Opinion
C074734
02-10-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ALBERT SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11F6881)
This case arises from a high-speed chase that ended in a shootout with law enforcement officers. A jury found defendant Albert Anthony Smith guilty of ten counts of attempted premeditated murder of a peace officer (Pen. Code, §§ 187, 664, subd. (f); counts 1-10), ten counts of assault with a semi-automatic firearm upon a peace officer (§ 245, subd. (d)(2); counts 11-20), assault on a peace officer with a deadly weapon other than a firearm (§ 245, subd. (c); count 21), assault upon a peace officer's dog (§ 600, subd. (a); count 22), evading a peace officer with disregard for public safety (Veh. Code, § 2800.2; count 23), transporting an assault weapon (former § 12280, subd. (a)(1); count 24), and possession of an assault weapon (former § 12280, subd. (b)). The jury also found true allegations defendant was armed with an assault weapon in the commission of counts 1 through 20 and 22 (§ 12022, subd. (a)(2)) and personally and intentionally discharged a firearm in the commission of counts 1 through 20 (§ 12022.53, subd. (c)).
Further undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to an aggregate term of 350 years to life in state prison, consisting of 10 separate and consecutive terms of 15 years to life on 10 counts of attempted premeditated murder, plus 10 consecutive 20 year determinate enhancements on each of the attempted murder counts for personally and intentionally discharging a firearm in the commission of those offenses. The trial court imposed but stayed sentences on the remaining counts and enhancements under section 654.
Defendant appeals, contending the trial court lacked jurisdiction to hear the case and committed various evidentiary and instructional errors. He also challenges the sufficiency of the evidence to support the attempted premeditated murder convictions and certain enhancements. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of October 27, 2011, an off-duty California Highway Patrol (CHP) officer reported seeing a van, later determined to have been driven by defendant, traveling southbound in the northbound lanes of Interstate 5 (I-5), near the Oregon border. CHP Officer Gregory Perkins responded to the call and spotted the van traveling southbound in the southbound lanes on I-5 heading toward Yreka. Perkins followed the van and activated the emergency lights on his patrol vehicle. Defendant failed to pull over and continued southbound on I-5 at a high rate of speed. CHP Officers Shawn Jordan, Erik Mallory, and Eric Degraffenreid soon joined in the pursuit. Officer Jordan was accompanied by his trained canine, Edo.
During a prolonged pursuit, defendant drove erratically and at an excessive rate of speed. He veered off of I-5 by travelling the wrong direction on a freeway on-ramp and nearly collided head-on with Officer Michael Barham's patrol vehicle, which was parked on the on-ramp. Defendant then drove through fences, a backyard, a field, and a ditch before heading back towards I-5. Before defendant returned to I-5, Officer Mallory saw defendant holding a semi-automatic pistol in his left hand.
Defendant returned to I-5 dragging a portion of a barbed wire fence, which ultimately wrapped around the van's rear axle and caused the left rear tire to blow out in Weed. Defendant slowed and drove along the shoulder of I-5 for a short distance before re-entering the traffic lanes and accelerating to between 75 and 80 miles per hour. About 30 miles later, defendant drove over a spike strip, and the van came to a stop south of Dunsmuir, blocking at least one lane of traffic along southbound I-5.
Officer Barham came to a stop about 35 to 40 feet behind and just to the left of defendant's van, and Officer Degraffenreid came to a stop about 14 feet to the right of Officer Barham's vehicle. Officer Jordan and his canine Edo, Officer Hoskins, CHP Sergeant Duncan Jensen, and CHP Lieutenant Joseph Micheletti joined Officer Barham by his patrol vehicle. Officer Perkins, CHP Sergeants Anthony Gummert and Ryan Ham, and Shasta County Deputy Sheriff David Eoff joined Officer Degraffenreid by his patrol vehicle. Officer Mallory also was present, but he positioned himself behind the guardrail.
Officer Barham retrieved his assault rifle, stood behind the opened driver's side door of his patrol vehicle, and ordered defendant to get out of his van with his hands up. Defendant opened the driver's side door, held out his hands, and asked Barham "to come up and talk to him." Fearing for his safety, Barham declined. Defendant then shut the door, rolled up the window, and refused repeated commands to exit his van. Several minutes later, defendant rolled down the window, extended his arms outside, and said something like, "I just want to talk to somebody. Can't someone come up here?" None of the officers approached the van.
Sometime thereafter, defendant again opened the driver's side door of his van and showed his hands. He then leaned over towards the passenger seat, and when he turned back around, he was holding an assault rifle and immediately began shooting towards the officers who had positioned themselves by Officer Barham's patrol vehicle. Some of the bullets struck Barham's patrol vehicle while others struck the ground nearby. Defendant continued shooting for four or five seconds before being shot by one or more of the officers and falling out of his van and onto the freeway, with the assault rifle at his feet. After falling from his van, defendant unsuccessfully attempted to regain control of his assault rifle, before rolling onto his stomach and surrendering.
Officer Degraffenreid and Deputy Eoff handcuffed defendant, searched him for weapons, and administered first aid to his wounds. While Eoff was searching defendant for weapons, he heard defendant say something like, "I want to fight it out. I want to fight it out." While Officer Degraffenreid was administering first aid, he heard defendant say "something about the C.I.A."
As the officers surveyed the damage, Officer Jordan realized that a bullet had struck his canine Edo in the paw. Although Edo lost a toe as a result of being shot, he was eventually able to return to service.
