Opinion
A158720
08-12-2021
THE PEOPLE, Plaintiff and Respondent, v. HALOTI LAUESE, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 463038
KLINE, P.J.
Defendant Haloti Lauese was found guilty following a jury trial of one count of premeditated attempted murder, one count of attempted murder, three counts of assault on a peace officer with a semiautomatic firearm, and two counts of home invasion robbery in concert. On appeal, he contends (1) there was insufficient evidence that he fired his gun with the intent to kill one of the officers in question; (2) there was insufficient evidence to support the finding of premeditation and deliberation as to that same officer; and (3) the trial court misunderstood its discretion at sentencing when it ordered defendant to serve indeterminate and determinate prison terms consecutively. We shall affirm the judgment.
PROCEDURAL BACKGROUND
On October 11, 2018, defendant was charged by amended information with premeditated attempted murder of a peace officer (Officer Lawrence; Pen. Code, §§ 187, subd. (a), 664-count 1); premeditated attempted murder of a peace officer (Officer Saunders; §§ 187, subd. (a), 664-count 2); premeditated attempted murder of a peace officer (Officer Schwerin; §§ 187, subd. (a), 664-count 3); assault on a peace officer with a semiautomatic firearm (Lawrence; § 245, subd. (d)(2)-count 7); assault on a peace officer with a semiautomatic firearm (Saunders; § 245, subd. (d)(2)-count 8); assault on a peace officer with a semiautomatic firearm (Schwerin; § 245, subd. (d)(2)-count 9); and three counts of home invasion robbery in concert (§ 211; counts 10-12). Counts 1 to 3 and 7 to 9 included enhancement allegations for personal and intentional discharge/personal use of a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c) & (g)). Counts 10 to 12 included enhancement allegations for personal use of a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (g)).
The amended information included charges against codefendants Derrick Fracure and Demetrius Crayton. Counts 4 to 6 and 13 to 14 concerned only Fracure and Crayton; counts 7 to 12 concerned defendant and both codefendants. Defendant was tried separately from his codefendants.
All statutory references are to the Penal Code unless otherwise indicated.
On November 15, 2018, following a jury trial, the jury found defendant guilty of premeditated attempted murder of Officer Lawrence (count 1); attempted murder of Officer Saunders (count 2); the three counts of assault on a peace officer with a semiautomatic firearm (counts 7-9); and two of the three counts of home invasion robbery in concert (counts 10-11). The jury was unable to reach a verdict as to whether the attempted murder of Saunders was premeditated in count 2 and found defendant not guilty of the attempted murder of Schwerin in count 3. The jury found true all of the enhancement allegations accompanying the counts of which it found defendant guilty.
On August 23, 2019, the trial court sentenced defendant as follows: 15 years to life in prison on count 1, plus a consecutive 20 years for the firearm discharge enhancement; life in prison with the possibility of parole on count 2, plus a consecutive 20 years for the firearm discharge enhancement; the upper term of 9 years on count 9, plus 20 years for the firearm discharge enhancement. The court imposed and stayed 9-year sentences on counts 7 and 8 and the related enhancements, pursuant to section 654. The court imposed 9-year upper term sentences on counts 10 and 11, plus 10 years for the firearm discharge enhancements, to run concurrently with count 9. The court ordered the two indeterminate terms to run consecutive to the three determinate terms.
On October 15, 2019, defendant filed a notice of appeal.
FACTUAL BACKGROUND
Christina E. testified that on April 29, 2015, she was in her apartment in Fremont with her fiancé, Gary H., and another friend, Kenny S., when Gary answered a knock on the door. Three men barged into the apartment. Each of them was holding a handgun, and she saw one of them pointing his gun at Gary, who backed up and sat on the living room couch. One of the men pointed a gun at Christina's head and ordered her to get on her knees, which she did. Christina had never seen any of the men before, two of whom were African-American, one skinny and one chubby; the other man appeared to be Pacific Islander or Tongan. Christina identified defendant at trial as the Pacific Islander man in her apartment that night.
