Opinion
C083682
04-10-2018
THE PEOPLE, Plaintiff and Respondent, v. ABELINO GONZALEZ NUNEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F08143)
Defendant Abelino Gonzalez Nunez was convicted of attempted first degree murder and eight other charges, in addition to several firearm enhancements. Sentenced to state prison, defendant appeals, contending insufficient evidence supports the jury's finding that he acted with premeditation and deliberation and that the trial court erred in admitting an unidentified declarant's statement under the spontaneous statement exception to the hearsay rule. He further contends his case must be remanded for the trial court to exercise its discretion as to whether to strike the firearm enhancement imposed pursuant to Penal Code section 12022.53, subdivision (b). We disagree with defendant's first two contentions but agree with his last and remand for the trial court to exercise its newly granted discretion to determine whether it is appropriate to strike the firearm enhancement imposed in this case.
All further section references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On December 16, 2013, during the early morning hours, defendant was removed from the premises of the La Cabana nightclub. Jose Luis Aguilar-Ibarra, who worked at La Cabana, escorted defendant to the door. As he was shown out, defendant was yelling and appeared to be intoxicated. Defendant had been drinking steadily throughout the night and at some point argued "with another person [who] was drinking at the bar." The security guard who escorted defendant from inside the bar pushed him outside and told the outside security guards, Jermain Ganaway and Tarrell Joseph, "Don't let him back in the club. He's too drunk." After defendant was out, he stayed in front of the club for about 10 minutes, leaning against a wall and smiling, before walking unsteadily toward the back of the parking lot. Defendant appeared to be extremely intoxicated and was assisted by a female companion, who acted as his "extra pair of legs to help him get where he needed to be."
Approximately 30 minutes later, defendant pulled up slowly in the driver's seat of a red or burgundy four-door Toyota and came to a complete stop in front of La Cabana. Defendant tried to speak to Ganaway in Spanish, but Ganaway could not understand what he was saying. Then, defendant began beckoning Ganaway with his hands to come closer. In response, Ganaway moved a couple of feet closer toward the car and told defendant, "Just go home. You are drunk. Just come back tomorrow. It is a different day." As Ganaway began backing up from the car, he saw defendant pick up a gun that was on the passenger's seat. After raising the gun slowly, defendant pointed the gun at Ganaway's head. Immediately, Ganaway dove to the side, partially behind a brick wall, as defendant fired a shot that raced past Ganaway's face. After the initial gunshot, defendant fired two more shots. After Ganaway dove, he did not see defendant again.
At approximately 1:32 a.m., Sacramento Police Department Officers Maryna Stanionis and Alexander Lemoine, who were traveling in separate police vehicles, were stopped at an intersection across the street from La Cabana. The officers heard two or three loud gunshots coming from La Cabana and saw multiple vehicles leaving the parking lot, including a red Toyota. The red Toyota was one of the first vehicles out of the parking lot, and it stopped at the red light at the interesection across the street from the officers.
Officer Stanionis testified that she proceeded through a red light and drove toward the nightclub. As she approached, she heard someone yelling from the parking lot of La Cabana. Officer Stanionis began a U-turn and contacted an unidentified Hispanic male through her passenger window. Officer Stanionis testified that the man had run toward her, waved at her frantically, and screamed, "[h]ey, hey." Further, he pointed at the red Toyota that was still at the stoplight and said, " 'That's him. That's the guy' " Officer Stanionis never asked for the Hispanic male's name.
After speaking with the man, Officer Stanionis completed her U-turn, and as soon as her headlights were facing the red Toyota, it sped off through the red light and traveled down the street. Defendant drove on the wrong side of the road and drove toward oncoming traffic with no lights on, eventually crashing his vehicle into a truck. Officers Stanionis and Lemoine eventually arrived at the crashed vehicle. After seeing defendant exit the car, the officers chased defendant on foot before finally catching and detaining him. Ganaway and Joseph both participated in a field showup that night and identified defendant as the shooter.
At trial, after Officer Stanionis finished her testimony, the parties argued as to whether the statements by the unidentified, frantic man were admissible under Evidence Code section 1240. Defendant's trial counsel argued, "While there is no question that the person, this unidentified male that Officer Stanionis spoke with, was agitated, terrified, frantic, et cetera, there is absolutely no evidence that that person is a percipient witness." Further he argued that "[i]t would be a matter of pure speculation or conjecture, which is prohibited by all the case law, that [declarant] was, in fact, a percipient witness." The prosecutor argued that given the stated time frame of approximately 30 seconds, the man's frantic demeanor, and that the man ran from the La Cabana parking lot, "the circumstantial evidence shows and what he is saying shows he was there, he perceived this." Moreover, "[t]here is just basically not enough time for him to talk to someone else, have a conversation, and then run up and tell us."
