Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Fresno County Super. Ct. No. F03901458-0. Franklin P. Jones, Judge.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Brian G. Smiley and Tami M. Warwick, Deputy Attorneys General, for Plaintiff and Respondent.
Before Ardaiz, P.J., Vartabedian, J. and Dawson, J.
OPINION
ARDAIZ, P. J.
Appellant Charles Edward Turner stands convicted, following a jury trial, of assault with a firearm involving the personal use of a firearm (Pen. Code, §§ 245, subd. (a)(2), 12022.5, subd. (a)(1); counts 1-4), discharge of a firearm with gross negligence (§ 246.3; count 5), shooting at an occupied motor vehicle (§ 246; count 6), child endangerment (§ 273a, subd. (a); counts 7-8), and possession of a firearm by an ex-felon (§ 12021, subd. (a)(1); count 9). Following a bifurcated court trial, he was found to have suffered two prior serious felony convictions (§ 667, subd. (a)(1)) that were also strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and to have served a prior prison term (§ 667.5, subd. (b)). The trial court dismissed one strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, sentenced appellant to prison for a total unstayed term of 27 years, and ordered him to pay a restitution fine. Appellant filed a timely notice of appeal.
All statutory references are to the Penal Code unless otherwise stated.
We originally affirmed. (People v. Turner (Dec. 16, 2005, F046307 [nonpub. opn.].) Subsequently, however, the United States Supreme Court granted certiorari, vacated the judgment, and remanded the cause to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). Accordingly, we recalled the remittitur, vacated the judgment, and reinstated the appeal. For the reasons that follow, we will again affirm.
FACTS
I
PROSECUTION EVIDENCE
On January 22, 2003, Chantelle Montgomery gave Veronica Turner, appellant’s wife, a ride to Veronica’s aunt’s house. They were accompanied by Chantelle’s sister, Cherrish Montgomery, and Veronica’s and appellant’s two boys, a two-year-old and a newborn who was on a heart monitor. Chantelle drove her Honda Accord, Cherrish sat in the front passenger seat, and Veronica and the children sat in the backseat.
For sake of clarity, we refer to some individuals by their first names. No disrespect is intended.
When they reached their destination, a house on Poppy near Grove, Chantelle parked and waited while Veronica got out of the car and began taking some items to the house. While Veronica was walking, she dropped several things. As Chantelle started to retrieve them, she saw appellant approaching with a gun in his hand. He pointed the gun at her and told her to get out. She raised her hands and started to back away from him. He followed, yelling and cursing at her. While she was backing up, the barrel was inches from her chest.
Appellant followed Chantelle all the way across the street, then turned around, started to walk away, and fired one round into the air. He then walked over to her vehicle, which still contained Cherrish and the boys, and looked inside. Appellant, who was on the passenger side of the car, pointed the gun at Cherrish through the windshield and told her to get out. He walked over to Veronica and slapped her four or five times in the face. He then returned to the front of the car and fired several rounds into the engine area. He was standing directly in front of Cherrish, and the vehicle’s two side doors were open, when he fired into the hood. One of the bullets penetrated the hood. Another left an indentation in the hood, but did not penetrate the metal. Both of these strikes were on the driver’s side of the hood. There was also a bullet strike mark and possible bullet hole on the passenger side front spoiler/bumper. A bullet subsequently was found inside the engine compartment.
It is unclear whether appellant slapped Veronica before or after he pointed the gun at Cherrish. However, he looked inside the car at some point before he opened fire.
After shooting at the car, appellant, who had an informal joint custody arrangement with Veronica, from whom he was separated, took the boys and left. The children were located a short time later at their grandmother’s home. The baby’s heart monitor was sounding, so an ambulance was summoned and the child was treated.
II
DEFENSE EVIDENCE
Appellant, who admitted having previously been convicted of robbery, testified that he unexpectedly discovered Veronica at his aunt’s house when he arrived on the evening in question. Veronica became angry when she saw him, and they argued because she thought he was having an affair with the woman who had given him a ride to the house. Appellant was physically restraining Veronica when a car approached and shots were fired. After the vehicle drove off, appellant ascertained that his boys were in the Honda Accord, and he took them to his grandmother’s house. He did not call 911.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
Appellant contends the evidence is insufficient to sustain his convictions for assault with a firearm (counts 1-4) and child endangerment (counts 7-8). The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367).
A. Assault with a Firearm (Counts 1-4)
Counts 1 and 2 were based on appellant’s conduct in pointing a gun at Chantelle and Cherrish, respectively, while counts 3 and 4 were based on his shooting into the vehicle containing his two little boys. He says that all four convictions must be reversed because the evidence did not establish the elements of assault, as most recently clarified by the California Supreme Court in People v. Williams (2001) 26 Cal.4th 779 (Williams).
