Opinion
B233173
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM STORRS, Defendant and Appellant.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA371455)
APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa B. Lench, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant William Storrs appeals from the judgment entered following his conviction by jury of two counts of willful, deliberate, and premeditated attempted murder and one count of being a felon in possession of a firearm. (Pen. Code, §§ 664/187, subd. (a), 664, subd. (a), 12021, subd. (a).) The jury also found that in the commission of the attempted murders defendant intentionally discharged a weapon which proximately caused great bodily injury to one of the victims and as to all counts that he personally inflicted great bodily injury under circumstances involving domestic violence. (§§ 12022.53, subds. (c) and (d), 12022.7, subd. (e).) Following trial, defendant admitted that he had two prior convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) though (d) (the "Three Strikes" law) and one conviction within the meaning of section 667, subdivision (a). He was sentenced to 110 years to life in state prison. He contends the great bodily injury allegation with respect to the firearm possession charge must be stricken and the trial court abused its discretion by denying his Romero motion. We strike the great bodily injury allegation as to the firearm possession charge and affirm the judgment.
Defendant was found not guilty of a third attempted murder count.
All further undesignated statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Prosecution Case
Tiffany Willis is defendant's ex-girlfriend. They dated for about a year and the relationship ended in early May of 2010. The day Willis told defendant she no longer wanted to see him, she moved into an apartment with Kenneth Hayes, a man she had dated prior to starting her relationship with defendant. Willis called Hayes and said she was living on the streets. He invited her to stay with him. Hayes had known defendant since 2002 and thought they had a friendly relationship.
Willis admitted she had one felony and two misdemeanor convictions for crimes of moral turpitude.
Hayes admitted he had two felony and three misdemeanor convictions for crimes of moral turpitude.
A day or two after Willis broke up with defendant, she and Hayes were walking back toward their apartment after a trip to the store when they saw defendant crossing the street with a bag of bottles. Defendant wanted to speak to Willis privately, but Hayes told him to say whatever he wanted on the street. Defendant pulled out a bottle and approached Willis in a threatening manner. Hayes grabbed defendant by his wrists and told him to put the bottle away. Defendant asked Willis if she was now with Hayes. When she said she was, defendant responded, "We'll see how long that lasts," and "Ain't this a bitch." Defendant left and seemed very upset.
Willis and Hayes saw defendant a couple of days later, on May 10, 2010. (Hayes thought it was the day after the encounter in the street.) As she and Hayes approached their apartment building, Willis observed defendant coming out of its main gate. Defendant had a paper bag, from which he retrieved a gun. In a very calm voice, defendant told the couple not to say anything, scream, or move or he would shoot them. Defendant gave Willis a letter, told her to read it, and pointed the gun at her. After she took the letter, defendant put the gun in the bag and sat next to Willis. Willis started to read the letter. On the first page, the letter stated: "Tiffany Marie Willis, you are responsible for all of this. Kenny, you meddled in my affairs and smiled in my face." The letter went on to say that defendant loved Willis, but she was a "cheating, trifling bitch" and a "whore," who stabbed him in the back. The letter also indicated that defendant loved his relatives and hoped they would forgive him. As Willis read, defendant threatened to kill her, Hayes, and himself. Defendant said she had embarrassed him for the last time.
The group was in front of the building for several minutes. Hayes tried to reason with defendant. At one point, Willis began to whisper to Hayes. Defendant told her to shut up or he would shoot Hayes. She complied. Defendant then asked Willis to come with him, but she said if he was going to shoot her, he would have to do so there.
A neighbor, Victor Bouzi, walked up carrying his mail. As Bouzi started to go by to enter the apartment building, Hayes told him to call 911 because defendant had a gun and was holding them hostage. Defendant asked Hayes if he was going to call the police. Defendant pulled the gun out of the bag and shot Hayes. Defendant turned toward Willis and fired. Willis fell or jumped into some bushes near the steps. She was not struck by the gunfire. As she lay on the ground, she heard Bouzi pleading for his life and the sound of three or four gunshots.
Bouzi came to Willis and told her defendant was gone. He asked Willis to help him find his keys. Willis saw that Bouzi was bleeding from his back and hand. She remained at the apartment until she was contacted by police.
