Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. GEORGE TEAL POWELL, VCR 182220
Jones, P.J.
George Teal Powell appeals from a judgment entered after a jury convicted him on one count of attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664) three counts of assault with a firearm (§ 245 subd. (a)(2)), and two counts of shooting at an inhabited dwelling (§ 246). He contends his conviction must be reversed because (1) the court erred when it characterized as voluntary certain statements that he made to the police on the night of the crime; and (2) the attempted premeditated murder count is not supported by sufficient evidence. We reject these arguments and affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant owned and lived in the upstairs portion of a residence located on Benton Street in Vallejo. On January 13, 2006, appellant rented a downstairs apartment in his residence to Barton Jackson, agreeing that Jackson could pay a portion of his rent by performing work around the property. Jackson moved into the apartment that day with the help of four friends, Jason Chapman, Ava Sadler, Chris Gorden, and Elizabeth Lanum.
That evening Jackson was relaxing in the apartment with his friends when appellant knocked on the door. Appellant was angry because he needed Jackson’s help carrying some groceries and Jackson had not answered his cell phone. Jackson told appellant that he had been busy. Appellant left.
About 20 minutes later, appellant came back downstairs and asked Jackson to introduce him to his friends. Jackson complied. Appellant left.
About 40 minutes later, appellant came downstairs a third time. He apologized for being rude earlier and brought a written rental agreement for Jackson to sign. Jackson complained that the monthly rent stated in the agreement was higher than the amount to which he had agreed. He said he would simply pack up and leave. Appellant became angry. He said he would “get the Hell’s Angels” and threatened to “kick [Jackson’s] ass.” Not wanting a confrontation, Jackson went into the bedroom to pack up.
About 45 minutes later, appellant came downstairs a fourth time. He kicked and banged on the door and threatened to shoot through it. Jackson told appellant he would not open the door. Appellant then fired three shots. The first went into the air. The second and third went into the apartment through a window in the door. Jackson felt the second shot travel over his head. Appellant went to the apartment’s bathroom, broke the window, and tried to squeeze inside. Once his body was inside, appellant started firing again.
Jackson fled the apartment to seek help from neighbors. The police arrived shortly thereafter.
Based on these facts, an information was filed charging appellant with the offenses we have set forth above. With respect to the attempted murder charge, the information alleged, as enhancements, that appellant had intentionally discharged and used a firearm within the meaning of section 12022.53, subdivisions (b) and (c). With respect to the assault with a firearm counts, the information alleged appellant had personally used a firearm. (§ 12022.5, subd. (a).)
The case was tried to jurors who convicted appellant on all counts and found the enhancements to be true. Subsequently, the court sentenced appellant to 35 years to life in prison.
II. DISCUSSION
A. Whether Appellant’s Statements to the Police Were Voluntary
Appellant contends the trial court erred when it ruled admissible certain statements that he made to the police on the night of the crime. To put this argument in context, we must provide further background.
Vallejo Police Officer Justin Farrington was dispatched to the hospital where appellant was being treated for cuts on his hand. Appellant was “very relaxed, very calm [and] easy to talk to.” Appellant appeared alert although he had a “slight or moderate” odor of alcohol about him. “[E]very now and then” appellant would slur a word.
Officer Farrington started to read appellant his rights. Appellant said he knew his rights and that he wanted a lawyer. Thereafter, Farrington did not ask appellant any questions. However, appellant began to volunteer information. He told Farrington that he had been an “expert marksman” in the military and that he “could not believe” he missed when he shot at Jackson. Appellant said “the first round that he fired at [Jackson] was a snake shot round, and he couldn’t believe that the hollow point didn’t hit him. And then he said something to the extent of, if he really wanted to kill him, he should have used a shotgun.” Appellant also told Farrington that he was “pissed off” at Jackson because he had been leaving messages for him all day on a cell phone and that Jackson had refused to call him back.
Prior to trial, appellant filed a motion to suppress the statements he made to Officer Farrington claiming they were “involuntary due to . . . intoxication and low blood oxygen concentration.”
