Opinion
F074926
04-30-2018
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW ALEXANDER MURRAY, Defendant and Appellant.
Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CR-02493)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara, Judge. Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Defendant Matthew Alexander Murray was convicted by jury trial of attempted escape from a county jail by force. On appeal, he contends (1) the evidence was insufficient to support the conviction, and (2) the trial court erroneously imposed duplicate fees. We direct the trial court to reduce the fees and amend the minute order and abstract of judgment. We affirm the judgment as modified.
PROCEDURAL SUMMARY
On August 25, 2016, a jury found defendant guilty of attempted escape from a county jail by force (Pen. Code, §§ 664, 4532, subd. (b)(2)).
All statutory references are to the Penal Code unless otherwise noted.
On August 30, 2016, the trial court found true allegations that defendant had served two prior prison terms (§ 667.5, subd. (b)).
On December 16, 2016, the trial court sentenced defendant to four years in prison, plus a one-year prior prison term enhancement, all to be served consecutively to a previously imposed prison sentence.
On December 23, 2016, defendant filed a notice of appeal.
FACTS
On March 24, 2016, at about 9:30 p.m., Correctional Officer Nanika Richard heard a repeated "banging, knock noise" in the jail, on and off for 30 minutes to an hour. She was approximately 50 to 75 feet from the cells in a "controlled area at a booking window, which [was] open with mesh wires." She called around to see if any officers had heard the banging noise. They had not, so she left to investigate, entering the housing unit where defendant had been held in a cell by himself for about 20 days. She looked at each inmate as she walked through the unit. When she reached defendant's cell, she saw defendant in boxers, shoes, and socks, "bending down towards the toilet ... picking something up." She thought it looked like ceiling debris. When she looked up, she saw a hole in the ceiling near the wall by the door. An officer just passing by the cell would not have seen the hole because the wall blocked the view. She announced over the radio that she was concerned defendant was attempting to escape.
Sergeant Timothy Moore responded to Richard's call. When he got to defendant's cell, he saw defendant in the middle of the cell and Richard at the door. Moore "could see up through the ceiling, see a hole in the ceiling," and debris on the floor, including pieces of steel mesh and green-colored material from the green ceiling.
The ceilings of the cells were painted lime green so the inmates could not fill and hide holes with toilet paper or other white paper.
Defendant was moved out of his cell. Moore entered the cell and took photographs of the cell and the circular hole in the ceiling, which was near the wall. He could see up into an open space. He estimated the attic space between the approximately 11-foot-high ceiling and the roof of the one-story jail was about four and one-half to five feet. A handmade ladder made up "of torn-up sheets that had been put together with magazine pieces of paper, combined with ... T-shirt clothing," was hanging from a square return air vent on the wall beneath the ceiling hole. The ladder hung down the wall over the sink and attached toilet. Moore did not climb the ladder to look for tools in the attic space.
DISCUSSION
I. Sufficiency of the Evidence
A. Law
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.) "The same standard applies when the conviction rests primarily on circumstantial evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) "[B]ecause 'we must begin with the presumption that the evidence ... was sufficient,' it is defendant, as the appellant, who 'bears the burden of convincing us otherwise.' " (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430.) "It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact." (People v. Tripp (2007) 151 Cal.App.4th 951, 955; see People v. Young (2005) 34 Cal.4th 1149, 1181.) Reversal on a substantial evidence ground "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) Furthermore, " ' " '[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.' " ' " (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, the possibility that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.; People v. Panah (2005) 35 Cal.4th 395, 488.)
To prove an attempt to commit a crime, the prosecution must show that the defendant committed a direct but ineffectual act toward the commission of the crime with the specific intent to commit the crime. (§ 21a ["attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission"].)
In this case, the trial court instructed the jury on attempted escape pursuant to section 4532, subdivision (b)(2) as follows:
Section 4532, subdivision (b) provides:
"(b)(1) Every prisoner arrested and booked for, charged with, or convicted of a felony, and every person committed by order of the juvenile court, who is confined in any county or city jail, prison, industrial farm, or industrial road camp, is engaged on any county road or other county work, is in the lawful custody of any officer or person, or is confined pursuant to Section 4011.9, is a participant in a home detention program pursuant to Section 1203.016, 1203.017, or 1203.018 who escapes or attempts to escape from a county or city jail, prison, industrial farm, or industrial road camp or from the custody of the officer or person in charge of him or her while engaged in or going to or returning from the county work or from the custody of any officer or person in whose lawful custody he or she is, or from confinement pursuant to Section 4011.9, or from the place of confinement in a home detention program pursuant to Section 1203.016, is guilty of a felony and, if the escape or attempt to escape was not by force or violence, is punishable by imprisonment in the state prison for 16 months, two years, or three years, to be served consecutively, or in a county jail not exceeding one year.