The three men, defendant in particular, kept asking Gary, “ ‘Where's the money and where's the drugs?' ” Gary told defendant, “ ‘we've got nothing here. You've got the wrong house.' ” The men told Gary to empty his pockets and they took some money from him. Defendant also took a chain that Kenny was wearing and tried to take his cell phone. When Kenny asked defendant not to take the phone, defendant pistol-whipped him in the head. Kenny, who was now bleeding from his head, gave defendant his phone. The men also looked through Christina's purse, but did not take anything. One of the African-American men went into the area of the apartment where the bedrooms were located and returned with her laptop computer.
At some point, another friend of Gary's arrived at the apartment and opened the front door. When he saw the guns, the friend closed the door and left. Kenny said, “ ‘Oh, he's scared. He's going to call the police.' ” Kenny then stood up and put his hands up, saying, “ ‘[d]on't shoot,' ” and ran out the front door. The three robbers than ran out the front door after him. Christina stayed in the apartment for a few minutes before also running outside, where she heard a gunshot. When police officers arrived, she and Gary spoke with them about the robbery.
Gary H. testified similarly about the events of the robbery, adding that “two Black men were following” defendant, who was the one asking questions and pointing his pistol at him, Christina, and Kenny. The “chubby Black man took weed” in a Ziploc bag from Kenny, in addition to his chain and cell phone. After Kenny ran out of the apartment, defendant ran out after him and Gary followed behind. Defendant ran one way while Gary and Kenny ran to Gary's car with the thought that they would run him down. Gary drove toward defendant, but defendant pointed his pistol at them, so Gary stopped his car and lost sight of defendant as he ran away. Gary then heard a gunshot “vaguely in the air.”
Gary's friend, Kenny S., who also testified at trial, heard a gunshot a short time after he ran out of the apartment and just before he saw the three robbers run around a corner.
A couple of months before the robbery, Gary had seen defendant hanging around outside the apartment building. Gary introduced himself and they smoked a “blunt” together. Defendant, who seemed “super cool” and “hella nice, ” said he was there visiting his “baby mama.” During the robbery, defendant's behavior was different. He was fidgety and had a stern look on his face. He seemed like he was on drugs.
Khaled M. another friend of Gary's, testified that he drove up to the apartment building a short time before the three robbers ran out of Gary's apartment. He saw them get into an older light green Honda automobile. Khaled followed their car until a man in the back seat pointed a gun out the window toward Khaled's car, at which point he stopped following. He was able to record the license plate number of the car. He returned to the apartment and told Gary the plate number, and Gary gave the information to police.
Fremont Police Officer Jeff Lawrence was driving his unmarked police car near the Dumbarton Bridge when he heard a radio dispatch describing the vehicle and suspects involved in the home invasion robbery. When he saw a Honda and people inside matching the description provided on the radio dispatch, he followed the car to the toll plaza and onto the bridge, while providing dispatch with information about the vehicle's location. Lawrence, who was in plain clothes, put on his bulletproof vest and continued to follow the car across the bridge. He then noticed a marked police car that he believed was from the Newark Police Department coming up quickly behind him. The Honda's driver seemed to become aware of being followed and began accelerating. Lawrence drove 95 miles per hour as he chased it. Once off the bridge, Lawrence encountered rush hour traffic; he therefore activated his lights and siren and slowed down. The Newark police car was ahead of him when the Honda turned left into a business park.
The Newark police car was being driven by former Newark Police Officer Jeffrey Saunders. He was in uniform in a marked patrol car, with Officer Schwerin in the front passenger seat. After learning that Officer Lawrence had spotted the Honda, he attempted to catch up with him on the Dumbarton Bridge. After Lawrence lost sight of the Honda, Saunders passed Lawrence's vehicle and saw the Honda. He activated his car's lights and siren and pursued the Honda as it turned left into a business complex and began to slow down. Then, while the Honda was still moving, the driver's side door, the front passenger door, and right rear passenger door opened, and three individuals exited the car.
