Opinion
F085139
04-23-2024
THE PEOPLE, Plaintiff and Respondent, v. JESUS ASTOLFO ROJO-LOPEZ, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jessica A. Perkins, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. DF014453A Charles R. Brehmer, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jessica A. Perkins, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DE SANTOS, J.
INTRODUCTION
Defendant Jesus Astolfo Rojo-Lopez and Jesus Rodriguez worked together and became acquaintances. Rodriguez met Cristal Beltran through Facebook and eventually their relationship became intimate. Rodriguez did not know that Beltran was defendant's significant other. When defendant discovered Rodriguez's relationship with Beltran, he confronted Rodriguez about their relationship. Rodriguez apologized and ended his relationship with Beltran. Sometime later, Rodriguez was driving to work when a vehicle drove up beside him. Rodriguez saw defendant look at him, point a gun at him, and shoot him in the face. A jury found defendant guilty of two counts of assault with a firearm (Pen. Code, § 245, subd. (b)), discharging a firearm at a motor vehicle (§ 246), mayhem (§ 203), and carrying a loaded firearm on his person and in a vehicle while in a public place (§ 25850, subd. (a)).
Hereinafter, undesignated statutory references are to the Penal Code.
On appeal, defendant claims that: (1) the trial court erred in denying defendant's motion to suppress the statements he made to police which he claims were obtained in violation of Miranda; (2) the trial court erred by failing to instruct the jury on the lesser included offense of grossly negligent discharge of a firearm; and (3) defendant's conviction under section 25850 should be reversed in light of the decision in New York State Rifle &Pistol Assn., Inc. v. Bruen (2022) 597 U.S. 1 (Bruen). The People contest each of defendant's claims. We deny defendant's claims and affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
FACTUAL BACKGROUND
On June 27, 2019, Sergeant Charles Hankins responded to a call regarding a shooting and observed a gray vehicle stopped on the shoulder of the road and partially embedded into the bushes. Two males were at the scene. One of the males was Guadalupe Leon, who frantically came towards Hankins. Leon was animated and screaming and yelling. Leon appeared to be suffering from a gunshot wound to one of his arms. He explained to Hankins there had been a shooting. The other male, Jesus Rodriguez, was sitting on the front bumper of the vehicle with his back to Hankins. Hankins approached Rodriguez and observed that his entire jaw had been blown away. Rodriguez had no mouth, his tongue was hanging out, and he was covered in blood. Rodriguez was air lifted by helicopter to a trauma center. California Highway Patrol officers arrived at the scene to complete the investigation.
California Highway Patrol Officer Jose Bravo went to the hospital to speak with the victims. Bravo was unable to speak with Rodriguez on his first visit because Rodriguez's face was wrapped, he had several tubes coming out of his body, and he was not able to communicate. It was apparent that Rodriguez had a facial injury. Bravo met with Leon, who had a bandage on his left arm. Bravo spoke with Rodriguez's wife, Ismelda Rivera, who showed him a text message from Rodriguez sent that morning. The text messages translated into English stated: "It was [defendant]. We have problems with him and I. His woman or wife." Based on this information, Bravo directed Sergeant Alcaraz to meet with defendant. About a month later, Sergeant Alcaraz interviewed Rodriguez on July 31, 2019. During this interview, Rodriguez could not speak because his jaw was wired shut but he was able to communicate by writing his responses.
Rodriguez testified at trial. He explained he knew defendant from working in the field together since 2017. In 2019, Rodriguez began picking up Leon on the way to work every day in his gray vehicle. Rodriguez also drove his two daughters to the babysitter every morning. Defendant saw Rodriguez drive to work every day. Rodriguez and defendant were acquaintances at work and outside of work. Defendant came to Rodriguez's house almost daily. Rodriguez knew defendant had a wife or significant other but had never met her.
Rodriguez met Beltran through Facebook Messenger. Beltran reached out to Rodriguez and they began dating after a month and a half and had an intimate relationship. Defendant never brought Beltran over to Rodriguez's house, nor had Rodriguez ever seen defendant with Beltran. When Rodriguez started dating Beltran, he believed that she was no longer in a relationship. Rodriguez stated that if he had known defendant had dated Beltran before he met her, he would not have started dating her.
One night Rodriguez dropped Beltran off at her mother's house and defendant was there waiting in his car. Defendant used his car to block Rodriguez's ability to leave; he got out and kicked Rodriguez's driver's side car door while Rodriguez was still in the vehicle and Beltran was in the passenger seat. The three of them talked and defendant asked Beltran why she was doing this. Rodriguez described defendant as upset but calm and not angry. Defendant told Rodriguez he was not going to do anything because of his brother, but Rodriguez took that as a threat. Defendant told Beltran to go inside the house but she did not want to-she looked nervous. Beltran then left and went inside her mother's house and defendant followed her after moving his car so Rodriguez could leave. Rodriguez explained that this was when he learned that he and defendant were dating the same person. Rodriguez ended his relationship with Beltran after the confrontation.
Rodriguez continued to see defendant at work but they did not discuss what happened. Rodriguez spoke with Beltran one additional time on the phone. Beltran handed the phone to defendant so Rodriguez could tell defendant he was not feeling okay with what happened. Rodriguez told defendant he did not know defendant and Beltran were together. Rodriguez apologized and said he felt bad about dating Beltran after learning that she and defendant may not have broken up. Defendant responded that what they were doing was wrong. Again, he was upset but not angry. They continued to see each other at work, but defendant stopped going to Rodriguez's house and they did not talk about Beltran. Defendant was never loud or angry with Rodriguez and never made any kind of threat to Rodriguez. Rodriguez believed the issue had been resolved or squashed. Rodriguez eventually forgot about what happened with Beltran and trusted everything was okay with defendant.
On the day of the incident, Rodriguez dropped his daughters off at the babysitter and picked up Leon to go to work. Rodriguez said he was traveling at 75 miles per hour on his way to work when he saw defendant speed to catch up with him and then slow down to match his speed. Defendant was in the car on his left, with the window down, pointing a firearm at him. Rodriguez looked to his left, saw defendant, heard one shot, felt confusion and was knocked out. The shot hit him on the left side of his jaw. Rodriguez fell to his right side over Leon in the passenger seat. Rodriguez heard Leon scream. Leon called 911 and Rodriguez heard him saying "they shot [Rodriguez]." Rodriguez sent text messages to his brother Adrian saying, "It was [defendant]. I had issues with him." Multiple apparent blood stains were observed on Rodriguez's cell phone and all over the driver's side and front bumper of his vehicle and windshield. A bullet hole was discovered in the driver's side window.
After losing so much blood, Rodriguez passed out and remained in a coma for 42 days. Rodriguez said he had not spoken with defendant in the days leading up to this incident. Defendant did not say anything to Rodriguez when he shot him, nor did he pull over to help Rodriguez after he was shot. After waking from his coma, officers met with Rodriguez but he could not speak because his mouth was wired shut. He had to communicate by writing his responses. Since the incident, Rodriguez has had more than 10 surgeries to fix the injuries to his face, and more surgeries are needed. The doctors took part of Rodriguez's leg bone to construct a jawbone. Rodriguez cannot swallow anymore and drools now because he only has a little bit of his tongue left. He cannot eat or drink and has a tube in his stomach. Rodriguez has gone to therapy to learn how to talk again.
Sergeant Alcaraz spoke with defendant before he was placed under arrest. Alcaraz told him he was named as the shooter in this incident and he responded, "I don't understand why they would make me the subject or name me the subject when we're good friends." Defendant denied shooting Rodriguez. Defendant explained there was a misunderstanding that occurred a few months prior to this incident where Rodriguez was involved with defendant's ex-girlfriend at the time. Rodriguez did not realize Beltran was defendant's woman. It was not serious, Rodriguez apologized and defendant was trying to move on and work on his relationship with Beltran. Defendant said he went to work on the day of the incident.
