People v. Barnes CA3 ( 2022 )

Filed 8/16/22 P. v. Barnes CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C093243
v. (Super. Ct. No. 20FE004323)
STEVEN KENNETH BARNES,
Defendant and Appellant.
A jury convicted defendant Steven Kenneth Barnes on two counts of assault with a
firearm (counts two and three), being a felon in possession of a firearm (count four),
being a felon in possession of ammunition (count five), possession of heroin and cocaine
for sale (count six), and possession of heroin and cocaine while armed with a loaded,
operable firearm (count seven). The jury found true allegations that in committing the
count two crime, defendant personally used a firearm and personally inflicted great
bodily injury. It also found true an allegation that in committing the count six crime,
defendant was personally armed with a firearm. The trial court sentenced defendant to an
aggregate prison term of 26 years.
1
Defendant now contends (1) the jury’s true finding on the count six firearm
enhancement is not supported by sufficient evidence; (2) there is insufficient evidence to
support the count seven conviction for possession of heroin and cocaine while armed
with a loaded, operable firearm; (3) the trial court should have struck the prior serious
felony conviction allegation under Penal Code section 13851 ; (4) the trial court erred in
imposing a four-year middle term for the count six firearm enhancement; and (5) the
count three sentence for assault with a firearm should have been stayed under section
654.
Regarding defendant’s fourth contention that the trial court erred in imposing a
four-year middle term for the count six firearm enhancement, the Attorney General
agrees, and we do too. Section 1170.1 required the trial court to impose one-third the
middle term on the section 12022, subdivision (c) enhancement. Defendant’s other
contentions lack merit. We will modify the judgment to impose a sentence of one year
four months on the count six firearm enhancement and affirm the judgment as modified.
BACKGROUND
A man named Jarius met a prostitute named Jenny online and arranged to meet at
Jenny’s apartment. Shortly after Jarius arrived at the apartment, defendant called Jenny.
Defendant lived in an apartment near Jenny and defendant and Jenny had been in a
romantic relationship for over 10 years.
Defendant told Jenny he was outside her apartment door and to open the door.
Jenny told Jarius to stay in her bedroom. She allowed defendant into the apartment,
thinking she could get rid of him. But when defendant did not appear to believe her
statement that no one was in her apartment, Jenny told Jarius to come out of the bedroom.
1 Undesignated statutory references are to the Penal Code.
2
Defendant had a gun, which Jarius described as a black semiautomatic pistol.
Defendant pointed the gun at Jarius’s face and told Jarius not to look at him. Jarius
testified that defendant hit him on the back of the head with the gun, but Jarius did not
sustain any injuries to the back of his head. Jenny said defendant hit Jarius with his hand;
she was not sure if the same hand was holding the gun.
Defendant ordered Jarius to get on the ground and stomped on Jarius’s shoulder,
back, and head. Jarius said defendant tried to get into Jarius’s pants pockets, where Jarius
had his wallet, car key, and cell phone. Jenny testified that defendant did not reach for
Jarius’s pockets. Neither defendant nor Jenny asked for Jarius’s car key, wallet, or cell
phone.
Jarius did not have any weapons on him. He testified he kept his hands in his
pants pockets to prevent defendant and Jenny from taking his property and neither Jenny
nor defendant put a hand inside his pants pocket. Jenny asked Jarius, “What are you
reaching for?” She patted down both of Jarius’s legs because she thought he had a gun.
But she never saw a gun on Jarius and did not feel anything consistent with a gun or knife
on him.
Defendant and Jarius struggled on the ground and Jarius got to his knees.
Defendant stood in front of Jarius, said “goodbye,” and shot Jarius in his left arm.
Defendant ran out of the apartment.
Jarius ran outside to his car but his car key was not in his pants pocket. He still
had his wallet and cell phone. He called 911 and said he left his car key in the apartment
but also that he had been robbed.
Jarius provided inconsistent statements to law enforcement officers. He told one
officer he was hit in the face with the gun and told another he was hit on the back of the
head with the gun. He told an officer his car key fell out of his pocket during a struggle
and told another officer he did not know if his key was taken from him.
