People v. Miranda CA5 ( 2021 )

Filed 1/21/21 P. v. Miranda CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078650
Plaintiff and Respondent,
(Super. Ct. No. F18903285)
v.
STEVEN COREY MIRANDA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
During an argument with his girlfriend, defendant Steven Corey Miranda
discharged a firearm at a vehicle in which his girlfriend was fleeing with two others. As
a result of this incident, defendant was charged and convicted by jury of three counts of
assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 1–3),1 shooting at an
occupied vehicle (§ 246; count 4), and discharging a firearm with gross negligence
(§ 246.3, subd. (a); count 5). The jury also found true firearm enhancement allegations
under section 12022.5, subdivision (a), as to counts 1, 2 and 3. At a bifurcated
proceeding, defendant admitted his prior felony conviction under section 245, subdivision
(a)(4), and the court found him guilty of being a felon in possession of a firearm
(§ 29800, subd. (a)(1); count 6).
Defendant was sentenced to an aggregate term of 14 years as follows. The court
imposed the upper term of four years for count 1 (§ 245, subd. (a)(2)), plus an additional
10 years for the firearm enhancement (§ 12022.5, subd. (a)); the upper term of four years
was imposed as to both counts 2 and 3 (§ 245, subd. (a)(2), each term to run concurrent to
count 1, plus 10 years on each count for the firearm enhancement (§ 12022.5, subd. (a)),
which were each stayed under section 654; the midterm of five years was imposed for
count 4 (§ 246), to be served concurrently with count 1; the term of two years was
imposed for count 5 (§§ 246.3, subd. (a), 667, subd. (e)(1), 1192.7, subd. (c)(1)) to be
served concurrently with count 1; and 16 months was imposed on count 6 to be served
concurrently with count 1 (§§ 18, 29800, subd. (a)(1)).
1 All further statutory references are to the Penal Code unless otherwise indicated.
2.
SUMMARY
I. Prosecution Evidence
A. The May 2018 Incident and Investigation
About 12:30 p.m. on May 15, 2018, Fresno County Sheriff’s deputies were
dispatched to a Wal-Mart in Selma to investigate a 911 call reporting shots fired at a
vehicle occupied by the driver (Joseph H.) and two passengers (K.F. and Lisa R.). Lisa
placed the 911 call, which was played for the jury; deputies met with the three occupants
of the car at a Wal-Mart parking lot to investigate.
Deputy Porter testified he interviewed K.F., who said she was hanging out at her
boyfriend’s (defendant) house on DeWolf Avenue that day, they had gotten into an
argument, and she wanted to go home. She said she gave defendant money for gas since
her house was a couple of towns away, and defendant left to get gas and was gone about
an hour.
K.F. explained to Porter that when Miranda returned he became angry at seeing
K.F.’s bags packed and by the door. K.F. said defendant grabbed a .22-caliber rifle, went
outside, shot his dog, and then put the gun in his truck and came back inside the house.
Once inside, defendant grabbed K.F.’s wrists, grabbed her by the throat, picked her up off
the floor while trying to get her phone, and then threw her to the ground. K.F. told Porter
she then went into defendant’s bedroom and shut the door; he turned on the television
outside the room and started watching television.
K.F. said when she used her phone, defendant kicked in the door and again
attempted to take the phone away from her. She managed to call her friends to pick her
up. When her friends (Joseph and Lisa) pulled up at defendant’s house, K.F. ran through
the back door with her belongings and got into Joseph’s car. Defendant ran outside and
retrieved the weapon from the bed of his truck and started firing at Joseph’s vehicle.
When K.F., Joseph and Lisa discovered defendant had the rifle, they ran into a mailbox
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across the road from the house as they were trying to leave, and as they pulled forward
onto DeWolf Avenue, K.F. heard something hit the car.
Deputy Joseph Moreda testified that he interviewed Joseph, who told Moreda he
did not know who the person was that shot the weapon at his car—Joseph had never seen
him before. Joseph said he had been at home in Fresno when he received a message from
K.F., his former sister-in-law, who wanted him to pick her up at the DeWolf property.
Joseph arrived to pick her up around 12:30 p.m., and K.F. started placing her things in
Joseph’s vehicle. When she had loaded her things, Joseph saw an Hispanic adult male
retrieve a rifle from a pickup truck parked in front of the house. When the person pointed
the rifle at the car, Joseph floored the car out of the driveway. Joseph said the shooter
was near the pickup truck where the rifle was retrieved. Joseph indicated his vehicle was
pulling out of the driveway at DeWolf when his vehicle was struck with what he thought
were bullets.
Deputy Aurelio Romero testified he interviewed Lisa, who appeared frightened to
him, and Romero took photographs of K.F. and her injuries as well as photographs of the
damage to Joseph’s car.
