Filed 11/27/18 P. v. Mendez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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, Michael J. Cassidy, Judge. Affirmed in part, reversed in part, and remanded for resentencing.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall Einhorn and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Jovanny J. Mendez of attempted premeditated murder (count 1, Pen. Code, §§ 187, subd. (a), 664, subd. (a); all further statutory references are to this code), assault with a firearm (count 2, § 245, subd. (a)(2)), shooting at an occupied building (count 3, § 246), and possession of a firearm by a felon (count 4, § 12021, subd. (a)(1)). The jury also found true as to count 1 a penalty enhancement allegation that Mendez personally discharged a firearm in committing the offense (§ 12022.53, subd. (c)) and, as to count 2, an enhancement for personal use of a firearm (§ 12022.5, subds. (a), (d)). Before trial, the court dismissed pursuant to section 995 all gang-related enhancement allegations. At sentencing, after the court struck the prior strike conviction and prior prison term allegations that Mendez admitted in bifurcated proceedings, the court imposed a life sentence with the possibility of parole, plus a consecutive 20-year determinate term. The sentence consisted of a life term on count 1, with a then-mandatory 20-year firearm enhancement, and concurrent middle terms of five years and two years, respectively, on counts 3 and 4. The court under section 654 stayed sentence on count 2 and its associated firearm enhancement.

Mendez contends the judgment must be reversed based on misconduct consisting of a comment the prosecutor made during closing argument. He also argues the trial court erred in not staying the concurrent term on count 3. As the Attorney General concedes, Mendez also correctly asserts the matter must be remanded for resentencing because the court, pursuant to new statutory authority, now has discretion to strike firearm enhancements if it so chooses. On remand the court should also issue a new abstract of judgment accurately identifying Mendez’s conviction in count 3 as shooting at an “occupied building,” rather than at an “inhabited dwelling.” As we explain, Mendez’s other arguments are without merit. The prosecutor’s error in briefly commenting on the “rarity” of an eyewitness’s identification does not warrant reversal; and the trial court did not err in declining to apply section 654 to count 3, where there were multiple individuals besides the intended target in a barber shop that Mendez sprayed with bullets.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2009, Michael Garcia helped Brian S., a housemate and family friend, retrieve his cell phone after four men—bald and wearing baggy pants like “gangsters”—stole it from S. in an alley near a beauty salon in Santa Ana. The men had surrounded and pushed S. around, while declaring their gang allegiance before taking his music player, headphones, and phone. When S. returned home and found his father and Garcia standing outside the apartment, he told them about the incident and Garcia responded, “‘Fuck that. Let’s go get your phone back.’”

Garcia and S. found two of the men still in the alley, including one holding his phone. The man refused Garcia’s request to return the phone, pocketed it, and took a fighting stance, clenching his fists. As S. described it, Garcia “gave him a good right hook and knocked him out.” Garcia then retrieved the phone from the man’s pocket. His accomplice tried to attack Garcia from behind, but S. blocked him and the accomplice ran off. S. never saw any of the men again.

Later that same month, Milenka R. was working in her salon, located around the corner from the alley where S. had been robbed. One of R.’s employees was present, as well as eight to 10 clients, including three or four children. Garcia entered the salon to wait for a haircut. About 10 minutes later, R. heard gunshots shatter the glass front door of her business. She ran to the back of the salon, as did Garcia, where R. called 911.

During a break in the call, R. put Garcia on the line. He told the 911 operator that he previously had been in a fight with the shooter after the shooter took his stepson’s “iPad” or “some electronic.” After the call, Garcia repeated his account to R. and disclosed that while he had been waiting for his haircut, through the front window, he saw the eventual shooter approaching the salon. Garcia recognized him from the fight in the alley and stepped outside to prevent a confrontation inside the salon. But Garcia retreated back inside when he saw that the man had a gun.

Garcia explained to a responding police officer, Corporal Guillermo Betancourt, that he had once been in a fight with the shooter. Garcia described the shooter’s height, build, and clothing, and relayed that he knew where the man lived, “two apartment complexes west of Highland on Grove on the south side.” Betancourt knew the apartment building at that location and, based on an earlier contact he had there with a man who went by the moniker, “Santana,” Betancourt relayed on his radio to other officers that Santana could be a possible suspect. Betancourt later determined that Santana’s real name was Jovanny Mendez.

