Opinion
No. A074574 (San Mateo County Super. Ct. No. SC36573)
January 20, 1998 Certified for Publication
Trial Court: Superior Court San Mateo County
Trial Judge: Honorable Thomas McGinn Smith
Counsel for Appellant: Kathleen E. McCasey Kyle Gee
Counsel for Respondent: Daniel E. Lungren Attorney General Seth K. Schalit Deputy Attorney General
Defendant and appellant Richard Wright (appellant) was charged with attempted premeditated murder (Pen. Code, §§ 187A, 664), assault with a firearm (Pen. Code, § 245, subd. (a)(2)), assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b)) and burglary (Pen. Code, § 460, subd. (a)). As to each offense the information alleged that appellant used a firearm (Pen. Code, § 12022.5, subd. (a)) and inflicted great bodily injury (Pen. Code, § 12022.7). The information also alleged that appellant had one strike prior felony conviction (Pen. Code, § 667, subds. (c), (d) and (e)), one serious prior felony conviction (Pen. Code, § 667, subd. (a)) and one prison prior felony conviction (Pen. Code, § 667.5, subd. (b)).
A jury found appellant guilty of each offense as charged and alleged. In a trial before the court each allegation of a prior was found to be true. The trial court sentenced appellant to life imprisonment with the possibility of parole for the attempted premeditated murder (count 1), added enhancements and adjusted the sentence pursuant to the two strike provisions of the three strikes law. Sentence on the other offenses was stayed or stricken pursuant to Penal Code section 654.
Appellant contends: (1) the finding of personal infliction of great bodily injury is not supported by substantial evidence; (2) error occurred regarding Mark Dolan and immunity; (3) error occurred regarding his motion for a new trial and continuance, and (4) there was sentencing error. We affirm the convictions and modify the sentence.
I. FACTS
Bret Evans testified that on April 25, 1994, he rented a room in a house. Mark Dolan, who was the owner's brother, lived in a separate area of the house. During the time Evans lived in the house he observed Dolan sell marijuana. Evans was not involved in the drug transactions.
On April 25, 1994 at a little after 6:00 p.m., Evans heard knocking on the front door. He did not immediately respond because most of his guests used the garage door while persons visiting Dolan came through the front door. The knocking persisted and after ascertaining that Dolan was not at home, Evans opened the front door about one inch.
Two black men pushed their way into the house. Both men had baseball caps on their heads and wore hooded sweatshirts. The hoods covered the baseball caps as well as their heads. Evans could see the faces of the men, which were not covered. The taller man wore a green sweatshirt while the shorter wore a red sweatshirt. In court, Evans identified the shorter man as appellant. Evans had also identified appellant in a live lineup and at the preliminary hearing. No identification of appellant was made at a photographic lineup.
Appellant and his companion pulled out semi-automatic assault guns as soon as they entered the house. Evans described himself as a "gun enthusiast" who frequently studied the different types of weapons in magazines or stores, fired weapons in safe situations, and owned some guns. He could see that appellant's weapon looked just like a "Tech-9 weapon".
Evans described the ensuing events in the house as follows. Appellant pointed his gun at Evans and asked where Dolan could be found. At the same time the other man looked around the rest of the house. No response was made by Evans to the question. Appellant told Evans to "get on the ground and don't make any noise." Fearing for his life, Evans ran out of the house rather than lying on the ground as ordered.
As he was running down the stairs of the house, Evans heard a gunshot and felt something "like a bee sting" on the back of his shoulder. He continued to the bottom of the stairs, where he heard two gunshots which hit the back of his right thigh and calf respectively. In Evans' words, these shots to the leg caused him to feel "hot and a lot of pain, felt a lot of pain"; they "knocked my foot out from under me, knocked my leg out from under me."
Evans quickly stood up and ran to his neighbor's home. While standing outside his neighbor's home he observed appellant and the other man enter an automobile and drive away. Appellant was the driver. Evans was able to ascertain the license plate number of the automobile and transmit it to the police.
The automobile was registered to appellant, Rebecca Young and the mother of Rebecca Young. Rebecca Young was the principal owner/driver. Appellant was the boyfriend of Young and she was pregnant with appellant's child on April 25, 1994. The registration listed all three because Young was on welfare and appellant was employed. Young told the police that she loaned the automobile to her boyfriend on April 25, 1994. On the taped portion of her statement she did not name appellant as her boyfriend.
