Filed 10/28/13 P. v. Alvarez 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065502
         Plaintiff and Respondent,
                                                                        (Stanislaus Super. Ct. No. 1439161)
                   v.

PEDRO ALVAREZ ALVAREZ,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna
Reeves, Judge.
         Rex Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert
Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

         *   Before Cornell, Acting P.J., Poochigian, J. and Detjen, J.
                                              FACTS
          Background
          Defendant was charged with battery on a peace officer (count I – Pen. Code,1
§ 243, subd. (c)(2)); three counts of assault with a semiautomatic weapon (counts II, III
and IV - § 245, subd. (b)); negligent discharge of a firearm (count V - § 246.3, subd. (a));
and three counts of felony resisting arrest (counts VI, VII, and VIII - § 69). As to the
assault with a semiautomatic weapon counts, it was alleged (1) that defendant personally
used a firearm (§ 12022.5, subd. (a)); (2) that defendant had suffered a prior serious
felony conviction as described in section 667, subdivision (a). As to all counts, it was
alleged defendant suffered a prior serious felony conviction as described in section 667,
subdivision (d).
          The jury returned verdicts of guilty as to the counts of assault with a
semiautomatic weapon and negligent discharge of a firearm (counts II, III, IV, and V).
The jury found the firearm use allegations on counts II, III and IV to be true. (§ 12022.5,
subd. (a).) The jury returned verdicts of not guilty as to the battery on a peace officer and
felony resisting arrest counts (counts I, VI, VII and VIII). The jury also returned verdicts
of not guilty as to the lesser included offenses of those counts, with one exception. As to
resisting a peace officer (§ 148, subd. (a)(1)), a lesser included offense of count VII
(§ 69), the jury was unable to reach a verdict and a mistrial was declared.
          The court found the prior convictions under section 667, subdivisions (a) and (d)
to be true. The court sentenced defendant to a total prison term of 22 years 4 months. On
count II, defendant was sentenced to the midterm of six years, doubled pursuant to
section 667, subdivision (d), plus four years on the firearm use enhancement. The same


          1   All undesignated statutory references are to the Penal Code unless otherwise
stated.



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sentence was rendered on counts III and IV. On count V, defendant was sentenced to one
year four months, calculated as follows: one-third of the midterm of 16 months, doubled
pursuant to section 667, subdivision (d).
       Trial Evidence
              Testimony of Michael Washington
       Michael Washington testified at trial. At 5:30 p.m. on December 2, 2011, he was
at Kano‟s Smoke Shop. When he entered the store, there were three to four other people
in the store. A clerk was behind the counter, speaking with defendant about knives on a
shelf. Washington saw both the clerk and defendant “getting real irritable.” Defendant
asked for a “certain amount” of “Zig-Zags.” Defendant was speaking in broken English
and was becoming “irritable” because the clerk did not understand him.
       “Someone” walked out of the store and defendant “got nervous and pulled out a
pistol.” He had retrieved the pistol from his waist. Defendant pulled the rack of the gun
back (i.e., he “cock[ed] it back.”) The person who was leaving the store began to run.
       Defendant told everyone not to move or he would kill them or shoot them. The
gun was pointed “[a]t all of us that was [sic] inside the shop,” which included the clerk,
Washington and another male customer. Defendant turned “his attention to the clerk and
said something about money or something.” Seeing his chance to escape, Washington
ran out the door to a shop across the street.
       The prosecutor asked Washington, “And before you left the store had the
defendant shot the gun?” Washington responded, “I have no clue. I was outside of the
shop, I guess, when all of that happened.”
       Washington called 9-1-1. The police arrived “pretty quickly” thereafter.
              Testimony of Officer Joseph Pimentel
       Officer Joseph Pimentel heard a radio call and responded to Kano‟s Smoke Shop.
As Officer Pimentel approached the building, he came near to Officer John Moss. He did