"(2) If the escape or attempt to escape described in paragraph (1) is committed by force or violence, the person is guilty of a felony, punishable by imprisonment in the state prison for a full term of two, four, or six years to be served consecutively to any other term of imprisonment, commencing from the time the person otherwise would have been released from imprisonment and the term shall not be subject to reduction pursuant to subdivision (a) of Section 1170.1, or in a county jail for a consecutive term not to exceed one year, that term to commence from the time the prisoner otherwise would have been discharged from jail."
"The defendant is charged with attempted escape. To prove that the defendant is guilty of this crime, the People must prove that, No. 1, the defendant took a direct but ineffective step toward committing escape; and, No. 2, the defendant intended to commit escape.
"A direct step requires more than mere planning or preparing to commit escape or obtaining or arranging something needed to commit escape. A direct step is one that goes beyond planning ... or preparation and shows that a person is putting his or her plan into action.
"A direct step indicates a definite and unambiguous intent to commit escape. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] ... [¶]
"To commit an act by force or violence means to wrongfully use physical force against the property of another."
B. Specific Intent to Escape
Defendant first contends there was no evidence he intended to escape. Citing People v. Romero (2015) 62 Cal.4th 1 at page 38, in which the defendant had expressly stated his intent to escape to a fellow inmate, defendant asserts that his "makeshift ladder, by itself, does not demonstrate an intent to escape." He argues that a defense exhibit, a photograph of a horizontally hung rope holding drying laundry in a cell, "shows there are innocuous purposes for stringing items up in a jail cell, like creating a laundry line." He continues: "The tying together of his bedsheets and reading materials may appear illogical, but it does not indicate the specific intent to escape without some corroborating evidence." In his reply brief, he adds: "[That] photograph show[s] how prisoners use ropes tied to the walls of the cell to do things like hang their laundry" and "shows that there are other innocuous possibilities for why [he] constructed the 'ladder.' [Citation.] The 'ladder' could have been the means to hang laundry, an art project, a way to pass the time, or simply a means of viewing the hole that had appeared in his cell." He notes that the hole was too small for a grown man to fit his entire body through to leave the jail, and asserts that there was "absolutely no evidence to substantiate the prosecution's theory that the 'ladder' was created to avoid confinement."
Although some perpetrators do expressly state their intent to commit a particular crime, " ' "[i]ntent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense." [Citation.] "Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction." [Citation.]' [Citation.] Specific intent may be proved from inferences drawn from the facts and circumstances surrounding the offense in a variety of contexts .... (See, e.g., People v. Holt (1997) 15 Cal.4th 619, 669-670 [entering premises with specific intent to commit felony or theft, i.e., burglary]; In re Gary H. (2016) 244 Cal.App.4th 1463, 1478 [loitering on school grounds with specific intent to commit an assault]; People v. Lopez (2015) 240 Cal.App.4th 436, 453 [threat made with intent of placing victim in imminent fear of own safety or family's safety, i.e., stalking]; People v. Misa (2006) 140 Cal.App.4th 837, 842 [infliction of great bodily injury with specific ' "intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose," ' i.e., torture].)" (M.N. v. Morgan Hill Unified School District (2018) 20 Cal.App.5th 607, 622)
Here, the circumstances amply supported the inference that defendant specifically intended to escape from the jail. Contrary to defendant's strained explanation, the tying together of his bedsheets and reading materials does not appear illogical at all. The photographs taken by Moore of defendant's cell plainly demonstrate that defendant had constructed a ladder for the very logical purpose of reaching the ceiling to make a hole. He had hung the ladder vertically by sliding the upper end of it over the cover of the wall return air vent so the ladder hung right below the ceiling and right above the sink/toilet combination, which could be used as a step stool to reach the ladder. Richard could hear defendant's banging noises and she later saw him picking up the ceiling debris from the floor. Clearly, the circumstances demonstrated that defendant was not using his ladder to dry laundry or display art projects, even if it is conceivable that another inmate would bother to construct a ladder for these purposes.
Even less conceivable is defendant's suggestion that the hole came before the ladder, and not vice versa. No evidence supported the idea that a mysterious hole inexplicably appeared in defendant's cell, which he alone had inhabited for 20 days, and then defendant, to take a closer look at that mysterious hole, constructed the ladder, hung it on the wall, and viewed the hole. Instead, the evidence supported the simple and rational inference that defendant constructed the ladder, then used it to reach the ceiling to create a hole through his own efforts, which were overheard by Richard, and resulted in ceiling debris falling to the floor.
Circumstantial evidence that defendant constructed the ladder and used it to reach the ceiling to create a hole was sufficient to prove his intent to escape his cell.
C. Direct Step toward Escape
Next, defendant contends there was no evidence his acts went beyond mere preparation. He argues that even if the hole in the ceiling can be attributed to him, there was no evidence he made an "actual escape attempt." He maintains that both the construction of the ladder and the creation of the hole were mere preparation, not direct steps. He stresses that he was not found climbing the ladder or moving any body part through the hole; he was only found cleaning debris off his floor.
