Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA071245, Arthur Jean, Jr., Judge.
Christopher A. Darden for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Lamarr Marvin Brown was convicted of two counts of premeditated attempted murder (counts 1 & 3), one count of assault with a deadly weapon (count 4), one count of felon in possession of a firearm (count 2), and firearms enhancements. He was sentenced to life imprisonment plus 10 years on count 1. Concurrent sentences were imposed on the remaining counts.
Appellant contends: (1) The evidence was insufficient to support his conviction for both counts of premeditated attempted murder. (2) The trial court committed prejudicial error when it instructed the jury that evidence of efforts by third persons to dissuade witnesses could be considered as a circumstance that tended to show consciousness of guilt.
We hold: (1) There was sufficient evidence for the premeditated attempted murder counts. (2) Since there was no evidence that appellant personally authorized the witness dissuasion efforts, it was error to give CALCRIM No. 371. In view of the overwhelming evidence of guilt, however, the error was nonprejudicial. We therefore affirm.
DISCUSSION
1. Sufficiency of the Evidence
Appellant attacks the sufficiency of the evidence that he committed the premeditated attempted murders of Jason Moore and Jimmie Ludwig.
A. The Facts
i. Prosecution Evidence
On the evening of February 3, 2006, Moore and Ludwig were in Ludwig’s apartment in Long Beach, babysitting Ludwig’s six-year-old son. Ludwig lived in the apartment with his son and his girlfriend, Teresa Anthony. Anthony was out with friends that evening. The apartment was on the second floor of the building. There was a parking area behind the building. Another building in the same apartment complex was behind the parking area.
Around 1:00 a.m., Anthony drove into the parking area. As she unlocked the gate, she saw appellant standing by a car. She did not know him. She drove to her stall, parked, and observed that appellant had walked to her car. He said something she could not hear, and then tried to open the front and back doors of her car. He did not succeed, as the doors were locked. She was frightened. She told him “to get out.” He walked back to the gate of the apartment building behind Anthony’s building. He stood there for a minute and then returned to Anthony’s car. He mumbled something she could not understand. She again told him to leave. She started her car in case she needed to drive away. He walked away through the gate into the back building.
Anthony left her car and started running toward her apartment. As she did so, she passed another resident of the building, Donald Wilson, who was downstairs near the staircase collecting recyclables from the trash area. She ran up the stairs, entered her apartment, and hysterically told Moore and Ludwig that a man had tried to enter her car. They decided to leave the apartment to look for the man.
Meanwhile, downstairs, appellant suddenly walked up to Wilson, “racked” a handgun and pointed it at Wilson’s chest. Wilson was surprised. He was on good terms with appellant, who also lived in the apartment complex. They had traded parking stalls several months earlier, after someone broke into appellant’s car and stole its rims. Wilson thought appellant might be intoxicated. He asked appellant, “Hey, what’s going on[?]” Appellant “looked at [Wilson] real hard” and said, “Oh, you are okay.” He lowered the gun and walked past Wilson, who returned to collecting recyclables.
Appellant does not contest the sufficiency of the evidence on count 4, assault with a deadly weapon on Wilson.
Upstairs, Moore left the apartment about a minute before Ludwig did, as Ludwig had to put on his shoes. Anthony stayed by the door.
At the trial, Moore testified that he did not see appellant when he left the apartment, and did not give a police officer a detailed description of what appellant did.
Police Officer Darren Lance testified, however, that, when interviewed following appellant’s arrest, Moore said that he left the apartment, ran downstairs, and saw appellant, whom he recognized as a person who lived in the complex. Appellant approached him and said, “Do you think I am a punk ass? I know you stole my tires.” He pulled a handgun from his waist, pointed it at Moore, and said he was going to shoot him. Moore feared for his life. He watched as appellant pointed the gun at Anthony and Ludwig, who had come outside onto the second floor walkway. Appellant pulled the trigger four or five times, appellant pulled the slide back, racked the gun and pulled the trigger, but the gun did not fire. He then turned back to Moore, pointed the gun at him, and pulled the trigger at least twice while racking the gun. The gun still did not fire.
When interviewed by Officer Lance, Anthony and Ludwig also discussed the incident. Unlike Moore, they were willing to testify about it.
The briefing by both sides indicates that Ludwig did not identify appellant as the assailant. The record shows, however, that Ludwig belatedly identified appellant as the gunman during cross-examination. Throughout direct examination, he said he could not see who the gunman was, and could only say he saw “a Black guy with a gun.” He referred to the assailant throughout direct examination as “the gunman.” In the middle of cross-examination, he suddenly testified that he realized after the incident that the gunman was appellant, with whom he had once played dominoes. In his opinion, appellant was “very intoxicated” that night.
