P. v. Guzman
Filed 1/22/14 P. v. Guzman CA2/3
OFFICIAL REPORTS
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DENNIS
GUZMAN,
Defendant and Appellant.
B242359
(Los
Angeles County
Super. Ct. No.
BA385965)
APPEAL
from a judgment of the Superior Court of
Los Angeles County, Gail Ruderman Feuer, Judge. Affirmed.
Mark
S. Devore, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Lawrence M. Daniels, Steven E. Mercer and Alene M. Games,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Dennis Guzman
appeals the judgment following a jury
trial in which he was found guilty of two counts of assault with a
semiautomatic firearm, with findings of a personal use of a firearm (Pen. Code,
§§ 245, subd. (b), 12022.5, subd. (a); counts 3 and 4),
and of one count of unlawfully carrying a loaded firearm (§ 12031, subd. a)(1);
count 5).
At sentencing, the
trial court selected count 4, assault with a semiautomatic firearm, as the base
term. It imposed the middle term of six
years, enhanced by an upper term of 10 years for the firearm use enhancement, a
total of 16 years in state prison. It then
imposed concurrent terms of 16 years for the count 3 assault with a
semiautomatic firearm, enhanced with a 10-year upper term for the firearm use,
and of two years for count 5, carrying a loaded firearm, the latter of which
was stayed pursuant to section 654.
CONTENTIONS
Guzman (appellant)
contends: (1) the evidence is
insufficient to support his convictions of assault with a semiautomatic firearm
in counts 3 and 4 as he had no “present ability to inflict injuryâ€; (2) the
trial court erred by failing sua sponte to instruct the jury with a unanimity
3500; and (3) there was Cunningham
error (Cunningham v. California
(2007) 549 U.S. 270 (Cunningham)) as
he was denied a jury trial on aggravating factors used to impose the firearm
use enhancements, or trial counsel
rendered ineffective assistance of trial counsel as counsel failed to demand a
jury trial on aggravating factors.
BACKGROUND
1. The
prosecution’s case-in-chief.
a.
The assaults.
Xochitl
Rivas (Rivas) was a volunteer drug and alcohol counselor at an alcohol and drug
rehabilitation center, “La Decision Es Tuya,†which translated into English
meant, “The Decision Is Yours.†At 4:00 p.m. on June 26, 2011, she was driving
to work with her eight-year-old daughter, Nayemma. Several minutes away from work, Rivas saw
appellant lying on the sidewalk. It was
a hot day, and appellant had ants crawling on his face. Appellant looked and smelled as if he was
drunk.
Rivas spoke to
appellant in Spanish and invited him to go with her to the rehabilitation
center.
disoriented but got into her car, and she drove him there. They conversed as they drove. When they arrived, appellant got out of the
car and stood looking at the center’s sign, “ ‘Alcoholics Anonymous. The Decision Is Yours.’ †His face took on an expression of surprise. He said, “ ‘No, No, I don’t want
this.’ †Rivas explained that his
participation was voluntary.
Chavez, a worker at
the center, walked out the center’s locked front door to meet Rivas and
relocked the door. Rivas turned to Chavez and told him appellant
was apparently reluctant. Chavez said,
“It’s for his own good.†Appellant
looked angry. Rivas repeated, “ ‘If
you don’t want to come in, don’t go in.
It’s your decision.’ â€
Appellant backed up
four steps, took out a handgun, raised it over his head and used his other hand
to move something atop the gun. He
pointed the gun at Chavez and pulled the trigger. The gun clicked and failed to discharge. Chavez ran inside and locked the door. Appellant lowered the gun and raised it
again, moved something atop the gun, then pointed it at Nayemma. Rivas said, “ ‘Please don’t shoot at my
daughter,’ †and pushed Nayemma
behind her. Appellant pulled the trigger
while pointing the weapon at Nayemma.
Rivas heard a click, and again the gun failed to discharge.
