THE PEOPLE, Plaintiff and Respondent, v. GEOVANNY LEON, Defendant and Appellant.
CERTIFIED FOR PUBLICATION
Sufficiency of the Evidence
To convict a defendant of first degree premeditated murder or attempted murder, the prosecution must establish “beyond a reasonable doubt[ ] that [the defendant] acted with the specific intent to kill, and with premeditation and deliberation. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1223.) Appellant contends that the evidence is insufficient to establish the requisite specific intent to kill. Even if the evidence is deemed sufficient for this purpose, appellant contends that it is insufficient to establish the requisite premeditation and deliberation.
“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] ․ [A] reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] ‘This standard applies whether direct or circumstantial evidence is involved.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.)
Specific Intent to Kill
Appellant argues: “There is no evidence ․ that appellant aimed the gun at an occupant inside the vehicle intending to kill anyone in the car. A far more reasonable inference ․ is that appellant was either trying to shoot out a taillight of the vehicle or, possibly, the rear tire, in order to harass or scare the occupants inside the vehicle. Had appellant been aiming at the occupants of the vehicle, the shot would most likely have caused damage to a window or some other portion of the car in closer proximity to the passenger compartment.”
Substantial evidence supports the jury's finding that appellant had the specific intent to kill rather than to merely harass or scare the occupants of the vehicle. While traveling close behind the vehicle, appellant fired a bullet into its right taillight. Any reasonable person would have known that the taillight would not stop the bullet, which would continue to travel in the direction that the gun was pointed. Here, the gun must have been pointed in the direction of the passenger compartment; otherwise, the bullet would not have killed the passenger seated in the right backseat. Accordingly, viewing the evidence in the light most favorable to the judgment, a reasonable trier of fact could find that appellant had the requisite specific intent to kill.
But to uphold the attempted murder convictions, it is not enough to show that appellant intended merely to kill someone inside the Camry. It must be shown that he intended to kill each of the attempted murder victims. “ ‘To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else.’ [Citation.] Whether the defendant acted with specific intent to kill ‘must be judged separately as to each alleged victim.’ [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 740.) “Someone who in truth does not intend to kill a person is not guilty of that person's attempted murder even if the crime would have been murder-due to transferred intent-if the person were killed.” (People v. Bland (2002) 28 Cal.4th 313, 328.)
Based on People v. Smith, supra, 37 Cal.4th 733, we have no difficulty in concluding that the evidence is sufficient to support a finding that appellant harbored a specific intent to kill Hernandez, the attempted murder victim in count 2. In Smith a vehicle contained three occupants. The mother of a three-month old baby was seated in the driver's seat. The baby was seated in the backseat directly behind her. The mother's boyfriend was seated next to her in the front passenger seat. The defendant, who claimed that the mother was his ex-girlfriend, approached the vehicle and saw the baby in the backseat directly behind the mother. The defendant “fired a single shot into the vehicle from a position directly behind it and a distance of approximately one car length as [mother] was pulling away from the curb.” (Id., at p. 742.) The bullet “missed both the baby and the mother by a matter of inches as it shattered the rear windshield, passed through the mother's headrest, and lodged in the driver's side door.” (Id., at p. 743.) The defendant was convicted of the attempted murder of both the mother and the baby. Our Supreme Court rejected the defendant's contention that the evidence was insufficient to support the attempted murder conviction as to the baby. The court reasoned: “[E]vidence that defendant purposefully discharged a lethal firearm at the victims, both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire, can support an inference that he acted with intent to kill both. [Citations.]” (Id., at p. 743.)
Just as in Smith the baby was seated directly behind the mother, here Blanco was seated directly behind Hernandez. It is reasonable to infer that appellant saw Blanco and Hernandez inside the Camry. The Camry passed Bray's truck on its right side, and appellant was seated in the truck's right front passenger seat. The evidence, therefore, supports a reasonable inference that appellant “purposefully discharged a lethal firearm at the victims [Blanco and Hernandez], both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire․” (People v. Smith, supra, 37 Cal.4th at p. 743.) Accordingly, a reasonable trier of fact could find beyond a reasonable doubt that appellant intended to kill Hernandez as well as Blanco. In Smith our Supreme Court noted: “[E]ven if defendant subjectively believed he had a particular reason or cause to shoot at the mother, that does not preclude a finding that he also harbored express malice toward the baby when he fired in the vehicle with both victims directly in his line of fire.” (Id., at p. 738.)
Our conclusion that the evidence is sufficient to support a finding of specific intent to kill Hernandez as well as Blanco is also supported by People v. Chinchilla (1997) 52 Cal.App.4th 683. “The Chinchilla court affirmed two convictions of attempted murder based on the firing of a single bullet at two police officers who were crouched, one behind the other, in the shooter's line of fire.” (People v. Smith, supra, 37 Cal.4th at p. 744.)
