Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04WF0238, Gregg L. Prickett, Judge.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputies Attorney General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
A jury convicted Federico Rosas of two counts of willful, deliberate and premeditated attempted murder (Pen. Code, § 664, 187, subd. (a)), two counts of shooting at an occupied motor vehicle (§ 246), one count of being a convicted felon in possession of a firearm (§ 12021, subd. (a)(1)), and one count of street terrorism (§ 186.22, subd. (a)). The jury also found true sentencing enhancement allegations for intentional and personal discharge of a firearm (§ 12022.53, subd. (c)) and committing crimes for the benefit of, at the direction of, or in association with the Southside criminal street gang (§ 186.22, subd. (b)(1)). In a separate proceeding, the trial court found true sentencing enhancement allegations for having a prior serious or violent felony conviction, pursuant to section 667, subdivision (a), and that this prior serious or violent felony conviction also constituted a strike within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12).
All further statutory references are to the Penal Code unless otherwise stated.
The court sentenced Rosas to life with the possibility of parole, plus 20 years for each count of attempted murder and its associated gun enhancement. Pursuant to section 186.22, subdivision (b)(5), the court set Rosas’s minimum parole eligibility at 15 years. The court also sentenced Rosas to the two-year midterm for felon in possession of a firearm and imposed a consecutive five-year term for the prior serious felony conviction. Sentence for both counts of shooting at an occupied vehicle and the street terrorism count was stayed pursuant to section 654. The court’s abstract of judgment indicates that the determinate terms were imposed pursuant to the Three Strikes law, although nothing in the reporter’s transcript supports this notation.
Rosas argues the evidence supports only a single count of attempted murder, and that one of the two convictions for this crime must be reversed. In the alternative, he contends section 654 proscribes dual punishment for these crimes. He also contends the court committed a sentencing error, and that the clerk’s transcript and abstract of judgment do not accurately reflect the oral pronouncement of sentence. The Attorney General acknowledges Rosas’s challenges to the court’s imposition of sentence, but also contends his “claim only identifies a small part of what went wrong in the sentencing.” The Attorney General provides a list of over 11 sentencing “defects,” and suggests the matter be remanded for a new sentencing hearing.
We conclude that Rosas was properly convicted of two counts of attempted murder based on the facts adduced at trial. Further, the record supports the court’s imposition of sentence on both counts. Nevertheless, the matter must be remanded for a new sentencing hearing to address various other aspects of Rosas’s sentence and to ensure that the clerk’s transcript and the abstract of judgment accurately reflect the court’s oral pronouncement of sentence. Consequently, the judgment of conviction is affirmed. The matter is remanded to the trial court with directions to set aside the sentence and to conduct a new sentencing hearing.
I
FACTS
Maximo Tlasaca met Rosas in 1994 when both attended the same middle school. Later, Tlasaca became friends with several members of the Lopers criminal street gang, although he denied being a member or associate of the gang. In the fall of 2003, Tlasaca and Rosas saw each other as they drove their respective cars on the streets of Huntington Beach. Rosas, who was driving a white Lincoln automobile, asked Tlasaca what gang he claimed. Tlasaca responded, “None.” Rosas then shouted, “Southside Huntington Beach,” and drove away.
Approximately three months later, Tlasaca saw Rosas driving the same white Lincoln on Warner Avenue in Huntington Beach. Tlasaca, who was standing next to a lunch truck, hurriedly got into his own car and drove away. When he stopped at a traffic signal at the intersection of Warner Avenue and Goldenwest Street, Tlasaca noticed that Rosas’s car had stopped approximately 60 feet behind him. Tlasaca heard what sounded like a gunshot and then something hitting his car. Seconds later, the light turned green and Tlasaca had pulled forward about 30 feet when he heard a second gunshot. Rosas made a U-turn and drove away. Tlasaca drove home. He later found a bullet lodged in the frame of his car door, but the second shot missed his car.
