Opinion
A119000 A121690
3-10-2009
THE PEOPLE, Plaintiff and Respondent, v. TERRANCE RUSSELL TERWILLIGAR, Defendant and Appellant. In re TERRANCE RUSSELL TERWILLIGAR on Habeas Corpus.
Not to be Published in Official Reports
Defendant Terrance Russell Terwilligar (appellant) appeals his conviction by jury trial of assault of Matthew Scott Nunley (Nunley) by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) (count 1); battery of Nunley (§ 242) (count 2); assault of Sean Levens (Levens) by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 3); battery of Levens with serious bodily injury (§ 243, subd. (d)) (count 4); and battery of Jacob Thill (Thill) (§ 242) (count 5). The court found true two prior strike conviction allegations (§ 1170.12) and four prior prison term allegations (§ 667.5, subd. (b)).
All undesignated section references are to the Penal Code.
Appellant was sentenced to 53 years to life in state prison.
Appellant contends the courts voluntary intoxication instructions were erroneous and misleading. Alternatively, he contends his trial counsel was ineffective in failing to object to the courts misleading voluntary intoxication instructions and to request an instruction informing the jury that voluntary intoxication could be considered in determining whether he had the requisite intent required for aiding and abetting. In a related petition for habeas corpus, appellant reiterates his incompetence of counsel claim. We reject appellants contentions on appeal and deny his petition for habeas corpus.
BACKGROUND
On November 25, 2005, appellants codefendant, Stephen Aiden Watson, was employed as the resident manager of an adult drug and alcohol rehabilitation center in Lytton Springs (Lytton Springs). Appellant and Travis Young were resident patients of Lytton Springs.
Watson is not a party to this appeal.
Young testified against appellant and Watson pursuant to a plea agreement he entered in the case.
At about 11:00 p.m. on November 25, 2005, Watson, appellant, Young, Danny Weiss, Anthony James, Juba Kenyon, and "Cliff" went out "for a night on the town." Five of the seven men were from Lytton Springs. The seven men rode together in a white Lytton Springs van that Watson had access to. Watson drove the van the entire night. The men first went to the Nutty Irishman bar in Santa Rosa where they stayed for an hour and a half. Young saw appellant drink "a couple of beers" while they played pool. The men then went to two more Santa Rosa bars; the third being the Round Robin.
On the same evening, Levens, home on leave from the Navy, went out to dinner at the Aleworks in Santa Rosa with his wife; two of her friends; his brother-in-law, Jacob Thill; and Thills friend, Scott Nunley. Levens and Thill were age 24, Nunley was age 23. They had drinks at the Aleworks and then went to the Round Robin. Shortly after they arrived at the Round Robin, Levenss wife and her friends left. The victims stayed; they were drinking and playing pool and became intoxicated.
Hereafter, Levens, Thill and Nunley are collectively referred to as "the victims."
After about two hours, the victims left the Round Robin to have a cigarette. Outside the bar, the bouncer was involved in an altercation with two or three men. For about five or 10 minutes, Thill helped the bouncer by trying to calm down the scene. Thereafter, the men involved in the altercation walked to the back of the bar parking lot. The bouncer told everyone in the bar to leave. The victims decided to walk a half block to a Chevron station where Levenss wife would pick them up so they did not have to drive drunk. As the victims walked toward the gas station, a white van drove by and the people inside started yelling obscenities toward the victims. Levens said at least four or five people were inside the van.
When the victims arrived at the Chevron station, Levens went to use the phone and Nunley and Thill went to get snacks or use the ATM. The van pulled quickly into the Chevron station, came to a screeching stop, and the people inside "hopped out." The first person out of the van approached Levens and started screaming, "Fuck you," and "Ill fuck you up." Levens gestured with his hands and asked, "Whats the problem?" That first person started coming at Levens and then Levens got into "a fist fight" with him. Levens was not sure whether he or the man threw the fist punch. Levens felt someone else punch him in the back of the head, knocking him to the ground. Levens lay on the ground covering his head while at least two people kicked him repeatedly for a couple of minutes. Before losing consciousness, he heard people laughing and yelling at him and was aware of another fight breaking out. As a result of the attack, Levens suffered multiple skull fractures, brain bleeding, chipped teeth, and cuts and bruises. At a pretrial photo lineup and at trial, Levens identified appellant as one of the persons involved in the attack. Levens was positive that appellant was present at the attack but could not say what exactly appellant did and whether appellant had actually hit him. However, Levens said that the first man who assaulted him was smaller than appellant.
