Lead Opinion
Opinion
Timothy Neal Bostick was convicted by a jury of voluntary manslaughter, with a special finding that he discharged a firearm from a motor vehicle causing another’s death, within the meaning of Penal Code section 12022.55 (all further unspecified statutory references are to the Penal Code). Sentenced to a total term of 11 years in prison, Bostick seeks reversal on the grounds that the trial court prejudicially erred in excluding testimony regarding the victim’s use of cocaine and that the jury should have been instructed that the gun enhancement statute contains an implied “drive-by” element. We disagree on both counts and affirm the judgment.
Background
In 1987, Dena Wright (Dena) began a relationship with the victim in this case, Eric Riggins, when she was 14 years old. She moved in with Riggins and gave birth to a son, Jaray, in 1988. During their relationship there were incidents where Dena was subject to severe physical abuse by Riggins, some of which were reported to the police. Riggins would slap her and hit her. He broke her wrist when she was three months pregnant; when she was eight months pregnant he struck her, causing her to fall and hit her head on a nightstand. On another occasion, he threw her against a wall so hard she smashed a hole in it. On a third occasion, in a jealous fit over some flowers a client had sent her, Riggins threw Dena out of a moving car, grabbed her up by the hair and subjected her to more physical abuse for another hour.
The abuse stopped once Dena broke up with Riggins in January 1991. She met Bostick in January 1993 and they developed a romantic relationship. Dena told Bostick about the incidents of abuse at the hands of Riggins.
A week before the shooting, Dena had forgotten to pick up Jaray from child care because she was ill. Riggins showed up at her house and was furious. He demanded to speak to her, followed her out of the car, grabbed her face and slammed it against the car window. Dena told Bostick about the incident.
On December 4, 1993, Riggins walked into Dena’s place of work, angry because she had lied to him about Jaray’s whereabouts. After a brief
Around 10:30 or 11 a.m. three men working on a truck on 10th Street across from Riggins’s mother’s house saw a Dodge Stealth, driven by Bostick, pull up in front of the house. Bostick remained in his car. Riggins waved to Bostick and walked up to the driver’s side. The men saw Riggins leaning over the car, speaking with Bostick. Riggins did not look angry and he did not have a bulge anywhere in his pockets. There was no yelling, threats or scuffling.
After about five to ten minutes, a shot rang out. Riggins grabbed his shoulder and fell to the ground, yelling, “I’ve been shot.” Bostick drove away, smiling. Later, he told Dena that he had “popped” Riggins. He gave the gun to a friend and told him to dispose of it. No weapons were found on Riggins or in the vicinity.
Bostick testified about his relationship with Dena in which she told him about Riggins’s quick temper and the upsetting incidents of past abuse. Riggins and Bostick had two confrontations prior to the shooting and they had threatened each other several times. Bostick commented that Riggins needed to “get his ass kicked.” Riggins once suggested that if Bostick interfered in a dispute with Dena over his son, Bostick would get “blasted.” Bostick was very upset after Riggins assaulted Dena, about a week before the incident. He feared Riggins and decided to get a gun for his protection.
The day of the shooting, Dena called Bostick that morning very upset, “hysterical basically.” She told him Riggins had taken her purse and asked him to get it back. Bostick left his job and drove to Riggins’s house. He assumed Riggins was in “some messed up mental state.” Riggins walked over to Botstick’s car, which was parked on a public street abutting a vacant lot, and began conversing with him. Bostick sensed a little “animosity” in Riggins’s voice. Bostick was nervous and wondered who the men across the street were. He took out his gun and kept it nearby. Bostick asked Riggins for Dena’s purse. Riggins wanted to know where his son was and refused to give him anything until he saw his son. The conversation between them “started to boil” and Bostick felt himself becoming upset and afraid. Riggins was wearing baggy clothes and making motions toward the back of his pants, leading Bostick to believe he might be checking a weapon of some kind. Bostick pulled out the gun and fired. He shot Riggins because the
Appeal
I
Exclusion of Cocaine Intoxication Evidence
II
Section 12022.55 Enhancement
The jury made a special finding that Bostick discharged a firearm from a motor vehicle, resulting in the death or great bodily injury of the victim, within the meaning of section 12022.55.
The contention, made without any supporting case authority, must be rejected. Section 12022.55 is plain on its face that all that is required is that death or great bodily injury be inflicted “as a result of discharging a firearm from a motor vehicle.” The term “drive-by” does not appear anywhere and Bostick cites no language remotely suggesting the vehicle must be in motion for the enhancement to apply. It is a cardinal rule that where a statute is facially clear and unambiguous, no judicial interpretation is necessary. (People v. Bunyard (1988)
Furthermore, firing a gun from a motor vehicle is an especially treacherous and cowardly crime. It allows the perpetrator to take the victim by surprise and make a quick escape to avoid apprehension, as illustrated by the facts here. The Legislature could rationally have determined that the foregoing considerations justify imposing an increased sentence on the perpetrator.
Unlike our concurring colleague, we find no “overinclusiveness” in the statute. (Conc. opn., post, at p. 297.) While “drive-by” shootings certainly grab the headlines and may well have provided the impetus for passing section 12022.55, the use of a motor vehicle as a staging ground for shootings which cause death or great bodily injury, whether the vehicle happens to be in motion or stationary, on a public street or private property, is a greater evil which the Legislature could and did attempt to deter through the clear language of the statute.
Based upon the plain meaning of the statute, we reject appellant’s theory of section 12022.55.
