People v. McDaniel
| Decision Date | 25 May 2012 |
| Docket Number | A130570 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. PATRICK DEWIN McDANIEL, SR., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. No. CR-917541A)
Defendant was convicted following a jury trial of the lesser offense of attempted voluntary manslaughter (Pen. Code, §§ 66/192, subd. (a)), assault with a firearm (Pen. Code, § 245, subd. (a)) with personal use of a firearm (Pen. Code, § 12022.5) and infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)), possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)), possession of ammunition by a convicted felon (Pen. Code, § 12316, subd. (b)(1)), and carrying a loaded firearm in a public place (Pen. Code, § 12031, subd. (a)). In this appeal and a related petition for writ of habeas corpus, defendant argues that evidence of the prior misdemeanor convictions of prosecution witnesses was either erroneously excluded, or his counsel was ineffective for failing to seek admission of the evidence. We conclude that the trial court did not err by excluding a conviction of indecent exposure suffered by one of the witnesses, and no prejudice resulted from the absence of evidence of other misdemeanor criminal conduct by the witnesses. We therefore affirm the judgment.
The convictions are all associated with a brief physical altercation the evening before Thanksgiving in 2008, that occurred between occupants and visitors at two residences next to each other on Second Street in Clearlake Oaks, and culminated in the shooting of Patrick O'Connor, Sr., known as Rick. Defendant did not contest that he committed the shooting, but claimed the shot was fired due to accidental discharge of his handgun during a struggle with the victim.
The victim and his wife Maria, Rick's son Patrick O'Connor, Jr., and his wife Angelica and their children, and Rick's brother James O'Connor, occupied one of the houses.1 The adjacent house was occupied by Jill Robbins, who was visited that evening by her former boyfriend Daniel Clapp, an acquaintance Willard Moleiro and his companion Kim, defendant and his companion Stephanie, and defendant's brother Cecil. Defendant and his brother are African-Americans; the O'Connors are White.
During the course of the evening, the gathering at Robbins's house became boisterous. Moleiro observed defendant waving a "small caliber automatic" gun, while "ghetto trash talking."
When the victim and his son Patrick heard yelling and swearing at Robbins's house, they proceeded to the fence at the corner of their yard to "see what was going on." Defendant was standing on Robbins's front porch talking loudly on his cell phone. Robbins testified that she heard "voices raised" outside, so she walked out her front door and asked defendant to "please lower his voice." Defendant told Robbins to, "shut the hell up," or "bitch shut up," which according to her was typical language from him.
Rick and James heard an offensive verbal exchange between defendant and Robbins on the front porch. They also observed defendant push Robbins, although Robbins testified that defendant never touched her. The "men next door" asked Robbins if she needed help; her response was, "No, absolutely not." Rick told defendant, "That's enough of that." Rick and James testified that defendant retorted, "Fuck you, nigger."
Incensed that defendant called him "a name," Rick rushed through a gate into Robbins's yard, followed by Patrick and James. Robbins testified that as they pushed past her toward the front porch, Rick was holding what appeared to be a stick or pipe, and Patrick had what "looked like a screwdriver." She also heard one of them yell, "Get those fucking niggers." Patrick and Rick testified that they did not have any weapons in their hands, although Rick acknowledged that he carried a "tiny old-timer pocketknife" in his pocket as he approached defendant.
As Rick reached the porch, defendant struck him on the side of his head "with a hard object." Rick pushed defendant, who took "a couple steps back." According to Rick, defendant then stepped forward, raised a gun, and shot him.
Cecil, who had joined defendant on the porch, swung his fist at Patrick, but missed when Patrick ducked. As Patrick pushed Cecil away, he heard the "boom" of a gunshot, looked over, and saw the "flash" of a gun in defendant's right hand. Rick stumbled back and yelled, "I've been shot." Patrick testified that he heard two more two "clicking sounds" as he and Rick started to run away.
