Opinion
A157744
04-17-2020
THE PEOPLE, Plaintiff and Respondent, v. ALLAN HSU, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 18CR006065)
Appellant Allan Hsu appeals from a judgment of conviction following a jury trial at which the jury found him guilty of shooting at an occupied motor vehicle and assault with a firearm. His court-appointed counsel has filed a brief raising no legal issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel advised appellant of his opportunity to file a supplemental brief within 30 days advising the court of any arguable legal issues he believes the court should consider after briefing. Appellant has filed no such brief.
FACTS ELICITED AT TRIAL
The People's Case
The prosecution evidence regarding the events that led to the charged offenses consisted of the testimony of Vanessa Covington and Nicholas Soliz.
Covington admitted she had been convicted of felony grand theft from the person in 2007, felony petty theft in 2009, felony auto thefts in 2012, 2014, and 2016, and was on probation at the time of trial. She testified that the district attorney made no promises to her in exchange for her testimony against appellant. Soliz testified that in 2018, he was charged with misdemeanor theft and drug offenses and prosecution of those offenses had been deferred. He also stated that the district attorney offered no plea deal or other benefit in return for his testimony against appellant.
At 2:30 a.m. on March 30, 2018, Covington drove her SUV into the parking lot of a McDonald's restaurant at the corner of Fremont Boulevard and Decoto Road in the City of Fremont. Her boyfriend, Darnell Harrelson, was in the front passenger seat and Soliz, Harrelson's cousin, sat in the rear seat behind the front passenger. They went to the McDonald's to pick up a friend of Covington's who worked there, hoping she was working the drive-thru lane and would provide them with free food.
While they were sitting in the drive-thru lane in Covington's SUV, appellant pulled up behind them in his minivan "kind of wildly." When Covington said the minivan was uncomfortably close, Soliz got out of the SUV to "check it out." Appellant then also got out of his van and said "oh, did I hit you guys?" Soliz said he was trying to find that out and asked appellant, "[i]s there any reason why you are on our ass?' Deciding appellant's vehicle did not touch Covington's SUV, Soliz got back inside the vehicle. There was no fighting and the occupants didn't expect any further interaction.
However, after both vehicles moved forward in the drive-thru lane, Soliz got out of the SUV and resumed exchanging words with appellant. After Covington and Harrelson also left the vehicle and joined Soliz, appellant said, "Oh you guys are going to jump me, huh?" Covington replied, "we don't do that" and Harrelson added that, "If anything, we would go down the line," which according to Covington meant they would not all jump him at once but each engage him in a one-on-one fight. After this entirely verbal exchange, which Soliz said consumed about two minutes, Covington, Harrelson, and Soliz returned to the SUV thinking that was the end of it.
When the driver of the car in front of her moved to the window, received his order and left, Covington drove the SUV past the food delivery window without stopping, since her friend from whom they expected free food was not then "working the window," and backed the SUV into a stall in the parking lot. All three sat in the vehicle listening to music while waiting for Covington's friend to get off work. During this time, they saw appellant back his van out of the drive-thru lane and leave the premises. They thought this odd, but considering the verbal hostilities over, were not fearful. They did not follow appellant nor do anything to prepare for his return, which they did not anticipate.
About 5 or 10 minutes after he left, appellant returned to the McDonald's in his van. Soliz felt something might happen but did not initially feel threatened. However, when appellant pulled his van alongside the SUV with the passenger window facing the SUV, Soliz heard appellant shout something he did not understand, saw flashes, and heard 12 gunshots. Appellant was holding the steering wheel with his left hand, extending his right arm toward the open passenger window, and shooting into the SUV. Covington and Soliz jumped out of the vehicle. Covington hid behind the rear of the SUV and Soliz lay down beneath it. Harrelson stayed in the vehicle during the shooting, ducking down on the floor in front of his seat. Hearing the windows of the SUV shatter, Covington and Soliz felt appellant was trying to kill them.
After 10 to 30 seconds, the shooting stopped and appellant left. Covington immediately phoned her mother and told her to call the police and then called the police herself. Covington and Soliz each testified that they and Harrelson had done nothing giving appellant cause to think his life was in danger.
Fremont Police Officer Robert Gerber, the first officer who arrived at the scene, found Covington "hysterical" and Harrelson and Soliz highly agitated. All were pointing to the exit to Fremont Boulevard appellant had just used. None of them was injured and none of them possessed a weapon or seemed under the influence of alcohol or drugs. All were cooperative and gave Officer Gerber recorded statements. The hood of the SUV was riddled with bullet holes and the windshield was shattered. The SUV contained no weapons, drugs, paraphernalia, or alcohol.
