Filed 1/27/20 P. v. Beavers CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA ROBERT BEAVERS,

Defendant and Appellant.

A155506

(Lake County

Super. Ct. No. CR933357)

Defendant and appellant Joshua Robert Beavers (appellant) appeals following his conviction of various offenses, including murder and attempted murder. We affirm.

PROCEDURAL BACKGROUND

In January 2014, the Lake County District Attorney filed a 10-count information charging appellant with the September 8, 2013 murder of David Ferrell (Pen. Code § 187, subd. (a); count 1); assault with a semiautomatic firearm on Ferrell, Rachel Patterson, and Paul Cressy (§ 245, subd. (b); counts 2, 4, 7); willful, deliberate, and premeditated attempted murder of Patterson and Cressy (§§ 187, subd. (a), 664, subd. (a); counts 3, 6); grossly negligent discharge of a firearm that could have resulted in injury to or the death of Patterson and Cressy (§ 246.3, subd. (a); counts 5, 8); carrying a loaded firearm in public (§ 25850, subd. (a); count 9); and possession of a short-barreled shotgun (§ 33215; count 10). The information included firearm enhancement allegations as to the murder, assault, and attempted murder counts (§§ 12022.5, 12022.53) and alleged that appellant inflicted great bodily injury on Ferrell and Cressy in committing the assault, grossly negligent discharge, and unlawfully carrying a loaded firearm offenses involving those victims (§ 12022.7, subd. (a)).

In July 2017, a jury found appellant guilty as charged and found all enhancement allegations to be true. In August 2018, the trial court sentenced appellant to 23 years plus 65 years to life in prison. This appeal followed.

FACTUAL BACKGROUND

Cameron Fallis is the son of Angel Esquivel, who is married to Orlando Esquivel. Fallis had a poor relationship with his mother and stepfather, but appellant was close to them. On September 8, 2013, the day of the shootings underlying the information, Fallis argued with his mother and appellant confronted Fallis near a shopping center, hitting him in the head.

In September 2013, Fallis was living in a trailer on the property of his best friend Ferrell in Clearlake. After the incident near the shopping center, Fallis returned to Ferrell’s house; subsequently, Ferrell spoke to appellant on the phone and challenged him to “come on over here and handle” his problem with Fallis “one on one like a man.”

Appellant loaded a .22-caliber, semiautomatic handgun and gave a short-barreled shotgun and shells to a friend, Daniel Cunningham. According to Cunningham, appellant said, “ ‘I’m going to fucking smash this fool, like fucking — like if you thought the first one was bad, dude, I’m going to fucking dog him out this time.’ ”

Appellant, Angel and Orlando Esquivel, Cunningham, and others went to Ferrell’s house in a van. They parked the van at the top of Ferrell’s driveway, about 150 feet from Ferrell’s residence. Appellant, Cunningham, and others walked down the driveway. As appellant approached, Ferrell called for Fallis to come “fight one on one.” Ferrell and Fallis were unarmed; both wore shorts but no shirts.

Appellant and Farrell argued about the assault on Fallis. Farrell told Fallis to fight appellant. As Fallis moved to fight appellant, appellant drew a handgun and pointed it at Fallis. Farrell pushed Fallis to the ground, and appellant shot Ferrell in the head from about five feet away. Farrell had not made any aggressive move toward appellant.

Appellant and his companions walked back up the driveway towards the van, while Fallis ran inside and called the police. Ferrell’s wife, Felicia Vance, went outside and loudly yelled that she was calling the cops. A woman screamed, “ ‘You fucked up. We seen your face.’ ” Appellant turned, aimed the gun, and fired three or four more shots. He paused between each of the additional shots. At the time, Ferrell’s friends Patterson and Cressy were outside, about 150 feet away from appellant. One of the bullets fractured Cressy’s left elbow and another hit Patterson on her right side. Ferrell died at the scene.

Appellant repeatedly lied during his police interrogation, claiming, for example, that he was attacked by multiple armed assailants and that the gun went off by accident. As relevant to one of the issues on appeal, appellant claimed he fired three warning shots at the ground after fleeing up the hill. He said, “if I had shoot [sic] at them . . . trust me, I would have not missed.” At trial, appellant testified he fired warning shots into trees to stop people from pursuing him.

