People v. Faniel CA4/1 ( 2023 )

Filed 5/3/23 P. v. Faniel CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080803
Plaintiff and Respondent,
v. (Super. Ct. No. FSB19002836)
DEVION RAYNARD FANIEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Michael A. Smith, Judge. Affirmed with directions.
Theresa Osterman Stevenson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for
Plaintiff and Respondent.
Devion Raynard Faniel appeals from the final judgment entered after a
jury found him guilty of attempted murder, assault with a firearm, and
possession of a firearm by a felon stemming from his involvement in a 2019
shooting. Faniel contends that reversal is warranted for three reasons:
(1) the trial court prejudicially erred by allowing law enforcement witnesses
to narrate surveillance video, identify Faniel as the shooter, and opine that
Faniel was guilty; (2) there was insufficient evidence to prove the specific
intent to kill required for Faniel’s conviction for attempted murder; and
(3) there was insufficient evidence to prove that Faniel did not act in defense
of himself or another as required for his conviction for assault with a firearm.
We find no prejudicial error and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Evidence at Trial
In July 2019, Darnell B. and his cousin, Marquiz G., were “hanging
out” in the parking lot of a liquor store when multiple cars pulled up to them.
Several people, including Reginald Jenkins, got out of the cars, and a woman
walked over and confronted Darnell. According to Marquiz, the woman was
Jenkins’s daughter, who had accused Darnell of hitting her. One person in
Jenkins’s group had a pipe or bat, another had a golf club, and Jenkins had a
kitchen knife with a 12-inch blade.
Darnell attempted to walk away from the impending fight but was
chased by several members of Jenkins’s group. Someone in the group
punched Darnell, and after he fell to the ground, Jenkins stabbed him
multiple times. Marquiz attempted to help Darnell and pull him away, but
Jenkins stabbed Marquiz too.
After Marquiz was stabbed, he retrieved a gun he had previously
hidden in a trash can just outside of the liquor store. Marquiz started
shooting, and he testified that his “only focus” at that point was Jenkins
because Jenkins was the person who had stabbed him. He did not point his
gun or shoot at Faniel. When interviewed by law enforcement officers a few
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weeks after the incident, Marquiz estimated that he had fired approximately
10 rounds at Jenkins.
Marquiz was shooting at Jenkins when another person from Jenkins’s
group—later identified by Marquiz and law enforcement officers as Faniel—
fired at least one shot at Marquiz. The shot did not hit him. After Faniel
fired his gun at Marquiz, he took off running across the parking lot towards
the street.
While Marquiz had been retrieving his gun from the trash can, Darnell
was able to get away from Jenkins and to the other side of the liquor store
parking lot. Darnell crouched behind an SUV, but the vehicle began backing
up, so he went around to the front of the SUV to avoid being hit. He then ran
down the sidewalk next to the parking lot because he heard gun shots. As he
was running away, he was shot in the upper leg/buttocks. The shot left him
with a wound to his buttocks and a bullet fragment lodged in his pelvic bone.
During the investigation of the incident that followed, law enforcement
officers obtained and reviewed three videos taken from surveillance cameras
at the liquor store that captured the incident. Officers also used a license
plate reader to track one of the vehicles that had been in the liquor store
parking lot the night of the shooting. This led officers to an apartment
complex, where they found both Jenkins and Faniel. One of the officers
recognized Faniel from the surveillance videos and noticed that he was
wearing what appeared to be the same shorts that the shooter was wearing
in the video. Officers also found Faniel’s identification inside of one of the
vehicles that had been at the parking lot during the shooting.
Law enforcement officers interviewed Marquiz and questioned him
about the incident. One officer placed Faniel’s photograph in a lineup, and
Marquiz identified Faniel as the shooter. Marquiz identified Jenkins (also
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known as “Reddy”) as the person who stabbed Darnell and Marquiz. Marquiz
testified at trial that he did not want to identify anyone in the courtroom,
stating that he did not want to make any additional statements beyond what
he had already provided. He confirmed, however, that the person in the
lineup photograph he had previously initialed (Faniel) was the same person
who shot at him and Darnell. Darnell declined to identify anyone involved,
telling officers that he did not want to prosecute.
At trial, the prosecution played the surveillance videos for the jury and
asked several witnesses, including some law enforcement officers, to describe
what they saw in the videos. Officer Manuel Valenzuela testified as to what
he believed was depicted in the various video clips as they were played for the
jury, pointing out muzzle flashes from the guns being shot and describing
what he believed was happening from each angle and who was shooting.
