Opinion
B185932
12-15-2006
THE PEOPLE, Plaintiff and Respondent, v. CHARLES HENRY, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
Charles Henry appeals from a judgment entered after a jury convicted him of one count of attempted willful, deliberate, and premeditated murder in violation of Penal Code sections 664 and 187, subdivision (a) (count 1); resisting a peace officer in violation of section 148, subdivision (a)(1) (count 5); resisting a peace officer in violation of section 148, subdivision (a)(1) (count 6); assault with a semiautomatic firearm in violation of section 245, subdivision (b) (count 7); assault with a semiautomatic firearm on Cynthia in violation of section 245, subdivision (b) (count 8); and assault with a firearm on a peace officer in violation of section 245, subdivision (d)(2) (count 9).
All further statutory references are to the Penal Code, unless otherwise indicated.
The jury found true the allegation with respect to count 1 that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b). The jury found true the allegation with respect to counts 7 and 8 that appellant personally used a firearm within the meaning of section 12022.5, subdivision (a) and section 1203.06, subdivision (a)(1). Appellant was sentenced to life with the possibility of parole, plus 10 years.
Appellant contends that: (1) there was insufficient evidence that he committed an ineffectual act sufficient to constitute an attempted murder or that he had the specific intent to kill Cynthia Washington (Cynthia); (2) there was insufficient evidence that he assaulted Cynthia and Kameelah Washington (Kameelah) with a semiautomatic firearm; (3) his statement to Cynthia that "Im going to get you," was inadmissible hearsay; and (4) the trial court abused its discretion in determining there was no discoverable material regarding three police officers.
The People contend that the abstract of judgment should be corrected to conform to the trial courts pronouncement of judgment. We affirm the judgment of the trial court and remand this matter to the trial court to modify the abstract of judgment.
FACTS AND PROCEDURAL HISTORY
Viewing the whole record in the light most favorable to the judgment below as we must, the evidence established the following. (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) On October 23, 2004, Long Beach Police Officer Eduardo Saldana, Officer Victor Ortiz, and Officer Gerrit De Jongh were handling an unrelated investigation in Long Beach. Kameelah, Cynthias 21-year-old daughter, drove up to them honking the horn, while Cynthia was waving her arms in the passenger seat. Cynthia exited, pointed to a silver Mustang following her, and stated that appellant had pulled a gun on her. Officer Saldana saw the Mustang driving at a high rate of speed and cutting around other vehicles stopped at a light. Appellant exited the car with a black semiautomatic handgun, pointing it in a "westerly direction." Officer Saldana could not determine who or what appellant was pointing the gun at. He ordered appellant to drop the gun. The officer thought the slide was not pulled back, but could not see if there was a magazine in the weapon. As Officer Saldana began to pull his trigger, appellant made a motion with his hand on the top of the gun, then put the gun on the hood of the car. The officer ordered appellant to lie on the ground, and the other officers approached and handcuffed him.
Cynthia was visibly shaken, crying, and had difficulty breathing and talking. She told Officer Saldana that appellant left a message on her answering machine saying that if she was not going to look for him, he would look for her. Appellant followed her around in different vehicles, and at one point parked in front of her house. She also told the officer "I thought he was going to kill me. He was moving the gun round as though he was looking for a good place to shoot me." While appellant was sitting in the backseat of the patrol car, Cynthia told the officer "hes telling me hes going to get me." The officer turned and saw appellant mouthing the words "Im going to get you." Officer Saldana then told appellant to stop looking back toward Cynthia and threatening her, and appellant told him to "fuck off." Officer Saldana then heard appellant say "Im going to get you." Appellant did not seem drunk or confused.
Officer Ortiz saw appellant look at Cynthia and say "Im going to get you." As Officer Saldana reached in to turn appellant around, appellant leaned back and raised his foot up toward the officer. Officer Ortiz heard appellant say "Im going to kick you. If I didnt have these handcuffs on, Id kick your ass." At that point, Officer Ortiz opened the other door and stunned appellant with a taser. Appellant subsequently told Officer Saldana that the Mustang was a rental vehicle, and that he had another rental vehicle parked at the airport parking lot.
When Officer Ortiz recovered appellants gun, it contained two rounds and was double fed. Troy Ward, a criminalist with the Long Beach Police Department crime laboratory, testified that a gun is double fed when two bullets are jammed into a chamber. This can happen if the slide is not pulled back with enough force to completely extract and eject the cartridge. As the slide comes forward it strips the second or the next cartridge in line and tries to feed it at the same time that it is trying to feed the original cartridge that was in the chamber. A gun can also be double fed if the trigger is pulled and a second cartridge comes into the chamber.
