P. v. Pugh

Filed 1/29/07 P. v. Pugh CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Jack W. Morgan, Judge. Affirmed as modified.

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

INTRODUCTION

A jury convicted defendant and appellant Jonathan Pugh of, among other things, willful, premeditated, and deliberate attempted murder. On appeal, he contends there is insufficient evidence he intended to kill the victim and of premeditation and deliberation. He also contends the trial court erred in instructing the jury and in sentencing him. Because defendants sentence is improper, we modify the judgment, but we otherwise affirm it.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

On February 1, 2005, April Burton and her mother, Beverly Cooks, were sitting in their car. They were parked in front of a Honda that had belonged to Burtons father, whom Burton and Cooks were looking for. While parked, they saw a car pull up, and a girl got out of the car. They also saw defendant, who either got out of the car or came from one of the nearby houses. Defendant had sold drugs to Burtons father.

A little while thereafter, Roshaun Flowers, P-Rag, came by on a bicycle. Flowers went up to defendant, and the two men argued. The argument degenerated into a fist fight, during which the girl who had exited the car tried to hit Flowers with a bat. The fight lasted a couple of minutes. After they stopped hitting each other, defendant walked over to the Honda, pulled something out, turned to Flowers (who Burton thought was about six feet away), and put his arm up. Burton heard a sound like a firecracker and she saw Flowers hunch over because he had been shot in his abdomen, but she never saw a gun. When defendant turned around, however, Cooks saw a gun in defendants hand. Defendant left. Burton later identified defendant from a photographic six-pack.

Meanwhile, Demetress Wesley was driving by. He saw two men hitting each other, and he saw a woman with a bat trying to help one of the men. The fight stopped, and the taller man went to a car and got something that looked like a small stick or crowbar. Wesley then saw a puff of smoke, and he heard a gunshot. He estimated that the victim was barely a foot from the shooter when he was shot. Wesley said the victim was right behind the shooter when he was shot, and it looked as if the victim was chasing or following the shooter. Wesley could not identify the shooter.

Defendant testified at trial that he fought with Flowers, but he denied being the shooter.

II. Procedural background.

Trial was by jury. On September 19, 2005, the jury found defendant guilty of count 1 for attempted murder (Pen. Code,^[1] 187, subd. (a), 664), and they found true the allegation that the offense was committed willfully, deliberately, and with premeditation. The jury found true firearm allegations under section 12022.53, subdivisions (b), (c), and (d). The jury also found defendant guilty of count 2 for assault with a firearm ( 245, subd. (a)(2)), and found true firearm allegations ( 1203.06, subd. (a)(1), 12022.5, subd. (a)). Finally, the jury found defendant guilty of count 3 for possession of a firearm by a felon ( 12021, subd. (a)(1)).

On December 6, 2005, the trial court sentenced defendant to 15 years to life on count 1 plus 25 years under section 12022.53, subdivision (d). The court sentenced him to a concurrent 2 years on count 3, and it did not impose sentence on count 2.

DISCUSSION

I. The evidence is sufficient to support intent to kill and the willful, premeditated, and deliberate finding.

Defendant makes the related contentions that, first, the evidence is insufficient to show he intended to kill Flowers, and, second, the evidence is insufficient to support the jurys finding that the attempted murder was committed willfully, deliberately, and with premeditation. We disagree with both contentions.

In reviewing a sufficiency of evidence claim, the reviewing courts 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 offact 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 witnesss credibility for that of the fact finder. [Citations.] [Citation.] [Citation.] (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).)

Under this standard of review, there was sufficient evidence that (A) defendant intended to kill Flowers, and that (B) defendant acted willfully, deliberately, and with premeditation.

A. There is sufficient evidence defendant intended to kill Flowers.

Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623 (Lee).)  There is rarely direct evidence of a defendants intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendants 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 shooters poor marksmanship necessarily establish a less culpable state of mind. [Citation.] [Citation.] (Smith, supra, 37 Cal.4th at p. 741.) While reasonable minds may differ on the resolution of whether defendant had the intent to kill, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Lashley (1991) 1 Cal.App.4th 938, 946.) Our role is to determine the legal sufficiency of the found facts and not to second guess the reasoning or wisdom of the [jury]. (Ibid.)

The facts here are that defendant and Flowers had a fist fight. After it was over, defendant walked back to his car, got a gun, and shot Flowers at close range in the abdomen. Defendants act of firing at Flowers at close range in a manner that could have inflicted mortal injury is sufficient to support an inference of intent to kill. (Smith, supra, 37 Cal.4th at p. 741.)

