P. v. Seel

Filed 3/21/02
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM HARLOW SEEL,
Defendant and Appellant.
B143771
(Los Angeles County
Super. Ct. No. KA044436)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert
C. Gustaveson, Judge. Reversed in part, affirmed in part and remanded.
Law Offices of Dennis A. Fischer, Dennis A. Fischer and John M. Bishop for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz,
Supervising Deputy Attorney General, and Robert C. Schneider, Deputy Attorney
General, for Plaintiff and Respondent.
___________________________

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William Harlow Seel appeals from judgment entered following a jury trial in
which he was convicted of one count of attempted premeditated murder (Pen. Code,
§§ 664, subd. (a) and 187, subd. (a)) and the finding that he personally and intentionally
discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (c).
He makes numerous claims of error on appeal.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
By way of an amended information, defendant was charged in counts 1, 2, 3 and 4
with attempted willful, deliberate, premeditated murder of Arnel Arcilla, Kevin Isomura
(Isomura), Rodel Arcilla, and John Park (Park), respectively. It was further alleged that
each offense was a serious felony, that defendant personally and intentionally discharged
a firearm, and that he personally used a firearm. Following a jury trial, he was convicted
of count 4 and the special allegations in connection with that charge were found true. He
was acquitted of the remaining counts. He was sentenced to life in prison with the
possibility of parole plus 20 years pursuant to the firearm enhancement.
Defendant did not dispute that he fired shots at the two cars that evening. His
counsel argued defendant never denied the shootings but in fact admitted that to the
police officers. Rather defendant claimed that he pulled out his gun partly out of fear,
and partly out of pride or arrogance. That when he fired shots at the other cars, not the
persons but the cars, he had no intention of killing people. Rather he shot to scare them
off, to intimidate them; he never wanted to kill anyone; never tried to kill anyone.
Defendant specifically aimed at the body of the car in both shootings, not at people.
With regard to counts 1, 2, and 3, of which defendant was found not guilty, the
evidence was as follows: On May 1, 1999, Arnel Arcilla, Rodel Arcilla and Isomura
were traveling eastbound on Colima when another car drove up next to them and stayed
at a steady pace with them. Defendant, the driver of the other car, looked up and shouted
out, “you want shit[?]” Arnel Arcilla, the other driver, saw defendant “chamber the gun”
meaning to get ready to fire it and decided to turn to his right towards the curb and duck,

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to wait for the shots to clear up and then “clear out.” He noticed bullets were going
through his car; he heard the driver’s window shatter and felt a bullet graze his leg. He
heard six shots fired and saw defendant speed away. Arnel Arcilla immediately drove
home and made a police report. Prior to defendant yelling, “you want shit?” and shooting
at him, Arnel Arcilla said nothing to him and made no gestures. No other passenger in
his vehicle said anything to defendant or made any gestures toward him. Prior to that
evening, Arnel Arcilla had never seen defendant or his passenger. When Arnel Arcilla
took his shoe off that evening, a bullet fell out, which he turned over to Detective
Haughey.
The second incident, the subject of count 4, took place at around 11:00 p.m. that
same evening. Park and three friends, Nathan Yoshizaki (Yoshizaki), Leland Fong
(Fong) and Eric Shing (Shing) went for a late dinner at Yoshinoya (also known as Beef
Bowl) at the corner of Fullerton and Colima. Yoshizaki drove; Shing sat in the front
passenger seat and Fong and Park sat in the back. Yoshizaki parked his car in the parking
lot of the restaurant. Park observed defendant and a female companion exit the restaurant
and enter defendant’s car. While defendant proceeded to leave the parking lot, Park
heard gunfire as he stood in front of the door to the restaurant. Park was just a couple of
steps from the bumper of Yoshizaki’s car and dropped to the ground. He then took cover
on the right side of Yoshizaki’s car. Park heard two or three shots. Fong was in the
doorway to the restaurant and Shing and Yoshizaki were already inside. When the shots
rang out, Park saw no other occupied cars in the lot. No one in his group had any words
with defendant or his companion and no gestures were exchanged. Neither defendant nor
his companion said anything to Park. Park did not understand what was going on and
was very startled. He later saw a bullet hole on the side of the left headlight and the
bumper of Yoshizaki’s car. That was “essentially . . . exactly where [he] walked past as
[he was] going into the Beef Bowl.” The distance between this second incident and the
first was approximately .7 miles.

