Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF135077 Craig G. Riemer, Judge.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Teresa Torreblanca and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant, Ronnie Joe Abner, of two counts of attempted willful, premeditated and deliberate murder (Pen. Code, §§ 664 & 187, subd. (a)), during which he discharged a firearm (§ 12022.53, subd. (c)), discharging a firearm at an inhabited house (§ 246), during which he used a firearm (§ 667) possessing a handgun by an ex-felon (§ 12021, subd. (a)(1)), discharging a firearm from a motor vehicle (§ 12034, subd. (c)) and possessing ammunition by an ex-felon (§ 12316, subd. (b)(1)). In bifurcated proceedings, based on his admission to having been convicted, the trial court found that he had suffered a prison prior (§ 667.5, subd. (b)), seven serious prior convictions (§ 667, subd. (a)), and seven strikes (§ 667, subds. (c) & (e)(1). He was sentenced to prison for life, with a minimum parole eligibility of 33 years, plus 26 years. He appeals, claiming the evidence was insufficient to support his convictions for attempted murder and the trial court’s finding that he suffered one of the seven strike priors. We reject his first contention, agree with the second and affirm the judgment, save the true finding on one of the strike priors, while directing the trial court to correct errors in the minutes of the sentencing hearing and abstracts of judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
1. Sufficient Evidence of Intent to Kill
Both victims testified that on February 17, 2007, around 7:30 p.m., defendant drove his truck back and forth slowly on the street running along the side of the first victim’s house and on the street in front of his house several times, looking at them as they sat talking on the first victim’s front porch. Defendant eventually stopped his truck in the street in front of the first victim’s house about 10 feet from the first victim’s pickup truck, which was parked at the curb in front of his house, and 50 feet from the front porch. The driver’s side of defendant’s truck faced the first victim’s house and it was aligned with the first victim’s pickup truck-the front bumper of defendant’s truck was at the rear bumper of the first victim’s truck. According to the testimony of the first victim and an exhibit which defendant wanted this court to consider, the rear of the first victim’s pickup truck was in a direct line between the driver’s seat of defendant’s truck and the front porch. After defendant’s female companion leaned forward and looked in the direction of the victims, the first victim saw defendant move as though he was pulling a gun out and defendant fired two bullets in rapid succession. Both victims saw the muzzle flashes of the nine-millimeter semiautomatic handgun. One of the two bullets fired went through the driver’s side “wall” of the bed of the first victim’s pickup truck at the back, up near the top of the bed at the tail light, and into the passenger side “wall”, eventually stopping before exiting the exterior of that wall. Another bullet perhaps ricocheted, making a dent slightly right of the center of the first victim’s garage door, with the front porch being to the left of the garage door. Both victims stated that they had been “shot at” and the first victim had checked himself after the shooting stopped to see if he had been wounded. Neither victim knew defendant nor the woman who was with him. Nothing had been said at the scene of the shooting or afterwards as to why it had been done.
In his reply brief, defendant asserts that the People’s categorization of defendant’s pre-shooting looking at the victims as stalking is speculative. While labeling defendant’s behavior as stalking may be speculative, there is no speculation involved in reporting that the victims testified that defendant repeatedly looked at them when making several passes in his truck along the side and the front of the first victim’s house and that defendant’s female companion looked at them before defendant began firing.
The facts that this truck had nothing extending over the top of the bed “walls” (no camper shell, no other structure) and that the first victim saw defendant in his truck appear to be getting a gun and both saw the muzzle flashes from his gun establish that there was an unobstructed line from defendant to the victims, over the bed of the first victim’s pickup truck.
The People misunderstand Exhibits 10 and 12 by asserting that the bullet strike on the garage door was closer to where the victims were on the front porch than the first victim’s pickup truck. First, no one testified as to the measurements between the strike on the garage door and the front porch. It would have to be less than 40 feet, as defendant was 50 feet from the front porch and 10 feet from the first victim’s pickup truck. Second, Exhibits 10 and 12 suggest that the distance between the garage door strike and the front porch was either greater than the distance between the first victim’s pickup truck and the front porch, or they were equidistant. However, since the most logical explanation for the garage door strike was that it was caused when a bullet ricocheted, the real question was where that bullet actually hit, and there is no evidence on this matter.