As Saunders shifted the patrol car into park and opened the car door in preparation to exit the vehicle, he saw the driver and front passenger run in different directions. He then described seeing “the right rear passenger turn towards my vehicle, square his body to me, raise his right arm and I saw a flash of light, heard three pops, and then there was another fourth pop.” Saunders got a look at the gun while it was pointed in his direction; it appeared to be a black semiautomatic pistol. At trial, Saunders identified defendant as the right rear passenger who shot at him. Defendant was between 10 and 15 yards away from Saunders at the time of the shooting.
Saunders went to the rear of his vehicle and drew his weapon in order to return fire. He saw defendant running away from him, but because there were many vehicles in the parking lot, he did not want to endanger anyone else by returning fire. Instead, he and Schwerin began running after defendant. As he ran, Saunders heard more gunshots, but lost sight of defendant as he rounded the corner of nearby businesses. He then saw defendant again as he crossed from one side of the parking lot to the other. He and Schwerin ran after defendant, but again lost sight of him and started chasing another suspect, a Black male, who was running through the parking lot. Saunders later saw a bullet hole in the center of the driver's side door of the patrol car he had been driving that night.
Former Newark Police Officer Lisa Schwerin was in uniform and sitting in the front passenger seat on the night she and Saunders followed the Honda across the Dumbarton Bridge and into the parking lot. Once in the parking lot, a suspect from the Honda turned toward her and Saunders and fired his gun at them. At trial, she identified defendant as the suspect who shot at them that night. She described seeing defendant turn toward the patrol car from around three car lengths away, “square[] his shoulders toward us, toward the vehicle, and he lifted his gun up and fired some rounds before I went and ducked down.” She then saw defendant running away. Schwerin got her gun, exited the patrol car, and started running toward defendant. She then heard another shot being fired from defendant's gun. She and Saunders continued the chase for a few more yards, until she realized they were not going to be able to catch up with him. She then saw Officer Lawrence start following defendant in his unmarked car.
Meanwhile, Officer Lawrence had followed the Honda and the Newark patrol car into the parking lot, where he saw three people exiting the Honda, including two Black males exiting from driver's side of the vehicle, and a Pacific Islander male exiting from the passenger side of the vehicle. He then heard rapid gunshots before coming to a stop, with the patrol car between his car and the Honda. Almost immediately, he saw that the Pacific Islander male had a black semiautomatic pistol in his hand as he ran from the Honda. Lawrence stayed in his car as he followed the path in which the Pacific Islander male was running, keeping a distance of approximately 50 feet between his car, which had its lights and siren going, and the suspect. The suspect would turn to look behind him periodically, but kept running forward as he looked. At trial, Lawrence identified defendant as the Pacific Islander suspect he was chasing that night.
After turning right while following defendant, Lawrence saw him about 50 feet away, “stopped in his tracks, and he turned his body, which would have been 90 degrees towards me, and with a single arm he elevated his right hand, took a shooting platform and he fired a round at my vehicle.” Lawrence stopped driving, ducked down, and tried to hide behind the dashboard and engine block as he also kept watching defendant. Lawrence explained that by “shooting platform, ” he meant that defendant was not turning and shooting indiscriminately as he ran. Rather, he was sprinting to get away when he came to a complete stop, turned to face Lawrence's vehicle, elevated his hand and fired a round, looking directly at Lawrence as he pointed the gun and shot. Defendant then started running again in the same direction as before he stopped to shoot, and Lawrence continued to follow in his car, remaining 50 feet behind him.
At one point, defendant ran into the middle of the parking lane again and, “very similarly to the first time, he stopped his momentum, turned a second time, elevated the gun and pointed it right at me and fired another round....” In the second shooting, defendant again stopped completely and looked directly at Lawrence as he pointed the gun. Lawrence slammed on the brakes again and got his head down just before defendant shot at him. When defendant began running again, Lawrence again followed behind. Defendant then made a hard right turn toward a fence line and Lawrence accelerated the car toward him. He saw defendant lob his gun underhand toward the fence before climbing over the fence and disappearing on the other side. Lawrence broadcast all of this information on his radio. Lawrence had not tried to shoot at defendant because it would have been unreasonable to think he could hit a moving subject from a moving vehicle without endangering the public. Lawrence subsequently found defendant's pistol on the other side of the fence where defendant had tossed it.
