Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI024236. J. David Mazurek, Judge.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
A jury found defendant guilty of three counts of assault with a firearm upon a peace officer. (Pen. Code, § 245, subd. (d)(1).) With respect to all three counts, the jury found true the allegations that defendant personally used a firearm during the commission of the assaults. (§§ 12022.53, subd. (b), 12022.5, subd. (a).) The trial court sentenced defendant to state prison for a term of 16 years. Defendant makes five contentions. First, defendant asserts that the evidence supporting his three convictions for assault (§ 245, subd. (d)(1)), does not meet the substantial evidence standard. Second, defendant contends that the prosecutor committed misconduct. Third, defendant asserts that the trial court improperly instructed the jury. Fourth, defendant contends that his sentence violates the constitutional prohibitions against cruel and unusual punishment. Fifth, defendant contends that his credits for time served were incorrectly calculated. We affirm the judgment as modified in this opinion.
All further statutory references will be to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On May 5, 2006, code enforcement officers and San Bernardino County Sheriff’s deputies went to defendant’s father’s house, in the City of Hesperia, to serve an abatement warrant. The abatement warrant accused defendant’s father of violating the Hesperia Municipal Code by keeping trash and debris, such as tires, on his property. The abatement warrant authorized the City of Hesperia to enter defendant’s father’s property to remove the trash and debris.
Deputies Alcala and Hardin, accompanied by a code enforcement officer, approached the front door of defendant’s father’s residence. The deputies and officer spoke with defendant’s father, who was in a wheelchair. San Bernardino County Sheriff’s Sergeant Bowman, who was standing in the driveway of the residence, heard arguing at the front door, so he walked towards the house. When Sergeant Bowman was near the front door, he saw defendant standing next to his father. Defendant’s father was quiet, but defendant yelled, “‘This warrant is not valid. Get off the property.’”
Deputy Acala said that he was going to leave the warrant on a wall or ledge in the entryway of defendant’s father’s house. Deputy Acala stepped inside the house to leave the warrant. At that point, defendant stepped away or reached behind a wall, and retrieved a shotgun. Defendant raised the shotgun to his shoulder area, racked the shotgun, and pointed it at the deputies, sergeant, and code enforcement officer. Deputy Alcala drew his gun, and the law enforcement officers backed out of the house. After the law enforcement officers exited the house, defendant, or another person, closed and locked the front door of the residence.
Sergeant Bowman spoke with defendant through the front door of the residence. Defendant continued to say that the warrant was not valid. After approximately one hour, defendant, or another person, opened the front door of the residence. Defendant was arrested.
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends that the evidence supporting his convictions for assaulting peace officers with a firearm does not meet the substantial evidence standard. Specifically, defendant disputes that there is sufficient evidence to support a finding that the shotgun was loaded and operable. We disagree.
“‘“In reviewing a criminal conviction challenged as lacking evidentiary support, ‘“the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.]’ [Citation.]” [Citations.] “An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citation.]” [Citation.]’ [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1014-1015.)
“California courts have often held that a defendant’s statements and behavior while making an armed threat against a victim may warrant a jury’s finding the weapon was loaded.” (People v. Rodriguez (1999) 20 Cal.4th 1, 12.)
Defendant’s father testified that defendant was angry when Deputy Acala entered the residence. When the deputy entered the residence, defendant said, “‘Don’t come into the house. You have no permission to come into the house.’” Sergeant Bowman testified that defendant held a shotgun at his shoulder and racked the gun. Deputy Hardin testified that he too saw defendant rack the shotgun and point it at the law enforcement officers. Deputy Hardin took control of the shotgun after defendant’s arrest. Deputy Hardin racked the chamber open, and a bird shot shell ejected. In total, Deputy Hardin removed one round from the shotgun chamber and four rounds from the firing tube. Deputy Hardin testified that the shotgun appeared operable when he took control of it. Deputy Short recognized the firearm as a Winchester pump shotgun that was typically used for hunting birds. Deputy Short reviewed a photograph of the shotgun, and testified that the gun was ready to be fired, with a second round of ammunition “just ready to go right back in.”
