Filed 5/22/14 P. v. Ring CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062782

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE307616)

JOSEPHINE M. RING,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, William J.

McGrath, Judge. Affirmed.



         Carl Fabian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami

Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found Josephine M. Ring guilty of second degree murder in the killing of

her adult son, Vincent Bonfiglio. (Pen. Code, § 187, subd. (a).)1 The trial court

sentenced Ring to serve a term of 40 years to life in prison.

       Ring contends that the evidence was insufficient to support the jury's murder

verdict because the record does not contain substantial evidence to support a finding of

express or implied malice. We conclude that Ring's argument is without merit, and

accordingly we affirm the judgment.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       Ring and her 48-year-old son Bonfiglio shared a home in El Cajon. On the

evening of December 19, 2010, Ring, who was extremely intoxicated, was arguing with

Bonfiglio. During the argument, Ring was holding a gun and threatening to kill

Bonfiglio. Bonfiglio took the gun away from Ring at some point and said he was going

to unload it, but then apparently gave the gun back to Ring still loaded. Bonfiglio

captured some of the argument on his cell phone camera in three 30-second videos,

which are time-stamped as beginning at 10:56 p.m., 10:58 p.m. and 10:59 p.m. The

audio of the videos reflects the following conversation:




1      Unless otherwise indicated, all further statutory references are to the Penal Code.

                                             2
"[Ring]: . . . come over there and fucking kill ya.

"[Bonfiglio]: What are you doing Ma? What are you doing?

"[Ring]: I can come over here and fucking kill ya.

"[Bonfiglio]: Put the gun away. Put the gun away Ma. Put the gun away.

"[Ring]: Nah, you told me to do it.

"[Bonfiglio]: Put the gun away.

"[Ring]: Yeah put me on record.

"[Bonfiglio]: Mom put the gun away. Put the fucking gun away!

"[Ring]: Don't you dare.

"[Bonfiglio]: Put the gun away.

"[Ring]: (Unintelligible.)

"[Bonfiglio]: Put the gun away! Put the gun away!

"[Ring]: I'm gonna shoot you.

"[Bonfiglio]: Give me the fucking gun.

"[Ring]: Get out!

"[Bonfiglio]: Here. Here you wanna shoo . . . . What are you doing?
Here. What are you doing? Let go . . . . Ma, what are you doing?"

(END OF FIRST VIDEO.)

"[Bonfiglio]: Would you stop?

"[Ring]: Give it to me or I'll knife ya.

"[Bonfiglio]: Ma[,] now you're gonna knife me?


                                       3
"[Ring]: Yeah.

"[Bonfiglio]: You're gonna knife me?

"[Ring]: Give me.

"[Bonfiglio]: You just pulled a gun on me . . . .

"[Ring]: Give me the gun!

"[Bonfiglio]: Why?

"[Ring]: Because it's done.

"[Bonfiglio]: Well then let me unload it. Ma, I'm not. You just pulled a
gun on me and said you're gonna kill me. All right? I'm not giving you the
gun. If you need help that bad . . . . Go on smack me as much as you want.
Smack me as much as you want, Ma.

"[Ring]: You keep telling me (unintelligible)."

(END OF SECOND VIDEO.)

"[Ring]: Aw, get it on me. (Unintelligible.)

"[Bonfiglio]: . . . Ma, what are you doing?

"[Ring]: You cock sucking son of a bitch.

"[Bonfiglio]: Ma, please stop. Please. I'm not giving you the gun. You're
not killing anybody. Please stop. Please, we're family. I love you.

"[Ring]: Give me . . . .

"[Bonfiglio]: . . . What?

"[Ring]: . . . the gun.

"[Bonfiglio]: Why? Why?

"[Ring]: Because I need it for protection from you.



                                      4
       "[Bonfiglio]: You don't need from me. Ma, . . . I'll give it to you. Back the
       fuck away."2

       (END OF THIRD VIDEO.)

       At 11:05 p.m., police and paramedics responded to the scene after receiving a 911

call from Ring, who was screaming and hysterical. Bonfiglio was lying on the floor in

the hallway with a single bullet wound in his upper chest, and was pronounced dead at

the scene by paramedics. Police found a single bullet hole in the middle of the door

leading to the hallway where Bonfiglio was lying. A gun was found in Ring's closet,

which was likely the gun that fired the bullet at Bonfiglio and which appeared to be the

same gun that Ring was pointing at Bonfiglio in the videos.

       Ring was charged with murder, along with firearm enhancements. (§§ 187,

subd. (a), 12022.53, subd. (d), 12022.5, subd. (a).)

       At trial, the prosecution's firearms expert, Roland Chang, testified that the bullet

hole through the hallway door was not perfectly circular. The irregular shape could have

been caused by destabilization of the bullet or possibly by the door being in the process

of closing when it was hit by the bullet. Chang performed tests that ruled out a defect in

the gun as the cause of the possible bullet destabilization. He accordingly concluded that

if the bullet was destabilized, the destabilization must have been caused either by some

kind of intervening object hitting the bullet before it reached the door, or possibly by the




2      We have set forth the audio content of the three videos as reflected in the
transcription provided to the jury.
                                              5
bullet striking the door. One hypothetical scenario discussed during Chang's testimony is

that Ring was holding a knife in the path of the bullet, which made it destabilize.