Section 245, subdivision (a)(2) specifies the punishment range for “[a]ny person who commits an assault upon the person of another with a firearm .…” Thus, a necessary element of the offense is an assault (People v. Cook (2001) 91 Cal.App.4th 910, 920), which is defined by statute as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another” (§ 240).
The mental state required for assault is an issue that has occupied the California Supreme Court for some time. In People v. Rocha (1971) 3 Cal.3d 893, 898-899, the court concluded that assault and assault with a deadly weapon require only a general criminal intent and not a specific intent to cause injury. This conclusion was reaffirmed in People v. Colantuono (1994) 7 Cal.4th 206, 215-216 (Colantuono), wherein the court further explained that the mens rea for assault “is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.” (Id. at p. 214.) In other words, “[t]he pivotal question is whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm.” (Id. at p. 218, fn. omitted.) Reckless conduct alone is insufficient. (Id. at p. 219.) In Williams, the court clarified “that assault requires actual knowledge of the facts sufficient to establish that the defendant’s act by its nature will probably and directly result in injury to another.” (Williams, supra, 26 Cal.4th at p. 782.) “[A] defendant is only guilty of assault if he intends to commit an act ‘which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences.’ [Citation.] Logically, a defendant cannot have such an intent unless he actually knows those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. [Citation.] In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known.” (Id. at pp. 787-788.)
Elsewhere in the opinion, the court substituted “physical force being applied” for “injury.” (Williams, supra, 26 Cal.4th at p. 784.)
Appellant says the evidence adduced at trial failed to establish that his actions would naturally and probably result in a battery. He concedes the prosecution’s evidence showed he pointed a gun at Chantelle and Cherrish, but claims that “sticking a gun in someone’s face is not an act that will ‘probably and directly result in the application of physical force.’” Because there was no evidence that he intended to pull the trigger or strike either woman with the gun, he argues, “[a] reasonable person … would not have realized that a battery would be a natural and probable result of merely pointing the firearm at the two young women.”
The idea that sticking a loaded gun in someone’s face does not constitute assault, is preposterous. As explained in Williams, “the crime of assault has always focused on the nature of the act and not on the perpetrator’s specific intent. An assault occurs whenever ‘“[t]he next movement would, at least to all appearance, complete the battery.”’ [Citation.] Thus, assault ‘lies on a definitional … continuum of conduct that describes its essential relation to battery: An assault is an incipient or inchoate battery; a battery is a consummated assault.’ [Citation.]” (Williams, supra, 26 Cal.4th at p. 786.) “[T]he criminal intent which is required for assault … is the general intent to wil[l]fully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another.” (People v. Rocha, supra, 3 Cal.3d at p. 899, italics added.)
While waving a gun around might or might not fall within the definition of an assault, pointing a loaded firearm at someone from close range most assuredly does. “To point a loaded gun in a threatening manner at another … constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury. [Citations.]” (People v. Miceli (2002) 104 Cal.App.4th 256, 269, italics added; see, e.g., People v. Rodriguez (1999) 20 Cal.4th 1, 7, 11, fn. 3; People v. Daniels (1993) 18 Cal.App.4th 1046, 1050-1051; People v. Escobar (1992) 11 Cal.App.4th 502, 505; People v. Schwartz (1992) 2 Cal.App.4th 1319, 1326; People v. Edwards (1970) 14 Cal.App.3d 57, 69.) This holds true even assuming, as Cherrish hypothesized, that appellant may not have pointed the gun directly at her because it was dark and the car’s windows were tinted. (See People v. Raviart (2001) 93 Cal.App.4th 258, 263-267.)
Appellant also concedes the prosecution’s evidence showed he fired at least two bullets into the hood of the car that was occupied by Cherrish and the boys. In his view, however, this did not constitute an assault because he fired the gun downward into the front of the car rather than directly at the people inside, and he was standing on the passenger side and firing toward the driver’s side, away from Cherrish and the children. Moreover, he claims, the evidence did not show that it was probable for a ricochet to strike any of the vehicle’s occupants, especially the boys, as they were in the backseat. He distinguishes the facts of Williams on the basis that, unlike the defendant in that case, appellant “fired his weapon in a manner that was intended to avoid injury,” i.e., “in a manner that a reasonable person would not find was likely to cause any of the occupants of the vehicle to get shot.”