That unusual portion of cross-examination was:
Ludwig testified to these events: He walked out of the apartment onto the balcony, looked down into the courtyard, and saw Moore and “a Black guy with a gun.” Moore was “backpedaling, one foot in front of the other but backwards,” and saying, “Whoa, whoa, whoa.” He backed up to a wall. The gunman held Moore against the wall with one arm and placed the pistol between his eyes. Ludwig decided to assist Moore. He had walked five or six apartments away from his own apartment. He said “[h]ey” twice and leaned over the balcony. The gunman attempted to shoot Moore. Moore told Ludwig that it was “not worth it” to get involved. Moore was saying calming words to the gunman like: “You don’t know me. You don’t know what I am about. Do you know who I am?” The gunman kept “fiddling” with the gun, “racking the chamber back and forth,” “or . . . the slide back and forth.” Ludwig walked back to Anthony, who had stayed near the apartment, and told her that the man had a gun. She dialed 911 and told the operator what was happening.
Ludwig’s testimony continued: As the gun had not fired a bullet, he decided it was not a real gun. From upstairs on the balcony, he yelled to Moore, “It is fake. Just bomb on [attack] this fool.” The gunman turned and walked along the downstairs courtyard until he was within eight or nine feet of Ludwig. Ludwig still thought the gun was not real. He said something like, “What’s your problem? Calm down. Do you have some of that liquid courage?” The gunman pointed the gun up toward Ludwig and said, “You don’t know me, fool. You want some too?” He pulled the trigger. Ludwig heard the hammer drop and a clicking sound, but nothing came out of the gun. The gunman “fiddled” with it. The clip fell out. He bent over, picked up the clip, put it back in the gun, and racked the gun rapidly. Ludwig now realized that the gun was real. The gunman repeated, “You want some[.] You don’t know me.” He pulled the trigger a second time. Nothing came out. Ludwig again heard the hammer drop and a clicking noise. The gunman repeatedly racked the gun. He appeared “frustrated and confused.” His expression was “mean and aggressive.”
Ludwig walked back to his apartment, where Anthony was on the telephone with the 911 operator. Ludwig saw the gunman walk back to Moore, who had remained downstairs without moving. The gunman again pinned Moore to the wall and pointed the gun at him. Moore again tried to calm the gunman, by saying: “It is all right. We can talk about this. It is a mix up, a false identity.” The gunman kept saying, “You don’t know me. You don’t know what I am about. You think I am playing.”
Anthony told the 911 operator that “a big Black guy” she did not know was downstairs at her apartment complex, threatening her friend with a gun. The man was pulling out and cocking the weapon, and she could hear it being racked. She had seen the same man about five minutes earlier when he tried to get into her car.
At that point, Officer Lance and several other officers arrived in the courtyard in response to the 911 call. Lance heard a whistle from Ludwig and saw Anthony and Ludwig crouched on the upstairs balcony. They pointed down toward the stairs. Lance looked there and saw the gunman, whom he identified at the trial as appellant. Appellant was standing three feet from Moore, pointing a gun at Moore’s chest while pinning him to the wall. Moore was holding his hands at waist level in a nonthreatening way. Lance said, “Long Beach Police. Drop the gun.” Appellant put the gun under an exterior air conditioner and started to walk away. The officers arrested him and recovered the gun. Its safety was on. The magazine was partly in it. There was live ammunition in the magazine and a live round in the chamber.
Officer Shalenan Benson also responded immediately to the 911 call. Benson saw appellant with Moore, heard Officer Lance order appellant to put the gun down, and saw appellant place the gun on the ground. In Benson’s opinion, appellant had sufficient time to turn on the gun’s safety with his thumb before he set it down.
From her spot near the apartment, Anthony had been unable to see details about the man who was with Moore, but she could hear the gun being racked. After appellant was arrested, Anthony realized that he was the man who had been in the courtyard with Moore and who had tried to enter her car.
Officer Lance interviewed appellant following the arrest. Appellant showed signs of alcohol intoxication, including “bloodshot watery eyes,” “the odor of an alcoholic beverage, [and] slurred speech.” He refused to take a blood alcohol test. After waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436, he said that “he had nothing to do with it.” He repeatedly denied that he ever had a gun, even though Lance told him that Lance himself had seen him pointing the gun.
