Opinion
C079036
05-30-2018
THE PEOPLE, Plaintiff and Respondent, v. PAVEL POSTELNYAK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F03434)
A jury found defendant Pavel Postelnyak guilty of first degree murder with a firearm for shooting and killing his coworker. He was sentenced to serve 50 years to life in state prison.
Defendant contends on appeal that his trial counsel was constitutionally ineffective because (1) counsel failed to object to alleged character evidence that he had a temper and became more aggressive shortly before the killing, and (2) counsel prematurely withdrew a request to instruct the jury on motive. He also contends insufficient evidence supports his murder conviction.
We conclude defendant's trial counsel was not ineffective as he had strategic reasons for not objecting to the temper evidence and for withdrawing a request to instruct the jury on motive. Even assuming counsel's representation fell below a reasonable standard, we conclude there is no prejudice. We also conclude sufficient evidence supports defendant's murder conviction. We therefore affirm the judgment.
FACTS AND PROCEEDINGS
A December 2014 first amended information charged defendant with murdering his coworker, the victim, and alleged he had intentionally and personally discharged a firearm causing his death. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) Defendant pleaded not guilty to the charge and denied the allegation. The evidence at trial showed the following:
Undesignated statutory references are to the Penal Code.
In May 2014, Parker Bell was acting director of Democracy Resources Northwest, a political consulting firm that qualified statewide ballot measures for the ballot. The company employed circulators to gather signatures for the ballot measures they handled. It had a temporary office in a strip mall at the corner of Auburn Boulevard and Garfield Avenue in Sacramento.
Jan Carrigg, Aaron Eddington, and Sidney Douglas worked for Bell as office assistants. Defendant and the victim were employed as circulators, or signature collectors. Although defendant and the victim had each worked for the company for a few months, Bell testified they had never interacted with each other during their employment.
Jan Carrigg's nickname was "Jay."
Sidney Douglas was nicknamed "Slim."
Defendant was scheduled to work on May 18, 2014. The victim was not. The victim, however, came into the office that morning to pick up his last check.
Bell arrived at the office on May 18 around 10:00 a.m. As circulators arrived at the office, he assigned them areas to collect signatures. He spoke with the victim at the front desk that morning. The victim was in a good mood. Because his final check was not ready Bell told the victim to come back in a few hours.
While Bell spoke with the victim, he saw defendant in the office. Bell asked defendant if he was going to work, and defendant responded that he was not sure. Defendant seemed quiet, and was staring at the walls. Bell thought defendant's behavior was a little unusual. Bell described defendant as being cocky at times, and said he sometimes did not like to wait to be heard. Bell had seen defendant angry in the past, but explained it was not unusual for circulators to sometimes get angry when collecting signatures.
After standing there for a few minutes, defendant walked outside. He turned left towards the side parking lot where employees parked.
The victim left the office about 10 minutes after defendant. Like defendant, he turned left toward the side parking lot. As he was leaving, the victim passed Carrigg who was coming in the office. Four seconds later, Bell heard five gunshots. They sounded like they came from the parking lot right by the edge of the building.
Carrigg and Douglas ran outside, and Bell looked out and saw the victim on the ground. Bell then got the employees back inside the office for safety reasons. About 15 to 30 seconds later, Douglas, Carrigg, and Eddington went outside to help the victim. Bell did not think there was enough time to wait for an ambulance, so he told them to put the victim in the company Suburban and take him to the hospital. They put the victim in the car and drove off.
Douglas testified that he arrived at the office at 10:35 a.m. He saw the victim and Bell conversing at the front counter. Defendant came into the office around 11:00 a.m. and sat in a chair in the lobby area. Douglas asked him whether he was working that day, and defendant responded that he was not sure. Douglas turned back around and continued working on his computer. When he turned around again, he did not see defendant anywhere in the office. Because he needed to know if defendant was working, Douglas quickly jumped up and ran outside to look for defendant. Douglas turned left into the side parking lot.
Douglas spotted defendant standing by his car, a white Dodge Neon that was a "little beat up." The victim's Jeep was also parked in the same parking lot, about four or five spaces away. Douglas asked defendant if he was working or not, and defendant said he did not think so. Douglas then ran back into the building. Douglas did not see anyone else in the parking lot at that time.
