Opinion
A116692
4-22-2008
THE PEOPLE, Plaintiff and Respondent, v. JUSTON MICHAEL POTTS, Defendant and Appellant.
Defendant Juston Michael Potts, who is also known as "Knyva," was found guilty of first degree murder of Shani Holloway and sentenced to 25 years to life imprisonment, plus a consecutive term of 25 years to life for his use of a firearm in committing the murder. The killing appears to have arisen out of a relatively minor disagreement concerning the manner of promoting defendants music, and defendant challenges the sufficiency of the evidence to establish that the killing was premeditated and deliberate. He also challenges the imposition of stayed sentences for two additional enhancements for use of a firearm. We find no merit to these contentions and shall affirm.
Background
At trial there was substantial evidence of the following. Justin Tensley was Holloways boyfriend and lived with Holloway and Shani Holloways son, Leroy Lackland. Holloway was a music promoter "starting her [own] record label . . . called All in One Promotions" and wanted to promote Knyvas music.
Justin Tensley testified that he and Holloway first met defendant, who was well known in the underground rap community, four or five months before Holloway was killed. The three entered into a business relationship which "started off pretty intact on [a] business level. Then it started getting kind of rocky." Holloway and Tensley met with defendant and a man named "Chief," whom Tensley described as possibly defendants manager, approximately one month before Holloway was killed. The meeting "started off pretty intact, you know, business ethics [and] all that. But once we started getting around to the paperwork it was like [defendant and Chief] were just trying . . . to get us to promote some songs that were previously on somebody elses album. So we were . . . trying to tell these guys if you want this song on this CD you have to get this gentleman to, you know, give you permission and when theyre saying they gave us permission, his word, verbal agreement." Tensley did not accept defendants representation that he had permission to use a particular song. There were constant disagreements regarding defendants desire to use other peoples music without permission. "Any time we tried to discuss promoting music . . . that always came up." Nevertheless, Tensley also testified that relations with defendant were friendly.
On the afternoon of June 6, 2004, Holloway and Tensley had plans to meet defendant at their home in Hercules, but defendant did not appear. Later that day, as Tensley and Holloway were driving to a friends house to watch a basketball game, they saw defendant. Holloway "flagged him down, asked him where he was going. And he said he was going to El Pueblo, and that . . . he needed a ride." Holloway suggested that defendant join them at their friends house but Tensley said, "thats not our house, and we dont know if theyll let him come up." The three drove to the friends house, and when they arrived defendant remained in the car while Tensley and Holloway asked if defendant could join them. The friend declined to invite defendant in, and Holloway and Tensley returned to the car and asked defendant if they could drive him anywhere.
Defendant asked to be taken to an apartment complex called Peppermill in Pittsburg. Once there, defendant directed Tensley where to park and the three began discussing business. Tensley and Holloway "were talking about being on the radio, making his music for the radio." Defendant "wasnt too happy about that. He said that he didnt want to be on the radio." Tensley and Holloway were not "happy to hear that. . . . [T]hat doesnt make no sense. If you want to make music and make a lot of money, how are you going to do it and not be on the radio?" They told defendant they did not understand his concern, but defendant maintained that he did not want his music presented in a manner associated with mainstream music. Defendant got out of the car, saying, " `Fuck the radio. The radio is not shit. Im not trying to do that, and Ill be right back. " When he got out of the car, he "[h]ad a phone on his lap. The phone hit the ground, shattered everywhere. He picked up all the phone piece[s]. He didnt even put the phone back together. Put it in the pocket, and he went over to" an SUV that was parked nearby. Tensley and Holloway remained in the car discussing the issue of radio promotion. As they talked, the SUV pulled closer to them. Defendant was walking next to the SUV and speaking to the driver. Then "he walks up on the passenger side [of Tensleys car], and he didnt say a word or anything like that and extended his arm, out and that was it—pow. Pow. [¶] . . . [¶] After he shot her I seen him. And she falls over to her side. And then Im looking at him while he has his arm extended out, and after we looked at each other [in] the eyes—he darts off. He jumps in the SUV. They pull off." Tensley took Holloway to the hospital, where she died that evening.
