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Full Opinion
The PEOPLE, Plaintiff and Respondent,
v.
Jarmaal Laronde SMITH, Defendant and Appellant.
Supreme Court of California
*165 Gregory Marshall, under appointment by the Supreme Court, for Defendant and Appellant.
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Janis Shank McLean, Janet E. Neeley, Stephen G. Herndon and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
*164 BAXTER, J.
The defendant in this case challenges the sufficiency of the evidence to support his conviction of two counts of attempted murder where he fired a single bullet into a slowly moving vehicle, narrowly missing a mother and her infant son. The evidence showed that the mother, who was known to defendant and was driving, and her baby, who was secured in a car seat directly behind her, were each in defendant's line of fire when he fired a single .38-caliber round at them from behind the car as it pulled away from the curb. The bullet shattered the rear windshield, narrowly missed both the mother and baby, passed through the mother's headrest, and lodged in the driver's side door.
On appeal, defendant contends his conviction of the attempted murder of the baby must be reversed for lack of substantial evidence that he harbored the requisite specific intent to kill the child. We disagree. Under the applicable deferential standard of review, we conclude the evidence is sufficient to support the jury's verdict finding defendant acted with intent to kill the baby as well as the mother. The fact that only a single bullet was fired into the vehicle does not, as a matter of law, compel a different conclusion. Accordingly, the judgment of the Court of Appeal shall be affirmed.
FACTS AND PROCEDURAL BACKGROUND
On the afternoon of February 18, 2000, Karen A. drove her boyfriend, Renell T., Sr. (Renell), to a friend's house on Greenholme Lane in Sacramento. She was driving her four-door Chevy Lumina, with Renell seated in the front passenger seat and their three-month-old baby, Renell T., Jr., secured in a rear-facing infant car seat in the backseat directly behind her. She parked alongside the curb on the street in front of the house, and Renell got out of the car. As Karen waited in the car to make sure Renell's friend was home, she saw defendant approaching from behind. Karen recognized defendant as a former friend. She had last spoken to him during a telephone conversation eight to nine months earlier during which he had told her the next time he saw her he would "slap the shit out of [her]."
Defendant walked up to the open front passenger window of Karen's car, looked inside and said, "Don't I know you, bitch?" Overhearing the statement, Renell turned around from the walkway leading to the house and said, "Well, you don't know me." As Renell walked back toward the car, defendant lifted his shirt to display a handgun tucked in his waistband. Renell said, "It is cool," and backed away from defendant. According to Karen, group of men on the street corner began approaching the car, and as Renell was entering the *166 vehicle through the front passenger door, defendant and the other men began hitting him.
As soon as Renell was securely inside the car, Karen started to pull away from the curb. After driving about one car length, she looked in her rearview mirror and saw defendant standing "[s]traight behind" her holding a gun. She heard a single gunshot, and although she did not see defendant pull the trigger, he was the only person she had seen with a gun. The bullet shattered the rear windshield, narrowly missed both Karen and the baby, passed through the driver's headrest, and lodged in the driver's side door. As soon as Karen reached a place of safety, she stopped to check the baby for injuries. He was screaming, his face covered with pieces of broken glass.
Renell's testimony generally corroborated Karen's testimony. He declined to identify defendant as the assailant because he did not want to be a snitch, but identified the assailant's gun as a .38-caliber revolver. After the shooting, a Sacramento County deputy sheriff searched defendant's room at his mother's home and recovered two .38-caliber shell casings.
Defendant testified he was unarmed on the day of the shooting, and that it was Renell who had displayed a gun during the confrontation. He claimed that Karen was his ex-girlfriend and that he had spoken to her over the telephone the day before the shooting. During this conversation, defendant told Karen the next time he saw her he would "slap the shit out of [her]." Karen hung up, and then Renell called back and threatened to "smoke" defendant. Defendant suggested he and Renell meet on Greenholme Lane the next day. When Renell arrived at the agreed location with Karen and the baby, defendant approached the car, saw Karen and the baby inside, and said, "What are you doing here, bitch?" Renell got out of the car, and defendant challenged him to a fistfight. Renell responded by pulling a semiautomatic handgun from his waistband. Although Renell did not fire, defendant heard a shot, hit the ground, heard several more shots and heard glass shattering. Defendant saw two .38-caliber casings lying on the ground, picked them up, put them in his pocket and brought them to his mother's house.
