Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN250392 Runston G. Maino, Judge.
BENKE, Acting P. J.
The appellant in this case ran up to a car driven by an acquaintance. The acquaintance had dated appellant's girlfriend and appellant had been looking for him for a number of days. Although a recently released felon, appellant was carrying a gun, which he pulled out as he approached the acquaintance's car. When he was within two to three feet of the car, appellant fired a single shot into the driver's side window. The bullet shattered the driver's side window, missed appellant's acquaintance, who was in the driver's seat, and fatally wounded a passenger. At trial, appellant took the stand and admitted shooting into the car, but claimed the gun fired accidentally.
On appeal from his convictions of second degree murder, attempted murder and shooting at an occupied vehicle, appellant contends the trial court erred in admitting evidence which showed the gun used in the homicide was, at some point in the past, fired at the home where appellant lived. Appellant also argues the trial court erred in responding to a jury question by referring the jury to the instructions the court provided. Finally, appellant contends there was insufficient evidence he intended to shoot the gun. As we explain more fully below, we reject appellant's contentions and affirm the judgment of conviction.
STATEMENT OF THE CASE
A jury convicted appellant Frank Lewis of the second degree murder of Elizabeth Culbertson (Pen. Code, § 187, subd. (a); count 1), the attempted murder of his acquaintance Fred Bostick (§§ 664/187, subd. (a); count 3), and shooting at an occupied vehicle (§ 246; count 2). In addition, the jury found that in committing the murder and attempted murder, Lewis intentionally and personally discharged a firearm (§ 12022.53, subd. (d)) and caused great bodily injury and death to a person; the jury also found that in shooting at an occupied vehicle, Lewis personally discharged a firearm. Lewis was sentenced to a total of 103 years to life in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL BACKGROUND
In 2006 through 2007, while Lewis was in prison, he became acquainted with Bostick. Later, in 2008, while Lewis was in prison for a parole violation, Bostick began dating Lewis's girlfriend Shannon Butler. When Lewis was released from prison in 2008, he was upset Bostick dated Butler.
In August 2008, Lewis told Michael Maynard and Gary Gonzales he was looking for Bostick and was going to "get" him. Maynard and Gonzales warned Bostick Lewis was angry with him and was looking for him. On the evening of August 28, 2008, Lewis was visiting Maynard. Lewis asked Maynard for polishing compound. Maynard gave it to him and Lewis began polishing six or seven bullets. Lewis then showed Maynard a 9 millimeter semi-automatic pistol. Both Butler and Maynard's girlfriend Cindy Cockrell were present at Maynard's home that evening.
The following morning, August 29, 2008, Lewis, along with Butler and Paul Alvarado, were driving in Lewis's truck toward Gonzales's junk yard on the Pala Indian Reservation. Lewis was driving the truck, Butler was in the passenger seat and Alvarado was in the rear seat. As they approached the junk yard, they saw Bostick driving his car out of the junk yard and heading towards them on the narrow two-lane road. Bostick was driving the car and Culbertson was in the passenger's seat next to him.
When Lewis saw Bostick, Lewis said something to the effect, "I will show him now, " and swerved in front of Bostick's car, which then stopped in the road. Lewis got out of his truck carrying his gun, which was covered by a blue cloth. Lewis ran towards the driver's side of Bostick's car, yelled "you mother-fucker, " and when he was two or three feet away from the driver's side window, fired one shot into the car. The bullet missed Bostick, but hit Culbertson in the left arm, traveled through her left chest and lodged in her right chest cavity. Culbertson died from her wounds.
Lewis returned to his truck and drove away. Later that day, he went to Maynard's house, where he told both Maynard and Cockrell he shot Bostick. Lewis did not mention to either Maynard or Cockrell that the shooting was an accident.
The shooting was observed by Gerardo Reyes, who was sitting outside his trailer about 100 feet from where Lewis fired his gun. Reyes saw Lewis pull his truck in front of Bostick, get out of his truck and point or push his gun toward the driver's side window. Reyes did not hear the sound of the shot, but only the sound of glass breaking. Another witness, David Long, was working at the junkyard, heard a gun shot and saw Lewis run back to his truck with a semi-automatic pistol in his hand.
Police investigators obtained a warrant and searched Butler's home, which she shared with Lewis. The investigators found a dresser in the master bedroom with a bullet hole in its side. The investigators retrieved a bullet from inside the dresser and later determined both it and the bullet that killed Culbertson were fired from the same gun.
At trial, Lewis testified that although he approached Bostick's car with a loaded gun and intended to frighten Bostick, the gun fired accidentally. Lewis stated that when he approached the car, Bostick locked the car doors and closed the car windows and that in anger he swung the gun towards the car and that the gun fired when the tip of the gun hit the driver's side window.
Lewis testified that earlier the gun misfired into the dresser when he slammed a magazine into the bottom of the gun. Lewis also offered testimony from a friend, Arnold Bacon. Bacon testified he was at Butler's home working on a car when he heard a gun shot, went inside and found that Lewis accidentally fired the gun into Butler's dresser.
