Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. GA069219 Leslie Brown, Judge.
Edward J. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Kenneth Fitts appeals from a judgment entered after a jury convicted him of attempted murder, discharge of a firearm in a school zone and grand theft, and found gang and firearm enhancement allegations to be true. The trial court sentenced him to 35 years in prison, which included a 20-year term for the firearm enhancement under Penal Code section 12022.53, subdivision (c).
Further statutory references are to the Penal Code.
Fitts contends his conviction for attempted murder must be reversed because there is insufficient evidence of his specific intent to kill the victim. He also contends the trial court erred in imposing the firearm enhancement under section 12022.53, subdivision (c), because the verdict form did not require the jury to make a finding under this particular subdivision of section 12022.53.
We find that the attempted murder conviction is supported by substantial evidence of Fitts’s specific intent to kill. We also conclude that the trial court properly imposed the firearm enhancement under section 12022.53, subdivision (c). The information included an allegation under subdivision (c), and the jury instructions referenced subdivision (c). Although the verdict form did not specifically reference subdivision (c), the jury made the requisite factual finding necessary for imposition of the penalty under subdivision (c)—personal and intentional discharge of a firearm—when it found true the allegation under subdivision (d)—personal and intentional discharge of a firearm causing great bodily injury to the victim.
As we explain in more detail below, the trial court did not sentence Fitts under subdivision (d) of section 12022.53 despite the jury’s true finding on that allegation, because the court found insufficient evidence of great bodily injury.
BACKGROUND
An information charged Fitts with attempted murder (§§ 187, subd. (a), & 664; count 1), discharge of a firearm in a school zone (§ 626.9, subd. (d); count 2), and grand theft person (§ 487, subd. (c); count 4). It also alleged that in the commission of the attempted murder a principal personally used a firearm (§ 12022.53, subds. (b) & (e)), and personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (d) & (e)), which caused great bodily injury to the victim (§ 12022.53, subd. (d)). On counts 1 and 2 for attempted murder and discharge of a firearm in a school zone, the information also included a great bodily injury enhancement allegation under section 12022.7, subdivision (a), and a criminal street gang enhancement allegation under section 186.22, subdivision (b)(1)(A).
The trial court dismissed count 3 for second degree robbery before trial on Fitts’s section 995 motion.
May 6, 2006 Grand Theft Person
On May 6, 2006, 17-year-old Fitts, a member of the Squiggly Lane Gangsters Blood criminal street gang, was walking in Pasadena with Travell Thompson, another member of the Squiggly Lane Gangsters. Thompson is the son of the founding member of the gang, which had about 80 active members that law enforcement knew about.
Joyce Chase was sitting at a bus stop at the corner of Lincoln and Wyoming. Fitts walked past her and then Thompson rode by her on a bicycle. Fitts turned around, approached her and “snatched” her purse. Fitts ran away with Thompson. Chase called the police. Shortly thereafter, Fitts and Thompson were detained, and the purse was returned to Chase.
Fitts confessed to the police, stating that he was only “playing around” when he grabbed Chase’s purse. Fitts also stated that, after he took the purse, he “became afraid and ran away.” At trial, Fitts’s counsel conceded that he was guilty of grand theft person based on the facts of this incident.
June 2, 2006 Attempted Murder and Discharge of Firearm in School Zone
The June 2, 2006 offenses occurred outside John Muir High School in Pasadena. The school is located at Lincoln and Wyoming streets, the same vicinity where the above-described grand theft took place less than a month earlier. A couple of years before this shooting, Fitts and Travell Thompson attended John Muir High School. Fitts withdrew from the school in February 2004, during his sophomore year. At the time of the shooting, the attempted murder victim, Michael Grigsby, lived across the street from John Muir High School and also was a former student there. Grigsby was a member of the Project Gangsters Blood criminal street gang. Members of this gang were “violent enemies of the Squiggly Lane Gangsters, ” the gang to which Fitts and Travell Thompson belonged.
