Opinion
B163216.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY MARIO OROSCO, Defendant and Appellant.
Byrnes & Wiley and Pat Winters, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.
Johnny Mario Orosco appeals from the judgment entered following his convictions by jury of assault with a firearm (Pen. Code, § 245, subd. (a)(2); count four) with firearm use (Pen. Code, § 12022.5, subd. (a)(1)) and personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)), and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); count six), with a court finding that he suffered a prior felony conviction for which he served a separate prison term (Pen. Code, § 667.5, subd. (b)). He was sentenced to prison for 18 years 8 months.
In this case, we hold Penal Code section 654 did not bar multiple punishment on counts four and six. We also hold the trial court properly refused to dismiss juror No. 6.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on about June 20, 2002, Janae Vasquez and appellant, a felon, had an argument in a motel room where they were staying with Vasquezs children. Vasquez tried to leave with her children, but appellant physically prevented her. He displayed a gun in his waistband and told Vasquez that if she made any quick moves or even thought about leaving him, the children were "`going to get it first."
Appellant kept Vasquez and the children in the room for the next two days. He repeatedly said he was not going back to prison "`on any stupid violation." Vasquez was afraid for her life and for the lives of her children. Appellant always had the gun with him, and slept with it in his hand.
On June 22, 2002, appellant told Vasquez that he was going to take her and the children to Arizona on business. Vasquez did not want to go, fearing he would kill her and her children in the desert. Vasquez and appellant argued, appellant promised to bring them back, and all of them left for Arizona. Initially, appellant was driving eastbound on the freeway. However, he had been drinking and was "driving crazily." Vasquezs daughter began crying, asked if Vasquez could drive, and Vasquez later drove while appellant slept.
While appellant slept, Vasquez turned around and headed westbound on the freeway. Vasquez drove as fast as possible to attract the police or reach her fathers home in Sylmar before appellant awoke. However, appellant awoke, grabbed the steering wheel, and caused the car to head towards the center divider. Vasquez regained control of the car. Vasquez honked the cars horn, unsuccessfully trying to get the attention of two police officers. Referring to the officers, appellant stated, "`If youre trying to contact them Ill shoot them."
With appellants consent, Vasquez drove to her fathers home, and later to a shopping center to buy a CD for her daughter to calm her. Appellant told Vasquez that she and her daughter could enter the store, but Vasquezs son would have to stay with appellant. After Vasquez and her daughter entered the store, Vasquez looked outside and saw appellant outside the car and talking to an ice cream vendor. Vasquez saw a gun in appellants hand and the vendor appeared to be afraid. Vasquez told her daughter that if anything happened, her daughter was to run to a phone and call 911.
Vasquez and her daughter later returned to the car, and Vasquez drove away with appellant and her children. At one point, Vasquez made an illegal turn to attract any police. Appellant pressed the gun against Vasquezs cheek and told her, "`If you get pulled over, thats it for everyone." Appellants action left a scratch on Vasquezs cheek.
Vasquez continued driving and looking for help. Her daughter began yelling at appellant that her uncle was going to save them and appellant would not see them anymore. Appellant turned around, pointed the gun at Vasquezs daughter, and told her to shut up.
Vasquez then slammed on the cars brakes, grabbed appellants arm, and pulled the gun to her chest and away from her daughter. The gun was alongside Vasquezs chest. Appellant pulled the trigger and shot Vasquez. He then exited the car, threw the gun in her lap, and fled. Appellant was detained a few blocks from the shooting scene. As he was about to be handcuffed, he pointed to a bottle of beer on the ground and asked if he could finish it. Vasquezs aunt testified that Vasquez told Vasquezs aunt the following. Appellant was going to shoot Vasquezs daughter, Vasquez did not want that to happen, and Vasquez and appellant wrestled for the gun. The gun went off, and appellant shot Vasquez.
