Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 09CM7610 Donna L. Tarter, Judge.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Timothy Howard, an inmate serving two life sentences at Corcoran State Prison, attacked a correctional officer who entered his cell to save him from a suicide attempt he faked. A jury found him guilty of, inter alia, attempted murder and assault with malice by an inmate serving a life sentence. He appeals, arguing evidentiary and instructional issues. We affirm.
ISSUES ON APPEAL
Howard argues that (1) the record contains an insufficiency of the evidence of intent to kill (with reference to the attempted murder) and malice aforethought (with reference to the assault) and (2) the court’s exclusions of evidence and refusals of proffered instructions denied him due process.
BACKGROUND
On May 24, 2010, the district attorney filed an amended information charging Howard with the commission of attempted willful, deliberate, and premeditated murder (count 1; Pen. Code, §§ 187, subd. (a), 664), assault with a deadly weapon or by means of force likely to produce great bodily injury with malice by an inmate serving a life sentence (count 2; § 4500), battery by a prisoner on a nonprisoner (count 3; § 4501.5), and possession by a prisoner of a sharp instrument (count 4; § 4502, subd. (a)) on August 21, 2009. The information alleged four strike priors – a 2002 attempted murder, two 2002 forcible rapes, and one 1996 robbery – as serious or violent felonies or juvenile adjudications within the scope of the three strikes law. (§§ 187, subd. (a), 211, 261, subd. (a)(2), 664, 667, subds. (b)-(i), 667.5, subd. (c)(1), (c)(3), (c)(12), 1170.12, subds. (a)-(d), 1192.7, subds. (c)(1), (c)(3), (c)(9).)
Later statutory references are to the Penal Code except where otherwise noted.
On May 25, 2010, a jury found Howard guilty as charged, found the allegation of premeditation and deliberation true as to the attempted murder, and found all four strike prior allegations true. On July 22, 2010, the court sentenced him to a 27-to-life term on the count 2 assault with a deadly weapon or by means of force likely to produce great bodily injury with malice by an inmate serving a life sentence (§§ 667, subd. (e)(2)(A)(i), 4500) consecutive to the sentence he was then serving and stayed the other three counts (§ 654).
DISCUSSION
1. Sufficiency of the Evidence
Howard argues that the record contains an insufficiency of the evidence of intent to kill (with reference to the attempted murder) and malice aforethought (with reference to the assault). The Attorney General argues the contrary.
Our analysis commences with a review of the relevant evidence in accordance with the usual rules on appeal for insufficiency-of-the-evidence claims. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) After a control booth officer told him that the cell where Howard was the sole inmate was blacked out, Correctional Officer Rosalio Botello saw that the lights were out and the cell windows were covered, so he knocked on the door and yelled out Howard’s name but received no response. Through a small gap in the window covering, he saw a silhouette inside the cell that looked like a person in a wheelchair with a pillow case over his head and a rope attached to his head and the ceiling. Fearing a suicide, Botello had the control booth officer activate the alarm. He then donned a helmet and a protective entry shield and, with his sergeant behind him, entered Howard’s dark cell.
As soon as Botello realized the object in the wheelchair was a dummy, not a person, he pulled down a curtain hanging inside the cell. Howard jumped out at him from behind the curtain, knocked the shield out of his hand, and struck him repeatedly on the arm. As Botello grabbed his wrists and pushed him back, he saw a metallic object in his hand. “He has a weapon!, ” Botello yelled. Looking up at him, Howard said, “Oh, Botello, not Botello.” The “thrust” of Howard’s body “kind of stopped, ” but he “was still resisting.” The “attack seemed to have slowed down, ” but “it didn’t stop.”
A “big surge” of correctional officers entered Howard’s cell and “helped take control of him” immediately after Botello yelled out about the weapon. Only then did he see “some blood” on the floor and “a lot of blood and some body tissue” on his jumpsuit. Airlifted to a Fresno hospital, he received 18 stitches for his wound and missed 40 days of work.
