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People v. Thietje

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
Jun 19, 2018
No. C078175 (Cal. Ct. App. Jun. 19, 2018)

Opinion

C078175

06-19-2018

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ROY THIETJE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F7786)

Defendant William Thietje deliberately drove a van into the back of his ex-girlfriend's unoccupied car, propelling the car toward a group of people and provoking one of those persons to fire a shotgun into the van, killing defendant's associate. A jury convicted defendant of murder (under the provocative act murder doctrine), assault with a deadly weapon, hit and run, corporal injury to a cohabitant, assault with force likely to cause great bodily injury, and false imprisonment by violence. The trial court sentenced defendant to an indeterminate term of 15 years to life in prison and a determinate term of 16 years 4 months.

Defendant now contends (1) the trial court erred in refusing to grant a continuance to allow him to retain new counsel; (2) it was error to not instruct the jury that defendant's alleged provocative act had to be something beyond an assault; (3) the trial court should have instructed the jury that defendant was not guilty of murder if the conduct of the person who fired the fatal shot was an independent criminal act; (4) insufficient evidence supports the jury's finding that defendant harbored implied malice and that his actions proximately caused the victim's death; (5) the trial court abused its discretion in failing to investigate juror misconduct after a juror reported a concern about safety; (6) insufficient evidence supports the finding that defendant had the present ability to inflict injury and intended to assault the victim; and (7) cumulative error rendered the trial unfair.

We conclude that (1) the trial court did not abuse its discretion in denying defendant's motion for a continuance; (2) the trial court erred in not instructing the jury that it must find an act that goes beyond what is necessary to accomplish the underlying crime, but the error is harmless beyond a reasonable doubt; (3) the trial court erred in refusing to give the independent criminal act instruction, but the error is harmless in light of the other instructions given; (4) a reasonable trier of fact could find defendant guilty of murder beyond a reasonable doubt; (5) the trial court did not abuse its discretion in not conducting a further jury inquiry because it did not have information suggesting that a juror could not perform his or her duty to render an impartial and unbiased verdict; (6) substantial evidence supports the assault conviction in count 3; and (7) having found no prejudicial error, we reject defendant's cumulative error claim. We will affirm the judgment.

BACKGROUND

G. was defendant's live-in girlfriend. Defendant physically abused and threatened to kill G. during their relationship. G. left defendant in October 2012.

On October 27, 2012, G.'s Cadillac was parked outside M. Lansdowne's house, in front of a chain link fence. At about midnight, T. B. saw a van ram the Cadillac and speed off. Lansdowne and G. went outside to investigate after they heard the crash. Neighbor D. H. also came outside. The Cadillac was pushed halfway through the chain link fence.

G. recognized the van and said it was her ex-boyfriend's. She went inside the house. At trial, G. denied that she asked defendant to go to Lansdowne's house.

The van, its engine revving and travelling at a high rate of speed, returned a few minutes later. Defendant was driving. There were three people with defendant.

Defendant drove "pedal to the metal, crashing into the Cadillac" and the collision caused the Cadillac to rock back and forth. Everyone was panicked and "freaking out." T. B., D. H. and Lansdowne asked defendant to leave. They said G. was not going to come outside and they did not want any problems.

When defendant refused to leave, T. B. walked to the driver's side of the van to talk with defendant. He picked up a stick because he felt threatened. He did not know whether the people in the van were going to fight them and if they had weapons. Lansdowne assumed the people in the van could have weapons.

T. B. told defendant to leave. Defendant yelled that he was going to hurt everyone there, especially T. B., whom defendant repeatedly called a pejorative term. Defendant screamed for G. to come outside. He said there was going to be a problem if G. did not come out. He stepped on the gas, threatened to run the people in the yard over, and caused the van to lunge forward.

Lansdowne went inside to get his shotgun. He loaded the shotgun and put the safety on. He heard the engine of the van "rev up" as he stepped out of the house. Defendant backed the van up, revved the engine and drove forward. T. B. turned around and ran. The van hit the Cadillac, making a loud sound, and pushed the Cadillac through the fence and into the yard. T. B. was in the path of the Cadillac. He felt the bumper of the car touch him. If the Cadillac had continued forward, it would have run T. B. over and ended up a foot from the door of the house. Lansdowne was concerned the van would also hit him. He moved to his right to get out of the way and aimed for defendant's chest to stop the van. He fired two shots in close succession. The van stopped. The Cadillac was about 19 feet from the front door of the house. Defendant backed out of the yard and took off.

At trial, Lansdowne denied that the van was backing out of the driveway at the time he fired his shotgun. T. B.'s account was consistent, saying Lansdowne fired his shotgun after defendant rammed the Cadillac and pushed it into the yard. G. likewise testified she heard two gunshots a little bit after the sound of a collision.

B. Halbert died of a single gunshot wound to the head. He was in the rear passenger seat behind defendant. Defendant suffered an injury to his left ear and superficial wounds to his face.

