Opinion
F079200
04-27-2022
THE PEOPLE, Plaintiff and Respondent, v. JERRY LEE BIVENS, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F17900679. W. Kent Hamlin, Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
INTRODUCTION
Appellant Jerry Lee Bivens was convicted of attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)); two counts of assault with a firearm (§ 245, subd. (a)(2)); shooting at an occupied motor vehicle (§ 246); and possession of a firearm by a felon (§ 29800, subd. (a)(1)). In addition, enhancement allegations were found true for the personal use of a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and the infliction of great bodily injury (§ 12022.7, subd. (a)). Bivens admitted he had suffered a prior strike conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and he had served four prior prison terms (§ 667.5, subd. (b)). He was sentenced to a prison term of life with the possibility of parole plus 23 years.
All further undefined statutory citations are to the Penal Code unless otherwise indicated.
Bivens raises the following claims on appeal: (1) the trial court erred by allowing a detective to testify that he saw the shooter touch the victim's vehicle in surveillance video depicting the shooting; (2) the trial court erred by instructing the jury on the "certainty factor" in CALCRIM No. 315, pertaining to eyewitness identifications; (3) there is insufficient evidence of premeditation and deliberation; (4) he was incorrectly advised of his maximum exposure, causing him to reject a favorable plea offer; (5) portions of the sentence imposed are unauthorized and require resentencing; and (6) the minute order and abstract of judgment from the sentencing hearing contain clerical errors that require correction. In a supplemental brief, Bivens further contends he is entitled to resentencing pursuant to newly enacted Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill No. 518), which amended section 654.
We conclude resentencing is required because portions of the sentence imposed are unauthorized. Bivens's claims that the abstract of judgment must be corrected and that he is entitled to resentencing pursuant to Assembly Bill No. 518 are therefore moot. The judgment of conviction is otherwise affirmed.
PROCEDURAL HISTORY
On October 11, 2017, the Fresno County District Attorney's Office filed an amended information charging Bivens with two counts of attempted premeditated murder (§§ 187, subd. (a), 664, subd. (a)); shooting at an occupied motor vehicle (§ 246); two counts of assault with a firearm (§ 245, subd. (a)(2)); and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The information further alleged enhancements for the infliction of great bodily injury (§ 12022.7, subd. (a)); and firearm use enhancements (§§ 12022.53, subd. (d); 12022.5, subd. (a)). The information also alleged Bivens had suffered a prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and he had served four prior prison terms (§ 667.5, subd. (b)).
On October 23, 2017, a jury found Bivens not guilty of one of the two charged counts of attempted premediated murder, but guilty as to all remaining counts. The jury further found true the firearm and great bodily injury enhancement allegations.
On October 24, 2017, following a bifurcated proceeding, Bivens admitted the strike and prior prison term allegations.
On April 24, 2019, Bivens was sentenced to a prison term of life with the possibility of parole plus 23 years.
That same day, Bivens filed a timely notice of appeal.
STATEMENT OF FACTS Prosecution's Case
On January 24, 2017, at approximately 3:00 p.m., Monica O., and her sister Mindy O., drove Monica's father's Toyota Avalon to a liquor store to pick up their sister, Alina M., who had requested a ride. When Monica and Mindy arrived at the liquor store, Alina was not there. Mindy was unable to contact her.
After sitting in the parking lot for several minutes, Bivens, Alina's boyfriend, unexpectedly hopped into the backseat of the vehicle. Bivens was wearing a black hoodie and pants, and Monica could see the handle of a gun sticking out of his waistband. Monica had only met Bivens three or four times.
Bivens directed Monica and Mindy to the Travel Inn motel across the street to look for Alina. Unable to find her there, Bivens directed the women to a second motel approximately two minutes away, the Sierra Inn. When they arrived, Monica observed a blue or black Chevy Tahoe in the parking lot.
Alina was coming down the stairs of the motel when Bivens suddenly exited the rear driver's side of the vehicle. Within seconds, Monica and Mindy heard three or four gunshots. Monica also heard glass shatter.
As Mindy was backing out, the Tahoe struck the left side of the Avalon. Monica and Mindy exited the vehicle and ran. Alina got into the Avalon and drove it to the Travel Inn motel.
Matthew Parker was the driver of the Tahoe. He did not know Bivens. On the day of the incident, he met his friend, Whitney Cole, in the parking lot of the Sierra Inn motel. Parker was driving a blue Tahoe SUV. Cole got into the Tahoe and the two began talking.
Suddenly, Parker heard three or four gunshots coming from the passenger side of the vehicle. He also heard glass shatter. Parker claimed that he did not see anyone shooting at the vehicle.
Parker drove away, hitting the Avalon, which was blocking his exit. Cole said, "You been hit," and Parker looked down to see that he was bleeding. Parker drove to the hospital. He had suffered two gunshot wounds to his abdomen.
Fresno Police Officer Ricardo Gonzalez questioned Parker at the hospital. According to Gonzalez, Parker was evasive. He also related several different versions of the events preceding the shooting.
Parker did not testify at Bivens's trial. He told an investigator for the district attorney's office that he did not want to be involved with the case. At trial, Parker's sworn testimony from Bivens's preliminary hearing was read to the jury as Parker could not be located.
Fresno Police Officer Dirk Reed attempted to speak with Cole at the hospital. She was "not really" cooperative, and she could not be located at the time of Bivens's trial.
