P. v. Hernandez

Filed 1/29/07 P. v. Hernandez CA6

Received for posting 3/13/07

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Jose Antonio Hernandez was convicted after jury trial of attempted murder (Pen. Code, 664, 187, subd. (a); count 1),[1]attempted murder of a peace officer ( 217.1, subd. (b); count 2), assault with a firearm on a peace officer ( 245, subd. (d)(1); count 3), exhibiting a firearm at a peace officer ( 417.8; count 4), and possession of a firearm by a felon ( 12021, subd. (a)(1); count 5). The jury also found true allegations that defendant personally used a firearm during the commission of counts 1 through 3 ( 12022.53, subd. (b)). The jury found defendant not guilty of a second count of possession of a firearm by a felon (count 9), two counts of actively participating in a criminal street gang ( 186.22, subd. (a); counts 6 & 10), and two counts of second degree robbery ( 211; counts 7 & 8). In a bifurcated proceeding, defendant admitted having suffered a prior strike ( 1170.12) and having served three prior prison terms

( 667.5, subd. (b)). The trial court sentenced defendant to the indeterminate term of 30 years to life, consecutive to the determinate term of 13 years.

On appeal defendant contends that the evidence is insufficient to support the attempted murder verdicts in counts 1 and 2. Defendant separately contends, and the Attorney General concedes, that the attempted murder conviction in count 1 must be reversed because it is a lesser included offense of the attempted murder of a peace officer conviction in count 2. We agree with the Attorney Generals concession, and find sufficient evidence to support the jury verdict of attempted murder of a peace officer. Therefore, we will modify the judgment by vacating the attempted murder conviction on count 1 and affirm the judgment as so modified.

BACKGROUND

Defendant was charged by amended information with attempted premeditated murder ( 664, 187, subd. (a); count 1), attempted murder of a peace officer ( 217.1, subd. (b); count 2), assault with a firearm on a peace officer ( 245, subd. (d)(1); count 3), exhibiting a firearm at a peace officer ( 417.8; count 4), two counts of possession of a firearm by a felon ( 12021, subd. (a)(1); counts 5 & 9), two counts of actively participating in a criminal street gang ( 186.22, subd. (a); counts 6 & 10), and two counts of second degree robbery ( 211; counts 7 & 8). The information further alleged that defendant personally used a firearm during the commission of the offenses in counts 1 through 3, 7 and 8 ( 12022.53, subd. (b)), that he committed the offenses in counts 5 and 7 through 9 for the benefit of a criminal street gang ( 186.22, subd. (b)(1)), that he had a prior conviction that qualified as a prior strike ( 1170.12), and that he had served three prior prison terms ( 667.5, subd. (b)). The parties agreed to bifurcate the trial on the alleged priors, and defendant stipulated for purposes of the section 12021 counts that he had a prior felony conviction.

The prosecutions case

Around 6:30 p.m. on October 22, 2004, the two cashiers at the San Lorenzo Liquor Store in King City were robbed of over $10,000. The robber had a dark tattoo on the back and side of his neck. He held a .38 caliber revolver and was wearing black pants, a dark blue or black long-sleeved shirt, black leather gloves, and a ski mask. One of the cashiers told the police officer who responded to the report of the robbery that the robber reminded her of a regular customer of the store named Tony. The cashier identified defendant at trial as that customer.

Parole Officer Terry Davis received a telephone call on November 30, 2004, from Investigator David Norum from the Monterey County District Attorneys office informing him that defendant, a parolee-at-large from Southern California, was in the King City area.[2] Davis gathered more information on defendant, including pictures of defendant and his tattoos, and took the information to his supervisor, parole officer Donald Bottorff. Officers Davis and Bottorff decided that they, along with parole officer Ben Jimenez, would attempt to locate defendant and take him into custody. The officers, who were not in uniform, drove an unmarked Jeep Cherokee to King City around 10:00 a.m. that same day.

