Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F02391
RAYE, Acting P. J.A jury convicted defendant Valiliano Tuigamala, Jr., of one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and two counts of discharging a firearm in a grossly negligent manner (§ 246.3), and found that he personally used a firearm (§ 12022.5, subd. (a)). The trial court sentenced defendant to six years in prison.
All further statutory references are to the Penal Code.
On appeal, defendant contends (1) the appellate record is inadequate to permit meaningful review, (2) he cannot be convicted of both assault with a deadly weapon and negligent discharge of a firearm for the same act, (3) insufficient evidence supports one count of discharging a firearm in a grossly negligent manner, and (4) the restitution order was unauthorized. We shall modify the judgment to strike the restitution order and affirm the judgment as modified.
BACKGROUND
Valiliano Tuigamala, Sr. (Tuigamala) lived in a Sacramento duplex with his girlfriend; his son (defendant); and defendant’s girlfriend, Precious. According to his statement to the police, Tuigamala returned home and found several people smoking drugs in a back room. Tuigamala kicked them out of the house and later went outside to board up a window.
In his trial testimony, Tuigamala identified his daughter Anna, Precious, and two unnamed men as the people he found smoking drugs in the house.
Defendant drove up about 20 minutes later and twice tried to run over Tuigamala, who had to jump out of the way to avoid being hit. Tuigamala then ran toward a neighboring residence and got behind a parked vehicle.
Defendant got out of his car, grabbed a broomstick from the ground and threw it through a window, then challenged Tuigamala to a fight. When Tuigamala stayed back by the parked vehicle, defendant returned to the driver’s side of his car, pulled out a black.32-caliber semiautomatic handgun, threatened to kill Tuigamala, and fired two rounds.
Cassandra Arruda lived in the adjoining duplex with her daughter, adult son Brian Arruda, and 10-year-old son S.D. Brian was in the kitchen cooking on the day of the incident when he felt a rumble from the outside as if something had hit the house. He looked out the front door and saw a car, driven by defendant, hitting the duplex.
Because Cassandra and Brian have the same surname, to avoid confusion we will refer to them by their first names.
After Brian went to his mother’s bedroom and told her to come out, the two of them heard repeated knocks on the door. One of them opened the door and found Tuigamala, who screamed at them to call the police as defendant was trying to kill him.
Cassandra went outside; S.D. stood at the doorway. They saw defendant ram the car into the duplex, back up, hit the duplex again, and stop. Each saw defendant get out of the car and break a window with a nearby rake.
Defendant returned to the car, bent over next to the driver’s side door, and stood up with a gun. He aimed the gun at Tuigamala and said, “You’re dead, Dad.” Cassandra yelled “Gun,” pulled Tuigamala and her sons into the house, and closed the door. They heard one gunshot after the door closed and heard another as Brian called 911.
Patricia Bennett lived diagonally across the street from Tuigamala. She heard a car racing, then a crash, and looked out her front door in time to see a white car pulling into Tuigamala’s driveway. An obstructed view kept her from seeing where the car was going, but she heard another crash followed by voices arguing. Bennett then heard a gunshot and went inside to call 911. She heard two more gunshots while inside the house.
Heather George lived across the street and two houses down from Tuigamala. While cleaning house, she heard a car’s engine and tires “revving and screeching.” Looking across the street from her window, she saw a white car back in and out of Tuigamala’s driveway three to four times. She went about her business and then heard a crash “like a car wreck” five to 10 minutes later. George looked out the window again and saw “the back end of the sticking out... from in front of [Tuigamala’s] house.” She went back to her cleaning and heard a gunshot five or 10 minutes later, and then two more gunshots two minutes after that. Vivian Bradley lived in Tuigamala’s neighborhood and heard two shots on the day of the incident.
Testifying, Tuigamala either denied or did not remember telling the police officer that defendant tried to shoot him, had a gun, threatened to kill him, or tried to hit him with the car.
Tuigamala testified he woke up around 3:00 p.m. and started drinking with his girlfriend. After finding Anna, Precious, and two men smoking drugs in a back room, he yelled at them to get out and said they could not come back.
About two hours later, Tuigamala went outside to board up an open window so the people he had ejected could not enter that room again. Defendant arrived and pulled into the driveway, accidentally hitting a weight set that was in the way. Tuigamala, who was holding a hammer, approached defendant and they argued over Tuigamala’s kicking defendant out of the house. Defendant got out of the car and Tuigamala threatened to beat him up if he did not leave. Tuigamala never saw defendant with a gun.