According to Nunley, as the victims walked to the Chevron station, a white van pulled up, a door opened, and a White, shirtless man inside the van yelled profanities. Nunley testified "they were pretty instigating for a fight." Nunley described the mans tone of voice as "very loud," "very aggressive," and "very inebriated." When the van pulled up and parked in the Chevron station, six or seven men got out of the van. Two or three of the men approached Levens and started punching him. After Levens fell to the ground, two or three persons started forcefully kicking him. When Nunley ran to help Levens, someone jumped in front of him and told him to stop and back up. Nunley described the person who stopped him as very stocky, about 5 feet 9 to 11 inches tall, weighing at least 200 pounds, and with very short reddish, blondish hair. Within a couple of seconds, Nunley was hit in the face by a different man, causing him to fall and briefly lose consciousness. When Nunley regained consciousness, he was aware of at least three men kicking and stomping his face and body between 10 and 25 times. While on the ground, Nunley struggled with two of his assailants, biting one on the leg and attempting to gouge anothers eyes. The beating lasted two to five minutes. He suffered a cut lip and cheek, bruised ribs, and scratches across his torso. Nunley was unable to indentify any of his assailants in court. Nunley said he wore a green T-shirt at the time of the assault.
According to Thill, when the van initially approached, its door opened and a White, shirtless man of medium build began yelling that he wanted to fight. Thill identified the shirtless man as Watson. Others in the van were also yelling and pointing. When the van returned and stopped at the Chevron station, at least six men got out of the van and most of them, including Watson, "went straight for [Levens]" and started attacking him. When Thill and Nunley attempted to help Levens, they were attacked by several men, including Watson. The assailants rotated between the victims. While Thill was on the ground, he was assaulted by multiple people. Thill said one of his assailants looked older, had spiky hair, "kind of looked like a drug addict," with "sucked in cheekbones," and was about 5 feet 11 inches and weighed about 230 to 240 pounds. That assailant, identified by Thill as appellant, hit Thill about 10 times with closed fists in the face and head, and kicked Thill when he fell to the ground. Thill said he saw appellant coming at him with clenched fists from the vicinity of Nunley. By fighting Thill, appellant prevented Thill from coming to Nunleys aid. As a result of the attack, Thill suffered injuries to his head, face, a tooth, ribs, and back. On cross-examination, Thill said that several of the men in the van were shirtless, including appellant.
Reese Ramirez was at the Round Robin when the bouncer told everyone to leave. As Ramirez left the Round Robin, he saw people getting into a white van parked in a small driveway to the right of the Round Robin. Ramirez then saw three men walking to the Chevron station, and saw the van accelerate, pull into and stop abruptly inside the Chevron station and five or six people get out. Ramirez then witnessed a "full-fledge brawl." When Ramirez yelled "stop" the assailants ran back to the van and drove off. Ramirez identified appellant as the man who "stomped" on the victim wearing a green shirt. Ramirez also identified appellant as the person who angrily followed the bouncer into the Round Robin and said, "Where are those pussies?" or "They must have left." Ramirez identified Watson as looking "very familiar" and said he might have been at the Chevron station.
Following the incident, Santa Rosa Police Officer Griffin showed Ramirez and the victims a photo lineup. Ramirez identified appellant as "definitely" being at the bar and the Chevron station, and "stomp[ing] on a head three times near the gas pumps." Nunley identified appellant as looking familiar and being "the guy yelling from the van." Thill identified appellant as being at the Red Robin and the Chevron station, and said appellant punched him. Levens said appellant "look[ed] familiar" from the Chevron station and was "acting crazy," but Levens did not know if appellant hit anyone.
James Fitzgerald was buying a beverage at the Chevron station at the time of the assault. As he got into his car he heard numerous male voices yelling and uttering profanity as they exited the white van. Fitzgerald saw a man in a green shirt get attacked from behind by more than one attacker near the back of Fitzgeralds truck. The man received multiple "fist blows and soccer-style kicks." The two other victims were being assaulted in front of the Chevron store. The altercation lasted no more than two and one-half minutes. The assailants were "focused and directed. They knew who they were moving toward." The "older" assailant was the last to enter the van and sat in its passenger seat. Fitzgerald did not see the older man assault anyone, but he stood watching as one of the victims pleaded for help. Fitzgerald said all of the people in the van were working together. There were multiple attackers on each of the three victims, "never a one-on-one situation." At trial, Fitzgerald testified appellant was "possibly" the older assailant. However, shortly after the incident, Fitzgerald said he was 85 to 90 percent sure that appellant was the older assailant and told Santa Rosa Police Detective Harrington he was 95 percent sure that appellant was the older assailant.
Detective Harrington testified that in December 2005 Fitzgerald identified appellant from a photo lineup and said he was 85 to 95 percent sure appellant was the "old guy" whom he saw hit one of the victims in the head and who got into the van last. Fitzgerald told Harrington that toward the end of the assault when police sirens were audible, appellant separated himself from the other assailants and moved closer to the Chevron store.