When Douglas returned to the building, he saw the victim inside. A few minutes later, the victim left. Douglas saw the victim pass Carrigg, who was coming in the entrance, and turn left toward his car in the side parking lot. Immediately after the victim left, Douglas heard two pops and then a few seconds later he heard three more pops that he recognized as gunfire. The shots came from outside and were close by.
Carrigg ran outside, and Douglas got up to close and lock the front door. About 15 to 20 seconds later, Carrigg returned and Douglas opened the door. Douglas looked to the right and saw defendant's white car abruptly exiting from the other side of the building onto Auburn Boulevard driving toward Garfield Avenue. According to Douglas, defendant's car was "not exiting a parking lot like a normal car would[;]" the tires made "a quick chirp, like the wheels on the pa[v]ement . . . when you burn rubber just a little bit." Douglas testified that from the side parking lot, a car could drive around the back of the building and then back up to the other side to the front.
Douglas turned to his left and saw the victim lying on the ground. He went to him, and the victim told Douglas, "I don't know why that crazy white boy shot me. I don't know him." The record shows defendant is White. The victim also said, "Don't let me die here, Slim. Don't let me die here." Douglas, Carrigg, Eddington, and another employee, Angela Andrews, loaded the victim into the company Suburban and Carrigg and Douglas drove him to the hospital.
Carrigg testified that he arrived at work at 11:10 a.m. in the company Suburban. He parked behind the back corner of the building. As Carrigg walked toward the front of the building, he saw defendant standing by his car in the parking lot. Defendant's car was parked toward the back of the side lot. Carrigg asked defendant if he was ready to "hit it," and defendant responded that a family issue had come up and he was not sure he was going to work that day. Carrigg saw some people in the front parking lot, but defendant was the only person in the side lot.
When Carrigg entered the office, he passed the victim and the two exchanged pleasantries. Ten to 20 seconds later, Carrigg heard four or five gunshots come from outside nearby. He went outside and saw the victim on the ground. A few seconds later, Carrigg saw defendant's white Neon reverse out of its parking spot and proceed behind the building towards the opposite side exit. Carrigg eventually got the company Suburban, loaded the victim into the car, and drove him to the hospital. He heard the victim say, "I don't know why that crazy white boy shot me. I don't even know him."
When Carrigg first heard the gunshots, he assumed they had come from the creek because sometimes there were homeless people down there. When he went outside, however, there were no homeless people present; the only thing he saw moving was defendant's car.
Andrews testified that she arrived at the office about 11:10 a.m., and parked in the side lot near the front of the building. As she walked to the office, she saw Carrigg and a "white guy" talking in the side parking lot. She did not see anyone else in the parking lot other than Carrigg and the man. She ran into the victim as he was coming out of the building. He apologized and headed toward the side parking lot. A few seconds later, Andrews heard gunshots from the side of the building. She ran outside to the edge of the building and saw the victim on the ground a few feet from where her car was parked. The victim said, "the white guy" shot him, and he asked, "Why did he shoot me?"
Andrews went back inside to call for help and then returned to the victim. The victim said he did not want to die. She helped load the victim into the Suburban, and heard him telling Douglas not to let him die there.
A bullet damaged the window of a pizza shop across the street from the office, and authorities recovered a spent bullet on the ground by the window. Surveillance video from the pizza shop showed the front of the Democracy Resources office at the time of the shooting. Video from a red-light camera showed the intersection of Auburn Boulevard and Garfield Avenue.
At trial, Bell and Douglas identified defendant's car in the videos. In the pizza shop video, Andrews identified her car parking and indicated the people in the video in the parking lot were about where she saw Carrigg talking to the "white guy."
Sergeant Stanley Swisher of the Sacramento County Sheriff's Department testified that the pizza shop surveillance video showed a white Neon pulling into the side parking lot at 11:01 a.m. The 911 call came in at 11:14 a.m. The red-light video, which was not time stamped, showed a white Dodge Neon that looked like defendant's travel from eastbound Auburn Boulevard to the turn lane and around the corner onto northbound Garfield Avenue. Five to six minutes later, the video showed a patrol vehicle responding to the scene. Officers arrived at 11:19 a.m. During rebuttal, Sergeant Swisher testified that he reviewed the pizza shop video from its beginning at 9:28 a.m. real time and no white four-door vehicle pulled into the parking lot until the white Dodge Neon pulled in at 11:01 a.m. real time.
According to Sergeant Swisher, the time indicated on the video was 32 minutes faster than real time.
