Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Sam Ohta, Judge. Los Angeles County Super. Ct. No. BA328508.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Juan Carlos Vigil appeals from the judgment entered following a jury trial that resulted in his conviction of second-degree murder, attempted murder and shooting at an occupied motor vehicle. He contends: (1) the trial court failed to sua sponte instruct on felony assault as a lesser included offense of attempted murder; (2) the trial court’s use of a juvenile adjudication as a prior conviction under the Three Strikes law was unconstitutional; (3) sentencing on the firearm enhancement violated the prohibition against multiple convictions and Double Jeopardy; and (4) the trial court erred in calculating his presentence custody credits. The Attorney General agrees with the last of these contentions. We modify the abstract of judgment and affirm as modified.
FACTS
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357), the evidence established that at about 6:30 p.m. on May 28, 2006, witness G. Smith was in her car on 84th Street, just east of Normandie, waiting behind a blue Escalade that was blocking the street while the driver spoke to a young woman standing outside the car. After about five minutes, the Escalade turned right onto northbound Normandie. Smith also turned right on to Normandie. While driving behind the Escalade, Smith observed it make a sudden lane change in front of a black Saturn, then stop short causing the Saturn to almost rear end the Escalade. The Escalade drove forward a little, then stopped short, once again causing the Saturn to almost rear end it. At a red light at the intersection of Normandie and Vernon, Smith saw the Saturn pull up beside the Escalade and the drivers of both cars engage in a heated argument. The Saturn driver threw a full beverage can at the Escalade, through the Saturn’s sun roof. When the light turned green, the Saturn pulled away and cut in front of the Escalade. After a short distance, the Escalade moved into the next lane and pulled up alongside the Saturn. Both cars then stopped side by side for no apparent reason. Smith did not see anything, but she heard four or five gunshots in quick succession and saw the Saturn’s passenger side window shatter.
After the shooting, the Escalade continued north on Normandie. When Smith pulled up next to the Saturn to see if she could help, Smith saw that the driver and a woman in the passenger seat had glass and blood on them; the driver was crying and screaming, “He shot her.” As Smith tried to call 9-1-1, she saw the Escalade continuing north on Normandie. Smith saw a reflection of the driver of the Escalade in the Escalade’s side view mirror, but she did not get a good look at him. She believed he was Latino.
The Saturn was driven by Russell Hepler; his wife, Margot, was in the front passenger seat. Hepler was shot in the elbow and Margot was fatally shot in the head. Hepler’s testimony recounting the events leading up to the shooting was generally consistent with Smith’s testimony. At the hospital, Hepler identified defendant as the shooter from a photographic six pack. Hepler also identified defendant at trial.
PROCEDURAL BACKGROUND
On November 16, 2007, defendant was charged by information with first-degree murder, premeditated attempted murder, and shooting at an occupied motor vehicle; firearm use (§ 12022.53, subds. (b), (c), (d)), and prior conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i) (the Three Strikes law)) enhancements were also alleged.
All undesignated statutory references are to the Penal Code.
On March 24, 2009, the jury found defendant guilty of the lesser included offense of second-degree murder, and the charged offenses of attempted murder and shooting at an occupied motor vehicle; as to each count, the jury found true all of the section 12022.53 firearm use enhancements. On May 12, 2009, an amended information was filed adding prior conviction enhancements pursuant to section 667, subdivision (a)(1). In a bifurcated proceeding the trial court found true the prior conviction allegations; it sentenced defendant to 98 years to life in prison.
Count 2 of the information charged defendant with attempted premeditated murder. Although the verdict form states that the jury found defendant guilty of attempted murder “as charged” in count 2 of the information, there was no express finding that the attempted murder was “willful, deliberate and premeditated.” (§ 664, subd. (a).) In fact, it would be difficult to reconcile such a finding with the jury’s express rejection of first degree murder in favor of conviction of the lesser included offense of second degree murder. That the trial court treated the conviction as one for attempted unpremeditated murder is the only reasonable inference from the 9 year sentence it imposed (doubled to 18 years pursuant to the Three Strikes law). This is because section 664, subdivision (a) makes attempted premeditated murder punishable by life in prison with the possibility of parole only if upon a finding or admission that the attempt was willful, deliberate and premeditated. Otherwise, the punishment for an attempt to commit second-degree murder is five, seven or nine years. (Ibid.)
This sentence was comprised of 55 years to life on count 1 (15 years to life for second-degree murder doubled pursuant to Three Strikes, plus a consecutive 25 years to life for the gun use); plus a consecutive 43 years to life on count 2 (9 years for attempted murder doubled pursuant to Three Strikes, plus a consecutive 25 years to life for the gun use); sentence on count 3 (shooting at an occupied vehicle) was stayed pursuant to section 654.
Defendant filed a timely notice of appeal.
DISCUSSION
1. The Trial Court Had No Sua Sponte Duty to Instruct on Assault With a Firearm
Defendant contends the trial court prejudicially erred by failing to instruct the jury sua sponte on assault with a firearm as a lesser necessarily included offense within attempted murder. He argues that, in applying the accusatory pleading test for determining whether one offense is a lesser included offense within another, a section 12022.53 gun use enhancement allegation should be considered an element of the underlying offense. From that point, he reasons that, as “enhanced, ” assault with a firearm is a lesser included offense within murder. Recognizing that a similar contention was rejected by our Supreme Court in People v. Wolcott (1983) 34 Cal.3d 92, 100 (Wolcott) (see also, People v. Parks (2004) 118 Cal.App.4th 1, 6 (Parks)), defendant argues that the reasoning of Wolcott was superseded by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. We disagree.
