Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, Ct. No. INF045092 John J. Ryan, Judge.
O'ROURKE, J.
The People filed a first amended information charging Robert Contreras, Jr. with attempted murder of police officer Matthew Jimenez (Pen. Code, §§ 664, subds. (a), (e), (f)/187, subd. (a), count 1); attempted murder of police officer Juan Carlos Garcia (§§ 664, subds. (a), (e), (f)/187, subd. (a), count 2); assault with a firearm upon Matthew Jimenez (§ 245, subd. (d)(1), count 3); assault with a firearm upon Juan Carlos Garcia (§ 245, subd. (d)(1), count 4); discharge a firearm at an inhabited dwelling (§ 246, count 5); assault upon Francisco Romero (§ 245, subd. (a)(2), count 6); assault upon Omar Garcia (§ 245, subd. (a)(2), count 7); discharge a firearm at an inhabited dwelling (§ 246, count 8); discharge a firearm at an inhabited dwelling (§ 246, count 9); and negligent discharge of a firearm (§ 246.3, count 10).
All further statutory references are to the Penal Code.
A jury convicted Contreras of counts 3, 8, 9 and 10. The jury also found true the allegation as to count 3 that Contreras personally and intentionally discharged the firearm within the meaning of sections 12022.53, subd. (c) and 1192.7, subd. (c)(8).
The trial court declared a mistrial as to count 1, because the jury was divided and failed to convict; granted Contreras's section 1118.1 motion as to counts 2 and 4; and dismissed counts 5, 6 and 8 in the interest of justice.
The trial court sentenced Contreras to 31 years and 4 months in prison as follows: on count 3, the principal term, an upper term of 8 years, plus 20 years for the enhancement; on counts 8 and 9, consecutive terms of 1 year, 8 months each; the sentence on count 10 was imposed and stayed pursuant to section 654.
Contreras contends his convictions for shooting at inhabited dwellings were not supported by sufficient evidence; and, the upper term sentence on count 3 violated his Sixth and Fourteenth Amendment rights. We reverse the sentence on count 3, and affirm in all other respects.
FACTUAL SUMMARY
On August 13, 2003, at approximately 11:00 p.m., Sergeant Matthew Jimenez of the Riverside County Sheriff's Department, responded to a call regarding a man carrying a gun in the Bagdouma Park area of Coachella. About 12 to 15 deputies, a helicopter with a heat-sensing flare system and a K-9 unit searched for the man. The police did not find him and after two hours called off the search; however, they learned he was carrying a high powered rifle.
Shortly after 11:00 p.m., JoAnn Mata, who lived across the street from the park, heard gunshots. She immediately felt a sharp pain in her leg. She noticed debris and white smoke just outside her bathroom. The next day, a police officer discovered a bullet hole in the bathroom shower and a metal fragment on the floor nearby.
At approximately 11:20 p.m., Katie Castaneda heard a gunshot outside her home. Her daughter looked around the house and noticed a bullet hole in the wall of the bedroom where her family was watching television. The hole had not been in the wall before Castaneda heard the gunshots.
At approximately 2:00 a.m. on August 14, 2003, Sergeant Jimenez and Deputy Juan Garcia returned to the park area to take a statement from Mr. Romero, an area resident. Jimenez testified that during their conversation, Romero indicated toward the park and said, "That's him, there he is." Jimenez turned around and saw Contreras crossing the park with a rifle. The only weapon Jimenez carried on his person was a nine-millimeter handgun; he felt outgunned and realized that his bullet-proof vest would not stop Contreras' bullets. Jimenez lowered himself to the ground behind a vehicle. Contreras headed towards Jimenez in "military style, crouching and sneaking." Contreras took a position on a jungle gym in the park and moved the barrel of his gun back and forth in a scanning motion, pointing it in Jimenez's direction.
Approximately 15 seconds later, Contreras walked towards the officers, pointing his rifle in their direction. When Contreras was approximately 50 yards away, Jimenez stood up and yelled to him, "Sheriff's Department, drop your gun." Contreras pointed his rifle directly at Jimenez, and both fired at each other simultaneously. Contreras ran behind a palm tree; he emerged from there and aimed his rifle directly at Jimenez, who shot him again. Contreras threw an object aside, yelled something, and came from the tree with his hands up. He was arrested.
On August 14, 2004, Ben Ramirez, an investigator with the Riverside County Sheriff's Department, interviewed Contreras, who recounted the following: The previous night Contreras had been drinking alcohol at his home; after arguing with his wife, he took his 7.62 x 39 SKS rifle outside and carried approximately 30 rounds. He fired some rounds as soon as he left the front door, to get his brothers-in-law to move out of his way. He then ran towards the park. Contreras stated, "Like all I know that I . . . was shooting in the air. And running up . . . the street just saying, 'Fuck you, bitch. Fuck you, fucking leave me alone.' " He stated he walked on the street around the park; he knew that people lived in the houses in the area, and it was possible some rounds hit the houses. He fell asleep near some date trees in the park. He woke up and was walking towards his house when he saw two police officers in uniform, talking to someone at a house. He went around a tree to hide from them. They ducked behind their cars.
Contreras explained in the following exchange with the investigator that his shooting at the police probably was motivated by his wish that the police kill him:
"Investigator: [W]hat were you thinking? Did you think you were going to jail? ...
"[Contreras]: I knew I was going to jail.
" Investigator: Uh-huh.
"[Contreras]: I knew I was going to jail.
"[Investigator]: Did you think you'd get away if you shot at [the police officers]?
"[Contreras]: No, I think I probably wanted to get killed by them.
"[Investigator]: You wanted to?
"[Contreras]: Probably, I mean everything's not bad, bad, bad like that, but I mean some times you get tired. I don't know about you, but I get tired."
