People v. Neith

THE PEOPLE, Plaintiff and Respondent, v. ALFRED JACOB NEITH, Defendant and Appellant.

F079425

California Court of Appeals, Fifth District

February 18, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No BF171546A. John D. Oglesby, Judge.

Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

Defendant Alfred Jacob Neith stands convicted by jury of one count of assault with a firearm pursuant to Penal Code section 245 subdivision (a)(2).^{[1, ] [2]} The jury also found true a great bodily injury (GBI) enhancement under section 12022.7, subdivision (a), and a firearm enhancement under section 12022.5 subdivision (a). Defendant was sentenced to an aggregate determinate term of nine years.^[3] (§§ 245, subd. (a)(2), 12022.5, subd. (a), 12022.7, subd. (a).) The court also imposed a $300 restitution fine, and court assessments in the amount of $70.

Defendant appeals the conviction on grounds the People failed to prove beyond a reasonable doubt that he did not act in self-defense or in defense of others in shooting the victim, the trial court erroneously and prejudicially excluded portions of the victim's interview with police, and the trial court erred by failing to consider defendant's inability to pay the fines and fees assessed at sentencing.

For the reasons discussed below, we conclude there was substantial evidence to support the verdict, any error by the trial court in excluding the victim's police interview was not prejudicial, and the argument under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) regarding defendant's ability to pay the fines and assessments is forfeited. Defendant's ineffective assistance of counsel claim regarding defense counsel's failure to object under Dueñas fails because the record does not demonstrate defense counsel's performance was deficient or that defendant suffered any prejudice. The judgment is affirmed.

BACKGROUND

At around 6:45 p.m. on the evening of March 9, 2018, officers responded to a 911 call to a location in Lake Isabella. Kern County Sheriff's Deputy Tommy Robins was the first emergency responder to arrive. He found someone, later identified to be Marvin S., lying in the roadway across from what was later identified as defendant's residence. There were several people around Marvin. Marvin had been shot four times, and someone was applying pressure to his wounds. Marvin told the officer that "'Al shot me.'"

Deputy Robins saw defendant standing near the door of his residence and asked him to walk over to the patrol car. Defendant was calm and cooperative; he told Robins there was a firearm on the bench near the house. While defendant and Robins walked back to Robins's patrol car, Officer Jonathan Nunez arrived. Robins told Nunez about the firearm on a bench near the front of defendant's residence. After placing defendant in his patrol car, Robins went to check on the victim. Robins worked to secure the scene and saw a beer bottle lying about 20 feet from Marvin.

Deputy Nunez found a nine-millimeter Glock handgun on a patio bench seat right next to defendant's front door. There were no bullets in the firearm, but there was a magazine next to the firearm that contained six rounds. He saw Marvin briefly, but did not notice any blood coming from his nose-paramedics were providing aid.

Deputy Kent Sakamoto was next to arrive at the scene. He saw numerous civilians in the location, but Marvin had been taken to the hospital. He spoke with defendant's wife, Mary A. He did not see any injuries on her, but she was distraught. She mentioned she was struck just before the shooting, she landed on the ground, and just when she looked up, she saw the flash of a muzzle and defendant was firing his gun. She was unsure with what she was struck or how, but she did not indicate she lost consciousness.

Sakamoto also found four spent nine-millimeter shell casings near Marvin. He participated in a recorded interview of defendant that took place close to midnight. Sakamoto did not participate in the interview of Marvin at the hospital.

Sarah is married to Joe. They live in the same neighborhood as defendant, and she met defendant because their respective children hung out. Sarah had seen defendant's drone flying near her house about five times-it was generally hovering in front of her window; it had also come inside the netting of the kids' trampoline in her yard. She called the sheriff's department and reported it-she knew it was defendant who was flying the drone because his child was bragging about it to her children at school.

