P. v. Gear

Filed 8/8/07 P. v. Gear 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

----

A jury convicted defendant Jedison Orlando Gear of attempted voluntary manslaughter of William Hardman (Pen. Code, 192, 664; count one)^[1]as a lesser included offense of attempted murder ( 187, subd. (a), 664), assault with a semiautomatic firearm of Hardman ( 245, subd. (b); count two), attempted murder of Surinder Singh ( 187, subd. (a), 664; count three), assault with a semiautomatic firearm of Singh ( 245, subd. (b); count four), and second degree robbery of Singh ( 211, 212.5, subd. (c); count five). The jury found that defendant personally used a firearm ( 12022.5, subd. (a)) in the commission of counts one, two and four; personally inflicted great bodily injury on Hardman ( 12022.7, subd. (b)) in the commission of counts one and two; and personally used, and intentionally and personally discharged, a firearm causing great bodily injury of Singh ( 12022.53, subds. (b)-(d)) in the commission of counts three and five. Defendant was sentenced to state prison for a determinate term of 14 years (nine years on count three, plus two years on count two, plus three years on count twos enhancements), plus a consecutive indeterminate term of 25 years to life for the firearm enhancements on count three.

On appeal, defendant contends there was insufficient evidence of his identity as the perpetrator of the offenses against Singh. We shall affirm the judgment.

FACTS

Shooting of William Hardman

William Hardman moved from Southern California to Del Paso Heights in July 2003. Upon moving, Hardman became close friends with fellow members of the Crips street gang including Brian Menefee, Lamont West and defendant, whose street name was Six.

Toward the end of September 2003, Hardmans close friendship with defendant began to change. They began arguing over petty argument, and it seemed to Hardman that defendant didnt give a care about him.

On the evening of October 5, 2003, defendant, Hardman, Menefee and West were together in front of an abandoned house. Defendant and Hardman argued. The four men were sitting in a circle with Shaquita Haywood, who until a few days before had been Hardmans girlfriend. Defendant put his feet on Haywoods leg. Hardman knocked them off and said to defendant, Get your feet off my girls leg. Defendant responded, That aint your girl. Hardman again told defendant to keep his feet off [Hardmans] girls leg, and defendant called Hardman a ho. Hardman became angry and challenged defendant to a fight. Defendant did not want to fight, so Hardman called him a bitch. Defendant walked away, in the direction where Matthew Harrison lived.

Hardman and West telephoned defendant on his cell phone and told him to hurry back so that they could smoke the marijuana blunt they had rolled before he left. Defendant did not return promptly so Hardman and West smoked the blunt. When defendant later returned, he was kind of upset and angry because the blunt had been smoked in his absence. He walked off a second time, again in the direction of where Harrison lived.

Hardman, Menefee and West walked down several streets, spotted defendant, and called out his name. When the foursome reunited, defendant had his hand in the pocket of his sweater. Hardman asked defendant, Whats up homey? Hardman looked away, heard gunfire, looked back, heard defendant ask, Who you calling a bitch now, and saw him fire two shots at the ground.^[2] Defendant then fired a third shot that hit Hardman in the ankle, although he did not realize it at the time due to his intoxicated state. Hardman started walking but soon found himself spinning in the air. He came down on his side or hip, got back up, and then walked until he stood facing a wall. Hardman then just stood there as [defendant] shot at [him]. He heard about two more shots at that time, and he saw bullets sparking off the wall. Defendant again asked Hardman, Whos the bitch?

At that point Hardman could tell that he had been shot, and he found [himself] on the ground. When he tried to raise[] up, he found that the only thing he could raise was his neck. Hardman told a responding police officer, I cant feel my lower legs. After initially refusing to say what had happened, he told the officer that he had been shot by Six or Jed.

Officers collected six .380-caliber shell casings from the area of the shooting. Hardman remained hospitalized until October 23, 2003. He had gunshot wounds to his ankle, elbow, and back. A bullet was removed from the ankle and turned over to the police.

Shooting and robbery of Surinder Singh

On November 23, 2003, Surinder Singh set up shop selling blankets and rugs in a vacant lot at the intersection of El Camino and Albatross in Sacramento. His wife, Saparna Choudhry, worked with him that day. She handled the money while he sold the merchandise. Their small child was also present.

