Opinion
H043844
12-22-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL FUENTES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS160462A)
Following a trial, the jury found defendant Daniel Fuentes guilty of personally discharging a firearm with gross negligence (Pen. Code, § 246.3, subd. (a)) (count 1), being a felon in possession of a firearm (§ 29800, subd. (a)(1)) (count 2), carrying a concealed firearm on his person (§ 25400, subd. (a)(2)) (count 3), and resisting an officer (§ 148, subd. (a)(1)) (count 4). With respect to count 3, the jury found true the penalty allegation that defendant had a loaded, concealable firearm for which he was not the registered owner within the meaning of section 25400, subdivision (c)(6), which made the offense punishable as felony.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant raises claims of ineffective assistance of counsel and instructional error. He also challenges the sufficiency of the evidence to support the penalty allegation on count three. We find no error and affirm the judgment.
Defendant also has filed a separate petition for a writ of habeas corpus (In re Fuentes, H044755), which we considered with this appeal. We resolve the petition by separate order.
I
Procedural History
On April 5 2016, an information was filed against defendant. It charged him with committing the following crimes on or about March 19, 2016: discharging a firearm with gross negligence, a felony (§ 246.3, subd. (a)) (count 1); being a felon in possession of a firearm, a felony (§ 29800, subd. (a)(1)) (count 2); carrying a concealed firearm on his person, a felony (§ 25400, subd. (a)(2)) (count 3); and resisting an officer, a misdemeanor (§ 148, subd. (a)(1) (count 4)). With respect to count 3, the information contained a penalty allegation pursuant to section 25400, subdivision (c)(6).
On June 13, 2016, the trial proceeded with counsel's opening statements and prosecution witnesses.
On June 16, 2016, the prosecution presented additional witnesses, and the People rested their case in chief. The court denied the defense's motion for a judgment of acquittal pursuant to section 1118.1. The defense rested. The court instructed the jury, and counsel gave their closing arguments.
On June 17, 2016, the jury returned their verdicts. The jury found defendant guilty of (1) personally discharging a firearm with gross negligence in violation of section 246.3, subdivision (a) (count 1), (2) being a felon in possession of a firearm in violation of section 29800, subdivision (a)(1) (count 2), (3) carrying a concealed firearm on his person in violation of section 25400, subdivision (a)(2) (count 3), and (4) resisting an officer in violation of section 148, subdivision (a)(1) (count 4). The jury further found, with respect to count 3, that defendant had a loaded, concealable firearm and was not its registered owner within the meaning of section 25400, subdivision (c)(6).
After the jury was excused, the trial court found defendant in violation of probation in a case ending in 944 based on the jury's verdicts. On the People's motion, the court dismissed case No. MS338124A.
On August 12, 2016, the court denied probation and sentenced defendant to a total term of three years eight months, which consisted of a three-year term on count 1, a consecutive, eight-month term on count 2, a concurrent three-year term on count 3, and a concurrent one-year term on count 4. The court stayed punishment on count 3 pursuant to section 654. The court credited defendant with 293 days in this case.
In the case ending in 944, defendant was ordered to serve one year in county jail with credit for 296 days.
Defendant filed a timely notice of appeal.
II
Evidence
On March 19, 2016, before 2:00 a.m., several loud gunshots were heard in Franco's, a nightclub located on Merritt Street in Castroville. The gunshots sounded as if they had been fired from inside the nightclub or the club's outside smoking area to the rear. People were running and hiding, and the scene was chaotic.
Juan Carlos, who had come to nightclub with his girlfriend, heard the first set of several gunshots while inside the nightclub. Juan Carlos saw a man run out of the nightclub through the front door and after some women; Juan Carlos followed.
A woman ran into the nightclub through the back door, and the front door was locked. The woman sat down and was shaking and crying. When the front door was opened to allow people to leave, the woman got up and pointed toward a man on the sidewalk. That man was wearing a black shirt and dark pants.
