P. v. Bernal

Filed 6/1/06 P. v. Bernal CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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. Craig E. Veals, Judge. Affirmed.

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Solomon Wollack, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Lydia Bernal of attempted voluntary manslaughter, a lesser included crime of attempted premeditated murder, finding she had personally used a firearm and had inflicted great bodily injury. (Pen. Code, §§ 664, 192, subd. (a); 12022.5, subd. (a); 12022.7, subd. (a); all further section references are to the Penal Code.) The trial court imposed an aggregate 16-year prison sentence, composed of a 3-year middle term, a consecutive 3 years for inflicting great bodily injury, and a consecutive 10-year upper term for personally using a firearm.

Bernal appeals, contending that the trial court erred in (I) failing to instruct the jury on the elements of assault with a firearm, contending that the instruction was required to be given sua sponte because assault with a firearm is a lesser included crime of attempted murder when the information charges, as here, an enhancement for personal use of a firearm; (II) imposing the 10-year upper term for such use; and (III) in violation of Blakely v. Washington (2004) 542 U.S. 296, imposing the upper term for such use without jury findings of fact supporting the imposition of the upper term. We reject Bernal's contentions and affirm the judgment.

FACTS

On February 9, 2003, Bernal, then 58 years old and unemployed, was living in a home owned by her 75-year-old mother, Consuelo Martinez, and her half-sister Lynda Lemus, approximately 38 years old. Although other family members previously had lived in the house, on this date Bernal was the only person living at the home. About 10:45 a.m., Martinez, Lemus, Lemus' adult stepson Jorge Lemus, and other family members arrived at the house to make repairs and store some furniture temporarily as part of a reorganization of the extended family's living arrangements.^[1] Although Martinez and Lemus had no plan to evict Bernal, who was not paying anything towards the upkeep of the house, Bernal was worried that they might evict her so other family members could move in. After Bernal and Lemus got into an argument, Martinez and Lemus went into the kitchen while Bernal went into her bedroom and retrieved a handgun. She entered the kitchen and fired one shot, hitting her mother in the shoulder. Next, she shot Lemus several times while cursing at her, inflicting serious wounds, and stopping only when the gun was empty. Lemus bumped Bernal while Bernal was trying to reload, forcing Bernal to drop the gun and enabling Lemus to escape outside and call for help. Now alone with Martinez in the kitchen, Bernal pointed the gun at her, cursed her, and told her to leave the house. Martinez staggered to the front porch where Jorge met her and helped her down the driveway. They were standing near a parked truck when Bernal emerged from the house and fired several shots in their direction, hitting the truck but missing Martinez and Jorge.

Bernal testified that she never intended to kill, shoot, harm, or threaten Martinez, but shot her by accident. She conceded that she did intend to shoot and harm Lemus by shooting her in the leg, but denied intending to kill her, explaining that after she first shot Lemus, her accumulated stress caused her to lose control and continue firing. Bernal claimed that when she fired at the truck she did not see Martinez or Jorge or know they were nearby and had no intent to kill, shoot, harm, or threaten them.

Bernal was charged and tried for three counts of attempted premeditated murder, one each against Martinez, Lemus, and Jorge. Each count charged her with personally using a firearm, and as to the counts involving Martinez and Lemus, she also was charged with personally inflicting great bodily injury. The court instructed the jury that attempted voluntary manslaughter was a lesser included crime of all three counts. The court did not instruct on assault with a firearm. The jury acquitted Bernal of all charges related to Martinez and Jorge. The jury also acquitted Bernal of attempting to murder Lemus, but convicted her of attempted voluntary manslaughter of Lemus and found that she had personally used a firearm and had inflicted great bodily injury.

At sentencing, the trial court considered a pretrial probation report which disclosed that Bernal sustained petty theft convictions in 1981, 1988, and 1999, and trial testimony that she had committed several minor assaults as a teenager, and had one physical altercation with Lemus about three years before the shootings. The probation report recommended imposition of an upper term, based on four aggravating factors (great violence and bodily harm showing callousness, a particularly vulnerable victim, multiple victims, and planning demonstrating premeditation) outweighing the sole mitigating factor of an insignificant prior criminal record. The prosecution's sentencing memorandum recommended imposition of the maximum 18½-year sentence, and Bernal's sentencing memorandum recommended a grant of probation on the basis that there were no aggravating factors, and objected to imposition of the upper terms in the absence of appropriate jury findings to support it, citing Blakely.

Rejecting Bernal's arguments that there were no aggravating factors, the trial court identified four: (1) the crime involved great bodily harm disclosing a high degree of callousness; (2) Bernal personally used a firearm in committing the crime; (3) Lemus was particularly vulnerable; and (4) Bernal's prior criminal convictions were numerous and of increasing seriousness. The court also identified three mitigating factors: (1) Lemus initiated, provoked, or participated in the incident, and previously physically or psychologically abused Bernal, showing that the crime involved unusual circumstances that were unlikely to reoccur, although the court stated that this factor was minor and entitled to little weight; (2) Bernal suffered from a mental condition that reduced her culpability; and (3) Bernal was aged as defined in the California Rules of Court.

In imposing the 3-year middle term for attempted voluntary manslaughter, the court stated that the aggravating and mitigating factors balanced. The court also imposed a consecutive 3-year term for inflicting great bodily injury, the only term that is prescribed for that enhancement. The court, however, imposed a consecutive 10-year upper term for personal use of a firearm. In explaining its sentencing choices, the court stated that Bernal's attack was â€