PEOPLE v. SCOTT C. ANZALONE

Filed 7/13/06 (Opn. on transfer from Supreme Court)

CERTIFIED FOR PARTIAL PUBLICATION^[1]

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed in part, reversed in part.

Jeffrey J. Stuetz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster, David Delgado-Rucci and Barry J. T. Carlton, Deputy Attorneys General, for Plaintiff and Respondent.

Scott C. Anzalone was convicted of four counts of willful, deliberate and premeditated attempted murder, grossly negligent discharge of a firearm, being a felon in possession of a firearm, being a felon in possession of ammunition and attempted vehicle theft. As to the attempted murder and firearm discharge offenses, the jury made true findings on various firearm and weapon use allegations. Anzalone was sentenced to a prison term of 42 years and 6 months plus two consecutive life terms. He appeals, arguing instructional error with regard to his defense of alibi, prosecutorial misconduct, instructional error concerning the intent element of attempted murder, ineffective assistance of counsel and sentencing error.

After the filing of the original opinion in this case, our Supreme Court granted review and ordered the case held pending decision in People v. Smith (2005) 37 Cal.4th 733. After deciding Smith the court transferred the matter to this court for reconsideration.

FACTS

A. Prosecution Case

1. Newport Avenue

On July 11, 2002, Che Love, Joe Diez, Kelly McGuire and Paul Foster went surfing. When they finished, Love and Diez drove in Love's car to the home of Pete Krudwig on Newport Avenue in Cardiff to drop off their boards. At approximately 5:30 or 6:00 p.m., Love parked his car in an alley at the Krudwig residence and, since he planned to leave the car unattended for only a moment, left the key in the ignition. After the men took their surfboards to the house, Love returned to the alley to find a man later identified as appellant getting into Love's car.

Love ran to the car as appellant tried to start it. Love struck appellant and was able to switch off the car's ignition and yell for help. As Love wrestled with him, appellant stated that he had mistaken the car for someone else's. Krudwig, McGuire and Diez came to Love's assistance. As appellant was getting out of the car through the passenger side widow, McGuire kicked him in the face. Appellant ran off to the south leaving behind a walkie-talkie and one of his shoes.

As Love, Krudwig, Diez and McGuire discussed what had happened, a silver convertible Mitsubishi Eclipse driven by appellant came down the alley from the south at 15 or 20 miles per hour. As the car drove by, appellant pointed a gun at the men. Someone yelled "gun" and the men dove for cover. As he passed, appellant fired two shots across the passenger seat at the men. The first shot hit Love's car just above his head, the second hit the car's trunk in the area where the other men were attempting to find cover. Diez believed someone was in the passenger seat of the car reclined below the level of the door. Within one to three minutes after the shots, a call was placed to the sheriff's office. Records indicated the sheriff's office received a call concerning the shooting at 6:06 p.m.

Several months after the shooting, Love, Krudwig and Diez independently viewed a photographic line-up. Each man picked out the photograph of appellant and was 100 percent sure he was the man who attempted to steal Love's car and shot at them. Each of the men identified appellant in court. Love and Krudwig testified the man who attempted to steal Love's car had tattoos on his arms. Appellant has such tattoos.

A month before the shooting incident, on June 4, 2002, a black-over-silver Mitsubishi Eclipse convertible belonging to Patricia Bostrom was stolen from her garage in Bonita. Karl Fousek, manager of Rancho San Diego Self-Storage, a storage facility in Spring Valley, saw appellant, who he knew, driving a black-over-silver Mitsubishi Eclipse convertible to the storage facility about three times a week between September and December 2002.

On December 16, 2002, appellant and another person were arrested at Rancho San Diego Self-Storage. The other person was driving Patricia Bostrom's Mitsubishi Eclipse.

Love, Krudwig and Diez testified that Bostrom's Eclipse convertible looked very much like the car from which shots were fired at them.

2. Requeza Street

At approximately 5:30 p.m., on the day of the Newport Avenue shooting, Sarah Hagaman, the manager of an apartment complex on Requeza Street in Encinitas, saw a man standing by a truck belonging to one of her tenants, Charles Manna. The truck's door was open. The man standing by the truck smiled and waved at her. The man disappeared but shortly returned as the passenger in a small sports car. The man got into Manna's truck and the two vehicles departed quickly.

Hagaman went to Manna's apartment and told him what had occurred. Manna had given no one permission to take his truck. Manna, who was recovering from surgery, went downstairs, saw his truck was missing, walked back upstairs to his apartment, called the police and reported the theft. The call was received by the sheriff's office at 6:09 p.m.

