P. v. Gonzalez
Filed 9/5/13 P. v. Gonzalez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES GONZALEZ et al.,
Defendants and Appellants.
E054599
(Super.Ct.No.
FVA900485)
O P I N I O N
APPEAL from the Superior Court of
Bernardino County.
Dwight W. Moore, Judge. Affirmed
in part and reversed in part with directions.
Stephen M. Lathrop, under
appointment by the Court of Appeal, for Defendant and Appellant Charles
Gonzalez.
David P. Lampkin, under
appointment by the Court of Appeal, for Defendant and Appellant Frank Marshall
Martinez.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, and Barry Carlton, Peter Quon, Jr., and Anthony Da
Silva, Deputy Attorneys General, for the Plaintiff and Respondent.
I. INTRODUCTION
A jury
found defendants Charles Gonzalez and Frank Marshall Martinez guilty as charged
of the premeditated, attempted murders of Lamar Clemmons and Derek Edwards (counts
1 & 2), assaulting Clemmons and Edwards with a firearm (counts 3 & 4),
and the second degree robbery of Edwards (count 5). (Pen. Code, §§ 664, 187, subd. (a), 245,
subd. (a)(2), 211.)
title="">[1] The jury found multiple firearm enhancements
true in each count, and great bodily injury (GBI) enhancements against Martinez in counts 4 and 5. (§§ 12022.53, subds. (b), (c), (d),
12022.5, subd. (a), 12022.7, subd. (a).)
Gonzalez was sentenced to 54 years to life, and Martinez was sentenced to 59 years to life.
We reverse
Martinez’s conviction in count 1 and Gonzalez’s
convictions in counts 2 and 4 based on insufficient evidence. The prosecution tried the case based solely
on the theory that each defendant directly perpetrated each attempted murder
and each firearm assault on each victim.
Hence no aiding and abetting instructions were given on counts 1 through
4; they were only given on the robbery charge in count 5. As will appear, this was a mistake on the
part of the prosecution.
We also
agree Gonzalez is entitled to three days of additional presentence custody
credits (1,048 days, not the 1,045 awarded), and a new minute order and
corrected abstract of judgment must be issued to show that Gonzalez’s personal
use enhancement in count 3 is based on section 12022.5, subdivision (a), not
section 12022.53, subdivision (b), because assault with a firearm is not an
offense listed in section 12022.53, subdivision (a). We reject defendants’ other claims of error,
affirm the judgment in all other respects, and remand the matter for
resentencing.
II. FACTUAL AND PROCEDURAL BACKGROUND
A.
The crimes occurred during the early morning
hours of March 11, 2009. The victims, Clemmons and Edwards, were
friends from Illinois and had
known each other for many years. Edwards
met Martinez during 2007 when they
were in federal custody in Kansas
and assigned to the same drug treatment program. They became friends and gambled
together. At some point Edwards told Martinez
he expected to receive around $14,000 from a social security settlement upon
his release from federal custody in November 2008.
Between November 2008 and March 9, 2009, Edwards and Martinez
had several telephone conversations and exchanged several text messages. Martinez
was in California, and Edwards
told Martinez he had received the
settlement money and wanted to visit him in California. Martinez
encouraged Edwards to come to California. He told Edwards they could hang with girls,
then head to Las Vegas to
gamble. Edwards invited Clemmons to come
along and bought an airline ticket for Clemmons.
On March 10, Edwards and Clemmons flew into Los
Angeles International Airport
(LAX) on separate flights. Edwards
arrived first and met Martinez
outside the terminal at 9:00 p.m.,
bringing with him $9,000 from the settlement.
was in the passenger seat of a black Lexus.
Gonzalez was driving the Lexus and introduced himself as “Chucky.†Martinez
introduced Gonzalez as his “bro.â€
Edwards’s bag was placed in the trunk of the Lexus. Shortly thereafter Clemmons arrived, bringing
with him $2,800 and a bag containing a laptop computer, a digital camera, and
clothing that was also placed in the trunk of the Lexus.
After leaving LAX, the four men briefly stopped
at the home of a female friend of defendants, then had dinner in Azusa. After dinner, they drove around for a while
before stopping at a gas station in Fontana
shortly before 1:00 a.m. The cashier recalled seeing all four men at
the gas station and helping two of them with purchases. A video surveillance recording showed the men
at the gas station at 12:54 a.m. on
March 11. At the gas station, Gonzalez
changed out of his blue Los Angeles Dodgers jacket and put on a flannel jacket
and gloves, saying that he had arthritis in his hands.
