P. v. Tannehill

Filed 8/14/07 P. v. Tannehill CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.

Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Keith Dolorean Tannehill stands convicted, following a jury trial, of willfully discharging a firearm in a grossly negligent manner (Pen. Code, 246.3) and possessing marijuana for sale (Health & Saf. Code, 11359). In addition, appellant pled no contest to escape with pending felony charges (Pen. Code, 4532(b)(1)) after attempting escape before sentencing. Sentenced to six years four months in prison, he now appeals, asserting that insufficient evidence supports his conviction for willfully discharging a firearm in a grossly negligent manner. No other contentions are raised on appeal. For the following reasons, we affirm.

STATEMENT OF FACTS^[1]

On August 1, 2005, at about 10:00 a.m., police responded to a shooting at the studio apartment of appellant Keith Tannehill and his live-in girlfriend Lesheay White, who had been shot in the right ankle. Tannehill and White had been dating for four years and shared a then-three month old daughter.

Initially, White told police that a stranger shot her outside the apartment because she responded rudely when asked for the time. Tannehill was not present when police arrived, and White claimed that he had left two minutes prior to the shooting after accusing her of having an affair. White said that this accusation caused her to act rudely to the stranger. However, police noted that Whites story conflicted with the physical evidence, which indicated that the shooting occurred inside the apartment. Specifically, police observed no blood trail outside the apartment, but found blood on the carpet, gunshot holes, a spent shell casing, and live ammunition inside.

Before 11:00 a.m. on the morning of the shooting, Tannehill visited a friend, who told his sister to give Tannehill a ride in her car. She drove Tannehill to a dumpster at a 76 station near his apartment, where he retrieved a pizza box and a small ammunition box. Next, they returned to her apartment, leaving the boxes in the car, and he asked her to pick up his daughter from his apartment. Tannehill never mentioned why he wanted her to get his daughter nor why he retrieved the boxes. After she arrived at Tannehills apartment, officers refused to hand over the child, and when interrogated, she denied visiting the dumpster. She then left the scene but was quickly pulled over, and officers seized the ammunition box, which was empty but labeled for .25 caliber bullets.

About one month later, White was further interviewed by police and said that she and Tannehill had been arguing all morning before the shooting. She said that she picked on Tannehill until he produced a black .25 caliber firearm, that he suddenly shot her in the ankle, that he was apologetic, that she believed it was an accident, and that he then left the apartment for an unknown address. White said that she knew the firearm was .25 caliber because she had seen Tannehill handle a .25 caliber weapon before, she was familiar with .25 caliber ammunition, and Tannehill had a box of .25 caliber ammunition. Lastly, White said that she blamed herself for the incident and that she initially lied to police because she feared losing her baby.

A few days after the interview, White wrote in a To whom it may concern letter that Tannehill had not assaulted her and that he was a good father who provided for his family. White explained that she lied during the interview because she was afraid of being prosecuted and losing custody of her daughter. However, White never contacted the interviewing officer to withdraw her statement, even though Tannehill was already in jail.

At trial, White testified that she lied when she told police that Tannehill shot her. She claimed that she lied out of jealously, having learned that Tannehill had an affair when she was six-months pregnant and was still talking to other random females. White also testified that the man she was having an affair with shot her. She claimed that after she mentioned ending the affair he threatened her with a gun and that it just went off like it had a default. White admitted that she had never mentioned her true assailant until trial and claimed that she was getting along well and not fighting with appellant. After being shot, White said that she dialed 911 and that the man fled. White also claimed that he was responsible for shooting the hole in the wall inside her apartment. Tannehill was allegedly absent when all this occurred because he had spent the prior night at a friends house and had not yet returned home. However, when Tannehill was first questioned by police, he said that he was at the apartment the morning of the shooting, that he and White were arguing, but that he left before the shooting occurred.

After his arrest, Tannehill phoned and wrote White, threatening and encouraging her not to testify. For example, Tannehill wrote to White that she violated the game and that this could get [her] waked [sic], which White said meant she could be whacked for telling police the truth.

Two months after the shooting, police retrieved a small caliber bullet, approximately a .22 or .25, from a gunshot hole two to three feet above the floor inside Tannehills apartment. During the search, White told police that Tannehill was the shooter and that the incident was an accident.