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Park believed he was sitting in the right back passenger seat and walked around
the back of the car after he exited it. As he and his friends walked to the restaurant, they
walked almost in single file, and Park was the last in the line. Park glanced over at
defendant’s vehicle because he “heard the exhaust.” He “glanc[ed]” at the car more than
once, because he heard it and it just caught his attention.
An examination of the vehicle revealed an area in the left front fender by the
headlight consistent with the passage of a bullet, which penetrated the fender and
penetrated or broke part of the left headlight. The damage was consistent with “a straight
across shot, not too elevated and not too much in a downward angle,” “somewhat level.”
Typically bullets or handgun rounds do not go through items such as concrete or trees,
but they typically do go through at least one side of a vehicle. They will go through the
left side or the right side; occasionally they will pass through the entire vehicle depending
on how many “mechanisms” they strike. The weapon used in the shooting was a
semiautomatic nine-millimeter pistol; each shot fired on that weapon requires a deliberate
trigger pull. Each time it would require at the very minimum six pounds.
Deputy John Haughey questioned defendant following advisement and waiver of
his constitutional rights. Defendant stated he was in the parking lot at the Beef Bowl
restaurant in his 1994 Black Honda Accord. He had gone to the restaurant to pick up
Shanda Bustamante (Bustamante), who was working there. When she came out of the
restaurant and entered his car, he noticed a two-door purple Honda parked in front of the
restaurant. Four males got out of the car; and as defendant approached the south
driveway of the parking lot, the four males started walking towards his vehicle.
Defendant thought they might break the windows of his car. He panicked and obtained a
nine-millimeter Ruger semiautomatic pistol from inside of his car and reached across
Bustamante’s lap and fired several rounds out the open right front passenger window into
the air to scare off the men. He then drove away. He saw many police units and thought
they might be looking for him. He then drove into a Wal-Mart parking lot and told
Bustamante to throw the gun out the window, which she did.

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Regarding the first shooting, defendant said the other car drove up along side of
him, a passenger in that car “threw up his hands as if he knew [defendant]” and the other
occupants shouted obscenities. Defendant said it appeared that the front passenger was
reaching for something, possibly a weapon, at which time defendant fired first, firing
several times to scare off the occupants of the other car.
Defendant testified in his own defense. On the way to taking Bustamante to work
at the Beef Bowl, he stopped at a park and smoked methamphetamine. He had used
methamphetamine for approximately five years. Within five minutes of leaving the park,
he encountered the vehicle involved in the first shooting. There was eye contact with the
occupants and obscenities. When the passenger appeared to reach for something,
defendant knew “something bad” was going to happen and he reached under his seat for
his gun, pointed to the bottom of the car door and started shooting. He did not plan to kill
or harm anyone but just to “mess up” the car and scare the occupants off. After taking
Bustamante to work, he went to a friend’s house where he used more methamphetamine.
Upon receiving a page from Bustamante, he returned to the Beef Bowl to pick her up. He
was in his car in the restaurant parking lot when a car with four men drove up and parked
one space away from him. The men were yelling, and defendant felt there was going to
be trouble. One or two of the men got out of their car and defendant entered the
restaurant to get Bustamante. Defendant and Bustamante left the restaurant; and while
walking back to his car, defendant and the other males looked at each other. After getting
into the car and while waiting to leave the parking lot, defendant became increasingly
fearful because of the way the four men were looking at him. Additionally, Bustamante
told him that one of the men had flicked a cigarette at his car; defendant believed this was
going to lead to something that would harm him.
Defendant had exited the parking lot and was on the street when he fired his gun,
“toward the air like above their car, around that area.” He believed he fired three rounds.
The light had just turned green, there was nothing blocking his route and he could have

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driven down the road, but he fired the shots because he panicked. He “felt kind of
paranoid and stuff.” He did not plan to kill or hit Park and did not even know him.
Defendant kept the gun in his car for protection. Previously he had been in fights
and had been injured. The amount of methamphetamine that he used before going to the
Beef Bowl was similar to the amount he would normally use on a daily basis. Before the
day of the incident, he had been feeling paranoid or fearful of persons. On the day of the
incident, he felt worse; it was difficult for him to stay awake. He was not claiming that
his drug use excused his behavior in any way.
Deputy Sheriff Jaime Rivera was trained to recognize symptoms of individuals
under the influence of methamphetamine, i.e., dilation of the pupils, sweating, rapid
speech, poor attention span; the individual is often itchy or scratchy and uneasy. Rivera
observed defendant at the time of his arrest and it was Rivera’s opinion that defendant did
not display symptoms of being under the influence of methamphetamine. Rivera was not
an expert in the long-term effects of methamphetamine and had no knowledge as to how
it affects a person after one has been using it for approximately five or six years.
Methamphetamine does, however, make someone paranoid and delusional after using it
for a long period of time.
I.
MOTION FOR CONTINUANCE
AND DISCHARGE OF ATTORNEY BOYLE
On February 28, 2000, defendant made a motion for substitution of attorney. The
court noted the matter had been pending since July 1999. Proposed counsel, Mr. Conn,
stated he was not prepared to try the matter presently and would need some time to
prepare. Conn had just spoken to defendant’s family and had been handed the discovery
that morning and needed a reasonable period of time. Conn argued that since defendant
was “looking at a life sentence in this case,” a “short reasonable period of time” was

