Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. VCF139691. Gerald F. Sevier, Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant Jonathan Hamilton fired a gun into a car carrying four passengers, including two young children in the back seat. The gunshot struck and seriously injured the driver of the car. A jury subsequently convicted defendant of one count of attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a); count 1), one count of shooting at an occupied vehicle (§ 246; count 2), and four counts of assault with a deadly weapon (§ 245, subd. (a)(2); counts 3-6). The jury found the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that defendant personally discharged a firearm causing great bodily injury in counts 1 and 2 (§ 12022.53, subd. (d)), that defendant personally used a firearm in counts 1 through 6 (§ 12022.5, subd. (a)(1)), and that defendant personally inflicted great bodily injury in counts 1 through 3 (§ 12022.7, subd. (a)).
All further statutory references are to the Penal Code.
The trial court sentenced defendant to an aggregate prison term of 57 years to life. The court sentenced defendant to an indeterminate term of 40 years to life as follows: 15 years to life for the attempted premeditated murder in count 1 and a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement. The court sentenced defendant on count 4 to a consecutive determinative term of 17 years as follows: the middle term of three years for assault with a firearm, 10 years for the section 186.22, subdivision (b)(1) enhancement, and four years for the section 12022.5, subdivision (a)(1) enhancement. The court sentenced defendant on both counts 5 and 6 to concurrent terms of 17 years as follows: three years for assault with a firearm, 10 years for the gang enhancement, and four years for the firearm use enhancement. Sentencing on counts 2 and 3 was stayed pursuant to section 654.
On appeal, defendant contends: (1) insufficient evidence supports his conviction of attempted premeditated murder; (2) insufficient evidence supports his convictions of assault with a deadly weapon on the two children in the car (counts 5 and 6); (3) if sufficient evidence supports counts 5 and 6, the court erred in refusing to give a proposed defense instruction that would have told the jury that in order to convict defendant of the crime of assault with a deadly weapon, it had to find “defendant actually knew of the presence of the person assaulted or shot at, not simply that he should have known that such person was there”; (4) the imposition of multiple street gang enhancements violated section 654; and (5) the lesser firearm use enhancements in counts 1 and 2 must be stricken. We affirm.
FACTS
On January 15, 2005, around 11:00 p.m., Jonathan Martinez was driving his white Ford Taurus home from a wedding in Tulare. His girlfriend, Rosalinda Arzola, was seated in the back seat of the vehicle with their eight-month-old son, Xavier, and Martinez’s two-year-old nephew, Damien. Xavier and Damien were both seated in children’s car seats.
Martinez stopped at a gas station. While he was pumping gas, he saw Deon Uranga standing next to a blue Dodge Neon. Uranga was “dogging” Martinez (i.e., staring at him and giving him dirty looks). Arzola and Martinez both recognized Uranga from high school. Arzola told Martinez not to stare back at Uranga. Martinez finished pumping his gas and pulled out of the gas station.
Martinez started to head west on Tulare Avenue. While he was stopped at a red light at the intersection of Tulare Avenue and O Street, the blue Neon pulled up next to the right side of Martinez’s car. There were four people inside the Neon. Arzola recognized the driver, Adam Hutchinson, and Uranga, who was seated behind Hutchinson. She did not recognize the other two passengers.
Martinez rolled down his window. The four people in the Neon were yelling gang insults at him, including “scrap,” which is a derogatory name for a Sureno gang member. Martinez yelled back at them, saying he did not know them, he was not a “scrap,” and that he had his family in the car.
When the stoplight turned green, Martinez began driving. The driver’s side window shattered and a gunshot struck him in the neck and arm. Martinez drove a little further, stopping in the parking lot of a fast food restaurant. Arzola called 911. She identified Hutchinson and Uranga to the 911 dispatcher. As a result of the gunshot, Martinez was in the hospital for two weeks and had to have surgery on his arm.
Fernando Ynclan, a police officer for the City of Tulare, received a dispatch call and was given the information provided by Arzola. Officer Ynclan, who was familiar with Hutchinson, drove to an area where he had seen the blue Neon in the past. Officer Ynclan spotted the Neon and began following it. When the car was stopped, Hutchinson was driving, defendant was in the front passenger seat, and Uranga and David Nolen were in the back seat.