After he was shot, Hayes ran down the street, jumped a couple of fences, and ended up in the backyard of a house on the next block. He called 911. Police officers located him and called for an ambulance. He spoke to officers while waiting for medical help to arrive. The bullet that struck Hayes went through his throat and lodged in his shoulder. He spent 10 days in the hospital, underwent two surgeries, and was unable to speak for a period of time.
Los Angeles Police Department Officers Ali and Zavy were responding to a call of a shooting at the apartment. As they approached the location, Officer Ali saw Bouzi in the middle of the street saying he had been shot. Bouzi was bleeding from his left shoulder and hand. The officers summoned an ambulance. As he waited for the arrival of medical assistance, Officer Ali interviewed Bouzi.
The officers went to the apartment building, spoke to Willis, and walked around the property. They found a brown paper bag and a letter in the front yard near the sidewalk. The letter was the one defendant had asked Willis to read. There was a sticker on either the letter or an envelope that had the name Mavis Storrs on it. Mavis Storrs is defendant's mother.
II. The Defense Case
Defendant knew Kenneth Hayes, having met him in either 1999 or 2000. When they met, they were both addicted to drugs. Because of their common problem, they gravitated toward one another. Defendant considered Hayes a friend and never had any prior difficulties with him.
Defendant admitted he had three felony convictions for crimes of moral turpitude.
Defendant met Tiffany Willis in 2008. They started dating shortly thereafter, and after a year, she began living with defendant in his mother's home. Although he loved her very much, their relationship was tumultuous. On several occasions, their arguments turned into physical altercations. He admitted to striking Willis on one occasion after she spit at him.
For about a month and a half before they broke up, defendant and Willis were homeless. He took care of all of Willis's needs. Defendant raised money by begging, borrowing, and stealing. Although Willis had previously earned money by being a prostitute, defendant forbade her from doing so while they were in the relationship. However, he was aware Willis engaged in prostitution during the time they were dating. Defendant did everything he could to make enough money so she would have no reason to do so.
Because Willis wanted to continue to make money by streetwalking, their relationship deteriorated. He had heard that while he and Willis were dating, she was seeing Hayes and defendant believed that was the case despite her denials. One day, defendant left Willis at a friend's house to look for a motel room for the two of them. When he returned, the friend said Willis had left with Hayes. Defendant was angry and hurt.
The next day, defendant saw Willis at the laundromat, folding men's clothing. The clothes were not his. He asked her where she had been. Willis claimed she was at the home where he had left her. They argued and defendant asked her if she was going to come to his mother's house. She said she might later, but he knew she was lying. Defendant stormed off.
Defendant saw Willis and Hayes later that afternoon. Defendant approached the couple and said he wanted to talk to Willis in order to clarify their relationship. He did not threaten Willis with a bottle. Willis wanted nothing to do with him and acted as if she was afraid. Defendant asked her if Hayes was her new man. When she said that he was, defendant walked away. Her response "ripped [his] heart out." He felt as if Hayes "stabbed [him] in the back."
The following day, he saw Willis and Hayes leave their apartment. Defendant knew that Hayes began living in that apartment two or three weeks before defendant's relationship with Willis ended. When defendant saw the couple, he became angry and left to retrieve a gun from a friend. After a few minutes, he returned and wrote the letter that he later asked Willis to read. He wrote the letter to apologize to people for the events that were about to take place. At the time, defendant intended to kill Willis and Hayes.
After he finished the letter, he walked across the street to the couple's apartment. He tried to open the gate in front of the building, but it was locked. As defendant turned to leave, he saw Willis and Hayes returning. All of the anger, pain, and betrayal he had felt over the past few days returned. At the time defendant confronted Willis and Hayes, he "was guided by something other than rational thought."
After saying some hurtful things to Willis, he shot Hayes to "erase all of the hurt [he] felt." He also shot Hayes because he "felt Kenny Hayes was my friend and he stabbed me in the back." Defendant intended to kill himself, but discovered the gun was loaded with five rounds, not the customary six. Although defendant fired five times, he aimed only once when he discharged the first shot at Hayes. When informed that the neighbor, Bouzi, was injured, defendant said that was unintentional. He denied shooting at Willis. He was a marksman in the military and if he had shot at her, he would have killed her. After defendant stopped firing the gun, he ran.
