Opinion
G030636.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES DANIEL MANDAGIE, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia Garcia and Stacy A. Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant shot the victim in the face and now appeals from his conviction of attempted murder, assault with a semiautomatic firearm and possession of a firearm by a felon. Despite his protestation the gun went off accidentally, there is sufficient evidence to sustain the jurys verdict. His statements to the police were properly permitted into evidence since he never sufficiently or clearly indicated that he wanted legal representation. The trial court did not err in instructing the jury attempted voluntary manslaughter requires an intent to kill because that crime requires specific intent, as do all attempt crimes. We affirm.
I
FACTS
As of April 30, 2001, Joseph Jurich had lived with his older sister, Robin Valdez, in her home in Garden Grove for a few years on and off. During that period, he became acquainted with defendant James Mandagie who was dating his niece, Emily Valdez.
According to Jurich, he and defendant had a friendly relationship until that day, when he came home and defendant accused him of having an attitude. At that point, the two started arguing, and Jurich turned toward the back door saying he was going outside. Defendant said to Jurich, ". . . [A]re you calling me out?" Jurich responded, ". . . [I]f you want to go outside and talk about it, we will go outside." Defendant said he was going to get his shoes, and Jurich went out of the house.
While petting his dog in the yard, Jurich saw and heard his niece, Emily Valdez, and defendant walking back and forth arguing in the front yard. Jurich said defendant looked back toward him and made a motion with one of his fists pushing against his other hand. Jurich tried to enter the house through a back door and found it locked. He hopped the fence and proceeded toward defendant, and defendant smiled at him. Jurich then went inside the house and sat down on the couch for less than a minute. After thinking about the situation, Jurich went outside again and walked toward defendant and his niece. He was five or six feet away from defendant. "And I said, [`]James, whats going on[?],[] and I put my hands out, and he said, [`][Y]ou know what, Joey,[] and I just seen his hand and thats when I got shot." Defendant came over to Jurich and told him it was an accident. Jurichs right mandible was shattered, and the bullet exited through the back of his neck.
Teenager Lisa Valdez, another of Jurichs nieces, had seen defendant showing off a gun a couple of times prior to the day of the shooting. On April 30, right after Jurich first went out back, Lisa Valdez saw defendant go into Emily Valdezs bedroom, where he stayed for less than a minute. When he exited the bedroom, he was pushing something in his waistband area. After defendant stepped outside, Lisa Valdez heard defendant say in a loud tone of voice, "Tell Joey to come out here and I will pistol whip him." When she heard the shot, she ran outside, and saw defendant running away.
Victor Nagy, an old time friend of defendant who also lived in Garden Grove, said he was taking a shower on April 30 when defendant came inside his house and into the bathroom. Defendant was very nervous, said he shot somebody and asked Nagy to give him a ride to Anaheim. Nagy agreed to give defendant a ride on the condition defendant turn his gun over to Nagy. When defendant gave the weapon to Nagy, Nagy wrapped it in a shirt and buried it in a pile of tires in his backyard. During the drive to Anaheim, defendant told Nagy, "Hey, man, it was just an accident, and we scuffled and I accidentally shot him in the face." Defendant explained the gun had a hair pin trigger.
A police interview of defendant took place after he was arrested. Defendant was advised of his rights. After confirming he understood his rights, defendant twice inquired, "Do you have an attorney here?" The detective asked, "No. Is that what youre asking for?" Defendant then said, "Well, I dont know. The attempted murder case . . . ." The detective then said, "Well, before we go any farther, James, if thats what youre asking for, then were pretty much done." Another detective added, "Are you just wondering whether we have attorneys here at the police department or — or are you asking for an attorney?" Defendant responded, "Ill — Ill — Ill answer some of your statements but when — when it involves anything incriminating myself or anything like that, Im gonna have an attorney. So — . . . [¶] . . . [¶] Well, you know what I mean? You got to understand. I mean —." The detective said, "Its either you want to talk to us and tell us your side of the story or you want an attorney. Okay? I — I cant say I can talk to you [to] a certain point. I dont know when you think its incriminating. So, you know, I need to know from you. If you want an attorney, you want an attorney. If you dont want [an attorney] and want to tell me your side, then —." Defendant responded, "Ill tell you — Ill tell you my side of the story." The detective then asked defendant to tell his side of the story.
Before trial, defendants attorney moved to exclude defendants statement to the police. The trial court ruled: "Well, in terms of constitutional rights, I think the fairly recent case of People versus Box, B-O-X, at 23 Cal.4th, 1153, has a good discussion of the issues on page 1192 through 1195 on Miranda [Miranda v. Arizona (1966) 384 U.S. 436] issues. [¶] I think this transcript, its pretty clear that the defendant is not making it clear whether he wants counsel or whether he wants to remain silent. His answers are ambiguous. [¶] Therefore, I would think that the case falls within the ambit of those U.S. Supreme Court cases discussed in People versus Box where the police are allowed to continue questioning until the defendant makes it clear that he either wants counsel or he wants to remain silent, which he never does in this case. [¶] So, I dont see any indication of involuntariness of any kind. If you submit it to me on the transcript, I would deny it without other evidence, I would deny the motion to exclude under Evidence Code 405. [¶] [Defendants attorney]: Okay. [¶] The court: Because I think by the preponderance of the evidence its been shown from that transcript that the defendant did waive his Miranda rights and statements were voluntary. [¶] [Defendants attorney]: Okay."
