P. v. Rodriguez

Filed 10/30/07 P. v. Rodriguez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Matias R. Contreras, Judge. Affirmed in part and reversed in part.

Frank Marquez Rodriguez was convicted by a jury of discharging a firearm with gross negligence involving the personal infliction of great bodily injury on his girlfriend (Pen. Code,^[1] 246.3, 12022.7), and being a felon in possession of a firearm ( 12021, subd. (a)(1)). The trial court found true two prison prior convictions ( 667.5, subd. (b)). Rodriguez was sentenced to total term of eight years, which included an upper term of three years for discharging the firearm.

Rodriguez contends reversal is required because the trial court failed to instruct the jury his girlfriend was an accomplice, the court failed to orally instruct on the great bodily injury enhancement, there was insufficient evidence to support his conviction of discharging a firearm or the personal infliction of great bodily injury, and imposition of the upper term was improperly based on facts not found true by a jury or admitted by him. We affirm in part and reverse in part.

FACTS

At the time of the shooting, Rodriguez and Delilah San Roman had a romantic relationship and lived in a trailer park at the home of Rodriguez's mother and sisters.

On December 22, 2005, at about 3:00 a.m., as they were returning from a friend's house, San Roman said she wanted to go to her mother's house but Rodriguez insisted she come home with him. As they argued, San Roman fell in an alley. Rodriguez pulled her up by her hair, dragged her down the alley and started hitting and punching her. To avoid a further beating, San Roman agreed to go to his trailer. She had bruises on both her arms and a cut lip. In the past, Rodriguez had struck her at least 10 times and pulled her hair.

After eating breakfast on December 22, they both started drinking and continued drinking throughout the entire day. They also used methamphetamine. At some point during the evening, Rodriguez brought a rifle out of the trailer, shot at cans near a carport and then at a bird in a tree in the front yard.

Not long before midnight, Rodriguez and San Roman were sitting in lawn chairs in the front yard. Rodriguez had the rifle across his lap with the muzzle pointing toward San Roman's right leg. At one point, he grabbed the rifle to move it and it discharged. A bullet went through both of San Roman's thighs. Rodriguez said something to the effect that it was an accident or that he was sorry and then fled.

San Roman called for help, and Rodriguez's sisters responded. San Roman told one of them, "Call the police, I think Frank shot me." When the police interviewed her the next day, San Roman said the rifle went off when Rodriguez was grabbing the rifle to move it.

The police found a single expended bullet casing in the front yard. A few days later, after having received a tip, the police went to Rodriguez's family house and found him hiding underneath the house in a crawl space.

San Roman 's wounds were potentially life-threatening, but fortuitously, the bullet missed major arteries, nerves, and bones. Nonetheless, all penetrating gunshot wounds present a risk of infection and delayed complications. The hospital provided "local wound care" and did not suture the gunshot wounds because of the high risk of infection. Generally, following an injury like San Roman's, there is a period of restricted movement while the wounds heal. San Roman was observed in the hospital having difficulty walking because of the pain. Her wounds were neither insignificant nor trivial; on a scale of zero to 10 of serious gunshot wounds, the treating physician estimated San Roman's injuries rated a three or four.

At trial, San Roman testified that as they were sitting in the front yard, Rodriguez had the rifle in his lap, holding it with one hand that was not on the trigger. Contrary to her earlier statement to the officer, she grabbed the rifle with two hands to move it out of the way and the gun discharged. She denied that Rodriguez had ever punched, slapped or kicked her; he had only pushed her and once pulled her hair. She denied Rodriguez had been angry with her at any time that day, testifying that he helped her up when she had fallen in the mud and that she had initiated a fight with him that had resulted in a bruised lip.

An expert on domestic violence testified that victims of domestic violence not uncommonly minimize or deny incidents of violence and are reluctant to testify against their abusers.

DISCUSSION

I

Accomplice Instructions

Rodriguez contends his convictions must be reversed because San Roman was an accomplice and the court failed to instruct the jury on how to view accomplice testimony.

