People v. Carbajal

1

THE PEOPLE, Plaintiff and Respondent, v. CHESRE CARBAJAL, Defendant and Appellant.

F086394

California Court of Appeals, Fifth District

November 22, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County, No DF016710A Michael G. Bush, Judge.

James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Jessica A. Eros, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

Defendant Chesre Carbajal was convicted by jury in 2023 of attempted murder, shooting at an occupied motor vehicle, assault with a fireman, and being a felon in possession of a firearm. (Pen Code, §§ 664/187, 246, 245, subd. (a)(2), 29800 subd. (a)(1).)^[1] The jury also found the attempted murder was willful, deliberate and premeditated, and found the sentence enhancement allegations for personal and intentional discharge of a firearm causing great bodily injury (GBI) or death, personal use of a firearm, and personal infliction of GBI true.^[2] (§§ 189, subd. (a) [count 1], 12022.53, subd. (d) [counts 1-2], 12022.5, subd. (a) [counts 1-3], 12022.7, subd, (a) [counts 1-3].) In a bifurcated proceeding, the trial court found that defendant had one prior serious or violent felony conviction within the meaning of the "Three Strikes" law and a prior felony conviction enhancement allegation. (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d).) The court also found the following sentence enhancement allegations true: the crime involved great violence, defendant was armed with or used a weapon, defendant engaged in violent conduct that indicates a serious danger to society, defendant had numerous prior convictions, and defendant served a prior prison term. (Cal. Rules of Court, rules 4.421(a)(1)-(2), (b)(1)-(3).)^[3]

At sentencing, the trial court declined to strike or dismiss defendant's prior strike conviction under Romero^[4] and declined to strike or dismiss any of the sentence enhancements. (§ 1385.) Pursuant to the Three Strikes law, the trial court sentenced defendant to seven years to life, doubled to 14, for attempted murder with a consecutive term of 25 years to life for the firearm enhancement and a five-year term for the prior felony conviction enhancement. The court also imposed four years for personal use of a firearm and three years for personal infliction of GBI, stayed under rule 4.447. Sentences on the remaining counts were imposed and stayed under section 654.^[5]

Defendant timely appealed. He seeks reversal of his convictions for attempted murder, shooting at an occupied vehicle, and assault with a firearm as unsupported by substantial evidence. He argues that the victim's uncorroborated identification of him was inherently improbable and, therefore, the prosecutor failed to prove beyond a reasonable doubt that he was the perpetrator. Defendant also challenges his sentence on the ground that the trial court erred under section 1385 as amended by Senate Bill No. 81. (Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81).) In the event we find he forfeited his claim of sentencing error by failing to object, he argues defense counsel rendered ineffective assistance of counsel (IAC).

The People contend defendant's convictions are supported by substantial evidence, defendant forfeited his claim of sentencing error, and defense counsel was not ineffective. On the merits, the People contend the trial court did not abuse its sentencing discretion.

We reject defendant's substantial evidence challenge to his convictions on counts 1 through 3, we find he forfeited his claim of sentencing error, and we reject his IAC claim. Accordingly, we affirm the judgment.

FACTUAL SUMMARY

I. Shooting

In February 2022, Andres D. arranged for AAA to tow his aunt's inoperable red Hyundai from her former residence at a ranch in Kern County to his other aunt's house.^[6]He borrowed his second aunt's silver Hyundai and met a tow truck driver at the ranch. After the driver loaded the car onto the flatbed trailer, he parked outside the gate and waited for Andres.

Andres had parked on the side of the road facing eastbound. After he closed the gate, a burgundy car he vaguely remembered arriving at the ranch while his aunt's car was being loaded pulled up next to him, facing westbound. The windows of both vehicles were down. Andres did not know the man, but while dealing with his aunt's car, he had seen the man exit a building on the ranch property and get into the vehicle that had just arrived. The man, whom Andres identified in court as defendant, asked if he had been there the day before. Andres said no, and the man told him someone had been there the day before and threatened "to sock [his wife] in the face." Andres said he was not that person and he was just there to get his aunt's vehicle. The man asked if Andres was from McFarland. He said he was not and that he lived in Bakersfield. The man again said someone had threatened his wife and Andres said he was not there yesterday.