Anna testified that she and Precious went to a friend’s house after Tuigamala threw them out of his house. After they met defendant there and told him what had happened, defendant and the two young women returned to Tuigamala’s house in defendant’s white car.
Defendant pulled in and parked by the front door of his father’s house. While defendant remained “pretty calm,” a hostile Tuigamala told him to leave. According to Anna, defendant started to have a “seizure[] attack” and backed up the car, hitting a mailbox, and then went forward, hitting the weight bench or a washing machine that was in front of the door and getting stuck. Defendant backed up again and got into an argument with his girlfriend.
Anna heard two gunshots while defendant was standing outside the car, but she never saw him holding a gun. However, Anna told an officer she saw defendant fire into the ground once and heard another shot after she looked away. According to the officer who interviewed her, Anna said defendant fired once into the air, but she could not see where the second shot went.
Two spent.32-caliber cases and one unfired.32-caliber bullet were found near the front of Tuigamala’s house. The cases were consistent with having been fired from a semiautomatic weapon.
DISCUSSION
I. The Appellate Record
A. Adequacy of the Record
Defendant asserts the appellate record is deficient, preventing meaningful review of the court’s responses to several questions submitted by the jury. We disagree.
Defendant’s opening brief points out he had to file the brief before the trial court issued a settled statement addressing the omissions in the appellate record. However, defendant’s appellate counsel extensively discussed the problems in the record with the trial court, and the court’s replies to counsel’s concerns are addressed in defendant’s opening brief. The trial court subsequently incorporated these replies into the settled statement without any meaningful change. In his reply brief, filed after the settled statement, defendant relies on his opening brief without making any comment regarding the settled statement.
“[S]tate law entitles a defendant only to an appellate record ‘adequate to permit [him or her] to argue’ the points raised in the appeal. [Citation.] Federal constitutional requirements are similar. The due process and equal protection clauses of the Fourteenth Amendment require the state to furnish an indigent defendant with a record sufficient to permit adequate and effective appellate review. [Citations.]... The defendant has the burden of showing the record is inadequate to permit meaningful appellate review. [Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 857-858.) Reconstructed exhibits and settled statements may provide an adequate record where the original record is lost or damaged. (People v. Osband (1996) 13 Cal.4th 622, 661-663.) The court’s findings regarding the reconstruction of records are essentially factual and reviewed “on a deferential substantial evidence standard. [Citation.]” (Id. at p. 662.)
B. Read-Back of Testimony
The jury first asked for a read-back of Brian’s testimony, Cassandra’s testimony about the gun, and Anna’s testimony about the gun. Defendant states there is no record in the clerk’s or reporter’s transcript of the testimony being read back.
According to the court’s settled statement, “While there is no record of this request being honored, all jury requests for readback are honored. Since all requests are honored, the court does not document this occurring on the record.”
As there was no objection to the court’s failure to respond to this question, we presume the court followed its regular practice and read the testimony to the jury. Since the failure to object also forfeits any contention on appeal regarding the court’s response (People v. Ross (2007) 155 Cal.App.4th 1033, 1048), defendant would not be prejudiced even if the record were inadequate on this point.
C. Jury Question Regarding Intent
The second jury question was: “We would like to have clarified between page 17 regarding intent compared to page 19 regarding intent. Is there a contridiction [sic]?” The clerk’s transcript shows the court considered the question, and the reporter’s transcript of defendant’s objection to the response indicates the court gave a response. Defendant points out the court’s response is not found in the record.
The settled statement notes the court addressed a response to the jurors and assumed it was satisfactory to both counsel. However, the clerk did not contact defense counsel for his final approval. The court’s answer was discussed with both counsel on October 22. That discussion, which contains defendant’s objection to the court’s answer, is in the record.
Defense counsel objected to the narrative in the court’s answer and that there was no mention of wrongful intent. The parties’ discussion makes clear that the reference to “page 17 regarding intent” in the jury’s question referred to Judicial Council of California Criminal Jury Instructions (2007) CALCRIM No. 250 (Union of Act and Intent: General Intent), and the reference to “page 19 regarding intent” was to CALCRIM No. 875 (Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury). The court overruled both objections.
The jury instructions in the clerk’s transcript are rough drafts of the instructions sent to the jury, so the page numbers do not coincide with the page numbers referred to in the jury’s question. In addition, the clerk’s record lacked the first half of CALCRIM No. 875, which defines assault with a deadly weapon. However, the court had a copy of the instructions when discussing the response with counsel, and the court correctly identified the relevant page numbers of the instructions during the discussion.