All four people in the Neon were tested for gunshot residue. Defendant and Uranga tested positive for particles of gunshot residue on their hands.
Two bystanders witnessed the shooting: Tanisha Carolina and Mark Sanchez. Carolina was outside working in her yard. She told police that she saw the front passenger of the Neon get out at the stoplight and throw his hands up in the air before she heard a gunshot. Sanchez, who was in his car stopped at the light, told police that he saw a man get out of the right side of the Neon, lean over the roof of the car, and shoot into the white Taurus before getting back into the Neon.
David Nolen, one of the four people in the Neon, testified for the prosecution. Nolen testified that on the night of the shooting, he and his companions had been driving around, smoking marijuana and drinking beer. Hutchinson eventually stopped at a gas station, where Uranga started arguing with Martinez. Shortly after Martinez left the gas station, Nolen and his companions followed him to the intersection of Tulare Avenue and O Street, where all four started arguing with Martinez. Martinez responded by saying that he did not know “him,” which Nolen took to mean Uranga.
At trial, Nolen testified that he heard a gunshot when the cars were stopped at the stoplight but that he did not see anybody get out of the Neon. However, he previously told district attorney investigator Gilbert Cardenas that, while Uranga and Martinez were arguing with each other from their respective cars, defendant got out of the Neon and fired a gunshot at Martinez. Nolen described the gun defendant used as a sawed-off shotgun. Nolen told Cardenas that after defendant fired the gun, defendant got back in the car and they drove to a school where defendant threw the gun into a nearby dumpster.
Kurt McPhetridge, a police corporal for the City of Tulare, testified as a gang expert. Based on a number of factors he described in his testimony, Corporal McPhetridge opined that defendant and Hutchinson were members of a Crip gang called the 209 Mob, and that Nolen was an associate of the gang. Uranga was an associate of a different gang called East Side Tula, which is a Norteno gang. Considering a hypothetical based on the facts of the case, Corporal McPhetridge opined that the crime was committed for the benefit of defendant’s gang.
The defense presented witnesses who testified regarding defendant’s character and reputation for nonviolence.
DISCUSSION
I. Substantial evidence of premeditated attempted murder
Defendant contends there was insufficient evidence that he acted with premeditation and deliberation to support his conviction for attempted murder. Instead, defendant asserts, “the shooting appeared to be an impulsive act of violence, triggered by an argument at the stoplight.”
In evaluating the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably justify the trier of fact’s findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
Deliberation and premeditation require a level of reflection greater than that required merely to form the intent to kill. (People v. Anderson (1968) 70 Cal.2d 15, 26.) To establish deliberation and premeditation, the intent to kill must be formed upon a preexisting reflection and result from careful thought and weighing of considerations. (Ibid.) Planning, motive, and an exacting method of attack are factors which can assist in the determination of deliberation and premeditation; however, these factors are not a prerequisite to a deliberation and premeditation finding, nor are they exclusive. (People v. Perez (1992) 2 Cal.4th 1117, 1125.) Deliberation and premeditation can occur in a brief period of time. (Id. at p. 1127.) “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly … [distinguishing] those homicides … which are the result of mere unconsidered or rash impulse hastily executed.” (People v. Thomas (1945) 25 Cal.2d 880, 900-901.) Even a senseless, random homicide or attempted homicide can be deliberate and premeditated. (See People v. Thomas, supra, 2 Cal.4th at p. 519.)
The record shows that defendant and his companions followed Martinez’s car after it left the gas station, which can support an inference that defendant engaged in planning activity. When Martinez lowered his car window, he was met with a volley of gang-related name-calling, indicating defendant had a motive to attack Martinez. When the cars were stopped at a red light, defendant deliberately got out, aimed a gun over the roof of the car, and shot Martinez in the vulnerable upper body region, which supports an inference that defendant was attacking him in a calculated manner, and his conduct was not simply “a sudden, random explosion of violence” as defendant urges. After the shooting, defendant got back into the car, fled the area, and disposed of the gun in a dumpster near a school. This latter conduct likewise supports a finding of reflection rather than unconsidered, rash conduct.
