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People v. McDuffie

California Court of Appeals, Second District, Fourth Division
Sep 16, 2008
No. B201978 (Cal. Ct. App. Sep. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. TA082696, Ronald V. Skyers, Judge.

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.


EPSTEIN, P. J.

Antwain Stephan McDuffie appeals his convictions for first degree murder and possession of a firearm by a felon. He argues the trial court erred in failing to dismiss the venire and failing to instruct sua sponte on proximate cause. He also argues the record lacks substantial evidence to support the finding that he proximately caused the victim’s death, because no evidence was introduced to show the victim received adequate medical care. We shall order the trial court to correct a clerical error in the abstract of judgment; in all other respects, we shall affirm.

The abstract of judgment states that defendant was convicted of first degree burglary, the conviction was of first degree murder.

FACTUAL AND PROCEDURAL SUMMARY

On the night of November 20, 2005, Tequila Sorrels met her brother Terry Sorrels on the street at the Jordan Downs housing project. Terry was a member of the Grape Street Crips street gang. Terry told Tequila that appellant, a fellow Grape Street Crips member, had been speaking disrespectfully to him and that he was going to beat appellant up. Appellant was standing on the sidewalk next to a parking lot with another Grape Street Crips member, Eric Brown. Eric Gee, a fourth Grape Street Crips member, was standing across the street.

To avoid confusion, we refer to Tequila and Terry Sorrels by their first names.

Tequila’s companion Serena, with whom Terry was in a relationship, remained with Terry when Tequila departed. Tequila returned a few minutes later and went home with Serena, leaving Terry with appellant, Brown and Gee.

The following facts are taken from an audiotape of Brown’s interview with police detectives. The tape was admitted into evidence and played to the jury.

Brown attempted to dissuade Terry from fighting appellant. Terry appeared to relent, then appellant said something disrespectful and Terry punched him twice in the face. Appellant drew a gun from his back pocket and shot Terry once in the head. Terry fell to the ground. Appellant stood over him and shot him in the chest. Appellant remained standing over Terry for 10 seconds, then drove away.

Tequila’s home was nearby, and shortly after she arrived she heard pounding on her front door and someone saying, “Quila, they just shot your brother.” Tequila’s mother ran out the door, and Tequila followed after she told her best friend to look after her baby. She found her mother holding Terry in the parking lot. Terry was bleeding from his head and chest. Appellant and the other Grape Street Crips members were not present, and Tequila did not see appellant in Jordan Downs again. Terry was taken to a hospital, where he died a few days later.

In March 2006, Los Angeles Police Department officers, in cooperation with Nevada authorities, arrested appellant in Las Vegas and brought him to Los Angeles. Appellant was charged with one count of murder (Pen. Code, § 187, subd. (a)) and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)). As to the murder charge, it was further alleged appellant personally and intentionally discharged a firearm in commission of the offense, proximately causing great bodily injury and death. (§ 12022.53, subd. (d).)

All further statutory references are to the Penal Code.

In July 2007, a jury found appellant guilty on all charges and found the firearm use special allegation true; the murder was found to be in the first degree. Appellant was sentenced to prison for a term of 50 years to life with a concurrent two-year term pursuant to section 12021, subdivision (a)(1). This appeal followed.

DISCUSSION

I

Appellant argues the trial court erred in failing to discharge the venire; he suggests its members were biased due to concerns for their own safety. “An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is ‘“capable and willing to decide the case solely on the evidence before it.”’ [Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) “[D]ischarging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant.” (People v. Medina (1990) 51 Cal.3d 870, 889.) “[T]he trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required.” (Ibid.; see People v. Martinez (1991) 228 Cal.App.3d 1456, 1466-1467 [denial of motion to dismiss jury panel reviewed for abuse of discretion].)