In the settled statement, the court infers that both parties had a copy of the court’s response to jury question No. 2 when they were discussing the response. While the response was not in the record, the court recreated it “by having a court clerk study the ribbon from the typewriter use[d] to type the responses.”
The recreated response reads as follows:
“On page 17, it says that, to be guilty, the person must commit the prohibited act (which is defined in other instructions), ‘but he must do so intentionally or on purpose’. This means that the act must be done ‘intentionally or on purpose’ as distinguished from accidentally doing the act. If the act in question is discharging a firearm, that act must be done ‘on purpose’ and not accidentally. [¶] On page 19, the instruction provides that ‘the People are not required to prove that the defendant actually intended to use force against someone when he acted.’ [¶] On page 18, this requirement is referred to as doing the act ‘willfully’. This is referring to the concept that the People do not have to prove that the defendant’s purpose and his intention was to inflict an injury upon a victim. The People do not have to prove that the defendant ‘intended’ to inflict an injury upon some person. If the act of the defendant meets the four requirements set forth on page 18, then it does not matter what his subjective intention may have been. [¶] I recognize these terms may be quite confusing. If this explanation does not adequately assist you, please advise and I will make further explanation.”
The trial court acknowledged that having a clerk recreate the response from a typewriter ribbon is “not scientific and in this case has some inaccurate parts and sequences.” It admitted parts of the recreation were confused; however, errors could have been pointed out by counsel, and the court frequently makes corrections to the rough draft and gives another draft to the clerk for retyping before sending it to the jury. Defendant asserts the recreation is inadequate in light of the court’s admissions.
The clerk was able to use this same method to recreate “an exact rendition” of the court’s response to another question. In addition to having the clerk read the ribbon, the court also looked at the instructions referred to in the jury’s question, the court’s general understanding of how it would respond to such a question, and its “recollection of the theme of the response” to help reconstruct the response.
The recreated response is consistent with trial counsel’s objections, as the response is narrative and does not address wrongful intent. Defense counsel also twice quoted the response during the discussion on his objection, with both quotes matching portions of the recreation.
While there is no guarantee the recreation is exact, the clerk was able to exactly recreate another response using this method, and the recreation is in accordance with the parties’ on-the-record discussion of the court’s response. We are convinced that substantial evidence supports the trial court’s recreation.
Even if the recreation is incomplete, defendant has not carried his burden of proving prejudice as neither of the objections he made at trial raise the possibility of reversible error. While the response was narrative, trial counsel pointed to no legal error in the narrative, merely stating he preferred that the court tell the jury to look at the instructions rather than explaining what the terms meant.
Defense counsel’s other objection to the response was that in paraphrasing CALCRIM No. 250, the response did not refer to the requirement that defendant have a wrongful intent. The court’s response, as recreated in the settled statement, did not tell the jury to remove the concept of wrongful intent from CALCRIM No. 250. It instead focused on another part of the instruction, namely the difference between intentional and accidental acts, which was the focus of the jury’s question. We are convinced that in light of the overwhelming evidence of defendant’s guilt and the nature of the objections, any possible error in the court’s response would be harmless under any standard.
CALCRIM No. 250, as given to the jury, reads, in pertinent part: “The crimes or other allegations charged in Counts 1, 2 and 3 requires proof of the union, or joint operation, of act and wrongful intent.”
D. Jury’s Request for Clarification of Terms
The jury’s third question asked for clarification of the terms “willfully” and “reasonable person.” The clerk’s transcript contains the court’s reply, but defendant notes there is no reporter’s transcript or actual copy of the reply given to the jury. The jury also asked fourth and fifth questions, both on the definition of assault, and the replies are found in the minutes. Defendant again finds fault as the replies are not in the reporter’s transcript, there are no copies of the actual replies in the clerk’s transcript, and a discussion in chambers regarding the questions was not in the record.
The question is incorrectly numbered “2” in the clerk’s transcript.
The settled statement gives the same reply for all three: that the court’s practice is to inform the parties of the proposed reply, and to send the reply to the jury if there is no objection. If there is any objection, the objection is placed on the record. The court also notes a copy of the response to question No. 3 is in the minutes, as are the court’s written responses to questions No. 4 and 5.
The clerk’s minutes may provide a sufficient appellate record. Defendant provides no analysis as to why the record on these questions is inadequate. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1425-1426.) In the absence of any objection to the court’s responses, we find the record adequate.
II. Lesser Included Offense
Defendant claims he cannot be convicted of both assault with a firearm and negligent discharge of a firearm for the same act. He is wrong.
