People v. Stevenson CA3 ( 2021 )

Filed 9/20/21 P. v. Stevenson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sutter)
----
THE PEOPLE, C089872
Plaintiff and Respondent, (Super. Ct. No. CRF16-0002045)
v.
STEVEN STRONG BEAR STEVENSON,
Defendant and Appellant.
Defendant Steven Strong Bear Stevenson, driving with a blood-alcohol content of
0.15 percent, crashed into two parked cars and attempted, along with his passenger
Antonio Moreno, to walk away from the scene. When a police officer, Charanpreet
Singh of the Yuba City Police Department, arrived and attempted to stop them, defendant
assaulted him, ultimately slamming the officer’s head into the pavement multiple times.
1
A jury found defendant guilty of attempted murder of a peace officer (Pen. Code,
§§ 187, 664, subd. (e), count 1);1 assault on a peace officer (§ 245, subd. (c), count 2);
resisting an officer (§ 69, count 3); participation in a criminal street gang (§ 186.22,
subd. (a), count 4); driving under the influence of alcohol (Veh. Code, § 23152, subd. (a),
count 5); driving with a blood-alcohol content of 0.15 percent (Veh. Code, §§ 23152,
subd. (b), 23578, count 6); and driving a vehicle resulting in an accident with damage to
property (Veh. Code, § 20002, subd. (a), count 7). On counts 1, 2, and 3, the jury found
that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)) and
committed the offenses to assist in criminal conduct by gang members (§ 186.22,
subd. (b)(1)(C), (5)), but that the murder attempt was not premeditated. Defendant was
sentenced to 3 years plus 15 years to life for attempted murder. Sentences on the
remaining counts and enhancements were stayed or imposed concurrently.
On appeal, defendant contends (1) the trial court erred in not dismissing the jury
venire after certain jurors expressed concerns about serving in a case involving members
of a criminal street gang; (2) the court should not have admitted Moreno’s statement
threatening a police officer and declaring that he was a “Norteño” gang member made
when Moreno was handcuffed in the back of a police car being transported to the police
station; (3) defense counsel was ineffective in not requesting a jury instruction on
voluntary intoxication; and (4) there was insufficient evidence to support the jury verdict
on attempted murder.
We will affirm the judgment.
STATEMENT OF FACTS
On August 21, 2016, about 12:20 in the morning, Curtis Castner was outside his
house talking on the phone to a friend after taking out the trash. He heard a sound like an
1 All undesignated statutory references are to the Penal Code.
2
explosion, saw smoke and glass flying everywhere, and a car “doing doughnuts” in front
of his driveway. A car came to a stop in his driveway and the car that hit it went around
it, stopped, turned left across the street, and came to a stop after hitting his neighbors’
Mustang in their driveway.
Around the same time, Dashonda Medina was sitting on a bench in front of her
house when she heard a loud crash. She walked out in front of her house and saw a big
plume of smoke and a car that had hit a parked car.
Castner saw an individual get out of the front passenger’s seat of the car that hit
the Mustang. He was big; his head was shaved. He walked around to the driver’s side,
opened the door, pulled an individual out, and held him in a kind of a bear hug. This
person was a lot smaller, skinnier, and had long hair. At trial, Castner identified the man
in the driver’s seat as defendant. The larger man started walking away with defendant,
holding him up until he could walk under this own power. Castner yelled at them that
they had destroyed his neighbor’s car. The big man with the shaved head looked at
Castner but they kept walking.
Medina saw a person get out of the passenger seat and help a person get out of the
driver’s seat. They were a “little stumbly” as they crossed the street and started walking
her way. Medina yelled for her family to call for help.
On August 21, 2016, at 12:20 a.m., Singh, in uniform and driving a marked patrol
car, was responding to a radio call about a bar fight when he saw a car accident, made a
U-turn, parked, and went to make sure everyone was okay. It looked like one car had
rear-ended another car. There was no one inside the vehicles. Singh saw Castner and
asked if he was okay. Castner responded that he wasn’t in the wreck, pointed at two
individuals across the street, and said they caused the wreck.
