Opinion
B160015.
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. PATRICK HERNANDEZ, Defendant and Appellant.
Greg M. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
Patrick Hernandez appeals from the judgment entered after a jury convicted him of attempted murder. (Pen. Code, §§ 664/187, subd. (a).) For the reasons set forth below, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In accord with the usual rules on appeal, we state the facts in the manner most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103.)
At around 8:30 p.m. on December 2, 2000, Christina Tays walked into her bedroom to find former boyfriend Patrick Hernandez at her window trying to remove the window screen. Hernandez pointed a gun at Tays head and pulled the trigger. Tays heard the gun click, but it did not fire. Believing that Hernandez was there to kill her, Tays ran from her room and out of her house, fleeing to the home of her friend and neighbor, Jacqueline Salazar. Hernandez entered Tays room and ran after her to the Salazar house, where a backyard birthday party was underway. Hernandez tackled Tays in the Salazars backyard and put the gun to Tays head. After saying, "You fucking bitch, you fucking, bitch," Hernandez pulled the trigger again. As before in Tays bedroom, the gun made a clicking sound but did not fire.
Hernandez had previously threatened to kill Tays when she tried to break up with him, and she once obtained a restraining order against Hernandez after their relationship ended.
Andres Torres, a close family friend of the Salazars, approached Hernandez and started to kick at him. Hernandez fled and Tays made an emergency "911" call to the police, telling them she thought Hernandez might have a BB or pellet gun. While being driven home by her brother a short time later, Tays spotted Hernandez and flagged down a passing police car. The officers arrested Hernandez and began looking for the weapon he had used. Hernandez told the officers they would not find it because he had thrown it away.
Hernandez was charged with two counts of attempted murder, the first for trying to shoot Tays in her bedroom, and the second for trying to shoot her in the Salazars backyard. The information included four other counts: two for assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and one each of burglary ( § 459) and making a terrorist threat. (§ 422.) The information also alleged as to all six counts that Hernandez personally used a firearm. ( §§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1).)
All further section references are to the Penal Code.
Judgment for Hernandez was entered on the terrorist threat count after the prosecution rested its case. ( § 1118.1.)
The jury convicted Hernandez of the second attempted murder count for trying to shoot Tays in the Salazars backyard. It also convicted him of simple assault ( § 240) as a lesser included offense of the assault with a firearm charge, but acquitted him of the other remaining counts. Hernandez was given a life sentence with the possibility of parole. He contends on appeal that there was insufficient evidence to support the attempted murder charge because the evidence showed he used either a pellet gun or an unloaded firearm, meaning he lacked the required ability or intent to kill. He also contends that the verdicts are fatally inconsistent because the jury found not true the firearm use allegation and convicted him of simple assault, not assault with a firearm. Finally, Hernandez contends the court erred by applying the wrong standard when denying his new trial motion and his motion to modify the judgment ( § 1118.1), which were based on his claim that there was insufficient evidence of his intent to kill.
DISCUSSION
1. Gun Use Evidence Supports The Attempted Murder Conviction
An attempted murder conviction requires proof of the intent to commit murder, along with a "direct but ineffectual act toward its commission." (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) The defendant must therefore commit some appreciable fragment of the crime and it must be sufficiently far along that it will be consummated unless interrupted by circumstances independent of the defendants will. (People v. Adami (1973) 36 Cal. App. 3d 452, 455, 111 Cal. Rptr. 544.) Hernandez contends there was insufficient evidence that he used anything other than a pellet gun or an unloaded firearm, making it impossible for the jury to conclude that he had either the present ability or the intent to kill Tays. He bases this contention on the following: (1) Tays 911 call, where she said she believed Hernandez had used a BB gun; and (2) certain inconsistencies or omissions in the version of events supplied by Tays, Salazar and Torres. We disagree.
These included their failure to tell the police that the weapon was a revolver or that they saw Hernandez pull the trigger, combined with the fact that they were friendly with each other, leading Hernandez to contend that their stories "evolved" over time.
Tays told the 911 operator, "It was like a BB gun or something. It wasnt a gun gun. It was like a BB gun or a pellet gun or something. It wasnt like a real gun." Asked by the operator whether she was certain about that, Tays replied, "I see, um, I think, but - . . . ." When the operator said, "Youre not really sure?" Tays said, "Yeah, thats what it looked like." There is a degree of uncertainty inherent in Tays comments and Tays testified that her statements to the 911 operator were based solely on the fact that the gun did not fire. Otherwise, she had no reason to believe Hernandez had not used a real gun. Although Salazar was not sure whether it was a real gun, she heard the clicking sound when Hernandez pulled the trigger and thought the gun looked real. Torres saw Hernandez move the gun around as Tays struggled, as if he were trying to keep it pointed at her head. He saw Hernandezs hands "flinch," and thought he might have then heard a clicking sound. Both Salazar and Torres said the gun was a revolver. A police officer who was familiar with both firearms and BB guns said he had never seen a revolver-style BB gun. The same officer testified at length to the many malfunctions that might cause a loaded gun to misfire.
