P. v. Brown

 

 

 

 

 

 

 

 

Filed 11/12/13  P. v. Brown CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.

 

 

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   STEVEN BROWN, JR. et al.,                           Defendants and Appellants.

C067117   (Super. Ct. No. 09F09210)

 

 

 

 

            In this
unprovoked and random drive-by shooting with a semiautomatic handgun, the two
teenage defendants both testified that the other one was the shooter.  A jury convicted 17-year-old Denzel Demar Crisp,
the passenger, of discharging a firearm from a motor vehicle and href="http://www.fearnotlaw.com/">assault with a semiautomatic firearm, but
failed to reach a verdict on the attempted murder charge.  The related gun and great bodily injury enhancements
were found to be true.  Eighteen-year-old
Steven Brown, Jr., the driver, was convicted of assault with a semiautomatic
firearm, knowingly permitting another person to discharge a firearm from his
vehicle, and carrying a concealed firearm. 
The related firearm enhancement was also found to be true.

            Neither boy
had a prior record.  Whereas the trial
court sentenced Crisp to state prison for an aggregate term of 30 years to
life, it sentenced Brown to seven years eight months.  On appeal, defendants challenge several jury
instructions, the sufficiency of the evidence, and, in Crisp’s case, the
constitutionality of his sentence.  We
affirm.

FACTS

            On the
night of December 18, 2009,
defendants had difficulty finding a party hosted by Jennifer Ly.  Thinking they had found it, they walked up to
a group of people standing outside a residence at what turned out to be a
family 21st birthday party.  They were
told there was no Jennifer at the party and they left.  One guest testified that Brown appeared to be
“[a] little angry.”  No one else,
including defendants, testified there was any altercation, any unkind or
agitated interaction, or any hard feelings. 
Defendants were simply at the wrong party.

            They got
back in their car.  There is some dispute
as to the route they then took, but they ended up in front of the same party
with their lights off, and as the driver slowed down, witnesses saw an arm
stick out of the passenger window and heard two or three gunshots.  Andrew Tapalla had just arrived at the party
when he was shot in the buttocks. 
Emergency personnel took him to the hospital, where he was given
morphine to control the pain, but the bullet was not removed.  He missed four days of work.

            Defendants
fled the scene.  Shocked that Crisp had
just fired a gun out of the window of his car, Brown testified he asked Crisp,
“What the fuck are you doing?”  He did
not know Crisp had fired into a group of people or that anyone had been
hit.  He planned to take Crisp home.  Crisp, who testified that it was he who was
shocked that Brown reached in front of him to shoot out of the passenger
window, claimed they had no conversation at all.  Both defendants testified it was not their
gun, they had never shot a gun before, and they did not shoot it at the group
of partygoers after they left.

            Several
witnesses testified that someone fired the shots from the passenger side of a
Ford Mustang.  At least two witnesses
testified they saw an arm sticking out of the window, and one testified it was
out at least as far as his elbow.

            Brown
pulled into a gasoline station with the police in hot pursuit.  He testified that after he parked he asked
Crisp to hand him the gun because he was afraid of what Crisp would do with
it.  He planned to turn it over to the
police.  Although he testified he had
never owned or used a gun before, he saw a small button on the bottom of the
gun, depressed it, and removed the magazine. 
But he then reloaded the gun, placed it in his waistband, and got out of
the car.

            A police
officer testified that he asked Brown if he had a gun, and Brown shook his head
to indicate he did not.  Brown denied the
police officer had asked him.  Rather,
according to Brown, the police officers threw him against a police car, banged
his head into the car, and yelled at him. 
In the process, the gun fell from his left pant leg to the ground.  Officers found a .25-caliber spent cartridge
casing fired by the gun retrieved from Brown in the space between the center
console and the front passenger seat.

            Crisp testified
he did not know Brown was armed that night until he saw him pull a gun out of
the pocket of his peacoat.  Because the
night was so cold, he asked Brown if he could borrow some gloves.  He testified that he wore the gloves all
night, including while he was texting Jennifer and his mother.

