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People v. Toro

California Court of Appeals, Third District, Sacramento
Mar 10, 2008
No. C052467 (Cal. Ct. App. Mar. 10, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOSEPH TORO, Defendant and Appellant. C052467 California Court of Appeal, Third District, Sacramento March 10, 2008

NOT TO BE PUBLISHED

Sup.Ct. No. 04F10065

MORRISON, J.

On the night of November 7, 2004, defendant was socializing with several friends at the home of Annette S. When he left about 3:30 a.m., Annette’s boyfriend lay on the kitchen floor, shot in the head. A jury convicted defendant of the first degree murder of Keith Kerwin (Pen. Code, § 187, subd. (a); § 189), finding he personally used a firearm and caused great bodily injury (Pen. Code, § 12022.53, subd. (d)), and unlawful possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). Sentenced to 53 years to life in prison, he appeals. Defendant contends there is insufficient evidence of first degree murder, and the trial court erred in refusing instructions on voluntary intoxication and accident and in imposing the upper term for illegal possession of a firearm.

We affirm. There was sufficient evidence of planning and the manner of killing to support a first degree murder conviction. There was no evidence to support instructions on voluntary intoxication or accident. The upper term on count two was properly based on defendant’s recidivism without a jury finding.

FACTS

Annette S. lived with her children, Timothy, 14, and Sabrina, 12. Her boyfriend, Keith Kerwin, known as King, often stayed there. Annette had a roommate Tara W., who lived there with her two children. Tara’s boyfriend Jose or Tony Cruz sometimes spent the night.

Defendant, called Badboy, was a frequent visitor; his cousin Gary Miguel used to be Annette’s boyfriend. Miguel was in prison and due to be released December 9. Defendant often carried a gun which he liked to show off. The gun was a small double barrel Derringer, with shotgun shells in red or green plastic.

On November 7, 2004, Annette, Kerwin, Tara and Cruz were having a steak dinner. Timothy returned with his father and picked up Sabrina; they went to Jimboy’s for dinner. After dinner, Tara and Cruz went upstairs; they watched a movie and fell asleep. Defendant came by with Sheila V.; he bragged that he had fired a shot in the air at while at his grandmother’s home. Timothy and Sabrina returned from dinner and went down the street to a neighbor’s.

When Timothy and Sabrina came home, Timothy decided to play a prank. He rang the doorbell and hid in the shadows. Defendant answered the door and announced whomever it was had three seconds to identify himself or he would shoot. Timothy came out of the shadows and said it was him; he called defendant a psychopath. Defendant laughed; he was holding a gun.

Defendant was acquitted of count three, assault with a firearm.

Defendant and Kerwin wanted some beer, so Annette, Sheila, and the children went to the store and bought beer, limes, and some other things. Shortly thereafter, Timothy and Sabrina went upstairs and went to bed.

Near midnight, Annette, Kerwin, defendant and Sheila went to the XO Club and stayed until closing. On the way to the bar, defendant said, “I’m going to buck someone tonight. I can feel it. I can feel it. I know I am.” Annette understood “buck” to mean shoot. At the bar everyone drank; defendant and Kerwin each had more than one Long Island iced tea. Defendant and Kerwin were having a good time. After the bar closed, the group made several short stops before returning to Annette’s house. At the second stop, defendant and Kerwin went in the kitchen of an apartment and returned sniffling. Defendant had a bag of white powder; he told Kerwin they could make money off of it. The last stop was at the home of defendant’s mother where he picked up a bottle of Hennessy.

When they returned to Annette’s house they were locked out. Annette called Timothy to unlock the door. Once inside, Annette went upstairs. Kerwin had a plan and wanted defendant to go with him to someone’s house. Defendant agreed to go. Kerwin went upstairs and made a phone call. Then he grabbed a boom box and some CD’s and went downstairs.