Most of the above Peoples evidence consisted of a detectives testimony relating what Vasquez told the detective after the shooting. During a hearing conducted before Vasquez testified, she indicated to the court at times that she did not remember anything, and she refused to testify. The court expressly found Vasquez was willfully refusing to testify, and that she was lying when she claimed she remembered nothing. The court told the prosecutor that he could "proceed by way of People v. Green." At trial, Vasquez, who was in custody as a material witness pursuant to Penal Code section 1332, denied talking to the detective. Under the prior inconsistent statement exception to the hearsay rule (see People v. Green (1971) 3 Cal.3d 981, 985, 988-989), the court permitted the People to introduce the detectives testimony relating what Vasquez told the detective after the shooting.
At trial, Vasquez testified that she had a good relationship with appellant. At one point, he had wanted to end their relationship, but she convinced him not to end it. They sometimes stayed in motels and used methamphetamine. On June 22, 2002, Vasquez was driving appellant and her children. Appellant reached under the seat, pulled out a gun, and asked what is was. Vasquez replied that she did not know and it was not her car. Appellant became upset and they argued. Vasquez pulled her body over the gun, not because it was pointed at her daughter, but because she realized there was a gun in the car. Vasquez was not sure how she was shot, but she did not believe appellant purposely shot her. Vasquez denied she was held against her will that day, and denied that appellant had pointed the gun at anyone in the car.
Vasquezs mother testified that, during the last few months before trial, Vasquezs mother repeatedly told Vasquez that law enforcement personnel were looking for her. On one occasion, Vasquezs mother asked Vasquez why Vasquez was "`protecting this man that hurt you and was going to hurt your daughter[.]" Vasquez replied, "`Mom, I dont want to end up in pieces, tossed around in the desert. I dont want that. Try and understand."
CONTENTIONS
Appellant contends: (1) "[t]he court erred in sentencing consecutively rather than applying section 654 because the possession of a firearm and assault were part of an indivisible course of conduct"; and (2) "[j]uror No. six should have been dismissed."
DISCUSSION
1. No Impermissible Multiple Punishment Occurred.
a. Pertinent Facts.
The amended information alleged, inter alia, as to count four that appellant committed assault with a firearm against Vasquez (Pen. Code, § 245, subd. (a)(2)), and as count six that appellant, a felon, possessed a firearm (Pen. Code, § 12021, subd. (a)(1)). Appellant was convicted only on those counts. The court sentenced appellant to prison for 18 years 8 months, consisting of the 4-year upper term on count 4, plus the 10-year upper term for firearm use, plus 3 years for infliction of great bodily injury, with an 8-month consecutive term on count six, plus 1 year for the prison term enhancement.
Other counts are therefore not pertinent to this appeal.
b. Analysis.
In People v. Kwok (1998) 63 Cal.App.4th 1236 (Kwok), the court stated, "Although section 654 literally applies only where multiple statutory violations arise out of a single `act or omission, it has also long been applied to cases where a `course of conduct violates several statutes. (Neal v. State of California (1960) 55 Cal.2d 11, 19 . . . ; [citation].) A `course of conduct may be considered a single act within the meaning of section 654 and therefore be punishable only once, or it may constitute a `divisible transaction which may be punished under more than one statute. (Neal v. State of California, supra, at p. 19; [citation].) Whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is a question of fact for the trial court, and the trial courts findings will not be disturbed on appeal if they are supported by substantial evidence. [Citations.]
"In what has been characterized as a `judicial gloss on the language of section 654 [citations], the basic test used for determining whether a `course of conduct is divisible was stated in Neal as follows: `Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.]" (Kwok, supra, 63 Cal.App.4th at pp. 1252-1253.)
Penal Code section 12021, subdivision (a)(1), provides, in relevant part, that "Any person who has been convicted of a felony . . . , who owns or has in his or her possession or under his or her custody or control any firearm is guilty of a felony."
