Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. Super.Ct.No. RIF130732. Affirmed.
Mark S. Devore, 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 Steve Oetting, Emily R. Hanks, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
A jury convicted defendant of the lesser, necessarily included offense of attempted voluntary manslaughter on count 1 (count 1—Pen. Code, §§ 664, 192, subd. (a)), assault with a semiautomatic handgun (count 2—§ 245, subd. (b)), and being a convicted felon in proscribed possession of a firearm (count 3—§ 12021, subd. (a)(1)). The jury additionally found true allegations that defendant had personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)) in his commission of the count 1 offense and had personally inflicted great bodily injury resulting in the infliction of “paralysis of a permanent nature” upon the victim in his commission of the counts 1 and 2 offenses (§ 12022.7, subd. (b)). The trial court sentenced defendant to an aggregate term of 15 years 8 months’ imprisonment, consisting of the following: the midterm of six years on count 2 as the principal term; a consecutive four years on the personal use enhancement; a consecutive five years on the great bodily injury enhancement; one-third the midterm of three years on count 1, stayed pursuant to section 654; the midterm of four years for the personal use enhancement as to count 1, stayed pursuant to section 654; five years for the great bodily injury enhancement as to count 1, stayed pursuant to section 654; and one-third the midterm of 24 months, consecutive, on the count 3 offense.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that there is insufficient evidence to support the jury’s finding that the victim sustained paralysis “of a permanent nature”; that the court’s pronouncement of sentence upon the count 1 offense and enhancements attached thereto was proscribed by section 654’s bar against multiple punishment; that the matter must be remanded for resentencing for the court’s failure to state its reasons for imposing a consecutive sentence on the count 3 offense; and that defendant was deprived of his constitutional right to a jury finding on the factors used to support imposition of a consecutive term of imprisonment on the count 3 offense. We find defendant’s arguments unavailing and, therefore, affirm the judgment in full.
I. FACTS AND PROCEDURAL BACKGROUND
Defendant and victim, Marques Perez, were friends who occasionally socialized and smoked marijuana with one another. Perez had been to defendant’s house on prior occasions and had engaged in previous marijuana transactions with defendant. Perez gave defendant $160 and asked defendant to procure him some marijuana. Defendant failed to give Perez any marijuana and refused to return his money.
There was alternative testimony that Perez had told an investigator he had been given the marijuana, but “returned” it for being of poor quality. Thus, he was upset with defendant because defendant had failed to “refund” the purchase price.
Approximately six months later, Perez brought a friend over to defendant’s house in an attempt to collect the money he believed defendant owed him. Defendant told him he would pay him later. On June 7, 2006, approximately two days after the latter attempt to collect the debt, Perez returned to defendant’s home, bringing with him a gun for self-protection. Perez also intended to confront defendant with regard to alleged threats defendant had made against Perez’s family. Perez pounded on the door and informed defendant that he had a gun. Defendant refused to open the door, but could see Perez by looking through a window in the door. The two made eye contact. Perez heard a “pop” and felt something. He immediately dropped to the ground unable to move. Officers found Perez’s firearm underneath his legs. Perez was taken to the hospital where he was treated for five gunshot wounds to his neck, chest, hand, and leg.
Perez testified that he kept the handgun in his waistband and removed it to show defendant that he had the weapon, though he testified he never pointed it at defendant.
The weapon used by defendant to fire upon Perez was found by the authorities with its slide locked back, meaning that it had been emptied of all its rounds. The standard magazine capacity for that particular firearm is six rounds. Six shell casings from defendant’s gun were found at the scene: three were found inside the home and the remaining three were found on the porch. The window in defendant’s door was shot out.
The People charged defendant by amended information with attempted murder (count 1—§§ 664, 187, subd. (a)), assault with a semiautomatic firearm (count 2—§ 245, subd. (b)), and proscribed possession of a firearm by a felon (count 3—§ 12021, subd. (a)(1)). The People additionally alleged defendant had personally used a firearm in his commission of the count 1 offense and personally inflicted great bodily injury resulting in the infliction of “paralysis of a permanent nature” upon the victim in his commission of the counts 1 and 2 offenses. (§ 12022.7, subd. (b).)
