Opinion
C077080
03-07-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LAVEL ZEIGLER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM040639)
Defendant appeals his convictions for a 2013 stabbing and a 2014 shooting. He contends (1) the trial court erred in denying his motion to bifurcate the cases because they were unrelated and did not contain cross-admissible evidence, (2) there was insufficient evidence he committed assault with a semiautomatic firearm, and (3) the trial court erred in not giving defendant's requested pinpoint jury instruction that reckless conduct alone cannot constitute assault with a firearm. We conclude (1) the trial court did not abuse its discretion in denying defendant's motion to bifurcate, (2) there was sufficient evidence to sustain the assault with a semiautomatic firearm conviction, and (3) the trial court properly rejected defendant's request for a pinpoint instruction because another instruction given already adequately informed the jury. We affirm the judgment.
FACTUAL BACKGROUND
2013 Stabbing
In May 2013, Joshua Hendon, Kevin Brazil, and Alexander Salas went to a bar in Chico. Hendon and defendant got into a "scuffle," and security officers at the bar ejected defendant from the bar. Defendant was wearing a red polo shirt and a gold cross necklace. One of the security officers, Jorge Martinez, testified he saw other security officers ejecting a man in a red shirt from the bar, and recognized the man as defendant, a regular patron at the bar. Another security officer, James Bender, testified he had ejected an African-American man wearing a red shirt. He later identified defendant as the man he ejected. Hendon and his friends left the bar at about 1:30 a.m. While they were waiting for a ride outside, defendant punched Hendon in the back. Hendon chased defendant to the end of the building when he heard defendant tell his friend, who was leaning on a vehicle, "Pop this nigga." Defendant's friend lifted his shirt and Hendon saw the handle of a gun, so he ran back toward the bar. Defendant got into a truck and left.
Police officer Michael Caldwell responded to a report of a stabbing at the bar. When he arrived, the security officers were applying pressure to a wound on Hendon's back. Caldwell observed a fresh wound one to two inches deep on Hendon's back. Bar employees gave Caldwell photographs of the persons who had gone into the bar that night that included defendant. Defendant was a regular customer, so they were familiar with him. The security officers identified defendant as the person they had earlier ejected from the bar for fighting. Caldwell also prepared a six-person photographic lineup that included defendant and Salas. The security officers identified defendant.
Dr. Levitt treated Hendon at the hospital for a one-half inch deep wound to his back. Hendon received eight staples to close the wound. Dr. Levitt opined a fist could have caused the wound, but that would be atypical. Dr. Thomas Resk, a forensic pathologist, reviewed the photographs of Hendon's wound and video of the confrontation and concluded the wound was a "straightforward stab wound with an element of blunt-force trauma."
2014 Shooting Incident
In January 2014, Carly Sims, John Lowe, Sean Lowe, Tina Acosta, and Christina Acosta were standing on the sidewalk outside the front entrance to Arabian Nights, a hookah bar in downtown Chico, when they heard a gunshot coming from the direction of a nearby restaurant, Tres Hombres. They did not see the shooter, but Sean immediately felt pain in his knee and realized he had been shot. Sean was transported to the hospital. The bullet wound caused part of Sean's knee to fracture and break. He underwent emergency surgery and was hospitalized for three days.
Around the same time, Jonathan Chesney, a bouncer at a nearby sports pub, saw "a scuffle" break out down the street toward his left, in the direction of Tres Hombres restaurant. He also noticed a large group of people were standing in front of the hookah bar to his right. The fight was between a group of five or six Hispanic or Asians and two African-Americans, one of whom was defendant. The fight involved people yelling and throwing punches. During the fight, one of the group of five or six grabbed defendant's jacket, resulting in the jacket being thrown on the ground. Defendant started running away, toward Chesney, and had his jacket torn off by the other man. He ran around the corner, and as he passed in front of Chesney, defendant grabbed keys from his back pocket and said, "I'll be back motherfuckers." A minute or two later, defendant reappeared from the alleyway to the south of Tres Hombres, brandishing a semiautomatic pistol. Chesney ducked back into the pub, closed the door, and then heard a gunshot. Before he closed the door, Chesney saw the group defendant had been fighting with walking back toward defendant. After hearing the gunshot, Chesney saw a person sitting on the sidewalk whom he understood had been shot. Chesney did not see anyone but defendant with a gun or any other type of weapon.