The man asked what Andres drove and after he said a white Ford F-150, the man said it was Andres who talked to his wife. Andres again said he was not that person, but the man was "pretty angry" and "was just set on" Andres being the man who had threatened his wife the day before. Andres invited the man to follow him to his aunt's house and see his truck. After the man agreed, Andres said he needed to go. Andres made a U-turn around the man's car and started driving westbound toward his aunt's house. He looked in his rearview mirror and saw the man get out of his car, retrieve a long, black rifle, and aim at Andres's car.

Andres heard what he thought were 10 to 12 shots when he was four or five car lengths away. He was hit in the back of the head and was out of it for a split second. When he came to, his car was swerving. He got back on the road and floored the gas. The car had two flat tires and Andres had gunshot wounds to the back of his head, ear, neck and back. As he drove, he called 911. He made it to his aunt's house, got out of the car, and fell face down on the driveway. His aunt took over on the 911 call and police arrived shortly thereafter.

Andres remained conscious and prior to being transported to the hospital, he told officers a man shot at him with a rifle and he described the man as being slightly shorter than he was, around five feet five inches tall, with orange hair and a big neck tattoo. Andres also said the man was a "wedo," which he explained "is like a Mexican way of saying like a light-skinned Mexican. Like a white-ish Mexican."

At the hospital, an officer told Andres they thought they knew the suspect based on his description, and asked if he would be able to identify him. Andres responded, "Oh hell yeah." Andres was read an admonition, shown a six-pack lineup on a computer tablet, and asked if he recognized anyone. He said, "Yeah." "That fucking guy right there," and selected the fifth photo. He was subsequently shown a printed lineup and again identified the fifth photo, signing his name.

II. Tow Truck Driver's Testimony

The tow truck driver recalled meeting a Mexican man with a beard at the ranch to tow a car to another location. He recalled that the car was older and red, and that it was difficult to load because it would not shift into neutral and had to be dragged onto the flatbed tow truck. After loading the car, the driver pulled out of the property and onto the side of the road to wait for the man, who was going to lead him to the drop-off location.

The man's car was parked further behind the tow truck and the driver was on his phone as he waited.

The driver heard some loud bangs and looked up from his phone. He saw the man driving erratically and swerving all over the road, but he did not see any other vehicles. A tire popped off the man's car and smoke was coming from the car. The driver called his dispatcher and followed behind the man. When they arrived in a residential area, he saw the man get out of his car, bleeding. His dispatcher told him to stay put so he waited and gave a statement after law enforcement arrived.

III. Other Evidence

Jurors saw photographs of the silver Hyundai with exterior and interior damage from bullets, blood on the interior, and two flat tires. They also saw body camera footage of Andres lying on his aunt's driveway, and of the two six-pack photo identifications in the hospital.

A police sergeant testified he was familiar with defendant and had seen him at the ranch a few months before the shooting.

Law enforcement executed two search warrants covering three residences and two vehicles. Inside a white car at the ranch, they found a debit card with defendant's name on it and, in the trunk, they found a black .22-caliber Squires Bingham rifle, a box of .22-caliber Federal ammunition, and a loaded magazine. At the ranch, officers located and photographed four shell casings, but they were unsure if they were relevant because some were extremely old. Further, they were 223 or 556 rounds, which would not operate in a .22-caliber rifle and were not consistent with the ammo box found in the car.

Relevant to the charge of being a felon in possession of a firearm, the parties stipulated that defendant was convicted of a felony prior to the date of the alleged offense.

DISCUSSION

I. Substantial Evidence Claim

Defendant claims entitlement to reversal of his convictions for attempted murder, shooting at an occupied vehicle, and assault because Andres's identification of him as the shooter was uncorroborated and "inherently improbable," and "no rational...