Singh told dispatch he was at the site of vehicle collision and walked across the
street. Medina was in the middle of the street. She yelled at Singh to get his attention
and told him that the two men walking towards her house were involved in the wreck.
3
Singh shined his flashlight on the two men, identified himself as Yuba City police
officer, and told them to stop. They kept walking. When he was 5 to 10 feet away, Singh
said it louder. The larger man was about six feet five inches tall and 270 pounds; the
smaller was about five feet seven inches, 130 to 140 pounds, and had a ponytail. At trial,
Singh identified defendant as the smaller man.
The men stopped; defendant turned and faced Singh. Singh asked defendant if
they were driving the vehicle in the collision and defendant said no, that they were just
out for a walk. Singh could smell alcohol on defendant’s breath. Singh said he was
trying to figure out what happened and if they were okay. He asked the men to sit down
on the curb. Singh continued to smell alcohol on defendant’s breath as defendant said
they were fine and nothing happened. They kept walking and Singh followed, continuing
to ask them to stop and sit down on the curb.
The bigger man, who Singh later learned was Moreno, turned around, took a
fighting stance with clenched fists, and said, “Let’s go, mother-fucker. I’m from Melton
Drive.” Moreno was much bigger than Singh, who was six feet, 185 pounds at the time.
Singh was familiar with Melton Drive as a known gang area. The predominant gang in
the area was the Norteños.
Singh believed that Moreno was going to attack him. Singh called for emergency
backup, turned off his flashlight, and took out his baton, which was about 16 inches long.
Singh told Moreno to get on the ground, but he did not. Moreno took a step forward and
Singh struck him in the lower legs with the baton, three to five times. The baton strikes
appeared to have no effect on Moreno. The next thing Singh remembered was waking up
face down on the ground with his baton gone.
Medina saw Singh turn off his flashlight, take out his baton, and hit one of the men
in the leg. Both men rushed Singh and caused him to fall to the ground. Medina ran into
her garage to get a flashlight but couldn’t find one. When she came out, one of the men
was hitting Singh and one had pulled the officer to the ground. Singh hit his head.
4
Medina went into her yard and screamed for her family to call the police because Singh
was down. Medina’s son heard her scream and called 911.
Castner heard a female voice yelling. He saw a scuffle taking place. The two men
from the wreck were attacking Singh. All three were throwing punches. It was dark and
Castner could not really see over to where they were. He kept hearing the lady
screaming.
Castner ran over, and, as he got closer, got a clear picture of what was going on.
The bigger man was crawling to the sidewalk. Castner saw defendant crouched down by
Singh slamming his head into the pavement. Defendant had his hands on either side of
Singh’s head. Castner could hear Singh’s head hitting the concrete. The sound of
someone’s head hitting a hard flat surface is a distinct and scary sound that Castner had
heard before. Castner saw defendant slam Singh’s head into the concrete four times.
Each time Castner heard the distinctive sound. Each time defendant lifted Singh’s head
about a foot before slamming it into the concrete. Singh was not defending himself; his
arms were lying flat on the pavement. He did not appear to be conscious. Castner
thought that Singh was being seriously hurt.
Medina also saw one of the men hitting Singh’s head on the ground. One man
was on top of Singh and one was by him. Medina saw Singh’s head hitting the ground
three times. The person doing it was holding Singh’s head by the sides. Medina could
not tell who was hitting Singh’s head on the ground.
Medina went in the garage to try to find a bat to help Singh. She ran back out and
was going to kick the man in the head who was on top of Singh. Singh said no and told
Medina to call for help. He was not defending himself; his arms were out to the side. At
that point, Singh’s head was not being hit on the ground. One of the men was hitting
Singh with his hands but not hitting his head on the ground.
Castner thought defendant was going to kill Singh. Castner lowered his shoulder,
ran full speed, hit defendant, and knocked him off Singh. Castner fell down, attempted to
5
get back, and was on his knees when defendant started punching him. Singh was lying
on the ground, not moving. Castner exchanged punches with defendant. After Castner
stood up and fell back down, defendant crouched over him and threw four or five
punches at Castner’s head. Castner kicked defendant off of him and defendant backed
up.