However, defendant eventually agreed to lead officers to a field where the loaded firearm, a ski mask and cell phone were found. Defendant was placed under arrest after the firearm was located. Defendant's residence was searched and ammunition was located in his bedroom. Defendant's vehicle was searched and a gold Motorola cell phone was located on the driver's side floorboard.
After being placed under arrest, defendant waived his Miranda rights and agreed to be interviewed by Officer Hipolito Pelayo and Sergeant Alcaraz. Defendant said he knew Rodriguez for about three years and they were friends. Defendant was having marital problems and had been separated from his wife for about three months when he found out Rodriguez was talking to his wife. Defendant spoke with Rodriguez about it and said that Rodriguez apologized. Defendant wrote a letter to Rodriguez at the end of his interview. The letter to Rodriguez stated: "From the bottom of my heart, I wish that you were well. I truly know that this is not the best situation. I'm sorry that you're not in the best health situation, but I regret having done this damage. [¶] I believe you understand because of what you also did and tried to make fun of me. Having been considered a friend to all my family and because of this .... [¶] ... [¶] Because of this, I thought things wrong and truly I ask for forgiveness and I hope to know that you . . . your health situation improves and can move forward in life because I ruined mine. [¶] Also, I hope that you stop acting bad in life so that something of this magnitude doesn't happen again. I truly apologize and I hope you recover soon."
The parties entered several stipulations:
"One, there were several items found by CHP officers in the berry field near Avenue 8 and Road 192, including a cell phone, a firearm, and a ski mask. [¶] ... [¶]
"Three, the firearm found was an FNH, 57 -- 5.7 .28 caliber pistol with a serial number of 386206964 and was labeled as CHP item number 8.
"Number four, the ski mask was labeled as CHP item number 7.
"Number 5, both the FNH 5.7 firearm, item 8, and the ski mask, item 7, found in the berry field were properly preserved by CHP in appropriate evidence containers.
"Six, Officer Bennett properly transported items 7 and 8 to the Kern County Regional Crime Lab for DNA testing. [¶] ... [¶]
"Eight, a known reference sample or buccal swab was collected from [defendant] by Officer Bravo on June 27th of 2019.
"Nine, the known reference sample belonging to the defendant was properly preserved and transported to the Kern County Regional Crime Lab for use in DNA testing.
"Ten, biological stain swabs of the nose and mouth areas of the ski mask, item 7, were collected at the Kern Regional Crime Lab to use for DNA testing.
"Eleven, biological stain swabs of the grip slide and trigger of the FNH firearm . _ were collected at the Kern County Regional Crime Lab for use for DNA testing.
"Twelve, the chain of evidence for biological swabs collected from the ski mask, item 7, and the firearm, item 8, for DNA testing remains intact and all testing and results are accurate and reliable.
"Thirteen, DNA criminalist Brooke Ramirez performed the DNA analysis of the biological swabs of the nose and mouth area of the ski mask, item 7.
"Fourteen, the results of the DNA testing found that the DNA source on the ski mask, item 7, was a single source.
"Fifteen, the results of the DNA testing of the ski mask, item 7, found from Jesus Rojo Lopez, the defendant, cannot be excluded as a potential contributor to the DNA profile obtained from this item.
"Sixteen, DNA criminalist Brooke Ramirez performed the DNA analysis of the biological swab of the grip slide and trigger of the FNH firearm, serial number 386206964, item 8.
"Seventeen, the DNA profile of item 8, the firearm, is a mixture.
"Eighteen, the DNA testing found that [defendant] cannot be excluded as a potential contributor to the DNA profile obtained from item 8, the firearm."
Defendant was charged with attempted murder (§§ 664/187, subd. (a); count 1), alleging that defendant committed the attempted murder willfully and with deliberation and premeditation (§ 189) and that defendant had personally and intentionally discharged a firearm which caused great bodily injury to another person (§ 12022.53, subd. (d)); two counts of assault with a firearm (§ 245, subd. (b); counts 2 &3), count 2 included enhancements for personal infliction of great bodily injury (§ 12022.7) and personal use of a firearm (§ 12022.5, subd. (a)) and count 3 included an enhancement for personal use of a firearm (§ 12022.5, subd. (a)). Defendant was also charged with discharging a firearm at a motor vehicle (§ 246; count 4), alleging he intentionally discharged a firearm which proximately caused great bodily injury (§ 12022.53, subd. (d)); aggravated mayhem (§ 205; count 5), alleging he intentionally discharged a firearm which proximately caused great bodily injury (§ 12022.53, subd. (d)) and personally used a firearm (§ 12022.5, subd. (a)); and carrying a loaded firearm on his person and in a vehicle while in a public place, a misdemeanor (§ 25850, subd. (a); count 6).
The jury found defendant guilty of counts 2, 3, 4, and 6. The jury found all enhancements for these counts to be true. As to count 5, the jury found defendant not guilty of aggravated mayhem (§ 205), but guilty of the lesser included offense of mayhem (§ 203) including the allegation that he personally used a firearm (§ 12022.5, subd. (a)). The jury was unable to reach a verdict on count 1. The court declared a mistrial on count 1, which was dismissed on the People's motion. The jury also found true the following aggravating factors: that the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)); the defendant was armed with or used a weapon at the time of the commission of the crime (rule 4.421(a)(2)); the victim(s) were particularly vulnerable (rule 4.421(a)(3)); and the manner in which the crime was carried out indicated planning, sophistication, or professionalism (rules 4.421(a)(8)).
Hereinafter, all undesignated rules are to the California Rules of Court.
The court sentenced defendant to the middle term of five years in state prison for count 4, plus 25 years to life for intentionally discharging a firearm and causing great bodily injury. The trial court imposed but stayed the upper terms on counts 2, 3, 5, and 6 pursuant to section 654.
DISCUSSION
I. The Trial Court Did Not Err When it Denied Defendant's Motion to Suppress Based on a Miranda Violation
Defendant claims the trial court prejudicially erred in denying his motion to suppress the statements he made during his police interview on the grounds they were obtained in violation of Miranda. The People disagree and contend that defendant did not make a clear, unambiguous invocation of his right to counsel and that even so, any error is harmless. We agree with the People that defendant did not make a clear or unambiguous invocation of his right to counsel and conclude the trial court did not err in denying his motion to suppress.
A. Relevant Factual and Procedural History
Defendant moved to suppress statements made during a police interview alleging a Miranda violation and the trial court held an Evidence Code section 402 hearing. At the hearing, the People played a recording of defendant's first interview, which was conducted in Spanish, and provided the court with a corresponding transcript translated into English. The English translation of defendant's interview was admitted as court exhibit 1, as well as the disc with the audio recording of the interview in Spanish.
On appeal, the People submitted their own transcript of the interview in Spanish and their own translation of the interview into English, which is slightly different from the one before the court at the hearing. The People contend there were errors in the English translation offered at the hearing. However, appellate courts are generally limited in their review to matters that are included in the record from the proceedings below and may not consider other matters. (People v. Pearson (1969) 70 Cal.2d 218, 221-222, fn. 1.) Since the trial court relied on and considered the English translation marked as court exhibit 1, this is the translation we consider on this appeal.
The pertinent portion of the interview begins when Officer Pelayo read defendant his Miranda rights and the following interaction occurred:
"[Pelayo]: [S]ince you're detained, you're under arrest right now, you have rights. Okay? And I have to read you those rights. Okay? Um, do you understand that you have the right to remain silent? You understand?
"[Defendant]: Mm-hm.
"[Pelayo]: Anything you say can be used aga- in your-against you in court.
"[Defendant]: Mm-hm.