The trial court concluded, "With respect to the statements, That's him, that's the guy, his pointing at the red car and saying, Go get him, I do find that those are spontaneous statements . . . ." The court reasoned that "the statements made by the unidentified person were blurted out and were made when the person was very excited, frantic, terrified . . . and that the stress of the emergency and the consequential excitement is what caused the unidentified person to speak as he did."
Defendant was sentenced to an aggregate prison term of 24 years, eight months, to be served consecutive to an indeterminate term of seven years to life. Defendant filed a timely notice of appeal.
DISCUSSION
I
There Was Sufficient Evidence To Support
The Attempted First Degree Murder Conviction
Defendant argues there was insufficient evidence to establish that the attempted murder was deliberate and premeditated. We disagree.
In reviewing a sufficiency of the evidence claim, we review the evidence in the light most favorable to the judgment to determine whether there is substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.) We presume the existence of every fact in support of the judgment that the jury could reasonably deduce from the evidence. (Ibid.)
For purposes of determining whether there is sufficient evidence of premeditation and deliberation, we do not distinguish between attempted murder and completed first degree murder. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462-1463, fn. 8.) Premeditated and deliberate means considered beforehand and arrived at after careful thought and weighing of considerations for and against the proposed action. (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
In arguing that the evidence was insufficient, 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 in evaluating proof of premeditation and deliberation: facts related to (1) defendant's behavior before the incident that shows planning; (2) any prior relationship or conduct with the victim from which the jury could infer a motive; and (3) the manner of the killing from which the jury could infer defendant intended to kill the victim according to a preconceived plan. He asserts that there was insufficient evidence of the Anderson factors to support premeditation.
Defendant's argument places too much emphasis on Anderson. "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse." (People v. Pride (1992) 3 Cal.4th 195, 247.) "The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (People v. Perez (1992) 2 Cal.4th 1117, 1125.)
There is substantial evidence supporting the jury verdict here. As to prior planning activity, defendant was carrying a loaded gun with him at the time of the incident. (See People v. Villegas (2001) 92 Cal.App.4th 1217, 1223-1224 [holding that there was sufficient evidence to convict a defendant of attempted murder with premeditation in his shooting of a rival gang member, even though the defendant did not plan to kill the victim before he saw him on the day of the incident].) A rational trier of fact could also infer that defendant thought before he acted when he was standing in front of the club for about 10 minutes, leaning against a wall and smiling, before walking unsteadily toward the back of the parking lot. This type of conduct could show that defendant thought before he acted.
Defendant argues "[i]t cannot rationally be inferred that [defendant] engaged in any planning" because "[w]hen he was ejected from the bar, [defendant] was inebriated to the point where he could neither stand nor walk without assistance." This contention is without merit.
As to whether defendant's intoxication made it so that he could not engage in planning the shooting, the details of the shooting provide evidence of a plan. Here, a jury reasonably could infer from defendant's conduct that despite his intoxication, defendant was well enough in charge of his faculties to drive up slowly in front of La Cabana, beckon Ganaway to come closer to him, pick up a gun from the passenger seat, raise the gun slowly, and carefully aim and fire the gun three times at Ganaway's head. Defendant's argument does not establish insufficient evidence, but only suggests an alternative interpretation of the evidence. As a result, we reject this contention.
Moreover, there is proof of motive. Even defendant concedes that the "present case does show some evidence of motive." It was reasonable to infer that defendant was upset about being ejected from the bar and that the shooting was directed at one of the guards because one of the guards threw him out. (See People v. Villegas, supra, 92 Cal.App.4th at p. 1224.) Hence, a rational trier of fact could infer that defendant had something against the security guards based on their affiliation with La Cabana.
The manner of the attempted killing also could be understood to indicate premeditation and deliberation. The fact that defendant, after raising his gun slowly, carefully pointed the gun at Ganaway's head, before firing three rounds toward Ganaway, is sufficiently " 'particular and exacting' " to support an inference that defendant premeditated and deliberated Ganaway's death. (See People v. Thomas (1992) 2 Cal.4th 489, 518 [holding that "[t]he manner of the killings strongly suggest premeditation" because "[b]oth victims were killed by single contact shots, to [one victim's head and another victim's neck], a method sufficiently ' "particular and exacting" ' to warrant an inference that defendant was acting according to a preconceived design]; see also People v. Thompson (2010) 49 Cal.4th 79, 114-115 [concluding that the "manner of killing, a close-range shooting without any provocation or evidence of a struggle, reasonably supports an inference of premeditation and deliberation"].) Moreover, the jury could have found that defendant had sufficient time to premeditate and deliberate killing Ganaway in the time it took defendant to reach over to the passenger seat, pick up the gun, slowly raise it, and point it at Ganaway's head. (See People v. Mayfield, supra, 14 Cal.4th at p. 767 [observing that "[t]he process of premeditation and deliberation does not require any extended period of time" and " '[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly' "].) We conclude, therefore, that there is substantial evidence supporting the jury's conclusion that defendant formed and acted on a deliberate plan to kill.