Assault with a firearm, a violation of Penal Code section 245 subdivision (a)(2), requires that a defendant, with a firearm, commit an assault. An "assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.) The defendant must be subjectively aware of the facts giving rise to the risk of injury, but need not be subjectively aware of that risk. (Id. at p. 788.)
Appellant emphasizes Vasquezs trial testimony version of the events of June 22, 2002, and not the detectives testimony as to what she told him after the shooting. Nonetheless, there was substantial evidence, including the detectives testimony, as follows. Appellant, a felon, possessed a gun from June 20 to June 22, 2002, inclusive. There were two assaults with a firearm committed by appellant against Vasquez, but each was committed on June 22, 2002. The first was when appellant pressed the gun against Vasquezs cheek and issued a threat. The second was when, after pointing the gun at Vasquezs daughter, he shot Vasquez.
A defendant can commit a single offense with multiple criminal objectives, and may be punished for that and another offense committed during a course of conduct if the two offenses shared some, but not all, criminal objectives. (People v. Booth (1988) 201 Cal.App.3d 1499, 1502 [defendant burgled with intent to steal and to commit sex offense, then committed the sex offense; multiple punishment for the burglary and sex offense proper]; see People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)
Focusing on the events of June 22, 2002, we note that, on that date, appellant had multiple criminal objectives for committing possession of a firearm by a felon. There was substantial evidence that, on that date, appellant possessed it, threatening to shoot police. He later possessed it to intimidate a vendor. Still later, appellant used the gun to assault Vasquez on her cheek. He later assaulted Vasquezs daughter with the gun, pointing it at her. Finally, he shot Vasquez. Thus, multiple punishment on counts four and six was not barred by Penal Code section 654, since appellant, when committing possession of a firearm by felon on June 22, 2002, had three criminal objectives independent of any he had for committing any assault with a firearm against Vasquez. (Cf. Kwok, supra, 63 Cal.App.4th at pp. 1252-1253.) None of the cases cited by appellant, or his argument, compels a contrary conclusion.
That the jury, presented with these facts at trial, and using there the standard of proof of beyond reasonable doubt, acquitted appellant of committing assault with a firearm against the daughter (count five) did not mean that substantial evidence was not before the sentencing court to support multiple punishment, since the standard of proof for sentencing decisions is merely preponderance of the evidence (cf. People v. Lewis (1991) 229 Cal.App.3d 259, 264; People v. Gragg (1989) 216 Cal.App.3d 32, 42-46; People v. Levitt (1984) 156 Cal.App.3d 500, 514-516; but see People v. Takencareof (1981) 119 Cal.App.3d 492, 497-500 ), and such evidence was presented here as to that assault. In any event, even if we leave aside appellants commission of possession of a firearm by a felon to commit assault with a firearm against the daughter, there remained, as our previous discussion makes clear, two other independent criminal objectives that justified multiple punishment.
Appellant claims that California Rules of Court, rule 4.425, containing criteria affecting concurrent or consecutive sentences, "suggests" that imposition of consecutive sentences for the offenses was error. Appellants claim is unavailing since it is not addressed in a separate heading in his briefs. (Cf. People v. Baniqued (2000) 85 Cal.App.4th 13, 29; In re Keisha T. (1995) 38 Cal. App. 4th 220, 237, fn. 7 ["[w]e interpret this casual treatment as reflecting . . . lack of reliance on this argument."]) On the merits, we reject appellants claim. The sentencing court found that "the actual possession of a firearm and the actual shooting of it are two separate individuals [sic]; there was significant amount of time that lapsed between the time that the defendant entered the vehicle with [Vasquez] and the two kids; possessing the gun and the actual shooting of it." We already have observed that appellant, when committing possession of a firearm by a felon on June 22, 2002, had multiple criminal objectives independent of any he had for committing any assault with a firearm against Vasquez. The sentencing court, in the exercise of its discretion, reasonably could have imposed consecutive sentences, relying on the facts that the crimes and their objectives were predominantly independent of each other (Cal. Rules of Court, rule 4.425(a)(1)), the crimes involved separate acts of violence or threats of violence (Cal. Rules of Court, rule 4.425(a)(2)), and the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior (Cal. Rules of Court, rule 4.425(a)(3)).