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needed. The court stated it did not intend to allow the substitution unless the matter was
prepared to go forward.
Mr. Boyle, defense counsel of record, stated that even though the case had been
pending for a while, it was only recently that an offer had been made by the prosecution.
The prosecution offered defendant “38 years.” Boyle stated that he had made a mistake
in discussing defendant’s exposure with defendant’s family and did not realize the error
until Mr. Conn had advised him that defendant’s family had contacted him and that
defendant was facing an additional 20-year enhancement because of the firearm
allegation. This drastically changed Boyle’s thinking of the case, whether it was a case
that should go to trial or be settled. Boyle stated he considered it “a significant misstep
on [his] part when [he] discussed this with them . . . .” Boyle reiterated the basis of his
request for a continuance, i.e., the seriousness of the case because defendant was looking
at life imprisonment, the fact that defendant had chosen another attorney who could be
ready within an extremely short period of time, and the fact that present counsel had erred
in discussing defendant’s exposure.
The prosecution argued it was prepared to go forward and the witnesses were lined
up; it appeared that defendant “just wants to shop around for attorneys, this would be his
third attorney. . . . Mr. Escobar started the case, he handled the preliminary hearing.
After the preliminary hearing, Mr. Boyle then substituted in, Mr. Boyle has been his
attorney of record. It appears that [defendant] has been comfortable with Mr. Boyle for a
significant amount of time, perhaps until the offer was conveyed because it’s such a
substantial offer, but that has to do with the people, and that does not have to do with
counsel.”
Defense counsel Boyle also stated that he had an operation scheduled and had to
be hospitalized on March 7, and that if trial was started immediately, “it would be very
close to being done.”
The court advised, “[b]efore Mr. Boyle indicated his forthcoming surgery, [its]
inclination was to trail the matter until about eight of ten, without allowing the

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substitution. If at that time [Conn] appear[ed] and sa[id] he [was], in fact, ready [the
court] was going to allow the substitution, [and] send the matter out for trial. [¶] But the
difficulty is this: If I were to do that now, that would have put us right around the 7th or
8th of March. Mr. Boyle has surgery scheduled. He says the 7th. I have no reason to
disbelieve his representation. The People indicated that they have stated they would be
unavailable as of the 9th. [¶] Based upon all of that, my intention right now is to deny
the request for continuance and sen[d] the matter out for trial.”
Conn responded and asked “if the court could . . . just trail it until Friday” and that
he would be ready by that time. Conn suggested that Boyle could then be excused so that
he could receive his surgery.
The prosecution objected, arguing “eight of ten was Thursday. The People
answered ready, so did defense counsel, unless counsel is ready to try it today, then that
complicates the prosecutors. This is a specially assigned case. We will not be done in
time, and I have --essentially paid flight arrangements on that date of the 9th, your
honor.” The court denied the request for continuance noting that if Conn wished to
substitute in as co-counsel for trial, that would be allowed but Boyle would not be
relieved. Defendant agreed that Conn could join the case as co-counsel along with Boyle.
Conn indicated he was privately retained counsel.
When jury selection was complete, Boyle requested that he be relieved as counsel
since Conn had answered ready, was lead counsel and defendant’s family wished Conn to
take over the case. When the court asked Conn whether Boyle’s assistance would be of
any value to him, Conn answered he was confident that he could handle the case; while
he had asked the court initially for additional time to prepare, that had been denied and he
had spent a lot of time preparing the case since then; he had all day Monday and all of the
present day to prepare and in light of what Boyle had done in connection with the case,
felt confident that he was able to proceed with the case. Rather than relieving Boyle
altogether, the court excused him from attending the court sessions if he agreed to be in
telephonic communication with Conn and to come in or confer with him if necessary.

