P. v. Olvera

Filed 6/25/07 P. v. Olvera CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Andrew C. Kauffman, Judge. Affirmed.

Julie Schumer, under appointment by the Court of Appeal; Michael Norris and Robert J. Waters for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dana R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

INTRODUCTION

Defendant Robert Olvera appeals from a judgment of conviction entered following a jury trial. Defendant was convicted of attempted premeditated murder (Pen. Code,  664, 187, subd. (a))^[1]in count 1, shooting at an occupied motor vehicle ( 246) in count 2, and carrying a loaded firearm that was not registered ( 12031, subd. (a)(1)) in count 4. The jury found true the allegations that defendant committed the offenses in counts 1 and 2 for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b); that defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1) and personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1) (count 1); and that defendant carried a firearm in a vehicle ( 12021.5, subd. (a), count 2).

The trial court sentenced defendant on count 1 to a term of 15 years to life plus 20 years under section 12022.53, subdivision (c), and an additional 10 years under section 12022.53, subdivisions (b) and (c), which additional enhancement was stayed pursuant to section 654; on count 2 to a term of 17 years to life, which was stayed pursuant to section 654; and on count 4 to the middle term of two years, to run concurrently with the sentence on count 1.

On appeal, defendant challenges the sufficiency of the evidence to support his conviction on counts 1 and 2 and the propriety of staying, rather than striking, the 10-year enhancement imposed for his count 1 conviction. We affirm.

FACTS

On August 15, 2005, at 2:40 a.m., Trevor Marcelin (Marcelin) was delivering newspapers from his car in Lawndale. Two vehicles, a van followed by a pick-up truck, were ahead of his car as he drove down Firmona Avenue. All three vehicles turned left onto 156th Street. The truck pulled over, Marcelin passed it and the truck pulled back in behind Marcelin. The van stopped at the next stop sign, followed by Marcelins car and then the truck. The van proceeded straight across the intersection. Marcelin turned right onto Mansel Avenue. A few seconds later, he heard gunshots and realized his car had been shot, but he could not identify where the shots came from. His rear window and front windshield were damaged. There was an indentation on the drivers side door. He did not know where the van and truck were at that point. He did not see any kind of activity between the van and the truck. Marcelin dialed 911, and he was placed on hold.

Marcelin turned left onto Manhattan Beach Boulevard. He proceeded to get into the left turn lane to make a U-turn at the next intersection, Grevillea Avenue, and stopped at the intersection. Marcelin saw the van enter the intersection and turn right on Manhattan Beach Boulevard. Then there were gunshots fired from the van. One shot hit the drivers door on the molding beneath the door, but did not penetrate it. No shot hit the front windshield.

The 911 operator finally responded and told Marcelin to go to the nearest police station. He went to the Lawndale sheriffs station and described what happened to law enforcement officers. About twenty minutes later, Marcelin was taken to a field identification, made no identification of individuals, but did identify the van at the location.

Responding to a call of shots fired, Deputy Sheriff Spencer Reedy and his partner made a traffic stop on a white van in the vicinity. Four people were in the van, and Deputy Reedy thought he remembered that defendant was in the drivers seat. During an ensuing search of the van, Deputy Sheriff Kenneth Brown found a gun under a mat behind the front seats. The occupants were all from Lennox.

In the subsequent investigation, Deputy Josh Harris found three cartridge casings on the street near where Marcelin showed him the shooting from the van occurredtwo in the westbound lane of Manhattan Beach Boulevard and one in the center median. A firearms expert determined the casings were fired by the gun found in the van. A gunshot residue test showed residue on defendant. Deputy Harris also saw bullet holes in the window of a nearby building and retrieved five bullet fragments, including one right inside the window of the building. The firearms expert determined that one of the fragments was not fired by the gun and another fragment was too small to evaluate. The other three bullet fragments could have been fired from the gun, but his evaluation was inconclusive. The three fragments looked as if they had hit an intervening hard object.

Detective Marc Lucio was a gang expert working at the Lennox sheriffs station, primarily with Hispanic gangs, including a gang called Lennox 13. Lennox 13 had approximately 450 documented gang members. The gang expert testified that defendant was an active member of Lennox 13. The three other occupants of the van were active Lennox 13 members. One of them was a juvenile. Gangs have generational subgroups or cliques. Within the Lennox 13 gang, defendant, approximately 29 year old, is a member of the Jokers clique and the juvenile was just coming in as a member of the PeeWee clique. Gang members identify themselves by tattoos. Gang members also have nicknames, also called monikers. Defendant and the juvenile had Lennox 13 tattoos. Defendants moniker was Sniper, a moniker that usually indicates somebody that is a shooter.

