P. v. Berridge

Filed 10/12/07 P. v. Berridge 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Lassen)

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A jury found defendant Andrew Matthew Berridge guilty of attempted murder of a peace officer, convicted felon in possession of a firearm, and possession of a short-barreled shotgun. In connection with the attempted murder, the jury found that defendant personally used a firearm and that the victim was a peace officer engaged in the performance of his duties. In bifurcated proceedings, defendant admitted a prior prison term, a strike prior, and a violent felony conviction within 10 years of a prior prison term for a violent felony.

Sentenced to state prison, defendant appeals, contending: (1) he received ineffective assistance of counsel in that counsel stipulated that the victim was engaged in the performance of his duties; and (2) the jury instructions given violated his federal constitutional right to due process. We reject defendants claims.

FACTS

About 9:00 p.m. on April 28, 2005, while on patrol in Westwood, Lassen County Deputy Sheriff Kenneth McCormick responded to a radio dispatch to investigate a suspicious vehicle in the Roxie Peconom area. A short while later, Deputy McCormick radioed dispatch that he was in the area and asked what he was supposed to look for. He was advised to look for a dark colored car with camping gear scattered around it. As he continued along the road, Deputy McCormick passed a dark colored Nissan parked at the turnout for the Willard Hill sledding area. The deputy used his alley light to light up the car. It was the only car in the turnout. As he drove by, Deputy McCormick noticed the driver, with his ball cap pulled down very low, hunched down in the drivers seat look back at the deputy. Deputy McCormick made a U-turn, parked a car length behind the Nissan, and radioed dispatch with the license plate number of the Nissan.

Deputy McCormick, in full uniform, got out of his patrol vehicle, and walked up to the driver, defendant. Deputy McCormick asked defendant what he was doing. Defendant said he was having a cigarette. Deputy McCormick asked defendant to get out of his car and show his drivers license. Defendant did so. Deputy McCormick proceeded to ask defendant questions and defendant answered, that is, he stated that he was buying the car from Mike Duff or Duffy and the case on the floorboard behind the drivers seat contained CDs. Deputy McCormick asked defendant if he was on probation or parole. When defendant said he was on parole, Deputy McCormick told him that meant he was searchable. In a hostile tone, defendant responded, I know. Over his remote radio, Deputy McCormick ran defendants drivers license. Dispatchs response was confusing and Deputy McCormick asked for clarification. Meanwhile, defendant said, Ill show you and jumped back in his car with his legs hanging outside the car. When Deputy McCormick could not see defendants hands, the deputy asked defendant to show them but received no response. When the deputy asked again, defendant responded by pointing a 12-gauge shotgun within two and one-half feet from the deputys face. Defendant jerked the gun and flinched his eyes as if he had fired and anticipated recoil. The gun did not fire. Deputy McCormick ran for cover and as he did so, he fell a couple of times injuring himself and dropped his flashlight and defendants drivers license. The deputy scrambled and heard defendant working the action of the shotgun. The deputy tried unsuccessfully several times to unholster his weapon and got tangled up in his radio wire. He finally was able to get behind his patrol vehicle and look through the back window. Defendant ran to his car and sped off.

The deputy picked up his flashlight, radioed dispatch, and unsuccessfully tried to catch defendant. He returned to headquarters and then went to the hospital. The deputy never made it to the Roxie Peconom area and defendants car was not the subject of the dispatch call. The deputy believed that defendant had tried to shoot him.

About 9:30 p.m. that same evening, at the sledding area, Lassen County Undersheriff Si Bollinger recovered an unfired shotgun shell that had a dimple and defendants drivers license. The undersheriff knew defendant.

At 6:30 a.m. on April 29, 2005, an off-duty correctional officer found the Nissan, defendants car. Inside was a shotgun shell like the one found at the sledding area. After the car was impounded, an inventory revealed a police scanner and a list of the sheriffs radio frequencies.

A spent shotgun shell was found in a snowmobile park near the sledding area. A sawed-off shotgun with a shell was found near Highway 36.

Defendant was eventually found at a womans home in Westwood. When interviewed, defendant confirmed that the Nissan belonged to him but denied pointing a gun at anyone. Defendant claimed he got mad when Deputy McCormick ran a warrant check and when he jumped out of his car, the deputy ran away. In another interview after the shotgun had been found, defendant said the gun was loaded when Deputy McCormick approached him and he jacked a round out of the gun but denied he intended to kill the deputy.

The parties stipulated that on April 28, 2005, in the vicinity of the Willard Hill sledding area in Lassen County, Deputy McCormick was employed as a peace officer and in the performance of his duties when he encountered defendant.