In addition to evidence that Fitts and Grigsby were rival gang members, there is evidence indicating that Fitts and Grigsby had come into contact with one another before. The gang expert testified that field investigation cards prepared by police officers demonstrate that on March 3, 2005, Fitts and Grigsby were together at a common location when they were contacted by the police. The expert did not testify about where Fitts and Grigsby were or what they were doing on that occasion, or the nature of their contact with the police.
Two John Muir High School students, Le’Mon Taylor and Daniel Robles, witnessed the incident on Friday, June 2, 2006. At about 1:00 p.m., they were outside the high school. There was a fair or pep rally going on inside the school grounds. Michael Grigsby and another man walked by. Grigsby was Taylor’s friend. Robles recognized Grigsby as a former John Muir High School student. The young men greeted each other. Taylor and Robles pointed out a place where Grigsby could climb the fence to get onto school grounds.
About five minutes later, Fitts and Thompson walked by Taylor and Robles. Both Taylor and Robles recognized Fitts and Thompson, and they knew Thompson’s first name. Taylor also knew that Thompson was a Squiggly Lane Gangster, and that Grigsby was a gang member from another set of Bloods. As they had just done with Grigsby, Taylor and Robles pointed out to Fitts and Thompson the part of the fence where they could climb over to get onto school grounds. Fitts and Thompson walked over to Grigsby and the other man, and it appeared to Taylor that they had a conversation. Robles did not hear any arguing.
At trial, Taylor testified that he heard “people yelling” before the shooting. But he did not state who was yelling, or what was being yelled.
The man with Grigsby slid through an opening in the fence and waited on the other side. Grigsby climbed over the fence. Fitts grabbed the fence and reached up over it with a gun in his hand. He fired one shot. Taylor believed that the gun Fitts used was a “.22 [because] a.22 is not that loud.” The bullet struck Grigsby in the calf. At the time of the shooting, Fitts was 5 feet, 5 inches tall and the fence that he reached over was about six feet high.
Fitts put the gun in his pocket, and he and Thompson jogged away from the scene. They were laughing. According to Robles, Thompson said to Fitts: “‘Blood, you shot him in the back!’” Fitts responded: “‘Blood, let’s go! Let’s go.’”
At trial, Taylor and Robles claimed not to remember much about the shooting and denied knowing the identity of the shooter. The prosecutor played for the jury recorded statements that Taylor and Robles had given to the police after the shooting. Both young men selected a photograph of Fitts and identified him as the shooter, and identified Thompson as the man who was with Fitts.
At trial, the prosecutor informed the jury that Grigsby had been shot in the left calf, not the back. The prosecutor presented evidence that there was blood on the ground where Grigsby was shot, but did not present evidence demonstrating the nature or seriousness of Grigsby’s injury. By the time the investigating officer arrived at the scene, Grigsby already had been taken to the hospital.
A gang expert testified at trial. We do not summarize all of that testimony here because Fitts concedes there is sufficient evidence in the record demonstrating that “he acted for the benefit of his gang.” Suffice it to say, the expert testified that a shooting of a Project Gangster by a Squiggly Lane Gangster under the circumstances described in this case would be done to benefit the gang.
Verdicts, Motion for New Trial and Sentencing
The jury found Fitts guilty of attempted murder and found true the firearm enhancement allegation under section 12022.53, subdivision (d) (personal and intentional discharge of a firearm proximately causing great bodily injury), and the criminal street gang enhancement allegation. The jury also found Fitts guilty of discharge of a firearm in a school zone and found true the great bodily injury enhancement allegation under section 12022.7, subdivision (a), and the criminal street gang enhancement. The jury also returned a guilty verdict for grand theft person.
