People v. Magee

CourtCalifornia Court of Appeals
Decision Date27 August 2020
Docket NumberF077067
PartiesTHE PEOPLE, Plaintiff and Respondent, v. LOUIS TRUMAN MAGEE, Defendant and Appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua and Michael G. Bush, Judges.

Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Jennifer Oleksa and Cavan M. Cox, II, Deputy Attorneys General, for Plaintiff and Respondent.-ooOoo-

INTRODUCTION

Defendant Louis Truman Magee was charged with and convicted by jury of the attempted premeditated murder of his former fiancée (Pen. Code, §§ 664/187/189; count 1),1 stalking (§ 646.9, subd. (b); count 2), making criminal threats (§ 422; count 3), two counts of contempt of court for violating a protective order (§ 166, subd. (c)(4); counts 4 & 5), assault on a peace officer (§ 245, subd. (c); count 6), evading a peace officer (Veh. Code, § 2800.2; count 7), and misdemeanor hit and run (Veh. Code, § 20002, subd. (a); count 8). Defendant was sentenced to an indeterminate term of life in prison with the possibility of parole for attempted premeditated murder, consecutive to a total determinate term of seven years four months as follows: the upper term of five years for assault on a peace officer, one year for stalking, eight months for the first count of violating a protective order, and eight months for evading a peace officer. The court imposed concurrent terms of three years each for making criminal threats and for the second count of violating a protective order, and a concurrent term of 180 days in jail for misdemeanor hit-and-run.

On appeal, defendant challenges his conviction on count 1 for attempted premeditated murder and his convictions on counts 4 and 5 for violating a protective order. As to count 1, defendant claims the trial court erred when it denied his motion for acquittal under section 1118.1 and the jury's verdict is not supported by substantial evidence of intent to kill, commission of an overt act, or premeditation. As to counts 4 and 5, he claims the trial court erred when it omitted two elements from its instruction to the jury on section 166, subdivision (c)(4).

The People dispute defendant's entitlement to relief from his conviction for attempted premeditated murder, but they agree the court erred in instructing the jury on violation of a protective order under section 166, subdivision (c)(4).

We reject defendant's claim that the trial court erred in denying his section 1118.1 motion and find substantial evidence supports his conviction for attempted premeditated murder. However, we concur with the parties that the trial court erred when it instructed the jury, we find the error prejudicial under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), and, as explained post, we accept the parties' concession and modify the verdicts on counts 4 and 5 to reflect misdemeanor convictions under section 166, subdivision (c)(1). Finally, on our own motion, we order the trial court to correct the clerical error in the abstract of judgment addressed in part III. of the Discussion.

Except as modified, the judgment is affirmed.

FACTUAL SUMMARY
I. Prosecution Case
A. Background

Defendant and his former fiancée, L.S., were together for three years before breaking up in September 2016. At that time, they lived in L.S.'s apartment in Bakersfield and she permitted him to continue living there for a while because he had nowhere to go. L.S. testified that they did not get back together, but after she moved in with her cousin next door, she brought him food because he was not working and he did not have the key to the apartment so she would have to let him in sometimes.

At the beginning of January 2017, L.S. obtained a restraining order against defendant. On January 7, 2017, defendant called her more than five times from his own phone and from blocked phone numbers, even though she had changed her phone number. L.S. testified that defendant threatened to kill her and then himself, and she feared for her safety. He also left a voicemail message stating, "Answer your phone,bitch." L.S. called 911 and reported that defendant kept calling her, including at her job, despite the restraining order.

On January 25, 2017, defendant called L.S. more than 10 times from different phone numbers and left messages. She testified he also came over to the apartment and threw rocks at the window to get her to come out. L.S. called 911 in fear and reported that defendant kept calling her, in violation of the restraining order. Officer Vining, who responded to the call, testified that he saw approximately 28 missed calls on L.S.'s call log from unknown numbers and also saw text messages from unknown numbers. L.S. told Vining that she sometimes received calls at work from unknown numbers and that she had changed her phone number in the past because defendant was contacting her.

