Opinion
B322641
01-24-2023
THE PEOPLE, Plaintiff and Respondent, v. LEONARDO MIGUEL NACOA, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Supervising Deputy Attorney General, Lewis A. Martinez, Amanda D. Cary and Blake Armstrong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. PCF276752, Antonio A. Reyes, Judge. Reversed in part and remanded with directions.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Supervising Deputy Attorney General, Lewis A. Martinez, Amanda D. Cary and Blake Armstrong, Deputy Attorneys General, for Plaintiff and Respondent.
STONE, J. [*]
During a late-night argument with his wife, Krystal Garcia, defendant and appellant Leonardo Miguel Nacoa pulled out his shotgun, placed the muzzle inside Garcia's mouth or pointed it inches from her face, and fired one shot. Inside the couple's bedroom during the shooting were their two-year-old daughter, Audri N., and infant son, Andrew N. Defendant's seven-year-old stepdaughter, Natalie H., was asleep inside her bedroom during the shooting but woke up to the sound of Andrew crying. Natalie got out of her bed and saw defendant running inside the apartment. Through the front window, she then saw defendant get into his car and drive away. She noticed a big gun near the front door of the apartment.
A jury convicted defendant of second degree murder (Pen. Code, § 187, subd. (a); count 1), and endangering the lives of Natalie, Audri, and Andrew (§ 273a, subd. (a); counts 2-4). The jury also found true the allegations that defendant personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) during the commission of the murder, and personally used a firearm (§ 12022.5, subd. (a)(1)) during the commission of the murder and every count of child endangerment. Defendant was sentenced to an overall term of 40 years to life plus six years.
Undesignated statutory references are to the Penal Code.
On appeal from the judgment of conviction, defendant contends that the trial court prejudicially erred by refusing to instruct the jury on involuntary manslaughter as a lesser included offense of murder, and failing to provide the jury with an unanimity instruction on the charge of child endangerment of Natalie. He further asserts that his conviction for child endangerment of Natalie was not supported by substantial evidence. Defendant also contends that the court improperly delegated its authority to award defendant presentence custody credit for his indeterminate sentence on count 1 for murder.
We conclude that the trial court erred by refusing to instruct the jury on involuntary manslaughter as a lesser included offense of murder, and by failing to instruct the jury that it was required to unanimously agree on the manner in which defendant endangered Natalie's life. We also conclude that while the court's failure to instruct on involuntary manslaughter was harmless, its failure to provide an unanimity instruction on the child endangerment count as to Natalie was not. Because we reject defendant's contention that his conviction on this count was unsupported by substantial evidence, the People may retry that count should they so elect. Finally, we agree with the parties that the trial court should not have delegated its statutory duty to award all presentence custody credit to defendant.
We reverse defendant's conviction and the attached enhancement finding on count 2, affirm the judgment in all other respects, and remand the matter for the superior to modify the abstract of judgment to reflect all actual days of presentence custody credit and to afford the People the opportunity to retry defendant on count 2.
In light of our conclusion, we need not consider the additional arguments defendant raises in this appeal regarding the application of Senate Bill No. 567 to the sentence imposed on count 2.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecution Evidence
A. Events Preceding the December 15, 2012 Shooting of Garcia Joann Sandoval testified that in early December 2012, she hosted a dinner which her sister, Krystal Garcia, and Garcia's husband, defendant, attended. During the dinner, defendant brought up a prior court date he and Garcia had attended for a custody dispute over one of their children, Audri. According to Sandoval, defendant stated he had brought a gun with him and kept it in his car, and that "he went with intentions to kill [Garcia] if something went wrong."
A few weeks after Sandoval's dinner, on December 15, 2012, Sandoval and Garcia's mother, Frances Sandoval, drove to Garcia's and defendant's apartment around 9:00 a.m. Present at the apartment were Garcia and her three children, Natalie, Audri, and Andrew. Garcia was upset and crying. Defendant initially was not inside the apartment but at some point came back home appearing to be "very, very mad." Defendant called Garcia into their bedroom. Unable to hear the couple outside the bedroom, Frances walked inside to check. When she got inside the room, defendant told Frances that he and Garcia were getting a divorce. Frances drove Garcia and the three children to get pizza at a local restaurant. While out for pizza, Frances sent defendant a text message asking him to resolve his issues with Garcia.
Joann and Frances Sandoval share the same last name. For clarity, we refer to Frances Sandoval by her first name.
Defendant was gone by the time Frances, Garcia, and the children returned to the apartment. Upon their arrival, Garcia left Frances with the children and told Frances that she "would be back soon." Ten minutes later, Garcia came back to the apartment crying. Frances asked Garcia about her relationship with defendant, and Garcia responded that "she didn't know what to do with [defendant]," as "she wasn't able to make him happy or please him with anything." Garcia threw herself on a chair inside the apartment, leading Frances "to understand that she just couldn't take it any more [sic]." Frances stayed with Garcia inside the apartment late into the evening but left sometime around midnight. She asked Garcia to go with her because she was afraid something was going to happen to her, but Garcia declined to leave.
Defendant's friend, Luis Vasquez, testified that he and defendant spent most of the afternoon of December 15, 2012, inside a barbershop where Vasquez worked. Defendant's friend Robert Lopez, who owned the barbershop, was also there. Defendant drank alcohol and mentioned an argument with Garcia he had earlier in the day. In the evening, Lopez drove himself, Vasquez, and defendant to two local bars, where they stayed for several hours, and defendant drank liquor and beer, and according to Lopez, appeared to act like a "normal buzzed" person. Lopez then dropped defendant and Vasquez off at their respective apartments. Defendant stumbled a bit getting out of the car but was able to walk to the front door by himself with no problem.
B. Events Occurring Immediately After the Shooting of Garcia
Natalie testified that after going to sleep the night of December 15, 2012, she woke up to the sound of Andrew crying inside her parents' bedroom. Natalie got out of bed and walked to the apartment hallway. Natalie saw defendant and called out to him, but he did not respond. Defendant ran through the front door of the apartment, got into his car, and drove away. After turning back inside the apartment living room, Natalie saw a large gun leaning against the back of a couch. She walked back to the noise of Andrew crying.
When she walked into her parents' bedroom, Natalie saw blood on the bedroom walls. Andrew was inside his crib covered in blood and bone fragments. Natalie grabbed Andrew and placed him in the living room. After hearing a knock on the front door, Natalie opened the door and saw a man she recognized as Lopez.
Lopez testified that defendant called him on the phone sometime after Lopez got home from the bars. During the call, defendant stated that he had "F-ed up" and that Lopez needed to check in on his children. Lopez met Vasquez outside defendant's apartment. The men found Natalie and Andrew in the living room. After removing both children from the apartment, the men walked into the rear bedroom where they saw Garcia's partially decapitated body spread out across a bed. Next to Garcia's body was Audri, who was alive and covered in blood. The men called 911.
Vasquez drove his wife, daughters, and sister-in-law to meet up with Lopez and his wife before going to defendant's apartment. Vasquez's wife, Evelia Rodriguez, testified that when they met up, Lopez told Vasquez, "He did it bro."
