Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F07800411 Edward Sarkisian, Jr., Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Alison Elle Aleman and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural History
In July 2007, defendant Omar Alex Ruvalcaba was charged by information with the attempted murder of Roxanne Cervantes (count 1), shooting at an inhabited dwelling (count 2), and assault with a firearm (count 3). His wife, Elizabeth, was also charged. After a jury trial, Omar was found guilty on all counts. The jury also found that the attempted murder was willful, deliberate, and premeditated as defined by Penal Code section 664, subdivision (a), that Omar personally inflicted great bodily injury, that Omar personally used a firearm causing great bodily injury (counts 1 and 2), and that he personally used a firearm (count 3). (§ 12022.53, subd. (d); § 12022.7, subd. (a); § 12022.5, subd. (a).) Elizabeth was found guilty of being an accessory after the fact.
All further references are to the Penal Code unless otherwise stated.
Omar was sentenced to 15 years to life, plus a consecutive 25-year enhancement pursuant to section 12022.53, subdivision (d), on count 1; the upper term of seven years plus a consecutive 25-years-to-life enhancement pursuant to section 12022.53, subdivision (d), on count 2; and the upper term of four years, plus a consecutive 10-year enhancement pursuant to section 12022.5, subdivision (a), on count 3. The court also imposed a three-year enhancement on count 3 pursuant to section 12022.7, subdivision (a). The sentences on counts 2 and 3 were stayed pursuant to section 654.
Factual History
On April 29, 2007, Roxanne Cervantes and Elizabeth engaged in a heated telephone conversation, which included name-calling and threats. Elizabeth decided she wanted to confront Cervantes personally. At approximately 10:00 p.m. that same evening, Elizabeth and Omar arrived at Cervantes’s apartment. Cervantes saw them pull up; she turned out lights and ordered her children to the back room.
Elizabeth and Omar started loudly banging on Cervantes’s door. Cervantes went to the window. Elizabeth and Omar told Cervantes to come outside to fight. Cervantes said she would not do that because her children were present. Omar said if Cervantes would come out, he would not hurt her. Cervantes told them to leave or she would call the police.
Timothy Allen was the manager of the apartment complex. He saw Elizabeth and Omar outside Cervantes’s apartment and heard them beating on her door. He approached the couple and told Omar to keep the noise down or the police would be called. Omar approached him, saying, “‘Don’t be stepping up on me.’” Allen then turned to talk to some kids on skateboards that were in the area. Elizabeth told Omar that they should go. She grabbed his hand and the two walked back to their car, a silver-colored Honda, which was parked in front of the apartment. When they reached the car, Elizabeth got in. Omar stood near the passenger side of the car. Cervantes testified that, as Omar stood there, he turned, looked directly at her, and shot at her while she was standing at the window. Although it was dark, Cervantes saw the muzzle flash immediately before being struck in the abdomen; it came from where Omar was standing.
Allen, who had remained in the vicinity, heard two shots. He looked back and saw Omar with a gun, standing by the passenger side of the Honda. He saw the muzzle flash of a third shot come from Omar’s gun. Allen ran back into the complex for cover. Allen testified he heard a total of seven shots. After the shooting stopped, he started back toward Cervantes’s apartment and saw the Honda leave at a high rate of speed. Allen returned to the apartment and called 911. Cervantes told Allen it was “Liz and her boyfriend” who shot her.
Investigating officers found three bullet holes in the window and three or four in the wall just right of the window. They also found spent.357-caliber Glock SIG shell casings on the street near where Omar had been standing and determined that the bullet holes were consistent with a trajectory from the Honda’s location. Omar admitted owning a.357-caliber semiautomatic Glock SIG handgun, but claims it was stolen a month before the shooting. He did not report it as stolen because he was placed on hold too long when he tried calling to report the theft.
When interviewed by police, Elizabeth initially denied hearing any gunshots. She claimed that Omar had not fired a gun and stated that the two of them had left when Cervantes called the police. Elizabeth said that if Omar had a gun on him, she never saw it.
