People v. Virgo ( 2014 )

Filed 1/24/14 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C066832
Plaintiff and Respondent, (Super. Ct. No. 62-064676)
v. ORDER MODIFYING
OPINION AND DENYING
DAVID ALLEN VIRGO, REHEARING
[NO CHANGE IN
Defendant and Appellant. JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on December 30, 2013, be modified as
follows:
1. Remove the first full paragraph on page 10 and replace it with the following
paragraph:
During his booking at the jail, defendant was boisterous and loud. He said to
everyone present, “I fired 55 rounds. And I didn’t get fucking killed. I must be a fucking
loser. [¶] I’ve got priors from way back. I can’t believe Jeff [Lieutenant Jeffrey
1
Ausnow] didn’t believe me. I told him I had C-4.” Then defendant held up his hand and
said, “They blew my mother fucking gun apart. Got my finger. Got it right in the side
here. The slide wouldn’t go back. Blew it apart. So I went for my [SIG Sauer] and
reloaded.”
2. At the end of the third paragraph on page 12, add the following footnote:
We do not discuss the possible application of the “kill zone” theory to this case. (See
People v. Stone (2009) 46 Cal.4th 131, 136-142.) The prosecutor did not charge
defendant under the theory. He charged him with separate counts of attempting to
murder each of the 10 named peace officers “under the traditional theory of attempted
murder liability.” Also, the jury was not instructed on the “kill zone” theory. The trial
court omitted the “kill zone” instruction from the instruction on attempted murder
(CALCRIM No. 600), and did so without objection from the prosecution.
3. On page 16, delete the first full paragraph, including footnote 6. Insert the
following new paragraph in its place:
We have independently reviewed the in camera hearing transcript and the SET
officers’ personnel files, and we conclude the trial court committed no error in granting
the motion as to only one officer’s records and denying it as to all others.
This modification does not change the judgment.
The petition for rehearing is denied.
THE COURT:
NICHOLSON , Acting P. J.
BUTZ , J.
MAURO , J.
2
Filed 12/30/13 (unmodified version)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C066832
Plaintiff and Respondent, (Super. Ct. No. 62-064676)
v.
DAVID ALLEN VIRGO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Placer County, Colleen M.
Nichols, Judge. Affirmed in part and reversed in part.
Law Offices of John F. Schuck and John F. Schuck, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul A.
Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of parts II through V.
1
A jury convicted defendant David Allan Virgo of 10 counts of willful, deliberate,
and premeditated attempted murder of a peace officer (Pen. Code, §§ 664, subd. (e)/187,
subd. (a));1 10 counts of assault with a firearm and personally using a firearm against
those 10 officers (§§ 245, subd. (d)(2), 12022.5, subd. (a), (d)); two counts of being a
felon in possession of a firearm, (former § 12021, subd. (a)(1)); and additional conduct
and status enhancements. (§§ 667.5, subd. (b), 12022.53, subd. (c), 12022.5.)
The trial court sentenced defendant to a state prison term of 46 years eight months,
plus 75 years to life, calculated as follows: five separate and consecutive terms of 15
years to life on five counts of deliberate attempted murder of a peace officer (§ 664,
subds. (e), (f)/187, subd. (a)); plus a 20-year determinate enhancement on one of the
attempted murder counts for personally using a firearm; plus four consecutive
determinate terms of six years eight months, or one-third of the 20-year term, for the
same enhancement on four attempted murder counts (§ 12022.53, subd. (c)).
As to the remaining counts, the court imposed five separate and concurrent terms
of 15 years-to-life for the other five attempted murder counts, along with the 20-year
enhancements as to each of those counts. It also imposed, and stayed under section 654,
sentences on the 10 counts of assault with a firearm on a peace officer and their related
enhancements, and the two counts of being a felon in possession of a firearm.
On appeal, defendant raises the following claims:
(1) Substantial evidence does not support 10 counts of willful, deliberate, and
premeditated attempted murder;
(2) We must review the trial court’s in-camera proceedings on defendant’s
Pitchess2 motion for abuse of discretion;
1 Subsequent undesignated references to sections are to the Penal Code.
2 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
2
(3) The trial court abused its discretion by admitting evidence of defendant’s gang
membership;
(4) Certain prejudicial testimony was incurable, despite the court’s attempts to
cure; and
(5) These errors constitute cumulative error.