DISCUSSION

I. Substantial Evidence Supported the Findings of Premeditation and Deliberation as to the Attempted Murder Convictions

The jury found the attempted murders of Patterson and Cressy were deliberate and premeditated. Appellant contends the evidence was insufficient to sustain those findings. We reject the claim.

“Where, as here, a defendant challenges the sufficiency of the evidence on appeal, we review the whole record in the light most favorable to the judgment below 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.] A reviewing court must reverse a conviction where the record provides no discernible support for the verdict even when viewed in the light most favorable to the judgment below. [Citation.] Nonetheless, it is the jury, not the reviewing court, that must weigh the evidence, resolve conflicting inferences, and determine whether the prosecution established guilt beyond a reasonable doubt. [Citation.] And if the circumstances reasonably justify the trier of fact’s findings, the reviewing court’s view that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment.” (People v. Hubbard (2016) 63 Cal.4th 378, 392.)

“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623; accord People v. Pettie (2017) 16 Cal.App.5th 23, 52.) “[U]nlike murder, attempted murder is not divided into degrees. The prosecution, though, can seek a special finding that the attempted murder was willful, deliberate, and premeditated, for purposes of a sentencing enhancement.” (People v. Mejia (2012) 211 Cal.App.4th 586, 605; see also § 664, subd. (a); People v. Sedillo (2015) 235 Cal.App.4th 1037, 1049 [“attempted murder is not a lesser included offense of attempted premeditated murder, but premeditation constitutes a penalty provision that prescribes an increase in punishment”].)

“ ‘In this context, “premeditated” means “considered beforehand,” and “deliberate” means “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” ’ ” (People v. Jurado (2006) 38 Cal.4th 72, 118; see also People v. Herrera (1999) 70 Cal.App.4th 1456, 1463, fn. 8 [“[w]e do not distinguish between attempted murder and completed first degree murder for purposes of determining whether there is sufficient evidence of premeditation and deliberation”], disapproved on another ground in People v. Mesa (2012) 54 Cal.4th 191, 199.) “ ‘ “Premeditation and deliberation can occur in a brief interval. ‘The test is not time, but reflection. “Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” ’ ” (People v. Solomon (2010) 49 Cal.4th 792, 812.)

In People v. Anderson (1968) 70 Cal.2d 15, 26–27 (Anderson), the California Supreme Court “identified three categories of evidence relevant to determining premeditation and deliberation: (1) events before the murder that indicate planning; (2) a motive to kill; and (3) a manner of killing that reflects a preconceived design to kill. As we have repeatedly pointed out, and now reaffirm, ‘[t]he Anderson guidelines are descriptive, not normative. [Citation.]’ [Citation.] They are not all required [citation], nor are they exclusive in describing the evidence that will support a finding of premeditation and deliberation.” (People v. Gonzalez (2012) 54 Cal.4th 643, 663.)

Substantial evidence supported the jury’s findings that the attempted murders of Patterson and Cressy were premeditated and deliberate. Appellant argues the facts do not show planning activity because, although he brought a loaded gun to the confrontation, that planning related only to the shooting of Farrell. However, the jury could reasonably infer that appellant brought the gun—and provided Cunningham with a shotgun—for possible use against anyone they encountered at Farrell’s house. (See People v. Salazar (2016) 63 Cal.4th 214, 245 [“defendant brought a loaded gun with him” and told a companion to get a gun, which “demonstrate[ed] preparation”]; People v. Romero (2008) 44 Cal.4th 386, 401 [bringing a gun to an encounter is evidence of planning].)

Appellant argues he had no motive to kill Patterson and Cressy because the testimony at trial showed they did not actually witness the shooting of Farrell and, therefore, could not provide evidence against appellant. However, the jury could reasonably infer appellant had no way of knowing what Patterson and Cressy had witnessed. Further, based on the testimony that people yelled about calling the police and about having seen appellant’s face, the jury could reasonably infer appellant sought to eliminate possible witnesses to the shooting. (See People v. San Nicolas (2004) 34 Cal.4th 614, 658 [defendant’s motive to kill “credibly could have been that . . . it was necessary . . . to prevent [the victim] from informing the police”]; People v. Bolin (1998) 18 Cal.4th 297, 332 [“reasonable trier of fact could infer” motive to kill additional victims was to “eliminate [them] as witnesses to the [first] shooting”]; People v. Perez (1992) 2 Cal.4th 1117, 1126 [“it is reasonable to infer that defendant determined it was necessary to kill [the victim] to prevent her from identifying him”].) It is not dispositive that, under that view of the evidence, appellant made his determination to eliminate the witnesses very quickly. (See San Nicolas, at p. 658 [“[t]he act of planning—involving deliberation and premeditation—requires nothing more than a ‘successive thought[ ] of the mind’ ”]; ibid. [“brief period” between seeing the victim’s reflection in a mirror and turning around to stab her was “adequate for defendant to have reached the deliberate and premeditated decision to kill [her]”].)

