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People v. Gallegos

California Court of Appeals, Fourth District, Second Division
Sep 3, 2009
No. E046317 (Cal. Ct. App. Sep. 3, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. INF059768, Richard A. Erwood, Judge.

Nancy L.Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

RICHLI, Acting P.J.

On September 7, 2007, defendant Gabriel Gonzalez Gallegos went on a shooting rampage in the areas of Palm Springs and Cathedral City. He first went to the home of his former girlfriend, who had since moved out, located in Cathedral City. Her friend, Mark Chumbley, was staying at the house. Defendant shot into the house, barely missing Chumbley. Defendant then drove to Palm Springs where another friend of his ex-girlfriend, Narciso Mercado, lived. Mercado observed defendant looking through the mail in his mailbox. Defendant then pointed a rifle out of his car and shot one bullet into Mercado’s car, shattering the back windshield.

Defendant returned to the house where Chumbley was staying. Chumbley was in the front yard and immediately asked defendant what he was doing there. Defendant pulled out his rifle and shot at Chumbley at least six to eight times. Miraculously, Chumbley was able to escape inside the house without getting hit by any bullets. Defendant was apprehended five hours later in Palm Springs. He had a rifle on his passenger seat, ammunition, and another loaded rifle in the trunk.

Defendant was convicted of attempted murder, shooting at an occupied dwelling, misdemeanor vandalism, unlawful carrying of a loaded firearm, and several personal use of a firearm allegations were found true.

Defendant now contends:

1. Penal Code section 654 precluded multiple punishment for his conviction of unlawfully carrying a loaded firearm in public and his sentence enhancement for personally discharging a firearm during the course of the attempted murder.

All further statutory references are to the Penal Code unless otherwise indicated.

2. The evidence was insufficient to support his conviction for discharge of a firearm into an occupied dwelling.

3. The trial court erred by advising the jury during deliberations that it could not consider the lesser offense of attempted voluntary manslaughter unless they unanimously found defendant not guilty of the greater offense of attempted murder.

We find that no reversible trial errors occurred and affirm the judgment in its entirety.

I

PROCEDURAL BACKGROUND

Defendant was found guilty by a jury of attempted murder (§§ 664, 187), discharging a firearm at an inhabited dwelling (§ 246), misdemeanor vandalism (§ 594, subd. (b)(1)), and carrying a loaded firearm by a person not authorized to carry a weapon (§ 12031, subd. (a)(2)(D)). In addition, the jury found that defendant had personally and intentionally discharged a firearm during the commission of the attempted murder (§ 12022.53, subd. (c)) and that he personally used a firearm during the commission of discharging a firearm at an occupied dwelling (§§ 667, 1192.7, subd. (c)(8)). The trial court sentenced defendant to the upper term of nine years for the attempted murder, plus 20 years for the personal use of a firearm enhancement, for a total of 29 years. In addition, the trial court imposed a consecutive one-year eight-month prison term for discharging a firearm at an occupied dwelling. The remaining sentence on the carrying a loaded firearm was ordered to run concurrent to the imposed sentence, and he received credit for time served on the misdemeanor vandalism charge. Defendant received a total sentence in state prison of 30 years 8 months.

A second charge of shooting at an inhabited dwelling was dismissed pursuant to defendant’s section 1118.1 motion, and the trial court reduced the vandalism from the charged felony to a misdemeanor prior to the case being sent to the jury.

The jury rejected the allegation that defendant committed the attempted murder with premeditation and deliberation.

II

FACTUAL BACKGROUND

A. Shooting at Inhabited Dwelling (§ 246 )

On September 7, 2007, Mark Chumbley was staying at a house located at 67470 Quijo Road (Quijo house) in Cathedral City. Chumbley’s wife, Mirta, had previously shared the house with her friend, Cynthia Whiteeagle, and Narciso Mercado. They had all moved out about one week prior but had asked Chumbley to stay at the house.

At approximately 12:30 p.m. that day, Chumbley was in his living room, located at the front of the house, when he heard several “popping sounds.” He immediately identified the sounds as gunshots. A bullet passed through a large front picture window and grazed his nose. Chumbley immediately dropped to the ground. He could not see who was shooting at his house.

