(Super. Ct. No. VCF211156A) APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge.
The opinion of the court was delivered by: Cornell, Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Andrew Francisco Velasquez fired a handgun 10 times at an occupied residence. A jury convicted him of numerous crimes and the trial court sentenced him to 38 years to life in prison. Among the convictions were five counts of assault with a firearm, in violation of Penal Code section 245, subdivision (a)(2).*fn2 Velasquez challenges four of these convictions due to erroneous jury instructions and as unsupported by substantial evidence.
The remainder of Velasquez's arguments relate to his sentence. First, he challenges his sentence as violating his constitutional right to be free from cruel and unusual punishment. Next, he argues his sentence for possession of a loaded firearm (former § 12031, subd. (a)(1))*fn3 must either be stayed pursuant to section 654 or vacated because the trial court relied on inappropriate factors in imposing an aggravated term. Finally, he argues the sentence on a second conviction for violating former section 12031, subdivision (a)(1) must be stayed pursuant to section 654.
We conclude some of Velasquez's arguments have merit. First, we agree the four assault with a firearm convictions he challenges must be reversed because of a prejudicial error in instructions. Second, we agree the trial court erred in sentencing Velasquez on the second former section 12031, subdivision (a)(1) conviction, but not for the reason cited by Velasquez. Instead, we will order this conviction vacated because both former section 12031, subdivision (a)(1) convictions were based on the same act, and thus there can be only one conviction. The remainder of the judgment, including the sentence, is affirmed.
Adolfo Hurtado returned home from work about 9:45 p.m. on the day of the shooting. He was in his bedroom asleep when he heard knocking on his bedroom door and was told by a family member that he had heard gunshots and the family was afraid he had been shot. Adolfo's bedroom was located at the back of the residence. Inside the residence at the time were Adolfo's mother, father, and his brother Oliverio Hurtado. Adolfo went to the front yard of the house. The only person he saw outside was his brother Juan Hurtado. He did see a car go by with its lights off. Adolfo thought it was a small Honda.
The house sustained a broken window near where Adolfo's mother was sleeping in the garage and a hole in the wall near the kitchen area. Five separate bullet holes were found in the structure. Ten 9-millimeter shell casings and one intact cartridge were located in the street about 100 feet from the residence. Three bullet fragments were located near the structure.
Adolfo admitted he hung around with "Northerners" in high school because most people in his high school were Northerners (Nortenos). But by the time of the shooting, he and his brother Leo Hurtado, Jr.,*fn4 hung out with "Southerners" (Surenos).
Leo Hurtado, Sr., was in his bedroom watching television when the shooting occurred. His wife was in the garage lying on a bed.
Juan was in the living room of his house with his brother Oliverio when he heard the gunshots. Juan went outside to see what was going on. He heard two car doors close and then saw a black Honda depart. The vehicle had a loud exhaust. Juan also was able to identify the vehicle for the police later that night because of the distinct taillights on the vehicle.
Ali Machuca was in front of her house on the night in question when she heard gunshots. A dark vehicle sped by her house a short while later. Machuca went to the victim's house to make sure no one had been hurt. While there she heard a vehicle that sounded like the same car that had passed by earlier on a nearby street.
Officer Eliseo Mendez heard numerous gunshots while on patrol in the area. Within minutes a black Honda Civic driving at a high rate of speed passed in front of him, failed to stop for a stop sign, turned off its headlights, and then drove into a residential driveway. The passenger exited the vehicle as Mendez exited his patrol vehicle. Mendez ordered the passenger to stay inside the vehicle, but the passenger proceeded to the front door of the residence. Mendez ordered the passenger to show his hands. When the passenger refused, Mendez shot the passenger with his taser. The passenger was Velasquez. Velasquez dropped a nine-millimeter handgun and a loaded magazine when shot with the taser. A second magazine for the gun was found later in Velasquez's pocket.
Mendez later determined the driver of the vehicle was Glenn Martinez, who also was arrested that night.