When Singh woke up, he heard a female screaming. He saw defendant standing
over Castner, punching and kicking him. Singh got off the ground, ran towards
defendant, and tackled him to the ground to stop him from attacking Castner. Defendant
was squirming on the ground, resisting Singh who was on top of him. Singh got
defendant’s left hand cuffed and his right hand cuffed with the help of another police
officer. Singh found his baton lying next to defendant.
After that, Singh remembered being in an ambulance and then in the hospital. The
back of his head was hurting. He had a hematoma on the back of his head and a doctor
told him he had a concussion. Singh was diagnosed with a concussion, postconcussive
syndrome, and mild traumatic brain injury. Since this incident, Singh has difficulty
concentrating and experienced nausea, dizziness, mood swings, and headaches. He was
off work for three months. Singh tried to come back after a month but was sent back to
the emergency room because he had headaches and could not concentrate.
Castner saw the bigger man sitting on the curb trying to stand up. Castner put his
hand on the man’s shoulder and told him to stay put, he was already in enough trouble.
A police officer transported Moreno to the holding facility at the police
department. On the way, Moreno made a statement to the effect, “Just wait until I get
these cuffs off, Nigger, I’m going to kill you or fuck you up.” Moreno also said that he
was a Norteño and that he would kill the officer.
Jonathan Knapp, testifying as an expert on the effects of alcohol on the human
body, stated that he had observed individuals with blood-alcohol content of 0.15 percent
or higher interacting with police officers, who knew they were talking to a police officer.
6
Yuba City Police Detective Michael Bullard testified as an expert on the Norteño
criminal street gang. Based on various criteria—including defendant’s prior admission to
a police officer that he was a member of a set of the Norteño gang—Bullard opined that
defendant was an active participant in the Norteño criminal street gang. Based on similar
criteria, Bullard opined that Moreno was an active participant in the Norteño gang.
Bullard also testified that one of the “14 Bonds,” the rules and codes of the
Norteños, is that if a gang member showed cowardice towards, or was disrespected by,
law enforcement officers, that member could be subject to violence and removed from
the gang. The specific crimes alleged against defendant--assault on and attempted
murder of a police officer--were in line with this bond. Bullard further testified that a
Norteño gang member is expected to come to the aid another gang member involved in a
fight and not doing so would be considered an act of cowardice.
The parties stipulated that on August 21, 2016, defendant drove a vehicle under
the influence of alcohol, his blood-alcohol content was 0.15 percent, he struck two cars
causing significant damage, and he knew he had been involved in accident but failed to
provide his information to the owners or notify the police department.
DISCUSSION
I.
Motion to Dismiss the Jury Venire
Defendant contends the trial court “abused its discretion and infringed his
constitutional right to a fair and impartial jury by denying his motion to dismiss the jury
panel.” We disagree.
In voir dire, defense counsel asked, “Any of you been affected by gang violence,
gang activity, seeing gang-related events happen in the community . . . .” Prospective
Juror G. responded that a restaurant property she owned had been “tagged” with graffiti.
She did not know if it was gang-related because she could not read it. Prospective Juror
C. said that his wife and he had moved to Yuba City from Pinole to get away from gang
7
issues in the neighborhood, which did not affect them directly, but they would be
awakened in the middle of the night by police searching for people. Later asked by the
prosecutor about any hesitation in finding defendant guilty if proved beyond a reasonable
doubt, C. said he did not want to have to move again “because I was on a jury that found
somebody else guilty and the gangs came after me.” He expressed concern that gang
members would know his name and repeated that he did not want to have to move from
Yuba City because of a gang situation. C. said he might find defendant not guilty
because of these concerns. G. said she shared this feeling, as did Prospective Juror S. but
added that she could put this feeling aside. Prospective Juror No. 598246 said it “crossed
my mind as well.” Prospective Juror L. said that whether defendant was “some high
level person” in a gang would be a factor.
The parties stipulated to excuse C. and G. for cause.