On the day of the shooting, Marvin was at Sarah and Joe's house, and he had been drinking-Sarah was unsure how much. She saw Marvin and her husband leave the house, and she knew Marvin was frustrated, ostensibly about the drone defendant had been flying. They were going to a neighbor's house-Joe told Sarah they were going to Tim's house. Sarah knew Marvin had been down to defendant's house one time before that-sometime in the afternoon, when she was not present. Tim's wife, who lives close to defendant, had called Sarah to tell her Marvin had been to defendant's house and asked if everything was okay. Sarah was aware there had been some kind of confrontation between Marvin and defendant earlier in the day. When Joe and Marvin left the house, they did not say anything to Sarah except that they were going to see Tim.

At some point, Sarah's kids told her they heard some screaming, so she got in her car with Marvin's wife, Ellen. They rode together to defendant's house. When they arrived, Sarah could see Marvin, Joe, defendant, and defendant's wife, Mary, were arguing. As Sarah exited the car, defendant was yelling at Marvin and Joe, and he was holding a gun behind his back. Defendant was accusing Joe and Marvin of being rats and cop-callers, that they needed to mind their own business, and he could fly his drone "where the F he pleased."

When Sarah exited the car, Mary charged at Sarah and wanted to fight her. Mary had her fist pulled back and was saying things like she was going to "beat" Sarah's "ass" and accused Sarah of calling law enforcement about the drone. Defendant grabbed Mary by the back of her hoodie and pulled her away from Sarah. Ellen also got out of the car and went to Marvin-she pleaded with him to go home and told him the altercation was not worth it. There was about seven feet between defendant and Marvin at that point. Sarah never heard Marvin threaten defendant, nor did she hear Joe say Marvin had a gun. Joe kept saying it was ridiculous and they should just leave, but Marvin would not listen.

When Mary was pulled away from Sarah by defendant, Mary then ran around behind defendant, charged Marvin, and hit Marvin in the nose. Marvin put up his hands to block her hit because she turned around to hit him again. When he blocked her from striking him, she fell; then defendant started shooting. Sarah never saw Marvin move toward Mary after she came toward him, all he did was try to block his face with his right hand. He never swung the beer bottle at Mary because after she hit him the first time, the beer bottle fell out of his left hand and hit the ground near where he was standing. Mary had not fallen all the way to the ground when shots were fired. The first two shots were immediate, then there was a pause of a second, followed by two more shots. All the shots were fired at the front of Marvin's body-he was not shot in the back. Sarah thought defendant had his right hand behind his back right up until he fired the weapon at Marvin.

After shooting Marvin, defendant walked back to his house, handed his mother- who lives two houses away-the gun, and then defendant remained in his yard laughing. Sarah called 911 while she was trying to get the neighbors to bring some towels or rags to help Marvin.

According to Joe, he had met defendant before the shooting-their respective children had been friends, but the children had a falling out before the shooting. Joe saw the drone in his yard in March 2018 about 15 times. It would come near the kids' trampoline, and it would look into windows. It was a black, square drone with four propellers.

On the day of the shooting, Marvin came to Joe's house around 4:30 or 5:00 in the evening. Joe had a couple of cocktails and Marvin had a couple of beers. Marvin told Joe about the confrontation between Marvin and defendant earlier in the day; Joe knew Marvin was upset with defendant. Joe decided to see his friend Tim, and Marvin followed along. Joe thought since Tim still talked to defendant, maybe he would know how to diffuse the situation. Joe denied they headed to defendant's house; they went to Tim's house, but Tim was not home when they knocked on his door. Tim's house was close to defendant's home, however, and Marvin started yelling toward defendant's house when he was out on the street; defendant came outside and they proceeded to argue about the drone. It was just defendant, Marvin and Joe in the street at that time, until Sarah and Ellen showed up a bit later.

The argument between defendant and Marvin was loud and lasted about five minutes-they were both threatening to beat each other, but Joe never heard anyone say anything about a gun. Joe noticed defendant had his hand behind his back, but Joe never saw a gun until defendant fired it; Marvin did not have a gun. There was no physical altercation until Mary ran up and punched Marvin in the face. Marvin reacted...