We conclude five of the 10 convictions of attempted murder are not supported by
substantial evidence, and we reverse only those convictions. Except to order corrections
to the abstract of judgment, we affirm the judgment in all other respects.3
FACTS
In 2006, defendant was a parolee at large, and the Placer County Sheriff’s Office
(Sheriff) was looking for him. He had assaulted a man, breaking his nose, and left him
unconscious. The Sheriff issued a bulletin for defendant’s arrest.
The bulletin, a be-on-the-lookout bulletin, warned officers that defendant was
considered armed and unpredictable, and they should handle the matter with extreme
caution. The Sheriff’s warning was based in part on advice the Sheriff had received from
the Department of Corrections and Rehabilitation. That agency had informed the Sheriff
that defendant was unpredictable and any arrest should by performed by the Sheriff’s
Special Enforcement Team (SET), the Sheriff’s version of a Special Weapons and
Tactics Team (SWAT).
In addition, defendant had told Sheriff officers in an earlier contact he was a
member of the Hell’s Angels and part of “the Filthy Few,” a Hell’s Angels enforcer
group known for violence.
On October 18, 2006, deputies located defendant at a house on Happy Hollow
Lane in Newcastle. The SET commander, Lieutenant Jeffrey Ausnow, directed the SET
3 The abstract of judgment omits one of the assault convictions and mislabels the
attempted murder statutes. We order a corrected abstract of judgment be prepared.
3
to report and prepare to respond. Lieutenant Ausnow knew defendant from high school.
He also knew defendant had felony convictions involving weapons, ammunitions, and
explosives. Lieutenant Ausnow had been informed defendant was an enforcer for the
Hell’s Angels. And he knew defendant had two active felony arrest warrants, one for
possession and discharge of handguns and one for a battery with serious bodily injury.
The SET assembled at the California Highway Patrol office in Newcastle. All
SET members were wearing sheriff’s uniforms with helmets and body armor vests.
Lieutenant Ausnow briefed the team members on the situation. He directed them to do a
“surround and call-out,” a standard SWAT-type maneuver where deputies stealthily
surround a house so the suspect inside cannot escape or hurt others, and then they give
the suspect an opportunity to surrender. If things did not go according to plan, Sergeant
Wayne Woo, the SET’s second in command and the ground commander, was to give
orders.
About 10:00 p.m., the SET arrived at the residence and began surrounding it. The
small house was situated on a semi-rural lot on the northeast corner of the intersection of
Happy Hollow Lane and Powerhouse Road. A driveway accessed the house from Happy
Hollow Lane and went along the eastern side of the house, which was also the front of the
house.4
The SET approached from the northwest along Powerhouse Road and into the
backyard of the house, and from there they began to take their positions. The main
assault team consisted of Sergeant Woo, Sergeant Robert Franz, and Deputies Jason
4 The trial witnesses were not consistent in describing which direction the house
faced. From comparing photographs of the house with maps, it is apparent the front of
the house faced roughly east. We will base our descriptions of the house and its rooms
based on that fact.
4
Lockhart and Ben Glau. Their assignment was to go around the north side of the house
and take position on the front or east side of the house.
Another team, consisting of Agent Benjamen Machado and Deputy Jeff
Swearingen, were assigned to go around the back of the house on the west side, then to
the south side of the house and there meet up with Sergeant Woo and his team at the front
of the house on the east side.
A third team consisted of Deputies Ty Conners, Ryan West, and Dennis Kemper.
This team’s responsibility was to cover the southwest corner of the house, including its
south and back sides. A fourth team, consisting of Sergeants Dave Powers and Darrell
Steinhauer, and Deputy Joshua James Tindall, was assigned to cover the northwest corner
of the house, including its north and back sides.
As Agent Machado and Deputy Swearingen approached the house along its south
side, they saw a person standing in the driveway speaking on a phone. Both officers
announced they were with the sheriff’s office, but the subject quickly retreated into the
house. Deputy Swearingen radioed to the others that their mission had been
compromised.