The man was screaming, and he seemed "pretty mad." He was crossing the street and going after some females, who were running and screaming. Juan Carlos heard the females yelling that the man had a gun. Juan Carlos saw the man, as he was running after the women, pull out a gun, point it up, and say, "Fucking Bitches." A few seconds later, Juan Carlos heard several shots. This second set of shots seemed to have been fired in an alley behind a restaurant called El Nayarita.
Following this second set of shots, Juan Carlos saw the same man emerge from behind El Nayarita, cross the street, and go up to one of the apartments over Franco's. The back of the apartments was near Franco's smoking area. The man came out the front of the apartment wearing a different shirt, which was gray.
Josh Knutsen, a deputy sheriff with the Monterey County's Sheriff's Office, was the first officer to arrive to the area of Franco's nightclub. While on patrol, at approximately 1:45 a.m. on March 19, 2016, Deputy Knutsen heard a radio alert concerning a 911 call. A second 911 call was received several minutes later. One of the 911 calls reported shots fired, possibly a man with a gun shooting in the nightclub.
When Deputy Knutsen arrived, the scene was chaotic; a lot of people were hurrying to leave. An individual flagged him down and said that the shooter had gone behind the Rabobank, which was next to Franco's. The deputy parked his patrol car, facing the wrong way, in front of the Rabobank. Others indicated that the suspect had gone to the general area behind the bank. Deputy Knutsen checked for the suspect in parking lot behind the Rabobank but did not find him.
Shaun Moran, another Monterey County deputy sheriff, was a fulltime "K-9" handler of a police dog named Argos, which was trained in suspect apprehension and narcotics detection. At approximately 1:45 a.m. on March 19, 2016, Deputy Moran responded to a call concerning an incident in Castroville. He was the second officer to arrive on the scene. He pulled in behind Deputy Knutsen's vehicle. A bystander flagged down Deputy Moran.
Deputy Knutsen and Deputy Moran met up outside Franco's. Deputy Moran had received information that the suspect had gone behind Franco's. Someone had indicated to Deputy Knutsen that the suspect might have gone upstairs to the apartments above Franco's.
Bryan Hoskins, a detective sergeant with the Monterey County Sheriff's Office, responded to a call of "shots fired" in Castroville at approximately 1:45 a.m. on March 19, 2016. Upon arriving at the scene, Sergeant Hoskins observed people walking quickly toward vehicles; the street was unusually clear. Based on radio traffic, which he was monitoring, the sergeant believed that other deputies had previously arrived on the scene.
Deputies Knutsen and Moran walked up Speegle Street and along the driveway leading to the back parking lot of Franco's. They saw Deputy Sheppy, who advised them that a man who matched the suspect's description was standing on the landing at the top of the stairs leading to the apartments above Franco's.
When the man saw the officers, he darted inside an apartment. The deputies went up the stairs and into the apartment complex. After reaching the landing, Officer Knutsen heard several doors slam and hurried footsteps heading toward Merritt Street. The deputies exited the front of the apartments over Franco's. They received information from bystanders that the suspect had moved across the street to Moreno's. Deputy Sheppy stayed on Merritt Street, and Deputies Knutsen and Moran crossed the street.
Deputies Knutsen and Moran met up with Sergeant Hoskins. Sergeant Hoskins covered Moreno Bar's front door, and the other two deputies went to the back. The sergeant had his service weapon out.
Sergeant Hoskins saw defendant, now in a collared, gray shirt with white pinstripes, at the corner of Preston Road and Merritt Street. He was talking to a man and a woman, who told defendant that the "cops were behind the business" and "he should run."
At trial, Sergeant Hoskins explained that Preston crosses Merritt Street. On the west side of Merritt Street, Preston was called Preston Road and, on east side of Merritt Street, Preston was called Preston Street.
