People v. Palmer

35 Cal.Rptr.3d 373

133 Cal.App.4th 1141

The PEOPLE, Plaintiff and Respondent, v. Ralph Carl PALMER, Defendant and Appellant.

No. B170281.

Court of Appeal, Second District, Division 3.

October 31, 2005.

Certified for Partial Publication.^*

Susan Pochter Stone, Santa Barbara, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, Lawrence M. Daniels and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.

ALDRICH, J.

I INTRODUCTION

Defendant and appellant Ralph Carl Palmer committed an armed robbery of a Stein Mart store. As Palmer was attempting to drive from the crime scene, La Verne Police Officer Michael Burks stopped Palmer in the store parking lot. As Burks was exiting his patrol vehicle, Palmer suddenly exited his car, swiveled around, and shot at Burks. Burks dove for cover behind his patrol vehicle's door, breaking his ankle in the process. A jury convicted Palmer of second degree robbery, attempted murder, and assault on a peace officer with a semiautomatic firearm. It also found true allegations that Palmer personally and intentionally used and discharged a firearm during commission of the attempted murder and assault, proximately causing great bodily injury. (Pen.Code, § 12022.53, subd. (d).)¹ As a result of the jury's findings on the section 12022.53, subdivision (d) allegations, Palmer's sentence was enhanced by a prison term of 25 years to life.

In the published portion of this opinion, we conclude that the section 12022.53, subdivision (d) enhancement for discharging a firearm, proximately causing injury, is satisfied even though the injury at issue is not a bullet wound but a broken ankle resulting from the victim's evasive action. We further conclude the evidence was sufficient to prove the injury was caused by the discharge of the gun, rather than the mere pointing of the gun, and defense counsel therefore was not ineffective for failing to advance an insufficiency theory. Finally, we conclude that the jury was not misled by CALJIC No. 17.19.5.

In the unpublished portion of the opinion, we consider and reject Palmer's contentions that the trial court committed instructional error; his counsel was ineffective; the trial court erred by allowing admission of evidence of a prior conviction and prison term; the trial court erred by denying his Pitchess² motion for in camera review of peace officer records; the prosecutor committed prejudicial misconduct; jurors committed prejudicial misconduct; the trial court failed to exercise informed discretion when sentencing him; and his sentence was imposed in violation of Blakely v. Washington.³

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts.

On the evening of December 23, 2001, Palmer robbed three employees at a La Verne Stein Mart store. Palmer, who was wearing a beanie with a star embroidered on the front, and a bandanna covering his face from the nose down, entered the store carrying a semiautomatic firearm. He approached cashier Dustin Figueroa, who was counting the money in the register, pointed a gun at Figueroa, and told him to leave the register open. Palmer took bills from the register and placed them into a black pouch he was carrying.

Palmer then approached cashier Sara Guillen. While holding the gun, he told her to "open [her] till." She backed away and allowed Palmer to remove money from the register. Palmer took only bills, not coins.

Assistant Manager Jill Cochran was at the front of the store when Palmer entered. Alarmed by the fact he was wearing a bandanna over the lower half of his face, she headed to the customer service desk to telephone police. Palmer displayed the gun and told her not to move.

After removing money from the two registers, Palmer departed. Cochran telephoned police.

La Verne police officer Michael Burks, who was on patrol without a partner, happened to be in the Stein Mart parking lot when Palmer hastily departed from the store. Palmer was no longer wearing the bandanna over his face. When Palmer saw Burks, Palmer entered a dark-colored Mazda. As Palmer was backing out, Burks received a radio call regarding the robbery. Because the description of the robber matched Palmer's appearance, Burks drove behind the Mazda and activated the patrol car's lights. Palmer "almost instantaneously" stopped the Mazda. As Burks was exiting his patrol car, Palmer suddenly stepped out of the driver's seat, swiveled around with the gun, and fired a shot at Burks. Burks dove behind his open car door, pivoting on and breaking his ankle in the process.⁴ A bullet hit the patrol vehicle's driver's side mirror. Burks fired approximately 10 shots at Palmer, but struck the pavement because he was unable to aim due to his ankle injury. Palmer drove from the scene. Burks notified a police dispatcher of a portion of Palmer's license plate.

