Opinion
B224654
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY RUSSELL LAW, Defendant and Appellant.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MA044324)
APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa M. Chung, Judge. Affirmed.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Timothy Russell Law appeals from his conviction of second degree murder with firearm use enhancements. He contends: (1) there was insufficient evidence of implied malice and (2) the implied malice jury instruction was improper. We affirm.
FACTUAL AND PROCEDURAL
A. Introduction
Defendant was charged by information with the murder of Ray Toothman; enhancements were alleged for personal use and personal and intentional discharge of a firearm (Pen. Code, § 12022.53, subds. (b), (c)); and intentional discharge of a firearm causing great bodily injury or death (Pen. Code, § 12022.53, subd. (d)). A jury convicted defendant of murder and found true the personal and intentional discharge of a firearm enhancements, but found not true the enhancement for intentional discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)). He was sentenced to a total of 35 years to life comprised of 15 years to life for the murder, plus a consecutive 20 years for the section 12022.53, subdivision (c) enhancement. The court stayed a consecutive 10 year sentence for the section 12022.53, subdivision (b) enhancement (§ 654). B. People's Case
All undesignated statutory references are to the Penal Code.
It was undisputed that defendant fatally shot Toothman at about 6:00 p.m. on August 4, 2007. The principal issue at trial was whether the shooting was accidental. Viewed in accordance with the usual rules on appeal (People v. Casteneda (2011) 51 Cal.4th 1292, 1322 (Casteneda)), the evidence showed that more than eight hours after the shooting, at 2:27 a.m. on August 5th, defendant called 911. In the tape recording of that call played for the jury defendant stated to the California Highway Patrol 911 operator, "I just shot my roommate." He told her that it happened at about 6:00 p.m. the night before, that it was an accident and that the victim was dead. Defendant remained on the line while the CHP operator transferred the call to the Lancaster sheriff's station. While on hold with the sheriff's station, the CHP operator asked defendant, "Do you want to talk about it?" Defendant explained that he and the victim planned to go hunting but the gun "screwed up" while defendant was trying to load it and the victim was shot in the head. After the shooting, defendant said, he just shut the bedroom door and sat down. But then, "I couldn't take it no more sittin' here. I had to do something, just (breathing heavy). Had nobody else to turn to." Defendant repeated his story to the watch deputy on duty at the Lancaster sheriff's station that night, and gave his name and address.
Deputy Christian Scott testified that when he and other officers arrived at the scene, defendant was standing in the driveway wearing only jeans; no shirt and no shoes. While Scott detained defendant outside, other deputies entered the house. Deputy Aaron Jacob discovered Toothman's body on a bed; a shotgun was lying next to Toothman. While being detained outside, defendant told Scott that defendant and his roommate intended to go shooting and the weapon accidentally fired while defendant was either loading or unloading it.
Defendant was transported to the Lancaster sheriff's station where detectives interviewed him before they went to defendant's home. The interview was audio-recorded and the tape was played for the jury. Defendant told the detectives that several years before his girlfriend gave him a shotgun; it was broken and defendant had not fired it for about two years. The day of the shooting, Toothman had been drinking beer and defendant had had three or four bourbon and cokes. Toothman was lying on his bed while defendant stood in the doorway to Toothman's room and took the shotgun out of its case to show it to Toothman. The gun fired. At first, defendant did not think he hit anything because Toothman did not move. When he saw that Toothman had been hit (a slug entered Toothman's body behind his left armpit, passed through his shoulder, exited through his clavicle, then reentered in the left lower of his skull), defendant put the shotgun down on the bed next to Toothman and walked out of the room, shutting the door behind him.