Defendant was located by police a short time later, lying on his back in nearby bushes. The other two suspects were also eventually apprehended.
Various audio and video recordings that captured some of the events at the business park parking lot, including the sound of gunshots, were played for the jury during trial. A recording showed that the driver's side door of the Newark patrol car was partially open when the first three shots were fired. Defendant was identified in showups that night by Christina E., Officers Gary H., Lawrence, Saunders, and Schwerin.
Police recovered a loaded.45 caliber pistol, a bag of marijuana, a cell phone, and Christina E.'s laptop computer from inside the Honda. Five shell casings and one bullet projectile were found at or near the scene of the shootings. All of them had been fired by the pistol found on the far side of the fence that defendant had climbed over.
DISCUSSION
I. Sufficiency of the Evidence Claims
“In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ‘ “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”' [Citations.]
“ ‘ “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citation.]” [Citation.]' [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).)
A. Sufficiency of the Evidence of Intent to Kill Officer Lawrence
Defendant first contends there was insufficient evidence that he fired his gun with the intent to kill Officer Lawrence.
“ ‘The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice-a conscious disregard for life-suffices. [Citation.]' [Citation.] In contrast, ‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' [Citations.] Hence, in order for defendant to be convicted of the attempted murder of [Officer Lawrence], the prosecution had to prove he acted with specific intent to kill that victim. [Citation.]” (Smith, supra, 37 Cal.4th at p. 739.)
In establishing a defendant's intent to kill, evidence of motive is not required for either murder or attempted murder. Such evidence, however, “is often probative of intent.” (Smith, supra, 37 Cal.4th at p. 741.) Here, defendant had committed a home invasion robbery earlier that night and was attempting to escape from police on foot, following a car chase. He had just attempted to murder Officer Saunders as he prepared to exit his patrol car when Lawrence, in a police vehicle with lights and sirens activated, began to pursue him as he attempted to escape on foot. The evidence that defendant twice stopped his flight and took the time to turn, aim, and shoot directly at Lawrence, could certainly support a reasonable inference that he intended to kill Lawrence to evade capture by police. (See ibid.)
“Evidence of motive aside, it is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant's acts and the circumstances of the crime. [Citation.] ‘There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions. [Citations.] The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill....” [Citations.]' [Citations.] ‘ “The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter's poor marksmanship necessarily establish a less culpable state of mind.” [Citation.]' [Citation.]” (Smith, supra, 37 Cal.4th at p. 741, quoting People v. Chinchilla (1997) 52 Cal.App.4th 683, 690; People v. Lashley (1991) 1 Cal.App.4th 938, 945.)
The evidence relevant to defendant's intent to kill Lawrence includes the following. As noted, the shootings took place following a home invasion robbery in which appellant was a suspect and the subsequent pursuit of the getaway car by Saunders and Schwerin in one police car and Lawrence in a second car, which ended in a parking lot. By the time Lawrence started following defendant, he had already exited the Honda and shot at the other police car while the other two officers were still inside. As defendant began to run away, Lawrence followed him in his police car, which by then had its lights and siren activated, keeping a distance of approximately 50 feet between the car and defendant. While running, defendant turned to look behind him periodically, but kept moving forward as he did so. Then, as Lawrence continued to follow behind him, defendant “stopped in his tracks, ” turned around to completely face Lawrence, raised his right hand, and fired a round directly at Lawrence. Defendant was not “just pointing the gun behind him and shooting indiscriminately.” Defendant then began running again, before again stopping, turning around, and again shooting directly at Lawrence from approximately 50 feet away.
Considering this very strong circumstantial evidence of defendant's intent in the light most favorable to the judgment, we conclude a rational jury could find beyond a reasonable doubt that defendant intended to kill Lawrence. (See Smith, supra, 37 Cal.4th at p. 741.)
Defendant argues, however, that the problem with this evidence is that had he been attempting to shoot Lawrence from 50 feet away, he would at least have hit Lawrence's car, which the evidence showed he did not.