Defendant's roommate, Christie Taylor, testified they became roommates in December 2013 through a Craigslist advertisement. Due to conflicting schedules, she only saw him about twice a week, and they often went days without seeing one another. Defendant told her he had a gun, but she never saw it. She said his demeanor changed a few months before the shooting; he became less patient, had a slight temper, and became more aggressive towards people at their apartment complex.
After interviewing several Democracy Resources employees, officers obtained a search warrant for defendant's apartment. Taylor, but not defendant, was home when Sergeant Swisher executed the warrant. Sergeant Swisher did not find any firearms or ammunition during the apartment search.
Defendant was arrested on May 21, 2014, after Taylor called police when he returned to their apartment three days after the shooting. Authorities detained defendant as he walked through the apartment complex. Defendant was carrying a plastic grocery bag containing two boxes of ammunition. One of the boxes was missing five rounds of ammunition. No usable fingerprints were found on the ammunition boxes. A cell phone with the battery separated from the phone was found in defendant's car.
Forensic pathologist Dr. Joseph Pestaner opined the victim died from multiple gunshot wounds. There were four gunshot wounds, and he recovered three bullets from the victim's body.
Criminalist Cara Stoner, an expert in forensic firearms and ballistics examination, compared the three bullets taken from the victim's body and the one found at the scene and determined they were all .44-caliber hollow point bullets manufactured by CCI Speer. In her opinion, all the bullets were fired from a Charter Arm .44 special caliber firearm. That firearm takes five rounds; when fired, the casings remain inside the gun cylinders. She also testified two of the bullets recovered from the victim's body were fired from the same firearm and the one recovered at the crime scene was likely fired from the same firearm. The third bullet recovered from the body could have been fired from the same gun, but she could not make any further determination because the bullet was damaged.
Stoner compared the two boxes of ammunition defendant was carrying when arrested to the fired bullets. One box was .44 special caliber CCI Speer ammunition that held 50 bullets but had only 45 bullets in it. Five bullets were missing. Stoner opined that all the design features of the bullets in this box were the same as two of the fired bullets. The design features still intact from the other two bullets that had been recovered were also consistent with the design features of the bullets in this box. The second box contained .44 magnum caliber CCI Speer Blazer ammunition, and was not missing any bullets. The bullets in that box were not the same type of bullets as the fired bullets.
The parties stipulated that when hospital staff asked the victim who shot him, he responded, "I don't know."
Defendant testified on his own behalf. According to him, he went to Democracy Resources on May 18 to visit a former girlfriend. She was not there, so he left in his car, a Dodge Neon. He denied shooting anyone, denied having a gun, and denied hearing any gunshots.
On cross-examination, defendant claimed he arrived at the office between 10:30 a.m. and 10:40 a.m., and left five minutes later. He testified he was not sure the car on the pizza shop video seen entering the side parking lot at 11:01 a.m. was his car. He claimed he parked in the back of the building and not the side parking lot to avoid tree pollen.
Defendant did not recall Carrigg coming out to the parking lot and talking to him, although he conceded he might have seen Carrigg that day. He said he did not remember telling Carrigg he was not going to work that day due to family issues. He did not remember talking to Douglas in the side parking lot next to his car. He did not recall being scheduled to work that day.
Defendant claimed he drove down alleyways until he came to Garfield Avenue when he left the office. He denied traveling on Auburn Boulevard. He did not recall telling a detective on May 21, 2014, that he drove behind the building and went out onto Auburn Boulevard. He stated the car on the red-light video looked like his, but he was not sure if it was his car.
After leaving the office, defendant did not return to his apartment but instead drove straight to Redding. He claimed he visited a woman named Tasha. Defendant, however, could not remember Tasha's last name, address, or phone number. He denied taking the battery out of his phone so his whereabouts could not be traced. He claimed the battery often fell out easily. Defendant returned to Sacramento on May 20, and visited two friends. He did not know their last names or their addresses.
Defendant said he purchased the two boxes of ammunition the second week of May 2014 with his friend Jason. The ammunition was for his friend's gun that he sometimes borrowed to shoot at a shooting range.
Prior to closing arguments, counsel met with the court to discuss proposed jury instructions. The court initially indicated it intended to give CALCRIM No. 370, the pattern jury instruction on motive. The prosecutor, however, requested that the court not give the instruction given its pretrial ruling denying her motion in limine to admit evidence of two prior bad acts under Evidence Code section 1101, subdivision (b), to show motive.