Agent Machado went onto the front porch. He heard people moving around
inside. He pounded hard on the house beneath the front window and yelled, “Sheriff’s
department. Probation search. Come to the door.”
At about that time, Deputies Conners, Kemper, and West were approaching their
position on the southwest corner of the house. They heard a noise in a window on the far
right of the back of the house. Deputy Conners shined his gun light onto the window and
saw two males, one of whom was trying to get out. The deputies announced, “Sheriff’s
department.” The male who had been trying to get out of the window abruptly pushed
back and yelled, “Fuck.” The two males retreated inside the house. Kemper told the
others to take cover.
5
Sergeant Woo and his team took cover behind a Toyota vehicle parked in the
driveway parallel to the front door of the house. He began yelling verbal commands,
saying, “Sheriff’s department. Come out with your hands up.” A male from inside the
house yelled, “Back up. Back the fuck up. I have a bomb, and I’m going to blow the
house up.” Sergeant Woo continued to yell commands, and the male inside the house
yelled he had C-4 (an explosive), he was going to blow up the house, and everyone
needed to move back.
Sergeant Woo decided to forego the previous plan and to introduce tear gas into
the house as soon as possible. He gave those orders to Deputy West, who was at the
southwest corner of the house, and to Sergeant Powers, who was near the northwest
corner of the house. He also ordered the rest of the team to put on their gas masks.
At about that time, Sergeant Woo and the other officers heard gunshots from
inside the house. The shots continued intermittently. Sergeant Woo could tell when the
shots were fired from the front of the house, from deeper inside the house, or from the
back of the house. As the male’s voice moved to the area of the front kitchen window, it
attracted Sergeant Woo’s attention. He then heard a gunshot, saw the bullet come out of
that window, and heard it pass over his head. He estimated the bullet passed between
five and 10 feet above his head. Deputy Lockhart was standing next to him at that time.
Sergeant Woo, Deputy Lockhart, Sergeant Franz, and Deputy Glau, still taking
cover behind the Toyota, heard more shots come from the house toward their direction.
Deputy Lockhart heard shots going over his head and hitting tree branches and debris
behind him. Sergeant Woo testified that “maybe four to seven” gunshots came out from
the front of the house towards his direction during the ordeal.
Sergeant Franz heard rounds entering the trees behind him. Deputy Glau heard a
shot go past him every once in a while. He would simultaneously hear a shot, hear the
shot hit something behind him, and see glass falling from a window.
6
A police armored vehicle pulled into the driveway about that time behind the
parked Toyota, and Sergeant Franz and Deputy Glau took cover behind it. Sergeant Woo
and Deputy Lockhart stayed by the Toyota.
Once Sergeant Woo confirmed everyone had their gas masks on, Deputy West and
Sergeant Powers began shooting tear gas into the house. After the first volley, the front
door opened, and three people came out. They were directed to crawl away from the site.
With the door open, Sergeant Woo’s team could see inside the house down a hall that
ended in a bathroom. A bedroom came off each side of the hall by the bathroom.
After more volleys of tear gas, two more people came out the open front door, one
holding a dog. While this group was coming out, Sergeant Franz saw a hand holding a
handgun come around the back corner of the hall, and he saw the gun fired. Sergeant
Franz yelled, “Gun, gun,” and Deputy Glau fired back. When Sergeant Franz saw the
handgun, he thought it was going to be used on him. Deputy Glau also saw the gun; he
was looking straight down the gun’s barrel before he fired at it.
The last group of people to exit the house confirmed to the officers that defendant
was the only person who remained inside. Sergeant Woo and Deputy Lockhart moved
behind the armored vehicle for cover.
Shots continued to be fired from inside the house. During the first few minutes of
the incident, the shots had come from the front of the house. By this time, they seemed to
Sergeant Woo to be more isolated towards the back of the house.
Deputies West, Conners, and Kemper were taking cover on the southwest side of
the house, with Deputy West firing tear gas into the house on the south and west sides.
During this time, they heard gunfire coming from inside the house, but they could not tell
whether the shots were being fired in their direction. Deputy West saw muzzle flash once
through one of the windows on the back west wall but could not tell where the shot was
aimed. Although Deputy West could hear steady gunfire coming from the house, he
could not tell where the other gunshots he heard were directed.
