Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County No. VCF156441. Ronn M. Coulliard, Judge.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Terry Farmer, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
Defendant Luis Miguel Menera fired several shots into a car stopped at a stoplight. Consequently, he was convicted of the attempted murder of Vicente Tostado (count one), assault with a semiautomatic firearm upon his former girlfriend, Elizabeth Gonzalez (count two), assault with a semiautomatic firearm upon Gonzalez and defendant’s 11-month-old daughter (M) (count three), and shooting at an occupied vehicle (count four). Numerous firearm and great bodily injury enhancements were also found true. Defendant appeals, claiming the evidence is insufficient to support his attempted murder conviction, the court erred in not defining semiautomatic weapon, the assault instructions erroneously allowed the jury to convict him without finding that he knew victim M was in the car when he fired, and the court made numerous sentencing errors. We will reverse count three for prejudicial instructional error.
Facts
Gonzalez and defendant broke up in November of 2005. On one occasion before they broke up, defendant told Gonzalez that if he saw her dating another man, he would kill her and the other man.
On the evening of December 10, 2005, Gonzalez was in the front passenger seat of a car driven by Tostado. Eleven-month-old M was in the back seat strapped into her car seat. The car was stopped at a stoplight at a major intersection. Defendant approached the car from the rear passenger side. With his hand he hit the car, the rear window, and the back passenger window. He came to the front passenger window and yelled to Gonzalez to get out, but she did not do so.
As defendant walked to the driver’s side of the car, Gonzalez took M out of her car seat and embraced her on her lap. Defendant tried to open the driver’s door, but the door was locked. Defendant stepped back, pulled out a gun, and fired approximately five times. Tostado turned and hugged Gonzalez and M in an effort to protect them.
Ashley Reynoso was working in a nearby restaurant. She heard a loud bang. She saw a man standing at the driver’s side of the car. She heard a shot and saw a glow inside the car. The men wrestled. Reynoso saw a woman holding a baby exiting the car. Reynoso beckoned them into the restaurant. The gunman ran off and the car containing Tostado drove away.
Aaron Kaminski was seated in a car at the intersection when he noticed a man run up to a vehicle, open the door, and attack the driver. He saw Gonzalez get out of the front passenger side, open the rear passenger door and take a baby out of the car, and run toward the restaurant. The driver drove off and defendant fled on foot. Kaminski kept up with the fleeing defendant while he called 911.
At a nearby construction site, Visalia police officer Marc Gonzales was in the course of investigating the shooting when he heard a yelling noise. Defendant then said, “I give up,” and came out with his hands in the air. Another officer was looking for the gun, and defendant told the officers that the gun was an AMT .380 and it was nearby with his cell phone. The gun was located.
While being transported by the police, defendant said he did not know the baby was in the car when the shooting occurred. He said he could not see the baby because of the dark tint on the windows.
M was treated at the hospital. She had multiple lacerations to her face and a wound under her left eye that contained a piece of metal. The metal was removed and the wound was stitched closed.
The jury found that defendant did not inflict great bodily injury on M.
Tostado suffered three gunshot wounds, one to his collar bone and the other two to his buttocks. He suffered a collapsed lung. His condition when he was admitted was guarded but not critical.
Robert Douglas, an identification technician with the Visalia Police Department, identified the firearm that was seized near defendant’s cell phone as an AMT .380 semiautomatic firearm. Douglas described what characteristics make a weapon a semiautomatic firearm. In addition, Douglas testified that there was a bullet hole in the front passenger fender of the car Vicente was driving. While the hole could have been made at another time, the damage appeared fresh.
DISCUSSION
I. Sufficiency of the Evidence for Attempted Murder
Defendant was found guilty of willful, deliberate and premeditated attempted murder. Defendant contends the evidence shows that his decision to shoot Tostado was made rashly, without reflection, and without any intent to kill. He claims that his attempted murder conviction should be reversed for insufficiency of the evidence or, in the alternative, the finding that the attempted murder was willful, premeditated and deliberate must be reversed for insufficiency of evidence.
“‘The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]’” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572.) In considering the evidence in a light most favorable to the judgment, we “presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 623.) The evidence must show a deliberate intention to unlawfully kill a human being, i.e., express malice. (People v. Bland (2002) 28 Cal.4th 313, 327.)