California Highway Patrol Officer Simon Hamann opined that there were at least two collisions between the van and the Cadillac. He concluded based on the physical evidence that the van, with its tires spinning, collided with the Cadillac and pushed the Cadillac toward the house. The Cadillac was pushed 13.6 feet, bending a pole for the chain link fence. During a separate collision, the van accelerated and pushed the Cadillac forward while the van was being steered to the left. The driver of the van kept his foot on the accelerator the entire time the van was pushing the Cadillac. The Cadillac was moved 5.82 feet. Making certain assumptions, Officer Hamann opined it would have taken two and a half seconds to move the Cadillac 5.82 feet and the van was travelling about 8 miles an hour. Officer Hamann testified, however, that he did not know whether the assumptions he made to calculate speed and time were true.

V. Colacino was granted immunity in relation to his testimony. He was also interviewed by Deputy Sheriff Gene Randall on October 29, 2012. Colacino's testimony and pretrial statement indicate the following: Defendant, Colacino, Halbert and D. Handmore went looking for G. on the night of the shooting. Defendant drove the van. When they got to the house, defendant "punched it backwards and nailed the car." They left to put water in the van's radiator and returned to slash the tires of the Cadillac and fight with the men who were at the house. Colacino had a folding knife. He gave the knife to Halbert. Defendant argued with a man who was outside the van. He threatened the man and repeatedly challenged the man to fight. He rammed the Cadillac and pushed it through the fence, almost into the house. Colacino heard the engine revving and the tires spinning. There were people in the yard. Someone in the van yelled "gun." Colacino heard a gunshot and ducked.

During his October 29, 2012 interview, Colacino provided an ambiguous statement about when he heard the gunshots. His trial testimony on the subject was inconsistent. He claimed he could not remember because he was under the influence of drugs and intoxicated on the night of the shooting. He also claimed he had a learning disability and had trouble comprehending.

The People presented evidence that defendant engaged in witness intimidation or tampering with regard to G. and Colacino and witness intimidation or tampering by defendant's supporters in relation to G., T. B., Lansdowne, Colacino, and two other witnesses.

The jury convicted defendant of murder (Pen. Code, § 187, subd. (a) -- count 1), assault with a deadly weapon (§ 245, subd. (a)(1) -- counts 2 [T. B.] and 3 [Lansdowne]), hit and run (Veh. Code, § 20002, subd. (a) -- count 4), corporal injury to a cohabitant (§ 273.5, subd. (a) -- counts 5, 7 and 8), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4) -- counts 6 and 9) and false imprisonment by violence (§§ 236, 237 -- count 10). With regard to counts 5, 6 and 7, the jury found true the special allegation of domestic violence with great bodily injury (§ 12022.7, subd. (e)). Defendant admitted the special allegation that he served a prison sentence for a 2009 conviction and did not remain free of prison custody for a period of five years after the conclusion of that prison term and committed an offense resulting in a felony conviction during that period within the meaning of section 667.5, subdivision (b). Defendant also admitted the special allegation that at the time of the commission of the offenses charged in counts 1, 2 and 3 he was out on bail in another case, within the meaning of section 12022.1. The trial court sentenced defendant to 15 years to life in prison on count 1 and to a total determinate term of 16 years 4 months on the other counts.

Undesignated statutory references are to the Penal Code.

DISCUSSION

I

Defendant contends the trial court erred in refusing to grant a continuance to allow him to retain new counsel.

A

After the verdict, defendant's trial counsel David Nelson asked for extra time to prepare a motion for new trial based on alleged juror misconduct. The trial court set a date for hearing posttrial motions and for sentencing, but on the day set for the hearing, attorney Michael Borges informed the trial court that defendant was interested in retaining him to file a motion for new trial and to represent defendant at sentencing. Mr. Borges requested a 60-day continuance so that defendant's supporters could come up with the money for his retainer. Mr. Nelson did not object to a continuance, saying he was not prepared to proceed with sentencing because he received the probation report less than five court days prior and had not reviewed the report with defendant.

The prosecutor objected to a continuance, saying "I don't believe an attorney coming in to specially appear who has not been retained is good cause to continue this hearing." She added that the victims were entitled to a prompt and final conclusion of the case. The prosecutor asked the trial court to sentence defendant within the next two weeks because G. was set to be sentenced in another matter soon after that and G.'s sentencing was "pending the final outcome" in defendant's case.

The trial court indicated it was not inclined to continue the matter 60 days based on a possibility that defendant could retain Mr. Borge. But the trial court granted Mr. Nelson's request for a continuance to review the probation report with defendant. Although it did not continue the matter for three weeks as Mr. Nelson requested, the trial court continued the matter two weeks. It observed that the continuance would give defendant and his supporters time to retain Mr. Borges. It admonished Mr. Borges to notify defendant's supporters that urgency was needed in the matter. And it warned that the continuance was not an indication that it would grant a request for substitution of counsel.

On the continued hearing date, Mr. Borges advised the trial court that although they were "very close," arrangements to retain him had not yet been completed. Mr. Borges requested a four-week continuance.

The prosecutor objected to another continuance. She said if the trial court granted a further continuance there was no guarantee Mr. Borges could be retained and if he was retained, Mr. Borges did not say he would be ready to proceed in four weeks. She again asserted the victims' rights to have the case finalized.

