Filed 8/16/17 P. v. Vezina CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Daniel Floyd Vezina followed a stranger’s vehicle into a highway turnout. He then aimed and fired a rifle at a passenger from that vehicle. Fortunately, the passenger was uninjured. Vezina was convicted of attempted murder after a bench trial. Vezina contends the verdict is not supported by sufficient evidence. We affirm.

I. Background

Vezina was charged by information with the attempted murder of James and Russell C. (Pen. Code, §§ 187, subd. (a), 664;[1] counts 1, 2); assault with a semiautomatic firearm against James, Russell, and Donald White (§ 245, subd. (b); counts 3, 4, 6); grossly negligent discharge of a firearm that could result in injury or death (§ 246.3, subd. (a); count 5); receipt of a large-capacity magazine (§ 32310, subd. (a); count 7); misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 8); and misdemeanor driving with a blood alcohol content of 0.08 percent or greater (id., § 23152, subd. (b); count 9). It was alleged with respect to counts 1 and 2 that Vezina personally used and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c) and (e)(1). It was further alleged with respect to counts 3, 4 and 6 that he personally used a firearm within the meaning of section 12022.5, subdivision (a), causing those counts to be serious and violent felonies pursuant to sections 1192.7, subdivision (c)(8) and 667.5, subdivision (c)(8).[2]

Vezina waived his right to a jury trial and a bench trial was held. The following evidence was presented at trial.

In the late afternoon of May 2, 2015, Laura Hager and Forrest Haws went to a bar in Half Moon Bay with a friend of Hager’s. Vezina was seated next to Haws at the bar. He persistently tried to make conversation with Hager’s group and became loud and aggressive, cursing under his breath and telling Haws, “You’re not from around here. . . . I don’t trust you.” Haws spoke to the bartender about Vezina’s behavior and the group moved to another part of the room. Vezina returned to the bar, talked to another couple, and again became aggressive and agitated. People working behind the bar asked Vezina to leave and escorted him to the door. Vezina backed across the street, staring at Hager’s group through the bar’s front window and door. When he got to the other side of the street, Vezina stood for a few moments then walked back toward the bar, still staring at Hager’s group and reaching behind his back, which made them very uncomfortable. Vezina then walked to his car, a small black BMW convertible, drove partially up onto the sidewalk, backed up, almost hitting a truck, then drove toward Highway 1. He returned and parked in the same spot about 10 minutes later. Hager’s group left the bar by way of a rear entrance to avoid further contact with Vezina.

In the evening of May 2, 2015, James was driving south on Highway 1 with his brother Russell to go camping at Butano State Park. When passing through Half Moon Bay, they noticed Vezina following them very closely, smiling at them, and weaving somewhat into the adjacent lane but making no attempt to go around them. Russell gestured for Vezina to pass and Vezina responded by smiling and making a “hang loose” hand gesture. James thought Vezina was “messing with” them. After about 10 minutes, James pulled into a highway turnout partly because of the tailgating and partly to secure a sleeping bag stored in the bed of James’s truck. Vezina pulled into the same turnout and parked between 30 and 50 yards behind James’s truck. Russell exited the truck and noticed Vezina was standing between his open driver’s door and driver’s seat, staring at Russell. Russell walked to the back of the truck to adjust the sleeping bag. When he looked at Vezina again, Vezina was standing behind his car. At about that time, James saw Vezina standing behind his BMW with the trunk open. As Russell walked back to the truck, James saw Vezina pointing a long gun at the truck. When Russell was about a foot from the truck’s passenger-side door, Russell heard gunfire and the sound of a whizzing object that seemed to pass about five feet above his head. He turned and saw Vezina holding a long gun that was pointed at him. That gun resembled a rifle later found in Vezina’s trunk. Russell heard James scream that he had seen a gun. Russell jumped in the truck and James quickly drove out of the turnout and south on Highway 1. Russell called 911 and eventually parked behind a gas station in Pescadero to wait for police. The 911 call was made at about 7:00 p.m.

Megan Brennan and Donald Jeffrey White parked their cars in the same turnout that afternoon and walked down to the beach, returning to their cars in the early evening. Brennan backed out of her parking spot and stopped as she spoke to White through her driver’s side window. White observed a vehicle pull into the turnout followed by Vezina’s BMW. He saw Vezina get out of his car, walk quickly to the back of his car, open his trunk, pull out a rifle with a magazine attached, set it on the open trunk lid, aim the rifle, and take a shot. Brennan heard a loud bang and saw a person running toward and jumping in a small truck, which then sped off. She then looked in the other direction and saw Vezina standing behind the open trunk of his BMW pointing a rifle at the truck. White walked to the front of Brennan’s car and said to Vezina, “What the hell are you doing?” Vezina pointed his rifle at White and said in a hostile tone, “What the hell am I doing? What the hell are you doing?” White moved between some cars and Vezina put his rifle back in his trunk, slammed the trunk shut, and drove south on Highway 1. As Brennan called 911, she saw Vezina’s BMW pass the turnout going north on Highway 1 and then return to the turnout. Vezina parked almost nose to nose with Brennan’s car, and said in an eerily calm voice: “Do you guys have a problem? Is there a problem?” Brennan drove north on Highway 1, and Vezina headed south on Highway 1.