Officer Andrew Saibene testified that in his review of the surveillance videos
after seeing Faniel in person, he recognized Faniel in the videos. He also
identified Faniel in a series of screenshots taken from the surveillance videos.
Sergeant Jonathan Plummer testified that he recognized Faniel as the person
shooting at Darnell in the surveillance videos. Defense counsel repeatedly
objected to the identification testimony and some of the opinion testimony,
but the trial court overruled most objections.
Faniel did not testify or present an affirmative case. In closing, defense
counsel argued that the prosecution had failed to prove beyond a reasonable
doubt that Faniel was the shooter or that he acted with specific intent to kill
and with premeditation and deliberation.
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B. Conviction and Post-Trial Motions
The jury found Faniel guilty of attempted murder (Pen. Code,1 §§ 664
and 187, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), and
possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury also found
true the personal infliction of great bodily injury and firearm enhancements
as to the attempted murder and assault convictions, including that Faniel
personally inflicted great bodily injury (§ 12022.7, subd. (a)), personally
discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)),
personally and intentionally discharged a firearm (§ 12022.53, subd. (c)),
personally used a firearm (§§ 12022.53, subd. (b), 1203.06, subd. (a)(1),
12022.5, subd (a)), and used or possessed a firearm for offensive or defensive
use and intended to cause great bodily injury (§§ 1170.12, subd. (c)(2)(C)(iii),
667, subd. (e)(2)(C)(iii)). It further found true the allegation that the
attempted murder was willful, premeditated, and deliberate.
Faniel admitted that he was previously convicted of first-degree
residential burglary and kidnapping, which the information had alleged
qualified as “strikes” (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)) as well as
prior serious felonies (§ 667, subd. (a)(1)).
The trial court denied Faniel’s request to strike his two prior
convictions for first-degree residential burglary and kidnapping under the
three strikes law, but it granted his request that those convictions be stricken
for purposes of the five-year prior serious felony enhancement under section
667, subdivision (a)(1). The court also struck the jury’s finding that the
attempted murder was willful, deliberate, and premeditated based on the
court’s conclusion that the evidence was insufficient to support the finding. It
1 Undesignated statutory references are to the Penal Code.
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further granted Faniel’s motion to strike the firearm enhancements as to
each count pursuant to section 1385.
C. Sentencing
The court sentenced Faniel to a total indeterminate term of 25 years to
life plus three years. It imposed 25 years to life for the attempted murder
conviction, plus an additional three years for the great bodily injury
enhancement. The court also imposed 25 years to life (plus an additional
three years) for the assault conviction, but it stayed that term under section
654. Finally, the court imposed a concurrent four-year term for the
possession of a firearm by a felon conviction.
DISCUSSION
I
Faniel contends that the trial court erred by allowing several law
enforcement officers to testify as to their opinions of what was depicted in the
surveillance videos. Specifically, he argues that (1) the court should not have
permitted the officers to identify Faniel as the shooter in the videos; (2) the
court should not have allowed the officers to narrate the videos to the jury;
and (3) Sergeant Plummer improperly testified as to Faniel’s guilt and the
crimes committed. Faniel argues that the admission of the officers’
identification testimony, the officers’ narration of the surveillance videos, and
Sergeant Plummer’s statement of the crimes committed was prejudicial and
thus warrants reversal.
A. Identification by Law Enforcement Witnesses
Faniel first contends that the law enforcement officers’ testimony
identifying him as the shooter in the surveillance videos was erroneously
admitted because it is improper opinion testimony. The People respond that
a person’s identity is a proper subject of nonexpert opinion at trial and the
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lay opinion testimony identifying Faniel in the videos here was properly
admitted. The People are correct.
A lay witness may offer opinion testimony if it is “rationally based on
the perception of the witness” and helpful to a clear understanding of the
witness’s testimony. (Evid. Code, § 800.) We review a trial court’s decision to
admit or exclude evidence, including lay opinion identification testimony, for
abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128; People v.
Leon (2015) 61 Cal.4th 569, 600 (Leon).)
In Leon, the Supreme Court considered an appeal by a defendant who
had objected to a detective’s identification of him at trial as the person in a
surveillance video of a robbery, arguing that it was inadmissible lay opinion.