Investigative Services Unit Correctional Officer Che Love interviewed Howard after the stabbing. He admitted that he planned the attack and that he intended to kill an officer by stabbing him in the neck. He said he put a dummy in a wheelchair to mimic a suicide so correctional officers would enter his cell for a medical extraction with only helmets and shields but without the chemical agents or tactical gear that could prevent a stabbing. He said he stopped the attack after he identified Botello, “a fair and impartial officer” who “did his job.”
On that record, Howard admits, with reference to the attempted murder, that he “planned to kill any officer who came into his cell” but argues that once he identified Botello as the officer who entered his cell he “stopped his assault.” (Italics in original.) Since he “never stabbed Botello in the neck, ” he concludes, he “never attempted to kill Botello.” The record shows the contrary. Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7; § 21a.) Howard admitted the requisite specific intent to kill. Botello’s testimony established the requisite commission of a direct but ineffectual act toward accomplishing the intended killing. Even so, he seeks refuge in the rule, “Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature.” (People v. Buffum (1953) 40 Cal.2d 709, 718, overruled on another ground by People v. Morante (1999) 20 Cal.4th 403, 422.) He argues, on the basis of his comment, “Oh, Botello, not Botello, ” that “he stopped attempting to injure the officer.” Though fairly summarizing his statement to the investigator, his argument altogether ignores Botello’s testimony that the “thrust” of Howard’s body “kind of stopped” after that comment and that the “attack seemed to have slowed down” but that Howard “was still resisting” and that the attack “didn’t stop” until a big surge of other correctional officers entered his cell and helped take control of him.
With reference to the assault, the element of malice aforethought has the same meaning as in attempted murder. (People v. Jeter (2005) 125 Cal.App.4th 1212, 1216, citing, e.g., People v. St. Martin (1970) 1 Cal.3d 524, 536-537.) Howard argues that the “‘aforethought’ aspect of the incident was to stab the officer in the neck” but since “the assault never got that far” the “part of the attack (stabbing in the neck) that would have been imbued with malice aforethought never occurred.” However, the record shows the contrary. Malice aforethought “is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188.) Howard admitted the specific intent to kill that is the functional equivalent of express malice aforethought. (People v. Moon (2005) 37 Cal.4th 1, 29.)
Our duty on a challenge to the sufficiency of the evidence is to review the whole record in the light most favorable to the judgment for substantial evidence – credible and reasonable evidence of solid value – that could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318 (Jackson); People v. Prince (2007) 40 Cal.4th 1179, 1251 (Prince).) That standard, which applies to circumstantial and direct evidence alike, requires us to presume in support of the judgment the existence of every fact a reasonable trier of fact reasonably could have deduced from the evidence. (Prince, supra, at p. 1251.) By that standard, our review of the record persuades us that a sufficiency of the evidence of intent to kill (as to the attempted murder) and malice aforethought (as to the assault) is in the record. (Ibid.) Howard’s insufficiency of the evidence arguments simply ask us to reweigh the facts. That we cannot do. (People v. Bolin (1998) 18 Cal.4th 297, 331-333 (Bolin).)
2. Evidentiary and Instructional Rulings
Howard argues that the court’s exclusions of evidence and refusals of proffered instructions denied him due process. The Attorney General argues the contrary.
Our analysis commences with a colloquy on the admissibility of evidence shortly before the evidentiary phase of the trial. Articulating self-defense as his rationale for the admission of the evidence at issue, he stated, “Everything I plan on presenting to my case has to do with myself and I exercise the institution grievance policy, there was no relief therefore this act resulted as a result of that.” The court ruled that “any reference to past 602’s, any policy grievances that you have, any grievances you have with the custody officers, that is not relevant.”
California Department of Corrections and Rehabilitation (CDCR) form 602 allows inmates to appeal “any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare.” (Cal. Code Regs., tit. 15, § 3084.1, subd. (a).)