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Appellant contends the trial court erred by refusing to grant a brief continuance to
permit new defense counsel time to adequately prepare for trial. He also claims the court
erred by failing to discharge Boyle who had ineffectively represented defendant in plea
negotiations. While it is true that at the pleading and bargaining phase, a defendant is
entitled to effective assistance of counsel (see In re Alvernaz (1992) 2 Cal.4th 924, 933)
and that misadvice on sentencing exposure may violate a defendant’s right to effective
assistance of counsel (see People v. Johnson (1995) 36 Cal.App.4th 1351, 1355-1357),
appellant has failed to show prejudice warranting reversal. Appellant fails to show he
was prepared to accept the 38-year term once he was correctly advised of his sentence
exposure. At the end of the discussion on whether substitution of counsel would be
permitted, the trial court told defendant to consider the offer, if it was still available, until
later that day. There was no comment from the deputy district attorney that the offer was
not still available. Appellant has made no record indicating he attempted to accept the
38-year offer thereafter. Absent prejudice, counsel cannot be found ineffective. (See
Strickland v. Washington (1984) 466 U.S. 668.)
After being allowed to associate into the case as co-counsel, and, thereafter, when
asked by the court to be completely candid, Conn told the court, that after the
continuance had been denied, he had spent a lot of time preparing for trial and was
confident he could handle the trial at that point. He reiterated that he was confident he
was able to proceed with the case. We find no basis for concluding the trial court abused
its discretion in denying a continuance of the trial.
II.
SUFFICIENCY OF EVIDENCE
Appellant contends the judgment of conviction for attempted murder must be
reversed in that the evidence is insufficient to establish that he possessed the specific

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intent to kill.1
“One who intentionally attempts to kill another does not often declare his
state of mind either before, at, or after the moment he shoots. Absent such direct
evidence, the intent obviously must be derived from all the circumstances of the attempt,
including the putative killer’s actions and words. Whether a defendant possessed the
requisite intent to kill is, of course, a question for the trier of fact. While reasonable
minds may differ on the resolution of that issue, our sole function is to determine if any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. [Citations.]” (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)
Defendant’s act of firing a firearm from his vehicle three times, which required
three separate pulls, and, at least one of which was in a “straight across shot, not too
elevated and not too much in a downward angle,” “somewhat level” in the direction of
the victim of whom defendant stated he was fearful, supports the conclusion that
defendant intended to kill the victim.
Appellant additionally contends there was no substantial evidence of
premeditation and deliberation. “People v. Anderson (1968) 70 Cal.2d 15, 26-27 . . .
identified three categories of evidence typically used to resolve this issue: planning
activity, motive, and manner of killing. . . . Anderson does not require that these factors
be present in some special combination or that they be accorded a particular weight, nor
is the list exhaustive. Anderson was simply intended to guide an appellate court's
assessment whether the evidence supports an inference that the killing occurred as the
result of preexisting reflection rather than unconsidered or rash impulse. [Citation.] [¶]
Of course, the appellate court does not substitute its judgment for that of the jury but
affirms the verdict if a rational trier of fact could find premeditation and deliberation
beyond a reasonable doubt. [Citation.]” (People v. Pride (1992) 3 Cal.4th 195, 247.)
1
Specific intent to kill is a requisite element of attempted murder and implied
malice is an insufficient basis upon which to sustain such a charge. (See People v.
Lashley (1991) 1 Cal.App.4th 938, 945.)

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“In this context, ‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’
means ‘formed or arrived at or determined upon as a result of careful thought and
weighing of considerations for and against the proposed course of action.’ [Citations.]
The process of premeditation and deliberation does not require any extended period of
time. ‘The true test is not the duration of time as much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated judgment may
be arrived at quickly . . . .’ [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668,
767.)
In the present case, there was no evidence of planning activity. While defendant
had a loaded gun in his vehicle, he testified that he had been keeping a gun in his car for
protection. The fact that he had loaded it sometime after the earlier shooting does not in
and of itself amount to sufficient evidence of premeditation and deliberation. As to any
past relationship with the victim or conduct with the victim from which a motive to kill
reasonably could be inferred, there was none. Defendant and Park did not know each
other before the encounter and only exchanged glances immediately before the shooting.
There was no evidence that Park was a member of a gang or any group to which
defendant was hostile. There was no evidence that would give rise to a motive for
defendant to kill Park. Additionally, the method of the “attempted murder” was far from
a particular and exacting method to kill. Defendant fired three shots, but only one struck
within six to eight feet of Park. The finding of premeditation and deliberation, therefore,
must be reversed and the matter remanded for retrial on the penalty allegation. (See
People v. Bright (1996) 12 Cal.4th 652, 671.)

