Summary
finding no error where trial court did not instruct on voluntary manslaughter
Summary of this case from People v. GuerreroOpinion
No. D047879.
May 23, 2007. [CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of Discussion parts B., C., D., E., F., G., H. and I.
Appeal from the Superior Court of San Diego County, No. SCSI83269, Raymond Edwards, Jr., Judge.
Charles M. Sevilla for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Jorge Diego Oropeza was convicted of first degree murder, attempted first degree murder, shooting at an inhabited vehicle and discharging a firearm from a vehicle. It was found true as to the convictions for murder and the shooting at and from a vehicle Oropeza discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (d). With regard to the attempted murder conviction, it was found true Oropeza discharged a firearm within the meaning of section 12022.53, subdivision (c). It was also found true, as to the convictions for attempted murder and shooting at an inhabited vehicle, he used a firearm within the meaning of section 12022.5, subdivision (a), and it was found true he used a firearm within the meaning of section 12022.5, subdivision (a)(1), as to the conviction for murder.
All further statutory references are to the Penal Code unless otherwise specified.
Oropeza was sentenced to a prison term of 80 years to life. He appeals, arguing the trial court erred in refusing to give various requested instructions, erred with regard to various evidentiary rulings and erred in imposing some of the firearm discharge enhancements. He also contends the prosecutor engaged in misconduct during argument to the jury.
FACTS
A. Prosecution Case
1. Crimes
In the early morning of March 6, 2004, Eglen Coss, his cousin Moraima Coss (Moraima) and her boyfriend Noah Johnson were driving home on Interstate 805 after an evening in Tijuana. Coss was driving, Johnson was in the passenger seat and Moraima was sitting between them. As they drove north, a confrontation occurred between Coss and the occupants of a silver Ford F-150 pickup truck who apparently believed Coss had "cut them off." At first there was yelling and an exchange of offensive hand gestures. Then as the vehicles drove side by side, with a lane between the two vehicles, a person wearing a red shirt and sitting in the front passenger seat of the Ford stuck his arm out the window and fired a handgun. The bullet passed through Coss's arm, striking Moraima in the head and killing her. Coss stopped to summon help. The Ford pickup truck drove away.
2. Investigation
About 11:00 p.m. on March 7, 2004, Coss was shown a photographic lineup containing a photograph of appellant. Coss identified a person other than appellant as the shooter. Two days later, Coss was shown a second lineup again containing a photograph of appellant. Coss picked out appellant's picture, stating: "Looks mostly like number three." Coss was at appellant's arraignment and told a detective appellant was the man who fired the shot.
On the evening of March 7, 2004, Johnson was shown a photographic lineup containing appellant's picture. He identified someone other than appellant as the shooter. Two days later he was shown a second photographic lineup again containing appellant's photograph. He stated two of the persons looked like the shooter. Asked to pick one, he picked the photograph of appellant.
Jose Lopez, who as part of a plea bargain pled guilty to voluntary manslaughter regarding the death of Moraima, testified that in the early morning of March 7, 2004, he and appellant were returning from Tijuana in a silver Ford F-150 pickup truck. Because appellant was drunk, Lopez drove. Lopez stated that after entering the United States they were "cut off" by another vehicle. The trucks continued up the freeway with the occupants exchanging abusive words and gestures. Eventually, appellant drew a gun and fired a shot. Lopez drove away.
At trial, Lopez, for the first time, stated a third man, Andrew Anguiano, was in the truck with him and appellant at the time of the shooting. The prosecution was unaware until trial of this third man. Anguiano testified at trial that the night of the shooting he was returning from Tijuana with Lopez and appellant. The F-150 truck has a backseat and Anguiano was sitting in it. Anguiano testified concerning the confrontation that morning and stated appellant fired the shot.
Both Coss and Johnson identified appellant at trial as the shooter.
B. Defense Case
The defense offered no Witnesses. Appellant argued there was a reasonable doubt concerning the identity of the shooter. Appellant further argued the persons in the truck with him, Lopez and Anguiano, had obvious motives to claim appellant fired the fatal shot. Appellant argued Coss and Johnson could reasonably, under the circumstances, misperceive who fired the shot.