Addressing the last comment first, we simply respond that it was not necessary that defendant be caught in the act of climbing the ladder when the circumstantial evidence was sufficient to support the reasonable inference he had done so.
As for an "actual escape attempt," the direct act required for an attempt "need not be the last proximate or ultimate step toward commission of the crime or crimes [citation], nor need it satisfy any element of the crime. [Citation.] However, ... '[b]etween preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.' [Citation.] ' "[I]t is sufficient if it is the first or some subsequent act directed towards that end after the preparations are made." ' " (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 (Decker).)
"[I]t could not be plainer, as Chief Justice Holmes put it, that while 'preparation is not an attempt,' nonetheless 'some preparations may amount to an attempt.' [Citation.] Conduct that qualifies as mere preparation and conduct that qualifies as a direct but ineffectual act toward commission of the crime exist on a continuum, ' "since all acts leading up to the ultimate consummation of a crime are by their very nature preparatory." ' [Citation.] The difference between them 'is a question of degree.' " (Decker, supra, 41 Cal.4th at p. 12.)
Furthermore, the law does not require that a perpetrator commit a particular act, an "actual escape attempt" to "accomplish the attempt," as defendant puts it, such as moving a body part through the hole. "[T]he act constituting an attempt to escape is not defined in terms of its proximity to the completed escape .... 'The introduction into the concept of attempt to escape of a requirement of intentionally doing an act, the direct, natural and probable consequence of which, if successfully completed, would be an escape, too narrowly limits the application of the statute. Such an act could be to pass part way through a door, window or other opening to the outside of the place of confinement before falling back, being pulled back or disabled. [¶] ... [¶] The Legislature has not proscribed the doing of any single defined act as an attempt to escape. Many acts, including some non-criminal in themselves, might be conducive toward carrying out an intention to escape, and the scope of the statute proscribing such an attempt should not be limited to specifically designated acts.' " (People v. Bailey (2012) 54 Cal.4th 740, 750-751.)
Here, contrary to defendant's portrayal of all of his acts as preparatory to a yet to be attempted escape, the jury was justified in concluding that his acts fell along the continuum described by Chief Justice Holmes, each act leading defendant closer to the goal of escape and the consummation of that crime.
Defendant relies on People v. Lancaster (2007) 41 Cal.4th 50 (Lancaster) to support his contention that his acts amounted to mere preparation. In Lancaster, the court concluded the mere presence of a handcuff key in defendant's cell, without more, was insufficient to establish " 'criminal activity by the defendant which involved the use or attempted use of force or violence' " as an aggravating factor under section 190.3, subdivision (b) in connection with the penalty phase after defendant was convicted of murder. (Lancaster, at p. 91.) In concluding the handcuff key was not admissible to show attempted escape (to establish criminal activity under section 190.3), the court ruled that the presence of the handcuff key "in defendant's cell showed, at most, mere preparation." (Lancaster, at p. 94.)
Here, defendant explains that both the ladder and the hole in the ceiling were his "handcuff key"—that is, mere preparation—and there was no evidence he "attempted to use his 'key,' let alone accomplish the attempt." Assuming for the sake of argument that Lancaster is applicable here, we disagree that the hole in the ceiling was mere preparation or a "key" waiting to be used. If the raw ladder materials, or even the constructed ladder itself, amounted to a "key," defendant certainly used that "key" to move forward with his plan to escape. As we have explained, constructing the ladder, hanging it on the wall, climbing it, and making the hole in the ceiling (even if not yet complete) constituted acts toward the commission of defendant's escape, well beyond mere preparation or planning, that showed defendant was progressing with his plan to escape.
D. Force against Property
Lastly, defendant contends there is no evidence he created the hole in the ceiling of his cell, and thus no evidence he used force against the jail property. He notes that no tools were found and he was merely seen cleaning up debris from the floor. The only acts attributable to him, he says, were the construction of the ladder and the picking up of debris from the floor.
Once again, defendant fails to acknowledge that circumstantial evidence and the reasonable inferences arising from it can prove guilt beyond a reasonable doubt. Here, there was a reasonable inference that defendant—who was the sole inhabitant of the cell for 20 days, the possessor of a handmade ladder hung under the ceiling hole, and the apparent source of the banging noise and ceiling debris—was indeed the creator of the hole. The jury obviously accepted this entirely reasonable inference, rather than the unreasonable inference that the hole mysteriously appeared and defendant created the ladder to view it. Accordingly, sufficient evidence supported this element of the crime, as well. II. Imposition of Fees
The parties agree that the trial court erroneously duplicated fees imposed pursuant to section 1465.8 and Government Code section 70373. We direct the trial court to reduce the fees and amend the minute order and abstract of judgment.
DISPOSITION
The trial court is directed to reduce the fees by imposing an $80 fee pursuant to Penal Code section 1465.8 and a $60 fee pursuant to Government Code section 70373, and to prepare an amended minute order and abstract of judgment reflecting these changes. The court is further directed to forward certified copies of these documents to the appropriate authorities. As so modified, the judgment is affirmed.