Deputy Porter investigated the scene at DeWolf Avenue and found a broken
mailbox across the street from the DeWolf residence. He also found two .22-caliber
spent casings on the driveway of the DeWolf residence near the front door area, about 60
to 100 yards from the road. Porter did not locate a rifle at the residence or in the vicinity,
including at a residence nearby. He did not find any additional shell casings or bullets on
the property.
Photographs were taken of the damaged mailbox, but deputies did not go into the
DeWolf residence. Porter opined the damage on Joseph’s car was consistent with bullet
damage. Later that same afternoon, Deputies Romero and Moreda detained and arrested
defendant during a traffic stop.
4.
B. K.F.’s and Joseph’s Preliminary Hearing Testimony
Approximately a week after the shooting, K.F. and Joseph were arrested together
on another matter. They were both in custody at the time of the preliminary hearing.
K.F. denied seeing defendant that day, fighting with him, or being touched by him—she
claimed her other former boyfriend had beaten her. K.F. denied defendant shot the dog
or fired the weapon at her. K.F. denied speaking with law enforcement about the incident
and testified she was shopping with Joseph that day.
Joseph testified he did not remember anything from the day of May 15, 2018, that
he had never seen defendant before, and did not recall speaking to law enforcement
because he had been on drugs. Joseph also invoked his Fifth Amendment right against
self-incrimination as to some of the questions.
C. K.F.’s and Joseph’s Trial Testimony
1. K.F.
K.F. testified at trial she had been dating defendant on and off since February
2018. She had been staying with defendant at his grandfather’s house a few days before
the incident occurred, and on May 15, 2018, they had an argument. She had ingested
methamphetamine at about 6:00 a.m., and defendant had been acting really irritated and
agitated that morning. Around 10:00 a.m., while they were arguing, defendant walked
outside with a rifle and shot his grandfather’s dog. K.F. saw defendant fire a shot at the
dog, who was on the side of the house by one of the main hedges near the front door. She
heard gunfire, heard a yelp, and saw the dog run away. He came back in the house
without the rifle, and she was angry because he shot the dog. She sent a text message to
Joseph and Lisa that defendant had shot the dog and that she wanted to leave.
K.F. and defendant started arguing when he came in, and then defendant “left to
go take the cans in.” K.F. walked out of the house to look for the dog, walking the entire
property about three or four times. During her search, defendant helped her look for the
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dog. At some point, K.F. offered to pay defendant for gas to take her home, but he did
not leave to get gas.
Back in the kitchen ostensibly after the search, they began arguing again.
Defendant grabbed her by the arms and held her for just a second, enough to leave a
bruise.2 She remembered telling a deputy that after defendant shot the dog, he returned
inside and grabbed her by both of her arms, but did not remember telling the deputy that
defendant grabbed her by the neck.
K.F. went into a bedroom, locked the door, started packing her things, and texted
Joseph and Lisa that she really needed to go home because she was fighting with
defendant. Defendant kicked open the bedroom door and tried unsuccessfully to grab the
cell phone. When he came into the room, she was packing her stuff. Then he went to the
front of the house and continued to scream and yell at her while she packed her
belongings.
Having gathered her belongings, K.F. went out the back door onto the porch to
wait, but continued to argue with defendant through the screen door. When Joseph and
Lisa pulled into the driveway, K.F. grabbed her overnight bag, and headed toward
Joseph’s car. Defendant walked outside through the front door. While K.F. was putting
her things in Joseph’s back seat, she looked up and saw defendant had the rifle in his
hands. He pointed the rifle at the car and that was when she jumped in and Joseph took
off backwards out of the driveway. Defendant fired the rifle at the car, and Joseph hit a
mailbox while backing up. When the car started moving forward away from the mailbox,
defendant shot the rifle at the car again and hit the bumper. Defendant fired a third shot
and it sounded like it hit near the back tire.
2 The testimony about the search for the dog was elicited in fragmented parts during direct
and cross-examination.
6.
Later in K.F.’s direct examination, the prosecutor asked her again about the
progression of the shooting in relationship to the location of the car.
“[Prosecutor]: Okay. I’m going to take you back to when you’re in
the car and you reversed and hit the mailbox. You said that the—when you
pulled forward is when [defendant] shot at the car; correct?
“[K.F.:] Yes.
“[Prosecutor:] And you said he hit the bumper?
“[K.F.:] Yes.
“[Prosecutor:] When he shot and hit the bumper, how far was
[defendant] standing away from the car?
“[K.F.:] I’m not too sure.
“[Prosecutor:] Okay. You heard gunshots, though; correct?
“[K.F.:] Yes.
“[Prosecutor:] How many in total during that incident did you hear?
“[K.F.:] I heard about three.
“[Prosecutor:] When you pulled forward out onto the street you said
he shot again; correct?
“[K.F.:] Yes.
“[Prosecutor:] From this—at this moment in time, do you know
how far [defendant] was standing away from the car?
“[K.F.:] No.”