After a pause in the interview, Elizabeth was led to believe that Omar had admitted shooting at Cervantes. Elizabeth then changed her story. She told police that, when she and Omar went back to the car, she heard gunshots. After she heard the gunshots, Omar got in the car and Elizabeth drove away. At trial, Elizabeth reverted to her previous claim that she had not heard any gunshots, and said that she had lied to police in order to protect herself when she said otherwise. Elizabeth also testified at trial that she saw another car leave the apartment complex at the same time they did. She had not told police about this car earlier. Allen confirmed that another car left the area at about the same time as Omar and Elizabeth, but he said it appeared to be neighbors trying to get out of the area. He said the other car was “across the street down a ways.” No witnesses tied the other car to the shootings.
Omar initially denied having his gun and denied hearing gunshots when interviewed by police; however, when Elizabeth’s interview was played for him, he admitted firing at the apartment. He said he carried his gun in a holster in front of his stomach and that he was “pissed … off … [be]cause [Cervantes] didn’t want to come out, stand up to my wife.…” He said the shooting was “a spur of the moment kind of thing,” and he “wasn’t thinking” when he fired the shots. He said he was trying to scare Cervantes.
At trial, Omar also reverted to his previous claim that he had not fired any of the shots and that he had not heard any shots. He claimed he falsely had confessed so that Elizabeth would not go to prison and to prevent his children from being taken away. He said he and his wife left when Cervantes would not come outside, and denied being upset when the pair confronted Cervantes. Omar admitted to being a good shot.
Discussion
I. Sufficiency of the evidence
Omar contends there is insufficient evidence to support the jury’s finding that the attempted murder was willful, deliberate, and premeditated. We disagree.
In order to succeed on a challenge to the sufficiency of the evidence to support a jury finding, a defendant must establish that no rational jury could have concluded as it did. The rules of appellate review require that we evaluate the evidence in the light most favorable to the prosecution and presume in support of the judgment every fact a jury could reasonably have deduced from the evidence. (See People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) If the circumstances reasonably justify the trier of fact’s findings, even if they might also reasonably be reconciled with a contrary finding, we must affirm. (People v. Lenix (2008) 44 Cal.4th 602, 627-628.)
“Premeditation means the killing was ‘considered beforehand,’ and deliberation requires ‘careful thought and weighing of considerations for and against the proposed course of action.’ They may take place in a brief interval and the test is not time, but reflection.” (In re C.R. (2008) 168 Cal.App.4th 1387, 1393, quoting People v. Memro (1995) 11 Cal.4th 786, 862-863.) Three categories of evidence are sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) These categories provide an aid for assessing whether the evidence supports an inference that the killing was the result of preexisting reflection and weighing of considerations, rather than a rash impulse. (People v. Elliot (2005) 37 Cal.4th 453, 470.)
All three categories of evidence are present here. A reasonable jury could infer that Omar planned the attack when he armed himself with his gun prior to driving to confront Cervantes. The fact that he armed himself supports the inference that he planned a violent encounter with Cervantes, even though it might also support Omar’s contention that he brought the gun for protection. (People v. Marks (2003) 31 Cal.4th 197, 230.) There is also a supportable inference of motive. The jury could have found that Omar intended to kill Cervantes because she had disrespected and threatened his wife during the heated telephone conversation and again at the apartment. Omar said that Cervantes had called his wife a whore and said she had been sleeping around, even though his wife had not done any of these things. Omar said he was angry that Cervantes would not come out and fight his wife. Elizabeth told police she could “feel” that Omar was upset. In addition, there was evidence that Cervantes had threatened Elizabeth, and Omar went along to protect Elizabeth.
Finally, the method used to inflict the injury suggests deliberation and the intent to kill. Omar and Elizabeth had walked away from the apartment, ending the confrontation. Nonetheless, once Omar reached the car and Elizabeth was safely inside, Omar turned, looked directly at Cervantes, and opened fire. Although Omar admitted being angry, Elizabeth said he was calm. He fired approximately seven shots, directly at the window where Cervantes had been standing. This evidence supports an inference of deliberation. A reasonable jury could have construed the delay in firing, the context of the firing, and the number of shots as evidence of a calculated design to kill. (People v. Elliot, supra, 37 Cal.4th at p. 471; People v. Ramos (2004) 121 Cal.App.4th 1194, 1208 [firing numerous rounds at occupied vehicle showed shooting was purposeful and sustained attempted murder conviction].)
