Opinion
C086794
10-15-2019
THE PEOPLE, Plaintiff and Respondent, v. LAURENCIO MARTINEZ QUINTERO et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F03952)
This case arises out of three separate shootings on the same day that resulted in the death of one person and injuries to several others. Following a joint jury trial, codefendants Laurencio Martinez Quintero and Richard Gutierrez were found guilty of first degree murder (Pen. Code, § 187 subd. (a)), willful and malicious discharge of a firearm at an inhabited dwelling house (§ 246), and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury additionally found Quintero guilty of first degree residential burglary (§ 459) and willful discharge of a firearm in a grossly negligent manner (§ 246.3, subd. (a)). The jury also found true the firearm enhancement allegations alleged against both defendants. (§ 12022.53, subds. (b), (c), & (d).) In a bifurcated proceeding, the trial court found true the allegations that each defendant had a prior serious felony conviction (§ 667, subd. (a)) that qualified as a strike under the "Three Strikes" law (§§ 677, subds. (b)-(i), 1170.12). The trial court sentenced Quintero to an aggregate state prison term of 60 years 8 months to life, and Gutierrez to an aggregate state prison term of 50 years to life.
Undesignated statutory references are to the Penal Code.
On appeal, defendants contend their first degree murder convictions must be reduced to second degree murder because substantial evidence does not support the jury's finding of a premeditated and deliberate murder, the firearm enhancements must be stricken as unauthorized, the jury was improperly instructed on the murder count and the firearm enhancements, and the trial court imposed an unauthorized sentence by failing to award legally mandated custody credit. Quintero additionally contends the trial court's true finding on the prior conviction allegations violated his constitutional right to a jury trial under the Sixth Amendment, and the trial court erred in failing to stay sentence under section 654 on his conviction for willful discharge of a firearm in a grossly negligent manner. Finally, Gutierrez contends there are errors in the sentencing minute order and abstract of judgment that must be corrected.
We will modify the judgment by striking the jury's true findings on two of the firearm enhancements (§ 12022.53, subds. (b) & (c)) as to both defendants and awarding each defendant 990 days of custody credit. We will also order the trial court to make corrections to the abstracts of judgment and to correct any errors in its internal records. As modified, we affirm the judgment.
FACTUAL BACKGROUND
We provide a summary of only the facts pertinent to the resolution of this appeal. Additional information relevant to the claims raised on appeal is discussed post.
The First Shooting
Shortly after 5:00 a.m. on June 13, 2015, approximately 36 bullets were fired by multiple guns (at least four) at a two-story apartment complex located on Rio Linda Boulevard in Sacramento. One of the bullets struck Stacy Norman in the back, resulting in her death. Two other residents of the apartment complex suffered burns from bullets that dropped onto them from the ceiling. The evidence at the scene indicated that the gunshots were fired from the parking lot of the apartment complex and near the front entry of the complex. The evidence also indicated that some of the bullets were .38-caliber hollow-points, and that some of the bullets may have been fired by a high-powered rifle.
ShotSpotter, an acoustic gunshot detection and location system installed in the area, detected 36 gunshots within a matter of seconds. The first gunshot was detected at 5:00:25 a.m.
At trial, the parties stipulated that Gutierrez was the person depicted in a photograph posted to his Facebook page on June 2, 2015. In that picture, Gutierrez is holding a firearm that had physical features consistent with an AR-15-style rifle or an M16- or M4-style rifle.
During the investigation into the shooting, a woman approached an officer at the scene and indicated that she had information about the shooting. The woman explained that she was walking on Rio Linda Boulevard when she saw a black BMW with tinted windows and no license plates make two U-turns. The second time the car made a U-turn, its headlights were off. The car drove past her and parked on the street near the apartment complex located on Rio Linda Boulevard. Three people got out of the car and walked toward the parking lot of that apartment complex. Shortly thereafter, gunshots were fired. When the shooting stopped, three people ran from the parking lot and got into the BMW. The car immediately drove off. Although the woman could not give a detailed description of the three people, she noted that the driver and the front seat passenger were both wearing "hoodie[s]" (i.e., hooded sweatshirts). She also noted that the front passenger was a "light skinned" man.
The Second Shooting
Less than two minutes later, another shooting occurred about a mile away at the apartment complexes located on Beaumont Street (collectively, Beaumont Apartments). Numerous bullets were fired by multiple guns. The evidence at the scene indicated that gunshots had been fired at and from the two-story apartment complex located on the north side of Beaumont Street (building A), which shared a parking lot with the two-story apartment complex on the south side of Beaumont Street (building B). One of the residents of Beaumont Street building B, Belinda G., was shot in her arm.
ShotSpotter detected the first gunshot at 5:01:59 a.m.
Belinda G.'s son, George Halaway, lived in an upstairs apartment in Beaumont Street building A. There were .40-caliber bullet casings found on the balcony and underneath the balcony in front of his apartment. A black BMW belonged to one of Belinda G.'s sons or her nephew. Halaway and his brother, Xavier, were among the people that drove the car. Xavier lived with Belinda G.
The record does not disclose Xavier's last name.
J.Q., Quintero's developmentally disabled brother, lived in Beaumont Street building B. At times, Quintero, Gutierrez, and Joshua Smith stayed at J.Q.'s apartment and took care of him. Smith was Quintero's friend and Gutierrez's godparent. Smith considered Gutierrez to be family; he referred to Gutierrez as his little cousin or nephew.
Quintero (also known as "Goppy"), Gutierrez (also known as "Ritchie"), and Smith (also known as "Huero") are sometimes referred to in the record by their nicknames. For purposes of consistency and clarity, we refer to these individuals by their last names.
When Halaway was interviewed by the police, he talked about the events that occurred at his apartment complex in the late evening and early morning hours before his mother (i.e., Belinda G.) was shot. Halaway explained that his cousin, Raymond Adams, had stopped by and said he had been "jumped" by his girlfriend's brothers. Adams asked Halaway for a gun because he and Quintero were considering "going back over there" and doing a "drive by." Halaway told Adams that he was " 'stupid' " for going to his girlfriend's house after she had been beaten up by a woman at Halaway's apartment complex a few days earlier.
The interview was recorded and played for the jury at trial.
Halaway claimed that he did not give Adams a gun. However, he admitted that he went to Belinda G.'s apartment and retrieved a .40-caliber handgun for himself because he figured there was "gonna be problems."
As Halaway was walking away from Adams, he heard Quintero say to Adams, " 'Are you ready?' " Shortly thereafter, Halaway heard a car start up. At that point, Xavier (i.e., Halaway's brother) and a man named Rudy showed up. Xavier told Belinda G. to go upstairs to Halaway's apartment.
When the shooting at the Beaumont Apartments started, Halaway, Belinda G., Xavier, and Rudy were on the balcony in front of Halaway's apartment. After Belinda G. was shot, someone at Halaway's apartment returned fire. Halaway estimated that the shooting occurred around an hour after Quintero and Adams left his apartment complex.