C. Police Investigation
Several officers with the Porterville Police Department responded to defendant's apartment around 12:48 a.m. on December 16, 2012. Officer Sam Garcia testified that he conducted a protective sweep of the apartment, after which he located a deceased body inside a back bedroom. The body was on top of a bed and next to a child covered in blood and brain matter. A child's crib was next to the bed. Inside the crib were pieces of skull, blood, and brain tissue, a fragmented shotgun pellet and wadding, and a bloody napkin. The bedroom walls and floor were covered in blood spatter, brain matter, flesh, bone fragments, and several shotgun projectiles.
Investigating Officers Brett McGowen and Lancelot Kirk responded to the apartment, where they noticed a shotgun sitting on a plastic bag of clothing near the front doorway to the apartment. A piece of human flesh and blood spatter were on the muzzle of the shotgun. A spent shell was inside the chamber of the shotgun. Four live shells of double-aught buckshot were found inside the gun's magazine tube. A tactical holder on the stock of the gun contained four shotgun shells. Two unloaded handguns and an unloaded assault rifle were also recovered from the apartment.
Officer Kirk testified that double-aught pellets are "just smaller than a 32-caliber bullet [or] about the size of a smaller handgun round."
Firearms expert John Hall examined the 12-gauge pump action shotgun and found it to be in good operating condition. Hall testified that basic military training teaches one not to "point a firearm at anything you are not willing to destroy."
A pathologist with the Tulare County Coroner's office conducted an autopsy of Garcia's body. The pathologist noted that the right side of Garcia's head and face were missing due to an apparent gunshot. Fractured teeth and soot staining to the tongue were found inside the right area of Garcia's mouth. No particle marks or burns were found on Garcia's face, and no micro-tearing was located around her lips. Based on these findings, the pathologist concluded that (1) Garcia died from "a shotgun wound to the head and the death was immediate"; and (2) the barrel of the gun was "likely" placed inside Garcia's mouth when the gun fired.
D. Defendant's Recorded Interviews
Lopez informed investigating officers that defendant had driven to Mexico after shooting Garcia. The following day (December 16, 2012), Detective Bruce Sokoloff spoke with defendant over the telephone and convinced defendant to turn himself in to the Calexico Police Department. The same day, Detective Sokoloff drove to Calexico and took defendant into custody.
The prosecution played several recordings of defendant's phone calls and interviews with the police. The first recording captured defendant's phone call with Detective Kirk on December 16, 2012. Defendant stated, "I'm calling because I made a dumb choice last night." He told Detective Kirk that he and Garcia had decided to "call it quits." As he packed his belongings the night of December 15, Garcia told defendant, "Don't forget your gun so that way you can kill yourself." Defendant stated, "And then I (inaudible) the gun at her and I pulled the trigger.... I didn't know the gun was loaded."
Defendant's recorded interview with Detective Kirk on December 17, 2012, was also played for the jury. In that interview, defendant stated that on December 14, 2012, he and Garcia decided to go to a local shooting range to shoot guns before going Christmas shopping for their children. Around 9:00 a.m. the following morning (Dec. 15), the couple got into an argument while getting ready for the shooting range. After "things [got] out of hand," defendant left Garcia at the apartment and went shopping on his own. Around 3:00 p.m., defendant returned home. When he arrived, Frances told him that she was taking Garcia and the children out for pizza. Garcia then stated that she was going to leave the baby (Andrew) behind. When defendant indicated that he was going to take Andrew with him to his mother's house to run an errand, Garcia told him, "You're not taking him anywhere." Defendant and Garcia argued for about an hour over defendant's "right to have him [(Andrew)] with me." The argument culminated around 4:30 or 5:00 p.m. when Garcia stated, "So what, we're going to call it quits?" Defendant agreed they would get a divorce, and he told Frances, "Hey . . . you know, we're going to end up getting divorced, you know, this ain't working." Frances asked defendant and Garcia to "pray about it," after which defendant left the apartment and went to a bar. Defendant stated he went to two bars with Lopez, consuming one beer at the first bar and up to six beers at the second.
Defendant stated that Garcia was “pretty schooled-up on guns.”
When he arrived at home at approximately 11:00 p.m., he was intoxicated, but "not severely." Garcia was angry he was drunk and told him to "get out." She told him, "Don't forget to take your guns and go kill yourself." Defendant retrieved some clothes, packed a bag, and took his shotgun from the bedroom closet. Defendant planned on taking the shotgun with him. Defendant identified the five tactical rounds attached to the shotgun and said that "those are for security. I-I don't-I don't know why- well, obviously one of us did it, put rounds in the chamber or in the tube." He also stated, "I have a thing that I do to show that my guns aren't loaded and I point them at myself and I pull the trigger. My guns are never loaded. [¶] . . . [¶] And she kept talking shit and-and-and I was all, 'Krystal, look,' and when I did that, you saw what happened." Defendant continued, "I guess you could say [that] I was trying to scare her or whatever. Like, I didn't think it was loaded." He then said, "I don't know why I did it. [¶] . . . [¶] Yeah, I just-I don't know. Maybe I just snapped. I don't-I don't remember." Although he admitted he had been upset all day, he said he was not mad at Garcia at that particular moment.
Defendant clarified that he was “a little closer to being intoxicated than not.”
Defendant said the muzzle was inches away from Garcia's face when he pulled the trigger. He acknowledged that he did not test the shotgun as he normally did, which required visually inspecting the gun and pointing it at himself. Defendant estimated that he had visually checked his guns "[h]undreds, thousands" of times in the past. He said he did not know how or when the rounds were loaded in the gun.
In a follow up interview with Detective Ron Moore, defendant stated that as a trained Marine he was experienced at handling firearms. When asked if when he "get[s his shotgun] to take it with you, it's not loaded; right?," defendant responded, "No, it is loaded." Detective Moore replied, "You keep it unloaded you said," to which defendant said, "all my guns are always unloaded- [¶] . . . [¶] -unless I have my kids with me," in which case he carried it loaded for protection. Defendant also stated that his shotgun always had a tactical clip attached with loaded shells, and that his "thing is [c]ondition 1. [¶] . . . [¶] Ready to rock and roll."
Testimony by Manuel DeAnda, a fellow combat patrolman of defendant who testified for the defense, established that “condition one” means a magazine is in the weld, and a round is in the chamber. Later in the interview, defendant stated that he did not keep his shotgun in condition one, but kept it in condition four, meaning that no rounds were placed in the chamber or magazine tube.
Although Garcia was familiar with his guns and had fired them, defendant told Detective Moore she would not have loaded the gun. Rather, he said, "There's no doubt that I loaded it" at some point before the shooting; he just knew that he did not load it the night of the shooting. Nevertheless, defendant acknowledged that at some point he may have forgotten that he placed rounds in the shotgun. The last time defendant had shot his guns was six months prior, and it was possible he had forgotten to unload the weapon afterwards.
