California Cases November 25, 2019: People v. Rosales

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court , rule 8.1115(a) , prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published , except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BF166774A)

OPINION

THE COURT

APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge.

Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Cavan M. Cox, II, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Carlos Villa Rosales contends on appeal that we should remand for the trial court to clarify its decision not to dismiss two firearm enhancements under Penal Code section 12022.5, subdivision (a) (12022.5(a)). We affirm.

On June 20, 2018, defendant was convicted by jury trial of willful discharge of a firearm at an occupied motor vehicle (§ 246; count 1) and two counts of assault with a firearm (§ 245, subd. (a)(2); counts 2 & 3). The jury also found true allegations that defendant used a firearm in the commission of counts 2 and 3 (§ 12022.5(a)).

At the sentencing hearing on August 8, 2018, defense counsel moved the court to dismiss (or strike) the two firearm enhancements in the interest of justice (§§ 1385, 12022.5, subd. (c) (12022.5(c))). After much discussion, detailed below, the trial court sentenced defendant to a total of eight years in prison: four years on count 2, plus a four-year firearm enhancement; four years on count 3, plus a four-year firearm enhancement, to be served concurrently to the term in count 2; and seven years on count 1, stayed pursuant to section 654.

On December 2, 2016, at about 2:00 a.m., two friends (the victims) had eaten at a fast food restaurant in Bakersfield and were in their vehicle when they spotted a vehicle they believed had been involved in a break-in at the neighborhood of one of their parents. They followed the vehicle and called the police, continuing to update the dispatcher with their location. When they saw an officer stop the vehicle, they continued on and then stopped in front of an apartment complex while the passenger finished giving his information to the dispatcher.

As they sat in the parked car, defendant drove out of the apartment complex in a red pickup truck and headed south. The victims made a U-turn and headed north so the driver could take the passenger home. When they stopped at a red light, the red pickup

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stopped next to them on the passenger side. Defendant, who was alone in the pickup, began yelling at them: "[A]re you looking for me? I'm right here. If you're looking for me, I know who you are. I'm right here." Defendant seemed very hostile, so the passenger urged the driver to run the red light and try to go back and find the officer. The victims were nervous and thought it might be a case of mistaken identity. They drove through the red light, but defendant—still yelling—followed them closely, driving in the bike or parking lane on their right. The victims made a U-turn to look for the officer. They heard, "[A]re you looking for me? I'm right here if you're looking for me." The driver answered, "[D]ude, I'm not looking for you. I don't know who you are," and he drove on.

The victims then heard two or three gunshots ring out. After the first one, the passenger got down on the floorboard. He heard a bullet hit their vehicle. He told the driver, "[T]hose are gunshots. We are getting shot at." He told the driver to turn off the lights and go find the officer. They drove until they reached the officer. There were now multiple patrol cars at that scene. The victims yelled for help. They yelled that someone was shooting at them. They were both frantic and scared, and they had to calm down before they could give a statement. An officer located a bullet hole in the rear of their vehicle, near the license plate and directly behind the driver. The officer traced the bullet's path. He found the exit hole in the back seat and the bullet lodged behind a seat belt in the back seat. The seat belt bore an indentation from the bullet.

Defendant was found, based on his pickup, a photographic lineup, and an anonymous tip. He was arrested on January 4, 2017. An officer searched the pickup and found a nine-millimeter handgun inside a gun case between the driver's and passenger's seats. The gun contained a live chambered round. A separate 30-round magazine containing 24 live rounds was also in the case. The officer closely examined the asphalt of the relevant roadway and found no rubber residue that would indicate "doughnuts,"

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spinning, or any type of braking traction from any vehicles. The officer noted it is nearly impossible to get a front-wheel drive vehicle to do doughnuts.

Defense Evidence

Defendant testified he was leaving his apartment that morning to stay at his mother's house after having an argument with his wife. When he left the apartment, he took his handgun and tools with him. Recently, someone had followed his wife home and tried to break into their apartment. She called the police and spoke to someone. In addition, one of his vehicles had recently been vandalized.

