Opinion
No. A122832. No. A122888.
4-15-2010
THE PEOPLE, Plaintiff and Respondent, v. JUNOR DOUGLAS, Defendant and Appellant. TTHE PEOPLE, Plaintiff and Respondent, v. MARQUIS RASHAWN DOUGLAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Defendants Junor and Marquis Douglas were jointly tried and convicted of second degree murder (Pen. Code, § 187), shooting at an inhabited dwelling (Pen. Code, § 246), discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3), and possession of a firearm by a minor (Pen. Code, § 12101, subd. (a)(1)). Marquis alone was also convicted of possession of live ammunition by a minor (Pen. Code, § 12101, subd. (b)(1)), and entered a guilty plea to one of two charged counts of attempting to dissuade a witness from testifying (Pen. Code, § 136.1, subd. (a)(2)). The jury further found that Junor committed two charged enhancements for personal use of a firearm during commission of two of the offenses. Junor received an aggregate state prison term of 70 years to life; Marquis received an aggregate state prison term of 20 years to life.
To avoid confusion, we will refer to the two defendants individually by their first names only. For the same reason, we will also refer to the witnesses and others who were present during the events by their first names only after introduction.
All further statutory references are to the Penal Code. The jury was unable to agree on a verdict on the charge against both defendants of the attempted murder, and as to that charge a mistrial was declared.
Junor argues in his appeal that his counsel rendered ineffective representation by failing to request an additional or pinpoint instruction on unreasonable self-defense, and by allowing the trial court to give the jury access to the tape recorded preliminary hearing testimony of a witness during deliberations, and the trial court erred by imposing a consecutive sentence for shooting at an inhabited dwelling and two enhancements for personal use of a firearm. We find that an unreasonable self-defense instruction was not justified by the evidence, and giving the jury the videotape of the witnesss testimony was not error. We further find that imposition of the consecutive sentence for shooting at an inhabited dwelling and the two firearm use enhancements was not error.
Marquis argues that the trial courts instructions on aiding and abetting and the natural and probable consequences doctrine were deficient, and his counsel should have objected to the prosecutors misstatement of the law during closing argument. We conclude that the aiding and abetting and the natural and probable consequences instructions were adequate, and no prosecutorial misconduct was committed that would have justified an objection by defense counsel.
We therefore affirm both judgments.
STATEMENT OF FACTS
The offenses were committed on the night of January 27, 2007, at a "sweet 16th birthday" party held for Chanel C. at her familys home in American Canyon. The party was attended by Chanels family and friends she invited. A dance floor was set up in the garage, and a DJ was hired to play music.
Chanels father Robert C., an Oakland Police Officer, formulated security arrangements for the party to "make sure there was no alcohol, no fights, and basically no crashers." Chanels brothers Robert, Randy and R., along with her cousins Brandon and Eddie Abasolo, were enlisted to screen the guests upon their arrival to verify that they were invited and to check for weapons or alcohol. Other than the "immediate family members," the guests were restricted to the garage, where the "majority of the dancing" took place.
Chanel was not acquainted with defendants and did not invite them to the party. She told her neighbor and classmate Alfonzo Reed that "he was invited," and he in turn asked defendants and another friend Davone Bracy to accompany him to the party. Marquis brought a .22-caliber revolver to the party with him. He typically carried the gun with him whenever he "went somewhere" in Vallejo "where it [sic] could be . . . some kind of altercation." He took the gun to the party and "loaded it that night" with six to eight bullets due to the "strong possibility" that someone might start a conflict that would result in shooting. When defendants, Alfonzo and Davone appeared at the party, Chanel told her brother she "thought it was okay" for all of them to "come in." The gun was left in Alfonzos car.
Defendants stayed at the party for a while, then briefly left, but returned at around 10:30 or 10:45. The party was still "packed," with a "lot of people" dancing in the garage. An argument ensued between Alfonzo and a girl he was dancing with, who twice accused him of "grabbing her ass," an accusation Alfonzo denied. He became enraged and cursed at the girl. She "got on the phone" to call someone, whereupon Alfonzo threatened to "beat her up" or "have somebody beat her up." Alfonzo thought the girl was calling some friends who live near a bridge in Vallejo, known collectively as the "Bridge Boys." Alfonzo previously had a dispute with one of the Bridge Boys, so he became "real pumped up" and "ready to fight." Junor was with Alfonzo in the garage as the conflict developed, but was not upset and told Alfonzo "to be cool." At Alfonzos request, Marquis retrieved the loaded gun from the car and placed it in his pants, under his pea coat with the barrel pointed down.
Alfonzo claimed that it was actually Junor who grabbed the girl, but Junor testified that Alfonzo "was lying" when he denied the girls accusation.
About 30 minutes later six of the Bridge Boys arrived at the party. Alfonzo remained "wild" and ready to fight them. He intentionally bumped into one of the Bridge Boys, as a challenge to fight, and received a bump and "hand sign" in return. Junor joined Alfonzo and was also "about to fight" the Bridge Boys. They "squared up" to fight when Chanel and her brother Roland along with Eddie Abasolo "rushed into the garage," pinned Alfonzo and Junor against the garage door, and told them to "break it up."
Alfonzo complied with Rolands directive to "back off," but Junor became uncooperative and enraged when Eddie held him firmly by the shirt and "didnt let him go." Eddie ordered Junor and Alfonzo to leave the party. Junor responded, "Im going to get you," and took a swing at Eddie that missed. Eddie then "head-butted" Junor in the face and pushed him out of the garage as the garage door was opened. As Junor was forced out of the garage and onto the driveway witnesses heard him repeatedly threaten to "kill" and "pop" Eddie, meaning shoot him. T.W., who arrived at the party to pick someone else up, testified at the preliminary hearing that when she asked Marquis if a fight was about to happen, he replied, "nah, I think somebody is going to get popped."
