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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Damien SCOTT et al., Defendants and Appellants.

No. B074868.

Decided: July 17, 1995

Robert E. Boyce, under appointment by the Court of Appeal, San Diego, for defendant and appellant Damien Scott. Gordon S. Brownell, under appointment by the Court of Appeal, San Francisco, for defendant and appellant Derrick Brown. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Linda C. Johnson, Supervising Deputy Atty. Gen., and Sharon Wooden Richard, Deputy Atty. Gen., for plaintiff and respondent.

A jury convicted appellants Damien Scott and Derrick Brown of second degree murder (Pen.Code,1 § 187;  count I), two counts of attempted murder (§§ 664/187;  counts II and III), two counts of assault with a firearm (§ 245, subd. (a)(2);  counts V and VII), found firearm allegations true (§§ 12022.5, 12022, subd. (a)(1)) and acquitted them of two alternative counts of assault with a firearm (§ 245, subd. (a)(2);  counts IV and VI).

Appellants contend (1) the trial court improperly instructed on transferred intent (2) there was prejudicial juror misconduct (3) the trial court improperly instructed on attempted murder (4) the trial court improperly admitted hearsay evidence and (5) there was Culbreth (In re Culbreth (1976) 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23) error.

We find merit only in appellants' last contention.   Accordingly, we modify the judgments and, as modified, affirm them.


There being no insufficiency of evidence claim, the facts may be stated simply.   Our perspective favors the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)

A brief introduction of the dramatis personae will be useful.

Appellants Scott and Brown are brothers and their mother is Elaine Scott.

Calvin Hughes had a romantic relationship with Elaine Scott and, along with his sister Eugenia Griffin, shared an apartment with her.

A few days before May 11, 1991, Calvin Hughes physically assaulted Elaine Scott.   Appellants “rescued” her and both Calvin Hughes and his sister Eugenia Griffin were forced out of the apartment that same night.   They were able to take only some of their belongings with them.

On May 11, 1991, Calvin Hughes decided to retrieve the rest of his belongings.   He borrowed his sister's car and, with Gary Tripp, went to Elaine Scott's apartment.   When she wouldn't let him in, he forced open the door, got his possessions, and on the way out heard her say she was going to “beep her sons.”

Calvin Hughes and Gary Tripp drove to Jesse Owens Park in South Los Angeles.   They parked and got out of the car.

A little later, Nathan Kelley drove up with his son Jack Gibson.   Calvin Hughes walked over and stood by their car talking to them.   At this time, Eugenia Griffin was sitting in her car with the door open and her legs out.

Three cars drove into the park:  a white Nissan Sentra, a blue Monte Carlo, and a white Monte Carlo.   Appellant Scott owned the blue Monte Carlo, appellant Brown owned the other Monte Carlo.

Appellants and their mother, Elaine Scott, were all in the lead car.   Several people were in each of the other two.   When the cars were close to Calvin Hughes and Eugenia Griffin, the cars stopped.   Appellants began shooting.

Calvin Hughes initially took cover behind Nathan Kelley's car and, when there was a lull in the shooting, ran toward the park gym.   The shooting resumed and didn't stop until he escaped behind the gym.   During his escape a bullet went through the heel of his shoe.

Eugenia Griffin dove to the floor of her car and stayed there until the shooting stopped.   Many bullets struck her car.   It looked like “a colander.”

Other bullets struck Gary Tripp, one in the leg, another in the buttocks.

Jack Gibson, the passenger in the car Calvin Hughes had been standing by when the shooting started, was fatally shot in the head.

The three cars fled.   Appellants were later arrested.

Neither appellant testified.


1. Appellants contend the trial court improperly instructed on transferred intent.

 The trial court instructed the jury:  “As it relates to the charge of murder, where one attempts to kill a certain person, but by mistake or inadvertence kills a different person, the crime, if any, so committed is the same as though the person originally intended to be killed, had been killed.”  (CALJIC No. 8.65, modified.)

