From Casetext: Smarter Legal Research

People v. Tassin

Court of Appeal of California
Sep 19, 2008
No. B197553 (Cal. Ct. App. Sep. 19, 2008)

Opinion

B197553

9-19-2008

THE PEOPLE, Plaintiff and Respondent, v. HAROLD JOSEPH TASSIN, Defendant and Appellant.

William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.

Not to be Published


INTRODUCTION

Defendant and appellant Harold Tassin (defendant) fired a handgun from the sidewalk at the victim who was standing on the porch of a relatives house, striking the victim in both feet. As he fled the scene, he pointed his gun at pursuing police who returned fire, wounding defendant in the knee.

Defendant was charged with attempted murder, exhibiting a firearm in the presence of police, and shooting at an inhabited dwelling. Defendant maintained that he acted in self-defense, claiming the victim fired at him first. The jury deadlocked on the attempted murder charge, which was thereafter dismissed, but convicted defendant on the charges of exhibiting a firearm and shooting at a dwelling.

On appeal, defendant raises multiple challenges to his conviction and his sentence. We hold that defendant forfeited certain of his contentions on appeal and reject the remainder of his contentions. We therefore affirm the judgment.

FACTUAL BACKGROUND

A. Prosecutions Case

On September 17, 2005, at around 2:00 p.m., Tony Hilt was about to enter his "father-in-laws" house from the front porch, about two feet from the front door. He heard a female "holler," "Oh, my God. Tony." Immediately after that, he heard at least four or five gunshots. Before he could enter the house, he sustained gunshot wounds to his left toe and right ankle or heel. He was unable to see who was shooting at him. He had to crawl into the house on "all fours."

As discussed below, because Hilt was unavailable for trial, his preliminary hearing testimony was read to the jury.

Hilt was taken to the hospital and treated for injuries to both feet. He was on crutches for about a month and a half. At the time of his testimony, he still had residual pain and walked with a limp.

Hilt could not identify who shot him. He had never seen defendant until the day he testified at the preliminary hearing. Hilt had been a member of the Mona Park Crips, but he was not a gang member at the time of the hearing.

On September 17, 2005, at approximately 2:00 p.m., Robert Spikes, Hilts father-in-law, was preparing for a fishing trip. He was standing at the side door of his white van that was parked in the driveway of his house located at 2406 124th Street in Compton. Spikes could see his house from where he was standing. The side doors to his van were open and he was leaning into his van "chipping up some ice in [his] cooler." He heard what he at first thought was a firecracker, turned around, and observed defendant "standing there shooting toward [Spikess] house." Defendant was on the sidewalk by the "walk-in gate" to Spikess house. He was wearing a white shirt, dark pants, and had a "phone set" on his head. Spikes heard five or six shots and saw a gun in defendants hand. Spikess daughter and three of his grandchildren were in the house.

As the shooting started, Hilt was "headed into the house." When Spikes first turned around, he saw Hilt step on the first step leading to the house. Spikes did not hear either Hilt or defendant say anything prior to the shooting. Defendant was about 21 feet from Hilt. Hilt crawled on "all fours" into the house. Spikess grandson opened the front door for Hilt.

After defendant finished shooting, he started to walk away toward Mona Boulevard and then began running. A police car came down 124th Street as defendant ran. Defendant "ducked in the backyard" of a house four doors away from Spikess house. When defendant saw the police, he started shooting again. Spikes saw defendant point his gun at the deputies and heard shots. Defendant ran down the driveway of the house four doors down and into the backyard.

After the shooting, Spikes noticed damage to a table on his front porch from a bullet. Spikes also saw that Hilt had been shot in the foot close to the ankle.

On September 17, 2005, Beatrice Copes-Robinson was visiting her boyfriend, Spikes, at his house at about 2:00 p.m. She was standing at the back of her Ford Explorer that was parked at the curb in front of Spikess house. As she stood at the back of the Explorer "straightening stuff in the back," she heard shooting to her right. She turned and saw defendant shooting. She was able to "get a very good look at the person who was shooting." Defendant wore jeans, a white shirt, and a headset. She heard two shots before she turned, and about four more after she turned. She saw a gun in defendants hand. Copes-Robinson saw Hilt walking toward the front of the house. She then saw Hilt fall to the porch. Someone opened the screen door and pulled him in the house. Copes-Robinson did not hear any words being exchanged between anyone before the shooting. Neither Hilt nor defendant said anything during the shooting.

After the shooting stopped, Copes-Robinson saw defendant run down the sidewalk on 124th Street toward Mona Boulevard. She saw the police turn from Mona onto 124th Street about three or four houses down from Spikess house. As the police came around the corner, defendant started shooting at the police. Defendant had a semi-automatic gun in his hand. She heard gun shots and saw that the deputies and defendant "had guns pointed at each other." Defendant ran back into someones yard. After the shooting, Copes-Robinson saw that Hilt had a gunshot wound to his heel.

On September 17, 2005, Los Angeles County Sherriffs Deputy Noe Garcia was driving southbound on Mona Boulevard with his partner, Deputy Francisco Maldonado, in a patrol vehicle. As they came to the stop sign at the intersection of Mona and 124th Street, Deputy Garcia heard eight to ten gunshots coming from west of their location on 124th Street. After Deputy Garcia confirmed that his partner had also heard the shots, his partner made a radio broadcast. Deputy Garcia then turned left on 124th Street and proceeded west in the direction of the shots.

