People v. McVey

233 Cal. Rptr. 3d 915, 24 Cal. App. 5th 405
CourtCalifornia Court of Appeal, 5th District
DecidedJune 12, 2018
DocketB280966
StatusPublished
Cited by67 cases

This text of 233 Cal. Rptr. 3d 915 (People v. McVey) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. McVey, 233 Cal. Rptr. 3d 915, 24 Cal. App. 5th 405 (Cal. Ct. App. 2018).

Opinion

LUI, P. J.

*409Troy T. McVey appeals the judgment entered following three jury trials in which he was convicted of voluntary manslaughter *918( Pen. Code, § 192, subd. (a) ) in count 1, and felony vandalism ( Pen. Code, § 594, subd. (a) ) in count 2.1 The jury found true the personal firearm use allegation. ( Pen. Code, § 12022.5, subd. (a).) The trial court imposed an aggregate sentence of 16 years 8 months, consisting of the mid-term of 6 years for the voluntary manslaughter conviction, plus 10 years for the firearm enhancement, and a consecutive 8-month term for the felony vandalism conviction.

Appellant contends the trial court erroneously excluded evidence that the victim had been diagnosed with paranoid schizophrenia and had behaved aggressively in two confrontations with police officers 20 years earlier in Florida. We disagree and affirm the judgment of conviction. Appellant further seeks remand for reconsideration of his firearm enhancement pursuant to Senate Bill No. 620,2 which amended Penal Code section 12022.5, subdivision (c) to remove the prohibition on striking firearm enhancements. Because the trial court's comments at sentencing unequivocally indicate that it would not exercise its new discretion under Penal Code section 12022.5, subdivision (c) to dismiss the firearm enhancement in appellant's case, we decline his remand request.

*410FACTUAL BACKGROUND

In the late night hours of January 4, 2015, appellant and his friend, Coby, were walking on Cahuenga Boulevard in Hollywood. Appellant was carrying a semiautomatic .22-caliber handgun in his waistband behind his back. The magazine was fully loaded and there was a round in the chamber; the gun was cocked, and the safety was off. Outside an adult bookstore appellant and Coby were approached by two African-American men, who sold appellant what he believed to be cocaine for $40. Appellant and Coby crossed the street as the drug dealers drove away. When appellant and Coby examined the drugs they had just bought, appellant was upset to discover the substance was not cocaine, but powdered sugar.

The two men went to their car and changed clothes. They then returned to the area where the drug deal had taken place, and appellant saw what he thought was the car belonging to the drug dealers. Still upset about the fake drugs, he smashed all of the car's windows with the handle of a knife he was carrying. When an onlooker yelled at them, appellant stopped breaking the windows, and he and Coby walked away.

About a block away, appellant and Coby encountered a homeless man named Richard Miller, who was panhandling. Miller extended his hand toward appellant and asked for money. An altercation ensued,3 and appellant fired a shot at Miller. After a few seconds, appellant fired multiple shots in rapid succession. Miller collapsed on the sidewalk, and appellant walked away. Miller suffered a total of seven gunshot wounds, two of which were fatal.

*919Appellant and Miller stood between four and ten feet away from each other when appellant fired on Miller. According to seven eyewitnesses, Miller had made no aggressive moves toward appellant or threatened him before appellant fired his gun, but one witness reported seeing some pushing and shoving. None of the witnesses saw any weapon in Miller's hands or in the area where he fell, nor did police find a weapon of any kind on or around Miller.

Appellant testified that Miller approached him from behind, gesturing with his palm up and asking for money. Appellant felt Miller was pushing him toward a wall. Looking over his shoulder, appellant saw Miller reach into his pocket, and appellant took out his gun. Still with his back to Miller, appellant fired a warning shot into the ground. Appellant then turned around to face Miller, who had balled his hands into fists. The men were about six to eight *411feet apart. Appellant told Miller to get away, but Miller ignored him. Appellant noticed a knife in Miller's right hand and shot Miller in the right leg out of fear. But the shot appeared to have no effect, and Miller continued to advance. Appellant fired another shot at Miller's other leg to make him fall, but Miller lunged at appellant, leaving appellant no choice but to aim higher and fire again. Appellant shot Miller three more times before walking away.

DISCUSSION

I. The Trial Court Properly Excluded Medical Records and Police Reports Pertaining to the Victim, as Well as the Defense Expert's Testimony Based on Those Records

A. Procedural history

1. The motion for a new trial

Following appellant's conviction for voluntary manslaughter in the second trial, appellant moved for a new trial. The basis for the motion was the prosecution's delay until the end of trial in turning over evidence that Miller may have suffered from bipolar disorder or schizophrenia. ( Brady v. Maryland (1963) 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215.) Attached as exhibits to the motion were Miller's medical records and two police reports from Florida.

The medical records contained observations of Miller between August and November 1995, while he was housed in Pinellas County jail. The observations included descriptions of Miller as "psychotic," "delusional," and "paranoid," and documented "very bizarre behavior," including urinating and smearing feces on the walls. Doctors diagnosed Miller with paranoid schizophrenia, and on November 14, 1995, he was transferred to Florida State Hospital in Chattahoochee, Florida, after a Pinellas County court found him incompetent to stand trial. The medical records included a California subpoena directed to the custodian of records for the Pinellas County Sheriff's Office. In support of the new trial motion, defense counsel also submitted a declaration with two additional exhibits which included doctors' reports from Miller's stay at Florida State Hospital from 1995 to 1997.

One of the police reports was from the Tarpon Springs Police Department. It described an encounter with police on July 27, 1995, in which Miller put his hand in his pocket and told officers to shoot him. Miller threw something at police and struggled violently as an officer attempted to conduct a pat-down search. After two officers subdued him, Miller was arrested on suspicion of *412resisting arrest with violence. The second police report, titled, *920

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Cite This Page — Counsel Stack

Bluebook (online)
233 Cal. Rptr. 3d 915, 24 Cal. App. 5th 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcvey-calctapp5d-2018.