Opinion
I.
INTRODUCTION
Defendant and appellant Ralph Carl Palmer committed an armed robbery of a Stein Mart store. As Palmer was attempting to drive from the crime scene, La Verne Police Officer Michael Burks stopped Palmer in the store parking lot. As Burks was exiting his patrol vehicle, Palmer suddenly exited his car, swiveled around, and shot at Burks. Burks dove for cover behind his patrol vehicle’s door, breaking his ankle in the process. A jury convicted Palmer of second degree robbery, attempted murder, and assault on a peace officer with a semiautomatic firearm. It also found true allegations that Palmer personally and intentionally used and discharged a firearm during commission of the attempted murder and assault, proximately causing great
bodily injury. (Pen. Code, § 12022.53, subd. (d).)
1
As a result of the jury’s findings on the section
In the published portion of this opinion, we conclude that the section 12022.53, subdivision (d) enhancement for discharging a firearm, proximately causing injury, is satisfied even though the injury at issue is not a bullet wound but a broken ankle resulting from the victim’s evasive action. We further conclude the evidence was sufficient to prove the injury was caused by the discharge of the gun, rather than the mere pointing of the gun, and defense counsel therefore was not ineffective for failing to advance an insufficiency theory. Finally, we conclude that the jury was not mislead by CALJIC No. 17.19.5.
In the unpublished portion of the opinion, we consider and reject Palmer’s contentions that the trial court committed instructional error; his counsel was ineffective; the trial court erred by allowing admission of evidence of a prior conviction and prison term; the trial court erred by denying his Pitchess 2 motion for in camera review of peace officer records; the prosecutor committed prejudicial misconduct; jurors committed prejudicial misconduct; the trial court failed to exercise informed discretion when sentencing him; and his sentence was imposed in violation of Blakely v. Washington. 3
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts.
On the evening of December 23, 2001, Palmer robbed three employees at a La Verne Stein Mart store. Palmer, who was wearing a beanie with a star embroidered on the front, and a bandanna covering his face from the nose down, entered the store carrying a semiautomatic firearm. He approached cashier Dustin Figueroa, who was counting the money in the register, pointed the gun at Figueroa, and told him to leave the register open. Palmer took bills from the register and placed them into a black pouch he was carrying.
Palmer then approached cashier Sara Guillen. While holding the gun, he told her to “open [her] till.” She backed away and allowed Palmer to remove money from the register. Palmer took only bills, not coins.
Assistant manager Jill Cochran was at the front of the store when Palmer entered. Alarmed by the fact he was wearing a bandanna over the lower half of his face, she headed to the customer service desk to telephone police. Palmer displayed the gun and told her not to move.
After removing money from the two registers, Palmer departed. Cochran telephoned police.
La Verne Police Officer Michael Burks, who was on patrol without a partner, happened to be in the Stein Mart parking lot when Palmer hastily departed from the store. Palmer was no longer wearing the bandanna over his face. When Palmer saw Burks, Palmer entered a dark-colored Mazda. As Palmer was backing out, Burks received a radio call regarding the robbery. Because the description of the robber matched Palmer’s appearance, Burks drove behind the Mazda and activated the patrol car’s lights. Palmer “almost instantaneously” stopped the Mazda. As Burks was exiting his patrol car, Palmer
Palmer sped down Foothill Boulevard, committing various traffic violations and accelerating to speeds up to 100 miles per hour. Travis Bauer, an off-duty police officer for the City of Covina, observed Palmer’s driving. He followed Palmer and telephoned police. Eventually Palmer crashed into a chain link fence. Bauer approached Palmer’s vehicle to determine whether anyone was hurt. Palmer emerged from the driver’s side and fled, eluding authorities.