An accomplice is an individual "who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." ( 1111.) A witness is liable to prosecution for the same offense if he or she is a principal in the crime. (People v. Lewis (2001) 26 Cal.4th 334, 368-369.) A person is a principal in a crime if she or he directly commits the crime or if he or she aids and abets another person in the commission of a crime. ( 30.) "If there is evidence to permit a jury to find by a preponderance of the evidence the witness was an accomplice, ' "the trial court must instruct the jury that the witness's testimony should be viewed with distrust." ' " (People v. Hinton (2006) 37 Cal.4th 839, 879). "[A]n accomplice has a natural incentive to minimize his own guilt before the jury and to enlarge that of his cohorts; accordingly, the law requires an accomplice's testimony be viewed with caution to the extent it incriminates others." (People v. Brown (2003) 31 Cal.4th 518, 555.)

"A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is 'sufficient corroborating evidence in the record.' [Citation.] To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that "tends to connect the defendant with the crime charged" without aid or assistance from the accomplice's testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ' "[T]he corroborative evidence may be slight and entitled to little consideration when standing alone." [Citation.]' " (People v. Avila (2006) 38 Cal.4th 491, 562-563.)

Felon in Possession of Firearm

Rodriguez contends San Roman was an accomplice as a matter of law in the felon in possession of a firearm offense because she was a felon and her testimony indicates she grabbed the rifle and therefore had possession.

While it is true San Roman possibly could be liable for prosecution as a felon in possession of a firearm, it does not necessarily follow that she was an accomplice in the charged offense. The charged offense was that Rodriguez, rather than San Roman, was a felon and that Rodriguez, rather San Roman, possessed the rifle. San Roman's individual possession of the rifle based on her separate criminal history as a felon was not identical to Rodriguez's individual possession of the rifle based on his criminal history they were two distinct offenses. In other words, San Roman, even if she had possessed the rifle, was not an accomplice in the charged offense of Rodriguez being a felon in possession of a firearm.^[2]

Negligent Discharge of Firearm

Rodriguez contends there was evidence San Roman was an accomplice in the negligent discharge of the firearm because she grabbed the gun at the time it discharged.

To convict an individual of violating section 246.3, the People must prove: "(1) the defendant unlawfully discharged a firearm; (2) the defendant did so intentionally; [and] (3) the defendant did so in a grossly negligent manner which could result in the injury or death of a person." (People v. Alonzo (1993) 13 Cal.App.4th 535, 538; 246.3.)

Here, while there was some evidence San Roman had her hands on the rifle when it discharged, there was no evidence that she intentionally discharged the firearm or intended to aid and abet Rodriguez in the intentional discharge of the firearm. Therefore, she was not an accomplice.

Rodriguez also argues San Roman was an accomplice to the infliction of great bodily injury. Since we have concluded she was not an accomplice to the negligent discharge of a firearm, it necessarily follows that she was not an accomplice to the resulting infliction of great bodily injury.

II

Sufficiency of Evidence to Discharge of Firearm Conviction

Rodriguez contends the evidence is insufficient to support his conviction of discharging the firearm because there was no substantial evidence to support a finding he intentionally fired the rifle.^[3] The Attorney General argues the evidence was sufficient to support a conviction of discharging a firearm, because: "[a]lthough San Roman asserted that neither her hands nor [Rodriguez's] hands were on the trigger of the rifle, she did not explain how the rifle could have discharged on its own" and the muzzle of the rifle was pointed at San Roman. "Therefore," the Attorney General concludes, "all indications in the record are that the trigger was in [Rodriguez's] hands." "Indeed, [Rodriguez] yanked at the rifle and fired it, and San Roman suffered gunshot wounds in both her thighs." The Attorney General also points to the evidence Rodriguez fled immediately after the shooting and San Roman told the police Rodriguez had shot her.