Toward the end of the day, as Singh was packing up his unsold goods and putting them into the back of his truck, a man approached Singh on foot. Singh described the man to a responding officer as a male black adult, approximately 25 years of age, dark skin, six foot with a slender build, clean shaven with short dark hair, wearing a dark jacket and dark pants. Choudhry described the man to a responding officer as a black male adult, clean shaven, dark hair, dark eyes, approximately 59 to 60 in height and up to 170 pounds, and wearing dark pants and a dark jacket. At trial, Singh testified that the man was of normal build and was shorter than Singhs six feet two inches. The man was of dark color and under 30 approximately; his hair was short; he had a little beard; his lower body clothing was dark color, like military color; and he was wearing a dark-colored jacket.

The man told Singh he wanted to buy a sports blanket, and Singh told the man how much it would cost. The man said he had a $100 bill and asked Singh if he had change. Singh, in turn, asked Choudhry, who was seated in the back of the truck with their child on her lap. Choudhry answered that they did have change, and she started to pull the money out of her jacket pocket; as she did so, the man pulled out a gun. Singh described the gun as darker in color than aluminum, but shiny. He estimated that the barrel was four inches long.

The man waved the gun at Singh and told him to [m]ove towards [the] side. The man snatched the money from Choudhrys hand. The man ordered Singh to [s]it in the truck on the floor. Singh climbed into the truck and sat down. The man climbed inside the truck as well. He ordered Choudhry to move along with Singh and to also sit down.

Once inside the truck the man ordered, Quickly. Give me money. As Singh sat down, defendant used the gun barrel to strike him on the forehead, near the eye, causing Singh to bleed. He then hit the seated Choudhry near the eye while continuing to demand money. Singh told Choudhry to give the man what he was asking for. Choudhry was shaking and was so terrified that she had difficulty removing the money from her pocket. The man fired two to four shots, one of which struck Singh in the neck. Then he grabbed some money from Choudhry and ran away.

A Sacramento police officer collected two shell casings from the vicinity of the truck. A bullet was removed from just about on top of the right clavicle in Singhs back and collected by the police.

Melvin Fletcher lived in the vicinity of the robbery. On November 23, 2003, about 6:30 p.m., while he was seated on the corner of El Camino and Albatross, he saw a white, two-door, full-size car with one occupant, come off of El Camino, head southbound on Albatross, make some turns and proceed out of Fletchers eyesight. Shortly thereafter a Black male came walking from the same direction, on the opposite side of the street from where Fletcher was seated. The Black male was about six foot, maybe a little taller than six feet. Skinny build. Because of lack of lighting, Fletcher could not discern the mans facial features. The man was wearing dark-colored pants and a dark-colored, long-sleeved sweater, possibly with a hood.

Fletcher watched as the black male walked up to the man who was selling carpets and rugs (i.e., Singh) and engaged him in conversation. The two men then went inside the back of the truck. After the two men left his sight, Fletcher decided to walk home. Right after he crossed El Camino he heard two gunshots. He turned around and saw the Black man running back in the direction from which he had come. Fletcher went home, but he later returned to the scene and talked to officers about what he had observed.

In November 2003, defendant was sharing a two-bedroom apartment with Kristina Hagar and Joshua Helton. The Sunday before Thanksgiving (i.e., November 23), defendant arrived home about 11:00 or 11:30 p.m. He appeared to be upset and also drunk. Defendant was wearing a black pullover sweater with a hood and a big pocket in the front, which he always wore.

Defendant told Hagar that he and one of his friends had run into somebody that owed him money and that he was -- the guy wouldnt give him his money . . . . Defendant indicated that he had hit the man but the man still would not give him the money. Defendant started to cry and told Hagar that she would be mad at him because the mans wife and his kid was [sic] there, too, and defendant hit them, too, and he still wouldnt give [defendant his] money.

During the period in which defendant lived with Hagar, she met a male friend of his named Nono, who drove a white, four-door, midsized car. She also saw defendant in possession of a gun. The gun was kind of small and like a silver-gray with a darker gray or black . . . grip, and it had a hole in it [u]p towards the top on the side, the end of the barrel. Hagar flipped out upon seeing the gun and told defendant to get it the hell out of [her] house. Defendant told Hagar that he would take it back and give it to the friend it belonged to. Hagar never saw the gun again.

Defendant was arrested on December 1, 2003. That same day, a detective showed photographic lineups to Singh and Choudhry. Defendants photograph was in the number three position. Singh said he was 75 percent sure that the shooter was in the number two position and 25 percent sure that he was in the number three position. Choudhry said the shooter was maybe number five.