The prosecutor had sought to introduce evidence defendant had been charged with battery after he hid outside a store, chased a man he did not know, and shoved him from behind because the man allegedly looked at him wrong and said something to him, and he had been charged with battery again after he slapped a stranger in the face who he claimed was "talking shit" about him while he was gathering signatures on a community college campus. Defendant had argued the prior acts constituted improper character or propensity evidence and were not evidence of motive. While the court found the motive issue a "close question," the court had tentatively ruled the evidence inadmissible, cautioning the parties it could change its decision depending on how the trial progressed or if the jury would be misled if it did not hear the evidence.
During trial, the prosecutor again sought permission to introduce the community college incident to counter what she believed was an improper impression defendant had no problems at work. She argued Douglas had fired defendant after the assault at the community college, and then Bell had rehired him a few weeks later because of his high productivity numbers. Defense counsel continued to assert the evidence was impermissible character evidence, and the court found the door had not been sufficiently opened to admit the evidence. --------
After the prosecutor asked the court not to instruct the jury on motive, defense counsel requested that CALCRIM No. 370 be given. The prosecutor then asked the court to reconsider its prior in limine ruling and requested to reopen the evidence to introduce the store incident. Given the prosecutor's request, defense counsel withdrew his request for the motive instruction. The prosecutor then withdrew her request to reopen the evidence to present the store incident as evidence of motive under Evidence Code section 1101, subdivision (b). The jury was not instructed on motive.
The jury found defendant guilty of first degree murder and found the personal discharge of a firearm allegation true. The trial court sentenced defendant to serve a total prison term of 50 years to life: 25 years to life for the murder charge, plus a consecutive 25 years to life on the firearm use allegation. Defendant timely appealed.
DISCUSSION
I
Ineffective Assistance of Counsel
Defendant contends his attorney was constitutionally ineffective in two respects: (1) by failing to object to his roommate's testimony that he had a slight temper and became more aggressive in the weeks leading up to the killing that he contends was inadmissible character evidence, and (2) by withdrawing a request that the court instruct the jury on motive. Defense counsel was not ineffective. Even assuming counsel's representation fell below a reasonable standard, there is no prejudice.
To establish ineffective assistance of counsel, defendant must show, by a preponderance of the evidence, his or her counsel's representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) In determining whether counsel's performance was deficient, we exercise deferential scrutiny and "assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act." (Ledesma, at p. 216.) "Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
We presume counsel's conduct fell within the "wide range of reasonable professional assistance." (People v. Maury (2003) 30 Cal.4th 342, 389.) Our review is limited to the record on appeal and we must reject a claim of ineffective assistance "if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation." (People v. Burgener (2003) 29 Cal.4th 833, 880.) If "it is easier to dispose of an ineffectiveness claim on the ground of lack of prejudice . . . that course should be followed." (Strickland v. Washington (1984) 466 U.S. 668, 697 .)
Failure to Object to Roommate's Testimony Regarding Changed Behavior
Defendant contends his counsel should have objected to Taylor's testimony that in the few months prior to the shooting he had a slight temper and was more aggressive toward people in the apartment complex. He argues the evidence was inadmissible character evidence that showed he had a disposition to commit assaults and batteries.
Evidence of a defendant's character or a trait of his or her character, including specific instances of his or her conduct, is not admissible to prove the defendant's conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) Such evidence may be admitted to prove some material fact at issue, such as motive, opportunity, intent, preparation, common plan or scheme, knowledge, identity or absence of mistake or accident. (Evid. Code, § 1101, subd. (b).)
" 'Whether to object to inadmissible evidence is a tactical decision; because trial counsel's tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel's incompetence.' " (People v. Williams (1997) 16 Cal.4th 153, 215.) While we question defendant's premise that evidence of a slight temper and impatience shows an individual is predisposed to commit assaults, even if we assume Taylor's testimony about defendant's behavior was objectionable, trial counsel may have had a tactical reason for refraining from objecting, such as reluctance to call attention to his client's recent change of mood. Instead, defense counsel minimized Taylor's testimony on cross-examination. Counsel elicited that Taylor became defendant's roommate through Craigslist, she only saw defendant about twice a week, and they would often go days without seeing each other, thereby implying Taylor did not really know defendant that well. If there is a possibility counsel's decision was tactical, as there is here, we do not find ineffective assistance on direct appeal. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Even if we assume counsel should have objected, defendant has not shown a reasonable probability that, but for counsel's error, the result of the trial would have been different. (Ledesma, supra, 43 Cal.3d at pp. 216-218.) Bell had already testified to defendant's impatience and to seeing defendant get angry on occasion.