Appellant raised
the gun a third time, made the same motion atop the gun and pointed it at
Rivas. He attempted to discharge the gun
again, but it did not fire. Then
appellant tripped and fell backwards.
Chavez let Nayemma
into the building and relocked the door.
Rivas hesitated but went over and stomped on appellant’s hand. Appellant let go of the gun, and Rivas took
it and entered the locked rehabilitation center.
Appellant paced
outside the rehabilitation center demanding the return of his gun. The police arrived and found appellant
walking a short distance away. Rivas
identified him as her assailant. When
the officers contacted appellant, he appeared intoxicated and was
combative. Appellant had 23 live rounds
of ammunition for the handgun in a pants pocket.
b.
testimony.
Los Angeles Police
Officer Gabriel Medina (Officer Medina) testified that at the assault scene, he
took the handgun from Officer Twycross, who was speaking to Rivas. He unloaded it. There were five bullets in its magazine and
chamber, and the handgun was ready to be fired. However, the five bullets in the chamber and
magazine were loaded into the chamber and magazine backwards. The bullet in the chamber was not “fully
seated,†and the slide was not completely closed.
Officer Medina
explained to the jury how the handgun operated by loading two dummy rounds
backwards into appellant’s gun. The
dummy rounds fed from the magazine into the chamber. However, the dummy rounds were a different
size than the bullets in appellant’s magazine, and they currently were not
causing a jam. The dummy rounds did
block the slide from moving completely, which prevents that gun, if it is
operating as originally designed by the manufacturer, from firing. In the backwards-loaded condition the firearm
was in when the officers recovered the weapon, the assailant could pull the
trigger, but the hammer initially would not drop. When the dummy rounds were fed into the
chambers backward, it prevented the slide from closing completely, and the gun
jammed. However, the officer was able to
manipulate the handgun until the dummy bullet compressed. At that point, the slide closed a little
more, and the hammer was able to drop.
Officer
Paul Choung, a firearms expert, testified that the recovered handgun was a
Browning BDA-380 semiautomatic firearm.
The handgun was “fully functional.â€
He explained once the magazine is in the gun, you can “rack†the
slide back and when the slide moves forward, a bullet is chambered. In this position, the gun is cocked, the
operator can pull the trigger, and the gun will discharge. To fire the first round from appellant’s firearm,
you have to “rack†the slide, or pull it toward you. After the first round, the gun automatically
feeds the next bullet in the magazine into the chamber. If the gun jams, you will have to move
the slide backwards and forwards manually. If the slide is not all the way forward,
you would not be able to pull the trigger or to hear the “main click†of the
hammer dropping. Once you initiate
firing by pulling back on the slide, you can pull the trigger and discharge the
firearm twice before it again locks in its open position.
When appellant’s
firearm was working properly, one cannot discharge a bullet from the chamber
unless the magazine is inserted.
Appellant’s firearm, however, was fully functional without the magazine. If the gun jammed or malfunctioned, one can
correct the malfunction by moving the slide back and forth to eject the bullet
and remove any obstruction in the chamber. Then the handgun can be reloaded from the
magazine by pulling back the slide and chambering a bullet.
2. The defense.
Anthony Paul, a former Philadelphia police
officer and firearms expert, testified that he used live ammunition, not a
dummy round, to test appellant’s handgun.
When live ammunition was loaded in the magazine backwards, the bullets
did not enter the chamber; the bullet was forced down into the magazine well. The click heard when the trigger is pulled is
not the hammer falling. The
improperly-fed cartridge holds the slide to the rear in a position that does
not permit the disconnector to engage. With
the backwards feed, the firing pin did not strike the bullet three out of three
times he pulled the trigger attemping to discharge the handgun. He opined that the click Rivas heard when
appellant pulled the trigger was the slide “running home†on the improperly-fed
cartridge. He concluded that the handgun
would not discharge a round when live rounds were improperly loaded into the
magazine.