Defendant, however, does not cite Smith in his opening brief. He instead cites People v. Ratliff (1986) 41 Cal.3d 675 and People v. Patterson (1989) 209 Cal.App.3d 610 for the proposition that shooting a person at close range in and of itself is not enough to establish intent to kill. Ratliff and Patterson are not on point. The issue in those cases was instructional error, not sufficiency of the evidence. In Ratliff, the trial court improperly instructed the jury on implied malice in connection with attempted murder. In reaching its conclusion that the instructional error was prejudicial, the court merely noted that other than the fact that the victim was shot at close range, there was no further evidence of intent to kill. (People v. Ratliff. supra, at p. 695.) The trial court in Patterson similarly failed to instruct the jury that attempted murder requires proof of express malice and a specific intent to kill. In concluding that the error was prejudicial, the Court of Appeal cited Ratliff. Neither Ratliff nor Patterson, however, state that shooting a person at close range is itself insufficient to establish intent to kill.

To show there is insufficient evidence of his intent to kill, defendant points to the absence of evidence of statements of intent at or near the time of the shooting and of animosity before the fight, as well as to the fact he shot Flowers in the abdomen rather than the chest or head. But where the act of purposefully firing a lethal weapon at another at close range gives rise to an inference of intent to kill, that inference is not dependent on a further showing of any particular motive to kill the victim. This follows from the principle that motive is generally not an element of a crime in the first instance, including the crimes of murder and attempted murder. One may kill with or without a motive and still be found to have acted with express malice. (Smith, supra, 37 Cal.4th at pp. 741-742.) Although statements evidencing defendants intent would certainly buttress a finding he intended to kill Flowers, such evidence is not a prerequisite to that finding. Nor does the fact that defendant shot Flowers in the abdomen instead of the chest or head negate intent to kill. A wound to the abdomen certainly could cause mortal injury, just as could a shot to the chest or to the head.

We therefore conclude that there was sufficient evidence defendant intended to kill Flowers.

B. There was sufficient evidence defendant committed the attempted murder willfully, deliberately, and with premeditation.

Attempted murder requires express malice, and, on appeal, we do not distinguish between attempted murder and completed first degree murder to determine whether there is sufficient evidence to support the finding of premeditation and deliberation. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8.) Malice is express when there is manifested a deliberate intention unlawfully to kill a person. ( 188.)  Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. [Citations.] The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . [Citations.] [Citation.] (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) There are three basic, but not exhaustive, categories of evidence that will sustain a finding of premeditation and deliberation: (1) planning activity; (2) motive; and (3) manner of the killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27; see also People v. Perez (1992) 2 Cal.4th 1117, 1125.) All three factors need not be present to sustain a finding of premeditation and deliberation. (People v. Pride (1992) 3 Cal.4th 195, 247.)

There is sufficient evidence of at least two Andersonfactors to sustain the jurys finding here. Although defendant argues that there is a dearth of evidence as to his motive, he had just argued and had a fist fight with Flowers. Thus, the fight could have been defendants motive for attempting to kill Flowers. The manner of the attempted killing also supports the jurys finding. Defendant and Flowers engaged in a fight for about several minutes. The fight stopped, and defendant went to his car, retrieved the gun, and he then turned and shot Flowers at close range. Although the time in which these events occurred was short, it was certainly time enough for defendant to arrive at a cold and calculated decision to kill Flowers. Indeed, although Wesley testified that it looked to him as if Flowers was chasing or following defendant, the jury could have believed that defendant shot Flowers after the fight was over and he was in no further danger of attack. Instead of leaving, defendant instead deliberately and with premeditation got his gun and shot Flowers.

II. Any instructional error was not prejudicial.

Defendant contends that the trial court erred in instructing the jury that defendant could be found guilty of attempted murder if he harbored implied malice. We hold that any instructional error was not prejudicial.

The trial court instructed the jury with CALJIC No. 8.11 as follows:  Malice may be either express orimplied. [] Malice is express when there is manifested an intention unlawfully to kill a human being. [] Malice is implied when: 1. The killing resulted from an intentional act; [] 2. The natural consequences of the act are dangerous to human life, and [] 3. The act was deliberately performed with knowledge of the danger to and with conscious disregard for, human life. [] When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. [] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed or attempted to kill. [] The word aforethought does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.

The court then instructed the jury with CALJIC No. 8.66: The defendant is accused in count 1 of having committed the crime of attempted murder, in violation of section 664 and 187 of the Penal Code []. [] Every person who attempts to murder another human being is guilty of a violation of Penal Code sections 664 and 187. [] Murder is the unlawful killing of a human being with malice aforethought. [] In order to prove attempted murder, each of the following elements must be proved: [] 1. A direct but ineffectual act was done by one person towards killing another human being; and [] 2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being. [] In deciding whether or not such an act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the killing or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute attempt. However, acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to kill. The acts must be an immediate step in the present execution of the killing, the progress of which would be completed unless interrupted by some circumstances not intended in the original design.^[2]

Although the trial court instructed the jury that attempted murder requires express malice (CALJIC No. 8.66), the court also instructed the jury on implied malice (CALJIC No. 8.11). Implied malice instructions, however, should never be given in relation to attempted murder charges. (People v. Lee (1987) 43 Cal.3d 666, 670.) Any instruction defining attempt to commit murder which specifically affords the jury the opportunity to convict on the basis of implied malice is just plain wrong . . . . (People v. Santascoy (1984) 153 Cal.App.3d 909, 919.) Where such error has occurred, we must examine whether it is prejudicial under Chapman v. California (1967) 386 U.S. 18, 24-25. (People v. Lee, supra, 43 Cal.3d at p. 676 [error was harmless because correct instructions were given, there was strong evidence of intent to kill, and closing arguments were directed at the question of specific intent to kill].)

