People v. Calderon

• Decision Date: 25 July 1991
• Docket Number: No. G008671,G008671
• Citation: 232 Cal.App.3d 930,283 Cal.Rptr. 833
• Parties: The PEOPLE, Plaintiff and Respondent, v. Danny CALDERON, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 833

283 Cal.Rptr. 833

232 Cal.App.3d 930

The PEOPLE, Plaintiff and Respondent, v. Danny CALDERON, Jr., Defendant and Appellant.

No. G008671.

Court of Appeal, Fourth District, Division 3, California.

July 25, 1991.

Review Denied Oct. 23, 1991.

Gary S. Gorczyca, under appointment by the Court of Appeal, Santa Ana for defendant and appellant.

Daniel E. Lungren and John K. Van de Kamp, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Rudolph Corona, Jr., Supervising Deputy Atty. Gen., Barry J.T. Carlton and Tim Nader, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

SONENSHINE, Acting Presiding Justice.

Danny Calderon, Jr., became involved in a quarrel with Hiep Bui and another man near the handball courts at Memorial Park in Santa Ana. Calderon retrieved a shotgun from his car and shot at Bui four times. He missed Bui, but hit seven-year-old Felix Angel, who was playing five feet away. Angel suffered a broken arm and a skull fracture. Although he denied it, Calderon was suspected to be a member of a street gang and Bui a member of a rival gang. Calderon maintained he was drunk at the time and was intending only to scare Bui.

Pursuant to a plea bargain, Calderon pleaded guilty to two counts of attempted murder and two counts of assault with a deadly weapon, admitting allegations he personally used a firearm and inflicted great bodily injury on Angel. The indicated sentence was 12 years. In exchange for the plea, the prosecution dismissed allegations the attempted murders were willful, deliberate, and premeditated. (Pen.Code, § 189.)

On the same day his plea was accepted, Calderon waived probation and asked for immediate sentencing. He received the middle term of seven years on count I (the attempted murder of Angel), three years for the great bodily injury enhancement, and two years for the weapon enhancement, both attached to that count. Sentences were not imposed on the remaining counts.

On appeal, Calderon asserts the plea must be set aside because he was not fully advised of the consequences and the court failed to obtain a proper factual basis for the plea. (Pen.Code, § 1192.5.) He also claims the court could not lawfully impose sentences for both the gun use and the great bodily injury enhancements.

I

Calderon first contends he was not apprised that his admission to the great bodily injury enhancement rendered him ineligible for probation. (Pen.Code, § 1203.075.) Because this constitutes a direct consequence of his plea, Calderon claims he should be allowed to withdraw it. (People v. Caban (1983) 148 Cal.App.3d 706, 711, 196 Cal.Rptr. 177.)

Calderon had been given an indicated sentence of 12 years as a part of his plea bargain. Before obtaining the appropriate waivers, the following exchange took place: "The Court: [T]he defendant will be pleading to a previously indicated sentence by Judge Brown; is that correct, gentlemen? [p] [The Prosecutor]: That's correct. [p] The Court: How do you aspect [sic] to arrive at that sentence, gentlemen? [p] [Defense Counsel]: To sentence on count I to the mid range, seven years, plus the three year enhancement for 12022.7 and two years for 12022.5. [p] The Court: And with that indicated sentence the defendant wishes to enter a plea of guilty? [p] [Defense Counsel]: That's correct. [p] The Court: You do not wish to make application for probation or probation report? [p] [Defense Counsel]: That's correct."

Prior to accepting the plea, the trial court said to Calderon: "You understand that the court has indicated that a sentence of 12 years in prison for a plea to counts I through IV is appropriate; do you understand that?" After Calderon responded affirmatively, the court continued: "That's what the court has indicated that you would receive; do you understand that?" Calderon said he did. After the plea was entered, the court inquired, "Does the defendant formally waive his right to apply for probation? [p] The Defendant: Yes. [p] The Court: Does he waive his right to have a probation report prepared sent with the packet to state prison? [p] The Defendant: Yes." Calderon then requested immediate sentencing.

The portions of the record quoted above demonstrate there was an indicated sentence of 12 years negotiated with Judge Brown. After the matter was transferred to Judge Fitzgerald, he asked counsel to recite the agreement, which Calderon's counsel did in detail. Later, Judge Fitzgerald probed Calderon personally and advised him that the 12 years was "appropriate" and was what he "would receive" upon pleading guilty. In other words, it was not simply an indicated sentence; it was the sentence. Calderon said he understood. He then waived his right to apply for probation and was sentenced immediately.

