IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 4, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
NOEL MAURICE MCCALL, DEFENDANT AND APPELLANT.
(Super. Ct. No. 06F10378)
The opinion of the court was delivered by: Mauro, J.
P. v. McCall
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Noel Maurice McCall was convicted of attempted murder, discharging a firearm at an inhabited dwelling, and being a convicted felon in possession of a firearm. He was sentenced to prison.
Defendant contends on appeal that (1) his conviction for attempted murder must be reversed because there is insufficient evidence of a specific intent to kill, and (2) pursuant to Penal Code section 654,*fn1 the trial court should have stayed his sentence for discharging a firearm at an inhabited dwelling.
We conclude (1) sufficient evidence supports a finding of defendant's specific intent to kill for attempted murder, because even if defendant and his cohort primarily wanted to kill Detwon and/or Anthony, the jury could reasonably have found a concurrent intent to kill Ariyanna, considering the number of bullets fired at the group of four victims who stood in close proximity to one another; and (2) the multiple victim exception applies to preclude application of section 654.
We will affirm the judgment.
On the afternoon of October 29, 2006, 18-year-old Ariyanna Bolts was visiting her friend Madiline George at Madiline's home on Cookingham Way in the Strawberry Manor neighborhood of Sacramento. Madiline's mother Charlesetta Hughes and a family friend named Crystal were also present.
Ariyanna and Madiline went out to the front yard and talked with two young men named Detwon and Anthony. As the four were out front talking, a black sports utility vehicle (SUV) drove up. The driver engaged in an argument with one or more members of the group. When the SUV drove away, Ariyanna, Madiline, Detwon and Anthony remained outside talking.
The SUV returned within an hour, carrying four or five men with guns. Defendant sat in the front passenger seat and began to fire his gun at the group, who were standing within reaching distance of each other. Ariyanna ran to the side of a parked minivan but she was shot in the buttocks and the bullet lodged in her pelvis. The SUV stopped. Defendant and at least one other man got out and continued to shoot.
Charlesetta heard six gunshots. She and Crystal got down on the living room floor. When Charlesetta looked out the front window, she saw a man walking down the sidewalk shooting a gun. Charlesetta went to the door and called out to her daughter Madiline. Madiline and Ariyanna ran into the house. The gunmen got back in the SUV and the SUV left the area.
At trial, Officer Jeffrey Griggs testified that he contacted Ariyanna in Charlesetta's living room. Ariyanna was lying on her stomach. She was screaming, crying and "kind of freaking out . . . ." Ariyanna explained to the officer that she was standing in the front yard with friends when a black truck or SUV came around the corner. When the men inside started shooting, Ariyanna said she ran and was shot.
Officer Griggs contacted Ariyanna again at the hospital just before she went into surgery. Ariyanna was "semi[-]uncooperative" and very vague with her answers. Ariyanna explained again that she was on the front sidewalk with Madiline, Anthony and Detwon when a dark-colored SUV came around the corner with four Black men inside and that when they started shooting, she tried to run into the house. When the SUV stopped, a couple of the men got out and continued to shoot. Ariyanna explained that the shooters had been "feuding" with the guys from the "Manors" and she thought the shooters were chasing Anthony and Detwon.
At trial, Ariyanna was in custody for failing to appear in court. Ariyanna did not remember a black SUV or whether Anthony or Detwon had words with people in the SUV. She denied talking to the police while at the hospital, denied giving the police a statement at any time, and denied giving a statement to any hospital workers.
Madiline told the police that the front passenger of the SUV pointed his gun at her group and began firing at them. She also stated that the shooter was pointing the gun at Anthony and Detwon, speculating that the shooter would not point the gun at Ariyanna because she was a girl. Madiline heard gunshots before she ran and hit the ground. She could not recall how many gunshots. When the first shot was fired, Madiline saw Anthony duck for cover and run while Detwon jumped over the front yard gate. Defendant got out of the SUV and continued shooting, and a second man got out as well. Madiline vaguely remembered seeing a second gun. When defendant approached her, he was about two or three steps from her. He looked at her and she heard a "click" as he slid the slide back on his weapon. She closed her eyes. Defendant then went in another direction and continued to fire his weapon. Madiline heard her mother yell for her, and Madiline ran into the house. Madiline did not hear any more gunshots.
Officers found 13 spent shell casings in the street in front of the Cookingham Way house. The casings came from two semi-automatic, magazine-fed weapons. Eight spent casings were from a .40 caliber weapon and five were from a .45 caliber weapon. There were bullet holes in the minivan's front passenger door and a passenger side window, along with damage to the back window, the windshield, and the driver's side window. Spent bullets were found in the minivan. A second car parked in the driveway was also damaged by bullets -- a spent bullet was found in the driver's side door. Two bullet holes were found in the front of the Cookingham Way house, one to the right side of the front door and the other through a window and screen to the left of the door. A bullet fragment was found behind the refrigerator in the kitchen.