While defendant remained at the sheriff's station, the detectives executed a search warrant at his home. There was blood spatter on the ceiling and pieces of shattered skull all over the room. The officers did not find any bloody clothing at the house. Police recovered the shotgun lying next to the body with an attached ammunition sleeve containing four rounds; a spent shotgun shell from the floor of the room in which Toothman's body was discovered and two live 12-gauge rounds from a table in the bedroom across the hall. Examining the body at the scene, the coroner's investigator estimated time of death as between 6:00 p.m. and 7:30 p.m. He deduced that the entrance wound was a contact wound from the absence of stippling and presence of stellate tearing, muzzle impression burns, soot and burning around the first entrance wound.
After executing the search warrant, the detectives returned to the station and interviewed defendant a second time. An audio recording of the interview was played for the jury. Defendant explained that he and Toothman both worked for a construction company, and Toothman rented a room in defendant's house. They had lived together for four or five months. About 1:00 or 2:00 p.m. on the day of the shooting, defendant and Toothman went out together to buy cigarettes, and alcohol. Upon returning home, defendant went into the garage to pay bills while Toothman stayed in the house drinking beer. Later, defendant suggested to Toothman that they go shooting. Toothman went to lie down and watch television while defendant got his shotgun. Defendant explained that, as he was walking into Toothman's room to show him the shotgun, defendant was trying to get a bullet out of the chamber. The weapon accidentally fired. Defendant went back into his own room and sat on the bed. Eventually, he drank a beer and then called 911. Pressed for an explanation of why he did not call 911 sooner, defendant explained that he could not believe what had happened and was afraid of going to jail. He thought of running because he was afraid that no one would believe it was an accident. Defendant had argued with Toothman over minor work-related things in the past, but they never had a physical altercation, and defendant had no reason to kill him.
Although the officers were treating the shooting as an accident, there were inconsistencies between defendant's statements and what the officers observed at the scene. For example, Toothman's body was facing away from the television but defendant said that Toothman was watching television when the shooting occurred. And the physical evidence showing that the wound was a contact wound belied defendant's claim that he was standing five feet away from Toothman when the shotgun fired. After the interview, the detectives had "more questions than answers." Nevertheless, defendant was allowed to go home.
An autopsy and toxicology report revealed that Toothman had alcohol, methamphetamine, and T.H.C. in his system, and was alive when he was shot. The Medical Examiner, Dr. Stephen Scholtz, confirmed the coroner's investigator's opinion that the entrance wound behind Toothman's left armpit was a contact wound; it had "muzzle marks" which indicated that the shotgun was against the skin when it was discharged. This was not the first contact wound Scholtz had ever examined, but it was the first such wound caused by a "sabot slug," a slug encased in a plastic casing for accuracy. The fact that Scholtz did not notice the "cherry red appearance" that is seen in some contact gunshot wounds did not alter his opinion. Because there was an exit wound, Scholtz did not find it surprising that the wading and sabot were not found in the wound path and it did not change his opinion that it was a contact wound. Toothman's blood soaked clothes were not tested for gunshot residue.
A firearms expert testified that the shotgun had an occasional malfunction when it was being loaded, but not when it was being unloaded. This occasional malfunction would not cause the gun to fire on its own or to misfire. C. Defense Case
Defendant testified that he first met Toothman about a year and a half or two years prior to the shooting when they were both working for defendant's brother. On the day of the shooting, defendant had been home sick for about a week. When defendant got out of bed at about 1:00 p.m., Toothman was drinking beer and tequila and cleaning the house. Defendant and Toothman went together to the liquor store where they purchased alcohol. Back at the house, Toothman and defendant went to their respective rooms where defendant drank bourbon and Dr. Pepper. By 6:00 p.m., defendant estimated he had had about four drinks. He admitted that if he had been tested he "would have [blown] numbers," but maintained he was not drunk when, sometime between 6:00 and 7:30 p.m., he and Toothman decided to go shooting together using a pistol and defendant's shotgun. Defendant, who had handled guns all his life, had not fired the shotgun for three or four years. Defendant went into his bedroom to retrieve the loaded shotgun from its locked hard case in the closet. Defendant kept the gun loaded for protection but because it is illegal to transport a loaded shotgun (they had to drive a few blocks to the place they intended to go shooting) defendant started to unload it.
