Opinion
E071489
11-12-2019
THE PEOPLE, Plaintiff and Respondent, v. RANJODH SINGH GILL, Defendant and Appellant.
James M. Crawford for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Steve Oetting, Anthony Da Silva, Warren J. Williams, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1705225) OPINION APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. James M. Crawford for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Steve Oetting, Anthony Da Silva, Warren J. Williams, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Ranjodh Singh Gill got into a dispute with a prostitute over the amount of her fee. After she got into a car, driven by a female friend, he pulled out a gun and fired one shot into the car; he only barely missed the two women.
After a jury trial, defendant was found guilty of discharging a firearm at an occupied motor vehicle. (§ 246.) He was sentenced to seven years (the upper term) in prison.
This and all further statutory citations are to the Penal Code, unless otherwise indicated.
Defendant now contends that the trial court erred by:
1. Failing to instruct on the lesser included offense of discharging a firearm in a grossly negligent manner. (§ 246.3, subd. (a).)
2. Denying probation.
3. Imposing the upper term.
4. Using facts not found by the jury and not found beyond a reasonable doubt in denying probation and in imposing the upper term.
5. Imposing fines and fees without holding a hearing regarding defendant's ability to pay them.
Finding no prejudicial error, we will affirm.
I
FACTUAL BACKGROUND
A. The Case for the Prosecution.
Elizabeth Banda Rodriguez had a friend who was a prostitute. On November 1-2, 2017, around midnight, Rodriguez drove her friend to an assignation at a motel in Riverside. Rodriguez dropped her off and waited in the parking lot.
Rodriguez then saw her friend come out of the motel room, followed by defendant. Her friend said that defendant did not have the money they had agreed on. She suggested that they follow him to an ATM. Defendant replied that that "wasn't going to happen." He wanted the friend to go with him to the ATM, in his car, instead.
The friend got into Rodriguez's car, then yelled, "He has a gun. Go." Rodriguez saw defendant pull out a gun. She hit the gas and "took off." At almost the same time, defendant fired. The bullet broke the rear driver's-side window and lodged in the back of the passenger seat.
A security video showed that, if Rodriguez had stepped on the gas just a second later than she did, the bullet would have gone straight in the front driver's side window, and thus likely would have killed her or her friend.
The parties have not had the video transmitted to this court. We therefore rely on descriptions of it in the record.
A search of defendant's motel room revealed a handgun and a methamphetamine pipe, both hidden inside the toilet tank.
B. The Case for the Defense.
According to defendant, he and the prostitute had agreed to a price of $200; after he gave her the $200, however, she demanded $300. They agreed that they would go to an ATM together.
There was a knock on the door; the prostitute opened it. Defendant saw a man, weighing 200 to 220 pounds, almost bald, with many tattoos, including a tattoo of "L.A." on his face. The man said, "Let's go," then went downstairs and got into a car. Defendant and the prostitute followed him.
The video showed the driver of the car getting out, going up to the motel room door, and coming back down again. Rodriguez testified that she was the driver seen in the video and was wearing the clothing shown. Defense counsel argued, however, that the driver seen in the video was much larger than Rodriguez.
Instead of getting into defendant's car, the prostitute got into the man's car. The man started calling defendant racial slurs, then said he was going to run him over.
Defendant stepped sideways and pulled out his gun to protect himself. As he did so, it went off accidentally. He denied aiming it at the car. He hid the gun and the methamphetamine pipe because he was afraid he was going to get in trouble.
When the police interviewed defendant, he denied that there was any shooting at all; at trial, he explained that he lied because he was ashamed of being involved with a prostitute.
II
FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSE
Defendant contends that the trial court erred by failing to instruct on the lesser included offense of discharging a firearm in a grossly negligent manner.
"'"[A] trial court must give '"'instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.'"' [Citation.] . . . "Substantial evidence" in this context is "'evidence from which a jury composed of reasonable [persons] could . . . conclude[]'" that the lesser offense, but not the greater, was committed.' [Citation.]" [Citation.]' [Citation.]" (People v. Bell (2019) 7 Cal.5th 70, 108-109.)
Discharging a firearm in a grossly negligent manner (§ 246.3, subd. (a)(3) [section 246.3(a)(3)]) is a lesser included offense of discharging a firearm at an occupied motor vehicle (§ 246). (People v. Bell, supra, 7 Cal.5th at p. 108.) The key difference between them is that section 246 requires that a specific target — here, an occupied vehicle — be in the defendant's "firing range"; section 246.3(a)(3) does not. (People v. Bell, supra, at p. 108; People v. Ramirez (2009) 45 Cal.4th 980, 986, 990; People v. Overman (2005) 126 Cal.App.4th 1344, 1362.)