The Third Shooting
Around 5:36 p.m. on the same day, June 13, 2015, a second shooting occurred at Beaumont Street building B. When Cesar G., the maintenance man, returned to his apartment, he found his front door kicked in and bullet holes inside his apartment. There were five bullet holes in his bedroom door, three bullet holes in his bedroom wall, a bullet hole in his mattress, and a bullet fragment inside his bedroom. Five .45-caliber bullet casings were found inside his living room.
Lydiana Gorostiza
Approximately two weeks later, the Sacramento Police Department was notified by authorities in Placer County that a woman named Lydiana Gorostiza had information about the shootings. Gorostiza had come to the attention of the authorities in Placer County after her ex-boyfriend, Warren Galsote, and Jason Benson were found dead on June 25, 2015. Galsote and Benson both had been shot in the head and set on fire.
Gorostiza was interviewed by detectives with the Sacramento Police Department and testified at trial under a grant of immunity. During her testimony, Gorostiza explained that she had dated Galsote from February 2015 to mid-June 2015 and had met some of his friends, including his close friends Benson and Smith. Gorostiza further explained that Smith had introduced her to Gutierrez at J.Q.'s apartment, and that she had also met Quintero. On "quite a few occasions," Gorostiza saw Smith with a handgun; he carried a silver revolver or a bigger, black automatic handgun. She also saw Quintero with a small, automatic black handgun on three occasions, including the day of the shootings. When asked, Gorostiza said that Galsote made money by selling drugs—methamphetamine and opiates.
In her police interview, Gorostiza said that Quintero and Smith always carried guns.
Gorostiza gave the following account of the events surrounding the shootings: On two occasions prior to the day of the shootings, she and Galsote spent the night at J.Q.'s apartment. On one of those nights, Galsote, Smith, and Quintero talked about an altercation that had occurred the previous night. Smith explained that a woman who he had been drinking with got into a fight with a resident of J.Q.'s apartment complex. When several "Paisas"—a term Gorostiza testified is slang used to refer to Mexicans from Mexico—came to pick the woman up, words were exchanged. According to Gorostiza, "it didn't go so well" when this happened. In her police interview, which was played for the jury, Gorostiza explained that the woman was the girlfriend or ex-girlfriend of one of the Paisas who was a "drug lord," and that the woman had been beaten up during the altercation.
Without accepting the accuracy of Gorostiza's translation of the term, our subsequent references to the term are necessary when the witness or the attorney questioning the witness used the term "Paisas."
Because Smith considered the Paisas to be a threat, he had Gorostiza purchase a box of .38-caliber hollow-point bullets for him. Gorostiza gave the bullets to Smith and then drove him to J.Q.'s apartment in her white Ford Expedition sport-utility vehicle (SUV). When Smith got out, he took the bullets with him.
After Gutierrez facilitated the purchase of a black automatic handgun for Galsote from a man at a gas station, Galsote left a "sack" of methamphetamine with Smith at J.Q.'s apartment and then went to San Jose with Gorostiza. In her police interview, Gorostiza said that Galsote left a "QP" of methamphetamine with Smith. When asked whether "QP" meant quarter pound, she said, "I don't know ounces and pounds." Although unsure, Gorostiza believed that Galsote gave Smith a quarter ounce of methamphetamine.
When Gorostiza and Galsote returned to Sacramento the following day, they picked Smith up and then drove toward J.Q.'s apartment complex. As they approached the complex, Gorostiza saw yellow tape around the fence and a police car parked out front. Gorostiza did not stop. Instead, she complied with Galsote's request to continue driving.
Later that day, Gorostiza picked Gutierrez up from a house. Smith and Galsote were with her. Smith, who was nervous, very upset, and angry, repeatedly asked Gutierrez to tell him where his gun was. In response, Gutierrez said that he and Quintero had used the gun to "shoot up" the Paisas's house on Rio Linda Boulevard but told Smith not to worry because the gun was getting "cleaned." Although unsure, Gorostiza thought Gutierrez mentioned that the Rio Linda Boulevard shooting was in retaliation for the shooting that occurred at the Beaumont Apartments.
In her police interview, Gorostiza said that both Quintero and Gutierrez indicated the shooting at the Beaumont Apartments happened before the Rio Linda Boulevard shooting. However, as pointed out by the prosecutor and both defense counsel in closing argument, ShotSpotter showed that the Rio Linda Boulevard shooting occurred first.
As Gorostiza was driving on Rio Linda Boulevard, she saw yellow tape around an apartment complex and police officers out front. Gutierrez and the other passengers instructed her to turn and go a different way. In response, Gorostiza pulled over, did a U-turn, and drove the opposite way.
After Gorostiza dropped Gutierrez off at a house, she drove to a "taco place" near J.Q.'s apartment. Gorostiza stayed at that location while Smith and Galsote walked to J.Q.'s apartment. Around 30 minutes later, Galsote called Gorostiza and asked her to pick him up. Shortly thereafter, Galsote called again and asked Gorostiza to bring him his gun.
When Gorostiza entered J.Q.'s apartment, Galsote was yelling at J.Q., demanding to know where his methamphetamine was. Galsote grabbed his gun from Gorostiza and pointed it at J.Q.'s face. He then questioned J.Q. for the next 15 to 20 minutes. Because Gorostiza did not "like what [she] was seeing," she left the apartment during the questioning and went to her SUV. Over the course of the questioning, J.Q. gave various explanations as to what happened to the methamphetamine. He initially claimed he did not know where it was. However, he later said that the maintenance man (i.e., Cesar G.) had come into his apartment, and that Cesar G. may have stolen the methamphetamine. He also said that he had gotten high with Cesar G.
While Gorostiza was sitting inside her SUV, she saw Quintero, Galsote, Smith, and J.Q. walk to Cesar G.'s apartment. Galsote and Smith pounded on the door with their guns. Galsote then kicked the door in and all four men went inside. Shortly thereafter, five gunshots were fired. When the shooting stopped, Quintero, Galsote, and Smith ran to Gorostiza's SUV. They got in and Gorostiza immediately drove off. According to Gorostiza, Quintero was not armed when he entered Cesar G.'s apartment.
Later that evening, Gorostiza, Galsote, and Quintero met up with Benson. Around 1:00 a.m., Benson went to a Walmart and bought a gun cleaning kit, which he gave to Galsote. Thereafter, Galsote and Benson cleaned a black automatic handgun. Around 3:30 a.m., Gorostiza, Galsote, and Quintero checked into a Motel 6. While they were at the motel, Quintero told Gorostiza that he had gone to the Paisas's place on Rio Linda Boulevard and shot it up. He described the shooting and indicated he was worried there might be witnesses. He talked about "going down" for the shooting and said that "[h]e didn't care what was gonna happen to him." Although Quintero indicated that at least one other person was with him during the shooting, he did not identify any other person that was involved in the shooting.
During her police interview, Gorostiza explained that Quintero believed he was going to prison for the Rio Linda Boulevard shooting. He told her that he was " 'hot' " and " 'going down for the Rio Linda thing' " because " '[t]hey have [his] face.' " He said, " 'I ain't got nothin' to lose. I'm goin' to prison . . . for life.' "
Other Relevant Evidence Adduced at Trial
When J.Q. was interviewed by the police, he said that Quintero and "Ricky" (presumably, Gutierrez) had problems with some Mexicans that lived nearby, and that they had left his apartment prior to the shooting at the Beaumont Apartments because of "some problem" with the Mexicans.