Investigators found six shell casings at the scene that were of the same caliber as the ammunition found in defendant's assault rifle. They found 20 rounds remaining in the 30-round ammunition magazine attached to defendant's assault rifle, plus one additional round in the chamber. They found three more magazines filled with 90 more rounds of ammunition inside defendant's van. They also found a loaded nine-millimeter semi-automatic pistol on the floorboard between the driver and passenger seats of the van.
DISCUSSION
I
A Proper Holding Order Was Entered in This Matter
Defendant first contends that the trial court was without jurisdiction to hear this case because no proper holding order was ever filed, and the error is reversible per se. He is mistaken.
At the conclusion of the preliminary hearing, the trial court found that there was sufficient cause to hold defendant to answer on all but two counts. Specifically, the court found that "there's good reason, certainly enough on the probable cause or reasonable suspicion standard, to hold the defendant to answer on all of the counts 1 through 22, save and except count 8 and count 19. And as to all except [counts] 8 and 19, the defendant is held to answer." The court's order was recorded on the "felony docket and minutes." The trial court did not sign the minutes or the proposed holding order attached to the complaint.
Pursuant to subdivision (a) of section 872, "If . . . it appears from the examination that a public offense has been committed, and there is sufficient cause to believe that the defendant is guilty, the magistrate shall make or indorse on the complaint" a signed order of commitment. The requirement that the endorsement be made on the complaint, however, is merely directory and does not affect a defendant's substantial rights requiring the information to be set aside. (See People v. Wallace (1892) 94 Cal. 497, 499 (Wallace); People v. Wilson (1892) 93 Cal. 377, 379 (Wilson).) So long as an order is made and entered upon the docket, nothing further is required. (Wallace, at p. 499; Wilson, at p. 379.) As the court stated in Wilson, "In so far as [section 872] provides that the order shall be indorsed upon the deposition, the statute may be regarded as directory; but it is essential that it should be reduced to writing, and entered either upon the official docket of the magistrate or upon the complaint or depositions." (Wilson, at p. 379, italics added; see also Wallace, at p. 499 ["It is doubtless true that the order holding to answer must be in writing [citation]; but when, as a result of an examination, such an order has in fact been made and entered upon the docket of the justice, it would seem that no further action upon his part is necessary in order to authorize the district attorney to file an information against a defendant for the offense named in the order."].)
Here, the trial court's order holding defendant to answer was orally pronounced and entered upon the "felony docket and minutes." That is all that was required. (Wallace, supra, 94 Cal. at p. 499; Wilson, supra, 93 Cal. at p. 379.)
II
The Complaint Was Properly Sworn, and Even If It Was Not, Reversal Is Not Required
Defendant next contends that the trial court was without jurisdiction to hear the case because "no properly sworn felony complaint was ever filed," and the error is reversible per se. Again, he is mistaken.
Section 806 provides in pertinent part, "A proceeding for the examination before a magistrate of a person on a charge of a felony must be commenced by written complaint under oath subscribed by the complainant and filed with the magistrate. Such complaint may be verified on information and belief." Defendant acknowledges that "it is entirely proper for a district attorney to be the complainant," and that "[a] district attorney may also administer the oath referred to in [section 806]." Defendant, however, complains that here, "the particular district attorney who filed the felony complaint in this case apparently served as both the complainant and the person administering the oath."
As this court found over a century ago, "There is nothing in the statute which disqualifies the district attorney from swearing to the complaint. The statute does not prescribe who shall make oath to the complaint. The argument that the defendant could not have and did not have a fair trial because of the fact that the district attorney made the complaint and afterward conducted the trial is without merit. His having made the complaint before the magistrate would not indicate necessarily any greater zeal or interest in the case than the subsequent filing of the information. The fairness of the trial is to be judged by what took place at the trial." (People v. Currie (1911) 16 Cal.App. 731, 733-734, italics added.)
Moreover, it is sufficient for a complainant to make an unsworn statement under Code of Civil Procedure section 2015.5 that he or she subscribed the complaint under penalty of perjury. (People v. Salazar (1968) 266 Cal.App.2d 113, 114-115 (Salazar).) In Salazar, "[t]he person who signed the complaint as the 'declarant and complainant' did not do so under oath but, in lieu of so doing, above his signature he made the following statement: 'I declare under penalty of perjury that the foregoing is true and correct.' " (Id. at p. 113, fn. omitted.) In holding that such was sufficient, the court explained, "A declaration made in accordance with section 2015.5 of the Code of Civil Procedure serves the same function as a sworn statement in that each acts as a vehicle to convey to the magistrate the facts upon which reliance is placed as constituting a showing of probable cause [citation] and each assures that the person stating the facts does so with an awareness of the grave responsibility he has assumed with respect to the truthfulness of his statement." (Id. at pp. 114-115.)
Here, the prosecution filed with the magistrate a complaint signed by Josh Lowery. The complaint identified Lowery as the chief deputy district attorney of Shasta County. His signature appeared above a statement indicating that the complaint has been "[s]ubscribed and sworn to before [¶] this 4th day of November, 2011." The signed statement indicating that Lowery had sworn to the complaint substantially complied with the requirements of section 806. Not only was Lowery an officer of the court but also was authorized to administer oaths pursuant to his position as a deputy district attorney. (See People v. Balthazar (1961) 197 Cal.App.2d 227, 228.) By signing his name above the statement that he had "sworn to" the complaint, Lowery evidenced an unmistakable intention to subscribe the complaint under penalty of perjury. (See People v. Walker (1967) 247 Cal.App.2d 554, 562.) Accordingly, his signed statement was sufficient to assure that he filed the complaint in good faith and with an awareness of the grave responsibility he assumed regarding its truthfulness. (See Salazar, supra, 266 Cal.App.2d at pp. 114-115.)