As they proceeded west on 124th Street, Deputy Garcia saw defendant running eastbound on 124th Street in the deputies direction. He was on the south sidewalk, about 50 yards from the patrol vehicle, carrying a handgun. At first defendant did not see the patrol vehicle as he ran at a full sprint, looking backward. When defendant looked in the deputies direction, he had "a startled look [in] his eyes." He slowed his run and then ducked behind a trash can located in front of the residence at 2426 124th Street. The deputies stopped their patrol vehicle, exited, and took up positions behind the drivers and passengers side doors. As Deputy Garcia was taking his position behind the drivers side door, defendant "popped up" from behind the trash can, still with the gun in his hand.

Defendant moved away from the trash can, raised the handgun in the deputies direction, and started to run down the driveway of the residence at 2426 124th Street. Fearing that defendant was about to shoot at him, Deputy Garcia shot at defendant. Deputy Maldonado also shot at defendant. Deputy Garcia fired four to six rounds at defendant.

Defendant continued to run down the driveway toward the back of the house. There was a three-to four-foot chain link fence or gate across the driveway where the house meets the driveway. Defendant scaled that fence and fell to the ground, dropping the handgun and a "C.D. player." Defendant picked up the gun, got to his feet, and continued to run down the driveway. As he ran, defendant looked back over his left shoulder, and again pointed his gun at the deputies. Deputy Garcia fired another four to six rounds at defendant who brought the gun down in front of him and continued to run towards the back of the house. When defendant turned westbound, Deputy Garcia lost sight of him.

The deputies immediately set up a containment position and radioed for any responding unit to proceed to a location four or five houses from their location. Deputies Garcia and Maldonado were then relieved by other deputies and they reported to the command post. About 45 minutes to an hour after they lost sight of defendant, the deputies were advised that a suspect had been detained. The deputies went to a location behind the residence at 2426 124th Street near a shed, and identified defendant who was being treated by paramedics for a gunshot wound to his leg.

Los Angeles County Sheriffs Detective Kathleen Gallagher arrived at the scene of the shooting at about 4:00 or 4:30 p.m. on September 17, 2005. She, her partner, and others first walked the crime scene at 2406 124th Street—Spikess house. Just outside the fence line at that location, she observed bullet fragments. One fragment was in the street and three were inside the fence of Spikess house. She also observed seven shell casings that were consistent with shell casings that would be discharged from a 45-caliber semi-automatic handgun. A 45-caliber semi-automatic handgun has a magazine capacity of seven rounds, but it is possible to have an additional round in the chamber for a total capacity of eight rounds. There were no casings from any other type of gun recovered from the 2406 124th Street location.

Detective Gallagher and her partners also walked the crime scene at 2426 124th Street. She observed bullet casings in front of and in the area of that location. They were all located roughly around the location of Deputy Garcias and Deputy Maldonados patrol vehicle and they were consistent with shell casings that would be discharged from the deputies nine-millimeter handguns. Deputy Gallagher also observed a 45-caliber semi-automatic handgun in the yard next door to the 2426 124th Street location.

Detective Gallagher visited Hilt in the hospital and observed that he had what appeared to be a gunshot wound through his right heel. He also had another injury across his left toes. Defendant was tested for gunshot residue. No other person, including Hilt, was tested for gunshot residue.

B. Defense Case

Cornelius Bryant, who had known defendant his entire life, spoke with defendant on Friday, September 16, 2005, and made arrangements to meet him the next day at Bryants grandmothers house in Compton. The next day, September 17, defendant met Bryant as arranged, and Bryant and his wife drove defendant to the Avalon swap meet so defendant could buy some clothes. Defendant told Bryant that defendant was going to take his girlfriend, Sharonda, and daughter to the park and then to the fair.

After the swap meet, Bryant and his wife drove defendant to defendants grandmothers house so he could drop off the clothes he had purchased. Bryants wife then dropped the two men off at Bryants aunts house for a visit.

While at Bryants aunts house, Bryant received a call from Sharonda who asked to speak with defendant. When defendant finished speaking with Sharonda, he told Bryant that he was leaving to meet her at the park. Bryant did not see defendant again that day.

In September 2005, Sharonda Smith was in a "common law" relationship with defendant, and she had a daughter with him who was three years old at the time of trial. Sharonda and her daughter, Sahara, were living with defendant in Bellflower. On the morning of September 17, 2005, defendant took Sahara to breakfast at McDonalds, which was their daily routine. Defendant then dropped Sahara off at home and drove his mothers car to her residence in Compton so that his mother could drive to her hair appointment.

Sharonda and defendant had made plans that day to take Sahara to Mona Park in Compton and, later, to the Pomona Fair. Sharonda, Sahara, and defendant had been to Mona Park together on previous occasions. Sharonda and Sahara left home, stopped at the market to buy food for lunch, and proceeded to Mona Park so Sahara could play. When Sharonda arrived at the park, she "got the things out of the car" and "[got] set up in the park." She then called Bryant and asked to speak with defendant. She told defendant that she and Sahara were at the park and were ready for him. Defendant told Sharonda he was on his way. But defendant never arrived at the park. The next time Sharonda saw him was two weeks later at the hospital at the county jail.

Sharonda removed a small barbecue pit and a lunch basket from her car.

On Friday, September 16, 2005, defendant spoke with his friend, Bryant, by telephone and arranged to meet the next day. The next morning defendant took his daughter, Sahara, to McDonalds for breakfast. After breakfast, defendant took Sahara back home and then proceeded to his mothers house in Compton, which was close to the homes of Bryants grandmother and aunt. Defendant went to his mothers house to return her car because she needed it to drive to her hair appointment. After spending approximately two hours at his mothers house, defendant met Bryant at Bryants grandmothers house. He asked Bryant and Bryants wife, Fhillana, to take him to the Avalon swap meet where defendant purchased some clothes to wear to the fair later that day. Bryant and his wife then drove defendant to defendants mothers house so he could drop off the clothes he had purchased. While at his mothers house, defendant went to the garage and retrieved a loaded gun "because [it was] not safe over there where [Bryants aunt] live[d]." He put the gun in his waistband, returned to the car, and drove with Bryant and his wife to Bryants aunts house. They spent about an hour there talking with Bryants aunt.

