Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA066864, James R. Brandlin, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
A jury convicted Lavell Gatewood (defendant) of attempted murder (Pen. Code, §§ 187, subd. (a), 664) and found true allegations that he personally used a firearm (§ 12022.53, subd. (b)), that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), that he personally and intentionally discharged a firearm which caused great bodily injury to the victim (§ 12022.53, subd. (d)), and that he personally inflicted great bodily injury to the victim under circumstances involving domestic violence (§ 12022.7, subd. (e)). The trial court sentenced defendant to life with the possibility of parole on the attempted murder count, plus an additional 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), and an additional four years for the great bodily injury under section 12022.7, subdivision (e). Defendant received 566 days of actual custody credit and zero days of conduct credit for a total of 566 days of presentence custody credit.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the trial court committed reversible error by not instructing the jury on CALCRIM Nos. 225, 358, and 3500, and failing to award presentence conduct credits. Defendant also contends, and the People agree, that the trial court should have stayed the four-year great bodily injury enhancement and awarded an additional day of presentence custody credit.
The defendant’s contentions regarding the enhancement and presentence custody credits have merit. We affirm the judgment in all other respects.
FACTS
1. The Prosecution
In December 2006, defendant and his wife, Denise Gatewood (Denise), had been married 20 years and had three children. They owned a.380-caliber semiautomatic handgun, which they usually kept in the bedroom closet.
In late November 2006, Denise discovered the gun and a hunting knife under the mattress of the bed she shared with defendant. Denise saw that the gun was loaded and decided to hide it, along with the knife, on top of a kitchen cabinet. That same day, defendant discovered that the gun was no longer under the mattress and demanded that Denise return it to him. Denise complied, but not without removing the ammunition first. Defendant left and later returned with a shopping bag from a Big 5 Sporting Goods store which contained a box of live rounds for the gun.
The prosecution introduced evidence that the box of live rounds was purchased at Big 5 Sporting Goods store on November 28, 2006, and that several rounds were missing from the box after the shooting.
On December 6, 2006, defendant confessed to Denise and his two daughters that he had engaged in multiple extra marital affairs. When the daughters asked to leave the room during his confession, defendant refused. Denise and defendant discussed getting a divorce on that date.
On December 8, 2006, at approximately 7:00 a.m., Denise woke up and heard defendant telling the children they were late for school and should hurry out of the house. Denise thought this was odd because the children usually left for school around 7:30 a.m. and there was still plenty of time to get ready. After the children left for school, Denise began dressing for work in the bedroom. Defendant appeared at the doorway holding the gun. Denise tried to leave the bedroom, but defendant blocked her way and said “So you’re going to leave me.” Denise assured him she would not leave him, and defendant replied “No, yeah, you said you’re going to leave me.” Denise again assured defendant that she would not leave him, and defendant replied in a calm and serious tone of voice “You said you’re going to leave me. So I’m going to kill you. And then I’m going to kill myself.” He stood two feet away from Denise as he said this statement.
Defendant began “nudging” Denise toward the bed using his chest and shoulders. As defendant nudged Denise toward the bed, he told her “Go lay on the bed. Then I’m going to kill you. I’m going to kill myself.” Defendant kept telling Denise that he would kill her as he continued to nudge her toward the bed. Denise reached for the telephone, dialed 9-1-1, and then the phone fell to the floor. Denise could not recall whether she dropped the phone or defendant slapped it out of her hand. Defendant said, “You called 9-1-1” and then disconnected the telephone. Denise ran to the bedroom’s back door, which led to the backyard, and defendant intercepted her movements and locked the back door. Defendant continued nudging Denise back toward the bed and said to her “Go lay on the bed. I’m going to--going to kill you. I’m going to kill myself.” Denise testified that defendant had threatened to kill her five times while they were inside the bedroom.
As defendant moved away from the back door, Denise was able to escape through that door and into the backyard. A few minutes later, defendant was in the backyard demanding that Denise return inside. She refused. Defendant said “Well, you don’t want me to do it out here, do you?” Denise understood “it” to mean the act of killing her. Denise asked him “What about the kids?” and defendant replied “Fuck the kids.” Defendant went back inside the house and at that point, Denise climbed on top of a barbeque pit and scrambled over a wall that divided her backyard from her neighbor, Sheri Boyd’s (Boyd) backyard. As Denise was scrambling over the wall, she heard two gunshots but could not tell whether she had been shot.