During
cross-examination, Paul explained that in his 50 years of experience,
he had never seen this particular firearm discharge when the bullets were
fed into the magazine and chamber backwards.
He asserted, “I can’t say it’s not going to happen, but I can say I
never experienced it.†He said that a
dummy round, which lacked any explosive filler, fed into the chamber backwards
could enter a chamber when the slide was maneuvered, compressing the
round. When the prosecutor asked the
expert to use live ammunition to demonstrate his experiment with the gun, Paul
refused. He said there is a remote
possibility that even the live ammunition could compress, and the explosives in
a bullet are very sensitive. If the
firing pin hit the wrong end of the bullet, it is possible the bullet would
explode and matter would be discharged out the handgun’s barrel at great
velocity.
Paul admitted that
if the handgun jammed due to improper feed, the cartridge can be removed quite
quickly by pushing the slide and simultaneously hitting the magazine release
button, ejecting the improperly seated round in the chamber. At that point, the gun can be discharged
immediately by manually reinserting a round into the chamber. It is awkward to load the handgun this
way, but it can be done.
DISCUSSION
1. Sufficiency of the evidence.
Recently, in People
v. Whisenhunt (2008) 44 Cal.4th 174 (Whisenhunt),
the California Supreme Court summarized the well-established standard of
review.
“ ‘In reviewing a challenge to the sufficiency of
the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.â€
[Citations.] We presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases
in which the prosecution relies primarily on circumstantial evidence . . .
. [Citation.] “[I]f the circumstances reasonably justify
the jury’s findings, the judgment may not be reversed simply because the
circumstances might also reasonably be reconciled with a contrary
finding.†[Citation.] We do not reweigh evidence or reevaluate a
witness’s credibility. [Citation.]’ [Citation.]â€
(Whisenhunt,
“ ‘ “Although an appellate court will not uphold a
judgment or verdict based upon evidence inherently improbable, testimony which
merely discloses unusual circumstances does not come within that category. [Citation.]
To warrant the rejection of the statements given by a witness who has
been believed by the [trier of fact], there must exist either a physical
impossibility that they are true, or their falsity must be apparent without
resorting to inferences or deductions.
[Citations.] Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal
of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.
[Citation.]â€. . . .’
[Citation.]†(
284, 303-304, 306.)
The uncorroborated testimony of a single witness is sufficient to
sustain a conviction unless it is physically impossible or inherently
improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Indeed, “ ‘[t]he testimony of a single
witness is sufficient to uphold a judgment even if it is contradicted by other
evidence, inconsistent or false as to other portions. [Citations.]’ †(In re
Robert V. (1982) 132 Cal.App.3d 815, 821.)
b. The
other relevant legal principles.
The elements of an
assault with a semiautomatic firearm are as follows: (1) The defendant did an act with a
semiautomatic firearm that by its nature would directly and probably
result in the application of force to a person; (2) the defendant did the
act willfully; (3) when the defendant acted, he was aware of facts that would
lead a reasonable person to realize that his act by its nature would directly
and probably result in the application of force to someone; and (4) when the
defendant acted, he had the present ability to apply force with a semiautomatic
weapon. (People v. Hartsch (2010) 49 Cal.4th 472, 507 (Hartsch); People v. Williams
(2001) 26 Cal.4th 779, 784-788 (Williams).)
An assault does not
require a specific intent to cause injury or a subjective awareness of the risk
that an injury might occur; it requires only an intentional act and actual
knowledge of those facts sufficient to establish that the act by its nature
will probably and directly result in the application of physical force against
another. (Williams, supra, 26 Cal.4th at p. 790.) Pointing a gun at someone in a menacing
manner is sufficient to establish the requisite mental state. (Hartsch,
supra, 49 Cal.4th at p. 507.)