Junor skipped quickly backwards toward the bushes near the driveway to where Marquis was standing, as many of the other party guests left the garage. Junor stated to Marquis, "Hand me the piece. Im about to pop him. I dont care. Im about to do it right now." Marquis responded, "No, thats not smart." Junor placed his hands around the waistline of Marquiss pea coat and attempted to "grab something" as Marquis was "trying to walk off." Junor repeatedly demanded that Marquis give him "the strap" as the "tussle" to extract the gun continued momentarily. One witness, R., testified that Marquis assisted Junor in his effort to get the gun out of the coat, as they both "were yelling to get something out." Other witnesses thought Marquis attempted to prevent Junor from taking the gun. Junor made a "quick turn" of his body as though he jerked an object away from Marquis. After Junor took the gun, Marquis moved toward the street and a witness heard him warn Junor, " `Thats hot, meaning, not smart."
Witnesses then heard a gunshot, and observed a flash near Junors head or his hand as he stood in the driveway. Two more gunshots were fired from the same location a few seconds later. Alfonzo testified that the first and second shots were fired into the air, but the third shot was fired by Junor directly toward the house. T. also testified that she observed at least one shot fired by Junor with his hand in the air, and another shot fired as he pointed his hand at the garage. After the shots were fired, Junor and Marquis were then seen running away with a third person. The victim, Anthony Gee, fell to the ground in the garage with a fatal gunshot wound to the head.
Defendants, Davone and Alfonzo ran to the car. As Junor arrived at the car he exclaimed, "I had to blap at the niggers," meaning shoot at them. Alfonzo mentioned that they had to "get rid of that gun," so they stopped at a corner and Junor threw it "at some bushes." They drove to Davones house, where Junor removed his shirt and washed his hands and arms.
The next morning they learned that Gee had been shot and killed. Junor seemed "shocked." He expressed remorse and stated, "I wasnt even trying to shoot that boy. I was trying to shoot the nigga that head butted me." Junor retrieved the gun from the bushes where it had been "stashed," and said "he was going to have his uncle destroy it."
Junor acknowledged that he shot the victim, but claimed that the shooting occurred accidentally, in part due to a malfunction of the gun. He testified in his defense that after eight of the Bridge Boys arrived at the party Alfonzo became "worried" and requested that they "get the gun" from the car. Marquis "got the gun out of the car" and brought it back to the party. A disturbance then commenced between Alfonzo and Emil, one of the Bridge Boys. Junor thought the Bridge Boys were about to "jump" Alfonzo, so he "ran over there to go help." As Junor approached Alfonzo, he was grabbed by Eddie, slammed into the garage door, and "headbutted." Junor punched Eddie and said, "let me go or Im going to pop you." When he said that, he did not intend to shoot Eddie, but rather merely wanted to be released.
According to Junor, Alfonzo then yelled that they should get the gun. Junor also asked Marquis for the gun to "be able to scare the Bridge" Boys, who outnumbered them. Marquis told Junor to "be cool" and backed away as Junor reached for the gun. Junor took the gun from Marquiss pants, and shot it into the air twice to scare the Bridge Boys. He tried to shoot into the air again, but the trigger of the gun jammed. He "brought the gun back down," and "tried to turn the cylinder, and the gun went off." After the third shot discharged, Junor turned and ran to the car. He did not know until the next morning that someone had been shot. Junor acknowledged that in the days that followed the shooting he and Alfonzo fabricated a story to tell the police that "somebody started shooting" at them when they came out of the garage. He lied to the police during interviews because he was "scared."
Marquis testified that he bought the gun for protection a few months before the shooting, and kept it along with ammunition in a shoe box under a bed. He brought the gun to the party because he thought other people there might be armed and "look for trouble," as was typical in Vallejo and American Canyon.
When they first arrived at Chanels party Marquis left the gun under the drivers seat of Alfonzos car. In the garage, Marquis observed Alfonzo touch the girl he was dancing with "in some way," which precipitated an argument between them. He heard Alfonzo threaten to "pop her, and a bunch of other stuff." The girl said "she was going to call her cousins." A short while later, Alfonzo approached Marquis to declare that he was "going to get the gun" from the car. Marquis replied, "No, Im going to get it." Alfonzo had threatened to shoot someone in the past during a dispute, so Marquis did not want him to have possession of the gun.
With Marquis in possession of the gun under his buttoned coat, Alfonzo and others began yelling in the garage. Marquis "was afraid of . . . one of the Bridge Boys trying to attack" him, so he left the garage. Junor and Alfonzo then approached him; both of them were yelling and Junor said, "Give me the thang," referring to the gun. Junor reached for the gun, but Marquis also "got a hold of it." Marquis testified that he was "saying no" as they "struggled over" the gun. Marquis "tried to do all [he] could" to keep Junor from getting the gun, but Junor grabbed it and ran behind a car parked in the driveway. Junor fired two shots into the air as Alfonzo stood next to him, yelling. Marquis observed that as Junor fired the third shot his arm was pointed at the garage. Junor and Alfonzo started running to the car, so Marquis ran after them.
DISCUSSION
THE APPEAL OF JUNOR
I. The Instruction on Unreasonable Self-Defense .
Junor claims that his counsel was incompetent for failing to request amplification of the instructions on unreasonable or imperfect self-defense. As requested by the defense, the trial court gave standard instructions on first and second degree murder, and voluntary manslaughter based on heat of passion and unreasonable self-defense, along with instructions on involuntary manslaughter. Defendant argues that his counsel should have requested an additional instruction in the terms of CALJIC No 8.40 to specifically advise the jury that if the killing occurred "out of an unreasonable belief in the need for self-defense against the Bridge Boys," and he "acted in a way that consciously disregarded danger to human life, he could be found guilty of voluntary manslaughter rather than murder, even if he did not intend to kill anyone. (See People v. Blakely (2000) 23 Cal.4th 82, 92.)" He maintains that without the additional pinpoint voluntary manslaughter instruction the jury was left without a proper instructional basis for finding that if he killed the victim with a conscious disregard for life rather than intentionally, and acted in an unreasonable belief in the need to defend himself, he was guilty of voluntary manslaughter, not murder. He asserts that counsels "ineffective assistance was sufficiently serious as to undermine confidence in the outcome as to the charge of murder," and thus requires reversal of the judgment.
