Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F09900150, Arlan L. Harrell, Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Dawson, J., and Detjen, J.
A jury convicted appellant, Pedro Gilberto Esparza, of attempted murder (Pen. Code, §§ 664/187, subd. (a)) and found true allegations that he personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and a great bodily injury enhancement (§ 12022.7, subd. (a)).
All further statutory references are to the Penal Code.
On December 2, 2009, the court sentenced Esparza to the middle term of seven years for his attempted murder conviction, an indeterminate term of 25 years to life on his firearm enhancement, and a stayed three-year term on his great bodily injury enhancement.
On appeal, Esparza contends: 1) the court committed sentencing error, and 2) he is entitled to an additional day of presentence custody credit. We will find merit to Esparza’s second contention. In all other respects, we will affirm.
FACTS
On January 2, 2009, Esparza and P.P. went to Arturo Ruiz’s house intending to trade a big screen TV for marijuana. Ruiz told them he did not have any marijuana and then went into a bedroom. When Ruiz came out, Esparza pulled out a firearm and began shooting at him. Esparza fired three times hitting Ruiz in the abdomen, upper back, and left wrist. Esparza attempted to continue shooting at Ruiz, but his gun jammed or ran out of ammunition. Esparza and P.P. eventually fled from the residence.
Esparza’s probation report concluded there was one circumstance in mitigation, that Esparza did not have a prior record (California Rules of Court, rule 4.423(b)(1)). It also concluded there were two circumstances in aggravation: 1) Esparza’s crime involved great violence, great bodily injury, and other facts disclosing a high degree of cruelty, viciousness, or callousness (rule 4.421(a)(1)); and 2) Esparza engaged in conduct which indicated that he was a serious danger to society (rule 4.421(b)(1)).
All further rule references are to the California Rules of Court.
At Esparza’s sentencing hearing, the court stated:
“The Court has read and considered the probation report. It is the Court’s intent as a tentative ruling to impose, for the violation of … section 664/187(a), attempted second-degree murder, the middle term of 7 years. The Court is selecting that term, or intends to select that term based upon the Court’s understanding of the circumstance of this offense, which I will detail more later. Also, the Court is prepared to impose the enhancement, enhance that 7-year term pursuant to … section 12022.53(d) by an indeterminate term of 25 years to life. The court also intends to order pursuant to … section 12022.7 a 3-year term for the enhancement which was found true by the jurors but would stay that 3-year term.”
After hearing argument from defense counsel, the court stated:
“All right. Again, the Court has read and considered the probation report in this case which was dated November 4th. First, the Court notes that the defendant is statutorily ineligible for a grant of probation pursuant to … section 1203.06(a)(1)(A) and pursuant to … section 12022.53(g). The first code section prohibits probation in a case of a person who is convicted of attempted murder. The second code section prohibits probation for a person who personally and intentionally discharges a firearm resulting in great bodily injury.
“The Court notes that the defendant has no criminal history based on its reading of the probation report. However, based upon the evidence in this case and the testimony which this Court heard, the Court finds that the attack here was completely unprovoked, very cold-blooded, and only ceased when the firearm jammed or apparently jammed or misfired, that three shots were fired, and that the victim in this case was struck three times. It is based upon those facts in this case that the Court believes the middle term is appropriate and those aggravating factors outweigh the mitigating factor of his having no criminal history. And it is on that basis the Court is selecting the middle term of 7 years for the conviction of … section 664/187(a).
“Pursuant to the Court’s indicated, the Court will enhance that term of 7 years by an indeterminate term of 25 years to life pursuant to … section 12022.53(d). The Court has no discretion on that issue, as [defense counsel] noted.
“As to the enhancement which was also found true by the jurors under 12022.7, the Court must impose the 3-year term, however, that term will be stayed pursuant to law. For a total commitment in this case of 7 years determinate, followed by 25 years to life indeterminate.
“The defendant has time credits, according to the Court’s calculations, totaling 378 days, 329 days actual, 49 days good time/work time. And the calculation was determined pursuant to … section 2933.1, which does limit the defendant’s time credits.” (Italics added.)
After finishing its sentencing comments, the court stated, “Either counsel wish to be heard further?”
Both counsel responded that they did not.
DISCUSSION
The Sentencing Issue
Respondent contends that Esparza forfeited his right, on appeal, to challenge the court’s reliance on these aggravating circumstances by his failure to object in the trial court. Esparza contends he did not have a meaningful opportunity to object because it is not reasonable to expect defense counsel to argue with the court after judgment had been pronounced. We agree with respondent. Alternatively, we will conclude that the court did not abuse its discretion when it imposed the middle term.
