Filed 5/13/14 P. v. Chavez CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B249453

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA377693)
         v.

JOSEPH ELIAS CHAVEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen
Kennedy, Judge. Affirmed.
         Willoughby & Associates, W. Anthony Willoughby and Vanessa M. Ames, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Jonathan J. Kline, Shawn
McGahey Webb and Esther P. Kim, Deputy Attorneys General, for Plaintiff and
Respondent.
       Appellant Joseph Elias Chavez was convicted, following a jury trial, of one count
of assault with a firearm on John Doe in violation of Penal Code1 section 245,
subdivision (a)(2) (count 2) and two counts of shooting at an occupied vehicle in
violation of section 246 (counts 3 and 8).2 The jury found true the allegation that a
principal was armed with a firearm in the commission of the assault within the meaning
of section 12022, subdivision (a)(1). The trial court sentenced appellant to the upper term
of seven years for the count 3 shooting conviction, plus the mid-term of 20 months for
the count 8 shooting conviction, for a total term of eight years, eight months in state
prison. the court stayed sentence on the count 2 assault conviction pursuant to section
654.
       Appellant appeals from the judgment of conviction, contending there is
insufficient evidence to support his conviction and further contending the prosecutor
improperly argued a theory of guilt which was inconsistent with the theory offered at the
trial of co-defendant Daniel Gonzalez. Appellant also contends the trial court relied on
improper factors in imposing the upper term on count 3. We affirm the judgment of
conviction.


                                           Facts
       On October 9, 2010, about 4:00 p.m., Larry Hooks was stopped at a traffic light at
the intersection of Figueroa Street and Gage Avenue. He heard two to four gunshots,
looked in his rear view mirror and saw a Ford F-150 followed by a black Jeep Cherokee,
both traveling at a high rate of speed. The vehicles passed Hooks’ vehicle and ran the red

1
       All further statutory references are to the Penal Code.
2
       Appellant was charged with the attempted murder of John Doe, assault with a
firearm on John Doe and shooting at an occupied vehicle in counts 1 through 3.
Appellant was charged with assault with a firearm on Larry Hooks in count 5 and
shooting at an occupied vehicle in count 8. The first jury impaneled to try appellant’s
case could not reach a unanimous decision on any count, and the trial court declared a
mistrial. The second jury convicted appellant of the charges in counts 2, 3 and 8, and
acquitted him on the other counts.

                                              2
light at the intersection at speeds of 60 to 80 miles per hour. There were two African-
American males in the F-150 and two Hispanic males in the Jeep.
       As the vehicles drove away, Hooks saw the passenger of the Jeep lean out the
window with his arm extended toward the F-150. Hooks heard two to four gunshots. He
called 911.
       Oscar Figueroa (“Oscar F.”) was in his auto mechanic shop at the corner of 54th
and Figueroa Streets when he heard a loud crash. He looked toward the intersection and
saw that a white Ford truck had caused another white truck to hit a traffic light pole. The
Ford, driven by a male, went eastbound on 54th Street. It was followed by a dark brown
SUV. There were two Hispanic males in the SUV. The driver was shorter than the
passenger. The passenger leaned out the window with a gun in his hand and fired toward
the Ford.
       Miguel Magallanes, who lived on 54th Street near San Pedro Street, heard a crash
followed by a gunshot. He soon heard a man screaming, “Murder, murder.” Magallanes
looked out his door and saw an African-American male running past his house. Then a
Jeep Cherokee drove by his house very rapidly. It looked to Magallanes like the Jeep
was following the man. When Magallanes looked outside a few minutes later, he saw a
white F-150 had crashed at the corner of 54th and San Pedro Streets.
       A recording from a security camera at the intersection showed the F-150 crashing
into a pole. A man got out of the F-150 and began running. (This man was apparently
never identified and is referred to in the pleadings as John Doe.) The recording then
showed the Jeep arriving at the crash. It stopped and a man got out of the passenger seat
and began chasing the man from the F-150. The Jeep made a U-turn and drove back
along 54th Street.
       911 operators received eleven calls about the shootings. In one call, a woman
stated that she had witnessed a black Jeep Cherokee driving close behind another vehicle
causing it to crash. There were Hispanic males in the Jeep and a single African-
American male driving the vehicle that crashed. The African-American male got out of
his vehicle and started running. The men in the Jeep got out guns and drove around,