Defendant testified in his defense. He denied trying to kill Deputy McCormick. About 9:10 p.m., defendant sat in his car at the Willard Hill area smoking a cigarette when Deputy McCormick turned around and, leaving his headlights on, parked behind defendant. Defendant got out of his car with his license in hand before the deputy got out of his car. He met the deputy at the drivers side of the patrol vehicle. The deputy asked him several questions. Defendant admitted to the deputy that he was on parole. Defendant and the deputy walked back to defendants car and defendant got into his car. The deputy asked defendant to retrieve the CD case and he did. Defendant explained that he noticed the shotgun sticking out from under a blanket and tried to hide it with his leg. When he grabbed it by the handle, he turned and looked at Deputy McCormick who ran away. Defendant got out of his car and saw the deputy fall. Defendant looked for his license but could not find it. He left and later abandoned the car. He fled because he was a convicted felon in possession of a firearm and was resisting. He claimed that he had previously tested the shotgun near Willard Hill and it did not work.

DISCUSSION

I

Stipulation As To Deputy McCormick

Defendant contends counsel rendered ineffective assistance when she entered into the following stipulation near the end of the prosecutions case and prior to his testimony: [O]n the date in question, April 28th of 2005, in the vicinity of the Willard Hill sledding area in Lassen County, Ken McCormick, deputy sheriff for Lassen County, was on duty that night, was in the performance of his duties in his contact with [defendant and was] employed as a peace officer. Defendant argues that without the stipulation, the evidence was insufficient to show that Deputy McCormick had a reasonable suspicion that defendant was engaged in criminal activity and could not rely on his parole condition. Further, his car was not the car dispatch was seeking.

To establish ineffective assistance of counsel, defendant must demonstrate that counsels performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Defendant has failed to demonstrate that counsels performance was deficient.

For attempted murder of a peace officer, the jury had to find that the officer was acting lawfully to be in the performance of his duties. (Pen. Code,^[1] 664, subd. (e); People v. Jenkins (2000) 22 Cal.4th 900, 1020; In re Manual G. (1997) 16 Cal.4th 805, 815; People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.) The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in duties, for purposes of an offense defined in such terms, if the officers conduct is unlawful. . . . [] . . . [T]he lawfulness of the victims conduct forms part of the corpus delicti of the offense. [Citation.] (Manual G.,at p. 815.)

The evidence at trial, that is, the testimony of both Deputy McCormick and defendant, shows that the encounter between Deputy McCormick and defendant was consensual.

A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. [Citation.] (Kaupp v. Texas (2003) 538 U.S. 626, 629 [155 L.Ed.2d 814, 819-820].)

[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to disregard the police and go about his business, [citation], the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. . . . Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. (Florida v. Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2d 389, 398]; see People v. Hughes (2002) 27 Cal.4th 287, 328.)

Here, late at night, Deputy McCormick was dispatched to an area to investigate a suspicious dark colored car. When he arrived in the area, he noticed defendants dark colored car in a turnout in an area used for sledding with the driver hunched down. Deputy McCormick pulled behind defendants car to investigate the automobile and defendant. He radioed dispatch with the license plate number of defendants car. This was not a detention because the deputy did not restrain defendants movement or stop the car and driver for questioning. (See People v. Sandoval (1985) 164 Cal.App.3d 958, 962.)

Defendant testified after the stipulation. Defendant did not dispute the consensual nature of the encounter with the deputy. Defendant claimed he jumped out of his car and approached the deputy with license in hand. He cooperated by responding to questions. Defendant claims on appeal that he was detained because the deputy had been dispatched to investigate a car in the Roxie Peconom area and he was not parked there. The short answer is, that is not the test. The deputys contact with defendant was the least intrusive, i.e., a consensual encounter, where no reasonable suspicion is required. The deputy was not required to ignore defendants lone car parked at night in an area used for sledding with a driver hunched down in the drivers seat. The deputy merely approached defendants already parked car to ask a few questions. Defense counsels performance was not deficient in stipulating and not disputing that Deputy McCormick was engaged in his duties in speaking with defendant.

II

Challenge To CALCRIM Instructions

Defendant next challenges two new criminal jury instructions, CALCRIM Nos. 220 and 222. The trial court instructed the jury in the language of CALCRIM No. 220, the Reasonable Doubt instruction as follows:

The fact that a criminal charge has been filed against the defendant is not evidence any charge is true. You must not be biased against the defendant because he has been arrested, charged with a crime or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved this case beyond a reasonable doubt, you must impartially compare and consider all the evidence received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, hes entitled to an acquittal and you must find him not guilty.

