Opinion
B231355
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS E. THURMAN, Defendant and Appellant.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA366352)
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael Johnson, Judge. Affirmed.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Nicholas E. Thurman appeals from the judgment following his convictions for shooting at an occupied vehicle (Pen. Code, § 246), assault with a semiautomatic firearm (§ 245, subd. (b)), and possession of a firearm by a felon (§ 12021, subd. (a)(1)). We affirm.
All further references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
On December 29, 2009, at approximately 3:30 a.m., Carlos Loaiza drove through the Jack-in-the-Box on Manchester and Hoover. He drove away and when he got to 79th Street he noticed there was another vehicle following him. He stopped on Broadway, and was waiting to make a left turn, when the car that had been following him pulled up along the driver's side of his car, in an oncoming traffic lane. Appellant was driving and started yelling angrily at him. Appellant reached toward the center console, and then looked like he was getting out of his car. Loaiza turned left on the red light because he was afraid. As he did so, appellant got out of his car and shot five or six times toward Loaiza's car as he was driving away. Loaiza was not injured, but some of the shots hit his car. Loaiza had never met appellant before that night.
Police officers at the nearby police station on 77th and Broadway heard the shots and ran out of the station. Loaiza drove to the police station and told them what had happened. Just then, appellant's car passed the police station.
Los Angeles Police Officer Rafael Quesada was on patrol in the area of San Pedro and 78th street when he heard a broadcast about the shooting, which included a description of appellant's vehicle. He then saw appellant's car speeding across San Pedro on 74th Street. He pursued appellant's car with his lights and siren activated for about two minutes until appellant eventually stopped at 61st and Central. Though appellant did not initially comply with the officers' commands to raise his hands, he eventually did and was arrested.
Anisa Frazier was also in the car and a gun was recovered from her purse. Later, Officer Quesada inspected Loaiza's vehicle; he saw bullet holes on the exterior of the vehicle and recovered a spent .380 round from the floorboard of the rear passenger side of the vehicle. Los Angeles police Officer Ernest Sparkman recovered seven spent .380 casings in the roadway at 79th and Broadway. All of the casings, as well as the spent round recovered from Loaiza's vehicle, were subsequently tested and found to have been fired from the gun recovered in appellant's car. Loaiza was brought to the location and identified appellant as the shooter.
Appellant and Ms. Frazier's hands were tested for gunshot residue. Los Angeles Police Officer and criminalist Kevin Hollomon examined the gunshot residue kit swabs taken from appellant and Ms. Frazier. Gunshot residue was detected on appellant's test but not on Ms. Frazier. Loaiza was not tested for gunshot residue.
Frazier did not want to testify and had to be picked up by police in the middle of the night on a bench warrant for failing to appear in court before the prosecution secured her presence and testimony. On the morning of the shooting, Frazier told police that appellant shot the gun, but she recanted this at trial. At trial, she testified she was asleep in the passenger seat and awoke when she heard gunshots. Frazier said appellant had been driving, but he was not in the car at the time she heard the shots. He got back in the car after she heard the gunshots. Frazier told appellant to stop when the police were following them. When they were stopped by police she noticed that her purse was unzipped and a gun was inside of it.
Defense
Appellant testified in his own behalf and said that on the night in question he noticed someone was following his car so he stopped and asked the driver if he was following him and whether there was a problem. Loaiza was driving the car and did not respond to him. Appellant got back in his car and continued driving when he noticed the same car was still following him. Appellant was at a stop light and saw Loaiza's car maneuvering to a position near his. Appellant jumped out of his car, approached Loaiza's and asked if there was a problem. Appellant noticed Loaiza had a gun near his center console and feared for his life. He wrestled with Loaiza. Appellant pulled Loaiza out of the car and grabbed him by the neck. At this point, Loaiza had the gun in his hand. As they continued fighting, the gun went off, but appellant did not remember how many times. Loaiza dropped the gun and got back inside his car. Appellant retrieved the gun, threw it inside his car, got back in his car and followed Loaiza who was driving at a high rate of speed. Appellant noticed the police were following behind him but said they did not have on their lights and sirens activated until just before he was arrested. Appellant claimed he complied with all the officers' requests to put up his hands, and that one threatened him by saying, "If you move, I'll blow your head off."
Appellant and Frazier were placed in the back of the same police car, where they were kept for about an hour. The officers refused to roll down the patrol car's windows even though appellant told them he was sick and ready to vomit. The police took a GSR test from him. Appellant asked police to take a GSR test from Loaiza.