On the other hand, no reasonable trier of fact could find beyond a reasonable doubt that appellant “acted with intent to kill [Rodriguez], i.e., that he purposefully shot into the vehicle with ‘a deliberate intent to unlawfully take away [Rodriguez's] life’ [citation] or [with] knowledge that his act of shooting into the vehicle would, ‘ “ ‘to a substantial certainty,’ “ ‘ result in [Rodriguez's] death. [Citation.]” (People v. Smith, supra, 37 Cal.4th at p. 743.) Appellant fired a single shot from behind the Camry into the right side of the passenger compartment, endangering the passengers seated in the right backseat (Blanco) and the front passenger seat (Hernandez). Rodriguez, who was in the driver's seat on the left side of the Camry, was out of the line of fire. It was physically impossible for the single bullet to strike Rodriguez as well as Blanco and Hernandez.
During closing argument, the prosecutor argued that the jury could reasonably infer that appellant intended to kill all of the occupants of the Camry because all of them were “in the kill zone.” Respondent refers to this “kill zone” theory in its brief. Our Supreme Court explained the “kill zone” theory in People v. Bland, supra, 28 Cal.4th at page 330: “[C]onsider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a ‘kill zone’ to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A's head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death.” “Bland simply recognizes that a shooter may be convicted of multiple counts of attempted murder on a ‘kill zone’ theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the ‘kill zone’) as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm.” (People v. Smith, supra, 37 Cal.4th at 745-746.)
We need not determine whether appellant's firing of a single bullet at the right side of the Camry's passenger compartment created a “kill zone” within the meaning of Bland.7 If it did create a “kill zone,” that zone encompassed only the persons in the single bullet's line of fire: Blanco and Hernandez. A reasonable trier of fact could not find beyond a reasonable doubt that appellant's firing of a single bullet constituted “lethal force designed and intended to kill everyone” in the Camry. (People v. Smith, supra, 37 Cal.4th at 746.) The situation would have been different had appellant fired more than one shot at the Camry or had he used a shotgun. In Bland our Supreme Court concluded that the jury could have reasonably found that the defendant had intended to kill a car's passengers, even though his primary target was the driver, because the “defendant and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone.” (People v. Bland, supra, 28 Cal.4th at pp. 330-331.)
Accordingly, the attempted murder conviction as to Rodriguez (count 3) must be reversed because the evidence is insufficient to show that appellant harbored a specific intent to kill him. This reversal reduces appellant's sentence by 40 years to life: 15 years to life for attempted murder plus 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d).
Premeditation and Deliberation
“A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] ․ ‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly․” [Citations.]’ [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
Here, a reasonable trier of fact could conclude that, before shooting at the Camry, appellant made a cold and calculated decision to kill Blanco and anyone else in the line of fire. Appellant had a motive to kill Blanco because they were members of rival gangs, they had fought each other in juvenile camp, and they had quarreled over “Shelly.” Moreover, Blanco was showing disrespect for Rivera 13 by traveling through its territory. This act of disrespect called for retaliation by appellant. The more violent the retaliation, the more appellant would raise his status in the gang. Appellant would gain maximum prestige and respect by committing a homicide.
While Bray was pursuing the Camry, appellant had the opportunity to carefully consider what course of action he would take. He used his hands to flash Rivera 13 signs so that anyone who saw him would know that he was acting for the gang's benefit. The jury could have reasonably found that appellant decided to commit a homicide both because he bore a personal grudge against Blanco and because a homicide would elevate his status within the gang more than any other retaliatory action.
“Section 669 grants the trial court broad discretion to impose consecutive sentences when a person is convicted of two or more crimes. [Citations.]” (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) California Rules of Court, rule 4.425 8 provides: “Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant's prison sentence; and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences.”
Appellant contends that the trial court abused its discretion in imposing consecutive life terms on each of the two attempted murder convictions. Since we are reversing the conviction for the attempted murder of Rodriguez, appellant's contention applies only to the consecutive life term for the attempted murder of Hernandez. Appellant argues that, since the murder and attempted murder convictions involved a single act rather than separate acts of violence, the sentence on the attempted murder conviction should have been concurrent.
We disagree. A trial court has discretion to impose consecutive sentences where, as here, a single act has resulted in crimes against multiple victims. For example, in People v. Valenzuela (1995) 40 Cal.App.4th 358, the appellate court upheld the imposition of consecutives sentences on two counts of gross vehicular manslaughter. Both counts were based on the defendant's single act of driving a motor vehicle while intoxicated and entering an intersection against a red light. The two victims were killed when appellant broadsided the vehicle in which they had been traveling. The court reasoned: “[Defendant's] drunk driving resulted in the death of two people, not just one. The trial court should have the discretion to make [defendant] ‘pay’ for both deaths.” (Id., at p. 365.)
