Unreported / Non-Citable
Background
A San Diego County jury convicted Richard Cowan of the first degree murder of Mario Bullard, the attempted murders of Joseph M. and Michael H., and assaults with a semiautomatic firearm involving Joseph, Michael, and Lonnie H. The jury also found true firearm and great-bodily-injury allegations and aggravating factors. The trial court sentenced Cowan to 14 years plus 75 years to life in prison. The prosecution presented evidence connecting four shootings through witness accounts, surveillance and cell phone evidence, cartridge casings, and a Springfield XD-40 recovered from Cowan’s Jeep.
On appeal, Cowan challenged the sufficiency of the evidence that he intended to kill Joseph and Michael. He also argued that the trial court should have conducted a Kelly hearing on the prosecution’s firearm and toolmark comparison evidence and should have limited examiner Katherine Todd’s opinion matching casings from three shootings to his firearm. Finally, he challenged the court’s response when deliberating jurors asked it to expand upon the definition of “intent to kill.”
Todd testified that casings from the May 2019, April 2020, and June 2020 shootings were fired from Cowan’s gun, while bullet-fragment comparisons were inconclusive. She acknowledged that interpreting comparison characteristics was subjective and discussed criticism and validation studies. Defense expert David Faigman questioned the field’s foundational validity and treatment of inconclusive results. After counsel conferred about the jury’s question, both sides and the court agreed to direct jurors to CALCRIM Nos. 520, 521, 600, and 200.
The Court’s Holding
The Court of Appeal held that substantial evidence supported both attempted murder convictions. Regarding Joseph, Cowan pointed a gun with a laser at him, said it was “cocked and loaded,” pistol-whipped him after he complied with an order to get on the ground, and shot his thigh at close range. The court relied on People v. Chhuon for the principle that a close-range shooting capable of causing a fatal wound can support an inference of intent to kill. Firing only once and striking the leg rather than a vital organ did not compel a contrary finding. Cowan also took Joseph’s phone and left him bleeding and unable to call for help, supplying another circumstance from which jurors could infer intent.
The evidence concerning Michael likewise sufficed. Cowan fired once as Michael ran toward his van, with the bullet passing within a couple of feet of him, and then fired two more rounds as Michael reversed, striking the tire and passenger-side panel. Although Cowan characterized the first shot as a warning and the later shots as an effort to prevent escape, the court explained that missed shots and poor marksmanship do not negate intent to kill. Jurors could reasonably infer that disabling the van would make Michael easier to shoot. The appellate court’s task was not to choose between competing inferences but to determine whether a rational jury could find the elements beyond a reasonable doubt.
The court further held that California Supreme Court precedent foreclosed Cowan’s demand for a Kelly hearing because firearm and toolmark comparison is not subject to Kelly. It separately found no abuse of discretion under Sargon and Evidence Code sections 801 and 802: Todd described her training, examination process, test-fired casings, objective features, and photographs showing areas of agreement. Unlike the expert in People v. Azcona, she did not claim scientific certainty or practical exclusion of every other gun. Finally, counsel’s agreement forfeited the instructional challenge, but the court addressed its merits because Cowan raised ineffective assistance. Referring jurors to correct, complete instructions and ordinary word meanings satisfied section 1138; the court therefore did not reach the ineffective-assistance claim. The judgment was affirmed.
Key Takeaways
- A single close-range shot to a victim’s leg can support attempted murder when the surrounding circumstances permit a reasonable inference of intent to kill.
- Shots that miss a fleeing victim do not establish merely an intent to frighten, particularly when additional shots strike the victim’s means of escape.
- California Supreme Court precedent treats firearm and toolmark comparison evidence as outside the Kelly rule, but trial courts retain their Sargon gatekeeping responsibilities.
- An expert’s acknowledgment of subjectivity and methodological criticism can distinguish permissible comparison testimony from an unsupported assertion of scientific certainty.
- Agreeing to a trial court’s answer to a jury question can forfeit an appellate instructional challenge, even when the appellate court alternatively examines the merits.
Why It Matters
The decision applies recent California Supreme Court authority to reject the argument that shooting a prone victim in the thigh, firing only once, or leaving without firing again necessarily defeats proof of intent to kill. It also illustrates how taking a victim’s phone and leaving the victim wounded can strengthen the prosecution’s circumstantial case.
The opinion separately addresses Kelly admissibility and Sargon gatekeeping, emphasizing that excluding a technique from Kelly does not eliminate scrutiny of the expert’s actual opinion. Its analysis turns on Todd’s documented comparisons, independent verification, qualifications, and qualified presentation rather than treating firearm comparison conclusions as infallible. The jury-question ruling additionally shows that referring deliberating jurors to complete instructions and ordinary meanings can satisfy the court’s duty without supplying a new definition.