Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA095371 Philip H. Hickok, Judge.
Diane E. Berley, 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, Assistant Attorney General, Stephanie A. Miyoshi and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant Tommie Lee Baker appeals from a judgment entered after a jury convicted him of count 1, attempted murder of Antonio Godinez (Godinez) in violation of Penal Code sections 664 and 187, subdivision (a); count 2, attempted carjacking of Godinez in violation of sections 664 and 215, subdivision (a); count 3, attempted carjacking of Lynette Godinez in violation of sections 664 and 215, subdivision (a); count 4, attempted carjacking of Antonio Godinez, Jr., in violation of sections 664 and 215, subdivision (a); and count 5, attempted carjacking of Felis Vargas (Vargas) in violation of sections 664 and 215, subdivision (a).
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found true the allegations that as to count 1, defendant personally used and discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivisions (b), (c) and (d); as to counts 2 through 5, that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b); as to counts 1 and 2 that defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). It was also found true that as to each count that the offense was a serious felony within the meaning of section 1192.7, subdivision (c); that defendant had suffered two prior convictions for which he served prison terms as described in section 667.5, subdivision (b); that defendant had suffered one prior serious felony conviction pursuant to section 667, subdivision (a)(1); and that defendant had suffered a prior conviction of a serious or violent felony or juvenile adjudication pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i).
Defendant was sentenced to an indeterminate term of 25 years to life on count 1 pursuant to section 12022.53, subdivision (d). He was also sentenced to serve a consecutive determinate term of 33 years calculated as follows:
Count 1: the upper term of nine years, doubled to 18 years pursuant to section 1170.12, subdivisions (a) through (d). The trial court stayed the remaining allegations.
Count 2: one third the middle term of two and a half years (10 months) for the conviction of sections 664, 215, subdivision (a), doubled to 20 months pursuant to section 1170.12, subdivisions (a) through (d), plus one third the middle term of 10 years (three years four months) pursuant to section 12022.53, subdivision (b); and an additional five years pursuant to section 667, subdivision (a)(1).
Counts 3 and 4: stayed pursuant to section 654.
Count 5: one third the middle term of two and a half years (10 months) for the conviction of sections 664, 215, subdivision (a), doubled to 20 months pursuant to section 1170.12, subdivisions (a) through (d); plus one third the middle term of 10 years (three years four months) pursuant to section 12022.53 subdivision (b).
We affirm and remand for resentencing.
CONTENTIONS
Defendant contends that: (1) the trial court erred in admitting a gun into evidence; (2) the sentence for count 2, attempted carjacking of Godinez must be stayed pursuant to section 654; (3) the trial court improperly relied on the same facts that constituted the elements of the charged crime as factors supporting the imposition of the upper term in count 1; (4) CALJIC No. 2.11 improperly instructs that the defense may have an obligation to produce evidence; and (5) CALJIC No. 2.13 improperly lessens the People’s burden of proof.
FACTS AND PROCEDURAL HISTORY
On May 12, 2006, Godinez’s young children were waiting in the backseat of his van while he walked to the gate to give water to his dog. The van was parked on the street, the side passenger door was open, and the engine was running. Godinez saw defendant get into his van on the driver’s side. Godinez grabbed a stick, hit defendant, and tried to pull him out. Defendant pointed a gun at Godinez. Godinez then shut the driver’s side door, walked behind the van, and attempted to get his children out from the passenger side. Defendant followed Godinez and shot at him twice, hitting him in the right side of the back of his head. Godinez survived, but as of the time of trial had been unable to drive due to blindness in the left corner of both eyes.
In the meantime, Godinez’s neighbor Vargas, who had seen defendant get into Godinez’s van, had turned her car around and attempted to park. Vargas also saw Godinez hit defendant with a stick and try to get him out of the van. She saw defendant shoot Godinez. After shooting Godinez, defendant approached Vargas and unsuccessfully attempted to open her locked car door. Defendant was holding the gun, carrying a backpack and wearing a black support work belt. Vargas covered her face and did not open the door. Defendant then ran away.