                                             3
apparently looking for the driver. Another 911 caller reported gunshots at 54th and Main
Streets. The shots were fired by two men in black Jeep Cherokee. They were firing at an
African-American man.
         Los Angeles Police Department Officer Gregory Sovick and his partner went to
the intersection of 54th and Figueroa Streets where the first crash had occurred. Oscar F.
approached Officer Sovick and spoke with him. Hooks, who had continued driving on
Figueroa Street after the shooting incident, had stopped when he reached the crash at 54th
Street, believing it was related to the earlier shooting. He spoke with a police officer
there.
         Officer Sovick and his partner then began to drive toward 54th and San Pedro
Streets. While driving, they heard from a police airship that a black Jeep Cherokee was
in the vicinity of 54th Street and Broadway. As they neared the vicinity of 54th Street
and Broadway, they saw the Jeep. Officer Timothy Jang and his partner saw the Jeep at
about the same time. The four officers stopped the Jeep. There were two occupants in
the Jeep. Appellant got out of the front passenger seat. The other occupant of the Jeep
was Daniel Gonzalez, aka Edward Luna.
         Hooks, too, drove to the vicinity of 54th Street and Broadway. He saw that police
had stopped the Jeep. Hooks spoke with police, who asked him if recognized the Jeep or
the two men. Hooks identified the Jeep, but could not identify the men. Hooks told
officers that if the two men had been in the Jeep, they were the ones doing the shooting.
Hooks then drove to 54th and San Pedro Streets, saw the crashed F-150 and then returned
to 54th Street and Broadway. There, he showed Officer Sovick a bullet hole in his
Explorer just above the brake light.
         Officer Sovik brought Oscar F. to 54th Street and Broadway to view the two
occupants of the Jeep. Oscar F. identified the Jeep as the SUV he had seen chasing the
Ford truck. He identified appellant as the driver of the Jeep and Gonzalez as the
passenger who leaned out the window with a gun. Oscar F. later told police he was not
sure if the SUV he saw was black or if it was a Jeep Cherokee.



                                              4
       Police arrested appellant and Gonzalez. At that time, appellant was five feet, five
inches tall and weighed 190 pounds. Gonzalez was five feet, nine inches tall and
weighed 210 pounds. At the police station, appellant asked Officer Sovick if he was
going to get into trouble for the hit and run and also asked if anyone had been hurt.
       Police searched the Jeep, but found no weapons, ammunition or shell casings.
       Gonzalez was tried separately from appellant. Hooks was at witness at Gonzalez’s
trial. He was asked if he had told police officers that Gonzalez was the shooter. He
replied, “yes, sir.” When questioned about this testimony at appellant’s trial, Hooks
explained that he had told the officers that he could not tell appellant and Gonzalez apart
because he did not see their faces. Hooks repeated that it was the passenger who had
done the shooting. He identified Gonzalez as the shooter because of body type and
because “it had come to [his] knowledge that he was the one leaning out.”
       Oscar F. also testified at appellant’s trial. He stated that the SUV he saw was not a
Jeep Cherokee. He also testified that the men in the field show-up looked “most similar”
to the men in the SUV.
       Appellant’s counsel asserted in his opening statement that appellant and his cousin
Gonzalez stopped at business near Florence Avenue and Figueroa Street. Gonzalez went
inside the business and inadvertently interrupted a robbery in progress. The robbers took
$6,000 from Gonzalez and fled in an F-150 truck. Gonzalez got into his vehicle and
pursued the robbers to recover his money. Other victims of the robbery also gave chase.
Appellant did not present any evidence to support this theory, however. He did not
testify and did not call any witnesses.




