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The People v. Justin Mathew Wittkop

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


September 23, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JUSTIN MATHEW WITTKOP, DEFENDANT AND APPELLANT.

(Super. Ct. No. 62-085352B)

The opinion of the court was delivered by: Nicholson , J.

P. v. Witkop

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a jury trial, defendant Justin Mathew Wittkop was convicted of several crimes, all arising from a single, after school event, including attempted first degree murder (Pen. Code, §§ 664/187),*fn1 two counts of assault with a firearm (§ 245, subd. (a)(2)), single counts of malicious discharge of a firearm from a vehicle (§ 12034, subd. (c)) and shooting at an inhabited dwelling (§ 246), with enhancements for personally inflicting great bodily injury (§ 12022.7, subd. (a)), inflicting great bodily injury as a result of discharging a firearm from a vehicle (§ 12022.55), personal use of firearms (§ 12022.5, subd. (a)), and personal discharge of a handgun (§ 12022.53, subds. (b)-(d)). The trial court sentenced defendant to 32 years to life in state prison.*fn2

On appeal, defendant contends there was insufficient evidence of premeditation and deliberation to support his attempted first degree murder conviction, and insufficient evidence to support his conviction for shooting at an inhabited dwelling because he was not shooting at anything but live victims on the street. As to the latter contention, he urges us to disagree with a line of cases stretching back 40 years. Finally, defendant claims he was entitled to an instruction on Roseville Municipal Code section 10.80.010 as a lesser included offense of shooting at an inhabited building. We affirm.

FACTS

The People's Case

On November 5, 2008, after school, Granite Bay High School students Abdulhamid Kanneh, Kasra Jebelli, and their friends Demonie and Diamond walked to McDonald's. The McDonald's is located in a shopping center at the corner of Sierra College Boulevard and Douglas Boulevard.

The boys stopped to talk to a group of friends in the parking lot between the McDonald's and a Starbucks. Seventeen-year-old Kelsey Brace drove up and honked her horn to get the group to move. Brace swore at the boys and told them to get out of the way; Demonie told her to calm down. They moved and Brace parked her car.

The boys walked to McDonald's, but were confronted by Brace, who demanded to know why Demonie did not get out of her way. According to Jebelli, Brace was swearing and wanted to beat them up; he told her to calm down and go home. Kanneh pointed out Brace had a black eye, and told her she had come from a fight.

Brace then dared them to say something else. Kanneh asked what she would do if he said something else, and Brace punched him in the face. Kanneh then put Brace in a headlock. After Jebelli and Demonie pulled them apart, Brace said she was going to get her boyfriend. Brace got into her car and drove off, while the boys went in the McDonald's.

Frank Pelfrey was getting off work at a nearby Taco Bell when he got a call from Brace at 3:42 p.m. Pelfrey knew defendant, who was Brace's boyfriend. Brace told Pelfrey she had been choked by two Black guys at the McDonald's. Pelfrey was on his way to the shopping center at the time; when he got there, Pelfrey located Brace, pulled up to the McDonald's, and entered. Brace then directed him to Kanneh and his friends.

Pelfrey confronted the boys, and asked why they hit a girl. Brace was behind Pelfrey, crying and saying, "[T]hey hurt me really bad." Brace identified Kanneh as the person who choked her. As the argument continued, the restaurant manager told them to take it outside. Pelfrey and Brace then left.

Kanneh and his friends eventually left the McDonald's for Demonie's house off Sierra College Boulevard. Kanneh and Jebelli walked side by side, about 10 to 15 feet behind Demonie and Diamond. Kanneh was on the street side of the sidewalk.

Jebelli noticed a car stop and heard a female yell out, "Hey bitch." He turned around and saw a man driving the car and Brace in the front passenger seat. The man reached in front of Brace, holding what appeared to be a gun. He started shooting, and Kanneh fell to the ground while Jebelli hid behind a tree. The car then sped off.

Kanneh saw a silver car. Brace was in the front seat; a Hispanic male drove while holding a silver revolver in his right hand. He heard three shots, but did not feel any pain. Kanneh knew he was shot because he saw blood on his clothes. He sustained gunshot wounds to the back and the left thigh.

Chris Wildrick lived in an apartment at 8800 Sierra College Boulevard. On November 5, 2008, at around 4:15 p.m., he heard what sounded like a brick hitting the side of his apartment. He went outside and saw a group of four teenagers nearby. Police found bullet holes in the composite wood siding of Wildrick's first floor apartment. There were additional bullet holes in the closet containing the water heater, where a bullet had gone through the sheetrock.