A crime scene technician took photographs of the Tahoe while it was parked at the hospital. A bullet fragment was found below the passenger's side window frame, the passenger's side window had been shattered, a bullet hole was lodged in the driver's side door, and the front end had sustained "fresh damage" all the way from the passenger's side door to the driver's side door.
Surveillance video from the motel depicted the shooting. Fresno Police Detective Justin Bell reviewed the video on January 26, 2017. He observed the suspect touch the blue Tahoe with his left hand after the Tahoe struck the Avalon, and while the Tahoe was moving toward the exit of the motel parking lot.
Bell contacted the crime scene investigation bureau to have the area where the suspect touched the Tahoe processed for latent fingerprints. Two fingerprints were recovered, one of which matched Bivens's fingerprint.
Four or five days after the incident, during police questioning, Monica identified "JB" as the man who was in her backseat just prior to the shooting. She explained that JB was her sister's boyfriend. At trial, Monica identified Bivens as the man who had directed her and Mindy to drive to the Sierra Inn motel to search for Alina.
On February 1, 2017, Bivens was taken into custody.
ANALYSIS
I. Detective Bell's Testimony
Based upon what he had observed in surveillance video depicting the shooting, Bivens testified he contacted the crime scene bureau to determine whether a fingerprint could be lifted from the area where the suspect appeared to have touched the Tahoe. Bivens contends the trial court abused its discretion by permitting Bell to testify about what he observed in surveillance video depicting the shooting. The People assert Bell's testimony was properly based upon his perception of events depicted in the surveillance video, and his testimony explained why he had the Tahoe processed for fingerprints. We find no error, nor prejudice assuming error.
A. Background
1. In Limine Ruling
On September 7, 2017, during an in limine hearing, defense counsel objected to "any narrative or description or question and answer from an officer who has simply retrieved video and the media from commenting on what is being displayed by the video." The trial court agreed. The court explained, "I don't want an officer opining on what's on the video anymore than I want officers telling us what a document means in a contract case, or, you know, what a statement by a witness means, or what they thought the witness meant when they made a statement."
The court added, "So as far as the opinions about what's going on here, I think that's for you to argue to the jury at the end of the case, not for the officers to suggest through their experience and training that somehow they know what's going on here." One example the court gave concerning testimony that would be prohibited would be a witness testifying that Bivens is a pimp. The court explained that testimony should be excluded because that opinion would lack foundation.
The court stated it would provide additional guidance to the parties when presented with challenged testimony but advised the prosecutor that if the People sought to introduce evidence that the shooting was related to prostitution activity, they "need to get there through admissible evidence and not through inadmissible opinions."
The prosecutor replied that Bell "does have the opinion that the surveillance video shows Jerry Bivens and can identify him as the person in the video appears to be Jerry Bivens to me." He added, "I believe that's an opinion, but if someone recognizes a person they know, I don't believe that's an invalid or inadmissible opinion." The trial court responded that such an opinion would not be relevant because the jurors could simply look at a photograph and determine whether it depicted the defendant or not.
The court concluded, "So we just kind of want to direct witnesses to what they actually saw, not what's depicted. Certainly don't need an officer saying, 'Yeah, I believe that's him,' because I don't think that's relevant. I think if the video clearly depicts him, then you are the person who in argument says, 'You saw the video. We'll play it for you again if you'd like to see it. That's him.' And that's what matters is the jurors' conclusion."
2. Detective Bell's Challenged Testimony
During the prosecutor's direct examination of Bell, Exhibit No. 36 was played, which depicted the shooting. Bell confirmed that he had reviewed the same surveillance video on January 26, 2017. The following exchange ensued:
"[PROSECUTOR]: When you're watching the surveillance video in an investigation, what were you looking for?
"[BELL]: I'm looking for anything that stands out. Obviously, you have your crime. But for us we're trying to identify who potentially is involved in that crime. So the things that jump out. Looks like he reaches into the vehicle. Looks like he jumped out of the vehicle before it even parked. And you also see a point when he actually touched that blue Tahoe. Those are the things that
"[DEFENSE COUNSEL]: Move to strike out the last answer. Motion in limine.
"[THE COURT]: There's reference to he. There is not opinion as to who he is. There is statements about what he observed the individual do. So I don't think it crosses the line of our motion in limine. Overruled."
The prosecutor continued questioning Bell about the point at which he believed the suspect had touched the Tahoe. He then asked Bell what he did after making this observation. Bell replied, "I called our crime scene [b]ureau, because we still had the blue Tahoe in storage, and told them to meet me at the tow yard. Cause I wanted to see if we could lift fingerprints from that area where the suspect touched the vehicle."
The prosecutor adduced evidence showing that two latent fingerprints were lifted from the Tahoe. One of those fingerprints matched the fingerprint of Bivens.
B. Relevant Legal Principles
"A lay witness may testify to an opinion if it is rationally based on the witness's perception and if it is helpful to a clear understanding of his testimony." (People v. Farnam (2002) 28 Cal.4th 107, 153, citing Evid. Code, § 800.) "The decision whether to permit lay opinion rests in the sound discretion of the trial court." (People v. Bradley (2012) 208 Cal.App.4th 64, 83, citing People v. Medina (1990) 51 Cal.3d 870, 887.)
C. Analysis
Bell's testimony was rationally based upon his perception of events depicted in the surveillance video and it explained his course of conduct, i.e., why he had the door and window of the Tahoe processed for latent fingerprints two days after the shooting had occurred. We conclude the trial court did not abuse its discretion by ruling Bell's testimony admissible.