Defendant argues that there was evidence from which the jury could have concluded that he did not aim — i.e., that he "did not intentionally target the vehicle." However, that would not take his conduct outside the scope of section 246. "'The crime of shooting at an occupied vehicle "is not limited to shooting directly at [the] occupied target." [Citation.] Rather, the applicable statute "proscribes shooting either directly at or in close proximity to an . . . occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it."' [Citation.]" (People v. Bell, supra, 7 Cal.5th at p. 109; accord, People v. Phung (2018) 25 Cal.App.5th 741, 761.)
Obviously, whether the car was his intended target or not, defendant did shoot "at" it — his bullet broke a car window and went into the passenger seat. Moreover, while the video has not been transmitted to us, it reportedly showed defendant walking slowly and "directly" up to the driver's side of the car, facing toward it, immediately before he fired. He did not have to have conscious disregard with respect to striking a person — only with respect to striking the car . Thus, if he pulled the trigger intentionally at all, he did so in close proximity to an occupied vehicle under circumstances showing conscious disregard. The central factual question for the jury (aside from self-defense) was whether he fired intentionally, and thus was guilty under section 246, or unintentionally, in which case he was not guilty at all.
Defendant states: "A jury could have convicted [defendant] of section 246.3 based on his testimony that he accidentally discharged the firearm . . . ." Not so. "Both offenses require that the defendant willfully fire a gun." (People v. Ramirez, supra, 45 Cal.4th at p. 990.) His claim of accidental discharge was a claim of total innocence.
Finally, defendant cites our opinion in People v. Overman, supra, 126 Cal.App.4th 1344. There, however, we held that the trial court should have instructed on the lesser because there was no evidence regarding the direction in which the weapon was fired; in particular, "no bullet holes or points of impact were found . . . ." (Id. at pp. 1362-1363.) Here, by contrast, there was incontrovertible evidence of exactly which way the gun was pointing. The jury was even taken outside to view the bullet hole in Rodriguez's car.
The trial court therefore had no duty to instruct on the offense of discharging a firearm in a grossly negligent manner.
III
DENIAL OF PROBATION
Defendant contends that the trial court abused its discretion by denying probation.
A. Additional Factual and Procedural Background.
In a sentencing memorandum, as well as at the sentencing hearing, defense counsel asked the trial court to grant probation. The trial court, however, denied probation. It stated: "In my view, the factors to deny probation outweigh those in support of a grant, particularly Rule 4.414, sub (a), sub (1), circumstances, nature of the crime are serious compared to other instances of the same crime." "This is one of the most serious cases I have ever seen for shooting at an occupied vehicle, came within [a] whisper, a hair's brea[d]th of death." "And . . . the driver of the vehicle suffered emotional injury. She was very distraught on the stand, broke down at one point."
It added: "This is crazy behavior. Why you feel you have the need to pack heat with you when you're walking around in an apartment complex [sic] is beyond me. Why you think you have to use it is beyond me. You're clearly a serious danger to society."
B. Discussion.
Preliminarily, the People respond that defendant's trial counsel forfeited this contention by failing to object. We disagree. Defense counsel properly preserved the issue by requesting probation in the sentencing memorandum and at the hearing. (See People v. Jones (2009) 178 Cal.App.4th 853, 859; but cf. People v. Sperling (2017) 12 Cal.App.5th 1094, 1101-1102 [raising issue in sentencing memorandum but not at hearing was insufficient to preserve it].)
"A trial court has broad discretion to determine whether a defendant is suitable for probation. [Citation.] . . . An appellant bears a heavy burden when attempting to show an abuse of such discretion. [Citation.] To establish abuse, the defendant must show that, under all the circumstances, the denial of probation was arbitrary, capricious or exceeded the bounds of reason. [Citation.]" (People v. Bradley (2012) 208 Cal.App.4th 64, 89.)
"A trial court abuses its discretion if it relies upon circumstances that are not relevant to, or that otherwise constitute an improper basis for, the sentencing decision. [Citation.]" (People v. Shenouda (2015) 240 Cal.App.4th 358, 369.)
California Rules of Court, rule 4.414 lists aggravating and mitigating factors that the trial court can consider in deciding whether to grant probation. A single aggravating factor is sufficient to justify the denial of probation. (See People v. Mehserle (2012) 206 Cal.App.4th 1125, 1158; see also People v. Yim (2007) 152 Cal.App.4th 366, 369.) However, probation cannot be denied based on a fact that is an element of the crime. (People v. Parrott (1986) 179 Cal.App.3d 1119, 1124-1125.)