A jury convicted defendant of attempted murder (§§ 187, subd. (a), 664; count one), discharging a firearm at an inhabited dwelling (§ 246; count two), and being a convicted felon in possession of a firearm (§ 12021, subd. (a)(1); count three), and found true various allegations and enhancements. The trial court sentenced defendant to the following determinate terms: the upper term of 9 years for attempted murder, a consecutive 1 year 8 months (one-third the middle term) for discharging a firearm at an inhabited dwelling, and a consecutive 8 months (one-third the middle term) for being a felon in possession of a firearm. In addition, the trial court sentenced defendant to an indeterminate term of 25 years to life with the possibility of parole for an enhancement to count one, discharging a firearm in the commission of a felony and causing great bodily injury. (§ 12022.53, subd. (d).)
Defendant contends there is no substantial evidence showing that he intended to kill Ariyanna or that he fired indiscriminately into the crowd where Ariyanna was standing. Thus, he asserts the evidence was constitutionally insufficient to support a finding of a specific intent to kill for attempted murder. We disagree.
"'In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' [Citations.] We apply an identical standard under the California Constitution. [Citation.] 'In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court "must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."' [Citation.] The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1175, italics omitted.)
"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; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) Attempted murder requires express malice; a conscious disregard for life will not suffice to support a conviction for attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 327-328.) A "person guilty of attempted murder as an aider and abettor must intend to kill." (Lee, supra, 31 Cal.4th at p. 624.) A defendant's intent to kill is rarely shown by direct evidence and may be inferred from the defendant's acts and all the circumstances. (People v. Smith (2005) 37 Cal.4th 733, 741 (Smith).)
"[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although . . . , where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive -- the very act of firing a weapon '"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.] Where attempted murder is the charged crime because the victim has survived the shooting, this principle takes on added significance. Finally, even if the shooting was not premeditated, with the shooter merely perceiving the victim as 'a momentary obstacle or annoyance,' the shooter's purposeful 'use of a lethal weapon with lethal force' against the victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill. [Citation.]" (Smith, supra, 37 Cal.4th at p. 742.)
Moreover, "[t]he mental state required for attempted murder is the intent to kill a human being, not a particular human being." (People v. Stone (2009) 46 Cal.4th 131, 134, original italics.) A person who "indiscriminately fires a single shot at a group of persons with specific intent to kill someone, but without targeting any particular individual or individuals, . . . is guilty of a single count of attempted murder. [Citation.]" (People v. Perez (2010) 50 Cal.4th 222, 225, original italics; Stone, supra, 46 Cal.4th at pp. 140-141.)
Here, defendant and another person fired multiple shots from semi-automatic weapons into a group of four people, then continued firing as the group fled. Officers found 13 shell casings at the scene. Even if defendant and his cohort primarily wanted to kill Detwon and/or Anthony, the jury could reasonably have found a concurrent intent to kill Ariyanna, considering the number of bullets fired at the group of four victims who stood in close proximity to one another. Sufficient evidence supports a finding of defendant's specific intent to kill for attempted murder.
Defendant next contends that under section 654, the trial court should have stayed his sentence for discharging a firearm at an inhabited dwelling. We disagree, because the multiple victim exception applies.
"A defendant cannot be punished multiple times for convictions that arise out of 'an indivisible transaction' and have a 'single intent and objective.' [Citation.]" (People v. Racy (2007) 148 Cal.App.4th 1327, 1336.) Here, the trial court did not expressly find that defendant had a separate intent and objective for discharging a firearm at an inhabited dwelling, and the evidence does not indicate a separate intent. But a defendant who entertains a single intent and objective may nonetheless be convicted and punished for each crime of violence committed against a different victim. (People v. Centers (1999) 73 Cal.App.4th 84, 99.) "An assailant's greater culpability for intending or risking harm to more than one person precludes application of section 654." (People v. Felix (2009) 172 Cal.App.4th 1618, 1631 (Felix).)
Defendant does not dispute that attempted murder and discharging a firearm at an inhabited dwelling are both crimes of violence. Instead, he claims the multiple victim exception does not apply because there is no evidence that he knew anyone was in the house when he fired the shots. But in convicting defendant of discharging a firearm at an inhabited dwelling, the jury necessarily found, in accordance with the jury instructions, that defendant's act of "intentionally discharg[ing] a firearm either directly at an inhabited dwelling house or in such close proximity to an inhabited dwelling house . . . show[ed] a conscious disregard for the probability that one or more bullets will strike the inhabited dwelling house or persons in or around it." "[W]here the crime of shooting at an inhabited residence is involved, a defendant need not be aware of the identity or number of people in the house to be punished separately for each victim." (Felix, supra, 172 Cal.App.4th at p. 1631.)
Defendant risked harming people who might be in the house, and he showed a conscious disregard for the probable consequences. Four people were outside and two were in the house. The gunmen discharged their firearms 13 times, hitting Ariyanna in the front yard, putting two bullet holes near the front door, and sending one bullet fragment into the kitchen. On this record, the multiple victim exception applies. (Felix, supra, 172 Cal.App.4th at pp. 1630-1631; see People v. Cruz (1995) 38 Cal.App.4th 427, 430-435; People v. Gutierrez (1992)
10 Cal.App.4th 1729, 1736-1737.) The trial court did not err in declining to stay the sentence on count two under section 654.
The judgment is affirmed.
We concur: RAYE , P. J. BUTZ , J.