Defendant was charged by information with the attempted murder of Karen A. (Pen.Code, §§ 664, 187 count I),[1] the attempted murder of the baby (§§ 664, 187 count II), shooting at an occupied vehicle (§ 246 count III), child endangerment (§ 273a, subd. (a) count IV), and assault with a firearm (§ 245, subd. (a)(2) count V). The jury convicted defendant on all counts, finding, with respect to counts I and II, that he had personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and with respect to counts III, IV and V, that he had personally used a firearm (§ 12022.5, subd. (a)(1)).
Defendant was sentenced to state prison for 27 years for the attempted murder of Karen consisting of the middle term of seven years for the attempted murder and a 20-year firearm-use enhancement to be served concurrently with an identical 27-year term for the attempted murder of the baby. The court stayed sentencing on the remaining counts pursuant to section 654.
The Court of Appeal rejected defendant's claim that the evidence was insufficient to support his conviction of the attempted murder of the baby. We granted defendant's petition for review.
*167 DISCUSSION
Defendant does not challenge his conviction of the attempted murder of Karen. A. But he argues his conviction of the attempted murder of the baby must be reversed because, as stated in his opening brief, "only a single attempted murder conviction was possible on the facts here." Specifically, defendant asserts that the fact that he fired only one bullet into the vehicle reflects his intent to kill only one victim Karen A. He urges that "there was no proof of animus toward the baby," and argues his conviction of the attempted murder of that victim must be reversed for lack of substantial evidence that he harbored specific intent to kill the child.
In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. "`The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103; see Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560.)
"`Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' (People v. Jones (1990) 51 Cal.3d 294, 314, 270 Cal.Rptr. 611, 792 P.2d 643.)" (People v. Ochoa, supra, 6 Cal.4th at p. 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103.)
We first consider the mental state required for conviction of attempted murder. "The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice a conscious disregard for life suffices. (People v. Lasko (2000) 23 Cal.4th 101, 107, 96 Cal.Rptr.2d 441, 999 P.2d 666.)" (People v. Bland (2002) 28 Cal.4th 313, 327, 121 Cal.Rptr.2d 546, 48 P.3d 1107 (Bland).) In contrast, "[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623, 3 Cal.Rptr.3d 402, 74 P.3d 176; see People v. Swain (1996) 12 Cal.4th 593, 604-605, 49 Cal.Rptr.2d 390, 909 P.2d 994.) Hence, in order for defendant to be convicted of the attempted murder of the baby, the prosecution had to prove he acted with specific intent to kill that victim. (Bland, supra, 28 Cal.4th at p. 331, 121 Cal.Rptr.2d 546, 48 P.3d 1107.)
Intent to unlawfully kill and express malice are, in essence, "one and the same." (People v. Saille (1991) 54 Cal.3d 1103, 1114, 2 Cal.Rptr.2d 364, 820 P.2d 588.) To be guilty of attempted murder of the baby, defendant had to harbor express malice toward that victim. (People v. Swain, supra, 12 Cal.4th at pp. 604-605, 49 Cal.Rptr.2d 390, 909 P.2d 994.) Express malice requires a showing that the assailant "`"either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur." [Citation.]'" (People v. Davenport (1985) 41 Cal.3d 247, 262, 221 Cal.Rptr. 794, 710 *168 P.2d 861; quoting People v. Velasquez (1980) 26 Cal.3d 425, 434, 162 Cal.Rptr. 306, 606 P.2d 341.)
The mental state required for attempted murder is further distinguished from the mental state required for murder in that the doctrine of "transferred intent" applies to murder but not attempted murder. (Bland, supra, 28 Cal.4th at pp. 328-329, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) "In its classic form, the doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder." (Id. at p. 317, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) In contrast, the doctrine of transferred intent does not apply to attempted murder: "To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else." (Bland, supra, 28 Cal.4th at p. 328, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) Whether the defendant acted with specific intent to kill "must be judged separately as to each alleged victim." (Id. at p. 331, 121 Cal.Rptr.2d 546, 48 P.3d 1107.)