Bivens contends the jury was equipped to determine whether or not the suspect had actually touched the Tahoe. As a result, he argues Bell's testimony was irrelevant, cumulative, and unhelpful to the jury. Bivens further contends that Bell's testimony about actions the shooter purportedly took was "relied upon heavily to prove [Bivens] was the shooter, [and] invaded the jury's responsibility to decide for itself whether the fingerprint was deposited during the shooting or at some time earlier." Not so.
Bivens contends Bell's testimony should have been excluded under Evidence Code section 352, because his testimony was cumulative to the video. Trial counsel did not object to Bell's testimony under Evidence Code section 352 below. Consequently, his claim has been forfeited. (See People v. Alexander (2010) 49 Cal.4th 846, 905; Evid. Code, § 353, subd. (a) [a verdict shall not be set aside based upon the erroneous admission of evidence unless an objection was timely made and the specific ground clearly stated].)
Bell's testimony merely explained his actions in investigating the shooting based upon personal observations he made while reviewing the surveillance video. His testimony was therefore helpful and relevant to explaining his actions. The task of determining whether the shooter had actually touched the Tahoe, whether Bivens's fingerprint was deposited during the shooting or some earlier time, and ultimately, whether Bivens was the shooter remained within the exclusive province of the jury.
Contrary to Bivens's assertions, Bell's testimony did not invade the province of the jury. The cases Biven's directs us to in support of his assertion are factually distinguishable and nonbinding upon this court. (See, e.g., Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 737-738 [expert's testimony that 99.5 percent of children in sexual abuse cases tell the truth invaded the province of the jury by directly bolstering the credibility of the victims]; United States v. LaPierre (9th Cir. 1993) 998 F.2d 1460, 1465 [officer's lay opinion testimony that the defendant was the individual depicted in bank surveillance photographs "ran the risk of invading the province of the jury and unfairly prejudicing" the defendant].) Bell's testimony did not improperly bolster the credibility of one of the witnesses, nor did he improperly opine that Bivens was the subject depicted in the surveillance video.
Even if we assume the admission of Bell's challenged testimony was an abuse of the trial court's discretion, we conclude the error was not prejudicial. Absent fundamental unfairness, the erroneous admission of evidence is ordinarily subject to Watson review for error under state evidentiary rules. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Benavides (2005) 35 Cal.4th 69, 91 ["generally, violations of state evidentiary rules do not rise to the level of federal constitutional error"]; People v. Partida (2005) 37 Cal.4th 428, 439 ["Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test."].) As nothing about Bell's challenged testimony rendered Bivens's trial fundamentally unfair, the standard of prejudice articulated in Watson applies.
Under Watson, a judgment may be overturned only if" 'it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.'" (Watson, supra, 46 Cal.2d at p. 836.) No such probability exists upon this record. The evidence supporting the conclusion that Bivens was in fact the shooter is overwhelming. Based upon Monica's testimony that Bivens had exited the Avalon just prior to the shooting and that he was armed, surveillance video depicting the shooting, and the discovery of Bivens's latent fingerprint on the Tahoe in the same area where the shooter had ostensibly touched the Tahoe, there is no reasonable probability that a result more favorable to Bivens would have been reached had the challenged testimony been excluded. (Watson, at p. 836.)
II. CALCRIM No. 315
Next, Bivens argues the trial court prejudicially erred by instructing the jury that it may consider the extent to which an eyewitness is certain or uncertain of their identification, pursuant to CALCRIM No. 315. The People argue the error was invited by defense counsel because counsel requested CALCRIM No. 315, over the prosecutor's objection. They further contend any error was not prejudicial.
" 'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) For the doctrine to apply, it" 'must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.'" (Ibid.)
In People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke), which was filed after the parties submitted their appellate briefs in this case, our Supreme Court held that based upon the record before it, the inclusion of the certainty factor in CALCRIM No. 315 had not violated the defendant's due process rights. (Lemcke, at pp. 654-661.) Guided by Lemcke and considering the challenged instruction in the full context of the record, we conclude Bivens has failed to show prejudicial error. Finding no merit to Bivens's claim, we do not address the People's assertion that the doctrine of invited error forecloses Biven's claim.
A. Background: Eyewitness Identification Evidence & Jury Instructions
Monica identified "JB" as the man who was in her backseat just prior to the shooting. She explained that JB was her sister's boyfriend. At trial, Monica identified Bivens as the man who had directed her and Mindy to drive to the Sierra Inn Motel to search for Alina. Monica never explicitly stated she was certain in her identification.
Over the prosecutor's objection, defense counsel requested the jury be instructed pursuant to CALCRIM No. 315. This instruction sets forth 14 factors for the jury to consider in evaluating identification testimony, including: "How certain was the witness when he or she made an identification? The court explained the instruction was warranted because the accuracy of Monica's identification of the person who entered her vehicle and directed her and Mindy to drive to the motel where the shooting occurred "depends upon the kinds of factors that are in 315." Further, the court stated the instruction was required because it had been requested by defense counsel.
The jury was further instructed that "The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crimes. If the People have not met this burden, you must find the defendant not guilty," that "A defendant in a criminal case is presumed to be innocent," and "Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty," and with respect to witness testimony generally, "People sometimes honestly forget things or make mistakes about what they remember."
