Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS182627, Yvonne E. Campos, Judge.
McINTYRE, Acting P. J.
A jury convicted Jose Luis Garcia of assault with a semiautomatic firearm, attempted kidnapping, shooting at an inhabited structure and burglary. He appeals, contending: (1) insufficient evidence supported his convictions for assault with a semiautomatic firearm, attempted kidnapping and burglary; (2) the trial court incorrectly instructed the jury on the intent element for attempted kidnapping; (3) the prosecutor committed prejudicial misconduct; and (4) his counsel provided ineffective assistance by failing to object to the misconduct. Additionally, the People note sentencing errors and errors in the abstract of judgment. We find no prejudicial error warranting reversal of the conviction; however, we agree that the trial court erred during sentencing and reverse the judgment as to the sentence and remand the matter for resentencing. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of January 10, 2004, Stella Garcia was in her Imperial Beach home with her mentally disabled adult son and 10-year old granddaughter. Her daughter, Michelle Nunez, did not live at the home, but sometimes slept there. Stella discovered a stranger in the house, later identified as Garcia, and asked him who he was and what he wanted. Garcia responded by asking Stella "where is she" and opening the door to the granddaughter's bedroom. Stella then noticed a second stranger and told the men to leave.
Unbeknownst to Stella, Michelle and her former boyfriend, Anthony Fowler, were in Stella's garage at the time. Michelle walked into the house after hearing some noises and saw two men with Stella. Garcia's companion yelled "there she is" and Garcia yelled "grab her."
The men moved Michelle from the living room into the kitchen and pulled her out a rear kitchen door on to a patio as she struggled. Garcia told Michelle that he was "taking her" and the men managed to get Michelle's body out the rear kitchen door as Stella pulled back on Michelle's arm. Stella then pulled Michelle back inside the house and slammed the door with her foot. As this happened, Fowler walked out of a side garage door onto the patio and Garcia yelled for his companion to "blast that fool." Michelle then saw Fowler go back into the garage, shut the door and heard gunshots. Stella also heard multiple gunshots as she was on the telephone with the police. Michelle waited a few seconds and then entered the garage to check on Fowler, who was kneeling down inside the garage by the garage door. Stella later observed bullet holes in her main garage door.
An information charged Garcia with first degree burglary and attempted kidnapping (each with an enhancement for being vicariously liable for the use of a firearm during the crimes), shooting at an inhabited building and assault with a semiautomatic handgun.
At a preliminary hearing, Michelle provided a story similar to Stella's. She also identified Garcia as the man that said "there she is" and "blast that fool." At trial, however, Michelle claimed that she had never seen Garcia before and could not remember testifying at the preliminary hearing. She admitted being inside the garage of Stella's home with Fowler using methamphetamine on the date of the incident, stated that she went inside the home after hearing noises and saw Stella with two men that she had never seen before. She heard the men say something about "paperwork" when they grabbed her. As they got to the kitchen door, she saw Fowler and heard one of the men say "blast that fool." Michelle admitted that she had been involved with gangs and testified that in gang culture she would be considered a rat or a snitch if she gave information to the police or testified in court, but denied giving the police any information and did not want to be considered a snitch.
Sheriff's Detective Michael A. Speyrer testified at trial that Michelle identified Garcia from a photographic lineup. He also stated that in gang culture a "rat" or a "snitch" is a person who talks to police, "paperwork" is documentation that a person has ratted or snitched on someone affiliated with the gang, and a gang member considered to be a snitch could be talked to, beaten or killed.
A jury found Garcia guilty of all counts and enhancements. In a bifurcated proceeding, the trial court found that Garcia had committed a prior serious felony that qualified as a strike and had served a prior prison term. It later sentenced him to an aggregate prison term of 18 years. Garcia appeals.
DISCUSSION
I. Sufficiency of the Evidence
A. Standard of Review
Where a defendant challenges the sufficiency of the evidence supporting a conviction, our task is to review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Jennings (1991) 53 Cal.3d 334, 364.) It is not our function to reweigh the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206) and reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34.) Before a conviction can be set aside for insufficiency of the evidence, it must clearly appear that there is insufficient evidence to support it under any hypothesis. (People v. Johnson (1980) 26 Cal.3d 557, 575-578.)
B. Assault with a Semiautomatic Firearm
An assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (Pen. Code, § 240, all undesignated statutory references are to this code.) The crime of assault with a deadly weapon requires proof of the basic crime of assault, plus proof that it was accomplished by the use of a deadly weapon or with force likely to cause great bodily injury. (§ 245, subd. (a).) Assault is a general intent crime that does not require a specific intent to injure the victim or a subjective awareness of the risk that an injury might occur. (People v. Williams (2001) 26 Cal.4th 779, 788, 790.) "Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.)
Garcia argues he is not guilty of assault because there is no evidence the shooter knew he was firing in Fowler's vicinity. Applying the proper standard to the facts in this record, it is clear there is ample evidence to demonstrate the requisite intent.