Bryant referred to Fhillana as his wife, but defendant referred to her as Bryants girlfriend.

Bryant then received a call for defendant from Sharonda who told defendant she was at the park and asked him to meet her there as they had planned. Defendant had been to the park with his family before and never had any trouble with anyone there.

Defendant left Bryants aunts house, and proceeded down Wilmington Avenue to 124th Street. He was wearing a "walkman C.D. player," with the earphones on his head, but not covering his ears. He headed east on 124th Street down the sidewalk. At mid-block, Hilt, who was standing on a porch, said "Hey, whats up cuz." Defendant, who had been "affiliated" with the West Side Pirus gang but was never a member, took Hilts statement as a challenge, "Like [Hilt] was banging on [him]." Defendant kept walking and Hilt said, "Hey mother f____, where are you from?" Defendant turned and said, "I aint from nowhere." Hilt replied, "What the f____ you doing around here?" Defendant responded, "I dont mean no disrespect. But I dont owe you no explanation as to why Im over here." Hilt then said, "Ah, cuz, you got me f____ up," and pulled out a gun and started shooting at defendant.

Defendant, who was standing on the sidewalk outside the fence of the house from which Hilt was shooting, pulled out his gun and shot back at Hilt. Defendant did not know how many rounds he fired, but at some point he stopped firing because he was out of ammunition. He never fired any rounds after that.

Defendant admitted that the 45-caliber semi-automatic handgun found at the scene was his gun.

Once defendants gun was empty, he ran east on 124th Street. He saw the police coming and kept running. He ran down a driveway towards a backyard and was struck by an officers bullet before he reached the backyard. He was shot in the knee cap, and eventually arrested.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an information charging defendant in Count 1 with attempted willful, deliberate, premeditated murder, in violation of Penal Code sections 664 and 187, subdivision (a) —a felony; in Counts 2 and 3 with assault on a peace officer with a semi-automatic fire arm, in violation of section 245, subdivision (d)(2)—a felony; and in Counts 4 and 5 with exhibiting a firearm in the presence of an officer, in violation of section 417, subdivision (c)—a felony.

All further statutory references are to the Penal Code.

As to Count 1, the District Attorney further alleged that the attempted murder was committed willfully, deliberately, and with premeditation within the meaning of section 664, subdivision (a); that defendant personally and intentionally discharged a firearm proximately causing great bodily injury or death within the meaning of section 12022.53, subdivision (d); that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); and that defendant personally used a firearm within the meaning of sections 12022.53, subdivision (b). As to all counts, the District Attorney further alleged that each offense was committed for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A).

Defendant pleaded guilty and denied the special allegations. On November 14, 2006, the District Attorney filed an amended information that added Count 6 alleging that defendant shot at an inhabited dwelling, in violation of section 246—a felony. On November 21, 2006—the day of trial—defendant pleaded not guilty to the amended information and denied all of the special allegations. On the prosecutions motion, the trial court dismissed Counts 2 and 3—assault on an officer with a semi-automatic weapon—pursuant to section 1385.

The matter proceeded to a jury trial and, on the tenth day of trial, the jury returned its verdict. As to Count 1—attempted murder—the jury indicated it was split 11 to 1 in favor of a guilty verdict and therefore unable to reach a verdict. The trial court declared a mistrial as to Count 1, which was thereafter dismissed. As to Counts 4 and 5 —exhibiting a firearm in the presence of an officer—the jury found defendant guilty, but found that the gang enhancement allegations under section 186.22, subdivision (b)(1) as to each count were not true. As to Count 6—shooting at an inhabited dwelling—the jury found defendant guilty and also found true the allegation that defendant personally and intentionally discharged a firearm causing great bodily injury to Hilt, within the meaning of section 12022.53, subdivision (d). The jury, however, found that the gang enhancement allegation under section 186.22, subdivision (b)(1) was not true.

For purposes of the jury only, the parties stipulated that Counts 4 and 5 would be referred to as Counts 2 and 3, and that Count 6 would be referred to as Count 4.

At the sentencing hearing, the trial court sentenced defendant on Count 6 to the middle term of five years, plus an additional and consecutive sentence of 25 years to life pursuant to section 12022.53, subdivision (d), for a total sentence on Count 6 of 30 years to life. On Counts 4 and 5, the trial court sentenced defendant to the middle term of two years as to each count, with each sentence to run concurrently with the sentence imposed on Count 6.

DISCUSSION

A. Amended Information

Defendant contends that the trial court committed prejudicial error when it allowed the amended information, that added Count 6, to be filed on the day of trial. According to defendant, the amendment was an "unfair surprise" and added a charge—shooting at an inhabited dwelling—that was not shown by the evidence at the preliminary hearing. Defendant argues that due to the timing of the amendment, his trial counsel could not adjust his trial strategy to address adequately the new charge.

1. Forfeiture

Although the trial court allowed the amendment to the information on the day trial commenced, defendants trial counsel did not object to the amendment or request a continuance of the trial. Generally, when a defendant fails to object to a discretionary ruling of a trial court at the time it is made, he or she forfeits any challenge to that ruling on appeal. "`An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial." (Doers v.Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [151 Cal.Rptr. 837, 588 P.2d 1261], Italics in Doers.) "`"The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . ." (People v. Walker (1991) 54 Cal.3d 1013, 1023 [1 Cal.Rptr.2d 902, 819 P.2d 861].)" (People v. Saunders (1993) 5 Cal.4th 580, 590.)

