P. v. Lomas

Filed 9/27/06 P. v. Lomas CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside. Robert George Spitzer, Judge. Affirmed.

Hirschhorn & Bieber, Brian H. Bieber and Joel Hirschhorn; Law Office of David A. Elden and David Elden for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lila E. Garcia, Supervising Deputy Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.

Following a jury trial, defendant Jerry Lomas was convicted of six counts of assault with a firearm on a peace officer in violation of Penal Code section 245, subdivision (d)(1). The jury also found true the allegation that defendant personally used a semiautomatic rifle and personally and intentionally discharged the same within the meaning of Penal Code sections12022.5, subdivision (a)(1), 1192.7, subdivision (c)(8), and 12022.53, subdivision (c). Defendant also admitted that he committed count 6 while released from custody on a pending felony charge within the meaning of Penal Code section 12022.1. As a result, the trial court sentenced defendant to a total term of 36 years 8 months in state prison and ordered him to pay $4,000 in restitution.^[1]

Defendant appeals, arguing that the lack of direct evidence proving he shot at the peace officers demonstrates the evidence of his guilt is insufficient as a matter of law to sustain his convictions. Additionally, defendant argues that his trial attorney rendered ineffective assistance of counsel due to (a) her failure to file a pretrial motion to dismiss and/or a motion to suppress based on defendant’s Fourth Amendment right to be free from an unreasonable search and seizure, and (b) her failure to impeach key state witnesses. We disagree and affirm.

STATEMENT OF FACTS

On September 24, 2002, at approximately 11:40 p.m., on the Morongo Indian Reservation, two officers from the Riverside County Sheriff’s Department attempted to stop an all-terrain vehicle (“quad”) for operating without lights and swerving. During their pursuit, Deputy Victor Trevino (“Deputy Trevino”) and Corporal James Pope (“Corporal Pope”) used lights and sirens; however, the quad eluded them.

Later that evening, Deputy Alfonso Campa (“Deputy Campa”) observed a campfire at Potrero Canyon.^[2] While the Potrero Canyon area was frequently visited by Morongo tribe members to socialize and engage in target practice, Deputy Campa noticed some vehicle activity in the canyon that was not normal for that time of night. As a result, Deputy Campa decided the area needed further investigation. Deputy Campa contacted additional law enforcement and called for them to meet at the corner of Morongo and Laws roads to prepare for their descent into the canyon. After briefly conferring, the vehicles headed into the canyon in a caravan procession. Deputy Campa drove the lead car. His headlights were on; however all other cars in the procession had their headlights turned off. Corporal Pope testified that they did this to promote their own safety and to add an element of surprise to their arrival at the campfire.

Upon arriving at the campfire, Deputy Campa parked and turned on his vehicle’s spotlight. The deputies in the caravan behind him fanned out, parked, and turned on their high beams and spotlights as well. After the spotlights were on, Deputy Campa announced they were Riverside County Sheriff’s deputies, at which point “mass confusion” ensued as the 10 to 15 people and a few vehicles at the scene started to scatter. This caused a large cloud of dust to form, which significantly obstructed the vision of most of the officers.

Corporal Pope testified that he immediately recognized defendant. Defendant was wearing a red shirt at the time and the two of them were roughly 15 yards apart. Corporal Pope yelled “[l]et me see your hands, Jerry” in a loud and authoritative voice. Defendant initially gave no response, only a blank daze. He then yelled “Oh f--k[,] Oh f--k” and started running away from the police.

Corporal Pope testified that as defendant began running, he saw what he thought was a rifle. As defendant was running away, Corporal Pope saw defendant stop, turn about 60 degrees toward the police officers, and raise the barrel of his gun. Corporal Pope heard the first shot and saw a muzzle flash about 30 degrees from his direction. Corporal Pope then heard another shot, at which time he saw defendant carrying the rifle at his waist with one hand on the front of the weapon steadying the barrel. Corporal Pope saw defendant begin to swing the gun in an arc-like fashion in the direction of the officers. Defendant continued to swing the gun, at which point Corporal Pope lost sight of him due to the large amount of dust in the air from the fleeing vehicles. Corporal Pope testified that he heard a total of four to five shots and that the cloud of dust did not obscure his view of defendant until the last shot was fired.

