Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCS187703 H. Ronald Dominitz, Judge. Remanded for resentencing.
O'ROURKE, J.
A jury convicted Norman Paul Blanco of assault with a firearm (Penal Code, § 245, subd. (a)(2), count 3); discharge of a firearm in a grossly negligent manner (§ 246.3, counts 4, 5); unlawfully taking and driving a vehicle (Veh. Code, § 1085.1, subd. (a), count 9); evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a), count 10); hit and run driving (Veh. Code, § 20002, subd. (a), count 11); assault with a deadly weapon on a peace officer (§ 245, subd. (c), count 12); possession of a firearm by a felon (§ 12021, subd. (a)(1), count 13); and unlawful possession of ammunition (§ 12316, subd. (b)(1), count 14). The jury found true an enhancement to count 3 that Blanco personally used a firearm within the meaning of section 12022.5, subdivision (a), and an enhancement to count 12 that he used a dangerous weapon (a car).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court granted Blanco's motion to dismiss count 8 under section 1118.1, and granted the People's motion to dismiss counts 1, 2, 6, and 7, after the jury failed to reach a verdict and the trial court declared a mistrial on those counts.
In bifurcated proceedings, the trial court found true that Blanco had suffered a prior serious felony for attempted robbery (as a juvenile) (§§ 664/ 211, 12022.1, subd. (b), 667, subds. (b) through (i), 668, 1170.12); battery with serious bodily injury (§§ 243, subd. (d), 667, subd. (a)(1), 668, and 1192.7, subd. (c); and battery (§§ 243, subd. (d), 667, subds. (b) through (i), 668, 1170.12.)
The trial court sentenced him to 50 years to life plus 9 years in state prison as follows: 25 years to life on count 3; a consecutive term of 25 years to life on count 12; a consecutive term of 5 years for the prior serious felony conviction; plus 4 consecutive years for the personal use of a firearm enhancement. The court imposed terms of 25 years to life, stayed per section 654, on counts 4 and 5; concurrent terms of 25 years to life on counts 9, 10, 13 and 14, and a concurrent term of 180 days custody of the Sheriff on count 11.
Blanco contends insufficient evidence supported his conviction on count 12; the trial court erred in finding his prior juvenile adjudication of attempted robbery was a strike within the meaning of the "Three Strikes" law; the trial court violated his right to a jury trial under the Sixth and Fourteenth Amendments of the federal Constitution by using the prior juvenile adjudication as a strike; and the trial court abused its discretion in refusing to strike one or both of his prior strikes. We remand for resentencing.
FACTUAL BACKGROUND
Chula Vista Police Officer Sarah Sharpe testified that on September 12, 2004, at approximately 8:00 p.m., she responded to a call that shots had been fired at Blanco's residence. Sharpe met Shendel Dame, Blanco's girlfriend, who gave her the following account: Dame and Blanco were together when another woman Blanco was romantically involved with — Vickie Pena — showed up to visit Blanco. An argument ensued between Blanco and Dame. Blanco fired a gunshot into the floor. He "pulled [Dame's] hair and yanked her neck back and held the gun up to her neck," telling Dame, "Dare me? You fucking don't think I'll do it, do you[?]" He blocked both women from leaving the apartment. Dame locked herself inside the bathroom, and heard Blanco fire three shots in her direction. A few minutes later, she opened the bathroom door. She saw Blanco holding a gun pointed directly at her, and she slammed the door.
The next day, Officer Sharpe responded to another call at Blanco's apartment. Dame and Pena were there. Dame told Sharpe she had returned to Blanco's apartment to pick up her belongings, and she called the police from there. After Dame finished the phone call, she realized Blanco had left in Pena's car.