On cross-examination, K.F. was questioned again about the progression of the
shots fired in relation to the position of the car and defendant. She testified when she
jumped into Joseph’s car, defendant had the gun in his hands already and he was pointing
it at the car. Defendant was standing by the driveway and walking toward them. When
they backed up into the mailbox, they lost sight of defendant. Both she and Lisa were
yelling at Joseph, telling him to go. When defendant fired the first shot, he was almost at
7.
the road and they were backing up into the mailbox. She testified the second shot was
fired when they were pulling forward and had just passed the first neighbor’s house on
DeWolf. They did not see defendant fire the second shot, but he was already by the road.
She heard the third shot fired when they were “about to stop the car in the middle of the
road.” Joseph stopped the car after traveling forward about 48 or 50 feet, and they saw
defendant leaving in his truck driving the opposite direction from Joseph’s car. By this
time, Lisa had called 911.
K.F. was questioned at length about the variance between her trial testimony and
her preliminary hearing testimony. She testified that leading up to the preliminary
hearing, she was in custody and had been convicted on another matter. She claimed there
were consequences to testifying against other people in custody, including life-
threatening danger, and she was reluctant to testify. K.F. had called her mother on
June 20, 2018, and discussed being subpoenaed to testify at defendant’s preliminary
hearing. She told her mother she did not want to testify because she was worried she
would get her “ass beat” when she returned “to [her] pod.” An audio recording of the
phone call was played for the jury. In another phone call with her mother on June 28,
2018, her mother gave her advice about how to testify at the preliminary hearing in a way
that would be less than forthcoming about what had happened. She acknowledged she
lied at the preliminary hearing because she was scared of retaliation.
2. Joseph
Joseph testified K.F. is his former sister-in-law, and they had known each other for
about 15 years. He was currently serving a sentence for a felony related to identity theft,
which also involved K.F., and he was arrested about six days after the events in this case
occurred.
On the day of the incident, Joseph was with his girlfriend Lisa. K.F. contacted
them and indicated she needed a ride to her mother’s house, but she did not say why. He
and Lisa went to the house on DeWolf twice—the first time K.F. texted that she was not
8.
ready to go, so Joseph and Lisa went to get something to eat, and about an hour later they
came back a second time to pick her up.
Joseph had been to the house on DeWolf before, but he had never been in it. The
house had an oval driveway in front of it, but he situated his car so that its rear bumper
was right at the entrance of the driveway just off of DeWolf. It was about 35 or 40 yards
to the house. He did not see where K.F. came from when she approached his car. Lisa
was in the front passenger seat, and K.F. opened the back, right-side passenger door. She
was carrying a backpack and a couple of bags.
K.F. had said something in her text about defendant shooting a dog so she wanted
out of there. When she got to the car, she was arguing with someone they could not see.
She set her bags down twice before she got to the car while she was engaged in the
argument. When she stepped into the car, she suddenly yelled that the person she was
arguing with had a gun and they looked up and saw that defendant was going toward a
truck, reaching in, and pulling out a rifle. Both K.F. and Lisa began to scream that
defendant had a gun, so Joseph put the car in reverse and floored it backwards out of the
driveway. Joseph looked up to see that defendant had a rifle, but could not tell what type
it was.
Upon backing out of the driveway, Joseph crashed into a mailbox on the opposite
side of DeWolf, and then put the car into drive and sped off. He did not see defendant
after that, he was focused on the road ahead. After he got about 20 feet down the road, he
heard what sounded like three bullets ricocheting off the car. There was a perpendicular
street ahead forming an intersection with DeWolf where Joseph stopped. Lisa was
already on the phone with 911, and they were waiting to see if defendant would pull out
of the driveway in his truck, which he did. Defendant, however, went northbound away
from them.
Joseph did not examine his car until he got to the Wal-Mart parking lot and waited
for deputies to arrive. He had owned the car for about six months and the damage he
9.
found had not been there before. In a jail visit with his fiancée just before the preliminary
hearing, which was recorded and played for the jury, Joseph mentioned to her he was not
worried about losing the car because she had seen how he treated the car and he “didn’t
really care about it.” She responded that he was “kind of mean and … violent towards
it.”
Joseph, too, was questioned at length about the divergence from his preliminary
hearing testimony. He claimed he had not wanted to testify at the preliminary hearing
because he was in custody in the general population. He testified that someone in general
population who testifies will get “stomped out,” so he was fearful for his safety. Joseph
wrote a letter to the district attorney’s office stating that he could not testify due to his
“‘safety.’” The following week, he wrote a similar letter to the district attorney’s office
stating his “‘fear in testifying is the reprisal of other inmates.’” In talking with his
fiancée just before the preliminary hearing, Joseph told her that he would plead the Fifth
and not testify to avoid having his “throat sliced.” Joseph also had a recorded jail
conversation with a friend prior to the preliminary hearing, wherein he noted that if he
did not testify about what happened, the insurance for his car probably would not pay.
