Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA291981 Anne H. Egerton, Judge.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Fraydun Ahmad Kordian (defendant) appeals from a final judgment following his conviction by jury of two counts of murder (Pen. Code, § 187), two counts of attempted murder (§§ 664 & 187, subd. (a)), and related charges, which are set forth at length below. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
CONTENTIONS
Defendant contends that the evidence was insufficient to convict him on count 4, the attempted murder of Maribel Hernandez. In addition, defendant contends that defense counsel was ineffective in conceding that defendant was guilty of count 4 and in failing to request an instruction regarding legal impossibility.
STATEMENT OF THE CASE
On January 2, 2008, the Los Angeles County District Attorney’s Office filed an information charging defendant with two counts of murder in violation of section 187, subdivision (a) (counts 1 & 3), and two counts of attempted murder in violation of sections 664 and 187, subdivision (a). It was further alleged as to counts 1 through 3 that defendant personally used a firearm within the meaning of section 12022.53, subdivision (d), which proximately caused great bodily injury or death within the meaning of that section. As to count 4, it was further alleged that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b). Additionally, it was alleged that defendant committed the special circumstance of multiple murders within the meaning of section 190.2, subdivision (a)(3).
Defendant pleaded not guilty and denied all special allegations. Trial was by jury. The jury found defendant guilty as charged and found all special allegations to be true.
Defendant was sentenced to state prison for two terms of life without parole for counts 1 and 3, plus two consecutive terms of life for counts 2 and 4; 25 years to life for the section 12022.53, subdivision (d) firearm enhancements to counts 1, 2, and 3; and 10 years for the firearm enhancement to count 4. The court stayed the terms for the other firearm enhancements. It credited defendant with 1, 329 days and imposed a $200 restitution fine, an $80 court security fee, and $21,357.72 in restitution to the State Victim’s Compensation and Government Claims Board.
Defendant filed a timely notice of appeal on July 22, 2009.
STATEMENT OF FACTS
1. Prosecution case
A. Background
Defendant met Rosalia in Mexico when she was 15 years old. About a year later, when Rosalia was pregnant with defendant’s son Sherwan, defendant brought Rosalia to live with him and his wife in San Diego. This was 1988. While Rosalia lived with defendant and his wife, they treated her like a maid and a babysitter for their son Sherzad. Rosalia was not allowed to touch the telephone or open the door to the house. She had to tell others that she was the babysitter. If she did not obey defendant, he would hit or push her.
In approximately 1992, Rosalia and defendant moved to Los Angeles. Defendant divorced his wife and married Rosalia in 1996. During their marriage, defendant monitored Rosalia closely. He had recording devices in their home. He paid people to watch her, followed her by car, and had someone watching her while she was at work. Defendant threatened to make Rosalia’s life unbearable if he ever saw her with anyone else or if she ever left him and remarried. When he was angry, defendant would break things and threaten to kill her. Rosalia was afraid of defendant.
Rosalia left defendant in 2002 or 2003. In August 2003, she bought her own house on Ruthelen Street and moved into it with Sherwan. The front of the property had a fence, and the driveway was enclosed by a gate, which was always kept locked. At some point, surveillance cameras were installed outside the house as a general precaution.
After Rosalia left defendant, he tried to reconcile with her. After about seven or eight months, Rosalia decided she did not want to reconcile and sought a divorce. Defendant refused to give Rosalia a divorce and continued to threaten to kill her and her family if he found out she was with another man. Rosalia never obtained a divorce because defendant refused to sign divorce papers and she did not have time to go to court and obtain the divorce.
Weeks before the shooting, defendant told Sherwan that, if he found out that Rosalia was seeing another man, he would not “stay still” like Jose Luis had. Sherwan did not take defendant’s threat seriously, because he knew that defendant had always been jealous and had even threatened to kill Rosalia if she ever left him. However, defendant had never followed through on his threats.