Defendant also admitted to racking the shotgun before pulling the trigger. He said he was expecting a "clear" because he did not think it was loaded. He acknowledged that it was unusual for a person trained in firearms to pull the trigger of any firearm inside a residence.
Detective Kirk extracted the messages from defendant's cell phone, including an unsent message stating the shooting was an accident.
2. Defense Evidence
Pathologist Katherine Raven examined the autopsy report for Garcia and testified that she could not determine whether the shotgun had been placed inside Garcia's mouth prior to firing.
Defendant's sister, Analilia Aparicio, and several of defendant's friends, Herman Sifuentes and Nila Gibson, testified that defendant was happy and carefree before reporting for duty in the military. After returning from two tours of duty in Iraq, defendant was reserved, distant, withdrawn, and paranoid.
Manuel DeAnda, Manuel Ponce, and Rocky Johnson served with defendant in the Marines as combat patrolmen. Johnson testified that he had observed defendant being trained in firearms. He and defendant had received training not to handle firearms while drunk and not to put a gun in someone's face and pull the trigger unless they intended to kill them. While on patrol, Marines placed their firearms in condition one.
DeAnda, Ponce, and Johnson each discussed gruesome and emotionally disturbing wartime experiences that defendant endured while stationed in Iraq. Johnson also testified that defendant had called him the day after shooting Garcia and stated, "I didn't know it was loaded. I didn't know it was loaded. I didn't mean to pull the trigger."
Dr. Lance Zimmerman testified as an expert psychologist on the adverse side effects of defendant's military service in Iraq. After performing diagnostic tests on defendant, Dr. Zimmerman diagnosed defendant with post-traumatic stress disorder (PTSD) with a mood disorder, depressive disorder, and alcohol use disorder. Dr. Zimmerman could not rule out the presence of a traumatic brain injury (TBI) that could have resulted from a head injury defendant suffered in Iraq. The doctor opined that a person with defendant's history would generally have difficulty with judgment and impulse control.
3. Information, Verdict, and Sentencing
Defendant was charged by amended information with committing first degree murder of Garcia (§ 187, subd. (a); count 1), and three counts of child endangerment as to Natalie, Audri, and Andrew (§ 273a, subd. (a); counts 2-4, respectively). The information also alleged that as to count 1, defendant personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)), and as to all counts, defendant personally used a firearm (§ 12022.5, subd. (a)(1)).
Following trial, a jury convicted defendant of second degree murder on count 1 and convicted him of child endangerment on counts 2 through 4. The jury also found true every firearm use allegation alleged on counts 1 through 4. Defendant was sentenced to an overall term of six years plus 40 years to life, calculated as follows: on count 2, an upper-term sentence of six years for child endangerment of Natalie (§ 273a, subd. (a)); on counts 3 and 4 for child endangerment of Audri and Andrew (§ 273a, subd. (a)), four-year sentences running concurrently with count 2; and on count 1, 15 years to life for second degree murder (§ 187, subd. (a)), plus 25 years for the intentional discharge of a firearm causing death (§ 12022.53, subd. (d)), running consecutively to count 4. The court stayed the sentences on the firearm use enhancements on counts 1 through 4 under section 12022.5, subdivision (a), ordered defendant to pay various fines, fees, and assessments, and awarded defendant 2,190 days of custody credit to be credited against his determinate sentences on counts 2 through 4. The court did not apply the remaining 454 days of presentence custody credit to defendant's indeterminate sentence on count 1. Instead, it delegated its authority to the California Department of Corrections and Rehabilitation to determine if the remaining presentence custody credits applied to the sentence imposed on count 1. Defendant timely appealed.
DISCUSSION
1. Failure to Instruct on Involuntary Manslaughter as Lesser Included
Defense counsel requested that the trial court instruct the jury on involuntary manslaughter as a lesser included offense of murder. The request was based on two scenarios: (1) that defendant suffered from a mental defect sufficient to negate his ability to harbor malice; and (2) that defendant did not know the shotgun was loaded. The court denied counsel's requested instruction, but granted her additional request for an instruction on voluntary manslaughter based on theories of heat of passion and voluntary intoxication.
Defendant now contends the trial court erred by refusing to instruct the jury on involuntary manslaughter "based on the theory that he acted with criminal negligence in aiming and firing a gun that he believed was unloaded." (CALCRIM No. 580.) We agree the trial court erred, but find the error harmless.
A. Substantial Evidence Supported the Requested Instruction
"A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence . . . which, if accepted, '"would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser' [citation]." (People v. Cole (2004) 33 Cal.4th 1158, 1218.) In other words, to warrant instruction on the lesser offense, substantial evidence must support the conclusion that the defendant committed the lesser included offense and not the greater offense. (People v. Gonzalez (2018) 5 Cal.5th 186, 196 (Gonzalez); see People v. Breverman (1998) 19 Cal.4th 142, 154-156 (Breverman).) "The jury's exposure to 'the full range of possible verdicts . . . ensure[s] that the verdict is no harsher or more lenient than the evidence merits.'" (Gonzalez, at p. 196.)
"'"[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense . . . ." [Citation.] Rather, substantial evidence must exist to allow a reasonable jury to find that the defendant is guilty of a lesser but not the greater offense. [Citation.] "'"Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive."'" [Citation.]' [Citation.]" (People v. Westerfield (2019) 6 Cal.5th 632, 717.) In deciding whether to instruct the jury on a lesser included offense, trial courts must not evaluate the credibility of witnesses and must resolve doubts regarding the sufficiency of evidence in a defendant's favor. (Breverman, supra, 19 Cal.4th at p. 162; People v. Tufunga (1999) 21 Cal.4th 935, 944.) We review de novo the trial court's refusal to instruct on a lesser included offense. (People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers); People v. Manriquez (2005) 37 Cal.4th 547, 584.)
Defendant was convicted of second degree murder, i.e., unlawfully killing Garcia with malice aforethought but without willfulness, premeditation, and deliberation. (See § 187, subd. (a); People v. Knoller (2007) 41 Cal.4th 139, 151.) Malice may be express or implied. Malice is express "when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." (§ 188, subd. (a)(1).) It is implied when the "circumstances attending the killing show an abandoned and malignant heart." (§ 188, subd. (a)(2).) The "abandoned and malignant heart" language has been construed to require (a) "the performance of 'an act, the natural consequences of which are dangerous to life,'" and (b) "that the defendant 'knows that his conduct endangers the life of another and . . . acts with conscious disregard for life.'" (People v. Soto (2018) 4 Cal.5th 968, 974, quoting People v. Watson (1981) 30 Cal.3d 290, 300.)