Appellants do not challenge the doctrine of transferred intent nor the correctness, in the abstract, of the trial court's formulation of the doctrine.   Rather, they contend the doctrine is not applicable where, as here, “the prosecution elects to seek convictions ․ against both the intended and unintended victims․”

Appellants have misconstrued the authorities and have reached an overbroad conclusion.

In People v. Birreuta (1984) 162 Cal.App.3d 454, 208 Cal.Rptr. 635, the defendant told the police he went into his neighbor's bedroom, “shot JoAnn, started to leave, heard a noise, turned and fired again”—this time accidentally killing his wife.  (Id. at p. 458, 208 Cal.Rptr. 635.)   A transferred intent instruction was given and the defendant was convicted of the first degree murders of both JoAnn and his wife.

The Court of Appeal reversed the wife-murder conviction (where intent had been transferred), holding it was error to instruct on transferred intent.   It stated:  “The function of the transferred intent doctrine is to insure the adequate punishment of those who accidentally kill innocent bystanders, while failing to kill their intended victims.   But for the transferred intent doctrine, such people could escape punishment for murder, even though they deliberately and premeditatedly killed—because of their ‘lucky’ mistake.   The transferred intent doctrine is born of the sound judicial intuition that such a defendant is no less culpable than a murderer whose aim is good.   It insures that such a defendant will not be allowed to defend against a murder charge by claiming to have made a mistake of identity, a poor aim or the like.

“When the intended victim is killed, however, there is no need for such an artificial doctrine.   The defendant's premeditation, deliberation, intent to kill and malice aforethought are all directly employable in the prosecution for murdering his intended victim.   The accidental killing may thus be prosecuted as a manslaughter or second degree murder without ignoring the most culpable mental elements of the situation.   There is no danger that a premeditated killing will go unpunished or be treated as a manslaughter because the murder of the intended victim will presumably be the subject of prosecution.

“We conclude that the interests of justice are best served by differentiating between killers who premeditatedly and deliberately kill two people, and killers who only intend to kill one person, and accidentally kill another.   Both types should be punished for both killings, but the former type is clearly more culpable.   In the first situation, the killer has committed two intended first degree murders.   In the second situation—represented here by appellant according to his statement to police—the killer has committed one first degree murder and one second degree murder or manslaughter.   If the transferred intent doctrine is applicable when the intended victim is killed, this difference disappears.”  (Id. at p. 460, 208 Cal.Rptr. 635.)

Unlike Birreuta, where the intended victim was killed, here only an unintended victim was killed.   It is precisely in this circumstance the transferred intent doctrine serves its function.   In the words of Birreuta, “But for the transferred intent doctrine, such people could escape punishment for murder, even though they deliberately and premeditatedly killed—because of their ‘lucky’ mistake.”  (Ibid.)

 Appellants also argue it was error to instruct the jury that transferred intent applied to the attempted murder charges.   Had such an instruction been given it would have been error.  (People v. Czahara (1988) 203 Cal.App.3d 1468, 250 Cal.Rptr. 836;  People v. Calderon (1991) 232 Cal.App.3d 930, 283 Cal.Rptr. 833.)   There was no such instruction.   The trial court explicitly restricted the transferred intent instruction “to the charge of murder.”  (Italics added.)   Jurors are presumed to understand and follow the court's instructions.  (People v. Scott (1988) 200 Cal.App.3d 1090, 1095, 246 Cal.Rptr. 406.)

2. Appellants contend there was prejudicial juror misconduct.

 After the verdicts, the trial court informed the jury they could talk about the case.   Some jurors, including Mily Mason, paused in the corridor and talked to the defense attorneys.   Ms. Mason brought up the subject of the defendants not testifying and asked “Why didn't they testify?”   She told the defense attorneys she would sign an affidavit.

Appellants moved for a new trial and attached the declaration of Ms. Mason which stated:  “During the course of the jury deliberations, the fact that Damien Scott did not testify was discussed by the jury.   We conducted ourselves according to the Jury Instructions to deliberate with the case as presented.   The fact that we did not have the benefit of his testimony for his defense was a factor in our decision to find him guilty.”