According to the heading for this argument in the Appellant’s Opening Brief, defendant also contends that the judgment on count 3 (shooting at an occupied motor vehicle) must be reversed for failure to instruct on the lesser included offense of felony assault. But defendant does not provide any legal authority for his contention, which is contrary to well-established law. (See e.g. People v. Licas (2007) 41 Cal.4th 362, 368 [assault with a firearm is not a lesser included offense of discharging a firearm at an occupied motor vehicle]; In re Daniel R. (1993) 20 Cal.App.4th 239, 247 [assault with a deadly weapon is not a lesser included offense of discharging a firearm at an occupied motor vehicle].) Accordingly, we deem defendant to have abandoned this contention. (Landry v. Berryessa Union School District (1995) 39 Cal.App.4th 691, 699-700 [“When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary. [Citations.]”].)
It is well established that a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. (Parks, supra, 118 Cal.App.4th at p. 6.) Assault with a firearm is not included within attempted murder under the statutory elements test. (Ibid.) Nor is it included under the accusatory pleading test merely based on the inclusion of a firearm use enhancement because enhancements are not considered when determining whether an offense is necessarily included under this test. (Ibid., citing Wolcott, supra, 34 Cal.3d at p. 101.)
Contrary to defendant’s assertion, Wolcott has not been superseded by Apprendi and its progeny. In People v. Anderson (2009) 47 Cal.4th 92, 101 (Anderson), our Supreme Court recently explained that a criminal offense is a collection of specific factual elements that the Legislature has chosen to define as a crime. The Legislature has provided greater sentences if certain enhancements are pled and proven. Apprendi requires that any sentencing provision that increases the penalty for a crime beyond the statutory maximum be treated as the “functional equivalent” of an element of a greater offense for purposes of a defendant’s federal constitutional rights to a jury trial. (Apprendi, supra, 530 U.S. at p. 494 & fn. 19; People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) But the court in Anderson explained that the right to a jury trial on certain enhancements does not make the enhancement an element of the substantive offense for all purposes. (Anderson, supra, at p. 117, citing People v. Izaguirre (2007) 42 Cal.4th 126, 128 (Izaguirre) and People v. Sloan (Sloan) (2007) 42 Cal.4th 110, 114.) “[T]he constitutional requirements of Apprendi apply only when a penalty or enhancement has the potential to increase a defendant’s punishment beyond the statutory maximum. [Citation.] When such an increase is not possible, Apprendi does not apply.” (Anderson, supra, at p. 117, fn. 11.) Nothing in Apprendi or the Supreme Court cases that followed affects the rule of Wolcott that “an allegation of firearm use under section 12022.5 should not be considered in determining lesser included offense.” (Wolcott, supra, 34 Cal.3d at p. 101.) Accordingly, we reject defendant’s argument that the jury should have been instructed on a lesser included offense.
2. A Juvenile Adjudication May Be Used as A Strike Under the Three Strikes Law
Defendant contends that, notwithstanding the contrary holding in People v. Nguyen (2009) 46 Cal.4th 1007, use of a juvenile adjudication as a prior conviction under the Three Strikes law violated his constitutional rights. As defendant acknowledges, we must follow Nguyen. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1956) 57 Cal.2d 450, 455 (Auto Equity).)
3. A Sentence For Murder May Be Enhanced Pursuant to Penal Code section 12022.53, Subdivision (d)
Defendant makes two arguments in support of his contention that it was error to enhance his 30 year to life sentence for second-degree murder with an additional 25 years pursuant to section 12022.53, subdivision (d) for the discharge of a firearm causing great bodily injury or death. He argues that both the enhancement finding and the imposition of the additional punishment violate the prohibition against multiple convictions set forth in People v. Ortega (1998) 19 Cal.4th 686, 692-694, overruled on other grounds in People v Reed (2006) 38 Cal.4th 1224, 1228-1229 and People v. Pearson (1986) 42 Cal.3d 351, 355, 359-360, overruled on other grounds in People v Fields (1996) 13 Cal.4th 289, 308, fn. 6, as well as the federal prohibition against Double Jeopardy. He explains that, under the reasoning of Apprendi, the firearm enhancement should be deemed a lesser necessarily included offense within second-degree murder and that “the Double Jeopardy clause should operate to preclude multiple punishment for identical conduct regardless of whether such multiple punishments arise out of unitary or successive prosecutions.”
Our Supreme Court has rejected similar arguments in Sloan, supra, 42 Cal.4th at pages 115-124 [rule barring multiple convictions involving necessarily included offenses did not apply to sentence enhancements] and Izaguirre, supra, 42 Cal.4th at pages 130-134 [Double Jeopardy did not apply to sentence enhancements and their underlying offenses]. We are bound by the Supreme Court’s decisions rejecting defendant’s contentions. (Auto Equity, supra, 57 Cal.2d at p. 455.)
4. Presentence Custody Credit
Defendant contends the trial court erred in denying him any presentence custody credits pursuant to section 2933.2. As the People note, after some initial confusion, the trial court awarded defendant presentence credit for 1, 036 days in actual custody, but the abstract of judgment and minute order omitted this award. We order the abstract of judgment amended accordingly.
In May 2007, when the murder was committed, former Penal Code section 2933.2 read: “(a) Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933 [worktime credit]. [¶] (b) The limitation provided in subdivision (a) shall apply whether defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law. [¶] (c) Notwithstanding Section 4019 [conduct credit] or any other provision of law, no credit pursuant to Section 4019 may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest for any person specified in subdivision (a). [¶] (d) This section shall only apply to murder that is committed on or after the date on which this section becomes operative.”
DISPOSITION
The trial court is directed to amend the abstract of judgment to award defendant 1, 036 days of presentence custody credit and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As amended, the judgment is affirmed.
WE CONCUR: BIGELOW, P.J., FLIER, J.