Officer Peter Durfee responded to the report of gunshots. Durfee found an expended nine-millimeter shell casing near an alley just south of Tres Hombres, and a black leather jacket just north of Arabian Nights. Detective Ben Love investigated the shooting. The description of the suspect matched defendant, and Love found photographs on defendant's social media accounts of him wearing a leather jacket similar to the one found at the scene. Love examined the jacket and noticed a red wire had been used to bind the cuff of the jacket; the social media photographs showed a red wire holding the cuff together. The jacket was tested for DNA, and found to have a mixture containing "all of [defendant's] DNA types for his DNA profile."
Detective Love also recovered video surveillance footage from the Arabian Night Hookah Lounge showing defendant running down the street, bumping into someone, and pulling something from his jacket. Defendant was wearing a red shirt. Love identified the person on the videotape as defendant wearing the red shirt. Chesney identified the person wearing the red shirt on the videotape, as the man he had seen brandishing the gun. No witnesses observed the actual shooting or saw anyone pointing a gun.
A criminalist determined the bullet found at the scene had been fired from an automatic or semiautomatic firearm, not a revolver.
PROCEDURAL HISTORY
The trial court granted the People's motion to consolidate the charges stemming from the 2013 stabbing and the 2014 shooting. An amended information charged defendant with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)--count 1), assault with a semiautomatic firearm (§ 245, subd. (b)--in count 2), possession of a firearm by a felon with prior felony convictions (§ 29800, subd. (a)(1)--count 3), and unlawful firearm activity (§ 29805--count 4). The information further alleged as to count 1, defendant personally used a knife (§ 12022, subd. (b)(1)), and as to count 2, defendant personally used a firearm (§ 12022.5) and personally inflicted great bodily injury upon Sean Lowe, not an accomplice (§ 12022.7, subd. (a)). The information also alleged as to counts 2, 3, and 4 that defendant was released from custody on bail or his own recognizance in the stabbing case, case No. CM039082. (§ 12022.1.)
Undesignated statutory references are to the Penal Code.
Defendant moved in limine to bifurcate count 1, the 2013 stabbing, from the other charges. Defendant argued though the charges were properly joined, the court had discretion to try them separately, particularly where a weak case might unfairly bolster a stronger case. At the hearing, defense counsel also claimed the "alleged cross-admissibility is suspect." The People argued the cases were the same class of crime, assaultive, the evidence in each was strong, and defendant's conduct in each was similar. The trial court denied the motion to bifurcate.
The jury found defendant guilty on all counts and found true the special allegations as to counts 1 and 2. Outside of the presence of the jury, defendant admitted incurring two prior felony convictions. In a bifurcated proceeding, the court found defendant in violation of probation in case No. SCR8554, and found the on-bail enhancement allegation true.
The trial court denied probation and sentenced defendant to serve 25 years 8 months in prison as follows: the upper term of 9 years in prison on count 2, plus a consecutive 10 years for the firearm use and a consecutive 3 years for the infliction of great bodily injury; the upper term of 4 years, 3 years stayed, on count 1, consecutive, plus one year for the deadly weapon enhancement, stayed, the upper term of 3 years in prison on count 3, 2 years 4 months stayed consecutive to count 2, plus the 2-year on-bail enhancement; and the upper term of three years on count 4, stayed pursuant to section 654. The trial court ordered defendant to pay a $2,000 restitution fine (§ 1202.4) and a $2,000 parole revocation fine (§ 1202.45), stayed pending successful completion of parole. The trial court granted defendant 257 days of presentence custody credits.
DISCUSSION
I
Motion to Bifurcate
Defendant contends the trial court prejudicially erred in denying his motion to bifurcate the charges in the 2013 stabbing case from the 2014 shooting case because they did not contain cross-admissible evidence and the consolidation unfairly strengthened "two relatively weak cases."