On December 8, 2003, the detective again showed photographic lineups to Singh and Choudhry. Once again, defendants photograph was in the number three position. Singh indicated the person in the number three position looked like the same guy by age and skin color, but Singh believed it wasnt him because he remembered a mustache and a beard. Choudhry did not pick out anyone from the photographic lineup as the person who had shot Singh.

On July 20, 2004, Singh and Choudhry attended a live lineup. Defendant was in the number four position. Singh selected the person in the number three position and indicated he was sure of his identification. Choudhry also selected the person in the number three position, but she indicated she was not sure of her identification.

Forensic Evidence

Michael Saggs, a criminalist employed by the Sacramento County District Attorneys Forensic Sciences Laboratory, examined and compared the six shell casings from the Hardman shooting with the two shell casings from the Singh shooting. The casings were .380 caliber. The marks on them led Saggs to conclude that they had all been cycled through, and most likely discharged from, the same firearm.

Saggs microscopically compared the bullet jacket fragment removed from Hardmans ankle with the bullet removed from Singhs back. There was sufficient detail for Saggs to definitively conclude that both bullets had been discharged from the same firearm.

Defense

A latent fingerprint was recovered from the back of Singhs truck. It did not match known fingerprints of defendant.

A Sacramento police officer who had responded to the Singh shooting testified that he spoke with Singh while he was receiving medical attention. Singh stated that a Black male had shot him in the neck. Singh described the shooter as approximately 510 in height.

Stipulation

The parties stipulated that, during trial, deputies measured defendant to be six feet three inches tall in tennis shoes.

DISCUSSION

I

Defendant contends there was insufficient evidence of his identity as the perpetrator of the attempted murder (count three), assault with a semiautomatic firearm (count four), and robbery (count five) of Surinder Singh. Although defendant does not dispute that he shot William Hardman using the gun he had previously sold to someone else[,] he claims the testimony was insufficient to establish that the same weapon was used to shoot Singh the next month. We are not persuaded.

To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole. (Peoplev.Carpenter (1997) 15 Cal.4th 312, 387, quoting Peoplev.Johnson (1993) 6 Cal.4th 1, 38; see Jacksonv.Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].)

Defendant notes that Hardman described the gun as black in color, whereas Singh described the gun as shiny, but darker than aluminum. Based on these inconsistencies in the descriptions, defendant asserts it is obvious they were describing two different weapons. Defendant is incorrect.

The jury could deduce that Hardmans description was more accurate than Singhs, because Hardman had seen defendant in possession of what appeared to be the same gun a few days previously, when he was not staring down its barrel. In contrast, Singhs only observations of the gun occurred when Singh was being robbed at gunpoint, in the presence of his wife and child. Moreover, the crimes against Singh occurred after 6:00 p.m. in late November. It was dark at that time, and there was a lack of lighting in the area. Thus, the inconsistencies in the descriptions do not compel a conclusion that two different guns were used.

In any event, criminalist Saggs examined and compared the six shell casings from the Hardman shooting with the two shell casings from the Singh shooting. All of the casings were .380 caliber. The marks on the casings led Saggs to conclude that they had all been cycled through, and most likely discharged from, the same firearm.

Saggs microscopically compared the bullet jacket fragment removed from Hardmans ankle with the bullet removed from Singhs back. There was sufficient detail for Saggs to definitive[ly] conclude that both bullets had been discharged from the same firearm.

Defendant claims the expert testimony fails to constitute sufficient proof of [his] guilt beyond a reasonable doubt, and more specifically that the same weapon was used to shoot both Hardman and Singh. He argues that recent discussions on the issue indicate that ballistics testimony of the nature offered by Saggs is highly subjective and is far from absolute certainty. (Citing U.S. v. Monteiro (D.Mass. 2006) 407 F.Supp.2d 351.) Defendants reliance on Monteiro is misplaced.

In Monteiro, the defendants moved pursuant to the Federal Rules of Evidence to exclude expert testimony, based on tool marks, that cartridge casings found at different crime scenes matched firearms linked to the defendants. (U.S. v. Monteiro, supra, 407 F.Supp.2d at p. 354.) The defendants argued that the standard methodology of firearms identification is unreliable. (Ibid.) The court rejected that argument, holding that the underlying scientific principle behind firearm identification -- that firearms transfer unique toolmarks to spent cartridge cases -- is valid and reliable. (Id. at pp. 355, 372.) However, the court added [o]ne important caveat: . . . Because an examiners bottom line opinion as to an identification is largely a subjective one, there is no reliable statistical or scientific methodology which will currently permit the expert to testify that it is a match to an absolute certainty, or to an arbitrary degree of statistical certainty. (Id. at p. 372.)