In People v. Blakeley (Blakeley) and the companion case of People v. Lasko (2000) 23 Cal.4th 101, (Lasko ), the California Supreme Court departed from existing authority — that held intent to kill was an essential element of voluntary manslaughter — and concluded that voluntary manslaughter may also occur when one kills without intent to kill but with a conscious disregard for life. "Following the decisions in Blakeley and Lasko, former CALJIC No. 8.40 was revised to include as a required element of the crime of voluntary manslaughter proof that `[t]he perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life . . . . (CALJIC No. 8.40 (2001 rev.).)" (People v. Parras (2007) 152 Cal.App.4th 219, 224.) Language similar to former CALJIC No. 8.40 now appears in CALCRIM No. 572, which defines voluntary manslaughter when murder is not charged.
The principles that govern defendants claim of "constitutionally inadequate representation are settled." (In re Lucas (2004) 33 Cal.4th 682, 721.) "To establish a claim of inadequate assistance, a defendant must show counsels representation was `deficient in that it `fell below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms. [Citations.] In addition, a defendant is required to show he or she was prejudiced by counsels deficient representation. [Citations.] In determining prejudice, we inquire whether there is a reasonable probability that, but for counsels deficiencies, the result would have been more favorable to the defendant." (People v. Frye (1998) 18 Cal.4th 894, 979.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215; see also In re Jones (1996) 13 Cal.4th 552, 561.) Further, " `When . . . the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsels reasons. . . . Because the appellate record ordinarily does not show the reasons for defense counsels actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal. [Citation.]" (People v. Lucero (2000) 23 Cal.4th 692, 728-729.)
We find that Junor has failed to establish either deficient representation by counsel or prejudice as a result of the failure to request an additional instruction that explicitly associated unreasonable self-defense with a killing committed unintentionally but in conscious disregard for life. In fact, the simple truth is that the evidence before us does not support any instruction on unreasonable self-defense.
"Upon proper request, a defendant has a right to an instruction pinpointing the theory of defense." (People v. Randolph (1993) 20 Cal.App.4th 1836, 1841.) "A defendant is entitled to [a requested] instruction . . . on any defense for which substantial evidence exists. [Citations.] However, the trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense." (People v. Miceli (2002) 104 Cal.App.4th 256, 267; see also People v. Moore (2002) 96 Cal.App.4th 1105, 1116.) "A trial court has no duty to instruct the jury on a defense — even at the defendants request — unless the defense is supported by substantial evidence." (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.)
"In determining whether a requested instruction must be given, the trial court must first evaluate the evidence to determine if the theory proffered by the defendant is supported by substantial evidence. Only if the theory is supported by substantial evidence is the refusal to give a requested instruction erroneous." (People v. Randolph, supra, 20 Cal.App.4th 1836, 1841.) "[A] trial judge must only give those instructions which are supported by substantial evidence," and "has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence." (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.)
"`"Substantial evidence is evidence sufficient to `deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive." [Citation.] [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1008; see also People v. Marshall (1997) 15 Cal.4th 1, 39; People v. Silvey (1997) 58 Cal.App.4th 1320, 1335.) " ` "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." [Citations.] [Citation.] Even so, the test is not whether any evidence is presented, no matter how weak. Instead, the jury must be instructed when there is evidence that `deserve[s] consideration by the jury, i.e., "evidence from which a jury composed of reasonable [people] could have concluded" that the specific facts supporting the instruction existed. [Citations.]" (People v. Petznick (2003) 114 Cal.App.4th 663, 677.) "We review this issue as one of law." (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1017.)
Here, Junors primary defense was not a theory of self-defense, but rather that he shot the victim accidentally when the gun jammed while he was firing into the air, an act that was neither intentional nor committed with "disregard of the consequences." Junor also secondarily claimed that he fired the gun in anger "at the head butt" and out of fear "he was about to be jumped" by the "Bridge Boys," but critically, he neither argued nor presented any evidence that the shooting was in response to an imminent threat of harm from anyone. In fact, counsel acknowledged during closing argument that "this is not imperfect self-defense," and Junor "didnt have a belief in imminent peril thats sufficient to satisfy the law." The essential theory of the defense was that Junors fear of the Bridge Boys and "misplaced desire to defend himself" set "in motion" a shooting that was an accidental rather than intentional act. An instruction on unreasonable self-defense was not entirely consistent with defendants theory of the case. (See People v. Maury (2003) 30 Cal.4th 342, 425; People v. Tapia (1994) 25 Cal.App.4th 984, 1024-1025.)
More importantly, self-defense, whether perfect or imperfect, also requires evidence that the defendant " `actually believes he must defend himself from imminent danger of death or great bodily injury " when the killing was committed. (People v. Randle (2005) 35 Cal.4th 987, 994, citation omitted.) The California Supreme Court has repeatedly cautioned that the doctrine of imperfect self-defense "is `narrow and will apply only when the defendant has an actual belief in the need for self-defense and only when the defendant fears immediate harm that ` " `must be instantly dealt with. " [Citation.]" (People v. Rogers (2006) 39 Cal.4th 826, 883, italics added.) The defendant must actually believe that the threat of physical harm is "imminent." (People v. Flannel (1979) 25 Cal.3d 668, 674; People v. Hayes (2004) 120 Cal.App.4th 796, 803; People v. De Leon (1992) 10 Cal.App.4th 815, 824; People v. Glenn (1991) 229 Cal.App.3d 1461, 1467; People v. Uriarte (1990) 223 Cal.App.3d 192, 197; People v. Aris (1989) 215 Cal.App.3d 1178, 1186.) "Imminence is a critical component" of a theory of self-defense. (People v. Humphrey (1996) 13 Cal.4th 1073, 1094.)