DISCUSSION

STANDARD OF REVIEW

When the sufficiency of evidence is challenged, the appellate court reviews the whole record in a light most favorable to the judgment, to confirm that evidence of reasonable, credible, and solid value reasonably supports the trier of facts determination that the defendant was guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) When evaluating conflicts in the evidence and issues of credibility, the court defers to the trier of fact. (People v. Jackson (1992) 10 Cal.App.4th 13, 20.) The appellate court itself need not believe that the evidence establishes guilt beyond a reasonable doubt; rather, it must merely determine that any rationale trier of fact could find the essential elements beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319, citations omitted.) Thus, reversal is not warranted simply because the circumstances might also be reconciled with a contrary finding. (People v. Redmond (1969) 71 Cal.2d 745, 755.) For a judgment to be set aside for insufficiency of evidence, it must clearly appear that substantial evidence does not support the judgment under any hypothesis. (Ibid.)

ANALYSIS

Appellant contends that insufficient evidence supports his conviction for willfully [discharging] a firearm in a grossly negligent manner which could result in injury or death, in violation of Penal Code section 246.3, subdivision (a).^[2] In the context of section 246.3, the willful and gross negligence components are discrete elements of the offense. (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1440.) Willfully means that the firearm must have been intentionally discharged, as opposed to an accidental shooting where the perpetrator believed that the gun was unloaded. (People v. Robertson (2004) 34 Cal.4th 156, 167; Jerry R., supra, 29 Cal.App.4th at p. 1439.) Thus, proof that the defendant purposely, willingly, or intentionally discharged the firearm is required. (Jerry R., supra, 29 Cal.App.4th at p. 1439.) Next, grossly negligent, in the context of criminal liability, means conduct that so departs from ordinarily prudent conduct under the same circumstances as to be incompatible with a proper regard for human life. (Robertson, supra, 34 Cal.4th at p. 168; People v. Alonzo (1993) 13 Cal.App.4th 535, 539-540.) Neither party disputes this interpretation of section 246.3.

Appellant contends that no evidence establishes he willfully discharged the firearm in a grossly negligent manner. However, we find that substantial evidence was presented on each element of the offense, permitting the jury to reasonably find appellant guilty beyond a reasonable doubt.

Considering the whole record in a light most favorable to the judgment, the evidence readily indicates that appellant intentionally discharged the weapon in a grossly negligent fashion. Concerning the willful element of the offense, the physical evidence and testimony show that appellant was at the apartment the morning of the shooting, that he argued with the victim minutes prior to the shooting, that he shot the victim with a .25 caliber weapon, and that he possessed .25 caliber ammunition. Given this evidence, a jury could easily and reasonably find that appellant intended to discharge the weapon during the course of the argument, especially since the victim was allegedly badgering appellant. Some of the victims testimony indicates that the shooting may have been accidental, but the jury was free to question the credibility of that testimony, especially given appellants threatening letters and phone calls. And, in any case, the mere possibility that the circumstances may be reconciled with a contrary finding is insufficient to warrant reversal. (Redmond, supra, 71 Cal.2d at p. 755.) Thus, we believe that ample evidence was presented on the willful element of the offense, permitting a jury to reasonably find that appellant intentionally discharged the weapon.

Concerning the gross negligence element of the offense, the simple fact that the victim was shot is a sufficient basis for the jury to reasonably conclude that appellants conduct was a gross departure from ordinarily prudent conduct, particularly when the evidence demonstrates he pulled out the weapon during an argument. In addition, the jury could have considered the weapons discharge in a small studio apartment with a three-month old nearby as evidence of gross negligence. Thus, substantial evidence was presented to support the jurys gross negligence finding.

Coupled with appellants evasive behavior in the hour after the shooting, we believe that the jury acted quite reasonably in finding appellant guilty beyond a reasonable doubt of the offense.

DISPOSITION

The judgment is affirmed.

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^* Before Ardaiz, P.J., Harris, J. and Gomes, J.

^[1] Since appellants conviction for discharging a firearm in a grossly negligent manner is the sole issue on appeal, only facts relating to that incident have been included.

^[2] In whole, Penal Code 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.