Involuntary manslaughter is a lesser included offense of murder. (Gonzalez, supra, 5 Cal.5th at p. 197; People v. Abilez (2007) 41 Cal.4th 472, 515.) Involuntary manslaughter is an unlawful killing of a human without malice. (§ 192, subd. (b).) By statute, commission of the offense requires (1) "an unlawful act, not amounting to a felony"; or (2) "a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).) However, courts have defined additional, nonstatutory forms of the offense based on the acts of (3) a noninherently dangerous felony accomplished without due caution and circumspection; or (4) an inherently dangerous assaultive felony. (See Brothers, supra, 236 Cal.App.4th at pp. 31-33; People v. Smith (2021) 70 Cal.App.5th 298, 309 &fn. 19; People v. Butler (2010) 187 Cal.App.4th 998, 1006-1007 (Butler), citing People v. Burroughs (1984) 35 Cal.3d 824, 835-836, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89 (Blakeley); People v. Bryant (2013) 56 Cal.4th 959, 966.) Involuntary manslaughter requires the absence of malice aforethought and the presence of criminal negligence. (People v. Ochoa (1998) 19 Cal.4th 353, 423; see People v. Skiff (2021) 59 Cal.App.5th 571, 579 ["The mental state required . . . is criminal negligence"].)
In this case, the killing occurred in the course of committing felony assault with a deadly weapon, as defendant either placed the shotgun in Garcia's mouth or pointed its muzzle a few inches from her face admittedly in an attempt to scare her during a heated argument. (See People v. Raviart (2001) 93 Cal.App.4th 258, 263 ["Assault with a deadly weapon can be committed by pointing a gun at another person"]; People v. Laya (1954) 123 Cal.App.2d 7, 16 ["The mere pointing of a gun at a victim constitutes an assault with a deadly weapon, whether or not it is fired at all"]; People v. Hartsch (2010) 49 Cal.4th 472, 507-508 [assault with a deadly weapon conviction upheld where defendant pointed gun "in a menacing manner" under "threatening circumstances"].) Assault with a firearm is an inherently deadly assaultive felony. (People v. Rhodes (1989) 215 Cal.App.3d 470, 476, disapproved of on other grounds by People v. Barton (1995) 12 Cal.4th 186 ["[A]ssault with a deadly weapon is inherently dangerous due to the nature of the weapon or the degree of force"].) As such, depending on the circumstances, involuntary manslaughter was an available theory of liability in this case. (See Brothers, supra, 236 Cal.App.4th at pp. 31-33.)
"Both murder (based on implied malice) and involuntary manslaughter involve a disregard for life; however, for murder the disregard is judged by a subjective standard whereas for involuntary manslaughter the disregard is judged by an objective standard. [Citations.] Implied malice murder requires a defendant's conscious disregard for life, meaning that the defendant subjectively appreciated the risk involved. [Citation.] In contrast, involuntary manslaughter merely requires a showing that a reasonable person would have been aware of the risk." (Butler, supra, 187 Cal.App.4th at p. 1008.) The distinguishing factor between implied malice (required for second-degree murder) and criminal negligence (required for involuntary manslaughter) is whether the defendant "subjectively appreciated the risk involved" in his conduct. (Ibid.)
Even if the resulting death was accidental, depending on the defendant's subjective awareness of the risk, a jury may reasonably find that a defendant exhibited a conscious disregard for life sufficient to support a murder conviction. (See People v. Benitez (1992) 4 Cal.4th 91, 103, 110 ["Even if the act results in a death that is accidental, as defendant contends was the case here, the circumstances surrounding the act may evince implied malice"]; People v. Thomas (2012) 53 Cal.4th 771, 814-815 (Thomas) ["An unintentional shooting resulting from the brandishing of a weapon can be murder if the jury concludes that the act was dangerous to human life and the defendant acted in conscious disregard of life"]; People v. McNally (2015) 236 Cal.App.4th 1419, 1426 (McNally) ["A person acts with implied malice when he is under the influence of alcohol and/or drugs, engages in joking or horseplay with a firearm, and causes the discharge of the firearm killing another person"]; People v. Goodman (1970) 8 Cal.App.3d 705, 707, disapproved on another ground by People v. Beagle (1972) 6 Cal.3d 441, 451 [implied malice properly found where defendant shot his fiance with a .12 gauge pump shotgun but stated "he did not know the gun was loaded [and] that just as he pulled the trigger the victim told him it was loaded but it was too late"].)
A defendant's prior training and experience with firearms and gun safety can demonstrate subjective awareness of the deadly risks associated with careless behavior involving firearms. McNally, supra, 236 Cal.App.4th at pages 1425-1426, is instructive. In that case, a federal correctional peace officer was convicted of second degree murder in the shooting death of a fellow correctional peace officer. The defendant argued there was insufficient proof that he had the necessary subjective awareness of the risk, but the Court of Appeal disagreed, holding as follows: "[Defendant] had such awareness. He was knowledgeable about firearms and firearm safety, was trained to keep his index finger off the trigger, and was trained to assume that 'guns are always loaded.' It is uncontroverted that [defendant] ignored all the handgun safety rules and had been drinking and using drugs when he brandished the pistol. [Defendant] admitted that he 'broke the golden rule' not to point a firearm '[a]t anything you don't want to destroy' and that his finger somehow 'squeezed the fucking trigger.'" (Id. at p. 1426.) In part based on the defendant's professional training and experience with firearms, the court held the jury could reasonably conclude he acted with implied malice such that his murder conviction should be upheld.
Accidental killings with a firearm may, however, constitute involuntary manslaughter instead of murder, depending on the defendant's understanding of the risk. (See 1 Witkin &Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against the Person, § 254, p. 1079 ["[C]riminal negligence is frequently found in the unintended killing by a gun. The negligence may consist of pointing it without looking to see if it is loaded, or handling or shooting it in a place where it is likely to injure another"]; Thomas, supra, 53 Cal.4th at p. 814 ["[A]n accidental shooting that occurs while the defendant is brandishing a firearm . . . could be involuntary manslaughter"].)
In this trial, the fact-specific question whether defendant's mental state constituted mere criminal negligence as opposed to a conscious disregard for life should have been put to the jury. Although "[t]he court is not . . . required to give an involuntary manslaughter instruction where the defendant's self-serving statements denying intent to kill are deemed insubstantial in character" (People v. Evers (1992) 10 Cal.App.4th 588, 597598), we agree with defendant that his multiple statements to police and friends that he believed the gun was unloaded constitute substantial evidence supporting the giving of involuntary manslaughter instructions. (See People v. Carmen (1951) 36 Cal.2d 768, 776-777 [defendant entitled to involuntary manslaughter instruction because he testified he had no intent to shoot anyone; was carrying a gun with a round in the firing chamber, pointed forward, while approaching an occupied vehicle; and stumbled and the gun went off]; but see People v. Ibarra (1982) 134 Cal.App.3d 413, 420 [involuntary manslaughter instruction not warranted despite defendant's statement he did not intend to kill victim, where evidence showed defendant pointed gun at victim's chest from three or four feet away, he did not deny knowing gun was loaded, he used a bracing technique for steady aim, and he pulled the trigger a second time while in this deadly stance].) Defendant stated he was only trying to scare Garcia and expected a "clear" when he pulled the trigger while pointing the shotgun at Garcia at close range. Such evidence, albeit from a defendant whose story contained inconsistencies, is sufficient to warrant the requested jury instruction. (See People v. Lewis (2001) 25 Cal.4th 610, 646 ["testimony of a single witness, including the defendant, can constitute substantial evidence requiring the court to instruct"]; People v. Glenn (1991) 229 Cal.App.3d 1461, 1467, abrogated on other grounds by Blakeley, supra, 23 Cal.4th 82 ["The fact [defendant] testified to different versions of how the stabbing occurred did not undercut his request for an involuntary manslaughter instruction but at most raised a credibility question to be resolved by the jury"].) Thus, the trial court erred by refusing to provide an instruction on involuntary manslaughter.
