Filed 1/29/01

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge.

Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael J. Weinberger and Thomas Y. Shigemoto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

This tragic case arose from a domestic dispute between defendant and his wife, Betty, lasting a few days. After Betty decided to move out of her apartment, she enlisted the help of her mother, Nancy, her sister, Edna, and Edna’s husband, Aaron. While the four were at the apartment packing Betty’s belongings, defendant entered the apartment, went to the patio to retrieve a loaded handgun, reentered the apartment and shot Aaron in the chest, killing him. When Edna intervened, he shot her also and subsequently beat her viciously on the head with the firearm. Defendant was convicted of murder and attempted murder, and received two 25-years-to-life sentences for the firearm use on these offenses under Penal Code section 12022.53, known as the "10-20-life" law. In the published portion of this opinion we consider and reject defendant’s contentions that section 12022.53 violates due process or equal protection by failing the rationality test, and that only a single 25-years-to-life enhancement is authorized under subdivision (f) of that section.

By amended information, defendant was charged with murder (count I; § 187, subd. (a)), attempted murder with premeditation and deliberation (count II; §§ 664/187, subd. (a)), two counts of assault with a firearm (counts III & V; § 245, subd. (a)(2)), and false imprisonment by violence (count IV; § 236). It was alleged as to counts I and II that defendant discharged a firearm, causing death or great bodily injury within the meaning of section 12022.53. With respect to counts II, III and V, it was alleged defendant inflicted great bodily injury within the meaning of section 12022.7. And, regarding counts III, IV and V, it was alleged defendant personally used a firearm within the meaning of section 12022.5, subdivision (a).

Following a jury trial defendant was found guilty as charged, and all the allegations were found true.

Probation was denied, and defendant was sentenced to prison. On count I, defendant was sentenced to a term of 25 years to life, which was enhanced by a term of 25 years to life for discharging a firearm that caused death. A consecutive term of life with the possibility of parole was imposed on count II, which was also enhanced by 25 years to life for discharging a firearm that caused great bodily injury. A consecutive determinate upper term of four years was imposed on count V, increased by ten years for the firearm use and by three years for the great bodily injury enhancement. A consecutive term of eight months was imposed on count IV, enhanced by sixteen months for the firearm use. The total aggregate determinate term was 19 years. The term imposed on count III was ordered stayed.

Timely notice of appeal was filed.

Defendant and Betty Venegas were married in 1981, divorced in June 1992, and had two daughters during the marriage, Christine, age 17, and Raquel, age nine. In 1990, Betty began living in an apartment located at 666 Hume Avenue in Hanford. The lease was in Betty’s name alone, but defendant had a key and could come and go as he wanted. Defendant had been violent toward Betty during the marriage and after the divorce, and she was afraid of him. During the third month of the marriage, he punched Betty on the head, then kicked her in the thigh when she fell. He beat her many times, but she never reported the beatings to police because she was ashamed and feared he might hurt her more. The last beating Betty recalled was in late 1996 or early 1997, when defendant had her strip naked, bend over, and hit her bottom with a belt. On one occasion, defendant was angry and told her that if Betty’s family got involved, he would get even.

After Betty first got the apartment in December 1990, defendant stayed there for only one month, until sometime in 1993. Later, in 1993, defendant would sometimes stay at Betty’s apartment, and at the residence of his mother and sister. Betty received public assistance and paid all the rent except one month in 1998, when defendant paid a half-month’s rent.

On Friday, June 5, 1998, Betty drove defendant to and from work because his truck had broken down. She planned to attend a "Pampered Chef’s" party at 6:30 that evening. Defendant wanted Betty to return before 9:30 p.m. so he could borrow her car to pick up some items in Corcoran to sell at a yard sale the next day. Betty agreed, but told defendant not to get upset if she ran late.

Betty left the party at approximately 9:30. When she entered the doorway of her apartment, defendant began to yell at her for not returning before 9:30. Betty returned to her car without saying anything because she wanted to avoid an argument. As she began to leave in her vehicle, her daughter Raquel asked her to come back because defendant was no longer angry. Betty refused, stating she was leaving either to call the police or going to the home of defendant’s sister, Christine "Tensha" Klisser. She drove to Klisser’s house and brought her back to the apartment to see if Klisser could get defendant to calm down and talk. However, defendant angrily told Klisser to "get that bitch out of my house."