At trial, Young testified that on April 25, 1994, she loaned the car to Dante Williams, who was also her boyfriend. Dolan mentioned to the police that a person named Dante knew that there was a lot of money at the house. Dante Williams was not thoroughly investigated because the police believed that Dolan was lying to cover his drug activities.
At the scene of the shooting the police discovered the spent casings of two 9mm cartridges, which indicated that a 9mm weapon had been fired. A .22 caliber bullet was removed from the back of Evans' shoulder. The bullets which struck Evans' legs were not recovered. From this evidence, a firearm expert determined that bullets were fired from two different guns.
Evans examined his own wounds and determined that the leg wounds were made by something other than a .22 caliber because, "the holes were a lot bigger, and to go through someone's leg it had to be a pretty powerful, high-caliber weapon." Other witnesses noticed that blood was flowing from the leg without commenting on the shoulder. Detective David Bertini described the injury to the shoulder as a "puncture wound." When asked at trial about the current state of his wounds, Evans responded that he still felt "a lot of pain" in his leg. Evans admitted a prior marijuana conviction and that he had brought a civil action for damages against Dolan and his brother.
The defense was misidentification and alibi.
II. SUBSTANTIAL EVIDENCE
Appellant contends that the "evidence does not support the allegation regarding personal infliction of great bodily injury on the victim." This contention lacks merit.
In People v. Cole (1982) 31 Cal.3d 568, 571, the Supreme Court "concluded that the Legislature intended to impose an additional penalty for causing great bodily injury only on those principals who perform the act that directly inflicts the injury, and that one who merely aids, abets, or directs another to inflict the physical injury is not subject to the enhanced penalty of section 12022.7."
"When a jury's verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion." ( People v. Brown (1984) 150 Cal.App.3d 968, 970, italics in original; People v. Johnson (1980) 26 Cal.3d 557, 576-577.)
Herein, the physical evidence and the testimony of the firearm expert establishes that two different weapons — one using 9mm bullets and one using .22 caliber bullets — were fired at the scene of the attempted murder. The victim, Evans, saw that semi-automatic weapons were carried by each of the two men who assaulted him. Evans had considerable knowledge of firearms. He also noticed the different effects of the shots to his back and to his legs, by observing the different amounts of pain when the shots struck him and by inspecting the resulting wounds. Based on his experience, observations and sensations, Evans concluded that the leg wounds were inflicted by something other than the .22 which was removed from his shoulder. Evans' observation that the leg wounds were more serious was supported by other witnesses. Thus, the record gives rise to an inference that appellant and his companion each personally fired a shot that inflicted physical injury on Evans.
III. MARK DOLAN
Appellant contends that the trial court improperly allowed the prosecutor to intimidate Mark Dolan into asserting his privilege not to testify and then improperly declined to grant immunity to Dolan. These contentions lack merit.
During the trial, defense counsel indicated that he planned to call Mark Dolan and his brother as witnesses to testify that Evans rather than Dolan was the person dealing drugs. The prosecutor requested that Dolan be advised by the judge that he might incriminate himself and had the right to appointed counsel. Evans had testified that Dolan was a drug dealer. Defense counsel "vigorously" objected, arguing that Dolan would be intimidated and that Evans was not so advised. The trial court ruled that it was required to give the advice because of the incriminating evidence.
At a subsequent proceeding on the same day, an attorney was appointed for Mark Dolan. After Dolan and his counsel were apprised of the extant evidence and proposed defense questions, the prosecutor announced that he would question Dolan about drug dealing. In addition, the prosecutor intended to ask whether Dolan had knowledge of forfeiture laws to the effect that his house could be seized if purchased with funds derived from criminal acts. The trial court asked if Dolan would invoke his right to remain silent. Dolan invoked his right and the prosecutor declined to offer immunity to Dolan.
In People v. Lucas (1995) 12 Cal.4th 415, 460, the Supreme Court set out the rules governing grants of immunity to a witness by a court: "the vast majority of cases, in this state and in other jurisdictions, reject the notion that a trial court has inherent power to confer immunity on a witness called by the defense. The one jurisdiction that recognizes such a power, we have observed, also recognizes that . . . [T]he defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the defendant's case. Immunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or it is found to relate only to the credibility of the government's witnesses." (Citations and internal quotation marks omitted.) Immunity could not have been granted to Dolan in the instant case as his testimony did not meet any of the essential criteria.
"[W]hen a trial court has reason to believe that a witness may be charged with a crime arising out of events to which he might testify, it has a duty to insure that the witness is fully advised of his privilege against self-incrimination. [Citations.]" ( People v. Warren (1984) 161 Cal.App.3d 961, 972.) However, the trial court must not threaten the witness. ( Id. at p. 972.)
