Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Super.Ct.No. RIF120638.
Rod Pacheco, District Attorney, Riverside County, and Elise J. Farrell, Deputy District Attorney, for Plaintiff and Appellant.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
MILLER J.
A jury convicted Jose Alfredo Perez of one count of attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1), and one count of assault with a deadly weapon. (§ 245, subd. (a)(2); count 2.) The jury found true the enhancement allegations that the attempted murder was premeditated, deliberate and willful, and that defendant personally discharged a firearm. (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8).) The jury also found true an enhancement allegation that defendant personally used a handgun in the commission of the assault. (§§ 12022.5, subd. (a)(1), 1197.2, subd. (c)(8).).
All further statutory references will be to the Penal Code unless otherwise indicated.
Prior to sentencing, defendant filed a motion for new trial. On the hearing date for the motion, the court indicated to the parties its intention to dismiss the action for insufficient evidence rather than granting a new trial. The court provided the parties a further opportunity to file supplemental briefing on the dismissal issue.
At the continued hearing date, the trial court found there was insufficient evidence to support the verdicts, set aside defendant’s convictions on both counts and struck the enhancements pursuant to section 1118.1. The People appealed the order of dismissal.
In case No. E040520, this court reversed the trial court’s order of dismissal. We found that the court exceeded its jurisdiction in dismissing the action pursuant to section 1118.1, in that section 1118.1 does not authorize a court to dismiss an action after a verdict has been rendered. We remanded the matter to the trial court to determine whether it was going to dismiss the verdicts under section 1385, entertain defendant’s motion for new trial, or sentence defendant.
On remand, the trial court again dismissed the two counts on the grounds of insufficiency of the evidence, this time pursuant to section 1385. The trial court ruled that “[s]hould the appellate court find that there is legally sufficient evidence to uphold the verdicts then I also find that under PC 1181 that it would be appropriate to grant a new trial in this case . . . .”
The People appeal the court’s order of dismissal on the grounds that (1) the evidence was legally sufficient to support the jury’s verdicts, and (2) the trial court’s alternative order granting defendant’s motion for new trial was result-oriented and failed to give proper deference to the jury’s verdicts.
We conclude that the evidence was legally sufficient to support the convictions for attempted murder and assault with a deadly weapon. We also conclude that once the trial court dismissed the convictions, there could be no motion for new trial pending as there was no continuing viable action. Therefore, we reverse the trial court’s dismissal of the convictions for attempted murder and assault with a deadly weapon and remand the matter to the trial court to conduct a hearing on defendant’s motion for new trial, and make a ruling thereon.
FACTUAL AND PROCEDURAL HISTORY
A. Prosecution’s Case.
On November 20, 2004, Roberto Torres was walking to his home on Pecan Street when he noticed a white four-door car following him. As he started down Pecan Street the car was traveling behind him slowly, but as he continued further down the street, the car caught up to him. Torres felt nervous because he was not used to having anyone follow him home.
Torres observed four people inside the vehicle. The occupants were “throwing up some signs” or challenging him to a fight. The car stopped and the people inside stared at him. Torres turned toward his house and the car drove off. The car drove toward the end of the street, made a U-turn, turned off its lights and accelerated quickly towards him.
Torres ran to the side of his home. He saw the glare of the car’s brake lights as the car stopped. Torres heard someone in the car say, “he ran to the back,” and watched the car drive quickly away.
Scared, Torres ran inside his home and called his brother, Ramon Rivera (Rivera/victim). Rivera was in his bedroom when he heard his brother knock loudly on his door. Torres told him that a white car was following him and said, “Florencia 13’s following me,” and “I think they’re in front of the house.”
Pecan Street was claimed as a territory of the Barrio Pecan street gang (Barrio Pecan). Around the time of the incident, Rivera was aware that Barrio Pecan was an enemy of the Florencia 13 street gang (Florencia 13), Edgemont and La Grande Familia street gangs. Rivera had been present when Florencia 13 members and Barrio Pecan members were shooting at each other.
Rivera became angry because these individuals were following his brother. He quickly went outside to engage in a fight with them.