After Hager’s group left the bar in Half Moon Bay, Hager and Haws spent some time at the beach to calm down, and then drove to the Pescadero area. On their way back to Half Moon Bay, they saw Vezina parked in a turnout, bent over and reaching for something under his seat. Vezina locked eyes with Hager then pulled out of the turnout and followed them north on Highway 1. As Hager sped up, Vezina sped up behind them. Hager eventually lost sight of Vezina and noticed police vehicles driving south on Highway 1.

San Mateo County Deputy Sheriff John Sanchez pulled Vezina over on Highway 1. In the trunk of his car, police found a rifle with one live round in the chamber and 19 rounds in an attached 20-round magazine.[3] Also found in the trunk were another rifle magazine, two handgun magazines, about 1200 rounds of ammunition for the rifle, five boxes of .40-caliber ammunition, and indicia of ownership by Vezina. Inside the car, tucked between the center console and the passenger seat, police found a loaded .40-caliber pistol with an attached fully-loaded magazine. The rifle and handgun found in Vezina’s car were tested and found operational. No gunshot residue was found on Vezina’s hands or face, but the result was deemed inconclusive as to whether he fired the rifle. Police searched part of the turnout where Vezina had been parked and did not find a rifle cartridge casing. No bullet holes were found in James and Russell’s truck.

A mild odor of alcohol was on Vezina, and he admitted he had consumed two beers and two shots of Fireball. Vezina’s blood was drawn and testing showed that at 11:04 p.m. his blood alcohol content (BAC) was 0.12.[4] Based on this result, a criminalist testified that at about 7:00 p.m. Vezina had a BAC of at least 0.08 and was too impaired to drive.

Firearms experts testified for the prosecution and defense. There was testimony that a rifle is more accurate than a handgun at a distance of 30 to 50 yards. Vezina’s brother, who had been a competitive marksman and was qualified by the court as an expert on firearm accuracy, testified that Vezina’s firearm skills were much above average. At Vezina’s skill level, he opined there was a 99 percent chance he would hit a human being 30 yards away using a rifle of the type that was found in his trunk. However, he could not opine about Vezina’s skill when intoxicated, or with elevated adrenaline levels. He also acknowledged that an unsteady shooting platform and a moving target could affect accuracy. Another firearms expert testified that accuracy is affected by the shooter’s adrenaline level, experience with a particular weapon, intoxication, and movement in the shooting platform and target. Accuracy is also affected by location and the ambient environment, including geographic elevation, temperature and air pressure. A rifle “zeroed” for a high inland elevation would not fire accurately at sea level even at the same distance.

The trial court found Vezina guilty of attempted murder of Russell and assault with a semiautomatic firearm on Russell (counts 2 and 4) and found true the allegations that Vezina personally used and intentionally discharged a firearm in committing those offenses. The court also found Vezina guilty of grossly negligent discharge of a firearm (count 5), and the misdemeanor counts of driving under the influence of alcohol (counts 8, 9). On the attempted murder charge, the court found that Vezina got out of his BMW in the turnout, went to his trunk, opened it, took out the rifle, placed it on the open trunk lid, used the sights, and fired in Russell’s direction. The court found Vezina intended to kill Russell. Missing the target was explained by intoxication, the moveable shooting platform, and the moving target.

Vezina filed a motion asking the court to reconsider the attempted murder conviction. To support the conviction, he argued, “[t]he court must believe beyond a reasonable doubt that in the mind of Mr. Vezina there was an unambiguous intent that upon taking the shot [Russell] be rendered dead.” Vezina’s character and behavior on May 2, 2015, were “odd and strange” and thus inscrutable, failing to support a finding that he acted with an intent to kill with the constitutionally-required level of confidence. The court denied the motion.

The court sentenced Vezina to the lower term of five years for attempted murder plus 20 years for the enhancement; the lower term of three years for assault plus three years on the enhancement, stayed pursuant to section 654; the lower term of 16 months for grossly negligent discharge, stayed pursuant to section 654; six months for driving under the influence of alcohol, to be served concurrently with the attempted murder sentence; and six months concurrent on the driving with a blood alcohol content of .08 percent, stayed pursuant to section 654. His total sentence was 25 years in prison.

II. Discussion

The sole issue Vezina raises on appeal is the sufficiency of the evidence to support his attempted murder conviction.

“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘ “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” ’ [Citations.] [¶] ‘ “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 738–739 (Smith).)

“ ‘[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.] . . . [¶] Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’ [Citation.] . . . Express malice requires a showing that the assailant ‘ “ ‘either desire[s] the result [(i.e., death)] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]” ’ [Citation.] [¶] . . . [¶] [T]he crime of attempted murder is not divided into degrees. [Citation.] The prosecution may seek a jury finding that an attempted murder was ‘willful, deliberate, and premeditated’ for purposes of sentence enhancement (§ 664, subd. (a); [citation].) [Where n]o such special finding was sought . . . , the prosecution had only to prove that defendant purposefully shot at the [victim] with express malice . . . .” (Smith, supra, 37 Cal.4th at pp. 739–740.)

