People v. Palmer

Opinion

I.

INTRODUCTION

Defendant and appellant Ralph Carl Palmer committed an armed robbery of a Stein Mart store. As Palmer was attempting to drive from the crime scene, La Verne Police Officer Michael Burks stopped Palmer in the store parking lot. As Burks was exiting his patrol vehicle, Palmer suddenly exited his car, swiveled around, and shot at Burks. Burks dove for cover behind his patrol vehicle’s door, breaking his ankle in the process. A jury convicted Palmer of second degree robbery, attempted murder, and assault on a peace officer with a semiautomatic firearm. It also found true allegations that Palmer personally and intentionally used and discharged a firearm during commission of the attempted murder and assault, proximately causing great

B. Procedure.

Trial was by jury. Palmer was convicted of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)); assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2)); and three counts of second degree robbery (§ 211). The jury further found true allegations that Palmer attempted to murder a peace officer engaged in the performance of his duties; personally and intentionally used and discharged a firearm during commission of the attempted murder and assault, proximately causing great bodily injury (§ 12022.53, subds. (b), (c), (d)); and personally used a firearm during commission of the robberies (§ 12022.53, subd. (b)). In a bifurcated proceeding, the trial court found true allegations that Palmer had suffered three prior serious or violent felonies (§§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The trial court sentenced Palmer to a term of 155 years to life in prison, and imposed a $10,000 restitution fine and a stayed parole revocation fine in the same amount. Palmer appeals.

DISCUSSION

A. Issues related to the section 12022.53, subdivision (d) enhancements.

As noted, Palmer’s sentence was enhanced as a result of the jury’s findings that he personally discharged a firearm, proximately causing great bodily injury to Officer Burks. Palmer challenges the jury’s true findings on the section 12022.53, subdivision (d) enhancements on several bases. The premise underlying each of Palmer’s claims is that Officer Burks dove for cover and broke his ankle in response to Palmer’s act of pointing the gun, not discharging the gun. Therefore, he urges, the discharge was not a proximate cause of Burks’s injury within the meaning of section 12022.53, subdivision (d). He also asserts that section 12022.53, subdivision (d) only applies when the victim’s injury is “proximately caused by a discharged bullet,” not when the injury was caused by the victim’s evasive action. We reject Palmer’s contentions.

1. Section 12022.53, subdivision (d)’s proximate cause and injury requirements.

Section 12022.53, also known as the “10-20-life” law (Assem. Bill No. 4 (1997-1998 Reg. Sess.)), was enacted in 1997 to substantially increase

“In construing a statute, our task is to determine the Legislature’s intent and purpose for the enactment. [Citation.] We look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity in the statutory language, its plain meaning controls; we presume the Legislature meant what it said. [Citation.] ‘However, if the statutory language permits more than one reasonable interpretation, courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute.’ [Citations.]” (People v. Garcia, supra, 28 Cal.4th at p. 1172; see also, e.g., People v. Leal (2004) 33 Cal.4th 999 , 1007 [ 16 Cal.Rptr.3d 869 , 94 P.3d 1071 ]; People v. Lopez (2003) 31 Cal.4th 1051 , 1056 [ 6 Cal.Rptr.3d 432 , 79 P.3d 548 ]; People v. Tapia (2005) 129 Cal.App.4th 1153 , 1160-1161 [ 29 Cal.Rptr.3d 158 ].) We examine the statutory language in the context in which it appears, and adopt the construction that best harmonizes the statute internally and with related statutes. (People v. Jefferson (1999) 21 Cal.4th 86 , 94 [ 86 Cal.Rptr.2d 893 , 980 P.2d 441 ]; People v. Tapia, supra, at p. 1161.)

The parties do not dispute that for the section 12022.53, subdivision (d) enhancement to apply, the discharge of the firearm must be the proximate cause of the victim’s injury. We agree. Subdivision (d) 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

The California Supreme Court disagreed with the Court of Appeal, reasoning as follows. “Section 12022.53(d) requires that the defendant ‘intentionally and personally discharged a firearm’ . . . but only that he ‘proximately caused’ the great bodily injury or death. The jury, properly instructed, reasonably found that defendant did personally discharge a firearm. The statute states nothing else that defendant must personally do. Proximately causing and personally inflicting harm are two different things.” (People v. Bland, supra, 28 Cal.4th at p. 336.) Personally inflicting an injury means to directly cause an injury, not to proximately cause it. (Id. at p. 337.) “The Legislature is aware of the difference. When it wants to require personal infliction, it says so. [Citation.] When it wants to require something else, such as proximate causation, it says so, as in section 12022.53(d).” (Id. at p. 336.) Bland cited People v. Cole (1982) 31 Cal.3d 568 , 571 [ 183 Cal.Rptr. 350 , 645 P.2d 1182 ], for the “obvious” proposition that “ ‘an individual can and often does proximately cause injury without personally inflicting that in jury.’ ” (People v. Bland, supra, 28 Cal.4th at p. 337.) The Bland defendant’s discharge of his firearm may have been a proximate cause of the victims’ injuries, even though it may have been his cohort’s bullets that hit the victims. (Id. at pp. 337-338.)

