IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DOMINICK WEST, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F10252)
The opinion of the court was delivered by: Butz , J.
P. v. West CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Dominick West of second degree murder as a lesser included offense; it sustained allegations that in committing the offense defendant personally fired a gun from a motor vehicle with the intent to inflict great bodily injury. The jury also convicted him of making a criminal threat against a different victim at another location, sustaining an allegation that he personally used a gun in committing the offense. The trial court sentenced defendant to state prison for a term of 51 years to life, awarding only custody credits in accordance with the prohibition in Penal Code section 2933.2*fn1 on presentence conduct credits for defendants convicted of murder.
On appeal, defendant contends the trial court erred when it excluded evidence of third party culpability for the murder. He also argues there is insufficient evidence of a criminal threat. Finally, he asserts there is insufficient evidence to support an award of $10,000 in restitution to the murder victim's family. We shall affirm the judgment, but must vacate the restitution order.
Defendant paints a thorough picture of the evidence at trial, particularly highlighting inconsistencies or any potential for bias in the circumstantial and direct evidence connecting him with the offenses. However, as he does not contest the sufficiency of the evidence identifying him as the perpetrator, and we do not need to assess prejudice from any error, our account is more streamlined.
On the afternoon of June 1, 2007, a friend used his credit card to rent a silver 2007 Ford Taurus for defendant (who did not have a credit card). Defendant was still driving the car on June 9 when a police officer detained him to compare his appearance with a composite sketch of the suspect in the offenses involved here. (During the traffic stop, defendant jocularly denied any involvement and the officer let defendant continue on his way.)
The events being investigated took place after 1:00 a.m. on June 2. A patron had been at the Avalon Club at 15th and I Streets with friends. His gray Cadillac CTS was parked around the corner. Returning to the car, he heard one of his friends talking. The Avalon patron turned and saw that his friend was talking with a man in a car, which appeared to be white or silver with a Taurus silhouette.*fn2 As the Avalon patron was about to get into his car, the Taurus driver asked him where to find girls. In describing the Avalon clientele, the Avalon patron apparently rankled the Taurus driver when he called him "Dude." The Avalon patron then told his companions to get into the car (feeling the situation was starting to heat up and wanting to avoid any problems).
As the Avalon patron started to get into his car, one of his friends "scamper[ed]" into it quickly. The Avalon patron turned around and heard the Taurus driver say he would not tolerate any disrespect and was willing to hurt someone that evening. The Avalon patron told him he did not want any problems with him; the Taurus driver then brandished a large black "scary" handgun with a long barrel that made the patron afraid. The Avalon patron backed into his car as the Taurus driver stuck the gun out of the window of the Taurus and pointed it at him. The Avalon patron took this gesture "pretty seriously." He was afraid something could happen at any moment, and thus needed to get out of the area. He could not understand how the situation had escalated to this "scary and terrifying" point. The Taurus driver repeated that he was serious about hurting someone around there and then accelerated away.
The Avalon patron and his friends debated whether they should call the police. They attempted to follow the Taurus. They were unable to connect with 911 (reaching the Highway Patrol instead), and were not able to get the license plate number of the Taurus. After following for a few blocks, they decided to head home.
A patron from Stockton was leaving the Empire Club on 15th and R Streets at closing time. He walked with a friend to the friend's car, about a block away. A white car stopped next to him. It looked like a Ford Taurus. The driver called out to him. The Stockton patron approached the driver, who asked whether anything interesting was happening. The Stockton man bent down to see the driver and noticed a black gun-shaped object in the driver's hand in his lap. The driver mentioned that he was looking for someone and intended to shoot them. The Stockton patron thought it prudent to back off; he returned to his friend's car. The friend, who had approached the Taurus with him, had already retreated to his car after seeing part of a gun. In November 2008, the friend told a detective that he thought the car was a blue Taurus.
Another Empire patron left after the club turned up the lights. She and her friend were paused at a stop sign in their car at the corner of 14th and S Streets when a "light-colored" car drove slowly past them on S Street headed west. She saw the driver look in their direction and point a black gun at them.
The murder victim, Mary Ourk, lived in Sacramento with her boyfriend. A girlfriend who had known the murder victim since their school days in Stockton drove up in her dark blue Volkswagen Jetta to visit on June 1. They planned to go to the Empire Club that evening with other friends from Stockton who had joined them. (The Empire patron from Stockton was casually familiar with a couple of people in their group.) They left the Empire Club at closing time. The murder victim decided to drive her girlfriend home in her boyfriend's white Camaro, as the girlfriend had been drinking. As they drove south toward the freeway, the girlfriend made a brief call to a male friend in Stockton.