Evidence that Junor faced an imminent threat of harm when he fired the shots is entirely absent from the record. Both he and Alfonzo expressed some generalized fear of the Bridge Boys, who may have arrived at the party in response to Alfonzos argument with a girl. They exchanged "hand signs" and "mugging" with one or two of the Bridge Boys, but nothing further happened. The shooting was not in response to any act or threat by the Bridge Boys, but instead was directed exclusively at the chaperone who head-butted Junor and threw him out of the garage. No testimony was offered that after Junor was told to leave the party anyone threatened him in any way. He was certainly angry and may have also been in an indistinctly frightened state, but he did not fire the shots in response to any imminent threat of harm; there was none.
Our high court has declared that the unreasonable self-defense doctrine " `requires without exception that the defendant must have had an actual belief in the need for self-defense, "and " `also emphasize[d] what should be obvious. Fear of future harm — no matter how great the fear and no matter how great the likelihood of the harm — will not suffice. The defendants fear must be of imminent danger to life or great bodily injury. " `[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with. . . ." . . . [Citations.]" (People v. Manriquez (2005) 37 Cal.4th 547, 581; see also People v. Minifie (1996) 13 Cal.4th 1055, 1068.)
As we view the evidence in the present case, no instruction on unreasonable self-defense, let alone a supplemental one, was necessary or even proper. "[A] trial court `is never required to give any instructions that would have had no foundation in the evidence or in any theory on which the case was tried. [Citation.]" (People v. Tapia, supra, 25 Cal.App.4th 984, 1024-1025.) " `[U]nsupported theories should not be presented to the jury. [Citation.]" (People v. Marshall, supra, 15 Cal.4th 1, 40.) The evidence at its core indicates that Junor did not perceive an imminent threat of harm from anyone, and thus an essential element is missing from his claim that he could not be convicted of murder because he acted upon an unreasonable belief in the need to do so. (People v. Stitely (2005) 35 Cal.4th 514, 551-552.) With the record devoid of substantial evidence that Junor acted in response to imminent danger to life or great bodily injury to himself or anyone else, a self-defense instruction was inappropriate. (See People v. Rogers, supra, 39 Cal.4th 826, 883-884; People v. Manriquez, supra, 37 Cal.4th 547, 581-582; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270; People v. Strozier (1993) 20 Cal.App.4th 55, 63.) The trial court was not required to give an "instruction when, as here, no credible evidence supported it." (People v. Welch (1999) 20 Cal.4th 701, 757.) Thus, defense counsel clearly cannot be scolded for failing to request a clarification of the self-defense instruction that had no basis in the evidence presented, and defendant did not suffer any prejudice as a result of the omission of a CALJIC No 8.40 instruction. (People v. Maury, supra, 30 Cal.4th 342, 416.)
We further conclude that even if adequate evidence supported an unreasonable self-defense instruction, the additional explanatory pinpoint instruction suggested by defendant on appeal was not required. Essentially the same argument was made and rejected in People v. Genovese (2008) 168 Cal.App.4th 817, 831-832. The defendant in Genovese contended that the trial court erred by failing to "inform the jurors they could find him guilty of voluntary manslaughter if they found that he, while acting in imperfect defense of another (or sudden quarrel or heat of passion), killed either intentionally or unintentionally with conscious disregard for human life." (Id. at p. 831.) Genoveses claim was that the courts failure to expressly instruct "that intent to kill or conscious disregard for life is an essential element of voluntary manslaughter, in accordance with Blakeley and Lasko," left the jurors "with no way to apply defendants proffered defense to the elements of express or implied malice to ascertain whether these elements had been proven beyond a reasonable doubt." (Ibid.) The court held that "although the jury was not expressly instructed in that manner, the jury was instructed," as here, with the standard instruction that a " `killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect defense of another " or " `killed someone because of a sudden quarrel or in the heat of passion. " (Ibid.) To the specific claim that "since no instruction tracking former CALJIC No. 8.40 was given in this case, once the jury determined that express or implied malice was present in defendants case, they were given no instructions telling them that even if they found this to be true, they could still find defendant guilty of voluntary manslaughter if they believed he acted in heat of passion or in reasonable/unreasonable defense of [another]," the court responded: "But defendants argument is defeated by the plain language of the instructions as given to the jury, that `[a] killing that would otherwise be murder is reduced to voluntary manslaughter if defendant acted in imperfect defense of another or sudden quarrel or heat of passion. [¶] We conclude there was no error in the jury instructions on voluntary manslaughter." (Id. at p. 832.) No supplemental instruction on unreasonable self-defense was justified, and Junors trial counsel was not incompetent for failing to request one.
Our conclusion implies that the instruction on unreasonable self-defense was error. That is so, but the error inured strictly to Junors benefit, and was not in the least prejudicial to him. He does not argue otherwise in this appeal.
II. The Videotape of T.W.s Preliminary Hearing Testimony.
In his supplemental brief Junor challenges his "counsels failure to object to a videotape of the preliminary hearing testimony of T.W., a key prosecution witness," from being taken into the jury room. While defense counsel objected unsuccessfully to the admission of the videotape into evidence, Junor complains that counsel should have nevertheless objected to "[a]llowing the jury to have access to it during deliberations." He maintains that the videotape provided the jury with a much more assured and positive view of T. as a witness than did her "her relatively innocuous courtroom testimony," and therefore counsel should not have "let the videotape go to the jury room."
