Opinion
F074100
01-25-2018
THE PEOPLE, Plaintiff and Respondent, v. WILFREDO LARA, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF290489)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Meehan, J.
-ooOoo-
INTRODUCTION
A jury convicted defendant Wilfredo Lara of two counts of attempted voluntary manslaughter, two counts of assault with a firearm, and discharge of a firearm at an occupied motor vehicle. It also was found true that defendant personally used a firearm in the commission of each count and had a prior strike and serious felony conviction. Defendant appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436.
In our original opinion filed October 25, 2017, we corrected an error in the sentence and otherwise affirmed. On November 1, 2017, defendant filed a petition for rehearing, asking to address the application of Senate Bill No. 620 to his case. On November 9, 2017, this court vacated its opinion in this case and ordered briefing on whether Senate Bill No. 620 applied to defendant's case.
Defendant and the Attorney General agree that Senate Bill No. 620 applies to all judgments not final as of January 1, 2018, but disagree on whether the matter needs to be remanded for the trial court to exercise sentencing discretion. We affirm the convictions, correct the sentencing error as before, and otherwise affirm without remand.
FACTUAL AND PROCEDURAL SUMMARY
A felony complaint was filed against defendant on October 29, 2013. The information filed against defendant on April 11, 2014, charged defendant in counts 1 and 2 with premeditated attempted murder, in violation of Penal Code sections 187, subdivision (a) and 664; in counts 3 and 4 with assault with a firearm, in violation of section 245, subdivision (a)(2); and in count 5 with discharge of a firearm at an occupied motor vehicle, in violation of section 246. As to counts 1 and 2, a section 12022.53, subdivision (c) weapon enhancement was alleged; and as to counts 3 and 4, a section 12022.5, subdivisions (a) and (d) weapon enhancement was alleged. The information further alleged as to each count that defendant had suffered a prior conviction in 1994 that qualified as a serious felony and a strike pursuant to section 667, subdivisions (a) through (i).
References to code sections are to the Penal Code. --------
Trial by jury commenced on February 29, 2016. Evidence at trial established that around 7:30 on the evening of October 24, 2013, Oscar Madrigal was driving on a surface street when a van pulled alongside his car on the passenger side. The driver of the van, defendant, yelled at Madrigal to pull over; defendant was known to Madrigal. Madrigal ignored defendant's request and instead increased his speed. Moments later, gunshots erupted shattering the back window and windshield of Madrigal's car. A shot passed by the left ear of Madrigal's passenger, Pedro Lopez (Lopez).
Madrigal drove home and called the Tulare County Sheriff's Department. Deputy Robert Hadley responded and took a report from Madrigal as to what had occurred. Hadley inspected Madrigal's car and saw a bullet hole in the windshield and the broken back window. There were two impact points on the rear cargo door that looked like bullet holes. One bullet was lodged in the cargo door; another bullet was lodged in the back seat; and a bullet fragment was inside the car. The bullets were nine millimeter in size.
Madrigal told Hadley where the shooting had taken place. No shell casings, tire tracks, or any other evidence of the shooting was found at that location.
Detective Jason Kennedy arrived at defendant's residence in response to the shooting incident. Defendant was inside, hiding under the bed. In a field identification, Madrigal identified defendant as the shooter. Defendant was placed under arrest.
Kennedy transported defendant to the station house, where he conducted gunshot residue testing on defendant's hands. Multiple particles consistent with gunshot residue were found on defendant's right hand; a few such particles were found on his left hand. Defendant was advised of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 and indicated he understood his rights and was willing to answer questions. Defendant denied shooting at Madrigal's car; he claimed his friend Astul had his van during the time of the shooting.
A search warrant for defendant's van was obtained. In searching the van, Kennedy found three nine-millimeter casings.
While in jail awaiting trial, defendant made two calls to his wife. In the first call, defendant said he had nothing to do with the shooting, but his wife should give Madrigal $500. Defendant claimed Madrigal was trying to extort money from him. In the second call, defendant told his wife to talk to "Sosa," "Jose Luis," and "Tala" and tell them "I'm going to need them as witnesses." Defendant stated his wife should "explain" to the three that Madrigal "was inside all day when he came out upset and hit the car" and the three are "going to do me that favor."