II. Instructional error
Omar contends it was error not to instruct the jury sua sponte on the elements of attempted voluntary manslaughter. “[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 162; see also People v. Parson (2008) 44 Cal.4th 332, 348-349.) The duty to give the instruction exists even where the defendant’s defense is that he committed no offense and objects to the instruction. (People v. Breverman, supra, at pp. 154-155; People v. Barton (1995) 12 Cal.4th 186, 190.) Attempted voluntary manslaughter is a lesser-included offense of the offense of attempted murder, a fact the Attorney General does not dispute. (See People v. Montes (2003) 112 Cal.App.4th 1543, 1545.)
Instructional error is subject to a harmless-error review. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214; see also People v. Breverman, supra, 19 Cal.4th at p. 162 [instructions on lesser-included offense required only when evidence that defendant committed lesser-included offense is substantial enough to merit consideration by jury].) Even if we were to agree that there is sufficient evidence to support an attempted voluntary manslaughter verdict, given Omar’s admission that he was “pissed” at Cervantes and did not think before shooting her, we would conclude there is no prejudice.
There was ample evidence that Omar did not act in the heat of passion even though he behaved in a forceful manner. Allen testified that Omar responded aggressively when Allen told him to leave, and Elizabeth stated that Omar had a temper. Even so, there is little evidence that he was acting as a result of an intense, volatile emotion that was preventing rational thought as evidenced by the fact that Elizabeth said he was calm. (See People v. Berry (1976) 18 Cal.3d 509, 515 [voluntary manslaughter requires evidence that killer’s reason obscured due to strong passion aroused by sufficient provocation to cause ordinary person to act rashly]; People v. Wickersham (1982) 32 Cal.3d 307, 335, 327 [passion includes any high-wrought emotion invoked by provocation; however, if sufficient time elapses between provocation and fatal blow for passion to subside, killing not voluntary manslaughter], disapproved on other grounds in People v. Barton, supra, 12 Cal.4th at p. 200.) Omar did not shoot Cervantes while at the door in the midst of the conflict, but only after he and Elizabeth had walked away from the confrontation. It was at the car that Omar turned and looked directly at Cervantes before shooting her. This is strong evidence of a reasoned act. Additionally, Omar’s defense at trial was that he was not the shooter—not that the offense was committed in the heat of passion. While this is not determinative of whether the instruction should have been given (People v. Breverman, supra, 19 Cal.4th at pp. 154-155), it supports a finding of no prejudice.
In light of the entire record, there is no reasonable probability that a failure to instruct on attempted voluntary manslaughter affected the outcome of trial. (People v. Breverman, supra, 19 Cal.4th at p. 162.)
III. Denial of continuance
Omar claims the trial court abused its discretion when it denied his request for a continuance prior to sentencing on the ground that two additional witnesses had surfaced that defense counsel had been told might cast doubt on Allen’s testimony that he saw Omar fire the gun. According to the offer of proof, defense counsel had just that morning become aware of two witnesses, Allen’s stepdaughter and live-in girlfriend, who recently claimed that, at the time of the shooting, Allen was back near the rear of the apartment complex. Although both witnesses had been interviewed prior to trial, apparently this information was new. In any event, it had not been verified because defense counsel had not yet spoken with the two witnesses. Counsel contended that a continuance was needed so defense counsel could meet with them. The trial court denied the motion, saying that, even if these witnesses provided the information suggested by the offer of proof, the newly discovered evidence would not rise to a level that would shake confidence in the jury’s verdict.
The granting or denial of a continuance rests within the discretion of the trial court. (People v. Howard (1992) 1 Cal.4th 1132, 1171.) Continuances are granted only upon a showing of good cause. (§ 1050, subd. (e); People v. Beeler (1995) 9 Cal.4th 953, 1003.) Defense counsel’s offer of proof was that two witnesses would testify that Allen was back by his apartment when the shooting began. Both of these witnesses had been identified prior to trial and had been interviewed without this evidence coming to light, suggesting the information was of questionable reliability. There was no explanation about how defense counsel came to hear of these statements and why they were not discovered before trial. This is not the type of showing required to establish good cause.
