P. v. Soria
Filed 10/10/07 P. v. Soria CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, Plaintiff and Respondent, v. ELEAZAR CALDERON SORIA, Defendant and Appellant. | C053191 (Super. Ct. No. 04-5171) |
During the dark of a summer night, defendant Eleazar Calderon Soria fired on police officers who were called to investigate a disturbance he had caused. Convicted of assault with a firearm on a peace officer, along with other crimes and enhancements, and sentenced to an aggregate term of 48 years in state prison, defendant appeals.
Defendants two contentions on appeal are that (1) the evidence was insufficient to sustain the convictions for assault with a firearm on a peace officer and (2) the trial court erred by not instructing the jury on brandishing a weapon as a lesser included offense of assault with a firearm on a peace officer. We conclude that (1) drawing all reasonable inferences in favor of the convictions, the evidence was sufficient to sustain the conviction for assault with a firearm on a peace officer and
(2) brandishing a weapon is not a lesser included offense of assault with a firearm on a peace officer.
We therefore affirm.
FACTS
In July 2004, defendant lived with his girlfriend Angelina Sanchez and their daughter in a trailer in West Sacramento. Another daughter of Angelina, Sarah Gonzalez, lived in the trailer next door. During the night of July 23 or the early morning of July 24, defendant, who was angry, awakened Angelina, grabbed her by the arm, and told her to call her son, Alex Sanchez.
Instead of calling Alex, Angelina called Sarah. Defendant took the phone away from Angelina and took her outside. He put a gun to Angelinas stomach. Sarah, who had come out of her trailer, saw what defendant was doing and begged him to stop. She tried to intervene, but he pushed her away. He then walked away. Sarah called 911.
Officer Jason Fortier of the West Sacramento Police Department responded to the scene shortly after midnight. He spoke to Angelina and Sarah. Angelina told the officer that defendant had threatened to shoot her and her children. He also threatened that if the police were called he would shoot the police. Defendant had a silver automatic handgun, with four to five magazines.
The police received information that defendant was at his brothers house, nearby, on Walnut Street. Several people came out of the Walnut Street residence, leaving defendant and others inside, including defendants uncle. Officer Justin Farrington called the cell phone of defendants uncle, making brief contact with the uncle, but the call went dead after defendant yelled something in the background. Officer Farrington took a position behind an oak tree, with a view of the door into the house. Meanwhile, defendants uncle came out of the house and reported that defendant had a handgun.
Upon hearing that defendant had a handgun, Officer Farrington moved to a new position behind a parked sedan, with Officer Ed Hensley. Officer Farrington laid down on the ground and was able to see the door into the house from there. The lighting conditions were poor, but there was a light above the patio just outside the door.
A police sergeant used the public address system in his patrol car to ask defendant to come out of the house unarmed. The police also had defendants son make the same request over the public address system in Spanish. No less than five announcements were made over the public address system, asking defendant to come out. Defendant did not respond.
After several minutes, Officer Farrington saw a handgun, held by two hands, protrude from the doorway of the house. Slowly, defendant moved outside the door. He was holding the gun at chest level, moving it up and down and then to the left and to the right, as if looking for a target. Officer Farrington was to defendants left. Defendant looked in Officer Farringtons direction and paused, appearing to look at the officer. Defendant pointed the handgun directly at Officer Farrington.
Having looked down the barrel of defendants gun, Officer Farrington withdrew, hiding behind the front tire of the car. His movement made noise, which, along with defendants looking and pointing the gun in his direction, led Officer Farrington to believe that defendant knew where he was. Defendant, however, retreated into the house.
Within 15 or 20 seconds, defendant reappeared in the doorway with his gun pointed in the direction of Officers Farrington and Hensley. Again looking down the barrel of defendants gun, Officer Farrington took a shot with his semiautomatic rifle. Defendant, whose torso had been turned in Officer Farringtons direction, rotated so that he was facing straight out the door and moved toward the interior of the house. As defendants torso swung to the right, he fired multiple rounds from the handgun. Officer Farrington fired another round, and either his first or his second shot hit defendant. Officer Hensley also fired at defendant. Although defendant fired eight rounds, none of them were in the direction of Officers Farrington and Hensley. They were directed, generally, straight out from the doorway or to the right.
DISCUSSION
I
Sufficiency of Evidence
Defendant contends the evidence was insufficient to sustain the convictions for assault on a peace officer. The contention is without merit.
When considering a contention that the evidence was insufficient to sustain the conviction, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses 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 beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Any person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years. (Pen. Code, 245, subd. (d)(1).) An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (Pen. Code, 240, italics added.)
Defendants specific contention is that he did not have the present ability necessary to sustain the conviction. He claims there was no evidence he knew where the officers were, citing the lack of lighting and the direction in which defendant fired -- that is, away from Officers Farrington and Hensley.