A firearms expert testified that the gun was an operable semiautomatic pistol with an external safety that could be flipped off and on with a thumb. The magazine could hold up to 10 cartridges. If the safety was in place and the magazine was in the gun, releasing the slide would cause a cartridge to enter the chamber, but pulling the trigger would not cause the gun to fire, as the safety would prevent the hammer from striking the firing pin. With the safety in place and a full magazine, a person could rack the gun and pull the slide back as many as 10 times without firing a bullet. If the safety was on and the magazine was not properly in place, the slide could be pulled back, but a bullet would not enter the chamber.
It was stipulated that appellant had previously been convicted of a felony for the purpose of count 2, felon in possession of a firearm.
There also was evidence that, after the incident, two men who identified themselves as appellant’s brothers attempted to dissuade Anthony and Ludwig from testifying.
ii. Defense Evidence
Appellant testified that he was a training coach for “Long John’s KFC” restaurants. Earlier on the night of the incident, he attended a celebration for management staff. During the celebration, between 8:00 and 9:00 p.m., he ate dinner and drank two or three glasses of wine. He did not feel intoxicated and felt that he could drive home safely. Later that evening, while at home, he drank two or three more glasses of wine.
Although several prosecution witnesses thought appellant was intoxicated, appellant testified that that he was not intoxicated. When instructions were discussed, defense counsel said the defense was not relying on intoxication based on appellant’s testimony. The trial court later decided to instruct on voluntary intoxication, out of an abundance of caution, at the prosecutor’s request. It gave a modified version of CALCRIM No. 3426, which told the jury that evidence of voluntary intoxication could be considered on the issue of specific intent to kill. The jury’s guilty verdict shows that it found against appellant on that issue.
Appellant further testified that he was lying in bed in the early morning hours when the car alarm device on his nightstand started to beep. That sound meant someone was trying to break into his car. His car had previously been burglarized twice in the parking area, resulting in the loss of the car’s rims and items of property inside the car. He looked outside and saw Moore trying to enter his car. He put on his shoes, grabbed the gun and clip of ammunition, and went downstairs to frighten Moore, so that Moore would stay away from his car. He walked around with the gun in his hand but did not point it at anyone and did not intend to harm anyone. He saw Wilson outside. He followed Moore through the parking area, caught up with him at the staircase, and asked him why he tried to get into the car. Moore denied doing that. Appellant put the clip into the gun, racked it, and pulled the trigger, but the safety was in place the entire time. He had previously had friendly relations with Moore, Ludwig, and Wilson.
The prosecutor later argued to the jury that appellant did not tell anyone that Moore tried to break into his car until after he learned that Moore had a prior conviction for car theft.
On cross-examination, appellant admitted that he had a prior conviction for selling marijuana and did not tell the police he saw Moore trying to break into his car.
B. Analysis
Appellant’s argument on sufficiency of the evidence utilizes his testimony as the actual facts. The jury rejected that version of the facts when it found him guilty. In reviewing his claim, we must decide “‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Catlin (2001) 26 Cal.4th 81, 139, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) Applying that test, we find sufficient evidence for the two counts of premeditated attempted murder, as appellant’s self-serving testimony was contradicted by all the other witnesses, including Wilson, Ludwig, Moore (in his pretrial statement), Anthony, and Police Officers Lance and Benson. The prosecution conclusively established that, over a period of time, while standing close to Moore and Ludwig, appellant made determined and repeated attempts to shoot them, which were thwarted only because the clip was not in the gun properly or its safety was on.
2. CALCRIM No. 371
The modified version of CALCRIM No. 371 the jury received stated: “If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of his guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person’s actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself.”
Appellant contends that the instruction should not have been given because there was no evidence that he authorized dissuasion of Ludwig and Anthony by two men who claimed to be his brothers.
A. The Record Regarding Efforts to Dissuade Witnesses
At the trial, Ludwig testified that no one threatened him prior to the preliminary hearing, and he did not recall if anyone ever offered him money. He also said he did not recall whether he told the entire truth when he testified at a preliminary hearing on April 3, 2006.
According to Officer Benson, Ludwig testified at that preliminary hearing that no one pointed a gun at him or Moore. That testimony was very different from what Ludwig had previously told the police.
After the preliminary hearing, Anthony approached Officer Benson and the prosecutor at the courthouse. She complained that she felt threatened, as appellant’s family members had been contacting her and Ludwig.