We note that Monteiro, as a decision of a lower federal court, is not binding upon this court, even on a federal question. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) In any event, Monteiro considered the admissibility of firearms testimony under the Federal Rules of Evidence, which do not govern the admissibility of evidence in our state courts.

Defendant has forfeited any objection to the admission of Saggss testimony by failing to raise it in the trial court. (Evid. Code, 353; People v. Holt (1997) 15 Cal.4th 619, 666-667.) In any event, although Saggs accepted the prosecutors suggestion that his conclusion was definitive, he did not claim that his conclusion was an absolute certainty or that it possessed any arbitrary degree of statistical certainty. (U.S. v. Monteiro, supra, 407 F.Supp.2d at p. 372.)

Defendant has not shown that Saggs, who as of the time of trial had at least 25 years of experience in the area of firearm and tool mark identification, was not qualified to employ that methodology or that he applied it incorrectly in this case. Defendant claims Saggs failed to establish that the same weapon was used in each instance, because Saggs had no weapon to test fire. But Saggs specifically testified that he does not always need the gun in order to establish that two bullets were fired from a single firearm. Saggss testimony was reasonable in nature, credible, and of solid value, and thus was substantial evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303-304.)

Defendant next contends that, even if the same gun was used to shoot both Hardman and Singh, there was insufficient evidence to prove it was defendant who shot Singh. He relies on evidence that, a few days before shooting Hardman, he stated he would sell the gun to Matthew Harrison. But there was evidence that defendant walked to Harrisons home and retrieved the gun before using it to shoot Hardman. There was no evidence that defendant returned the gun a second time or that it passed through any other hands between the Hardman shooting and the Singh shooting. (Cf. Ex parte Clark (Alabama 1992) 591 So.2d 23, 28 [at least five other shooters were present at an Alabama hunting club when the fatal shot was fired].) The jury could deduce that defendant had continued access to the gun on the day that Singh was shot.

Defendant notes that Singh and Choudhry both failed three times to identify him as the person who had shot and robbed Singh. But the prosecution was not required to produce direct evidence such as eyewitness testimony. Rather, the state can rely entirely on circumstantial evidence to connect a defendant with the commission of a crime. (People v. Allen (1985) 165 Cal.App.3d 616, 625.)

Contrary to defendants argument, the eyewitnesses descriptions were not totally inconsistent. Singh, Choudhry and Fletcher all described the perpetrator as a Black male. Singh described the man to one officer as six feet tall with a slender build, and to another as approximately 510 in height. At trial, Singh said the man was taller than five feet six inches, but shorter than his own height (six feet two inches), and with a normal build. Choudhry described the man to an officer as approximately 59 to 60 in height and up to 170 pounds. Fletcher testified the man was about six foot, maybe a little taller than six feet[,] with a skinny build. The probation report describes defendant as a Black male, six feet three inches tall, and weighing 180 pounds.

The jury could conclude that the inconsistencies in the witnesses descriptions were explained by several factors. The crimes against Singh occurred when it was dark outside. Fletchers observations of the perpetrators facial features were hindered by the lack of lighting and his vantage point across the street. Singh and Choudhry were under the stress of being robbed at gunpoint. Nothing in the record suggests any of the witnesses had previously seen defendant. The jury was instructed that it could consider each of these factors in evaluating the eyewitness testimony. (CALJIC No. 2.92.)

Defendant argues the testimony of Kristina Hagar was hardly substantial proof, either alone or in conjunction with the other evidence, that defendant was the person who shot and robbed Singh. We are not convinced.

Hagar testified that in November 2003, she and her fianc shared an apartment with defendant. The Sunday before Thanksgiving (i.e., November 23), defendant arrived home about 11:00 or 11:30 p.m.^[3] He appeared to be upset and also drunk. He was wearing his black pullover sweater with a hood and a big pocket in the front, which he always wore. This form of dress was significant in light of Fletchers testimony that the person who had shot Singh five hours previously was wearing a dark-colored, long-sleeved sweater, possibly with a hood.^[4]

Defendant told Hagar that he and one of his friends had encountered a person who owed him money and that the person would not give him his money. Defendant indicated that he had hit the man but the man still would not give him the money. Defendant started to cry and told Hagar that she would be mad at him because the mans wife and his kid was [sic] there, too, and defendant hit them, too[,] and he still wouldnt give [defendant his] money.