Section 954 provides that a defendant may be charged with and convicted of “any number of the offenses charged” from a single course of conduct. Lesser included offenses are an exception to this rule. “A defendant... cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act.” (People v. Sanchez (2001) 24 Cal.4th 983, 987.)
“Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117.) “Courts should consider... only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.” (People v. Reed (2006) 38 Cal.4th 1224, 1231.)
The legal definition of assault with a firearm does not necessarily include discharge of the firearm in a grossly negligent manner. The elements of assault with a firearm pursuant to section 245, subdivision (a)(2) are: (1) a person willfully committed an act that by its nature would probably and directly result in a battery, with actual knowledge of such facts; (2) at the time the act was committed, such person had the present ability to apply physical force to the person of another; and (3) the assault was committed with a firearm. (See CALRCIM No. 875; People v. Cook (2001) 91 Cal.App.4th 910, 920.) The elements of discharge of a firearm in a grossly negligent manner pursuant to section 246.3 are: “‘(1) the defendant unlawfully discharged a firearm; (2) the defendant did so intentionally; (3) the defendant did so in a grossly negligent manner which could result in the injury or death of a person.’ [Citations.]” (People v. Clem (2000) 78 Cal.App.4th 346, 350 (Clem).)
The definition of assault with a firearm under section 245, subdivision (a)(2) does not necessarily include discharge of the firearm in a grossly negligent manner pursuant to section 246.3. As a preliminary matter, section 246.3 requires actual discharge of the firearm, but one can commit assault with a firearm without discharging the weapon. (See People v. Fain (1983) 34 Cal.3d 350, 356-357 & fn. 6.) In addition, section 246.3 requires a shooting done in a “manner which could result in injury or death to a person,” while assault with a firearm requires only that the application of some “physical force” against the victim was likely. (People v. Colantuono (1994) 7 Cal.4th 206, 214.) The physical force necessary for an assault is not synonymous with bodily injury. (Ibid.)
One may commit assault with a firearm without discharging the firearm in a grossly negligent manner. There was no error in convicting defendant of both assault with a firearm and discharging a firearm in a grossly negligent manner for the same act.
III. Substantial Evidence
Defendant was convicted of two counts of discharging a firearm in a grossly negligent manner, one for each shot he fired. He argues insufficient evidence supports the second count, count five, because there is no evidence of where defendant was aiming when he fired the second shot. We disagree.
As we have already discussed, the elements for discharging a firearm in a grossly negligent manner are the willful and unlawful discharge of a firearm in a grossly negligent manner that could result in the injury or death of a person. (§ 246.3, subd. (a).) Although no one saw who fired the second shot, witnesses saw defendant fire the first shot and heard a second shot soon after. The presence of two spent bullet cases near Tuigamala’s front door is further proof that the shots were fired by a single shooter, defendant.
Defendant did not fire the gun in an isolated area posing no threat to human life. (Clem, supra, 78 Cal.App.4th at p. 352.) He twice fired the gun in a residential neighborhood with his father, sister, girlfriend, neighbor, and the neighbor’s adult and 10-year-old sons all nearby. This was grossly negligent and posed a danger to human life no matter where defendant aimed the gun.
IV. Restitution
As a result of intimidation tactics by defendant’s girlfriend and other people, the Sacramento County District Attorney’s Office and the Department of Justice relocated Cassandra Arruda and her family during the trial at a cost of approximately $7,200. While the People admitted there is no evidence “showing the defendant directly encouraged or organized those efforts,” because defendant’s “criminal actions were the cause” of the Arruda family’s having to move, the People sought restitution from defendant for this amount.
The court ordered defendant to pay $7,200 to the district attorney’s witness relocation program. Defendant contends the order was unauthorized and he has a right to a jury trial on the restitution question. We agree with the first contention.
Defendant argues and the Attorney General concedes that restitution to the witness relocation program was not authorized because the program was not a victim of his crimes. We accept the concession.
“The court must order direct victim restitution in ‘every case in which a victim has suffered economic loss as a result of the defendant’s conduct.’ [Citations.]” (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409; see § 1202.4, subd. (f).) “We review a restitution order for an abuse of discretion and will not disturb the trial court’s determination unless it is arbitrary, capricious and exceeds the bounds of reason. [Citations.]” (Maheshwari, at p. 1409.)