Appellant admitted he told the police a different version of the events on the night he was arrested, but claimed he did so only because he was "still shooken up." Initially, appellant invoked his Miranda rights and told police he did not want to talk to them because he had been "railroaded by detectives before." Appellant found out Frazier had been released and spoke with her on the telephone. After that, appellant decided to talk with the officers. Appellant told the officers that he confronted Loaiza because he thought he was following him. Appellant said that it was Loaiza who had the gun and, when Loaiza realized appellant had it, he sped off.
Miranda v. Arizona (1966) 384 U.S. 436.
Appellant admitted he had been previously convicted of grand theft and robbery.
Rebuttal
On the morning of appellant's arrest, Los Angeles Police Officer Nicholas Hartman advised appellant of his Miranda rights. Appellant said he did not want to speak to the officers, but then began to ask questions of them. The conversation turned to the shooting, and appellant told the officers he was being followed by someone. He said he had no idea how a gun got into the car.
Later in the afternoon, appellant indicated that he wanted to speak with the officers. Appellant told them that a few days earlier he had been involved in a minor car accident with a Hispanic man and that the man "started acting . . . stupid," so appellant "started slapping him around." Appellant said other Hispanics in the area came to the man's aid. Appellant thought that the man who was following him was involved in the earlier fracas because he was Hispanic. Appellant also said that he thought Loaiza was following him because Loaiza was a pimp and appellant had been "fucking with some hoes standing on the corner," prompting Loaiza to start following appellant. Appellant then said he confronted Loaiza as he was seated in his car with the window down. When appellant approached Loaiza, he appeared startled and surprised. Appellant reached through the window and started choking Loaiza after which the two started "tussling." While they were involved in a struggle was when shots were fired. Appellant said the gun came from Loaiza. Appellant said Loaiza got scared, jumped in his car, and left. Appellant then threw the gun in his car and left. Appellant said he never fired the gun toward the car as it was driving off.
Jury Verdicts and Sentence
Appellant was acquitted of attempted murder (count 1) but found guilty in counts 2 through 4 of shooting at an occupied motor vehicle, assault with a semiautomatic firearm, and possession of a firearm by a felon. (§§ 246, 245, subd. (b); 12021, subd. (a)(1).) The special allegation that he personally used a firearm (§ 12022.5) was found true on the assault alleged in count 3.
The trial court sentenced appellant to an aggregate term of 42 years to life as follows: the upper term of 9 years on the assault alleged in count 3, tripled to 27 years under the three strikes law, plus a 10-year term for the personal firearm use enhancement (§ 12022.5), plus a 5-year term for a prior serious felony conviction (§ 667, subd. (a)(1). The trial court stayed the sentence on count 2 (shooting at a vehicle) under section 654. The trial court imposed a concurrent term of 25 years to life for the firearm possession offense in count 4.
Appeal
On appeal, we appointed counsel, who filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, setting forth the facts of the case and requesting we review the entire record on appeal for arguable issues. Appellant submitted a supplemental brief, claiming the trial court erred in denying his Youngblood motion, and his new trial motion based on the same subject.
Arizona v. Youngblood (1988) 488 U.S. 51.
--------
DISCUSSION
Appellant contends the trial court should have granted his motion to dismiss or suppress evidence pursuant to California v. Trombetta (1984) 467 U.S. 479 and Arizona v. Youngblood, supra, 488 U.S. 51, made at trial and reiterated in his new trial motion. More specifically, appellant claims he was denied due process because a gunshot residue test was either not taken on Loaiza or the results were not preserved. We disagree.
It is well established that the police have no obligation to collect evidence for the defense (People v. Holt (1997) 15 Cal.4th 619, 663-665; People v. Wimberly (1992) 5 Cal.App.4th 773, 791.) However, "[l]aw enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence 'that might be expected to play a significant role in the suspect's defense.' [Citations.] To fall within the scope of this duty, the evidence 'must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.' [Citations.]" (People v. Roybal (1998) 19 Cal.4th 481, 509-510, quoting California v. Trombetta, supra, 467 U.S. at pp. 488-489.) " '[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.' " (People v. Hines (1997) 15 Cal.4th 997, 1042, quoting Arizona v. Youngblood, supra, 488 U.S at p. 58.) The United States Supreme Court has indicated that negligence does not constitute bad faith. (Arizona v. Youngblood, supra, 488 U.S. at p. 58.)
In this case, gunshot residue was not collected from Loaiza. As such, there was nothing for the police to preserve and appellant's contention fails from the start.
Aside from appellant's claim, we have independently reviewed the record submitted on appeal, and are satisfied that appellant's appointed counsel has fulfilled her duty, and that no arguable issues exist. (See People v. Wende, supra, 25 Cal.3d 436, People v. Kelly (2006) 40 Cal.4th 106.)
DISPOSITION
The judgment is affirmed.
BIGELOW, P. J.
We concur:
RUBIN, J.
GRIMES, J.