Although Williams dealt with instructional error, not a claim of insufficient evidence, we conclude that it supports appellant’s convictions. There, the defendant fired a round from a shotgun into the rear passenger-side wheel well of King’s truck. The defendant admitted being aware that King was crouched approximately a foot and a half away from the rear fender well of the vehicle, but claimed he did not see King’s two sons until after he fired. King, on the other hand, testified that his sons were getting into the truck when the defendant fired. The defendant’s shot did not hit King or the boys, although it did strike the rear tire of King’s truck and left marks on the truck’s rear wheel well, its undercarriage, and its gas tank. The defendant was convicted, inter alia, of assaulting King with a firearm, but the jury deadlocked on charges that he assaulted the boys. (Williams, supra, 26 Cal.4th at pp. 782-783.)
The jury in Williams was instructed that assault required proof that a person willfully and unlawfully committed an act that by its nature would probably and directly result in the application of physical force on another person, and that, at the time the act was committed, such person had the present ability to apply physical force to the person of another. (Williams, supra, 26 Cal.4th at p. 783.) After holding that assault requires that the defendant “must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct” (id. at p. 788), the high court found that the instruction given was “potentially ambiguous,” but that “any minor ambiguity … was harmless beyond a reasonable doubt. [Citation.]” (Id. at p. 790.) The court reasoned:
“Because ‘the test of natural and probable consequences is an objective one’ [citation], merely requiring the jury to find that a defendant willfully and unlawfully committed an act that by its nature would probably and directly result in physical force being applied to the person of another may permit a conviction premised on facts the defendant should have known but did not actually know. Thus, under the instruction given, a jury could conceivably convict a defendant for assault even if he did not actually know the facts sufficient to establish that his act by its nature would probably and directly result in a battery.
Nonetheless, any instructional error is largely technical and is unlikely to affect the outcome of most assault cases, because a defendant’s knowledge of the relevant factual circumstances is rarely in dispute. Indeed, this case corroborates this observation. Here, defendant admitted he loaded his own shotgun with two shotgun rounds. He further testified that he knew that King, the alleged victim, ‘was crouched on the far side of the truck between the rear fender and the cab.’ Finally, defendant admittedly fired a warning shot at King’s truck even though he knew that King was in the near vicinity. In light of these admissions, defendant undoubtedly knew those facts establishing that his act by its nature would directly, naturally and probably result in a battery. The jury’s deadlock on the other assault counts, in which defendant denied actual knowledge that the victims were near the truck when he fired his shotgun, further confirms that the jury was not misled.” (Ibid., original italics omitted, italics added.)
In the present case, the evidence, viewed in the light most favorable to the judgment, established that appellant knew Cherrish and the boys were inside the car, yet deliberately opened fire anyway. Even though he may have aimed at the car and not directly at them, he clearly knew they were in the very near vicinity, and so was “aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.” (Williams, supra, 26 Cal.4th at p. 788.) Appellant was “not … convicted based on facts he did not know but should have known.” (Ibid.) Moreover, he did not have to “be subjectively aware of the risk that a battery might occur.” (Ibid., fn. omitted.) As the court noted in Williams, “a defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery.” (Id. at p. 788, fn. 3.) Such was the situation here.
Appellant notes that the prosecutor told jurors that appellant wanted to scare everyone. It has been stated that “under the California definition ‘a conviction for assault may not be grounded upon intent only to frighten.’ [Citations.]” (People v. Wolcott (1983) 34 Cal.3d 92, 99.) We question the continued validity of this statement in light of Colantuono and Williams, which make it clear that whether an assault occurred focuses on the nature of the act, not the defendant’s subjective intent. (Williams, supra, 26 Cal.4th at p. 786; Colantuono, supra, 7 Cal.4th at p. 217.) A defendant who intends only to frighten – i.e., who honestly believes that his act is not likely to result in a battery because he does not intended to commit a battery – “is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery.” (Williams, supra, at p. 788, fn. 3.)
In pertinent part, the prosecutor argued: “Was he trying to kill Cherrish Montgomery? I don’t think so. If he wanted to kill her, he would have killed her. He stood in the passenger’s side and fired into the driver’s side into the engine. What did he want? [¶] He didn’t want to kill anyone. He wanted to scare the crap out of everybody including Veronica Turner because she knew her babies were in that car too.”
“The drawing of a weapon is generally evidence of an intention to use it. Though the drawing itself is evidence of the intent, yet that evidence may be rebutted when the act is accompanied with a declaration, or circumstances, showing no intention to use it. But when the party draws the weapon, although he does not directly point it at the other, but holds it in such a position as enables him to use it before the other party could defend himself, at the same time declaring his determination to use it against the other, the jury are fully warranted in finding that such was his intention.” (People v. McMakin (1857) 8 Cal. 547, 549.) Here, appellant made no declarations concerning his intent. Instead, he used the gun, first by pointing it at Chantelle and then Cherrish, and then by firing multiple rounds into the vehicle in which Cherrish and his two little boys were present. Under the circumstances, the jury reasonably could have “determine[d] from the facts that [appellant] willfully committed a violent act, i.e., engaged in conduct that would by its nature likely and directly result in a ‘violent injury,’” and so could “reasonably find from the totality of the circumstances that all elements of the offense [were] satisfied, including the requisite mental state. [Citations.]” (Colantuono, supra, 7 Cal.4th at p. 219, fn. 10.) Accordingly, appellant’s convictions on counts 1-4 stand.
