Opinion
B292936
01-23-2020
THE PEOPLE, Plaintiff and Respondent, v. GREGORY CHEW, Defendant and Appellant.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA145535) APPEAL from a judgment of the Superior Court of Los Angeles County, Roger T. Ito, Judge. Affirmed. Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Gregory Chew of the premeditated and deliberate attempted murder of his brother Rodney Chew. Prosecution witnesses' testimony established that the brothers' aunt, Eddis Love, allowed appellant to store property at her house for some time, but recruited Rodney to assist her in removing appellant's property when appellant refused to remove it himself. Their testimony supported reasonable inferences that after confronting Love about the removal of his property, appellant -- angry because Rodney had "joined the enemy" -- confirmed Rodney was en route to Love's house, waited there for him, armed himself with a gun, hid the gun behind his back as Rodney parked nearby, fired two close-range shots into Rodney's stomach before Rodney exited the car, and fired a third shot at Rodney as he fled. Appellant claimed he fired only one, accidental shot, with a gun he had wrested from Rodney in self-defense. The jury convicted appellant, inter alia, of Rodney's attempted murder, which it found to be premeditated and deliberate. The court sentenced appellant, inter alia, to a life term on the attempted murder count (enhanced by the jury's findings of premeditation and deliberation), and imposed fines and assessments.
On appeal, appellant contends: (1) insufficient evidence of premeditation and deliberation supported the enhancement of his sentence for attempted murder; and (2) the trial court erred by imposing fines and assessments without a determination of his ability to pay.
Finding no error, we affirm.
STATEMENT OF THE CASE
The state charged appellant with willful, premeditated, and deliberate attempted murder. (Pen. Code, §§ 187, subd. (a), 664.) It alleged that appellant personally used a firearm (id., 12022.53, subd. (b)), that he intentionally discharged the firearm (id., 12022.53, subd. (c)), and that he thereby caused Rodney great bodily injury (id., § 12022.53, subd. (d)). The state further charged appellant with shooting at an occupied motor vehicle (id., § 246) and assault with a semiautomatic firearm (id., § 245, subd. (b)).
The jury convicted appellant on all counts and found true all special circumstance allegations.
The court sentenced appellant to a life term on the attempted murder count and a consecutive term of 25 years to life on the associated special circumstance allegations (in addition to consecutive three-year and six-year terms, which the court stayed, on the other counts). The court imposed a $300 restitution fine, a $40 court security fee, and a $30 criminal conviction assessment.
Appellant timely appealed.
PROCEEDINGS BELOW
A. Prosecution Case
1. The Conflict Over Appellant's Property
Eddis Love, appellant's aunt, testified that in April 2016, she gave appellant permission to store property at her house for free. He filled her back yard and the "little house" within it with his property. After a rainy season, much of the property in the yard was "corroded" or "rotting." Beginning in March 2017, Love asked appellant two or three times to remove his property. Appellant provided an excuse in response to her first request and did not respond to any subsequent request. Aided by her daughter (who testified she, too, repeatedly asked appellant to remove his property), Love prepared to remove the property.
In June 2017, appellant's brother Rodney saw appellant's property for the first time and called appellant in Love's presence, on speakerphone. Rodney told appellant he was at Love's house to help appellant remove his property, and asked what appellant wanted him to do. Appellant responded by asserting Rodney had "joined the enemy." Appellant refused to remove his property unless he was paid $3,000. Love recalled that appellant accused her of stealing his property and stated he wanted to execute her. After this phone call, Rodney started discarding appellant's damaged property and rearranging his other property.
Love testified that on the day of the shooting (August 11, 2017), appellant came to her house uninvited and, "cursing [her] out," confronted her about his property. She told him to leave. During a recorded interview Love gave to police on the day of the shooting, which was played for the jury (after Love failed to recall whether appellant said anything as he left), Love told police that appellant instructed her to "tell Rodney to make sure that this will be his last time coming over here."
2. The Shooting
Love testified that about 30 minutes after appellant exited her house, she heard him cursing and accusing someone (later revealed to be Rodney) of stealing his property. As she stood to open the door, she heard a gunshot. She heard Rodney say he had been shot and saw him running from his car toward the back of her house. She saw appellant pointing a gun toward the house and, before Rodney made it inside, heard a second gunshot.