Mr. Nelson told the trial court defendant had lost confidence in him and wanted to hire another attorney before sentencing. He affirmed that defendant wished to dismiss him. He urged that there were significant issues concerning juror misconduct and the admission of witness intimidation evidence at trial. He added there were issues "other counsel may want to explore" that he was not prepared to do personally, and it would be in defendant's best interest to retain other counsel before sentencing because certain remedies could not be explored once the trial court imposed a sentence. Mr. Nelson requested a continuance but did not specify how much time defendant wanted.

The trial court acknowledged that defendant could discharge his retained counsel at any time. It did not deny defendant's request to discharge Mr. Nelson, but warned defendant that firing Mr. Nelson could leave defendant unrepresented because the trial court may not permit Mr. Borges to substitute in as counsel. The trial court explained that it must consider the interests of the victims in deciding defendant's request for a continuance, and the victims had a right to a speedy judgment and sentencing. The trial court noted it had been three months since the verdict, and the trial court had previously explained why time was of the essence. Given the uncertainty of whether or when Mr. Borges could be retained, the trial court said it could not keep rescheduling sentencing. The trial court said defendant's effort to dismiss Mr. Nelson was for the purpose of frustrating the administration of justice.

When Mr. Borges declined to make a general appearance that day, the trial court indicated it would allow defendant to represent himself or appoint substitute counsel; however, appointed counsel must proceed that afternoon. The trial court subsequently reiterated that defendant's efforts to substitute new counsel were belated and for the purpose of frustrating the interests of justice and undermining the rights of others. The trial court said defendant and his supporters should have acted with urgency in retaining substitute counsel if they believed defendant's trial counsel had been deficient, but they did not do that. Therefore, the trial court would not continue the matter further.

Defendant indicated he wanted to dismiss Mr. Nelson and have the trial court appoint substitute counsel. Pursuant to a suggestion by Mr. Nelson and the prosecutor, the trial court contacted the attorney who initially represented defendant in the case. The trial court was willing to appoint defendant substitute counsel without granting a further continuance, but defendant said he would proceed with Mr. Nelson. After confirming defendant's decision to proceed with Mr. Nelson, and Mr. Nelson's willingness to continue representing defendant, the trial court heard defendant's new trial motion and sentenced him.

B

A defendant has the right to retain counsel of his choice as part of his constitutional rights to effective assistance of counsel and due process of law. (People v. Courts (1985) 37 Cal.3d 784, 789-790 (Courts); People v. Lara (2001) 86 Cal.App.4th 139, 152.) The right to retain counsel of choice includes the right to discharge, with or without cause, an attorney the defendant hired but no longer wishes to retain. (People v. Maciel (2013) 57 Cal.4th 482, 512 (Maciel); People v. Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz).) But the right to discharge retained counsel is not absolute. (Maciel, supra, 57 Cal.4th at p. 512.)

A trial court may deny a motion to discharge retained counsel in its discretion if discharge will result in significant prejudice to the defendant or if the motion is not timely, i.e., if it will result "in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case." (People v. Crovedi (1966) 65 Cal.2d 199, 208; see Maciel, supra, 57 Cal.4th at p. 512; Ortiz, supra, 51 Cal.3d at p. 983; People v. Munoz (2006) 138 Cal.App.4th 860, 869 [standard set forth in Ortiz applies to a post-conviction motion to relieve retained counsel].) The trial court must consider the totality of the circumstances in evaluating whether a motion to discharge retained counsel is timely. (Maciel, supra, 57 Cal.4th at p. 513.) And when a defendant seeks to dismiss retained counsel, the right to counsel of one's choice " 'must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.' " (Courts, supra, 37 Cal.3d at p. 790; see United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 152 [165 L.Ed.2d 409, 421]; People v. Keshishian (2008) 162 Cal.App.4th 425, 429 (Keshishian).)

On appeal, the defendant bears the burden of establishing a clear abuse of discretion in denying his or her request for a change of counsel. (People v. Murphy (1973) 35 Cal.App.3d 905, 915 (Murphy).) Under the abuse of discretion standard of review, "the [defense] showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.] A trial court's exercise of discretion will not be disturbed unless it appears that . . . the court['s ruling] exceeds the bounds of reason, all of the circumstances being considered. [Citation.]" (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)

Continuances are granted in a criminal proceeding only upon a showing of good cause. (§ 1050, subd. (e).) A trial court has broad discretion to determine whether good cause exists to grant a continuance. (People v. Beames (2007) 40 Cal.4th 907, 920; People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The party seeking a continuance must demonstrate that counsel and the party acted with due diligence. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1036; Jenkins, supra, 22 Cal.4th at p. 1037; People v. Johnson (2013) 218 Cal.App.4th 938, 942.) And the party challenging the trial court's denial of a motion for continuance bears the heavy burden of establishing a clear abuse of discretion. (Beames, supra, 40 Cal.4th at p. 920; People v. Froehlig (1991) 1 Cal.App.4th 260, 265.) We look at the circumstances of each case, particularly the reasons presented to the trial judge at the time the request for continuance was denied, in deciding whether the trial court's denial of a continuance was so arbitrary as to deny due process. (Courts, supra, 37 Cal.3d at p. 791.)

The lateness of a request for continuance can be a significant factor justifying denial, absent compelling circumstances to the contrary. (Courts, supra, 37 Cal.3d at p. 792, fn. 4; People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) Here, nothing suggests that defendant belatedly discovered the facts underlying a potential motion for a new trial. Yet he did not inform the trial court of his intent to substitute Mr. Nelson until the sentencing. No explanation was given for defendant's day-of-sentencing request. The record also does not contain any written notice that defendant would seek to continue the sentencing hearing or a show of good cause for defendant's failure to file a written notice.

