P. v. Costa

Filed 4/10/07 P. v. Costa CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

Defendant Conrad Joshua Costa was convicted of discharging a firearm with gross negligence, assault with a firearm, and being a gang member carrying a loaded firearm in public, all in connection with an assault on his then‑girlfriend. We reject each of defendants challenges to his convictions and sentence, and affirm the judgment.

There was sufficient evidence of assault with the firearm to sustain the conviction in that defendant was brandishing and firing a real gun, despite defense evidence that the gun was actually a starter pistol.

The trial court did not err by failing to give a unanimity instruction to the jury on the charge of assault. Each separate act by which defendant assaulted the victimhitting her, kicking her, pointing a gun at her, and threatening to shoot herwas a part of one continuous course of conduct, and a unanimity instruction was not necessary.

We find no abuse of discretion in the trial courts refusal to strike defendants prior strike conviction. The trial court refused to strike the prior strike, and explained its reasons for doing so.

The trial court sentenced defendant for assault with a firearm, and to a consecutive term for negligent discharge of a firearm. Defendants acts, intents, and objectives in committing these two crimes were different; therefore, the sentence was proper.

Statement of Facts and Procedural History

On September 7, 2002, defendant went to a bar with his girlfriend, Raeleen Alvarado, his sister, Yvette Costa, and Yvettes boyfriend. (We will refer to Yvette Costa by her first name to avoid confusion and intend no disrespect.) After drinking for several hours at the bar and at a friends house, defendant and Alvarado returned to Yvettes apartment, where they began arguing.

Alvarado fell asleep, but woke up to find defendant yelling, pulling what appeared to be a handgun from his waistband, and threatening to kill himself. Defendant walked out of the apartment and into the hallway of the apartment complex, and fired the gun. Defendant and Alvarado ran down the stairs of the apartment complex. Defendant stopped running, again threatened to kill himself, put the gun to his head, and pulled the trigger. Defendant fell to the ground, but was only pretending to be hurt.

When defendant got up, he approached Alvarado and yelled, get down, fucking bitch. Defendant pushed Alvarado to the ground and kicked her. Defendant also pointed the gun at Alvarados head, threatened to shoot her, and hit her on the side of the head.

Defendant claimed the object in his hand was not a handgun, but rather a starter pistol, and denied ever hitting Alvarado. Defendant admitted he was jumped into the F‑Troop gang when he was 13 or 14 years old, and was a member of the gang for eight or nine years. Defendant claimed that he left the gang in the fall of 2001 without telling any of the other gang members, and without suffering any consequences, by spending less time with the other gang members.

Yvette testified she bought a starter pistol at a garage sale, and might have donated it to charity some time after September 8, 2002; at the time of trial, she did not know where the starter pistol was.

Defendant was charged with discharging a firearm with gross negligence (Pen. Code,  246.3) (count 1) (all further statutory references are to the Penal Code), assault with a firearm ( 245, subd. (a)(2) (count 2), and being a gang member carrying a loaded firearm in public ( 12031, subd. (a)(2)(C) (count 3). One strike prior was alleged within the meaning of sections 667, subdivisions (d) and (e)(1) and 1170.12, subdivisions (b) and (c)(1), and one serious felony prior conviction was alleged within the meaning of section 667, subdivision (a)(1). A jury found defendant guilty of all three counts. Defendant had waived his right to a jury trial on the issue of his prior convictions, and the trial court found the priors to be true.

Before sentencing, defendant moved to strike his serious felony prior; the court denied that motion. On count 2, the court imposed the upper term of four years, doubled to eight years under the Three Strikes law. An additional, consecutive term of one year four months was imposed on count 1. The sentence on count 3 was stayed pursuant to section 654. The total term of imprisonment was 14 years four months. Defendant timely appealed.

Discussion

I.

Sufficient evidence supported defendants conviction for
assault with a firearm.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Defendant argues there was insufficient evidence to support his conviction for assault with a firearm because the eyewitness to the assault was not certain whether defendant hit Alvarado with the gun, or with the hand in which he was holding the gun. The use of a gun as a club or bludgeon constitutes assault with a firearm. (People v. Miceli (2002) 104 Cal.App.4th 256, 269-270.) Defendant argues that because the eyewitness could not affirmatively state whether defendant hit Alvarado with his hand or with the gun in his hand, the conviction for assault with a firearm must be reversed.