B. Child Endangerment (Counts 7-8)
Counts 7 and 8 were based on the same conduct as counts 3 and 4, i.e., appellant’s act of shooting into the vehicle containing his two little boys. “Section 273a, subdivision (a) ‘is an omnibus statute that proscribes essentially four branches of conduct.’ [Citation.] As relevant here, it provides: ‘Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.’ (§ 273a, subd. (a).)” (People v. Valdez (2002) 27 Cal.4th 778, 783, fn. omitted.) The California Supreme Court has observed that a violation of the statute “‘can occur in a wide variety of situations: the definition broadly includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.’ [Citation.] [That court has] also observed, however, that ‘[t]wo threshold considerations … govern all types of conduct prohibited by this law: first, the conduct must be willful; second, it must be committed “under circumstances or conditions likely to produce great bodily harm or death.” [Citation.] Absent either of these elements, there can be no violation of the statute.’ [Citation.] Section 273a[, subdivision (a)] is ‘intended to protect a child from an abusive situation in which the probability of serious injury is great.’ [Citation.] ‘[T]here is no requirement that the actual result be great bodily injury.’ [Citation.]” (People v. Sargent (1999) 19 Cal.4th 1206, 1215-1216.) Moreover, “[t]he risk need not be life threatening, as long as there are risks of great bodily harm. [Citation.]” (People v. Odom (1991) 226 Cal.App.3d 1028, 1033.)
Essentially reiterating his reasoning with respect to counts 3 and 4, discussed ante, appellant contends the evidence failed to show that it was likely any of the bullets fired into the hood of the car would strike the two children in the backseat. Assuming jurors could have drawn this conclusion from the evidence before them, they were not required to do so. “It is for the trier of fact to determine whether the act was done ‘under circumstances or conditions likely to produce great bodily harm or death,’ i.e., under conditions ‘in which the probability of serious injury is great.’ [Citations.]” (People v. Sargent, supra, 19 Cal.4th at p. 1223.) Viewing the evidence in the light most favorable to the judgment, we conclude that a rational trier of fact could have found the requisite likelihood of serious injury. Accordingly, appellant’s convictions on counts 7 and 8 stand.
II
CONVICTION UNDER GENERAL STATUTE
Appellant says he was improperly convicted of violating section 245, subdivision (a)(2), because more specific statutes prohibit his conduct. In this respect, “when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. [Citations.] Whether to prosecute and what charge to file … are decisions that generally rest in the prosecutor’s discretion. [Citations.]” (United States v. Batchelder (1979) 442 U.S. 114, 123-124.) However, “when the Legislature has enacted a specific statute addressing a specific matter, and has prescribed a sanction therefor, the People may not prosecute under a general statute that covers the same conduct, but which prescribes a more severe penalty, unless a legislative intent to permit such alternative prosecution clearly appears. [Citation.]” (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250 (plur. opn. of Eagleson, J.), fn. & italics omitted.) This is because “‘where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.’” (In re Williamson (1954) 43 Cal.2d 651, 654.)
“The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent.” (People v. Jenkins (1980) 28 Cal.3d 494, 505, fn. omitted.) “‘Typically the issue whether a special criminal statute supplants a more general criminal statute arises where the special statute is a misdemeanor and the prosecution has charged a felony under the general statute instead. [Citations.] Such prosecutions raise a genuine issue whether the defendant is being subjected to a greater punishment than specified by the Legislature, and the basic question for the court to determine is whether the Legislature intended that the more serious felony provisions would remain available in appropriate cases.’ [Citation.]” (Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1250, fn. 14 (plur. opn. of Eagleson, J.).) “The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and ‘requires us to give effect to the special provision alone in the face of the dual applicability of the general provision … and the special provision. …’ [Citation.]” (People v. Jenkins, supra, at pp. 505-506.)
