Opinion
F055142
6-25-2009
THE PEOPLE, Plaintiff and Respondent, v. JULIAN GONZALEZ, Defendant and Appellant.
Curt R. Zimansky, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
OPINION
THE COURT
Before Levy, A.P.J., Gomes, J., and Hill, J.
Unless otherwise noted, all statutory references are to the Penal Code.
PROCEEDINGS
On September 20, 2007, appellant, Julian Gonzalez, was charged in an information with discharge of a firearm with gross negligence (Pen. Code, § 246.3, subd. (a), count one),1 being a felon in possession of a firearm (§ 12021, subd. (a)(1), count two), and misdemeanor battery (§ 242). The information alleged appellant had a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). The information alleged a prior serious felony enhancement (§ 667, subd. (a)) and a prior prison term enhancement (§ 667.5, subd. (b)).
On November 30, 2007, a jury found appellant guilty of counts one and two but acquitted him of count three. In a bifurcated proceeding, the trial court found the remaining allegations were true.
On February 19, 2008, the court sentenced appellant on count one to the low term of 16 months, doubled to 32 months pursuant to the three strikes law. The court imposed a sentence of five years for the prior serious felony allegation. Appellants sentence on count two was ordered to be served concurrently. Appellants total prison term was set at seven years eight months. On appeal, appellant contends there was insufficient evidence that he acted with gross negligence in discharging a firearm.
Sentence was not imposed on the prior prison term enhancement. The prior serious felony and prior prison term enhancements were for the same offense. The trial court could only impose sentence on the enhancement carrying the greater term. (People v. Jones (1993) 5 Cal.4th 1142, 1151-1152.)
FACTS
On August 31, 2007, Jorge Moreno went to his grandparents (grandparents) home in Woodlake to borrow a tow dolly. Morenos grandparents lived at the south end of South Palm Street at one corner of an intersection with West Deltha Avenue. There is a large hedge in front of the grandparents home. There is a residence across the street from the grandparents home on the opposite corner. Immediately to the north of the corner residence across from the grandparents home is a rental property at 484 South Palm owned by the Cecilia Renteria and her husband. Appellants residence is next to the rental property at 480 South Palm.
Photographic exhibits depicting residences and the neighborhood where the incident occurred were admitted into evidence.
South Palm Street runs north and south. West Deltha Avenue runs east and west. The two streets dead-end into each other at a corner that forms a ninety degree intersection. South of the intersection of South Palm and Deltha was an area of open field with some residences to the side of the intersection of South Palm and West Deltha.
Morenos grandfather was ill with cancer. Moreno was drinking a lot that day. Appellant is Morenos cousin. When appellant came to his grandparents home, Moreno thought he seemed sad. Appellant was yelling at some men in a mixture of Spanish and English Moreno calls Spanglish. The men, who were having a barbeque, were yelling back at appellant in Spanish. Moreno tried to calm everyone down. Moreno could not clearly recall ensuing events at trial but made statements after the incident to Officer Elias Herrera.
Moreno told Herrera that when he arrived at his grandparents home, appellant was angry. He was kicking and breaking things in the alley. Moreno said appellant started cussing at people across the street who were having a barbeque. Appellant went to his home and came out with a gun. Appellant fired a shot in the air and a second shot south, down the middle of South Palm. Appellant walked south toward the empty field and with his gun lowered, fired three or four more rounds. Herrera explained that even a small caliber handgun like a .22 would have a range of one-half mile.
Cecilia Renteria was with her husband doing maintenance at their rental property at 484 South Palm. Appellant was yelling. Appellant appeared to be upset. He crossed Renterias property and went into a residence. Renteria heard the sound of breaking glass. She saw appellant return outside. When appellant reached the Renteria property line, Renteria heard a gunshot. She looked over and saw appellant holding the gun toward the sky firing a second shot. Renteria went behind the apartments because she was scared. As Renteria went into the renters residence to call the police, she heard another gunshot. Renteria heard three shots. Renteria thought the shots sounded like they came from a small caliber gun like a .22.
Renterias tenant, Noe Reynoso, took his baby daughter inside their home when he heard gunshots. Martha Estrada, who lived at 451 South Palm, heard what sounded like firecrackers.
When Detective Leonard Phillips of the Woodlake Police Department arrived at the scene, a woman pointed toward a group of people at the corner of South Palm and West Deltha. Phillips saw appellant running west with a metal object like a pipe in his hand. Phillips chased appellant. Appellant ran toward outbuildings behind trees and a residence. Phillips yelled at appellant. Appellant tried to open the back door of a residence with the metal pole. Phillips unholstered his firearm, identified himself, and ordered appellant to drop the pole and get down on the ground. Appellant was very upset and smelled strongly of alcohol. Phillips did not find a firearm on appellant.
