People v. Welch

1

THE PEOPLE, Plaintiff and Respondent, v. KENNETH SCOTT WELCH, Defendant and Appellant.

D082220

California Court of Appeals, Fourth District, First Division

March 25, 2024

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of San Bernadino County, (Super. Ct. No. FVI17000756) Debra Harris, Judge.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, ACTING P. J.

Kenneth Scott Welch went on a three-day crime spree during which he fatally shot a man from his car, shot two other individuals in their vehicles while driving, robbed a gas station convenience store, and shot a deputy sheriff. Prior to trial, Welch pled guilty to two counts of being a felon in possession of a firearm (Pen Code,^[1] § 29800, subd. (a)(1); counts 6 &7). A jury convicted him of first degree murder (§ 187, subd. (a); count 1), attempted murder (§§ 664, 187, subd. (a); count 2), two counts of shooting at an occupied motor vehicle (§ 246; counts 3 and 4), and second degree robbery (§ 211; count 5). With respect to count 1, the jury found true the special allegation that the murder was intentional and perpetrated by discharging a firearm from a motor vehicle with the intent to inflict death (§ 190, subd. (a)(21)). On counts 1 through 4, the jury also found true that Welch intentionally and personally discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d); counts 1-4). Finally, as to count 2, the jury found true the special allegations that Welch acted willfully, deliberately, and with premeditation in the commission of the attempted murder and that said crime was directed at a peace officer.

The trial court sentenced Welch to an aggregate sentence of life without the possibility of parole, an indeterminate term of 115 years to life, and a determinate term of 11 years consisting of the following: (1) life without the possibility of parole on count 1; (2) 15 years to life on count 2; (3) seven years on count 3; (4) one year and eight months on count 4; (5) one year on count 5; (6) eight months each for counts 6 and 7; and (7) 25 years to life for each of the four firearm enhancement allegation. The trial court also imposed various fines and fees.

Welch asserts seven contentions of error on appeal.^[2] Specifically, he argues: (1) the trial court abused its discretion in denying his mistrial motion (2) the trial court erred by failing to instruct on the lesser included offense of voluntary manslaughter based on heat of passion; (3) the prosecution committed misconduct by inquiring about an appellate opinion given to Welch by his attorney that he then discussed with his mother on the telephone; (4) section 190.2, subdivision (a)(21) is unconstitutionally overbroad on its face and as applied in this case; (5) section 190.2, subdivision (a)(21) is unconstitutionally vague; (6) the trial court erred by not dismissing three of the four section 12022.53, subdivision (d) enhancements pursuant to section 1385, subdivision (c)(2)(B); and (7) if we find he forfeited claims 3 or 6, we must alternatively find his trial counsel provided ineffective assistance.

We conclude the trial court did not err and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Prosecution

A. March 14, 2017 Freeway Shootings

1. Count 3

On the evening of March 14, 2017, Victor H. was driving his Chevy Silverado truck on the 210 freeway from Fontana to San Bernadino. Traffic slowed, and a dark car pulled up even with his truck in the lane to his left. The driver, who Victor described as "a white person" with some beard growth, stretched his right arm out and pointed a handgun at Victor through the lowered passenger window. The man then started shooting, breaking Victor's driver's side window six or seven times. Bullets also passed through Victor's left forearm and grazed his abdomen. Victor pulled off the freeway and eventually was taken to a hospital where he was treated for about three hours and then released.

2. Count 4

On the same evening, Rosa Z., her friend Laura V., and her boyfriend, Alberto G., were driving back to California from Arizona on the 210 freeway. Rosa was driving, Laura was in the front passenger seat, and Alberto was in the rear passenger seat. Suddenly, Alberto's phone, which had been sitting on the rear passenger door armrest, "exploded." A few seconds later, Alberto said, "I think I got shot" and then pointed to a car and said, "It was that car. So step on it."

