PEOPLE v. SHADDEN

Filed 4/24/07

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge.

Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Angry at the mother of his children, defendant Thomas Joe Shadden produced a gun and opened fire on her unoccupied car as bystanders looked on. He also stuck an ice pick in one of the tires. He was convicted of grossly negligent discharge of a firearm, discharging a firearm at an unoccupied motor vehicle, and being a felon in possession of a firearm. The 16-year prison sentence he received includes 10 years of recidivism-based enhancements.

He now (1) challenges several aspects of the grossly-negligent-discharge and discharging-at-an-unoccupied-motor-vehicle convictions; (2) argues that evidence of threats to a witness was inadmissible; (3) requests review of the disposition of his Pitchess motion; and (4) challenges his sentence pursuant to recent United States Supreme Court decisions. We conclude there was no reversible error and affirm the judgment.

We publish our holding that the owner-consent provision of the firing-at-an-unoccupied-vehicle statute requires the consent of all owners, not just that of the shooter, where the shooter is one of several co-owners. The statute does not allow one co-owner to shoot up a car without the consent of the other owners.

We also publish a portion of our discussion of defendants sentencing claim under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham). Since the trial court here had discretion to impose a three-strikes sentence of 25 years to life, its imposition of upper term sentences, which were shorter, did not contravene the Supreme Courts precedents.

FACTUAL AND PROCEDURAL HISTORIES

Vanessa Ortiz considered herself defendants wife, although they were not legally married and not living together. They had three children. Vanessa lived with the children and her brother, Jason Ortiz. According to Vanessa, defendant did not approve of Jason living in Vanessas apartment with the children because Jason used methamphetamine. According to witnesses, Vanessa, Jason, and defendant all regularly used methamphetamine.

One night, Jason and his friend Ruben Navarrete drove to Vanessas apartment and parked in the carport. Vanessa drove up shortly afterward. After the three of them got out of their cars, defendant and his friend Arturo Morales drove up. Defendant was angry and began arguing with Vanessa. During the argument, defendant punctured one of the rear tires of Vanessas car with an ice pick. Vanessa walked into the apartment building.

Defendant punched Vanessas car with his fist. Then he drew a gun and, from a distance of about six feet, fired at least four shots, shattering the window in the drivers door and making a number of bullet holes in the metal. Jason and Ruben stood nearby as defendant did these things. Other people were also nearby. When defendant was through, he and Arturo got back in the truck and drove off.

The District Attorney filed a four-count information. Count 1 was discharging a firearm in a grossly negligent manner. (Pen. Code,  246.3.)^[1] Count 2 was discharging a firearm at an unoccupied motor vehicle. ( 247, subd. (b).) Count 3 was being a felon in possession of a firearm. ( 12021, subd. (a)(1).) An additional count of being a felon in possession of a firearm, relating to a separate incident, was dismissed before trial at the prosecutors request.

For sentence-enhancement purposes, in connection with each count, the information included special allegations regarding two prior offenses. These were 1997 convictions for arson ( 451, subd. (d)) and making criminal threats ( 422). The information alleged (1) that these were strikes, i.e., prior felony convictions within the meaning of section 667, subdivisions (c) through (j), and section 1170.12, subdivisions (a) through (e); (2) that the felonies were serious within the meaning of section 667, subdivision (a); and (3) that defendant served a prison term for the prior offenses within the meaning of section 667.5, subdivision (b).

At trial, the witnesses to the shooting refused to identify defendant as the shooter. Jason testified that he saw defendant punch the car and puncture the tire; he heard the shots and saw the smoke, but wasnt paying attention when the shots were fired and therefore did not see who fired them, although he was standing 20 feet away. Before yielding even this much information, Jason was evasive:

Q. What do you recall about what he said or did that day?

A. Nothing. [] []

Q. What did Thomas Shadden do when he was there that day?

A. What did Thomas Shadden do?

Q. Yeah.

A. What do you mean?

Q. Im asking what Thomas Shadden did when he was there that day in the alley?

A. Im not understanding the question.

He explained that, because he was an ex-felon, he would be regarded in a negative light by some if he testified against a criminal defendant. When you go to prison, its a whole different world. Its different rules. Nobody can help you. You have to basically do what you got to do and thats just the way it is. When confronted with his statement to police that defendant shot the car, Jason admitted he said something of that kind.

Ruben described the shooting in detail, but said he could not identify defendant as the shooter. As we will explain in more detail later, someone fired five shots at Rubens parents house, while Ruben was sleeping there, a few weeks after defendant shot Vanessas car.

