P. v. Deere

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Filed 2/27/09 P. v. Deere CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ARTHUR RAY DEERE, SR.,
Defendant and Appellant.
E044300
(Super.Ct.No. BLF003311)
OPINION
APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge.
(Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Affirmed.
George O. Benton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, William

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M. Wood, and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Arthur Ray Deere, Sr., appeals his conviction for attempted murder and
other offenses. He contends that the court committed reversible error when it denied his
motion for acquittal, arguing that there was insufficient credible evidence that he
harbored the intent to kill, and that it committed reversible instructional error pertaining
to specific intent as well. Finding no error, we affirm.
PROCEDURAL HISTORY
Defendant was charged with one count of deliberate, premeditated attempted
murder (Pen. Code,1 §§ 664, 187, subd. (a); count I); assault with a firearm (§ 245, subd.
(a)(2); count II); possession of a firearm by a felon (§ 12021, subd. (a); count III); and
possession of stolen property (§ 496, subd. (a); count IV). In connection with the
attempted murder charge, the information alleged that defendant personally used a
firearm and intentionally discharged a firearm. (§§ 1192.7, subd. (c)(8), 1203.06, subd.
(a)(1), 12022.53, subd. (c), 12022.5, subd. (a).) (An additional firearm use allegation,
under section 12022.53, subdivision (e)(1), was stricken on motion of the prosecutor.) As
to the assault charge, the information alleged that defendant personally used a firearm.
(§§ 1192.7, subd. (c)(8), 12022.5, subd. (a).) Finally, the information alleged that
defendant had three prior serious felony convictions and three prior strike convictions.
(§§ 667, subds. (a), (c), (e)(1), 1170.12, subd. (c)(1).)
1 All statutory citations refer to the Penal Code.

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Defendant admitted the prior conviction element as to count III, and the court
struck the firearm use allegation under section 12022.5, subdivision (a) as to count I. The
jury convicted defendant on all counts, but deadlocked on the deliberation and
premeditation allegation. A mistrial was declared as to that allegation, and it was later
dismissed. The jury also found the firearm allegations true as to counts I and II. In a
bifurcated trial, the court found the prior conviction allegations true.
The court sentenced defendant to seven years to life on count I, with a term of 40
years to life for the firearm discharge enhancement and 10-year terms for each of the
three prior serious felony convictions. Terms of 25 years to life on count II and on the
associated firearm use enhancement were imposed and stayed pursuant to section 654.
Terms of 25 years to life were imposed on counts III and IV, to run concurrently with the
term on count I. Defendant filed a timely notice of appeal.
FACTS
For purposes of the charge of unlawful possession of a firearm, defendant
stipulated that he had a prior felony conviction. On October 13, 2004, at the time of the
incident which resulted in his current conviction, defendant was in possession of items
stolen in a residential burglary which was committed the day before. On the night of
October 13, 2004, defendant was riding in a car when he realized that the police were
following the vehicle. He had been told by a family member that the police had raided his

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mother‟s house a day or so earlier, and he had “been running ever since.”2 He was armed
with a .22-caliber pistol “for protection.” His goal was not to get caught, “[w]hatever it
cost.”
Defendant ordered the driver to stop the car. He removed the gun from his
waistband and removed the safety. He got out of the car and ran into an alfalfa field.3
Riverside Sheriff‟s Deputy Phipps, who had stopped the vehicle, tracked defendant with
his spotlight as he ran into the field. He saw defendant fall, but did not hear defendant‟s
gun discharge.4 Phipps learned defendant‟s name from the driver. He recognized the
name as that of a person wanted for a parole violation and as a burglary suspect. Phipps
radioed for assistance in setting up a perimeter around the field.
Other sheriff‟s units arrived within the next few minutes. Sergeant Miller, who
had responded to the call, called for a border patrol canine unit to assist in locating
defendant. Border Patrol Agent Supervisor Altamirano responded with his dog.
Altamirano and the dog went into the field, with Miller following as backup. After
jogging a few steps into the field, Altamirano heard a gunshot, which sounded close. He
dropped to the ground and shouted, “Shots fired.” Miller heard the shot and saw a
2 The quoted material in this paragraph is derived from defendant‟s interview with
police after his arrest, as described by the officer who conducted the interview.
3 These events took place in a county area near Blythe.
4 In his subsequent in-custody interview, defendant said that his gun discharged
when he tripped and fell.

