P. v. Jaime

Filed 3/28/07 P. v. Jaime CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Judge.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a jury trial, Daniel Alfaro Jaime (appellant) was convicted in count 1 of throwing an item capable of causing great bodily injury at a vehicle or occupant, with the intent to cause great bodily injury, a felony violation of Vehicle Code section 23110, subdivision (b), and in count 2 of vandalism, a violation of Penal Code section 594, subdivision (a). A Penal Code section 186.22, subdivision (b) gang allegation was alleged as to both counts and found true as to count 1. A Penal Code section 186.22, subdivision (d) allegation was attached to and found true as to count 2.

The trial court sentenced appellant to the middle term of two years in prison on count 1, plus three years for the gang allegation. It also ordered and stayed a two-year term in count 2 and a three-year gang enhancement.

Appellant contends that the trial court failed to instruct on the lesser included offense of throwing a substance at a vehicle or person in a vehicle; that the trial court erred when it added a three-year gang enhancement to the vandalism charge; and that the trial court misunderstood its discretion to designate the vandalism count as a felony or misdemeanor. We agree with appellants first and second contentions. We reverse his conviction in count 1, order stricken the three-year gang enhancement in count 2, and remand for further proceedings on both counts.

FACTS

On May 31, 2005, Daniel Bernardino was driving his fathers red car with a red 49ers ball on the antenna. He stopped at a stop sign in Avenal, looked both ways in preparation for making a left turn, and noticed a white Toyota Camry occupied by appellant and driven by Miguel Paez. The vehicle stopped and then proceeded through the intersection. As the vehicle crossed Bernardinos path, Bernardino saw appellant throw a shiny metal object about the size of a spark plug or socket tool at his windshield. Bernardino ducked as the object hit and cracked the windshield in front of his face.

Although concerned that he would be labeled a rat, Bernardino reported the incident and told Deputy Warren Parker that it was gang motivated. Deputy Parker confirmed in his testimony that Bernardino described the object thrown at his windshield as about the size of the palm of his hand. It would fit in the palm of his hand []  []  about three inches. The object itself never was found.

A reluctant witness, Bernardino nonetheless testified that he knew appellant; they had attended the same high school and had, on at least one occasion, called each other buster and scrapnames considered derogatory by Norteno and Sureno gangs. Bernardino was associated with the Norteno street gang. Appellant was a Sureno.

Sheriffs Deputy Jeremy McGill testified as a gang expert. According to Deputy McGill, the Nortenos and Surenos are rival gangs. McGill testified to a number of predicate gang-related offenses committed by Sureno gang members. The deputy explained that gang members seek to instill fear, intimidate others, and garner respect for themselves by committing criminal acts. Deputy McGill identified both appellant and Miguel Paez as Sureno gang members and opined, based on the circumstances of the instant offenses, that the acts were committed for the benefit of the Sureno gang.

DISCUSSION

1. Did the trial court err in failing to instruct on a lesser included offense of throwing an object at a vehicle?

Appellant contends the trial court erred prejudicially when it failed to instruct the jury, sua sponte, on the misdemeanor offense of throwing a substance at a vehicle or its occupant (Veh. Code,  23110, subd. (a)) because that offense is a lesser offense included in the felony charged in count 1to wit, throwing a substance capable of doing serious bodily harm at a vehicle or occupant with the intent to do great bodily injury. (Id., subd. (b).) Appellant submits that the failure to instruct on the lesser included offense was prejudicial because, based on the evidence, it is reasonably probable that a properly instructed jury would have found that appellant threw the object without the intent to cause great bodily injury and, hence, would have found him guilty of the lesser rather than the greater offense. We agree and will reverse the conviction on count 1.

Under California law, [where the issue is whether instruction on a lesser included offense was required,] a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117; see also People v. Reed (2006) 38 Cal.4th 1224; People v. Lopez (1998) 19 Cal.4th 282.)

Vehicle Code section 23110, subdivision (a) provides: Any person who throws any substance^[[1]] at a vehicle or any occupant thereof on a highway is guilty of a misdemeanor. Section 23110, subdivision (b) provides: Any person who with intent to do great bodily injury maliciously and willfully throws or projects any rock, brick, bottle, metal or other missile, or projects any other substance capable of doing serious bodily harm at such vehicle or occupant thereof is guilty of a felony . (Italics added.) The accusatory pleading in this case charged that appellant violated section 23110, subdivision (b) in that he did unlawfully, maliciously, and with intent to do great bodily injury, throw and project a rock, brick, bottle, metal, missile, and substance capable of doing serious bodily harm at a vehicle and occupant thereof on a highway. Appellant contends, and respondent agrees, that the statutory elements of section 23110, subdivision (a) are included within the greater offense of section 23110, subdivision (b). (E.g., People v. Whitney (1978) 76 Cal.App.3d 863, 867-868 [Veh. Code,  23110, subd. (b) merely adds the additional elements of intent and capacity to do serious bodily injury].) Though we believe it is the accusatory pleading and not the elements test that is satisfied, we accept respondents stipulation that violation of section 23110, subdivision (a) was a lesser included offense in this case.

