Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-081147-1.
Pollak, J.
Mistakenly believing that he was about to be fired upon, defendant Aaron Kalip Myers and his friend, Brian Young, shot at another vehicle on the freeway, killing one person and seriously injuring another—both of whom, it turned out, were friends. Although likely that Young’s more powerful AK-47 weapon inflicted most if not all of the harm, defendant was convicted of voluntary manslaughter, four counts of attempted voluntary manslaughter, and one count of shooting at an occupied vehicle. The jury also found true the allegation that he personally discharged a firearm proximately causing death, and he was sentenced to 11 years and eight months for the substantive charges plus a consecutive term of 25 years to life for the enhancement. He argues that there was insufficient evidence to support the manslaughter conviction, that the jury was improperly instructed, and that one of his sentences must be stayed under Penal Code section 654. We agree with the final argument, but reject his other contentions. Therefore, we shall remand for correction of the sentence but otherwise affirm.
Further statutory references are to the Penal Code.
Background
Christopher Robinson testified that on the evening of April 3, 2008, he was a passenger in a car with Rhonda White, Donnaray Allison, Sean Wydermyer and Ashley Davis. White and Allison were in the front seat and the other three were in the back seat. Robinson sat behind White, who was driving. Robinson testified that White was driving the speed limit and was not driving in an erratic or strange manner, although all of the occupants of the car were drinking and smoking marijuana. No one in White’s car had a gun.
As they were driving in the middle lane of Interstate 80 between Albany and Pinole, White waved at another car, commenting, “There goes Aaron and them.” White did not tailgate, nor did she swerve while driving. Allison said, “Don’t speed up on the car, ” but waved both hands, making “peace signs” with his fingers. To Robinson’s knowledge, no one in White’s car had made any sort of threatening gestures. All of the windows were up so that no one had even put a hand outside of the car. Suddenly someone in the other car began firing at White’s car. Robinson recognized the other car as belonging to defendant and his girlfriend, Tiana Sheppard.
When the shooting began, Robinson put his head between his knees and crouched toward the floor of the car. When he looked up, Allison was “slumped in his seat” and White “was just holding the steering wheel breathing hard.” Wydermyer reached into the front of the car and brought the car to a stop. By the time Robinson and the others got out of the car, White had died. Allison was unable to get out of the car because of his injuries.
Robinson told the police that defendant, Brian Young (whose nickname was Bow Wow), and Sheppard were in the car that fired on him and his friends.
Allison testified that he had known defendant and Sheppard for many years. White had purchased the car she was driving “a month or more” prior to the day of the shooting and defendant and Sheppard had seen the car prior to that time. Allison testified that White was not driving erratically and did not appear drunk. He recognized Sheppard’s car when it neared White’s car and saw Sheppard and defendant in the car. Allison recalled commenting, “There go Hersh [defendant’s nickname] and them.” He raised one of his hands and made a “peace sign” gesture towards Sheppard’s car. “Within seconds” defendant started shooting and then Young also began to shoot. Allison was shot seven times and remained in the hospital for two months, undergoing four or five surgeries.
Tiana Sheppard testified that she and defendant had been dating for eight years and have a child together. She and White had been friends since 2002, and she had known Allison even longer. Around 9:00 p.m. on the night of the shooting she was driving her car with defendant in the passenger seat and Young in the back seat. Defendant had a backpack and Young had a duffle bag, but Sheppard did not see that either had a gun. She stated that as they were driving on Interstate 80, a “car pulled up along the side of me, and it startled me because it came up so quickly. When I noticed the car, I looked out the window to see who it was, and I couldn’t see any faces.... I’m scared because we’re in Richmond and I don’t know who this is.” Defendant looked toward the other car and asked Sheppard who was in it. “And before I can say, ‘I don’t know, ’ [defendant] pulled me out of the way.... [¶]... [¶] After that I heard gunfire. I didn’t know which direction the shooting was coming from at all.” She could feel warmth from a gun being fired near her neck. The gunfire lasted a few seconds, then she felt the car hit something. She sat up and realized she had a flat tire and pulled to the side of the road. Defendant was asking, “Who was that?” but she did not see a gun. The three got out of the car and walked to a local high school. Sheppard remained at the school and called a friend to pick her up, while defendant and Young continued on foot. Sheppard and her friend later picked up defendant and Young and drove to Sheppard’s apartment. En route, they passed the scene of the shooting, which was cordoned off. The friend wondered aloud what had happened and said that she heard White had been injured. Sheppard turned herself in to the police on April 11.