As Fowler came out of the garage to the patio where the men were dragging Michelle, Stella and Michelle heard Garcia yell "blast that fool." Michelle then saw Fowler go back into the garage, shut the door and heard gunshots. Garcia's comment and the multiple gunshots negate the possibility that the act of firing into the garage through the closed main garage door was accidental or inadvertent and establishes a reasonable basis for concluding that any reasonable person would realize that injury to a person inside the garage was likely to occur as a direct, natural and probable result of the act of shooting into the garage. It was not necessary for Garcia to be subjectively aware that Fowler was in the line of fire to convict him of assault with a deadly weapon because the underlying substantive offense of assault with a firearm does not require a specific intent to injure a particular victim. (In re Tameka C. (2000) 22 Cal.4th 190, 198.)
Garcia cites People v. Chance (2006) 141 Cal.App.4th 618, review granted November 1, 2006, S145458 (Chance), for the proposition that the direction of the shots fired into the garage is critical to proving assault as this information was necessary to show the shots would probably result in the application of force against Fowler. Even if Chance was properly citable as authority (which it is not (Cal. Rules of Court, rules 8.1105(e), 8.1115(a))), the case is factually distinguishable. Chance involved an unloaded firearm that was not pointed at the victim. (Chance, supra.) There is no need for us to speculate whether these facts established an assault because the facts here are different. Garcia's companion pointed a loaded gun toward the garage where Fowler hid and fired multiple shots into the garage through the main garage door. Accordingly, he had the ability to inflict violent injury and a reasonable person in his position would have realized that the nature of the act would probably and directly result in the application of physical force to another. (People v. Williams, supra, 26 Cal.4th at pp. 787-788, 790.) Here, there was sufficient evidence that Garcia committed assault with a semiautomatic firearm.
C. Attempted Kidnapping
To commit the crime of attempted kidnapping, the defendant must do a direct but ineffectual act towards the commission of a kidnapping (§ 207, subd. (a)), with the specific intent to kidnap. (People v. Cole (1985) 165 Cal.App.3d 41, 47-48.) The crime does not require proof that the defendant moved the victim a substantial distance; rather, the prosecution need only show that the defendant attempted to move the victim a substantial distance. (Id. at p. 50 ["the distance [the victim] was moved is immaterial -- asportation simply is not an element of the offense"].) The issue of whether the defendant had specific intent to commit an attempted crime presents a question of fact that may be inferred from circumstantial evidence. (Id. at p. 48.)
Garcia argues that his conviction for attempted kidnapping must be reversed because there was no evidence showing he and his companion intended to take Michelle anywhere and had he so intended, he could have done so because his companion was armed. We disagree.
Here, the men entered Stella's home unannounced and Garcia asked Stella "where is she." As soon as Michelle appeared, one man yelled "there she is" and Garcia yelled "grab her." If the jury accepted Stella's version of the facts, the men pulled Michelle from the living room, to the kitchen and then out the door as she struggled and Garcia told Michelle he was "taking her." Because the crime is attempted kidnapping, the distance Garcia moved Michelle is irrelevant. (People v. Cole, supra, 165 Cal.App.3d at p. 50.) Garcia's conduct and statements constituted substantial evidence from which the jury could reasonably infer that he specifically intended to kidnap Michelle, but did not complete the crime because she escaped and Fowler suddenly appeared. Accordingly, there was sufficient evidence to support his conviction for attempted kidnapping.
D. Burglary
Finally, Garcia contends his burglary conviction must be reversed because insufficient evidence supported the conclusion that he entered Stella's home to commit a felony. He asserts that there was no evidence showing he intended to take Michelle away, that he took nothing and that there was not enough evidence for the jury to determine whether taking the "paperwork" they sought would have been a theft crime.
A defendant is guilty of burglary if the prosecution establishes he entered a building harboring the intent to commit a theft or another felony. (§ 459; People v. Waidla (2000) 22 Cal.4th 690, 734.) The intent required for burglary is usually inferred from all the facts and circumstances surrounding the crime. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) As discussed above, the same evidence that supported Garcia's attempted kidnapping conviction also supported an inference that Garcia and his companion entered Stella's home intending to kidnap Michelle.
II. Alleged Instructional Error
A. Facts
The trial court initially instructed the jury that attempted kidnapping was a general intent crime. The following day, after discussing the issue with counsel in chambers, the trial court told the jury that it was "re-instructing [the jury] as to two points of law . . . ." The court then instructed the jury that:
"Ordinarily, the crime of kidnapping is a general intent crime. However, in this case, attempted kidnapping is charged. And attempted kidnapping is a specific intent crime. That means that attempted kidnapping requires the specific intent to commit a kidnapping and a direct but ineffectual act done for its commission.