There was a loud gunshot. Annette screamed, “what happened, what happened?” and ran to the stairs. She saw Sheila by the door and defendant by Kerwin. Defendant was walking towards the front door with a gun in his hand. Sheila said, “come on, Michael, let’s go.” Annette told defendant he had to leave. Defendant put his finger to his lips, said “shh,” and left.

Annette pounded on Tara’s door, yelling that Kerwin had been shot. After calling her cousin and her mother, Annette called 911. The dispatcher asked if the victim was still breathing and Annette sent Cruz downstairs to check. Kerwin was in the kitchen, slumped against the wall with a gunshot wound to the head. He was struggling to breath; it sounded like he was snoring. He died from his injury. Blood analysis showed a blood alcohol level of .10 percent and the presence of cocaine and a metabolite of methamphetamine.

Defendant’s jacket was found in the bathroom downstairs. Inside was a baggie containing .9 grams of methamphetamine.

Forensics determined the murder weapon was a Derringer-type pistol capable of firing a .410 shot shell, an unusual gun. Such a gun was similar to the drawing Timothy made of defendant’s gun. Those shot shells were usually red or green. The single shot fired three projectiles, of which two were recovered, one from Kerwin’s brain. The absence of soot or stripling indicated the shot was fired from more than two or three feet away. The gun used in the killing was never found.

When the police originally interviewed Annette and her children, they did not mention that defendant was present that night. Defendant was a Norteno gang member and Annette was concerned about retaliation. She told her children not to mention defendant. Annette decided to tell the truth after she saw Kerwin in the hospital. She told Timothy and Sabrina to do the same. Annette was also afraid of defendant’s cousin who was to be released from prison soon.

Sheila originally told the police the same story she told at trial as a defense witness. After they returned from the bar, Annette went upstairs, then defendant and Kerwin. Defendant came down, followed by Kerwin with a boom box. They discussed playing Dominos. Sheila went to the bathroom and defendant joined her. The light in the bathroom was out so defendant held a lighter for Sheila to see. They heard a shot. When Sheila opened the door, she saw a man in a green sweatshirt run by and heard the security gate clang. Kerwin was on the ground bleeding. Annette came downstairs yelling and told them to leave. Sheila claimed defendant never had a gun that night; he had his cell phone in his hand when they left.

Sabrina testified when the adults got home from the bar, she heard defendant ask for a light bulb for the downstairs bath.

The police arrested Sheila as an accessory to murder. They told her they did not believe her version of events. She then told a different story; there was no man in a green sweatshirt and defendant was not in the bathroom when the shooting happened. The light in the bathroom worked as it had been fixed. Sheila claimed this second story was what the police wanted to hear and she told it only after the police threatened to call CPS and take her children away.

After the shooting, Sheila and defendant drove around for an hour and a half. Sheila was afraid to ask about the shooting because she knew how defendant got when angry. At one point she asked him, “what are we going to do?” He replied, “don’t even worry about it.”

Sheila was impeached by, among other things, the fact she altered a document in order to receive pay from her employer for several weeks for being a witness in the case. The People granted her immunity on the possible fraud charge.

DISCUSSION

I. Sufficient Evidence of First Degree Murder

After the verdicts, defendant moved for an acquittal, contending there was no evidence of premeditation, deliberation or intent to kill. He contends the trial court erred in denying the motion because there was no animosity between him and Kerwin, no witnesses to the shooting, and thus no evidence to support a first degree murder conviction.

We apply the same standard of review to a denial of a motion for acquittal “as that applied by an appellate court in reviewing a conviction-whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.]” (People v. Ainsworth (1988) 45 Cal.3d 984, 1022.) “[I]t is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. [Citations.]” (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139, original italics.) “Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it. [Citation.]” (People v. Redmond (1969) 71 Cal.2d 745, 755.)

A murder that is premeditated and deliberate is murder of the first degree. (Pen. Code, § 189.) “An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citations.]” (People v. Stitely (2005) 35 Cal.4th 514, 543.)