Jose Luis was Sherwan’s aunt’s ex-husband. When Jose’s wife left him and married someone else, he never tried to break up her new relationship.
In August or September 2005, Rosalia started seeing a man named Ricardo. She did not tell defendant right away because she knew how violent he could be. However, she wanted to tell him because she knew he was watching her constantly. She hoped that if she told him about Ricardo, defendant would let her go as he had done with his first wife.
On October 1, 2005, Rosalia took a business trip to Texas for 10 or 12 days. During the trip, defendant called her repeatedly. During one call, she told him that she had met someone else, that she wanted to start a new life, and that she did not want him to interfere. He was upset and angry. He threatened to kill her and Ricardo, so she told him that she was going to stay in Texas, which was a lie. He retorted that he could still harm her family. He threatened to kill her family and burn her house down if she stayed in Texas.
Due to defendant’s threats, Rosalia stayed at someone else’s home when she returned from Texas. On October 11, 2005, she obtained a restraining order against defendant. In her affidavit, she stated that defendant had threatened to kill her family no matter where or how far she went and that he had warned her to be careful and to tell her family to be careful. Her family was very scared.
During the week or two before the shootings, defendant made a number of statements to Sherwan regarding Rosalia’s relationship. He said Rosalia had killed him spiritually by telling him that she had another man. He cried and said things like, “How can your mother do this to me?” He questioned Sherwan about her relationship and said Sherwan could save a life by telling her to stop seeing Ricardo. He offered Sherwan $1,000 to tell him where Rosalia was, but Sherwan refused. Defendant was infuriated that Rosalia had a restraining order against him.
About 10 or 12 days before the shooting, defendant told his friends Adiba Abdulla and her husband that Rosalia was cheating on him. He said that Rosalia’s new boyfriend had told defendant that he was better looking and a better lover than defendant, and that he bought Rosalia more than defendant could afford. Defendant said that Rosalia had wronged him, since he had helped her a lot by bringing her here from Mexico, spending a lot of money on her health care, and getting her a green card. Defendant stated that Rosalia should be killed because of everything she had done to him. Adiba advised him not to think about that because, if anything happened to Rosalia, he would lose everything and spend his life in jail. Defendant responded that he would not accept the situation.
B. The shootings
Rosalia returned to her house on Ruthelen Street for the first time since her trip to Texas on the evening of October 18, 2005. At the time, Sherwan was living there, along with Rosalia’s mother Zenaida; her brother Fernando; her niece Evelyn; her sister Marisol; Marisol’s husband Edgar; and Marisol and Edgar’s small son Alonzo.
On the morning of October 19, 2005, Rosalia was getting ready to drive Sherwan and Evelyn to school. She walked out of the house and got in her car at about 7:00 a.m. to wait for them. Before Rosalia could start the car, defendant jumped over the fence and walked into the house. Rosalia saw Evelyn walk out of the house and gesture to her. Rosalia jumped in the back seat of the car to hide.
Defendant stormed into the house, rushed upstairs, looked around, and went back downstairs. At the time, Sherwan was eating breakfast in the dining room. Zenaida, Evelyn, Fernando, Marisol, Edgar, and Alonzo were also in the house.
When defendant got back downstairs, he asked Sherwan where Rosalia was. Sherwan said she was not there and asked why defendant was there. Defendant said he wanted to give her the divorce papers that were inside the manila envelope he was holding. Sherwan offered to give her the papers, but defendant said he wanted to do it personally. Sherwan noted that defendant had a Mohawk hair cut, which he had never worn before, and that his conduct was unusual in that he had never entered the house uninvited before.
Sherwan escorted defendant out of the house and to the front gate. On the way, defendant tried to look through the window of Rosalia’s car, where Rosalia was still lying on the floor of the back seat. Out of an abundance of caution, Sherwan drove to his school with Rosalia still lying down in the back. After they arrived at Sherwan’s school, Rosalia drove Evelyn to school and returned to her house on Ruthelen Street.
