People v. Karjala CA3

Filed 9/21/21 P. v. Karjala 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Trinity)
----
THE PEOPLE, C090487
Plaintiff and Respondent, (Super. Ct. No. 13F099)
v.
SEAN ERIN KARJALA,
Defendant and Appellant.
After a traffic stop, defendant Sean Erin Karjala chased a law enforcement officer
with a hatchet before being shot several times. Defendant was found guilty of attempted
murder of a peace officer, among other charges, and the trial court sentenced him to an
indeterminate term of 30 years to life and a determinate term of six years, in addition to
imposing various fines and fees.
On appeal, defendant argues: (1) the attempted murder conviction must be
reversed because the trial court’s finding that defendant had the intent to kill the officer
rests on insufficient evidence, (2) the matter must be remanded for a hearing on
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defendant’s ability to pay the fines and fees ordered by the court under People v. Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas), and (3) the abstract of judgment incorrectly
reflects the sentence imposed. We agree only with defendant’s third contention and shall
order that errors on the abstract of judgment be corrected.
BACKGROUND
Defendant was charged with attempted murder of a peace officer (Pen. Code,
§ 217.1, subd. (b)),1 resisting an executive officer (§ 69), and assault with a deadly
weapon upon a peace officer (§ 245, subd. (c)), with the enhancement as to the first two
counts that he used a deadly and dangerous weapon during their commission (§ 12022,
subd. (b)(1)). It also was alleged that he had suffered a prior serious felony conviction
(§ 667, subds. (a)(1), (b)-(i)).
At a court trial, Tehama County Sheriff’s Captain David Kain testified regarding a
prior arrest of defendant on April 4, 2013. Defendant was driving a van and, when
Captain Kain turned on his siren, defendant drove evasively, eventually skidding to a stop
and fleeing on foot. Captain Kain grabbed defendant’s shirt as he was climbing a fence,
at which point defendant tried to struggle free and hit Captain Kain’s arm “in an effort to
get [Captain Kain] to break [his] grip.” After being pulled back over the fence, it took
several officers to handcuff defendant as he struggled to get free.
Officer Chad Barnes testified to executing a traffic stop of defendant at dusk on
April 27, 2013, for speeding. Defendant initially drove through a mobile home park
“exceeding a safe speed” before he pulled into a motel parking lot. Officer Barnes
approached defendant and asked, among other things, whether he had any weapons in the
car; defendant said, “No.” After smelling alcohol and cannabis, Officer Barnes decided
1 Undesignated statutory references are to the Penal Code.
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to conduct an investigation for driving under the influence and asked defendant to step
out of his car.
Officer Barnes said defendant started to open his door but then stopped and stared
straight ahead. Officer Barnes gave another command and defendant reached behind the
passenger seat and grabbed a hatchet. Defendant then quickly got out of the car and
started running towards Officer Barnes, who was on the other side of the car, with the
hatchet raised above him. Officer Barnes testified he was “[i]n fear for [his] life.”
Officer Barnes backed away from defendant, who continued to approach with the
hatchet raised while “yelling and screaming.” Officer Barnes fired nine shots, some
hitting defendant, who fell to the ground and dropped the hatchet several feet away.
Defendant had gotten approximately 10 to 15 feet from Officer Barnes, but he never
swung the hatchet. Officer Barnes said that while he radioed for backup after shooting
defendant, defendant got up and ran at him; Officer Barnes was able to kick defendant in
the chest and defendant fell again. Officer Barnes testified that defendant then said,
“Why didn’t you kill me, mother fucker?”
The dashcam video from Officer Barnes’s patrol car was entered into evidence.
The video shows Officer Barnes speaking to defendant from the passenger side of the car
for a couple of minutes. Officer Barnes then backs away from the car and defendant is
seen running around the back of the car holding the hatchet and then turns left towards
Officer Barnes on the passenger side. Officer Barnes moves around the front of the car
and then backs away rapidly from the car while defendant is chasing him around the
vehicle. The camera records Officer Barnes firing the first few shots as defendant is
coming around the front of the car, and then Officer Barnes and defendant move out of
the frame while defendant is yelling and holding the hatchet. Off camera Officer Barnes
is heard telling defendant to stay down multiple times and defendant yelling in response,
“No.” Defendant can also be heard asking why Officer Barnes did not kill him.