Vargas’s granddaughter, Jessica Rodriguez (Rodriguez), looked out her window after hearing gunshots, and saw defendant wearing black pants, a gray shirt, and a black support work belt, running along the street carrying a backpack. Another neighbor, Fidelina Landaverde (Landaverde), also saw defendant running along the street. Nearby market owner Darrell Reynolds saw defendant running with a backpack. Defendant told him that people were shooting at him.
Defendant was detained by transit officers at a county building and turned over to sheriff’s deputies. A backpack containing a rubber glove and a black support belt was found outside the building. A blue rubber glove containing a black cotton glove was found in the bathroom near where defendant was detained. Gunshot residue was found on defendant’s hands.
Vargas and Rodriguez positively identified defendant as the perpetrator shortly after the shooting at a field showup. Rodriguez was able to identify defendant by his clothing. In court, however, both Vargas and Rodriguez denied seeing the assailant’s face. Landaverde identified defendant at trial as the man she saw running.
Five months later, on October 9, 2006, a.357-Magnum caliber revolver was recovered near where defendant had been arrested. The gun, which was covered in rust, contained two spent casings and three live.357-caliber rounds. Defense counsel’s pretrial motion to exclude the handgun was denied by the trial court. A criminalist for the Los Angeles County Sheriff’s Department testified that a damaged and deformed fired bullet core was recovered from Godinez’s body when he was treated. The bullet core was consistent with the bullet core of a.357-Magnum caliber bullet. It could have been fired from the gun that was recovered.
DISCUSSION
I. The trial court did not abuse its discretion in admitting the recovered gun into evidence
Defendant contends that the trial court erred in admitting the recovered gun into evidence. We disagree.
We first note that the People urge that defendant’s failure to object below on the ground of relevancy waives the objection on appeal. But, as defendant points out, while defense counsel did not expressly object on relevancy grounds, the argument below was essentially based on relevancy. (People v. Partida (2005) 37 Cal.4th 428, 434-435 [an objection need not be precise or formalistic to preserve an issue].) Accordingly, we shall address defendant’s contentions on appeal and thus need not entertain defendant’s claims that he is not precluded from raising for the first time on appeal a claim asserting the deprivation of fundamental constitutional rights, or that his counsel was ineffective in not making the proper objections.
Relevant evidence includes all evidence having any tendency in reason to prove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) Pursuant to Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. On appeal, the trial court’s rulings concerning the admissibility of evidence are reviewed for abuse of discretion. (People v. Riggs (2008) 44 Cal.4th 248, 289.)
We find that the trial court did not abuse its discretion in admitting the gun, despite defendant’s contention that its relevance was minimal. Defendant charges that the gun could have been hidden by any individual patronizing the government welfare building where the gun was located, and that its only relevance was the location. But, the gun was found in the vicinity of defendant’s arrest, near where gloves and a backpack containing a black support belt were found. Defendant had been identified by witnesses as carrying a backpack and wearing a black support work belt. In addition, the gun was rusty, leading to the inference that it had lain in the bushes for months. Moreover, Godinez was shot twice in the head, and the gun contained two spent cartridges. The two cartridges were of a type consistent with the bullet fragment recovered from the victim. As the trial court stated, defense counsel was free to argue the weight of the gun evidence to the jury.
Even if the trial court had erred in admitting the gun, the evidence of defendant’s guilt was overwhelming. (People v. Watson (1956) 46 Cal.2d 818, 836.) In addition to the evidence cited above, defendant was identified as the shooter by several witnesses. The backpack and gloves were found in the vicinity of his arrest. And, he had gunshot residue on his hands.
The trial court did not err in admitting the gun into evidence.
II. The trial court did not err pursuant to section 654 in imposing sentences for attempted murder in count 1 and attempted carjacking in count 2
Defendant urges that section 654 requires that the sentence for carjacking in count 2 must be stayed because the attempted murder in count 1, was incidental to the carjacking. We disagree and find that substantial evidence supports the trial court’s implied findings that defendant harbored separate intents and objectives in committing the carjacking and committing the attempted murder.
Section 654 provides that: “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.”