Fitts moved for new trial, arguing there was insufficient evidence of great bodily injury within the meaning of sections 12022.53, subdivision (d), and 12022.7, subdivision (a), to support the jury’s true findings on these special enhancement allegations. He also argued there was insufficient evidence of intent to kill to support his conviction for attempted murder. The trial court partially granted Fitts’s motion for new trial, finding insufficient evidence of great bodily injury, but sufficient evidence of intent to kill.
The prosecution filed a motion requesting that the trial court impose a firearm enhancement under section 12022.53, subdivision (c), or, in the alternative, grant a new trial on the firearm enhancement allegation under section 12022.53, subdivision (d), so the prosecution could have another opportunity to prove great bodily injury. The prosecution asserted that its failure to ask the jury to make a finding on a special allegation under subdivision (c) was a “technical defect.” The information included an allegation under subdivision (c), and the jury instructions referenced subdivision (c). The prosecution argued that there could be no prejudice to Fitts because the jury made the requisite factual findings required under subdivision (c)—personal and intentional discharge of a firearm—when it found true the allegation under subdivision (d)—personal and intentional discharge of a firearm, which proximately caused great bodily injury to the victim. The prosecution contended that subdivision (c) is “a lesser and necessarily included offense of [subdivision] (d) since the greater cannot be committed without also committing the lesser.” Fitts filed an opposition, arguing that the trial court could not impose the enhancement under subdivision (c) because the jury did not make a finding on an enhancement allegation under subdivision (c).
The trial court granted the prosecution’s motion for imposition of the enhancement under section 12022.53, subdivision (c). The court stated that the jury made the requisite factual findings when it found that a principal personally and intentionally discharged a firearm, which proximately caused great bodily injury to the victim, within the meaning of subdivision (d). The court reiterated that, in partially granting Fitts’s motion for new trial, it found that the evidence of great bodily injury was insufficient. It did not find insufficient the evidence supporting the jury’s finding of personal and intentional discharge of a firearm.
The trial court sentenced Fitts to 35 years in prison: the low term of five years for attempted murder, plus 10 years for the gang enhancement and 20 years for the firearm enhancement under section 12022.53, subdivision (c). The court stayed a three-year sentence for discharge of a firearm in a school zone, and imposed a concurrent two-year term for the grand theft.
The minute order from the sentencing hearing and the abstract of judgment incorrectly reflect an additional stayed three-year term on count 2 (discharge of a firearm in a school zone) for the great bodily injury enhancement under section 12022.7, subdivision (a). As discussed above, the trial court found insufficient evidence of great bodily injury and did not impose this enhancement. The parties agree that these clerical errors should be corrected, and we order the judgment modified accordingly, as set forth below in the disposition.
DISCUSSION
I. Sufficiency of Evidence of Intent to Kill
Fitts contends his conviction for attempted murder must be reversed because there is insufficient evidence demonstrating he specifically intended to kill Grigsby. We disagree.
We review a claim of “insufficient evidence by examining the entire record in the light most favorable to the judgment below. [Citation.] We review to determine if substantial evidence exists for a reasonable trier of fact to find the counts against the [defendant] true beyond a reasonable doubt.” (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) “Substantial evidence must be reasonable, credible, and of solid value. [Citation.] We also presume the existence of every fact the [jury] could reasonably deduce from the evidence....” (Ibid.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for 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 upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
In order for a jury to find a defendant guilty of attempted murder, the prosecution must prove the defendant specifically intended to kill the victim and took a direct, but ineffectual, act toward killing that victim. (People v. Smith (2005) 37 Cal.4th 733, 739.) The jury may infer the requisite specific intent from the defendant’s acts and the circumstances of the crime. (Id. at p. 741.) For example, “the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive—the very act of firing a weapon ‘“in a manner that could have inflicted a mortal wound had the bullet been on target”’ is sufficient to support an inference of intent to kill. [Citation.].... Finally, even if the shooting was not premeditated, with the shooter merely perceiving the victim as ‘a momentary obstacle or annoyance, ’ the shooter’s purposeful ‘use of a lethal weapon with lethal force’ against the victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill. [Citation.]” (Id. at p. 742.)