(Leon, supra, 61 Cal.4th at p. 600.) The detective “testified that he was ‘very’
familiar with the defendant’s appearance” based on his arrest of the
defendant and the fact that he saw him nearly 10 times after the arrest,
spending approximately two hours with him total. (Ibid.) The detective also
opined that the jacket the defendant was wearing when he was arrested
appeared to be the same jacket worn by the suspect in the surveillance
videos. (Id. at pp. 600–601.)
The Supreme Court held that a person’s identity is the proper subject of
lay witness opinion testimony and found that the detective’s identification
testimony was properly admitted in that instance. (Leon, supra, 61 Cal.4th
at p. 601.) The Court noted that “Court of Appeal decisions have long upheld
admission of testimony identifying defendants in surveillance footage or
photographs.” (Ibid.) Although the defendant in Leon attempted to
distinguish those decisions on the ground that the detective had no contact
with him before the crimes at issue, the Court found that to be “a distinction
without a difference,” because it was undisputed that the detective “was
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familiar with defendant’s appearance around the time of the crimes.” (Ibid.)
The Court found that any “[q]uestions about the extent of [the detective’s]
familiarity with defendant’s appearance went to the weight, not the
admissibility, of his testimony.” (Ibid.)
We find Leon to be directly on point here. Just as the detective in Leon
identified the defendant in a surveillance video based on his interactions with
the defendant after but “around the time of the crimes,” Officer Saibene and
Sergeant Plummer identified Faniel as the suspect in the surveillance videos
based on their interactions with him around the time of the shooting. (Leon,
supra, 61 Cal.4th at p. 601.)
Officer Saibene testified that he encountered Faniel a few weeks after
the shooting during his investigation into one of the vehicles present at the
crime scene. Officer Saibene was at an apartment complex when he saw
Jenkins and Faniel, recognizing Faniel because “he matched one of the
suspects in the video surveillance.” The officer testified that Faniel “was one
of the subjects shooting” in the videos. At the apartment complex, Officer
Saibene walked by and came within two feet of Faniel and looked at his facial
features. Officer Saibene opined that Faniel “matched the description” of the
suspect in the surveillance videos and that he “was also wearing the same
basketball shorts [when arrested] that he was wearing during the shooting.”
He also identified Faniel in a series of screenshots from the surveillance
videos, noting again that he “matched the description” and describing
Faniel’s physical features that stood out to him as similar to those in the
surveillance footage, including that Faniel was “dark-skin complected,” had
“kind of scruffy” facial hair, and had a “small afro-ish” hairstyle.
Sergeant Plummer testified that he recognized Faniel in the
surveillance videos based on his interview of Faniel the day he was arrested.
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The two sat “within one to two feet” of each other during the interview, which
lasted “between 30 and 40 minutes” and allowed Sergeant Plummer “to
observe [Faniel] from head to toe the entire time.” Sergeant Plummer also
testified that the shorts Faniel was wearing during his interview “matched
the same shorts that the defendant was using or wearing at the time of the
shooting.” Based on watching the videos and observing Faniel’s facial
features and clothing, Sergeant Plummer was “100 percent sure” that Faniel
was the shooter depicted in the videos.
Faniel attempts to distinguish his case from Leon by arguing that the
officers who identified him at trial did not see him in person and determine
he was one of the shooters from the surveillance videos until around three
weeks after the shooting, while the identifying officer in Leon arrested the
defendant only one day after one of the crimes that was caught on video. (See
Leon, supra, 61 Cal.4th at pp. 600–601.) But the Supreme Court has
concluded that testimony identifying defendants in surveillance footage or
photographs is admissible so long as the witness is “familiar with defendant’s
appearance around the time of the crimes.” (Id. at p. 601, italics added.) We
find that, under these circumstances, the officers’ interactions with Faniel
three weeks after the crime satisfy this requirement.
Moreover, the Court held in Leon that the extent of a person’s
“familiarity with the defendant’s appearance [goes] to the weight, not the
admissibility, of his testimony,” explaining that it was the jury’s duty to
weigh the credibility of the officers’ testimony. (Leon, supra, 61 Cal.4th at
p. 601.) The trial court here properly instructed the jurors on lay witness
opinion testimony, telling them that they were “not required to accept those
opinions as correct” and could “give those opinions whatever weight you think
is appropriate.” And here, as in Leon, the surveillance video was played for
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the jurors, who could evaluate for themselves whether Faniel was the
shooter. (Leon, at p. 601.)