Defendant now argues that he could not be expected to present a written request for new counsel before the sentencing date because he was functionally illiterate. While defendant's trial counsel represented that defendant was functionally illiterate, defendant's cell phone records show he was capable of communicating in writing. Defendant did not explain in the trial court why he, Mr. Nelson or Mr. Borges could not inform the trial court of his wish to substitute counsel before the sentencing date. Nevertheless, the trial court gave defendant an additional two weeks to retain Mr. Borges. Thus, defendant had about three months to retain substitute counsel but failed to do so.

There was no assurance that defendant and his supporters would retain Mr. Borges. And defendant did not demonstrate that he and his supporters had acted with due diligence, even though the trial court admonished them two weeks earlier that they had to act with urgency if they wanted to retain Mr. Borges. Further, as the prosecutor pointed out, even if the trial court were to grant defendant's request for an additional continuance, there was no showing when Mr. Borges would be ready to proceed. Mr. Borges did not say he would be ready to proceed with posttrial motions and sentencing in four weeks' time or how much time he needed to prepare posttrial motions if he was retained. Thus, the trial court was faced with the possibility that four months after the verdict, the matter would be further delayed because defendant's supporters could not raise the money to retain Mr. Borges and because new counsel would require time to prepare. Under those circumstances, the trial court reasonably concluded it could not repeatedly continue sentencing on the chance that Mr. Borges would be retained to represent defendant. (See Keshishian, supra, 162 Cal.App.4th at p. 429; Murphy, supra, 35 Cal.App.3d at pp. 914-916; People v. Parks (1964) 230 Cal.App.2d 805, 810-811 (Parks).)

Defendant attempts to place the burden of eliciting the existence of good cause on the trial court, but the burden was on defendant to affirmatively prove the grounds for his request. (Cal. Rules of Court, rule 4.113; People v. Stump (1971) 14 Cal.App.3d 440, 442-443.) Denial of continuance is proper where, as here, the prospect of hiring private counsel was still speculative at the time defendant moved for a continuance. (Courts, supra, 37 Cal.3d at p. 791, fn. 3; Murphy, supra, 35 Cal.App.3d at pp. 914-916; Parks, supra, 230 Cal.App.2d at pp. 810-811.)

Additionally, in California, victims have a right to a prompt conclusion of the case. (Cal. Const., art. I, § 28, subd. (b)(9); § 679.02, subd. (a)(10).) By the time of the continued sentencing date, over two years had elapsed since the commission of the charged offenses. The prosecutor raised a concern affecting another case: a continuance beyond two weeks in defendant's case would postpone the sentencing of G. in a separate matter.

Defendant argues there is no support in the record for the trial court's statement that the request for continuance was a ploy to undermine the rights of the victims and frustrate the interests of justice. But the record shows defendant repeatedly requested sentencing continuances without notice and without a showing of good cause. We cannot say the comments by the trial judge, who was in the best position to observe defendant and his counsel, were arbitrary.

The trial court properly balanced defendant's right to choice of counsel with the rights of the victims and the interest of the People in a prompt conclusion of the case. (See Murphy, supra, 35 Cal.App.3d at p. 915.) The trial court did not abuse its discretion in denying defendant's motion for a further continuance.

II

Defendant asserts the trial court erred in not instructing the jury that defendant's alleged provocative act had to be something beyond an assault.

The People prosecuted defendant for murder under the provocative act murder doctrine. Provocative act murder describes a type of murder in which, during the commission of a crime, someone other than the defendant is provoked by the defendant's conduct into a response that results in death. (People v. Concha (2009) 47 Cal.4th 653, 663 (Concha); Pizano v. Superior Court (1978) 21 Cal.3d 128, 132-133; People v. Lima (2004) 118 Cal.App.4th 259, 261.) The underlying crime in this case is defendant's assault with a deadly weapon, the van. When the underlying crime does not involve an intent to kill, the provocative act must be something beyond that necessary to commit the underlying crime. (People v. Briscoe (2001) 92 Cal.App.4th 568, 582-583 (Briscoe); accord People v. Baker-Riley (2012) 207 Cal.App.4th 631, 636-638; In re Aurelio R. (1985) 167 Cal.App.3d 52, 59.) The Court of Appeal in In re Aurelio R. explained that where the underlying crime does not inherently involve an intent to kill, requiring proof of an additional intentional and provocative act ensures the defendant acted with "an intent to kill or at least an intent to commit life-threatening acts" before he or she can be held liable for a death resulting from a third person's conduct. (In re Aurelio R., supra, 167 Cal.App.3d at pp. 59-60.) The crime of assault with a deadly weapon does not require a finding of intent to kill. (People v. Williams (2001) 26 Cal.4th 779, 788, 790 (Williams); CALCRIM No. 875.)

