Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FSB054827, W. Robert Fawke, Judge.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Emery Troy Moore, defendant and appellant (hereafter defendant), appeals from the judgment entered after a jury found him guilty as charged of two counts of attempted murder in violation of Penal Code sections 664/187, subdivision (a) (counts 1 and 3) and two counts of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2) (counts 2 and 4). In connection with the attempted murder counts, the jury returned true findings on allegations that in the commission of those crimes, defendant personally and intentionally discharged a firearm causing great bodily injury to Timothy Gasaway and Myrance Wilson, within the meaning of section 12022.53, subdivision (d). In connection with the assault with a firearm counts, the jury returned true findings on allegations that in the commission of those crimes defendant personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d). In addition, on count 4, the jury returned a true finding on the allegation that in the commission of that crime defendant personally inflicted great bodily injury on Wilson, within the meaning of section 12022.7, subdivision (b).
All further statutory references are to the Penal Code unless indicated otherwise.
After he waived his right to a jury, the trial court found true the special allegations that defendant served a prior term in prison within the meaning of section 667.5, subdivision (b), and that defendant previously had been convicted of a serious and violent felony within the meaning of the three strikes law, section 1170.12, subdivision (a), and section 667, subdivisions (a) through (i). After expressing a doubt about defendant’s mental competence to be sentenced and suspending the proceedings in order to address that issue, the trial court ultimately reinstated criminal proceedings and sentenced defendant to serve a total determinate term of 23 years eight months in prison to be followed by two indeterminate terms of 25 years to life, to be served consecutively.
Defendant claims in this appeal that the trial court (1) had a sua sponte duty to instruct the jury according to Judicial Council of California Criminal Jury Instruction, CALCRIM No. 252 on the union between act and intent required to commit each of the charged crimes and failure to do so constitutes reversible error; (2) erred when it overruled defendant’s objection that a witness’s prior inconsistent statement was not based on personal knowledge; (3) failed to award presentence custody credit to defendant; and (4) prejudicially erred in finding defendant competent to be sentenced based on only one of the two expert reports the trial court had requested.
The Attorney General concedes the custody credit issue and we conclude that concession is appropriate. Therefore, we will remand the matter to the trial court for the limited purpose of calculating and awarding defendant’s presentence custody credits. Otherwise, defendant’s claims are meritless and we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of May 10, 2003, Timothy Gasaway was sitting in the passenger seat of his car listening to music. The car was parked in an alley adjacent to the apartment building where Gasaway lived. A green or dark color four-door Saturn pulled up on the passenger side of Gasaway’s car. Defendant was the car’s driver. Myrance Wilson was in the front passenger seat, and Otto Keel was in the back seat. Wilson got out of defendant’s car, walked over to Gasaway’s car, and kneeled down to talk with Gasaway through the open car window. While the two were talking, Gasaway heard four gun shots after which Wilson slumped onto the door of Gasaway’s car. Gasaway used his feet to push Wilson away from the car. Gasaway got out of the car and was walking toward the stairs when he heard three more gun shots and was hit by bullets in his stomach, or side, his left thigh and the heel of his left foot. Someone told Gasaway’s brother, Curtis, that Gasaway had been shot and Curtis went to where Gasaway was lying on the ground. Gasaway told Curtis that defendant had shot him, although Gasaway identified defendant as Quay-Quay’s baby daddy. Gasaway identified defendant, both at trial and in a pretrial photo lineup, as the driver of the car and the person who fired the gun from the driver’s window.
Quay-Quay is the nickname of Shawniquia Bilbrew. Defendant and Ms. Bilbrew have children together. Gasaway and Ms. Bilbrew were friends in elementary school, but lost touch with each other after the sixth grade. Gasaway did not see Ms. Bilbrew again until about two weeks before the shooting. Gasaway was 21 years old at the time he was shot.