As previously indicated, Gutierrez is also known as Ritchie. There is nothing in the record to suggest that "Ricky" was anyone other than Gutierrez.
At trial, J.Q. testified under a grant of immunity. He testified that the Mexicans were causing him problems, "messing" with him. He further testified that the Mexicans were friends with Cesar G., and that Cesar G. would sometimes get mad at him. J.Q. noted that his brother (i.e., Quintero) did not like it when people were not nice to him, and that Quintero was aware that Cesar G. would get mad at him. According to J.Q., the shooting at the Beaumont Apartments occurred around an hour or two after Quintero left. However, he told the police that the shooting occurred right after Quintero and Gutierrez left his apartment to go talk to some Mexicans.
The .38-caliber hollow-point bullets Gorostiza purchased for Smith matched six bullet casings found on the ground at the Rio Linda Boulevard apartments. Two expended .38-caliber hollow-point bullets found at the scene were determined to have been fired from the same gun that was used to kill Galsote and Benson. At the time of trial, Smith was charged with murdering Galsote and Benson. DNA evidence as well as cell phone and cell site evidence linked Smith to the murders.
A review of cell phone records revealed that Quintero's cell phone connected with cell towers in the area of the Rio Linda Boulevard and Beaumont Street shootings multiple times in the early morning hours of June 13, 2015, including a phone call placed at 4:01 a.m. All of the calls were placed to Smith and went to his voicemail. Cell phone records indicated that Smith's cell phone was connecting to cell towers in the South Sacramento area, which is not near the location of the shootings. Smith's mother and girlfriend lived in South Sacramento. At the time of the shootings, Smith stayed with his girlfriend, Victoria Gomez, "[e]very few days." He also stayed with his mother at times. At trial, Gomez testified that Smith spent the night at her house on June 12, 2015.
In June 2015, an eyewitness saw a white SUV with Idaho plates parked at the Beaumont Apartments when he heard gunshots in the afternoon. He then saw three men get into the SUV.
Gorostiza met Galsote online in November 2014. In February 2015, she drove from Idaho to California to meet him in person. As previously indicated, she drove a white Ford Expedition.
DISCUSSION
1.0 Sufficient Evidence Supports the First Degree Murder Convictions
Gutierrez contends that his conviction for first degree murder must be reduced to second degree murder because substantial evidence does not support the jury's finding of a premeditated and deliberate murder. Quintero joins in this contention. We conclude there is ample evidence in the record to support the first degree murder convictions.
1.1 Applicable Legal Principles
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains 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.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Edwards (2013) 57 Cal.4th 658, 715.)
" 'A murder that is premeditated and deliberate is murder of the first degree.' [Citation.] ' "In this context, 'premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' " ' [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." ' [Citations.] '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 . . . .' " (People v. Potts (2019) 6 Cal.5th 1012, 1027.)
"We normally consider 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.] If the evidence of preexisting motive and planning activity by itself is sufficient to support the first degree murder conviction on a theory of premeditation and deliberation, we need not review the evidence concerning the manner of killing." (People v. Jennings (2010) 50 Cal.4th 616, 645-646; see People v. Streeter (2012) 54 Cal.4th 205, 242 [the three factors are not exclusive, nor are they invariably determinative; instead, they are simply intended to guide an appellate court's assessment as to whether the evidence supports the inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse].) "A first degree murder conviction will be upheld when there is extremely strong evidence of planning, or when there is evidence of motive with evidence of either planning or manner." (People v. Romero (2008) 44 Cal.4th 386, 401 (Romero).)
1.2 Analysis
Viewing the evidence in the light most favorable to the judgment, we conclude a rational trier of fact could have found, beyond a reasonable doubt, that the killing of Norman was premeditated and deliberate. The evidence that defendants arrived at the Rio Linda Boulevard apartment complex carrying loaded guns demonstrates planning. (People v. Salazar (2016) 63 Cal.4th 214, 245; Romero, supra, 44 Cal.4th at p. 401; People v. Felix (2009) 172 Cal.App.4th 1618, 1627.)
Further, there was evidence from which the jury could infer motive. The evidence at trial showed that defendants had problems with some Mexicans (referred to by the slang term Paisas) who lived near J.Q.'s apartment complex. There was evidence the Paisas were causing J.Q. problems, "messing" with him. There was also evidence that defendants left J.Q.'s apartment shortly before the shooting because of some problem with the Paisas.
Finally, the fact that approximately 36 bullets were fired by multiple guns at the apartment complex in which defendants believed the Paisas resided showed a deliberate intent to kill. (See People v. Ramos (2004) 121 Cal.App.4th 1194, 1208 [firing numerous rounds at an occupied vehicle showed a deliberate intention to kill the occupants]; People v. Vang (2001) 87 Cal.App.4th 554, 558, 564 [spraying an occupied residence with bullets from high-powered assault rifles manifests a deliberate intention to kill the inhabitants].)
We note that it does not appear Norman was among the intended victims of the Rio Linda Boulevard shooting. Regardless, the first degree murder convictions were proper under the doctrine of transferred intent, either on a direct perpetrator theory of liability or on a direct aiding and abetting theory of liability. " 'Under the classic formulation of California's common law doctrine of transferred intent, a defendant who shoots with the intent to kill a certain person and hits a bystander instead is subject to the same criminal liability that would have been imposed had " 'the fatal blow reached the person for whom intended.' " [Citation.] In such a factual setting, the defendant is deemed as culpable as if he had accomplished what he set out to do.' " (People v. Bland (2002) 28 Cal.4th 313, 320-321 (Bland); see People v. Gonzalez (2012) 54 Cal.4th 643, 653 ["A person who acts intending to kill victim A but who accidentally kills victim B instead may be guilty of B's murder under the doctrine of transferred intent."].)
2.0 Two of the Three Firearm Enhancements Should be Stricken
The jury found defendants guilty of various offenses including willful and malicious discharge of a firearm at an inhabited dwelling house in violation of section 246. The jury also found true the firearm enhancements alleged in connection with this offense (§ 12022.53, subds. (b), (c), & (d)). Gutierrez contends the enhancements must be stricken as unauthorized. Quintero joins in this contention. The People concede that the enhancements imposed under section 12022.53, subdivisions (b) and (c) must be stricken but maintain that the enhancement imposed under section 12022.53, subdivision (d) was proper. We agree with the People.
Section 246 is one of the listed offenses for which a firearm enhancement may be imposed under section 12022.53, subdivision (d). (§ 12022.53, subd. (d).) However, section 246 is not among the enumerated offenses for which a firearm enhancement may be imposed under section 12022.53, subdivision (b) or (c). (§ 12022.53, subds. (a), (b) & (c).) Accordingly, we will modify the judgment by striking the jury's true findings on these enhancements and direct the trial court to prepare corrected abstracts of judgment reflecting this modification.