            A
criminalist testified that both Brown and Crisp tested positive for gunshot
residue.  From the testing he conducted,
the criminalist found more on Crisp’s hand than on Brown’s, but he did not do a
complete reading of Brown’s sample. 
Based on the gunshot residue evidence, it could not be determined who had
fired the gun.

            Both
defendants appeal.

DISCUSSION

I.

            Defendant
Crisp contends the trial court erred in instructing the jury, pursuant to
CALCRIM No. 361, that it could consider a defendant’s failure to explain or
deny adverse evidence.  “ ‘It is an
elementary principle of law that before a jury can be instructed that it may
draw a particular inference, evidence must appear in the record which, if
believed by the jury, will support the suggested inference [citation].’ ”  (People v.
Saddler (1979) 24 Cal.3d 671, 681 (Saddler).)  The Supreme Court in Saddler provides three exemplars of the type of testimony that justifies
highlighting a defendant’s failure to explain or deny “any fact of evidence
that was within the scope of relevant cross-examination.”  (Id.
at p. 682.)

            “Giving of
the instruction was upheld in People v.
Ing [(1967)] 65 Cal.2d 603, where the
defendant took the stand and denied committing three charged rapes but failed
to mention or refer to uncharged offenses which the court had determined were
relevant to show common scheme or plan. 
In People v. >Perez [(1967)] 65 Cal.2d 615,
unexplained offenses (two charged robberies and an uncharged robbery) were held
within the scope of proper cross-examination and the instruction appropriate
when the defendant testified and presented an alibi as to only two of the four
charged robberies.  In >People v. Thornton [(1974)] 11 Cal.3d 738, the instruction was again held to
be properly given when the defendant testified and denied committing one charge
of rape but did not testify concerning the two uncharged sexual assaults which
had been admitted as relevant to the issue of identity.”  (Saddler,
supra, 24 Cal.3d at p. 681.)

            In each of
these cases, the defendant’s failure to explain or deny his involvement in
some, but not all, of the charged offenses left a blatant hole in his defense
and certainly justified asking the jury to consider the failure and to
determine what effect it would have on the assessment of his credibility and,
indeed, his defense.  But these exemplars
stand in stark contrast to the equivocation and dissembling of the young,
frightened teenager here.

            The Supreme
Court also reminds us “a contradiction is not a failure to explain or deny,”
and there must be facts or evidence within the defendant’s knowledge that he
does not explain or deny.  (>Saddler, supra, 24 Cal.3d at p. 682.) 
But this is where the distinction gets fuzzy.  The test for giving the instruction is “not
whether the defendant’s testimony is believable.”  (People
v. Kondor (1988) 200 Cal.App.3d 52, 57 (Kondor).)  “ â€˜[CALCRIM No. 361] is unwarranted when
a defendant explains or denies matters within his or her knowledge, no matter
how improbable that explanation may appear.’ 
[Citation.]”  (>People v. Lamer (2003) 110 Cal.App.4th
1463, 1469 (Lamer).)

            Thus, a
defendant’s unbelievable and improbable explanations do not warrant the
instruction.  On the other hand, as we
explained in People v. Mask (1986) 188 Cal.App.3d
450, “if the defendant tenders an explanation which, while superficially
accounting for his activities, nevertheless seems bizarre or implausible, the
inquiry whether he reasonably should have known about circumstances claimed to
be outside his knowledge is a credibility question for resolution by the
jury.”  (Id. at p. 455.)  To render
the analysis even more squishy, “[i]t is entirely proper for a jury, during its
deliberations, to consider logical gaps
in the defense case, and the jury is reminded of this fact by the instruction
at issue.”  (People v. Redmond (1981) 29 Cal.3d 904, 911, italics added.)

