Opinion
A jury convicted defendant Alejandro M. Lee as charged in count 1 of attempted murder of Turk Young, Jr., with premeditation and deliberation (Pen. Code, §§ 664, 187) 1 and in count 2 of assault with a firearm against Sean Green (§ 245, subd. (a)(2)). The jury found true the special allegations as to both counts that Lee had personally used a firearm (§ 12022.5, subd. (a)) and as to count 1 that Lee had inflicted great bodily injury (§ 12022.7). Lee moved to modify the verdict to attempted voluntary manslaughter or attempted murder without premeditation and deliberation. The motion was denied.
The court sentenced Lee to state prison for life for cоunt 1 with a consecutive four-year middle-term enhancement for firearm use and a consecutive three-year middle-term enhancement for inflicting great bodily
On appeal, Lee contends: (1) the trial court committed reversible error in failing to instruct the jury it could consider provocation by the victim in determining whether the attempted murder was committed with premeditation and deliberation; (2) the trial court erred in instructing the jury оn the doctrine of transferred intent with respect to count 2; (3) the evidence was insufficient to establish assault with a firearm; (4) the trial court erred in failing to instruct the jury it must unanimously agree on which act or acts constituted the offense of assault with a firearm; (5) the trial court erred in failing to instruct the jury sua sponte with CALJIC No. 2.71; (6) the trial court erred in permitting Lee to be impeached with his juvenile record; and (7) the trial court erred in instructing the jury with two instructions on consciousness of guilt because there was no evidence to support such instructions.
Facts
In the evening of September 19, 1992, Norvile Gill, Tyrone Davis, and Stacy Clаrk picked up Lee at the Riverside Greyhound terminal in a white Geo Metro hatchback. Gill had no weapons and saw none on Davis or Clark. Lee placed a black gym bag in the car. Someone suggested going to Castle Park, an amusement park in Riverside.
The four arrived there about 10 p.m. and Gill went into the arcade section. When he came back out five minutes later, Lee was having an argument with two other young men. The two had approached Lee and asked him what gang he was from. Lee replied, “ ‘We’re not here about that. Just came to have a good time.’ ” One of the men uttered an obscenity and Lee turned and walked back toward the parking lot with his companions.
Turk Young, Jr., had been at Castle Park with several friends. He left the arcade to take a walk with his friend J.R. J.R. pointed out that some people kept looking at them. Young then confronted Lee, asking whether “it [was] a problem or something.” Lee and Young “mad dogged” each other, i.e., engaged in “‘[a] practice where they become involved in a stare down, maintaining eye contact between two parties that may or may not know each other, and a nonverbal challеnge of some type.’ ” Young became angry because Lee’s “little buddies or whoever was with him, his friends and stuff, you know, they was sitting on the side, you know, giggling and laughing about it and stuff, you know.” A bypasser heard someone say, “ ‘We’ll go banging.’ ”
According to Young, however, he and his group were walking toward their car in the parking lot when they saw a white car back out of a parking space 40 or 45 feet away. Young saw the rear hatchback open, and his friend Sean Green said, “They got a gun.” Young and his friends turned to run, and several shots were fired rapidly from the car. Young testified that he did not have a weapon that night, and, to his knowledge, none of his friends had a weapon either.
Other witnesses testified that when Lee and his companions reached the car, Lee said, “I’ve got something for them.” Lee went to the hatch area and looked in his gym bag. Young and his group were then 40 or 45 feet away. Lee and his companions got in the car; the hatch was still up. Gill backed the car out, and Lee leaned over the back seat and fired three shots. Young was hit twice in the thigh. 2 The third shot hit a masonry wall. Green was right beside Young when the shots were fired.
Traffic blocked the exit to the park, so Lee and his companions got out of the Geo and ran. The police later discоvered Gill and Lee hiding under a motor home nearby and arrested Davis and Clark at Castle Park. When they were in custody awaiting booking, Lee told the others, “ ‘If they ask you anything, tell them you just heard shots and you ran.’ ” During police interviews, Gill told the police he had seen a black handgun in Lee’s possession. Gill denied this at trial. The gun was never recovered.