The lead investigator, Detective Brent Butcher, testified that his team quickly found appellant's minivan, which was registered to his mother, in the driveway of her nearby house. He immediately noticed that it bore no bullet holes. Inside the vehicle, officers found a bullet casing that would fit a Glock 9 millimeter semi-automatic gun. In searching the room in his mother's house in which appellant slept, police recovered two handguns, a Glock 9 millimeter semi-automatic gun, a Sig Sauer firearm, and loaded magazines for those weapons, both of which were registered to appellant. An AR-15 semi-automatic rifle broken down into several parts was also found in the bedroom, but it was not registered to appellant.
Butcher examined Covington's SUV after it was towed to a police station and noted that it had been hit by 12 shots. Two entered the passenger side of the vehicle, three shattered the front windshield, and others penetrated the front and rear passenger areas. A bullet hole was also found in a pair of pants on the back seat that had been put there by Soliz.
The People introduced two photo exhibits depicting appellant firing the AR-15 at a shooting range prior to March 13, 2013. However, most photos found on appellant's Facebook pages did not show him with guns.
The Defense Case
Appellant's version of what happened at the McDonald's differed significantly in crucial respects from that of Covington and Soliz.
Testifying in his own defense, appellant stated that he had a bachelor's degree in sociology from the University of California, Irvine and was seeking full-time employment while residing in his parent's home and helping to care for his grandmother. Around 10:00 p.m. on the night of the incident, he consumed some marijuana edibles and watched Netflix until 2:15 in the morning, when he became hungry and drove to the McDonald's, about 10 minutes away. After placing his order, appellant pulled into the drive-thru lane behind an SUV to wait for delivery of the order.
A man appellant later learned was Soliz got out of the SUV and said he was too close, although in fact he was not, as Soliz had no trouble walking between the two vehicles. Nevertheless, not wanting to argue with Soliz, he simply said something like "my bad bro." Appellant stated that Soliz was wearing a hoodie and holding a weapon in his right hand. The headlights of his van were on and his view of the gun was clear when Soliz walked toward his vehicle. Although a surveillance video of the drive-thru lane confirmed appellant's general description of Soliz and that his van was not very close to the SUV, the video did not show that Soliz possessed a gun (a fact heavily emphasized by the district attorney in his closing argument).
Appellant testified that his Glock was next to his seat and loaded when he realized Soliz was armed but he did not reach for it because Soliz never pointed his gun at him or advanced in his direction. Appellant knew it was illegal to have a loaded gun in his car and admitted he should not have had it; however, he sometimes took the gun with him when he went out alone at night.
After Soliz returned to the SUV and it moved forward a little, appellant moved forward as well, but without getting too close. At that point, Covington and Harrelson jumped out of the SUV, as did Soliz a moment later. As they approached, appellant asked, "what's going on? Are y'all going to jump me?" Covington responded that "we don't do that around here," and Harrelson added that, "if anything, we are going to get you one-by-one going down the line, actually." Appellant interpreted this as meaning they would either each assault him physically or sexually.
When appellant did not respond, the three returned to the SUV and drove through the drive-thru lane without stopping to pick up any food. This seemed "fishy" to appellant, and he feared they would ambush him or return on foot. Feeling he would be too vulnerable if he stayed in the drive-thru lane, appellant backed out of the lane and left, which he considered a non-confrontational way to leave the premises. He said he then went to another McDonald's on Newark Boulevard, which was not far away. On the way, he Googled that McDonald's and learned it was closed, as were other McDonald's in the areas he Googled. Learning that the only McDonald's that was then open was in Hayward—which, given his hunger, was too long a trip—appellant decided to return to the McDonald's on Fremont Boulevard, at which he had encountered Covington, Harrelson, and Soliz, thinking they would by then have left.
When he returned to that McDonald's, he was surprised to find the SUV parked in the lot, with the same three occupants, and felt upset and "pissed." Deciding to stand up and complain to them about their threatening behavior and Soliz's brandishing of a gun, appellant pulled close to the side of the SUV because he wanted them to hear him; he stayed in his van for fear they would attack him if he stepped out. At first, appellant shouted "hey guys" to get their attention and tell them it was not "cool" to pick on people. This was important for appellant because he had been bullied all his life. However, immediately after he pulled alongside, Covington and Harrelson leapt out of the SUV and, with Soliz, approached him menacingly.