DISCUSSION
I
In his first argument on appeal, Lewis contends the trial court abused its discretion in permitting the prosecutor to introduce evidence of the "dresser shooting" investigators discovered when they searched Butler's home. The trial court admitted the dresser shooting evidence on the theory that it showed Lewis was familiar with the weapon and its propensity to accidentally fire and would therefore be careful with it in the future.
Lewis contends that because, at the time evidence about the dresser shooting was introduced, the prosecutor did not offer any evidence which showed that in fact Lewis fired the gun at Butler's dresser, there was no foundation for introduction of the evidence. We find no abuse of discretion and we further conclude that in any event Lewis was not prejudiced by the introduction of evidence about the dresser shooting.
A. Governing Principles
"Of course, only relevant evidence is admissible. [Citation.] Sometimes the relevance of evidence depends on the existence of a preliminary fact. [Citations.] The court should exclude the proffered evidence only if the 'showing of preliminary facts is too weak to support a favorable determination by the jury.' [Citation.] The decision whether the foundational evidence is sufficiently substantial is a matter within the court's discretion. [Citations.]" (People v. Lucas (1995) 12 Cal.4th 415, 466; see also Evid. Code, §§ 350, 403, subd. (a).)
B. Analysis
Contrary to Lewis's argument on appeal, there was sufficient evidence at the time the dresser shooting evidence was offered to support the inference Lewis fired the gun at the dresser and that admission of the prior shooting was therefore relevant with respect to Lewis's familiarity with the weapon and its propensity to accidentally discharge. There is no dispute Lewis lived with Butler at or near the time of the murder of Culbertson. Similarly, there is no serious dispute that on the day before the murder Lewis had a semi-automatic pistol in his possession and was polishing bullets for it. Finally, there is no dispute that the weapon used to shoot the dresser was the same weapon Lewis used to shoot at Bostick's car. Given these facts, a reasonable trier of fact could conclude Lewis, as the possessor of a gun which he handled in front of other witnesses prior to the homicide, fired it both at the dresser in the home where he was living and later at Bostick's car.
However, as the Attorney General suggests, even if the trial court erred in admitting evidence of the dresser shooting, it did not prejudice Lewis. The absence of prejudice stems of course from the fact the prior shooting was offered to show Lewis was familiar with the gun and its propensity to accidentally fire. As the trial court noted, the accidental discharge proved by the prosecution actually supported Lewis's defense: "I think there's some relevance here in normally you don't shoot your own furniture. If you do, I suppose you could argue it's an accident. That helps [the defense]. [¶] But on the other hand, if you had a gun go off accidently because of a hair trigger, it's something you are normally super careful with [the gun] the next time. I think it cuts both ways. It has relevance. It's up to the jury what they do with it."
Given the conflicting inferences to be drawn from the dresser shooting, it is difficult to accept the proposition its admission materially undermined Lewis's claim the gun accidentally discharged at the scene of the murder. It bears noting as well that the jury was presented with evidence of Lewis's threatening statements about Bostick, his bullet polishing on the evening before the murder and his own admission he pointed the gun at Bostick's car. In this context, evidence of what was manifestly a prior accidental shooting of the gun, while of some relevance, was only indirectly probative of the issues presented to the jury. In sum, we are unwilling to find prejudice in admission of evidence which was in some respects advantageous to Lewis and only touched on a subsidiary issue.
We also reject Lewis's contention he was prejudiced because in the absence of the dresser shooting evidence he would not have testified about it or offered his friend Bacon's testimony about it. Lewis's explanation of the dresser shooting, and Bacon's corroboration, fully supported his accidental shooting defense and the fact he may have been compelled to present it in no way prejudiced his defense.
In short, the trial court did not err in admitting the dresser shooting evidence, which in any event did not prejudice Lewis's defense.
II
Lewis contends that in responding to a question from the jury about intent, the trial court erred in simply referring the jury to the instructions the trial court provided. We find no abuse of discretion.
A. Background
While the jury was deliberating, it sent the trial court a note which stated: "Could you provide us an interpretation of 'intent[.]' Thanks." In response to the note, the trial court met with the parties and counsel and stated: "On the record. The parties are present, as is Mr. Lewis. [¶] We have received a question from the jury asking about a further definition of intent. I did suggest to the parties three solutions. One came from Black's Law Dictionary, the other from Webster's, and the third one from a treatise on California law. I think when you look at the use notes, they are not helpful in answering what the jury asked us or need me to provide."
Although the prosecutor stated he had no objection to any of the responses suggested by the trial court, defense counsel objected to all of them. For her part, defense counsel suggested the trial court refer the jurors to the instruction on circumstantial evidence regarding intent and mental state (CALCRIM No. 225). The prosecutor however objected to any reference to a specific instruction. As an alternative response, counsel then suggested the trial court simply refer the jurors to the instructions they were given. The trial court adopted defense counsel's second choice and sent the jury a written response which stated: "At this time, please refer to the instructions given to you."