After informing the King City Police Department of the reason for their being in the city, the officers drove by the address for defendant that had been given to them. There, Officers Bottorff and Jimenez saw defendant standing outside talking with an individual in a parked car. Officer Davis drove up the block, made a U-turn, stopped and parked the Jeep. After the officers decided to attempt to apprehend defendant, Davis drove back and parked in front of defendants residence. All three officers got out of the Jeep and walked towards defendant. Davis said that he was lost and asked defendant for directions. Defendant stopped his conversation and walked towards the officers. Defendant started to give Davis directions, gesturing with his left hand while keeping his right hand in the pocket of his sweatshirt.

Officer Jimenez called defendant by name, and defendant stopped and looked at Jimenez. Officer Davis said, state parole, youre under arrest, and reached for defendants right arm. Officer Bottorff grabbed defendants left hand and twisted it behind defendants back. Defendant said, Youre not taking me, and turned away from the officers so that his back was to them. Jimenez, who was on defendants right side, grabbed defendant around the neck and Davis grabbed defendant by the waist. Jimenez pulled defendant towards him and all four men went down to the ground. Defendant landed on top of Jimenez, and Davis and Bottorff were on top of defendant. Defendant, Davis and Bottorff immediately got back up. Defendant stood bent over at the waist and with his legs bent. He attempted to pull away from the officers. Davis and Bottorff yelled, relax, and dont fight.

Officer Davis grabbed defendants left ankle, pulled defendants leg up to his buttocks, grabbed defendants belt, and shoved defendant in an attempt to get him back to the ground. Officer Jimenez, who was in front of defendant, also tried to grab defendant. Defendant continued to struggle in an attempt to get away, but he, Jimenez and Davis fell to the ground. Officer Jimenez was on his back, defendant was on top of Jimenez facing him, and Davis was on top of defendant. Officer Davis rolled over onto his back so that he could watch the parked car while still staying on top of defendant. Officer Jimenez told the other officers to spray defendant, so Officer Bottorff, who was at his side still holding on to defendants left hand, sprayed defendant in the face with pepper spray. Defendant said, fuck it, you wont take me.

Officer Jimenez saw defendant bring his right hand out from underneath him. Defendant was holding a gun as though to shoot it. Jimenez yelled, gun. Four or five times, defendant tried to point the gun at Jimenezs head but Jimenez pushed it away. Jimenez testified that defendant had the opportunity to drop the gun each time Jimenez pushed it away but defendant did not do so; instead, each time defendant tried to push the gun back to Jimenezs head. Jimenez also testified that, while it seemed to him that defendant could have pulled the trigger at any time, in fact defendant might not have had a good grip on it. At one point the gun did touch Jimenezs head. Fearing that he would be killed, Jimenez pushed himself out from underneath defendant, stood up, and told the officers to spray defendant. Officer Bottorff pepper sprayed defendant a second time and defendant screamed.

Officer Bottorff could then see that defendant was holding a gun in his right hand as though to shoot it. Bottorff said, Hes got a gun. Bottorff pinned defendants right hand to the ground, raised it up, and hit it against the ground again in an attempt to free the gun from defendants hand. Defendant released his grip on the gun. Officer Jimenez picked up the gun from the ground and saw that it was loaded. He then set it aside and assisted Bottorff in attempting to handcuff defendant. Defendant stopped resisting, so Bottorff pulled defendants hands behind his back and Jimenez handcuffed him. Officer Davis got up off defendant. Jimenez told Davis that defendant had pointed a gun to his head and handed Davis a .38 revolver. Davis put the gun in his pocket. A holster for the gun was found in defendants right front pocket.

Officer Davis called the King City police and gave defendants loaded gun to Officer John Peters when he arrived. Peters unloaded the gun. After defendant was placed in a patrol car, a ski mask and gloves were found in his front pockets. Defendants wallet, drivers license, and items with gang indicia were found during a search of defendants bedroom at the residence. No cash was found either on defendants person or in his bedroom.