This was the first time defendant had ever tried unloading the shotgun; in the past, he simply shot out all the rounds. Defendant was in his own bedroom when he pointed the muzzle towards the ground, pulled the hammer back and tried to eject all the shells. With some difficulty he was able to eject two shells by first bringing them up into the chamber, but he could not get the third shell out. As he was working on the shotgun, defendant was saying to Toothman in the next room, "See. This is what it is doing." Because Toothman did not respond, defendant thought he might be asleep. Still struggling to remove the third bullet, defendant walked across the hall from his bedroom to Toothman's bedroom room with the shotgun resting on his shoulder, the muzzle pointed in the air. As he entered Toothman's bedroom, defendant brought the shotgun level while he continued trying to manipulate the shell out. The next thing defendant knew, the bolt clicked shut and the shotgun fired. Defendant believed he must have accidentally knocked off the safety and pushed the wrong part of the shotgun, causing the bolt to close; he jerked at the sound of the bolt closing and accidentally pulled the trigger. Thinking he had not hit anything, defendant walked over to Toothman, tapped him on the knee and said his name a few times. But then defendant walked around the bed and saw Toothman's head and the blood.
After that, defendant remembered only reading an old letter from his ex-girlfriend and then calling 911. When the police arrived, defendant was not wearing a shirt. Defendant told the detectives that he had been wearing a shirt at the time of the shooting. At trial, he testified both that he could not recall whether or not he had been wearing a shirt and also that he removed the shirt before the police arrived. There was no blood or brains on the shirt and he did not wash up in between the shooting and the arrival of the police. Defendant did not put the gun against Toothman's arm and intentionally pull the trigger, he did not poke Toothman with the gun.
A defense firearms expert reviewed the reports of the prosecution experts, including the autopsy. He also examined and tested the shotgun using the same brand of ammunition that killed Toothman. The defense expert concluded that the shooter was standing several feet from the victim when the shotgun discharged.
DISCUSSION
A. Instructional Error
Defendant contends the giving of CALCRIM No. 520 denied him due process and a fair trial. He argues: (1) contradictory portions of the instruction lightened the prosecution's burden to prove appellant acted deliberately with conscious disregard for human life; (2) the instruction failed to identify the predicate act for application of the natural and probable consequences doctrine; and (3) the trial court failed to respond to the jury's request for a definition of "deliberately" as used in the instruction. We find no error.
As given CALCRIM No. 520 reads:
"The defendant is charged with murder. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant committed an act that caused the death of another person; [¶] and [¶] Two, when the defendant acted, he had a state of mind called malice aforethought; [¶] and [¶] Three, he killed without lawful excuse. [¶] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] The defendant acted with express malice if he unlawfully intended to kill. [¶] The defendant acted with implied malice if: [¶] One, he intentionally committed an act; [¶] Two, the natural and probable consequences of the act were dangerous to human life; [¶] Three, at the time he acted, he knew his act was dangerous to human life; [¶] and [¶] Four, he deliberately acted with conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time."
The People contend that, as a result of his failure to object or seek modification of CALCRIM No. 520 in the trial court, defendant has forfeited the issue on appeal. (See People v. Valdez (2004) 32 Cal.4th 73, 137.) Defendant maintains that his constitutional claims are cognizable on appeal notwithstanding his failure to object. Apart from whether defendant forfeited the issue, we find no merit in his contentions.
1. "Deliberately" and "Deliberation"
Defendant complains that CALCRIM No. 520 is internally inconsistent because it states both that, to prove implied malice, the People must prove that the defendant "deliberately acted with conscious disregard for human life," and also that malice aforethought "does not require deliberation." (Italics added.) The flaw in defendant's argument is that, in the context of murder, "deliberate" action and "deliberation" are not the same thing.