B. The Error Was Harmless
Having concluded that the jury should have received instructions on involuntary manslaughter, we must now consider whether the error was prejudicial. "The prejudice arising from the failure to give such instructions is the risk that the jury ignored its instructions and convicted the defendant of an offense . . . for which the prosecution did not carry its burden. The jury might have been convinced that the defendant was guilty of some lesser included offense and, as a result, tempted to convict of a greater offense rather than acquit." (Gonzalez, supra, 5 Cal.5th at p. 200.)
In non-capital cases, "[t]he trial court's failure to instruct on lesser included offenses . . . of murder with malice aforethought is subject to harmless error review" under the standard of People v. Watson (1956) 46 Cal.2d 818 (Watson). (Gonzalez, supra, 5 Cal.5th at p. 199, citing Breverman, supra, 19 Cal.4th at p. 176; see People v. Rogers (2006) 39 Cal.4th 826, 867868; Thomas, supra, 53 Cal.4th at p. 814 [applying Watson and Breverman to the trial court's refusal to give an instruction on involuntary manslaughter as lesser included of murder].) Under the Watson standard, reversal is required only if defendant shows a "different result was reasonably probable" had the jury been instructed on involuntary manslaughter. (Gonzalez, at p. 201; People v. Blackburn (2015) 61 Cal.4th 1113, 1132 [error is harmless under Watson standard unless "'it is reasonably probable that a result more favorable to [the defendant] would have been reached in the absence of the error'"].) "'Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.'" (Thomas, at p. 814, quoting Breverman, at p. 177.)
Applying these standards, we conclude the trial court's error was harmless. It is not reasonably probable that, assuming the jury received involuntary manslaughter instructions, it would have found defendant acted with mere criminal negligence in killing Garcia. As discussed below, the evidence was strong that defendant either knew the shotgun was loaded and intended to shoot Garcia, or at a minimum he acted in conscious disregard for life because he fully appreciated the risk of pointing a shotgun at Garcia and pulling the trigger without confirming whether the gun was unloaded.
With respect to the evidence supporting a finding that defendant intentionally killed Garcia, the jury heard testimony from Garcia's sister that defendant admitted he had previously threatened to kill Garcia if something went wrong at a court hearing, and he admitted he had brought a gun with him in his car for this purpose. Such evidence of a prior threat to kill Garcia by shooting her was relevant to show an intent to kill her on the night of the shooting. (See People v. Lasko (2000) 23 Cal.4th 101, 112 ["evidence that defendant had threatened to kill [the victim] a month and a half before the killing" was relevant to prove the defendant's intent to kill the victim]; People v. Rodriguez (1986) 42 Cal.3d 730, 757 ["A defendant's threat against the victim . . . is relevant to prove intent in a prosecution for murder"].)
In addition, the day defendant shot Garcia, the two had engaged in multiple heated arguments over the course of the day, including discussions about getting a divorce. Defendant admitted that just before he took the shotgun out of the closet Garcia had told him to "get out" of their apartment and to "kill [him]self." Defendant admitted he had been angry earlier in the day, and Garcia's mother testified defendant was "very, very mad" when he arrived at the house after an earlier argument with Garcia. Defendant was still talking about the argument with Garcia when he went drinking with his friends in the afternoon. Although defendant denied being angry at the moment he pulled the trigger late that same night, the jury reasonably could have found he would react angrily when Garcia told him to take his things and leave, and to remember to take his guns so he could kill himself. Defendant himself acknowledged to the police that "[m]aybe [he] just snapped" as a result.
The fact that defendant either put the muzzle of the shotgun in Garcia's mouth or pointed it several inches from her face, racked the gun, and pulled the trigger, is circumstantial evidence that he intended to shoot her. (See People v. Lee (1999) 20 Cal.4th 47, 58 ["The evidence that defendant quarreled with his wife, the quarrel escalated into shoving and pushing, defendant broke off the argument, went to another room and obtained a loaded gun, and that gun was fired at close range while in contact with the victim's head, is clearly sufficient to support an inference that defendant retrieved and fired the gun with the intent to kill his wife"].)
Even if the jury was not convinced that defendant intended to kill Garcia, the evidence was compelling that defendant exhibited a conscious disregard for life. Defendant was a trained Marine with experience and training in handling firearms. He understood the necessity of checking his shotgun before handling it and certainly before pointing it at Garcia's face and pulling the trigger. Indeed, he stated his usual (albeit highly dangerous) practice was to check if the gun was loaded by pointing it at himself and pulling the trigger. In this instance, however, he did not point the gun at himself or otherwise check if the gun was loaded. In total disregard of the known risk, defendant racked the shotgun, pointed it so that the muzzle was inches away from Garcia's face or inside her mouth, and pulled the trigger. It is not reasonably probable that the jury would have found defendant acted without realizing the risk involved; rather, the evidence is overwhelming that he acted in total disregard of the danger.
The only evidence introduced at trial tending to dispute defendant's subjective awareness of the deadly risks of his actions were defendant's own statements that he did not know or believe that the shotgun was loaded. These statements were dubious at best and were self-contradictory. (See People v. Jones (2012) 54 Cal.4th 1, 62 [whether statements are contradictory is relevant for purposes of harmless error review]; People v. Davis (2009) 46 Cal.4th 539, 616 [same].) While he told the police and friends that he did not believe his shotgun was loaded, defendant also reported that he kept his shotgun in condition one, "[r]eady to rock and roll," meaning that it was loaded. He stated that when he took the gun out with him, it would be loaded. He also told his friend Johnson that he did not mean to pull the trigger, which contradicts his other statements that he meant to pull the trigger but believed nothing would happen because he thought the gun was unloaded. Overall, compared with the strong evidence presented to the jury that he acted in conscious disregard for life, the evidence that he was guilty merely of criminal negligence, consisting solely of self-serving statements by defendant, was quite weak. (See Thomas, supra, 53 Cal.4th at p. 814.)
Even if the jurors believed that defendant thought the gun was unloaded, they still were likely to have found that he exhibited a conscious disregard for life, given his Marine training on the need to always take precautions when handling firearms. Defendant had been trained never to point a gun at someone he did not intend to kill and never to handle weapons while drunk. Ample evidence supported the conclusion that defendant appreciated the risk, but chose to disregard all his training and usual safety practices during his late-night argument with Garcia.
