Opinion
A146672
03-22-2018
THE PEOPLE, Plaintiff and Respondent, v. STANLEY MOORE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC189712A)
Defendant Stanley Moore appeals from a final judgment following a court trial, raising one issue: was the evidence sufficient to find him guilty of attempted murder? We conclude the answer is yes. In a petition for rehearing, Moore asks the court to remand the case to allow the trial court to consider the application of newly enacted Senate Bill No. 620, which gives trial judges discretion in imposing sentencing enhancements for firearms. We remand the matter for further consideration of the sentencing issue and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Moore was charged with multiple crimes arising out of an incident in a parking lot on July 19, 2014.
David Williams was the sales manager for a fireplace store in Mill Valley. As a courtesy to clients, Williams would hand out business cards of subcontractors who could install the fireplaces. One of those subcontractors was defendant, a plumber. At the time of the incident, Williams had known defendant for several years and they had a troubled history. Defendant had confronted Williams several times about handing out his business cards. In 2008, defendant accused Williams of favoritism to another contractor. Williams replied that his practice was to staple two business cards to every brochure, and it was up to the client to make the contact, not him. This did not mollify defendant. There were two or three more conversations between 2008 and 2014 where defendant said he needed more business and asked Williams what was going on and why was he not getting referrals. Williams testified to a particular phone call in 2012 when defendant was "[v]ery irate, very intense" and threatened to "come down there and kick your ass." And on one other occasion, defendant threatened him physically, but Williams did not remember precisely when. Williams testified that defendant had once threatened to beat him "long and hard."
July 19, 2014 was a Saturday, and at about 4:00 p.m. (store closing time) Williams was in the process of closing up and securing the facilities for the night. He walked out the back door and went over to his car when he saw defendant in his truck parked alongside the building with the window down. It was a hot day, and Williams made a joking comment to defendant as to whether he was working on his suntan. Defendant called Williams over to his truck. When Williams walked over and was about two feet away and asked what defendant wanted, he said "you ruined my life . . . I'm not making any money. I don't have any place to live and it's your fault. I'm going to kill you."
Williams expressed shock, and defendant said "come here." Williams took another step closer and defendant, with his hands in his lap, turned over his left hand and revealed a gun. Defendant then starting "spouting out" how Williams had wronged him and was to blame for all of defendant's troubles, and that he was going to kill Williams because Williams was "worthless, or treated him wrong," and everything was Williams's fault for defendant's situation.
Williams responded that he wasn't the cause of defendant's troubles, there was no reason to kill him, and it was only going to make matters worse. Defendant responded that he didn't care; he came there to kill Williams, and he was going to do it. Defendant's voice was escalating and emotional, and he started turning red. Williams could see that defendant had a clip in his right hand.
In this interchange, Williams described himself as talking fast and trying to convince defendant it wasn't the right thing to kill him. Defendant threatened to kill him at least 3 or 4 times. But after a few minutes of this back and forth, defendant said that today was Williams' "lucky day," and he wasn't going to kill him. Williams immediately turned around and walked back toward his car shaking to "get the hell out of there," even though he had left the back door of the business open.
As soon as Williams approached his car, defendant came "barreling out of his truck at full speed," screamed "fuck it, I am going to kill you," and ran about 15-20 yards over to where Williams was standing at the front of his car. They were face to face. Defendant was mad and screaming and held the gun in his right hand, waving it around. His face got red again, and he said he had been thinking about this for a long time, and should have done it long ago. Defendant said, "I'm going to put one in your shoulder and I'm going to put one in your knee, and I'm going to watch you suffer before I put one in your head." While defendant was saying this, he was "waving the gun around" so that the barrel of the gun sometimes pointed directly at Williams's face. The gun crossed Williams's face more than two, maybe three or four times. They were standing less than a foot apart, and the gun was six to eight inches from Williams' face. There was no point in time when defendant waved the gun below Williams's chest. Defendant threatened to kill Williams two or three times.
This period of gun waving lasted two and a half to three minutes. It appeared to Williams that defendant was holding the gun in a position that he could fire it. The barrel was in a position where Williams thought it could have been discharged and caused him harm at least three and perhaps four times, and Williams had no doubt that defendant was going to kill him.