Faniel also argues that whereas the defendant in Leon had changed his
appearance after his arrest, the officers here testified that Faniel’s
appearance at trial was similar to when they first observed him, and their
identification of Faniel was therefore not helpful to the jury. We again
disagree. First, Faniel’s characterization of the testimony is not quite
accurate. Officer Saibene testified that Faniel’s appearance was slightly
different than it had been around the time of the crime, stating that Faniel
was “a little bit more clean-cut” and his hair and facial hair were “not the
same.” Sergeant Plummer also testified that Faniel looked a little different
at trial, noting that his hair was neater and he looked “dapper.” Second, even
assuming Faniel’s appearance had not changed much (or at all) since the
time the officers first observed him, we do not find that to be dispositive. The
trial court here reasonably concluded that the officers’ testimony identifying
Faniel was based on their “relevant personal knowledge and aided the jury.”
(Leon, supra, 61 Cal.4th at p. 601.) We therefore find no abuse of discretion.
B. Narration of Surveillance Videos by Law Enforcement Witnesses
Faniel next contends that the trial court erred in allowing Officer
Valenzuela, Officer Saibene, and Sergeant Plummer to describe the contents
of the surveillance videos and still shots, arguing that their narration
constituted improper opinion testimony.2 The People argue that much of the
2 Anticipating a forfeiture argument, Faniel argues at the outset that, to
the extent his defense counsel failed to clearly articulate objections to the
officers’ narration and opinion testimony at trial, he received ineffective
assistance of counsel. The People respond that defense counsel did in fact fail
to object to improper lay opinion testimony and to Sergeant Plummer’s
testimony as to the crimes committed. We do not decide whether Faniel
preserved his claims of error but instead “elect to address the objections on
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testimony Faniel challenges does not constitute lay opinion testimony, and
that even if it did, it was largely helpful to the jury and thus admissible. We
agree with the People.
The court in People v. Son recently considered a similar challenge to a
detective’s testimony about what she observed from watching surveillance
video of a stabbing. (Son, supra, 56 Cal.App.5th at p. 696.) The detective
testified that she had viewed the video more than 50 times, explaining that
when she first watched it, she did not notice a shiny object she referred to as
“a stabbing instrument” fly out of defendant’s right hand, but that she was
able to perceive those events after repeated viewings. (Id. at p. 695.)
Rejecting the defendant’s claim that the detective’s commentary was
improper lay opinion, the court stated: “[W]e fail to see any opinions
expressed in [the detective’s] testimony. She essentially just testified to what
she saw. . . . If she had witnessed the actual murder and given the exact
same testimony, we certainly would not characterize it as opinion testimony.
It would be percipient testimony. Why does it become an opinion just
because she saw it in a video?” (Id. at p. 697.) The court then assumed for
the sake of argument that the testimony was opinion, but it still found the
testimony admissible because it was rationally based on the detective’s
perception and helpful to the jury, as it enabled the jury “to speed up the
process of teasing out obscure details in the video.” (Ibid.)
their merits rather than address the ineffective assistance of counsel claim.”
(People v. Son (2020) 56 Cal.App.5th 689, 696, fn. 1 (Son); see also People v.
Gonzalez (2021) 12 Cal.5th 367, 411 [assuming without deciding that
defendant preserved his claim and rejecting the argument on its merits].) In
any event, we would reach the same result analyzing Faniel’s claim of
ineffective assistance of counsel in violation of his Sixth Amendment rights
under Strickland v. Washington (1984) 466 U.S. 668.
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The same is true here. The three officers whose testimony Faniel
challenges as improper lay opinion merely testified to what they saw in the
surveillance videos. Even assuming for the sake of argument that the
officers’ testimony was opinion, as the Son court did, we find that it was both
rationally based on the officers’ perception and helpful to the jury.
Officer Valenzuela, for example, identified for the jury what he believed
to be muzzle flashes shown in the videos as the two shooters fired their guns,
and he explained the concept of a muzzle flash, which the jury may not have
been familiar with. He pointed out that there was a second muzzle flash
coming from the gun fired by the person later identified as Faniel,
demonstrating that Faniel fired two shots rather than one. This was helpful
because the second muzzle flash was difficult to discern from the video, and
the jury may not have been able to perceive it or appreciate its import
without the officer’s testimony. (People v. Phillips (2022) 75 Cal.App.5th 643,
685 [finding that the sergeant’s testimony narrating surveillance video aided
both the jury and the court by pointing out where and when bloodstains
appeared on the footage].)
