Opinion
B160930.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. JAIME GOMEZ, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jaime Gomez of two counts of attempted willful, deliberate premeditated murder and assault with a firearm and found true numerous special allegations. The trial court sentenced Gomez to state prison for a total term of 70 years to life. On appeal, Gomez complains of sentencing error. We affirm the judgment as modified.
Gomezs date of birth is February 5, 1979.
Gomez also argues the trial court committed constitutional error by instructing the jury with CALJIC No. 17.41.1. In People v. Engelman (2002) 28 Cal.4th 436, 439-440, our Supreme Court held the instruction does not infringe upon a defendants federal or state constitutional right to trial by jury or state constitutional right to a unanimous verdict. The court directed, however, the instruction not be given in future trials due to the risk it might impair the proper functioning of jury deliberations. (Id. at p. 441.) In the present case there was no jury deadlock, no holdout juror and no report of any juror refusing to follow the law. In short, there is no indication the use of the instruction affected the jury in any way. We find no reversible error.
FACTUAL AND PROCEDURAL BACKGROUND
One afternoon Arthur Flowers was standing with a group of friends outside a residence. His friend "Johnny" approached, said "Gangster" had just pistol-whipped him, and pointed at Gomez who was walking down the street. Gomez approached and asked Johnny if he wanted to fight. Flowers and his friends punched and kicked Gomez, causing him to flee.
Flowers walked home to ask his mother for some money. He met up with his friend, Phillip Austin. Flowers mother did not have any change. She walked with Flowers and Austin to the liquor store where she bought a pack of cigarettes and gave Flowers five dollars. The three of them left the liquor store and stood on the corner. Flowers saw Gomez in front of a laundromat across the street.
Suddenly, Gomez ran towards them, pulled a gun from his waistband, and started shooting. Flowers heard at least six shots. Austin was hit in the neck and used his cell phone to call 911. Mrs. Flowers told her son to run. Gomez shot at Flowers as he fled. Two of the shots hit the window of a martial arts studio. Gomezs gun jammed. He apparently cleared the jam and again shot Austin, who was lying on the ground. Mrs. Flowers pleaded with Gomez to stop shooting Austin. Gomez fled and Mrs. Flowers remained with Austin until the ambulance arrived. Austin was shot four times.
Gomez was convicted of attempted willful, deliberate, premeditated murder (counts I [Phillip Austin] and IV [Arthur Flowers]) and assault with a firearm (counts II [Phillip Austin] and III [Arthur Flowers]). (Pen. Code, §§ 664, 187; 245, subd. (a)(2).) The jury found Gomez personally used a handgun as to counts II and III and personally inflicted great bodily injury on Philip Austin, as to counts I and II. (Pen. Code, §§ 12022.5, subd. (a); 1203.06, subd. (a)(1); 12022.7, subd. (a).) The jury also found as to counts I and IV that Gomez personally used and discharged a handgun, and as to count I that he personally and intentionally discharged a handgun proximately causing great bodily injury to Philip Austin. (Pen. Code, § 12022.53, subds. (b), (c), (d).)
At sentencing, the trial court imposed an aggregate sentence of 70 years to life, as follows: For the attempted murder of Austin, seven years to life, enhanced by 25 years to life under Penal Code section 12022.53, subdivision (d), enhanced by three years under Penal Code section 12022.7, subdivision (a). For the aggravated assault of Austin, selected as the base term, the upper term of four years consecutive, enhanced by three years under Penal Code section 12022.7, subdivision (a). For the aggravated assault of Flowers, one-third the middle term or one-year consecutive. For the attempted murder of Flowers, seven years to life consecutive, enhanced by 20 years under Penal Code section 12022.53, subdivision (c).
This appeal followed.
DISCUSSION
Gomez makes two contentions of sentencing error. First, he argues Penal Code section 654 bars the consecutive sentences for attempted murder and assault with a deadly weapon as to each victim. Additionally, Gomez maintains that the trial court improperly imposed the Penal Code section 12022.7, subdivision (a) (three-year) enhancement for the attempted murder of Austin. Both of Gomezs contentions have merit.
