Opinion
NOT TO BE PUBLISHED
San Francisco City and County Super. Ct. No. 204704
Reardon, J.
Appellant Marcus Fayette was convicted by a jury of attempted murder (count 1), with sustained findings of firearm use and great bodily injury; assault with a semiautomatic firearm (counts 4-5), with sustained findings of great bodily injury; discharging a firearm with gross negligence (count 7); carrying a concealed firearm (count 8); and carrying a loaded firearm (count 9). All special allegations that appellant committed counts 1 through 7 for the benefit of and in association with a criminal street gang, were found untrue. The court declared a mistrial as to two additional counts of attempted murder (counts 2-3) and one additional count of assault with a semiautomatic firearm (count 6); the San Francisco District Attorney subsequently dismissed those counts. The court sentenced appellant to the lower term of five years on count 1, plus a consecutive term of 25 years to life for the gun use enhancement.
The record includes two abstracts of judgment, both of which contain mistakes inconsistent with the court’s oral pronouncement of sentence. The People concur with appellant’s description of mistakes set forth on page three of his opening brief, footnote 1. We therefore direct the trial court to prepare an amended abstract of judgment to reflect correctly the sentence delivered in open court, namely: the lower term of five years on count 1, with a consecutive enhancement of 25 years to life for the Penal Code section 12022.53, subdivision (d) allegation, and that the sentence is life with the possibility of parole. (See People v. Freitas (2009) 179 Cal.App.4th 747, 750, fn. 2.)
This timely appeal followed.
I. FACTS
On July 4, 2007, Selvin Flores, along with Roberto Henriquez, Raul Bueso and Enrique Gonzales went to the Embarcadero near the Ferry Building to watch the fireworks. Around 10:30 p.m., Flores and his friends noticed a group of five or six persons who were looking at them. There were two women, one younger than the other; an African-American man and a Latino youth (14 to 15 years old); and a Latino man (20 to 21 years old).
People in the group asked Flores and his friends where they were “from, ” and what did they “claim.” Flores testified they said they were Norteños, and only Norteños could be there. Bueso stated that “the leader of the group that was looking at us” said things like, “North lives. North rules.” Henriquez testified that his group indicated “we weren’t from any side” and “they told us if you are nothing then get out of here.”
The Norteños is a criminal street gang that has consistently been in the Mission District of San Francisco for the past 10 years.
Flores and his friends moved away, but shortly thereafter the two groups crossed paths again. Appellant told them, in English, “it is better you walk away” but Henriquez asked why, noting “it is a public place and this is... a holiday.” Bueso testified “they felt like we had insulted them.” Appellant asked the younger woman to give him the gun. She opened her bag and appellant pulled out a gun. He pulled back the top slide, pointed the gun at Flores and began shooting from a distance of about five feet. Appellant shot Flores four times: in his left leg, shoulder, under the armpit and his right leg. Flores was very afraid and thought he was going to die.
The hospital emergency room physician who treated Flores testified that Flores had been shot several times and had some fractures and wounds, specifically two wounds in and around the right clavicle, two wounds on the left lower leg near the fibula and two wounds on his right thigh. Each wound was about a half a centimeter in size. They were not life threatening.
Henriquez thought the gun might be fake and went at appellant with his right hand raised in front of him. Appellant shot him in the forehead. It felt like his forehead had exploded.
Gonzales had a five- to six-inch graze wound on his upper back.
Flores and his friends had no weapons, and no one else in appellant’s group was seen with a weapon. Police officers recovered five.380-caliber shell casings from the crime scene, all fired from the same semiautomatic weapon.
San Francisco Police Sergeant Dion McDonnell, assigned to the gang task force, was the lead investigator. He put together two photographic lineups and showed them to the three shooting victims and Bueso. After receiving the results of the lineup, Sergeant McDonnell went “looking for” appellant and ultimately arrested him on July 10, 2007. Flores, Henriquez and Bueso identified appellant at trial as the shooter.
Police recovered a loaded.25-caliber semiautomatic firearm from appellant’s jeans pocket at the time of his arrest. Two red bandanas were found in his bedroom. A year later a sheriff’s deputy found a gang kite during a random search of appellant’s cell.
The Norteños “claim” the color red; it is a sign for the gang.