Betty and Klisser left, but returned after driving around for awhile. Klisser entered the apartment alone, and later informed Betty that defendant wanted her vehicle over the weekend, and would return it on Monday. In addition, defendant said the apartment no longer belonged to Betty, and she was to stay away. Betty called her sister, Edna Coelho, and entered the apartment briefly to retrieve some clothing, when she noticed defendant had left in her car. Edna and her husband, Aaron Coelho, said Betty could stay with them that night.

During the weekend of June 6 and 7, Betty called defendant and received an angry message, which made her realize she might not be able to return to her apartment as she had originally planned. In another call, Betty asked to be allowed inside to retrieve her clothing. Defendant argued and hung up. During a subsequent conversation defendant had somewhat calmed down, and said Betty could return alone.

On June 8, 1998, Nancy Venegas went to the Salvation Army, where she ran into defendant and Klisser. Defendant told Nancy to tell Betty that he would leave Raquel’s belongings at Klisser’s house, and if Betty wanted her clothes, she should call and leave a message regarding what time she would be there so he could meet her. Nancy suggested that she go with Betty and a police officer to get Betty’s things. Defendant said, "‘No, don’t do it.’" Defendant told Nancy that Betty could go to the apartment alone, but no one else could come with her. That day, while at Edna’s house, Betty spoke with Edna, Edna’s mother-in-law, Juanita, and Nancy, about the situation. Betty only wanted to return to get her clothing, but Edna and Juanita convinced her she should get all her belongings.

That night, Betty, Edna and their mother, Nancy "Palmy" Venegas, were at Klisser’s house along with defendant. Defendant had changed the lock on the apartment door, and Betty asked him to give her the key so she could get her things out. Defendant refused, and said he had brought a few of her things in a bag, which was on the floor. He said he would bring the rest little by little, and she could pick them up at Klisser’s residence. Betty replied that she preferred to pick up all her things at once, but defendant said she would have to wait. Defendant seemed normal and no longer angry. Klisser also refused to intervene on Betty’s behalf, so Betty, Edna and Nancy left.

The three went directly to Betty’s apartment at approximately 10:30 p.m. Betty spoke to the manager about letting Betty into her apartment since her key did not work the deadbolt lock. The manager did not let her in, so Betty unsuccessfully tried to slide open a window. Eventually Betty kicked the door open. She went straight to the telephone and called police for protection in case defendant showed up, and began packing some of her clothing. An officer arrived shortly after, and Betty explained the situation. Betty took some clothes and a few other items. However, she could not lock the door when she left because she had damaged the doorjamb.

The next morning, June 9, at about 7:15 a.m., Betty returned to her apartment with Edna, Aaron and Nancy. Aaron drove his Toyota pickup truck. Betty warned the others to be careful because defendant owned a gun. She pushed the door open and went in with Aaron to see if defendant was inside. Betty noticed some of her furniture was missing, and upon Aaron’s suggestion she called the police for protection and to report the missing items. Betty then began packing in the living room while Edna, Aaron, and Nancy packed items in the kitchen.

About a half-hour after their arrival, defendant entered the apartment, glared at Edna and Aaron, and then at Betty. He appeared angry when he looked at Betty. Defendant said nothing, but walked through the living room and out onto the patio. He reached into a plastic bucket and pulled out a brown rag. Betty had seen defendant’s gun wrapped in a similar rag. Sensing danger, Betty ran out of the apartment without saying anything. She kept looking back as she ran, thinking he was right behind, running after her. Edna continued packing while defendant went to the patio. When she looked up again, defendant was standing in front of her and Aaron, pointing a gun at them with his arm extended straight out from the shoulder. Nancy saw defendant with the gun and said, "‘Aaron, watch it, Robert’s got a gun.’" Nancy then heard a clicking sound, like the cocking of the gun. Aaron stated to defendant that they were not there to cause any trouble, and were only helping Betty move her things out. Before he could finish, defendant began shooting at Aaron. Defendant was about ten feet from Aaron when he fired three times in rapid succession with his arm still extended. Aaron clutched his chest, and Edna tried to get the gun away from defendant.

Nancy ducked behind the pantry door, and Edna was able to grab defendant’s wrists and hold them above his head. They struggled, and defendant tried to point the gun down toward Edna’s head. Defendant pushed the barrel down and fired a shot, hitting Edna in the back left side of her head, causing it to feel hot. Right after that, defendant fired another shot that Edna felt in her left shoulder and knocked her to the floor. Meanwhile, Betty, who was still running, heard three shots and then another two shots in succession.