Sergeant Hoskins alerted Deputies Moran and Knutsen by radio that he had spotted the suspect on the opposite street corner at the intersection of Preston and Merritt. When the deputies reached the sergeant, he pointed out the suspect. Deputy Knutsen saw a Hispanic male, approximately in his 40's, who was wearing a gray striped shirt and black pants. He was standing on the corner of Preston and Merritt, and he appeared to be arguing with a female.
The officers headed toward defendant on the corner, but defendant spotted them and ran out of sight down Preston Street. The sergeant still had his gun drawn. The suspect returned to the corner of Preston and Merritt. Defendant was told to lift his hands in the air and lie on the ground. Defendant initially brought his hands up, but was not fully compliant with their commands. At that point, all the officers had their guns drawn, and they were issuing commands.
When defendant attempted to flee, Deputy Knutsen put his side arm away and drew his Taser. Sergeant Hoskins also had his Taser out. They both unsuccessfully attempted to use their Tasers on defendant.
Deputy Moran deployed Argos, and the dog attached to defendant's upper thigh. Sergeant Hoskins again deployed his Taser against defendant, and this time made contact. The officers told defendant to stop resisting.
When defendant's shirt hiked up, Sergeant Hoskins saw the grip of a handgun tucked into the front waistband of his pants. The sergeant yelled out "gun" several times and then "waistband." The sergeant kicked defendant, who was on the ground, to prevent him from grabbing the firearm. Deputy Moran holstered his own handgun and grabbed defendant's handgun, a Black Ruger, nine-millimeter, semiautomatic pistol, and put it in his pocket for safekeeping. At trial, testifying officers identified defendant as the suspect apprehended near the corner of Preston and Merritt Streets.
After being apprehended, defendant was taken by ambulance to Natividad Medical Center. Sergeant Hoskins followed the ambulance transporting defendant to the hospital. He spoke with defendant at the hospital. Once defendant was "cleared medically" at Natividad Medical Center, Deputy Knutsen transported him to jail.
While they were waiting in the "sally port" before entering the jail's booking area, defendant asked Deputy Knutsen about the charges. After the deputy informed defendant that the charges would be reckless discharge of a firearm and having a loaded and concealed firearm, defendant said, "I didn't do anything wrong. I just shot the gun into the air. I didn't shoot anyone."
At the scene, Deputy Moran examined the gun taken from defendant. Its slide was locked back, and its magazine contained no bullets. The gun had a seven-round magazine. While on Merritt Street, Deputy Moran gave the gun to Deputy Sheppy to be stored as evidence. Deputy Sheppy put the gun, which Deputy Moran had placed in a bag, in the trunk of his vehicle, and locked the trunk.
Deputy Sheppy was directed by witnesses to the location of earlier gunfire. He collected three shell casings, which were in a "fairly tight circle" approximately six feet apart, in a paved alleyway next to Moreno's and El Nayarita. He subsequently collected three additional shell casings in a smoking area outside Franco's; the shell casings were within two to three feet of each other. Those six shell casings, spent rounds, were nine-millimeter Luger casings.
Deputy Sheppy temporarily released the gun to Deputy Vowinkel, who was going to attempt to find the firearm's registered owner. The gun was returned to Deputy Sheppy at the office the same day, and Deputy Sheppy logged the gun into evidence. From the serial number of the gun, it was determined that someone other than defendant was its registered owner.
Without defense objection, Scot Armstrong, a senior criminalist with the Bureau of Forensic Services in the California Department of Justice, testified as an expert in the field of firearm identification and forensics. Armstrong analyzed the firearm, a Ruger pistol, and some fired casings provided by the sheriff's office. After test-firing the gun and comparing test-fired casings with three casings recovered from the scene, Armstrong concluded that the recovered casings had been fired from the same gun.
At trial, Sergeant Hoskins related his experience and training with firearms. Without defense objection, the court recognized the sergeant as a qualified expert in the field of firearms. Sergeant Hoskins was asked whether he had "the experience of guns being fired in the air." He answered yes and related a Monterey County incident to which he had responded. In that instance, a firearm had been fired into the air, and the bullet had come down "through a roof into a bedroom and landed next to a sleeping child." The bullet had "[p]enetrated the roof, the insulation, the ceiling and the drywall in the celling."