Last, the crime of attempted murder is not divided into degrees. (People v. Bright (1996) 12 Cal.4th 652, 665-669, 49 Cal.Rptr.2d 732, 909 P.2d 1354.) The prosecution may seek a jury finding that an attempted murder was "willful, deliberate, and premeditated" for purposes of sentence enhancement (§ 664, subd. (a)); (Bright at p. 669, 49 Cal.Rptr.2d 732, 909 P.2d 1354.) No such special finding was sought in this case. Accordingly, the prosecution had only to prove that defendant purposefully shot at the baby with express malice in order to establish the requisite state of mind for conviction of attempted murder.
The jury was properly instructed on the elements of attempted murder, including the requirement that defendant be found to have acted with specific intent to kill the baby in order to be convicted of the attempted murder of that victim.
Two important principles of law will further serve to inform the inquiry whether defendant could properly be convicted of two counts of attempted murder on the evidence introduced below, notwithstanding that he fired only one shot into the vehicle.[2]
First, with few exceptions, motive itself is not an element of a criminal offense. (See CALJIC No. 2.51; see also People v. Daly (1992) 8 Cal.App.4th 47, 59, 10 Cal.Rptr.2d 21; 1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Elements, § 4, pp. 202-204.) The jury below was properly so instructed. The crimes of murder and attempted murder are no exception. True, evidence of motive is often probative of intent to kill. Here, defendant was formerly acquainted with the mother, exchanged words with her, and called her a "bitch" moments before the *169 shooting. These circumstances suggested a motive for defendant's wanting to shoot at the mother, which in turn was probative of whether he shot at her with intent to kill. But evidence of motive is not required to establish intent to kill, and evidence of motive alone may not always fully explain the shooter's determination to shoot at a fellow human being with lethal force.
The second principle often furnishes the evidentiary ground for an inference that a shooter acted with intent to kill. Evidence of motive aside, it is well settled that intent to kill or express malice, the mental state required to convict of attempted murder, may in many cases be inferred from the defendant's acts and the circumstances of the crime. (See People v. Lee (1987) 43 Cal.3d 666, 679, 238 Cal.Rptr. 406, 738 P.2d 752.) "There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions. (People v. Lashley [(1991)] 1 Cal.App.4th [938,] 946, 2 Cal.Rptr.2d 629.) The act of firing toward a victim at a close, but not point blank, range `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....' (Id. at p. 945, 2 Cal.Rptr.2d 629.)" (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690, 60 Cal.Rptr.2d 761 (Chinchilla); see also People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225, 113 Cal.Rptr.2d 1.) "`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.' ([People v. Lashley, supra, 1 Cal.App.4th] at p. 945, 2 Cal.Rptr.2d 629.)" (Chinchilla, at p. 690, 60 Cal.Rptr.2d 761.)
An observation made by this court in People v. Arias (1996) 13 Cal.4th 92, 51 Cal.Rptr.2d 770, 913 P.2d 980, also has particular relevance to the inquiry at hand. We explained in that case that "if the jury found defendant's use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferred, even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance." (Id. at p. 162, 51 Cal.Rptr.2d 770, 913 P.2d 980, italics added.) Although Arias involved review of a capital murder conviction, our observation in that case is relevant to our inquiry into defendant's mental state here. The point is that where the act of purposefully firing a lethal weapon at another at close range gives rise to an inference of intent to kill, that inference is not dependent on a further showing of any particular motive to kill the victim. This follows from the principle that motive is generally not an element of a crime in the first instance, including the crimes of murder and attempted murder. One may kill with or without a motive and still be found to have acted with express malice. An inference of intent to kill drawn on evidence of a purposeful shooting with lethal force under all the attendant circumstances can support a conviction of attempted murder even without evidence of motive.
These principles, taken together, reflect 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, although again, where motive is shown, such evidence will usually be probative of proof of *170 intent to kill. 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. (Chinchilla, supra, 52 Cal.App.4th at p. 690, 60 Cal.Rptr.2d 761.) Where attempted murder is the charged crime because the victim has survived the shooting, this principle takes on added significance. Finally, even if the shooting was not premeditated, with the shooter merely perceiving the victim as "a momentary obstacle or annoyance," the shooter's purposeful "use of a lethal weapon with lethal force" against the victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill. (People v. Arias, supra, 13 Cal.4th at p. 162, 51 Cal.Rptr.2d 770, 913 P.2d 980.)
