P. v. George

Filed 1/30/07 P. v. George CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.}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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara R. Johnson, Judge. Affirmed.

Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

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The jury found defendant Deandre George guilty of the willful, deliberate, and premeditated attempted murder of Lateef Williams and Orsi Aguirre in violation of Penal Code, sections 664, subdivision (a) and 187,^[1]and shooting at an occupied motor vehicle in violation of section 246. As to all three offenses, the jury found true the special firearm allegationsthat defendant personally and intentionally discharged a firearm causing great bodily injury to both victims ( 12022.53, subds. (b)-(d), 12022.7, subd. (a)) and the allegation that each offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(C)).^[2] The trial court imposed concurrent terms of 40 years to life for the attempted murder convictions (life terms for the underlying offense, plus 25 years to life for the personal use of a firearm enhancement, and 10 years for the gang enhancement). Defendants five-year middle term sentence for the section 246 conviction was stayed under section 654.

In his timely appeal, defendant contends (1) there was constitutionally insufficient evidence to support his conviction for shooting at an occupied vehicle and (2) the trial court prejudicially erred in giving the CALJIC No. 2.90 pattern instruction defining reasonable doubt without an additional clarifying instruction defendant proposed. We reject both contentions and affirm.

STATEMENT OF FACTS

On September 18, 2004, at approximately 2:00 a.m., Williams was driving home with his friend Aguirre. As he drove his black Chevrolet Tahoe southbound on Crenshaw Boulevard, Williams stopped the car for the red light at the Hyde Park Boulevard intersection and rested his head on his arm. Aguirre was in the front passenger seat with his window rolled down. Defendant, who had been walking in the same direction on Crenshaw,^[3]approached the Tahoe. From approximately seven feet away, defendant asked Aguirre where he was from, which Aguirre understood as a question about gang affiliation. Williams turned to look out the passenger side window, when he heard Aguirre speaking to someone. Aguirre told defendant, I dont bang. I bang for Jesus Christ. To bang means to be a member of a criminal street gang; Aguirre meant that he was not associated with any gang. Defendant said, This is 60s, meaning that he was a member of the Neighborhood Rolling 60s Crips gang.

Aguirre reiterated to defendant that his only affiliation was with Jesus Christ. Turning to Williams, Aguirre said, I think we need to get out of here. Defendant pulled his shirt up, revealing a handgun in his waistband. Defendant removed the weapon, pointed it at Aguirre, and fired, inflicting a total of seven gunshot wounds to Aguirres elbow, hand, and stomach.

Williams heard the gunshots and saw defendant holding a semiautomatic handgun. Defendant was holding the gun sideways, pointing at Williams and Aguirre. Williams immediately pressed the accelerator, but heard more gunshots, smelled gun powder, and saw gun flashes. He felt his right leg go numb and used his left leg to work the gas pedal. Williams felt a bullet strike his torso. He saw that Aguirre was bleeding. As Williams would discover, one gunshot had passed through Aguirres stomach and entered Williamss side. Williams contacted the On Star emergency operator and told her that he and his passenger had been shot. He was directed to DanielFreemanHospital, where the two victims were assisted by emergency room personnel. Williams spent weeks in the hospital, undergoing two surgeries to repair his lacerated duodenum and related injuries. He lost substantial parts of his stomach, intestines, and liver, along with his appendix. He still has a bullet in his hip. Aguirre required surgery to remove a bullet from his hand. There were numerous bullet holes in Williamss Tahoe. One bullet was lodged in the driver side door.

Williams never had a gang affiliation and had never met defendant. He was an apprentice with Southern California Edison, and he was a certified Emergency Medical Technician. Aguirre had no gang affiliation either.

Williams identified defendant at trial, at the preliminary hearing, and from a photographic six-pack lineup on October 15, 2004. Before doing so, he was given the standard police admonition; he was not pressured to identify any photograph. He was confident of all his identifications. Aguirre also identified defendant in court and from a six-pack on September 21, 2004, having received and understood the same admonition.

