Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C155057
RUVOLO, P. J.
I.
INTRODUCTION
After a jury trial, appellant Joseph Cornett was found guilty of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), attempted murder (§§ 664, 187, subd. (a)), and shooting from a motor vehicle (§ 12034, subd. (c)). Among other enhancement allegations, the jury found that appellant had personally and intentionally discharged a firearm and that he personally inflicted great bodily injury. (§§ 12022.53, subds. (b), (c), (d), 12022.7, subd. (a).) After being sentenced to 32 years to life in state prison, appellant filed this appeal, claiming his convictions must be reversed because the trial court failed to instruct the jury pursuant to CALJIC Nos. 2.60 and 2.61 that they were not to draw an adverse inference from his decision not to testify. He also urges us to reverse his conviction for attempted murder, contending the evidence was insufficient to establish that he possessed a specific intent to kill. He lastly claims his 25-year-to-life sentence on the firearm allegation (§ 12022.53, subd. (d)) constitutes cruel and unusual punishment under the state and federal Constitutions. We reject these contentions and affirm the judgment.
All undesignated statutory references are to the Penal Code.
II.
FACTS AND PROCEDURAL HISTORY
The victim, Anthony Murphy, who was 17 years old at the time of the offense, testified that in the early morning hours of October 22, 2006, he and a large group of friends were walking northbound on Broadway after coming from a club in Jack London Square in Oakland, California. Murphy noticed a burgundy Buick with several males in it also heading northbound on Broadway. Several of Murphy’s friends responded, “seventy-eight hundred,” “ten six,” and “rolling hundreds” which signified the neighborhoods in Oakland where they were from. Murphy heard someone from inside the car say, “I wet your T-shirt up, little nigger.” He interpreted that to mean, “I’ll shoot you.”
The Buick then drove down the block and made a U-turn and came back around very slowly. At this point Murphy and his friends were underneath the overpass at 6th and Broadway still walking northbound. Murphy bent down to tie his shoe and pull up his pants in case he had to run, when he heard a shot coming from the front of the car. When he was running away, Murphy discovered that he had suffered a bullet wound in his upper left thigh. His friends summoned the police, who were in the area.
Police dispatchers broadcast information regarding the incident to other officers in the area. A car matching the description of the vehicle involved in the shooting was spotted and pulled over by police within a couple of minutes of the broadcast. After all five of the car’s occupants were ordered out of the vehicle and handcuffed, officers searched the vehicle. Officers found a loaded nine-millimeter semiautomatic firearm lying on the right rear floorboard partially under the front seat and a single expended cartridge from a bullet casing on the right rear passenger seat. Subsequently, an extra magazine and a box of ammunition were found in the car.
During closing argument, defense counsel conceded that the prosecution established through expert testimony that the gun found on the rear floorboard of the car was the same one that fired the expended cartridge which was in the rear seat of the car. The firearm was analyzed for fingerprints but the fingerprints were too poor quality to be identifiable.
The vehicle was registered to appellant, and appellant was identified as the driver. Three of Murphy’s friends who were with him when he was shot testified that the driver of the car was the person with the gun. A gunshot residue test was conducted on appellant. Nine particles of gunshot residue were found on appellant’s right hand. However, the criminalist who testified conceded that this did not conclusively show that appellant had fired the gun, as the same results could be achieved if a person handled a gun that had just been fired or was “in very close proximity to a gun going off....”
Demaurie Williams, who described himself as a good friend of appellant’s, was in appellant’s car on the night Murphy was shot. He testified at trial that his head was down when the shot was fired, and he had no idea who fired the gun. However, Williams admitted that shortly after his arrest, he gave a tape recorded statement to the police in which he identified appellant as the shooter. In his statement to police, Williams recalled that after the shooting, appellant handed the gun to one of the rear passengers and said “put it under the seat.” At trial, Williams’s tape-recorded statement was played for the jury. Williams recanted his identification of appellant as the shooter, claiming it was the product of police coercion and trickery.
When he was shot, Murphy was a senior at Castlemont High School and was student body president and captain of both the baseball and football teams. He was shot in the middle of the football season Because of his injuries, he missed several important games where recruiters from Division I college teams were in attendance, which Murphy believed cost him a college scholarship. Murphy’s treating physician testified that in his opinion, Murphy had an “excellent” prognosis and was expected to make a full recovery. However, at the time of trial, Murphy testified that he was still suffering mobility problems which impeded his athletic performance.