In any event, even assuming the complaint had not been properly sworn, reversal would not be warranted here. The California Constitution provides, "No judgment shall be set aside . . . for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Section 960 likewise provides, "No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits." Defendant does not contend that he was prejudiced by Lowery serving as both the complainant and the person administering the oath. Nor does the record disclose any prejudice to defendant.
For all the foregoing reasons, defendant's claim that his convictions must be reversed because the same deputy district attorney served as both complainant and the person administering the oath fails.
III
All 10 Attempted Murder Convictions Are Supported by Substantial Evidence
Defendant next contends that because there is no evidence he fired his assault rifle in the direction of the five officers who had taken cover behind Officer Degrafferreid's patrol vehicle, there is insufficient evidence to support his convictions for attempted murder as to those five officers. We are not persuaded.
Defendant was convicted of the attempted murder of 10 peace officers: Officers Barham, Jordan, Micheletti, Hoskins, Jensen, Degraffenreid, Perkins, Gummert, and Ham and Deputy Eoff. During the shootout, Barham, Jordan, Hoskins, Jensen, and Micheletti took cover behind Barham's patrol vehicle, while Degraffenreid, Perkins, Gummert, Ham, and Eoff took cover behind Degraffenreid's patrol vehicle. Degraffenreid's vehicle was parked 14 feet to the right of Barham's vehicle. Defendant fired his assault rifle towards the officers who had taken cover near Barham's vehicle, and was shot by one or more officers within 4 or 5 seconds.
In considering a claim challenging the sufficiency of the evidence in a criminal case, " ' "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.)
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citation.]" (People v. Ervine (2009) 47 Cal.4th 745, 785 (Ervine).) "[T]he intent required for attempted murder can be satisfied not only by the intent to kill a particular person, but also by 'a generalized intent to kill someone.' [Citation.] Indeed, 'a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind.' [Citation.]" (Id. at p. 789.)
Defendant argues that the evidence of intent was inadequate because there was no evidence that the group of officers who had taken cover behind Officer Degraffenreid's car were directly fired upon. While defendant is correct that there was no evidence defendant fired in the direction of those five officers, such evidence is not required to sustain an attempted murder conviction. As our Supreme Court observed in People v. Dillon (1983) 34 Cal.3d 441, 455, "the law of attempts would be largely without function if it could not be invoked until the trigger was pulled . . . ." Moreover, in Ervine, our Supreme Court held there was sufficient evidence to support three attempted murder convictions even though there was no evidence the defendant aimed or shot at one of the victims. (Ervine, supra, 47 Cal.4th at pp. 785-786.)
Our Supreme Court's decision in Ervine is instructive. There, four officers--Wayne Aldridge, William Freitas, Larry Griffith, and Henry Mahan--drove to the defendant's residence following a report of domestic violence. (Id. at p. 753-755.) They stopped at a locked gate along the defendant's driveway and yelled to the defendant to come out and talk. (Ibid.) The defendant responded by firing a rifle out of a second-story window. (Ibid.) The defendant shot and killed Griffith and fired shots in the direction of Freitas and Mahon. (Ibid.) Griffith managed to get off one shot before being hit, and Freitas and Mahan returned the defendant's fire. (Ibid.) Aldridge, whose vantage point was obscured, took cover in the "V" of his open vehicle door. (Ibid.) After the shooting stopped and the officers were able to escape, sniper teams were set up around the defendant's house, and the defendant surrendered several hours later. (Ibid.) An investigation at the scene revealed that the defendant had placed several gasoline cans in the yard and inside the house, and loaded weapons of every variety were found throughout the house. (Ibid.) The day after the shooting, the defendant told a special agent with the Department of Justice that he barricaded the windows " ' 'cuz I wasn't gonna go to jail, man, you know.' " (Id. at p. 761.) The defendant was convicted of the first degree murder of Griffith and the attempted murders of Freitas, Mahan, and Aldridge. (Id. at p. 752.)
On appeal, the defendant argued that the attempted murder conviction as to Aldridge should be reversed because there was no evidence he aimed or shot at Aldridge. (Ervine, supra, 47 Cal.4th at p. 786.) The court rejected defendant's argument, finding that the record "supported the conclusion that defendant intended to kill Aldridge along with the other officers and had undertaken a direct but ineffectual act toward accomplishing the intended killing by firing first at the officers who posed the most immediate threat." (Ibid.) The court explained, "The record at trial supports the inference that defendant expected the peace officers to come to his house, that he did not want to be arrested, and that he prepared an elaborate ambush, placing gas cans inside and outside the house and choosing a sniper location above the officers, to prevent being arrested. This plan, of course, would require the killing of all officers who were present. [Citation.] Defendant was outnumbered, so he focused on those officers--Griffith, Freitas, and Mahan--who were shooting at him. Defendant was injured before he could fully execute his plan, but his strategy of shooting at Freitas and Mahan constituted not only attempted murder as to those two officers but also a direct but ineffectual act toward killing Aldridge, since the elimination of the threat from Freitas and Mahan would have facilitated the task of killing Aldridge." (Ibid., fn. omitted.)
