Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA062554. Elden S. Fox, Judge. Affirmed.
Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Two juries convicted Sherman Edward Jackson (defendant) of robbery, false imprisonment, mayhem, and attempted voluntary manslaughter after he entered the victim’s home, robbed the victim at gunpoint, and repeatedly struck the victim’s head, ear, shoulders, and ribs with a baseball bat.
He appeals from the judgment and contends: (1) substantial evidence does not support the verdict on the attempted voluntary manslaughter count, and (2) the trial court committed instructional error. We affirm the judgment.
THE CONVICTIONS
The underlying proceeding involved two trials. In the first trial, the Los Angeles County District Attorney charged defendant with: robbery (count 1, Pen. Code, § 211); false imprisonment (count 2, § 236); assault with a firearm (count 3, § 245, subd. (b)); criminal threats (count 4, § 422); attempted murder (count 5, §§ 187, subd. (a), 664); and aggravated mayhem (count 6, § 205). The information alleged that defendant personally used a firearm (§ 12022.53, subd. (b)); that a principal was armed with a firearm (§ 12022, subd. (a)(1)); that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)); and that defendant personally used a deadly weapon, a baseball bat (§ 12022, subd. (b)(1)).
All statutory references are to the Penal Code unless otherwise indicated.
The first jury found defendant guilty of first degree robbery on count 1 and the lesser included offense of mayhem on count 6. It found true the allegations that defendant personally inflicted great bodily injury on the robbery count, and that defendant personally used a deadly weapon on the mayhem count. The jury failed to indicate that it had reached a verdict on the firearm allegations connected to the robbery count. The jury acquitted defendant of the charges in counts 3-5 and was unable to reach a verdict in count 2 or in the lesser charge to count 5 of attempted voluntary manslaughter.
In the second trial, the amended information charged defendant with robbery (count 1, § 211), false imprisonment (count 2, § 236), and attempted voluntary manslaughter (count 7, §§ 192, subd. (a), 664). The information alleged the same firearm (§§ 12022.53, subd. (b), 12022, subd. (a)(1)), great bodily injury (§ 12022.7, subd. (a)), and use of a deadly weapon (§ 12022, subd. (b)(1)) allegations. The second jury, which did not have the opportunity to decide the robbery charge based on the first jury’s guilty verdict on that count, convicted defendant of counts 2 and 3, and found true all the additional allegations.
The attempted voluntary manslaughter charge is numbered “count 3” in the amended information filed after the first trial. However, the trial court’s minute orders and the abstract of judgment refer to the charge as “count 7.” For consistency, we will refer to that charge as “count 7.”
The trial court sentenced defendant to a term of 16 years in state prison, calculated as follows: on count 1 for robbery, the principal term, the trial court imposed the low term of three years, with an additional 10 years pursuant to the personal use of a firearm enhancement, and three years pursuant to the great bodily injury enhancement, for a total of 16 years. The court stayed the one-year armed principal enhancement. Concurrent with the 16-year term for the robbery count, the court imposed a 10-year term for the false imprisonment count, a nine-year term for the mayhem count, and a seven-year term for the voluntary manslaughter count. The court awarded 439 days in custody credit.
FACTS
I. The Prosecution
In July 2006, James Curtis began corresponding via e-mail with a person who posted an advertisement on Craigslist. The person represented that he was 18 years old and suggested that he was willing to engage in sex for money. On July 30, 2006, at approximately 2:30 a.m., Curtis sent an e-mail setting up a sexual encounter at Curtis’s home. At approximately 3:30 a.m., defendant arrived at Curtis’s home. Upon entering, defendant asked Curtis for a drink and directed Curtis to turn down the air conditioner. Curtis told defendant that he had nothing to drink and proceeded to turn down the air conditioner. Defendant reached behind his back, pulled out a gun, instructed Curtis to strip, and demanded money from Curtis. Curtis removed his clothing and directed defendant to the kitchen, where Curtis’s wallet was located. While in the kitchen, defendant opened the refrigerator, saw some liquor, and said to Curtis: “You lied to me. There is some liquor in here. I’m going to beat the shit out of you before I leave tonight.” Curtis urged defendant to take his money and leave, and Jackson responded: “Yeah, you’re going to tell the police. And if you do, I’m going to come back and kill you.”