We also find it relevant that the video clips shown to the jury consisted
of three different surveillance videos taken from different angles, as well as
modified versions of two of the videos, which may have been confusing for the
jury. Officer Valenzuela described the crime scene from each angle,
explaining that the person seen shooting from a particular angle in one video
was the same person seen running towards the street and shooting in
another video. Similarly, Officer Saibene and Sergeant Plummer testified as
to what they believed was happening in various still shots taken from the
surveillance video, describing muzzle flashes and movements of Faniel and
others present at the crime scene. Like the testimony in Son, this
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commentary likely aided the jury in “discerning the exact events that
transpired,” which was otherwise “difficult because ‘there[ was] so much
going on [and] . . . so much movement.’ ” (Son, supra, 56 Cal.App.5th at
p. 695.)
Faniel argues that the officers were in no better position than the jury
to evaluate the video evidence, because the video was of good quality. Even
assuming that were true, lay opinion testimony can be helpful to a jury even
where the jury might be able to make the same determinations without the
aid of the testimony. “[T]he standard is not whether the testimony was
essential,” but whether it is “helpful.” (Son, supra, 56 Cal.App.5th at p. 697.)
Here, the officers’ testimony aided the jury in understanding the video
evidence, and the trial court therefore did not err in allowing the testimony.
C. Sergeant Plummer’s Testimony as to Faniel’s Guilt
Faniel contends that Sergeant Plummer’s testimony opining that the
surveillance videos showed that an assault with a deadly weapon and an
attempted murder had occurred was an improper opinion on the law and thus
inadmissible.3 The People do not dispute this but argue that the testimony
did not prejudice Faniel. We again agree with the People.
Faniel is correct that witnesses are not permitted to express an opinion
as to a defendant’s guilt or whether a crime has even been committed.
(People v. Torres (1995) 33 Cal.App.4th 37, 46–48 (Torres) [finding it was
3 Faniel also briefly argues that Officer Saibene’s statements identifying
Faniel as the shooter amounted to improper opinion testimony as to his guilt.
We are not persuaded. Officer Saibene did not make any statement as to
whether Faniel was guilty of the crimes charged. Rather, he merely opined
that Faniel was one of the shooters in the videos, which does not compel the
conclusion that he was guilty of attempted murder or the other charges.
Officer Saibene did not testify, for example, that Faniel had the intent to kill
or that he did not act in self-defense.
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improper for officer to express the opinion that the alleged crimes committed
were robberies].) Here, Sergeant Plummer testified that, after watching the
surveillance videos, he “was able to determine that obviously an assault with
a deadly weapon and an attempted murder had occurred.” No one disputes
that his testimony was improper. The question now is whether the admission
of the testimony prejudiced Faniel such that it warrants reversal of his
convictions.
Improper admission of lay opinion evidence is generally a state law
error subject to the test set forth in People v. Watson (1956) 46 Cal.2d 818,
836 (Watson), which only requires reversal where “it is reasonably probable
the defendant would have obtained a more favorable verdict if the improper
evidence had not been admitted.” (People v. Shorts (2017) 9 Cal.App.5th 350,
362.) Like the defendant in Shorts, Faniel argues that his claim of error
should instead be analyzed under the federal harmless beyond a reasonable
doubt standard. (See Chapman v. California (1967) 386 U.S. 18, 24.) Faniel
argues that the Chapman standard applies here because the admission of
Sergeant Plummer’s statement, along with the identification and narration
testimony, violated his constitutional rights by usurping the jury’s role as
factfinder. But opinion testimony regarding whether a crime was committed
is inadmissible not because the testimony goes to the ultimate issue of fact to
be decided by the jury, but rather because such an opinion is “of no assistance
to the trier of fact.” (Torres, supra, 33 Cal.App.4th at p. 47; id. at pp. 48–49
[finding that although defense counsel’s failure to object to opinion testimony
as to whether a robbery was committed constituted ineffective assistance, the
error was not prejudicial because it was not reasonably probable the result of
the proceeding would have been different but for the error].) It is thus the
Watson standard that applies to Faniel’s claim of error. (People v. Coffman
14
and Marlow (2004) 34 Cal.4th 1, 76 [erroneous admission of opinion
testimony on defendant’s guilt is state-law error subject to Watson standard
of prejudice].)