"[Pelayo]: Understand? You have the right to have a lawyer present before and during questioning. You understand?
"[Defendant]: Mm-hm.
"[Pelayo]: Okay. If you can't pay for a lawyer, one will be assigned to you free of charge before being questioned, if you wish. Understand?
"[Defendant]: It would be good.
"[Pelayo]: What?
"[Defendant]: It would be good.
"[Pelayo]: You want a lawyer?
"[Defendant]: Well, yes. Well, yes, no?
"[Pelayo]: I can't understand you.
"[Defendant]: I think that it would be good, I mean, it's a lot of things that don't.
"[Pelayo]: Okay.
"(Crosstalk)
"[Pelayo]: Okay. Do you have someone you want to call?
"[Defendant]: No.
"[Pelayo]: Okay. Do you want, uh, a lawyer then? You don't know- you don't want to - so then, you're saying that you don't want to talk?
"[Defendant]: No, honestly, no.
"[Pelayo]: Okay. You understand that we're not going to talk[] about the incident anymore, until you get a lawyer?
"[Defendant]: Oh, yes, talk, no, no."
"[Pelayo]: Okay. All right. Well, he-he's hiring an attorney so (unintelligible).
"[Alcaraz]: You said you want to talk. So you want to speak[?]
"[Defendant]: I mean, yes.
"[Alcaraz]: You want to talk. Then, you do want to talk about us what- regarding what happened today?
"[Defendant]: Well. We already talked about it, but it's just that, that there's a lot (unintelligible).
"[Alcaraz]: When-when we were talking about it earlier it was just, we were voluntarily, um, getting information and details to figure out what happened.
"[Defendant]: Yes.
"[Alcaraz]: But like Officer Pelayo explained to you right now, that's why the following, he read you your-your rights.
"[Defendant]: Mm-hm.
"[Alcaraz]: Like you told us earlier, you wanted to clear things up and you think that it's best to be honest and to talk to us. That's why we're here. We're giving you the opportunity of your- your-your rights. And you understood them, right?
"[Defendant]: Yes.
"[Alcaraz]: And-and that's why we're here. And, you do want to talk to us?
"[Defendant]: Yes.
"[Alcaraz]: You do want to talk to us?
"[Defendant]: Uh-huh.
"[Alcaraz]: Okay. Okay.
"[Pelayo]: Okay."
Officer Pelayo testified that he is fluent in the Spanish language and that it is his first language but that he never lived outside the United States. Pelayo explained there is a difference in understanding Spanish when you learn it as a native from Mexico versus learning it while living in California. Pelayo said he speaks more of a Spanglish style, where defendant appeared to speak more of a proper Spanish. Pelayo is not able to understand some people from Mexico who speak the proper language.
Officer Pelayo said defendant's tone when he responded, "It would be good" to the statement, "If you can't afford a lawyer, one will be appointed for you before any questioning," gave Pelayo the impression that defendant was unsure about what he wanted. Pelayo said that was why he asked defendant, "What?" for clarification and then asked him specifically, "Do you want a lawyer?" Defendant's response, "Well, yes," was said in a manner that was "like, well, maybe." At some point Pelayo thought defendant wanted a lawyer because he responded, saying "hablen." Pelayo explained that "hablen" has different meanings and can mean call or talk. Pelayo said, "well, he's hiring an attorney," because he thought that meant he wanted to call an attorney, but Sergeant Alcaraz picked up a different interpretation and further clarified it with defendant. Defendant never said specifically that he wanted an attorney.
Sergeant Alcaraz lived in Mexico for about five or six years before coming to America. He explained there is a difference between the native Mexican language and the Spanish that is taught in American schools. In Mexico, the undertones and true meaning of the language is important versus in America, where it is more Spanglish with a lot of slang. In interviewing defendant, Alcaraz had the impression that defendant's language was as a native of Mexico. When defendant was asked if he wanted an attorney, one would be appointed if he could not afford one, Alcaraz said defendant's responses, that "It would be good" and "Well, yes," were made in more of a questioning manner.
Alcaraz explained his impression of defendant's interaction when Pelayo said, "Okay. You understand we're not going to talk about the incident anymore until you get a lawyer?" and defendant said, "Oh, yes, talk. No, no." Alcaraz said, "To me, that means yes, let's speak." Meaning, "I don't want an attorney. I want to talk." Alcaraz also based his interpretation of defendant's mannerisms and facial expressions to mean "no, no, let's talk" rather than "okay, let's not talk." After Pelayo said, "[All] right. Well, he's hiring an attorney," Alcaraz realized that he and Pelayo heard something different from defendant and believed clarification was necessary. Alcaraz explained that was why he asked defendant more questions such as, "You want to talk so you want to speak?" and defendant answered, "I mean, yes." Defendant did not say I want an attorney, nor did he object to speaking with the officers, but continued to agree to speak with them. Alcaraz asked defendant if he understood his rights and he said that he did, and Alcaraz asked several times whether he wanted to talk with them, and defendant responded that he did.
The trial court commented that this was not an easy issue. The main question for the court was whether there was an "unequivocal, unambiguous invocation to the right to counsel." The court noted there were two well-qualified, intelligent, well-speaking officers that understood two languages fluently, that initially had two different impressions, but who came to the same impression upon further analysis. The court also noted that a police officer's subjective view concerning whether the defendant waived his right is irrelevant to a Miranda analysis. The court listened to the recorded interrogation a number of times to determine what defendant believed he was waiving and what he understood.
The court made the following determination: there was "not an unequivocal, unambiguous invocation about the lawyer, and there's an express waiver about speaking. In fact, even after the question as to whether he invoked as to a lawyer or not, he being [defendant], still seemed to indicate that he wanted to speak. This is not an easy call here to make. [¶] Case law, frankly, is all over the place. I think there may have been a misunderstanding. Certainly[,] different officers understood different things. What they understand in their view, whether there was a waiver or not, is not relevant. [¶] The question is would a reasonable officer, when detaining [defendant], believe that objectively that he understood his rights and he waived his rights unequivocally and unambiguously. I think the answer is no, I [do not] think he did."
B. Standard of Review
"On review of a trial court's decision on a Miranda issue, we accept the trial court's determination of disputed facts if supported by substantial evidence, but independently decide whether the challenged statements were obtained in violation of Miranda." (People v. Davis (2009) 46 Cal.4th 539, 586, as modified (Aug. 26, 2009); People v. Hensley (2014) 59 Cal.4th 788, 809; accord, People v. Bradford (1997) 14 Cal.4th 1005, 1033 ["We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported."]; People v. Johnson (1993) 6 Cal.4th 1, 25, disapproved on another ground in People v. Rogers (2006) 39 Cal.4th 826, 879-880; People v Kelly (1990) 51 Cal.3d 931, 947.) Where evidence is undisputed, reviewing courts review that evidence independently to determine whether there was a Miranda violation,"' "giv[ing] great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.'" (Kelly, at p. 947; Bradford, at p. 1033; see People v. Duren (1973) 9 Cal.3d 218, 238; People v. Silva (1988) 45 Cal.3d 604, 630.)
C. Applicable Law
Under Miranda, a suspect may not be subjected to custodial interrogation unless the suspect has been apprised of his rights and has knowingly, intelligently, and voluntarily waived them. (People v. Bacon (2010) 50 Cal.4th 1082, 1104-1105.) Once a suspect invokes the right to remain silent or the right to counsel," 'the interrogation must cease.'" (People v. Jackson (2016) 1 Cal.5th 269, 339.) The request should be "understood as ordinary people would understand them." (Connecticut v. Barrett (1987) 479 U.S. 523, 529.) The test is an objective one that asks what a reasonable officer would have understood. (Id. at p. 529.)