            Applying
these cases to Crisp’s testimony leaves us in a bit of a quandary.  Do his explanations qualify as merely
improbable and unbelievable or as bizarre and implausible?  It goes without saying that his explanations
lack clarity.  But to struggle to pigeonhole
them as improbable rather than implausible, or unbelievable rather than bizarre,
is an unnecessary semantic exercise when the error in giving the instruction in
this case, if any, is harmless.  (>People v. Watson (1956) 46 Cal.2d 818,
836.)

            “[R]eversal
is required only when it is reasonably probable a more favorable result would
have been reached had the instruction been omitted.”  (Kondor,
supra, 200 Cal.App.3d at p.
57.)  By its terms, CALCRIM No. 361, like
its predecessor CALJIC No. 2.62, “does not direct the jury to draw an adverse
inference.  It applies >only if the jury finds that the defendant
failed to explain or deny evidence. 
It contains other portions favorable to the defense (suggesting when it
would be unreasonable to draw the inference; and cautioning that the failure to
deny or explain evidence does not create a presumption of guilt, or by itself
warrant an inference of guilt, nor relieve the prosecution of the burden of
proving every essential element of the crime beyond a reasonable doubt).”  (People
v. Ballard (1991) 1 Cal.App.4th 752, 756, italics added; see >Lamer, supra, 110 Cal.App.4th at p. 1472.)

            It is
appropriate, particularly on facts such as these, that where Crisp’s
explanations were subject to interpretation, the jury was allowed to make or
reject any inference it might have drawn from his explanations.  If, as Crisp asserts, his explanations
satisfied the jurors, they were at liberty to reject any adverse
inference.  Moreover, whatever
equivocation they spotted in his answers during cross-examination paled in
significance to the strength of the prosecution’s case against him.

            Two
eyewitnesses testified that they saw an arm extended out of the window and one
of them reported that it was out of the window at least as far as his elbow,
thereby contradicting defendant Crisp’s testimony that it was Brown, the
driver, who fired the gun out the passenger’s window.  This testimony, coupled with the significant
amount of gunshot residue found on the back of Crisp’s hand, and contrary to
his testimony that he was wearing gloves the entire night, corroborated the
eyewitness testimony.  We therefore
conclude that it is not reasonably probable defendant Crisp would have obtained
a more favorable outcome even if the instruction had not been given.href="#_ftn1" name="_ftnref1" title="">[1]  Reversal is not required.

II

            Brown
complains the trial court deprived him of the opportunity to prove the essence
of his defense by refusing to instruct the jury on necessity; that is, that he
averted a potential greater harm by taking the gun away from Crisp.  Whether rooted in the href="http://www.mcmillanlaw.com/">Sixth Amendment rights to trial by jury
and compulsory process, or in the due process clause of the Fourteenth
Amendment, the United States Constitution guarantees a criminal defendant’s
right to have the jury instructed on the defense theory of the case, and any
doubts concerning the sufficiency or credibility of the evidence needed to
warrant the instruction should be resolved in favor of the defendant.  (Crane
v. Kentucky (1986) 476 U.S. 683, 690-691 [90 L.Ed.2d 636]; >People v. Ratliff (1986) 41 Cal.3d 675,
694.)

            Brown
requested the trial court to instruct the jury on necessity as embodied in
CALCRIM No. 3403 as follows:

            “In order
to establish this defense, the defendant must prove that:

            “1.       (He/She) acted in an emergency to prevent
a significant bodily harm or evil to (himself/herself/[or] someone else);

            “2.       (He/She) had no adequate legal
alternative;

            “3.       The defendant’s acts did not create a
greater danger than the one avoided;

            “4.       When the defendant acted, (he/she)
actually believed that the act was necessary to prevent the threatened harm or
evil;

            “5.       A reasonable person would also have
believed that the act was necessary under the circumstances;

            “AND

            “6.       The defendant did not substantially
contribute to the emergency.

            “The
defendant has the burden of proving this defense by a preponderance of the
evidence.  This is a different standard
of proof than proof beyond a reasonable doubt. 
To meet the burden of proof by a preponderance of the evidence, the
defendant must prove that it is more likely than not that each of the six
listed items is true.”