With regard to his conduct of pointing a gun at Chantelle and Cherrish, appellant calls our attention to section 417, subdivision (a)(2) (drawing or exhibiting a firearm in a rude, angry or threatening manner), which specifies the punishment applicable to “[e]very person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel .…” As for his conduct of shooting into the vehicle that contained Cherrish and the boys, appellant points to section 246.3 (discharging a firearm in a grossly negligent manner), which 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 .…”
Depending on the circumstances, a prosecutor may have discretion to charge these offenses instead of, or alternatively to, assault with a firearm. (See, e.g., People v. Superior Court (Rodrigo O.) (1994) 22 Cal.App.4th 1297, 1299-1300; cf. Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1250 (plur. opn. of Eagleson, J.).) This does not mean prosecution under section 245, subdivision (a)(2) is precluded by the “special over general” rule, however, since, unlike section 245, subdivision (a)(2), sections 246.3 and 417, subdivision (a)(2) are aimed at acts which, while potentially dangerous or harmful, do not reach the level of an assault.
For example, section 246.3 “was enacted primarily to deter the dangerous practice that exists in some communities of discharging firearms into the air in celebration of festive occasions. [Citations.]” (People v. Robertson (2004) 34 Cal.4th 156, 167.) It requires that the firearm be discharged in a grossly negligent manner. That term “is not defined by the statute, but its usual meaning in the context of establishing criminal liability is ‘“‘aggravated, culpable, gross, or reckless … conduct [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life.…’”’ [Citation.]” (Id. at p. 168; see People v. Overman (2005) 126 Cal.App.4th 1344, 1361.) While such conduct certainly can result in injury or death, as the statute requires (People v. Alonzo (1993) 13 Cal.App.4th 535, 539-540), “‘“[t]he gravamen of the crime defined by … section 245 is the likelihood that the force applied or attempted to be applied will result in great bodily injury.”’ [Citations.]” (People v. Hall (2000) 83 Cal.App.4th 1084, 1089, italics omitted; see Williams, supra, 26 Cal.4th at pp. 785, 788.)
Similarly, while brandishing a firearm can result in violence, so that the chief evil to be avoided under section 417, subdivision (a)(2) is the potential for further violence, “the potential for violence does not make a crime violent any more than the potential for romance makes a date an affaire.” (People v. Hall, supra, 83 Cal.App.4th at p. 1092.) The crime of drawing or exhibiting a firearm “in the presence of any other person” in violation of section 417, subdivision (a)(2) is, by its very definition, not committed upon another person, but only in that person’s presence. (People v. Hall, supra, at p. 1087.) On the other hand, “the crime of assault with a deadly weapon [and, by analogy, assault with a firearm] is, by definition, an act of violence committed against a person, namely, one with the likelihood of causing harm to the person.” (Id. at pp. 1089-1090, italics added.) Thus, assault with a firearm is “defined in terms of an act of violence against the person”; brandishing a weapon is not. (Id. at p. 1094.) A violation of section 417, subdivision (a)(2) “does not require an intent to harm or the commission of an act likely to harm others.” (People v. Hall, supra, at p. 1094.) By contrast, assault requires the willful commission of an act that by its nature will probably and directly result in injury to another. (Colantuono, supra, 7 Cal.4th at p. 214; see People v. Simons (1996) 42 Cal.App.4th 1100, 1107-1108.)
Although Hall construes section 417, subdivision (c) in the context of the multiple victim exception to section 654, we find its analysis persuasive.
In light of the different purposes and requirements of the statutes at issue, we conclude that the Legislature clearly did not intend that the brandishing or grossly negligent discharge statutes would preclude application of the assault with a firearm statute where, as here, an assault with a firearm has occurred. (See People v. Jones (2003) 108 Cal.App.4th 455, 464.) Any other conclusion would be absurd. Thus, where a defendant’s conduct reaches the level of an assault with a firearm, section 245, subdivision (a)(2) is the statute that specifically addresses the conduct. Accordingly, appellant was properly convicted of violating that statute.
Even if we were to find the preclusion rule potentially applicable to the statutes at issue, we would still conclude appellant was properly convicted under section 245, subdivision (a)(2). The “special over general” rule does not apply “unless ‘each element of the “general” statute corresponds to an element on the face of the “specific” [sic] statute’ or ‘it appears from the entire context that a violation of the “special” statute will necessarily or commonly result in a violation of the “general” statute.’ [Citations.]” (People v. Coronado (1995) 12 Cal.4th 145, 154; see People v. Jenkins, supra, 28 Cal.3rd at p. 502.) We do not believe either prong is met here. (But see People v. Steele (2000) 83 Cal.App.4th 212, 218 .)