When they came to the first stop sign, a car behind them honked. The girlfriend could see only the outline of a solitary driver. The car followed them closely and then honked at them again at the next stop sign. At the stop sign on the corner of 12th and W Streets, the murder victim intended to make a right turn onto W Street. The other car pulled closely alongside them to their left. The girlfriend (who asserted her familiarity with the car's model) described it as being a white, older model Chevy Malibu, and was certain that it was not a Taurus. She was able to give only a general description of the driver, because she had glanced only briefly at him before a gunshot went off; she was not asked to identify defendant in court. Glass from the driver's window flew into her face. When she was able to look up again, the other car was gone.
The Camaro began rolling forward, and the girlfriend first noticed that the murder victim was unconscious. She got out of the car, and was able to open the driver's door and stop the car. She flagged down a car exiting the freeway to call 911, and called the victim's boyfriend (who was driving her Jetta) on the murder victim's phone (having lost her own phone somewhere during the shooting).
A couple of days after the incident, the Avalon patron called the police and provided the assailant's description to a sketch artist. In December 2008, he tentatively identified defendant in a live line-up. He saw a picture of defendant in a newspaper article a couple of weeks later, which confirmed his opinion that defendant had been the Taurus driver. He also identified defendant in court.
The Empire patron from Stockton also provided a description to a sketch artist a few days after the shooting. It was more detailed than the Avalon patron's description, and deviated in some respects from it, most notably in the lack of any facial hair. He was not able to identify anyone in the live line-up, and did not believe he had enough of a recollection of the person he had seen to identify defendant in court.
At the time of the shooting, defendant was living with a woman who was seven months pregnant with their child. She testified that he called her at 1:00 or 2:00 o'clock in the morning on June 2, 2007, sounding drunk and upset. When he got home, he said he had gotten into a fight at a club; as he was driving later, he saw the other person in another car, who did something that made defendant feel threatened. He shot at the other car to scare them. The next morning, defendant used his cohabitant's laptop to find out that a young woman had been killed, and he was distraught. She did not call the police about this at the time because they were having a child together.
In September 2007, defendant began a sexual relationship with another woman as well. The mistress testified that he told her in November 2007 that he had shot someone, and also complained that his cohabitant had information about him that would cause big trouble for him. In January 2008, the mistress and defendant were arrested on state pimping and pandering charges.
Defendant's cohabitant and his mistress became acquainted in February 2008 after the arrest. In a plotline out of Diabolique, they became close friends. The cohabitant shared the information about defendant's admissions. In June 2008, the mistress was arrested on federal pimping charges. In exchange for the dismissal of the federal charges and the reduction of the state charges to a misdemeanor, the mistress told prosecutors from both offices about defendant's admissions to his cohabitant. At their behest, she wore a concealed microphone during her next lunch with the cohabitant, who made a number of corroborating remarks. Confronted with the recording, the cohabitant reached an agreement under which she would receive immunity for testifying.
Defendant testified. On the night of June 1, he had been driving a silver Infiniti G35 that belonged to his cohabitant because she hid the keys to the rental car after an argument. He denied shooting the murder victim or firing a gun at any car, or telling his cohabitant that he had. He had not been anywhere near the Avalon or Empire clubs that night, or in the vicinity of 12th and W Streets. He had spent the night in a West Sacramento motel room with two women he had met.
I. Exclusion of Third Party Culpability Evidence
Defendant's trial briefs asserted an intention to introduce evidence of third party culpability. The briefs put forth the theory that in June 2007 the murder victim's girlfriend was in both a long-term relationship with a boyfriend and a strictly sexual affair with the man whom she had called just before the shooting of the victim. This paramour was the same race as defendant and owned a silver Taurus. The girlfriend had told detectives that the paramour did not own a Taurus and that she was not good at identifying cars. She also claimed each of her partners were aware of the other's existence. The paramour told detectives that he was at home when the girlfriend called to ask him to come to Sacramento, and she did not have any other boyfriends. Detectives had failed to check cell tower records to determine the paramour's location when he received the call from the girlfriend. Defendant asserted the shooting was an attempt on the part of the paramour to kill the girlfriend that missed and killed the murder victim. Witnesses described the girlfriend as being unusually unemotional immediately after the shooting and during her interview with police hours later, and defendant argued this indicated she was disturbed about having seen her paramour shoot at them.