When they left the gas station, Gonzalez was
driving, Martinez was in the front
passenger seat, Clemmons was in the backseat behind Gonzalez, and Edwards was
in the backseat behind Martinez. Edwards said he wanted to go to a motel to
sleep and shower before leaving for Las Vegas
the next morning. Gonzalez drove for
approximately 8 to 10 minutes up a two lane dirt road on a mountain or
hill. It was extremely dark, and no
street lights, cars, or people were visible for miles. Gonzalez and Martinez were saying, “‘There’s
nothing out here.’â€
Gonzalez then pulled the car over. Martinez quickly turned around and pointed a
gun at Clemmons and Edwards, saying, “‘All right, motherfuckers.’†Clemmons opened the rear driver’s side door
and ran away from the car towards an open field. Gonzalez then got out of the
car, fired several shots at Clemmons from “right outside the vehicle,†and
chased after Clemmons. Edwards
saw a gun in Gonzalez’s hand, heard four or five shots, and saw the
gunfire.
As
Gonzalez was shooting at Clemmons, Martinez and Edwards were still in the
car. Edwards estimated Gonzalez shot at
Clemmons for “no longer than a minute or so†or “a couple [of] minutes.†After Gonzalez stopped shooting at Clemmons,
Edwards got out of the car and ran in the same direction as Clemmons. Edwards knew he followed “the same exact
path†as Clemmons because he and Clemmons discussed their experience
afterward. Martinez then got out of the
car and fired four or five shots at
Edwards as Edwards ran. As he
was running, Edwards heard four or five shots.
One of the shots hit Edwards in
the middle of his lower back, and he fell to the ground 15 to 30 feet from the
car, unable to move his leg. Edwards
acknowledged he did not actually see Martinez shoot him, but testified he
believed Martinez shot him because, he said, “it was only two people out there
at that point.â€
As Clemmons was running away, he heard three or
four shots, then felt pain in his back and buttocks. He did not look back or see a gun in Gonzalez’s
hand, but believed Gonzalez was chasing him and shot him because Gonzalez was
in the driver’s seat, and Clemmons heard the driver’s door shut just after he
got out of the car and began running.
Clemmons continued running after he had been shot. As he continued running, he heard three or
four more gunshots, then heard Edwards yell “‘Ah.’â€
As
Edwards lay on the ground, Martinez walked up to him, still carrying a gun and
aimed it at Edwards. Martinez
ordered Edwards to give him the money.
Edwards reached into his pocket, pulled out some money, and threw it at
Martinez. Martinez asked where the rest
of the money was, and Edwards told him it was in his bag in the trunk of the
car.
also walked up to Edwards but from the
opposite direction as Martinez, and with a gun still in his hand stood
near Edwards while Martinez demanded the money from Edwards. Martinez then asked Edwards, “‘Did I shoot
you?’†or “‘I shot you.’†Edwards
responded “‘[y]es’†and that “‘[i]t’s all right,’†not wanting Martinez to know
he was seriously in
jured. Martinez and Gonzalez then
walked back to the car.
Martinez and Gonzalez briefly spoke to each other
near the trunk of the car, then got into the car and drove away. Edwards called 911 with his cell phone, but
the police were unable to find his location and he had no idea where to tell
them he was. Edwards then called
Martinez and left a message, hoping Martinez would come back and take him to
the hospital. Edwards feared he would
bleed to death. Edwards estimated that
30 minutes passed between the time they left the gas station and he was shot.
Michael Landmesser lived in a home approximately
one mile from the scene of the shootings.
He was sleeping at 1:20 a.m. when he heard pounding on his front
door. He went to the door and saw
Clemmons screaming that he had been shot and his friend was lying on a road
nearby. Landmesser called 911, and
officers arrived at his house within minutes.
Clemmons was shot in the buttocks and had $2,264 on his person. He was taken to the hospital and treated for
the gunshot wound and a
fractured pelvis.
After officers spoke with Clemmons, they found
Edwards lying face down on a dirt road off of Lytle Creek Road, bleeding from a
gunshot wound to his lower back and slipping in and out of consciousness. Edwards told an officer that Martinez shot
him. He had $8,217 and two cell phones
on his person. A third cell phone was
found where the shootings took place.