Sheppard testified that defendant had been the victim of a shooting in February 2008. When he was released from the hospital he moved in with her because he did not feel safe returning to the neighborhood where he lived previously. They discussed the fact that both of them had been threatened. On the night of the shooting, they had discussed how dangerous it was to return to defendant’s former neighborhood. However, defendant’s father, who had surgery in January 2008, still lived in a housing development in the area called “Parchester Village” and wanted to see his son frequently. In order to visit, Sheppard and defendant would go after dark and climb over the wall that surrounds the community, then cut through various backyards to reach defendant’s father’s house.
Damario Brown, a friend of defendant, testified that in the spring of 2008, Brown and his brother were robbed. Brown told defendant about the incident and defendant confronted one of the robbers, who then shot defendant. Brown testified that after defendant was shot “he was like kind of scared.... He... seemed like he was kind of nervous like he really didn’t want to... be out there... because there was a lot of threats and stuff being made.” Defendant stayed with Brown in Sacramento for approximately one week and while there defendant received threatening phone calls. He placed one of the calls on speaker phone and Brown testified that the caller said he was going to kill defendant and Sheppard.
Defendant testified that he had lived with his father his whole life. They lived in Parchester Village, which is marked by gun violence. Defendant had seen approximately 15 or 20 people killed by guns. He described Parchester Village and neighboring communities as, “basically neighborhoods shooting at each other. It’s a war out there.” He testified that the police were ineffective at preventing violence in the community, so “[y]ou have to arm yourself regardless who you are. You can be somebody going to church or you can be somebody playing on the basketball team.” When he was 13 a friend was killed; defendant got his first gun in response to the incident.
In February 2008, defendant confronted the man who robbed Brown. The man left but returned 15 minutes later with a gun, shooting approximately 12 times and hitting defendant in his side and tailbone. After the shooting, defendant learned that others in the community viewed him as being in the wrong, and that many people wanted to kill him for his role in the altercation. Defendant felt that there was “no chance I could stay there freely and not get shot because you got people that ain’t in it and then you got half the neighborhood on his side.” He felt he had no choice but to move for his own safety and that of his father, his girlfriend and his children. Defendant kept guns in the house for protection, but he was careful that neither Sheppard nor the children saw them. He carried a gun whenever he was driving on the freeway because he felt vulnerable “[a]ll the time. Because you’re sitting in a close[d] car. Nobody to duck behind or run over to.”
Defendant grew up with White and they remained close into adulthood. Although defendant felt that most of the neighborhood turned against him after he was shot in 2008, White and Allison did not. Defendant’s 92-year-old father had a pacemaker implanted and continued to have heart problems. Defendant cared for his father, but after he was shot and threatened, he had to sneak back to his father’s house to see him.
On April 3, defendant’s father called him several times, and defendant wanted to visit him. Defendant called Sheppard, who picked him up. He took his.380 caliber gun with him, but concealed it from Sheppard. As they were driving on the freeway, defendant saw a car in his peripheral vision just as Sheppard said, “Babe, who was that? Whoa. Watch out.” The other car “swooped up fast.” To defendant, this indicated that “something was fitting to happen. Shooting was fitting to happen. Like I had basically got caught slipping. They identified the car and got hit. [¶] Q.... [¶] A. Slipping means we was looking for you and we found you, got you.” When the car pulled alongside defendant’s vehicle, all defendant could see was “heads. That’s all I seen. No females. I thought I seen all males. I seen dreads or dreadlocks.... [¶] Q.... [¶] A. I seen dreads, and then the next thing I seen is the hands go up. When I seen the hands go up, I interpreted that [as] a rifle from being in the streets. [¶] Q.... [¶] A.... I grabbed Tiana Sheppard out the way before she get hit and before she was killed.” He then “fired about four or five times.” After firing, defendant lowered his head and stayed down. He heard other gunshots and believed he was being fired at. It was not until he arrived home that he learned he had killed White and injured Allison. Defendant testified that he never would have intentionally harmed White or Allison. Defendant subsequently surrendered to the police in Las Vegas.