The trial court conducted a hearing on appellant’s motion where Officer Farrington provided the testimony we have set forth above. Appellant presented testimony from Dr. David Shepard, a board certified internist, who had treated appellant over the preceding months. Dr. Shepard said hospital records from the night of the crime indicated appellant’s blood oxygen level was 91 percent, a level that he described as “borderline” and “at the lower end of the spectrum of someone who could survive without having supplemental oxygen.” The instrument used to measure appellant’s blood had a plus or minus 3 percent range of accuracy. That indicated appellant’s true blood oxygen concentration was between 88 to 94 percent. The normal range “runs from 90 to 100.” A low blood oxygen concentration “could produce any type of behavior from being combative to seemingly normal but not mentally functioning appropriately.” Alcohol would worsen appellant’s ability to “think straight.”
The trial court found, based on this evidence that appellant’s statements to Officer Farrington would be admissible at trial: “It seems to me that while the defense has presented a theory that could have an effect on the admissibility of the statements, it’s all speculation. The doctor testified to what [the] normal range of oxygen flow of the blood is, and it appears that, given the 3 percent plus or minus, Mr. Powell’s flow of oxygen was within the normal – or could have been within the normal range. There’s nothing by his actions – or his interaction with the officer to indicate that there was anything unusual. [¶] When the officer brought up the issue of rights -- and he was going to start that recitation, the defendant immediately jumps on it, ‘I know my rights, and I’m not going to talk to you. I want a lawyer.’ To me, those are not the actions of a person who doesn’t know what they’re doing. So the upshot of all that is, the People have proved that the statements were voluntary, and they’ve proved it beyond a reasonable doubt. I’m going to deny the motion. The statements may be used.”
Appellant now contends the trial court erred when it characterized as voluntary and admissible the statements he made to Officer Farrington.
An involuntary statement cannot be used against an accused in a criminal proceeding. (People v. Haydel (1974) 12 Cal.3d 190, 197.) A statement is involuntary unless it is the product of a rational intellect and a free will. (In re Cameron (1968) 68 Cal.2d 487, 498.) A statement is not the product of a rational intellect and a free will if the accused’s will to resist confessing is overborne. (Ibid.) “An accused’s will can be overborne by pressures engendered by physical or psychological coercion on the part of law enforcement officers [citations], or by the influence of a drug [citation] or insanity [citation] that impairs his ability to exercise his rational intellect and free will. If an accused’s will is overborne because of impairment of his ability to exercise his rational intellect and free will, it is immaterial whether that impairment was caused by the police, third persons, the accused himself, or circumstances beyond anyone’s control. [Citation.] Nor is it material that the officers pursued no improper purpose in eliciting the confession [citation] or that the facts related by the accused in such a confession are true [citation]. The only issue is whether the accused’s abilities to reason or comprehend or resist were in fact so disabled that he was incapable of free or rational choice. [Citation.] (Ibid.) The trial court must make that determination based on the totality of the circumstances. (Ibid.)
The prosecution bears the burden of proving a statement is voluntary by a preponderance of the evidence. (People v. Badgett (1995) 10 Cal.4th 330, 348.) On appeal we must defer to the trial court’s factual findings and then independently determine, on the facts so found, whether the statement was voluntary. (People v. Massie (1998) 19 Cal.4th 550, 576.)
Applying those principles, we conclude the trial court ruled correctly. Officer Farrington described appellant as being “relaxed, very calm, [and] easy to talk to.” Appellant was “talkative” and “cooperative” with medical personnel. It was apparent that appellant had been drinking; however, appellant did not appear to be intoxicated. Appellant’s blood oxygen level was measured at 91 percent, an amount his doctor conceded was normal and “could have no effect.” Based on this evidence, the trial court reasonably could conclude that appellant was acting rationally and that his statements to Officer Farrington were voluntary. The trial court correctly denied appellant’s motion to suppress.