“[W]hen a defendant
equips and positions himself to carry out a battery, he has the ‘present ability’
required [for an assault] if he is capable of inflicting injury on the given
occasion, even if some steps remain to be taken, and even if the victim or the
surrounding circumstances thwart the infliction of injury.†(People
v. Chance (2008) 44 Cal.4th 1164, 1172 (Chance).) The defendant must
have an actual, not merely apparent, ability to inflict injury. “Present ability†is negated only where the
circumstances of the injury turn out to be impossible for reasons unrelated to
the defendant’s preparations. (
A defendant has committed an assault where he has actually launched his
attack but failed because of some unforeseen circumstance which made success
impossible. (Id. at p. 1174.)
c. The analysis.
In People v. Ranson (1974) 40 Cal.App.3d 317 (Ranson), the defendant pointed a .22-caliber rifle at an
officer. The rifle held by the
and operable; however, the top cartridge that was to be fired was fed into the
chamber at an angle causing the rifle to jam.
There was trial evidence from which the trier of fact could infer
appellant knew how to take off and rapidly reinsert the clip. (Id. at
pp. 319-320.) On appeal, the defendant
argued the jammed condition of the rifle negated any present ability to inflict
injury.
The
sufficient, even though the defendant had to do much more than turn around to
use his weapon against the officer. He
had to remove the clip, dislodge the jammed cartridge, reinsert the clip,
chamber a round, point the weapon and pull the trigger. (Ranson,
supra, 40 Cal.App.3d at p. 321.)
Following
decided another similar case, Chance,
supra, 44 Cal.4th 1164. At page 1172
of Chance, the court cited
assault is satisfied when a defendant has attained the means and location to
strike immediately. In the context of “present
ability,†“immediately†does not mean instantaneously. It simply means the defendant must have the
ability to inflict injury on the present occasion. An assault occurs even if the defendant is
several steps away from inflicting injury, or if the victim is in a protected
position so that the injury would not be immediate in the strictest sense of
that term. (Chance, at p. 1171.)
In
occurred during an armed confrontation with a police officer. After the confrontation, the officers discovered
appellant’s gun had a fully loaded magazine.
There was no round in the firing chamber, but the defendant only had to
pull back a slide mechanism in order to chamber a round and fire. The gun’s safety was off. (Chance,
supra, 44 Cal.4th at p. 1169.)
In this instance,
appellant contends that the evidence is insufficient to support the jury
verdicts for assault with a semiautomatic firearm. He argues the evidence is insufficient to
support these verdicts as the record discloses appellant “need[ed] to perform
additional acts such as correctly reloading the weapon before he could actually
be in position to apply force to the victims,†and accordingly, he failed to
have the “present ability†to commit the assault. He urges the expert testimony amounted to
evidence there was only the remotest of possibilities the firearm could be
discharged with the backward feed.
We find no merit in
his contention. Appellant was only
slightly removed from being immediately able to fire his weapon. His firearm was fully functional. He attempted to shoot the victims by pointing
the handgun at them and pulling the handgun’s trigger. The handgun jammed and would not fire as the
slide could not close over an improperly-fed round in the chamber, which in
turn prevented the hammer from falling and the firing pin from striking the
butt of the round. This conduct was near
enough to completion to constitute the “present ability†needed for an
assault. According to the defense’s own
firearms expert, it would have taken appellant seconds to remove the jam from
the weapon and reload the firearm manually with an ejected bullet or one in his
pocket.
It is irrelevant to
our substantial evidence analysis that appellant did not do so as he was so
intoxicated it did not occur to him to quickly eject and rechamber the bullet
so he could discharge his handgun.
Appellant was sufficiently “along the continuum of conduct toward
battery†to hold him criminally liable for his conduct. (Chance,
supra, 44 Cal.4th at p. 1173.) All
he needed to do was push a button, releasing the magazine, and clear the
jam. The incorrectly-inserted round
would fall out, and appellant could manually reload a new round into his gun’s
chamber in a fully-seated position.