Chula Vista Police Officer Frank Giaime testified that on September 13, 2004, he responded to a call at Blanco's residence. Dame informed Giaime that Blanco was at her family's apartment located at 307 Ash Street in Chula Vista. Giaime went there and saw Blanco leaving the apartment and running to a parked vehicle. Giaime drew his gun and ordered Blanco to stop, but Blanco got into the vehicle and sped away. Giaime and another officer pursued him using their lights and siren. A police helicopter reported Blanco's movements to Giaime, who reached Woodlawn Avenue and E Streets, and exited his police car. Approximately ten seconds later, Giaime heard three loud pops, which he assumed was gunfire. When he saw Blanco approaching, Giaime drew his weapon and ordered him to stop. Blanco ducked down and accelerated past Giaime. Returning to his car, Giaime heard another loud sound, and saw Blanco had crashed into another vehicle. Giaime went to the collision scene and saw Blanco standing outside his vehicle. Blanco turned and ran. Giaime chased him as he jumped over a fence. A citizen intervened and held Blanco down until Giaime arrived and apprehended Blanco.
Chula Vista Police Officer Fred Rowbotham testified he responded to the call at 307 Ash Street. He was dressed in his uniform, and proceeded to handle traffic control at an intersection. He watched as Blanco left the apartment, eluded the other police officers, ran to a vehicle, and drove away. Rowbotham turned on his motorcycle lights and siren, and chased Blanco through city streets and into a strip mall parking lot.
While other officers pursued Blanco, Rowbotham stopped his motorcycle in the parking lot. Blanco drove towards Rowbotham, who pulled out his gun. As Blanco raced past him, Rowbotham saw "[Blanco's] whole upper body was . . . level or lower than the dashboard of the vehicle. He was completely laying across the seats." Rowbotham testified that as Blanco passed him, they "had eye-to-eye contact the whole time."
Officer Rowbotham exited the parking lot, drove south on Woodlawn Street and immediately saw Blanco approach from around a corner, straddling the center line and driving "possibly at the fastest possible speed you could make that corner as a vehicle. . . . the suspension was extended, the vehicle was sliding around the corner." Rowbotham jumped off his motorcycle, and ran. He pulled out his gun. He testified, "I just wanted to get out of the road. I thought for sure he was trying to run me over." Blanco drove to within approximately one foot of Rowbotham, who fired three shots. Rowbotham estimated Blanco was driving at 50 miles an hour.
Chula Vista Police Officer Tom Craft testified he was directing traffic at the intersection of Broadway and F Streets, and saw Blanco leave the apartment at 307 Ash Street. Blanco got into a vehicle and in reverse drove speedily towards Craft, knocking over the cones in front of his police vehicle. Craft turned on his lights and siren, and pursued Blanco. Craft stopped approximately 15 feet behind Rowbotham and saw Blanco's vehicle, straddling the center line, accelerating towards them. Craft saw Rowbotham appear to fall from his motorcycle, and Blanco driving between Robowtham and the motorcycle. Craft testified, "I thought that [Blanco's] vehicle was going to strike [Rowbotham], when the first shot went off. That's what I saw. It was — [Blanco] was only three, four feet away from the front bumper of the vehicle." Craft estimated Blanco was driving at 40 to 50 miles an hour, and the passenger side of Blanco's vehicle passed within two to three feet of Rowbotham.
Chula Vista Police Officer Don Clarke testified, "I remember seeing [Rowbotham] coming around the front bumper, he was trying to get out of the way, moving very quickly towards the curb, and shooting as he was moving towards the curb." Clarke estimated Blanco's vehicle came to within three to five feet from the curb.
Suzanne Martin testified she was at work and looking out the window. She saw "the motorcycle cop was standing in the middle of the street, and when [Blanco's vehicle] came back out of the driveway, he was headed right toward [Rowbotham]. [¶] [Rowbotham] drew his gun."
Victor Guerrero testified he was a passerby and saw the police chase Blanco's vehicle. Guerrero saw Rowbotham drop his motorcycle in the middle of the street. Blanco's car accelerated and reached directly in front of Rowbotham, who fired at it three times.
DISCUSSION
I.
Blanco contends insufficient evidence supported his conviction for assault with a deadly weapon on a peace officer because his "actions in attempting to escape shots fired toward him by Officer Rowbotham did not constitute a willful or purposeful act of application of deadly force."
