People v. Foster, F021241

• Decision Date: 01 May 1995
• Docket Number: No. F021241,F021241
• Citation: 34 Cal.App.4th 766,40 Cal.Rptr.2d 633
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ricky T. FOSTER, Defendant and Appellant.

Page 633

40 Cal.Rptr.2d 633

34 Cal.App.4th 766

The PEOPLE, Plaintiff and Respondent, v. Ricky T. FOSTER, Defendant and Appellant.

No. F021241.

Court of Appeal, Fifth District, California.

May 1, 1995.

Certified for Partial Publication ^*.

Review Denied Aug. 9, 1995.

[34 Cal.App.4th 768] Jim Fahey, under appointment by the Court of Appeal, Arcata, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., and Wanda Hill Rouzan, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

DIBIASO, Associate Justice.

STATEMENT OF THE CASE

On November 29, 1993, an information was filed in Fresno County Superior Court, which charged appellant Ricky T. Foster as follows:

Count one: carjacking (PEN.CODE, § 215¹, subd. (a));

Count two: assault with a firearm (§ 245, subd. (a)(2));

Count three: kidnapping during the commission of a carjacking (§ 209.5, subd. (a));

Count four: kidnapping (§ 207, subd. (a));

Count five: kidnapping for robbery (§ 209, subd. (b)); and Count six: robbery (§§ 211, 212.5, subd. (b)).

As to each count, it was alleged Foster personally used a firearm during the commission of the offense (§ 12022.5, subd. (a)). It was further alleged that Foster had been previously convicted of a serious felony and had served a prison term therefor (§§ 667, subd. (a), 667.5, subd. (b)) and that he had previously served two other prison terms (§ 667.5, subd. (b)). ² Foster pleaded not guilty and denied the special allegations.

Jury trial began on January 24, 1994. On January 26, Foster was acquitted on count four, but convicted of the remaining charges. The firearm use allegations were found to be true. Following a bifurcated court trial, the prior conviction allegations were also found to be true. Foster's motion for new trial was denied, and he was sentenced to a total unstayed prison term of life with the possibility of parole plus 12 years. This timely appeal followed.

STATEMENT OF FACTS

At about 10 or 10:30 p.m. on October 19, 1993, Darnell Packard arrived at his home at 2112 East Church. He was driving his brother's white Jeep. When he arrived, he pulled into the driveway, then got out of the vehicle to move a trash can. He left the keys in the ignition and the motor running, as he intended to open the garage door and pull the Jeep into the garage.

Packard had just moved the trash can when he was accosted by a man who was wearing a ski mask and had a cocked gun. The man grabbed Packard by the shoulder, then told him to get down and get in the Jeep. Packard opened the driver's door and the man pushed him into the vehicle. The man had the gun to the back of Packard's head and got into the vehicle with Packard. He continued to hold onto Packard and told Packard not to look at him.

Still holding the gun to Packard's head, the man backed the Jeep out of the driveway and drove off with Packard. The man said he would shoot Packard if Packard tried to jump. The man drove to an alley and stopped. He instructed Packard to climb over the seat into the back seat. Packard did as he was told. In the back seat was a plastic bag which the man placed over Packard's head. When Packard pleaded with him, the man told Packard to shut up or Packard was going to die that way.

Packard managed to bite a hole in the bag so he could breathe. A few seconds later, some headlights turned into the alley. Packard was instructed to get on the floor and face the back passenger side door. The man, who kept the gun right to Packard's head, told Packard to stay down, keep the bag over his head, and not try to get out.

Packard got down as he was told and they began to move again. Packard pulled up on the front of the bag so he could see where they were going. After they turned onto Elm Street, the vehicle was "going kind of fast" and the man again told Packard not to try to jump out or he would shoot. At this point, the man still had hold of the back of Packard's shirt and the gun to the back of Packard's head.

As they proceeded up Elm Street, the man removed the ski mask. They turned onto California and proceeded toward Martin Luther King Boulevard. As they crossed that street, Packard sat up, looked in the rear view mirror, and recognized the man as Ricky Foster. Packard had grown up with Foster's cousin and had known Foster for several years. He had last seen Foster a week or two before the incident.