At trial, Jimmy Turner, a firearms examiner with Orange County Sheriff Forensic Science Services, testified he examined the weapon involved. It is a nine-millimeter Beretta semiautomatic pistol. He said even with a magazine of bullets in the gun, it will not fire until it is cocked to get a bullet is in the chamber, no matter how many times the trigger is pulled. In order to do that, "[y]ou have to pull the slide totally rearward and let it go." Turner went on to explain that scientifically there is no such thing as a hair trigger, but a hair trigger is generally thought to be using pressure of less than one pound to pull the trigger of a firearm. He tested the Beretta used by defendant and found it did not have a hair trigger. Rather, it had a trigger pull of more than five pounds when the gun is cocked, and more than ten pounds when the double action of uncocking it and then pulling the trigger is used. Turner performed additional tests to ascertain whether the weapon was capable of "jarring off," or firing after it is banged or jolted, without the trigger being pulled, and concluded the Beretta was functionally normal.
Defendant did not testify. He was found guilty of attempted murder, assault with a semiautomatic firearm and possession of a firearm by a felon as charged in counts one, two and three, respectively, of the amended information. The jury found it to be true that defendant personally used a firearm, intentionally discharged a firearm and personally inflicted great bodily injury during the commission of count one. The jury also found it to be true he personally used a firearm and personally inflicted great bodily injury during the commission of count two. Defendant was sentenced to 39 years to life in prison.
On appeal, defendant raises three issues. From his view of the evidence, there was only enough to support an attempted manslaughter conviction, and there was insufficient evidence to support the attempted murder conviction. He also claims his statements to the investigating officers should have been excluded since the record indicates a desire for an attorneys representation. Finally, defendant argues the trial court erred in instructing the jury the offense of attempted voluntary manslaughter requires an intent to kill.
II
DISCUSSION
Sufficiency of the evidence
Defendant argues the evidence suggests he recklessly displayed a firearm, and it accidentally discharged. He contends there is insufficient evidence to support his attempted murder or assault with a firearm convictions.
In evaluating the sufficiency of evidence, our role is quite limited. "[T]he reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — 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. [Citations.] The appellate court presumes in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jurys duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] ""If the circumstances reasonably justify the trier of facts 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. [Citation.]"" [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
There was evidence defendant consciously armed himself immediately after agreeing to step outside, threatened to pistol whip Jurich and made a hostile gesture to the victim with his fist. There was also evidence that he either earlier cocked the gun and then used more than five pounds of trigger pull, or used more than ten pounds of trigger pull to both cock and discharge the Beretta, before he shot the victim. Immediately after shooting Jurich, a witness saw him fleeing from the scene. The jury obviously rejected the notion the gun was accidentally discharged. We do not accept defendants invitation to reweigh the evidence. There was sufficient reasonable, credible and solid evidence for a rational trier of fact to conclude defendant intended to assault with a firearm and intended to kill Jurich.
Defendants statements to the police
Defendant contends his statements to the police should have been excluded. From his view, the record indicates he demonstrated a desire for representation by an attorney.
"An appellate court applies the independent or de novo standard of review, which by its nature is nondeferential, to a trial courts granting or denial of a motion to suppress a statement under Miranda insofar as the trial courts underlying decision entails a measurement of the facts against the law. [Citations.] As for each of the subordinate determinations, it employs the test appropriate thereto. That is to say, it examines independently the resolution of a pure question of law; it scrutinizes for substantial evidence the resolution of a pure question of fact; it examines independently the resolution of a mixed question of law and fact that is predominantly legal; and it scrutinizes for substantial evidence the resolution of a mixed question of law and fact that is predominantly factual. [Citation.]" (People v. Waidla (2000) 22 Cal.4th 690, 730.)
"Invocation of the Miranda right to counsel `requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. [Citation.] But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." (Davis v. United States (1994) 512 U.S. 452, 459.) The suspect must state his or her "desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." (Ibid.)
Here, defendant never stated his desire to have counsel sufficiently clearly that a reasonable police officer in the circumstances would have understood any of his statements to be a request for an attorney.
Attempted voluntary manslaughter instruction
Defendants last contention is the trial court erred in instructing the jury that attempted voluntary manslaughter requires an intent to kill. According to him, an intent to kill is not an element of the offense of voluntary manslaughter.
In support of his argument that attempted voluntary manslaughter does not require an intent to kill, defendant cites People v. Lasko (2000) 23 Cal.4th 101. His reliance on Lasko is misplaced. In Lasko, the Supreme Court did say that voluntary manslaughter does not always require an intent to kill because a person can commit that crime when acting with "conscious disregard for life" that falls short of an actual intent to kill. (Id. at 104, 110.) The Lasko court also stated voluntary manslaughter can still involve an intent to kill, though sometimes mitigated. (Id. at 108.) But the Lasko court said nothing about attempted voluntary manslaughter, the crime committed by defendant. "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (Pen. Code, § 21a.) Thus, while a completed voluntary manslaughter might, under some circumstances, be unintentional, an attempted voluntary manslaughter may not.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: FYBEL, J. and IKOLA, J. --------------- Notes: In his opening brief, defendant claims Jurich testified at trial he believed the shooting was accidental. But the only record reference for this contention is the posttrial Probation Report, which notes that after Jurich spoke with the probation officer, she noted, "Joseph believes it was an accident and he feels lucky to be alive."