APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur Jean, Jr., Judge. Affirmed and remanded with directions. (Los Angeles County Super. Ct. No. NA064658).
The opinion of the court was delivered by: O‟NEILL, J.*fn3
CERTIFIED FOR PUBLICATION
After threatening to kill Martin Gomez, appellant Andres Felix fired two gunshots into Mr. Gomez‟s master bedroom window. Felix knew Mr. Gomez was at home, and knew it was highly likely that two children were also in the house. A jury convicted Felix of: attempted premeditated murder, with a finding that he personally discharged a firearm during the commission of the offense; shooting at an inhabited dwelling; and three counts of assault with a firearm with a finding attached to each count that he personally used a firearm. We hold that, under the circumstances, the evidence supports the jury‟s conclusion that Felix had the necessary mental states for the crimes of attempted premeditated murder of Mr. Gomez, and assault with a firearm on the children.
The trial court sentenced Felix to a term of life with the possibility of parole on his attempted murder conviction, plus 20 years for the firearm enhancement. The abstract of judgment indicates that the trial court imposed concurrent determinate terms on Felix‟s four other convictions. We affirm the judgment, but remand the cause to the trial court with directions to issue a corrected abstract of judgment which shows that sentence on one of those four counts is stayed.
FACTUAL AND PROCEDURAL HISTORY
For two years leading up to February 2005, Felix lived with Isvett Ortiz, with whom he had fathered a child. During the evening of February 8, 2005, Isvett was at the home of Felix‟s cousin when Felix arrived. Felix had been drinking; he cussed at Isvett and threatened to kill her if she did not come home. When she declined he hit her on the head twice with a handgun. Felix then took Isvett back to their home, where Felix called Isvett‟s "auntie" because Isvett was bleeding from a cut on her head. At about 11:00 p.m., Isvett‟s mother, Francisca Gomez, arrived at the cohabitants‟ home to take Isvett to the hospital. Felix was holding and playing with a handgun. He yelled, "You want me to kill your daughter?"
After Francisca and Isvett left, Felix called Isvett‟s and Francisca‟s cell phones repeatedly. During a conversation with Francisca, Felix again threatened to kill Isvett.
Later, he said he believed Francisca and Isvett were going to the police station, not the hospital, and stated, "You are going to be sorry. I am going to kill your husband [Martin Gomez]." Francisca called Martin and told him about the threat. She urged him to call the police. Both women turned their cell phones off. Isvett and Francisca did go to the hospital, where Isvett received seven stitches for a cut on the side of her head.
Felix also made "a lot" of phone calls to Martin, Isvett‟s step-father and Francisca‟s husband, at the Gomez residence. He repeatedly asked if Martin knew where Francisca and Isvett were. Each time Martin said he did not know, Felix became angrier. Eventually, Felix told Martin, "Don‟t you think I dare to kill you." Although Martin did not believe Felix meant it, he told his brother Jose, who gathered Jose‟s girlfriend and her child, along with Martin‟s children (14-year-old Lisette Gomez, and 10-year-old Juan Gomez) in a single bedroom. Martin retired to the master bedroom, and turned a television on. Outside the master bedroom is an alley which runs east-west along the north side of the house. Two master bedroom windows, which we shall refer to as the "west window" and the "east window," face the alley. The windows are about ten feet apart. A dresser with a large upright mirror resting on it blocks access to the east window from inside the room.
Shortly after midnight (early on February 9, 2005), while Isvett and Francisca were still at the hospital, Felix drove to the Gomez family home. Felix was familiar with the home from many visits before Isvett moved out. He knew Martin and the two Gomez children lived there, but would not necessarily have known Jose and the others were visiting.
Martin heard Felix‟s car drive up in the alley outside the master bedroom. He heard tires screeching and Felix‟s favorite music playing very loud. When Martin looked out the west window, he saw Felix in the alley on the far side of the car. Felix pointed a.38 caliber handgun at the east window. Martin dropped to the floor and, immediately thereafter, heard two gunshots and things breaking in the room. He heard Felix drive away.
Both bullets penetrated a heavy metal screen and the east master bedroom window, then went through the mirror located immediately inside the window. One round traveled through the bedroom and lodged in the wall of an adjacent hallway. The other, after passing through the master bedroom door and the hallway, glanced off a bathroom door frame, passed through the bathroom, penetrated a mini-blind covering an open bathroom window, and fell to the ground outside the house. That bathroom was shared by the entire family.
In August 2007, the People filed an information charging Felix with the attempted premeditated murder of Martin Gomez (count 1), shooting at an inhabited dwelling (count 2), and assault with a firearm on Martin Gomez, Lisette Gomez, and Juan Gomez (counts 3, 4 & 5). During a three-day jury trial in December 2007, the prosecution presented evidence establishing the facts summarized above. On December 18, 2007, the jury returned verdicts finding Felix guilty as charged. The trial court orally pronounced sentence "forthwith" as follows: Count 1: life with the possibility of parole plus 20 years for the firearm enhancement; Count 2: five year midterm to run concurrently with count 1; Count 3: three year midterm plus four years for the firearm enhancement, stayed pursuant to Penal Code section 654; Count 4: three year midterm plus four years for the firearm enhancement, to run concurrently with count 1; and Count 5: three year midterm plus four years for the firearm enhancement, to run concurrently with counts 1, 2, and 4.*fn1
I. Sufficiency of Evidence of Premeditated ...