Despite defendant's tirade, Williams kept talking to defendant ("running my mouth") and stated that he still had children to raise. It was not a conversation; there was "no interaction between" defendant's rant and what Williams was saying. Finally defendant stopped waving the gun, relaxed his shoulders and put the gun at his side. Williams hurried back in the store, locked the back door, and called 911.
Defendant also called 911, and said he felt like killing himself and was going to kill another person beforehand, but couldn't do either one. He repeatedly stated that he wanted to shoot the salesman of the fireplace store. The 911 call was in evidence.
Defendant's preliminary hearing transcript was admitted in evidence. In that testimony, defendant admitted arriving at the fireplace store thinking about killing himself and Williams, admitting telling Williams he was thinking of killing himself and Williams, denied threatening Williams or pointing a gun at him, and said he repeatedly told Williams he had no intention of killing him.
During the encounter by the car, Williams did not see defendant move the slide back to the gun. And Williams answered no to the question whether defendant ever "aim[ed] the gun like police officers kind of point."
Marin County Deputy Sheriff Lauren Patton, who responded to the scene, testified that defendant said, as he was being handcuffed, that he wanted to kill himself today, but wanted to kill someone else first. Another deputy recovered a small black semiautomatic pistol from the toolbox on the front seat of defendant's truck, removed the magazine and locked the slide back from the gun. There were rounds visible in the magazine, but no round in the chamber. The gun was operable.
Marin County Deputy Sheriff Justin Zebb later searched defendant's truck and found a box of 380 ammunition that contained 50 rounds in the toolbox to the right of the driver's seat; a 380 magazine with ammunition in it and a large kitchen knife (both next to the box of ammunition); and a 10-millimeter gun magazine in the driver's door pocket.
Defendant testified that he had thought about killing Williams for years. On the day in question he went to a hardware store and bought gloves and sulfuric acid. Then he went to MacDonald's in Mill Valley and published a lengthy Facebook post with his "final thoughts" and spelling out his grievances and threats against Williams and writing that "many times I have thought about showing him how serious I was and how damaging his refusal to work with me has been to me. . . . That man has no idea of how many times I have laid awake at night wishing him the gravest of harm." A half an hour later, he went to the parking lot of the fireplace store, knowing the store closing time was 4:00 p.m. and that Williams would be there.
When defendant was in the parking lot, he knew there was a magazine in his gun and assumed there were bullets in the magazine. He admitted that he brought ammunition to the scene, but claimed it was to damage the property in the store. He also thought about pouring the acid he purchased on the computers in the fireplace store.
Counsel and the court settled on jury instructions that would be binding on the court and guide its deliberation, all of which the court read into the record. The court heard closing argument and began deliberation, requesting to review the reporter's transcript of Williams' trial testimony. The court then returned verdicts of guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a), count 1), unlawful threats (§ 422, count 2), carrying a loaded firearm with intent to commit a felony (§ 25800, subd. (a), count 3), carrying a loaded firearm in public (§ 25850, subd. (a), count 4), and exhibiting a deadly weapon (§ 417, subd. (a), count 5, a misdemeanor). As to counts 1 and 2, the court found true the firearm use enhancements (§ 12022.5, subd. (a)). The court found defendant not guilty of assault with a firearm (§ 245, subd. (a)(2), count 6), and found the premeditation allegation to the attempted murder charge not true.
All further statutory references are to the Penal Code.
Defendant was sentenced to the upper term of nine years on count 1, and a consecutive four-year term for the firearm enhancement. The court imposed and stayed pursuant to section 654 three-year terms on each of counts 2 and 3. It did not impose jail time on count 4.
DISCUSSION
I.
We review a challenge to the sufficiency of the evidence in a criminal case by this familiar standard: we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Our Supreme Court elaborated on our role in People v. Kraft (2000) 23 Cal.4th 978: "The appellate court presumes in support of the judgment the existence of every fact the trier could reasonable deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] . . . ' "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. [Citation.]" ' " (Id. at pp. 1053-1054.)