B. Relevant Legal Principles
In Lemcke, the prosecution's eyewitness identified the defendant as the perpetrator of an assault and robbery on three occasions, twice before trial in six-pack photographic lineups, and once at trial. (Lemcke, supra, 11 Cal.5th at pp. 648-650.) The eyewitness expressed certainty in her identifications. (Id. at pp. 649-650.) At trial, defense counsel vigorously attacked the identifications. (Id. at p. 660.) Defense counsel called an eyewitness identification expert witness who testified at length about the weak correlation between the certainty and accuracy of eyewitness identifications, particularly with respect to in-court identifications. (Ibid.) The defendant also cross-examined the eyewitness and the investigating officers who had conducted the photographic lineups. (Id. at pp. 650-652.)
In language virtually identical to CALCRIM No. 315, the trial court instructed the jury on 15 factors it should consider in evaluating the accuracy of an eyewitness's identification, including how certain the witness was when she made the identification. (Lemcke, supra, 11 Cal.5th at pp. 652, 654, fn. 5.) During closing argument, the prosecution focused on the eyewitness's testimony, arguing the eyewitness's consistent identification of the defendant was accurate, in part because of the eyewitness's unwavering certainty. (Id. at p. 652.)
The defendant was convicted, and the appellate court affirmed, concluding it was bound by People v. Sánchez (2016) 63 Cal.4th 411 (Sánchez) and People v. Johnson (1992) 3 Cal.4th 1183, which had expressly approved the use of similarly worded model instructions on witness certainty. (See Sánchez, at pp. 461-463; Johnson, at pp. 1231-1232.) In the California Supreme Court, Lemcke argued that the certainty factor as stated in the jury instructions had violated his due process rights by (1) lowering the prosecution's burden of proof, and (2) denying him a meaningful opportunity to present a complete defense on the issue of identity. (Lemcke, supra, 11 Cal.5th at p. 657.) Our Supreme Court found both claims meritless. (Id. at pp. 654-661.)
With respect to Lemcke's claim that the certainty factor lowered the prosecution's burden of proof, the court observed, "[t]he instruction leaves the jury to decide whether the witness expressed a credible claim of certainty and what weight, if any, should be placed on that certainty in relation to the numerous other factors listed." (Lemcke, supra, 11 Cal.5th at p. 657.) The court further observed the jury had been instructed that (1) the jurors were responsible for judging the credibility of witnesses, who sometimes make honest mistakes about what they remember; (2) the defendant was presumed innocent; and (3) that in addition to proving the elements of the charged crimes, the prosecution was required to prove the defendant's identity as the perpetrator beyond a reasonable doubt. (Id. at p. 658.)
As to Lemcke's claim that he was denied a meaningful opportunity to present a complete defense, the court observed that Lemcke "had the opportunity to cross-examine [the eyewitness] and the investigating officers regarding her identifications and the procedures used during the photographic lineups," and had "elicited numerous inconsistencies in other aspects of [her] recollection." (Lemcke, supra, 11 Cal.5th at p. 660.) Our Supreme Court concluded that the inclusion of the certainty factor in the eyewitness identification instruction had not rendered the trial fundamentally unfair. (Id. at pp. 646, 661.) However, the court instructed trial courts to omit the certainty language from CALCRIM No. 315 until the instruction is modified by the Judicial Council. (Id. at pp. 668-669.)
C. Analysis
Here, as in Lemcke, the jury was instructed pursuant to CALCRIM No. 315, which directed the jury to consider, "[h]ow certain was the witness when he or she made an identification?" We conclude that listing the witness's level of certainty as one of 14 factors the jury should consider when evaluating an eyewitness's identification did not render Bivens's trials fundamentally unfair nor did it amount to a violation of his due process rights.
Although the jury was instructed to consider the witness's certainty in making an identification, here, as in Lemcke, the jury was further instructed that (1) the prosecution had to prove Bivens's guilt beyond a reasonable doubt; (2) Bivens was entitled to a presumption of innocence; and (3) the jurors were responsible for judging the credibility of witnesses, who sometimes make honest mistakes about what they remember.
Considering the challenged portion of CALCRIM No. 315," '" 'in the context of the instructions as a whole and the trial record[]'" '" (Lemcke, supra, 11 Cal.5th at p. 658, citing People v. Foster (2010) 50 Cal.4th 1301, 1335), we find no due process violation for several reasons. First, "the instruction does not direct the jury that" 'certainty equals accuracy.'" (Lemcke, at p. 647.) Insofar as "the wording of the instruction might cause some jurors to infer that certainty is generally correlative of accuracy" (Id. at p. 657), nothing foreclosed Bivens from presenting his own eyewitness identification expert, who could have explained that certainty is not necessarily predicative of accuracy.
Based upon the fact that he elected not to present such evidence, we presume the jury's consideration of the eyewitness's identification in the context of CALCRIM No. 315, was simply not critical in light of the strong evidence the jury had to consider on the issue of identity. To this end, the jury was shown surveillance video which depicted the shooting, it heard testimony that Bivens had exited the Toyota Avalon moments before the shooting occurred, and a latent fingerprint matching Bivens's fingerprint was recovered from the Tahoe in the same area where the shooter appeared to have touched the vehicle. The evidence supporting the conclusion that Bivens was the perpetrator of the shooting is overwhelming.
Second, nothing upon the record suggests Bivens was denied the opportunity to present a complete defense. (Lemcke, supra, 11 Cal.5th at p. 660.) Trial counsel had the opportunity to cross-examine the witnesses, including Monica, who had identified Bivens as the man who had exited the Avalon just moments before the shooting occurred. Indeed, during cross-examination, defense counsel elicited testimony from Monica establishing that she had only met Bivens on three or four prior occasions and she could not remember whether he had facial hair, a shaved head, wore jewelry, or details about the clothing he was wearing on the day of the shooting. Thus, defense counsel had the opportunity to attack the credibility of Monica's identification.