Defendant went out the front door, and Edna crawled to the front door to try to lock it but realized the lock was broken. As she crawled back to the front room, defendant returned, and Edna attempted to defend herself by holding a chair in front of her while on her knees. Defendant pointed the gun to Edna’s forehead and stated, "‘Don’t make me, don’t make me, don’t make me.’" Edna could only think of her two young children being without parents. She began pleading for her life, telling defendant, "‘Robert please don’t. My babies, my babies.’" Defendant began beating Edna’s head very hard with the gun until she fell to her stomach. In the pantry, Nancy could hear defendant beating Edna, "[j]ust banging [her] with the gun."

After Edna slumped to the floor, defendant pointed his gun at Aaron’s head. Both Aaron and Edna begged defendant not to kill him. Edna could not tell whether defendant attempted to pull the trigger, but the gun did not go off. However, defendant then walked to the back bedroom calling for Palmy and Betty. Aaron told Edna to get out and run. Edna hesitated, but then went to look for the police. Since the police were not outside, Edna asked a girl to call them.

Meanwhile, Nancy heard defendant calling for her and Betty. Thinking that defendant was outside the apartment, Nancy came out of the pantry and went down the hall. Unexpectedly, she bumped into defendant, who was coming from the bedroom. Nancy ducked into the bathroom and attempted to lock the door. However, defendant placed his foot at the end of the door, and she could not close it all the way. Defendant put his face into the bathroom and stated, "‘Palmy, why did you make me do it? It’s all your fault.’" After saying this, defendant removed his foot and Nancy was able to close the door. She stayed in the bathroom until she heard the sounds of a police radio. Subsequent examination of the bathroom door showed it had a hole near the bottom that appeared to have been caused by a kick. About five feet above the floor was a hole through the door, which appeared to have been made by the muzzle of a gun.

Hanford Police Investigator Blodgett responded to Betty’s apartment and found a pistol on a bedroom nightstand. The cylinder was in place and the hammer was cocked. The trigger guard was smashed against the trigger, and there was blood on the gun. After defendant was arrested, Blodgett took a taped statement in which defendant confessed to the shootings. Blodgett summarized defendant’s statement:

Edna received emergency treatment to her head. There were at least four large wounds with irregular edges caused by blunt force trauma, and one that was a straight linear wound with some burning of the skin. Being hit with a handgun could have caused the three blunt force trauma wounds. These wounds were stapled shut, and the linear wound was sutured. Edna also had a gunshot wound to her left shoulder, which was in line with the linear wound. The copper-jacketed bullet that shattered Edna’s clavicle was surgically removed, and was potentially fatal. Either one or two shots could have caused the gunshot wounds.

An autopsy of Aaron Coelho established he had a gunshot entry wound on the left side of his chest, which traveled left to right and front to back at a 45-degree upward angle. The bullet penetrated Aaron’s left lung and pulmonary blood vessels, went through his spine into the soft tissue of his back, and was recovered from the scapulary area around the shoulder blade. The slug was a semi-jacketed hollow point bullet. Aaron bled to death as a result of the gunshot wound.

Law enforcement returned to Betty’s apartment on June 12, 1998, to complete its investigation. Evidence, including a piece of cardboard with defendant’s writing on it was seized. A "Black military mechanics bag" containing .38 caliber ammunition and defendant’s military dog tag was found in the northeast bedroom. Two of the unfired cartridges that were found in the black bag had inscriptions on them: "saupage de mort fer" on the casings and "you lose" on the projectile. Two expended bullets were located on the kitchen floor of the apartment. One of these projectiles had the letters o - u, and o - s – e inscribed on it.

The pistol recovered from the apartment was a .38 caliber, double-action revolver. When examined at the crime lab, it was found inoperative because the trigger guard was bent and prevented the trigger moving forward to the firing position. When the trigger guard was cut off, the gun became operable. The cylinder contained six expended casings. Three were for semi-jacketed hollow point projectiles and three for full metal jacket projectiles, and they were in alternating order. Two of the expended casings had the inscription "saupage de mort fer." The bullets were consistent with the ammunition found in the black military bag. Two projectiles, one with a semi-jacketed hollow point and the other with a full metal jacket, were lodged in the barrel of the gun and had to be drilled out. This was probably due to a "squib load." The criminalist explained that a squib load is one where the cartridge had insufficient gunpowder or the gunpowder lost effectiveness due to exposure to moisture. With the two slugs stuck in the barrel, the pistol was incapable of firing projectiles.

