Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Los Angeles County Super. Ct. No. PA046660
Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Ruben Bernal was convicted, following a jury trial, of two counts of willful, deliberate and premeditated attempted murder of a peace officer in violation of Penal Code sections 187 and 664, two counts of assault with a firearm on a peace officer in violation of section 245, subdivision (d)(1), one count of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) and one count of grand theft auto in violation of section 487, subdivision (d)(1). The jury found true the allegations that appellant personally used and discharged a firearm in the commission of the offenses within the meaning of sections 12022.53, subdivisions (b) and (c) and 12022.53, subdivisions (a) and (d) and that he had previously been convicted of a felony within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) (the "three strikes" law). The trial court sentenced appellant to a total term of 109 years in prison.
All further statutory references are to the Penal Code unless otherwise specified.
Appellant appeals from the judgment of conviction, contending that the evidence is insufficient to support his conviction for two counts of premeditated attempted murder. He further contends that California's Pitchess discovery procedure is violating his due process right to meaningful appellate review, and his Sixth Amendment right to effective assistance of counsel. We affirm the judgment of conviction.
Facts
On June 3, 2004, Los Angeles County Sheriff's Deputies Juan Carrillo and Robert Morris followed appellant after noticing the red Toyota Corolla he was driving had no license plate or visible registration, and a gas tank cover that appeared to have been pried open. They pulled over appellant after he turned into a parking lot without making a turn signal.
The deputies got out of their patrol car and approached appellant's car, which was parked slightly in front of their car. Deputy Carillo walked up to the passenger's side. Deputy Morris approached the driver's side and asked appellant if he had a driver's license. Appellant responded, "yes, I have a fucking license." Deputy Morris testified that he got suspicious because appellant looked back at him multiple times while reaching for his license in his waistband area and because he noticed a screwdriver in the center console. Deputy Carrillo testified that he also got suspicious that appellant was "hiding something" because appellant was "picking around" with his waistband. Appellant handed over his license and stated that the car was a friend's. Believing the car might have been stolen, Deputy Morris asked appellant to step out of the car.
As appellant got out of the car, Deputy Morris held the door and went to put his hands on appellant and to turn appellant around so that he could conduct a pat-down search. After appellant tried to run between the door and Deputy Morris, the deputy grabbed his shirt and shoulder. Appellant pulled out a revolver. Deputy Morris pushed appellant off, drew his weapon, and yelled, "He's got a gun." Deputy Carrillo also drew his weapon as he saw appellant pointing his revolver at Deputy Morris. Deputy Morris fired one shot at appellant. Appellant fled.
The deputies chased appellant through the parking lot, and ordered him to stop and drop his revolver, but appellant continued running and pointed his revolver at them as they caught up with him. They were 20 or 25 feet from appellant and were within three feet of each other. Deputy Carrillo fired two shots at appellant after appellant ignored his order to drop his gun and pointed his gun at the deputies.
Appellant continued running away and again raised his revolver after being ordered to stop and drop his gun. Deputy Morris testified that appellant aimed "right at" him and Deputy Carrillo. Valery Verevervev, who was less than 20 feet behind the deputies, witnessed the whole incident. He testified that he saw appellant pointing his gun at both deputies only once, and saw and heard appellant firing a single gunshot at them.
Both deputies returned fire. Appellant fell to the ground and his revolver came out of his hand and fell underneath a ladder. The deputies arrested him. Neither the deputies nor Verevervev heard the revolver discharge when it fell to the ground. Appellant received three bullet wounds.
Firearms expert and senior criminalist James Carroll examined and test-fired appellant's .45 caliber Colt model 1878. He concluded that this revolver was operational, and was manufactured between 1877 and 1905. The revolver's single action cocking notch was greatly worn and did not function properly and the revolver was not very reliable in the single action position. Carroll found five live cartridges and one fired cartridge case in the cylinder of the revolver. Based on his microscopic analysis of the bullet fragments recovered from the parking lot, Carroll concluded that a single shot had been discharged from appellant's revolver. Carroll testified that appellant's revolver could discharge if dropped because it did not have any safety mechanism, but added that such accidental discharge was likely only if the revolver landed directly on the hammer. Carroll did not conduct any test as to the likelihood of accidental discharge, but he opined that it was "much easier" to discharge the revolver by pulling the trigger than by dropping it.