Rodney testified appellant called him while he was en route to Love's house. Appellant told Rodney not to touch his property. Rodney asked appellant what was wrong with him and told him he was the "stupidest" brother despite being the oldest. Appellant asked Rodney when he planned to visit Love's house, and Rodney responded that he was already en route. Appellant replied that he would be waiting for Rodney.
About five minutes later, Rodney arrived at Love's house and parked behind appellant's van. As he pulled up, he noticed appellant sitting on the back of his van, with his hands behind his back. Immediately after Rodney parked his car, appellant jumped off the van and approached Rodney's car, revealing that he was holding a gun.
Appellant, who appeared angrier than Rodney had ever seen him, pointed the gun at Rodney from a distance of three or four feet, confronting him about appellant's property. After appellant thwarted Rodney's attempt to exit his car by grabbing the car door, Rodney told appellant he looked stupid with the gun. Appellant responded, "'I told you I was going to get you.'" Rodney told appellant to put the gun down and give him a fair fight.
Rodney testified he did not expect appellant to shoot him because he knew appellant to be a "fluffer," explaining, "Well, he likes to talk. So I really didn't pay him no mind, so that's why I told him [to] put [the] gun down. Like I said, I never seen this side. I ain't never seen this." As appellant acknowledges on appeal, the brothers' testimony established they "had not been in contact for many, many years."
Appellant immediately took a step toward the car, stuck the gun in the window, and shot Rodney. Rodney was seated and unarmed. He had not threatened appellant. He had not made any physical contact with appellant.
Rodney exited his car (after appellant took several steps away) and ran toward the back of Love's house, where he broke in through her back door. While running, he saw appellant racking the slide of the gun. Once inside, he saw appellant circle the house and heard him say, "'I'm going to come in there and finish you off, tough guy.'"
Rodney did not hear a gunshot as he fled.
A Los Angeles County Sheriff's Department deputy testified that appellant's gun was semi-automatic, and that a semi-automatic gun may eject live rounds if its slide is racked after firing. Another deputy, who arrested appellant at Love's house shortly after the shooting, testified that he found two live rounds near Love's gate. He also saw a bullet hole in the side of Love's house.
Appellant stipulated to the admission of Rodney's medical records, which indicated that Rodney had been shot twice in the abdomen.
B. Defense Case
Appellant was the sole defense witness. He testified that in exchange for Love's permission to store property in her back house, he paid her $2,000 and gave her the property in the back yard (which she intended to donate to charity). He visited Love's house on the day of the shooting in search of a misplaced item, but discovered his property had been removed from the back house. He confronted Love, who told him that because he had left his property there for too long, she had allowed Rodney and others to sell it. Appellant told Love he would sue her and her daughter. He called Rodney, but Rodney hung up after asking appellant what he wanted.
On cross-examination, appellant claimed the property he stored in the back house included a piano from Frank Sinatra's home, worth over $100,000, and around 150 statues of Buddha, one or more of which was worth $20,000.
About 15 minutes later, while appellant was loading remaining property into the back of his van, Rodney arrived at Love's house and drove his car into appellant, pushing appellant up onto the hood. Appellant rolled off the hood and moved to strike Rodney with his hands, but stopped when he remembered that Rodney had two bullets in his chest from prior gunshot wounds. Appellant did not have a gun. Rodney, on the other hand, had a gun in his car, which he picked up. Appellant grabbed Rodney's wrist and took the gun.
Appellant moved backward, with his hand on the gun's trigger, and his back struck the car door. The gun "automatically" fired. Appellant denied intentionally shooting Rodney. He further denied firing the gun while Rodney was fleeing or at any subsequent time. He claimed that after Rodney fled, Rodney returned to the front of Love's house, speaking with a 911 operator and holding a brick, with which he repeatedly moved toward appellant. Appellant placed the gun on Rodney's car seat to keep it from Rodney.
The arresting officer had testified that appellant was reaching into the driver's-side window of Rodney's car when the officer arrived, and that the officer found a gun on the driver's seat.
