Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FMB008598, William Jefferson Powell IV, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKinster J.
Defendant and appellant Danny Wayne Covington was charged by a first amended information with one count of felonious assault with a firearm. (Pen. Code, § 245, subd. (a)(2).) The amended information also alleged that defendant personally used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a)). A jury found defendant guilty, as charged. Defendant filed a motion for a new trial, which the trial court denied. Defendant was sentenced to an aggregate prison term of 11 years in state prison. Defendant appeals.
All further statutory references are to the Penal Code unless otherwise indicated.
I
FACTUAL AND PROCEDURAL HISTORY
Bonney Koher, defendant’s stepdaughter, testified that defendant moved in with her family in early 2000, after Koher’s mother had died and because defendant was distraught. In August 2000, James Brian Clement became Koher’s boyfriend and eventually moved in with the family; defendant was displeased.
In June 2004, the entire family moved to a rented property in Morongo Valley. The property had a main house, a barn-like carport (barn), two sheds, and a bonus room. There was also a trailer, where defendant lived. Defendant’s behavior became surly as the family regularly ate and watched television together in the main house. Defendant’s drinking increased; he drank large cans of malt liquor on a daily basis. Defendant’s moods ranged from angry to apologetic.
On the 7th or 8th of November, 2006, Clement, Koher, and defendant were home. Koher was in the bathroom. Defendant came to the house and wanted to hand Koher a note. Koher told defendant to leave the house. Defendant was incoherent, which angered Koher. Defendant took the note and threw it at her. Clement then physically escorted defendant to the front door and pushed him outside. Before exiting, defendant punched Clement in the face. Once outside, Clement dragged defendant along the ground until defendant kicked Clement in the groin. Clement then struck defendant on the lip, left him on the ground, returned to the house, and locked the door behind him. Koher assumed defendant called the police because they arrived on the property soon after and took a report.
The next night, defendant entered the house and stood in the doorway, glaring at Clement. Defendant demanded and received a cell phone that he had loaned the family. Defendant also demanded the charger to the cell phone; Koher could not locate it. Defendant continued to demand the return of the charger; he was wobbly. Clement told defendant to leave. Defendant continued to stare at Clement. Clement and defendant began to argue. Clement grabbed defendant by the shoulders and pushed him out the door. Koher called the police. The police took a report, but could not get defendant to come out of his trailer to be interviewed. The police left.
Clement’s father owned a nearby residence, which was for sale. That night, Koher, Clement, and the children decided to spend the night at that residence. The next day, November 10, everyone returned home in the afternoon to eat, feed the dogs, and get clothing. Defendant was sitting outside the trailer in his car. After arriving, Clement went to the bonus room. It was connected to the main house by an intercom. As Koher began to prepare dinner, she saw defendant enter his trailer, exit the trailer, go to his car, and retrieve a shotgun. Defendant then walked toward the middle of the driveway.
Koher used the intercom to alert Clement that defendant had a gun; she received no response. Koher watched as defendant lifted the shotgun in the air. She also saw Clement outside, bending over watering plants. Koher yelled to Clement that defendant had a gun. Clement told Koher to go back inside, lock the doors, and call the police. Koher complied. Just after getting off the telephone with the police, Koher heard a gunshot. Koher looked outside and saw defendant in the doorway of the trailer, holding the gun. Defendant entered the trailer, exited the trailer, and fired the gun a second time in the direction of the bonus room. Then defendant again entered the trailer, exited the trailer, walked around the trailer, and fired the gun a third time toward the bonus room. Defendant entered his car and drove off.
On the intercom, Koher heard her daughter yell that Clement had been shot. Koher went to the bonus room and pulled Clement back to the house. Blood was coming from his eye and right side of his body. Paramedics arrived.
Clement testified that on the day of the shooting, he and his family arrived back home around 4:00 p.m. Defendant’s car was outside. Clement entered the house and then went outside to water his plants. He saw defendant sitting in his car.
Soon, Koher came out of the house and said to Clement, “Pappa [defendant] has a gun.” Clement told Koher to go back into the house, lock the doors, and call the police. Clement shut off the water and headed into the bonus room. Clement got on the intercom to Koher’s daughter, asking her to tell him if she could see defendant. Koher was on the phone with 911. Koher was relaying what she saw to the police, and Koher’s daughter was relaying the same information to Clement. Koher’s daughter told Clement that defendant was outside the trailer. Clement went outside, by the shed, to get a view of defendant. Clement saw defendant holding a gun. Clement then went to the porch of the bonus room and retrieved his pellet gun. Clement pumped the gun, entered the bonus room, and used the intercom to alert everyone he was going to fire into the adjacent field. He fired the gun, which “didn’t work very well,” and then put the gun down. Clement then returned to the bonus room.
Clement heard over the intercom that defendant was heading for the house. Clement also headed for the house, where he saw defendant holding the gun. Clement yelled at defendant calling him an idiot. Defendant turned toward Clement, who told defendant, “[Y]ou’re so drunk that you probably couldn’t even hit me if you did shoot at me.” Defendant yelled back, “I don’t see how I could miss.” Clement and defendant both laughed. Defendant lowered the gun and Clement ran back to the bonus room.