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horizontal muzzle flash in the direction of Altamirano. Miller broadcast that a shot had
been fired, and shouted commands for the shooter to surrender. Miller then approached
the location from which the muzzle flash had emanated and discovered defendant lying
prone with his arms outstretched. As Miller was handcuffing defendant, he saw a .22-
caliber pistol on the ground a few feet from defendant‟s left hand. Defendant was 10 to
20 feet from where Altamirano had been when the shot was fired. At the time the shot
was fired, Altamirano was silhouetted in the lights of Miller‟s vehicle, making him an
easy target for someone in defendant‟s position.
The pistol‟s safety was off when it was retrieved from the field. The pistol had
nine rounds in its 10-round magazine. An expended shell was in the firing chamber,
which indicated that the gun had jammed when it was fired. It could not fire again until
the jam was cleared.
LEGAL ANALYSIS
DEFENDANT‟S MOTION FOR ACQUITTAL WAS PROPERLY DENIED
The purpose of a motion for acquittal, under section 1118.1, is to “„weed out as
soon as possible those few instances in which the prosecution fails to make even a prima
facie case.‟ [Citations.]” (People v. Stevens (2007) 41 Cal.4th 182, 200.) In ruling on
the motion, the trial court must determine whether there is sufficient evidence to present
the matter to the jury. (Ibid.) We review the issue de novo. (Ibid.) The trial court and
the reviewing court apply the same standard, “„that is, “whether from the evidence,

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including all reasonable inferences to be drawn therefrom, there is any substantial
evidence of the existence of each element of the offense charged.”‟ [Citation.]” (Ibid.)5
Defendant contends that the court was required to grant his motion for acquittal
because the testimony of Sergeant Miller and Agent Altamirano was insufficient to
establish beyond a reasonable doubt that defendant knew where Altamirano was standing
when he fired the shot or that the shot was actually fired in Altamirano‟s direction. He
carefully parses their testimony and demonstrates that neither man could say with
certainty the direction in which the shot was fired. He concludes by saying that “[T]he
best prosecution evidence is as consistent with the inference that [the shot] was [fired] by
chance, with the intent to scare off or distract his pursuers, as with the inference that he
intended to kill.” That sentence alone is sufficient to demonstrate the flaw in the
argument. Substantial evidence review requires us to view the evidence as a whole, in the
light most favorable to the judgment, and to draw all reasonable inferences which could
be drawn in support of the judgment. (People v. Smith (2005) 37 Cal.4th 733, 742
(Smith).) We do not weigh the evidence or determine which one of multiple conflicting
inferences is stronger or more credible. Rather, if one of several inferences supported by
the evidence would suffice to support a guilty verdict, we must uphold the judgment.
(People v. Bean (1988) 46 Cal.3d 919, 932-933.) Because defendant concedes that one
5 Defendant argues that the trial court appeared not to understand that the evidence
must be sufficient to support the necessary factual findings beyond a reasonable doubt.
Because we review the sufficiency of the evidence independently, we are not concerned
with the basis for the trial court‟s ruling.

