Opinion
E071889
03-18-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CHRISTOPHER MUSSELMAN, Defendant and Appellant.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Jason Tran and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV17001192) OPINION APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda, Judge. Affirmed. Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Jason Tran and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Anthony Christopher Musselman of first degree murder and possession of a firearm by a felon. (Pen. Code, §§ 187, subd. (a), 189, subd. (a), 29800, subd. (a)(1).) The jury also found firearm enhancements to be true. (§ 12022.53, subds. (b)-(d).) The trial court sentenced Musselman to an aggregate term of 53 years to life in prison.
Further undesignated statutory references are to the Penal Code.
Musselman was represented by privately retained counsel for trial. After the jury returned the verdict, he asked for appointed counsel so that he could move for a new trial on the basis of ineffective assistance of counsel. The court granted that request, relieved retained counsel, and appointed new counsel. On appeal, Musselman argues that his counsel was ineffective for three reasons: (1) Retained counsel failed to move for a judgment of acquittal; (2) retained counsel failed to object to certain rebuttal evidence; and (3) appointed counsel omitted both of the foregoing arguments from Musselman's new trial motion. We conclude that Musselman's ineffective assistance claims lack merit and affirm.
Musselman filed a petition for writ of habeas corpus raising the same ineffective assistance of counsel claims. (In re Musselman on Habeas Corpus (case No. E074299).) In a separate order, we deny that petition. --------
BACKGROUND
I. Prosecution's Case-in-Chief
The murder victim, Derek Foronda, had two children with Amanda Paverud. Musselman, Foronda, and Paverud knew each other from high school, and Musselman and Foronda were friends. Musselman drove a green Scion. Foronda occasionally borrowed the Scion.
Foronda borrowed Musselman's car one day in March 2017. He made plans with Paverud and drove the Scion to her house. Musselman was at a class and believed that Foronda was waiting for him in the parking lot.
Foronda and Paverud argued when he arrived at Paverud's house. Foronda had been drinking malt liquor he had found in Musselman's car. A neighbor contacted the police when he heard Foronda and Paverud arguing. After the police spoke to them and left, they were sitting in front of Paverud's house with their children, and Musselman called Paverud's cellular phone in an attempt to reach Foronda. Foronda and Musselman spoke for a minute or two. Musselman sounded upset. The two men also exchanged text messages from Paverud's phone. Foronda's text message said: "'I tried calling you. Some shit happened.'" Musselman replied: "'Better not have drank my shit either.'" And then: "'Don't act a fool when I get there.'" Musselman sent a third text message saying: "'I'm getting my car, and you're coming with me.'"
Paverud waited outside with Foronda for Musselman's arrival because she wanted to ensure that there were "no issues" between Foronda and Musselman. Foronda promised her that there would not be any kind of altercation. She waited for awhile but needed to take the children inside eventually. As she walked into the house, she saw a silver car approaching. Musselman was in the passenger seat.
Paverud was inside for a minute or two before she heard what sounded like a "really hard" knocking on the garage door. She heard the noise multiple times. Her roommate's daughter ran inside from the backyard and said someone was shooting. Paverud ran outside and saw Foronda lying on his back. Musselman was standing over him with a gun. Paverud started to run to Foronda, and Musselman ran to his Scion and drove away.
Paverud's roommate was in the backyard and heard four to five gunshots. The roommate ran inside and followed Paverud out to the street, where she pulled Paverud away from Foronda and comforted her.
Paverud's three neighbors, who lived across the street, also heard gunshots. The first neighbor heard three gunshots, a pause of a few seconds, and four more gunshots. He looked out the front door and saw Foronda on the ground. That neighbor was an army medic, so he retrieved his medical bag and ran to Foronda to render aid. Paverud was there, hysterical and crying out for help. The neighbor saw the Scion driving away but did not see who was driving the car.
The second neighbor heard approximately six gunshots—three gunshots, a pause of several seconds, and then three more gunshots. He looked out the front door and saw Foronda on the ground and another man hunched over Foronda. The second neighbor exited the front door, and the man hunched over Foronda bolted to the Scion and drove away.