“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.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) The protection of section 654 has been extended to cases where a single act or omission has occurred, or where there are several offenses committed during a course of conduct deemed to be indivisible in time. (People v. Le (2006) 136 Cal.App.4th 925, 931-932.) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) The trial court’s factual findings regarding the defendant’s intent and objective will be upheld if supported by substantial evidence, and we review the trial court’s determination as to intent in a light most favorable to the judgment. (People v. Andra (2007) 156 Cal.App.4th 638, 640-641.)
Section 215, subdivision (a), provides: “‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” Murder is the unlawful killing of a human being, with malice aforethought. (§ 187.) An attempt is a direct but ineffectual act in furtherance of the intended crime. (§ 664; People v. Miller (1935) 2 Cal.2d 527, 530.)
Some courts have narrowly interpreted the length of time that the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) Other courts have found separate, although sometimes simultaneous, objectives under the facts. (Id. at p. 1212.) People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191 (Nguyen) is instructive. Although Nguyen is a robbery case, “[b]ecause carjacking is very closely related to robbery, the cases dealing with robberies are significant in directing our interpretation of section 215.” (People v. Hamilton (1995) 40 Cal.App.4th 1137, 1142.) In Nguyen, an unresisting robbery victim was led from the storefront to a bathroom where money was taken from him. The assailant then forced the victim to lie face down and shot him in the back. Despite the defendant’s suggestion that section 654 barred multiple sentences because one could infer that the clerk was shot in order to eliminate him as a witness or to facilitate the defendant’s escape, the court held that the trial court did not err in imposing consecutive sentences for the attempted murder and robbery because “at some point the means to achieve an objective may become so extreme they can no longer be termed ‘incidental’ and must be considered to express a different and a more sinister goal than mere successful commission of the original crime.” (Nguyen, supra, at p. 191.) The court further stated: “We should not lose sight of the purpose underlying section 654, which is ‘to insure that a defendant’s punishment will be commensurate with his culpability.’ [Citation.]” (Ibid.)
Similarly, in People v. Coleman (1989) 48 Cal.3d 112, 162, our Supreme Court held that the defendant’s intent and objective in assaulting a victim by stabbing her was separate from his intent and objective in committing a robbery. There, the defendant had essentially completed the robbery with the assistance of the first victim and was preparing for flight when a second victim entered the room. After the defendant killed the second victim, he ordered the first victim to lie down and stabbed her in the back. The court held that the defendant stabbed the first victim with the intent and objective of preventing the victim from sounding an alarm about the murder of the second victim and that this intent and objective was separate from, but not incidental to, the robbery. (Ibid.)
Here, defendant was charged with one count of attempted murder and four counts of attempted carjacking. The evidence supports the trial court’s finding that defendant harbored a separate intent and objective of attempting to murder Godinez, even though the attempted murder occurred shortly after the attempted carjacking. Godinez tried to thwart defendant’s carjacking attempt by hitting him with a stick and trying to pull him out of the car. During the altercation, defendant pointed a gun at his face. After Godinez failed to get defendant to leave the car, Godinez slammed the car door shut. At that point the attempted carjacking was complete. Godinez then went to the passenger side to remove his children. Defendant exited the car, chased after him, and then shot Godinez while he was climbing back into the passenger side. The evidence suggests that defendant formed an intent to kill, an extreme objective separate from, and not merely incidental to, his intent and objective to commit an attempted carjacking. Accordingly, we conclude that the trial court did not err in refusing to stay the sentence for attempted carjacking in count 2 pursuant to section 654.
The People’s further argument that the limitations of section 654 do not apply to crimes of violence against multiple victims is well taken. (People v. Oates (2004) 32 Cal.4th 1048, 1063 [section 654 does not preclude imposition of multiple enhancements for a single firearm use involving multiple victims].) The People urge the sentence on counts 3 and 4 involving the attempted carjacking of the victim’s two children should be separately imposed from the attempted murder. We agree. All three were victims of the carjacking for which defendant could be sentenced separately. (People v. Hamilton, supra, 40 Cal.App.4th at p. 1144 [where defendant convicted of carjacking of driver and his wife, sentences were ordered to run concurrently].)