Rivera exited through the front door of his home and made a right turn onto a cement walkway leading to the driveway where his mother’s SUV was parked on the right half of the driveway pad. As Rivera stepped off the driveway and onto the sidewalk, he saw that the car his brother described had just turned the corner.
Rivera saw a small white car catty-corner across the street from him. There were four or five people inside the vehicle. As the car turned, Rivera saw defendant sitting in the rear passenger seat behind the driver. Defendant’s door opened and defendant hung his leg outside the door until the car stopped. Rivera did not know why defendant was coming down the street in that manner.
Rivera recognized defendant. He had known him from his (Rivera’s) many years of trespassing onto the grounds of Moreno Valley High School, where defendant attended. He also saw defendant at parties he attended. No problems existed between the two; Rivera and defendant would shake hands and speak to each other. Defendant had seen Rivera with Barrio Pecan members. Rivera was aware that defendant used to be friends with Barrio Pecan members, but was no longer on friendly terms with them at the time of the shooting.
Rivera yelled for the car to stop and challenged the occupants to fight. Defendant exited the vehicle. Rivera called defendant a “fucking pussy,” told him to “come on, bitch,” and put his hands up. Rivera stepped off the curb and into the street. He had his hands down at the sides of his body.
Defendant responded by cursing at Rivera, but hesitated to come forward. Defendant advanced one or two steps, which caused Rivera to step back to the sidewalk without turning his back on defendant.
As Rivera stood on the sidewalk, defendant stood by the vehicle 20 to 25 feet away, at a catty-corner angle from Rivera.
Rivera continued cursing and challenging defendant to a fight. Defendant responded in kind, but did not reciprocate Rivera’s challenge to fight. The argument lasted for approximately 20 to 30 seconds.
Finally, an angry defendant said, “oh yeah? Oh yeah?” and pulled a gun from the pocket of his sweater. With his arm extended away from his body, twisting the gun’s handle at 90 degrees so that it was parallel to the ground, defendant pointed the gun straight at Rivera’s face
When Rivera saw the gun he hesitated, then took a couple of steps back from the curb and quickly jumped to the side of his mother’s SUV. The gun was still pointed at him when he stepped back and jumped to the side. Rivera landed on the ground, contacting the ground with his hands and knees. When Rivera left the street and headed toward the SUV, he was no longer looking at the shooter and lost sight of the weapon.
Rivera heard a shot come from the direction where defendant had been standing. The shot did not come while he was standing on the curb—it came after he had jumped to the side. Rivera heard defendant say, “That’s what I thought” after he had taken steps back and jumped to the side of the truck. He was on the floor before the shot had been fired.
Rivera took defendant’s statement to mean that he was being called a “punk” and a “bitch and would run.”
Rivera heard the sound of squealing tires and the car “peeling out.” When he got up, he saw the vehicle was gone.
Rivera described what he believed was the bullet’s trajectory, based on the angle the gun was pointed at him. Rivera said the gun was aimed between a point off to the left of his house to a point by his neighbor’s house.
The bullet’s line of fire “would have been . . . from the middle of [Rivera’s] house to [Rivera’s] next door neighbor, but it would have hit [Rivera’s] next door neighbor[’s house]” and gone into the trees on Rivera’s property.
Rivera never saw the shot being fired. He acknowledged there were no bullet holes in his house.
The police were called and arrived five minutes later. Officers checked the street but were unable to locate any shells. Rivera did not see the police venture near the neighbor’s yard to see if there were any casings or projectiles.
Deputy Anthony Johnson, of the Moreno Valley “gang team,” testified that he responded to a “shots fired” dispatch call around 5:30 on November 20, 2004. Deputy Johnson arrived at the Pecan Street home where Rivera resided. After speaking with Rivera, Deputy Johnson searched the area immediately in front of the residence for shell casings and bullet strikes. Johnson’s search included the garage, the sidewalk, the street in front of the house and the neighbor’s home to the south. He did not search the area to the left of the home. It was dark at the time of the search and there wasn’t any lighting in the area by the tree and the neighbor’s home. Johnson’s search did not yield any physical findings.
If facing the home from the street.