                                             5
                                        Discussion
       1. Sufficiency of the evidence
       Appellant contends there is insufficient evidence to support his convictions for
assault with a firearm and shooting at an occupied vehicle as either a principal or an aider
and abettor.
       “In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—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. [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance allegations.
[Citation.] [I]f the circumstances reasonably justify the jury’s findings, the judgment
may not be reversed simply because the circumstances might also reasonably be
reconciled with a contrary finding. [Citation.]” (People v. Nelson (2011) 51 Cal.4th 198,
210 [internal quotation marks omitted].)
       In his opening brief, appellant contends the jury found he “did not possess a
firearm at any time during the commission of” the charged crimes and so he could not
have been convicted as the actual perpetrator. The jury made no such specific finding.
The jury was asked to find if a principal was armed in the commission of the assault, and
found that allegation true.3 The jury was not asked to consider an allegation that
appellant was personally armed in the commission of the assault.
       In his reply brief, appellant contends there is no direct or circumstantial evidence
at all proving he fired the gun. Appellant is mistaken.

3
        Section 12022, subdivision (a)(1), the section upon which the allegation was
based, provides that it applies “to a person who is a principal in the commission or
attempted commission of a felony or attempted felony if one or more of the principals is
armed with a firearm, whether or not the person is personally armed with a firearm.”
(Italics added.)

                                             6
       Both Hooks and Oscar F. testified that the passenger of the SUV leaned out the
window and fired a gun. When the Jeep Cherokee was stopped by police, both officers
saw appellant get out of the front passenger seat. This supports a reasonable inference
that appellant was the shooter and is substantial evidence supporting the jury’s verdict.
       This is true even though each man’s testimony contained contradictions.
“Conflicts and even testimony which is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403; see In
re Robert V. (1982) 132 Cal.App.3d 815, 821 [“The testimony of a single witness is
sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent
or false as to other portions.”].)
       As the prosecutor acknowledged, the evidence was conflicting on whether
appellant was the passenger-shooter or driver. There is substantial evidence to show that
if appellant was the driver, he aided and abetted the shootings.
       “An aider and abettor is one who aids, promotes, encourages or instigates a crime
with knowledge of the unlawful purpose of the perpetrator and intent to assist in the
commission of the crime. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1158, citing
People v. Beeman (1984) 35 Cal.3d 547, 560.) Factors that may be considered when
determining whether a defendant aided and abetted a crime include his presence at the
crime scene, his companionship with the actual perpetrator, and his conduct before and
after the offense. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) “Whether a person has
aided and abetted in the commission of a crime is a question of fact, and on appeal all
conflicts in the evidence and attendant reasonable inferences are resolved in favor of the
judgment.” (Ibid.)
       Here, assuming appellant was the driver of the Jeep, the Jeep had already begun
chasing the F-150 at a high rate of speed and shots had been fired before the two vehicles
passed Hooks’ vehicle. After the vehicles passed Hooks, more shots were fired from the
Jeep. The F-150 caused another truck to crash. The Jeep continued to pursue the F-150

                                               7
at a high rate of speed and additional shots were fired from the Jeep. After the F-150
crashed into a pole and the driver fled on foot, the driver of the Jeep stopped to let out the
passenger, who then chased the F-150’s driver on foot. Thus, the driver drove the Jeep in
a manner that facilitated the passenger’s shooting at the occupant of the F-150.
       This is sufficient to support a reasonable inference that appellant intended to aid
and abet Gonzalez in the shootings. (In re Jose D. (1990) 219 Cal.App.3d 582, 585
[substantial evidence supported the defendant’s murder and assault conviction on aiding
and abetting theory where evidence showed that he drove a car and deliberately
maneuvered it so that the passenger could point a gun at the victims].)
       Relying on Rosemond v. U.S. (2014) __ U.S. __ [134 S.Ct. 1240, __L.Ed.2d __],
appellant contends the People were required to show that he knew before the chase began
that Gonzalez had a gun, so that appellant had the opportunity to decline to participate in
the shootings. Rosemond involves a federal statute increasing the penalty for a drug
offense when one of the participants is armed, and so is factually distinguishable.
Further, the reasoning of Rosemond does not assist appellant. As the Court noted in
Rosemond, “Of course, if a defendant continues to participate in a crime after a gun was
displayed or used by a confederate, the jury can permissibly infer from his failure to
object or withdraw that he had [advance] knowledge. In any criminal case, after all, the
factfinder can draw inferences about a defendant’s intent based on all the facts and
circumstances of a crime’s commission.” (Id. at p. 1250 fn. 9.) That was the case here.


