Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Super. Ct. No. 1075820, Clifford R. Anderson III, Judge
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Roy C. Preminger, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Fernando Zavala appeals his conviction, by jury, of assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b)), criminal threats (§ 422), five counts of discharge of a firearm with gross negligence (§ 246.3), and misdemeanor assault. (§ 240.) The jury further found that appellant personally used a firearm to commit each felony and that the offenses were hate crimes. (§§ 422.75, subd. (a), 1203.06, subd. (a)(1), 12022.5, subd. (a)(1).) The trial court sentenced appellant to a total term in state prison of 14 years and 8 months for the felony offenses and to a concurrent 180-day jail term for the misdemeanor. Appellant contends the trial court erred when it denied his motion to suppress, that he was denied due process when the prosecutor alleged more serious charges against him after a mistrial, that the evidence was insufficient to support his conviction of assault with a semi-automatic weapon and to support the hate crime enhancements, that the jury should have been instructed on voluntary intoxication with respect to the criminal threats offense and that errors occurred at sentencing. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
Facts
Umut Ozkan, a native of Cyprus and a taxi cab driver, picked up appellant from a downtown Santa Barbara nightclub at around midnight on April 11, 2002. Appellant had been drinking and employees at the club called for a cab to drive him home. Ozkan asked appellant where he'd like to be taken. He responded, "Take me wherever." Pressed for an address, appellant eventually told Ozkan to take him to Mission and Pedregosa. Ozkan thought appellant had been drinking. During the drive, appellant asked Ozkan where he was from, whether he was married and whether he had kids. When Ozkan told appellant that he was from Cyprus, appellant said, "Don't lie to me. You're from Iran." He said that Iran "took my plane down," and repeated that appellant was lying and was a terrorist. He talked about spending money at the nightclub and complained that his friends all had more money than he did. Appellant asked Ozkan, "Do you know what we did to South American people?" He repeated that Ozkan was a terrorist and that "Iranians put my plane down." Appellant said he was going to kill Ozkan.
At one point during the drive, appellant asked Ozkan to turn on the interior light in the cab. He said he was going to kill Ozkan, drink his blood and put his body in the trunk of a Volvo. Appellant got very close to Ozkan and started pushing and pulling at him. Appellant directed Ozkan to stop in front of a particular house. There was a Volvo parked in the street. Appellant said, "Do you see that red Volvo? This is the car I'm taking. I'm going to kill you and put you in the trunk." Ozkan got out of the cab, opened the passenger side door and asked appellant to leave. He did not. Ozkan got back in the driver's seat. Appellant leaned toward him and asked if he was scared of the stun gun appellant had in his hand. Ozkan said he was. Appellant asked if Ozkan was scared of the gun he had in his boot. Ozkan said he'd had enough. He got out of the cab and started walking away from it as he called 911 on his cell phone.
Appellant got out of the cab and started to follow Ozkan. Ozkan continued to walk away. A noise made him look back, where he saw appellant standing in a driveway, holding a gun. Ozkan could hear appellant saying things like, "Where are you? Come over here. I'm going to kill you." Appellant pointed the gun at Ozkan and fired. He fired several more times as Ozkan ran away.
Ozkan ran about four blocks before he encountered a police officer. By that time, other officers were responding to reports of shots fired at Pedregosa and Prospect Streets. Within a few moments, one of the offices saw appellant walking up the street. Appellant ignored the officer's command to go down to the ground. Instead, he continued walking, telling the officer he was drunk, that he was the victim and that he'd paid the cab driver. Other officers arrived. They took appellant to the ground and handcuffed him. Much of this encounter was video- and audio-taped. On the videotape, appellant can be heard calling Ozkan a terrorist and later, referring to him as "Osama bin Laden." A police officer brought Ozkan to the scene shortly after appellant was handcuffed. He identified appellant as the person who shot at him.
