PEOPLE v. DAVIS (1984)

By jury trial, appellant was found guilty on five counts of attempted murder with use of a firearm.  (Pen.Code, §§ 187, 664, 12022.5.)   He was sentenced to consecutive terms totaling eighteen years and four months in the state prison.

About 9:30 p.m. on April 12, 1982, a large group of people was assembled in front of the house at 1387 East 56th Street, on the northwest corner of 56th and Ascot.   The group included, among others, the five victims in this case, Waydell Davis, Tracy Davis, Trayanna Davis, Pamela Pree and Johnny Jackson.¹

A blue station wagon, followed by a burgundy car, proceeded southbound on Ascot and stopped for a stop sign on the corner.   Among the five occupants of the blue station wagon, appellant was the front passenger.   While the cars were stopped, someone in the blue station wagon spoke to a person in one group on the sidewalk.

The cars turned right on 56th and then apparently went around the block because they came by again southbound on Ascot, to the same corner.

The cars slowed down, then appellant leaned out the window holding a shotgun and began firing.   Then a handgun was also fired from the blue station wagon.   Kevin Thompson, who was by the front yard, described appellant as looking straight out the window at the crowd.   Appellant fired the shotgun toward him, but he ducked and was not hit.

Pamela Pree, who was at the corner with a group which included Johnny Jackson, was so close when the shooting started that the flame from appellant's shotgun burned the skin on her shoulder.   Buckshots hit both her legs and she was treated at the hospital “for buckshots”.   Johnny Jackson was also shot in both legs.

Waydell Davis, Tracy Davis, and Trayanna Davis, held in her mother's arms, had just gone through the front gate on their way to the front steps.   Appellant was within about 25 feet.   When Waydell Davis turned toward the direction of the shooting, he was shot in the cheek and in the leg.   A one-half inch bullet went through his cheek.   He reached into his mouth with his finger and pulled the bullet out.   He was treated at the hospital for his face and leg, but the bullet was never removed from his leg.

Tracy Davis was hit with a shotgun pellet on the side of her nose below the right eye.

Trayanna Davis was shot in the stomach with a .38 bullet.   She had surgery and was hospitalized for three weeks, one week of which was intensive care.

After the shooting the car sped away.

Appellant presented an alibi defense, supported by his testimony and that of friends and relatives that appellant was at home or at a friend's house at the time of the shooting.

SUFFICIENCY OF EVIDENCE

Appellant's main contention is that the evidence is insufficient to support his convictions of attempted murder and supports at most the crime of assault with a deadly weapon.   Pointing out that no evidence of motive or prior threats was presented, he argues there is no evidence of his intent to kill the victims.

 Appellant correctly states that the crime of attempted murder requires a specific intent to kill.  (People v. Murtishaw (1981) 29 Cal.3d 733, 764, 175 Cal.Rptr. 738, 631 P.2d 446;  People v. Snyder (1940) 15 Cal.2d 706, 708, 104 P.2d 639;  People v. Mize (1889) 80 Cal. 41, 43, 22 P. 80;  People v. Maciel (1925) 71 Cal.App. 213, 215–216, 234 P. 877.)   However, it is well established that the intent with which an assault was committed is a factual determination to be made by the jury.   This intent is rarely susceptible to direct proof;  it must be inferred from the facts and circumstances surrounding the act.   The nature of the assault, especially the weapons used and the nature, seriousness and location of the wounds, as well as the consequences likely to follow, are among the circumstances which may support a finding that an assault was made with an intent to commit murder.  (People v. Becerra (1963) 223 Cal.App.2d 448, 450, 35 Cal.Rptr. 808;  People v. Dorsey (1969) 270 Cal.App.2d 423, 428, 75 Cal.Rptr. 658;  People v. Sartain (1968) 268 Cal.App.2d 486, 489–490, 73 Cal.Rptr. 799.)   For instance in People v. Sartain, supra, the defendant ran away when a police officer approached to talk to him.   The officer gave chase, and the defendant whirled around and shot at the officer with a .38 revolver from about eight feet away.   The court upheld the defendant's conviction of assault with intent to commit murder, stating “The question of the intent with which an act was done is a question of fact.   Here the appellant for all intents and purposes fired his revolver point blank at the officer.   There was no self-defense involved by any stretch of the imagination.   We view the matter as an appellate court and consider the evidence in favor of the prosecution under the circumstances.”  (Id., at pp. 489–490, citations omitted, 73 Cal.Rptr. 799.)

