P. v. Castro

Filed 10/23/07 P. v. Castro CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed as modified.

Stephen M. Lathrop, 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, Lilia E. Garcia and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant stands convicted of attempted murder and other crimes. He contends there is insufficient evidence to support his conviction for dissuading a witness, his confrontation rights were violated, and his sentence is incorrect and unconstitutional. We find his sentence must be modified to strike one of the enhancements, but in all other respects, we affirm the judgment.

* * *

On the night of June 22, 2000, Rogelio Delgado was stopped at an intersection when appellant, a rival gang member, walked up to his car and fired three gunshots. Two of the shots hit Delgados vehicle, but he was not hurt. Following the shooting, appellant turned toward Christina Rodriguez, who was stopped directly behind Delgados car. Appellant pointed his gun at her for about three seconds, but ran away without firing. Rodriguez identified appellant to the police, saying he was a gang member she recognized from school. She also picked appellant out of a photo lineup. At trial, though, she was unable to identify appellant and claimed she could not remember her statements to the police.

The defense was alibi. Probation Officer Russell Bauer testified he successfully petitioned the court to be relieved of appellants supervision in April 2000, based on his belief appellant had gone to Mexico. But, Bauer did not have any direct evidence appellant was out of the country at the time of the shooting.

The jury convicted appellant of attempted first degree murder, shooting at an occupied vehicle, dissuading a witness, street terrorism and two counts of brandishing a firearm. It also found various firearm and gang allegations to be true. The court sentenced appellant to 38 years and 4 months to life in prison, which included a consecutive term on the dissuading a witness count.

I

Appellant contends there is insufficient evidence to support his conviction for dissuading a witness from reporting a crime. (Pen. Code,  136.1, subd. (b)(1).)^[1] We disagree.

When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the verdict, drawing all inferences that reasonably support it, and determine whether it contains substantial evidence that is, evidence which is reasonable, credible, and of solid value from which a trier of fact could rationally find the defendant guilty beyond a reasonable doubt. [Citations.] In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.] Moreover, because it is the jury, not the reviewing court, that must be convinced of the defendants guilt beyond a reasonable doubt, we are bound to sustain a conviction that is supported by only circumstantial evidence, even if that evidence is also reasonably susceptible of an interpretation that suggests innocence. [Citation.] (People v. Little (2004) 115 Cal.App.4th 766, 771.)

The last point is important because appellant argues a rational conclusion from the evidence is that fearful that a rival gang member was in the vehicle following Delgado[, he] pointed the gun at Rodriguez in order to protect himself from a violent reaction by that person. This, he argues, would mean he lacked the requisite intent to dissuade her. We agree this is a viable interpretation of the evidence. But an equally plausible interpretation is that knowing Rodriguez saw him fire at Delgado, appellant aimed his gun at her in order to send a very forceful, albeit unspoken, message: Dont even think about reporting what you saw to authorities because if you do, you will become a target!

Appellant had just committed a serious crime by shooting at Delgado. It would be logical for him to be concerned about potential witnesses. And since Rodriguez had a clear view of the shooting from her vehicle, appellant would have had a strong motive to dissuade her from getting involved. Also, Probation Officer Bauer testified that gang members often retaliate against witnesses who cooperate with authorities, and what better way for appellant to remind Rodriguez of that and pressure her to keep quiet than by pointing a gun at her?

Although there is no direct proof of appellants intent, that is hardly surprising. Intent is rarely susceptible of [such] proof and usually must be inferred from the facts and circumstances surrounding the offense. [Citations.] (People v. Pre (2004) 117 Cal.App.4th 413, 420.) As noted above, the inferences we must draw in this regard are those that most favor the judgment. In light of that, we are convinced appellants conduct and the surrounding circumstances constitute substantial evidence to support the jurys determination he acted with the specific intent to dissuade Rodriguez from reporting a crime. We therefore reject appellants challenge to the sufficiency of the evidence.

II

Appellant contends his confrontation rights were violated when the prosecution was allowed to present evidence regarding a photograph of him, without producing the actual photo. We do not believe this infringed appellants Sixth Amendment rights.

Probation Officer Bauer testified that in October 2000, the police found a photograph of appellant and fellow gang member George Hernandez during a search of Hernandezs residence. Bauer said the photo was date stamped July 20, 2000, which was roughly a month after the shooting. He admitted the date did not necessarily reflect when the photo was taken, and instead may have been when the film was developed. He said he did not have the photo as it had been used in an earlier, unrelated case involving Hernandez.

Following this testimony, appellant requested a copy of the photograph, and the court held an Evidence Code section 402 hearing on the issue. Detective Rubalcava testified the photo had been booked into evidence in Hernandezs case and could not be found. Bauer testified that at appellants preliminary hearing, he disclosed the photo to appellants then-attorney (appellant had a different attorney at trial), but the attorney did not ask to see it or request a copy.