We conclude it is not reasonably probable Faniel would have obtained a
more favorable result but for Sergeant Plummer’s statement. Faniel argues
that because the evidence against him consisted mainly of video surveillance,
along with Marquiz’s identification of him as the shooter, it is reasonably
probable that without the admission of the law enforcement officers’
testimony, at least one juror would have had a reasonable doubt that Faniel
was the shooter, acted with intent to kill, or did not act in defense of himself
or another. But our conclusion that the officers’ identification and narration
testimony was properly admitted significantly undercuts his claim of
prejudice. The only improper testimony at issue is Sergeant Plummer’s
single comment about the crimes committed, which was a passing line in a
trial that consisted of testimony from 12 witnesses over the course of eight
days. The remainder of Sergeant Plummer’s testimony was admissible as
helpful to the jury, and his improper comment was never mentioned again,
including in the prosecutor’s closing statement. Moreover, as we explain in
more detail below, the properly admitted evidence supports the jury’s finding
that Faniel committed assault with a firearm and attempted murder. We
therefore conclude that improper admission of Sergeant Plummer’s statement
does not warrant reversal.
II
Faniel next contends that his convictions for attempted murder and
assault with a firearm must be reversed because there was insufficient
evidence to support them. Specifically, Faniel argues that (1) the evidence
presented in support of the attempted murder charge was insufficient to
15
prove he had the specific intent to kill, and (2) there was insufficient evidence
to prove that he did not act in defense of himself or another. According to
Faniel, the jury’s verdicts on these charges therefore violated his due process
rights under the federal Constitution.
A. Standard of Review
When a defendant challenges the sufficiency of the evidence to support
a conviction, we review the whole record in the light most favorable to the
judgment to determine whether any reasonable trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. (People v.
Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio); Jackson v. Virginia (1979)
443 U.S. 307, 318–319.) We presume the existence of every fact the jury
could reasonably have deduced from the evidence in support of the judgment
and “ ‘accept logical inferences that the jury might have drawn from the
circumstantial evidence.’ ” (Zamudio, at p. 357.)
The record must, however, contain substantial evidence to support the
verdict. (Zamudio, supra, 43 Cal.4th at p. 357.) To be substantial, evidence
must be “ ‘reasonable in nature, credible, and of solid value.’ ” (People v.
Johnson (1980) 26 Cal.3d 557, 576.) We may reverse for insufficient evidence
only where “upon no hypothesis whatever is there sufficient substantial
evidence to support the jury’s verdict.” (Zamudio, at p. 357.)
B. Sufficiency of the Evidence of Faniel’s Intent to Kill
A conviction for attempted murder requires a specific intent to kill and
the commission of a direct but ineffectual act toward accomplishing the
intended killing. (§ 21a; People v. Lee (2003) 31 Cal.4th 613, 623.) Faniel
does not dispute that the prosecution presented sufficient evidence of a direct
but ineffectual act toward accomplishing the killing, but he contends that the
evidence was insufficient to prove he had the intent to kill. We disagree.
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Substantial evidence supports the jury’s conclusion that Faniel
intended to kill Darnell. Because “[t]here is rarely direct evidence of a
defendant’s intent. . . [, it] must usually be derived from all the circumstances
of the attempt, including the defendant’s actions.” (People v. Chinchilla
(1997) 52 Cal.App.4th 683, 690 (Chinchilla).) Here, defendant’s actions were
caught on video. The surveillance videos showed Faniel running across the
parking lot while firing two shots at Darnell as Darnell attempted to run
away. It appears from the videos that Faniel was no more than one or two
car lengths away from Darnell when he shot him. This act “of firing toward a
victim at a close, but not point blank, range ‘in a manner that could have
inflicted a mortal wound had the bullet been on target,’ ” is sufficient on its
own to support an inference of intent to kill. (Chinchilla, at p. 690; see also
People v. Smith (2005) 37 Cal.4th 733, 742 (Smith) [a “shooter’s purposeful
‘use of a lethal weapon with lethal force’ against the victim, if otherwise
legally unexcused, will itself give rise to an inference of intent to kill”].) The
lethal nature of the weapon Faniel used and the short distance from which he
fired it support an inference that he intended to kill.
Faniel argues that the record shows that when he shot Darnell, he
acted in the moment, in response to Marquiz’s shooting, and without intent to
kill. He claims this is the only reasonable interpretation of the evidence
based on the following facts: (1) Faniel only fired one shot at Darnell; (2) the
shot hit Darnell’s buttocks—“not a location of the body that reflects an intent
to kill,” according to Faniel; (3) Faniel ran away from the scene after he shot
Darnell rather than approaching him to shoot him again and at closer range
after he fell down; (4) Marquiz started shooting first, and Faniel was running
away from Marquiz at the time he shot Darnell; and (5) it is possible Faniel
believed Darnell had just retrieved a weapon and fired a shot in Darnell’s
17
direction to “ward off harm to himself” as he fled the scene. We are not
convinced.