3
SWAT officers took defendant into custody. In defendant’s apartment, detectives
found a loaded silver revolver in a container next to the bed. The revolver was operable,
and the serial number had been removed. Numerous live bullets that would fit in the
revolver were found in the bedroom closet. Cocaine and heroin were found in baggies or
small containers on the kitchen table. About 30 bindles of suspected black tar heroin
were found in a tackle box in the kitchen. The People’s narcotics expert opined that
heroin and cocaine in the quantities involved and as packaged would be possessed for
sale and not personal use.
Jarius’s car key was found under the area rug in Jenny’s living room. There was a
slug from a semiautomatic pistol near the car key. The slug was not fired from the silver
revolver found in defendant’s apartment.
Defendant admitted that on January 4, 2000, he was convicted of carjacking
(§ 215, subd. (a)) with a firearm use enhancement (§ 12022.5, subd. (a)) in Alameda
County, that the offense was a serious felony under section 1192.7, subdivision (c), and
that he came within the provisions of the three strikes law.
The jury acquitted defendant of attempted robbery (§§ 664/211—count one), but
convicted him on two counts of assault with a firearm (§ 245, subd, (a)(2)—counts two
and three), being a felon in possession of a firearm (§ 29800, subd. (a)(1)—count four),
being a felon in possession of ammunition (§ 30305, subd. (a)(1)—count five),
possession of heroin and cocaine for sale (Health & Saf. Code, § 11351—count six), and
possession of heroin and cocaine while armed with a loaded, operable firearm (Health &
Saf. Code § 11370.1, subd. (a)—count seven). The jury found true the allegation that in
committing the count two crime, defendant personally used a firearm (§ 12022.5, subd.
(a)) and personally inflicted great bodily injury upon Jarius (§ 12022.7, subd. (a)). It also
found true the allegation that in committing the count six crime, defendant was personally
armed with a firearm (§ 12022, subd. (c)). The jury found not true the allegation that in
committing the count three crime, defendant personally used a firearm as a bludgeoning
4
instrument (§ 12022.5, subds. (a), (d)). The trial court sentenced defendant to an
aggregate prison term of 26 years.
DISCUSSION
I
Defendant challenges the sufficiency of the evidence supporting the jury’s true
finding on the section 12022, subdivision (c) firearm enhancement on the count six
conviction, i.e., that he was personally armed with a firearm in the commission of
possessing heroin and cocaine for sale.
In determining whether sufficient evidence supports a conviction, “we do not
determine the facts ourselves. Rather, we ‘examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—
evidence that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.] [¶] . . . ‘[I]f the circumstances reasonably justify
the jury’s findings, the judgment may not be reversed simply because the circumstances
might also reasonably be reconciled with a contrary finding.’ [Citation.]” (People v.
Nelson (2011) 51 Cal.4th 198, 210.) We do not reweigh evidence. (Ibid.) This standard
also applies to insufficient evidence claims involving circumstantial evidence. (People v.
Manibusan (2013) 58 Cal.4th 40, 87.) “ ‘We “must accept logical inferences that the jury
might have drawn from the circumstantial evidence.” ’ ” (Ibid.) The effect of this
standard of review is that a defendant challenging the sufficiency of the evidence to
support his or her conviction bears a heavy burden on appeal. (People v. Powell (2011)
194 Cal.App.4th 1268, 1287.)
The Dangerous Weapons’ Control Law (§ 12000 et seq.), of which section 12022
is a part, was enacted “ ‘[t]o deter persons from creating a potential for death or injury
that results from the very presence of a firearm at the scene of a crime.’ ” (People v.
5
Bland (1995) 10 Cal.4th 991, 996, 1006 (Bland).) “Obviously, a firearm that is available
for use as a weapon creates the very real danger it will be used.” (People v. Mendival
(1992) 2 Cal.App.4th 562, 573.) Consequently, a defendant is “armed” within the
meaning of section 12022 and is subject to enhanced punishment if he or she has a
firearm available for use, either offensively or defensively, to further the commission of
the underlying felony. (Bland, at pp. 997-999.)