       2. Inconsistent prosecution theories
       Appellant argues the prosecutor committed prejudicial prosecutorial misconduct
when he presented the theory in this case that appellant may have been the driver or the
shooter after arguing in Gonzalez’s trial that Gonzalez was the shooter.
       A prosecutor commits misconduct and violates a defendant’s right to due process
if, without a good faith justification, he or she “attribute[s] to two defendants, in separate
trials, a criminal act only one defendant could have committed.” (In re Sakarias (2005)
35 Cal.4th 140, 155-156.) There is no due process violation if there is a good faith

                                              8
justification for the use of inconsistent theories, such as a significant change in the
available evidence between trials. (Id. at pp. 159-160, 162.)
       Some inconsistencies in theories are permissible. As our Supreme Court has
found, there is no misconduct in arguing inconsistent theories which are “fundamentally
consistent because any variation did not concern a fact used to convict the defendant or
increase his or her punishment. (See Nguyen v. Lindsey (9th Cir. 2000) 232 F.3d 1236,
1240-1241 [variation in prosecutorial argument as to which of two gangs fired the first
shot in a gun battle that killed a bystander not significant where prosecutor at both trials
pursued the same ‘underlying theory’ that all participants in the gang battle were equally
responsible for the death].)” (In re Sakarias, supra, 35 Cal.4th at p. 161.) In Nguyen,
“the prosecutor made different arguments at each trial [as to who fired the first shot], but
it is also true that these arguments were consistent with the evidence actually adduced at
each trial.” (Nguyen v. Lindsey, supra, 232 F.3d at pp. 1240-1241.)
       On the record before us on appeal, there is no basis to find prosecutorial
misconduct. There are no facts in the record before us concerning the prosecutor’s
arguments or theories in Gonzalez’s trial.4 For that reason, appellant’s claim fails.
Further, even if the prosecutor’s theory in Gonzalez’s trial was that Gonzalez was the
shooter, appellant has not shown prosecutorial misconduct.5
       The record in this case shows that Hooks changed his testimony between trials. At
appellant’s trial, Hooks was asked, “Did you, in Mr. [Gonzalez]’s trial, identify Mr.
[Gonzalez] as the one leaning out the passenger window doing the shooting?” Hooks
replied, “I don’t think that’s what I testified to, sir.” Hooks was then impeached with his
testimony from Gonzalez’s trial, in which he was asked, “[D]id you identify to the police
officers that the defendant, Mr. [Gonzalez] – who was in court – was the one leaning
outside the passenger window shooting?” Hooks replied, “Yes, sir.” When asked if he


4
       The transcript of Gonzalez’s trial is not part of the record on appeal in this case.
5
       The parties in appellant’s trial and on this appeal appear to agree that the People’s
theory in Gonzalez’s trial was that Gonzalez was the shooter.