The instructional error here was not prejudicial. Although the trial court instructed the jury with CALJIC No. 8.11, the jury was also correctly instructed with CALJIC Nos. 8.66 and 3.31, both of which instruct the jury on specific intent. Moreover, the jury was instructed on and made separate findings that the crime was committed with deliberation and premeditation.^[3]Premeditation and deliberation is the equivalent of express malice. (People v. Catlin (2001) 26 Cal.4th 81, 151.) Therefore, by finding that defendant acted with premeditation and deliberation, the jury necessarily found that defendant acted with express, and not implied, malice.

Defendant, however, argues that the error was prejudicial because the evidence was not strong on the issue of intent and because the prosecutor argued implied malice in her closing argument. We agree that this was not a case in which evidence of the defendants intent to kill was quite strong. (People v. Lee, supra, 43 Cal.3d at p. 677 [defendant fired one shot at the victim and attempted to fire a second].) Still, it was undisputedexcept by defendantthat he fought with Flowers and then walked back to his car, got the gun, and shot Flowers. The jury also clearly found that defendant acted with express malice based on its finding that defendant acted with premeditation and deliberation.

Next, the prosecutor did not argue to the jury it could find defendant guilty of attempted murder under an implied malice theory. Rather, the prosecutor set forth facts to show that defendant had the specific intent to commit this murder[.] She argued that defendant acted intentionallyhe went to his car, reached in, pulled out a gun, turned around, and shot the gun at Flowers. She then said that the act of shooting at another person is inherently dangerous, and she made the following comments, to which defendant now takes exception: And was he aware of the inherent danger? Of course, he was. They were in a fist fight. He was angry. He chose at that point to go back to the car to get the gun to end the fight, to show that he was going to win the fight. He knew what the gun was going to do. He was going to shoot somebody. And he was up close. It was, of course, inherently dangerous. [] Think about the fact of Im approximately five to six feet, maybe seven feet away from the people here in the front row. That was approximately how far away the witnesses testified to. To stand and with your arm outstretched with a handgun and shoot once pointing at somebodys abdomen, chest area, that is an inherently dangerous act. To pull your arm outstretched so you can get an even closer proximity of that person, that is inherently dangerous, that is intention, and that is being aware of the fact when that bullet and when you pull that trigger that probably what is going to happen you have a very good shot at that person and you may kill that person. [] And in this case, that is why hes charged with attempted murder.

Placed in context, the prosecutor made the above comments as part of her argument why defendant had the specific intent to kill Flowers. She was not arguing implied malice. In fact, she never used the words implied malice, and it is not probable that the jury equated her use of the words inherently dangerous with implied malice. (Cf. People v. Beck (2005) 126 Cal.App.4th 518, 525 [error in instructing jury with CALJIC 8.11 was prejudicial where prosecutor argued to the jury it could find defendant guilty of attempted murder under an implied malice theory and where jury said it needed clarification of definition of intent].)

We therefore conclude that any instructional error was harmless.

III. Defendants sentence.

The trial court imposed a sentence of 15 years to life on count 1, plus a consecutive 25 years to life under section 12022.53, subdivision (d). But if the crime attempted is willful, deliberate, and premeditated murder, the defendant shall be sentenced to prison for life with the possibility of parole. ( 664, subd. (a).) The court therefore should have sentenced defendant to life term under section 664, subdivision (a), plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). The abstract of judgment must be corrected.

DISPOSITION

The abstract of judgment must be corrected to reflect that the sentence on count 1 should be a life term consecutive to a term of 25 years to life. The clerk of the superior court is directed to correct the abstract of judgment and to forward the corrected abstract to the Department of Corrections. The judgment is otherwise affirmed as modified. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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

^[2] The jury was also instructed with CALJIC No. 3.31: In the crime charged in Count 1, attempted murder, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists, the crime or allegation to which it relates is not committed or is not true. [] The specific intent required is included in the definition of the crimes set forth elsewhere in these instructions.

^[3] The jury was instructed with CALJIC No. 8.67: It is also alleged in count 1 that the crime attempted was willful, deliberate, and premeditated. If you find the defendant guilty of attempted murder, you must determine whether this allegation is true or not true. [] Wilfull means intentional. Deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. Premeditated means considered beforehand. [] If you find the attempted murder was preceded and accompanied by a clear, deliberate intent to kill, which was the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate, and premeditated murder. [] The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. [] The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation. [] To constitute willful, deliberate, and premeditated attempted murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being. [] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you may find it to be not true. [] You will include a special finding on that question in your verdict, using a form that will be supplied for that purpose.