Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. FBA008347of San Bernardino County, Steve Malone, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
A jury convicted Ruben Feliciano Mendoza (Mendoza) of attempted, premeditated murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a); count 1) and discharge of a firearm at an occupied motor vehicle (§ 246; count 2). The jury found true a firearm enhancement associated with count 1 (§12022, subd. (a)(1)). The trial court sentenced Mendoza to life with the possibility of parole for attempted premeditated murder, imposed a consecutive one-year term for the associated firearm enhancement, and selected the midterm of 5 years for discharge of a firearm, but stayed imposition of sentence on that count pursuant to section 654.
All further statutory references are to the Penal code unless otherwise stated.
Mendoza contends CALCRIM No. 601 violated his constitutional right to due process and a jury trial on all issues because it allowed a jury to find premeditation and deliberation based solely on the intent of his codefendant, which in turn allowed the court to impose a life term under section 664, subdivision (a). We find these contentions meritless. However, Mendoza also contends, and the Attorney General concedes, the trial court erred in depriving him of 206 days of presentence conduct credit. Therefore, we direct the trial court to correct the abstract of judgment to reflect the award of 206 days of presentence conduct credit and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. As modified, the judgment is affirmed.
I
FACTS AND PROCEDURAL HISTORY
On February 13, 2005 Brandon Johnson (Johnson) visited Jessica Crotzer (Crotzer) at a home in Barstow, California. Late that night, Rickey Lamar Armendariz and Mendoza knocked on Crotzer’s front door. She let them in, and when he saw Johnson, Armendariz said, “Who are you?” Johnson said he was just visiting Crotzer, his friend, and then went outside to smoke a cigarette. When he got outside, Johnson noticed a Chevy Tahoe parked in front of the house. He then decided to leave. Johnson got into his car and drove away, but stopped at a nearby gas station to call Crotzer because he wanted to collect the personal belongings he had left at her house. The Tahoe was still in front of the house when Johnson returned to Crotzer’s home.
When Johnson knocked on the front door, Armendariz and Mendoza answered it. Armendariz asked Johnson what he was doing and yelled, “Get the fuck out of here.” Johnson tried to explain that he was just there to get his belongings. However, Mendoza said to Armendariz, “You want to get the heat?”
Johnson assumed Mendoza was talking about getting a gun so he turned around and walked back to his car. Crotzer then came outside and handed Johnson his belongings. Johnson drove away from Crotzer’s home, but a few minutes later he noticed the Tahoe speeding up behind him with its headlights off. Johnson tried to accelerate away from the Tahoe, but Mendoza, who was driving the Tahoe, managed to pull the Tahoe alongside Johnson’s car. Armendariz, who was in the front passenger seat of the Tahoe, pulled out a gun and fired four shots at Johnson. Bullets penetrated the driver’s side door, side window, and the seat of Johnson’s car. One of the four bullets also penetrated Johnson’s left hip. Mendoza sped away from the scene, and Johnson drove to a nearby gas station for assistance. He was eventually transported to the hospital.
Johnson identified Armendariz as the person who shot him, and he told investigators that Mendoza looked like the person who was driving the Tahoe. When investigators questioned Crotzer about the shooting, she admitted that two men she knew only as “L’il Rickey” or “Too Down” and “Worm” came to her house while Johnson was there, and that after Johnson picked up his belongings, Lil Rickey and Worm left her house in an SUV.
After speaking to Crotzer, the investigators went to Mendoza’s mother’s house where they found a Chevy Tahoe like the one described by Johnson. They found and arrested Armendariz at his girlfriend’s apartment. A search of her apartment yielded a loaded semi-automatic handgun hidden underneath a mattress in the bedroom. A gunshot residue (GSR) test performed on Armendariz’s hand uncovered one unique GSR particle. DNA extracted from a drinking straw found at Crotzer’s residence matched a reference sample taken from Mendoza.
Mendoza and Armendariz were tried simultaneously before separate juries. Both defendants were convicted and filed timely appeals. This court previously affirmed Armendariz’s conviction in a nonpublished opinion. (People v. Armendariz (June 30, 2009, G040208) [nonpub.].)
II
DISCUSSION
CALCRIM No. 601
CALCRIM No. 601 states, “If you find the defendant guilty of attempted murder [under Count ______], you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation. [¶] (The defendant/ ) acted willfully if (he/she) intended to kill when (he/she) acted. [¶] (The defendant/ ) deliberated if (he/she) carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to kill. [¶] (The defendant/ ) premeditated if (he/she) decided to kill before acting. [The attempted murder was done willfully and with deliberation and premeditation if either the defendant or or both of them acted with that state of mind.] [¶] The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. [¶] The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved.”
As given by the trial court, CALCRIM No. 601 stated as follows: “If you find the defendant RUBEN FELICIANO MENDOZA guilty of Attempted Murder under Count One, you must then decide whether the People have proved the additional allegation that the Attempted Murder was done willfully, and with deliberation and premeditation. [¶] Defendant RUBEN FELICIANO MENDOZA and/or co-defendant RICKEY LAMAR ARMENDARIZ acted willfully if either of them intended to kill when acting. [¶] Defendant RUBEN FELICIANO MENDOZA and/or co-defendant RICKEY LAMAR ARMENDARIZ deliberated if either of them carefully weighed the considerations for and against the decision to kill and, knowing the consequences, decided to kill. [¶] Defendant RUBEN FELICIANO MENDOZA and/or co-defendant RICKEY LAMAR ARMENDARIZ premeditated if either of them decided to kill before acting. [¶] The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved.” (Italics added.)
