Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF092448A & SF077839A
BLEASE, Acting P. J.
Defendant was charged with numerous offenses, including attempted murder of his girlfriend, Elida Mejia and her daughter, R., after Mejia reported that defendant had fired several shots into her car while she and her daughter were inside. However, Mejia changed her testimony at trial, claiming neither she nor her daughter had been in the car when defendant fired the shots. As a result, the jury acquitted defendant of the attempted murder charges, as well as a charge of shooting into an occupied vehicle, but found him guilty, inter alia, of assault with a firearm against Mejia, shooting at an unoccupied vehicle, and child endangerment.
References to an otherwise undesignated section are to the Penal Code. In addition to the charges noted, the jury found defendant guilty of misdemeanor possession of a firearm (§ 12025, subd. (a)), being a felon in possession of a firearm (§ 12021, subd. (b)(1), possession of methamphetamine for sale (Health & Saf. Code, § 11378, transportation of methamphetamine (Health & Saf. Code, § 11379), and possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)). The trial court sentenced defendant to a total prison term of 19 years and four months.
Defendant’s arguments on appeal focus on the sufficiency of the evidence presented to support the assault and child endangerment convictions. He also asserts instructional error, and appeals the imposition of the upper term sentence for his firearm use enhancement, arguing the sentence violates his constitutional rights as set forth in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).
FACTUAL AND PROCEDURAL BACKGROUND
At 1:52 a.m. on July 7, 2004, the Stockton Police Department received a 911 emergency call from Mejia. She told the operator that she and her daughter were in her car while defendant was shooting bullets into the car. As Mejia was talking to the operator, she said defendant was still shooting, and was getting in his black Cadillac Escalade. She then said he had turned around and was trying to escape. Mejia started following defendant, indicating she did not want him to escape because she wanted to press charges. Mejia and her daughter could both be heard crying, and Mejia told the operator she was shaking. Mejia told the operator she and defendant had been in an argument. He was kicking her, so she started hitting him, at which point he pulled out a gun. She told the operator they were arguing because he was with another woman.
Officer Anthony Perry responded to Mejia’s call. He found Mejia and her daughter standing outside Mejia’s vehicle. Both were crying. There were two bullet holes on the passenger side of Mejia’s vehicle, behind the passenger door. Mejia told Perry that defendant shot at her car three times while she and her daughter were in it. Mejia told Perry she wanted an emergency restraining order against defendant, which Perry obtained for her.
Officer Christopher Friedmann interviewed Mejia the morning of the incident for a little over an hour. She told him she had gone to a bar with her daughter because she received a call that defendant was there. Defendant was with another woman. Defendant and Mejia went outside and were arguing. At some point, Mejia slapped defendant in the face, and he kicked her several times. She hit the hood of his car, then went back to her car, got into it, and shifted it into gear. Defendant went to his Escalade, then walked up to her car with a gun in his hand. He pointed the gun at the car and fired three times. Two shots hit the passenger side of Mejia’s car. She drove around the block, and when she drove by the bar again, defendant began shooting again. She called the police, then followed defendant as he drove away.
At the preliminary hearing, Mejia’s testimony was consistent with her 911 call and the story she gave the officers. However, her testimony at trial was significantly different. At trial, Mejia again testified that after she and defendant went outside the bar they were arguing and she hit his car. After that, she went back to her car and stood by it, but did not get into it. She saw defendant shoot into the car, but she was not in it. Her daughter was not inside the car either, because she had taken her out to take her inside the bar and show the girl her new “mommy.” After defendant shot into her car she and her daughter got into the car and drove away. She made a U-turn to go back, and she saw him shoot once, but could not tell if he was shooting into the air or at her. She went around the block and saw another muzzle flash. She watched him and saw two more muzzle flashes, at which point she called 911. She then proceeded to follow him.
She told the responding officer that she wanted an emergency protective order not because she was afraid of defendant, but because she “was just trying to be a bitch.” She told the officers what they wanted to hear because she was mad at defendant.