Our Supreme Court rejected a similar claim in Smith, in which the defendant fired a single shot into a vehicle that was pulling away from the curb, from directly behind and one car length away. When the defendant fired his gun, a woman was driving the car and her baby was in a car seat directly behind her. Neither one was hit by the bullet; a slug was recovered from the driver's side door. (Smith, supra, 37 Cal.4th at pp. 742-743.) A jury found the defendant guilty of attempted murder of the woman and the baby, and our high court concluded substantial evidence supported defendant's conviction of attempted murder of the baby, as well as the mother. (Id. at p. 742.)
As relevant here, the defendant argued “that ‘[he] fired from a point very near the car, and thus a “high potential for accuracy” existed.' He asks this court to infer from that circumstance that ‘the fact that the baby was not hit, under such conditions of accuracy, tends to prove the baby was not a target.' ” (Smith, supra, 37 Cal.4th at p. 744.) The Smith court rejected this claim, reiterating the legal principle that “the fact that the victim or victims may have escaped death due to the shooter's poor marksmanship does not necessarily establish a less culpable state of mind. [Citation.]” (Id. at p. 745; accord, People v. Chinchilla, supra, 52 Cal.App.4th at p. 690; People v. Lashley, supra, 1 Cal.App.4th at p. 945.)
Here too, considering all of the circumstances just discussed, the fact that defendant missed the mark when he fired his gun at Lawrence from 50 feet away does not “establish a less culpable state mind” with respect to his intent to kill. (See Smith, supra, 37 Cal.4th at p. 745.)
For the same reasons, we reject defendant's assertion that the failure of the bullets to strike Lawrence or his car nonetheless provides a conflicting inference regarding his intent, which precludes his conviction of attempted murder. In support of this claim, he relies on People v. Tran (1996) 47 Cal.App.4th 759, 772 (Tran), in which the appellate court stated: “ ‘[W]here the proven facts give equal support to two inconsistent inferences, neither is established. [Citation.].' ” (Id. at p. 772.) We do not agree with defendant that the evidence presented at trial in this case gave rise to two inconsistent inferences. Rather the verdict reflects the jury's well-supported findings that the circumstantial evidence of intent to kill was persuasive and that the testimony of Lawrence regarding what transpired was credible. (See Smith, supra, 37 Cal.4th at p. 739 [if verdict is supported by substantial evidence, we must defer to trier of fact and not substitute our evaluation of a witness's credibility for that of fact finder].) Defendant's reliance on Tran is misplaced.
In short, substantial evidence supported the jury's finding that defendant intended to kill Lawrence. (See Smith, supra, 37 Cal.4th at pp. 738-739.)
B. Sufficiency of the Evidence to Support the Finding of Premeditation and Deliberation as to Officer Lawrence
Defendant next contends there was insufficient evidence to support the jury's finding of premeditation and deliberation in the attempted murder of Officer Lawrence.
“[T]he crime of attempted murder is not divided into degrees. [Citation.]” However, “[t]he prosecution may seek a jury finding that an attempted murder was ‘willful, deliberate, and premeditated' for purposes of sentence enhancement (§ 664, subd. (a); [citation].)” (Smith, supra, 37 Cal.4th at p. 740; see § 664, subds. (e), (f) [describing offense of attempted murder with premeditation and deliberation as applied to victim who is, inter alia, a peace officer, for purposes of sentencing enhancement].)
“ ‘ “ ‘Deliberation' refers to careful weighing of considerations in forming a course of action; ‘premeditation' means thought over in advance. [Citations.] ‘The process of premeditation... does not require any extended period of time. “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....” [Citations.]' ”' [Citation.]
“ ‘ “ ‘An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.' [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported-preexisting motive, planning activity, and manner of killing-but ‘[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.' ”' [Citation.]” (People v. Brady (2010) 50 Cal.4th 547, 561-562 (Brady), quoting People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson).) These three factors, identified by our Supreme Court in Anderson and often referred to as the Anderson factors, “are merely a framework for appellate review; they need not be... afforded special weight, nor are they exhaustive. [Citations.]” (Brady, at p. 562; see also People v. Gonzalez (2012) 54 Cal.4th 643, 663 [applying Anderson factors to an attempted murder].)