Sergeant Hoskins indicated that the gun seized from defendant fired nine millimeter projectiles, which was a medium caliber. The sergeant was asked whether he had "an opinion about what happens with bullets when they're shot in the air." He answered yes, and he explained that when bullets are shot into the air, "[d]ue to gravitational forces, [the] bullets return to earth." He stated that "anything that goes up, must come down."
Sergeant Hoskins also explained that it is not possible to pinpoint exactly where a bullet shot into the air will come down. If shot "at a little bit of an angle," the "bullet can travel a significant [distance]." Sergeant Hoskins confirmed that a bullet fired into the air "will come down with velocity" and "is dangerous." In this case, people were in the vicinity of the gunshots. The gun was fired in "a heavily populated or a densely populated neighborhood, with approximately 9,000 people in the community of Castroville." There were "apartments directly above the parking lot where [the gun was fired]" and "several more apartments" "directly across the street." There were residences within a hundred yards of the place where the gun was discharged.
Sergeant Hoskins described the differences between a revolver and a pistol. He explained that a pistol, such as one found on defendant, ejects a casing when the shot is fired. After the last shot is taken, a pistol's slide locks back. On the pistol recovered from defendant, the slide was locked back, which suggested the gun was out of ammunition.
In the sergeant's experience, it was common for persons involved in criminal activity to change clothes after committing a crime to avoid detection by law enforcement.
The parties stipulated that defendant was previously convicted of a felony in California.
III
Discussion
A. Ineffective Assistance of Counsel Claim
1. Discharge of Firearm in a Grossly Negligent Manner
Section 246.3, subdivision (a), generally makes it a crime to "willfully discharge[] a firearm in a grossly negligent manner which could result in injury or death to a person." "[T]he elements of section 246.3(a) are: '(1) the defendant unlawfully discharged a firearm; (2) the defendant did so intentionally; (3) the defendant did so in a grossly negligent manner which could result in the injury or death of a person.' [Citations.]" (People v. Ramirez (2009) 45 Cal.4th 980, 986 (Ramirez).)
Ramirez observed: "The bill enacting section 246.3 was introduced in response to the phenomenon of celebratory gunfire. 'Section 246.3 was enacted primarily to deter the dangerous practice that exists in some communities of discharging firearms into the air in celebration of festive occasions. [Citations.]' [Citation.]" (Ramirez, supra, 45 Cal.4th at p. 987.) It noted: "According to the City of Los Angeles, ' "The practice of discharging a firearm into the air is a dangerous and frequently fatal activity in some communities of Los Angeles. Every New Years and Fourth of July, as well as other times, brings new stories of innocent persons injured and killed by errant bullets. Falling bullets can obtain a velocity sufficient to penetrate buildings and vehicles and more than sufficient to cause severe injury or death, often at a considerable distance from the point of firing." ' (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Assem. Bill No. 3066 (1987-1988 Reg. Sess.) June 10, 1988.)" (Id. at pp. 987-988.)
"Gross negligence, as a basis for criminal liability, requires a showing that the defendant's act was ' "such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences." ' [Citations.] It is beyond dispute that shooting a gun in a commercial area where people are present constitutes gross negligence under this definition." (People v. Alonzo (1993) 13 Cal.App.4th 535, 539-540; accord Ramirez, supra, 45 Cal.4th at p. 989.)
In Ramirez, the Supreme Court rejected an argument that section 246.3, subdivision (a), required " 'the actual presence of a person in harm's way.' " (Ramirez , supra, 45 Cal.4th at p. 990, fn. omitted.) It determined that "the Legislature intended to proscribe such grossly negligent conduct precisely because it could cause injury or death." (Ibid.) It reasoned: "Imposing such a burden on the prosecution would render the statute largely unenforceable in the very circumstances that prompted its enactment. No one knows where shots fired recklessly into the air are likely to land." (Ibid.)