Defense.
Davis testified six men initially confronted Lee and were “shoving at” him. He heard one of them direct another to “get somebody because he got a ‘strap,’ ” i.e., a gun. Gill gave a defense investigator a similar report.
Lee testified he had been “convicted” as a juvenile of burglary in 1991 and of misdemeanor grand theft in 1990. On September 19,1992, he had just attended the funeral of his 16-year-old brother who had been killed in a gang
When Gill and the others picked him up, he had intended to get his car, but instead the group ended up at Castle Park. A few minutes after he entered the park, two men approached him. Lee identified Young аs one of the men, although he did not know Young at the time. Lee was five feet six inches tall and weighed about one hundred thirty-five pounds. Young was six feet two inches tall and weighed about two hundred pounds.
Young said, “‘Why you mad dogging my homeboy?’ ” Lee said, “Who are you? Why is he not over here saying I’m looking at him crazy?” The other person said, “Let me go get such and such. He has a ‘strap.’ ” Lee understood him to mean he was going to get someone who had a gun. The man who said that went in the arcade while Young kept yelling and making threatening gestures as if he were about to strike Lee. Lee then decided to leаve. He gathered his friends, and they started walking to the car.
When he looked back, he saw the man who had entered the arcade emerge “with a lot of guys.” Eight or nine men followed them back to the car. Lee became more and more scared. He said, “I got something for them” as they approached the car, meaning he had a gun for protection if needed.
At the car, Lee looked back and saw a gun in Young’s hand. Lee grabbed his gym bag and removed his gun. Young drew his gun, and Lee fired. He never meant to kill anyone. Before firing, he yelled “duck” to warn the other occupants оf the car that Young was about to shoot them.
After the shooting, Lee got out of the car and ran. He did not know what happened to the gun. He placed it in his waistband and lost it when running away.
When he was arrested, he told the officer he did not know anything about a shooting. He lied to the officer because he was “scared and nervous.” He did not know he had hit anyone. He never told the police Young had pointed a gun at him because he knew nothing about the law of self-defense. He did not recall telling the police they had nothing on him because they had not found the gun. The police never asked him to help find the gun.
Rebuttal.
A police investigator testified that Lee did not act scared but rather was truculent during interrogation. He refused to help look for the gun. He said,
Discussion
I
Failure to Instruct on Provocation by Victim
Lee complains the trial court erred by failing to instruct the jury sua sponte that it could consider provocation by the victim in determining whether Lee acted with premeditation and deliberation.
The jury was instructed based on CALJIC No. 8.42, “To reduce the offense of attempted murder to attempted voluntary manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of such character and degree as normally would excite and arouse such passion, and the assailant must act under the influence of that sudden quarrel or heat of passion.”
The jury was further instructed based on CALJIC No. 8.42, “If there was provocation but of a nature not normally sufficient to arouse passion, or [i]f sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return, and if an unlawful attempted killing of a human being followed such provocation, and had all the elements of murder as I have defined it, the mere fact of slight or remote provocation will not reduce the offense to attempted voluntary manslaughter.”
Lee complains, however, that these instructions failed to inform the jury that “ ‘[t]he existence of provocation which is not “adequate” to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation.’ ”
(People
v.
Wickersham
(1982)
Thus, Lee asserts, the jury should have been instructed under the language of CALJIC No. 8.73 (1992 rev.) (5th ed. pocket pt.), which states, “If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for such bearing as it may have on whether the defendant killed with or without deliberation and premeditation.”
Lee contends such an instruction is required sua sponte when supported by sufficient evidence of provocation. Here, the evidence would have supported
To support his argument that a sua sponte instruction was required, Lee cites
People
v.
Johnson
(1993)
In
Johnson,
the court cited
Wickersham
with approval on the issue of sua sponte instructions on provocation and second degree murder, but determined there was no evidence in the record to support any instructions on provocation. The court further noted such instructions would have been inconsistent with the defendant’s alibi defense.
(People
v.
Johnson, supra,
The People contend the language in
Perez
and
Johnson
on which Lee reliеs is merely dicta, and both cases are inconsistent with
People
v.
