P. v. Tomilson

Filed 7/14/08 P. v. Tomilson CA

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Keith Everett Tomlinson appeals the judgment following a court trial in which he was convicted of seven counts of attempted first degree murder (Pen. Code,^[1]

187, subd. (a)/664, subd. (a)); 14 counts of assault with a deadly weapon, a rock ( 245, subd. (a)(1)); and assault on a peace officer ( 245, subd. (c)). The court also found true allegations on the attempted murder counts that Tomlinson personally and intentionally discharged a firearm ( 12022.53, subd. (c)). After a separate trial, the court also found that Tomlinson was not legally insane when he committed the offenses.^[2] He was sentenced to a total state prison term of 153 years plus 49 years to life. He challenges the sufficiency of the evidence supporting his convictions for attempted murder and assault with a deadly weapon, and the trial court's finding that he was not legally insane when he committed the offenses. We affirm.

FACTS

I. The Guilt Phase

A. The Assaults

On the afternoon of December 14, 2003, Danine Adams was driving northbound on Highway 101 in Santa Barbara County along with passenger Kathy Karam when she saw Tomlinson standing next to the guardrail at the off ramp to El Capitan Ranch Road. Adams slowed to avoid hitting Tomlinson, who appeared as if he were about to run into the street. Instead, he threw a brick or piece of pavement at Adams' vehicle, knocking off the side mirror.

On the afternoon of December 25, 2003, the Schmidt family (Joe and Angela and their children Werner and Thea) were driving northbound at the same location when Tomlinson "very aggressively" threw a large rock at them. The rock hit the hood of the car, although it appeared to Joe as if Tomlinson was aiming for the windshield. Approximately 10 minutes later, Tomlinson threw a large object at a patrol car driven by California Highway Patrol Officer Corey Crandall at the same location. Tomlinson appeared to be aiming for the windshield, but the object landed on the median of the highway. Officer Crandall drove to where Tomlinson was standing and asked him why he had thrown something at him. Tomlinson responded, "I don't like you fuckers. If you're going to arrest me, arrest me now or let me go home." The officer smelled alcohol on Tomlinson's breath and arrested him for public intoxication.

On the afternoon of March 5, 2004, Greg Willemsen was driving at the same location when he saw a rock coming toward him from the side of the highway. The rock barely missed the windshield and hit the passenger side door, caving it in. Willemsen pulled over and looked for the person who had thrown the rock, but did not find anyone. Approximately 30 minutes later, Tomlinson threw a rock at a truck driven by Jorge Villarruel at the same location, shattering the windshield. About two hours later, Tomlinson threw another large rock at a car driven by Tonie Gonzalez in which Susan Rubalcaba and Anthony, Alexandria and Donny Argudo were travelling as passengers. The rock hit the hood of the vehicle. Approximately a half hour later, Tomlinson threw a rock at a vehicle driven by Shanna Castro, hitting the bottom of the windshield on the driver's side.

B. The Attempted Murders

Sometime during the day of the final assaults, Tomlinson purchased a .22-caliber rifle from a store in Santa Barbara. When Tomlinson took possession of the rifle on March 16, 2004, he told the salesperson, "I've got plenty of ammo." At about 6:30 p.m. that same day, Tomlinson returned to the El Capitan Ranch Road off ramp and shot at least nine times at a tractor-trailer driven by Carlos Garcia Gutierrez, who was traveling in the northbound slow lane. Three of the bullets hit the driver's side of the windshield, and two bullets were subsequently recovered from the passenger compartment. At approximately 7:00 p.m., Tomlinson shot at Charles Hickey as he was travelling southbound in a Southern California Edison truck. The bullet entered the driver's side of the windshield and hit the seatbelt holder, barely missing his shoulder.

On the afternoon of the following day, Tomlinson returned to the same location and fired at Michael Weza as he was travelling in the northbound slow lane. Alan Ogozalek was sitting in the front passenger seat. Weza later discovered a bullet hole on the passenger side of his vehicle. Approximately two hours later, Tomlinson fired at Anthony and Debra Cota as they were travelling past the El Capitan Ranch Road off ramp in the northbound slow lane. The shot left a bullet hole about 18 inches behind the door to the front passenger seat where Debra had been sitting. Shortly thereafter, Tomlinson fired at a truck driven by Charles Cromby in the same lane at the same location, hitting the rear quarter panel on the passenger side. Sheriff's deputies who were conducting surveillance at a nearby location heard the shots and shut down the highway.