Kimberly Trotter happened upon this incident while driving on Sierra College Boulevard. She saw the car in front of her, a grey Cadillac, began to slow down. Defendant was driving the Cadillac and a woman was in the front passenger seat. There were two groups of teenagers on the street nearby, a group of six to eight, followed by a group of two Black male teenagers. As the Cadillac got near the group of two teenagers, it came to a "slow halt," the female's arm came out of the passenger window, and she pointed her hand at the two teens. The female leaned back in her seat, and the driver turned and leaned to the side toward the passenger. Trotter then heard three gunshots and saw one of the teens fall to the ground. The shots were fired about three seconds after the passenger pointed out the teens.

The Cadillac sped down Sierra College Boulevard and turned left onto Eureka Road. Trotter followed the car and reported the incident to 911 at 4:18 p.m. She followed the Cadillac until she spotted a motorcycle officer on Douglas Boulevard, to whom she told her story.

Defendant and Brace were arrested that evening at Brace's home. They tested presumptively positive for gunshot residue. Trotter was brought to the residence, and identified Brace as the passenger and defendant as the driver of the Cadillac.

An examination of the relevant cell phones discovered several text messages on the day of the shooting. At 3:13 p.m., defendant texted Brace "Dnt [sic] stay away from me." At 3:20 p.m., Brace texted back, "Things will be changing. I[']m gonna be hard to please. It[']s gonna be hard for you to earn my trust back. And your [sic] not gonna like me not trusting you. OK?" At 3:40 p.m., Brace texted to defendant, "[S]ome guy just choked me. A black nigga [sic]!" At 3:43, defendant replied: "Why u [sic] getin [sic] mad at me. U [sic] want me 2 cum [sic] get that guy." Brace texted, "Duh" at 3:43 p.m. At 3:44 p.m., defendant texted Brace, "I[']m cumin [sic]" and at 3:49 texted, "I[']m on my way."

For her role in the incident, Brace pled no contest to two counts of assault with a firearm and was sentenced to three years in prison. As part of her plea, she agreed to show detectives where defendant hid the gun and to testify truthfully at his trial.

On October 29, 2009, Brace led officers to a location in Folsom. Using a metal detector, they found a handgun wrapped in a white cloth and buried under a cedar tree. The gun, a .38-caliber Smith & Wesson revolver, contained two empty cartridges and three shell casings, which was consistent with having been fired three times.

Bullets recovered from Wildrick's apartment and Kanneh's leg, the shell casings from defendant's revolver, and the gun were tested. The bullets could have come from defendant's gun. However, extensive damage to the revolver prevented a definitive determination.

Brace testified that she and defendant were in a serious relationship, although they fought and hit each other. Brace had been suspended from school multiple times for fighting.

According to Brace, she yelled at Demonie and gave him a dirty look after he walked in front of her car. She then got out of her car and got in a verbal altercation with him. After feeling a slight shove on her shoulder, Brace turned around and fought with Kanneh, who got her in a headlock as she was trying to hit him. She left after Jebelli broke up the fight.

Brace called Pelfrey and told him about the incident. Pelfrey confronted the boys and left. She then told defendant she got into a fight with some boys, telling him one boy choked her and threatened to snap her neck. Defendant sent Brace a test message asking if she wanted him to come and "get that guy." Brace texted back, "Yes."

Defendant drove to the parking lot and picked up Brace. Brace got in the passenger seat and related the altercation, while defendant said that Pelfrey told him the boys left the McDonald's.*fn3

Defendant "took off pretty fast" and drove onto Sierra College Boulevard. He reached under the seat and took a gun which had been wrapped in a rag. Defendant slowed the car down once he saw the boys, and instructed Brace to get down or cover her head. Brace covered her face with her hands, and defendant yelled, "[W]hat's up now fools." She heard three shots and defendant drove away.

Speeding through stop signs and passing cars, defendant exclaimed, "Oh, my God. What just happened? What did I do?" According to Brace, defendant said, "I hope -- I don't think I hit them." After eluding the woman who was following them, defendant pulled the car over to a side street, parked, and buried the gun after removing the remaining bullets.

On January 30, 2010, a search of defendant's jail cell discovered a letter to be sent to Brace, who at the time was housed in another part of the jail. Defendant wrote to Brace that he wanted to talk to her about what she would say on the stand. After assuring Brace her deal would not change no matter how she testified, defendant outlined what he wanted her to testify to, including that she fired the gun and disposed of it. He wrote, "And you would be saving my life Kelsey. I[']m not gonna tell the cops anything. I'm not blaming anything on you. I aint [sic] sayin['] shit. But if you change your story for me it will save my life."

