Filed 1/21/15 P. v. Ysaguirre CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B255910

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA398916)
         v.

DEREZ DARNELL YSAGUIRRE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen
A. Marcus, Judge. Reversed in part, modified in part, affirmed in part, and remanded.
         Michele A. Douglass, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
                                  I. INTRODUCTION


       A jury convicted defendant, Derez Darnell Ysaguirre, of: shooting at an occupied
vehicle (Pen. Code, § 246)1 (count 1); discharging a firearm in a grossly negligent
manner (§ 246.3, subd. (a)) (count 2); and being a felon in possession of a firearm (§
29800, subd. (a)(1)) (count 3). Defendant admitted he had sustained a prior felony
robbery conviction within the meaning of sections 667, subdivisions (a)(1) and (b)
through (i) and 1170.12. Defendant was sentenced to 15 years in state prison. We
reverse the count 2 conviction. We modify the judgment with respect to assessments and
conduct credit. We remand for resentencing on count 3.


                                  II. THE EVIDENCE


       John Knapp was the deputy director of security for the Church of Scientology
(church) in Hollywood. On June 16, 2012, at approximately 3 a.m., Mr. Knapp was in
the church’s security control room. The church building was on Hollywood Boulevard,
on the northeast corner of Hollywood Boulevard and Ivar Avenue. The church had
multiple exterior security cameras in the area. A security guard, Oleksandr Solomko,
alerted Mr. Knapp that a fight had broken out on the sidewalk. Mr. Knapp manipulated
the security cameras to observe the fight. During Mr. Knapp’s testimony, the jury
viewed surveillance video from several cameras. Mr. Knapp saw defendant and two
other African-American males running west on Hollywood Boulevard. They turned
north on Ivar Avenue. As he walked north on Ivar Avenue, defendant looked back
towards Hollywood Boulevard. Watching the video at trial, Mr. Knapp testified, “It
looks like he’s doing something in his waistband or has something in his hand . . . .” A
red truck made a right turn onto Ivar Avenue and headed north. There was a gunshot.
After the truck passed, defendant and the two other African-American males ran south on

1      Further statutory references are to the Penal Code except where otherwise noted.

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Ivar Avenue and then west on Hollywood Boulevard toward Cahuenga Boulevard.
Defendant ran into an east-west alley from Cahuenga Boulevard. He ran about 25 feet
into the alley, then walked back toward Cahuenga Boulevard. He squatted down behind
a trash dumpster. Defendant exited the alley and ran north on Cahuenga Boulevard
where he encountered law enforcement officers. Mr. Knapp went outside the church
building to investigate. He found a bullet casing on the Ivar Avenue sidewalk where
defendant had been standing when the red truck passed by.
       Mr. Solomko created an edited version of the surveillance tape. The jury viewed
that edited surveillance video during Mr. Solomko’s testimony. Mr. Solomko was in the
church’s sixth floor dining room with the windows open when he heard a loud argument.
From the window, Mr. Solomko saw defendant and two other African-American men on
Ivar Avenue. The men were walking back and forth—north, then south, then north again.
Mr. Solomko saw a red truck accelerating north on Ivar Avenue. As the red truck passed
by, Mr. Solomko heard a gunshot. Mr. Solomko could not see defendant when the
gunshot was fired. He did not see anyone actually shooting. After reviewing the video,
however, Mr. Solomko saw that defendant raised his hand when the red truck passed.
Mr. Solomko testified, “Then I see when truck passing by, I found the guy raising hand
look like this (indicating).” Deputy District Attorney Reginald L. Neal described Mr.
Solomko’s motion: “For the record, the witness raised his right arm up in a 90-degree
angle . . . .” The truck slowed after the gunshot, then sped up again. Seconds later,
defendant and his two companions crossed Ivar Avenue in a southwest direction toward
Hollywood Boulevard. They then continued west on Hollywood Boulevard. Mr.
Solomko was communicating with Mr. Knapp by radio. Mr. Knapp was outside with
detectives. Mr. Solomko told Mr. Knapp where defendant had been standing when the
handgun was apparently discharged. Mr. Knapp went to that place and discovered the
bullet casing.
       The surveillance video and photographs show that defendant ran around the corner
from Hollywood Boulevard and then continued north on Ivar Avenue. Defendant, who is
right-handed, put his right hand into his pocket or waistband. He looked down at his