Tomlinson's home was searched pursuant to a warrant the next day. He lived in a trailer on private property near the El Capitan Ranch Road exit. The rifle used in the shootings was found in a vehicle parked near the residence, and .22-caliber shell casings were found on the ground. Officers also found an empty box of .22-caliber bullets, and an air pistol with the words "death" and "kill" written on the sides. Numerous casings found near the El Capitan Ranch Road off ramp were determined to have been fired from the rifle found at Tomlinson's residence.

While Tomlinson was being held in the Santa Barbara County jail, he told a fellow inmate that he had shot at people in vehicles and claimed he was a good shot. Tomlinson also told the inmate that he kept his truck parked nearby when he committed the offenses so that he could easily escape to his nearby property. Tomlinson also said that he was going to feign an insanity defense in order to avoid prison.

The Sanity Phase

Psychiatrist and Forensic Psychologist Teresa Ramirez Boulette testified on behalf of Tomlinson. Based on her interview of Tomlinson in February 2006 and discussions with his relatives, Dr. Boulette concluded that he was suffering from paranoid schizophrenia at the time he committed the offenses in 2003 and 2004, which rendered him unable to understand that his actions were legally or morally wrong. The doctor acknowledged, however, that Tomlinson had no prior diagnosis of paranoid schizophrenia, and that doctors at Patton State Hospital determined he had malingered symptoms of mental illness during testing. She also acknowledged she did not conduct any tests to determine whether Tomlinson was malingering when she interviewed him. She further admitted that she had not read all of the police reports generated in the case, that Tomlinson never told the police he was hearing voices, and that he seemed to understand what was happening at the time of his arrest and knew he should not say anything to incriminate himself.

Psychiatrist Don Slutzky interviewed Tomlinson in jail on February 4, 2006. Dr. Slutzky diagnosed Tomlinson as suffering from schizophrenia, but concluded that he understood the nature of his actions and knew right from wrong.

On September 12, 2006, forensic psychiatrist David Glaser interviewed Tomlinson for approximately four and a half hours. Dr. Glaser explained that he did not interview Tomlinson's relatives because such information is unreliable and tends to be biased in favor of the family member. Based on the interview, the doctor concluded that Tomlinson did not suffer from schizophrenia because he communicated and reasoned in ways that were inconsistent with the diagnosis. According to Dr. Glaser, Tomlinson was malingering symptoms of psychosis. For example, while Tomlinson complained that he suffered hallucinations and memory loss, he was able to engage in a logical, coherent and timely discussion about football. Tomlinson also exhibited symptoms such as hearing voices only when he was talking about something significant, such as his culpability for the offenses. He also appeared to be "measuring his words" in responding to questions about the charges, which demonstrated his appreciation of the difference between right and wrong. Tomlinson also admitted to Dr. Glaser that he understood it was wrong to throw rocks and shoot at cars.

Dr. Glaser rejected Dr. Boulette's diagnosis of paranoid schizophrenia because it was based entirely on "the unreliable history provided by biased individuals who would have a motivation to provide Ms. Boulette with data that would support that psychotic symptoms were overwhelming to him and driving his behavior." The doctor also reasoned that Tomlinson's statements to Officer Crandall indicated that his crimes were motivated by anger and not psychosis, and further demonstrated his understanding that his conduct was unlawful. Tomlinson's statements during his police interrogation approximately six hours after the last shooting provided further support for the doctor's conclusion that Tomlinson was not legally insane when he committed the offenses. For example, Tomlinson's refusal to answer questions on the ground that he might incriminate himself demonstrated that he was not suffering from psychotic thinking and that he understood the difference between right and wrong and appreciated the nature and quality of his actions.

DISCUSSION

I.