Counsel and the trial court discussed instructing the jury on provocative act murder with CALCRIM No. 560. That instruction provided, in pertinent part, "A provocative act is an act: [¶] 1. [That goes beyond what is necessary to accomplish the <insert underlying crime>;] [¶] [AND [¶] 2.] Whose natural and probable consequences are dangerous to human life, because there is a high probability that the act will provoke a deadly response." (CALCRIM No. 560 (2014 ed.) p. 297.) Counsel agreed it was not necessary to include the bracketed portion of the instruction. The trial court concurred, reasoning that using a van to propel a car, with people present and at risk of being hit, indicated a wanton disregard for human life and was conduct sufficiently provocative to support a finding of implied malice; thus, nothing more was needed to support an implied malice theory. But as we have explained, because assault with a deadly weapon does not require a finding of intent to kill, the trial court should have instructed with the bracketed language. (In re Aurelio R., supra, 167 Cal.App.3d at pp. 59-60; Bench Notes to CALCRIM No. 560 (2014 ed.) p. 300.)

An instructional error that omits an element of an offense is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18 . (People v. Gonzalez (2012) 54 Cal.4th 643, 662-663 (Gonzalez); People v. Flood (1998) 18 Cal.4th 470, 502-503.) Under that standard, reversal is not required when the record shows beyond a reasonable doubt that the error did not contribute to the jury's verdict. (Flood, at p. 504; Neder v. United States (1999) 527 U.S. 1, 18-19 [144 L.Ed.2d 35, 53].)

As instructed, the jury could not convict defendant of murder without finding that he acted with malice because the trial court told the jury the following: a murder conviction requires a finding that defendant acted with a specific intent and/or mental state; the provocative act murder doctrine requires proof that defendant knew the natural and probable consequences of his provocative act were dangerous to human life and then acted with conscious disregard for life; and defendant had to intentionally commit an act whose natural and probable consequences were dangerous to human life because there was a high probability that the act would provoke a deadly response. The instructions given required the jury to find that defendant harbored malice. Malice is express when the defendant harbors an intent to kill, and malice is implied when the defendant willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses. (Gonzalez, supra, 54 Cal.4th at p. 653; Concha, supra, 47 Cal.4th at p. 660.) Thus, the jury had to have found that defendant harbored an intent to kill or at least an intent to commit life-threatening acts. (In re Aurelio R., supra, 167 Cal.App.3d at pp. 59-60.) Under the circumstances, the failure to instruct the jury that a provocative act is an act that goes beyond what is necessary to accomplish the crime of assault with a deadly weapon is harmless beyond a reasonable doubt. (People v. Ervin (2000) 22 Cal.4th 48, 91; People v. Garrison (1989) 47 Cal.3d 746, 789-790; People v. Lyons (1991) 235 Cal.App.3d 1456, 1462-1463.) Because we have addressed defendant's claim on the merits, we do not consider his forfeiture and ineffective assistance of counsel claims.

III

Defendant also argues the trial court should have instructed the jury that defendant was not guilty of murder if the conduct of the person who fired the fatal shot was an independent criminal act.

An independent intervening cause absolves the defendant of criminal liability. (People v. Cervantes (2001) 26 Cal.4th 860, 871 (Cervantes).) An intervening cause is independent when it is unforeseeable. (Ibid.) A self-defensive killing is not an independent intervening cause of death when it is a reasonable response to an intentional act of the defendant. (Gonzalez, supra, 54 Cal.4th at p. 658; Concha, supra, 47 Cal.4th at p. 662; People v. Armitage (1987) 194 Cal.App.3d 405, 421.)

The Bench Notes to CALCRIM No. 560 provided that if there is evidence that the actual perpetrator may have committed an independent criminal act, the trial court should give the following instruction upon request: "A defendant is not guilty of murder if the killing of <insert name of decedent> was caused solely by the independent criminal act of someone else. An independent criminal act is a free, deliberate, and informed criminal act by a person who is not acting with the defendant." (CALCRIM No. 560 (2014 ed.) p. 298; see Bench Notes to CALCRIM No. 560 (2014 ed.) p. 300, italics omitted.) Defendant's trial counsel requested that instruction, arguing Lansdowne's conduct was an independent criminal act because he did not shoot at the van as defendant was driving toward the Cadillac, he shot at the van as defendant was backing out of the driveway and thus had no legal justification to use deadly force. The trial court declined to give the independent criminal act instruction. It agreed with the People that Lansdowne's actions were not independent of the assault by defendant.

We conclude the instruction should have been given. There were out-of-court statements by Colacino indicating that Lansdowne shot at the van while defendant was backing out of the driveway. Those statements were substantial evidence that Lansdowne's act in firing the gun was independent of defendant's assault. But the error in declining to give the requested independent criminal act instruction is harmless under any standard in light of the other instructions given. (People v. Roberts (1992) 2 Cal.4th 271, 322; People v. Burnett (2003) 110 Cal.App.4th 868, 879.)