                                              9
remembered this testimony, Hooks replied, “Yeah, but that was after it had come to my
knowledge that he was the one leaning out, sir. [¶] I didn’t know either one of these
gentleman was driving or the other one was the passenger.”
         Thus, at appellant’s trial, Hooks called into doubt his prior testimony at
Gonzalez’s trial and testified that he could only say that whoever was the passenger was
the shooter. Given that appellant was the passenger when the Jeep was stopped, Hooks
testimony that the passenger was the shooter created an inference that appellant was the
shooter.
         There was other evidence showing that appellant was the driver, primarily the
testimony of Oscar F., but it was equivocal.6 Given Hooks’ change in testimony and the
equivocal nature of Oscar F.’s testimony, appellant has not shown bad faith on the part of
the prosecutor in arguing that appellant was either the driver or the shooter, but was liable
in either case. The prosecutor’s argument is consistent with the evidence at appellant’s
trial.
         To the extent that appellant claims the prosecutor “must” have recognized Hooks’
testimony at this trial was false once it was given and so should not have not relied on it
in any way, we do not agree. The jury was aware of Hooks’ change in testimony, and it
was the jury’s task to decide Hooks’ credibility.
         We note that both parties make factual assertions which are not supported by the
record. Appellant, for example, claims that Judge Ohta told the prosecutor in appellant’s
first trial that it was improper to argue that appellant was the shooter. Appellant also
claims the prosecutor “must have known” before trial that Hooks was going to change his
testimony. For its part, respondent claims that Gonzalez testified at his own trial that
appellant was the shooter. We do not consider these unsupported factual assertions.

6
       Officer Sovick testified that Oscar F. identified Gonzalez to police as the
passenger who leaned out of the window with a gun and appellant as the driver. Officer
Sovick also testified that Oscar F. told police that the Jeep was the SUV he saw chasing
the truck. Oscar’s trial testimony was much less definite. He testified appellant and
Gonzalez “look[ed] most similar” to the men in the SUV. He also testified that he told
police that the Jeep was not the car chasing the truck.

                                               10
Claims which require a consideration of facts outside the appellate record are more
appropriately raised in a petition for writ of habeas corpus.


       3. Upper term
       Appellant was convicted of one count of assault on John Doe and two counts of
shooting at an occupied vehicle. No victims were named in the vehicle shooting counts.
The grouping of the charges in the information and the prosecution’s arguments show
that the count 3 vehicle shooting charged was intended to refer to John Doe’s vehicle and
the count 8 charge to Hooks’ vehicle.
       The court imposed the high term on the count 8 conviction “because of the nature
of the violent conduct of the defendant, the fact that the victims were vulnerable and the
fact that defendant was on misdemeanor probation at the time of the offense.” The court
imposed the mid-term for count 3 consecutively to count 8 “because of the fact that this
was a separate victim and a separate shooting.”
       Appellant contends the trial court erred in making these sentencing choices. He
contends he was not on probation at the time of the offenses. He further argues the only
identified victim was the John Doe on the count 2 assault conviction, and so the victim
vulnerability and separate victim factors were improper.
       Respondent contends appellant has forfeited these claims by failing to object in the
trial court. (People v. Scott (1994) 9 Cal.4th 331, 353.)
       Appellant has preserved his claims. The court did not err in its sentencing choices.


       a. Victim-related factors
       At the sentencing hearing, appellant argued that there was no known victim in the
counts 3 and 8 shootings at an occupied vehicle offenses, and the only known victim was
on the count 2 assault charge. This is sufficient to preserve appellant’s claim that the
court erred in imposing consecutive sentences on the basis of separate victims. It is also
sufficient to preserve appellant’s claim that the victim vulnerability factor was not
applicable and so the high term was not warranted for count 8.

