(Super. Ct. No. 07F04046)
The opinion of the court was delivered by: Nicholson , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Bennett Louis Kovac and Wayne Caskey murdered Gary Brooks in his shop in south Sacramento at about 3:24 a.m. on June 11, 2006. Convicted of first degree murder with an arming enhancement and sentenced to state prison for an indeterminate term of 25 years to life plus one year for the arming enhancement, defendant appeals. He contends: (1) the evidence was insufficient to convict him, (2) the court erred by excluding evidence of third party culpability and not giving pinpoint third party culpability instructions, (3) the court erred by denying defendant's motion for mistrial based on juror misconduct, and (4) trial counsel was constitutionally deficient. Finding no prejudicial error, we affirm.
We need not recount the evidence here because we do so below in response to defendant's contentions that the evidence was insufficient to support the murder conviction and the trial court erred with respect to evidence of possible third party liability.
The district attorney charged defendant by information with murder (Pen. Code, § 187, subd. (a)) and alleged that a principal was armed during the crime (Pen. Code, § 12022, subd. (a)(1)).
Caskey and defendant were tried together but with separate juries. Caskey's jury convicted him of first degree murder and found that he personally discharged a firearm resulting in death. Defendant's jury, however, could not reach a verdict, so the court declared a mistrial.
Defendant was tried by a second jury, which found defendant guilty of first degree murder and found that a principal was armed during the crime.
The trial court sentenced defendant to state prison for an indeterminate term of 25 years to life, with an additional one year for the arming enhancement.
Defendant contends that the evidence was insufficient to support his first degree murder conviction for aiding and abetting Caskey. The contention is without merit.
The court properly instructed the jury on principles related to murder liability both as the direct perpetrator and as an aider and abettor. Concerning the firearm enhancement, the court instructed the jury to find the allegation true if one of the principals was armed with a firearm in the commission of the crime. As noted above, the jury convicted defendant of first degree murder, with an enhancement that a principal was armed with a firearm.
Defendant contends that the evidence was insufficient to convict him of aiding and abetting first degree murder. He argues there was insufficient evidence that: (1) he knew of Caskey's intent to commit the crime and intended to aid that plan and (2) he was involved at all in the crime.
A. Aiding and Abetting Evidence
This is a circumstantial evidence case. "Our task is clear. 'On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" [Citation.]' [Citations.] The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' [Citation.]" (People v. Cravens (2012) 53 Cal.4th 500, 507-508.)
"[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus - a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea - knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus - conduct by the aider and abettor that in fact assists the achievement of the crime. [Citation.]" (People v. Perez (2005) 35 Cal.4th 1219, 1225.)
Here, as we discuss in detail below, the evidence showed that (1) Caskey had an argument with Brooks on the day before the murder, during which Caskey fired a handgun into a door to intimidate Brooks, (2) Caskey and defendant are close friends, even referring to each other as brothers, (3) about 30 minutes before the murder, which other evidence established occurred at about 3:24 a.m., defendant was at an AM/PM gas station with his light colored sport utility vehicle (SUV) within one mile of Brooks's shop, (4) defendant's SUV drove to Brooks's shop minutes before the murder, (5) two big men fitting the description of Caskey and defendant were seen with masks on and armed with rifles, (6) witnesses heard gunshots at the time Caskey and defendant were at the shop, and (7) in the minutes after the murder, the cell phones of Caskey and defendant moved away from the murder scene. We discuss below each of these facts and how the jury could have drawn inferences that defendant was guilty.*fn1
Defendant contends that mere presence at the scene of a crime is not sufficient to establish aider and abettor liability. (In re Michael T. (1978) 84 Cal.App.3d 907, 911.) He is correct, but here there was evidence of more than mere presence. As noted, a witness saw two big men fitting the descriptions of Caskey and defendant by Brooks's shop at the time of the murder. Both men were armed with rifles. Gunshots were heard, and one of assailants shot at the witness.
In summary, reasonable inferences drawn from the circumstantial evidence established that (1) defendant and Caskey, who were like brothers, (2) went to Brooks's shop in defendant's SUV, (3) disguised and armed themselves, (4) went into Brooks's shop, (5) shot him, and (6) fled. Under these facts, defendant was either the actual perpetrator or aided and abetted Caskey, as the jury could reasonably conclude that the two assailants entered the shop with the same intent to kill Brooks and carried out that intent together. (People v. Perez, supra, 35 Cal.4th at p. 1225.)