Moreover, the jury's unanimous finding on the firearm enhancement (§ 12022.53, subd. (d)) helps dispel the notion that any jurors believed defendant's statements that he did not know the shotgun was loaded. (See Gonzalez, supra, 5 Cal.5th at p. 209 ["a special circumstance finding may provide a means of gaining insight into what the jury would have done in the absence of the error"]; People v. Koontz (2002) 27 Cal.4th 1041, 1085-1086 ["Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions"]; People v. Prettyman (1996) 14 Cal.4th 248, 276 [same].) To find the section 12022.53, subdivision (d) enhancement true, the jury was instructed it had to conclude beyond a reasonable doubt that defendant "personally discharged a firearm" and "intended to discharge the firearm." (See CALCRIM No. 3149; People v. Offley (2020) 48 Cal.App.5th 588, 598 ["Section 12022.53, subdivision (d) provides that the defendant must have intended to discharge a firearm"].) The jury was further instructed that a firearm is any device from which "a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion." (CALCRIM No. 3149.) If the jury had credited defendant's statements that he did not believe the shotgun was loaded, it logically should not have found that he intended to "discharge" the firearm. Simply pulling the trigger of an unloaded gun does not constitute "discharge" of a firearm for purposes of section 12022.53; rather the pulling of the trigger must, at a minimum, cause an explosion in its firing chamber in order to constitute a discharge within the plain meaning of subdivision (d) of section 12022.53, and the instructions received by the jury. (See People v. Grandy (2006) 144 Cal.App.4th 33, 45.) Based on the jury's true finding, it is reasonable to conclude the jury found that defendant intentionally fired the shotgun believing it to be loaded.
Defendant appears to suggest that this case involves the classic "all-or-nothing" dilemma attending the failure to instruct on a lesser included offense by requiring the jury to convict defendant of murder or to fully acquit him of the charge. Defendant correctly notes that the duty to instruct on lesser included offenses is designed to avoid just this kind of all-or-nothing choice. (See Breverman, supra, 19 Cal.4th at p. 155.) But the jury was not presented with this scenario, as it also received instructions on voluntary manslaughter. Had the jury believed defendant was not guilty of second degree murder, it could have exhibited lenity by convicting him of voluntary manslaughter. (See People v. Yeoman (2003) 31 Cal.4th 93, 130 [jury not faced "'with an all-or-nothing choice between the offense of conviction . . . and innocence,'" as it received instructions on several lesser included offenses of capital murder].) Further, as discussed above, it could have found not true the section 12022.53, subdivision (d) enhancement.
In sum, we conclude that while the court erred by refusing to instruct the jury on involuntary manslaughter, defendant has not shown a reasonable probability that the jury would have reached an outcome more favorable to him if it had been instructed on the lesser included offense of involuntary manslaughter.
2. Failure to Provide an Unanimity Instruction
Defendant does not challenge his convictions on counts 3 or 4 for endangering Audri and Andrew. However, as to count 2 for child endangerment as to Natalie, he argues the trial court erred by failing to provide an unanimity instruction (CALCRIM No. 3500) on the manner in which defendant's conduct endangered Natalie. We agree.
Despite his failure to raise the issue in the trial court, defendant "may still raise the issue on appeal." (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
A. Governing Law and Standard of Review
Criminal defendants are guaranteed a constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16; People v. Napoles (2002) 104 Cal.App.4th 108, 114 (Napoles).) "From this constitutional principle, courts have derived the requirement that if one criminal act is charged, but the evidence tends to show the commission of more than one such act,' either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.' [Citations.]" (Napoles, at p. 114; accord, People v. Maury (2003) 30 Cal.4th 342, 422; People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 (Melhado).)
Given the disjunctive nature of this requirement, the trial court is not dutybound to give an unanimity instruction if the prosecution makes an effective election to the jury "'tying each specific count to specific criminal acts.'" (People v. Brown (2017) 11 Cal.App.5th 332, 341 (Brown).) To communicate an effective "election," the prosecutor must make a statement, usually in opening statement or closing argument, "with as much clarity and directness as would a judge in giving instruction." (Melhado, supra, 60 Cal.App.4th at p. 1539; accord, People v. Brugman (2021) 62 Cal.App.5th 608, 629; see also People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455 [prosecutor made clear election by "repeatedly assert[ing]" the facts on which the prosecution sought conviction during closing argument].) We review claims of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
B. Relevant Background
When discussing the charges in counts 2 through 4 for child endangerment, the prosecutor argued as follows:
"So . . . what we are talking about is [the defendant] had the care or custody of a child. He is the parent. He was in the home. They were there, it's not in dispute. And he willfully caused or permitted the child to be placed in a situation where the child's person or health was endangered. That's why I keep saying endangerment, okay?
"Yeah. Of course it was. He shot [Garcia] with a shotgun, buckshot. It was every where. And in his statement he said I didn't know even if the kid was dead. He fled. He didn't check. But it was definitely a possibility sitting there, right?Caused or permitted the child to be endangered under circumstances or conditions likely to produce great bodily harm or death. Yeah. He did.
"And he was criminally negligent when he caused or permitted the child to be in danger.... And what else he did?He left that loaded shotgun right by the front door where he ran out right on the ground. [¶] Who was up walking around, saw him run out the door, get in the car and saw that shotgun loaded? Natalie. Seven-year old. What would have happened if she got her hands on it?That's what this is talking about. [¶] . . . [¶]
"So you think about what an ordinarily careful person blasts someone's head off in their bedroom and leave the loaded gun with potentially kids running around on the ground. The person's acts amount to disregard for human life or indifference to the consequences. Absolutely. He was only concerned about . . . getting himself out and running."
The prosecutor continued:
"Audrey.. . . Was she endangered on that bed?Right there in the corner, laying in mom's blood where the gun blast had just gone [off] and he said she was on the bed when he did it.. . .
The prosecutor described a similar factual scenario as to Andrew: "There is the baby. Mom's blood still on the shirt.... And what was next to him in the crib? It's hard to see in this photo when you look at it down towards the bottom of the crib in the middle there is . . . that shiny thing, a shotgun fragment from one of the buckshot."
There is the gun right by the door. Right? Natalie described long, black. You can see the tactical rail still in place in this photo. Did he endanger them when he left that there?He ran. No one there to help the kids. [¶] . . . [¶] He shot with the toddler on the bed and the infant in the crib and left the gun on the floor when he ran away and he left Natalie to literally pick up the pieces at seven years old. [¶] . . . This is what child endangerment with a gun looks like."
C. The Trial Court Erred in Failing to Give Unanimity Instruction
Defendant was charged with three counts of child endangerment for "willfully caus[ing] or permitting]" Natalie, Audri, and Andrew "to be placed in a situation where his or her person or health is endangered." (§ 273a, subd. (a); see People v. Superior Court (Ghilotti) 27 Cal.4th 888, 917 (Ghilotti) [§ 273a requires proof that a child "is placed in a situation where a serious health hazard or physical danger is 'reasonably foreseeable'"].)