At that point, Lovine Briggs entered Curtis’s home carrying a baseball bat. Briggs began searching Curtis’s home for additional money while defendant sat directly across from Curtis pointing the gun at Curtis. Defendant told Curtis if defendant chose to shoot Curtis, the force of the impact would blow Curtis’s head against the wall behind Curtis. After defendant said this, defendant stood up, shoved the gun in Curtis’s mouth until the gun hit the back of his throat, and asked Curtis whether Curtis believed in God. Curtis made an inaudible response, and defendant sat down and continued pointing the gun at Curtis. At one point, Briggs retrieved the gun from defendant and gave defendant the bat.
Defendant and Briggs were codefendants in both trials. In the second trial, the jury convicted Briggs of robbery and false imprisonment and found true allegations that he personally used a firearm and that he was a principal armed with a firearm. This court affirmed the judgment on May 26, 2009 (People v. Briggs, B204563).
It was cold in the dining room, where defendant and Curtis were sitting, and Curtis asked to move into the living room. Curtis sat on the sofa while defendant stood a couple of feet away, tossing the bat from hand to hand. Defendant suddenly turned toward Curtis and raised the bat above his shoulders in a motion that indicated he was about to strike Curtis. Curtis jumped off the couch and tried to grab the bat. Defendant jerked the bat away and began striking Curtis with the bat, landing multiple blows on Curtis’s head, ear, ribcage, and shoulders. Curtis immediately fell to the floor. Although Curtis was breathing heavily, he attempted to “play dead” so that defendant and Briggs would leave. Defendant and Briggs did leave and they took with them $150 to $200 in cash, as well as Curtis’s credit cards, ATM card, and driver’s license. Defendant called the Sheriff’s Department for emergency assistance.
Curtis was bleeding severely and it took several paramedics to stabilize him for the ambulance ride. One of the paramedics testified that in his 17-year career as a paramedic, he had never seen anyone beaten as severely as Curtis. The physician at the emergency room testified that Curtis arrived with a partially removed ear, a fractured skull, a fractured inner ear bone (which later led to air pockets forming between Curtis’s brain and skull), broken ribs, soft tissue injuries, and a concussion.
A neighbor testified that at 3:30 a.m., he was out walking his dog when he saw a man matching Briggs’s description standing on the street. About 4:00 a.m., the neighbor heard some loud crashing noises coming from the direction of Curtis’s home and the words “Get out. Get out.” He then saw the same man and a shorter man walk out the front door of Curtis’s home. One of the men (the neighbor could not recall which one) was carrying a bat.
A forensic specialist for the County of Los Angeles testified that defendant’s fingerprints matched four of the five latent prints recovered from Curtis’s home.
An officer with the Culver City Police Department testified that in September 2006, he had reason to search a vehicle being driven by Briggs. Inside the vehicle, the officer found a.32-caliber pistol. The registered owner of the gun was Briggs’s aunt. She had reported the gun stolen in April 2006. At trial, Curtis was shown the gun that police recovered from Briggs and testified that it was the same gun that defendant had pointed at him.
II. The Defense
Neither defendant nor Briggs testified. The defense called a medical social worker who interviewed Curtis shortly after he was admitted in the hospital. She testified that during their interview, Curtis told her that one man entered his apartment and held him at gunpoint; that another man subsequently entered his home holding a baseball bat; and that it was the second man who struck Curtis with the bat.
The prosecution and defense stipulated that a cigarette butt recovered from Curtis’s home tested positive for DNA from both Briggs and Curtis.
ARGUMENT
I. Substantial Evidence
A. Defendant’s Argument
Defendant argues that substantial evidence does not support his conviction for attempted voluntary manslaughter because there was insufficient evidence of his specific intent to kill Curtis.
B. Relevant Authorities
In People v. Whisenhunt (2008) 44 Cal.4th 174, the California Supreme Court recently summarized the well-established standard of review. “‘In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility. [Citation.]’ [Citation.]” (Id. at p. 200.)
