Filed 6/20/22 P. v. Smith CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080233
Plaintiff and Respondent,
(Super. Ct. No. F17903429)
v.
BRIAN ANDREW SMITH, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Alvin M.
Harrell, III, Judge.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A.
Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Brian Andrew Smith was convicted by jury of murder after he shot and killed a
man. On appeal, he claims instructional errors undermine the conviction. We affirm.
BACKGROUND
Charges
The Fresno County District Attorney charged Smith with one crime: murder.
(Pen. Code,1 § 187.) The charge included allegations Smith used a firearm in committing
murder. (§§ 12022.53, subd. (d), 12022.5, subd. (a).)
Evidence
A woman testified Smith came to her residence while “intoxicated.” She later
heard an argument outside her home followed by a gunshot. When she looked outside,
she saw Smith and then his vehicle “speeding away ….”
Several hours later, a man’s body was found in a vineyard. The coroner
determined a single gunshot wound to the head killed the man. The wound suggested the
gun was fired while in contact with the skin. The manner of death was homicide; suicide
was “nearly impossible.”
An investigation led to Smith. He was detained and interviewed. He initially
denied any involvement in the victim’s death. He revised his statement and explained he
actually was with the victim but the victim committed suicide.
At trial, Smith testified he accidentally killed the victim. He explained he went to
his friend’s house and was “smoking … weed” and “drinking beer” when the victim
arrived. While Smith, the victim, and Smith’s friend were all outside, the friend started
playing with Smith’s gun.
Later, when Smith wanted to leave, he tried to take the gun from his friend but the
friend “just kept playing around with it.” Smith eventually grabbed the gun but it fired,
killing the nearby victim. He denied alcohol caused the gun to discharge.
1 Undesignated statutory references are to the Penal Code.
2.
Smith was “scared” and did not know how to respond. He placed the victim’s
body “in the back seat of [his] car” and “took off.” He was intoxicated and drove around
until he ended up at a vineyard. He ultimately left the victim’s body in the vineyard.
Verdict and Sentence
Smith was convicted of second degree murder. The firearm allegations were
found true. He was sentenced to serve 40 years to life in prison.
DISCUSSION
Smith raises two instructional errors to challenge his conviction. One, did the
court err by not instructing the jury with CALCRIM No. 625 which explains how
voluntary intoxication interacts with the mental states relative to murder? Two, did the
court err by not instructing the jury Smith’s friend was an accomplice to the crime,
necessitating a need to corroborate his testimony? (See CALCRIM No. 334; § 1111.)
We find no errors and affirm the judgment.
I. Voluntary Intoxication
CALCRIM No 625 is entitled “Voluntary Intoxication: Effects on Homicide
Crimes (Pen. Code, § 29.4).” It explains voluntary intoxication is relevant “in deciding
whether the defendant acted with an intent to kill ….” Smith asserts “[t]he trial court
erred when it failed to instruct the jury about voluntary intoxication and its potential to
negate intent to kill ….”2 Alternatively, he blames counsel for “not requesting the
instructions when it is without dispute that Smith was intoxicated at the time of the
offense.”
The People counter “the trial court had no sua sponte duty to provide any such
instruction.” They also claim any error was harmless and Smith’s counsel was not
ineffective. We find no error.
2 Smith extends this argument to CALCRIM No. 763. CALCRIM No. 763 applies
to death penalty cases. It has no application in this case.
3.
“Evidence of voluntary intoxication is generally admissible on the issue of
whether a defendant formed the specific intent required for the crime charged .”
(People v. Bedolla (2018) 28 Cal.App.5th 535, 541–542.) “ ‘[A] defendant is entitled to
such an instruction only when there is substantial evidence of the defendant’s voluntary
intoxication and the intoxication affected the defendant’s “actual formation of specific
intent.” ’ ” (People v. Verdugo (2010) 50 Cal.4th 263, 295 (Verdugo).)
“ ‘[T]o establish a claim of ineffective assistance of counsel, [Smith] bears the
burden of demonstrating, first, that counsel’s performance was deficient because it “fell
below an objective standard of reasonableness [¶] ... under prevailing professional
norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that
“counsel’s performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial strategy.”
[Citation.] If the record “sheds no light on why counsel acted or failed to act in the
manner challenged,” an appellate claim of ineffective assistance of counsel must be
rejected “unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the
burden of establishing that counsel’s performance was deficient, he or she also must
show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” ’ ” (People v. Bell (2019) 7 Cal.5th 70, 125.)
At the outset, we reject the suggestion the trial court erred in not instructing the
jury with CALCRIM No. 625. “It is well settled that ‘[a]n instruction on the significance
of voluntary intoxication is a ‘pinpoint’ instruction that the trial court is not required to
give unless requested by the defendant.’ ”3 (Verdugo, supra, 50 Cal.4th at p. 295.)
3 Smith urges to reconsider this precedent. We decline the invitation.
4.