Defendant notes certain inconsistencies between the Singh offenses and the events he described to Hagar: the Singh offenses were crimes of opportunity committed by a single person, whereas defendant claimed he and another person had attempted to collect money from a man who owed him money; the Singh perpetrator did not hit Singhs child, whereas defendant told Hagar he had hit a wife and child; and Singh was shot, whereas defendant did not tell Hagar that anyone was shot. Defendant concludes: It does not make sense that [he] would be so distraught over the incident that he would report what he had done to Ms. Hagar, yet lie about the specific details of the incident. The more reasonable interpretation is that [he] was discussing something other than the Singh incident. We disagree.

The jury could find it eminently reasonable that defendant would confide to his roommate that he had hit a woman and child and, at the same time, attempt to minimize his conduct by claiming he had been justified in demanding money from the womans husband and by omitting the fact that he had shot the man. Defendants omission of the shooting is all the more understandable given that Hagar had earlier flipped out upon seeing the gun in defendants possession and had ordered him to get it the hell out of [her] house.

Finally, in light of Choudhrys testimony that she was holding her child on her lap at the time she was struck, the jury could deduce that defendant believed he had struck both a woman and a child, as he reported to Hagar, even though his belief ultimately proved incorrect.

In sum, defendants convictions on counts three, four and five are supported by substantial evidence. (Peoplev.Carpenter, supra, 15 Cal.4th at p. 387.)

II

The Attorney General has identified three sentencing errors that must be corrected.

Count one

The trial court stayed imposition of sentence on count one (attempted manslaughter of Hardman) because the count involved the same physical act as the count two assault with a firearm of Hardman. The court also purported to sentence count one consecutive to count three (attempted murder of Singh). The court stated it was imposing and staying one-third the mid-term of each of the additional enhancements, 12022.5, 12022.7, for an additional period of time of two years and four months. (Italics added.) However, a section 12022.5 enhancement carries prison terms of three, four, or ten years; one-third the midterm is one year four months. A section 12022.7, subdivision (b), enhancement carries a prison term of five years; one-third is one year eight months. Thus, the judgment must be modified to impose and stay enhancement terms totaling three years, not two years and four months.

Count two

On count two (assault with a firearm of Hardman), the trial court imposed (but did not stay) a consecutive sentence and the same two enhancements as on count one. This time, the court correctly asserted that it was imposing three years for the two consecutive enhancements. However, the abstract of judgment erroneously states that the term on each enhancement is 18 months. The abstract must be corrected to reflect a section 12022.5 enhancement of one year four months; and a section 12022.7, subdivision (b), enhancement of one year eight months.

Count five

The trial court declined to impose the section 12022.53, subdivision (d) enhancement on count five. The court indicated its belief that it may only impose under the statute one term of a 12022.53(d) for 25 years to life per victim. (Italics added.) The court appears to have relied on section 12022.53, subdivision (f), which provides in relevant part: Only one additional term of imprisonment under this section shall be imposed per person for each crime. (Italics added.) By applying the enhancement per victim, rather than per crime, the trial court erred.

In counts three and five, defendant was convicted of different crimes (attempted murder and robbery) against the same victim, Surinder Singh. Thus, imposition of the section 12022.53, subdivision (d) enhancement on count three did not preclude imposition of an identical enhancement on count five, a different crime. The judgment must be modified to impose a section 12022.53, subdivision (d) enhancement on count five. Because count five has been stayed pursuant to section 654, the enhancement must also be stayed under that provision.

DISPOSITION

The judgment is modified as follows. On count one, a section 12022.5 enhancement of one year four months and a section 12022.7, subdivision (b) enhancement of one year eight months are imposed and stayed pursuant to section 654. On count five, a section 12022.53, subdivision (d) enhancement of 25 years to life is imposed and stayed pursuant to section 654. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. The amended abstract must be corrected to reflect a section 12022.5 enhancement on count two of one year four months; and a section 12022.7, subdivision (b) enhancement on count two of one year eight months.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] Further undesignated statutory references are to the Penal Code.

^[2] The gun, which was black and .380 caliber, appeared to Hardman to be the same gun he had seen in defendants possession a few days before. At that time, defendant had said that he was going to sell the gun to Matthew Harrison.

^[3] We reject defendants argument that this conversation may have occurred prior to the Singh robbery.

^[4] Shortly after the shooting, Fletcher had told his wife that the shooter was wearing a hooded sweatshirt.