(Super. Ct. No. 08F06292)
The opinion of the court was delivered by: Hull , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Matthew Jones and Joshua Nickerson were convicted by a jury of attempted murder (Pen. Code, §§ 664/187; unspecified section references that follow are to this code) and two counts each of dissuading a witness (§ 136.1). The jury also found each offense had been committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)), and a principal discharged a firearm and caused great bodily injury in connection with the attempted murder (§ 12022.53, subds. (d) & (e)).
Defendants appeal, contending the evidence is insufficient to support the attempted murder conviction, the firearm enhancement, and the gang enhancement. They also contend the trial court improperly instructed the jury on the firearm enhancement and the prosecutor committed misconduct during closing arguments. We find no prejudicial error and affirm the judgments. However, we find an error in Nickerson's abstract of judgment and order that it be corrected.
The attempted murder occurred on July 25, 2008, at an apartment complex in the northern part of Sacramento, an area "infested with Crips" that had become "hot" for gang-related crimes. At the time, defendants were living in the apartment complex and were members of the Crips gang.
Also living in the apartment complex at the time was Alisha S. Alisha, her sister, Ieisha S., their children, and Alisha's boyfriend, Mauryea A. shared an apartment. Alisha was friends with defendants.
On the night of July 25, 2008, Alisha, Mauryea, and two of Alisha's friends, Felicia T. and Melissa B., were at Alisha's apartment. A little before 10:00 p.m., they heard a knock at the door and Alisha answered it. Outside were defendants and a third individual, Cassell Meadors, who was also a Crips member. Defendants entered the apartment, but Meadors remained outside. Nickerson walked into the kitchen and Jones stayed in the living room area with Mauryea.
While conversing with Jones, Mauryea said something about "cuz" or "blood," and that upset Jones. An argument ensued between them. Alisha later reported to police that Mauryea said something like, "Blood, can you get out of my girlfriend's house? She gets an attitude every time you come over here, and she takes that out on everybody when you come over here." According to the prosecution's gang expert, calling a Crip gang member a Blood is considered a challenge. Mauryea reported to police that defendants had been talking about "guns and things" and he thought this was disrespectful to the house. He told them so and that he wanted them to leave.
Meadors entered the apartment, got in Mauryea's face and started yelling at him. Meadors said, "Don't talk to my motherfucking brother like that." Alisha yelled to them from the kitchen to take their argument outside. Nickerson emerged from the kitchen and the four men walked outside the apartment. Alisha closed and locked the door behind them.
When Mauryea walked outside, he found the other three standing in a semi-circle facing him. Defendants were "posturing like they [had] guns." They continued to argue with Mauryea. At one point, Alisha stepped outside and tried to get Mauryea to come back inside, but he refused. Meadors told Mauryea he was going to shoot him and was making hand signs. Although Mauryea was not being aggressive toward the other three, he also refused to be intimidated by them. Mauryea heard someone say that they were the "Trigga Mob." Meadors said to Mauryea he would "bust [him] out right now" and would "shoot this whole house up." Meadors also brandished a handgun. When he saw the gun, Mauryea asked, "Are you going to shoot me?"
At some point during all of this, Mauryea apologized and offered to shake hands with Jones and "squash it." Jones responded that, "We're cool," but he refused to shake Mauryea's hand.
Mauryea eventually walked past the other three and, when he turned back toward them, found Jones "dead in [his] face." Mauryea saw that Jones held one hand behind the back of his leg. Jones made an overhand motion with that arm and struck Mauryea in the eye with what Mauryea believed to be the butt of a gun. Mauryea immediately lost sight in that eye.
Mauryea grabbed Jones and the two wrestled around. Mauryea got Jones in a headlock. Nickerson and Meadors shouted encouragement to Jones and assisted him by hitting Mauryea in the back and the back of the head. As they wrestled, Mauryea could see a gun being handed off from one to another of the assailants. Mauryea then heard a shot and felt a burn on his shoulder.
Mauryea immediately released his hold on Jones and fell down on "all fours." He heard Nickerson say something to him like, "I told you," and then saw the three walk away together. He also saw one of them pass a gun to Nickerson.
Mauryea struggled to his feet and returned to the apartment, where he told the others he had been shot.
Mauryea was taken to the hospital and examined. He had injuries to his eye, the back of his head, and his shoulder. There were multiple fractures to the orbit around his eye and he suffered vision loss due to damage to the optic nerve. There were scratch marks on his shoulder and two penetrating wounds consistent with gunshots. X-rays also revealed metallic fragments near the shoulder blade, which were not removed by medical personnel.