 In this case appellant repeatedly fired a shotgun into a crowd of nearby people.   One victim, Pamela Pree, was so close she was burned by the flame of the shotgun.   The furthest victims were within twenty-five feet.   One witness described appellant as looking directly into the crowd and firing at the people.   A .38 handgun was also fired from the same car.   The wounds received by several of the victims were potentially life threatening.   Considering the nature of the weapons used, the nearness of the victims and the seriousness and location of the wounds, the jury could reasonably conclude as a question of fact that appellant had the intent to kill.

Appellant misplaces reliance upon People v. Belton (1980) 105 Cal.App.3d 376, 380–381, 164 Cal.Rptr. 340 and People v. Collie (1981) 30 Cal.3d 43, 62, 177 Cal.Rptr. 458, 634 P.2d 534.   In Belton, the defendant was convicted of attempted murder and of arson.   After visiting his ex-wife at her apartment building, the defendant set fire to the porch of the building.   The court reversed the conviction of attempted murder, finding that “Nothing in the evidence supports the inference that in starting these fires defendant wanted to murder anyone.   It would be equally plausible to speculate that he started the fires to impoverish his ex-wife by destroying her property, or, as suggested by some of the evidence, that he wanted the apartment building modernized and rebuilt at the insurance company's expense ․”  (105 Cal.App.3d at p. 380, 164 Cal.Rptr. 340.)  Belton is obviously distinguishable on its facts, and the court's conclusions as to the sufficiency of the evidence in that case have little if any relevance to a shooting case such as this.   However, appellant cites dictum in Belton that “Specific intent to kill is a necessary element of attempted murder.   It must be proved, and it cannot be inferred merely from the commission of another dangerous crime.   For example, intent to murder cannot be inferred from commission of the crime of assault with a deadly weapon ․”  (Id., at p. 380, 164 Cal.Rptr. 340.)

 This language in Belton is a source of potential confusion.   The authorities cited by Belton support only the well established proposition that the jury cannot be instructed to presume intent to kill from the doing of certain acts, because such instructions would invade the jury's factual determination of the question.   Thus, in an attempted murder case, it is error to instruct the jury on the doctrine of implied malice that when a killing results from an act creating a high probability of death, done for an antisocial purpose and with wanton disregard for human life, it constitutes murder.  (People v. Murtishaw, supra, 29 Cal.3d at pp. 763–765, 175 Cal.Rptr. 738, 631 P.2d 446;  People v. Mize, supra, 80 Cal. at p. 44, 22 P. 80.)   Similarly, it is error to instruct in an attempted murder case that the natural and probable consequences of every act deliberately done by a person of sound mind are presumed to have been intended by the person.  (People v. Mize, supra, at pp. 44–45, 22 P. 80;  People v. Snyder, supra, 15 Cal.2d at p. 708, 104 P.2d 639;  see People v. Miller (1935) 2 Cal.2d 527, 532–533, 42 P.2d 308;  People v. Maciel, supra, 71 Cal.App. at pp. 217–218, 234 P. 877.)

The rule that a jury should not be instructed that the law presumes intent to kill does not mean a jury cannot infer intent to kill from the circumstances of an assault with a deadly weapon.   The applicable principle is stated in People v. Maciel, supra, 71 Cal.App. at p. 218, 234 P. 877, “When a specific intent is an element of the offense, it presents a question of fact which must be proved like any other fact in the case.   It is nonetheless a question of fact, though it cannot be proved by direct and positive evidence.   All the circumstances surrounding the act furnish the evidence from which the presence or absence of the specific intent may be inferred by the jury;  and no presumption of law can ever arise that will decide it.”  (See also People v. Mize, supra, 80 Cal. at p. 45, 22 P. 80.)

In this case, the jury was properly instructed that conviction required a finding of specific intent to kill, and the jury was not instructed on implied malice.   The jury's conclusion as a factual matter that appellant had intent to kill is supported by the circumstances of the shooting.  (People v. Sartain, supra, 268 Cal.App.2d at pp. 489–490, 73 Cal.Rptr. 799.) ²

INSTRUCTION ON AIDING AND ABETTING

Appellant next contends that the two counts involving victims who were struck by handgun bullets should be reversed, because they must have been based on an aiding and abetting theory and the trial court erroneously instructed the jury in the language of CALJIC No. 3.01, recently disapproved in People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318.   Since 1974, CALJIC No. 3.01 has provided that a person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages, or instigates by act or advice, the commission of such crime.   A split of authority developed in the courts of appeal whether this instruction was accurate or whether it should be modified to provide that the accused must act not only with knowledge but with intent to aid the perpetrator.   While this appeal was pending, the Supreme Court decided in Beeman that the instruction should be revised to inform the jury that a person aids and abets the commission of a crime when, acting with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating the offense, he by act or advice aids, promotes, encourages or instigates the commission of the crime.  (35 Cal.3d at p. 561, 199 Cal.Rptr. 60, 674 P.2d 1318.)

