very badly and apparently he died."
REVIEW
Claimed Instructional Error
The jury was instructed with CALCRIM 334 as follows:
"Before you may consider the statement or testimony of Shannon Edmonds or Melvin Norton as evidence against the other defendant, you must decide whether Shannon Edmonds or Melvin Norton were accomplices. A person is an accomplice if he is subject to prosecution for the identical crime charged against the defendant.
"Someone is subject to prosecution if he personally committed the crime or if, one, he knew of the criminal purpose of the person who committed the crime; and two, he intended to and did, in fact, aid, facilitate, promote, encourage or instigate the commission of the crime or participate in a criminal conspiracy to commit the crime.
"The burden is on the defendant to prove that it is more likely than not that Shannon Edmonds and Melvin Norton were accomplices. An accomplice does not need to be present when the crime is committed. On the other hand, a person is not an accomplice just because he is present at the scene of a crime, even if he knows a crime is being committed and does nothing to stop it. If you decide that a declarant was not an accomplice then supporting evidence is not required and you should evaluate his statement as you would . . . that of any other witness.
"If you decide that a declarant was an accomplice, then you may not convict a defendant of Penal Code section 187(a) or Penal Code 245(a)(1) based on his statement alone. You may use the statement of an accomplice to convict the defendant only if, one, the accomplice's statement is supported by other evidence that you believe; two, the supporting evidence is independent of the accomplice's statement; and three, that supporting evidences tends to connect the defendant to the commission of the crime.
"Supporting evidence, however, may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the charged crimes and it does not need to support every fact mentioned by the accomplice in the statement. On the other hand, it is not enough if the supporting evidence merely shows a crime was committed or the circumstances of its commission.
"The supporting evidence must tend to connect the defendant to the commission of the crime. The evidence needed to support the statement of one accomplice cannot be provided by the statement of another accomplice. Any statement of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give the statement the weight you think it deserves after examining it with care and caution and in light of all the other evidence."
The jury was also instructed with CALCRIM 301 as follows:
"Except for the testimony of Shannon Edmonds and Melvin Norton, which requires supporting evidence, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence."
Defendant contends that CALCRIM 334 undermined and directly contradicted CALCRIM 301. The former instruction was "erroneous on its face and misstated the law because its requirement of corroboration unfairly singled out the defendants' testimony as suspicious and less deserving of belief than that of other witnesses," which error "lessened the prosecution's burden of proof and violated appellant's constitutional rights to due process and a fair trial, and to testify and present a defense, under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution."
The interplay between the principles expressed in these instructions has been previously examined. More than 20 years ago, considering the CALJIC antecedents of CALCRIM 334 and 301, our Supreme Court repeatedly held that what is now CALCRIM 301 states the general rule, while what is now CALCRIM 334 is an exception to it, a distinction readily understood by jurors. (See People v. Andrews (1989) 49 Cal.3d 200, 216-217 and decisions cited.) The issue there was whether the principle now expressed in CALCRIM 301 was undermined by failing to make explicit allowance for the necessity of accomplice corroboration. (Id. at p. 216; People v. Chavez (1985) 39 Cal.3d 823, 830-831.) The court noted the safeguards provided by other instructions: "[T]he jury was further instructed as to the kind of evidence necessary to constitute corroboration, the method of determining whether the accomplice's testimony was corroborated, and that an accomplice's testimony should be viewed with distrust." (People v. Chavez, supra, at p. 831.)
Although the issue here is the converse of the one previously considered, there is no reason why the same result does not obtain. Viewing the instructions in their entirety, as we must (People v. Smithey (1999) 20 Cal.4th 936, 963, 987; People v. Musslewhite (1998) 17 Cal.4th 1216, 1248), we think the jury was able to comprehend that CALCRIM 301 stated the general rule of witness credibility, and that CALCRIM 334 stated the exception to that rule for accomplice testimony. We acknowledge that the beginning words of CALCRIM 301 as given—"Except for the testimony of Shannon Edwards and Melvin Norton, which requires supporting evidence"—might on their face be read to suggest that all testimony from Edwards and Norton must be corroborated. However, on the other hand, that construction is neutralized by the opening words of CALCRIM 334—"Before you may consider the statement or testimony of Shannon Edwards or Melvin Norton as evidence against the other defendant . . . ." The italicized language told the jury that not all testimony by either Edwards or Norton was subject to the corroboration requirement, but only that testimony which was adverse to the other. The idea that the jury should impose an automatic requirement of corroboration is also refuted by the instruction advising the jury that "If you decide that a declarant was not an accomplice then supporting evidence is not required and you should evaluate his statement as you would . . . that of any other witness." And nothing in any of the closing arguments hints at an across-the-board requirement of corroboration for either defendant or Norton.
Norton challenged the wording of CALCRIM 334 on grounds different from that argued by defendant on this appeal. Although concluding that the instruction was "a correct statement of law for this case," the trial court did admit, "It's not the best worded instruction I've ever read."