Tlasaca identified Rosas from the Huntington Beach Police Department’s Southside Huntington Beach gang photo book. Huntington Beach police officers went to Rosas’s residence and waited for him. Later that evening, they saw a red SUV pull into a parking lot across the street from Rosas’s house, but it quickly drove out of the parking lot and away from the area. The officers followed the SUV and attempted a traffic stop, but the driver refused to yield. However, when the SUV slowed down, Rosas jumped out of the passenger door and fled on foot. Two police officers gave chase and tackled Rosas just 300 yards from the SUV.
Rosas’s hands and certain areas of his white Lincoln automobile tested positive for gunshot residue. At the time of his arrest, Rosas, who is a documented member of the Southside Huntington Beach criminal street gang, was wearing gang clothing and sporting a shaved head haircut.
II
DISCUSSION
1. Dual Convictions
The jury convicted Rosas of two counts of premeditated and deliberate, attempted murder. Relying primarily on Wilkoff v. Superior Court (1985) 38 Cal.3d 345 (Wilkoff), Rosas contends “there was no substantial evidence from which a reasonable trier of fact could have found beyond a reasonable doubt that appellant was guilty of two counts of attempted murder. At most, the record contains substantial evidence from which the trier of fact could have found appellant guilty of only one count of attempted murder.” Rosas contends the two shots were but one act of premeditated and deliberate attempted murder. We disagree.
Section 954 states, “An accusatory pleading may charge... different statements of the same offense” and “the defendant may be convicted of any number of the offenses charged.” The issue of multiple convictions must be distinguished from the closely related question of whether a defendant may receive multiple punishments based upon a single act or course of conduct. (§ 654; People v. Ortega (1998) 19 Cal.4th 686, 692, disapproved on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229, 1231.) The Supreme Court has recognized the tension between sections 954 and 654, and the solution, generally, is “to permit multiple convictions on counts that arise from a single act or course of conduct—but to avoid multiple punishment, by staying execution of sentence on all but one of those convictions.” (Ibid.) The sole exception being that “multiple convictions may not be based on necessarily included offenses. [Citations.]” (People v. Pearson (1986) 42 Cal.3d 351, 355.)
The starting point for analysis is the determination of when the charged crime is completed. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474.) “An attempt to commit a crime is comprised of ‘two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.’ [Citations.]” (People v. Medina (2007) 41 Cal.4th 685, 694; see also People v. Lee (2003) 31 Cal.4th 613, 623.) Rosas fired two shots at Tlasaca—one when Tlasaca was stopped for a red light, and the second as he drove through the intersection. Although the shots came relatively close together in time, the time interval was sufficient for Rosas to realize the first shot missed its intended target and to form the intent to try again. Under these circumstances, each shot formed the basis of an individual, discrete criminal act, and not, as Rosas argues, simply part of a single continuing crime.
Furthermore, Rosas’s reliance on Wilkoff, supra, 38 Cal.3d 345, is misplaced. In Wilkoff, the defendant was charged with a count of drunk driving for each person she killed or injured in an auto accident she caused. The California Supreme Court held, in pertinent part, that “a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. The act prohibited by [the drunk driving statute] is the act of driving a vehicle while intoxicated....” (Id. at p. 349.) The court looked to the “language of the statute” and determined that “the Legislature clearly intended only one violation of the statute regardless of the number of victims. [Citation.]” (People v. McFarland (1989) 47 Cal.3d 798, 802.)
Section 664 has no similar limitation. It states, “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished....” Thus, the crime of attempt is complete when the defendant acts with the requisite intent. (People v. Kipp (1988) 18 Cal.4th 349, 376.) As the California Supreme Court noted, “Other than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense. [Citations.]” (People v. Medina, supra, 41 Cal.4th at p. 694.) Furthermore, mere proximity in time does not preclude multiple convictions for the same offense. (See People v. Harrison (1989) 48 Cal.3d 321, 334 [three acts of forcible insertion of finger into victim’s vagina constituted three crimes notwithstanding that each insertion lasted only a few seconds and the entire incident only lasted a few minutes.]) We conclude the jury properly convicted Rosas of two counts of attempted murder based on the facts adduced at trial.