DISCUSSION
Appellant contends there was insufficient evidence at trial that he willfully discharged a firearm in a grossly negligent manner. Appellant argues that he did not direct his gun fire at the people at the barbeque with whom he had exchanged angry words. Appellant points out that he either fired his gun in the air, where any bullets would land in an empty field, or down the middle of South Palm toward an empty field. We disagree with appellants characterization of events and will affirm.
In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — 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. The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. It is the jury, not the appellate court, which must be convinced of a defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320 and People v. Johnson (1980) 26 Cal.3d 557, 578.)
In reviewing a challenge to the sufficiency of the evidence, appellate courts do not determine the facts. We examine the record as a whole in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Guerra (2006) 37 Cal.4th 1067, 1129; People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
Section 246.3 was enacted primarily to deter the dangerous practice in some communities of discharging firearms into the air in celebration of festive occasions. (People v. Alonzo (1993) 13 Cal.App.4th 535, 539-540 (Alonzo.) Section 246.3 requires proof the defendant intended to discharge a firearm. A defendant who believed the firearm he or she discharged was not loaded would not be guilty of this statute. There are circumstances in which the discharge of the firearm is not unlawful, even if the act entails a risk of serious harm to others. One may be privileged to employ force in defense of oneself or another by discharging a firearm and is entitled to use such force as is reasonable under the circumstances to repel an honestly and reasonably perceived threat of imminent harm. (People v. Robertson (2004) 34 Cal.4th 156, 167 (Robertson), [overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1200-1201].)
Section 246.3, subdivision (a) provides: "Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison."
The requirement that the defendant must have discharged the firearm in a "grossly negligent manner" is not defined in the statute. In the context of criminal liability, the usual meaning of this phrase is conduct that is aggravated, culpable, gross, or reckless. It is conduct that departs from how an ordinarily prudent or careful person would act under the same circumstances so as to be incompatible with a proper regard for human life. (Robertson, supra, 34 Cal.4th at p. 168.)
Appellants argument that he fired his gun into the air in an unpopulated area where bullets would land in an open field is not a reasonable interpretation of the facts. Renteria saw appellant fire a shot into the air from the property line of her rental residence. Renterias property was inside a residential neighborhood. Had the bullet fired in this manner come down in that location, it could have hit a bystander on either side of South Palm Street. Renteria was in the front yard of her rental property when appellant fired a round into the air. Her tenant, Renoso, was outside with his baby daughter and had to take her into the home. The bullet appellant fired could have come down on one of the people at the nearby barbeque. Appellants conduct was aggravated and reckless, showing a disregard for human life.
Appellants discharging of multiple gunshots down South Palm Street was also grossly negligent. Although appellant characterizes these as harmless shots pointed toward an open field, the trajectory of the shots would have gone through the intersection of South Palm and West Deltha. Appellant was simply lucky he did not hit a pedestrian, a bicyclist or a motorist turning the corner from West Deltha while he was firing his gun. Furthermore, someone could have been in the open field where appellant aimed his gun. One of the photographs of the field shows buildings across W. Deltha. The range of even a .22 caliber bullet, according to Officer Herrera, was one-half mile. The neighborhood where this incident occurred was not open countryside, it was populated.
Appellant tries to distinguish this case from Alonzo. In Alonzo, the defendant fired two rounds from a firearm straight up from the curb of a convenience store. The store was located in a commercial business area located on a four-lane thoroughfare street. (Alonzo, supra, 13 Cal.App.4th at p. 537.) The area was described by one officer as quite busy. (Id. at p. 538.) The Alonzo court found the defendants conduct constituted a violation of section 246.3 because the gun was fired in an area where people were present. (Id. at p. 540.) Many people were near appellant, several were outdoors, when he began firing his gun. The appellants neighborhood was not isolated countryside or wilderness. We reject appellants attempt to distinguish the Alonzo case.
Moreno told Officer Herrera that appellant fired between four and six shots down South Palm. Renteria heard three shots. Estrada, another neighbor, heard what sounded like firecrackers. Appellant fired multiple shots, not just one and was obviously intoxicated at the time. We agree with respondent that appellants intoxication and emotional state made his conduct more dangerous. Appellants intoxication, his emotional state, and his discharge of multiple rounds made his conduct even more reckless and dangerous to human life than the conduct of the defendant in Alonzo.
DISPOSITION
The judgment is affirmed.