Rosa sped up and the other car moved to her left and pulled up next to her. She described the car as dark with paper license plates and said the driver was a white male who was wearing glasses. The driver pulled out a handgun and pointed it at them, and Rosa immediately slammed on her brakes. The other car kept driving and exited the freeway. Rosa believed the driver shot at them several times.

Laura called 911, and they pulled to the side of the road. Rosa saw that a bullet had passed through Alberto's upper right thigh. As a result of his injuries, Alberto was out of work for two years.

B. March 15, 2017 Murder (Count 1)

Valerie H. lived in San Bernadino with her three children, their father, and his uncle, Mario F. On the morning of March 15, 2017, Mario drove his nephew to work in Rialto. Valerie and her eighteen-month-old son rode along. After dropping off his nephew, Mario took the 210 freeway and then exited to head toward home. As they approached their apartment complex, Valerie noticed that her uncle^[3] passed the first gate to their building and said, "Oh, you're going to pass it." In response, Mario told her, "I think we are getting followed or something."

They looped around the block and returned to the entrance to their complex, at which point Mario pulled over to the right side of the road. The dark car that was following them pulled up behind Mario's car.

Mario told Valerie he was going to see what the person in the dark car wanted and then got out and walked back toward the other car. According to Valerie, Mario did not have a weapon and was not holding anything. The dark car pulled forward toward him and, as Valerie watched through the back window, she saw the driver of the car that was less than 15 feet from her reach behind the seat and grab something.

After the car pulled up next to Mario, Valerie saw him look down through the car's front passenger side window. She knew her uncle was upset that they were being followed but said Mario did not say anything to the driver. She also did not see the driver say anything to him and said she did not believe there was enough time for them to exchange any words. Seconds later, she heard a gunshot and saw Mario fly back and fall to the ground. The driver then drove away.^[4] Valerie carried her son over and touched Mario's chest to check for a heartbeat. She then tried to walk to the opposite side of the street but said she could not feel her legs and had to crawl over to the curb with her son on her hip. She later provided the police with a description and partial license plate number.

Meanwhile, R.H. was standing just inside her front door across the street and was looking out the window when Mario pulled up followed by the other car. She saw a man get out of the first car and walk quickly toward the other car behind him. She said he did not have anything in his hands. As he approached the other car, R.H. thought the man might have put his arms up as if to say, "what's up, or what's going on," but she was not sure. She also did not know for certain if they talked to each other because she was on the telephone at the time. However, she said it did not seem like they were fighting. She then heard a gunshot and saw the man fall. She described the whole incident as having happened "so fast" and said the time from when the man went to the car to when she heard the gunshot was "almost immediately."

R.H. confirmed that the other car pulled away right afterward. A woman then got out of the front car with a child and hopped in a red car that had pulled up. She said they drove away but then came right back. C. March 16, 2017 Robbery (Count 5) and Attempted Murder (Count 2)

Several days prior to the robbery and shooting charged in counts 2 and 5, the manager of a Chevron gas station recalled seeing Welch purchasing sodas and flirting with a cashier. Welch tried several times to pay with his credit card, but it did not work, so eventually another customer paid for the items.

On March 15, 2017, Welch came to the store to buy cigarettes and paid cash. He returned just before midnight and requested to purchase a vape device, vape batteries, vape juice, and a phone charging cable. After the attendant placed the items on the counter, Welch took them and started to walk away. The attendant told him he had to pay, to which Welch responded, "No. I don't pay nothing." The attendant asked him repeatedly to return the items or pay for them, but Welch refused, tried to hit him, and then walked away, at which point the attendant said he was going to call the police. Before leaving, Welch responded, "Fuck you and fuck the police" and warned "I'm going to come back for you." The attendant saw Welch get into a black Chrysler and leave.

He then called 911 and Deputy Higgins responded. The attendant explained what had happened and showed the officer the video.^[5] After the deputy left, the black Chrysler returned and parked in front of the entrance. The attendant pressed the emergency button. Another employee, who was...