Michael Russell testified that on the day Holloway was shot, he was in an SUV being driven by his girlfriend, Harun. They saw defendant at the apartment complex "in the middle of [the] street flagging us down." Russell and Harun told defendant "to get in. We were having a barbecue. And he told her that somebody was talkin about his mama. And she said did he want me to take care of it. He said, `no. We asked him did he have some money for some meat. He said, `Hold on a minute. Ill be right back. " He then walked to another car, then "walked back to the car and said, `lets go. " Defendant was "normal" when he returned to the SUV. He got in the back seat and "told us to drive off. Then he said he had to slap that bitch." Harun asked what he meant, and defendant replied, "I had to pop that bitch." Russell began screaming, "Get him out of the car," and they dropped off defendant.
Defendant was charged by information with one count of murder (Pen. Code, § 187), with allegations that he personally used and intentionally discharged a firearm in the commission of the crime. (§ 12022.53, subds. (b), (c) & (d).) Defendant pled not guilty and not guilty by reason of insanity. Following a nonjury trial, the court found defendant sane and guilty of first degree murder and found all three of the firearm enhancements to be true. Defendant was sentenced to 25 years to life imprisonment for the murder, plus a consecutive 25 years to life for the enhancement of personally discharging a firearm proximately causing death, plus 10- and 20-year terms for the other two firearm enhancements, which were stayed. Defendant has timely appealed.
All statutory references are to the Penal Code unless otherwise indicated.
Because defendant raises no issue on appeal regarding the rejection of the insanity defense, we have not summarized the evidence relating specifically to this defense.
DISCUSSION
Evidence of premeditation and deliberation
Defendant first argues that there was no substantial evidence to support a finding that he killed Holloway with premeditation and deliberation, so that the conviction should be reduced to second degree murder.
In People v. Anderson (1968) 70 Cal.2d 15, the Supreme Court set forth guidelines for determining whether evidence supports a finding of premeditation and deliberation. "The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing-what may be characterized as `planning activity; (2) facts about the defendants prior relationship and/or conduct with the victim from which the jury could reasonably infer a `motive to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of `a pre-existing reflection and `careful thought and weighing of considerations rather than `mere unconsidered or rash impulse hastily executed [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a `preconceived design to take his victims life in a particular way for a `reason which the jury can reasonably infer from facts of type (1) or (2)." (Id. at pp. 26-27, italics omitted.) "The Anderson analysis was intended only as a framework to aid in appellate review; it did not propose to define the elements of first degree murder or alter the substantive law of murder in any way. [Citation.] . . . The Anderson guidelines are descriptive, not normative." (People v. Perez (1992) 2 Cal.4th 1117, 1125.)
Here, the trial court found that "this killing was deliberate [and] premeditated. The defendants comments before and after illustrate this consideration or his consideration of the question of killing the victim. He told Harun and Mr. Russell that he had to do something to the girl. That he would [take care] of it, and hed be back in a minute. Within seconds of making that very statement he walked directly to the car and fired upon the victim. Moments after the shooting he explained that he had to `slap that bitch. He had to `pop that bitch. Therefore, I find that the defendant is guilty beyond a reasonable doubt of first degree premeditated and deliberate murder."
Defendant makes much of the fact that many of the circumstances of the killing could not have been anticipated: "Had Holloway never seen [defendant] walking on the street, had Holloways friend welcomed [defendant] into her home, had Tensley decided not to wait in the small white car, had the SUV not been [there] to retrieve a barbecue, had [Harun and Russell] not been driving along Peppermill at the very moment [defendant] left the small white car[,] . . . the tragic outcome of that day" would not have occurred. Nonetheless, there was ample evidence to support an inference of planning. Although there was no evidence that defendant planned the murder days or even hours before the shooting, he told his friends that Holloway was "talkin about his mama," declined his friends invitation to "take care of it," then instructed them to wait while he returned to Tensley and Holloway. While the Supreme Court has "defined `deliberate as ` "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action," " and " `premeditated as ` "considered beforehand," " "[p]remeditation and deliberation can occur in a brief interval. `The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." " (People v. Memro (1995) 11 Cal.4th 786, 862-863; People v. Perez, supra, 2 Cal.4th at p. 1127 ["premeditation can occur in a brief period of time. `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 "].)