The gang expert testified that an older generation will run with juveniles in the gang as a mentoring process. The older generation will take the juveniles, for example, into a rival gang area to commit a shooting to show the juveniles how to commit a shooting.

In the gang experts opinion, the shooting in the instant case was for the benefit of Lennox 13. That Marcelin, the victim, was not a member of any gang did not affect the experts opinion. Another factor indicating it was a gang-related shooting was that it occurred around 2:30 a.m., when there were not many people out.

According to the gang expert, gang members go into a rivals territory and shoot someone or commit other crimes in order to show dominance, gain respect and status within their own gang, and instill fear in the rival gang. Lennox 13 was a longtime rival of a gang known as Lawndale 13, and the shooting took place in territory controlled by Lawndale 13. Shootings tend to break out when members from Lennox 13 or Lawndale 13 come across each other if they have a gun.

The gang expert added that gang members often tag their rivals territory with graffiti, usually depicting names or initials of the gang, to show they have been in the territory and committed the shooting or other crime there. Along the curb in the area where Marcelin saw defendants van driving, specifically, near Mansel Avenue and 156th Street, there was graffiti depicting initials identifying defendants gang, Lennox 13, and the graffiti appeared to have been placed there recently.

The gang expert testified that it is dangerous for a gang member to go into a rivals territory, so generally two or more will go together. Some of the gang members will be lookouts in order to find a target and check for the presence of law enforcement or witnesses. Two or more vehicles occupied by gang members often go together into the rivals territory. One vehicle will fire at someone, and then another vehicle will double back to insure that they hit their target and, if not, then the second vehicle will fire again at the target.

Defense

Defendant testified in his own behalf. Before the shooting, he had left a friends home on Mansel Avenue in Lawndale and was going to the freeway to get to his job. He was alone, driving a van at a speed of about 10 to 15 miles per hour. A truck came toward him from behind, as though it would bump into him; this continued for a few blocks. Then the truck pulled over and let a car pass, and the car was then behind him when he stopped at an intersection. Defendant went straight across the intersection. Defendant heard 5 to 10 gunshots, looked in the rearview mirror, ducked down, sped off and turned down a side street, at a speed of about 15 to 20 miles per hour or a little more. He was in enemy territory. When he looked back, he did not see the car. Defendant turned right onto Manhattan Beach Boulevard. He then saw the car come toward him and pull over a bit, like it was waiting for him. He got scared that somebody was going to shoot, and as he sped away, he grabbed his gun and shot it out the window into the ground, trying to scare the car away.

After firing the shots, defendant drove on to the 405 Freeway. He drove to pick up three friends. They had been at a picnic and were waiting on him to give them a ride home. After he picked up the friends, he started driving to Hawthorne to get his cell phone from his ex-wifes mother.

Defendant was pulled over by the police about 25 minutes after the shooting. He admitted the gun found in the search of the van was his. Later, he admitted firing the gun and that he was a member of Lennox 13.

On cross-examination, defendant confirmed he was a member of Lennox 13 and that, on the night of the shooting, he had a loaded, unregistered gun in the van.

Rebuttal

Detective Lucio testified that defendant was pulled over 17 minutes after Marcelin called 911. Later, at the station, after defendant was given Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436, 444), Detective Lucio conducted a videotaped interview with the defendant, which was played for the jury. Defendant explained how he picked up the three fellow gang members with him in the van before the shooting. Defendant admitted the gun was his.

CONTENTIONS

Defendant challenges his conviction on count 1, attempted premeditated murder, contending that the evidence is insufficient to establish the requisite intent to murder or that his actions constituted attempted willful, premeditated and deliberate murder. He also challenges the sufficiency of the evidence to support his conviction on count 2, shooting at an occupied motor vehicle. Defendant contends also that it was error for the trial court to stay, rather than strike, the 10-year firearm enhancement imposed pursuant to section 12022.53, subdivision (b), in connection with his conviction on count 1. As explained more specifically below, we disagree.