As a threshold matter we find that defendant has not discounted a tactical reason for counsels failure to object to the jurys consideration of the videotape during deliberations. After the evidence was admitted over defense objection, counsel may have decided that defendant would benefit from the jurys access to the videotape in the jury room. We do not know, but the critical consideration is that we have no way of discerning from the record if counsels actions were the result of ignorance or based on an informed tactical decision. We cannot speculate, and without a definitive indication in the record before us of inexcusable ignorance or oversight by defendants attorney rather than strategic considerations as the basis for the lack of an objection, we cannot find inadequate assistance of counsel on appeal. (People v. Hart (1999) 20 Cal.4th 546, 630; People v. Williams, supra, 16 Cal.4th 153, 262; People v. Montiel (1993) 5 Cal.4th 877, 921; People v. Aubrey (1999) 70 Cal.App.4th 1088, 1105.)
In any event, we find that an objection to consideration of the videotape by the jury would not have been successful. Junor brings to our attention opinions from other jurisdictions that have found error in giving the jury access to videotaped testimony during deliberations. He particularly relies on Young v. State (Fla. 1994) 645 So.2d 965, 966-967, where the court decided pursuant to a Florida statute, Florida Rule of Criminal Procedure 3.400, which grants the trial court discretion to permit the jury upon retiring for deliberation to take to the jury room "all things received in evidence other than depositions," that, "If depositions read into evidence in lieu of live testimony cannot be taken to the jury room, there is all the more reason to preclude video presentations of live testimony from being taken to the jury room. Therefore, we have no doubt that trial testimony presented by way of videotape should not be permitted in the jury room."
In California, the established law is to the contrary. Penal Code section 1137 specifies that the jury may take into the jury room "all papers (except depositions) which have been received as evidence in the cause, or copies of such public records or private documents given in evidence as ought not, in the opinion of the court, to be taken from the person having them in possession." Transcripts of testimony or interviews given by witnesses which have been admitted in evidence may be given to the jury for consideration during deliberations. (People v. Fujita (1974) 43 Cal.App.3d 454, 473; People v. Beverly (1965) 233 Cal.App.2d 702, 718.) And in People v. Douglas (1977) 66 Cal.App.3d 998, 1001, the jury was allowed to listen during deliberations to a tape recording of the entry into defendants residence by an undercover police officer to make a purchase of heroin. In response to the defendants claim that the tape recording was improperly given to the jury, the court concluded: "The tape recording had been admitted into evidence without objection. `[T]he law allows the jury to take with them into the jury room all exhibits except depositions. [Citations.]" (Id. at p. 1006.) Here, the DVD of T.s preliminary hearing testimony was admitted in evidence and played for the jury at trial. Granting the jury the opportunity during deliberations to review her appearance and demeanor while she testified was a proper exercise of the trial courts discretion, and not in the least unfair to defendant. (See People v. Medina (1995) 11 Cal.4th 694, 754; People v. Williams (1960) 187 Cal.App.2d 355, 367.) Counsel cannot be found incompetent for failing to make an objection that would have been unavailing. (People v. Mendoza (2000) 24 Cal.4th 130, 171.)
Section 1137 reads in full: "Upon retiring for deliberation, the jury may take with them all papers (except depositions) which have been received as evidence in the cause, or copies of such public records or private documents given in evidence as ought not, in the opinion of the court, to be taken from the person having them in possession. They may also take with them the written instructions given, and notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person. The court shall provide for the custody and safekeeping of such items."
III. The Imposition of a Consecutive Sentence for Shooting at an Inhabited Dwelling .
We turn to Junors contention that the trial court erred by imposing a five-year consecutive sentence for the conviction of shooting at an inhabited dwelling (§ 246), in addition to the sentence for second degree murder. He claims that the two crimes were "incidental to a single criminal intent," and therefore multiple punishment was precluded by section 654.
The double jeopardy clause of the Fifth Amendment and Penal Code section 654 forbid multiple punishment for the same offense. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Wader (1993) 5 Cal.4th 610, 670.) Penal Code section 654 provides in pertinent part that "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one . . . ." (See also People v. Kramer (2002) 29 Cal.4th 720, 722; People v. Hall (2000) 83 Cal.App.4th 1084, 1088.) The proscription against double punishment in section 654 is applicable where the defendants course of conduct violated more than one statute but nevertheless comprised a single act or indivisible transaction. (People v. Perez (1979) 23 Cal.3d 545, 551; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; People v. Williams (1992) 9 Cal.App.4th 1465, 1473; People v. Barker (1986) 182 Cal.App.3d 921, 941.) "On the other hand, section 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other. In that case, `the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. . . . [Citation.]" (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
"The divisibility of a course of conduct depends upon the intent and objective of the defendant. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendants criminal intent and objective were single or multiple. Each case must be determined on its own facts." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
"`The question of whether the acts of which defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendants intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.]" (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657; see also People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Avalos, supra, 47 Cal.App.4th 1569, 1583; People v. Williams, supra, 9 Cal.App.4th 1465, 1473.) "We review the trial courts findings `in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [Citation.]" (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
The evidence supports a finding that Junors acts of grabbing the gun from his brother and firing twice into the air, followed by another shot at the garage, may have been part of a transaction that had two distinct objectives: to scare the Bridge Boys or others with whom he just had an altercation with the first two shots in the air; and to frighten or kill the chaperone who head-butted him and expelled him from the party with the final shot at the garage.