The defense conceded to the jury that defendant was guilty of all the charged offenses except the attempted murders. As to those, it argued that the evidence was insufficient to prove that defendant had the intent to kill-rather, the defense claimed that defendant purposefully shot into the first victim’s truck and at the Suburban sport utility vehicle (SUV) that was parked in the driveway close to where the garage door had been hit with a ricocheting bullet in order to frighten the victims or to send them a message. However, there was no evidence of any relationship between defendant and the victims or any basis upon which the victims could deduce any such message. The prosecutor, on the other hand, argued that the intent to kill was demonstrated by defendant “scoping out” the victims as he drove by numerous times before shooting, and, again, just before the shooting by his female companion, and shooting in their direction, albeit having bad marksmanship. As to defendant’s theory that he just meant to shoot up the first victim’s vehicles to frighten him or send a message, the prosecutor argued to the jury that defendant could have done that when the victims were not nearby on the front porch.
Defendant here seeks to reargue the case as he did below to the jury, i.e., that the evidence was insufficient to show he intended to kill the victims. He concedes that the manner of the shooting can support a finding of intent, but distinguishes the 50 foot distance between himself and the victims here from shorter distances in other cases in which a finding of intent to kill could have been or was upheld. (In re Rosenkrantz (2002) 29 Cal.4th 616, 671 (Rosenkrantz); People v. Campos (2007) 156 Cal.App.4th 1228, 1244 (Campos).) However, neither of these cases are similar factually to this case, therefore, they did not assist in a discussion of whether the evidence here was sufficient to support the jury’s finding.
In Rosenkrantz, the California Supreme Court, in dicta, concluded that evidence that the defendant had purchased an Uzi and ammunition, gone to a firing range and practiced shooting it, told a coworker he was planning to kill his brother, who was a companion of the victim’s and had participated with the victim in the acts that motivated the defendant’s fatal shooting of the victim, told another coworker that the victim and his brother had humiliated him and he had obtained a gun, located the victim’s residence and waited there all night to confront him, shot him from a distance of five-to-seven feet in multiple bursts, then administered the “coup de gras” by shooting him three or four times in the head as he lay on the ground, supporting a finding of intent to kill. (Rosenkrantz, supra, 29 Cal.4th at pp. 628-629, 671, 673.)
This conclusion was dicta because the jury convicted the defendant of second degree murder and the case concerned the governor’s refusal to grant the defendant parole. (Rosenkrantz, supra, 29 Cal.4th at pp. 625, 627.)
In Campos, the issue was whether the instruction on the kill zone, which is irrelevant to this case, was proper because it required that the defendant intend to kill not only his primary target, but any other person in the zone of harm, although defendant need not intend to kill everyone in that zone. (Campos, supra, 156 Cal.App.4th at p. 1241.) The Campos court concluded that even if the kill zone instruction was defective, reversal was not required because evidence of defendant’s intent to kill was overwhelming in that he, in the company of someone who had a dispute with one of the murder victims, approached the car containing the murder victims and the attempted murder victim, knowing they were inside, and from about six feet away, “sprayed the car with nearly a dozen bullets.” (Id. at pp. 1233, 1244.)
People v. Bland (2002) 28 Cal.4th 313, 329, held that the intent to kill for attempted murder could exist when a person shoots at a group of people, even though only one person in the group is primarily targeted. This occurs when the defendant creates a kill zone, which is when “‘the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.’ [Citation.]” (Ibid.)
Next, defendant appears to suggest that the distance between the shooter and the victim dictates whether an intent to kill or merely a conscious disregard for life insufficient for attempted murder can reasonably be implied, relying on People v. Smith (2005) 37 Cal.4th 733. However, in Smith, the defendant challenged only the sufficiency of the evidence that he intended to kill an infant who was seated behind his mother, the defendant’s intended victim, and was in the line of fire when defendant shot once into the car the mother was driving. (Id. at pp. 736, 738.) The defendant argued that the fact that he fired only one bullet and had no ill will towards the child, as a matter of law, compelled the conclusion that he lacked the intent to kill the child. (Ibid.) The court noted that “the act of purposefully firing a lethal weapon at another human being at close range... 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.... Nor is the circumstance that the bullet misses its mark or fails to prove lethal... --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.]” (Id. at p. 742.) The Smith court concluded that defendant firing one bullet at close range, knowing that the infant was in his line of fire, was sufficient. (Id. at pp. 743, 747.) Smith provides no authority for defendant’s suggestion that the distance between the shooter and the victim determines whether the malice was express or implied. Over and over again, Smith emphasized the facts that the infant was in defendant’s line of fire and defendant knew this-the fact that the defendant was a certain distance from both victims at the time he fired took a back seat to the former facts. (Id. at pp. 743-748.)
