Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. MA034904, Charles A. Chung, Judge
Thomas T. Ono, 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, Linda C. Johnson, Supervising Deputy Attorney General, Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Marque Rashad Thompson appeals a judgment following conviction of murder and three counts of attempted murder, with findings that he discharged a firearm causing death and great bodily injury. (Pen. Code, §§ 187, subd. (a), 664, subd. (a), 12022.53, subds. (b)-(d).) We affirm.
All statutory references are to the Penal Code unless stated otherwise.
FACTS AND PROCEDURAL HISTORY
In the evening of March 5, 2006, Niqueko Hoffman attended a birthday party on Gadsen Avenue in Lancaster with his younger brother, Paul. Members of the criminal street gangs, the "Bloods," and the "Shotgun Crips," also attended the party. When the party ended around 2:30 a.m., Hoffman and Paul began walking home.
As they walked by a compact four-door automobile, Thompson left the automobile and stated that he wanted to fight. Hoffman knew Thompson as a criminal street gang member whose moniker was "Frost." A man whose moniker was "Texas" accepted Thompson's challenge, and the two fought in the street near a boat trailer. "Texas" beat Thompson to the ground. After he fell, Thompson shouted: "I'm Big Frost and I don't give a fuck."
Thompson arose, returned to the automobile, and stated, "Let me get the gun" or "[I'll] go get the burner." He argued or struggled with a person in the backseat for possession of the gun. A shot fired inside the automobile and Hoffman, Paul, and other partygoers began to run. Hoffman pushed Paul forward, urging him to run faster.
Thompson fired the gun over the top of the automobile. Hoffman later stated to police officers that "after the shooting started, [he] ducked. Bullets [were] flying across from [him] and in back of [him]." (Count 3.) Thompson stood approximately 13 feet away. Hoffman saw Morris Jefferson, whose moniker was "Peanut," fall to the ground. Hoffman sought protection behind the boat trailer, then ran back to the house where the party was held. He saw a person drive the automobile away and heard one more gunshot.
Hoffman then walked to the middle of the street where he found Paul mortally wounded from two gunshots, one to the back of the neck and one to the leg. (Count 1.)
Another partygoer, Jaidaniel Freeman, saw Thompson firing the gun and saw Paul and Jefferson fall to the ground. Freeman saw Thompson take the gun from the floorboard of the backseat of the automobile. Freeman knew Thompson as "Frost" and "Bozo."
Jefferson testified that he heard gunshots as he left the party. He ducked and lay in the middle of the street. As he turned around, he was shot in the head. (Count 2.) Jefferson did not see the person firing the gun. While he was hospitalized for his head wound, however, Thompson telephoned Jefferson and apologized for shooting him.
Partygoer Kristopher Allen testified that Thompson fired the gun four to six times. When the shootings occurred, Paul was "right behind" Allen and Jefferson was three or four feet ahead, "basically an arm's length" away. Allen estimated that Thompson stood approximately seven to ten feet away as he fired the gun. He testified that he "seen more shots coming' at [him]" and consequently, "duck[ed] down." (Count 4.) Allen knew Thompson as "Oh Boy."
Approximately two weeks following the shootings, Hoffman identified Thompson in a photographic lineup as the gunman who shot his brother. Freeman also identified Thompson in a photographic lineup.
The jury convicted Thompson of murder and three counts of attempted murder. (§§ 187, subd. (a), 664, subd. (a).) It also found that he personally used and discharged a firearm regarding all counts, and caused death or great bodily injury regarding counts 1 and 2. (§ 12022.53, subds. (b)-(d).) The jury acquitted Thompson of the attempted murder of "Texas," a victim whom police officers were unable to identify further or locate, and who did not testify at trial. (Count 5.)
The trial court sentenced him to 75 years to life imprisonment, plus 2 life terms, plus 20 years. The trial court imposed a $10,000 restitution fine and a $10,000 parole revocation restitution fine, ordered victim restitution, and awarded 282 days of presentence custody credit.
Thompson appeals and contends that: 1) the trial court erred by denying his request for self-representation pursuant to Faretta v. California (1975) 422 U.S. 806; 2) insufficient evidence supports his conviction of premeditated murder (count 1); and 3) insufficient evidence exists of his intent to kill (counts 2, 3, and 4).
DISCUSSION
I.
Thompson argues that the trial court abused its discretion by denying his motion, made on the first day of trial, to represent himself. (Faretta v. California, supra, 422 U.S. 806; People v. Herrera (1980) 104 Cal.App.3d 167, 174-175 [error to summarily deny Faretta motion made on first day of trial].) He contends the error is reversible per se. (McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8 [standard of review of denial of timely Faretta motion].)
A defendant has a federal constitutional right to represent himself if he voluntarily and intelligently elects to do so. (Faretta v. California, supra, 422 U.S. 806.) To invoke an unconditional right of self-representation, the defendant must assert the right within a reasonable time prior to commencement of trial. (People v. Burton (1989) 48 Cal.3d 843, 852.) After this period, the trial court possesses the discretion to grant or deny the motion. (Ibid.) In exercising its discretion, the trial court should consider the quality of counsel's representation, defendant's prior motions, if any, to substitute counsel, the reason for the self-representation request, the length and stage of the proceedings, and any disruption or delay that might follow the granting of the request. (Id., at p. 853.)