In reviewing a challenge to the sufficiency of the evidence, we examine "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence" from which "a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) We are mindful that it " ' "is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." ' " (People v. Smith (2005) 37 Cal.4th 733, 739.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412.)
Section 245, subd. (c) makes it a crime to "assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties." Assault is a general intent crime that requires the defendant to have "actual knowledge of those facts sufficient to establish that the offending act by its nature would probably and directly result in physical force being applied to another." (People v. Williams (2001) 26 Cal.4th 779, 784.) The jury was instructed that "[s]omeone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage." (CALCRIM No. 860.)
Testimony from several witnesses quoted above provided substantial evidence to support the jury's verdict. The testimony of Rowbotham, Craft, Clarke, Martin and Guerrero indicated that Rowbotham was stopped on his motorcycle in the middle of the street, and Blanco was driving rapidly at Rowbotham. Rowbotham testified he was sure Blanco was going to run him over, and he had to dismount from his motorcycle, run, and fire his gun to avoid being hit.
We reject Blanco contention that "his actions in attempting to escape shots fired toward him by Officer Rowbotham did not constitute a willful or purposeful act of application of deadly force" because Blanco incorrectly states the order of events. Rowbotham fired the shots only after Blanco drove directly at him, and he had to flee from Blanco's path to avoid being hit. Further, substantial evidence supported the jury's conclusion that Blanco acted willfully. Blanco ignored several orders to stop and was fleeing from the police.
II.
Blanco contends the trial court erred in finding his prior juvenile adjudication constituted a "strike" for sentencing purposes because the prior adjudication was for attempted robbery using a kitchen knife, an offense not listed in Welfare and Institutions Code, section 707, subdivision (b). We review this contention de novo. (People v. Cromer (2001) 24 Cal.4th 889, 894.)
In determining the juvenile adjudication to be a serious felony prior, the trial court reviewed the parties' submissions, including a probation report that quoted a law enforcement officer's description of the attempted robbery and a summary of Blanco's interview with a probation officer regarding the incident. The trial court found that Blanco's juvenile adjudication for attempted robbery was a prior strike, and ruled: "The question with respect to the attempted robbery with the use is a matter of some
The law enforcement report stated, "On 2-20-98, at approximately 2048 hours the [Chula Vista Police Department] responded to an attempted robbery at Broadway and Moss Street in Chula Vista. The victim, Jase Shamore, stated [Blanco] walked up to him and stated, "West Coast Crips, what's up, I said what's up. Do you have any money?" and brandished a [sic] 8 " to 10 " kitchen knife approximately 6" from the victim's face. [Blanco] moved the knife back and forth, pointed down, in a stabbing motion. [Blanco] then swung the knife at the victim in an attempt to stab him. A female companion of [Blanco] stopped [Blanco] and the victim fled. The [Chula Vista Police] were called and they observed [Blanco] running down Arizona Street. The victim positively identified [Blanco] and he was arrested and booked into Juvenile Hall. The [Chula Vista Police Department] reported a large kitchen knife was found on the ground approximately 16' from [Blanco]."
Blanco told the probation department interviewer, "Me and Andrew, I don't remember his last name, got on a trolley to go to 12th and Imperial. We got off on Palamar [sic] and we were walking' through the Ralph's parking lot and some guy comes up to me all drunk, Mexican, 17 or 18, I don't know. He was like, 'Where the hell are you all from?' and we said, 'West Coast' and he was like, 'This is VCV .' We got into a confrontation and he said, 'You all tryin' to get crazy or something', like he was going' to fight. So I stepped back and pulled out my knife and I held it in the air and said, 'What you want to handle' and he said, 'Ok, I'll be right back and we can handle somethin', ok.'
