Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. RIF140227 W. Charles Morgan, Judge.
HUFFMAN, Acting P. J.
A jury convicted Jesse Clifton Hill of one count of attempted murder (Pen Code, §§ 187, subd. (a), 664; count 1 involving Serita McCormick); two counts of attempted premeditated murder (§§ 187, 664; count 2 involving Anthony McCormick and count 3 involving Omar Clingman); and one count of discharging a firearm at an occupied vehicle (§ 246; count 4). As to counts 1 through 3, the jury found Hill personally discharged a firearm (§§ 12022.53, subd. (c); 1192.7, subd. (c)(8)). As to count 4, the jury found true two allegations that Hill personally discharged a firearm proximately causing great bodily injury to Serita and Anthony (§§ 12022.53, subd. (d); 1192.7, subd. (c)(8)). On October 23, 2008, the court sentenced Hill to prison for an indeterminate term of 55 years to life: a five-year sentence for discharging a firearm at an occupied vehicle (count 4) and two consecutive 25-year-to-life sentences for the section 12022.53, subdivision (d) enhancements. The court stayed the remaining counts and enhancements under section 654.
Statutory references are to the Penal Code unless otherwise noted.
We refer to Serita and Anthony by their first names to eliminate potential confusion due to their shared surname.
Hill appeals, contending the court erred in refusing to sever his trial from that of codefendant Leknosko Stewart; there was insufficient evidence that the discharge of the firearm proximately caused Anthony's great bodily injury; and one of the section 12022.53, subdivision (d) enhancements must be stricken. We agree with Hill's last contention because he was charged with and convicted of only one qualifying crime—the section 246 offense—and only one additional term of imprisonment under section 12022.53 can be imposed "for each crime." (§ 12022.53, subd. (f).) We therefore strike one of the section 12022.53, subdivision (d) enhancements, reducing Hill's sentence by 25 years. As modified, we affirm the judgment.
FACTS
Prior Altercations
Codefendants Hill and Stewart were cousins, and they lived in the same neighborhood as Anthony around 2004 or 2005. Hill's girlfriend worked at McDonald's. Anthony was ordering food there one day and flirted with Hill's girlfriend in an attempt to get a free cheeseburger. Hill heard about this and became jealous and angry. He flagged Anthony down while Anthony was driving through the neighborhood and confronted him about the incident. Anthony explained he did not know the woman was Hill's girlfriend, and drove home. After thinking about Hill's behavior, Anthony felt disrespected, and returned to Hill's house to tell him so. The two fought physically in the street until Anthony decided he was not going to fight anymore, and went home.
A few weeks later, Stewart came to Anthony's house and wanted to fight because Anthony had fought his cousin Hill. They fought, and it ended in a draw. After the fight, Anthony considered the matter settled and had no more problems with Hill and Stewart. Hill and Stewart moved out of the neighborhood two or three months later.
2007 Shooting
In November 2007, Clingman drove Anthony and Anthony's wife Serita to a liquor store. He parked the Suburban he was driving in front of the store and noticed a black car in the parking space next to them. Serita noticed the driver of the black car was fidgeting. As the three entered the store, Anthony glanced back at the black car because he thought the occupants were staring at him. He recognized them as his former neighbors, Hill and Stewart, and told Serita he thought he knew them. Serita noticed Anthony was nervous, and that he kept looking back at the black car.
Clingman, Serita and Anthony purchased items in the store and returned to the Suburban. The black car was no longer there. Clingman drove, and as they left the parking lot they noticed the black car following closely behind. Serita looked back and recognized the driver as the same person who was fidgeting in the black car at the liquor store. Clingman panicked, drove fast, and made several evasive turns. He hit a tree, backed up, and continued to evade the black car. Clingman drove through a stop light at the freeway entrance, and got on the freeway. The black car drove through the stop light and chased them onto the freeway.
As Clingman was driving up the freeway on-ramp, Serita saw the driver of the car, whom she identified as Hill, pull out a gun and hold it outside the window of the black car. They heard shots and ducked. Anthony instructed Clingman to stay in front of the black car, and not to let it get alongside the Suburban. Clingman sped to the next freeway exit, and they continued to hear shots. Serita heard seven to eight shots total. As Clingman swerved to the freeway exit, he lost control, and the Suburban flipped and rolled several times. The car slammed into a tree, causing Anthony to be ejected and resulting in a broken jaw. Serita found Anthony with blood on him and skin missing from his face. Serita was covered in blood, and later discovered she had a gunshot wound to her ear.
