P. v. Huff

Filed 7/26/06 P. v. Huff CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. Frank Dougherty, Judge.

Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.

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STATEMENT OF THE CASE

On June 9, 2004, the Merced County District Attorney filed an information in superior court charging appellant William Terry Huff as follows:

Count I--first degree murder (Pen. Code,^[1] § 187);

Count II--possession of firearm by felon (§ 12021, subd. (a)(1));

Count III--unlawful possession of ammunition (§ 12316, subd. (b)(1)); and

Count IV--unlawful possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)).

As to count I, the district attorney specially alleged appellant had sustained a prior felony conviction (§ 1170.12, subd. (c)(1)); discharged a firearm and inflicted great bodily injury in the commission of the crime (§§ 12022.7, 12022.53, subd. (d)); personally used a firearm (§ 12022.5, subd. (a)(1)); sustained a serious felony conviction (§ 667, subd. (a)(1)); and served three prior prison terms (§ 667.5, subd. (b)).

As to counts II-IV, the district attorney specially alleged appellant had sustained a prior felony conviction (§ 1170.12, subd. (c)(1)) and served three prior prison terms (§ 667.5, subd. (b)).

On June 10, 2004, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On March 1, 2005, after numerous continuances, appellant filed a motion in limine to admit evidence of a death threat from the victim and to preclude the prosecution from alluding to the fact that appellant was on parole at the time of the charged offenses.

On March 3, 2005, the district attorney filed motions in limine to exclude evidence of the victim's character for violence (Evid. Code, § 1103) and to exclude evidence of the victim's drug use before and during the incident underlying the homicide count (Evid. Code, § 352).

On the same date, the court ruled that reputation evidence would not be admitted and jury trial commenced.

On March 4, 2005, appellant pleaded guilty to counts II, III, and IV and admitted the special allegations associated with those substantive charges. At that same hearing, the court bifurcated trial of the prior felony conviction/prior prison term allegations associated with count I.

On March 7, 2005, the evidentiary portion of appellant's jury trial commenced.

On March 15, 2005, appellant admitted the prior felony conviction/prior prison term allegations associated with count I.

On the same date, the jury returned verdicts finding appellant guilty of second degree murder as to count I and finding true the special allegations that appellant personally discharged a firearm causing great bodily injury and that he personally used a firearm.

On April 27, 2005, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of 64 years four months to life in state prison. The court imposed a doubled term of 30 years to life on count I, a consecutive term of 25 years to life for the related personal discharge of a firearm, a consecutive term of five years for the prior serious felony conviction, and three consecutive one-year terms for each of the prior prison term enhancements. As to count II, the court stayed a six-year term of imprisonment (Pen. Code, § 654). The court imposed a concurrent term of six years (a doubled upper term of three years) on count III. As to count IV, the court imposed a consecutive term of 16 months (one-third of the middle term doubled). The total determinate sentence was nine years four months. The court struck the remaining enhancements

On May 26, 2005, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

In 2003, appellant lived in a fifth-wheel trailer at the H & H RV Repair (H & H) commercial property on Ashby Road in Merced. Appellant worked as a night watchman and handyman for the H & H firm. At one point, appellant and one Sherry Suit (Ms. Suit) had lived together in a romantic relationship. Ms. Suit terminated their cohabitation a few days before December 15, 2003. Earl Jones^[2] (Jones) knew both appellant and Sherry Suit. During the early morning hours of December 16, 2003, Jones and his wife, Linda, received a telephone call from appellant. Appellant told Jones to go to H & H because Ms. Suit had been badly injured. Appellant did not say that she had been injured in an accident.

Earl Jones drove to appellant's trailer. Although the gate to the property was usually locked at that time of day, Jones found the gate open and appellant not present. A camera faced the gate in front of appellant's trailer. The camera was designed to record activity at the entrance gate and allow footage to be viewed from a monitor in appellant's trailer. Normally the area of the camera was well lit but on December 16, 2003, it was dark. Jones discovered Ms. Suit's body on the ground next to appellant's trailer. The body was leaning against an outdoor refrigerator. Jones saw blood coming from Ms. Suit's chin and mouth. Jones also saw a mark on her left cheek. Jones called 911 but Ms. Suit was deceased by the time paramedics arrived 15 minutes later.

Law enforcement officers found a pair of blue coveralls spread over the victim's body and a glove with red coloration on the top of the outdoor refrigerator. Officers also found an electric blanket near the victim's body. The blanket was still plugged in and was warm to the touch. The victim had a closed folding knife, a closed buck knife, and a small canister of mace on her person. Merced County Sheriff's Detective Keith McClain said there was no aroma indicating the mace had been recently discharged.

According to Detective Jeffrey Coburn, Merced County Sheriff's detectives conducted three searches of appellant's trailer. The first search took place when the deputies were summoned to the scene in response to a call about a shooting. The deputies initially did not know that Ms. Suit had died from a gunshot wound as there were only two flashlights in use at the scene. After a pathologist advised deputies of the apparent cause of death, they searched appellant's trailer on the afternoon of December 16 and found a .22-caliber rifle in a cardboard tube on top of a storage shed. They conducted a third search on December 17 after interviewing appellant.

On December 16, 2003, Detective McClain and Deputy Sheriff Leslie Sziraki were traveling to Winton to conduct interviews in connection with the death of Ms. Suit. As Sziraki proceeded down Santa Fe Drive, he saw appellant walk out of the middle of a field. Sziraki parked and established contact with appellant. Detective McClain subsequently interviewed appellant on December 16 and 17, 2003, after appellant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 on each occasion.^[3] During the December 16 interview, appellant claimed the shooting was an accident. He maintained the gun went off accidentally when he used the barrel to flick Ms. Suit's sunglasses off her head:

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