3.0 Alleged Instructional Error
3.1 Murder Charge
Quintero contends the trial court erred by failing to instruct the jury that in order to find him guilty of first degree murder based on an aiding and abetting theory of liability, it was required to find that both he and the actual perpetrator had the specific intent to kill (i.e., express malice). Quintero further contends the trial court erred in instructing the jury on implied malice murder. Gutierrez joins in these contentions. We find no instructional error.
3.1.1 Additional Background
At the close of trial, the trial court instructed the jury, in relevant part, as follows: The jury was told that murder is a specific intent crime, and that the prohibited act and specific intent necessary to find a defendant guilty of murder was explained in the instruction for that crime. (CALCRIM No. 252.) The jury was further told, pursuant to the pattern instruction on the requirements of murder with malice aforethought (CALCRIM No. 520), that in order to find a defendant guilty of murder, the People had to prove that the defendant was the perpetrator who committed an act that caused the death of another person, and that, when the defendant acted, he had a state of mind called malice aforethought, which could either be express or implied. As relevant to first degree murder, the instruction explained that "[t]he defendant acted with express malice if he unlawfully intended to kill." (Italics added.) The instruction further explained that, "If you decide the defendants committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in instruction [CALCRIM No.] 521."
Pursuant to CALCRIM No. 521, the pattern instruction on first degree murder, the jury was told that in order to find a defendant guilty of this crime, the People had to prove that the defendant acted willfully, deliberately, and with premeditation. (CALCRIM No. 521.) The instruction explained that, "The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act that caused death." (Italics added.)
The court additionally instructed the jury with the pattern instruction on the general principles of aiding and abetting. (CALCRIM No. 400.) The jury was told that, "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator." In a separate pattern instruction concerning the required findings for liability based on directly aiding and abetting a crime, the jury was told that in order to find a defendant guilty of a crime based on such a theory, the People had to prove the perpetrator committed the crime, the defendant knew that the perpetrator intended to commit the crime, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime, and the defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. (CALCRIM No. 401.) The instruction explained that, "Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime."
3.1.2 Analysis
We conclude the trial court did not err in instructing the jury on liability for first degree murder. Contrary to defendants' contention, the jury instructions, when read together, make clear that a defendant could only be found guilty of first degree murder based on an aiding and abetting theory if the jury found that the actual perpetrator of the murder had the specific intent to kill. We find no merit in defendants' contention that the trial court erred by failing to instruct the jury that in order for a defendant to be guilty of first degree murder based on an aiding and abetting theory of liability, he must share the same intent as the actual perpetrator of the murder—i.e., the specific intent to kill.
Penal Code section 31, which governs aider and abettor liability, provides in relevant part, "All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed." Thus, "an aider and abettor 'shares the guilt of the actual perpetrator.' " (People v. Mendoza (1998) 18 Cal.4th 1114, 1122 (Mendoza).)
"The mental state necessary for conviction as an aider and abettor, however, is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must 'act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.] The jury must find 'the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .' " (Mendoza, supra, 18 Cal.4th at pp. 1122-1123.)
"When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person 'must share the specific intent of the [direct] perpetrator,' that is to say, the person must 'know[] the full extent of the [direct] perpetrator's criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator's commission of the crime.' " (People v. Lee (2003) 31 Cal.4th 613, 624.) Thus, to be guilty of first degree premeditated and deliberate murder as an aider and abettor, a person must have "aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission." (People v. Chiu (2014) 59 Cal.4th 155, 166-167.) "An aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent. Such an aider and abettor, then, acts with the mens rea required for first degree murder." (Id. at p. 167.)
As previously indicated, the jury in this case was instructed with CALCRIM No. 401, the pattern instruction on the required findings for criminal liability based on directly aiding and abetting a crime. The instruction told the jury that a defendant aids and abets a crime "if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." (Italics added.) This is a correct statement of the law. (See People v. Stallworth (2008) 164 Cal.App.4th 1079, 1103 [rejecting the argument that CALCRIM No. 401 was constitutionally defective because it did not explicitly state that mere presence or knowledge was insufficient to establish aiding and abetting].) The instruction plainly states that the aider and abettor must have the specific intent to aid, et cetera, in the commission of the particular crime involved. Defendants offer no legal authority holding that an aider and abettor must harbor the same specific intent as the direct perpetrator in order to be found guilty of first degree murder on an aider and abettor theory of liability.
Finally, we reject defendants' contention that "[t]he jury was erroneously instructed on implied malice, because no theory of guilt of first degree murder could be based on the implied malice of either [defendant] or the actual perpetrator." We find this undeveloped argument confusing and, in any event, lacking merit. While defendants correctly observe that there is no such thing as first degree murder based on implied malice, this observation does not establish instructional error. The jury in this case was not instructed that it could find a defendant guilty of first degree murder based on implied malice. Instead, the jury was properly instructed on the elements the People had to prove to establish first degree premeditated and deliberate murder or second degree implied malice murder. The law is settled that a person can be guilty of second degree murder based on implied malice. (See, e.g., People v. Cook (2006) 39 Cal.4th 566, 596 [second degree implied malice murder occurs "when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life"].) It is also settled that an aider and abettor is guilty as a principal if the aider and abettor knows the criminal purpose of the perpetrator and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 560.)
Defendants have not offered any argument or legal authority demonstrating instructional error with respect to second degree implied malice murder. It is well-settled that a judgment is presumed correct and it is the appellant's burden to affirmatively show error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An appellant must provide argument and legal authority to support his or her contentions. (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799.) " 'It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' " (Ibid.; see Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary."].)
3.2 Firearm Enhancements
Quintero contends the trial court improperly instructed the jury on the firearm enhancements because the instructions given to the jury permitted a true finding on the enhancements based on an aiding and abetting theory of liability without a finding of personal use. According to Quintero, "[t]he instructions improperly referred to defendants in the plural and thus failed to inform the jury of the necessity that they determine that each defendant personally used or discharged a firearm." Gutierrez joins in this contention. We find no prejudicial instructional error. Since we have concluded that the firearm enhancements imposed under section 12022.53, subdivisions (b) and (c) must be stricken as unauthorized, we limit our analysis to the firearm enhancement imposed under section 12022.53, subdivision (d).
3.2.1 Additional Background
At the close of trial, the trial court instructed the jury with the pattern instruction on multiple defendants to remind the jurors of which crimes were charged against which defendant. (CALCRIM No. 203.) As relevant here, the jury was told that each defendant was charged with willful and malicious discharge of a firearm at an inhabited dwelling house located on Rio Linda Boulevard in violation of section 246, and that it was alleged that each defendant personally and intentionally discharged a firearm, which proximately caused the death of Norman, within the meaning of section 12022.53, subdivision (d). The jury was also told that, "You must separately consider the evidence as it applies to each defendant. You must decide each charge for each defendant separately. If you cannot reach a verdict on both of the defendants or on any of the charges against any defendant, you must report your disagreement to the Court, and you must return your verdict on any defendant or charge on which you have unanimously agreed. [¶] Unless I tell you otherwise, all instructions apply to each defendant."