Appellant did not have a gun on his person when he was arrested. Officers found six expended bullet casings in the street, but not the bullets or gun itself. Sergeant Olsen asked appellant, "Do I have your consent to make sure that there's nobody hurt inside the house?" Appellant replied, "Go inside the house. Do you want my keys?" Olsen asked if the door was open; appellant told him it was. A few minutes later, a different officer, Officer Willis, asked, "Can we look inside your house?" Appellant answered, "Hey, go ahead." Willis asked where the keys were and appellant replied, "Hey, hey, hey. Now get a warrant. You're making a mistake." The officer repeated that they were asking for his consent. Appellant said, "Hey, I'm not giving you no consent." A few moments later, Officer Willis again asked for appellant's keys. Appellant said, "Hey! Hey! Go look inside, peek at the [unintelligible] and walk out. No one's hurt."
While appellant was talking to Willis, Sergeant Olsen was walking to appellant's house. He found the door to the house open. From outside, Olsen could see a .45 caliber semi-automatic handgun and ammunition sitting on a table. Olsen did not know that appellant had denied Willis' request for consent to search his house.
Discussion
Motion to Suppress
Appellant contends the trial court erred when it denied his motion to suppress the gun because his consent to the search was coerced and because he was not given Miranda warnings before the police officers asked for his consent. There was no error.
In United States v. Patane (2004) 542 U.S. 630, the United States Supreme Court held that, because the rule announced in Miranda v. Arizona (1966) 384 U.S. 436, "protects against violations of the Self-Incrimination Clause, which, in turn, is not implicated by the introduction at trial of physical evidence resulting from voluntary statements[,]" a failure to give a suspect Miranda warnings does not require "suppression of the physical fruits of the suspect's unwarned but voluntary statements." (United States v. Patane, supra, 542 U.S. at p. 634 [159 L.Ed.2d at p. 673]; see also Ohio v. Robinette (1996) 519 U.S. 33, 35 [Fourth Amendment does not require that a lawfully seized defendant be advised he is free to go before his consent to search is considered voluntary].) Patane, supra, controls the result here. The officers' failure to give appellant Miranda warnings does not require suppression of the handgun unless his consent was involuntary.
Whether appellant voluntarily consented to the search of his house is a question of fact "to be determined from the totality of the circumstances." (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227 [36 L.Ed.2d 854, 93 S.Ct. 2041].) Substantial evidence supports the trial court's finding that appellant voluntarily consented. The officers involved testified that appellant willingly agreed to have them look inside his house for the gun and other possible victims. Appellant was in handcuffs when the officers asked for his consent, but there is no evidence that he was injured, subjected to threats of physical violence, or otherwise coerced. On the audio tape, appellant consents to the search at least three times before telling Officer Willis to get a warrant. Even after he tells Officer Willis to get a warrant, appellant says that Willis can "peek" inside the house. Of course, a "peek" was all the officers required; Sergeant Olsen testified the gun was in plain view from outside the open door. There is no indication that appellant was fearful or in distress when he gave his consent to Sergeant Olsen or when he repeated that consent in response to Willis' questions. Accordingly, the trial court correctly denied the motion to suppress.
Vindictive Prosecution
Appellant was initially charged with attempted murder and one count of assault with a deadly weapon. At his first trial, the jury acquitted appellant of attempted murder but could not reach a verdict on the assault charge. The trial court declared a mistrial. The prosecutor then filed the instant, amended information charging appellant with assault with a semi-automatic firearm (count 1), criminal threats (count 2), five counts of grossly negligent discharge of a firearm (counts 3 through 7) and assault (count 8). These charges carry a higher potential penalty than did the original assault charge. Acting as his own lawyer, appellant filed a demurer to the amended information. He argued that section 654 prohibits multiple prosecutions for the same course of conduct where the prosecution knows or should know at the initial proceeding that the defendant's alleged conduct amounted to more than one offense. He further contended there was no substantial evidence that he acted with multiple criminal objectives and that section 246.3 did not permit multiple prosecutions for discharging the firearm multiple times in a single transaction. The trial court overruled appellant's demurrer because no statutory ground was asserted and because it found that section 654 does not preclude adding new charges to an amended information filed after a mistrial.