"' "If a suspect indicates 'in any manner and at any stage of the process,' prior to or during questioning, that he or she wishes to consult with an attorney, the defendant may not be interrogated." '" (People v. Storm (2002) 28 Cal.4th 1007, 1021.) Rather," 'the interrogation must cease until an attorney is present.'" (Edwards v. Arizona (1981) 451 U.S. 477, 482.) Moreover if, in violation of this rule, interrogation continues of an in-custody suspect who has asked for but has not been provided with counsel, the suspect's responses are presumptively involuntary and therefore "are inadmissible as substantive evidence at trial." (People v. Cunningham (2001) 25 Cal.4th 926, 993; People v. Sapp (2003) 31 Cal.4th 240, 266 (Sapp), as modified (Oct. 15, 2003).) However, "[t]he rule that interrogation must cease because the suspect requested counsel does not apply if the request is equivocal; '[r]ather, the suspect must unambiguously request counsel.'" (Sapp, at p. 266; Davis v. United States (1994) 512 U.S. 452, 459; People v. Davis, supra, 46 Cal.4th at p. 587.)
"[A] suspect's invocation of Miranda rights must be 'unambiguous[]' from the perspective of a reasonable officer." (People v. Flores (2020) 9 Cal.5th 371, 417 (Flores), as modified (June 24, 2020); Berghuis v. Thompkins (2010) 560 U.S. 370, 381.) "If 'a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right,' then the officer need not cease all questioning immediately." (Flores, at p. 417; Davis v. United States, supra, 512 U.S. at p. 459.) "Whether or not a reasonable officer would perceive a suspect's statement as ambiguous may depend on context." (Flores, at p. 417; People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218; People v Williams (2010) 49 Cal.4th 405, 428-429 (Williams); People v. Sanchez (2019) 7 Cal.5th 14, 49-50.)" '[W]hen a suspect under interrogation makes an ambiguous statement that could be construed as an invocation of his or her Miranda rights, "the interrogators may clarify the suspect's comprehension of, and desire to invoke or waive, the Miranda rights." '" (Williams, at p. 428; Flores, at p. 417.)
D. Analysis
Defendant claims that he invoked his right to counsel when he responded, "It would be good" twice to the statement that if you cannot afford a lawyer one will be provided and "Well, yes. Well, yes, no?" to the question do you want a lawyer. Defendant contends that by these statements, he "unambiguously and unequivocally requested an attorney" and the police should have stopped questioning him at that point. The People disagree and contend that defendant did not make an unequivocal, unambiguous invocation of his right to counsel, and that even if he did, any error is harmless.
Although the People dispute portions of the English translation relied on by the court at the hearing and offer for the first time another version of the English translation, "an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration." (In re James V. (1979) 90 Cal.App.3d 300, 304; In re Zeth S. (2003) 31 Cal.4th 396, 405.) Appellate courts are generally limited in their review to matters that are included in the record from the proceedings below and may not consider other matters. (People v. Pearson, supra, 70 Cal.2d at pp. 221-222, fn. 1.) The People are asking this court to consider facts which were not before the trial court or, otherwise stated, not part of the record at the time the judgment was entered. This an appellate court cannot do when it reviews the correctness of a judgment. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) At the hearing, the parties discussed the translation, the court accepted the modifications in court exhibit 1, and that is the record we review. (See People v. Davis, supra, 46 Cal.4th at p. 586 [we accept the trial court's determination of disputed facts if supported by substantial evidence]; People v. Hensley, supra, 59 Cal.4th at p. 809.)
To the extent the People request the court to augment the record," 'an appellate court generally is not the forum in which to develop an additional factual record.'" (People v. Castillo (2010) 49 Cal.4th 145, 157, quoting People v. Peevy (1998) 17 Cal.4th 1184, 1207 [rejecting defendant's attempts in the appellate court to present evidence of widespread police misconduct]; see People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [record on appeal will not be augmented to add material not a proper part of the record in the trial court]; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 ["As a general rule, documents not before the trial court cannot be included as a part of the record on appeal."].)
Next, we engage in a de novo review of the legal question of whether the statements at issue were ambiguous or equivocal. (See Bacon, supra, 50 Cal.4th at p. 1105.) As explained below, we conclude that neither of defendant's challenged responses "unambiguously and unequivocally" invoked defendant's right to counsel.
Several California cases have addressed similar instances where a defendant has claimed his response "unambiguously and unequivocally" invoked his right to counsel. In Bacon, the court explained that the defendant's statement, "I think it'd probably be a good idea for me to get an attorney" had "several ambiguous qualifying words" such as "I think," "probably," and "it[ would]." Thus, the court did not consider his statement to be a sufficiently clear invocation of the right to counsel. (Bacon, supra, 50 Cal.4th at p. 1105.) Similarly, here, defendant's statement, "it would be good," in response to being informed that if he could not afford an attorney, one would be provided, contained the same ambiguous words "it would." Defendant's use of such ambiguous qualifying words is not a clear invocation of the right to counsel. (See id. at p. 1105.)
In Sapp, the court considered whether the defendant's mention of having an attorney rose to the level of invoking his right to counsel under Miranda. While detained on another matter, law enforcement officers met with the defendant to question him about some murders he confessed to and advised him of his Miranda rights. (Sapp, supra, 31 Cal.4th at p. 264.) "[The] defendant said he understood those rights but added that if the detectives wanted to talk about murders 'maybe I should have an attorney.'" (Ibid.) Law enforcement officers continued to question the defendant for about two hours. (Ibid.) After a two-hour dinner break, questioning resumed until the defendant said he" 'wanted to have an attorney'" and the questioning stopped. (Ibid.) The court concluded the defendant's initial effort to invoke his right to counsel "was equivocal and therefore inadequate to invoke the rule that all questioning must cease." (Id. at p. 268.) Here, defendant's response to the question about having an attorney provided if he could not afford one saying, "it would be good," was similarly ambiguous. The record shows that defendant's response of "Well, yes. Well, yes, no?" to whether he wanted a lawyer was stated more as a question, like a maybe. Like in Sapp, defendant's response appears more equivocal and inadequate to constitute an invocation of his right to counsel.
As the high court stated in Davis v. United States, an officer is not required to stop questioning a suspect when "a suspect makes a reference to an attorney that is ambiguous or equivocal." (Davis v. United States, supra, 512 U.S. at p. 459.) The suspect "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." (Ibid.) Davis noted that "when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney," but declined "to adopt a rule requiring officers to ask clarifying questions." (Id. at p. 461; Bacon, supra, 50 Cal.4th at p. 1105.)" '[W]hen a suspect under interrogation makes an ambiguous statement that could be construed as an invocation of his or her Miranda rights, "the interrogators may clarify the suspect's comprehension of, and desire to invoke or waive, the Miranda rights." '" (Williams, supra, 49 Cal.4th at p. 428; Flores, supra, 9 Cal.5th at p. 418, as modified (June 24, 2020).) "In those instances, the protective purpose of the Miranda rule is not impaired if the authorities are permitted to pose a limited number of follow up questions to render more apparent the true intent of the defendant.'" (Flores, at p. 418; Williams, at p. 429; see, e.g., People v. McGreen (1980) 107 Cal.App.3d 504, 522, disapproved on other grounds in People v. Wolcott (1983) 34 Cal.3d 92, 101 [head shake, followed by verbalized "no," unclear in context; permissible for officer to clarify suspect's meaning]; Medina v. Singletary (11th Cir. 1995) 59 F.3d 1095, 1105 [defendant's "[n]o" unclear in context; under circumstances, "[t]o prohibit a clarifying question ... would 'transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity' "].)