7
Deputy Tindall and Sergeants Steinhauer and Powers were taking cover near the
northwest corner of the house. Deputy Tindall was more towards the northwest corner
separated somewhat from Sergeants Steinhauer and Powers. After seeing the armored
vehicle pull up by the front of the house, Deputy Tindall saw muzzle flash through a
window at the back of the house. The flash was linear in shape, meaning to Deputy
Tindall that the shot went perpendicular to his position. After hearing the shot and seeing
the flash, Deputy Tindall fired into the north wall, believing that was where the threat
was originating.
After firing, Deputy Tindall heard a male from inside the house say, “Where are
you? Where are you, mother fucker?” Then he saw a second muzzle flash and heard a
shot. This flash came from the north side of the house. It was round and flowery,
indicating to Deputy Tindall that he was in front of the gun when it was fired. He took
cover briefly, realized he was all right, and returned fire. He felt at this point that his life
was being threatened.
Located to Deputy Tindall’s left, Sergeant Powers, who was shooting tear gas into
the house, and Sergeant Steinhauer, who was assisting Sergeant Powers by shining a light
at the house, also heard a gunshot and saw a muzzle flash come out of the north side of
the house. Both Sergeant Powers and Sergeant Steinhauer could tell the gun had been
aimed in their direction because the flash was round, as if they were looking straight at it.
Sergeant Powers began to make verbal contact with defendant. He announced he
was from the sheriff’s office, and that defendant could exit out the front door if he threw
his weapons out. Defendant said he wanted to surrender. Sergeant Powers told him to
throw his weapons out the window and exit out the front door with his hands up. After
Sergeant Powers made several attempts to get defendant to comply, defendant threw
something out the window. Sergeant Powers advised Sergeant Woo of this development
by radio. He continued to advise defendant to surrender. Then Sergeant Powers learned
by radio that defendant was crawling towards the front door.
8
Defendant appeared in the hall outside the bedroom, empty hands out, and he
started crawling out. He took one or two steps, and then collapsed. Sergeant Woo told
him to keep crawling towards his voice, but defendant kept saying he could not because
he was hurt. Concerned by defendant’s refusal to follow his instructions, Sergeant Woo
ordered Sergeant Franz to taser defendant. When Sergeant Franz announced he was
going to taser him, defendant immediately popped up and quickly crawled to where the
officers directed him. He was there taken into custody. His only injuries were superficial
cuts to his finger and ear.
Detectives located two handguns on the ground outside the northwest bedroom’s
window on the north side of the house. One was a Ruger nine-millimeter semi-automatic
handgun, and the other was a Czech-made semi-automatic .45-caliber handgun. The
slide of the Ruger had been damaged, and it had a dry reddish substance on it.
Defendant’s fingerprints were on the .45-caliber handgun and its clip.
Detectives located gun casings inside the house. They found five fired casings in
the hallway, seven fired casings in the northwest bedroom, two fired casings in the
southwest bedroom, and four fired casings in the bathroom. They also found one fired
bullet outside the house near where Deputy Tindall took cover, and another fired bullet
off the front or east side of the house.
A criminalist from the California Department of Justice, Michelle Terra,
conducted a trajectory analysis from the bullet holes found in the house. She could not
determine the trajectory of a bullet that was fired through an open door or window, as it
left no bullet hole to analyze. However, from examining the intact bullet holes, Terra
verified that at least 14 shots were fired from inside the house towards the outside, and of
those, 10 actually left the house. One of the shots that was fired from the northwest
bedroom exited at a height of approximately five feet seven inches above the ground in
the direction of an outbuilding and oak tree. Another shot that was fired from that
bedroom exited approximately seven feet above the ground through a window and screen
9
out the back to the west of the property. Another shot was fired high out a kitchen
window towards the northeast. And two outgoing shots were fired in the direction of the
front porch area, one of which exited at a height of approximately five feet four inches
above the ground and over the parked Toyota. Terra also testified that nine of the shots
she documented coming from inside the house were aimed at the ceiling.5
During his booking at the jail, defendant was boisterous and loud. He said to
everyone present, “I fired 55 rounds. And I didn’t get fucking killed. I must be a fucking
loser. [¶] I’ve got priors from way back. I can’t believe Jeff [Lieutenant Jeffrey
Ausnow] didn’t believe me. I told him I had C-4.” Then defendant held up his hand and
said, “They blew my mother fucking gun apart. Got my finger. Got it right in the side
here. The slide wouldn’t go back. Blew it apart. So I went for my six-hour and
reloaded.”
