IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
April 14, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ANTHONY LAMONT WILLIAMS, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F03094)
The opinion of the court was delivered by: Hoch, J.
P. v. Williams
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Anthony Lamont Williams, Jr., of assault with a firearm (count 1; Pen. Code, § 245, subd. (a)(2))*fn1 ; negligent discharge of a firearm (count 2; § 246.3); and unlawful possession of a firearm (count 3; § 12021, subd. (c)(1)). As to count 1, the jury found that defendant personally used a firearm (§ 12022.5, subd. (a)).
The trial court suspended imposition of judgment and sentence and placed defendant on formal probation for five years, with conditions including 365 days in county jail (180 days on count 1 and 185 days on count 2, consecutive). The court awarded 38 days actual presentence custody credit and four days conduct credit, totaling 42 days.*fn2
Defendant contends (1) insufficient evidence supports his conviction on count 2, and (2) the trial court erred prejudicially by failing sua sponte to instruct the jury with CALCRIM No. 334 (accomplice testimony) as to witness Derrick Sanders. Finding sufficient evidence and no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, Sanders, who lived in Elk Grove, took in defendant as a roommate; defendant rented out one room of the house. Sanders's teenaged daughter sometimes stayed in the house, as did defendant's girlfriend, Tonica Readus (Tikka).
A. Sanders's Story
On January 20, 2009, Sanders came home in the late afternoon and found the house had been burglarized. The doors to the bedrooms were kicked in, and his room and his daughter's room were torn apart. He estimated that around $13,000 worth of property was missing. He called defendant, who arrived soon after.
A neighbor told Sanders she had seen two women, one of whom looked like Tikka, in a car that had backed into Sanders's garage area. Sanders knew Tikka had sometimes brought a young woman named Jasmine, about the age of Sanders's daughter, over to the house. Defendant said he knew where Jasmine could be found.
Sanders reported the burglary to the police at 8:14 p.m., but was told they could not investigate it immediately because a shooting had priority. Feeling angry and wanting to retrieve their property, Sanders and defendant decided to go to Jasmine's house to confront her. Defendant drove, with Sanders, Tikka, and defendant's young son as passengers.
Arriving at the 7000 block of Middlecoff Way, where Jasmine lived, sometime that evening, defendant dropped his son off at a house down the street, then walked to Jasmine's house along with Sanders and Tikka. Sanders had never been there before and did not know "the lady of the house," Yvette Smith. According to Sanders, he also did not know defendant had a gun.
Smith opened the door. Jasmine (the daughter of Smith's cousin), Smith's daughter Reneisha, and Smith's brother were also in the house.
Sanders introduced himself to Smith and explained the situation. He said the car he saw in the driveway was the one he believed to have been used in the burglary. Reneisha said she had been driving that car all day. Tikka accused Reneisha and Jasmine of the burglary. A physical fight between Tikka and Reneisha ensued.
After the two were separated, Smith told Sanders that defendant and Tikka were setting him up and invited him to search her house. As Sanders started to go in by himself, he heard a gunshot.
Backing out of the house, Sanders saw defendant alone in the area where the shot had come from, about a house length away on the opposite side of the street. In the darkness, he could not make out whether defendant had a gun.
Returning to the house, defendant demanded that Smith give him back his property. He was pointing a black 9-millimeter handgun at her from about three feet away, aiming it between her chest and her head. According to Sanders, Smith did not seem fazed and yelled, "Oh, are you going to shoot me now?"
Sanders spoke to defendant, trying to calm him down and saying they should leave. Sanders would not leave with defendant, so defendant and Tikka got in defendant's car and drove off. Shortly afterward, defendant called Sanders from his car, sounding apologetic about what happened.
As Sanders waited for a friend to pick him up, Sacramento Police Officer Carlyle Mok, responding to a dispatch, arrived at the scene and questioned him. According to Officer Mok, Sanders did not mention a burglary. Sanders said defendant was in the neighborhood to pick up his son; Tikka somehow got in a fight with Smith's daughter; after the fight was broken up defendant fired a shot, then threatened Smith with the gun. Sanders had never seen defendant with a gun before that night.
Sanders went home, but did not find defendant there. Soon after, Elk Grove police came to investigate the reported burglary, but could not find much evidence because the house had already been cleaned up.
