CODRINGTON J.
INTRODUCTION
Dеfendant and appellant, Anthony Esparza Cortez, Jr., a convicted felon, and his friend, Michael Saavedra, conspired to commit murder against Rene Perez, and his son-in-law, Alvino Barrera. While defendant drove, Saavedra fired a gun at Perez and Barrera in another car. Defendant and Saavedra then drove to the home of Guadalupe Valle, Perez's relative by marriage. Armed with a rifle and a handgun, defendant and Saavedra fired more than 30 bullets into the house, which was occupied by 10 people. Defendant admitted having possession of the rifle used in the shooting, and of an assault rifle which is banned in California, as well as several rounds of ammunition.
A jury convicted defendant of five charges: conspiracy to commit murder; being a felon in possession of a firearm; possessing firearms ammunition while prohibited from possessing a firearm; assault with a firearm; and possessing an assault weapon. ( Pen. Code, §§ 182, 187, 245, subd. (a)(2), 1192.7, subd. (c)(8), 12022, subd. (a)(1), 12022.53, subd. (c), 29800, subd. (a)(1), 30305, subd. (a), 30605, subd. (a).)
On appeal, defendant claims the trial court erred in not instructing the jury sua sponte on conspiracy to commit assault with a firearm and conspiracy to shoot at an inhabited dwelling as lesser included offenses of conspiracy to commit murder as charged. Defendаnt also claims the trial court erred in
Finally, defendant asserts four claims of sentencing error, which the People concede. The parties agree the trial court should strike the one-year section 12022, subdivision (a)(1), enhancement as to the assault with a firearm count (count 4). The trial court should also stay under section 654 the one-year section 12022, subdivision (a)(1), enhancement as to the conspiracy count. In addition, under section 654, the trial court should also stay the separate punishment either for count 2 or count 5. Defendant further asserts in supplemental briefing that this court should remand this matter for resentencing on his firearm enhancement ( § 12022.53, subd. (c) ) under recently enacted Senate Bill No. 620 ( (2017-2018 Reg. Sess.) § 2), which amended section 12022.53, subdivision (h). The parties agree in their supplemental briefs that the recent amendment applies in this case retroactively, because the amendment took effect before final judgment.
We accordingly order this matter remanded to the trial court for the purpose
II
STATEMENT OF FACTS
In reviewing instructional error, we consider the evidence in the light most favorable to defendant. ( People v. Millbrook (2014)
A. Prosecution Evidence
Defendant first became friends with Valle at a classic car show. Both men are fans of 1950's automobiles. Perez is married to Valle's wife's cousin. In June 2013, there was a fight among the guests at a party at Perez's house. The combatants included defendant, Saavedra, and Barrera.
Perez and Valle helped break up the fight. Perez and Valle discussed what had happened and agreed there was no ongoing problem. Defendant seemed pleased to leave the party. Perez did not sеe any punches thrown and he thought the dispute had ended.
B. The Offenses
The basis for the conspiracy to commit murder in count 1 involved two separate shooting episodes-assault with a firearm on Perez's vehicle and the shooting of the Valle residence.
On August 17, 2013, Perez and Barrera were on a liquor run when a car stopped in front of them at an intersection. Perez saw a hand outside the car but did not see anything else because it was dark. As Perez drove away, he heard a loud pop that could have been a gunshot оr a car backfiring. Perez did not see any of the car's occupants or whether they threw beer cans out of the car.
At trial, Perez testified he did not remember telling law enforcement about the car and the incident. However, Perez had stated in his police interview that both he and Barrera were in Perez's car at an intersection when a silver 2000 Chevrolet Monte Carlo with 20-inch chrome rims pulled up to their car, and a single shot was fired from the passenger side towards Perez's car. Perez described the passenger as a bald very thin Hispanic man and said that, as the Monte Carlo drove away, both the driver and the passenger tossed out Modelo beer cans.
The pаrties stipulated that a witness would testify that, at the intersection where the Perez shooting took place, a silver two-door Chevrolet Impala pulled up with two Hispanic men inside. The driver was a heavyset man, with a mustache; the passenger was a thin man, with a mustache and a goatee.
C. The Valle Residence Shooting
Later on the evening of August 17, 2013, Valle was at home with his wife and other
Valle's neighbors across the street heard the shots. The father described two Hispanic men, one big and the other "a little bit smaller." The larger man was shooting a rifle. The thinner man may have fired several shots as well. After the shooting stopped, both men got into the car and drove off. The son testified that he only saw а single shooter, next to a white or a beige car with big silver rims. The shooter was a man, age 30 to 35.
