THE PEOPLE v. MARCEL ESMIEU (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Marcel Esmieu appeals from the judgment rendered after a jury convicted him of attempted voluntary manslaughter (Pen.Code, §§ 664, 192, subd. (a)) ¹ and grossly negligent discharge of a firearm (§ 246.3), with findings that he personally used a firearm (§ 12022.5) in the attempted manslaughter and personally inflicted great bodily injury (§ 12022.7, subd. (a)) in both offenses.   The jury acquitted appellant of kidnapping (§ 207, subd. (a)), and also found him not guilty of the greater, charged offenses of attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a)), and shooting at an occupied motor vehicle (§ 246).   Appellant was sentenced to a term of 13 years.   We affirm the judgment, as modified to correct two legal discrepancies.

FACTS AND PROCEEDINGS

We appointed counsel to represent appellant.   Counsel filed a brief raising no issues.  (People v. Wende (1979) 25 Cal.3d 436, 441-442.)   On September 14, 2009, we advised appellant that he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider.   After being granted several extensions of time, appellant on January 21, 2010, filed a supplemental opening brief (supplemental brief), and a request for judicial notice that listed various documents attached as exhibits to the supplemental brief.   These included appellant's pro. per. motion in the superior court for DNA testing, a copy of which appellant filed here on November 13, 2009.   We address appellant's supplemental brief after summarizing the facts of the case.

The evidence at trial showed that in April 2007, appellant was living in Long Beach with Charon Dorsey, with whom he had a young son.   Although appellant wished to marry Dorsey, they had been experiencing difficulties.   On the night of April 26, 2007, Dorsey and a co-worker, Alden Bainton, attended a concert at the House of Blues.   After leaving her son and car at her sister Charlene's home in Bellflower, Dorsey rode with Bainton in his Chevrolet Avalanche.   Dorsey had told appellant she would be at Charlene's house that evening, doing church work and Bible study.

Later that night, appellant called Dorsey's cell phone several times, but got no answer.   Near midnight, he drove to Charlene's house, and Charlene told him Dorsey had gone to a club with a woman friend.   Appellant returned home and found on their computer that Dorsey had recently visited the House of Blues website.   He was upset, as he had asked Dorsey to the same event.   Again unable to reach her, appellant called the House of Blues and learned when the concert would be over.

Appellant phoned a friend, Michelle Tyomkin, and discussed his suspicion that Dorsey was with another man.   He then called his friend Rod Mencias, who drove to appellant's home at his request.²  Appellant asked Mencias to drive him to Charlene's.   Appellant took with him a loaded .40-caliber semiautomatic pistol that he owned for self-protection, telling Mencias it was because they would be in a bad neighborhood late at night.  (Appellant had had the gun in his car when he visited Charlene's house at midnight.)

In the meantime, Dorsey had become extremely intoxicated at the concert.   She passed out in the passenger seat of Bainton's vehicle.   Bainton drove her back to Charlene's, arriving at about 2:00 a.m. Appellant and Mencias arrived soon after and parked further down the driveway.

Appellant walked up to the driver's side of Bainton's vehicle and found Bainton, with the door open, facing out with his left foot on the running board and right foot inside.   Appellant also saw Dorsey, slumped over and unconscious in the other seat.   He asked Bainton who he was, and Bainton said he was a friend.   After further words, appellant stepped back, withdrew the gun from his sweatshirt, and fired one shot, which struck Bainton in the chest.   Bainton took a few steps out of the car and collapsed.   He testified that appellant then stood over him, pointing the gun.   Bainton said, “Don't shoot,” and appellant replied, “[You're] not dead?   I thought I shot you in the heart.”   Bainton was hospitalized for over three weeks.   He testified on cross-examination that at no time did he touch appellant's gun.

Appellant moved Dorsey to Mencias's car, and they proceeded to Mencias's apartment, Mencias driving Dorsey and appellant driving her car.   Dorsey remained there overnight.   Appellant drove to his uncle's home, where he left Dorsey's vehicle, with the gun in it.   Appellant rode home with the uncle, picked up his own car, and returned to Mencias's home.   On the way there, appellant called Dorsey and asked her to accompany him to Arizona.   She agreed, and he picked her up.   They were stopped by the California Highway Patrol east of Indio, and appellant was arrested.

Appellant's defense to the counts involving the shooting was that the gun had discharged accidentally, after he had turned to summon Mencias.   According to appellant, Bainton had begun to lunge at him, and he felt threatened.   Appellant denied intending to shoot, and also denied standing over Bainton or saying anything to him after the shot.³  Appellant's handgun safety expert testified that appellant's gun was susceptible to unintentional discharge because it had no external safety, and the so-called safety devices on it would not prevent a discharge if the gun were gripped with finger on trigger.   The witness also opined that the circumstances of the shooting, including appellant's stress, were consistent with an accidental discharge.