Police recovered eight shell casings from the freeway. All shell casings were shot from the same gun. Three bullet holes were found in the Suburban—one in the rear door and two in the driver's side rear door. One bullet was recovered from the back of the driver's seat.
Stewart was later treated for a gunshot wound to his right hand. Stewart told authorities that he got into a dispute with a man in front of a mini-mart. The man produced a gun and a struggle ensued. The gun went off several times, and Stewart was shot in the hand. Stewart told authorities that he was with Mica Hickman when the incident happened. Hickman told a police officer that a man in a car pulled up next to him and Stewart, shot Stewart, and the car sped away.
Hill's Defense
Hill testified in his own defense. He and Stewart were traveling to Los Angeles and were smoking marijuana along the way. They stopped at the liquor store to purchase cigars to load with marijuana. While sitting in the parking lot, Hill was busy removing tobacco from the cigars and packing them with marijuana. He was looking around as he was doing this because he knew marijuana was illegal. Hill noticed the Suburban pull up next to them and he recognized Anthony when he got out of the Suburban and go in the liquor store. Stewart suggested that they park across the street in order to "square Anthony" by "mess[ing] around with him."
Hill moved his car across the street and began following the Suburban when it left the liquor store. He followed the Suburban to the freeway, but stayed six or seven car lengths behind it. The Suburban began weaving when it got on the freeway. Hill explained he could not have been following the Suburban as closely as Anthony and Serita testified because he had thin, low profile tires on his car. Any sudden movement, such as stopping fast, could peel off part of the tires.
Hill heard gunshots as he approached the freeway off-ramp. When he realized Stewart was shooting, he became angry and cursed at him. Stewart told Hill to calm down and keep going, and not to worry about it. Hill then noticed Stewart's hand was bleeding. Hill panicked and started driving fast to get Stewart help, and drove him to the hospital.
Hill explained that he was not trying to hurt anyone, and it was "just kind of funny at the time." Hill stated he was "just messing around" and did not know Stewart was going to shoot at the Suburban.
Hill's sister testified on his behalf as a character witness.
Stewart's Defense
Stewart did not present any testimony, but character witnesses testified on his behalf.
DISCUSSION
I
MOTION FOR SEPARATE TRIALS
Hill contends the trial court erred in refusing to sever his trial from that of codefendant Stewart. Hill contends severance of the trials was required because he and Stewart had mutually antagonistic defenses.
Background
Hill and Stewart were jointly charged with offenses related to the shooting. On June 2, 2008, Hill filed a motion for separate trials. The terse motion was based on Stewart's counsel not being ready, and also mentioned that Stewart "may provide exculpatory testimony" if the trials were severed. The written motion made no mention of the possibility of mutually antagonistic defenses.
At the hearing on the motion for separate trials, the only argument advanced by the defense attorneys was that Stewart's counsel was not prepared for trial. The court continued the case under section 1050.1 to July 17. Hill's attorney agreed with the ruling "[w]ith the understanding that my motion to sever will either be seriously considered or granted on that day if [Stewart's counsel] comes in and says, I'm engaged." The court indicated it would sever the trials if too much time elapsed, and agreed that the issue could be considered again on July 17 if necessary.
Section 1050.1 provides in part that where two or more defendants are jointly charged and the court "for good cause shown, continues the... trial of one or more defendants, the continuance shall... constitute good cause to continue the remaining defendants' cases so as to maintain joinder. The court... shall not cause jointly charged cases to be severed due to the unavailability or unpreparedness of one or more defendants unless it appears to the court... that it will be impossible for all defendants to be available and prepared within a reasonable period of time."
On July 17, the parties stipulated to continue the case, and the court trailed it until July 21. The case proceeded to trial on July 21. During opening statements, Stewart's counsel told the jury that Stewart would implicate Hill in the crimes. According to Stewart's counsel, Stewart would testify he saw Hill pull out a gun and that he told Hill to "just leave it alone." Stewart's counsel demonstrated how Stewart supposedly put his hands up and said "[n]o don't," as Hill shot through the passenger window, shooting Stewart's hand in the process.