Detective Michael Pistello of the Pinole Police Department testified that he spoke with Wydermyer, Robinson and Davis the night of the shooting. Neither Robinson nor Wydermyer wore their hair in dreadlocks on the night of the shooting; both had short, curly hair at the time. Wydermyer told Pistello that he heard loud gunshots and that he heard two different guns fire. Pistello interviewed Sheppard on April 11, and she told him that she heard gunshots but did not know where they were coming from. She also told him that after the three got out of the car and started up the hill on foot, Young turned and she saw a rifle hanging from his left shoulder, under his coat. Pistello searched Sheppard and defendant’s apartment and found a bullet proof vest and a holster.
Defendant was charged by first amended information with murder (§ 187) with allegations of intentional discharge of a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d)) and shooting from a motor vehicle (§ 190, subd. (d); four counts of attempted murder (§§ 187, 664) with allegations of discharge of a firearm causing great bodily injury (§ 12022.53, subds. (b), (c), (d)); and one count of shooting at an occupied motor vehicle (§ 246) with an allegation of intentional discharge of a firearm causing great bodily injury under section 12022.53, subdivisions (b), (c), and (d).
At trial, as indicated above, defendant acknowledged firing several shots from his.38-caliber pistol at the car in which the victims were riding, but he contended that the only bullets that caused any harm were from the more powerful AK-47 fired by Young. There was considerable testimony concerning ballistics and the bullet fragments that were found in the car and removed from the bodies of the victims. There was no evidence establishing that a bullet from defendant’s gun hit White and at most there was some evidence that one of the several bullets striking Allison may have been from his.38-caliber pistol. The jury was instructed on several theories under which defendant could be found guilty of the charged offenses on the assumption that the evidence did not establish that a bullet from his gun hit either victim. On appeal, the Attorney General contends the evidence does not preclude the possibility that at least one shot from defendant’s gun struck White, but his argument rests primarily on the contention that the instructions were such that defendant was properly convicted regardless of which bullets inflicted the injuries. Remarks of the trial judge at the time of sentencing suggest that the court also viewed the conviction in this light. We shall similarly assume for the purpose of this appeal that the evidence is insufficient to prove that either victim was struck by a bullet from defendant’s gun.
A crime lab criminalist testified that he found 13 bullet holes in the passenger door of White’s car. He found one bullet lodged in the door and three more that had entered the outside of the door but not penetrated the inside of the door and into the car. He found a fifth bullet below the passenger seat. Those five bullets were.38-caliber. He also found fragments of other bullets in the car, “everywhere from the passenger floor to I believe the driver’s floor....” The fragments were too small to determine the caliber and the criminalist could not say what they hit that caused the bullets to break into fragments. Nine of those “actually penetrated the door and continued into the passenger compartment.” He found lead from a bullet lodged on the inside of the driver’s side door, but could not determine the caliber of the bullet. He discovered “one fragment that appeared to come from a rifle caliber rather than a.380 auto.” The windows in the car were shattered, and the criminalist testified that it would be possible for a.38 bullet to shatter a window and continue through the car and shatter the opposite window, but he could not say what caliber bullet had shattered the windows in White’s car. From Sheppard’s car, he “recovered a number of 762 by.39 millimeter cartridge cases, ” which he testified are the types of cartridge “typically fired in AK-47 weapons, ” and two casings from.38 bullets. An AK-47 “is a rifle” and cannot shoot.38 caliber ammunition. He did not examine the bullets that were found in White and Allison. The pathologist who performed the autopsy on White testified that he thought that the individual fragments of bullets removed from White’s body “were less than a.38 caliber.” The parties stipulated that an investigator obtained a copper jacketed bullet that appeared to be 7.62 by.39 caliber that was removed from Allison after surgery.
The court instructed the jury that defendant could be found guilty on the theory of concurrent causation, as an aider and abettor, or on a conspiracy theory.