Disposition
The judgment is affirmed.
Phelan, J.,
Notes
See footnote, ante, page 287.
Section 12022.55 provides: “Notwithstanding Section 12022.5, any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, as defined in Section 12022.7, or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony, shall, upon conviction of the felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for 5, 6, or 10 years.”
Presiding Justice of the Court of Appeal, First District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Concurrence Opinion
I concur in the judgment because I agree it was proper to exclude evidence of the victim’s cocaine use and that Penal Code section 12022.55
Gang-related drive-by shootings had become a significant social problem in California in 1987—indeed, an “epidemic”
Because section 12022.55 was enacted during a special session of the Legislature as an urgency measure (Assem. Bill No. 13, 1993-1994 First Ex. Sess.), there is little in the way of a direct legislative history.
The case law applying section 12022.55 reflects a judicial understanding that this sentence enhancement was designed to achieve the same purpose. Section 12022.55 has been applied in 12 cases that resulted in a published appellate opinion. In none of these cases was the enhancement applied to the discharge of a firearm from a vehicle not then being used on a public street or highway. In all but two of the cases the defendants were declared or suspected gang members who discharged a firearm from a vehicle then in use on a public thoroughfare. (People v. Gonzales
For the foregoing reasons, appellant argues that section 12022.55 should be held applicable only to the discharge of a firearm from a motor vehicle that is moving. Appellant emphasizes that “[w]hen language which is susceptible of two constructions is used in a penal law, the policy of this state
The problem with this argument, and the reason I reject it, is that it rests on the assumption that section 12022.55 is truly ambiguous as to whether it applies to the discharge of a firearm from a vehicle not then in use. Certainly there is no facial ambiguity, in the sense that the term “motor vehicle,” or any other words in the statute are “capable of being construed in two different ways by reasonably well informed people,” which is the test conventionally used to determine ambiguity. (2A Sutherland, Statutory Construction (5th ed. 1992) § 45.02, pp. 5-7, § 46.04, p. 99.) Most reasonable people would agree that a “motor vehicle” is a self-propelled device used for the transportion of people or goods upon a street or highway, other than a device used exclusively upon rails or tracks. This common understanding of what constitutes a “motor vehicle,” which is consistent with pertinent statutory definitions (see Veh. Code, §§ 415, 670), does not depend on whether the vehicle is moving at any particular time, and has even been employed to describe a vehicle that is temporarily inoperable. (Arrellano v. Moreno (1973)
The asserted ambiguity in section 12022.55 arises not from the language of the statute but by considering that reasonably clear language in the light of the apparent legislative purpose. This is not, however, the sort of ambiguity that calls for judicial interpretation. Courts inquire as to the legislative purpose to resolve ambiguity, not to create it. The fact that section 12022.55 has a broader reach than may have been necessary to achieve its purpose does not mean it is unclear. The ambiguity that warrants judicial interpretation must be inherent in the statute itself or in the entire scheme of which it is part. Thus, while courts sometimes reject the so-called “plain meaning" of words in a statute, they do so only where the literal meaning would either frustrate the statutory purpose (see, e.g., Friends of Mammoth v. Board of Supervisors (1972)
Application of section 12022.55 to the discharge of a firearm from a vehicle not then being operated would not defeat or obstruct the legislative
Appellant’s contention that section 12022.55 is not plain on its face, and that the limitation he urges may therefore be judicially implied, rests primarily on In re Jose D, supra,
The failure of the Legislature to expressly indicate whether section 12022.55 applies to the discharge of a firearm from a motor vehicle not then in use does not pertain to the question of derivative liability at issue in Jose D., nor relate to the subject of any established judicial presumption the Legislature can overcome only by speaking explicitly. (See, e.g., In re Estrada (1965)
Because it does not serve the purpose of section 12022.55, the imposition of a five-year sentence enhancement on a defendant who discharges a firearm from a vehicle not then in use on or near a public street or highway was probably not anticipated by the Legislature, which might therefore wish to reconsider the overinclusiveness of the statute. The failure of the Legislature to anticipate the gratuitously broad application the statute may have cannot, however, influence our assessment of its ambit. As has been noted, “if [the Legislature] has made a choice of language which fairly brings a given situation within a statute, it is unimportant that the particular application may not have been contemplated by the legislators.” (Barr v. United States (1944)
For the foregoing reasons, I concur in the judgment.
A petition for a rehearing was denied June 27, 1996, and appellant’s petition for review by the Supreme Court was denied September 4, 1996.
All statutory references are to the Penal Code.
See Hutson et al., The Epidemic of Gang-Related Homicides in Los Angeles County From 1979 Through 1994 (Oct. 4, 1995) 274 J. Am. Med. Assn. 1031.
However, the urgency clause which accompanied the measure that became section 12022.55 explains that it is essential that the bill take effect immediately “in order to deter persons from violent acts upon our public streets and highways . . . .” (Stats. 1987, ch. 1147, § 5, p. 4060, italics added.)
The United States Supreme Court has, for example, “specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. ‘According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings—A Tactical Evaluation, 54 J. Crim. L. C. & P. S. (1963).’ Adams v. Williams,
Defendant has staked his appeal on questions of statutory construction and not any claim that the statute may be unconstitutional on its face or as applied to him. He does not contend, for instance, that the statute is fatally overinclusive for punishing conduct not within the apparent legislative purpose, or is underinclusive for excluding conduct which may appear materially indistinguishable from included conduct. (See Brown v. Merlo (1973)