Improper Consecutive Sentences
Subdivision (a) of Penal Code section 654, prohibits multiple punishment for [a]n act or omission that is punishable in different ways by different provisions of law . . . ."
The test presently governing the application of section 654 was first stated in Neal v. State of California (1960) 55 Cal.2d 11. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.)
In Neal, the defendant threw gasoline into the bedroom of his two victims and ignited it. (Neal v. State of California, supra, 55 Cal.2d at p.15.) The defendant was convicted on two counts of attempted murder and one count of arson. (Ibid.) The court in Neal stated that "[w]hether 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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Id. at p. 19.) Applying this rule, the Neal court held that the defendant could not be punished for arson and attempted murder, reasoning that "the arson was the means of perpetrating the crime of attempted murder" and that "the arson was merely incidental to the primary objective of killing" the two victims. (Id. at p. 20.) The Neal court therefore ruled that the defendant could be punished only for attempted murder, the more serious crime. (Neal v. State of California, supra, 55 Cal.2d at p. 19; see also People v. Harrison (1989) 48 Cal.3d 321, 335.)
Conversely, if a defendant "entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations 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. Beamon (1973) 8 Cal.3d 625, 639, criticized on other grounds in People v. Latimer, supra, 5 Cal.4th 1203, 1209, fn. 4.) "`The question of whether the acts of which defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendants intent and objective in committing the acts. This determination will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.]" (People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) However, the applicability of Penal Code section 654 to conceded facts is a question of law. (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5, citing Neal v. State of California, supra, 55 Cal.2d at p. 17.)
The case before us falls squarely under Neal. Gomezs acts of shooting at Austin and Flowers were the means by which he attempted to murder them, and thus were merely incidental to this primary objective. Accordingly, Gomez can only be punished for attempted murder against each victim, the more serious crime.
The People contend otherwise, citing People v. Trotter (1992) 7 Cal.App.4th 363. However, Trotter is factually distinguishable. In Trotter, the defendant stole a taxi cab and fired three shots at a pursing police vehicle. (Id. at pp. 365-366.) The second shot followed the first shot by a minute, and several seconds separated the second and third shots. (Ibid.) The Trotter court concluded that the defendant was properly punished for three acts of assault, reasoning that the time intervals between the shots evinced a separate intent behind each shot. (Id. at pp. 366-368.) Here, unlike Trotter, the offenses with which Gomez was charged were simultaneous, and not sequential. Moreover, unlike Trotter, as the prosecutor argued, Gomez fired numerous shots within a very brief period. Nothing in this record supports the nonsensical conclusion that Gomez had separate intents when he pulled the trigger of shooting the victims on the one hand, and killing them on the other. Instead, Gomez shot at Austin and Flowers intending to kill them. Although Gomez may have had an opportunity "for reflection between shots," as opined by the trial court, it is clear that his convictions were based on all the shots fired. The trial courts apparent attempt to apportion the acts of shooting between the two offenses is simply not supported by the record. Accordingly, punishment must therefore be stayed for the offenses of assault with a firearm (counts II and III), as well as their attendant enhancements.
It is significant that in presenting the evidence at trial, the prosecutor never attempted to distinguish between acts that gave rise to the charges of assault with a firearm and the acts that gave rise to the charges of attempted murder. Similarly in argument to the jury, the prosecutor only argued the evidence in terms of the attempted murder charges.
JOHNSON, J., Concurring and Dissenting.
I concur with the judgment as to the majoritys disposition of the sentence on the Flowers assault, but respectfully dissent as to multiple sentences imposed for the Austin assault.
I have some quarrel with the majoritys rationale, even assuming it was the trial courts call whether the attempted murder and assault were separate acts or part of a single transaction with a single objective. The majority opinion relies heavily on cases where the defendant was not sentenced consecutively for attempted murder and the assault through which the murder was attempted, as happened here, but was sentenced for two assaults against the same victim, or a series of sex acts against the same victim. Those situations are distinguishable. As the Supreme Court pointed out in Neal v. State of California, the intent element of the attempted murder offense subsumes the intent element of the single or several shots fired as a "means of perpetrating" that more serious crime. The fact appellant shot several times does not permit consecutive sentencing for the attempted murder and the assault convictions any more than the defendant in Neal could have been punished for both attempted murder and arson had he used a half dozen matches and lit the fire at several places rather than one.