The third neighbor heard seven or eight gunshots—one set of four or five followed by a second set. He looked out the window and saw a man run to the Scion and drive away.
Foronda had six sharp force injuries on his face, including some incised wounds. He also had abrasions on his face, two gunshot wounds on his lower back, two gunshot wounds on his left buttock, and two gunshot wounds on his right thigh. Gunpowder stippling around the lower back wounds indicated that the shots were fired from six to 30 inches away. The multiple gunshot wounds caused Foronda's death.
II. Defense Case
Musselman called a fourth neighbor to testify. That neighbor heard two gunshots close together and then two more that "sounded different." When the neighbor went outside, he heard screaming and crying and saw two women standing over a man on the ground. One woman was very upset, and the second one was trying to console her.
Musselman also called a man who was working at a nearby fast-food restaurant on the day of the shooting. The fast food employee recalled serving a man in a green Scion at the drive-through window. The Scion driver left the car in the parking lot overnight, and police recovered it the next day. An officer also interviewed the fast food employee the next day. The officer showed the employee a photographic lineup that included Musselman's photograph. The employee was unable to identify the Scion driver in the lineup, and he did not see the Scion driver in the courtroom when he testified.
III. Prosecution's Rebuttal Witness
In rebuttal, the prosecution called a fifth neighbor, Sandra McLaughlin. She heard two to four gunshots, a pause, and two more gunshots. McLaughlin moved toward her back door and heard someone say, "'Well, I bet you you're dead now, you son of a bitch.'" She looked outside and saw a man on the ground and another man bent over him holding a gun. The man with the gun got into the Scion and drove away.
DISCUSSION
Musselman argues that both retained counsel and appointed counsel rendered ineffective assistance. A defendant claiming ineffective assistance of counsel "must show that counsel's representation fell below an objective standard of reasonableness" and that counsel's deficient performance prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692.) Prejudice means "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) "[T]he decision not to make a meritless request is neither deficient performance nor prejudicial." (People v. Washington (2017) 15 Cal.App.5th 19, 26.)
I. Failure to Move for a Judgment of Acquittal
Musselman contends that retained counsel was ineffective because he failed to move for a judgment of acquittal at the close of the prosecution's case-in-chief. He asserts that there was insufficient evidence of premeditation and deliberation. Such a motion would have been meritless, so Musselman's ineffective assistance claim fails.
The trial court shall grant a motion for judgment of acquittal "if the evidence then before the court is insufficient to sustain a conviction . . . on appeal." (§ 1118.1.) The trial court applies the same standard as "an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.'" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.)
"[D]eliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time.'" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) The process can occur "in a brief interval." (People v. Memro (1995) 11 Cal.4th 786, 863.) "'"The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly."'" (People v. Koontz, supra, at p. 1080.) Three factors typically shed light on whether a killing is deliberate and premeditated—planning activity, motive, and the manner of killing. (People v. Pride (1992) 3 Cal.4th 195, 247.) But those factors need not "be present in some special combination," nor is that list of factors exhaustive. (Ibid.)
In this case, there was substantial evidence of premeditation and deliberation. Musselman was angry with Foronda for taking Musselman's car, providing evidence of motive. The manner of killing also evidenced reflection. Musselman fired several shots at Foronda, paused, and then fired several more shots. He shot Foronda at close range in the back. And in addition to shooting Foronda, he inflicted numerous sharp force injuries to Foronda's face that appear consistent with striking Foronda with the gun. A reasonable jury could conclude from all of this evidence that Musselman had enough time to reflect on his actions and made a calculated decision to kill Foronda. (People v. Francisco (1994) 22 Cal.App.4th 1180, 1192 [five or six shots from a distance of five feet gave rise to an inference of premeditation and deliberation]; People v. Lunafelix (1985) 168 Cal.App.3d 97, 102 [one or two shots, a pause, and then two more shots "indicated appellant's intent to make sure the victim died" and supported an inference of premeditation and deliberation].)