Pursuant to the pattern instruction on the crime of willful and malicious discharge of a firearm at an inhabited dwelling house (CALCRIM No. 965), the jury was told that both defendants were charged in count two with shooting at an inhabited house, and that in order to find a defendant guilty of this crime, the People had to prove that: "The defendant willfully and maliciously shot a firearm; [¶] And the defendant shot the firearm at an inhabited house." The instruction explained that, "Someone commits an act willfully when he does it willingly or on purpose. [¶] Someone acts maliciously when he intentionally does a wrongful act or when he acts with the unlawful intent to disturb, annoy, or injure someone else." (Italics added.) As previously indicated, the jury was also instructed on aider and abettor liability pursuant to CALCRIM Nos. 400 and 401.
Finally, the trial court instructed the jury with the pattern instruction on the firearm enhancement that applies when a defendant personally and intentionally discharges a firearm causing great bodily injury or death. (CALCRIM No. 3150.) The jury was told that if it found the defendants guilty of the crime charged in count two, it must then decide whether the People had proved the additional allegation that "the defendants personally and intentionally discharged a firearm during that crime and, if so, whether the defendants [sic] act caused death." (Italics added.) The jury was instructed that in order to find that the defendants intentionally discharged a firearm, the People must prove that: "The defendants personally discharged a firearm during the commission of that crime; [¶] And the defendants intended to discharge the firearm." (Italics added.) The jury was further instructed that, "If the People have proved both 1 and 2, you must then decide whether the People also have proved that the defendants' act caused the death of a person who was not an accomplice to the crime." (Italics added.) The instruction explained that, "An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. [¶] In deciding whether a [consequence] is natural and probable, consider all the circumstances established by the evidence."
Because causation was at issue with respect to the murder of Norman, the court had a sua sponte duty to instruct on proximate cause. The trial court properly instructed the jury in this regard. (See Bland, supra, 28 Cal.4th at pp. 334-335; Bench Notes to CALCRIM No. 3150 (2018 ed.) p. 860 [if causation is at issue, the court has a sua sponte duty to give the bracketed paragraph that begins with "An act causes . . . ."].) Where, as here, there is evidence of multiple potential causes, a trial court should also give the bracketed paragraph that begins with "There may be more than one cause . . . ." (Bench Notes to CALCRIM No. 3150 (2018 ed.) p. 860 [citing Bland, at pp. 335-338].) Although the trial court did not instruct the jury with this paragraph of CALCRIM No. 3150 at the close of trial, it later instructed the jury on this issue in accordance with Bland in response to a note from the jury, as we discuss infra.
During deliberations, the jury sent the following note to the trial court: "We need to know the meaning of the word 'proximately' in the Count 2 charge for [Quintero]. [¶] We can not locate this definition in the jury instructions [sic] 965 [(i.e., the pattern instruction on the crime of willful and malicious discharge of a firearm at an inhabited dwelling house)]." In response, the court stated, "To constitute murder or manslaughter there must be, in addition to the death of a human being, an unlawful act which was a cause of that death." The court further stated, "A proximate cause of great bodily injury or death is an act that sets in motion a chain of events that produces, as a direct, natural, and probable consequence of the act, the great bodily injury or death, and without which the great bodily injury or death would not have occurred. [¶] There may be more than one cause of the shooting into an inhabited dwelling causing death. When the conduct of two or more persons contributes concurrently as a cause of the shooting at an inhabited dwelling causing death, the conduct of each is a cause of the shooting at an inhabited dwelling causing death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative the moment of the shooting at an inhabited dwelling causing death and acted with another cause to produce the shooting at an inhabited dwelling causing death. [¶] If you find that the defendant's conduct was a cause of death to another person, then it is no defense that the conduct of some other person, contributed to the death." Finally, the court reminded the jury to make a finding regarding count Two "as to each allegation as to both defendants."
In its response to the jury's note, the trial court properly instructed the jury on proximate cause consistent with CALJIC Nos. 17.19.5 (6th par.) and 3.41. In Bland, our Supreme Court held that CALJIC No. 17.19.5 correctly defines proximate cause, and noted that where there is more than one cause of bodily injury or death, the Use Note to CALJIC No. 17.19.5 states that CALJIC No. 3.41 should also be given. (Bland, supra, 28 Cal.4th at pp. 335-336; see Use Note to CALJIC No. 17.19.5 (Spring 2017 ed.) p. 1134.) Here, a proximate cause instruction was necessary for the jury to understand the case because it deals with a factual scenario involving more than one shooter. (Bland, at pp. 337-338 [explaining that the defendant's discharge of his firearm may have been a proximate cause of the victims' injuries, even though it may have been his cohort's bullets that hit the victims].)
3.2.2 Analysis
Section 12022.53, subdivision (d) provides, in relevant part: "[A]ny person who, in the commission of a felony specified in . . . Section 246 . . . personally and intentionally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." By its plain language, the firearm enhancement under this section "applies so long as [a] defendant's personal discharge of a firearm was a proximate, i.e., a substantial, factor contributing to the [great bodily injury or death]." (Bland, supra, 28 Cal.4th at p. 338.) Thus, as our Supreme Court has held, "[a] person can proximately cause a gunshot injury without personally firing the weapon that discharged the harm-inflicting bullet." (Id. at p. 337; see People v. Palmer (2005) 133 Cal.App.4th 1141, 1150-1151 [same].)
As an initial matter, we note that the jury was properly instructed on the elements the People had to prove to support a guilty finding on the offense of willful and malicious discharge of a firearm at an inhabited dwelling house, and a true finding on the firearm enhancement under section 12022.53, subdivision (d). According to defendants, the alleged instructional error occurred when the trial court referred to defendants in the plural in the firearm enhancement instruction, thereby permitting a true finding on the enhancement without a finding of personal use by each defendant. Even assuming instructional error, we conclude the error was harmless under any standard. (People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability standard]; Chapman v. California (1967) 386 U.S. 18, 24 [beyond a reasonable doubt standard].)
The critical issue at trial with respect to the Rio Linda Boulevard shooting was identity. The only evidence identifying defendants as perpetrators involved in that shooting was Gorostiza's testimony and the statements she made to the police after the shooting. Consistent with her police interview, Gorostiza testified that, on the day of the shooting, Gutierrez claimed that he and Quintero had shot up the Paisas's house on Rio Linda Boulevard, and had used Smith's gun in the shooting. Gorostiza further testified that Quintero later told her that he and at least one other unidentified person had gone to the Paisas's place on Rio Linda Boulevard and shot it up. Consistent with her police interview, Gorostiza testified that Quintero believed he was "going down" for his involvement in the Rio Linda Boulevard shooting.
In addition to the evidence identifying defendants as perpetrators involved in the Rio Linda Boulevard shooting, there was also evidence that approximately 36 bullets were fired by multiple guns (at least four) at the Rio Linda Boulevard apartment complex in a short period of time, which resulted in the death of Norman. This evidence, coupled with the eyewitness testimony that three people approached the Rio Linda Boulevard apartment complex shortly before the shooting and then quickly fled the area after the shooting, showed that multiple people discharged a firearm at the apartment complex. Finally, bullet casings found at the scene of the Rio Linda Boulevard shooting matched the bullets Gorostiza had purchased for Smith prior to the shooting.