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hands and did something with them. He looked back towards Hollywood Boulevard.
Defendant walked north, then south, back towards Hollywood Boulevard. As he walked
back south on Ivar Avenue, he appeared to have his right hand in his pocket or waistband.
Defendant’s two companions also walked back and forth on Ivar Avenue, looking back
towards the corner of Hollywood Boulevard. Defendant walked north again and into the
view of a stationary camera. He had an object in his right hand which looks like a gun.
He placed the object in his waistband and looked over his shoulder toward Hollywood
Boulevard. A red truck turned the corner from Hollywood Boulevard northbound on Ivar
Avenue. As the truck neared him, defendant turned toward it. He raised his arms. After
the truck passed, defendant lowered his arms and placed the object back in his pocket or
waistband. Defendant and his two cohorts then turned and ran.
       Mr. Knapp directed Officer John Downey to the alley off Cahuenga Boulevard.
Officer Downey discovered a stainless steel .380 semiautomatic handgun underneath an
orange traffic cone in the alley. The gun was fully loaded. There was a round in the
chamber that was jammed in such a way that the gun could not be fired again. The bullet
casing found on the Ivar Avenue sidewalk had been fired from the gun abandoned in the
alley. Defendant was detained near the location of the shooting and subsequently
arrested. No gunshot residue was found on either of defendant’s hands.
       Detective Raymond Conboy twice interviewed defendant at the police station.
The interviews were recorded. During an initial interview, Detective Conboy testified
defendant made the following statements: “Basically he told me first . . . denied having a
gun. . . . . I showed him photos of a video image that depicted a man with a gun -- or
depicted a man at the scene, and he identified the photos as his.” About one hour later,
Detective Conboy interviewed defendant a second time. Prior to the second interview,
defendant was confronted with a video image depicting a man. The man had a gun in his
waistband. Detective Conboy described defendant’s admissions during the second
interview as follows: “He admitted to being in the alley. He denied dumping -- or
getting rid of a handgun in the alley. He admitted that he was the person in the photos.
He admitted that he had a gun. And the gun was in fact in his waistband. He denied the

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gun we recovered was the gun used in the shooting, and he denied telling me where the
handgun he reportedly had was.”


                                    III. DISCUSSION


                         A. Count 1: Sufficiency of the Evidence


       Defendant challenges the sufficiency of the evidence to support his shooting at an
occupied motor vehicle conviction. Defendant argues there was no evidence he aimed
the gun at the vehicle: “The moment of the shooting was not recorded and not witnessed.
There was no bullet hole in a vehicle, and no wounded occupant. There is no way to
know if [defendant] shot at the truck, or across its bow or into the air as a warning, and
only speculation supplies the missing evidence.” Defendant asserts further: “[T]here is
no certainty where [defendant] aimed his gun since no one saw him point it and there is
no bullet hole to trace the trajectory of the bullet and his intended aim. There is no
evidence at all where [defendant] aimed when the camera panned away.” This contention
is meritless when considered in conjunction with the applicable standard of review.
       Shooting at an occupied motor vehicle, a violation of section 246, is a general
intent crime. (People v. Ramirez (2009) 45 Cal.4th 980, 985, fn. 6 [inhabited dwelling];
People v. Mendoza (1998) 18 Cal.4th 1114, 1123 [inhabited dwelling]; People v. Iraheta
(2014) 227 Cal.App.4th 611, 620 [occupied motor vehicle].) As our Supreme Court has
held, “The elements of this offense are (1) acting willfully and maliciously, and (2)
shooting at an [occupied vehicle]. [Citation.]” (People v. Ramirez, supra, 45 Cal.4th at
p. 985; accord, People v. Hernandez (2010) 181 Cal.App.4th 1494, 1501.) Our Supreme
Court set forth the applicable standard of review in People v. Jennings (2010) 50 Cal.4th
616, 638-639: “[W]e must determine 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. We review the entire record in the
light most favorable to the judgment below to determine whether it discloses sufficient

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evidence—that is, evidence that is reasonable, credible, and of solid value—supporting
the decision, and not whether the evidence proves guilt beyond a reasonable doubt.
(People v. Mincey (1992) 2 Cal.4th 408, 432.) We neither reweigh the evidence nor
reevaluate the credibility of witnesses. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) We
presume in support of the judgment the existence of every fact the jury reasonably could
deduce from the evidence. (Ibid.) If the circumstances reasonably justify the findings
made by the trier of fact, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding. (Ibid.)”
(Accord, People v. Hajek (2014) 58 Cal.4th 1144, 1260.)
       Substantial evidence supported the jury’s verdict. Defendant admitted he had a
gun. He concedes for purposes of his argument on appeal that he fired the weapon. On
the surveillance video, defendant can be seen walking on Ivar Avenue holding the gun in
his right hand. He looks back over his shoulder towards Hollywood Boulevard. The red
truck turns the corner from Hollywood Boulevard to Ivar Avenue. Defendant turns
toward the truck and raises his arms in the direction of the truck just as it accelerates past
him. Mr. Solomko heard a gunshot at that moment. The camera panned away from
defendant. When defendant came back into the camera’s view, he was putting the gun
back in his pocket or waistband. This was substantial evidence from which the jury could
reasonably conclude defendant fired his gun at the red truck.