Our Supreme Court has not adopted "a rigid rule that any Faretta motion made before the actual commencement of trial is deemed timely." (People v. Clark (1992) 3 Cal.4th 41, 99.) When the trial court denies a Faretta motion on the grounds that it is untimely, the reviewing court must accord "'considerable weight'" to the trial court's exercise of discretion and "examine the total circumstances confronting the trial court when the decision is made." (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)
The trial court did not err by denying the Faretta motion because it was untimely. (People v. Burton, supra, 48 Cal.3d 843, 852-853.) Thompson first sought to represent himself after the parties announced readiness for trial, the matter was transferred to a trial court, and jury selection set to begin. (People v. Burton, supra, 48 Cal.3d 843, 853 ["Defendant did not invoke his right to self-representation until after the case had been called for trial, both counsel had answered ready, and the case had been transferred to a trial department for pretrial motions and jury trial."].) During five months of pretrial proceedings, Thompson did not assert his right to self-representation despite his appearances in court. (Id. At p. 854 ["Defendant had had several opportunities before the case was called for trial to move to represent himself, and he failed to state any cause for the delay in his request."].) Thompson also asked for a 60-day continuance to prepare his own defense. Moreover, the trial court held a precautionary hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, to determine whether Thompson was receiving the effective assistance of counsel. The trial court acted within its discretion by denying the belated request.
II.
Thompson asserts there is insufficient evidence to support his conviction of first degree murder pursuant to theories of premeditated murder or transferred intent. He argues that the homicide resulted from a rash impulse rather than premeditation and deliberation. Thompson contends that the first degree murder conviction may not rest upon the transferred intent rule because there is insufficient evidence of the location of "Texas" at the time of the shooting. (People v. Bland (2002) 28 Cal.4th 313, 317 [the classic doctrine of transferred intent applies when defendant intends to kill one person but mistakenly kills another].)
In assessing the sufficiency of evidence to support a conviction, we review the evidence and draw all reasonable inferences therefrom to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could found guilt beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) We do not reweigh the evidence nor do we determine witness credibility. (Ibid.) The standard is the same for circumstantial evidence of guilt. (Ibid.)
Evidence sufficient to support a finding of premeditation and deliberation involves evidence of planning, motive, and manner of killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) These factors, however, "while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (People v. Perez (1992) 2 Cal.4th 1117, 1125.) "[P]remeditation can occur in a very brief period of time. . . . " (People v. Miranda (1987) 44 Cal.3d 57, 87, disapproved on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) "'"The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ."'" (Ibid.)
Sufficient evidence supports the conviction of first degree murder under either theory.
Thompson fought with "Texas," lost the fight, and shouted: "I'm Big Frost and I don't give a fuck." Thompson walked to the automobile, stating his intent to get a gun or "burner." He argued and struggled with someone in the backseat regarding the gun and a shot fired within the automobile. After wresting the gun away, Thompson began firing at the crowd of partygoers from a distance of seven to thirteen feet. He discharged the weapon six or seven times into the group of fleeing partygoers. The trier of fact reasonably found sufficient evidence of premeditation and deliberation.
Moreover, there exists sufficient evidence of first degree murder within the rule of transferred intent. (People v. Bland, supra, 28 Cal.4th 313, 317, 320-321.) Evidence established that Thompson intended to kill "Texas" in retaliation. Allen testified that Paul, Jefferson, and "Texas" were within an arm's length away at the time Thompson began shooting from a distance of seven to thirteen feet. Evidence also included photographs of the street and testimony regarding the physical positions of Thompson and his victims. The jury weighed the evidence and determined the credibility of the witnesses. "Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone." (Id., at p. 330.)
In addition, we interpret the acquittal regarding the attempted murder of "Texas," (count 5), an act of mercy by the trier of fact. (People v. Lopez (1982) 131 Cal.App.3d 565, 571.) Thompson "can neither complain nor gain further advantage" of the acquittal. (Ibid.)
III.
Thompson argues that there is insufficient evidence of his intent to kill regarding counts 2, 3, and 4. Specifically, he asserts that there exists insufficient evidence that the victims of the attempted murders were within a "kill zone." (People v. Bland, supra, 28 Cal.4th 313, 331; CALJIC No. 8.66.1 ["Attempted Murder" Concurrent Intent"].)
A defendant may be convicted of the attempted murder of persons "within [a] kill zone" pursuant to a concurrent, but not transferred, intent theory. (People v. Bland, supra, 28 Cal.4th 313, 331.) The issue of a "kill zone" and the defendant's concurrent intent to kill are factual questions to be decided by the trier of fact. (CALJIC No. 8.66.1.)
Here Allen testified that "Texas" and the other victims were within an arm's length of him and that Thompson was shooting from a distance of seven to ten feet from the victims. Although Thompson telephoned Jefferson and apologized for shooting him, the trier of fact was not required to accept that evidence as conclusive of Thompson's lack of intent to kill. Moreover, issues regarding Allen's perceptions, recall, and certainty regarding the victims' physical positions were matters for the trier of fact to decide. Upon appeal, we do not reweigh the evidence, draw different inferences therefrom, or redetermine the credibility of witnesses. (People v. Snow, supra, 30 Cal.4th 43, 66.)
The judgment is affirmed.
We concur: YEGAN, J. COFFEE, J .