Defense counsel argued C.’s attitudes “seemed to kind of domino through the
panel,” such that prospective jurors who had no personal experience with gang activity
exhibited “a preformed bias” tainting the panel, and therefore defendant could not be
fairly tried by the panel. The prosecutor argued the panel was not tainted because the
concerns raised were limited to C. and G.
The trial court granted the defense’s challenge to L. for cause. The court,
however, did not find that the entire panel was tainted by C.’s comments. The court
observed that “it is normal behavior for certain potential jurors to be concerned about
personal safety in a case such as this,” but did not find that the “majority of the jurors
who voiced those opinions” about the gang allegations were prejudging the case. The
court concluded the proper course of action was to remove the prospective jurors who
expressed hesitancy, which was done by removing C., G., and L.
At the court’s suggestion, defense counsel requested, and the prosecution agreed
to, a curative instruction on reasonable doubt and the presumption of innocence, which
8
the court read to the jury, having read the same instruction the previous day. The defense
then exercised a peremptory challenge to S.
The standard of review applicable on this issue is abuse of discretion. (People v.
Medina (1990) 51 Cal.3d 870, 889 (Medina); People v. Martinez (1991) 228 Cal.App.3d
1456, 1466 (Martinez) [“Just as a finder of fact is in a better position than the reviewing
court to judge the credibility of a witness, the trial judge is in a better position to gauge
the level of bias and prejudice created by juror comments.”].)
In Medina, the California Supreme Court emphasized that dismissing the venire is
a drastic measure reserved for extreme cases. “Defendant cites no case, and we have
found none, indicating that such a drastic remedy is appropriate as a matter of course
merely because a few prospective jurors have made inflammatory remarks.
Unquestionably, further investigation and more probing voir dire examination may be
called for in such situations, but discharging the entire venire is a remedy that should be
reserved for the most serious occasions of demonstrated bias or prejudice, where
interrogation and removal of the offending venirepersons would be insufficient protection
for the defendant.” (Medina, supra, 51 Cal.3d at p. 889.)
Case law confirms that trial courts faced with more inflammatory comments from
prospective jurors than those here did not err in refusing to discharge the venire. (See,
e.g., Medina, supra, 51 Cal.3d at p. 888 [prospective jurors reported others in the venire
stating defendant’s “ ‘own lawyers think he’s guilty’ ” and “authorities should ‘bring the
guilty S.O.B. in, we’ll give him a trial, and then hang him’ ”]; People v. Cleveland (2004)
32 Cal.4th 704, 735-736 [retired law enforcement officer commented that death penalty
was used too seldom due to legal obstacles and he could not be fair to defendant because
of his knowledge how trials are conducted]; Martinez, supra, 228 Cal.App.3d at
pp. 1472-1473 [prospective jurors stated that defendant must be guilty because he was
arrested and on trial, so the prosecution must have a strong case]; see also People v.
9
Nguyen (1994) 23 Cal.App.4th 32, 40-41 (Nguyen) [prospective juror expressed fear of
retaliation because defendant and he were members of the Vietnamese community].)
Defendant relies on Mach v. Stewart (9th Cir. 1998) 137 F.3d 630 (Mach). In
Mach, the defendant was charged with oral copulation of an eight-year-old girl. (Id. at
p. 631) During voir dire, the trial judge elicited from a prospective juror, a social worker
with state child protective services, that she had a “certain amount of expertise” in child
abuse. (Id. at pp. 632-633.) The juror had worked as a social worker for three years. (Id.
at p. 633.) The juror stated four times that she had never been involved in a case where a
child had accused an adult of sexual abuse and the child’s statements were not borne out.
(Ibid.) The court excused the juror but denied a defense request for a mistrial based on a
tainted jury panel. (Id. at p. 632.)
The Ninth Circuit found the defendant’s right to an impartial jury had been
violated. Given the prospective juror’s “expert-like” statements, “the certainty with
which they were delivered, the years of experience that led to them, and the number of
times that they were repeated, we presume that at least one juror was tainted and entered
into jury deliberations with the conviction that children simply never lie about being
sexually abused. This bias violated [the defendant’s] right to an impartial jury.” (Mach,
supra, 137 F.3d at p. 633, fn. omitted.)