Finally, the remainder of the instructions required the jury to find Bivens not guilty if the People failed to meet their burden of proof beyond a reasonable doubt, and the instructions made clear that Bivens was entitled to a presumption of innocence. Viewing the challenged portion of CALCRIM No. 315 in the context of these instructions, we are persuaded that the certainty language within CALCRIM No. 315 did not lower the prosecution's burden of proof. (Lemcke, supra, 11 Cal.5th at p. 658.)
While our Supreme Court has recognized that eyewitness confidence is generally an unreliable indicator of accuracy, the jury's consideration of this factor does not invariably result in constitutional violation. (Lemcke, supra, 11 Cal.5th at p. 669.) Rather, the defendant must prove that a constitutional violation has occurred. (Ibid.) Upon this record, we are not persuaded Bivens has met his burden.
III. Sufficiency of the Evidence Supporting Jury's Finding of Premeditation and Deliberation
Bivens challenges the sufficiency of the evidence supporting the jury's finding of premeditation and deliberation as to his conviction for attempted murder. We conclude there is substantial evidence supporting the jury's finding.
A. Background: People's Exhibits Nos. 36 & 38
People's Exhibit Nos. 36 and 38 were played for the jury at trial. These exhibits consist of portions of surveillance video depicting the shooting from different angles. In the videos, the shooter opens the rear passenger side door of the Toyota Avalon while the vehicle is still moving. The shooter exits the vehicle and walks hastily toward the blue Tahoe, holding a firearm in his right hand. After at least four seconds, the shooter comes within 10 feet of the Tahoe before the Tahoe drives toward the exit of the parking lot and strikes the Avalon. The shooter follows the Tahoe the entire time and appears to touch the passenger side door of the Tahoe as the Tahoe attempts to exit. Less than 20 seconds after Parker drives away, a vehicle stops and picks up the perpetrator.
B. Relevant Legal Principles
On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence" 'is whether, after viewing 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.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.)" '[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt.'" (Nguyen, at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (Zamudio, at p. 357.)
Bivens was convicted of the willful, deliberate, and premediated attempted murder of Parker. An intentional attempted killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection, rather than an unconsidered or rash impulse. (People v. Boatman (2013) 221 Cal.App.4th 1253, 1264; People v. Cole (2004) 33 Cal.4th 1158, 1224.)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our Supreme Court identified three categories of evidence relevant to the issue of premeditation and deliberation in cases based on circumstantial evidence:" '(1) facts about how and what [the] defendant did prior to the actual killing ... what may be characterized as "planning" activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of "a pre-existing reflection" and "careful thought and weighing of considerations" rather than "mere unconsidered or rash impulse hastily executed" [citation]; [and] (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life in a particular way for a "reason" which the jury can reasonably infer from facts of type (1) or (2).'" (People v. Thomas (1992) 2 Cal.4th 489, 516-517, quoting Anderson, at pp. 26-27.)
All of these factors need not be present to support a finding of premeditation and deliberation. (People v. Pride (1992) 3 Cal.4th 195, 247.) The Anderson factors are merely categories of evidence to be used as a framework in the analysis of the sufficiency of the evidence of premeditation and deliberation. (See People v. Perez (1992) 2 Cal.4th 1117, 1125 .) Thus, the Anderson factors are neither exclusive nor dispositive of the question of premeditation and deliberation. (Perez, at p. 1125)
C. Analysis
From the evidence presented, the jury reasonably could have inferred the attempted murder of Parker was willful, deliberate, and premeditated. Although the prosecutor did not adduce evidence of a motive for the shooting, there was substantial evidence of planning. As discussed further below, the evidence of planning, in conjunction with the manner in which the shooting was committed, amply support the jury's finding of premeditation.
1. Planning
Although Bivens directed Monica and Mindy to the Sierra Inn motel for the apparent purpose of searching for Alina, surveillance video depicts Bivens exiting the Avalon immediately after the vehicle entered the motel parking lot. He opens the left passenger side door before the vehicle comes to a complete stop.
Bivens is carrying a loaded firearm in his right hand as he hastily walks toward the blue Tahoe, which is parked in plain view of the entrance. Approximately four to six seconds pass before Bivens reaches the Tahoe and Parker begins to drive away. Bivens follows the Tahoe through the parking lot as Parker attempts to exit the parking lot, striking the Avalon in the process. Bivens appears to touch the passenger's side door of the Tahoe before it drives away. At some point during the encounter, Bivens fired three to four shots at the Tahoe, striking Parker in the abdomen.
From the video, we cannot ascertain precisely when the shots were fired or the succession in which the shots were fired because the video does not have audio. We observe however that the shooter persistently followed the Tahoe as Parker attempted to flee. It is therefore reasonable to infer that Bivens, the shooter, was the aggressor throughout the confrontation.
From this evidence, the jury could reasonably infer that Bivens, who had already removed the loaded firearm from his waistline before he exited the Avalon, and targeted a fleeing Parker throughout the encounter, had planned to kill Parker. (See People v. Koontz (2002) 27 Cal.4th 1041, 1082 [evidence of planning where assailant armed himself and followed victim].)