Wilson testified that he was leaning on Tim Gasaway’s car talking with Gasaway when he heard the first shot. The bullet hit him in the spine. A second bullet hit Wilson in the right arm. Both in a pretrial photo lineup and at trial Wilson identified defendant as the person who shot him. Wilson is paralyzed from the waist down as a result of the bullet that hit him in the spine.
Defendant testified at trial and effectively confirmed the sequence of events that occurred the evening in question. However, defendant denied having a gun. He testified that Wilson was the one carrying a gun that night. According to defendant, Wilson used the gun in an attempt to rob the person sitting in the car parked in the alley. While Wilson was leaning on the car, another man walked up and shot Wilson in the back. Defendant sped away from the scene because Keel was yelling at him from the back seat to go. Defendant did not go to the police after the shooting because he feared his parole would be violated. Defendant would not give a description of the shooter because he feared retaliation.
Additional facts will be discussed below as pertinent to the issues defendant raises on appeal.
DISCUSSION
Defendant first contends that the trial court erred by failing to instruct the jury sua sponte according to CALCRIM No. 252 on the joint operation, or union, of criminal act and intent.
1. DUTY TO INSTRUCT ON THE JOINT OPERATION OF ACT AND INTENT OR MENTAL STATE
The trial court instructed the jury in this case with modified versions of CALCRIM No. 250 and CALCRIM No. 251, which respectively address the union of criminal act and general intent, and the union of criminal act and specific intent. As given by the trial court CALCRIM No. 250 told the jury, “Every crime or other allegation charged in this case requires proof of the union, or joint operation, of act and wrongful intent except for the crimes charged in Counts 1 and 3, Attempted Murder. [¶] In order to be guilty of the crime of PC 245(A)(2), Assault with a firearm, as charged in Counts 2 and 4, or the allegations of PC 12022.5(A) and PC 12022.53(D), a person must not only commit the prohibited act, but must do so intentionally or on purpose. The act required is explained in the instructions for each crime or allegation. However, it is not required that he or she intend to break the law. [Emphasis added.]” CALCRIM No. 251, as given by the trial court in this case, said, “Every crime in this case requires proof of the union, or joint operation, of act and wrongful intent except for the crimes charged in Counts 2 and 4, Assault with a Firearm. [¶] In order to be guilty of the crimes of PC 664/187(a), Attempted Murder, a person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the intent or mental state required are explained in the instruction for every crime. [Emphasis added.]”
According to the Bench Notes to both instructions, “If the case involves both offenses requiring a specific intent or mental state and offenses that do not, the court may give CALCRIM No. 252, Union of Act and Intent: General and Specific Intent Together, in place of this instruction.” (Bench Notes to CALCRIM Nos. 250 & 251 (2006-2007) pp. 65, 68.) Although initially requested, the parties withdrew CALCRIM No. 252 “by stipulation.” Because the discussion regarding jury instructions was not reported, we do not know why the parties stipulated to withdraw the instruction.
Defendant contends that the emphasized language in the trial court’s instructions had the effect of telling the jury that the crimes charged in this case do not require the joint union of act and criminal intent. Although the trial court used the emphasized language in a manner other than that anticipated by the drafters of the CALCRIM instructions (see fn. 4), we do not share defendant’s view regarding the effect, as we now explain.
The Bench Notes to the 2006-2007 version of CALCRIM No. 250 state that the exception in the first sentence applies when the defendant is also charged with a criminal negligence or strict liability offense, in which case, the court should “insert the name of the offense where indicated in the first sentence.” (See Bench Notes to CALCRIM No. 250 (2006-2007) pp. 65-66.) The Bench Notes to the same version of CALCRIM No. 251 do not include any direction regarding the exception in the first sentence and instead state, “This instruction does not apply to criminal negligence or strict liability.” (See Bench Notes to CALCRIM No. 251 (2006-2007) p. 69.) Although not given in this case, the 2006-2007 version of CALCRIM No. 252 also includes the exception in the first sentence and the Bench Notes to that instruction state, “If the defendant is also charged with a criminal negligence or strict-liability offense, insert the name of the offense where indicated in the first sentence.” (Bench Notes to CALCRIM No. 252 (2006-2007) p. 72.) The criminal negligence and strict liability exception is not included in the current versions of either CALCRIM No. 250 or No. 251. (See CALCRIM Nos. 250 & 251 (2007-2008).) Nor is it included in the Fall 2007 versions of CALCRIM Nos. 250 and 251 published by Thomson/West, which defendant cites in his brief, although the Bench Notes to CALCRIM Nos. 250 and 252 refer to the exception and include the above quoted language directing the court to insert the name of the strict liability or criminal negligence crimes in the first sentence of the respective instructions. (See Bench Notes to CALCRIM Nos. 250 & 252 (Fall 2007) pp. 52, 56.)
