Opinion
D073118
02-22-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM OLIVER SUMPTER, JR., Defendant and Appellant.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Christine Levingston Bergman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1303258) APPEAL from a judgment of the Superior Court of Riverside County, Anthony R. Villalobos, Judge. Affirmed. Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted William Oliver Sumpter, Jr., of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) and made true findings that he (1) personally used a firearm in the commission of the offense (§§ 1192.7, subd. (c)(8), 12022.5, subd. (a)) and (2) inflicted great bodily injury causing the victim to suffer permanent paralysis (§ 12022.7, subd. (b)). On appeal, Sumpter claims that the jury's finding of premeditation and deliberation is not supported by sufficient evidence, the court erred in instructing the jury on imperfect self-defense, and his counsel was ineffective for failing to request a pinpoint jury instruction regarding the effect of provocation on premeditation and deliberation (see CALCRIM No. 522). We conclude Sumpter has failed to establish reversible error and accordingly affirm.
Further unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
Sumpter, who was known by the name "Red," and the shooting victim, Juan E., were friends. One of their mutual friends, Justin C., obtained a "party bus" for his birthday and invited Sumpter and Juan to celebrate with him on the bus as it traveled around town and stopped at bars. Although Juan's role during the party was to act as "security" and manage any unruly guests, he was not armed. Justin and Sumpter had guns on the bus if needed. At one point in the evening, there were 12 to 15 guests on the bus, including Juan's companion, Nicole P.; Sumpter's girlfriend, Lindsay O.; Brittany J.; and Haley H. Juan and Nicole were sitting in the front of the bus near the driver, with Sumpter and Lindsay sitting across from them. Everyone was drinking and having a great time.
As the bus was going, Juan was using Justin's cell phone, and someone else was trying to call in on the other line. Sumpter demanded the phone, to which Juan said, "Hold on. I got somebody on the other line." Sumpter suddenly tried to snatch the phone out of Juan's hand, and Juan felt "disrespected." The two began yelling and fist fighting, and Juan was dominating the fight. Several other partygoers crowded around and tried to break up the fight, which ended within two minutes. A decision was made that Juan and Sumpter should leave the bus, possibly to continue fighting outside. The bus stopped in a residential neighborhood, Juan got off the bus with Nicole, and they began walking away as he said to her, "I just whooped that white boy's ass."
When Juan was about 10 feet away from the bus, Sumpter shot him three times from behind with a gun—in the neck first, causing immediate immobilization, and then two more times in the right thigh and foot. Sumpter was standing by the door outside the bus, and Lindsay was outside as well. Nicole attempted to aid Juan, who survived his gunshot wounds but became paralyzed from the neck down.
Right after the shooting, Sumpter and Lindsay reboarded the bus, Sumpter instructed the driver to "go, go, go," and threatened everyone on the bus to stay silent by saying things like, "You didn't see anything" or "No one saw nothing." Sumpter and Lindsay got off the bus a few miles away from where the shooting occurred, and he told her to stay in a dirt lot while he continued walking. Police officers found her lying face down in the dirt lot, in shock.
Subsequently, Nicole, Brittany, and Haley identified Sumpter as the shooter. Juan identified Sumpter as the person he fought with before he was shot from behind. Lindsay denied seeing the actual shooting, but described how Sumpter and Juan fought on the bus and then she heard gunshots outside the bus. Sumpter was charged for his involvement in Juan's shooting.
Following a jury trial, Sumpter was convicted of one count of attempted murder with premeditation and deliberation (§§ 664, 187, subd. (a)); personal use of a firearm in the commission of the offense (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)); and inflicting great bodily injury causing Juan to suffer permanent paralysis (§ 12022.7, subd. (b)). Sumpter filed a timely appeal.
DISCUSSION
I. Sufficient Evidence Supports Premeditation and Deliberation
Sumpter contends that insufficient evidence supports the jury's finding of premeditation and deliberation. He does not challenge the sufficiency of evidence to support the finding that he intended to kill Juan.
A defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. A defendant acted with premeditation if he decided to kill before completing the act of attempted murder. (CALCRIM No. 601; §§ 189, 664, subd. (a).) "The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." (CALCRIM No. 601; People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson).)
In Anderson, our Supreme Court identified three basic categories of evidence pertinent to the determination of premeditation and deliberation in the context of murder: (1) facts prior to the killing that may be characterized as planning activity; (2) facts about the defendant and victim's relationship that support a motive for the killing; and (3) facts about the manner of killing, which support an inference that it was done according to a preconceived design. (Anderson, supra, 70 Cal.2d at pp. 26-27 [discussing that the present case lacked any of the three types of evidence].) "In identifying categories of evidence bearing on premeditation and deliberation, Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation." (People v. Perez (1992) 2 Cal.4th 1117, 1125 (Perez).) "The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (Ibid.)
"Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate [attempted] murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation that was previously set forth. Settled principles of appellate review require us to review the entire 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—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.] The standard of review is the same in cases . . . where the People rely primarily on circumstantial evidence." (Perez, supra, 2 Cal.4th at p. 1124.)
Here, the record contains all three of the Anderson types of evidence to support a finding of premeditation and deliberation. The jury heard, step-by-step, what occurred on the party bus right up until the shooting, including how the defendant, victim, and eyewitnesses boarded the bus and ended up exactly where they did. The People presented testimony from a variety of perspectives, including the victim Juan, his companion Nicole, Sumpter's girlfriend Lindsay, party attendees Brittany and Haley, the "birthday boy" Justin, and another of Justin's friends, Aaron G. The jury further heard evidence of Sumpter's relationship with the victim and their circle of friends in general; the dynamic between Sumpter, who is Caucasian, and Juan, who is Hispanic; Sumpter's possession of a gun; how he committed the shooting; and what happened afterward.
Based on the evidence, Sumpter became motivated to kill Juan after being beaten by him on the party bus—as revenge, to maintain his social or racial status, and/or to prevent further humiliation. The fact that Sumpter shot and hit Juan three times in rapid succession, without shooting Nicole who was standing right next to him, supports that Sumpter had reached a cold, calculated decision to kill. (See People v. Hillery (1965) 62 Cal.2d 692, 704 [directly plunging a lethal weapon into the chest and leaving victim to die evidences a premeditated and deliberate intention to kill].) The jury could reasonably infer that Sumpter formulated a plan to kill Juan, which involved shooting him from behind and using the bus as a getaway vehicle. (See People v. Villegas (2001) 92 Cal.App.4th 1217, 1224 [carrying a loaded gun at time of incident combined with perceived threatening conduct from the victim supported a plan to kill].) The evidence shows that Sumpter seamlessly disabled Juan, instructed the driver to speed away, and took thoughtful steps to avoid detection by law enforcement, such as threatening guests and distancing himself from the crime scene and the person with whom he was last seen—all of which support a finding of deliberation and premeditation.
On appeal, Sumpter draws inferences from the evidence to support his contention that he acted impulsively and spontaneously. For example, Sumpter argues that the fight on the party bus was likely to produce an irrational, emotional response in him and that his placement of the bullets on Juan's body (in three different locations) was not "so exact" as to necessarily indicate a premeditated killing. The jury did not draw the inferences he urges, and we may not do so on appeal. The jury's finding is supported by substantial evidence.
II. No Harm in Court's Instructing on Imperfect Self-defense
Under People v. Breverman (1998) 19 Cal.4th 142 (Breverman), trial courts have a sua sponte duty to instruct on lesser included offenses that are supported by substantial evidence even if they are inconsistent with or contradict the defendant's theories. (Id. at pp. 161-162.)
Sumpter contends the trial court prejudicially erred in instructing the jury on the lesser included offense of attempted voluntary manslaughter based on imperfect self-defense. He objected to the instruction on the ground that no substantial evidence supported it, pointing out that the victim was "walking away" from Sumpter at the time he was shot. He further argued that inconsistent defense theories would cause the jury to discredit all of them.
Over defense objection and relying on Breverman, supra, 19 Cal.4th at pages 148-149, the trial court instructed the jury with CALCRIM No. 604. The court discussed that there was some evidence Sumpter and the victim were going to continue fighting outside the bus, and if the jury chose to believe that evidence, it might find that Sumpter shot Juan under an unreasonable belief of the need for self-defense.
In closing arguments, the prosecutor argued that no evidence supported imperfect self-defense and the instruction was not applicable. In addition, the prosecutor argued that the supposed provocation to support heat of passion—the fight over Justin's cell phone—was legally insufficient to provoke a shooting.
Defense counsel primarily argued that Sumpter had been misidentified as the shooter and, secondarily, if the jury somehow believed he was the shooter, then there was no proof Sumpter intended to kill or premeditated and deliberated his actions. Defense counsel said he was "not going to get into" the instructions on heat of passion and imperfect self-defense with the jury, calling them "internally inconsistent and weird . . . ."
We will assume for purposes of analysis that substantial evidence did not support an instruction on imperfect self-defense, which requires that a defendant acted under the unreasonable but good faith belief he was "in imminent danger of being killed or suffering great bodily injury." (CALCRIM No. 604.) We review the giving of a legally correct jury instruction that has no application to a case under the Watson test (People v. Watson (1956) 46 Cal.2d 818, 836), determining whether it is reasonably probable the defendant would have obtained a more favorable outcome without the instruction. (Guiton, supra, 4 Cal.4th at pp. 1129-1130.) "[I]nstruction on an unsupported theory is prejudicial only if that theory became the sole basis of the verdict of guilt; if the jury based its verdict on the valid ground, or on both the valid and the invalid ground, there would be no prejudice, for there would be a valid basis for the verdict." (Id. at p. 1130.) In reviewing for prejudice, we examine the "entire record." (Ibid.)