The trial court set the matter for a hearing which the jurors were requested to attend.   Eleven of the twelve did.   The trial court questioned each under oath.   Some had no recollection of any discussion concerning a defendant not testifying.   Some remembered such a discussion had occurred with defense counsel after the verdicts.   Some remembered such a comment during deliberations and that it was immediately squelched.   Only Ms. Mason suggested there had been more than a squelched comment on the subject.

Appellants argue that by discussing appellants' failure to testify, the jury committed prejudicial misconduct.   We disagree.

 When, as here, juror testimony is in conflict “the trial court [is] in the best position to evaluate the conflicting testimony and determine the prejudicial effect of [the] conduct.”  (People v. Miranda (1987) 44 Cal.3d 57, 117, 241 Cal.Rptr. 594, 744 P.2d 1127.)   That determination, if supported by substantial evidence, must be upheld by this court.  (Ibid.)

The trial court, amply supported by the record, rejected the testimony of Ms. Mason.   It stated, “The court doesn't believe Ms. Mason․  She is not telling the truth when she says that's what happened in the jury room.”

Absent her testimony, the claimed jury misconduct consists only of a comment, immediately squelched, that appellants had not testified.   As to the significance of this comment, we agree with People v. Hord, a case remarkably similar to ours.  Hord observed, “The jury was obviously well aware here that defendant did not testify․  Thus the comments did not interject any new material into deliberations that was not already known by the jury from the trial itself.   Transitory comments of wonderment and curiosity, although misconduct, are normally innocuous, particularly when a comment stands alone without any further discussion.   The fact that only some of the jurors recalled the comments tends to indicate that this was not a discussion of any length or significance.”  (People v. Hord (1993) 15 Cal.App.4th 711, 727–728, 19 Cal.Rptr.2d 55.)

3. Appellants contend the trial court improperly instructed on attempted murder.

 Appellants contend the trial court gave conflicting instructions on the elements of attempted murder.

This is their argument:  the trial court, when defining attempted murder, stated “murder is the unlawful killing of a human being with malice aforethought” (CALJIC No. 8.66) and, earlier, in defining murder, stated “malice may be express or implied.”  (CALJIC No. 8.11.)   Since implied malice does not require an intent to kill but attempted murder does require such an intent (People v. Lee (1987) 43 Cal.3d 666, 670, 238 Cal.Rptr. 406, 738 P.2d 752), appellants claim error.

After a careful review of all the trial court's instructions, including their sequence, we are satisfied the jury understood intent to kill was an essential element of attempted murder.

In instructing the jury, the trial court began with general principles:  their duties as jurors (CALJIC No. 1.00), the instructions should be considered in their entirety (CALJIC No. 1.01), what is and what is not evidence (CALJIC Nos. 1.02, 2.00), credibility of witnesses (CALJIC No. 2.20), presumption of innocence and reasonable doubt (CALJIC No. 2.90), and other similar matters.

Then, the trial court addressed the subject of murder.   In sequence, it gave nine instructions all related to the crime of murder (CALJIC Nos. 8.10, 8.11, 8.20, 8.30, 8.31. 8.65 (modified), 8.70, 8.71, and 8.74).   It told them the crime of murder is the unlawful killing of a human being with malice aforethought (CALJIC No. 8.10) and malice may be either express or implied.  (CALJIC No. 8.11).

Then, in similar fashion, the trial court addressed the subject of attempted murder.   In sequence, it gave two instructions related to the crime of attempted murder.  (CALJIC Nos. 8.66 and 6.00).   The first stated:  “Defendant is accused in Counts Two and Three of the information of having committed the crime of attempt to commit murder in violation of Sections 664 and 187 of the Penal Code.

“Every person who attempts to murder another human being is guilty of a violation of Sections 664 and 187 of the Penal Code.