The main ground for this dissent, however, rests on the U.S. Supreme Court decision in Apprendi v. New Jersey. As argued in my dissenting opinion in People v. Cleveland, under 654 the issue whether appellant was engaged in a single transaction with a single objective rather than several independent acts with different objectives determines the level of punishment he will suffer for his criminal conduct. This issue, in turn, involves a decision about the mens rea of the very criminal conduct in which defendant engaged and of which the jury tried him. As such, under Apprendi, it should be a jury question, not something decided by the judge.
The absence of a jury trial on the factual issues relevant to consecutive sentencing is even more problematical in this case. Here we do not know whether the jury found appellant guilty of each and every shot as an assault or only the first — or only the last three. Yet the majority opinion finds it critical there was a lapse of time — and appellants gun jammed — between the first shot wounding Austin and the last three. True, there is substantial evidence as to each of the four shots which the jury could have used to convict appellant of assault. But since there was only a single conviction for the assault against Austin we have no way of knowing whether it was based on one or all of those shots. If the prosecution had charged the two sequences of shooting as separate assaults — as was done with respect to each of the three shots fired in People v. Trotter — and the jury convicted appellant of both assaults we would at least have some factual basis in the jury verdict for the majoritys rationale. Beyond that, of course, here we lack a jury verdict regarding the critical issue of appellants mens rea. Were both sequences of shooting a part of a single attempted murder or were there two attempts to murder the same victim or was the first shot merely an assault aimed at wounding Austin and the last three an attempt to murder the fallen victim?
In this case, the jury convicted appellant of only two relevant offenses, one of which is the means through which the other offense was committed. In the absence of a jury determination these two offenses were somehow committed with different objectives or even that they involved more than one criminal act, it is my view 654 does not permit consecutive sentencing for the two offenses. It is not for the trial judge — or for this court — to take a jury verdict convicting appellant of a single assault used as the means of accomplishing an attempted murder and turn it into two acts of assault justifying consecutive sentencing where a single assault would not support such a sentence. Notes:
People v. Trotter (1992) 7 Cal.App.4th 363.
People v. Harrison (1989) 48 Cal.3d 321.
Neal v. State of California (1960) 55 Cal.2d 11, 20.
Apprendi v. New Jersey (2000) 530 U.S. 466.
People v. Cleveland (2001) 87 Cal.App.4th 263, 272 et seq. (conc. & dis. opn. of Johnson, J.)
People v. Trotter, supra, 7 Cal.App.4th 363, 365.
Improper Enhancement
In conjunction with the attempted murder of Austin, the trial court imposed enhancements of 25 years to life for intentionally and personally discharging a firearm, causing great bodily injury (Pen. Code, § 12022.53, subd. (d)) and three years for personally inflicting great bodily injury (Pen. Code, § 12022.7, subd. (a)). The People concede and we agree the trial court erroneously imposed the Penal Code section 12022.7 enhancement in addition to the section 12022.53 (d) enhancement. Penal Code section 12022.53, subdivision (f) states that "[a]n enhancement for great bodily injury as defined in Section 12022.7 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to [Penal Code section 12022.53] subdivision (d)."
Accordingly, the three-year great bodily injury enhancement of Penal Code section 12022.7, subdivision (a) should be stayed.
DISPOSITION
For reasons explained in this opinion, the judgment with respect to Gomezs sentence is modified to seven years to life for the attempted murder of Austin (count I), enhanced by 25 years to life under Penal Code section 12022.53, subdivision (d); seven years to life consecutive for the attempted murder of Flowers (count I) enhanced by 20 years under Penal Code section 12022.53, subdivision (c) for a total term of 59 years to life. The three-year enhancement under Penal code section 12022.7, subdivision (a) for count I is stayed. The sentences for assault with the firearm (counts II and III) and their attendant enhancements are stayed. In all other respects, the judgment is affirmed.
We concur: PERLUSS, P. J.