Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. RIF129735, Ronald L. Taylor, Judge.
HALLER, J.
Steven Hernandez appeals from a judgment convicting him of various offenses arising from his shooting a gun at an occupied vehicle and, in a separate incident, his assaults with a gun at a residence. He contends the judgment must be reversed based on (1) references at trial to his post-Miranda silence, and (2) the use of his prior convictions for impeachment. We reject these contentions of reversible error and affirm the judgment as to the convictions.
Miranda v. Arizona (1966) 384 U.S. 436.
As to his sentence, Hernandez argues the trial court should have stayed two of his sentences under Penal Code section 654. He contends the section 654 stay requirement must be applied to (1) one of two convictions for firearm possession by a felon, and (2) a burglary conviction as incidental to an assault conviction. We agree with his first contention, and reject the second.
Subsequent unspecified statutory references are to the Penal Code.
Hernandez also asserts the case should be remanded for resentencing because the court did not recognize its discretion to select concurrent sentences under the Three Strikes law. We agree. Although the court properly imposed a mandatory consecutive sentence with respect to the distinct incidents occurring at the car and at the residence, the record indicates the court failed to recognize that it could impose concurrent terms with respect to the various offenses committed during each incident. Accordingly, we reverse the judgment as to the sentence and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The two incidents giving rise to the charged offenses occurred three days apart in April 2006. The first incident involved Hernandez's shooting at a car occupied by Irma Franco, and the second incident involved his assaults with a gun at the home of Savino Mendez. At trial, Hernandez testified on his own behalf. He did not dispute that he was present during both incidents, but claimed he did not use a gun during the Franco incident and that he used a toy gun during the Mendez incident.
The Franco Car Incident
The Franco incident occurred on April 1, 2006, at about 6:30 p.m. Franco was in a car with her two children, and Hernandez was in a car with his wife and one or two of his children. Franco testified that Hernandez suddenly pulled out from a cross street in front of her vehicle, causing her to almost hit his vehicle. Franco slammed on her brakes and honked her horn. Hernandez continued driving, but after several feet he slammed on his brakes in front of Franco's car, again causing her to almost hit his vehicle. He repeated this maneuver a second time. He then stopped his car in the middle of the road, and he and his wife got out of the car and started yelling at Franco. Franco recognized Hernandez from the neighborhood, although she did not know him.
Hernandez moved towards Franco's car and threw what appeared to be a container of beer at her car, hitting the hood and windshield. The container spilled a bubbly liquid over her windshield. When the liquid cleared, Franco (feeling frightened) quickly turned her car around to drive away. While she was doing this, Franco saw Hernandez go back and bend down into his car. As she was driving away, she looked in her rearview mirror, saw Hernandez standing with his arm extended in the direction of her vehicle, and heard something hit the back passenger's side of her car.
That evening Franco notified the police about the incident, but at the time she did not know what had hit the back of her car. The next morning she and her husband inspected the back of her car and found a bullet stuck in the right side of the bumper. They pulled the bullet out of the bumper and observed a hole in the bumper caused by the bullet. Franco's husband went looking for Hernandez's car, and after he spotted it he provided the police with the license plate number.
After receiving a report from Franco that her car had been shot at, the police took custody of the bullet that Franco found, and observed and photographed what appeared to be a matching gunshot hole in the right rear bumper of her car.
Hernandez's 11-year-old son (G.) was with his father and mother during the Franco incident. Detective Mike Medici questioned G. at his paternal grandmother's home. G. told Medici that the driver of the other car scared them by getting very close to the back of their car. In response to this, his father got out of the car, reached back into the car, and picked up a toy gun. G. "heard it go off, but didn't see him shoot it." During the interview, Hernandez's mother retrieved a toy gun from the house and gave it to Medici. Medici testified that the toy gun was an "air soft gun" that shoots plastic "yellow peas, " and that it does not sound like a real gun.
At trial, G. (who was called to testify by the prosecution) testified that his father did not have a gun during the incident. G. denied that he told the officer that his father pulled out a toy gun and that he heard the gun "go off."
The Mendez House Incident
At about 9:40 p.m. on April 4, 2006, Hernandez went to the Mendez residence because Hernandez's son had told him some people at the residence had made rude gestures to him and his sister when they were walking by the home. Mendez's wife (Concepcion) responded to Hernandez's knock at the door. Hernandez asked for her husband. Concepcion inquired why, told him her husband was not there, and tried to close the door. Hernandez became angry and pushed the door open. Frightened, Concepcion ran to call her husband, who was in the backyard with two other men (Ernie and Adrian).
Mendez came to the back door of his house, and saw Hernandez standing at the front door with one foot inside the house. As Mendez walked through the back door, Hernandez started walking backwards on the front porch. Hernandez had one hand in his pants' pocket; his pocket had a bulge in it that looked like it could be a weapon; and he was gesturing and saying for Mendez to come to him. Mendez walked to the front door, about three or four feet away from Hernandez, and asked Hernandez what he was doing there. Hernandez started walking backwards and told Mendez to come outside. Mendez did not comply, and asked Hernandez why should he go outside. Hernandez, who looked angry, started pulling a gun out of his pocket.
Ernie and Adrian then came around to the front from the side area outside the house, asking what was going on and saying that Hernandez was scaring the family. Hernandez pulled the gun all the way out of his pocket, moved closer to Mendez, and (from a distance of about five feet) pointed it at Mendez. As Ernie came closer, Hernandez pointed the gun at Ernie's head. Mendez ran down the hallway and into his bedroom, looking for something to use in defense. When he came back out, Hernandez was already gone.
Meanwhile, other family members were running chaotically around the house and screaming. Mendez's 18-year-old daughter (Karla Cervantes), who had been in her bedroom, heard her mother screaming to call the police. Cervantes came out of her bedroom and was in the hallway with her sister and her mother. Cervantes saw her father running in the hallway towards his bedroom, and saw Hernandez standing inside the house (in the living room at the entrance to the hallway) pointing a gun at her father. Cervantes's 12-year-old sister was standing facing Hernandez, so Cervantes walked in front of her and pushed her down the hallway towards their mother so she would be out of the way. Ernie, who had entered the house, talked to Hernandez, asking him what his problem was. Hernandez and Ernie went outside and talked by Hernandez's car; Hernandez then left. Cervantes also went outside, memorized Hernandez's license plate number, and later provided the number to the police.
Mendez, Cervantes, and Cervantes's younger sister were separately shown the toy gun provided to the police by Hernandez's mother. They all stated the toy gun did not look like the gun that Hernandez used at their home.
Mendez testified that he could not tell whether the gun used by Hernandez at his home was real because he only saw the tip of the gun. Concepcion testified she did not see the gun, and Ernie (who was in jail) and Adrian (who was in Mexico) were not called as witnesses.
Defense
Testifying on his own behalf, Hernandez gave his version of what occurred during the Franco and Mendez incidents.
Regarding the Franco car incident, Hernandez testified that he noticed in his rearview mirror that Franco's vehicle was approaching him at a fast speed. He pulled over to the side of the road and waved his hand out the window to signal for her to pass him. She pulled over and parked about three to five feet behind him. He drove back onto the road, and she again followed close behind him. He pulled over two more times, always followed by her vehicle, and on the third time he got out of his car. Frustrated and upset, he retrieved an unopened beer can from his car and threw it at Franco's vehicle, hitting its hood.
He then started walking towards Franco's vehicle because he felt his family was threatened. Franco started moving her vehicle in reverse. His wife and his son got out of the car. His wife yelled at their son to get back in the car, and he scolded his son and helped him get back in the car. When Hernandez saw Franco's vehicle pull into a driveway, he got back in his car. As he was driving away, he saw Franco's vehicle driving in the opposite direction away from him. Hernandez testified that he did not have a gun and he did not shoot at Franco's vehicle.
