Opinion
B201019
9-4-2008
THE PEOPLE, Plaintiff and Respondent, v. AURELIANO BANUELOS, Defendant and Appellant.
Sylvia Whatley Beckham, 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, Linda C. Johnson and Karen Bissonnette, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant Aureliano Banuelos appeals from the judgment after a jury convicted him of one count of assault with a firearm and found the enhancement allegations to be true. The trial court sentenced Banuelos to a determinate term of 23 years followed by a term of 25 years to life under the "Three Strikes" law. We affirm.
FACTS AND PROCEEDINGS BELOW
The prosecutions evidence showed the following. On an evening in October 2006, Banuelos and his friend Chino were in a market in Los Angeles buying beer. Chino met an old friend, Raul Castro, whom he had not seen in a long time. Chino and Castro talked briefly, shook hands, and Castro left the market. In the parking lot Castro met a young boy he knew and stopped to talk. Chino and Banuelos left the market shortly after Castro. When Chino saw Castro in the parking lot, he told Castro that something Castro had said inside the market offended him. Castro told Chino if he had offended him Chino could hit him "to get rid of his anger." Chino hit Castro harder than Castro expected so Castro hit Chino back. The two men exchanged punches in the market parking lot. As Castro was preparing to throw a punch at Chino, Banuelos called out "Chino," pulled a gun from his waistband and shot Castro. The bullet entered Castros left hand breaking some of the bones. Chino and Banuelos ran from the scene together.
Banuelos testified that he had already started walking home from the market when the shooting occurred. He did not shoot Castro, did not see the shooting, did not have a gun and was not in the parking lot when the shooting occurred..
The jury convicted Banuelos of one count of assault with a firearm. It also found true the allegations that the assault inflicted great bodily injury on Castro and that Banuelos personally used a firearm in the commission of the assault. In a bifurcated proceeding, the court found that Banuelos had suffered two previous convictions for making a criminal threat—a serious felony for purposes of the Three Strikes law. (Pen. Code, §§ 422; 1170.12, subd. (b)(1); 1192.7, subd. (c)(38).)
The court sentenced Banuelos to a term of 25 years to life under the Three Strikes law to be served after he serves consecutive terms of 3 years for the great bodily injury enhancement, 10 years for the firearm use and a total of 10 years (5 years each) for two prior serious felony convictions.
Banuelos filed a timely appeal.
DISCUSSION
I. THE CAUTIONARY INSTRUCTION ON CONSIDERING A DEFENDANTS OUT OF COURT STATEMENTS
CALCRIM No. 358 instructs the jury in relevant part: "You must consider with caution evidence of a defendants oral statement unless it was written or otherwise recorded." Banuelos contends the court should have given this instruction sua sponte because he allegedly made a statement—"Chino"—which was not written or otherwise recorded. Banuelos reasons that his alleged statement, "Chino," was an admission; admissions are subject to CALCRIM No. 358; the court has a sua sponte duty to give the instruction for evidence of an admission; therefore, the court had a sua sponte duty to give the instruction in this case.
Even if we assume Banueloss legal reasoning is correct, he has failed to show the courts error was prejudicial.
The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made and, if so, whether it was reported accurately. (People v. Beagle (1972) 6 Cal.3d 441, 456.) In this case, there was no dispute concerning the precise words used or whether they were reported accurately. The issue of whether Banuelos made the statement was subsumed in the issue of whether the prosecutions witnesses fabricated their testimony when they claimed Banuelos was present in the parking lot during the fight and fired the shot that struck Castro. We conclude, therefore, a more favorable result was not reasonably probable had the court given the cautionary instruction. (Cf. People v. Bunyard (1988) 45 Cal.3d 1189, 1124-1225 [failure to give the cautionary instruction was harmless error because the issue was whether defendant solicited the murder of his wife, not what he said in making the solicitation].)