We begin with the well-settled principle that jury instructions must be viewed as a whole and not in isolation in order to determine whether there is a reasonable likelihood the jury understood the instructions in a manner that violated defendant’s rights. (See People v. Davison (1995) 32 Cal.App.4th 206, 212, citing People v. Warren (1988) 45 Cal.3d 471, 487 and People v. McPeters (1992) 2 Cal.4th 1148, 1191.) Despite the first sentence, the trial court’s versions of CALCRIM No. 250 and No. 251 correctly informed the jury that each crime charged required an act and a specified intent or mental state. (See § 20 [“In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence”].)
The trial court also correctly instructed the jury on the elements of each crime. With respect to the attempted murder charges alleged in counts 1 and 3, the trial court instructed, in pertinent part, that in order to find defendant guilty of that crime the evidence had to show that defendant “took at least one direct but ineffective step toward killing another person,” and that “defendant intended to kill that person.” With respect to the assault with a firearm charges alleged in counts 2 and 4, the trial court instructed the jury in pertinent part that the evidence must show “defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person” and that “defendant did that act willfully.”
The noted instructions make clear to the jury that the crimes charged require both a criminal act and an intent or mental state. At worst, the trial court’s versions of CALCRIM Nos. 250 and 251 were confusing and perhaps even contradictory. However, the specific instructions on the elements of the crime correctly articulated the legal requirement of a joint operation of act and mental state or intent. Moreover, the prosecutor correctly discussed the pertinent principles in closing argument. With respect to assault with a firearm, the prosecutor told the jury that it “is what we call a general intent crime. That means, I just have to intend to do an act; okay? There’s no specific intent required. . . . [¶] Attempted murder, on the other hand, is what we call a specific intent crime. What I mean by that is, by specific intent you have to have the specific intent to kill somebody.” The prosecutor added, “That’s why you have two different instructions regarding crimes. [¶] Now, this one says: ‘Each crime or other allegation charged in this case requires proof of the union or joint operation.’ Basically, what that means is: 245(A)(2), assault with a firearm and both gun allegations, require a general intent, just action; okay? Just want to get that clear. [¶] The next one is 251. It explains specific intent. And that one says: ‘Every crime charged requires proof of the union, or joint operation, of act and wrongful intent’ except for the allegation in the assault charges in Count 2 and 4, assault with a firearm.’ Then it gives for the attempted murder, ‘that you must act with specific intent.’ So that’s the difference.”
Although the prosecutor included the exception in his discussion of CALCRIM No. 251, he nevertheless made clear that the charged crimes each required an act and specified intent: general intent to commit the act is required in order to find defendant guilty of assault with a firearm as charged in counts 2 and 4, and specific intent to kill is required in order to find defendant guilty of attempted murder as alleged in counts 1 and 3.
Viewed as a whole, and in light of the entire charge to the jury, we conclude that the jurors could not have construed the challenged jury instructions in the manner defendant urges. (People v. Davison, supra, 32 Cal.App.4th at p. 212.) Stated differently, if the trial court’s instructions were incorrect, the error was harmless beyond a reasonable doubt because the jury could not have construed the trial court’s versions of CALCRIM Nos. 250 and 251 to mean that the crimes charged in this case did not require the joint operation of criminal act and mental state or intent. (Chapman v. California (1967) 386 U.S. 18, 24.)