We believe the police officers testimony that BB guns did not come with revolving cylinders, combined with the eyewitness statements that the gun looked like a real revolver and Hernandezs concealment of the weapon by throwing it away, is sufficient to show that a real gun was used. Given Hernandezs prior threats to kill Tays if their relationship ended, the manner in which Hernandez used the gun - breaking into Tays home, attempting to fire at her, pursuing and tackling her, putting the gun to her forehead and pulling the trigger again while calling her a "fucking bitch" - is enough to show that the gun was loaded. (People v. Rodriguez (1999) 20 Cal.4th 1, 12-13, 971 P.2d 618 [defendants acts and statements may show gun was loaded]; see People v. Lochtefeld (2000) 77 Cal.App.4th 533, 541-542, and cases cited therein.) The police officers testimony as to the many reasons why a loaded gun will misfire was sufficient to explain the clicking sound that the witnesses heard and the fact that the gun did not fire. Any discrepancies in the witnesses stories were no more than credibility issues for the jury to resolve. (People v. Mobley (1999) 72 Cal.App.4th 761, 788-790.) In short, there was sufficient evidence for the jury to conclude that Hernandez used a real, loaded gun and therefore had the ability and the intent to kill Tays. Because Hernandezs evidentiary challenge to his attempted murder conviction rests solely on this basis, we will affirm.
2. Inconsistent Verdicts
The jury found not true the allegation that Hernandez used a gun during his crimes. ( § 12022.5, subd. (a)(1).) It also acquitted him of assault with a firearm, finding instead that he was guilty of simple assault. Because his attempted murder conviction was predicated on his use of a gun, Hernandez contends the verdicts are fatally inconsistent. He is wrong.
Under section 954, an acquittal of one or more counts shall not be deemed an acquittal of any other counts. As a result, a jury may return inconsistent verdicts on separate counts. The portion of section 954 dealing with inconsistent verdicts was adopted in 1927 to ensure that apparently inconsistent verdicts would not require reversal where there was sufficient evidence that the defendant committed the crime of which he was convicted. Since then, our courts have "followed the general rule and viewed an inconsistent acquittal as the product of confusion or an act of mercy on the part of the jury, of which an appellant is not permitted to take further advantage. [Citations.]" (People v. Pahl (1991) 226 Cal. App. 3d 1651, 1657, 277 Cal. Rptr. 656 (Pahl).) "Simply put, Consistency in the verdict is not necessary. [Citation.]" (Id. at p. 1657.)
This rule is equally applicable to enhancements. (People v. York (1992) 11 Cal.App.4th 1506, 1510 [defendant was convicted of murder ( § 187) and lewd or lascivious conduct (§ 288, subd. (a)), but the jury found not true a special circumstance that the murder occurred while defendant engaged in the lewd or lascivious act; any inconsistence in the verdicts was held proper under section 954].) The court in People v. Federico (1981) 127 Cal. App. 3d 20, 32, 179 Cal. Rptr. 315 (Federico), considered an appeal by a defendant convicted of murder where the victim was shot to death. The jury found not true the sentence enhancement allegation that the defendant was armed with a firearm ( § 12022) even though its applicability was undisputed because, at a minimum, the defendants accomplice actually fired the gun. Even so, that apparent inconsistency did not compel a reversal because there was sufficient evidence to support the murder conviction. (Id. at pp. 32-33.)
A defendant is "armed" with a firearm even though his accomplice actually has possession of the weapon during the commission of the offense. (Federico, supra, 127 Cal. App. 3d at p. 31.)
Hernandez attempts to avoid section 954 by pointing to cases which held that a reversal is required where all the essential elements of the crime of which the defendant was acquitted are identical to all or some of the essential elements of the crime of which he was convicted, and proof of the acquitted offense is necessary to sustain the conviction. The decisions he cites for this proposition have either been rejected or are otherwise inapplicable, however. For instance, Hernandez relies on People v. Eberhardt (1985) 169 Cal. App. 3d 292, 297, 215 Cal. Rptr. 161 (Eberhardt), which cited People v. Hamilton (1978) 80 Cal. App. 3d 124, 130, 145 Cal. Rptr. 429, for that proposition. The Eberhardt court later reversed itself in Pahl, supra, 226 Cal. App. 3d at pages 1657-1660, holding that the judicial exception announced in Eberhardt was limited to conspiracy charges, where the underlying overt acts for the conspiracy were identical to other charges of which the defendant was acquitted. In so holding, the Pahl court said that its earlier decision was improperly based on Hamilton, which had overstated the reach of that exception. (Pahl, supra, at pp. 1657-1660.) Hernandez also relies on Federico, supra, 127 Cal. App. 3d 20. However, the Federico court noted the same exception, but held it was inapplicable to the firearm use enhancement at issue there. (Id. at p. 32.) Based on these authorities, we conclude that any inconsistency in the verdicts does not require a reversal.
Hamilton was overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12, 957 P.2d 869.
We also note that the jury acquitted Hernandez of the first attempted murder count, although there was no dispute that he entered Tays room, pointed a gun-like object at her head, and pulled the trigger. Hernandez does not discuss this apparent inconsistency, which we believe is hard to explain as anything other than an act of lenity.
3. New Trial Motion
Based on his claim that there was insufficient evidence to support the attempted murder conviction, Hernandez brought a motion for new trial and a motion to modify the judgment (§ 1118.1) with a conviction on the lesser included offenses of assault or battery. He contends that the trial courts denial of those motions was error because the trial court wrongly deferred to the jurys findings instead of exercising its own independent analysis of the evidence. (People v. Price (1992) 4 Cal.App.4th 1272, 1275 [new trial motions]; People v. Lopez (1997) 52 Cal.App.4th 233, 250, fn. 7 [in ruling on section 1118.1 motion, trial court acts as appellate court would in determining whether evidence was sufficient].) He bases this argument on a selective reading of the trial courts comments, choosing to focus on the courts statement that it was the jurys job to make factual determinations and it was not the courts job to second guess them. In doing so, he has ignored the courts statement that it had independently weighed the evidence, which the court believed justified the jurys verdict. As a result, we will affirm.
DISPOSITION
For the reasons set forth above, the judgment is affirmed.
We concur: COOPER, P.J., BOLAND, J.