Here, defendant's responses were equivocal, and the officers were unsure of defendant's intention to request an attorney. Contrary to what defendant claims, his response was not a clear "yes" but "Well, yes. Well, yes, no?" which was spoken in an uncertain, questioning manner. Officer Pelayo explained that he could not understand defendant's response and that defendant's tone was "uncertain" and more in the form of a question such as "well, yeah, maybe." Pelayo's question, "Do you want, uh, a lawyer then? You don't know-you don't want to-so then, you're saying that you don't want to talk?" was followed by defendant's response, "No, honestly, no." It is unclear which question defendant is responding to since Pelayo asked multiple questions. It could have been no, I do not want a lawyer, or no, I do not want to talk. The question, "You understand that we're not going to talk about the incident anymore, until you get a lawyer?" was answered by defendant saying, "Oh, yes, talk, no, no." It was at this point Pelayo and Alcaraz arrived at two different interpretations of defendant's intention. Again, it was unclear whether defendant was saying, yes, I want to talk and no to waiting on a lawyer, or yes to a lawyer and no to anymore talking. Even the two fluent Spanish speaking officers disagreed on what defendant meant. Because defendant's statements were ambiguous and unclear, law enforcement was permitted to further question defendant in order to find his true intentions. (Flores, supra, 9 Cal.5th at p. 418; Williams, supra, 49 Cal.4th at p. 429; Davis v. United States, supra, 512 U.S. at pp. 461462.) Upon further questioning, it became clear defendant wanted to continue to speak with officers.
The record does not support defendant's interpretation that the "no" in "Well, yes. Well, yes, no?" means "isn't that so?" Although defendant argues that "no" is commonly used rhetorically or to seek confirmation, Alcaraz testified that as a native Spanish speaker, and based on the context, defendant's response was more of a question, and Pelayo explained defendant's response translated to "well, yeah, maybe." Additionally, the court listened to the audio recording of the interview numerous times and ultimately concluded a reasonable officer would conclude defendant did not make an unequivocal, unambiguous invocation of the right to speak with a lawyer." 'We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported.'" (People v. Bradford, supra, 14 Cal.4th at p. 1033.) Here, we agree that based on the record a reasonable officer could conclude defendant's response was ambiguous and equivocal; therefore, Miranda was not violated, and the court did not err in denying defendant's motion to suppress.
We do not consider defendant's reference to a website regarding the meaning of "no" as used in the Spanish language. "An appeal is 'limited to the four corners of the [underlying] record on appeal....'" (See People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1 (Waidla); In re Carpenter (1995) 9 Cal.4th 634, 646.)
We disagree with defendant's claim that the statement made in Smith v. Illinois (1984) 469 U.S. 91 is "virtually indistinguishable" from defendant's statement in this case. In Smith, after officers told the defendant he had a right to counsel, the defendant stated, "Uh, yeah, I'd like to do that." (Id. at p. 93, italics omitted.) The court did not decide whether the defendant's statement was sufficiently clear to invoke his right to counsel. Rather, Smith was limited to reviewing the appellate court's decision which relied only on the defendant's subsequent responses to the continued police questioning in concluding that the defendant's statements were equivocal. (Id. at p. 97.) The high court in Smith "[did] not decide the circumstances in which an accused's request for counsel may be characterized as ambiguous or equivocal as a result of events preceding the request or of nuances inherent in the request itself, nor [did it] decide the consequences of such ambiguity or equivocation. [It held] only that, under the clear logical force of settled precedent, an accused's post request responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself." (Id. at p. 99.) Therefore, defendant's reliance on Smith is misplaced.
Even considering if defendant's statements were admitted in violation of Miranda, any error was harmless beyond a reasonable doubt. (See People v. Cahill (1993) 5 Cal.4th 478, 510; Chapman v. California (1967) 386 U.S. 18, 23.) The record contains overwhelming evidence of defendant's guilt on counts 2 through 6, all relating to his use of the firearm, even absent his statements made during the police interview. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 60 [evidence of intent to kill was overwhelming, apart from defendant's statements].) Rodriguez testified that, while he was driving to work, he saw defendant pull up beside his car, point a gun at him and shoot. After being shot, Rodriguez sent a text message to his brother telling him that it was defendant who shot him. Officers observed that Rodriguez's jaw was blown off, and his front passenger, Leon, was also hit by the bullet. A bullet hole was discovered in the driver's side window, corroborating Rodriguez's testimony. As such, there was substantial evidence aside from defendant's statements to support the firearm convictions.
Evidence also showed defendant had motive to shoot Rodriguez and was aware of his guilt. Defendant was upset with Rodriguez because he had dated his wife or girlfriend. When defendant saw Rodriguez and Beltran together, defendant blocked defendant's car and kicked the driver's side door while they were inside the vehicle. At trial, the jury was instructed that, if they found defendant had a motive, they could use that evidence as a factor indicating guilt. The jury was also instructed they may use the finding that defendant tried to hide evidence to show he was aware of his guilt. Here, the evidence showed that defendant tried to hide his firearm and cell phone by burying it in the field. The jury was also given the instruction that it could use false or misleading statements as evidence of his consciousness of guilt. The record shows defendant originally denied having a second cell phone and a firearm. Defendant finally admitted to owning both and eventually led the officers to the location where he had hidden the firearm and cell phone. The evidence showed that defendant could not be excluded as a potential contributor of the DNA found and tested on the firearm. Considering the totality of the evidence, substantial evidence demonstrates that even if the interview had been excluded, the result of the proceedings would be the same. Thus, there can be no reasonable doubt that defendant would have been convicted even if his statements were not admitted. Accordingly, defendant did not suffer prejudice so even if the court erred in admitting the challenged interview, any error was harmless.
While it is true defendant's statements were relied on by the prosecution, that in itself does not create prejudice. For the charges of assault with a firearm, discharging a firearm at a motor vehicle, mayhem and carrying a loaded firearm in a public place, the People primarily relied on trial testimony and other evidence discovered during the investigation. (C.f., People v. Willoughby (1985) 164 Cal.App.3d 1054, 1064 [finding erroneous admission of evidence prejudicial because it "was the focal point of the prosecution's case"].)
Defendant's reliance on Willoughby is readily distinguishable. In that case, the admission of testimony from an unalleged victim was offered to prove the defendant's disposition to sexually molest children, which was prohibited by Evidence Code section 1101, subdivision (a). (People v. Willoughby, supra, 164 Cal.App.3d at p. 1064.) On review, the court concluded the testimony was prejudicial as the focal point of the case, and that reversal was required where the court failed to give proper limiting instructions on the use of such testimony and gave erroneous instructions that the testimony could be used to prove the defendant's intent in sexually molesting the alleged victim. (Ibid.) Here, the prosecutor did rely on defendant's interview for the attempted murder charge, but did not focus solely on it for the other counts. There was overwhelming, independent evidence that proved defendant's guilt such as Rodriguez identifying defendant as the shooter several times, Rodriguez sending text messages that defendant shot him, and defendant's conduct and statements after the shooting such as hiding the firearm and lying about it. Consequently, we are not convinced that defendant's statements made during the interviews were critical to the jury's verdict.
II. The Trial Court Did Not Err by Not Instructing on the Lesser Included Offense of Grossly Negligent Discharge of a Firearm
Defendant contends the trial court prejudicially erred in failing to instruct the jury on grossly negligent discharge of a firearm as a lesser included offense of shooting at an occupied motor vehicle. The People contend there was no evidence defendant acted negligently; therefore, the court was not required to instruct on the lesser offense. We conclude the trial court did not err by failing to instruct on the lesser included offense of grossly negligent discharge of a firearm.
A. Relevant Procedural History
Defense counsel requested CALCRIM No. 970, the instruction on grossly negligent discharge, on the grounds it was a lesser included offense. He stated, "I think the lesser would be 970, then we discussed that -- I think the [c]ourt didn't think that there were any facts. I stated my facts and we decided it was not going to be given."