Although Joseph had concerns about testifying at trial, a week before trial he was
placed in administrative segregation away from the general population. He went into
administrative segregation because a kite had come in saying that they had read the police
report, which placed Joseph’s life in jeopardy because he was labeled a snitch. Joseph
explained that the kite instructed that Joseph was to be taken out, but the “rep” who was
in charge of Joseph’s prison group said they would not do anything until defendant had a
chance to present “‘paperwork’” to back up what was in the kite. Joseph was trying not
to get “smashed” before the “paperwork” showed up backing up the kite, and that is what
made him request a transfer to administrative segregation.
10.
D. Jail Recordings of Defendant’s Conversations
While in jail, defendant had a phone conversation with his brother, and his
grandfather and father visited, and these recordings were played for the jury. During the
phone call with his brother, defendant asked if “the cops found the gun.” Defendant
stated that “[i]t’s over there at Giovanni’s.” When his father and grandfather visited,
defendant did not refute his grandfather’s contention that he had taken the gun out of his
grandfather’s bedroom. Defendant also later said that law enforcement did not have “the
gun that I use[d] … they don’t have no residue on my hands.” During another call with
his brother, defendant stated that he had “good information” that “everybody’s locked
up,” and defendant indicated he would send out a “kite.”
II. Defense Case
Defendant presented no affirmative evidence.
DISCUSSION
I. Testimony of K.F. and Joseph Constitutes Substantial Evidence
A. Standard of Review
“The Due Process Clause of the Fourteenth Amendment denies States the power to
deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt
every element of the charged offense[]” (Carella v. California (1989) 491 U.S. 263, 265,
citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by
substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the
relevant inquiry governing a challenge to the sufficiency of the evidence “‘is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.’”
(People v. Nguyen (2015) 61 Cal.4th 1015, 1055.)
“The record must disclose substantial evidence to support the verdict—i.e.,
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.” (People v. Zamudio,
11.
supra, 43 Cal.4th at p. 357.) “In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence.” (Ibid.) “‘[I]t is
the jury, not the appellate court which must be convinced of the defendant's guilt .…’”
(People v. Nguyen, supra, 61 Cal.4th at pp. 1055–1056.) “A reversal for insufficient
evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio,
supra, at p. 357.)
B. Analysis
Defendant argues there is no legally sufficient evidence that he shot at Joseph’s
vehicle. Defendant maintains that K.F.’s and Joseph’s testimony that defendant shot at
the car was inherently improbable, especially given the lack of corroborating evidence.
Joseph testified he had not heard what sounded like bullets ricocheting off the car until
after he had hit the mailbox and was driving away southbound on DeWolf. K.F. testified
when she heard the second shot, she saw defendant standing on DeWolf and when she
heard the third shot, Joseph’s car was already parked at an intersection on DeWolf.
Meanwhile, Lisa indicated in her 911 call that defendant shot at the car while it was
backing up toward the mailbox. The only bullet casings found on the property were near
the house, not near DeWolf, and the only damage on the car consistent with a bullet was
in the back of the car, which was inconsistent in certain ways with how Joseph and K.F.
described the shooting. Defendant contends that the testimony of K.F. and Joseph is
demonstrably false and cannot constitute substantial evidence to support the verdicts for
shooting at an inhabited vehicle (count 4) and negligently discharging a firearm (count 5).
We disagree the trial testimony of Joseph and K.F. was insubstantial and
uncreditable by the jury. Except in rare instances of demonstrable falsity, doubts about a
witness’s credibility should be left for the trier of fact. (People v. Brown (2014) 59
Cal.4th 86, 105.) To be rejected as insubstantial evidence on review, the evidence
12.
believed by the jury must represent either a physical impossibility that it is true or the
falsity of the evidence must be apparent without resorting to inference or deduction. (In
re Frederick G. (1979) 96 Cal.App.3d 353, 367.)
There is no doubt K.F. and Joseph each had damaged credibility. They both
admitted to lying extensively at the preliminary hearing, and they had both been
convicted of a fraud crime, further damaging the general veracity of their testimony. K.F.
admitted she had ingested some amount of methamphetamine on the morning of the
shooting. In their trial testimony, they each gave somewhat differing accounts of the
sequence of events. The physical evidence related to the shooting did not conclusively
establish the truth of their testimony, either. But none of these issues rendered their
testimony about the shooting physically impossible or demonstrably false without resort
to any inferences or deductions. (People v. Brown, supra, 59 Cal.4th at p. 105.)
At the preliminary hearing, K.F. testified that the events of May 15, 2018, never
occurred and defendant never shot at Joseph’s car, and Joseph testified he could
remember nothing about that day. However, there was evidence from which a reasonable
jury could have deduced that their preliminary hearing testimony was the product of their
fears about testifying against defendant. Both of them were in custody and they each
testified there was danger for an inmate in testifying against another inmate. K.F. and
Joseph explained that their reluctance to testify truthfully at the preliminary hearing was
due to safety concerns, Joseph sent letters to the district attorney’s office to that effect,
told his fiancée he did not want his throat sliced so he was planning not to testify, and
K.F.’s own mother counseled her not to be truthful at the preliminary hearing.
