People v. McFearson

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.]

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the Introduction, part IV.A. of the Discussion, and the Disposition are certified for publication.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 812 OPINION

INTRODUCTION David McFearson was convicted of various crimes arising from two shootings in which he was involved. He was sentenced to a determinate prison term of 14 years four months, and a consecutive indeterminate prison term of 25 years to life, based primarily on his conviction for using a firearm to cause great bodily injury during an attempted murder. (Pen. Code, §§ 187, subd. (a), 664, 12022.53, subd. (d).)1 McFearson attacks his convictions on numerous grounds. First, he claims he was convicted improperly of two counts because they were lesser included offenses of other crimes of which he was convicted. Second, he claims his conviction must be reversed because of prosecutorial misconduct. Third, he argues the trial court erred in failing to provide the jury with a Sanchez2 instruction. Finally, he asserts the trial court made various errors at the sentencing hearing. We agree that the convictions on two counts must be vacated because they are lesser included offenses of other crimes of which McFearson was convicted, and that the trial court erred during sentencing. We will reverse the convictions on the two lesser included counts and will vacate the sentence and remand for resentencing. We reject the remainder of the claims of error. We publish only our discussion of whether the trial court improperly used the fact of his prior convictions to impose an aggravated sentence and to enhance his sentence pursuant to the terms of section 667.5, subdivision (b). As we will explain, based on Supreme Court precedent, we conclude the trial *Page 813 court erred because it used a fact that resulted in an enhancement of McFearson's sentence also to impose an aggravated sentence. (§ 1170, subd. (b).) In reaching this conclusion, we disagree with a prior decision from this court, People v. Hurley (1983) 144 Cal.App.3d 706,709-710 [192 Cal.Rptr. 805] (Hurley).

FACTUAL AND PROCEDURAL SUMMARY* In February 2006, Shareco Ervin was talking on his phone when he drove into the parking lot of a local convenience store. He noticed McFearson and Renita Lynn Williams in the parking lot as he drove up. Ervin finished his phone call and began to exit the vehicle. When he looked up, he saw McFearson point a gun at him and begin shooting. Ervin ducked to avoid the bullets, but was struck twice in the arm. Ervin admitted knowing Williams's brother, but denied meeting either McFearson or Williams before the shooting. Daniel Marquez Ozuna was the cashier at the convenience store that night. Just before the shooting, he heard McFearson call out, "Hey, cuz." At the time, McFearson was walking towards the store. McFearson began shooting a gun, but Ozuna could not see at what McFearson was shooting. Ozuna ran behind the counter and lay on the ground until Ervin ran inside the store. Ervin was holding his bleeding arm. The events leading up to the shooting were described by Williams, McFearson's companion at the time. Williams met McFearson in November 2005. They became romantically involved shortly thereafter. They spent time together, both in Bakersfield, where Williams lived, and in Oakland, where McFearson lived. On December 24, 2005, McFearson and Williams's brother, Malachi Lilo Walton, got into an argument at the apartment Williams shared with her family. McFearson hit Malachi and then ran out of the house. Willams's other brother, Simeon Walton, followed McFearson outside and threw an ashtray at McFearson's van. McFearson pulled out a gun from inside the car and shot at Simeon. No one was injured by the bullets and the police were not called. Williams spoke with McFearson about two hours later. McFearson said he shot at Simeon because he heard the ashtray hit his van and thought Simeon was shooting at him. He also asked if Williams called the police. Williams's brother, Malachi, and mother, Regina Lynn Bermudas Walton, confirmed Williams's testimony about the incident. Williams claimed she continued to see McFearson because she was afraid that if she did not, McFearson would hurt her family. She saw him most weekends. In February 2006 McFearson came to Bakersfield to visit Williams. Williams told McFearson she would be at a local fast-food restaurant picking up dinner for her children. As she paid for her food in the drive-through lane, McFearson pulled into the drive-through lane in the wrong direction, effectively preventing Williams from leaving. McFearson got out of his car and began talking to Williams. An employee from the restaurant came out and asked McFearson to move his car. An argument ensued, but