People v. Custer
| Decision Date | 12 October 2021 |
| Docket Number | C089875 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JUSTIN DEWAIN CUSTER, Defendant and Appellant. |
NOT TO BE PUBLISHED
Rejecting theories of self-defense and defense of others, a jury convicted defendant Justin Dewain Custer of attempted murder discharging a firearm at an occupied motor vehicle, shooting a firearm in a grossly negligent manner, and assault with a semiautomatic firearm. The jury further found that defendant personally used a firearm, personally used and intentionally discharged a firearm, and personally used and intentionally discharged a firearm causing great bodily injury. The trial court sentenced defendant to an aggregate term of 32 years to life in state prison.
Defendant now contends (1) the trial court abused its discretion and violated due process principles by limiting his ability to present evidence of the victim's acts of violence; (2) trial counsel was ineffective when failing to request the jury be instructed that it could consider the victim's reputation and character for violence; (3) the trial court violated defendant's constitutional rights when it instructed the jury with CALCRIM No. 3472 (Right to Self-Defense: May Not Be Contrived), as the instruction was “not relevant given the facts presented at trial” and “reduced the prosecution's burden of proof”; (4) trial counsel was ineffective by presenting a closing argument that was “almost entirely premised on a factual error”; and (5) remand is necessary to allow the trial court to consider imposing a lesser firearm enhancement in lieu of the enhancement imposed for personally and intentionally discharging a firearm causing great bodily injury.
We will affirm.
In April 2017, defendant and Manuel Anthony Penna had been close friends for several years, and defendant knew Penna as a family friend of more than 20 years. The two socialized often, and worked on cars together, sometimes at defendant's home.
Defendant's home was on Lerwick Road, though at the time of the shooting defendant was staying with his friend and neighbor, Dustin Brown, on Lerwick Road. Penna often stayed at his mother's house also on Lerwick Road, about 11 houses away.
In early April 2017, Penna traded a firearm for Brown's car a Mustang. Penna remarked to Brown that he felt “naked” without the gun he traded, and Brown replied that he would give Penna the chance to buy the “next gun” that Brown obtained.
Later defendant showed a.40-caliber Smith & Wesson gun to Penna, who expressed interest in it. But because Penna didn't have enough money to buy the gun directly from Brown, Brown and defendant “worked it out” so that defendant obtained the gun from Brown, and then gave it to Penna in exchange for $200 and various items, including a signed San Francisco 49ers football.
Four or five days later, Penna learned that defendant “need[ed] the gun back.” Penna “got upset at” defendant.
Penna testified that on the day of the shooting, about a week after learning that defendant wanted the gun back, Penna was in his mother's garage playing videogames with a friend when defendant walked into the garage, and said that he could see “all the way down to” Penna's mother's house with a “new scope for [a] rifle” that defendant recently acquired. Penna replied: “What the fuck are you talking about, dude, you can see all the way down?” “What are you staring at my house with a scope for?”
Defendant responded: Defendant then inquired about the gun Penna obtained from him, and Penna replied: “I'm not trading back with you.” “[A] deal is a deal.”
Defendant got mad and said, “Remember what I said about that scope.” Penna replied: “Motherfucker, you come down to my mom's house and threaten me at my mom's house?” Defendant “took off running to his car, [and] [Penna] took off chasing him.” Defendant got in his car, and Penna tried to open the door. Defendant “turn[ed] the wheel to where the car hit[] [Penna]... [¶]... and... stop[ped] on [Penna's] foot.” Penna twice told defendant that the car was on his foot, but defendant “didn't move the car, so [Penna]... knocked the glass out” of the driver's side front window with his hand. Defendant drove away down the street “about two or three cars, turn[ed] around, ” and “pull[ed] [a] gun” out, “just point[ing] and look[ing] at” Penna, and left.