       Chang testified that he considered whether the bullet could have ricocheted off

something to cause the destabilization. Chang explained that ricochet marks are usually

"obvious," and he did not find any obvious marks at the house. In addition, Chang

believed the bullet did not ricochet because the trajectory of the bullet was straight and

perpendicular to the floor, but a ricocheting bullet would have traveled through the

hallway door at an angle.

       The jury found Ring not guilty of first degree murder, but guilty of second degree

murder. The jury further made a true finding on the firearm enhancements. Ring was

sentenced to serve a term of 40 years to life in prison.

                                              II

                                       DISCUSSION

       Ring's sole appellate contention is that the verdict is not supported by substantial

evidence because there was insufficient evidence of malice. Focusing on Chang's

testimony about the irregularly shaped bullet hole, Ring argues that the bullet could have

been destabilized by ricocheting, causing the irregular bullet hole. She argues that it is

therefore possible that the gun was pointed away from the hallway when it was fired.

According to Ring, "[w]ithout solid and credible evidence as to the direction the gun was

pointed when it was fired, . . . it remains a matter of pure speculation and conjecture as to

whether the shooter harbored express or implied malice." As we will explain, we reject



                                              6
Ring's argument because it misapprehends the appellate standard of review in a challenge

to the sufficiency of the evidence, and the record contains substantial evidence of malice.

       Murder is defined as "the unlawful killing of a human being, or a fetus, with

malice aforethought." (§ 187, subd. (a).) Malice may either be express or implied.

(§ 188.) Express malice exists "when there is manifested a deliberate intention

unlawfully to take away the life of a fellow creature." (§ 188.) "[M]alice is implied

when the killing results from an intentional act, the natural consequences of which are

dangerous to life, which act was deliberately performed by a person who knows that his

conduct endangers the life of another and who acts with conscious disregard for life."

(People v. Dellinger (1989) 49 Cal.3d 1212, 1215.)

       Ring does not dispute that shooting a gun through a closed door with someone on

the other side could reasonably be found to constitute implied malice, as it is an act that is

obviously dangerous to human life. However, she disputes that the evidence is sufficient

to establish that she aimed the gun at the hallway door.

       An understanding of the proper standard of review is central to our evaluation of

Ring's argument. When reviewing a challenge to the sufficiency of the evidence, we

"presume[] in support of the judgment the existence of every fact the trier could

reasonably deduce from the evidence," and we "examine the whole record in the light

most favorable to the judgment to determine whether it discloses substantial evidence —

evidence that is reasonable, credible and of solid value — such that a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000)

23 Cal.4th 978, 1053.) "Although it is the jury's duty to acquit a defendant if it finds the

                                              7
circumstantial evidence susceptible of two reasonable interpretations, one of which

suggests guilt and the other innocence it is the jury, not the appellate court that must be

convinced of the defendant's guilt beyond a reasonable doubt." (Id. at pp. 1053-1054,

italics added.) " '[T]he rule that the circumstances relied upon by the prosecution must be

consistent with guilt and inconsistent with an hypothesis of innocence, is a rule of

instruction for the jury, and is not the rule for the guidance of the court on review.' "

(People v. Huizenga (1950) 34 Cal.2d 669, 676, italics added.) " 'If the circumstances

reasonably justify the verdict of the jury, the opinion of the reviewing court that those

circumstances might also reasonably be reconciled with the innocence of the defendant

will not warrant interference with the determination of the jury.' " (People v. Love (1960)

53 Cal.2d 843, 850-851, italics added.) We apply the same substantial evidence standard

of review in a case where the verdict was based on the jury's evaluation of circumstantial

evidence as we do in a case involving direct evidence. (See Kraft, at pp. 1053-1054.)

       Because our role on appeal is to determine whether substantial evidence supports

the jury's verdict, we reject Ring's argument that we should reverse her conviction on the

ground that the evidence could support an inference that the bullet ricocheted off of

something rather than being shot straight through the door at Bonfiglio. Here, we need

not look very far in the evidentiary record to find ample circumstantial evidence

supporting a jury finding that Ring aimed the gun at the door toward Bonfiglio instead of

pointing it somewhere else. The strongest circumstantial evidence that Ring intended to

shoot toward the door are her statements, recorded on the videos shortly before the



                                              8
shooting, that she is going to shoot and kill Bonfiglio. That evidence alone is sufficient

to support a finding that Ring shot at the door toward Bonfiglio.

       Ring contends that because of Chang's testimony about the irregularly shaped

bullet hole in the door, the jury could not reasonably find that she aimed the gun toward

the door. We disagree. As we have described, Chang testified that there were several

possible explanations for the irregularly shaped bullet hole, among which were (1) the

bullet destabilized when it hit the door; (2) an intervening object, possibly a knife or

something else in front of the gun, destabilized the bullet; or (3) the door was in the

process of closing when the bullet hit it. None of those possibilities is inconsistent with

Ring aiming the gun at the door. Further, Chang's testimony about the possibility of a

ricochet amply supported a finding that the bullet was shot straight through the door

instead of ricocheting. Chang clearly testified that the physical evidence was not

consistent with a ricochet because the bullet hole was not at an angle, and there were no

ricochet marks in the house.

       Based on the above, we conclude that Ring's challenge to the sufficiency of the

evidence on the issue of malice is without merit. Ring threatened to shoot and kill

Bonfiglio moments before he was shot, and the physical evidence is consistent with a gun

being aimed directly at the hallway door.




                                              9
                                DISPOSITION

    The judgment is affirmed.



                                              IRION, J.

WE CONCUR:



    MCDONALD, Acting P. J.



               O'ROURKE, J.




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