Palmer sped down Foothill Boulevard, committing various traffic violations and accelerating to speeds up to 100 miles per hour. Travis Bauer, an off-duty police officer for the City of Covina, observed Palmer's driving. He followed Palmer and telephoned police. Eventually Palmer crashed into a chain link fence. Bauer approached Palmer's vehicle to determine whether anyone was hurt. Palmer emerged from the driver's side and fled, eluding authorities.

The Mazda was determined to belong to Palmer's girlfriend, Sonja Edwards. Edwards reported the car as stolen approximately one hour after the crash. In the Mazda, officers discovered, among other things, an employee identification card bearing Palmer's name and photograph, and a roll of film that, when developed, contained a photograph of Palmer. Eight hundred dollars, the same amount taken from the Stein Mart store, was also discovered in the car. The first four digits of the vehicle's license plate corresponded to those reported to the dispatcher by Officer Burks. The vehicle's airbags had deployed during the crash, and Palmer was the "major donor" of DNA found on the driver's side airbag, suggesting he was the person who was struck by the airbag during the collision. Edwards told police that Palmer owned a white beanie with a star logo embroidered on the front.

B. Procedure.

Trial was by jury. Palmer was convicted of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)); assault on a peace officer with a semiautomatic firearm (§ 245, subd.(d)(2)); and three counts of second degree robbery (§ 211). The jury further found true allegations that Palmer attempted to murder a peace officer engaged in the performance of his duties; personally and intentionally used and discharged a firearm during commission of the attempted murder and assault, proximately causing great bodily injury (§ 12022.53, subds.(b), (c), (d)); and personally used a firearm during commission of the robberies (§ 12022.53, subd. (b)). In a bifurcated proceeding, the trial court found true allegations that Palmer had suffered three prior serious or violent felonies (§§ 667, subd. (a)(1); 667, subds. (b)-(i); 1170.12, subds. (a)-(d).) The trial court sentenced Palmer to a term of 155 years to life in prison, and imposed a $10,000 restitution fine and a stayed parole revocation fine in the same amount. Palmer appeals.

III. DISCUSSION

A. Issues related to the section 12022.53, subdivision (d) enhancements.

As noted, Palmer's sentence was enhanced as a result of the jury's findings that he personally discharged a firearm, proximately causing great bodily injury to Officer Burks. Palmer challenges the jury's true findings on the section 12022.53, subdivision (d) enhancements on several bases. The premise underlying each of Palmer's claims is that Officer Burks dove for cover and broke his ankle in response to Palmer's act of pointing the gun, not discharging the gun. Therefore, he urges, the discharge was not a proximate cause of Burks's injury within the meaning of section 12022.53, subdivision (d). He also asserts that section 12022.53, subdivision (d) only applies when the victim's injury is "proximately caused by a discharged bullet," not when the injury was caused by the victim's evasive action. We reject Palmer's contentions.

1. Section 12022.53, subdivision (d)'s proximate cause and injury requirements.

Section 12022.53, also known as the "10-20-life" law (Assem. Bill No. 4 (1997-1998 Reg. Sess.)), was enacted in 1997 to substantially increase the penalties for using firearms in the commission of enumerated felonies, including, as relevant here, attempted murder and assault on a peace officer with a firearm. (§ 12022.53, subds.(a)(1), (7), (18); People v. Oates (2004) 32 Cal.4th 1048, 1052, 12 Cal.Rptr.3d 325, 88 P.3d 56; People v. Garcia (2002) 28 Cal.4th 1166, 1171, 124 Cal.Rptr.2d 464, 52 P.3d 648; People v. Martinez (1999) 76 Cal.App.4th 489, 493, 90 Cal.Rptr.2d 517; Stats. 1997, ch. 503, § 3.) The statute prescribes sentence enhancements (prison terms of 10 years, 20 years, and 25 years to life) for increasingly serious circumstances of firearm use. (People v. Oates, supra, at p. 1052, 12 Cal.Rptr.3d 325, 88 P.3d 56; People v. Martinez, supra, at p. 493, 90 Cal.Rptr.2d 517.) Section 12022.53, subdivision (b) requires imposition of an additional, consecutive term of 10 years when the defendant personally uses a firearm during commission of the crime. Subdivision (c) requires imposition of an additional, consecutive 20-year term when the defendant personally and intentionally discharges a firearm during commission of the crime. Subdivision (d), the provision at issue here, requires imposition of an additional, consecutive 25-years-to-life term when the defendant "personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice...." (§ 12022.53,...