Defendants and Meadors were later arrested. On August 6, 2008, Ieisha received a call on her cell phone while she was walking her daughter to school. The caller identified himself as John John, but she recognized the voice as that of Jones. Jones said, "My boy's in jail. You guys got him in trouble. Come outside." He also said, "[H]i bitch. Nigga, my homeboy's in jail and you guys are snitches." He also said, "I'm gonna shoot your fucking house. I'm in front your [sic] apartment. Come out now." Ieisha immediately reported this to the police.
That same day, Alisha called the police and reported she had received a threatening call from Nickerson on August 4. Alisha reported that Nickerson said to her, "You're going to get it. I'm 29th Street, Cuz. You're gonna get it. You better watch your backs." Alisha also heard from "this dude named Sean" that "the word on the street was that these guys, if [she] snitched, were going to kidnap and torture [her] kids." Alisha also heard on the street that defendants thought she had been identifying them as the perpetrators. She told police in a later interview that she was told if she snitched something would happen to her children and "they" were going to shoot up her house. Alisha later visited Nickerson in jail to tell him she was not snitching on him.
Defendants and Meadors were charged with attempted murder (§§ 664/187), with an enhancement for discharging a firearm and causing great bodily injury (§ 12022.53, subds. (d) & (e)). Defendants were also charged with attempting to dissuade by use of force or threat of force (§ 136.1, subds. (a)(2) & (c)(1)), a victim or witness from testifying and attempting to dissuade by use of force or threat of force (§ 136.1, subds. (b)(2) & (c)(1)), a victim or witness from causing a complaint, indictment, information, or probation or parole violation to be sought and prosecuted, or assisting in the prosecution thereof. As to each of these offenses, the three were also charged with gang enhancements. (§ 186.22, subd. (b)(1).) Jones was further charged with making a criminal threat (§ 422), but that charge was later dismissed by the prosecution.
Defendants and Meadors were tried together, with a separate jury for Meadors. Meadors was convicted as charged, and his conviction was later affirmed by this court. (People v. Meadors (Jun. 20, 2011, C063060) [nonpub. opn.].) Defendants were convicted as charged and all enhancements were found true. On the attempted murder charge, Jones received a determinate middle term of seven years plus an enhancement of 25 years to life for the firearm enhancement. He also received a consecutive term of life with a minimum parole eligibility of seven years on one dissuading charge, and sentence on the other dissuading charge and the gang enhancement was stayed pursuant to section 654. Nickerson received a similar sentence, but with the lower term of five years on the attempted murder and the life term on the dissuading charge to run concurrently. He also received a concurrent middle term of two years on an unrelated drug charge.
I Sufficiency of Evidence--Attempted Murder
Defendants contend their convictions for attempted murder must be reversed, because there is insufficient evidence they intended to kill Mauryea, a necessary element of attempted murder (see People v. Bland (2002) 28 Cal.4th 313, 327-328). Defendants point out that, after Mauryea was shot in the shoulder and went down on all fours, they immediately walked away rather than finishing the job. They argue: "If they had an intent to kill [Mauryea], further shots would have been fired to effectuate his death . . . ." Defendants further argue that, because they walked away as soon as Mauryea released his headlock on Jones, their obvious intent was simply to break up the fight between them.
In reviewing the sufficiency of the evidence supporting a conviction, we view the evidence in the light most favorable to the prosecution and determine if a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) Reversal on the basis of insufficient evidence is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "'The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.'" (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting from People v. Reilly (1970) 3 Cal.3d 421, 425.)
In People v. Lashley (1991) 1 Cal.App.4th 938 (Lashley), the defendant, while standing on a second-story balcony, yelled obscenities and racial epithets at a group of blacks who were fishing nearby. The defendant departed and later returned with a .22-caliber rifle, which he aimed at the group. As the blacks attempted to move out of range, the defendant discharged the firearm, hitting one of them in the arm and piercing his lung. (Id. at pp. 942-943.) The defendant was convicted of attempted murder and appealed, arguing there was insufficient evidence of intent to kill. (Id. at pp. 944-945.)
The Court of Appeal affirmed. Like defendants here, the defendant in Lashley argued that, if he had intended to kill the victim, "he would have fired more than one shot at his target or taken some other action to insure the accuracy of his aim." (Lashley, supra, 1 Cal.App.4th at p. 945.) The Court of Appeal rejected his argument, explaining: "The only possible reason for reaching a different result here rests on the untenable theory that an unsuccessful killing constitutes conclusive evidence of lack of intent. There is nothing inherently illogical or absurd in a finding that a person who unsuccessfully attempted to kill another did so with the intent to kill. The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter's poor marksmanship necessarily establish a less culpable state of mind." (Id. at p. 945.)