B. Defendant's Contentions as to Specific Evidence
1. Argument Between Caskey and Brooks
Referring to possible motive evidence, the prosecutor argued that Caskey and Brooks were involved in a dispute and someone shot two holes in the shop door on June 10, 2006. Defendant, however, claims that there is no evidence that there was a dispute between Caskey and Brooks on that occasion. He argues there is no evidence of a dispute or that the discussion was heated at all. The reasonable inferences drawn from the evidence suggest otherwise.
On the evening of June 10, 2006, several people were at Don Newcomb's shop, in the same block as Brooks's shop, loading a welder into Caskey's Ford Bronco. While the welder was being loaded into the Bronco, Caskey showed Kenwood Massey that he had Newcomb's .45-caliber handgun. Caskey put the handgun in the back waistband of his pants. As Brooks was tying down the welder, witnesses saw Brooks and Caskey conversing. It was a serious discussion, but the witnesses did not know what Brooks and Caskey were discussing and did not hear any yelling or screaming. They were standing face to face, less than a foot from each other, and Brooks had, in the words of a witness, "kind of like a smart remark on his face the whole time." One of the witnesses, Francisco Lopez, saw Caskey circle around the Bronco. Lopez heard two shots and saw two holes in the roll-up door of the shop. Caskey circled back around the Bronco and continued his discussion with Brooks, again close to each other. Brooks again had a sarcastic look on his face. Lopez did not see a gun, and he could not see Caskey when Caskey was on the other side of the Bronco. Two expended .45-caliber shell casings were found near Newcomb's shop, and Newcomb noticed later that his .45-caliber handgun was missing.
Defendant argues that this evidence did not establish a motive for Caskey and defendant to kill Brooks. While motive is not an element of murder (see People v. McKinzie (2012) 54 Cal.4th 1302, 1357 [motive not an element of crime, though it may tend to prove guilt]), the inferences to be drawn from the incident are that the discussion between Brooks and Caskey was not friendly, Caskey fired shots into the shop door to intimidate Brooks, and there was some kind of bad blood between them.
2. Friendship Between Caskey and Defendant
Defendant does not dispute that he and Caskey were close friends who spoke often and even, at times, referred to each other as brothers. However, he claims that "[t]he State asked the jury to use the fact of their close friendship as a critical link in the chain to the conclusion that [defendant] naturally must have aided and abetted Caskey." We find this prosecutorial argument unremarkable, and certainly not improper.
Defendant continues: "While no one disputes the fact that Caskey and [defendant] were good friends, the State asked the jury to take an enormous speculative leap to conclude that their closeness necessarily meant that [defendant] would willingly assist Caskey in the commission of a murder of someone [defendant] did not even know." (Original italics.) Again, using the close relationship between Caskey and defendant to establish a possible link between defendant and the murder is unremarkable. Furthermore, their close relationship was not the only evidence linking defendant to the murder. Accordingly, we see no logical problem with this argument by the prosecutor.
3. Singh's Description of Assailants
Defendant next attacks the testimony of Vimal Singh that (1) he drove up to Brooks's shop around the time of the murder, (2) he was shot at by the assailants, and (3) the assailants were big men, who fit the description of Caskey and defendant. Singh refused to testify in defendant's second trial, so his testimony from the first trial was read to the jury. On appeal, defendant argues that Singh's testimony could not establish that defendant was at the scene of the murder. While there were ways to impeach Singh's credibility concerning the identification, that was a jury question, and on our sufficiency of evidence review we find no reason to reject the jury's implicit determination that Singh's identification was accurate.
Defendant and Caskey are both big men. Caskey, known as Fat Man, is five feet, eleven inches tall and, at the time of the murder, weighed 225 pounds, and defendant is six feet, one inch tall and weighed 250 pounds, as the jury would have been able to see.