The Mazda was determined to belong to Palmer’s girlfriend, Sonja Edwards. Edwards reported the car as stolen approximately one hour after the crash. In the Mazda, officers discovered, among other things, an employee identification card bearing Palmer’s name and photograph, and a roll of film that, when developed, contained a photograph of Palmer. Eight hundred dollars, the same amount taken from the Stein Mart store, was also discovered in the car. The first four digits of the vehicle’s license plate corresponded to those reported to the dispatcher by Officer Burks. The vehicle’s airbags had deployed during the crash, and Palmer was the “major donor” of DNA found on the driver’s side airbag, suggesting he was the person who was struck by the airbag during the collision. Edwards told police that Palmer owned a white beanie with a star logo embroidered on the front.
B. Procedure.
Trial was by jury. Palmer was convicted of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)); assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2)); and three counts of second degree robbery (§ 211). The jury further found true allegations that Palmer attempted to murder a peace officer engaged in the performance of his duties; personally and intentionally used and discharged a firearm during commission of the attempted murder and assault, proximately causing great bodily injury (§ 12022.53, subds. (b), (c), (d)); and personally used a firearm during commission of the robberies (§ 12022.53, subd. (b)). In a bifurcated proceeding, the trial court found true allegations that Palmer had suffered three prior serious or violent felonies (§§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court sentenced Palmer to a term of 155 years to life in prison, and imposed a $10,000 restitution fine and a stayed parole revocation fine in the same amount. Palmer appeals.
III.
DISCUSSION
A. Issues related to the section 12022.53, subdivision (d) enhancements.
As noted, Palmer’s sentence was enhanced as a result of the jury’s findings that he personally discharged a firearm, proximately causing great bodily injury to Officer Burks. Palmer challenges the jury’s true findings on the section
1. Section 12022.53, subdivision (d)’s proximate cause and injury requirements.
Section 12022.53, also known as the “10-20-life” law (Assem. Bill No. 4 (1997-1998 Reg. Sess.)), was enacted in 1997 to substantially increase
the penalties for using firearms in the commission of enumerated felonies, including, as relevant here, attempted murder and assault on a peace officer with a firearm. (§ 12022.53, subd. (a)(1), (7), (18);
People v. Oates
(2004)
“In construing a statute, our task is to determine the Legislature’s intent and purpose for the enactment. [Citation.] We look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity in the statutory language, its plain meaning controls; we presume the Legislature meant what it said. [Citation.] ‘However, if the statutory language permits more than one reasonable interpretation, courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute.’ [Citations.]”
(People
v.
Garcia, supra,
The
We believe it is equally clear that a defendant can proximately cause injury by discharging a firearm within the meaning of section 12022.53, subdivision (d)
The California Supreme Court disagreed with the Court of Appeal, reasoning as follows. “Section 12022.53(d) requires that the defendant ‘intentionally and
personally
discharged a firearm’ . . . but only that he ‘proximately caused’ the great bodily injury or death. The jury, properly instructed, reasonably found that defendant did personally discharge a firearm. The statute states nothing else that defendant must
personally
do. Proximately causing and personally inflicting harm are two different things.”
(People v. Bland, supra,
In the instant case, of course, the victim’s injury was not a gunshot wound, but a broken ankle suffered when he attempted to avoid being shot. Nevertheless, Bland’s reasoning directly informs our analysis. Bland made clear that section 12022.53, subdivision (d) does not require the defendant personally inflict the injury. Bland teaches that, as long as the injury was proximately caused by the discharge of the firearm, the statute’s requirements are met. Put differently, the defendant’s discharge of a firearm may be the proximate cause of a victim’s injury, even if the defendant’s bullet does not hit the victim. Applying that principle here, the statute does not require that the qualifying injuries are limited to bullet wounds.
Nothing in the statutory language or legislative history suggests a different conclusion. To the contrary, both support our analysis.