To the contrary, the evidence was sufficient to support reasonable inferences by the jury that (1) defendant either saw the officers or heard them and (2) his firing away from the officers was a result of either being shot or reacting to the officers shooting as he was attempting to shoot the officers.
Defendant either saw or heard Officers Farrington and Hensley and, thus, he knew where they were. Defendant asserts: Although it is true that both officers saw [defendant] turn towards them and point his gun in their direction, the absence of any light in their area means he could not possibly have seen them. Contrary to the inference defendant would have us draw, another reasonable inference supported by the evidence is that, despite the poor lighting, defendant saw the officers. After scanning the view from the doorway, defendant looked in the officers direction and pointed his gun at them. The second time that defendant appeared in the doorway he immediately focused his attention on the position of the officers. Even if he did not see them, his attention may have been drawn to the area when Officer Farrington made noise while drawing back to hide behind the tire.
The fact that defendants shots did not go in the direction of Officers Farrington and Hensley does not preclude a finding that he had a present ability to cause a violent injury to the officers. He aimed his handgun directly at the officers not once but twice. The second time he did so immediately upon reappearing in the doorway. He then fired eight rounds. The evidence supports the inference that the eight shots went in the other direction because defendant was reacting to the officers shots. Frankly, it is fortunate that the officers fired first because defendant, who had threatened to shoot any police who showed up and exhibited every intention of doing so rather than surrendering, was about to shoot in their direction.
The evidence was sufficient to support the present ability element of assault on a peace officer. Defendant contests the sufficiency of no other element, and we conclude that his contention is without merit.
II
Brandishing as a Lesser Included Offense
Defendant contends the trial court erred in not instructing, sua sponte, on brandishing a firearm (Pen. Code,
417, subd. (a)(1)) as a lesser included offense, where he was charged with assault with a firearm on a peace officer (Pen. Code, 245, subd. (d)(1)). The contention is without merit.
A trial court must instruct on all necessarily included offenses supported by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) The lesser offense must be necessarily included as a matter of law, considered in the abstract. (People v. Steele (2000) 83 Cal.App.4th 212, 218 (Steele).) An offense is necessarily included if either the elements of the greater offense (elements test), or the allegations in the accusatory pleading (accusatory pleading test), are such that the lesser offense is necessarily committed if the greater offense is committed. (People v. Birks (1998) 19 Cal.4th 108, 117.)
Brandishing a firearm is not a lesser included offense of assault with a firearm (or, as here, assault on a peace officer with a firearm). Therefore, not giving an instruction concerning brandishing a firearm was proper. (Steele, supra, 83 Cal.App.4th at pp. 217-221.)
As noted by Steele, supra, 83 Cal.App.4th at pages 219 and 220, the California Supreme Court, 40 years ago, implied or stated in dicta that brandishing a firearm is a lesser included offense of assault with a firearm. (See People v. Wilson (1967) 66 Cal.2d 749, 764 (Wilson); People v. Coffey (1967) 67 Cal.2d 204, 222, fn. 21 (Coffey).) Finding neither persuasiveness nor logic in the implied holdings or dicta of Wilson and Coffey, the Court of Appeal has consistently declined to consider those cases binding authority on the issue. Instead, the cases since then have consistently rejected the contention that brandishing a firearm is a lesser included offense of assault with a firearm.[1] (See Steele, supra, 83 Cal.App.4th at pp. 217-221, and cases cited therein.)
Based on the reasoning of Steele and the cases it cites, we conclude the trial court was not required to instruct the jury, sua sponte, concerning brandishing a firearm.
DISPOSITION
The judgment is affirmed.
NICHOLSON , Acting P.J.
We concur:
HULL , J.
CANTIL-SAKAUYE , J.
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[1]Steele provides the following as reasons for not considering Wilson and Coffey as binding authority on the issue:
a. The Supreme Court did not specifically state that brandishing was a lesser included offense to assault with a firearm.
b. The court did not discuss the rationale behind lesser included offenses.
c. The court did not overrule the prior published appellate court decisions holding that brandishing was not a lesser included offense to assault with a firearm.
d. After publication of Wilson, the Supreme Court has consistently reaffirmed the principle that a lesser and necessarily included offense is one that must be committed in order to commit the greater offense. ([People v. Escarcega (1974) 43 Cal.App.3d 391, 399-400]) noted that it was possible to commit an assault with a firearm without brandishing it, therefore brandishing cannot be a lesser included offense to such an assault.)
e. Wilson is not supported by any prior or subsequent cases, as [People v. Carmen (1951) 36 Cal.2d 768] did not so hold, and the footnote statement in Coffey is not binding authority. (Steele, supra, 83 Cal.App.4th at p. 220, italics in original.)