Here, C. made no “expert-like” statements but rather admitted he had no personal
experience with gang members or gang-related incidents. His comments about moving
away from a neighborhood beset by gang issues reflects what the Legislature found in
promulgating the criminal street gang statute, that California “is in a state of crisis which
has been caused by violent street gangs whose members threaten, terrorize, and commit a
multitude of crimes against the peaceful citizens of their neighborhoods.” (§ 186.21.)
The comments of C. and other prospective jurors suggesting that fear of gang
retaliation might affect their impartiality are in the same vein as the juror’s statements in
Nguyen where the court held the trial judge did not abuse its discretion in excusing the
10
juror for cause but not dismissing the venire, the same result that occurred here. (Nguyen,
supra, 23 Cal.App.4th at pp. 40-41.)
We conclude that the trial court did not abuse its discretion in rejecting
defendant’s request to dismiss the venire.
II.
Moreno’s Statement While Being Transported
Defendant contends that the trial court erred in admitting Moreno’s postarrest
statement threatening Police Officer Michael Gwinnup and declaring Moreno’s gang
status, which defendant asserts “was not relevant or, if relevant, was more prejudicial
than probative, resulting in a denial of appellant’s fair trial due process rights.”
Prior to Gwinnup testifying, defense counsel objected to testimony about
statements Moreno made to Gwinnup in the police car as more prejudicial than probative.
The prosecutor argued the evidence was probative to prove the gang charge under section
186.22, subdivision (a), and gang enhancements under section 186.22, subdivision (b)(1).
Defense counsel countered that “[t]his remark is made after all this occurs when they’re
separated.”
The court ruled that the evidence was highly probative to the section 186.22 gang
allegations and would be admitted. The court observed that “[e]ven though the statement
comes after the incident, it is immediately following the incident during the
transportation of . . . Moreno to custody.”
We review the trial court’s rulings on the admissibility of evidence for abuse of
discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.) “A trial court’s exercise of
discretion in admitting or excluding evidence . . . will not be disturbed except on a
showing the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice.” (People v.
Rodriguez (1999) 20 Cal.4th 1, 9-10.) A miscarriage of justice occurs only when it is
11
reasonably probable a defendant would have achieved a more favorable result in the
absence of the error. (People v. Breverman (1998) 19 Cal.4th 142, 149.)
Relevant evidence is any evidence that has a tendency in reason to prove any
disputed fact of consequence to the determination of the action. (Evid. Code, § 210.)
Moreno’s status as a gang member was critical to the prosecution’s proof regarding both
the gang participation charge under section 186.22, subdivision (a), in count 4 and the
gang enhancements under section 186.22, subdivision (b), in counts 1 through 3.2
Section 186.22, subdivision (a), “requires that felonious criminal conduct be committed
by at least two gang members, one of whom can include the defendant if he is a gang
member.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1132.) The commission of a
felony by at least two gang members is an element of the offense. (Id. at p. 1132.)
Moreno’s statement was similarly relevant to the enhancement under section 186.22,
subdivision (b). “A trier of fact can rationally infer a crime was committed ‘in
association’ with a criminal street gang within the meaning of section 186.22, subdivision
(b) if the defendant committed the offense in concert with gang members.” (People v.
Leon (2016) 243 Cal.App.4th 1003, 1021; see also People v. Garcia (2016) 244
2 Section 186.22 provides is relevant part:
“(a) Any person who actively participates in any criminal street gang with
knowledge that its members engage in, or have engaged in, a pattern of criminal gang
activity, and who willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang, shall be punished by imprisonment in a county jail for
a period not to exceed one year, or by imprisonment in the state prison for 16 months, or
two or three years.
“(b)(1) . . . any person who is convicted of a felony committed for the benefit of,
at the direction of, or in association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang members, shall, upon
conviction of that 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 . . . .”
12
Cal.App.4th 1349, 1367 [“Committing a crime in concert with known gang members can
be substantial evidence that the crime was committed in ‘association’ with a gang”].)
Defendant argues the Moreno’s statement as he was transported to the police
station was not relevant because it “occurred after the incident was over and followed
Moreno’s arrest. As a result, it was too attenuated for admission.” Defendant does not
cite any case law to support this contention and we are aware of none. (See People v.