The same is true here. The record at trial supports the inference that defendant did not want to be arrested and attempted to lull the officers into thinking he intended to surrender before opening fire on one group of officers to prevent being arrested. Defendant stopped shooting only after being shot several times, and thereafter unsuccessfully attempted to regain control of his assault rifle. There were 20 rounds remaining in the 30-round ammunition magazine attached to defendant's assault rifle, plus one additional round in the chamber, plus three more magazines with 90 more rounds of ammunition inside the van. While defendant did not fire in the direction of Officer Degraffenreid's car, where the remaining five officers had taken cover, the jury reasonably could conclude that he intended to do so but was injured before he could fully execute his plan, and that his act of firing in the direction of the officers who had taken cover near Officer Barham's vehicle was a direct but ineffectual act toward killing the officers who had taken cover behind Officer Degraffenreid's car, since the killing of the first group of officers would have facilitated the killing of the second. (Ervine, supra, 47 Cal.4th at p. 786.)
Defendant's reliance on this court's decision in People v. Virgo (2013) 222 Cal.App.4th 788 (Virgo) is misplaced. In that case 12 members of the Placer County Sheriff's Office special enforcement team surrounded the home of the defendant, a parolee, who was wanted in connection with an assault. (Id. at pp. 791-792.) Four team members positioned themselves on the east side of the house, three members positioned themselves on the southwest side, three on the northwest side, and two team members were assigned to go around the south side of the house and meet the team positioned on the east side. (Id. at pp. 792, 794-795) The defendant fired four to seven shots in the direction of the four team members positioned on the east side of the house, one shot in the direction of the three team members positioned on the northwest side, and none in the direction of the three team members positioned on the southwest side. (Id. at pp. 799-800.) The defendant eventually surrendered after team members shot tear gas into the house. (Id. at p. 794.) Defendant's only injuries were superficial cuts to his finger and ear. (Id. at p. 796.) A criminologist determined that at least 14 shots were fired from inside the house towards the outside, and of those, 10 actually left the house. (Id. at p. 796.) Nine of the shots fired from inside the house were aimed at the ceiling. (Ibid.) A jury convicted defendant of the attempted premeditated murder of 10 team members. (Id. at p. 797.) This court concluded that there was insufficient evidence to support five of those convictions. (Id. at pp. 797-798.) Specifically, the court concluded that there was insufficient evidence defendant committed a direct, but ineffectual act toward killing the three officers positioned on the southwest side of the house because there was no evidence they were directly fired upon, and that there was insufficient evidence as to two of the three officers positioned on the northwest side of the house because there was evidence of only one shot being fired in their direction. (Id. at pp. 799-800.) The court further explained that "[m]any of defendant's shots were aimed up at the ceiling and over where some of the officers were located. . . . While defendant may have intended with each shot aimed at a human height to kill every officer he could before he was killed, there was insufficient evidence showing he made a direct but ineffectual shot towards each officer." (Id. at p. 800.)
Virgo is distinguishable in at least two key respects. Unlike the present case, the defendant in Virgo could not have easily shot all 10 officers simply by pivoting in place. In Virgo, the officers were positioned at various locations surrounding the defendant's home. (Virgo, supra, 222 Cal.App.4th at pp. 792, 794-795.) In contrast, here, the officers had taken cover behind two patrol vehicles parked just 14 feet apart. Had defendant not been shot, he easily could have turned his sights on the group of officers who had taken cover near Officer Degraffenreid's vehicle. Moreover, unlike the present case, the defendant in Virgo was not shot in the midst of shooting at the officers. To the contrary, he voluntarily surrendered although he was virtually unharmed. (Id. at p. 796.) To the extent defendant contends that Virgo holds that a defendant must aim or fire towards a particular person in order to be convicted of the attempted murder of that person, we reject the contention. Such a holding would be in direct conflict with our Supreme Court's decision in Ervine, and we find Virgo is distinguishable on its facts.
Here, the record supports the inference that defendant intended to kill all 10 officers in order to avoid being arrested, that he committed a direct but ineffectual act towards accomplishing his plan by firing first at the officers who were closest to his van and thus posed the most immediate threat, and that he was injured before he could complete his plan. Accordingly, there is ample evidence to support all 10 attempted murder convictions.
IV
There Was Sufficient Evidence to Support the Jury's Findings That the Attempted
Murders Were Premeditated and Deliberate
Defendant also contends that the evidence "clearly showed" that he did not plan the shooting, and thus, there was insufficient evidence to establish that the attempted murders were premeditated and deliberate. We disagree.
"An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite reflection need not span a specific or extended period of time. . . . [¶] Appellate courts typically rely on three kinds of evidence in resolving the question [of sufficiency of evidence of premeditation/deliberation]: motive, planning activity, and manner of killing. [Citations.] These factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. [Citation.] . . . In conducting this analysis, we draw all reasonable inferences necessary to support the judgment. [Citations.]" (People v. Stitely (2005) 35 Cal.4th 514, 543.)
Here, there was ample evidence the attempted murders were premeditated and deliberate. From the facts recounted above (defendant opening the van door and showing his hands as if he intended to surrender, then turning towards the passenger seat and retrieving an assault rifle, immediately firing in the direction of Officer Barham's vehicle as he turned around, and stopping only after being shot multiple times himself), a reasonable jury could conclude that defendant had a motive to kill the officers to escape capture, and that defendant formed a plan to pretend to surrender and then surprise the officers with the assault rifle.
Defendant's claim that there was insufficient evidence of premeditation and deliberation fails.