The trial court in a criminal case must, even in the absence of a request, instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. St. Martin (1970) 1 Cal.3d 524, 531.) That obligation has been held to include giving instructions on all lesser necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149 (Breverman); see also People v. Flannel (1979) 25 Cal.3d 668, 684 & fn. 12; People v. Bunyard (1988) 45 Cal.3d 1189, 1232-1234.) In making the determination whether to instruct on a lesser included offense, the trial court should not attempt to weigh the evidence or judge the credibility of the witnesses. (People v. Flannel, supra, at p. 684.) As a corollary, however, where there is no substantial evidence that would support a conviction of the lesser but not the greater offense, the court need not instruct on the lesser included offense. (Ibid.; People v. Kaurish (1990) 52 Cal.3d 648, 696.)

Here, the evidence was that appellant threw a metal object similar in size to a spark plug at Bernardinos windshield. The object hit the windshield in front of Bernardinos face and cracked the windshield badly. Bernardino testified that he ducked because he believed the object would hit his face. Photographs of Bernardinos windshield, showing the damage, were admitted in evidence and corroborated Bernardinos account. Thus, without doubt, the evidence supported a finding that appellant violated subdivision (a) of Vehicle Code section 23110.

There also was evidence from which the jury could have concluded that appellant threw the object at Bernardinos windshield willfully and maliciously with the intent to inflict great bodily injury. The evidence revealed that Bernardino and appellant were involved with rival gangs and had called each other gang-related derogatory names. Deputy Parker testified that Bernardino had told him the incident was gang related. Deputy McGill, the gang expert, testified that gang members seek to instill fear, intimidate others, and garner respect for themselves by committing criminal acts.

In People v. Whitney, evidence that the defendant saw a bus driver near a motel room with the defendants former girlfriend and that the defendant subsequently shot a projectileprobably from a slingshotthat hit the bus window two inches from the bus drivers head was sufficient to support the inference that the defendant intended to do great bodily harm. (People v. Whitney, supra, 76 Cal.App.3d at pp. 870-871.)

That the evidence was sufficient to support a finding of the necessary intent, however, is not sufficient to answer the question whether instruction on a lesser included offense was required. We agree with appellant that failure to give such instruction was error. This is because the jury could have found, based on the evidence, that proof of the intent to do great bodily injury was missing. (Cf. People v. Saldana (1984) 157 Cal.App.3d 443, 455-457 [instruction on lesser included offense required where inferences from circumstantial evidence did not point exclusively to guilt of greater offense]; People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547 [prosecutions evidence in support of greater offense was subject to interpretation].)

There was, to be sure, extensive evidence relating to Norteno and Sureno gangs and their rivalries. Part of this evidence even included the information that this incident was the first of three involving vehicles. About three hours after the incident charged here occurred,

[t]here was another incident between Nortenos and Surenos which involved vehicles . [A] Norteno member was chasing a vehicle [that appellant] was in, [appellant] threw some marbles out of that vehicle hitting the Norteno members vehicle, the windshield, right before the Norteno vehicle slammed into their vehicle.

About a week later, there was another incident where there was a vehicle ramming between Nortenos and Surenos.^[2]

But the evidence of the existence of this gang rivalry does not convince us that appellants act of throwing a spark plug-like object at either Bernardinos vehicle, the vehicles windshield, or even at Bernardino himself, necessarily was done with the intent to inflict great bodily injury. It could as well support the conclusion that the act was done with the intent to damage the car, to frighten Bernardino, to intimidate him, even to embarrass him by making him duck. We find it significant, in this regard, that the vehicle Bernardino drove was a red car with a red 49ers ball on the antenna. According to the evidence, such a car would itself have been an insult to a Surenos senses.

Trial counsel for Miguel Paez argued to the jury that the evidence was not sufficient to show intent to inflict great bodily injury. Trial counsel for appellant did not address the subject of intent. Neither appellant nor Paez requested instruction on the lesser offense. The obligation to instruct on lesser included offenses when called for by the evidence, however, exists even when a defendant

not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.] (Breverman, supra, 19 Cal.4th at pp. 154-155.)

