P. v. Bullette

Filed 11/21/07 P. v. Bullette CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Sabrina Y. Lane-Erwin, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant, Sonya Rochelle Bullette (hereafter defendant), guilty as charged of premeditated attempted murder in violation of Penal Code sections 664 and 187, subdivision (a)^[1](count 1), discharging a firearm from a vehicle in violation of section 12034, subdivision (c) (count 2), and robbery in violation of section 211 (count 3). The jury also found true the special allegations that defendant personally discharged a firearm, causing great bodily injury within the meaning of section 12022.53, subdivision (d), and personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court sentenced defendant to serve a term of life in prison on count 1, the attempted premeditated murder conviction, plus a term of 25 years to life on the firearm use enhancement.^[2]

Defendant contends in this appeal that the evidence is insufficient to support the jurys guilty verdicts on counts 1 and 2, and in any event the trial court did not properly instruct the jury on the charge alleged in count 2. Defendant also contends that the trial court erred when it allowed the prosecutor to introduce evidence of a statement made by the non-testifying codefendant and that the prosecutor improperly capitalized on that error. We conclude that defendants claims are meritless and will affirm the judgment.

FACTS

On September 20, 2003, defendant and her significant other, Michael Batchelor, spent the day in a motel room with Jeremy Price and Amy Rasmussen smoking methamphetamine. Defendant and Batchelor needed money to pay for another night at the motel so Price and Rasmussen arranged for them to sell methamphetamine to Jesse Lewis for $50. With defendant driving, Batchelor in the front passenger seat, and Price and Rasmussen in the backseat, the quartet went to Lewiss apartment to complete the transaction. Batchelor had a gun.

Rasmussen stayed in the car with defendant and Batchelor while Price went to Lewiss apartment. Lewis showed up at defendants car while Price was off looking for him. At defendants direction, Lewis got in the backseat of the car, and defendant drove off, leaving Price behind. Defendant and Batchelor got angry when Lewis said he did not want to pay $50 for the methamphetamine. Defendant pulled out a gun, and pointed it at Lewiss face, while Batchelor went through Lewiss pockets. Lewis gave Batchelor his wallet after defendant said something, the exact words Lewis could not recall, that made it clear that he was going to get shot if he did not have any money. Defendant drove off again after Batchelor took the gun and pointed it at Lewis. While driving defendant said, Lets take him to the alley, and when she got to the alley she said, Lets do him right here.

Defendant and Batchelor then changed places and Batchelor drove while defendant pointed the gun at Lewis. When defendant and Batchelor turned to look at another car that had pulled into the alley, Lewis jumped from defendants moving car. Defendant shot at Lewis and the bullet hit him in the lower back. The gun jammed when defendant tried to fire a second time. Batchelor drove away fast. According to Amy Rasmussen, Batchelor threw Lewiss wallet out the window and threw the gun into a culvert or storm drain. Rasmussen was crying and hysterical. Defendant threatened to hurt Rasmussen and her family if she told anyone what had happened. Batchelor drove to Rasmussens house. Price was at the house and asked defendant and Batchelor what had happened. Defendant said she had killed that Fing N, and had shot the mother fucker right between the ears.

The next day, a police officer found the gun after Amy Rasmussen showed him where Batchelor had discarded it. The gun had a live round in the magazine and a bullet stuck in the barrel. The police found an expended shell casing in the ashtray of defendants car. Later the police located defendant and Batchelor in a motel room registered to Jeremy Price. In a search of that room, the police found items consistent with the sale of drugs including a day planner that contained a list of drug weights, conversions from ounces to grams, and the street terms for those weights. In defendants purse, the police found small zip lock baggies. Defendant initially denied any knowledge of the shooting when the police questioned her. Eventually defendant acknowledged that the shooting had occurred, but she stated that Amy Rasmussen was the shooter.

At trial, defendant testified in her own defense, and stated, in pertinent part, that after she and Batchelor traded places in the car, she saw Lewis point a gun at Batchelor.^[3] Defendant believed that Lewis had shot Batchelor so she shot him when he got out of the car. Defendant denied that she and Batchelor had planned to rob Lewis or that Batchelor had actually done so.