One factor the trial court can consider is "[t]he nature, seriousness, and circumstances of the crime as compared to other instances of the same crime . . . ." (Cal. Rules of Court, rule 4.414(a)(1).) The trial court found that defendant's crime was more serious than other instances of shooting at an occupied vehicle. Defendant argues that this finding was erroneously based on facts that were elements of the offense. This argument, however, uses sleight of hand — defendant cites the probation officer's reasons for recommending denial of probation, not the trial court's actual reasons for denying probation. The trial court relied on the fact that defendant came close to killing the victims, who were spared only because Rodriguez stepped on the gas at the very last second. It concluded, quite reasonably, that this was a particularly egregious instance of shooting at an occupied vehicle.
The trial court can also consider "[w]hether the defendant inflicted physical or emotional injury . . . ." (Cal. Rules of Court, rule 4.414(a)(4).) Here, the trial court found that Rodriguez did suffer emotional injury.
Finally, the trial court can also consider "'[t]he likelihood that if not imprisoned the defendant will be a danger to others." (Cal. Rules of Court, rule 4.414(b)(8).) Here, it found that defendant was "a serious danger to society." This finding was not based on the bare elements of the crime. Rather, it was based on the fact that defendant was walking around with a loaded gun, for no apparent reason, and chose to use that gun.
Defendant argues that a number of mitigating factors applied; he claims that he lacked a prior record, that he was remorseful, and that he was willing to comply with the terms of probation. Actually, he had a 2009 conviction for misdemeanor theft. Moreover, obviously he had engaged in the uncharged misdemeanor conduct of soliciting a prostitute. (§ 647, subd. (b)(2).) It is also significant that, while he was out on bail in this case, he was arrested for attempted unlawful taking or driving of a vehicle, receiving stolen property, identity theft, possession of a controlled substance, and possession of paraphernalia.
At one point, the probation report indicates that these were two separate arrests. Later, however, it indicates that there were six separate arrests.
The cited portion of the record does not show remorse — much less "deep remorse," as defendant claims. He merely told the probation officer that he "just wishes he had never taken the gun with him." In other words, he blamed the gun, not himself. This is not remorse; it is merely wishing the whole thing had never happened.
"[E]ven if there were several mitigating factors that might weigh in favor of probation, this does not necessarily mean that the trial court abused its discretion in deciding against granting probation." (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530-1531.) "Sentencing courts have wide discretion in weighing aggravating and mitigating factors. [Citation.] Indeed, a trial court may 'minimize or even entirely disregard mitigating factors without stating its reasons.' [Citation.]" (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) Here, it was not outside the bounds of reason to conclude that the aggravating factors outweighed any mitigating factors.
IV
IMPOSITION OF THE UPPER TERM
Defendant contends that the trial court abused its discretion by imposing the upper term.
A. Additional Factual and Procedural Background.
The trial court imposed the upper term because it found that the crime "involved great violence, threat of great bodily harm, high degree of cruelty, callousness, viciousness. And also . . . serious danger to society."
B. Discussion.
Once again, the People respond that defendant's trial counsel forfeited this contention by failing to object. This time, we agree. (People v. Scott (1994) 9 Cal.4th 331, 353; see also People v. Jones, supra, 178 Cal.App.4th at p. 859 [imposition of upper term without considering mitigating factors]; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1511-1512 [imposition of upper term without stating reasons].)
However, defendant also contends, alternatively, that his trial counsel's failure to object to the upper term constituted ineffective assistance. We therefore discuss the merits of the upper term issue under this rubric.
California Rules of Court, rules 4.421 and 4.423 list aggravating and mitigating factors that the trial court can consider in deciding whether to impose the lower, mid, or upper term. As with the denial of probation, "[a] fact that is an element of the crime on which punishment is being imposed may not be used to impose a particular term." (Cal. Rules of Court, rule 4.420(d).) Also as with the denial of probation, we review the imposition of the upper term under the deferential abuse of discretion standard. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
Defendant argues, essentially, that every instance of shooting at an occupied motor vehicle involves great violence, a high degree of cruelty, callousness, viciousness, and so on. But not so. For example, a defendant could shoot out the tires of a stationary vehicle to prevent it from moving. We may assume that many — or even most — instances of shooting at an occupied vehicle do involve cruelty and great violence. Nevertheless, these are not elements of the crime.
In addition, the trial court distinguished this shooting from the ordinary or average instance of shooting at an occupied vehicle based on how close it came to being a homicide. This was not an abuse of discretion. Many such shootings occur at some distance from the vehicle, while the vehicle is moving. They are often car-to-car. Sometimes, the shooter misses the vehicle altogether. If, on the other hand, the shooter is close to the vehicle, the vehicle is stationary, the shooter has a good view of the occupant, and the shot is well-aimed, the crime is likely not to be charged as shooting at an occupied vehicle at all - it will be charged as attempted murder.
In any event, comparing a crime to other instances of the same crime is not an actuarial or statistical process. The trial court was entitled to rely on its experience. Here, it concluded that this was "one of the most serious cases [it] ha[d] ever seen for shooting at an occupied vehicle . . . ." Defendant has not shown that this conclusion was unreasonable.
