P. v. Walton

Filed 7/25/06 P. v. Walton CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Allan J. Preckel, Judge. Affirmed.

A jury convicted Jarold Andre Walton of attempted murder of Gregory Hunter (Pen. Code, §§ 187, subd. (a), 664),^[1] assault with a firearm (§ 245, subd. (a)(2)), and possession of a firearm by an ex-felon (§ 12021, subd. (a)). The jury also found true Walton personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), personally inflicted great bodily injury (§ 12022.7, subd. (a)), and suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and two prior prison term convictions (§ 667.5, subd. (b)). The court sentenced Walton to a determinate term of 11 years (composed of the nine-year upper term for attempted murder and two consecutive one-year terms for the prison priors), plus a consecutive indeterminate 25-year-to-life term for the firearm discharge enhancement, and imposed a concurrent three-year term for the possession of a firearm by an ex-felon offense.

Walton contends on appeal that the trial court erred by (1) denying his request for an instruction on attempted voluntary manslaughter as a lesser included offense to the charge of attempted murder and (2) imposing a concurrent term for the possession of a firearm by an ex-felon offense.^[2]

I

FACTS

A. Prosecution Case

Hunter and Ms. Jackson had been involved in a romantic relationship. At the time of the shooting, Walton and Ms. Jackson were romantically involved.

A few days before the shooting, Jackson came to the apartment building where Hunter lived. Jackson became involved in a verbal confrontation with Ms. Torres, who was then dating Hunter, which escalated into a physical fight. After the fight, Jackson got into her car, in which Walton was waiting. Jackson was angry at Walton for not coming to her aid, and they scuffled before leaving.

On the evening of September 29, 2004, at approximately 11:00 p.m., Hunter was outside his apartment building in the company of Torres and three other females. They saw a car, which Hunter and Torres recognized belonged to Jackson, being driven by Walton. The car passed the apartments, turned around and pulled into a parking lot on an embankment, higher than Hunter's group. Its headlights remained on as it faced the group. After a minute, the car backed out of the parking lot, and reparked on the street near them. Walton called out to Hunter from the car and Hunter, thinking Walton wanted to talk about their prior problems,^[3] approached the car. When Hunter was six or seven feet away, Walton got out, reached into the vehicle, pulled out a shotgun and fired at Hunter.

Hunter turned to run when he first saw the shotgun, but heard a "pop" and fell. He did not immediately realize he had been shot. Hunter heard several more pops. He then got up and ran to his apartment. Everyone else had already fled.

When he got to his apartment, the door was locked. Hunter's brother-in-law (Satchor), who was inside Hunter's apartment when the shots were fired, came outside carrying a gun. Satchor fired the gun into the air because he was angry. Torres called 911.

Police found two expended shotgun casings, a blood trail from the street to Hunter's apartment, and six casings from a small caliber handgun along a portion of the blood trail.

B. Defense Case

The defense was alibi. Walton claimed he had arrived at Jackson's apartment around 3:00 p.m. and did not leave the house thereafter. Walton and Jackson were married the following day. Jackson, Jackson's mother-in-law, two of Jackson's children, and a girlfriend of Jackson's son all testified they did not see Walton leave Jackson's apartment during the afternoon and evening of September 29.

II

ANALYSIS

A. Walton's Requested Instruction on Attempted Voluntary Manslaughter

Walton requested a jury instruction on attempted involuntary manslaughter, a lesser included offense of the charged attempted murder offense (People v. Montes (2003) 112 Cal.App.4th 1543, 1547-1549), on the theory there was evidence Walton shot Hunter either in a heat of passion upon adequate provocation or while holding an unreasonable but good faith belief he needed to act in self-defense. (People v. Blakeley (2000) 23 Cal.4th 82, 87-88 [crime of murder is reduced to voluntary manslaughter when defendant lacks malice because he acted in "sudden quarrel or heat of passion" or acted in "unreasonable self defense"].) The defense argued the expended shell casings from the small caliber handgun found near the incident would permit a reasonable trier of fact to conclude Walton was confronted by an armed Hunter, and Walton reacted by shooting at him. The court rejected the requested instruction because this scenario was "total speculation."

A court must instruct on lesser included offenses when there is substantial evidence from which a trier of fact could reasonably conclude the defendant is guilty of the lesser but not the greater offense. (People v. Memro (1995) 11 Cal.4th 786, 871; People v. Edwards (1985) 39 Cal.3d 107, 116.) Although doubts as to the sufficiency of the evidence to support instructions should be resolved in favor of the defendant (People v. Flannel (1979) 25 Cal.3d 668, 685), a court need not instruct on defenses or lesser included offenses unless there is substantial evidence of the lesser included offense, that is, "evidence from which a rational trier of fact could find beyond a reasonable doubt" that the defendant committed the lesser offense. (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) " 'Speculation is an insufficient basis upon which to require the court to give an instruction on a lesser included offense' " (People v. Sakarias (2000) 22 Cal.4th 596, 620), and therefore the mere "existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." (People v. Breverman (1998) 19 Cal.4th 142, 162.) There must be substantial evidence that would permit a reasonable jury to find the defendant is guilty of a lesser but not the greater offense (ibid.), and the courts have concluded substantial evidence must consist of " ' "evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." [Citation.]' " (People v. Cunningham (2001) 25 Cal.4th 926, 1008 [no duty to give lesser included offense instruction requested by defense if theory lacked substantial evidentiary support].)