Defense

Klisser, defendant’s sister, testified that defendant was artistic and made knickknacks. He sometimes placed the name "Dead Iron Salvage Company" on his works of art.

Defendant testified that about a month after Betty rented the apartment on Hume Avenue, he was sentenced to prison for 13 months on a receiving stolen property conviction. He and Betty dissolved their marriage in 1992, but he stayed with her subsequent to his release from prison. Betty asked him to return and help with their children and expenses.

In 1996, defendant attempted suicide by cutting his wrist after an argument with Betty. He was transported to the hospital emergency room and received stitches but failed to keep an appointment for mental health counseling. He denied ever hitting Betty.

Two days after the failed suicide, defendant acquired the .38 Special revolver so his next suicide attempt would not fail. Defendant was familiar with firearms, having served in the Army from 1978 to 1980. While in the military, he would write his serial number on his bullets for identification. He and other army troops would also write different messages on the bombs, such as "you lose," before sending them off during mortar duty. After purchasing bullets for target practice in 1996 and/or 1997, defendant inscribed some of them at that time. To supplement his income, defendant sold arts and crafts or restored antiques under the name "Dead Iron Salvage Company." He attempted to write this name in French when he inscribed "saupage de mort fer" on some of his bullets. He also wrote the phrase "you lose" and other messages on some of his bullets.

In 1997, defendant’s relationship with Betty changed because she was less concerned with her children and used money on herself that defendant had given her for the children. She became more selfish, and they began to live separate lives while living together in the apartment. Defendant intended to repair his truck and move to the state of Washington, where work was available.

By Friday, June 5, 1998, defendant was still working on getting his truck in running condition. He thus relied on Betty for transportation. One day he asked to borrow Betty’s car so he could pick up items in Corcoran that he intended to sell at a yard sale the following morning. Betty agreed but told him she needed it to attend a party, and would be back at 9:00 p.m., at the latest. Defendant told her not to make it any later. However, Betty did not return until about 10:40 or 11:40 p.m. When Betty walked in the door, defendant asked her what had happened in a conversational tone. She looked at defendant "real cross like something was wrong," turned around, and walked out. She never returned that night.

Defendant changed the locks the next day. Betty returned to the apartment at about midnight on Saturday, June 6, with Klisser. Klisser told defendant Betty was going to live with her sister and wanted her clothes. Defendant told Klisser to tell Betty to come at a different hour. However, he also requested to borrow Betty’s car for work, and Betty left the car for him. Betty did not want to go to the apartment alone to pick up her clothes and defendant did not want her to bring anyone to the apartment with her. They compromised by agreeing that defendant would drop off her clothes and Betty would pick them up at Klisser’s house.

On Sunday, June 7, defendant met Betty at Klisser’s house when he dropped off some clothes. Defendant told her he was going to put the furniture in storage and Betty disagreed. Betty wanted to go to the apartment and pick up her own things, but defendant did not want her to bring anybody with her, and she refused to go alone. From June 6 to June 9, defendant repeatedly told Betty not to bring anybody to the apartment.

On Monday, June 8, defendant saw Nancy at the Salvation Army and told her Betty was to continue to retrieve her clothes at Klisser’s house. That night, defendant learned Betty had broken the apartment door. He determined from police that they were aware of it and it had been done with the manager’s consent. Defendant tried to repair the door but could not, so he removed some valuables that night. Defendant had to remove his gun and ammunition from his metal strong box to fit other valuables he was taking. He did not want to take the gun with him in case he was pulled over by police, so he put it in a bucket in the patio. The battery on the truck he had borrowed died at Klisser’s house, so defendant spent the night at that location.

With the battery still dead on the morning of June 9, defendant walked to Betty’s apartment. When he got to the driveway, he saw Aaron’s Toyota pickup truck. He entered and saw Edna and Aaron, packing by the kitchen table. Betty asked him about the missing TV, VCRs, and other items. Nancy walked up behind Betty, and they all took a couple of steps toward defendant with their hands on their hips. Aaron thought the situation was humorous, which made defendant feel humiliated. Defendant simply walked to the patio and retrieved his gun. He saw Betty run from the apartment. Defendant walked straight toward Edna with the gun pointed at her and mumbled something to the effect of "I’m sorry," and "nothing personal." As Edna lifted her left hand and leaned forward, defendant shot her and she went down. Aaron then flipped the table in front of him. Defendant took some steps back and fired twice in rapid succession as Aaron stood behind the table. All of a sudden, the next thing defendant knew, he was outside and confused, as though he had just woken up. He did not recall calling out for Betty.