Deputy Johnson testified that a bullet’s projectile differs in size, depending upon the caliber of the weapon. The size of the bullet could range anywhere from half an inch in diameter (for a .45 caliber) to one-fourth of an inch (for a .22 caliber). Depending on the type of firearm, sometimes a casing would be ejected from the gun and at other times no casing would be ejected. For example, a semiautomatic gun would eject a casing a couple of feet from where the shooting occurred, whereas if a revolver were fired, the casing would remain inside the weapon unless it was manually dumped out.
1. Prior shooting.
Deputy George Reyes testified as a gang expert. He rendered an opinion that the Florencia 13 and Barrio Pecan gangs were at war with each other and that the violence escalated during October and November 2004, resulting in “back and forth” shootings. Deputy Reyes was acquainted with defendant and knew he associated with Florencia 13 members.
Deputy Reyes said that Pecan Street was within the territory of Barrio Pecan. He believed that if a member of Florencia 13 drove down Pecan Street with a carload of two, three, or more persons and continually drove up and down the street, it would signal to Barrio Pecan members that Florencia 13 was looking for war.
Deputy Reyes spoke with defendant about an earlier incident that occurred on October 26, 2004. Defendant reported to Deputy Reyes that he was driving with a friend when he recognized two members of Barrio Pecan, sitting in the driver and passenger seats of a black car. The black car made a U-turn and began to follow him. Defendant tried to evade the black car as it chased him through several streets in Moreno Valley. As the black car followed defendant, he heard several shots and saw the back window of his car shatter. Defendant ducked down, lost control of his vehicle and crashed, sustaining injuries. Defendant told Deputy Reyes that he believed the shooters, Hugo and Chelis, were either from Barrio Pecan or East Side Riva. Defendant also said there had been a separate shooting incident in which he had been shot in the leg.
Defendant knew these two individuals as “Hugo” and “Chelis.”
B. Defense’s Case.
Defendant testified on his own behalf. He stated that around 5:30 p.m., he was riding in a white car. The vehicle had just left a friend’s house and was traveling to defendant’s home. The driver was taking a shortcut to get to defendant’s house by way of Pecan Street. Defendant admitted that his home was in the opposite direction from Pecan Street.
Defendant knew where Rivera’s house was located. The driver drove down Pecan Street at five to 10 miles an hour, made a U-turn and then came back down Pecan. The driver made a second U-turn and was in front of Rivera’s house when he saw Rivera come out. Defendant said that the car went down Pecan Street and was “busting U[’]s” for no particular reason. He denied “mad-dogging” anyone.
A euphemistic term meaning “making a U-turn.”
Rivera came up to the vehicle and challenged all of its occupants to a fight saying, “what’s up? Stop. Stop. Get out of the car.” Rivera appeared angry and upset and was throwing his hand up. Defendant had never previously had a “beef” with either Rivera or his brother and was surprised by Rivera’s cursing and challenge. He did not know Torres and did not know why Rivera was angry. Defendant acknowledged Rivera’s arguing was disrespectful, but stated he did not know why Rivera was doing that.
Once Rivera challenged the car’s occupants, someone inside the car handed defendant a gun. He did not know who handed him the gun and did not know whether the gun was loaded. He denied bringing the gun with him to Pecan Street.
Defendant exited the vehicle and began arguing with and cursing back at Rivera. The two continued to argue until defendant “just pulled out” a pistol from a pocket of his sweater. Defendant held the gun at his side, pointing it at an angle toward the ground, but stated he never pointed it directly at Rivera.
After defendant pulled out the gun, Rivera stood there for two seconds and then quickly ran toward his house or next to a car. Rivera looked stunned, shocked and surprised.
Defendant “went after” Rivera. He took four steps forward and then four steps back. When Rivera was out of sight, defendant pointed the barrel toward the sky and fired a warning shot into the air for self-defense. He fired into the air because he did not want to shoot anyone. He did not know why he had not refrained from discharging the weapon. He did not tell Rivera he was not going to do anything to him.
Defendant explained that he had pulled out the gun because supposedly, “people from Pecan” had shot at him on four prior occasions. He did not fire at Rivera when Rivera ran away because defendant was not “after” Rivera. Defendant acknowledged that he did not see a gun and admitted that no one was pointing a gun at him when he fired. Defendant said he was not mad, but rather was upset and scared. He could not explain why, when he was scared, he would jump out of a car to confront someone, just that, “when you’re scared you . . . do crazy things.”