Officer De Jongh interviewed Kameelah at the scene. Kameelah told him that appellant ran up to the passenger side, took a stance, and pointed the gun at both her and her mother. Officer Ortiz brought appellant to the emergency room and asked him if there was anybody he could contact in case of an emergency, and appellant replied, "You can put down the person I was going to go pop." Appellants blood alcohol level was .03.
At trial, Cynthia and Kameelah recanted parts of their statements to the officers. Cynthia testified that she ended a 13-year relationship with appellant in August 2004. In October 2004, appellant left a message on Cynthias voice mail, saying "You look for me. Ill look for you, and Im going to look for you." She denied telling Officer Saldana that appellant had left a message saying that since she was not looking for him, he would look for her. On October 22, 2004, Cynthia saw appellant driving a silver Toyota around the block. Cynthia was upset because her children noticed him driving around. However, she was not afraid. Kameelah saw appellant at the side of Cynthias house one time. When appellant called Cynthia on the evening of October 22, 2004, she told him that she would get a restraining order against him. Appellant became upset and hung up. Cynthia and her daughter Kameelah drove to the downtown police station to file a report and get a restraining order. Upon the advice of the officers, Cynthia returned to her home where an officer took a report.
On October 23, 2004, at 9:00 a.m., Cynthia was giving Kameelah driving lessons. Appellant drove nearby in a Mustang and waved. Cynthia told Kameelah to pull over, and she locked the doors. The windows were rolled up.
Kameelah testified that appellant tapped a gun against the window. Cynthia testified that appellant tapped on the window when he fell against the car. Kameelah screamed when she saw appellant holding a gun with two hands clasped together. Kameelah denied telling the officers that he pointed a gun at her and her mother. She testified instead that appellant waved the gun around and pointed it toward the front of the car. Kameelah stepped on the gas and drove the car toward a liquor store, where she saw some police cars. Cynthia testified that she was angry and afraid for her daughter, who was high-strung. Cynthia exited the car, and as appellant drove around the corner, told the police "He just pulled a gun on me." Cynthia denied telling officers that appellant pointed a gun at her or that she thought he was trying to kill her and was moving around for a good position. She also denied telling Officer Saldana that appellant was saying that he was going to get her.
Cynthia testified that she afterwards realized that the gun was not loaded, because the slide was projecting out. She believed that appellant never meant to shoot the gun; that he only wanted to scare her as a way of "reaching out for help." She also stated that appellants father had shot himself. Cynthia testified that appellant had never threatened her or acted violently toward her. Kameelah also testified that appellant had never threatened her mother or acted violently toward her.
Appellant testified that he served in the United States Air Force security service for three years, and that he was classified as a weapons expert. He stated that he was devastated when he broke up with Cynthia after 13 years. Appellant testified that on the occasion when Kameelah saw him at the side of the house, he had gone to retrieve his scuba tanks from the garage. At one point he left a message for Cynthia saying "You found me and Im going to find you," because she had come looking for him several times. Appellant testified that on October 22, 2004, he drove around Cynthias house for an hour and a half in a rental Toyota, trying to get attention from her, then traded that car for a rental Mustang in order to continue driving around the house. He suspected that Cynthia had called the police about the first car. During this time, he consumed whiskey. He talked to Cynthia, who told him that she was going to call the police. He drove to La Jolla and brought his binoculars to look at the moon, and a gun to protect himself while he slept on the beach. He woke up the next morning, and drank another pint of whiskey.
Appellant drove back to Long Beach and saw Cynthia and Kameelah driving around. He coincidentally had the binoculars and gun in his car. Appellant pulled up behind them, intending to put the unloaded gun to his head, so that Cynthia would stop him. Appellant tapped on the window, but before he could point the weapon at his own head, they drove off. Appellant denied ever having his hand on the trigger or pointing the gun at the car or the women in the car. He followed the women to the liquor store because there was no other route to take. During cross-examination he testified that when he first stopped Cynthia, the gun was unloaded. When they drove off, he went back to the car, and loaded the magazine into the gun.
He saw Cynthia talking to the police, exited the car, put his left hand up, put the gun down on the hood with his right hand, and lay down on the ground with his hands behind his back. He never pointed the gun at any police officer. He was placed in the backseat of the car, where he said to Cynthia, "I love you," and "is this what I get for falling in love with you?" Appellant admitted saying "Fuck you. Take off the handcuffs and Ill whoop your ass up and down the parking lot," to Officer Saldana. Appellant was then tasered by Officer Ortiz, and taken to the emergency room. In the waiting room, when asked by Officer Ortiz whom to contact, appellant said "the person [Officer Saldana] said I was going to pop." Appellant testified that "pop" meant "shoot."