The trial court told the jury that in order to convict defendant of murder, the jury must find that Lansdowne killed Halbert in response to defendant's provocative act and that Halbert's death was the natural and probable consequence of defendant's provocative act. Those instructions relate to whether defendant's conduct proximately caused Halbert's death. (Gonzalez, supra, 54 Cal.4th at pp. 655-657; Cervantes, supra, 26 Cal.4th at p. 867.) The trial court explained to the jury that Halbert's death was the natural and probable consequence of defendant's provocative act if a reasonable person in defendant's position would have foreseen that there was a high probability that his or her act could begin a chain of events resulting in someone's death. Thus, the jury was required to determine whether it was reasonably foreseeable that defendant's act would provoke a lethal response. Lansdowne shooting at the van could not have been a superseding cause if it was a reasonably foreseeable result of defendant's conduct. (Cervantes, supra, 26 Cal.4th at pp. 868-869, 871.) The trial court further instructed that Halbert's death was the natural and probable consequence of defendant's provocative act if Halbert's death would not have happened if the defendant had not committed the provocative act. The instructions given allowed defense counsel to argue that defendant was not guilty of murder because Lansdowne's conduct was an independent criminal act. In particular, defendant's trial counsel argued to the jury that defendant had ended the underlying crime and was backing away when Lansdowne shot at the van, and Lansdowne armed himself and intended to kill someone even though no one was in danger at the time he fired at the van. Under the circumstances, the error in not giving the independent criminal act instruction is harmless. (See People v. Fiu (2008) 165 Cal.App.4th 360, 369-375.)

IV

Defendant further asserts there is insufficient evidence to support the jury's finding that defendant harbored implied malice and that his actions proximately caused the victim's death.

In determining whether sufficient evidence supports a conviction, " 'we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.]' " (People v. Nelson (2011) 51 Cal.4th 198, 210.) We do not reweigh evidence or reevaluate a witness's credibility. (Ibid.) The effect of this standard of review is that a defendant challenging the sufficiency of the evidence to support his conviction bears a heavy burden on appeal. (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.)

Applying the above standard, we conclude a reasonable trier of fact could find defendant guilty of murder beyond a reasonable doubt. The evidence showed that defendant's conduct set in motion circumstances "fraught with grave and inherent danger to life" sufficient to provoke a lethal response by Lansdowne which permitted a rational jury to find that defendant acted with malice. (Briscoe, supra, 92 Cal.App.4th at p. 583.) D. H. reported that someone in the van had threatened to kill people. Defendant said he was going to hurt everyone there, especially T. B. He was clearly determined to start a fight. His threatening words were accompanied by deliberate, life-endangering actions. He revved the van's engine and caused it to lunge forward. There were people in the yard. Nevertheless, defendant rammed the Cadillac, violently pushing it through the fence and into the yard. T. B. was in the path of the Cadillac. He felt the bumper of the Cadillac touch him as he was running away. The Cadillac would have run T. B. over if it had continued forward. While abandoning a conflict may indicate a lack of criminal intent (Gonzalez, supra, 54 Cal.4th at p. 659) and defendant argued to the jury that he was backing up the van to leave when Lansdowne shot into the van, the jury rejected defendant's version of events when it convicted defendant of murder. The jury could rationally find beyond a reasonable doubt that defendant intentionally drove the van into the Cadillac, propelled the Cadillac toward T. B. -- an act, the natural and probable consequences of which were dangerous to human life -- and deliberately acted with conscious disregard for the danger to life his act posed.

The jury could also rationally find beyond a reasonable doubt that Halbert's death was the natural and probable consequence of defendant's provocative act. (Gonzalez, supra, 54 Cal.4th at p. 658; Armitage, supra, 194 Cal.App.3d at p. 421.) T. B. testified that defendant's ramming the Cadillac caused everyone to be panicked and "freaked out." Defendant propelled the Cadillac toward T. B. T. B. and Lansdowne believed defendant was going to kill T. B. It was reasonably foreseeable under the circumstances that defendant's conduct would provoke a lethal response. Lansdowne shot at the van because he thought defendant was about to run T. B. over. Lansdowne acted in response to defendant's provocative act. Lansdowne denied that the van was backing out of the driveway when he fired his shotgun. T. B. and G.'s testimony corroborate Lansdowne's account. Lansdowne's conduct after the shooting was consistent with the conclusion that he had acted lawfully. (Gonzalez, supra, 54 Cal.4th at p. 659.) He unloaded his weapon, remained at the scene and cooperated with police.

V

Defendant next argues the trial court abused its discretion in failing to investigate juror misconduct after a juror reported a concern about safety.

A

Minutes before the jury announced that it had reached a verdict, the courtroom clerk advised the trial judge that Juror No. 3 told her during the noon hour that he had a concern about safety. The clerk described her contact with Juror No. 3 on the record as follows: When the clerk opened the jury room to allow Juror No. 3 to retrieve his sunglasses, the juror inquired whether he could ask the clerk a question about a matter which was discussed "in the back." The clerk responded that she could not talk to the juror about such matters. Juror No. 3 said it was "regarding a safety concern." The clerk again told Juror No. 3 she could not talk to him. Nevertheless, Juror No. 3 said the jurors "have to disclose our names, where we work, where our spouses work and some of the jurors are concerned about that." The clerk told Juror No. 3 to send the judge a note if he had a concern. No note regarding safety was submitted to the trial court.