Trial counsel chose not to object to the amendment and to proceed with trial as scheduled. Defendant has therefore forfeited his challenge on appeal to the trial courts ruling allowing the amendment on the day of trial.

2. Ineffective Assistance of Counsel

Defendant contends that if we determine that he forfeited his challenge to the trial courts ruling allowing the amendment, his trial counsel rendered ineffective assistance at trial. According to defendant, his counsel failed to perform with reasonable competence by failing to object or request a continuance.

To establish ineffective assistance of counsel, a defendant must show that (i) counsels performance was so deficient that it fell below an objective standard of reasonableness; and (ii) the deficient performance was prejudicial, rendering the results of the trial unreliable or fundamentally unfair. (Strickland v. Washington (1984) 466 U.S. 668, 688, 692.) To satisfy the prejudice requirement, a defendant "must show that there is a reasonable probability that, but for counsels unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)

In reviewing claims of ineffective assistance of counsel, we will not second guess trial counsels strategic or tactical decisions. (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) Moreover, if the record on appeal does not disclose the reasons for defense counsels decisions, we are required to uphold the conviction "unless the record . . . precludes the possibility of a satisfactory explanation" for trial counsels action. (People v. Ledesma (2006) 39 Cal.4th 641, 746 (Ledesma).) "Such claims are more appropriately addressed in a habeas corpus proceeding." (Ibid.)

The record before us does not reveal the reasons for trial counsels decision not to object to the amended information or request a continuance. We cannot conclude on this record that there is no satisfactory explanation for counsels action. Perhaps counsel chose not to object because he believed the evidence at the preliminary hearing clearly supported the new charge of shooting at an inhabited dwelling. Spikess testimony at that hearing, to the effect that he saw defendant on the sidewalk in front of Spikess house shooting towards the front porch of the house, supported the amendment. Moreover, at trial defendant admitted that he shot at Hilt while Hilt was standing on Spikess porch, albeit in self-defense. At the time of the amendment, defendants trial counsel was undoubtedly aware that defendant would make that admission and may therefore have concluded that an objection would have been futile. Similarly, there may have been a reasonable explanation for not requesting a continuance such as, for example, trial counsels awareness that the attempted murder charge and the new charge of shooting at an inhabited dwelling arose from the same alleged conduct of defendant—shooting at Hilt on the porch. Based on that awareness, trial counsel may have concluded that defendants claim of self-defense to the attempted murder charge would also operate to negate the new charge of shooting at an inhabited dwelling, making a continuance unnecessary. Moreover, defense counsel may have welcomed a lesser charge to attempted murder. Because we cannot determine from the record the reasons behind trial counsels decision in this regard, defendants claims of ineffective assistance of counsel would be more appropriately raised, if at all, by a petition for habeas corpus.

B. Hilts Preliminary Hearing Testimony

Defendant challenges the trial courts ruling allowing Hilts preliminary hearing testimony to be read to the jury. He argues that the prosecution did not make reasonable efforts to procure Hilts presence at trial. Among other things, defendant focuses on the investigating officers failure to attempt to contact Hilt concerning testifying at trial until two weeks before trial, their failure to seek the assistance of the United States Marshall in locating Hilt, and their failure to seek a subpoena to search Spikess house for evidence relevant to Hilts whereabouts.

Prior to the commencement of trial, Los Angeles County Sheriffs Sergeant Randy Seymour testified as follows about the attempts he and his partner, Detective Gallagher, made to locate Hilt and serve him with a subpoena to appear at trial. Sergeant Seymour and Detective Gallagher began trying to contact Hilt about two weeks before trial, i.e., in early November 2006. Initially they went to Spikess house because they knew that location as the address where Hilt was shot and that he had relatives who lived or frequently visited there. They spoke to Spikess 18-year-old grandson who informed them that Hilt had not lived there for some time.

They next went to an address in Hacienda Heights based on information that Hilts wife, Timlynn, lived there. They spoke to Timlynn, and she informed them that she had last seen Hilt in Cincinnati in July. She and Hilt had gone there on a trip together and, while there, Hilt told Timlynn that there was a federal warrant out for his arrest. When Timlynn returned to California in July, Hilt stayed in Cincinnati and she had not heard from him since.

Sergeant Seymour and Deputy Gallagher then checked the federal warrant system and located an outstanding federal warrant for Hilts arrest. They checked the warrant system every few days thereafter, most recently on the morning Sergeant Seymour testified. As of that morning, the federal warrant system showed that Hilt was not in custody anywhere.

Sergeant Seymour also checked the local Los Angeles County jail facilities to confirm that Hilt was not in custody locally. In addition, Detective Gallagher made follow-up contact with Timlynn, who had no additional information, and the detective made at least three additional but unsuccessful attempts to serve Hilt at Spikess house. Sergeant Seymour also staked out Spikess residence on one occasion for two hours.

Neither Sergeant Seymour nor Detective Gallagher made any attempt to obtain a search warrant for Spikess house to search for information relevant to Hilts whereabouts. Nor did they travel to Cincinnati to attempt to locate Hilt. And Sergeant Seymour made no attempt to contact the United States Marshall to assist him in locating Hilt. Based on Sergeant Seymours testimony, the trial court—over defendants objection—found that the prosecution had exercised due diligence in attempting to locate Hilt and allowed Hilts preliminary hearing testimony to be read to the jury. As discussed below, we agree with the trial court.