            The court
refused to give the necessity instruction. 
The court explained:  “I did not
feel the circumstances in this matter rose to the type of emergency that’s
contemplated by that defense.  And for
that reason as well as the fact that I was giving the transitory possession
instruction, which I thought better probably captured sort of the defense’s
theory relative to Mr. Brown.”href="#_ftn2"
name="_ftnref2" title="">[2]

            The scope
of the necessity defense “ ‘is very limited and depends on the lack of a legal
alternative to committing the crime.  It
excuses criminal conduct if it is justified by a need to avoid an imminent
peril and there is no time to resort to the legal authorities or such resort
would be futile.’  [Citation.]”  (People
v. Verlinde (2002) 100 Cal.App.4th 1146, 1164.)  “As a matter of public policy, self-help by
lawbreaking and violence cannot be countenanced where the alleged danger is
merely speculative and the lawbreaker has made no attempt to enlist law
enforcement on his side.”  (>People v. Miceli (2002) 104 Cal.App.4th
256, 268.)

            Brown
insists he was shocked when Crisp pulled out a gun and shot at the partygoers
and thus he reasonably believed that Crisp might again act irrationally once
the police had surrounded them.  In his
account, he took possession of the gun to prevent Crisp from shooting
again.  Based on his subjective belief
and Crisp’s objectively dangerous behavior only minutes earlier, he contends he
was entitled to the necessity instruction.

            The Attorney
General argues that Brown’s purported justification is nothing but raw
speculation that Crisp would take aim at trained police officers who had him
surrounded or, even more speculatively, shoot Brown.  Moreover, the Attorney General points out
that Brown did not demonstrate he lacked other alternatives, such as throwing
the gun out the window or alerting law enforcement.  Instead, the police officer testified that
Brown denied having a gun, and it was only discovered when it fell from his
waistband and hit the ground.  At
sentencing the trial court expressed its belief, as the Attorney General does
now on appeal, that Brown substantially contributed to the alleged emergency
situation.  Indeed, the trial court
believed that he was the real instigator. 
In short, the Attorney General would have us affirm the trial court’s
decision to refuse the necessity instruction because Brown failed to present
substantial evidence of each of the six elements of the defense.

            The
Attorney General’s argument is compelling. 
But even if we were to decide that Brown’s theory of necessity was
speculative and objectively unreasonable, we would affirm the trial court’s
refusal on narrower grounds.  Giving
every benefit of doubt to defendant, as we must, we will assume that he honestly
and reasonably believed that Crisp remained armed and dangerous and that he
needed to disarm him to avert danger to the police officers and to
himself.  But Brown did not dispose of
the gun once he had disarmed his friend. 
His conduct after he took the gun undermined any legitimate claim to a
necessity defense.

            Brown
testified he had never handled a gun before the night of the shooting.  Yet once he had possession of the gun, he
noticed a button on the bottom, depressed it, and thereby released the
magazine.  By then the gun was disabled
and any possible emergency had vanished. 
But he did not rid himself of the gun or the ammunition.  Rather, he reloaded it and armed himself by
putting the gun in his waistband.  Once
ordered out of the car, he did not turn over the gun or even acknowledge that
he had one.

            The jury
convicted Brown of three offenses, but the defense of necessity applied to only
one—carrying a concealed firearm.  Brown
committed that offense when he reloaded the magazine, put the gun in his
waistband, and got out of the car with the gun concealed.  None of the arguments he makes on appeal
address those crucial minutes.  Whether
or not Brown averted a greater harm by disarming Crisp is simply not the
dispositive question, for it was not the disarming that constituted the
offense, but rather when he armed himself with the gun by hiding it in his
waistband.  The trial court did not err
by refusing to instruct on the defense of necessity because there was no
necessity; that is, there was no emergency when he concealed the gun.