Around 7:30 or 7:40 a.m., Rosalia’s sister Maribel Hernandez (Maribel) arrived to pick up her five-year-old son, whom Zenaida was watching. She parked in the driveway and entered the house. Zenaida told Maribel that her son was sleeping, so Maribel went upstairs to get him.
When Rosalia returned, Maribel and Zenaida were outside in front of the house. Rosalia parked behind Maribel’s car, and Maribel told her that she was almost ready to leave. Rosalia said she would be right back to move her car and ran into the house to use the bathroom. She went to the upstairs bathroom because Fernando was using the downstairs bathroom. Maribel and Zenaida walked into the house, leaving the front door ajar.
As she was walking down the stairs a few moments later, Rosalia saw defendant on the stairway below her. He was holding a manila envelope. Defendant looked at Rosalia and said with hatred, “Do you want a divorce? Here it is, but I’m going to kill you.” Then he pulled out a gun.
Rosalia ran into the kitchen yelling, “Mom, he’s going to kill me!” Defendant followed her into the kitchen. Zenaida, who was at the sink, turned around to face defendant. She raised her hands with her palms out and said something like, “Stop, stop, let’s talk.” Defendant pointed the gun at Zenaida and fired one shot, which hit her, causing her to fall on Rosalia.
As Rosalia tried to hold her mother upright, defendant shot at Rosalia’s head. The bullet went through Rosalia’s outstretched right hand instead. Rosalia started to fall. Defendant walked towards her and fired a shot towards her chest twice. One bullet hit her a little below the collarbone. Rosalia fell to the floor, and Zenaida landed on top of her. From the hallway, Maribel saw defendant shoot Zenaida once and then shoot at Rosalia three times.
Defendant then pointed the gun at Maribel’s child, who was running around because he was frightened. Then defendant pointed the gun at Maribel. Fernando came out of the bathroom, approached defendant, and asked, “Why did you do this?” Defendant pointed the gun at Fernando, fired two shots, and Fernando fell to the floor.
Defendant then turned back to Maribel and pointed the gun at her again. Maribel went into the kitchen, got on her knees, put her hands behind her head, and looked at defendant. Maribel saw defendant pulled the trigger twice, and felt air on her back. However, the gun was out of bullets. Defendant then walked towards the front door, threw his gun into the living room, and left the house.
Maribel stood up, saw her sister Marisol walking down the stairs, and said, “Look at what Freddie did.”
C. The aftermath
The parties stipulated that the police recovered from the living room floor a.38 caliber special Smith & Wesson handgun that was fully loaded with six spent casings. The parties also stipulated that home surveillance cameras recorded the events that occurred outside the residence during the morning of October 19, 2005.
Officer Oscar Ordonez went to the house on Ruthelen Street that same day. In the driveway he found a note written by defendant. The note stated: “I told you... you come back, I forgive you. You did not come back. I don’t know why. He gave you better than I did or was richer than me? I struggled for so many years. I sent a lot to the ranch. I’ve already got it over there with a lot of animals waiting for you to change, but you did not change. That I take from your death with your kidney.” On the back of the note defendant had written, “Bitch, you marry this bastard, I’ll -- he brought you bad luck, that’s why I did not treat you how one should treat. You love him because presentable expensive clothes. You used to tell me you love Nacho and Nacho would give you money.”
On October 19, 2005, while detectives were interviewing Adiba Abdulla and her husband, defendant called Mr. Abdulla’s cell phone. When Mrs. Abdulla answered the phone, defendant told her, “I shoot them.” When Mrs. Abdulla asked where he was, defendant replied that he was driving far away.
After the shooting, Rosalia spent two weeks in the hospital. Zenaida and Fernando died. An autopsy revealed that Zenaida’s body had one gunshot wound, a fatal wound to the neck. An autopsy revealed that Fernando’s body had two gunshot wounds: one to the neck, and one to the chest.