Scott and Jolene Truschke were two of the people inside the house who crawled
out to safety during the shooting. Scott was the person who was using the phone outside
on the driveway when the deputies first approached. He had seen defendant earlier that
evening in the house with two guns in his hands. In an interview with police, Scott
reported that “Dave got the guns and said, ‘Okay.’ ” “I know he had two guns.”
Jolene Truschke also had seen two handguns in the house that evening. In her
interview with police, Jolene said defendant had fired six or seven shots. She had also
heard defendant say “he ain’t going down like that, you know. He ain’t getting taken.
He’s going to go down blazing, you know, guns and all.”
5 Terra also documented a total of 57 rounds that went into the house from the
outside.
10
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends insufficient evidence supports his 10 convictions of attempted
murder of a peace officer and the findings that the 10 attempts were willful, deliberate,
and premeditated. We agree sufficient evidence does not support all 10 convictions, but
we conclude sufficient evidence supports five counts of willful, deliberate, and
premeditated attempted murder.
“ ‘The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]’ (People v. Jones (1990) 51 Cal.3d 294, 314.)
“ ‘ “The mental state required for attempted murder has long differed from that
required for murder itself. Murder does not require the intent to kill. Implied malice -- a
conscious disregard for life -- suffices. [Citation.]” (People v. Bland (2002) 28 Cal.4th
313, 327 (Bland).) In contrast, “[a]ttempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward accomplishing the intended killing.”
[Citations.]’ [Citation.]” (People v. Perez (2010) 50 Cal.4th 222, 229-230 (Perez), fn.
omitted.)
Thus, in order for defendant to be convicted of each of the 10 attempted murders
he was charged of committing, the prosecution had to prove he acted with the specific
intent to kill each victim. “ ‘ “[G]uilt of attempted murder must be judged separately as
to each alleged victim.” ’ ([People v. Stone (2009) 46 Cal.4th 131,] 141 [(Stone)],
11
quoting Bland, at p. 331.) ‘[T]his is true whether the alleged victim was particularly
targeted or randomly chosen.’ (Stone, at p. 141.)” (Perez, supra, 50 Cal.4th at p. 230.)
“ ‘ “[T]he act of firing toward a victim at a close, but not point blank, range ‘in a
manner that could have inflicted a mortal wound had the bullet been on target is
sufficient to support an inference of intent to kill . . . .’ [Citation.]” [Citations.]’
[Citation.]” (Perez, supra, 50 Cal.4th at p. 230.)
To establish specific intent, the prosecution does not need to show defendant
intended to kill a particular person. In Stone, supra, 46 Cal.4th 131, our Supreme Court
determined a shooter who fires a single shot into a group of people, intending to kill one
of the group, but not knowing or caring which one, could be convicted of a single count
of attempted murder. (Id. at p. 134.) The court explained that, “The mental state
required for attempted murder is the intent to kill a human being, not a particular human
being.” (Ibid., original italics.)
However, where there are multiple possible victims of the attempted murder, the
prosecution must establish that defendant intended to kill each victim for each count
charged. In Perez, supra, 50 Cal.4th 222, the high court determined a shooter who fired a
single shot from a moving car into a group of seven peace officers and a civilian could be
convicted of only one count of attempted murder, not eight. Where the shooter intended
to kill someone, without targeting any particular individual and without using a means of
force calculated to kill everyone in the group, he could be guilty of only a single count of
attempted murder. (Id. at p. 225.)
In addition to proving defendant intended to kill, the prosecution in this case
sought to prove defendant’s attempts to kill were willful, deliberate, and premeditated.