Chumbley had shot a.22-caliber rifle when he was younger and thought the gunshots sounded like a.22, which had a very distinctive sound. After the gunshots stopped, he found evidence of a bullet hole in the back wall of the house. In addition, there was a hole in the front living room window and a broken blind. He also found a second bullet hole in a bedroom window, which likely was the first shot. Chumbley called the police.

Cathedral City Police Officer Brian Barkley arrived at the Quijo house at approximately 12:35 p.m. He immediately noted that the front window was broken and had a bullet hole in it. Officer Barkley surmised the bullet hole found inside the home was consistent with a gun being shot from the street.

Defendant’s son, David Gonzalez, stated that defendant had come to his house on that day around 11:00 a.m. Defendant appeared drunk, and David told defendant he did not want to see him drunk. David also testified that he had engaged in a sexual relationship with Whiteeagle about one year prior to the shooting. Whiteeagle was defendant’s former girlfriend. David revealed the relationship to defendant about one or two weeks prior to the shooting rampage. Defendant was angry about the relationship David had had with Whiteeagle. Defendant left David’s house about 11:15 a.m.

David told Officer Barkley prior to trial that he had been with Whiteeagle two months prior to the shooting.

B. Vandalism (§ 594, subd. (b)(1))

Midday on September 7, 2007, Narciso Mercado saw defendant sitting in a car in front of his house located at 2390 Hudson Street in Palm Springs. Defendant was going through the mail in Mercado’s mailbox. Mercado knew defendant because they had lived at the Quijo house together while defendant was seeing Whiteeagle. Mercado then observed defendant stick a rifle out of the driver’s side window and shoot into the back window of Mercado’s car. It shattered the back window.

Mercado called the police. Palm Springs Police Officer Marcus Litch arrived at Mercado’s home about 1:12 p.m., some 20 to 30 minutes after the shooting. Officer Litch observed the shattered back window and damage to the passenger side headrest caused by a bullet. Mercado identified defendant as the shooter to Officer Litch and described defendant’s car as a dark purple Honda.

C. Attempted Murder (§§ 664, 187 )

About one hour after Officer Barkley left the Quijo house, Chumbley was standing in the front yard when he observed defendant sitting in his car approximately 40 feet from the house. Chumbley knew defendant through Whiteeagle. Chumbley walked toward defendant’s car and asked, “‘What the hell are you doing?’” When Chumbley got within 20 feet of defendant’s car, defendant picked up a rifle from the passenger seat and pointed it out the driver’s side window at Chumbley. Chumbley believed it was a.22-caliber rifle.

Chumbley immediately turned around and ran back toward the Quijo house. He heard one gunshot as he reached the front door. He ran inside the house and hit the floor. He heard a “barrage of bullets” coming through the front door — at least six to eight gunshots. Defendant turned his car around and continued to shoot at the Quijo house through the passenger side window. When the shooting stopped, Chumbley got up from the ground and saw defendant drive away. Chumbley observed bullet holes in the walls, security door, garage, and house.

Chumbley again called the police. Officer Barkly arrived at the Quijo house for a second time about 20 to 30 minutes after the first visit. Officer Barkly found seven bullet holes inside and outside the house, including on the wooden front door frame, the security screen door, the garage door, two on the outside stucco, and two on a wall inside the front door. Barkly found no bullets or casings.

D. Defendant’s Apprehension and Carrying a Loaded Firearm12031, subd. (a)(2)(D))

At 6:20 p.m. that evening, about five hours after the shootings, Officer Litch observed defendant driving a purple Honda near a residence in Palm Springs where Officer Litch believed defendant lived. Officer Litch pulled him over. Officer Litch searched defendant’s car and found an unloaded.22-caliber rifle in the front passenger seat under some clothing. He also found three boxes of.22-caliber ammunition,.270-caliber ammunition, and two expended.22-caliber shell casings in the front passenger seat. In the trunk of defendant’s car, Officer Litch found a loaded 760 rifle with a scope and a magazine loaded with four.270-caliber rounds. Empty beer cans were also found, along with mail addressed to the Hudson Street address where Mercado lived. Officer Litch smelled alcohol in the car, and defendant appeared intoxicated.