The investigating officer, who had also received a report that defendant was involved in a shooting in Sacramento, asked Sanders where defendant was, but Sanders did not know. Sanders told the officer that after he told defendant about Jasmine's suspected part in the burglary, defendant went to Smith's house without him. Sanders also told the officer that he had not observed defendant with a gun, but had since learned of the gun from the Sacramento police.
B. Smith's Story
Sacramento Police Officer Mark Egeland, who took Smith's statement immediately after the incident, testified that Smith described defendant as the person who fired shots, then threatened her with the gun. Smith said she was not afraid of defendant, who was "out of control." Smith told the officer that she wanted to press charges against defendant, and she could identify defendant if she saw him again. However, when Sacramento Police Detective Zachary Bales showed Smith a photographic lineup a week later, she said she could not identify anyone.
At trial, Smith testified that she had seen defendant near her house on the night of the incident, but she did not see him come up to her house, she did not see him with a gun, she did not know who shot a gun, and she was not threatened with a gun by defendant or anyone else that night. She did not remember telling Officer Egeland anything different. All that happened, according to Smith, was that Sanders had come to her door and told her about the burglary, a fight had then broken out between Jasmine and another woman, other people had started fighting, and some unknown person fired a gun.
C. Neighbor's Story
Sometime that night, A.B., who lived on Middlecoff Way about 150 feet from Smith's house, heard yelling and screaming. From A.B.'s driveway, she saw a woman in her 40s and a woman in her 20s (whom A.B. assumed to be mother and daughter) arguing in front of a house three doors down; A.B. knew the older woman lived there. They were yelling at someone A.B. could not see, and she could not make out what anyone was saying. A.B. then heard gunshots. She did not see where the shots came from, nor did she see anyone with a gun. She testified that the women "went crazy" when the shots were fired, as if the shots had been fired "towards them, or right around them." She also heard the women yelling something like, "I can't believe you brought a gun," or "drop the gun." She ran back into her house and called 911, requesting anonymity because "there was a lot of mischief . . . in the neighborhood" and she did not want anyone coming after her.
D. Bullets Found at the Scene
Sacramento Police Department forensic investigator Bridget Wilson observed and photographed two 9-millimeter Luger bullets on the street near Smith's house. When processed, the bullets did not show any latent fingerprints. The investigators did not find a gun, spent casings, or bullet holes.
E. Credibility Issues
Sanders and Smith, the key prosecution witnesses, had credibility issues. Sanders admitted he had perjured himself at defendant's preliminary hearing.*fn3 Sanders entered into an immunity agreement with the People in exchange for testifying truthfully at the trial. As noted, Smith recanted her original accusation and claimed she could not identify defendant.
F. Defendant's Story
Detective Bales arrested defendant after a traffic stop on April 30, 2009. Questioned about his presence on Middlecoff Way on the night of the incident, he denied being there and claimed anyone who said otherwise was lying.
Defendant did not testify or present evidence. Defense counsel argued to the jury that defendant had committed no crime, Sanders had lied about everything, and Smith, by her own account, was not a crime victim because she had testified nothing happened to her.
Defendant contends there was insufficient evidence to support his conviction on count 2 (grossly negligent discharge of a firearm) because, although the evidence showed he fired a gun, it did not show where he aimed it. According to defendant, if the gun was pointing straight down or somewhere other than in the air, firing it was not "per se a negligent discharge." We disagree.
Section 246.3, subdivision (a), provides: "Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense."*fn4
The elements of the offense are: "'(1) the defendant unlawfully discharged a firearm; (2) the defendant did so intentionally; (3) the defendant did so in a grossly negligent manner which could result in the injury or death of a person.' [Citation.]" (People v. Ramirez (2009) 45 Cal.4th 980, 986 (Ramirez).)
Gross negligence means conduct that is "'"such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences."' [Citations.]" (People v. Alonzo (1993) 13 Cal.App.4th 535, 539-540; accord, People v. Clem (2000) 78 Cal.App.4th 346, 352 (Clem).)
Although the bill enacting section 246.3 was introduced "in response to the phenomenon of celebratory gunfire" (shooting into the air to celebrate festive occasions), the statute reaches beyond such conduct to encompass any willful discharge of a firearm in a location where this act creates the potential for death or injury to another person. (Ramirez, supra, 45 Cal.4th at pp. 987-989.) In enacting the statute, the Legislature did not intend to require proof that a given person was actually endangered, because that requirement would "render the statute largely unenforceable in the very circumstances that prompted its enactment." (Id. at p. 990.)