Defendant realized that he had testified to committing several crimes and believed he had done something for which he should be punished. When he was arrested five days later, defendant gave the police a false name and date of birth.
After the defense rested, the parties presented evidence with respect to whether Willis had told defendant she no longer wanted to see him because she was tired of being beaten.
DISCUSSION
I. The Great Bodily Injury Finding as to the Felon in Possession of a Firearm Charge Must Be Stricken
As noted, defendant was convicted of being a felon in possession of a firearm with the finding that he inflicted great bodily injury under circumstances involving domestic violence. He contends there is insufficient evidence showing that his possession of the firearm had anything to do with the injury Hayes suffered "[b]ecause it was [his] actions with the gun, not his possession of the gun that amounted to the incident of domestic violence in the case at hand." We agree.
The Attorney General argues the plain language of the statute states that section 12022.7, subdivision (e) does not apply to only three crimes: murder, manslaughter, and arson. (§ 12022.7, subd. (g).) She asserts that must mean the enhancement attaches to every other crime. Her interpretation is incorrect. As the Supreme Court observed, the crimes not subject to a finding of great bodily injury each "incorporates enhanced sentencing for such injury." (People v. Cross (2008) 45 Cal.4th 58, 66, fn. 3.) "Section 12022.7 is a legislative attempt to punish more severely those crimes that actually result in great bodily injury. [Citation.] It applies except where serious bodily injury is already an element of the substantive offense charged. [Citation.]" (People v. Guzman (2000) 77 Cal.App.4th 761, 765.) Thus, the language in section 12022.7, subdivision (g) was not intended to limit the statute's application to only those crimes listed. Instead, the Legislature wanted to make it clear that a crime that necessarily includes the infliction of great bodily injury cannot be enhanced a second time.
We recognize the crime of arson does not necessarily lead to the infliction of great bodily harm. However, the arson statutes include enhanced punishment where the setting of a fire causes the infliction of great bodily injury. This explains why the crime is listed in section 12022.7, subdivision (g).
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The Attorney General fails to address defendant's argument that he did not inflict great bodily injury in the commission of the crime of possessing a weapon. The thrust of defendant's claim is that the mere possession of a weapon cannot cause an injury. To cause injury, he urges, the weapon must be used in some fashion. A case not cited by either party, People v. Arzate (2003) 114 Cal.App.4th 390, supports defendant's contention. In that case, the defendant shot a deputy sheriff who had stopped him for speeding. He was convicted of attempted murder of a peace officer, assault with a firearm on a peace officer, and carrying a concealed firearm in a vehicle. The jury also found, as to all counts, that the defendant used a firearm and inflicted great bodily injury. (Id. at p. 398.) The defendant argued the true findings of use of a firearm and infliction of great bodily injury as to the concealed firearm count had to be stricken. The appellate court agreed with the defendant, explaining that the offense of carrying a concealed weapon in a vehicle was completed by the defendant's single passive act of having the weapon in the car. Thus, the "gun use and infliction of great bodily injury were not committed in the commission of the static offense of carrying a concealed weapon in a vehicle." (Id. at p. 401.)
The same reasoning applies here. Defendant committed the crime of being a felon in possession of a firearm when he obtained the gun from his friend before confronting Willis and Hayes. His possession of the gun did not cause the injury to Hayes. Instead, it was defendant's subsequent act of firing the weapon that did. It was defendant's act that provided the factual underpinnings for the attempted murder charges and it can logically be said that in the commission of those crimes he inflicted great bodily injury. We conclude that "infliction of great bodily injury [was] not committed in the commission of the static offense of [being a felon in possession of a firearm]." (People v. Arzate, supra, 114 Cal.App.4th at p. 401.)
Accordingly, the jury's true finding on the great bodily injury allegation as it relates to the felon in possession of a firearm charge must be stricken. We note the abstract of judgment need not be modified as it does not reflect that a sentence was imposed for that enhancement. II. The Court Did Not Err by Denying Defendant's Romero Motion
Defendant suffered two prior serious felony convictions within the meaning of the Three Strikes law. One was for first degree burglary in 1988 and the other was for robbery in 1992. He filed a motion pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497, requesting that the trial court strike his prior serious felony convictions. Defendant asked the court to consider several factors: (1) he acted under the influence of emotional turmoil; (2) his prior strikes were remote; (3) his criminal history was decreasing in seriousness; and (4) he was of good character.