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Kenna Sylva, who was at the motel that day, testified she saw defendant pull what
looked like a hatchet out of his car and then “charged after” Officer Barnes. She
described defendant as “crouched down . . . like he was trying to sneak up on” or
“ambush” Officer Barnes in order to “kill him.” Sylva also saw Officer Barnes backing
away but defendant “kept going towards him, faster.” She grabbed her children and ran
inside before seeing the shots fired because she “was very scared that [defendant] was
going to kill the officer, look up, see [them] there as witnesses, and come up and kill
[them] as well.” After a few minutes she looked out again and saw Officer Barnes trying
to help defendant, who was yelling, “Why didn’t you just kill me?”
Defendant testified in his defense that he had been depressed and suicidal after he
had been arrested earlier in the month. He was “overwhelmed by fear,” “hopelessness
and just paranoia that the police would be coming for [him] at any minute.” He also had
written suicide notes.
Defendant conceded his initial instinct was to flee from Officer Barnes, but then
“knew there was no fleeing,” so he “decided to slow down and deal with whatever
came.” When Officer Barnes asked him to get out of the car, he thought he was going to
be taken into custody. He got the hatchet and chased Officer Barnes because he wanted
Officer Barnes to take his life. Defendant said he raised the hatchet over his head
because he knew Officer Barnes “wasn’t going to shoot [him] unless he was afraid.”
Defendant denied ever intending to harm or kill Officer Barnes, defendant just wanted to
die. When he got back up after being shot, defendant said he yelled, “[F]inish me,” and,
“[K]ill me.” He admitted he took the hatchet out of its sheath before chasing Officer
Barnes. He stated that he had a good paying job and had recently purchased a laptop and
cell phones, which were found in the car.
The court found defendant guilty on all counts and found all allegations true. In
discussing the evidence for defendant’s intent to kill Officer Barnes, the trial court found
“defendant was not fully forthcoming” when he testified, and found “him to not be
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credible on the key issues in this case,” specifically, he was “the only one who said he
intended to kill himself.” Thus, the trial court found beyond a reasonable doubt
defendant “intended to kill this police officer and render him incapable of arresting him
. . . , which is consistent with his history with law enforcement.”
On July 26, 2019, the trial court sentenced defendant to an indeterminate term of
15 years to life for attempted murder of a peace officer, doubled to 30 years for a prior
strike, and determinate terms of one year for the deadly weapon enhancement and five
years for the prior serious felony. The court also imposed a $10,000 restitution fine
(§ 1202.4, subd. (b)), a $10,000 stayed parole revocation restitution fine (§ 1202.45),
three $30 criminal conviction assessments (Gov. Code, § 70373), and three $40 court
operations assessments (§ 1465.8).
DISCUSSION
I
Substantial Evidence
Defendant first argues that his conviction for attempted murder of a peace officer
lacks substantial evidence because there was no evidence defendant had the specific
intent to kill Officer Barnes. Defendant contends the only theory supported by the
evidence is that he wanted to provoke Officer Barnes into shooting and killing him,
known as “suicide by cop.” We disagree.
In reviewing the sufficiency of the evidence, “ ‘we review the whole record in the
light most favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ”
(People v. Cravens (2012) 53 Cal.4th 500, 507.) “We must presume in support of the
judgment the existence of every fact that the trier of fact could reasonably deduce from
the evidence. [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 919.) We also may
not reweigh the evidence and are bound by the trial court’s credibility determinations.
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(Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1026.) “The conviction shall stand ‘unless
it appears “that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].” ’ [Citation.]” (Cravens, supra, at p. 508.) The standard is the
same in cases in which a conviction is based primarily on circumstantial evidence.
(People v. Clark (2016) 63 Cal.4th 522, 625.)
Section 217.1, subdivision (b) criminalizes the attempted murder of certain public
officials, including peace officers. “Attempted murder requires the specific intent to kill
and the commission of a direct but ineffectual act toward accomplishing the intended
killing. [Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 623.) The evidence must
show express malice, i.e., a deliberate intention to kill a human being unlawfully. (§ 188;
People v. Bland (2002) 28 Cal.4th 313, 327-328.) “ ‘There is rarely direct evidence of a
defendant’s intent. Such intent usually must be derived from all the circumstances of the
attempt, including the defendant’s actions.’ [Citation.]” (People v. Smith (2005) 37
Cal.4th 733, 741.) This includes motive evidence, which “is often probative of intent to
kill.” (Ibid.) It is “impossible to be certain that a person will not lose his resolve to
commit the crime until he completes the last act . . . . But the law of attempts would be
largely without function if it could not be invoked until the trigger was pulled, the blow
struck, or the money seized.” (People v. Dillon (1983) 34 Cal.3d 441, 455.)