Soon after the shooters left, defendant called Valle multiple times to ask him if he was all right. A subsequent police investigation revealed bullet holes in the door and the inside walls of the house, including the living room windows and the bedroom that was closest to the front door. The bullet strike marks were found all the way from the floor to the ceiling. A .40-caliber shell casing was at the scene. No gun or ammunition of that caliber was found during the subsequent search of defendant's and Saavedra's residences.
During police questioning, defendant admitted that he drinks Modelo beer and knows Saavedra, although he had nоt seen him for a while. He also admitted there were shell casings in his Chevrolet Monte Carlo. Defendant was equivocal about the details of the Perez assault but he knew no one had been killed.
D. The Weapons Charges
The parties stipulated that defendant was prohibited from possessing a firearm due to a prior felony conviction. Defendant admitted that two rifles and ammunition found at his house belonged to him. The officers found firearm ammunition in a bedroom and additional ammunition (nine-millimeter) in the garage. The police found a synthetic polymer stock used to modify a weapon to change its appearance. The police also found a Norinco-320 rifle (an Uzi) in defendant's car. At trial, a prosecution's expert testified that the Norinco-320 rifle meets the definition of an assault weapon banned under the California Assault Weapons Act because it has a pistol grip, and a capacity to accept a detachable magazine and a folding stock. Also, the police found a .223-caliber Ruger Mini-14 rifle in the attic of the house.
E. The Defense
The defense argued defendant was not guilty of conspiracy to commit murder because there was no evidence of a conspiratorial agreement to kill or the intent to kill. Concerning the Perez episode, the defense argued that the
Defendant testified that he denied conspiring to kill anyone or intending to kill anyone.
After drinking heavily, defendant, Saavedra, and another man made a beer run. Defendant bought another 30-pack of Modelo beer while Saavedra bought a 30-pack of Bud Light. They returned to the party and played darts. Defendant had three or four shots of tequila; Saavedra drank more because he was losing the darts competition.
After Saavedra and his wife had an argument, she asked everyone to leave. Defendant left the party with Saavedra and again stopped by a liquor store. Saavedra stayed in the car while defendant bought beer. Defendant encountered Barrera, with whom he had the fight in June. Defendant thought the fight was no longer an issue, but Barrera kept repeating, "Hey, bitch. Remember me?" Barrera then threw a beer bottle at defendant but missed.
Defendant drove his car to Perez's house. Defendant wanted to ask Perez about the argument with Barrera. When Perez did not answer, defendant kicked over a motorcycle in anger. Defendant then drove back to the same liquor store and bought a 30-pack of Modelo beers and an 18-pack of Bud Light. At that point, defendant already had 15 to 18 beers.
As they were driving, defendant and Saavedra saw Barrera driving Perez's car in the opposite direction. Without any notice, Saavedra fired a single shot. Afterwards, Saavedra told defendant that he did not intend to shoot anyonе. Barrera drove off in a different direction. Defendant and Saavedra did not pursue him.
F. The Valle Residence Shooting
Defendant and Saavedra noticed police activity and decided to go to Valle's house to evade the police and hide the guns. Defendant drove to the
After the shooting finished, defendant and Saavedra slowly drove off. Defendant was nervous and fumbling with his keys. Saavedra had been scorched by a round that came very close to him. Defendant checked to see if Saavedra was all right. Defendant called Valle and asked why he was shooting at him. Valle said that he could not really talk and that he would call him back later.
III
INSTRUCTION ON CONSPIRACY TO COMMIT ASSAULT WITH A FIREARM OR TO SHOOT AT AN INHABITED DWELLING
Defendant argues the trial court had a sua sponte duty to instruct the jury on two offenses that he argues were necessarily included within the charged offense of conspiracy to commit murder: conspiracy to commit assault with a fireаrm and conspiracy to shoot at an inhabited dwelling. However, neither offense was necessarily included within conspiracy to commit murder as charged. The alleged conspiracy agreement was only to commit murder. There are no allegations defendant conspired or agreed to commit an assault with a firearm or shoot at an inhabited dwelling.