The defense rested without presenting any witnesses. In closing argument, defense counsel highlighted specific inconsistencies in the statements given by the eyewitnesses, which he claimed rendered the identification of appellant as the shooter not credible. He claimed that because of the law of physics and the trajectory of the bullet, the shot which struck Murphy had to have been fired by someone sitting in the back seat of the vehicle.
On July 20, 2007, the jury returned its verdict, finding appellant guilty on all counts and finding true all of the alleged enhancements. On September 21, 2007, the court sentenced appellant to state prison for a total term of 32 years to life, consisting of the midterm of 7 years for attempted murder and 25 years to life for the section 12022.53, subdivision (d) enhancement. All of the other counts and enhancements were stayed pursuant to section 654. This appeal followed.
III.
DISCUSSION
A. Failure to Give CALJIC Nos. 2.60 and 2.61
Appellant first claims he is entitled to reversal for the trial court’s failure to instruct the jury pursuant to CALJIC Nos. 2.60 and 2.61 as he requested. In Carter v. Kentucky (1981) 450 U.S. 288 (Carter), the United States Supreme Court held that a trial judge, upon the defendant’s request, has a constitutional obligation to instruct the jury not to draw an adverse inference from the defendant’s failure to take the stand. (Id. at pp. 300, 305; People v. Evans (1998) 62 Cal.App.4th 186, 190 (Evans).) Consequently, if a defendant makes a request, the jury must be instructed in accordance with CALJIC Nos. 2.60 and 2.61 that a defendant’s failure to testify cannot be used to infer guilt. (Id. at pp. 190-191.) However, neither instruction is required to be given sua sponte, as a defendant might not want the court to draw attention to his or her failure to testify. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1535-1536, and cases cited therein.)
CALJIC No. 2.60 reads: “A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.” CALJIC No. 2.61 reads: “In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against [him] [her]. No lack of testimony on defendant's part will make up for a failure of proof by the People so as to support a finding against [him][her] on any essential element.”
Appellant did not testify at trial, and the record reflects his counsel requested that the jury be instructed with the language found in CALJIC Nos. 2.60 and 2.61. Although the court indicated its intent to read these instructions, apparently through inadvertence, it failed to do so. Neither counsel called this omission to the court’s attention.
Relying on Carter, supra, 450 U.S. 288, appellant argues that the failure to give the requested instructions can never be considered harmless and that “[t]he error in this case requires reversal per se.” However, appellant’s argument runs counter to Evans, supra, 62 Cal.App.4th 186, in which the court squarely addressed this issue and held that a court’s inadvertent failure to give CALJIC Nos. 2.60 and 2.61 is properly analyzed under the harmless error. (Id. at p. 198.)
In explaining why this error does not create a structural defect requiring automatic reversal, the Evans court pointed out: “Appellant received a full opportunity to put on evidence and make argument to support his claim of innocence. He was tried by a fairly selected, impartial jury and an impartial judge. He was adequately represented by counsel. Aside from the challenged instruction, the jury was clearly instructed that it had to find the defendant guilty beyond a reasonable doubt as to every element. ‘Placed in context, the erroneous... instruction does not compare with the kinds of errors that automatically require reversal of an otherwise valid conviction.’ [Citation.]” (Evans, supra, 62 Cal.App.4th at p. 197.)
Finally, the Evans court pointed out that in the seminal case of Chapman v. California (1967) 386 U.S. 18 (Chapman), the United States Supreme Court applied a harmless error analysis to a case involving prosecutorial comment upon a defendant’s failure to testify. (Evans, supra, 62 Cal.App.4th at p. 197.) The trial court in Chapman also advised the jury that it could draw adverse inferences from the defendants’ failure to testify. (Ibid.) The Supreme Court held that defendant’s Fifth Amendment rights under Griffin v. California (1965) 380 U.S. 609 had been violated. It concluded, however, that the error could be regarded as harmless if the court is “able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman, supra, 386 U.S. at p. 24.) The Evans court described this holding as “[p]erhaps the most persuasive reason for reaching the conclusion we do.” (Evans, supra, 62 Cal.App.4th at p. 197.)
We agree with the Evans court and hold that the trial court’s inadvertent failure to give CALJIC Nos. 2.60 and 2.61 upon request is an error amenable to harmless error analysis. Turning now to the question of whether the error here compels reversal, “[u]nder Chapman, the question is whether there is a reasonable doubt that the error contributed to the verdict.” (People v. James (2000) 81 Cal.App.4th 1343, 1362.) Error arising from the failure to give CALJIC Nos. 2.60 and 2.61 may be considered “harmless beyond a reasonable doubt if the evidence of guilt is compelling. [Citation.]” (Evans, supra, 62 Cal.App.4th at p. 198.) This is such a case.