“[W]ith few exceptions, motive itself is not an element of a criminal offense. [Citations.] . . . The crimes of murder and attempted murder are no exception. True, evidence of motive is often probative of intent to kill. . . . But evidence of motive is not required to establish intent to kill, and evidence of motive alone may not always fully explain the shooter’s determination to shoot at a fellow human being with lethal force. [¶] . . . Evidence of motive aside, it is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .” [Citation.]’ [Citations.] ‘ “The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.” [Citation.]’ [Citation.] [¶] ‘f the jury found defendant’s use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferred, [i]even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance.’ ” (Smith, supra, 37 Cal.4th at pp. 740–741.)

Here, the testimony of four witnesses—two of whom (Brennan and White) had no prior relationship with the other two (James and Russell)—established that Vezina fired a rifle at Russell or the truck in what was close range given the weapon used, thus supporting an inference that Vezina intended to kill Russell who was alongside the truck. Three of those witnesses testified that Vezina aimed at Russell or the truck. All four demonstrated Vezina’s stance and White, who had experience with firearms, testified that Vezina was definitely deliberately aiming the rifle. This evidence persuaded the trial court that Vezina aimed the rifle using its sights. Russell testified the bullet traveled “very close” to him and, when pressed, estimated the distance at five feet. The ultimate inaccuracy of Vezina’s shot can be explained by his intoxication, the unsteady shooting platform, Russell’s movement, and the possibility the rifle sights were not properly adjusted. While the court found the testimony of Vezina’s brother credible, the brother’s opinion of Vezina’s marksmanship was compromised by his admitted lack of familiarity with Vezina’s then-current skills or physical abilities, and by his inability to opine on Vezina’s skill while intoxicated or under the influence of adrenaline.

An inference that Vezina intended to kill rather than frighten is further supported by the fact that Vezina did not use a readily-accessible handgun, but went to the trouble of exiting his car, walking to the trunk, removing the rifle (a more accurate weapon at his distance from Russell), and aiming and firing the rifle at Russell. The fact Vezina did not continue shooting after he missed Russell with his first shot may be explained by White’s intervention. While Vezina may have had no apparent rational motive for the attack, “[t]hat the shooter had no particular motive for shooting the victim is not dispositive.” (Smith, supra, 37 Cal.4th at p. 742.) In any event, there was evidence that Vezina acted aggressively and hostilely toward several strangers he encountered that afternoon and evening without provocation and the trial judge could infer from this pattern of behavior that Vezina acted with unprovoked hostile intent in firing toward Russell. “[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice.” (Ibid.)

Vezina attempts to distinguish cases where courts have found sufficient evidence of attempted murder, noting they usually involve either an express threat to kill coupled with an unambiguous act to carry out the threat or an assault with a deadly weapon clearly aimed at the victim and likely to result in death. While we agree those cases are factually distinguishable from this one, Vezina fails to persuade us that the trial court’s findings here are unsupported by substantial evidence or inconsistent with governing law. Courts have upheld attempted murder convictions where the defendant could have but did not keep shooting at the victim after an initial gunshot was not fatal (see People v. Millbrook (2014) 222 Cal.App.4th 1122, 1133–1134, 1149; People v. Houston (2012) 54 Cal.4th 1186, 1217–1218; see also People v. Lashley (1991) 1 Cal.App.4th 938, 943–946 [one shot and claimed intention to only wound victim; no evidence about whether defendant could have fired again]); where the shot missed despite a high potential for accuracy in the circumstances (see Smith, supra, 37 Cal.4th at p. 744); and even where the defendant armed and positioned himself in a location to kill the victim but never aimed or fired (People v. Morales (1992) 5 Cal.App.4th 917, 920–922, 926). “In reviewing sufficiency of evidence claims, each case of necessity turns on its own particular facts.” (Smith, at p. 745.)

Vezina suggests this case is comparable to People v. Miller (1935) 2 Cal.2d 527, but in our view that case is readily distinguishable. The defendant in Miller threatened to kill the victim and complained that authorities had failed to stop the victim from annoying the defendant’s wife. The defendant then walked into a field where the victim was working alongside a constable, and loaded but did not aim his gun as he walked directly toward the two of them. The victim fled and the defendant did not resist as the constable took possession of his gun. (Id. at p. 529.) The Supreme Court overturned an attempted murder conviction because the defendant had not taken a direct act toward commission of murder and there was insufficient evidence of an unequivocal intent to kill such that his mere preparations would be sufficient to support the conviction. (Id. at pp. 530–533.) Here, Vezina took a direct act toward commission of murder, not mere preparations—he fired a rifle in Russell’s direction at close range for that firearm. In such circumstances, ample evidence supported the trial judge’s finding that Vezina acted with an intent to kill.

III. Disposition

The judgment is affirmed.

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BRUINIERS, J.

WE CONCUR:

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JONES, P. J.

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NEEDHAM, J.

A148691