DISCUSSION
I. Whether the trial court abused its discretion in admitting the statement "Im going to get you"
Appellant urges that the trial court abused its discretion by admitting Officer Ortizs testimony that appellant stated "Im going to get you," because the statement was inadmissible hearsay, irrelevant, and highly prejudicial, and deprived him of his right to due process and a fair trial. Appellant also claims that his trial counsel was ineffective for failing to adequately object to the statement. We disagree.
We review the trial courts ruling on the admissibility of evidence for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) We first note that while appellants counsel objected on hearsay grounds to Officer Ortizs statement: "Officer Saldana told me that he — that the defendant was threatening . . . ," he did not specifically object on any of the grounds now raised on appeal to the admissibility of the statement, "Im going to get you." Therefore, appellants claims on appeal that the statement was inadmissible hearsay, irrelevant, and unduly prejudicial, are waived. (Evid. Code, § 353; People v. Poggi (1988) 45 Cal.3d 306, 331.)
Appellant contends that the statement was inadmissible as a party admission because it was not relevant to whether appellant had tried to kill Cynthia; its meaning was vague; it did not tend to prove guilt when considered with the rest of the evidence; and it referred to a threat of future action. However, we need not address his arguments because the evidence was admissible under the state of mind exception to the hearsay rule. Evidence Code section 1250 provides that evidence of a statement of the declarants then existing state of mind is not made inadmissible by the hearsay rule when the evidence is offered to prove the declarants state of mind at that time or at any other time when it is itself an issue in the action. (Evid. Code, § 1250, subd. (a).) Despite appellants contention that the statement was highly prejudicial and was made as a threat of future action, which he could have made because he was angry for having been wrongly accused, we conclude that the statement was clearly relevant because it illustrated appellants state of mind in close enough proximity to the event to be trustworthy. (People v. One 1948 Chevrolet Conv. Coupe (1955) 45 Cal.2d 613, 621) [declarations are admissible to prove the state of mind at a particular time although made either before or after that time because the stream of consciousness has enough continuity "`for some distance up or down the current"].)
Appellant points to CALJIC No. 2.71 which was given to the jury as follows: "An admission is a statement made by [the] defendant which does not by itself acknowledge his guilt of the crimes for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. Evidence of an oral admission of the defendant not made in court should be viewed with caution." However, that instruction was probably given in connection with appellants statement: "You can put down the person I was going to go pop."
Moreover, that statement, taken in conjunction with his reference to Cynthia as "the person [he] was going to go pop," leads us to conclude that there is no reasonable probability that appellant would have obtained a more favorable result had the trial court refused to admit the statement. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Nor do we agree with appellant that his counsel was ineffective for failing to make a more specific objection to the statement. To demonstrate ineffective assistance of counsel, a defendant must show counsels performance was deficient because his or her representation fell below an objective standard of reasonableness, as well as prejudice flowing from counsels performance. (People v. Price (1991) 1 Cal.4th 324, 386-387 [superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165].) That is, counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile, as here. (People v. Price, supra, at p. 387.)
As we have concluded, the trial court did not abuse its discretion in admitting the challenged statement, and a more specific objection to the statement would not have resulted in a different outcome. Appellant was not deprived of his right to due process under the Fifth and Fourteenth Amendment and a fair trial under the Sixth and Fourteenth Amendment.
II. Whether there was sufficient evidence that appellant had the specific intent to kill Cynthia or committed an ineffectual act to constitute an attempted murder
Appellant contends the trial court erred in denying his section 1118.1 motion and that the evidence was insufficient to support his conviction for the attempted murder of Cynthia. He argues that the evidence failed to establish that he harbored the specific intent to kill or that he committed a direct but ineffectual act toward the commission of a murder. We disagree.
A. Standard of review
The substantial evidence test applies both when an appellate court is reviewing on appeal the sufficiency of the evidence to support a conviction and when a trial court is deciding the same issue in the context of a motion for acquittal under section 1118.1 at the close of evidence. (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
In reviewing a claim based on the sufficiency of the evidence, the appellate court reviews the record in the light most favorable to the verdict below to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.) All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, and every reasonable inference the jury could draw from the evidence is indulged. (People v. Autry (1995) 37 Cal.App.4th 351, 358.)
B. The elements of attempted murder
Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623.)