Regarding the incident at the Mendez residence, Hernandez testified that his children told him a man at the residence had made lewd gestures to them as they walked by the house. He drove to the residence to talk about this. He brought a toy gun in his jacket pocket to protect himself because he had seen "a lot of traffic" coming from the residence. When a woman responded to his knock at the front door, he asked to talk to "the gentleman of the house." The woman told him the man was not there. Hernandez responded that he had seen the man enter the front gate a couple of minutes earlier, and that he really needed to talk to him. He saw the woman speak to someone through a window in the rear of the house, and then a man (Mendez) entered the home and walked up to the front door.
Hernandez asked Mendez to come outside and talk to him, but Mendez refused. Two men came around from the side of the house, approaching Hernandez at a fast pace and acting "pretty aggressive." Frightened and feeling that the men were going to "jump" him, Hernandez pulled out the toy gun to warn them, holding the gun down at his side. The men stated aggressively, " 'What's up? What's going on?' " Hernandez told them to "hold it up right there." Hernandez saw Mendez inside the house go "deeper into the house" and he feared Mendez was going to get a gun or other weapon. Hernandez walked quickly to his vehicle and threw the toy gun on the front passenger seat. One of the men followed him and asked what was wrong. Hernandez responded that the "whole situation turned kind of bad" and the issue he wanted to talk about could be discussed another day. Hernandez then left in his car. He testified that he did not point the toy gun at anyone and never entered the house.
Trial References to Hernandez's Post-Miranda Silence
After Hernandez was arrested, he waived his Miranda rights and agreed to speak to the police. During the interview, he gave the police his version of what occurred during the Mendez house incident, but declined to answer almost all questions about the Franco car incident. At trial, the prosecutor cross-examined Hernandez, and called a police detective to testify as a rebuttal witness, about Hernandez's refusal to talk to the police about the Franco incident. The prosecutor argued to the jury that during the police interview Hernandez had been silent about the Franco incident because, contrary to his trial testimony, he knew the incident involved a gun, not just a beer can.
In our discussion below, we set forth more information about Hernandez's interview with the police and the prosecutor's use of his silence to draw adverse inferences at trial.
Jury Verdicts and Sentence
Regarding the Franco incident, the jury found Hernandez guilty of assault with a firearm, firearm possession by a felon, and discharge of a firearm at an occupied vehicle. Regarding the Mendez incident, the jury found him guilty of two counts of assault with a firearm (against Ernie and Mendez), firearm possession by a felon, and residential burglary. Hernandez waived a jury trial on prior conviction allegations, and the trial court found true allegations of three prior convictions that qualified as serious felony priors and strike priors. The court sentenced him to a term of 175 years to life, plus a determinate term of 15 years. The sentence consisted of a consecutive, 25-years-to-life term for each of the seven current felony convictions under the Three Strikes law, and an additional 15-year determinate term for the three prior serious felony convictions.
DISCUSSION
I. Ineffective Assistance of Counsel Based on Evidence of Post-Miranda Silence
Hernandez asserts that his counsel provided ineffective representation by introducing, and failing to object to, evidence of his post-Miranda silence.
A. Background
Hernandez's Police Interview
After he was arrested, Hernandez was questioned by Detectives Medici and Jim Brandt in a recorded interview. The detectives advised him of his Miranda rights, and Hernandez stated he was willing to talk to them "up to a certain extent." The detectives stated they wanted to start with the incident at the Mendez residence. Hernandez recounted his version of what occurred at the house, claiming he never entered the residence and did not have a gun. Later during the interview, after the officers told him that he would not be charged with a gun allegation if he had a toy gun rather than a real gun, he stated that he had a toy gun at the Mendez residence.
During the questioning about the Mendez incident, the detectives brought up the subject of the Franco car incident. The detectives stated that Hernandez and his car had been identified in the incident, and it appeared to be a relatively minor "road rage" incident, involving him throwing a beer can at a car, but they needed to know if he was drinking and "running amok." Hernandez responded, "No, I'm not running amok, but... [¶]... [¶]... if... this is irrelevant, I'd just rather stick to that... what we're talking about...." The detectives told Hernandez that the car incident was relevant because they needed to know if Hernandez intended "to hurt a person." Hernandez answered, "I'm not intending to hurt anybody, Detective...." The detectives explained that the car incident was viewed as an assault. Hernandez inquired, "So, ... you're going to book me on this?" Medici stated the house incident was the "biggest problem, " but he wanted to talk to him about both incidents. Hernandez said, "See I really don't have nothing to say about this [car] incident right here.... [¶]... [¶] But I'm speaking straight to you about what was going on about that [house incident]." The detectives asked Hernandez if he was saying he did not know why the car incident happened, or if he was saying that the car incident did not happen at all. Hernandez stated, "I'd rather not speak on that, though. [¶]... [¶] 'Cause I don't know. I don't know, you know, what's going on with that."
As the interview continued, the detectives asked more questions about the house incident, and also continued to probe about the car incident. The detectives explained that the car incident did not have to be a felony if he merely threw the beer can at the car and did not mean to hurt anyone; however, if he was telling them that he did not want to talk about the incident, they had to respect that. The detectives also told Hernandez they knew his son was with him during the car incident, and they did not want to have to question his son about it. Hernandez asked what he was being booked for, and the detectives told him assault with a deadly weapon, but reiterated that there was a difference if he just threw the can at the car. Hernandez asked, "Okay, how is this an assault?" The detectives told him that the woman stated he threw the can at her, and this was the version of the facts they had received. Hernandez then stated, "I didn't throw no beer at no woman. [¶]... [¶] Okay, I haven't threw no beer bottles, cans at no woman, I'll just tell you that. Or anybody." The detectives asked Hernandez to tell them about the incident, because there was no question he threw the can, and the only question was whether he threw it at the car or at the woman. At this point Hernandez stated, "I don't want to talk about that case."
The detectives told Hernandez that his wife (who was on parole) would be charged with a parole violation because she was with him during the car incident. Hernandez responded that the police did not know if he or his wife was there. The detectives stated they had his license plate number and descriptions of him, his wife, and his son. The detectives again asked Hernandez to tell them about the car incident, and Hernandez responded, "I'd rather not talk about it.... [¶] I don't want to talk about that." Responding to the detectives' suggestions that Hernandez was not being honest during the interview, Hernandez stated he was not lying about the car incident because he told them he did not want to talk about it. The detectives reiterated that they had to book him for assault with a deadly weapon because they only had the woman's side of the story, and that there was a difference between vandalism and assault. Hernandez stated that he understood this, and stated, "I don't have nothing to say about that...."
At one point, the detectives summed up the interview so far, stating that Hernandez was not denying being at the incident with the female in a car, but that he did not want to talk about throwing the beer can at the car. Hernandez responded, "No, I didn't say that I was there." When the detectives asked if he was saying he was not there, Hernandez stated, "I'd rather not talk about it." At several other points during the interview when the detectives encouraged him to make statements about the car incident, he repeated this refusal, stating "I don't have nothing to say about that other case"; "I don't want to talk about that beer incident with that woman"; "I don't want to talk about that issue"; "I just don't want to talk about that"; "I just... rather not talk about... that case at all you know. I just... don't want to talk about that... thing"; and "I don't really care to... discuss about that."