At trial, Perez testified he never intended to use his gun. Sergeant Paul Bennett testified that Perez told him he intended to use the gun only to scare defendant into paying the money or providing the marijuana. Perez testified that after defendant refused to open the door, he put the gun back in his waistband and walked away. The victim heard the gunshot while his back was to the door. After Perez fell from the gunshot wound, defendant then walked out of the house and onto the porch. Perez asked defendant for a towel in order to stop the bleeding. Defendant then fired an additional three shots at him. Perez initially believed they were warning shots as he did not feel anything; however, he later learned he sustained additional gunshot wounds. Perez testified that he was disabled, “[p]aralyzed from the neck down.”
Defendant told Deputy Sheriff Jason Sevieri that he fired all the shots from inside the home through the window in the door while ducking down. Two of defendant’s neighbors testified they heard three successive shots with no pauses in between. One of defendant’s neighbors testified she heard six consecutive gunshots with no gaps.
Additional facts as developed at trial shall be discussed later as relevant to the issues raised on appeal.
II. DISCUSSION
A. Sufficient Evidence Supported the Jury’s Determination That Perez Suffered Paralysis of a Permanent Nature
Defendant contends insufficient evidence was adduced at trial to support the jury’s determination that Perez’s paralysis was permanent; hence, he maintains the consecutive sentence imposed on the great bodily injury enhancement must be reduced by two years. We disagree.
Evidence is sufficient to sustain a judgment in a criminal case if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139.) Reversal is unwarranted unless it appears that upon no hypothesis whatever is there sufficient evidence to support the judgment. (People v. Manriquez (2005) 37 Cal.4th 547, 577.) “We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction. [Citation.] Thus, we presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.]” (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.)
Section 12022.7, subdivision (b) provides that where a defendant is found to have personally inflicted great bodily injury which causes the victim “to suffer paralysis of a permanent nature,” his sentence shall be enhanced by “an additional and consecutive term of imprisonment . . . for five years.” “As used in this subdivision, ‘paralysis’ means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism.” (§ 12022.7, subd. (b).)
Initially we note that a jury’s factfinding function is not limited to the testimony that it hears, but may also be comprised of other observations it makes during the proceedings. Here, the court noted of Perez, outside the presence of the jury, that “[o]ur first witness this morning is disabled and because of that he requires special arrangements to transport him and have him come and testify. We’re dependent upon medical transport being available to do that, and it involves a whole bunch of arranging.” Moreover, Perez apparently testified from a gurney. While the jury was not present to hear the exchanges made between the court, the attorneys, and Perez regarding the difficulty with which the court obtained Perez’s presence at court, it is rational to infer that the jury did visually observe that Perez was, in fact, paralyzed.
Additional testimonies were adduced which further supported this determination and the rational inference therefrom that the paralysis was of a permanent nature. Perez testified that immediately after he felt the first gunshot wound on June 7 2006, he couldn’t move, despite trying. He further testified that despite being hit by additional gunshots, he could not feel them. District attorney investigator Nicholas Labella likewise testified that Perez told him he could not feel the subsequent gunshots. Moreover, Dr. Kamal Woods, Perez’s treating trauma surgeon immediately after the incident, testified that the gunshot wound to Perez’s neck injured the spine, which can cause an instantaneous, temporary paralysis called “spinal shock” lasting from minutes to hours. This would account for defendant’s inability to move or feel the additional shots. Thus, defendant became paralyzed immediately after one of the initial gunshot wounds.