When testifying about the shotgun, Deputy Short stated that the gun could hold two rounds with one additional round in the chamber, or, if modified, four rounds with one additional round in the chamber.
The evidence that the gun appeared operable and “ready to go, ” combined with defendant’s act of racking the shotgun, so that the ammunition would be in the chamber, supports a logical inference that the gun was loaded and operable. If the gun was not loaded or operable, and defendant simply wanted to scare the deputies, then he most likely would not have racked the gun, and the gun would not have appeared ready to be fired when found by the deputy after defendant’s arrest. In sum, substantial evidence supports the jury’s verdict.
Defendant asserts that substantial evidence does not support his convictions because there is no direct evidence that the shotgun was loaded or operable. Specifically, defendant points out that the gun was never fired or test-fired, and no one saw ammunition in the shotgun when defendant racked it. “The question[s] of whether or not the gun was loaded [and operable are] question[s] for the jury, and the prosecution can establish it by circumstantial evidence. [Citation.]” (People v. Orr (1974) 43 Cal.App.3d 666, 672; see also People v. Rodriguez, supra, 20 Cal.4th at p. 12.) In other words, direct evidence is not required in order for a jury to properly find that a weapon was loaded and operable. Accordingly, we do not find defendant’s argument persuasive.
Next, defendant asserts that the circumstantial evidence did not support a finding that the shotgun was loaded and operable. Defendant contends that he did not threaten to shoot the law enforcement officers, and therefore, a reasonable inference cannot be drawn that the shotgun was loaded and operable. Defendant’s argument is not persuasive because it focuses on the lack of evidence in the prosecution’s case rather than the inferences that the jury might have drawn. As we noted ante, when Deputy Hardin recovered the shotgun, it was loaded with multiple rounds of ammunition-one round was ready to be fired, and a second round was “ready to go.” A reasonable trier of fact could infer that the shotgun was ready to be fired when the deputy found it, because the gun was loaded when defendant pointed it at the officers. Therefore, the circumstantial evidence is sufficient to support defendant’s conviction.
Finally, defendant cites People v. Morris (1988) 46 Cal.3d 1, 21 (disapproved on other grounds by In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5), for the following rule: “A reasonable inference... ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶]... A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.’ [Citation.]” Defendant asserts that the trier of fact could only speculate that the shotgun was loaded and operable.
Defendant’s argument fails to appreciate the difference between circumstantial evidence and speculation. (See People v. Story (2009) 45 Cal.4th 1282, 1298-1299 [discussing speculation and circumstantial evidence].) The following circumstantial evidence supports a reasonable inference that the gun was loaded and operable: (1) when Deputy Hardin recovered the shotgun, it was loaded with multiple rounds of ammunition-one round was ready to be fired, and a second round was “ready to go”; and (2) defendant raised the shotgun to his shoulder area, racked the shotgun, and pointed it at the deputies, sergeant, and code enforcement officer. It is from the foregoing circumstantial evidence that a trier of fact could reasonably infer that the shotgun was loaded and operable. Consequently, we are not persuaded that a trier of fact could only speculate that the shotgun was loaded and operable.
B. PROSECUTORIAL MISCONDUCT
1. SECTION 1118.1 MOTION
Defendant contends that the prosecutor committed misconduct by misleading the court during defendant’s motion for a judgment of acquittal (§ 1118.1). Specifically, defendant asserts that the prosecutor misled the trial court when she argued that circumstantial evidence supported a finding that the shotgun was loaded. The claim of prosecutorial misconduct was not raised in the trial court, and therefore was waived. (People v. Lucas (1995) 12 Cal.4th 415, 471.) Accordingly, we do not address this contention any further.
2. CLOSING ARGUMENTS
Defendant contends that the prosecutor committed misconduct during closing arguments when she misstated the facts and appealed to the jurors’ emotions. The claim of prosecutorial misconduct was not raised in the trial court, and therefore was waived. (People v. Lucas, supra, 12 Cal.4th at p. 471.)