Deputy Trevino was traveling in the same marked law enforcement vehicle as Corporal Pope. Deputy Trevino testified that when they arrived at the campfire, he noticed a person wearing a red shirt kneeling near a quad about 15 yards away from him. Deputy Trevino stated that he saw a rifle in the suspect’s left hand. He then saw the suspect get up and take a few steps away from him, at which point the dust obscured Deputy Trevino’s vision. While Deputy Trevino got only a few seconds to look at the suspect, he testified the man he saw that night resembled the defendant. Finally, while the dust prevented Deputy Trevino from observing any muzzle flash, impact locations, or shell casings, based on the sound of the gunfire, he concluded the man running from him was the originator of the gunfire.

Deputy Crawford, who was standing by the lead car at the time, testified that he saw someone with a red shirt holding a gun. He further testified that he saw the gun pointed toward the crowd of police officers, then saw the muzzle flash and heard a round go off. Deputy Crawford was certain that shots were fired in his direction, and while he ran for cover to protect his own safety, he saw three or four impacts all in the same spot, coming toward his car. Although his vision was eventually obscured by the dust, Deputy Crawford testified that he believed all shots came from the same individual in the red shirt.

Joshua Costello was a member of the procession as well. Costello was a security officer for the Morongo Indian Reservation. Costello immediately recognized defendant from previous encounters on the reservation. When Costello was stepping out of his car, he heard defendant yell “[t]his is my reservation.” Defendant had a rifle in his hands. As Costello reached for his radio to report the event, he saw a muzzle flash and heard shots from defendant’s direction.. At that point, defendant was the only person in the area and Costello concluded that defendant was responsible for the shooting. Costello testified that he heard seven or eight shots in succession and saw two or three muzzle flashes out of his peripheral vision. Sergeant Baeckel testified that while he never saw the shooter, the shots seemed “extremely close.” Sergeant Baeckel testified, “I believed we were being fired upon and that we could be shot if we hadn’t already been shot.” Following the initial encounter at the campfire, Sergeant Baeckel made sure that nobody was injured. During his conversations with each of the officers, Deputy Campa and Corporal Pope informed him that the shooter was defendant.

After the shots and everyone settled, the officers discovered a Black male on the ground. The male was detained and put in the back of Deputy Campa’s car. The following day, defendant was found in a house on the reservation. Sergeant Borja spoke with defendant at the Banning Sheriff’s station. Defendant said he was in custody for standing up for what he believed in and that he did not like it that people were trying to change the way of life of those on the reservation. Defendant said the deputies had no business being at the canyon the night before and their presence was to blame for the incident that occurred. Additionally, defendant said the police were lucky that he gave up the way he did, and while defendant never admitted to being at the fire, he did say that he was in the area.

Around the same time of defendant’s apprehension by the police, two guns were located in the canyon area. A Colt AR-15 semiautomatic firearm was found in a ravine east of the crime scene. The gun had a loaded magazine and a bullet in the chamber. Additionally, a .22-caliber rifle was found about three-quarters of a mile from the Colt AR-15. In subsequent forensics tests, the .22-caliber rifle occasionally misfired, while the AR-15 semiautomatic rifle consistently functioned properly.

Testimony by an investigator from the Riverside County Sheriff’s Department Central Homicide Unit indicated that the canyon is littered with thousands of casings. As a result, investigators selected only casings that appeared to be freshly expended based on their bright and shiny appearance. As a result, the investigator testified that it is fair to say they might have missed some casings in their visual inspection.

Additional facts are set forth in the discussion of the issues to which they pertain.

DISCUSSION

A. Sufficiency of Evidence

1. Assault on Peace Officers

Defendant contends the jury’s verdicts on the charges of assault with a firearm on a peace officer were not supported by sufficient evidence because: (a) of all the officers on the scene, only one, Corporal Pope, saw defendant swing and fire the gun in the direction of the officers; (b) there is insufficient evidence to link defendant to either firearm that was recovered from the scene of the alleged shooting; and (c) the officers were not engaged in official duties, and even if they were, defendant would not have known they were. We disagree and find that defendant’s contentions lack merit.