We further find that the imposition of multiple sentences in the present case was authorized on another ground. Under one of two established exceptions to the prohibition against multiple punishment delineated in 654, "when multiple victims are targeted by a single episode of violent criminal conduct, the perpetrator may be punished separately for the crimes committed against each victim." (People v. Davey (2005) 133 Cal.App.4th 384, 390.) "Under the multiple victim exception, ` "`even though a defendant entertains but a single principal objective during an indivisible course of conduct, he [or she] may be convicted and punished for each crime of violence committed against a different victim. [Citations.]" [Citation.]" (People v. Le (2006) 136 Cal.App.4th 925, 932.) " ` "[W]hether a crime constitutes an act of violence that qualifies for the multiple-victim exception to section 654 depends upon whether the crime . . . is defined to proscribe an act of violence against the person." [Citation.]" (People v. Martin (2005) 133 Cal.App.4th 776, 782.)
The offense of shooting at an occupied building is a violent crime fundamentally directed against the person, even if the shots are fired for the purpose of frightening rather than killing the occupants. (See People v. Martin, supra, 133 Cal.App.4th 776, 782-783.) The crime was also directed at multiple victims — all of the occupants of the garage — even if Junor only intended to hit one of them. People v. Felix (2009) 172 Cal.App.4th 1618, 1630, is a dispositive case on the issue before us. In Felix, trial court imposed concurrent sentences for attempted murder and shooting at an inhabited dwelling. Relying on the prior decision in People v. Anderson (1990) 221 Cal.App.3d 331, 338-339, the court in Felix concluded that the houseguests were victimized by the shooting into the dwelling although they were "not named victims in any other count. It follows that the trial court properly declined to stay the sentence on count 2 (shooting at an inhabited dwelling) because it is governed by the multiple victim exception to Penal Code section 654." (Felix, supra, at p. 1631; see also People v. Garcia (1995) 32 Cal.App.4th 1756.) Similarly, occupants of the garage in the present case were not the victims of the murder or attempted murder charges. The consecutive sentence for the conviction of shooting at an inhabited dwelling did not violate section 654.
In Garcia, the trial court did not violate the prohibition against multiple punishment (Pen. Code, § 654) when it imposed unstayed sentences on defendant for both shooting at an occupied motor vehicle containing four persons (Pen. Code, § 246), and for assault with a firearm on Verdin, the vehicles driver (Pen. Code, § 245, subd. (a)(2)). (Garcia, supra, 32 Cal.App.4th 1756, 1780.) The court observed: "The multiple victim exception, simply stated, permits one unstayed sentence per victim of all the violent crimes the defendant commits incidental to a single criminal intent. Where one person is the victim of both a shooting at an occupied motor vehicle and a simultaneous assault, the trial court can impose an unstayed sentence for one or the other, but not for both. [Citations.] We believe this is equally true where the same persons are the victims of a shooting at an occupied motor vehicle and of simultaneous assaults: the trial court can impose an unstayed sentence for the shooting, based on any given victim, or for the assault on that victim, but not for both." (Id. at p. 1784, italics omitted.) The court then concluded: "[D]efendant was properly punished both for the crime of shooting at an occupied motor vehicle, the victims of which were Verdin and three others, and for the assault on Verdin, because each crime involved at least one different victim. No violation of section 654 appears." (Id. at p. 1785.)
IV. The Imposition of Two Enhancements for Personal Discharge of a Firearm .
Junors final contention is that the imposition of two section 12022.53 enhancements for personal use of a firearm associated with the convictions for murder and shooting at an occupied building was error. He argues that with the imposition of consecutive sentences he was "essentially punished twice for the same act" of shooting into a crowd, and then "his punishment was enhanced twice for the very same act." He complains that he has received "constitutionally impermissible double punishment" that "exceeds the legislative power" and "violates constitutional principles." He asks us to stay the "second enhancement imposed pursuant to section 12022.53, subdivision (d)."
He does not in detail specify the constitutional provisions violated by the sentence, other than to vaguely mention "the California Constitutional ban on cruel and unusual punishment" that requires infliction of punishment "proportional to [the] offense committed."
We commence our analysis of Junors claim of impermissible double punishment with reference to the California Supreme Courts opinion in People v. Palacios (2007) 41 Cal.4th 720, 726-728 (Palacios), which held that the language of section 12022.53 created an exception to section 654. In Palacios, although the "defendant fired one shot at a single victim," he thereby committed multiple offenses that qualified for the addition of a section 12022.53, subdivision (d) enhancement of 25 years to life for each of his three convictions — attempted murder and the two kidnapping convictions. (Id. at pp. 724, 727.) The court reviewed the language of that statute, and concluded that "in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654." (Id. at pp. 727-728.) Quoting with approval the opinion in People v. Hutchins (2001) 90 Cal.App.4th 1308, the court in Palacios held that by including the phrase " `[n]otwithstanding any other provision of law " in subdivision (d) of section 12022.53, " `the Legislature intended to mandate the imposition of substantially increased penalties where one of a number of crimes, including homicide, was committed by the use of a firearm. In so doing, the express language of the statute indicates the Legislatures intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties. (Hutchins, at p. 1313.) Thus, `where imposition of a firearms use enhancement is made mandatory notwithstanding other sentencing laws and statutes, it is error to apply section 654 to stay imposition of such an enhancement. [Citations.]" (Id. at pp 732-733, italics omitted.)
The court in Palacios also rejected the defendants entreaty that "the Legislature could not have intended a `draconian scheme whereby one injury could result in as many 25-years-to-life enhancements as there were qualifying offenses. He relies on the Court of Appeals reasoning that the punishment should be commensurate with defendants conduct rather than `the fact the aggravated kidnappings were technically ongoing at the time he discharged the gun. However, as we have discussed, the applicability of section 12022.53 enhancements necessarily depends on what is `technically ongoing at the time a firearm is used. The Legislature premised section 12022.53 enhancements on a defendants firearm use during underlying crimes. The statute `prescribes substantial sentence enhancements for using a firearm in the commission of certain listed felonies. [Citation.] Although subdivision (d) incorporates an injury element, it still `clearly serves legislative goals in deterring the use of firearms in crimes. [Citation.] Defendant fired a gun and caused great bodily injury while he was committing three crimes. The sentence imposed by the trial court is required by the statutory language and in keeping with the legislative purpose." (Palacios, supra, 41 Cal.4th 720, 733, italics omitted.)