Ferraez (2003) 112 Cal.App.4th 925, 929, 931 [defendant’s statement regarding gang
membership one month before arrest and at the time of arrest relevant to § 186.22,
subd. (a) charge].)
Defendant further contends that Moreno’s statement was not necessary to establish
the elements of section 186.22 because of Moreno’s “self-admitted gang membership”
(i.e., “I’m from Melton Drive”) and expert testimony that Moreno was a gang member,
who had committed the instant offenses with defendant, a gang member, in an area
known for gang activity. However, “evidence does not become irrelevant simply because
other evidence may establish the same point.” (People v. Smithey (1999) 20 Cal.4th 936,
973-974.)
Defendant makes essentially the same argument citing the trial court’s discretion
to exclude cumulative evidence under Evidence Code section 352. However,
“ ‘[e]vidence that is identical in subject matter to other evidence should not be excluded
as “cumulative” when it has greater evidentiary weight or probative value.’ [Citation.]”
(People v. McKinnon (2011) 52 Cal.4th 610, 669.) Here, evidence that Moreno expressly
stated he was a Norteño after arrest is more directly probative of whether defendant
committed the charged offenses with another gang member than Moreno’s statement that
he was from an area described by Singh as a “known gang area.” As Bullard testified,
the top criterion for law enforcement to validate someone as a gang member “is where
someone admits their gang membership or association to that gang when they are arrested
and placed in county jail,” which Bullard referred to as “classification admit.” Bullard
13
described this as a “stand-alone criteria where it by itself is enough . . . to consider them a
gang member,” because no one would admit to being a gang member knowing he would
be housed with other gang members and would be subjected to violence if was not a
member as claimed. To be sure, Moreno was in a police car and not yet in jail, but he
was on his way there and his admission in that setting was more conclusive than his
statement to Singh.
The more salient question is whether Gwinnup’s testimony was unduly
prejudicial, the argument in fact made by defense counsel. We note that “the weighing of
probative, though possibly cumulative, evidence against its potentially prejudicial nature
is a matter entrusted to the sound discretion of the trial court.” (People v. Medina (1995)
11 Cal.4th 694, 749; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 [“The
admission of gang evidence over an Evidence Code section 352 objection will not be
disturbed on appeal unless the trial court’s decision exceeds the bounds of reason”].)
Defendant argues that “the vice in the admission of Moreno’s post-arrest statement
-- and consequently, its undue prejudice and misleading tendency -- is that it allowed
Moreno’s expression of intent to kill Singh and Moreno’s expressed intent to kill
Gwinnup to be ascribed to appellant.” The flaw in this assertion is twofold. First,
defendant did not object to Moreno’s statement to Singh. Second, the notion that the jury
would ascribe Moreno’s statement to defendant is speculative. Indeed, defense counsel
elicited testimony from Gwinnup on cross-examination indicating that Moreno’s
statement was just the belligerence of a very intoxicated person. Gwinnup testified that
Moreno had a “strong odor of alcohol coming from his person” and in his opinion
Moreno “was not” able to care for himself. Speculative assertions are not sufficient to
carry defendant’s burden to show prejudice. (People v. Ngaue (1991) 229 Cal.App.3d
1115, 1127.)
Moreover, as discussed below, there was other evidence of defendant’s intent to
kill. Two witnesses--Castner and Medina--testified to observing defendant hitting
14
Singh’s head on the ground multiple times. Therefore, defendant cannot show that he
would have received a more favorable result in the absence of the evidence of Moreno’s
postarrest statement. (People v. Avitia (2005) 127 Cal.App.4th 185, 194 [“The erroneous
admission of gang or other evidence requires reversal only if it is reasonably probable
that appellant would have obtained a more favorable result had the evidence been
excluded.”].)
III.
Ineffective Assistance of Counsel
Defendant “contends his trial counsel was prejudicially ineffective for failing to
request a jury instruction on voluntary intoxication.” He argues there was substantial
evidence supporting voluntary intoxication, including his driving erratically, striking a
parked car on the street and another in a driveway, having to be helped out of the car to
walk away, the alcohol odor Singh noticed, and his blood-alcohol content of 0.15 percent.