2. Double Punishment
In the alternative, Rosas contends section 654 prohibits the imposition of sentence for both counts of attempted murder. Section 654, subdivision (a) provides, in pertinent part, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 bars multiple punishment for a single criminal act and “for a single indivisible course of conduct in which the defendant had only one criminal intent or objective. [Citations.] We review under the substantial-evidence standard the court’s factual finding, implicit or explicit, of whether there was a single criminal act or a course of conduct with a single criminal objective. [Citations.]” (People v. Mosley (2008) 164 Cal.App.4th 1598, 1603.)
The court imposed separate and consecutive sentences for each attempted murder conviction stating, “there was testimony of separate shots that were fired here, the court believes that there was a separate intent that was present here.” The court also stated that it relied on People v. Palacios (2007) 41 Cal.4th 720 (Palacios) to impose sentence on both counts.
The reason for the trial court’s reference to Palacios is unclear. There, the California Supreme Court was concerned with the issue of whether section 654 barred the imposition of sentence for multiple section 12022.53 enhancements. (Palacios, supra, 41 Cal.4th at p. 725.) Palacios had been sentenced to three consecutive terms of life with the possibility of parole for attempted murder and kidnapping, with added enhancements under section 12022.53, subdivision (d) of 25 years to life. (Id. at pp. 724-725.) The appellate court agreed with Palacios’s contention that the imposition of sentence for two of the three section 12022.53 enhancements should be stayed under section 654 because then the punishment would be commensurate with Palacios’s having discharged the firearm only once at a single victim. (Id. at p. 725.) In reversing the appellate court, and after reviewing the legislative intent and history behind section 12022.53, as well as section 654 and its holding in People v. Oates (2004) 32 Cal.4th 1048, the California Supreme court held that “in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654.” (Palacios, supra, 41 Cal.4th at pp. 727-728.)
We have no alternative sentencing scheme to consider here. This is a straight forward determination of whether Rosas had a single intent and objective when he fired two shots at Tlasaca. The court found Rosas possessed a separate intent to kill Tlasaca with each shot, and the Attorney General, relying on People v. Trotter (1992) 7 Cal.App.4th 363 (Trotter), urges us to affirm the trial court’s ruling.
In Trotter, the defendant fired three shots in rapid succession at a pursuing police officer. The appellate court described the scene: “Defendant, as he was driving, turned back, pointed, and shot his weapon. He resumed his driving, paused for about a minute, turned back, and shot again. After another few seconds a third shot was fired. There was thus time prior to each shot for defendant to reflect and consider his next action.” (People v. Trotter, supra, 7 Cal.App.4th at p. 368, italics added.) The appellate court concluded that “each shot evinced a separate intent to do violence....” (Ibid.) Rosas argues he had but one objective and that was to kill Tlasaca. However, “when [a] defendant pauses and, having the option to land another blow or to break off the attack, chooses the former course of action, his culpability increases and his intent, though the same in kind, can be considered separate and distinct....” (Id. at p. 368, fn. 4.)
Furthermore, as noted by the Trotter court, “[t]he purpose behind section 654 is ‘to insure that a defendant’s punishment will be commensurate with his culpability. [Citation.]’ [Citation.]” (Id. at p. 367, fn. omitted.) Rosas fired two shots at Tlasaca. Each shot required a separate aim and trigger pull. Thus, Rosas’s “conduct became more egregious with each successive shot.” (Id. at p. 368.) Under the facts presented here, separate punishment for each act is entirely appropriate.
3. Sentencing Errors
Rosas claims the court failed to state whether sentence for count 5, felon in possession of a firearm, was to run concurrently with or consecutively to the sentences imposed for counts 1 and 2. However, the court’s minute order from the sentencing hearing and the abstract of judgment state that the court imposed a consecutive two-year term on count 5. Rosas alternatively contends the court imposed an unauthorized sentence, made a clerical error, or that the sentence imposed for count 5 runs concurrently by operation of law.