" ' "[B]ecause consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by the law." ' [Citation.] 'Section 954 governs the issue of joinder of counts and it provides in pertinent part: "An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." [Citation.]' " (People v. Capistrano (2014) 59 Cal.4th 830, 848.) Here, assault with a deadly weapon and assault with a semiautomatic firearm are both assaultive crimes, and share common characteristics. " 'Because the charges were properly joined under section 954, "defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying defendant's severance motion." ' [Citation.] That is, defendant must demonstrate the denial of his [or her] motion exceeded the bounds of reason. [Citation.]" (Capistrano, supra, 59 Cal.4th at p. 848.)
" ' "The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial." ' [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns into a capital case. [Citations.]" (People v. Sandoval (1992) 4 Cal.4th 155, 172-173.)
The trial court did not abuse its discretion in denying defendant's motion to bifurcate. As to the issue of cross-admissibility, "[w]hen, as here, crimes of the same class are charged together, 'evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together . . . .' (§ 954.1.)" (People v. Cook (2006) 39 Cal.4th 566, 581.) Even if we assume the evidence was not cross-admissible, absence of cross-admissibility is, standing alone, insufficient to establish an abuse of discretion in failing to sever the charges; rather, it is one factor to be weighed against the benefits of joinder. (People v. Soper (2009) 45 Cal.4th 759, 779-780 (Soper).)
Neither offense here was a capital offense, and the prosecution did not seek joinder to convert the case into a capital case. (Soper, supra, 45 Cal.4th at p. 780.) Nor was either offense unusually likely to inflame the jury against the defendant each involved an assault committed with a deadly weapon following an altercation. They were similar in nature and degree of egregiousness. (Ibid.) Lastly, there was no risk of a "spillover effect" from, as defendant claims, joining two weak cases together. The evidence in each of these cases was of similar strength, and each was sufficiently strong on its own to sustain a conviction. Although much of the evidence was circumstantial, in each case defendant was identified by eyewitnesses and on videotape. In each case, defendant was linked to the clothing worn by the perpetrator. Also in each case, defendant was involved in an altercation, left the scene, and returned to commit an assault. "In any event, as between any two charges, it always is possible to point to individual aspects of one case and argue that one is stronger than the other. A mere imbalance in the evidence, however, will not indicate a risk of prejudicial 'spillover effect,' militating against the benefits of joinder and warranting severance of properly joined charges. [Citation.] Furthermore, the benefits of joinder are not outweighed--and severance is not required--merely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried. [Citations.]" (Id. at p. 781.) We conclude the trial court did not abuse its discretion in denying defendant's motion to bifurcate the charges.
II
Sufficiency of the Evidence
Defendant contends there was insufficient evidence he committed an assault with a semiautomatic firearm. Specifically defendant claims there was insufficient evidence to find he should have known his act "would directly and probably result in the application of force to someone."
To establish assault with a semiautomatic firearm, the prosecution was required to prove:
1. The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and
4. When the defendant acted, he had the present ability to apply force with a semiautomatic firearm to a person. (§ 245, subd. (b); CALCRIM No. 875.)
" 'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) The standard of review is the same in cases in which the prosecution relies on circumstantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) " ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " ' " (People v. Cravens (2012) 53 Cal.4th 500, 507-508.) Thus, "[w]hen presented with two reasonable inferences that can be drawn from the evidence, we must uphold the inference that supports the conviction." (People v. Shamblin (2015) 236 Cal.App.4th 1, 12.) Stated slightly differently, substantial evidence review requires that we draw all reasonable inferences in support of the judgment. (People v. Mackey (2015) 233 Cal.App.4th 32, 121.) A defendant's conviction must "stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (Cravens, at p. 508.)
In an attempt to show there was insufficient evidence, defendant delineates a variety of pieces of evidence the prosecution did not put forward, such as there was no evidence showing the manner in which defendant discharged the gun, showing the gun was aimed at anyone in particular, and showing the bullet traveled in a straight line. Defendant's focus is misplaced. The fact certain evidence was not presented does not mean there was not sufficient evidence to sustain the conviction.