Vanessa testified that she saw defendant puncture the tire but was inside the building by the time the shots were fired and did not see who fired them. Arturo testified that he, not defendant, fired the shots. He claimed he did this because he shared defendants objection to Jason living with Vanessa and the children.

The jury heard recordings of seven telephone calls defendant placed to Vanessa and other family members from jail. During these calls, defendant made many incriminating statements which are detailed in the unpublished portion of this opinion.

The jury found defendant guilty of counts 1 through 3. He waived his right to a jury trial on the prior-offense allegations; the court found them to be true.

Defendant filed a petition requesting that the court exercise its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and section 1385, subdivision (a), to dismiss the prior-offense allegations and avoid imposing a three-strikes sentence. The court granted the motion in part, striking, with respect to all three counts, the allegation regarding the conviction of making criminal threats. It also struck the prior prison term allegation with respect to counts 1 and 2.

The court imposed an aggregate sentence of 16 years in prison. This consisted of a doubled six-year upper term for grossly negligent discharge of a firearm plus two consecutive five-year enhancements pursuant to section 667, subdivision (a). An identical sentence was imposed for count 2 and stayed pursuant to section 654. A doubled six-year upper term was also imposed for count 3 and stayed pursuant to section 654.

DISCUSSION

I. Grossly negligent discharge of a firearm

Section 246.3, subdivision (a), provides:

Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.

Defendant argues that the evidence presented at trial was insufficient to support his conviction under this statute. He also argues that the statute is unconstitutionally vague and that the jury was instructed erroneously with respect to this crime.

A. Sufficiency of evidence

When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidencethat is, evidence that is reasonable, credible, and of solid valuefrom which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)

Defendants argument here is that the evidence was insufficient to prove the gross-negligence element of the crime. Gross negligence, as used in section 246.3, requires a showing that the defendants act was such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . (People v. Overman (2005) 126 Cal.App.4th 1344, 1361.) Defendant cites legislative history indicating that the Legislature was concerned about guns being fired into the air during holiday celebrations; he also cites cases involving shots fired in the general direction of a person or group of people. Here, by contrast, he says, the shots were fired downward and away from those present, so there was no likelihood of injury to or death of another, and defendants behavior could not reasonably be found to be grossly negligent. He asserts that because he did not fire toward the bystanders, his actions demonstrated a specific intent to avoid danger to human life.

The evidence amply showed that defendants actions were incompatible with a proper regard for human life. Two bystanders, Jason and Ruben, were near Vanessas car as defendant fired; both testified that they were 20 feet away, about the length of a car. Other people were in the carport or the alley beside it and in a car that was parking nearby. Arturo was also present in the carport. We have no hesitation in concluding that the evidenceshowing defendant fired shots into a car parked in the carport of an inhabited apartment building in the presence of numerous bystanderswas sufficient to support a finding of gross negligence. The fact that the gun was not actually aimed at a person makes no difference under these circumstances. A bullet could easily have struck a person after passing through the car or ricocheting off the car or off the carports floor.

In his reply brief, defendant insists that [t]he fact that appellant took care to fire downward into the vehicle and away from all those present at the scene removes this case from the realm of gross negligence. The standard of appellate review bears emphasizing here. The question is not whether a jury could reasonably find gross negligence absent on the basis of facts like these. It is whether every reasonable jury must necessarily fail to find it present beyond a reasonable doubt given this evidence. Here the jury found it present beyond a reasonable doubt, and we cannot say its finding was unreasonable.

B. Alleged statutory vagueness

Defendant argues that section 246.3 violated his constitutional right to due process of law because its prohibition on willfully discharg[ing] a firearm in a grossly negligent manner which could result in injury or death to a person was too vague to give him notice of the conduct in which he was forbidden to engage. This argument has no merit.

A criminal statute is unconstitutionally vague if it fails to give adequate notice to ordinary people of the conduct it prohibits or if it authorizes arbitrary or discriminatory enforcement. (Kolender v. Lawson (1983) 461 U.S. 352, 357; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115-1116.) Defendants claim, then, is that the statute did not sufficiently notify him that he must not fire a gun into a car in the carport of an inhabited apartment building in the presence of bystanders, or perhaps that a statute allowing enforcement based on those facts authorizes arbitrary punishment. He says he could not know what the prohibited behavior was because the statute only says not to fire in a grossly negligent manner that could result in injury or death, not a manner that was likely to result in injury or death. To state the claim is to refute it. That the statute forbids the conduct proved by the evidence in this case is obvious; enforcement of the statute under these circumstances is reasonable, not arbitrary.