Edwards was treated at the hospital, and suffered permanent nerve damage
in his lower back and leg.
Later during the day on March 11, 2009, police
officers went to the gas station in Fontana to view and retrieve surveillance
videotapes. The videotapes showed
Gonzalez in his blue Los Angeles Dodgers jacket near the entrance to the gas
station, and Martinez standing in front of the counter inside the gas
station. They also showed Clemmons
entering the gas station and Edwards in the doorway of the gas station. Martinez’s mother identified Martinez and
Gonzalez from still photographs taken from the videotapes.
Also later during the day on March 11, 2009, the
day of the shootings, Clemmons met with a detective and identified Martinez
from a six-pack photographic lineup.
After some confusion, Clemmons also identified Gonzalez from another
six-pack photographic lineup. At trial,
Clemmons explained that another person in the same photographic lineup as
Gonzalez looked like Gonzalez, but was not Gonzalez. The person Clemmons thought looked like
Gonzalez was Martinez’s brother, Cisco Viramontes. Viramontes was arrested in connection with
the case but police later stopped investigating him.
Edwards met with the same detective on March 11,
2009, was shown the same photographic lineup that was shown to Clemmons, and
also told the detective that the photograph of Viramontes looked like the
driver. Edwards later identified
Gonzalez as the driver, however.
Gonzalez was arrested on March 26, 2009, in San Diego, and Martinez was
arrested on August 14, 2009, in Mexicali.
B. Defense
Case
The defense did not call any witnesses or present
any affirmative evidence. In closing argument, neither defense counsel
connected the elements of the charges with the evidence. Instead, both counsel claimed each victim’s
testimony was unreliable. Counsel for
Gonzalez also emphasized that both victims initially believed Viramontes might
have been the driver, and that Clemmons initially believed the driver was Black
while Gonzalez is Hispanic.
C.
Verdicts and Findings
The jury
found each defendant guilty as charged on all five counts—the attempted murders
of Clemmons and Edwards in counts 1 and 2, assaulting Clemmons and Edwards with
a firearm in counts 3 and 4, and the robbery of Edwards in count 5. (§§ 664, 187, subd. (a), 245, subd.
(a)(2), 211.) The jury also found the
attempted murders were premeditated.
(§ 664, subd. (a).) Multiple
firearm enhancement allegations were also found true in each count.
Specifically,
in counts 1 through 5, the jury found that each defendant personally used a
firearm. (§§ 12022.53, subd. (b),
12022.5, subd. (a).) And in counts 1, 2,
and 5, the jury found each defendant personally discharged a firearm. (§§ 12022.53, subd. (c), 12022.5, subd.
(a).) In counts 2 and 5, the jury found
that Martinez personally discharged a firearm causing GBI to Edwards
(§§ 12022.53, subd. (d), 12022.5, subd. (a)), and in counts 4 and 5, that
Martinez personally inflicted GBI on Edwards (§ 12022.7, subd. (a)).
In count
1, the jury deadlocked and a mistrial was declared on whether Gonzalez
personally discharged a firearm causing GBI to Clemmons. (§ 12022.53, subd. (d).) And in count 3, the jury deadlocked and a
mistrial was declared on whether Gonzalez personally inflicted GBI on Clemmons. (§ 12022.7.) Thus, no section 12022.53, subdivision (d)
(discharge causing GBI) or 12022.7 (GBI) enhancements were found true against
Gonzalez.
D.
Gonzalez
was sentenced to 54 years to life in prison—consecutive seven-year-to-life
terms on counts 1 and 2, plus 20 years for each personal discharge enhancement
on counts 1 and 2. His personal use
enhancements on counts 1 and 2 were stricken, and additional terms were imposed
but stayed on counts 3, 4, and 5.
Martinez
was sentenced to 59 years to life—consecutive seven-year-to-life terms on
counts 1 and 2, plus 25 years to life for the section 12022.53, subdivision (d)
enhancement on count 2, plus 20 years for the personal discharge enhancement on
count 1. Martinez’s personal use
enhancement on count 1 was stricken, and his personal discharge and personal
use enhancement on count 2 were also stricken.
Additional terms were also imposed but stayed on counts 3 through 5.