Defendant posits a series of scenarios to support his argument that the evidence does not support a finding that he intended to kill Tostado. For example, he argues that the first shot was fired through glass and the glass was likely to shatter and deflect the bullet, so it cannot be inferred that defendant shot at Tostado’s neck, head, or chest. He argues that once the glass was gone, he could have gotten into the car and pressed the gun against Tostado’s neck, head or chest, ensuring that he would kill Tostado, but he did not do this. He also argues that he shot Tostado in the buttocks, not aiming for a vital organ but aiming to humiliate him.
The authorities relied on by defendant to support his argument are not on point. In People v. Ratliff (1986) 41 Cal.3d 675, the defendant shot his gun twice at close range during a robbery, killing one victim and wounding another. In determining that the trial court erred in failing to require the jury to find that the defendant had the specific intent to kill, the Supreme Court commented that the evidence was not conclusive on the issue of the defendant’s intent and the evidence could support a finding by the jury that, while he had the intent to shoot, his intent may have been merely to disable and not to kill. The court did not hold that the evidence was insufficient to support an intent to kill. (Id. at pp. 695-696.)
Similar instructional error occurred in People v. Johnson (1981) 30 Cal.3d 444. In Johnson, the victim reached into the defendant’s car after the victim had blocked the defendant’s passage and uttered racial obscenities. The defendant fired two shots at close range at the victim. The jury was not instructed that they must find that the defendant entertained an actual intent to kill. In this context, the court found that the shooting of the victim at close range did not conclusively demonstrate an intent to kill and thus the instructional error was not harmless. (Id. at pp. 447-449.) Again, as in Ratliff, the court did not find the evidence was insufficient to support a finding that the defendant intended to kill.
Finally, in Braxton v. United States (1991) 500 U.S. 344 the defendant pleaded guilty to charges less than attempted murder. Part of the stipulation for his guilty plea was that he shot at a marshal. He was subject to an enhanced sentence if it was established that he attempted to murder one of the marshals. The United States Supreme Court held that the stipulation was not sufficient to establish that he attempted to murder one of the marshals because it was subject to two reasonable interpretations: that he shot across the room to frighten the marshals before they entered the room or that he shot across the room at the marshals when they entered the room. Again, as in Ratliff and Johnson, the court did not find the evidence was insufficient to support a finding that defendant intended to kill; it found that the evidence was subject to more than one interpretation. (Id. at pp. 349-351.)
As previously set forth, under the standard of review for sufficiency of the evidence, we “presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.” (People v. Mincey, supra, 2 Cal.4th at p. 432.) The jury could reasonable conclude that defendant intended to kill Tostado. Defendant had told Gonzalez before they broke up that he would kill her and any man she was with if he saw them together. Defendant moved from the passenger side of the vehicle to the driver’s side when he saw that Gonzalez was the passenger. He shot Tostado three times at close range.
Sufficient evidence supports defendant’s conviction for attempted murder.
Next, defendant argues that the evidence was insufficient to support the finding that the attempted murder was premeditated and deliberate. Defendant “relies upon the oft-cited test found in People v. Anderson (1968) 70 Cal.2d 15, 26-27, which sets forth three categories of evidence for a reviewing court to consider with respect to premeditation and deliberation: (1) prior planning activity; (2) motive; and (3) the manner of killing. These factors are ‘not a sine qua non to finding first degree premeditated murder, nor are they exclusive.’ [Citation.]” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462.)
“An intentional killing [or attempted killing] is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citations.] However, the requisite reflection need not span a specific or extended period of time.” (People v. Stitely (2005) 35 Cal.4th 514, 543.)
Defendant showed up armed with a semiautomatic firearm at the intersection where Gonzalez, Tostado, and M were stopped in the car. From this, the jury could infer that it was not mere coincidence that defendant showed up armed at this particular time and place, but that he planned his actions. Defendant had a motive to kill Tostado because he was with defendant’s former girlfriend and the mother of his child and defendant had previously expressed that he would kill Gonzalez and her male companion if he were to see her with someone. Finally, the manner of the attempted killing demonstrates premeditation and deliberation. Defendant walked up to the passenger side of the car; when he learned that Gonzalez was the passenger, he walked to the driver’s side of the car. He shot Tostado at close range three times, hitting him in the collar bone, which is near many vital areas, resulting in the collapse of Vicente’s lung, and hitting him twice in the buttocks. The fact that Tostado had the presence of mind to lean over and protect Gonzalez and M and then received wounds to his buttocks does not detract from the lethal method of defendant’s attack on Tostado.