As he was leaving his apartment complex, he saw a black car on the street stop and turn its lights off. The dome light inside the car remained on. He did not recognize the victims, but he was suspicious of the vehicle, so he pulled up next to it and "hollered out, [C]an I help you? Is there something I can do?" The vehicle's lights came on and it squealed toward him, as if it were going to "clip" his pickup. He was able to move his pickup out of the way. The vehicle made a U-turn and defendant followed. When the vehicle stopped at a red light, the victims made gestures and said, "F you[ ] this, F you that. F you that." Then they took off with a screeching sound. At some point, defendant asked them, "[A]re you lost? Are you looking for someone? Are you looking for me?"

The victims stopped near a church. Defendant stopped about 10 car lengths behind them. The driver got out of the vehicle and approached defendant's pickup "in a rampage." Defendant reached into his back seat and got his gun case from under the rear bench seat. He put a magazine in the handgun (which was registered to him), chambered a round, and placed the gun on his lap. The approaching driver could not have seen the gun, but he changed his mind and returned to his vehicle. He got in and drove straight at defendant, then veered off, and started doing doughnuts at a high speed right alongside defendant's pickup. Defendant rolled down his passenger window. During the first

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doughnut, defendant said, "[H]ey, man, what's your problem?" During the second doughnut, the driver yelled, "I'm looking for your wife, is she home?" During the third doughnut, defendant thought the vehicle was going to "T-bone" him. He was panicking. To scare the driver away, he fired two rounds out the passenger's window of his pickup into the grass. He never shot the gun out of his driver's window and he never shot at the vehicle. The vehicle then sped away, tires screeching. Defendant left in the same direction, but he went home to check on his wife. He tried to call 911. He got disconnected and did not try again because he was unhappy with how the police had handled the previous situation with his wife.

Defendant testified that when an officer later informed him a bullet had entered the vehicle, defendant said his only explanation was that he accidentally discharged the gun when he was bracing himself for impact. If he accidentally shot the gun, the bullet would have ricocheted from the street and possibly ended up in the vehicle.

A former firearms instructor with experience in ballistics and shooting investigations examined the bullet found inside the victims' vehicle. He believed the bullet hit a hard, rough object, such as asphalt, and was deformed in the process.

Rebuttal Evidence

The police dispatch system immediately captured call information from incoming 911 and non-emergency calls, including calls that were hung up. The system accurately maintained the information indefinitely. Telephone numbers belonging to both defendant and his wife were run through a records search of this system. No calls to either 911 or the non-emergency police line from any of these numbers were made on the date of the incident, and no calls were made on any date regarding this incident or an attempted burglary, stalking, vandalism, or similar crimes. Defendant's address was also checked and there were no reports or calls for police services relevant to this case. The alleged call by defendant's wife, in which, according to defendant's testimony, she was speaking to dispatch while someone was trying to open her door would have been in the system.

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A police sergeant—highly trained in firearms in both the military and the police department, with over 150 hours of crime scene investigation and training, including the effects of bullets striking different materials—examined the victims' vehicle and the recovered bullet. He stated the bullet lodged in an area that would have been near the right shoulder or head of an adult seated there, depending on the person's height and angle. If the bullet had continued traveling, it definitely would have struck the driver because the trajectory was headed for the driver's headrest. The path of the bullet indicated it was a somewhat flat trajectory, consistent with someone firing from behind the vehicle. The sergeant stated it could not be concluded that the bullet hit asphalt rather than just parts of the vehicle.

Surrebuttal Evidence

Defendant's wife (now ex-wife) testified that when she was followed home by a man and he tried to open her front door, she grabbed her cell phone. That phone had an old number she no longer used. She called defendant and he told her to call the police. She did not want to call 911 because the man was gone by then, so she searched the internet for a non-emergency number for the Bakersfield Police Department. She called that number and explained what had happened. The dispatcher asked if the man was still trying to get into her home. She said no, so the dispatcher took her information and told her they were not going to send an officer out.

The wife testified she had called the police when she and defendant had fights. Sometimes he would put his hands on her, but he did not harm her, except for when he pushed her face into the couch and caused her gums to bleed. She would call the police to make him leave. She probably called from their landline during those incidents.

Defendant challenges the trial court's imposition of the two four-year section 12022.5(a) firearm enhancements and argues remand is necessary. He contends the trial court initially "ruled" it was appropriate to strike the enhancements and "appear[ed] to strike the enhancements," but then proceeded to impose the midterm

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enhancements. He argues the court's imposition of the enhancements was inconsistent with its prior "apparent ruling," and the court's discussion reflected ambiguity, confusion, and possibly even abuse of discretion. He notes the court never granted or denied the defense motion to strike the enhancements.