controversy, but I find that is also a strike. . . . [¶] Here the elements are 16 years of age or older at the time of the commission of the crime. There is no question that Mr. Blanco was that age. The offenses listed in [Welfare and Inst. Code, §707, subd. (b)]. He was obviously found fit and proper to be dealt with under juvenile law, and he was judged by order of the court within the meaning of [Welfare and Inst. Code, § 602] because he committed these offenses in [Welfare and Inst. Code, §707, subd. (b)]. [¶] I think that this crime fits both of the definitions under the statutory lists of offenses under [Welfare and Inst. Code, §707, subd. (b)]. They are serious and violent offenses, and he personally used a weapon within the meaning of [§ 12020, subdivision (a)], knife, as obviously included as a weapon under [Welfare and Inst. Code, § 707, subd. (b)(18)], and it is a dirk or dagger. . . . [¶] . . . So I find that . . . Mr. Blanco did suffer a prior true finding within the meaning of [§§ 667, subds. (b)-(i), 1170.12, and 668], which is now a serious or violent felony under California law for robbery, attempted robbery, violation of [§§ 664/211] within attending allegation of [§12022.1, subd. (b)] on March 5th 1998, in San Diego Juvenile Court."
At a May 15, 1998 hearing, the juvenile court granted a petition filed under Welfare and Institutions Code, section 602. Blanco admitted the charge of attempted robbery (§§ 664/ 211); the court found beyond a reasonable doubt that a factual basis existed for the admission plea; and, dismissed a charge under section 245 with a waiver under People v. Harvey (1979) 25 Cal.3d 754. At a May 19, 1998, hearing, the juvenile court ruled Blanco was continued a ward under Welfare and Institutions Code section 602, but made no finding regarding whether Blanco had committed an offense under Welfare and Institutions Code, section 707, subdivision (b). On February 25, 1999, a supplemental petition was filed under Welfare and Institutions Code, sections 602/777. On August 24, 1999, the juvenile court ruled Blanco had not committed an offense under Welfare and Institutions Code section 707; and that "all true findings during this wardship have been aggregated pursuant to [Welfare and Institutions Code, section 726, and 1170.1, subd. (a)]; the most serious is [§§ 664/211, 12022, subd. (b)(1)] a category 5 offense."
Section 667, subdivision (d)(3) provides as follows:
"A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:
"(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense.
"(B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) [subdivision (d)(1) of section 667] or (2) [subdivision (d)(2) of section 667] as a felony.
"(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.
"(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code."
The California Supreme court interpreted section 667, subdivision (d)(3)(B) as providing that "a prior juvenile adjudication qualifies as a prior felony conviction for Three Strikes purposes only if the prior offense is listed in Welfare and Institutions Code section 707(b) or is classified as 'serious' or 'violent.' [Section 667, subdivision (d)(3)(D)] does not modify or conflict with paragraph (B), but states a separate, additional requirement: the prior adjudication qualifies as a prior felony conviction only if the defendant, in the prior juvenile proceeding, was adjudged a ward because of at least one offense listed in section 707(b)." (People v. Garcia (1999) 21 Cal.4th 1, 13.)
Welfare and Institutions Code section 707, subdivision (b)(18) refers to "any felony offense in which the minor personally used a weapon listed in [Penal Code section 12020, subdivision (a)]." In turn, Penal Code section 12020, subdivision (a)(4) refers to anyone who "[c]arries concealed upon his or her person any dirk or dagger." Penal Code section 12020, subdivision (c)(24) states, "As used in this section, a 'dirk or 'dagger' means a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death."
The People conclude that Blanco had concealed the kitchen knife, and rely exclusively on Blanco's admission in an interview with the probation officer that he had "pulled out the knife." Even if we agree that Blanco's kitchen knife satisfied the statutory definition of a dirk or dagger, it is impossible for us to conclude that the prosecution sustained its burden of proof on the requirement that the knife be concealed, under section 12020, subdivision (a)(4). The record does not state from where Blanco pulled the knife, or whether it was in fact concealed. Accordingly, we conclude it is at least equally plausible that the knife was not concealed.
