P. v. Vargas
Filed 7/18/13 P. v. Vargas CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
MIGUEL ANGEL VARGAS,
Defendant and Appellant.
B239488
(Los Angeles
County
Super. Ct.
No. NA087206)
APPEAL from
a judgment of the Superior Court
of
County. James B.
Pierce, Judge. Affirmed in part,
reversed in part and remanded.
Murray A. Rosenberg, 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, Shawn McGahey Webb and David Zarmi, Deputy Attorneys General,
for Plaintiff and Respondent.
* * * * * *
Miguel
Angel Vargas appeals from the judgment entered following a jury trial that
resulted in his convictions for assault on
a peace officer with a semiautomatic firearm (Pen. Code, § 245, subd.
(d)(2); count 1),
name="_ftnref1" title="">[1] during which offense he personally used a
firearm (§§ 12022.53, subd. (b), 12022.5, subds. (a) & (d)) and discharged
a firearm (§ 12022.53, subd. (c)), and possession of a firearm by a felon
(former § 12021, subd. (a)(1); count 3)
prior serious felony conviction (§ 667, subd. (a)(1)), which qualified as a
strike under the “Three Strikes†law (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d); counts 1 & 3).
name="_ftnref3" title="">[3]
He was sentenced to prison on count 1 to
39 years, consisting of 14 years, or double the seven-year middle term for his
strike, plus 20 years for the firearm enhancements and five years for the prior
serious felony enhancement. The trial
court imposed the two-year middle term as to count 3 but ordered this sentence
to be served concurrently with the sentence on count 1 pursuant to section 654.
Appellant contends the evidence is
insufficient to support his conviction on count 1 for assault on Long
Beach Police Officer Dedier Reyes with a semiautomatic firearm and the findings
that he personally and intentionally discharged a firearm. He requested this court perform an
independent review of the Pitchess
all discoverable information had been disclosed.
We invited the parties to address these
issues: (1) Did the trial court commit
unauthorized sentencing error by failing to impose the mandated sentence under
the Three Strikes law; (2) If so, should the sentence on count 3 be reversed
and the matter remanded for resentencing on that count; (3) Is the multiple
punishment bar of section 654 inapplicable to a sentence under the Three
Strikes law; (4) Is a consecutive sentence mandated if that court determines
the counts 1 and 3 offenses were “not committed on the same occasion, and [did]
not arise[] from the same set of operative facts†(§ 667, subd. (c)(6));
and (5) If not, may the trial court exercise its discretion to impose a
consecutive or concurrent sentence on count 3?
We have received their responses.
We conclude the trial court erred in
sentencing appellant on count 3. The
court erred in imposing a concurrent sentence under section 654 and in failing
to double the two-year middle term for appellant’s strike to four years. We remand the matter to that court with
directions to determine whether a consecutive sentence on count 3 of
16 months, or one-third the middle term as doubled for his strike, is
mandated under the Three Strikes law and, if not, to exercise its discretion to
impose a consecutive or concurrent sentence.
In all other respects, we affirm the judgment.
BACKGROUND
On October 16, 2010, appellant
attended a birthday party on Cerritos Avenue
in Long Beach. Appellant’s brother, Gerardo, saw a black
object bulging from appellant’s pocket, which led him to believe appellant had
a gun. A “couple days before the party,â€
appellant had shown Gerardo his black semiautomatic handgun.
About 7:30 p.m., Long Beach
police responded to a report of someone with a gun at a party in that
vicinity. Sergeant Timothy Long and
Detectives Jeffrey Conrad and Richard Armond, who wore jackets marked “police,â€
parked their vehicle by an alley close to that location. As they were proceeding on foot down the
alley three individuals approached from the other end. One of the individuals adjusted the clothing
around his waistband, which indicated to Detective Armond that the individual
may have a weapon in his waistband. Upon
seeing the officers, the individual made a U-turn and began to run. Detective Armond gave chase but lost
him. He then heard about five or six shots. Sergeant Long also heard about five to six
shots.
After uniformed Long Beach Police
Officers Dedier Reyes and Rudy Garcia approached on foot to the intersection of
Hellman Street
and Cerritos,
they received a dispatch call that the armed person had left the party and he
was running towards them. Looking north
on Cerritos,
Officer Reyes noticed appellant, who matched the suspect’s physical
description. Appellant had his right
hand in his waistband as he ran toward the officers.
After looking in the officers’
direction, appellant ran southwest diagonally across Hellman. Officer Reyes yelled for him to stop and gave
chase. Officer Garcia followed. Appellant looked back at Officer Reyes but
continued running until he turned south into an alley. At the alley entrance, Officer Reyes saw a
black gun in appellant’s right hand.
Officer Reyes became fearful when appellant began to turn right, with
gun in hand, towards him.