In short, Musselman's retained counsel did not render ineffective assistance by failing to bring a meritless motion for judgment of acquittal. There was substantial evidence of premeditation and deliberation supporting a conviction of first degree murder.
II. Failure to Object to McLaughlin's Rebuttal Testimony
Musselman argues that retained counsel was ineffective because he failed to object to McLaughlin's testimony as improper rebuttal evidence. Such an objection also would have been meritless.
"Rebuttal evidence is relevant and thus admissible if it 'tend[s] to disprove a fact of consequence on which the defendant has introduced evidence.'" (People v. Clark (2011) 52 Cal.4th 856, 936.) "The order of proof rests largely in the sound discretion of the trial court, and the fact that the evidence in question might have tended to support the prosecution's case-in-chief does not make it improper rebuttal." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 68.) Nevertheless, "it is improper for a prosecutor to withhold 'crucial evidence properly belonging in the case-in-chief'" (People v. Nunez and Satele (2013) 57 Cal.4th 1, 30) and "offer it after the defense rests its case," thereby "surpris[ing] the defense or unduly magnify[ing] the importance of the evidence." (People v. Coffman and Marlow, supra, at p. 68.)
Musselman concedes that McLaughlin's testimony was admissible to the extent that it rebutted the testimony of the defense witness who saw two women standing over Foronda—McLaughlin saw only a man standing over the victim. But Musselman argues that retained counsel should have objected to the overheard statement, "'Well, I bet you you're dead now, you son of a bitch.'" He asserts that the statement was central to proof of premeditation and deliberation, and the prosecution therefore should have presented the evidence in its case-in-chief.
The argument lacks merit. Musselman's evidence set up the defense that he was not the shooter. Defense counsel argued in closing that Paverud was lying; that she fought with Foronda on the day of the shooting, suggesting that she had a motive to shoot him; that someone other than Musselman drove his car to the fast-food restaurant just after the shooting; and that Musselman was not the shooter. McLaughlin's testimony about the overheard statement tended to establish not just that Musselman was present at the shooting, but that he was, in fact, the shooter. It disproved "'a fact of consequence on which the defendant ha[d] introduced evidence,'" so it was proper rebuttal evidence. (People v. Clark, supra, 52 Cal.4th at p. 936.) An objection to the challenged evidence on the ground that it was improper rebuttal would have been meritless.
Moreover, even if the court would have sustained that objection to the overheard statement, it is not reasonably probable that Musselman would have achieved a better result. Contrary to Musselman's assertion, the statement was not crucial to proof of premeditation and deliberation. The other evidence of premeditation and deliberation was strong. As we have discussed, Musselman had a motive for killing Foronda, and the manner of killing—numerous shots at close range, a pause in between rounds, and sharp force wounds to the face—demonstrated premeditation and deliberation.
For all of these reasons, retained counsel did not render ineffective assistance by failing to object to McLaughlin's rebuttal testimony.
III. Failure to Advance Arguments in the New Trial Motion
Appointed counsel filed a new trial motion arguing that the prosecutor committed misconduct by waiting for rebuttal to introduce McLaughlin's testimony about the overheard statement. The motion asserted that the overheard statement was the only evidence of malice aforethought, and the evidence therefore belonged in the prosecution's case-in-chief. The new trial motion also argued that retained counsel rendered ineffective assistance by failing to object to McLaughlin's testimony as improper rebuttal evidence, and without such testimony the prosecutor had no proof of malice aforethought.
Musselman contends that appointed counsel was ineffective because the new trial motion failed to make the same arguments that he advances on appeal. That is, the new trial motion did not assert that retained counsel was ineffective because he failed to move for a judgment of acquittal. And while the motion argued ineffective assistance because the overheard statement was crucial evidence of malice aforethought, the motion did not argue that the statement was crucial evidence of premeditation and deliberation.
The claim that appointed counsel rendered ineffective assistance fails. As we have discussed, retained counsel did not render ineffective assistance by failing to bring a meritless motion or failing to make a meritless evidentiary objection. It follows that appointed counsel did not render ineffective assistance by failing to make the same meritless arguments.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: SLOUGH
Acting P. J.
FIELDS
J.