McFearson eventually moved his vehicle. McFearson and Williams drove away and met in another parking lot. McFearson got into Williams's vehicle and the two drove around the area. They ended up at a parking lot in a local park. Williams and McFearson went for a walk. There were two other vehicles in the parking lot when they returned to Williams's vehicle. One of the vehicles left. McFearson took out a gun and shot at the remaining vehicle for no apparent reason. The next day Williams called in sick to work because she was afraid that if she went to work McFearson might follow her and shoot her. McFearson called later that day and arranged to meet Williams. The two again drove around the area in Williams's vehicle. They drove to a convenience store and entered the parking lot. Another vehicle was in the parking lot with a man whom Williams did not know sitting inside. McFearson said he was going "to show these Bakersfield niggas how it's done," or words to that effect, and got out of Williams's car and began shooting at the other vehicle. Williams screamed and started backing up her vehicle. McFearson got back into the car and Williams drove away from the scene. Williams drove in excess of the speed limit, hoping an officer would pull her over. When the car ran out of gas, McFearson began pushing the car towards a gas station. McFearson gave Williams some money then ran off when a security guard began approaching the vehicle. Williams put gas in her car and drove away. McFearson called and asked her location. He became agitated when he could not find Williams, and he threatened to kill her mother and son. Williams called her mother and warned her. She then called the police and told them about the shooting and McFearson's threats to her family. Officer Michael Allred responded to Williams's apartment. He saw an individual matching McFearson's description walking in a parking lot near the apartment. The pedestrian ran away when Allred used his spotlight in an attempt to identify him. Allred and other officers chased and eventually arrested the pedestrian, who was indeed McFearson. The officers did not locate any weapons on McFearson when he was arrested. A firearm was located approximately 40 feet from where McFearson was arrested. The firearm was in a dirt field on the opposite side of a tall wall. When McFearson was searched during the booking process, three pills in a plastic baggie were found hidden in his sock. Testing established the pills were methalenedioxy methamphetamine, commonly known as ecstasy, and that each pill was a useable quantity. McFearson called Williams shortly after he was arrested. He told her not to say anything. A few days later Williams called Ervin. She obtained Ervin's girlfriend's phone number from someone, but she could not remember from whom. Williams told Ervin she did not know why McFearson shot him. Melissa Renee Harts divorced McFearson in 2001. Harts was close to McFearson's family, so her relationship with him continued after the divorce. In 2005, Harts purchased a gun for self-protection. She kept it stored in the trunk of her car. In December 2005, Harts noticed the gun was missing from the trunk of her car. She reported the theft of the gun to the police. The firearm the police recovered at the scene of McFearson's arrest was identified as the firearm purchased by Harts. Officer Richard Dossey, Jr., reviewed tapes of conversations between McFearson and Williams while McFearson was incarcerated. During one or more of those conversations, McFearson suggested that Williams would not have to testify if she could not be found by the police. He also instructed her to deny that she signed any statements, suggesting she testify that she signed a blank piece of paper and the police wrote the statement after it was signed. McFearson testified that Harts purchased the gun for him as a birthday present.3 Harts purchased the gun because, as a felon, McFearson was not permitted to buy a gun. McFearson usually kept the gun with him. On Christmas Eve, McFearson drove to Bakersfield to visit Williams. During the visit, Malachi began calling him names. When McFearson tried to walk away, Malachi spit on him. McFearson hit Malachi in the face, knocking him down. McFearson ran to his vehicle. He saw Simeon running towards him with something in his hand while yelling threats. Several people from the house followed Simeon outside. Simeon threw the object and hit McFearson's vehicle. McFearson grabbed his gun from under the seat of the vehicle and fired two rounds in a safe direction, not intending to shoot anyone. He then got into his vehicle and left. McFearson and Williams smoked marijuana together. Williams supplied the marijuana. She told McFearson that she bought the marijuana from Ervin. McFearson admitted being in the park with Williams, but denied