The jury was instructed in accordance with CALJIC No. 3.41 as follows: “There may be more than one cause of death. When the conduct of two or more persons contributes concurrently as a cause of the death, the conduct of each is a cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the death and acted with another cause to produce the death. [¶] If you find that the defendant’s conduct was a cause of death to another person, then it is no defense that the conduct of some other person contributed to the death.”
The jury was instructed in accordance with CALJIC No. 3.02 as follows: “One who aids and abets another in the commission of a crime is not only guilty of that crime, but also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted. In order to find... the defendant guilty of the crime of murder... or any lesser included offense, you must be satisfied beyond a reasonable doubt that: 1. The crime of shooting at an occupied motor vehicle, as charged in count six, or one of the attempted murders charged in counts two through five was committed; 2. that the defendant aided and abetted that crime; 3. that a co-principal in that crime committed the charged crime of murder, or a lesser included offense; and 4. that such crime was a natural and probable consequence of the commission of the crime aided and abetted.... [¶]... [¶] You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the charged crime, or lesser included offense, was a natural and probable consequence of the commission of that target crime.”
The jury was instructed in accordance with CALJIC No. 6.10.5 as follows: “A conspiracy is an agreement between two or more persons with the specific intent to commit a crime, and with the further specific intent to commit that crime, followed by an overt act committed in this state by one or more of the parties... for the purposes of accomplishing the object of the agreement.... [¶] In order to find a person to be a member of a conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one overt act. It is not necessary to such a finding that such person personally committed the overt act if he or she was one of the conspirators when the alleged overt act was committed.”
The jury found defendant guilty of the lesser included crimes of voluntary manslaughter (§ 192, subd. (a)), and four counts of attempted voluntary manslaughter, and guilty of discharging a firearm at an occupied motor vehicle. The jury made no findings with respect to the enhancement on the manslaughter and attempted manslaughter counts but found the enhancement true as to the final count of shooting at an occupied vehicle.
The court sentenced defendant to the midterm of six years for manslaughter, an additional year for each count of attempted voluntary manslaughter, one year eight months for shooting at an occupied vehicle, and 25 years to life for the enhancement under section 12022.53, subdivision (d) for personally and intentionally discharging a firearm in the commission of the violation of section 246 causing death. All the terms are consecutive. Defendant timely filed a notice of appeal.
Discussion
Sufficiency of the evidence under theory of concurrent causation
Defendant argues that there was insufficient evidence to support the jury’s finding that he committed voluntary manslaughter and that he discharged a firearm causing great bodily injury or death. While the bullet fragments recovered after the shooting suggest that the bullets that killed White were small diameter high velocity of the type fired by Young’s AK-47, the evidence was hardly conclusive. The pathologist who recovered the fragments from White’s body rendered no opinion as to the source of the bullets or the caliber of the gun from which they were fired. The criminologist who testified did not examine the fragments taken from White’s body. Thus, the court was justified in giving instructions on the premise that the source of the fatal bullets was undetermined.
In closing, the prosecutor argued: “If you want to give the defendant the benefit of the doubt so to speak and say it’s four to five, but also we know it’s five bullets, let’s stop there. He did tell the police initially it was nine. You might say, ‘Well, he did say that because he was covering for other people.’ Remember he wanted to convince the police it was just him. Okay. Give him the benefit of the doubt. He shot five times at this vehicle. And again, it doesn’t matter if it’s his bullet that causes the death or [Young’s.]” The prosecutor also argued, “In other words, was that shooting also a substantial factor? Well, yeah. He’s shooting at the same time. That’s contributing to the crime. He is shooting. Aaron Myers is shooting. Substantial factor in encouraging [Young] to shoot. The shooting by Aaron Myers is a substantial factor. It’s a concurrent cause. Both of them.” In rebuttal, the prosecutor repeated that it was unclear which bullet hit White, “But the law says there can be two different causes, and you don’t get to... just start firing a weapon, ‘Well, it wasn’t my bullet that hit her.... I’m not guilty because it wasn’t my bullet.’ That’s not the law. The law says there... may be more than one cause of the death... when the conduct of two or more persons contributes concurrently.”