“In [People v. Scott (1994) 9 Cal.4th 331], [the Supreme Court] prospectively announced a new rule: A party in a criminal case may not, on appeal, raise ‘claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ if the party did not object to the sentence at trial. [Citation.] The rule applies to ‘cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons’ [citation], but the rule does not apply when the sentence is legally unauthorized [citation]. [¶] … [¶] … Scott went on to say: ‘[T]here must be a meaningful opportunity to object to the kinds of claims otherwise deemed waived by today’s decision.’ [Citation.] ‘This opportunity can occur, ’ Scott observed, ‘only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices.’ [Citation.]” (People v. Gonzalez (2003) 31 Cal.4th 745, 751 (Gonzalez).) “Scott held that the parties need only be advised of the trial court’s intended sentence ‘during the course of the sentencing hearing itself....’ [Citation.] [¶] As previously explained, the Scott rule applies when the trial court ‘clearly apprise[s]’ the parties ‘of the sentence the court intends to impose and the reasons that support any discretionary choices’ [citation] and gives the parties a chance to seek ‘clarification or change’ [citation] by objecting to errors in the sentence.” (Gonzalez, supra, 31 Cal.4th at p. 752, italics added.)
In Gonzalez, the trial court heard argument from the parties before sentencing two defendants to the upper term on their convictions for carjacking and imposing a firearm enhancement. The court selected the upper term because the defendants were armed when they committed their carjacking offenses. After sentence was pronounced, the defendants objected to the court’s restitution order contending that it related to loss for a crime that they were neither charged with, nor convicted of committing. They did not, however, object to the trial court’s reliance on the fact that they were armed to impose the upper term on their carjacking convictions and an enhancement. (Gonzalez, supra, 31 Cal.4th at p. 750.) On appeal, the defendants argued that the court improperly relied on the fact they were armed to impose the upper term and an arming enhancement. They also cited two additional reasons for challenging the court’s restitution order. (Ibid.)
The Supreme Court held that the defendants forfeited their right to raise these challenges on appeal by their failure to object on these grounds in the trial court. In so holding, the court found that Scott’s forfeiture doctrine applied because the defendants had a meaningful opportunity to object to the court’s statement of reasons, notwithstanding that it occurred after the court pronounced sentence. (Gonzalez, supra, 31 Cal.4th at p. 755.)
Here, after sentencing Esparza and stating its reasons for imposing the middle term, the trial court expressly invited comment on the sentence from counsel. Thus, the instant case provides a more compelling rationale than Gonzalez for finding that defense counsel had a meaningful opportunity to object to the court’s sentence. Esparza’s counsel, however, did not voice any objections. Accordingly, we conclude that Esparza forfeited his right to challenge the aggravating circumstances the trial court relied on to impose the middle term.
Nevertheless, even if Esparza’s claim of sentencing error were properly before us, we would reject it. The trial court cited the following circumstances in sentencing Esparza to the middle term: 1) the shooting was cold-blooded in that it was unprovoked; 2) Esparza would have continued shooting the victim, but for the gun jamming or misfiring; 3) Esparza fired three shots at the victim; and 4) the victim was struck three times. Esparza contends the court abused its discretion by relying on these circumstances because they are facts inherent in the commission of his attempted murder offense and the enhancement for using a firearm and causing great bodily injury “and did not go beyond the minimum facts necessary to support the conviction and enhancement.”
“Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in ‘qualitative as well as quantitative terms’ [citation].... We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.” (People v. Oberreuter (1988) 204 Cal.App.3d 884, 887.)
“In order to determine whether error by the trial court [in making a sentencing choice] requires remanding for resentencing ‘the reviewing court must determine if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error.”’” (People v. Avalos (1984) 37 Cal.3d 216, 233.)
“An aggravating circumstance is a fact that makes the offense ‘distinctively worse than the ordinary.’ [Citations.] Aggravating circumstances include those listed in the sentencing rules, as well as any facts ‘statutorily declared to be circumstances in aggravation’ [citation] and any other facts that are ‘reasonably related to the decision being made.’ [Citation.]” (People v. Black (2007) 41 Cal.4th 799, 817.)
“‘[A]ggravation’ is by definition a circumstance above and beyond the essential constituents of a crime which increases its guilt or enormity or adds to its injurious consequences. [Citation.]” (People v. Davenport (1985) 41 Cal.3d 247, 289.)