Given this evidence showing reflection, the fact that the attack occurred quickly or that the gang expert described the circumstances as “a crime of opportunity” did not require the jury to find there was no deliberation and premeditation. The fact that defendant did not attack Martinez during the initial encounter at the gas station but later did so in a directed, nonaccidental manner, can support an inference of deliberation and premeditation rather than the contrary inference urged by defendant. We are satisfied the record supports the premeditated attempted murder verdict.
II. Substantial evidence of assault with a deadly weapon
In counts 5 and 6, defendant was convicted of assault with a deadly weapon upon the children in Martinez’s car. Defendant argues there was insufficient evidence to support his convictions on these counts because there was no evidence he actually knew the children were in the back seat when he fired his gun into the vehicle.
Defendant’s argument is based on People v. Williams (2001) 26 Cal.4th 779, where the California Supreme Court sought to clarify the mental state required for assault. (Id. at p. 782.) The court held that “assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. 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, italics added.) Since under Williams a subjective awareness of the risk is not required, “a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery.” (Id. at p. 788, fn. 3.)
Here, there was substantial evidence from which the jury could infer that defendant had actual knowledge of facts sufficient to establish his act would probably and directly result in a battery on the children. Arzola and Martinez both testified that during Martinez’s verbal exchange with the occupants of the Neon, Martinez yelled that he had his family with him. Arzola was seated in the back seat with the two children. A reasonable person would know that shooting into a vehicle would directly, naturally, and probably result in injury to its occupants. In light of the facts of Martinez yelling he had his family with him, the close proximity of the vehicles, and the seating arrangement of the occupants of Martinez’s vehicle (i.e., Martinez in the in the front seat with the other three members of his family in the back seat), we cannot conclude that there is no hypothesis whatsoever upon which a jury could have found that defendant had actual knowledge of facts sufficient to establish his act would probably and directly result in the application of physical force against the victims. (People v. Howington (1991) 233 Cal.App.3d 1052, 1057 [before judgment may be set aside for insufficient evidence, it must clearly be shown that upon no hypothesis whatever is there substantial evidence.].)
III. Rejection of defendant’s proposed instruction
Assuming there was sufficient evidence to support counts 5 and 6, defendant contends the trial court erred in refusing to give a proposed defense instruction which would have told the jury the following:
“In order for a defendant to be convicted of Assault with a Firearm or Shooting at an Occupied Motor Vehicle, you must find that he willfully and unlawfully committed the act. You must additionally find that the defendant actually knew of the presence of the person assaulted or shot at, not simply that he should have known that such person was there.”
Instead, the court instructed the jury with CALCRIM No. 875, in part, as follows:
“The defendant is charged in Counts 3, 4, 5 and 6 with assault with a firearm. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person; and, [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] 4. When the defendant acted, he had the present ability to apply force with a firearm to a person; [¶] AND [¶] 5. The defendant did not act in self-defense/or in defense of someone else.”
Defendant does not explain why it was error for the trial court to reject his proposed instruction in the first instance. Nor does he assert that CALCRIM No. 875 is in any way incorrect. Indeed, it appears that CALCRIM No. 875 accurately instructed the jury in the applicable substantive law of assault with a deadly weapon. Consistent with the principles articulated in People v. Williams, supra, 26 Cal.4th 779, on which defendant relies, CALCRIM No. 875 advised the jury that the elements the People were required to prove to establish defendant’s guilt of assault with a deadly weapon included that (a) defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person, (b) defendant did that act willfully, and (c) when defendant acted, he was aware of facts that would lead a reasonable person to realize his act, by its nature, would directly and probably result in the application of force to another.
