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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Richard Mario LOPEZ, Defendant and Appellant.

Cr. 33129.

Decided: September 24, 1979

Quin Denvir, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Jonathan B. Steiner and Michael S. McCormick, Deputy State Public Defenders, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Donald J. Oeser, Deputy Attys. Gen., for plaintiff and respondent.

Following a jury trial the defendant, Richard Mario Lopez, was found guilty of murder of the second degree (Pen.Code, § 187—count I), unlawfully and maliciously discharging a firearm at an occupied motor vehicle (Pen.Code, § 246—count II) and assault by means of force likely to produce great bodily injury and with a deadly weapon (Pen.Code, § 245, subdivision (a)—count III.)   Probation was denied and he was committed to the California Youth Authority (CYA) for the term prescribed by law.   He now appeals.

At about 4 a.m. on May 8, 1977, Jose Serna and Raul Calderon were proceeding west on Olympic Boulevard in Serna's 1964 blue Chevrolet Impala automobile.   Calderon was driving and Serna was sitting in the front passenger's seat.   As they approached Indiana Street, Serna saw defendant's 1965 blue Chevrolet Impala proceeding ahead of them in the left lane.   As they passed the car on the right at the intersection, Serna saw three people in it.   Defendant was driving, Ysidro Gutierrez was in the right front seat and another individual was sitting in the back seat.   Calderon pulled the car into the left hand lane in front of defendant's car.   When the two cars were about 150 feet apart, Serna saw the flashing of gunfire from the front passenger side of defendant's car.   Calderon accelerated and Serna ducked down below the window level.   Defendant's car then drove up alongside Calderon against the direction of traffic in the left eastbound lane.   Gutierrez fired about four shots into Serna's car.   Three of the shots struck Calderon, and the car crashed into a cement wall.

Serna was hospitalized for injuries and Calderon died.   Serna later gave officer Valenzuela the name of “Flaco” and selected defendant's photograph out of a photo display.

Officer Valenzuela then proceeded to the block on which defendant lives.   He saw defendant driving his 1965 Chevrolet.   In the vehicle were Manuel Carrasco, Margarita Acuna and Ysidro Gutierrez.   The officer arrested defendant and found a .32 caliber revolver in the trunk of the car.

In the opinion of a police expert, the bullet recovered from Calderon's shoulder could have been, and an expended round recovered from the floorboard of Serna's car positively was, fired from the revolver found in defendant's automobile.   Fingerprints found on the revolver matched those of the right index finger of Gutierrez.

The defense was that of denial and alibi.

On rebuttal, officer Romero testified that he assisted officer Valenzuela in defendant's arrest.   Romero stated that he sat in the back seat of the patrol car with defendant for about half an hour at the scene of the arrest.   While they were sitting there, defendant's mother approached the car and knocked on the window next to defendant.   The officer rolled down the window and defendant said to her, “Tell them I got home at 2:30.”   The officer then rolled up the window, thereby terminating the conversation.

 Defendant now argues that the trial court erred in instructing the jury (per CALJIC No. 2.04) 1 that it could infer a consciousness of guilt from efforts by defendant to fabricate evidence, since no evidence in the record could have supported such an inference.

In People v. Hannon, 19 Cal.3d 588, 597, 138 Cal.Rptr. 885, 564 P.2d 1203, the court held that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.

Defendant cites People v. Rubio, 71 Cal.App.3d 757, 769, 139 Cal.Rptr. 750 (overruled on other grounds in People v. Freeman, 22 Cal.3d 434, 438–439, 149 Cal.Rptr. 482, 584 P.2d 1088), which held that CALJIC No. 2.03,2 concerning a defendant's false statements, should not be given where a defendant gives an explanation of his behavior to the police which is consistent with his self-serving testimony at trial, because the instruction casts doubt upon his testimony and singles him out as a witness.   He argues, “[t]he same rule should apply to CALJIC 2.04 where the evidence supposed to be fabricated by the defendant is consistent with his self-serving testimony at trial and is merely inconsistent with the prosecution's evidence at trial.”

Here, evidence was received that when defendant was arrested he told his mother, “Tell them I got home at 2:30.” 3  A reasonable inference from this statement was that he was attempting to inform her as to a specific time to tell authorities he was home, so as to manufacture an alibi.

The situation where as here, a defendant tells a person what to tell authorities and then that person's testimony at trial conforms to what he had been told, is quite different from that existing in Rubio where a defendant gives statements to the police which are consistent with his trial testimony.   A witness' testimony at trial may be consistent with defendant's testimony precisely because he was told by defendant what to say to the authorities.

Under the circumstances that existed in the present case, there was no error in the trial court giving CALJIC No. 2.04 to the jury.

 Defendant also contends that the sentence imposed for the shooting into an occupied vehicle charged in count II should be permanently stayed, since that offense arose from the same indivisible transaction as the murder and assault with a deadly weapon charged in counts I and III and involved only the victims of those two offenses.   The People argue that Penal Code section 654 is inapplicable to a Youth Authority commitment.

California Rules of Court, rule 453 provides:  “When a defendant is convicted of a crime for which sentence could be imposed under section 1170 and the court orders that he be committed:  [¶] (a) To the California Youth Authority pursuant to Welfare and Institutions Code section 1731.5, the order of commitment shall specify the term of imprisonment to which the defendant would have been sentenced.   The term shall be determined as provided by sections 1170 and 1170.1 and these rules, as though a sentence of imprisonment were to be imposed.”

The Advisory Committee Comment to rule 453 states:  “Youth Authority commitments cannot exceed the maximum possible incarceration in an adult institution for the same crime.  People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375․  [¶] Under the indeterminate sentencing law, the receiving institution knew, as a matter of law from the record of the conviction, the maximum potential period of imprisonment for the crime of which the defendant was convicted.  [¶] Under the Uniform Determinate Sentencing Act, the court's discretion as to length of term leaves doubt as to the maximum term when only the record of conviction is present.”

To comply with rule 453, the selection of a term is subject to Penal Code section 654 and the case law implementing it.  (Pen.Code, § 1170.1, subd. (a).)

Here, the murder of Calderon and the assault upon Serna with a deadly weapon (charged in counts I and III) were accomplished by shooting into the vehicle which Calderon and Serna occupied (count II).   Imposition of a separate sentence on count II is therefore impermissible.  (Pen.Code, § 654;  See People v. Wesley, 10 Cal.App.3d 902, 904–905, 911–912, 89 Cal.Rptr. 377.)

Although the trial court granted appellant credit for 345 days of presentence custody, he urges that a recent amendment to Penal Code section 2900.5, subdivision (a) 4 which refers to credit for good time/work time earned under Penal Code section 4019 is applicable herein.   However, in recent appellate court decisions dealing with this subject our Supreme Court granted hearings on May 30, 1979.  (See People v. Sage, formerly 90 Cal.App.3d 722, 153 Cal.Rptr. 533;  People v. Brown, formerly 90 Cal.App.3d 1018, 153 Cal.Rptr. 762;  In re Davis, formerly 91 Cal.App.3d 640, 154 Cal.Rptr. 330.)   We decline to speculate as to the ultimate holding of our high court in these cases.   Presumably, if such credits are awarded, and regardless of the methodology adopted for their determination, all inmates will receive the benefit thereof administratively.

The judgment is affirmed insofar as it adjudicated defendant's guilt.   The commitment is vacated and the matter is remanded to the trial court for a new order of commitment in accordance with the applicable law.

HASTINGS, Associate Justice.

KAUS, P.J., and ASHBY, J., concur.

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