People v. Bostick

Opinion

SMITH, J.

Timothy Neal Bostick was convicted by a jury of voluntary manslaughter, with a special finding that he discharged a firearm from a motor vehicle causing another’s death, within the meaning of Penal Code section 12022.55 (all further unspecified statutory references are to the Penal Code). Sentenced to a total term of 11 years in prison, Bostick seeks reversal on the grounds that the trial court prejudicially erred in excluding testimony regarding the victim’s use of cocaine and that the jury should have been instructed that the gun enhancement statute contains an implied “drive-by” element. We disagree on both counts and affirm the judgment.

Background

In 1987, Dena Wright (Dena) began a relationship with the victim in this case, Eric Riggins, when she was 14 years old. She moved in with Riggins and gave birth to a son, Jaray, in 1988. During their relationship there were incidents where Dena was subject to severe physical abuse by Riggins, some of which were reported to the police. Riggins would slap her and hit her. He broke her wrist when she was three months pregnant; when she was eight months pregnant he struck her, causing her to fall and hit her head on a nightstand. On another occasion, he threw her against a wall so hard she smashed a hole in it. On a third occasion, in a jealous fit over some flowers a client had sent her, Riggins threw Dena out of a moving car, grabbed her up by the hair and subjected her to more physical abuse for another hour.

The abuse stopped once Dena broke up with Riggins in January 1991. She met Bostick in January 1993 and they developed a romantic relationship. Dena told Bostick about the incidents of abuse at the hands of Riggins.

A week before the shooting, Dena had forgotten to pick up Jaray from child care because she was ill. Riggins showed up at her house and was furious. He demanded to speak to her, followed her out of the car, grabbed her face and slammed it against the car window. Dena told Bostick about the incident.

On December 4, 1993, Riggins walked into Dena’s place of work, angry because she had lied to him about Jaray’s whereabouts. After a brief discussion, Riggins grabbed her purse and her pager and walked out. Dena told Bostick what happened and asked him to get her purse back. She also told him that she had called the police. Bostick said that was a good idea, telling her that he “should have checked him [Riggins] last week when he put his hands on your face.”

Around 10:30 or 11 a.m. three men working on a truck on 10th Street across from Riggins’s mother’s house saw a Dodge Stealth, driven by Bostick, pull up in front of the house. Bostick remained in his car. Riggins waved to Bostick and walked up to the driver’s side. The men saw Riggins leaning over the car, speaking with Bostick. Riggins did not look angry and he did not have a bulge anywhere in his pockets. There was no yelling, threats or scuffling.

After about five to ten minutes, a shot rang out. Riggins grabbed his shoulder and fell to the ground, yelling, “I’ve been shot.” Bostick drove away, smiling. Later, he told Dena that he had “popped” Riggins. He gave the gun to a friend and told him to dispose of it. No weapons were found on Riggins or in the vicinity.

Bostick testified about his relationship with Dena in which she told him about Riggins’s quick temper and the upsetting incidents of past abuse. Riggins and Bostick had two confrontations prior to the shooting and they had threatened each other several times. Bostick commented that Riggins needed to “get his ass kicked.” Riggins once suggested that if Bostick interfered in a dispute with Dena over his son, Bostick would get “blasted.” Bostick was very upset after Riggins assaulted Dena, about a week before the incident. He feared Riggins and decided to get a gun for his protection.

The day of the shooting, Dena called Bostick that morning very upset, “hysterical basically.” She told him Riggins had taken her purse and asked him to get it back. Bostick left his job and drove to Riggins’s house. He assumed Riggins was in “some messed up mental state.” Riggins walked over to Botstick’s car, which was parked on a public street abutting a vacant lot, and began conversing with him. Bostick sensed a little “animosity” in Riggins’s voice. Bostick was nervous and wondered who the men across the street were. He took out his gun and kept it nearby. Bostick asked Riggins for Dena’s purse. Riggins wanted to know where his son was and refused to give him anything until he saw his son. The conversation between them “started to boil” and Bostick felt himself becoming upset and afraid. Riggins was wearing baggy clothes and making motions toward the back of his pants, leading Bostick to believe he might be checking a weapon of some kind. Bostick pulled out the gun and fired. He shot Riggins because the argument was escalating, Riggins was looking uneasy and uncomfortable, and he was “[d]oing different motions with his arms and hands and stuff like that.”

Appeal

I^*

Exclusion of Cocaine Intoxication Evidence

II

Section 12022.55 Enhancement

The jury made a special finding that Bostick discharged a firearm from a motor vehicle, resulting in the death or great bodily injury of the victim, within the meaning of section 12022.55.⁴ Citing an “urgency clause” in the legislation which states that the Legislature intends to make “the shooting of motorists” a serious crime, Bostick contends that this section “requires a finding that the shooting occurred from a vehicle which was involved in an actual drive-by on a public street or highway,” and the jury should have been so instructed.

The contention, made without any supporting case authority, must be rejected. Section 12022.55 is plain on its face that all that is required is that death or great bodily injury be inflicted “as a result of discharging a firearm from a motor vehicle.” The term “drive-by” does not appear anywhere and Bostick cites no language remotely suggesting the vehicle must be in motion for the enhancement to apply. It is a cardinal rule that where a statute is facially clear and unambiguous, no judicial interpretation is necessary. (People v. Bunyard (1988) 45 Cal.3d 1189, 1238 [249 Cal.Rptr. 71, 756 P.2d 795]; People v. Smith (1987) 188 Cal.App.3d 1495, 1516-1518 [234 Cal.Rptr. 142], overruled on other grounds in People v. Davis (1994) 7 Cal.4th 797, 805 [30 Cal.Rptr.2d 50, 872 P.2d 591].)

The argument would fail even if we independently construed the Legislature’s intent. We have no doubt that the gang-type drive-by shooting was one of the primary concerns in enacting section 12022.55. (see, e.g., People v. Alvarez (1992) 9 Cal.App.4th 121, 128 [11 Cal.Rptr.2d 463]), but there are other plausible purposes for the enhancement. The urgency clause cited by Bostick refers not only to the shooting of motorists, but “deter[ring] persons from violent actions upon our public streets and highways . . . .” (Stats. 1987, ch. 1147, § 5, p. 4060, italics added.) Street safety is therefore another independent legislative goal of the statute.

Furthermore, firing a gun from a motor vehicle is an especially treacherous and cowardly crime. It allows the perpetrator to take the victim by surprise and make a quick escape to avoid apprehension, as illustrated by the facts here. The Legislature could rationally have determined that the foregoing considerations justify imposing an increased sentence on the perpetrator.

Unlike our concurring colleague, we find no “overinclusiveness” in the statute. (Conc. opn., post, at p. 297.) While “drive-by” shootings certainly grab the headlines and may well have provided the impetus for passing section 12022.55, the use of a motor vehicle as a staging ground for shootings which cause death or great bodily injury, whether the vehicle happens to be in motion or stationary, on a public street or private property, is a greater evil which the Legislature could and did attempt to deter through the clear language of the statute.

Based upon the plain meaning of the statute, we reject appellant’s theory of section 12022.55.

Disposition

The judgment is affirmed.

Phelan, J.,^* concurred.

* See footnote, ante, page 287.

4 Section 12022.55 provides: “Notwithstanding Section 12022.5, any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, as defined in Section 12022.7, or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony, shall, upon conviction of the felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for 5, 6, or 10 years.”

* Presiding Justice of the Court of Appeal, First District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.