Lastly, this evidence is not likely to undermine confidence in the verdict, meaning that Omar cannot show he was prejudiced by the court’s denial of his request for a continuance. Allen was a citizen-witness with no motivation to lie. Omar and Elizabeth both put Allen at or near Cervantes’s apartment at the time of the confrontation. Cervantes said someone was there and it may have been Allen. Further, Allen’s testimony is consistent with that of Cervantes and corroborated by the physical evidence. Allen said he heard two shots. He saw the muzzle flash of a third, and then ran for cover toward the back of the unit, although he did not make it to his apartment before the shooting stopped and he returned to see the Honda drive off. The two witnesses, who were not present when the confrontation began, and who could only testify about Allen’s actions in the context of a confrontation they did not observe, were not likely to be found as credible as Allen given their remote connection with the events and the timing of their statements. In any event, given the strong evidence provided by Cervantes, which was confirmed extensively by the testimony of Allen, the physical evidence, and the admissions of Omar and Elizabeth, it is highly improbable there would be a different result had the two witnesses testified.
It was not an abuse of discretion to deny the request for continuance.
IV. Cunningham
Relying on Cunningham v. California (2007) 549 U.S. 270, Omar contends that the trial court violated the Sixth Amendment of the United States Constitution when it imposed an upper term on count 2. Effective March 31, 2007, approximately seven months prior to Omar’s sentencing, the California Legislature revised the state’s sentencing scheme in response to Cunningham. (Stats. 2007, ch. 3, § 2.) Under the former determinate sentencing law, the trial court was required to apply the middle term unless it found there were circumstances in aggravation or mitigation to justify the upper or lower terms. Under the new scheme, the trial court has broad discretion to select among any of the three available terms and need only “state [its] reasons.” (§ 1170, subds. (b), (c); People v. Sandoval (2007) 41 Cal.4th 825, 850.) Since under the new law the upper term is simply the maximum in a range of available sentences, the trial court was permitted to consider any relevant sentencing factors in the exercise of its discretion, including any priors, without violating Cunningham. (People v. Sandoval, supra, at pp. 843-852; People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Here, the trial court complied with the requirements of the new sentencing law in imposing the upper term.
Even under the former determinate sentencing law, the trial court did not violate Cunningham. As the California Supreme Court ruled in People v. Black (2007) 41 Cal.4th 799, “imposition of [an] upper term does not infringe upon [a] defendant’s constitutional right to jury trial [under Cunningham] so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon [a] defendant’s record of prior convictions.” (Id. at p. 816.) In this case, the court observed when denying probation that Omar had a prior weapons-related conviction in 2000. This satisfies the requirement of “one legally sufficient aggravating circumstance” for purposes of imposing the upper term. (Ibid.) “[T]he right to a jury trial does not apply to the fact of a prior conviction.” (Id. at p. 818.) “[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)
V. Corrections to abstract of judgment
In a supplemental brief, Omar contends that the abstract of judgment fails to reflect accurately the sentence imposed. We agree the abstract needs correction. The court initially imposed on count 1 a life term with the possibility of parole plus a 25-years-to-life enhancement pursuant to section 12022.53, subdivision (d). Later that day, however, the court corrected its error, sentencing Omar to 15 years to life with a 25-years-to-life enhancement. This is an authorized sentence, given the jury’s verdict. (§ 664, subd. (a).) In spite of the trial court’s correction of the initial error, the abstract does not correctly state the sentence imposed. It shows both the initial sentence of life with the possibility of parole, plus the corrected sentence of 15 years to life. We order that the abstract be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185, 188 [appellate courts with proper jurisdiction may order correction of abstracts of judgment that do not accurately reflect oral judgments of sentencing courts].)
DISPOSITION
The judgment is affirmed. The trial court shall prepare an amended abstract of judgment that accurately states the sentence imposed and provide copies to the appropriate authorities.
WE CONCUR: Gomes, J., Dawson, J.