After Fitts and Thompson approached Grigsby, and Grigsby climbed over a fence to get onto school grounds, Fitts reached his arm over the fence and shot Grigsby “at close range, without legal excuse.” (People v. Smith, supra, 37 Cal.4th at p. 742.) The record is devoid of evidence indicating that Grigsby was armed, had threatened Fitts or otherwise provoked the attack.
Fitts asserts that evidence of the circumstances of the crime “leads to the inference that Fitts intended only to wound or scare Grigsby.” Fitts points out that he only fired one shot, which struck Grigsby in the calf. He also notes that the evidence shows that he and Thompson were laughing while they jogged away. These facts do not preclude a finding of specific intent to kill. Fitts asks us to review the evidence in the light most favorable to him and to draw only inferences which tend to show that he is innocent of attempted murder. This we cannot do.
The manner in which Fitts fired—reaching his arm over a fence and shooting at a person on the other side—supports a reasonable inference that Fitts “acted with express malice.” (People v. Smith, supra, 37 Cal.4th at p. 742.) Moreover, as Fitts and Thompson jogged away, Thompson expressed his belief that Fitts had shot Grigsby in the back: “Blood, you shot him in the back!” Fitts’s response to this was not surprise or an indication that he had only intended to strike a part of Grigsby’s body which would produce a nonfatal wound. Instead, Fitts replied, “Blood, let’s go! Let’s go, ” and jogged away laughing.
Fitts argues that the only evidence of his specific intent to kill Grigsby was the expert’s testimony (1) that Fitts and Grigsby were rival gang members, and (2) that members of Fitts’s gang kill rival gang members, including members of Grigsby’s gang, to enhance their status in the neighborhood. This is not correct. As we just discussed, the manner in which Fitts fired the shot at Grigsby, coupled with Fitts’s conduct after he shot Grigsby, constitutes substantial evidence of Fitts’s specific intent to kill Grigsby. Nonetheless, the gang evidence demonstrates a motive which is “probative of proof of intent to kill.” (People v. Smith, supra, 37 Cal.4th at p. 742.)
The expert testified, in pertinent part: “[K]illing a rival gang member is what they do. Violence is what gangs do. They’re not out selling cookies. They’re not trimming trees. Their job is to increase their status, to make more money to survive is to kill. And that is the quickest way to gain a reputation. To increase your status within a gang or to increase the overall gang status in the neighborhood.... First and foremost, you kill a rival gang member. It’s about sheer numbers. If there’s more of us than there are of you, we’re going to be stronger. The more of them you kill, the stronger your gang is going to be because there are strengths in numbers. It also takes away another rival gang member and another person who could potentially kill you or one of your friends. So simply, you kill them first....” In testifying about the hypothetical shooting of a Project Gangster by a Squiggly Lane Gangster, the expert also stated: “Trying to kill a rival gang member. Having the devotion to carry a weapon and to shoot for his gang, for his brothers, and he’ll receive praise and his reputation will continue to grow because of that act of violence and the more acts of violence he commits, the more murders he commits, the higher up his reputation....” The expert conceded that not all gang members are “killers.”
Fitts discusses cases in which appellate courts have concluded there was insufficient evidence to uphold a gang enhancement based solely on an expert’s unsupported opinion that the defendant acted on behalf of the gang. (In re Frank S., supra, 141 Cal.App.4th at pp. 1196, 1199; People v. Ramon (2009) 175 Cal.App.4th 843, 846, 851; In re Ochoa (2009) 179 Cal.App.4th 650, 653, 662-663.) Fitts’s reliance on these cases is misplaced for numerous reasons. First, he is not challenging the imposition of the gang enhancement. Second, the gang expert did not opine on whether Fitts had the specific intent to kill Grigsby. Rather, he opined that a Squiggly Lane Gangster’s shooting of a rival Project Gangster under the circumstances presented in this case would be for the benefit of his gang because one of the activities of a criminal street gang is to kill rival gang members. Third, there is substantial evidence of Fitts’s specific intent to kill that is separate and apart from the gang expert’s testimony, as discussed above.
