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Filed 7/25/16 P. v. Bowman CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sutter)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
FRANK BERNARDI BOWMAN,

Defendant and Appellant. C078851 (Super. Ct. No. CRF141477)

Defendant Frank Bernardi Bowman went to the duplex of some friends where he pointed a gun at two of the women inside (Jennifer Evans and Anita Kelley) , verbally
threatened Kelle y , and then right af t er he left and went outside , fired a gun at the hood of Kelley ’s truck

. For these acts, a jury found defendant guilty of first degree burglary (count 1) , criminal threats to Kelley (count 2) , assault with a firearm on Evans (count 4) , assault with a firearm on Kelley (count 6) , possession of a firearm by a narcotics addict (count 7), grossly negl igent discharge of a firearm (count 8) , and misdemeanor drawing or2

exhibit ing a firearm (count 9)

. The jury also found that defendant had two prior strike
convictions.
The court sentenced defendant to 177 years to life in prison, which included the following terms: five consecutive terms of 25 years to life in prison for the current strikes ( first degree burglary, criminal threats, two assaul t with firearms , grossly negligent discharge of a firearm) , and 50 years for the prior serious felonies, ca lculated as

two five

- year terms attached to each current strike that the People had alleged as prior
strikes

. On appeal, defendant raises evidenti ary and sentencing issues. We find merit only
in the sentencing i ssues. As we will explain , the sentence must be vacated and the case
remanded for the trial court to : (1) strike the prior serious felony enhancements that the People spe cifically elected not to charge; (2) impose a stay on one of the four terms of punishment associated with the burglary or the crimes against Kelley (t here were two) or Evans because defendant entered the duplex with the intent to commit these crimes; and (3) exercise its di scretion to sentence the current five

- strike offenses either consecutively or concurrently, where the record shows that the court misunderstood its sentencing
discretion.
FACTUAL AND PROCEDURAL BACKGROUND The crimes here took place around 10 p.m. in June 2014 in a residential area of Yuba City at the duplex of Rhonda Mercado , her 12

- or 13

- year

- old son, and her boyfriend Sergio Beltran . At that time, Mercado’s friends, Evans and Kelley , were visiting. 1 Evans an d Kelley had gone into the back room and smo ked methamphetamine

. Beltran went outside to smoke a cigarette when defendant drove up to the dupl ex, said “hi,” and went inside. Defendant peeked his head into the back room , said, “ooh , ” upon

1 Evans testified at trial she had previously been convicted of petty theft and misdemeanor carrying a concealed firearm in a vehicle.3

seeing Evans and Kelley, and then walked out of the duple x. He returned to the back

room 30 to 45 seconds later with a sawed

- off shotgun and pointed it at the middle of Evans’s forehead. When Evans asked defendant, “ ‘Frankie, what are you doing,’ ” he
hit her on the side of her face with the shotgun. Then he t urned to Kelley and pointed the shotgun at Kelley’s head. He told Kelley, “ ‘Stop following me and stay away from Wilbur.’ ”
Defendant walked out of the back room , apologized to Mercado and her son, and
le ft the duplex. Immediately after leaving, def endant fired his shotgun into the hood of Kelley’s truck , causing a hole in the radiator

. The sawed

- off shotgun defendant fired had
buckshot inside. A sawed

- off shotgun, because it has a shorter barrel, causes the buckshot pellets to disperse faster when leaving the barrel. A buckshot shell produces bigger holes.
DISCUSSION
I
T here Was Sufficient Evidence Defendant Discharged A Firearm In A Grossly Negligent Manner
Defendant contends there was insufficient evidence he “ willfully discharge[d] a firearm in a grossly negligent manner which could result in injury or death to a person ” (Pen. Code, § 246.3, subd. (a)), because there was no evidence of risk of injury to anybody

. The “bottom line , ” he argues, is “that without some testimony that pelle ts to a truck had any ability t o hit someone,” there was insufficient evidence to support this
conviction

. But there was such evidence

. Defendant fired a sawed

- off shotgun in a residential neighborhood immediately after he left Mercado’s duplex