Defendant also appears to argue that the statute must be invalid because the mental state it requires is gross negligence rather than requiring an intent. He says, [t]rue crimes (as distinguished from regulatory or public welfare offenses) require a general criminal intent or mens rea. Immediately after this, defendant quotes a statute that refutes his claim, section 20: In every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence. California criminal law includes offenses based on criminal negligence, like the one at issue here, and no constitutional principle makes this improper.

Defendant repeats, in this context, his claim that he is being punished for gross negligence even though his behavior evinced an intent to avoid harming anyone. His notion is that pointing the gun at the car instead of at the bystanders constituted a measure of care he took to protect persons safety. He makes this the basis of a contention that, even if the statute is not invalid on its face, it is invalid as applied to the facts of this case. Defendants behavior did not evince an intent to avoid harming anyone. If he had an intent to avoid harming anyone, he would not have shot up a car parked in a carport beside an apartment building with people standing around. The statute was valid as applied to defendant as well as valid on its face.

C. Jury instruction

The court instructed the jury pursuant to CALJIC No. 3.36, stating as follows:

Gross negligence means conduct which is more than ordinarily negligent. Ordinar[y] negligence is the failure to exercise ordinary or reasonable care. [Gross negligence] refer[s] to a negligent act which is aggravated, reckless or flagrant, which is such a departure from the conduct of an ordinarily prudent[,] careful person under the same circumstances [a]s to be contrary to a proper regard for danger to human life or to constitute indifference to the consequences of those acts. [The facts must be such that] [t]he consequences of the negligent acts could reasonably have been foreseen and [it] must appear that [the danger] to human life was not the result of inattention, mistake[n] judgment or misad[venture] but [the] natural and probable [result of an] aggravated, reckless or flagrantly negligent act.^[2]

Defendant contends that the instruction was erroneous because it referred to indifference to the consequences rather than conscious indifference to the consequences. He relies on the proposition, set forth in People v. Bennett (1991) 54 Cal.3d 1032, 1036, and other cases, that [g]ross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.

Some other cases omit the word conscious from the definition of gross negligence. For instance, in People v. Pike (1988) 197 Cal.App.3d 732, 742, we approved a jury instruction that defined gross negligence as the failure to exercise any care or the exercise of so little care that you are justified in believing that the person whose conduct was involved was wholly indifferent to the consequences of his conduct to the welfare of others. This is not, however, a split of authority. We agree with the Peoples view that the phrases indifference to the consequences and conscious indifference to the consequences are not materially different in meaning. As the People argue, one cannot be indifferent to something unless one is conscious of it. The common meaning of indifferent to the consequences, therefore, is that a person knows there may be consequences, but does not care. In other words, because there is no such thing as being unconsciously indifferent to the consequences of ones actions, the omission of the word conscious could not have misled the jury and does not render CALJIC No. 3.36 erroneous.

In an attempt in his reply brief to salvage the claim of instructional error, defendant says a properly instructed jury could not have found him consciously indifferent to the consequences of his actions; he resorts here again to the idea that he took specific precautions to avoid causing injury or death to another by pointing the gun at the car instead of at the bystanders. To what we have already said about this idea, we only add, in light of the instruction, that the jury found defendant was indifferent to the consequences of his actions and consequently did not care and did not take precautions. The omission of the word conscious makes no difference for the reasons we have stated.

We conclude that the instruction was correct. There is no need to address the Peoples argument that defendant waived this issue by failing to object to the instruction.

II. Discharging firearm at an unoccupied motor vehicle

Section 247, subdivision (b), provides:

Any person who discharges a firearm at an unoccupied motor vehicle or an uninhabited building or dwelling house is guilty of a public offense punishable by imprisonment in the county jail for not more than one year or in the state prison. This subdivision does not apply to shooting at an abandoned vehicle, unoccupied vehicle, uninhabited building, or dwelling house with the permission of the owner.

Vanessa and Jason testified that the car was registered in the names of both Vanessa and defendant. Defendant argues that in light of this, there was insufficient evidence to prove a violation, since he was an owner and necessarily had his own consent. He also contends that the court erroneously omitted a jury instruction on owner consent.