"`The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecutions witnesses. [Citations.] That right is not absolute, however. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination. Under federal constitutional law, such testimony is admissible if the prosecution shows it made "a good-faith effort" to obtain the presence of the witness at trial. [Citations.] California allows introduction of the witnesss prior recorded testimony if the prosecution has used "reasonable diligence" (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness. [Citation.] ([People v.] Cromer [(2001)] 24 Cal.4th [889,] 892 [(Cromer)].)" (People v. Martinez (2007) 154 Cal.App.4th 314, 324 (Martinez).)

Evidence Code section 240 requires a proponent of evidence to demonstrate the unavailability of the witness with a showing that the proponent "has exercised reasonable diligence but has been unable to procure his or her attendance by the courts process." (Evid. Code, § 240, subd. (a)(5).)

"In Cromer, supra, 24 Cal.4th 889, the prosecutions primary witness testified at the preliminary hearing, and appeared cooperative. (Id. at p. 903.) Two weeks later, however, patrolling officers reported that the witness had disappeared from the neighborhood where she lived. Despite that information, the prosecution made no attempt to contact the witness for almost six months. It was not until shortly before trial that the prosecutors investigators finally visited the witnesss former residence, only to be told that she no longer lived there. When an investigator received information two days before trial that the witness was living with her mother in San Bernardino, no action was taken for two days. (Ibid.) The investigator ultimately located the mothers address, traveled there, spoke to an unidentified woman, and left a subpoena for the witness. (Id. at p. 904.) No other efforts were made to locate the witness. (Ibid.)" (Martinez, supra, 154 Cal.App.4th at pp. 327-328.)

"After hearing the prosecutions evidence on due diligence, the trial court in Cromer, supra, 24 Cal.4th 889 allowed the witnesss preliminary hearing testimony to be read to the jury. (Id. at p. 893.) In holding that the conviction must be reversed, the Supreme Court in Cromer observed that `the term "due diligence" is "incapable of a mechanical definition," but it "connotes persevering application, untiring efforts in good earnest, efforts of a substantial character." [Citations.] Relevant considerations include "`whether the search was timely begun" [citation], the importance of the witnesss testimony [citation], and whether leads were competently explored [citation]. (Id. at p. 904.)" (Martinez, supra, 154 Cal.App.4th at p. 328.) "What constitutes due diligence depends on the facts of each case." (People v. Sanders (1995) 11 Cal.4th 475, 523.)

When the facts concerning the prosecutions efforts to locate an absent witness are in dispute, "a reviewing court must, of course, apply a deferential standard of review to the trial courts factual findings." (Cromer, supra, 24 Cal.4th at p. 900.) But when, as here, the facts concerning the prosecutions efforts to locate an absent witness are not in dispute, we "independently review [the] trial courts determination that the prosecutions failed efforts to locate [the] absent witness are sufficient to justify an exception to the defendants constitutionally guaranteed right of confrontation at trial." (Id. at p. 901.)

In this case, unlike Cromer, supra, 24 Cal.4th 889, the undisputed facts support the trial courts conclusion that the prosecution exercised due diligence in attempting to procure Hilts presence at trial. Contrary to defendants assertion, the timing of the search in this case appears to have been reasonable. Hilt appeared at the preliminary hearing in March 2006, testified, and seemed cooperative. There is no evidence that the investigating officers were aware of any facts that would have caused them to believe that Hilt was about to leave the jurisdiction. Absent such information, they were under no affirmative duty to monitor Hilts whereabouts during the months between the preliminary hearing and trial. (People v. Wilson (2005) 36 Cal.4th 309, 342 [Ordinarily, "[t]he prosecution is not required `to keep "periodic tabs" on every material witnesses in a criminal case . . . . Also, the prosecution is not required, absent knowledge of a `substantial risk that this important witness would flee, to `take adequate preventative measures to stop the witness from disappearing"].)

Defendant argues that Sergeant Seymour and Detective Gallagher knew Hilt was a gang member and, therefore, should have known that he would attempt to avoid testifying at trial. Hilt, however, testified that he was a former gang member, and there is nothing in the record to support defendants assertion that it is "common knowledge" that gang members who testify at preliminary hearings are reluctant to appear at trial.

As to the importance of Hilts testimony, the record reflects that the primary eyewitnesses to the events of September 17, 2005, were Spikes, Copes-Robinson, Deputy Garcia, and Deputy Maldonado. Unlike Spikes and Copes-Robinson, Hilt did not see who shot him and his testimony about his injuries, although more detailed, was largely cumulative of the testimony of Spikes, Copes-Robinson, and Detective Gallagher who visited Hilt in the hospital and examined his wounds. Thus, although Hilts testimony corroborated some of the eyewitness testimony about the shooting and gave more detail about the after-effects of his injuries, it was not essential to the prosecutions case.

Based on the testimony of the other eyewitnesses, there is no reasonable probability that the jury would have reached a different result if Hilts testimony had not been read.

Finally, it appears that Sergeant Seymour and Detective Gallagher competently explored the available leads. They went to the home addresses they had available and interviewed witnesses. They followed up on Timlynns advice concerning the federal warrant, confirming that there was such a warrant and periodically checking to determine if Hilt had been taken into custody. Also, Detective Gallagher made three additional attempts to serve Hilt at Spikess house and Sergeant Seymour staked out that residence on at least one occasion.