The Supreme Court discussed several possible tests for determining whether the error in CALJIC No. 3.01 requires reversal.  (Id., at pp. 561–563, 199 Cal.Rptr. 60, 674 P.2d 1318.)   The court declined to announce a general rule, concluding only that in the circumstances of the case before it the defense presented by Beeman hinged on the very distinction between knowledge and intent as to which the jury was inadequately instructed, and reversal was required even under the ordinary error test of People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.   However, several courts of appeal which anticipated the Beeman decision have considered the question of harmless error, and we conclude that unless a rule of automatic reversal is ultimately adopted by the Supreme Court, the judgment in this case should be affirmed.

 Here, appellant did not request modification of CALJIC No. 3.01.  The sole defense was alibi.   No defense was presented, nor argument made to the jury, which would have been aided by modification of the standard instruction.   There was no evidence reasonably suggesting that, while firing at the victims himself with a shotgun and while aware of his companion's unlawful purpose, appellant did not intend to aid and abet his companion.

Under these circumstances, the error in CALJIC No. 3.01 was not prejudicial to appellant, whether under the Watson standard or the more stringent standard of harmless beyond a reasonable doubt.  (People v. Petty, supra, 127 Cal.App.3d at pp. 264–265, 179 Cal.Rptr. 413;  People v. Banks (1983) 147 Cal.App.3d 360, 367–369, 195 Cal.Rptr. 101;  People v. Patrick (1981) 126 Cal.App.3d 952, 968, 179 Cal.Rptr. 276;  People v. Lopez (1981) 116 Cal.App.3d 882, 888–889, 172 Cal.Rptr. 374.) ³

PROSECUTORIAL MISCONDUCT

Finally, appellant contends that the prosecutor committed misconduct in cross-examination of certain defense witnesses and in his related argument to the jury.   Vincent McGowan, appellant's friend, and McGowan's mother, Nancy Williams, had testified that appellant was at McGowan's house playing dominoes until 9:45 p.m.   McGowan stated he and appellant then went to appellant's house.   Appellant's mother had testified that she saw appellant watching television in her living room around 9:30 p.m.

On cross-examination the prosecutor asked these witnesses whether, knowing that appellant was detained for this crime, they had at any time during the four months prior to trial approached the police or the district attorney to state that appellant could not have committed the crime.   They relied they had not.   McGowan stated that he did not want to talk to the police because he did not trust the police.   Williams replied that she had no respect for the police, had not been asked to go to the police and that “I do not dip my nose into business that does not concern me.”   Appellant's mother replied “I didn't know I was supposed to ․”   In his argument to the jury, the prosecutor commented on the failure of the witnesses to come forward to the police or prosecution with their information that appellant could not have committed the crime.

Appellant made no objection in the trial court to this line of questioning or to the prosecutor's argument.   He now contends, however, that this was misconduct, on the theory that it “penalized” appellant for exercising a “privilege” not to disclose alibi witnesses to the prosecution prior to trial.⁴  Even assuming that the failure to object below could be excused on the ground that the trial judge had already indicated that such a line of questioning would be proper, appellant's argument is wholly without merit.

 It is well established that the prosecution may properly cross-examine a defense alibi witness about his prior failure to disclose the claimed alibi to law enforcement authorities.  (Annot. (1983) 20 A.L.R. 4th 245, 267–273 (collecting numerous cases).)   Such questioning is proper to test the credibility of the witness because of the principle that a prior failure to assert a fact, at a time it would have been natural to assert it, is inconsistent with such assertion for the first time at trial.  (People v. Brophy (1954) 122 Cal.App.2d 638, 648–649, 265 P.2d 593;  People v. Shaver (1898) 120 Cal. 354, 355–356;  3A Wigmore, Evidence (Chadbourn rev. ed. 1970) § 1042, p. 1056.)  “There may be explanations, ․ but the conduct is ‘prima facie’ an inconsistency.”  (3A Wigmore, supra.)

 In addition, such prior silence by the witness may indicate bias against the authorities.  (See People v. Hannon (1977) 19 Cal.3d 588, 601–602, 138 Cal.Rptr. 885, 564 P.2d 1203;  People v. Welte (1979) 77 Ill.App.3d 663, 33 Ill.Dec. 90, 396 N.E.2d 315, 316.)

 Alternative explanations for the witness' prior silence may be explored by the defendant on redirect examination.   These go to the weight, not the admissibility, of the evidence.   They are matters for the jury to determine.  (People v. Shaver, supra, 120 Cal. at pp. 355–356, 265 P.2d 593;  3A Wigmore, supra;  Commonwealth v. Rodgers (1977) 472 Pa. 435, 372 A.2d 771, 782.)