2. ADMISSIBILITY OF PRIOR INCONSISTENT STATEMENT
Defendant contends that the trial court erred when it overruled his objection that a purported prior inconsistent statement made by Otto Keel, the passenger in the back seat of defendant’s car, was inadmissible because Keel lacked personal knowledge about the subject matter of that statement. We disagree for reasons we now explain.
The pertinent facts are that the prosecutor asked Keel if he recalled telling a police detective “about something that was going on between Quay-Quay, Y.D. [Gasaway], and Toy [defendant.]” Keel said, “No.” The prosecutor then asked, “Did you tell Detective Flesher or any other detective in the interview that you knew that -- and your words are: ‘I know they had been arguing[.]’” Defendant then objected, “Lack of foundation. Personal knowledge.” The trial court responded, “I’m assuming it’s his prior statement,” and when the prosecutor confirmed the accuracy of the trial court’s assumption, defendant asked to be heard. That exchange occurred off the record. When proceedings resumed in open court, the prosecutor asked Keel to read a portion of the transcript of his tape-recorded police interview, and then asked, “Do you recall making that statement?” Keel answered, “Yeah. I said that he didn’t shoot anybody. He didn’t shoot nobody.” The prosecutor said, “And the question that I had you read says, from the detective: ‘What did [defendant] shoot him for?’ And you responded, ‘I didn’t even know he shot him,’ you paused and said, ‘I know they had been arguing or something about my niece Quay-Quay.’ Okay. Is that an accurate statement?” Keel said, “Not really. I mean I don’t remember that. I don’t know -- I was high at that time. I don’t remember, but I may have said it, but I never knew them to argue or nothing.” The prosecutor asked, “Well, did you have personal knowledge of them arguing?” Keel said, “No.” In response to additional questions, Keel denied that he had ever seen defendant argue with Quay-Quay about Gasaway and said that he could not remember making the statement to the detective, and that he also did not remember “them ever having no kind of beefs or arguing or nothing over no Quay-Quay.”
A trial court has discretion to admit or exclude relevant evidence and, on appeal, we review that exercise of discretion for abuse. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) We will not disturb the trial court’s ruling “except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (Id. at pp. 9-10.)
We do not share defendant’s view that the trial court abused its discretion in overruling his objection to the admissibility of Keel’s prior statement to the police. That statement was admissible to impeach Keel’s trial testimony. Whether Keel had personal knowledge of the subject matter of his prior statement was a matter for the jury to decide in determining what if any weight to give to that evidence. (See People v. Dennis (1998) 17 Cal.4th 468, 526 [if a witness has the ability to perceive and recollect, whether the witness “‘in fact perceived and does recollect is left to the trier of fact’”].)
We will not address the issue further however because even if we were to agree with defendant, the purported error would only require reversal of the judgment if it resulted in a miscarriage of justice. (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.) In this context, a miscarriage of justice occurs when this court is able to say, absent the erroneously admitted evidence, that it is reasonably probable the jury would have reached a result more favorable to defendant. (Evid. Code, § 353; People v. Watson (1956) 46 Cal.2d 818, 836.)
Keel’s testimony, as defendant points out, established a purported motive for defendant to shoot Gasaway. Although defendant is of the view that without a motive the prosecution’s case “did not make any sense” because defendant had no reason to shoot Gasaway or Wilson, in fact the prosecutor barely mentioned the issue of motive in his closing argument. Defendant recounts in full in his opening brief the pertinent part of the prosecutor’s closing argument, which consists of six lines in the reporter’s transcript in which the prosecutor stated: “And [Keel] also said that he knew that [defendant] was having problems, or [defendant] was having problems with his girlfriend regarding Gasaway. He admitted that. That’s the information that gives you motive. There’s motive. It gives you insight that nobody is really telling us. They’re kind of hiding something, because they’re protecting him. So, that’s why that’s important.”