That Sergeant Seymour and Detective Gallagher did not obtain a search warrant for Spikess house is explained by the Sergeants testimony that he did not believe he had probable cause to seek a warrant. Similarly, that Sergeant Seymour did not contact the United States Marshall or travel to Cincinnati are explained by his testimony that he had no current information about Hilts whereabouts to provide to the Marshall and the information about Hilt being in Cincinnati was several months old and did not include an address or other locating information, beyond Timlynns advice that Hilt was in Cincinnati in July.

Based on the record, we conclude that the prosecution exercised due diligence in attempting to procure Hilts attendance at trial. Its ruling allowing Hilts preliminary hearing testimony to be read at trial is therefore affirmed.

C. Jury Instruction on Self-Defense

Defendant contends that the trial court had a sua sponte duty to instruct the jury that the self-defense instructions applied to Count 6—shooting at an inhabited dwelling—as well as Count 1—attempted murder. Such a clarifying instruction was necessary, argues defendant, because it was not clear from the order in which the instructions were given that the self-defense instruction had any application to the conduct charged in Count 6. Defendant further argues that the self-defense instructions should also have been linked to the firearm discharge/great bodily injury allegation under section 12022.53, subdivision (d).

The trial court gave six CALJIC instructions relating to self-defense: Nos. 5.30 (self-defense against assault); 5.50 (self-defense—assailed person need not retreat); 5.51 (self-defense—actual danger not necessary); 5.52 (self-defense—where danger ceases); 5.53 (self-defense not an excuse after adversary disabled); and 5.55 (self-defense may not be contrived). Defense counsel did not object to any of these instructions or argue that they should be specifically linked to either the conduct charged in Count 6 or the firearm discharge/great bodily injury allegation.

1. Forfeiture

If a jury instruction is a correct statement of the law, and the defendant fails to request a clarifying instruction, the defendant forfeits any challenge to the instruction on appeal. "The long-standing general rule is that the failure to request clarification of an instruction that is otherwise a correct statement of the law forfeits an appellate claim of error based upon the instruction given. [Citations.]" (People v. Rundle (2008) 43 Cal.4th 76, 151.) Here, the trial court correctly instructed the jury concerning the elements of a violation of section 246. The trial court also correctly instructed the jury as to the law relating to self-defense. Thus, assuming there was a further need to clarify that the self-defense instructions applied to the conduct charged in Count 6 and the firearm discharge/great bodily injury allegation, it was defendants burden to request such a clarifying instruction. Therefore, defendants failure to request a clarifying instruction in the trial court forfeits the issue on appeal.

2. Ineffective Assistance

As discussed above, if the record does not disclose the reasons trial counsel acted or failed to act in the manner challenged on appeal, we must assume counsel had a reasonable basis for acting or failing to act, unless "there simply could be no satisfactory explanation." (Ledesma, supra, 39 Cal.4th at p. 746.) The trial court properly instructed the jury on the elements of a violation of section 246 and on the law relating to self-defense. The record does not reflect the reason for trial counsels failure to request an instruction specifically linking the self-defense instructions to the conduct charged in Count 6 and alleged in the firearm discharge/great bodily injury allegation. Nor does the record preclude the possibility of a satisfactory explanation such as, for example, that trial counsel believed that it was clear from the evidence and instructions that self-defense applied to the attempted murder charge, as well as the shooting at an inhabited dwelling charge and firearm discharge/great bodily injury allegation. These charges and the special allegation were based on the same conduct by defendant—shooting at Hilt on Spikess porch. We therefore reject on appeal defendants claim of ineffective assistance of counsel as to the self-defense instructions.

D. Section 246.3 As Lesser Included Offense

Defendant maintains that the trial court committed prejudicial error when it refused defendants request for an instruction on the elements of a violation of section 246.3—grossly negligent discharge of a firearm. Defendant asserts that the trial court ruled that section 246.3 is not a lesser included offense to section 246—shooting at an inhabited dwelling—and that such ruling was legally erroneous. As discussed below, although the trial court incorrectly concluded that section 246.3 was not a lesser included offense to section 246, it did not err in refusing to instruct on section 246.3.

"In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. [Citation.] This obligation includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) "A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, `"that is, evidence that a reasonable jury could find persuasive" [citation], which, if accepted, `"would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser [citation]. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1218.)

The discharge of a firearm in a grossly negligent manner in violation of section 246.3 is a lesser included offense to shooting at an inhabited dwelling in violation of section 246. (People v. Overman (2005) 126 Cal.App.4th 1344, 1360.) Sections 246 and 246.3 are general intent crimes. (Id. at p. 1361.) "[S]ection 246 is violated when a defendant intentionally discharges a firearm either directly at a proscribed target (e.g., an inhabited dwelling house or occupied building) or in close proximity to the target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it. No specific intent to strike the target, kill or injure persons, or achieve any other result beyond shooting at or in the general vicinity or range of the target is required." (Ibid.)

As noted by the Attorney General, the issue of whether section 246.3 is a lesser included offense to section 246 is currently pending before the Supreme Court in People v. Rameriz (December 12, 2007, S156775) and People v. Garcia (January 3, 2008, S157870).

"Unlike section 246, section 246.3 does not require that an inhabited dwelling, occupied building, or any other specific target be in the defendants firing range. But like section 246, section 246.3 involves discharge of a firearm under circumstances presenting a significant risk that personal injury or death will result. Section 246 proscribes discharging a firearm at specific targets, the act of which presumably presents a significant risk that personal injury or death will result. Section 246.3 proscribes discharging a firearm in any grossly negligent manner which presents a significant risk that personal injury or death will result." (People v. Overman, supra, 126 Cal.App.4th at p. 1362.)