James heard the shot as he jumped the fence into Robbins's yard. When he reached the porch James asked Cecil if he shot Rick. Cecil immediately punched him in the jaw, knocking him to the ground. Robbins testified that James called defendant "a nigger," whereupon Cecil said, "You called my brother a nigger," and punched James in the face. James sustained a broken jaw from the punch.
Rick, Patrick and James retreated to their yard and awaited medical help. Rick was transported to the hospital for treatment of a gunshot wound that entered the base of his neck just above the sternum, and exited his back. Both defendant and Cecil ran through the front gate, out of the yard, and onto Second Street. At the hospital later that night a photo lineup was displayed to Rick; he identified defendant as the man who shot him.
A police investigation of the scene of the shooting that night revealed "blood drops" on Robbins's front porch, but no expended shell casings or weapons of any kind. The next day, a Walther PPK .380-caliber semi-automatic pistol was found in the dirt onthe side of a carport, three houses away from Robbins's residence. Two rounds were "jammed" in the chamber, and three more were in the magazine. Upon inspection, dirt and a piece of cloth were discovered in the ejection port and the magazine of the gun. The registered owner of the gun was not determined, and it was not identified as the weapon used to shoot the victim.
The prosecution offered expert testimony on the condition and operation of the Walther PPK .380-caliber semi-automatic pistol. Sergeant Donald McPherson of the Lake County Sheriff's Department testified that the gun was equipped with an "internal safety" mechanism that prevented accidental firing without the "trigger being pulled." However, he testified that the gun may accidentally discharge if a person mistakenly left a finger on the trigger while holding it. The Walther PPK .380-caliber semi-automatic pistol was functional, but failed to properly reload and jammed occasionally during test firing.
The defense expert, Kenneth Gaudet, also examined the Walther PPK .380-caliber semi-automatic pistol found near the scene of the shooting. He agreed that the gun was functional, despite its dirty condition and oxidation. When the gun was test fired, Gaudet noticed that it malfunctioned intermittently due to "a failure to feed" from the magazine into the chamber.
Defendant was arrested in Las Vegas in December of 2008. In his ensuing statement to the police defendant asserted that after he exchanged insults and offensive epithets with the O'Connors, he observed them walk into Robbins's yard, "all riled up." Defendant became concerned when he observed one of the O'Connors carrying a "buck knife," so he removed the gun from his coat pocket and struck the victim in the head with it. When defendant hit Rick with the gun, it accidentally "went off." "Bam!" Defendant stated that he did not mean to shoot Rick. He insisted that if he had intended to kill the victim he would have fired multiple shots, not "just one." He then "panicked" and fled down the street. He threw the gun in someone's front yard as he left.
Defendant argues that the trial court erred by limiting defense impeachment evidence. Evidence of misdemeanor convictions suffered by James and Rick was offered by the defense to impeach the witnesses: James's conviction of burglary in 2001 and possession of stolen property in 2002; and Rick's convictions of indecent exposure in 1990, violation of a domestic restraining order in 2004, battery in 2005, disturbing the peace in 2008, and assault on a domestic partner in 2009. The court granted the defense request to impeach James with the fact and nature of both of his prior misdemeanor convictions, but not the conduct associated with them. The court excluded the proffered evidence of Rick's misdemeanor convictions for indecent exposure and disturbing the peace, but admitted the fact of his remaining convictions as impeachment evidence.
Defendant presents two contentions related to the exclusion of evidence offered to impeach James and Rick. First, he complains that the court "abused its discretion in excluding the indecent exposure incident." Second, he argues that the court erred by admitting "the mere fact of prior convictions for misdemeanors," and excluding "evidence of the specific conduct" by Rick and James that resulted in the convictions. Defendant maintains that the court's limitation on defense impeachment evidence deprived him of the opportunity to "show the jury that these witness were likely dishonest and morally lax," in violation of his "right to confrontation, cross-examination and due process." He submits that the limitation placed on the ability of the defense to "properly confront and cross-examine these two key witnesses prejudiced his right to a fair trial," and requires reversal.
We begin our inquiry with recognition of the fundamental constitutional premise that, " ...
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