A gang kite is a small scroll with miniature writing. Kites are a form of jail communication for the Norteños gang.
A sheriff’s department deputy recorded appellant’s jailhouse telephone calls. CD’s of the calls were played for the jury, and transcripts were provided. His brother, James Fayette, a former gang member, talked about the fact that someone must have snitched and told appellant: “It doesn’t mean nothing, this gang shit. It’s over. Why you think I’m trying to be smart, blood? I’m done. Nigga, I know better, blood. It’s only getting worse. Now it’s too late. And I was trying to get you before it’s too late, but now it is too late.” Further, he said: “When they charge you with something, bro, that means they pretty much got you. You know? If they got something good enough to charge you, they got evidence.” Appellant replied: “I know. And not just fucking one, but two, fucking three of them, blood.”
Sergeant McDonnell testified that appellant associated with Norteño gang members, and opined he was a Norteño based on his activity during the incident in question, as well as the prior contacts and incidents.
Defense:
Appellant’s aunt, Mary Norris, testified that on July 4, 2007, she went to see the fireworks at the Embarcadero with appellant, his girlfriend Nancy, a woman named Mareta (20 to 22 years of age), and Mareta’s African-American boyfriend. She noticed a group of three or four young men looking at them. After the fireworks, they all began to leave but she got lost in the crowd. She heard popping noises, but thought it was fireworks. She did not see appellant hit anyone or pull out a gun.
Mareta Dean testified that she went with her boyfriend, appellant and his girlfriend Nancy, and appellant’s aunt to the Embarcadero that night. A group of five or six “Mexican guys” were arguing with appellant’s aunt, yelling face to face. Appellant tried to stop them, using calming words. They left but stared at appellant and his friends, and gave “mean faces.” Crossing paths with the group again, “they started talking mess” to appellant and someone threw a bottle at him. One of them charged at appellant, who put his hands up, then backed off; he had a nick on his face. Dean also saw a group of “Black guys walking by” who “got in it.” When one “of the Mexican guys punched a Black guy, ” he reached toward the middle of his torso, and then she heard shots.
Kathleen Grcevich also attended the fireworks that night. Walking back to the car, she saw a confrontation in which a Hispanic male punched an African-American male, who landed on the ground, pulled out a little silver revolver with a cylinder, and shot at the Hispanic male. However, she did not see gunfire or hear gunshots; someone said “it is fake.” Grcevich did not see appellant at the incident.
II. DISCUSSION
A. Substantial Evidence
1. Introduction.
Appellant charges that his conviction of the attempted murder of Flores must be reversed because it is not supported by substantial evidence. We do not agree.
In reviewing the sufficiency of the evidence on appeal, we must determine whether, upon viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime. We examine the record for reasonable, credible evidence that is of solid value to support a finding of guilt beyond a reasonable doubt. We presume all facts that could reasonably be deduced from the evidence and in support of the judgment. (People v. Catlin (2001) 26 Cal.4th 81, 139.)
To prove attempted murder, there must be sufficient evidence of “ ‘ “the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” [Citations.]’ [Citation.]” (People v. Perez (2010) 50 Cal.4th 222, 229-230.) The trier of fact must judge guilt of attempted murder separately as to each purported victim, whether such victim was particularly targeted or randomly chosen. (Id. at p. 230.) The mental state necessary to establish attempted murder “ ‘is the intent to kill a human being, not a particular human being.’ ” (Ibid.)
2. Analysis.
The gist of appellant’s argument is that there is insufficient evidence to show that he acted with the specific intent to kill. He points out that the emergency room doctor testified that Flores’s wounds were not life threatening, and surmises that the shooting “occurred spontaneously as a result of a confrontation between two groups of young men, who were obviously suffering from an excessive amount of testosterone.” Appellant also reminds us that although he “allegedly’ made some gang-related remarks, the jury did not find the criminal street gang allegations to be true.