1. Specific intent to kill
Intent to unlawfully kill and express malice are essentially the same. (People v. Smith (2005) 37 Cal.4th 733, 739.) Express malice requires a showing that the assailant desires the result or knows, to a substantial certainty, that the death will occur. (Ibid.) There is rarely direct evidence of intent. (Id. at p. 741.) "Such intent must usually be derived from all the circumstances of the attempt, including the defendants actions." (Ibid.) Evidence of motive is often probative of intent to kill, although one may kill without a motive and still be found to have acted with express malice. (Ibid.)
In People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-1208, the court held that substantial evidence supported the defendants conviction for attempted willful, deliberate and premeditated murder where the defendant gang member heard that one of his gang member companions had been involved in a fight with the victims at a party. He aimed a weapon at the victims, and pulled the trigger, but the weapon failed to fire. Planning was demonstrated by the fact that the defendant and his companions armed themselves before attending the party, and parked around the block so that they could leave immediately should the need arise. Moreover, the defendant had the motive to attempt the murder because a gang expert testified that gang members are expected to defend each other and shoot anyone who disrespected a fellow member of the gang. (Id. at p. 1208).
Similarly, in People v. Smith, supra, 37 Cal.4th at page 743, our Supreme Court affirmed the jurys conviction of the defendant for attempted murder, holding that malice could be inferred where the defendant fired from behind the car at close range at a mother and baby in her car, each of whom was directly in his line of fire. The bullet missed the mother, who was the driver, and the baby, who was in the backseat, by inches, shattering glass all over the infants face.
Appellant contends that there was no evidence that he made prior threats or statements that he intended to kill Cynthia; the evidence was insufficient to demonstrate that he pointed his gun at Cynthia or attempted to fire it; and that the gun was never fired. At most, he claims, the evidence was equivocal as to whether he intended to kill Cynthia. Appellants argument is merely a request that this court reweigh the evidence. However, that is not the function of an appellate court when reviewing the record for sufficiency of the evidence. (People v. Culver (1973) 10 Cal.3d 542, 548.)
The record shows that appellant was devastated by the ending of his 13-year relationship with Cynthia. She asked him to stop calling her everyday, and told him the night before the incident that she would get a restraining order against him. Thus, the jury could infer that because Cynthia spurned him, appellant had a motive for trying to kill her. The jury could also infer that appellant acted with willfulness, deliberation, and premeditation based on circumstantial evidence. (People v. Lee (2003) 31 Cal.4th 613, 624.) When he was apprehended by the police, appellant had a loaded gun in his possession and binoculars in his car, evidencing a plan to spy on Cynthia and kill her. The jury was entitled to reject his explanation that he brought the gun to the beach for protection and the binoculars to gaze at the stars. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [it is the exclusive province of the jury to determine the credibility of the witness].) Moreover, appellant switched rental cars after Cynthia told him that she was going to get a restraining order, leading to the inference that he switched cars so she and the police would not be able to identify him quickly. Thus, the jury could conclude that he acted with careful thought, preexisting reflection, and weighed considerations. (Ibid.) And, the jury was within its rights to disregard Cynthias testimony that she later realized the gun was not loaded because the slide was projecting out. It could also reject appellants testimony that the gun was not loaded when he brought it over to the women, and he only loaded the gun when he pursued them to the liquor store.
The officers testified that at the time of the incident, the women were shaken, frightened, and crying, and that they told the officers that appellant had "pulled a gun" on them and pointed a gun at them. Cynthia stated that appellant was moving around as if he were trying to find a good position to shoot her. The officers heard him say "Im going to get you." The jury was entitled to disbelieve Kameelah and Cynthias testimony at trial that appellant never pointed the gun at them, and he was reaching out for help. They could also reject Cynthia recanting of her statement that she thought appellant was trying to kill her and that he was saying he was going to get her. Finally, appellants statement to Officer Ortiz that he could contact "just the person [he] was going to go pop," as well as his actions in mouthing the words "Im going to get you," supports the inference that he intended to kill Cynthia.
We conclude that substantial evidence supports the finding that appellant intended to kill Cynthia.
2. Commission of a direct, ineffectual act
Appellant urges that there was no evidence beyond a reasonable doubt that he performed a direct but ineffectual act because he never fired the gun; there was no evidence that he tried to fire the gun, because there were no indentation marks on any of the bullets; Cynthia and Kameelah testified that appellant never pointed the gun at them or toward the car; and Officer Saldana admitted on cross-examination that Cynthia probably said that appellant "pulled a gun" on her, rather than "pointed a gun at [her]." Again, appellant requests that this court reweigh the evidence, which we cannot do. (People v. Culver, supra, 10 Cal.3d at p. 548.)