As this case was presented to the jury by counsel during argument, there was one of two inferences the jury could derive-that defendant intended to shoot up the first victim’s vehicles, an argument made by the defense, or that defendant intended to shoot and kill the victims, an argument made by the prosecution. The jury chose the latter inference and it was, by far, the more reasonable one. If defendant had intended only to shoot the first victim’s vehicles, he and his female companion would not have stared numerous times at the victims sitting on the front porch before defendant fired his gun. Second, if defendant wanted to leave a message by shooting the vehicles, it is more likely that he would shoot them in places that could easily have been seen or would do the most damage, like the engine, windows, windshield or doors and not some obscure, difficult to detect and insignificant portion like the back end of the truck bed, near the tail light. Both the vehicles were much closer to defendant than the victims, both were substantially larger than the victims and neither was a moving target like the victims. If defendant could not hit both vehicles in obvious places or where maximum damage would be inflicted, he needed to stop using a gun. The victims both stated that defendant “fired at them” further suggesting that his intent was to hit them and not the vehicles, one of which was, from defendant’s perspective, to the right of the victims and not near the clear and direct line between them and defendant. The first victim’s truck which was hit with a bullet, on the other hand, was in that line. Finally, if defendant intended to shoot the vehicles, he would have hit the Suburban (no small vehicle) parked in the driveway, which was much closer to him than the victims sitting on the front porch.
“The proper test for determining a claim of insufficiency of the evidence... is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) Reversal is not appropriate “unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the judgment].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) Based on the facts here, a reasonable trier of fact could find that defendant intended to kill both victims.
2. Sufficiency of Evidence that One of the Priors Was a Strike
The Information alleged that defendant suffered a conviction in 1980 for “second degree burglary while armed[.]” At the trial of the priors, the trial court listed all seven of defendant’s 1980 convictions, including “a count of second-degree burglary” and defendant said he admitted each of them. Defense counsel then asserted that this conviction was neither a strike nor a serious prior under section 667, subdivision (a). The prosecutor responded, “What would make it [a strike or a serious prior] is an allegation [in the Information] that there is a firearm involved. [¶]... [B]ased on what I have and probably what the court has... it qualifies [as] a serious [prior and a] strike [under]... [¶] 1192... [s]ubdivision (c)(8).” Defense counsel responded, “Sorry” and went on to argue that defendant’s arson conviction did not qualify as a serious prior or a strike. Thereafter, in defendant’s sentencing memo, defense counsel stated that defendant had “admitted to seven... felony strike and [section 667, subdivision (a)] priors....” Defendant here states that counsel below “conceded that it qualified [as a serious prior and strike] because ‘there [was] a firearm involved.’”
The trial court and counsel referred to this as a “nickel prior[, ]” no doubt, because it carries a five year enhancement.
That subdivision provides that any felony in which the defendant personally uses a firearm is a serious felony.
Defendant here contends that there was insufficient evidence that the conviction involved him personally using a firearm, as is required by section 667, subdivisions (a), (c) & (e)(2) in order for the conviction to be considered a serious prior and a strike. Neither the Clerk’s Transcript nor the Reporter’s Transcript shows that any exhibits were admitted at the trial of the priors. There is an Exhibit in the Clerk’s Transcript, which contains some information about this conviction, but the evidence sticker does not indicate that it was either marked for identification or admitted. The exhibit list states that it was not identified and under the category, “Admit On” is the notation, “N/A” which the key at the bottom of the list states means “Not Admitted.” Therefore, there is no evidence in the record about the nature of this prior, aside from defendant’s admission.