When sufficiency of evidence is challenged on appeal in a criminal case, the appellate court “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 562.) Furthermore, it has long been established that in order to set a judgment aside on appeal, it must be shown that upon no hypothesis whatsoever is there sufficient evidence to support the conclusion of the trier of fact. (People v. Redmond (1969) 71 Cal.2d 745, 755.) Thus, if the circumstances reasonably justify the jury’s findings, the opinion of the reviewing court that the circumstances might be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933; People v. Stanley (1995) 10 Cal.4th 764, 793.) Finally, resolutions of conflicts in the evidence are for the trier of fact. (People v. Carlucci (1979) 23 Cal. 3d 249, 255.)

Penal Code section 240 defines assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Assault requires proof of each of the following elements: “1. A person willfully [and unlawfully] committed an act which by its nature would probably and directly result in the application of physical force on another person;

2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; and

3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another.” (CALJIC No. 9.00 (2006 rev.); People v. Williams (2001) 26 Cal.4th 779, 790.)

Corporal Pope saw defendant raise the barrel of the gun and point it in the direction of the officers. Additionally, Corporal Pope heard four to five shots, saw defendant’s hand on the gun, and saw muzzle flashes emanating from defendant’s direction. Since raising a gun in the direction of a crowd of police officers would “probably and directly result in the application of physical force on another person,” the first element of assault under CALJIC No. 9.00 is satisfied. Additionally, the act of raising a gun toward the officers “would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person.” (CALJIC No. 9.00 (2006 rev.).) Finally, since the loaded gun was pointed within 30 degrees of Corporal Pope and in the general direction of the officers, the defendant “had the present ability to apply physical force to the person of another.” (CALJIC No. 9.00 (2006 rev.).) Thus, the testimony of Corporal Pope alone is sufficient to establish the elements of assault.

Defendant argues “significant inconsistencies in the testimony of the officers who were present at the subject incident . . . demonstrate that the evidence of guilt was insufficient as a matter of law to sustain [defendant’s] convictions.” While defendant argues that Corporal Pope’s testimony was the only testimony indicating that defendant pointed a gun in the general direction of the officers, evidence in the record does not support this conclusion.

Deputy Crawford testified that he saw a red-shirted individual pointing a gun toward the crowd of police officers. He further testified that he saw impact spots which were aimed directly toward his car. Additionally, before his vision was obscured by the dust, Deputy Crawford saw a muzzle flash and was certain that shots were fired in his direction. Similarly, Deputy Trevino testified he noticed a man in a red shirt who resembled defendant holding a rifle. While Deputy Trevino did not see muzzle flashes or impact locations due to dust in the air, he concluded that, based on the direction of the sound of the gunfire, defendant was the originator of the shots.

Morongo Security Officer Joshua Costello testified that he immediately recognized defendant. Costello saw defendant with a rifle in his hands, heard shots emanating from defendant’s area, and saw muzzle flashes coming from defendant’s direction. Costello testified that based on the above factors, he believed defendant was responsible for the shooting.

Even assuming that defendant did not aim at each individual officer, the fact that he shot in their general direction is sufficient to sustain the convictions. “Assault with a deadly weapon can be committed by pointing a gun at another person [citation], but it is not necessary to actually point the gun directly at the other person to commit the crime.” (People v. Raviart (2001) 93 Cal.App.4th 258, 263.) Here, several officers testified they believed that they were being shot at. They testified that the scene was “intense” and “mass confusion” erupted following their arrival. All of the officers took cover. In addition, a few officers radioed to the station that they were engaged in an officer-involved shooting. These facts reflect the officers were in significant danger. Although defendant argues that the testimonies of the deputies were weak and contradictory, the failure of the deputies to have precisely corresponding testimony is explained best by the chaotic nature of the scene.

2. Use of Firearm

Notwithstanding the above, defendant argues that there is insufficient evidence linking him to either firearm recovered from the scene of the shooting. The issue in this case, however, is not whether defendant used either of the weapons found at the scene, but whether defendant used any weapon in his commission of assault. Thus, defendant’s issue is a red herring.

Two guns were found near the scene of the incident: a Colt AR-15 semiautomatic rifle and a .22-caliber rifle. Additionally, a total of 14 expended shell casings were collected from the scene, including 11 nine-millimeter casings, one .22-caliber casing, and two “live” .223-caliber rounds.

