Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super. Ct. No. RIF127197, Peter L. Spinetta, Judge. (Retired judge of the Contra Costa Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendant Maximilliano Romero III pled guilty to one count of being a felon in possession of a firearm (count 5; Pen. Code § 12021, subd. (a)). Thereafter, a jury convicted defendant of four counts of attempted murder relative to four separate victims (counts 1-4; §§ 664, 187) and found true allegations that he had personally discharged a firearm and inflicted great bodily injury in committing those offenses (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)). Defendant then admitted he had sustained two prior strike convictions (§§ 667, subd. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)), two prior serious felony convictions (§ 667, subd. (a)), and two prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to an indeterminate term of 214 years to life consisting of the following: 25 years to life, consecutive, on counts 1 through 4; an additional 25 years to life, consecutive, on each of the attached personal use/great bodily injury enhancements; consecutive five-year terms on each of the two prior serious felony convictions; one year on one of the prior prison terms (striking the other); and a three-year determinate term on the count 5 conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
At one point during the proceedings, the People discussed dismissing both enhancements attached to count 2; however, they never did so. Nonetheless, the minute order dated February 7, 2008, notes that both enhancements were dismissed. The People later brought the error to the court’s attention. The court acknowledged the error and directed the clerk to strike that notation. A notation in the minute order dated March 14, 2008, reads “[t]he Court finds that the minute order dated 02/07/2008 does not correctly/clearly reflect the Court order and orders it corrected Nunc Pro Tunc to reflect: The enhancements that were stri[c]ken were not to be stricken. Court notes that the correct enhancement should be [section] 12022.53 [subdivision] (d) PC for counts 1 through 4.” While the minute order dated March 14, 2008, now correctly reflects that the section 12022.53 enhancement was not actually dismissed, it incorrectly reflects the subdivision of the enhancement. Likewise, it nowhere indicates that the section 1192.7, subdivision (c)(8), enhancement attached to count 2 was erroneously stricken. Thus, we shall direct the superior court clerk to correct the minute order dated March 14, 2008, to reflect that the enhancement should be section 12022.53, subdivision (c), and that the enhancements attached to count 2 (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)) were not dismissed.
On appeal, defendant contends insufficient evidence supports his convictions on counts 3 and 4. In addition, defendant contends that the sentence imposed on count 5 must be stayed pursuant to the dictates of section 654. We disagree and, therefore, affirm the judgment in full.
FACTUAL AND PROCEDURAL HISTORY
Late at night, defendant’s girlfriend, M.S., got off work and began to drive herself and her coworker home. Thereafter, she received a phone call from defendant in which he requested a ride home because he had been drinking. When she arrived to pick him up, defendant insisted on sitting in the front passenger seat where the coworker was seated. M.S. told defendant to get in the back seat; however, defendant told the coworker to sit in back. The coworker decided to get out of the vehicle and get in the back seat. M.S. told the coworker to stay where she was. Defendant eventually got into the back seat of the vehicle. M.S. dropped the coworker off. On the way home, defendant attempted to kiss M.S., but she refused, telling him he had embarrassed her in front of her coworker. She drove home. Defendant’s van was parked across the street.
M.S. resided in a “back house” on her grandmother’s property with her two children and her mother. After she and defendant entered the house, defendant kept asking her to talk. M.S. informed defendant that she did not want to talk, rather, she wanted to go to sleep. M.S. entered the bedroom and got into bed where her children and her mother were sleeping. The room was illuminated by the glow of the television so that she could see clearly. Defendant followed her into the bedroom and kept insisting on talking. This continued for about one-half hour. Defendant left the room, but came back and became louder. M.S. told him to leave because he was going to wake up the children. Nevertheless, defendant kept talking. M.S.’s mother woke and told defendant to be quiet because the children were trying to sleep. Defendant told her to “shut the fuck up.”
M.S. told defendant that if he was going to treat her mother with disrespect he should leave. Defendant asked her if she really wanted him to leave. M.S. replied that he did not have to leave if he would just go sleep on the couch and leave her alone. She offered to take him to his sister’s home, but he refused. Defendant became angry and left the house.
Approximately five to 10 minutes later defendant reentered the bedroom and stood at the foot of the bed. He asked M.S. if she really wanted him to leave. She said she did. Defendant then asked her “‘[d]o you really want to do this?’” Due to his tone, M.S. asked him if he was threatening her. Defendant replied that he was not.
Defendant then pulled up his shirt near the waistband of his pants and removed a gun. M.S. raised her arm in front of her face as defendant shot her. She was struck at approximately her elbow. M.S. then moved to cover her son. Defendant fired another shot or two. Believing that she was the target of defendant’s gunfire, M.S. moved away from the children in order to prevent her children from being shot. Defendant fired another shot, which hit her in the stomach. Defendant then “turned and aimed towards the bed at [her] children and [her] mother.” Defendant fired several shots while aiming at the bed. Defendant then turned back towards her and fired a few more times. Eventually the gun made clicking noises, apparently after it had been emptied of bullets.
M.S.’s mother charged at defendant in an attempt to wrest the gun from his hands. Defendant struck her in the face, causing her to fall. Defendant ran out of the back house. M.S. went to her grandmother’s house, where she called 911.
M.S. was treated at a hospital for three weeks for gunshot wounds to her stomach and arm. M.S.’s mother was treated at the same hospital for three days for gunshot graze wounds she incurred to her back and head. M.S.’s son was admitted to another hospital where he was treated for a gunshot wound to his left arm. M.S.’s daughter was treated at the hospital for two months for a gunshot wound to her head. It was initially suspected that she would not live.
