Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2008004598, Charles Campbell, Judge.
John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Shira B.Seigle, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Judge
Alexander Joel Mendez appeals from the judgment entered after a jury convicted him of attempted premeditated murder (count 1; Pen. Code, § 664/187, subd. (a)), attempted second degree robbery (count 2; §§ 664/211), assault with a semiautomatic firearm (count 3; § 245, subd. (b)), second degree commercial burglary (count 4; § 459), possession of a firearm by a felon (count 5; § 12021, subd. (a)(1)), and unlawful possession of ammunition (count 6; § 12316, subd. (b)(1)) with special findings that appellant personally and intentionally discharged a firearm (§§ 12022.53, subd. (d); 12022.5, subd. (a)) proximately causing great bodily injury to the victim (§ 12022.7, subd. (a)). Appellant admitted a prior strike conviction (§§ 667, subds. (c) & (e); 1170.12, subds. (a) & (c)) and four prior prison term enhancements (§ 667.5, subds. (a) - (b)). The trial court sentenced appellant to 31 years to life in state prison with possibility of parole (count 1), to be served consecutive to a 30 year determinate sentence (count 3). We strike the one-year prison prior enhancement. We order the judgment modified to show that appellant was sentenced to 30 years to life with possibility of parole on count 1, to be served consecutive to a 30 year determinate sentence on count 3. The judgment, as modified, will be affirmed.
All statutory references are to the Penal Code
Selecting count 3 as the principal term (assault with a semiautomatic firearm; § 245, subd. (b)), the trial court sentenced appellant to 12 years (six-year midterm doubled based on the prior strike conviction), plus three years on the firearm enhancement (§ 120227, subd. (a)), plus 10 years for use of a firearm (§ 12022.5, subd. (a)), plus five years for a prior serious felony conviction (§ 667, subd. (a)). The total aggregate determinate sentence was 30 years state prison.
Facts
Viewed in a light most favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 578), the evidence shows that appellant attempted to rob and kill a liquor store owner in Montalvo. On November 22, 2007, appellant entered Log Cabin Liquor wearing black gloves, a gray baseball cap, and a bandana mask. Pointing a.30 caliber semiautomatic rifle at Shamsher Thind, appellant demanded money.
Thind pushed the rifle away. Appellant shot Thind in the wrist. The bullet also grazed his stomach. Thind struggled with appellant, following him out to the parking lot. Appellant said, "I have to kill you before I leave" and shot Thind in the chest below the heart.
Officers found two shell casings and a gray baseball cap with appellant's DNA on it. The store surveillance footage showed that the shooter was a Hispanic man and wore a black jacket with "Nike" printed on the back.
Thind recognized the shooter and said that he went by the name Alex. Alex worked across the street at Bird Roofing Company from 1994 to 1997 and used to cashed pay checks at the store. Alex visited the store three hours before the robbery and spoke to Thind.
Appellant stipulated that he had been convicted of a felony prior to November 22, 2007, and was subject to GPS monitoring. The GPS tracking device confirmed that appellant was near the store when Thind was shot. Officers searched appellant's Oxnard residence and found a blue bandana and the dark Nike jacket. Black gloves, similar to those used in the robbery were in appellant's car.
In 2008, officers seized a M1 carbine assault rifle during a traffic stop. Appellant's son, Anthony Mendez, was a passenger in the vehicle. Ballistics test confirmed that the rifle was the same rifle used in the November 22, 2007 robbery attempt.
Attempted Premeditated Murder
Appellant argues that the evidence does not support the conviction for attempted premeditated murder. Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223.) " ' "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]' " (People v. Young (2005) 34 Cal.4th 1149, 1182.) Planning, motive, and manner of killing, which are pertinent in determining whether premeditation and deliberation exists, need not be present in any particular combination to find substantial evidence of premeditation and deliberation. (People v. Stitely (2005) 35 Cal.4th 514, 543.)
Planning and motive were clearly established. Appellant disguised himself, entered the store with an assault rifle, and demanded money. When Thind resisted, appellant shot Thind in the wrist. They continued to physically struggle. Appellant said "I can kill you." Outside the store, appellant weighed his options, said "I have to kill you before I leave, " and then shot Thind in the chest. A rational jury could have found that appellant "rapidly and coldly formed the idea to kill" before fleeing. (People v. Brady (2010) 50 Cal.4th 547, 563-564.) Firing a lethal weapon at a human being at close range supports the inference that appellant acted with express malice. (People v. Smith (2005) 37 Cal.4th 733, 741-742.)
Appellant claims that it was a violent struggle and that he acted rashly without premeditation. Appellant, however, retreated to the parking lot and said "I can kill you." Pleading for his life, Thind said "come on, man." Appellant replied, "I have to kill you before I leave."
