P. v. Gonzales

Filed 7/27/06 P. v. Gonzales CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Raul Gonzales appeals his conviction, by jury, of four counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)[1]), and two counts of discharging a firearm with gross negligence. (§ 246.3.) The trial court found that appellant had two prior serious felony convictions from the state of New Mexico and sentenced him, as a third strike offender, to a total term in state prison of 34 years to life. He contends on appeal that the trial court erred when it denied his motion to sever his trial from that of his codefendant, when it treated his prior convictions as strikes and when it refused to "strike" one or more of those convictions in the interests of justice pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We affirm.

Facts

In the early morning hours of October 25, 2003, a group of two women and five men were walking on State Street in Santa Barbara, toward their parked cars. As the women crossed the street, a white car appeared. One of the men inside the car shouted something disrespectful to them. The white car drove off but soon returned. Four of the men in the group started talking to the men in the car. The passenger pulled a gun from underneath his seat. The men outside the car decided to "back off." They told the others to leave because the men in the car had a gun. Moments later, the white car reappeared. Appellant got out of the passenger side holding a gun in his hand, saying, "What's up pussies?" The men ran for cover behind a nearby dumpster and inside a portable toilet. Appellant fired two shots at the group, then ran back to the white car which sped away.

Three Santa Barbara police officers heard the gunshots at about 1:45 a.m. They ran toward the sound. When Officer Thompson reached the corner of Cota and State Street, a pedestrian pointed to a white Grand Am and yelled, "That's the vehicle." Officer Thompson pointed his sidearm at the driver of the Grand Am and yelled, "Stop. Police." The Grand Am drove off. Officer Zbinden followed the Grand Am in his patrol car. The women were also chasing the Grand Am in their car. They were soon stopped by Officer Beecher. One of the women pointed at the white Grand Am and told Officer Beecher that its occupants had just shot at her friends.

Officer Zbinden continued to follow the Grand Am. After a short pursuit, the car was forced to stop when a taxi cab driver parked his vehicle in its path. Appellant, who appeared to be under the influence of alcohol, got out of the passenger side of the Grand Am, shouting profanities and telling the officer, "Go ahead, shoot me." He was arrested without being shot.

When officers searched the Grand Am, they found a .45 caliber semi-automatic handgun and a magazine loaded with .45 caliber bullets hidden in the back of the car, behind a large speaker box. Two .45 caliber casings were found in the area where the shots were fired. The next day, two .45 caliber bullets were recovered from the same area.

A fingerprint matching appellant's left ring finger was found just in front of the trigger guard on the handgun recovered from the Grand Am. Appellant had gun shot residue on his hands at the time of his arrest. The bullets and casings recovered from the crime scene were fired from the recovered handgun.

Appellant's Prior Convictions

In 1994, appellant was the subject of a juvenile adjudication in New Mexico for aggravated battery. On that occasion, he shot a person in the leg with a handgun. In February 2000, he pleaded guilty to five felony counts of aggravated assault, in violation of New Mexico Statutes Annotated, section 30-3-2. Those assaults occurred when appellant fired a handgun into the front end of a parked car. Five people were in the car at the time. The plea agreement provides, however, that "The State will not seek the firearm enhancement on any count."

Discussion

Motion to Sever

Appellant contends the trial court erred when it denied his motion to sever his trial from that of his codefendant, Ramirez. Although section 1098 expresses a legislative preference for joint trials, separate trials "are permitted in the discretion of the trial court . . . and whether a trial court's denial of a severance motion constitutes an abuse of that discretion is judged on the facts as they appeared at the time the court ruled on the motion." (People v. Hardy (1992) 2 Cal.4th 86, 167.) A joint trial is appropriate where codefendants are alleged to have committed "common crimes involving common events and victims . . . ." (People v. Keenan (1988) 46 Cal.3d 478, 499-500.) Conversely, separate trials should be granted " ' "in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony." ' " (People v. Hardy, supra, 2 Cal.4th at p. 167, quoting People v. Massie (1967) 66 Cal.2d 899, 917.)

The facts of this case, as they appeared when the trial court made its ruling, provided no basis for separate trials. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41.) As the trial court noted, this "is a classic case for a single trial," because they acted together to assault the same victims. Each defendant's trial would feature the same witnesses and other evidence. The vague possibility that, if tried first, Ramirez might provide some exculpatory testimony for appellant was not enough to mandate separate trials. Ramirez made no pretrial statements indicating he could or would corroborate appellant's self-defense theory. The trial court was not obligated to delay appellant's trial for the months or years required to finalize Ramirez's conviction based solely on counsel's offer of proof concerning his expected testimony.