DISCUSSION

In his supplemental brief, appellant contends that DNA testing of his gun would establish that Bainton falsely testified that he did not touch it, and the superior court erred in denying appellant's recent, postjudgment motion for DNA testing under section 1405.   This contention arises from facts outside the record, which occurred subsequent to the judgment, and it is not reviewable on this appeal.⁴  Appellant also has attached to his brief copies of a petition for habeas corpus, and a motion for sanctions for failure to preserve exculpatory evidence.⁵  These pleadings, which should have been filed in superior court in the first instance, are not properly before us.

In our examination of the record pursuant to People v. Wende, supra, 25 Cal.3d at page 441, we identified two legal discrepancies in the sentence.   We notified appellant and respondent that we were considering modifying the judgment to correct these errors, and invited both sides to brief whether that would be appropriate.   Both filed responses agreeing with our analysis.

First, the trial court should have assessed a $20 court security fee for each count on which appellant was convicted, even though the sentence on one of those counts was stayed under section 654. (§ 1465.8, subd. (a)(1);  People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.)

Second, the court expressly utilized the jury's finding that appellant inflicted great bodily injury in the attempted manslaughter to impose the upper term for the firearm use enhancement on that count, rather than the great bodily injury enhancement itself.   In doing so, the court imposed and stayed sentence on the latter enhancement, ostensibly under section 654.   Instead, however, the court should have stricken the punishment on the enhancement. (§ 1385, subd. (c)(1);  People v. Langston (2004) 33 Cal.4th 1237, 1241;  People v. Jones (1992) 8 Cal.App.4th 756, 758;  Cal. Rules of Court, rule 4.420(c).)  We modify the judgment accordingly.

DISPOSITION

The judgment is modified to provide for a total of $40 in court security fees, and by striking the punishment on the section 12022.7 enhancement, rather than imposing and staying it under section 654.   As so modified, the judgment is affirmed.   The superior court shall amend its minute order to reflect the reasons the court stated when it ordered the enhancement stayed (see § 1385, subd. (a).)  The superior court also shall prepare and transmit to the appropriate authorities an amended abstract of judgment reflecting the above modifications.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Undesignated statutory references are to the Penal Code..  FN1. Undesignated statutory references are to the Penal Code.

FN2. Mencias was tried with appellant for allegedly kidnapping Dorsey.   Like appellant, he was acquitted..  FN2. Mencias was tried with appellant for allegedly kidnapping Dorsey.   Like appellant, he was acquitted.

FN3. Appellant testified, in part, “․ I don't know exactly how it happened.   I don't know if he tried to grab the gun.   I don't know if he pulled on it, I don't know if he ran into it or what.   The gun went off.”   On cross-examination, appellant further testified:  “Q. Your testimony is that you don't really remember how the gun went off, do you?  [¶] A. “No. I wasn't looking and I don't know if he pulled it, tugged it.   But the impact of the gun forced my hand loose.   So I don't know if he tugged it, pulled it, bumped into it, but when the gun went off ․ the back pressure of the gun, it felt like a jolt.   So I don't know if he grabbed it or it was when the gun went off, but I felt a tug.”.  FN3. Appellant testified, in part, “․ I don't know exactly how it happened.   I don't know if he tried to grab the gun.   I don't know if he pulled on it, I don't know if he ran into it or what.   The gun went off.”   On cross-examination, appellant further testified:  “Q. Your testimony is that you don't really remember how the gun went off, do you?  [¶] A. “No. I wasn't looking and I don't know if he pulled it, tugged it.   But the impact of the gun forced my hand loose.   So I don't know if he tugged it, pulled it, bumped into it, but when the gun went off ․ the back pressure of the gun, it felt like a jolt.   So I don't know if he grabbed it or it was when the gun went off, but I felt a tug.”

FN4. In fact, appellant recently filed a petition for writ of mandate to set aside the denial of his motion for DNA testing, which we denied without prejudice to appellant's filing another motion for testing in the superior court, or a request for appointment of counsel under section 1405, subdivision (b).  (Esmieu v. Superior Court (Jan. 29, 2010, B221493.).  FN4. In fact, appellant recently filed a petition for writ of mandate to set aside the denial of his motion for DNA testing, which we denied without prejudice to appellant's filing another motion for testing in the superior court, or a request for appointment of counsel under section 1405, subdivision (b).  (Esmieu v. Superior Court (Jan. 29, 2010, B221493.)

FN5. At sentencing, the court ordered appellant's weapon destroyed..  FN5. At sentencing, the court ordered appellant's weapon destroyed.

RUBIN, ACTING P. J. FLIER, J.