People v. Galvan

• Decision Date: 18 February 2020
• Docket Number: B291485
• Parties: THE PEOPLE, Plaintiff and Respondent, v. HERZON GALVAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. HERZON GALVAN, Defendant and Appellant.

B291485

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

February 18, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA463837)

APPEAL from a judgment of the Superior Court of Los Angeles County, Katherine Mader, Judge. Affirmed in part; reversed in part and remanded with directions.

David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Herzon Galvan appeals from a judgment entered after the jury convicted him of two counts of assault with a firearm, discharging a firearm with gross negligence, felony carrying a concealed firearm, and felony vandalism. The jury also found true as to the assault counts that Galvan personally used a firearm. On appeal, Galvan only challenges his conviction of carrying a concealed firearm (count 5). We conclude substantial evidence supports Galvan's conviction of this offense, and on this basis we reject his contention his attorney was ineffective for not moving for a judgment of acquittal. But we agree, as the People concede, there is insufficient evidence to support the special allegation under Penal Code section 25400, subdivision (c)(6),¹ the firearm was not registered to Galvan, which elevated the offense to a felony.

Galvan also contends the trial court violated his due process rights by failing to hold an ability-to-pay hearing before imposing court assessments and restitution fines, relying on this court's opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).

We affirm Galvan's conviction of carrying a concealed firearm but reverse the sentence with directions to the trial court to impose a misdemeanor sentence on count 5. On remand, the trial court should allow Galvan to request a hearing and present evidence demonstrating his inability to pay the court assessments and restitution fines imposed by the trial court. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Prosecution Case

1. Discharging a firearm with gross negligence and felony vandalism (counts 1 and 6)

On December 20, 2017 at approximately 7:30 p.m. Cipriano Pelayo and his wife were sitting in their parked car waiting for their granddaughter, who was attending a taekwondo class. Pelayo heard two to three gunshots, followed by glass shattering from the car parked behind his car. Pelayo saw Galvan pointing a gun at people as Galvan walked down the sidewalk on Martin Luther King, Jr. Boulevard. Pelayo called 911.

2. Assault with a firearm (counts 2 and 3)

The same evening, also around 7:30 p.m., Gerardo Luna and his girlfriend, Karla Vasquez, were walking to Luna's car parked in front of the taekwondo school. Luna heard three gunshots and saw Galvan walking on the sidewalk heading toward him and Vasquez. Galvan had a gun in his right hand about eight to 10 feet away. Luna and Vasquez got into Luna's car. As Galvan walked by the car, he pointed the gun at Luna and Vasquez through the passenger window. After Galvan walked away, Luna and Vasquez called the police. A short time later, Luna and Vasquez heard one to three more gunshots.

3. Carrying a concealed firearm (count 5)

Los Angeles Police Officer Julio Aguilar and his partner responded to the 911 calls. Several witnesses flagged down Officer Aguilar and provided him with a physical description of the gunman. The officers found Galvan in the middle of the blockon Martin Luther King, Jr. Boulevard, holding a gun in his right hand. When Officer Aguilar approached, Galvan "put the gun in his waistband."

At trial the prosecutor asked Officer Aguilar whether Galvan covered the gun with his shirt or "just place[d] it in his waistband," to which Officer Aguilar responded, "I remember him putting it in his waistband, his right side." Officer Aguilar and his partner then ordered Galvan to get on the ground, and Galvan complied. Officer Aguilar arrested Galvan and searched him, finding a loaded .45-caliber Glock gun with one bullet in the chamber and five live rounds in the magazine. The gun was in good working condition.

B. The Defense Case

Galvan testified that on the evening of December 20, 2017 he was carrying a gun as he walked east on the sidewalk of Martin Luther King, Jr. Boulevard on his way home. He carried a gun for self-defense because he had "been shot at several times in [his] life," and a couple was recently murdered outside his house. Galvan knew it was unlawful to carry the gun.

Galvan stopped at a convenience store to purchase a pack of cigarettes. He forgot his wallet, so he asked a group of three men for a dollar. One of the men responded, "I don't have a dollar, but I like your ring." The man lifted up his shirt and displayed a weapon. Galvan got scared, stepped back, and drew his gun. The three men pushed past Galvan and ran.