                         B. Count 2: Necessarily Included Offense


       Discharging a firearm in a grossly negligent manner (§ 246.3, subd. (a)) is a
necessarily included lesser offense of shooting at an occupied vehicle (§ 246). (People v.
Ramirez, supra, 45 Cal.4th at pp. 985-990; People v. Overman (2005) 126 Cal.App.4th
1344, 1360-1362 [occupied building]; 1 Witkin & Epstein, Cal. Criminal Law (4th ed.
2012) Crimes Against the Person, § 49, p. 843-844.) Therefore, defendant’s count 2
conviction must be reversed. (People v. Pearson (1986) 42 Cal.3d 351, 355; People v.
Dowdell (2014) 227 Cal.App.4th 1388, 1416.) Because we reverse defendant’s count 2

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conviction, we must reduce his court facilities (Gov. Code, § 70373, subd. (a)(1)) and
operations assessments (§ 1465.8, subd. (a)(1)) to $60 and $80 respectively. (People v.
Rios (2013) 222 Cal.App.4th 542, 576; see People v. Sencion (2012) 211 Cal.App.4th
480, 484-485 [court operations and facilities assessments apply to each count of which a
defendant is convicted]; People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3
[same].)


                                  C. Count 3: Sentencing


       As noted, defendant admitted he had sustained a prior violent or serious felony
conviction within the meaning of sections 667, subdivisions (b) through (i), and 1170.12.
The trial court imposed a concurrent two-year sentence on count 3. Under sections 667,
subdivision (e)(1), and 1170.12, subdivision (c)(1), the trial court was required to double
the two-year term. (People v. Sok (2010) 181 Cal.App.4th 88, 93, 95, fn. 6; People v.
Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4; People v. Dominguez (1995) 38
Cal.App.4th 410, 424.) But the trial court could impose a two-year term if it struck the
prior felony conviction. (People v. Garcia (1999) 20 Cal.4th 490, 492-493, 496-504; see
In re Coley (2012) 55 Cal.4th 524, 559-560; 3 Witkin & Epstein, Cal. Criminal Law,
supra, Punishment, § 441, p. 696.)
       The record is unclear as to whether the trial court intended to strike the prior
serious or violent felony conviction enhancement which required the count 2 sentence to
be doubled. On one hand, the trial court never stated it intended to do so nor were the
mandatory section 1385, subdivision (a) findings set forth in the minutes. (People v.
Bonnetta (2009) 46 Cal.4th 143, 145-146, 153; People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, 504.) On the other hand, the imposition of only a two-year
sentence is consistent with the intent to exercise section 1385, subdivision (a) discretion.
Thus, the appropriate course of action is to reverse the sentence as to count 2 and allow
the trial court to either double the two-year sentence or strike the prior violent or serious
felony convention enhancement. (People v. Bonnetta¸ supra, 46 Cal.4th at pp. 145-146,

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153; see 5 Witkin & Epstein, supra, Criminal Trial, § 473, p. 736.) Upon remittitur
issuance, the trial court is to exercise its discretion in determining whether to strike the
prior violent or serious felony conviction enhancement. If the trial court decides not to
do so, then the concurrent count 2 sentence must be doubled to four years. Of course, our
discussion only relates to enhanced sentencing pursuant to section 667, subdivisions (b)
through (i) and 1170.12.


                                     D. Conduct Credit


       Defendant was awarded 504 days in presentence custody. But his conduct credit
was limited to 15 percent of his custody credit under section 2933.1, subdivision (a).
Section 2933.1, subdivision (a), applies to a defendant who is convicted of a violent
felony listed in section 667.5, subdivision (c). None of defendant’s crimes are violent
felonies. Section 2933.1, subdivision (a), applies to a felony in which a defendant uses a
firearm, but only when such use has been charged and proved as provided in sections
12022.3, subdivision (a), 12022.5 or 12022.55. (§ 667.5, subd. (c)(8).) There was no
such pleading and proof in the present case. Therefore, defendant was entitled to 504
days of conduct credit. (§ 4019; see People v. Brown (2012) 54 Cal.4th 314, 322; People
v. Rayanayagam (2012) 211 Cal.App.4th 42, 52; People v. Verba (2012) 210 Cal.App.4th
991, 993.) The judgment must be modified to so provide.




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                                   IV. DISPOSITION


       Defendant’s conviction of discharging a firearm in a grossly negligent manner,
count 2, is reversed. Defendant’s count 3 sentence is reversed. Upon remittitur issuance,
the trial court is to resentence defendant on count 3. The judgment is modified to:
impose $60 in court facilities assessments (Gov. Code, § 70373, subd. (a)(1)) and $80 in
court operations assessments (Pen. Code, § 1465.8, subd. (a)(1)); and award defendant
504 days of conduct credit. The judgment is affirmed in all other respects. Upon
remittitur issuance, and following resentencing on count 3, the superior court clerk must
amend the abstract of judgment and deliver a copy to the Department of Corrections and
Rehabilitation.
                           NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                           TURNER, P.J.
       We concur:




       KRIEGLER, J.




       GOODMAN, J.




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


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