King City Police Officer Mark Baker testified that he is his departments gang officer. Baker testified that King City is mainly a Sureno gang town. In his opinion, defendants tattoos are Sureno gang-related, which means that defendant is a gang member and not just an associate or wannabe. Some of the items seized from defendants bedroom were Sureno gang-related. Defendant told jail officials that he was a Sureno gang member and he was placed in the housing unit for active Sureno gang members. In Bakers opinion, defendant is an active Sureno gang member. In addition, in Bakers opinion, both the offenses on October 22, 2004, and the offenses on November 30, 2004, were committed in association with, or for the benefit of, a criminal street gang.

The defense case

Evangelina Ganoa, defendants niece, testified that defendant has been in King City since early 2004. He was at her house on October 22, 2004, between 4:00 and 5:30 p.m., talking with her about her daughters birthday party. Her house is about one block away from the San Lorenzo Liquor Store. Around 5:30 p.m., Ganoa gave defendant a ride to Lynns liquor store, where they waited for defendants girlfriend Maria until about 6:00 p.m. After Maria arrived, Ganoa drove defendant and Maria to the Motel 6 in King City. She left them at the motel around 7:00 p.m. On cross-examination, Ganoa testified that her two brothers and her boyfriend are all Sureno gang members.

Maria Martinez, defendants girlfriend, testified that she arrived back in King City from school in San Jose around 5:45 or 6:00 p.m. on October 22, 2004. She met defendant and his niece at the bus stop in front of Lynns liquor store. They spent time in the store and then, around 7:00 p.m., defendants niece drove them to the Motel 6. On cross-examination Martinez testified that her brother is a Sureno gang member and that she considered herself a Sureno gang member when she was 16 years old, but she has changed her life because she now has a daughter.

Admission of priors,verdicts, post-trial motions, and sentencing

While the jury was deliberating, defendant admitted the prior strike and three prior prison term allegations. ( 1170.12, 667.5, subd. (b).) On August 30, 2005, the jury found defendant guilty as to count 1 of attempted murder of Officer Jimenez ( 664, 187, subd. (a)) with the personal use of a firearm ( 12022.53, subd. (b)), but found not true the allegation that the attempted murder was deliberate and premeditated. The jury also found defendant guilty as to count 2 of attempted murder of Jimenez, a peace officer ( 217.1, subd. (b)), with personal use of a firearm; guilty as to count 3 of assault with a firearm on a peace officer ( 245, subd. (d)(1)) with the personal use of a firearm; guilty as to count 4 of exhibiting a firearm at peace officers ( 417.8); and guilty as to count 5 of being a felon in possession of a firearm on November 30, 2004 ( 12021, subd. (a)(1)), while finding not true the allegation that the offense was committed for the benefit of, or in association with, a criminal street gang. The jury found defendant not guilty of the remainder of the counts.

On October 11, 2005, defendant filed a motion requesting that the court dismiss his strike prior in the interest of justice. The same day, defendant filed a motion for new trial as to counts 1, 2 and 3, contending that the verdicts were contrary to law or evidence ( 1181, subd. 6.). The prosecutor filed opposition to both motions. On October 27, 2005, the trial court denied both motions and sentenced defendant to the indeterminate term of 30 years to life, consecutive to the determinate term of 13 years. The sentence consists of the indeterminate term of 15 years to life on count 2, doubled under the Three Strikes law, consecutive to 10 years for the personal-use enhancement and three years for the prior prison terms. The court imposed and stayed sentences on counts 1, 3, and 4, and imposed a concurrent middle term of two years, doubled, on count 5.

DISCUSSION

Sufficiency of the evidence

Defendant contends that the evidence is insufficient to support the jurys findings that he attempted to kill Jimenez, and thus his convictions on both counts 1 and 2 must be reversed. He argues that proof of both an intent to kill and an attempt was lacking. [Defendant] did no more than repeatedly point a gun at Jimenez. There was no evidence of a direct act by [defendant] that would have caused [Jimenezs] death had it not been avoided by extraneous circumstances, nor of any act demonstrating a specific intent to kill Jimenez. [Defendant] did not cock the gun, he did not attempt to pull the trigger, and he did not fire the gun. He never threatened to kill Jimenez or anyone, and expressed only a desire to get away.