We are of course bound by the determination in Palacios that imposition of multiple section 12022.53 enhancements for qualifying enhancements does not violate section 654. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Morales (2008) 168 Cal.App.4th 1075, 1084.) More than that, we are persuaded by the reasoning in Palacios that the imposition upon Junor of two enhancements for personal firearm use violates neither the legislative objectives of the statute nor any constitutional principles. Junor fired a gun at a building that was occupied by numerous party guests, and in the process killed one of them. As we have observed, two distinct objectives may have been associated with his acts, which were also directed at multiple victims. His commission of two qualifying convictions against multiple victims justified the imposition of two section 12022.53 enhancements without violation of any constitutional proscriptions against disproportionate sentencing. (See People v. Gonzales (2001) 87 Cal.App.4th 1, 18-19.)
THE APPEAL OF MARQUIS
I. The Instructions on the Natural and Probable Consequences Doctrine.
We turn to the claim of Marquis that the instructions on the natural and probable consequences doctrine were deficient. He asserts that the CALCRIM No. 402 instruction given by the trial court failed to "make explicit the aspect of the natural and probable consequence doctrine" that the defendant "must actually aid and abet the original target offense in order to be guilty of the nontarget offense." He points out that in contrast to the former CALJIC 3.02 instruction, which "explicitly require[d] that the jury find as an element that the defendant aided and abetted the commission of the target offense," the instruction given by the trial court only listed the elements of the natural and probable consequences doctrine, and made "no reference to aiding and abetting" liability other than in the "final paragraph," which only stated "[t]he People allege that the defendant originally intended to aid and abet the commission of either possession of a firearm by a minor or brandishing a firearm." Marquis therefore complains that the instruction "permitted a finding of criminal liability for one or more of the nontarget offenses on [his] part without a finding that he had aided and abetted Junor in the commission of any offense."
Former CALJIC No. 3.02 reads: "One who aids and abets [another] in the commission of a crime [or crimes] is not only guilty of [that crime] [those crimes], but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime[s] originally aided and abetted.
"In order to find the defendant guilty of the crime[s] of _______, [as charged in Count[s] _______,] you must be satisfied beyond a reasonable doubt that:
"1. The crime [or crimes] of _______ [was] [were] committed; "2. That the defendant aided and abetted [that] [those] crime[s]; "3. That a co-principal in that crime committed the crime[s] of _______; and "4. The crime[s] of _______ [was] [were] a natural and probable consequence of the commission of the crime[s] of _______."
An evaluation of the meaning and adequacy of instructions is determined under the "test of whether there is a `reasonable likelihood that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276; see also Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4; People v. Smithey (1999) 20 Cal.4th 936, 963; People v. Kelly (1992) 1 Cal.4th 495, 525; People v. Fonseca (2003) 105 Cal.App.4th 543, 549.) In our review of the trial courts instructions, we must adhere to the precept that a challenged instruction " `"may not be judged in artificial isolation," but must be considered in the context of the instructions as a whole and the trial record. [Citation.]" (People v. Ramirez (1997) 55 Cal.App.4th 47, 58.) " ` "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." [Citation.] [Citation.]" (People v. Smithey, supra, at p. 987; see also People v. Castillo (1997) 16 Cal.4th 1009, 1016.) "Jurors are presumed to be intelligent persons capable of understanding and correlating jury instructions." (People v. Tatman (1993) 20 Cal.App.4th 1, 11; see also People v. Harris (1994) 9 Cal.4th 407, 426; People v. Houston (2005) 130 Cal.App.4th 279, 312.)
Defendants complaint that the natural and probable consequences instruction was incomplete improperly segregates the instructions and fails to account for accompanying description of the law of aiding and abetting by the trial court. Consideration of the instructions in their entirety leads us to conclude that the principles of aider and abettor liability for the natural and probable consequences of the principals act were adequately explained for the jury.
According to the natural and probable consequences doctrine: To find a defendant guilty on a natural and probable consequences theory, the jury "must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime[;] . . . [and] that (4) the defendants confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted." (People v. Prettyman (1996) 14 Cal.4th 248, 262, italics & fn. omitted.) A charged crime is a natural and probable consequence of a target crime if, given the circumstances of the commission of the target crime, the commission of the charged crime was reasonably foreseeable. (Id. at p. 261.) The standard is an objective one: "The . . . question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable." (People v. Mendoza (1998) 18 Cal.4th 1114, 1133, italics omitted.) Whether a charged crime is a natural and probable consequence of a target crime is a question of fact. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)
The trial court in the present case gave the standard instruction on aiding and abetting, in accordance with CALCRIM No. 400, that a person may be equally guilty of a crime either by directly committing it or by aiding and abetting a perpetrator who directly committed the crime. The court also advised the jury pursuant to CALCRIM No. 401 that Marquis could only be found guilty of murder based on an aiding and abetting theory if the prosecution proved that Junor committed the murder, Marquis knew that Junor intended to commit the crime, before or after the commission of the crime Marquis "intended to aid and abet the perpetrator in committing the crime," and through words or conduct Marquis did "in fact aid, facilitate, promote, encourage, or instigate the perpetrators commission" of the murder.