C. Closing Arguments , Verdicts , and Sentencing
The prosecutor argued appellant had a motive for attempting to kill Rodney, viz., anger at Rodney over the removal of his property. The prosecutor reviewed evidence that the attempt was planned, including evidence that: (1) appellant instructed Love to tell Rodney to ensure this would be his last visit; (2) appellant invited Rodney to meet him at Love's house, where Rodney found appellant "lying in wait" and hiding his gun; and (3) before shooting Rodney, appellant said, "Didn't I tell you I was going to get you?" The prosecutor urged the jury to find the attempted murder was premeditated and deliberate, explaining, "[T]ake the evidence in its totality. The statement that he's giving to Eddis Love. He planned to kill. This will be Rodney's last time coming over. All right? We know he took an instrument of death. Right? The gun. We know that as soon as Rodney arrives, he approaches with the gun, takes out the gun and shoots. Multiple times. And continues to point and shoot as Rodney runs away. [¶] So is it willful, premeditated, deliberate? Yes, there was a plan, an action that was executed."
Appellant's counsel urged the jury to believe appellant's testimony that he fired only accidentally, in the course of acting in self-defense. He argued, in the alternative, that even if the jury rejected appellant's account of the shooting, the prosecution had failed to disprove beyond a reasonable doubt that appellant acted in the heat of passion. In support of the heat of passion theory, he argued appellant acted "completely out of character" on the day of the shooting, reminding the jury Rodney testified he had known appellant to be a "fluffer" and had never seen appellant so angry. In rebuttal, the prosecutor argued appellant did not act in the heat of passion (or in self-defense), but instead executed "a calculated plan."
Before closing arguments, the court instructed the jury on willful, premeditated, and deliberate attempted murder and on various defense theories, including accident, self-defense, defense of property, and the heat of passion theory of attempted voluntary manslaughter. Appellant makes no contention of error in the court's instructions.
The jury convicted appellant, inter alia, of willful, premeditated, and deliberate attempted murder, for which the court sentenced appellant to a life term. The court imposed a $300 restitution fine, a $40 court security fee, and a $30 criminal conviction assessment.
DISCUSSION
Appellant contends: (1) insufficient evidence of premeditation and deliberation supported the enhancement of his sentence for attempted murder; and (2) the trial court erred by imposing fines and assessments without a determination of appellant's ability to pay.
A. Sufficiency of the Evidence of Premeditation and Deliberation
Sufficient evidence of premeditation and deliberation supported the enhancement of appellant's sentence for attempted murder. (See People v. Gonzalez (2012) 54 Cal.4th 643, 654 (Gonzalez) ["The crime of attempted murder is not divided into degrees, but the sentence can be enhanced if the attempt to kill was committed with premeditation and deliberation"].) A decision to kill is "premeditated" if considered beforehand and "deliberate" if resulting from careful thought and weighing of competing considerations. (People v. Lee (2011) 51 Cal.4th 620, 636.) The required extent of reflection may occur quickly. (Ibid.) In assessing the sufficiency of evidence of premeditation and deliberation, courts often consider three "Anderson factors": planning, motive, and manner of (attempted) killing. (People v. Shamblin (2015) 236 Cal.App.4th 1, 10 & fn. 16 (Shamblin), citing People v. Anderson (1968) 70 Cal.2d 15, 26-27; see also Gonzalez, supra, at p. 664 [applying Anderson factors to conclude beyond reasonable doubt that rational jury would have found attempted murder premeditated and deliberate].) The Anderson factors are merely guidelines. (Gonzalez, at p. 663.) Although motive is one Anderson factor, "the lack of a discernable rational motive does not preclude a conviction for first degree premeditated murder." (People v. Whisenhunt (2008) 44 Cal.4th 174, 202; accord, People v. Thomas (1992) 2 Cal.4th 489, 519 ["'A senseless, random, but premeditated, killing supports a verdict of first degree murder'"].) "In reviewing a sufficiency of evidence challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." (Gonzalez, supra, at p. 653.)