Mendoza objected to the court’s modification of CALCRIM No. 601, specifically the challenging the usage of “and/or” and “either of them” on the grounds the modified instruction would cause the jury to attribute Armendariz’s mental state to him. Mendoza requested replacing “and/or” with “and” to avoid jury confusion. The trial court rejected Mendoza’s argument and held as a matter of law, that under section 664 subdivision (a), as interpreted in People v. Lee (2003) 31 Cal.4th 613 (Lee), the jury was not required to find that both Mendoza and codefendant Armendariz personally premeditated and deliberated the attempted murder.
On appeal, Mendoza contends CALCRIM No. 601 violated his constitutional rights to due process and a jury trial because the instruction did not require the prosecution to prove he personally possessed the requisite mens rea of willfulness, premeditation and deliberation. We disagree.
Section 664, subdivision (a), provides, in pertinent part, “If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole....”
Relying on People v. Hernandez (1964) 61 Cal.2d 529, Mendoza argues CALCRIM No. 601 allows the jury to assign criminal liability to an aider and abettor for the mental state of the perpetrator, which he argues offends fundamental concepts of due process, and that imposing criminal sanctions in the absence of a finding the defendant personally harbored a specific mental state offends the fundamental concept of due process. Mendoza’s claim is not unprecedented.
In Lee, the California Supreme Court considered an identical challenge to CALCRIM No. 601 and determined that “as a substantive matter section 664(a) requires only that the murder attempted was willful, deliberate, and premeditated for an attempted murderer to be punished with life imprisonment.” (Lee, supra, 31 Cal.4th at pp. 621-622.) The court found the legislature’s assignment of personal liability to an aider and abettor for premeditated attempted murder reasonable because an aider and abettor necessarily acts with the knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the perpetrator in accomplishing the intended killing. (Id. at p. 624.) Consequently, the court determined, “section 664(a) does not require that an attempted murderer personally act with willfulness, deliberation, and premeditation. It requires only that the attempted murder itself was willful, deliberate, and premeditated.” (Id. at p. 626.)
Thus, as the court stated, “section 664(a) properly must be interpreted to require only that the murder attempted was willful, deliberate, and premeditated, but not to require that an attempted murderer personally acted with willfulness, deliberation, and premeditation, even if he or she is guilty as an aider and abettor.” (Lee, supra, 31 Cal.4th at p. 627.) CALCRIM No. 601 as given by the trial court in this case is consistent with Lee (id. at p. 622), and we are bound by stare decisis to follow this precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456).
Mendoza acknowledges Lee and agrees it was correctly decided. Nonetheless, he argues Lee did not address section 664, subdivision (a) with respect to the constitutional requirements announced by the United States Supreme court in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). According to Mendoza, the factual issue that should have been submitted to the jury was “whether [the defendant himself] engaged in premeditation and deliberation when he aided and abetted Armendariz’s commission of attempted murder.” He asserts that in the absence of a jury finding regarding the crucial issue of whether or not he personally premeditated and deliberated the attempted murder, the court could not impose the life term provided for in section 664, subdivision (a). We disagree.
Apprendi stands for the proposition that any fact (other than the fact of a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 476.) The relevant inquiry is one of effect: “does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” (Id. at p. 494.) We are bound by Apprendi, but conclude Mendoza’s reliance on this case is misplaced.
Here, unlike Apprendi, the trial court made no finding that increased Mendoza’s punishment. Rather, the facts required to impose the enhanced punishment provided for under section 664, subdivision (a) was specifically submitted to the jury. Moreover, the modified version of CALCRIM No. 601 given to the jury satisfies the constitutional requirements of Apprendi. First, the information specifically pled the attempted murder penalty provision regarding willfulness, premeditation and deliberation. Second, the trial court instructed the jury to “decide if the People have proved the additional allegation that the Attempted Murder was done willfully, and with deliberation and premeditation.” Third, the jury was also told that it must find this allegation true beyond a reasonable doubt. Thus, CALCRIM No. 601 does not run afoul of Apprendi.
Presentence Conduct Credits
Mendoza contends, and respondent concedes, the trial court misapplied section 2933.2, which states, “any person who is convicted of murder, as defined in section 187, shall not accrue any credit, as specified in Section 2933.” Under the plain language of the statute, section 2933.2 is inapplicable to attempted murder convictions. Both parties agree that Mendoza is entitled to 1, 471 actual days and 206 days conduct credit. Accordingly, we direct that the judgment of conviction be modified to award him 206 presentence conduct credits.
III
DISPOSITION
The trial court is directed to correct the abstract of judgment to reflect an award of 206 days presentence conduct credits, and to forward the amended abstract to the Department of Corrections and Rehabilitation, Division of Adult Operations. As modified, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, J., FYBEL, J.