Young testified that, when he and the other assailants left the Round Robin, Watson was driving and appellant was in the first row right rear passenger seat. Young was unaware of any physical altercation while at the Round Robin. Young described appellants mood inside the van as "hyper"; he was "loud," "fidgety," and "moving around." Young did not recall any of the vans occupants yelling, but said the van was being driven in a "reckless" manner. When Watson drove the van into the Chevron station, Young saw one of the three victims walking through the gas station throwing up his arms like a field goal sign. James and Watson then left the van first, followed by the other passengers. Young first saw Watson and James fighting one of the victims and then saw appellant wrestling on the ground and exchanging blows with another of the victims. When Young tried to help appellant, he was punched by the victim appellant was fighting. Young then started punching that victim. After Young began kicking and stomping the victim, appellant began kicking and stomping the victim. Then Kenyon came over and started kicking the victim with Young and appellant. After the assault, the assailants entered the van, stopped at another gas station for snacks and headed back to Lytton Springs. Everyone in the van talked about what had happened and passed around a cell phone belonging to one of the victims. Appellants tone of voice was "mellow." When they arrived back at Lytton Springs, they were loud. Young said, "half the guys were drunk so they were loud" and "hyper."
In a recorded phone call from jail, appellant said, "[M]utual combat;" "I mean the . . . dude never got . . . I never got hurt and neither did he." He thought he was not being charged for fighting the person(s) he actually fought with, but for fighting "for Tony and Ricky," "[who] are saying I never got in a fight with `em."
Closing Arguments
The prosecutor argued that appellant was guilty as both an active participant as well as an aider and abettor in the charged offenses. He also argued that appellant was liable for the natural and probable consequences of his actions. On the issue of intoxication, the prosecutor argued: "Theres been some evidence that certainly the victims have been drinking but also that [appellant] and [Watson] had been drinking. [¶] Theres no indication as to what level of sobriety that they have. Theres no indication to even suggest that they were not of a position to where they could clearly fight. No indication that they were unable to walk. There was no indication that they were unable to speak in a manner that would be consistent with not being intoxicated. There was no evidence that they were intoxicated. But if for some reason you believe that there is, that is not a defense. Voluntary intoxication is not a defense to this assault." Later in the argument, the prosecutor again stated, "Again, voluntary intoxication is not a defense to an assault."
The thrust of appellants argument was that the prosecution had not met its burden of proving that appellant committed the charged offenses.
DISCUSSION
I. There Was No Instructional Error
On appeal, appellant contends the court erred in failing to instruct the jury pursuant to CALCRIM No. 404 or any similar instruction that intoxication could be considered in determining whether appellant had the requisite knowledge and intent to aid and abet the commission of the charged offenses. He argues that the instructions given reduced the prosecutions burden of proving knowledge and intent beyond a reasonable doubt in violation of his federal constitutional rights under the Fifth and Sixth Amendments.
CALCRIM No. 404 (2008) provides:
"If you conclude that the defendant was intoxicated at the time of the alleged crime, you may consider this evidence in deciding whether the defendant:
"A. Knew that __________ <insert name of perpetrator> intended to commit __________ <insert target offense>;
"AND
"B. Intended to aid and abet __________ <insert name of perpetrator> in committing __________ <insert target offense>.
"Someone is intoxicated if he or she (took[,]/used[,]/[or] was given) any drug, drink, or other substance that caused an intoxicating effect.
"Do not consider evidence of intoxication in deciding whether __________ <insert charged nontarget offense> is a natural and probable consequence of __________ <insert target offense.]"
The court did instruct the jury on general intent (CALCRIM No. 250), the general principles of aiding and abetting (CALCRIM No. 400), aiding and abetting intended crimes (CALCRIM No. 401), and aiding and abetting liability for nontarget crimes which are the natural and probable consequences of target offenses (CALCRIM No. 403). The court also instructed the jury on assault with force likely to produce great bodily injury (CALCRIM No. 875) and simple assault (CALCRIM No. 915). Both the CALCRIM No. 875 and CALCRIM No. 915 instructions given expressly stated "[v]oluntary intoxication is not a defense to assault."