Foster also looked in the mirror; when he saw Packard, he said he was going to take Packard out into the country and blow his head off. Fearing for his life, Packard grabbed Foster's arm and they wrestled for the gun. Packard was reaching between the seats; the top part of his body was in the front seat. At this point, the Jeep was traveling 50 to 55 miles an hour and swerving as the men struggled.

The Jeep crashed into a tree by Edison High School. Packard remembered being thrown forward and then backward. He found himself in the back seat; the driver's seat had fallen all the way back and Foster was beside him. They continued to struggle for the gun. Packard pulled on the gun to try to get it away from Foster; the gun discharged once, the Jeep door opened, and Packard fell out. Foster said something which sounded like Packard's name.

Packard got up, but could only see the shadow of a person because his head had hit the windshield and his vision was hindered by blood running in his eyes. He could not tell if the person was coming toward him or not, so he pointed the gun and fired at the shadow. He believed the gun went off two or three times, after which it would no longer fire. Packard did not yell anything to Foster while he was shooting, nor, as far as he could recall, did he chase Foster. ³

Packard ran to the nearby home of Amalia Robles, at 720 East California. When Robles answered the door, Packard asked her to call the police, then he laid the gun down on the porch. When a police officer arrived, Packard reported that he had been carjacked and the vehicle had wrecked. The officer then proceeded to the location of the accident, while Packard waited at the house for an ambulance. A friend, Kevin Coleman, came over to help. Packard described himself as being excited and almost "knocked out in a sense." According to Coleman, Packard appeared to be in shock and said he had been "jacked." Packard said he took the gun from the person who did it, and he pointed to the apartment at which he had left the gun. Coleman assisted him in reaching the paramedics, who were at the accident site.

Fresno Police Officer Amey responded to the scene. She found Foster in a fenced area at 415 Kern Street, just east of California. He was wearing dark sweat clothes. Officer Ellis also responded. When he contacted Packard, Packard was covered with blood and appeared to be in some pain. He was very distraught. Packard told Ellis that he had been at his residence earlier in the evening and that he had parked his car in the driveway. When he returned to the vehicle from the front of the house, he was accosted by a Black male who had him enter the vehicle, tried to put a plastic bag over his head, took him westbound on California, and intimated that he was going to take Packard out in the country and kill him. Packard said the Black male stated he had a gun, and that a struggle ensued over the weapon, after which they had the accident. Packard reported that he was able to fight with the suspect, take the gun from him, and fire shots at the assailant.

The police found that the Jeep's windshield was broken outward on the passenger side, consistent with a person's face hitting it during a traffic accident. There was some blood in the vehicle, near the windshield and on the right front passenger side. A ski mask was recovered from the front floorboard on the driver's side. A .45 caliber automatic handgun was located on the porch of the residence at 720 East California. The slide was in a locked back position; this occurs after the last round is fired from the magazine. There were spots of blood on the porch and wall, directly above the gun.

Packard was eventually transported to the hospital. He had received cuts on his forehead and the left side of his face; a fractured left shoulder; a sore nose; and a black eye. In addition, he had lost two teeth and a third was broken. At the hospital, he was questioned regarding the description of the suspect. He was not asked for, nor did he give, Foster's name at that time. At trial, Packard explained that he had heard Foster's voice before the incident; when he saw the person with the ski mask, he thought he knew the voice, but he was not sure.

Foster was treated at the same hospital. He had suffered a bullet wound to the chest and another to the leg. According to Dr Nejat-Bina, the treating physician, Foster had none of the injuries which are commonly seen in victims of motor vehicle accidents.

Packard saw Foster again at the hospital. Foster was wearing the black pants he had worn during the incident, although his shirt was now off.

DISCUSSION

I.-IV. ^**

V. CALJIC No. 2.21.2

A. Error

Foster contends the trial court committed prejudicial error by instructing the jury in the words of CALJIC No. 2.21.2 (5th ed. 1988 bound vol.), ¹⁰ as follows:

"A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all of the evidence, you believe the probability of truth favors his or her testimony in other particulars."

Foster argues that when the instruction is applied to prosecution witnesses, it lowers the People's burden of proof "by permitting jurors to convict a defendant on the basis of pivotal-but-dubious testimony which, when viewed in light of the other evidence, is probably truthful." Thus, in Foster's view, the giving of an unmodified...