The issue of whether defendant was linked to either the AR-15 or the .22-caliber firearms found at the scene is irrelevant if plaintiff can establish that defendant used any firearm. While the People concede that it was not determined whether defendant used one of the guns discovered, that is not dispositive in this case. The evidence discussed above in section 1, including the testimony of officers about the kind of weapon they saw and heard, supports the finding that defendant used a gun in the commission of his crimes. This alone is sufficient to sustain his convictions.

3. The Officers Were Engaged in Official Duties

Defendant was found guilty of not only assault, but assault on a peace officer. Penal Code section 245(d)(1) states: “Any person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years.” On appeal, he argues that his conviction for assault on a peace officer must be reversed because at the time of the incident, the officers were not engaged in official duties, and even if they were, defendant would not have known that.

The procession of vehicles to the campfire was made up of all marked police vehicles. Additionally, all deputies on the scene wore their uniforms. Finally, and most significantly, within seconds of arriving at the campfire, Deputy Campa announced, “Riverside County Sheriff’s Department.” Thus, defendant reasonably should have known that the officers were engaged in official duties. Defendant, however, contends that the officers had no right to be on the reservation, and thus, were not legally performing their duties. We disagree.

All of the officers testified they were employed by the Riverside County Sheriff’s Department. Additionally, while Joshua Costello was not a certified peace officer, he was employed as a patrol officer for the Morongo Indian Reservation. Deputy Campa testified that the reservation was his beat the night of the assault. Furthermore, Corporal Pope testified that he was designated to cover part of Cabazon, the Morongo Indian Reservation, and parts of Palm Springs that night. Corporal Pope also testified that other deputies from his station were assigned to beats that covered the Morongo Indian Reservation as well. We agree with plaintiff’s contention that given the employment of the deputies as police officers by the Riverside Sheriff’s Department, and the regular assignment of police duties to them by the department, the evidence supports a logical inference that these officers were lawfully on the Morongo Reservation at the time of the incident.

While defendant argues that the officers had no authority to take any action at the campfire site because the activities the officers observed did not raise probable cause that there was any wrongdoing occurring at the canyon, we find this argument without merit.

The basic duty of law enforcement and criminal jurisdiction over Indian Reservations is within the control of the State of California. (Donahue v. Justice Court (1971) 15 Cal.App.3d 557, 559.) Public Law 280 provides that the State of California “‘(a) . . . shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country . . . to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, . . . and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory . . . .’” (Public Law 280, act of Aug. 15, 1953, ch. 505, § 2, 67 Stat. 588, 18 U.S.C.A § 1162). Thus, nowhere in the above statute does it state that an officer must have probable cause to enter a reservation.

Corporal Pope testified that he and Deputy Trevino had been involved in a pursuit with a quad which eluded them earlier in the evening. Corporal Pope informed Deputy Campa of the incident. Deputy Campa, who testified that he observed unusual vehicle activity in Potrero Canyon that night, then noticed the campfire in the canyon and decided, in light of the night’s previous events, that the scene needed further investigation. Sergeant Baeckel then assembled a group of officers to convene at the corner of Morongo and Laws roads. The procession then headed to the campfire location. Thus, while no probable cause is required under the law, even if it were, the fact that officers observed unusual activity established sufficient probable cause to enter the canyon.

B. Ineffective Assistance of Counsel

Defendant next contends that his trial attorney rendered ineffective assistance of counsel due to (a) counsel’s failure to file a pretrial motion to dismiss and/or a motion to suppress based on plaintiff’s fourth amendment right to be free from an unreasonable search and seizure, and (b) counsel’s failure to impeach key state witnesses. We disagree.

In order to establish a claim of ineffective assistance of counsel, defendant must demonstrate “(1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541; People v. Boyette (2002) 29 Cal.4th 381, 430; In re Avena (1996) 12 Cal. 4th 694, 721.) Thus, an ineffective assistance of counsel claim has two components: deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693- 694; People v. Williams (1997) 16 Cal.4th 153, 214-215; In re Avena, supra, 12 Cal.4th at p. 721; People v. Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.)