DISCUSSION
1. Sufficiency of evidence
Appellant contends that his convictions for premeditated attempted murders of Deputies Morris and Carrillo must be reversed and dismissed because the evidence adduced at trial was insufficient. He argues that the evidence strongly suggests that a single shot might have been discharged from his gun accidentally, or that he might have fired in self-defense. Alternatively, appellant argues that the single shot he fired reflects his intent to kill only one deputy and cannot support two attempted murder convictions. Finally, appellant urges that no evidence supported the jury's findings that the attempted murders were premeditated. We see sufficient evidence to support appellant's convictions.
"'The proper test for determining a claim for insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Smith (2005) 37 Cal.4th 733, 739.)
"'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' (People v. Jones (1990) 51 Cal.3d 294, 314.)" (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Smith, supra, 37 Cal.4th at p. 739.)
"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." (People v. Thomas (1992) 2 Cal.4th 489, 514, internal quotations omitted, citing People v. Bean (1988) 46 Cal.3d 919, 932-933.)
To support an attempted murder conviction, the evidence must show "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. Smith, supra, 37 Cal.4th at p. 739.) "The wrong-doer must specifically contemplate taking life; and though his act is such as, were it successful, would be murder, if in truth he does not mean to kill, he does not become guilty of an attempt to commit murder." (People v. Bland (2002) 28 Cal.4th 313, 327-328, internal citations omitted.)
We first consider the requisite act required for conviction for attempted murder. Both deputies and the civilian witness testified at trial that appellant pointed his gun at the deputies. The civilian witness also testified that he heard and saw appellant fire a shot at the deputies. This is sufficient evidence that appellant intentionally fired his gun at the deputies.
Appellant presented his theory about accidental discharge to the jury. Further, the jury was instructed that accidental firing negated the element of the specific intent to kill for attempted murder. The jury not only found appellant guilty of the attempted murder charges, it specifically found that appellant personally and intentionally discharged a firearm, indicating jurors rejected the defense theory of accident. It was for the jury to decide whether to believe the testimony of the civilian witness or the theory presented by appellant.
Second, we consider the intent or mental state required for conviction for attempted murder. To convict a defendant of multiple attempted murders on grounds of a single act, the jury must assess the defendant's state of mind independently as to each alleged victim and must find beyond a reasonable doubt that defendant harbored express malice (i.e., an intent to unlawfully kill) toward each alleged victim. (People v. Smith, supra, 37 Cal.4th at p. 739; People v. Bland, supra, 28 Cal.4th at p. 328.) Express malice requires a showing that the defendant either desires the victim's death or knows to a substantial certainty that his or her actions would result in the victim's death. (People v. Smith, supra, 37 Cal.4th at p. 739)
In People v. Smith, supra, 37 Cal.4th at page 739, the defendant fired a single bullet into a slowly moving vehicle, narrowly missing the driver and her baby son who was seated directly behind her. On appeal, the defendant contended that his conviction for attempted murder of the baby must be reversed because he harbored no animus toward the baby and the single shot only evidenced his intent to kill the mother. (Id. at p. 738.) The California Supreme Court held that in the absence of any contrary evidence, a rational jury could reasonably infer that the defendant acted with intent to kill both the baby and the mother when he fired a shot at them from close range, knowing both of them were directly in his line of fire, even though the defendant had no motive to kill the baby. (Id. at pp. 743-744.)
In People v. Chinchilla (1997) 52 Cal.App.4th 683, the defendant fired a single shot at two police officers, one of whom testified that she was "crouched behind but above" the other officer. (Id. at p. 690.) This Division rejected the defendant's insufficiency of evidence challenge to the two convictions for attempted murder and held that a reasonable jury could infer that the defendant intended to kill both officers, where he "endangers the lives of both officers" who were visible to him. (Id. at pp. 690-691.)
On appeal, appellant argues that Chinchilla is distinguishable because unlike the present case where he only fired a single shot, the defendant in Chinchilla had earlier fired two shots at other police officers at the scene, which supported the inference of his intent to kill both police officers at whom he later fired his single shot. We do not find this factual difference dispositive. In this case, the deputies testified that, at the moment appellant aimed and fired at them from a distance of 20 to 25 feet, they were "right next to" each other, one slightly behind the other, less than three feet diagonally. Like the defendant in Chinchilla who endangered the lives of two officers visible to him when he fired the single shot, appellant also endangered the lives of the two deputies who were visible to him when he fired the single shot at them. Like the defendant in Smith who fired at both victims from close range, appellant also fired at both deputies from a close distance of 20 to 25 feet. Viewing the record in the light most favorable to the conviction, as we must, we conclude that the facts in this case are sufficiently analogous to those of Chinchilla and Smith and that on these facts, a reasonable jury could have inferred that appellant harbored a specific intent to kill both deputies.