"[T]he prosecutor's duty is to administer the immunity power evenhandedly, with a view to ascertaining the truth, and not as a partisan engaged in a legal game." ( People v. Hunter (1989) 49 Cal.3d 957, 974-975.) Generally, no reversible error occurs unless the record contains evidence that "the prosecutor intentionally refused to grant immunity to a key defense witness for the purpose of suppressing essential, noncumulative exculpatory evidence." ( Id. at p. 975.) A prosecutor is also prohibited from threatening a witness that "if he testified he not only could but probably would be prosecuted by the district attorney's office." ( People v. Warren, supra, 161 Cal.App.3d at p. 973.) To protect all concerned interests, an attorney should be appointed to advise the witness. ( Id. at p. 974.)
In the present case, evidence had been introduced that Dolan violated the drug laws and the question of his involvement was going to be a crucial aspect of his testimony. Dolan's testimony was not exculpatory, the likelihood of prosecution was not discussed by the trial court or prosecutor and an attorney was appointed to represent Dolan. Accordingly, the trial court acted properly and the prosecutor's conduct fell within acceptable limits.
IV. SECOND MOTION FOR NEW TRIAL
Appellant contends that the trial court improperly ruled on his second motion for a new trial. This contention lacks merit.
The jury verdicts issued on February 29, 1996. On March 29, 1996, appellant's trial counsel filed a motion for a new trial on the grounds of prosecution intimidation of potential witness Mark Dolan and prosecution misconduct during argument.
On April 1, 1996, the time set for a hearing on trial counsel's motion, the trial court was informed that "last week" appellant retained and paid Joseph O'Sullivan to serve as his counsel. Appellant represented that he was advised by attorney Kathleen McCasey that the trial court had agreed to grant a motion for a time waiver. The trial court responded that it had only indicated it would continue the matter if a new attorney appeared and requested a continuance. Appellant stated that he expected O'Sullivan to be in court. Trial counsel advised that he "didn't know anything about this until this morning." A one week continuance was granted and trial counsel's motion to withdraw was granted.
On April 8, 1996, John Lee appeared specially for Kathleen McCasey on behalf of appellant to ask for a continuance. Lee stated that McCasey requested a six week continuance, adding that he "d[id]n't know if that's reasonable or not." The trial court replied that it was not. Lee then requested "whatever the court's willing to extend." A continuance to April 30, 1996 was granted with the approval of Lee and appellant. The trial court ordered Lee to tell McCasey that "I am not going to continue the case after that. She must have all of her documents on file and be ready to proceed."
On April 30, 1996, McCasey appeared for appellant. The trial court announced that "yesterday" McCasey had attempted to "file" a motion for new trial and supporting documents. Since she "failed to comply with any time requirements", the documents would be marked "received" rather than filed.
The received documents are: (1) a motion to continue motion for new trial; (2) a motion for a new trial on the grounds of incompetence of counsel for failure to move to exclude the lineup identification and prosecutorial misconduct; (3) a memorandum in support of the motion for new trial; (4) correspondence by facsimile between McCasey and court reporter Jeanne Bishop from April 17, 1996 through April 23, 1996 regarding McCasey obtaining a trial transcript; (5) declarations of McCasey in support of the motions for new trial and continuance, and (6) a declaration of attorney Richard Shikman in support of the motion for a new trial.
The correspondence and McCasey declarations disclose that McCasey was on vacation from at least April 8, 1996 until April 15, 1996 and did not obtain a trial transcript, in part, because she did not promptly respond to the court reporter's letter of April 18, 1996. McCasey's requests for a continuance were consistently denied.
At the April 30, hearing McCasey again requested a continuance and declined to argue in favor of trial counsel's motion for a new trial. Her only argument was that a continuance should be granted. The trial court denied her request on the grounds: "We don't continue cases ad infinitum. You've had several continuances. The case is not going to be continued any more." McCasey declared: "Had I known that I would not be given adequate time to prepare a motion for a new trial after receiving the necessary transcripts I would not have substituted in and taken on this important post-trial hearing which my client has a right to have." The trial court responded "An inquiry would probably have served you very well, Ms. McCasey." Trial counsel's motion for a new trial was then denied.