The Attempted Murder Convictions

Tomlinson contends the evidence was insufficient to support his convictions on all seven counts of attempted first degree murder. He argues that the court as trier of fact could not have reasonably inferred that he had the specific intent to kill the drivers and passengers he shot at because his "targets were completely random" and he "did not know who the individual drivers were, nor did he have any dispute with any of the victims, with their vehicles, or with any aspect of the government or any other entities involved with highways and transportation." He also challenges the sufficiency of the evidence supporting the court's finding that he specifically intended to kill passengers Alan Ogozalek and Debra Cota because he fired only one shot at the cars in which they were travelling.

In assessing the sufficiency of evidence to support a conviction, we review the evidence and draw all reasonable inferences therefrom to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could have found guilt beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) We do not reweigh the evidence nor do we determine witness credibility. (Ibid.) The standard is the same for circumstantial evidence of guilt. (Ibid.)

The evidence, viewed in the light most favorable to the judgment, is sufficient to support the court's finding that Tomlinson had the specific intent to kill all seven of his victims. In each instance, Tomlinson stood on the roadside and fired a rifle at the windshield or front passenger compartment of vehicles as they travelled by him. All but one of those vehicles were directly adjacent to the location where Tomlinson was positioned. While the other was travelling in the southbound lanes, Tomlinson shot at that vehicle with enough accuracy to pierce the windshield and hit the driver's seatbelt holder. Contrary to Tomlinson's contention, the fact that he used a .22-caliber rifle without a scope does not undermine the court's finding that he had the specific intent to kill. (See People v. Lashley (1991) 1 Cal.App.4th 938, 945 [recognizing that the "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"].) While he claims it is unlikely that any of his targets would have been hit given the high rate of speed at which the cars were travelling, his marksmanship skills are irrelevant to the determination whether he had the requisite intent to kill.

The evidence is also sufficient to support the court's finding that Tomlinson had the specific intent to kill not only the drivers of the vehicles at which he fired, but also their passengers. Because the passengers and drivers were both in Tomlinson's direct line of fire, the court could infer that he intended to kill both of them even though he fired only one shot. People v. Smith (2005) 37 Cal.4th 733, is instructive. In Smith, the defendant fired a single bullet through the back window of a car with knowledge that the driver's infant son was in the car seat directly behind her. The court found sufficient evidence supporting the defendant's convictions on two counts of attempted murder, reasoning that "defendant acted with intent to kill both victims" when he shot at them with a large-caliber bullet from close range knowing each was directly in his line of fire. (Id., at p. 743.) While Tomlinson asserts that Smith was incorrectly decided because it applied "a form of disguised 'implied malice' as the basis for finding the concurrent intent to kill as to multiple victims in a moving vehicle," we will not disregard the decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)^[3]

II.

The Assault Convictions

Tomlinson also claims the evidence is insufficient to support his convictions for assault with a deadly weapon because (1) the rocks he threw at the vehicles in which his victims were travelling do not qualify as deadly weapons, and (2) he did not have the present ability to inflict injury on his victims because they "were encased in a steel vehicle moving at a high rate of speed, and thus not in any danger of being hit by the rocks." Drawing all reasonable inferences from the evidence (People v. Snow, supra, 30 Cal.4th at p. 66), we discern no merit in either point.

Substantial evidence supports the court's finding that the rocks Tomlinson threw at the vehicles in which his victims were travelling constituted deadly weapons as contemplated by section 245, subdivision (a)(1). "In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) Every rock that Tomlinson threw was described as large. One was compared to a large cantaloupe or small watermelon, while another was characterized as the size of a softball. Two were thrown with enough force to shatter the windshield they hit. Others caved in a passenger side door and broke off a side mirror. While the rock Tomlinson threw at Officer Crandall did not hit his patrol car, the officer testified that it was so large and heavy that Tomlinson had to throw it like a shot-put. Because all of the rocks either caused substantial damage to the vehicles that they hit or were capable of causing such damage, they were plainly capable of causing great bodily injury to their intended targets. Accordingly, the court as trier of fact could

reasonably conclude that all of the rocks Tomlinson threw qualified as deadly weapons. (See People v. White (1963) 212 Cal.App.2d 464, 465.)