In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 139.) [W]e do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, 312.) We simply consider whether

any rational trier of fact could have found the essential elements of [defendants] crime beyond a reasonable doubt. [Citations.] [Citation.] Unless it is clearly shown that on no hypothesis whatever is there sufficient substantial evidence to support the [jurys] verdict, we will not reverse. [Citation.] (People v. McCloed (1997) 55 Cal.App.4th 1205, 1221.)

Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.] (People v. Lee (2003) 31 Cal.4th 613, 623; see also, People v. Moore (2002) 96 Cal.App.4th 1105, 1112 (Moore).) In deciding whether or not such an act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the killing or devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt. However, acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to kill. The acts must be an immediate step in the present execution of the killing, the progress of which would be completed unless interrupted by some circumstances not intended in the original design. (Moore, supra, 96 Cal.App.4th at p. 1112, citing CALJIC No. 8.66; see also, People v. Miller (1935) 2 Cal.2d 527, 530 (Miller).)

To constitute murder, the guilty person need not intend to take life; but to constitute an attempt to murder, he must so intend. [Citation.] The wrong-doer must specifically contemplate taking life; and though his act is such as, were it successful, would be murder, if in truth he does not mean to kill, he does not become guilty of an attempt to commit murder. [Citation.] [Citations.] (People v. Bland (2002) 28 Cal.4th 313, 327-328.) There is rarely direct evidence of a defendants intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendants actions. [Citation.] (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) One who intentionally attempts to kill another does not often declare his state of mind before, at, or after the moment he [acts]. Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the putative killers actions and words. Whether a defendant possessed the requisite intent to kill is, of course a question for the trier of fact. While reasonable minds may differ on the resolution of that issue, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) Our role is to determine the legal sufficiency of the found facts and not to second guess the reasoning or wisdom of the fact finder. (Id. at p. 946.)

Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citations.] [Citation.] (People v. Thomas (1992) 2 Cal.4th 489, 514 (Thomas).)

The prosecution need not prove that the defendant actually threatened to kill the victim, or that the victim suffered any wounds. [A]ttempted murder might involve no bodily injury at all. (People v. Wells (1983) 149 Cal.App.3d 497, 505.) If the defendant did make threats, even if they were generic threats, they may show the defendants homicidal intent where other evidence brings the actual victim within the scope of the threats. (People v. Rodriguez (1986) 42 Cal.3d 730, 757.) However, specific intent to kill cannot be inferred merely from the commission of another dangerous crime. For example, intent to murder cannot be inferred from commission of the crime of assault with a deadly weapon, and a charge of assault-with-a-deadly-weapon-with-intent-to-murder requires proof of specific intent to murder above and beyond proof of the assault with a deadly weapon. [Citations.] (People v. Belton (1980) 105 Cal.App.3d 376, 380-381.) There must be some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter. [Citation.] (Miller, supra, 2 Cal.2d at p. 530.) [W]henever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt, . . . [Citations.] (Id. at p. 531.)

We find substantial evidence in this case to support the jurys finding that defendant committed attempted murder of a peace officer. The evidence shows that defendant committed more than an assault on Jimenez, a parole officer, with a deadly weapon. Defendant had a loaded gun in his pocket when he struggled with three parole officers in an attempt to flee. However, the officers took defendant to the ground, and defendant landed on top of Jimenez while the other two officers were on top of him. At that point, defendant said you wont take me, pulled out the gun from his pocket, held it in a shooting grip, and attempted to place it at Jimenezs head. Four or five times, Jimenez pushed the gun away but defendant pushed it back and, once, the gun actually touched Jimenezs head. Jimenez testified that each time he pushed the gun away, defendant had the opportunity to drop the gun, but did not do so until Bottorff forced him to. This is sufficient evidence from which a rational trier of fact could find that defendant intended to kill Jimenez and committed a direct but ineffectual act toward accomplishing the intended killing. (Moore, supra, 96 Cal.App.4th at p. 1112.)