The People respond that the trial court was aware of its discretion to strike the enhancements and it chose not to do so. Further, it did not abuse its discretion in imposing the enhancements.

In reply, defendant argues remand is required because the trial court's ruling and reasoning were ambiguous and unclear, even if the court did understand the scope of its discretion.

I. Sentencing Hearing

At the sentencing hearing, defense counsel argued extensively that the trial court should strike the two firearm enhancements because defendant did not have a violent criminal record, but simply suffered an emotional outburst and committed a crime of passion. Counsel argued a 10-year enhancement in this case was "mind-boggling."

The prosecutor, on the other hand, agreed with probation's 17-year-four-month recommendation, explaining:

"... This was not a crime of passion. This is not an incident of miscommunication. The evidence showed that the defendant engaged the victims. He followed the victims in their cars and they tried to get away from him. He took out and loaded a firearm and he continued to follow the victims as they tried to turn to get away from them. He aimed the gun. He shot the gun multiple times and he struck the victim's vehicle.

"The defendant chose to shoot a gun in a car with two people that he knew were in that car, and just because—really just because he was a bad shot, this case is a lot less serious than it could have been. There could have been injuries and there could have been much more—that shot as we saw from the pictures. [¶] If it had been a little bit higher, it would have gone right into the driver's head, and this is just not some miscommunication. This was a serious act that happened unprovoked. The defendant brought this on himself and he started the altercation. From the victims, there's no evidence that they did anything back to the defendant

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and the evidence showed and the jury agreed that the defendant made all these acts.

"It's appropriate that the firearm enhancement be applied and that the defendant [be] held accountable for what he did. Additionally, I would like to point out that the defendant after this case has multiple felony cases pending for fraud and failure to appear.

"Additionally, he was charged subsequent to this conduct with driving around again with a gun in his car, a misdemeanor in that case, but he chose after this case to again arm himself to have a gun ready to use if his anger got the best of him. I submit."

Defense counsel responded that defendant suffered from road rage that caused him to display his emotions. Further, there was obviously a lack of communication because the victims asked, " 'Are you looking for me?' "

After hearing these arguments and statements from defendant and his family, the court stated the following:

"The first issue obviously is probation, whether he would be eligible for probation. And under the law and particularly under Penal Code Section 1203[, subdivision ](e)(2), he would not be eligible for probation except in the unusual case. And having considered certainly some mitigation which there is plenty in this case relative to the defendant more so obviously than the crime itself, and the California Rules of Court, Rule 4.413, I'm simply not in a position to say this case would be—can be cited as unusual, and it's not to say he wouldn't be a suitable candidate for probation, because I have reason to believe that he could be rehabilitated and consequently be a [ sic ] successful on probation.

"However, I simply don't find the circumstances, particularly the nature of the case to be such that I can cite this case to be unusual. He is 38 years old and he does have a prior criminal history leading up to this case as well, so I'm not going to cite this case as unusual and I'm going to be denying probation.

"Now, with regards to Mr.—what the appropriate sentence is in this case. As I indicated, there's—certainly, this presents a situation that shows a man that has—certainly at some point in time turned his life completely, completely around. There's—in the probation report, it reflects that he suffered a robbery conviction as a juvenile and that was in 1997 and he

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would have been 17 years old and he was made a ward of the juvenile court in '98 and I don't see where his probation was ever revoked.

"Certainly, that's a serious offense and I don't know what the facts are, but that—as noted by the probation department, it could have been a prior strike arguably that could have been alleged due to his age and the nature of the conviction.

"However, if it were alleged for the reasons that I will be discussing, I would have dismissed the prior strike, nevertheless, due to his age and the extensive period over to which [defendant] has been a productive citizen ...—I'm sorry, from ages 17 to 22 which would be 1997 to 2002, he did suffer additional convictions as noted in the probation report subsequent to that juvenile adjudication. They are misdemeanors. They involve some weapons charges in 2000 and drug charges, driving suspended license charges, false information to a peace officer, a misdemeanor burglary, charge—weapons charge in 2002, a fraud charge in 2002 for which he did receive various days in custody, no significant amount of time that I could see, so it's up through 2002, he did not spend any significant amount of time in jail and had not suffered any felony convictions. [¶] ... [¶]

"But, nevertheless, from 2002, in looking at his employment history and what we know about [defendant] based on letters and based on evidence that came out in the trial, he became employed—it looks like he became an electrician in 2002 and he became an—ultimately a journeyman, an electrician and he has had steady employment from 2002 up until the date of his arrest in 2016 as an electrician earning obviously a very reasonable income and he obviously supported his family and he worked for—it looked like four different employers before he became self-employed in 2016, so it appears in 2002, he did turn his life around and had the intent to turn his life around.