In the instant case, of course, the victim’s injury was not a gunshot wound, but a broken ankle suffered when he attempted to avoid being shot. Nevertheless, Bland’s reasoning directly informs our analysis. Bland made clear that section 12022.53, subdivision (d) does not require the defendant personally inflict the injury. Bland teaches that, as long as the injury was proximately caused by the discharge of the firearm, the statute’s requirements are met. Put differently, the defendant’s discharge of a firearm may be the proximate cause of a victim’s injury, even if the defendant’s bullet does not

Nothing in the statutory language or legislative history suggests a different conclusion. To the contrary, both support our analysis. The legislative purpose behind the statute is unambiguous: to impose “ ‘substantially longer prison sentences ... on felons who use firearms in the commission of their crimes, in order to protect our citizens and to deter violent crime.’ [Citation.]” (People v. Garcia, supra, 28 Cal.4th at p. 1172, quoting Stats. 1997, ch. 503, § 1; see People v. Oates, supra, 32 Cal.4th at p. 1057; People v. Martinez, supra, 76 Cal.App.4th at p. 493; People v. Mason (2002) 96 Cal.App.4th 1 , 12 [ 115 Cal.Rptr.2d 359 ].) “In the case of subdivision (d) . . . the statute’s purpose quite specifically is to deter persons from inflicting great bodily injury or death through the intentional discharge of firearms in the commission of such felonies . . . .” (People v. Hutchins (2001) 90 Cal.App.4th 1308 , 1314 [ 109 Cal.Rptr.2d 643 ].) “The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives. [Citations.]” (People v. Martinez, supra, at pp. 497-498.)

The Legislative purpose to protect citizens from injury and deter violent crime would not be furthered if subdivision (d) was interpreted to encompass only bullet wounds. It is surely to be expected that persons attempting to dodge a bullet may react in panic with evasive maneuvers that are likely to cause injury to themselves or others. There appears to be no principled reason to distinguish the type of injury here—suffered when the victim took life-saving evasive action—from a direct hit by the bullet. Both are equally caused by the discharge of the firearm. In both instances, the defendant’s culpability is the same. A defendant should not benefit simply because he or she is a bad shot, or because the victim is fortuitously able to move out of harm’s way.

Moreover, the plain language of the statute supports our conclusion. Had the Legislature wished to limit section 12022.53, subdivision (d)’s reach to gunshot wounds only, it certainly could have said so. Instead, it used the phrase “great bodily injury,” which on its face does not narrow the statute’s reach to gunshot wounds. Further, the existence of the proximate cause requirement supports the conclusion that other injuries qualify to impose the enhancement. Had the Legislature intended the statute to encompass only gunshot wounds, the proximate cause requirement would have been unnecessary. If the victim is hit by the defendant’s gunshot, the discharge would necessarily be the actual cause of the injury, and the proximate cause

In sum, the plain language of the statute, as well as its underlying purpose, supports the conclusion that section 12022.53, subdivision (d) encompasses any injury, not just bullet wounds, when the defendant’s discharge of a firearm was the proximate cause of the injury.

2. The evidence was sufficient to support the jury’s true findings on the section 12022.53, subdivision (d) enhancements.

We next turn to the question of whether the evidence was sufficient to establish Palmer’s gunshot was the proximate cause of Officer Burks’s broken ankle. Palmer argues the evidence was insufficient, because Burks dove for cover when Palmer pointed the gun at Burks, not when Palmer actually discharged the gun. Again, we disagree.

When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine “ ‘whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Hillhouse (2002) 27 Cal.4th 469 , 496 [ 117 Cal.Rptr.2d 45 , 40 P.3d 754 ]; see People v. Carter (2005) 36 Cal.4th 1215 , 1257-1258 [ 32 Cal.Rptr.3d 838 , 117 P.3d 544 ].) “We draw all reasonable inferences in support of the judgment. [Citation.]” (People v. Wader (1993) 5 Cal.4th 610 , 640 [ 20 Cal.Rptr.2d 788 , 854 P.2d 80 ].) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297 , 331 [ 75 Cal.Rptr.2d 412 , 956 P.2d 374 ].)