Both the trial court and defense counsel stated CALCRIM No. 970 did not apply because the lesser offense only applied in cases involving shooting into a dwelling.Thus, the facts did not support the instruction.
Defendant mistakenly contends the trial court erred in concluding that grossly negligent discharge of a firearm was not a lesser included offense of shooting at an occupied motor vehicle. Rather, the court acknowledged that section 246.3 was a lesser included offense but concluded it was inapplicable to the facts of the case.
B. Standard of Review and Applicable Law
A trial court's decision not to instruct on a lesser included offense is reviewed de novo and without deference. (Waidla, supra, 22 Cal.4th at p. 733.) We construe the evidence in the light most favorable to the defendant. (People v. Stewart (2000) 77 Cal.App.4th 785, 795-796; People v Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5.)
"An offense is a lesser included offense of another for purposes of section 1159 if it meets either of the following tests: 1) 'Legal elements' test: The greater statutory offense cannot be committed without committing the lesser offense because all the elements of the lesser offense are included in the elements of the greater; 2) 'Accusatory pleadings' test: The charging allegations of the accusatory pleading include language describing the offense in such a way that if committed in that manner the lesser offense must necessarily be committed." (People v. Stewart, supra, 77 Cal.App.4th at p. 795; People v. Clark (1990) 50 Cal.3d 583, 636.) "It is error, however, to instruct on a lesser included offense when a defendant, if guilty at all, could only be guilty of the greater offense, i.e., when the evidence, even construed most favorably to the defendant, would not support a finding of guilt of the lesser included offense but would support a finding of guilt of the offense charged." (Stewart, at pp. 795-796; People v. Hawkins (1995) 10 Cal.4th 920, 954, abrogated on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 109-110.)
"A trial court must instruct the jury sua sponte on an uncharged offense that is lesser than, and included in, a greater offense with which the defendant is charged 'only if [citation] "there is evidence"' (People v. Memro (1995) 11 Cal.4th 786, 871, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2]), specifically, 'substantial evidence' (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on another ground in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1),' "which, if accepted .. ., would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser' (People v. Memro, supra, 11 Cal.4th at p. 871, italics in original)." (People v. Waidla, supra, 22 Cal.4th at p. 733; People v Lopez (1998) 19 Cal.4th 282, 287-288; see, e.g., People v. Breverman (1998) 19 Cal.4th 142, 154-156 [must instruct on lesser included offense if substantial evidence supports the lesser and not the greater].) "To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, 'evidence from which a rational trier of fact could find beyond a reasonable doubt' that the defendant committed the lesser offense." (People v. Mendoza (2000) 24 Cal.4th 130, 174; Berryman, at p. 1081.)
"It is settled the trial court need not, even if requested, instruct the jury on a lesser and included offense where the evidence establishes if the defendant was guilty at all, he [or she] was guilty of the higher offense." (People v. Ellers (1980) 108 Cal.App.3d 943, 954; accord, People v. Moye (2009) 47 Cal.4th 537, 548.) "When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so." (People v. Webster (1991) 54 Cal.3d 411, 443; People v. Huggins (2006) 38 Cal.4th 175, 215.)
"Section 246 provides: 'Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle ... is guilty of a felony....' Section 246 is a general intent crime." (People v. Overman (2005) 126 Cal.App.4th 1344, 1356 (Overman); People v. Watie (2002) 100 Cal.App.4th 866, 879.)" 'As for all general intent crimes, the question is whether the defendant intended to do the proscribed act.'" (Overman, at p. 1356; People v. Jischke (1996) 51 Cal.App.4th 552, 556.)
"Section 246.3 provides: 'Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison.'" (Overman, supra, 126 Cal.App.4th at p. 1360.) Shooting a firearm in a grossly negligent manner requires: (1) defendant intentionally shot a firearm; (2) defendant shot the firearm with gross negligence; and (3) the shooting could have resulted in the injury or death of a person. (CALCRIM No. 970.)
"Any error in instructions on a lesser included offense in a noncapital case is subject to the Watson standard of review requiring reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of such error." (Stewart, supra, 77 Cal.App.4th at p. 796; People v. Breverman, supra, 19 Cal.4th at p. 165.)
C. Analysis
Defendant contends the trial court prejudicially erred when it failed to instruct the jury on discharge of a firearm in a grossly negligent manner as a lesser included offense. Defendant claims the court erroneously concluded that grossly negligent discharge of a firearm is not a lesser included offense of shooting at an occupied motor vehicle. The People do not dispute that discharge of a firearm in a grossly negligent manner (§ 246.3) is a lesser included offense of shooting at an occupied building or vehicle (§ 246). However, the People argue that the court was under no duty to instruct on the lesser offense since there was no substantial evidence that defendant could be guilty of only grossly negligent discharge of a firearm.
Courts agree that discharge of a firearm in a grossly negligent manner (§ 246.3) is a lesser included offense of shooting at an occupied building or vehicle (§ 246). (See People v. Ramirez (2009) 45 Cal.4th 980, 990 ["section 246.3(a) is a necessarily included lesser offense of section 246"]; Overman, supra, 126 Cal.App.4th at pp. 1360-1362 [§ 246.3 is a lesser included offense of § 246 under both the elements test and pleading test].)
Discharging a firearm at an occupied vehicle requires proof that a defendant maliciously and willfully discharged a firearm at an occupied vehicle. (§ 246.) For purposes of section 246, a defendant discharges a firearm at an occupied vehicle when "shooting either directly at or in close proximity to an inhabited or occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it." (Overman, supra, 126 Cal.App.4th at p. 1356.) The discharge of the firearm must occur "within the defendant's firing range." (People v. Ramirez, supra, 45 Cal.4th at p. 990.)
As a general intent crime," 'it is sufficient for a conviction if the defendant intentionally did that which the law declares to be a crime.'" (Overman, supra, 126 Cal.App.4th at p. 1356; In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437-1438.) Therefore, section 246 is violated when a defendant intentionally discharges a firearm at an occupied motor vehicle. (Overman, at p. 1356.)
" 'The crime of shooting at an occupied vehicle "is not limited to shooting directly at [the] occupied target." ([] Overman [, supra,] 126 Cal.App.4th [at pp.] 1355-1356.) Rather, the applicable statute "proscribes shooting either directly at or in close proximity to an . . . occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it." '" (People v. Bell (2019) 7 Cal.5th 70, 109, italics in original; People v. Phung (2018) 25 Cal.App.5th 741, 761.) In Bell, two witnesses described a shooting. The first witness, Perry, heard two shots and saw the shooter running towards his truck. A dent discovered in the passenger door suggested the vehicle had been hit. The second witness observed the defendant shoot at Perry and heard the defendant say he" 'shot at the trucker'" because he wanted to leave no witnesses. (Bell, at p. 109.) The Supreme Court stated that "to find [the] defendant guilty of section 246.3, subdivision (a) but not section 246, the jury would have had to find that [the] defendant's shots were not aimed at or" 'in close proximity to'" Perry's truck." (Ibid.; Phung, at p. 761; see People v. Ramirez, supra, 45 Cal.4th at p. 990.) The Bell court explained that the record contained "no evidence that [the] defendant fired aimlessly or into the air." (Bell, at pp. 109-110.) Therefore, our high court concluded "[t]here was no substantial evidence that [the] defendant was guilty only of a grossly negligent firearm discharge. The court had no sua sponte duty to instruct on this lesser offense." (Id. at p. 110.)
The facts of the instant case are similar to Bell. The evidence shows that Rodriguez saw defendant drive up next to his car, point a gun at him and then shoot. A bullet hole was found in Rodriguez's driver's side window, corroborating Rodriguez's testimony that defendant was aiming directly at him when he shot him. Defendant also confessed to waiting for and shooting Rodriguez. Defendant admitted he sped up next to Rodriguez's car, pointed the gun and shot once. Defendant admitted he was next to Rodriguez and pointed the gun, which corroborates Rodriguez's testimony defendant pulled up next to him and pointed the gun at him. Such evidence demonstrates Rodriguez's vehicle was in defendant's firing range when the shooting occurred and, therefore, defendant committed the act of firing at an occupied motor vehicle.