On the court’s own motion, a later evidentiary hearing clarified the admissibility of the evidence at issue. (Evid. Code, § 402.) Love testified that Howard told him he orchestrated the attack because a control booth officer stole his stamps and the appeals office improperly denied his 602’s. Howard informed the court he wanted to go into additional issues of “physical abuse, denying inmates food, water sanitations, things of that nature.” Even if everything Howard said were true, the court ruled, the evidence at issue was inadmissible since “in essence what you’re saying is because my appeal was denied wrongfully I can now kill somebody.”
In the presence of the jury, the court sustained relevance objections to Howard’s questions of Botello about inmate condition-of-custody complaints, about CDCR policy on telephones in cells, about the absence of a mattress from his cell, and about the reason for a wheelchair in his cell. The court sustained relevance objections to his questions of Love, likewise in the presence of the jury, about the absence of a mattress from his cell, about the issuance of mattresses to inmates, about the reason for a wheelchair in his cell, and about George Jackson’s identity.
At the instruction-settling conference, Howard requested CALCRIM Nos. 3402 (“Duress or Threats”) and 3403 (“Necessity”) on the grounds that he was “paralyzed by custody at Corcoran, ” “repeatedly abused in that prison, ” “not fed, ” and “denied outgoing mail to notify the Court, ” for all of which the prison had “no accountability.” In short, “Custody was trying to kill me back then, ” he argued. The court denied his request for those instructions on the ground that there was “no evidence” that gave “rise to the level of a legal defense.”
CALCRIM No. 3402, reads, in part, “The defendant is not guilty of [insert crime(s)] if (he/she) acted under duress. The defendant acted under duress if, because of threat or menace, (he/she) believed that (his/her/ [or] someone else’s) life would be in immediate danger if (he/she) refused a demand or request to commit the crime[s]. The demand or request may have been express or implied.”
CALCRIM No. 3403 reads, in part, “The defendant is not guilty of [insert crime(s)] if (he/she) acted because of legal necessity. [¶] In order to establish this defense, the defendant must prove that: [¶] 1. (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else); [¶] 2. (He/She) had no adequate legal alternative; [¶] 3. The defendant’s acts did not create a greater danger than the one avoided; [¶] 4. When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; [¶] 5. A reasonable person would also have believed that the act was necessary under the circumstances; [¶] AND [¶] 6. The defendant did not substantially contribute to the emergency.”
On appeal, Howard claims that he requested instruction on “self-defense” and argues that he had a right to instructions on both self-defense and imperfect self-defense, but he cites nothing in the record showing a request for either. The rules of court require “[e]ach brief” to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rules 8.204(a)(1)(C), 8.360(a).) In the interest of judicial efficiency, we adjudicate his arguments on the merits without addressing the Attorney General’s forfeiture argument. Likewise in the interest of judicial efficiency, we adjudicate Howard’s arguments on the merits as to the attempted murder and the assault alike despite arguable shortcomings in the record.
As to the evidence at issue, the rule is settled that a defendant has a right “to present all relevant evidence of significant probative value to his [or her] defense.” (People v. Reeder (1978) 82 Cal.App.3d 543, 553, citing Chambers v. Mississippi (1973) 410 U.S. 284, italics in original.) Howard cites no persuasive authority at all, however, in support of his argument that the evidence at issue was either relevant or of significant probative value to his defense. Since every brief should contain a legal argument with a citation of authorities on points made, the reviewing court may treat as waived a point on which none is furnished. (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley).) We do so here.
As to the instructions at issue, the rule is settled that, “‘“even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154, italics added.) Howard cites no persuasive authority at all, however, in support of his argument that the instructions at issue were relevant to the issues raised by the evidence. Since every brief should contain a legal argument with a citation of authorities on points made, and since the reviewing court may treat as waived a point on which none is furnished, we again do so here. (Stanley, supra, 10 Cal.4th at p. 793.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Dawson, J.