Officers Joseph Aguilar and Wesley Grinder, who stopped defendant after Mejia’s 911 call, searched defendant’s Escalade. In the car they found a .380 caliber gun with two bullets in it, three baggies of crystal methamphetamine weighing a total of 40 grams, a cell phone, nine small Ziploc baggies in one location and 18 in another, a digital scale with white residue on it, and approximately $22,700 in cash. When the officers went back to their police car, they found defendant had spit all over the front compartment of the vehicle.
At the police station, defendant was placed in an interview room and strip searched. His clothing was searched more closely, and another $822.00 was found in his pockets and wallet, as well as a 9 millimeter Luger bullet in his pocket. During the search, defendant placed his hands on top of his head and urinated on the carpet in the interview room while he said, “oh, fuck, this is cool.”
Defendant testified on his own behalf. He said none of the money in the sock came from drug sales. He said the money in the sock was money he had collected to buy a taco truck. Nine thousand dollars was from his own pocket, his sister had given him $5,000, and his dad’s girlfriend gave him $10,000. He was buying the truck from a man named Gustavo. He did not know Gustavo’s last name. He went to Gustavo’s the afternoon before the incident, but Gustavo was not there. Defendant admitted some of the money in his pocket came from drug sales.
Defendant said he was in the bar when Mejia came in upset and yelling. Mejia grabbed him and dragged him outside. They argued and she slapped and kicked him. She started hitting the Escalade. Defendant heard Mejia’s daughter crying in the car. He went to the car to calm the girl. Defendant tried to push Mejia into her car, but she was kicking him. She then grabbed a gun from under the seat. He backed off. Mejia went to get her daughter out of the car and put the gun down. Defendant took the gun, and Mejia started chasing him.
Defendant was on one side of the car and Mejia was on the other side. She opened the door for her daughter and pulled her out. Mejia reached into the car and grabbed what defendant thought was a knife. When defendant told a friend not to let them in the bar, Mejia turned around and swung at defendant with what defendant thought was the knife in her hand. Defendant took “my gun” from out of his waist band and shot at the back window of the car. The window did not break, so defendant shot again and hit the glass with the gun at the same time. Defendant told Mejia, “I ain’t playing neither,” and “[y]ou better get your ass home now.”
Mejia and her daughter jumped in the car and left. Mejia made a U-turn and came back. Defendant shot the gun into the air. Mejia came back again, and he shot into the air again twice.
Defendant claimed the drugs found in his car were given to him at the bar by a man named Francisco Hernandez. He was not aware he had a bullet in his pocket. He had purchased the pants from Goodwill, and the bullet may have been there when he bought them. He admitted spitting on the patrol car. He did it because he was mad that the officers were taking his money. He also admitted urinating in the interview room. He told the officers he needed to use the restroom, but they would not let him.
Defendant’s sister, Lourdes Jaurigue, was a college student, but she withdrew from school the summer her brother got arrested. She gave her brother $5,000 of the financial aid money she received from the college so he could by a taco truck.
Frederico Tafoya testified he had known defendant since middle school. On the night of the incident, he was at the same bar as defendant. Defendant was with a woman they knew from high school. At some point, Mejia came in the bar and was screaming and yelling. She was escorted outside. Tafoya looked out the door and saw Mejia taking her daughter out of the car and pulling her, telling her she was going to show her who her mommy was. Tafoya saw Mejia with a knife, “or something like that”, and saw her chasing defendant around. Tafoya heard gunshots, but never saw defendant with a weapon.
DISCUSSION
I
Child Endangerment
Defendant was charged with violating section 273a, subdivision (a), felony child endangerment.
The abstract of judgment incorrectly states defendant was convicted of violating section 273, subdivision (A)(1). We will direct the trial court to correct this clerical error.
Section 273a is an “omnibus statute” that proscribes four kinds of conduct. (People v. Sargent (1999) 19 Cal.4th 1206, 1215.) Pursuant to section 273a, it is a crime for “[a]ny person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in a situation where his or her person or health is endangered. . . .”
Defendant argues there was insufficient evidence that: (1) R. was in a position of danger when he fired the gun, or (2) R. suffered mental or physical harm as a result of his actions. We disagree.
In reviewing the evidence to determine whether it is sufficient to support the verdict, we view the entire record in the light most favorable to the judgment, and presume in support of the verdict the existence of every fact the jury reasonably could have deduced from the evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1156.) The evidence is sufficient to support the verdict if, so viewed, a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Wilson (2006) 138 Cal.App.4th 1197, 1201.)