V
The Prosecution's Disclosure of the Audio Recording of Deputy Eoff's Interview Did
Not Run Afoul of Any Constitutional or Statutory Discovery Obligations, and the Trial
Court Properly Declined to Impose Discovery Sanctions or Give an "Adverse Inference"
Instruction
Defendant next claims that "the prosecution's late disclosure of inculpatory evidence" requires reversal for the following reasons: (1) "the late disclosure of this information violated his federal and state constitutional rights to Due Process and confrontation"; (2) "the trial court's denial of defense counsel's motion to exclude the statement separately violated [his] right to the effective assistance of counsel"; and (3) "the trial court's refusal to treat the parties evenly in the matter of instructions . . . violated his state and federal rights to a fair trial." As we shall explain, none of these contentions has merit.
The day after the shooting, Shasta County Sheriff's Sergeants John Hubbard and Tyler Thompson interviewed Deputy Eoff as part of an internal investigation regarding the use of force in apprehending defendant. The interview was recorded. During the interview, Eoff stated that he heard defendant say something like "I want to fight it out" shortly after the shooting. The sergeants prepared a written report of their internal investigation, a copy of which was disclosed to the prosecutor in this case, who in turn provided a copy to the defense prior to the preliminary examination. The written report did not include the statement attributed to defendant by Eoff.
At the preliminary examination, Deputy Eoff testified that the interview he gave "is more detailed and goes further step by step as to what occurred" than is described in the written report. Eoff was not asked to elaborate on those details.
The written report indicated that Deputy Eoff's interview had been recorded, and a few weeks prior to trial, defendant moved to compel the prosecution to provide him with a copy of that recording. The prosecution opposed the motion on the ground that neither the prosecution nor the Redding Police Department had a copy of the recording. The prosecution explained, "The case was investigated by the Redding Police Department, and they were not present during the internal interview of Deputy Eoff," which was conducted by the Shasta County Sheriff's Department. The prosecution further stated that the recording was part of Eoff's personnel file, and that they had been advised by Shasta County Counsel that absent Eoff's consent, the recording would not be made available "unless it is part of a court order pursuant to a Pitchess Motion." The trial court denied the motion to compel based on the prosecution's representation that it had provided all of the statutorily required materials in its possession, as well as any exculpatory material that it was required to provide under existing case law. The court explained that absent additional information about how the prosecution came to posses the written report, it could not determine whether Deputy Eoff waived his right to confidentiality with respect to the recording. The court advised the defense that if it wanted anything else from that file, it would need to bring a Pitchess motion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Three weeks later, on the second day of witness testimony at the jury trial, Deputy Eoff advised a member of the prosecution team that while he was searching defendant, defendant said, "I just wanted to fight it out." The next morning, Eoff gave the prosecution two copies of the audio recording of his interview with the Shasta County Sheriff's Department, and the prosecution provided one copy to the defense. That same morning, the prosecution advised the trial court that Eoff had reviewed the audiotape of the interview he gave the day after the shooting in preparing to testify at trial, and in doing so, realized that there were statements defendant made to him at the scene that were not included in the written report. The prosecution acknowledged that "[t]his audio has been a subject of discovery issues that the Court has already ruled on," and noted that the prosecution had never had possession of the tape until that morning, and that it had already provided a copy of the audio to the defense.
The defense requested a continuance so that it could review the recording and have it analyzed. The court decided without objection to proceed with the trial that morning, Thursday, January 31, 2013, to avoid wasting the time of jurors who had already arrived at the courthouse, and then to continue the matter until the following Tuesday, February 5, 2013.
When the proceedings resumed, the defense advised the court that it was in the process of comparing the statement attributed to defendant by Deputy Eoff to two contemporaneous recordings from the scene, and that additional time might be needed to clean up the audio on those recordings. The court advised the defense "that, within reason, I'm going to give you all the time you need to fully develop this information, confirm it, dispute it, and that kind of thing . . . ." The court further observed that while the statement attributed to defendant by Eoff was "an important piece of information," it did not "think it really changes the direction of the trial." Defense counsel responded that he did not disagree with the court's assessment.
A week later, the defense advised the court that despite diligent efforts, its audio expert had been unable to extract and make intelligible the conversation between Deputy Eoff and defendant at the scene. The defense then argued that Eoff's failure to timely inform the prosecution of defendant's incriminating statement violated defendant's right to due process of laws under the Fourteenth Amendment as well as Eoff's statutory obligations under section 1054, that such violations should be attributed to the prosecution, and that the court should sanction the prosecution by prohibiting Eoff from testifying, or in the alternative, excluding the newly disclosed statement.
The prosecution responded that although Eoff testified at the preliminary hearing that the interview he gave was more detailed than the written report, the defense never asked him to provide such details. In addition, the written report revealed the existence of the audio recording and "[i]t was always known to the defense that [the prosecutor] did not possess" it.
The trial court denied the defense's motion to preclude Deputy Eoff from testifying, or alternatively, from testifying about the newly disclosed statement. The court explained, "I don't believe that anything that's transpired so arises to the level of a 14th Amendment violation, a due process violation. I don't know of any process he's due that he's not been provided." The court continued, "[I]f there is a prejudicial effect to the defense, it is not so substantial as to warrant suppression of the evidence because . . . on balance it is an important statement but hardly breathtaking or overwhelming." Although the statement was "important . . . because it is the only direct statement attributable to [defendant]," the court observed that there was "a lot" or, as "some might claim, overwhelming circumstantial evidence to support what it is that [defendant] is claimed to have said." The court assured the defense that it would "get full opportunity to cross-examine Deputy Eoff, to question him in light of his history of statements about the case" and would be provided with "whatever time within reason is justifiable to assist [it] in bringing to bear the full resources of the defense on this issue."