“ ‘A verdict of deliberate and premeditated first degree murder requires more than a
showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of
considerations in forming a course of action; “premeditation” means thought over in
advance. [Citations.] “The process of premeditation . . . does not require any extended
12
period of time. ‘The true test is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly. . . .’ [Citations.]” ’ [Citation.]” (People v.
Halvorsen (2007) 42 Cal.4th 379, 419.)
We have no doubt defendant intended to kill, and that his attempts to kill were
willful, deliberate, and premeditated. He told his friends when the sheriffs arrived that he
was not going to be taken and he was going to go down with guns blazing. He fired
directly at deputies through the open front door. At one point in the shooting, he yelled
to the deputies, “Where are you? Where are you, mother fucker?” And he continued
firing towards them after that. These facts show defendant reflected on the circumstances
and arrived at a judgment. He was going to kill or be killed.
Thus, to affirm each of defendant’s 10 convictions of attempted murder, we search
the record for substantial evidence indicating defendant committed a direct but
ineffectual act toward killing each officer. We look to see if he fired at each of the 10
victims in a manner that could have killed them had defendant’s aim been more on target.
Obviously, defendant cannot be guilty of attempting to murder someone who is taking
cover on the ground outside when defendant fires his gun up into the ceiling.
The information charged defendant with attempting to kill Sergeant Woo, Deputy
Lockhart, Deputy Glau, Sergeant Franz, Sergeant Steinhauer, Sergeant Powers, Deputy
Tindall, Deputy West, Deputy Conners, and Deputy Kemper. Sufficient evidence
supports defendant’s convictions of attempting to kill Woo, Lockhart, Franz, Glau, and
Tindall.
Woo, Lockhart, Franz, and Glau each testified that multiple shots came their
direction when they were taking cover by the Toyota parked in front of the house. All of
them heard shots go over their heads and hit things behind them. Sergeant Woo stated
four to seven gunshots came out of the front of the house toward him, and he was
standing next to the other three. Defendant’s firing four to seven shots at four peace
13
officers is sufficient evidence in these circumstances to convict him of attempting to
murder each officer.
Sergeants Steinhauer and Powers and Deputy Tindall had taken cover at the
northwest corner of the house, with Sergeant Powers firing tear gas. All three of these
officers testified to seeing only one shot come out of the northwest bedroom’s north
window that was aimed at them. The other shot Deputy Tindall saw go out the
bedroom’s west window was aimed away from him. Under this record, defendant could
be convicted of attempting to murder one of the three officers, but not all three.
The strongest evidence is that defendant attempted to kill Deputy Tindall. After
shooting into the northwest bedroom and hearing defendant say, “Where are you? Where
are you, mother fucker?” Deputy Tindall saw a flash come at him from the north wall of
the house. The muzzle flash was round and flowery, indicating Deputy Tindall was in
front of the gun when it was fired. He took cover, confirmed he was all right, and
returned fire. He felt at that moment that his life was being threatened. This is sufficient
evidence to sustain defendant’s conviction of attempting to murder Deputy Tindall.
Because there is no evidence defendant also fired separate shots at Sergeants Steinhauer
and Powers, there is insufficient evidence to sustain the convictions as to them.
As for the other officers, Deputies West, Conners, and Kemper, they provided no
evidence that they were directly fired upon. They were positioned at the southwest
corner of the house. They heard shots coming from inside and outside the house, but they
could not tell where the shots were coming from. The only exception was one shot
Deputy West saw leave the back window, but he could not tell where the shot was aimed.
This evidence is insufficient to support a conviction of attempted murder against
Deputies West, Conners, and Kemper.
The Attorney General argues there is sufficient evidence to support all 10
convictions of attempted murder. She relies on the number of spent casings found inside
14
the house, the 14 outgoing shots found by the trajectory analysis, and defendant’s
assertion at jail that he fired 55 rounds.
These facts, however, do not demonstrate defendant had a specific intent to kill
each officer and that he in fact committed a discrete (or an identified) direct but
ineffectual act toward killing each one. Many of defendant’s shots were aimed up at the
ceiling and over where some of the officers were located. The Department of Justice
criminalist testified that nine of the 14 shots she determined were made from inside the
house went into the ceiling. While defendant may have intended with each shot aimed
out at 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.