A recorded jail conversation between Joseph and his friend showed he was
conflicted about testifying that nothing had happened because he was unsure what would
happen to his car insurance claim regarding the damage from the incident. To
corroborate that K.F.’s and Joseph’s fears were warranted, at trial the prosecutor
introduced a recorded jail call between defendant and his brother in which defendant said
13.
he had heard good news that “everybody’s locked up” and he was going to send out a kite
from which retaliation plans were inferable. In sum, there was a factual basis for the jury
to credit Joseph’s and K.F.’s trial testimony that they had lied at the preliminary hearing
because they were afraid of retaliation.
It is also true that K.F.’s and Joseph’s trial testimony was not entirely consistent as
to the sequence of how and when defendant fired the weapon at Joseph’s car, as well as
some other details about which dogs were on the property and exactly when K.F. sent
text messages to Joseph and/or Lisa. K.F.’s testimony about when the shots were fired
was elicited in stages and it was somewhat difficult to ascertain exactly when she
perceived the shots fired relative to the position of the car. She seemed to recall at least
one shot was fired while they were still backing up toward the mailbox and that she had
seen defendant standing near or on DeWolf when he fired the second shot. Joseph
indicated at trial the shots were all fired after his car hit the mailbox, but he had reported
to Deputy Moreda he thought two bullets struck the car as he pulled out of the driveway.
Lisa’s 911 call indicated defendant shot at the car as it pulled out of the driveway in
reverse.
Those inconsistencies, however, do not “do violence to reason, challenge
credulity, [or] in the light of human experience, emasculate every known propensity and
passion of people under the conditions testified to by [people experiencing similar
circumstances].” (People v. Carvalho (1952) 112 Cal.App.2d 482, 489.) The
circumstances about which Joseph and K.F. testified regarding the shooting were chaotic
and occurred in an extremely short period of time. Joseph was driving a car and K.F. was
confined to the back seat—it is not clear they both had unobstructed views of defendant
during the course of the shooting. It is not unimaginable that there would be uncertainty
or fluctuation in their recall of the precise moment when they perceived bullets striking
the vehicle in conjunction with where the car was located at that exact time. Nothing in
these inconsistences rendered their testimony inherently impossible.
14.
The physical evidence does not render their testimony demonstrably false, either.
Two spent bullet casings were found much closer to the house than the road, but it is
entirely possible that K.F. was inaccurate when she believed she saw defendant close to
or on DeWolf when he fired his second shot. She was admittedly in the back seat of the
car, and testified she lost sight of defendant when they backed into the mailbox. It is also
entirely possible that defendant was near the road, but spent shell casings were simply not
discovered in that location. The damage on the car that deputy Porter considered
consistent with bullet damage was near the rear bumper and wheel well. If the car was
backing out of the driveway, defendant argues no shots fired at the car could have hit the
car in those rear locations. But that is only conjecture. Joseph testified he backed the car
out in a curved manner so that he was facing south—it is not impossible that the rear
bumper and wheel well were exposed to defendant from that vantage point. Further,
there was testimony shots were fired while the car was pulling forward after hitting the
mailbox and, thus, could have damaged the rear bumper and wheel well at that point.
The location of the car damage does not render Joseph’s and K.F.’s testimony
demonstrably false.
This is unlike the situation in United States v. Chancey (11th Cir. 1983) 715 F.2d
543, which defendant asserts is analogous. There, a purported kidnapping victim testified
she had not consented to driving with the defendant from Florida to California, despite
that she had multiple opportunities to escape and described circumstances that were
entirely at odds with being transported across the country against her will. In rejecting
the purported victim’s testimony as insubstantial, the court explained it could not “escape
noticing that walking hand in hand [with the defendant] in the presence of others, riding
piggyback [with the defendant] in a public place, declining to take advantage of any
number of golden opportunities to ask for help or escape, including not a word in the
presence of a policeman, as evidenced by her own testimony, simply cannot pass muster
15.
in the reasonable mind that an individual is being detained and transported against his or
her will.” (Id. at p. 547.)
Nothing about K.F.’s and Joseph’s trial testimony is similarly beyond reason and
human experience. Their testimony was largely consistent as to the salient factors—they
both testified defendant pulled a rifle from his truck and that he pointed it at them, they
both testified Joseph took off backwards out of the driveway, trying to flee, and hit a
mailbox on the other side of the road, and, most importantly, they both testified defendant
fired approximately three shots at the car during their attempt to leave. The mailbox was
damaged as they reported, there was damage to the vehicle that was consistent with bullet
damage, and there were empty shell casings found on the property from which the jury
could reasonably infer were from the incident. Moreover, the 911 call was made
contemporaneous with the shooting and indicated Joseph’s car had been fired upon. The
fact that there was variance in their testimony about exactly when the rifle was fired is
consistent with the speed and stress of the circumstances.