The focus of defendant’s argument on appeal is not the trial court’s refusal to give the proposed instruction. Rather, the focus of his argument is on the court’s response to a question from the jury during deliberations. Specifically, the jury sent a note to the court asking, “Must the defendant have knowledge of the children in the car to be guilty of the charge assault with a firearm in Count 5 and 6?” Following a discussion outside the presence of the jury, in which defense counsel urged the court to answer the question in the affirmative, alluding to the rejected jury instruction, the court answered the jury’s question as follows:
“The court’s response to your question is not necessarily. Assault requires actual knowledge of those facts sufficient to establish that the offending act by its nature would probably and directly result in injury to another. [¶] Another means the alleged victim as to the count at issue, and I will leave this for the response.…”
Defendant contends that the trial court’s response to the jury’s question violated his right to due process because it lessened the burden of proof. According to defendant, the court’s response “Not necessarily” combined with its restatement of the instruction already given, impermissibly permitted the jury to convict him based on facts he should have known, rather than on facts of which he had actual knowledge. This contention is without merit. To establish a due-process violation, defendant must show “‘a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72.)
On this record, we find no reasonable likelihood the jury construed the court’s response in the manner defendant suggests. As noted, CALCRIM No. 875 was a correct statement of law. In response to the jury’s question as to whether defendant was required to know that the children were present, the court told the jury, in language nearly identical to that used by our Supreme Court in Williams, that assault required actual knowledge of the facts sufficient to establish that the offending act by its nature would probably and directly result in injury to another. (People v. Williams, supra, 26 Cal.4th at p. 790.) The court further clarified that “another” referred to the victim of the particular count at issue; i.e., the children. Thus, the court effectively told the jury that in order to have the requisite mental state to convict defendant of assaulting the children, he had to have actual knowledge of facts that his act would likely result in a battery on the children. We fail to see how the jury could have interpreted the court’s response to its question as meaning it could convict defendant based on facts defendant should have known but did not actually know.
On the other hand, a simple affirmative answer to the question or an answer in the language of defendant’s proposed instruction could have been misleading to the jury by implying that the jury had to find that defendant had to have firsthand knowledge of the children’s presence (e.g., through direct visual observation). Whereas, the mental state showing discussed in Williams is more nuanced, and does not suggest that such knowledge is required. Rather, the test is whether the defendant was actually aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to the children. As discussed above, a number of circumstances could support such a finding in the instant case.
IV. Imposition of multiple gang enhancements
In sentencing defendant, the trial court imposed one consecutive gang enhancement on count 4, and two concurrent gang enhancements on counts 5 and 6. Defendant contends the imposition of multiple gang enhancements violated section 654’s proscription against multiple punishment.
The contention raised by defendant was rejected in People v. Akins (1997) 56 Cal.App.4th 331 (Akins), with which we are in accord. In Akins, the defendant committed on the same night residential robberies of two different people at two different residences, both for the benefit of a gang. The defendant argued the two robberies were part of a continuous course of conduct unified by the single intent to benefit the gang. The court rejected this argument, and not only because the two robberies were at different times and places. In addition, the court reasoned that acts of violence against separate victims may be separately punished notwithstanding section 654. Since the violent crimes against separate individuals could be separately punished, applying the gang enhancement to each would not violate the policy of section 654. Indeed, failure to impose the enhancement as to each violent crime against separate individuals would violate the policy of section 654 to insure that punishment is commensurate with culpability and would also violate the Legislature’s clear intent to combat gang activity by enhancing the penalties for crimes committed for the benefit of a gang. (People v. Akins, supra, 56 Cal.App.4th at pp. 339-341.)
Under Akins, since section 654 permits separate punishment for the crimes committed against the three separate victims, it permits imposition of three separate gang enhancements under section 186.22, subdivision (b)(1). The trial court therefore did not err in imposing the three gang enhancements.
V. Lesser firearm enhancements
Finally, defendant contends that the lesser firearm use enhancements (§ 12022.5, subd. (a)(1)) in counts 1 and 2 must be stricken. However, as the People point out, the enhancements do not appear in the abstract of judgment and the abstract of judgment specifically states that stricken enhancements are not to be listed. Therefore, we agree with the People that defendant’s contention is of no consequence. Defendant does not revisit this contention in his reply brief.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., CORNELL, J.