On April 9, 2006, a few days after the preliminary hearing, Officer Lance went to Ludwig’s and Anthony’s apartment to investigate Anthony’s complaint. Ludwig was home, but Anthony was away. At the trial, Ludwig denied that dissuasion had occurred, but Lance testified that Ludwig told him about these efforts at dissuasion during the April 9 interview:
(1) Prior to the preliminary hearing, an African-American male carrying a machete came to the door of Ludwig’s apartment and identified himself as appellant’s brother, Ryan. Ludwig refused to speak to Ryan unless the machete was put down. After Ryan did that, Ludwig opened the door. He told Ryan that appellant “had to answer” for trying to kill him, “and whatever the court decided would be fair judgment.” Ryan said he would investigate the truth of what Ludwig said. He told Ludwig “this was going to be a ‘G thing.’” Ludwig understood that meant the problem was a “gang thing,” so Ludwig should not discuss it with the police. The conversation made Ludwig fear that something would happen to him or his family if he testified.
(2) On the morning of the preliminary hearing, an African-American male who identified himself as appellant’s older brother came to the door of the apartment. The man offered Ludwig $1,000 immediately if he did not testify that day and another $3,000 later. When Ludwig turned down that offer, “[the] individual said he could also offer him a lifetime supply of Kentucky Fried Chicken.” Ludwig replied that he had nothing against appellant, but appellant had to answer for trying to kill him.
(3) When Ludwig went to court for the preliminary hearing, he saw both of appellant’s brothers, so he did not testify fully about the incident.
Officer Lance added that further investigation showed that appellant did have a brother named Ryan. Lance obtained a picture of Ryan but did not continue with the investigation because Ludwig did not want to press charges, and it would be difficult to proceed without his cooperation.
Several months later, on July 28, 2006, Police Detective Rocio Gonzalez met with Anthony, Ludwig, and the deputy district attorney regarding witness dissuasion. Gonzalez testified that Ludwig read and confirmed the facts in Officer Lance’s police report but was fearful of repercussions and therefore did not want appellant’s brothers to be prosecuted.
In December 2006, before testifying at the trial, Ludwig told Detective Gonzalez and the prosecutor that, due to fears for his family, he would answer any questions about threats, bribes or attempted intimidation by saying, “I do not recall.”
At the trial, Ludwig testified that he had not been threatened, but he had fears for himself and his family whenever he testified, as he lived in a high crime area where gangs where active, he had experienced trouble with the law when he was young, he knew that “nothing in this world is confidential,” and he had heard about witnesses who were killed for testifying about what they had observed.
Anthony was more willing than Ludwig to discuss prior threats. She testified: (1) About a week before the preliminary hearing, Ludwig told her that, while she was away from the apartment, appellant’s brother Ryan came to their door with a knife or a machete. (2) On the morning of the preliminary hearing, someone came to the door of the apartment, but she did not answer it. (3) While she was standing in line with Anthony outside the courthouse on the day of the preliminary hearing, appellant’s brother Ryan walked out of the courthouse, got in line behind them, and spoke to Ludwig.
When appellant testified, he said he had a younger brother named Ryan, and an older brother who was so physically handicapped that he could barely walk or talk. Appellant denied asking his family members to make threats or bribes to witnesses.
B. Analysis
Among the acceptable factors for assessing a witness’s credibility are prior consistent or inconsistent statements (Evid. Code, § 780, subds. (g) & (h)) and the witness’s “attitude toward the action in which he testifies or toward the giving of testimony.” (Id., subd. (j); see also CALCRIM No. 226.) The evidence that threats and promises had been made to Ludwig helped to explain his inconsistent statements, his reluctance to testify at the preliminary hearing, and his unwillingness to identify appellant as the gunman during direct examination at the trial. In other words, the evidence of witness dissuasion was relevant for the issue of Ludwig’s credibility. It was not, however, relevant for the purpose specified in CALCRIM No. 371, consciousness of guilt, because there was no evidence that appellant authorized the behavior of the men who purported to be his brothers. (People v. Williams (1997) 16 Cal.4th 153, 205; see also People v. Hannon (1977) 19 Cal.3d 588 (Hannon).)
Under Hannon, we also reject respondent’s assertion that the instructional issue was waived for lack of an objection below. No objection is necessary for appellate review of an instructional issue that affects the substantial rights of a defendant. (Hannon, supra, 19 Cal.3d at p. 600, citing Pen. Code, § 1259.)
In Hannon, supra, 19 Cal.3d 588, the prosecutor made an unsuccessful attempt to establish that the defense alibi witness was acting on instructions from the defendant’s counsel when the witness refused to speak to the prosecutor’s investigator. The trial court instructed: “‘Now, evidence, if there was any in this case, that the defense attempted to suppress any evidence against the defendant in any manner, may be considered by you, if you find it exists here as a circumstance tending to show a consciousness of guilt. However, such evidence is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your consideration.’” (Id. at p. 597, fn. 3.)