Stewart did not testify as his attorney indicated he would. Hill's counsel therefore requested that he be allowed to argue before the jury about Stewart's failure to support what his attorney promised. The court denied the request, concluding Stewart's counsel had not operated in bad faith. The court ordered that no mention could be made regarding Stewart's failure to testify because doing so would invite error under Griffin v. California (1965) 380 U.S. 609, 615 (Griffin). However, the court ruled that Hill's attorney could argue there was no evidence Stewart stuck his hands in the air as Stewart's counsel indicated happened.
Griffin holds that it is error for a prosecutor to comment, directly or indirectly, on the failure of the defendant to testify. (People v. Hughes (2002) 27 Cal.4th 287, 371-372.)
During closing arguments, Stewart's counsel argued Hill was the shooter. Hill's counsel argued Stewart was the shooter, and there was no evidence put forth that Stewart held his hands up. The prosecutor argued both defendants were responsible for the crimes, and focused heavily on implicating Stewart. The jury convicted Hill but acquitted Stewart on all counts.
After trial, Hill's attorney filed a motion for new trial. The motion mentioned the contention alleged in the motion for separate trials—that Stewart may have provided exculpatory testimony had the trials been severed. The motion for new trial also focused on how Stewart's attorney's opening statement created potential Aranda-Bruton problems, and how the court erred in its ruling that Hill's attorney could not mention Stewart's failure to testify and how Griffin was inapplicable. Confusingly, the court found that it would not reach the separate trials issue because it was decided by a different superior court judge before trial, and it was therefore more appropriately challenged by writ proceedings at that time or as an appellate issue. No ruling was therefore made regarding separate trials.
This type of error occurs when a confession of a nontestifying codefendant is introduced at a joint trial against the other defendant. (People v. Aranda (1965) 63 Cal.2d 518, partially abrogated by constitutional amendment as stated in People v. Fletcher (1996) 13 Cal.4th 451, 465; Bruton v. United States (1968) 391 U.S. 123.)
Analysis
We conclude the issue has been waived for two related reasons. First, the written motion presented to the trial court focused on Stewart's counsel's unavailability. Although it mentioned Stewart "may" provide exculpatory testimony if the trials were severed, there was no antagonistic defenses argument put forth. Moreover, the arguments presented by the attorneys at the hearing focused entirely on Stewart's counsel not being ready for trial. As such, at the time the trial court was presented with the issue, it was not apprised of the contention advanced here on appeal—that severance was required because the defendants had antagonistic defenses. (See People v. Cummings (1993) 4 Cal.4th 1233, 1286-1287 & fn. 26 [generally, the propriety of a trial court's ruling must be reviewed in light of the showing made to the trial court and the facts known at the time of the ruling].)
Likewise, the motion for new trial did not place the issue properly before the trial court. The motion for new trial attempted to revive the motion for separate trials, but it too relied on the argument that Stewart might have provided exculpatory testimony, and not that there were antagonistic defenses. As we previously mentioned, the motion also focused on a possible Aranda/Bruton problem and attacked the trial court's Griffin ruling. The motion did not fairly present the antagonistic defenses argument raised in this appeal.
Second, even if the contention were properly before the trial court, there was no definitive ruling on the motion. The trial court indicated it was going to continue the trial based on Stewart's counsel's unavailability under section 1050.1. Hill's counsel agreed to this, subject to raising the issue in the future. Hill's counsel then failed to renew the motion for separate trials on July 17 (instead stipulating to a continuance) or when trial began on July 21. To compound the problem, the court never ruled on the merits of the separate trials issue in the motion for new trial. Under these circumstances, "[w]e follow the long-established rule that where a court, through inadvertence or neglect, neither rules nor reserves its ruling, the party who objected or made the motion must make an effort to have the court actually rule, and that when the point is not pressed and is forgotten the party will be deemed to have waived or abandoned the point and may not raise the issue on appeal. [Citations.]" (People v. Brewer (2000) 81 Cal.App.4th 442, 461-462; People v. Pinholster (1992) 1 Cal.4th 865, 930-931 [challenge to motion to sever trial waived where court continued matter and counsel failed to renew motion and formally press for a ruling on the issue]; People v. Cunningham (2001) 25 Cal.4th 926, 984 [issue waived where defendant initially moved to sever counts, the court never ruled on the motion due to a stipulation, and counsel failed to later press for a ruling].)
