Brief Bank # B-798 (Re: F 17.02 n9 [Multiple Counts: Whether Single Act Can Constitute Multiple Counts Of Attempted Murder].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
__________________________________/
OPENING BRIEF OF APPELLANT JOHN DOE
Appeal From Final Judgment of Conviction
Superior Court, County of Contra Costa
The Honorable Richard E. Arnason
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By appointment of the Court of Appeal
(First District Appellate Project – Assisted Case)
II. THE EVIDENCE IS INSUFFICIENT TO SUPPORT CONVICTION ON COUNTS 1 AND 2 SIMULTANEOUSLY, BECAUSE THERE IS NO SUBSTANTIAL EVIDENCE APPELLANT SHOT AT BOTH ZALEC AND ROCHE AT THE SAME TIME; UNDER THE CIRCUMSTANCES, THE CONVICTION AS TO COUNT 1 SHOULD BE REVERSED
The evidence as to Counts 1 and 2 is at best fragmentary and contradictory, and turns out to be physically impossible to support both convictions, because there is no possible version of the evidence by which appellant can have been trying to kill both Zalec and his passenger Roche. One of the two convictions must thus be reversed.
Appellant assumes this Court has only reached this Part because it has rejected the arguments in Part I. Even so, the convictions as to Counts 1 and 2 cannot stand simultaneously.
In arguing insufficiency of evidence, appellant takes all evidence most favorably to the judgment. (People v. Johnson, supra, 26 Cal.3d at pp. 576-579.) The judgment can only be supported if there is “substantial evidence,” i.e., evidence of “ponderable legal significance” which is “reasonable, credible, and of solid value [which is] ‘substantial’ proof of the essential elements of the case.” (Newman v. State Personnel Board, supra, 10 Cal.App.4th at p. 47.) A court reviews the entire record, not isolated bits and pieces in favor of conviction, to determine whether there is substantial evidence. (People v. Johnson, supra, 26 Cal.3d at pp. 577-578.)
To begin with, Zalec only testified he assumed appellant was shooting at him (RT 144-145, 161), but nothing more. Assumption is not substantial evidence. (People v. Morris, supra, 46 Cal.3d at p. 21.) Count 1 should be reversed for that reason alone.
There is a second reason the two convictions cannot stand simultaneously, which requires that appellant briefly review what the testimony of Zalec and Roche have in common, and where they differ. Zalec was driving a police car, and Roche was his passenger. (RT 136, 167.)
Zalec and Roche agreed that the only shots fired at their car were the 3-4 shots which were simultaneous with the van’s rear window shattering. (RT 159-161, 186.) These shots were fired one right after the other. (Id.) Very importantly, both Zalec and Roche agreed that appellant’s arm never moved at all. (RT 162, 172.)
The two differed, however, on whom they thought appellant was shooting at. Zalec said appellant was looking at him, and he assumed appellant was shooting at him. (RT 143-145, 161.) Roche said appellant pointed his gun at her and was looking directly at her. (RT 169-172, 185.)
Appellant would ask this Court to step back, visualize the situation, and try to harmonize these two accounts.
It is impossible.
Since both officers agreed appellant never moved his arm, the question becomes: Where was his arm really pointing, and where was he aiming? There is no answer that can preserve both convictions. Zalec thought appellant was aiming at him; Roche thought appellant was aiming at her. But with one driver in the driver’s seat and one passenger in the passenger’s seat, and appellant’s arm kept immobile from both accounts, both sets of facts cannot coexist.
This Court on review can pick the version of the substantial evidence most favorable to the People, and can also take some substantial evidence from one witness and some from another. However, it can’t create multiple versions of the facts at the same time. Rather, the whole record, not just bits and pieces favorable to the People, must be reviewed on a sufficiency claim. If appellant was trying to kill one officer with his immobile arm pointing a gun at that officer, he can’t simultaneously have been pointing a gun at the other officer on the other side of the car.