Officer Jeff Martin of the Los Angeles Police Department had extensive experience with the Neighborhood Rolling 60s Crips. The location of the shooting was within the gangs territory. Defendant had admitted being a member of the Rolling 60s to Officer Martin; his gang moniker was C-Ball. Defendant was one of the persons named in an injunction against the Rolling 60s based on nuisance activity by its members.

Officer David Ross also testified as an expert on the Rolling 60s. Its members challenge strangers by asking where they are from to find out whether they are members of a rival gang. A strangers failure to give the right answer often leads to a violent confrontation. Indeed, there is no correct answer. The shooting location was in the heart of Rolling 60s territory. In 2004, defendant, while in a notorious gang location, admitted being a Rolling 60s member to Officer Ross. Defendant made the same admission to another officer under similar circumstances.

Officer Ross opined that the underlying shooting incident was committed for the benefit of the Rolling 60s gang because the two victims were driving through a major entrance point into gang territory; defendant made a gang challenge to persons who were strangers; Aguirres response would likely have been perceived as being disrespectful to the gang; and the shooting would enhance the gangs reputation for violence in the community. Officer Ross also testified as to two gang-related crimes committed by other Rolling 60s members.

Defense

Delbert House, defendants investigator, testified that the distance to the intersection of Crenshaw Boulevardand Hyde Park Boulevardfrom the Cornet Motel was 479 feet. Driving at a speed of 25 miles per hour, it would take eight seconds to cover that distance. The stoplight at the intersection of Crenshaw and Hyde Parktakes 30 seconds to change from red to green.

Psychologist Robert Shomer, an expert in eyewitness identification, testified that such identifications are extremely unreliable, especially with respect to strangers seen under difficult circumstances. Experimental data show that making an accurate identification is more difficult when the observer is under stressful conditions, such as being under the threat of violence because the observers attention is distracted. A number of faulty procedures can negatively impact the reliability of an identification from a photographic lineup, including the presentation of all photographs at once (as was done for the victim-witnesses in this case), rather than serially. Once a person has identified an individual, he or she will tend to maintain that same identification, emphasizing the circumstances that tend to support the initial identification and even revising his or her memories to fit the identification. Memories fade to a large degree 24 hours after the event. A persons confidence in making an identification has no reliable correlation to the accuracy of the identification.

DISCUSSION

Sufficiency of Evidence

Defendant contends insufficient evidence supported his conviction for shooting into an occupied motor vehicle because the jurys special findings that defendant intended to kill the two occupants demonstrated defendant intended only to shoot the victims, not the car. However, as the evidence strongly supported the reasonable inference that defendant intended to shoot both at the car and the occupants therein, we reject this argument.

The standard of review is well settled. In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] We apply an identical standard under the California Constitution. [Citation.] In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1175.)

We therefore review the record in the light most favorable to the prosecution to determine whether the challenged convictions are supported by substantial evidence, meaning evidence which is reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 578.) In contrast, mere speculation cannot support a conviction. [Citations.] (People v. Marshall (1997) 15 Cal.4th 1, 35.) In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citations.] (People v. Young, supra, 34 Cal.4th at p. 1181.)

As the jury was instructed, there are two elements of a section 246 offense(1) discharging a firearm at an occupied motor vehicle (or other enumerated target) and (2) doing so willfully and maliciously. ( 246; CALJIC No. 9.03; see People v. Overman (2005) 126 Cal.App.4th 1344, 1356 (Overman).) Section 246 is a general intent crime. (Overman, supra, 126 Cal.App.45th at p. 1356, citing People v. Watie (2002) 100 Cal.App.4th 866, 879.) As for all general intent crimes, the question is whether the defendant intended to do the proscribed act. (Ibid., citing People v. Jischke (1996) 51 Cal.App.4th 552, 556.)