The trial court below concluded there was no evidence of sufficient substantiality to permit a jury to conclude Walton was guilty of the lesser but not the greater offense. The only evidence supporting Walton's hypothesis was the shell casings from a small caliber handgun found near Hunter's apartment of the same caliber as ammunition found in Hunter's refrigerator. Even assuming the jury rejected the only proffered explanation for those casings (Hunter's brother-in-law fired several shots into the air after Walton shot Hunter), it would require speculation for the jury to conclude the person who fired the handgun was Hunter. More importantly, to support a finding of either "heat of passion" or "unreasonable self-defense," the jury would be required to begin with a foundation of unsupported speculation (Hunter was responsible for firing the gun from which the shell casings originated) and then construct an edifice of happenstance supported only by the presence of shell casings. The jury would have to speculate that Hunter happened to be armed when Walton arrived and Walton, although happening to have his shotgun with him, chose not to carry it with him when he got out of his car to confront Hunter.^[4] The jury would also have to speculate that Hunter saw Walton approaching, reacted to Walton's approach by brandishing the handgun, Walton then retreated to his car while Hunter pursued him, Walton (then in fear for his safety) had time to reach in and retrieve his shotgun and shoot at (and hit) Hunter to ward off his threat, and only then did the wounded Hunter return fire at Walton but without the fired bullets leaving any impact craters on surrounding vehicles or structures. We are convinced the trial court correctly concluded the requested instruction was based on speculation.

B. The Sentence

Walton asserts the court erroneously imposed a concurrent sentence for his section 12021, subdivision (a) conviction for possession of a firearm by an ex-felon and instead was required to stay that sentence under section 654.

Section 654 bars double punishment for multiple offenses that constitute one indivisible transaction. (People v. Hicks (1993) 6 Cal.4th 784, 789.) However, a defendant may be separately punished for offenses that share common acts and are part of an indivisible course of conduct where the defendant entertained multiple criminal objectives. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.) Whether a course of conduct is indivisible depends on the defendant's intent and objective rather than the temporal proximity of the offenses. (People v. Hicks, supra, at p. 789; People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

In a section 654 analysis, the defendant's intent and objective are factual questions to be determined by the trial court. (People v. Green, supra, 50 Cal.App.4th at p. 1085.) We will affirm the court's findings if there is substantial evidence to support them. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We review the trial court's findings " ' " in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence." [Citation.]' [Citation.]" (Id. at pp. 1312-1313; People v. Green, supra, at p. 1085.)

Whether a violation of section 12021 constitutes a transaction divisible from the offense in which the defendant uses the firearm depends on the facts and evidence of each individual case. (People v. Bradford (1976) 17 Cal.3d 8, 22.) Multiple punishment is improper where the evidence shows "at most that fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense." (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412.) However, separate punishment for the firearm possession is proper "when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm." (People v. Jones, supra, 103 Cal.App.4th at p. 1145.)

Here, the evidence supports the conclusion Walton possessed the shotgun before arriving at the apartment building. Hunter testified he saw Walton arrive in the car, and Walton emerged from the car and then retrieved the shotgun from the car. Because the trial court could find Walton possessed the shotgun before he arrived, his violation of section 12021 was complete before he parked his car. (People v. Jones, supra, 103 Cal.App.4th at p. 1147.) Because his gun possession preceded the attempted murder and was not simply simultaneous with the attempted murder, the court did not violate section 654 by imposing terms for both the gun possession and the attempted murder. (People v. Ratcliff, supra, 223 Cal.App.3d at p. 1413; People v. Jones, supra, at p. 1147.)

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Real Estate Attorney.

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

^[2] Walton also asserts on appeal it was error to impose the upper term for the attempted murder conviction under Blakely v. Washington (2004) 542 U.S. 296. However, Walton concedes this contention has been resolved adversely to him by People v. Black (2005) 35 Cal.4th 1238, and raises the argument to preserve the claim for federal review.

^[3] In addition to the confrontation between their respective girlfriends, Hunter and Walton had a prior encounter when Hunter was at Jackson's house and Walton discovered Hunter in Jackson's bathroom; Hunter was using one of Walton's razors to shave. Hunter stated it was not a "happy meeting."

^[4] Had Walton confronted Hunter while displaying the shotgun, he could not have relied on either provocation or heat of passion (see People v. Johnston (2003) 113 Cal.App.4th 1299, 1312 [instigator of fight cannot mitigate crime from murder to manslaughter by claiming heat of passion]), or self-defense principles (see 1 Witkin & Epstein, Cal. Criminal Law (3d Ed. 2000) Defenses § 66, p. 401 [right to defend oneself is unavailable "to one who sought a quarrel with the fraudulent intent to force a deadly issue and thus creates a real or apparent necessity to assault another"]) to reduce the offense from attempted murder to attempted manslaughter.