A. Consent of one co-owner

Defendants interpretation of the statutethat one of several owners is not guilty if he shoots at the unoccupied vehicle with his own consent but not that of the other ownersis mistaken. In interpreting a statute, our objective is to ascertain and effectuate legislative intent. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007.) In the end, we must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences. [Citation.] (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.) To relieve a co-owner of criminal responsibility because he gives himself permission to shoot at the car, without regard for the wishes of the other co-owner(s), would be an absurd consequence. The point of the owner-consent provision is to avoid liability for shots fired at property the owners did not want to preserve, not to provide a loophole for a co-owner who damages the property without another co-owners permission.

Defendants own phrasing of his argument reveals the absurdity of the consequences it entails: He was entirely within his rights to discharge a firearm at his own vehicle. Persons are not within their rights when they destroy property they co-own without consent of the other owner or owners. This point was illustrated in People v. Kahanic (1987) 196 Cal.App.3d 461. There, a wife threw a beer bottle through the rear window of a car she co-owned as community property with her husband. Convicted of vandalism, she argued on appeal that she could not be guilty of vandalizing her own property. (Id. at pp. 462-463.) The vandalism statute, section 594, then punished every person who vandalized property not his own. (Id. at p. 463.) We held that the statute protected each owner against crimes against his or her interest in the property and did not make an exception for one owners assault on the interest of the other. (Id. at p. 466.) We relied in part on case law holding that parties to a partnership were not immune from criminal liability for stealing partnership property from each other just because they each hold an undivided interest in the partnership property: Fundamentally, stealing that portion of the partners shares which does not belong to the thief is no different from stealing the property of any other person. (Id. at p. 464.) (See also People v. Wallace (2004) 123 Cal.App.4th 144, 147-150 [Kahanic applies to vandalism of community property inside marital home as well as community property elsewhere].) The same reasoning applies here. Shooting at a car in which one has an undivided part interest affects other owners part interest in exactly the same way that shooting by a third party would do.

Defendant argues that interpreting the statute to require consent of all owners is not logical and would render it unconstitutionally vague; he says he had no way to know shooting at his own unoccupied vehicle was a crime . This is no more persuasive than his claim that he had no way of knowing it was grossly negligent to shoot at a car in the carport of an occupied apartment building with people standing around. A reasonable person knows that if he has only a part interest in property, he cannot shoot that property up without asking those who own the remaining interest for permission.

In his reply brief, defendant argues for the first time that there was insufficient evidence to support the conviction because there was evidence that Vanessa gave implied consent. This evidence was her testimony that she did not call the police. In an attempt to support this notion, defendant improperly cites an unpublished Court of Appeal case dealing with police searches of premises with the consent of one co-occupant. Defendant also claims that it is evidence of Vanessas consent to the discharge of the firearm that she said she did not call the police before he fired because he just stabbed the tire. We do not see how this testimony supports defendants position.

In any event, failing to call the police is not evidence of consent, but even if it were, it would not show that there was insufficient evidence to support the conviction. A reasonable jury could find beyond a reasonable doubt that defendant acted without Vanessas consent even though she did not call the police.

B. Jury instruction

Defendant argues that the jury should have been instructed on owner consent. The People cite People v. Lam (2004) 122 Cal.App.4th 1297, 1303 for the proposition that lack of owner consent is not an element of the crime and they did not have the burden of proving it. Defendant does not deny this, but replies that the instruction was required even if owner consent is an affirmative defense.

In a criminal trial, the court must give an instruction requested by a party if the instruction correctly states the law and relates to a material question upon which there is evidence substantial enough to merit consideration by the jury. (People v. Avena (1996) 13 Cal.4th 394, 424; People v. Wickersham (1982) 32 Cal.3d 307, 324, overruled on other grounds by People v. Barton (1995) 12 Cal.4th 186, 201.) The court must also give some instructions sua sponte:

[E]ven in the absence of a request, a trial court must instruct on the general principles of law governing the case, i.e., those principles relevant to the issues raised by the evidence, but need not instruct on specific points developed at trial. The most rational interpretation of the phrase general principles of law governing the case would seem to be as those principles of law commonly or closely and openly connected with the facts of the case before the court. [Citations.] (People v. Michaels (2002) 28 Cal.4th 486, 529-530.)

Here, the evidence did not support giving the instruction. Defendant presumably consented, but Vanessa did not. For the reasons we have stated, one co-owners consent is not enough.

