People v. Winter

• Court: California Court of Appeals
• Writing for the Court: CODRINGTON Acting P. J.
• Decision Date: 05 March 2020
• Docket Number: E071789
• Citation: People v. Winter, E071789 (Cal. App. Mar 05, 2020)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. SEAN DEREK WINTER, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. SEAN DEREK WINTER, Defendant and Appellant.

E071789

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

March 5, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. FVI17000076)

OPINION

APPEAL from the Superior Court of San Bernardino County. Corey G. Lee, Judge. Affirmed.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

Defendant and appellant, Sean Derek Winter, was driving over 90 miles per hour on the freeway with codefendant, Samantha Ross-Blume, in the passenger's seat when California Highway Patrol (CHP) officers tried to pull him over. Defendant exited the freeway and the CHP officers activated their lights and sirens. Defendant then shot about 30 rounds from an AK-47 in the direction of the officers' vehicle. The officers slowed down and lost sight of the vehicle. Defendant abandoned the vehicle, fled on foot, and broke into a nearby house, where he spent the night.

A jury convicted defendant of two counts of attempted murder of a police officer (Pen. Code, §§ 187, subd. (a),¹ 664 subd. (e)-(f); counts 1 & 2); two counts of assault on a peace officer with an assault weapon (§ 245, subd. (d)(3); counts 3 & 4); one count of shooting at an occupied motor vehicle (§ 246; count 5); one count of evading an officer (Veh. Code, § 2800.2, subd. (a); count 6); one count of residential robbery (§§ 459, 460, subd. (a); count 7); one count of assault with a firearm (§ 245, subd. (a)(2); count 9); and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1); count 11). The jury also found true various firearm enhancement allegations, but did not find true the allegation that counts 1 and 2 were premeditated. The jury also found defendant not guilty of a second count of residential robbery (§§ 21, 212.5, subd. (a); count 8). The trial court sentenced defendant to a determinate term of 22 years 4 months, followed by an indeterminate term of 7 years to life. The trial court also imposed a $300 restitution fine (§ 1202.4) and $560 in assessments (§ 1465.8; Gov. Code, § 70373).

Defendant raises eight contentions on appeal: (1) there was insufficient evidence for the jury to convict him of attempted murder; (2) the trial court erred by denying defendant's motion for a mistrial; (3) the trial court improperly failed to hold a hearing on whether jurors considered defendant's decision not to testify in reaching a verdict; (4) the trial court erred by not granting defendant's motion to disclose juror contact information; (5) the trial court erroneously denied defendant's motion for a new trial; (6) the trial court improperly instructed the jury on evading a peace officer; (7) the trial court improperly instructed the jury on flight; and (8) the trial court improperly imposed the fines and assessments without considering defendant's ability to pay. We reject defendant's contentions and affirm the judgment.²

II.

FACTUAL AND PROCEDURAL BACKGROUND

Around 2:00 a.m., CHP officers saw a Chevrolet Impala speeding on the freeway in a remote desert area in San Bernardino County. The officers pursued and matched its speed of over 90 miles per hour. The vehicle exited the freeway. The officers followed and activated their vehicle's lights and sirens. The Impala ran a stop sign, reentered the freeway, and sped off, reaching 95 miles per hour.

As the officers pursued the Impala, they "saw projectiles" and heard "a loud noise" that was consistent with gunshots being fired. The officers heard more than 30 rounds shot rapidly as if they were shot from a machine gun, and saw sparks directly in front of their car caused by the rounds hitting the asphalt. One round hit and damaged the officers' vehicle's windshield. The officers slowed down to increase their distance from the Impala and eventually lost sight of it. The officers found the Impala stopped in the center divider. The officers then set up a perimeter.

Upon inspecting the Impala, the officers observed that its rear window had been "shot out." The officers found two firearms and a 30-round magazine for an AK-47. A subsequent analysis found 28 expended rifle casings on the car floor and determined that the rounds had been shot from the passenger seat. The officers also found a cell phone that appeared to belong to Ross-Blume, which had photographs of defendant holding an AK-47.

Ross-Blume testified that defendant was driving the Impala and she was in the passenger seat when they passed the CHP officers. Defendant handed her a gun and told her to shoot at the officers, but she refused, so he directed her to change seats with him and drive while he shot at them.

Ross-Blume explained that the Impala got stuck in a ditch, so she and defendant exited the vehicle and ran. Defendant took the AK-47 with him. They slept in the desert and waited for the sun to rise. When daylight broke, they walked in the desert for about five or six hours until they found a house. They got into an unlocked parked car on the property and took a nap. When they woke up, they went into the property, used the bathroom, and drank and ate. Defendant found some guns in the house and brought them into the bedroom, put one under each pillow, and put the AK-47 on the floor.

Defendant and Ross-Blume were woken up by T.C. When T.C. reached for his cell phone, defendant and Ross-Blume pointed guns at him. After T.C. left, defendant and Ross-Blume went to the vehicle outside the house and went back to sleep. Law enforcement arrived later that day and arrested them.

III.

DISCUSSION

A. Substantial Evidence Supports Defendant's Convictions for Attempted Murder

Defendant argues his convictions for attempted murder must be reversed because there was no substantial evidence that he intended to kill the CHP officers. We disagree.

To determine whether there is sufficient evidence to uphold a conviction, we review the entire record to determine whether it discloses reasonable and credible evidence to allow a rational trier of fact to determine guilt beyond a reasonable doubt. (People v. Smith (2005) 37 Cal.4th 733, 738-739.) The conviction must be based on substantial evidence—evidence that is reasonable, credible, and of solid value. (People v. Cravens (2012) 53 Cal.4th 500, 508.) We "review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (Ibid.)

The elements of attempted murder are "specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) Intent usually must be inferred from the circumstances of the attempt. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) An inference of an intent to kill arises when the defendant purposefully uses a lethal weapon with lethal force against a victim. (People v. Smith, supra, 37 Cal.4th at p. 742.)

Here, substantial evidence supports the jury's finding that defendant acted with the intent to kill. "'The act of firing toward a victim at a close, but not point blank, range "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."'" (People v. Smith, supra, 37 Cal.4th at p. 741.) The record shows that defendant shot at the officers with an AK-47 approximately 30 times. This was more than enough for the jury to find that defendant acted with the requisite intent to kill. (See People v. Lashley (1991) 1 Cal.App.4th 938, 945 ["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."]; People v. Vang (2001) 87 Cal.App.4th 554, 563-564 ["The jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up."].) We therefore reject defendant's contention that there was insufficient evidence for the jury to convict him of attempted murder.

B. The Trial Court Did Not Abuse its Discretion by Denying Defendant's Mistrial Motion

1. Background

During closing argument, Ross-Blume's counsel argued she was credible because she testified at trial. Counsel stated, "[Ross-Blume] has [an] absolute right to sit there and not get on that stand. And she chose to tell her story. And she's quite credible. Quite credible." Counsel also noted that Ross-Blume's testimony was consistent with what she had told the police, and repeated that "she got on the stand, was very credible, and told her story." Counsel continued to argue Ross-Blume's testimony was credible because "this is her testimony, and we haven't heard any evidence to contradict it," "[s]he chose to tell her story," "she has no reason to lie," and "[y]ou heard her testify on the stand." Counsel did not mention that defendant did not testify.

Defendant moved for a mistrial based on Ross-Blume's counsel's line of argument. In defendant's view...