People v. Barnette

• Decision Date: 19 November 2018
• Docket Number: C079639
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. KENNETH W. BARNETTE, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. KENNETH W. BARNETTE, Defendant and Appellant.

C079639

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

November 19, 2018

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 13F04035)

Defendant Kenneth W. Barnette shot and killed Darryl Hill and shot at the vehicle occupied by some of Hill's family members. A jury convicted him of first degree murder, attempted murder, and shooting at an occupied vehicle. The trial court sentenced him to a determinate term of five years for shooting at an occupied vehicle, an indeterminate term of 25 years to life for murder, life with the possibility of parole for attempted murder, and two terms of 25 years to life for firearm enhancements.

On appeal, defendant contends:

(1) the trial court erred by not instructing the jury on the lesser included offense of voluntary manslaughter based on imperfect self-defense, sudden quarrel, and heat of passion;

(2) the trial court erred by denying defendant's motion for mistrial after some jurors witnessed an incident between defendant's family members outside the courtroom, and it abused its discretion by not investigating the circumstances of the incident; (3) the trial court erred by denying defendant's motions to substitute appointed counsel and by failing to hold a hearing outside the presence of the prosecutor as to one of defendant's complaints about defense counsel;

(4) defense counsel provided constitutionally ineffective assistance of counsel by failing to request a continuance to locate a potential defense witness;

(5) there was insufficient evidence to sustain defendant's conviction for attempted murder;

(6) there was insufficient evidence to sustain defendant's conviction for shooting at an occupied vehicle;

(7) an alternative theory of shooting at an occupied vehicle cannot be used to affirm the conviction because it was not presented to the jury; and

(8) remand is necessary so that the trial court can exercise its newly granted discretion concerning whether to strike two firearm-discharge enhancements.

Only the last contention has merit. We conclude:

(1) the evidence did not support instructions on voluntary manslaughter;

(2) the trial court adequately investigated the incident outside the courtroom and admonished the jury not to let it influence their verdicts;

(3) the trial court properly denied defendant's motions to substitute appointed counsel;

(4) defense counsel was not constitutionally ineffective for not requesting a continuance to locate a potential defense witness;

(5) sufficient evidence supported the attempted murder conviction;

(6) sufficient evidence supported the conviction for shooting at an occupied vehicle;

(7) reliance on an alternative theory of shooting at an occupied vehicle was unnecessary on the facts of this case; and (8) remand is necessary to allow the trial court to exercise its newly granted discretion concerning whether to strike or dismiss the firearm-discharge enhancements.

We will remand the matter to permit the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h),¹ as recently amended. In all other respects, we will affirm the judgment.

BACKGROUND

Because defendant does not raise issues on appeal relating to his identification as the shooter, we need not recount facts and investigation concerning his identification.

On June 15, 2013, Maurion C. drove a white Volkswagen Jetta to an AM/PM store and gas station on Mack Road in Sacramento. His uncle, Darryl Hill, was in the front passenger seat. In the backseat were Maurion's brother, Marquis C., as well as Maurion's 18-month-old daughter. The three men were all in their early twenties. All gas pumps were being used, so they waited for a pump to open up. When one did, Maurion drove toward the gas pump and turned around to back into position at the pump. As he was backing into position, a silver Infiniti driven by defendant began backing toward the pump, blocking Maurion from completing the maneuver into place at the pump. Maurion honked at the Infiniti, but neither car moved.

Hill got out of the Jetta, telling the others in the car that he was going to ask the driver of the silver Infiniti to move, and walked around the back of the Infiniti, approaching the driver's side of that car. As Hill approached, he gestured with his hand. Defendant said, "Why are you walking up on my car?" or "Why are you walking up on me?" He got out of the Infiniti and fired a handgun at Hill and at the Jetta six times. Immediately after firing the gun, defendant reentered the Infiniti and drove away.

Hill, who was five feet eight inches tall and weighed 189 pounds, suffered five gunshot wounds, two of which could have been caused by the same bullet. He died on the scene, and his death was caused by multiple gunshots to the left chest and abdomen. Maurion C., in the driver's seat of the Jetta, was shot in the left arm. Marquis C., in the back seat of the Jetta, was hit in the left hand.