In addition, substantial evidence did not support giving either instruction. At trial, defendant contended he did not commit any offense. He also did not claim he conspired to commit any lesser offense. Based on the evidence that defendant and Saаvedra fired more than 30 bullets into an occupied residence, it was not reasonable for a jury to find that defendant conspired to commit an assault with a firearm or conspired to shoot at an inhabited house, instead of finding defendant conspired to commit murder.
Finally, any error was harmless because there was overwhelming evidence defendant conspired to commit murder when he and Saavedra both simultaneously fired a deluge of bullets into Valle's home.
Count 1 of the charging document alleged that defendant conspired to commit murder in violation of section 187 based on 10 overt acts: (1) defendant and Saavedra armed themselves; (2) defendant drove his car; (3) defеndant pulled his car in front of a car driven by Perez; (4) Saavedra fired one shot at Perez's vehicle; (5) defendant then drove to the Valle residence; (6) defendant and Saavedra exited the car and approached the Valle residence; (7) and (8) both men fired their weapons-about 30 bullets-at the house; (9) defendant and Saavedra then fled the scene; and (10) defendant hid the .223-caliber rifle used in the shooting in his home's attic.
The court instructed the jurors that to find defendant guilty of conspiracy to commit murder as charged, they had to find that defendant and Saavedra agreed intentionally and unlawfully to kill and committed at least one of the overt acts alleged. The court further instructed the jury that the "People have presented evidence of more than one event to prove that the defendant committed this offense [of conspiracy to murder], specifically evidence of the alleged shooting of Rene Perez and evidence of an alleged shooting at [Valle's] residence." The overt acts could apply either to conspiracy to commit murder of Perez or murder at the Valle residence. The jury was also instructed that, in determining whether defendant committed the alleged overt acts, it was to consider "all of the evidence presented about the overt acts." Finally, in finding defendant guilty of conspiracy to commit murdеr as charged, the jury found that, in committing that offense, defendant personally and intentionally discharged a firearm and that he participated as a principal in committing that offense, knowing that another principal to the offense was armed with a firearm.
B. Law Applicable to Determining a Lesser Included Offense
The test for determining whether there is a necessarily included offense is whether one offense cannot be committed without necessarily committing another offense; the latter is a necessarily included offense. ( People v. Pendleton (1979)
Here, the parties agree the assault and dwelling-shooting conspiracy offenses do not qualify as lesser included offenses to the murder conspiracy charge under the elements test. The issue here is whether the offenses qualified as lesser included offenses under the accusatory pleading test by virtue of language in the information describing the overt acts. In determining whether an accusatory pleading encompasses an allegedly lesser included offense, the courts "consider only the pleading for the greater offense." ( People v. Montoya (2004)
California courts have a sua sponte duty to instruct the jury on all necessarily included offenses supported by substantial evidence from which a reasonable juror could find the defendant guilty of the lesser offense but not the greater. ( People v. Licas (2007)
C. Conspiracy
Section 182 defines the crime of conspiracy as two or more persons conspiring to "commit any crime." ( § 182, subd. (a)(1).) Section 184 requires that one or more parties to the agreement commit an act to "effect the object" of the conspiracy. (§ 184.) Thus a conspiracy requires proof that the defendant and at least one other person "had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the cоmmission of an overt act 'by one or more of the parties to such agreement' in furtherance of the conspiracy." ( People v. Morante (1999)
Conspiracy is a crime distinct from the substantive offense that is its object; it does not require commission of the substantive offense (target offense). ( People v. Swain (1996)
D. Application of Fenenbock and Cook
Defendant argues that under People v. Cook (2001)
In Fenenbock , the defendants argued the trial court erred in not sua sponte instructing on conspiracy to commit assault, battery, and mayhem as lesser included offenses of conspiracy to commit murder. At the outset, the parties in Fenenbock agreed that the target offense of assault, battery, and mayhem did not qualify as offenses included within the statutory definitiоn of murder under the elements test. The defendants, however, argued that the offenses qualified as lesser included target offenses under the accusatory pleading test "by virtue of language in the information describing the overt acts." ( Fenenbock , supra ,
Fenenbock explained that a conspiracy agreement is not punishable unless an overt act is committed in furtherance of the conspiracy. ( Fenenbock , supra ,
Defendant urges this court to decline to follow Fenenbock , supra ,