Here, the trial court stayed the sentences on counts 3 and 4, stating: “While I probably have the authority to sentence the defendant on counts 3 and 4, I’m not going to do so. I’m going to find under 654 that [the counts are] subsumed in count 2, the attempted carjacking of Mr. Godinez.” But, as stated, section 654, which limits the number of terms which may be executed, does not apply to crimes of violence against multiple victims. Accordingly, the trial court erred in applying section 654 to counts 3 and 4. Furthermore, because the trial court never iterated a sentence as to counts 3 and 4, the matter must be remanded to the trial court for resentencing on counts 3 and 4.
We conclude that the trial court did not err in refusing to stay the sentence pursuant to section 654 on count 2, the attempted carjacking of Godinez but the matter must be remanded to the trial court for resentencing on counts 3 and 4.
III. The trial court cited adequate reasons for imposing the upper term for the attempted murder in count 1
Defendant next urges that the trial court improperly made dual use of facts that constituted the elements of the charged crime as well as factors supporting the imposition of the upper term in count 1. Specifically, defendant complains that the trial court improperly relied on the use of the gun in imposing the upper term on the base count and for imposing the gun use enhancement, and improperly used the “‘intent to kill’” element of murder as a circumstance in aggravation. We disagree and conclude that the trial court did not improperly engage in dual use of facts, or that if it did, it is not reasonably probable that a more favorable sentence would have been imposed in the absence of the purported error.
“Although a single factor may be relevant to more than one sentencing choice, such dual or overlapping use is prohibited to some extent. For example, the court generally cannot use a single fact both to aggravate the base term and to impose an enhancement, nor may it use a fact constituting an element of the offense either to aggravate or to enhance a sentence. (§ 1170, subd. (b); [Cal. Rules of Court, rule 4.420(c) & (d)].)” (People v. Scott (1994) 9 Cal.4th 331, 350-351.)
Defendant’s probation report listed eight circumstances in aggravation, including that the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)). In imposing the upper term for the attempted murder in count 1, the trial court stated: “I’m going to sentence you to the high term in this matter because of the actions surrounding the assault on Mr. Godinez. Not only did you chase him around the back of the car before shooting him, you could have escaped without firing the weapon. So it’s going to be 9 years on count 1. Because you used a gun in this case, causing great bodily injury to the victim, 12022.53(d), requires the court to add to this an enhancement of 25 years to life. I will do that.”
While defendant characterizes the trial court’s statement that defendant chased Godinez when he could have escaped without firing the weapon as “intent to kill,” which is an element of attempted murder that cannot be used as a factor in aggravation, the statement instead reflected the first circumstance in aggravation listed by the probation report, that the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness. That is, as Godinez attempted to rescue his young children, defendant callously shot him in front of them. As a result of this viciousness, Godinez suffered great bodily harm, and as of the time of trial had not been able to return to work.
In any event, “‘Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.”’ [Citation.] Only a single aggravating factor is required to impose the upper term [citation], and the same is true of the choice to impose a consecutive sentence. [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 728-729.)
Therefore, even if the trial court erred in improperly using the same facts for the imposition of the upper term and for imposition of an enhancement, defendant’s probation report also reflected the aggravating circumstances that the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)); the crime involved multiple victims; defendant’s prior convictions as an adult or adjudications of commission of crimes as a juvenile are numerous or of increasing seriousness (rule 4.421(b)(2)); defendant has served prior prison terms (rule 4.421(b)(3)); defendant was on probation or parole when he committed the crime (rule 4.421(b)(4)); and defendant’s prior performance on probation or parole was unsatisfactory (rule 4.421(b)(5)). The record shows that defendant had two sustained petitions as a juvenile and two felony convictions as an adult, including a conviction for attempted robbery. Also, defendant was on parole at the time of the current offenses.
Thus, the trial court could have chosen facts from the record to establish the factors in aggravation needed to justify the imposition of the upper term. We conclude it is not reasonably probable that a more favorable sentence would have been imposed in the absence of the purported error.