The Legislative purpose to protect citizens from injury and deter violent crime would not be furthered if subdivision (d) was interpreted to encompass only bullet wounds. It is surely to be expected that persons attempting to dodge a bullet may react in panic with evasive maneuvers that are likely to cause injury to themselves or others. There appears to be no principled reason to distinguish the type of injury here—suffered when the victim took life-saving evasive action—from a direct hit by the bullet. Both are equally caused by the discharge of the firearm. In both instances, the defendant’s culpability is the same. A defendant should not benefit simply because he or she is a bad shot, or because the victim is fortuitously able to move out of harm’s way.
Moreover, the plain language of the statute supports our conclusion. Had the Legislature wished to limit section 12022.53, subdivision (d)’s reach to gunshot wounds only, it certainly could have said so. Instead, it used the phrase “great bodily injury,” which on its face does not narrow the statute’s reach to gunshot wounds. Further, the existence of the proximate cause requirement supports the conclusion that other injuries qualify to impose the enhancement. Had the Legislature intended the statute to encompass only gunshot wounds, the proximate cause requirement would have been unnecessary. If the victim is hit by the defendant’s gunshot, the discharge would necessarily be the
actual
cause of the injury, and the proximate cause
requirement would be superfluous. “ ‘Courts should give meaning to every word of a statute if possible, and should avoid a construction mating any word surplusage. [Citation.]’ [Citation.]”
(People v. Flores
(2005)
In sum, the plain language of the statute, as well as its underlying purpose, supports the conclusion that section 12022.53, subdivision (d) encompasses any injury, not just bullet wounds, when the defendant’s discharge of a firearm was the proximate cause of the injury.
We next turn to the question of whether the evidence was sufficient to establish Palmer’s gunshot was the proximate cause of Officer Burks’s broken ankle. Palmer argues the evidence was insufficient, because Burks dove for cover when Palmer pointed the gun at Burks, not when Palmer actually discharged the gun. Again, we disagree.
When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment 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.’ [Citations.]”
(People
v.
Hillhouse
(2002)
Here, the evidence was sufficient to establish Burks’s injury was the result of Palmer’s discharge of the firearm, rather than a distinct act of pointing the gun. Burks testified that he received the dispatch informing him of the robbery; observed Palmer and radioed his observations to the dispatcher; and activated his vehicle’s lights. Palmer stopped his car. Burks put his patrol vehicle in park and exited, simultaneously unholstering his weapon. At the same time, Palmer exited his vehicle, swiveled around, and pointed the gun at Burks’s chest. The gun was pointed at Burks “almost instantaneously” when Palmer swiveled out of the car. Burks dove for cover and saw the flash of the gun as he ducked behind the patrol vehicle’s door. At the same time he felt pain in his ankle. The entire incident transpired quickly; only a “second or two” elapsed from the time Burks activated his patrol vehicle’s lights and the shooting. There was no evidence that Palmer held Burks at bay by pointing the gun at him for a distinct period of time without firing. To the contrary, Burks’s testimony, fairly read, suggests that Palmer’s exit from the car, Burks’s dive for cover, and the discharge of the firearm occurred almost simultaneously.
Palmer’s argument rests upon the premise that the “discharge” of a firearm refers only to the instant the firearm’s trigger is actually pulled. Palmer’s interpretation of the statute is unduly crabbed. We see nothing in the statutory language that so limits the meaning of “discharge” as applied to the facts of this case, nor does Palmer cite any authority so limiting the term. The evidence recited above showed Palmer exited his vehicle and immediately turned, pointed the gun, and fired, all in one essentially seamless motion. The most reasonable interpretation of this evidence was that Palmer’s conduct of pulling out and pointing the gun, and pulling the trigger, all constituted a single act of “discharging” the gun for purposes of the statute. This was not a case in which the defendant pointed a gun for some distinct and significant period of time without firing, impelling the victim to dive for cover merely in response to the
pointing
of the gun. Palmer’s attempt to artificially compartmentalize
We do not disagree with Palmer that, had he pointed the gun at Burks for some significant length of time before firing it, and Burks’s injury occurred during that period, before the gunshot, the proximate cause requirement would not be established. It is axiomatic that X cannot be a proximate cause of Y if Y has already occurred before X. As
People v. Bland
explained, “Even if the jurors did not know exactly what proximate causation means, no juror who is conversant in the English language would find that discharging a firearm proximately caused injuries that had already occurred.”
