P. v. Scoma

Filed 10/4/06 P. v. Scoma CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Shasta)

----

A jury convicted defendant Philip Joseph Scoma of attempted voluntary manslaughter (Pen. Code, §§ 192, 664) and sustained allegations that he personally used a firearm (Pen. Code, § 12022.5, subd. (a)) and personally inflicted great bodily injury (Pen. Code, § 12022.7). The trial court sentenced defendant to 10 years in prison.

On appeal, defendant claims there was insufficient evidence to support a conviction for attempted voluntary manslaughter. We reject the contention and affirm the judgment.

Facts and Proceedings

Joseph Nicholas Scoma (Nicholas), defendant’s son, lived with defendant at defendant’s mobile home. On August 4, 2003, Nicholas came home and told his father he had quit his job at Carl’s Jr. Defendant became angry and started yelling at Nicholas.

The argument escalated and the two began pushing each other, leading Nicholas to push defendant to the ground at one point. Defendant was overweight and had recently undergone heart surgery. He would argue with Nicholas until he ran out of breath, and then commence arguing again once he caught his breath. The series of arguments lasted about 30 minutes.

Defendant twice swung a metal baseball bat at Nicholas, but missed both times. One time defendant told Nicholas, “I’ll hit you in your fucking head” as he swung the bat. He also tried to hit Nicholas with a metal strip used to separate carpeting from the wall.

Defendant eventually told Nicholas to leave. Nicholas gathered his belongings and started to load them into his car, going in and out of the house several times. He never barred Nicholas from entering or leaving, but there was more pushing and fighting by the front door.

Defendant eventually stopped yelling at Nicholas, turned, and reached into a bag of dog biscuits on a counter just inside the front door. He pulled out a plastic bag containing a .38 caliber revolver with a two-inch barrel. Defendant took the gun out of the bag and pointed it at Nicholas’s foot. Defendant pulled the hammer back and told his son “I’ll shoot you in your fucking foot.”

Defendant “[j]ust pointed [the pistol] at me and threatened me and then kind of took a couple of steps back. And then he leaned up against the doorway, just kind of sat there, like he was happy with himself.” Nicholas then told defendant to put the gun down, saying “[w]e need to figure something out and we should probably do that without the gun.”

Defendant fidgeted with the gun, taking it in and out of the plastic bag. Nicholas was yelling and swearing at defendant by this point. He yelled “[p]ut the gun down and let’s finish this” to defendant. As he yelled at defendant, Nicholas accidentally spit on defendant’s arm. Defendant looked at Nicholas and said, “[y]ou spit on me.” He wiped the spit on Nicholas and then shot him.

Defendant’s eyebrows raised and his eyes were wide when he fired the revolver. The bullet entered Nicholas’s right chest just below the clavicle, hit one lung, and stopped next to the spine. Defendant called 911 and asked for an ambulance. He told the emergency operator that the gun accidentally went off when he and Nicholas were reaching for it. Nicholas was in intensive care for five days.

It took about three pounds of pressure to pull the trigger before the revolver would fire, and the revolver could not fire unless the trigger was pulled. According to the prosecution’s expert criminalist, defendant could have shot Nicholas from about two to three feet away.

A licensed private investigator and firearms expert testifying for the defense tested the plastic bag. He found the holes and burn marks on the bag to be consistent with it having been wrapped around the revolver when it was fired. The marks and burns were also consistent with the bag being held against the revolver with one hand as the revolver was being held with both hands when it fired.

Discussion

Defendant’s sole contention on appeal is there was insufficient evidence of intent to kill to support his attempted voluntary manslaughter conviction. “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.” (People v. Johnson (1993) 6 Cal.4th 1, 38.)

The distinction between murder and voluntary manslaughter, and thus between attempted murder and attempted voluntary manslaughter, lies in the existence of malice. (People v. Lasko (2000) 23 Cal.4th 101, 108 (Lasko).) A person who unlawfully attempts to kill nonetheless lacks malice--and is guilty of attempted voluntary manslaughter--if his “reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘“ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.”’ [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 163.)

One can commit voluntary manslaughter either with an intent to kill or with a conscious disregard for life. (Lasko, supra, 23 Cal.4th at pp. 109-110.) However, “attempted voluntary manslaughter cannot be premised on the theory defendant acted with conscious disregard for life, because it would be based on the ‘internally contradictory premise’ that one can intend to commit a reckless killing.” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 710.)