There is substantial evidence that defendant intended to kill Officer Barnes.
Defendant removed the protective sheath from the hatchet, a dangerous weapon,
crouched as to conceal his attack, and then charged Officer Barnes while raising the
hatchet and yelling. As Officer Barnes tried to back away, defendant sped up, chased
Officer Barnes around the car, and did not stop until he was shot several times. Officer
Barnes said he feared for his life and the only other percipient witness had the impression
defendant was trying to ambush and kill Officer Barnes. The witness was so convinced
of this she hid with her children so that defendant would not try to then kill them.
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There also is supporting motive evidence. Just a few weeks prior, defendant hit
Captain Kain while attempting to evade capture by scaling a fence. Though defendant
significantly intensified his efforts to escape from Officer Barnes later that month, his
prior efforts to resist arrest indicate a similar motive here. And, as the trial court found,
the only unequivocal evidence supporting defendant’s motive theory of “suicide by cop”
was defendant’s own testimony, which the trial court did not find reliable. Defendant’s
interrogative statement to Officer Barnes asking why he did not kill him is at best
ambiguous. This statement could be interpreted as him being in so much pain from being
shot multiple times that he wished Officer Barnes would have just killed him.
Regardless, even if defendant’s contention is accepted, this does not mean he did not also
intend to kill Officer Barnes. Defendant could have thought either he had to kill Officer
Barnes to get out of being arrested or he would die trying, as he was “overwhelmed by
fear” of being arrested again.
Finally, that defendant did not strike Officer Barnes, and may not even have
swung at him, does not change the conviction’s validity. An attempt crime is by
definition an incomplete crime. Defendant did have to still swing the hatchet and hit
Officer Barnes with a blow significant enough to kill him. But defendant was not given
the opportunity to do so because of Officer Barnes’s quick retreat, the 10 to 15 feet of
distance he was able to maintain from defendant, and his eventual shooting. We cannot
say for sure what would have happened if Officer Barnes had not reacted so quickly, but
conclusively resolving that question is not required to uphold an attempt conviction.
Wielding a dangerous weapon while chasing Officer Barnes is enough evidence
defendant was taking a direct but ineffectual step towards killing him. (Cf. People v.
Nelson (2011) 51 Cal.4th 198, 212 [“Simply pointing his gun at [the victim] under these
circumstances is sufficient to support a finding of attempted murder”]; People v. Dillon,
supra, 34 Cal.3d at p. 455 [“the law of attempts would be largely without function if it
could not be invoked until the trigger was pulled, the blow struck, or the money seized”].)
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Our review is limited. The court’s assessment of the credibility of the witnesses is
determinative, and we must affirm its judgment if there is credible evidence of solid
value. That is the case here. The trial court watched the video, listened to the percipient
witnesses, and did not believe defendant. There is substantial circumstantial evidence to
support the trial court’s conclusion that when defendant chased Officer Barnes with a
hatchet raised while yelling and speeding up, he specifically intended to kill him. We
therefore will affirm the trial court’s judgment.
II
Fines and Fees
Defendant challenges the court’s imposition of two $10,000 restitution fines
(§§ 1202.4, subd. (b), 1202.45), three $30 criminal conviction assessments (Gov. Code,
§ 70373), and three $40 court operations assessments (§ 1465.8), citing Dueñas, supra,
30 Cal.App.5th 1157, requesting remand for an ability to pay determination. Defendant
contends that he suffered from ineffective assistance of counsel if he forfeited this
argument. Without reaching the merits, we agree with the People that defendant forfeited
this challenge and defendant has not established a claim for ineffective assistance of
counsel.
Defendant was sentenced on July 26, 2019, over six months after issuance of the
Dueñas decision. (Dueñas, supra, 30 Cal.App.5th 1157 [decided Jan. 8, 2019].)
Therefore, his failure to raise Dueñas at sentencing forfeits this argument by operation of
normal rules of appellate review. (People v. Scott (1994) 9 Cal.4th 331, 351-354 [to
preserve a sentencing issue for review, it must be raised in the trial court].)