Defendant testified that he fired four or five shots. On cross-examination, he testified that he did not remember if he shot a sixth or seventh time, but stated that he could not have shot more than seven times because he was certain he did not empty the gun of bullets. Defendant previously told police that he had fired nine shots and that there was evidence that his.38 pistol was capable of firing nine rounds. He testified that his gun was loaded with nine bullets on the day of the shooting.
Both the instructions and the prosecutor’s argument correctly stated California law. “[I]t has long been recognized that there may be multiple proximate causes of a homicide, even where there is only one known actual or direct cause of death.” (People v. Sanchez (2001) 26 Cal.4th 834, 846.) In Sanchez, the defendant and another man, Gonzalez, were charged with the murder of Estrada. The forensic evidence was inconclusive as to which man fired the fatal shot. The court noted that “ ‘ “There may be more than one proximate cause of the death. When the conduct of two or more persons contributes concurrently as the proximate cause of the death, the conduct of each is a proximate cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the time of the death and acted with another cause to produce the death.” ’ ” (Id. at p. 847.) The court concluded, “Although in this case it could not be determined who was the direct or actual shooter of the single fatal round, the evidence, with all reasonable inferences drawn in favor of the guilty verdicts, supports a finding that defendant’s commission of life-threatening deadly acts in connection with his attempt on Gonzalez’s life was a substantial concurrent, and hence proximate, cause of Estrada’s death.” (Id. at pp. 848-849.)
Defendant attempts to distinguish Sanchez by pointing out that the murder in that case was gang-related, there was some evidence that the murder had been planned, and the defendant in that case was found guilty of premeditated murder. These distinctions are irrelevant. The testimony was uncontradicted that defendant and Young were firing simultaneously into White’s vehicle. Defendant admitted as much in his testimony. The jury was properly instructed and clearly could find under the evidence that the two men, firing simultaneously, caused White’s death, either directly or proximately. There was substantial evidence that defendant’s actions were a concurrent cause of the homicide.
For the same reason, the record supports the jury’s finding on the enhancement. “[S]ection 12022.53(d) does not require that the defendant fire a bullet that directly inflicts the harm. The enhancement applies so long as defendant’s personal discharge of a firearm was a proximate, i.e., a substantial, factor contributing to the result.” (People v. Bland (2002) 28 Cal.4th 313, 338.)
Vicarious liability
As indicated above, the jury was also instructed that defendant could be found guilty as an aider and abettor of the person who committed the underlying offense. Defendant contends that there was insufficient evidence to support this instruction
“The test for determining whether instructions on a particular theory of guilt are appropriate is whether there is substantial evidence which would support conviction on that theory. [Citation.] To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529.)
Defendant argues that “[t]here was no evidence of a plan or gang design.... Thus, there was no time to develop an awareness of his coparticipant’s intentions and an intent to aid him in that purpose.” “A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) “Aiding and abetting may be committed ‘on the spur of the moment, ’ that is, as instantaneously as the criminal act itself.” (People v. Nguyen, supra, 21 Cal.App.4th at p. 532.) “Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.” (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.) The evidence here was such that the jury reasonably could find that by firing his gun at the approaching car, defendant promoted, encouraged and, if he fired first, instigated the firing of the AK-47 by Young. While events transpired so quickly that there apparently was no opportunity for the two to discuss the situation before firing, the evidence supports the obvious inference that both knew what the other was doing and that defendant, by his own conduct, implicitly encouraged Young to continue shooting.
In People v. Hernandez (2010) 181 Cal.App.4th 1494, the defendant was the driver of a vehicle from which shots were fired by the passenger, Ruiz. The defendant was convicted of violating section 12034, subdivision (c) which makes it a crime to “willfully and maliciously discharge[] a firearm from a motor vehicle at another person....” As here, the defendant argued that “the jury could have convicted him without ever finding he knew Ruiz actually intended to shoot at another person and shared that intent. Because appellant at most believed Ruiz was going to shoot up in the air, the argument runs, the instructions removed a disputed element from the jury’s consideration and require reversal.” (Id. at p. 1499.) In rejecting the argument, the court observed that “[a]n aider and abettor ‘must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” [Citation.] The jury must find “the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense....” [Citations.]’ [Citations.] In order for aiding and abetting liability to attach, the intent to render aid must be formed prior to or during commission of the offense.” (Id. at pp. 1501-1502, second italics added.) The court held that the jury was properly instructed on aider and abettor liability even though the defendant asserted he did not believe Ruiz was going to shoot and in fact told him not to do so.