The trial court found during a bifurcated proceeding that defendant had suffered a prior conviction, and as part of his probation for that conviction, he was not to possess or own a firearm of any kind.

Defendant presented no evidence on his behalf.

III

SECTION 654

Defendant contends that since the trial court imposed the personal arming enhancement on the attempted murder charge under section 12022.53, subdivision (c), it was required to stay the sentence imposed on the carrying a loaded firearm charge. He claims the imposition of concurrent sentences was barred by section 654.

Defendant concedes he did not object to his sentence under section 654. However, such issues are reviewable on appeal despite the lack of objection. (People v. Lopez (2004) 119 Cal.App.4th 132, 138.)

A. Additional Factual Background

At the time of sentencing, the trial court sentenced defendant to the midterm of two years on the carrying a loaded firearm charge. (§ 12031, subd. (a)(2)(D).) It ordered that the sentence run concurrent to the sentence on count 1, the attempted murder, which included the sentence on the firearm enhancement imposed pursuant to section 12022.53, subdivision (c). Although the trial court stated that it was imposing the sentence concurrently because “it’s included within the offenses listed in counts 1 [attempted murder] and 2 [shooting at an occupied dwelling],” defendant concedes he did not object on section 654 grounds.

B. Analysis

Section 654, subdivision (a), as relevant here, 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.”

“The test for determining whether section 654 prohibits multiple punishment has long been established: ‘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....’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’” (People v. Harrison (1989) 48 Cal.3d 321, 335.)

“Appellate courts disagree about the application of section 654 to enhancements. [Citations.]” (People v. Martinez (2005) 132 Cal.App.4th 531, 535.) “[T]he Supreme Court has not yet resolved it....” (People v. Flores (2005) 129 Cal.App.4th 174, 185-186; see also People v. Palacios (2007) 41 Cal.4th 720, 728 [“we need not address the People’s argument that section 654 generally does not apply to enhancements.”].) We have previously held that section 654 can apply to at least some enhancements. (People v. Moringlane (1982) 127 Cal.App.3d 811, 817-818 [Fourth Dist., Div. Two], disapproved on other grounds in People v. Jones (1991) 53 Cal.3d 1115, 1144-1145.) The People have not asked us to reconsider this position, and we need not in deciding the issue here.

When a defendant has been convicted of both unlawful possession of a firearm and an offense involving the use of the same firearm, the test for the application of section 654 is fairly clear: “‘[W]here the evidence shows a possession distinctly antecedent [to] and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper....’” (People v. Bradford (1976) 17 Cal.3d 8, 22; accord, People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408-1414 [Fourth Dist., Div. Two].)

Here, the evidence actually established that defendant possessed two rifles. One was a.22-caliber rifle that was located in his passenger seat, and the evidence supported it was the weapon used for at least shooting at Chumbley. When defendant was stopped by police, the.22-caliber rifle was unloaded. However, the 760 rifle with a scope found in the trunk was loaded. The prosecutor argued to the jury that the illegal possession of a firearm charge was based on the rifle in the trunk. Defendant, therefore, erroneously argues that his conviction for carrying a loaded firearm was based on the.22-caliber rifle found on the passenger seat that was used in the shootings.

Defendant’s possession of this second firearm, five hours after the shooting, was distinctly separate from the primary offense of shooting the other rifle at Chumbley. We cannot find that possession of this second loaded rifle in his trunk constituted an indivisible course of conduct with one single objective. Defendant was not allowed to possess a loaded firearm due to his probation conditions. Once defendant put the second rifle in his trunk and drove into Palm Springs, he violated section 12031. This had no relation to the fact that he shot a different rifle at Chumbley. The trial court therefore did not err by imposing the sentence for carrying a loaded firearm concurrently to the weapons use enhancement for the attempted murder.

