THE PEOPLE v. THOMAS LEE WILEY (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTSSTATEMENT OF THE CASE

Appellant, Thomas Lee Wiley, was charged in a first amended information filed on February 25, 2010, with attempted murder (Pen.Code, §§ 664, 187, subd. (a), count one),¹ mayhem (§ 203, count two), making criminal threats (§ 422, count three), and felony possession of a firearm after acquiring a qualifying prior conviction (§ 12021, subd. (a)(1), count four).   The information alleged enhancements in counts one and two for causing the victim great bodily injury (§ 12022.7, subd. (a)), personally and intentionally discharging a firearm causing the victim great bodily injury (§ 12022.53, subd. (d)), and personal use of a firearm (§ 12022.5, subd. (a)).  Count one also alleged appellant's conduct caused great bodily injury leaving the victim in a coma and to suffer paralysis (§ 12022.7, subd. (b)).  Count three alleged an enhancement for personal use of a firearm (§ 12022.5, subd. (a)).

On April 7, 2010, appellant brought a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118.   The court ultimately determined that appellant had failed to show his counsel was ineffective, but did establish that there was a breakdown in communications between counsel and appellant.   The court dismissed the public defender and ordered the appointment of independent, replacement counsel.   At the beginning of a jury trial, the court granted the prosecutor's motion to amend the first amended information to include an additional enhancement in count two for causing great bodily injury leading to paralysis of the victim (§ 12022.7, subd. (b)).

During a jury trial, the court granted appellant's motion for acquittal of making a criminal threat pursuant to section 1118.1.   Thereafter, appellant waived his constitutional rights pursuant to Boykin /Tahl,² executed a felony advisement, waiver of rights, and plea form, and pled guilty to count four, being a felon in possession of a firearm.

At the conclusion of the jury trial, appellant was acquitted of attempted murder and found guilty in count two of mayhem.   All of the enhancements were found true by the jury.

On July 15, 2010, the court sentenced appellant to a determinate prison term of four years for mayhem and a concur

rent term of four years for being a felon in possession of a firearm.   The court sentenced appellant to a consecutive, indeterminate prison term of 25 years to life for the section 12022.53, subdivision (d), enhancement.   The court struck the remaining enhancements pursuant to section 12022.53, subdivision (f).  The court granted total custody credits of 338 days.   The court imposed a restitution fine of $5,000 and a victim restitution fine of $2,466.74.   Appellant filed a timely notice of appeal.

On September 2, 2009, Martin Rodriguez lived in an apartment on Dakota in Fresno with his wife and two dogs.³  At about 10:00 p.m., Rodriguez could hear what he thought was appellant's television set through the common wall that they shared.   The noise was coming through loud and clear.   Rodriguez had an agreement with appellant to knock on the wall to get him to turn down the volume.   Rodriguez knocked on the wall.

Rodriguez heard a loud banging on his back door from appellant.   Rodriguez got up, dressed himself, and went out the back door of his apartment.   Rodriguez saw appellant outside and asked him what was wrong.   Appellant pulled the bolt back on his gun, put a bullet in the chamber, and said to Rodriguez, “ ‘oh, you want to get shot, don't you.’ ”

Appellant pulled back the hammer of the gun.   Rodriguez slapped the gun to the side as appellant was raising it up to point at Rodriguez.   The two men were only three feet apart.   Appellant raised the gun back up to Rodriguez's neck and fired.   Rodriguez heard appellant cussing at him.   He also heard screaming in the background.   Rodriguez fell to the ground.

Dr. Margaret Wolfe was the surgeon who attended to Rodriguez in the hospital.   Rodriguez had two through-and-through bullet wounds to his neck.   There was a complete transection, or severance, of the spinal cord between the C–4 and C–5 vertebrae.   This type of injury causes quadriplegia, or the inability to move the extremities.   The injury also causes impairment of the breathing muscles.   There is also the inability to feel heat, pain, or light touch.

Rodriguez's injuries are permanent and will require total care, including feeding, bathing, grooming, and turning the patient.   Rodriguez already had pneumonia more than once.   Even when pneumonia is properly treated, there is an 18 percent mortality rate for patients like Rodriguez.

Dr. Stephen Grossman treated Rodriguez in a sub-acute treatment center.   Dr. Grossman explained that Rodriguez had a limited ability to move his arms and legs, but he could not feed himself, turn on a light, or make a telephone call.   Over time, Rodriguez gained the ability to move one finger and could make a small shoulder shrug.   Rodriguez was able to graduate from being fed through a tube to eating regular food.   Dr. Grossman explained that Rodriguez's injuries are permanent and all of his basic feeding and grooming needs will require assistance the rest of his life.

Appellant's blood-alcohol level was .21 percent at the time it was collected at 1:48 a.m. It was likely higher than that at the time of the shooting.   A blood-alcohol level of .21 percent would have left appellant with marked physical and mental impairments.

Appellant testified on his own behalf.   He admitted he was convicted of welfare fraud and perjury in 2003.   Due to injuries from a drive-by shooting when he was younger, appellant is partially paralyzed and cannot fully lift his right arm.   Appellant has experienced weakness in his right side for over 20 years.   He cannot fully extend his right arm.