DISCUSSION

Sufficiency of the Evidence

The basic principles which govern judicial review of a criminal conviction challenged as lacking evidentiary support have been stated as follows: [T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) A reviewing court must defer to the trier of facts determination on the credibility of a witness and the truth or falsity of the facts on which that determination depends. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) [T]he relevant question on appeal is not whether [the appellate court is] convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt that defendant was guilty. (People v. Perez (1992) 2 Cal.4th 1117, 1127.) The same standard of review applies in cases where the prosecution relies primarily on circumstantial evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) Reversal on the ground of insufficiency of the evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Attempted Premeditated Murder

The elements of attempted murder are the intent to kill a human being and a direct but ineffectual act in furtherance of such intent. (People v. Miller (1935) 2 Cal.2d 527, 530.) Section 187, subdivision (a), states: Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. Conviction of the crime of attempted murder requires proof of express malice, that is, the specific intent to kill a person. (People v. Guerra (1985) 40 Cal.3d 377, 386; People v. Miller, supra, 2 Cal.2d. at p. 533.) Section 188 provides that malice is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.

Section 664, subdivision (a), provides a sentence enhancement for an attempted murder if it is proven to be willful, deliberated and premeditated. (People v. Seel (2004) 34 Cal.4th 535, 543, citing People v. Bright (1996) 12 Cal.4th 652, 665-669.) There is no first degree or second degree attempted murder. (Ibid.) The prescribed punishment for attempted premeditated murder is life imprisonment with the possibility of parole. ( 664, subd. (a).)

Defendant asserts that the evidence is insufficient to show that he had the requisite specific intent to murder Marcelin. ( 187; People v. Miller, supra, 2 Cal.2d at p. 530.) Neither is there sufficient evidence that he did any direct act towards, or in the furtherance of, murdering Marcelin. ( 21a; Miller, supra, at p. 530.) Defendant specifically contends that, based on the physical evidence and defendants testimony that he was shooting into the ground, there was insufficient evidence that he shot at Marcelin.

It is well settled that malice, or intent to kill, required to convict of attempted murder may be inferred from a defendants actions and other circumstances surrounding the crime. (People v. Smith (2005) 37 Cal.4th 733, 742.) It has been held that a defendants act of firing toward a victim at close, but not point blank, range, in a manner that could have resulted in the victims death if it was on target, is sufficient to support an inference of intent to kill. (Ibid.) That the defendant had no motive for firing at the victim or that the bullets missed the victim is not dispositive. If a defendant purposely uses a lethal weapon with lethal force against a victim, there are sufficient grounds to give rise to an inference of an intent to kill. (Ibid.)

Based on the evidence in the instant case, we conclude that a rational juror could reasonably infer that defendant had the requisite intent from the evidence that defendant had a loaded gun in the van and fired it in close proximity to and in the direction of Marcelins car. The inference of intent to kill is further supported by the evidence that defendant was a gang member driving in an area controlled by a rival gang and had a loaded firearm in his vehicle, together with the expert testimony that gang members go into a rival gangs territory to shoot someone in order to instill fear in the rival gang and gain status within their own gang.

Defendant further argues that the evidence shows his behavior was rash and impulsive, not careful, calculated action according to a conceived design or plan, and therefore, it does not support a finding of attempted deliberate and premeditated killing. Specifically, defendant claims the evidence shows that he fired his weapon only because he was frightened that Marcelin would shoot at him and that he intended only to scare Marcelin by firing at the pavement, not to kill him by firing at him or his car. Defendant asserts that the shooting was impulsive is also shown by the fact that he did not pause to take aim at Marcelin but rather fired as he was driving past Marcelin and then quickly sped away.

Defendant claims the evidence is insufficient to satisfy the tripartite test of People v. Anderson (1968) 70 Cal.2d 15 . . . , in deciding whether the evidence is sufficient to support a finding of premeditation and deliberation based on these three factors: (1) planning activity; (2) motive (established by a prior relationship and/or conduct with the victim); and (3) manner of killing. (People v. Sanchez (1995) 12 Cal.4th 1, 32.) Defendant contends the only evidence of any planning was the presence of the loaded gun in the van. He had no motive to kill Marcelin, in that they had no prior relationship. As to the manner of attempted killing, there was no evidence about any attempt to aim the firearm towards an area of Marcelins body where certain death would follow. Defendant asserts that, [i]nstead, the testimony described random firing while the van was passing an occupied vehicle in the left hand turn lane about to make a U-turn.