Additional facts, pertinent to the issues defendant raises in this appeal, will be recounted below.

DISCUSSION

Defendant specifies two claims of error in this appeal, both of which she loosely describes as challenges to the sufficiency of the evidence. Closer examination reveals that both claims include other issues. In her first claim, defendant purports to challenge the sufficiency of the evidence to support the jurys verdict finding her guilty of attempted murder with premeditation and deliberation and contends that the witnesses all lacked credibility, but in any event the trial court made erroneous evidentiary rulings, which the prosecutor purportedly ignored.^[4] In her second claim of error, defendant challenges the sufficiency of the evidence to support the jurys verdict finding her guilty of discharging a firearm from a vehicle at a person outside the vehicle because the victim was leaping from the car, and therefore was an occupant of the vehicle at the time he was shot, and in any case the trial court did not properly instruct the jury on the elements of that crime. Defendants claims are all meritless, for reasons we now explain.

1.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT DEFENDANTS ATTEMPTED PREMEDITATED MURDER CONVICTION

Defendant contends that the evidence is insufficient to the support the jurys verdict finding her guilty of attempted murder with premeditation and deliberation, first because the victim, Jesse Lewis, steadfastly denied that he was trying to buy methamphetamine from defendant and Batchelor. Defendant also points out that Amy Rasmussen and Jeremy Price admitted they had been using methamphetamine during the 24 hours that preceded the shooting, a fact that defendant contends compromises not only their capacity to observe, but also their moral character. In addition, Price and Rasmussen were friends with the victim Jesse Lewis and therefore were biased against defendant.

The standard by which we review defendants claims is well known and frequently cited. In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] (People v. Kraft (2000) 23 Cal.4th 978, 1053.) It is equally well-settled that, Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] [Citation.] (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, quoting People v. Jones (1990) 51 Cal.3d 294, 314.)

Each of the facts defendant cites to challenge the credibility of the witnesses, and thus the sufficiency of the evidence, was brought out at trial and therefore was known to the jury. For example, the jury knew that Jesse Lewis and defendant were involved in a drug deal, despite Lewiss steadfast refusal to acknowledge that fact. The prosecutor even addressed that aspect of the case in closing argumentThis was a drug deal gone bad. You know that. You absolutely know that. Would Mr. Lewis admit that? No. Did Mr. Lewis lie to you about his drug use? Absolutely. I think thats true. Who knows why Mr. Lewis felt he had to lie to you about his drug use. You know what, its stupid that he lied to you about that, because its not important. I expect the defense to say to you [that] you must disregard everything Mr. Lewis says because he lied to you about being a drug user. The jury also knew that Lewis was friends with Price and Rasmussen because Lewis and Price both said so in their testimony, and they also knew that Price and Rasmussen had been using methamphetamine with defendant and Batchelor pretty much nonstop for the better part of two days because both Price and Rasmussen said as much when they testified. The jury obviously resolved the credibility issues against defendant, as evidenced by the jurys verdicts. Even if we were inclined to do so, we may not substitute our assessment of credibility for that of the jury. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) Defendants contrary claim notwithstanding, the evidence recounted above is sufficient to support the jurys verdict finding her guilty of the attempted premeditated murder of Jesse Lewis.

Defendant also points out that the trial court committed various errors in admitting and excluding evidence and that sloppiness was prejudicial because it vitiated the force . . . of testimony contradicting [defendant] on whether Lewis might have had a gun. Although defendant claims that the trial court excluded her statement to Batchelor, immediately after the shooting, that Lewis had a gun, the portion of the record defendant cites does not support her claim. The trial court did strike Batchelors statement to the police that he did not see Lewis with a gun, and admonished the jury to disregard the police officers testimony on that point. In closing argument the prosecutor stated that no one, including codefendant Batchelor, saw Lewis with a gun, and the trial court again admonished the jury to disregard the statement.