We conclude that defendant did not receive ineffective assistance of counsel.
“[E]vidence of voluntary intoxication [is] relevant on the issue of whether the
defendant actually formed any required specific intent.” (People v. Pensinger (1991) 52
Cal.3d 1210, 1243.) In an attempted murder case, voluntary intoxication may be relevant
on the issue of intent to kill. (§ 29.4.) However, in People v. Soto (2018) 4 Cal.5th 968,
the California Supreme Court held that the jury may “consider evidence of voluntary
intoxication on the question of whether defendant intended to kill but not on the question
of whether he believed he needed to act in self-defense,” (id. at p. 970) overruling the
Court of Appeal which concluded that voluntary intoxication could be considered on a
claim of imperfect self-defense.3 (Id. at p. 973.)
3 Defendant acknowledges the impact of Soto but argues that defense counsel in
closing argument regarding self-defense told the jury “to carefully think about appellant’s
15
The trial court instructed the jury that imperfect self-defense or defense of another
would reduce the attempted murder charge to attempted manslaughter and perfect self-
defense would require the jury to find defendant not guilty of any crime. The difference
between perfect and imperfect self-defense depended on whether defendant’s belief in the
need to use deadly force was reasonable. In evaluating defendant’s beliefs, the burden
was on the prosecution to prove beyond a reasonable doubt that defendant was not acting
in imperfect self-defense, and if this burden was not met, the jury was required to find
defendant not guilty of attempted murder. The court also instructed the jury that self-
defense was also a defense to the assault claims. But “[v]oluntary intoxication is not a
defense to assault.” Defendant does not dispute that these instructions were properly
given and correct statements of the law.
In closing, defense counsel argued for both perfect and imperfect self-defense, and
told the jury that, if either applied defendant did not intend to kill. On perfect self-
defense, counsel argued that if Singh “just started batoning . . . Moreno from behind,”
this was perfect self-defense. If the jury believed “it’s slightly more likely true that the
officer is right, . . . Moreno still gets batoned and you might get to imperfect self-defense.
But it still doesn’t make [defendant] guilty of intent to kill under any circumstances or
any reading of the facts.” Counsel emphasized that “to get past self-defense . . . you got
to reject the idea that . . . Moreno was not the aggressor. That the officer was. And then
once you get past that you got to say what the officer did was reasonable in batoning . . .
state of mind in light of the evidence of intoxication,” therefore counsel’s argument “did
not render the voluntary intoxication instruction inconsistent with his defense.” To the
extent that defense counsel acknowledged that voluntary intoxication constituted an
alternative defense theory to self-defense, counsel’s strategic decision to rely on one
exculpatory theory does not amount to ineffective assistance merely because other
theories are possible. “[C]ounsel does render ineffective assistance by choosing one or
several theories of defense over another.” (People v. Cunningham (2001) 25 Cal.4th 926,
1007; People v. Thomas (1992) 2 Cal.4th 489, 531-532.)
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Moreno even though he had just mouthed off and hadn’t done anything yet. That’s all
the stuff you got to get behind and get past to get past possibly perfect self-defense.”
As to the assault claims, defense counsel argued “[y]ou have to find all the
elements there to be true and then find there was no self-defense.”
“ ‘[A] defendant claiming a violation of the federal constitutional right to effective
assistance of counsel must satisfy a two-pronged showing: that counsel’s performance
was deficient, and that the defendant was prejudiced, that is, there is a reasonable
probability the outcome would have been different were it not for the deficient
performance.’ [Citations.]” (People v. Woodruff (2018) 5 Cal.5th 697, 736; see also
Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674]; People v. Ledesma
(1987) 43 Cal.3d 171, 216-217.)
The California Supreme Court has observed: “It is particularly difficult to prevail
on an appellate claim of ineffective assistance. On direct appeal, a conviction will be
reversed for ineffective assistance only if (1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or omission, (2) counsel was asked
for a reason and failed to provide one, or (3) there simply could be no satisfactory
explanation. All other claims of ineffective assistance are more appropriately resolved in
a habeas corpus proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1009,
italics omitted.)