As an appellate court we may not substitute our judgment for the judgment of the trial court as finder of fact. (See People v. Ceja (1993) 4 Cal.4th 1134, 1139.) Nor do we reweigh the evidence or reevaluate the credibility of witnesses. (People v. Alexander (2010) 49 Cal.4th 846, 917.) "Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment." (ASP Properties Group v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.)
" 'Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' (People v. Ervine (2009) 47 Cal.4th 745, 785.) 'The overt act element of attempt requires conduct that goes beyond "mere preparation" and "show[s] that [defendant] is putting his or her plan into action." [Citations.] [¶] . . . [T]he line between mere preparation and conduct satisfying the act element of attempt often is difficult to determine; the problem "is a question of degree and depends upon the facts and circumstances of a particular case." [Citation.] The act that goes "beyond mere preparation" need not constitute an element of the target crime [citation], and it " 'need not be the ultimate step toward the consummation of the design.' " [Citation.] Instead, " 'it is sufficient if [the conduct] is the first or some subsequent act directed towards that end after the preparations are made.' " [Citation.] In other words, . . . the act must represent " 'some appreciable fragment of the crime.' " [Citations.]' [Citation.]" (People v. Hajek (2014) 58 Cal.4th 1144, 1192, abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
But it is a longstanding principle that when the " 'design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.' " (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8.)
The mental state required to convict a defendant of attempted murder is intent to kill or express malice, which "may in many cases 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." (People v. Smith (2005) 37 Cal.4th 733, 741.)
The parties are in agreement that voluntary abandonment is not a defense to attempt once the defendant with the necessary intent commits an act directed toward committing the substantive offense, both citing People v. Dillon (1983) 34 Cal.3d 441, 454-455. As our Supreme Court explained, "the law of attempts would be largely without function if it could not be invoked until the trigger was pulled, the blow struck, or the money seized." (Id. at p. 455.) Once the attempt is underway, "a last-minute change of heart by the perpetrator should not be permitted to exonerate him." (Ibid.)
The appeal thus comes down to the narrow issue of the sufficiency of the evidence that defendant took a direct act with the specific intent to murder. We believe substantial evidence supports the trial court's verdict. Defendant had a lengthy and troubled history with Williams. On the day in question, armed with a weapon and substantial amounts of ammunition and sulfuric acid, he expressed an intent to kill Williams on a long Facebook post. Less than an hour later, he drove to the fireplace store and parked his truck on the side of the store, lying in waiting for Williams to come out of the store at the end of the business day as he knew he would. With his weapon in hand, defendant motioned Williams over to the truck and explicitly told Williams that he was going to kill him. A few minutes later, defendant came barreling out of his truck with the weapon loaded, again explicitly expressing his intent to kill Williams and even describing how he was going to do it and make Williams suffer, all the while waving the weapon, exposing the barrel of the gun to the plain view of William's face and repeating that he was going to kill him. This was substantial evidence to support the trial court's implied finding that defendant's acts had progressed beyond preparation, and that defendant had taken a direct movement toward commission of the offense. There was thus substantial evidence to support the conviction for attempted murder.
Our decision is supported by People v. Morales (1992) 5 Cal.App.4th 917, 926 (Morales), where a defendant was convicted of attempted murder without having actually fired a gun. There Morales told his wife that he was he was going to "get her boyfriend." Morales then went to his bedroom, loaded his gun, and as he left his house repeated that he was going to "get your fuckin' faggot boyfriend" (id. at p. 921), and then was coming back for her. As he said this, he pointed the gun at his wife. Morales then went to the boyfriend's house, and was later discovered there by police as he crouched by the side of the boyfriend's house behind a garbage pail three or four feet from the front steps from where the boyfriend was standing on the front porch. The Court of Appeal held there was sufficient evidence to support Morales's conviction for premeditated attempted murder of the boyfriend because defendant's conduct passed beyond mere preparation. Disagreeing with appellant's contention that there was no evidence that he had committed some " 'appreciable fragment' " of the crime, the Morales court stated "[o]ur Supreme Court has acknowledged that where the design of the accused is clearly shown, slight acts done in furtherance of the crime will constitute an attempt (People v. Miller[ (1935)] 2 Cal.2d [527,] 531); it is not necessary that the overt act be the last possible step prior to the commission of the crime. (People v. Dillon, supra, 34 Cal.3d at p. 453.)" (Morales at p. 926.) On the facts of Morales, the attempt was complete because defendant threatened to get the boyfriend twice, went home, loaded his weapon, drove to the victim's house, and hid in a position that would "give him a clear shot" at the victim if he left the house by the front door. (Id. at pp. 926-927.)