None of the arguments appellant makes convince us the trial court erred. First, appellant points to other evidence in the record that suggests his statements to Officer Farrington were not voluntary. He notes for example, that Farrington stated in his police report that appellant was “obviously intoxicated.” He maintains that Farrington could not accurately determine whether appellant was alert at the hospital because he “is not a medical doctor.” Appellant also notes that since the instrument that measured the oxygen level of his blood had an accuracy range of 3 percent, it was possible that the oxygen level of his blood was as low as 88 percent, an amount that would have been below normal. Appellant maintains that under these circumstances, “the People did not meet their burden of proving the voluntariness of appellant’s statements.” We reject appellant’s argument because it fails to take into account the applicable standard of review. The trial court must determine the facts and its findings must be affirmed on appeal if they are supported by substantial evidence. (People v. Massie, supra, 19 Cal.4th at p. 576.) Here, the court found appellant’s statements to Officer Farrington were voluntary and that finding is supported by substantial evidence. “ ‘It is of no consequence that the [trial court] believing other evidence, or drawing different inferences, might have reached a contrary conclusion.’ ” (People v. Castro (2006) 138 Cal.App.4th 137, 140, quoting People v. Brown (1984) 150 Cal.App.3d 968, 970.)
Appellant also contends the trial court improperly shifted the burden of proof when it said that given the 3 percent plus or minus accuracy of the instrument that measured his blood, the level of oxygen in appellant’s blood “could have been” within the normal range. We think appellant has misread the court’s comment. The court did state that the level of oxygen in appellant’s blood “could have been” within the normal range. However, that was simply the first step in the court’s analysis. The court then evaluated appellant’s actions on the night of the crime and concluded based on those actions and the oxygen level readings that appellant was acting voluntarily. The court did not improperly shift the burden of proof.
We conclude the court correctly ruled appellant’s statement to Officer Farrington was voluntary.
B. Sufficiency of the Evidence
Appellant contends the evidence was insufficient to support his conviction of attempted first degree murder.
The standard of review we apply is familiar. We must “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Here, appellant contends the evidence was insufficient because it failed to establish one of the elements of attempted premeditated murder: a specific intent to kill.
A specific intent to kill is one of the essential elements of attempted premeditated murder. (People v. Bland (2002) 28 Cal.4th 313, 327-328.) However, because “[o]ne who intentionally attempts to kill another does not often declare his state of mind . . . the intent obviously must be derived from all the circumstances of the attempt, including the putative killer’s actions and words. Whether a defendant possessed the requisite intent to kill is . . . a question for the trier of fact.” (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)
Here, there was ample evidence from which the jurors could conclude appellant had a specific intent to kill. Appellant was angry with Jackson and he threatened to “kick [his] ass” and get the “Hell’s Angels.” Appellant’s friend Lanum testified that appellant threatened to come back and “kill everybody” in the house. Appellant then went upstairs and returned 45 minutes later with a gun. He demanded that Jackson open the door, and when Jackson refused, appellant fired two shots into the apartment through a window in the door. Jackson heard one of those shots pass over his head. Later appellant told Officer Farrington that he was an “expert marksman in the military” and that he “could not believe” he missed when he shot at Jackson. From these facts the jurors reasonably could conclude that appellant had a motive to kill Jackson, that he planned the crime during the 45-minute interval, and that he tried to murder Jackson by shooting at him through the front door of the apartment. We conclude appellant’s conviction is supported by substantial evidence.
Appellant claims the evidence was insufficient. He argues, “[t]here was ample evidence in this case, including the physical evidence, that appellant did not intend to kill Barton Jackson, but rather, in a moment of bad judgment brought on by his intoxication and hypoxia, shot through the front door in a downward direction in an attempt to get into the unit so as to get Jackson and the others, who were apparently squatting, out of the unit.” (Italics in original.) In an effort to support this premise, appellant notes that Jackson and his friends presented conflicting evidence on the specifics of the rental agreement, that Jackson and two of his friends had prior felony convictions, and that the testimony of Jackson and his friends at trial was impeached. But again, these arguments fail to take into account the applicable standard of review. On appeal, we are required to view the evidence in the light most favorable to the judgment being challenged. (People v. Johnson, supra, 26 Cal.3d at p. 578.) “ ‘It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion.’ ” (People v. Castro, supra, 138 Cal.App.4th at p. 140, quoting People v. Brown, supra, 150 Cal.App.3d at p. 970.)
Appellant’s attempted premeditated murder conviction is supported by substantial evidence.
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Needham, J.