Here, a rational jury could have found beyond a reasonable doubt that appellant premeditated and deliberated his attempt to murder Rodney. Substantial evidence supported findings that appellant -- angry at Rodney for participating in the removal of appellant's property -- confirmed Rodney was en route to Love's house, waited there for him, armed himself with a gun, hid the gun behind his back as Rodney parked nearby, and fired three shots at him (two into his stomach, at point-blank range). These findings, in turn, supported findings of premeditation and deliberation. (See People v. Felix (2009) 172 Cal.App.4th 1618, 1622-1623, 1627 [sufficient evidence supported findings attempted murder was premeditated and deliberate, even disregarding defendant's threats to kill his girlfriend's stepfather, where defendant "fired two shots into [victim's] apparently occupied bedroom, after arming himself in response to his anger" over the victim's earlier failure to disclose defendant's girlfriend's location]; People v. Manriquez (2005) 37 Cal.4th 547, 577 [sufficient evidence supported findings murder was premeditated and deliberate, where, several minutes after defendant and victim engaged in verbal altercation, defendant "approached the victim, pulled a firearm from his waistband, cocked the weapon, and fired several shots to the victim's head, neck, and chest areas"].)
On appeal, appellant concedes substantial evidence supported findings that he shot Rodney twice in the stomach and that he fired another shot as Rodney fled. He suggests, however, the record was too "inconclusive" to support a jury finding that he armed himself in preparation for his meeting with Rodney. Not so. The jury was entitled to believe Rodney's testimony that appellant was armed with a gun (held hidden behind his back) upon Rodney's arrival at Love's house.
The Anderson factors support this conclusion. First, there was strong evidence of planning. After calling Rodney and ascertaining that he was en route to Love's house, appellant waited there for Rodney for at least five minutes. (Cf. People v. San Nicolas (2004) 34 Cal.4th 614, 658 [defendant's testimony that he saw victim's reflection in mirror before turning around and stabbing her was evidence of planning, as it established defendant had sufficient time to reflect].) Appellant armed himself with a gun and held it hidden behind his back as Rodney parked nearby, ensuring Rodney would leave himself vulnerable. (See, e.g., People v. Elliot (2005) 37 Cal.4th 453, 471 [inference that defendant armed himself with knife prior to accosting victim supported further inference he planned violent encounter].) Appellant also made comments suggesting a preconceived plan to kill Rodney: (1) before exiting Love's house, he expressed a desire to ensure that Rodney's visit there that day would be his last; and (2) after revealing the gun to Rodney, he remarked that he had told Rodney he would "'get'" him. (See People v. Evans (1970) 8 Cal.App.3d 152, 154-155, 157 [sufficient evidence supported premeditation and deliberation findings, where defendant mouthed "'I'm going to get you'" at his in-laws at conclusion of divorce proceeding and later approached them as they sat in car, shot them, and said, "'I told you I was going to get you'"].) Second, the manner in which appellant attempted to kill Rodney -- two close-range gunshots as Rodney sat in his car, followed by a third gunshot as Rodney fled -- supports an inference of a deliberate decision to ensure death. (See People v. Williams (2018) 23 Cal.App.5th 396, 410-411 (Williams) [manner of killing evinced deliberation, where victim suffered "two neck stabs, with an implied interval to reflect, as well as . . . blunt force trauma in different areas of the victim's body"]; People v. Brady (2010) 50 Cal.4th 547, 564-565 (Brady) [same, where defendant fired first shot at victim from close range, second shot while victim was fleeing, and final shot standing over victim's prone body, reflecting calculated design to ensure death].) Finally, the jury reasonably could find a motive for the attempted murder, viz., appellant's anger at Rodney for participating in the removal of his property. (See Williams, supra, at p. 410 [appellant's rage at collapse of his marriage evinced motive for killing his wife].)
Appellant characterizes his meeting with Rodney as "a chance encounter," but does not dispute the jury's entitlement to believe Rodney's contrary testimony that appellant confirmed Rodney's destination and waited for him there.