                                                3.
not have time to speak to Officer Moss. Defendant came through the doorway2 holding a
plastic bag. He placed the bag onto a chair to his right. Officer Pimentel told defendant
to “put his hands up.” Officer Pimentel testified: “After placing the bag on the chair,
[defendant] slowly stood straight up and brought his hand up to about chest level and
placed his palms out towards me.”
       The officers ordered defendant onto the ground, and he complied. Another
officer, Officer Castro, helped Officer Pimentel handcuff defendant. No gun had been
recovered yet. Officer Pimentel began to roll defendant onto his side to search him.
Defendant then brought his knees up and forcefully rolled all of his weight onto his back,
pushing Officer Pimentel back. Officer Pimentel laid on top of him to keep control of
defendant. Officer Pimentel tried to roll defendant onto his stomach, but “he wouldn‟t
go.” Officer Pimentel drew his Taser and applied a drive stun to defendant. The first
application had no effect, so Officer Pimentel moved the Taser up and applied it to
defendant‟s upper chest area. This second application immobilized defendant.
       Subsequently, Officer Moss asked defendant where the gun was, and “got no
answer.” Officer Moss bent down in front of defendant, reached to the front of defendant
and stood up holding a two-tone semiautomatic pistol.
                Testimony of Officer John Moss
       Officer John Moss received a call that there had been an armed robbery at Kano‟s
Smoke Shop, which was located “[c]lose to the DMV.” He pulled into the parking lot of
a fast food restaurant “next to” the smoke shop. !
       Officer Moss was the first officer on the scene. As he was walking up to the shop,
defendant came out, standing in the “threshold of the doorway.” Defendant had a plastic
bag in his arms with two large knives protruding. Officer Moss told him to drop the bag


       2   Presumably this testimony refers to the doorway of Kano‟s Smoke Shop.



                                             4.
and get on the ground. Defendant complied with both commands. The bag contained
two large swords, money and packaging for tobacco or cigarettes.3
       Officer Moss had been told “there were shots fired in the store.” Officer Moss,
accompanied by other police officers, entered the store. Officer Moss could smell gun
powder inside the store, and there was a bullet hole in the ceiling. Nobody was inside the
store, and there was no cash in the cash register. Officer Moss did not find a firearm in
the store.
       Officer Moss exited the store and approached defendant. He lifted defendant‟s
sweater and found a pistol in his waistband. A shell casing was stuck in the slide of the
firearm. The firearm was a semiautomatic weapon.
       Testimony of other officers
       Officer Martin Lemus testified to largely the same facts as Officer Moss. Officer
Shane Castro testified regarding the chain of custody of the firearm found on defendant‟s
person. Officer Dwight Miller testified that he interviewed Michael Washington and
Lounny Manivong. Lounny Manivong said he was the clerk of the store.
                                      DISCUSSION
SUBSTANTIAL EVIDENCE SUPPORTED THE JURY’S VERDICT ON COUNT
           V, NEGLIGENT DISCHARGE OF A FIREARM
       Defendant contends there was a lack of substantial evidence to support his
conviction for violating section 246.3, subdivision (a). We disagree.
       Section 246.3, subdivision (a) punishes “any person who willfully discharges a
firearm in a grossly negligent manner which could result in injury or death to a
person .…” (§ 246.3, subd. (a).) “[T]he elements of section 246.3 (a) are: „(1) the

       3  As to the packaging for tobacco or cigarettes, Officer Moss testified, “… I think
there was packaging for tobacco or cigarettes.” (Italics added.) Later, Officer Moss
testified regarding People‟s exhibit 5, which depicted tobacco wrapping (i.e., Zig-Zags)
in the bag.



                                             5.
defendant unlawfully discharged a firearm; (2) the defendant did so intentionally; (3) the
defendant did so in a grossly negligent manner which could result in the injury or death
of a person.‟[Citations.]” (People v. Ramirez (2009) 45 Cal.4th 980, 986 (Ramirez).)
       Defendant contends there was a lack of substantial evidence adduced at trial as to
the third element, which is referred to as the “risk element.” (E.g., Ramirez, supra, 45
Cal.4th at p. 987.)
       Important here, the California Supreme Court explained the risk element of section
246.3, subdivision (a) in Ramirez, supra, 45 Cal.4th 980:

       “The risk element of section 246.3 was included to ensure that the statute
       would not apply to hunting or target practice in remote locations .… The
       risk element requires the likely presence of people in the area, not the
       actual presence of a specific person. Requiring the prosecution to prove a
       particular person was present is impractical and was never intended.” (Id.
       at p. 987, italics added.)
       Defendant contends that no evidence showed “the likely presence of people in the
vicinity when appellant fired the gun.” Defendant points to the fact that “it cannot be
determined when the clerk and customer left the store.” This argument falls on the wrong
side of the distinction drawn by the Supreme Court in Ramirez. “The risk element
requires the likely presence of people in the area, not the actual presence of a specific
person.” (Ramirez, supra, 45 Cal.4th at p. 987.) Defendant‟s fixation on the lack of
evidence regarding the location of two specific people (i.e., the clerk and the male
customer), is misplaced.4 In enacting section 246.3, “the Legislature intended no

       4 While the prosecution was not obligated to prove it, there was substantial
evidence to support an inference that the clerk and the male customer were “likely” “in
the area” when the shot was fired. Washington testified that when defendant pointed the
gun at him, there were at least three individuals in the store besides defendant:
Washington, the clerk and another male customer. Then Washington ran and called 9-1-
1 once he had gotten to a store across the street. Police arrived “pretty quick.” Officer
Moss, the first officer on the scene, was less than one mile away when he received the
call. Officer Moss walked up to the store, and defendant was standing in the doorway of


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requirement that an actual person be in proximity to the grossly negligent shooting.…”
(Ramirez, supra, 45 Cal.4th at pp. 986-987.) The risk element was included to ensure
that the statute would not apply to hunting or target practice in remote locations. (Id. at
p. 987.) Thus, the relevant body of evidence is that which speaks to the public nature of
the smoke shop and its surroundings. The evidence that the smoke shop was open to
customers at the time of the shooting, was located close to the DMV, and “next to” a fast
food restaurant, all suggest the likely presence of people in the area. This is all the risk
element requires. (Id. at pp. 986-987.)
       Defendant also argues that he “fired a gun into a ceiling where there was no
likelihood of the bullet striking a person.” Just because defendant fired the gun into a
ceiling does not mean there was no likelihood of the bullet striking someone.
Anticipating this response, defendant argues that there was “no evidence regarding the
composition of the ceiling, such that one could reasonably conclude there was a risk of
ricochet which might endanger a person.” This argument misses the mark. Discharging
firearms where people are likely present is dangerous precisely because there are so many
variables affecting whether someone will be injured or killed. (Cf. Ramirez, supra, 45
Cal.4th at p. 990 [“No one knows where shots fired recklessly into the air are likely to
land.”].) Evidence regarding the composition of physical obstacles in the trajectory path
of the bullet goes to whether any particular individual was actually endangered. But that
is not what the prosecution was required to prove here. (Id. at p. 987.) All that must be

the shop. By that point, Officer Moss had already been told that a shot had been fired in
the store. Thus there was substantial evidence that the shot had been fired within the time
it took for Washington to run across the street, call 9-1-1, and the police to arrive
“quick[ly]” from less than one mile away. This does not conclusively establish the
presence of the clerk or the male customer in the store when the shot was fired, but it
does support an inference that one or both of them were “likely” present “in the area.”
All section 246.3 requires is the likely presence of people in the area of the shot fired, not
the actual presence of any specific individuals. (Ramirez, supra, 45 Cal.4th at p. 987.)




                                              7.
proven is that defendant intentionally and unlawfully discharged a firearm in an area
where people were likely present. (Id. at pp. 986-987.) There was substantial evidence
supporting the jury‟s conclusion that the prosecution met this burden.
 NO SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S RULING
  THAT SECTION 654 DID NOT PRECLUDE PUNISHMENT ON COUNT V
          Defendant also contends the sentencing court‟s finding that section 654 did not
apply to the sentence on count V was not supported by substantial evidence. We agree.
          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.…” (§ 654, subd. (a).) Pursuant to
decisional law, section 654 also applies “where a course of conduct violate[s] more than
one statute .…” (Neal v. State (1960) 55 Cal.2d 11, 19 overruled in part by People v.
Correa (2012) 54 Cal.4th 331.) “ „Whether a course of criminal conduct is divisible and
therefore gives rise to more than one act within the meaning of section 654 depends on
the intent and objective of the actor. If all of the offenses were incident to one objective,
the defendant may be punished for any one of such offenses but not for more than one.‟ ”
(People v. Correa, supra, 54 Cal.4th at p. 336, citing Neal v. State, supra, 55 Cal.2d at
p. 19.)
          “As a general rule, the sentencing court determines the defendant‟s „intent and
objective‟ under section 654.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 268.)
That determination must be sustained on appeal if supported by substantial evidence.
(See People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Ortiz (2012) 208
Cal.App.4th 1354, 1378.) “We review the trial court‟s determination in the light most
favorable to the respondent and presume the existence of every fact the trial court could
reasonably deduce from the evidence. [Citation.]” (People v. Jones (2002) 103
Cal.App.4th 1139, 1143.)


