(Super. Ct. No. F0900854)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 William Robert McConnell was convicted by jury of second degree murder (Pen. Code, § 187)*fn1 and found to have personally used a handgun during the commission of the offense (§ 12022.53, subd. (b)). He was sentenced to an indeterminate term of 40 years to life in state prison (15 years to life for the murder, plus 25 years to life for personally discharging a firearm resulting in great bodily injury or death [§ 12022.53, subd. (d)]).
On appeal, defendant contends: (1) the sentence enhancement must be stricken because the jury did not find that defendant personally discharged a firearm resulting in great bodily injury or death; (2) the trial court violated defendant's constitutional rights by admitting his statements to police into evidence because neither his waiver of the right to remain silent nor his subsequent statements were voluntarily given; (3) defendant's constitutional rights were further violated when the trial court declined to give certain requested jury instructions; (4) the prosecutor engaged in prejudicial misconduct by reading from a California Supreme Court opinion during his closing argument; and (5) the trial court improperly allowed transcripts of defendant's recorded statements to police into the jury deliberation room without also providing the jury with a means of playing the recordings.
As we shall explain, we agree defendant's sentence must be modified to strike the enhancement for personal discharge of a firearm resulting in great bodily injury or death because there was no jury verdict form finding that defendant discharged a firearm causing great bodily injury or death. However, because the jury found that defendant personally used a handgun during the commission of the offense, a mandatory firearm use enhancement shall be imposed and executed in its place.
We disagree with the remainder of defendant's contentions. We conclude that defendant was competent to waive his right to remain silent and that his statements made during police interrogations were voluntarily given. Thus, the trial court did not violate defendant's constitutional rights by admitting his statements into evidence. With regard to defendant's claim of instructional error, we find no instructional error. Defendant's requested jury instructions were properly rejected by the trial court as confusing, duplicative or argumentative. Next, we find no prejudicial prosecutorial misconduct because the quote read by the prosecutor was an accurate statement of the law that came from a majority opinion of our Supreme Court. Finally, there was no error in allowing the transcripts of defendant's recorded statements to police into the jury deliberation room. For these reasons, we affirm the modified judgment.
In August 2009, defendant lived in a rural portion of Plumas County known as Dixie Valley. Several miles of unpaved road separated his house from the nearest town. A sheepherder named Eduardo Campos-Perez also lived in Dixie Valley. He was a Mexican immigrant who spoke very little English. Campos-Perez used an ATV and several dogs to herd the sheep. He lived in a trailer about a mile from defendant's house.
On the evening of August 6, 2009, Campos-Perez arrived at defendant's house unannounced. Defendant had consumed several beers during the course of the day and was watching a movie when the unexpected visitor arrived on his ATV. While the men did not share a common language, Campos-Perez managed to convey to defendant that his ATV was having mechanical problems. He also offered defendant some vodka. Defendant invited Campos-Perez onto his porch and retrieved two glasses from the house. After taking a couple shots of vodka, defendant examined the ATV, discovered the gear shifter had come loose, and determined he did not have the proper tools to fix the vehicle.
Defendant and Campos-Perez returned to the porch to drink some more vodka. Their conversation began amicably enough, although they struggled to understand each other. Several drinks later, the men began to fight. According to defendant's account of events, he told Campos-Perez to keep his dogs away from defendant's house because the previous year one of these dogs impregnated defendant's Rottweiler. Without warning, Campos-Perez hit defendant in the face, knocking him to the floor. He then hit defendant two or three more times. When defendant's Rottweiler stepped in to protect defendant, Campos-Perez started yelling in Spanish and kicked the dog. Defendant grabbed Campos-Perez, pushed him off of the porch, and then helped the man to his feet, explaining that he "felt bad" and did not understand why Campos-Perez suddenly became upset. Campos-Perez continued yelling in Spanish and resumed kicking the dog.