Here, according, to defendant, “[t]he circumstantial evidence pointed away from a preexisting plan to kill, and the only reasonable inference is that [he] fired rashly and impulsively.” We disagree. Applying the Anderson factors in this case, and reviewing the record in the light most favorable to the judgment, we conclude the record contains substantial evidence of premeditation and deliberation. (Brady, supra, 50 Cal.4th at p. 561.)
First, as to planning activity, the evidence shows that when defendant exited the Honda, in which he and the other suspects had been fleeing from police following a home invasion robbery, he took a loaded firearm with him. Then, almost immediately, he used that firearm to shoot at other officers before fleeing from the scene on foot. (See, e.g., People v. Elliot (2005) 37 Cal.4th 453, 471 [“That defendant armed himself prior to the attack ‘supports the inference that he planned a violent encounter' ”].) As defendant ran away, Lawrence followed him in his police car, which had its siren and lights activated, remaining approximately 50 feet behind as defendant continued his efforts to escape.
Lawrence's detailed testimony about what happened next is extremely relevant evidence of planning. Just before defendant fired at Lawrence, he “wasn't running in this direction (indicating) and just pointing the gun behind him and shooting indiscriminately. He had momentum and was sprinting to get away from the police. And then his momentum fully stopped, and then he turned to totally face my vehicle, elevated his hand, and fired a round directly at me (demonstrating). So it was more so than just randomly shooting behind and pointing a gun behind him as he's trying to flee the area (indicating).” The evidence also shows that defendant repeated this same series of acts a second time before he reached the fence and climbed over.
Based on these facts, a rational trier of fact could have found that defendant twice made the decision-even as he was sprinting away-to stop, turn around to squarely face Lawrence, raise his gun, and fire a shot directly at Lawrence, who was chasing him in a police car. That the time preceding each act of shooting at Lawrence was relatively short does not negate a finding that the shootings were a result of defendant's preexisting reflection. (See Brady, supra, 50 Cal.4th at p. 561; see also id. at pp. 553-554, 563-564 [rational trier of fact could conclude that defendant, who was on supervised release and illegally possessed a firearm, “rapidly and coldly formed the idea to kill” police officer to avoid arrest “after a period of reflection, ” even though he shot officer within minutes of officer shining spotlight on his car].)
Second, we have already touched on defendant's preexisting motive in Part I., ante, which provided support for jury's finding of an intent to kill Lawrence. Those facts likewise provide substantial evidence of motive from which a rational trier of fact could find premeditation and deliberation. As noted, defendant committed a home invasion robbery earlier that night and at the time he attempted to kill Lawrence, he was trying to escape from police on foot following a car chase. He had just attempted to murder another officer after exiting the getaway car with a gun in hand. Once Lawrence, in a police vehicle with lights and sirens activated, began to pursue defendant as he sprinted away, the evidence shows that defendant twice stopped in his tracks and took the time to turn, aim, and shoot directly at Lawrence before turning back around and resuming his flight until he was able to reach and scale a nearby fence.
From this evidence, a rational trier of fact could have concluded that defendant made the decision to murder Lawrence to evade capture by police after participating in a home invasion robbery and shooting at other officers. (See Brady, supra, 50 Cal.4th at p. 562 [defendant had motive to kill police officer following a traffic stop since officer's potential discovery of his illegal possession of a firearm “could have led to defendant's arrest and incarceration”]; People v. Salas (1972) 7 Cal.3d 812, 824-825 [trier of fact “could reasonably have inferred that defendant from the beginning planned to kill anyone interfering with the successful perpetration of the robbery and could reasonably conclude that defendant killed [police officer as he fled the robbery] in accordance with that plan with the purpose of avoiding apprehension and a long prison term”].)