The courts which have considered the question have found that such cross-examination of the defendant's witnesses has nothing to do with the defendant's right to remain silent.  (People v. Outlaw (1979) 75 Ill.App.3d 626, 31 Ill.Dec. 339, 394 N.E.2d 541, 555;  People v. McClow (1972) 40 Mich.App. 185, 198 N.W.2d 707, 711;  State v. Lankford (1976) 31 N.C.App. 13, 228 S.E.2d 641, 646;  Glover v. State (Okl.Cr.1975) 531 P.2d 689, 693.)   The witnesses do not belong to the defendant, who has no authority to “order” them not to talk to the prosecution.  (People v. Hannon, supra, 19 Cal.3d at p. 601, 138 Cal.Rptr. 885, 564 P.2d 1203.)   The subject questioning tests their credibility, not the defendant's silence.

Appellant erroneously claims “the only way appellant could have avoided the adverse inferences created by the prosecutor's examination and argument would have been to order his alibi witnesses to disclose their information to the police prior to trial.”   On the contrary, a defendant may easily combat such inferences by having the witnesses explain at trial their reason for not having approached the authorities.  (Commonwealth v. Rodgers, supra, 372 A.2d at p. 782;  Annot., supra, 20 A.L.R. 4th 252.)   Appellant did so in this case.

That the prosecutor's cross-examination and argument had nothing to do with appellant's failure to disclose alibi witnesses prior to trial can be seen by supposing that appellant had disclosed his witnesses.   Even if the witnesses had thereafter cooperated with the police, the prosecutor still would have been entitled to cross-examine why they had not immediately approached the authorities on first learning that appellant was elsewhere at the time of the crime.   On the other hand, if, after their identities became known to the prosecution the witnesses had refused to talk to the authorities, they could have been impeached for bias.  (People v. Hannon, supra, 19 Cal.3d at pp. 601–602, 138 Cal.Rptr. 885, 564 P.2d 1203.)

 Thus, appellant's argument that the prosecutor's conduct “penalized” appellant for not disclosing witnesses to the prosecution is utterly without merit.   A defendant must expect that his alibi witnesses will be tested on cross-examination, under the accepted rules of evidence, just as any other witness.  (McLemore v. State (1979) 87 Wis.2d 739, 275 N.W.2d 692, 701.)   Thorough cross-examination by the prosecutor of a defendant's alibi witnesses is critical to the ascertainment of the truth.  (People v. Rodriguez (1963) 222 Cal.App.2d 502, 506, 35 Cal.Rptr. 435;  see People v. Southack (1952) 39 Cal.2d 578, 590, 248 P.2d 12.)

The judgment is affirmed.

FOOTNOTES

1.   The Davis victims are no relation to appellant.   The location was the home of Waydell Davis.   Tracy Davis was his daughter, and Trayanna Davis was Tracy's 15-month old child.

2.   Appellant's reliance on People v. Collie, supra, 30 Cal.3d at page 62, 177 Cal.Rptr. 458, 634 P.2d 534, is similarly misplaced.   Collie, like Belton, involved attempted murder by arson.   The court reversed because the jury was erroneously instructed on implied malice, not because of insufficiency of evidence.   In the same opinion, at page 63, the Supreme Court also cited with approval People v. Sartain, supra.

3.   We are aware of People v. Johnson (1984), 155 Cal.App.3d 241, 201 Cal.Rptr. 908, which concludes that reversal should be automatic, the theory being that the former instruction is similar in effect to a conclusive presumption of criminal intent.   The Supreme Court considered this option in Beeman (35 Cal.3d at p. 561, fn. 4, 199 Cal.Rptr. 60, 674 P.2d 1318) but was not yet prepared to adopt it.   Accordingly, no present California authority requires automatic reversal.   In light of the potential impact on the administration of justice, any rule compelling automatic reversal of all cases in which the standard instructions on aiding and abetting were given should come from the Supreme Court.

4.   Appellant concedes his argument is a novel extension of Griffin v. California (1965) 380 U.S. 609, 614, 85 S.Ct. 1229, 1232, 14 L.Ed.2d 106.   Actually, the United States Supreme Court has indicated that a state may enact a notice of alibi requirement without violating the federal constitutional privilege against self-incrimination, but the California Supreme Court has declined to permit such prosecutorial discovery in the absence of legislative enactment, and has suggested possible questions could arise under federal due process or the California privilege against self-incrimination.  (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 117 Cal.Rptr. 437, 528 P.2d 45.)

ASHBY, Associate Justice.

FEINERMAN, P.J., and HASTINGS, J., concur.