“When a defendant claims ineffective assistance of counsel based on his counsel’s failure to bring a motion to suppress evidence on Fourth Amendment grounds, the defendant is required to show that the Fourth Amendment claim had merit.” (People v. Frye (1998) 18 Cal.4th 894, 989.) “‘[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has “a source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”’ [Citation.] ‘In other words, the defendant must show that he or she had a subjective expectation of privacy that was objectively reasonable.’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 255, citing Minnesota v. Carter (1998) 525 U.S. 83, 88, and State v. Yakes (1999) 226 Wis.2d 425, 430, respectively.)

In defendant’s first claim of ineffective assistance of counsel, he argues that counsel failed to file a pretrial motion to dismiss or a motion to suppress based on his Fourth Amendment right to be free from an unreasonable search and seizure. However, as discussed above, the Riverside County Sheriff’s Department had jurisdiction over the area of the incident. Additionally, the fact that Deputy Campa testified that unusual vehicle activity occurred in the Potrero Canyon area is sufficient to determine that defendant could not establish a “‘subjective expectation of privacy that was objectively reasonable.’” (People v. Ayala, supra, 23 Cal.4th at p. 255.)

With respect to defendant’s second claim of ineffective assistance of counsel, he argues that his counsel failed effectively to cross-examine witnesses. Defendant alleges the following mistakes: (1) the cross-examination of Deputy Crawford, (2) the cross-examination of Sergeant Baeckael, and (3) the cross-examination of Sergeant Borja. On cross-examination, Deputy Crawford said he could not remember whether a Black male was detained at the scene and placed in Deputy Campa’s car. In response, defendant’s trial counsel pointed out that the information was in Deputy Crawford’s report and then had Deputy Crawford refresh his memory by reading the report. Defendant argues this was improper and that counsel should have properly impeached the witness.

Next, defendant argues that his trial counsel did not properly impeach Sergeant Baeckel. On cross-examination, defendant’s trial counsel asked Sergeant Baeckel how far away on the ground the Black male taken into custody at the scene was from the nearest patrol car. Sergeant Baeckel responded with an estimate of 40 feet. On recross-examination, defendant’s trial counsel asked Sergeant Baeckel if he remembered writing that the man was 40 to 50 yards away. Baeckel said he did not remember, at which point defendant’s trial counsel refreshed his recollection with his report which stated that the man was 40 to 50 yards away.

Finally, defendant contends that his trial counsel failed to “impeach [Sergeant Borja] in a devastating fashion with his prior inconsistent statement” when she refreshed his recollection regarding what defendant said his reason was for being at the police station. On direct examination, when the prosecution asked what reason defendant gave for being interrogated, Sergeant Borja responded, “[b]ecause of the shit that happened last night.” However, during cross-examination, defense counsel asked Sergeant Borja to confirm, based on his memory, that defendant’s initial response to the question was “I don’t understand what you’re getting at.” Sergeant Borja could not remember based on memory alone, thus, counsel refreshed his memory with the transcript.

We agree with the People that the proper procedure to impeach a witness is first to ask whether he or she recalls the inconsistent statement, and then to ask leave of court to refresh the witness’s recollection in the event he or she does not. The above exchanges show that defendant’s trial counsel adequately addressed each issue she had with their testimonies. The fact that counsel refreshed the officers’ memories does not give rise to a claim of ineffective assistance of counsel.

Additionally, defendant cannot show that he suffered any prejudice because of his trial counsel’s failure to impeach the witnesses. The testimony by Deputy Crawford involving whether or not he remembered detaining the Black male in his police car has nothing to do with defendant’s guilt with respect to the charges of assault on a police officer. The same applies to Sergeant Baeckel’s testimony regarding the distance of the Black male from the nearest police car. Finally, the fact that Sergeant Borja could not remember defendant’s exact words at the interrogation does not establish that prejudice can be shown.

Nonetheless, defendant claims that his counsel’s failure to impeach the witnesses hurt him.. However, the impeachment of these witnesses would have been on collateral issues. Defendant does not suggest how the impeachment would have helped him. Although defendant claims the evidence was vital, we, like the jury, found that it was not. Even if we assumed error, there was no prejudice to sustain a claim of ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

MCKINSTER

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] On March 18, 2005, the trial court vacated and modified defendant’s sentence; however, the modification resulted in the same total punishment.

^[2] Potrero Canyon is located on the north end of the Morongo Reservation.