In sequence immediately thereafter the court added a modified version of CALCRIM No. 402, the natural and probable consequences doctrine instruction, which explained that to establish the guilt of Marquis for murder, attempted murder, shooting at an inhabited house and negligent discharge of a firearm, the prosecution had to prove that Marquis "is guilty of possession of a firearm by a minor," during his possession of the firearm a co-participant committed the target crime of murder, and under all the circumstances, "a reasonable person in the defendants position would have known that the commission of murder, attempted murder, shooting at an inhabited house, and negligent discharge of a firearm was a natural and probable consequence of the commission of the possession of a firearm by a minor." The proper definition of a natural and probable consequence in CALCRIM No. 402 was also given to the jury. Finally, the jury was advised that the prosecution alleged Marquis "intended to aid and abet the commission of either possession of a firearm by a minor or brandishing a firearm," and he could be found guilty of murder or any of the other charged crimes if he "aided and abetted either possession of a firearm by a minor or brandishing a firearm," and the charged offenses "were the natural and probable consequence of either possession of a firearm by a minor or brandishing a firearm."
In full this portion of the CALCRIM No. 402 instruction reads: "Defendant Marquis Douglas is charged in Count Five of possession of a firearm by a minor and in Count One with murder, Count Two attempted murder, Count Three shooting at an inhabited house, and Count Four negligent discharge of a firearm.
"You must first decide whether a defendant is guilty of possession of a firearm by a minor. If you find the defendant is guilty of this crime you must then decide whether he is guilty of murder, attempted murder, shooting at an inhabited house, and negligent discharge of a firearm. "Under certain circumstances the person is guilty of one crime may also be guilty of other crimes that were committed at the same time. To prove that the defendant Marquis Douglas is guilty of murder, attempted murder, shooting at an inhabited house, and negligent discharge of a firearm the People must prove that, one, the defendant Marquis Douglas is guilty of possession of a firearm by a minor. Two, during the commission of possession of a firearm by a minor a co-participant in that possession of a firearm by a minor committed the crimes of murder, attempted murder, shooting at an inhabited house, and negligent discharge[] of a firearm. And, three, under all of the circumstances a reasonable person in the defendants position would have known that the commission of murder, attempted murder, shooting at an inhabited house, and negligent discharge of a firearm was a natural and probable consequence of the commission of the possession of a firearm by a minor. "A co-participant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or an innocent bystander. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes."
Although the elements of aiding and abetting were given to the jury separately from the definition of the natural and probable consequences doctrine, we assume the jurors properly correlated the instructions to understand that the People had the burden to prove both the status of Marquis as an aider and abettor and the commission by Junor of the murder as the natural and probable consequence of the firearm possession or brandishing offense. (See People v. Kraft (2000) 23 Cal.4th 978, 1077; People v. Calderon (2005) 129 Cal.App.4th 1301, 1309; People v. Ayers (2005) 125 Cal.App.4th 988, 997; People v. Adrian, supra, 135 Cal.App.3d 335, 342.) Accordingly, the trial courts instructions adequately advised the jury of the requirements for vicarious liability of an aider and abettor for the natural and probable consequences of the target crime. (See People v. Richardson (2008) 43 Cal.4th 959, 1021-1022; People v. Coffman & Marlow (2004) 34 Cal.4th 1, 106-107; People v. Williams (1997) 16 Cal.4th 635, 675-676.) The jury was not left with the option of convicting Marquis for any of the nontarget offenses without finding that he also acted as an aider and abettor of the target offense of possession of the gun by Junor. Any amplifying language was neither necessary nor requested by the defense.
In light of the adequacy of the instructions that were given to the jury, no prejudice resulted from defense counsels failure to request amplification of the standard aiding and abetting and natural and probable consequences instructions. (People v. Fiu (2008) 165 Cal.App.4th 360, 378.) Thus, no prejudicial incompetence of counsel resulted from the failure to seek additional instructions on aiding and abetting.
II. Defense Counsels Failure to Object to the Prosecutors Argument on Aiding and Abetting .
Marquis also claims that along with the aiding and abetting instructions, the prosecutors closing argument, which defense counsel also "did not object to," invited the jury "to rely on the improper theory in this case" suggested by the instructions. He directs our attention to the prosecutors analysis of the evidence offered in support of the elements of the natural and probable consequences doctrine, which he asserts emphasized the position that he could be found guilty of the nontarget offenses based on his own "personal possession of the gun, regardless of whether or not he aided and abetted Junors possession of the gun." Marquis maintains that along with the misinstruction to the jurors "on the doctrine of aiding and abetting," the prosecutors argument "for a conviction based on the improper theory" that guilt could attach "under the natural and probable consequences doctrine" based on his "personal possession" of the firearm, demonstrates the jury may have "relied on the improper instruction" and argument in convicting him.
We have found that the aiding and abetting instructions were not flawed, and we also find that no prosecutorial misconduct was committed. We first observe that Marquis did not preserve the claim for review by making a timely assignment of error and a request for an admonition. (People v. Sanders (1995) 11 Cal.4th 475, 552.) And even if an objection had been made, upon review of the record of the prosecutors closing argument we do not discern any objectionable misstatement of the law. The prosecutor did not attempt to define the law of aiding and abetting for the jury, or try to specify the elements of the natural and probable consequences doctrine. As we read the record the prosecutor merely described the evidence that established the vicarious liability of Marquis under the theory of natural and probable consequences. He did not improperly interject his personal belief or erroneously instruct the jury on the law. And even if the prosecutors remarks did amount to a misstatement of the law, " `they cannot be characterized as misconduct. "[A] prosecutor is not guilty of misconduct because in his argument of the law to the jury, he is wrong as to the law. . . ." [Citation.]" (People v. Berryman (1993) 6 Cal.4th 1048, 1073.) "Moreover, the court correctly admonished the jury that opening statements and closing arguments were not evidence, and `[w]e presume that the jury heeded the admonition and any error was cured. [Citation.]" (People v. Smith (2005) 135 Cal.App.4th 914, 925.) Thus, Marquis has failed to establish in this appeal that his counsels representation fell below an objective standard of reasonableness or to demonstrate prejudice. (People v. Davis (1995) 10 Cal.4th 463, 516.)
DISPOSITION
Accordingly, the judgments are affirmed.
We concur.
Margulies, Acting P. J.
Banke, J.