III

            Brown also
contends the trial court erred by instructing the jury that if it found he
attempted to hide evidence, “that conduct may show that he was aware of his
guilt.”  (CALCRIM No. 371.)  He complains there was no evidence that he
made any efforts to suppress or hide evidence, and therefore, there is no
logical inference of a consciousness of guilt that is not sheer
conjecture.  His argument is based solely
on his version of the facts.  The record
belies his claim of instructional error.

            As we
recounted above, Brown testified he took the magazine out of the gun and then
reinserted it before he put it in his waistband.  He insists that he did not deny having a gun;
he simply could not answer because the police were slamming his head into a
car.  It was the jury’s prerogative to
believe his account or that of the police officer who testified that when asked
if he had a gun, he indicated he did not by shaking his head.  But on appeal, we certainly are not at
liberty to reject the circumstantial evidence that he was hiding evidence by
putting the gun in his waistband and failing to turn it over to the
police.  That evidence was sufficient to
justify the trial court’s instruction to the jury.

IV

            Crisp
argues there is insufficient evidence to support the jury’s finding that the
victim sustained great bodily injury.  He
contends the victim suffered only minor or moderate harm since he did not
require surgery, he was released from the hospital within a few hours with some
painkillers, he only missed a few days of work, and, although he limped for a
short time, he fully recovered.  In his
view, the injury was neither significant nor substantial within the meaning of
Penal Code section 12022.7.  We disagree.

            “It is well
settled that the determination of great bodily injury is essentially a question
of fact, not of law.  ‘ “Whether the harm
resulting to the victim . . . constitutes great bodily injury is a question of
fact for the jury.  [Citation.]  If there is sufficient evidence to sustain
the jury’s finding of great bodily injury, [the appellate court is] bound to
accept it, even though the circumstances might reasonably be reconciled with a
contrary finding.” ’  [Citation.]”  (People
v. Escobar (1992) 3 Cal.4th 740, 750.) 
The injury “need not meet any particular standard for severity or
duration, but need only be ‘a substantial injury beyond that inherent in the offense itself[.]’  [Citation.]” 
(People v. Le (2006) 137
Cal.App.4th 54, 59.)

            Defendant
cites by way of example cases with far more serious injuries than suffered by
the victim here.  (See, e.g., >People v. Cross (2008) 45 Cal.4th 58,
63; People v. Wolcott (1983) 34
Cal.3d 92, 107.)  By contrast, the
Attorney General relies on cases where only abrasion, lacerations, and bruising
constituted great bodily injury.  (See,
e.g., People v. Sanchez (1982) 131
Cal.App.3d 718, 733; People v. Bustos
(1994) 23 Cal.App.4th 1747, 1755.) 
The cases demonstrate there is a wide spectrum of injuries that may
constitute great bodily injury, and it is up to the jury to make that
determination.

            Here there
is substantial evidence to support the jury’s finding.  While the victim was lucky to have escaped
grave injury, even death, his injury can hardly be characterized as
insignificant or trivial.  Indeed, it is
hard to imagine that anyone who has been shot and had a bullet lodged in his
body did not sustain great bodily injury. 
In any event, he testified he suffered terrific pain, was treated at the
hospital, required morphine, limped, and missed work for several days.  The jury could reasonably conclude on this
evidence the injury was significant and substantial.

V

            Crisp, who
was 17 years old and had no prior offenses when he shot the victim, argues that
his 30-years-to-life sentence was cruel and unusual punishment under both the
federal and state Constitutions.  We
agree with Crisp that the Attorney General’s analogies to lengthy sentences for
three strike adult recidivists are inapposite.  (Lockyer
v. Andrade (2003) 538 U.S. 63 [155 L.Ed.2d 144] and Ewing v. California (2003) 538 U.S. 11 [155 L.Ed.2d 108].)  Nevertheless, he fails, under relevant
authority, to demonstrate that the sentence, though lengthy, is “grossly
disproportionate” under the federal Constitution (People v. Em (2009) 171 Cal.App.4th 964, 977), nor does it “shock[]
the conscience” and “offend[] fundamental notions of human dignity” (>In re Lynch (1972) 8 Cal.3d 410,
424 (Lynch)).