“One who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots.” (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) “Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the putative killer’s actions and words.” (Ibid.) “Whether a defendant possessed the requisite intent to kill is, of course, a question for the trier of fact.” (Id. at p. 946.) “While reasonable minds may differ on the resolution of that issue, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Ibid.)
C. Analysis
We turn first to defendant’s words. Throughout the evening, defendant made a number of threatening statements to Curtis. First, defendant told Curtis that he would “beat the shit out of [him]” for lying to defendant about whether there was alcohol in Curtis’s refrigerator. Next, while defendant had a gun shoved deep inside Curtis’s mouth, he told Curtis that if he chose to shoot Curtis at that moment, the force of the impact would blow Curtis’s head against the wall. Then, while defendant still had the gun shoved inside Curtis’s mouth, he asked Curtis if Curtis believed in God. Finally, when Curtis urged defendant to take whatever belongings he wanted and leave, defendant stated his belief that Curtis would call the police and with that, he said: “And if you do, I’m going to come back and kill you.”
A rational trier of fact could well have concluded that these threatening statements alone, which included references to extreme violence and death, established an intent to kill beyond a reasonable doubt. Nonetheless, defendant argues that these statements do not demonstrate an intent to kill; they merely show that defendant “intended nothing more sinister than to ‘beat the shit out of’ Mr. Curtis.” Defendant is asking us to reweigh the evidence, which is beyond the scope of our review.
We turn next to defendant’s actions. The severity of an attack with a deadly weapon and the targeting of vital areas, such as the head, can support an inference of an intent to kill. (See, e.g., People v. Lasko (2000) 23 Cal.4th 101, 112 -113 [“[T]he evidence strongly suggested an intent to kill. Defendant hit [the victim] in the head with a baseball bat with extreme force. The blow (or blows) caused extensive and multiple fractures at the base and on the outside of [the victim’s] skull”]; People v. Seaton (2001) 26 Cal.4th 598, 667 [“evidence also showed that defendant hit Jones in the head with a hammer more than 40 times, which strongly suggests an intent to kill”].)
Here, the evidence established that defendant brutally attacked Curtis with a baseball bat. Curtis testified that defendant struck him multiple times on his head, ribcage, arms, and shoulders. The force of the beating caused Curtis to drop to the ground immediately, and resulted in such severe bleeding and injuries that one of the treating paramedics testified he had never seen anyone beaten so severely before in his 17 years of emergency rescue. A rational trier of fact could certainly conclude beyond a reasonable doubt that such evidence of a severe and brutal beating to the victim’s vital areas demonstrated an intent to kill.
Defendant argues that he only attacked Curtis after Curtis jumped off the couch and tried to wrestle the bat from him, thus negating the inference that defendant had a prior intent to kill Curtis. But intent to kill does not require substantial deliberation. “[I]f the jury found defendant’s use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferred, even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance.” (People v. Arias (1996) 13 Cal.4th 92, 162.)
Defendant also argues that when Curtis fell to the ground, defendant stopped beating Curtis and simply left him alone, thus demonstrating only an intent to physically assault or cause great bodily injury to Curtis, but not to kill him. We disagree. The jury could have concluded from this evidence that defendant stopped beating Curtis because he believed Curtis was already dead. That defendant made no attempt to obtain aid for Curtis after the beating is additional evidence supporting an intent to kill. (People v. Lasko, supra, 23 Cal.4th at pp. 112-113 [defendant’s failure to obtain aid for victim after beating him with a bat was evidence of intent to kill].)
Based on our review of the entire record, we conclude there was sufficient evidence of defendant’s specific intent to kill Curtis to support the attempted voluntary manslaughter conviction.
II. Instructional Error
A. Defendant’s Argument
Defendant argues that the trial court violated his constitutional rights to due process and a fair trial when the court instructed the jury in the second trial about the outcome of the first trial, including the counts on which the jury convicted and acquitted defendant.
B. Proceedings Below
After the second day of trial, near the close of the prosecution’s case, the trial court instructed the jury as follows:
“In a prior proceeding defendant [Sherman] Jackson was charged with committing robbery of an inhabited dwelling, causing great bodily injury, mayhem with a deadly weapon, to wit, a bat, attempted murder, assault with a firearm, aggravated mayhem with a deadly weapon, to wit, a baseball bat, and criminal threats against James Curtis.