Applying the same reasoning in Bell, in order to find defendant guilty of section 246.3, subdivision (a), but not section 246, the jury would have had to find that defendant's shots were not aimed at or" 'in close proximity to'" Rodriguez's vehicle. (See People v. Bell, supra, 7 Cal.5th at p. 109.) The record contains no evidence that defendant fired aimlessly or into the air. Defendant's argument that to fire a gun from one moving vehicle to another requires some proficiency with firearms and there was no evidence defendant had firearm proficiency is speculation and assuming facts not in evidence. To argue that defendant could have been "firing above, behind or in front of the vehicle," ignores the substantial evidence that defendant shot either directly at or in close proximity to Rodriguez's vehicle. We reject as speculation unsupported by the evidence defendant's claim it was "by virtue of poor marksmanship in a moving vehicle, [that he] happened to strike Rodriguez.""' "Speculation is an insufficient basis upon which to require the giving of an instruction on a lesser offense." '" (Id. at p. 110; People v. Rogers (2009) 46 Cal.4th 1136, 1169; People v. Wilson (1992) 3 Cal.4th 926, 942.)" '[S]peculation is not evidence, less still substantial evidence.'" (Waidla, supra, 22 Cal.4th at p. 735; People v. Berryman, supra, 6 Cal.4th at p. 1081.) Nor does defendant's proficiency or lack thereof negate the general intent to aim at or" 'in close proximity to'" Rodriguez's vehicle. (See Bell, at p. 109.) We conclude there was no substantial evidence that defendant was guilty only of a grossly negligent firearm discharge, and therefore, the court had no sua sponte duty to instruct on this lesser offense. (Bell, at p. 110; Huggins, supra, 38 Cal.4th at pp. 215-217.)
Even if the court erred in failing to instruct on the lesser offense, any error was harmless. Under Watson, the judgment is affirmed unless it is reasonably probable the defendant would have obtained a more favorable result had the instruction been given. (Breverman, supra, 19 Cal.4th at pp. 164-178.) As explained above, there was no evidence that defendant committed only a mere negligent discharge of a firearm. On the other hand, there is substantial evidence to support the offense of shooting at an occupied vehicle. Under these circumstances, it is not reasonably probable that defendant would have been convicted of negligent discharge rather than shooting into an occupied motor vehicle if the jury had been instructed on the lesser offense. Consequently, any error was harmless.
Defendant's argument that the jury's inability to agree on the attempted murder charge means there was a conflict in the evidence as to where defendant was aiming fails. Attempted murder requires specific intent to kill, and discharge of a firearm is a general intent crime that only requires the defendant intended to do the proscribed act. (Overman, supra, 126 Cal.App.4th at p. 1356.) While the jury may not have agreed that defendant intended to kill Rodriguez, they clearly believed defendant intended to shoot at Rodriguez while driving. Whether or not defendant intended to kill Rodriguez does not "present a conflict as to exactly where [he] was aiming."
Defendant's argument that because he only shot once he did not intend to shoot Rodriguez with the expectation of personal injury or death is irrelevant. Section 246 only requires that a defendant intentionally discharge a firearm at an occupied motor vehicle, which is supported by substantial evidence. Because defendant cannot demonstrate it is reasonably probably defendant would have obtained a different result, his claim fails.
III. Defendant's Conviction Under Section 25850 Remains Constitutionally Valid
Defendant argues that his conviction of carrying a loaded firearm in public should be vacated in light of Bruen. Defendant argues that California's concealed carry license laws are unconstitutional in light of Bruen and that consequently, his conviction under section 25850 is likewise invalid. The People argue defendant lacks standing to raise this challenge. While the People concede that California's "good cause" requirement is unconstitutional, they argue that Bruen only invalidated the one requirement, and the criminal charge for having a loaded firearm on his person in a vehicle remains valid. We agree that section 25850 remains valid.
A. Standard of Review
"A defendant challenging the constitutionality of a statute carries a heavy burden: 'The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity.'" (People v. Fuiava (2012) 53 Cal.4th 622, 696.) "In analyzing a facial challenge to the constitutionality of a statute, we consider 'only the text of the measure itself, not its application to the particular circumstances of an individual.' [Citation.] 'On a facial challenge, we will not invalidate a statute unless it "pose[s] a present total and fatal conflict with applicable constitutional prohibitions." '" (People v. Alexander (2023) 91 Cal.App.5th 469, 474.)" 'The interpretation of a statute and the determination of its constitutionality are questions of law. In such cases, appellate courts apply a de novo standard of review.'" (Ibid.; People v. Lewis (2021) 11 Cal.5th 952, 961.)
B. Applicable Law
Section 25850 provides in relevant part: "A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory." (§ 25850, subd. (a).)
Carrying a loaded firearm in violation of this section is punishable as a felony or a misdemeanor. (§ 25850, subd. (c).) "Section 25850 does not apply to the carrying of any handgun by any person as authorized pursuant to Chapter 4 (commencing with Section 26150) of Division 5." (§ 26010.) Section 26150, subdivision (a), governs the issuance of a license to carry a firearm. It states: "When a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, the sheriff of a county may issue a license to that person upon proof of all of the following:
(1) The applicant is of good moral character.
(2) Good cause exists for issuance of the license.
(3) The applicant is a resident of the county or a city within the county, or the applicant's principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business.
(4) The applicant has completed a course of training as described in Section 26165."
Section 26155, subdivision (a) similarly provides: "When a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, the chief or other head of a municipal police department of any city or city and county may issue a license to that person upon proof of all of the following:
(1) The applicant is of good moral character.
(2) Good cause exists for issuance of the license.
(3) The applicant is a resident of that city.
(4) The applicant has completed a course of training as described in Section 26165."
C. Analysis
Defendant argues that California's "good cause" requirement for issuing a license is the functional equivalent of New York's "proper cause" standard which was invalidated. He contends that the licensing scheme is unconstitutional, and therefore, there can be no crime of carrying a loaded firearm without a license. The People contend defendant lacks standing to pursue his claim. Additionally, the People argue that California's license requirement remains constitutional pursuant to the severability doctrine. We shall assume arguendo that defendant has standing to assert his claim. (See, e.g., In re D.L. (2023) 93 Cal.App.5th 144, 158 (D.L.) [the principle that criminal defendants may raise a facial challenge to the statutory framework under which they are convicted has been adopted in other contexts].) We conclude defendant's constitutional challenge fails, as explained below.
In Bruen, the United States Supreme Court considered the constitutionality of New York's public firearm carry licensing scheme, requiring a show of "proper cause." (Bruen, supra, 597 U.S. at p. 12.) In order to obtain a license to possess a firearm at home or place of business, an applicant "must convince a 'licensing officer'-usually a judge or law enforcement officer-that, among other things, he is of good moral character, has no history of crime or mental illness, and that 'no good cause exists for the denial of the license.'" (Ibid.) Prior to Bruen, to secure a license to carry a firearm outside of the home or place of business for self-defense purposes, the applicant also needed to establish" 'proper cause,'" which New York courts interpreted as requiring" 'a special need for self-protection distinguishable from that of the general community.'" (Ibid.) This was generally established by "evidence 'of particular threats, attacks or other extraordinary danger to personal safety.'" (Id. at p. 13.) The petitioners in Bruen were "law-abiding" New York residents who applied for public carry licenses for general selfdefense purposes. (Id. at p. 15.) Their applications were denied for failure to satisfy the "proper cause" requirement, and they sued for declaratory and injunctive relief, contending state officials violated their Second Amendment rights "by denying their unrestricted-license applications on the basis that they had failed to show 'proper cause,' i.e., had failed to demonstrate a unique need for self-defense." (Bruen, at p. 16.)