As the interview was winding up, Hernandez asked the detectives if they could try to see that he gets booked less harshly because he was honest with them about the house incident. The detectives responded that from their perspective Hernandez was just trying to protect himself because he was disclosing some information about the house incident thinking they would understand that he was just trying to protect his children, whereas he was "remaining silent" on the car incident because he knew he "screwed up on" that incident. Hernandez then asked, "What... if I say that was me and... I say that... I threw a can with not an intent to hit that girl, but at the car...." The detectives explained that they would put whatever he said in their report and that it would be reviewed by the district attorney. The detectives stated that they believed he got angry and threw the beer can at the car. Hernandez responded, "I don't even know the story. Well, ... was she driving the car?" The detectives stated, "You know the story. [¶]... [¶] [b]ecause you were there." Hernandez stated, "But... did she tell you she was dri-in the car or...." The detectives stated they spoke to the woman in detail; they saw a "little mark" on the car; they thought Hernandez got mad and threw the can at the car; however the woman was alleging he purposely tried to hit her with the can. Hernandez stated, "I told you exactly what happened at that house and I don't really feel like talking about that. I don't even know what's, um...."
The police tape also includes a conversation between Hernandez and his wife (Gabriela) that was recorded after the detectives finished the interview and allowed Hernandez to speak with Gabriela alone. Hernandez told Gabriela that the detectives brought up an incident about him throwing a beer can at a woman but he did not know what they were talking about and he did not remember that. Gabriela also stated she did not know anything about it.
References to the Police Interview at Trial
At trial, the prosecutor did not introduce evidence of Hernandez's interview with the police during its case-in-chief. Prior to the defense case, defense counsel informed the court that Hernandez would be testifying against the advice of counsel, and that he had advised Hernandez that the police interview could be admitted into evidence and affect his credibility. The transcript and tapes of the recorded interview were thereafter admitted into evidence, and Hernandez was questioned about the interview during his testimony.
Defense counsel, apparently anticipating the prosecutor's intent to impeach Hernandez based on the police interview, elicited Hernandez's testimony that the police asked him about the Franco incident but he did not want to discuss the incident with them. As expected, on cross-examination the prosecutor questioned Hernandez about the fact that when the police gave him an opportunity to explain what happened during the Franco incident, he did not tell them that Franco tried to run him down but rather repeatedly stated he did not want to talk about the incident.
The prosecutor also cross-examined Hernandez about other statements he made during and after the interview, including his statements to the police that he did not throw a beer can at anyone and the police did not know if he was the person involved in the Franco incident, and his statement to his wife that he did not know about or remember the Franco incident.
Additionally, during the prosecution's rebuttal case, Detective Medici testified on direct examination that during the interview he was trying to get Hernandez to admit he was involved in the Franco incident by downplaying its significance and not telling him that a bullet had been found in the bumper of Franco's car. When the prosecutor asked Medici if Hernandez admitted he was involved in the Franco incident, Medici responded, "He didn't want to go there at all." Medici also testified that Hernandez would not "talk about [the Franco incident] at all."
In closing arguments to the jury, the prosecutor cited Hernandez's decision to remain silent during the police interview about the Franco incident, and argued that if the Franco incident had merely involved a beer can Hernandez would have been willing to discuss it with the police. The prosecutor asserted to the jury that Hernandez did not want to discuss the Franco incident with the police because he knew he had shot at Franco.
B. Analysis
Hernandez asserts that when he told the detectives he did not want to talk about the Franco car incident, he was invoking his constitutional right to remain silent. Accordingly, he contends his counsel provided ineffective representation by introducing, and failing to object to, the references at trial to his post-Miranda silence. The Attorney General asserts Hernandez did not invoke his right to remain silent during the police interview, and alternatively the error was harmless.
Hernandez recognizes that because defense counsel did not object to the references to his post-Miranda silence, this claim of error has not been preserved for appellate review. (People v. Rundle (2008) 43 Cal.4th 76, 116, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118.) However, his claim that defense counsel provided ineffective representation is cognizable on appeal, and we consider his arguments in that context. (Coffman and Marlow, supra, at pp. 118-119.) To prevail on a claim of ineffective representation, the defendant must show that counsel's conduct fell below an objective standard of reasonableness, that there could be no rational tactical purpose for counsel's conduct, and that there was prejudice from counsel's conduct. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1008.) If the defendant does not carry his or her burden to show prejudice, we may reject the incompetency claim without determining whether counsel's performance was deficient. (Id. at p. 1008.)
For reasons we shall explain, we conclude that although Hernandez made some general statements to the police in response to their questions about the Franco incident, he clearly and unequivocally invoked his right to remain silent about that subject. At trial, the prosecutor was free to reference the statements he made when responding to the questions about the Franco incident, but the prosecutor was not entitled to urge the jury to draw inferences against him based on his assertions of his right to remain silent. Assuming, arguendo, defense counsel had no reasonable tactical basis for not objecting to the evidence, we conclude the error was not prejudicial.
Invocation of Right to Remain Silent
The Fifth Amendment privilege against self-incrimination requires that the prosecution produce evidence against a defendant "by its own independent labors, rather than by the cruel, simple expedient of compelling it from [the defendant's] own mouth." (Miranda v. Arizona, supra, 384 U.S. at p. 460.) Thus, a defendant has the right to stand mute and need not provide the police with any information. (Id. at pp. 467-468 & fn. 37.) To protect this constitutional privilege, the Miranda rule requires that the defendant be advised of, and waive, the right to remain silent before the police may question the defendant during a custodial interrogation. (Berghuis v. Thompkins (2010) ___U.S.___; 2010 U.S.Lexis 4379; People v. Rundle, supra, 43 Cal.4th at p. 114; People v. Stitely (2005) 35 Cal.4th 514, 535.)
In Doyle v. Ohio (1976) 426 U.S. 610, 611, 619, the court held that a defendant's silence after receiving Miranda warnings may not be used for impeachment at trial based on the defendant's failure to tell his or her exculpatory story at the time of arrest. The Doyle rule is premised on the recognition that it is fundamentally unfair to use post-Miranda silence against the defendant at trial given that Miranda warnings implicitly assure that exercise of the right to silence will not be penalized. (People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 65, 118.) Thus, a defendant's invocation of the right to remain silent cannot be admitted into evidence or commented upon at trial. (Id. at p. 118; People v. Evans (1994) 25 Cal.App.4th 358, 368.)
Even if a defendant waives his Miranda rights and agrees to speak with the police, the defendant may later revoke the waiver. (People v. Rundle, supra, 43 Cal.4th at p. 114.) The defendant is permitted to "control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation." (Michigan v. Mosley (1975) 423 U.S. 96, 103-104.) However, to invoke the right to remain silent after it has been waived, the defendant must unambiguously assert the right. (People v. Rundle, supra, 43 Cal.4th at p. 114; see Berghuis v. Thompkins, supra, 2010 U.S.Lexis 4379 [invocation of right to remain silent must be unambiguous].)
On appeal, we independently review whether a defendant has invoked the right to silence. (People v. Rundle, supra, 43 Cal.4th at p. 115.) We apply an objective test, considering all the circumstances and construing the defendant's words in context. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238; see People v. Stitely, supra, 35 Cal.4th at p. 535.)
Preliminarily, we note that Hernandez does not contend that his statements that he did not want to talk about the Franco incident were an invocation of his right to remain silent for purposes of requiring the detectives to cease questioning him about the incident. Rather, he asserts that the adverse use at trial of his refusal to answer questions about the Franco incident was a violation of his constitutional right to remain silent. Accordingly, we are not concerned with any trial references to the statements he made about the incident. Instead, our focus concerns trial references to the fact that he did not want to talk about the Franco incident and whether the prosecutor was permitted to use his silence to draw an adverse inference against him, i.e., urging the jury to find that his refusal to talk supported the prosecutor's claim that the incident involved a gun, not merely a beer can.