"And in that vane [ sic ], he did go back, as to all those misdemeanors, something you rarely see and he did have all those misdemeanor charges dismissed pursuant to [section] 1203.4, so it appears to the Court in 2002, [defendant] did make a decision to turn his life around and become a contributing citizen and as an individual, obviously, with a family, support his family which apparently he did having—not coming into contact with the law again until 2016, that's our case, so that's a substantial period of time 14 years where he was crime free and it appears clearly he did turn his life around based on the probation report and based on what I'm hearing from his family and friends and then this case happens, so you know—and this case is the issue.

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"The facts of this case is an issue obviously for purposes of deciding what the just punishment is in this case is, because it's a serious,—it's a serious case what occurred here involving the shooting of a firearm that ultimately struck a vehicle in which there were two occupants and there's no reason to believe they were armed; although, we heard evidence that [defendant] was acting in self-defense, so it's certainly a serious case.

"However, at this time, he's 38 years old. He does have an—in addition to becoming a certified journeyman electrician. He has a high school education and he has an AA degree out of Bakersfield College. And as I indicated, he has had the steady stream of employment where he was a productive citizen, so there's substantial mitigation. There's substantial good that this man has done for a lengthy period of time up to the point in this particular case where these events occurred, so—and I appreciate there's some argument about emotions and provocation, and I think those things can play a part and there's certainly evidence arguably that there might have been some provocation and certainly the Court is considering the evidence as it was presented to the jury in this particular case.

"If there was some provocation—and this does appear to be—because of the lack of any violence in his history, a—an act that certainly is inconsistent with his—his character and there's no evidence that he has any sort of character for violence, but for this juvenile offense potentially that occurred in 2000 or 1997, so it's a difficult decision obviously for the Court .

" And what I have to do is find what punishment would best serve the interest of justice . And this is something—in this case , in particular , I've struggled with .

"However, I have—based on—what the age of everybody today, certainly, the defense and [the probation officer] and the probation report, I came to a conclusion as to what sentence would best serve the interest of justice in this particular case , so consequently as I indicated, we will start with Count 2 as well as the probation report does.

"As to Count 2, that's the 245[, subdivision ](a)(2) charge, it's—I just want to point out one more thing relative to his being a law-abiding citizen. This is a case where he did not fill out a relinquishment of firearms under Penal Code Section 29810[, subdivision ](c). He didn't fill out, just to recite what's in the probation report the form if I remember right. [¶] However, he—it was noted, he does have two firearms, so he will need to obviously relinquish those firearms if he hasn't already done so, but the

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point I'm simply trying to make is in doing the investigation of [defendant], they did find two firearms registered arguably to [defendant] which again reflects that he was a law-abiding citizen. He did have firearms, but he did what law-abiding citizens do. They register them in their names and apparently he did that as well, so I wanted to point that out as well. [¶] It seems he made a—obviously, a decision to be a law-abiding citizen and support his family which he did obviously did very well.

"Nevertheless, getting back to Count 2. As I indicated, probation is denied. And what I have to determine at this time and I certainly recognize I have the discretion to dismiss the enhancement , the Penal Code Section 12022 . 5(a) and I think it is appropriate to do so and I appreciate having the ability to do so , because I don't think it is appropriate sometimes to impose that particular enhancement in some cases .

" The issue I have in this case , the overriding issue for the Court in deciding what is the fair and just punishment , because as I indicated , there is substantial mitigation as I've pointed out in this situation is the fact that this is a crime that absolutely presented a great threat of bodily injury in this case .

" You simply can't fire firearms at vehicles that are occupied by individuals and so that's—that's the overriding issue that the Court has in terms of deciding what a just punishment is in this case , so with that in mind and based on the nature of this case and the fact that it did present a great threat of bodily harm , as to Count 2 , I'm going to sentence the defendant to the Department of Corrections , not for the midterm , but for the upper term of four years , because I feel that is the sentence relative to Count 2 that would best serve the interest of justice .