Lopez testified he and Madrigal were driving from Orosi to Dinuba when another vehicle drew close, some words were said, and gunshots were fired. At one point, the other vehicle had pulled alongside Madrigal's car and Lopez saw the driver. The driver of the other vehicle was defendant. Lopez ducked down when he heard the first gunshot; there were multiple shots fired. The vehicle driven by defendant was directly behind Madrigal's car when the shots were fired.
Defendant denied shooting at Madrigal's car. He claimed he was at his mother's house when the shooting took place. His mother and other people were present. Defendant's friend, Augustine Sosa Lopez (Sosa Lopez), arrived and told him Madrigal wanted to speak with him. Defendant testified he and Sosa Lopez went to Madrigal's apartment; defendant and Madrigal argued. Defendant left and went back to his mother's house.
Sosa Lopez testified that he and defendant went to Madrigal's residence; Madrigal and defendant argued. Defendant left, leaving Sosa Lopez at Madrigal's house. A few minutes later, Sosa Lopez heard gunshots, went outside, and saw broken windows and broken glass on Madrigal's car.
Defendant's mother testified defendant arrived at her house around 4:00 p.m. the day of the shooting. He then left about 30 minutes later and returned after an hour. He stayed at her house until around 7:00 or 7:30 p.m.
The jury acquitted defendant of the attempted murder charges, instead finding him guilty of attempted voluntary manslaughter. The jury also found defendant guilty on the two assault charges and the shooting at an occupied motor vehicle charge. The jury found true all the weapon enhancements. The trial court found true the prior conviction allegations.
The trial court selected count 3, assault with a firearm, as the principal term and imposed the aggravated term of eight years. An additional five years was imposed for the section 667, subdivision (a)(1) enhancement appended to count 3. A term of 10 years was imposed for the firearm enhancement appended to count 3, pursuant to section 12022.5. Terms were imposed and stayed on the convictions for the counts 1, 2, and 5 offenses, including the enhancements appended thereto. The term imposed for the count 4 conviction was ordered to run concurrently to the term for count 3; the enhancements appended to count 4 were stayed.
The abstract of judgment accurately reflects the trial court's oral pronouncement of sentence, including the imposing and staying of a section 667, subdivision (a)(1) enhancement on each of counts 1, 2, 4, and 5.
Defendant filed a timely notice of appeal on July 19, 2016.
DISCUSSION
Appellate counsel was appointed on October 27, 2016. On December 22, 2016, appellate counsel directed a letter to the superior court requesting that the abstract of judgment be modified to strike the section 667, subdivision (a) enhancements appended to counts 1, 2, 4, and 5 pursuant to People v. Sasser (2015) 61 Cal.4th 1.
On December 28, 2016, appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436. On January 30, 2017, this court issued its letter to defendant inviting supplemental briefing. On February 16, 2017, defendant submitted supplemental briefing, which argues that the evidence is insufficient to sustain the convictions.
Sufficiency of the Evidence
"To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) This standard of review applies to circumstantial evidence. (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
In considering the record as a whole, we " 'must accept logical inferences that the jury might have drawn from the circumstantial evidence.' " (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Jurors resolve any conflicts in the evidence, so conflicting evidence is not necessarily insufficient evidence. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) " ' "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." ' " (People v. Abilez (2007) 41 Cal.4th 472, 504.)
The testimony of a single witness is sufficient to support a verdict. (People v. Jones (2013) 57 Cal.4th 899, 963.) Here, there is much more than the testimony of a single witness. Both Madrigal and Lopez testified that defendant shot at Madrigal's car. In addition, physical evidence supports this testimony: the gunshot residue on defendant's hands; the nine-millimeter bullets lodged in Madrigal's car; and the nine-millimeter shell casings found in defendant's car. This is more than sufficient evidence to uphold the convictions. (People v. Kipp, supra, 26 Cal.4th at p. 1128.) That defendant, his mother, and friends testified defendant was not the shooter is conflicting evidence that the jury obviously rejected; this does not diminish the sufficiency of the evidence. (People v. Martinez, supra, 158 Cal.App.4th at p. 1331.)