At trial, DeputyEoff testified that he had not spoken to the prosecution about the statement he attributed to defendant until the week prior. He explained that he had forgotten about the statement until he listened to the audio recording of the internal investigation interview in order to refresh his memory for trial. He subsequently decided to release the audio recording despite his attorney telling him that doing so was contrary to standard practice.
A prosecutor has no federal constitutional duty to disclose inculpatory evidence. (People v. Burgener (2003) 29 Cal.4th 833, 875.) Evidence defendant stated he "wanted to fight it out" was not favorable to defendant; thus, the prosecution had no federal constitutional duty to disclose it. (Ibid.) Absent a duty to disclose the recording in the first place, the prosecution's actual disclosure of the same during trial did not violate defendant's federal constitutional rights.
Under the California statutory scheme, a prosecutor must disclose "[s]tatements of all defendants" and "[r]elevant written or recorded statements of witnesses . . . whom the prosecutor intends to call at the trial" if such information "is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies." (§ 1054.1, italics added.) The audio recording of Deputy Eoff's interview constitutes evidence of a statement of the defendant as well as a recorded statement of a witness (Eoff). Thus, the prosecution had a statutory duty to disclose it if it was in the prosecution's possession or the prosecution knew it to be in the possession of an investigating agency. (§ 1054.1.) The record reveals that the prosecution did not possess a copy of the recording until the day it disclosed the same to the defense. Nor was the prosecution aware of the statements attributed to defendant therein until the day before the recording itself was disclosed. Indeed, Eoff himself testified that he had forgotten about the defendant's statement until he listened to the audio recording of the internal investigation interview shortly before trial in order to refresh his memory. Moreover, the recording was not in the possession of the investigating agency, the Redding Police Department. Rather, it was in the possession of the Shasta County Sheriff's Department and was part of Eoff's personnel file. The prosecution satisfied its statutory obligation by disclosing the audio recording to the prosecution the same day the prosecution received it, and the day after learning of its contents.
Because the prosecution did not violate its discovery obligations related to the disclosure of the audio recording or the statements attributed to defendant therein, the trial court properly denied the defense's motion to exclude such evidence. It likewise properly refused the defense's request to give an "adverse inference" instruction based on the prosecution's alleged failure to timely disclose the same. Absent an untimely disclosure, there was no basis for giving such an instruction.
VI
The Trial Court Properly Denied the Defense's Request to Suppress the Inculpatory
Statement Attributed to Defendant by Deputy Eoff
Defendant next contends that evidence of his statement, "I want to fight it out," should have been excluded because it was the product of a custodial interrogation and he was not first advised of his Fifth Amendment rights. Again, he is mistaken.
The day after Deputy Eoff testified that defendant stated, "I want to fight it out," while Eoff was searching him, the defense moved to exclude such evidence on the theory that the statement was obtained in violation of his Miranda rights. The defense argued that while Eoff did not mention anyone questioning defendant during his trial testimony, in his recently disclosed recorded statement "Deputy Eoff stated that officers asked [defendant]: What were you thinking? What were you doing?" The prosecution responded that the motion was untimely because the defense had notice of both the statement and the supposed interrogation several days before Eoff testified. The defense asserted that the timing of the motion was excusable because it did not receive notice of the statement until after the trial had commenced, and as a result, had been distracted by being forced to do two or three things at once. The trial court decided to entertain the motion "for the sake of not having something go beyond this trial that can be dealt with in this trial."
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). --------
At the hearing on defendant's motion, Deputy Eoff testified that he did not recall any other officers engaging defendant in conversation while Eoff was attending to defendant, and that the only question he asked defendant was whether he had been shot anywhere else. The defense presented Eoff with a copy of a transcript of Eoff's recorded statement, prepared by the defense, which included the following statement: "The other officers were trying to engage him in, you know, conversation, you know, asking him why he did this and whatever." Eoff testified that he did not recall that exact statement or anyone asking defendant questions like "why did you do this and whatever else." He remembered defendant stating, "I want to fight it out," while Eoff was searching defendant's waistband and trying to determine if he had other injuries. The trial court denied defendant's motion to suppress the statement, finding that there was no evidence that it was made in response to the questioning referenced in Eoff's recorded statement.
After the jury returned its verdicts, defendant renewed his challenge in a motion for a new trial. The trial court found that the statement was properly admitted and denied the motion. In doing so, the court observed, "[I]n light of the overwhelming, and I mean to underscore that, overwhelming circumstantial evidence of intent, even if [defendant's statement] was erroneously admitted, such error was harmless beyond a reasonable doubt."
A criminal suspect's self-incriminating statements made during a custodial interrogation will be excluded under Miranda unless the suspect knowingly and voluntarily waived the Fifth Amendment privilege against self-incrimination. (People v. Lessie (2010) 47 Cal.4th 1152, 1156.) For Miranda to apply, " 'the suspect must be in "custody," and the questioning must meet the legal definition of "interrogation." ' " (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.)
In reviewing a claim on appeal that a statement was admitted in violation of a defendant's Miranda rights, ' " 'we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained." ' " (People v. Enraca (2012) 53 Cal.4th 735, 753.)