The error was not one of federal constitutional dimension. (Breverman, supra, 19 Cal.4th at p. 165 [instructional error on lesser included offenses in a noncapital case "is, at most, an error of California law alone" subject to the Watson test]; People v. Guiton (1993) 4 Cal.4th 1116, 1130 (Guiton).)
In this case, the superfluous jury instruction on attempted voluntary manslaughter based on imperfect self-defense was harmless. As we have discussed, substantial evidence supports the jury's verdict of attempted murder with premeditation and deliberation, and we are not convinced by Sumpter's argument that the imperfect self-defense instruction delegitimized his entire defense. Notably, the primary issue before the jury was the shooter's identity since Sumpter was known by a different name and each of the eyewitnesses was laboring under a certain degree of intoxication. Once the jury believed Sumpter was the shooter, there was very little question regarding his intent to kill given his choice of weapon, the physical evidence, and his subsequent conduct. The record does not show that the jury failed to consider all the issues on which it was instructed, including the issue of whether Sumpter was provoked. Based on its finding of premeditation and deliberation, the jury necessarily rejected the theory that Sumpter acted rashly, impulsively, or in the heat of passion. The court did not commit reversible error.
III. Sumpter Has Failed to Establish a Claim of Ineffective Counsel
Sumpter's final claim is that his trial counsel was ineffective for failing to request a modified version of CALCRIM No. 522 to instruct the jury that it should consider the effect of provocation on the issue of premeditation and deliberation. CALCRIM No. 522 is primarily concerned with the effect of provocation on the degree of murder, although it can be modified to state that provocation may reduce an attempted murder to an attempted manslaughter. CALCRIM No. 522 is a pinpoint instruction, which a trial court has no sua sponte duty to give. (People v. Rogers (2006) 39 Cal.4th 826, 878 (Rogers).) We identify neither a deficient performance from counsel nor any prejudice from the failure to request such an instruction. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); see People v. Hernandez (2010) 183 Cal.App.4th 1327, 1334 (Hernandez) ["We are satisfied that, even without express instruction, the jurors understood that the existence of provocation can support the absence of premeditation and deliberation."].)
Sumpter does not state in his briefs the actual text of the instruction that his trial counsel allegedly should have requested. Thus, we address his argument to the extent possible without knowing the exact language of the pinpoint instruction that he wanted the jury to hear.
CALCRIM No. 522 states in relevant part: "Provocation may reduce a murder from first degree to second degree [and may reduce a murder to manslaughter]. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.]"
There are conceivable tactical reasons why counsel would not request an instruction advising the jury to consider the effect of provocation on premeditation and deliberation, including the desire for consistent defensive theories and to focus the jury on the primary theory that Sumpter was not the shooter. Further, if the jury became convinced that Sumpter was the shooter, counsel may have reasonably wished for the jury to find that he acted in the heat of passion (reducing attempted murder to attempted voluntary manslaughter) rather than without premeditation and deliberation (which would merely reduce the degree of attempted murder). (See Strickland, supra, 466 U.S. at p. 689 [in evaluating a claim of ineffective counsel, we must "indulge a strong presumption" that defense counsel's conduct constituted sound trial strategy].)
Additionally, Sumpter did not suffer prejudice from counsel's inaction because the factual question that would have been posed by a modified version of CALCRIM No. 522 was resolved by the jury under other properly given instructions, which conveyed the distinctions between attempted murder with premeditation and deliberation and attempted murder without these characteristics. The jury was instructed with CALCRIM No. 601, which fully explained the criteria for determining the truth of the allegation that the attempted murder was done willfully and with deliberation and premeditation. All three terms were explained. CALCRIM No. 601 informed the jury that "a decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated." CALCRIM No. 603 states that "provocation" occurs when a person of average disposition would have been made to "act rashly and without due deliberation." The jury was instructed that it must decide "whether the defendant was provoked and whether the provocation was sufficient." In determining the latter question, the jury was told to "consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than judgment." Read together, these instructions gave the jury guidance in considering evidence of provocation to determine whether the attempted murder was a premeditated and deliberate one. (See Hernandez, supra, 183 Cal.App.4th at p. 1334.) Nothing prevented the jury from giving the provocation evidence its due weight, and the jury nonetheless rejected Sumpter's provocation theory. (See Rogers, supra, 39 Cal.4th at p. 880; People v. Wharton (1991) 53 Cal.3d 522, 572.)
Based on the foregoing, Sumpter has failed to establish a claim of ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P.J. GUERRERO, J.