Opinion
B224074
09-13-2011
THE PEOPLE, Plaintiff and Respondent, v. MARQUIS DEJON JILES, Defendant and Appellant.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Blythe J. Leszkay and Shira B. Seigle, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. LA 058803)
APPEAL from a judgment of the Superior Court of Los Angeles County. Elizabeth A. Lippitt, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Blythe J. Leszkay and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Marquis Dejon Jiles timely appealed from his conviction on one count of second degree murder and two counts of second degree attempted murder. The jury found true allegations of great bodily injury and use of a deadly and dangerous weapon. The court sentenced defendant to a total of 28 years and four months to life. Defendant contends the prosecutor committed prejudicial misconduct during argument and the evidence was insufficient to support one of the attempted murder counts. We affirm.
FACTUAL BACKGROUND
I. Prosecution Case
Rose Falcone lived with her boyfriend Kyle Anderson and his two brothers in Los Angeles. On April 19, 2008, there was a party at the Anderson house to celebrate Anderson's birthday. Falcone hired Angela Veliz, a childhood friend, to bartend the party. Veliz brought her boyfriend Maurice, appellant (Maurice's brother) and two other friends with her to the party.
When Anderson introduced himself to one of Veliz's friends, the friend said he was from a gang. Anderson asked Falcone to tell Veliz that her friends had to leave. The men left. Maurice, appellant and another friend returned to the party 30 minutes later. Maurice told Anderson that they had dropped off the friend who was causing the problem. Anderson allowed them to stay.
Walter Hobson arrived at the party at approximately 9:30 p.m. Hobson flirted with Veliz; he did not know she had a boyfriend. Maurice and appellant "caught wind" of the flirting; Hobson saw them talking to Veliz behind the bar, gesturing as if they were upset. Hobson told Anderson that appellant and Maurice appeared upset. Anderson and his friend Jay Roy went to check on things. Anderson and Roy approached appellant and Maurice and overheard them say they were going to beat up someone. Anderson told appellant and Maurice to leave. "There was some resistance" and swearing, and appellant said, "'If this were the streets, it would be different.'" When Anderson asked what appellant meant, appellant said, "'Well, if we were at a different party or different place, then we would be asking you to leave.'" Anderson took the statements to be threats.
During the exchange, Maurice appeared agitated and was yelling and gesturing with his arms. Hobson saw appellant and Maurice gesturing while talking to Anderson. Hobson walked over and said, "'Look, this is my home boy's party. You guys need to, you know, either chill out or leave.'" Maurice started walking towards Hobson and said, "'Fuck you. You don't know where I'm from. You don't know me.'" Anderson punched Maurice in the face. Roy pulled Anderson off of Maurice. Veliz, Maurice, appellant and their friend were thrown out of the party.
Falcone and four male friends, including Johnny Martinez, escorted Veliz's group from the backyard to the front of the house and saw them get into Veliz's car, a blue Scion that was parked down the street from the Anderson house. Appellant and Maurice suddenly jumped out the car and told Falcone they wanted to talk to Anderson. When Falcone told them it was not a good idea, they demanded to see Anderson. Falcone told appellant and Maurice to come back the next day to talk it out and went back to the party. At some point, appellant swung at Martinez. Although Martinez did not feel appellant make contact with his face, a wound just below his left eye started bleeding.
Shortly thereafter, someone told Roy, Hobson and Anderson that appellant and his friends were refusing to leave and had "'cut Johnny in the face.'" Roy, Hobson, Anderson, and most of the party attendees, including Maziar "Mozzy" Tehrani, ran to the front of the house. It was chaotic outside; everyone was yelling. Maurice was screaming Anderson's name while "jumping up and down and throwing his hands up." Anderson ran towards Maurice, and they started fighting. Several people joined in beating on Maurice, but Hobson pulled them off so they could fight one-on-one. During the fight, Hobson saw appellant approach Anderson from behind. It looked like appellant was going to stab Anderson and had something in his hand. Before appellant reached Anderson, Hobson cut him off. Appellant made jabbing motions towards Hobson. Hobson stood his ground. Appellant backed off and walked away.
While the fight was going on, Veliz moved her car so it was parked next to the fight. Falcone told Veliz to get her boyfriend "out of there." Veliz jumped out of her car, leaving the ignition on and her car door open, and broke up the fight.