Defendant denied that he associated with Florencia 13 or that he was in the vehicle with a member of Florencia 13. He said that his brother associated with Florencia 13, but he himself was not a gang member. He “guess[ed]” that Chelis (whose real name was Jose Juarez) was part of Barrio Pecan and lived on Pecan Street. He did not see a man named James walking down the street and did not tell the driver to make a U-turn to catch up with him.
Defendant denied knowing a “James” and denied knowing that James was a member of Barrio Pecan who associated with Chelis and Hugo.
1. Prior shooting.
Defendant observed someone shoot at him while they were standing up through a car’s sun roof. The shooter fired at him at least 10 times. Defendant ducked down, lost control of his car, crashed into another vehicle and his car flipped over. He believed the shooter was trying to kill him. Defendant did not know why the car was chasing him or why they shot at him.
Defendant clarified that he told officers the shooters were either from East Side Riva or Barrio Pecan. He told police he thought the shooter was Chelis, but didn’t “say” it was him, since he never saw Chelis shoot at point-blank range. Defendant admitted he was afraid of some of the people who have been shooting at him and did not want to mention their names in court. He denied telling officers that Hugo and Chelis were the ones who shot at him.
DISCUSSION
A. Standard of Review of Trial Court’s Dismissal for Insufficient Evidence.
“Both trial and appellate courts must review ‘the whole record in the light most favorable to the judgment’ and decide ‘whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Under this standard, the court does not ‘“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Hatch (2000) 22 Cal.4th 260, 272.)
B. There Was Sufficient Evidence to Support the Conviction for Assault with a Deadly Weapon.
In the minute order dismissing the action, the trial court set forth a review and analysis of the evidence. The minute order reads, in part:
“The first question to be addressed is did the defendant ever pull the trigger of the gun in an attempt to shoot the victim? Since there is no witness that says this occurred and since there is no physical evidence suggesting this occurred the court is convinced by clear and convincing evidence that it did not occur. The only reasonable interpretation of the evidence is that at the time the gun was fired it was not pointed at the victim nor was it pointed in the general direction of the victim.
“The second question is did the defendant ever point a loaded gun at the victim? The evidence is clear that the answer to this question is yes.
“The third question is whether or not this pointing was a brandishing or whether it was part of an attempt to shoot the victim. Again the court finds by clear and convincing evidence that the act of pointing the weapon was a brandishing and not an attempt to shoot the victim. Therefore the court finds that no reasonable jury could conclude that an attempt to shoot the victim [o]ccurred.
“If the pointing was an attempt to shoot there is no explanation of why there was no shot while the gun was pointed at the victim. The two parties were 20-25 feet apart with no obstructions between them. The victim froze in place for a short time after the gun was pointed. There was no external event preventing the defendant from firing or even distracting the defendant from firing.
“The manner in which the gun was held was more consistent with it being a bravado show of force than an attempt to aim and fire.
“The defendant had no motive to shoot the victim. The defendant knew the victim and knew that the victim was a member of a gang with which the defendant had no quarrel.
“The defendant did have a motive to brandish a gun in a threatening manner at the victim. The victim was taunting the defendant and his friends. Although the defendant had no quarrel with the victim, the gang culture would not permit such taunting to go unchallenged.
“After the victim dives behind the vehicle the defendant needed to only move about 20 feet in order to have a clear unobstructed shot at the victim who is then on his hands and knees. Instead of doing so the defendant utters a final taunt—‘That’s what I thought.’—and fires a single shot into the air. Both the taunt and the shot in the air are consistent with the pointing being a brandishing. Both are inconsistent with [the] pointing being an attempt to shoot.”
Citing People v. Thompson, (1949) 93 Cal.App.2d 780, 781 (Thompson) and People v. Raviart (2001) 93 Cal.App.4th 258 (Raviart), the People contend that the trial court erred in finding that no reasonable jury could have concluded that an attempt to shoot the victim had occurred. We agree.
An assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) The crime of assault with a deadly weapon requires proof of the basic crime of assault, plus proof that it was accomplished by the use of a deadly weapon or with force likely to cause great bodily injury. (CALCRIM No. 875; § 245, subd. (a).) Assault is a general intent crime that does not require a specific intent to injure the victim or a subjective awareness of the risk that an injury might occur. (People v. Williams (2001) 26 Cal.4th 779, 788, 790.) “Rather, 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.” (Id. at p. 790.)
To convict someone of assault with a deadly weapon, the People must prove: (1) a defendant did an act, (2) with a firearm, (3) that by its nature would directly and probably result in the application of force to a person, (4) defendant did that act willfully, (5) when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone, and (6) when the defendant acted, he had the present ability to apply force with a firearm to a person. (CALCRIM No. 875; § 245, subd. (a)(2).)
The California Supreme Court has repeatedly explained the requisite intent for assault with a deadly weapon. (People v. Colantuono (1994) 7 Cal.4th 206, 213.) The mens rea of the offense of assault with a firearm does not require a specific intent to inflict a particular harm. (In re Tameka C. (2000) 22 Cal.4th 190, 198.) The issue is whether defendant intended to commit an act likely to result in such physical force, not whether he intended a specific harm. (Ibid.) The intent to cause any particular injury, to severely injure another, or to inflict bodily harm is not necessary. (People v. Rocha (1971) 3 Cal.3d 893, 899.)
For over 150 years, our state courts have held that an assault with a firearm is committed when a defendant draws a weapon and has it available for use against any victim within the range of the weapon.
In People v. McMakin (1857) 8 Cal. 547 (McMakin), the defendant accosted the victim while the victim was riding on horseback along a trail that ran through lands that were in dispute between the victim and the defendant. Defendant threatened to shoot the victim if he did not leave the land and at the same time, drew a revolver which he pointed in a perpendicular line with the victim’s body so that the ball would strike the ground before it hit the victim if the pistol was been discharged. The victim turned his horse and rode off, and the defendant did not pursue him. (Ibid.) The California Supreme Court affirmed the conviction for assault with a deadly weapon, finding that the defendant had the ability to commit the offense. (Id. at p. 548.)
It declared, “It is not essential to constitute an assault that there should be a direct attempt at violence.” (McMakin, supra, 8 Cal. at p. 547) “Holding up a fist in a menacing manner, drawing a sword or bayonet, presenting a gun at a person who is within its range, have been held to constitute an assault.” (Id. at p. 548, italics added.) The court stated: “If the prisoner did not intend to use the pistol at all, except for the sole purpose of intimidation, then, it is apprehended, the offense would not have been complete. But when the intent is to go further, if necessary, to accomplish the purpose intended, and preparations are actually made, and weapons drawn, and placed in a position to be instantly used offensively, and with effect, against another, and not in self defense, it would seem to be clear that the offense would be complete.” (Ibid.)
In Thompson, supra, 93 Cal.App.2d 780, the court affirmed convictions for two counts of assault with a deadly weapon. During a domestic violence call, two deputies went to the defendant’s home and to the threshold of the defendant’s bedroom. (Id. at p. 781.) Defendant, acting belligerently, moved to a chest of drawers three feet away, removed a loaded revolver from the top drawer, pointed the gun toward the deputies, aimed between them, and then pointed the gun downward. (Id. at pp. 782-783.) The court found sufficient evidence to support the assault with a deadly weapon. Although the defendant did not point the gun directly at them or fire the gun, the gun was in a position to be used instantly and his demand that the deputies raise their hands was an implied threat. (Id. at p. 782.)
In Raviart, supra, 93 Cal.App.4th 258, the court found there was sufficient evidence to support a conviction for assault with a firearm on a peace officer. It held that an assault with a deadly weapon can be committed by pointing a gun at another person, even though it is not necessary to actually point the gun directly at the other person to commit the crime. (Id. at p. 263.) Two officers pursued a defendant around a building. As they rounded the corner after the defendant, the first officer saw a chrome handgun pointed directly at him, while at the same time, he heard the second officer yell “Gun.” Both officers fired. The second officer was crouched at the corner of the building, partially behind the building, with his arm extended around the corner firing his service weapon at the defendant. The first officer saw defendant firing the gun and then moved five feet to take cover behind the building with the second officer. (Id. at p. 264-265.)