Defendant contends that the mere pointing of a gun, without an attempt to fire it, is insufficient to support the conviction. He notes that Jimenez testified that defendant could have pulled the trigger at any time, but did not do so. Defendant cites People v. Lenart (2004) 32 Cal.4th 1107 (Lenart) in support of his claim. In Lenart, the defendant, who had already killed a bartender, pointed a gun at a woman who unexpectedly entered the bar and ordered the woman onto the floor. The woman grabbed hold of the defendants gun. The woman testified that the defendant kept trying to point the gun at her and in their struggle it fired. The defendant then withdrew one hand from the gun in order to put the woman in a choke hold. When the woman, still holding the gun, twisted free and fled, the defendant followed her. (Id. at p. 1126.) The Supreme Court found this evidence sufficient to support an attempted murder conviction. Had defendant intended merely to incapacitate or delay [the woman] long enough to make his escape, he could have fled when she gained control of his revolver, but instead he followed her outside onto the sidewalk. His pursuit of [the woman] supports the finding that defendant intended to kill her. Moreover, the jury could reasonably have found that defendants earlier actseither his ordering [the woman] at gunpoint to the floor or his attempt to turn the revolvers barrel at her as they struggledwere consistent with that intent. (Ibid.)

In this case, had defendant merely intended to incapacitate Officer Jimenez, he could have hit Jimenez with the gun or even shot him in his arm or leg. Instead, defendant repeatedly attempted to point the gun at Jimenezs head. His repeated attempts to point the gun at Jimenezs head without firing a shot, which would most certainly cause a fatal wound, supports the finding that defendant intended to kill Jimenez. Moreover, the jury could reasonably have found that defendants statement, you wont take me, and his failure to drop the gun when he had several opportunities to do so was consistent with that intent. That the circumstances might also support a contrary finding does not warrant reversal of the judgment. (Thomas, supra, 2 Cal.4th at p. 514.)

Lesser included offense

Defendant contends, and the Attorney General concedes, that the conviction for attempted murder ( 664, 187, subd. (a)) on count 1, must be reversed because it is a lesser included offense of attempted murder of a peace officer ( 217.1, subd. (b)). We agree with the concession.

People v. Ortega (1998) 19 Cal.4th 686 (Ortega), explained: Section 954 states that [a]n accusatory pleading may charge . . . different statements of the same offense and the defendant may be convicted of any number of the offenses charged. Section 654 states: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of punishment, but in no case shall the act or omission be punished under more than one . . . . In People v. Pearson (1986) 42 Cal.3d 351, 359, . . . we recognized the tension between these statutes, observing: This court has long struggled with the problem of permitting multiple convictions while protecting the defendant from multiple punishment. The solution we have adopted is, in general, to permit multiple convictions on counts that arise from a single act or course of conductbut to avoid multiple punishment, by staying execution of sentence on all but one of those convictions. (Id. at p. 360.) [] But despite the seemingly absolute language of section 954 (the defendant may be convicted of any number of the offenses charged), there is an exception to the general rule permitting multiple convictions. Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses. [Citations.] (People v. Pearson, supra, 42 Cal.3d 351, 355, italics in original.) The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense. [Citations.] (Ibid.) (Ortega, supra, 19 Cal.4th at p. 692.)

If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed. (People v. Moran (1970) 1 Cal.3d 755, 763.)

We have already determined that the evidence supports the jurys verdict as to count 2, attempted murder of a peace officer. The jury also found that defendant committed attempted murder of a human being, as charged in count 1. Attempted murder of a peace officer ( 217.1, subd. (b)), cannot be committed without also committing attempted murder of a human being ( 664, 187, subd. (a)). Accordingly, the conviction on count 1 is a lesser necessarily included offense of count 2 and we must vacate the conviction on count 1.

DISPOSITION

The judgment is ordered modified by vacating the conviction for attempted murder on count 1. As so modified, the judgment is affirmed.

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Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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MCADAMS, J.

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DUFFY, J.

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[1]Further unspecified statutory references are to the Penal Code.

[2]Norum talked to defendant while investigating an unrelated case. Norum then talked to defendants parole officer in Imperial County, who informed him that defendant was a wanted parolee-at-large.