2. Analysis
Defendant maintains that defense counsel rendered ineffective assistance by "failing to object to Sergeant Hoskins' qualification to opine on the science of falling bullets or to the example given as the basis of his opinion." As indicated, without defense objection, the trial court recognized Detective Hoskins as an expert in the field of firearms, and, during his testimony, the detective related a personal experience in which he responded to an incident involving a firearm shot into the air and briefly explained the danger of such conduct.
"While an appellate court may review the trial court's decision [that a witness is qualified to testify as an expert], it may reverse only for an abuse of discretion and must uphold the ruling unless ' " 'the evidence shows that a witness clearly lacks qualification as an expert . . . .' " ' [Citation.]" (People v. Dowl (2013) 57 Cal.4th 1079, 1089.) A defendant forfeits appellate review of that decision by failing to object in the trial court. (Ibid.)
Detective Sergeant Hoskin was not offering an opinion regarding the physics principles applicable to bullets fired into the air or the scientific factors that affect their speed or trajectory. His testimony was offered from a law enforcement perspective. His testimony regarding his first-hand experience with the result of a firearm shot into the air was relevant to his knowledge regarding the danger posed by such conduct. His testimony regarding the presence of people in the general vicinity of where the gun was fired was relevant and within his personal knowledge. Insofar as he testified that bullets shot into the air come down, he was merely relating the natural phenomenon of gravity, a commonly known and experienced scientific fact. What he added as an expert were the facts that bullets shot into the air return to earth with "velocity" and that the point of their return is unpredictable and his opinion that bullets shot into the air pose a danger to persons present in the area.
Defendant insists that a reasonably competent attorney would have objected that Detective Sergeant Hoskins lacked the qualifications to opine on the dangerousness of falling bullets. He also argues that a reasonably competent attorney would have objected to the testimony regarding the incident with the child based on lack of foundation and undue prejudice (Evid. Code, § 352).
First, defendant fails to show by reference to the record on appeal that Sergeant Detective Hoskins lacked the qualifications to testify as an expert on the danger of bullets shot into the air or that any of his testimony as an expert exceeded the scope of his expertise. (See Evid. Code, §§ 720, subd. (a), 801.) Second, "[t]he 'prejudice' which section 352 seeks to avoid is that which ' " 'uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " ' [Citation.]" (People v. Cage (2015) 62 Cal.4th 256, 275.) Third, and most significantly, "deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance. [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
To establish ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient and (2) counsel's deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687; see id. at p. 700 ["Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim"].) "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." (Id. at p. 688.) "Judicial scrutiny of counsel's performance must be highly deferential." (Id. at p. 689.) Counsel must be given "wide latitude . . . in making tactical decisions." (Ibid.) As to prejudice, the requisite showing is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.) "It is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' [Citation.]" (Harrington v. Richter (2011) 562 U.S. 86, 104.)
"[W]hether or not to object to evidence at trial is largely a tactical question for counsel, and a case in which the mere failure to object would rise to such a level as to implicate one's state and federal constitutional right to the effective assistance of counsel would be an unusual one. (People v. Abilez (2007) 41 Cal.4th 472, 493, fn. 3.)" (People v. Seumanu (2015) 61 Cal.4th 1293, 1312.) "[E]ven when there was a basis for objection, ' "[w]hether to object to inadmissible evidence is a tactical decision; because trial counsel's tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel's incompetence." (People v. Hayes (1990) 52 Cal.3d 577, 621.) "In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." [Citation.]' [Citation.]" (People v. Majors (1998) 18 Cal.4th 385, 403.)