Once again, defendant argues that the trial court disregarded applicable mitigating factors. In so arguing, however, he cites some mitigating factors that apply only to the decision to grant or deny probation and not to imposition of the upper term - e.g., willingness to comply with the terms of probation and the likely effect of imprisonment. (Compare Cal. Rules of Court, rule 4.414 with id., rule 4.423.)
Once we disregard these, there are only two even arguable mitigating factors: First, that defendant had an insignificant prior record (Cal. Rules of Court, rule 4.423(b)(1)); however, as already discussed, he did have a prior conviction, plus arrests while on bail. Second, satisfactory prior performance on probation (Cal. Rules of Court, rule 4.423(b)(6)); however, the trial court could reasonably find that this was outweighed by the aggravating circumstances of the current offense. "Trial courts need not state reasons for rejecting or minimizing a mitigating factor, particularly where no objection is raised. [Citations.]" (People v. King (2010) 183 Cal.App.4th 1281, 1322.)
We therefore conclude that the trial court did not err by imposing the upper term.
V
TRIAL COURT FACT-FINDING AT SENTENCING
Defendant contends that the trial court violated his right to trial by jury at sentencing, both by denying probation and by imposing the upper term based on facts not found by the jury and not found beyond a reasonable doubt.
Under well-established law, this contention is frivolous.
"[T]he Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.] '[T]he relevant "statutory maximum"' . . . 'is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.' [Citation.]" (Cunningham v. California (2007) 549 U.S. 270, 274-275; accord, Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)
With respect to the imposition of the upper term, we reject this contention on the authority of People v. Sandoval, supra, 41 Cal.4th 825. Under section 1170, subdivision (b), as it now stands, the upper term is the relevant statutory maximum. Accordingly, a trial court can constitutionally impose the upper term based on facts not found by the jury beyond a reasonable doubt. (Sandoval, supra, at pp. 843-845; see also People v. Jones, supra, 178 Cal.App.4th at pp. 866-867.)
With respect to the denial of probation, we similarly reject this contention on the authority of People v. Benitez (2005) 127 Cal.App.4th 1274. "Finding a defendant ineligible for probation is not a form of punishment, because probation itself is an act of clemency on the part of the trial court. [Citation.] Because a defendant's eligibility for probation results in a reduction rather than an increase in the sentence prescribed for his offenses, it is not subject to the rule [stated above]. [Citations.]" (Id. at p. 1278.)
VI
FAILURE TO HOLD AN ABILITY-TO-PAY HEARING
Defendant contends that the trial court erred by imposing fines and fees without determining whether he had the ability to pay them.
A. Additional Factual and Procedural Background.
At sentencing, the trial court imposed a $2,100 restitution fine (§ 1202.4, subd. (b)), a court security fee of $40 (§ 1465.8, subd. (a)(1)), and a conviction assessment fee of $30 (Gov. Code, § 70373, subd. (a)(1)), for a total of $2,170. Defense counsel did not object to these fines and fees.
It also imposed a booking fee of $514.58. (Gov. Code, § 29550.2, subd. (a).) Defendant does not challenge the booking fee.
B. Discussion.
Defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, which held that due process prohibits the imposition of a criminal fine or fee in the absence of a hearing on the defendant's ability to pay. (Id. at pp. 1160, 1164-1172.)
The People argue that defense counsel forfeited defendant's present contention by failing to object. Recently, however, in People v. Jones (2019) 36 Cal.App.5th 1028, this court held that, in cases where the defendant was sentenced before Dueñas was decided, failure to object does not result in forfeiture, because an objection would have been futile. (Jones, supra, at pp. 1031-1034; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 488-489; People v. Johnson (2019) 35 Cal.App.5th 134, 137-138; contra, People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 .)
Jones further held, however, that a Dueñas error may be held harmless if the record demonstrates that the defendant could not have shown inability to pay. (People v. Jones, supra, 36 Cal.App.5th at p. 1035.) That is the case here.
Defendant had an associate's degree. He was a trained diesel mechanic. When he was arrested, he owned his own trucking company, and he was "earning very good money." He was using $40 worth of methamphetamine a week. He stayed at the same motel "on a weekly basis." And evidently he had money for prostitutes.
In other words, defendant could have paid the fines out of his savings on methamphetamine alone in about a year.
After his arrest and before trial, defendant closed his trucking business, but he was employed as a truck driver, earning $2,000 a month net. His expenses were minimal (presumably because he was living with his parents) — only $1,550 a month. Thus, he had discretionary income of $450 a month.
We therefore conclude that the error was harmless. (See People v. Johnson, supra, 35 Cal.App.5th at p. 139 [Dueñas error in imposing $370 in fines was harmless when defendant "worked off and on as a painter and a municipal cleaner"].)
VII
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.