Finally, appellant argues the manner of the shooting does not show premeditation and deliberation because “[t]hese are not execution-style attempted slayings involving acts calculated to insure death. [Citations.] To the contrary, this case involves the firing of gunshots from a .22-caliber weapon which lacks both accuracy and lethality at 75 yards.” However, the circumstance that appellant struck the victims with two of the shots fired from far away is actually evidence that appellant was carefully aiming at the victims: the jury could reasonably infer it is unlikely two of the shots would have struck the victims if the shots were just warning shots, as appellant testified. Accordingly, the difficulty of hitting the targets actually supports the finding of deliberation and premeditation. Further, even accepting appellant’s assertion—unsupported by citations to the record —that the shots lacked lethality because of the distance and caliber of the weapon, that cannot undermine the jury’s finding absent evidence that appellant knew the shots were unlikely to kill.

It is possible that a different jury might have concluded on the same evidence that, as appellant argues, the shots fired when he was at the van were “an unconsidered explosion of violence.” (People v. Horning (2004) 34 Cal.4th 871, 902–903.) However, “the relevant question on appeal is not whether we are convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt that defendant premeditated the [attempted] murder.” (People v. Perez, supra, 2 Cal.4th at p. 1127.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Appellant has not shown such an absence of evidence supporting the jury’s findings.

II. The Great Bodily Injury Enhancement to the Conviction for Carrying a Loaded Firearm is Proper

Appellant contends it was improper to impose a section 12022.7, subdivision (a) great bodily injury enhancement on his crime of carrying a loaded firearm. Section 25850, subdivision (a) prohibits “carrying . . . a loaded firearm on the person or in a vehicle while . . . on any public street in an incorporated city.” The section 12022.7, subdivision (a) enhancement applies when a “person . . . personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony.”

Appellant argues he “committed the crime of carrying a loaded firearm in public when he obtained the firearm, placed it into his waistband and proceeded to Farrell’s residence in Angel’s vehicle. His carrying the weapon did not cause the injury to Cressy.” He relies on People v. Arzate (2003) 114 Cal.App.4th 390, where the court of appeal struck a gun use enhancement from a conviction for carrying a concealed firearm. (Id. at p. 399.) The court reasoned the enhancement was improper because “there is some question whether a person can use a firearm in the commission of carrying a concealed weapon or can inflict great bodily injury in the commission of carrying a concealed firearm in vehicle. The statutory requirement for true findings on these enhancement allegations dictates the gun use and infliction of injury occur ‘in the commission’ of the underlying felony. Conceptually the crime of concealment would seemingly end with the firearm’s use and thus exposure. In other words, it seems logically inconsistent to be found guilty of both using the gun and inflicting injury while concealing the same gun within a vehicle.” (Id. at p. 400.)

In contrast, as respondent points out, the crime of carrying a loaded firearm is a continuing offense that did not end when appellant drew and fired the weapon. “The concept of a continuing offense is well established. For present purposes, it may be formulated in the following terms: ‘Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty.’ [Citations.] Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled.” (Wright v. Superior Court (1997) 15 Cal.4th 521, 525–526.)

Accordingly, the enhancement for great bodily injury was properly imposed in the present case because at the time appellant inflicted injury the offense of carrying a loaded weapon in public was continuing; the injury was inflicted in the commission of that firearm offense. (See People v. Elder (2014) 227 Cal.App.4th 411, 426 [distinguishing Arzate where inury inflicted after completion of assault but in part of continuous incident].)

III. No Remand for Ability to Pay Determination

The trial court imposed a $10,000 restitution fine (§ 1202.4); a stayed parole revocation fine in the same amount (§ 1202.45); a $400 court operation assessment (§ 1465.8), $240 of which was stayed; and a $300 criminal conviction assessment (Gov. Code, § 70373), $180 of which was stayed. Appellant contends the matter must be remanded for a hearing on his ability to pay the fines and assessments under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano). We conclude the argument is forfeited on appeal.

