P. v. Montue

Filed 7/30/07 P. v. Montue CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant of discharging a firearm into an occupied motor vehicle (Pen. Code, 246) and found true the allegation that the crime was committed for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)). The jury deadlocked on an attempted murder charge, which was then dismissed. Sentenced to 15 years to life (Pen. Code, 186.22, subd. (b)(4)(B)), defendant appeals. He contends there was insufficient evidence to support the verdict, the trial court erred in refusing instructions on defense of others and necessity, and he received ineffective assistance of counsel. Finding no prejudicial error, we affirm.

FACTS

This case arose from a turf battle between two competing criminal street gangs in Del Paso Heights, the Del Paso Heights Bloods and the Nogales Crips. On May 18, 2005, Donshea Ransom, a validated Nogales Crip, was on Beldon Street, an area claimed by the Del Paso Heights Bloods. Ransom was talking to James Whitfield. Whitfield, known as Bloodshot, is an older gangster in the Del Paso Heights Bloods gang. Whitfield told Ransom that when he drove by the other day and threw a Crip hand sign it was disrespectful to the Bloodss neighborhood. Ransom apologized and said he would not do it again.

Two days later, defendant and Ransom drove up to Beldon Street in a station wagon. Ransom was driving. Ransom let defendant out at his grandfathers house and defendant went inside. Ransom parked the car. There were a lot of young children outside playing and several women watching them.

Ransom began having words with several young men on the street who were members of the Del Paso Heights Bloods gang. The argument was about a sign Ransom had made. Ransom complained he was not going to let them keep checking him for the same thing. He had apologized and did not want to keep being confronted. At least two of the men told Ransom he had disrespected them.

Ransom threw down his cell phone and challenged the others to a fight. Oh, fuck this. Anybody want to fade me. Lets do this. To fade means to fight.

Just then defendant came out of the house in a rage. He told Ransom to get off the block. Ransom returned to the station wagon and left with another Crip. By the time Ransom got to the stop sign, defendant was shooting at the car. Defendant fired seven shots, holding the gun above his head and sideways. Just before the shooting began, Whitfield got the gun out of a car and handed it to defendant.

After the shooting one of the men said, Come on, man. Lets go get that nigger. We [are] going to get him. The speaker and defendant took off in a Mustang. Others left in another car.

Defendant and Whitfield were charged with attempted murder and shooting into an occupied vehicle, with a gang enhancement. Before defendants trial, Whitfield entered a plea of no contest to attempted murder and a prior prison term allegation in exchange for an eight-year sentence.^[1] As part of the plea agreement, Whitfield agreed he would assert his Fifth Amendment privilege and not testify if called by either the prosecution or the defense in defendants case.

Defendant testified in his defense. He claimed he had been friends with Ransom since they were children. While he was in the house, he heard arguing and became concerned for Ransoms safety because he was outnumbered. He tried to get Ransom to leave. As Ransom was leaving, Whitfield approached and told defendant that if he did not attack Ransom, Whitfield would kill defendant. Whitfield told defendant to take care of Ransom or he (Whitfield) would take care of defendant. Defendant was afraid for Ransom, so he shot. He did not intend to hit the car or the passengers. Since Ransom was his friend, defendant did not fear that Ransom would return fire.

DISCUSSION

I

Defendant contends there was insufficient evidence of shooting at an occupied vehicle because there was no evidence defendant fired at the car. Defendant argues that since he failed to hit the car, a large and close target, he must not have been trying to hit it or aiming at it. He further contends the trial court erred in responding to the jurys question about the requirements of Penal Code section 246. He asserts the evidence shows only that he negligently discharged a firearm, so the conviction must be reduced to a violation of Penal Code section 246.3.

First, there was substantial evidence defendant fired at the car.^[2] Three women witnessed the shooting and testified at trial. The first described the shooting as defendant pointing the gun towards Ransom in the station wagon. The second testified, Rico [defendant] starts shooting at him [Ransom]. The third said, He was shooting at Donshea, at the station wagon.

The jury was instructed that in order to find a violation of Penal Code section 246, it must find defendant discharged a firearm at an occupied vehicle[.]^[3] During deliberations, the jury asked, In the law does the word at mean directly at or in the general direction of (PC 246)[?] Both counsel met in chambers to review the courts response. The court responded: A violation of Penal Code section 246 is not limited to shooting directly at an occupied vehicle. Rather, it proscribes shooting either directly at or in close proximity to an occupied motor vehicle under circumstances showing a conscious disregard for the probability that one or more bullets will strike the vehicle or persons in or around it.

Defendant contends it was error to instruct the jury it could convict defendant if he fired in close proximity to the car. He argues that instruction permitted a guilty verdict simply because defendant was close to the car when he fired. Defendant contends his goal or objective must be considered and it is clear that he did not intend to hit the car, but purposefully missed it.

Although he frames the issue as substantial evidence or instructional error, defendants insistence that his goal and objective are the focus of Penal Code section 246 presupposes that section 246 is a specific intent crime, requiring the specific intent to strike the target. Because Penal Code section 246 is a general intent crime (People v. Watie (2002) 100 Cal.App.4th 866, 879), defendants contention fails.