Defendant also argues that because Young did not testify, there was no evidence of his mental state and therefore that there was no evidence to support a finding that Young had the requisite intent to violate section 246. Thus, defendant assertedly could not have been guilty of aiding and abetting the violation of section 246 because there was insufficient evidence to prove that Young committed that crime. Section 246 provides that “Any person who shall maliciously and willfully discharge a firearm at an... occupied motor vehicle... is guilty of a felony....” “Section 246 is a general intent crime. [Citation.] As such, the term ‘maliciously’ in section 246 is defined by Penal Code section 7, item 4, as ‘a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.’ ” (People v. Watie (2002) 100 Cal.App.4th 866, 879.)
“Section 246 does not require a specific intent ‘ “to do a further act or achieve a future consequence” ’ beyond the proscribed act of shooting ‘at’ an occupied building or other proscribed target.” (People v. Overman (2005) 126 Cal.App.4th 1344, 1357.) “ ‘As for all general intent crimes, the question is whether the defendant intended to do the proscribed act.’ [Citation.] ‘In other words, it is sufficient for a conviction if the defendant intentionally did that which the law declares to be a crime.’ [Citation.] In the words of the statute, section 246 is violated when a defendant intentionally discharges a firearm ‘at... inhabited dwelling house, occupied building....’ ” (Id. at p. 1356.) The Overman court held that the statute was violated “when the defendant shoots in such close proximity to the target that he shows a conscious indifference to the probable consequence that one or more bullets will strike the target or persons in or around it. The defendant’s conscious indifference to the probability that a shooting will achieve a particular result is inferred from the nature and circumstances of his act.” (Id. at pp. 1356-1357, fn. omitted.) The court concluded that “the statute only requires a shooting under facts or circumstances that indicate a conscious disregard for the probability that one of these results will occur.” (Id. at p. 1357.)
The evidence here was plainly sufficient to show that Young intended to shoot at the occupants of the approaching car, violating section 246, and therefore sufficient to establish that defendant aided and abetted the commission of that offense. (See People v. Hernandez, supra, 181 Cal.App.4th at pp. 1500-1502.)
The same evidence that supports the aider and abettor instructions supports the instruction on conspiracy. “The elements of conspiracy may be proven with circumstantial evidence, ‘particularly when those circumstances are the defendant’s carrying out the agreed-upon crime.’ [Citations.] To prove an agreement, it is not necessary to establish the parties met and expressly agreed; rather, ‘a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design.’ ” (People v. Vu (2006) 143 Cal.App.4th 1009, 1024-1025.)
Thus, we conclude that the evidence was sufficient to convict defendant of the charged offenses on any of the theories incorporated in the court’s instructions. However, even if there was an error in giving the instructions on vicarious liability, we see no prejudice. “[W]here there is sufficient evidence to support one of the factual theories of guilt asserted by the prosecution, appellate courts will presume the jury adopted that theory and affirm the judgment. [Citation.]... [H]owever, ... where there is insufficient evidence to support one of the prosecution’s theories, it is error for the trial court to instruct on it, and the error requires reversal if it is reasonably probable the jury relied solely on these factually unsupported instructions to convict the defendant.” (People v. Campbell (1994) 25 Cal.App.4th 402, 408.) Here, there was ample evidence to support the verdict on a theory of concurrent causation. The fact that the jury found true the allegation under section 12022.53, subdivision (d) that defendant personally and intentionally discharged a firearm proximately causing injury and death is a strong indication that the jury did not rely on a theory of vicarious liability in convicting defendant.