Saille
(1991)
Here, the instruction Lee argues for was not an instruction on a defense. Rather, it was an instruction that related certain evidence to an element of the crime and attempted to raise a reasonable doubt as to that element. Such an instruction is a pinpoint instruction under
Saille,
and as such, need not have been given sua sponte.
(People
v.
Saille, supra,
II
Sufficiency of Evidence of Count 2
Lee contends his conviction of count 2 must be reversed because no evidence showed he attempted to shoot Green. Rather, he contends, the evidence showed that he intended to shoot only Young.
When a defendant on appeal challenges the sufficiency of the evidence to support his conviction, the court “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
People
v.
Johnson
(1980)
“An assault is an attempt to commit a battery. [Citation.] Assault with a deadly weapon is termed a ‘general intent’ crime because it is not necessary to find a specific intent to cause a particular injury. What is required, however, is the general intent to willfully commit a battery, an act which has the direct, natural and probable consequences, if successfully completed, of causing injury to another. [Citations.] Intent tо frighten or mere reckless conduct is insufficient. [Citation.]”
(People
v.
Brown
(1989)
In context, it appears the defendant in
Birch
was unaware of the presence of Officer Council on the porch. (See
People
v.
Griggs
(1989)
Here, it was undisputed that Lee was aware of the presence of the group, including Green, who were near Young as they moved toward the parking lot. Thus, this case more closely resembles
People
v.
Spence
(1970)
The jury could reasonably conclude that Lee intended to harm not only Young, but also some or all of his companions. Witnesses testified that Lee was confronted outside the arcade by both Young and J.R. Lee responded by challenging both of them; specifically, he asked Young why his friend was
We conclude the evidence was sufficient to sustain the conviction.
Ill
Instruction on Transferred Intent
In a related argument, Lee contends the court erred in instructing the jury on the doctrine of transferred intent under CALJIC No. 9.10 3 in connection with count 2, assault with a firearm on Green. Lee points out that Green, thе victim of count 2, was not an intended target of Lee’s gunfire, and he was not struck by gunfire.
Lee contends that no evidence suggested that Lee aimed at Green; the prosecutor conceded that Green was not a target of the shooting. Lee’s argument is based on the premise that he fired only at Young because Young had a gun. In convicting Lee of attempted murder with premeditation and deliberation, the jury obviously rejected Lee’s testimony to that effect. Lee’s view of the evidence, even if accepted by the prosecutor, is not the only reasonable view. As discussed above, the jury could reasonably infer from the evidence that Lee intended violence toward Young and some or all of the group accompanying him.
As noted above, assault with a firearm is a general intent crime, not a specific intent crime.
(People
v.
Colantuono
(1994)
“ ‘The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary.’
Under Colantuono and Rocha, a defendant need not intend to strike any particular person to be guilty of an assault, and it is therefore irrelevant whether the defendant strikes his intended victim or another person. It follows that the doctrine of transferred intent does not apply at all in an assault case; there is no specific intent to transfer.
Prior to
Rocha,
however, several courts, including the Supreme Court, applied the doctrine of transferred intent to the crime of assault. (See, e.g.,
People
v.
Henderson
(1949)
The court noted that “the doctrine of transferred intent was developed for the purpose of redressing physical injury.”
(People
v.
Williams, supra,
In our view, Cotton and Williams were wrongly decided; they did not consider the implications of Rocha, and they are inconsistent with both Rocha and Colantuono. Thus, the jury should not have been instructed on the doctrine of transferred intent.
IV, V *
VI
Impeachment With Juvenile Record
Before trial, defense counsel sought a ruling on the use of “certain juvenile priors which Mr. Lee has sustained.” The court indicated it would allow Lee to be impeached with a misdemeanor grand theft and a felony burglary because both crimes invоlved moral turpitude and both were recent.
When Lee testified, his counsel asked him whether he had “committed and [was] later convicted of a burglary charge,” and had “committed and [was] later convicted of ... a misdemeanor, grand theft,” “both of those as a juvenile.” 7 The court instructed the jury that juvenile misconduct could be considered for determining the credibility of a witness.
In
People
v.