The Cook court rejected this contention, holding that "the trial court may look to the overt acts pleaded in a charge of conspiracy to determine whether the charged offense includes the lesser included offense. Under the accusatory pleading test for determining lesser included offenses, we find that conspiracy to commit assault by means of a firearm is a lesser included offense of conspiracy to commit murder as that offense was pleaded in the accusatory pleading. The overt acts alleged in the information gave notice to defendants of the lesser included offense, and the defendants do not claim the fаcts shown at the preliminary hearing failed to give them notice of the lesser offense or that they were surprised by the evidence presented at trial." ( Cook , supra ,
Cook , supra ,
We agree with Cook to the extent that the trial court may consider overt act allegations when determining whether sua sponte instruction on a lesser included conspiracy offense is required. Even though overt acts need not be criminal offenses or acts committed by the defendant, there may be overt act allegations establishing that the defendant has agreed or conspirеd to commit lesser included target offenses. It is therefore not error for the trial court to consider the overt act allegations when determining whether the conspiracy count allegations as a whole require sua sponte instruction on a lesser included conspiracy offense. The Cook court recognized that, "[t]o the extent an accusatory pleading fails to allege overt acts sufficient to give notice of a lesser included offense, the trial court may not rely on the pleading as a basis to instruct on lesser included offenses not included in the allegations of that pleading. Nevertheless, the possibility that some pleadings
We disagree, however, with Cook 's holding that the pleadings, including the overt act allegations, required an instruction on the lesser included offense of conspiracy to commit assault with a firearm. ( Cook , supra ,
The fact that defendant was charged with the substantive offense of assault with a firearm for the Perez shooting (count 4) does not mean the conspiracy charge necessarily encompassed that offense as a lesser target offense of conspiracy to commit murder, as defendant argues. Defendant and Saavedra could have agreed at the outset to commit murder and then planned to accomplish the murder by ambushing and shooting at Perez and Barrera. They could have then committed the substantive offense of assault with a firearm when Saavedra shot at Perez and Barrera and missed them. (§ 254, subd. (a)(2).) Their commission of assault with a firearm would not have changed the original nature of their conspiracy, which was to commit murder, and it did not render assault with a firearm a necessarily included target offense of the conspiracy to commit murder.
E. Insufficient Evidence to Support Instruction on Lesser Included Offenses
Even if the accusatory pleading allegations suрported instruction on
Furthermore, defendant did not claim at trial that he committed the two lesser offenses. Rather, defendant testified he did not consрire with Saavedra to commit any offense at all. Instead, Saavedra abruptly fired the handgun at Perez's car without there being any agreement or discussion with defendant. The Valle shooting occurred because someone fired on defendant and Saavedra first. Because substantial evidence was lacking to support an instruction on either allegedly lesser target offense, the trial court was not required to instruct the jury on them.
Defendant's federal constitutional claim also fails because defendant's asserted offenses were not necessarily included within the charged offense of conspiracy or supported by substantial evidence. ( People v. Valentine (2006)
F. Harmless Error
Finally, if there was any error in not instructing on conspiracy to commit assault with a firearm оr conspiracy to shoot at an inhabited dwelling, it was harmless because it was not reasonably probable a more favorable verdict would have occurred but for the error. ( People v. Breverman , supra,
Also, there was overwhelming evidence supporting defendant's conviction for conspiracy
Since the record demonstrates that the conspiracy conviction was based on the Valle shooting and was supported by substantial evidence, any error in failing to instruct the jury on the allegedly lesser conspiracy offenses was also harmless, because the evidence did not support a finding that defendant committed either lesser conspiracy offense instead of conspiracy to commit murder. No reasonable juror would have found defendant guilty of any conspiracy crime less than conspiracy to commit murder.
IV-VI
VII
DISPOSITION
The judgment of conviction is affirmed. The judgment of sentence is reversed and this matter is remanded to the trial court for resentencing, with instructions to the trial court to (1) strike the one-year section 12022, subdivision (a)(1), enhancement as to the assault with a firеarm count (count 4); (2) stay under section 654 the one-year section 12022, subdivision (a)(1), enhancement as to the conspiracy count (count 1); (3) elect under section 654 to stay separate punishment either on count 2 or count 5; and (4) exercise its
We concur:
RAMIREZ P.J.
MILLER J.
Notes
All statutory references are to the Penal Code.
Defendant testified that both he and Saavedra were stocky; Saavedra's weight was about 230 or 235 pounds. They could wear the same size pants.
The trial court admitted a prior conviction to impeach his credibility.
See footnote *, ante .
We express no opinion as to how the trial court should exercise its discretion under section 12022.53, subdivision (h), on remand.