The People point out that the juvenile court's 1998 contrary determination of this issue was based on Blanco's plea, and the juvenile court did not have occasion to decide whether the kitchen knife met the criteria outlined in Welfare and Institutions Code section 707, subdivision (b). Collateral estoppel did not bar the trial court from deciding this purely legal question, using Blanco's own prior admissions to the probation officer. (People v. Conley (2004) 116 Cal.App.4th 566, 570-571; People v. Reed (1996) 13 Cal.4th 217, 223; In re Pedro C. (1989) 215 Cal.App.3d 174, 181.)
When the whole record is viewed in a light most favorable to the verdict, it establishes at most a suspicion that Blanco concealed the kitchen knife. However, "[e]vidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "To justify a criminal conviction, the trier of fact must be reasonably persuaded to a near certainty. The trier must therefore have reasonably rejected all that undermines confidence." (People v. Hall (1964) 62 Cal.2d 104, 112.) The evidence against Blanco on the question of the circumstances surrounding whether he concealed the kitchen knife is "so fraught with uncertainty as to preclude a confident determination of guilt beyond a reasonable doubt." (People v. Thompson (1980) 27 Cal.3d 303, 324, overruled on other grounds as stated in (People v. Rowland (1992) 4 Cal.4th 238, 260.)
In light of our conclusion, the trial court's finding that Blanco's juvenile adjudication for attempted robbery must be vacated. We need not address Blanco's contention that the use of his prior juvenile adjudication as a prior conviction for purposes of the three strikes law violated his right to a jury trial under the federal Constitution.
III.
We reject Blanco's contention the trial court abused its discretion in refusing to strike one or more of his prior strikes. The trial court, in making that decision, stated: "These are very serious charges on very serious crimes. I'm not about to strike any strikes. I understand, under [People v. Superior Court (1996) 13 Cal.4th 497 (Romero)], I have the discretion to strike strikes; and I'm appreciative of that. I strike strikes when strikes should be stricken. But in this case, both of the defendant's convictions are serious, violent felonies. Robbery — attempted robbery with a knife, and injuring someone in a domestic dispute. They're serious. Just because somebody didn't get killed doesn't mean that they're not serious. [¶] Three strikes law was passed with Mr. Blanco in mind. I am not going to exercise the discretion because it was past. . . . Both of them are recent. Six years is recent. And these crimes that he was convicted of are very serious. [¶] And I think, within, the three strikes law, this is what three strikes law was passed to protect the public. So I'm not going to exercise my discretion to strike the strikes."
The California Supreme Court held, "In ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to [section 1385, subd. (a)], or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
The California Supreme Court further explained, "[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce [ ] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.] [¶] But '[i]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.] Where the record is silent [citation] ['On a silent record in a post- Romero case, the presumption that a trial court ordinarily is presumed to have correctly applied the law should be applicable']), or '[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance' [citation]. Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
Based on Carmony's criteria and Blanco's criminal history, we conclude the trial court did not abuse its discretion. The sentencing judge acknowledged he had discretion to strike the prior under Romero, supra,13 Cal.4th 497, but he declined to do so because Blanco's convictions were for violent felonies which could have caused harm to others.
DISPOSITION
The matter is remanded to the trial court for resentencing.
WE CONCUR: BENKE, Acting P. J. McINTYRE, J.
"So then he ran away and I thought that was it and we kept walkin' to my girl's house. One block away from the house I saw him and six other Mexicans walkin' towards us with crowbars and bats. Then he yells, "Remember me, remember me nigger.' I said, 'Nah, you the nigger' and I pulled out my knife. One of them came up to me and swung a crowbar so I swung my knife and I knew then we were goin' to get jumped so I ran across the street and picked up a bottle and threw it at them. Then I ran to my girl's house and my homeboy ran off the other way. When I turned the corner, that's when I saw the cops. They yelled for me to hit the ground. No, the [M]exicans weren't behind me. I don't know where they went.
"Just before the cops arrested me I threw the knife on the ground. They couldn't see the knife, I don't think. I was trippin' cuz there was all kinds of cops everywhere and I was wearin' all blue, cuz I'm a Crip. Then they found the knife. I was tryin' to explain but they wouldn't listen. I was drunk too."