Flannel instruction
Defendant contends the trial court erred by failing to instruct the jury that an honest but unreasonable belief in the need to defend himself—the so-called Flannel defense (People v. Flannel (1979) 25 Cal.3d 668[limited on unrelated grounds by statute as described in In re Christian S. (1994) 7 Cal.4th 768, 777-778].)—was a defense to the charge of violating section 246, discharging a firearm at an occupied vehicle. Defendant relies on People v. McKelvy (1987) 194 Cal.App.3d 694, in which the court held that, “Although the ‘malice’ required for the offense of mayhem differs from the ‘malice aforethought’ with which Flannel was concerned, it is equally true in both cases that the requisite state of mind is inconsistent with a genuine belief in the need for self-defense. One who truly believes there is a need for self-defense cannot be said to act with intent to ‘vex, injure or annoy’ and may be found guilty of no more than an assault or battery. Where there is evidence to support such a lesser included offense, the effect of instructing the jury that an honest but unreasonable belief negates malice has a similar effect in the context of mayhem as in that of murder, reducing the severity of the offense without completely absolving the defendant of criminal responsibility.” (Id. at pp. 702-703, fn. omitted.)
However, the “unreasonable self-defense” doctrine that originated with People v. Flannel is not a true defense, nor has any case since McKelvy applied the Flannel doctrine outside of the context of homicide. “[A]s our Supreme Court has made clear, ‘... “unreasonable self-defense” is... not a true defense; rather it is a shorthand description of one form of voluntary manslaughter. And voluntary manslaughter, whether it arises from unreasonable self-defense or from a killing during a sudden quarrel or heat of passion, is not a defense but a crime; more precisely, it is a lesser offense included in the crime of murder. Accordingly, when a defendant is charged with murder the trial court’s duty to instruct sua sponte, or on its own initiative, on unreasonable self-defense is the same as its duty to instruct on any other lesser included offense: this duty arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.’ ” (People v. Watie (2002) 100 Cal.App.4th 866, 882.)
The Watie court held that “no authority suggests that the nondefense of imperfect, or unreasonable, self-defense could apply in a prosecution for violation of section 246. Such a legal theory would be at odds with [the Supreme Court’s] characterization of unreasonable self-defense as a species of voluntary manslaughter. Because there was no authority supporting application of unreasonable self-defense to a prosecution for violation of section 246, that theory of defense could not be considered ‘a general principle of law’ that was ‘openly connected with the facts before the court, ’ and the trial court had no duty to instruct on that theory sua sponte.” (People v. Watie, supra, 100 Cal.App.4th at p. 882; see also People v. Sekona (1994) 27 Cal.App.4th 443, 451-453 [declining to hold that McKelvy created a sua sponte duty to give Flannel instruction for crimes other than murder.]
The jury was properly instructed that malice for the purpose of violating section 246 means “a wish to vex, annoy or injure another person, or an intent to do a wrongful act. This is different from, and should not be confused with, ‘malice aforethought.’ ” The jury was also instructed that grossly negligent discharge of a firearm (§ 246.3, subd. (a)) is a lesser included offense of section 246, and that violation of that section requires only willful discharge of a firearm in a grossly negligent manner. Thus, although the court gave no pinpoint instruction stating explicitly that an unreasonable belief that one was under attack would negate the malice required to find defendant guilty of violating section 246, the instructions that were given permitted defendant to make that argument. Under the instructions that were given, defendant could have argued that his belief that he was being attacked, even if unreasonable, nonetheless negated any wish on his part to injure another person or do a wrongful act. In discussing the jury instructions with the court, defense counsel did mention his concern that the aiding and abetting instructions, CALJIC. No. 3.01 might be understood to preclude consideration of the Flannel issue in connection with the murder charge, but he made no request for any such pinpoint instruction in connection with the section 246 offense. Without deciding whether such an instruction would have been required if requested, the court clearly was under no sua sponte duty to offer such a pinpoint instruction. (People v. Watie, supra, 100 Cal.App.4th at p. 882; People v. Estrada (1995) 11 Cal.4th 568, 574 [“As to pertinent matters falling outside the definition of a ‘general principle of law governing the case, ’ it is ‘defendant’s obligation to request any clarifying or amplifying instruction.’ ”].)
CALJIC No. 3.01 instructs: “A person aids and abets the commission or attempted commission of a crime when he or she: (1) With knowledge of the unlawful purpose of the perpetrator, and (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) By act or advice aids, promotes, encourages or instigates the commission of the crime.... Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.”