II
SUFFICIENCY OF THE EVIDENCE OF PROXIMATE CAUSE
Hill next contends there is insufficient evidence that the discharge of the firearm proximately caused Anthony's great bodily injury as alleged in count 4. Hill asserts Clingman was speeding and driving recklessly long before there was a gunshot, and a reasonable inference can be drawn that the Suburban would have crashed even had there been no gunfire. Thus, Hill asserts, there is insufficient evidence of causation, and the section 12022.53, subdivision (d) enhancement alleged as to Anthony must be reversed. We conclude there was sufficient evidence to support the enhancement.
In reviewing the sufficiency of the evidence we determine " 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under this standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all reasonable inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518.) In making this determination, we simply consider whether " ' "any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081; Jackson v. Virginia (1979) 443 U.S. 307, 319.)
To support a section 12022.53, subdivision (d) enhancement, there must be evidence that the discharge of the firearm "proximately causes" great bodily injury. (§ 12022.53, subd. (d).) A proximate cause of great bodily injury " 'is an act... that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act... the great bodily injury... and without which the great bodily injury... would not have occurred.' " (People v. Bland (2002) 28 Cal.4th 313, 335.)
Here, ample evidence supports the finding that Hill's shooting proximately caused Anthony's great bodily injury. Hill shot at the Suburban between the on-ramp and the off-ramp. Serita testified that Clingman was driving fast, "trying to swerve... around the bullets and trying to get away from the other car." She also said he was trying to "get away or maneuver away from the bullets from whichever way they were coming from." As a result of Clingman's attempts to evade the bullets, the car flipped and Anthony was ejected, causing him to break his jaw and skin his face. Even though Clingman was driving fast on side streets earlier in the chase, the chain of events that produced the great bodily injury was set in motion when Hill shot at the Suburban on the freeway. (People v. Bland, supra, 28 Cal.4th at p. 335.) Under these circumstances, any rational trier of fact could have found Hill's actions proximately caused Anthony's great bodily injury. (People v. Rich, supra, 45 Cal.3d at p. 1081; see People v. Zarazua (2008) 162 Cal.App.4th 1348, 1351-1352, 1361-1362 [sufficient evidence of proximate cause supported a section 12022.53, subdivision (d) enhancement where a driver sped away from shooters, disregarded traffic laws, and crashed into another vehicle, killing a passenger].) Sufficient evidence supports the enhancement.
III
DISCHARGE OF FIREARM ENHANCEMENTS
Hill contends one of the section 12022.53, subdivision (d) enhancements must be stricken because section 12022.53, subdivision (f) provides that only one term of imprisonment may be imposed for each qualifying offense conviction. Hill maintains he was convicted of only a single count of violating section 246 and thus is subject to only one enhancement.
Background
The criminal allegations against Hill have a tortured history. As relevant here, the district attorney filed an amended information on July 22, 2008 (the day before opening statements) alleging three counts of attempted premeditated murder (§ 187, subd. (a), 664; count 1 involving Serita; count 2 involving Anthony; count 3 involving Clingman) and two generic counts of discharging a firearm at a vehicle (§ 246, counts 4 & 5). As to counts 1 and 2, the information also alleged Hill personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). As to count 3, the information alleged Hill personally discharged a firearm (§ 12022.53, subd. (c)). As to counts 4 and 5, the information alleged Hill personally used a firearm (§ 1192.7, subd. (c)(8)) and personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)).
These counts did not identify a victim.
Counsel objected to the section 12022.53, subdivision (d) enhancements as to counts 1 and 2. The court found the district attorney's late amendment to be an "unfair scenario" in part because Hill was not on notice of the amendments. The court therefore ruled the section 12022.53, subdivision (d) enhancements in counts 1 and 2 reverted back to section 12022.53, subdivision (c) allegations that were listed in a first amended information. All other aspects of the second amended information remained intact.