Appellate courts consider three basic types of evidence to sustain a finding of premeditation and deliberation: (1) planning activity; (2) motive to kill the victim; and (3) the manner of killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) “However, these factors need not all be present, or in any special combination; nor must they be accorded a particular weight. [Citation.] Rather, the Anderson factors serve as an aid to reviewing courts in assessing whether the killing was the result of preexisting reflection. [Citation.]” (People v. Garcia (2000) 78 Cal.App.4th 1422, 1427.)

While there was no evidence of defendant’s motive in killing Kerwin, there was sufficient evidence of planning activity and the manner of killing to support the conviction for first degree murder. Defendant carried a gun that night and waited until he was alone with Kerwin. (See People v. Steele (2002) 27 Cal.4th 1230, 1250 [jury could infer defendant carried the fatal weapon into the home and thus reasonably infer he considered the possibility of homicide at the outset].) Here, the jury did not need to rely solely on an inference that defendant considered killing beforehand because defendant announced his plan. He told [Annette], “I’m going to buck [shoot] someone tonight. I can feel it. I can feel it. I know I am.”

Defendant contends the first degree murder conviction cannot be sustained based on “an insignificant portion” of Annette’s testimony. He argues Annette did not directly testify that defendant said he was going to shoot someone, only that she told the police that. The prosecutor asked Annette if she recalled defendant saying anything on the way to the bar that gave her concern. She did not recall anything. The prosecutor then asked if she told the police defendant made the statement about bucking someone. The defense objection was overruled; the question was permitted as proper impeachment and Annette confirmed she told the police that. The reasonable inference of this testimony is that defendant made the statement. Whether defendant actually said this and whether he shared Annette’s understanding that “buck” meant shoot were factual questions for the jury. “It is axiomatic that substantial evidence includes all reasonable inferences that may be drawn from the evidence, and that in reviewing the sufficiency of the evidence this court must draw all reasonable inferences in support to the judgment, ‘presume . . . the existence of every fact the trier could reasonably deduce from the evidence,’ and may not reweigh the evidence. [Citations.]” (People v. Annin (2004) 117 Cal.App.4th 591, 601.)

The manner of the killing supported a finding of premeditation and deliberation. Defendant stresses the lack of evidence of any animosity between him and Kerwin. Nor was there any evidence of an argument, such as raised voices or a struggle. “The lack of provocation by the victim leads to an inference that an attack was the result of a deliberate plan rather than a ‘rash explosion of violence.’ [Citation.]” (People v. Miranda (1987) 44 Cal.3d 57, 87, overruled on other grounds by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) While not an execution-style killing, a single shot to the head at relatively close range where the victim is unarmed and there was no argument or other provocation is consistent with premeditation and deliberation. (People v. Marks (2003) 31 Cal.4th 197, 230; People v. Koontz (2002) 27 Cal.4th 1041, 1082; People v. Silva (2001) 25 Cal.4th 345, 369; People v. Poindexter (2006) 144 Cal.App.4th 572, 588.)

Finally, the jury could consider defendant’s calm and cool demeanor in determining the killing was first degree murder. (People v. Marks, supra, 31 Cal.4th at p. 232; People v. Vorise (1999) 72 Cal.App.4th 312, 319.) From defendant’s cold blooded response to the killing the jury could infer it was planned and deliberate, rather than a rash impulse. He collected his cell phone from the kitchen and motioned to Annette to remain quiet before leaving. While driving around afterwards, Sheila asked what they were going to do and defendant replied, “Man, don’t even worry about it. Don’t even worry about it.”

There is substantial evidence of first degree murder. The trial court did not err in denying the motion for acquittal.

II. Instructions on Voluntary Intoxication and Accident

Defendant contends the trial court erred in rejecting the defense’s proposed instructions on voluntary intoxication and accident or neglect. Defendant contends that by denying these instructions and thus foreclosing the defense from arguing these theories of the case to the jury, the court violated his due process rights. We reject this contention because there was no evidence to support either instruction.

