IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 20, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DAVID DALE LEE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F10102)
The opinion of the court was delivered by: Raye , P. J.
P. v. Lee CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Charged with attempted murder, defendant David Dale Lee was convicted by the jury of the lesser offense of attempted voluntary manslaughter. The jury found firearm use and great bodily injury allegations to be true. The jury also convicted defendant of possession of methamphetamine and possession of a firearm by a convicted felon. In bifurcated proceedings, the court sustained six prior prison term allegations.
The court sentenced defendant to state prison for an aggregate term of 25 years 10 months.
Defendant appeals. He contends that insufficient evidence supports the trial court's reason for imposition of the upper term for attempted voluntary manslaughter and that the court's reason constituted an impermissible dual use of facts. He also contends that to the extent an objection should have been raised to preserve the issue, counsel rendered ineffective assistance. We reject defendant's contentions.
In December 2008 defendant shot Elias Hernandez. At the time of the shooting, defendant lived in a mobile home next door to the home of Jeanette Khan, who provided him with electricity and food and allowed him to use her kitchen utensils and shower. Hernandez had been staying with Khan and saw defendant come into Khan's house to use the shower. Prior to the shooting, Hernandez denied ever having argued or fought with defendant. Robert Porter and his girlfriend rented a room in Khan's home.
Months before the shooting, defendant asked Khan to sell his truck for $1,000, but she only got $500 for it. She kept the money to pay some bills rather than sending it to him. Khan had not been paid for defendant's use of her home.
On December 15, 2008, Khan, Hernandez, and Porter were in Khan's home waiting for a friend to arrive. Defendant had been in and out of Khan's house, and Khan asked Hernandez to tell defendant to leave because he was spending too much time in the house. Khan had asked defendant repeatedly to leave and he would not. When Hernandez asked defendant to leave, defendant got mad and went to his mobile home.
Shortly thereafter, Hernandez went to defendant's mobile home to make sure they were "cool." He knocked on the door and when defendant opened it, Hernandez saw Lisa Bishop inside. Hernandez explained he wanted to talk to defendant but said it could wait. Defendant said they could talk right away. After the two disagreed about when to talk, Hernandez finally agreed to talk right then. Defendant went into the mobile home, shut the door, and a few seconds later came out. As defendant and Hernandez walked away from the mobile home, Hernandez asked defendant if he was "cool." Defendant responded by taking out a gun and shooting Hernandez in the thigh. Hernandez ran. Defendant fired and hit Hernandez in the buttocks twice. Hernandez fell to the ground. As he tried to get up, defendant approached and shot Hernandez once more in the tailbone. Hernandez pled with defendant not to shoot him again. Hernandez heard defendant's gun click twice more. Hernandez made his way to the house, called 911, and then collapsed.
Officers on patrol heard four gunshots, drove toward the area, and encountered Bishop and defendant. Defendant had no injuries, no ripped clothing, and was not breathing heavily. Within feet, an officer found a handgun with an empty magazine, two baggies of methamphetamine, and two baggies of marijuana. Four shell casings were found at the scene, starting about 20 feet from the mobile home and extending in a line about 48 feet long. Two of the shell casings had been fired from the handgun found, but the other two casings had insufficient markings to make a conclusive determination.
Hernandez was treated at the hospital, where he remained for two weeks and had multiple surgeries. He had to use a cane and later a wheelchair.
At trial, defendant testified that he had a prior dispute with Hernandez about some drugs and that Hernandez had threatened him. On the night of the shooting, defendant claimed he and Hernandez had spoken on the phone about drugs and Hernandez again threatened defendant. Defendant claimed that when Hernandez came to the mobile home, Hernandez struck defendant in the face and again when defendant ran. When Hernandez picked up a tool and approached defendant, defendant claimed he was barely conscious but pulled out his gun and shot at Hernandez four times. Defendant claimed he did not chase Hernandez and had no idea his shots had hit Hernandez.
