P. v. Kramer 12/10/01 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G027217

Case Date: 03/14/2002

Preview:Filed 12/10/01

NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. PETER WILLIAM KRAMER, Defendant and Appellant. G027217 (Super. Ct. No. 98SF0113) OPINION

Appeal from a judgment of the Superior Court of Orange County, Christopher W. Strople, Judge. Affirmed in part, reversed in part and remanded for resentencing. Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle Boustany and Arlene Aquintey Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Peter Kramer was convicted of discharging a firearm into a moving vehicle and assault with a firearm. The jury made a true finding he used a firearm during the assault. He appeals the judgment as follows: (1) The court failed to instruct the jury regarding lesser included offenses with CALJIC No. 17.49; (2) he was prejudiced when testimony was read back to the jury outside of his presence; and (3) the court imposed an unauthorized sentence for an enhancement related to a count stayed pursuant to Penal Code section 654, subdivision (a). The court erred by imposing the sentence for the enhancement and therefore we remand for resentencing.

FACTS

Evelyn and Juan Le Clair returned to their house from a trip between 6:30 and 7:00 p.m. Juan parked the car on the street in front of their house. He went to pick up their mail and Evelyn stayed behind to take items from the car. They both then heard defendant yell to them, "`Go back to Nicaragua and take your son.'" Concerned, the Le Clairs decided to report the incident to the police. But they wanted to call from a local convenience store instead of from their house so that defendant "couldn't see that [they] called the police." As they drove off, Evelyn saw defendant walking toward the car with a gun in his hand. Juan saw defendant pointing something at the car, but could not identify what it was. Evelyn said to Juan "`Hurry up! Hurry up! He's coming with a gun.'" Juan stopped at a stop sign and hesitated. At that moment the Le Clairs heard something like a loud pop or a firecracker, and Evelyn heard something strike the car. As the Le Clairs drove off, defendant yelled at them "`Get out! Get out!'" The Le Clairs drove to a fast food restaurant and called the police. When they inspected their car, they noticed a small hole in its rear left side; the hole had not been there when they returned from their trip. A police officer arrived and escorted the Le Clairs to their house. 2

The police arrested defendant and searched his house and the surrounding street. While officers were searching the street for evidence, Evelyn found a spent shell casing where she had earlier seen defendant pointing the gun. The police did not find a weapon or other shells in the neighborhood. In defendant's dresser, the police found seven cartridges and a reassembled bullet and shell casing that had been fired. Defendant's father told the police defendant gave him a Browning nine-millimeter semiautomatic handgun as collateral for a loan and that he returned the weapon to defendant. The court concluded the charged offense of assault with a firearm necessarily includes the lesser offense of simple assault, and counsel for both sides concurred that the jury should be instructed with CALJIC No. 17.10. During deliberations, the jury sent a note to the judge seeking clarification on the instruction for personal use of a firearm (CALJIC No. 17.19) and requested a transcript of Evelyn Le Clair's testimony about seeing defendant holding a gun. Counsel for both sides concurred in the court's proposed instruction to the jury regarding the first question. As for the request for the transcript, the court stated: "I think the court reporter can probably find that testimony pretty quickly. Do you want to stipulate to just send her in and read that portion of the testimony?" After receiving assurances that both direct and crossexamination would be read back, defense counsel agreed. These proceedings occurred in chambers outside of defendant's presence. The jury returned guilty verdicts on both counts and made a true finding that defendant personally used a firearm during the assault alleged in the second count. On the first count of discharging a firearm into an occupied vehicle (Pen. Code,

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