Distinguishable too were the circumstances in People v. Casillas (1943) 60
Cal.App.2d 785, where the reviewing court deemed a witness’s trial testimony
insubstantial evidence. (Id. at p. 794.) There, the defendant was charged with two counts
of rape and two counts of incest. The victim, defendant’s 15-year-old daughter, testified,
upon threats of contempt of court, that her father impregnated her; on cross-examination,
she testified she never had sex with her father, and she was only saying that to protect the
man who had impregnated her; on redirect, she testified she was really just trying to
protect her father because she did not want him to get into any trouble. On recross-
examination, she testified she had had sex with both her father and this other individual,
and then at the conclusion of the recross examination she said she had never engaged in
an act of intercourse with her father. (Id. at pp. 788–792.) The court concluded her
testimony was so lacking in substantiality as to truth or credibility that it fell far short of
the quantum of verity, reasonableness and substantiality required by law in criminal
16.
cases; it was tantamount to no evidence at all sufficient to overcome the presumption of
innocence. (Id. at p. 794.)
Nothing here is similar to Casillas. K.F.’s recounting of the shooting was not
entirely consistent, but she did not vacillate in her trial testimony that defendant fired the
rifle at the car three times. There was also no corroborating evidence or incriminatory
circumstances shown in Casillas while there was some evidence to corroborate K.F.’s
and Joseph’s testimony here. (People v. Casillas, supra, 60 Cal.App.2d at p. 792.) As
already noted, Lisa called 911 during the shooting and reported defendant had in fact
discharged a firearm at the vehicle, which corroborated K.F.’s and Joseph’s testimony.
Moreover, there was damage to the vehicle that was consistent with damage a bullet
would cause, even though Deputy Porter could not testify how recently that damage had
occurred and even though it was noted in a jail call that Joseph was not careful with his
car.
While there were credibility issues and some factual inconsistencies and conflicts
the jury had to resolve, those problems did not render K.F.’s and Joseph’s testimony
demonstrably false or inherently impossible. The jury was entitled to consider the
testimony of these witnesses, and it was substantial evidence that could support the
verdicts on counts 4 and 5 that defendant discharged a weapon at Joseph’s car.
II. Conviction for Discharge of Firearm with Gross Negligence Must be Stricken
Defendant argues his conviction under section 246.3, subdivision (a), for
discharging a firearm with gross negligence (count 5) is a necessarily lesser included
offense of shooting at an occupied vehicle under section 246 (count 4) for which he was
also convicted, and the trial court erred in allowing both convictions to stand. The People
concede the trial court erred in this regard. We agree with the parties that defendant’s
conviction under section 246.3, subdivision (a), must be reversed as a lesser included
offense of section 246 for which defendant was also convicted.
17.
Although section 954 generally permits multiple convictions from a single act or
course of conduct, “[w]hen a defendant is found guilty of both a greater and a necessarily
lesser included offense arising out of the same act or course of conduct, and the evidence
supports the verdict on the greater offense, that conviction is controlling, and the
conviction of the lesser offense must be reversed.” (People v. Sanders (2012) 55 Cal.4th
731, 736.)3
There are two tests for determining whether one offense is necessarily included in
another: the “‘elements test’” and the “‘accusatory pleading test[.]’” (See People v.
Lopez (1998) 19 Cal.4th 282, 288.) When, as here, the defendant is convicted of multiple
alternative charged offenses, only the statutory elements are considered in deciding
whether the defendant may be convicted of both charged offenses. (People v. Reed
(2006) 38 Cal.4th 1224, 1231.) The elements test views only the statutory elements, not
the specific facts of a given case. (People v. Murphy (2007) 154 Cal.App.4th 979, 983–
984.) The question is whether all the statutory elements of the lesser offense are included
within those of the greater offense—i.e., “if a crime cannot be committed without also
committing a lesser offense, the latter is a necessarily included offense.” (People v.
Ramirez (2009) 45 Cal.4th 980, 985 (Ramirez).)
Section 246 provides that “[a]ny person who shall maliciously and willfully
discharge a firearm at an … occupied motor vehicle … is guilty of a felony .…”
Section 246.3, subdivision (a), provides that “any person who willfully discharges a
firearm in a grossly negligent manner which could result in injury or death to a person is
guilty of a public offense .…”
3 Section 954 provides in relevant part that “[a]n accusatory pleading may charge two or
more different offenses connected together in their commission, or different statements of the
same offense or two or more different offenses of the same class of crimes or offenses, under
separate counts .… The prosecution is not required to elect between the different offenses or
counts set forth in the accusatory pleading, but the defendant may be convicted of any number of
the offenses charged .…”
18.