An attempt is the direct movement toward the commission of the crime after the preparations are made. (People v. Memro (1985) 38 Cal.3d 658, 698.) That is, the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances. (Ibid.) The overt act necessary to supply the second element need not be the last proximate act prior to the commission of the crime itself. (People v. Parrish (1948) 87 Cal.App.2d 853, 856.)
In People v. Parrish, supra, the defendant asked the witness to help him kill his wife. The defendant entered the witnesss car with a loaded gun, drove to her home, listened to see if there was any person present in her house, and sent the witness into the house so that the defendant might gain entrance and kill his wife. Such acts constituted overt acts toward the commission of the crime. (People v. Parrish, supra, 87 Cal.App.2d at p. 856.)
Here, appellant went to the passenger window of Cynthias car; held a gun pointed at the women with both hands; took a stance; and followed them at a high rate of speed. Moreover, although appellant attempts to cast doubt on Officer Saldanas testimony that Cynthia told him appellant pointed a gun at her, Officer De Jongh testified that Kameelah told him appellant had pointed the gun at them. The jury could find that but for the extraneous circumstance of Kameelah driving off and flagging down the police, appellant could have cleared the jam in the gun and shot Cynthia.
We conclude that substantial evidence supports the finding that appellant committed a direct but ineffectual act sufficient for attempted murder.
III. Whether there was sufficient evidence that appellant assaulted Cynthia or Kameelah with a semiautomatic firearm
We disagree with appellants next contention that the evidence was insufficient as a matter of law that he assaulted Cynthia or Kameelah with a firearm.
Section 240 defines assault as: ". . . an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Appellant merely urges that he did not attempt to commit a violent injury or a battery upon Cynthia or Kameelah, for all the reasons set forth in the previous argument. Rather, he urges the evidence shows that he did not point the firearm at anyone, but at most attempted to frighten Cynthia by displaying a firearm in her presence. He claims that this conduct amounts merely to brandishing a weapon in violation of section 417.
Appellant again asks that this court reweigh the evidence, which we cannot do. (People v. Culver, supra, 10 Cal.3d at p. 548.) The record shows that Kameelah told Officer De Jongh appellant had pointed the gun directly at her mother and herself. Officer Saldana testified that Cynthia told him appellant had pulled a gun on her.
Therefore, the evidence was sufficient to support appellants conviction for assault with a semiautomatic weapon. (People v. Bolin (1998) 18 Cal.4th 297, 331 [in reviewing a claim based on the sufficiency of the evidence, we review the record in the light most favorable to the verdict below].)
IV. Whether the trial court was correct in determining that there was no discoverable material under Pitchess
Appellant made a motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The trial court conducted an in camera review and determined there was no discoverable material. Appellant requests that we review whether discoverable information was improperly withheld from him.
Under Pitchess and the statutory scheme codifying Pitchess, upon proper request and a showing of good cause by the defendant, the trial court shall examine the personnel records of police officers and order disclosed to the defendant those records found relevant and in compliance with statutory limitations. (Evid. Code, §§ 1043-1047; §§ 832.5, 832.7 & 832.8; People v. Mooc (2001) 26 Cal.4th 1216, 1227.)
The appellate court determines whether the trial court abused its discretion in making its decision on the discoverability of material in police personnel files. (People v. Mooc, supra, 26 Cal.4th at p. 1228.) To facilitate appellate review, the trial court must make a record of the documents it reviewed by photocopying the documents, making a list of them, or simply stating for the record the documents it reviewed. (Id. at p. 1229.)
Our review of the reporters transcript of the in camera review of documents produced shows the trial court properly exercised its discretion. It examined and described the nature of each complaint produced by the custodian and determined that they were not relevant to appellants charge of dishonesty, false reports and fraud.
We conclude the trial court did not abuse its discretion in denying appellants motion for pretrial discovery.
V. Whether the abstract of judgment should be amended to reflect the correct number of days of actual presentence custody
The People request that the abstract of judgment be amended to reflect that appellant was awarded a total of 370 days of presentence custody credit, consisting of 322 actual days, and 48 days of good time/work time credit. The abstract of judgment mistakenly reflects 348 actual days and 22 days of conduct credit.
Appellant does not address this issue in his reply brief.
We agree that the trial court must be ordered to amend the abstract of judgment to conform to the trial courts pronouncement of judgment. (People v. Mitchell (2002) 26 Cal.4th 181, 188.)
DISPOSITION
The matter is remanded with directions to the trial court to correct the abstract of judgment to reflect that appellant was awarded a total of 370 days of presentence custody credit, consisting of 322 actual days, and 48 days of good time/work time credit, rather than 348 actual days and 22 days of conduct credit. In all other respects, the judgment is affirmed.
We concur:
DOI TODD, J.
CHAVEZ, J.