Appellant ran around Hobson and got into the driver's seat of Veliz's car. Roy heard appellant say, "'You should have never fucked with the niggas,'" before driving down the street away from the crowd. Appellant made a U-turn and drove back towards the party. Appellant looked "very angry" and was holding onto the steering wheel so tightly that his knuckles looked white. Appellant revved the engine and maneuvered the car into the "oncoming traffic lane" towards the crowd of people outside of the party. Roy screamed out to Hobson that the car was coming. When Hobson turned around, he saw a car on the other side of the street turn towards him, heard the engine rev and saw headlights coming directly at him.
Hobson tried to dive out of the way, but the car "clipped" his left leg. Hobson flew up into the air and landed face-first on the concrete. Hobson had "road rash" across his face, hands and knees. Hobson sustained ligament damage in his face, knee and right shoulder.
Veliz, who was standing near Hobson, also tried to jump out of the way of the oncoming car. Veliz was hit in the hip. Tehrani, who was standing between Veliz and Hobson, could not get out of the path of the car. When appellant hit Tehrani, Tehrani's body "folded into the car," his head hit the windshield, and his body flew into the air about 15 or 20 feet. Tehrani "landed on the ground, skidded across the asphalt and slammed against the curb." Tehrani died as a result of cranial cerebral trauma.
The car came to a stop on the front lawn of a neighbor. Appellant jumped out of the car, looked around and said, "'That's what you motherfuckers get for fucking with me.'" Maurice and appellant ran from the scene.
II. Defense Case
Veliz testified. Appellant assisted Veliz tend bar by dispensing beer. At some point, Falcone asked Veliz why she had brought Shorty (Veliz's cousin) to the party. Maurice took Shorty home, and appellant remained at the party. Appellant told Veliz that he felt uncomfortable -- he detected other guests and Anderson were giving him funny looks. Maurice returned about 40 minutes later. Appellant told Maurice of his discomfort.
Anderson approached the bar and asked Maurice and appellant if everything was okay. Maurice said they were good and wished Anderson a happy birthday. Anderson seemed to press the issue of whether everything was okay. Hobson said Anderson was his friend and "homey" and he had Anderson's back. Suddenly, Anderson punched Maurice causing Maurice to fly into the bar and onto the floor. Veliz said they had to leave. When Falcone approached and asked what was going on, Veliz said they were leaving because Anderson had struck Maurice.
Maurice, appellant and their friend were waiting at Veliz's car. When Veliz and appellant tried to put Maurice into the car, he kept calling out for Anderson. Maurice was intoxicated; he gets loud when he drinks too much. Anderson approached, which prompted Maurice to break loose, run toward him and fight. Veliz drove toward the two. Maurice was on the ground in a fetal position being punched and kicked by Anderson and at least four others. Veliz jumped out of the car and ran to help Maurice. As Veliz picked Maurice off the ground, she heard her car take off, an engine sound and then she saw headlights coming toward her as the car veered to its left. Veliz tried to jump from the path of the car in the middle of the street, but was struck on her right leg by the passenger side of the car.
After getting off the ground, Veliz went to the car, which had stopped on the front yard of a neighbor's house. Opening the door, Veliz saw appellant in the driver's seat looking startled. Appellant's eyes were tracking side to side and he did not seem to know where he was. Veliz told appellant to leave, which he did. During the entire evening, appellant was never the aggressor and had even tried to help Veliz cool things down.
Maurice testified that after driving Shorty home, he returned to the party where appellant told him that "'we need to get out of here.'" At that point, Anderson told Maurice and appellant, "'You mother fuckers gotta go.'" and "'You're fucking up my party. I don't even know you fuckers.'" Maurice turned to Veliz and said they had to go; when he turned back, Anderson punched him in the mouth. Maurice and his group left the party. As Maurice went to the car, he saw Anderson behind him; the two men then fought as other guests gathered around. Someone from the crowd started punching Maurice in the back of the head. While on the ground being repeatedly struck and kicked, Maurice heard Anderson and others say, "'Beat this nigger's ass. Beat this nigger's ass.'" During this time, appellant was in the street fighting with two or more other men. The beating stopped when Veliz interceded. As Maurice ran, he heard a boom sound and voices chasing him saying, "Get this nigger. They killed my home boy."