II
The Trial Court Did Not Err In Admitting The Unidentified Declarant's
Statement Under The Spontaneous Statements Exception To The Hearsay Rule
Defendant contends that the trial court erred when it allowed a statement by the unidentified man who told Officer Stanionis, " 'That's him. That's the guy,' " and pointed to the red vehicle and identified it as red. Defendant contends that because it was not shown that the declarant was a percipient witness, his statements and pointing do not fall within the spontaneous statements exception to the hearsay rule. This contention is without merit.
Evidence Code section 1240 provides as follows: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
Although direct evidence of the declarant's percipient observation is not a necessary condition, there must be at least a "persuasive inference" that the declarant perceived the event. (People v. Phillips (2000) 22 Cal.4th 226, 236; see also People v. Blacksher (2011) 52 Cal.4th 769, 810 [noting that "[t]he Evidence Code does not use the term 'witnessed by.' Rather, it refers to an act, condition, or event 'perceived by' the declarant"].) However, "the fact that the declarant was a percipient witness cannot be purely a matter of speculation or conjecture." (Phillips, at p. 236; see also People v. Poggi (1988) 45 Cal.3d 306, 318 [noting that spontaneous statements may include the " ' "sincere expression" ' " of the speaker's " ' "actual impressions and belief " ' " ].) Moreover, a statement qualifying as an excited utterance is admissible even if the declarant is unidentified. (People v. Anthony O. (1992) 5 Cal.App.4th 428, 436.)
"As this is a factual question, we will uphold the trial court's determination if it is supported by substantial evidence. [Citations.] We review for abuse of discretion the ultimate decision whether to admit the evidence." (People v. Phillips, supra, 22 Cal.4th at p. 236.)
Defendant relies on Ungefug v. D'Ambrosia (1967) 250 Cal.App.2d 61 in arguing that the trial court erred in admitting Officer Stanionis's testimony about what the unidentified man said to her, but his reliance is misplaced. In Ungefug, the Court of Appeal found the trial court erred by admitting as a spontaneous statement an ambulance driver's testimony that he had heard someone say "the victim had been hit twice, once by another car that failed to stop." (Id. at p. 64.) In that case, there was no "evidence that there were eyewitnesses to the accident or that there were others in the immediate vicinity of the scene of its occurrence. Not only was declarant unidentified, there was no evidence that the ambulance driver even saw him or her." (Id. at p. 68.) The court reasoned that "[d]eclarant may have been merely repeating what others, including defendant, might have said. Moreover, the 'excitement' which prevailed at the scene when the ambulance arrived may have been engendered by people seeing the decedent lying on the pavement rather than from having observed the accident." (Ibid.) Based on this, the court found "the inference, if any, that the declarant actually witnessed the accident is not persuasive in the instant case," partly because there was "no evidence that there were eyewitnesses to the accident or that there were others in the immediate vicinity of the scene of its occurrence." (Id. at p. 68.)
In this case, on the other hand, from the time that Officer Stanionis heard the gunshots until the time she began her pursuit of the suspect identified by the declarant, less than 30 seconds elapsed. Hence, there was far less time for people who witnessed the shooting to be replaced by people who witnessed only its aftermath. Moreover, the evidence here was not that there was simply a condition of excitement prevailing at the scene; rather, Officer Stanionis came face-to-face with a man who appeared frantic and terrified and who immediately told the officer, " 'That's him. That's the guy.' " Because the declarant was "frantic and terrified" within seconds of a shooting and immediately, without prompting, told a responding officer who the shooter was, we conclude that these facts give rise to a "persuasive inference" that the declarant perceived the shooting. Thus, the court acted within its discretion in this case when it admitted the declarant's spontaneous statements.
III
Defendant Is Entitled To Remand For The Trial Court To
Consider Striking The Firearm Enhancement
The jury found defendant personally used a firearm pursuant to section 12022.53, subdivisions (b) and (c) during the commission of the attempted murder, and the trial court sentenced him to 20 years for the subdivision (c) enhancement. The jury also found defendant personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d) during the commission of the assault. The court stayed imposition of sentence for the assault and the attached firearm enhancements because it found that conviction to be "an alternative statement" to the attempted murder conviction.