Appellant concedes he did not request a voluntary intoxication instruction below or object to the instructions as given. He cites People v. Mendoza (1998) 18 Cal.4th 1114, 1134 for the proposition: "a trial court has no sua sponte duty to instruct on the relevance of intoxication, but if it does instruct, as the court did here, it has to do so correctly." Appellant argues that because the court instructed the jury that voluntary intoxication is not a defense to assault, it is "highly likely" the jury construed the totality of the courts instructions to mean it could not consider his voluntary intoxication in determining whether he formed the requisite specific intent to establish his liability as an aider and abettor. He argues that this is especially so in light of the prosecutors argument that the jury need not agree on whether appellant and Watson were aiders and abettors or direct perpetrators of the charged offenses. Appellant also argues that the evidence of his direct participation in the attacks on Nunley and Thill was conflicting and inclusive, making it more likely the jury convicted him as an aider and abettor.
Generally, failure to object to an instruction and request an alternative instruction on the law precludes an appellant from raising the instructional error issue on appeal. (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Stone (2008) 160 Cal.App.4th 323, 331.) We conclude that appellants failure to request a voluntary intoxication instruction as to aiding and abetting or to object to the instructions given waives his claim of instructional error on appeal.
Even assuming there is no waiver, the instruction error claim fails on the merits because no substantial evidence in the record supports a voluntary intoxication instruction. "[A] defendant is entitled to an instruction on voluntary intoxication `only when there is substantial evidence of the defendants voluntary intoxication and the intoxication affected the defendants "actual formation of specific intent." [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 715; see also People v. Ivans (1992) 2 Cal.App.4th 1654, 1661.)
Appellant argues the following evidence supports the giving of a voluntary intoxication instruction: (1) Prior to the incident, he was receiving treatment at Lytton Springs, a drug and alcohol treatment center; (2) Young saw appellant drink "a couple of 12-ounce beers" at the first bar they went to, the Nutty Irishman; (3) thereafter, appellant and the other assailants went to two more bars; (4) Nunley said that right before the assault a shirtless man leaning out of the van and yelling "sounded very inebriated"; (5) Young described the incident as a "fight between drunks that got out of hand"; (6) Levens said during the photo identification that appellant was "acting crazy"; and, (7) Young said that while in the van after the attack, "[h]alf the guys were drunk." However, this evidence provides scant support that appellant was intoxicated at the time of the assault and what effect, if any, his alleged intoxication had on him. (See Roldan, supra, 35 Cal.4th at p. 715.)
That appellant was a resident of a residential drug and alcohol treatment center sheds no light on whether he was intoxicated at the time of the assault. While there is evidence that appellant had a couple of beers earlier in the evening, there is no evidence that he drank anything thereafter. In addition, Youngs comments about the fight being "between drunks" and that after the attack "half the guys [in the van] were drunk" provide no evidence of appellants intoxication at the time of the assault. Similarly, Levenss statement that appellant was "acting crazy" does not establish that appellant was intoxicated or whether it affected his ability to form the specific intent to aid and abet the attack. Even assuming that Nunleys comment about the shirtless man sounding very inebriated just prior to the attack was a description of appellant, there is no evidence to establish that his voluntary intoxication precluded him from forming the specific intent to aid and abet the assault. There is no evidence that he was impaired with respect to his language, gait, demeanor or ability to comprehend his actions or the speech or actions of others. In fact, after he was taken into custody, appellant described the incident as "mutual combat."
With no citation of authority, appellant argues the fact that the court gave partial instructions on voluntary intoxication confirms there was substantial evidence of his intoxication. The intoxication portion of the assault instructions given was not discussed during the colloquy between the court and counsel regarding jury instructions. Thus, it suggests nothing about whether there was substantial evidence to support it.
II. There Was No Ineffective Assistance of Counsel
Appellant alternatively argues that defense counsels failure to object to the courts misleading voluntary intoxication instructions and/or to request instructions permitting the jury to consider evidence of his voluntary intoxication as to whether he had the requisite intent necessary for aiding and abetting constituted ineffective assistance of counsel.
A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsels performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Prejudice is shown when "there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
Moreover, "[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsels omissions. [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 442.) "When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.]" (People v. Anderson (2001) 25 Cal.4th 543, 569.)
In this case, we conclude the record does not demonstrate that there could be no rational tactical reason for defense counsels failure to request the voluntary intoxication instruction or object to the instructions given. First, as we noted, ante, substantial evidence does not support a voluntary intoxication instruction. Second, defense counsel could have made a tactical judgment that a voluntary intoxication defense was inconsistent with and would have diluted the main defense theory that he was neither a direct participant nor an aider and abettor in the assault.
Based on these possible tactical considerations by defense counsel, we conclude that appellants claim for ineffective assistance of counsel fails.
Appellants petition for habeas corpus raises the identical issue of ineffective assistance of counsel. For the same reasons that we reject appellants ineffective assistance of counsel claim on appeal, we summarily deny his petition for habeas corpus.
DISPOSITION
The judgment is affirmed. The petition for habeas corpus is denied.
We concur:
JONES, P.J.
NEEDHAM, J.