Defendant contends the trial court was required to provide an unanimity instruction on count 2 for endangering Natalie's person or life, because the prosecution set forth evidence of "two completely distinct acts involving different circumstances, the firing of the shotgun the one time, and then later leaving the shotgun as [defendant] was fleeing." The Attorney General contends the court was not required to instruct on unanimity because the prosecutor communicated a clear election during closing argument to pursue conviction on defendant "leaving the loaded shotgun in a place where Natalie could access it."
We reject the Attorney General's argument and conclude the prosecution did not communicate a clear election. To begin with, the prosecutor never parsed out the particular offenses charged in counts 2 through 4. On the contrary, the prosecutor addressed the offenses generally and discussed both criminal acts of discharging a shotgun and leaving the shotgun behind: "So you think about what an ordinarily careful person blasts someone's head off in their bedroom and leave the loaded gun with potentially kids running around on the ground." The Attorney General identifies nothing in the prosecutor's closing argument "'tying'" the offense charged in count 2 as to Natalie "'to specific criminal acts.'" (Brown, supra, 11 Cal.App.5th at p. 341.)
A similar argument by the prosecution was rejected in Melhado, supra, 60 Cal.App.4th 1529. In that case, the defendant made several threatening statements to the victim on the same day (“‘I'm going to blow you away if you don't bring my car back,'” made at 9:00 a.m.; and “‘If I don't get this car by Monday, then I'm going to blow [you] away,'” made at 11:00 a.m.), but he was charged and convicted of making one criminal threat (§ 422). (Id. at pp. 1532-1533.) In his summation to the jury, the prosecutor described both threatening statements when addressing the elements of the charged offense. (Id. at p. 1535.)
On appeal, the defendant in Melhado sought reversal of his conviction due to the court's failure to instruct the jury that it must unanimously find defendant guilty of making a particular criminal threat. (60 Cal.App.4th at pp. 1532, 1534.) As in this case, the Attorney General argued that the prosecutor clearly elected to pursue one threatening statement by "relying on the 11 a.m. [threat], and that he was mentioning the [other statements] only as embellishments to the retelling of the tale." (Id. at p. 1535.) In other words, the prosecution's closing argument placed "more emphasis" on the 11 a.m. threat than on the others. (Id. at p. 1536.)
The court rejected this argument, reasoning that "[i]t is possible to parse the prosecution's closing argument in a manner which suggests that more emphasis was placed on [one threat] than on the others. However, even assuming that this was so, we find that the argument did not satisfy the requirement that the jury either be instructed on unanimity or informed that the prosecution had elected to seek conviction only for the 11 a.m. [threat]." (Melhado, supra, 60 Cal.App.4th at p. 1536.) "Because the prosecution's election was never clearly communicated to the jury, the trial court should have instructed on unanimity." (Id. at p. 1539.)
We find Melhado instructive and apply its reasoning to this case. Here, the prosecutor discussed the elements of child endangerment by referencing both the discharge of a shotgun in close proximity to children, and leaving the discharged shotgun within reach of children. Even if the prosecutor "focused" on leaving the shotgun behind when discussing child endangerment as to Natalie, he did not clearly inform the jury that he "had elected to seek conviction only" for leaving the shotgun on that particular count. (Melhado, supra, 60 Cal.App.4th at p. 1536; accord, People v. Norman (2007) 157 Cal.App.4th 460, 465 [prosecutor "specifically argued both" criminal acts for charged offense].) In the absence of a clear election, the trial court erred by not providing an unanimity instruction on count 2.
D. The Error was Prejudicial
An unanimity instruction "is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count." (People v. Deletto (1983) 147 Cal.App.3d 458, 472.)
There is a split in authority regarding the standard of prejudice to apply for the failure to provide an unanimity instruction. (See People v. Hernandez (2013) 217 Cal.App.4th 559, 576 (Hernandez); Napoles, supra, 104 Cal.App.4th at p. 119, fn. 8.) Some courts have applied Watson, supra, 46 Cal.2d 818 to inquire whether "disagreement among the jurors concerning the different specific acts proved is not reasonably possible." (Napoles, at p. 119; see People v. Vargas (2001) 91 Cal.App.4th 506, 562 [applying Watson ].) But a majority of courts have applied the more stringent harmless error standard of Chapman v. California (1967) 386 U.S. 18 (Chapman), under which the failure to give an unanimity instruction must have been harmless beyond a reasonable doubt. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 187-188 (Wolfe); Hernandez, at p. 577; People v. Smith (2005) 132 Cal.App.4th 1537, 1545.) We agree that the Chapman standard is appropriate here because the failure to give an unanimity instruction has the effect of lowering the prosecution's burden of proof and therefore violates federal constitutional law. (Wolfe, at pp. 187-188.)
Under the Chapman standard, the failure to provide an unanimity instruction is harmless "[w]here the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that [the] defendant committed all acts if he committed any." (People v. Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson).) Under this analysis, "[t]he important question is whether there was anything in the record by way of evidence or argument to support discriminating between the two incidents such that the jury could find that appellant committed one [criminal act] but not the other." (People v. Brown (1996) 42 Cal.App.4th 1493, 1502.) "For example, where the defendant offered the same defense to all criminal acts and 'the jury's verdict implies that it did not believe the only defense offered,' failure to give a[n] unanimity instruction is harmless error. [Citation.] But if the defendant offered separate defenses to each criminal act, reversal is required." (Hernandez, supra, 217 Cal.App.4th at p. 577.)
The two acts described by the prosecutor as constituting child endangerment-firing the shotgun in the bedroom and then leaving it unattended downstairs for Natalie to access-were distinct in character and time. In his summation to the jury, the prosecutor first addressed defendant's act of shooting Garcia inside their bedroom: "He shot [Garcia] with a shotgun, buckshot. It was everywhere." Following these remarks, the prosecutor argued: "And what else he did [sic]? He left that loaded shotgun right by the front door." In summation, the prosecutor again distinguished between these acts: "So you think about what an ordinarily careful person blasts someone's head off in their bedroom and leave the loaded gun with potentially kids running around on the ground." (Italics added.) There was a rational basis for distinguishing between these acts, and for each act, different defenses were available as to whether Natalie was placed in danger. (§ 273a; Ghilotti, supra, 27 Cal.4th at p. 917.)
We cannot conclude that the jury "must have believed beyond a reasonable doubt that [the] defendant committed all acts if he committed any." (Thompson, supra, 36 Cal.App.4th at p. 853.) The parties agree on appeal that defendant's shooting of Garcia would not have been a strong theory for child endangerment as to Natalie; indeed, the Attorney General posits that "it is extremely unlikely that the jury would have found [defendant] guilty of endangering Natalie by firing the shotgun and not by leaving the loaded shotgun within her reach. Natalie was not in the room when [defendant] fired the shotgun and there was no evidence that any bullet fragments ended up in her room." The Attorney General thus effectively concedes we cannot find that each of the 12 jurors necessarily would have found defendant guilty beyond a reasonable doubt as to the child endangerment charge for Natalie based on his discharge of the shotgun.