Appellant testified he arrived at the party around 10:30 p.m. and assisted Veliz pass out beer. When Shorty became intoxicated and started saying things he should not have said, Anderson confronted Shorty and asked where he was from. Shorty responded, "a prison gang." Veliz told Maurice and appellant to take Shorty home, which Maurice did. Meanwhile, appellant was becoming anxious about the looks he was receiving from Anderson and his friends; appellant felt unwelcome and asked Veliz to leave.
Maurice returned, and they all agreed to leave after Veliz finished bartending. Maurice became agitated, and Anderson approached with some other guys and said, "'What the fuck! Are you trying to cause any problems here in at my house?'" Appellant answered no. Maurice butted in and exchanged words with Anderson, then Anderson punched Maurice in the face. Appellant ran out from the party with Maurice trailing behind; they met up with Veliz at her car. Veliz and appellant tried to calm Maurice and get him into the car. Appellant then noticed Anderson and about 15 others from the party approaching. Appellant told Anderson they did not want any problems and were "cool," but Maurice challenged Anderson, and Anderson responded by punching Maurice. Appellant tried to intercede but was taken out by five or six others and injured in the process. Neither Hobson nor Roy were involved. Appellant tried to punch back and pulled out a knife to ward off his attackers.
As appellant attempted to back away, Hobson asked, "'Where the fuck are you going?'" Yelling out for Veliz and Maurice to follow, appellant, now being pursued by Hobson, ran toward Veliz's car. The engine was running, the lights were on, and appellant got into the car and drove off in a panic. Appellant made a U-turn at the intersection to come back for Veliz and Maurice, whom appellant believed were standing close to the curb near Anderson's house. Finding himself in the wrong lane, appellant drove toward the curb on the opposite traffic lane; he might have hit the accelerator harder than he should. Appellant reached to the floor board and then the back seat in search of his knife. When appellant sat upright, he accidentally hit the accelerator; it was too late to avoid striking the person who hit the windshield.
By the time appellant regained control of the car, it was veering toward the house; he attempted to hit the brakes. Stunned and shocked, and hearing screaming and something about "'I'm going to fucking kill you,'" appellant found his knife between the seat and the door. Veliz, who was standing right there, told appellant to run. Appellant was found and arrested shortly thereafter and taken to the hospital for his injuries. Appellant acknowledged initially lying to police about not driving the car, but then he admitted he had. Appellant said hitting the people was an accident. Appellant denied intentionally hitting any of the victims.
DISCUSSION
I. Prosecutorial Misconduct
A. Alleged Misstatements
Appellant contends the prosecutor committed misconduct (1) by stating Veliz had been called as a witness to lie and (2) by misstating the law, by example, regarding concurrent intent and the kill zone.
Regarding the charge of attempted murder of Veliz, the prosecutor argued:
Now, let's turn to Angela Veliz. Counsel makes a big deal about the fact that the defendant would have no reason to want to kill Angela Veliz but, ladies and gentlemen, there is something called a 'concurrent intent to kill' under the law. And, ladies and gentlemen, under the law of concurrent intent to kill, the intent to kill element is satisfied as to Angela Veliz. [¶] So what is a 'concurrent intent to kill'? It's defined as follows: A person who primarily intends to kill may also concurrently intend to kill other persons within a particular zone of risk. That is called a 'kill zone.' What does that mean in laymen's terms? Basically means if a person has [the] intent to kill someone within a kill zone, then he has the concurrent intent to kill everyone within that zone.
Let me give you an example. Joe's a gang member. Joe has a loaded gun. Across the street he knows a rival gang member. That rival gang member is surrounded by a crowd of bystanders. [¶] So what does Joe decide to do? Joe wants to kill that rival gang member. He pulls that loaded gun outside of his pocket, and he shoots and he aims, and he fires a couple of rounds into that crowd of people aiming for that rival gang member. As a result, multiple people are hit. Many of the innocent bystanders are hit, and it just so happens one of those innocent bystanders happens to be Joe's own brother. [¶] Ladies and gentlemen, under the law, that's a concurrent intent because Joe had the specific intent to kill that rival gang member. He now has the concurrent intent to kill all of those innocent bystanders he just shot, including his own brother.
So what do we have? We know that in this case, the defendant had that specific intent to kill Walter [Hobson]. And as the defendant had that specific intent and was going for Walter and aimed that car at
Walter, that Angela Veliz was also hit. And because the defendant had that intent to kill Walter, he now has the concurrent intent to hit Angela along with everybody else who was in that zone because that, ladies and gentlemen, is the kill zone.