Here, the evidence was sufficient to establish Burks’s injury was the result of Palmer’s discharge of the firearm, rather than a distinct act of pointing the gun. Burks testified that he received the dispatch informing him of the robbery; observed Palmer and radioed his observations to the dispatcher; and

Palmer’s argument rests upon the premise that the “discharge” of a firearm refers only to the instant the firearm’s trigger is actually pulled. Palmer’s interpretation of the statute is unduly crabbed. We see nothing in the statutory language that so limits the meaning of “discharge” as applied to the facts of this case, nor does Palmer cite any authority so limiting the term. The evidence recited above showed Palmer exited his vehicle and immediately turned, pointed the gun, and fired, all in one essentially seamless motion. The most reasonable interpretation of this evidence was that Palmer’s conduct of pulling out and pointing the gun, and pulling the trigger, all constituted a single act of “discharging” the gun for purposes of the statute. This was not a case in which the defendant pointed a gun for some distinct and significant period of time without firing, impelling the victim to dive for cover merely in response to the pointing of the gun. Palmer’s attempt to artificially compartmentalize the circumstances of the shooting is unpersuasive.

We do not disagree with Palmer that, had he pointed the gun at Burks for some significant length of time before firing it, and Burks’s injury occurred during that period, before the gunshot, the proximate cause requirement would not be established. It is axiomatic that X cannot be a proximate cause of Y if Y has already occurred before X. As People v. Bland explained, “Even if the jurors did not know exactly what proximate causation means, no juror who is conversant in the English language would find that discharging a firearm proximately caused injuries that had already occurred.” (People v. Bland, supra, 28 Cal.4th at p. 338.) However, on the evidence presented here, the jury could reasonably find that Palmer’s conduct of exiting the car,

Because CALJIC No. 17.19.5 was an accurate statement of the law, we agree with the People that. Palmer’s claim is waived. It is of course true that a defendant need not object to preserve a challenge to an instruction that incorrectly states the law and affects his or her substantial rights. (§ 1259; People v. Hillhouse, supra, 27 Cal.4th at pp. 505-506; People v. Smithey (1999) 20 Cal.4th 936 , 976, fn. 7 [ 86 Cal.Rptr.2d 243 , 978 P.2d 1171 ].) On the other hand, “ ‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Guiuan (1998) 18 Cal.4th 558 , 570 [ 76 Cal.Rptr.2d 239 , 957 P.2d 928 ]; see People v. Spurlock (2003) 114 Cal.App.4th 1122 , 1130 [ 8 Cal.Rptr.3d 372 ].) However, because Palmer argues that his trial counsel was ineffective for failing to object to the instruction or request a clarifying instruction, we address his claim.

Palmer argues that CALJIC No. 17.19.5 is flawed because it “failed to advise the jury that the injury suffered [by] Burks had to be proximately caused by the discharge of a firearm and not just proximately caused by appellant’s actions.” He complains that the instruction “presents two seemingly independent elements; (a) the defendant discharges a firearm; and (b) the defendant proximately causes great bodily injury.”

When reviewing a purportedly ambiguous jury instruction, we ask whether there is a reasonable likelihood the jury misconstrued or misapplied the challenged instruction. (People v. Harrison (2005) 35 Cal.4th 208 , 251-252 [ 25 Cal.Rptr.3d 224 ]; People v. Smithey, supra, 20 Cal.4th at p. 963; People v. Welch (1999) 20 Cal.4th 701 , 766 [ 85 Cal.Rptr.2d 203 , 976 P.2d 754 ]; People v. Clair (1992) 2 Cal.4th 629 , 663 [ 7 Cal.Rptr.2d 564 , 828 P.2d 705 ].)

4. Trial counsel was not ineffective for failing to argue the absence of proximate cause.

In a third related argument, Palmer urges that his trial counsel was ineffective for failing to advance the theory that the gunshot was not the proximate cause of Burks’s broken ankle, both by failing to argue in closing that there was no evidence the discharge proximately caused the injury, and by failing to object to or request modification of CALJIC No. 17.19.5. We disagree.

“In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]” (People v. Carter (2003) 30 Cal.4th 1166 , 1211 [ 135 Cal.Rptr.2d 553 , 70 P.3d 981 ]; see Strickland v. Washington (1984) 466 U.S. 668 , 694 [ 80 L.Ed.2d 674 , 104 S.Ct. 2052 ].) If the defendant makes an insufficient showing on either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619 , 703 [ 63 Cal.Rptr.2d 782 , 937 P.2d 213 ].) “If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.” (People v. Carter, supra, at p. 1211; see People v. Mendoza Tello (1997) 15 Cal.4th 264 , 266-267 [ 62 Cal.Rptr.2d 437 , 933 P.2d 1134 ].) “A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter, supra, at p. 1211.)

Palmer has not met this burden. He has not shown that defense counsel was asked for an explanation but failed to provide one. The record before us does not suggest counsel’s performance was obviously inadequate, or that there could be no satisfactory explanation for his failure to argue the theory