"[S]section 246.3 by its terms presumes that there are reasonable grounds to suspect that people will be endangered. If there are isolated places in this populous state where the willful discharge of a firearm posed no reasonably foreseeable threat to human life, then that act in those places would not violate section 246.3." (Clem, supra, 78 Cal.App.4th at p. 352.)
Where the evidence shows that a defendant fired a gun "in the general vicinity of several persons," even if no one saw where the defendant was pointing the gun, this is sufficient to establish "circumstances which had the potential for resulting in personal injury or death" within the meaning of section 246.3. (People v. Government (2005) 126 Cal.App.4th 1344, 1362-1363 (Government) [holding instruction on § 246.3 should have been given under these circumstances].)
Here, the evidence -- including the testimony of Sanders and A.B., the 911 caller, and Smith's original account to the police -- shows that defendant fired a gun in a residential neighborhood with people nearby. This was sufficient to support his conviction under section 246.3, even though no one saw in what direction he was pointing the gun when he fired. (Ramirez, supra, 45 Cal.4th at pp. 987-989; Government, supra, 126 Cal.App.4th at pp. 1362-1363; Clem, supra, 78 Cal.App.4th at p. 352.) Defendant cites no authority for his position that the statute requires proof the gun was fired in any specific direction, and we know of no such authority. Indeed, such a requirement would render the statute largely unenforceable. (Ramirez, supra, 45 Cal.4th at p. 990.)
Defendant contends the trial court erred prejudicially by failing to instruct the jury sua sponte, pursuant to CALCRIM No. 334, that if a crime was committed, Sanders was an accomplice as a matter of law and the jury could not convict defendant based on Sanders's testimony alone. We conclude the court did not err by failing to give this instruction.
An accomplice is a person "who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.) A witness is liable to prosecution for the same offense if he was a principal in the crime, either by directly committing it or by aiding and abetting another in its commission. (§ 30; People v. Lewis (2001) 26 Cal.4th 334, 368-369.)
If there is evidence to permit a jury to find by a preponderance of the evidence the witness was an accomplice, the trial court must instruct the jury pursuant to CALCRIM No. 334 that the witness's testimony should be viewed with mistrust and must be corroborated by independent evidence to justify a conviction. (People v. Hinton (2006) 37 Cal.4th 839, 879.)
Despite Sanders's testimony that he did not know defendant had brought a gun to Middlecoff Way, the prosecutor stated in closing argument: "[D]id Derrick Sanders know the defendant had a gun when he went over there? Maybe. You know, probably. I mean, they went over there, dropped off . . . the defendant's son, down the street for a reason. [¶] You know, they -- Derrick Sanders was honest about the fact that he was angry when he went over there and he was expecting a confrontation. [¶] Is it beyond the scope of reason to believe that Derrick Sanders knew that the guy he went to confront them with had a gun? Probably not. I mean, maybe he did know. He made it pretty clear that his number one priority at that time was his own criminal liability for what the defendant had done."*fn5
Based on the prosecutor's remarks and Sanders's alleged lack of credibility at trial, defendant asserts (1) the evidence showed, regardless of Sanders's denials, that he knew defendant had a gun, and (2) based on the fact that Sanders knew defendant had a gun, Sanders was an accomplice to all crimes charged against defendant on a theory of aiding and abetting, and the jury should have been so instructed. We are not persuaded.
First, there was no evidence before the jury that Sanders knew defendant had a gun. Sanders's report to the police and his testimony are consistent that he did not know defendant had a gun. No witness testified otherwise. In addition to being contrary to the evidence, the prosecutor's speculation is irrelevant because unsworn statements of counsel are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.) Therefore, defendant has not shown grounds for instructing the jury that Sanders was an accomplice.
Second, CALCRIM No. 334 states in part: "The burden is on the defendant to prove that it is more likely than not that _______ (was/were) [an] accomplice[s]." (CALCRIM (2011) p. 108.) Because defendant put on no evidence, he failed to meet his burden of proof to justify this instruction.
The judgment is affirmed.
We concur: BLEASE, Acting P. J. NICHOLSON, J.