Assault is the unlawful attempt to commit a violent injury on another person, with a present ability to do so. ( 240.) We need not analyze the question whether hitting Alvarado with defendants hand or the gun in his hand constituted sufficient evidence of assault with a firearm because the eyewitness also testified defendant repeatedly pointed the gun at Alvarados head. To point a loaded gun in a threatening manner at another (especially if accompanied by threats to shoot, as here) constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury. [Citations.] (People v. Miceli, supra, 104 Cal.App.4th at p. 269.) Only if defendant did not have the present ability to inflict a violent injury on Alvarado when pointing the gun at her head would this not clearly constitute assault with a firearm. As will be explained post, there was sufficient evidence for the jury to conclude defendant was brandishing an actual firearm, not a starter pistol, with the present ability to inflict violent injury.

II.

sufficient evidence supported defendants conviction for grossly negligent discharge of a firearm and for being a gang member carrying a firearm in public.

Defendant also challenges the sufficiency of the evidence of his convictions for grossly negligent discharge of a firearm and being a gang member carrying a firearm in public. Defendant argues that the weapon he discharged, and with which he assaulted Alvarado, was a starter pistol, not a real gun.

An eyewitness to the crime heard gunshots and saw defendant threaten Alvarado with a gun. Alvarado heard what appeared to be actual gunshots. An expert witness testified that in numerous years of dealing with gangs, he had never encountered a gang member armed with a starter pistol. A few months after the crime, defendant was driving a car with a loaded nine‑millimeter handgun in it. On September 8, 2002, neither Alvarado nor Yvette mentioned to the police that defendant was firing a starting pistol. From all this evidence, the jury could reasonably have found defendant was shooting a real gun, rather than a starter pistol, on September 8, 2002. (People v. Montiel (1993) 5 Cal.4th 877, 917 [one witness testified the defendants handgun looked real, and another witness heard shots; evidence that the second witness suspected the gun was a starter pistol does not compel inference the gun was not real].)

Defendant and Alvarado testified the gun was a starter pistol. Yvette testified she purchased a starter pistol at a garage sale for use in attracting the attention of five‑ to seven‑year‑old girls during cheerleading practice, although she was not the cheerleading coach and had never used the starter pistol at cheerleading practice or for any other purpose. Yvette testified she might have donated the starter pistol to charity some time after September 8, explaining why it could not be produced as part of the defense at trial. The jury was entitled to reject all this testimony.

III.

The trial court did not err by failing to give a unanimity instruction.

Defendant argues the trial court erred by failing to instruct the jury on the need for unanimity on the act constituting the assault in count 2.[1]

The trial court has a sua sponte duty to give a unanimity instruction if the prosecution presents evidence of multiple acts to prove a single count. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) The court does not have a duty to give a unanimity instruction if the offense constitutes a continuous course of conduct. (People v. Maury (2003) 30 Cal.4th 342, 423.) This exception arises when the acts are so closely connected in time and place that they form a single offense. (People v. Napoles (2002) 104 Cal.App.4th 108, 115-116.)

Here, defendants assault on Alvarado, which included kicking, threatening her with a gun, and hitting her with the gun and/or his hand, was brief. The acts occurred within seconds of each other and were part of one course of continuous conduct. Thus, defendants attack on his victim was one prolonged assault, of which the individual blows and other indignities were inseparable components. (People v. Robbins (1989) 209 Cal.App.3d 261, 266.) In this case, no unanimity instruction was required, although defendant assaulted Alvarado in more than one way, because each separate act was a part of one continuous act of assault.

IV.

The trial court did not err in refusing to strike
defendants prior strike conviction.

Before sentencing, defendant moved to strike his prior strike conviction. Defendant argues the trial court abused its discretion in refusing to do so. Section 1385 only permits a trial court to strike a prior strike in furtherance of justice. ( 1385, subd. (a).) We review a trial courts order granting or denying a motion to strike a prior strike conviction under section 1385 for abuse of discretion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530.) In determining whether to strike a prior strike conviction, the trial court must consider both the constitutional rights of the defendant, and the interests of society represented by the People. (Ibid.)

Defendant argues the trial court abused its discretion in denying his motion because (1) the current offense is minor in that Alvarado was not physically hurt and (2) the prior strike for possession for sale of methamphetamine was a nonstrike offense, which was only elevated to strike status as a result of a true finding on an allegation under section 186.22 that the offense was committed for the benefit of a criminal street gang. The trial court in this case concluded, the interest of justice in this case does not require, dictate or allow the court to exercise its authority under [section] 1385 of the Penal Code: a judge can only reduce a three-strikes sentence if in light of the defendants current and past crimes and the particulars of his background, character and prospects, the defendant should be deemed outside the spirit of the three-strikes law. [] This defendant should not be deemed outside the spirit of the three-strikes law.