                                               8.
       The sentencing court ruled on the section 654 issue as follows:

               “However, on Count V, I do not think that its 654 [sic] because the
       assault with a firearm, semi-automatic firearm, was completed when he
       pointed the gun at all three individuals, but then he took the additional step
       of firing it, which I think increased the danger for the occupants and was
       done not to further the robbery that he was attempting to commit, but in
       order to terrorize the individuals.”
       Thus, the trial court found that defendant did not fire the gun to further the
robbery, but rather to terrorize the individuals in the store. We conclude that this finding
is not supported by substantial evidence.
       To permit multiple punishments, “ „there must be evidence to support a finding the
defendant formed a separate intent and objective for each offense for which he was
sentenced. [Citation.]‟ [Citation.]” (People v. Coleman (1989) 48 Cal.3d 112, 162,
italics added.) While there was some evidence regarding defendant‟s intent in assaulting
the victims, there was no substantial evidence that he formed a separate intent and
objective in firing the gun. It is entirely possible that, as the sentencing court concluded,
defendant fired the gun to terrorize the victims rather than to further the robbery. But
there was no evidence suggesting this was the case.5 Thus, it was equally possible that
defendant fired the gun and assaulted the victims pursuant to the same objective: to
further the robbery. Because there is no substantial evidence supporting the finding that
defendant formed a separate intent and objective in discharging the firearm, that finding
cannot survive on appeal.
       The People contend “the assaults on the three occupants in the smoke shop had
been completed before [defendant] fired the gun.…” It is correct that the evidence
supports, or even compels, that inference. But that fact does not compel the conclusion


       5   The only witness, Washington, left after the assault and before the firing of the
gun.



                                               9.
that section 654 does not apply because “the fact that one crime is completed before the
other is commenced … does not itself make the criminal acts divisible. [Citations.]”
(People v. Ratcliffe (1981) 124 Cal.App.3d 808, 817, original italics.)
       The People also claim “the court was correct to observe that the assaults were
finished so the gunfire was not simply the means to accomplish those crimes.…” We
agree that the gunfire was not a means to accomplishing the assaults. But, the more
important issue is whether the gunfire and assaults were both done in furtherance of the
robbery or any other common objective. Here, there is no evidence the firing of the gun
and the assaults were done pursuant to separate intents and objectives. This dispositive
conclusion is not altered by the fact that there was substantial evidence the firing of the
gun was not a means to accomplishing the assaults.
     DEFENDANT IS ENTITLED TO ONE ADDITIONAL DAY OF CREDIT
       Defendant contends he is entitled to an additional day of presentence custody
credit and the People concede. We agree and order modification of the judgment to
reflect 223 days of credit.
    DEFENDANT WAIVED HIS CHALLENGE TO THE FEES IMPOSED AT
                         SENTENCING
       Defendant claims the court erred in imposing fees under sections 987.8 and
1203.1b. Defendant waived his right to challenge the fees by failing to object in the
sentencing court. (See, generally, People v. Snow (2013) 219 Cal.App.4th 1148; People
v. Aguilar (2013) 219 Cal.App.4th 1094.)
                                       DISPOSITION
       The judgment is modified to reflect: (1) a stay of the execution of the sentence on
count V; and (2) that defendant is entitled to 223 days of presentence custody credit. As
modified, the judgment is affirmed. The matter is remanded to the trial court to amend
the abstract of judgment accordingly, and to transmit certified copies of the amended
abstract to all appropriate parties and entities.


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