The distinction between first and second degree murder is the absence of premeditation and deliberation in second degree murder. (People v. Washington (1976) 58 Cal.App.3d 620, 624 (Washington).) But malice aforethought is an element of both first and second degree murder. Malice may be express or implied. (§ 188.) It is express "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (Ibid., italics added.) Malice is implied "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (Ibid.) The circumstances are sufficient to show an abandoned and malignant heart when " ' " 'the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.' " ' " (People v. Canizalez (2011) 197 Cal.App.4th 832, 842 (Canizalez), italics added.) Thus, although second degree murder requires a deliberate act to show implied malice, it does not require deliberation. As the court in Washington, supra, explained: "Malice aforethought as required in second degree murder is not synonymous with the term deliberate as used in defining first degree murder. [Citation.] To hold otherwise would obliterate the distinction between the two degrees of murder. . . . '. . . [M]alice aforethought is . . . an essential element of murder of the second as well as of the first degree and . . . such malice aforethought is not synonymous with the elements of deliberation and premeditation which must accompany a homicide to characterize it as murder of the first degree. Obviously, if malice aforethought necessarily included or presupposed a deliberate and premeditated intent then all murder would be of the first degree because any homicide, to constitute murder at all, must be an unlawful killing with malice aforethought; and the Legislature would be guilty of an utterly meaningless classification of murder into two degrees, with no field in which the second could operate."
Here, CALCRIM No. 520 correctly instructed the jury that an element of implied malice is "deliberate" action with conscious disregard for human life, but that malice aforethought does not require "deliberation."
2. The Definition of "Deliberately"
Defendant contends the trial court erred because it failed to respond to a jury question seeking the definition of "deliberately" in CALCRIM No. 520. But, as we shall explain, the trial court did not fail to respond to the question, the jury - which continued to deliberate while waiting for an answer - simply reached a verdict before the court and counsel had arrived at an answer.
During deliberations, the jury submitted three separate questions seeking definitions of words used in CALCRIM No. 520: (1) "lawful excuse;" (2) "mental state;" and (3) "deliberately." As to the first two terms, the trial court provided responses, and defendant makes no argument concerning the adequacy of those answers.
The jury submitted its third question at 9:38 a.m. on April 7th. The inquiry asked for the definition of "deliberately" as used in CALCRIM No. 520. At 11:12 a.m., after some testimony was read back, the jury inquired as to the status of its question. The bailiff informed the jurors that the court and counsel were discussing a response to their question. At 11:50 a.m., before a response was crafted, the jury indicated it had reached a verdict.
This time line demonstrates that this is not a case where the trial court figuratively threw up its hands and told the jury that it could not help. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) On the contrary, the jurors were told that the trial court and counsel were working on formulating an answer. In the interim, the jurors apparently overcame any uncertainty on their own. Under these circumstances, there was no failure to reply to the jury's question and thus, no error.
3. A "Predicate Act"
Citing People v. Prettyman (1996) 14 Cal.4th 248, 266-270 (Prettyman), defendant contends the trial court had a sua sponte duty to identify a predicate crime underlying the prosecution's theory of the application of the natural and probable consequences doctrine. Defendant is incorrect.
Rejecting an identical contention, the court in People v. Martinez (2007) 154 Cal.App.4th 314, 333, explained: "Defendant's argument based on the 'natural consequences' language in CALCRIM No. 520 confuses two distinct concepts. . . . [T]he sua sponte duty to instruct a jury to which defendant refers arises only when the prosecution relies on the 'natural and probable consequences' doctrine in the context of aiding and abetting liability. (Prettyman, supra, 14 Cal.4th at pp. 268-270.) But this is not an aiding and abetting case. This is a murder case, not involving an accomplice, in which the rationale underlying the sua sponte instruction rule in Prettyman is not present. [¶] . . . Unlike a case based upon the 'natural and probable consequences' theory of accomplice liability, set forth in Prettyman, supra, 14 Cal.4th at pages 260-263, the facts of this case did not require the jury to analyze two distinct transactions—a target crime, such as robbery, and a nontarget crime, such as murder—and determine whether a murder by a confederate was the natural and probable consequence of a robbery the defendant accomplice had agreed to aid and abet. Here, defendant was charged with one count of second degree murder based upon a single transaction . . . . There was no unidentified target offense as there would be in an aiding and abetting case in which the prosecution relies upon the natural and probable consequences of the act that the defendant allegedly aided and abetted. Thus, no duty to issue a sua sponte instruction identifying and describing a target offense arose in this case." (Id. at pp. 333-334, fn. omitted.)