The police do not need to end an interrogation merely because a defendant has refused to answer some questions while evincing an intent to continue with the interview, or when the defendant makes an ambiguous or equivocal statement concerning the willingness to continue talking. (See Berghuis v. Thompkins, supra, 2010 U.S.Lexis 4379; People v. Michaels (2002) 28 Cal.4th 486, 510; People v. Rundle, supra, 43 Cal.4th at p. 115.) Here, it is apparent that Hernandez was hoping that based on his cooperation with the detectives, they would recommend reduced charges to the district attorney for both the Mendez and Franco incidents. Notwithstanding his statements that he did not want to talk about the Franco incident, he responded to some of the detectives' questions about the incident, stating he was not drinking and running amok, he was not intending to hurt anyone, he did not throw a beer can at anyone, the police did not know if he and his wife were involved in the incident, and he was not admitting he was involved. Further, he asked the detectives what he was being booked for and to explain why the conduct was an assault, inquired about what would happen if he admitted he was involved but said he merely threw the can at the car, and requested specifics about how the victim described the incident. Thus, he appeared willing to talk to the detectives about the Franco incident to the extent he assessed it might assist him in his endeavor to obtain leniency in the charges. Under these circumstances, an officer could reasonably conclude that even though he was stating he did not want to talk about the Franco incident, he was not unambiguously asserting his constitutional right to stop the questioning about the incident. (See People v. Stitely, supra, 35 Cal.4th at p. 535; People v. Musselwhite, supra, 17 Cal.4th at pp. 1239-1240; People v. Michaels, supra, 28 Cal.4th at pp. 510-511; People v. Silva (1988) 45 Cal.3d 604, 629-630.)
When a defendant agrees to talk to the police about some (but not all) matters, the circumstances of the case must be examined in their entirety to determine whether the defendant's refusal to speak constituted a clear, unequivocal assertion of the right to remain silent.
When making this evaluation, the courts have found a defendant does not invoke the constitutional right to remain silent when he or she freely talks about a matter and then simply refuses to answer a particular question about the matter, unless there are circumstances reflecting an affirmative revocation of the earlier Miranda waiver. (Compare People v. Hurd (1998) 62 Cal.App.4th 1084, 1092-1094 [no invocation of right to silence when defendant freely discussed shooting with police (claiming it to be accidental) but refused to demonstrate how shooting occurred, under circumstances showing no inducement from Miranda warning to remain silent] with United States v. Harrold (10th Cir. 1986) 796 F.2d 1275, 1278-1280, & fn. 3 [prosecutor could not reference defendant's explicit assertion of right to silence about some questions]; see also People v. Poon (1981) 125 Cal.App.3d 55, 84-85 [defendant who freely gave his version of incident may be impeached with omission of critical fact disclosed for first time at trial]; United States v. Lorenzo (9th Cir. 1978) 570 F.2d 294, 296-298 [prosecutor may present defendant's failure to respond to officer's accusatory question when defendant never revoked earlier waiver of right to remain silent].)
Disapproved on other grounds in People v. Lopez (1998) 19 Cal.4th 282, 292.
In contrast, when the defendant agrees to speak about only one distinct subject matter, or when the defendant completely cuts off continued questioning about a matter, these circumstances have been found to reflect an invocation of the right to remain silent. (See United States v. Soliz (9th Cir. 1997) 129 F.3d 499, 503-504 [defendant who agreed to talk about only one subject invoked right to remain silent on second subject; admissions about second subject were inadmissible]; United States v. Caruto (9th Cir. 2008) 532 F.3d 822, 827-831 [defendant who gave brief statement, but then cut interrogation short by refusing to answer further questions, could not be impeached with omissions from statement]; see also Berghuis v. Thompkins, supra, 2010 U.S.Lexis 4379 [right to remain silent invoked if defendant affirmatively stated "that he wanted to remain silent or that he did not want to talk with the police"].)
Disapproved on other grounds in United States v. Johnson (9th Cir. 2001) 256 F.3d 895, 913, fn. 4.
Here, Hernandez's repeated statements that he did not want to talk about the Franco incident reflect a clear, unequivocal exercise of his right to remain silent about his version of the incident. He did not merely refuse or fail to respond to a question concerning an incident that he was otherwise freely discussing. Rather, he refused to even admit or deny he was involved in the Franco incident and affirmatively and repeatedly stated he did not want to talk about the incident. The detectives' comments to Hernandez after he told them he did not want to talk about the incident also reflect the constitutional basis for his refusal to speak; i.e., the detectives suggested that they thought it was to his benefit to give his version of what occurred, but stated they had to respect his right not to talk about it. Further, the fact that he voluntarily discussed the Mendez incident did not suggest he was waiving his right not to provide information about the entirely distinct Franco incident.
Under these circumstances, we conclude Hernandez exercised his constitutional right to remain silent about the Franco incident. Accordingly, at trial, he was entitled to keep from the jury any references to his refusal to discuss the incident with the detectives. The prosecutor's use of his refusal to talk about the incident to support an inference that he used a gun during the incident penalized him for exercising his right to remain silent.
We note that in People v. Coffman and Marlow, supra, 34 Cal.4th at pages 118-119, the California Supreme Court observed that, when deciding the propriety of trial use of post-Miranda silence, the Hurd court formulated a broad standard that a defendant " 'has no right to remain silent selectively[, ]' " whereas some federal courts have stated that a defendant's selective refusals to speak are shielded from use at trial if the defendant relied on a Miranda warning. The Coffman court did not delve further into this issue, but merely concluded it did not need to decide whether there was an improper comment on the defendant's refusal to speak about one matter (while agreeing to speak about another matter), because any error was harmless. (Coffman, supra, at p. 119.) In Hurd, the court qualified its analysis by recognizing that a selective refusal to speak may be protected from use at trial if there is an "indication that such refusal is an invocation of Miranda rights." (People v. Hurd, supra, 62 Cal.App.4th at p. 1093.) We conclude Hernandez exercised his right to remain silent concerning the Franco incident even under Hurd's analysis; accordingly, we need not evaluate any distinctions between the standard set forth in Hurd as compared to federal cases.
No Prejudice
We need not decide whether defense counsel might have had a rational tactical basis for introducing and failing to object to references to Hernandez's post-Miranda silence, because any error in admission of the information was harmless. At trial, Hernandez admitted his involvement in the Franco incident and admitted he threw a beer can at the car. Although Hernandez denied that he shot a gun, the prosecutor presented evidence showing that a bullet was found in the bumper of Franco's vehicle. Further, Detective Medici testified that Hernandez's son (G.) stated during a police interview that he heard a gun "go off." Even though G. described the gun as a toy gun, the fact that he described hearing it "go off, " coupled with the bullet found in the bumper, creates a compelling inference that Hernandez used a real gun. Further, although at trial G. claimed there was no gun at all, he had a clear incentive to modify his description of the incident given that the defendant was his father.
Based on the convincing strength of the evidence that Hernandez used a gun during the Franco incident, we are satisfied beyond a reasonable doubt that the references to Hernandez's post-Miranda refusal to talk about the incident did not affect the jury's verdict. The error was harmless under any standard of review. (See People v. Huggins (2006) 38 Cal.4th 175, 249 [if defense counsel had preserved federal constitutional error for review, error would be harmless beyond a reasonable doubt; hence claim of ineffective assistance fails because there is no reasonable probability of a different outcome]; see also People v. Coffman and Marlow, supra, 34 Cal.4th at p. 119; People v. Carpenter (1997) 15 Cal.4th 312, 412; compare People v. Mesa, supra, 144 Cal.App.4th at pp. 1007-1010 [reasonable probability of a different outcome standard governs ineffective representation claim even though error concerned violation of federal Constitution].)