Defendant walked into the patio looking for Betty. He reentered the apartment and saw Edna on her hands and knees. She crawled to defendant and repeatedly said, "‘My baby, my babies.’" Defendant shoved Edna toward the front door and told her, "well, go to your babies … get out of here .…" Defendant kept pushing her and Edna kept coming back trying to grab him. Defendant started backing up, and then he struck two blows as hard as he could with the gun to Edna’s head. Edna "balled up" and defendant stopped hitting her.

Defendant then tried to shoot himself in the head but the gun would not fire. He opened the cylinder, saw that all the cartridges were expended and dropped it. Defendant looked for more ammunition. He noticed the bathroom door was shut, so he went in and asked Nancy "why did you do this?’ Nancy replied she had done nothing, and defendant stated: "no, you brought them here. I asked you not to." Defendant retrieved the gun and struck the bathroom door with it. He also kicked the door, again asking why Nancy had brought them.

Not finding the ammunition by his bed, defendant cut his wrists with a steak knife. He then hid in a neighboring apartment and wrote the note to his children subsequently found by police.

Defendant never intended to shoot anyone except himself when he first retrieved his gun from the patio. He was in shock and stunned. When he shot Edna and Aaron, he really only wanted them to leave the apartment but could not articulate his desire.

Defendant contends the evidence is insufficient to support the jury's finding of premeditation and deliberation with respect to the murder of Aaron Coelho.

The categories identified in People v. Anderson, supra, 70 Cal.2d 15, are not an exhaustive list, nor does Anderson require these factors be present in some special combination or that they be accorded a particular weight. Instead, "Anderson was simply intended to guide an appellate court’s assessment whether the evidence supports an inference that the killing occurred as a result of preexisting reflection rather than unconsidered or rash impulse." (People v. Pride (1992) 3 Cal.4th 195, 247; People v. Perez (1992) 2 Cal.4th 1117, 1125.)

The facts relevant to the shooting death of Aaron support a positive finding regarding all three Anderson factors listed above. There was some evidence of planning by defendant because he went outside the apartment and retrieved his fully loaded .38 caliber revolver shortly before committing his crimes. After taking his gun out of the bucket and watching Betty run for her life, defendant entered the apartment, went toward Aaron, pointed the gun and shot at him two or three times, striking him once in the chest. There was also evidence of motive. Defendant was angry that Betty and/or Nancy had brought Aaron and Edna to the apartment to help Betty obtain her things. Finally, there was evidence of a preconceived plan because defendant aimed at Aaron’s torso, and then fired from close range without any provocation from Aaron.

Defendant argues there was no evidence of activity that showed he planned to kill Aaron that day. Further, he notes there was no way he could have known before arriving at the apartment that Aaron would be inside. However, defendant saw Aaron’s Toyota pickup truck outside before he entered. In any event, there is no requirement that the planning activity be long term. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ." (People v. Thomas (1945) 25 Cal.2d 880, 900.)

Here, without any provocation, defendant calmly went to the patio and retrieved his fully loaded handgun, walked into the apartment, and shot Aaron without saying a word. The jury could infer evidence of planning based on defendant’s actions. (People v. Haskett (1982) 30 Cal.3d 841, 850 [obtaining a kitchen knife after entering the residence but before the killings was evidence of planning]; see also People v. Adcox (1988) 47 Cal.3d 207, at p. 240 [there was evidence of prior planning in that defendant took his loaded rifle to the unarmed victim's position by a river bank and shortly thereafter used it to kill him]; People v. Miranda (1987) 44 Cal.3d 57,  87 [the fact the defendant brought a loaded gun into the store and shortly after used it to kill an unarmed victim reasonably suggested that murder was considered in advance], disapproved on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4; People v. Wright (1985) 39 Cal.3d 576, 593, fn. 5 [defendant obtained a loaded weapon before seeking out victim]; People v. Alcala (1984) 36 Cal.3d 604, 626 ["when one … brings along a deadly weapon which he subsequently employs, it is reasonable to infer that he considered the possibility of homicide from the outset"] People v. Velasquez (1980) 26 Cal.3d 425, 435 [jury could infer deliberation and premeditation on basis that codefendant restrained the victim while defendant held him at gun point for a brief period before shooting him].)