Section 1202.4, subdivision (b)(1) provides for a restitution fine in the minimum amount of $300, and up to a maximum amount of $10,000, when a defendant is convicted of a felony. Section 1202.4, subdivision (c) specifies, “The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states its reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of restitution in excess of the minimum fine . . . .” Thus, the statute requires the trial court to impose the statutory minimum regardless of the defendant’s ability to pay, but the court may consider ability to pay in setting a fine in excess of the statutory minimum. (People v. Kramis (2012) 209 Cal.App.4th 346, 350.)

In Dueñas, the trial court imposed certain assessments and a $150 restitution fine—the minimum amount required for misdemeanors under section 1202.4, subdivision (b). (Dueñas, supra, 30 Cal.App.5th at p. 1162.) The trial court rejected the defendant’s argument that imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Id. at p. 1163.) The Court of Appeal reversed, holding that “the assessment provisions of Government Code section 70373 and . . . section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution.” (Dueñas, at p. 1168.) The court reversed the order imposing the assessments and directed the trial court to stay the execution of the restitution fine “unless and until the People prove that [the defendant] has the present ability to pay it.” (Id. at p. 1173.)

Respondent contends appellant forfeited any challenge to the fines and assessments by failing to object or raise the issue below. This general rule of forfeiture is well-settled. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.) Appellant argues the forfeiture rule should not apply because the sentencing occurred prior to Dueñas. We disagree.

In Castellano, surpa, 33 Cal.App.5th at page 488, the trial court imposed various fees and a restitution fine of $300 (the statutory minimum for a felony count). The court of appeal held the forfeiture rule did not apply to a defendant sentenced prior to Dueñas because no court previously “held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant’s ability to pay.” (Castellano, supra, at p. 489; accord People v. Jones (2019) 36 Cal.App.5th 1028, 1033 [$300 minimum restitution fine].)

In People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen), the court of appeal rejected a Dueñas claim on the ground of forfeiture in a case where the trial court imposed a $10,000 restitution fine, the statutory maximum. The court reasoned that an objection to that amount would not have been futile under the law that existed at the time, because ability to pay was a factor that could have been considered in setting the fine in excess of the minimum. (Id. at p. 1154.) Similarly, in People v. Gutierrez (2019) 35 Cal.App.5th 1027 (Gutierrez), the trial court imposed a $10,000 restitution fine along with fees and assessments totaling $1,300. The court of appeal held that the defendant, sentenced prior to Dueñas, had forfeited his ability-to-pay claim on appeal by failing to raise the issue below. (Id. at p. 1029.) The court reasoned that, because “even before Dueñas” section 1202.4 permitted the trial court to consider a defendant’s ability to pay when it imposed a fine above the statutory minimum, “defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay” and the usual rules of forfeiture applied. (Id. at p. 1033; see also Avila, supra, 46 Cal.4th at p. 729 [defendant forfeited challenge to restitution fine greater than the minimum by failing to raise the argument below].) Regarding the lesser sum imposed for other fees and assessments, the Gutierrez court concluded the defendant’s challenge to those amounts was also forfeited because, as “a practical matter, if [the defendant] chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees.” (Gutierrez, at p. 1033.)

The Gutierrez court’s reasoning applies here. Because the trial court imposed a maximum restitution fine of $10,000 rather than the $300 statutory minimum, appellant had the right, even before Dueñas, to request that the court consider his ability to pay that amount and “had every incentive” to do so. (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) Because he failed to challenge his ability to pay the $10,000 fine, appellant, like the defendant in Gutierrez, “surely would not complain on similar grounds” as to the relatively insignificant unstayed assessment amounts of $160 and $120. (Ibid.; see also Frandsen, supra, 33 Cal.App.5th at p. 1154 [“Given [defendant’s] failure to object to a $10,000 restitution fine based on inability to pay, [defendant] has not shown a basis to vacate assessments totaling $120 for inability to pay.”].) We conclude appellant has forfeited his Dueñas claim.

DISPOSITION

The trial court’s judgment is affirmed.

 

SIMONS, J.

We concur.

JONES, P.J.

BURNS, J.

(A155506)