Substantial evidence supports the jury’s finding that the attempted murder was premeditated and deliberate.
II. Failure to Instruct on Definition of a Semiautomatic Firearm
Defendant was convicted of two counts of assault with a semiautomatic firearm. Defendant contends these convictions must be reversed because the court never defined the term “semiautomatic.” Defendant argues that the error was prejudicial because the jury may not have believed the expert witness and may not have found that the expert’s description of the gun matched the legal definition.
“The rules governing a trial court’s obligation to give jury instructions without request by either party are well established. ‘Even in the absence of a request, a trial court must instruct on general principles of law that are…necessary to the jury’s understanding of the case.’ [Citations.] That obligation comes into play when a statutory term ‘does not have a plain, unambiguous meaning,’ has a ‘particular and restricted meaning’ [citation], or has a technical meaning peculiar to the law or an area of law [citation].” (People v. Roberge (2003) 29 Cal.4th 979, 988.)
We need not determine if it was error for the trial court to not give the jury a definition of a semiautomatic firearm because error, if any, was harmless. This would be so even if we characterized the error as one omitting an element of the crime from the jury’s consideration. Under this higher standard, the error is prejudicial under state law unless “there is ‘no reasonable probability that the outcome of defendant’s trial would have been different had the trial court properly instructed the jury.’” (People v. Cole (2004) 33 Cal.4th 1159, 1208.) Under federal law the error is prejudicial “unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury’s verdict.” (Ibid.)
There was no evidence or inferences from the evidence that the firearm was anything other than a semiautomatic firearm. Defendant was positively identified as the perpetrator, and he did not contend otherwise at trial. He was arrested shortly after the incident and pointed out his gun to the arresting officers. Defendant’s gun was seized and identified at trial by an expert as a semiautomatic firearm. No one disputed that it was a semiautomatic firearm and, in fact, during cross-examination of the expert, defense counsel began his question with, “This being a semi-automatic pistol….”
There is no reasonable probability that the outcome of defendant’s trial would have been different had the trial court instructed the jury on the definition of a semiautomatic firearm.
III. Assault Instructions
Defendant was convicted of one count of assault with a semiautomatic firearm against Gonzalez and one count of assault with a semiautomatic firearm against M. (Counts two and three.) The verdict forms named the victims of each count separately. The jury was instructed pursuant to CALCRIM No. 875 as follows:
“The defendant is charged [in Counts two and three] with assault with a semiautomatic firearm.
“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person;
“2. The defendant did that act willfully;
“3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;
“AND
“4. When the defendant acted, he had the present ability to apply force with a semiautomatic firearm;
“& 5. The defendant did not act in self-defense or defense of others.
“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
“The People are not required to prove that the defendant actually touched someone.
“The People are not required to prove that the defendant actually intended to use force against someone when he acted.
“No one needs to actually have been injured by defendant’s act. But if someone was injured, you may consider that fact, along with all the other evidence, in deciding whether the defendant committed an assault, and if so, what kind of assault it was.” (Emphasis added.)
Defendant contends the conviction of assault against M must be reversed because the instruction as given allowed the jury to find him guilty of assaulting M even if he did not know she was in the car at the time he shot into the car. Defendant claims that a defendant may not be convicted of assault when he genuinely does not know there is anyone nearby. He alleges that the instruction permitted the jury to find him guilty of assaulting M as long as it was shown that he was aware of facts that would lead a reasonable person to realize his acts would, naturally and probably, lead to the application of force against “someone,” for instance Tostado or Gonzalez. Defendant points out that the evidence was in dispute whether defendant knew M was in the car. Defendant does not claim that the evidence is insufficient to support the assault against M.
In People v. Williams (2001) 26 Cal.4th 779, the defendant and King were competing for Nicholson’s affections. Defendant was at Nicholson’s home when King arrived. Defendant told King to stay away and then defendant walked to his vehicle and removed and loaded his shotgun. Defendant fired a warning shot into the rear wheel well of King’s truck. At the time defendant fired his gun, he knew King was crouched near the rear fender of the truck. King’s two sons were in the vicinity of the King’s truck, but defendant testified he did not know they were there when he fired the shots. (Id. at pp. 782-783.)