Inasmuch as we have reached the merits of defendant’s argument we need not address forfeiture or ineffective assistance of counsel.
IV. The trial court properly instructed the jury pursuant to CALJIC No. 2.11 to the effect that neither party is required to call all potential witnesses
Defendant contends that the trial court erred in instructing the jury that neither party is required to call all potential witnesses because it implied that the defendant should produce “some” evidence, therefore changing the People’s burden to prove the case against the defendant beyond a reasonable doubt. Defendant concedes that his argument has been addressed and rejected in People v. Simms (1970) 10 Cal.App.3d 299, 313 (Simms), but he raises it to preserve the issue for subsequent review. We disagree with defendant’s position.
CALJIC No. 2.11, was given as follows: “Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events. Neither side is required to produce all objects or documents mentioned or suggested by the evidence.”
The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson).) On appeal, we determine whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the defendant’s constitutional rights. (Anderson, supra, at p. 938.)
Here, the trial court instructed the jury with CALJIC Nos. 2.90 and 2.91, that the People had the burden to prove defendant’s guilt beyond a reasonable doubt. It was also instructed with CALJIC Nos. 2.60 and 2.61 that the defendant had the right not be compelled to testify, and that the jury was to rely on the state of the evidence presented by the People.
We are compelled by the reasoning of Simms and Anderson to conclude that CALJIC No. 2.11 was properly given. Simms held that CALJIC No. 2.11 is a correct statement of the law. (Simms, supra, 10 Cal.App.3d at p. 313.) The Anderson court relied on Simms in holding that when CALCRIM No. 300, an instruction similar to CALJIC No. 2.11, is read in conjunction with instructions addressing the burden of proof and a defendant’s right not to be compelled to testify, there is no likelihood the jury could have misapplied the CALCRIM No. 300 instruction. (Anderson, supra, 152 Cal.App.4th at p. 938.) We presume the jury followed the court’s instructions (ibid.), and in light of the burden of proof instructions given by the trial court, it is not reasonably likely that the jury interpreted the instruction to mean that defendant had the burden of producing some evidence disproving some elements of the charged crimes.
CALCRIM No. 300 provides: “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.”
V. The trial court properly instructed the jury with CALJIC No. 2.13 regarding prior inconsistent statements of witnesses
Defendant urges that CALJIC No. 2.13 created an improper presumption that a witness’s unsworn out-of-court statements are both true and deserving of greater belief than statements made in court under penalty of perjury. We disagree.
As given by the trial court, CALJIC No. 2.13 provides: “‘Evidence that at some other time a witness made a statement which is inconsistent with his or her testimony here at trial, may be considered by you not only for the purpose of testing the credibility of a witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion. If you happen to disbelieve a witness’s testimony that he or she does not remember a certain event, that testimony would be inconsistent with a prior statement or statements by him or her describing the event.”
Defendant complains that the statements given by Vargas and Rodriguez to the officers at the field showups were inconsistent with their testimony at the preliminary hearing and at trial. He urges that CALJIC No. 2.13 instructed the jury that their pretrial statements should be presumed to be true. Our Supreme Court has rejected defendant’s argument, concluding that CALJIC No. 2.13 does not direct the jury to accept prior statements as the truth and that the instruction merely covers the hearsay exceptions provided in Evidence Code sections 1235 and 1236 in a neutral fashion. (People v. Harris (2008) 43 Cal.4th 1269, 1293.) Moreover, here, the trial court also gave CALJIC No. 2.20, instructing that the jurors were the sole judges of the believability of a witness and CALJIC No. 2.27, that the jurors must give the testimony of each witness the weight it deserves.
Accordingly, we conclude that it is not reasonably likely that the jurors misapplied the instruction and the trial court did not err in instructing with CALJIC No. 2.13.
DISPOSITION
The matter is remanded to the trial court for resentencing on count 3, attempted carjacking of Lynette Godinez, and count 4, attempted carjacking of Antonio Godinez, Jr.
In all other respects, the judgment is affirmed.
We concur: BOREN P. J.ASHMANN-GERST, J.