"So I have revised and will reread to you CALCRIM 252. It will be included in the copy of the instructions that you have for your use during jury deliberations."
Thereafter, the trial court read the new instruction to the jury, highlighted the change in the instruction when it finished and allowed defense counsel to reopen her closing argument to address the change in the instructions. The trial court also provided the jury with a copy of CALCRIM No. 252, which explained that attempted kidnapping is a specific intent crime.
B. Analysis
Garcia complains that the trial court never advised the jury that its previous instruction was erroneous and was to be disregarded and by failing to do so, it presented two conflicting theories of culpability to the jury. Garcia's contention lacks merit.
"In considering a claim of instructional error . . . [we] must first ascertain what the relevant law provides, and then [we must] determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
Although the trial court erroneously told the jury that attempted kidnapping was a general intent crime, it corrected the mistake the next day by explaining the error and instructing the jury that attempted kidnapping was a specific intent crime. Defense counsel argued the change, the jury never saw a written copy of the erroneous instruction and the trial court provided the jury with a written copy of the correct instruction. Under these circumstances, there is no reasonable likelihood that the jury found Garcia guilty of attempted kidnapping without finding he had the specific intent to commit kidnapping.
Finally, Garcia contends he was prejudiced because there was insufficient evidence that he had the specific intent to kidnap Michelle. We reject this contention as there was sufficient evidence for the jury to infer that Garcia had the specific intent to kidnap Michelle. (Supra, section I.C.)
III. Alleged Prosecutorial Misconduct and Ineffective Assistance of Counsel
During closing argument, the prosecutor told the jury that the men "were trying to shoot Anthony Fowler." Garcia contends that the remark constituted prejudicial misconduct requiring reversal and that his attorney was ineffective for failing to object to the comment because there was no evidence that the shooter intended to harm Fowler and the misstatement supplied an otherwise missing element in the crime of assault with a firearm. We disagree on both points.
Defense counsel did not object to the People's argument nor request an admonition from the trial court; accordingly, Garcia's claim of prosecutorial misconduct is waived because a prompt objection and request for admonition would readily have cured the supposed misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820.) In any event, no misconduct occurred.
A prosecutor has broad latitude in commenting on the evidence and what he believes are its attendant inferences. (People v. Yovanov (1999) 69 Cal.App.4th 392, 407-408.) Here, the prosecutor's comment was a permissible inference based on the evidence that Garcia yelled "blast that fool" and the shooter complied within seconds by firing multiple shots through the main garage door into the garage.
Finally, because the prosecutor's remark did not amount to prejudicial prosecutorial misconduct, we necessarily reject Garcia's alternative contention that his trial counsel was ineffective for failing to object to the alleged misconduct or request a jury admonition. (Strickland v. Washington (1984) 466 U.S. 668, 686-687.) Indeed, "rarely will the failure to object establish incompetence of counsel, because the decision whether to raise an objection is inherently tactical. [Citation.]" (People v. Lewis (2001) 25 Cal.4th 610, 678.)
IV. Sentencing Error
The trial court sentenced Garcia under the three strikes law (§§ 667, subds. (b)-(i), 1170.12) to a midterm of 12 years on count 4 (assault with a semiautomatic firearm), a consecutive 5-year term for the prior serious felony enhancement, a concurrent term of 1-year 8 months on count 2 (attempted kidnapping) and a consecutive 1-year term for the firearm enhancement on count 2, for a total of 18 years in prison. The court stayed the terms for the remaining counts and struck the prison prior enhancement.
The Attorney General contends, and Garcia agrees, that the trial court imposed an unauthorized sentence when it imposed a consecutive term for the one-year firearm enhancement attributable to count 2, which was a concurrent term. A trial court cannot separate a felony and its attendant enhancement by imposing a concurrent term for the felony conviction and a consecutive term for the enhancement. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310-1311.) Accordingly, we agree that the trial court imposed an unauthorized sentence because the sentence and enhancement on count 2 must both run either consecutively or concurrently; they cannot be split as the court did. (Ibid.)
The Attorney General also contends that when the trial court ordered the term for count 2 to run concurrently to that of count 4, it should have imposed the full midterm on count 2. We agree. As one court explained, "[b]ecause concurrent terms are not part of the principal and subordinate term computation under section 1170.1, subdivision (a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time." (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3; People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4 [one-third the middle term applies to consecutive, not concurrent sentences].)
Finally, the Attorney General properly notes that the minute order and the abstract of judgment incorrectly state that the trial court sentenced Garcia on count 2 to a consecutive five-year term, and does not mention the five-year prior serious felony enhancement. Based on these errors, the judgment is reversed as to the sentence and the matter is remanded for resentencing and to make appropriate corrections to the abstract of judgment.
DISPOSITION
The judgment is reversed as to the sentence and the matter is remanded for resentencing. In all other aspects, the judgment is affirmed.
WE CONCUR: AARON, J., IRION, J.