While inside Boyd’s yard, Denise unsuccessfully attempted to escape by scaling another wall and a wooden fence. Meanwhile, defendant broke down a gate at the entrance to Boyd’s yard, ran toward Denise, and tackled her to the ground. Defendant placed the barrel of the gun against Denise’s stomach and again told her that he would kill her. Denise shoved the gun away from her stomach and then felt something akin to hot wax running down her thigh. Defendant placed the barrel of the gun against Denise’s head and asked her where her “medulla oblongata” was located. Defendant then said to Denise “Say good-bye, say good night, say bye-bye.” Defendant kissed Denise, said “Say goodnight,” and then he pulled the trigger. The gun did not fire because just as defendant pulled the trigger, Denise, who was struggling to push the gun away, managed to place her finger against the trigger in a way that prevented the gun from firing. Defendant and Denise wrestled until Denise told defendant that if he stopped, she would tell the police that she shot herself. Defendant eventually stopped, threw the gun in the bushes, and left Boyd’s yard. Officers from the Gardena Police Department apprehended him at that point.
Boyd’s 11-year-old daughter testified that on the morning of December 8, she woke to the sounds of five gunshots and a woman’s voice screaming “Don’t do it. I won’t leave you. Think about the kids.” She recognized the voice as belonging to Denise.
Francis Martinez, who lived next door to Boyd, testified that on the morning of December 8, he heard a woman scream “no” three times in a frightened tone of voice. Martinez then heard a gunshot and saw through his window, Denise seeking refuge in Boyd’s backyard. Martinez saw defendant chasing Denise and holding a gun. Martinez called 9-1-1 for assistance and then heard three or four more gunshots. Martinez did not see who fired the shots.
When Officer Hugo Gualotuna (Gualotuna) arrived at Martinez’s home, they both looked out the window, and saw defendant choking Denise as she lay on the ground. Gualotuna testified that he saw defendant holding a gun in one hand while choking Denise with the other.
Officers recovered three live rounds in the defendant’s bedroom and two shell casings and a disfigured bullet in the Gatewood backyard. They also saw two impact craters on the wall separating the Gatewood property from the Boyd property, which, in one officer’s opinion, was caused by hard objects striking the wall at high speeds. In Boyd’s backyard, officers recovered three shell casings and the gun.
Dr. Brant Putnam, chief of trauma services at Harbor-UCLA Hospital, testified that Denise suffered two gunshot wounds to the abdomen, one to the left thigh, and one to the left buttock. Denise testified that since the shooting, she has lost feeling from her left knee to her left upper thigh.
2. The Defense
Earlean Conroe, defendant’s sister, testified that approximately one week before the shooting, Denise called her because defendant had locked himself inside the bathroom with the gun. According to Conroe, Denise was hysterical on the phone because defendant appeared suicidal. When Conroe arrived at the Gatewood home, defendant left the bathroom, went to his car, and drove away. After defendant drove off, Denise expressed to Conroe her worries that defendant would kill himself.
DISCUSSION
I. Alleged Instructional Error
A. Defendant’s Contention
Defendant contends the trial court committed reversible error by not instructing the jury on CALCRIM Nos. 225, 358, and 3500.
B. Relevant Authority
“A trial court ‘must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.’” (People v. Avila (2006) 38 Cal.4th 491, 567.) “In determining whether there was prejudice [from an instructional error], the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.” (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) Reversal is required only if “it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
C. Analysis of CALCRIM No. 225
Defendant requested CALCRIM No. 225, an instruction that “focuses the jury’s attention on the sufficiency of the circumstantial evidence to prove specific intent or a mental state.” (People v. Burch (2007) 148 Cal.App.4th 862, 872.) An instruction on how to evaluate circumstantial evidence “‘must be given sua sponte when the prosecution substantially relies on circumstantial evidence to prove guilt.’” (People v. Rogers (2006) 39 Cal.4th 826, 885.) However, “‘[i]t is the general rule that a trial court is not required to instruct on the rules of law applicable to circumstantial evidence where the alleged circumstantial evidence is incidental to, and corroborative of, direct evidence. [Citations.]’ (People v. Malbrough (1961) 55 Cal.2d 249, 250-251.)” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.) Furthermore, the trial court should not instruct on CALCRIM No. 225 “where the evidence [of a defendant’s intent] is either direct or, if circumstantial, is not equally consistent with a conclusion of innocence.” (People v. Honig (1996) 48 Cal.App.4th 289, 341; see also People v. Wiley (1976) 18 Cal.3d 162, 174 [“The instruction should not be given ‘when the problem of inferring guilt from a pattern of incriminating circumstances is not present’”].)