Sentence
The appellate record does not contain any response from the superior court to appellate counsel's December 22, 2016, letter, nor is there an amended abstract of judgment.
In Sasser, the California Supreme Court held that a section 667, subdivision (a)(1) enhancement may be "added only once to multiple determinate terms imposed as part of a second strike sentence." (People v. Sasser, supra, 61 Cal.4th at p. 7; see id. at p. 17.) The "five-year prior serious felony enhancement is a status-based enhancement; therefore, it is not a 'specific enhancement' that may be added to each individual count." (Id. at p. 16.) Consequently, the section 667, subdivision (a)(1) enhancements appended to counts 1, 2, 4, and 5 should be stricken, not imposed and stayed.
Senate Bill No. 620
The section 12022.53 enhancements were found not true by the jury. As to each of counts 1 through 4, the jury found true a section 12022.5 enhancement. At sentencing, the eight-year term imposed for the count 3 offense was deemed the principal term, and 10 years was imposed for the section 12022.5, subdivision (a) enhancement appended thereto. The terms for the count 1, 2, and 5 offenses and enhancements were stayed pursuant to section 654. The term for the count 4 offense was to run concurrently, with the firearm enhancement stayed.
At the time defendant was charged, convicted, and sentenced, subdivision (c) of section 12022.5 provided: "Notwithstanding 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." Thus, the trial court here was required to, and did, enhance defendant's sentence pursuant to section 12022.5, subdivisions (a) and (d) by imposing a 10-year term; the other firearm enhancements were stayed. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1128.)
After defendant was sentenced, but while his case was still pending on appeal, the Legislature enacted Senate Bill No. 620. (Stats. 2017, ch. 682, §§ 1, 2.) As of January 1, 2018, subdivision (c) of section 12022.5 provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Relying primarily upon People v. Francis (1969) 71 Cal.2d 66 and In re Estrada (1965) 63 Cal.2d 740, the Attorney General concedes the foregoing amendment applies retroactively to defendant's case when the amendment goes into effect. We accept the concession without further analysis, and turn to the Attorney General's claim remand is not appropriate because no reasonable court would exercise its discretion to strike defendant's firearm enhancements. We agree.
Defendant was convicted of two counts of attempted voluntary manslaughter, two counts of assault with a firearm, and one count of shooting at an occupied motor vehicle. It also was found true that defendant personally used a firearm, within the meaning of section 12022.5, subdivision (a). As the People noted at sentencing, defendant was convicted of "shooting into a moving vehicle" with two people inside the vehicle.
Defendant had suffered a prior strike within the meaning of section 667, subdivisions (b) through (i). At sentencing, the trial court noted "tremendous concerns" that both the current offense and the prior strike offense involved gun use by defendant. Defendant also had suffered other prior convictions as an adult; had unsatisfactory performance while on probation and/or parole; and had served a prior prison term. The trial court commented at sentencing that defendant "has a serious criminal background involving uses of violence against others." As to the current offenses, the trial court noted "the circumstances" were "very serious."
The trial court imposed the aggravated term of imprisonment on the principal count. The trial court imposed a 10-year term for the section 12022.5, subdivision (a) enhancement appended to the principal term. No term was imposed for the other firearm enhancements; they were stayed. However, as the trial court noted, it imposed a total sentence that was three years less than that recommended by probation, and imposed a concurrent instead of consecutive term for count 4. It is apparent the trial court gave careful consideration to the sentence to be imposed and carefully crafted a total sentence that it felt was appropriate for the offenses and the offender.
Although defendant contends the matter should be remanded for an exercise of the trial court's discretion, we agree with the Attorney General it is inconceivable the trial court would strike any of the firearm enhancements on remand, considering defendant's record and the trial court's sentencing rationale. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
DISPOSITION
The Penal Code section 667, subdivision (a)(1) enhancements appended to counts 1, 2, 4, and 5 are stricken. The superior court is directed to prepare and disseminate to the appropriate authorities an amended abstract of judgment. In all other respects, the judgment is affirmed.