III
ESTABLISHMENT OF SUPER BOWL DATE
On direct examination, appellant testified that he was in the area of Poppy and Grove on January 22, 2003, because he had gone to collect his winnings from a Super Bowl bet that he had made with his cousin. Later, outside the presence of the jury but in appellant’s presence, counsel and the court discussed the prosecutor’s desire to call Deputy District Attorney Jeff Dupras to testify in rebuttal that, in 2003, the Super Bowl was played on January 26. On redirect examination, appellant testified that, in reality, he was in the area on the date in question in order to place a bet on the Super Bowl with his cousin. The prosecutor subsequently elicited from him that he had heard the discussion between the court and counsel concerning the actual date of the Super Bowl. The prosecutor then called Dupras in rebuttal, and this ensued:
Q [by Ms. Sondergaard, the prosecutor] Did I called [sic] you about 15 or 20 minutes ago and asked [sic] you to do some research for me on the Internet?
A Yes, you did.
Q Sir, let me ask you: Are you a sports fan?
A Yes.
Q Do you watch football?
A Yes.
Q Do you watch the Super Bowl?
A I do.
Q Is it safe to say you watch it every year?
A Pretty much.
Q Is the Super Bowl normally held on the last Sunday of every January?
A Usually.
MR. RENGE [defense counsel]: Objection. Withdraw.
MS. SONDERGAARD: Q Did you watch the Super Bowl 2003 which would have been the last year?
A That’s correct.
Q Do you remember as you sit here today what date it was on?
A I do. It was January 26.
MR. RENGE: I’m going to object. That lacks foundation.
THE COURT: Can you lay the foundation?
MS. SONDERGAARD: Sure.
Q How is it you know that, sir?
A After you called me earlier today, 20 minutes or so ago, I went to the Internet and checked a couple different sites for past Super Bowls, and one of them was NFL dot com, National Football League, and there was another one. Looking back to what they both confirmed for me and what I recall from back then is January 26th.
MR. RENGE: That’s hearsay objection.
THE COURT: Objection is overruled.”
Appellant now claims the trial court committed prejudicial error by overruling his objections to Dupras’s testimony. We are not convinced error occurred with respect to Dupras’s testimony concerning what he actually remembered from personally watching the game. In any event, assuming error as to part or all of the testimony to which an objection was raised (see People v. Parks (1971) 4 Cal.3d 955, 960-961; Vogelsang v. Wolpert (1964) 227 Cal.App.2d 102, 126-127), there was no prejudice. As the trial court noted during its discussion with counsel, Evidence Code section 452, subdivision (h) permits a court to take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Appellant fails to suggest why the date of the Super Bowl could not have been judicially noticed pursuant to this section. (See People v. Sirhan (1972) 7 Cal.3d 710, 739, fn. 18 [judicial notice taken, pursuant to Evid. Code, §§ 452, subd. (h) & 459, of fact that particular assassinations occurred two months & less than five years before charged offense].) Since the Super Bowl’s date could have been placed before the jury if the proper procedure had been followed and there were other compelling reasons for jurors to doubt appellant’s credibility, it is not reasonably probable that a result more favorable to appellant would have been reached had his objections to Dupras’s testimony been sustained. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Parks, supra, 4 Cal.3d at p. 961.)
Overruled on other grounds in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 593, footnote 7.
IV
SENTENCING ERROR
The probation officer’s report (RPO) revealed that appellant, age 27 at the time he committed the present offenses, had a 1995 conviction for two counts of second degree armed robbery. Appellant was sentenced to prison for those offenses, which arose out of a single transaction. The RPO also revealed that appellant’s first reported contact with the justice system occurred when appellant was nine years old, and resulted in informal probation. Appellant was adjudged a ward of the court for the first time at age 11, and subsequently had five more wardship adjudications based on commission of both misdemeanors and felonies. The final one resulted in appellant being committed to the California Youth Authority (now known as the Department of Corrections & Rehabilitation, Juvenile Justice) at age 14 for violating section 246 (shooting at an occupied motor vehicle). Four months after he was paroled, he was returned to the Youth Authority due to commission of a new felony.
At sentencing, appellant did not challenge the RPO’s contents. The trial court found him ineligible for probation under the Three Strikes Law, but remarked that it would not admit him to probation in any event “because of his very extensive prior record.” The trial court struck one of appellant’s robbery convictions, thus allowing appellant to be sentenced as a second striker instead of to a life term, but imposed the upper term on counts 1, 5, 6, 7, 8, and 9, stating: “There are aggravating factors in this case pursuant to [California Rules of Court, rule] 4.421. Aside from the 1995 convictions for robbery, Mr. Turner has a very substantial criminal record, albeit as a juvenile, and that factor itself is an aggravating factor. [¶] Aside from the 1995 convictions, he has engaged in violent conduct which indicates a serious danger to society. His prior performance on parole was unsatisfactory. And there are no factors in mitigation. Accordingly, the aggravating factors outweigh the mitigating factors.”