The duty to instruct does not stop with those theories obviously relied upon by the defense or which appear strongest from the evidence:

On the contrary, as we have expressly indicated, the rule seeks the most accurate possible judgment by ensur[ing] that the jury will consider the full range of possible verdicts included in the charge, regardless of the parties wishes or tactics. (Wickersham, supra, 32 Cal.3d 307, 324, italics added.) The inference is that every lesser included offense, or theory thereof, which is supported by the evidence must be presented to the jury. (Breverman, supra, 19 Cal.4th at p. 155.)

We conclude the trial court erred.

There remains the question of prejudice, one to be judged by the Watson^[3]reasonable probability test. (Breverman, supra, 19 Cal.4th at pp. 177-178; People v. Joiner (2000) 84 Cal.App.4th 946, 972.) For the same reasons discussed above, in reference to the question whether it was error not to instruct on the lesser included offense, we conclude the error was prejudicial. Examining the evidence as a whole and, as is appropriate to do in reference to the question of prejudice, examining its strengths and weaknesses (Breverman, supra, at p. 177), we cannot conclude with confidence that there is no reasonable probability the failure to give a lesser included offense instruction affected the outcome of the trial.

The proper remedy in a case such as this is to reverse the conviction on the greater offense, give the People an opportunity to retry the defendant on that charge, and order that the conviction be modified to the lesser offense in the event that the People elect not to retry the defendant. (People v. Edwards (1985) 39 Cal.3d 107, 118; People v. Springfield (1993) 13 Cal.App.4th 1674, 1681.) We make such orders below.

2. Must the stayed three-year enhancement of sentence on count 2 be stricken?

Appellant contends, and respondent concedes, that the trial court erroneously ordered (and then stayed) a three-year sentence for a gang allegation pursuant to Penal Code section 186.22, subdivision (b)(1) on count 2. We agree.

The information originally charged appellant with felony vandalism in count 2, with damage alleged to be over $400. The count also alleged a gang allegation under Penal Code section 186.22, subdivision (d).

Prior to trial, the prosecutor moved to amend count 2 to strike the reference to a dollar amount of damage and to add a Penal Code section 186.22, subdivision (b)(1) allegation. The trial court granted the motion and the information was amended by interlineation. After the jury was sworn, the court read the amended information to the sworn jury panel.

While the prosecutor, during closing argument, asked that the jury find Penal Code section 186.22, subdivisions (b) and (d) true as charged, the verdict form for count 2 did not reflect the section 186.22, subdivision (b)(1) allegation, only the section 186.22, subdivision (d) allegation. This is also reflected in the minute order and the oral reading of the verdicts. Thus, the record reflects no jury finding on the subdivision (b)(1) allegation attached to count 2.

At sentencing, the trial court added (but stayed) a three-year gang-enhancement term to a midterm sentence (also stayed) on count 2. The court failed to state what subdivision of Penal Code section 186.22 carried the three-year additional term. The abstract of judgment as to count 2 reflects only a stayed section 186.22, subdivision (d) allegation in the enhancements portion of the form.

We agree with appellant and respondent that the trial court erred if it imposed and stayed the three-year enhancement pursuant to Penal Code section 186.22, subdivision (d). Subdivision (d) carries no enhancement term. It is, instead, an alternate penalty provision that establishes a sentencing scheme applicable when the facts demonstrate the underlying offense was committed for the benefit of, or in association with, a criminal street gang. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899.) It allows a misdemeanor to be alleged as a felony, and it allows a sentencing court to treat the offense as a wobbler.^[4](Robert L., at p. 899.) It allows the court to sentence the defendant either to up to one year in county jail (as a misdemeanor) or to state prison for one, two, or three years (as a felony).

Further, as both respondent and appellant note, even had the jury made a finding on the Penal Code section 186.22, subdivision (b)(1) enhancement that was charged against appellant, it still would have been error for the trial court to impose an enhancement term. As stated in People v. Arroyas (2002) 96 Cal.App.4th 1439, 1448, a misdemeanor, converted to a felony by [section 186.22,] subdivision (d) [is not also] subject to the felony enhancement provided in [section 186.22,] subdivision (b)(1). (See also Robert L. v. Superior Court, supra, 30 Cal.4th at p. 907, fn. 18.)

We therefore vacate the three-year enhancement term ordered in count 2, the vandalism offense, and remand for resentencing.

3. Did the trial court misunderstand its discretion in determining whether count 2 was a felony or misdemeanor?

The trial court sentenced appellant to the middle term of two years for the vandalism conviction in count 2, although it stayed the punishment pursuant to Penal Code section 654. Appellant contends that the trial court misunderstood its discretion under section 186.22, subdivision (d) to declare the count 2 offense a misdemeanor.