In People v. Overman (2005) 126 Cal.App.4th 1344, defendant was convicted of assault with a firearm and discharging a firearm at an occupied building. The defense was that defendant did not shoot at anyone or any buildings, but discharged his gun into the air. (Id. at p. 1354.) As here, defendant argued if he had been shooting at anyone or anything, he would have hit his targets. (Id. at p. 1355.) During deliberations, the jury asked if, for the crime of shooting at an occupied building, the building had to be the actual target. The court responded it was sufficient that defendant was aware of the probability some shots would hit the building and he was consciously indifferent to that result. (Ibid.)

Defendant challenged this additional instruction on appeal, but the court held it was proper. (People v. Overman, supra, 126 Cal.App.4th at p. 1355.) [S]ection 246 is not limited to shooting directly at an inhabited or occupied target. Rather, it proscribes shooting either directly at or in close proximity to an inhabited or occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it. (Id. at pp. 1355-1356, italics in original.) The Overman court relied on People v. Chavira (1970) 3 Cal.App.3d 988, in which a conviction under Penal Code section 246 was upheld where defendant fired at persons standing outside a building. Since the courts additional instruction here was virtually the same as that given in Overman, we find no error.

Defendant contends these cases are distinguishable because he did not consciously disregard the probability he might hit the car. Rather, defendant contends, he was careful and avoided hitting anyone or anything. The jury was free to view the facts differently. The jury could reasonably conclude that defendant, described by a witness as in a rage, fired several shots quickly and in the direction of the station wagon in complete disregard of the probability that he might hit the car or someone near it. Substantial evidence supports the jurys verdict and the trial court did not err in responding to the jurys question.

II

The defense requested an instruction on use of force in defense of others, CALJIC No. 5.32.^[4] The court refused the requested instruction, finding that the instruction on duress adequately covered the defense position and CALJIC No. 5.32 would confuse and mislead the jury. The court found the potential injury to be inflicted on Ransom by Whitfield was neither imminent nor close in time because defendant held the gun.

Defendant contends this ruling was prejudicial error. He contends duress and defense of others are conceptually different. Duress focuses on the threat to defendant, while defense of others focuses on the threat to Ransom. He argues he fired, in part, to protect Ransom from an imminent attack. Although he held the gun, he contends an attack by Whitfield was still imminent because Whitfield could have procured another gun or chased Ransom in a car. Defendant asserts whether the attack was imminent was a question for the jury.

A defendant in a criminal matter has a constitutional right to have the jury decide every material factual matter presented by the evidence. [Citations.] . . . [] The test, however, as to when an instruction must be given is whether there was substantial evidence presented which would warrant the giving of the instruction. [Citation.] A jury instruction need not be given whenever any evidence is presented, no matter how weak. [Citation, italics in original.] Rather, the accused must present evidence sufficient to deserve consideration by the jury, i.e., evidence from which a jury composed of reasonable men could have concluded that the particular facts underlying the instruction did exist. [Citation.] [] This does not require--or permit--the trial court to determine the credibility of witnesses. It simply frees the court from any obligation to present theories to the jury which the jury could not reasonably find to exist. [Citation.] (People v. Strozier (1993) 20 Cal.App.4th 55, 62-63 [no error in refusing instruction on use of force in defense of another].)

To warrant giving the instruction, defendant had to produce sufficient evidence that he shot to prevent an imminent injury to Ransom. Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense. (Pen. Code, 694.) Defendant failed to present such evidence. Although defendant testified he was afraid for Ransom, he testified he shot because he was afraid of what Whitfield would do to him. Further, there was no evidence from which a reasonable jury could find injury to Ransom, from anyone other than defendant, was about to occur or imminent when Ransom was speeding away from Belden Street. There was no evidence of another gun or that Whitfield made any threats or took any actions against Ransom other than handing the gun to defendant.

The trial court did not err in refusing to give CALJIC No. 5.32.

III

The defense also requested an instruction on necessity, CALJIC No. 4.43.^[5] The trial court refused the instruction, noting that duress and necessity were distinct defenses. The court found no factual basis for the defense of necessity.

Defendant contends the trial court erred. He asserts all the elements of a necessity defense are true or arguably true. We strongly disagree.

The necessity defense is not codified by statute but represents a public policy decision not to punish despite proof of the crime. (People v. Heath (1989) 207 Cal.App.3d 892, 900-901.) The situation presented to the defendant must be of an emergency nature, threatening physical harm, and lacking an alternative, legal course of action. [Citation.] The defense involves a determination that the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged. [Citation.] . . . [] An important factor of the necessity defense involves the balancing of the harm to be avoided as opposed to the costs of the criminal conduct. [Citation.] (Id. at p. 901.)