These concerns are of no moment. The crime of attempted murder does not require that the wounds be life threatening. Rejection of the criminal street gang allegations, which require a number of very specific findings, does not negate the fact that gang-related taunts and claims of territory from appellant clouded the interaction between the two groups of young men. Finally, appellant’s summation of the evidence, notably that the shooting “occurred spontaneously” because of the testosterone-infused interaction of the groups, ignores key facts. After telling Flores and his friends to walk away, appellant apparently became insulted because Henriquez retorted that it was a public place. He then directed his girlfriend to give him the gun, and, when she opened her purse, he pulled it out, pointed the gun at Floresand started firing. Appellant shot Flores four times at close range; he suffered a number of fractures and wounds. There was sufficient evidence of intent to kill. The act of firing a weapon “ ‘ “toward a victim at a close, but not point blank, range ‘in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill....’ [Citation.]” [Citations.]’ [Citation.]” (People v. Perez, supra, 50 Cal.4th at p. 230.)
B. Unanimity
Appellant claims the prosecution was required to elect “which shot” it relied on for the attempted murder charge, and, because it did not, the trial court erred in omitting unanimity instructions. To compound these errors, appellant charges his trial counsel with ineffective assistance for not moving to force the prosecutor to elect the pivotal act. No error occurred.
A jury verdict in a criminal case must be unanimous. Further, “the jury must agree unanimously the defendant is guilty of a specific crime.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, if the evidence suggests that there is more than one discrete crime, “the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” (Ibid.)
Although the jury must agree on a particular crime that the defendant committed, “ ‘ “unanimity as to exactly how the crime was committed is not required.” ’ ” (People v. Datt (2010) 185 Cal.App.4th 942, 950.) Thus, no unanimity instruction is needed “ ‘ “where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.” [Citation.]’ ” (Ibid.) In deciding whether to instruct on unanimity, the trial court must assess whether there is a risk the jury might divide on two discrete crimes, while not agreeing on any particular crime, or whether the evidence simply presents the possibility the jury might “divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime.” (People v. Russo, supra, 25 Cal.4th at p. 1135.) Furthermore, multiple acts in a continuous course of conduct constitute one discrete criminal event. (People v. Flores (2007) 157 Cal.App.4th 216, 222.) Thus, unanimity instructions need not be given when the acts in question “ ‘are so closely connected as to form part of one transaction’ and ‘the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.’ [Citation.]” (People v. Ervine (2009) 47 Cal.4th 745, 788; People v. Datt, supra, 185 Cal.App.4th at p. 951.)
Here the attempted murder of Flores was accomplished by the rapid firing of four shots at close range to Flores’s legs, shoulder and armpit. The criminal act in question was the single discrete crime of attempted murder; unanimity as to the exact way in which this crime was committed—i.e., agreement on which specific bullets struck Flores—was not required. (People v. Russo, supra, 25 Cal.4th at p. 1135; People v. Datt, supra, 185 Cal.App.4th at p. 950.) Moreover, the gunshots were so closely connected in time as to form part of a single transaction, and appellant did not offer differing defenses as to the various shots fired. Indeed, appellant’s only defense was that he was not the shooter. Further, the evidence supporting each shot was the same and there was nothing in the record to demonstrate that he fired some but not all of the shots. In addition, and contrary to appellant’s assertion, the continuous course of conduct exception is not confined to long term child abuse or molestation. (See People v. Ervine, supra, 47 Cal.4th at p. 788 [various shots fired at police officers]; People v. Datt, supra, 185 Cal.App.4th at p. 951 [18-minute pursuit involving various Vehicle Code violations]; People v. Flores, supra, 157 Cal.App.4th at pp. 222-223 [witnesses heard gunshots without significant delay between individual discharges and location of bullet casings suggested defendant repeatedly fired gun while standing in one location].)
C. CALCRIM No. 600
Appellant challenges CALCRIM No. 600, asserting it defines attempted murder using “fatally flawed unconstitutional language.” He contends the instruction lowered the prosecution’s burden of proof by substantially expanding the liability for attempted murder, permitting the jury to find him guilty of attempted murder even if he did not intend to kill any of the three persons in the kill zone.
The court instructed the jury with CALCRIM No. 600 as follows: “A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in the particular zone of harm or kill zone. In order to convict the defendant of the attempted murder of Enrique Gonzales or Roberto Henriquez, the People must prove that the defendant not only intended to kill Selvin Flores, but also either intended to kill Enrique Gonzales or Roberto Henriquez, or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Enrique Gonzales or Roberto Henriquez, or intended to kill Selvin Flores by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Enrique Gonzales or Roberto Henriquez.”