Meanwhile, Lieutenant Jeffrey Bird, who also responded to the salon, thumbed through a book of photographs of gang members, located Santana’s picture, and showed it to another officer. Unbeknownst to Bird, Garcia had approached and could see the page of color photographs of five different individuals and, though the photos were upside down from Garcia’s position, he pointed to Santana’s picture and said, “That’s him, that’s the guy.” As Garcia turned to walk away, he told Bird that he (Garcia) resided in the same neighborhood as the man in the picture and that they had been in an altercation a few weeks earlier.

Investigators recovered four automatic .25-caliber casings on the ground outside the salon. They also recovered five bullet fragments from inside and outside the salon. Four bullet holes peppered the area around the shattered window of the front door, two beneath and one above the metal door handle, and one to the left of the door.

After the shooting, Mendez absconded from parole, despite his parole officer’s efforts to locate him that evening and in the ensuing months. Mendez’s girlfriend similarly left home that evening, which her mother explained was unusual, and her mother did not see her again for several weeks. The prosecutor called the girlfriend as a witness at trial, but she refused to answer any questions despite having been granted immunity.

The parties stipulated at trial that Garcia had died in November 2014 of an illness unrelated to the 2009 shooting, and nothing indicated his death was related to the altercation following S.’s robbery.

DISCUSSION

A. Prosecutorial Misconduct

Mendez asserts the prosecutor committed misconduct requiring reversal by commenting on the fact that Garcia twice identified him to different officers at the salon as the shooter, stating, “Do you know how rare this is? I really hope you appreciate this,” and further stating, “I hope you can understand and appreciate that is incredibly rare.” Defense counsel objected, and the trial court sustained the objection, explaining, “It does assume facts not in evidence. There is no evidence that anything was rare.”

Referring to facts not in evidence is prohibited because it “‘tend[s] to make the prosecutor his own witness—offering unsworn testimony not subject to cross‑examination.’” (People v. Hill (1998) 17 Cal.4th 800, 828 (Hill)). We note there is no suggestion of intentional misconduct here, and therefore “prosecutorial error” rather than “misconduct” is a more apt description of the circumstances. (Id., at p. 823, fn. 1.)

In any event, Mendez argues that the prosecutor’s misstep improperly “bolster[ed] what the identification evidence was in this case” by “imply[ing] he had seen many cases before,” thereby effectively telling “the jury that this case was stronger than others” and that the “identification evidence . . . was so ‘incredibly rare’ that it had to be accepted.” In other words, the prosecutor utilized “his own personal knowledge” of asserted rarity to “vouch[] for the prosecution witnesses” as to identification, enhancing their credibility in a way “the defense could never challenge” because the prosecutor was not subject to cross-examination about the purported rarity.

On appeal, the Attorney General suggests the trial court should not have sustained the objection because, in context, the prosecutor’s rarity comment “did not refer to his own experience or expertise,” but instead “was a prelude to the prosecutor’s discussion of the evidence actually presented.” According to the Attorney General, the prosecutor simply addressed the “‘rare’” degree of detail in “the various ways Garcia had identified appellant, including by the location where appellant lived, his physical description, and his photograph.”

As we explain, the record does not support the Attorney General’s characterization. The assertion that an identification is “rare” in its thoroughness makes sense only in comparison to other identifications, which were necessarily outside the record because they were not admitted at trial. Nevertheless, the prosecutor’s rarity comment was fleeting and never repeated after the trial court’s ruling. In making its ruling and providing an explanation dismissing the comment, and in light of the standard jury instructions it gave, the court effectively directed the jury to ignore the prosecutor’s comment and to decide the case based on their own assessment of the evidence. There was no pervasive or prejudicial misconduct requiring reversal.

Specifically and in context, the prosecutor’s brief comment and the ensuing objection arose in the following manner during closing argument. In discussing the identification evidence, which consisted of Garcia identifying Mendez as the shooter to two different officers, the prosecutor stated: “So to prove ID in this case, you could take the testimony of Lieutenant Bird, and by itself, could prove ID in this case, by itself. But now we’ve got two ID’s, to two different officers in multiple fashions. Do you know how rare that is? I really hope you appreciate this. Do you know how rare it is when a victim ID’s someone, not just by their photograph, but by their nickname or moniker, by a physical description, and then, by their address, where they live, and can pinpoint the exact spot where they live?” At this point, defense counsel made a general objection, which the trial court, as noted, sustained based on “facts not in evidence,” further explaining, “There is no evidence that anything was rare.” The prosecutor then resumed with his closing argument regarding the strength of Garcia’s identification, as set out in the margin.[1]

Nothing the prosecutor said following the objection was incorrect or erroneous. In asserting the strength of Garcia’s identification based on the details Garcia knew about Mendez, the prosecutor fairly relied on the record and gave the jury good reasons to credit Garcia’s statements. “[A] prosecutor is free to give his opinion on the state of the evidence, and in arguing his case to the jury, has wide latitude to comment on . . . its quality.” (People v. Padilla (1995) 11 Cal.4th 891, 945, overruled on another ground in Hill, supra, 17 Cal.4th at p. 823, fn. 1.) As explained above, however, the prosecutor strayed outside the bounds of proper argument with his rarity comment.

Whether considered under the label of prosecutorial misconduct or error, the applicable federal and state standards are well established. “‘“‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’”’” (Hill, supra, 17 Cal.4th at p. 819.) Prosecutorial misconduct occurs under state law with “‘“‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’” (Ibid.)

“When a claim of misconduct is based on the prosecutor’s comments before the jury, “‘the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”’” (People v. Friend (2009) 47 Cal.4th 1, 29.) We do not mechanically infer the jury drew the most damaging meaning from the prosecutor’s statements. (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “[I]n the absence of prejudice to the fairness of a trial, prosecutor[ial] misconduct will not trigger reversal.” (People v. Bolton (1979) 23 Cal.3d 208, 214.)

We find no prejudice here, particularly where the Attorney General’s alternative forfeiture argument is apt. A request that the trial court admonish the jury to disregard misconduct is necessary to preserve the claim for review. (People v. Carter (2003) 30 Cal.4th 1166, 1207.) The request is necessary because it would only promote gamesmanship for counsel to secure a sustained objection, and then hold the lack of an admonition in reserve as appellate insurance against an adverse judgment. An admonition here would have cured the prosecutor’s error. His brief “rarity” comment was not part of a pattern of misconduct, nor so egregious or of such “electric effect” to conclude a curative admonition would have been futile. (People v. Brophy (1954) 122 Cal.App.2d 638, 652; compare, e.g., People v. Carrillo (2004) 119 Cal.App.4th 94, 103, fn. 3 [asking “only one question about . . . membership in Al Qaeda . . . would be hard to defend as ‘relatively brief’”].) “Because an admonition would have cured any harm, the point is not preserved for review.” (People v. Price (1991) 1 Cal.4th 324, 485.)

Moreover, even overlooking the forfeiture, the result is the same because the trial court essentially cured the error with its response to the objection and with its standard jury instructions. Mendez complains that the harm in the prosecutor’s “rarity” comment arises because it “is not subject to adversarial testing.” But the trial court’s curative statement that “[t]here is no evidence that anything was rare” accomplished as much as cross-examination; indeed, it may have been even more effective because the point deflating the prosecutor’s argument came from the bench, not opposing counsel.

Additionally, the trial court thoroughly instructed the jury on the applicable principles for evaluating Garcia’s identification evidence. The court directed the jury to focus on admissible evidence (CALCRIM Nos. 200, 222), cautioned the jury that the attorneys’ remarks were not evidence (CALCRIM No. 222), and instructed the jurors they alone decided both the facts (CALCRIM No. 200) and witness credibility, including eyewitness identification (CALCRIM Nos. 226, 315).

In particular, we note the court told the jury, “If I sustained an objection, you must ignore the question.” (CALCRIM No. 222.) While the objection here arose during closing argument, and not in the question-and-answer format of testimony, the jurors would understand the effect was the same: to disregard the prosecutor’s comment. We presume the jurors “are intelligent persons capable of understanding and correlating jury instructions” (People v. Martin (1983) 150 Cal.App.3d 148, 158), including the court’s direction to read and apply the instructions as a whole (CALCRIM No. 200). In sum, the jury had a full and fair opportunity to consider the prosecutor’s emphasis on the quality of Garcia’s identification and defense counsel’s counterpoint that Garcia’s passing familiarity with Mendez may have caused him to assume a similar-looking shooter was Mendez when it was not. Consequently, there is no merit in Mendez’s bid for reversal based on prosecutorial error.

B. Section 654

Mendez contends section 654 required the trial court to stay imposition of punishment on Count 3 for shooting at an occupied building because it was incidental to, and part of the same course of conduct as, the shooting that resulted in his attempted murder and assault convictions in Counts 1 and 2. Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad discretion in making its determination. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The court rejected Mendez’s stay request and imposed a five-year concurrent sentence. The court did not err.