People's Exhibit No. 30, a DVD, contains a surveillance camera recording of the homicide. In the video recording, the Jetta and the Infiniti both pull in front of the AM/PM store. The Jetta is in a parking space facing away from the store and toward the pumps, while the Infiniti is in a marked walkway facing toward the store. After a vehicle leaves the gas pumps, the Jetta moves forward in the direction of the gas pumps but turns to back into position at a pump. As the Jetta starts to back up, the Infiniti backs up towards the gas pump and appears to block the Jetta from completing its positioning at the pump. After both cars have been stopped for about eight seconds, Hill exits the front passenger door of the Jetta and, going in front of the Jetta and in back of the Infiniti, walks toward the driver's side of the Infiniti. As defendant exits the driver's seat of the Infiniti, Hill gestures sideways and back toward the back of the Infiniti. The men appear to be about four or five feet apart. As Hill stands with his hands down at his side, defendant moves laterally away from the Infiniti, raises his right hand, and begins shooting in Hill's direction. Hill turns and tries to flee but almost immediately falls to the ground. At the point in the recording when defendant begins shooting, after he has moved laterally away from the Infiniti, both Hill and the Jetta are in the same line of fire. After shooting, defendant reenters the Infiniti and drives away.

An audio recording of the event is also found on People's Exhibit 30. In it, some honking is heard, followed by six gunshots.

The district attorney charged defendant by information with murder of Darryl Hill (§ 187, subd. (a) -- count one); shooting at an occupied vehicle (§ 246 -- count two); attempted murder of Marquis C. (§§ 187, subd. (a), 664 -- count three); and attemptedmurder of Maurion C. (§§ 187, subd. (a), 664 -- count four). As to each count, the information alleged defendant discharged a firearm causing death or great bodily injury. (§ 12022.53, subd. (d).)

A jury convicted defendant of the murder of Hill (count one), the shooting at an occupied vehicle (count two), and the attempted murder of Maurion C. (count four). As to each of these three counts, the jury found true the firearm-discharge allegation. The jury acquitted defendant of the attempted murder of Marquis C. (count three).

The trial court sentenced defendant to a determinate five-year term (the middle term) for shooting at an occupied vehicle. It also sentenced defendant to an indeterminate term consisting of 25 years to life for the murder, life with the possibility of parole for attempted murder, and two terms of 25 years to life for the firearm discharge enhancements associated with the murder and attempted murder. Each of the terms were imposed consecutively, resulting in an aggregate term of five years, plus 82 years to life. The trial court concluded that the firearm-discharge enhancement was inapplicable to shooting at an occupied vehicle.

DISCUSSION

I

Defendant contends the trial court erred by (A) rejecting his request for voluntary manslaughter instructions based on the theory of imperfect self-defense (CALCRIM Nos. 571, 580), and (B) not instructing sua sponte on voluntary manslaughter based on a sudden quarrel or heat of passion (CALCRIM No. 570).

"[A] trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. [Citation.] It is error for a trial court not to instruct on a lesser included offense when the evidence raises a question whether all of the elements of the charged offense were present, and the question is substantial enough to merit consideration by the jury. [Citation.] When there is no evidence the offense committed was less than that charged, the trial court is not required to instruct on thelesser included offense. [Citation.] Voluntary manslaughter is a lesser included offense of murder. [Citation.] [¶] On appeal, we review independently whether the trial court erred in failing to instruct on a lesser included offense. [Citation.]" (People v. Booker (2011) 51 Cal.4th 141, 181 (Booker).)

A

"Imperfect self-defense is the killing of another human being under the actual but unreasonable belief that the killer was in imminent danger of death or great bodily injury. [Citation.] Such a killing is deemed to be without malice and thus cannot be murder. [Citation.]" (Booker, supra, 51 Cal.4th at p. 182.) To justify the instruction on imperfect self-defense, there must be substantial evidence the defendant actually believed he must defend himself from imminent danger of death or great bodily...