In addition to being charged with one count of shooting at an occupied motor vehicle, the defendant was also charged with three counts of assault with a firearm; one count for King and a count each for King’s two sons. The jury found the defendant guilty of assaulting King, but deadlocked on the remaining counts. (People v. Williams, supra, 26 Cal.4th at p. 783.)
The defendant appealed, claiming the assault instruction was erroneous because it incorrectly stated the mental state required for the offense. The Supreme Court agreed and held “that assault requires actual knowledge of the facts sufficient to establish that the defendant’s act by its nature will probably and directly result in injury to another.” (People v. Williams, supra, 26 Cal.4th at p. 782.)
“The instruction given in Williams was defective because it would ‘permit a conviction premised on facts the defendant should have known but did not actually know.’ In other words, under the instruction a jury could ‘convict a defendant for assault even if he did not actually know the facts sufficient to establish that his act by its nature would probably and directly result in a battery.’” (People v. Riva (2003) 112 Cal.App.4th 981, 997, fns. omitted.)
“In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known.” (People v. Williams, supra, 26 Cal.4th at p. 788.)
In finding the instructional error to be harmless, the court in Williams found that it was not in dispute that defendant knew King was crouched by the truck when he fired a shot at the truck and thus he “undoubtedly knew those facts establishing that his act by its nature would directly, naturally and probably result in a battery. The jury’s deadlock on the other assault counts [against the two sons], in which defendant denied actual knowledge that the victims were near the truck when he fired his shotgun, further confirms that the jury was not misled.” (People v. Williams, supra, 26 Cal.4th at p. 790.)
The court in People v. Riva, supra, 112 Cal.App.4th at page 999, referenced the prejudice analysis of Williams and said “The [Williams] court’s analysis of prejudice implies the instructional error would have been prejudicial had the defendant been convicted of assault on the two sons who he did not know were present. But if the error had been found prejudicial in this circumstance it would have been because the defendant was not aware of facts sufficient to establish he knew shooting at the truck could result in physical force against the sons, not because of…lack of proof beyond a reasonable doubt the sons were the targets of his shooting.”
Because the instruction given here would have permitted a guilty verdict based on only a finding that defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone, he could have been convicted of assault on M in the absence of a determination that defendant was aware of facts that would lead a reasonable person to realize that M was present in the car.
The People argue it is not reasonable to believe the jury would have convicted defendant of count three had they believed his conduct was aimed only at Gonzalez and Tostado. The People base their argument on the facts that M was listed in the verdict forms as the victim of count three, there was never any question M. was the victim in count three, and the jury was told to consider each count separately.
We fail to see how respondent’s argument alleviates the instructional error. Listing M as a victim in a separate count does not preclude a finding that defendant knew facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; yet the instruction did not require that the “someone” be M in order for the jury to convict defendant. The error is not because there is a lack of proof that defendant knew M was in the vehicle, but because the instruction allowed a conviction without requiring that defendant was aware of facts sufficient to establish he knew shooting at the car could result in physical force to someone other than Gonzalez and Tostado.
The evidence demonstrated that M was in the back seat of the car when defendant approached. The back windows were tinted. Although Gonzalez testified that she moved M to the front seat during the encounter, Kaminski testified that Gonzalez removed M from the back seat of the car after the shooting and after Gonzalez got out of the car. In addition, defendant made a spontaneous statement to the transporting officer that the windows were tinted and he did not know that M was in the car. The evidence is contradictory on the question of whether defendant had actual knowledge of the requisite facts. The instructional error was not harmless.
IV. Sentencing Errors
Based on our reversal of the conviction in count three (assault with a semiautomatic firearm against M), the matter must be remanded to the trial court for further proceedings, including, at a minimum, resentencing. Regardless of whether the People retry defendant on the reversed count, the court will have to resentence defendant. Thus, the sentencing issues now raised are moot.
We do note that respondent has conceded that the trial court erred when it imposed a term of 15 years to life for the attempted deliberate and premeditated murder and the trial court erred under Penal Code section 654 when it imposed a concurrent term for shooting into an occupied vehicle (count four). At resentencing the court should choose the sentence term in compliance with the United States and California Supreme Courts cases dealing with the imposition of upper terms.
Disposition
The conviction in count three for assault with a semiautomatic firearm against M is reversed and the case is remanded for further proceedings consistent with this opinion. The remaining judgments of conviction are affirmed.
WE CONCUR: WISEMAN, J., LEVY, J.