Appellant in his reply brief, asserts that "according to the victim, Ms. Vasquez, the Appellant found the gun under the seat of the car and then events happened `too fast to describe how she came to be shot [fn. omitted]." In the omitted footnote, appellant states, "Any testimony to the contrary was not from a percipient witness but was hearsay. Evid. Code section 1200." Appellant apparently refers to the detectives testimony relating what Vasquez told him after the shooting. Appellant does not claim that the detectives testimony was inadmissible hearsay. Even if appellant did, the claim would be unavailing since he first raised it in his reply brief. (Cf. People v. Thomas (1995) 38 Cal.App.4th 1331, 1334; People v. Jackson (1981) 121 Cal.App.3d 862, 873.) Moreover, the detectives testimony was admissible under the prior inconsistent testimony exception to the hearsay rule. (Cf. People v. Green (1971) 3 Cal.3d 981, 985, 988-989; Evid. Code, § 1235; see fn. 1, ante.)
2. The Court Properly Refused To Dismiss Juror No. 6.
a. Pertinent Facts.
During a break in the presentation of the Peoples case-in-chief, the court and both counsel were present in chambers when the court told the prosecutor that appellant claimed he had seen a juror hand a note to the prosecutor.
The prosecutor indicated she knew to what appellant was referring. She said it was not a note. Instead, when one of the jurors was leaving the day before, the juror slid an exhibit on the counsel table. The prosecutor commented that the exhibit was a photograph that had been passed around. The prosecutor later indicated that the juror was juror No. 6.
Juror No. 6 later entered chambers and the court questioned her. The following occurred: "The Court: All right. Mr. Orosco, the defendant, is claiming that he saw a juror hand a note to the district attorney. [¶] Yesterday, did you — [¶] Juror No. 6: My heart is — [¶] The Court: Thats okay. Just relax. Nothing bad is going to happen." The court then asked juror No. 6 if she took an exhibit and put it on the prosecutors desk. Juror No. 6 replied in the affirmative. Juror No. 6 explained that, because she had been the last one to view the exhibit, she put it on the desk when she was walking out for lunch. Juror No. 6 put two exhibits on the prosecutors desk. She did not hand them to the prosecutor, and she did not hand a note to the prosecutor. One of the exhibits was a note that a witness had written, the other exhibit was a photograph. The court thanked juror No. 6 and indicated she could leave. Juror No. 6 replied in the affirmative, said she was sorry for the confusion, and later left chambers.
Appellants counsel later told the court, ". . . I actually wish the court had not phrased it to that juror that Mr. Orosco was claiming that. . . . Im worried now that this juror is tainted against him." Appellants counsel commented, "It kind of — I think she should be excused."
The prosecutor disagreed and requested that the court call her back and perhaps ask her "if this influences her in any way." The prosecutor commented, "I think the court was just doing its job in inquiring."
Juror No. 6 was called back into chambers and the court told her that the court had forgotten to ask her a question. The following then occurred: "[The Court:] I indicated to you that Mr. Orosco, the defendant, had thought he saw this. [¶] Are you going to hold what I said to you against him in any way? [¶] Juror No. 6: No. [¶] The Court: Are you sure? [¶] Juror No. 6: Thats fine. [¶] The Court: Are you sure? [¶] Juror No. 6: Positive. [¶] The Court: Can you put aside what I said to you about him complaining that he saw a juror hand something? [¶] Juror No. 6: Its fine. I mean, I didnt hand her a note, so Im not really — not really thinking about it. [¶] The Court: But youre not going to feel attacked by what he claims? [¶] Juror No. 6: No, not at all. [¶] The Court: Youll put it aside? [¶] Juror No. 6: Of course. [¶] The Court: All right. Thank you very much. [¶] Juror No. 6: Are you sure? This is — this is making me nervous." Juror No. 6 then exited chambers.