Hagaman was shown a photograph of Bostrom's Eclipse and testified it looked similar to the sports car in which the man who took Manna's truck was riding. Hagaman testified that appellant looked like the man who drove off in Manna's truck. After seeing appellant smile in court, she was almost certain he was the man.

It is 2.5 miles from the apartment building where Manna's truck was taken to the location of the shooting near Newport Avenue. Driving at a legal speed, the distance can be covered in five minutes.

B. Defense Case

Appellant's defense was alibi. He claimed he could not have attempted to steal Love's car or fire shots at Love and his friends because at that time he was stealing Manna's truck. Appellant's sister Brandi Harris testified that in July 2002 appellant was living with her. Harris testified that at some point while he was living with her, appellant brought home tools. Manna identified those tools as coming from his truck. Harris testified that in July 2002 appellant had an injured knee and could not run.

Harris testified appellant wore smaller shoes than the one left at the shooting site. At trial, appellant tried on the shoe. His big toe came to one to one and one-half inches from the tip of the shoe.

DISCUSSION

A. Instruction on Other Crimes Evidence

The trial court instructed in the terms of CALJIC No. 2.50 that evidence was presented to show appellant committed uncharged crimes. The jury was told that if it found such crimes, it could use that finding for the limited purpose of determining appellant's intent or motive or to prove his identity as the perpetrator of the charged offenses. The jury was instructed in the terms of CALJIC No. 2.50.1 that within the meaning of CALJIC No. 2.50, the prosecution had the burden of proving by a preponderance of the evidence that appellant committed the uncharged crimes.

Appellant argues that under the unusual facts of this case, the giving of CALJIC No. 2.50 deprived him of his alibi defense. Appellant reasons as follows: his defense of alibi was based on his admission that he stole Manna's truck. He claimed there was insufficient time for him to commit both that crime and the charged crimes. He notes, however, that CALJIC No. 2.50 instructs the jury that the evidence of other crimes can be used by the jury only to show intent, or motive or to prove that appellant committed the charged offenses and only if the uncharged crimes are proved by the prosecution by a preponderance of the evidence. Appellant notes he was not required to prove an alibi by any standard of proof but merely to raise a reasonable doubt of his presence at the scene of the charged crimes. He observes, however, that CALJIC No. 2.50 tells the jury evidence of other crimes can only be used for certain limited purposes and only if proved to have occurred by a preponderance of the evidence. Thus, appellant argues, the jury was effectively told it could not use the other crimes evidence in considering appellant's claim of alibi and even if it could it could do so only if the uncharged crimes were proved by a preponderance of the evidence.

"As Chief Justice Rehnquist has observed: 'Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.' [Citation.]" (People v. Williams (1995) 40 Cal.App.4th 446, 457.)

A common sense understanding of all the instructions in the context of the prosecution and defense cases would not deny appellant his alibi defense. The jury would readily understand that the evidence, as presented by both parties, of appellant's theft of Manna's truck was offered by the prosecution for purposes different from those of the defense. The fact appellant was committing a theft at Manna's apartment complex was only incidental to his alibi defense. What was crucial was that, in the defense's view, if appellant was at Manna's apartment complex, for whatever purpose, at the time he was reported to be there, he could not have been present to commit the charged offenses. Thus, as a matter of common sense, CALJIC No. 2.50, an instruction clearly concerned with the use of other crimes evidence by the prosecution to prove guilt, did not affect appellant's alibi defense in the least. It simply did not apply.

B. Prosecutorial Misconduct

Appellant argues the prosecutor committed misconduct during argument. A component of appellant's defense was that the shoe left behind by the shooter was a larger size than appellant wore. During argument, the prosecutor noted that appellant was an admitted thief, that he probably stole the shoes and that thieves are not always able to get exactly the items they want. Appellant did not object but on appeal claims the argument was misconduct because there was no evidence appellant stole the shoes and that such an argument suggested appellant was an habitual thief.

During opening argument, the prosecutor noted that in the presence of the jury appellant tried on the shoe. The prosecutor admitted while it might not have been appellant's size, he was able to walk in the shoe without it flopping about. The prosecutor then argued that appellant did not have a "real job," that he took what he wanted. The prosecutor suggested that appellant might have found the shoes in a car, and that thieves are not always able to find exactly what they need. The prosecutor stated: "They might just get a shoe they can wear but falls off in a struggle. Ladies and gentleman, that is what we have got here."

Except in situations not applicable here, the failure to object to claimed acts of prosecutorial misconduct waives the issue on appeal. (People v. McDermott (2002) 28 Cal.4th 946, 1001.) There was no objection in this case and the claim of misconduct is waived. In any event, assuming misconduct, there was no prejudice. The comments of the prosecutor were brief and concerned a tangential issue. The danger was in the suggestion that appellant was a thief. Appellant readily and repeatedly admitted he was a thief.