(People v. Bland, supra,
3. CALJIC No. 17.19.5 adequately advised the jury of the relevant legal principles.
The trial court instructed the jury with CALJIC No. 17.19.5, the standard instruction pertaining to the section 12022.53, subdivision (d) enhancement. As relevant here, that instruction stated: “It is alleged . . . that the defendants] intentionally and personally discharged a firearm [and [proximately] caused [great bodily injury] to a person] during the commission of the crime[s] charged. [][] If you find the defendant] . . . guilty of [one or more of] the crime[s] thus charged, you must determine whether the defendants] . . . intentionally and personally discharged a firearm [and [proximately] caused [great bodily injury] to a person] [other than an accomplice] in the commission of [that] [those] [felony] [felonies]. [f] . . . [f] The term ‘intentionally and personally discharged a firearm,’ as used in this instruction, means that the defendant [himself] [herself] must have intentionally discharged it. [][]... [K] [A [proximate] cause of [great bodily injury]
CALJIC No. 17.19.5 directly tracks the language of section 12022.53, subdivision (d), which provides for the enhancement when the defendant “personally and intentionally discharges a firearm
and
proximately causes great bodily injury . . . .” (Italics added.) In the absence of a request for amplification, the language of a statute defining a crime is usually an appropriate and desirable basis for an instruction, as long as the jury would not have difficulty understanding the statute.
(People
v.
Roldan
(2005)
Because CALJIC No. 17.19.5 was an accurate statement of the law, we agree with the People that. Palmer’s claim is waived. It is of course true that a defendant need not object to preserve a challenge to an instruction that incorrectly states the law and affects his or her substantial rights. (§ 1259;
People v. Hillhouse, supra,
27 Cal.4th at pp. 505-506;
People v. Smithey
(1999)
Palmer argues that CALJIC No. 17.19.5 is flawed because it “failed to advise the jury that the injury suffered [by] Burks had to be proximately caused by the discharge of a firearm and not just proximately caused by appellant’s actions.” He complains that the instruction “presents two seemingly independent elements; (a) the defendant discharges a firearm; and (b) the defendant proximately causes great bodily injury.”
When reviewing a purportedly ambiguous jury instruction, we ask whether there is a reasonable likelihood the jury misconstrued or misapplied the challenged instruction.
(People v. Harrison
(2005)
Our Supreme Court has already determined in
People
v.
Bland, supra,
28 Cal.4th at pages 335 to 336, that CALJIC No. 17.19.5 correctly defines proximate cause. We are, of course, obligated to follow
In any event, we do not believe reasonable jurors would have interpreted the instruction as Palmer suggests. In essence, Palmer’s argument is that the instruction’s use of the conjunctive “and”—which tracked the statutory language—would have mislead the jury into considering the issue of proximate causation separately from the issue of discharge of the firearm. While such an interpretation might be possible if the instruction was viewed entirely out of context, we do not believe it is likely. The instruction was obviously addressed to, and linked, the issues of Palmer’s discharge of the firearm and Burks’s injury. The instruction’s language—“you must determine whether the defendant . . . intentionally and personally discharged a firearm and proximately caused great bodily injury to a person”—clearly tied the two elements together. Reasonable jurors would not have assumed the single word “and” meant the discharge and proximate cause issues were divorced from each other. To the contrary, the most natural and commonsense reading of CALJIC No. 17.19.5 is that the discharge of the firearm must be the proximate cause of the injury. There is no reasonable likelihood the jury would have construed the instruction to suggest a true finding was warranted if the great bodily injury was caused by something other than Palmer’s personal and intentional discharge of a firearm.