The jury was instructed as to the second type of proscribed conduct listed in the statute when the court instructed that the offense required proof the defendant, “willfully caused or willfully and as a result of criminal negligence, permitted a child to suffer unjustifiable physical pain or mental suffering;” and that his “conduct occurred under circumstances likely to produce great bodily harm or death.” Defendant’s first argument with respect to the sufficiency of the evidence on this count goes to the requirement that the conduct was “committed under circumstances or conditions likely to produce great bodily harm or death . . . .” (People v. Odom (1991) 226 Cal.App.3d 1028, 1032.)
Actual physical injury is not an element of the crime of felony child endangerment. (People v. Wilson, supra, 138 Cal.App.4th at p. 1197.) Moreover, because the interest protected by section 273a is “the lives of highly vulnerable children,” the term “likely” in the context of the statute does not mean that death or serious injury is probable. (Id. at p. 1204.) Instead, it means “a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death.” (Ibid.)
Defendant argues there was no evidence R. was in danger because there was no evidence of where R. stood when he fired the shots into the car, or how far she stood from the car. The circumstances here were that defendant was shooting a gun in a public place (next to a bar) in close proximity to Mejia’s six-year-old daughter.
There was sufficient evidence from which the jury could deduce that defendant’s shooting a gun under such circumstances produced a serious and well-founded risk of great bodily harm to the child. Several possibilities come to mind. Shooting a gun under such circumstances in such a public place could reasonably lead to responding gunfire by someone else. People, especially children, do not always stay in one place, so that although defendant did not aim the gun at the child, she nevertheless could have been in the line of fire. Finally, bullets ricochet, such that a bullet fired in one direction, may end up in an entirely different place. We conclude these circumstances created a serious and well-founded risk of great bodily harm or death.
We also find sufficient evidence that R. experienced unjustified mental suffering. The circumstantial evidence of this suffering was the 911 tape on which the jury heard R. crying, the responding officers’ testimony that R. was crying, tearful, nervous and upset, and the fact that R. was so distraught at trial that she began crying within seconds of beginning her testimony, and was never able to testify.
Defendant’s claim that there was no evidence he, as opposed to Mejia, caused R.’s mental suffering is unavailing. The prosecution’s burden is met if it produces evidence from which it may be reasonably inferred that defendant’s actions were a substantial factor in producing the result. (People v. Scola (1976) 56 Cal.App.3d 723, 726.) There was sufficient evidence that defendant engaged in actions that would reasonably result in mental suffering to the child. The fact that someone else may have also engaged in such acts is immaterial.
Defendant contends that expert testimony was required to prove R. suffered mentally. He cites People v. Smith (2005) 35 Cal.4th 334 in support of this proposition. People v. Smith did not hold that expert testimony is required to prove mental suffering.
People v. Smith, supra, was a death penalty case in which the victim was tortured and killed. Expert testimony was admitted attesting to the three stages children who are sadistically molested experience. (35 Cal.4th at p. 363.) The court held such evidence admissible as expert testimony pursuant to Evidence Code section 801, which permits such testimony if it is on “a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .” (Evid. Code, § 801, subd. (a); People v. Smith, supra, 35 Cal.4th at p. 363.) Thus, People v. Smith merely held that expert testimony in such a situation would be of assistance, not that it was indispensable to prove mental suffering.
We are aware of no case holding mental suffering cannot be proved absent expert testimony. Although expert testimony may be of assistance, the mental suffering of a child subjected to conditions likely to produce great bodily harm or death is something a reasonable person can recognize.
II
Assault Instruction
Defendant argues the trial court erred by instructing the jury pursuant to the latest version of CALJIC No. 9.00. The trial court instructed: “In order to prove an assault, each of the following elements must be proved: [¶] A person willfully and unlawfully committed an act which by its nature would probably and directly result in the application of physical force on another person; [¶] Number two, the person committing the act was aware of the facts that would lead a reasonable person to realize that as a direct and natural and probable result of this act that physical force would be applied to another person; [¶] And, number three, at the time the act was committed the person committing the act had the present ability to apply physical force to the person of another.”