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possible inference supported by the evidence is that he acted with the intent to kill, we
need not address his argument. Nevertheless, we will briefly discuss the evidence which
supports the inference that defendant intended to kill.
Intent to kill may be inferred “from all the circumstances of the attempt, including
the putative killer‟s actions and words.” (People v. Lashley (1991) 1 Cal.App.4th 938,
945-946; see also Smith, supra, 37 Cal.4th at pp. 740-742.) Defendant was a convicted
felon. He had in his possession property which was stolen from a residence the day
before. He knew that his mother‟s house had been “raided” the day before, and when he
realized that the car in which he was riding was about to be stopped by Deputy Phipps, he
took his gun from his waistband and removed the safety. He stated that his sole goal was
to avoid being caught “[w]hatever it cost.” His freedom and safety were all that mattered
to him; everything else was irrelevant. He said that if the police fired at him, “it would
have been a free-for-all” and that he would have “shot dead-on, even though it was the
cops.” He said that “once you get to a point, you might as well say fuck it,” and that that
night, he did say “fuck it.” He said that when Miller fired at him, he was “mad as a
mother fucker” and that if his gun hadn‟t jammed, “it would have been on” and that he
would have fired toward the sound of the shots. These actions, words and circumstances
reasonably support the conclusion that defendant acted with the intent to kill.
Defendant contends that other statements he made after his arrest support the
inference that he did not intend to kill. He points to his statements that he did not want to
be the aggressor and did not want to ambush the officers, that he did not see Altamirano

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and that he did not shoot at the “cops.” The jury is not, however, required to accept or
reject a witness‟s statements in their entirety; it may believe some statements while
rejecting others. (People v. Wickersham (1982) 32 Cal.3d 307, 328, disapproved on other
grounds in People v. Barton (1995) 12 Cal.4th 186, 201.) Defendant also asserted that his
gun discharged accidentally when he fell and that when he was lying on the ground
knowing the dogs and the officers were coming, he fired two shots into the ground to
“distract” them, hoping it would buy him time to escape. These statements were belied by
the physical evidence, which showed that defendant‟s gun was fired only once: Only one
bullet was missing from the 10-round magazine, and that bullet was lodged in the firing
chamber. The gun could not be fired again until the jammed bullet was removed. This is
consistent with the testimony of Deputy Phipps, who saw defendant fall but did not hear a
shot fired at that time, and with the testimony of Miller and Altamirano, each of whom
heard only a single shot when they were approaching defendant‟s location in the field.
Defendant‟s demonstrably false statements could reasonably cause jurors to conclude that
defendant was also lying about not having shot at Altamirano and that in fact he did fire
the single shot toward where he believed Altamirano was.
Taken all together, the evidence permits the inference that defendant actually shot
at Altamirano with the intention to kill in order to facilitate the only outcome that was
acceptable to him: to escape capture. Defendant‟s statements that his freedom and safety
were all that mattered, that everything else was irrelevant, and that he just said “fuck it”
(which inferably indicates indifference to the consequences of his efforts to avoid capture

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and suggests that he was willing to kill to achieve that goal) all support the inference that
despite his claims to the contrary, defendant shot at the officer with the intent to kill.
That other inferences are possible is irrelevant. (People v. Bean, supra, 46 Cal.3d at pp.
932-933.)
Defendant also appears to argue that the evidence was insufficient as a matter of
law to support a finding that he acted with the intent to kill. Citing People v. Ratliff
(1986) 41 Cal.3d 675, 695, he asserts that the intent to kill cannot be presumed from the
aiming and firing of a gun. We agree that the act of aiming and firing a gun is not
necessarily sufficient, as a matter of law, to compel the conclusion that the defendant
intended to kill, which is what we understand the court to be saying in People v. Ratliff,
supra, at page 695. Additional circumstances supported by the evidence may, however,
permit that conclusion. As the California Supreme Court discussed more fully in Smith,
supra, 37 Cal.4th 733, intent to kill is often inferred from all of the circumstances of the
crime. (Id. at pp. 740-742.) In Smith, the court stated that firing at a victim at close range
in a manner that could have resulted in a mortal wound if the bullet had been on target is
sufficient to support the inference that the defendant acted with the intent to kill. (Id. at p.
741, quoting People v. Lashley, supra, 1 Cal.App.4th at p. 945, and People v. Chinchilla
(1997) 52 Cal.App.4th 683, 690.) In this case, as we have discussed, there was additional
evidence which, taken all together, supports the conclusion that defendant shot toward
Altamirano‟s position with the intent to kill him.