None of this is to suggest any dishonesty by the officers. The situation was tense, with appellant firing shots out his window in a high-speed chase. Both officers would have feared for their safety in this dangerous situation. Both saw appellant from 50 feet away; Zalec was also trying to drive, and had a hard time seeing inside the van. (RT 161.) It may be natural that each officer thought appellant was trying to shoot at him/her. But no more than one can be correct.
One could cite caselaw which says two inherently contradictory propositions cannot both be substantial evidence. (People v. Bassett (1968) 69 Cal.2d 122, 148.) One could also cite caselaw which says evidence that is physically impossible or defies reality is not substantial evidence. (People v. Headlee (1941) 18 Cal.2d 266, 267-268; People v. Carvalho (1952) 112 Cal.App.2d 482, 489.) Appellant here does both. But his point is also much more basic: Whatever the factual reality was, it is incompatible with guilt on both Counts 1 and 2.
When it is impossible based on the evidence for the defendant to have intended to commit two different crimes at the same time, a conviction for one must be reversed for want of sufficient evidence. (People v. Koehn (1929) 207 Cal. 605, 611-613; People v. Womack (1995) ___ Cal.App.4th ___ [47 Cal.Rptr.2d 76, 79-80] [no petition for review filed].) That is so here.
The situation would be very different had appellant been convicted of assault with a firearm, not attempted murder. It would then suffice that appellant was shooting somewhere toward the officers’ car. He wouldn’t have to shoot at anyone in particular, shooting in their direction would suffice. (See, e.g., People v. Spence, supra, 3 Cal.App.3d at p. 604; People v. Ingram, supra, 91 Cal.App.2d at p. 914.) The intent required for assault is general intent, intentional commission of an act that by its nature would likely produce a battery. (People v. Colantuono (1994) 7 Cal.4th 206, 214.) Shooting toward a fast-moving car is such an act.
Counts 1 and 2, however, were for attempted murder, which requires the specific intent to kill. (People v. Lee (1987) 43 Cal.3d 666, 670.) If one assumed appellant was firing at the driver, that would not have been substantial evidence of specific intent to kill the passenger. (It might create a possibility the car would run out of control, creating a risk of injury and perhaps a speculative risk of death, but there is no such thing as attempted implied malice murder. (Id.)) If one assumed appellant was firing at the passenger, that would not show specific intent to kill the driver. The evidence does not support a conclusion that both happened at the same time. (See People v. Womack, supra, ___ Cal.App.4th at p. ___ [47 Cal.Rptr.2d at p. 80].)
Based on this record, and given that both convictions cannot stand together, it would seem the preferred alternative would be to reverse Count 1 and leave Count 2 intact. Roche at least provided testimony appellant pointed a gun at her. (RT 185.) By contrast, Zalec never said anything about appellant pointing a gun at him; he assumed appellant was shooting at him (RT 144), but never provided testimony which would turn the assumption into permissible inference. (See People v. Morris, supra, 46 Cal.3d at p. 21 [assumptions not substantial evidence].)
Whichever conviction should be reversed, however, one must. Conviction unsupported by evidence violates state law, and the Due Process Clause of the Fourteenth Amendment. (Jackson v. Virginia, supra, 443 U.S. at p. 323; People v. Johnson, supra, 26 Cal.3d at p. 577.) The judgment should be reversed as to Count 1, or alternatively Count 2. Retrial is barred by the state and federal Double Jeopardy Clauses. (Burks v. United States, supra; People v. Belton, supra.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant.