In his related petition for a writ of habeas corpus, defendant argues that he received ineffective assistance of counsel because his attorney did not request a Flannel-type instruction on the charge of shooting at an occupied vehicle. In his declaration attached to defendant’s petition, trial counsel states: “I argued for the application of a Flannel-type doctrine—that a belief in the need for self-defense would defeat the element of malice—generally to the charges pending against petitioner. However, I did not request a specific (e.g., pinpoint instruction) on the issue of whether petitioner’s belief that he needed to defend himself negated the malice necessary for a violation of section 246 because after substantial research on the subject my reading of the case law was that such a request would be unsuccessful and would alert the prosecution to the issue perhaps resulting in a negative pinpoint instruction.” In light of the broad language of Watie and the absence of any other decision adopting the view expressed by only a single judge in McKelvy, we cannot say that trial counsel’s decision not to request the instruction was an unreasonable strategic choice. Moreover, counsel presumably was aware that even if the jury found defendant guilty of the lesser offense of grossly negligent discharge of a firearm, the enhancement for intentionally discharging a firearm causing great bodily injury, carrying a sentence of 25 years to life, would have applied. The record suggests that counsel made the very understandable strategic decision to argue exclusively that defendant should be found not guilty because he acted in self defense (which defense was included in the instructions and argued by counsel), rather than weakening the self-defense argument by suggesting that defendant’s belief that he was under attack could be found to be unreasonable. Only by obtaining an acquittal on all charges would defendant have avoided the sentence of 25 years to life on the enhancement.
Defendant’s request for judicial notice made as part of the petition for writ of habeas corpus is granted.
There is, in short, no basis to find a deficiency in the representation that trial counsel provided defendant.
Sentencing
Defendant argues that his sentence for shooting at an occupied vehicle should be stayed under section 654. That section provides that “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“It is well settled that section 654 protects against multiple punishment, not multiple conviction. [Citation.] The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the ‘same act or omission.’ [Citation.] However, because the statute is intended to ensure that defendant is punished ‘commensurate with his culpability’ [citation], its protection has been extended to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ [Citation.] [¶] It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
A defendant may be punished for the same act where there are multiple victims, but he may only be punished one time for each of the victims. “The multiple victim exception, simply stated, permits one unstayed sentence per victim of all the violent crimes the defendant commits incidental to a single criminal intent. Where one person is the victim of both a shooting at an occupied motor vehicle and a simultaneous assault, the trial court can impose an unstayed sentence for one or the other, but not for both.” (People v. Garcia (1995) 32 Cal.App.4th 1756, 1784.)
Defendant was sentenced to six years for the voluntary manslaughter of White, consecutive terms of one year for each of the four attempted voluntary manslaughter counts, and one year eight months for the count of shooting at an occupied vehicle. The Attorney General concedes that defendant may not be sentenced for all of the counts since he may only be sentenced for one count related to each victim. However, although defendant argues that the sentence for shooting at an occupied vehicle, one year and eight months, must be stayed, the Attorney General is correct that one of the one-year sentences for attempted voluntary manslaughter, the shorter of the terms, must be stayed under the plain language of section 654.
We are not unmindful of a certain irony that arises from the jury’s verdicts. In finding defendant guilty of manslaughter and attempted manslaughter, rather than murder and attempted murder, the jury necessarily concluded that defendant had no intention to kill his friends in the other car. For those offenses, and for the violation of section 246, he faces a sentence of 10 years and eight months. Yet, because of the enhancement for the use of the firearm, inherent in the offenses, he faces a sentence of 25 years to life in addition to the sentence on the underlying offenses. The jury found the circumstances surrounding defendant’s offenses were such as to reduce his principal offense from murder to voluntary manslaughter, but those circumstances cannot be taken into account to reduce or avoid the enhancement, resulting in a sentence more than twice as long as the sentence imposed for all of the substantive offenses combined. It is beyond the power of the court to ameliorate this result.
Disposition
The judgment shall be modified to stay the sentence of one year for one count of attempted voluntary manslaughter; in all other respects the judgment is affirmed. The petition for a writ of habeas corpus is denied.
We concur: McGuiness, P.J., Siggins, J.