Defendant left in his van. He was apprehended the next day in Phoenix, Arizona.
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends that insufficient evidence supports the jury verdict on counts 3 and 4. Specifically, defendant challenges the evidence on the mens rea element of the attempted murder charges pertaining to the children, i.e., he maintains that substantial evidence failed to support a finding that defendant had the specific intent to murder the children. The People respond that sufficient evidence supported the jury’s finding that defendant either specifically intended to kill the children or that the children were within the “kill zone” such that the mens rea as to the children was supported under a concurrent intent theory. We agree with the People.
“‘In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves.’” (People v. Whisenhunt (2008) 44 Cal.4th 174, 200.) Rather, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime... beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “‘“[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” [Citation.]’ [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 739.)
A conviction for attempted murder “‘requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.]” (People v. Smith, supra, 37 Cal.4th at p. 739.) Thus, in order for defendant properly to have been found guilty of attempted murder of the children, he must have been found to have acted with the specific intent to kill them, i.e. to have harbored express malice toward the children. (Ibid.) “Express malice requires a showing that the assailant ‘“‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]”’ [Citation.]” (Ibid.) “‘The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill....” [Citation.]’ [Citations.]” (Id. at p. 741.) Additionally, under a concurrent intent or kill zone theory, a rational jury could conclude beyond a reasonable doubt that a shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the “‘kill zone’”) as the means of accomplishing the killing of that victim. (Id. at pp. 745-746; People v. Bland (2002) 28 Cal.4th 313, 329-330.)
Here, substantial evidence supported the jury’s findings on counts 3 and 4 under either theory. Defendant repeatedly insisted on talking with M.S. She told him to leave because she feared he would wake the children. M.S.’s mother told him to be quiet because the children were sleeping. Defendant fired at least five or six shots in the bedroom at close proximity to M.S., her children, and her mother. M.S. testified that defendant initially fired the first two or three shots while she was on the bed with her mother and her children. When she moved to the other side of the room, defendant fired at her again. Both M.S. and her mother testified that defendant then turned, aimed, and fired the gun in the direction of her mother and the children while M.S. remained on the other side of the room. Defendant then turned back to M.S. and fired the gun again until it was apparently empty. Thus, defendant essentially sprayed the room in a back-and-forth motion until he was out of ammunition.
In a recording of the 911 call played to the jury, M.S. informed the dispatcher that her boyfriend just shot her and her kids. She exclaimed, “[h]e’s killing my kids.” Defendant struck all four occupants of the bedroom. Indeed, while he only grazed M.S.’s mother, both of M.S.’s children were struck with bullets that lodged within their bodies. Defendant’s marksmanship was strong evidence of his culpable state of mind with regard to the children; therefore, the evidence was sufficient for the jury to find that defendant either specifically intended to kill the children or intended to kill everyone in the immediate area in order to accomplish the killing of M.S. and her mother.
Defendant maintains that since it was dark, the children generally slept on the couch in the front room, and he was intoxicated, the evidence does not establish that he was even aware of the presence of the children in the bedroom. Hence, he argues he could not have had the specific intent to kill them. The record belies defendant’s claims of ignorance. Both M.S. and her mother testified that the television was on and that it illuminated the room sufficiently to see. Indeed, the mother testified that she could see clearly in the room. Defendant spent at least one-half hour in the bedroom with M.S. prior to commencing the shooting. Both M.S. and her mother told him to be quiet because he would wake the children. M.S. testified that defendant “knew [the children] were there.” Thus, substantial evidence supported a determination that (1) defendant knew of the children’s presence, and (2) he intended to kill them.
B. SECTION 654
Defendant contends that his possession of the firearm was merely incidental to his commission of the shootings; thus, he maintains punishment on count 5 must be stayed. The People correctly respond that where defendant’s possession of the weapon was clearly antecedent to the shooting, separate punishment for that possession is appropriate.
“The test for determining whether section 654 prohibits multiple punishment has long been established: ‘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....’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951- 952.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “‘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.’ [Citation.]” (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.)
When a defendant has been convicted of both unlawful possession of a firearm and an offense involving the use of the same firearm, the test for the application of section 654 is fairly clear: “‘[W]here the evidence shows a possession distinctly antecedent [to] and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper....’ [Citation.]” (People v. Bradford (1976) 17 Cal.3d 8, 22; accord, People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408-1414 [Fourth Dist., Div. Two].) “[S]ection 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1145.)
Here, substantial evidence supported the court’s implicit finding that defendant arrived at the scene of the shooting already in possession of the firearm. M.S. testified that defendant had previously informed her that he had a gun. Nothing in the evidence indicates that defendant merely fortuitously came into possession of the firearm at the time of or moments before the shooting. Rather, the trial court could reasonably deduce either that defendant had possession of the firearm during the entirety of the events of that evening or that he obtained the gun from his vehicle during the five to 10 minutes when he left the back house and returned. Thus, the evidence was sufficient to support a finding that defendant possessed the firearm with an intent unrelated to his motivation in shooting M.S. and her family. Imposition of separate punishment on count 5 was, therefore, proper.
DISPOSITION
The trial court is directed to correct its minute order dated March 14, 2008, to reflect that the enhancement should be section 12022.53, subdivision (c), and that the enhancements attached to count 2 (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)) were not dismissed. In all other respects, the judgment is affirmed.
We concur: RICHLI, Acting P. J., KING, J.