Defendant ran into the house and retrieved a .45 caliber semi-automatic handgun for protection. According to defendant, while he was in the house, Campos-Perez tried to steal his truck. Defendant ran outside with the handgun and "must have" fired two rounds at the vehicle, which ended up stuck in a ditch across the road from the house. One of the rounds struck and flattened the left rear tire. The other round struck the left side of the truck bed, penetrated into the bed, and lodged in the spare tire.
Defendant ran back into the house and exchanged the .45 caliber handgun for a Marlin 30-30 lever action rifle. According to defendant, as he approached the truck with the rifle, Campos-Perez emerged from the driver's side of the vehicle and "came at [him]." Defendant pulled the trigger, but the rifle did not fire. Defendant "about had a heart attack," quickly chambered another round, and shot Campos-Perez in the chest. Campos-Perez immediately collapsed to the ground. Defendant, "totally in shock at this point," stood motionless for a couple minutes. Convinced that Campos-Perez was dead, defendant opened the driver's side door and turned off the vehicle. He then tried to call 911, but neither of his cell phones worked.
The next morning, defendant walked to a neighbor's house, borrowed an ATV, and drove to Martin Meyer's house about a mile away. Meyer was one of defendant's close friends. He was also the man who sold defendant the .45 caliber handgun defendant used to shoot the truck the night before. When defendant arrived, he told Meyer that "he got in a fight, an argument, with the sheepherder and that he had killed him." Defendant asked Meyer to call his mother and the co-owner of defendant's house. Defendant also told Meyer to come over to his house to pick up the handgun if he wanted it back since defendant would probably be going to jail and the gun would be confiscated. After retrieving the gun and a phone card from defendant's house, Meyer drove to the town of Chilcoot, called the Sheriff's Department, and made the other requested phone calls.
Deputy John Fatheree and Detective Michael Smith arrived a short time later and followed Meyer back to defendant's house. When they arrived, defendant's truck was still in the ditch and Campos-Perez's body was still lying on the ground near the truck. Defendant was standing on the porch with his hands in the air. The Marlin 30-30 rifle defendant used to kill Campos-Perez was lying on a table on the porch along with a .22/.410 rifle/shotgun combo and two air rifles.
Detective Smith questioned defendant on the porch. Later in the afternoon, Sergeant Steven Peay arrived and also questioned defendant. Defendant's account of events was essentially that described above, except that defendant omitted all mention of the .45 caliber handgun. Defendant was arrested later in the evening, transported to the Plumas County Jail, and questioned again at the Sheriff's Department shortly after midnight. During this interview, defendant acknowledged the role the .45 caliber handgun played in the events of the previous night, but maintained that Campos-Perez attacked him on the porch, attempted to steal his truck, and ran toward him immediately before the fatal shot was fired.
Certain aspects of defendant's account are not supported by the physical evidence. For instance, while defendant claimed Campos-Perez attacked him on the porch and hit him several times, neither Detective Smith nor Deputy Fatheree witnessed any injuries on defendant consistent with such an assault. While defendant claimed his dog stepped in to defend him, prompting Campos-Perez to kick the animal several times, the dog did not appear to be injured. Nor were there any bite marks on Campos-Perez's body. And while defendant claimed Campos-Perez ran toward him prior to being shot, the position of his body and the footprints at the crime scene indicated that Campos-Perez was running, not toward defendant, but in a perpendicular direction away from the truck when the fatal shot was fired. Moreover, the bullet entered Campos-Perez's upper left arm, severed the humerus, exited the arm through the armpit, and then entered the chest cavity, penetrated the heart, both lungs and liver, passed through a rib, and lodged in the soft tissue on the right side of his body. This path is inconsistent with defendant's claim that Campos-Perez ran toward him and that defendant fired at the center of his chest.
Defendant contends the sentence imposed for the firearm enhancement must be stricken because the jury did not find that he personally discharged a firearm resulting in great bodily injury or death. We agree.