Appellant shot Thind to avoid identification and apprehension, a motive the jury "could reasonably conclude was imbued with deliberation and premeditation. [Citation.]" (People v. Memro (1995) 11 Cal.4th 786, 863.) "Premeditation and deliberation can occur in a brief interval. 'The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.'' ' [Citation.]" (Id., at p. 863.)
Appellant argues that the conviction violates his due process rights because premeditation and deliberation were not proven beyond a reasonable doubt. A reviewing court must remain mindful of "the deference owed to the tier of fact and, correspondingly, the sharply limited nature of constitutional sufficiency review." (Wright v. West (1992) 505 U.S. 277, 296 [120 L.Ed.2d 225, 241].) While reasonable minds may differ on the issue of premeditation and deliberation, our sole function is to determine if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]" (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573]; see People v. Osband (1996) 13 Cal.4th 622, 690.)
The evidence supports the finding, consistent with due process, that appellant acted with deliberation and premeditation.
Prosecutorial Misconduct
Appellant claims that the prosecution misstated the law by "equating 'intent' with 'premeditation'" in final argument. Appellant forfeited the issue by not objecting and requesting a curative admonition. (People v. Stanley (2006) 39 Cal.4th 913, 959.) On the merits, there was no prejudice. The jury was instructed on deliberation and premeditation (CALCRIM 601) and that counsel's closing argument is not evidence (CALCRIM 222). It is presumed that the jury understood and followed the instructions. (People v. Morales (2001) 25 Cal.4th 34, 47.)
The prosecution argued: "What do we need to prove? Well, that Alexander Mendez acted willfully if he intended to kill when he acted. Did he intend to kill when he pulled the trigger[?] He deliberated if he carefully weighed the considerations for and against his choice and knowing the consequences decided to kill."
The CALCRIM 601 instruction stated: "If you find the defendant guilty of attempted murder under Count 1, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation. [¶] The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting. [¶] The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. [¶] The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved."
Sentence Correction
On count 1 for attempted premeditated murder, the trial court sentenced appellant to life with possibility of parole (doubled pursuant to the Three Strikes law) and added 25 years to life on the firearm enhancement (§ 12022, 53, subd. (d)), plus five years on a prior felony conviction enhancement (§ 667, subd. (a)) and one year on a prison prior enhancement (§ 667.5, subd. (b)).
The prosecutor reminded the trial court that it could not impose a one-year enhancement if the prison prior is based on the same prior conviction used to impose a five-year enhancement. The trial court agreed but inadvertently imposed the one-year prison prior enhancement. The Attorney General concedes that the one-year enhancement should be stricken. (See People v. Jones (1993) 5 Cal.4th 1142, 1150-1153.) "[W]hen multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, only the greater enhancement may apply. [Citation.]" (People v. Coronado (1995) 12 Cal.4th 145, 155.)
Conclusion
We modify the sentence to strike the one-year prison prior enhancement. (§ 667.5, subd. (b).) The judgment is modified to show that appellant was sentenced to 30 years to life with possibility of parole on count 1, to be served consecutive to the 30 year determinate sentence on count 3. (See People v. Mitchell (2001) 26 Cal.4th 181. 185-186 [where discrepancy exists between oral pronouncement of judgment and abstract of judgment, oral pronouncement controls].) The judgment, as modified, is affirmed. The trial court is directed to correct the abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
The clerk's minutes and abstract of judgment do not reflect that a five-year prior conviction enhancement was imposed pursuant to section 667, subdivision (a). The abstract of judgment contains other clerical errors and erroneously states that a 31-year determinate sentence was imposed.
We concur: GILBERT, P.J., PERREN, J.
The trial court imposed and stayed sentences on count 2 for attempted second degree robbery (four-year midterm plus 25 years to life on a firearm enhancement (§ 12022.53, subd. (d)), count 4 for second degree commercial burglary (four-year midterm plus 13 years on the great bodily injury and firearm enhancements (§§ 12022.7, subd. (a)); 12022.5, subd. (a)), count 5 for possession of a firearm by felon (four-year midterm); and count 6 for unlawful possession of ammunition (four-year midterm).
On count 1 for attempted, premeditated first degree murder, the trial court imposed a sentence of life with possibility of parole which was doubled based on the prior strike conviction. The trial court added 25 years to life on the firearm enhancement (§ 12022.53, subd. (d)), plus five years on a prior serious felony conviction enhancement (§ 667, subd. (a)), plus one year on a prior prison term enhancement (§ 667.5, subd. (b)). The 31 year to life indeterminate sentence on count 1 was ordered to run consecutive to 30-year determinate sentence on count 3.