The pattern CALCRIM No. 225 instruction reads: “The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state) required. [¶] A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
The trial court did not have a sua sponte duty to instruction on CALCRIM No. 225 because the prosecutor relied primarily, if not entirely, on direct evidence to prove that defendant intended to kill Denise. While in the bedroom, defendant stated to Denise at least five times that he was going to kill her. Later, when they were in Boyd’s backyard, defendant placed the barrel of the gun to Denise’s head, directed her to say “bye-bye” and “good night” and then pulled the trigger. While it is certainly true, as the Supreme Court has recognized, that “‘[t]here is rarely direct evidence of a defendant’s intent’” (People v. Smith (2005) 37 Cal.4th 733, 741), this is the unusual case in which the defendant explicitly stated his specific intention to kill the victim multiple times and then proceeded to pull the trigger on a gun pointed at the victim’s head. One is hard pressed to think of more direct evidence of a specific intent to kill than the evidence relied upon by the prosecution in this case.
Defendant points to circumstantial evidence that “strengthened” the case regarding his specific intent to kill, such as evidence that defendant purchased ammunition a week before the shooting and that he placed some of that ammunition in his bedside nightstand, and argues that this circumstantial evidence warranted an instruction on CALCRIM No. 225. However, the case law is clear -- the test is not whether circumstantial evidence strengthened the prosecution’s case. The test is whether the prosecution relied substantially on circumstantial evidence to prove its case on specific intent. As we discussed above, the prosecution relied on direct evidence of defendant’s specific intent, namely his repeated statements to Denise that he would kill her, to prove its case.
Defendant also likens his case to People v. Yokum (1956) 145 Cal.App.2d 245, which is patently in apposite. In Yokum, “[t]he only direct testimony disclosed by the record upon the question of defendant’s intent or state of mind at the time of the shooting was given by her. She testified that she did not intend to shoot anybody with the gun, that the gun jarred in her hand and that she did not know that the gun was loaded.” (Id. at p. 251.) Because “the criminal intent and malice aforethought could only be shown by evidence as to facts and circumstances surrounding the homicide in the instant case,” the Yokum court held that the trial court erred by not instructing the jury on the equivalent of CALCRIM No. 225. (Id. at p. 253.) Here, unlike in Yokum, defendant’s statements alone established his criminal intent and malice aforethought, and reference to the facts and circumstances of the shooting was entirely unnecessary.
D. Analysis of CALCRIM No. 358
The pattern CALCRIM No. 358 instruction provides the jury guidance on how to evaluate out-of-court statements made by the defendant.
“You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s]. [¶] [You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.]”
“A trial court has a sua sponte duty to instruct the jury to view a defendant’s oral admissions with caution if the evidence warrants it.” (People v. Wilson (2008) 43 Cal.4th 1, 19 [discussing CALJIC No. 2.71.7, the predecessor to CALCRIM No. 358].) We need not decide whether the trial court erred by not instructing the jury on CALCRIM No. 358 in this case because we conclude any error was harmless.
There was overwhelming evidence of defendant’s guilt in this case that was not dependent on the accuracy of the statements attributed to him. There was evidence that defendant hid a gun and hunting knife underneath the mattress he shared with Denise; that defendant purchased ammunition and hid some of that ammunition in his bedside nightstand approximately a week before the shooting; that defendant shot at Denise as she scrambled over the wall to the neighbor’s yard; and that defendant placed the barrel of the gun to Denise’s head and pulled the trigger. Moreover, the trial court instructed the jury on how to assess and evaluate a witness’s credibility. Thus, the jury was well equipped to disbelieve any part of Denise’s testimony, including the parts where she attributed certain statements to defendant, if it had reason to do so.
Furthermore, there was no conflicting evidence concerning the statements attributed to defendant by Denise. (People v. Lopez (1975) 47 Cal.App.3d 8, 14 [“failure to give cautionary instructions is less apt to be prejudicial where there is no conflicting evidence or issue concerning the statements [citation]. Conversely, when the evidence concerning the statements is conflicting, the failure to give cautionary instructions is more likely to result in prejudice to the defendant”].) The evidence at trial only corroborated Denise’s testimony that defendant intended to kill her. Boyd’s daughter testified that she woke to the sounds of five gunshots and Denise’s voice screaming “Don’t do it. I won’t leave you. Think about the kids.” Martinez testified that he heard a woman scream “no” three times in a frightened tone of voice before he heard gunshots.
For these reasons, we conclude that even if the jury had been instructed with CALCRIM No. 358, it is not reasonably probable the jury would have reached a more favorable result.
E. Analysis of CALCRIM No. 3500
CALCRIM No. 3500 (also known as a unanimity instruction), states in relevant part: “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act [he] committed.”
“In a criminal case, a jury verdict must be unanimous. [Citations.] Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases 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.)