Here, there is no dispute that defendant was in custody and had not been advised of his Fifth Amendment rights when he made the incriminating statement. The issue here is whether the statement was the product of an interrogation. "Interrogation consists of express questioning or of words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." (People v. Johnson (1992) 3 Cal.4th 1183, 1224.) Here, the trial court found that defendant's statement, "I want to fight it out," was not made in response to the questioning referenced in Deputy Eoff's recorded statement. That finding is supported by substantial evidence. Eoff testified that defendant said, "I just wanted to fight it out," while Eoff was searching him and administering first aid, and that he did not recall any of the officers questioning defendant at that time. Moreover, as the trial court observed, defendant's statement, "I want to fight it out," is not necessarily responsive to the questions the officers assertedly were asking, namely, "What were you thinking," and "What were you doing."
In any event, any error in admitting the statement was harmless under any standard. As the trial court observed, the evidence of defendant's intent was overwhelming. Defendant's desire to "fight it out" was made obvious by his actions. Defendant fired an assault rifle in the direction of numerous police officers, ceased firing only after being shot numerous times himself, and subsequently attempted to regain control of his assault rifle. Defendant's statement merely confirmed what his actions had already revealed. On this record, we find that any error in admitting defendant's statement was harmless beyond a reasonable doubt.
VII
The Jury Was Properly Instructed on Reasonable Doubt
Defendant next claims that the trial court erred by instructing the jury pursuant to CALCRIM No. 225 regarding the determination of intent or mental state based on circumstantial evidence. More particularly, he asserts that the instruction lessened the prosecution's burden of proof because the jury could have construed it as providing that, unlike circumstantial evidence, direct evidence of defendant's guilt need not be proven beyond a reasonable doubt and may be relied upon even if the evidence was consistent with an innocent explanation. His claim is without merit because when considered in the context of the instructions as a whole, it is not reasonably likely that the jury construed CALCRIM No. 225 in such a manner.
"Under the due process clauses of the Fifth and Fourteenth Amendments, the prosecution must prove a defendant's guilt of a criminal offense beyond a reasonable doubt, and a trial court must so inform the jury." (People v. Aranda (2012) 55 Cal.4th 342, 356.) "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross (2008) 45 Cal.4th 58, 67-68.) "It is well established that the 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." (Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399]; see also People v. Mills (2012) 55 Cal.4th 663, 677.)
Here, the trial court instructed the jury in the language of CALCRIM No. 220, the standard reasonable doubt instruction, in pertinent part as follows: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. . . . [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. [¶] Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
The court also instructed the jurors in the language of CALCRIM No. 223 as follows: "Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. [¶] Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or a group of facts from which you may logically and reasonably conclude the truth of the fact in question. [¶] For example, if a witness testifies that he saw someone come inside wearing a raincoat and covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence."
Finally, as defendant notes, the court also instructed the jury in the language of CALCRIM No. 225 as follows: "An intent or mental state may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent and/or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent and/or mental state. [¶] If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and/or mental state, and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent and/or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
Defendant relies on People v. Vann (1974) 12 Cal.3d 220 (Vann) to support his assertion that the jury reasonably could have construed CALCRIM No. 225 as providing that the prosecution need only establish defendant's guilt beyond a reasonable doubt if the prosecution relies on circumstantial evidence and not if it relies on direct evidence. In that case, the trial court inadvertently "failed to include in its charge to the jury any specific instruction that the defendants were presumed to be innocent and that the prosecution had the burden of proving their guilt beyond a reasonable doubt." (Vann, at p. 225.) Although the jury was given an instruction that "states . . . that an accused cannot be convicted on circumstantial evidence except where such evidence proves the issue beyond a reasonable doubt," the court found the instruction inadequate because it "fails to tell the jurors that a determination of guilt resting on direct testimony must also be resolved beyond a reasonable doubt." (Id. at p. 226.) Under the circumstances of that case, where the trial court failed to give a standard reasonable doubt instruction, the court concluded that the instruction concerning circumstantial evidence might "have been interpreted by the jurors as importing the need of a lesser degree of proof where the evidence is direct and thus of a higher quality." (Id. at pp. 226-227.)
Unlike Vann, the jury in this case was given the standard reasonable doubt instruction. The trial court instructed the jury in the language of CALCRIM No. 220, which specifically provides that a defendant is presumed to be innocent and that the prosecution has the burden of proving his guilt beyond a reasonable doubt. As a result, defendant's reliance on Vann is wholly misplaced.
The circumstances of this case are more akin to those in People v. Solomon (2010) 49 Cal.4th 792 (Solomon). Like here, the defendant in Solomon claimed "that the circumstantial evidence instructions undermined the requirement of proof beyond a reasonable doubt as applied to direct evidence, in violation of state law and his constitutional rights to due process and jury trial." (Id. at p. 826.) He argued that "because the instructions omitted any reference to direct evidence, jurors would have believed that a fact essential to guilt that was based on direct, rather than circumstantial, evidence need not be proved beyond a reasonable doubt." (Ibid.) In concluding that the defendant's argument "finds no support," our Supreme Court observed, "the court instructed that both direct and circumstantial evidence were acceptable means of proof. It also explained that a defendant is presumed innocent until proved to the contrary ' and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.' (CALJIC No. 2.90.)" (Ibid.) The court held that "[t]hese instructions, coupled with the directive to 'consider the instructions as a whole and each in light of the others,' fully apprised the jury that the reasonable doubt standard applied to both forms of proof. (Ibid.)
Like Solomon, here, the trial court instructed the jury that both direct and circumstantial evidence were acceptable means of proof, a defendant is presumed innocent until proven guilty beyond a reasonable doubt, and "[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." In addition, the trial court in this case told the jury, "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt." These instructions, coupled with the directive to "[p]ay careful attention to all of these instructions and consider them together," fully apprised the jury that the reasonable doubt standard applied to both circumstantial and direct evidence. (Solomon, supra, 49 Cal.4th at p. 826.)