Section 12022.53 establishes three sentence enhancements for the personal use or discharge of a firearm in the commission of certain enumerated felonies. Subdivision (a) specifies the felonies to which the statute applies. (§ 12022.53, subd. (a).) Subdivision (b) provides a 10-year enhancement for the personal use of a firearm. (§ 12022.53, subd. (b).) Subdivision (c) provides a 20-year enhancement for the personal and intentional discharge of a firearm. (§ 12022.53, subd. (c).) Subdivision (d) provides a 25-years-to-life enhancement for the personal and intentional discharge of a firearm proximately causing great bodily injury or death to someone other than an accomplice. (§ 12022.53, subd. (d).)
"Section 12022.53 thus recognizes different degrees of culpability, and imposes 'three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies.' [Citation.]" (People v. Grandy (2006) 144 Cal.App.4th 33, 42; People v. Palacios (2007) 41 Cal.4th 720, 725, fn. 3 ["statutory scheme distinguishes among different levels of involvement of a firearm in the commission of a crime"].) For example, a defendant may be found to have personally used a firearm within the meaning of section 12022.53, subdivision (b), where he carried the weapon "by his side, deliberately within [the victim's] view," and "[t]he display of the firearm, along with [the] defendant's menacing tone of voice, served to intimidate [the victim] into giving up possession of her phone." (People v. Bryant (2011) 191 Cal.App.4th 1457, 1472.)
In order to qualify for the discharge enhancement of section 12022.53, subdivision (c), the defendant must fire the weapon. While the firearm is not required to project a bullet in order for this enhancement to apply, the weapon must "'give outlet or vent to'" an explosion within the firing chamber. (People v. Grandy, supra, 144 Cal.App.4th at pp. 42-44 [the defendant discharged a firearm even though the gun misfired and did not emit a bullet].) And in order for the enhancement of section 12022.53, subdivision (d), to apply, the defendant's discharge of the firearm must proximately cause great bodily injury or death to someone other than an accomplice. This enhancement applies regardless of whether the great bodily injury or death was caused by a bullet or instead by an evasive maneuver of the victim. (See People v. Palmer (2005) 133 Cal.App.4th 1141, 1152; People v. Zarazua (2008) 162 Cal.App.4th 1348, 1361-1362.)
Defendant was convicted of murder, a felony enumerated in section 12022.53. (§ 12022.53, subd. (a)(1).) The initial information alleged that defendant "personally used and discharged a firearm, to wit: A .45 CALIBER HANDGUN and A MARLIN 30/30 RIFLE, which proximately caused great bodily injury and death to EDUARDO CAMPOS, within the meaning of . . . §§ 12022.5(a)*fn2 and 12022.53(b)-(d)." The first amended information alleged that defendant "personally used and discharged a firearm, to wit: A MARLIN 30/30 RIFLE, which proximately caused great bodily injury and death to EDUARDO FIDEL CAMPOS PEREZ, within the meaning of . . . §§ 12022.5(a) and 12022.53(b)-(d)." The jury found that, in the commission of the murder, defendant "did personally use a firearm, to wit: a handgun." (Italics added.) The record does not contain any verdict form finding that defendant discharged a firearm causing great bodily injury or death.
In People v. Najera (1972) 8 Cal.3d 504 (Najera)*fn3 , the defendant was convicted by jury of first degree robbery and found to have been armed with a firearm during the commission of the offense. (Id. at p. 506.) Despite the fact that the jury was not asked to find whether the defendant used a firearm in the commission of the robbery, the People argued his sentence could be enhanced under section 12022.5. (Id. at p. 508.) Rejecting this argument, our Supreme Court explained that "one who is 'armed' with a firearm does not thereby necessarily 'use' it, although the word 'use' does not require an actual discharge of the weapon." (Id. at p. 510, fn. 5.) The court further explained that section 12022.5 "requires a jury determination of the factual question whether or not defendant used a firearm in the commission of the underlying offense, unless defendant has waived a jury trial or has pleaded guilty. As defendant in the instant case did not waive a jury trial nor plead guilty, he was entitled to a jury determination of the matter, preceded ...