C. Concurrent Intent

Appellant argues that three of his four convictions for attempted murder should be reversed. Citing People v. Bland (2002) 28 Cal.4th 313 (Bland), he argues the trial court erred when it failed sua sponte to instruct that in order to find him guilty of a count of attempted murder, it was necessary the jury find that he had the specific intent to kill the person named as the victim in that count. Appellant argues this error was exacerbated when in argument the prosecutor told the jury it was unnecessary to find such intent if the named victim was in the "zone of danger" created when appellant fired gunshots indiscriminately at a group of people.

As noted, after the filing of the original opinion in this case, our Supreme Court granted review and ordered the case held pending decision in People v. Smith, supra, 37 Cal.4th 733. After deciding Smith the court transferred the matter to this court for reconsideration.

1. Law

"The crime of attempt occurs when there is a specific intent to commit a crime and a direct but ineffectual act done towards its commission. [Citation.] ' "An attempt connotes the intent to accomplish its object, both in law . . . and in ordinary language." [Citation.]' [Citation.] The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime. [Citation.] Where the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown. [Citation.]" (People v. Bonner (2000) 80 Cal.App.4th 759, 764; see also 1 Witkin & Epstein, Cal. Criminal Law, Elements (3d ed. 2000) §§ 54, 58-60.)

As noted, an attempt can occur even though the ultimate step toward commission of the intended crime never occurs. (See People v. Bonner, supra, 80 Cal.App.4th at pp. 764-767 [two attempted robberies occurred even though defendant never came in contact with victims]; People v. Morales (1992) 5 Cal.App.4th 917, 925-927 [attempted murder occurred even though no shot was fired].)

In Bland the defendant was a gang member. Wilson, a member of another gang, and Morgan and Simon, apparently not gang members, drove up to Bland and a companion. Bland approached Wilson, who was driving, spoke to Wilson and then started shooting into the vehicle. As Wilson drove off, Bland and his companion fired at the car. The car crashed. Wilson died. Morgan and Simon were badly wounded. It was impossible to determine who fired the shots that hit Morgan and Simon. Bland was convicted of the murder of Wilson and two counts of the attempted premeditated murder as to Morgan and Simon. (Bland, supra, 28 Cal.4th at p. 318.)

The prosecutor's theory was that Bland could be convicted of attempted murder based either on the finding that he intended to kill Morgan and Simon or on a transferred intent theory, i.e., even if Bland did not intend to kill the two men, his intent to kill Wilson carried over or transferred to the, perhaps, inadvertent wounding of Morgan and Simon. (Bland, supra, 28 Cal.4th at p. 319.)

The Supreme Court noted it was possible, given the evidence, that Bland killed his intended victim and that the other two men were wounded unintentionally. The court concluded that while the intent to kill one person transfers to the unintended killing of others, the intent to kill does not transfer to victims who are not killed and, thus, cannot be a basis for a finding attempted murder. (Bland, supra, 28 Cal.4th at pp. 326-331.)

The court cited with approval this summary of the rule: " '[W]here a single act is alleged to be an attempt on two persons' lives, the intent to kill should be evaluated independently as to each victim, and the jury should not be instructed to transfer intent from one to another.' [Citation.]" (Bland, supra, 28 Cal.4th at p. 327.) The court noted that a necessary element of attempted murder, unlike murder, is the intent to kill. The court stated: "To be guilty of attempted murder, the defendant must intend to kill the alleged victim not someone else. The defendant's mental state must be examined as to each of the alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others." (Id. at pp. 327-328.)

The court stated, however, that one who fires at a group of people desiring the death of a target, nonetheless, can be convicted of the attempted murder of the nontargeted persons if " . . . 'the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity. . . .' " (Bland, supra, 28 Cal.4th at pp. 329-330.) The court gave as examples placing a bomb in an airliner when the desire is to kill a particular person on board, firing an automatic weapon at a group of people on the street motivated by the desire to kill one particular person in the group or the use of an explosive device devastating enough to kill everyone in the group. The court describes this as the creation of a "kill zone." (Id. at p. 330.)

Quoting with approval Ford v. State (1992) 330 Md. 682, 1000-1001 [625 A.2d 984], Bland states: " . . . 'When the defendant escalate[s] his mode of attack from a single bullet aimed at A's head to a hail of bullets or an explosive device, the fact finder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death. The defendant's intent need not be transferred from A to B, because although the defendant's goal was to kill A, his intent to kill B was also direct; it was concurrent with his intent to kill A. Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. This situation is distinct from the "depraved heart" [i.e., implied malice] situation because the trier of fact may infer the actual intent to kill which is lacking in a "depraved heart" [implied malice] scenario." ' [Citation.]" (Bland, supra, 28 Cal.4th at p. 330.)