Section 12031, subdivision (a)(1) provides: “A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.” Subdivision (a)(1)(D) includes as a prohibited person: “Where the person is not in lawful possession of the firearm, as defined in this section, or is within a class of person prohibited from possessing or acquiring a firearm pursuant to Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, as a felony.”

IV

INSUFFICIENT EVIDENCE OF SHOOTING AT AN OCCUPIED DWELLING

Defendant contends the evidence was insufficient to support his conviction for the first shooting at the Quijo house (where shots were fired into the home, but Chumbley did not see the shooter) because he was never identified as being the shooter, and it was pure speculation to assume that, since he committed the second shooting, he committed the first shooting.

A. Standard of Review

“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129, limited by People v. Rundle (2008) 43 Cal.4th 76, 151.) Rather, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime... beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)

“‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.]’” (People v. Abilez (2007) 41 Cal.4th 472, 504.) “In a case, such as the present one, based upon circumstantial evidence, we must decide whether the circumstances reasonably justify the findings of the trier of fact, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding would not warrant reversal of the judgment. [Citation.]” (People v. Proctor (1992) 4 Cal.4th 499, 528-529.) “‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (People v. Bean (1988) 46 Cal.3d. 919, 933.)

B. Analysis

Defendant was convicted of shooting at an occupied dwelling under section 246, which provides, in pertinent part, that: “Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar... or inhabited camper... is guilty of a felony....” Defendant does not dispute that the elements of the crime were met, but rather, that he was never identified as the shooter.

The evidence supported the jury’s determination that defendant committed the first shooting. Chumbley, who had experience with guns, testified that the first gunshots sounded like they came from a.22-caliber rifle. Defendant was found later that evening in possession of a.22-caliber rifle in the passenger seat of his car. This evidence went unchallenged by defendant. Further, defendant had lived at the Quijo house with his girlfriend, but they were since estranged. Defendant was seen around the same time shooting a rifle at Mercado’s car; another person who had been living at the Quijo house with defendant and his ex-girlfriend. The jury could reasonably infer that defendant had a motive to shoot at the Quijo house to either harm Whiteeagle or her friends.

Finally, in denying defendant’s motion for dismissal pursuant to section 1118.1, the trial court concluded: “It would be a very abnormal coincidence for someone to go by a house, shoot up a house, and then your client just to drive by with the same caliber weapon and engage in shooting up the house a second time.” We agree. “[T]he jury could reasonably have deduced from the evidence” that defendant’s shooting rampage began at the Quijo house and ended at the Quijo house. (People v. Zamudio, supra, 43 Cal.4th at p. 357.) Substantial evidence supported defendant’s conviction for shooting at an occupied dwelling.

V

ORDER OF DELIBERATIONS ON GREATER AND LESSER OFFENSES

Defendant contends the trial court erred by advising the jury during deliberations that they should not consider the lesser offense of attempted voluntary manslaughter unless they unanimously found him not guilty of the greater charge of attempted murder.

A. Additional Factual Background

During discussion of the jury instructions, the trial court felt it had a sua sponte duty to instruct the jury on the lesser included offense of attempted voluntary manslaughter. The People disagreed, believing there was no evidence of heat of passion or imperfect self-defense. The trial court noted that the People put forth evidence that defendant was upset, angry, and possibly drinking. Defendant also objected, arguing there was no evidence of heat of passion and requested that a lesser offense instruction on attempted murder not be given. The trial court felt there was some nexus between defendant’s anger and shooting at the victims, who had a connection with defendant’s ex-girlfriend. The People then agreed with the heat of passion instruction but not imperfect self-defense.

The trial court instructed the jury with Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 603, the lesser included offense of attempted voluntary manslaughter under a heat of passion theory. The jury was not instructed as to how they were to conduct deliberations. The jury was provided with a separate verdict form for the lesser offense of attempted voluntary manslaughter.

During deliberations, the jury asked: “Does the jury need to be unanimous with NOT GUILTY on the attempted murder charge in order to consider the VOLUNTARY MANSLAUGHTER charge?” The trial court consulted with both counsel. When the trial court indicated that it believed the proper answer to the question was yes, both counsel agreed. The trial court gave a simple written response of “Yes” to the jury.