The court held that the jury could have found sufficient evidence to support the defendant’s conviction for assault with a firearm. (Raviart, supra, 93 Cal.App.4th at p. 264.) By drawing a gun with the intent to shoot the officers, the defendant performed an overt act sufficient to constitute an assault on both officers. The defendant did not have to perform the further act of actually pointing the gun directly at the officers to be guilty of assaulting the officers. It was enough that the defendant brought the gun into a position where he could have used it against the officers if the officers had not shot him first. (Id. at p. 266.) In the first place, the defendant had the ability to shoot the officers before he dove for cover. (Id. at p. 267.) Next, the officers crouching in a protected position behind a building does not negate the assault because only parts of the officers’ bodies were exposed to injury. (Ibid.) Finally, a victim taking effective steps to avoid injury does not negate a defendant’s “present ability” to apply force with a firearm to a person. (Ibid.)
In this instance, the trial court reached an erroneous legal conclusion when it ruled that defendant’s actions amounted to a brandishing, but were not an assault with a deadly weapon. The fact that defendant did not shoot Rivera while he was still exposed and had not yet taken shelter behind the SUV, does not negate the general intent for the offense of assault with a deadly weapon. Defendant had extended his arm away from his body parallel to the ground, held the loaded gun at a 90-degree angle, and pointed it directly at the victim’s face. Drawing and pointing a gun at a person within range is an assault. The general intent element was satisfied when defendant intentionally pointed the weapon at Rivera, an act likely to result in physical force.
The trial court’s conclusion that defendant’s manner of holding the gun was more consistent with a bravado show of force rather than an attempt to aim or fire is an error of law. The People were not required to prove defendant had the intent to specifically harm Rivera. The assault was completed once defendant had the gun available for his use when he pointed it within range of his victim.
McMakin, Thompson, and Raviart plainly state that pulling the trigger or shooting a projectile at a victim is not a necessary element to establish an assault with a deadly weapon. The gravamen of the offense occurs when the firearm is drawn and placed in a position where it can be used offensively, coupled with an intent to act willfully and an awareness that the nature of his act would directly and probably result in the application of force.
In this instance, there was sufficient evidence that defendant committed an assault with a deadly weapon. We conclude the trial court erred when it found no reasonable jury could find that an attempt to shoot the victim had occurred.
C. There Was Sufficient Evidence To Support the Conviction for Attempted Murder.
The People assert the trial court’s finding there was insufficient evidence for the jury to convict defendant of intending to kill Rivera was factually and legally incorrect.
1. Direct but ineffectual act.
The offense of attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (§ 21a; People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7 (Decker).) “The overt act must go beyond mere preparation and show that the killer is putting his or her plan into action.” (Decker, at p. 8.) An attempt is the direct movement toward the commission after preparations are made. It is not necessary that the overt act be the last possible step prior to the commission of the crime, nor need it satisfy any element of the crime. (Ibid.; see also People v. Morales (1992) 5 Cal.App.4th 917, 926 (Morales).) “‘Whenever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.’ [Citations.]” (Decker, at p. 8.)
“[W]hile ‘preparation is not an attempt,’ nonetheless ‘some preparations may amount to an attempt.’” (Decker, supra,41 Cal.4th at p. 12.) Defendant’s actions were more than mere preparation—they amounted to an overt act. Defendant was in a neighborhood that was in the opposite direction from his home. While the vehicle in which he was riding was on Pecan Street, a street claimed as rival territory, defendant readied himself to exit the vehicle quickly by hanging one leg out the door. Defendant took one or two steps toward Rivera and argued with him for 20 to 30 seconds. Defendant possessed a loaded firearm. Defendant ended the argument by saying “oh yeah? Oh yeah?” and pointed his weapon directly at Rivera’s face.
These direct acts are movements that constitute an attempted murder of Rivera. The last possible step would have been pulling the trigger. The fact that defendant did not pull the trigger or fire at Rivera while Rivera stood on the curb does alter not the legal conclusion that the attempt was completed at that point.
The act of Rivera running away and diving behind his mother’s SUV made defendant’s act ineffectual. (Decker, supra,41 Cal.4th at p. 7.) Defendant admitted that he went after Rivera by taking four steps forward and then four steps back. He had no explanation for why he did not refrain from discharging the weapon.