Defendant's trial counsel said if the jurors discussed safety concerns, their discussions may have improperly influenced the verdict but he was not sure whether a motion for mistrial would be appropriate at that time. He requested time to research the issue. The trial judge acknowledged that the jury could not consider certain matters in reaching a verdict and there was quite a bit of evidence about defendant or his supporters trying to intimidate witnesses. The trial judge noted that when the jurors discussed the issues in the case, there could have been idle comments by one or more jurors wondering whether there was any risk to them. But the trial judge said it was premature to ask for a mistrial and he would not even know how to canvas the jury about whether or not they discussed their personal security and whether those things influenced their verdict. He said those matters may be better left to posttrial investigation. The prosecutor agreed. The trial judge pointed out that the verdicts could be in defendant's favor. Defendant's trial counsel responded, "Therein lies the conundrum I'm in, your Honor." The trial judge said he was not sure what defense counsel would find in doing research that would provide an answer and at least defense counsel had the information to decide what his next move may be depending on the verdict. Defendant's trial counsel did not argue the point further and the trial court took the verdict.

B

A trial court may discharge a juror upon good cause shown to the trial court that the juror is unable to perform his or her duty. (§ 1089.) " 'Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court's duty "to make whatever inquiry is reasonably necessary" to determine whether the juror should be discharged. [Citation.]' " (People v. Bradford (1997) 15 Cal.4th 1229, 1348 (Bradford); see People v. Cowan (2010) 50 Cal.4th 401, 506 (Cowan).) "However, ' "not every incident involving a juror's conduct requires or warrants further investigation." ' " (Cowan, supra, 50 Cal.4th at p. 506.) And a trial court must exercise caution in conducting inquiries during deliberations because of the need to protect the sanctity of jury deliberations. (People v. Cleveland (2001) 25 Cal.4th 466, 475-476, 485.) "Jurors may be particularly reluctant to express themselves freely in the jury room if their mental processes are subject to immediate judicial scrutiny. The very act of questioning deliberating jurors about the content of their deliberations could affect those deliberations." (Id. at p. 476.)

" ' " 'The decision whether to investigate the possibility of juror bias, incompetence, or misconduct -- like the ultimate decision to retain or discharge a juror -- rests within the sound discretion of the trial court.' " ' " (Cowan, supra, 50 Cal.4th at p. 506.) " ' "The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial." ' [Citation.] A hearing is required only where the court possesses information which, if proved to be true, would constitute 'good cause' to doubt a juror's ability to perform his or her duties and would justify his or her removal from the case." (Bradford, supra, 15 Cal.4th at p. 1348.)

Juror No. 3's statements to the clerk did not suggest, and there is no evidence that, the verdict was affected by fear or concern for safety. (People v. Manibusan (2013) 58 Cal.4th 40, 51, 56 [juror's fear for her safety and the safety of her family does not necessarily establish bias or other grounds for discharge].) As the trial court noted, evidence of witness intimidation was presented at the trial and the comment by Juror No. 3 could refer to idle comments made as the jury discussed such evidence. The trial court said defendant could investigate the matter after the verdict was read. And defendant brought a motion for a new trial based on alleged juror misconduct. But as the trial court noted in denying that motion, defendant failed to present any evidence that jurors improperly considered witness intimidation evidence in arriving at the verdict.

Additionally, the trial court instructed the jury that any juror may send a signed note through the bailiff if he or she needed to communicate with the judge during deliberations. The courtroom clerk likewise told Juror No. 3 to send the judge a note if he had a concern. No jury note regarding a safety concern is in the record.

Although the trial court could have responded differently to the information presented (see., e.g., People v. Navarette (2003) 30 Cal.4th 458, 499-500 [admonishing jury in response to note from a juror expressing safety concern]), we find no abuse of discretion because the trial court did not have information suggesting a juror could not perform his or her duty to render an impartial and unbiased verdict. (See People v. Fuiava (2012) 53 Cal.4th 622, 703; People v. Prieto (2003) 30 Cal.4th 226, 272-273 (Prieto); People v. Ray (1996) 13 Cal.4th 313, 344; People v. Espinoza (1992) 3 Cal.4th 806, 821; Cowan, supra, 50 Cal.4th at pp. 507-508; People v. Martinez (2010) 47 Cal.4th 911, 943.)

Additionally, the trial court instructed the jury not to let bias influence its decision, and that it must find defendant not guilty unless the evidence proved defendant's guilt beyond a reasonable doubt. In the absence of evidence to the contrary, and none has been presented, we presume the jury followed the trial court's instructions. (Prieto, supra, 30 Cal.4th at pp. 272-273.)

We do not discuss defendant's associated forfeiture and ineffective assistance of counsel claims because we addressed defendant's claim on the merits.

VI

Defendant claims insufficient evidence supports the finding that defendant had the present ability to inflict injury and intended to assault the victim.

We previously stated the standard of review applicable to a sufficiency of the evidence challenge. Assault is an "unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) The "present ability" element "is satisfied when 'a defendant has attained the means and location to strike immediately.' [Citations.] In this context, . . . 'immediately' does not mean 'instantaneously.' It simply means that the defendant must have the ability to inflict injury on the present occasion. . . . [A]n assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be 'immediate, in the strictest sense of that term." (People v. Chance (2008) 44 Cal.4th 1164, 1168, fn. omitted (Chance).) "[I]t is a defendant's action enabling him to inflict a present injury that constitutes the actus reus of assault. There is no requirement that the injury would necessarily occur as the very next step in the sequence of events, or without any delay. . . . 'There need not be even a direct attempt at violence; but any indirect preparation towards it, under the circumstances mentioned, such as drawing a sword or bayonet, or even laying one's hand upon his sword, would be sufficient.' " (Id. at p. 1172.) Actual physical contact with the person of the victim is not necessary to commit an assault. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, superseded by statute on another ground as stated in People v. Perez (2018) 4 Cal.5th 1055, 1061, 1068.)