The above instruction solely concerned counts 2 and 3, which charged appellant with the attempted murders of Gonzales and Henriquez. The jury did not reach a verdict on those counts, the court declared a mistrial and ultimately both counts were dismissed. The matter has no bearing on his conviction and raises only abstract or academic questions. The claim of instructional error therefore is moot and is not cognizable on appeal.
D. Severance
Appellant moved to sever counts 8 and 9—carrying a concealed firearm and carrying a loaded firearm—from the other counts. The trial court denied the motion, concluding that the two sets of charges fall within the same class of crimes; the evidence was cross-admissible; neither case was particularly weak in evidentiary support; and the probative value of hearing the counts together was outweighed by the prejudicial effect of joinder.
The law favors consolidation of charges and where the offenses charged belong to the same class, joinder is proper under Penal Code section 954. (People v. Manriquez (2005) 37 Cal.4th 547, 574.) A defendant must make a clear showing of potential prejudice in order to predicate error on denial of a motion to sever. We review such denial for an abuse of discretion, overturning the ruling only where the denial falls outside the boundaries of reason. (Ibid.)
Penal Code section 954 states in part that “[a]n accusatory pleading may charge... two or more different offenses of the same class of crimes or offenses, under separate counts, ... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.”
There are criteria to guide our evaluation of a trial court’s denial of a severance motion. An abuse of discretion for refusal to sever may be found, among other factors, where: (1) evidence on the charges to be tried jointly would not be cross-admissible in independent trials; (2) certain charges are unusually likely to inflame jurors against the defendant; and (3) a weak case is joined with a strong case or another weak case, such that a spillover effect of aggregate evidence on several charges might well change the outcome on some or all charges. (People v. Manriquez, supra, 37 Cal.4th at p. 574.)
Appellant does not quarrel that the charges stemming from his July 10 possession of a loaded firearm and those stemming from the July 4 use of a firearm are of the same class of crimes. Rather, he maintains that evidence of the two crimes was not cross-admissible, and he was prejudiced by joinder of the charges.
Assuming for purposes of argument only that there is some doubt as to cross-admissibility of the evidence, absence of cross-admissibility, alone, does not demonstrate prejudice. (Pen. Code, § 954.1; People v. Kraft (2000) 23 Cal.4th 978, 1030.) Appellant urges prejudice in joinder for several reasons. First, he baldly states that eyewitness and police officer testimony about the July 4 shootings was highly inflammatory and prejudicial in regard to counts 8 and 9. Conversely, appellant asserts that evidence that he was armed at the time of his arrest in combination with the prosecutor’s reference in closing argument to his recorded jailhouse telephone conversation with his brother “about how ‘he is always carrying a gun, ’ ” resulted in a grossly unfair trial as to count 1.
Appellant claims the prosecutor’s comment amounted to “improper bad character or propensity evidence” because he was telling the jury that appellant was the type of person who always carried a gun. Not so. The prosecutor’s comment was a factually correct comment on the evidence. (See People v. Valdez (2004) 32 Cal.4th 73, 127.)
First, none of the counts were weak. Three eyewitnesses identified appellant as the shooter; he asked for the gun, took it when Nancy opened her purse, and shot at three people at close range, thereby establishing the requisite culpable state of mind. As for the July 10 incident, he was carrying a concealed and loaded firearm when arrested, period. Appellant has raised no defense to that charge because there is none. The evidence of guilt as to all counts was strong.
Second, the charges were not too inflammatory for joinder. The issue is whether the charges were “unusually likely” to inflame the jurors against appellant. This test harkens to the Evidence Code section 352 inquiry into whether proffered evidence is unduly prejudicial, wherein we ask whether it tends uniquely to bring forth an emotional bias against the defendant as an individual, and has little effect on the issues. (People v. Johnson (2010) 185 Cal.App.4th 520, 534.) That appellant was carrying a concealed, loaded weapon nearly a week after the Fourth of July incident would not tend to uniquely inflame jurors against appellant as a person with respect to the crime of shooting at three persons at close range in a crowded plaza, crimes that certainly were as egregious as the carrying charges. Moreover, the jury convicted appellant on counts 8 and 9 because he was caught with a loaded concealed weapon, not because of emotional bias stemming from his earlier conduct.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J. Sepulveda, J.