As explained in Ramirez, section 246.3, subdivision (a), is a necessarily included
lesser offense of section 246. (Ramirez, supra, 45 Cal.4th at p. 990.) “Both offenses
require that the defendant willfully fire a gun. Although the mens rea requirements are
somewhat differently described, both are general intent crimes. The high probability of
human death or personal injury in section 246 is similar to, although greater than, the
formulation of likelihood in section 246.3[, subdivision ](a), which requires that injury or
death ‘could result.’ The only other difference between the two, and the basis for the
more serious treatment of a section 246 offense, is that the greater offense requires that an
inhabited dwelling or other specified object be within the defendant’s firing range. All
the elements of section 246.3[, subdivision ](a) are necessarily included in the more
stringent requirements of section 246.” (Ibid.)
Defendant was convicted under both section 246 and section 246.3,
subdivision (a), from the single act of shooting at Joseph’s occupied vehicle. Because
section 246.3, subdivision (a) (count 5), is a lesser included offense of section 246
(count 4), appellant may only be convicted of the greater offense: count 4. The
conviction for discharging a firearm with gross negligence under count 5 must be
reversed.
III. Section 654
A. Background
Defendant argues alternatively and additionally that his sentences under counts 4,
5 and 6 should have been stayed under section 654, not imposed concurrently. Defendant
maintains his conduct in shooting at Joseph’s car was part of defendant and K.F.’s
continuing argument and shooting at the car was incident to the same intent and objective
of venting defendant’s frustration and anger on K.F. Moreover, the multiple victim
exception to section 654 does not apply because defendant was convicted of three counts
of assault with a firearm, one count for each victim. As to count 6, for being a felon in
possession of a firearm, defendant argues he was required to have a weapon to have
19.
discharged it as related to his other offenses, so it was simply incidental to the objective
and commission of those offenses.
The People concede the sentence imposed under count 4 should have been stayed
under section 654, but dispute that the sentence imposed on count 6, felon in possession
of a firearm, should be stayed.4
B. Standard of Review
Section 654, subdivision (a), provides, “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” The statute “expressly prohibits
separate punishment for two crimes based on the same act, but has been interpreted to
also preclude multiple punishment for two or more crimes occurring within the same
course of conduct pursuant to a single intent.” (People v. Vargas (2014) 59 Cal.4th 635,
642; accord, People v. Harrison (1989) 48 Cal.3d 321, 335.) Determining “[w]hether a
defendant may be subjected to multiple punishment under section 654 requires a two-step
inquiry .…” (People v. Corpening (2016) 2 Cal.5th 307, 311.) “We first consider if the
different crimes were completed by a ‘single physical act.’ [Citation.] If so, the
defendant may not be punished more than once for that act. Only if we conclude that the
case involves more than a single act—i.e., a course of conduct—do we then consider
whether that course of conduct reflects a single ‘“intent and objective”’ or multiple
intents and objectives.” (Ibid.)
We review the trial court’s express or implied factual findings for substantial
evidence, and its conclusions of law de novo. (People v. Brents (2012) 53 Cal.4th 599,
618; People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5; People v. Moseley (2008) 164
4 The conviction under count 5 is to be stricken, and whether any sentence imposed for
count 5 should have been stayed under section 654 is not considered.
20.
Cal.App.4th 1598, 1603.) We “affirm the trial court’s ruling, if it is supported by
substantial evidence, on any valid ground.” (People v. Capistrano (2014) 59 Cal.4th 830,
886, fn. 14, overruled in part on another ground in People v. Hardy (2018) 5 Cal.5th 56,
103–104; accord, People v. Brents, supra, at p. 618.)
C. Analysis
The parties agree the sentence on count 4 should have been stayed under
section 654, and we concur. There is a multiple victim exception to section 654 that
allows separate punishment for each crime of violence against a different victim, even
though all crimes are part of an indivisible course of conduct with a single principle
objective. (People v. Cardenas (2015) 239 Cal.App.4th 220, 230.) The rule, “simply
stated, permits one unstayed sentence per victim of all the violent crimes the defendant
commits incidental to a single criminal intent. Where one person is the victim of both a
shooting at an occupied motor vehicle and a simultaneous assault, the trial court can
impose an unstayed sentence for one or the other, but not for both.” (People v. Garcia
(1995) 32 Cal.App.4th 1756, 1784.)
As noted by the People, defendant’s counts 1 through 5 all involved pointing
and/or shooting a rifle at Joseph’s occupied car. Counts 1 through 3 were for assault with
a firearm as to each victim; thus, by imposing prison terms on counts 2 and 3, the trial
court complied with the multiple victim exception. However, because defendant was
punished for his acts against each of the victims in counts 1 through 3, any imposed
sentence for count 4 (shooting at an occupied vehicle (§ 246)) should have been stayed
under section 654.
The parties dispute whether the sentence imposed for count 6 (felon in possession
of a weapon) should have been stayed under section 654. Defendant contends that
because his possession of the rifle was incidental to and simultaneous with the primary
offense of assault with a firearm, section 654 precluded the imposition of sentences on
both offenses.