II. Use of Prior Offenses for Impeachment
A. Background
Prior to Hernandez's testimony, the court and parties discussed the issue of whether his prior convictions were admissible for impeachment. Arguing in support of their use, the prosecutor delineated Hernandez's criminal history, which included a 1979 assault with a deadly weapon juvenile adjudication, a 1982 petty theft misdemeanor conviction, three robbery with a firearm convictions (one in 1985 in California and two in 1987 in Texas), a 1998 felony driving under the influence conviction, a January 2002 conviction for lying to the police about his name during a traffic stop, and a September 2002 misdemeanor conviction for domestic violence. The prosecutor stated the Texas charges concerned four separate cases, and that Hernandez was allowed to plead to two of the cases. The prosecutor stated she might ask questions about the facts of the domestic violence misdemeanor conviction, which incident occurred in the presence of Hernandez's son and during which Hernandez accused his wife of being a "snitch to the police." The prosecutor argued that the prior offenses were not remote because Hernandez had been incarcerated for many years and he was not crime free for any substantial period during his release.
Defense counsel asserted the trial court should exercise its discretion under Evidence Code section 352 to preclude use of the prior offenses for impeachment because they were more prejudicial than probative.
The trial court ruled that all of the offenses were admissible for impeachment and it would not exclude the evidence under Evidence Code section 352 because the probative value was not substantially outweighed by the potential for prejudice. The court found the evidence was highly relevant because Hernandez's credibility was a central issue at trial, and it would not require an undue consumption of time, would not confuse or mislead the jury, and was not remote in time.
Anticipating the prosecutor's use of Hernandez's prior offenses on cross-examination, defense counsel elicited testimony from Hernandez concerning these offenses. Hernandez testified that he was convicted of assault with a deadly weapon in 1979 when he was a teenager (using his feet as a weapon); he had used a gun to commit a crime on three different occasions (resulting in a 1985 conviction and two 1987 Texas convictions for robbery with a firearm); he was convicted of felony drunk driving in 1998; and he pleaded guilty to a misdemeanor domestic matter arising from an argument with his wife in the presence of their children. He testified the domestic violence incident did not involve him calling his wife a "snitch" but rather was an argument over jealousy; he did not remember lying to a police officer in January 2002 about his real name; and he did not remember a 1982 petty theft crime.
During a discussion with the parties after Hernandez's testimony on direct examination, the court stated in passing that it should have excluded the 1982 petty theft given the admissibility of the robberies with a firearm. However, the court and defense counsel agreed the testimony regarding the petty theft did not have much impact.
On cross-examination, the prosecutor reviewed Hernandez's various convictions, including the 1985 robbery with a gun, the two 1987 robberies with guns in Texas, the felony drunk driving, and the misdemeanor domestic violence. Further, the prosecutor asked Hernandez if, in addition to use of a gun during the 1985 robbery, he used a gun during four distinct robberies in Texas involving different people. Hernandez acknowledged that he was charged with four robberies in Texas, but testified he was allowed to plead guilty to two of them because he was not guilty of the other two. Regarding the domestic violence conviction, the prosecutor asked if his son told the police that he swung a cell phone at his mother, pushed her against a dresser, and hit her in the face and body with closed fists several times. Hernandez denied that he engaged in this conduct, but acknowledged he pleaded guilty to domestic violence.
On appeal, Hernandez raises numerous contentions of error with regard to the use of his prior offenses for impeachment. He contends the trial court abused its discretion in permitting the robbery offenses to be described as involving firearm use. In a related contention, he argues that defense counsel provided ineffective representation by failing to request sanitization to remove the gun use references from the robbery offenses, and failing to request a limiting instruction to prevent the jury from using the prior offenses as propensity evidence. He also argues defense counsel provided incompetent representation when he failed to object to the Texas robbery/gun use charges that did not result in convictions and that were beyond the scope of the court's admissibility ruling. Finally, he asserts the court erred by failing to recognize that some of the prior convictions were for misdemeanors that might have less probative value, and that defense counsel provided ineffective representation by failing to object to the misdemeanor convictions on hearsay grounds
B. Governing Law
Since the 1982 enactment of article 1, section 28 of the California Constitution (Proposition 8), a testifying defendant may be impeached with prior conduct that involves moral turpitude (i.e., a readiness to do evil). (People v. Castro (1985) 38 Cal.3d 301, 306, 313-316; People v. Wheeler (1992) 4 Cal.4th 284, 290-297, & fn. 7.) Impeachment based on prior acts involving moral turpitude is premised on the recognition that "[m]isconduct involving moral turpitude may suggest a willingness to lie." (People v. Wheeler, supra, 4 Cal.4th at p. 295.) Prior to Proposition 8, only felony convictions were available for impeachment; after Proposition 8, any misconduct involving moral turpitude is available for impeachment, subject to the trial court's exercise of its discretion under Evidence Code section 352 to balance probative value against undue prejudice. (People v. Wheeler, supra, 4 Cal.4th at pp. 290-297, & fn. 7.)
Article 1, section 28, subdivision (f) states that any prior felony conviction may be used for impeachment. Article 1, section 28, subdivision (d) states that relevant evidence shall not be excluded in criminal proceedings, subject to several statutory exceptions.
Additionally, prior to Proposition 8, the California Supreme Court had established a "black letter rule of exclusion" for impeachment under which " 'identical prior offenses may not be used; [and] similar prior convictions should be used only sparingly.' " (People v. Foreman (1985) 174 Cal.App.3d 175, 180.) Proposition 8 repudiated this inflexible black letter rule; thus, the fact that a prior conviction is the same or similar to a charged offense does not compel its exclusion, and similarity is only one factor to consider when the court balances relevancy and prejudice. (Id. at pp. 180-182; People v. Tamborrino (1989) 215 Cal.App.3d 575, 590; People v. Green (1995) 34 Cal.App.4th 165, 183.)
When evaluating whether to admit a prior conviction for impeachment, relevant factors to consider include whether the prior conviction reflects adversely on honesty or veracity, the nearness or remoteness of the prior conviction, whether the prior conviction is for the same or similar conduct as the charged offense, and the effect if the defendant does not testify because of fear of impeachment with the prior conviction. (People v. Green, supra, 34 Cal.App.4th at p. 182.) These factors should not be applied rigidly and other relevant circumstances may also be considered. (People v. Collins (1986) 42 Cal.3d 378, 391-392; People v. Foreman, supra, 174 Cal.App.3d at p. 181.)
Although numerous prior convictions involving conduct similar to the charged offense can increase the risk of prejudice and support their exclusion, a trial court may reasonably exercise its discretion to admit numerous similar priors based on such factors as the high probative value of the priors and the need to prevent the defendant from testifying before the jury with a false aura of veracity. (See People v. Muldrow (1988) 202 Cal.App.3d 636, 646-647; People v. Dillingham (1986) 186 Cal.App.3d 688, 695; People v. Green, supra, 34 Cal.App.4th at p. 183; People v. Stewart (1985) 171 Cal.App.3d 59, 66; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1138-1139 [court did not abuse its discretion in permitting impeachment based on prior conviction for assault with a deadly weapon on an officer in case charging attempted murder of officer]; People v. Johnson (1991) 233 Cal.App.3d 425, 459 [no abuse of discretion to permit impeachment based on unsanitized murder conviction in case charging murder].) When the immoral conduct admitted for impeachment is based on a misdemeanor (rather than felony) conviction or did not result in a conviction, additional factors may also be relevant under the court's Evidence Code section 352 analysis. (See People v. Wheeler, supra, 4 Cal.4th at pp. 296-297, & fn. 7.)
On appeal, we apply the abuse of discretion standard to review a trial court's decision concerning the use of prior offenses for impeachment. (People v. Hinton (2006) 37 Cal.4th 839, 887.)