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Moreover, as the Attorney General points out, defendant's claim that the instruction "unfairly singled out the defendants' testimony as suspicious and less deserving of belief than that of other witnesses" is contrary to considerable existing law. There is nothing unfair about treating the testimony of an accomplice with caution because he "has the motive, opportunity, and means to attempt to himself at the other's expense" regardless of whether the accomplice is also a codefendant. (People v. Alvarez (1996) 14 Cal.4th 155, 218.) Thus, the jury was not "given contradictory instructions both to distrust accomplice-defendant's testimony and to treat it like any other testimony." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 105, fn. 37.) Finally, the trial court did not decide as a matter of law that defendant and Norton were accomplices—even though they clearly met the test stated in the instruction—but left that decision to the jury. Had the court made that decision, it would have indeed "singled out the defendants" from other witness, but it would not have done so "unfairly." To the contrary, by leaving this option to the jury, the instructions may have given defendant precisely the advantage he now seeks, for if the jury concluded that defendant and Norton were not accomplices, the issue of corroboration would never arise.
Defendant's fallback argument is that his trial counsel's "failure to object to the court's instruction that the defendants' testimony required corroboration deprived appellant of his federal constitutional right to the effective assistance of counsel." The preceding discussion establishes that the instruction was substantially correct. Assuming, solely for purposes of defendant's argument, that had his trial counsel secured the modification of CALCRIM 301 so that the jury was told that "Except for the testimony of Shannon Edmonds and Melvin Norton which is incriminating to the other and which requires supporting evidence, the testimony of only one witness can prove any fact," we do not believe it reasonably probable that the jury would have returned verdicts more favorable to defendant. He has therefore failed to satisfy the requirement of prejudice needed for reversal. (E.g., People v. Lopez (2008) 42 Cal.4th 960, 966; People v. Maury (2003) 30 Cal.4th 342, 389.)
Sentencing Issues
Concerning the sentences on the two enhanced assault counts, the trial court stated its intended disposition as follows: "[T]he Court would find that the aggravating circumstances outweigh the single mitigating factor in number and weight, which would indicate the upper term. [¶] And then we would move on to the issue of running the sentences concurrent or consecutive. The Court would find in looking at the criteria set forth in Rule 4.425 that the crimes and their objectives were certainly interrelated. Count 2 and Count 3 did involve separate acts of violence, Count 2, being the use of a knife, and Count 3, being the use of a club [i.e., the ASP baton]. [¶] However the crimes were committed at the same time and at the same place so closely in time as to constitute a single period of aberrant behavior and therefore either concurrent sentences or the 654 issues are therefore raised. And because there are separate weapons involved here and therefore separate acts of violence, my inclination would be to run them concurrent rather than use 654."
Defendant contends that the trial court erred in failing to apply section 654. He reasons that the assault counts "were an indivisible part of a single course of conduct with the same objective as the murder and the evidence failed to establish that appellant harbored multiple independent criminal objectives." Defendant has three subsidiary claims of more modest dimension. First, he argues that "even if section 654 did not completely bar punishment of the two assault counts in addition to punishment for the murder, it would require a stay of one of the assault counts and its accompanying GBI enhancement." Second, "even if section 654 permitted punishment of the two assault counts, it would require a stay of one of the GBI enhancements." Third, defendant submits that "even if section 654 did not prohibit concurrent sentences on the assault counts and GBI enhancements, sections 1170.1, subdivision (g) and 12022.7, subdivision (h) require that that the court stay one of the GBI enhancements."
"It is well settled that section 654 protects against multiple punishment, not multiple conviction. [Citation.] The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the same 'act or omission.' [Citation.] However, because the statute is intended to ensure that defendant is punished 'commensurate with his culpability' [citation], its protection has been extended to cases in which there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' [Citation.] [¶] It is defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.] Although the question of whether defendant harbored a 'single intent' within the meaning of section 654 is generally a factual one, the applicability of the statute to conceded facts is a question of law. [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 335.)
In making that factual determination, a sentencing court exercises a broad latitude, and "[i]n the absence of any reference to Penal Code section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective." (People v. Tarris (2009) 180 Cal.App.4th 612, 626.)
Just what were the defendant's criminal objectives, or how many objectives were harbored by the defendant, are issues of fact given over to the trial court's determination. And in situations where a trial court imposes separate sentences, a reviewing court looks to whether substantial evidence supports the sentencing court's implied finding that the defendant had more than a single criminal objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
The issue of whether section 654 applied was argued by defense counsel and the prosecutor, but it went unmentioned by the trial court when it sentenced defendant. We therefore conclude that the trial court made the implied finding that the assaults had separate criminal objectives from the murder. (People v. Tarris, supra, 180 Cal.App.4th 612, 626.) We also note that there is no doctrinal barrier to that finding, because assault with a deadly weapon is not a necessarily included offense of murder. (See People v. Sanchez (2001) 24 Cal.4th 983, 988 and authorities cited.)