At the beginning of the third day of jury selection, the trial court asked the prospective jurors to indicate, by raising their hands, whether any of them had seen or heard “any situation outside of the courtroom that either made you concerned or that you discussed with others or someone called in about it.” Several prospective jurors raised their hands, and the court questioned each of them individually, outside the presence of the other prospective jurors.

Prospective Juror No. 13 stated that some of the other prospective jurors felt intimidated by a young man sitting in the back of the courtroom. These prospective jurors were concerned about giving out their personal information during jury selection. Prospective Juror No. 13 stated that the incident did not bother him and that it would not affect how he heard the case.

Prospective Juror No. 5251 saw a man in the back of the courtroom use a cellular phone, exit the courtroom and return. As the prospective jurors went to the parking lot, a female prospective juror said that man had been taking pictures. Prospective Juror No. 5251 initially indicated uncertainty about being able to put aside fear for her personal safety, but later stated she could put the incident aside and deal with the case on its facts.

Prospective Juror No. 5388 was with two other prospective jurors in the court parking structure when a woman drove by and said, “I just wanted you girls to know that that guy was taking pictures of us.” She initially stated she would be unable to put the incident aside for purposes of judging the case, but later said she could put it aside and would have no problem listening to everything and making a fair judgment.

Prospective Juror No. 6 felt unsafe from the first day of trial, appeared visibly upset and on the verge of tears, and indicated an inability to put the incident aside. The trial court dismissed that prospective juror.

Prospective Juror No. 9536, while waiting for an elevator, overheard a male voice saying, “you have all these jurors and no witnesses.” Prospective Juror No. 9536 said nothing about that statement would cause bias.

Prospective Juror No. 8552 saw a man in the back of the courtroom using his cellular phone, later heard that man had been taking pictures, and overheard another man yelling at the jurors. That prospective juror stated an inability to judge the case on the facts alone and was dismissed.

Prospective Juror No. 6715 saw a man about whom other prospective jurors had talked sitting in the back of the courtroom, but that prospective juror said he or she could judge the case purely on the evidence.

Prospective Juror No. 6739 saw a man in the back of the courtroom using a cellular phone, and later overheard that he had been taking pictures. That prospective juror initially said he or she would be biased against the defendant and unable to put the incident aside, but later said, “if you guys need me to judge this case impartially I will do it to [sic] however I can.”

Prospective Juror No. 4224 observed a man yelling about witnesses. That prospective juror did not want to be around that sort of conduct, but said he or she would be all right and would probably not be biased.

Prospective Juror No. 1085 observed a man and a woman in the hall saying “something along the lines of these people haven’t been in any gangs, they don’t know what they’re talking about.” That prospective juror could put the incident aside and be fair.

Prospective Juror No. 3155 saw a young man who appeared to be taking pictures with his cellular phone. She said she would “perhaps not” be biased because of that incident, and would be able to put it aside to judge the case on the evidence.

Prospective Juror No. 7788 was approached by a woman in the elevator area and asked if she had seen a person with a camera or phone in the back of the courtroom. She stated the incident would not affect her or prevent her from judging the case fairly.

Finally, Prospective Juror No. 8831 overheard someone complaining in the elevator area. That incident would not prevent him or her from being fair and impartial.

Appellant moved to disqualify the entire jury panel. The trial court noted it had released the two prospective jurors who clearly indicated they could not be fair after the incident, and denied the motion.

Appellant argues the incidents described by the prospective jurors created an environment of fear that affected the entire venire. The trial court interviewed every prospective juror who claimed knowledge of those incidents; 10 of those prospective jurors indicated they could decide the case fairly, and the remaining two were dismissed. “‘Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors.’ [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 414.)

Appellant argues the fact that 12 prospective jurors were interviewed by the court indicates the existence of serious bias or prejudice against him. The mere fact that 12 prospective jurors were interviewed does not indicate prejudice against appellant, particularly when the trial court dismissed the prospective jurors who said they could not be fair. The trial court did not abuse its discretion in denying the motion to discharge the venire.