Here, the evidence established defendant had a fight with a group of other men. As he fled, he said, "I will be back, motherfuckers." When defendant reappeared, he was brandishing a semiautomatic handgun. No one else in the area was seen with a weapon. Defendant was facing toward the Arabian Nights Hookah Lounge. A large group was standing in front of the lounge. The men defendant had been fighting with were also outside, between the hookah lounge and defendant, and they were coming toward him. There was a single gunshot and immediately Sean felt pain in his leg, the result of a gunshot wound. A single spent shell casing from a nine-millimeter semiautomatic handgun was found near the location where defendant was seen brandishing the gun. It was reasonable for the jury to infer, as Chesney did, defendant's statement as he was leaving the scene was a threat to return and do further violence against the men he was fighting. It was reasonable for the jury to infer defendant, the only person seen with a gun, was the person who fired the single shot that resulted in Sean's injury. It was also reasonable for the jury to infer defendant was shooting at the men he had been fighting with that put the large group in front of the Arabian Nights Hookah Lounge also in the line of fire, and the act of shooting in the direction of that many people on the street "would lead a reasonable person to realize that his [or her] act by its nature would directly and probably result in the application of force to someone." Accordingly, we conclude there is sufficient evidence to sustain defendant's conviction for assault with a semiautomatic firearm.
III
Jury Instructions
Defendant contends the trial court erred in failing to give a requested "pinpoint" instruction that "reckless conduct alone cannot constitute an assault with a semiautomatic firearm." He contends in refusing this instruction, the trial court did not follow controlling Supreme Court precedent that "mere recklessness or criminal negligence cannot suffice to prove an assault."
" 'A criminal defendant is entitled, on request, to instructions that pinpoint the theory of the defense case.' (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) Specifically, a criminal defendant 'is entitled to an instruction that focuses the jury's attention on facts relevant to its determination of the existence of reasonable doubt. . . .' (People v. Johnson (1992) 3 Cal.4th 1183, 1230.) But where standard instructions fully and adequately advise the jury upon a particular issue, a pinpoint instruction on that point is properly refused." (People v. Canizalez (2011) 197 Cal.App.4th 832, 856-857.) Defendant requested a pinpoint instruction that read, "You may not convict the defendant of assault based on reckless conduct alone, even if that conduct results in injury." Defense counsel argued there was an inference that if defendant had shot into a crowd, without an intent to hit anyone, it was probably only gross negligence or recklessness, not assault. He also argued there was a danger CALCRIM No. 875 would mislead the jury into thinking assault had been proven, simply by a shot being fired and some likelihood based on the number of people that someone would be hit. The prosecution argued the law was adequately explained in CALCRIM No. 875. The trial court found the portion of the instruction that informed the jury, "[w]hen the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone," "covers the concerns expressed," and denied the requested pinpoint instruction.
CALCRIM No. 875 instructs the jury as follows: "The elements for assault with a firearm in violation of Penal Code section 245, subdivision (b) include the following: 1. The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; 2. The defendant did that act willfully; 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and 4. When the defendant acted, he had the present ability to apply forces with a semi-automatic firearm to a person." (§ 245, subd. (b); CALCRIM No. 875.) --------
"[A] defendant is only guilty of assault if he [or she] intends to commit an act 'which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences.' [Citation.] Logically, a defendant cannot have such an intent unless he [or she] actually knows those facts sufficient to establish that his [or her] act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. [Citation.] In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his [or her] conduct. He [or she] may not be convicted based on facts he [or she] did not know but should have known. He [or she], however, need not be subjectively aware of the risk that a battery might occur." (People v. Williams (2001) 26 Cal.4th 779, 787-788.) "Mere recklessness or criminal negligence is still not enough [citation] because a jury cannot find a defendant guilty of assault based on facts he [or she] should have known but did not know [citation]." (Id. at p. 788.) "[A]assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.)
Here, CALCRIM No. 875 advised the jury that when defendant acted he had to be "aware of facts that would lead a reasonable person to realize his act by its nature would directly and probably result in the application of force." The instruction was entirely consistent with the language of People v. Williams, that defendant had to have actual knowledge of the facts and could not be convicted based on facts he should have known but did not. The instructions given adequately informed the jury that recklessness or criminal negligence was insufficient to convict defendant of assault with a semiautomatic firearm. Accordingly, the "requested pinpoint instruction was therefore redundant, unnecessary and properly rejected." (People v. Canizalez, supra, 197 Cal.App.4th at p. 857.)
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
RENNER, J.