Given the somewhat confused, if not chaotic, evidence, we believe the soundest approach is to consider the victim's wounds. The expert evidence was that Uehling died from the knife wound to his neck, although he might otherwise have died from a knife wound to the chest. There were additional knife wounds to the abdomen, the right buttock, the left thigh, the left forearm, and several fingers. The expert also testified there were also blunt force injuries "[a]lmost . . . from top to bottom" of Uehling's body, including the throat, possibly causing by kicking. There were also blunt force injuries to Uehling's stomach and right leg that were consistent with being caused by defendant's ASP baton.
This evidence may be construed as showing that defendant may have entertained multiple criminal intents. The blunt force injuries are consistent with the objective of merely inflicting a nonlethal beating. The second group of knife wounds to the victim can be seen as inflicted by defendant with the desire of causing greater—but still nonlethal—injuries. The lethal stab, whether accompanied by a homicidal impulse or not, came last. Certain statements made by defendant and Norton during their recorded police interviews, and at trial, are consistent with most of this scenario. Because the evidence is not undisputed, the issue cannot be decided as one of law. (People v. Harrison, supra, 48 Cal.3d 321, 335.) Although hardly overwhelming, we conclude there is substantial evidence to back the trial court's implicit findings that each conviction had an independent criminal objective. (People v. Osband, supra, 13 Cal.4th 622, 730-731.) Defendant's first claim, that there was a single criminal objective, must therefore be rejected.
Defendant's second claim—that one of the assault count sentences must be stayed because that offense was "incidental" to the murder—must also fail. Although logically defendant might be assumed to looking to have the knife assault count stayed, he does not expressly identify that count as his target. In any event, we could not assent to defendant's assertion that "The duration of the entire struggle was only a few minutes . . . . [T]his is not a case in which a pause between separate acts gave the defendant an opportunity to reflect and consider whether to break off the attack. Further, the apparent single objective of the attack was to harm Uehling. There was no different or separate criminal objective associated with one blow or the other." The preceding discussion demonstrates that defendant's assertion is based on an assumed premise that is contrary to the trial court's implied finding that we must respect. Beating Uehling does not establish the mens rea for murder. Even stabbing Uehling in nonvital regions does not prove the existence of intent homicidal. As for the duration of the attack on Uehling, we do not forget that "[m]ultiple criminal objectives may divide those acts occurring closely in time." (People v. Garcia (2008) 167 Cal.App.4th 1550, 1565.)
Defendant's arguments as to why one of the GBI enhancements must be stayed are somewhat unfocused. For present purposes we are willing to assume that section 654 is applicable to such an enhancement "[i]n the absence of any evidence making the assault[s] . . . divisible." (See People v. Reeves (2001) 91 Cal.App.4th 14, 55-57.) Again, it is puzzling that defendant does not specify which of the GBI enhancements should be stayed. Logically, one would assume he intends the knife assault enhancement because of the nonlethal character of the club assault count. In any event, there is no compulsion to stay either of the GBI enhancements because it has been shown there is an evidentiary basis for finding the assaults divisible.
Concerning his argument that is based on section 1170.1, subdivision (g) and section 12022.7, subdivision (h), defendant relies on authority holding that these provisions prohibit the imposition of more than one GBI enhancement if there is only one victim. (People v. Ausbie (2004) 123 Cal.App.4th 855, 863-865; People v. Arndt (1999) 76 Cal.App.4th 387, 398-399.) The Attorney General did not respond to this argument, which is somewhat surprising for she could have raised the obvious riposte that this argument was not preserved for appeal under the familiar rule of People v. Scott (1994) 9 Cal.4th 331, 351-352, 356 (Scott), because defendant did not raise it at the time of sentencing.
However, that rule exempts "unauthorized sentences," namely, a sentence that "could not lawfully be imposed under any circumstances in the particular case." (Scott, supra, at p. 354.) Section 12022.7, subdivision (h) provides that the sentencing court "may not impose more than one" such term "for the same offense." Here, there is no "same offense" because the GBI enhancements are attached to distinctly different counts that are not "for the same offense."
Section 1170.1, subdivision (g) provides in pertinent part: "When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense . . . ." Although we are dealing with "the same victim," this is not a situation involving "the commission of a single offense."
Because it appears that neither of the cited statutory grounds presents an "unauthorized sentence" in these circumstances, there is no reason not to apply the waiver rule of Scott, supra, 9 Cal.4th 331.
Finally, defendant will prevail with his claim that the abstract of judgment for the indeterminate term on the murder count should be amended to show that the sentence is to be served concurrently, not consecutively, to the terms for the assault counts. The Attorney General agrees that such modification is appropriate.
DISPOSITION
The judgment of conviction is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting that the indeterminate term is to be served concurrently to the determinate terms. The clerk is further directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
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Richman, J.
We concur:
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Kline, P.J.
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Haerle, J.