Section 12022, subdivision (c) subjects a person who is personally armed with a
firearm in the commission of a violation of Health and Safety Code section 11351 to
additional penalties. The term “armed” in subdivisions (a) and (c) has been interpreted
identically. (People v. Delgadillo (2005) 132 Cal.App.4th 1570, 1574 (Delgadillo); see
People v. Pitto (2008) 43 Cal.4th 228, 231, 240.) To be personally armed, the defendant
must actually commit the prohibited conduct—i.e., carry the firearm or have it available
for offensive or defensive use—as opposed to being vicariously liable for the conduct of
another. (Bland, supra, 10 Cal.4th at p. 998, fn. 3; People v. Smith (1992) 9 Cal.App.4th
196, 204, 207, fn. 21; see People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th
1007, 1013.) Personally armed does not require the defendant to use or carry the firearm.
(Smith, at p. 204.)
In Bland, law enforcement officers found rock cocaine, a scale, and plastic baggies
in the defendant’s bedroom closet and unloaded firearms, including an assault rifle, under
his bed. (Bland, supra, 10 Cal.4th at pp. 995, 1003.) Defendant was in a police car
outside the house at the time of the search. (Id. at p. 995.) The jury convicted defendant
of possession of cocaine base for sale and found true a section 12022, subdivision (a)
allegation of being armed with an assault weapon. (Bland, at pp. 995-996.) The issue
was whether defendant was armed within the meaning of section 12022, subdivision (a)
when he was not present when the police seized the cocaine base and firearms. (Bland, at
p. 995.)
6
The California Supreme Court held that “[w]hen the prosecution has proved a
charge of felony drug possession, and the evidence at trial shows that a firearm was found
in close proximity to the illegal drugs in a place frequented by the defendant, a jury may
reasonably infer (1) that the defendant knew of the firearm’s presence, (2) that its
presence together with the drugs was not accidental or coincidental, and (3) that, at some
point during the period of illegal drug possession [which is a continuing crime], the
defendant was present with both the drugs and the firearm and thus that the firearm was
available for the defendant to put to immediate use to aid in the drug possession. These
reasonable inferences, if not refuted by defense evidence, are sufficient to warrant a
determination that the defendant was ‘armed with a firearm in the commission’ of a
felony within the meaning of section 12022.” (Bland, supra, 10 Cal.4th at pp. 999, 1001-
1003.) It was immaterial whether the defendant was present when police seized the
firearms and cocaine base. (Id. at p. 1000.)
In Delgadillo, the defendant was convicted of manufacturing methamphetamine
and the jury found true a section 12022, subdivision (c) enhancement. (Delgadillo,
supra, 132 Cal.App.4th at p. 1572.) The operation in which the defendant was involved
included multiple locations. (Id. at p. 1574-1575.) Cash proceeds and firearms were kept
at the defendant’s house, raw material and lab equipment were kept in vehicles parked in
front of the house, the lab was located at a different location, and other equipment and the
finished product were stored in a yet another location. (Id. at p. 1575.) The appellate
court held that sufficient evidence supported the jury’s true finding on the section 12022,
subdivision (c) allegation because the firearms found in the defendant’s bedroom were in
close proximity to the cars outside the defendant’s house, in which the defendant and his
cohorts stored lab equipment and raw material for their operation, and the firearms were
available to the defendant to use at any time during the manufacturing process.
(Delgadillo, at p. 1575; see People v. Bradford (1995) 38 Cal.App.4th 1733, 1736-1739.)
7
Defendant contends there was no evidence he had firearms available to him and
ready for his use in the commission of the crime of drug possession at the time of his
arrest because police confronted him outside his apartment and no officer saw defendant
inside the apartment. But defendant need not be present when the police discovered the
revolver and narcotics inside his apartment in order for him to be armed within the
meaning of section 12022. (Bland, supra, 10 Cal.4th at pp. 995, 1000-1004.)
SWAT officers called defendant out of apartment No. 5. Jenny testified that
defendant lived alone in that apartment. Detectives found a loaded revolver in a
container next to the bed in the master bedroom. Heroin and cocaine, in small plastic
containers or baggies, were found in the kitchen. Defendant does not challenge his
conviction on count six for possession of heroin and cocaine for sale. Drug possession is
a continuing offense. (Bland, supra, 10 Cal.4th at p. 999.) Based on evidence that
defendant was physically present with the heroin, cocaine and revolver, and that the
loaded revolver was kept next to defendant’s bed, the jury could reasonably find the
revolver was readily available to defendant to aid his commission of the drug offense.