To bolster his argument, defendant contrasts certain facts in the instant case with the facts and inferences found by the Supreme Court in People v. Perez, supra, 2 Cal.4th 1117 to be sufficient to support first degree murder. We believe, however, that the legal principles applied in Perez do not support defendants argument. Perez clarified that the Anderson factors were guidelines only and that a finding of premeditation and deliberation may be based upon inferences derived from the facts. (Id. at p. 1125.) The Perez court stated that [t]he goal of Anderson was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. [Citation.] [] In identifying categories of evidence bearing on premeditation and deliberation, Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation. . . . (Ibid.) In the instant case, the jurors had evidence not only of the events that occurred, but also expert testimony regarding gang culture, which if the jurors believed applied here, could well give rise to inferences which a rational juror could reasonably determine showed defendants actions were deliberate and premeditated and taken with the intent to shoot someone in rival gang territory.

Whether defendants use of a lethal weapon with lethal force against Marcelin was premeditated and deliberate is not a question of time but rather the extent of the reflection. Premeditation can be established in the context of a gang shooting even though the time between the sighting of the victim and the actual shooting is very brief. [Citation.]  . . . [A] preplanned, purposeful resolve to shoot anyone in a certain neighborhood wearing a certain color, evidences the most cold-blooded, most calculated, most culpable, kind of premeditation and deliberation. [Citation.] (People v. Sanchez (2001) 26 Cal.4th 834, 849.) The evidence and inferences which support a finding of the requisite intent to kill in the instant case serve also as substantial evidence that defendants actions were premeditated and deliberate (ibid.) and, therefore, support defendants conviction on count 1. (People v. Bolin, supra, 18 Cal.4th at pp. 331-332.) We conclude that a rational juror could have been persuaded beyond a reasonable doubt that defendant was guilty of attempted willful, deliberate, premeditated murder. (People v. Hawkins (1995) 10 Cal.4th 920, 955.) Defendants attempted premeditated murder conviction must be affirmed. (Bolin, supra, 18 Cal.4th at p. 331.)

In count 2, defendant was charged with shooting at an occupied vehicle ( 246). Defendant contends that he shot at the ground in order to scare Marcelin, and there is insufficient evidence to show that he shot at Marcelins vehicle. For the same reasons defendants contentions as to specific intent for attempted murder fail, his contentions regarding the charge of shooting at an occupied vehicle also fail.

Enhancements

As to defendants conviction for attempted premeditated murder (count 1), the trial court imposed two weapons enhancements, one for 20 years pursuant to section 12022.53, subdivision (c), and another for 10 years pursuant to section 12022.53, subdivision (b). The trial court then ordered the 10-year enhancement stayed pursuant to section 654. Defendant contends that the 10-year enhancement pursuant to section 12022.53, subdivision (b), must be stricken.^[2]Defendant contends that subdivision (f) and subdivision (h) of section 12022.53 are conflicting and, contrary to the decision of Division 4 of this court in People v. Bracamonte (2003) 106 Cal.App.4th 704, 713, under the proper interpretation of section 12022.53 as a whole, the 10-year enhancement must be stricken. We disagree and affirm the trial courts action.

Section 12022.53, subdivision (c), provides for an enhancement of 20 years for any person who, in the commission of a crime of the type of which defendant was convicted, personally and intentionally discharges a firearm. Section 12022.53, subdivision (b), provides for an enhancement of 10 years for any person who, in the commission of a crime of the type of which defendant was convicted, personally uses a firearm.

Subdivisions (f) and (h) of section 12022.53 apply generally to all the enhancements mandated by section 12022.53. Subdivision (f) of section 12022.53 states: Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d). Subdivision (h) of section 12022.53 states: Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.

Defendant contends that section 12022.53, subdivisions (f) and (h), conflict on their face as to the 10-year enhancement findings. We conclude, however, that the subdivisions can be harmonized. In People v. Bracamonte, supra, 106 Cal.App.4th at page 713, Division Four of this court held as follows: To harmonize these seemingly conflicting provisions, we conclude that section 12022.53 operates to require the trial court to add the applicable enhancement for each firearm discharge and use allegation under that section found true and then to stay the execution of all such enhancements except for the one which provides the longest imprisonment term. Considering a similar issue, Division 6 of this court concluded that a section 12022.53, subdivision (b) enhancement should be stayed, not stricken, in People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.