Appellant then saw Soliz reach into his waistband and, knowing he possessed a gun, suddenly feared for his life. He did not drive away because his minivan was slow and the others could catch him. His only alternative, appellant testified, was to disable the SUV. He then extended his right arm across the passenger seat toward the front of the SUV and emptied the magazine, taking care to aim at the center of the hood to disable the engine and allow him to safely escape.
Appellant acknowledged he was not then thinking clearly; it was very late, he was tired and hungry and still feeling the effects of the marijuana he had eaten. Appellant did not intend to kill anyone. If that were his purpose, he pointed out, he would have reloaded his gun with another magazine that was in the car, or have fired directly at the three instead of shooting at the hood to disable the vehicle. Referring to a photo of the SUV that showed bullet holes in the hood and three holes in the windshield, appellant said the holes in the windshield resulted from the recoil of his weapon that jerked the gun toward the windshield. Appellant was confident he would not kill anyone because he saw no occupants inside the car, his sole target. Also, during the last 8 years, he had visited a gun range about 12 times a year to improve his accuracy, which was demonstrated by the fact that he did not aim at or injure any of the occupants of the SUV. If any of the three had gone inside the SUV, he would have stopped shooting.
Appellant bought the Sig Sauer, Glock, and AR-15 guns found in his bedroom at an Orange County gun shop and registered the Sig Sauer and the Glock. The reason the AR-15 was not registered, he said, is that he bought it before registration was required.
PROCEEDINGS BELOW
On February 19, 2019, appellant was charged in an amended information charging six counts: The attempted murders of Soliz and Harrison (Pen. Code, §§ 187, subd. (a) & 664; counts 1 & 2), with enhancements for intentional discharge of a firearm (§ 12022.53 subd. (c)), and use of a firearm (§§ 12022.53, subds. (b), (g), & 12022.5 subd. (a)); shooting at an occupied motor vehicle (§ 246; count 3); and assaults on Soliz, Harrelson, and Covington with a firearm (§ 245, subd. (a)(2); counts 4, 5, & 6), with use of a firearm (§ 12022.5, subd. (a)).
All subsequent statutory references are to the Penal Code unless otherwise indicated.
Prior to the filing of the amended information, appellant filed a section 995 motion to dismiss the first three counts of the original information (which were substantially identical to counts one, two, and six of the amended information), which was denied.
Before the jury was empaneled, the People dismissed count 6, which charged an assault on Covington, with the use of a firearm. Also, after conducting an Evidence Code section 402 hearing, the court denied appellant's in limine motion objecting to admission of photographs taken from appellant's Facebook page showing him firing an AR-15 rifle at a gun range, on the ground this evidence was not relevant.
At the close of the People's case, appellant moved under section 1118.1 for judgment of acquittal based on insufficient evidence of the attempted murder charged in count 1. That request was denied.
During deliberations, the jury requested a dictionary. The court stated it could not grant the request but asked what was the word or words jurors wanted defined. The jury answered that the words were "direct," "indirectly," "could," "would," "unambiguous," and "ambiguous." After discussing the situation with counsel, the court quoted CALCRIM No. 200 ("words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings"). However, over appellant's objection, the court also defined the words of concern to the jury.
The jury returned verdicts of not guilty of counts 1 and 2, charging attempted murder of Soliz and Harrelson (and not guilty of the lesser included offenses of attempted voluntary manslaughter), but guilty of count 3, shooting at an occupied motor vehicle, and count 5, assault with a firearm on Harrelson and that appellant personally used a firearm within the meaning of sections 12022.5, subdivision (a).
The People requested a 14-year state prison term and appellant requested 6 years.
Noting appellant was ineligible for probation absent unusual circumstances (§ 1203, subd. (2)), the court stated that there were no such circumstances and that it would not grant probation even if appellant were eligible. After finding that neither the aggravating nor mitigating factors outweighed the other, the court imposed the midterm of three years for count 5, assault with a firearm, and, consecutive to that, the four-year midterm for the use of a firearm enhancement, for a total term of seven years. (The court selected the five-year midterm for count 3, the shooting of an occupied vehicle, but stayed that term pursuant to section 654.)
The aggravating factors the court found were that appellant's testimony that he had a firearm in his van at the time of the initial interchange with Soliz was not credible. The court believed that after that interchange, appellant "rushed home, got the gun, and came back with the intention of assaulting those people." On the other hand, the court also found that the victims were "jerks" and not "vulnerable" within the meaning of the sentencing rules, and "thought they would have a good time and pick on [appellant]," though their provocation did not warrant appellant's conduct. Additionally, the court stated, appellant did not engage in the level of planning contemplated by the rules. --------
DISCUSSION
A.