“The term ‘direct victim’ ‘carried a precise meaning’ before it was added to section 1202.4 in 1994, and courts have ‘preserved’ that meaning. [Citation.] In the context of entities, the California Supreme Court has defined ‘direct victim’ as: ‘entities that are the “immediate objects of the... offenses”’; or ‘“entities against which the... crimes [have] been committed.”’ [Citation.] The state high court has defined ‘direct’ as: ‘“straightforward, uninterrupted, [or] immediate” in time, order or succession, or “proceeding [in logic] from antecedent to consequent, from cause to effect, etc., uninterrupted,” or generally “[e]ffected or existing without intermediation or intervening agency; immediate.” [Citation.] In legal contexts, “direct” similarly stands for “... proximate; by the shortest course; without circuity; operating by an immediate connection or relation, instead of operating through a medium....” [Citation.]’ [Citation.]” (People v. Slattery (2008) 167 Cal.App.4th 1091, 1095-1096.)
While the witness relocation program paid Cassandra’s moving expenses, the program was not a direct victim of defendant’s crimes. The restitution award was therefore unauthorized.
The Attorney General goes on to contend we should award the $7,200 in restitution to Cassandra, the alleged victim of defendant’s section 246.3 convictions. As defendant correctly points out, Cassandra was not a victim of defendant’s crimes.
The Attorney General argues that people in close proximity to the negligent discharge of a firearm are considered separate victims for the purpose of multiple punishments under Penal Code section 654. However, the cases cited by the Attorney General in support are distinguished from the instant case.
In People v. Higareda (1994) 24 Cal.App.4th 1399 (Higareda), Kathy Brook, her fiancé Gordon Wong, and Brook’s student Sumi Inoye returned to their car when a man pointed a shotgun at Wong’s back while the defendant ordered Brook to open the passenger window. (Id. at p. 1404.) The defendant and the other man took money, Wong’s wallet, and Brook’s car key, threatening to harm them if they tried to attract attention. (Ibid.) After the robbers drove off in a red Camaro, Brook gave Wong a spare key and they followed the robbers. (Ibid.) The Camaro stopped about one mile later and the defendant and his accomplice got out of the vehicle. The defendant fired a shotgun at the pursuing victims. (Ibid.)
The defendant in Higareda was convicted of robbery against Wong and Brook along with discharging a firearm with gross negligence. (Higareda, supra, 24 Cal.App.4th at pp. 1403, 1413.) He argued that section 654 precluded punishing him for firing the shotgun with gross negligence because that act was indivisible from the robberies of Wong and Brook. (Higareda, at p. 1413.) The Court of Appeal rejected his claim, holding Inoye was a separate victim of the discharging a firearm offense. (Ibid.)
There is no evidence defendant fired the weapon at Cassandra or her house. Defendant’s criminal activity was directed against his father rather than Cassandra. While he was charged with assault with a deadly weapon against Cassandra, a mistrial was ordered on that charge when the jury could not reach a decision.
Cassandra saw defendant with the gun, but she was behind a closed door when he fired it. Although the crime of discharge of a firearm in a grossly negligent manner involves a risk to the safety of other people, we are unwilling to extend the definition of direct victim to Cassandra, who is more properly characterized as a witness.
The other case cited by the Attorney General, In re Anthony M. (2007) 156 Cal.App.4th 1010, does not change our analysis. The minor in Anthony M. was convicted of discharging a firearm in a grossly negligent manner after accidentally shooting his friend in the head while playing with a loaded gun. (Id. at pp. 1014-1015.) The case addressed whether restitution should be the amount billed by the medical provider or the amount reimbursed by Medi-Cal (id. at pp. 1013, 1019); whether the boy was a victim for the purpose of restitution was not at issue in Anthony M. (see id. at p. 1014). While negligent discharge can have direct victims for the purpose of restitution, Cassandra’s relation to the negligent discharge offenses is too attenuated for her to be considered a victim.
The Attorney General also claims the issue of whether Cassandra was a victim was forfeited by defendant’s failure to raise it in the trial court. “‘It is well established that when the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court.’ This rule also applies to sentences which are unauthorized because of an error in the matter of restitution. [Citation.]” (People v. Rivera (1989) 212 Cal.App.3d 1153, 1163-1164.) Because neither Cassandra nor the witness relocation program was a victim of defendant’s crimes, the restitution order was unauthorized, an error we may correct on appeal in the absence of an objection.
We shall modify the judgment to strike the $7,200 restitution award to the witness relocation program. Since we also find Cassandra was not a victim, we do not address defendant’s jury trial contention.
DISPOSITION
The judgment is modified to strike the $7,200 in restitution to the Sacramento County District Attorney’s Office witness relocation program. As modified, the judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.