Third, as to manner of killing, this is a case of attempted murder, and the evidence does not show the type of close-range killing described in many cases. (See, e.g., People v. Halvorsen (2007) 42 Cal.4th 379, 422 [victims “were shot in the head or neck from within a few feet, a method of killing sufficiently ‘ “particular and exacting”' to permit an inference that defendant was ‘acting according to a preconceived design' ”].) Because, here, defendant was in the process of fleeing when he made the decision to kill Lawrence as he followed defendant in his car while keeping a distance of approximately 50 feet between them, defendant necessarily had to shoot from some distance away toward a moving car. However, the fact that he took the time to stop and aim at Lawrence before shooting, rather than merely turning and shooting at Lawrence as he ran, and the fact that he did this twice, as previously noted, provides evidence of premeditation and deliberation. While the evidence of defendant's method of attempting to kill Lawrence is not as strong as that of planning and motive, it still supports the jury's finding of premeditation and deliberation. (See Anderson, supra, 70 Cal.2d at pp. 26-27 [inference of motive, together with facts either showing planning or particular manner of killing reflecting a preconceived design would “support an inference that the killing was the result of ‘a pre-existing reflection' and ‘careful thought and weighing of considerations' rather than ‘mere unconsidered or rash impulse hastily executed' ”]; cf. Brady, supra, 50 Cal.4th at p. 562 [Anderson factors “are merely a framework for appellate review” and need not be “afforded special weight”].)
In conclusion, considering the totality of the evidence presented at trial, substantial evidence supported the jury's finding that defendant acted with premeditation and deliberation when he attempted to murder Officer Lawrence. (See Brady, supra, 50 Cal.4th at pp. 561-562.)
For the same reasons discussed in Part I., ante, regarding the evidence supporting the jury's finding of intent to kill, defendant's reliance on Tran is also misplaced with respect to the evidence of premeditation and deliberation. (See Tran, supra, 47 Cal.App.4th at p. 772.)
II. Trial Court's Alleged Failure to Understand Its Sentencing Discretion
Defendant contends the trial court misunderstood its discretion at sentencing when it ordered him to serve the indeterminate and determinate prison terms consecutively, which he argues requires a limited remand for resentencing.
A. Trial Court Background
At defendant's sentencing hearing, the trial court first addressed the indeterminate counts: as to count 1, the premeditated attempted murder of Officer Lawrence, the court imposed an indeterminate term of 15 years to life in prison, along with a 20-year gun use enhancement. As to count 2, the attempted murder of Officer Saunders, the court imposed an indeterminate term of life in prison with the possibility of parole, along with a 20-year gun use enhancement. The court then stated that it “has a further decision to make as to whether or not those two sentences should run consecutively or concurrently. I do find that they are separate acts of violence and that those sentences will run consecutively. It would be a closer call if we were talking about the offenses involving Officer Saunders and Officers Schwerin, but we're not. This is Officer Lawrence and Officer Saunders who were not co-occupants of the same police vehicle that came under fire....”
The court then addressed the determinate counts: as to count 7, the assault on Officer Lawrence, the court selected the aggravated term of 9 years, with a 20-year gun use enhancement, but because the assault involved the same act as the attempted murder, it stayed the sentence in count 7 pursuant to section 654. Likewise, as to count 8, the assault on Officer Saunders, the court selected the 9-year term and added the gun use enhancement, but because the assault involved the same act as the attempted murder, it stayed the sentence pursuant to section 654.
As to count 9, the assault on Officer Schwerin, the court again selected the aggravated term of 9 years and the 20-year gun enhancement, but because there was no section 654 issue, it deemed count 9 the principal term under the determinate portion of the sentence. The court then stated: “That term would have to be served first, and by law any indeterminate terms or the block of sentencing involving the indetermina[te] terms is served consecutively to the block of sentencing involving the determina[te] terms.” (Italics added.) The court's statement and sentencing decision italicized above is the one at issue here.
Finally, as to counts 10 and 11, the robberies of Christina E. and Kenny S. the court imposed aggravated 9-year terms in addition to 10-year gun use enhancements as to both counts. The court then said: “I'm going to exercise my discretion that those shall be served concurrently with the sentence in [c]ount [9] involving Officer Schwerin....”