"If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. (Id. at pp. 266-267.)" (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
On this appellate record, we cannot conclude that defense counsel acted deficiently by not challenging the qualifications of Detective Sergeant Hoskins to testify as an expert concerning the danger of firing a gun into the air, by not objecting to the detective's testimony on any of the grounds now raised, or by not requesting a limiting instruction directing the jury to disregard the presence of a child when considering the incident. Defense counsel could have reasonably concluded that it was tactically unwise to draw further attention to the fact that a child had almost been struck by a bullet fired into the air. (See People v. Maury (2003) 30 Cal.4th 342, 394 (Maury); People v. Medina (1995) 11 Cal.4th 694, 740.)
Defendant has failed to establish that he received ineffective assistance of counsel. B. Failure to Give Unanimity Instruction
Defendant asserts that the trial court had a duty to instruct sua sponte that, to convict him of discharging of a firearm with gross negligence, the jury must unanimously agree on which act he had committed since there were two discrete sets of gunshots and the prosecutor made no election. He contends that the trial court's failure to give CALCRIM No. 3500 (unanimity instruction) unconstitutionally reduced the prosecution's burden of proof in violation of due process.
"A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citations.]" (Maury, supra, 30 Cal.4th at pp. 422-423.) "[C]ases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' [Citation.]" (Ibid.) But "[a] unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged. [Citation.]" (Maury, supra, at p. 423.) " '[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case.' [Citations.]" (People v. Beardslee (1991) 53 Cal.3d 68, 93.)
Courts have also recognized the so-called continuous conduct or transaction exception to the requirement of an unanimity instruction. This exception applies "when the acts alleged are so closely connected as to form part of one transaction" (People v. Stankewitz (1990) 51 Cal.3d 72, 100), and "the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]" (Ibid.)
In People v. Williams (2013) 56 Cal.4th 630, the Supreme Court rejected the defendant's contention that "the trial court erred by failing to instruct the jury that it must unanimously decide which robbery offense—the completed robbery of the wallets or the attempted robbery of the cocaine—supported the robbery-murder special-circumstance allegation." (Id. at p. 682.) In that case, as in this case, "the 'criminal acts . . . took place within a very small window of time.' [Citation.]" (Ibid.) The "[d]efendant did not offer a defense based on a showing that he committed either the attempted robbery or the completed robbery, but not both." (Ibid.) Instead, the defense in that case was that the defendant "was not present at the scene of the crime and therefore played no role whatsoever in any of the crimes committed there." (Ibid.) A unanimity instruction therefore was not required. (Ibid.)
Defendant maintains that the continuous course of conduct exception is inapplicable in this case because (1) "the two incidents of gunfire are not so closely connected that they form part of one and the same transaction" in that "the sounds of gunfire were separated by time and space" and (2) the crime at issue, discharge of a firearm with gross negligence, "contemplates a single act," and it is not the type of offense that under its statutory definition involves a continuous course of conduct. (Cf. People v. Zavala (2005) 130 Cal.App.4th 758, 769 [stalking].) He asserts that one of those scenarios, i.e. closely connected acts forming one transaction or a statutory crime contemplating a course of conduct over time, must exist for the exception to apply.
Defendant further argues that the fact that he offered a single defense did not relieve the trial court of its obligation to give the unanimity instruction without request since there was a reasonable basis to distinguish between the two sets of gunshots. He points out that the gunshots occurred in two separate locations, the interval between those two sets of gunshots was unclear, there was no direct evidence that he discharged a firearm at Franco's, and only the bullet casings found in the alleyway were tested. He argues that "the jury could have had a reasonable doubt that [he] fired the shots in Francos and a reasonable doubt that the shots in alleyway were discharged with the requisite 'high risk['] of death or great bodily injury (i.e. with gross negligence)."
