People v. Lashley, B051701

• Decision Date: 16 December 1991
• Docket Number: No. B051701,B051701
• Citation: 2 Cal.Rptr.2d 629,1 Cal.App.4th 938
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Mark Shane LASHLEY, Defendant and Appellant.

Page 629

2 Cal.Rptr.2d 629

1 Cal.App.4th 938

PEOPLE of the State of California, Plaintiff and Respondent, v. Mark Shane LASHLEY, Defendant and Appellant.

No. B051701.

Court of Appeal, Second District, Division 2, California.

Dec. 16, 1991.

Review Denied March 25, 1992.

[1 Cal.App.4th 941] John D. O'Loughlin, Beverly Hills, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., Donald E. De Nicola and William T. Harter, Supervising Deputy Attys. Gen., for plaintiff and respondent.

HART, Associate Justice. ^*

Defendant Mark Shane Lashley was convicted in a court trial of attempted murder (PEN.CODE , §§ 187¹, subd. (a), 664), assault with a firearm (§ 245, subd. (a)(2)), civil rights violations (§§ 422.6, 422.7), and brandishing a weapon (§ 417, subd. (a)(2)). Enhancement allegations for personal use of a firearm and intentional infliction of great bodily injury during the attempted murder and assault with a firearm charges were found to be true (§§ 12022.5, 12022.7). Following the denial of his motion for new trial, defendant was sentenced to state prison for an aggregate term of fourteen years and eight months. This appeal follows. We affirm.

FACTS

Prosecution's Evidence

This sad tale of racial asperity began June 26, 1988, when Terence Goudeau and his three cousins, Dennis, Kelvin, and Trenton Wilson, decided to fish along the shore of Ballona Creek in Marina Del Rey. Failing to notice a sign prohibiting fishing and trespassing in the area, the group walked the short distance from their car to the rocky bank of the channel. As they passed an adjacent apartment complex, defendant, who was leaning over his second story balcony railing, yelled out, "What kind of fish you gonna catch, black fish?" Goudeau caustically replied that he and his companions, each of whom was black, were planning to catch "white fish." Apparently angered by the answer, defendant, who was white, retorted with several racial epithets, addressing the men as "niggers" and "darkies" while demanding that they "take [their] black asses back to Harlem." After countering with an obscenity of his own, Goudeau and the others attempted to ignore the slurs but to no avail. Defendant, who had been joined on the balcony by several of his friends, persisted in taunting the group and, at one point, warned that he would send someone down "to kick ass."

Shortly thereafter, one of defendant's cohorts, Christopher Flores, appeared at the scene and walked toward where the men were fishing. Appearing heavily intoxicated, Flores confronted 12-year old Trenton Wilson, challenging him to fight. Goudeau, carrying a pocket knife he had been using to cut bait, essentially told Flores that neither he nor Trenton would fight. Noticing the knife, Flores retreated but not before warning the group that he would "show [them] a real knife." As he staggered away, both Goudeau and Trenton returned to fishing.

Some five minutes later both Goudeau and Trenton turned toward the apartment building and saw defendant posed on the balcony aiming a .22 caliber rifle in their direction. Goudeau yelled to a man standing on the balcony directly above defendant to summon the police and then attempted to position himself between the gunman and Trenton. Before Goudeau could move out of range, however, a shot rang out striking the upper portion of his left arm and piercing his lung. ² Carried to safety by one of his cousins, Goudeau lay bleeding on the ground when Flores again approached, this time wielding a hunting During the investigation which followed, several persons confirmed that they had seen defendant and Flores on the balcony, heard the racial epithets, observed the initial confrontation between Goudeau and Flores, heard the shot, and witnessed an intoxicated Flores return to the scene after the shooting with knife in hand. Defendant, having fled to Sacramento immediately after the incident, could not be found. Based upon the reports of both the victims and witnesses, officers at the scene arrested Flores and transported him to the station. ³ While en route, he volunteered that immediately after the shooting he had returned to the apartment where defendant, holding a rifle, announced that he had fired at Goudeau in order to protect Flores from being attacked. Flores later was released without being charged and defendant surrendered shortly thereafter to authorities in Sacramento.

knife. After remarking that the group should have avoided tangling with him because he was "no ordinary white boy," Flores stumbled back toward the apartment complex. Police and paramedics arrived shortly thereafter.