On the other hand, any notion that all the jurors must have based their guilty verdict on defendant's having left the loaded shotgun within Natalie's reach is called into doubt by the jury's true finding on the enhancement for personal use of a firearm on count 2 (§ 12022.5, subd. (a)). (See People v. Jones (2003) 30 Cal.4th 1084, 1120 [true finding on firearm enhancement may demonstrate theory on which jury found defendant guilty].) The Attorney General concedes on appeal that a section 12022.5, subdivision (a) gun use enhancement cannot be predicated on leaving a gun accessible to a child, because that conduct does not constitute "use" of a gun under the relevant standards. The court instructed the jury with CALCRIM No. 3146, stating that "[s]omeone personally uses a firearm if he or she intentionally does any of the following: (1) displays the weapon in a menacing manner; (2) hits someone with the weapon; or (3) fires the weapon." Further, the prosecutor told the jury in closing: "And there is a separate allegation . . . on all of the charges including the child endangerment charges of he personally used a firearm. And you personally use a firearm if you display it in a menacing manner, if you hit someone with it or if you fire it, so you certainly have one and three. He fired the weapon." The jury's true finding on this gun use allegation as to the child endangerment count for Natalie thus suggests that at least some of the jurors based their verdicts on the underlying charge on the act of firing the shotgun, not leaving a loaded gun accessible to Natalie. We reject the Attorney General's contention that "there was no ambiguity or confusion" that the jury predicated its conviction on count 2 based on the distinct act of leaving the shotgun on the floor.
As demonstrated by her closing argument, defense counsel appeared to understand the prosecution's theory of child endangerment as to Natalie to be predicated on the defendant's firing of the weapon inside the apartment. When discussing the gun use allegation on count 2, defense counsel stated: "So you [have] to be endangered when the gun goes off, right? ....[¶] Natalie wasn't in the room. So I feel like I just wanted to address that because that's certainly something that I am asking you to take into account. Natalie wasn't in the room so she was never endangered when the firearm went off." It is quite possible that some of the jurors shared defense counsel's apparent understanding of the prosecution's theory.
In sum, because the jurors could reasonably distinguish between the two acts committed by defendant and disagree as to which act placed Natalie in physical danger, and because the record fails to establish that the jury believed beyond a reasonable doubt that both of defendant's acts endangered Natalie, we cannot conclude that the failure to give an unanimity instruction was harmless. (Thompson, supra, 36 Cal.App.4th at p. 853.) We reverse defendant's conviction on that count.
E. Count 2 May Be Retried Because the Initial Verdict Was Supported by Substantial Evidence
Although we have determined the conviction on the child endangerment charge as to Natalie (count 2) must be reversed for failure to give an unanimity instruction, we nevertheless must address defendant's challenge to the sufficiency of the evidence to support the charge, because a finding of legal insufficiency would bar any retrial. (Burks v. United States (1978) 437 U.S. 1, 18 ["the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient"]; People v. Lewis (2021) 72 Cal.App.5th 1, 18, rev. granted Feb. 23, 2022, S272627 [although Double Jeopardy Clause bars a retrial where evidence at first trial was insufficient to sustain the verdict, government may otherwise retry a defendant who succeeds in getting conviction set aside due to an error in the trial proceedings].)
In reviewing a judgment for sufficiency of the evidence, a court must review the record in the light most favorable to the judgment to determine if there is substantial evidence from which any rational trier of fact could find each element of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Staten (2000) 24 Cal.4th 434, 460.) Substantial evidence is evidence that is "'reasonable in nature, credible, and of solid value'" (People v. Johnson (1980) 26 Cal.3d 557, 576), and includes circumstantial evidence and reasonable inferences based on that evidence. (In re James D. (1981) 116 Cal.App.3d 810, 813-814.) In reviewing a sufficiency claim, we "presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009) 46 Cal.4th 913, 919.)
Substantial evidence supported the verdict on the child endangerment charge as to Natalie based on defendant's act of leaving a loaded shotgun on the ground. It is axiomatic that defendant's conduct in leaving seven-year-old Natalie unmonitored and with easy access to a loaded shotgun he had just fired created a "circumstance[] or condition[] likely to produce great bodily harm" to the child. (§ 273a, subd. (a); see People v. Hansen (1997) 59 Cal.App.4th 473, 479-480 ["Storing loaded firearms in a home occupied by children without denying the children access to the weapons creates a potential peril under the statute"]; People v. Wilson (2006) 138 Cal.App.4th 1197, 1204 [use of the term "likely" in section 273a "means a substantial danger, i.e., a serious and well-founded risk"]; see also People v. Salazar (2016) 63 Cal.4th 214, 242 [appellate courts must accept logical inferences that the jury might have drawn from the evidence].) Because we do not reverse for insufficiency of the evidence, count 2 may be retried, if the People so elect.
As discussed in section 2.C of the Discussion, supra, the Attorney General concedes that "the evidence is insufficient to support the firearm use enhancement as to count 2." If count 2 is retried, the People may not allege a concomitant gun use enhancement pursuant to section 12022.5, subdivision (a). Further, given the concession that Natalie was not endangered by defendant's discharge of the weapon (fairly construed as a concession of insufficient evidence supporting that theory), the People would also be barred from retrying count 2 under that theory.
3. Presentence Custody Credit
Defendant contends, and the Attorney General concedes, that he is entitled to presentence custody credits for all actual days he spent in custody. We accept the concession.
Defendant was in custody from December 17, 2012, through sentencing on March 13, 2020, for a total of 2,644 actual days. The trial court awarded defendant presentence custody credit for the determinate sentences imposed on counts 2 through 4, but it did not award defendant any presentence credit on his indeterminate term on count 1. The court delegated that authority and determination to the California Department of Corrections.
The court erred in this respect. (See § 2900.5, subds. (a), (d) [trial court must determine and credit "the total number of days" that the defendant "has been in custody" when imposing sentence].) Sentences that fail to award legally mandated credits are unauthorized and may be corrected whenever discovered. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) The trial court is directed to prepare amended abstracts of judgment to reflect a total of 2,644 of custody credit as to every count on which defendant was convicted.
DISPOSITION
Defendant's conviction on count 2 is reversed; the convictions on all other counts are affirmed. On remand, the People may, if they so choose, retry defendant on count 2, within the time limit prescribed by law. If the People choose not to retry defendant on count 2, the superior court is directed to resentence defendant on the remaining counts and to impose an appropriate disposition with the aggregate prison term not to exceed that originally imposed. (People v. Burbine (2003) 106 Cal.App.4th 1250, 12581259.) If the People decide to retry defendant on count 2 and he is convicted as charged, the court shall resentence him according to applicable law.
Upon determination as to the status of count 2 (no retrial, or retrial and final resolution), the clerk of the superior court shall prepare amended abstracts of judgment reflecting appropriate modifications, and to reflect 2,644 days of custody credit as to each count. The clerk shall then forward the modified abstracts of judgment to the California Department of Corrections and Rehabilitation.
As so modified, the judgment is affirmed.
We concur: COLLINS, Acting P. J., CURREY, J.
[*]Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.