Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Fresno County. James L. Quaschnick, Judge. (Retired Judge of the Fresno S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super. Ct. No. F02906131-8.
Nuttall & Coleman, Roger T. Nuttall, Mark W. Coleman and Gregory W. Fox for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Levy, J.
INTRODUCTION
Following a court trial, appellant Stephen Ray Cox was convicted in count 1 of making criminal threats, in count 2 of assaulting his wife, Carla Cox, with a firearm and in count 3 of assaulting a peace officer, Hank Ramirez, with a firearm. (Pen. Code, §§ 422; 245, subd. (b); 245, subd. (d)(2); 12021, subd. (a)(1).) The court found true section 12022.5 firearm use enhancement allegations that were attached to counts 1 and 2 and section 12022.53, subdivisions (b) and (c), firearm use enhancement allegations that were attached to count 3. (§§ 12022.5, subd. (a)(1); 12022.53, subds. (b) & (c).) Appellant pled no contest to the crime of illegally possessing a firearm (count 4).
Unless otherwise specified, all statutory references are to the Penal Code.
Appellant was sentenced to an aggregate term of 25 years’ imprisonment, calculated as the mitigated term of five years for count 3 plus a consecutive 20-year term for the section 12022.53, subdivision (c) enhancement. Concurrent terms of eight months each were imposed for counts 1, 2 and 4 and for a single count of possessing a controlled substance from a prior case. Two concurrent terms of one year and four months were imposed for the section 12022.5 enhancements. A 10-year term was imposed and stayed for the section 12022.53, subdivision (b), enhancement.
Appellant challenges the sufficiency of the evidence supporting the assault convictions. Also, he contends that the prosecutor committed prejudicial misconduct during his rebuttal closing argument. Finally, he argues that the court erred by concluding that it lacked discretion to dismiss the section 12022.53 enhancements in the interests of justice. All of these arguments lack merit. We will affirm.
FACTS
Around 9:00 p.m. on September 30, 2002, Fresno County Sheriff’s Department deputies were dispatched to an address in Caruthers after Carla telephoned for emergency assistance. The buildings located at this address included a shed, a trailer and a house.
Carla told Deputy Donna Davis that she and appellant began arguing earlier that day when they were visiting their daughter in Huntington Beach. Carla said that appellant told her daughter that she “better say good-bye to [Carla] because this is the last time you’re going to see her.” On the drive home, appellant punched Carla in the shoulder. They continued arguing after arriving home. Carla said that appellant “pointed a gun at her, told her he was going to kill her and then he lifted the gun up and fired into the ceiling” of their trailer. Carla fled and telephoned for emergency assistance. Carla did not tell Davis that she armed herself with a knife.
Carla testified that she did not recall making these statements. She also testified that she armed herself with a knife while arguing with appellant.
The deputies formed a perimeter around the property. One of the deputies spotted appellant standing outside the shed. Sergeant Hank Ramirez identified himself to appellant and told him that they wanted to speak with him. He asked appellant to come out without weapons so they could talk.
Appellant entered the shed. When appellant came back outside he was holding a rifle. He went back into the shed. When he came outside again, he was holding a handgun in one hand and the rifle in the other hand. The rifle was angled toward the ground. Appellant swept the rifle across his body in a panning motion. During the course of moving the rifle, it was pointed in the direction of a nearby patrol vehicle and several of the deputies.
Appellant again entered the shed and then emerged shortly thereafter. He pointed the handgun east toward a vineyard and fired it. He started walking toward the shed and then fired one of the firearms toward Sergeant Ramirez. Sergeant Ramirez saw something strike the gravel to his left and heard popping sounds. He realized that appellant was shooting at him.
The deputies returned fire. Appellant went back inside the shed. He fired a few more rounds. Deputies saw sparks fly from the asphalt, just to the left of Sergeant Ramirez.
Appellant taunted the deputies. He called them cowards and challenged them “to come and get him.” He said, “I know I’m going to hell tonight, but someone’s coming with me.”
Around this time, a SWAT team arrived with an armored vehicle. After a SWAT team member threw a flash-bang grenade into the shed, appellant surrendered peacefully.
Appellant testified in his own defense. He said that he argued with Carla and they were mutually physically combative. After Carla armed herself with a knife and began slashing at him, he got a gun. He did not remember pointing it at Carla. He pointed it at the ceiling.
Appellant testified that he wanted the police to shoot him to punish Carla and because he was depressed. He thought that if he showed the gun to the police they would shoot him. He is a skilled marksman and easily could have shot the deputies if he wanted to do so. He did not intend to point the rifle at anyone. He admitted that the last time he exited the shed he pointed the handgun to the east and fired twice. The police returned fire. He fired a third shot into the street, believing no one was there. He never tried to shoot anyone. After he retreated into the shed, he might have fired one or two more shots toward the open field. Appellant agreed that shooting a gun in an area where other people are nearby could result in injury to one of them. However, he did not believe the officers were in any actual danger because he fired his gun away from their positions.