The crime of vandalism causing damage in an amount over $400 is a wobbler. (Pen. Code,  594, subd. (b)(1).) If the amount of vandalism alleged is less than $400, the crime is punishable for a term of not more than one year in a county jail and a fine of $1,000, and is therefore a misdemeanor. ( 594, subd. (b)(2), 17, subd. (a).)

The information here initially charged appellant with felony vandalism in the amount over $400. While, prior to trial, the prosecution amended the information by striking the amount of damage, the count remained charged as a felony, with a Penal Code section 186.22, subdivision (d) gang allegation attached.

Penal Code section 186.22, subdivision (d) is a sentencing scheme which makes a public offense punishable as a misdemeanor, with imprisonment in the county jail not to exceed one year, or as a felony, punishable by imprisonment in the state prison for one, two, or three years. In essence, that is, subdivision (d) makes an offense a wobbler.^[5](Robert L. v. Superior Court, supra, 30 Cal.4th at p. 897; People v. Arroyas, supra, 96 Cal.App.4th at p. 1444.)

Penal Code section 17, subdivision (b) expressly gives the trial court the power to reduce a wobbler filed as a felony to a misdemeanor. This can be on the motion of defense counsel or on the courts own motion. ( 17, subd. (b)(3); see Robert L. v. Superior Court, supra, 30 Cal.4th at p. 901, fn. 7.)

Appellant contends that several ambiguities in the record indicate that the trial court was unaware of its discretion to treat the conviction for vandalism in count 2 as a misdemeanor. Respondent disagrees, alleging that the trial court understood its discretion by sentencing appellant as it did; that, in the absence of a clear indication to the contrary, a trial courts order or judgment is presumed correct; and that, by failing to make a motion to reduce the offense to a misdemeanor at trial, appellant has forfeited his claim on appeal. In his reply brief, appellant asserts that, if defense counsel forfeited this claim by failing to make a motion below, counsel was incompetent.

This matter must be remanded to the trial court for further proceedings on count 1 and for correction of the sentence imposed on count 2to wit, deletion of the three-year enhancement as discussed, ante, in part 2 of this opinion. For that reason, and because defense counsel will have the opportunity to request misdemeanor sentencing on count 2, and the trial court will have the opportunity to exercise its discretion in that regard, we devote no further discussion to appellants claim.^[6]

DISPOSITION

Appellants conviction on count 1 is reversed with directions. If the People do not bring appellant to trial on count 1 within 60 days after the filing of the remittitur in the trial court, the court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of violating Vehicle Code section 23110, subdivision (a), a misdemeanor.

The three-year enhancement term on count 2 is vacated. The matter is remanded to the trial court for resentencing.

DAWSON, J.

WE CONCUR:

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HARRIS, Acting P.J.

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KANE, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1]In Findley v. Justice Court (1976) 62 Cal.App.3d 566, this court said: According to lexicographers, a substance is a distinguishable kind of physical matter. (Websters New Internat. Dict. (3d ed. 1961) p. 2279.) Simply stated, the statute proscribes the throwing of any physical matter at any automobile . (Id. at p. 571.)

^[2]Eventually there was a shooting, but it is not clear from the record whether a vehicle was involved.

^[3]People v. Watson (1956) 46 Cal.2d 818, 836.

^[4]A wobbler is a crime punishable in the trial courts discretion as either a felony or a misdemeanor. (See Pen. Code,  17, subd. (b); People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974.)

^[5]See footnote 4, ante.

^[6]We note in regard to proceedings for resentencing on count 2 that the sentence ordered on that count includes another error. Though it is not an error asserted by appellant here, it may nonetheless require correction on remand.

The trial court ordered the sentence on count 2 both to be stayed pursuant to Penal Code section 654 and to run concurrent to the sentence for count 1. This was error. Stays of sentence under section 654 and concurrent sentencing are mutually exclusive. (People v. Deloza (1998) 18 Cal.4th 585, 594; People v. Miller (1977) 18 Cal.3d 873, 886, overruled on another ground in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8.) The proper procedure is to select the appropriate term from the sentencing triad for the second count and then stay that sentence without designating it as either concurrent or consecutive. (People v. Deloza, supra, at p. 594; People v. Miller, supra, at p. 886.)

Thus, if appellant is retried on count 1 and is convicted of violating subdivision (b) of Vehicle Code section 23110, the felony, the trial court will be required to either stay the term on count 2 or select concurrent or consecutive sentencing.