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We also note that the fact that the evidence suggests that defendant did not actually
see Altamirano does not render the evidence insufficient to support the conclusion that he
shot with the intent to kill. Defendant stated that just before he fired—into the ground, as
he described it—he could hear people walking toward him and talking, and that he knew
“it was the cops.” Jurors could reasonably infer that he shot in the direction of the voices,
or one of them, with the hope that the bullet would find and kill one of the targets.
Because the evidence reasonably supports the inference that defendant intended to
kill when he fired the shot described by Altamirano and Miller, the court did not err by
denying the motion for acquittal.
THE COURT ADEQUATELY ADDRESSED QUESTIONS POSED BY THE JURY
Defendant contends that the court failed to respond adequately to a question from
the jury concerning whether intent is automatically inferred from the act of firing at an
officer. He contends that the court‟s response effectively allowed jurors to conclude that
a conclusive presumption of intent to kill arises from the act of aiming and firing a gun.
The Attorney General responds that the jury‟s question was factual in nature and that the
court‟s response was appropriate.
The issue arose as follows. During deliberations, the jury requested “clarification
on „intent.‟” The court responded in writing, directing the jury to several pertinent jury

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instructions.6 Later the same day, the jury asked, “If an action is a „rash response‟ can it
still be considered „intent?‟”
The court perceived the question as a factual one, rather than a legal one. Defense
counsel did not disagree. The court had the jury return to the courtroom. After some
colloquy which is not pertinent to the issue before us, the court addressed the jury‟s
concerns about “rashness” and intent:
“Juror No. 12: I think it‟s more of the rash, [sic] meaning the time frame involved
in making that decision and the sequence of events. Was it spur of the moment? I think
as far as rash, that part of the consideration would be the time. Split second? Or two
minutes? And you know what I mean.
“The Court: Okay. That [is] covered in the instruction . . . on deliberation and
premeditation. . . . [¶] . . . [¶]
“The Foreperson: Your honor, we had a question about intent being in the count
itself, and then premeditation, deliberation being in right underneath it in the next section.
“The Court: Yes.
“The Foreperson: So we didn‟t understand the relationship between
. . . deliberation, premeditation as it relates to intent; we didn‟t know . . . what that
connection was.
6 For some reason, it omitted reference to Judicial Council of California Criminal
Jury Instructions, CALCRIM No. 225, which discusses proof of intent by means of
circumstantial evidence.

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“The Court: Well, any attempted murder requires a specific intent to kill. And all
crimes, for our purposes, require an action and an intent. So at the time of the action,
there has to be an intent as defined by the law. So that‟s one question. [¶] So if . . . a
juror, for example, said, okay, there was an action; to wit: aiming a gun and pulling the
trigger, and at that time, whomever it might have been, intended . . . another person to die,
in other words, I intend to kill that person, that‟s one issue. [¶] And . . . don‟t read
anything into what I‟m saying. Okay. „Cause . . . I am not making any findings on facts.
[¶] But if . . . a juror said, okay, there was an intent, then and only then do you go to the
next question as to whether or not there was premeditation and deliberation.”
After some further discussion of premeditation and deliberation, which is not
pertinent to our issue, the foreperson asked, “[W]hat we are stuck on is, if you fire at an
officer, does that automatically mean intent? [¶] . . . [¶] How could you not have intent,
is where we‟re stuck. [¶] . . . [¶] You can‟t answer that, can you?” The court replied,
“No. I could give you lots of answers, and they would all create a problem.” The
foreperson responded, “Yeah, we were hoping you could just solve ours.” The court
responded by saying that the jury takes care of all factual issues, while the court takes
care of the legal issues. After some discussion off the record, the court had the jury return
to the jury room for further deliberations. Following this colloquy, the court asked if
counsel had any comment. Defense counsel had none.
Section 1138 imposes upon the trial court a duty to provide the jury “with
information the jury desires on points of law.” (People v. Smithey (1999) 20 Cal.4th 936,