Without such evidence, all 10 convictions of attempted murder cannot stand.
We need not remand this case for resentencing. The trial court imposed
consecutive sentences for the attempted murders of Woo, Lockhart, Glau, Franz, and
Tindall (counts one, three, five, seven, and thirteen of the information), the convictions
we here affirm. The court imposed concurrent sentences for the attempted murders of the
other five officers, Steinhauer, Powers, West, Conners, and Kemper (counts nine, eleven,
fifteen, seventeen, and nineteen). Because we reverse only the latter five convictions, we
order the clerk of the trial court to prepare an amended abstract of judgment striking the
reversed convictions and their enhancements and sentences.
II
Review of Pitchess Motion
Defendant sought to discover any citizen complaints that had been filed against the
SET officers accusing them of excessive force, falsification of evidence, and moral
turpitude. The court found probable cause to review the personnel files of eight of the
officers for complaints of excessive force. It found no probable cause to review any of
the officers’ personnel files for complaints of falsification of records and moral turpitude.
15
The court conducted an in camera review of the eight officers’ personnel files, and
it determined only one contained a complaint regarding excessive force. It ordered
county counsel to provide the complainants’ names and addresses to defense counsel,
which it did.
We have independently reviewed the in camera hearing transcript, and we
conclude the trial court committed no error in granting the motion as to only one officer’s
files and denying it as to all others.6
III
Admission of Gang Evidence
Defendant contends the trial court abused its discretion when it admitted evidence
he was an enforcer for the Hell’s Angels. He claims the evidence of gang membership
and his role as an enforcer for the gang was unduly prejudicial. We conclude the court
did not abuse its discretion.
The trial court admitted the evidence for the sole purpose of determining whether
the actions of the peace officers were lawful when considering the circumstances known
by them at that time. Defendant had asserted the defenses of self-defense and excessive
force, and the court held the evidence of his alleged gang involvement was relevant to
understanding the circumstances under which the officers acted and whether they used
reasonable force. However, the court admitted the evidence solely for that purpose. It
instructed the jury it was to consider the evidence “solely for the purpose of determining
the lawfulness of the actions of law enforcement and no other.”
By so limiting the jury’s consideration of the evidence, the trial court ensured the
evidence would not become unduly prejudicial. The jury was instructed not to consider
6 Defendant also asked us to review the documents presented at the hearing, but he
did not take the necessary steps of augmenting the record to include the officers’
personnel files.
16
the evidence for its truth, and we presume the jury followed that admonition. (People v.
Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
This case is unlike People v. Memory (2010) 182 Cal.App.4th 835, relied upon by
defendant, where we found admission of gang evidence to be prejudicial error. In that
case, the evidence of that defendant’s membership in the Jus Brothers Motorcycle Club
was admitted to show the defendant’s criminal disposition. Here, the evidence served a
much more restricted purpose, and the jury did not consider it for determining
defendant’s disposition or the truth of his actions. Under this circumstance, the trial court
did not abuse its discretion in admitting the evidence for its limited purpose.
IV
Curing of Prejudicial Testimony
Responding to a question regarding whether defendant had said he was a suspect
in another shooting, a witness stated she recalled something about a killing. Although the
court struck the testimony, accepted a stipulation by the parties that the statement was
false, and admonished the jury not to consider it, defendant claims the testimony was
incurably prejudicial. We disagree.
A. Additional background information
During redirect examination, the prosecutor asked Jolene Truschke, one of the
women who crawled out of the house during the shooting, whether she had heard
defendant talk about a Detective Addison. She had, but she could not remember clearly
what he had said. The prosecutor asked her if defendant had said he was angry with
Detective Addison. She said he had not. The prosecutor next asked whether defendant
had said anything about being a suspect in a shooting in Penryn. Jolene responded, “I
recall something about a killing in Penryn or something. I recall a little bit.” Defense
counsel objected immediately, and the court sustained the objection and struck the
testimony.
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The prosecution had been attempting to elicit from Jolene evidence of defendant’s
state of mind immediately before the incident, that he knew he was a suspect in another
shooting and believed he was being set up for that shooting by Detective Addison.