B. Legal Analysis
“ ‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.]” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Under section 669, subdivision (a), “[l]ife sentences, whether with or without the possibility of parole, may be imposed to run consecutively with... any other term of imprisonment for a felony conviction.” (Italics added.) It is thus clear from the statute that trial courts have discretion to order determinate and indeterminate terms to be served either concurrently or consecutively. (See In re Maes (2010) 185 Cal.App.4th 1094, 1100.) If the court does choose to impose consecutive terms, however, “the determinate term of imprisonment shall be served first....” (§ 669, subd. (a); see Maes, at p. 1100.)
Here, defendant argues that the trial court did not understand it had discretion under section 669 to order him to serve the indeterminate and determinate prison terms concurrently, but instead wrongly believed that, “by law, ” defendant was required to serve those terms consecutively. Therefore, according to defendant, because the court failed to exercise its sentencing discretion, remand is required to enable the court to exercise its discretion on this question. (See People v. Gutierrez, supra, 58 Cal.4th at p. 1391.)
Immediately before the court sentenced defendant, the prosecutor argued that the two indeterminate murder terms should be served consecutively. The prosecutor then stated, “[w]ith respect to the determina[te] terms, I believe that at least the primary determina[te] term should also be sentenced consecutive to the indeterminate terms, because it's entirely separate.” Although it appears that the prosecutor expected one of the two robbery counts to be declared the primary determinate term, his point was that the court could and should exercise its discretion to order the blocks of determinate and indeterminate terms to be served consecutively.
The court then proceeded to sentencing, stating, inter alia, that the assault on Schwerin, the principal determinate term, “would have to be served first, and by law any indeterminate terms or the block of sentencing involving the indetermina[te] terms, ” the attempted murders of Lawrence and Saunders, “is served consecutively to the block of sentencing involving the determina[te] terms.”
“ ‘[A]bsent a showing to the contrary, the trial court is presumed to have known and followed the applicable law and to have properly exercised its discretion.' ” (People v. Galvez (2011) 195 Cal.App.4th 1253, 1264 (Galvez).) In Galvez, the appellate court addressed a similar claim that the trial court had failed to exercise its discretion when it ordered the indeterminate term to be served consecutively with the determinate term. The defendant based his claim on the trial court's answer to defense counsel's question whether there was authority that the indeterminate sentence “ ‘has to begin after the determinate sentence is completed.' ” (Ibid.) The trial court responded, “ ‘I believe that's the way... the Department of Corrections deals with that. I think that's based on authority.' ” (Ibid.) The appellate court “presume[d] that in the above quoted colloquy the trial court was merely advising defense counsel of the rule, ” set forth in section 669, that when a life sentence and determinate terms are ordered to be served consecutively, the determinate term must be served first. (Galvez, at p. 1264.)
In this case, considering the argument of the prosecutor at the sentencing hearing, in which he advocated for the determinate and indeterminate terms to run consecutively, as well as the entirety of the court's subsequent explanation of its sentencing choices and the fact that the judge is “a veteran member of the bench” (Galvez, supra, 195 Cal.App.4th at p. 1265), we believe the most reasonable reading of the court's statement is that it had decided to order the block of indeterminate terms to run consecutively to the block of determinate terms, but then expressed only its understanding that “by law, ” i.e., under section 669, subdivision (a), the block of determinate terms would have to be served first, followed by the block of indeterminate terms. (See Galvez, at p. 1264; In re Maes, supra, 185 Cal.App.4th at p. 1100.)
Thus, the issue that defendant could have raised in the trial court, but did not, was the court's failure to fully articulate its sentencing choice, i.e., that defendant would serve the blocks of indeterminate terms consecutive to the blocks of determinate terms, and its further failure to state on the record its reasons for ordering consecutive rather than concurrent terms under section 669, subdivision (a). (See California Rules of Court, rule 4.406(a), (b)(5) [trial court must state its reasons for imposing consecutive sentences].) This issue, however, has not been preserved for appeal due to defendant's failure to request clarification or otherwise object on that ground in the trial court. (See People v. Scott (1994) 9 Cal.4th 331, 353 [waiver doctrine applies to “claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices, ” including its failure “to state any reasons” for its choice].)
Having found that the trial court understood and exercised its sentencing discretion, a remand for resentencing is unnecessary.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RICHMAN, J., STEWART, J.