Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF11698. Gregg L. Prickett, Judge. Judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const..
Brett Harding Duxbury, 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, Jeffrey J. Koch, and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Defendant and appellant Richard Onesmo Aldama, Jr., appeals his conviction of various counts of attempted murder, shooting at an occupied vehicle, assault with a deadly weapon, and criminal conduct in furtherance of a criminal street gang. He contends the evidence is insufficient to support a gun use enhancement as to one of the attempted murder counts, and that the trial court unconstitutionally deprived him of a defense as to one count. We strike and vacate one enhancement finding, modify the sentence accordingly, and otherwise affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The instant charges arise from two incidents that occurred at different times and places on the same day.
In the first incident, Anna Montejo and her friend Steven Caldera were in Montejo’s car. As they were waiting to enter traffic from the driveway of a gas station and convenience store, they saw a white Ford Tempo pass by. They recognized the passenger, defendant, who was hanging out of the window. Defendant shouted, “West Side Riva,” as he pulled out a gun and fired at Montejo and Caldera. The white Ford sped away and merged onto the freeway.
Montejo drove home and called 911. She identified defendant by name as the shooter. In a photographic lineup, both Montejo and Caldera identified defendant’s cousin, Joe Aldama, as the driver of the white Ford. Two.380-caliber casings were recovered in the area where the shooting occurred. Montejo’s car had a recent strike mark on the hood, consistent with a gunshot. Neither Montejo nor Caldera was injured in the incident.
A few hours later, a “flyer party” was taking place at the home of defendant’s uncle. Vincent Villa, Gustavo Villalobos and Daniel Madrigal arrived and attempted to enter the party. The three new arrivals were all wearing Lakers jerseys. They were confronted at the entrance by a group of Riva gang members, who asked them if they were “from” Los Angeles, i.e., whether they had outsider gang affiliations. The newcomers replied that they did not “gang bang.” Israel Sanchez, a bystander, told the newcomers that they did not want any trouble, and that the Lakers fans should probably leave.
As the newcomers turned to leave, a Riva member wearing a Raiders jersey suddenly yelled, “Rubidoux gang,” and pulled out a gun. The gunman punched Villa in the head with the gun, knocking him down. As Villa tried to get up, the gunman hit Villa again on the back of the head, “racked” his gun and threatened to shoot Villa.
The gunman waved the gun and fired into the dirt near the men who were leaving. Sanchez, the bystander, had glanced away, but soon felt a sharp pain in his leg; he had been shot and wounded in the knee. The gunman cried out, “Oh shit! Oh fuck!” Sanchez yelled at the gunman, “You fuckin’ shot me.” The gunman ran after Villa, while Sanchez managed to get to his truck to call 911.
In the meantime, Gustavo Villalobos, one of the men wearing a Lakers jersey, was attacked by several of the Riva gang members. One of the attackers hit Villalobos on the head with a metal flashlight; he was also stabbed under the chin and in his side. Villalobos blacked out for a few minutes.
After the fight, both Sanchez and Villalobos managed to move to the street. Sanchez had called 911. While they were waiting for police to arrive, the gunman approached Sanchez. He was no longer wearing the Raiders jersey. He told Sanchez, “I’m sorry dog” and asked, “Are you all right?” He advised Sanchez to tell police that “someone from L.A.” had done the shooting. When the police arrived, they found defendant hiding in a bedroom. The white Ford Tempo was parked in the driveway of the residence. The Raiders jersey was found on top of a trash can along the side of the house. A.380-caliber shell was found at the scene.
When police interviewed him, Villalobos, the stabbing victim, immediately identified defendant in a photographic lineup as the man who had fired the gun. Sanchez identified defendant as the shooter both in a photographic lineup and in court.
Caldera, a victim in the first incident, and Sanchez, the bystander shooting victim in the disturbance at the party, both feared gang reprisals if they testified. Caldera refused to identify defendant in open court. Sanchez was afraid he would put his or his family’s lives in danger.
As a result of these incidents, defendant was charged by an amended information with: attempted murder of Anna Montejo (Pen. Code, §§ 187, 664), with enhancement allegations that the crime was committed in furtherance of a criminal street gang (Pen. Code, § 186.22, subd. (b)), and personal discharge of a firearm (Pen. Code, §§ 12022.53, subd. (c), 1192.7, subd. (c)(8)) (Count 1); attempted murder of Steven Caldera, with gang and firearm discharge allegations (Count 2); discharging a firearm at an inhabited vehicle (Pen. Code, § 246), with an allegation that he personally used a firearm in the commission of the offense (Pen. Code, §§ 667, 1192.7, subd. (c)(8)), plus a gang allegation (Count 3); active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), with an allegation of personal use of a firearm (Pen. Code, §§ 12022.5, subd. (a), 1192.7, subd. (c)(8)) (Count 4); attempted murder of Gustavo Villalobos (the stabbing victim), with a personal discharge of a firearm allegation (Pen. Code, §§ 12022.53, subd. (d), 1192.7, subd. (c)(8)), and a gang allegation (Count 5); assault with a semiautomatic firearm on Israel Sanchez (Pen. Code, § 245, subd. (b)), with personal infliction of great bodily injury (GBI) (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)), personal use of a firearm (Pen. Code, §§ 12022.5, subd. (a), 1192.7, subd. (c)(8)), and gang allegations (Count 6); and assault with a semiautomatic firearm on Vincent Villa, with personal use of a firearm, personal infliction of GBI, and gang allegations (Count 7).