Applying these principles to the facts at hand, and viewing the evidence in the light most favorable to the People, presuming the existence of every fact the jury could reasonably deduce from the evidence in support of the judgment, we conclude the evidence is sufficient to support defendant's conviction of the attempted murder of the baby.
The relevant facts are these: Karen A. and her boyfriend Renell arrived on the scene with their three-month old son, Renell T., Jr. Karen was driving; the baby was in a car seat directly behind her. Karen testified she and defendant were former friends; defendant claimed she was his ex-girlfriend. Defendant appeared and approached the vehicle, looked in through the open passenger's window, and said to Karen, "Don't I know you, bitch?" Defendant testified he saw the baby seated in the backseat directly behind Karen. Renell, who had exited from the vehicle but heard defendant's comment, approached defendant, who lifted his shirt to reveal a handgun tucked in his waistband. An altercation commenced between Renell, defendant, and several other males standing at the scene. Renell managed to reenter the vehicle and Karen started to pull away from the curb. She testified defendant was the only one who had a gun and that he fired a single shot into the vehicle from a position directly behind it and a distance of approximately one car length as she was pulling away from the curb. The slug recovered from the driver's side door evidenced that defendant shot into the vehicle with a powerful .38-caliber handgun.
The bullet's trajectory is clearly marked in numerous photographic exhibits admitted into evidence at trial and transmitted to this court as part of the appellate record. We know from the trajectory of the bullet that it was fired from a position directly behind the car, consistent with Karen's testimony. The large-caliber bullet missed both the baby and the mother by a matter of inches as it shattered the rear windshield, passed through the mother's headrest, and lodged in the driver's side door. Although the mother was physically unharmed, the screaming baby's face was "full of glass pieces" from the shattered rear windshield.
The defense below offered nothing to undercut the force of the inference, drawn by the jury on the People's evidence, that defendant acted with intent to kill both victims when he fired off a single round at them from close range, each of whom he knew was directly in his line of fire. Defendant testified he was not the shooter, the implication being that some unidentified shooter must have fired the shot or shots at the car (defendant testified he heard multiple gun shots). The jury disbelieved him. His defense at trial thus furnishes no support for his claim on appeal that the People's evidence was insufficient *171 to establish his intent to kill the baby.
To summarize, in order for the jury to convict defendant of the attempted murder of the baby, it had to find, beyond a reasonable doubt, that he acted with intent to kill that victim, i.e., that he purposefully shot into the vehicle with "a deliberate intent to unlawfully take away [the baby's] life" (People v. Lasko, supra, 23 Cal.4th at p. 104, 96 Cal.Rptr.2d 441, 999 P.2d 666) or knowledge that his act of shooting into the vehicle would, "`"to a substantial certainty,"'" result in the baby's death. (People v. Davenport, supra, 41 Cal.3d at p. 262, 221 Cal.Rptr. 794, 710 P.2d 861.) There was no further requirement that a separate, or indeed any motive, be shown for his act of shooting at the baby in order to find that he acted with express malice. (CALJIC No. 2.51.) No minimal period of time for reflection had to be shown in order to establish defendant's criminal state of mind, nor was the prosecution seeking a special jury finding that this attempted murder was "willful, deliberate, and premeditated." (§ 664, subd. (a).) Under the case law surveyed above, evidence that defendant purposefully discharged a lethal firearm at the victims, both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire, can support an inference that he acted with intent to kill both. (People v. Lee, supra, 43 Cal.3d at p. 679, 238 Cal.Rptr. 406, 738 P.2d 752; People v. Villegas, supra, 92 Cal.App.4th at pp. 1224-1225, 113 Cal.Rptr.2d 1; Chinchilla, supra, 52 Cal.App.4th at p. 690, 60 Cal.Rptr.2d 761; People v. Lashley, supra, 1 Cal.App.4th at p. 946, 2 Cal.Rptr.2d 629.) And even if defendant's act of shooting at the baby was done "without advance consideration and only to eliminate a momentary obstacle or annoyance," the jury could still infer, from the totality of the circumstances, that he acted with express malice toward that victim. (People v. Arias, supra, 13 Cal.4th at p. 162, 51 Cal.Rptr.2d 770, 913 P.2d 980.)