Dr. Stephan Miles Estner, a forensic psychiatrist, testified that appellant suffers from depression and appellant’s behavior fit the pattern of “suicide by cop.” Appellant tried to put himself at risk and did not mean to hurt the officers.
DISCUSSION
I. The assault counts are supported by substantial evidence.
Appellant challenges the sufficiency of the evidence supporting the two assault counts. As will be explained, there is ample evidence supporting these convictions.
The applicable standard of review is established:
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’” [Citations].” (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
The crime of assault is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) Appellant has mistakenly equated present ability to commit a violent injury with specific intent to injure another. The crime of assault does not require a specific intent to cause another injury or even a subjective awareness of the risk that an injury might result from the defendant’s conduct. In People v. Williams (2001) 26 Cal.4th 779, our Supreme Court determined the mental state that is necessary to commit this crime:
“Accordingly, we hold that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams, supra, 26 Cal.4th at p. 790, emphasis added.)
It is not necessary to point a firearm directly at the victim in order to commit an assault with a firearm. (People v. Raviart (2001) 93 Cal.App.4th 258, 263 (Raviart).) The act of drawing a gun into a position in which it could be used when a person is within its range is sufficient to support an assault conviction. (Id. at p. 266.)
In People v. Lathus (1973) 35 Cal.App.3d 466, this court upheld an assault with a firearm conviction where the defendant, who was a passenger in a moving vehicle, fired at a stalled vehicle. One of the bullets struck a person standing outside the stalled vehicle. The defendant claimed he did not know anyone was near the vehicle and therefore lacked knowledge that he was endangering anyone. This contention was rejected. We explained: “[W]hen an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the act transcends recklessness, and the intent to commit the battery is presumed; the law cannot tolerate a deliberate and conscious disregard of human safety.” (Id. at p. 470.)
In People v. Thompson (1949) 93 Cal.App.2d 780, evidence showing that defendant pointed a revolver toward two sheriff deputies, aiming the gun between them while pointing the gun downward, was sufficient to support an assault with a firearm conviction because the gun “was in a position to be used instantly.” (Id. at p. 782.)
In this case, we agree with respondent that “the evidence more than amply supports the court’s determination, as the trier of fact, that appellant committed an assault with a firearm on his wife and on Sergeant Ramirez.”
Davis testified that Carla told her on the night of the incident that appellant threatened to kill her earlier that day and that he struck her. Davis also testified that Carla said appellant pointed a gun at her before he fired it into the ceiling of the trailer. There were two bullet holes in the ceiling of the trailer. A trier of fact reasonably could conclude from this evidence that appellant pointed a gun at Carla and fired at the ceiling of the trailer. This constitutes an assault with a firearm. Thus, count 2 is supported by substantial evidence.
Davis testified that appellant fired the rifle at Ramirez. After Ramirez saw something strike the gravel to his left and heard popping sounds, he concluded that appellant was shooting at him. After appellant went back into the shed, he fired additional rounds. Deputies saw sparks fly from the asphalt, just to the left of Ramirez. Ramirez saw a bullet strike the ground not far from his position.
Appellant’s reliance on the bullet trajectory evidence is not persuasive; the exact proximity of the bullets in relation to the deputies is not determinative. Appellant’s claim that he was an expert marksman and that he would have shot Carla and a deputy if he intended to do so is equally unpersuasive. Appellant erroneously equates a specific intent to kill with present ability to cause injury. Appellant’s acts of pointing a gun at Carla and firing a gun into the ceiling of the trailer in her presence and his acts of panning the rifle across his body and of firing a gun in the general direction of Ramirez demonstrate a conscious disregard for the safety of others.
Finally, appellant’s “suicide by cop” defense does not negate the existence of substantial evidence proving the assault counts. As demonstrated by the verdicts, the court rejected this defense. Also, respondent persuasively argues that the “suicide by cop” theory is contradicted by evidence that appellant sought the safety of the shed after the sheriff deputies returned fire and he peacefully surrendered after a flash-bang grenade was thrown into the shed. This behavior is inconsistent with the “suicide by cop” defense.
In sum, the record amply establishes that appellant possessed the present ability to cause injury and that he acted in conscious disregard for the safety of others when he pointed the rifle at Carla and then shot into the ceiling of the trailer and when he panned the rifle across his body and then fired in the direction of Ramirez. Accordingly, we conclude that counts 2 and 3 are supported by substantial evidence.