Third, we consider appellant's contention that there was insufficient evidence to support the jury's finding that the attempted murders were willful, deliberate and premeditated. To establish that an attempted murder was committed with premeditation, the evidence must show that the killing resulted from "preexisting reflection rather than unconsidered or rash impulse." (People v. Combs (2004) 34 Cal.4th 821, 850, internal citations omitted.)
Appellant argues that there is no evidence of planning activity or pre-existing motive to kill both deputies. However, "[e]vidence concerning motive, planning, and the manner of killing are pertinent to the determination of premeditation and deliberation, but these factors are not exclusive nor are they invariably determinative." (People v. Silva (2001) 25 Cal.4th 345, 368.)
Appellant further contends that the evidence that he did not immediately open fire after getting out of his car, but ran away, and returned fire only after they "repeatedly fired at and wounded" undercuts the finding that he premeditated the killing. He urges that his shot resulted from "desperation and impulse rather than pre-existing reflection." We are not persuaded. "The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." (People v. Manriquez (2005) 37 Cal.4th 547, 577, internal punctuation and citations omitted.) The deputies testified at trial that appellant aimed "right at" them. On the evidence, a reasonable jury could have inferred that appellant reflected, even if only briefly, on killing the deputies during his flight.
Even if we were to find that the inference that appellant acted out of desperation was as reasonable as the inference that he deliberated, this situation would not assist appellant on appeal. When as here, "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." (People v. Thomas, supra, 2 Cal.4th at p. 514, internal citation and quotation marks omitted.)
2. Pitchess motion
Prior to trial in this matter, appellant filed a motion for discovery of police officer personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. The trial court held an in camera hearing and ordered some personnel records disclosed to the defense, but not others. Appellant now contends the sealing of the hearing record infringed upon his due process right to meaningful appellate review, and his Sixth Amendment right to effective assistance of counsel because the unavailability of an adequate appellate record precludes his appellate defense counsel from raising all reasonably arguable issues, including whether the trial court ruled correctly on his Pitchess motion. Alternatively, appellant requests that this Court conduct an independent review of the in camera proceedings done by the trial court in response to his Pitchess motion.
This option is codified in Penal Code sections 832.5, 832.7 and 832.8 and Evidence Code sections 1043, 1045, 1046, and 1047.
The constitutionality of the Pitchess procedure is well-established. (E.g., Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 535-540; People v. Mooc (2001) 26 Cal.4th 1216, 1225-1232; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9-16.) We are bound by decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We note that the California Supreme Court recently rejected a very similar constitutional challenge to the Pitchess procedure. (People v. Prince (2007) 40 Cal.4th 1179, 1283-1286.) In Prince, supra, 40 Cal.4th at page 1283, the defendant claimed that his lack of access to the sealed record of the trial court's in camera hearing on his Pitchess motion violated his right to have a full and accurate record that permitted meaningful appellate review, and also violated his Sixth Amendment rights to confrontation and to counsel. (Id. at pp. 1283-1284.) The Supreme Court found nothing in the Pitchess procedure itself which violated "defendant's right to counsel, to put on a defense, and to confrontation . . . ." (Id. at p. 1284.) The Court examined the record in the case, including the sealed transcripts of the in camera hearing, and found that the record was adequate to permit meaningful appellate review. (Id. at p. 1285.) The Court noted that the sealed records included a full transcript of the in camera hearing and the relevant documents. (Ibid.)
We have reviewed the record in this case and find it adequate to permit meaningful appellate review. There is a full transcript of the in camera hearing, including a description of the documents provided by the custodian of records. We have also independently reviewed that transcript and see no prejudicial error in the trial court's rulings concerning disclosure. (See People v. Mooc, supra, 26 Cal.4th at p. 1229 [When requested to do so by an appellant, the appellate court can and should independently review the transcript of the trial court's in camera Pitchess hearing to determine whether the trial court disclosed all relevant complaints].)
DISPOSITION
The judgment is affirmed.
We concur: MOSK, J.; KRIEGLER, J.