Defendant argues that the Bracamonte decision flies in the face of the legal principle in People v. Harvey (1991) 233 Cal.App.3d 1206, 1231, that a trial court can impose or strike an enhancement, but not stay it, and to stay it amounts to an illegal sentence. Harvey states that [u]nless a statute says otherwise, an enhancement may be imposed or stricken, but this is the extent of the trial courts discretion. [Citation.] Imposition of sentence on an enhancement may not be stayed; to do so is an illegal sentence, citing People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1121-1124. (Harvey, supra, at p. 1231.) The enhancement issue before the Harvey court was not related to the firearm enhancements provided by section 12022.53 and did not involve a stay. The Harvey issue was whether the trial court had discretion to impose a lesser number of years than specified in Health and Safety Code section 11370.4, subdivision (a)(4), which provided, at that time, that when a person is convicted of one or more specified controlled substance offenses, [w]here the substance exceeds 100 pounds by weight, the person shall receive an additional term of 15 years. The Harvey court held that the statutory language was mandatory in nature and thus, the trial court had no discretion to impose a lesser term. (Harvey, supra, 233 Cal.App.3d at pp. 1230-1231.)

People v. Eberhardt, supra, 186 Cal.App.3d 1112, the case cited by Harvey, also does not support defendants argument. In Eberhardt, the defendants pled guilty as charged on various counts of robbery, assault, and firearms possession, with enhancements for prior felony convictions. The trial court then imposed sentence only on the robberies and stayed imposition of sentence on the enhancements and some of the other counts. The core issue was whether the enhancements for which no sentences had been imposed were appealable. (Id. at p. 1118.) As the Eberhardt court stated: [T]he court simply stayed imposition of sentence on the enhancements. [] This is an illegal sentence. . . . Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. [Citations.] Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion. (Id. at pp. 1121-1122, italics added.)

We are faced with a different issue in the instant case. Here, the trial court imposed the sentences on the enhancements and then stayed the execution of the sentences as to the enhancements requiring the lesser prison term. The Eberhardt court made it clear the sentence at issue there was illegal because the trial court never imposed a sentence on the enhancements. The court contrasted that situation with a sentence which was imposed, but its execution was stayed, such as occurred in the instant case. Where a court imposes sentence but stays its execution pursuant to section 654, an appeal lies from the stay as an order made after judgment under section 1238, subdivision (a)(5). [Citations.] But here the court did not impose sentence and stay execution; it stayed imposition of sentence. (People v. Eberhardt, supra, 186 Cal.App.3d at p. 1118, fn. omitted.)

In the instant case, as in Bracamonte and Carrasco, the question is whether, once a sentence for an enhancement has been imposed, the execution of the sentence may be stayed or must the enhancement be stricken.^[3] As the court held in Bracamonte, supra, 106 Cal.App.4th at page 713, and Carrasco, supra, 137 Cal.App.4th at page 1061,

and as supported by Eberhardt, supra, 186 Cal.App.3d at page 1122, we conclude that the trial court properly stayed the lesser-term firearm enhancement imposed pursuant to section 12022.53, subdivision (b), as to count 1.

The judgment is affirmed.

NOT TO BE PUBLISHED

SPENCER, P. J.

We concur:

MALLANO, J.

ROTHSCHILD, J.

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^[1] All further section references are to the Penal Code.

^[2] Defendant asserts that his failure to object to the enhancement sentence before the trial court is not fatal to his appeal. He cites authority that an appellate court may review an unauthorized sentence without an objection below (People v. Smith (2001) 24 Cal.4th 849, 852-854) and that an erroneous stay or failure to strike an enhancement amounts to an unauthorized sentence (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17). The People make no objection to review. Thus, we elect to review defendants contention on appeal.

^[3] The issue of whether lesser-term firearm enhancements pursuant to section 12022.53 may be stayed or, alternatively, must be stricken was decided in favor of the stricken alternative by the Third Appellate District in People v. Gonzalez (Dec. 29, 2006) 146 Cal.App.4th 327. That case is now pending before the California Supreme Court (S149898) pursuant to review granted March 14, 2007 on the petition for review filed by the California Attorney General.