Galvan was "panicked," and he "placed [his] weapon in [his] waistband" and ran down the street. He heard gunshots behind him, so he quickly ran for cover behind a car. Galvan saw the man who tried to rob him approach with his weapon aimed atGalvan. As the man came toward him, Galvan stepped out and fired two rounds at the man. The man staggered and ran toward a vehicle that had been trailing him, with its rear right passenger door open. Galvan retreated, but when the vehicle passed him, one of its occupants fired at him. Galvan fired back twice, then the vehicle drove off. Galvan did not see any pedestrians that evening, and he denied pointing his gun at any of the witnesses who testified.

On cross-examination, Galvan testified he did not tell the police officers about the men he encountered at the convenience store because he "did not want to admit to being involved in a shooting." The prosecutor asked Galvan whether his gun was registered to him. Galvan responded, "Yes. It should have been." Galvan explained, "I purchased [the gun] from my teacher and . . . security officer Steven Louis. It was a transaction between one of his old students and I. I gave him the money. He gave me the weapon. He had me sign paperwork that stated that ownership would be transferred from his old student to me. He told me that was all I needed to do. And I believed for the last six years the weapon was in my name." The prosecutor then asked, "So I have a document certifying that weapon is registered to someone named Rodney Bingly. That would be incorrect?" Galvan responded, "It should be incorrect, yes." The prosecutor did not introduce into evidence a document showing registration of the firearm.

C. The Verdicts and Sentence

The jury found Galvan guilty of two counts of assault with a firearm (§ 245, subd. (a)(2); counts 2 and 3); discharging a firearm with gross negligence (§ 246.3, subd. (a); count 1); felonycarrying a concealed firearm on his person (§ 25400, subd. (a)(2); count 5); and felony vandalism (§ 594, subd. (a); count 6). As to counts 2 and 3, the jury found true that Galvan personally used a firearm (§ 12022.5, subd. (a)).²

The trial court sentenced Galvan to an aggregate term of 12 years in state prison. The court selected count 2 for assault with a firearm as the base term and imposed the lower term of two years, plus 10 years for the firearm enhancement.³ The court ordered the sentences on counts 1, 3, 5, and 6 to run concurrent with the sentence on count 2. On count 1 for discharge of a firearm with gross negligence, the court imposed the upper term of three years. On count 3 for assault with a firearm, the court imposed the lower term of two years, plus 10 years for the firearm enhancement, for a total of 12 years. On count 5 for carrying a concealed firearm, the court imposed the upper term of three years. The court likewise imposed the upper term of three years on count 6 for felony vandalism.

The court imposed a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) and a $40 court operations assessment (§ 1465.8, subd. (a)(1)) for each of the five counts, for a total of $150 in court facilities assessments and $200 in court operations assessments.⁴ The court also imposed the minimumrestitution fine of $300 (§ 1202.4, subd. (b)) and imposed and suspended a parole revocation restitution fine in the same amount (§ 1202.45). In addition, the court ordered Galvan to pay $520 in victim restitution.⁵ At sentencing, Galvan did not object to imposition of the assessments and fines or raise his inability to pay.

Galvan timely appealed.

DISCUSSION

A. Galvan Has Not Shown Ineffective Assistance of Counsel Because Substantial Evidence Supports His Conviction of Carrying a Concealed Firearm

Galvan asserts his trial attorney provided ineffective assistance of counsel because she failed to move for a judgment of acquittal under section 1118.1 on count 5 for carrying a concealed firearm. To prevail on a claim of ineffective assistance of counsel, a defendant bears the burden to show (1) his or her "'"'counsel's representation fell below an objective standard of reasonableness under prevailing professional norms'"'" and (2) he or she "'"'suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.'"'" (People v. Johnson (2016) 62 Cal.4th 600, 653; accord, People v. Mickel (2016) 2 Cal.5th 181, 198; see Strickland v. Washington (1984) 466 U.S. 668, 687-692.) Because we conclude substantialevidence supports Galvan's conviction on...