The parties stipulated that defendant was arrested in Istanbul, Turkey on October 21, 2005.
2. Defense case
Sherzad Kordian, defendant’s older son, was driving in a car with defendant about two weeks before the shooting. Rosalia called defendant and told him of her relationship with Ricardo. Defendant was crushed and very upset. He told Sherzad that he felt like jumping out of the car and killing himself. Afterwards, Sherzad saw a marked shift in defendant’s demeanor. Defendant would not eat or sleep very much and was very upset. Around the day after he learned about Ricardo, defendant threatened to kill Rosalia and Ricardo. The day before the shooting, Sherzad left Los Angeles because it was too much dealing with his father.
Aisha Cruz (Cruz), defendant’s ex-wife, testified that she and defendant divorced in 1995, after a nine or ten year marriage. While they were married, Rosalia told Cruz that she had to share defendant. Then, after Rosalia learned that she was pregnant, she appeared at Cruz’s house and said she was not going back. She stayed with Cruz and defendant for a couple of years. Cruz never saw defendant hit Rosalia. Defendant took Rosalia for dialysis treatments every day. As a result, defendant and Cruz lost their business. Cruz agreed to divorce defendant so that Rosalia could get a green card and apply for medical assistance for her kidney transplant.
3. Rebuttal
Detective Tyler Lee testified that he traveled to Minnesota to interview Cruz after the shooting. During that interview Cruz told him that, prior to getting divorced in 1995, defendant had threatened her.
DISCUSSION
I. Sufficiency of the evidence on count four: attempted murder of Maribel Hernandez
The jury convicted defendant of count 4, the attempted murder of Maribel. “‘[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.]” (People v. Smith (2005) 37 Cal.4th 733, 739.)
Defendant contends that no substantial evidence supports his conviction for the attempted murder of Maribel because, when he pointed his gun at her and pulled the trigger, he knew or must have known that he was out of ammunition. Therefore, defendant contends, the crime of attempted murder was legally impossible to commit.
A. Standard of review
To determine whether a conviction is supported by substantial evidence, a reviewing court must examine the entire record in the light most favorable to the judgment to determine whether the evidence is reasonable, credible, and of such solid value that any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) Reversal is not warranted unless “‘it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” [Citations.]’” (People v. Hughes (2002) 27 Cal.4th 287, 370.)
The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) If the circumstances reasonably justify the trier of fact’s determination that the defendant is guilty beyond a reasonable doubt, a reviewing court’s opinion that the circumstances might also reasonably be reconciled with an alternative conclusion does not justify reversal of the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
B. Legal and factual impossibility
Defendant relies on the doctrine of legal impossibility. “‘“Legal impossibility” denotes conduct where the goal of the actor is not criminal, although he believes it to be....’ [Citation.]” (People v. Peppars (1983) 140 Cal.App.3d 677, 687, fn. 5.)
Factual impossibility denotes conduct where the objective is proscribed by criminal law, but a circumstance unknown to the actor prevents him from bringing it about. (People v. Peppars, supra, 140 Cal.App.3d at p. 687, fn. 5.) “[F]actual impossibility is not a defense to a charge of attempt. [Citations.]” (Id. at p. 688.) For example, in People v. Van Buskirk (1952) 113 Cal.App.2d 789, the defendant argued that because he could not fire his gun due to mechanical difficulties, he was incapable of committing the crime of attempted murder. (Id. at p. 792.) The court disagreed, explaining: “[W]e think it clear that the defendant, with specific intent, made a direct, although ineffectual, act toward the commission of the crime with means and under circumstances appearing to make such crime possible of commission. No more than this is required under the law.” (Id. at p. 793.)