II. THE GREAT BODILY INJURY ENHANCEMENT INSTRUCTION
The jury found that in the commission of an assault with a firearm Banuelos "personally inflicted great bodily injury upon Raul Castro." Banuelos argues this finding must be reversed because the court did not instruct the jury that the great bodily injury must be inflicted on someone "who was not an accomplice to the crime." (CALCRIM No. 3160; and see Pen. Code, § 12022.7, subd. (a).) We conclude the error was harmless beyond a reasonable doubt. (People v. Floyd (1998) 18 Cal.4th 470, 503.)
No reasonable juror could have concluded from the evidence that Banuelos and Castro were accomplices and that Banuelos had intended to shoot Chino but hit Castro instead. The evidence showed that Banuelos and Chino were friends, they left the market together and fled the scene together after the shooting. Furthermore, Castro testified that although he was acquainted with Banuelos, when he saw him at the market he did not even speak to him or make eye contact.
III. THE UPPER TERM SENTENCE ON THE FIREARM ENHANCEMENT
The jury found that Banuelos personally used a firearm in committing the assault. The trial court chose to impose the upper term of 10 years for that enhancement based on Banueloss "long history of criminal conduct."
Banuelos contends that the United States Supreme Courts decision in Cunningham v. California (2007) 549 U.S. 270, entitled him to a jury trial on whether he had a "long history of criminal conduct." Our Supreme Court rejected that argument in People v. Black (2007) 41 Cal.4th 799, 819-820. We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
IV. THE THREE STRIKES SENTENCE
Under the Three Strikes law, the court imposed a sentence of 25 years to life for the assault conviction because Banuelos had two prior convictions for making a criminal threat—a serious felony under Penal Code section 1192.7, subdivision (c)(38).) The court rejected Banueloss request to strike one or both of the strike convictions in the interest of justice. Banuelos maintains the court abused its discretion in not striking at least one of the prior convictions.
In People v. Williams (1998) 17 Cal.4th 148, 161, our Supreme Court set out the factors a court must consider when exercising its discretion whether to strike a strike. The court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part[.]" In the present case the evidence shows that Banuelos was not outside the spirit of the Three Strikes law.
(a) Nature and circumstances of the present felony
Assault with a firearm is punishable by as little as one year in jail or two, three or four years in prison. Thus, the Three Strikes sentence of 25 years to life is 25 times the minimum sentence for the crime. On the other hand, assault with a firearm is considered both a serious felony (Pen. Code, § 1192.7, subd. (c)(31)) and a violent felony (Pen. Code, § 667.5, subd. (c)(8)). Moreover, Castro was not attacking or threatening Banuelos, he brandished no weapon at either Banuelos or Chino, and Banuelos could have employed less violent means to stop the fight.
(b) Nature and circumstances of the prior serious felonies
The two prior convictions for making criminal threats occurred in 1995 and 1998 in the context of a domestic dispute with the same person. The convictions were 12 and 9 years old at the time of the assault in the present case. Even though criminal threats were not serious felonies at the time Banuelos made them, they became serious felonies in 2000 (Prop. 21, § 17, approved March 7, 2000) and are considered serious felonies for purposes of the Three Strikes law even if they were committed before the effective date of Proposition 21. (People v. James (2001) 91 Cal.App.4th 1147, 1150.) Furthermore, the evidence shows that Banuelos was on probation for his first criminal threat conviction when he committed the second.
(c) Background, character and prospects
In addition to the two felony threat convictions, Banueloss probation report shows that he was convicted in 1995 of misdemeanor driving under the influence and feloniously taking a vehicle without the owners consent. Before his arrest on the current charges Banuelos worked as a welder and day laborer. He has an established family consisting of a domestic partner and two children (ages unspecified). Banuelos is an undocumented alien with an immigration hold. He will be deported upon his release from custody.
Although Banuelos may not be a "hardened criminal," neither is there anything exceptional in the nature of his past or present criminal convictions, his background, character or prospects that would lead us to conclude imposing a 25 years to life sentence would be outside the spirit of the Three Strikes law.
DISPOSITION
The judgment is affirmed.
We concur:
MALLANO, P. J.
NEIDORF, J. --------------- Notes: Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.