Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. LA053847 Michael Latin, Judge. Reversed in part; affirmed in part with modifications.
Lynette Gladd Moore, 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, Senior Assistant Attorney General, Scott A. Taryle and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Carlos Jimenez Dominguez, appeals from his convictions for: attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a)); assault with a firearm (§ 245, subd. (a)(2)); criminal threats (§ 422); and assault with a semi-automatic firearm. (§ 245, subd. (b).) The jurors also found that defendant: personally discharged a firearm in the commission of the attempted voluntary manslaughter (§ 12022.53, subd. (b), (c)); personally used a firearm in the assault with a firearm (§ 12022.53, subd. (b)); and, personally used a firearm in the commission of the assault with a semi-automatic firearm. (§ 12022.53, subd. (a).) We reverse in part and affirm in part with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Defendant married Rosa Gonzalez on October 28, 2003. However, they separated approximately three weeks prior to November 15, 2005. Ms. Gonzalez and Daniel Serrano were standing in a Ralph’s supermarket parking lot at approximately 11 p.m. on November 15, 2005. After they spoke for a few minutes outside Mr. Serrano’s car, defendant’s van was driven directly to their rear. Defendant was in the passenger seat of the van. Defendant got out of the van with a silver gun in his right hand. Defendant used his left hand to pull back and release the slide mechanism of the handgun. Defendant pointed the handgun at Mr. Serrano’s chest from approximately four feet away. Ms. Gonzalez said, “‘Carlos, calm down.’” Mr. Serrano moved Ms. Gonzalez to the side. Defendant said, “‘I’m going to kill him.’” Mr. Serrano reached out with his left hand to push the gun away from him. As Mr. Serrano touched defendant’s wrist, the gun fired. The bullet struck Mr. Serrano in the right thigh. Defendant continued to point the gun at Mr. Serrano. Defendant was trying to push Mr. Serrano. Defendant and Mr. Serrano fell to the pavement. Mr. Serrano landed on top of defendant. Mr. Serrano held defendant’s hand containing the gun. Defendant continued to aggressively move his hand. Mr. Serrano was able to pin defendant down to the ground. Thereupon, Hector Perez Hernandez began speaking to defendant. Mr. Hernandez lived in the same house where defendant and Ms. Gonzalez resided, which was across the street from the Ralph’s store. Mr. Hernandez was in the Ralph’s parking lot helping a friend install a car stereo at the time of the incident. Mr. Hernandez convinced defendant to hand over the handgun. Defendant told Mr. Hernandez not to give the gun to Mr. Serrano. The individual that came to the parking lot in defendant’s van took possession of the gun. The individual told defendant “‘Let’s go. Let’s go.’” Defendant got into the van with the other man and drove away.
Mr. Serrano and Ms. Gonzalez got into Mr. Serrano’s car and drove to another Ralph’s store. Mr. Serrano bought alcohol and a bandage to treat his leg wound. Mr. Serrano’s leg was bleeding. Mr. Serrano also bruised his shoulder and cut his finger during the struggle.
Defendant made threats against Ms. Gonzalez when he called her on her cellular phone shortly thereafter. Defendant told Ms. Gonzalez that she was a “bitch” and a “whore” and that he was going to kill her. Defendant later sent Ms. Gonzalez text messages stating: “‘I’m going to kill you, I have all the information about your guy[]” and “‘As much of a whore as your mother, but you are not going to make fun of me. I swear to you, first death that’s seeing you with another. What coffee would you like for your dad and for [Ms. Gonzalez’s five year-old son] . . . Because this is just starting. I assure you.’” The reference to coffee related to a Mexican custom to serve coffee to those present at a funeral. Ms. Gonzalez took defendant’s threats seriously because he had caused her physical harm on four prior occasions. Ms. Gonzalez and Mr. Serrano reported the incident to the police at 6 or 7 a.m. the following day.
Los Angeles Police Officer Marcos Dutra and Officer Bryer arrived at the Ralphs’ parking lot after the shooting. Officer Bryer recovered a spent 9-millimeter casing in the parking lot. Officer Dutra was familiar with semiautomatic handguns. A semiautomatic handgun needs to be engaged by pulling the slide back to chamber a round. A semiautomatic handgun would eject a casing after it is fired. An individual would necessarily have to have his or her finger on the trigger to fire a semiautomatic weapon.
Defendant was arrested on November 17, 2005, by Detective Jason LeDuff. Detective LeDuff took a cellular telephone from defendant’s front pocket. Detective LeDuff found a contact by the name of “Rosie” stored in the phone. The telephone number for “Rosie” corresponded with that of Ms. Gonzalez. Defendant’s telephone number matched that of the text messages sent to Ms. Gonzalez.