The probation officer recommended the upper term for the attempted voluntary manslaughter offense, citing "the callous and vicious nature of the crime." Defense counsel filed a statement in mitigation, arguing that the trial court could not impose sentence on the enhancements and then use the same factors to impose the upper term for the offense, and that doing so constituted improper dual use of facts. The People claimed the trial court could aggravate the sentence based on the facts that defendant shot the victim four times, three of which hit the victim's back as he ran away, and that defendant pursued the victim.
The trial court sentenced defendant to state prison as follows: the upper term of five years six months for attempted voluntary manslaughter, a consecutive 10-year term for the gun use enhancement, and a consecutive three-year term for the great bodily injury enhancement; a consecutive one-third the midterm, or eight months, sentence for possession of methamphetamine; a consecutive one-third the midterm, or eight months, sentence for being a convicted felon in possession of a firearm; and a consecutive one year each for the six prior prison terms. In imposing the upper term for attempted voluntary manslaughter, the trial court cited "the nature of the crime[,] the viciousness of the crime." The trial court further stated, "The Court notes the pursuit that was involved in the commission of this crime based on the physical evidence." Defense counsel did not object.
Recognizing that his challenge to imposition of the upper term is forfeited because defense counsel failed to object at sentencing when the court orally pronounced sentence (People v. Scott (1994) 9 Cal.4th 331, 348-356), defendant raises ineffective assistance of counsel. To establish ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "Counsel's failure to make a meritless objection does not constitute deficient performance." (People v. Mitcham (1992) 1 Cal.4th 1027, 1080; People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.) We conclude that any objection would have been meritless.
In imposing the upper term, the trial court determined that the crime was vicious, citing the fact that defendant had pursued the victim as shown by the physical evidence. The record supports the trial court's finding. Four shell casings were found at the scene, starting about 20 feet from the mobile home and extending in a line about 48 feet long toward a fence. Even defendant acknowledges that "[t]he location of the shell casings indicated [defendant] followed after Hernandez . . . ."
Penal Code section 1170, subdivision (b) provides: "[T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed . . . ." California Rules of Court, rule 4.420(c) provides: "To comply with section 1170[, subdivision] (b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so."*fn1 Here, the trial court imposed punishment for the enhancements but cited neither defendant's gun use nor infliction of great bodily injury in imposing the upper term. The court cited, instead, the viciousness of the crime.
Rule 4.421(a)(1) provides: "The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." (Italics added.) Defendant argues that the finding of viciousness was based on the infliction of great bodily injury and his use of a firearm. Not so. The trial court expressly found it was defendant's pursuit of the victim. Distinguishing decisional authorities that involved a defenseless victim who did not provoke or pose a threat to the defendant, and in which viciousness was sustained as an aggravating factor, defendant claims the shooting here began only after Hernandez hit defendant. Had defendant not pursued the victim while firing his weapon, he would have a better argument. The facts in the cases cited are not the only facts upon which a finding of viciousness can be made. "The essence of 'aggravation' relates to the effect of a particular fact in making the offense distinctively worse than the ordinary." (People v. Moreno (1982) 128 Cal.App.3d 103, 110.)
In his reply brief, defendant claims his pursuit of the victim went to the element of his intent to kill. Rule 4.420(d) provides: "A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term." Thus, facts unnecessary to establish elements of the crime may be used to aggravate a sentence. (People v. Castorena (1996) 51 Cal.App.4th 558, 562.)
Defendant's intent to kill was amply demonstrated by the number of shots fired into the victim. (People v. Montes (2003) 112 Cal.App.4th 1543, 1545 [attempted voluntary manslaughter requires an intent to kill]; CALCRIM Nos. 603, 604.) Defendant shot Hernandez once in the thigh, twice in the buttocks, and once in the tailbone. According to Hernandez, he heard defendant's gun click twice more after he pled with defendant not to shoot him again. Defendant's pursuit of the victim was an unnecessary fact to establish the crime of attempted voluntary manslaughter. This was a vicious crime, there was no dual use of facts, and counsel's performance was not deficient.
The judgment is affirmed.
We concur: NICHOLSON , J. HOCH , J.