Even if the jury rejected all evidence of appellant's anger at Rodney, thereby eliminating the only motive appearing in the record, the planning and manner evidence was sufficient to sustain the jury's premeditation and deliberation findings. (See People v. Edwards (1991) 54 Cal.3d 787, 814 [planning and manner evidence was sufficient to support finding of premeditation and deliberation, despite court's acknowledgment that motive was "elusive" and "known only to defendant"]; cf. People v. Harris (2008) 43 Cal.4th 1269, 1277, 1286-1287 [sufficient evidence of premeditation and deliberation supported trial court's denial of motion for judgment of acquittal on first degree murder charge, despite court's acknowledgment that defendant killed stranger at donut store "without provocation"].)
Contrary to appellant's principal contention, the evidence of appellant's anger at Rodney did not compel the jury to find appellant's "rage" precluded premeditation and deliberation. Even assuming arguendo that the record supports such a finding, it also supports a contrary finding. (See Williams, supra, 23 Cal.App.5th at pp. 410-411 [jury reasonably could have found stab wounds and blunt force injuries reflected an "emotional, berserk attack," but was permitted to find they reflected premeditation and deliberation instead]; Brady, supra, 50 Cal.4th at p. 565 [similar with respect to series of gunshots].) Indeed, the strong evidence of planning permitted the jury to find that appellant premeditated and deliberated in anticipation of his own murderous rage. (See People v. Wharton (1991) 53 Cal.3d 522, 547 [even though defendant's confession "tend[ed] to paint a picture of a killing during a spontaneous and uncontrolled explosion of anger, frustration, and rage," his account of the killing was "indicative of planning activity" due to evidence he placed murder weapon near crime scene in advance, "'planning to be in a rage'"]; People v. Martinez (1987) 193 Cal.App.3d 364, 372 [sufficient evidence supported findings of premeditation and deliberation, even though "the savagery of the murder could support a finding that [the defendant] acted solely out of an uncontrollable rage," where defendant predicted girlfriend's infidelity and his murderous reaction].)
The cases on which appellant relies are distinguishable. (See People v. Boatman (2013) 221 Cal.App.4th 1253, 1267 [defendant killed victim by firing only one shot, after which he directed his brother to call 911 and otherwise behaved as if "horrified and distraught about what he had done"]; People v. Rowland (1982) 134 Cal.App.3d 1, 8-9 (Rowland) [no evidence supported findings that defendant armed himself with electrical cord -- which the court deemed "a normal object to be found in a bedroom" -- before he used it to strangle victim, or that defendant had pre-existing motive].) Appellant's reliance on Rowland is unpersuasive for the additional reason that the Rowland court's analysis of the manner of killing has arguably been undermined by subsequent caselaw. (Shamblin, supra, 236 Cal.App.4th at p. 12 [observing Rowland predated California Supreme Court precedent holding that "strangulation that takes place over several minutes affords the killer ample time to think over the consequences of his action"].)
B. Omission of Inquiry into Appellant's Ability to Pay
Appellant forfeited his due process challenge, under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), to the trial court's imposition of assessments and a restitution fine without a determination of appellant's ability to pay. As appellant acknowledges, he did not object on this ground in the trial court. We agree with our colleagues in Division Eight of this Appellate District that a failure to object in the trial court forfeits this issue on appeal. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen).) For the reasons set forth in Frandsen, we reject appellant's contentions that the issue was preserved because it is a pure question of law or because any objection before the purportedly unforeseeable ruling in Dueñas would have been futile. (See Frandsen, supra, at pp. 1153-1155.)
As the court that decided Dueñas has noted, our Supreme Court is poised to resolve a split in authority as to whether Dueñas was correctly decided, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, on the following issues: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?" (People v. Belloso (2019) 42 Cal.App.5th 647, 649 & fn. 3.) --------
Contrary to appellant's contention, the trial court's imposition of the minimum restitution fine does not materially distinguish Frandsen on the forfeiture issue. In Dueñas itself, the trial court imposed the minimum restitution fine (there, $150 for a misdemeanor conviction). (Dueñas, supra, 30 Cal.App.5th at pp. 1162, 1169.) As defense counsel did in Dueñas, appellant's counsel could have foreseen the viability of a due process challenge to the minimum restitution fine. (See Frandsen, supra, at pp. 1154-1155 [holding Dueñas "was foreseeable," and noting absence of evidence that defendant was "foreclosed from making the same request that the defendant in Dueñas made" in response to imposition of mandatory assessments].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.