Super. Ct. No. SCD217683 APPEAL from a judgment of the Superior Court of San Diego County, John S. Einhorn, Judge. Affirmed as modified with directions.
The opinion of the court was delivered by: Mcconnell, P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted Michael Dennis Keeper of attempted willful, deliberate, premeditated murder (Pen. Code,*fn2 §§ 664, 187, subd. (a), 189; count 1), assault with a firearm (§ 245, subd. (a)(2); counts 2 & 4), making a criminal threat (§ 422; count 3), and evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 5). As to count 1, the jury found true an allegation Keeper personally discharged a firearm causing great bodily injury (firearm discharge enhancement). (§ 12022.53, subd. (d).) As to counts 2 through 4, the jury found true allegations Keeper personally used a firearm (firearm use enhancement). (§ 12022.5, subd. (a).) As to count 2, the jury also found true an allegation Keeper personally inflicted great bodily injury causing permanent paralysis. (§§ 12022.7, subd. (b), 12022.9.)
The trial court sentenced Keeper to a term of life in prison with the possibility of parole for count 1, plus 25 years to life for the related firearm discharge enhancement. The trial court additionally sentenced Keeper to a prison term of three years for the assault with a firearm conviction in count 4 plus four years for the related firearm use enhancement, and concurrent prison terms for counts 3 and 5 and for the firearm use enhancement related to count 3. The court stayed the execution of sentence for count 2.
Keeper appeals, contending the trial court committed instructional error by: (1) refusing to give an instruction on attempted voluntary manslaughter; (2) refusing to give an instruction on the consideration of testimony by a person with a mental disability; and (3) failing to limit the flight instruction to counts 1 through 4. In addition, Keeper contends the court erred by imposing a concurrent sentence for count 3 rather than staying it under section 654. He also contends his sentence of 25 years to life for the firearm discharge enhancement constitutes cruel and unusual punishment, and that there are errors in the abstract of judgment requiring correction.
The People concede the trial court should have stayed the sentence for count 3 and there are errors in the abstract of judgment requiring correction. We agree and as modified, we affirm the judgment in all other respects.
Jennifer L.'s Version of Events
Keeper and Jennifer L. (Jennifer) once dated and have a teenage son, B. Jennifer later married Matthew L. (Matthew) and they have two young children.
Keeper had visitation rights with B. every Wednesday, plus every other weekend. In recent years, Keeper was often unable to pick up B. for visits because he lacked a job or car; however, Jennifer dropped B. off whenever Keeper had time to see him. They did not have many disagreements regarding visitation until B. became a teenager and no longer wanted to spend as much time with Keeper, which frustrated Keeper.
In December 2008, Jennifer and Matthew attended a holiday party. A neighbor babysat Jennifer and Matthew's two young children. B. planned to stay the night at a friend's house. B. called Jennifer during the party because Keeper had called him and told him he would be picking him up for a fishing trip. B. asked Jennifer to tell Keeper he did not want to go because he had a soccer tournament.
Keeper also called Jennifer during the party and told her he wanted to pick up B. and take him on a fishing trip that weekend. Jennifer did not know about the fishing trip before that day. Jennifer explained to Keeper that B. had a soccer tournament that weekend and did not want to go on the trip. Not dissuaded, Keeper told Jennifer to get B. ready because he was going to pick him up and he hung up on her.
B. called Jennifer again. He told her Keeper called him, said he did not care about the soccer tournament, and directed him to get ready because he was coming to get him. Keeper also called Jennifer again and screamed at her. He directed her once more to get B. ready because he had the fishing trip planned and he was going to pick up B. This time, Jennifer hung up on him.
B. called Jennifer a third time. He was crying and concerned about the way Keeper was acting toward him. Jennifer shared B.'s concern. She told B. to go to his friend's house right away. She also called the babysitter and told the babysitter not to answer the door and to call the police if Keeper came by. Matthew was not involved in any of the phone calls.
On the way home from the party, Jennifer received a text message from the babysitter stating, "Your ex is here. He knocked on the door and I told him no one was home." A few minutes later, when Jennifer and Matthew turned onto their street, Jennifer saw Keeper's van parked in front of their house. Keeper and his friend, Steve Callihan, were talking nearby.
Jennifer and Matthew parked behind Keeper's van and stayed in their car. Keeper noticed Jennifer and walked up to the car. When Jennifer got out, Keeper asked her where B. was. Jennifer told Keeper that B. was staying at a friend's house and had a soccer tournament the next morning. Keeper told Jennifer to call B. and tell him to come home because they were going on a fishing trip. Jennifer called B. to appease Keeper. B. told Jennifer he was not coming home. Jennifer relayed B.'s response to Keeper. As she did so, B. could hear Keeper swearing in the background. B. told Jennifer to hang up and call the police. B. also called the police.
Around this time, Matthew got out of the car and asked Jennifer if she was okay. Keeper told Matthew the matter was none of Matthew's business. Matthew said, "Look, man. Calm down. B. doesn't want to go with you." As this exchange occurred, Jennifer dialed 911. Keeper swore at Matthew and told him again the matter was none of his business. Matthew replied, "Yes, it is. I take care of him. I pay his bills. I feed him."
At this point, Callihan stepped between Keeper and Matthew and told Keeper to calm down. Keeper pushed Callihan away, then pulled a gun, and pushed it against Matthew's chest. Keeper kept telling Matthew to mind his own business. Matthew put his hands up in the air and started walking backwards, saying as he did, "Man, do you really want to do this? Is it really worth it?" Keeper kept swearing at Matthew and shoving the gun at him. Keeper fired two shots at Matthew and Matthew fell to the ground. Keeper then walked over to him and fired more shots at him. Jennifer ran to Matthew. Keeper pointed the gun at her and asked, "Do you want to die, too?"
Upon hearing approaching sirens, Keeper lowered the gun and ran to his van. He called out to Callihan to "come on," but Callihan put up his hands and said, "No way, man." Keeper then drove away.
Callihan's Version of Events
Callihan's perception of events varied from Jennifer's in some key respects. Callihan testified Keeper's wife had asked him to go with Keeper to make sure Keeper did not get into any trouble. On the way to Jennifer and Matthew's house, Keeper angrily told Callihan that he was picking up his son and Matthew "better not get in my face." Callihan tried to calm Keeper down. He did not know Keeper had a gun with him.
Keeper pulled out the gun after Callihan had stepped between Keeper and Matthew. Keeper pointed the gun at Matthew's head and then at Matthew's chest. Matthew told Jennifer to call 911. Matthew asked Keeper, "What are you going to do? Shoot me?" Matthew then said, "Go ahead and shoot me. Shoot me." Matthew kept saying this over and over.
Matthew started backing up while continuing to dare Keeper to shoot him. Keeper put the gun down, then Matthew pushed him and Keeper put the gun back up. Callihan kept telling Keeper, "It's not worth it." Keeper put the gun down again, but Matthew grabbed the hand holding the gun and pulled it to his chest. A few seconds later, a shot fired and went into Matthew's leg. Then, a second shot fired and went into Matthew's chest. Matthew fell to the ground. A few seconds later, Keeper shot Matthew in the face. Jennifer ran over to Matthew. Keeper never said anything to her and never pointed the gun at her.
Afterwards, Keeper told Callihan to get in the van with him, but Callihan declined and Keeper drove off without him. Callihan never told the police about Matthew pushing Keeper, about Matthew pulling Keeper's ...