We agree with Martinez. The trial court had no duty to instruct on a predicate or target offense in this case: defendant was charged with one count of second degree murder based on a single transaction, there was not an unidentified target offense as there would have been in an aiding and abetting case. The issue in this context was what defendant was doing at the time of the shooting, not what a "target offense" he intended to commit when some other crime occurred.
The jury was properly instructed on implied malice and, as we discuss next, substantial evidence supports the jury's guilty verdict. B. Sufficiency of the Evidence
Defendant contends there was insufficient evidence of (1) implied malice and (2) the intentional discharge of a firearm enhancement. The People counter that there was substantial evidence of both express and implied malice, as well as substantial evidence to support the enhancement. Defendant does not address the People's argument vis a vis express malice. We conclude that substantial evidence supports the judgment.
Although the prosecution argued an implied malice second degree murder theory to the jury, the jury was instructed on express malice in CALCRIM No. 520. The record does not show on which theory the jury predicated its guilty verdict. However, as we shall explain, both theories are supported by substantial evidence.
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The standard of review of a challenge to the sufficiency of the evidence to support a criminal conviction is well established: " ' "[W]e review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence— that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citations.]" [Citation.]' 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]' [Citation.]" (Casteneda, supra, 51 Cal.4th at p. 1322, italics in original.)
1. Express Malice
Malice is express "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188.) "[B]asically, every intentional killing is with malice aforethought unless the circumstances surrounding the killing are sufficient to constitute justification, excuse or mitigation; any intent to kill under other circumstances is considered malicious." (In Re Thomas C. (1986) 183 Cal.App.3d 786, 795 (Thomas).) In Thomas, the 16-year-old minor shot and killed his 14-year-old sister. There was evidence that the minor and his sister were very close, both were depressed, and that the sister asked the minor to shoot her (there was no evidence of a suicide pact). The trial court found the minor knew that placing a gun to his sister's head and pulling the trigger would cause her death, which constituted express malice for second degree murder. (Id. at p. 794.) The appellate court affirmed, reasoning that once a defendant intends to kill, any malice he may harbor is necessarily express malice. (Id. at p. 796.)
Here, the People argue, express malice can be inferred from the seven hour delay between the shooting and defendant's 911 call; the forensic evidence showing that the gunshot wound was a contact wound; the evidence showing that Toothman was not in the position defendant claimed when the fatal shot was fired; and the evidence the shotgun had no malfunction that would cause it to fire without the trigger being pulled.
A reasonable trier of fact which believed this evidence could conclude the defendant intended to shoot Toothman. That the jury could have found defendant had only accidentally shot his victim is beside the point on appeal.
2. Implied Malice
The element of malice in second degree murder is implied "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188.) The circumstances are sufficient to show an abandoned and malignant heart when " ' " 'the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.' " ' [Citation.]" (Canizalez, supra, 197 Cal.App.4th at p. 842.)