CALCRIM No. 225 states: "The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/[and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state) required.
B. Legal Principles
Section 1138 states in pertinent part: "After the jury has retired for deliberation, ... if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." The statute imposes a "mandatory" duty to clear up any instructional confusion expressed by the jury. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.)
However, where "the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53 Cal.3d 68, 97; see also People v. Davis (1995) 10 Cal.4th 463, 522; People v. Gonzalez, supra, 51 Cal.3d at p. 1213.) Our courts have repeatedly approved of responses to jury questions which refer the jury to the instructions provided by the trial court. (See People v. Gonzalez, supra, 51 Cal.3d at p. 1213 [trial court properly responded to request for elaboration on malice by rereading malice and homicide instructions]; People v. Davis, supra, 10 Cal.4th at pp. 521-522 [trial court responded to question about whether defendant could have committed sodomy on dead person by rereading instruction on issue]; People v. Hill (1992) 3 Cal.App.4th 16, 25-26 [trial court responded to question about conspiracy by directing jury to reread conspiracy instructions and consider them in the light of all the other instructions].)
C. Analysis
First, we note that in asking that the trial court simply refer the jury to the instructions it was given, defense counsel did not implicitly waive her request that a more specific reference to CALCRIM. No. 225 be given in response to the jury's question. It is plain from the record that in light of the prosecutor's objection, the trial court was unwilling to give the specific reference defense counsel preferred and Lewis's counsel's request for it was not waived. Thus, although on appeal Lewis does not set forth what response he believes the trial court should have provided, we interpret his argument on appeal as a contention that instead of the general reference to all the instructions it was given, the jury should have been referred more specifically to CALCRIM No. 225, as his attorney requested in the trial court.
We find no abuse of discretion in the trial court's decision to adopt defense counsel's alternate suggestion. The instructions provided by the trial court were full and complete and Lewis objected to the trial court's suggestion that they be amplified with dictionary and law treatise definitions. We also note defense counsel did not request the trial court make any further inquiry of the jury, but rather only requested that the jury be specifically referred to CALCRIM No. 225, which provides guidance with respect to how circumstantial evidence may prove intent. In ultimately choosing to instead refer to all its instructions, which necessarily included a description of the mental state needed for each of the crimes charged, the trial court acted reasonably in thereby encouraging the jury to consider the instructions as a whole and in that manner come to a better understanding of what it needed to find in order to determine Lewis's guilt or innocence. (See CALCRIM No. 101: instructions to be considered as a whole.)
Moreover, we do not find any possible prejudice in the trial court's reference to all its instructions as opposed to Lewis's preference for CALCRIM No. 225. Because CALCRIM No. 225 merely instructs the jury about how circumstantial evidence may be considered in determining intent, rather than providing any definition of intent, Lewis was not harmed by the trial court's reference to all instructions and their further references to required mental states and intent. (See People v. Beardslee, supra, 53 Cal.3d at p. 97 [no prejudice where subject of question covered by instructions provided].)
III
Finally, Lewis argues there was insufficient evidence he intended to shoot Bostick and thus insufficient evidence he was guilty of murder, attempted murder or shooting into an occupied vehicle. We reject this argument as well.
"On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " [Citations.]' [Citation.] ' "Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." ' [Citations.]" (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
Here, there was abundant evidence Lewis intended to shoot Bostick. Prior to confronting Bostick, Lewis, a felon, armed himself with a loaded automatic handgun and evidently took the precaution of polishing the bullets so that no fingerprints would appear on them. Prior to the shooting, Lewis inquired of mutual friends about Bostick's whereabouts and made threatening statements to them about his intention to "get" Bostick. When he saw Bostick on the road, he immediately swerved in front of Bostick, prevented Bostick from leaving and ran toward Bostick's car. Bostick testified he then saw Lewis, from a distance of two to three feet, shoot the gun at him. Following the shooting, Lewis fled the scene, and discarded the gun, rather than report any accidental shooting or otherwise attempt to summon help. Shortly thereafter, Lewis told Maynard and Cockrell about shooting Bostick and made no claim that the gun had gone off accidentally. Taken together, these facts demonstrate that Lewis had a well-known animus toward Bostick before the shooting and following the shooting acted in a manner far more consistent with an intentional rather than accidental shooter. Given this record, the jury could quite reasonably reject Lewis's accident defense and accept Bostick's testimony that Lewis intentionally shot into Bostick's car.
Arguably, the jury might have found that Lewis's accident defense was corroborated by the testimony of Reyes and Lopez, who witnessed aspects of the shooting, but in both instances from some distance. However, in light of the guilty verdicts it returned, the jury clearly adopted Bostick's version in which Lewis fired from two or three feet away from the car and accident played no role. On this record the jury could reasonably do so.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., AARON, J.
"A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence.
"Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."