Defendant did object during the prosecution’s rebuttal closing argument on the basis that the argument was irrelevant and improper rebuttal.
3. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that his trial counsel was ineffective for failing to object to the prosecutor’s alleged acts of misconduct. We disagree.
“A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel.” (People v. Lopez (2008) 42 Cal.4th 960, 966.) “‘In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶]... under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or failed to act in the manner challenged, ” an appellate claim of ineffective assistance of counsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’ [Citation.]” (Ibid.)
Defendant contends that the prosecutor committed misconduct by (1) stating that three deputies testified defendant pointed the shotgun at their heads, when the record reflects that only Sergeant Bowman testified the gun was pointed at his head; (2) arguing that Deputy Hardin’s testimony reflected that the shotgun was operable and not missing any vital components, when Deputy Hardin did not testify to such facts; (3) arguing that the shotgun was loaded when defendant pointed it at the deputies, because it would have been meaningless to rack an unloaded shotgun-defendant asserts there is no evidence that (a) the gun was loaded, or (b) it would have been meaningless to rack an unloaded gun; (4) arguing that the evidence reflected the shotgun was ready to be fired, when other evidence contradicted that the gun was ready to be fired; and (5) appealing to the jurors’ emotions by arguing that defendant used his wheelchair-bound father as a shield.
Defendant’s trial counsel’s reasons for not objecting to the alleged misconduct do not appear in the record. We believe that there could be a tactical explanation for trial counsel choosing not to object. (See People v. Farnam (2002) 28 Cal.4th 107, 202 [similar conclusion].) For instance, “defense counsel may simply have desired not to highlight the [prosecutor’s] comment[s] by objecting.” (People v. Gurule (2002) 28 Cal.4th 557, 610.) In sum, we presume that defense counsel’s performance fell within the wide range of professional competence, and that counsel’s inactions can be explained as a matter of sound trial strategy. Therefore, we reject defendant’s claim of ineffective assistance of counsel.
C. JURY INSTRUCTIONS
Assault is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.)
Defendant contends that the trial court erred by not instructing the jury that “present ability, ” for purposes of assault with a firearm, means that the firearm must be loaded and operable. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 [declining to address the viability of the long-held rule that a gun must be loaded and operable to complete the crime of assault with a firearm].) We disagree.
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
We review alleged instructional errors pursuant to the independent, or de novo, standard of review. (People v. Posey (2004) 32 Cal.4th 193, 218.)
The trial court instructed the jury that, in order to find defendant guilty of assault, it must find that when defendant acted “he had the present ability to apply force with a firearm to a person.” The court explained that the term “apply force” means “to touch in a harmful or offensive manner.” In other words, the trial court instructed the jury that the defendant must have had the ability to touch the victims with the firearm in order for defendant to be found guilty of assault. The foregoing instructions adequately informed the jury on the principles of law raised by the evidence, because they explained that the gun had to be capable of being fired or used as a bludgeon, i.e., capable of touching the victims. In sum, we conclude that the trial court did not err.
Defendant asserts that the trial court’s instructions were inadequate because the definition of “firearm” was confusing and misleading. When the trial court instructed the jury on the offense of assault, it said, “The following term firearm is defined in another instruction to which you should refer.” The definition of “firearm” given to the jury was encompassed within the enhancement instruction, which provided, “A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion. [¶] A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting. A firearm does not need to be loaded.” Defendant contends that the instructions were misleading because they implied that a firearm does not need to be operable or loaded in order for a defendant to be found guilty of assault with a firearm.
Defendant’s argument is not persuasive because he is grafting the trial court’s definition of “firearm” onto the element of “present ability.” The trial court’s instructions informed the jury that a firearm is still considered a firearm even if it is unloaded or inoperable. The trial court did not instruct the jury that the element of “present ability” could be satisfied with evidence of an unloaded, inoperable firearm. To the contrary, the trial court instructed the jury that “present ability to commit a violent injury, ” means that the defendant must have been able to touch the victims with the firearm in a harmful or offensive manner. In sum, we are not persuaded that the instructions were confusing or misleading.