. At least five people were around and heard the shot, which occurred in June at 10 p. m

. Shooting a firearm in an area where people are close by presents a high risk of injury o r death. (See People v. Alonzo (1993) 13 Cal.App.4th 535, 537

- 538, 540 ( [shooting a gun into the air at 2 a.m. in4

a commercial business district with people present was “ grossly negligent behavior [that] could have resulted in injury or death to a person ”] .) The fact that defendant fired into Kelley’s truck does not help him. Defendant fired a sawed

- off shotgu n that had buckshot
inside. A sawed

- off shotgun, because it has a shorter barrel, causes the buckshot pellets to disperse faster when leaving the barrel . A bucks hot shell produces bigger holes. All
of this also ran the risk of a ricochet ing pellet, fragment, or debris , hitting a person in this residential neighborhood

. II

Defendant Has Forfeited His Contention That He Should Have Been Able To Impeach Evans With Evidence That She Believed She Could
R eceive A Benefit In A Pending Arizona Drug Case If She Cooperated In This Case Defendant contends the trial court violated his due process right to present a
defense and abused its discretion when it excluded evidence that Evans had been arrested
in Arizona in September 2014 for attempting to smuggle 230.3 grams of methamphetamine into the United States from Mexico , because this evidence was relevant to prove that “she did believe she could receive a benefit based on her cooperation with the prosecution

. ” As we explain below, defendant has fo rfeited this contention because he never asked that the evidence of Evans’s drug arrest be admitted for the specific purpose he asserts now on appeal. In an in limine motion, the People moved that evidence of Evans’s arrest be
excluded beca use it was not relevant, as she had not been convicted of those charges yet.
The court tentatively ruled that defense counsel would be able to impeach Evans only if there had been a conviction or if she had received “any promise of leniency.” Defense
counsel did not ob

ject to this ruling. The court then held a hearing out of the jury’s
presence to ascertain the facts behind Evans’s arrest. Evans testified nobody in the offices of the Yuma County District Attorney (in Arizona) or the Sutter County District Attorney had promised her leniency for her testimony here

. Her drug charges were still5

pending in Yuma County, and she had not yet been convicted of anything. When asked whether the way she felt was “you wish you would be made an offer,” Evans responded, “from Arizo na, for that case, I mean, I wish they would look at it like I’m cooperating here and so therefore I’m not a bad person, you know.” The court excluded e vidence of her drug arrest , since neither Yuma County nor Sutter County had promised her leniency
for h er current test imony nor had she been convicted of any crime in Arizona. Defendant contends this evidence should have been admitted because Evans “did believe she could receive a benefit based on her cooperation wi th the prosecution.” The problem for d efendant is that at no time did he raise the argument that Evans’s belief that she thought she could receive a benefit in her Arizona case from her testimony here was
relevant eviden ce in this trial that should be admitted. The court was therefore not on notice that defendant was seeking admission of that specific evidence

. In fact, the court had specifically stated the purpose of the hearing was to asce rtain whether Evans had
been convicted of the Arizona crimes or if she had received a promise of lenien cy and that if neither of those things were true, evidence of her Arizona c ase would be excluded.
The trial court had no reason to believe that defendant was seeking admission of this evidence if Evans simply believed she might receive a benefit, regardle ss of the lack of promise by any prosecuting agency. Thus, defendant has forfeited this specific contention on appeal by failing to raise it in the trial court

. ( In re Seaton (2004) 34
Cal. 4th 193, 198.)
III

This Case Must Be Remanded To Correct Three Se ntencing Errors
Defendant raises three sentenc ing errors the trial court c ommitted that he claims require remand for resentencing. These errors are : (1) the trial court imposed an
unauthorized sentence of an addi tional 50 years in prison (two five

- year prior serious felony enhancements attached to each current serious felony c onviction, of which there
were five ) because the People never a lleged or sought at any point the five