Penna changed his clothes and agreed with his friend they should leave his mother's house. Penna's friend left in her own car, as she had “things that she was going to do, ” and Penna was “probably... just going to go for a ride and smoke a cigarette.” As Penna drove by defendant's home in his Mustang (which Penna explained was “loud” because the “exhaust [was] cut off”), he saw defendant's wife outside with a broom and dustpan and felt bad that he broke her car window. He also saw defendant.
When Penna heard “the first pop, ” he thought it came from his car. But then he heard “pop, pop, pop, pop, pop...” and realized that someone was shooting at him. He did not see defendant shoot at him or hear defendant say anything. He looked in the rearview mirror, and saw a bullet in his face.
Penna said he did not possess a gun at the time of the shooting.
Penna admitted that he suffered felony convictions in 1999, 2003, 2006, and 2009. On cross-examination, he admitted (i) his 1999 conviction was for assault with a deadly weapon, and that he went to prison for the offense, and (ii) his 2006 and 2009 convictions were for being an “ex-felon with a gun.”
Also on cross-examination, Penna denied ever assaulting defendant's wife.
Moments before defendant fired his gun at Penna, a man who lived across the street, got in his truck to get gas. The truck was in a driveway and facing the street. The man described to the jury what he saw through his windshield:
Under further questioning, the man explained that when he said defendant was “following the car with his hands, ” he meant “shooting at the car.” The car defendant was shooting at was moving from the man's right to his left, as he sat in his truck.
The shooting was captured on video cameras mounted next door to the testifying eyewitness's home. The videos show a duplex, with two cars parked in the driveway. The garage door on the right is closed, and the garage door on the left (corresponding to Brown's home) is half-open. Penna's friend's car drives past the duplex at 19:33:07, and defendant emerges from Brown's garage seven seconds later, stands by the garage door for about five seconds, and then goes back inside at 19:33:19. At 19:33:30, defendant emerges from the garage for the second time, and crouches/kneels between the garage door and a parked car. At 19:33:36, defendant stands up and begins firing his gun at Penna's car as it drives by, firing the last shot at 19:33:39.
Taking the stand in his own defense, defendant testified that his relationship with Penna took a negative turn when, beginning about two weeks before the shooting, Penna's girlfriend came to defendant's home with “black[]... eyes” and a broken nose inflicted by Penna, and a short time later, Penna struck defendant's wife (and mother of his two children) with a pistol, “completely split[ting] in half” one of her lips, and threatened to kill her.
Penna assaulted defendant's wife when she confronted Penna about his inoperable car that had been parked in front of defendant's home for “months, ” generating several “code-enforcement complaints that went to [defendant's] landlord” and “came back to” defendant. Defendant's wife declined to seek medical attention for her injuries, because “it would [have] put [them] in more danger” with Penna, but she asked defendant: “What else has to happen... for you to do something?” Defendant began to fear Penna.
On the day of the shooting, defendant went to Penna's mother's house and knocked on the garage door, which was slightly open, and asked Penna to come outside to talk about the car in defendant's driveway. Defendant wanted to “get the car moved because [he] had a three-day notice that if the car wasn't... moved, [his family] would be evicted.” At first, Penna ignored defendant and continued playing video games. But then Penna “grabbed his gun from out of the couch and stuck it in his waist[band], ” which surprised defendant, who “didn't think that [Penna] was going to react with a firearm to that situation.”
Defendant “told [Penna] about the car, [but] [Penna] just assumed it was about [the] firearm” that defendant traded with Penna. Defendant told Penna that he “needed the car moved, that [he] wasn't down there for [the] firearm, ” which Penna “could... shove... up his ass.” Defendant complained that Penna was “causing problems for [him] and [his] wife and [his] family.”
Penna Defendant understood Penna to be referring to the assault on defendant's wife. As he walked backwards toward his car, defendant repeated that he “need[ed] [Penna] to get [his] stuff... away from [defendant's] house.” “Just stay away from me, ” defendant said.
Penna approached the car as defendant...
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