A defendant’s intent is rarely proved through direct evidence. “One who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots. Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the putative killer’s actions and words. Whether a defendant possessed the requisite intent to kill is, of course, a question for the trier of fact.” (People v. Lashley (1991) 1 Cal.App.4th 938, 945 (Lashley).)

In Lashley, the defendant shot the victim with a .22-caliber rifle from a balcony, piercing his chest and arm, after previously threatening the victim and his companions from that distance that he would send someone down “’to kick ass.’” (Lashley, supra, 1 Cal.App.4th at p. 942.) “The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. (Id. at p. 945.) The court concluded: “[t]he very act of firing a .22-caliber rifle toward the victim at a range and in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill under the circumstances presented here.” (Ibid.)

Defendant asserts the evidence supports an accidental rather than intentional firing. He characterizes the evidence presented to the jury as reflecting “a spontaneous struggle and argument between an older, infirm man and his younger son, which continued for half an hour, in which each side landed verbal and physical blows.” Defendant had been fidgeting with the gun and “Nicholas’s sudden verbal outburst, accompanied by spitting at his father, occasioned an excited and accidental, rather than a single-minded and purposeful shooting.” In support of this conclusion defendant notes his look of surprise after shooting his son, he never threatened to kill him, the gun was in his left hand, Nicholas did not know what defendant intended, and evidence showing the plastic bag could have been over the gun when it fired.

Defendant’s claims are not supported by the record. There is no evidence defendant and the victim were struggling when Nicholas was shot. Nicholas’s uncontradicted testimony establishes he neither threatened defendant nor reached for the gun before he was shot. While the two had pushed each other earlier, Nicholas was only yelling at defendant at the time of the shooting.

Defendant’s contention that the gun was in his left hand is also unsupported. On cross-examination, defense counsel asked Nicholas whether he told the police that defendant held the gun in his nondominant left hand. Nicholas never answered the question. A tape of the interview and a transcript were presented to the jury. However, neither the tape nor the transcript is in the appellate record. Appellate review is limited to evidence that was before the trial court and is in the appellate record. (See People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1.) Since Nicholas testified at trial that defendant held the gun in both hands, defendant’s claim is without support.

Defendant’s expert testified that the plastic bag either could have been over the revolver or at its side during the shooting. We will not substitute our judgment for the jury’s decision to interpret this evidence to support defendant’s guilt rather than his innocence. (See People v. Perez (1992) 2 Cal.4th 1117, 1124.)

The fact that defendant did not state an intent to kill only means the prosecution had to make its case through circumstantial evidence. (Lashley, supra, 1 Cal.App.4th at p. 945-946.) There is ample circumstantial evidence supporting intent to kill. Defendant tried to hit his victim in the head with a metal baseball bat. After the shooting, defendant fabricated a story to the emergency operator, saying the gun accidentally went off when both he and Nicholas reached for it in the dog biscuit box during their fight. Most importantly, defendant drew a gun on the unarmed Nicholas, and did not put it down until he shot Nicholas in the chest at close range.

Intent to kill does not require substantial deliberation. “[I]f the jury found defendant’s use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferred, even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance.” (People v. Arias (1996) 13 Cal.4th 92, 162.) Therefore, defendant’s raised eyebrows and wide eyes do not negate the evidence supporting an intent to kill.

Defendant was not in a physical struggle with defendant when he shot Nicholas, so the jury could reasonably conclude that the shooting was purposeful. Since firing a .38 caliber pistol at the chest at close range is unquestionably using a lethal weapon with lethal force, there was substantial evidence of intent to kill.

Evidence of defendant’s motive supports our conclusion. Nicholas spitting on him, even if accidental, was a motive for the killing when viewed in the context of the extended altercation between the two. A motive for shooting the victim is probative of defendant’s intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 741.) While “motive alone may not always fully explain the shooter’s determination to shoot at a fellow human being with lethal force” (ibid.), the evidence of defendant’s motive is additional evidence of intent to kill.

Our “sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Lashley, supra, 1 Cal.App.4th at p. 946.) Substantial evidence supports the jury’s verdict that defendant intended to kill Nicholas.

Discussion

The judgment is affirmed.

HULL , J.

We concur:

SIMS , Acting P.J.

DAVIS , J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.