In opposition, the prosecutor noted that defendant had three additional felony convictions, all occurring after the 1992 robbery. He had three drug-related convictions, two for violations of Health and Safety Code section 11352 (1996 and 2001) and one for a violation of Health and Safety Code section 11350 (2005). The prosecutor also observed that defendant was on parole when he committed the instant violent crimes of attempted murder. He argued the interest of justice would not be served by the court striking defendant's priors.
Although the trial court recognized that defendant's prior serious felony convictions were remote, it concluded that defendant "has not remained crime-free since that time, having picked up at least three convictions . . . . And given the nature of this offense, I don't believe it would be in the interest of justice to strike the strikes."
Defendant complains the court did not consider the individual factors he cited that justified granting his Romero motion. He asserts the court simply relied on the fact that he had not remained crime-free since the robbery conviction in 1992. Defendant accuses the court of "blinding itself to [his] actual circumstances and rul[ing] on his motion with unlawful antipathy towards him as a defendant." Not so.
We review a trial court's failure to strike a prior conviction for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) Defendant carries the burden to clearly demonstrate that the sentencing decision constituted an abuse of discretion. If he fails to do so, we presume the trial court acted to achieve the legitimate sentencing objectives of the Three Strikes law. (Id. at pp. 376-377.) The court's decision in this matter was far from irrational or arbitrary.
The question to be answered is "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, . . . defendant may be deemed outside the [Three Strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) Defendant's assertion that he shot Hayes because he was blinded by his love for Willis is hardly a mitigating circumstance. He cites no authority to support his view that, given the facts of this case, a crime committed in the throes of passion is entitled to more lenient punishment. Defendant's assertion that his prior crimes are of decreasing seriousness ignores the fact that the current offense was more violent than any other he had previously committed. He shot Kenneth Hayes in the throat at close range and fired four additional rounds. Although the jury did not convict defendant of attempting to murder Victor Bouzi, the fact remains he shot Bouzi twice. Contrary to defendant's complaint, the trial court specifically relied on the nature of the current case in addition to defendant's extensive record when refusing to strike his prior convictions.
We recognize that defendant presented evidence of good character. His family loved and depended on him. We note that his prior serious felony convictions are remote. However, these factors are far outweighed by the other considerations we have set forth that establish defendant is not outside the spirit of the Three Strikes law. "Plainly the Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders." (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 528.) Defendant is such an offender.
Defendant's reliance on People v. Bishop (1997) 56 Cal.App.4th 1245 does not help his cause. There, the 50-year-old Bishop was charged with the theft of six video cassettes from a drugstore. Bishop's record consisted of petty theft convictions and three prior strike convictions. One of his strikes, a robbery conviction, was over 20 years old. The other two strikes, a robbery and assault conviction, were from the same case and were almost 20 years old. (Id. at pp. 1247-1248.) The trial court struck two of the strikes for the following reasons: the strikes were remote and the current crime was nonviolent. It sentenced the defendant to 12 years. (Id. at pp. 1248-1249.) The People appealed. Noting that sentencing decisions are not reversed simply because reasonable people might disagree (id. at pp. 1249-1250), the appellate panel concluded that "[o]n this record, we cannot say that the trial court's decision to dismiss two of Bishop's strike in furtherance of justice constituted an abuse of discretion." (Id. at p. 1251.)
What is to be distilled from Bishop is that trial courts are afforded broad discretion when it considers a Romero motion. Just as the People in Bishop could not establish that the judge's sentencing decision was irrational or arbitrary, defendant cannot do so here. Even assuming defendant's and Bishop's cases were similar (they are not—the most glaring difference is that defendant's current offense was attempted murder and Bishop's was petty theft), because we cannot say that no reasonable judge would concur with the trial court's decision to deny defendant's Romero motion, no abuse of discretion occurred. (People v. Carmony, supra, 33 Cal.4th at p. 377.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
EPSTEIN, P. J.
WILLHITE, J.