IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MINH DANG, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F00092)
The opinion of the court was delivered by: Nicholson , J.
P. v. Dang
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Minh Dang of attempted murder (declining to find that it was premeditated), and sustained firearm allegations. It also convicted him of assault with a semiautomatic gun, and sustained allegations that he used a gun and personally inflicted great bodily injury that resulted in paralysis of a permanent nature. The trial court sentenced defendant to prison.*fn1
On appeal, defendant argues there is insufficient evidence of his intent to kill to support the jury's verdict of attempted murder, or of the permanent nature of the victim's paralysis to support the enhancement finding. He also contends the court applied the wrong standard in its consideration of his motion for appointment of counsel to prepare a motion for new trial based on ineffective assistance of retained trial counsel. Finally, he maintains the trial court misspoke in sentencing him to a stayed term of seven years for the infliction of permanent paralysis. We affirm the judgment as modified.
We limit our factual account to the evidence pertinent to defendant's claims. (As he does not contest the sufficiency of the evidence identifying him as the shooter, we omit it.)
The victim was one of a group of friends walking home from the grocery store late at night after buying snacks. As they walked toward a house on Stone Cliff Way, there was a group of people in the street in front of it who had been attending a party in the house. The victim's group attempted to pass by unobtrusively. However, someone in the other group challenged them to fight (his brother having recently been the victim of a beating at the hands of a member of the racial group of the victim and his friends). This confused the victim and his friends, because they did not know any of these people.
People came out of the garage. One of them was defendant, who removed his jacket and pulled a gun out of his pants when he reached the end of the driveway. Defendant walked toward the victim's group, told them that they did not want any problems, and began firing the gun into the air. The victim's group was about two houses away. As the victim's group began to run away, defendant pointed the gun in their direction and said they needed to get out of there because he was not playing. He fired the gun at the group. The victim was shot twice in the head. He fell to the ground about five or six houses away from where defendant was shooting.
A friend of defendant testified he heard five or six shots behind him. When he turned, defendant was standing there with a gun.
Investigators retrieved casings from defendant's driveway and a spent slug from the front of a house down the street. This was consistent with defendant standing in the driveway and firing at the victim down the street.
Since the shooting, the victim was not able to walk without assistance. He needed a cane on the left and someone's support on the right to walk, according to his mother's testimony. The right side of his body was paralyzed after the shooting. The victim was unable to raise his right hand to be sworn. He was unable to dress himself without assistance. Although she believed he remembered the incident, he had trouble verbalizing because he could speak only in broken sentences. The court noted at sentencing that even without medical testimony it was obvious from looking at the victim that he suffered from an indefinite paralysis.
Asserting intent to kill cannot be inferred from only the fact of a firearm assault (citing People v. Belton (1980) 105 Cal.App.3d 376, 380-381 [intent to kill cannot be inferred only from the fact that defendant committed arson] [Belton]), defendant claims the evidence is insufficient to establish this essential element of attempted murder (People v. Ervine (2009) 47 Cal.4th 745, 785). He points to the absence of any previous connection between defendant and the victim's group, or any circumstance in his encounter with the victim's group that would give rise to an intent to kill. He claims his actions otherwise are not consistent with an intent to kill because he fired first into the air and then waited until the group was farther away before shooting at them. He also relies on his directive to the group to leave as evidence that this was his only goal.
Although the People do not discuss Belton, we question the degree to which it states the proposition in dictum that an intent to kill never can be inferred from the act alone of assault with a deadly weapon. The cases on which Belton relied for this dictum all involved instructional error allowing a jury to presume intent to kill merely from the evidence of an assault with a weapon (People v. Snyder (1940) 15 Cal.2d 706; People v. Miller (1935) 2 Cal.2d 527; People v. Maciel (1925) 71 Cal.App. 213). These cases are inapposite to the inquiry of whether it is reasonable to infer an intent to kill from pointing a gun at someone and firing it. Indeed, People v. Smith (2005) 37 Cal.4th 733, 741-742, has held that the act of firing a weapon in a manner that could have caused death "is sufficient to support an inference of intent to kill" whether or not there is evidence of any motive.*fn2
The facts of the present case give rise to conflicting reasonable inferences of an intent to kill or an intent to frighten, and we must defer to the jury's resolution of the conflict. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, 375, p. 434.) The inference is substantial evidence to support the jury's verdict. (Id. at § 369(5), p. 427.) We therefore reject this argument.
Defendant contends that without expert medical testimony about the victim's prognosis, the evidence is insufficient to support the enhancement finding that he inflicted permanent paralysis within the common understanding of that term (neither he nor the People provide authority that gives any other interpretation to it), because the jury's finding is therefore mere speculation that the victim will never improve.
We disagree with defendant. The severe extent of the victim's disabling paralysis that was still present more than a year after the shooting provides a basis for a rational inference that his condition was not going to change. Absent medical evidence to the contrary, this was sufficient to support the finding.