The first three points Faniel offers in favor of reversal are either based
on facts that are inaccurate or arguments that have been soundly rejected by
other courts. First, the record establishes that he fired two shots, not one, in
Darnell’s direction. As Officer Valenzuela testified at trial, the surveillance
videos show two muzzle flashes coming from Faniel’s gun as he points it at
Darnell. Firing multiple shots at a victim supports a reasonable inference of
an intent to kill. (Chinchilla, supra, 52 Cal.App.4th at p. 690; see also Smith,
supra, 37 Cal.4th at p. 742.) Second, even if Faniel had fired only a single
shot before fleeing the scene, “[t]he fact that the shooter may have fired only
once and then abandoned his efforts out of necessity or fear does not compel
the conclusion that he lacked the animus to kill in the first instance.” (People
v. Lashley (1991) 1 Cal.App.4th 938, 945 (Lashley).)
Faniel’s argument that his failure to shoot Darnell again and at closer
range demonstrates lack of intent to kill also rests on the assumption that
Faniel knew he had failed to inflict a fatal wound. Nothing in the record
supports that conclusion. Nor does the fact that Faniel’s shot hit Darnell in
the buttocks rather than a more vulnerable place on the body necessarily
establish a lack of intent to kill. Darnell may have only “escaped death
because of [Faniel]’s poor marksmanship.” (Lashley, supra, 1 Cal.App.4th at
p. 945.) It was reasonable for the jury to conclude that it was Faniel’s poor
marksmanship and Darnell’s efforts to flee that prevented more serious
injury or death. Faniel’s argument to the contrary “rests on the untenable
theory that an unsuccessful killing constitutes conclusive evidence of lack of
intent,” and we therefore reject it. (Ibid.)
18
Faniel’s remaining contentions relate to his self-defense theory.
Essentially, he argues that because he did not shoot his gun until after
Marquiz started shooting, and because the scene was “chaotic” and may have
led Faniel to believe Darnell had a gun himself, the only reasonable inference
is that Faniel merely fired in Darnell’s direction to “ward off harm to himself”
as he fled from Marquiz. Although such an inference may be possible, it is
certainly not the only reasonable interpretation. And where “the
circumstances reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (People v. Albillar (2010)
51 Cal.4th 47, 60 (Albillar); see also Lashley, supra, 1 Cal.App.4th at p. 946
[“While reasonable minds may differ on the resolution of that issue, our sole
function is to determine if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”].)
Here, the circumstances reasonably justify the jury’s finding. Darnell
was unarmed and running away from Faniel when Faniel shot him. Faniel’s
speculation that Darnell could have retrieved a gun, and Faniel therefore
may have reasonably believed Darnell to be a threat to his safety, is
unsupported by the record. No evidence was presented showing that Darnell
had a weapon at any point during the incident or threatened Faniel or
anyone in his group. Rather, testimony and surveillance videos
demonstrated that it was Faniel, Jenkins, and their group who arrived at the
liquor store armed with multiple deadly weapons, instigated the fight, and
attacked Darnell. It was reasonable based on these circumstances and
Faniel’s actions for the jury to reject his claim that he was merely seeking to
avoid harm to himself when he shot Darnell.
19
Viewing the evidence in the light most favorable to the judgment, we
conclude there was sufficient evidence from which the jury could find that
Faniel harbored the intent necessary for an attempted murder conviction.
C. Sufficiency of the Evidence That Faniel Did Not Act in Self-Defense or
Defense of Another
Faniel also contends that his conviction for assault with a firearm must
be reversed because there was insufficient evidence to prove he did not act in
defense of himself or Jenkins when he shot Darnell.4 Faniel argues that no
reasonable juror could have found that the prosecution proved beyond a
reasonable doubt that Faniel did not act in lawful defense of Jenkins and
“arguably had a reasonable belief he was acting in self-defense thereafter.”
We disagree; much of the evidence supporting an inference that Faniel
intended to kill Darnell also demonstrates that Faniel did not act in lawful
self-defense or defense of Jenkins when he shot Darnell.