II. The new trial motion was properly denied.
A. Facts
Appellant waived a jury and was tried by the court. In relevant part, the reporter’s transcript of the prosecutor’s rebuttal closing argument reflects the following:
“So when does assault occur, Your Honor? I’ve got this .9 millimeter in my hand and I’m at the farthest end of the court and I’m pointing it to my right, but I’m facing the bench. Is it -- do you -- you know, would you feel -- of course this is rhetorical -- assaulted at this point? And I rotated it over a little more and I’m confronting you, do you feel assaulted now perhaps? How about a little bit more? Are you starting to feel a little more assaulted?” (Emphasis added.)
Defense counsel objected to “that line of argument. Sergeant Ramirez is the only victim designated here and it’s not a subjective thought on whether you or he would feel assaulted.” The objection was overruled. There is no proof in the record that the prosecutor actually picked up the handgun and panned it toward the court, other than the portion of the prosecutor’s rebuttal closing argument that is quoted above.
Appellant filed a new trial motion in which he argued, in relevant part, that the prosecutor committed misconduct during his rebuttal closing argument by picking up the handgun and panning it toward the court. In denying the motion, the court affirmatively declared that he had no recollection of this occurrence. The judge stated:
“… [Q]uite frankly I don’t remember the incident. I do not remember the prosecutor pointing a gun at me and asking me if I felt assaulted. So obviously it was not an issue that -- there’s no issue raised in my mind and it was not used in any way in my decision. So I’m going to deny the new trial based on prosecutor[ial] misconduct.” (Emphasis added.)
B. Appellant’s argument fails for lack of prejudice.
Appellant argues the trial court erred by denying the new trial motion on the basis of prosecutorial misconduct. As will be explained, it is unnecessary to determine whether the prosecutor actually picked up the handgun and panned it toward the bench because, even assuming this event occurred, the record affirmatively dispels any inference of prejudice.
“…‘“[The] applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor's ... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citation.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.] … [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”’” (People v. Ayala (2000) 23 Cal.4th 225, 283-284.)
Since appellant was tried by the court, the relevant determination is whether there is a reasonable likelihood that the judge construed or applied the prosecutor’s rebuttal closing argument in an objectionable fashion. We answer this question in the negative. In ruling on the new trial motion, the judge unequivocally declared, “I do not remember the prosecutor pointing a gun at me and asking me if I felt assaulted.” He also said that this alleged conduct “was not used in any way in my decision.” Thus, the judge affirmatively dispelled any inference of prejudice that might have arisen from the prosecutor’s rebuttal argument. As explained in People v. Scott (1997) 15 Cal.4th 1188, even if there is a timely objection to claimed prosecutorial misconduct during closing arguments, when there is no jury to mislead, it is “very unlikely the misconduct would have had a significant effect on a trial judge.” (Id. at p. 1217.) Since the record affirmatively establishes that the judge was not affected by the claimed prosecutorial misconduct, appellant was not entitled to a new trial on this ground.
III. The court lacked discretion to strike the firearm enhancements.
Finally, appellant argues the court erred by determining that it lacked authority to strike the firearm enhancements in the interests of justice pursuant to section 1385. The court ruled that section 12022.53, subdivision (h), prohibited it from “taking [section] 1385 into consideration,” and that it “shall not strike an allegation under this section.” The court stated, “I’ve researched it and I find that I can’t do it. It would be contrary to the law and it would be reversed.” The trial court was correct.
“‘The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations].’” (People v. Thomas (1992) 4 Cal.4th 206, 210 (Thomas).) The provisions of a statute must be “construed according to the fair import of their terms, with a view to effect its objects and to promote justice.” (§ 4.) Statutes are not construed in isolation but are read “‘“with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.” [Citation.]’” (Thomas, supra, 4 Cal.4th at p. 210.)
Subdivision (h) of section 12022.53 provides: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”
Section 12022.5, subdivision (c), is identical. It provides that “[n]otwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”
It is already established that a trial court does not have discretion pursuant to section 1385 to strike a section 12022.5 firearm enhancement. Subdivision (c) of section 12022.5 was added in 2002. This amendment was intended be declaratory of existing law as contained in Thomas, supra, 4 Cal.4th 206 and People v. Ledesma (1997) 16 Cal.4th 90 (Ledesma). (Stats. 2002, ch. 126, § 13.) Thomas held that the trial court does not have discretion pursuant to section 1385 to strike the firearm use enhancement under section 12022.5. (Thomas, supra, 4 Cal.4th at pp. 213-214.) Ledesma held that section 12022.5 is mandatory and does not by its terms grant the trial court discretion whether or not to impose the enhancement. (Ledesma, supra, 16 Cal.4th at pp. 94-95.)