Also,
the defense expert could not be absolutely certain appellant’s manipulation of
the slide might not compress and then push the backwards-fed bullet into the
chamber, making it possible to discharge the live round from the chamber; i.e.,
there was no unequivocal evidence that discharging the round from appellant’s
firearm was impossible. (
103, 109-110 [distinguishing the assault in Valdez
from cases where it was established it would have been impossible to inflict
injury].)
Furthermore, a jury is not permitted
to consider appellant’s intoxication in determining whether he committed
felonious assault. (People v. Rocha (1971) 3 Cal.3d 893, 898; see Williams, supra, 26 Cal.4th at pp. 785-790 [voluntary intoxication
does not justify an assault as assault only requires an intentional act and
actual knowledge of those facts sufficient to establish that the act by its
nature will probably and directly result in the application of physical force
against another].)
2.
Appellant contends
that certain comments by the prosecutor during closing argument concerning
bludgeoning the victims presented an alternative theory of guilt that required
a sua sponte unanimity jury instruction, such as CALCRIM No. 3500.
During his closing
argument, the prosecutor argued, in pertinent part, as follows.
“And the only
question is when he’s pointing the gun at Nayemma and her mother, what is the
intent? . . . [¶] He did that on
purpose. He pointed the gun. He pulled it out for a reason. He was angry when he realized where he
was. His attitude significantly changed,
and he became angry at [Chavez], but really, particularly, his anger was
focused on Ms. Rivas, and so when he pulled out the gun and pointed it at her,
he did that on purpose. That wasn’t an
accident. [¶] And he knew and a reasonable person like you
or I would realize that that’s the sort of act that could result in force. He’s
five feet away. If he wanted to, he
could have taken the gun and swung it at them, and that would be an assault
because this gun can be used not just to fire, but to hit a person, but he
didn’t just have that ability. [¶] He
had the ability to do what he then proceeded to do which was move the slide
back to bring one round from the magazine into the chamber, and that moment
when he’s trying to take that step of pulling the trigger, there is an ability
to shoot. [¶] . . . [¶] He had the ability to do what he then
proceeded to do which was move the slide back to bring one round from the
magazine into the chamber, and that moment when he’s trying to take that step
of pulling the trigger, there is an ability to shoot.†(Italics added.)
This contention
also lacks merit.
“In a criminal
case, a defendant has the constitutional right to a unanimous jury verdict. (Cal. Const., art.
I, § 16; People v. Russo (2001) 25
Cal.4th 1124, 1132 (Russo).)
Furthermore, ‘the jury must agree unanimously the defendant is guilty of a
at p. 1132.) ‘Therefore, cases have long
held that when the evidence suggests more than one discrete crime, either the
prosecution must elect among the crimes or the court must require the jury to
agree on the same criminal act.
[Citations.] [¶] This requirement of unanimity as to the criminal
act “is intended to eliminate the danger that the defendant will be convicted
even though there is no single offense which all the jurors agree the
defendant committed.†’ (
(People v. Ortiz (2012)
208 Cal.App.4th 1354, 1374-1375.)
The complained of
comments were not an argument the one charge of assault per victim was
committed by two discrete criminal acts; i.e., appellant swung his gun at each
victim, then pointed the gun at the victim and attempted to shoot her. The prosecutor did not present the
bludgeoning comment as one of two alternate theories on how the criminal acts
of assault occurred on Nayemma and Rivas.
His bludgeoning comment was an aside mentioning appellant could also be
guilty of assault if he had tried to swing with the gun at the victims,
attempting to use the gun as a bludgeon.
But the prosecutor clarified before continuing with his argument
that no bludgeoning occurred here.