As for motive, there was ample evidence that defendant and Holloway had an ongoing dispute regarding both the manner in which she wanted to market his music and his apparent desire to present the music of others as his own. Although killing Holloway over such a disagreement may not have been a rational response, and in fact may be inexplicable, "the law does not require that a first degree murderer have a `rational motive for killing. Anger at the way the victim talked to him [citation] or any motive, `shallow and distorted but, to the perpetrator, genuine may be sufficient." (People v. Lunafelix (1985) 168 Cal.App.3d 97, 102.) Moreover, the manner of killing—by shooting Holloway in the neck at close range—is also evidence to support a finding of deliberation. (See, e.g., People v. Bloyd (1987) 43 Cal.3d 333, 348 ["The manner of killing . . . was very strong evidence of deliberation and premeditation: The evidence described actions that were cold and calculated—execution-style killings, shots to the head"].)
While the evidence undoubtedly would have supported a finding consistent with defendants view of the case—that this was "a killing propelled by an unconsidered and rash impulse rather than the product of reflection and weighing of consequences for and against the act"—that is not the test on appeal. "[T]he relevant question on appeal is not whether we are convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt that defendant premeditated the murder." (People v. Perez, supra, 2 Cal.4th at p. 1127.) Reviewing the entire record in the light most favorable to the judgment, as we must (People v. Bolin (1998) 18 Cal.4th 297, 331), there is sufficient credible evidence reasonably to support the conclusion that, in firing two shots into Holloways neck at close range, defendant acted with premeditation and deliberation.
Sentencing
Defendant also argues that the trial court erred in imposing but staying two of the sentence enhancements for use of a firearm, contending that the trial court instead should have struck the additional enhancements.
Defendant acknowledges that he did not raise this issue in the trial court, but he is correct that he may challenge a sentence as unauthorized for the first time on appeal. (People v. Smith (2001) 24 Cal.4th 849, 852 [there is "a narrow exception to the waiver rule for ` "unauthorized sentences" or sentences entered in "excess of jurisdiction" "].)
"Section 12022.53 prescribes substantial sentence enhancements for using a firearm in the commission of certain felonies." (People v. Palacios (2007) 41 Cal.4th 720, 723.) The subdivisions of section 12022.53 that the trial court found applicable in this case are subdivisions (b), (c) and (d), all of which provide for an enhanced sentence when a firearm is used in the commission of murder, among other crimes. Subdivision (b) increases the sentence by 10 years if the defendant "personally uses a firearm," subdivision (c) increases the sentence by 20 years if the defendant "personally and intentionally discharges a firearm," and subdivision (d) mandates an additional prison term of 25 years to life if the defendant "personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice."
Subdivision (f) of section 12022.53 provides, "Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment." Somewhat confusingly, subdivision (h) provides, "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."
Section 1385 permits the trial court to strike additional enhancements in certain circumstances "in furtherance of justice."
California Rules of Court, rule 4.447 provides, "No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendants service of the portion of the sentence not stayed."
Interpreting these various provisions, the court in People v. Carrasco (2006) 137 Cal.App.4th 1050 held that additional firearm enhancements under section 12022.53 should be imposed and stayed, not stricken. "In People v. Bracamonte (2003) 106 Cal.App.4th 704, the court discussed the apparent conflict in section 12022.53, subdivisions (f) and (h). Subdivision (f) states that only one enhancement may be imposed under section 12022.53, but subdivision (h) prohibits striking any enhancement imposed under section 12022.53. Harmonizing the two sections, the Bracamonte court held that each section 12022.53 enhancement should be imposed with a stay of execution for all but the enhancement with the greatest term of imprisonment." (People v. Carrasco, supra, 137 Cal.App.4th at p. 1061, citing Bracamonte, supra, at p. 713 & Cal. Rules of Court, rule 4.447.)
The continuing validity of this interpretation is an issue now pending before our Supreme Court in People v. Gonzalez (rev. granted March 14, 2007, S149898). There being no countervailing authority at this time, pending further guidance we deem it appropriate to adhere to the existing rule. The trial court did not err in imposing and staying the additional enhancements.
DISPOSITION
The judgment is affirmed.
We concur:
SIGGINS, J.
JENKINS, J.