                                             11
       i. Number of victims
       Appellant claims that because there were no victims listed in the information for
the count 3 and count 8 charges of shooting at an occupied vehicle, there were no victims
in those counts. The shootings occurred while the vehicles were being driven. Clearly,
there was a person in each vehicle. Thus, regardless of their identities, there were two
different victims on the two different counts. The trial court properly imposed
consecutive sentences. (See People v. Coleman (1991) 53 Cal.3d 949, 953-954 [trial
court has discretion to impose consecutive sentences where defendant committed separate
crimes against multiple victims]; § 1170.1, subd. (a) [subordinate term for consecutive
offense shall consist of one-third of the midterm for the subordinate offense].)


       ii. Identity of victims
       Appellant contends that even if there were victims on the shooting at an occupied
vehicle charge, the identity of the victim on the count 8 charge was unknown, and so the
court could not properly find the victim vulnerable.
       The court understood the count 8 charge to refer to Hooks’ vehicle and this is
consistent with the pleadings, evidence and argument of the prosecutor. Thus, the trial
court properly viewed Hooks as the victim of the count 8 offense.
       Appellant argues that the jury did not find any of Hooks’ testimony credible and
so must have found the count 8 vehicle belonged to an unknown third party, presumably
the white truck which crashed into a pole near the intersection of 54th Street and
Figueroa Avenue. He contends that since this truck belonged to an unknown third party,
the court’s reliance on the vulnerable victim factor unfounded. There is no way to know
if the jury found Hooks credible in whole, part or not at all. Further, appellant points to
no evidence that shots were fired at the white truck involved in the Figueroa crash.
       Even assuming appellant’s contentions were correct, those contentions would not
invalidate the court’s reliance on the vulnerable victim factor. The driver of the white
truck was in the same position as Hooks. Both were innocent bystanders who happened
to be driving on or across Figueroa at the same time the Jeep was chasing the F-150

                                             12
truck. Hooks was shot at without any warning or provocation, and the same appears true
for the driver of the white truck. Neither person had any apparent ability to protect
himself or herself. Thus, she or he was a vulnerable victim. (See People v. Eades (1979)
95 Cal.App.3d 688, 690 [unsuspecting police officer/driver of vehicle who was shot by
back seat passenger without warning, motive of provocation could not protect himself
and was a vulnerable victim so as to warrant imposition of an aggravated sentence].)7
The trial court properly relied on the victim vulnerability factor in sentencing appellant to
the upper term on count 8.


       b. Probation factor
       When the court asked the parties about the prosecutor’s statement in his
sentencing memorandum that appellant was on probation, appellant’s counsel stated that
he was not on probation. This was sufficient to preserve the issue for appeal.
       The probation report shows that appellant was placed on 24 months of probation
in 2007. Probation thus would have ended in 2009, a year before the crimes in this case
were committed. Respondent acknowledges this on appeal. Thus, the probation factor
was not valid.
       We find the trial court’s consideration of the invalid probation factor harmless.
Two valid aggravating factors remain to support the upper term. A single aggravating
factor is sufficient. (People v. Osband (1996) 13 Cal.4th 622, 732.)
       This is not a case where the trial court placed heavy emphasis on a factor later
shown to be invalid. The court’s comments show that it placed the most emphasis on
“the really dangerous conduct” by appellant. The Court pointed out that the crimes took
place on city streets with cars “breaking traffic laws . . . and shooting” and found “[t]his

7
       To the extent that appellant contends that vulnerable victims are limited to the
“elderly, very young or disabled, or otherwise obviously and indisputably vulnerable,” he
is mistaken. Appellant takes this language from People v. Sandoval (2007) 41 Cal.4th
825, 842. While the listed victims are vulnerable, they are not the only vulnerable
victims. The Court in Sandoval was not limiting vulnerable victims to those described in
appellant’s quote. (Ibid.)

                                             13
is particularly dangerous behavior on the part of the defendant and his companion.” The
court also found “And the other victims in this case, Mr. Hooks and just anybody that
was on the street, were really totally vulnerable to what was going on because they
weren’t involved.” The court pointed out that while no one was injured and the damages
was relatively minor, “it could have been much more serious.” These factors remain
valid. Thus, there is no reasonable probability the court would sentence appellant to a
lower term in the absence of the probation aggravating factor.


                                           Disposition
      The judgment of conviction is affirmed.


                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                           MINK, J.*



We concur:



MOSK, ACTING P. J.



KRIEGLER, J.




*
      Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

                                            14