The jury deadlocked on the GBI allegation as to Villa, who had been struck in the head with the handgun, but otherwise returned verdicts finding defendant guilty on all counts and all the remaining allegations true. The court sentenced defendant as follows: It designated Count 6 (assault on bystander Sanchez) as the principal determinate term. It imposed the aggravated term of nine years on Count 6, and a consecutive three-year term for the GBI enhancement, plus a consecutive 10-year term for the firearm use enhancement, plus a consecutive 10-year term for the gang enhancement. As to Count 1 (attempted murder of Montejo), the court imposed a consecutive term of 15 years to life, plus a consecutive term of 20 years for the firearm discharge enhancement, plus a consecutive indeterminate term of 15 years to life for the gang enhancement. As to Count 2 (attempted murder of Caldera), the court imposed a concurrent sentence of 15 years to life, plus concurrent enhancement sentences of 20 years for the firearm discharge and 15 years to life for the gang allegation. As to Count 3 (discharging a firearm at an occupied vehicle), the court imposed a concurrent term of 15 years to life. As to Count 4 (participation in a gang), the court imposed the middle term of two years, stayed under Penal Code section 654. As to Count 5 (attempted murder of Villalobos, the stabbing victim), the court imposed an indeterminate term of 15 years to life, consecutive to Count 1, plus a consecutive indeterminate term of 25 years to life for the firearm discharge, plus an indeterminate term of 15 years to life for the gang enhancement. The court stayed the gang enhancement on Count 5, pursuant to Penal Code section 654. As to Count 7 (assault on Villa), the court selected the middle term of six years, plus four years for personal use of a firearm, plus 10 years for the gang enhancement; all these terms were to run concurrently. The total unstayed, consecutive terms added up to 142 years to life.
It appears that defendant was also sentenced to three years on the GBI enhancement despite the jury deadlock and the court’s dismissal of that enhancement. To that extent, defendant’s sentence is unauthorized and may be corrected at any time. We order the three-year sentence on the GBI enhancement vacated. We further order the abstract of judgment corrected to strike any sentence on the GBI enhancement as to count 7. A copy of the corrected abstract is to be forwarded to the Department of Corrections and Rehabilitation.
Defendant filed a timely notice of appeal.
ANALYSIS
I. The Gun Use Enhancement as to Count 5 Must Be Stricken and the Sentence on That Enhancement Vacated
A. Standard of Review
Defendant first contends that the evidence was insufficient to support imposition of a gun use enhancement as to Count 5, the stabbing of victim Villalobos. Although defendant couches his contention in constitutional terms, i.e., that imposition of the enhancement in the absence of sufficient evidence violates his constitutional right to due process, the issue is one of sufficiency of the evidence.
“Where there is a claim of insufficient evidence, ‘we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.] ‘Unless it is clearly shown that “on no hypothesis whatever is there sufficient substantial evidence to support the verdict” the conviction will not be reversed. [Citation.]’ [Citation.]” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329.)
Of course, “[t]he legal sufficiency of undisputed evidence to support a conviction is a question of law which we review de novo. [Citation.]” (People v. Villalobos (2006) 145 Cal.App.4th 310, 316, fn. 3.)
In addition, to the extent that the contention turns on the proper construction of the statute, we also review the matter de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
B. Defendant Did Not “Personally and Intentionally Discharge” a Firearm “in the Commission of” the Attempted Murder of Villalobos
In Count 5, defendant was charged with the attempted murder of Villalobos, the stabbing victim. Attached to that count was an allegation, pursuant to Penal Code section 12022.53, subdivision (d), that defendant had “personally and intentionally discharged a firearm and proximately caused great bodily injury,” to the victim. The allegation echoes the language of the statute, providing greatly enhanced punishment for “any person who, in the commission of a [specified] felony... personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice....” (Pen. Code, § 12022.53, subd. (d), italics added.)