The evidence at trial included vivid eyewitness accounts from three young men who unequivocally identified the driver of the Buick as the person who fired the shot that injured Murphy. When the Buick was stopped by police within minutes of the shooting, appellant was the driver. A loaded semiautomatic weapon, a spent shell casing, and ammunition were found in the car. The prosecution’s expert on gunshot residue testified the presence of residue on appellant’s hand was consistent with several scenarios, including that he shot the gun. Most importantly, one of appellant’s friends who was riding in the Buick at the time of the shooting identified appellant as the shooter in a tape-recorded statement made to the police shortly after the shooting. While he recanted his identification at trial, the jury could reasonably conclude that the witness gave a truthful pretrial statement but recanted his identification because he feared retaliation or being labeled a “snitch.” The defense failed to offer any witnesses or evidence that would cast doubt on any aspect of the prosecution’s case. It follows that the evidence of guilt adduced at appellant’s trial can only be characterized as “compelling.” (Evans, supra, 62 Cal.App.4th at p. 198.) That being the case, the court’s failure to read CALJIC Nos. 2.60 and 2.61 to the jury was harmless beyond a reasonable doubt.
B. Sufficiency of Evidence for Conviction for Attempted Murder
Appellant argues there was insufficient evidence to show his specific intent to kill the victim under traditional attempted murder principles. As he emphasizes, unlike the mental state for murder, which does not require an intent to kill but only a conscious disregard for life (implied malice), attempted murder requires the specific intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).)
Whether a person possesses an intent to kill is a question for the trier of fact. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946 & fn. 4 (Lashley).) Absent direct evidence, the defendant’s intent must be derived from all the circumstances of the attempt, including his actions and words. (Id. at pp. 945-946.) “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. [Citations.]” (Id. at p. 946.) “Our role is to determine the legal sufficiency of the found facts and not to second guess the reasoning or wisdom of the fact finder.” (Ibid.)
Appellant argues the evidence in this case “does not show that appellant desired Murphy’s death or that appellant knew to a substantial certainty that Murphy’s death would occur” as are required for the jury to find an intent to kill. To show there is insufficient evidence of his intent to kill, appellant points to an “absence of motive” and the fact that “appellant fired only a single bullet.”
However, our Supreme Court has held that “the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive[.] Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive—the very act of firing a weapon ‘ “in a manner that could have inflicted a mortal wound had the bullet been on target” ’ is sufficient to support an inference of intent to kill. [Citation.]” (Smith, supra, 37 Cal.4th at p. 742.)
We find the case of Lashley, supra, 1 Cal.App.4th 938 to be particularly instructive on these points. In Lashley, the defendant, who was standing on the balcony of his second-floor apartment, shouted racial slurs at the victim, who was walking below with his three cousins. (Id. at p. 942.) During the verbal altercation, the defendant was joined on his balcony by several others. He “warned that he would send someone down ‘to kick ass.’ ” (Ibid.) Approximately five minutes later, defendant, still standing on the balcony, aimed a rifle at the victim and fired a single shot, which struck the upper portion of the victim’s left arm and pierced his lung. (Id. at p. 943.)
After the defendant was convicted of attempted murder, he contended on appeal that the evidence was insufficient to establish that he had the specific intent to kill. His argument rested on “the notion that had he truly intended to kill [the victim] he would have fired more than one shot at his target or taken some other action to insure the accuracy of his aim.” (Lashley, supra, 1 Cal.App.4th at p. 945.) The Lashley court rejected this argument, holding that “there was sufficient evidence from which the [trier of fact] could find that defendant harbored the requisite intent necessary to support his conviction for attempted murder.” (Ibid.) The court reasoned as follows: “Defendant’s conduct prior to the shooting, which included a threat to do bodily harm, combined with the testimony that he took aim before firing, and the seriousness of the victim’s injuries constitutes substantial evidence on the issue of intent. The very act of firing a.22-caliber rifle toward the victim at a range and in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill under the circumstances presented here.” (Ibid.)
Under the legal principles set forth above and in light of the circumstances of this case, we conclude that there is substantial evidence to support the jury’s determination that appellant had the requisite specific intent to kill Murphy. According to numerous witnesses, the shooting was preceded by a verbal taunt, “I’ll wet your T-shirt up,” which indicated an intention to shoot someone. Appellant then made a U-turn and positioned his vehicle so that he was approximately 10 yards from Murphy. Appellant then aimed and fired a nine-millimeter semiautomatic gun at him, wounding him in the leg. “The 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. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.” (Lashley, supra, 1 Cal.App.4th at p. 945.) Consequently, we reject appellant’s claim that there is insufficient evidence to support the attempted murder conviction.