We conclude that it also is impermissible to strike a section 12022.53 firearm enhancement in the interests of justice. As demonstrated above, the Legislature may eliminate a trial court’s discretion under section 1385 to strike punishments in the interests of justice. By its plain language, subdivision (h) of section 12022.53 prohibits striking the enhancement under section 1385. The specific inclusion of section 1385 indicates the Legislature intended by subdivision (h) to prevent the trial court from exercising its discretion to dismiss or strike the enhancement. Our Supreme Court has declared that the trial court’s discretion to strike charges, findings and enhancements pursuant to section 1385 remains intact, unless there is a specific indication by the Legislature to the contrary. (People v. Williams (1981) 30 Cal.3d 470, 483.) The plain language contained in subdivision (h) constitutes such a specific indication.
Our conclusion that trial courts do not possess discretion pursuant to section 1385 to strike section 12022.53 enhancements is strengthened by People v. Thomas (2005) 35 Cal.4th 635. In that case, our Supreme Court determined that trial courts do not have discretionary authority to order a disposition under the juvenile court laws in a case that the prosecution filed directly in criminal court. In relevant part, the high court wrote:
“Penal Code section 1385 allows a trial court, in the interests of justice, to strike individual charges and allegations in a criminal action. [Citations.] It does not permit the court to disregard statutory limits on sentencing for charges and allegations that have not been stricken. [Citation]. Moreover, Penal Code section 12022.53, subdivision (h), expressly forbids the trial court from striking an allegation of personal firearm use.” (People v. Thomas, supra, 35 Cal.4th at p. 644, emphasis added.)
Appellant attempts to analogize subdivision (c) of section 12022.5 and subdivision (h) of section 12022.53 to the Three Strikes Law. In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the High Court concluded that the words “‘[n]otwithstanding any other law’” in section 667, subdivision (f)(1), do not preclude a court from dismissing a prior strike pursuant to section 1385. (Id. at p. 524.) The analogy fails because the language used in the Three Strikes Law is not comparable to that used in sections 12022.5 and 12022.53.
The statutory language in subdivision (f)(1) of section 667 was interpreted within the context of the entire Three Strikes Law. This includes subdivision (f)(2) of section 667, which authorizes the People to move to strike the prior conviction pursuant to section 1385. Furthermore, the Three Strikes Law states that its provisions “shall be applied in every case in which a defendant has a prior felony conviction ….” (§ 667, subd. (f)(1).) The command that the Three Strikes Law shall be applied “‘[n]otwithstanding any other law’ -- cannot literally be followed without reference to and, if appropriate, action ‘pursuant to,’ section 1385.” (Romero, supra, 13 Cal.4th at p. 524.)
In contrast to the Three Strikes Law, sections 12022.53 and 12022.5 provide that persons falling within the provisions of the enhancements shall be “punished” by the applicable additional term of imprisonment. (§§ 12022.53, subd. (b); 12022.5, subd. (a).) The use of the verb “punish” instead of the verb “apply” is significant. Punishment under sections 12022.53 and 12022.5 is inconsistent with exercise of discretion under section 1385 to strike the enhancement allegation. The use of the verb “punish” evidences a determination by the Legislature that section 1385 shall not be available. This conclusion is further reinforced by the specific reference to section 1385 in subdivision (c) of section 12022.5 and subdivision (h) of section 12022.53.
Appellant cites People v. Yeoman (2003) 31 Cal.4th 93 (Yeoman) to support its position. Appellant’s reliance on Yeoman is misplaced. Yeoman was a death penalty case involving crimes that occurred in 1988, four years prior to the 2002 amendment of section 12022.5 that added subdivision (c). Moreover, the Yeoman court did not address the propriety or legality of striking the firearm enhancements. It merely recited in the procedural history of the case that the trial courts struck the section 12022.5 firearm enhancements. (Id. at p. 104.) Cases are not authority for propositions that are not considered in the case. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)
For all these reasons, we conclude that the trial court correctly determined that it did not possess discretion under section 1385 to strike the firearm enhancements.
Respondent writes in a single-sentence footnote (located within the statement of the case), that it believes the section 12022.53, subdivision (b), enhancement should be stricken. Having failed to develop this belief into a legal argument accompanied by citation to authority, we summarily dismiss the point as undeveloped. “Points ‘perfunctorily asserted without argument in support’ are not properly raised. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 206; see also People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)
DISPOSITION
The judgments are affirmed.
WE CONCUR: Harris, Acting P.J., Cornell, J.
To avoid confusion, Carla Cox will be referenced by her first name; no disrespect is intended or implied.