“In the usual case, where counsel’s trial tactics or strategic reasons for challenged
decisions do not appear on the record, we will not find ineffective assistance of counsel
on appeal unless there could be no conceivable reason for counsel’s acts or omissions.
[Citations.]” (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Here, we can conceive of a tactical reason for not requesting a voluntary
intoxication instruction. Defense counsel sought to focus the jury on the scenario of
Singh being the initial aggressor in batoning Moreno and, accordingly, defendant
engaging in reasonable--and therefore perfect--defense of Moreno, which could lead to a
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complete acquittal on the attempted murder charge. A finding of voluntary intoxication
would only reduce attempted murder to attempted manslaughter. If the jury found
defense of Moreno unreasonable--i.e., imperfect--defendant could still be found not
guilty of attempted murder. Moreover, the jury could consider perfect or imperfect self-
defense but not voluntary intoxication on the assault claims. Counsel could have
determined that requesting an instruction on voluntary intoxication would distract the
jury from focusing on the fact that Singh struck Moreno first in the encounter, the key
consideration for defendant’s self-defense claims to the attempted murder and assault
charges.
We conclude that defense counsel did not render ineffective assistance of counsel
in failing to request an instruction on voluntary intoxication.
IV.
Sufficiency of Evidence of Intent to Kill
Defendant contends “there was no evidence of intent to kill sufficient to support
the verdict of attempted murder.” This claim has no merit.
“When reviewing a challenge to the sufficiency of the evidence, we ask
‘ “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” ’ [Citations.] Because the sufficiency of the evidence is ultimately a
legal question, we must examine the record independently for ‘ “substantial evidence—
that is, evidence which is reasonable, credible, and of solid value” ’ that would support a
finding beyond a reasonable doubt. [Citation.]” (People v. Banks (2015) 61 Cal.4th 788,
804.)
To support an attempted murder conviction requires sufficient evidence of
defendant’s specific intent to kill and commission of a direct but ineffectual act to
accomplish the killing. (People v. Houston (2012) 54 Cal.4th 1186, 1217.) Attempted
murder involves express malice--either the defendant desires the victim’s death or knows
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to a substantial certainty that death will occur. (Ibid.) Direct evidence of the defendant’s
mental state is rare. (People v. Smith (2005) 37 Cal.4th 733, 741.) Intent is usually
derived from defendant’s actions and the circumstances of the crime. (Ibid.) Intent to
kill may be inferred from the fact that defendant attacks a vulnerable area of the body.
(People v. Moore (2002) 96 Cal.App.4th 1105, 1114.)
Defendant argues that the evidence was insufficient to support an intent to kill,
because while “impacting a head against a sidewalk or cement surface can have fatal
consequences,” his “actions fell short of causing any skull fracture,” which suggested that
defendant “did not use force consistent with an intent to kill.” Not so. The human head
is a vulnerable area of the body. Castner saw defendant “slamming . . . Singh’s head into
the pavement” four times. Each time Castner could hear a distinctive and “scary” sound
as Singh’s head hit the concrete. Defendant was using force and effort to slam Singh’s
head into the concrete. Defendant lifted Singh’s head up a foot before slamming it in the
concrete. Singh was unconscious and not defending himself.
The fact that Singh did not suffer a fractured skull is immaterial to whether
defendant’s actions evidenced an intent to kill. (People v. Avila (2009) 46 Cal.4th 680,
702 [“[T]he degree of the resulting injury is not dispositive of defendant’s intent. Indeed,
a defendant may properly be convicted of attempted murder when no injury results.”].)
In any case, Singh did suffer a serious injury. Singh had a hematoma on the back of his
head and a concussion. He could not work for three months because of, among other
things, difficulty concentrating, nausea, dizziness, and headaches. He tried to come back
after a month but ended up in the emergency room because of headaches and inability to
concentrate.
We conclude that defendant’s attempted murder conviction was supported by
substantial evidence.
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DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
MURRAY, J.
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