(Id. at pp. 1000, 1003-1004; Delgadillo, supra, 132 Cal.App.4th at pp. 1574-1575.)
Nevertheless, citing People v. Sanchez (2021) 66 Cal.App.5th 14 and People v.
Balbuena (1992) 11 Cal.App.4th 1136, defendant argues no rational trier of fact could
find beyond a reasonable doubt that the revolver was available for immediate use in the
commission of the drug possession offense because the revolver and narcotics were in
separate rooms. In Sanchez, the court held a firearm was not available for immediate use
because defendant had methamphetamine with him in the cab of a pickup truck but the
loaded rifle was in a bag under a board in the bed of the truck. (Sanchez, at p. 16.) And
in Balbuena, a firearm was not available for immediate use because drugs were found
among clothing in one suitcase while an unloaded pistol was found among clothing in
another latched but not locked suitcase. (Balbuena, at p. 1138.)
8
Here, although defendant’s revolver was in a container and the drugs were in
another room, the revolver was loaded and there was evidence someone “could grab it
fast.” Under the circumstances, we decline to say the jury could not reasonably infer that
defendant knew of the firearm’s presence, that its presence together with the drugs was
not accidental or coincidental, and that, at some point during the period of illegal drug
possession, defendant was present with both the drugs and the firearm and thus that the
firearm was available for defendant to put to immediate use to aid in the drug possession.
(Bland, supra, 10 Cal.4th at pp. 999, 1001-1003.) Those reasonable inferences are
sufficient to support the firearm enhancement. (Ibid.)
II
Defendant also challenges the sufficiency of the evidence supporting the count
seven conviction for possession of heroin and cocaine while armed with a loaded,
operable firearm.
Health & Safety Code section 11370.1, subdivision (a) defines “armed with” as
“having available for immediate offensive or defensive use.” (Health & Saf. Code,
§ 11370.1, subd. (a).) The definition is consistent with the interpretation of “armed” in
section 12022. (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 990
(Martinez), disapproved on another ground in People v. Montellano (2019)
39 Cal.App.5th 148, 155-156; accord Bland, supra, 10 Cal.4th at p. 995.) A defendant
need not carry a firearm on his or her person to be armed under Health and Safety Code
section 11370.1. (Martinez, at p. 990.)
In People v. Williams (2009) 170 Cal.App.4th 587, the appellate court found
sufficient evidence supporting the defendant’s conviction for violating Health and Safety
Code section 11370.1 where a loaded firearm was found under a pillow about a foot away
from the computer the defendant had been using. (Williams, at pp. 595, 624.)
Methamphetamine and another loaded firearm were found in the garage, 10 or 15 feet
from the defendant’s room. (Id. at p. 624.) In Martinez, the defendant was disqualified
9
from resentencing under Proposition 36, the Three Strikes Reform Act of 2012 (as
approved by voters, Gen. Elec. (Nov. 6, 2012), because he had a firearm available for
immediate offensive or defensive use during the commission of the underlying offense.
(Martinez, supra, 225 Cal.App.4th at pp. 992-993.) Law enforcement officers found the
defendant in the kitchen with a bindle of heroin and a shotgun was either in the same
room or in one of the bedrooms, and other firearms were found in a closet in the
residence. (Id. at pp. 984-985, 995.)
Defendant contends there was no evidence he had immediate access to the
revolver because no officer testified to his presence inside the apartment at any time. But
for the reasons we have explained, we decline to hold that the jury could not reasonably
find from the evidence that the loaded revolver found next to defendant’s bed was
available for defendant’s immediate use.
III
Defendant further argues the trial court abused its discretion in declining to
dismiss a 20-year-old prior serious felony conviction allegation under section 1385.