When an appellant challenges the sufficiency of the evidence to support a conviction, "we review the entire record in the light most favorable to the judgment to determine whether it discloses 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." (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Jennings (1991) 53 Cal.3d 334, 364.) We " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Davis (1995) 10 Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We draw all reasonable inferences in support of the judgment. (People v. Pensinger (1991) 52 Cal.3d 1210, 1237; People v. McCleod (1997) 55 Cal.App.4th 1205, 1220-1221.)

"Section 246.3 was enacted primarily to deter the dangerous practice that exists in some communities of discharging firearms into the air in celebration of festive occasions." (People v. Robertson (2004) 34 Cal.4th 156, 167.) To prove that an individual violated section 246.3, it is necessary to prove the defendant "willfully discharge[d] a firearm . . . ." ( 246.3, subd. (a), italics added.) "The terms 'willful' or 'willfully,' as used in penal statutes, imply 'simply a purpose or willingness to commit the act . . . ,' without regard to motive, intent to injure, or knowledge of the act's prohibited character. ( 7, subd. 1.) The terms imply that the person knows what he is doing, intends to do what he is doing, and is a free agent." (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438.) The plain language of section 246.3 "requires proof that a defendant purposefully, willingly, or intentionally fired the weapon, with the added requirement that the firing occurred in a grossly negligent manner which could result in injury or death." (In re Jerry R., at p. 1440; People v. Robertson, supra, 34 Cal.4th 156, 167.) The Legislature did not prohibit "simply the grossly negligent discharge of a firearm, with no willfulness requirement." (In re Jerry R., at p. 1439.)

Here, the undisputed evidence showed the rifle discharged while Rodriguez was holding the rifle. An inference may be drawn that his hand was on the trigger when it discharged and that the discharge was not the result of a malfunction or defect in the rifle. However, there was no evidence showing Rodriguez intended to fire the rifle when it discharged. He was not shooting at cans or birds or anything else when the rifle discharged and San Roman was shot. Rather, the evidence was either that Rodriguez was moving the rifle or San Roman was grabbing the rifle at the time it discharged. This evidence, combined with the drunken state of both Rodriguez and San Roman and the injury to San Roman while clearly sufficient to support a conclusion Rodriguez was grossly negligent in his handling of the rifle, was not sufficient to show a grossly negligent discharge of a firearm as defined by section 246.3.

Section 246.3 does not punish every accidental shooting involving serious injury or death. Section 246.3 punishes only situations where the defendant intended to fire a loaded firearm but accidentally injured or killed someone; it does not punish situations where both the discharge of the firearm and the injury or death were accidental. In this case the evidence showed only an accidental, rather than willful or intentional, discharge of the rifle.

We agree the evidence is insufficient and therefore Rodriguez's conviction for discharging a firearm with gross negligence causing great bodily injury or death and the enhancement for the personal infliction of great bodily injury must be reversed. Additionally, the two prior prison enhancements, which the court appended to the discharging a firearm offense, must be stricken.^[4]

Since we reverse this conviction and the enhancement, it is not necessary to discuss Rodriguez's claims about instructional error as to the enhancement.

III

Imposition of an Upper Term Sentence

The court imposed the upper term of three years for discharging a firearm in a grossly negligent manner, three years for the infliction of great bodily injury, one year for each of the prison priors. The court imposed a concurrent upper term of three years for being a felon in possession of a firearm and concurrent one-year terms for two prison priors.

In deciding to impose the upper term, the court stated: "He has a lengthy record of criminal convictions, he appears to be getting more involved in criminal activities, he was on parole when these incidents occurred, and he fled from the authorities . . . ."

At the time Rodriguez was sentenced, California's Determinative Sentencing Law (DSL), specified three terms of imprisonment for most offenses and specified that "the

court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." (Former  1170, subd. (b).)^[5] The aggravating or mitigating circumstances were determined by a judge using a preponderance of the evidence standard. (Former  1170, subd. (b); Cal. Rules of Court, rule 4.420(b).)

In Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court, in reviewing the State of Washington's determinate sentencing scheme, held a sentence could not be imposed by a court beyond "the statutory maximum" based on facts neither admitted by the defendant nor found true by a jury using a reasonable doubt standard except for the fact of a prior conviction. (Id. at pp. 301, 303; see also Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 864, 868 (Cunningham).) Our California Supreme Court held California's DSL comported with Blakely, in part, on the basis that the DSL's upper term represented the "maximum term" that could be imposed. (People v. Black (2005) 35 Cal.4th 1238, 1253 (Black I).) The United States Supreme Court disagreed. In Cunningham v. California, supra, 549 U.S. ___, 127 S.Ct. 856, the Supreme Court held the "statutory maximum" in California's DSL was the middle term, the DSL violated the Sixth and Fourteenth Amendments and aggravating factors used by a judge to impose an upper must have been found true by the jury using a reasonable doubt standard, admitted by the defendant or involve the fact of a prior

conviction. (Cunningham, supra, 549 U.S. at p. ___, 127 S.Ct. 856, 868.)

After the Cunningham decision, the California Supreme Court issued People v. Black (2007) 41 Cal.4th 799 (Black II).^[6] In Black II, the California Supreme Court held that "so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Black II, supra, 41 Cal.4th at p. 813.) Thus, under Black II, the existence of a single aggravating factor is sufficient to make the defendant eligible for the upper term: "if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum.' " (Ibid.)

Here, among the factors relied on by the trial court was Rodriguez's lengthy criminal history. As Rodriguez concedes, under Black II, this was a constitutionally valid factor upon which the court could rely and made him eligible for an upper term. In Black II, the Court specifically found the fact prior convictions were " 'numerous or of increasing seriousness' " fell within the fact of a prior conviction exception and

authorized an upper term sentence. (Black II, supra, 41 Cal.4th at pp. 819-820.)

Rodriguez argues that Black II is wrongly decided, contending the "fact of a prior conviction" exception to a jury finding or a defendant's admission should be narrowly construed, and that the federal Constitution requires even the fact of a prior conviction to be found by the jury or admitted by the defendant. However, he also acknowledges that we are bound by Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He makes these additional arguments to preserve his claims.

We conclude, under the authority of Black II, there was no Blakely/Cunningham violation in this case and the upper term was properly imposed.

DISPOSITION

The conviction for violating section 246.3 and the section 12022.7 enhancement are reversed. The two section 667.5, subdivision (b) enhancements attached to the section 246.3 offense are ordered stricken. The superior court is instructed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

AARON, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] The Attorney General argues that San Roman was not an accomplice because she had only momentary possession and therefore did not engage in any criminal conduct. (See, e.g., People v. Martin (2001) 25 Cal.4th 1180, 1190-1191.) We need not address this issue since even if San Roman's possession was more than momentary, she would not be liable under the circumstances of this case for Rodriguez's felon status and his possession of the firearm.

^[3] Rodriguez also contends the evidence is insufficient "because of the inherently untrustworthy nature of San Roman's accomplice evidence." This argument is premised on San Roman being an accomplice, a contention we rejected in part I.

^[4] The court erred in imposing Rodriguez's two one-year prison prior enhancements both on his conviction for discharging a firearm as well as on his conviction for being a felon in possession of a firearm, as if these enhancements were attached to the individual counts. Prior prison term enhancements have nothing to do with particular counts but, are connected to the offender and are added only once as a step in arriving at the aggregate sentence. (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401; People v. Smith (1992) 10 Cal.App.4th 178, 182-183; People v. Augborne (2002) 104 Cal.App.4th 362, 377.)

^[5] The California Legislature amended California's sentencing law by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3,  2.) Unless otherwise specified, our references to section 1170 are to the statute as it read prior to those amendments.

^[6] We requested and have considered supplemental briefs on the impact, if any, of Black II on the court's sentencing decision.