Appellant contends on appeal, for the first time, that he was denied due process and subjected to a vindictive prosecution when the prosecutor added more serious charges after the mistrial. Respondent contends appellant waived this claim by failing to raise it in the trial court. We agree. Our Supreme Court settled this issue in People v. Edwards (1991) 54 Cal.3d 787, where it held that a claim of vindictive prosecution is waived if not raised in the trial court. (Id. at p. 827.) Appellant contends he has not waived the vindictive prosecution claim because his demurrer argued that section 654 barred "multiple prosecutions" for offenses committed during a single course of conduct. The Edwards court held, however, that objecting on a related basis is not sufficient to preserve the vindictive prosecution issue for review. "Portions of the defense argument would have been relevant to a claim of vindictive prosecution had that claim been made. The claim, however, was never actually made. The instant contention is not properly before us." (Id.)
Sufficient Evidence of Assault with Semi-Automatic Firearm
Appellant contends the evidence is insufficient to support his conviction of assault with a semi-automatic firearm in violation of section 245, subdivision. (b). This offense requires proof that appellant was "aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur." (People v. Williams (2001) 26 Cal.4th 779, 788. fn. omitted.) Although he concedes that he fired a semi-automatic firearm, appellant contends there is no substantial evidence that he aimed the weapon at Ozkan. As a result, appellant claims, there is no evidence he was aware of facts that would lead a reasonable person to believe a battery would directly, naturally and probably result from his conduct.
When reviewing the claim that a verdict is not supported by substantial evidence, " ' the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence which is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' (People v. Hawkins (1995) 10 Cal.4th 920, 955 [42 Cal.Rptr.2d 636, 897 P.2d 574].)" (People v. Welch (1999) 20 Cal.4th 701, 758.) We resolve all conflicts in favor of the judgment and may not substitute our assessment of a witness' credibility for that of the trier of fact. (People v. Mayfield (1997) 14 Cal.4th 668, 735; People v. Garcia (1993) 17 Cal.App.4th 1169, 1183.)
The victim testified that he was walking away from his cab when he heard the sound of a slide being pulled to load a firearm. This caused him to look back, where he saw appellant standing in a driveway, pointing a gun at him. Moments later, Ozkan saw the flash from the muzzle of the gun and heard a shot. This testimony, standing alone, is sufficient to allow a reasonable trier of fact to find that appellant fired the gun not in the air or randomly, but directly at Ozkan, satisfying the intent element of the offense. Accordingly, substantial evidence supports appellant's conviction of assault with a semi-automatic firearm.
Substantial Evidence Supports the Hate Crime Enhancements
The hate crimes statute in effect when appellant committed these offenses provided that a person who commits a felony "because of the victim's race, color, religion, nationality, country of origin, ancestry, disability, gender or sexual orientation, or because he or she perceives that the victim has one or more of those characteristics, shall receive an additional term of one, two, or three years in the state prison, at the court's discretion." (Former § 422.75, subd. (a).) Appellant contends there is insufficient evidence that he shot at Ozkan for these reasons, rather than shooting because he was intoxicated or upset about money he lost at the nightclub. We disagree.
Ozkan testified that appellant said many times that he thought Ozkan was an Iranian and a terrorist. Appellant accused Ozkan of taking "my plane down." He repeated these same comments to the arresting officers, calling Ozkan, "Osama bin Laden," a terrorist, an Arab and an Iranian. Neighbors testified that they heard a man in the street yelling "Fucking terrorists," and "You're killing innocent people." The man yelled that he was not afraid of "Arabs" and "terrorists." This evidence is sufficient to permit a reasonable trier of fact to conclude that appellant believed Ozkan was of Iranian or Arab descent and that belief was a substantial factor in causing appellant to shoot at Ozkan. (People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, 741.)
Refusal to Instruct on Voluntary Intoxication
Appellant contends the trial court erred when it refused his request to instruct the jury on voluntary intoxication in connection with the criminal threats charge in count 2 of the amended information. Respondent contends the instruction was properly refused because there was no substantial evidence that appellant was incapable of forming the specific intent required for a that offense. We conclude the trial court erred in refusing the instruction but that the error was harmless.