With regard to motive, the evidence established anger motivated defendant to kill. In People v. Bloyd (1987) 43 Cal.3d 333, defendant lived with his victim. On the night the victim was killed, defendant and the victim were heard to be arguing during the evening and "they ‘cussed’ at each other primarily ‘over the kid.’" (Id. at p. 342.) The court held this was sufficient to support a finding that the defendant was motivated to kill because of anger. (Id. at p. 348.) Similarly, in this case the weight of the evidence established defendant was angered by Betty’s decision to go against his wishes. He had told her at least four times, and also advised her mother, that she was not to go to her apartment unless she went alone. The only logical inference was that defendant was angry with Betty for showing up with her family, and he took his anger out on her family when she ran out for safety. (People v. Miranda, supra, 44 Cal.3d at p. 87 [anger as motive sufficient where defendant testified he became angry over victim's repeated refusal to sell him beer after 2 a.m.]; People v. Wright, supra, 39 Cal.3d at p. 593, fn. 6 [defendant’s prior relationship with the victim based on two encounters on the night of the killing sufficient to establish motive of retaliation]; People v. Arcega (1982) 32 Cal.3d 504, 519 [defendant motivated to kill because he felt anger and frustration by what he perceived as victim's unfair and cruel treatment of him].) As stated in People v. Lunafelix (1985) 168 Cal.App.3d 97, 102, "the law does not require that a first degree murderer have a ‘rational’ motive for killing. Anger at the way the victim talked to him . . . may be sufficient . . . ." By defendant’s own testimony, he was angry with Aaron for finding the situation humorous. "[T]he incomprehensibility of the motive does not mean that the jury could not reasonably infer that the defendant entertained and acted on it." (People v. Pensinger (1991) 52 Cal.3d 1210, 1238; see also People v. Proctor (1992) 4 Cal.4th 499, 529 [motive not clear].)

Finally, the manner of the killing evidences premeditation and deliberation. Defendant walked from the patio straight toward Aaron with the gun pointed at him and fired two or three shots from close range, about ten feet, into Aaron’s chest. Aaron attempted to explain he was not there to cause any trouble, but defendant did not let him finish his sentence before shooting him. As in People v. Wright, supra, 39 Cal.3d at pages 593-594, the manner of the killing tends to support the finding of premeditation and deliberation. In Wright, the defendant did not hesitate to fire but shot as soon as he saw the victim. (Id. at p. 594.) "The fact that defendant shot his victim four times at close range could well support an inference by the jury that the manner of killing was ‘particular and exacting.’" (Ibid.)

The conclusion that defendant premeditated and deliberated killing Aaron is bolstered by the absence of any provocation. Aaron did nothing to provoke defendant to shoot him. There was no evidence the shooting was done in a rash manner. "The utter lack of provocation by the victim is a strong factor supporting the conclusion that appellant's attack was deliberate and reflectively conceived in advance." (People v. Lunafelix, supra, 168 Cal.App.3d at p. 102 and cases cited; see also People v. Gulbrandsen (1950) 35 Cal.2d 514, 520; People v. Cook (1940) 15 Cal.2d 507, 516.)

In sum, we conclude there was sufficient evidence to permit a rational trier of fact to find premeditation and deliberation beyond a reasonable doubt in count I. As a result, defendant’s contention that the crime must be reduced to voluntary manslaughter is also without merit.

Defendant contends the court abused its discretion under Evidence Code section 352 by admitting evidence that bullets fired by defendant, and others found in his ammunition bag, had certain English and French inscriptions on them. We reject the contention that the court abused its discretion.

The prosecutor sought to introduce, as evidence of premeditation or intention, that a black bag containing .38 caliber ammunition and defendant’s military dog tag was found in the northeast bedroom. Two of the unfired cartridges found in the black bag had inscriptions on them: "saupage de mort fer" on the casings and "you lose" on the projectile. Two expended bullets were found on the kitchen floor of the apartment. One of these projectiles had the remnants of two words inscribed on it, The remnants were the letters o - u, and o - s - e. The pistol recovered from the apartment was a .38 caliber, double-action revolver. The cylinder contained six expended casings. Two of the expended casings had the inscription "saupage de mort fer." The prosecutor had spoken to an expert in the French language who said there is no such word as "saupage" in the French language, that it must be a misspelling. However, "de mort fer" could be interpreted as "iron plate of death."

Defendant argued the evidence should be excluded under Evidence Code section 352 because any relevance was outweighed on four grounds. First, it would confuse the issues for the jury. Second, it would invite speculation about who inscribed the bullets and under what circumstances. Third, it would invite "unfounded sinister connotations about [defendant’s] propensity to write slogans on things .…" Finally, it would result in an undue consumption of time.