Clement heard one gunshot. He also heard over the intercom that defendant was at his car. From behind the barn, Clement could see defendant by his car. Clement threw some rocks over the barn in defendant’s direction to keep defendant off balance. Defendant fired a shot hitting the barn. Clement continued to throw rocks. When Clement stepped away from the barn, throwing a rock directly at defendant, defendant fired the gun. Clement was hit in the left eye, body, and arm. Clement stumbled to the bonus room, and called over the intercom that he had been shot. Defendant then drove away.
San Bernardino County Sheriff’s deputies responded to the broadcast of a disturbance. Deputy Cathy Wagner arrived soon after Sergeant Richard Collins. From the top of the driveway, they heard a shot and a broadcast regarding the need for assistance. They decided to approach the residence on foot. As a vehicle approached them, the deputies pointed their guns toward the vehicle in order to get it to stop. Defendant stopped and exited the vehicle. The deputies observed a weapon in the front seat of the vehicle. As defendant was ordered to the ground, he stuck his hand in his pocket. Sergeant Collins hit defendant in the head with the butt of his rifle and kicked defendant, causing him to fall to the ground. Defendant was handcuffed and detained. The deputies found two shotgun shells in defendant’s right hand. The gun contained one expended shell.
According to an investigator with the San Bernardino County Public Defender’s Office, Clement refused to be interviewed. While at the property, the investigator observed two rifles on Clement’s porch. The investigator believed one of the rifles was a.22-caliber rifle. In addition, the investigator observed two pistols. The investigator took photographs of the firearms. Sergeant Collins testified that he had looked at the photographs and opined that what the investigator thought was a.22-caliber rifle was in fact a pellet gun.
II
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his 13-page supplemental brief, defendant appears to claim that he received ineffective assistance of counsel (IAC), the evidence was insufficient to support the conviction, and his sentence violates the double jeopardy clause. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
First, we address defendant’s IAC argument. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance fell below a standard of reasonable competence, and that there is a reasonable probability the result would have been more favorable to the defense in the absence of counsel’s deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Dennis (1998) 17 Cal.4th 468, 540-541.) When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426.)
In this case, defendant contends that his counsel failed to defend him at trial because his trial counsel failed to conduct an investigation into defendant’s innocence, did not present evidence, failed to object to evidence, allowed the prosecution to present prejudicial evidence, held secret meetings with the judge and the prosecutor during “in-chambers conferences,” and failed to present evidence that defendant acted in self-defense. A review of the record, however, indicates that defendant’s trial counsel was engaged in representing defendant during the trial. Defense counsel cross-examined all the key witnesses presented by the prosecution, and presented evidence on defendant’s behalf. Defense counsel also made appropriate objections to evidence and actively participated during trial. In sum, defendant cannot show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms. Similarly, he cannot demonstrate that counsel’s alleged deficient representation prejudiced him, i.e., there is a reasonable probability that, but for counsel’s purported failings, defendant would have received a more favorable result. (Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Dennis, supra,17 Cal.4th at pp. 540-541.)
Next, we address defendant’s claim that the evidence was insufficient to support the verdict. “We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22.)
“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) “‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.)
Here, defendant was convicted of assault with a firearm under section 245, subdivision (a)(2). The jury was instructed on the elements of the offense as follows:
“The defendant is charged in Count One with Assault with a Firearm in violation of Penal Code section 245(a)(2). [¶] To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person;
“2. The defendant did that act willfully;
“3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;
“4. When the defendant acted, he had the present ability to apply force with a firearm to a person; [¶] AND
“5. The defendant did not act in self-defense.
“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
“The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.”
The evidence presented at defendant’s trial, as summarized above, supports the jury’s guilty verdict (assault with a firearm).
We next address defendant’s claim that his sentence violates the double jeopardy clause. Here, defendant was sentenced to four years for count 1 (assault with a firearm under § 245, subd. (a)(2)). The court then imposed a four-year sentence for the allegation that defendant personally used a firearm under section 12022.5, subdivision (a), and a three-year sentence for the allegation that defendant inflicted great bodily injury under section 12022.7, subdivision (a). Defendant argues that the trial court erred in sentencing defendant under sections 12022.5, subdivision (a), and 12022.7, subdivision (a), because both the enhancements were elements of the crime under section 245, subdivision (a)(2).
First, section 12022.5, subdivision (a), states that the additional term of imprisonment shall apply “unless use of a firearm is an element of [the] offense” of which he or she was convicted. However, subdivision (d) of section 12022.5 states: “Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used....” In this case, defendant was convicted of the offense of assault with a firearm under section 245, subdivision (a)(2). Hence, under section 12022.5, subdivision (d), the sentence enhancement under section 12022.5 shall be imposed. Therefore, defendant’s argument is without merit.
Next, section 12022.7, subdivision (a), states that “[a]ny person who personally inflicts great bodily injury on any person... in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.” Section 12022.7, subdivision (g), states that “[s]ubdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense.” Here, as discussed above, defendant was convicted of assault with a firearm under section 245, subdivision (a)(2). Subdivision (a)(2) of section 245 states that “[a]ny person who commits an assault upon the person of another with a firearm shall be punished....” Infliction of great bodily injury is not an element of assault with a firearm. Therefore, defendant’s argument is without merit.
III
DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., Richli J.