During supplemental closing argument, the prosecutor argued that appellant's defense that the incident was an accident was unreasonable. The prosecutor stated:
How else do we know that the defense's argument of it being an accident is unreasonable? The testimony of Angela Veliz. Why do you think defense counsel brought Angela Veliz in? To lie on their behalf? Because they needed her to come in and tell you that at the time of the incident, she ran up to the defendant, and she saw him behind that driver's seat and that he had a surprised look on his face. Remember, that's the one fact that Angie suddenly remembers after two years.
After having this case and after being interviewed by the police multiple times, after being interviewed by myself and after taking an oath to tell the truth, just like she had before, she came and testified at this trial. At the prelim, she told you she did not know who the driver was, but suddenly Angie shows up now in court, at trial, in front of the defendant and the defendant's family, and suddenly she remembers that the defendant was behind the wheel with the surprised look. [¶] Ladies and gentleman, that is why the defense [called] Angie, because they needed Angie to come in and lie for the defense, to negate the important piece of evidence that was testified to by Tony Sayegh[] and Rose Falcone.
Sayegh, a party guest, testified to seeing appellant exit Veliz's car after it came to a stop; appellant then began yelling profanities -- "Fuck you. I did this to you." Appellant did not appear surprised by the events which had just occurred.
B. Legal Background
"Under California law, a prosecutor commits reversible misconduct if he or she makes use of deceptive or reprehensible methods when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights . . . is not a constitutional violation unless the challenged action so infected the trial with unfairness as to make the resulting conviction a denial of due process." (Citations & internal quotation marks omitted.) (People v. Letner and Tobin (2010) 50 Cal.4th 99, 169.)
"[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Morales (2001) 25 Cal.4th 34, 44.)
"A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion -- and on the same ground -- the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (Internal quotation marks omitted.) (People v. Letner and Tobin, supra, 50 Cal.4th at p. 169.) As defense counsel did not object to the statements quoted above or argue they constituted misconduct, appellant forfeited these claims. (People v. Thomas (2011) 51 Cal.4th 449, 491.)
Appellant counters that his counsel was ineffective for failing to object to the statements. "To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. Counsel's performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. Prejudice exists where there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." (Citations omitted.) (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
Appellant argues his counsel was ineffective as there was no reason not to object to the misstatements. However, "the mere failure to object rarely rises to a level implicating one's constitutional right to effective legal counsel." (People v. Boyette (2002) 29 Cal.4th 381, 433.) In addition, "except in those rare instances where there is no conceivable tactical purpose for counsel's actions, claims of ineffective assistance of counsel should be raised on habeas corpus, not on direct appeal. This is particularly true where, as here, the alleged incompetence stems from counsel's failure to object. '[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.'" (Citation omitted.) (People v. Lopez (2008) 42 Cal.4th 960, 972; see also People v. Osband (1996) 13 Cal.4th 622, 700-701 [An appellate court will reject a claim of ineffective assistance unless there can be no satisfactory explanation for the challenged behavior.].)
1. Kill Zone
In People v. Bland (2002) 28 Cal.4th 313, 326-331, the court held that the concept of transferred intent did not apply to attempted murder, which sanctioned what a person intended to do, but did not accomplish, not unintended and unaccomplished potential consequences. The court noted, "To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else." (Id. at p. 328.) The court reasoned that the fact a person desired to kill a particular target, did not preclude a finding that the person also, concurrently, intended to kill others within the "kill zone." (Id. at pp. 329-331.) "'The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity.'" (Id., at p. 329; see also People v. Stone (2009) 46 Cal.4th 131, 136-138.)
In Stone, the defendant, who was a passenger in a stopped truck, rolled down the passenger window, pulled out a gun and shot at a group of ten people, but was charged with only one count of attempted murder, not ten counts. (People v. Stone, supra, 46 Cal.4th at pp. 135-136, 138.) Regarding concurrent intent, the court cited the example of where a person placed a bomb on a commercial airplane intending to kill a primary target, but also ensuring the death of all the passengers. (Id. at p. 137.) The court noted that the "concurrent intent" or "kill zone" theory was not a legal doctrine requiring special instructions, but a reasonable inference the jury might draw, and current pattern jury instructions (CALJIC No. 8.66.1) discussed the kill zone theory. (Id. at p. 137) The court concluded the trial court in Stone erred in giving CALJIC No. 8.66.1 because there was no evidence the defendant used a means to kill the victim that inevitably would result in the death of other victims in the zone of danger. (Id. at p. 138.) The court also reasoned that a terrorist who did not have a primary target, but simply wanted to kill as many people as possible by placing a bomb on a plane could be guilty of attempted murder. (Id. at pp. 140-141.)