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985, fn. omitted.) On the other hand, the court may not provide direction as to how the
jury should decide questions of fact if by doing so it “„“usurp[s] the jury‟s exclusive
function as the arbiter of questions of fact and the credibility of witnesses.” [Citation.]‟
[Citation.]” (People v. Sanders (1995) 11 Cal.4th 475, 531.) Although the court “has a
primary duty to help the jury understand the legal principles it is asked to apply,” the
court has discretion under section 1138 to determine what additional explanation, if any,
will be sufficient to satisfy the jury‟s request for information. (People v. Beardslee
(1991) 53 Cal.3d 68, 97.) Thus, while the court necessarily abuses its discretion if it fails
to consider giving a further explanation in response to a jury question, it need not
elaborate on the standard instructions if it considers the request and concludes that the
instructions adequately convey the information the jury is seeking. (Ibid.)
Although the thrust of the foreperson‟s two questions is not all together clear, the
first question certainly appears to ask, as defendant contends, whether the law required it
find intent to kill from the bare fact of firing a gun at an officer. However, the question
“How could you not have intent” under those circumstances appears to indicate, as the
Attorney General asserts, that some jurors, at least, believed as a factual matter that a
person who takes aim at another person and fires does intend to kill. While we agree with
defendant that ideally the court should have responded to the implicit legal question by
telling the jury that it was not required, as a matter of law, to find the existence of intent
to kill from the bare facts that defendant shot at the officer (assuming that the jury did
find that he intentionally shot at the officer), we do not agree that by failing to do so, the

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court left the jury with the erroneous impression that such a conclusion was compelled by
operation of law.
In reviewing a claim of instructional error, we consider the jury instructions as a
whole, and we consider each instruction in the context of the entire charge to the jury.
(People v. Haskett (1990) 52 Cal.3d 210, 235; People v. Dieguez (2001) 89 Cal.App.4th
266, 276.) We will reverse a conviction only if there is a reasonable likelihood that, in
the context of the instructions as a whole, the jury understood the court‟s explanation as
the defendant asserts. (People v. Kelly (1992) 1 Cal.4th 495, 525-526.) Here, during the
same colloquy in which the foreperson asked the questions which are at issue, the court
had explained to the jury that before addressing the question of deliberation and
premeditation, the jury must first decide if the shooter had the intent to kill when he
aimed the gun and pulled the trigger. The court explained that only if the jury found that
there was such an intent would it go on to determine whether the shooting was deliberate
and premeditated. Then, in response to the question at issue on appeal, the court
reiterated that intent is a factual question which was solely up to the jury to determine.
Under the circumstances, we conclude that the court‟s response was adequate to dispel
any notion the jurors might have that they were compelled to reach any particular
conclusion on the issue of intent as a matter of law, and that there is no reasonable
probability that any of the jurors were left with the impression that they were required to
reach any particular conclusion. Accordingly, reversal of defendant‟s conviction is not
required. (Ibid.)

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Because we have concluded that the instructions and the court‟s explanation
adequately informed the jury of the standards it was to apply to determine whether
defendant acted with the specific intent to kill, we reject defendant‟s contention that his
trial attorney‟s failure to request an additional explanation or clarification constituted
ineffective assistance of counsel.7
7 In Strickland v. Washington (1984) 466 U.S. 668, the United States Supreme
Court held that a criminal defendant has a constitutional right to the effective assistance
of trial counsel. To prevail on a claim of ineffective assistance, the defendant must show
that his attorney failed to act in a manner within the range of competence demanded of
attorneys in criminal cases and that the defendant was prejudiced by counsel‟s act or
omission. (Id. at pp. 687-688.) To establish prejudice, the defendant must show a
reasonable probability that the outcome of the trial would have been more favorable in
absence of the error or omission. (Id. at p. 694.) Because both prongs are necessary to
finding that the defendant was deprived of his constitutional right to effective assistance
of trial counsel, a claim of ineffective assistance of counsel may be rejected if the
defendant fails to establish prejudice, without regard to whether counsel‟s performance
met objective standards of competence. (Id. at p. 697.) The same standard applies under
the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Ramirez
P.J.
/s/ King
J.

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