As defendant concedes, California law does not require an analysis of legal versus factual impossibility. Instead, the courts “[focus] their attention on the question of the specific intent to commit the substantive offense.” (People v. Meyers (1963) 213 Cal.App.2d 518, 523.) In order to be guilty of an attempt, “the defendant must have the specific intent to commit the substantive offense, and... under the circumstances, as he reasonably sees them, he does the acts necessary to consummate the substantive offense; but because of circumstances unknown to him, essential elements of the substantive crime are lacking. [Citations.]” (Ibid.)
Thus, in discussing this contention, we do not concern ourselves “with the niceties of the distinction between physical and legal impossibility.” (People v. Meyers, supra, 213 Cal.App.2d at p. 523.) Instead, we focus our analysis on the question of whether substantial evidence supports the jury’s conclusion that defendant intended to kill Maribel.
C. Defendant’s conviction is supported by substantial evidence
As set forth above, “‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the attempted killing.’ [Citations.]” (People v. Smith, supra, 37 Cal.4th at p. 739.) Defendant’s key argument is that, when he pointed the gun at Maribel, he knew, or must have known, that he was out of bullets. Thus, he could not have intended to kill Maribel.
In support of this position, defendant argues that he must have known that the gun had only six bullets, and he must have known that he already used all six of them. Defendant also argues that he could not have intended to kill everyone in Rosalia’s home, since he did not bring enough bullets. In addition, defendant argues, he chose to use multiple bullets on two victims -- three on Rosalia, and two on Fernando -- as well as one on Zenaida, leaving him none to kill Maribel or anyone else. Finally, defendant argues that if he really intended to shoot Maribel, he could have shot her the first time he pointed the gun at her, rather than choosing to use his last two bullets on Fernando.
Defendant’s arguments do not persuade us that the jury’s verdict was unsupportable. Intent to kill may be “inferred from the defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions....’ [Citations.]” (People v. Smith, supra, 37 Cal.4th at p. 741.)
The jury was presented with evidence that defendant had threatened to harm Rosalia’s family in the weeks leading up to the shooting. On the day of the shooting, he entered Rosalia’s home armed with a loaded gun. He shot Rosalia’s mother, then shot Rosalia three times. He aimed the gun directly at Maribel, but then his attention shifted to Fernando when Fernando came out of the bathroom. Defendant shot Fernando and immediately turned the gun back to Maribel. After Maribel walked toward the refrigerator and got down on her knees, defendant pulled the trigger twice. It was only after he realized that the gun was empty that defendant walked out of the house, throwing the gun in the living room.
The jury was entitled to infer from these events that defendant intended to kill Rosalia’s family members as well as Rosalia. The jury was also entitled to conclude that, if he knew the gun was out of bullets, defendant would have walked away from the scene rather than bothering with the ineffective acts of pointing the gun at Maribel and pulling the trigger twice. Reviewing this evidence in the light most favorable to the judgment, we conclude that a reasonable trier of fact could have found that defendant had the requisite intent. (People v. Davis, supra, 10 Cal.4th at p. 509.)
“‘If the verdict is supported by substantial evidence, we must accord due deference to the trier of fact.’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We therefore affirm the jury’s conclusion that the evidence revealed a specific intent to kill Maribel.
II. Ineffective assistance of counsel claims
Defendant next contends that reversal is required because defense counsel was ineffective. Defendant argues that counsel was ineffective in conceding that defendant was guilty of attempting to murder Maribel, and in failing to request an instruction on legal impossibility. We discuss each contention separately, and conclude that defendant’s claims of ineffective assistance of counsel must fail.
A. Standard of review and general principles
To establish ineffective assistance of counsel, a defendant must show that his counsel’s representation was below an objective standard of reasonableness under prevailing professional norms and that he was prejudiced by counsel’s deficient performance. (People v. Carter (2003) 30 Cal.4th 1166, 1211; Strickland v. Washington (1984) 466 U.S. 668, 694.) If the defendant makes an insufficient showing on either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.) Prejudice is shown when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (In re Sixto (1989) 48 Cal.3d 1247, 1257; Strickland, supra, at p. 694.)