III. DISCUSSION
A. Insufficient
Evidence Supports Martinez’s Conviction in Count 1 (for the Attempted Murder of
Clemmons) and Gonzalez’s Convictions in Counts 2 and 4 (for the Attempted
Murder and Firearm Assault on Edwards) Based on Direct Perpetrator Theories
Significantly, no aiding and abetting instructions were given on
counts 1 through 4; they were only given on the robbery charge in count 5. Reflecting this omission in the instructions,
the prosecutor claimed Gonzalez aided and abetted Martinez’s direct
perpetration of the robbery of Edwards in count 5, but she did not argue that
either defendant aided and abetted the other in counts 1 through 4. Instead, she claimed each defendant directly
perpetrated each attempted murder and each firearm assault on each victim
charged in counts 1 through 4.
At our request, the parties submitted
sufficient evidence supports Martinez’s conviction in count 1 (for the
attempted murder of Clemmons) and Gonzalez’s convictions in counts 2 and 4 (for
the attempted murder and firearm assault on Edwards) based on direct
perpetrator theories. We conclude the
evidence is insufficient to support these convictions based on direct
perpetrator theories. This is because
there is no evidence that Martinez shot at Clemmons or that Gonzalez shot at
Edwards or pointed a gun at Edwards.
1. Standard of Review/Sufficiency of Evidence
In
considering whether sufficient evidence supports a criminal conviction, we
review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty of the crime beyond a reasonable doubt.†(People
v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment every
fact the trier of fact could reasonably deduce from the evidence. (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Reversal is warranted only when “‘upon no
hypothesis whatever’†is there sufficient evidence to support the
conviction. (People v. Bolin (1998) 18 Ca1.4th 297, 331.)
2. Analysis
Because no aiding and
abetting instructions were given in counts 1 through 4, the jury had to find
that each defendant directly perpetrated each attempted murder and each assault
with a firearm against each victim, in order to find defendants guilty as
charged in counts 1 through 4. And here,
the jury could reasonably conclude that each defendant directly perpetrated
each attempted murder only if it concluded each defendant shot at each victim,
and that each defendant directly perpetrated each firearm assault only if it
concluded each defendant pointed a gun at each victim.
Viewed as a whole and
in the light most favorable to the jury’s verdicts, however, the evidence does not support a reasonable
inference that Martinez shot at Clemmons (count 1), that Gonzalez shot at
Edwards (counts 2 & 4), or that Gonzalez pointed a gun at Edwards (count
4). Instead, the evidence shows that Martinez pointed a gun at both
victims inside the car before the shootings began and said, “‘All right,
motherfuckers.’†Clemmons then got out
of the car and ran. Gonzalez got out of
the car and fired several shots at Clemmons and chased Clemmons, who continued
to run after he was hit by a shot Gonzalez fired. After Gonzalez stopped shooting at Clemmons,
Edwards got out of the car, followed by Martinez. Martinez then fired several shots at Edwards,
hitting him and causing him to fall only 15 to 30 feet from the car. There is no
evidence Martinez shot at Clemmons or that Gonzalez shot at Edwards or pointed
a gun at Edwards.
The People point out
Edwards ran in the same direction Clemmons ran, and on this basis argue that
when Martinez shot at Edwards he was also shooting at Clemmons. This argument is based on a false,
over-generalized, view of the evidence and ignores critical details in the
evidence. The evidence shows Clemmons
had already run away by the time Martinez got out of the car and began shooting
at Edwards. Edwards testified there were
“only two people out there at that point†namely, himself and Martinez. The area was unlit and it was completely dark
outside. There was therefore no basis to
infer Martinez could see Clemmons in the distance when Martinez shot at Edwards,
or that Martinez intended to shoot at Edwards.
(CALCRIM No. 600.) In addition,
Edwards was only 15 to 30 feet away from Martinez when he fell to the ground
with a gunshot wound, and at that point Martinez stopped shooting. This further indicates that Martinez only
intended to shoot at Edwards, not at Clemmons.
The People misstate
the evidence even further in arguing that “Gonzalez and Martinez both stood
outside the car and fired six to ten shots at Edwards and Clemmons, who both
travelled the same path as they ran from the shooters.†There is no evidence Gonzalez and Martinez
stood outside the car together, at or
near the same time, and shot at both victims as the victims ran down the same
path. To the contrary, Gonzalez shot at
Clemmons and chased after Clemmons before
Edwards or Martinez got out of the car, and Martinez shot at Edwards
longer near the car and were apparently out of sight. In addition, both Edwards and Clemmons heard
two separate rounds of shots fired, and their testimony consistently showed
Gonzalez fired the first round of shots at Clemmons before Martinez fired the
second round of shots at Edwards.