On these facts, we conclude a rational jury could find beyond a reasonable doubt that defendant intended to kill the baby as well as the mother. Defendant suggests in his brief on the merits that "there was no proof of [his] animus toward the baby." But his very act of discharging a firearm into the car from close range and narrowly missing both mother and baby could itself support such an inference. Indeed, given defendant's claim at trial that Karen was his ex-girlfriend, and given the circumstance that she had just arrived on the scene with a new boyfriend and their baby, the jury could well have inferred that defendant felt "animus" toward both the mother and her baby when he started shooting. In any event, even if defendant subjectively believed he had a particular reason or cause to shoot at the mother, that does not preclude a finding that he also harbored express malice toward the baby when he fired into the vehicle with both victims directly in his line of fire. Defendant's assertion on appeal that his motive to kill Karen but not the baby establishes his intent to kill her but precludes a finding that he also harbored express malice toward the baby is without support in the facts or the law.
Defendant further argues that "[he] fired from a point very near the car, and thus a `high potential for accuracy' existed." He asks this court to infer from that circumstance that "the fact that the baby was not hit, under such conditions of accuracy, tends to prove the baby was not a target." In light of the deferential standard of review that applies to this sufficiency of evidence claim, we must reject his interpretation of the evidence.
Did the fact that defendant fired a single bullet at the victims as a matter of law *172 preclude his conviction for the attempted murders of both Karen and the baby? The decision in Chinchilla, supra, 52 Cal.App.4th 683, 60 Cal.Rptr.2d 761, on which the Court of Appeal below relied, is directly on point. The Chinchilla court affirmed two convictions of attempted murder based on the firing of a single bullet at two police officers who were crouched, one behind the other, in the shooter's line of fire. The court held that "intent to kill two different victims can be inferred from evidence that the defendant fired a single shot at the two victims, both of whom were visible to the defendant." (Chinchilla, supra, 52 Cal.App.4th at p. 685, 60 Cal.Rptr.2d 761.)
The Chinchilla court placed principal reliance on People v. Lashley, supra, 1 Cal.App.4th 938, 2 Cal.Rptr.2d 629, quoted above, for the propositions that intent to kill usually must be inferred from a defendant's actions and all the circumstances surrounding the attempted killing; that the act of firing at a victim from close range in a manner that could have inflicted a mortal wound had the bullet been on target is itself sufficient to support an inference of intent to kill; that the fact that a shooter fires only once and then, out of necessity, abandons his efforts, does not compel the conclusion that he lacked the animus to kill in the first instance; and that the fact that the victim or victims may have escaped death due to the shooter's poor marksmanship does not necessarily establish a less culpable state of mind. (Chinchilla, supra, 52 Cal.App.4th at p. 690, 60 Cal.Rptr.2d 761; People v. Lashley, supra, 1 Cal.App.4th at pp. 945-946, 2 Cal.Rptr.2d 629.) The court explained: "Where a defendant fires at two officers, one of whom is crouched in front of the other, the defendant endangers the lives of both officers and a reasonable jury could infer from this that the defendant intended to kill both." (Chinchilla, supra, 52 Cal.App.4th at p. 691, 60 Cal.Rptr.2d 761.)
In reviewing sufficiency of evidence claims, each case of necessity must turn on its own particular facts. (People v. Thomas (1992) 2 Cal.4th 489, 516, 7 Cal.Rptr.2d 199, 828 P.2d 101; People v. Chambers (1982) 136 Cal.App.3d 444, 455, 186 Cal.Rptr. 306.) As we read Chinchilla, supra, 52 Cal.App.4th 683, 60 Cal.Rptr.2d 761, the court in that case expressly acknowledged the controlling principles set forth in People v. Lashley, supra, 1 Cal.App.4th 938, 2 Cal.Rptr.2d 629, and in affirming both attempted murder convictions, refused to invade the province of the jury that had reasonably invoked those principles in finding that the defendant intended to kill both officers when he saw them both, crouched one behind the other directly in his line of fire, and fired at them. (Chinchilla, supra, 52 Cal.App.4th at p. 691, 60 Cal.Rptr.2d 761.) The fact that the defendant in Chinchilla, for whatever reason, fired only a single shot was not dispositive.
In urging the Court of Appeal to reverse his conviction of the attempted murder of the baby on grounds of insufficient evidence, defendant asserted that this court's opinion in Additional Information