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III.
EXPERT TESTIMONY ON THE
EFFECTS OF METHAMPHETAMINE USE
The defense sought to present the testimony of a psychiatrist as an expert witness
to testify regarding the effect of the long-term use of methamphetamine; primarily
paranoia. Defense counsel represented that defendant was going to testify that he was
under the influence of narcotics at the time of this incident, which would explain to some
extent his behavior.
Thereafter, at a hearing pursuant to Evidence Code section 402, defense counsel
made an offer of proof, that while the expert had not examined the defendant, not read the
police reports, and was not going to be rendering an opinion concerning the defendant’s
actual state of mind at the time of the commission of the crime, his testimony would
corroborate the testimony of defendant in regard to narcotics and the impact of narcotics.
Defendant testified that at the time of the commission of the crime, he was feeling
paranoid and scared and the defense wanted to demonstrate through the testimony of the
witness that methamphetamine has those effects. The defense argued, “If the jury is
aware of the fact that [defendant] legitimately felt in fear, then they might very well
conclude it is more likely that the defendant shot to scare away these people rather than to
kill them.” Defense counsel continued, “What he will testify to is . . . both about the long
term and short term effects of narcotics, of this specific form of narcotics and he will talk
about paranoia, its impact upon, you know, the reasoning ability and so forth, poor
judgment, anxiety, fear, and . . . the relationship between those various terms that he is
using.”
The court refused to let the witness testify stating that if the jury believed the
witness, that defendant was afraid, a person who was afraid was just as likely to kill
someone than not. Maybe more so. If one was really afraid, there was a strong
possibility that he had the intention to kill them. The court also disallowed the testimony

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pursuant to Evidence Code section 352, finding that the testimony would totally confuse
the jury.
The contention that the trial court prejudicially erred in refusing to allow
defendant’s expert to testify is without merit. The purported relevance of the evidence
was that long-term use of the drug causes feelings of paranoia. Defendant, himself
testified that he felt paranoid and Deputy Rivera agreed that use of methamphetamine can
cause paranoia. There was no total preclusion of evidence to support defendant’s
defense. (Cf. People v. Reyes (1997) 52 Cal.App.4th 975, 986.) Further, additional
evidence from defendant’s proposed expert witness that defendant felt paranoid was of
limited relevance because there was no logical link between one’s feelings of paranoia
and the absence of an intent to kill. The exclusion of the proposed testimony was
harmless. (See People v. Romero (1999) 69 Cal.App.4th 846, 852.)
IV.
INSTRUCTIONS ON UNCHARGED LESSER OFFENSES
Appellant contends the trial court committed prejudicial error by failing to instruct
the jury on uncharged lesser offenses necessary to proper understanding of the case and
in allowing the prosecutor to mislead the jury into believing the court had determined that
attempted premeditated murder was the only offense appropriate to defendant’s conduct.
We disagree.
Appellant observes that with respect to the second incident, the information as
originally filed charged defendant only with discharging a firearm at Fong, Yoshizaki,
Shing, and Park from a motor vehicle, assault with a deadly weapon on Park, and
possessing a controlled substance with a firearm. Appellant asserts that “by eliminating
several serious charges as to which appellant’s guilt was clear, [and adding a fourth
charge of attempted murder] the People ‘roll[ed] the dice in a high stakes game of
chance’ [citation] and the ‘gamble’ [citation] was partially successful--after all, appellant
is serving consecutive sentences of life plus 20 years.”

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In People v. Birks (1998) 19 Cal.4th 108, the Supreme Court made it clear that the
discretion to charge crimes lies with the prosecution and the “insinuation that the
accusatory pleading is obligated to state every charge supported by the evidence is false.”
(Id. at p. 129.) The statement by the deputy district attorney that “there’s four counts of
attempted murder and that’s all because that’s what defendant’s conduct amounted to.
There’s nothing more and nothing less. Otherwise you would have it,” was not
misleading. The jury was only being asked to determine if defendant committed the four
charged counts, nothing more and nothing less.
DISPOSITION
The finding with regard to count 4 that the attempted murder of victim Park was
committed willfully, deliberately, and with premeditation pursuant to Penal Code section
664, subdivision (a), is reversed and the matter is remanded to the trial court for further
proceedings. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LILLIE, P.J.
We concur:
WOODS, J.
PERLUSS, J.

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