Counsel and the defendant expressly agreed to the 12-year sentence then imposed and waived application for probation because they expected to receive that sentence. This was not a situation where the 12 years constituted a "lid" or maximum sentence agreed upon by the parties. Had that been the case, counsel presumably would have obtained a probation report and argued for something less than the maximum.

Advising Calderon that probation was prohibited would have been useless and absurd since the defendant agreed to a specified prison term. Even assuming the court had such a duty, the advisements satisfactorily establish Calderon waived any right to probation he may have thought he had. In other words, it is not reasonably probable the result would have been different. (People v. Caban, supra, 148 Cal.App.3d at p. 712, 196 Cal.Rptr. 177.)

II

Calderon contends the factual basis the court obtained from him was insufficient as a matter of law because it asked him only whether he "attempted to kill Hiep Bui" but did not ask him if he did so with malice. ¹ Calderon claims if the court had asked him to recount his version of the facts, he would have said that "while intoxicated he discharged a firearm in an attempt to dissuade an individual from engaging in a fight with a friend." These facts, he insists, would constitute a defense to attempted murder.

In People v. Watts (1977) 67 Cal.App.3d 173, 136 Cal.Rptr. 496, the court explained that a factual basis must be obtained in each case in order "to protect against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in law to recognize that his acts do not constitute the offense with which he is charged. [Citation.] Inquiry into the factual basis for the plea ensures that the defendant actually committed a crime at least as serious as the one to which he is willing to plead." (Id. at p. 178, 136 Cal.Rptr. 496.)

However, the law "does not require the trial court to interrogate a defendant personally in an element by element manner about the factual basis for his guilty plea.... He may, in fact, enter a plea of guilty even though he protests his innocence. [Citation.]" (Id. at p. 180, 136 Cal.Rptr. 496.) Nothing in Watts requires more than the establishment of a prima facie factual basis for the charges. The court here ascertained Calderon intended to kill Bui. Malice is presumed where the intent to kill is present, in the absence of an affirmative defense. (People v. Wickersham (1982) 32 Cal.3d 307, 325, 185 Cal.Rptr. 436, 650 P.2d 311.) Calderon's statement he intentionally tried to kill someone constituted an adequate factual basis for attempted murder. The court was not also required to determine there was no defense to the charge. That was a matter between the defendant and his counsel.

III

There is, however, a defect in the plea. The factual basis for Calderon's guilt of the crimes committed against Angel was premised on the doctrine of transferred intent, i.e., that Calderon intended to kill Bui but injured Angel instead. We asked the parties to submit supplemental briefs on the issue; both concluded transferred intent is inapplicable as a means of assigning liability for attempted murder. We agree.

The transferred intent doctrine is a legal fiction established to attribute liability to a defendant who, intending to kill one person, mistakenly kills another instead. (People v. Suesser (1904) 142 Cal. 354, 367, 75 P. 1093.) The purpose of the rule is "to insure the adequate punishment of those who accidentally kill innocent bystanders, while failing to kill their intended victims.... The transferred intent doctrine is born of the sound judicial intuition that such a defendant is no less culpable than a murderer whose aim is good." (People v. Birreuta (1984) 162 Cal.App.3d 454, 460, 208 Cal.Rptr. 635.)

Where both the intended and unintended victim are killed, one court has held the transferred intent rule is inapplicable because this purpose would not be served. That is, because the defendant could be directly prosecuted for killing the intended victim and separately charged for killing the unintended victim in accordance with his or her level of culpability, the rule is unnecessary. (Ibid.; contra, People v. Carlson (1974) 37 Cal.App.3d 349, 112 Cal.Rptr. 321.) "There is no danger that a premeditated killing will go unpunished or be treated as a manslaughter because the murder of the intended victim will presumably be the subject of prosecution." (People v. Birreuta, supra, 162 Cal.App.3d at p. 460, 208 Cal.Rptr. 635.)

In People v. Czahara (1988) 203 Cal.App.3d 1468, 250 Cal.Rptr. 836, the court agreed with this analysis in a case involving nonfatal injuries to both the intended and unintended victims. Czahara was charged with two counts each of attempted murder and assault with a deadly weapon for shooting at a car in which his former girlfriend and her new paramour were sitting. The court found the reasoning in Birreuta to be persuasive: "[T]here is a difference in culpability between an assailant who deliberately sets out to kill one person and in addition kills another accidentally, and...