To justify self-defense for an assault charge under section 245, “ ‘the
defendant must have an honest and reasonable belief that bodily injury is
about to be inflicted on him.’ ” (People v. Minifie (1996) 13 Cal.4th 1055,
1064, italics in original.) “The ultimate judgment of reasonableness is solely
for the jury.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1088.) The trial
court properly instructed the jury as to this defense, stating that the jury
could not find Faniel guilty of assault with a firearm if it found he had acted
in self-defense or defense of another and explaining that this standard was
met if Faniel (1) reasonably believed that he or someone else was in
4 Faniel does not raise this issue as to the attempted murder count, even
though the trial court instructed the jury that he was not guilty of attempted
murder if he acted in self-defense or defense of another. Even if Faniel had
raised this issue as to the attempted murder, however, we would reject it
because our reasoning here applies equally to both counts.
20
imminent danger of suffering bodily injury, (2) reasonably believed that the
immediate use of force was necessary to defend against that danger, and
(3) used no more force than was reasonably necessary to defend against that
danger. The court further explained that the prosecution had the burden of
proving beyond a reasonable doubt that Faniel did not act in lawful self-
defense.
In arguing that the prosecution failed to prove he did not act in
justifiable self-defense, Faniel again claims that he “would not have
necessarily perceived” as he fled the scene that the man standing near
Darnell was not in fact Marquiz or that Darnell himself had no weapon.
Faniel also relies on the fact that he did not fire his gun until after Marquiz
began shooting at Jenkins.
The evidence presented at trial contradicts this argument and provides
substantial evidence that (a) Faniel did not honestly believe he or Jenkins
was in imminent danger, and/or (b) any such belief was not reasonable.
First, our review of the surveillance videos leads us to conclude that the jury
could reasonably find that Faniel knew the man standing near Darnell was
not Marquiz. The video shows Faniel firing at Marquiz and then almost
immediately fleeing the scene, running away from Marquiz and towards
Darnell as he shoots him. Second, Faniel shot Darnell as he was running
away from him. The shot hit Darnell in the buttocks, further demonstrating
that his back was turned to Faniel when he was shot. There is no evidence
that Darnell displayed, retrieved, or used a weapon at any point during the
incident, even after he was punched, stabbed, and shot by Faniel and his
group. The jury could reasonably conclude that Darnell was not, in fact,
armed, and that even if Faniel believed he needed to protect himself or
Jenkins from Darnell, that belief was unreasonable.
21
The jury may have also found that Faniel was not entitled to use self-
defense or act in defense of Jenkins because it was the two of them and their
group that first assaulted Darnell and Marquiz. By the time Marquiz began
shooting, Faniel’s group had already punched Darnell and stabbed both
Darnell and Marquiz. As the trial court properly instructed the jury,
someone who initiates a fight may only use self-defense if they try to stop the
fighting and indicate to their opponent that they want to stop fighting.
(CALCRIM No. 3471.) Faniel did not do so.
Although a different jury might have found that the evidence raised a
reasonable doubt as to whether Faniel was justified in shooting Darnell, that
possibility does not warrant reversal. (Albillar, supra, 51 Cal.4th at p. 60.)
Our role is “not to second guess the reasoning or wisdom of the factfinder.”
(Lashley, supra, 1 Cal.App.4th at p. 946.) The prosecution here presented the
jury with ample evidence that Faniel did not act in self-defense when he shot
Darnell. Even defense counsel did not argue self-defense to the jury; he
explicitly stated in his closing argument: “Now, there were some instructions
that were given on self-defense and defense of others that may or may not
apply. I’m not going to really argue that.” Instead, Faniel’s defense focused
on the theory that he was not the shooter. For all these reasons, we conclude
that sufficient evidence supports the jury’s determination that Faniel did not
act in self-defense or defense of another.
III
The People contend that the abstract of judgment should be amended to
correct clerical error as to the sentence imposed for count three. Although
the trial court sentenced Faniel to a concurrent four-year term for count
three, the abstract of judgment incorrectly reflects a concurrent three-year
term. Faniel does not respond to this argument in his reply brief. We agree
22
with the People that this clerical error should be corrected. (See People v.
Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a
corrected abstract of judgment reflecting that Faniel was sentenced to a
concurrent four-year term for count three. The court shall forward the
corrected abstract of judgment to the Department of Corrections and
Rehabilitation.
BUCHANAN, Acting P.J.
WE CONCUR:
KELETY, J.
CASTILLO, J.
23