Wheeler
(1992)
In
People
v.
Sanchez
(1985)
Jackson is distinguishable on the facts. In Jackson, the parties stipulated that “a valid order of dismissal had been entered as to appellant’s prior convictions pursuant to [Welfare and Institutions Code] section 1772.” (People v. Jackson, supra, 177 Cal.App.3d at p. 711.) For Welfare and Institutions Code section 1772 to apply, there must have been an honorable discharge by the Youthful Offender Parole Board. Here, the record is silent on that issue. Thus, we need not decide whethеr Wheeler has abrogated the holding of Jackson. The issue is not properly before us.
The People assert that the trial court did not permit the impeachment with prior juvenile
adjudications.
The People claim that in ruling on Lee’s pretrial motion, the court stated that the conduct underlying such offenses could
In response, Lee notes that the court did not limit its ruling to evidence of conduct. The court stated, “But I think I would limit the District Attorney to examining the defendant if he takes the stand and testified: Is it true that you have admitted in the past to having committed a burglary, and a grand theft person in a judicial proceedings?” (Italics added.) The court further stated, “So, in my view, [Lee] should be impeached with them and the fact that he has admitted to that conduct.”
We conclude that under Wheeler, at least in cases which do not fall under Welfare and Institutions Code section 1772, the prosecution may introduce prior conduct evincing moral turpitude even if such conduct was the subject of a juvenile adjudication, subject, of course, to the restrictions imposed under Evidence Code section 352 and other applicable evidentiary limitations.
In any event, this is not a case in which the evidence was so closely balanced that any error was necessarily prejudicial. The prosecution presented overwhelming evidence of Lee’s guilt. Lee’s testimony, and hence his credibility, was important to the defense; however, the case did not turn solely on Lee’s credibility. Other evidence supported the implausibility of Lee’s version of the events. The prosecutor introduced into evidence the clothing Young wore on the evening of the shooting to demonstrate that Young had nowhere to conceal a weapon. Thus, the physical evidence сontradicted Lee’s story. No evidence corroborated Lee’s story that he saw a gun in Young’s hand before firing at Young. Moreover, Lee had never told the police he had seen a gun in Young’s hand before the shooting. Immediately after the shooting, Lee took flight. After his arrest, Lee lied to the police and exhorted his friends to lie also. Such conduct could be used to show his consciousness of guilt. We conclude any error was harmless.
Disposition
The judgment is affirmed.
Ramirez, P. J., and McKinster, J., concurred.
A petition for a rehearing was denied October 28, 1994, and appellant’s petition for review by the Supreme Court was denied January 19, 1995.
Notes
All further statutоry references are to the Penal Code unless otherwise indicated.
The parties stipulated the shots had caused great bodily injury.
The court instructed the jury with CALJIC No. 9.10, “Where one attempts to assault a certain person with a firearm but by mistake or inadvertence assaults a different person, the crime if any so committed is the same as though the person originally intended to be assaulted had been assaulted.”
The jury was instructed, based on CALJIC No. 9.00, “intent” element of assault as follows: “The person making the attempt [to apply physical force upon the person of another] had a general criminal intent, which, in this case, means that such person intended to commit an act, the direct natural and probable consequences of which if successfully completed would be the application of physical force upon the person of another.”
See footnote, ante, page 1724.
During sentencing, defense counsel stated that the prosecutor had informed him the prior juvenile burglary charge had been dismissed. Thus, Lee claims he was impeached not only with his juvenile record, but also with a phantom prior conviction. Nonetheless, for reasons we discuss, post, the mention of the burglary “сonviction” was harmless error regardless of whether the burglary had ever been adjudicated.
“Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.” (Cal. Const., art. I, § 28, subd. (f).)
The court stated, “So, the way it would come up is under People versus Wheeler, which is a past conduct showing moral turpitude, which would be used to impeach the credibility of witnesses. . . .
“It’s my understanding of the law that now conduct showing moral turpitude would be admissible. It is also my understanding of the law under [Evidence Code section] 352,1 can control the evidence in those regards, so they won’t have miniature trials within this larger trial.”
See footnote, ante, page 1724.