Because the jury found defendants guilty of first degree murder and willful and malicious discharge of a firearm at the occupied dwelling house located on Rio Linda Boulevard, we are convinced beyond a reasonable doubt that the outcome would not have been different on the firearm enhancements absent the alleged instructional error. Had the jury not credited Gorostiza's testimony, it would have acquitted defendants on those offenses. On this record, we cannot conclude it is possible the jury would have credited Gorostiza's testimony that both defendants were involved in the Rio Linda Boulevard shooting but not her testimony that both discharged firearms at the apartment complex.
4.0 Trial Court's True Finding on Prior Conviction Allegations
Quintero contends the trial court's finding that he had a prior serious felony conviction that qualified as a strike under the Three Strikes law violated his constitutional right to a jury trial under the Sixth Amendment. According to Quintero, he was not given, nor did he waive, his constitutional right to a jury trial on whether his 2007 assault conviction constituted a strike. Although not specifically stated, we construe Quintero's brief as arguing that the trial court violated his Sixth Amendment right to a jury trial by engaging in prohibited judicial factfinding in determining that his prior assault conviction constituted a strike. We disagree.
4.1 Additional Background
The charging document in this case alleged that Quintero had been convicted in 2007 of the crime of assault with a deadly weapon (former § 245, subd. (a)(1)), a serious felony under section 667, subdivision (a), that qualified as a strike under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12).
While the jury was deliberating, the trial court asked Quintero's counsel how Quintero would like to proceed on the prior conviction allegations in the event the jury returned a guilty verdict. In response, counsel stated that he had spoken with Quintero about this issue and Quintero decided he wanted a court trial on the truth of the allegations. When asked, Quintero confirmed counsel's representation. After the trial court told Quintero that he had the right to have the jury decide the truth of the allegations, Quintero indicated that he understood he had such a right. He also indicated he understood that, in waiving his right to have the jury decide the issue, the trial court would decide whether the People had proven the allegations beyond a reasonable doubt. Quintero then agreed to waive his right to a jury trial on the truth of the allegations, which counsel joined.
After the jury returned its guilty verdicts, a court trial was held on the prior conviction allegations. At the outset of the trial, the People introduced certified court documents pertaining to Sacramento County Superior Court case No. 06F11086, including the charging document, the minute order identifying the crime which Quintero pleaded no contest to, and the abstract of judgment. Quintero's counsel did not object to the admission of the records and submitted the matter without presenting evidence or argument. Thereafter, the trial court found true the allegations that Quintero had committed a prior serious felony that qualified as a strike under the Three Strikes law.
If there was a transcript of the plea colloquy, it was not presented to the trial court for review.
4.2 Analysis
The People have the burden to prove all the elements of an alleged sentence enhancement beyond a reasonable doubt. (People v. Hudson (2018) 28 Cal.App.5th 196, 203.) " 'On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.' " (Ibid.)
Quintero's prior conviction was for a violation of former section 245, subdivision (a)(1), under which an assault was committed either with a deadly weapon, or by means of force likely to cause great bodily injury. Under the Three Strikes law, assault with a deadly weapon is a "serious felony" which constitutes a strike, whereas assault by means of force likely to cause great bodily injury is not (see §§ 667, subd. (a), 1192.7, subd. (c); People v. Gallardo (2017) 4 Cal.5th 120, 123 (Gallardo)), unless the defendant personally inflicted great bodily injury upon the victim of the assault (see §§ 667, subd. (a), 1192.7, subd. (c); People v. Feyrer (2010) 48 Cal.4th 426, 442, fn. 8, superseded by statute on another ground as stated in People v. Park (2013) 56 Cal.4th 782, 789, fn. 4).
At the time of the offense, section 245, subdivision (a)(1), punished assaults "with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." (Former § 245, subd. (a)(1); Stats. 2004, ch. 494, § 1.)
Effective January 1, 2012, section 245 was amended so that subdivision (a)(1) of the statute now proscribes assault with a deadly weapon or instrument other than a firearm, while subdivision (a)(4) of the statute proscribes assault by any means of force likely to produce great bodily injury. (Stats. 2011, ch. 183, § 1.)
The charging document in the prior case alleged that Quintero had violated section 245, subdivision (a)(1) by willfully and unlawfully assaulting the victim with a deadly weapon, a knife, and by means of force likely to produce great bodily injury. The document further alleged that the offense was a serious felony because Quintero personally used a dangerous and deadly weapon (§ 1192.7, subd. (c)(23)), and because he personally inflicted great bodily injury upon the victim within the meaning of section 12022.7, subdivision (a) (§ 1192.7, subd. (c)(8)). The minute order issued by the trial court following Quintero's plea indicates that he pleaded no contest to "PC 245(a)(1) as a strike." The abstract of judgment identifies the statute under which the conviction occurred as "PC" "245(a)(1)" and then separately identifies the offense as "Assault w/Deadly Weapon." The abstract does not mention force likely to produce great bodily injury.
On this record, a rational trier of fact could have found beyond a reasonable doubt that Quintero's prior assault conviction was for assault with a deadly weapon, a strike under the Three Strikes law. (See People v. Delgado (2008) 43 Cal.4th 1059, 1069-1072 (Delgado) [absent rebuttal evidence, the abstract of judgment identifying the statute under which the conviction occurred as "PC" "245(A)(1)" and then separately identifying the offense as "Asslt w DWpn" was sufficient to constitute substantial evidence of the factual nature of the prior conviction].) In reaching this conclusion, the trial court did not engage in any prohibited judicial factfinding in violation of the Sixth Amendment right to a jury trial, as Quintero suggests. (See Gallardo, supra, 4 Cal.5th at pp. 124-125, 134-137 [trial court engaged in constitutionally prohibited factfinding by relying on the preliminary hearing transcript to conclude that the prior assault conviction constituted a strike because it was committed with a deadly weapon].)
When added punishment is imposed based on findings of fact underlying the prior conviction, the Sixth Amendment requires that a jury, not the court, determine whether the prior conviction qualifies for such punishment. (Gallardo, supra, 4 Cal.5th at p. 124.) In Gallardo, our Supreme Court explained, " '[I]n determining the truth of an alleged prior conviction when . . . the necessary elements of that conviction do not establish that it is a serious felony, and thus subject to California's Three Strikes law, the trier of fact must decide whether the defendant's conduct, as demonstrated in the record of the prior conviction, shows that the crime was a serious felony.' [Citation.] And when the sentencing court must rely on a finding regarding the defendant's conduct, but the jury did not necessarily make that finding (or the defendant did not admit to that fact), the defendant's Sixth Amendment rights are violated." (Id. at p. 135.) The Gallardo court held, "The trial court's role is limited to determining the facts that were necessarily found in the course of entering the conviction. To do more is to engage in 'judicial factfinding that goes far beyond the recognition of a prior conviction.' " (Id. at p. 134.) Thus, "a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the 'nature or basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction. [Citation.] That inquiry invades the jury's province by permitting the court to make disputed findings about 'what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.' [Citation.] The court's role is, rather, limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (Id. at p. 136, fn. omitted.) The Supreme Court concluded that "determinations about the nature of prior convictions are to be made by the court, rather than a jury, based on the record of conviction." (Id. at p. 138.)