The People’s
arguments also disregard the evidence that Martinez and Gonzalez walked up to
Edwards from opposite directions as
he lay on the ground with a gunshot wound.
Martinez walked from the direction of the car, while Gonzalez walked
from the direction Clemmons ran—and in which Edwards was heading when he was
shot. This evidence—in combination with
each victim’s testimony that Gonzalez fired the initial round of shots and
Martinez fired the second, and that Gonzalez chased Clemmons immediately after
Gonzalez shot at Clemmons—showed Gonzalez could not have shot at and did not
shoot at Edwards. Nor is there any
evidence that Gonzalez pointed his gun at Edwards as Edwards lay on the ground,
or at any other time.
The prosecutor
advanced a similar overly-general view of the evidence in her closing remarks
to the jury, telling them: “They
[defendants] fired six to ten shots at [Edwards] and [Clemmons]â€; “After [Edwards]
and [Clemmons] jumped out of the car and started running, . . .
Martinez was shooting at both of themâ€; “[Martinez] fired a gun at [Clemmons]â€;
and “[Martinez] shot at [Clemmons] repeatedly, not one time, not two times, not
three times—over and over—shot at [Clemmons] while he was running away
. . . .â€
As Martinez points out, the prosecutor’s argument “paid scant
attention to the details of the evidence.â€
The argument likely explains why the
jury found each defendant guilty as direct perpetrators in counts 1 through
4—that and defense counsels’ failure to point out the liberties the prosecutor
was taking with the evidence.
Also
contrary to the People’s claim, Clemmons did not testify that he heard a third
round of shots fired after he heard Edwards yell “‘Ah.’†To the contrary, Clemmons testified he heard
an initial round of shots, felt pain from a gunshot wound, and continued to
run. Then he heard two or three more
shots and heard Edwards yell “‘Ah,’†as if Edwards was in pain. He did
not testify he heard a third round of shots after Edwards yelled “‘Ah.’â€
Lastly,
the People point out that shortly after the shootings, Edwards told Fontana
Police Officer Daniel Delgado “that he saw both Gonzalez and Martinez shooting
at Edwards and Clemmons,†and Edwards testified at trial, “That’s a correct
statement as to what happened.†The
People argue this testimony amounts to substantial evidence that each defendant
shot at each victim, but the People are mistaken. First, the statement is ambiguous and can reasonably
be understood to mean that each defendant shot at only one victim. Moreover, and as discussed, the evidence
gun at both victims and shot at Edwards, and that Gonzalez shot at Clemmons,
but it does not support a reasonable inference that Martinez shot at Clemmons
or that Gonzalez shot at Edwards or pointed a gun at Edwards.
B.
Unanimity
Instructions Were Required on Counts 1 Through 4
Martinez
further claims his attempted murder and firearm
assault convictions in counts 1 through 4 must be reversed because the
court erroneously failed to instruct the jury on unanimity sua sponte. (CALCRIM No. 3500.)
argues one or more jurors could have found him guilty of each crime based on
his initial act of pointing his gun at the victims inside the car, while others
could have based their verdicts on his act of shooting at the victims outside
the car. Gonzalez joins this claim without
additional argument.
The claim
does not benefit Gonzalez because he stands convicted only in counts 1, 3, and
5, and there is no evidence he pointed a gun at Clemmons (count 3) other than
when he shot at Clemmons (count 1). Thus
there are not two separate acts upon which the jury could have found Gonzalez
guilty in counts 1 and 3. Although we
reverse Martinez’s conviction in count 1 because there is insufficient evidence
he shot at Clemmons (count 1), we consider the unanimity claim as it relates to
Martinez’s convictions in counts 1 and 3 (Clemmons) and counts 2 and 4
(Edwards), given that the jury found him guilty on each of these counts and the
prosecutor argued he both pointed his gun and later shot at both victims.
1. The Unanimity Requirement
“In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally,
the jury must agree unanimously the defendant is guilty of a
Therefore, cases have long held that when the evidence suggests more
than one discrete crime, either the prosecution must elect among the crimes
on the same criminal act.
[Citations.]†(
1132, second italics added.)