C. Analysis
We are not persuaded by Hernandez's contentions that the trial court abused its discretion in admitting the description of firearm use for the robberies, or that defense counsel provided ineffective representation by failing to request sanitization to remove the references to firearm use. Hernandez testified that he did not use a gun during the Franco incident and that he used a toy gun during the Mendez incident. If he had been impeached by prior convictions described merely as robberies, he would have been permitted to testify with a false aura of veracity; i.e., suggesting that his version was credible because, although he had a lengthy criminal history, he did not use guns during his prior offenses. Although describing the prior robberies as involving firearms informed the jury that the prior and current conduct both involved gun use, this similarity did not compel exclusion for impeachment purposes. (See People v. Gutierrez, supra, 28 Cal.4th at pp. 1138-1139; People v. Green, supra, 34 Cal.App.4th at p. 183; People v. Johnson, supra, 233 Cal.App.3d at pp. 458-459.) The trial court could reasonably conclude that describing the robberies as involving firearms was highly relevant to Hernandez's credibility given that he was denying gun use during the charged offenses, and that the high degree of relevancy outweighed the potential for prejudice. Further, because of the high relevancy of the firearm use, reasonably competent counsel was not required to object on this ground because any such objection likely would have been futile.
Even if, arguendo, the robbery convictions should have been sanitized to remove the references to firearm use, as we shall discuss below the error would be harmless given the strength of the evidence that Hernandez used a gun during the Franco and Mendez incidents.
We also reject Hernandez's ineffective assistance claim based on defense counsel's failure to request a limiting instruction to prevent use of the impeachment evidence as propensity evidence. The jury was instructed in the language of CALCRIM No. 316 that if it found a witness had been convicted of a felony or committed a crime or other misconduct, it could consider that fact "only in evaluating the credibility of the witness's testimony." (Italics added.) The jury was also instructed in the language of CALCRIM No. 303 that certain evidence was admitted for a limited purpose, and that it could consider that evidence "only for that purpose and for no other." (Italics added.) Thus, the jury knew the prior offense evidence could be used only to evaluate whether Hernandez was telling the truth about not using guns during the charged incidents. There is nothing in the record to suggest the jury thought it could expand its use of the prior offenses by considering them as affirmative evidence that Hernandez was predisposed to use guns.
Further, in closing arguments to the jury, the prosecutor made no explicit or implicit reference to the prior convictions as propensity evidence. Although the prosecutor argued to the jury that Hernandez was acting "dangerous out there shooting people, pulling guns on people, " it is apparent from the context of the argument that the prosecutor was referring to the conduct involved in the current charged offenses. Because the record reflects that the prior convictions were used for impeachment and not propensity evidence, reasonably competent defense counsel was not required to request a limiting instruction precluding propensity use of misconduct evidence. (See People v. Freeman (1994) 8 Cal.4th 450, 495 [to prevent emphasizing evidence, defense counsel could reasonably elect not to request limiting instruction for misconduct evidence admitted for impeachment].)
As to defense counsel's failure to object to the prosecutor's cross-examination concerning the Texas robbery/gun use charges that did not result in convictions, arguably defense counsel should have objected because it is not clear the court ruled upon the admissibility of these charges. In any event, we conclude any error in this regard was harmless because there is no reasonable probability the jury would have reached a result more favorable to Hernandez even if it had not heard this testimony. Hernandez denied that he committed the two additional Texas robberies; thus, the jury had no evidentiary basis to draw any adverse inferences based on these charges. Further, as set forth above, the evidence that Hernandez used a gun during the Franco incident was compelling, including the bullet found in the bumper and Hernandez's son's statement to the police that he heard the gun "go off." Likewise, there was strong evidence that Hernandez used a real gun, not a toy, during the Mendez incident. Several of the witnesses to the Mendez incident were shown the toy gun turned over to the police by Hernandez's mother, and they consistently stated it did not look like the gun they saw Hernandez use at the residence. The jury's finding that Hernandez used a real gun at the Mendez residence is also strongly supported by the evidence showing that three days earlier he fired a real gun at Franco's vehicle. Even assuming defense counsel should have objected to the cross-examination about the additional Texas robbery/gun use charges, the error was not prejudicial.
We also reject Hernandez's contention that the trial court erred because it failed to consider that some of his prior convictions were for misdemeanors. Misdemeanor convictions may be used for impeachment, although they may be less probative of veracity than felony convictions. (People v. Wheeler, supra, 4 Cal.4th at p. 296.) Even though the trial court did not expressly state it recognized the distinction between felonies and misdemeanors, we assume the court was aware of and applied the law. (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) Hernandez has not set forth any grounds to support that the petty theft and domestic violence misdemeanors should necessarily have been excluded under Evidence Code section 352. Although the trial court indicated after Hernandez's testimony that, on second thought, it would have excluded the petty theft misdemeanor given the availability of the robberies, the court and defense counsel agreed there was no prejudice from the brief reference to this prior conviction. (See fn. 11, ante.)
Finally, we are not persuaded by Hernandez's assertion of reversible error arising from defense counsel's failure to object to the misdemeanor convictions as hearsay. Although testimonial evidence reflecting a misdemeanor conviction itself is inadmissible hearsay, a witness may properly testify regarding the conduct underlying the misdemeanor conviction. (People v. Chatman (2006) 38 Cal.4th 344, 373; People v. Wheeler, supra, 4 Cal.4th at pp. 297-300, & fn. 14; People v. Cadogan (2009) 173 Cal.App.4th 1502, 1514.) Here, Hernandez properly testified, and was cross-examined, about the conduct underlying the misdemeanor domestic violence conviction. With respect to defense counsel's failure to object on hearsay grounds to testimony that Hernandez suffered a conviction from this conduct, there is no reasonable probability that the brief reference to the fact of the conviction affected the jury's verdict. Regarding the misdemeanor petty theft conviction, on direct examination Hernandez testified he did not remember it, and the prosecutor did not mention it on cross-examination. There is no showing of prejudice.
III. Sentencing
Sentenced under the Three Strikes law, Hernandez received a prison term of 175 years to life, plus a determinate term of 15 years for three prior serious felony convictions. The 175-years-to-life indeterminate sentence consists of three consecutive terms of 25 years to life for the three offenses arising from the Franco incident (assault with a firearm, firearm possession by a felon, and discharge of a firearm at an occupied vehicle), and four consecutive terms of 25 years to life for the four offenses arising from the Mendez incident (assault with a firearm of Mendez, assault with a firearm of Ernie, firearm possession by a felon, and burglary).
Mendez asserts that two of his sentences should have been stayed under section 654. He argues (1) the sentence on one of his two convictions for firearm possession by a felon should have been stayed because the offenses involved one continuous transaction with a single objective, and (2) the sentence on his burglary conviction should have been stayed because the burglary was incidental to the assault with a firearm of Mendez. He also asserts the case should be remanded for resentencing because the trial court did not recognize that it had discretion under the Three Strikes law to impose concurrent sentences for the convictions associated with the Franco incident, and likewise for the convictions associated with the Mendez incident.
A. Stay of Sentence under Section 654
Section 654, subdivision (a) prohibits multiple punishment for a single act or indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) When a defendant is convicted of two offenses that are part of an indivisible course of conduct, the sentence for one of the offenses must be stayed. (Id. at p. 592.) The purpose of section 654 is to insure that a defendant's punishment is commensurate with his or her culpability. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252.)
Whether a course of criminal conduct is divisible so as to allow multiple punishment under section 654 depends on whether the defendant had a separate objective for each offense. (People v. Britt (2004) 32 Cal.4th 944, 951-952.) If one offense is merely intended to facilitate commission of another offense, punishment for both offenses is not permissible. (See People v. Latimer (1993) 5 Cal.4th 1203, 1216.) In contrast, if the 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. Kwok, supra, 63 Cal.App.4th at p. 1257.)