Although only seconds elapsed between the point at which Bivens exited the Avalon and when he presumably began to shoot, premeditation and deliberation can occur in a"' "brief interval." '" (People v. Solomon (2010) 49 Cal.4th 792, 812; see also People v. Brito (1991) 232 Cal.App.3d 316, 324 [defendant's "formulation of the manner in which he would attempt to kill his victim may have occurred during a matter of seconds" but did not defeat finding of deliberation and premeditation]; People v. San Nicolas (2004) 34 Cal.4th 614, 658 [brief period between seeing the victim's reflection in a mirror and turning around to stab her was "adequate for defendant to have reached the deliberate and premeditated decision to kill"]; People v. Jones (1963) 215 Cal.App.2d 341, 346 ["' "[t]here need be no appreciable space of time between the intention to kill and the act of killing; they may be as instantaneous as successive thoughts of the mind"' "].)
Premeditation and deliberation do not require an extended period of time for reflection, but merely an opportunity for reflection. (People v. Cook (2006) 39 Cal.4th 566, 603.) From the evidence adduced at trial, it is clear that Bivens had the opportunity for reflection but continued to target Parker as Parker fled.
2. Method/Manner
Bivens, armed, came within a close distance of the Tahoe, fired several shots, and continued to follow the Tahoe as Parker fled. The firing of multiple shots at close range strongly supports a finding of premeditation and deliberation. (People v. Francisco (1994) 22 Cal.App.4th 1180, 1192 [the manner of killing was indicative of premeditation and deliberation where five or six shots were fired from a car five feet from the victim].)
There is no evidence of provocation by Parker, a warning by Bivens, or that a struggle preceded the shooting. The fact that Bivens and Parker did not interact before the shooting supports the conclusion that the shooting "was the result of a deliberate plan rather than a 'rash explosion of violence.'" (People v. Miranda (1987) 44 Cal.3d 57, 87, disapproved on another point in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)
Nor was there any evidence that Parker or Cole were armed. An assailant's use of a firearm against a defenseless victim may show sufficient deliberation. (See People v. Bolin (1998) 18 Cal.4th 297, 332-333.) Indeed, not only were Parker and Cole unarmed, they were attempting to flee as Parker persistently followed them. "[F]iring at a fleeing victim reasonably reflects an intention to kill." (Id. at p. 319.)
The manner in which the shooting occurred, in addition to evidence showing the shooting was planned, amply support the jury's finding of deliberation and premeditation. Contrary to Bivens's claim that the record must contain "extremely strong evidence" of planning, "[t]he Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder [or attempted murder], nor are they exclusive." (People v. Perez, supra, 2 Cal.4th at p. 1125.) We are persuaded that upon this record, there is ample evidence of premeditation and deliberation.
Bivens acknowledges there is evidence of planning, including a possible prearranged departure, but suggests that if the shooting were indeed planned, it could have been committed at a remote location without any witnesses. Our task is not to question the wisdom of Bivens's plan or the manner in which he chose to execute it. Thus, the fact that Bivens could have achieved his preconceived goal had he carried out his plan in another location is of no consequence.
Insofar as Bivens observes that only one shot actually hit Parker, that does not undermine the jury's finding of premeditation. The surveillance videos depicting the shooting leave no doubt that had Bivens's aim been more accurate, Parker would not have survived the shooting. We reject Bivens's assertions that the evidence was insufficient to support the jury's finding of premeditation.
IV. Bivens's Habeas Corpus Claim
During the pendency of the instant appeal, appellate counsel for Bivens filed an application to expand her appointment to include the preparation and filing of a petition for writ of habeas corpus. This court granted counsel's request, and on April 23, 2020, Bivens filed a petition for writ of habeas corpus.
In his petition for writ of habeas corpus and in the instant appeal, Bivens contends trial counsel was ineffective for failing to advise him that his maximum prison sentence was 82 years to life. Bivens contends if trial counsel had correctly advised him, he would have accepted the prosecutor's plea offer of a 17-year determinate term, rather than proceeding to trial. We will resolve Bivens's claim in a separate order from this appeal.
V. Remand for Resentencing is Required
Bivens claims his case should be remanded back to the trial court for correction of the sentence imposed, a portion of which is unauthorized. The People concede portions of the sentence imposed are unauthorized but assert that remand is not necessary because the trial court made clear it would not find any lesser sentence appropriate. We conclude that portions of Bivens's sentence were unauthorized, and that remand for resentencing is required.
A. Background
During oral pronouncement of judgment, the trial court declined to strike Bivens's prior strike, explaining, "There is no basis on which to strike the strike prior. It's not remote in time. [Bivens has] been in and out of prison since that conviction, and circumstances of the case don't warrant that." The court subsequently sentenced Bivens to an aggregate prison term of seven years to life, plus 23 years.
• As to count 1, the premediated attempted murder of Parker (§§ 187, subd. (a), 664, subd. (a)), Bivens was sentenced to life with the possibility of parole. Although the court declined to strike Bivens's prior strike for sentencing purposes, it failed to double the sentence on count 1, as is required by sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1). The court sentenced Bivens to a determinate term of 10 years for the firearm use enhancement and a determinate term of three years for the infliction of great bodily injury (§ 12022.7).
The information charged Bivens with an enhancement for personally and intentionally discharging a firearm which proximately caused great bodily injury or death pursuant to section 12022.53, subdivision (d). The sentence for the personal and intentional discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) carries a prison term of 25 years to life. At sentencing, the trial court imposed a determinate prison term of 10 years under section 12022.53, subdivision (b), which was not separately charged and found true by the jury.
• As to count 3, shooting at an occupied motor vehicle (§ 246), the court imposed a determinate term of 10 years, stayed pursuant to section 654. The court did not address the firearm enhancement (§ 12022.53, subd. (d)) or the great bodily injury enhancement (§ 12022.7, subd. (a)) applied to this count.