Defendant argues in his reply brief that there was evidence that Vanessa gave implied consent because she testified that she did not call the police. He contends that the instruction was required because of this evidence. We disagree. A jury instruction is required if there is enough evidence to warrant the jurys consideration. Vanessas failure to call the police could imply many thingsthat she knew others in the building would do so, or that she did not want defendant to be arrested, for instanceor nothing at all. There was no reason to think it implied she had given defendant her consent to the shooting of her car.

Based on our conclusion, we need not address defendants contention that if he waived this issue by failing to object to the instructions given for this offense or to request different ones, the waiver was due to ineffective assistance of counsel.

III. Shooting at home of witness

The jury heard a recording of a conversation between Vanessa and defendant at the jail. Defendant asked Vanessa to find out Rubens address, give it to defendants nephew, and make sure the nephew went to Rubens house and knock[ed] on the MF-ing door. Vanessa testified that she obtained a copy of a police report containing the address of Rubens parents house, where Ruben lived, but never gave the address to anyone.

The shooting of the car took place on November 5, 2004. Ruben testified that, on the Sunday after Thanksgiving, five shots were fired at his parents house. The shots made holes in a wall and broke windows. This took place while defendant was in jail. Ruben contacted the district attorneys office and was placed in the witness protection program.

Rubens testimony about this was admitted over defendants in limine objection. The court ruled:

I think it appears to the Court as it is relevant information with respect to the witness testifying and any fear that the witness may have which may go to the credibility of that particular witness among other things. I do believe that it is relevant. I believe it has probative value. I believe theres not undue prejudice so long as the Court instructs the jury they must not consider this as havingthe fact the house was shot up; they may not assume nor speculate that [it] came from the defendant because there is no evidence that it came from the defendant.

As Ruben was being questioned about this, the court interrupted and instructed the jury:

And let me just advise the jury with respect to this. Theres no evidence before this jury, nor may the jury speculate that the defendant had anything to do with that. It only goes to the issue of the state of mind of this witness with respect to testifying in this court because you are evaluating the testimony of this witness, so you cant in any way associate this against the defendant in this case.

The instructions given at the end of the case included this one pursuant to CALJIC No. 2.06, addressing witness intimidation:

If you find that a defendant attempted to suppress evidence against himself in any manner[,] such as by intimidation of a witness, this [attempt may be considered by you as] a circumstance tending to show consciousness of guilt; however, this conduct is not sufficient by itself to prove guilt[,] and [its] weight and significance, if any, are for you to decide.^[3]

Defendant argues that the evidence of the shooting at Rubens parents house was irrelevant or, if relevant, should have been excluded pursuant to Evidence Code section 352 as unduly prejudicial. The People argue that the evidence was admissible not only for the purpose for which the court allowed itto show Rubens fearful state of mindbut also to show, in conjunction with the recorded jail conversation between defendant and Vanessa, that defendant was responsible for the shooting at Rubens parents house. This position is consistent with that taken by the prosecutor, who in closing argument described the last call where [defendant] instructs Vanessa to find out where the other dude lives. She says she knows he lives with his mother and sure enough within a week, Ruben Navarretes mothers house is shot up after this defendant is yelling at Vanessa to make sure that his nephew gets out there and knocks on the f-ing door. These are not the words of an innocent man. We review the trial courts decision for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955.)

We agree with the Peoples view. First, the testimony was admissible for the reason the court originally admitted it, to show Rubens fearful state of mind. In People v. Olguin (1994) 31 Cal.App.4th 1355, 1367-1368, the appellate court held that evidence of third-party threats against a witness are admissible. Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. [Citations.] Testimony a witness is fearful of retaliation similarly relates to that witnesss credibility and is also admissible. [Citation.] It is not necessary to show threats against the witness were made by the defendant personally, or the witnesss fear of retaliation is directly linked to the defendant for the evidence to be admissible. (Id. at p. 1368.) Rubens testimony that his residence was fired upon and that he entered a witness protection program was relevant to show that he had reason to be afraid when he testified. Among other things, the evidence could help the jury evaluate Rubens claim that he was unable to identify the shooter.

Story continued as Part II ..

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^*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I, II.B, III, IV, and V.B.

^[1]Subsequent statutory references are to the Penal Code unless otherwise indicated.

^[2]As set forth in the reporters transcript, parts of the instruction are garbled. Defendant does not claim any error on this account. The written version of the instruction contained in the clerks transcript does not contain the mistakes.

^[3]Again, parts of the instruction are garbled as set forth in the reporters transcript. The written version in the clerks transcript does not contain the mistakes and defendant makes no claims on this basis.