Assuming without actually deciding that defendants statement should have been admitted into evidence and that Batchelors statement should have been excluded, any error was harmless. The trial court clearly admonished the jury to disregard Batchelors statement. We must assume the jurors followed that admonishment, absent a contrary showing by defendant. (Weeks v. Angelone (2000) 528 U.S. 225, 234.) More importantly, defendant has not demonstrated that the purported errors were prejudicial. The erroneous admission or exclusion of evidence requires reversal of the judgment only if it is prejudicial. (See Evid. Code, 353, 354.) In this context, a miscarriage of justice occurs when this court is able to say, absent the error, it is reasonably probable the jury would have reached a result more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.) It is not reasonably probable the jury would have believed defendant and thus reached a result more favorable to her on the attempted murder charge if the jurors had heard that on the day of the shooting she told codefendant Batchelor that she thought Lewis had a gun. The jury would also have heard Amy Rasmussens testimony that she did not see Lewis with a gun, and the investigating police detectives testimony that when interviewed defendant initially denied any knowledge of the shooting and then eventually identified Rasmussen as the shooter.

2.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT CONVICTION FOR DISCHARGING FIREARM FROM A VEHICLE AT SOMEONE OUTSIDE THE VEHICLE

The jury found defendant guilty of violating section 12034, subdivision (c), by discharging a firearm from a vehicle at a person outside the vehicle. As the trial court instructed the jury, in order to find defendant guilty of that crime, the evidence had to show that defendant willfully and maliciously shot a firearm from a motor vehicle and that defendant shot the firearm at another person who was not in a motor vehicle. (See Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 968.)

Defendant contends that the evidence is insufficient to show that Lewis was outside the car when defendant fired the gun at him. According to the testimony of Lewis and Amy Rasmussen, Lewis jumped from the car and that is when defendant shot him. That testimony is sufficient to support the jurys verdict finding defendant guilty of violating section 12034, as alleged in count 2, defendants contrary claim notwithstanding.

Defendant also contends, according to the clear language of section 12034, subdivision (c), that the statute prohibits surprise attacks from inside a motor vehicle at someone outside the vehicle . . . . Nothing indicates the statute covers someone riding in the car with his assailant, who is shot as he exits the car in an attempt to cease being an occupant of the vehicle. To the extent defendant contends that the statute does not apply to the facts in this case, defendant simply is wrong. Section 12034 states clearly that it applies when a person willfully and maliciously discharges a firearm from a motor vehicle at another person other than an occupant of a motor vehicle . . . . Lewis had jumped from the car and therefore was not an occupant of a motor vehicle when defendant fired the gun and shot him. Under defendants interpretation, either the statute would not apply to a person who had ever been an occupant of the vehicle from which the gun is discharged or application of the statute would depend on the length of time a former occupant had been outside the vehicle. Neither interpretation is warranted by the statutory language. The critical fact is that the person fired on not be an occupant of the vehicle. The jury in this case could and did find that Lewis was outside the car, and not an occupant of the vehicle when defendant discharged the gun.

Finally, defendant argues that the trial court did not properly instruct the jury on this element of the crime because the jury instruction did not mirror the statutory language and use the phrase other than an occupant of a motor vehicle. The instruction, quoted above, requires that the person fired on was not in a motor vehicle. Although defendant apparently perceives a difference between the two phrasings, we see none. A person other than an occupant of a vehicle is someone who is not in a motor vehicle. The trial court correctly instructed the jury on the charge alleged in count 2 and we reject defendants contrary claim.

DISPOSTION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Gaut

J.

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^[1]All further statutory references are to the Penal Code unless otherwise indicated.

^[2]The trial court also sentenced defendant on the remaining counts and enhancements but either imposed those sentences to run concurrent to the life terms, or stayed execution of those sentences.

^[3]Defendant and Batchelor were tried together, but Batchelor did not testify at trial. He also is not a party to this appeal.

^[4]The caption that precedes defendants discussion also includes the assertion that defendant was under the influence of methamphetamine which negated both premeditation and intent to kill. Despite the caption, defendant does not address the assertion in her discussion, and therefore neither shall we.