"[W]ith the abolition of diminished capacity as a defense, 'Intoxication is now relevant only to the extent that it bears on the question of whether the defendant had the requisite specific mental state.' (People v. Saille [(1991)] 54 Cal.3d [1103,] 1119.) An instruction relating intoxication to any mental state is therefore 'now more like the "pinpoint" instruction' that '[is] not required to be given sua sponte.' (Ibid.)" (People v. Castillo (1997) 16 Cal.4th 1009, 1014.) The specific mental state required to violate section 422 is the intent that one's willful threat to commit a violent crime will "be taken as a threat" by the person to whom it is directed. (§ 422.) "[T]he determination whether a defendant intended his words to be taken as a threat . . . can be based on all the surrounding circumstances and not just on the words alone." (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340, superseded by statute on another ground as noted in People v. Franz (2001) 88 Cal.App.4th 1426, 1442.) One relevant "surrounding circumstance" is whether the defendant acted on his expressed intention. (Id. at p. 1341.)
Appellant requested that the jury be instructed to consider his voluntary intoxication in determining whether he actually formed that specific intent. The trial court refused the instruction on the erroneous ground that section 422 is a general intent crime. This error is "subject to the usual standard for state law error: 'the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant.' (People v. Humphrey [(1996)] 13 Cal.4th [1073], 1089.)" (People v. Mendoza (1998) 18 Cal.4th 1114, 1134-1135.)
We conclude there is no reasonable probability the failure to instruct on voluntary intoxication adversely affected appellant. The overwhelming evidence was that appellant had a very high blood alcohol level but was nevertheless capable of speaking understandably, walking, loading and firing a weapon, and coherently answering questions posed to him by law enforcement only minutes after he stopped shooting. Appellant repeatedly threatened to kill Ozkan and within a few minutes, carried through on his threat by shooting at Ozkan. On this record, we can discern no reasonable probability that a properly instructed jury would have found appellant too intoxicated to form the specific intent that Ozkan take his threats of violence seriously. The trial court's error was harmless.
Sentencing Error
Appellant contends the trial court erred when it sentenced him to consecutive terms of 16 months each for his convictions on the criminal threats charge and the charge that he discharged a firearm in a grossly negligent manner. He contends section 654 bars multiple punishment for these offenses because they occurred as part of an indivisible course of conduct, incident to a single criminal objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Alternatively, he contends the sentences should have been imposed concurrently rather than consecutively. We are not persuaded.
With respect to each count, the term imposed is one-third the midterm for the offense plus one-third the midterm for the hate crimes enhancement.
Section 654 subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The statute thus precludes multiple punishments for a single act or for an indivisible course of conduct that is intended to accomplish a single criminal objective. " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Latimer, supra, 5 Cal.4th at p. 1208, quoting Neal v. State of California (1960) 55 Cal.2d 11, 19.)
Whether the bar on multiple punishments applies "is a question of fact for the trial court, which is vested with broad latitude in making its determination." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) We will affirm the trial court's findings "if there is any substantial evidence to support them." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We view the evidence in light most favorable to the sentencing order and presume in support of that order every fact that may reasonably be deduced from the record. (Id. at pp. 1312-1313.)
Appellant contends that the criminal threats he made against Ozkan and the shots he fired in Ozkan's direction were part of a single, indivisible course of conduct that should have been subject to only one punishment. We disagree. The criminal threats appellant made against Ozkan continued throughout the cab ride. Appellant did not begin shooting, however, until the cab stopped and Ozkan began to walk away from it. Appellant's threats did not facilitate the shooting or vice versa. His threats were directed toward Ozkan alone, but he fired the gun on a public street in a residential neighborhood, endangering everyone in the adjacent structures. The offenses involve different types of conduct and were separated in time and in place. Accordingly, the trial court properly found these were separate offenses subject to separate punishments. For the same reasons, we conclude the decision to impose consecutive terms was not an abuse of discretion. (People v. Bradford (1976) 17 Cal.3d 8, 20.)
Appellant contends the trial court also violated section 654 when it imposed consecutive hate crimes enhancements on both the criminal threats and negligent firing convictions because appellant's bias was directed at a single person for purposes of both crimes. We disagree. Section 654 did not apply to the underlying offenses. Each was properly the subject of a separate punishment. Because the sentences for the substantive offenses were not required to be stayed pursuant to section 654, their accompanying enhancements were not required to be stayed. (See, e.g., People v. Bracamonte (2003) 106 Cal.App.4th 704, 709 [enhancements must be stayed where sentence is stayed pursuant to section 654].)
Conclusion
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.