II

Appellant argues there is a lack of substantial evidence to support the finding that his actions caused the death of Terry. “‘The criminal law . . . is clear that for liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant’s act.’ [Citation.] In determining whether a defendant’s acts were the proximate cause of the death of a human being, we ask whether the evidence sufficed to permit the jury to conclude that the death was the natural and probable consequence of defendant’s act. [Citation.]” (People v. Taylor (2004) 119 Cal.App.4th 628, 639-640.) “We review insufficient-evidence contentions in criminal cases by viewing the evidence in the light most favorable to the judgment and deciding whether there is substantial evidence from which a reasonable trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. [Citations.]” (Id. at p. 639.) Substantial evidence is reasonable, credible and of solid value. (People v. Whisenhunt (2008) 44 Cal.4th 174, 200.)

Appellant shot Terry in the head and chest. A forensic pathologist testified that both wounds were fatal in nature, but also said they were potentially survivable with proper medical care. Appellant argues the prosecution presented no evidence that Terry received such care. But whether Terry received proper medical care is irrelevant because “‘[i]f a person inflicts a dangerous wound on another, it is ordinarily no defense that inadequate medical treatment contributed to the victim’s death.’ [Citations.]” (People v. Stanley (2006) 39 Cal.4th 913, 946.) The conclusion that appellant’s shooting Terry in the head and chest proximately caused his death is supported by substantial evidence.

III

Appellant argues the trial court erred in failing to instruct the jury, on its own initiative, according to CALJIC Nos. 8.55 and 3.40. “Trial courts only have a sua sponte duty to instruct on ‘the general principles of law relevant to and governing the case.’ [Citation.] ‘That obligation includes instructions on all of the elements of a charged offense’ [citation], and on recognized ‘defenses . . . and on the relationship of these defenses to the elements of the charged offense.’ [Citation.]” (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) “The trial court’s duty to instruct on general principles of law and defenses not inconsistent with the defendant’s theory of the case arises only when there is substantial evidence to support giving such an instruction. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 835.)

CALJIC No. 8.55 states: “To constitute [murder] [or] [manslaughter] there must be, in addition to the death of a human being, an unlawful act which was a cause of that death.

Appellant contends the court was required to instruct on proximate cause because the victim’s wounds were potentially survivable with proper medical care. But as we have discussed, whether the victim received such care is not relevant to whether appellant proximately caused his death. Substantial evidence does not support giving an instruction on proximate cause, and the trial court was not required to do so. (People v. Funes (1994) 23 Cal.App.4th 1506, 1523-1524 [as matter of law, decision to withhold antibiotics from murder victim was not independent intervening cause of death, and trial court did not err in refusing proximate cause instruction].)

IV

Respondent points out that the abstract of judgment incorrectly states a conviction for “first degree burglary” instead of first degree murder. We shall order an appropriate correction. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

The judgment is affirmed. The trial court is directed to correct the abstract of

judgment to reflect that appellant was convicted of first degree murder, and to forward the corrected abstract to the Department of Corrections and Rehabilitation.

We concur: WILLHITE, J., SUZUKAWA, J.

CALJIC No. 3.40 states: “[To constitute the crime of ______ there must be in addition to the (result of the crime) an unlawful [act] [or] [omission] which was a cause of that (result of the crime).]

“The criminal law has its own particular way of defining cause. A cause of the (result of the crime) is an [act] [or] [omission] that sets in motion a chain of events that produces as a direct, natural and probable consequence of the [act] [or] [omission] the (result of the crime) and without which the (result of the crime) would not occur.”


Summaries of

People v. McDuffie

California Court of Appeals, Second District, Fourth Division
Sep 16, 2008
No. B201978 (Cal. Ct. App. Sep. 16, 2008)
Case details for

People v. McDuffie

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTWAIN STEPHAN McDUFFIE…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Sep 16, 2008

Citations

No. B201978 (Cal. Ct. App. Sep. 16, 2008)