Contrary to defendants assertion, the prosecution was not required to prove that defendants ultimate target was the Tahoe. [S]ection 246 is not limited to shooting directly at a proscribed target. Nor does the statute require a specific intent to strike the target. (Overman, supra, 126 Cal.App.4th at p. 1357.) As the Overman court explained: The act of shooting at an inhabited or occupied target was defined in People v. Chavira (1970) 3 Cal.App.3d 988 (Chavira). There, the defendant and his associates fired several shots at persons congregated in front of, and on the driveway leading to an inhabited dwelling. [Citation.] The defendant argued that the evidence was insufficient to support his section 246 conviction, because he did not fire at the dwelling but at persons outside it. [Citation.] The court rejected this argument, noting that [d]efendant and his associates engaged in a fusillade of shots directed primarily at persons standing close to a dwelling. [Citation] On this basis, the court reasoned, [t]he jury was entitled to conclude that they were aware of the probability that some shots would hit the building and that they were consciously indifferent to that result. That is a sufficient intent to satisfy the statutory requirement [of section 246]. [Citation]. (Overman, supra, 126 Cal.App.4th at p. 1356; see also People v. Cruz (1995) 38 Cal.App.4th 427, 433.)

The evidence in support of defendants section 246 conviction was reasonable, credible, and strong. There was unchallenged evidence that defendant stood outside the Tahoe and fired into it at close range, striking both occupants and the vehicle itself. The fact that the jury found defendant fired his handgun with the intent of killing Williams and Aguirre in no way precluded the reasonable inference that he also intended to shoot at the vehicle. Certainly, there was no evidence that defendant intended to avoid shooting at the Tahoe. Accordingly, defendants insufficiency of evidence contention fails. (See Overman, supra, 126 Cal.App.4th at pp. 1356-1357; Chavira, supra, 3 Cal.App.3d at pp. 992-993; People v. Cruz, supra, 38 Cal.App.4th at p. 433.)

Reasonable Doubt Instruction

Defendant contends the trial court erroneously failed to give his proffered special instruction concerning the reasonable doubt burden of proof. According to defendant, the clarifying language in his proposed special instruction was necessary to protect his federal constitutional rights to due process and a fair trial. We follow the settled state and federal authorities and reject this claim.

In addition to the standard reasonable doubt instruction, CALJIC No. 2.90,^[4]defendant requested a clarifying instruction based on People v. Redmond (1969) 71 Cal.2d 745, 756 and People v. Hall (1964) 62 Cal.2d 104, 112, to the effect that proof to a near certainty is required for a conviction. The trial court refused to give defendants proposed instruction and instructed the jury with the current version of CALJIC No. 2.90.

We follow People v. Wade (1971) 15 Cal.App.3d 16, which rejected this precise argument. As the Wade court explained, No intent is indicated by People v. Hall[, supra, 62 Cal.2d 104], to impose a higher or different standard of proof in criminal actions than the widely accepted criteria embraced in the trial courts instructions. [Citation.] (Wade, supra, 15 Cal.App.3d at p. 26.) More recently, People v. Hearon (1999) 72 Cal.App.4th 1285 made it clear that the standard instruction defining reasonable doubt as the state in which jurors cannot say they feel an abiding conviction of the truth of the charge adequately guides the jury as to the level of certainty needed to convict, and is not defective. (Id. at pp. 1286-1287 & fn. 1.) Additionally, section 1096a provides no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given in addition to the statutory definition, which is set forth by CALJIC No. 2.90. As the Hearon court pointed out, defendants contention consistently has been rejected by every appellate district, as well as the Ninth Circuit Court of Appeals. (People v. Hearon, supra, 72 Cal.App.4th at pp. 1286-1287.)

Accordingly, we find no cognizable basis for defendants federal constitutional challenge. The United States Supreme Court upheld the prior version of CALJIC No. 2.90 in Victor v. Nebraska (1994) 511 U.S.1, and defendant offers no reason why the current version (which incorporated the Supreme Courts recommended modifications) would fail to pass constitutional muster. (See, e.g., People v. Seaton (2001) 26 Cal.4th 598, 668; People v. Aguilar (1997) 58 Cal.App.4th 1196, 1207-1209.) Defendants contention fails.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

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^[1] All further statutory citations are to the Penal Code.

^[2] The trial court dismissed the prosecutions prior prison term allegation pursuant to section 1385.

^[3] Aguirre testified that he had seen defendant walking southbound from the Cornet Motel, where a group of persons had congregated.

^[4] A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt. [] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (CALJIC No. 2.90.)