On its own motion and in furtherance of justice pursuant to section 1385, a trial
court may dismiss an allegation or finding under the three strikes law that the defendant
was previously convicted of a serious and/or violent felony. (People v. Carmony (2004)
33 Cal.4th 367, 373 (Carmony); People v. Williams (1998) 17 Cal.4th 148, 158
(Williams); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.) There is a
strong presumption that a sentence that conforms with the sentencing norm is proper,
dismissal of a strike is a departure from the three strikes sentencing norm, and a court
must follow stringent standards to depart from the norm. (Carmony, at pp. 377-378.) In
ruling on a motion to strike an allegation or finding that a defendant has previously been
convicted of a serious and/or violent felony, a trial court “must consider whether, in light
of the nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects, the
10
defendant may be deemed outside the [three strikes] scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (Id. at p. 377.)
We review the trial court’s section 1385 ruling under the deferential abuse of
discretion standard. (Carmony, supra, 33 Cal.4th at pp. 373-376; Williams, supra,17 Cal.4th at p. 162.) We presume the trial court’s section 1385 ruling is proper.
(Carmony, at pp. 376-378.) The party attacking the sentence bears the burden of clearly
showing that the trial court’s ruling is unreasonable in light of the applicable law and the
relevant facts. (Id. at p. 376; Williams, at p. 162.) Where the trial court, aware of its
discretion, “ ‘balanced the relevant facts and reached an impartial decision in conformity
with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have
ruled differently in the first instance.’ ” (Carmony, at p. 378.) We do not substitute our
judgment for that of the trial court and will not reverse the trial court’s sentencing
decision merely because reasonable people might disagree. (Id. at pp. 377-378.)
Here, the record shows the trial court was aware of its discretion under section
1385, and considered the factors set forth in Carmony. Defendant notes that the trial
court incorrectly indicated that defendant hit Jarius in the head with the gun and that it
looked like defendant tried to kill Jarius, and correctly asserts that a trial court may not
consider improper factors in declining to dismiss a strike allegation. But the totality of
the trial court’s reasons establishes the trial court did not abuse its discretion.
Defendant was a felon who possessed two firearms and ammunition. He was
armed with a loaded black semiautomatic pistol when he entered Jenny’s apartment. He
also had a loaded silver revolver and ammunition in his apartment. In addition, he
possessed cocaine and heroin for sale. Jarius testified that defendant pointed a gun at
Jarius’s face and ordered Jarius to get on the ground. Although the jury did not find true
the allegation that defendant bludgeoned Jarius with the semiautomatic pistol, there was
11
uncontroverted evidence that defendant hit and kicked Jarius. Defendant also shot Jarius
after telling him “goodbye.”
With regard to his prior strike conviction, defendant admitted that on January 4,
2000, in Alameda County, he was convicted of carjacking, he personally used a firearm
in the commission of that crime, and the conviction constituted a serious felony under the
three strikes law. Defendant was 25 years old at the time of that offense. About two
years before the conduct underlying his 2000 conviction, defendant was convicted of
possession of cocaine base for sale (Health & Saf. Code, § 11351.5), served three days in
county jail, and was granted three years of probation. “[O]lder strike convictions do not
deserve judicial forgiveness unless the defendant has used them as a pivot point for
reforming his ways . . . .” (People v. Mayfield (2020) 50 Cal.App.5th 1096, 1107.)
Defendant did not do so.
As for his background, character and prospects, defendant’s family submitted
letters supporting defendant and it appeared defendant was a loving father. He was
granted a certificate of rehabilitation under section 4852.13 in 2015 for his carjacking and
drug possession offenses. However, as the trial court found, in the present 2020 offenses,
he again committed crimes involving firearms and possession of narcotics for sale.
Defendant began using cocaine in 2015 or 2016 but never participated in a substance
abuse treatment program or drug counseling. The trial court said it appeared defendant
had not learned anything. In addition, defendant was unemployed starting in October
2018 and stopped providing financial support for his minor children. He had no reported
source of income. Moreover, evidence at the trial showed that defendant had previously
hit and threatened to kill Jenny, with whom he had a long-term romantic relationship. He
broke out a window in her apartment and kicked in her front door on previous occasions.
His conduct in the present offenses was consistent with that violent history.
Considering all the circumstances, the trial court did not abuse its discretion in
declining to strike the prior serious felony allegation under section 1385.
12
IV
In addition, defendant contends the trial court erred in imposing a four-year
middle term for the section 12022, subdivision (c) enhancement on count six.
The trial court designated count two as the principal term. On count six, it
imposed one-third the middle term and doubled that prison term because of the prior
strike. It then imposed the middle term of four years for the section 12022,
subdivision (c) firearm enhancement.