• As to count 4, assault with a firearm against Parker (§ 245, subd. (a)(2)), the court imposed a determinate term of six years stayed pursuant to section 654. The court did not address the firearm enhancement (§ 12022.5, subd. (a)) or the great bodily injury enhancement (§ 12022.7, subd. (a)) applied to this count.
• As to count 5, assault with a firearm against Cole (§ 245, subd. (a)(2)), the court imposed the middle term of six years. With respect to the firearm enhancement (§ 12022.5, subd. (a)), the trial court imposed a determinate term of four years.
• As to count 6, possession of a firearm by a felon (§ 29800, subd. (a)(1)), the court imposed the middle term of four years to run concurrently.
During sentencing, the trial court observed the jury had made the following findings: (1) Bivens had personally and intentionally discharged a firearm in the commission of the underlying crime; (2) the personal and intentional discharge of the firearm caused great bodily injury to Parker; and (3) during the commission of the underlying crime, Bivens had personally used a firearm.
Based upon these findings, the court concluded it had discretion to impose a lesser uncharged enhancement under section 12022.53 than what was charged in the information. The court intended to exercise its discretion, stating:
"Is it in the interest of justice to do that given the nature of the crime and Mr. Bivens'[s] history? His history is certainly littered with violent crimes as a juvenile and as an adult, weapons crimes, multiple violations of parole. When I say violent crimes, it's not entirely accurate. He has an attempted 422, which is an attempted serious felony, not a violent felony, but that is a strike prior for sentencing purposes. There is no basis on which to strike the strike prior. It's not remote in time. He's been in and out of prison since that conviction, and circumstances of the case don't warrant that. I certainly would not strike all weapon enhancements given the violent nature of the crime and the fact that this driver could indeed have been shot and killed in this case, and that was the apparent intent of Mr. Bivens when he fired into the vehicle. I do believe, however, I could impose a lesser enhancement that would still hold him accountable for his conduct and that would give him some reasonable prospects at parole during his lifetime."
The court added:
"I believe that the 22 determinate years followed by a 25 year to life sentence followed by an indeterminate life with possibility of parole sentence is excessive given Mr. Bivens'[s] age, and given that this was one brief, brash - although premeditated - act. So I will be exercising discretion. I will not be exercising the discretion requested by Counsel because I believe that gives him too much by way of relief for these enhancement allegations. But I will be imposing a lesser enhancement that gives him a reasonable prospect at parole during his lifetime. The consecutive sentencing for the two separate victims, um, already brings the determinate term to a rather significant level. His strike prior also enhances it to a significant level, and I believe he can be held accountable by a lesser sentence."
The trial court imposed an aggregate determinate term of 23 years in state prison, with an indeterminate term of life with the possibility of parole. The court stated:
"With the credits that he's received, 934 days, I believe he'll be eligible for consideration of parole after serving the determinate terms. 85 percent of the determinate term would be roughly 17 years, plus the life term with eligibility after 7 years. So assuming good time, work time and proper behavior while at CDC, at about age 60, 61, he should be eligible for consideration of release on parole. I do not believe any lesser sentence is appropriate on the facts as I heard them in this case and given the verdicts as returned by this jury.
B. Analysis
1. The Indeterminate Term Imposed on Count 1
"A failure to double subordinate terms when a prior violent or serious felony conviction allegation has been found to be true is a jurisdictional error which can be raised for the first time on appeal." (People v. Morales (2003) 106 Cal.App.4th 445, 454-455.) Here, the parties agree that the trial court failed to double the indeterminate term on count 1, even though the court declined to strike the strike, and provided a statement of reasons supporting its decision. However, the parties disagree as to the necessity of remand.
Bivens contends remand is appropriate because the trial court's act of declining to strike the strike but imposition of a non-strike sentence of life with the possibility of parole on count 1 indicates that the court's decision "was not fully informed." The People argue the trial court clearly indicated that Bivens should be parole eligible within 30 years and suggest that such a sentence can be achieved by reconfiguring other portions of Bivens's sentence.
We reject Bivens's contention that the trial court's decision not to strike his prior strike was not fully informed. However, we conclude remand for resentencing is warranted so that the trial court can make an informed sentencing decision based upon all available sentencing options at the time remittitur issues. This includes any new laws made effective on January 1, 2022.
2. The Section 12022.53, Subdivision (b) Firearm Enhancements
As to count 1, the information alleged and the jury found true an enhancement for the personal and intentional discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). The verdict form did not refer to section 12022.53, subdivision (d) specifically. The sentence for the personal and intentional discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) is a prison term of 25 years to life.
The trial court imposed a determinate prison term of 10 years under section 12022.53, subdivision (b). However, this subdivision was not separately charged in the information and found true by the jury. The People contend the trial court erred in this respect. While the manner in which the trial court substituted the section 12022.53, subdivision (d) enhancement for the lesser uncharged enhancement was erroneous, we conclude the court did not lack the authority to impose the 10-year enhancement.
In People v. Tirado (2022) 2 Cal.5th 688 (Tirado), our Supreme Court held that "When an accusatory pleading alleges and the jury finds true the facts supporting a section 12022.53(d) enhancement, and the court determines that the section 12022.53(d) enhancement should be struck or dismissed under section 12022.53(h), the court may, under section 12022.53(j), impose an enhancement under section 12022.53(b) or (c)."(Id. at p. 700.) The court has the authority to substitute a different unalleged enhancement under section 12022.53 even though "the prosecution did not specifically allege enhancements under section 12022.53(b) or (c), … [and] the section 12022.53(d) enhancement was not legally or factually inapplicable." (Id. at p. 697.)