Defense Evidence

Testifying for the defense at trial, Flores essentially claimed that he, not Goudeau, had been the victim of an unprovoked and racially motivated attack. He recalled first observing the group from the balcony of defendant's apartment as they passed near the building on their way to the shore. When Flores inquired about the kind of fish they were hoping to catch, Goudeau replied, "white fish." Ignoring the comment, Flores returned inside the apartment, gathered several bags he needed for a trip, and then proceeded downstairs to the carport. As he unlocked the trunk of his vehicle, he heard Goudeau order him outside. Flores walked to a retaining wall near where Goudeau was standing and inquired what he wanted. When Flores declined a challenge to fight, Goudeau pulled a buck knife from behind his back and made a stabbing motion in the air. Two of the men who had been fishing also drew knives and, along with Goudeau, surrounded Flores blocking his escape. While attempting to move toward the apartment building, Flores heard a "pop" and then saw the men scatter in the direction of the water.

After reaching the carport, Flores grabbed a knife and returned to where he had been confronted by the group. Goudeau, who was on the ground bleeding, ordered the others to "kill that honky motherfucker." Hearing that the police had been summoned, Flores walked back to the carport, placed the knife in his vehicle, and then returned to the scene, exclaiming that he was "no ordinary white boy." He later was arrested and taken to jail. Although admitting he had told the officers of defendant's involvement in the shooting, Flores claimed at trial he had concocted the story solely to secure his release from custody. He also denied being heavily intoxicated at the time of the incident.

Defendant, along with several other defense witnesses, essentially testified in support of Flores' account of the shooting and the events preceding it. Denying any racial motivation for his actions, defendant maintained that upon seeing Flores threatened at knifepoint by Goudeau and the others he felt compelled to defend his friend. He insisted, however, that in firing the rifle his intent was not to kill Goudeau but only to wound him. Although he denied making any statement to Flores immediately after the shooting, defendant admitted departing for Sacramento soon after the incident and disposing of the rifle en route. Other evidence introduced by the defense went to proving that neither defendant nor Flores was drunk on the day of the shooting and that one of the men in the group had threatened Flores with a switchblade.

DISCUSSION

Sufficiency of the Evidence to Support Defendant's Conviction for Attempted Murder

In urging us to reverse the judgment of conviction for attempted murder, defendant contends that the evidence is insufficient to establish that he possessed the specific intent to kill. ⁴ The argument rests on the notion that had he truly intended to kill Goudeau he would have fired more than one shot at his target or taken some other action to insure the accuracy of his aim. The evidence, he claims, demonstrates at most an intent to disable or to inflict serious bodily injury. We think not.

The question of defendant's intent at the time of the shooting was a factual issue that the trial court determined adversely to him. The only possible reason for reaching a different result here rests on the untenable theory that an unsuccessful killing constitutes conclusive evidence of lack of intent. There is nothing inherently illogical or absurd in a finding that a person who unsuccessfully attempted to kill another did so with the intent to kill. The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter's poor marksmanship necessarily establish a less culpable state of mind.

Viewing the evidence in the light most favorable to the judgment, as we must (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110; People v. Woods (1991) 226 Cal.App.3d 1037, 1049, 277 Cal.Rptr. 269), there was sufficient evidence from which the trial court could find that defendant harbored the requisite intent necessary to support his conviction for attempted murder. Defendant's conduct prior to the shooting, which included a threat to do bodily harm, combined with the testimony that he took aim before firing, and the seriousness of the victim's injuries constitutes substantial evidence on the issue of intent. The very act of firing a .22 caliber rifle toward the victim at a range and in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill under the circumstances presented here. Contrary to the argument advanced on this appeal, the evidence need not show in every instance a firing at point-blank range before the trier of fact may conclude that the shooter unambiguously intended to kill. While such evidence undoubtedly creates a strong inference that the killing was intentional (see People v. Jackson (1...