Martinez was the prosecution's star witness. Velasquez is Martinez's cousin. Martinez was driving his mother's Honda Civic on the night of the shooting. He had gone to the house of his cousin, Ruben Herrera. Velasquez also was there. Around 9:30 p.m., Velasquez asked Martinez for a ride to "drop something off." They had driven for a short distance when Velasquez asked Martinez to turn right on the street where the Hurtados lived. Velasquez told Martinez to stop along the side of the road. Velasquez exited and walked towards the back of the vehicle. Martinez then heard some gunshots that sounded close by. Seconds later Velasquez reentered the vehicle and told Martinez, "Just get the fuck out of here." Martinez never saw Velasquez with a gun. Martinez drove back to Herrera's house. They were pulled over by a police officer just as they arrived at Herrera's house.
In exchange for his testimony, Martinez accepted an agreement that would result in a 12-year prison sentence.
In his statement to the police, Velasquez admitted that he associated with the "Northern" structure prison gang.
Gunshot residue tests performed on Velasquez and Martinez five hours after the incident were negative. Testing was able to determine that one of the bullet fragments shared the same characteristics as the handgun recovered from Velasquez, but there was not enough individual detail for an identification. Five of the cartridge cases found at the scene were extracted from this handgun and most likely were fired from the handgun. The other cartridge cases were similar, but there was not enough detail to permit identification.
The prosecution also offered testimony to establish that Leo, Jr., and Adolfo were members of a Sureno criminal street gang. The expert opined that Oliverio associated with "Southern" gangs, and Velasquez was an active member of the Norteno criminal street gang. Finally, the expert opined the crime was committed for the benefit of the Norteno criminal street gang.
Velasquez presented witnesses who attempted to provide him with an alibi for the time of the shooting.
The third amended information charged Velasquez with shooting at an inhabited dwelling (§ 246) (count 1), shooting from a motor vehicle (§ 12034, subd. (c)) (count 2), one count of assault with a firearm for each of the five people in the residence at the time of the shooting, for a total of five counts (§ 245, subd. (a)(2)) (counts 3-7), grossly negligent discharge of a firearm (§ 246.3, subd. (a)) (count 8), carrying a loaded firearm by a gang member (former § 12031, subd. (a)(1), (2)(C)) (count 9), misdemeanor carrying a loaded firearm (former § 12031, subd. (a)(1), (2)(G)) (count 10), and resisting arrest (§ 148, subd. (a)(1)) (count 11). In addition, the following enhancements were alleged: (1) the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivisions (b)(1)(A) through (C) and/or (d) (counts 1-8 and 10), and (2) Velasquez personally discharged a firearm within the meaning of section 12022.53, subdivision (c) (count 1), personally used a firearm within the meaning of section 12022.53, subdivision (b) (count 1), and personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d) (counts 3-7).
The jury convicted Velasquez of the violations alleged in counts 1, 3, 4, 5, 6, 7, 9, 10 and 11.*fn5 In addition, the jury found true the following enhancements: (1) the crimes were committed for the benefit of a criminal street gang (counts 1, 3-7, and 10); (2) Velasquez personally discharged a firearm within the meaning of section 12022.53, subdivision (c) (count 1); and (3) Velasquez personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d) (counts 3-7).
The trial court sentenced Velasquez to an indeterminate term of 15 years to life on count 1 and a determinate term of 23 years consisting of an aggravated term of three years on count 9 and 20 years for the section 12022.53, subdivision (c) enhancement on count 1. The determinate sentence was ordered to run consecutively to the indeterminate sentence. The sentences on the remaining counts were either stayed pursuant to section 654 or imposed concurrently.
I. Assault with a Firearm
Velasquez was charged with five counts of assault with a firearm, one for each person inside the residence at the time of the shooting. The prosecution's theory was that Velasquez shot at the garage 10 times, thus putting each person inside the house in jeopardy. Count 3 alleged the victim was Juan, count 4 alleged the victim was Oliverio, count 5 alleged the victim was Adolfo, count 6 alleged the victim was Maria, and count 7 alleged the victim was Leo, Sr.