After yelling a gun warning to Officer
Garcia, Officer Reyes fired once, paused, and fired again at appellant, who
still held his gun. During the shooting,
Officer Reyes did not hear or see appellant fire his own gun at the same
time. Officer Reyes believed he was
unable to differentiate the rounds fired, because his own rounds were “very
loud†and prevented him from doing so.
Appellant, who no longer held his gun, fell to the ground.
After falling, appellant rolled. Turning back toward the officers, appellant
reached at his waistband and grabbed a black object. Officer Garcia yelled at him to turn onto his
stomach. When appellant raised his hand
holding the object, Officer Garcia fired two shots at him. Appellant threw the object further into the
alley. Officer Garcia believed it was a
gun but in fact it was a black cell phone.
After handcuffing appellant, the
officers discovered a nine-millimeter casing under appellant. Neither officer had a nine-millimeter
handgun.
Appellant’s black, semiautomatic
nine-millimeter gun was found in the yard of a house adjacent to the “pretty
narrow†alley. Officer Reyes did not see
appellant toss the gun but he had turned away after firing the two shots at
appellant. Six spent casings, of which
four were .40-caliber and two were nine-millimeter, were recovered. The “‘RP’†stamped nine-millimeter casing was
recovered on a sidewalk near the alley while the “‘FC’†stamped casing was
found in the grass next to the alley.
The six casings were matched to three guns, each of which had been fired
twice. The four .40 casings were from
the rounds fired by the officers’ guns.
The two nine-millimeter casings were from appellant’s gun. Appellant’s gun had a chambered round and the
magazine contained one Federal cartridge and four Remington Peters
cartridges. To fire the gun, appellant
had to deactivate two safety mechanisms and exert six pounds of force.
The prosecution’s firearm expert
testified that in his experience, if he were the one being shot at and if he
were firing back, he might not hear any other shots because of his focus on
firing his gun and the echo from his own shots.
He opined a person could save his spent cartridges and have them
refilled but people who did this usually were hunters experimenting with
specific types of gunpowder. He pointed
out that cartridges cost only $10 for 25 and less for those with reused casings
in contrast to the cost of refilling casings which required machinery costing
hundreds of dollars in addition to the cost of gunpowder and bullets.
Detectives Gregory Krabbe and Mark
McGuire, his partner, who investigated the shooting, concluded Officers Reyes
and Garcia had been shot at.
Appellant presented evidence to show
there were no signs of impact where appellant’s gun had landed and that there
was an absence of burn marks which would have suggested appellant had fired a
gun close to his clothing.
I. Substantial
Evidence Supports Count 1 Conviction
Appellant contends his count 1
conviction for assault with a semiautomatic firearm on Officer Reyes (§
245, subd. (d)(2)) is not supported by the evidence, because “there was
insufficient evidence that appellant did an act with a semiautomatic firearm
that by its nature would directly and probably result in the application of
force to a person.â€
“The law applicable to a
claim of insufficiency of the evidence is well settled: ‘“In reviewing [a claim regarding] the
sufficiency of the evidence, we must determine ‘whether, after reviewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’
[Citation.] ‘[T]he court must
review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ [Citation.]
We ‘“presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence.â€â€™ [Citation.] If we determine that a rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable
doubt, the due process clause of the
States Constitution is satisfied [citation], as is the due process clause
of article I, section 15, of the California Constitution [citation].’ [Citations.]†(People v. Carter
(2005) 36 Cal.4th 1114, 1156.) This standard applies to both direct and circumstantial
evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.)
Appellant suggests it is simply
suspicion that he assaulted Officer Reyes with his nine-millimeter gun, because
Officer Reyes merely saw the gun in appellant’s hand and did not see or hear
him fire the gun. He contends Officer
Reyes’s lack of perception cannot be saved by “[t]he fact that two expended
[nine-millimeter] casings were later found, one beneath appellant and another
some distance away in the yard of a house on the other side of the alley not
far from the gun†inasmuch as “[t]here are numerous other plausible explanations for the expended rounds and the location of
the gun†(italics added). Appellant
contends that while he was “running with the gun in hand when he was shot [he]
pair of rounds on being hit or as he attempted to throw the gun away†(italics
added).
We are not persuaded. Appellant’s position is grounded in
speculation, which is not evidence (People
v. Mendoza (2000) 24 Cal.4th 130, 174; People
v. Kraft (2000) 23 Cal.4th 978, 1035 [speculation and speculative
inferences not evidence]), and appellant invites this court to give credence to
such speculation over the evidence believed by the trier of fact.
Initially, the record reflects that
in order to fire the gun, appellant had to have deactivated two safety
mechanisms and exerted six pounds of force.
The evidence therefore refutes his supposition that his gun accidently
fired.