- year prior6

serious felony enhancement s; (2) the trial court should have stayed some of defendant’s punishment; and (3) the trial court misunderstood its discretion to se ntence the strike counts concurrently. We take each in turn, finding merit in these contentions.
A
The Two Five

- Year Prior Serious Felony Enhancements
Attached To E

ach Current Serious Felony Conviction (Which
Amounts To 50 Years) Must Be Stricken Because The P eople
Neve r Alleged These Priors Or Sought To Have Them Imposed In the information, the People alleged under “Penal Code Section
667 {e}{2}{ A }/1170.12{c}{2}{A } ” 2 that defendant had two prior convictions for a serious felony, namely, a June 2004 conviction for grossly negligent discharge of a firearm and a July 2007 conviction for first degree burglary. In a verdict form labeled “prior strike convictions,” the jury found defendant had the two prior convictions

. The People used the prio r serious felony convictions in their sentencing brief in the strike s context to either double defendant’s terms or impose 25

- year

- to

- life terms for the current serious felonies, of which there were five

. The probation report also used the prior ser i ous felony findings only in the strike context to recommend the same

. At sentencing, in addition to using the prior serious felony convictions as strike priors to either double the term for the count or impose 25

- year

- to

- life terms, the court imposed additional terms (two five

- year terms) on each of the five current serious felonies ( c ount 1 for f

irst degree burglary , count 2 for criminal threats to Kelley, count 4
for assau lt with a firearm on Evans, count 6 for assault with a firearm on Kelley , and
count 8 for grossly negligent discharge of a firearm )

. Defense counsel objected to the

2 These provisions comprise the strikes law mandating (as applic able here) either doubling of defendant’s term for the applicable crime or imprisoning him for 25 years to life for the applicable crime. (Pen. Code, §§ 667 subd. (e)(2)(A), 1170.12 , subd. (c)(2)(A) .)7

imposition of the serious felony enhancement s because they were not pled and proved at

tr ial. We a gree that since the People never sought to charge these priors as five

- year serious felony enhancements , they must be stricken.
T he court imposed additional p unishment that was never sought at any time by the People. However , i t i s the People who retain the discretion to file criminal charges, including enhancements , which includes the cho ice of whether to maximize the available sentencing to which a defendant might be exposed. ( People v. Gonzales (2001) 87 Cal.App.4th 1, 15.) “An individual exercise of prosecutorial discretion is presumed to be ‘ “legitimately founded on the complex considerations necessary for the effective and efficient administration of law enforcement. . . .” ’ ” ( Dix v. Superior Court (1991) 53 Cal.3d 442, 451 .) T he information a nd the People’s sentencing brief make clear that the People were never seeking an additional 50 years tacked onto defendant’s sentence for the two prior felony convictions that they alleged only as strike priors. Nevertheless, the court sua sponte imposed them not only as strikes but also as serious felony
enhancements. The court therefore erred in imposin g this additional punishment never charged nor sought by the People.
B

One O f Defendant’s Sentences Should Be Stayed Penal Code section 654 pr ecludes m ultiple punishment for a single act or
i ndivisible course of conduct punishable under more than one statute. Defendant
contends the court should have stayed , pursuant to Penal Code section 654, either the

consecu tive sentence for burglary in count 1 or on e of the crimes against Kelley (so,
either criminal threats against Kelley in count 2 or as sault with a firearm for pointing a gun at Kelley in count 6) and also one of the two crimes against Kelley because they had the same purpose

. Defendant is correct to a point

-- the court should have stayed one of
the four terms of punishment associated with the burglary or the crimes against Kelley (there were two) or Evans. But the court was correct in punishing defendant for both the8

criminal threat against Kelle y in count 2 and pointing the gun at Kelley in count 6. We explain below. The prosecutor argued in closing that the burglary occurred when defendant entered the duplex to commit assault wi th a firearm against Evans and Kelley or the criminal threat again st Kelley