Velasquez concedes that he has no grounds to challenge the count involving Maria since the shots were directed at the garage and Maria was inside the garage at the time of the shooting. He does, however, argue the remaining four counts must be reversed for two reasons. First, he asserts the convictions were not supported by substantial evidence because there was no evidence these four victims were in an area of the house that put them at risk for being struck by a bullet. Second, he argues the instructions improperly allowed the jury to convict him for these counts simply because Maria was at risk of being struck by a bullet.
A. Sufficiency of the Evidence*fn6
To assess the evidence's sufficiency, 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. (People v. Maury (2003) 30 Cal.4th 342, 403.) 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 Velasquez guilty beyond a reasonable doubt. (Id. at p. 396.)
Here, the evidence was not disputed. All of the shots were directed at the garage. Only Maria was in the garage when the shots were fired. Therefore, the issue is whether Velasquez could be convicted of assault with a firearm when the remaining victims were in the house, but not in the room at which the shots were directed. We also note there was no evidence that any bullet entered any room other than the garage; nor was there evidence of the potential for such an occurrence, i.e., there was no evidence that a bullet shot through the garage window would pass through a wall and enter another room. Finally, there was no evidence that Velasquez knew where the victims were located inside the house.
We now turn to the relevant legal principles. "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) The crime of which Velasquez was convicted, assault with a firearm (§ 245, subd. (a)(2)), is an aggravated form of assault with greater penalties. (People v. Murray (2008) 167 Cal.App.4th 1133, 1139.)
Assault is a general intent crime that is "'established upon proof the defendant wilfully committed an act that by its nature will probably and directly result in injury to another,...' [Citations.]" (People v. Chance (2008) 44 Cal.4th 1164, 1169 (Chance).) Velasquez does not contest that the charged act, firing a handgun numerous times at an inhabited dwelling, established the intent necessary to support the conviction.
Instead, Velasquez focuses on the requirement that he must have had a "present ability" to commit a violent injury on another person. He argues that he did not have the present ability to injure the four victims who were not in the garage because he aimed at the garage and all the bullets struck in and around the garage. Velasquez claims that he did not have the present ability to injure the four victims that were not in the garage because they were not in the area at which he was shooting.
The present ability element of assault "is satisfied when 'a defendant has attained the means and location to strike immediately.' [Citations.] In this context, however, 'immediately' does not mean 'instantaneously.' It simply means that the defendant must have the ability to inflict injury on the present occasion. Numerous California cases establish that an assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be 'immediate,' in the strictest sense of that term." (Chance, supra, 44 Cal.4th at p. 1168, fn. omitted.)
The factual situations in which a defendant has been found to have the present ability to inflict injury on the victim refute Velasquez's argument. In Chance, sheriff's deputies drove to a residence in an attempt to arrest Chance on outstanding warrants. Chance attempted to escape while armed with a loaded semiautomatic handgun, although a cartridge had not been inserted into the firing chamber of the weapon. Chance would have had to pull the slide of the handgun back to insert a cartridge into the firing chamber.
Sheriff's deputies chased Chance when he ignored their order to stop. When Chance rounded the front end of a travel trailer, the trailing deputy suspected a potential ambush, so he circled around the back of the trailer. When the deputy peered around the corner of the trailer, he observed Chance "pressed against the trailer, facing the front end. He was holding the gun in his right hand, extended forward and supported by his left hand." (Chance, supra, 44 Cal.4th at p. 1168.)
Relying on numerous cases, the Supreme Court rejected Chance's argument that he did not have the present ability to inflict injury on the deputy because the deputy was behind him. "Although temporal and spatial considerations are relevant to a defendant's 'present ability' under section 240, it is the ability to inflict injury on the present occasion that is determinative, not whether injury will necessarily be the instantaneous result of the defendant's conduct." (Chance, supra, 44 Cal.4th at p. 1171.) "Thus, it is a defendant's action enabling him to inflict a present injury that constitutes the actus reus of assault. There is no requirement that the injury would necessarily occur as the very next step in the sequence of events, or without any delay.... 'There need not be even a direct attempt at violence; ...