DISCUSSION
A. Instruction on Defenses and Lesser Included Offenses
Appellant argues the trial court erred when it denied his request to instruct on self-defense and on the lesser included offense of voluntary manslaughter based both on heat of passion and imperfect self-defense.
1. Law
The trial court must instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. This obligation requires instructions on lesser included offenses if there is substantial evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. ( People v. Rogers (2006) 39 Cal.4th 826, 866-867 [ 48 Cal.Rptr.3d 1, 141 P.3d 135].) The obligation also applies, with reservations not applicable here, to instruction on defenses when they are supported by substantial evidence. ( People v. Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rptr.2d 569, 906 P.2d 531].)
In this context substantial evidence means evidence which is sufficient to deserve consideration by the jury and from which a jury composed of reasonable persons could conclude the particular facts underlying the instruction existed. The trial court is not required to present theories the jury could not reasonably find to exist. ( People v. Wickersham (1982) 32 Cal.3d 307, 324 [ 185 Cal.Rptr. 436, 650 P.2d 311]; People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12 [ 160 Cal.Rptr. 84, 603 P.2d 1].)
On appeal, we review independently the question whether the trial court failed to instruct on defenses and lesser included offenses. (See, e.g., People v. Waidla (2000) 22 Cal.4th 690, 739 [ 94 Cal.Rptr.2d 396, 996 P.2d 46].)
2. Background
While not using the term self-defense, it was appellant's position even before trial Coss's aggressive and provocative driving played a significant part in the "road rage incident" and the eventual shooting.
At trial several versions of the events immediately preceding the shooting were given by witnesses. Coss stated he first saw the Lopez truck as they got on the freeway near the border. It appeared Lopez wanted to race and Coss gestured to him that he was not interested. Coss stated that after the initial encounter he was driving in the fast lane of the 805 Freeway when appellant's truck approached rapidly from behind in the same lane. When Lopez began "tailgating" him, Coss moved over to get out of the way. As appellant's truck came beside them, Coss moved over another lane. Appellant, in the front passenger seat, leaned outside the truck and gestured at him. Coss replied with an offensive gesture. This continued for a time and eventually appellant placed a gun out the window and fired. Coss stated that as the gesturing was occurring, he was driving normally in his lane.
Johnson stated that while they were in the fast lane on the 805 Freeway, the Ford truck approached rapidly from the rear. Coss moved over two lanes. As he did so, the passenger and the driver in the Ford made obscene gestures. Coss and Johnson made rude gestures in response. The passenger of the truck then fired at them. Johnson stated that neither truck "brake checked" the other. In brake checking, the driver of a car followed by a second car taps the brakes, thus requiring the following car to brake. Johnson also stated that once the trucks were driving with a lane between them, they did not move out of the lanes until after the shot was fired.
Anguiano, the second passenger in the truck with appellant, testified that on their way home from Tijuana, the men got into a confrontation with the occupants of another truck. Anguiano stated after entering the 805 Freeway, the two trucks drove fast side by side, "showing off" to each other. Anguiano testified it was the driver of the other truck that started making rude hand gestures. Appellant then replied with rude hand gestures. The confrontation ended when appellant fired a shot. Anguiano stated that when the shot was fired there was a lane between the two vehicles. He stated that during the confrontation the other truck did not swerve at them or "throw itself at them."
Lopez gave inconsistent accounts of the incident. On direct examination Lopez testified that as they were entering the freeway near the border they were cut off by Coss's truck. The driver of that truck said something to appellant and appellant replied. At the merge of the 5 and 805 Freeways, Lopez started to veer toward the 5 Freeway to avoid a confrontation with Coss's truck that appeared to be going to the 805 Freeway. Appellant asked Lopez why he was going to the 5 Freeway when they lived off the 805 Freeway. Lopez changed his mind and proceeded to the 805 Freeway. Lopez stated the other truck pulled away but he caught up to it. He testified both trucks were in the No. two lane, i.e., the second lane from the far left or "fast lane." Lopez stated that when he approached within less than a car length of the other truck, it "brake checked" him. Lopez said he then moved into the "fast lane." Lopez stated the other truck sped up and the two raced ahead. The other truck then moved into the No. three lane and the two trucks went up the freeway with appellant and the driver of the other truck exchanging words. Lopez stated the trucks maneuvered, changing lanes and brake checking each other. Lopez testified that when the shot was fired the trucks were "side by side." It is unclear from Lopez's testimony in which lanes the trucks were traveling. Lopez testified that at the moment the shot was fired the other truck was not swerving into or brake checking them. Lopez did testify, however, that at times the other truck swerved at them.