Defendant’s contrary claim notwithstanding, it is not reasonably probable the jury would have reached a result more favorable to him if the jury had not heard Keel’s prior statement to the police regarding defendant’s motive for shooting Gasaway. If the motive evidence had been excluded the jury would still have heard the testimony of Gasaway and Wilson, both of whom identified defendant first from a photo lineup and again in court as the person who shot them. The jury also would have heard the testimony of Curtis Gasaway that immediately after his brother was shot, he identified defendant as the shooter. Although the jury asked during deliberations to listen to the tape of Keel’s police interview, the evidence of a motive for the shooting was a minor aspect of that interview and thus of the tape. The jury had more significant reasons for listening to Keel’s taped interview, chief among them being that Keel was the only person other than the shooter and the victims who was present when the shootings occurred. Keel could confirm or refute the various versions of what happened the night of the shooting. For these reasons we must conclude that if the trial court erred in admitting Keel’s prior statement to the police, that error was harmless in this case.
3. PRESENTENCE CUSTODY CREDIT AWARD
The trial court failed to award presentence custody credit to defendant, an oversight the Attorney General concedes. Consequently we must remand the matter to the trial court so the trial court can calculate and award presentence custody credit to defendant.
4. COMPETENCY DETERMINATION
Before sentencing, defendant retained counsel who filed a motion under section 1368 questioning defendant’s competence to stand trial and to be sentenced, and requesting that the trial court suspend proceedings in order to determine defendant’s mental competence. Following a hearing, the trial court declared a doubt about defendant’s competence, suspended proceedings, and ordered that two experts be appointed to evaluate defendant.
At the competency hearing, both sides stipulated to submit the issue based on only one report in which the expert (Dr. Courtney) expressed the opinion that defendant was mentally competent. Based on that report, the trial court also found defendant competent. Defendant filed a motion to continue his sentencing hearing and to set aside that competency finding because it was based on only one evaluation, rather than the two the trial court had ordered. Defendant also filed a motion for new trial and a so-called Romero motion to strike his prior serious felony conviction.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
At the combined hearing on those motions, defense counsel did not argue the motion to set aside the sentencing competency determination, and the trial court did not rule on that motion. Instead, the trial court proceeded to sentencing after denying defendant’s Romero motion and his motion for new trial based on defendant’s assertion that he had not been competent at the time of trial. Defendant contends in this appeal that the competency finding did not comport with the trial court’s original order appointing two experts to evaluate defendant and therefore we must reverse that finding.
Defendant did not get a ruling in the trial court on his motion to set aside the competency finding. Consequently, he has waived the issue for review on appeal. “‘[W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling . . . the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, he may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place.’ [Citations.]” (People v. Obie (1974) 41 Cal.App.3d 744, 750, quoting Witkin, Cal. Evidence (2d ed. 1966) § 1302, p. 1205, disapproved on other grounds by People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4; see also People v. Heldenburg (1990) 219 Cal.App.3d 468, 474, in which this court applied the quoted rule to a prosecutorial misconduct claim after trial court agreed but failed to admonish jury.)
But even if preserved for review on appeal, defendant’s claim is meritless because section 1369, subdivision (a) only requires the trial court to appoint one expert to evaluate defendant’s competence, unless defendant is not seeking a finding of mental incompetence. The trial court complied with the statutory procedure. Failure to require the second expert evaluation, even though ordered by the trial court, was harmless under any articulation of the prejudice standard.
Section 1369 states in pertinent part: “A trial court or jury of the question of mental competence shall proceed in the following order: [¶] (a) The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate to examine the defendant. In any case where the defendant or the defendant’s counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof.”
Because we conclude the trial court either did not commit any errors or the error, if committed, was harmless, we will not address defendant’s claim that the cumulative effect of the error requires reversal.
DISPOSITION
The judgment is affirmed, and the matter remanded to the trial court for the limited purpose of calculating and awarding presentence custody credit to defendant.
We concur: Hollenhorst, Acting P.J., Richli, J.