In concluding that the Sixth Amendment had been violated, the Gallardo court reasoned, "Here, the trial court engaged in a form of factfinding that strayed beyond the bounds of the Sixth Amendment. . . . Defendant did not specify that she used a deadly weapon when entering her guilty plea. The trial court's sole basis for concluding that defendant used a deadly weapon was a transcript from a preliminary hearing at which the victim testified that defendant had used a knife during their altercation. Nothing in the record shows that defendant adopted the preliminary hearing testimony as supplying the factual basis for her guilty plea." (Gallardo, supra, 4 Cal.5th at p. 136.) "Because the relevant facts were neither found by a jury nor admitted by defendant when entering her guilty plea, they could not serve as the basis for defendant's increased sentence here." (Id. at p. 137.) "[A] sentencing court may identify those facts it is 'sure the jury . . . found' in rendering its guilty verdict, or those facts as to which the defendant waived the right of jury trial in entering a guilty plea. [Citation.] But it may not 'rely on its own finding' about the defendant's underlying conduct 'to increase a defendant's maximum sentence.' " (Id. at p. 134.)
Here, unlike Gallardo, the trial court did not engage in prohibited judicial factfinding in violation of the Sixth Amendment when it concluded that Quintero's 2007 assault conviction qualified as a strike under the Three Strikes law. In making this determination, the court relied on certified court records, including a minute order and abstract of judgment from the prior case, which showed that Quintero was convicted of a strike offense—assault with a deadly weapon. As explained by our Supreme Court in Delgado, an abstract of judgment is an "officially prepared clerical record of the conviction and sentence." (Delgado, supra, 43 Cal.4th at p. 1070.) In the absence of rebuttal evidence, as here, an "officially prepared abstract of judgment that clearly describes the nature of the prior conviction" is presumed reliable and accurate. (Id. at pp. 1070-1071; see People v. Epps (2001) 25 Cal.4th 19, 29-30 (Epps) [fact of prior convictions was presumptively established from official government documents clearly describing alleged convictions].)
Finally, because Quintero had no constitutional right to a jury trial on the prior conviction allegations under the circumstances of this case, his claim that trial counsel was ineffective for failing to advise him of such a right necessarily fails. On this record, only the statutory right to a jury trial on the prior conviction allegations applies. (See Epps, supra, 25 Cal.4th at p. 23 [recognizing statutory right to jury trial on whether prior conviction occurred under §§ 1025 & 1158].) Quintero concedes that he waived this right.
5.0 Section 654
Quintero contends that his sentence on his conviction for willful discharge of a firearm in a grossly negligent manner (§ 246.3) violates the proscription against multiple punishment set forth in section 654 because the conduct giving rise to this offense occurred at the same time and place and pursuant to the same criminal intent and objective as the burglary offense—to assault Cesar G. (See, e.g., People v. Hester (2000) 22 Cal.4th 290, 294 (Hester).) We disagree.
5.1 Additional Background
Quintero was charged with two crimes in connection with the shooting at Cesar G.'s apartment: (1) first degree residential burglary (§ 459), and (2) willful and malicious discharge of a firearm at an inhabited dwelling house (§ 246). At the close of trial, the trial court granted the People's request to amend the firearm offense to instead allege the crime of willful discharge of a firearm in a grossly negligent manner (§ 246.3), a lesser included offense of section 246 (see People v. Ramirez (2009) 45 Cal.4th 980, 990).
As set forth in the relevant jury instruction and articulated by the prosecutor in closing argument, the People's theory of guilt on the burglary offense was that Quintero entered Cesar G.'s apartment with the intent to assault him with a firearm. In closing argument, the prosecutor indicated that Quintero had entered Cesar G.'s apartment with people who were armed. She then said, "What do you think they were going to do if he was in there? Do you think they would be asking him about that meth like they did with [J.Q.]? If they did, do you think they would put a gun in his face like they did with [J.Q.] with that gun? [¶] He wasn't there and they shot up his apartment, but that does qualify as burglary. It's committed if you enter with the intent to commit that assault with a firearm. You have to enter with the intent. And you don't actually have to do that crime once you're inside. In this case they couldn't because he wasn't there, but you do have to have an intent when you enter to be guilty of that crime. Since it is an inhabited home it's a first degree burglary even though he was not there at the time. [¶] Again, as having to do with aiding and abetting, that's a jury instruction. . . . Again, the idea is if you go in with people, you can be guilty as an aider and abettor. We talked about aiding and abetting already. It's the same for burglary."
With respect to the offense of willfully discharging a firearm in a grossly negligent manner, the prosecutor initially noted that only Quintero was charged with this crime and then stated, "It's shooting a firearm in a grossly negligent manner. It is defined at jury instruction [CALCRIM No.] 970. You can read the ingredients. Intentionally shot a firearm. And, again, you can go into the aiding and abetting theory. Did the shooting with gross negligence. And the shooting could have resulted in injury or death. The law defines what gross negligence is. It's more than just ordinary recklessness or inattention or mistake in judgment; right? The accidental thing. [¶] A person acts with gross negligence when they act recklessly, it creates high risk of death or great bodily injury, and a reasonable person would know that acting in that way creates such a risk. So think about this. Someone is shooting a gun inside an apartment; right? With shared walls. With shared neighbors. Would the ordinary cautious person do that? They would not. They would be afraid. [¶] What if it goes through a wall? What if it hits somebody? What if it ricochets and hits somebody in the apartment? You just don't go shooting off guns inside apartments, and there's a reason why reasonable people don't do that. They ignore those and that's why he's guilty of gross negligence."
The jury found Quintero guilty of first degree burglary and willful discharge of a firearm in a grossly negligent manner. At sentencing, the trial court imposed consecutive sentences on these offenses without making an express finding that section 654 did not apply. In imposing consecutive sentences on counts one (murder), four (possession of a firearm by a felon), five (willful discharge of a firearm in a grossly negligent manner), and six (burglary), the court stated: "So that the Court of Appeal is fully aware of why I'm going to do this, I am going to order that those sentences be served consecutively as the crimes with respect to Mr. Quintero there were two separate offenses. There was the murder of Ms. Norman, and then there was the shooting up of the apartment of the maintenance man. That occurred at a separate time and place and there was sufficient time for Mr. Quintero to pause and reflect. [¶] So pursuant to [California Rules of Court,] rule 4.425(a)(2) [(crimes involving separate acts of violence or threats of violence)], I am going to run all of those sentences consecutive such that the defendant will be committed to the state prison for an indeterminate term of 50-years-to-life consecutive to the determinate term of ten years and eight months." Quintero's counsel did not object to the sentence imposed.