The Attorney General acknowledges Rosas’s contention, but argues that because “appellant’s claim only identifies a small part of what went wrong in the sentencing... the case should be remanded for resentencing.” The respondent’s brief sets forth 11 sentencing defects that should be addressed on remand. Focusing on problems with count 5 alone, Rosas’s reply brief suggests this court can correct any sentencing error without resort to a new sentencing hearing. However, we conclude the matter must be remanded for the sentencing court to exercise its discretion in the first instance, where appropriate, and to ensure the continuity of the written and oral records of the proceeding. On remand, the court should resentence Rosas with particular focus on the following issues:
(1) Counts 1 and 2. Assuming the court intended to impose consecutive life terms with a minimum parole period of 15 years, plus consecutive 20-year terms for the section 12022.53, subdivision (c) enhancements, the court’s minute order and abstract of judgment must be corrected to properly reflect the imposition of that sentence.
(2) Counts 3 and 4. The court stated it imposed “a five-year term and then orders that stayed pursuant to 654. The same as to count 4.” Counts 3 and 4 charged Rosas with shooting at an occupied vehicle, and each count had a related gang enhancement allegation. Sentence on these counts must include a disposition of the enhancement.
(3) Count 5. The court stated it chose the two-year term because neither aggravating nor mitigating factors “preponderate[d]....” The court’s minute order states this term was ordered to run consecutively to the sentence imposed for count 1 and that the related gang enhancement was stricken for sentencing purposes. On remand, the court must orally state whether sentence for count 5 will run concurrently or consecutively to other sentences, and to state a disposition of the criminal street gang enhancement. (§ 1193; People v. McGahuey (1981) 121 Cal.App.3d 524, 530 [pronouncement of sentence is a judicial act].)
(4) Count 6. The court stated, “as to count 6, impose a two-year sentence and then order that stayed pursuant to section 654. The court believing that that is appropriate in light of the unsettledness of the law. And that the overall sentence here, it appears that the overriding motive, if not the only motive here, was in fact for the gang involvement. And in light of the court imposing the 186.22(b), then the court would, per *Seedasan stay that sentence on count 6 of two years pursuant to 654. [¶] The court imposes the 5-year 667(a) enhancement.” The court’s minute order and abstract of judgment states the two-year term was stayed pursuant to section 1170.1, not section 654. The court needs to correct its minute order and abstract of judgment to conform to the oral pronouncement of sentence.
(5) Although the information charged section 12022.5, subdivision (a) gun-use enhancements, there were no verdict forms for this enhancement and no mention of it during the sentencing hearing. The court’s minute order states the section 12022.5, subdivision (a) enhancements were “stricken,” but the reporter’s transcript contains no such reference. Oral pronouncement of sentence is required. (§ 1193; People v. McGahuey, supra, 121 Cal.App.3d at p. 530.)
(6) The court failed to state whether the determinate terms were to run concurrently or consecutively to the indeterminate term as required by section 669. The abstract of judgment incorrectly states the court ordered the determinate terms to be served concurrently with the indeterminate term. Thus, the court must either pronounce sentence or correct the abstract of judgment.
(7) Although the abstract of judgment states sentence was imposed “pursuant to PC667(b)-(i),” the reporter’s transcript does not contain a single reference to the applicability of the Three Strikes law. On remand, the court must either strike the “strike” prior for sentencing purposes, or state for the record how it applied the Three Strikes law.
The Attorney General contends the abstract of judgment fails to reflect the court’s imposition of $10,000 restitution and parole revocation fines. However, we found reference to these fines on the second page of the indeterminate sentencing abstract of judgment.
III
DISPOSITION
We affirm the judgment of conviction. The matter is remanded to the trial court with directions to set aside the sentence and to resentence Rosas in accordance with the views expressed in this opinion.
WE CONCUR: MOORE, J., FYBEL, J.