Singh, who is Fijian of Indian descent, and is about five feet, two inches tall and, at the time of the murder, weighed approximately 115 pounds, testified that he went to Brooks's shop in the early morning hours of June 11, 2006, to smoke methamphetamine with Brooks. While Singh was with Brooks, two other Fijians of Indian descent, Aman Kumar and Avneal Datt came into the shop. Singh testified that these other two Fijians "weren't big. Skinny." They were about five feet, five inches to five feet, seven inches. After being in the shop 30 to 45 minutes, Singh left to go looking for wood pallets and catalytic converters to steal.
After between 20 and 40 minutes of looking for wooden pallets and catalytic converters, Singh returned to Brooks's shop at about 3:25 a.m., wanting to smoke more methamphetamine. He did not see the car that the other Fijians arrived in. He saw another vehicle that had its lights on parked near Brooks's shop. He testified that he may have told an investigator later that it was a silver SUV. It was newer and was possibly a Chevrolet, Ford, or Nissan. He did not recognize the vehicle, so he was curious about who was in it. He passed Brooks's shop and the SUV and parked in front of the SUV. When the SUV turned its headlights on, Singh made a U-turn and parked closer to Brooks's shop.
Staying in his truck, Singh saw two people with rifles hunched down, by the gate into Brooks's shop. One was wearing a nylon stocking over his head, and the other was wearing a white mask. The two people were big, but Singh could not estimate their height because they were hunched down. Singh had seen a similar mask at the home of the Luper brothers - the men who had introduced him to Brooks. Singh also said that the two men were comparable in size to the Lupers, who are over six feet tall and weigh about 240 pounds. When Singh saw the men, they were about 38 feet away. And he was watching them in his driver's side-view mirror.
Singh lost sight of the men as they went in the direction of Brooks's shop. After a short period of time, Singh heard a shot, and then after another short period of time, another shot. Within a short period of time, the man with the stocking mask came out of the shop and made eye contact with Singh. The man raised his rifle and pointed it at Singh. Singh started his truck, ducked down, and drove away. The man shot at Singh four or five times. One of Singh's tires went flat, and he eventually stopped, left his truck, and hid under some trailers.
Referring to this testimony, defendant argues on appeal that it could not contribute to the identification of defendant as one of the assailants because (1) it was imprecise concerning the size of the assailants, (2) Singh had been using methamphetamine that night, (3) it was dark, and (4) he made the observations through his driver's side-view mirror. But these were all arguments for the jury. The testimony was not so incredible that the jury could not consider it.
Defendant also argues that Singh's credibility was suspect because Singh refused to testify in the second trial and, therefore, the jury could not see defense counsel's cross-examination. Again, these are arguments to be made to a jury; they do not require that we reject Singh's testimony on appeal.
Cell phone records of a phone commonly used by defendant showed that the phone was in the vicinity of the murder scene at the time of the murder and moved away from the scene in the minutes after the murder. This was part of the prosecution's case to show that defendant was involved in the murder.
On appeal, defendant claims that the cell phone evidence did not support the inference that he was in the vicinity of the murder scene or that he was leaving the area after the murder. We conclude that the evidence, viewed in the light most favorable to the verdict and in conjunction with the other evidence of defendant's participation in the murder, reasonably supports an inference that defendant was in the vicinity of the murder scene at the time of the murder and shortly thereafter left the area.
A security guard working for a company down the street from Brooks's shop heard gunfire that he testified occurred at 3:24 the morning of the murder. Two calls were made to a phone commonly used by defendant (ending in 5327) around that time. Although no one answered the phone, cell phone records identified the location of defendant's phone when each call was made. Cell phone records also identified the location of a phone commonly used by Caskey (ending in 5347) during approximately the same time frame and placed Caskey's phone near defendant's phone. The evidence establishing the approximate location of the cell phones came from cell phone records and the testimony of Joseph Kurtz, an engineer who works for MetroPCS, a cell phone company.
Kurtz testified concerning the calls made to defendant's number. At 3:28 and 12 seconds in the morning of June 11, 2006, defendant's phone received a call within blocks of Brooks's shop, where a vehicle would be if it was heading away from Brooks's shop toward Franklin Boulevard and Highway 99. That call connected to defendant's cell phone at cell tower number 357. At 3:30 and 47 seconds (two minutes, 35 seconds after the first call), ...