Hannon discussed several reasons why the instruction was erroneous. One reason was that the instruction improperly left it to the jury to decide if there was evidence to support for the instruction, which was a question of law for the trial court. (Hannon, supra, 19 Cal.3d at p. 598.) Another reason was that, even if there had been sufficient evidence that defense counsel ordered the witness not to speak to the investigator, there was no connection between that order and the defendant. “[T]he admission of evidence purporting to show suppression of evidence is erroneous absent the prerequisite of proof that the defendant was present at such an incident or proof of authorization of such illegal conduct.” (Id. at p. 600, citing People v. Weiss (1958) 50 Cal.2d 535, 554.) If the witness had been obeying an order from defense counsel, there was a basis for impeaching the witness on the ground of bias, but no basis for an instruction on consciousness of guilt. (Hannon, at pp. 601-602.) Since the evidence was inadmissible, it was error to give an instruction on it.
Similarly, here, the evidence of attempts at witness dissuasion was relevant on the issue of Ludwig’s credibility, to explain his conflicting statements, but was not relevant on the issue of consciousness of guilt, as there was no evidence that appellant knew about or authorized the threats and bribes to Ludwig. It was therefore error to instruct the jury to use the evidence for the issue of consciousness of guilt.
C. Prejudice
Although we find that CALCRIM No. 371 should not have been given, we further find that the error caused no prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The instructional error in Hannon was found prejudicial based on a very different record, as there were weaknesses in the prosecution’s evidence that meant it “was a close case.” (Hannon, supra, 19 Cal.3d at p. 603.)
Here, in contrast, there were no such weaknesses. The evidence of appellant’s guilt was overwhelming, and there were numerous reasons to discredit appellant’s version of the events based on these facts: (1) Appellant himself testified that he walked around the building holding a gun and clip, racked the gun, and pulled its trigger. He disputed only that he pointed the gun at anyone or that he tried to fire it, as he said he never pointed it and the safety was on the entire time. (2) When he testified, appellant had a motive to lie that was not present for the other witnesses. (3) Wilson, who was outside innocently looking for recyclables, and who was on friendly terms with appellant, testified that appellant pointed a gun at him. (4) Moore, in his pretrial statement to Officer Lance, and Ludwig, in his trial testimony, indicated that appellant pointed the gun at them and pulled the trigger. (5) Anthony, who remained at the apartment, corroborated Moore and Ludwig in many details both at the trial and during her 911 call. (6) Officers Lance and Benson both saw appellant pointing the gun at Moore. (7) Appellant denied to Lance that he had a gun, which showed appellant’s consciousness of guilt and willingness to prevaricate. (8) Appellant testified that he held a gun in his hand that night and did not point it, but he told Lance that he did not have a gun, which was another reason to discredit his testimony. (9) Appellant never told the police he saw Moore breaking his car, which was the reason he gave at trial for his behavior.
Our ruling that the instructional error caused no prejudice is further supported by the fact the jurors were instructed that the instructions were not necessarily applicable.
We therefore conclude that the single error of the inappropriate consciousness of guilt instruction does not justify a reversal of appellant’s conviction.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.
“Q. [By defense counsel]: And prior to that night, had you seen the individual that you saw in the courtyard?”
“A. [By Ludwig]: I didn’t see no man in the courtyard. And second, yes, as a matter of fact, I played dominoes with the man two years previous [sic]. His cousin and aunt stayed in my side of the apartments when I first moved there. But I did not connect the two that night. It wasn’t until two weeks later when his aunt had come back to visit the apartments that [I realized] who it was and the reason why [that] happened.
“Q. Did you think he was trying to kill you?
“A. Indeed I did. Him, I can’t say that. Did I think the person that was there tried to kill me, yes. Twice, even.
“Q. As you sit here today knowing -- thinking that it is him, you think that he would try to kill you?
“A. Right now?
“Q. Yeah.
“A. Because he knows now what the consequences would be like.
“Q. He never tried to kill you before, did he?
“A. No. Never. As many years as we have been there, we never exchanged a hi or bye other than one occasion. Mutual agreement between his family and two cousins. That’s where liquid courage comes in.
“Q. You refer to liquid courage. Let’s explore that. You are saying -- are you saying that he was drunk?
“A. I am saying that the individual that was there was very intoxicated, yes.”