The trial court conducted a pretrial hearing on the issue. The prosecutor contended the theory of culpability rested solely on speculation about a motive to kill the girlfriend (and a motive on the girlfriend's part to protect a man who shot at her), and did not demonstrate any tangible connection between the paramour and the crime. Consequently, this evidence was devoid of any probative value and would consume an undue amount of time while confusing the jury on the issues. Defense counsel claimed there was an equivalent lack of evidence that connected defendant with the shooting (other than the accounts of women with obvious biases) or gave a motive for it. The trial court ruled there was a lack of any evidence directly or circumstantially linking the paramour with the crime, and mere evidence of motive or opportunity was insufficient to raise a reasonable doubt of his guilt. The trial court pointed out that defendant had not explained how the paramour could have known the girlfriend would be in a car other than her own. Moreover, the Avalon victim's testimony in fact placed defendant in close proximity to the driver seen at the Empire Club with a gun. The evidence was consequently more prejudicial than probative.
The court revisited the issue before defendant testified. It concluded that the manner in which the evidence had unfolded at trial had not changed its mind that this speculative theory of third party culpability was time-consuming, confusing, and not particularly probative.
To meet the minimum standard of relevance, evidence of third party culpability raises a reasonable doubt of guilt only where there is direct or circumstantial evidence linking the third person to the actual commission of the offense; evidence merely of motive or opportunity is insufficient. Even if it is sufficient, the evidence is also subject to exclusion if it is more prejudicial than probative. (People v. McWhorter (2009) 47 Cal.4th 318, 367-368; People v. Hall (1986) 41 Cal.3d 826, 829, 833 (Hall).) The exclusion of "mere motive" (or opportunity) evidence does not violate a defendant's constitutional right to present a defense. (Hall, supra, 41 Cal.3d at pp. 833-835; see also Holmes v. South Carolina (2006) 547 U.S. 319, 326-327 [164 L.Ed.2d 503, 510-511] [noting exclusion of such evidence, if it does not sufficiently connect third party to crime, is constitutional].)
Defendant claims sufficient evidence connecting the third party with the crime is present. He argues the paramour's claim that the girlfriend was not involved with any other men, the girlfriend's misidentification of the shooter's car and the model that the paramour owned, and the girlfriend's composed response to the shooting were evidence of "consciousness of guilt." He also contends there are decisions of intermediate federal courts that find unconstitutional the exclusion of mere motive evidence.
Nothing connected the girlfriend's paramour with the actual commission of the shooting, other than a speculative murderous motive on his part and a speculative motive to protect him on the girlfriend's part (the latter based on a misidentification of similar-looking cars made in the aftermath of a traumatic moment, and the expectations of others regarding the proper response to it). These speculations are inadequate. The trial court thus properly found the offer of proof was insufficient to raise a reasonable doubt as to guilt. Whatever the merit to defendant's interpretation of the federal cases, we are not free to follow a rule contrary to the California Supreme Court's. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
II. Evidence of Criminal Threat
Defendant makes a cursory argument that the testimony of the Avalon patron did not establish the communication of an implicit threat of violence against him with the necessary unequivocal, unconditional, immediate, and specific qualities sufficient to convey a gravity of purpose and the immediate prospect of execution. (People v. Bolin (1998) 18 Cal.4th 297, 337, 340.) He further argues the testimony did not establish that the Avalon patron experienced fear beyond the point of his encounter with defendant, and thus was insufficient to establish the necessary element of sustained fear, as opposed to momentary or fleeting fear. (Ibid.; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140 (Ricky T.).)
We need not belabor the first point. Defendant had a gun pointed at the Avalon patron and manifested an unequivocal, unconditional, immediate, and specific intention to hurt anyone who did not respect him. The unfortunate frequency with which people have been killed under similar circumstances undoubtedly led the Avalon patron to credit the sincerity of defendant's remarks. This was adequate to communicate a gravity of purpose (as opposed to a feint) and the prospect of immediate execution.
As for the second point, Ricky T. is not analogous because, after feeling threatened as a result of an angry outburst from a minor, the teacher immediately asserted his authority and sent the minor to the principal. (Ricky T., supra, 87 Cal.App.4th at p. 1135.) In the present case, the Avalon patron expressly stated he found the situation to be "scary and terrifying." Defendant then departed almost immediately, which left the Avalon patron behind in "kind of" a state of "shock" and acting on the need to contact the police about the danger defendant presented. This was enough evidence for the jury to find more than a transitory or fleeting emotional response.