Appellant cites People v. Anzalone (2006) 141 Cal.App.4th 380, 393, in which the court concluded: "In fact, to be found guilty of attempted murder, the defendant must either have intended to kill a particular individual or individuals or the nature of his attack must be such that it is reasonable to infer that the defendant intended to kill everyone in a particular location as the means to some other end, e.g., killing some particular person." It appears appellant's objection is that at one point, the prosecutor stated if a person had an intent to kill someone in the kill zone, then he had the intent to kill all in the zone rather than he might have such an intent.
Appellant concedes the jury was correctly instructed with CALJIC No. 8.66.1 on this theory. That instruction states:
A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the 'kill zone.' The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim's vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a 'kill zone' zone of risk is an issue to be decided by you.
We presume the jury followed the court's instructions. (People v. Boyette, supra, 29 Cal.4th at p. 436.) Appellant's argument that the presumption should not apply as there were 130 pages of instructions is unconvincing. To the extent some of the prosecutor's comment on concurrent intent was not accurate, the jury was instructed pursuant to CALJIC No. 1.00 to follow the instructions not argument.
2. Lying
Veliz testified that when she went to her car after it stopped on a neighbor's front yard, appellant was in the driver's seat looking startled. However, at the preliminary hearing, Veliz stated she did not know who the driver was, and, in a written statement, Veliz stated the door was wide open and no one was in the car. Veliz also admitted that during a video statement to police, she said she saw no one get out of her car and that she told the prosecutor she did not know who drove the car.
Appellant argues that the challenged remarks sent a message that defense counsel knowingly presented false and perjured testimony and in essence accused counsel of perjury. (See People v. Sandoval (1992) 4 Cal.4th 155, 183-184 [the court held it was "'improper for the prosecutor to imply that defense counsel has fabricated evidence'" and that casting "'aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom.'"].)
"'The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence [and] to argue on the basis of inference from the evidence that a defense is fabricated.'" (People v. Earp (1999) 20 Cal.4th 826, 863.) "When supported by the evidence and inferences drawn therefrom, argument that testimony or a defense is 'fabricated' may not, without more, be properly characterized as an attempt to impugn the honesty and integrity of defense counsel." (People v. Cummings (1993) 4 Cal.4th 1233, 1303, fn. 49.) A prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account, but an unsupported implication that defense counsel fabricated a defense constitutes misconduct. (People v. Farnam (2002) 28 Cal.4th 107, 171.)
During closing argument, the prosecutor called into question the credibility of the defense witnesses. The prosecutor argued Veliz lied and the defense of accident was unreasonable. Defense counsel might not have objected to the challenged statements, which were made during the supplemental argument, as he did not want to draw attention to Veliz's lack of credibility as demonstrated by her prior statements in which she stated she did not know who the driver was or mention appellant's look of surprise, evidence which supports the prosecutor's argument Veliz was lying. Thus, the failure to object did not constitute ineffective assistance of counsel.
Appellant testified the incident was an accident. Assuming arguendo that the failure to object constituted ineffective assistance, although it would have been preferable if the prosecutor had not stated defense counsel called Veliz to lie, it is unlikely that the jury misconstrued the statements as an attack on defense counsel rather than an attack on the witness or applied the comments in an objectionable fashion.
II. Sufficiency of the evidence
"'"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt."'" (People v. Hill (1998) 17 Cal.4th 800, 848-849.)
Appellant contends there was insufficient evidence to support the attempted killing of Veliz because the prosecutor did not suggest she was a target and she was the furthest away and just nicked in the leg. There was sufficient evidence to support an inference that appellant intended to kill everyone in the kill zone as appellant created a zone of harm by accelerating and veering the car toward the group standing next to his principal target (Hobson).
DISPOSITION
The judgment is affirmed.
WOODS , Acting P. J.
We concur:
ZELON, J.
JACKSON, J.