            Crisp
repeats many of the compelling factual and legal arguments he made at
sentencing.  Witnesses at trial had
attested to his character as a polite, conscientious student, whom they had
never known to cause trouble, react in anger, or show any sort of temper.  Defense counsel’s statement in mitigation
contained numerous letters on his behalf from family members, family friends,
teachers, and clergy.  Moreover, he
demonstrated exemplary conduct in juvenile hall, obtained his high school
diploma, and continued to take college courses. 
He certainly did not fit the profile of a typical young gangster.

            While
acknowledging this young man’s potential, we also acknowledge his immaturity,
his susceptibility to peer pressure, and his underdeveloped sense of
responsibility.  Crisp points to the
emerging trends in the United States and California Supreme Courts to
incorporate these vulnerabilities typically found in young brains in assessing
the culpability of children.  (>Roper v. Simmons (2005) 543 U.S. 551,
568 [161 L.Ed.2d 1]; Graham v.
Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825] (Graham); People v. Caballero
(2012) 55 Cal.4th 262, 267-268 (Caballero).)  Perhaps the Attorney General reads these
cases too narrowly and the logic of the emerging jurisprudence is broader than
capital or life-without-the-possibility-of-parole cases.  We have no reason to quarrel with Crisp’s
understanding of the evolution of the law or his account of his personal
attributes and the aberrational quality of his random shooting.  But he goes too far when he equates a
30-years-to-life term to a death sentence, life without the possibility of
parole, or a sentence that exceeds a juvenile’s life expectancy.  Having embraced the basic science that young
brains are not fully developed, both the United States and California Supreme
Courts have shunned the notion that a child offender is incorrigible and
irredeemable.  As a consequence,
sentences that deprive them at the time of sentencing of a meaningful
opportunity at any time in the future to demonstrate their rehabilitation and
fitness to reenter society are a violation of the Eighth Amendment’s
prohibition of cruel and unusual punishment.

            Crisp,
however, has not been denied the opportunity to demonstrate rehabilitation in
the future.  Although a 30-years-to-life
term is long, it is not permanent. 
Crisp, unlike his counterparts in Graham,
Miller v. Alabama (2012) 567 U.S. ___
[183 L.Ed.2d 407, 132 S.Ct. 2455], and Caballero,
will have a meaningful opportunity in the future to demonstrate his
rehabilitation and his fitness to reenter society.  The recent evolution in the law does not
assist him.

            Moreover,
we must remind him that we are neither the Legislature nor the sentencing
court.  “[I]n our tripartite system of
government it is the function of the legislative branch to define crimes and
prescribe punishments, and . . . such questions are in the first instance for
the judgment of the Legislature alone. 
[Citations.]”  (>Lynch, supra, 8 Cal.3d at p. 414.) 
The trial court presided over the trial and heard all the witnesses
testify, including those who spoke on behalf of Crisp.

            Thus, we
cannot supplant a sentence authorized by the Legislature and applied by the
court with our own notion of what Crisp deserves or whether this sentence is a
disservice to his community and society at large.  Our role is exceedingly narrow in determining
whether the 30-years-to-life term is grossly disproportionate, shocks the
conscience, or offends fundamental notions of human dignity.  With those concepts as the bar, we simply
cannot say that a lengthy sentence for a drive-by shooter, who but for grace or
luck or divine intervention could have killed the victim or others standing
nearby, is cruel and unusual punishment. 
Indeed, the victim was shot, suffered pain, required medication, and
missed work.  We reject Crisp’s
invitation to find his sentence grossly disproportionate because his victim
recovered and thereby to benefit him because his victim was lucky enough to
survive.  Crisp fails to sustain his
considerably heavy burden.

DISPOSITION

            The
judgments are affirmed.

 

 

 

                                                                                                    RAYE                     , P. J.

 

 

 

We concur:

 

 

 

               HULL                      , J.

 

 

 

               MAURO                  ,
J.