In any event, “unanimity
as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate
‘when conviction on a single count could be based on two or more discrete
criminal events,’ but not ‘where multiple theories or acts may form the basis
of a guilty verdict on one discrete criminal event.’ [Citation.]â€
(Russo, supra, 25 Cal.4th at p. 1135; Ortiz,
supra, 208 Cal.App.4th at p. 1375.) “It is settled that as long as each juror is
convinced beyond a reasonable doubt that defendant is guilty of [a crime] as
that offense is defined by statute, it need not decide unanimously by which
theory he is guilty.†(
903, 918.)
The trial court had
no sua sponte duty to instruct on unanimity.
Further, even if
this court found the prosecutor’s remarks to be ambiguous, no reversal is
required. The jury would not have been
confused by the prosecutor’s argument and disagreed as to the actual criminal
acts appellant had committed. There were
two charges here, and two criminal acts, one directed individually at each of
two victims. “The erroneous failure to
give a unanimity instruction is harmless [beyond a reasonable doubt] if
disagreement among the jurors concerning the different specific acts proved is
not reasonably possible.†(
108, 119 & fn. 8.)
3. Cunningham
a.
The right to a jury trial.
At sentencing on June 28, 2012, the trial court imposed upper terms of 10 years each for the two
firearm use enhancements.
Asserting the trial
court imposed the upper term based on facts not submitted to the jury,
appellant contends the trial court violated his constitutional right to have a
jury find every fact used to impose punishment.
(Apprendi v.
Effective January 1, 2010, section 1170.1, subdivision (d), was amended to remove the
presumption of the middle term for enhancements. (Stats. 2009, ch. 171, § 5.)
The statute now states in relevant part, “If an enhancement is punishable by
one of three terms, the court shall, in its discretion, impose the term that
best serves the interest of justice, and state the reasons for its sentence
choice on the record at the time of sentencing.†(§ 1170.1, subd. (d).)
The amendment to subdivision (d) of
section 1170.1 was a response to the decisions in Apprendi and Cunningham
and essentially eliminated the middle term as the statutory maximum absent
aggravating factors. This new
legislation makes the upper term the statutory maximum. Trial courts now have the discretion to
select among the lower, middle, and upper terms without stating ultimate facts
deemed to be aggravating or mitigating under the circumstances and without
weighing aggravating and mitigating circumstances. Thus, no jury trial was required on any factors
mentioned by the trial court in imposing the upper terms for the firearm use
enhancements.
In appellant’s
case, there is no problem with retroactivity.
In People v.
845-857, the Supreme Court held it is constitutionally appropriate to apply the
amended version of the determinate sentencing law in all sentencing proceedings
conducted after the effective date of the amendments, regardless of whether the
offense was committed prior to the effective date of the amendments. In any event, appellant committed his
offenses on June
26, 2011, well after the January 1, 2010, effective date of the amendment.
(Id. at p. 857;
178 Cal.App.4th 853, 866-867.)
Accordingly, Apprendi and
sentencing under the determinate sentencing law.
b.
Ineffective trial counsel.
Appellant makes a
claim of ineffective trial counsel in the event this court finds he forfeited
the above sentencing contention as his trial counsel failed to demand a jury
trial on factors in aggravation of the upper term. However, the Attorney General makes no claim
of a forfeiture. Furthermore, as
appellant was not entitled to a jury trial on aggravating factors, trial
counsel’s failure to object on Apprendi
and Cunningham grounds does not
amount to a deficient performance. (
688, 687-692; People v. Benavides
(2005) 35 Cal.4th 69, 92-93 [“To prevail on a claim of ineffective assistance
of counsel, a defendant must show both that counsel’s performance was deficient
and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance [is] deficient if the
representation fell below an objective standard of reasonableness under prevailing
professional norms. [Citation.]â€.)
DISPOSITION
OFFICIAL REPORTS
KLEIN,
P. J.
We concur:
KITCHING, J.
ALDRICH,
J.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2] The jury
acquitted appellant of two counts of attempted second degree murder
(§§ 664, 187, subd. (a)) and of one count of assault with a semiautomatic
firearm. (§ 245, subd. (b).)