"The concept of implied malice has both a physical and a mental component. [Citation.] The physical component is satisfied by the performance of ' "an act, the natural consequences of which are dangerous to life." ' [Citations.] The mental component, as set forth earlier, involves an act ' "deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. . . ." ' [Citation.] Whether a defendant's underlying acts are inherently dangerous in the abstract is not dispositive in the jury's determination as to whether a defendant acted with malice." (People v. Nieto Benitez (1992) 4 Cal.4th 91, 106-107.) The defendant must actually have appreciated the risk to human life involved. (People v. Knoller (2007) 41 Cal.4th 139, 143, 152 ["[I]mplied malice requires a defendant's awareness of engaging in conduct that endangers the life of another—no more, and no less."].) "When it is established that the killing was the result of an intentional act committed with express or implied malice, no other mental state need be shown in order to establish malice aforethought. [Citation.]" (Benitez, at p. 103.) The physical component - performance of an act dangerous to human life - may be satisfied by the commission of a misdemeanor, even one not inherently dangerous to life. (Id. at p. 108.) In Benitez, for example, our Supreme Court held that the act of brandishing a firearm constituted an act sufficiently dangerous to life to support a conviction of second degree murder on an implied malice theory.
The mental component - the defendant's appreciation of the risk to human life - can be inferred from the nature of the act itself. For example, in People v. Moore (2010) 187 Cal.App.4th 937, the defendant was driving recklessly when he collided with another car; the passenger in the other car was killed. Rejecting the defendant's challenge to the sufficiency of the evidence that he was subjectively aware of the risk posed by his behavior, the court in Moore observed, "Whether [the defendant] was subjectively aware of the risk is best answered by the question: how could he not be? It takes no leap of logic for the jury to conclude that because anyone would be aware of the risk, [the defendant] was aware of the risk." (Moore, at p. 941.)
Here, the evidence that the fatal wound was a contact wound, from which it can reasonably be inferred that defendant was holding the barrel of a loaded shotgun against Toothman's body while either loading or unloading it, constitutes substantial evidence that defendant committed an act dangerous to human life. As in Moore, whether defendant was subjectively aware of the risk is best answered by the question: how could he not be? Because anyone would be aware of the risk of loading or unloading a shotgun while the barrel was touching another person, it requires no leap of logic for the jury to conclude that defendant was aware of the risk.
We are not persuaded otherwise by defendant's suggestion that the not true finding on the section 12022.53, subdivision (d) enhancement [any person who, in the commission of a specified felony "intentionally discharges a firearm and proximately causes great bodily injury . . . or death. . . ."], precludes a guilty verdict on the substantive offense of murder. Under section 954, inconsistent verdicts are allowed to stand if the verdicts are otherwise supported by substantial evidence. The rule applies equally to inconsistent enhancement findings and an enhancement finding that is inconsistent with the verdict on a substantive offense. (People v. Miranda (2011) 192 Cal.App.4th 398, 405.) Thus, even assuming the not true finding on the section 12022.53, subdivision (d) enhancement is inconsistent with a guilty verdict based on a finding of express malice (i.e. an intentional killing), such inconsistency does not require reversal of the guilty verdict.
Moreover, a guilty verdict based on a finding of implied malice is not inconsistent with a not true finding on the section 12022.53, subdivision (d) enhancement. This is because second degree murder under the natural and probable consequences doctrine does not require proof that the defendant intended to shoot the victim. It is enough to prove that the defendant intentionally performed an act the natural and probable consequences of which were dangerous to life, and that the defendant appreciated the risk involved. As we have explained, there was substantial evidence of both those elements in this case.
3. Intentional Discharge of a Firearm
Also without merit is defendant's separate contention that insufficient evidence supported the true finding on the section 12022.53, subdivision (c) enhancement. That statute provides an enhanced sentence for any person who, in the commission of a specified felony "personally and intentionally discharges a firearm." The same evidence that supports a finding of express malice supports a true finding on the section 12022.53, subdivision (c) enhancement. Any inconsistency between the guilty verdict and true finding on the subdivision (c) enhancement on the one hand, and the not true finding on the subdivision (d) enhancement, on the other hand does not require reversal of the true finding. (Miranda, supra, 192 Cal.App.4th at p. 405.)
DISPOSITION
The judgment is affirmed.
RUBIN, J. WE CONCUR:
BIGELOW, P. J.
FLIER, J.
Although not given as part of the oral instructions, the following paragraph was included in the written version of CALCRIM No. 520 given to the jury:
"An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence."