Filed 11/13/18 P. v. Vargas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.

Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Daniel Sandoval Vargas stands convicted of attempted murder, shooting at an occupied motor vehicle, assault with a semiautomatic firearm, possession of a firearm by a felon, and possession of ammunition by a felon. Firearm enhancements pursuant to Penal Code[1] sections 12022.5, subdivision (a), and 12022.53, subdivision (c), were found true. Vargas admitted four prior prison term enhancements pursuant to section 667.5, subdivision (b). Vargas was sentenced on May 17, 2017.

Vargas contends the trial court erred by failing to instruct on the lesser offense of assault with a firearm. He also contends the case must be remanded for the trial court to consider exercising its discretion on the section 12022.53 firearm enhancement after the passage of Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB No. 620). We affirm.

FACTUAL AND PROCEDURAL SUMMARY

On January 18, 2017, a complaint was filed charging Vargas with attempted murder (§§ 664/187, subd. (a)/count 1), shooting at an occupied motor vehicle (§ 246/ count 2), assault with a semiautomatic weapon (§ 245, subd. (b)/count 3), possession of a firearm by a felon (§ 29800, subd. (a)(1)/count 4), and possession of ammunition by a felon (§ 30305 subd. (a)(1)/count 5). Appended to count 1 was a section 12022.53, subdivision (c) firearm enhancement and to count 3, a section 12022.5, subdivision (a) firearm enhancement. Various other enhancements also were alleged.

Jury trial commenced on April 5, 2017. Aaron Zuniga testified that he dated Vargas’s ex-girlfriend for a period of time. On two separate occasions, Vargas rode by Zuniga’s house. One time, Vargas said words to the effect he “should keep the girlfriend.” The first time Vargas appeared at Zuniga’s house, he was riding a bicycle. The second time, he was driving a Nissan vehicle and yelled something, but the words were unclear.

The morning of November 29, 2016, at about 7:30 a.m., Zuniga was driving toward his house after leaving a bakery. When he came to an intersection near his house, he saw Vargas in his Nissan heading toward him. The cars were facing each other. When both cars were in the intersection, Zuniga saw Vargas pull out a weapon.

Zuniga crouched down and allowed his car to continue slowly through the intersection. Zuniga could see Vargas as he drove toward him, pulled out the weapon, and continued driving into the intersection. There was no one else in Vargas’s car or in Zuniga’s vehicle. Vargas’s car came toward Zuniga at a “slowed pace.” Zuniga saw Vargas fire the weapon at him; four shots were fired.

When Vargas started firing the weapon, Zuniga “tried to hide.” Zuniga drove around the block, then headed to his house and parked. After parking, he called the police. The audiotape of Zuniga’s 911 call was admitted into evidence.

A bullet hit the driver’s side windshield of Zuniga’s vehicle. The driver’s side window was broken by a bullet. The door and fender also were struck by bullets. Zuniga did not see Vargas fire any of the shots because he had “crouched down,” but he saw Vargas pull out the “chrome colored gun.” Zuniga heard the “bang” of the shots and felt the “air go by from the shot” near his head. Zuniga’s vehicle did not have any bullet holes prior to the shooting.

After the shots were fired, Zuniga “made an effort to get up” and looked into the rearview mirror. He was checking to see if Vargas was turning and coming back; Vargas kept driving straight ahead.

A few hours after the shooting, Zuniga identified Vargas from a photographic lineup. Zuniga identified Vargas as the shooter and indicated “friends told me that he wanted to kill me.”

Orange Cove Police Officer Santiago Jurado arrived on the scene around 7:40 a.m., in response to a call of a drive-by shooting. Jurado took a statement from Zuniga. Jurado inspected Zuniga’s vehicle and observed four locations where gunshots had hit the vehicle. The driver’s seat was reclined, and the driver’s side window and fuses were shattered. Jurado found a spent Winchester nine-millimeter Luger shell casing in the intersection.

Zuniga’s mother, who was home during the shooting, reported hearing four gunshots from inside her home.

Because of the severity of the crime and the fact Vargas had a firearm, Jurado put out an advisory to law enforcement agencies to be on the lookout (BOLO). The advisory identified Vargas by name and described his vehicle. Reedley Police Department Detective Guillermo Garza heard the BOLO around 7:50 a.m.

Garza spotted a Nissan matching the BOLO description around 8:30 or 8:45 a.m. He ran a records check and determined the Nissan was registered to Vargas. Garza activated his overhead emergency lights; the Nissan failed to yield, so he activated the siren. The Nissan failed to stop and continued to drive away, at speeds up to 90 miles per hour, with Garza pursuing. Vargas drove through at least two stop signs without stopping.

Vargas’s vehicle skidded for about 10 or 15 feet, then Vargas turned onto Road 416. There was a lot of traffic on the road, but Garza watched as Vargas continued down Road 416 for about a quarter-mile, then got out of the Nissan as it was still moving. After Vargas exited the vehicle, Garza saw him “reaching into the waistband which is indicative to me of someone trying to conceal a weapon.” Garza identified the person who exited the vehicle as Vargas.

A BoreSnake, used for cleaning the muzzle of a gun, was found in Vargas’s Nissan. The BoreSnake was the size that would be used for a nine-millimeter caliber handgun, as well as two or three other calibers. A live nine-millimeter Winchester ammunition round was found on the driver’s seat. The live ammunition matched the shell casing found on the ground at the intersection of the shooting. An empty Winchester nine-millimeter ammunition box was found in the front seat of the Nissan.

Vargas was located and arrested at 10:36 a.m. He was no longer wearing the same clothes he had been wearing when he abandoned his vehicle and fled on foot. The clothes he had been wearing when he fled were found about a quarter of a mile from where Vargas was arrested.

No gun was located. Vargas was not tested for gunshot residue. The bullet found in Vargas’s car did not have Vargas’s fingerprints or DNA on it.

The defense presented testimony from Dr. Peter English, who described the many factors that can affect the reliability of eyewitness testimony.

The jury found Vargas guilty on all counts and the firearm enhancement true. Vargas admitted prior prison term allegations.

Vargas was sentenced to a term of 29 years in prison, including a term of 20 years for the section 12022.53, subdivision (c), firearm enhancement on the count 1 offense. The terms for the count 2 and 3 offenses and enhancements were stayed pursuant to section 654. Concurrent terms for the count 4 and 5 offenses were imposed.

DISCUSSION

Vargas contends the trial court erred by failing to instruct on the lesser offense of assault with a firearm. He also contends the case must be remanded for the trial court to consider exercising its discretion on the section 12022.53 firearm enhancement after the passage of SB No. 620.

1. No Instructional Error

Vargas contends the trial court erred by failing to instruct the jury on the lesser included offense of assault with a firearm. The evidence does not support this contention.

Standard of Review

A trial court is required to instruct the jury on a lesser included offense only if there is substantial evidence that absolves the defendant from guilt of the greater offense but not the lesser. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) “Evidence is ‘substantial’ only if a reasonable jury could find it persuasive.” (People v. Young (2005) 34 Cal.4th 1149, 1200; accord, People v. Moye (2009) 47 Cal.4th 537, 553 [“ ‘the existence of “any evidence, no matter how weak” will not justify instructions on a lesser included offense .…’ ”].) We review claims involving the failure to instruct on a lesser included offense de novo, considering the evidence in the light most favorable to the accused. (People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers).)

Background

The instructions given to the jury defined the term “firearm” and “semi-automatic firearm.” CALCRIM No. 965 defined “firearm” as “any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.” CALCRIM No. 875 defined “semi-automatic firearm” as a firearm that “extracts a fired cartridge and chambers a fresh cartridge with each single pull of the trigger.” CALCRIM No. 875 also refers the jury to CALCRIM No. 965 for the definition of a firearm.

No firearm was recovered. The testimony at trial regarding the weapon and bullets came from Jurado. Jurado collected “projectiles” from inside Zuniga’s car and had them booked into evidence. Jurado also testified that a spent shell casing was found in the middle of the roadway at the site of the shooting. Jurado was asked if he was able to determine “what caliber of projectile” or “what kind of weapon that it was discharged from.” Jurado stated he determined the shell casing to be a “Winchester 9 millimeter Luger” based on the line pattern on the shell casing.

Jurado explained that Luger was a brand of ammunition and the caliber of the ammunition from the casing was “9 millimeter.” The back of the shell casing was stamped “9 millimeter Luger W-I-N, which stands for Winchester.” The “projectiles” were partial and deformed and Jurado could estimate, but not determine precisely, a caliber from the projectiles themselves.

Jurado then went on to testify that a “spent shell casing is when you fire—you pull the trigger, the round goes off from the muzzle into the air, and the spent shell casing, it ejects from the assembly.” The prosecutor followed this response by asking, “what kind of firearm expends shell casings?” Jurado replied, “Semiautomatics.” The prosecutor then asked, “And is that a—sort of a definition—definitional thing about semiautomatics?” Jurado responded, “Yes.”

When it came time to discuss the jury instructions to be issued, the trial court commented there was testimony about four shots being fired, testimony about finding one shell casing that was a nine-millimeter, and testimony that a “semiautomatic handgun ejects [ ] shell casings” and “it’s kind of a distinguishing factor of a semiautomatic firearm [] that it ejects shell casings.” The trial court invited argument on whether an instruction on the lesser included offense of assault with a firearm was warranted, since no weapon had been recovered.

The prosecutor argued that no lesser included instruction should be given because the evidence established that a semiautomatic weapon was used. Defense counsel’s argument was not on point; he “misunderstood.” The trial court declined to give an instruction on the lesser included offense, stating:

“The defense theory is he didn’t shoot him at all. And I don’t think that they have—that we had any questions raised to any witness that suggested it could have been anything but a semiautomatic firearm. So under these facts, I’ll decline to instruct on the lesser. I think there’s evidence to support the charged crime, and if the jurors had a question as to whether it’s a semiautomatic firearm, I don’t see how they can find assault with a simple firearm. … I don’t think the lesser would give them anything more than a compromised point.”

Analysis

Assault with a firearm is a lesser included offense of assault with a semiautomatic firearm. (People v. Martinez (2012) 208 Cal.App.4th 197, 199.) A defendant’s punishment under section 245 depends upon which weapon was used in the assault. If a standard firearm is used, a defendant faces a maximum term of four years. (§ 245, subd. (a)(2).) If the assault is committed with a semiautomatic weapon, the maximum term is nine years. (§ 245, subd. (b).) The only difference between the two offenses is that assault with a semiautomatic firearm requires the use of a specific type of firearm, whereas the use of any type of firearm suffices for assault with a firearm. (§ 245, subds. (a)(2), (b).)

Here, as the trial court noted, there was no evidence that any weapon other than a semiautomatic firearm was used. Jurado testified that a spent shell casing was found in the middle of the roadway at the site of the shooting. Jurado stated he determined the shell casing to be a “Winchester 9 millimeter Luger” based on the line pattern on the shell casing. The back of the shell casing was stamped “9 millimeter Luger W-I-N, which stands for Winchester.” The prosecutor asked Jurado, “what kind of firearm expends shell casings?” Jurado replied, “Semiautomatics.” The prosecutor then asked, “And is that a—sort of a definition—definitional thing about semiautomatics?” Jurado responded, “Yes.”

Jurado’s testimony that a “definitional thing” about semiautomatics was that they eject the shell casing is sufficient to establish that the weapon used was a semiautomatic, not another type of firearm. The jury was instructed on the definition of a semiautomatic firearm and a firearm. We presume the jury understood and followed these instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Vargas argues, however, that no one testified to the mechanics of operation of a semiautomatic firearm, no shell casings were found in Vargas’s car, and the weapon was not recovered. While no shell casings were found in Vargas’s vehicle, a live round of ammunition matching the shell casing found at the scene of the shooting was in Vargas’s car, in addition to an empty box for the same type of bullet and a casing as found at the scene—Winchester nine-millimeter Luger. Further, Jurado testified to the relevant mechanics of a semiautomatic. Jurado testified that a “spent shell casing is when you fire—you pull the trigger, the round goes off from the muzzle into the air, and the spent shell casing, it ejects from the assembly.” When asked, “what kind of firearm expends shell casings[,]” Jurado replied, “Semiautomatics.” Jurado testified the ejection of the shell casing was “definitional” of a semiautomatic. That the weapon was not recovered from Vargas or the vehicle is irrelevant; Vargas was not arrested until about three hours after the shooting and had ample opportunity to dispose of the weapon after fleeing his vehicle.

Vargas has failed to point to any evidence indicating the weapon used in the shooting could have been anything other than a semiautomatic. Consequently, the evidence did not support an instruction on the lesser offense of assault with a firearm and the trial court did not err. (People v. Moye, supra, 47 Cal.4th at p. 553.)

2. SB No. 620

Vargas contends the case must be remanded for the trial court to exercise its discretion to strike or dismiss the section 12022.53, subdivision (c), enhancement in light of the passage of SB No. 620.[2]

Background

The probation report recommended that Vargas be sentenced to the aggravated term of nine years on count 1, attempted murder, plus a consecutive term of 20 years for the section 12022.53, subdivision (c) enhancement. The report also recommended a consecutive one-year term for a section 667.5, subdivision (b) enhancement. The probation report recommended the imposition of aggravated terms for the count 2 and 3 offenses and enhancement, to be stayed pursuant to section 654. It was recommended the aggravated terms be imposed for counts 4 and 5, to be served concurrently.

At sentencing, the trial court articulated a tentative sentence, and indicated it would allow the parties to be heard. The trial court noted that Vargas had “an increasingly serious criminal history, both starting as a juvenile and then as an adult.” Vargas had convictions for willfully evading an officer, vehicle theft, and vehicle theft that involved a property hit and run. Vargas had several violations of probation and violations of Post Release Community Supervision (PRCS). He was on PRCS at the time he committed the current offenses. The trial court identified all these factors as aggravating factors and noted that “the aggravating factor would be the use of a gun, and there’s a separate enhancement for that.” The trial court found no “mitigating factors with respect to the crime or the defendant.”

The trial court articulated a tentative sentence of the aggravated term of nine years on count 1, plus a 20-year consecutive term for the section 12022.53, subdivision (c) enhancement. As to the firearm, the trial court noted that Vargas “actually discharged and nearly struck” Zuniga with a bullet. The trial court struck the section 667, subdivision (b) enhancements because it had used the prior convictions and prior performance on probation and PRCS as aggravating factors. The trial court also imposed the aggravated terms on counts 2, 3, 4, and 5. The trial court indicated the terms for counts 2 and 3 and the enhancement would be stayed pursuant to section 654, and the terms for counts 4 and 5 would run concurrently.

In response, the People indicated agreement with the tentative sentence, noting that this case “was very close to a homicide.” The People also noted that Vargas fled the scene and evaded capture and has proven he is “not amenable and is not interested in rehabilitation.”

Defense counsel argued for the mitigated terms, noting that Zuniga was not “physically” hurt and Vargas had engaged in an impulsive act, not a premeditated act. The trial court imposed the upper terms on all substantive counts, over the objections of defense counsel.

After hearing argument, the trial court stated:

“His life has been pointing to this for the last several years. I mean, he shows a complete disrespect for the court, for law enforcement, and for the property and personal rights of others. Just go through his history and you can see that. It’s a constant, ongoing theme. He steals from people, he hits people. He ignores court orders. He ignores conditions of probation. He ignores conditions of mandatory supervision. He obstructs officers, evades officers, and his most recent felony crime for which he’s on his Post Release Community Supervision is recklessly evading an officer, putting officers and others at risk.”