Defendants contend Lashley is readily distinguishable from the instant matter. They argue "Lashley stands for the unremarkable proposition that if you shout racist threats and insults at someone and then shoot them in the lung, a jury could reasonably conclude that you had an intent to kill."
Defendants' attempt to restrict Lashley to its specific facts is unavailing. There is nothing in that case to suggest the fact the defendant first racially taunted the victim and his friends and then shot the victim in the lung was determinative. In upholding the conviction, the court noted: "The very act of firing a .22-caliber rifle toward the victim at a range and 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 under the circumstances presented here." (Lashley, supra, 1 Cal.App.4th at p. 945.) In other words, substantial evidence to support the conviction came from the fact the defendant shot directly at the victim at a range and in a manner that could have killed him had the shooter's aim been better. Because there is seldom direct evidence of intent, it is often necessary to resort to the circumstances of the shooting to infer intent.
Defendants argue the facts here are distinguishable from Lashley in that here, it was Mauryea who called the others outside, the initial fighting was hand-to-hand between Jones and Mauryea, the shot was fired only when Mauryea got Jones in a headlock, and as soon as the shot was fired and Mauryea let go, they departed. However, the fact defendants did not finish the job does not distinguish this matter from Lashley. Likewise, in Lashley, there was evidence the victim had gotten the upper hand on the defendant's friend by pulling a knife on him and the defendant retaliated with the rifle. Finally, defendants rely on a one-sided version of the events the night of the shooting. While there was evidence Mauryea called the others outside and the fight began between Jones and Mauryea alone, there is also evidence the others were grouped together facing Mauryea before the fight began, Jones hit and severely injured Mauryea's eye with a handgun, and then a brawl ensued in which all three were hitting Mauryea repeatedly until the shot rang out.
Defendants further argue the absence of intent to kill is demonstrated by the fact "Meadors aimed carefully so as not to shoot [Jones] and wounded [Mauryea] in the shoulder." However, while it might reasonably be inferred Meadors tried not to shoot Jones, there is no evidence he intended only to wound Mauryea. The evidence showed that, during a scuffle in which things were happening fast and the parties were moving around, Meadors took a shot in the direction of Mauryea's back from close range. On this evidence alone, a reasonable jury could conclude Meadors intended to kill Mauryea with that shot. As in Lashley, this intent is not ameliorated by the fact defendants immediately ceased their attack. Substantial evidence supports defendants' attempted murder convictions.
II Sufficiency of the Evidence--Firearm Enhancement
Section 12022.53 provides for an enhancement in the event a designated offense, including attempted murder (§ 12022.53, subd. (a)(1) & (a)(18)), is committed with the use of a firearm. If the defendant personally used a firearm in the commission of the offense, the enhancement is 10 years. (§ 12022.53, subd. (b).) If the defendant personally and intentionally discharged the firearm, the enhancement is 20 years. (§ 12022.53, subd. (c).) If the defendant personally and intentionally discharged the firearm and caused great bodily injury, the enhancement is an indeterminate term of 25 years to life. (§ 12022.53, subd. (d).) Finally, if the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b), any principal in the offense is subject to the same enhancement as the person who used or discharged the firearm. (§ 12022.53, subd. (e).)
Defendants were sentenced to an enhancement of 25 years to life based on findings by the jury that they were principals in the attempted murder, the offense was committed for the benefit of a criminal street gang, and a principal discharged a firearm and caused great bodily injury. Defendants contend there is insufficient evidence to support this enhancement. They argue the enhancement is necessarily based on a finding that the discharge of a firearm cause great bodily injury. However, they argue, the evidence is conflicting as to whether there even was a discharge in this instance. They further argue the evidence showed Mauryea's shoulder injury was only "'superficial.'" Defendants rely in part on section 243, subdivision (f)(4), which defines "serious bodily injury" in connection with a battery as "a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement." Defendants argue no rational trier of fact could have found Mauryea's "'superficial'" wound to be great bodily injury. We disagree.
First, we reject defendant's assertion the evidence is conflicting as to whether Mauryea was shot in the shoulder. Mauryea testified he was shot in the shoulder just before defendants departed. He further testified his skin burned and he could smell burnt flesh after the shot. Several witnesses either testified or gave statements to the police or investigators that they heard at least one gunshot during the skirmish. When Mauryea came back to the apartment after the incident, he announced he had been shot. In the ambulance on the way to the hospital, Mauryea told an attending officer he heard a shot and felt pain. The attending emergency room physician testified Mauryea had two wounds in his shoulder consistent with gunshots. He also testified there were metal fragments in Mauryea's shoulder. Even defendants' medical expert acknowledged that one of the wounds on Mauryea's back was from a ...