To prove Esparza was guilty of attempted murder, the prosecutor had to prove: 1) Esparza took at least one direct ineffective step toward killing Ruiz; and 2) Esparza intended to kill Ruiz. (CALCRIM No. 600.) Moreover, to prove the arming enhancement pursuant to section 12022.53, subdivision (d), the prosecutor had to prove only that Esparza discharged a firearm and that he proximately caused great bodily injury or death. (People v. Bland (2002) 28 Cal.4th 313, 336.) Further, Esparza’s discharge of a single shot at Ruiz was sufficient to constitute the crime of attempted murder (People v. Perez (2010) 50 Cal.4th 222, 230, fn. 3 [“It is undisputed that defendant’s act of firing a single shot into the group constituted the “ineffectual act” required for attempted murder”]) and in conjunction with one of the injuries suffered by the victim, was also sufficient to prove the arming enhancement.
Here, the victim did nothing to precipitate an assault and had no reason to believe he would be assaulted by Esparza. Thus, the record supports the court’s finding of an aggravating circumstance based on the cold-blooded and unprovoked nature of the assault on Ruiz.
Further, the three shots fired at the victim exceeded the one shot required to find Esparza guilty of attempted murder. The court could also reasonably find that each shot increased the victim’s mental anguish because each one presented a separate, cumulative, probability of mortally wounding the victim. Thus, the record supports the court’s finding of an aggravating circumstance based on Esparza firing three shots at the victim.
Esparza’s conduct also greatly exceeded the minimum conduct necessary to sustain the arming enhancement pursuant to section 12022.53, subdivision (d), because Esparza hit the victim three times causing three serious injuries. Thus, the record supports the court’s finding of an aggravating circumstance based on the victim being struck three times. Further, since not every assault with a firearm results in injury to the victim, the court could reasonably find that this was a separate, distinct aggravating circumstance than the one based on Esparza firing three shots.
Moreover, the court could also reasonably find that Esparza’s failed attempt to fire more than three times at the victim was a separate circumstance that made Esparza’s conduct more egregious.
Esparza also contends that lack of provocation is the “significant difference between attempted murder and attempted voluntary manslaughter where the attempt is committed in the heat of passion in response to adequate provocation.” According to Esparza, since the jury did not find that he acted with a deliberate and premeditated intent to kill or with an actual belief in the need to use deadly force in self-defense, the jury must have relied on a lack of provocation to find him guilty of attempted second degree murder rather than attempted voluntary manslaughter. Esparza further posits that since the jury relied on lack of provocation to find him guilty of attempted second degree murder, it would be unfair to allow lack of provocation to be used as an aggravating circumstance. Esparza is wrong.
The jury was not asked to decide whether Esparza was guilty of the lesser included offense of attempted voluntary manslaughter on a theory that he acted in response to “adequate provocation.” Thus, there is no basis in the record for concluding that his conviction for attempted murder was somehow based on a lack of provocation by the victim and that this should somehow prevent the court from relying on the unprovoked nature of the attack as a circumstance in aggravation. Further, since lack of provocation is not an element of murder (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690), the court could have found Esparza guilty of attempted second degree murder even if the victim had engaged in some minor conduct that provoked him, e.g., calling Esparza names. Accordingly, we reject Esparza’s claim of sentencing error.
The jury instructions allowed the jury to convict Esparza of voluntary manslaughter on the theory that he acted in imperfect self-defense, but not on a theory that he acted on a “sudden quarrel or in the heat of passion.” (See CALCRIM Nos. 570, 571.)
Esparza’s Presentence Custody Credit
Esparza was in custody from the date of his arrest on January 7, 2009, through the date of his sentencing on December 2, 2009. The court awarded Esparza a total of 378 days of presentence custody credit, consisting of 329 days of presentence actual custody credit and 49 days of presentence conduct credit. Esparza contends that he is entitled to an additional day of presentence actual custody credit. Respondent concedes and we agree.
Esparza is entitled to credit for every day he spent in presentence actual custody (§ 2900.5, subd. (a)) and 15 percent presentence conduct credit (§ 2933.1). We have examined the record and agree with the parties that Esparza is entitled to an additional day of presentence actual custody credit.
DISPOSITION
Esparza’s award of presentence custody credit is increased from 378 days to 379 days, consisting of 330 days of presentence actual custody credit and 49 days of presentence conduct credit. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.