A defendant is entitled, upon request, to an instruction on voluntary intoxication only where there is substantial evidence of defendant’s voluntary intoxication and that the intoxication affected defendant’s ability to meet an element of the charged offense, such as premeditation, deliberation or specific intent. (People v. Williams (1997) 16 Cal.4th 635, 677; People v. Saille (1991) 54 Cal.3d 1103, 1120.) There must be “evidence from which a reasonable jury could conclude defendant’s mental capacity was so reduced or impaired as to negate the required criminal intent. [Citation.]” (People v. Marshall (1996) 13 Cal.4th 799, 848.)

Here, there was evidence that defendant had been drinking. He had beer at Annette’s home and more than one drink at the bar. What was missing was any “evidence of the effect of defendant’s alcohol consumption on his state of mind.” (People v. Marshall, supra, 13 Cal.4th at p. 848, original italics.) Sheila testified everyone was acting normal and no one was drunk. “The fact that a defendant has been drinking, without evidence that he became intoxicated thereby, provides no basis for an instruction on intoxication. [Citations.]” (People v. Sanchez (1982) 131 Cal.App.3d 718, 735.)

Accident may be a defense to murder. Persons are not criminally liable “who committed the act or made the omission charged through misfortune or by accident, when it appears there was no evil design, intention, or culpable negligence.” (Pen. Code, § 26.) A homicide may be excusable when committed “by accident or misfortune” under the circumstances set forth in Penal Code section 195.

“‘When a defense is one that negates proof of an element of the charged offense, the defendant need only raise a reasonable doubt of the existence of that fact.’ [Citations.] The claim that a homicide was ‘committed by accident and misfortune’ (§ 195), is such a defense because it ‘amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime.’ [Citations.]” (People v. Bohana (2000) 84 Cal.App.4th 360, 370.) While a trial court has the duty to instruct on defenses on which defendant relies or which are not inconsistent with his theory of the case, a trial court has no duty to instruct on a defense that is not supported by substantial evidence. (Ibid.)

The trial court rejected the proposed instruction on accident because there was no evidence of an accidental shooting, “none, zilch.” While there was evidence that a gun similar to the murder weapon could accidentally misfire in certain situations, there was no evidence that this gun actually did misfire or that those conditions were present. As the trial court stated, a theory of accidental shooting was “purely speculation.” Defendant contends that since there was evidence he had displayed the weapon “in a mocking way,” it was as likely the shooting was accidental as intentional. Not so. There was, as recounted above, evidence of an intentional shooting, but no evidence of accident (such as defendant claiming at the scene it was an accident). Since there was no evidence of an accidental shooting, the court did not err in refusing the instruction. (People v. Tanner (1979) 95 Cal.App.3d 948, 958; People v. Mathews (1979) 91 Cal.App.3d 1018, 1026.)

III. Upper Term on Count Two

Relying on Cunningham v. California (2007) __ U.S. __ [166 L.Ed.2d 856], defendant contends the trial court violated his Sixth Amendment right to trial by imposing the upper term on count two based on a factor not tried to the jury. The court imposed the upper term of three years, citing as its reason defendant’s criminal record and conduct. The probation report showed the 28-year-old defendant had an extensive criminal history, spanning almost 15 years. He had prior convictions as an adult for possession of controlled substances for sale, vehicle theft, flight from police, disturbing the peace, and battery (twice), as well as several juvenile adjudications.

There was no error. “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.]” (People v. Black (2007) 41 Cal.4th 799, 818.) The prior conviction, or recidivist, exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citations.]” (Id. at p. 819.) Defendant was not entitled to a jury trial on the aggravating factor of his recidivism.

DISPOSITION

The judgment is affirmed.

We concur: RAYE, Acting P.J., HULL, J.


Summaries of

People v. Toro

California Court of Appeals, Third District, Sacramento
Mar 10, 2008
No. C052467 (Cal. Ct. App. Mar. 10, 2008)
Case details for

People v. Toro

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOSEPH TORO, Defendant…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 10, 2008

Citations

No. C052467 (Cal. Ct. App. Mar. 10, 2008)