As defendant points out, on the undisputed facts here, defendant’s discharge of the firearm at the party resulted in the wounding of bystander Sanchez. It was not the source of injury to Villalobos, who was a victim of stabbing, not the victim of any gunshot fired by defendant, or anyone else. Defendant’s firing of the gun was already complete before the Riva gang members set upon Villalobos. The discharge of the gun did not proximately cause Villalobos’s injuries, which came about by stabbing. The discharge of the firearm was not causatively or logically connected to the stabbing.
The words “in the commission of,” bear the connotation both of contemporaneousness, and causation. The legislative history of the provision supports this conclusion: “Section 12022.53, also known as the ‘10-20-life’ law (Assem. Bill No. 4 (1997-1998 Reg. Sess.)), was enacted in 1997 to substantially increase the penalties for using firearms in the commission of enumerated felonies.... [Citations.] The statute prescribes sentence enhancements (prison terms of 10 years, 20 years, and 25 years to life) for increasingly serious circumstances of firearm use. [Citations.]” (People v. Palmer (2005) 133 Cal.App.4th 1141, 1148-1149, italics added.)
The People rely on People v. Zarazua (2008) 162 Cal.App.4th 1348 for the notion that the discharge of a firearm can cause personal injury indirectly. There, the defendants, three gang members, fired their guns from their car at rival gang members. The rival gang members sped away in their own car. The rival gang members, in the course of their flight, ran a stop sign and crashed into another car, killing a young boy. The court held that the vehicular death was a direct, natural and probable consequence of the defendants’ discharge of their firearms. (Id. at p. 1362.)
People v. Zarazua is inapposite here, however. There was no logically causative nexus between defendant’s discharge of his firearm and the injury to Villalobos. The only argument proffered is that, by firing his weapon, defendant signaled to Villalobos that, if Villalobos resisted any attack by the Riva gang members, the other gang members might try to kill Villalobos. Contrary to the People’s argument, however, it was not foreseeable that, as a result of defendant’s discharge of the firearm, other gang members would a short time later attack and attempt to kill Villalobos with a knife.
There was no causative nexus between defendant’s discharge of the firearm and the attack upon and injury to Villalobos. Accordingly, the firearm discharge enhancement as to Count 5 must be stricken. The sentence will be modified to vacate the term of 25 years to life for the firearm discharge enhancement.
II. There Was No Evidence to Support an Instruction on the Defense of Accident
A. Standard of Review
Defendant next contends that the trial court’s refusal to instruct on the proffered theory of accident as to Count 6 (assault on bystander Sanchez) violated his constitutional rights to due process, to present a defense, and to have a jury trial on all issues in his case.
Again, even though defendant urges that the failure to give a requested instruction violated his federal constitutional rights, we are called upon to determine whether the defense theory proffered was supported by substantial evidence. “A party is entitled to a requested instruction if it is supported by substantial evidence”; conversely, “instructions not supported by substantial evidence should not be given.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.)
B. There Was No Evidence of Accident
Defendant points to evidence that, after he had fired the gun, and Sanchez had been struck and injured by the bullet, defendant was heard to yell, “Oh shit! Oh fuck!” Somewhat later, defendant had approached Sanchez, apologized, and expressed concern. He told Sanchez, “I’m sorry dog” and asked, “Are you all right?” Defendant also tried to preemptively deflect blame from himself, urging Sanchez to tell police that “someone from L.A.” had shot Sanchez. Based on these facts, defendant requested that the court instruct the jury on a defense of accident. The trial court denied the requested instruction, on the ground that there was insufficient evidence to support the instruction.
The trial court properly refused the requested instruction. Nothing in the evidence presented at trial suggested that defendant did not intend to discharge the gun; the evidence to which defendant points indicates, at most, that he intentionally discharged the gun, but did not intend specifically to shoot Sanchez. Defendant only became dismayed after firing the gun, because his bullet struck an unintended person. Otherwise, however, defendant was actively manipulating the gun. He used it to beat Villa on the head, he “racked” the gun and threatened to shoot Villa, he waved it about, and pulled the trigger. There was no struggle during which the gun accidentally discharged, there was no bump or collision that could have caused the gun to go off accidentally, defendant did not slip or lose his balance. The evidence presented was consistent only with an intentional discharge of the gun in a crowded area. The sole evidence of “accident” concerned who was struck by the bullet, once the gun was intentionally fired.
In any case, any error in failing to instruct on an affirmative defense was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705].)
DISPOSITION
The firearm discharge enhancement associated with Count 5 (attempted murder of Villalobos) was unsupported by any evidence, and must be stricken. The sentence on the stricken enhancement must be vacated. Defendant’s sentence must be modified accordingly, to delete the 25-year-to-life sentence on that enhancement. We also order the abstract of judgment amended to reflect this change, and a copy of the corrected abstract forwarded to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Miller, J.