C. Cruel and Unusual Punishment
Appellant contends his 25-year-to-life sentence imposed for the firearm enhancement of section 12022.53, subdivision (d) should be reversed because it violates the prohibition against cruel and/or unusual punishment under the state and federal Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)
Section 12022.53, subdivision (d) currently provides: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”
Appellant forfeited this argument by failing to raise it in the trial court in the first instance. (People v. Norman (2003) 109 Cal.App.4th 221, 229 (Norman); People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) We will nevertheless “reach the merits under the relevant constitutional standards, in the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim.” (Norman, supra, 109 Cal.App.4th at p. 230.)
Courts have repeatedly held that sentences imposed under section 12022.53, and subdivision (d) in particular, do not constitute cruel or unusual punishment as defined under either the state or federal Constitutions. (See, e.g., People v. Felix (2002) 108 Cal.App.4th 994, 1000 (Felix) [§ 12022.53, subd. (b) ]; People v. Taylor (2001) 93 Cal.App.4th 318, 323-324 [same]; People v. Gonzales (2001) 87 Cal.App.4th 1, 16-19 [§ 12022.53]; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212-1216 (Zepeda) [addressing § 12022.53, subd. (d) ]; People v. Martinez (1999) 76 Cal.App.4th 489, 493-498 (Martinez) [same].) The courts in Zepeda and Martinez both emphasize that the determination of proper penalties is a matter for the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among the different approaches. (Zepeda at p. 1213; Martinez at p. 494.) Reviewing courts must grant substantial deference to the Legislature’s choices and “[o]nly in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive....” (Zepeda at p. 1214; Martinez at p. 494.)
Under these authorities, we reject appellant’s argument that “a comparison of the punishment under section 12022.53, subdivision (d) with the statutory punishment in California for other [gun] offenses” shows that the punishment is cruel and grossly disproportionate. As the Zepeda court pointed out, the mandatory nature of section 12022.53, subdivision (d) “merely reflects the Legislature’s zero-tolerance toward the use and discharge of firearms during the commission of a crime. It does not render the penalties excessive as a matter of law in every case.” (Zepeda, supra, 87 Cal.App.4th at p. 1214.) Further, both Zepeda and Martinez emphasized that section 12022.53 recognizes gradations of culpability and takes into account mitigating factors: “Section 12022.53 as a whole represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes. The section is limited, in the first place, to convictions of certain very serious felonies.... The statute then sets forth three gradations of punishment based on increasingly serious types and consequences of firearm use in the commission of the designated felonies: 10 years if the defendant merely used a firearm, 20 years if the defendant personally and intentionally discharged it, and 25 years to life if the defendant’s intentional discharge of the firearm proximately caused great bodily injury [or death].... Thus, contrary to appellant’s contention, the statute does recognize different gradations of culpability. [Citations.]” (Martinez, 76 Cal.App.4th at p. 495, fn. omitted; Zepeda, 87 Cal.App.4th at pp. 1214-1215.)
In arguing his sentence was grossly disproportionate, appellant also focuses on his personal characteristics––namely, the fact that he was 22 years old at the time of the offense and had “absolutely no adult criminal record.” Moreover, he was a high school graduate who “was employed at Walgreen’s in El Sobrante and had worked there for five years previously.”
That appellant has no adult criminal record is not determinative. (Martinez, supra, 76 Cal.App.4th at p. 497; Felix, supra, 108 Cal.App.4th at p. 1001.) Additionally, the fact that appellant had an excellent employment history does not mitigate the extreme seriousness and aggravated nature of this crime. (People v. Alvarado (2001) 87 Cal.App.4th 178, 199-200 [life term for a rape during a burglary constitutional despite defendant’s age (18), lack of record, remorse].)
The record reflects that appellant was integrally involved in the events of October 22, 2006, and completely responsible for turning a chance encounter between two sets of young men into a potentially deadly incident. Instead of simply driving away from the scene, appellant chose to respond to the verbal taunting with deadly force; and as a result of his actions, an unarmed person was shot. The offense was committed in a manner that was reckless and reflected a high degree of callousness. Hence, appellant’s arguments do not compel us to strike appellant’s enhanced sentence as cruel or unusual.
IV.
DISPOSITION
The judgment is affirmed.
We concur: SEPULVEDA, J., RIVERA, J.