As to whether Smith’s counsel failed in requesting CALCRIM No. 625, we
similarly reject the contention. There was no evidence intoxication affected Smith’s
actual intent. (Verdugo, supra, 50 Cal.4th at p. 295.)
Perhaps more importantly, Smith specifically disclaimed intoxication was relevant
to shooting the victim. Instead, he testified the shooting was accidental. Intoxication was
inconsistent with and irrelevant to Smith’s testimony describing the shooting. For these
reasons, counsel could reasonably conclude an involuntary intoxication defense was ill-
advised.4 Smith has failed to demonstrate otherwise and the ineffective assistance claim
fails.5
II. Accomplice Corroboration
CALCRIM No. 334 explains to jurors they must first d ecide whether a person is
an accomplice to a crime. If the jury concludes the person is an accomplice, it cannot
find the defendant guilty based on the accomplice’s statements or testimony alone.
4
Smith also claims voluntary intoxication was relevant to explain to the jury why
his pretrial statements and actual testimony were inconsistent. As we understand the
argument, he means his memory is vague because he was intoxicated when he killed the
victim, resulting in different descriptions on different dates, i.e., the pretrial interview and
the trial testimony. Again, there was no request for a pinpoint instruction on voluntary
intoxication.
To the extent Smith would anchor this argument to ineffective assistance, we
would reject it. Both Smith and his counsel, respectively through testimony and
argument, addressed the inconsistent statements. Combined, they explained Smith was
“scared” during an interrogation by skillful investigators, resulting in a statement skewed
from the truth. Accordingly, this strategy rendered intoxication irrelevant. A reasonable
strategic choice is not ineffective assistance. (See People v. Olivas (2016) 248
Cal.App.4th, 758, 771 [“Though defendant argues on appeal that his trial counsel was
ineffective for failing to request a voluntary intoxication instruction, such a request would
have been inconsistent with the primary defense theory ….”].)
5
The People maintain the claim is forfeited. In general, they are correct. But we
choose to address the merits due to the ineffective assistance argument.
5.
Rather, the accomplice’s statements or testimony suffice as evidence only if
corroborated. (CALCRIM No. 334.)
Smith asserts “[t]he trial court had a sua sponte duty to instruct on the principles
governing the law of accomplices, including the need for corroboration, because the
evidence at trial suggested [Smith’s friend] could be an accomplice.” The People argue
the “claim lacks merit ….” We agree with the People.
Section 1111 provides in part: “A conviction can not be had upon the testimony
of an accomplice unless it be corroborated by such other evidence as shall tend to connect
the defendant with the commission of the offense; and the corroboration is not sufficient
if it merely shows the commission of the offense or the circumstances thereof.” 6 “[T]he
corroboration must connect the defendant to the crime independent of the accomplice’s
testimony.” (People v. Romero and Self (2015) 62 Cal.4th 1, 36 (Romero and Self).) It
need not, however, “corroborate every fact to which the accomplice testifies [citation],
and ‘ “ may be circumstantial or slight and entitled to little consideration when standing
alone ….” ’ ” (Id. at p. 32.)
The section 1111 corroboration requirement applies to any witness “who is liable
to prosecution for the identical offense charged against the defendant on trial ….”
(§ 1111.) “ ‘To be chargeable with an identical offense, a witness must be considered a
principal under section 31.’ ” (People v. Johnsen (2021) 10 Cal.5th 1116, 1155.) “In
other words, there must be evidence of that person’s ‘guilt … based on a combination of
the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state.’ ”
(Ibid.) “[T]he trial court” must “instruct on ‘the principles regarding accomplice
testimony’ ” “when there is ‘substantial evidence that a witness who has implicated the
defendant was an accomplice ….’ ” (Ibid.)
6Testimony within the meaning of section 1111 includes out-of-court statements
made to law enforcement investigators. (People v. Hoyt (2020) 8 Cal.5th 892, 946.)
6.
We conclude the claim lacks merit because any error is necessarily harmless. Put
simply, even if Smith’s friend were an accomplice,7 the friend’s statements and testimony
were corroborated by Smith’s own admissions to involvement in the shooting.
Section 1111 does not demand perfectly corroborating every incriminating word
uttered by an accomplice. It demands independent but slight connection to the crime.
(Romero and Self, supra, 62 Cal.4th at pp. 32 & 36.) There is no question Smith was
connected to the crime because he readily admitted he killed the victim. No reasonable
jury would have failed to find corroboration had the court instructed it with CALCRIM
No. 334. (People v. Anderson (2018) 5 Cal.5th 372, 411 [“ ‘Error of the kind [alleged] is
harmless if the record contains “sufficient corroborating evidence.” ’ ”].) The
instructional error claim fails.
DISPOSITION
The judgment is affirmed.
SNAUFFER, J.
WE CONCUR:
POOCHIGIAN, ACTING P. J.
FRANSON, J.
Frankly, we have no reason to believe Smith’s friend was an accomplice. The
7
argument is based entirely on speculation.
7.