First, defendant argues that he was improperly convicted of both the assault with a semiautomatic firearm and assault with a firearm in violation of section 954. The Attorney General agrees. We agree. In People v. Reed (2006) 38 Cal.4th 1224, 1227, the California Supreme Court held: “A judicially created exception to the general rule permitting multiple convictions ‘prohibits multiple convictions based on necessarily included offenses.’ (People v. Montoya [(2004)] 33 Cal.4th [1031,] 1034.) ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ (People v. Lopez (1998) 19 Cal.4th 282, 288.)” The Supreme Court further held: “In deciding whether multiple conviction is proper, a court should consider only the statutory elements. Or, as formulated in [People v.] Scheidt [(1991) 231 Cal.App.3d 162, 165-166], ‘only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. . . .’ [Citation.]” (People v. Reed, supra, 38 Cal.4th at p. 1229.)
In this case, all of the statutory elements of section 245, subdivision (a)(2), assault with a firearm, are included in section 245, subdivision (b), assault with a semiautomatic firearm. The evidence supports defendant’s conviction for assault with a semiautomatic weapon. We therefore reverse the judgment as to the lesser included offense of assault with a firearm and the related section 12022.53, subdivision (b) enhancement. (People v. Medina (2007) 41 Cal.4th 685, 700; People v. Moran (1970) 1 Cal.3d 755, 763 [“If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed”].)
Section 245 provides in pertinent part: “(a) . . . . [¶] (2) Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years . . . . [¶] (b) Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.”
Second, defendant argues the trial court’s imposition of concurrent sentences for count 1, attempted murder, and count 5, assault with a semiautomatic firearm, violates the provisions of section 654, subdivision (a). The Attorney General concedes that the trial court should have imposed and stayed the sentence as to count 1 pursuant to section 654, subdivision (a). We review the trial court’s order imposing multiple sentences in the context of a section 654, subdivision (a) question for substantial evidence. (People v. Osband, supra, 13 Cal.4th at pp. 730-731; People v. Downey (2000) 82 Cal.App.4th 899, 917; People v. Oseguera (1993) 20 Cal.App.4th 290, 294; People v. Saffle (1992) 4 Cal.App.4th 434, 438.) The trial court has broad latitude in determining whether section 654, subdivision (a) applies in a given case. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)
The assault with a semiautomatic firearm was charged and sentenced as count 5. However, the verdict form reflects it as count 4.
Section 654, subdivision (a) provides: “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
There is no substantial evidence that defendant’s acts of assaulting Mr. Serrano with a semiautomatic firearm and the attempted murder were part of a divisible course of conduct. At the sentencing hearing, the trial court properly imposed the high term as to count 5 as well as the related section 12022.5, subdivision (a) 10 year enhancement. However, the trial court imposed a concurrent three-year term as to count 1, but staying “two thirds of the sentence” pursuant to section 654, subdivision (a). The trial court subsequently stated: “The court inadvertently stayed two-thirds of each of the concurrent terms. And that was inferred -- it was inadvertent, since they’re all going to be run concurrent to the principal term in count 5. So the words ‘two-thirds of which should be stayed pursuant to section 654’ should be stricken from the sentencing, or at least the minute order should not reflect that any portion was stayed.” The three year sentence imposed as to count 1 must be stayed in its entirety pursuant to section 654, subdivision (a).
Third, following our request for further briefing, the Attorney General argues that the trial court should have imposed a section 1465.8, subdivision (a) court security fee as to each count. (See People v. Alford (Dec. 3, 2007, S142808) ___ Cal.4th ___, ___; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) At sentencing, the trial court did not make reference to the imposition of the court security fees. Three section 1465.8, subdivision (a)(1) fees shall be imposed. The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
Fourth, following our request for further briefing, the Attorney General argues the trial court should have imposed and stayed a $200 section 1202.45 fine. The trial court imposed a $200 section 1202.4, subdivision (b)(1) restitution fine. However, the trial court neglected to impose the mandated section 1202.45 parole revocation fine. We therefore impose and stay the $200 section 1202.45 fine. (People v. Rodriguez (2000) 80 Cal.App.4th 372, 375-376; People v. Hong (1998) 64 Cal.App.4th 1071, 1084.)
The judgment is reversed as to count 2. The sentence imposed as to count 1 is stayed pursuant to Penal Code section 654, subdivision (a). The judgment is modified to impose the three Penal Code section 1465.8, subdivision (a) fines and the $200 Penal Code section 1202.45 restitution fine, which is stayed. A corrected abstract of judgment is to be forwarded to the Department of Corrections and Rehabilitation by the superior court clerk. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J., KRIEGLER, J.