Section 12022.53, subdivision (j) provides that for the penalties in section 12022.53 to apply, the existence of any fact required by section 12022.53, subdivisions (b), (c), or (d) must be alleged in the accusatory pleading and admitted or found true.
Here, in connection with count 1, the information alleged that Bivens "personally and intentionally discharged a firearm which proximately caused great bodily injury or death to Matthew Parker within the meaning of Penal Code section 12022.53(d)." Tirado explained, "[t]his charging language referred to facts necessary to prove allegations under section 12022.53(b) and (c) as well. Firing a gun as alleged would meet the use requirement of section 12022.53(b) and the discharge element of section 12022.53(c). Likewise, the jury's findings established that these same facts were proven true." (Tirado, supra, 12 Cal.5th at p. 700.) Thus, the trial court's imposition of a 10-year enhancement under section 12022.53, subdivision (b), instead of the 25-year enhancement under subdivision (d), was not unauthorized. However, the trial court erred by failing to first strike the greater enhancement and then impose the lesser enhancement.
Bivens further observes however that the jury made similar findings as to count 3, his conviction for shooting at an occupied motor vehicle (§ 246). The trial court did not address the enhancements applied to count 3 at sentencing, presumably because the sentence on count 3 was stayed pursuant to section 654.
Bivens observes that the trial court failed to address any of the enhancements applied to counts 3 and 4, which were stayed pursuant to section 654. In section V.B.1, ante, we concluded that resentencing is required. As a result, the trial court may address these enhancements on remand.
While the Tirado court approved substitution of an uncharged enhancement under section 12022.53, when an accusatory pleading alleges and the jury finds true the facts supporting a section 12022.53, subdivision (d) enhancement, it cautioned that this general rule applies "when a true finding under section 12022.53(d) necessarily includes a true finding under section 12022.53(b) or (c)." (Tirado, supra, 12 Cal.5th at p. 700, fn. 12.) The court added, "[t]hat would not be the case if a section 12022.53(d) enhancement were added to a charge under section 246" because that offense is "not 'specified in subdivision (a),' as required for imposition of an enhancement under section 12022.53(b) or (c)."
On remand, our Supreme Court's decision will provide appropriate guidance to the trial court as to its available sentencing options and how to proceed. We call attention to the court's statement only to urge the lower court to clarify its sentencing decision as to all of the firearm enhancements upon the record.
3. The Failure to Impose or Strike the Section 667.5, Subdivision (b) Prior Prison Term Enhancements
Bivens was sentenced on April 24, 2019. At the time of sentencing, the trial court was required to impose a one-year prison term enhancement for each prior prison term Bivens had served. (See former § 667.5, subd. (b).) Bivens had served four terms. The trial court failed to impose any additional one-year terms for these enhancements, and therefore erred in so doing. Under former section 667.5, when an allegation based on section 667.5, subdivision (b) is found to be true, the trial court must either impose the additional prison term or strike the enhancement. (People v. Langston (2004) 33 Cal.4th 1237, 1241.)
Effective January 1, 2020, while Bivens's case was pending on appeal, Senate Bill No. 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b) to limit the application of prior prison term enhancements to only prior prison terms that were served for sexually violent offenses as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1.) That amendment applies retroactively to all cases not yet final by Senate Bill No. 136's effective date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342, citing In re Estrada (1965) 63 Cal.2d 740, 746.) As none of Bivens's prior convictions were for sexually violent offenses enumerated within Welfare and Institutions Code section 6600, subdivision (b), the enhancements cannot be imposed at resentencing.
VI. Correction of the Abstract of Judgment and Minute Order
The parties agree that the abstract of judgment and minute order from the April 24, 2019 sentencing hearing must be corrected. In light of our conclusion that resentencing is required, this issue is moot.
VII. Assembly Bill No. 518
On October 1, 2021, after briefing in this appeal was complete, the Governor signed Assembly Bill No. 518 into law. Effective January 1, 2022, trial courts now have the discretion to choose which sentence to impose when a defendant has been convicted under two different Penal Code provisions for the same act. (§ 654, subd. (a); see Stats. 2021, ch. 441, § 1.) Prior to this change, section 654 required the trial court to impose the sentence under the provision of law carrying the longest term of punishment.
The People concede that Assembly Bill No. 518 applies retroactively to Bivens's case, which has not yet reached finality. However, the People contend remand would be futile because the trial court indicated that a lesser sentence would not have been appropriate.
Although the trial court made statements supporting the conclusion that, in its view, an appropriate sentence would allow Bivens to become parole eligible when he turns "60, [or] 61 years old," the manner in which the court arrives at such a sentence and the precise prison term it finds just is more appropriately delegated to the lower court. Moreover, upon this record, we are unable to conclude that remand would be futile, particularly in light of the fact that at resentencing, the court is entitled to consider evidence of Bivens's "good and bad postsentencing conduct in prison." (People v. Yanaga (2020) 58 Cal.App.5th 619, 627-628.) We therefore reject the People's invitation to correct Bivens's sentence on appeal.
DISPOSITION
The sentence is reversed and the case is remanded back to the trial court for resentencing. Following resentencing, the clerk of the court shall prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment of conviction is affirmed.
WE CONCUR: POOCHIGIAN, Acting P. J., SNAUFFER, J.