We agree with defendant that even if his admission covered the allegation in the Information that he committed the burglary “while armed” this would not be sufficient for purposes of section 667, subdivisions (a), (c) & (e)(2) because being armed is not the same as personally using a firearm. (People v. Becker (2000) 83 Cal.App.4th 294, 297.) Therefore, there is an insufficient basis in the record before this court to affirm the true finding that defendant suffered a serious prior conviction or a strike based on his conviction in 1980 for burglary.
Defendant concedes that reversing this finding under section 667, subdivision (a) would have no effect whatsoever on his sentence, because the trial court imposed only one five-year term for all seven of defendant’s serious priors. However, he asserts that remand is appropriate to allow the trial court to dismiss five of the remaining strikes under Romero.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
According to the People below, the 1980 convictions arose out of crimes committed on two different days-the burglary at issue occurred on August 24, 1979. In denying defendant’s Romero motion, the trial court said, “Under the circumstances of those prior convictions, the [c]ourt would be comfortable in [dismissing] all but two of the strikes, given that the offenses all occurred on either one day or a day two or three days later. The [c]ourt has a much harder time justifying striking more than that and bringing the number of strike priors down below two. [¶]... [¶] Given [defendant’s] record, given the nature of his prior crimes, given the seriousness of the crime for which he was found guilty in this case, the [c]ourt really cannot justify, in its own mind, striking enough-enough strikes to bring it down below two. And since two has the same effect as three as four or as five, I don’t think there’s any purpose to be served in striking any of them. So the [c]ourt is going to deny the Romero motion.
We do not agree with defendant that the foregoing remarks by the court indicated a willingness to dismiss any of his remaining six strikes. Therefore, remand is not appropriate.
Disposition
The true finding as to the burglary strike is reversed and the trial court is directed to amend the minutes of the sentencing hearing to note this.
The trial court calculated defendant’s minimum term for the first attempted murder’s life sentence as 33 years. Under section 667, subdivision (e)(2)(A), the minimum term of defendant’s indeterminate term is the greatest of either, 1) three times the seven-year minimum parole eligibility provided by section 3046, without the mandatory enhancements, (Acosta, supra, 29 Cal.4th at pp. 105, 114), which is 21 years, 2) 25 years, or 3) the seven-year term provided by section 3046, plus any mandatory enhancements. (Acosta, at pp 115, 116; Jenkins, supra, 10 Cal.4th at pp. 234, 251.) The 20-year section 12022.53, subdivision (c) enhancement and the five-year section 667, subdivision (a) enhancement are mandatory. (§§ 12022.53, subd. (h); 1385, subd. (b).) The one-year enhancement under section 667.5, subdivision (b) is not mandatory. (§ 1385, subd. (a).) Therefore, the minimum parole eligibility is 7 years plus 20 years plus 5 years, for a total of 32 years, which is precisely what the Crime Time Exposure Calculations attached to the Probation Report states.
The trial court relied upon the People’s assertion that under People v. Dotson (1997) 16 Cal.4th 547, all enhancements, not just mandatory ones, are added to the calculation. However, Dotson involved only mandatory enhancements, therefore, it did not have occasion to hold that non-mandatory enhancements enter the calculation under section 667, subdivision (e)(2)(A). (Id. at p. 553.) People v. Acosta (2002) 29 Cal.4th 105 (Acosta) and People v Jenkins (1995) 10 Cal.4th 234 (Jenkins), which we cite, involved discretionary enhancements.
The trial court is directed to amend the minutes of the sentencing hearing to reflect the fact that the minimum terms for both counts 1 and 2 are 32 years, not seven years as the minutes currently state. The court is further directed to amend the minutes of the sentencing hearing to reflect that it imposed a 20-year term for the section 12022.53, subdivision (c) enhancements for both counts, not 20 years to life for each as the minutes currently state.
The trial court is further directed to fill out and file a determinate abstract of judgment. (There are currently two indeterminate abstracts in the record before this court.) The court is directed to amend the second current indeterminate abstract to omit the reference to the sentence for count 1 being “5 years to life” and for count 2 being “7 years to life” and to state that each sentence is 32 years to life. A copy of the amended abstract is to be sent to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J.MILLER J.
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