The jury was entitled to find
appellant in fact had fired two shots at Officer Reyes based on the
circumstantial evidence of the locations of the two nine-millimeter casings and
appellant’s nine-millimeter gun, all of which were recovered in the general
vicinity of the shooting, and the fact that Sergeant Long and Detective Armond
had heard five to six shots, only four of which were attributable to the guns
shot by Officers Garcia and Reyes. The
jury also was entitled to infer that Officer Reyes did not see or hear
appellant’s gun fire two shots, because his focus was on shooting
appellant. Also, the echo from his own
shots distracted him from hearing the shots fired by appellant. The fact that Officer Reyes did not perceive
the gunshots fired by appellant does not dispel the inference that appellant
had fired two shots at Officer Reyes.
II. Substantial Evidence Supports Discharge
of Firearm Finding
Appellant contends the evidence is
insufficient to support the jury finding that he personally and intentionally
discharged a firearm (§ 12022.53, subd. (c)).
Essentially, appellant renews his claims above as to why the evidence
fails to support his conviction for assault with a semiautomatic firearm on a
peace officer (count 1). He contends
neither Officers Reyes nor Garcia saw or heard appellant fire his gun; the gun
could have accidentally discharged as appellant ran “with the gun in hand when
he was shot [and] most likely involuntarily fired off a pair of rounds on [his]
being hit or as he attempted to throw the gun awayâ€; and “[t]here are numerous
other plausible explanations for the expended rounds and the location of the
gun.â€
We reject appellant’s contentions as
based on improper speculation.
Additionally, substantial evidence, as recounted above, supports the
finding that appellant both personally and intentionally discharged his
nine-millimeter gun at Officer Reyes.
III. No
Appellant contends, and the People
concede, he is entitled to review by this court of the police personnel records
to determine whether the trial court abused its discretion by failing to turn
over to the defense all discoverable materials in those records. No abuse occurred.
On April 8, 2011, the trial court
conducted an in-camera hearing on appellant’s Pitchess motion for discovery of any materials in the personnel
records of Officer Reyes pertaining to complaints of excessive force.
ordered discovery as to six, because they pertained to “either excessive force
or . . . directly to falsifying official police records†and denied
discovery as to the remaining 10 reports.
“Trial
courts are granted wide discretion when ruling on motions to discover police
officer personnel records.
[Citation.]†(
827.) “To
obtain relief, . . . a defendant
has established that the trial court erred in denying Pitchess
discovery must also demonstrate a reasonable probability of a different outcome
had the evidence been disclosed.
[Citations.]†(
182–183.)
We have
reviewed the sealed in-camera Pitchess
hearing transcript.
name="_ftnref6" title="">[6] Although the personnel records are not before
us, the trial court set forth sufficiently a summary of the 10 records for
which discovery was not ordered to enable this court to determine these records
are irrelevant to issues of excessive police force and falsifying official
police records. The trial court
therefore did not abuse its discretion in denying discovery.
IV. Reversal of Count 3 Sentence and Remand
Warranted
The
jury found appellant guilty as charged in count 3 of possession of a firearm by
a felon (former § 12021, subd. (a)(1)).
Appellant admitted, and the trial court found true, the allegation that
he had suffered a strike under the Three Strikes law as to count 3. The court declined to exercise its discretion
to dismiss the strike pursuant to People
v. Superior Court (Romero) (1996)
13 Cal.4th 497.
In sentencing appellant on count 3, the
trial court selected the two-year middle term and ordered that term to be
served concurrently with the sentence imposed on count 1 pursuant to
section 654, because “it’s one and the same act of both possession and using it
in the assault on the peace officer in count one.â€
Both appellant and the People agree the
trial court committed unauthorized sentencing error by failing to double
appellant’s two-year term to four years for the strike prior. We concur.
The parties disagree regarding the
applicability of the multiple punishment bar of section 654. Appellant’ position is the multiple
punishment bar for a single act under section 654 is applicable, because the
trial court found counts 1 and 3 were based on the same assaultive conduct and
consecutive sentencing under the Three Strikes law is mandated only where the
underlying offenses were “not committed on the same occasion, and not arising
from the same set of operative facts†(§ 667, subd. (c)(6)).
The People contend section 654 is
inapplicable under the circumstances here, because “where possession of a gun
is ‘“antecedent [to] and separate†from’ its use in assaulting a peace officer,
section 654 does not apply†and point out the gist of Gerardo’s testimony was
that appellant already carried the gun at the party before he assaulted Officer
Reyes.
Appellant and the People each concede on
remand, if the trial court were to determine that the offenses in counts 1 and
3 were committed on the same occasion or arose from the same set of operative
facts, then a consecutive sentence on count 3 is not mandated under the Three
Strikes law. (Cf. § 667, subd.
(c)(6).) They also acknowledge that if
this were the case, the trial court retains discretion to impose a consecutive
or concurrent sentence on count 3.