This scenario is similar to Morales, supra, 5 Cal.App.4th 917, where the court upheld the defendant’s conviction for attempted murder even though no shot had been fired. It found the defendant’s design to attempt to murder his wife’s boyfriend was clearly demonstrated when he threatened to get the victim twice, went home, loaded his gun, drove to the victim’s neighborhood, and hid in a position that would give him a clear shot if the victim exited his front door. (Id. at pp. 926-927.)
The difference between Morales and this case is that defendant, here, went further by actually pointing the weapon at his victim. Thus, we find there was sufficient evidence of a direct but ineffectual act to support the attempted murder conviction.
2. Specific intent to kill.
Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (§ 21a; Decker, supra,41 Cal.4th at p. 7.)
“Evidence of motive aside, it is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .” [Citation.]’ [Citations.] ‘“The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.” [Citation.]’ [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 741 (Smith).)
We conclude that a reasonable jury could find that defendant had the specific intent to kill Rivera. There was sufficient evidence of express malice.
Clearly, Rivera was concerned for his own safety. Rivera testified that defendant pointed the gun at his face. When he saw the gun, Rivera hesitated: He was stunned, shocked, and surprised. Rivera retreated by taking a couple of steps back from the curb, and dove for cover behind his mother’s SUV.
The fact that Rivera saw defendant aiming at him and then heard, but did not see, a shot being fired was sufficient to allow the jury to infer that the shot was fired at Rivera. Since the jury could infer that defendant fired at Rivera, it could also infer that defendant intended to kill Rivera.
“Our role is to determine the legal sufficiency of the found facts and not to second guess the reasoning or wisdom of the fact finder.” (People v. Lashley (1991) 1 Cal.App.4th 938, 946.) “While reasonable minds may differ on the resolution of that issue, our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.]” (Ibid.) We conclude that a rational jury could find that defendant had the specific intent to kill.
The jury found true the enhancement allegations that the attempted murder of Rivera was premeditated, deliberate and willful, and that defendant personally discharged a firearm. To make such findings, the jury must have believed Rivera when he testified that defendant pointed the gun at his face, and disbelieved defendant when he testified that he shot the gun into the air for self-defense.
It is the jury which is charged with evaluating the credibility of witness testimony and out-of-court statements such as party admissions, and on appeal we may not substitute our determination as to credibility. (Smith, supra, 37 Cal.4th at p. 739.) “Conflicts[,] and even testimony which 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.” (People v. Maury (2003) 30 Cal.4th 342, 403.) Thus, we will not reweigh the credibility assessments made by the jury wherein the jurors discounted defendant’s version of events. (People v. Rundle (2008) 43 Cal.4th 76, 140, fn 30.)
Despite his protestations to the contrary, defendant’s actions were more than just “an act of criminal stupidity” between “two ‘macho’ fools engaging in mutual bluster.” It was, in fact, an attempted murder. Based upon defendant’s participation and the totality of the circumstances preceding the shooting, it was reasonable for the jury to believe that defendant harbored the specific intent to kill another human being.
Although the trial judge determined that defendant did not have a motive to shoot the victim because defendant did not have a quarrel with the victim’s gang, there was sufficient evidence for the jury to believe defendant had a motive to seek revenge and formed the specific intent to kill a rival gang member.
“[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive—the very act of firing a weapon ‘“in a manner that could have inflicted a mortal wound had the bullet been on target”’ is sufficient to support an inference of intent to kill. [Citation.]” (Smith, supra,37 Cal.4th at p. 742, italics added.)
Rivera was a member of East Side Riva, lived in a house on Pecan Street, which had been claimed as a part of Barrio Pecan territory, and associated with Barrio Pecan members. Rivera was aware that Barrio Pecan was an enemy of Florencia 13. After the car followed Torres he told Rivera, in a panic, that “Florencia 13 [was] following [him].”
Though defendant denied being a gang member, or associating with Florencia 13, or being in the vehicle with Florencia 13 members, Deputy Reyes testified that defendant (nicknamed “Dopey”) associated with several members of Florencia 13.