Moreover, there was plenty of evidence supporting defendant's guilt. The evidence showed the victim said a White guy he did not know shot him. Defendant is White, and Bell testified defendant and the victim had never worked together collecting signatures, nor had they ever interacted with each other while employed at Democracy Resources.
Taylor testified defendant told her he had a gun. Defendant admitted he went to the Democracy Resources office the day of the killing. Bell testified defendant was scheduled to work that day. Douglas, Carrigg, and Andrews all saw defendant standing in the back end of the side parking lot beside his white Dodge Neon right before the shooting. All three saw no one other than defendant in the side parking lot immediately prior to the shooting.
Within seconds of the victim exiting the building and walking towards his car in the side parking lot, five gunshots were fired from the side of the building. A few seconds after the shots were fired, Carrigg saw defendant's car reverse out of the parking lot and proceed behind the building towards the opposite side exit. Shortly after the shots, Douglas also saw defendant's car abruptly exiting from the other side of the building and proceeding towards the intersection of Auburn Boulevard and Garfield Avenue. The pizza shop surveillance video and the red-light camera video showed a car similar to defendant's damaged, white Dodge Neon leaving the scene after the shots.
Evidence also showed defendant fled the scene after the shooting. He admitted driving to Redding after he left the parking lot. Although he claimed he visited a woman named Tasha, he could not give her last name, her address, or her phone number during cross-examination. As the jury was instructed, a defendant's flight immediately after a crime is committed may show he or she was aware of his or her guilt. (People v. Mason (1991) 52 Cal.3d 909 [jury is entitled to infer consciousness of guilt from flight].)
When defendant was arrested a few days later, he was carrying a box of ammunition that was missing five bullets--the precise number of shots several witnesses testified to hearing. A criminalist compared the three bullets taken from the victim's body and the one found at the scene and determined they were all .44-caliber bullets that had been fired from a specific type of gun that took five bullets. She also opined that all the design features of the bullets in the box matched the fired bullets found in the victim's body.
Defendant's testimony was less than credible. His claim he arrived at the office around 10:30 a.m. was contradicted by the video evidence showing his car pull into the side parking lot at 11:01 a.m. His testimony that he did not go around the back of the building and pull out on Auburn Boulevard, but instead took the alley all the way to Garfield Avenue contradicted his earlier statement to police. The red-light surveillance video also showed a car remarkably similar to defendant's on Auburn Boulevard.
Given the totality of the evidence presented, defendant cannot show a more favorable result would have occurred had defense counsel objected to Taylor's brief testimony that he had a slight temper and was more aggressive immediately prior to the shooting.
Withdrawal of Request for Jury Instruction on Motive
Defendant argues his trial counsel prematurely withdrew his request to instruct the jury on motive. That instruction provides: "The People are not required to prove that the defendant had a motive to commit (any of the crimes/the crime) charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty." (CALCRIM No. 370.)
Defendant contends the prior bad acts--the charged batteries on strangers at the community college campus and at the store--were not relevant to prove motive, but were instead inadmissible character evidence. Given the alleged inadmissibility of the evidence, he contends counsel should not have withdrawn his request for the motive instruction when the prosecutor asked to reopen the evidence to present the store incident.
The record shows counsel made a strategic decision to withdraw his request for the motive instruction. The court characterized the motive issue as a "close question," and was reconsidering its tentative ruling excluding the evidence. When faced with the potential of the jury hearing the prior bad acts evidence that showed defendant had attacked complete strangers without any apparent motive on multiple occasions, counsel made a reasonable decision to withdraw the instruction request to remove the possibility of the jury hearing such evidence. Allowing the jury to hear the prior bad acts evidence would have, in our view, been highly damaging to defendant because it showed he had a propensity to attack strangers like the victim in this case.
Even assuming the trial court ultimately would have affirmed its tentative ruling excluding the evidence, the absence of the motive instruction was not prejudicial. The instruction would have merely informed the jury the absence of a motive may be a factor it could consider in determining guilt. (See CALCRIM No. 370 [recognizing motive may be a factor tending to show a defendant is guilty, and not having a motive may be a factor tending to show a defendant is not guilty].) The instruction also would have informed the jury the prosecution was not required to prove a motive, which would have been helpful to the People. (Ibid. ["The People are not required to prove that the defendant had a motive to (commit (any of the crimes/the crime) charged . . . .)"].)