The abstract of judgment mistakenly indicates that defendant was sentenced to 20 years pursuant to section 12022.53, subdivision (b). In fact, the trial court sentenced him to 20 years pursuant to subdivision (c) of that same section.
The trial court was required to impose sentence on the assault conviction, including a sentence for the firearm enhancement attached to that count, before it stayed execution of that sentence. (See People v. Duff (2010) 50 Cal.4th 787, 796; see also People v. Alford (2010) 180 Cal.App.4th 1463, 1468.) Because it did not, the sentence on the assault conviction as it currently stands is unauthorized. Since we are remanding defendant's case for the trial court to exercise its informed discretion when imposing the firearm enhancements, we remand for resentencing as to this count as well instead of modifying the sentence on this appeal.
At the time of defendant's sentencing, the enhancement statutes provided that "[n]otwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (§§ 12022.5, subd. (c), 12022.53, subd. (h).) Thus, at the time of defendant's sentencing, the trial court had no power to strike the firearm enhancements. Under a recent amendment to sections 12022.5 and 12022.53, however, which was effective January 1, 2018, trial courts have the power "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
Defendant contends the recent amendments to sections 12022.5 and 12022.53 retroactively apply to him and his case should be remanded to the trial court so that it can exercise its discretion to decide whether to strike the firearm enhancements found true under these sections. The People concede that the amendments are retroactive but argue remand is not appropriate because "there is no reason to believe that the sentencing court would exercise its new discretion to strike [defendant's] firearm enhancement." (Bolding omitted.) We accept the People's concession but agree with defendant that remand is necessary.
Under In re Estrada (1965) 63 Cal.2d 740, "when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature." (People v. Francis (1969) 71 Cal.2d 66, 75-76.) As the Supreme Court stated in Estrada, "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Estrada, at p. 745.)
Here, the amendments to subdivision (h) of section 12022.53 and subdivision (c) of section 12022.5, which took effect before the judgment in this case was final, necessarily reflects a legislative determination that the previous bar on striking firearm enhancements was too severe, and that trial courts should instead have the power to strike those enhancements in the interest of justice. Moreover, because there is nothing in the amendment to suggest any legislative intent that the amendment would apply prospectively only, we must presume that the Legislature intended the amendment to apply to every case to which it constitutionally could apply, which includes defendant's case.
Our inquiry does not end here, however, because, although the People concede the amendments to sections 12022.5 and 12022.53 apply to defendant, they argue remand is unnecessary because "there is no reason to believe that the sentencing court would exercise its new discretion to strike [defendant's] firearm enhancement." (Bolding omitted.) The People explain that the trial court had multiple sentencing options and the discretion to give defendant a reduced sentence. Because it did not, "the record clearly indicates that the court 'would not . . . have exercised its discretion to lessen the sentence' with respect to [defendant's] firearm enhancements."
The People rely on People v. Gutierrez (1996) 48 Cal.App.4th 1894 to illustrate the point. In Gutierrez, the trial court "did not indicate that it had discretion to strike" a serious or violent felony conviction under the three strikes law. (Gutierrez, at p. 1896.) While the appeal was pending, the Supreme Court held in People v. Superior Court (Romero) (1996) 13 Cal.4th 497 that trial courts have the discretion to strike a serious or violent felony conviction. (Id. at pp. 529-530.) Nevertheless, the court in Gutierrez decided "no purpose would be served" in remanding that case for resentencing because the trial court had "stated that imposing the maximum sentence was appropriate" and that " 'this is the kind of individual the law was intended to keep off the street as long as possible.' " (Gutierrez, at p. 1896.)
We disagree with the People's argument and find their reliance on Gutierrez misplaced. Although the trial court considered its sentencing options carefully to come up with an appropriate prison sentence, it did so without knowing the extent of its discretion and the Legislature's policy determination that previous sentences for firearm enhancements were too harsh. With the enactment of the amendments, the Legislature signaled punishment under the former sections were "too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act." (In re Estrada, supra, 63 Cal.2d at p. 745.) The trial court was not aware the Legislature thought punishment was too severe under the statutes applicable at the time. Such knowledge would have informed the sentencing court's decision, perhaps not with regard to the length of defendant's sentence, but surely with regard as to the composition of the sentence.
" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citation.] 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.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Because the court did not know the scope of its discretion, we conclude remand is necessary.
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court for it to exercise its discretion as to whether to strike the firearm enhancements under sections 12022.5, subdivision (c) and 12022.53, subdivision (h).
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Mauro, J.