Penal Code section 1202 provides in pertinent part: "If the court shall refuse to hear a defendant's motion for a new trial or when made shall neglect to determine such motion . . . , the defendant shall be entitled to a new trial." In People v. Sarazzawski (1945) 27 Cal.2d 7, the Supreme Court interpreted the statute. It held that: "Defendant, of course, had no absolute right to have the motion for a new trial heard at the convenience of his counsel." ( Id. at p. 12.) "[I]n some circumstances a trial judge in the exercise of his discretion may refuse defendant's request to orally argue a motion for new trial [Citation.]" ( Id. at p. 17.) However, "[t]hat counsel for a defendant has a right to reasonable opportunity to prepare for a trial is as fundamental as is the right to counsel." ( Ibid.)
The case should be resolved on the basis of what actually happened and was ruled on, not just on the words used. ( People v. Allen (1986) 42 Cal.3d 1222, 1260.)
"[E]ach case is to be tried on its facts and in each case there must be a determination as to whether or not the trial court abused its discretion in denying a continuance . . . ." ( People v. Trapps (1984) 158 Cal.App.3d 265, 271.) No abuse of discretion occurs when counsel is "clearly told when the motions would be heard and allowed a reasonable time to prepare . . . ." ( People v. Ketchel (1963) 59 Cal.2d 503, 547, disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2, 648-649.) Defendants and their counsel are required to act with diligence and may not demand a continuance if they are unjustifiably dilatory. ( People v. Rhines (1982) 131 Cal.App.3d 498, 506.)
In the present case, the arguments and rulings on McCasey's motion for new trial and motions for continuances were blended together. However, the central issue presented and decided was whether a continuance should be granted. Although McCasey proffered a motion for a new trial and supporting documents, she always consistently maintained that she was not given sufficient time to make the appropriate showing for a new trial. Thus, the issue before us is whether the trial court abused its discretion in denying any further continuances. Stated alternatively, was appellant's counsel given a "reasonable opportunity to prepare."
Based upon all the facts and circumstances, we conclude that the trial court ruled properly. On April 1, the trial court was officially advised that "last week" appellant had retained a new counsel in conjunction with a motion for a new trial. Counsel failed to appear and a continuance of one week was granted. On April 8, counsel appeared for appellant and was granted a three week continuance until April 30. Thus, continuances totaling approximately 30 days, or four weeks, were granted from the time appellant retained new counsel and counsel had an additional week before the first hearing. Five weeks provides a reasonable opportunity to prepare a modified motion for a new trial.
Further, on April 8, the trial court notified appellant's counsel that no further continuances would be granted. Nevertheless, no action was taken by counsel, or her office or associates while she was on vacation, to obtain the trial transcripts until April 17 and a prompt reply was not made to the court reporter's letter. Indeed, counsel's principal effort was to request further continuance even when it was obvious none would be granted. These actions exhibit a lack of diligence by the counsel retained to represent appellant and are dilatory.
V. SENTENCE
The abstract of judgment sets out the sentence as follows. For the attempted murder appellant was sentenced to "life without the possibility of parole." A total of 13 years was imposed for the enhancements, including five years for the serious prior (Pen. Code, § 667, subd. (a)) and one year for the prison prior (Pen. Code, § 667.5, subd. (b)). Further, "Per PC 667(c)(d)(e), [appellant] is to serve a minimum of 26 years. [¶] Per PC 667(c)(d)(e), [appellant] is sentenced to 14 years to life on cnt. 1 (twice the base term 7 years to life) plus 13 years enhancement time consecutive to count 1." The term of 26 years was calculated by doubling the sentence for enhancements.
The parties each propose some corrections to the abstract. Both agree that the abstract must be modified as follows: (1) the box for life with, rather than without, the possibility of parole must be checked since that was the sentence imposed by the trial court, (2) the sentence of one year for the prison prior enhancement must be stricken pursuant to People v. Jones (1993) 5 Cal.4th 1142, 1144-1145, 1153), and (3) the term for enhancements should be stated as a consecutive sentence rather than a "minimum term" affixed to the life sentence. Respondent concedes that the term for enhancements should not be doubled under section 667, subdivision (e)(1), because the section does not refer to enhancements. Appellant does not dispute this concession and People v. Brady (1995) 34 Cal.App.4th 65, 71, fn. 11 holds that enhancements are not doubled in a two strikes case. We accept these agreements and concessions.