Further, defendant was ordered to pay the maximum restitution fine of $10,000,
which is above the statutory minimum of $300 (§ 1202.4, subd. (b)(1)). Thus,
defendant’s ability to pay was already at issue by virtue of section 1202.4, subdivisions
(c) and (d), and defendant bore the burden of demonstrating an inability to pay (§ 1202.4,
subd. (d)). His failure to object and demonstrate an inability to pay further operates to
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forfeit this argument. (See, e.g., People v. Nelson, supra, 51 Cal.4th at p. 227
[defendant’s claim that the court erroneously failed to consider ability to pay a $10,000
restitution fine is forfeited by the failure to object]; People v. Gamache (2010) 48 Cal.4th
347, 409 [challenge to $10,000 restitution fine forfeited by failure to object to alleged
inadequate consideration of defendant’s ability to pay]; People v. Avila (2009) 46 Cal.4th
680, 729 [rejecting the argument that defendant was exempted from forfeiture because
his restitution fine amounted to an unauthorized sentence based upon his inability to pay];
see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [defendant’s failure to
challenge a restitution fine was a classic example of circumstance appropriate for
forfeiture rule].)
That defendant’s ability to pay claims are constitutional in character does not alter
the application of the forfeiture doctrine. (See People v. Trujillo (2015) 60 Cal.4th 850,
859 [constitutional exception to the forfeiture rule related to prophylactic advisements
concerning significant rights did not apply to a claim concerning failure to obtain express
waiver of an ability to pay hearing]; In re Sheena K. (2007) 40 Cal.4th 875, 880-881
[noting longstanding rule that a constitutional right may be forfeited in criminal
proceedings by “ ‘ “failure to make timely assertion of the right before a tribunal having
jurisdiction to determine it” ’ ”].)
To establish ineffective assistance of counsel, “the defendant must first show
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the defendant must show
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different.” (People v. Mai
(2013) 57 Cal.4th 986, 1009.) On direct appeal, a judgment 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.
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All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.” (Ibid.)
Defendant points to nothing in the record relating to why defense counsel failed to
object to the imposition of the fines, fees, and assessment, and the record does not
affirmatively disclose that counsel had no tactical purpose for doing so. Perhaps counsel
had a reason to conclude defendant could pay the fines and fees. This would be
supported by the evidence defendant had a good paying job and recently bought cell
phones and a laptop. Defendant’s prejudice analysis, moreover, does not show a
reasonable probability that the outcome would have been different had his counsel
objected. Defendant argues that at sentencing he “had been unemployed and in custody
for approximately six years by the time he was sentenced.” But he does not claim he did
not have sufficient resources before being arrested, which, again, would be contradicted
by the evidence at trial. This does not meet defendant’s burden of showing resulting
prejudice.
III
Abstract of Judgment
Finally, defendant asks us to correct the abstract of judgment, alleging it
erroneously states the sentence imposed. The People agree.
At sentencing, the court imposed an indeterminate term of 30 years to life based
on 15 years to life for the attempted murder, doubled for the prior strike, and a
determinate term of six years based on one year for the deadly weapon enhancement and
five years for the prior serious felony. However, the indeterminate portion of the abstract
of judgment lists a 15-year term for a section 667, subdivision (e)(1) enhancement in
addition to the 30-year-to-life term for the attempted murder conviction. Also, all of the
terms, including the attempted murder charge, are listed on the determinate portion of the
abstract, the weapons enhancement is listed as six years, the serious felony enhancement
is not listed at all, and an enhancement for “667(b)” is listed as 15 years. These errors
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should be corrected. (See People v. Zackery (2007) 147 Cal.App.4th 380, 385 [oral
pronouncement controls].)
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment which
reflects the court’s oral pronouncement of judgment by amending the indeterminate
portion of the abstract of judgment to list only a 30-year-to-life term for the attempted
murder conviction, and eliminate the section 667, subdivision (e)(1) enhancement, and
amending the determinate abstract of judgment by removing the attempted murder
conviction, reducing the deadly weapon enhancement to one year, adding the prior
serious felony enhancement for five years, and eliminating the section 667, subdivision
(b) enhancement. In all other respects the judgment is affirmed.
KRAUSE , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
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