As discussed above, given the evidence of defendant's guilt, defendant cannot show a more favorable result would have occurred had defense counsel not withdrawn his request for a motive instruction. The absence of an instruction telling the jury no proof of motive was required, but it may consider the presence or absence of a motive was not prejudicial in light of the evidence against defendant.
II
Sufficiency of the Evidence to Support the Murder Conviction
Defendant contends insufficient evidence supports his conviction for murder. He argues the absence of any evidence showing he had a motive to shoot the victim means the evidence was insufficient to convict him of murder. We disagree.
In assessing a sufficiency of the evidence challenge, we "review the entire record in the light most favorable to the judgment to determine whether it discloses 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." (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Hill (1998) 17 Cal.4th 800, 848.) We may not reweigh the evidence or substitute our judgment for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1220.) "[O]ur opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment." (Hill, at p. 849.) Reversal for insufficient evidence is required only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (Johnson, at p. 578.)
Viewing the evidence in the light most favorable to the judgment, we conclude sufficient evidence supports defendant's murder conviction. Defendant told his roommate he had a gun. Defendant was at the Democracy Resources office at the time of the shooting. Several witnesses testified they saw defendant standing in the back end of the side parking lot beside his white Dodge Neon right before the shooting. None of the witnesses saw anyone else in the parking lot immediately prior to the shooting.
The victim was shot almost immediately after exiting the building and walking towards the side parking lot where defendant had been seen just moments before the shooting. A few seconds after the shots were fired, Carrigg saw defendant's car reverse out of the parking lot and proceed behind the building toward the opposite side exit. Douglas also saw defendant's car abruptly exiting the parking lot from the other side of the building shortly after the shots. The pizza shop surveillance video and the red-light camera video showed a car similar to defendant's damaged, white Dodge Neon leaving the scene after the shots.
Defendant fled to Redding immediately after the shooting. He could not remember the last name, address, or phone number of the woman he supposedly visited.
Defendant was arrested upon returning from Redding while carrying a box of ammunition that matched the type of bullets recovered from the victim's body and from the pizza shop window across the street. The box of ammunition was missing five bullets--the precise number of shots fired.
Evidence showing defendant and the victim had not interacted at work plus the statements the victim made immediately after being shot that he did not know the "crazy white boy" that shot him also tended to support the inference defendant was in fact the shooter since defendant was White.
The totality of the evidence amply supported defendant's murder conviction. The fact defendant appeared to have no motive to shoot the victim does not mean insufficient evidence supports the conviction. "[E]vidence of motive is not required to establish intent to kill, and evidence of motive alone may not always fully explain the shooter's determination to shoot at a fellow human being with lethal force." (People v. Smith (2005) 37 Cal.4th 733, 741.)
Defendant's reliance on People v. Staten (2000) 24 Cal.4th 434, 442-444 and People v. Millwee (1998) 18 Cal.4th 96, 108-109, where the evidence in both cases showed the defendants had conflicted relationships with family members they killed, is misplaced. While the evidence in Staten and Millwee may have established a motive to kill in those cases, neither decision requires such a showing to convict a defendant of murder. As established case law makes clear, the prosecutor was not required to prove defendant had any motive whatsoever to shoot and kill the victim. (People v. Smith, supra, 37 Cal.4th at p. 740 [motive is not an element of the crime of murder]; People v. Daly (1992) 8 Cal.App.4th 47, 59 [noting motive is not an element of any crime]; CALCRIM No. 370 [prosecution not required to prove defendant had a motive to commit a criminal offense].)
Defendant's assertion that insufficient evidence supports the verdict because the prosecution's case was largely circumstantial is likewise without merit. A "judgment is not subject to reversal on appeal simply because the prosecution relied heavily on circumstantial evidence and because conflicting inferences on matters bearing on guilt could be drawn at trial." (Millwee, supra, 18 Cal.4th at p. 132.) The court rightfully instructed the jury that circumstantial evidence was entitled to the same weight as direct evidence (CALCRIM No. 223), and it informed the jury how to properly consider such evidence. (CALCRIM No. 224.) We presume the jury followed the court's instructions. (People v. Lewis (2001) 26 Cal.4th 334, 390 [" 'Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case' "].)
The record contains sufficient evidence showing defendant shot and killed the victim.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
DUARTE, J.