In essence, defendant admitted he had a motive: He testified that he pulled out the gun because, supposedly, “people from Pecan” had shot at him on four prior occasions. He acknowledged to an officer that he had been chased by a black car, fired upon 10 times, and believed the shooter was trying to kill him. He said the shooters were either from East Side Riva or Barrio Pecan and he thought the shooter was Chelis, a Barrio Pecan member. Defendant knew Chelis lived on Pecan Street.
Defendant testified that the vehicle’s driver was taking a shortcut to defendant’s house by way of Pecan Street, even though his house was in the opposite direction. Defendant also stated that the vehicle was traveling down Pecan Street at a speed of five to 10 miles an hour and made two U-turns at either end of Pecan Street for no particular reason. Defendant took possession of a gun inside the vehicle.
The People presented gang expert testimony that defendant associated with Florencia 13 members and that if members of Florencia 13 continually drove up and down Pecan Street with a carload of two, three, or more persons it would signal to Barrio Pecan that Florencia 13 was looking for war.
The actions of the vehicle’s driver making U-turns and driving up and down Pecan Street, following pedestrians, with the vehicle’s occupants “throwing signs” and “mad dogging” Torres, and defendant exiting the vehicle with a loaded gun to engage in a verbal challenge with Rivera, were corroborating evidence to support Deputy Reyes’s testimony that defendant was “looking for a war.” Defendant’s actions were circumstantial evidence of his specific intent to kill.
The trial court referred to the lack of physical evidence of bullet strikes or casings in the area where the shooting occurred. The jury could also have reasonably believed Deputy Johnson’s testimony that it was dark at the time of the search and he did not search south of the victim’s home or a nearby tree as there wasn’t any lighting in those areas. The jury could have reasonably believed Deputy Johnson’s testimony that the gun defendant wielded may or may not have ejected a casing. If a casing had been ejected, defendant or the other occupants of the car had five minutes before the police’s arrival to pick it up from the driveway or the street.
Based on the gang history, four prior shooting incidents involving defendant, defendant riding in a vehicle on a rival gang’s street traveling five to 10 miles an hour and making U-turns while following a person on that street, pointing a gun at another person who exited a home on that street and firing a weapon at close range, there was sufficient evidence for the jury to properly infer that the shooter acted with express malice. (Smith, supra, 37 Cal.4th at p. 742.) We conclude that the circumstances surrounding the crime were such that a reasonable trier of fact could find defendant specifically intended to kill Rivera. The trial court erred by finding that no rational trier of fact could have found the essential elements of the attempted murder beyond a reasonable doubt.
D. The Trial Court Should Hear Defendant’s Motion for New Trial on Remand.
A court may dismiss all or part of a case under section 1385. (People v. Superior Court (Romero)(1996) 13 Cal.4th 497, 508.) The legal effect of a dismissal is an acquittal of the defendant; it is a final termination of the action and is within the category of a judgment. (People v. Superior Court (Lauman) (1963) 217 Cal.App.2d 517, 519.)
Once the trial court below dismissed the two counts against defendant, that portion of the action no longer existed. Hence, the trial court could not alternatively grant a motion for new trial if the dismissal was overturned on appeal because the appellate court found the evidence sufficient. Once the case was dismissed, there were no counts that remained to be retried.
Therefore, we find that the trial court erred when it granted defendant’s motion for new trial on the assault and attempted murder counts after they had been dismissed.
DISPOSITION
The dismissal is reversed. The trial court is directed to vacate the order granting a dismissal of counts 1 and 2 and set the matter for a hearing on defendant’s motion for new trial.
I concur: McKINSTER, Acting P. J.
KING, J., Concurring and Dissenting.
I agree with the majority’s discussion and conclusion as it relates to the crime of assault with a deadly weapon. I believe the trial court did err when it found that no reasonable jury could conclude that the defendant committed an assault with a deadly weapon.
I agree with the trial court, however, that there was insufficient evidence for the jury to convict defendant of attempted murder. There exists no evidence to support the conclusion that defendant fired the weapon in the direction of the victim. On this record, it is pure speculation that defendant fired the gun in the direction of the victim. I would therefore affirm the lower court’s dismissal of the attempted murder charge.