Moreover, on the facts of this case, the purported instructional error was harmless under any standard. (See, e.g.,
Neder v. United States
(1999)
4. Trial counsel was not ineffective for failing to argue the absence of proximate cause.
In a third related argument, Palmer urges that his trial counsel was ineffective for failing to advance the theory that the gunshot was not the proximate cause of Burks’s broken ankle, both by failing to argue in closing that there was
“In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]”
(People v. Carter
(2003)
Palmer has not met this burden. He has not shown that defense counsel was asked for an explanation but failed to provide one. The record before us does not suggest counsel’s performance was obviously inadequate, or that there could be no satisfactory explanation for his failure to argue the theory
proposed on appeal. To the contrary, counsel could have made a legitimate tactical choice not to argue that Burks dove for cover in response to the gun being pointed at him, rather than its discharge. Counsel could reasonably have concluded the argument was too hypertechnical to appeal to a jury of laypersons. Counsel may also have concluded, as we have set forth above, that Palmer’s actions of turning, pointing, and shooting the gun occurred as one seamless event, making the evidentiary basis for the proposed argument questionable at best. Counsel may have wished to concentrate on the argument he viewed as more persuasive—mistaken identity—rather than potentially confusing the issues and detracting from his credibility with the jury by making a nonpersuasive argument. (See
People v. Thomas
(1992)
[[B.-F.]] *
DISPOSITION
The judgment is affirmed.
Klein, P. J., and Kitching, J., concurred.
A petition for a rehearing was denied November 28, 2005, and appellant’s petition for review by the Supreme Court was denied February 22, 2006, S139624.
Notes
All further undesignated statutory references are to the Penal Code.
Pitchess v. Superior Court
(1974)
Blakely v. Washington
(2004)
Burks’s injury required that he wear a cast for three to four months. At the time of trial, he was still suffering swelling and bruising in his foot as a result of the break.
When Palmer committed the crimes in 2001, section 12022.53, subdivision (d) provided: “Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, and who in the commission of that felony intentionally and personally discharged a firearm and proximately caused great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by a term of imprisonment of 25 years to life in the state prison, which shall be imposed in addition and consecutive to the punishment prescribed for that felony.” (Stats. 2000, ch. 287, § 23.) Because the post-2001 amendments of the statute do not alter our analysis, for clarity’s sake we hereinafter refer to the current version of the statute.
We take judicial notice of the legislative history of the statute, as requested by the People. (Evid. Code, § 452, subd. (c);
People v. Muszynski
(2002)
In arguing for an alternative interpretation of section 12022.53, subdivision (d), Palmer invokes the “rule of lenity,” which compels a court to resolve true statutory ambiguities in a defendant’s favor.
(People v. Oates, supra,
32 Cal.4th at pp. 1068-1069;
People v. Lee
(2003)
Second, Palmer argues that under our interpretation of the statute, he lacked fair notice of what conduct was covered by section 12022.53, subdivision (d), in violation of his due process rights. “ ‘Due process requires fair notice of what conduct is prohibited. A statute must be definite enough to provide a standard of conduct for its citizens and guidance for the police to avoid arbitrary and discriminatory enforcement. [Citations.]’ ”
(People v. Tapia, supra,
The prosecutor urged during argument, “the court read to you about causation, if it would not have happened but for the defendant shooting at the officer, then he caused it. Okay. . . . HO ... HD What about Officer Burks, here. He’s being shot at. [f] Is it foreseeable that a man would try and get out of the way? HO Of course it is. [f] But, more importantly, did it happen because of being shot at? [ft] Of course it did. [ft] When he raised that gun and shot at him, Officer Burks had a very fraction of a second to react, [ft] But he broke his own leg. All right. He broke his own leg. [ft] The question you have is would that have happened if the defendant had not been shooting at him?”
See footnote, ante, page 1141.