" However , I'm going to enhance that sentence by—not the upper term of ten years , but four years pursuant to Penal Code Section 12022 . 5(a) of the Penal Code and for a total fixed term as we will see as I'm sentencing on the other counts for a total of eight years.

"As to Count 2, ... I will find that he has not completed the prohibited person's relinquishment form and a check of the automatic firearm system shows he has reportable firearms as I noted for the probation officer's report, so those need to be either transferred or relinquished to law enforcement, [defendant]. [¶] ... [¶]

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"... As to Count 3, probation is denied and the defendant is sentenced to the upper term again of four years to which I will be adding again the enhancement of four years for the 1202[2].5(a) allegation.

"However, I'm going to order that sentence be served concurrent to the sentence imposed above and for a total fixed term of eight years.... [¶] ... [¶]

"As to Count 1, probation is denied and the defendant is sentenced again to the upper term, and I think that would be seven years. Pursuant to punishment for said sentence, however, is stayed pursuant to Section 654 of the Penal Code until successful completion of the sentence imposed above and permanently thereafter." (Italics added.)

II. Analysis

Senate Bill No. 620 (2017-2018 Reg. Sess.), effective January 1, 2018, permits a trial court, in its discretion, to strike firearm enhancements imposed under sections 12022.5 and 12022.53. (§§ 12022.5(c) & 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1, 2.) The statutes provide that "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (§§ 12022.5(c) & 12022.53, subd. (h).) Prior to Senate Bill No. 620, trial courts had no discretion to strike firearm enhancements under sections 12022.5 and 12022.53.

If a trial court fails to exercise its discretion to strike an enhancement, remand may be required. " '[W]hen the record shows that the trial court proceeded with sentencing on the ... assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.' " ( People v . McDaniels (2018) 22 Cal.App.5th 420, 425; see People v . Koback (2019) 36 Cal.App.5th 912, 928 [" '[W]hen the record indicates the court misunderstood or was unaware of the scope of its discretionary powers, we should remand to allow the court to properly exercise its

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discretion.' "]; People v . Leon (2016) 243 Cal.App.4th 1003, 1026 ["Relief from a trial court's misunderstanding of its sentencing discretion is available on direct appeal when such misapprehension is affirmatively demonstrated by the record."].)

Here, there is no suggestion in the record that the trial court was unaware of, or misunderstood the scope of, its recently granted discretion to strike the section 12022.5(a) enhancements. To the contrary, it is clear the court was well aware of its discretion, as it expressly discussed. The court discussed many factors in mitigation and detailed the course of its difficult and thorough deliberations in determining what it considered the appropriate sentence in a very serious case. Due to the mitigating factors, the court ultimately chose to impose midterm enhancements and concurrent terms, resulting in an eight-year sentence, less than half the 17-year-four-month recommended sentence. In sum, defendant got the leniency he argued for, even if it was not produced by striking the enhancements.

We disagree with defendant's representation of the trial court's statements as "apparent ruling[s]." Defendant points to this italicized language by the court—"And what I have to determine at this time and I certainly recognize I have the discretion to dismiss the enhancement, the Penal Code Section 12022.5(a) and I think it is appropriate to do so and I appreciate having the ability to do so, because I don't think it is appropriate sometimes to impose that particular enhancement in some cases." (Italics added.) However, in the context of the entire discussion, it is clear the court was expressing its belief that, in general , courts should have the discretion to strike firearm enhancements because they are not always appropriate—"I don't think it is appropriate sometimes to impose that particular enhancement in some cases"— not its belief that they were not appropriate in this case. (Italics added.) This conclusion is fully supported by the remainder of the court's discussion.

Finally, we see no abuse of discretion in the court's decision to impose the enhancements. ( People v . Superior Court ( Alvarez ) (1997) 14 Cal.4th 968, 977-978 [unless defendant clearly shows that a sentencing decision was irrational or arbitrary, the

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trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review].) Defendant fired shots at an occupied vehicle. He did not know the victims; he was simply suspicious and therefore followed them and shot at them as they tried to flee out of fear. The bullet he shot into their vehicle penetrated the back seat, lodging not far from the driver's headrest. The jury concluded these were not acts of self-defense. In addition, defendant had suffered a prior serious felony juvenile adjudication and many subsequent offenses, and he was charged with offenses committed after the current incident. We cannot say the court's well-reasoned decision was irrational or arbitrary.

The judgment is affirmed.