The trial court went on to state Vargas’s behavior, “reflects a complete disrespect for the norms of society that are expected. Having engaged in this conduct he has earned the sentence to be imposed.” The trial court then stated:

“He’s shown an unwillingness to abide by the norms of society and conform his conduct to what’s expected. And then for a reason as cheap as feeling like somehow he’s been personally offended by someone because they wind updating [sic] his ex, he chooses to unload a semiautomatic firearm into a vehicle and nearly kill the man. … This is just somebody who thinks he can do what he wants to do, and has lived his life that way for the last decade, and now he’s gonna get to do what the people in the Department of Corrections allow him to do.”

The trial court concluded by stating, “There’s nothing mitigating about his past performance or this case that would warrant anything other than the aggravated term.” The trial court then went on to impose its tentative sentence.

Analysis

At the time of the sentencing hearing in this case, imposition of an enhancement under section 12022.53 was mandatory, and it could not be stricken in the interest of justice pursuant to section 1385 or any other provision of law. (People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363; People v. Sinclair (2008) 166 Cal.App.4th 848, 852-853; People v. Felix (2003) 108 Cal.App.4th 994, 999.)

On October 11, 2017, the Governor approved SB No. 620, which went into effect on January 1, 2018. (Stats. 2017, ch. 682, § 2.) As relevant to this case, SB No. 620 amends section 12022.53, subdivision (h), to give discretion to the trial court to strike a firearm enhancement in the interest of justice. Subdivision (h) now states:

“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 authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.”

Vargas argues SB No. 620’s amendment to section 12022.53 applies herein because his case is not yet final on appeal, and on remand the court must consider whether to exercise its discretion to strike the enhancement under the newly enacted version of section 12022.53, subdivision (h).

Both Vargas and the People agree that SB No. 620’s amendment to section 12022.53, subdivision (h), applies retroactively to cases not yet final on appeal. (People v. Brown (2012) 54 Cal.4th 314, 323; People v. Francis (1969) 71 Cal.2d 66, 75-76; In re Estrada (1965) 63 Cal.2d 740, 746.) The parties disagree as to whether the matter should be remanded.

The People argue that remand is unnecessary because the trial court’s sentencing decisions and comments disclose that it would not have used its discretion to strike the firearm enhancement and impose a lesser sentence. We agree.

Vargas’s conduct of repeatedly firing multiple shots at an unarmed man without any provocation whatsoever presents an egregious situation. The trial court took care to articulate a tentative sentence, noting the circumstances of the present offenses and Vargas’s criminal history, and issued a tentative sentence that differed from the probation report recommendation. The trial court then heard argument from both parties and imposed sentence, after articulating numerous reasons why the only appropriate sentence was the aggravated term.

Vargas argues that the trial court mentioning the California Rules of Court, the appropriate terms set by the Legislature, and imposing concurrent terms for counts 4 and 5, all indicate the trial court would exercise discretion to strike or dismiss the firearm enhancement. We view these comments differently. The trial court was making a thorough record of its sentencing choices, articulating its authority and rationale for its discretionary sentencing decision. The fact the trial court did so, noting that Vargas actually fired the gun and nearly killed Zuniga, and concluding Vargas has “earned the sentence to be imposed” reveals the trial court fashioned and imposed the term it considered most appropriate for Vargas, considering his current offenses and criminal history.

We find no indication in any of the trial court’s comments that it would strike or dismiss the section 12022.53 firearm enhancement. For the trial court to state, “And then for a reason as cheap as feeling like somehow he’s been personally offended by someone because they wind updating [sic] his ex, he chooses to unload a semiautomatic firearm into a vehicle and nearly kill the man[,]” indicates the trial court would not strike or dismiss the 20-year section 12022.53, subdivision (c) enhancement.

If the record shows “ ‘ “that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.” ’ ” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Here, the trial court considered the serious nature of the crimes committed by Vargas, his criminal history, and exercised discretion to impose the aggravated terms and consecutive terms. After the careful and deliberate fashioning of the overall total sentence, we conclude remand would be an idle act. (Id. at p. 425.)

DISPOSITION

The judgment is affirmed.