Like the trial court in Valenzuela, the trial court here also did not abuse its discretion in imposing consecutive sentences even though the murder and attempted murder convictions were based on appellant's single act of firing his revolver at the Camry. The trial court relied on the probation report and respondent's sentencing memorandum. The probation report states: “[Appellant] ․ does not accept any responsibility for his actions and shows no remorse. [Appellant's] actions and behavior indicate he has no redeeming qualities and is a constant danger to the community.” As an aggravating factor, the probation report notes that appellant was on probation when the crimes were committed. (Rule 4.421, subd. (b)(4).) Respondent's sentencing memorandum lists other aggravating factors, including the following: (1) “The manner in which the crime was carried out indicates planning, sophistication or professionalism.” (Rule 4.421(a)(8).)(2) “The defendant has engaged in violent conduct that indicates a serious danger to society.” (Cal. Rules of Court, rule 4.421(b)(1).) The trial court specifically referred to these two aggravating factors, stating that they both “apply in this case.” The court further declared: “The fact that great violence was used in this case, he was personally armed, the planning, the sophistication of the incidents, the serious danger to -society that [appellant] presents should he be released again, all that argues in favor of consecutive sentencing.”
Appellant correctly notes that, in imposing consecutive sentences, the trial court erroneously considered as an aggravating circumstance the fact that he had personally used a firearm. The court relied upon this fact to enhance appellant's sentences pursuant to section 12022.53, subdivision (d). Accordingly, it could not rely upon the same fact to impose consecutive sentences. (Rule 4.425(b)(2).) But the other aggravating circumstances were properly considered by the court, and only a single aggravating circumstance is required to impose consecutive sentences. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Therefore, the trial court's dual use of the same fact (appellant's personal use of a firearm) to impose consecutive sentences and enhancements was harmless error. (Ibid.) We reject appellant's contention that, in imposing consecutive sentences, the trial court erroneously considered additional facts that had been used to enhance his sentences or were elements of his crimes.
Cruel and/or Unusual Punishment
Appellant contends that his sentence of 145 years to life constitutes cruel and/or unusual punishment in violation of the federal and state constitutions. In view of our reversal of the attempted murder conviction as to Rodriguez, appellant's contention now applies to a sentence of 105 years to life. “We decide whether the penalty given ‘is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity,’ thereby violating the prohibition against cruel and unusual punishment of the Eighth Amendment of the federal Constitution or against cruel or unusual punishment of article I, section 17 of the California Constitution. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1042.)
Appellant's sentence does not shock the conscience or offend fundamental notions of human dignity. He personally and intentionally discharged a firearm in committing one offense of deliberate and premeditated murder and one offense of deliberate and premeditated attempted murder. His violent felonies are particularly egregious because they were committed for the benefit of a criminal street gang. “It was [appellant's] conduct, not his sentence, that was cruel and unusual.” (People v. Wallace (1993) 14 Cal.App.4th 651, 666.) In Harmelin v. Michigan (1991) 501 U.S. 957 [111 S.Ct. 2680, 115 L.Ed.2d 836], the United States Supreme Court concluded that a term of life without the possibility of parole for possessing more than 650 grams of cocaine did not constitute cruel and unusual punishment. It follows that, in view of appellant's far more serious, gang-related crimes of violence, his sentence passes constitutional muster.
Abstract of Judgment
Respondent concedes that the abstract of judgment does not correctly reflect the sentence pronounced by the court. As to each of the attempted murder counts (counts 2 and 3), the trial court imposed a consecutive sentence of 15 years to life for the attempted murder plus 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d). But the abstract of judgment erroneously shows that, as to each of counts 2 and 3, the trial court imposed a consecutive sentence of 25 years to life for the attempted murder plus 25 years to life for the firearm enhancement. In view of our reversal of the conviction on count 3 for the attempted murder of Rodriguez, no sentence may be imposed on that count. The abstract of judgment must be corrected to show only one attempted murder consecutive sentence: 15 years to life for the attempted murder of Hernandez (count 2) plus 25 years to life for the firearm enhancement.
Superior Court County of Los Angeles
Sharon M. Jones, 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, Senior Assistant Attorney General, Steve E. Mercer, J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
7. FN7. In People v. Smith, supra, 37 Cal.4th at page 746, footnote 3, our Supreme Court declined to “decide under what factual circumstances, if any, the firing of a single bullet might give rise to multiple convictions of attempted murder under Bland's kill zone rationale.”
8. FN8. All references to rules are to the California Rules of Court.
GILBERT, P.J.COFFEE, J. Philip H. Hickok, Judge