Relying on Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant now contends the trial court violated his Sixth Amendment right to trial by jury by imposing upper term sentences based on factors not admitted by appellant or found by the jury to be true beyond a reasonable doubt. After appellant’s sentencing, the California Supreme Court undertook an extensive analysis of Blakely, Apprendi, and United States v. Booker (2005) 543 U.S. 220, and concluded that imposition of an upper term sentence, as provided by California law, was constitutional. (People v. Black (2005) 35 Cal.4th 1238, 1244, 1254, 1261 (Black I). Recently, however, the United States Supreme Court overruled Black I in part and held that California’s determinate sentencing law “violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].) The middle term prescribed under California law, not the upper term, is the relevant statutory maximum. (Ibid.)
Although appellant was sentenced some three weeks after Blakely and before Black I, we reject respondent’s claim he forfeited the issue by failing to object, at the time of sentencing, on Sixth Amendment grounds. (See People v. Vera (1997) 15 Cal.4th 269, 276-277; People v. Belmares (2003) 106 Cal.App.4th 19, 27, disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228.)
The United States Supreme Court remanded Black I to the California Supreme Court for reconsideration in light of Cunningham. In People v. Black (2007) 41 Cal.4th 799 (Black II), our state high court held that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to a jury trial.” (Black II, at p. 812.) The court explained that “[t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence – and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ [Citation.] Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, supra, 41 Cal.4th at p. 813, fn. omitted.)
The state Supreme Court rejected the argument that, since a trial court cannot impose the upper term unless it considers all aggravating circumstances and determines they justify the upper term and outweigh any mitigating circumstances, a defendant has the right to a jury trial on all applicable aggravating circumstances even if one has been established in accordance with Blakely. (Black II, supra, 41 Cal.4th at p. 814.) The court stated: “The issue to be determined in each case is whether the trial court’s fact finding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Id. at p. 815.) The court concluded: “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
In the present case, the RPO revealed that appellant had an extensive record of criminal conduct. Appellant did not challenge the accuracy of this account. (See Black II, supra, 41 Cal.4th at p. 818, fn. 7.) The trial court expressly found appellant’s record to be “very substantial,” even aside from the 1995 convictions. Black II, which involved the aggravating circumstances that the defendant’s prior convictions were numerous and of increasing seriousness, makes it clear that the trial court’s reference to appellant’s substantial record brought appellant’s case within the recidivism exception to the jury trial right that consistently has been recognized by the United States Supreme Court. (Id. at pp. 818-820; see, e.g., Apprendi, supra, 530 U.S. at p. 488; Almendarez-Torres v. United States (1998) 523 U.S. 224, 230, 243, 244 (Almendarez-Torres).) Indeed, appellant’s case presents a classic example of the recidivism exception. Since appellant’s criminal history established an aggravating circumstance “that independently satisf[ied] Sixth Amendment requirements and render[ed] him eligible for the upper term,” “he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence .…” (Black II, supra, 41 Cal.4th at p. 820.) In short, there was no federal constitutional error. (Compare People v. Sandoval (2007) 41 Cal.4th 825 [6th Amend. rights violated by imposition of upper term sentence where no aggravating circumstance cited by trial court fell within Blakely exceptions of fact of prior conviction or facts established by jury’s verdict or admitted by defendant].)
Appellant says, however, that the prior conviction exception is inapplicable here, because, by its terms, the exception applies only to prior convictions, and juvenile adjudications are not convictions. (See People v. West (1984) 154 Cal.App.3d 100, 107-108.) While we agree that juvenile adjudications are not deemed to be criminal convictions under California law, we conclude they may be used to establish recidivism, which is, Almendarez-Torres makes clear, the relevant sentencing factor, and “a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence. [Citations.]” (Almendarez-Torres, supra, 523 U.S. at pp. 230, 243.) The United States Supreme Court subsequently explained in Apprendi: “Both the certainty that procedural safeguards attached to any ‘fact’ of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that ‘fact’ in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” (Apprendi, supra, 530 U.S. at p. 488, fn. omitted.) As noted, appellant did not challenge the accuracy of the RPO’s account of his record.
In In re Winship (1970) 397 U.S. 358, the United States Supreme Court held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (Id. at p. 364.) The court proceeded to hold that the standard is also applicable during the adjudicatory stage of a delinquency proceeding. (Id. at p. 368.) The high court has also determined, however, that “the juvenile court proceeding has not yet been held to be a ‘criminal prosecution,’ within the meaning and reach of the Sixth Amendment .…” (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 541 (plur. opn. of Blackmun, J.).) The applicable due process standard in juvenile proceedings is fundamental fairness, and a jury is neither a necessary component of accurate factfinding nor even a necessary part of every criminal process that is fair and equitable. (Id. at pp. 543, 547 (plur. opn. of Blackmun, J.).) Accordingly, there is no federal constitutional right to a jury trial in juvenile matters. (Id. at p. 545 (plur. opn. of Blackmun, J.).)