However, Perez’s paralysis did not last only minutes or hours. On the day of his testimony, May 14, 2007, nearly a year after the shooting, he testified that he was disabled; was paralyzed from the neck down; could move only his head, shoulders, and a bit of his arm, but nothing on the trunk of his body. This is, itself, suggestive that Perez’s paralysis was of a permanent nature. Indeed, Dr. Woods testified that due to Perez’s injuries “[t]here can also be in addition to that spinal shock more long term injury to the spinal cord.” Dr. Woods observed 20 CAT scan images of Perez’s neck area and reviewed his medical records. He testified that the evidence of defendant’s injuries reflected in those documents, such as air inside defendant’s spinal canal and a fracture on one of the bones of his spine and neck, were consistent with his resultant paralysis. Finally, investigator Labella testified that Perez was a paraplegic and, thus, unable to demonstrate how he showed his gun to defendant. The jury could reasonably infer from these testimonies that Perez’s paralysis, incurred immediately after the shooting and continuing to the day he testified nearly one year later, was “of a permanent nature.” (§ 12022.7, subd. (b).)
B. The Court’s Pronouncement of Sentence on the Count 1 Offense and Its Enhancements Was Not Error
Defendant contends that the court’s pronouncement of sentence on count 1 and its related enhancements was barred by section 654’s bar against multiple punishment for crimes committed as a single act or indivisible course of conduct. However, while the court did pronounce sentence on count 1 and its related enhancements, it explicitly stayed imposition of those sentences pursuant to section 654; hence, it committed no error.
Section 654, subdivision (a) provides, in pertinent part: “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.” Section 654 precludes multiple punishments not only for a single act, but also for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; see also People v. Centers (1999) 73 Cal.App.4th 84, 98; People v. Akins (1997) 56 Cal.App.4th 331, 338-339; People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) “The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
“When a defendant suffers multiple convictions, sentencing for some of which is precluded by operation of section 654, an acceptable procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Such stay is to be effective pending the successful service of sentence for the more serious conviction, at which time the stay is to become permanent.” (People v. Miller (1977) 18 Cal.3d 873, 886, overruled on other grounds in People v. Oates (2004) 32 Cal.4th 1048, 1067-1068, fn. 8; see also People v. Niles (1964) 227 Cal.App.2d 749, 755-756; People v. Jenkins (1965) 231 Cal.App.2d 928, 934-935; People v. Dominguez (1995) 38 Cal.App.4th 410, 420.)
Here, without doubt, separate punishments for defendant’s convictions for attempted voluntary manslaughter and assault with a semiautomatic firearm would be proscribed by section 654’s bar against multiple punishment because the basis for those convictions was the same act: defendant’s shooting of Perez. Indeed, the People conceded that imposition of sentence on count 1 would be barred if the court imposed sentence on count 2 as the principal term. Nevertheless, defendant’s contention that the court was barred from pronouncing sentence on those offenses despite the fact that it explicitly stayed imposition of those very sentences is, itself, erroneous. Permitting a sentencing court to pronounce sentence on convicted offenses while subsequently staying imposition of those sentences pursuant to section 654 provides defendant with the protection to which he is entitled whilst simultaneously ensuring that he does not escape punishment for a convicted offense or impose an undue burden on the courts should the imposed offense be overturned or remanded on appeal. (People v. Niles, supra, 227 Cal.App.2d at p. 756; People v. Jenkins, supra, 231 Cal.App.2d at pp. 934-935.) This is precisely the procedure which was employed by the sentencing court here. It pronounced sentence on count 1 and the related enhancements, but stayed imposition of those terms pursuant to section 654. Thus, the court committed no error.
C. Defendant Forfeited Any Objection to the Trial Court’s Failure to State Its Reasons for Imposing a Consecutive Sentence on Count 3 by Failing to Object Below
Defendant maintains the matter must be remanded to require the trial court to state its reasons for imposing a consecutive sentence on count 3. We find that defendant forfeited this issue by failing to object below.
A sentencing court is required to provide a statement of reasons when imposing consecutive sentences. (Cal. Rules of Court, rule 4.406(a), (b)(5).) Nevertheless, the forfeiture doctrine applies “to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353, italics added (Scott).) “Of course, there must be a meaningful opportunity to object to the kinds of claims otherwise deemed [forfeited] . . . . This opportunity can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices.” (Id. at p. 356.)