When her lease expired in January 2017, L.S. moved in with her cousin, A.W., who lived in the apartment next door.

B. Charged Events
1. Incident on May 1, 2017

On May 1, 2017, L.S. was hanging out at the apartment with A.W. and another cousin, A.G. Earlier in the day, defendant texted L.S. and made comments regarding where she was and what she was wearing, which caused her to believe he was following her. L.S. later received a call from defendant telling her he was outside and he wanted her to come out. She testified that he threw a rock at the bedroom window and she saw him outside driving with his lights off, running up and down the stairs, and hiding around bushes. L.S. testified that she feared for her life because prior to showing up, defendant threatened over the phone to harm her and himself. A.G. heard defendant threaten to kill L.S. when the phone was on speaker, and when defendant showed up, A.G. called 911 before turning the call over to L.S. It was dark outside, and L.S. reported defendant had his lights off and she did not know where he was.

The entrance gate into the apartment complex was not working at the time and, when the police arrived, L.S. left the apartment to trigger the exit gate with her car so thatpolice could enter the complex. After L.S. got into her car, defendant pulled up behind her in his car, blocking her in. He bumped the rear of her car with the front of his car and then drove toward the exit gate.

Officers Glenn and Salazar arrived at the apartment complex in response to the 911 call shortly after 11:30 p.m. Someone drove out of the complex, which allowed Glenn to drive the patrol car in through the exit gate. Several other responding patrol cars remained outside of the gate. Glenn and Salazar heard screaming and cries for help from a group of women. Someone yelled, "'That's him,'" and pointed toward defendant's car, which was then behind L.S.'s car blocking it in. Glenn parked the patrol car and Salazar was in the processing of exiting from the passenger side when defendant turned his car toward them and accelerated at a high rate of speed. Glenn testified that Salazar "dove" back into the patrol car and if she had not done so, defendant would have hit her with his vehicle. Glenn thought defendant was going to hit their patrol car head on and braced for impact. Defendant drove to the exit gate, however, and while he waited for it to open, Glenn turned the patrol car around and pulled behind defendant.

Glenn and Salazar followed defendant out of the apartment complex. During the ensuing pursuit, defendant ran multiple red lights at high speed and once he was on the highway, he accelerated up to 115 miles per hour. At one point, he lost control of his car and hit a cement guardrail. After they broke off the pursuit for safety reasons, Glenn and Salazar returned to the apartment complex and spoke with L.S., A.G., and A.W. While the officers were there, defendant called L.S.'s phone and she answered. Defendant then spoke to Glenn and identified himself as the individual involved in the pursuit. Defendant agreed to meet Glenn at the Kmart parking lot but when Glenn responded to that location, defendant failed to show up.

2. Incident on May 9, 2017

L.S. moved out of her cousin's apartment shortly thereafter. Subsequently, on May 9, 2017, A.W. was asleep in the bedroom she and L.S. had shared before L.S.moved out. A.W. heard defendant jiggle the door and call for L.S. Defendant threw rocks at the bedroom window and A.W. heard him at the window. After A.W. heard a loud bang against the window, she feared he was going to break in and called 911. A.W. testified that she told defendant L.S. was not there and he would become silent for a while before returning. A.W. stated that defendant had behaved similarly on other occasions and she would wait for him to leave, but this time "felt different" and she feared for her life.

Multiple officers, including Glenn and Salazar, were dispatched to A.W.'s apartment at approximately 2:45 a.m. They searched the apartment complex and Glenn located defendant hiding in the backseat of his car, which was backed into a parking stall. From that position, defendant had a direct view of A.W.'s apartment, including the door, windows, and stairwell to the apartment, which was on the second story. Salazar located a bag in the front seat of the car that contained a large, fixed-blade butcher knife, duct tape, yellow rubber dishwashing gloves and multiple large trash bags. The items appeared to be new. Salazar also...

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