At the time set for sentencing, the court stated for the record that defense counsel (Stewart Katz), who was defendant's retained counsel, had informed the court that defendant wished to make a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (which governs requests to substitute appointed counsel) (Marsden). Mr. Katz responded, "I don't believe it's technically a Marsden motion. [Defendant] would like to request counsel be appointed for the purpose of a new trial motion in that he believes there may be some basis for believing that ineffective assistance of counsel is significantly a part of the result." The court stated that "the rule of People versus Brown"*fn3 required it to treat the request "in effect as a Marsden motion. In other words, I'm not going to appoint another attorney unless there is cause under the rule of the Marsden case." (Italics added.) The court then held a hearing in camera.
At the hearing, the court first confirmed that defendant was making a request for "another attorney to represent [him] so that [the attorney] can make a motion for a new trial" on the ground of ineffective assistance of counsel. The court then asked defendant to elaborate his grounds. He described dissatisfaction with being unable to testify that he saw someone else with a gun, the failure to contact witnesses who could corroborate that, and a failure to investigate video recordings of his flight through a shopping plaza behind his house after the shooting. Mr. Katz responded that he strongly counseled defendant against testifying but made it clear it was defendant's call. He had assumed that any videotape in the shopping plaza would have been destroyed long before he could have obtained it, but conceded this might have been a poor assumption. Such evidence would have exculpated defendant in light of testimony that the victim's group saw the shooter leave in a car. As for the additional witnesses, two had moved out of state and good faith efforts to contact the others did not have success. He conceded that he might have made further efforts. On his own, Mr. Katz criticized his failure to argue for attempted manslaughter because he had feared conceding that defendant was the shooter.
The court asked defendant whether he could afford a new attorney for the motion for new trial. Defendant claimed he had run out of funds. Mr. Katz said he had not been paid his entire fee.
The court concluded Mr. Katz had not been deficient in any material way that defendant identified (and considered the decision not to argue attempted manslaughter to be a reasonable tactic), except for the failure to determine the existence of a videotape. The court therefore appointed an investigator to contact the shopping plaza. Mr. Katz agreed to delay his own preparation (with defendant's assent) of any motion for new trial until the issue was resolved.
The investigator filed sealed reports. He determined any surveillance camera that might have recorded defendant's flight would not have had videotapes available more than 30 to 60 days after the shootings.
At the continued hearing in camera on what the trial court continued to call a Marsden hearing, it found Mr. Katz's failure to check on the availability of the videotapes did not result in any prejudice to defendant. Defendant then raised the issue of the failure to call a neighbor who had told an investigator she had not seen defendant in connection with the shooting, and a neighbor who had heard gunshots from somewhere other than defendant's driveway. Mr. Katz explained the first neighbor had moved shortly after speaking to detectives, and he was unable to find her. He did not think the auditory evidence from the other neighbor was significant. The court found counsel's conduct to be reasonable, ruling, "I therefore deny the motion for appointment of [a] new attorney, that is, I deny the Marsden motion." Before sentencing, the court heard and denied Mr. Katz's motion for new trial.
Defendant correctly notes he would have been entitled to fire his retained counsel without demonstrating inadequate representation or an irreconcilable conflict under Marsden as long as this did not disrupt the orderly administration of justice or result in prejudice to him. (People v. Ortiz (1990) 51 Cal.3d 975, 984, 987; People v. Munoz (2006) 138 Cal.App.4th 860, 866.) He characterizes the above proceedings as an attempt to fire his retained attorney, to which the court incorrectly applied Marsden principles. He contends this error is reversible per se (though we note this would not require reversal of his convictions (People v. Munoz, supra, 138 Cal.App.4th at p. 871)).
Had defendant been seeking to replace defense counsel for all purposes, he would be correct. However, his request was limited to appointment of counsel (given his claimed indigency) to determine whether to bring a motion for new trial based on Mr. Katz's ineffectiveness. Although he contends Mr. Katz and the trial court improperly limited his request to this purpose, the record is devoid of any evidence that this was contrary to defendant's desires, rather than accurately reflecting them. A desire for substitution of counsel for all subsequent purposes must be explicit. (Cf. People v. Dickey (2005) 35 Cal.4th 884, 918-920 & fn. 12; People v. Richardson (2009) 171 Cal.App.4th 479, 485.) In this context of a request for an attorney to explore retained counsel's possible ineffectiveness for purposes of a motion for new trial, the trial court properly required a showing of the claimed inadequacies before granting defendant's request. (People v. Bolin (1998) 18 Cal.4th 297, 346; People v. Smith (1993) 6 Cal.4th 684, 696.)
In imposing sentence on the stayed paralysis enhancement, the court stated the term was seven years. The term prescribed in the statute, however, is five years. (Pen. Code, § 12022.7, subd. (b).) The minute order reflects the proper sentence. The abstract of judgment notes only that the enhancement was stayed.
Defendant requests we correct the unauthorized sentence. The People assert that we do not have anything to correct because the minutes are correct and the abstract does not include the verbal misstep.
The judgment is in fact the oral rendition of sentence (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471), so therefore the judgment includes an unauthorized sentence.
The judgment is modified to reflect the sentence on the stayed enhancement for inflicting paralysis is five years. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting the correct number of conduct credits and forward it to the Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. HOCH , J.