Defendant contends that in this case, his intent was equivocal, and he did not take a full clear step toward completing the crime, and that he abandoned the plan before he even took a step toward completing it. Defendant attempts to distinguish Morales, and relies instead on drawing an analogy to the facts in People v. Miller, supra, 2 Cal.2d 527 (Miller). We are not persuaded. In Miller, the defendant, "somewhat under the influence of liquor" threatened at the town post office in Booneville to kill one Jeans, described as a "negro," because he had been annoying his wife and the authorities wouldn't "take charge of the matter." Jeans was described as having had "some association with the defendant and other white people" in Booneville for a number of years, and was that day working at a hop ranch owned by the town constable. That afternoon, Miller went out to the ranch where Jeans and other people were in the field planting, carrying a rifle. The constable was about 250-300 yards from defendant, and Jeans was about 30 yards beyond the constable. Miller walked directly toward the constable, and after he had walked about 100 yards stopped and seemed to be loading his rifle. He never lifted the rifle to take aim. Jeans fled "at about right angles" to defendant's approach as soon as he saw defendant, although it wasn't clear precisely when he had made the move in relations to Miller's motion to load the weapon. Miller, however, simply "continued toward" the constable, who took the gun from defendant, who offered no resistance. In concluding that the evidence was insufficient to convict for attempted murder, the court reasoned that "no one could say with certainty whether the defendant had come into the field to carry out his threat to kill Jeans or merely to demand his arrest by the constable." (Id. at p. 529, 532.)
The court in Miller described these as the "salient facts stated without the color afforded by the epithets and language used by the defendant in making his threats." (Miller, supra, 2 Cal.2d at p. 529.) --------
The case before us is different. On the facts of Miller, the threat to kill the victim was not made to his face and was apparently motivated in part by the fact that the constable was not taking appropriate action. When Miller got to the field and the constable himself was there, an inference could be drawn that Miller didn't need to take self-help measures, however misguided, and it would be unwise to do so in any event in front of the constable. Here, however defendant made repeated threats to kill Williams in the harrowing minutes when he confronted him in the parking lot of the fireplace store and held the weapon inches away from his face. We find no error.
II.
After we filed an unpublished opinion affirming the judgment, defendant filed a petition for rehearing asking us to remand the matter to the trial court to determine whether to strike the firearm use enhancement it imposed under section 12022.5. Under newly enacted Senate Bill No. 620, effective January 1, 2018, trial courts have discretion whether to impose this sentencing enhancement or strike it or dismiss it. The new law amends sections 12022.5, subdivision (c) and 12022.53, subdivision (h) to state that "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
The Attorney General does not dispute that at the time defendant was sentenced, the sentencing enhancement was mandatory and the trial court had no authority to strike or dismiss it, and he expressly concedes in his response to the petition for rehearing that the amendment applies retroactively to defendant, whose judgment is not final. But the Attorney General contends that no purpose would be served in remanding the case because record suggests the trial court would not have exercised its discretion to lessen defendant's sentence and there is no reasonable probability the result would be any different. The Attorney General cites to the fact that when the trial court imposed the enhancement, it imposed the midterm of four years, rather than the lower term of three years (see § 12022.5 subd. (a)); he also contends that are no "compelling facts" that would warrant striking the enhancement.
We are not prepared to state on this record how the trial court is likely to exercise its discretion, and we will remand the case to the trial court to let it do so in the first instance. We express no opinion on the outcome of this consideration.
DISPOSITION
The matter is remanded to the trial court to consider whether it should in the interests of justice under section 1385 strike the firearms enhancement. In all other respects, the judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.