The court then told appellants counsel, ". . . I feel very assured that shes not going to hold it against your client in any way. And I felt that I had to be honest because — I suppose I could have eliminated that he claimed that, but I just didnt think it was necessary."
Appellants counsel indicated he was still asking that juror No. 6 be excused. The prosecutor stated, "I dont believe its necessary. I think the court has questioned her. I think any juror, you know, when you call them into chambers, they want to make sure they didnt do anything wrong. I think as long as she found out she didnt do anything wrong, I think shes fine." The court stated, ". . . . I dont see good cause to excuse her at this time." The court offered to ask all other jurors if they handed a note to the prosecutor. The court indicated it could ask them as a group and ask them individually. Appellants counsel replied that that was not necessary and he was not making that request.
b. Analysis.
Appellant claims "[j]uror No. 6 was accused of misconduct by Appellant and, as a result of being confronted with that accusation, expressed `nervousness or fear, and exhibited physical signs of fear. Even if Juror No. 6 did not consciously acknowledge that this fear and nervousness would likely generate resentment and bias against Appellant, there isnt any rational way Juror No. 6 could have avoided the situation at least unconsciously affecting her deliberations and ultimate judgment." We disagree.
In People v. Williams (2001) 25 Cal. 4th 441, our Supreme Court observed, "A trial courts authority to discharge a juror is granted by Penal Code section 1089, which provides in pertinent part: `If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty, . . . the court may order him to be discharged and draw the name of an alternate, . . . [Fn. omitted.] (Italics added; see also Code Civ. Proc., §§ 233, 234.) `We review for abuse of discretion the trial courts determination to discharge a juror and order an alternate to serve. [Citation.] If there is any substantial evidence supporting the trial courts ruling, we will uphold it. [Citation.] We have also stated, however, that a jurors inability to perform as a juror must "`appear in the record as a demonstrable reality." [Citation.] [Citation.]" (People v. Williams, supra, 25 Cal.4th at pp. 447-448.) The same standards apply upon appellate review of a trial courts determination not to dismiss a juror.
We have recited the pertinent facts. Appellant does not claim juror No. 6 committed misconduct. Juror No. 6 did not hand or otherwise give a note to the prosecutor, but merely left exhibits on the prosecutors table because juror No. 6 had been the last juror to view them. Juror No. 6 commented about her heart, but the record fails to demonstrate she was reacting to the fact that appellant had accused her as opposed to reacting merely to the fact that the court had summoned her, and not other jurors, to chambers. The court later thanked her, said, "Thats it[,]" and juror No. 6 apologized for the confusion.
After appellants counsel expressed concerned that the court had identified appellant as the person complaining that juror No. 6 had handed a note to the prosecutor, juror No. 6 was summoned to chambers again. The court, telling juror No. 6 that the court forgot to ask a question, demonstrated sensitivity by characterizing the second inquiry as a mere continuation of the first. Juror No. 6 indicated she was positive that she would not hold against appellant the fact that the court had identified appellant as the complainant. Juror No. 6 indicated she was not thinking about it, and would not feel that she had been attacked by appellant.
After the court thanked juror No. 6, she asked if the court were sure and indicated that "this is making me nervous." But that demonstrated only that she had been nervous that she had been summoned again to chambers after thinking her previous appearance there had resolved matters.
The burden is on appellant to demonstrate error from the record; error will not be presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) The record fails to demonstrate that it was because juror No. 6 was confronted with appellants accusation that she expressed nervousness or fear. Juror No. 6s alleged inability to perform as juror does not appear in the record as a demonstrable reality, and the trial court properly refused appellants request to dismiss her. None of the cases cited by appellant compels a contrary conclusion.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P.J., KITCHING, J.