Appellant contends the court then may “employ section 654 under that
section’s own standard.â€
Initially, we conclude the trial court
erred in imposing a concurrent sentence pursuant to section 654. The appropriate procedure for applying the
multiple punishment bar of section 654 is to stay imposition of the sentence, not
to impose a concurrent sentence. (
38–40.)
We further conclude the court erred in
failing to determine whether a consecutive sentence on count 3 is mandatory
under the Three Strikes law, and, if not, to exercise its discretion to impose
a consecutive or concurrent sentence on that count. Under the Three Strikes law, a consecutive
sentence is mandatory if the felony offenses were “not committed on the same
occasion, and not arising from the same set of operative facts†(§ 667,
subd. (c)(6)). In contrast, “where
a sentencing court determines that two or more current felony convictions were
either ‘committed on the same occasion’ or ‘aris[e] from the same set of operative
facts’ . . . consecutive sentencing is not required under the
Three Strikes law, but is permissible in the trial court’s sound
discretion.†(People v. Lawrence (2000)
24 Cal.4th 219, 233; see generally, §§ 669, subd. (a), 1170.1, subd. (a).)
It is
incumbent on the trial court to decide whether the underlying felonies in
counts 1 and 3 were sufficiently separated in time and space such that they
were not committed “‘on the same occasion.’â€
We note appellant, a felon, possessed the gun about two hours before the
assault on Officer Reyes, and such possession was at a location different from
the location of the assault.
Additionally, the court must decide whether these felonies arose from
“‘the same set of operative facts,’†which determination involves an inquiry
into whether or not the felonies share “common acts or criminal conduct that
serves to establish the elements of the current felony offenses†and a weighing
of “the extent to which common acts and elements of such offenses unfold
together or overlap, and the extent to which the elements of one offense have
been satisfied, rendering that offense completed in the eyes of the law before
the commission of further criminal acts constituting additional and separately
chargeable crimes.†(
219, 229, 233; cf. People v. DeLoza
(1998) 18 Cal.4th 585, 599; People v.
Garcia (2008) 167 Cal.App.4th 1550, 1566–1567.) In this regard, we observe the offense of
possession of a firearm by a felon had been completed before appellant
assaulted Officer Reyes. The assault
offense was additional to the possession offense, and both offenses were
separately chargeable. The commission of
these offenses did not “unfold†nor did they “overlap,†because appellant’s
possession of the gun at the party was wholly unconnected in time, space, and
intent with his possession of the gun in assaulting Officer Reyes.
The parties do not address the matter of
how the consecutive sentence, if mandatory, is to be calculated. In making this calculation, we are guided by
Cal.4th 197, in which our Supreme Court concluded, in the context of a second
striker, that the provision of section 1170.1, subdivision (a), which fixes the
consecutive subordinate terms at one-third the middle term, applies to a
mandatory consecutive sentence under the Three Strikes law. Noting under the Three Strikes law, “[t]here
shall not be an aggregate term limitation for purposes of consecutive
sentencing for any subsequent felony conviction†(§§ 667, subd. (c)(1),
1170.12, subd. (a)(1)), the Court explained this provision of section 1170.1
simply “defines the length of
individual subordinate terms†and thus, is not an aggregate term
consecutive sentence on count 3, if mandated, shall be 16 months, or
one-third of four years, which is double the two-year middle term for his
strike.
Lastly, we conclude section 654 is
inapplicable to appellant’s sentences under the Three Strikes law. Section 654 proscribes multiple punishment
for an indivisible course of conduct which is incident to a single intent and
objective (Neal v. State of California
(1960) 55 Cal.2d 11, 19). The trial
court erroneously concluded such a situation existed here because the same
conduct underlies appellant’s conviction for possession of a firearm by a felon
and his conviction for assault with a semiautomatic firearm on Officer
Reyes. The record establishes that prior
to assaulting Officer Reyes, appellant already was in possession of the gun and
he did not possess the gun simply for the purpose of assaulting Officer
Reyes. Section 654 therefore does not
bar separate punishment for these offenses.
(See, e.g., People v. Bradford
(1976) 17 Cal.3d 8, 22; People v. Mesa
(2012) 54 Cal.4th 191, 193–195; People v.
Jones (2002) 103 Cal.App.4th 1139, 1142–1149.)
DISPOSITION
The sentence on count 3 is reversed and
the matter is remanded to the trial court with directions to resentence
appellant on count 3 consistent with the views expressed in this opinion. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
FERNS
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
CHAVEZ
name="_ftn1" title="">[1] All
further section references are to the Penal Code.
was repealed, and the offense of possession of a firearm by a felon is set
forth in section 29800, subdivision (a)(1).
(Stats. 2010, ch. 711 (Sen. Bill No. 1080), § 6, operative Jan. 1,
2012.)