5.2 Analysis
Section 654, subdivision (a) provides, in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . . " The statute does not prohibit multiple convictions for the same conduct, only multiple punishment. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) "In such a case, the proper procedure is to stay execution of sentence on one of the offenses." (Ibid.)
Section 654 prohibits separate punishment for multiple offenses arising from the same act or from a series of acts constituting an indivisible course of criminal conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (Ibid.)
"The initial inquiry in any section 654 application is to ascertain the defendant's objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.) " 'The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced.' " (People v. Coleman (1989) 48 Cal.3d 112, 162; see People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.)
Whether section 654 applies in a given case lies within the broad discretion of the trial court. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) " 'A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.' " (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.) We review the trial court's determination in the light most favorable to the judgment and presume the existence of every fact the trial court could reasonably deduce from the evidence. (Jones, at p. 1143.)
"Ordinarily, a section 654 claim is not waived by failing to object below" because "a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654." (Hester, supra, 22 Cal.4th at p. 295.)
We find no error in the trial court's decision not to stay sentence on Quintero's conviction for willful discharge of a firearm in a grossly negligent manner (§ 246.3, subd. (a)). Viewing the record in the light most favorable to the judgment, substantial evidence supports the court's implicit finding that a separate intent and objective was formed for each offense. There was evidence that, after Cesar G.'s front door was kicked in, Quintero rushed into the apartment with three other men (two of whom were armed with guns) with the intent to assault Cesar G. with a firearm for the purpose of locating Galsote's methamphetamine. There was also evidence that, shortly after the group entered Cesar G.'s apartment, one of them discharged five bullets into Cesar G.'s bedroom door. The group then immediately fled the scene. On this record, the trial court could have reasonably concluded that the shooting was a gratuitous act of violence, which was not necessary to achieve the objective of locating the methamphetamine. If the group's only objective and purpose was to locate Galsote's methamphetamine, they could have searched Cesar G.'s apartment to determine whether he was home. If they determined he was not home, they could have searched for the methamphetamine or waited until he returned to interrogate him. Instead, one of the men deliberately chose to discharge five bullets into Cesar G.'s bedroom door. Because this violent act was separate and apart from the goal of locating the methamphetamine, it is deserving of increased punishment without the benefit of the mitigating effect of section 654. The evidence adduced at trial supports the trial court's implied finding of multiple criminal objectives which were independent of and not merely incidental to each other. Accordingly, we find no sentencing error.
6.0 Custody Credit
Defendants contend the trial court imposed an unauthorized sentence by failing to award legally mandated custody credit. According to defendants, the court erred in reducing their respective awards of custody credit due to their misconduct in county jail. The People concede the point, and we agree.
As a general rule, a defendant must first file a motion with the trial court to correct custody credit calculations. (§ 1237.1; People v. Fares (1993) 16 Cal.App.4th 954, 959-960.) The record does not disclose that either defendant did so. Nonetheless, because it is not the sole issue on appeal and is undisputed, we will consider the issue in the interests of judicial economy. (People v. Guillen (1994) 25 Cal.App.4th 756, 764.)
"A defendant is entitled to actual custody credit for 'all days of custody' in county jail and residential treatment facilities, including partial days. [Citations.] Calculation of custody credit begins on the day of arrest and continues through the day of sentencing." (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) "Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served." (Id. at p. 56.) "A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered." (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
The record discloses that Quintero and Gutierrez were each entitled to 990 days of custody credit, as they were arrested on July 8, 2015, and sentenced on March 23, 2018. Thus, we agree with the parties that it was error for the trial court to award less custody credit. Accordingly, we shall modify the judgment to award each defendant 990 days of custody credit and direct the trial court to prepare corrected abstracts of judgment showing this award.
The record reflects that the trial court deducted credits from each defendant's custody credit award due to their misconduct in county jail. However, neither defendant earned any conduct credit, as a person who is convicted of murder is prohibited from accruing such credits. (People v. Chism (2014) 58 Cal.4th 1266, 1336.)
7.0 Clerical Errors
Gutierrez contends his abstract of judgment and the sentencing minute order require correction for clerical error. The People concede that Gutierrez's abstract of judgment contains clerical errors but disagree that the minute order contains a clerical error. We find that there are clerical errors that must be corrected.
Courts may correct clerical errors at any time, including abstracts of judgment that do not accurately reflect the oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will direct the trial court to correct the clerical errors we identify below. (People v. High (2004) 119 Cal.App.4th 1192, 1200.)
Gutierrez's abstract of judgment incorrectly reflects that the trial court imposed a consecutive determinate term of four years on the felon in possession of a firearm offense when, in fact, the court imposed a concurrent four-year term on that offense. The abstract of judgment also incorrectly reflects that the court imposed firearm enhancements (§ 12022.53, subds. (b), (c), & (d)) in connection with the murder offense. In truth, the firearm enhancements were only alleged, and found true by the jury, as to the willful and malicious discharge of a firearm at an inhabited dwelling house offense (§ 246). In addition, the abstract of judgment incorrectly reflects that Gutierrez was convicted on count two for "Discharge firearm at a house" in violation of "246.3" when, in fact, he was convicted on count two for willfully and maliciously discharging a firearm at an inhabited dwelling house in violation of section 246. Finally, the abstract of judgment indicates that Gutierrez's indeterminate sentence on the murder offense was calculated pursuant to "667.7(e)(1)" but the record discloses that he was sentenced on this offense pursuant to sections 667, subdivision (e)(1), and 1170.12, subdivision (a)(1).
Gutierrez also contends that the trial court's sentencing minute order fails to reflect that the four-year sentence on the felon in possession of a firearm offense was ordered to be served concurrently. However, as the People point out, the sentencing minute order contains the shorthand "C/C" when referring to the sentence imposed in connection with this offense. Thus, this does not appear to be a clerical error that requires correction.
Although not mentioned by the parties, we notice clerical errors in Quintero's abstract of judgment that must be corrected. Quintero's abstract of judgment incorrectly reflects that he was convicted on count two for "Disch. firearm at dwelling" in violation of "246.3(a)," and that he was convicted on count five for "Disch. firearm at dwelling" in violation of "246.3(a)." In truth, Quintero was convicted on count two for willfully and maliciously discharging a firearm at an inhabited dwelling house in violation of section 246, and he was convicted on count five for willfully discharging a firearm in a grossly negligent manner in violation of section 246.3, subdivision (a).
We will order the abstract of judgments corrected accordingly, and also direct the trial court to correct any errors contained in its internal records, including the sentencing minute order.
DISPOSITION
The judgment is modified to strike the jury's true findings on the firearm enhancements imposed under section 12022.53, subdivisions (b) and (c) as to both defendants, and to award each defendant 990 days of custody credit. The judgment is affirmed as modified. The trial court shall prepare corrected abstracts of judgment consistent with this opinion and forward a certified copy of the abstracts to the Department of Corrections and Rehabilitation. The trial court shall also correct its internal records to ensure that they accurately reflect the judgment.
/s/_________
Butz, Acting P.J. We concur: /s/_________
Hoch, J. /s/_________
Krause, J.