The high court in Bruen held that "[b]ecause the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, ... the State's licensing regime violates the Constitution." (Bruen, supra, 597 U.S. at p. 11.) The court determined that "[t]he Second Amendment's plain text . . . presumptively guarantee[d] petitioners . . . a right to 'bear' arms in public for self-defense" (id. at p. 33) and "the historical record ... [did] not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense" or "any ... tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense" (id. at p. 38). Therefore, the court concluded that "New York's proper-cause requirement violate[d] the Fourteenth Amendment in that it prevent[ed] law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms." (Id. at p. 71.)
Bruen noted that 43 states "are 'shall issue' jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability." (Bruen, supra, 597 U.S. at p. 13.) In a footnote, the court clarified that "nothing in [its] analysis should be interpreted to suggest the unconstitutionality of the 43 [s]tates' 'shall-issue' licensing regimes, under which 'a general desire for self-defense is sufficient to obtain a [permit].'" (Id. at p. 38, fn. 9.) "[S]hall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens.' [Citation.] And they likewise appear to contain only 'narrow, objective, and definite standards' guiding licensing officials, [citation], rather than requiring the 'appraisal of facts, the exercise of judgment, and the formation of an opinion,' [citation]-features that typify proper-cause standards like New York's." (Ibid.)
On the other hand, Bruen explained that the" 'may issue'" licensing regimes "have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license." (Bruen, supra, 597 U.S. at pp. 14-15.) The Supreme Court noted that California was among the six states that have" 'may issue' licensing laws," which are "analogues to the 'proper cause'" standard. (Ibid.) Justice Kavanaugh clarified in his concurrence that "the [c]ourt's decision does not prohibit [s]tates from imposing licensing requirements for carrying a handgun for self-defense." (Bruen, at p. 79 (conc. opn. of Kavanaugh, J.).) "[T]he [six] states[,] including [California,] potentially affected by today's decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue [s]tates." (Id. at p. 2162.) "New York's outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense. Those features of New York's regime-the unchanneled discretion for licensing officials and the special-need requirement-in effect deny the right to carry handguns for self-defense to many 'ordinary, law-abiding citizens.'" (Id. at p. 79.) Justice Kavanaugh added, "Going forward, therefore, the 43 [s]tates that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the [six] [s]tates including New York potentially affected by today's decision may continue to require licenses for carrying handguns for self-defense so long as those [s]tates employ objective licensing requirements like those used by the 43 shall-issue [s]tates." (Id. at p. 80.)
After Bruen was decided, the California Attorney General publicly issued a legal alert recognizing that the good cause requirement was no longer constitutional. (See Office of the Attorney General, Legal Alert: U.S. Supreme Court Decision in New York State Rifle & Pistol Assoc. v. Bruen, No. 20-843 (June 24, 2022).) The legal alert instructed local officials to immediately "no longer require proof of good cause for the issuance of a public-carry license." (Ibid.) However, citing Bruen, the legal alert advised local officials to "continue to apply and enforce" all the other statutory prerequisites to obtaining a concealed-carry license. (Ibid.)
A New York state court decision, post Bruen, involved a defendant who neither had a license to carry, nor sought to obtain one, argued that Bruen required the dismissal of charges against him for criminal possession of a weapon. (People v. Rodriguez (2022) 171 N.Y.S.3d 802, 804.) In rejecting this argument, the New York court explained that Bruen merely invalidated the state's requirement that applicants for a license to carry show proper cause. (Rodriguez, at pp. 805-806.) Bruen "did not hold that the [s]tate is powerless to criminalize the unlicensed possession of firearms on city streets." (Rodriguez, at p. 805.)
Since Bruen, several California courts have considered the constitutionality of its various statutes regulating possession of firearms. (See, e.g., People v. Bocanegra (2023) 90 Cal.App.5th 1236, 1254-1257 [rejecting argument that conviction under § 30605, which prohibits possession of an assault weapon, must be reversed following Bruen]; People v. Alexander, supra, 91 Cal.App.5th at p. 479 [rejecting argument that §§ 29800, subd. (a)(1) and 30305, subd. (a)(1), which prohibit felons from possessing firearms and ammunition, are facially invalid under Second Amendment following Bruen]; People v. Odell (2023) 92 Cal.App.5th 307, 316-318 [agreeing with Alexander that felon-inpossession statute did not violate Constitution post Bruen].) D.L. is particularly instructive. There, the court rejected a claim which, like the one defendant asserts here, challenged the constitutionality of section 25850, subdivision (a) post Bruen. In that case, the juvenile court found the count in a wardship petition charging the minor with the unlawful possession of a loaded firearm under section 25850, subdivision (a) to be true. (D.L., supra, 93 Cal.App.5th at p. 149.) The minor sought reversal of his section 25850 conviction based on Bruen. (D.L., at p. 149.)
In D.L., the Attorney General conceded that Bruen invalidated California's "good cause" requirement to obtain a license to carry a firearm. (D.L., supra, 93 Cal.App.5th at p. 148.) Though the "good cause" requirement was no longer valid, the court agreed with the Attorney General that the minor's constitutional challenge could be defeated because the "good cause" requirement in sections 26150 and 26155 was severable from the balance of California's concealed carry licensing framework. (D.L., at p. 148.) The court analyzed the three criteria for severability-whether a provision is (1) grammatically, (2) functionally, and (3) volitionally separable-and concluded the invalid "good cause" provision of the licensing framework was severable from the public carry licensing framework. (Id. at pp. 148, 163.)
Having established severability, the D.L. court concluded that the licensing framework remained valid once that provision was excised. (D.L., supra, 93 Cal.App.5th at p. 150.) Bruen's majority holding was "quite limited," restricted to holding only that New York's" 'proper-cause'" licensing requirement was unconstitutional. (D.L., at p. 165.) The court further noted that Bruen "did not undermine regulation of guns based on objective criteria," and quoted language from Bruen which recognized limits to the exercise of an individual's right to armed self-defense. (D.L., at p. 165 [explaining right secured by Second Amendment"' "was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose"' "].) The D.L. court determined that "the remaining concealed carry licensing requirements, after severing the 'good cause' condition, [were] consistent with the goals that California has advanced since the founding of our state: ensuring Californians who carry firearms are responsible and law-abiding, live in or have substantial contact with the licensing jurisdiction . . ., and know how to safely handle a gun." (D.L., at p. 166.) Therefore, it concluded "section 25850 is enforceable and is not unconstitutional on its face. It does not pose a present total and fatal conflict with applicable constitutional prohibitions." (D.L., at p. 167.) We agree with the constitutional analysis in D.L., adopt it here, and conclude section 25850 is enforceable and not unconstitutional on its face.
Bruen's "actual holding was quite limited" (D.L., supra, 93 Cal.App.5th at p. 165), and held only that New York's "proper-cause" licensing requirement was unconstitutional. (Bruen, supra, 597 U.S. at p. 71.) The New York licensing scheme also had a" 'good moral character'" requirement (see Bruen, at pp. 12, 94 [noting New York licensing scheme requires license applicant to show he or she is "of 'good moral character' "]), which was neither challenged by the Bruen plaintiffs nor was its constitutionality considered by the Supreme Court. Thus, Bruen does not compel us to sever or otherwise question California's "good moral character" licensing requirement, and we decline to expand Bruen's reach to other licensing requirements it did not address. Accordingly, defendant's claim fails.
DISPOSITION
We affirm the judgment.
WE CONCUR: POOCHIGIAN, Acting P. J. MEEHAN, J.