shooting at anyone. The next night he again met Williams. They drove around, eventually ending up at the convenience store. McFearson and Williams were talking in the car when Ervin pulled up in his vehicle. McFearson and Ervin stared at (mad dogged) each other. McFearson asked Williams if she knew the person at whom he was staring. Williams said she did, and that Ervin would "kill [her] at the drop of a dime." McFearson exited the vehicle to go into the store while still staring at Ervin. As he approached the store, it appeared to McFearson that Ervin grabbed a weapon and tried to open the door. McFearson pulled out his gun and shot at Ervin as he (McFearson) was running back to Williams's vehicle. McFearson claimed he was firing to pin Ervin down so he and Williams could escape. They drove until the vehicle ran out of gas. McFearson pushed the vehicle towards a gas station, but stopped in a restaurant parking lot when he became tired. Williams left to buy gas. After she left, a security guard approached the vehicle. McFearson panicked and ran away. He called Harts to come and pick him up. McFearson called Williams after dropping Harts at her house. McFearson and Williams tried to find each other but could not do so. Williams eventually told McFearson to meet her in the parking lot of her apartment building. McFearson parked his car in a convenience store parking lot and looked for a place to hide the gun. When he could not find a suitable place, he threw it over a wall into the dirt field in which the gun eventually was found. McFearson then walked to the apartment building parking lot, but Williams was not there. McFearson was walking back to the convenience store when he was spotted by the police and arrested. McFearson denied threatening to kill anyone in Williams's family. These events led to the filing of a 28-page indictment alleging 15 separate counts and numerous enhancements. To ease the reader's task, we will review the charges in the context of the jury verdict. The jury convicted McFearson of (1) the attempted murder of Ervin (§§ 187, subd. (a), 664) (count 1), (2) assaulting Ervin with a semiautomatic firearm (§ 245, subd. (b)) (count 2), (3) assaulting Ervin with a firearm (§ 245, subd. (a)(2)) (count 3), (4) possession of a controlled substance while armed with a loaded firearm (at the time of his arrest) (Health Saf. Code, § 11370.1) (count 6), (5) possession of a controlled substance (at the time of his arrest) (Health Saf. Code, § 11377, subd. (a)) (count 7), (6) possession of a firearm by a felon during the Ervin incident (§ 12021, subd. (a)(1) (count 9), (7) carrying a loaded firearm with a prior felony conviction during the Ervin incident (§ 12031, subd. (a)(2)(A)) (count 11), and (8) possession of a firearm by a felon during the Simeon Walton incident (§ 12021, subd. (a)(1)) (count 14). In addition, the jury found the following enhancements true: (1) intentional discharge of a firearm, causing great bodily injury (§ 12022.53, subd. (d)) (count 1), (2) personal use of a firearm (§ 12022.5, subd. (a)) (counts 1, 2, and 3), and (3) personal infliction of great bodily injury (§ 12022.7) (counts 1, 2, and 3). The jury acquitted McFearson of (1) kidnapping Williams (§ 207) (and all lesser offenses) (count 4), (2) making criminal threats to Williams (§ 422) (count 5), (3) possession of stolen property (Harts's gun) (§ 496, subd. (a)) (count 8), (4) carrying a stolen firearm that was loaded (§ 12031, subd. (a)(2)(B)) (count 10), (5) assaulting Simeon Walton with a semiautomatic firearm (§ 245, subd. (b)) (count 12), (6) assaulting Simeon Walton with a firearm (§ 245, subd. (a)(2)) (and all lesser offenses) (count 13), and (7) misdemeanor resisting arrest (§ 148, subd. (a)(1)) (count 15). McFearson waived his right to a jury trial on the allegation that he served three prior prison terms within the meaning of section 667.5, subdivision (b). The trial court found the allegations true. The trial court imposed an aggravated term of nine years for count 1 (attempted murder), enhanced by 25 years to life for the section 12022.53, subdivision (d) enhancement (personal use of a firearm causing great bodily injury), and enhanced by another three years for the three section 667.5, subdivision (b) enhancements (prior prison terms). In addition, the trial court imposed a consecutive one-year sentence on count 6 (possession of a controlled substance while armed), a consecutive term of eight months for count 9 (possession of a firearm by a felon (Ervin incident)), and a consecutive term of eight months for count 14 (possession of a firearm by a felon (Simeon Walton incident)), for a total determinate term of 14 years 4 months, plus an indeterminate term of 25 years to life. The sentences on the remaining counts and enhancements were imposed and stayed pursuant to section 654.