A week later, after the conclusion of testimony but before closing argument, the district attorney sought a final amendment: to list Serita as the victim in count 4 and Anthony as the victim in count 5 of the two separate generic section 12022.53, subdivision (d) allegations. The court initially indicated it was not inclined to amend the information because the request was raised "at the end of the ballgame" and because it was "putting a great onus here on one specific defendant." Ultimately, however, due to a perceived "double count issue" and juror unanimity problems regarding the counts, the court suggested presenting the jury with only one count of violating section 246, and two separate section 12022.53, subdivision (d) allegations, each listing Anthony and Serita separately as victims. The district attorney acquiesced to this proposition, moved to amend the allegations listing the separate victims, and dismissed count 5 with the accompanying allegations.
The second amended information was therefore left with only one count of a violation of section 246, and two separate allegations of section 12022.53, subdivision (d), one as to each victim (Serita and Anthony), in addition to the other charges. Along with other findings, the jury convicted Hill of one count of section 246, and found true the two section 12022.53, subdivision (d) enhancements for Serita and Anthony. The court therefore sentenced him to prison for five years for the section 246 violation (count 4), and two consecutive 25-year-to-life sentences for the section 12022.53, subdivision (d) enhancements, for a total term of 55 years to life.
Analysis
Under section 12022.53, subdivision (d) "any person who, in the commission of a felony specified in... Section 246... personally and intentionally discharges a firearm and proximately causes great bodily injury... to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." The imposition of section 12022.53, subdivision (d) enhancements is limited by the following: "Only one additional term of imprisonment under this section shall be imposed per person for each crime." (§ 12022.53, subd. (f).) The word "person" in this subdivision means "defendant." (See People v. Smart (2006) 145 Cal.App.4th 1216, 1223 (Smart).)
Here, Hill was charged with and convicted of only one crime that qualified him for the section 12022.53 subdivision (d) enhancement: the section 246 offense of shooting at an occupied vehicle. Under a plain reading of section 12022.53, subdivision (f), Hill could only be sentenced for one enhancement. (People v. Perez (2001) 86 Cal.App.4th 675, 682 ["subdivision (f) presents no ambiguity as to the Legislature's intent to apply a limitation to one enhancement per crime"].)
For further support, Hill directs us to Smart, supra, 145 Cal.App.4th 1216. In Smart, two defendants were each charged with and convicted of a single violation of section 246. (Id. at pp. 1218, 1223, 1225.) However, the verdict forms delineated a section 12022.53, subdivision (d) enhancement separately for two victims and the jury found each enhancement true. (Id. at p. 1225.) The court concluded that the delineation of the enhancements at the verdict stage was "too late in the game to afford defendants fair notice of the possibility of two such enhancements." (Ibid.) The court also examined other cases imposing multiple section 12022.53, subdivision (d) enhancements on one defendant and noted that those cases "have aligned each enhancement with a separately punishable (charged and convicted) qualifying offense." (Id. at p. 1126, italics added.) Because defendants were only convicted of one qualifying offense, the court struck one of the two enhancements imposed against each defendant. (Id. at pp. 1126-1127.)
Here, like Smart, supra, 145 Cal.App.4th 1216, the jury was presented with two section 12022.53, subdivision (d) enhancements, but convicted Hill of only one violation of section 246. We conclude, as the Smart court did, that one of the enhancements was therefore improper.
The People contend that the second amended information filed July 22, 2008, contained two counts of a violation of section 246, thus putting Hill on notice that he could be subject to two enhancements. However, this ignores the fact that the district attorney dismissed the second section 246 count. The People essentially ask us to resurrect this count in order to preserve the second section 12022.53, subdivision (d) enhancement. We refuse to do so. As stated in Smart, "[t]his is the tail wagging the dog, the enhancement defining the crime. This is not legally allowed." (Smart, supra, 145 Cal.App.4th at p. 1226.) Thus, one of the two section 12022.53, subdivision (d) enhancements must be stricken. (Ibid.)
DISPOSITION
The trial court is directed to modify Hill's sentence by striking one of the two section 12022.53, subdivision (d) enhancements of 25 years to life. The court is also directed to amend the abstract of judgment accordingly, and forward a copy to the Department of Corrections and Rehabilitation. As modified, judgment is affirmed.
WE CONCUR: HALLER, J.McDONALD, J.