_________________________________/
REPLY BRIEF OF APPELLANT JOHN DOE
Appeal From Final Judgment of Conviction
Superior Court, County of Contra Costa
The Honorable Richard E. Arnason
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By appointment of the Court of Appeal
(First District Appellate Project – Assisted Case)
II. THE EVIDENCE IS INSUFFICIENT TO SUPPORT CONVICTION ON COUNTS 1 AND 2 SIMULTANEOUSLY, BECAUSE THERE IS NO SUBSTANTIAL EVIDENCE APPELLANT SHOT AT BOTH ZALEC AND ROCHE AT THE SAME TIME; UNDER THE CIRCUMSTANCES, THE CONVICTION AS TO COUNT 1 SHOULD BE REVERSED [AOB, Part II, Pages 13-15]
The People bury in a footnote (RB 17, fn. 19) the central fact in this Part: Both officers testified appellant’s arm was straight and didn’t move. (RT 162, 172; see AOB 13, bottom paragraph.) Respondent has engaged in “selective” (RB 16) quotations, in which the key passages showing this are omitted. The complete testimony is in the footnote below. It speaks for itself; both officers in fact testified appellant’s arm was straight and didn’t move. [Footnote1]
With that, most of the rest of the People’s discussion becomes moot. The angle of appellant’s head, or who was looking at whom, doesn’t overcome the complete contradiction in testimony as to where appellant was supposedly aiming. Nor does each officer’s perception of whom appellant was shooting at, a perception subject to error anyway given the distance and very difficult circumstances of the car chase. (See AOB 14.). If appellant’s arm was straight and not moving, it was physically impossible for him to have “shot at them both in general.” (RB 17.)
Respondent’s cases (RB 17) are obviously inapposite. Two involve evidence of a defendant aiming at the person he was convicted of attempting to kill (and other evidence of intent to kill). That cannot simultaneously be so as to both Zalec and Roche, on the state of this record. The third is a transferred intent case, which has nothing to do with the facts of this case.
The People do not contest the law that if it is impossible on the record for a defendant to have committed two crimes at the same time, a conviction for one or the other must be reversed for want of substantial evidence. (AOB 14-15.) [Footnote 2]
Finally, the People have not shown why Officer Zalec’s belief that appellant was shooting at him was based on anything more than assumption, which is not substantial evidence. The People’s argument is that “the prosecutor, not officer Zalec, used the term ‘assumption.'” (RB 16.) This claim is puzzling, since Officer Zalec answered the prosecutor’s question by stating his “assumption” in his own words: “[T]he person was shooting at me.” (RT 144.)
The People also misstate the record. They claim: “Officer Zalec indeed first testified that [appellant] was looking and pointing the gun ‘directly at me.'” (RB 16-17, citing RT 144.) What the transcript actually says is: “The driver was looking directly at me, and he had something in his hand,” though Zalec did not see what that “something” was. (RT 144:1-7.) Nowhere does the transcript say Zalec testified appellant “was . . . pointing the gun ‘directly at me.'”
Because a reviewing court must review the entire record and not isolated bits and pieces supporting conviction (People v. Johnson (1980) 26 Cal.3d 557, 577-578), the two convictions in Counts 1-2 cannot stand together, and one must be reversed for want of substantial evidence.
FOOTNOTES:
Footnote 1: As to Officer Zalec:
Q [By defense counsel] [Y]ou couldn’t say exactly where the weapon was pointed?
A [By Officer Zalec] The hand was perfectly straight. Whatever object was in the hand was in my direction.
Q In your general direction?
A Yeah. And, you know, I recall seeing a straight rigid arm, with no bends in either the elbow or the wrists. (RT 162:3-9.)
As to Officer Roche:
Q [By the prosecutor] Now, did you see any wavering of his arm or anything to indicate that he was just trying to scare you with the gun?
A [By Officer Roche] No.
Q [Did] it look like he was aiming the gun?
A Yes.
Q How would you describe him as he was doing that?
A Well, what stuck out in my mind, the whole incident, the fact that he had his right arm extended out and he was driving at a high rate of speed . . . . (RT 172:5-15.)
Footnote 2: When the AOB, a full citation to the Womack case was unavailable. The citation is People v. Womack (1995) 40 Cal.App.4th 926, 931-932.