The Defense

Gina Rutherford was in prison following convictions for second degree burglary and receiving stolen property. She was Brace's cellmate at the Placer County Jail and in the receiving area of Valley State Prison. Brace told Rutherford she shot the gun and defendant had no idea she was going to shoot the boys. Brace did not call defendant and she had no idea how he located her in the parking lot. Defendant saw the boys and offered to "get out and kick their ass," but Brace declined, pulled out the gun from under the seat, and fired it.

Defendant testified he met Brace at the shopping center after she texted that she had been choked by a boy. Brace got into defendant's Cadillac, and told him "several boys beat her up," describing them as "these black guys." Driving down Sierra College Boulevard, defendant saw "some black kids," whom Brace identified as the perpetrators.

Defendant slowed the Cadillac as he approached the boys, intending to stop the car, get out, and fight them. Brace reached into the glove compartment, grabbed defendant's gun, and fired three shots. Defendant was shocked and panicked. He drove away until Brace directed him to drive down a side street where she had him park so she could put the gun in some bushes.

Defendant admitted the buried gun was his. He bought it for protection while engaging in drug deals. He claimed the letter found in his jail cell was a response to a letter from Brace.

DISCUSSION

I

Defendant claims there is insufficient evidence of premeditation and deliberation to support his convictions for first degree attempted murder and shooting at an inhabited dwelling. We disagree.

"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Jones (1990) 51 Cal.3d 294, 314.)

A.

The California Supreme Court has "identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing." (People v. Bolin, supra, 18 Cal.4th at p. 331.) The court has also explained that these factors need not present "in some special combination or . . . be accorded a particular weight, nor is the list exhaustive." (People v. Pride (1992) 3 Cal.4th 195, 247.) The factors are "simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of pre-existing reflection rather than unconsidered or rash impulse. [Citation.]" (Ibid.) In addition, we must be mindful of the fact that "premeditation can occur in a brief 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.]" (People v. Perez (1992) 2 Cal.4th 1117, 1127.)

"Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation." (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223, fn. omitted.) Thus, the fact that the charge is attempted first degree murder as opposed to first degree murder is irrelevant to the analysis of the factors to be considered by the reviewing court in finding premeditation and deliberation. (Id. at pp. 1223-1224.)

Defendant claims he arrived at the scene in a highly emotional state, having been told by his girlfriend that she had been choked. He contends there was no evidence he put the gun in the car for the purpose of shooting the boys and "[i]t was simply fortuitous that the gun was in the car during the confrontation." As neither Brace nor defendant made any comments consistent with planning, defendant claims the killing was impulsive rather than premeditated and deliberate.

Here, the totality of the evidence constitutes ample evidence from which the jury could conclude the killings occurred as the result of "pre-existing reflection rather than unconsidered or rash impulse." (People v. Hughes (2002) 27 Cal.4th 287, 371.)

The initial texts show defendant wanted to rectify problems in his relationship with Brace. Brace then texted to defendant that she had been attacked and choked in a confrontation with the boys. Defendant asked in a text message if Brace wanted him to come and "get that guy." After Brace replied yes, defendant told her he was coming, and soon met his girlfriend at the shopping center. The jury could reasonably conclude that defendant had a motive to kill Brace's assailant, both out of revenge for the attack, and to mend the relationship with his girlfriend.

Brace first texted defendant about the fight at 3:40 p.m. Trotter called 911 to report the shooting at 4:18 p.m. The nearly 40 minutes between learning about the fight and the shooting was plenty of time for defendant to cool down, negating his claim that the shooting was impulsive.

Defendant looked for the teenagers, slowing down the car and waiting for Brace to point out the perpetrator. He then halted the car and shot at the boy who choked his girlfriend. Defendant fired three shots and hit Kanneh twice, wounding him in the back and upper thigh. The manner of the shooting is consistent with premeditation. Further, "'"[t]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.]" (People v. Campos (2007) 156 Cal.App.4th 1228, 1242.)

Substantial evidence supports the jury's finding that the attempted murder was premeditated and deliberate.

B.

Defendant contends he cannot be convicted of shooting at an inhabited dwelling because he never shot at the building, intending to hit Kanneh rather than Wildrick's apartment. Not so.