From the foregoing, we conclude that appellant received, in conjunction with his juvenile adjudications, all of the rights and procedural safeguards to which he was constitutionally entitled. He neither claimed otherwise nor disputed the “fact” of those adjudications. Under the circumstances, we conclude that establishment of the traditional sentencing factor of recidivism by use of his juvenile adjudications, which were either admitted by him or necessarily proven beyond a reasonable doubt in juvenile court, did not violate the federal Constitution under Cunningham, Blakely, and Apprendi. (See People v. Palmer (2006) 142 Cal.App.4th 724, 733-734 [upholding use of prior Nevada driving-under-the-influence conviction, for which Nevada law provided no right to jury trial, to enhance sentence for current California driving-under-the-influence conviction]; People v. Lee (2003) 111 Cal.App.4th 1310, 1313-1316 [rejecting challenge to use of prior juvenile adjudication as strike based on fact defendant had no right to jury trial during juvenile proceeding]; People v. Bowden (2002) 102 Cal.App.4th 387, 391-394 [same]; People v. Thomas (2001) 91 Cal.App.4th 212, 222-223 [concluding Almendarez-Torres is controlling due process authority with respect to recidivism findings that enhance sentence & are unrelated to elements of crime; that opinion, which was not overruled by Apprendi, does not require full due process treatment of issue of recidivism]; State v. Merrills (2007) 37 Kan.App.2d 81 [149 P.3d 869, 871-872] [rejecting claim that juvenile adjudications could not be considered as criminal history for purpose of enhancing sentence under Blakely & Apprendi; as juvenile adjudications are included within historical cloak of recidivism & enjoy ample procedural safeguards, Apprendi exception for prior convictions encompasses juvenile adjudications]; State v. Kuhlman (2006) 135 Wash.App. 527 [144 P.3d 1214, 1217-1218] [adopting “majority approach” that looks to overall due process protections of juvenile justice system & deems juvenile adjudications to fall within Apprendi’s prior conviction exception].) We reject the holding of the Ninth Circuit Court of Appeals in United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194, which limited Apprendi’s prior conviction exception “to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt.” (See People v. Lee, supra, 111 Cal.App.4th at pp. 1314-1316; People v. Bowden, supra, 102 Cal.App.4th at pp. 392-394; see also Boyd v. Newland (9th Cir. 2006) 467 F.3d 1139, 1152 [recognizing that California courts, as well as courts of several federal circuits, disagree with Tighe; since Tighe “does not represent clearly established federal law ‘as determined by the Supreme Court of the United States,’” California court’s use of juvenile adjudication as sentencing enhancement could not be found contrary to or involving unreasonable application of Supreme Court precedent].)
The question whether a prior juvenile adjudication of a criminal offense can constitutionally subject a defendant to the provisions of the three strikes law, given the absence of a right to jury trial in juvenile wardship proceedings, is currently pending before the California Supreme Court. (People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847.)
Since a legally sufficient aggravating factor was justified based on appellant’s criminal record, and this factor was found by the trial court to exist, it follows that that court did not commit federal constitutional error by referring to appellant’s having engaged in violent conduct indicating a serious danger to society and to his prior unsatisfactory performance on parole. (Black II, supra, 41 Cal.4th at p. 813.) Nor did the court abuse its discretion under People v. Watson (1956) 46 Cal.2d 818, 836, as it properly found no circumstances in mitigation and was careful not to violate the proscription against dual use of facts contained in California Rules of Court, rule 4.420(c). Imposition of the upper term was therefore proper.
Appellant initially challenged, under Blakely and Apprendi, imposition of consecutive terms on counts 2, 3, and 4. The bases cited by the trial court for imposing such terms were the separate nature of the offenses and the fact there were separate victims. In his supplemental brief filed after Cunningham, appellant did not repeat his challenge to the consecutive terms. In any event, the California Supreme Court has rejected the argument. (Black II, supra, 41 Cal.4th at pp. 820-823.) Assuming the issue is still before us, we do likewise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Our original review of the record revealed that the abstract of judgment contained a minor clerical error, viz., entry of “U” instead of “M” in the “term” column with respect to counts 2, 3, and 4. We previously directed the trial court to prepare an amended abstract of judgment correcting the error and to forward a certified copy of same to the appropriate authorities, and we presume that court did so.
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, J., DAWSON, J.