Under defendants theory, the possible harm to Ransom, who was fleeing from the group of angry Blood gang members, was greater than the possible harm from shooting at an occupied vehicle for benefit of the gang. Defendant seriously understates the harm of his criminal conduct. He ignores the presence of several young children, who could have been injured or killed, no matter how careful defendant claims he was. He omits his membership in the Del Paso Heights Bloods criminal street gang. It was the gang factor that turned a trivial matter into a violent confrontation. It was defendants membership in the gang that placed him in the unhappy position he found himself. Further, the crime he committed is punishable by a life sentence, an indication the Legislature has deemed it a significant evil. Because the harm defendant claims he was avoiding was not greater than that sought to be prevented by proscribing shooting at an occupied vehicle for benefit of a criminal street gang, the trial court did not err in refusing to instruct on necessity.

IV

Defendant contends he was denied effective assistance of counsel at trial. He faults counsel for stipulating that his conviction for violating Vehicle Code section 10851 was a felony, when it was actually a misdemeanor. The prosecution was then able to impeach defendant with his felony conviction. He also contends counsel failed to act to thwart the improper plea agreement with Whitfield by which he agreed not to testify at defendants trial.

Defendant has the burden of proving ineffective assistance of counsel. [Citation.] To prevail on a claim of ineffective assistance of counsel, a defendant must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] A court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.] Moreover, prejudice must be affirmatively proved; the record must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] (People v. Maury (2003) 30 Cal.4th 342, 389.)

In ruling that the prosecution could impeach defendant with the Vehicle Code section 10851 conviction, the trial court found it was a crime of moral turpitude and the criteria of Evidence Code section 352 supported its admission. The court did not sanitize it because its prejudicial effect was minimal compared to the charges of serious, violent crimes. The parties stipulated to the conviction as a felony. In rebuttal argument, the prosecution argued defendant was a liar and he tried to get others to lie for him. The prosecutor continued, We havent even talked about the fact that he is a convicted felon. I mean no other witness has any of these convictions on their record.

Defendant argues that because his conviction was a misdemeanor, counsel was deficient and his error was prejudicial. Although a misdemeanor involving moral turpitude may be used for impeachment, only the conduct is admissible; the fact of a misdemeanor conviction is inadmissible hearsay. (People v. Wheeler (1992) 4 Cal.4th 284, 295-300.) Defendant contends he was prejudiced by being branded a felon.

We find no prejudice. The case against defendant was very strong; three disinterested witnesses saw him fire. Although defendant refused to admit his gang membership, a detective testified he met the criteria and counsel admitted defendant was a gang member. Defendants credibility was effectively impeached by the prosecution, without the prior conviction. Defendant admitted he asked a fellow gang member to be an alibi witness. Defendant wrote notes in jail in which he tried to blame Ransom for having the gun. It is not reasonably probable the result would have been different without admission of the Vehicle Code section 10851 conviction. (People v. Maury, supra, 30 Cal.4th 342, 389.)

Defendants contention that his counsel was prejudicially deficient in failing to do something about the plea agreement with Whitfield fails for several reasons. First, the record indicates the plea agreement was recited in court when neither defendant nor his counsel was present. The record does not show counsel knew about the agreement that Whitfield would take the Fifth if called as a witness. Nor does it show that defendant intended to call Whitfield as a witness or that Whitfield could provide testimony favorable to defendant. While we have concerns about a plea agreement that might interfere with defendants right to present witnesses on his behalf (see In re Martin (1987) 44 Cal.3d 1), defendant has failed to carry his burden to show either deficient performance or prejudice. (People v. Maury, supra, 30 Cal.4th 342, 389.)

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

SIMS , Acting P.J.

RAYE , J.

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^[1] Defendant had received and rejected an offer of 16 to 18 years.

^[2] A detective who examined the car found a small hole in the metal frame. He testified the hole was consistent with a bullet strike, but he could not prove it. In closing argument, defense counsel asserted the hole was on the wrong side of the car to be from the shooting.

^[3] The court instructed the jury in the language of CALJIC No. 9.03 as follows: Every person who willfully and maliciously discharges a firearm at an occupied vehicle is guilty of a violation of Penal Code section 246. [] In order to prove this crime, each of the following elements must be proved: [] Number one, a person discharged a firearm at an occupied vehicle; and {] Number two, the discharge of the firearm was willful and malicious.

^[4] CALJIC No. 5.32 reads: It is lawful for a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to be inflicted upon [another person] [_____] to protect that individual from attack. [] In doing so, [he] [she] may use all force and means which that person believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.

^[5] CALJIC No. 4.43 provides: A person is not guilty of a crime when [he] [she] engages in an act, otherwise criminal, through necessity. The defendant has the burden or proving by a preponderance of the evidence all of the facts necessary to establish the elements of this defense, namely: [] 1. The act charged as criminal was done to prevent a significant and imminent evil, namely, [a threat of bodily harm to oneself or another person] [or] [___]; [] 2. There was no reasonable legal alternative to the commission of the act; [] 3. The reasonably foreseeable harm likely to be caused by the act was not disproportionate to the harm avoided; [] 4. The defendant entertained a good-faith belief that [his] [her] act was necessary to prevent the greater harm; [] 5. That belief was objectively reasonable under the all the circumstances; and [] 6. The defendant did not substantially contribute to the creation of the emergency.