II. Imposition of Firearm Enhancement Under Section 12022.53, Subdivision (c)
Fitts contends the trial court erred in imposing the firearm enhancement under section 12022.53, subdivision (c), because the verdict form did not ask the jury to make a separate finding under this particular subdivision. Fitts cites subdivision (j) of section 12022.53, which provides, in pertinent part: “For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.” The trial court’s imposition of the firearm enhancement under section subdivision (c) complies with subdivision (j).
The information included an allegation under subdivision (c), and the jury instructions referenced subdivision (c). The jury made the finding under subdivision (d) that “a principal personally and intentionally discharged a firearm, [a] handgun, which proximately cause[d] great bodily injury to Michael Grigsby.” Imposition of the enhancement under subdivision (c) required a finding that Fitts personally and intentionally discharged a firearm. Thus, the jury made the requisite finding. Subdivision (j) provides that the fact required under subdivision (c) must be found true by the trier of fact (or admitted by the defendant); it does not state that the trier of fact must indicate that it is making the finding under the particular subdivision under which the court thereafter imposes the penalty.
The cases Fitts relies on are inapposite because in each of those cases the prosecution failed to give the defendant notice in the information that it sought to have the defendant sentenced under a particular statutory provision. (See People v. Mancebo (2002) 27 Cal.4th 735, 743; People v. Botello (2010) 183 Cal.App.4th 1014, 1026-1027 [“the information charged each defendant with personally committing acts specified in the firearm enhancements of section 12022.53, subdivisions (b) through (d), but did not mention the applicability of those enhancements through subdivision (e)(1), either by designation of that provision or by description of the required circumstances”; “to apply section 12022.53, subdivision (e)(1) for the first time on appeal would violate the express pleading requirement of that provision, and defendants’ due process right to notice that subdivision (e)(1) would be used to increase their sentences”]; People v. Arias (2010) 182 Cal.App.4th 1009, 1017, 1020-1021.) Here, the information specifically referenced subdivision (c).
Because Fitts had proper notice of the particular enhancement to be imposed, and the jury made the factual findings required under section 12022.53, subdivision (c), the trial court properly imposed this enhancement.
In arguing against imposition of the firearm enhancement, Fitts cites People v. Mendez (2010) 188 Cal.App.4th 47, 62-68, a case in which the Court of Appeal concluded that the defendant’s sentence of 84 years to life constituted cruel and unusual punishment. The defendant in that case was convicted of carjacking, assault with a firearm, and seven counts of second degree robbery, with gang and firearm enhancements. The appellate court noted that defendant, who was sentenced when he was 18 years old, did not injure anyone or discharge a firearm, but would be past his life expectancy at the time he would be eligible for parole. (Id. at pp. 62-64.) The defendant argued, correctly, that his sentence “amount[ed] to a de facto sentence of life without parole.” (Id. at p. 62.)
DISPOSITION
The superior court is directed to correct the following clerical errors: in the abstract of judgment and the February 22, 2010 minute order, delete the reference in count 2 to the great bodily injury enhancement under Penal Code section 12022.7, subdivision (a). As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation..
We concur: MALLANO, P. J.ROTHSCHILD, J.
It is not clear from his briefs whether Fitts is asserting a cruel and unusual punishment argument. To the extent that he is, we reject it. Fitts’s sentence of 35 years for attempting to murder his victim for the benefit of his gang, and ultimately shooting his victim in the leg, does not constitute cruel and unusual punishment. We also reject his argument about “the equities of imposing all the enhancements sought by the prosecution.” There is no dispute that Fitts personally and intentionally discharged a firearm. The penalty for doing so is 20 years. (§ 12022.53, subd. (c).)