Moreover, the trial court's ruling could not possibly have prejudiced appellant. Error in denying a motion to sever requires reversal "only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial." (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.) There is no such reasonable probability here. Appellant and Ramirez were arrested within minutes of the shooting. The victims identified appellant as the shooter. His fingerprint was on the gun and gunshot residue was on his hands. Given this overwhelming evidence, there is no reason to believe that appellant would have obtained a better result in a separate trial.

Jury Instructions

Appellant contends the jury was not properly instructed on the intent element of assault. Although he concedes that the instruction given, CALJIC No. 9.00, is consistent with our Supreme Court's controlling authority on the issue, People v. Williams (2001) 26 Cal.4th 779, he urges us to "not[e] the historical inaccuracy and inadequacy of the Williams decision." We are, of course, bound to follow Williams. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We decline the invitation to criticize it.

Prior Convictions

The trial court sentenced appellant as a third strike offender based on prior convictions from the State of New Mexico. Appellant contends this was error because at least one of the prior convictions does not qualify as a strike under California law. (§ 667, subd. (d)(2).) If the prior convictions are strikes, appellant contends the trial court abused it discretion when it refused to strike them in the interests of justice. (People v. Superior Court (Romero), supra, 13 Cal.4th 497.) There was no error.

All of appellant's prior convictions are for aggravated assault. In 1994, while a juvenile, he used a handgun to shoot another person in the leg. In 1999, as an adult, appellant pleaded guilty to five counts of aggravated assault. In the plea agreement, the State of New Mexico agreed that it would "not seek the firearm enhancement on any count." The transcript of the preliminary hearing from that matter establishes that appellant fired a handgun at the front end of a car containing five women. When he shot at the car, it was surrounded by several other people who were trying to prevent the women from driving away.

Assault with a deadly weapon constitutes a strike for purposes of the three strikes law. (§§ 667, subd. (d)(1), 1192.7, subd. (c)(31).) Appellant concedes that the 1994 juvenile adjudication constitutes a strike because he used a deadly weapon in committing that offense. He contends, however, that the 1999 convictions are not strikes because the State of New Mexico agreed that it would not seek the firearm enhancement with respect to those offenses. He further contends that his conduct on that occasion did not satisfy the elements of assault with a deadly weapon under California law because he shot at the car rather than at the people inside it. These contentions are without merit.

First, the trial court was lawfully considered the transcript of the preliminary hearing that preceded appellant's guilty pleas, to determine whether his offenses qualify as strikes under California law. (People v. Myers (1993) 5 Cal.4th 1193, 1201; People v. Solis (2001) 90 Cal.App.4th 1002, 1018.) Second, appellant's plea agreement did not stipulate away his use of a firearm. The State of New Mexico agreed only that it would not seek an enhancement of his sentence based on the firearm use. These are separate issues under New Mexico law. The relevant New Mexico statute defines aggravated assault as "A. unlawfully assaulting or striking at another with a deadly weapon; [¶] B. committing assault by threatening or menacing another while [concealing one's identity]; or [¶] C. willfully and intentionally assaulting another with intent to commit any felony." (N.M. Stat. Ann. § 30-3-2.) The sentence for this offense "shall be increased by one year" when a trial court or jury makes a separate finding of fact that a firearm was used. (N.M. Stat. Ann. § 31-18-16.) Here, the State of New Mexico agreed to forego enforcement of section 31-18-16. It did not agree that appellant committed an offense other than the one defined in section 30-3-2.

Third, appellant's offenses clearly satisfy the elements of assault with firearm in California. (§ 245.) Appellant personally fired a handgun at a car carrying five people. At the time, the car was surrounded by others who were trying to prevent it from driving away. A person who intentionally fires a gun at a car that is occupied and surrounded by others "undoubtedly" has actual knowledge of "facts establishing that his act by its nature would directly, naturally and probably result in a battery." (People v. Williams, supra, 26 Cal.4th at p. 790.) This conduct qualifies as assault with a firearm, a serious felony under section 1192.7, subd. (c)(31).

Nor could we possibly conclude that the trial court abused its broad discretion in refusing to strike the prior convictions pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497. This is the third time appellant has engaged in conduct that could, on each occasion, have resulted in the death of one or more of his victims. There are no facts in the record indicating that appellant "may be deemed outside the . . . spirit [of the Three Strikes law], in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)

Conclusion

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Brian E. Hill, Judge

Superior Court County of Santa Barbara

______________________________

Keffrey S. Kravitz, The Cochran Firm, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Timothy M. Weiner and Daniel Change, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.