As noted, after conducting a hearing under Evidence Code section 402, the court overruled appellant's objection to the introduction by the prosecution of two photos showing appellant firing an AR-15 rifle at a shooting range, which he had argued was irrelevant. Appellant's claim was that whether he "went to a gun range and fired a rifle five years [ago] does not prove or disprove any point that's in dispute." The Facebook photos, as well as the comments of appellant attached to them, were "highly prejudicial," counsel said, because they made appellant look like a "gun nut." After the prosecutor stipulated to redaction of appellant's comments about guns on the Facebook page, the court concluded that the photos were relevant because they showed appellant's familiarity with "sophisticated weapons," and that he "trained and practiced" with such a weapon, which was, or was similar to, the one found by the police in his bedroom.
Given the strength of the evidence supporting the verdicts, it is impossible to think the jury would have reached verdicts more favorable to appellant if the photos had not been received in evidence; so if the evidence were inadmissible, the error would in that event be harmless. But the photos were relevant. Indeed, relevance and the absence of prejudice are both shown by, among other things, the fact that appellant's training and practice in the use of sophisticated weapons and years of practice in their use actually supported his testimony that he practiced rapid-fire shooting his Glock and Sig Sauer about 12 times a year for 8 years and felt capable of ensuring his shots would hit his target—the engine under the hood—and leave Covington, Harrelson, and Soliz unharmed.
Receipt of the photos in evidence cannot fairly be deemed even arguably erroneous.
B.
Given the weight of the testimony of the People's witnesses and the forensic evidence the People presented, denial of appellant's motion for judgment of acquittal for insufficient evidence of the attempted murder charged in count 1 cannot tenably be deemed even arguably erroneous.
C.
As we have said, the jury requested a dictionary due to jurors' uncertainty about the meaning of six words it did not initially disclose. The court declined the request "because many words have a variety of different meanings in the dictionary, and I wasn't sure what terms the jury was interested in and whether the court could be of more specific assistance to them than a dictionary might be." After the jury identified the six words it wanted defined—which were: "direct," "indirectly," "could," "would," "unambiguous," and "ambiguous"—and discussing the matter with counsel for an hour and a half, the court read the jury CALCRIM No. 200 ("words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings").
Over appellant's objection, the court also personally defined the six words of concern to jurors; doing so in the following three paragraphs:
"The words 'direct' and 'directly' are found in different instructions and may have slightly different connotation depending upon the specific setting. For instance, as used in Instruction 226 ('[d]id the witness understand the questions and answer them directly'), 'directly' is used in the sense of 'honestly and to the point; straightforwardly; frankly.' In Instruction 600, the phrase 'direct step' is specifically defined. In Instruction 875, 'directly' is used in the sense of 'in direct way or line; straight; with nothing or no one between.'
"The word 'unambiguous' as found in Instruction 600 is best understood in relation to the definition of 'ambiguous' which is commonly understood to mean 'having two or more possible meanings; not clear; indefinite; uncertain; vague.'
"The words 'could' and 'would' are found in several instructions. In general, they are understood as forms of the words 'can' and 'will.' 'Can' suggests possibility or ability; 'will' suggests greater degree of certainty than either possibility or ability and is best understood in the context of the sentence in which it is used."
Appellant's counsel voiced no objection to the reading of CALCRIM No. 200, but objected to the reading of the three paragraphs just quoted "because they misstate the law," adding that he had "no alternative proposed responses."
This objection, which was wholly unexplained, is puzzling. The court was not asked by jurors to declare a legal rule and it did not do so. The court neither purported to alter the true meaning of instructions nor did its response have that effect. On the contrary, discharging its duty to assist the jury, the definitions the court provided simply clarified the true meaning of the instructions jurors were obliged to follow, which is certainly not arguably erroneous.
D.
The evidence is unquestionably sufficient to support the judgment. It does not appear that any evidence received by the court should have been excluded, that admissible evidence was excluded, that the prosecutor committed misconduct, that defense counsel was ineffective, or that any instruction was erroneously given by the court and prejudicial.
Appellant's mental competence is not questionable, and he was represented by competent counsel at every stage of the trial court proceedings.
There was no sentencing error.
There are no arguable issues that require further briefing.
DISPOSITION
The judgment and sentence imposed are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.