The court ruled:

Evidence Code section 210 provides that " ‘Relevant evidence’ means evidence … having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." "The trial court is vested with wide discretion in deciding relevancy." (People v. Warner (1969) 270 Cal.App.2d 900, 908.)

In this case, the only material issue with respect to defendant’s act of killing Aaron was his mental state. Whether the killing was committed with malice aforethought and premeditation and deliberation was the only issue contested at trial, since there was no dispute defendant shot and killed Aaron. While not disputing his mental state was at issue, defendant contends the evidence had only minimal probative value on the issue. Even if we were to determine the evidence had little probative value, the court did not abuse its discretion by admitting it for a limited purpose. A court’s exercise of discretion in admitting or rejecting evidence will not be disturbed on appeal absent a manifest abuse of that discretion resulting in a miscarriage of justice. (People v. Cain (1995) 10 Cal.4th 1, 33.) The exercise of that discretion will not be disturbed on appeal unless the probative value "clearly is outweighed" by the prejudicial effect. (People v. Crittenden (1994) 9 Cal.4th 83, 133-134.) "We have described the ‘prejudice’ referred to in Evidence Code section 352 as characterizing evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues." (Id. at p. 134.) No abuse of discretion is manifest here. The evidence was not substantially outweighed by the probable necessity of an undue consumption of time. Nor did the evidence create a substantial danger of undue prejudice, confusion of the issues or of misleading the jury. (Evid. Code, § 352.)

Here, the evidence was not the type that uniquely tends to evoke an emotional bias against a party as an individual. Further, the court took into consideration defendant’s concerns regarding who wrote the inscriptions and lessened the potential for danger of undue prejudice by prohibiting argument that defendant had done so, absent additional evidence warranting this conclusion. Nothing suggests the evidence would confuse the jury or require an undue consumption of time, especially considering the materiality of the issue involved. The court’s careful weighing of the matter and its limitation on argument shows it did not abuse its wide discretion by admitting relevant evidence.

In any event, defendant fails to establish the admission of the evidence resulted in a miscarriage of justice. Defendant explained he had written the phrases many months before the shooting. The French phrase was defendant’s attempt to write his logo, " Dead Iron Salvage Company." This was corroborated by Klisser’s testimony. His phrase "you lose" was explained as black humor that defendant had learned in the military. No evidence was presented to refute defendant’s testimony on these points; nor did the prosecutor spend much time in argument on the subject. Given the evidence of defendant’s cold-blooded shooting of an unarmed man who did nothing to provoke deadly force (even under defendant’s version of the events), it is not reasonably probable he would have received a more favorable result had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Defendant contends that section 12022.53 violates due process and equal protection by not rationally serving any legitimate state interest. We disagree.

Defendant argues that section 12022.53 does not rationally serve a legitimate state interest because it results in unreasonably disparate punishment of the same offenders whose only difference is their deadly weapon of choice. In making his argument, defendant fails to acknowledge that firearms pose a potentially greater risk to safety than other weapons because of their inherent ability to harm a greater number of victims more rapidly than other weapons. In so doing, he further fails to recognize that an increase in public safety is a legitimate state interest. (People v. Martinez (1999) 76 Cal.App.4th 489, 497-498 ["The ease with which a victim of one of the enumerated felonies [in § 12022.53] could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives"]; see also People v. Morgan (1973) 36 Cal.App.3d 444, 449 ["A firearm can inflict deadly wounds on a number of people within a wide area and within a short amount of time"]; People v. Aguilar (1973) 32 Cal.App.3d 478, 486 [harsher penalties for firearms are based on a rational distinction, such as the disadvantage to an unarmed victim, the lethal nature of firearms, and "the relative speed with which a potential killer armed with a firearm can execute an intent to kill, once it is formed"].)

This case provides an excellent example of why the law is rationally related to a public interest. If defendant had not had his loaded firearm immediately available, it is doubtful he could have carried out the murder of Aaron and attempted murder of Edna when his intent was formed. It is very possible defendant would never have entertained the intent to commit the murders while at the apartment but for the knowledge he had a loaded firearm readily available to carry out the plan.