In Chance, the defendant hid behind a trailer with a loaded gun to ambush an officer who was pursuing him. (Chance, supra, 44 Cal.4th at p. 1168.) There was no round in the firing chamber but the defendant could have chambered one by simply pulling back on a slide mechanism. (Id. at p. 1169.) The safety on the gun was off. (Ibid.) The officer foiled the ambush by going around the other end of the trailer. (Id. at p. 1168.) The officer saw the defendant extending a gun forward in his hand. (Ibid.) The officer pointed his own gun at the defendant and ordered him to drop his weapon. (Id. at p. 1168.) The defendant threw his gun behind him, ran and was apprehended. (Id. at pp. 1168-1169.)

On appeal, the defendant argued he did not have the present ability to commit a violent injury because his act of pointing a gun at the place where he thought the officer would appear was not immediately antecedent to a battery in that in order to complete a battery he would have to turn, point his gun at the officer and chamber a round. (Chance, supra, 44 Cal.4th at p. 1171.) The California Supreme Court disagreed, holding that the defendant's conduct was sufficient to establish his present ability to commit a violent injury because he attained the present ability to inflict injury by positioning himself to strike with a loaded gun, even though the officer took evasive action to avoid injury. (Id. at pp. 1171-1176.) The fact that the defendant never pointed his weapon in the officer's direction did not preclude a finding of present ability. (Id. at p. 1176 [the defendant's mistake as to the officer's location did not cause his act to be less than an assault].)

In People v. Yslas (1865) 27 Cal. 630 (Yslas), the California Supreme Court affirmed a judgment for assault where the defendant approached the victim with a raised hatchet and stood seven or eight feet from her. (Id. at pp. 631, 634-635 [cited with approval in Chance, supra, 44 Cal.4th at p. 1174].) The defendant committed assault even though he did not close the distance or swing the hatchet. (Chance, at p. 1174.) A distance of 10 to 15 feet between the knife-wielding defendant and law enforcement officers in People v. Nguyen (2017) 12 Cal.App.5th 44, 46-47, 48-49 (Nguyen) also did not preclude a finding of present ability. In People v. Ranson (1974) 40 Cal.App.3d 317, the appellate court held substantial evidence supported the finding of present ability where the defendant aimed a loaded rifle at a police car. (Id. at p. 321.) Although the rifle was jammed by a misplaced cartridge, defendant could have adjusted the cartridge and fired quickly. (Ibid.)

Assault is a general intent crime. (Williams, supra, 26 Cal.4th at p. 788.) The defendant must intentionally commit the act and "be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known." (Id. at p. 788; see id. at p. 790) Contrary to defendant's suggestion, the defendant need not be subjectively aware of the risk that a battery might occur and need not intend to injure the victim. (Id. at p. 790; People v. Golde (2008) 163 Cal.App.4th 101, 108-109 (Golde).)

In this case, someone in the van yelled "gun," indicating that Lansdowne could be seen by the occupants of the van as he stood in front of the house. Defendant steered the van to the left as he accelerated and used the van to push the Cadillac forward. The location of expended shotgun shells indicated that Lansdowne was standing to the left of the van as it pushed the Cadillac forward. Lansdowne testified that the Cadillac would have ended up a foot off to the side of where he exited the house if it had continued forward, and Lansdowne was concerned the van would hit him. Lansdowne moved to get out of the way. He was five to eight feet from the door of the house. The Cadillac finally stopped about 19 feet from the door of the house.

There is substantial evidence that defendant willfully committed an act that by its nature would probably and directly result in injury to Lansdowne and that defendant had attained the present ability to inflict injury by steering the van and causing it to accelerate in Lansdowne's direction. (Chance, supra, 44 Cal.th at pp. 1171-1176; Yslas, supra, 27 Cal. at pp. 631, 634-635; Nguyen, supra, 12 Cal.App.5th at pp. 46-47, 48-49; Golde, supra, 163 Cal.App.4th at p. 109; People v. Claborn (1964) 224 Cal.App.2d 38, 41-42 [defendant who aimed his car at pursuing officer's car committed assault with a deadly weapon].) Defendant had the present ability to commit a violent injury upon Lansdowne even if the gunshots forced the van to stop. (Yslas, supra, 27 Cal. at pp. 631, 634-635; Nguyen, supra, 12 Cal.App.5th at pp. 46-47, 48-49.)

VII

Defendant contends cumulative error rendered his trial unfair. Because we have found no prejudicial error, his claim of cumulative error lacks merit.

DISPOSITION

The judgment is affirmed.

/S/_________

MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
DUARTE, J.


Summaries of

People v. Thietje

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
Jun 19, 2018
No. C078175 (Cal. Ct. App. Jun. 19, 2018)
Case details for

People v. Thietje

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ROY THIETJE, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)

Date published: Jun 19, 2018

Citations

No. C078175 (Cal. Ct. App. Jun. 19, 2018)

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