B. Analysis

The jury must reach a unanimous verdict on the degree of murder. (People v. Avalos (1984) 37 Cal.3d 216, 228.) As such, a trial court should instruct a jury that it may not convict a defendant of a lesser included offense without first acquitting him or her on the greater charged offense. (People v. Fields (1996) 13 Cal.4th 289, 310.)

We choose to review defendant’s claim under section 1259 despite his acquiescence in the erroneous response to the jury in this case.

In People v. Kurtzman (1988) 46 Cal.3d 322, the California Supreme Court held that the trial court erred by advising a deadlocked jury that it must unanimously agree on the second degree murder charge before it could consider voluntary manslaughter. (Id. at p. 328.) It established that the only rule for deliberations is that the jury must acquit on the greater offense before finding the lesser offense. (Id. at pp. 330-331.) It concluded that otherwise the jury can consider the greater and lesser offenses in any order they choose. (Id. at p. 331.)

Here, the jury was given no instructions on the order of deliberations, and the trial court did not further instruct the jury after they questioned how they should proceed on their deliberations for the lesser offense of attempted voluntary manslaughter. Defendant claims the trial court should have instructed the jury with CALCRIM No. 3517, 3518, or 3519. However, the jury would have been more appropriately instructed with CALCRIM No. 640 or 641. Both provide, in pertinent part: “You may consider these different kinds of homicide in whatever order you wish.”

The prosecutor did advise the jurors during his closing argument that “you don’t get to that lesser included offense unless you find him not guilty of attempted murder.” When the jury asked whether they must find unanimously that defendant was not guilty of the greater offense before they could “consider” the lesser offense, the trial court responded, “Yes.” It is clear that the jury was aware that it could not convict defendant of the lesser offense of attempted voluntary manslaughter without first acquitting him on the attempted murder charge. (People v. Fields, supra, 13 Cal.4th at p. 310.) However, the jury was erroneously advised that it could not consider both the lesser and greater offenses at the same time in reaching such a conclusion.

Although we find the trial court committed error in its response to the jury, we find it harmless. In Kurtzman, the California Supreme Court found that the error in the trial court’s response was harmless, as it was not “reasonably probable” that the jurors would have found the defendant guilty of the lesser offense absent the error, i.e., the standard in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Kurtzman, supra, 46 Cal.3d at p. 336.)

Initially, the response by the trial court does not necessarily mean that the jury completely ignored the lesser offense or that they did not address defendant’s mental state. In fact, based on the question from the jury, it is not clear, as argued by defendant, that they did not consider the lesser offense. In fact, it appears from the question itself that they had been considering the lesser offense and were merely seeking clarification that they must unanimously find that defendant was not guilty of the greater offense before finding the lesser offense. Thereafter, they obviously concluded defendant was guilty of attempted murder. The jury was instructed otherwise that they must find defendant guilty of the charged offenses beyond a reasonable doubt. We have no reason to believe they did not so find.

Additionally, there was little or no evidence that defendant committed attempted voluntary manslaughter based on a heat of passion theory to support that if the jury considered the lesser offense with the greater offense it would have found him guilty of the lesser offense. In fact, it was not even argued to the jury by defendant, who based his defense on the lack of intent to kill.

Moreover, there was strong evidence defendant was guilty of attempted murder. Defendant was within 20 feet of Chumbley when he shot at him. Chumbley ran to the house. Defendant then shot six to eight times through the front door of the house, the place where Chumbley had run. The jury clearly deliberated on the attempted murder and found that all of the elements of the crime were supported by the evidence. We conclude that the erroneous response to the jury was clearly harmless.

VI

DISPOSITION

We affirm the judgment in its entirety.

We concur: GAUT, J., KING, J.


Summaries of

People v. Gallegos

California Court of Appeals, Fourth District, Second Division
Sep 3, 2009
No. E046317 (Cal. Ct. App. Sep. 3, 2009)
Case details for

People v. Gallegos

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GABRIEL GONZALEZ GALLEGOS…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Sep 3, 2009

Citations

No. E046317 (Cal. Ct. App. Sep. 3, 2009)