. “Burglary consists of entry into a house or other specified
structure with the intent to commit a felony. (Pen. Code, § 459.) Thus, ordinarily, if the defendant commits both burglary and the underlying inte nded felony, Penal Code
section 654 will permit punishment for one or the other b ut not for both. ” ( People v.
Centers (1999) 73 Cal.App.4th 84, 98.) Following this logic, one of defendant’s terms imposed on coun ts 1, 2, 4, or 6 must be stayed

. But the court was correct in punishing defen dant for both the criminal threat against Kelley in count 2 and pointing the gun at Kelley in count 6 because these acts had separate objectives. Defendant committed the assault with a firearm when he pointed the
gun at her head. His objective could reas onably be perceived to be harming or killing
her. Separately , but near in time (here, right after pointing the gun at her), defendant

sa i d, “ ‘Stop following me and stay away from Wilbur.’ ” With this criminal threat, his objective could reasonably be pe rceived to be instilling fear in Kelley so she would not
follow him and would leave Wilbur alone. As such, defendant did not simply commit the
criminal threat to bolster the assault.
C

The Court Erred In Believing It Had To Impose Five Mandatory Consecuti ve 25

- Year

- To

- Life Terms Defendant contends (and the People concede) the court misunderstood its sentencing discretion when it erroneously believed it had to impose five consecutive 25

- year

- to

- life sentences for the strike offenses ( count 1 for first degr ee burglary, count 2 for criminal threats to Kelley, count 4 for assault with a firearm on Evans, count 6 for assault9

with a firearm on Kelley, and count 8 for grossly negligent di scharge of a firearm). We
agree. In the People’s s entencing brief, they ar gued that defendant should receive a
minimum of three consecutive 25

- year

- to

- life terms, one for the burglary in count 1 that was complete when defendant entered the duplex, one for the grossly negligent discharge of a firearm outside the dupl ex, and at le ast one for counts 2, 4, and 6 (count 2 for criminal threats to Kelley, count 4 for assault with a firearm on Evans, or count 6 for assault with a firearm on Kelley), conceding those three crimes were committed on the
same occasion and arose from the same set of fact s. The People cited People v. Deloza ( 1998) 18 Cal.4th 585 for the proposition that the court has the discretion in a strikes case

to decide whether to sentence defendant to consecutive or concurrent sentences if the
crimes were committed on se parate occasions or arose from a different set of facts

. The trial court , at the sentencing hearing , heard defendant’s argument for concurrent sentences, but then it stated that “multiple crimes sentenced as third strikes must be consecutively sentenced whether or not the crimes occurred on the same occasion or on the same operative facts.”
The trial court was wrong. When a defendant is sentenced on multiple felony

count s under the strikes law, the trial court mus t impose consecutive sentences unless the

c urrent offense were committed “ on th e same occasion” or arose “ from the same set of operative facts .” (Pen. Code, § 667, subd. (c)(6) & (7).) In Deloza , where the trial court stated that it must sentence defendant consecutively under the strikes la w because “ it
would be unlawful for me to pro ceed in any other fashion,” the California Supreme Court held, “the trial court misunderstood the scope of its discretion to impose con current sentences for defendant’ s current convictions, and erroneously belie ved consecutive sentences were mandatory. Therefore, the case is remanded to the trial court for resentencing. ” ( People v. Deloza , supra , 18 Cal.4th at p. 600. ) The same is true here.10 DISPOSITION Defendant’s sentence is vacated and the case is remanded for resentencing. On remand, the trial court shall : (1) strike 50 years for the 10 prior serious felony conviction
enhancements that were never alleged by the People ; (2) exercise its discretion to sentence defendant consecutively or concurrently on the strike offenses ( count 1 for first degree burglary, count 2 for criminal threats to Kelley, count 4 for assault with a firearm on Evans, count 6 for assault with a firearm on Kelley, and count 8 for grossly negl igent discharge of a firearm); and (3) stay the punishment on either count 1 for first degree burglary, count 2 for criminal threats to Kelley, count 4 for assault with a firearm on Evans, or count 6 for as sault with a firearm on Kelley.

/s/ Robie, J.

We concur:

/s/ Nicholson, Acting P. J.

/s/ Hoch, J.