III. Evidence re the Restitution Award
The probation report recommended restitution in the amount of $7,500 to the "Victims of Violent Crime Program," collected pursuant to section 2085.5 (which in subd. (b) authorizes transfers from prison wages or trust accounts to the Victim Compensation and Government Claims Board for either direct payment to a victim or for reimbursement of the Restitution Fund for any payments to the victim).*fn3 It noted the family had also asked for $10,000 in direct restitution.
Before sentencing, the sister of the victim sent a letter to the prosecutor's office at the probation officer's request to substantiate the claim for $10,000 in restitution to the victim's family. It described the lengthy nature of Cambodian Buddhist funeral rites, which involved hours of mourning each day (during which guests were fed) in an initial one-week ceremony prior to cremation and followed by two two-day anniversary ceremonies: a "One Hundred Day" ceremony and a "One Year Anniversary" ceremony. The letter stated that the family had incurred unreimbursed expenses for "airline tickets, travel expenses, time off work, parking tickets, etc.," but did not provide any particulars about these expenses.
The letter also attached a chart of unspecified outlays at 13 different food and supplies stores for a total of slightly over $4,000. Below the chart was a notation that these expenses were "for an approximately 2-day ceremony reference on the type of purchases made for [the] memorial services that consisted [of] a total of (11) days--Initial Memorial Service: 7 days, 100-day Ceremony: 2 Days, and 1-Year Anniversary: 2 Days," but did not clarify whether the amount was for each two-day period over the course of the 11 days (i.e., about $22,000 in total), or was for the 11 days as a whole.
At sentencing, the trial court imposed the requested $7,500 order of reimbursement to the agency for its award to the family for funeral expenses. At defense counsel's request, the court set the issue of the family's request for direct restitution for a hearing following its imposition of sentence. Neither party submitted additional evidence or any written argument.
At the hearing, after deciding that the limit on the agency's reimbursement of funeral expenses (Gov. Code, § 13957, subd. (a)(9)(B)) did not apply to an award of restitution from a court, the court ordered direct restitution in the amount of $10,000 in addition to the $7,500 that the family had received from the agency.
Defendant argues the evidence is insufficient to award an additional $10,000 in restitution beyond the $7,500 that the family had already received from the agency because there is an absence of any details of amounts or necessity for the "airline tickets, travel expenses, time off work, parking tickets, etc.," and there is ambiguity about the manner in which the trial court was to apply the list of outlays for food and supplies to the 11 days of ceremonies. The People argue the list of costs should be interpreted as a request for $2,000 per day for a total of $22,000, so regardless of the lack of documentation of the other expenses there is sufficient evidence to support an award of $10,000 beyond the original $7,500 payment from the agency. In response, defendant asserts the claim for the other expenses is no better than asserting that there were "'a lot of expenses,'" and questions the People's interpretation because the family would not have limited its request to $10,000 if there were food and supply expenses in excess of $22,000 along with the unspecified other expenses.
We review an award of restitution for abuse of discretion; we will assume any necessary inference to support it and allow for a degree of inaccuracy in the calculations, but the award ultimately must have a rational factual basis and methodology. (People v. Giordano (2007) 42 Cal.4th 644, 665-666; People v. Chappelone (2010) 183 Cal.App.4th 1159, 1175; People v. Tabb (2009) 170 Cal.App.4th 1142, 1153.)*fn4 The amount of restitution claimed does not need to be based on any specific kind of proof; even a victim's uncorroborated statement of loss is enough to satisfy the burden of establishing a prima facie showing of the amount, at which point the burden shifts to the defendant to rebut the showing. (People v. Giordano, supra, 42 Cal.4th at p. 664; People v. Chappelone, supra, 183 Cal.App.4th at p. 1172; People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543; People v. Prosser (2007) 157 Cal.App.4th 682, 690-691.)
Defendant emphasizes that he is not contesting the factual contents of the letter, which would be forfeited on appeal in any event because he did not object in the trial court. (Cf. People v. Zito (1992) 8 Cal.App.4th 736, 742 [failure to request hearing, the defendant cannot contest showing on appeal].) In essence, defendant's claim is that the letter failed to meet the burden of establishing a prima facie showing of the other expenses because it did not include any amounts for them, and the court's extrapolation from the $4,000 or so list of outlays to $10,000 was not rational. We agree. We must vacate the award and remand for a hearing at which the victim's family can make a showing of the other expenses and provide a methodology for connecting the "approximately 2-day ceremony reference on the type of purchases made" with their total food and supply outlays for the ceremonies, to the extent both of these exceed the restitution that the family has already received.
The judgment of conviction is affirmed. The order awarding $10,000 in restitution to the family of the victim is vacated and remanded for a further hearing.
BLEASE , Acting P. J.
MURRAY , J.