We do not agree that there was a rational basis for the jury to distinguish between the two sets of gunshots. Defendant was found in possession of a gun, he admitted to firing the gun into the air, and there was circumstantial evidence that he was the shooter of both sets of shots. There was no evidence of another shooter. An expert determined that three of the fired casings matched defendant's gun, and the other set of three casings recovered nearby were the identical type. Defendant's defense was same as to both sets of gunshots, namely that the People had not proved beyond a reasonable doubt that he was the shooter since no one had witnessed the actual shootings. Under the circumstances of this case, the jurors could not disagree about which set of gunshots defendant fired and yet convict him of the crime charged. They either accepted or rejected that the People had proved defendant was in fact the shooter. An unanimity instruction was not required. C. Sufficiency of the Evidence to Support Penalty Allegation
Defendant asserts that the evidence is insufficient to support the jury's finding that, with respect to count three, the penalty allegation under section 25400, subdivision (c)(6), was true.
Section 25400, subdivision (a), provides in pertinent part: "A person is guilty of carrying a concealed firearm when the person . . . [c]arries concealed upon the person any pistol, revolver, or other firearm capable of being concealed upon the person." Subdivision (c) of that section provides in pertinent part: "Carrying a concealed firearm in violation of this section is punishable as follows: . . . [¶] (6) If both of the following conditions are met, by imprisonment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment: [¶] (A) The pistol, revolver, or other firearm capable of being concealed upon the person is loaded, or both it and the unexpended ammunition capable of being discharged from it are in the immediate possession of the person or readily accessible to that person. [¶] (B) The person is not listed with the Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106 as the registered owner of that pistol, revolver, or other firearm capable of being concealed upon the person."
Defendant does not dispute that he was not the registered owner of the firearm. Rather, defendant argues that there was no evidence that the firearm seized from him was simultaneously loaded and concealed. He points out that Deputy Moran ascertained that the weapon's magazine was empty after it was seized.
As indicated, witness Juan Carlos testified that, after hearing the first set of gun shots, he followed a man out of Franco's and saw him chasing some females. The witness saw the man pull out a gun and point it up, and the witness heard several gunshots seconds later. The witness indicated that "[t]he girls were yelling that [the man] had a gun" before he saw any gun, and he did not see the gun until the man "pulled it out."
Defendant now contends that the witness's testimony indicating that he pulled out the gun was not sufficient to show that he was concealing a loaded gun because the witness's "understanding and intended meaning of the phrase is absent from the record and the phrasing is too ambiguous." As defendant indicates, the prosecutor's closing argument did not rely on Juan Carlos's testimony to prove defendant's gun was both loaded and concealed. Instead, the prosecutor argued the evidence showed that defendant had been in possession of a loaded firearm prior to the shootings and that the gun "was concealed because he was in a bar," "[n]obody let's [sic] a guy inside a bar holding a gun in his hand," and "he didn't have a holster or anything else on him."
The principles governing our review of the sufficiency of the evidence are well settled. "We ' "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' [Citations.] We presume ' "in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.] This standard applies whether direct or circumstantial evidence is involved.' [Citation.]" (People v. Prince (2007) 40 Cal.4th 1179, 1251.) " 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.' [Citation.]" (People v. Brooks (2017) 3 Cal.5th 1, 57.)
" 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] 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. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " [Citations.]' [Citation.]" (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
"The choice of which inference is to be drawn from the facts, where more than one reasonable inference is possible, is the function of the jury. [Citation.] 'It is not the province of the reviewing court to overturn the jury's verdict when it is supported by substantial evidence including the reasonable inferences to be drawn therefrom.' [Citation.]" (People v. Sweeney (1960) 55 Cal.2d 27, 51.) Moreover, "unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Here, although Juan Carlos's testimony was not entirely clear, the question of whether the loaded gun had been concealed immediately before defendant pulled it out was a factual question to be resolved by the jurors. It was a reasonable inference (1) that the weapon was loaded when defendant pulled it out because a second set of gunshots was heard within seconds and (2) that the gun had been concealed immediately before defendant pulled it out because Juan Carlos did not see it beforehand and defendant later hid the emptied gun beneath his shirt in the waistband of his pants.
The jury's true finding on the penalty allegation under section 25400, subdivision (c)(6), is supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.