When there is a temporal or spatial separation between offenses that gives the defendant time to reflect and renew his or her intent, the defendant's decision to continue a course of criminal conduct can support a finding that the defendant entertained multiple criminal objectives. (People v. Kwok, supra, 63 Cal.App.4th at pp. 1253-1257; People v. Surdi (1995) 35 Cal.App.4th 685, 689; People v. Andra (2007) 156 Cal.App.4th 638, 640.) This time-for-reflection principle may apply even when the multiple crimes share a common overall objective. (See People v. Kwok, supra, 63 Cal.App.4th at pp. 1253-1257; People v. Britt, supra, 32 Cal.4th at p. 952 [separate objectives may be supported by consecutive acts even with similar intent].)
On appeal we apply the substantial evidence test to review the court's finding that the defendant had separate intents. (People v. Andra, supra, 156 Cal.App.4th at p. 640.) We review the evidence in the light most favorable to the court's determination, and presume in support of the court's conclusion the existence of every fact that could reasonably be deduced from the evidence. (Id. at pp. 640-641.)
Hernandez contends the trial court was not aware of the single objective test applicable to the section 654 multiple punishment issue. To support this, he points to a comment by the court (when discussing a section 654 issue raised by defense counsel) that the offenses did not have the same elements, which Hernandez construes as a reference to the rule against multiple convictions for necessarily included offenses. We note that the court also stated that the offenses did not involve "the exact same behavior, " which can suggest a reference to the multiple objective standard applicable to a section 654 inquiry. We assume the court was aware of and properly applied the law when making its sentencing decisions. (People v. Mack, supra, 178 Cal.App.3d at p. 1032.) The court's comments do not defeat this assumption.
1. Sentences for Possession of a Firearm by a Felon
In People v. Spirlin (2000) 81 Cal.App.4th 119, 123, 131, the court addressed the issue of whether a defendant who uses a gun on multiple occasions should be punished only once for his continuous unlawful gun possession. The Spirlin court concluded only a single punishment for the possession was proper, noting that the crime of gun possession by a felon does not require any specific criminal intent; possession can be actual or constructive; the evidence supported an inference that the defendant maintained possession of the gun during the time period covered by the offenses; and there was no dispute the same gun was used by the defendant during two robberies and was found at his apartment when he was arrested. (Id. at p. 130.) Spirlin concluded: "[D]efendant had continuous constructive possession of the gun from a couple of months before the robberies to when the gun was found in defendant's apartment. While what defendant did later with the weapon, i.e., commit the robberies, were 'separate and distinct transaction[s] undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon' [citation], the same cannot be said of his continuous possession of the weapon. In other words, defendant's intent to possess the weapon as a felon did not change each time he committed a robbery or when he was arrested and the gun confiscated." (Id. at pp. 130-131.)
We agree with Spirlin and apply its holding here. Hernandez was convicted of unlawfully possessing a gun on two instances within a three-day time frame. There is no evidence suggesting that his actual or constructive possession of the gun was interrupted during this time period or that he used two different guns during the two incidents. Consistent with this, in closing arguments to the jury the prosecutor asserted that Hernandez used the same gun during both the Franco and Mendez incidents. The facts reflect no more than a single objective of possessing a gun, warranting only one punishment.
The Attorney General asserts the section 654 stay provision does not apply because the record does not show that Hernandez engaged in a single act of possession. We are not persuaded. The evidence showed that Hernandez used a gun within a three-day time span, which supports an inference that he actually or constructively possessed a gun during this time period. However, absent evidence showing a significant break in his possession followed by renewed possession, the record does not support a finding that he had multiple objectives to possess a gun.
The Attorney General argues that we should not follow Spirlin, but should instead apply the time-to-reflect principle used in other contexts when a defendant commits an offense, and then renews his or her intent and commits the same offense in consecutive fashion. (See, e.g., People v. Trotter (1992) 7 Cal.App.4th 363, 367-368 [trial court could properly impose multiple punishments for multiple gunshots at pursuing police vehicle which were interrupted by a period of driving giving time to reflect].) We decline to do so. Although Hernandez renewed his intent to use the gun on April 4 after using it on April 1, he is already being punished for this renewed intent through his multiple convictions and punishment for assault with a firearm. We follow Spirlin's reasoning and conclude that Hernandez entertained a single criminal objective to possess the gun based on his continuous actual or constructive possession of the gun in April 2006. (Cf. People v. Britt, supra, 32 Cal.4th at p. 953 [section 654 stay applied to two convictions arising from failure to comply with sex offender registration requirements in county of departure and county of arrival; to hold otherwise would "parse[] the objectives too finely"].) Accordingly, Hernandez is entitled to a stayed sentence on one of his convictions for firearm possession by a felon.
In our analysis below concerning the Three Strikes law, we hold that under the circumstances of this case the trial court had discretion to impose concurrent or consecutive sentences for the gun possession convictions. Accordingly, we need not evaluate whether the section 654 stay would be inoperative if consecutive sentences were mandatory for the gun possession offenses. (See People v. Danowski (1999) 74 Cal.App.4th 815, 823.)
2. Sentences for Both Burglary and Assault with a Firearm of Mendez
Hernandez contends that sentence on the burglary offense should be stayed because he entered Mendez's residence for the purpose of assaulting Mendez with the gun, and accordingly the burglary did not have an objective distinct from the assault on Mendez. The argument fails as the trial court could reasonably find multiple objectives based on the showing that Hernandez pointed the gun at Mendez both outside and inside the residence during distinct transactions. The prosecution presented evidence showing that Hernandez pointed the gun at Mendez while Hernandez was on the front porch. When Hernandez shifted the gun to Ernie, Mendez took the opportunity to escape by running towards the back of the residence. Hernandez then went inside the residence and, from the vantage point of the living room and in the presence of Mendez's family members, again pointed the gun at Mendez. This evidence supports a finding that Hernandez had the opportunity to reflect and renew his intent between the two assaults on Mendez, and he thus evinced two distinct objectives to assault Mendez, one occurring on the front porch, and the other occurring inside the house.
The jury was instructed that the entry for the burglary was committed with the intent to commit assault with a firearm.
Hernandez's citation to People v. Hester (2000) 22 Cal.4th 290 and People v. Radil (1977) 76 Cal.App.3d 702 does not require a contrary result in this case. In Hester and Radil the courts stated that only one punishment could be imposed for a burglary based on entry with intent to assault and for commission of the intended assault upon entry. (Hester, supra, at p. 294; Radil, supra, at p. 713.) Hester and Radil do not preclude a trial court from finding two distinct objectives based on the commission of an assault outside the residence followed by another assault inside the residence.
Because the record supports that Hernandez committed two distinct assaults on Mendez, one outside and one inside the residence, he could properly be punished for both assault with a firearm on Mendez and burglary based on entry with intent to assault Mendez.
B. Discretion to Impose Concurrent Sentences Under the Three Strikes Law
When, as here, the defendant falls under the Three Strikes law because of qualifying prior felony convictions, the trial court must impose consecutive sentences if the defendant's multiple felony offenses in the current proceedings were "not committed on the same occasion" and did not "aris[e] from the same set of operative facts." (§ 667, subds. (c)(6), (c)(7).) If the defendant's offenses were committed on the same occasion, or if they were committed on different occasions but arose from the same set of operative facts, a trial court retains discretion to impose concurrent sentences. (People v. Lawrence (2000) 24 Cal.4th 219, 226-233.)
Section 667, subdivision (c)(6) states: "If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count...." The reference to "each count" refers to each count that did not occur on the same occasion or did not arise from the same set of operative facts as any other count. (See People v. Hendrix (1997) 16 Cal.4th 508, 517-519 (conc. opn. of Mosk, J.).)