“A duly constituted jury charged with the very issue of determining [Sherman] Jackson’s guilt or innocence of those crimes found that [Sherman] Jackson was guilty of robbery of an inhabited dwelling, causing great bodily injury and mayhem with a deadly weapon, to wit, a bat.
“[Sherman] Jackson was acquitted of attempted murder, aggravated mayhem, assault with a firearm, and criminal threats charges. Those crimes related to the same events you have heard testimony upon in these proceedings.”
Defendant did not object to the instruction while it was being read to the jury or afterward outside the presence of the jury.
At the close of trial, the court read a virtually identical instruction to the jury, with one notable difference. After informing the jury of the charges in which defendant had been acquitted and convicted, the trial court instructed the jury: “Do not consider these facts for any purpose. They are not relevant to whether [defendant is] guilty or not guilty of these current crimes. Further, do not conclude from the fact that this instruction has been given that I’m expressing any opinion as to the facts or whether either defendant is guilty or not guilty of any of the charged crimes in this trial.”
Again, defendant made no objection to the instruction.
B. Relevant Authorities
Failure to object to instructional error waives the objection on appeal unless the defendant’s substantial rights are affected. (§ 1259; People v. Rodrigues (1994) 8 Cal.4th 1060, 1192-1193.) “‘[S]ubstantial rights’” are equated with error resulting in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.)
When a criminal defendant contends that a jury instruction is erroneous, this court inquires “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72.) In conducting this inquiry, this court considers the challenged instruction in the context of all the instructions given by the trial court. (People v. Frye (1998) 18 Cal.4th 894, 957.) On appeal, “[w]e presume that jurors comprehend and accept the court’s directions. [Citation.] We can, of course, do nothing else. The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.” (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
C. Analysis
Citing People v. Castro (1985) 38 Cal.3d 301 and similar cases, defendant contends that the trial court’s instruction was tantamount to informing the jury of defendant’s prior felony convictions for impeachment purposes, which was improper because defendant did not testify. We find defendant’s analogy inapposite. While it is certainly true that it may be an abuse of discretion to admit evidence of a defendant’s prior convictions for impeachment purposes when the defendant does not testify, the trial court did not admit evidence of prior convictions in this case. The trial court informed the jury of convictions (and acquittals) rendered in the same proceeding, but by a different jury.
In Castro, the Supreme Court held that a trial court witness may be impeached by evidence of a prior conviction of a crime involving moral turpitude. (People v. Castro, supra, 38 Cal.3d at p. 306.)
Citing Evidence Code section 1101, subdivision (a), defendant also contends that the trial court’s instruction essentially informed the jury that defendant had committed “other bad acts” and that the jury could infer from these “other bad acts” that defendant had a “general criminal propensity, or the propensity to commit specific types of crimes.” We find no merit to this argument. It is certainly true that a jury may infer that because a defendant committed a bad act in the past, he has a general criminal propensity and thus may be guilty of the current charged offense. And for this reason, Evidence Code section 1101 circumscribes the situations in which evidence of prior bad acts may be admitted. Had the challenged instruction referenced convictions from a proceeding based on a prior and different incident, then defendant’s argument might carry more weight. But the instruction in this case referenced convictions from a proceeding stemming from the same incident. Thus, there was no prior bad act from which the jury could infer that defendant had a propensity to commit the current charged offenses.
Evidence Code section 1101, subdivision (a) provides that subject to certain exceptions, “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
Defendant further contends that the instruction tainted the second jury’s decision making process because it essentially told them that a prior jury had already decided the ultimate question of defendant’s guilt. We are not persuaded by this argument. The trial court specifically instructed the jury that defendant’s convictions and acquittals in the first trial were “not relevant to whether [defendant was] guilty or not guilty of these current crimes.” Moreover, the trial court instructed the jury it must not infer or assume from the fact that defendant was brought to trial that he was more likely to be guilty than not guilty. On appeal, we assume the jury understood these instructions and adhered to them. (People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17.)
In sum, we conclude there is no reasonable probability that the jury applied the challenged instruction in a way that violated the Constitution. Because we conclude that the court’s instruction was not erroneous, we need not decide the issue of forfeiture.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.