A reviewing court accords great deference to counsel’s tactical decisions. We must presume that counsel’s conduct “‘falls within the wide range of reasonable professional assistance.’” (In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington, supra, 466 U.S. at p. 689.)
B. Counsel’s concession regarding the attempted murder of Maribel
Defendant first challenges his counsel’s decision to concede to the jury that defendant fired at and intended to kill Maribel. While acknowledging that counsel’s tactic may have been reasonable with respect to the charges involving Zenaida, Rosalia, and Fernando, defendant argues that it was not a reasonable tactic as to Maribel. Defendant argues that the facts as to Maribel are distinguishable because (1) Maribel was the only one who was not shot; (2) Maribel was the only one whom defendant pretended to shoot with an unloaded gun; and (3) defendant did not have a potentially meritorious defense against any other murder or attempted murder.
Counsel’s tactical decision to concede various degrees of guilt generally does not amount to ineffective assistance. (People v. Freeman (1994) 8 Cal.4th 450, 498 [“Recognizing the importance of maintaining credibility before the jury, we have repeatedly rejected claims that counsel was ineffective in conceding various degrees of guilt”]; see also People v. Mayfield (1993) 5 Cal.4th 142, 177 [not unreasonable to seek to avoid the death penalty by seeking a conviction on one count of second degree murder and one count of involuntary manslaughter, when the prosecution’s evidence put defendant at grave risk of two first degree murder convictions].) In “cases involving concessions made by defense counsel... where the incriminating evidence was strong and counsel offered some other choice in defendant’s favor, ” a claim of ineffective assistance may be rejected. (People v. Hart (1999) 20 Cal.4th 546, 631.)
Here, the evidence against defendant was overwhelming. The sole issue at trial was whether defendant was guilty of first or second degree murder. Counsel reasonably assumed that, after considering the evidence, the jury would have found defendant guilty of the attempted murder of Maribel. Counsel’s tactical decision to admit that defendant attempted to murder Maribel was not unreasonable, as it allowed counsel to maintain credibility with the jury. Considering the evidence in this case, if counsel attempted to argue to the jury that defendant was only “pretending” to shoot Maribel, counsel would have risked alienating the jury. Counsel’s tactics did not fall below an objective standard of professional norms.
C. Counsel’s failure to request an instruction on legal impossibility
Defendant further argues that he had a “strong potentially meritorious defense” to the charge of attempting to murder Maribel -- the defense of legal impossibility. Defendant points out that ineffective assistance may be found where counsel’s acts or omissions result in the failure to pursue and develop a fundamental defense. (People v. Corona (1978) 80 Cal.App.3d 684, 721.) The test of whether counsel was ineffective in such a case is “whether the defense withdrawn from the case was a crucial one.” (Id. at p. 723.)
The defense of legal impossibility is not relevant here. As explained above, the doctrine of legal impossibility applies where “the goal of the actor is not criminal, although he believes it to be.” (People v. Peppars, supra, 140 Cal.App.3d at p. 687, fn. 5.) Murder and attempted murder are criminal acts. (§§ 664, 187.) Defendant did not articulate to the jury any persuasive noncriminal goal that could have resulted from defendant’s decision to aim a gun at Maribel and pull the trigger. Nor could counsel have made such an argument and maintained credibility before the jury. Absent a plausible argument regarding legal impossibility, counsel’s failure to request an instruction on this defense could not possibly have affected the outcome. Thus, defendant’s argument regarding ineffective assistance of counsel must fail. (People v. Carter, supra, 30 Cal.4th at p. 1211.)
In his Reply brief, defendant argues that he “could have reasonably believed that pretending he intended to kill Maribel would frighten her into submission and thereby deter her from screaming for help or otherwise attempting to prevent him from escaping.” Under the circumstances, counsel’s tactical decision not to present this argument to the jury was well within the range of reasonable under prevailing professional norms.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.