The most recent version of CALJIC No. 9.00 is based on the Supreme Court case, People v. Williams (2001) 26 Cal.4th 779 (Williams), which held that “assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Id. at p. 790.)
Defendant cites our decision in People v. Wright (2002) 100 Cal.App.4th 703 (Wright), in which we expressed the opinion that Williams incorrectly defined the mental state for assault “as a species of negligent conduct . . . .” (Wright, supra, at p. 706.) Nevertheless, we recognized in Wright that we are bound by the decisions of the Supreme Court. (Ibid.) Accordingly, we find no error in the trial court’s instructions.
III
Assault
Defendant argues there was insufficient evidence to convict him of assault with a firearm on Mejia. He argues that since he was acquitted of firing into an occupied vehicle, the jury necessarily predicated the assault with a firearm charge on the act of firing into Mejia’s unoccupied vehicle. He argues that firing into an unoccupied vehicle would not probably and directly result in the application of physical force, nor was he aware of facts that would lead a reasonable person to realize that physical force would be applied to Mejia as a direct and probable result of his act.
However, defendant is incorrect in assuming that the jury necessarily predicated the assault conviction on the act of firing into an unoccupied vehicle. There was also evidence defendant shot at or near Mejia’s vehicle after she left the bar the first time and drove back toward defendant. Mejia testified she saw the muzzle flash, but was unsure whether or not defendant was pointing the gun at her. Officer Friedmann testified Mejia told her defendant fired at her again when she drove around the block and as she was following him in her car. Mejia told Friedmann she saw the muzzle of the gun flash.
Pursuant to Williams, supra, the jury could have reasonably concluded that defendant shot at or near Mejia’s car as she was driving, and that such an act “by its nature would directly, naturally and probably result in the application of physical force against another.” (26 Cal.4th at p. 790.) Also pursuant to Williams, a defendant’s subjective belief as to whether his acts might result in physical force against another are immaterial because the test is whether a reasonable person would find that the act would directly, naturally and probably result in a battery. (Id. at p. 788, fn. 3.)
IV
Cunningham
Defendant argues it was error for the trial court to impose the upper term for the firearm use enhancements attached to the child endangerment count. He argues the imposition of the upper term of three years violated his constitutional right to have the jury find every fact necessary for the imposition of the upper term, pursuant to Blakely v. Washington (542 U.S. 296 [159 L.Ed.2d 403] and Cunningham. We disagree.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (147 L.Ed.2d 435, 455) (Apprendi), the United States Supreme court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The high court extended this rule to California’s Determinate Sentencing Law in Cunningham, supra, where it held that a defendant’s Sixth and Fourteenth Amendment right to a jury trial was violated when a judge imposed an upper term sentence based on the judge’s, rather than the jury’s, finding of aggravating circumstances. The court held that the middle term sentence is the maximum sentence a judge may impose unless the facts supporting the aggravating circumstances are found true by a jury. (549 U.S. at p. ___ [166 L.Ed.2d at p. 876].)
Recently, the Supreme Court decided People v. Black (2007) 41 Cal.4th 799, in which it reasoned that because the existence of a single aggravating circumstance is legally sufficient under California’s determinate sentencing scheme to make a defendant eligible for the upper term, the existence of a single aggravating circumstance that has been established in accordance with constitutional requirements makes the upper term the statutory maximum term. (Id. at p. 813.) Accordingly, the court held that, “imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions.” (Id. at p. 816.)
In California and elsewhere, courts have interpreted Apprendi to mean that, not only is no jury trial required as to the precise fact of a prior conviction, but also no right to jury trial exists on matters more broadly described as recidivism. (People v. McGee (2006) 38 Cal.4th 682, 700-709 and cases cited.)
The trial court gave several reasons for the upper term, including the fact that defendant’s prior convictions were numerous and of increasing seriousness, and he was on probation and his prior performance on probation was unsatisfactory. Since these factors were based upon defendant’s record of prior convictions, his sentence is not unconstitutional.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that defendant was convicted in count 14 of violating Penal Code section 273a, subdivision (a), not section 273, subdivision (A)(1). The trial court is further directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SIMS, J., DAVIS, J.