“On the other hand, where the evidence shows only a single discrete
crime but leaves room for disagreement as to exactly how that crime was
committed or what the defendant’s precise role was, the jury need not
unanimously agree on the basis or, as the cases often put it, the ‘theory’
whereby the defendant is guilty.†(
1132.) Thus, a unanimity instruction is
required to be given by the court sua sponte, “when the circumstances [of the
case] so warrant.†(People v. Davis (2005) 36 Cal.4th 510, 561.)
Courts have long recognized a “continuous-course-of-conduct
exception†to the unanimity instruction requirement. (See, e.g., People v. Jennings (2010) 50 Cal.4th 616, 679.) The exception applies, for example, “when (1)
‘the acts are so closely connected in time as to form part of one transaction,’
(2) ‘the defendant tenders the same defense or defenses to each act,’ and (3)
‘there is no reasonable basis for the jury to distinguish between them. [Citations.]’†(People
v. Lueth (2012) 206 Cal.App.4th 189, 196 [Fourth Dist., Div. Two], quoting
875.)
This particular branch of the continuous-course-of-conduct
exception—we will call it the single transaction branch—“‘“is meant to apply
not to all crimes occurring during a single transaction but only to those
‘where the acts testified to are so closely related in time and place that the
jurors reasonably must either accept or reject the victim’s testimony in
toto.’ [Citation.]†[Citation.]’
[Citation.]†(People v. Bui
(2011) 192 Cal.App.4th 1002, 1011.)
After all, the unanimity requirement “‘is intended to eliminate the
danger that the defendant will be convicted even though there is no single
offense which all the jurors agree the defendant committed.’ [Citation.]â€
(People v. Russo, supra, 25
Cal.4th at p. 1132.)
Last year, in People v.
Lueth, supra, 206 Cal.App.4th at page 196, this court questioned whether
the single transaction branch of the continuous conduct exception is truly an
exception to the unanimity requirement, or whether it would be “more accurate
to say that, in this situation, a unanimity instruction is required but the
failure to give one is harmless.†In
v. Arevalo-Iraheta (2011)
Div. Two], this court observed: “[T]he
omission of a unanimity instruction [is] harmless if the record reveals ‘no
rational basis . . . by which the jury could have distinguished
between [the acts which would constitute the offenses].’â€
We independently review a claim that the trial court erroneously
failed to give a unanimity instruction when one was required. (People
v. Lueth, supra, 206 Cal.App.4th at p. 195.) “The omission of a unanimity instruction is
reversible error if, without it, some jurors may have believed the defendant
guilty based on one act, while others may have believed him guilty based on
another.†(People v. Arevalo-Iraheta, supra, 193 Cal.App.4th at p. 1589;
pp. 1132, 1135.)
2. Analysis
We
conclude no unanimity instructions were required to be given on counts 1
through 4 because no reasonable juror could have found Martinez guilty in
counts 1 through 4 based solely on
his act of pointing his gun at the victims in the car. Though the evidence is insufficient to support a reasonable
inference that Martinez shot at Clemmons, no juror could have rationally
believed Martinez shot at either victim
outside the car but did not also point his gun at both victims inside the
car. Martinez’s initial act of pointing
his gun at both victims inside the car and his later act of shooting (at
Edwards) outside the car were part of a continuous course of conduct.
To be sure, the prosecutor argued that Martinez’s initial act of
pointing his gun at the victims inside the car, standing alone, satisfied the
direct act element of the attempted murder charges and all four elements of the assault charges. But she did not differentiate the gun
pointing from the shooting, which happened minutes later. She did not argue that pointing the gun was
an alternative or independent basis for the charges. Instead she emphasized that the act of
constituted a direct act toward the commission of the killings,
firearm.
In addition, neither defense
counsel attempted to draw any distinction between Martinez’s initial act of
pointing the gun at both victims from the subsequent shootings. Gonzalez instead argued he had been mistaken
for his brother and misidentified and was not present at the time of the
crimes. And Martinez argued the
testimony of each victim was wholly unreliable.
In these circumstances it is difficult to see how the jurors could have
split their verdicts in counts 1 and 3 or in counts 2 and 4 based on Martinez’s
initial act of pointing the gun at both victims inside the car the and the
subsequent shootings.
This case
presents the type of scenario in which the “single transaction†branch of the
continuous-course-of-conduct exception applies.