"The only difference between sections 246 and 246.3 is that section 246 requires that a specific target (e.g., an inhabited dwelling or an occupied building) be in the defendants firing range. Section 246[.3] [sic] does not include this requirement. Both crimes, however, involve the intentional discharge of a firearm in a grossly negligent manner which presents a significant risk that personal injury or death will result." (People v. Overman, supra, 126 Cal.App.4th at p. 1362.)

In this case, the evidence showed that defendant fired at Hilt while Hilt was standing 21 feet away on Spikess front porch. That evidence supported a conviction for a violation of section 246, as that statute has been interpreted by the case law. It showed that defendant willfully discharged his firearm in close proximity to a proscribed target, i.e., Spikess occupied dwelling, thereby satisfying all the elements of section 246. Moreover, there is no evidence that defendant was shooting wildly or firing in any direction other than at the front porch of Spikess house. Rather, defendant himself admitted that Hilt was his target after Hilt first shot at him and that he intended to fire the weapon. There is no evidence that he fired the weapon negligently. Therefore, there is no substantial evidence that defendant violated section 246.3 but not section 246. Accordingly, the trial court did not err in refusing to instruct the jury on discharging a firearm in a grossly negligent manner.

E. Cumulative Error

Defendant contends that the cumulative effect of the errors asserted above requires reversal, even if no one of the asserted errors caused sufficient prejudice by itself to require reversal. As discussed, however, we have concluded either that defendant has forfeited certain of the claimed errors discussed above or that the trial court did not err as to the others. As a result, there were no errors to cumulate. (See People v. Phillips (2000) 22 Cal.4th 226, 244.)

F. Substantial Evidence

Defendant contends that there was insufficient evidence to support the jurys finding that defendant shot at an inhabited dwelling in violation of section 246 or its finding that he intentionally discharged a firearm causing great bodily injury to Hilt within the meaning of section 12022.53, subdivision (d). As to the violation of section 246, defendant contends that case law has morphed the term "discharge a firearm at an inhabited dwelling" in section 246 into the term "discharge a firearm near an inhabited dwelling." According to defendant, the latter interpretation of section 246 is contrary to the plain language of the statute and the intent of the legislature. As to the finding that defendant discharged a firearm causing great bodily injury to Hilt, defendant argues that the evidence of great bodily injury is "vague." As defendant views the evidence, it is not clear whether defendant suffered significant or substantial wounds, as opposed to wounds that were minor, trivial or moderate. In particular, defendant focuses on the prosecutions failure to offer defendants medical records or the testimony of his treating physicians. That failure and the alleged vagueness of the percipient witnesses testimony lead defendant to conclude that Hilt may have suffered only "flesh wounds."

1. Section 246

As discussed above, to establish a violation of section 246 the prosecution was required to show that defendant "intentionally discharge[d] a firearm either directly at a proscribed target (e.g. an inhabited dwelling house or occupied building) or in close proximity to the target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons around it. No specific intent to strike the target, kill or injure persons, or achieve any other result beyond shooting at or in the general vicinity or range of the target is required." (People v. Overman, supra, 126 Cal.App.4th at p. 1361.)

Contrary to defendants suggestion, the prosecution was not required to show that defendant was shooting at Spikess house with the intent of striking it or its occupants. All that was required was a showing that defendant fired in close proximity to Spikess house in conscious disregard of the probability that Spikess house, daughter, or grandchildren might be hit by a bullet. The evidence at trial satisfied that requirement. Defendant, standing 21 feet from Hilt, admittedly opened fire at Hilt who was on Spikess porch, two feet from the front door. He emptied his handgun of ammunition. Bullet fragments were found in Spikess front yard, a table on Spikess porch was damaged by a bullet, and seven shell casings were found on the sidewalk in front of Spikess house. That evidence supported a reasonable inference that defendant fired his handgun in close proximity to Spikess house, with little or no regard for the risk that he might hit either the house or the occupants. There is substantial evidence to support that reasonable inference, and therefore the finding of a violation of section 246.

2. Section 12022.53, Subdivision (d)

The section 12022.53, subdivision (d) allegation required the jury to find that Hilt sustained "great bodily injury." Section 12022.7, subdivision (f) provides, "As used in this section, `great bodily injury means a significant or substantial injury." The statute requires significant or substantial bodily injury, as distinguished from "trivial or insignificant injury or moderate harm." (People v. Cross (August 28, 2008, S139791) ___ Cal.4th __ [2008 Cal. LEXIS 10431,*8], quoting People v. Miller (1977) 18 Cal.3d 873, 883.)

"It is well settled that the determination of great bodily injury is essentially a question of fact, not of law. `"Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jurys finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding." (People v. Wolcott (1983) 34 Cal.3d 92, 107 [192 Cal.Rptr. 748, 665 P.2d 520], quoting People v. Salas (1976) 77 Cal.App.3d 600, 606 .)" (People v. Escobar (1992) 3 Cal.4th 740, 750.)

In People v. Escobar, supra, 3 Cal.4th 740, the Supreme Court found "great bodily injury" based on injuries sustained by a rape victim, comprised of "extensive bruises and abrasions over the victims legs, knees and elbows, injury to her neck and soreness in her vaginal area of such severity that it significantly impaired her ability to walk." (Id. at p. 750.) The court emphasized that section 12022.7 did not require permanent, prolonged or protracted disfigurement, impairment, or loss of bodily function. (Id. at p. 750.)

Hilt testified he was shot in the left foot causing injury to his toe on that foot and that he was shot through the right heel. The injuries were severe enough to require treatment at the hospital and the use of crutches for six weeks. At the time of the preliminary hearing in March 2006, he still suffered pain in his feet and walked with a limp. Spikes and Copes-Robinson saw a gunshot wound to defendants heel and Detective Gallagher saw injuries to the toes of his left foot and the heel of his right foot. Read together, that testimony was sufficient to support a reasonable inference that Hilts injuries were significant or substantial.