CALCRIM No. 3500 “is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ (People v. Perez (1993) 21 Cal.App.4th 214, 223.)” (People v. Russo, supra, 25 Cal.4th at p. 1135.) Stated another way, CALCRIM No. 3500 is not required where the individual acts committed by a defendant make up a “continuous transaction” (People v Davis (2005) 36 Cal.4th 510, 561), or “one continuous [crime]” (People v. Riel (2000) 22 Cal.4th 1153, 1199). (See also People v. Crandell (1988) 46 Cal.3d 833, 875 [court need not give unanimity instruction “when the acts are so closely connected in time as to form part of one transaction”].)
Here, the individual acts committed by defendant constituted one continuous crime of attempted murder. Defendant told Denise that he would kill her several times while in their bedroom. After Denise escaped from the bedroom, defendant followed her into their backyard and shot at her after she climbed into Boyd’s backyard. Defendant immediately pursued her in Boyd’s yard, tackled her to ground, and placed the gun barrel at her head and pulled the trigger. In our view, these acts, which were closely connected in time and purpose, were one continuous transaction.
People v. Melhado (1998) 60 Cal.App.4th 1529, relied upon by defendant, is in apposite. In Melhado, the prosecution charged defendant with one count of making a terrorist threat (§ 422). The prosecution, however, put on evidence that on the day of the offense, defendant made one threat to the victim, left the scene, and then returned two hours later and made a second and different threat. (People v. Melhado, supra, at p. 1533.) Under these facts, the Court of Appeal held it was prejudicial error for the trial court to not provide a unanimity instruction. (Id. at pp. 1536-1537.) Mere minutes, and not hours, separated the two shootings in this case.
Defendant attempts to draw some significant distinction between the shots he fired at Denise while in the Gatewood backyard and the shots he fired at Denise minutes later in the Boyd backyard. Such a distinction falls flat here. “‘“[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.”’” (People v. Champion (1995) 9 Cal.4th 879, 932.) Each shot that hit Denise (and there were four) would have individually constituted the offense of attempted murder no matter which shot each particular juror focused on.
For these reasons, we conclude the trial court had no duty to instruct on CALCRIM No. 3500.
II. Enhancement
Defendant contends the trial court should have stayed the four-year great bodily injury enhancement imposed under section 12022.7, subdivision (e) in light of the 25 years to life firearm enhancement imposed under section 12022.53, subdivision (d). The People agree with defendant’s contention. We concur.
Section 12022.53, subdivision (f) states in relevant part: “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.... An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).”
Thus, under the plain language of section 12022.53, subdivision (f), the trial court should have stayed the great bodily injury enhancement imposed pursuant to section 12022.7, subdivision (e) when it imposed the 25 years to life enhancement under section 12022.53, subdivision (d).
III. Presentence Custody Credit
At the sentencing hearing, the trial court stated: “Defendant will be awarded 566 actual days [of time served]. Good-time/work-time credits are computed by the Department of Corrections.” The abstract of judgment, however, reflects 566 days of actual time served and zero days of conduct credit.
On appeal, defendant contends he is entitled to 567 days of actual time served and an additional 85 days of conduct credit pursuant to section 2933.1. Defendant requests that we direct the trial court to amend the abstract of judgment accordingly. The People agree that defendant is entitled to 567 days of actual time served, but argue that the amount of conduct credit to which defendant is entitled is a discretionary matter that must be brought before the trial court in the first instance. We agree with defendant.
Section 2933.1, subdivision (a) provides: “Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of section 667.5 [which includes attempted murder] shall accrue no more than 15 percent of work time credit, as defined in section 2933.” Fifteen percent of 567 days is 85 days.
Presentence credit issues should be first tendered to the trial court when a factual determination or an exercise of discretion is involved, but issues involving simple arithmetic may be resolved just as expeditiously through the appellate process when other appellate issues are also raised. (People v. Guillen (1994) 25 Cal.App.4th 756, 764.) Here, it is clear from the trial court’s statement at the sentencing hearing that it intended to award defendant the full 15 percent in conduct credit and that it was merely delegating the actual calculation to the Department of Corrections and Rehabilitation. The department did not make such a calculation, which was an oversight that we may correct on appeal.
DISPOSITION
The judgment is modified to stay the four-year great bodily injury enhancement imposed under section 12022.7, subdivision (e), and to grant defendant 567 days of actual time served and 85 days of conduct credit, for a total of 652 days of presentence custody credit. As modified, the judgment is affirmed.
The superior court shall direct its clerk to amend the abstract of judgment accordingly. The superior court shall send the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: BOREN, P.J. DOI TODD, J.