Defendant asserts section 1170.1 required the trial court to impose one-third of the
middle term on the section 12022, subdivision (c) enhancement. He is correct and the
Attorney General properly agrees. (§ 1170.1.) We will modify the judgment to strike the
four-year sentence on the section 12022, subdivision (c) enhancement on count six and
substitute in its place a sentence of one year four months in prison, which is one-third the
middle term of four years. (§ 12022, subd. (c).)
V
Defendant next argues the trial court should have stayed the sentence on the count
three conviction for assault with a firearm under section 654 because he acted with a
single objective in committing the two assaults and the two assaults constituted a single
indivisible transaction.
Section 654 protects against multiple punishment where the same act or omission
or “ ‘a course of conduct deemed to be indivisible in time’ ” results in multiple statutory
violations. (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).) Whether a
course of conduct is divisible and therefore gives rise to more than one act or omission
within the meaning of section 654 depends on the defendant’s intent and objective.
(People v. Beamon (1973) 8 Cal.3d 625, 637.) “[I]f all of the offenses were merely
incidental to, or were the means of accomplishing or facilitating one objective, [the]
defendant may be found to have harbored a single intent and may be punished only once.
[Citation] [¶] If, on the other hand, [the] defendant harbored ‘multiple criminal
13
objectives,’ which were independent of and not merely incidental to each other, he [or
she] may be punished for each statutory violation committed in pursuit of each objective,
‘even though the violations shared common acts or were parts of an otherwise indivisible
course of conduct.’ ” (Harrison, at p. 335.)
The California Supreme Court has found multiple punishment permissible where
the defendant had the same objective but committed separate acts (e.g., Harrison, supra,
48 Cal.3d at pp. 335-338; cf. People v.Beamon, supra, 8 Cal.3d at pp. 639-640) and when
the defendant had separate objectives (e.g., People v. Coleman (1989) 48 Cal.3d 112,
162-163). The trial court must stay execution of the sentence on convictions for which
multiple punishment is prohibited under section 654. (People v. Correa (2012)
54 Cal.4th 331, 337.)
We will not reverse the trial court’s determination if there is substantial evidence
to support it. (People v. Brents (2012) 53 Cal.4th 599, 1148.) We review the trial court’s
determination in the light most favorable to the judgment and presume the existence of
every fact the trial court could reasonably deduce from the evidence. (People v. Andra
(2007) 156 Cal.App.4th 638, 640-641.)
Counts two and three charged defendant with committing an assault on Jarius with
a firearm in violation of section 245, subdivision (a)(2). Assault is an unlawful attempt,
coupled with a present ability, to commit a violent injury on the person of another.
(§ 240.) Pointing a gun at a victim is sufficient to establish an assault with a firearm.
(People v. Raviart (2001) 93 Cal.App.4th 258, 266; People v. Laya (1954)
123 Cal.App.2d 7, 16.) Actual physical contact with the victim is not necessary to
commit an assault. (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
Substantial evidence supports the trial court’s finding that the count three act of
assault (hitting Jarius) was separate from the count two act of assault (pointing and
shooting the gun at Jarius) and that section 654 did not apply. Jarius testified that
defendant hit him on the back of the head with the gun; Jenny said defendant hit Jarius
14
with his hand. The two then struggled on the ground, defendant got up, pointed the gun
at Jarius, said goodbye, and shot him. Viewing the evidence in the light most favorable
to the People, the trial court could reasonably find from the evidence that defendant
committed separate acts. Defendant could have stopped his assaultive behavior but chose
not to do so. (People v. Trotter (1992) 7 Cal.App.4th 363, 368.) The trial court could
also have reasonably concluded that defendant harbored separate objectives that were
independent of and not merely incidental to each other. (Ibid.)
DISPOSITION
The judgment is modified to strike the four-year term for the section 12022,
subdivision (c) enhancement on count six and in its place to impose an enhancement term
of one year four months, for a total aggregate prison term of 23 years four months. The
judgment is affirmed as modified. The trial court shall prepare an amended abstract of
judgment and forward it to the Department of Corrections and Rehabilitation.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
HOCH, J.
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