The record here shows the trial court was aware of its discretion to strike defendants prior strike conviction, but refused to strike that conviction. The court articulated the reasons for its decision, specifically citing defendants extremely poor performance while on probation and parole. The fact the trial court focused on one or more factors does not mean it did not consider the others. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) The trial courts decision was not an abuse of discretion.

V.

The imposition of a consecutive term on count 1
does not violate section 654.

Defendant contends the trial court erred under section 654 when it made his sentence on count 1grossly negligent discharge of a firearmconsecutive to his sentence on count 2assault with a firearm. Section 654 prohibits multiple sentences where a single act violates more than one statute, or where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct with a single intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19-20.)[2]

In count 1, defendant violated section 246.3 by negligently discharging a firearm twiceonce in the air in the hallway of an occupied apartment building, and once, according to the testimony of defendant and Alvarado, at himself. In count 2, defendant violated section 245, subdivision (a)(2) by, at least, pointing the gun at Alvarado and threatening to shoot her with it. Multiple punishment is permissible when the defendants objectives are similar but consecutive. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) Defendant argues all of his acts had the same intent or objective to frighten Alvarado.

Defendants intent and objective in pointing the gun at Alvarados head and threatening to shoot her were to physically hurt her. These threats to Alvarado are different than defendants intent and objective to frighten Alvarado in some general sense by shooting the gun in the air and at himself. Thus, the intent behind shooting the gun in the air was to frighten Alvarado, and the intent behind the assault with a firearm was to harm her. It is reasonable to conclude defendant did frighten Alvarado in the process of attempting to injure her, but that she was frightened by the threats does not mean that such fright was the intent and objective of that crime. Defendants intent and objective in kicking Alvarado and hitting her in the head, either with the gun or the hand in which he held the gun, were also to physically hurt her. These acts would have established simple assault. The jury was instructed that simple assault was a lesser included offense of assault with a firearm.

We reject defendants argument that our conclusion parses his criminal objectives too finely. In People v. Britt (2004)32 Cal.4th 944, 952, the defendant, a registered sex offender, violated both subdivisions (a) and (f) of section 290 by changing residences without notifying the local authorities in either his former or new community. The appellate court had concluded the defendant had two different objectivesmisleading the residents of the former community into believing a sex offender still lived there, and concealing from the residents of the new community that a sex offender was now living there. (People v. Britt, supra, 32 Cal.4th at p. 953.) The California Supreme Court, however, concluded the appellate court had parse[d] the objectives too finely, because the defendants objective in committing two separate violations was the sameto avoid police surveillance. (Ibid.) Here, by contrast, the objectives of the two crimes were different, as discussed ante.

A characterization of defendants objective and intent as simply to frighten Alvarado is too broad and general a statement. Indeed, such a characterization would be inconsistent with the holding of People v. Perez (1979) 23 Cal.3d 545. In that case, the Supreme Court concluded section 654 did not prohibit multiple punishment for different sex crimes committed against a single victim during a brutal attack lasting 45 minutes, and rejected the defendants argument that he had a single intent and objectivesexual gratificationin committing the many different sex crimes. Such an intent and objective is much too broad and amorphous to determine the applicability of section 654. Assertion of a sole intent and objective to achieve sexual gratification is akin to an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts. To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statutes purpose to insure that a defendants punishment will be commensurate with his culpability. (People v. Perez, supra, 23 Cal.3d at p. 552.)

Contrary to defendants assertion, our conclusion that a unanimity instruction on the assault charge was unnecessary is not inconsistent with this analysis. The acts constituting the assault were part of one continuous course of conduct. But the acts constituting the grossly negligent firearm discharge were separate in manner and place from those of the assault.

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

OLEARY, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

[1] The Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 3500 provides: The defendant is charged with _____ . . . [in Count ___ ] [sometime during the period of _____ to _____ ]. [] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.

CALCRIM No. 3501 provides: The defendant is charged with _____ . . . [in Count[s] ___ ] sometime during the period of _____ to _____. [] The People have presented evidence of more than one act to prove that the defendant committed (this/these) offense[s]. You must not find the defendant guilty unless: [] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed [for each offense]; [] OR [] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved that the defendant committed at least the number of offenses charged].

[2] The Attorney General argues defendant waived the right to challenge his sentence based on section 654 because he did not raise such an objection in the trial court. This argument has been repeatedly rejected by the California Supreme Court, since the failure to stay execution of a sentence under section 654 results in an unauthorized sentence and is in excess of the trial courts jurisdiction. (People v. Hester (2000) 22 Cal.4th 290, 295.)