Bland concluded that the evidence "virtually compelled" a finding that, even if defendant primarily wanted to kill Wilson, he also, concurrently, intended to kill the others in the car. The court stated that Wilson at least "intended to create a kill zone." (Bland, supra, 28 Cal.4th at p. 333.)

In People v. Smith, supra, 37 Cal.4th 733, the court again visited the issue of attempted murder. In Smith Karen A. was sitting in the driver's seat of her car. Her baby was sitting in an infant seat directly behind her. Smith approached Karen's car. The two had an acrimonious relationship. As Karen started to drive away, she looked in the rearview mirror and saw appellant directly behind her holding a gun. Appellant fired a single shot that barely missed both Karen and her baby. Convicted of two counts of attempted murder, Smith argued while the evidence was sufficient to convict him of attempting to murder Karen, it was insufficient to convict him of attempting to murder the baby. (Id. at pp. 736-738.)

In resolving Smith's claim, the court noted that attempted murder requires a finding that the defendant harbored express malice toward the victim, i.e., the defendant either desired the victim's death or knew to a "substantial certainty" that the victim's death would occur. (Smith, supra, 37 Cal.4th at pp. 739, 743.) The court observed that the jury in Smith was properly instructed on the elements of attempted murder, including the requirement that defendant be found to have acted with the specific intent to kill the baby in order to be convicted of attempted murder of the child. (Id. at p. 740.) The court concluded that the evidence in the case supported the conclusion that when Smith fired into the car he intended to kill both Karen and her baby. (Id. at pp. 743-745.)

As part of its discussion the court in Smith dealt with a defense claim that the only theory on which a conviction of attempted murder as to the baby could be based was the "kill zone" theory announced in Bland. Appellant argued the facts did not support conviction on that theory because Smith did not use a bomb, other explosive device or a hail of bullets. Smith noted he fired a single shot. (Smith, supra, 37 Cal.4th at p. 745.)

The court rejected Smith's analysis. It stated the existence of the kill zone theory did not preclude a conclusion that Smith's act of firing a single shot at Karen and her baby, both of whom were in the direct line of fire, was an attempted murder of both. The court described the kill zone theory, i.e., the use of lethal force intended to kill everyone in an area around the targeted victim as a means of killing the targeted victim. The court noted that the kill zone theory was not the sole basis on which multiple convictions of attempted murder could be supported. The court stated in circumstances like those in Smith multiple attempted murder convictions could be based on the simple conclusion that Smith intended to kill both Karen and her baby. (Smith, supra, 37 Cal.4th at pp. 745-746.)^[2]

2. Background

Here, Love caught appellant attempting to steal his car. A struggle ensued. Love yelled for his friends Krudwig, McGuire and Diez. The men joined in the fight. As appellant came out the passenger window of the car, McGuire kicked him in the face. Appellant escaped. As the four men talked about what occurred, a car driven by appellant came quickly towards them. As appellant drove past, one of the men yelled "gun." Love dove toward the front of the car the other three men went to the back.

Appellant fired two shots, one in the direction of Love and the other in the direction of the other men.

Appellant was charged with four counts of attempted murder.

Using standard CALJIC instructions, the trial court told the jury that an attempted murder occurs when there is a "direct but ineffectual act by one person towards killing another human being; and . . . the person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being."

The court instructed the jury that it was alleged as to each of the four counts of attempted murder that the crimes attempted was willful, deliberate and premeditated murder. The court defined the terms and then told the jury that if the attempted murder was preceded by a clear deliberate intent to kill as the result of deliberation and premeditation and not a sudden heat of passion it was an attempt to commit willful, deliberate and premeditated murder.

The court explained the difference between mere preparation and the actual commencement of the criminal act. The court instructed that to amount to an attempt, "[t]he acts must be an immediate step in the present execution of the killing, the progress of which would be completed unless interrupted by some circumstances not intended in the original design."

The trial court did not instruct concerning the doctrine of transferred intent. Nor did the court instruct in the terms of CALJIC No. 8.66.1, concerning the concept of concurrent intent. At the time of the trial in this case, CALJIC No. 8.66.1 [Attempted Murder - Concurrent Intent] stated: "A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the 'kill zone.' The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity.

Story continue in Part II ……

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^[1] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of DISCUSSION A. Instruction on Other Crimes Evidence, B. Prosecutorial Misconduct, D. 3. Ineffective Assistance During Defense Argument, D. 4. Ineffective Assistance During Investigation, and E. Sentencing.

^[2] In this regard the court stated: "We thus have no occasion here 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." (Smith, supra, 37 Cal.4th at p. 746, fn. 3.)