21.
Whether illegal possession of a firearm constitutes a divisible transaction from the
offense in which that person employs the weapon depends on the facts and circumstances
of each individual case. (People v. Bradford (1976) 17 Cal.3d 8, 22 (Bradford).) Where
the evidence shows a possession distinctly antecedent and separate from the primary
offense, punishment on both crimes has been approved. (Ibid.) Where the evidence
shows a possession only in conjunction with the primary offense, then punishment for the
illegal possession of a firearm has been held to be improper where it is the lesser offense.
(Ibid.)
In other words, multiple punishment is improper where the evidence demonstrates
that it was fortuitous circumstances that put the firearm in the defendant’s hands only at
the instant of committing another offense. In this context, one court has reduced the
section 654 analysis to this legal principle: “[S]ection 654 is inapplicable when the
evidence shows that the defendant arrived at the scene of his or her primary crime already
in possession of the firearm.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1145
(Jones).) Thus, in Bradford, the defendant was stopped by an officer for speeding.
During the course of the stop, he wrested away the officer’s revolver and shot the officer.
(Bradford, supra, 17 Cal.3d at p. 13.) The California Supreme Court held that
punishment both for assault with a deadly weapon upon a peace officer and possession of
a firearm by an ex-felon was prohibited by section 654. (Bradford, supra, at pp. 22–23.)
However, multiple punishments are proper when the evidence shows the
defendant possessed the firearm before the crime with an independent intent. In Jones,
the defendant drove by a woman’s home while illegally possessing a firearm and then
shot at the woman’s home. (Jones, supra, 103 Cal.App.4th at pp. 1141–1142, 1147.)
The court held that Jones committed two separate acts in arming himself with a firearm
and then shooting at the inhabited dwelling. Similarly, in People v. Ratcliff (1990) 223
Cal.App.3d 1401 (Ratcliff), when the defendant committed two robberies with a firearm
within one and one-half hours, and a half hour after the robberies was still in possession
22.
of the firearm, section 654 did not apply. (Ratcliff, supra, at pp. 1412–1413.) The
defendant had already had the handgun in his possession at the time he arrived at the
scene of the first robbery, and his possession of the weapon was not merely simultaneous
with the robberies, but continued before, during and after those crimes. (Id. at p. 1413.)
This case is more like the situations in Ratcliff and Jones than the circumstances in
Bradford. There was evidence defendant already had possession of the weapon before
shooting at Joseph’s car. K.F. testified defendant had the weapon earlier in the morning
and shot the dog, and both K.F. and Joseph testified that when defendant used it to shoot
at Joseph’s car, he had retrieved it from the back of his own pickup truck. Defendant was
also recorded in jail as telling his brother the gun had been abandoned “at Giovanni’s.”
There was evidence defendant had taken possession of the gun well before the shooting
occurred, and he did not seize upon the weapon “fortuitously ‘at the instant of
committing another offense .…’” (Jones, supra, 103 Cal.App.4th at p. 1145, quoting
Ratcliff, supra, 223 Cal.App.3d at p. 1412.)
IV. Dueñas Claim5
The trial court imposed a $2,400 restitution fine under section 1202.4,
subdivision (b)(1), and the court also imposed a corresponding parole revocation fine
(§ 1202.45) in the same amount, which was stayed, a $40 court operations assessment per
count for a total of $240 (§ 1465.8, subd. (a)(1)), and a $30 criminal conviction
assessment per count for a total of $180 (Gov. Code, § 70373).
Relying on Dueñas, which was issued while this appeal was pending, defendant
contends his fees and fines should be stayed or stricken.
In Dueñas, the court held the assessments under Penal Code section 1465.8 and
Government Code section 70373 may be “imposed only on those with the means to pay
them[]” (Dueñas, supra, 30 Cal.App.5th at pp. 1168–1169), and “that although the trial
5 People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
23.
court is required by … section 1202.4 to impose a restitution fine, the court must stay the
execution of the fine until and unless the People demonstrate that the defendant has the
ability to pay” (id. at p. 1172).
We decline to reach defendant’s Dueñas arguments given remand of this matter
for resentencing. Defendant may address his inability-to-pay assertion pursuant to
Dueñas with the trial court in the first instance.
DISPOSITION
Defendant’s conviction for discharging a firearm with gross negligence (§ 246.3,
subd. (a)) under count 5 is reversed. The sentence imposed for shooting at an occupied
vehicle (§ 246) in count 4 must be stayed under section 654. The matter is remanded to
the trial court with directions to resentence defendant in accordance with this opinion. At
the time of resentencing, defendant may address his inability-to-pay argument under
Dueñas. In all other respects, the judgment is affirmed.
MEEHAN, J.
WE CONCUR:
FRANSON, Acting P.J.
SNAUFFER, J.
24.