Not only were Martinez’s acts of pointing and then shooting his gun “‘“‘so closely related in time
and place that the jurors reasonably must [have] either accept[ed] or
reject[ed] the victim[s’] testimony in toto,’â€â€™â€ the jurors could not have
drawn any rational distinction
between them in finding Martinez guilty of the firearm assaults and attempted
murders. (People v. Bui, supra, 192 Cal.App.4th at pp. 1010-1011.) Thus there is no risk the jurors could have
divided “as to the exact way†that Martinez committed each crime. (People
v. Russo, supra, 25 Cal.4th at p. 1135.)
Instead, the jurors must have unanimously concluded that Martinez
committed both acts if he committed either.
(See People v. Riel (2000) 22
Cal.4th 1153, 1199 [jurors must have found the defendant committed two
robberies].)
By the
same token, any error in failing to instruct on unanimity was necessarily
harmless because “the record reveals ‘no rational basis, by way of argument or
evidence, by which the jury could have distinguished between [the acts which
would constitute the offenses].’†(
Cal.App.4th at p. 1589.)
C.
Discharge Allegations in Counts 1 and 2
Martinez claims his 20-year
personal discharge enhancement on the attempted murder of Clemmons in count 1
(§ 12022.53, subd. (c)) must be stricken because it was not alleged in the
information, and this violated section 12022.53, subdivision (j) and his due
process rights to fair notice of the enhancement. For the same reasons, Gonzalez claims his
20-year personal discharge enhancement on the attempted murder of Edwards in
count 2 must be stricken.
(§ 12022.53, subd. (c).)
Martinez’s conviction in count 1 and Gonzalez’s conviction in count 2, and
remand for resentencing.
D.
Days of Presentence Custody Credits
Gonzalez
claims the judgment should be modified to award him a total of 1,048 days of
presentence custody credits instead of the 1,045 awarded at sentencing, because
the court incorrectly calculated the time he was incarcerated in county
jail. We agree.
Gonzalez
was incarcerated in county jail from his arrest on March 26, 2009, to and
including the date of sentencing on September 23, 2011. He was awarded 909 actual days of credit and
136 days of conduct credit (calculated at 15 percent pursuant to § 2933.1
because Gonzalez received a life term).
He claims he should have been awarded 912 days of actual credit rather
than 909 days based on the number of days he was incarcerated. He is correct. The period between March 29, 2009 and
September 23, 2011, is 912 days, not 909 days.
The
People do not dispute that Gonzalez should have received the additional three days’
credit, but argue the proper remedy is to allow the trial court to calculate
the credits because the duty to calculate credits lies with the sentencing
court. (People v. Buckhalter (2001) 26 Cal.4th 20, 23, 29, 41.) The trial court’s duty to calculate credits
does not subsume this court’s authority to modify the judgment, however. (§ 1260.) Rather than subject the trial court and the
parties to an unnecessary expense, we exercise our authority to amend the
judgment to add the missing three days of actual custody credit. (People
v. Alford (2010) 180 Cal.App.4th 1463, 1473; § 1260.)
E. Supplemental Sentencing Order and Amended
Abstract of Judgment
Gonzalez correctly points out
that the sentencing minute order of January 7, 2010, and his abstract of
judgment are in error because they reflect that his personal use enhancements
in counts 3 and 4 were found true and imposed pursuant to section 12022.53,
subdivision (b). The statutory basis for
these personal use enhancements is actually section 12022.5, subdivision
(a). Assault with a firearm (§ 245,
subd. (a)(2)) is not a felony listed in section 12022.53, subdivision (a), and
section 12022.5, subdivision (a) authorizes personal use enhancements on other
felonies. At resentencing, the court is
directed to correct these error in its records and in the abstract of
judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
IV. DISPOSITION
Martinez’s conviction in count
1 and Gonzalez’s convictions in counts 2 and 4 are reversed based on
insufficient evidence, and the matter is remanded for resentencing. The court’s sentencing minute order and the
abstract of judgment should reflect that (1) Gonzalez’s personal use
enhancements in counts 3 and 4 were found true pursuant to section 12022.5,
subdivision (a), not section 12022.53, subdivision (b), and (2) Gonzalez is
entitled to 912 days’ presentence custody credits, not 909 days, or a total of
1,048 days custody credits, not 1,045 days.
In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
McKINSTER
Acting P. J.
RICHLI
J.
name="_ftn1" title="">
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Edwards did not tell Martinez how much money
he would be bringing with him.