That no medical records or physician testimony were offered does not alter our conclusion. The referenced testimony was sufficient to support a reasonable inference that Hilts injuries were not minor, trivial, or moderate. Similarly, that Hilt was not permanently disabled or disfigured is irrelevant to the analysis. The evidence here, like the evidence in People v. Escobar, supra, 3 Cal.4th 750, showed serious but not life endangering injuries. Even if reasonable minds could differ over the severity of Hilts injuries, we cannot overturn the jurys finding of great bodily injury because it is supported by substantial evidence.

G. Cruel and/or Unusual Punishment

Defendant contends that his 30 years to life sentence, comprised of a middle term sentence of five years, plus 25 years to life pursuant to section 12022.53, subdivision (d), on Count 6, constitutes cruel and/or unusual punishment under the Eighth Amendment to the United States Constitution and Article I, section 17 of the California Constitution. Although he acknowledges that there are decisions contrary to his position, he argues that they were wrongly decided and should not be followed because the punishment for use of a firearm to inflict injury under section 12022.53, subdivision (d) is far more severe than the punishment for use of other deadly weapons to inflict injury, making that section unconstitutional on its face. In the alternative, he argues that even if section 12022.53, subdivision (d) is constitutional on its face, it is unconstitutional as applied to the facts of this case.

As the Attorney General points out, and defendant concedes, section 12022.53, subdivision (d) has consistently been held constitutional on its face in the context of cruel and/or unusual punishment challenges. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212-1215; People v. Gonzales (2001) 87 Cal.App.4th 1, 16; People v. Martinez (1999) 76 Cal.App.4th 489, 493-496.) As the court explained in People v. Martinez, supra, 76 Cal.App.4th 489, "the Legislature determined in enacting section 12022.53 that the use of firearms in commission of the designated felonies is such a danger that, `substantially longer prison sentences must be imposed . . . in order to protect our citizens and to deter violent crime. The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives. [Citations.]" (People v. Martinez, supra, 76 Cal.App.4th at pp. 497-498.) "We agree that the legislative determination regarding firearm use is reasonable. A firearm gives a perpetrator a strong advantage over the victim and effectively deters the victims escape. A firearm is particularly lethal to the victim of the underlying crime as well as others in the vicinity; and a firearm allows the perpetrator to effortlessly and instantaneously execute an intent to kill once it is formed. (See People v. Aguilar (1973) 32 Cal.App.3d 478, 486 .) A criminals decision to discharge a gun to kill another person is certainly an appropriate factor in determining the length of punishment." (People v. Zepeda, supra, 87 Cal.App.4th at p. 1215.)

The foregoing cases hold that section 12022.53 is constitutional on its face as against cruel and/or unusual punishment challenges. Those cases establish that the use of a firearm in the commission of one of the enumerated felonies justifies the more severe punishment provided under that statute.

As to defendants claim that section 12022.53, subdivision (d) resulted in cruel and/or unusual punishment as applied to the facts of this case, we disagree. In finding defendant guilty on Count 6, the jury implicitly rejected defendants self-defense claim and found that he maliciously and willfully shot his handgun at Spikess occupied residence. In doing so, defendant emptied his 45-caliber handgun while firing from a distance of 21 feet at the porch of Spikess home, hitting not only Hilt — who was just two feet from the front door — but also a table on the porch. As the jury found, he acted in conscious disregard for the safety of the occupants and could easily have caused injury or death to Spikess adult daughter or one or more of his grandchildren. That is the type of conduct that the legislature sought to deter and punish when it enacted section 12022.53, subdivision (d). Consequently, that section, as applied in this case, is not unconstitutional under either the federal or California constitutions.

H. Equal Protection

Defendant also challenges his 30 years to life sentence on Count 6 on the grounds that it violates equal protection under the federal and California Constitutions. This argument is flawed for two reasons. First, defendant never raised an equal protection challenge to his sentence in the trial court, and he has therefore forfeited that challenge on appeal. Second, section 12022.53 has repeatedly passed the constitutional test in the face of equal protection challenges. (See, eg., People v. Taylor (2001) 93 Cal.App.4th 318, 322-23; People v. Alvarez (2001) 88 Cal.App.4th 1110, 1114-1119; People v. Perez (2001) 86 Cal.App.4th 675, 678-680.)

As to defendants claim of ineffective assistance of counsel on this issue, the record again does not reveal the reason his trial counsel did not raise an equal protection challenge to defendants sentence. But, given the well-established authority cited above, his counsel may have understandably determined that any such challenge would have been unsuccessful. On this record, we must presume counsel acted competently with regard to the equal protection issue. Again, defendants challenge on this ground should be made, if at all, in a habeas corpus petition.

DISPOSITION

The judgment of the trial court is affirmed.

We concur:

TURNER, P. J.

ARMSTRONG, J.


Summaries of

People v. Tassin

Court of Appeal of California
Sep 19, 2008
No. B197553 (Cal. Ct. App. Sep. 19, 2008)
Case details for

People v. Tassin

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. HAROLD JOSEPH TASSIN, Defendant…

Court:Court of Appeal of California

Date published: Sep 19, 2008

Citations

No. B197553 (Cal. Ct. App. Sep. 19, 2008)

Citing Cases

People v. Tassin

We previously affirmed the judgment. (People v. Tassin (Sep. 19, 2008, B197553) [nonpub. opn.].) We have a…