Although it results in no practical difference as to a defendant’s prison term, the trial court must enter a stay rather than impose a concurrent sentence if section 654 prohibits multiple punishment. (People v. Jones (2012) 54 Cal.4th 350, 353.) Section 654 generally precludes punishment for multiple crimes arising from a single course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The purpose of the provision is to ensure a defendant’s punishment is commensurate with his or her culpability. (Id. at p. 1211.) Whether a course of conduct is divisible and therefore subject to multiple punishment depends on the intent and objective of the actor. (People v. McFarland (1962) 58 Cal.2d 748, 762.) But we need not delve into divisibility or Mendez’s intent and objective because section 654 does not apply to crimes of violence against multiple victims. (People v. Oates (2004) 32 Cal.4th 1048, 1063; People v. King (1993) 5 Cal.4th 59, 78). “‘“[W]hen a defendant ‘“commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons,” his greater culpability precludes application of section 654.’”’” (People v. Centers (1999) 73 Cal.App.4th 84, 99, italics added.)

Shooting into an occupied building is a violent crime likely to cause serious injury. (People v. Anderson (1990) 221 Cal.App.3d 331, 338 (Anderson).) The offense is fundamentally directed at all victims exposed to harm inside the building (People v. Felix (2009) 172 Cal.App.4th 1618, 1630 (Felix)), even if the shooter targeted an individual (ibid.), or only intended to cause fright instead of injury or death (People v. Martin (2005) 133 Cal.App.4th 776, 782-783 (Martin)). The defendant need not be aware of the identity or number of people inside to be punished separately for shooting into the building. (Felix, at p. 1631.) Thus, it is well-established that section 654 does not apply to shooting at an occupied building or inhabited dwelling when the offense involves one or more additional victims beyond the attempted murder or assault victim. (Anderson, at p. 339; e.g., Felix, at p. 1630; Martin at p. 782; People v. Cruz (1995) 38 Cal.App.4th 427, 434; People v. Garcia (1995) 32 Cal.App.4th 1756, 1784-1785.) That is the case here, where Mendez put the other occupants of the salon at risk of grave harm when he fired multiple shots into the building at Garcia. The trial court did not err in declining to enter a stay on Count 3.

C. Conceded Issues

The Attorney General concedes remand and resentencing is required to allow the trial court the opportunity to consider whether to impose or strike the 20-year personal discharge of a firearm enhancement attached to count 1. (§ 12022.53, subd. (c).) At the time of Mendez’s sentencing in May 2017, firearm enhancements under section 12022.53 were mandatory and could not be stricken in the interests of justice. (See former § 12022.53, subd. (h); People v. Felix (2003) 108 Cal.App.4th 994, 999.) On October 11, 2017, the Governor signed Senate Bill No. 620 (2017-2018 Reg. Sess.), which amended section 12022.53, effective January 1, 2018. Under the amendment, a trial court now has discretion to strike or dismiss a firearm enhancement. (§ 12022.53, subd. (h) [“The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section”].)

The change applies retroactively to Mendez and other defendants whose sentences were not final before the amendment took effect. (E.g., People v. Arredondo (2018) 21 Cal.App.5th 493, 507; People v. Woods (2018) 19 Cal.App.5th 1080, 1090‑1091; see People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 745.) In such instances, the Legislature effectively “has determined that the former penalty provisions may have been too severe in some cases and that the sentencing judge should be given wider latitude in tailoring the sentence to fit the particular circumstances.” (People v. Francis (1969) 71 Cal.2d 66, 76, accord, People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308, fn. 5.)

On remand, the trial court should also ensure, as the Attorney General concedes, that the new abstract of judgment correctly describes that Mendez’s conviction under section 246 is for discharging a firearm at an “occupied building.” Section 246 identifies an inhabited dwelling as a prohibited target, among others including an “occupied building,” but Mendez was charged only with the latter. Similarly, the evidence showed Mendez shot at an occupied building, not an inhabited dwelling, and the jury instructions and the verdict forms returned by the jury referenced only “Shooting At An Occupied Building.” “It is, of course, important that courts correct errors and omissions in abstracts of judgment.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Such clerical errors may be corrected at any time to reflect the facts determined at trial, and remand affords the opportunity for the trial court to do so in a new abstract of judgment.

DISPOSITION

We affirm the judgment of conviction against Mendez, but reverse the trial court’s sentencing order. Mendez’s sentence is vacated, and the matter is remanded for the limited purpose of allowing the trial court to exercise its sentencing discretion under amended section 12022.53, subdivision (h). Following resentencing, the court shall forward to the Department of Corrections and Rehabilitation a copy of the new abstract

of judgment, including designation of the offense for which Mendez was convicted in count 3 as discharge of a firearm at an “occupied building,” rather than at an “inhabited dwelling.”

GOETHALS, J.

WE CONCUR:

FYBEL, ACTING P. J.

IKOLA, J.