However, because Jolene had suggested defendant was a suspect in a killing, defense
counsel asked for a curative instruction. The prosecutor, too, did not know Jolene would
use the word “killing” instead of “shooting,” and he agreed to stipulate defendant was not
a suspect in a killing.
The court agreed to a stipulation by counsel and an admonishment to the jury, and
it denied defendant’s request for a mistrial. The court thereafter instructed the jury as
follows: “[L]ast Tuesday, Miss Jolene Truschke testified. [The prosecutor] asked Miss
Truschke about statements made by [defendant] regarding being a suspect in a shooting.
Miss Truschke responded, ‘I recall something about a killing in Penryn or something.’
The prosecution and the defense stipulate that [defendant] was never a suspect in a killing
in Penryn. The Court ordered that that testimony was stricken from the record at the
time. The parties have agreed to give you a further admonishment specifically that the
jury is not to use Miss Truschke’s inaccurate statement for any reason and is required to
disregard the statement in its entirety. And you’ll get this along with the jury instructions
as well.”
B. Analysis
“Under ordinary circumstances the trial court is permitted to correct an error in
admitting improper evidence by ordering it stricken from the record and admonishing the
jury to disregard it, and the jury is presumed to obey the instruction. [Citations.]”
(People v. Hardy (1948) 33 Cal.2d 52, 61.) However, in extreme cases, the error in
admitting highly prejudicial evidence cannot by cured where the incompetent evidence
goes to the main issue, it was unduly emphasized by the manner in which it was
presented to the jury, and where the proof of defendant’s guilt is not clear and
convincing. (Id. at pp. 61-62.)
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Defendant claims this is a case where the prejudicial effect of the evidence could
not be cured. He argues the jury, having heard defendant was a suspect in a killing that
involved a shooting, would believe he was a recidivist shooter with a propensity to shoot,
and on that basis conclude he intended to kill the officers.
The circumstances surrounding the statement were not so extreme as to prevent
any prejudicial effect from being cured. The statement did not go to the primary issue of
whether defendant intended to kill the officers. That defendant may have said something
to the witness about a killing in Penryn did not admit defendant did the killing, nor did it
prove he had the specific intent to kill the officers in this incident.
The statement was not unduly emphasized by the manner in which it was
presented to the jury. It was made on redirect examination, and it caught everyone off
guard. Because the prosecutor did not know the statement was going to be made, he
made no attempt to emphasize it to the jury. To the contrary, the prosecutor stipulated
that the statement was false, and the court informed the jury that both the defense and the
prosecution stipulated defendant was “never a suspect in a killing in Penryn.”
The statement could be cured because, in addition to the reasons just stated, proof
of defendant’s guilt in attempting to murder peace officers in this case was clear and
convincing. Upon hearing the Sheriff was at his location, he announced he was going to
go down with guns blazing, and he intentionally shot numerous times at Sergeant Woo
and his team and once at Deputy Tindall and his team. There was no reasonable doubt of
defendant’s guilt, as discussed earlier.
Under these circumstances, we conclude any possible prejudice that may have
arisen from Jolene Truschke’s testimony and the manner in which it was unexpectedly
and briefly blurted out could be cured. Furthermore, any prejudice was in fact cured by
the admonishment to the jury and the simple and clear stipulation between the
prosecution and the defense.
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V
Cumulative Error
Defendant claims the alleged errors in the proceeding, when considered
cumulatively, denied him a fair trial. Except for the lack of substantial evidence to
sustain all 10 convictions, we found no error. Thus, we also find no cumulative error.
DISPOSITION
The judgment as to counts nine, eleven, fifteen, seventeen, and nineteen are
reversed. The clerk of the trial court is ordered to prepare and forward to the Department
of Corrections and Rehabilitation an amended abstract of judgment striking the
convictions, enhancements, and sentences previously imposed by the trial court on counts
nine, eleven, fifteen, seventeen, and nineteen. The amended abstract must also state
defendant was convicted on count twenty under section 245, subdivision (d)(2), assault
with a firearm against a peace officer, and that all of the attempted murder convictions
were violations of sections “664(e)/187(a).” In all other respects, the judgment is
affirmed.
NICHOLSON , Acting P. J.
We concur:
BUTZ , J.
MAURO , J.
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