The fundamental disagreement of the parties is over whether any minimum term should be affixed to the life sentence. Appellant contends: "[I]n a `two strikes' case involving a `straight life' sentence with determinate enhancements, the Abstract should specify the determinate years, state a sentence of life-with-possibility-of-parole, and specify that [667](e)(1) applies. The Board of Prison Terms can then implement the computational and credit-fixing statutes and regulations. . . ." Respondent contends that the appropriate sentence is a life term with a minimum sentence of 14 calendar years plus a consecutive 12-year term for the enhancements.
Penal Code section 667, subdivision (e)(1) provides: "If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." Thus, appellant's indeterminate sentence is increased under the two strikes provision of the three strikes law only if the sentence includes a "minimum term."
Appellant was convicted of violating Penal Code section 664 which provides that the punishment for attempted willful, deliberate, and premeditated murder is "imprisonment in the state prison for life with the possibility of parole." Penal Code section 190, subdivision (a) provides that the punishment for first degree murder is death, life without possibility of parole or "confinement in the state prison for a term of 25 years to life." Penal Code sections 190, subdivisions (a) (b) and (c) provide that punishment for certain types of second degree murder is confinement in state prison for 15, 20, or 25 years to life.
Penal Code section 3046 provides: "No prisoner imprisoned under a life sentence may be paroled until he or she has served at least seven calendar years or has served a term as established pursuant to any other section of law that establishes a minimum period of confinement under a life sentence before eligibility for parole, whichever is greater." (Italics added.)
The essential difference between punishment for completed and attempted murders is that sentences for the more serious crimes, which include an intentional killing, contain a set number of years or minimum term, while sentence for the attempt has no minimum term. A comparison of the language and purpose of Penal Code sections 190, subdivisions (a) (b) and (c) with Penal Code section 3046 establishes that the minimum confinement period for determining a prisoner's eligibility for parole is not the equivalent of the "minimum term" for purposes of the three strikes law. Moreover, in at least one instance the Legislature indicates that the applicable minimum term is not the minimum confinement term which the prisoner must serve prior to release. Penal Code section 667.7, subdivision (a)(1) provides, in part, that "[a]rticle 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum term in a state prison imposed pursuant to this section, but the person shall not otherwise be released on parole prior to that time."
However, court of appeal cases have reached conflicting results in resolving the instant issue and the Supreme Court granted petitions for review in those cases ( People v. Jefferson (1996) 50 Cal.App.4th 958; People v. Peterson (1995) 49 Cal.App.4th 1810; People v. Alaimalo, unpublished opinion, B096306; People v. Diaz (1997) 54 Cal.App.4th 1499; People v. Perez, unpublished opinion, B097689; People v. Godoy, unpublished opinion, B107094).
People v. Barra (January 8, 1998, A076392) ___ Cal.App.4th ___ [98 Daily Journal D.A.R. 279, 282- 283] recently held that the term of life with the possibility of parole is a determinate sentence which should be doubled under the two strikes provisions of the three strikes law. We respectfully disagree. Barra claims that "Our Supreme Court has consistently characterized such a sentence as a determinate or express life term." ( Barra at 98 D.A.R. 282.) However, none of the three cases it cites involve sentencing issues. People v. Yates (1983) 34 Cal.3d 644, 648-650 and People v. Smith (1984) 35 Cal.3d 798, 808-809 are resolving the number of peremptory challenges allowed to a defendant while People v. Bright (1996) 12 Cal.4th 652, 656, 669 is concerned with double jeopardy. In contrast, California Rules of Court, rule 403 defines which offenses are "punishable as a felony by a determinate sentence imposed pursuant to chapter 4.5 (commencing with § 1170) of Title 7 of Part 2 of the Penal Code." The advisory committee comment to such section provides: "The sentencing rules do not apply to offenses carrying a life term or other indeterminate sentences for which sentence is imposed under new [Penal Code section] 1168."
Due to the uncertain state of the law, we conclude that appellant's position has merit and the abstract of judgment should state the sentence as life with possibility of parole plus a consecutive 12-year term for the enhancements, subject to Penal Code section 667, subdivision (e). In addition, and to assure that the abstract is unambiguous, it must be modified as follows: (1) the box for life with, rather than without, the possibility of parole is to be checked; (2) the sentence of one year for the prison prior enhancement is to be stricken. Once the Supreme Court reaches a decision on the issue discussed herein, the appropriate administrative authority can set the minimum time for parole and make the necessary adjustments for credits.
VI. DISPOSITION
The convictions are affirmed. The sentence is modified as stated directly above under heading V. Sentence.
________________________ Hanlon, P.J.
We concur:
________________________ Reardon, J.
________________________ McGuiness, J.