Section 246 states, in pertinent part, that any person "who shall maliciously and willfully discharge a firearm at an inhabited dwelling house" is guilty of a felony. "Section 246 is a general intent crime." (People v. Watie (2002) 100 Cal.App.4th 866, 879.) It "does not require a specific intent '"to do a further act or achieve a future consequence"' beyond the proscribed act of shooting 'at' an occupied [vehicle] or other proscribed target. [Citation.] In other words, the statute does not require a specific intent to achieve a particular result (e.g., strike an inhabited or occupied target, kill or injure). [Citation.]" (People v. Government (2005) 126 Cal.App.4th 1344, 1357 (Government).) Rather, "the statute only requires a shooting under facts or circumstances that indicate a conscious disregard for the probability that one of these results will occur." (Ibid., fn. omitted.)

In People v. Chavira (1970) 3 Cal.App.3d 988, the defendant claimed he could not be convicted of a section 246 offense because he did not shoot "at" a building but "at" the persons, the same argument defendant makes here. (Id. at p. 992.) The court wrote that "[a]n act done with a reckless disregard of probable consequences is an act done with 'intent' to cause such result within the meaning of the words used in the instruction. Defendant and his associates, engaged in a fusillade of shots directed primarily at persons standing close to a dwelling. The 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." (Id. at p. 993, fn. omitted.)

Defendant asks us to disagree with Government and related cases, claiming they ignore the language of section 246, and the jury here was not instructed on conscious indifference. Neither reason justifies ignoring the unanimous line of authority to the contrary. As we have already discussed, section 246 defines a general intent crime, and that intent can be satisfied by a defendant's conscious indifference to the natural consequence of his acts.

"The defendant's conscious indifference to the probability that a shooting will achieve a particular result is inferred from the nature and circumstances of his act." (Government, supra, 126 Cal.App.4th at pp. 1356-1357.) Defendant fired three shots at Kanneh as he was walking by an apartment complex. Substantial evidence supports a finding he acted with reckless disregard to the probable consequence that at least one of the shots would hit an inhabited dwelling.

II

Defendant contends the jury should have been instructed on Roseville Municipal Code section 10.80.010 (discharging a firearm within city limits without a permit) as a lesser included offense of shooting at an inhabited dwelling (§ 246).*fn4 He is wrong.

Roseville Municipal Code section 10.80.010 provides in pertinent part: "It is unlawful for any person in the city to discharge any firearm of any kind, character, or description without a permit issued by the chief of police, or to discharge any pistol, airgun, slingshot, or any instrument of any kind, character, or description, which throws or discharges bullets or projectiles of any kind to any distances greater than 20 feet. . . ."

"Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 117, fn. omitted.)

The Roseville ordinance is not a lesser included offense in the abstract since an element of this offense, that the shooting take place in Roseville, is absent from section 246. Defendant notes the information alleged the violation of section 246 took place "at 8880 Sierra College Blvd." Since trial testimony establishes this address is in Roseville, defendant contends the Roseville ordinance is a lesser included offense under the facts alleged in the pleading, which effectively allege the crime took place within city limits.

Even if we assume the ordinance defines a lesser included offense of section 246 as charged (see People v. Moore (1983) 143 Cal.App.3d 1059, 1066-1067 [municipal ordinance not lesser included offense of section 246 since charge did not allege the shooting took place in city limits]), not instructing on the ordinance was harmless.

If the trial court does not instruct a jury on a lesser included offense in a non-capital case, reversal is not warranted unless "an examination of the entire record establishes a reasonable probability the error affected the outcome. [Citations.]" (People v. Joiner (2000) 84 Cal.App.4th 946, 972.)

The jury was instructed on section 246.3, discharging a firearm in a grossly negligent manner, as a lesser included offense of section 246. A violation of section 246.3 consists of three elements: "(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." (People v. Alonzo (1993) 13 Cal.App.4th 535, 538.)

"The only difference between sections 246 and 246.3 is that section 246 requires that a specific target (e.g., an inhabited dwelling or an occupied building) be in the defendant's firing range. Section 246.3 does not include this requirement. Both crimes, however, involve the intentional discharge of a firearm in a grossly negligent manner which presents a significant risk that personal injury or death will result." (Government, supra, 126 Cal.App.4th at p. 1362.)

The verdict establishes the jury rejected the contention that the apartment was not in defendant's firing range. Since there is overwhelming evidence defendant attacked with reckless indifference to hitting the apartment, it is not reasonably probable the result would have changed had the jury been instructed on the Roseville ordinance.

DISPOSITION

The judgment is affirmed.

We concur: RAYE , P. J. HULL , J.


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