Here, the probation officer’s report put defendant on notice that he could be sentenced to a consecutive term for his count 3 conviction. At the sentencing hearing, the People explicitly noted that the court could impose either a consecutive or concurrent term on count 3. The court indicated that it was tentatively inclined to impose a consecutive sentence on count 3. Defendant was then given ample opportunity to request a statement of reasons for such a sentence when he argued for the lesser term on count 2. This he did not do. Defendant likewise failed to object once the court formally pronounced sentence on count 3. Thus, defendant has forfeited any objection to the court’s failure to state its reasons for imposing a consecutive term on count 3.
In any event, any error was harmless as it is not reasonably probable that the trial court would have been unable to provide an adequate statement of reasons for imposing a consecutive sentence on count 3. (People v. Alvarado (2001) 87 Cal.App.4th 178, 195-196.) The People outlined numerous appropriate criteria which the court could have used to support its imposition of a consecutive term. The court indicated that it had “spent a considerable amount of time working on the sentencing” in this case. The court itself cataloged a number of aggravating factors which would appropriately provide the proper criteria for imposing a consecutive term on count 3; including that Perez was shot in the back, defendant’s lack of success on probation, and defendant’s violation of parole in the instant case, both by possessing a gun and selling drugs. (Cal. Rules of Court, rule 4.425.) It noted that “the factors in aggravation are perhaps more numerous[.]” It did not improperly use any of those factors. (Ibid.) Thus, were we to remand for a statement of reasons, we have no doubt that the trial court would articulate appropriate reasons for imposing a consecutive sentence on count 3.
In his reply brief, defendant argues for the first time that the trial court’s failure to state its reasons for imposing a consecutive sentence on count 3 rendered it an “unauthorized” or “illegal” sentence; hence, he regards his challenge to the imposition of such a sentence as nonforfeitable. The defendant in Scott made a similar claim: “Defendant argues that this case is different in kind from other cases in which the waiver doctrine has been applied. He relies on the venerable notion that claims involving ‘unauthorized,’ ‘void,’ or ‘excessive’ sentences, and sentences entered in ‘excess of jurisdiction,’ can be raised at any time.” (Scott, supra, 9 Cal.4th at p. 354.) The Scott court found that claim lacking, noting that “a sentence is generally ‘unauthorized’ [only] where it could not lawfully be imposed under any circumstance in the particular case.” (Ibid.) Here, as in Scott, the sentencing court’s ultimate sentence was authorized by law. Thus, the issue was and is forfeit for defendant’s failure to object at the time of sentencing.
D. Defendant Had No Constitutional Right to a Jury Determination on Factors Subjecting Him to a Consecutive Sentence on Count 3
Defendant contends that the trial court’s imposition of consecutive sentences violated his right to a jury trial under the Sixth Amendment to the United States Constitution.
Our Supreme Court in People v. Black (2007) 41 Cal.4th 799, 821 (Black II) rejected the contention that the imposition of consecutive terms violates Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. 270. The court in Black II explained that Cunningham did not undermine the previous conclusion in People v. Black (2005) 35 Cal.4th 1238 that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights. (Black II, supra, at p. 821.) Blakely’s underlying rationale is inapplicable to the decision to impose consecutive or concurrent sentences. (Black II, supra, at p. 821.)
In deciding whether to impose consecutive or concurrent terms, a trial court may consider aggravating and mitigating factors, but is not required to justify the imposition of consecutive terms by making a finding an aggravating circumstance exists. (Black II, supra, 41 Cal.4th at p. 822.) “The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.]” (Id. at p. 823.)
We are bound by Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we conclude imposition of consecutive sentences did not violate defendant’s jury trial rights.
III. DISPOSITION
The judgment is affirmed.
We concur: McKinster Acting P.J., Richli J.