In seeking a mistrial, appellant argued the prosecutions failure to produce the photograph at his trial infringed his right to confront and cross-examine Bauer. The court denied the motion but said it would consider giving a jury instruction on the issue, or granting the defense a continuance. Appellant did not take the court up on either of these options. Following the verdict, he moved for a new trial over the photograph issue, but the motion was denied.

Appellant argues the prosecutions failure to produce the photograph at his trial effectively restricted him from cross-examining Bauer about the photo, thereby infringing upon both his confrontation rights and fundamental principles of fairness. We cannot agree. The confrontation clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the [clause] is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination . . . . (Delaware v. Fensterer (1985) 474 U.S. 15, 21-22.) The clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. (United States v. Owens (1988) 484 U.S. 554, 559.)

During cross-examination, Bauer testified the stamp date on the photograph of appellant was July 20, 2000, a date which preceded his testimony by over five years. This opened the door for extensive questioning about his ability to accurately recall the stamp date. In addition, the defense got Bauer to admit the stamp date did not really carry much significance to him because it could very well have represented when the photo was developed, as opposed to when it was taken. The defense also grilled Bauer about his inability to produce the photo, suggesting it reflected sloppy police work. All things considered, we believe appellant had an opportunity to effectively cross-examine Bauer about the photo. Indeed, he fails to explain what more he would or could have done in this regard if the photo had been produced. No constitutional infringement has been shown.

III

Pursuant to section 12022.53, subdivision (c), the trial court enhanced appellants sentence for attempted murder 20 years, based on the fact he personally and intentionally discharged a firearm during the commission of that offense. The court also imposed, but stayed, an additional enhancement under section 12022.5, based on the fact appellant personally used a firearm during the attempted murder. Appellant argues that imposition of the section 12022.5 enhancement was barred under section 12022.53, subdivision (f), and we agree.^[2]

Section 12022.53, subdivision (f) provides, An enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. Since the trial court imposed an enhancement pursuant to section 12022.53, subdivision (c), it could not impose an additional enhancement under section 12022.5. That is what the statute says, and that is the way it has been interpreted. (People v. Bracamonte (2003) 106 Cal.App.4th 704.) Finding the language of section 12022.53, subdivision (f) plain and clear, the Bracamonte court determined a section 12022.5 enhancement must be stricken when another enhancement is imposed under section 12022.53. (People v. Bracamonte, supra, 106 Cal.App.4th at pp. 712-713, fn. 5.)

The Attorney General disagrees. He argues the trial court acted properly in imposing and then staying appellants section 12022.5 enhancement because the California Rules of Court preclude any other action. In particular, rule 4.447 states, No finding of an enhancement shall be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. However, citing section 12022.53 in particular, the Advisory Committee Comment to rule 4.447 recognizes, Statutory restrictions may prohibit or limit the imposition of an enhancement in certain situations. In other words, the court rule must bow to statutory authority in some situations. (See generally Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 532 [court rules promulgated by the Judicial Council may not conflict with governing statutes].) This case presents such a situation: Section 12022.53, subdivision (f) expressly prohibits the imposition of the section 12022.5 enhancement in the circumstances presented.

Nonetheless, the Attorney General argues rather than striking appellants section 12022.5 enhancement, it makes more sense to impose the enhancement and then stay it, as the trial court did here, because his section 12022.53, subdivision (c) enhancement could be reversed somewhere down the road. But if that occurred, then the section 12022.5 finding would be revived by operation of law (People v. Bracamonte, supra, 106 Cal.App.4th at pp. 712-713, fn. 5), so, there would be no danger of appellant escaping the additional punishment that section 12022.5 calls for. Thus, from both a legal and public safety standpoint, there is just no justification for imposing the section 12022.5 enhancement in this case. We will therefore modify appellants sentence to strike the enhancement.

IV

Relying on Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] and Blakely v. Washington (2004) 542 U.S. 296, appellant claims the imposition of a consecutive sentence on the dissuading a witness count violated his Sixth Amendment right to a jury trial. As a general rule, Cunningham and Blakely require a jury trial on any fact that exposes a defendant to an elevated, upper term sentence. The United States Supreme Court has not decided whether this rule applies to consecutive sentences. Our own Supreme Court has, though; it has decided the imposition of consecutive sentences does not implicate a defendants jury rights under the Sixth Amendment. (People v. Black (2007) 41 Cal.4th 799, 820-823.) As we are bound by this decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we uphold the imposition of consecutive sentences in this case.

DISPOSITION

Appellants section 12022.5 enhancement on count one, attempted murder, is stricken, and as so modified, the judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

FYBEL, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] This issue is currently pending before the Supreme Court in People v. Gonzalez (2006) 146 Cal.App.4th 327, review granted March 14, 2007, S149898.