Defendant essentially challenges the wisdom of the law, contending that its harshness makes it irrational. He compares it to many other sentence-enhancing provisions and concludes that its significant increase in the punishment over other enhancements for similar conduct makes the law irrational. A similar argument was rejected regarding the Three Strikes law. (See People v. Sipe (1995) 36 Cal.App.4th 468, 482-483.) Defendant argues that because the statute deprives the trial court of the ability to adjust unduly severe sentences in accordance with section 1385, it is even more harsh. We acknowledge the Legislature may eliminate a trial court’s discretion under section 1385. (People v. Thomas (1982) 4 Cal.4th 206, 213-214; People v. Valencia (1989) 207 Cal.App.3d 1042, 1045.) The United States Supreme Court grants legislatures significant latitude in fashioning remedies for perceived societal ills.

Here, the Legislature expressly indicated its intent when, in enacting section 12022.53, it declared:

Thus, the Legislature has enacted this statute to increase public safety.

Defendant has demonstrated a lack of respect for the safety of his fellow citizens and a propensity to commit violent crime. His long-term incarceration, due in large part to his causing injury and death with a handgun, will increase public safety. It will protect the public from defendant and others like him, who use handguns to kill and seriously injure innocent people.

The statute imposes harsher sentences upon individuals who use firearms in the commission of particular violent crimes. Thus, anyone who comes within the parameters of section 12022.53 has demonstrated the same propensity for committing violent crimes and endangering others. The statute further offers different gradations of punishment. Personally using a firearm during the commission of an enumerated crime is punishable by an additional 10 years. (§ 12022.53, subd. (b).) Firing a weapon, indisputably more dangerous to public safety, is punishable with an additional 20 years. (§ 12022.53, subd. (c).) Actually causing great bodily injury to another, again de facto more dangerous than either possessing it or firing it and injuring no one, earns the felon life in prison with a minimum of 25 years. (§ 12022.53, subd. (d).)

The statute is rationally related to the intent offered by the Legislature and supports legitimate state interests of citizen safety and deterrence of violent crime. (See, e.g. People v. Cooper (1996) 43 Cal.App.4th 815, 828-830; People v. Kilborn (1996) 41 Cal.App.4th 1325, 1330-1332; People v. Sipe, supra, 36 Cal.App.4th at pp. 483-484.)

Defendant also contends that one of the two firearm-use enhancements imposed pursuant to section 12022.53, subdivision (d), must be set aside because of limitations found in section 12022.53, subdivision (f). The court imposed an enhancement pursuant to section 12022.53 for each victim that defendant shot and injured -- Aaron and Edna.

Section 12022.53, subdivision (d) directs the sentencing court to calculate a defendant’s sentence prior to its application. Once the sentence has been calculated, if the conditions described in section 12022.53, subdivision (d) are met, the court is to impose an additional sentence of 25 years to life. The statute goes on to provide generally that this enhancement must be imposed if it is pled and proven instead of several enumerated enhancements providing for a shorter enhancing term. Finally, the statute requires that when an enhancement specified in section 12022.53 is admitted or found true, "the court shall impose punishment pursuant to this section rather than imposing punishment authorized under any other provision of law,..." (§ 12022.53, subd. (j).)

Specifically, section 12022.53, subdivision (f) provides:

Defendant argues the language of the first two sentences of subdivision (f) is ambiguous and should be construed in his favor. He argues the "per person" language of the second sentence can only be read to mean that if multiple enhancements are found true under section 12022.53, only a single enhancement can be imposed. However, this construction ignores the plain language of the first sentence, which makes clear that the subdivision (f) limitation applies "for each crime," not each criminal.

Under the plain meaning rule of statutory construction, defendant’s contention must be rejected. The first sentence of subdivision (f) presents no ambiguity as to the Legislature’s intent to apply a limitation to one enhancement per crime.

In any event, assuming the subdivision is rendered ambiguous by the second sentence, as argued by defendant, the Legislature has since cleared up any such ambiguity. The Legislature amended subdivisions (d) and (f) of section 12022.53 in 1998. In doing so, the Legislature declared, in pertinent part:

While such a legislative statement is not binding, it may supply evidence of earlier legislative intent. (See Eu v. Chacon (1976) 16 Cal.3d 465, 570; California Emp. etc. Com. v. Payne (1947) 31 Cal.2d 210, 213-214.) Further, under defendant’s proposed construction, a criminal using a firearm could go on a shooting spree, injure or kill numerous victims, and receive only one enhancement for the gun use, as though he had injured just one victim. In light of the legislative intent to promote public safety and discourage the use of guns, such a construction would frustrate rather than promote the Legislature’s declared intent in enacting and amending the statute. Therefore, it is rejected.

The judgment is affirmed.

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WISEMAN, J.

WE CONCUR:

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ARDAIZ, P.J.

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THAXTER, J.