D. CRUEL AND UNUSUAL PUNISHMENT
Defendant contends that his prison sentence violates the constitutional prohibitions against cruel and unusual punishment. Specifically, defendant asserts that he was mentally impaired at the time of the assaults, as evinced by the finding that he was incompetent to stand trial and committed to Patton State Hospital, on July 20, 2006, and therefore, his 16-year sentence is disproportionate to the crimes committed. We disagree.
A punishment may violate the California constitutional prohibition against cruel and unusual punishment “‘if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’” (People v. Dillon (1983) 34 Cal.3d 441, 478.) The United States constitutional prohibition against cruel and unusual punishment is violated when a punishment, by its “‘“excessive length or severity [is] greatly disproportioned to the offenses charged.” [Citations.]’ [Citations.]” (Id. at p. 478, fn. 25.)
Both the state and federal tests require examination of the offense and the offender. In other words, the determination of whether a punishment is cruel and unusual is fact specific, and therefore, must be raised in the trial court. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) Defendant did not raise the issue in the trial court, and therefore, has waived it for appeal.
Nonetheless, in order to avoid an ineffective assistance of counsel claim, we will briefly address the merits of defendant’s argument.
The trial court sentenced defendant to the midterm of six years for the assault conviction in count 1. (§ 245, subd. (d)(1).) As required by statute, the trial court imposed a consecutive 10-year sentence for the enhancement of personally using a firearm. (§ 12022.53, subd. (b).) The trial court stayed the four-year sentence for defendant’s personal use of a firearm. (§ 12022.5, subd. (a).) The remaining sentences for the assaults and firearm enhancements in counts 2 and 3 were either stayed or imposed concurrently to the sentence in count 1. Accordingly, defendant’s total sentence is 16 years-the time required for one assault and one firearm enhancement. Since defendant was convicted of three assaults with six firearm enhancements, and is only serving the time for one assault and one enhancement, we do not find the sentence to shock the conscience and offend fundamental notions of human dignity; nor do we find that the sentence is excessively lengthy or severe in proportion to the offenses charged.
E. CREDITS
Defendant asserts that the trial court erred when it calculated his credits for time served and his conduct credits. Specifically, defendant contends that the trial court did not properly calculate the credits he earned while housed in Patton State Hospital. The People support defendant’s argument. We agree.
Individuals detained prior to felony sentencing may earn conduct credits for time spent in penal institutions. (§ 4019.) However, a person may not earn conduct credits for time spent receiving treatment in non-penal institutions, such as state hospitals. (People v. Bryant (2009) 174 Cal.App.4th 175, 182.) When a person is held in a state hospital, but is no longer receiving treatment, then that person is entitled to conduct credits, because the circumstances of the confinement are essentially penal. (Id.)
The trial court found defendant incompetent to stand trial on July 20, 2006, and committed defendant to Patton State Hospital. Defendant was admitted to Patton on August 16, 2006. On October 10, 2006, staff at Patton found defendant capable of understanding the charges against him. Defendant was released from Patton on October 21, 2006. The probation report did not award defendant credits for the time spent at Patton between October 10 and 21, 2006, and the trial court repeated the mistake.
Defendant was in custody for 316 days, including the entire time he was at Patton. Defendant received treatment at Patton for 55 days, and therefore those days must be subtracted from the 316 day total for the sake of calculating conduct credits, resulting in 261 actual custody days. Defendant was permitted to accrue a maximum of 15 percent conduct credits. (§ 2933.1.) Fifteen percent of 261 days is 39.15 days, which is rounded down to 39 days. Accordingly, defendant should have been credited with 316 days of actual custody credit and 39 days of conduct credit, for a total presentence credit of 355 days.
In sum, the trial court erred when it calculated defendant’s total presentence credit as 353 days. The abstract of judgment must be amended to reflect that defendant’s total presentence custody credit is 355 days.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment which reflects a conduct credit award of 39 days, and a total presentence credit of 355 days, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur McKINSTER Acting P. J., RICHLI J.