Appellant tried to avoid Rodriguez and did not have a friendly relationship with him.   He tried to talk to Rodriguez about his dogs because he would step in dog poop while throwing away his trash.   This caused Rodriguez to become very angry with appellant.   They did have an agreement to knock on each other's walls if things became too noisy.

Appellant was drinking his last beer at around 10:00 p.m. When he went to the restroom, his television became very loud and he could not immediately turn the volume down.   Appellant heard Rodriguez demand that he “ ‘turn that goddamn music down.’ ”   He also heard Rodriguez complain that he was sick of “ ‘this black motherfucker,’․ ‘I'm going to do something to him—I'm going to hurt him.’ ”   Appellant heard Rodriguez's door slam and heard Rodriguez at his back door.   Appellant opened the door and Rodriguez demanded he turn his music down.

Appellant was scared and went to an ice chest where he had a gun.   He knew that as a convicted felon he was not supposed to possess a gun.   Appellant grabbed the gun, stepped outside, and told Rodriguez to get away from his home.   He only wanted to scare Rodriguez.   Rodriguez was walking back toward his own apartment, however, he turned around and began coming toward appellant at a fast pace.

Because Rodriguez was still coming at appellant, he was scared.   Rodriguez was swinging his arms and tried to knock the gun out of appellant's hand.   Appellant closed his eyes and thought Rodriguez had grabbed the gun.   Appellant closed his eyes and pulled the trigger of the gun.   He insisted he was not trying to shoot Rodriguez.

APPELLATE COURT REVIEW

Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently.  (People v. Wende (1979) 25 Cal.3d 436 (Wende ).)   The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court.   By letter on December 30, 2010, we invited appellant to submit additional briefing.

Appellant replied with a brief letter stating the victim threatened him, he was confused, everything happened so fast he did not realize he had a weapon, and seeking sentencing leniency.   It appears appellant is challenging the sufficiency of the evidence of his conviction and his prison sentence.

In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.   The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.   It is the jury, not the appellate court, which must be convinced of a defendant's guilt beyond a reasonable doubt.   If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.  (People v. Rodriguez (1999) 20 Cal.4th 1, 11;  see also Jackson v. Virginia (1979) 443 U.S. 307, 317–320 and People v. Johnson (1980) 26 Cal.3d 557, 578.)

In reviewing a challenge to the sufficiency of the evidence, appellate courts do not determine the facts.   We examine the record as a whole in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment.   (People v. Guerra (2006) 37 Cal.4th 1067, 1129;  People v. Kraft (2000) 23 Cal.4th 978, 1053.)   Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction.   (Evid.Code, § 411;  People v. Young (2005) 34 Cal.4th 1149, 1181.)

There was substantial evidence adduced at trial that appellant shot Rodriguez in the neck, causing spinal injuries that have permanently impaired Rodriguez's ability to move his limbs as well as impairing his respiratory function.⁴  For purposes of section 203, appellant has rendered Rodriguez's limbs disabled and/or useless.   There is no merit to appellant's assertion of insufficient evidence to support his convictions.

In reviewing for abuse of a trial court's sentencing discretion, we are guided by these fundamental precepts.   The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.   In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives and its discretionary imposition of a particular sentence will not be set aside on review.   (People v. Carmony (2004) 33 Cal.4th 367, 376–377.)

The trial court in the instant action chose the midterm of four years for mayhem (§§ 203, 204).   The court imposed the term of 25 years to life in accordance with section 12022.53, subdivision (d), and further dismissed the outstanding enhancements pursuant to section 12022.53, subdivision (f).  We discern no error and note that appellant has failed to meet his burden to clearly show the sentencing decision was irrational or arbitrary.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise designated, all statutory references are to the Penal Code..  FN1. Unless otherwise designated, all statutory references are to the Penal Code.

FN2. Boykin v. Alabama (1969) 395 U.S. 238;  In re Tahl (1969) 1 Cal.3d 122..  FN2. Boykin v. Alabama (1969) 395 U.S. 238;  In re Tahl (1969) 1 Cal.3d 122.

FN3. Appellant was acquitted of attempted murder by the jury, the trial court granted an acquittal motion on the allegation of making criminal threats, and appellant admitted being a felon in possession of a firearm.   We will, therefore, focus our factual summary on the remaining count for mayhem.   We will also not review the largely redundant testimony of the victim's neighbors who witnessed or heard the shooting and who also testified concerning the criminal threats allegation..  FN3. Appellant was acquitted of attempted murder by the jury, the trial court granted an acquittal motion on the allegation of making criminal threats, and appellant admitted being a felon in possession of a firearm.   We will, therefore, focus our factual summary on the remaining count for mayhem.   We will also not review the largely redundant testimony of the victim's neighbors who witnessed or heard the shooting and who also testified concerning the criminal threats allegation.

FN4. Section 203 provides:“Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.”.  FN4. Section 203 provides:“Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.”

THE COURT * FN*.  Before Dawson, Acting P.J., Detjen, J., and Franson, J.