Thereafter, the trial court instructed the jury in the language of CALCRIM No. 222 as follows:

You must decide what the facts are in this case. You must use only the evidence presented in this courtroom. Evidence is the sworn testimony of the witnesses, the exhibits admitted into evidence and anything else I told you to consider as evidence. [] Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case but their remarks are not evidence. Their questions are not evidence. Only the witness answers are evidence. The attorneys[] questions are significant only if they help to understand the witness answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true. [] During the trial the attorneys may have object[e]d to questions or moved to strike answers given by the witnesses. I ruled on the objections according to the law. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. If I ordered testimony stricken from the record, you must disregard it and not consider that testimony for any purpose. [] You must disregard anything you saw or heard when the court was not in session, even if it was done or said by one of the parties or witnesses. [] The court reporter has made a record of everything that was said during the trial. If you decide it is necessary, you may ask that the court reporter[]s notes be read to you. You must accept the court reporter[]s notes as accurate. [] During the trial you were told that the People and the defense agreed or stipulated to certain facts. This means they both accept those facts. Because theres no dispute about those facts you must accept them as true.

Defendant challenges the phrase in CALCRIM No. 220, that the jury was to consider all the evidence that was received throughout the entire trial, and a portion of CALCRIM No. 222 which instructs that the jury is to consider the evidence presented in this courtroom. Defendant contends [t]aken together, these instructions, . . . limited the jurys determination of reasonable doubt to the evidence received at trial and precluded it from considering the lack [of] evidence of [defendants] intent to kill. We reject defendants claim.

In reviewing a challenge to the instructions given to the jury, we consider the entire charge, not parts of an instruction or a particular instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Defendant must show a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Cain (1995) 10 Cal.4th 1, 36-37; People v. Anderson (2007) 152 Cal.App.4th 919, 938.)

The instructions read reasonably show that the jury was fully and fairly instructed on the applicable law. Nowhere in the instructions was the jury told that it was precluded from considering the lack of evidence of defendants intent to kill.

Defendant cites People v. Simpson (1954) 43 Cal.2d 553 and People v. McCullough (1979) 100 Cal.App.3d 169 in support of his argument. They are of no help.

Defendant misreads the instruction given here. The jury was instructed in CALCRIM No. 220 that the prosecution was required to prove its case with the evidence presented at trial (In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial) and with CALCRIM No. 222 which defined evidence in language similar to that of Evidence Code section 140 (Evidence means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact). Unlike the instructions given in People v. McCullough, supra, 100 Cal.App.3d at pages 180 to 182 and People v. Simpson, supra, 43 Cal.2d at pages 564 to 566, the instructions here did not mislead the jury into believing it could not consider the lack of evidence in concluding that the prosecution had not proved its case beyond a reasonable doubt. Indeed, CALCRIM No. 220 specifically instructs the jury that defendant is not required to prove his lack of intent Unless the evidence proves the defendant guilty beyond a reasonable doubt, hes entitled to an acquittal and you must find him not guilty.

Finally, People v. Westbrooks (2007) 151 Cal.App.4th 1500 rejected a similar challenge to CALCRIM No. 220 (id. at pp. 1509-1510) and we reject it here.

III

Correction Of Errors In The Abstract

We note errors in the preparation of both abstracts of judgment. The court sentenced defendant to an indeterminate term as follows: count I, attempted murder of a peace officer engaged in the performance of his duties ( 664, subd. (e)/187, subd. (a)), an indeterminate term of life with possibility of parole with a minimum term of seven years ( 3046, subd. (a)(1)), doubled for the strike prior ( 667, subds. (b)-(i)), or 14 years, plus enhancements of 10 years for the personal use of a firearm ( 12022.53, subd. (b)) and three years for the serious felony prior ( 667.5, subd. (a)). The abstract fails to reflect the serious felony prior, the doubling of the term pursuant to the three strikes law (there is a box for this purpose, No. 8) and the minimum term of 14 years in addition to the enhancements totaling 13 years. The abstract of judgment for the determinate term accurately reflects that the court imposed the upper term of three years, doubled for the strike prior, for count IV, with the same term stayed ( 654) for count V but fails to reflect that defendant was sentenced pursuant to section 667, subdivisions (b) through (i) (there is a box to be checked for this purpose, No. 4). We will order the abstracts corrected accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment for the indeterminate sentence to reflect the minimum term of 14 years on count I, that sentence was imposed pursuant to the three strikes law, and that a three-year term was imposed for the prior serious felony ( 667.5, subd. (a)), and when added to the 10-year term for the firearm enhancement, totals 13 years for the enhancements. The trial court is directed to prepare a corrected abstract of judgment for the determinate sentence to reflect that defendant was sentenced pursuant to section 667, subdivisions (b) through (i). The trial court is directed to forward a certified copy of the corrected abstracts of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

BUTZ , J.

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