In People v. Deloza, the California Supreme Court held that the determination of whether consecutive sentences are mandatory under the Three Strikes law is not governed by a section 654 evaluation of whether the defendant had multiple criminal objectives during an otherwise indivisible transaction. (People v. Deloza, supra, 18 Cal.4th at pp. 593-595.) Rather, to determine whether offenses did not occur on the "same occasion" and did not arise from the "same set of operative facts" so as to mandate consecutive sentences, the courts should apply the ordinary, commonly understood meaning of these terms to the facts. (Id. at pp. 594-595; People v. Lawrence, supra, 24 Cal.4th at pp. 226, 229, 231-232.)
Applying an ordinary meaning, offenses committed on the same occasion require a "close temporal and spatial proximity...." (People v. Deloza, supra, 18 Cal.4th at p. 595; People v. Lawrence, supra, 24 Cal.4th at p. 226.) To make the same-occasion determination, the courts consider the extent to which the offenses are or are not separated by such factors as time, location, and intervening events. (See, e.g., People v. Deloza, supra, 18 Cal.4th at pp. 595-596 [offenses occurred on same occasion when defendant committed robberies by stealing items from multiple persons in store; offenses were at one location, of short duration, essentially simultaneous, against same group of victims, and were not separated by another event]; People v. Jefferson (1999)21 Cal.4th 86, 90, 102, fn. 4 [same occasion when defendant shot into group of people]; People v. Danowski, supra, 74 Cal.App.4th at pp. 817, 821 [same occasion when defendant attempted to rob, and then shot, resisting victim]; compare People v. Lawrence, supra, 24 Cal.4th at p. 228 [offenses did not occur on same occasion when defendant stole from a store and then, after running some distance to a different location, assaulted an individual who was unrelated to the theft]; People v. Durant (1999) 68 Cal.App.4th 1393, 1401-1407 [not same occasion when defendant burglarized and attempted to burglarize different homes in housing complex].)
If the offenses did not occur on the same occasion, they still need not be sentenced consecutively if they arose from the same set of operative facts. "Operative" facts refers to the facts of the case that prove the offenses. (People v. Lawrence, supra, 24 Cal.4th at pp. 231-232.) Thus, the " 'same set of operative facts' " means "sharing common acts or criminal conduct that serves to establish the elements" of the offenses. (Id. at p. 233.) Relevant considerations include "the extent to which the common acts and elements of such offenses unfold together or overlap, and the extent to which the elements of one offense have been satisfied, rendering that offense completed in the eyes of the law before the commission of further criminal acts constituting additional and separately chargeable crimes...." (Ibid.; see, e.g., People v. Garcia (2008) 167 Cal.App.4th 1550, 1556-1567 [same operative facts for firearm possession by felon and for robbery and other offenses committed with same firearm]; People v. Briones (2008) 167 Cal.App.4th 524, 529 [same operative facts for conspiracy to possess drugs for sale and possession of drugs for sale]); compare People v. Lawrence, supra, 24 Cal.4th at pp. 233-234 [distinct operative facts for theft committed at store followed by assault of different victim at different location]; People v. Durant, supra, 68 Cal.App.4th at pp. 1401-1407 [distinct operative facts for multiple burglaries at same housing complex].)
Here, when making its decision to impose consecutive sentences for all seven offenses, the trial court stated: "[T]he penalty as to all counts is an indeterminate sentence of 25 years to life to be served consecutively, and the reason that the Court is imposing consecutive sentences is because we have different victims and the crimes occurred on separate occasions involving separate victims. So according to my understanding of the law, the court is required to impose consecutive sentences. These are separate crimes that did not arise out of the same operative facts."
Hernandez contends that although the trial court properly determined that consecutive sentences were mandatory as between the Franco and Mendez incidents, the court failed to recognize that it had discretion to impose concurrent sentences as between the offenses associated with each incident. We agree. The trial court's explanation for mandatory imposition of consecutive sentences related to distinctions between the Franco and Mendez incidents (i.e., separate occasions and separate victims), but did not relate to distinctions between the offenses arising from each of those incidents.
Regarding the Franco car incident, the assault with a firearm (count 1) and the discharge of the firearm at an occupied vehicle (count 3) involved simultaneous conduct. These offenses clearly occurred on the same occasion. Further, even if the possession of a firearm by a felon (count 2) is construed as occurring on a different occasion because the possession began before the assault and shooting, the possession offense arises from the same operative fact as the assault and shooting offenses. Although the possession offense was complete at the time of the assault, because of the continuous nature of the possession offense it was still occurring when Hernandez displayed and shot the gun at Franco's vehicle. Further, Hernandez could not have displayed or shot the gun without possessing the gun. Thus, Hernandez's possession of the gun was an overlapping fact related to the elements of all the Franco incident offenses. (People v. Garcia, supra, 167 Cal.App.4th at p. 1567; see People v. Briones, supra, 167 Cal.App.4th at p. 529.)
Regarding the Mendez house incident, the assaults with a firearm (counts 4 and 5) and the burglary (count 7) occurred at one house (on the front porch and just inside in the living room) and transpired within minutes of each other. The offenses were directed at the same group of victims (the people at the house). Hernandez engaged in a continuous course of conduct when he pointed the gun at the victims in front of the house, entered the house, and again pointed the gun. This is not a case where there was a significant interruption which created a separate occasion even though the entire event occurred at the same location. (Compare People v. Deloza, supra, 18 Cal.4th at pp. 589, 596 [robberies were committed on same occasion even though one robbery victim (a customer at store) approached defendant during robbery thinking he was an employee; this was not an interruption of the crime but merely a continuation with an additional victim] with People v. Jenkins (2001) 86 Cal.App.4th 699, 705-707 [attempted murder and aggravated assault involved different occasions and different operative facts when defendant entered apartment and attacked two victims in different areas of the apartment and with intervening events, including weapon retrieval from the kitchen].) Applying an ordinary meaning, the offenses at the Mendez residence were so close in time and place as to have occurred on the same occasion. Further, as with the Franco incident, the gun possession by a felon for the Mendez incident shares an essential, operative fact with the assaults for the Mendez incident.
Mendez testified that Hernandez pointed the gun at him for less than a minute, that he ran back to his bedroom for less than a minute, and that when he came back out Hernandez was already gone.
In sum, because the offenses related to the Franco and Mendez incidents, respectively, were committed on the same occasion or arose from the same set of operative facts, they do not fall within the mandatory consecutive sentencing provision of the Three Strikes law. Although the trial court was required to impose consecutive sentences as between the distinct Franco and Mendez incidents, it had discretion to select concurrent sentences as between the offenses associated with each of those incidents. (See, e.g., People v. Newsome (1997) 57 Cal.App.4th 902, 911-912 [although consecutive sentences were mandatory for criminal threat counts based on different incidents, consecutive sentences were discretionary for robbery counts based on same incident]; see generally People v. Hendrix, supra, 16 Cal.4th at pages 517-519 (conc. opn. of Mosk, J.) [consecutive sentences mandatory only for counts that involve different occasions/different facts from any other count].)
We remand the matter for resentencing for the court to evaluate each of the sentences for the Franco incident convictions to determine whether the sentences should be concurrent or consecutive to each other, and to make the same determinations for the Mendez incident convictions.
DISPOSITION
The judgment is affirmed as to the convictions. The judgment is reversed as to the sentence and the case remanded for resentencing. The trial court should stay the sentence on one of the two convictions for firearm possession by a felon. The court should impose a sentence for the Mendez incident consecutive to a sentence for the Franco incident. For each of the remaining convictions, the court should exercise its discretion to select consecutive or concurrent sentences. In all other respects, the sentence was proper.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.