Tomlinson contends that his victims were in no danger of being hit by the rocks. We conclude otherwise. While he correctly notes that an assault conviction requires a showing that the defendant had the "present ability" to commit a violent injury against his victim ( 240), that showing was made here. As we have explained, a large

rock thrown with enough force to shatter a windshield, cave in a door, or break off a side mirror would undoubtedly inflict great bodily injury on a person. The fact that none of the rocks actually hit their intended targets is irrelevant to the determination whether Tomlinson had the present ability to inflict actual injury. (People v. Aguilar, supra, 16 Cal.4th at p. 1028.) Moreover, the fact that the victims were travelling at a high rate of speed arguably increased the likelihood of injury. As the People note, "[t]he faster the cars were moving, the stronger the impact of the rocks."

In any event, even if we were to accept Tomlinson's proposition that his victims were effectively "safe" from actual physical contact with the rocks, the court as trier of fact could reasonably infer that Tomlinson intended to inflict great bodily injury on the drivers and their passengers, and had the present ability to do so, by causing the drivers to lose control and crash. (See, e.g., People v. Spence (1970) 3 Cal.App.3d 599, 604, disapproved on another ground in People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 8 [substantial evidence supported three counts of assault with a deadly weapon where the defendant fired two shots into a passing car that had three occupants because "it was not unreasonable for the jury to infer that in firing two pistol shots into the automobile, defendant was attempting violent injury upon all three passengers, whether by a single bullet injuring more than one person or by shooting the driver, thereby causing the car to go out of control, injuring all occupants"].) Accordingly, the evidence is sufficient to support all 14 of Tomlinson's convictions for assault with a deadly weapon.

III.

The Sanity Finding

Tomlinson challenges the sufficiency of the evidence supporting the court's finding that he was not legally insane when he committed the offenses. A defendant asserting an insanity defense has the burden of proving by a preponderance of the evidence that a mental disease or defect rendered him or her "incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense." ( 25, subd. (b); Evid. Code,  522; People v. Severance (2006) 138 Cal.App.4th 305, 321.) Because the defendant bears the burden of proving that he or she was legally insane, "before we can overturn the trier of fact's finding to the contrary, we must find as a matter of law that the court could not reasonably reject the evidence of insanity." (People v. Skinner (1986) 185 Cal.App.3d 1050, 1059.) Accordingly, we must uphold the court's finding if there is any reasonable hypothesis upon which it could have been based. (Severance, supra, at p. 319.)

On this record, we cannot conclude as a matter of law that the court had no reasonable basis for rejecting Tomlinson's proffered evidence purporting to prove that he was insane when he committed the offense. Two of the three doctors who interviewed Tomlinson concluded that he was not legally insane, and those conclusions are supported by substantial evidence that we need not reiterate here. Dr. Glaser also provided sound reasons for the court to discredit Dr. Boulette's conclusions to the contrary, and the circumstances surrounding the offenses provide further support for the court's finding. For example, when Tomlinson was confronted by Officer Crandall, he effectively acknowledged that he was aware that he was engaging in criminal behavior. Moreover, he admitted to his cellmate that he was going to feign symptoms in an effort to establish an insanity defense. The fact that he had parked his car nearby in order to facilitate his escape provides further support for the conclusion that his actions were consciously driven and that he understood the difference between right and wrong. Because all of this evidence provides a reasonable hypothesis upon which the court could find that Tomlinson was not legally insane when he committed the offenses, its finding in that regard must be upheld on appeal. (People v. Severance, supra, 138 Cal.App.4th at p. 319.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Clifford R. Anderson III, Judge

Superior Court County of Santa Barbara

______________________________

Richard C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.

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

^[2] Tomlinson pled not guilty by reason of insanity and waived his right to a jury trial after a jury found him mentally competent to stand trial.

^[3] In light of our conclusion, we need not address the People's contention that Tomlinson's convictions for the attempted murder of passengers Alan Ogozalek and Debra Cota can be sustained on the alternative theory that Tomlinson intended to create a "kill zone." (See, e.g., People v. Bland (2002) 28 Cal.4th 313, 329; see also People v. Smith, supra, 37 Cal.4th at p. 746, fn. 3 [expressly declining "to decide under what factual circumstances, if any, the firing of a single bullet might give rise to multiple convictions of attempted murder under Bland's kill zone rationale"].)