VIII
The Trial Court Properly Instructed the Jury on the Definition of "Peace Officer"
Defendant next asserts that "[t]he ten separate 15 year-to-life terms imposed for the attempted murder of a peace officer charges . . . must be stricken because the trial court improperly directed a guilty verdict on each of these charges" by instructing the jury that " '[a] person who is employed as a California Highway Patrol Officer or Shasta County Sheriff's Deputy is a peace officer.' " Again, we disagree.
The trial court did not effectively or otherwise direct a guilty verdict. Rather, "it merely instructed the jury on a point of statutory law -- a point not open to dispute -- that a [California Highway Patrol Officer and a Shasta County Sheriff's Deputy are] peace officer[s]." (People v. Brown (1988) 46 Cal.3d 432, 443; see also § 830.1, subd. (a), § 830.2, subd. (a).) The instruction did not suggest that the victims were peace officers as a matter of law; it merely instructed pursuant to the unquestionable clear terms of the relevant statutes that California Highway Patrol Officers and Shasta County Sheriff's Deputies are peace officers. (Brown, at p. 444, fn. 6.) The jury was left to make all essential factual determinations, including whether the victims were California Highway Patrol Officers or a Shasta County Sheriff's Deputy. (Id. at p. 444.) Defendant's claim that the trial court improperly instructed the jury on the definition of "peace officer" fails.
IX
The Jury's Finding That Deputy Eoff Was a Peace Officer Was Supported By Substantial
Evidence
Lastly, defendant claims that the term of 15 years to life imposed on count 1 must be stricken because there was insufficient evidence to support the jury's finding that Deputy Eoff was a peace officer. More particularly, he asserts that there was no evidence that Eoff had been "appointed by the chief of police" within the meaning of section 830.1, subdivision (a), or that his duties were "custodial" within the meaning of section 830.1, subdivision (c). As we shall explain, no such evidence was required.
A person who attempts to murder a peace officer, and who knows or reasonably should know that the victim is a peace officer engaged in the performance of his or her duties is subject to increased punishment. (§ 664, subds. (e) & (f).) "Peace officer" includes "[a]ny sheriff, undersheriff, or deputy sheriff, employed in that capacity, of a county . . . ." (§ 830.1, subd. (a).) Deputy Eoff's testimony that he was employed as a resident deputy by the Shasta County Sheriff's Department at the time of the shooting provided sufficient evidence to support the jury's finding that he was a peace officer.
Defendant's assertion that a deputy sheriff of a county does not qualify as a peace officer unless he or she has been appointed by the chief of police or the chief, director, or chief executive of a public safety agency is based on a tortured construction of subdivision (a) of section 830.1. That subdivision provides in pertinent part: "Any sheriff, undersheriff, or deputy sheriff, employed in that capacity, of a county, any chief of police of a city or chief, director, or chief executive officer of a consolidated municipal public safety agency that performs police functions, any police officer, employed in that capacity and appointed by the chief of police or chief, director, or chief executive of a public safety agency, of a city, any chief of police, or police officer of a district, including police officers of the San Diego Unified Port District Harbor Police, authorized by statute to maintain a police department, any marshal or deputy marshal of a superior court or county, any port warden or port police officer of the Harbor Department of the City of Los Angeles, or any inspector or investigator employed in that capacity in the office of a district attorney, is a peace officer." (Italics added.) Defendant relies on the italicized passage above in support of his claim that the prosecution was required to prove that Deputy Eoff was appointed by the chief of police or the chief, director, or chief executive of a public safety agency. That passage plainly is limited to police officers, and does not apply to deputy sheriffs.
Defendant's claim that the prosecution was required to prove that Deputy Eoff was employed to perform duties relating to custodial assignments is based on an equally tortured construction of subdivision (c) of section 830.1, which provides: "Any deputy sheriff of the County of Los Angeles, and any deputy sheriff of the Counties of Butte, Calaveras, Colusa, Glenn, Humboldt, Imperial, Inyo, Kern, Kings, Lake, Lassen, Mariposa, Mendocino, Plumas, Riverside, San Benito, San Diego, San Luis Obispo, Santa Barbara, Santa Clara, Shasta, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity, Tulare, Tuolumne, and Yuba who is employed to perform duties exclusively or initially relating to custodial assignments with responsibilities for maintaining the operations of county custodial facilities, including the custody, care, supervision, security, movement, and transportation of inmates, is a peace officer whose authority extends to any place in the state only while engaged in the performance of the duties of his or her respective employment and for the purpose of carrying out the primary function of employment relating to his or her custodial assignments, or when performing other law enforcement duties directed by his or her employing agency during a local state of emergency." Subdivision (c) provides that custodial deputies of the type described therein are peace officers, and then goes on to describe the scope and limitations of such deputies' authority as peace officers. (See Stanislaus County Deputy Sheriffs' Ass'n v. County of Stanislaus (2016) 2 Cal.App.5th 368, 374.) It in no way limits the definition of peace officers for purposes of determining whether increased punishment is warranted under section 664, subdivisions (e) and (f). Moreover, the evidence adduced at trial established that Deputy Eoff was not "employed to perform duties exclusively or initially relating to custodial assignments with responsibilities for maintaining the operations of county custodial facilities," thus, subdivision (c) has no application to the present case. Ample evidence supported the jury's finding that Deputy Eoff was a peace officer.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Renner, J.