“Murder is the unlawful killing of a human being with malice aforethought.

“In order to prove such crime, each of the following elements must be proved;

“1. A direct but ineffectual act was done by one person towards killing another human being;  and

“2. The person committing such act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.”  (CALJIC No. 8.66, modified.)

The second, defining “attempt,” stated “a specific intent to commit the crime” was required.  (CALJIC No. 6.00.)

The next instruction addressed both the murder and attempted murder charges.   It stated:  “In the crimes charged in Counts 1, 2, and 3, namely, murder and attempted murder, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.   Unless such specific intent exists the crime to which it relates is not committed.

“The specific intent required is included in the definitions of the crimes set forth elsewhere in these instructions.”  (CALJIC No. 3.31 (1992 revision).)  (Italics added.)

Based on these instructions a reasonable juror would have understood the crime of attempted murder required express malice, namely, a specific intent to kill.  (See People v. Lee, supra, 43 Cal.3d 666, 677, 238 Cal.Rptr. 406, 738 P.2d 752;  People v. Visciotti (1992) 2 Cal.4th 1, 58–59, 5 Cal.Rptr.2d 495, 825 P.2d 388.)   No attorney suggested otherwise.

We find no error.

4. Appellants contend the trial court improperly admitted hearsay evidence.

 Over defense objection, Calvin Hughes testified to a statement by Elaine Scott.   He testified that on May 11, 1991, after he had forced his way into Ms. Scott's apartment and had “grabbed” his things, she reached for the telephone and stated “she was gunna beep her sons.”

Appellants acknowledge that Evidence Code section 1250 permits “evidence of a statement of the declarant's ․ intent ․ when ․ the evidence is offered to prove ․ conduct of the declarant.”  (People v. Morales (1989) 48 Cal.3d 527, 551–552, 257 Cal.Rptr. 64, 770 P.2d 244;  People v. Howard (1988) 44 Cal.3d 375, 402–407, 243 Cal.Rptr. 842, 749 P.2d 279;  People v. Earnest (1975) 53 Cal.App.3d 734, 741–744, 126 Cal.Rptr. 107;  Smith v. Slifer (1969) 1 Cal.App.3d 748, 751–753, 81 Cal.Rptr. 871;  1 Witkin, Cal.Evidence (3d ed.1986) § 752, pp. 733–734.)   They contend, however, that such statements are admissible only when they directly prove a relevant fact not when the proof is “through an extended and convoluted series of inferences.”   Our Supreme Court has considered and rejected this argument (People v. Howard, supra, 44 Cal.3d 375, 403–406, 243 Cal.Rptr. 842, 749 P.2d 279.)   So do we.

There was nothing convoluted about the inference to be drawn from Ms. Scott, hand on phone, saying she was going to beep her sons.   The inference is she did.   Such a communication from angry mother to protective sons was evidence of motive and, with an additional inference, of identification.   The statement was properly admitted.

5. Appellants contend there was Culbreth (In re Culbreth, supra, 17 Cal.3d 330) error.

The trial court imposed multiple gun use enhancements (§ 12022.5) as to each appellant.   Appellants contend, and respondent concedes, this constituted Culbreth error.   We agree.

Although overruled by People v. King (1993) 5 Cal.4th 59, 79, 19 Cal.Rptr.2d 233, 851 P.2d 27, Culbreth applies to the instant 1991 crimes and prohibits multiple gun use punishment for a single, indivisible shooting melee, even involving multiple victims.

We shall modify the judgments accordingly.


As to each appellant, the judgments are ordered modified by staying the weapon enhancements in counts 2, 3, 5, and 7;  changing the total (determinate) term imposed from 14 years, 8 months to 9 years, 4 months;  and in part 5, “Other orders,” changing the second sentence to read:  “Total 28 years and 4 months.”

As modified, the judgments are affirmed.


FN1. Statutory references, unless otherwise noted, are to the Penal Code..  FN1. Statutory references, unless otherwise noted, are to the Penal Code.

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.