Later in the interview, Contreras added, "Like I said it was going to be suicide pretty much and that's why I lifted up the rifle and started walking through."
DISCUSSION
I.
Contreras contends his two convictions under section 246 should be reversed because there was insufficient evidence to show he intended to shoot at the inhabited dwellings. As he puts it, "when a person shoots 'at' a building, he intends for the building to be hit by the bullet, and conversely, when he shoots without intention of hitting the building — shooting into the air, for example — he does not shoot 'at' the building. There was no evidence whatsoever in this case to prove [Contreras] shot 'at' a building in this sense."
Section 246 states, "Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building . . . is guilty of a felony." This is a general-intent crime, and therefore it is sufficient for a conviction if the defendant intentionally did that which the law declares to be a crime. (People v. Overman (2005) 126 Cal.App.4th 1344, 1356, and cases cited therein.) The statute does not require a specific intent to achieve a particular result. (Id. at p. 1357.)
The court in Overman addressed and dismissed the issue raised by Contreras: "[S]ection 246 is not limited to the act of shooting directly 'at' an inhabited target. Rather, the act of shooting 'at' a proscribed target is also committed when the defendant shoots in such close proximity to the target that he shows a conscious indifference to the probable consequence that one or more bullets will strike the target or person in or around it. The defendant's conscious indifference to the probability that a shooting will achieve a particular result is inferred from the nature and circumstances of his act." (Overman, supra, at p. 1356.)
Substantial evidence supported the finding that Contreras fired with conscious disregard for the probability of striking inhabited dwellings. Contreras told the investigating officer that he knew he walked down a street which had homes that were occupied. Nonetheless, Contreras fired shots with his high-powered rifle. He stated he knew that possibly some homes were hit.
II.
Relying on Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakeley v. Washington (2004) 542 U.S. 296 (Blakeley), Contreras contends the trial court erred in imposing the upper term on the count 3 conviction. The People contend the argument is waived because Contreras did not raise it at the sentencing hearing, and any Cunningham error was harmless under Chapman v. California (1967) 386 U.S. 18 (Chapman). Briefing in this case was completed before the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II)and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We conclude the sentence is constitutionally flawed and remand for resentencing.
The trial court expressly declined to impose the mid-term on count 3, because it found the aggravating factors were "so substantial and outweigh[ed] the mitigating" factors. The court stated at the sentencing hearing, "There is no question based on the evidence but that Mr. Contreras planned the shooting[;] the evidence strongly suggest[s], and I find that he was stalking the officers. The court added, "[Contreras] had them at a tremendous disadvantage. They could not see him, and he was seeing them. He could have walked away. He did not walk away." The court also took into consideration the weapon Contreras used, which it described this way: "It may not be in the Code as an assault weapon, but it is an assault type rifle. It is a military rifle. [Contreras] had the officers who were there at the time seriously out gunned. . . . I find that to be very, very aggravating."
Cunningham held, other than the fact of a prior conviction, " 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' " (Cunningham, supra, 549 U.S. __, __ [127 S.Ct. 856, 869].) The California Supreme Court concluded in Black II that a trial court may impose the upper term without offending Cunningham if the defendant "is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles." (Black II, supra,41 Cal.4th at p. 813.) After noting that "the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term" under California's determinate sentencing law, the Black II court concluded that "if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum' " for Sixth Amendment purposes. (Black II, at p. 813.) The Black II court concluded that "the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Black II,at p. 813.)
In Sandoval, supra, the court held, "The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman[, supra,] 386 U.S. 18." (Sandoval, supra, 41 Cal.4th at p. 838.) Accordingly, "if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error may properly be found harmless." (Sandoval, at p. 839.) The Sandoval court reversed the imposition of an upper term sentence because none of the factors cited by the trial court satisfied constitutional requirements under Blakely.
We initially address the contention that Contreras forfeited his claim because in the trial court he failed to object to the sentence on the basis his right to a jury trial was denied. Although Contreras's counsel did not raise a Blakely objection at sentencing, we conclude that Contreras is not precluded from asserting this argument on appeal. At the time of Contreras's sentencing, the California Supreme Court had analyzed relevant United States Supreme Court precedent and concluded that the imposition of an upper term sentence under California law was constitutional. (See People v. Black (2005) 35 Cal.4th 1238, 1244, 1254, 1261 (Black I).) In light of Black I, any objection Contreras might have raised at sentencing based on Blakely, Apprendi, or the United States Constitution would have been futile. We conclude, therefore, that Contreras's challenge to the upper term sentence is cognizable on appeal despite his failure to raise the issue in the trial court. (See Sandoval, supra, 41 Cal.4th at p. 837, fn. 4 [defendant did not forfeit Sixth Amendment challenge by failing to object at sentencing that occurred after Black I].)
Here, the trial court imposed the upper term sentence for count 3 on facts not found to be true by the jury. In view of the fact that Jimenez, an experienced police sergeant, managed to shoot Contreras, who subsequently was disarmed and arrested, we cannot say beyond a reasonable doubt that the jury would have found any of the trial court's aggravating factors to be true. We note that at the sentencing hearing, the trial court expressed the following concern: "But I think Contreras's plan was to kill or attempt to kill and be killed. That is suggest[ed] by the evidence. Would I find that beyond a reasonable doubt? Absolutely not." (Emphasis added.) We also note the jury failed to convict Contreras on count 1, the charge of attempted murder of Jimenez. For these reasons, we vacate the sentence and remand the case for a new sentencing hearing consistent with the principles discussed in Blakely and Cunningham.
DISPOSITION
The judgment is reversed as to the sentence on count 3 and the matter is remanded for resentencing in a manner consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.