During cross-examination the defense played the recording of a police interview with Lopez two days after the shooting. Lopez told the officers that after they returned from Tijuana another truck tried to run them off the road. He thought the occupants of the other truck were "talking shit" to appellant. Lopez told the officers the other truck swerved at them. He stated he "guessed" the driver of the other truck got close, appellant "snapped" and at about that time Lopez heard a bang. Lopez stated the trucks raced and jockeyed positions. They maneuvered and brake checked each other. The trucks never touched. The other truck did swerve at them.
The defense also played the recording of a police interview of Lopez about two weeks after the shooting. Lopez again stated that on returning from Tijuana, Coss was "showing off." Lopez paid no attention and eventually Coss cut him off. He again related that the vehicles raced, maneuvered around each other and brake checked each other. He stated the other truck swerved at them. Lopez stated appellant and the driver of the other truck began arguing and it was then that appellant fired.
Lopez stated that at the merge of the 5 and 805 Freeways he first decided to go off on the 5 Freeway to avoid any confrontation with the other truck. Appellant reminded him they did not live in that direction. Lopez decided he did not have to back down and veered back onto the 805 Freeway. Lopez stated that as he and the other truck went up the freeway they were cutting each other off. The two at times moved close to each other and brake checked each other. At one point the other truck swerved into his truck and appellant and the driver of the other truck began talking to each other. The trucks began swerving at each other and it was at that point appellant fired.
Lopez told the officers that during the racing appellant was encouraging Lopez to go faster and was saying, "Fuck them." As the trucks were next to each other the other truck moved over towards them and Lopez had to move out of the way. Appellant and the driver of the truck were yelling at each other. The other truck swerved at them. As Lopez pulled over slightly onto the shoulder, appellant took out the gun. Appellant fired the gun and then said to Lopez, "Go home."
After the tapes were played, Lopez testified on cross-examination that after the other truck cut him off he accelerated to catch up with it. After he was cut off, appellant told him to go faster and catch up to the other truck. Lopez came up to within a car's length of the other truck. A series of brake checks then occurred with one driver getting in front of the other truck and then tapping his brakes. Lopez stated that on several occasions the other truck swerved at his truck. As it did so, Lopez was afraid there might be a collision and on several occasions he had to take evasive maneuvers. He stated the swerving was "scary." Lopez stated that as the swerving and evasive maneuvers were occurring, appellant was hanging out the window, making rude gestures at the other truck and exchanging words with the driver. Lopez stated that it was when the other truck swerved at them that appellant fired a shot.
Lopez was charged with murder arising out of the shooting. He entered a plea to a lesser charge. It was pointed out to Lopez he stated in his change of plea form that at the time the shot was fired, the other truck was not being driven in a manner that threatened Lopez or appellant.
Lopez then testified the shot was not fired during one of the times when the other truck swerved at them. It was fired later while the two trucks were next to each other and appellant and the driver of the other truck were arguing.
Appellant did not testify.
Defense counsel requested instructions on self-defense and defense of others. He noted Lopez testified the other truck swerved at them four times. Counsel noted if Lopez's testimony were believed, it was possible the shooter fired in self-defense or at least in imperfect self-defense. The trial court stated appellant's defense was that he did not fire the shot. The court stated, therefore, there was no evidence appellant took any action in response to the claimed swerving of the other truck or that either Lopez or Anguiano testified it was necessary to shoot at the other truck. The trial court denied the request to instruct on the defense of self-defense or voluntary manslaughter based on imperfect self-defense.
Appellant also requested instructions on voluntary manslaughter based on sudden quarrel or heat of passion. The trial court denied the request, stating there was no substantial evidence that would support a finding of voluntary manslaughter on that theory.
3. Discussion
a. Self-defense and Imperfect Self-defense
Appellant argues the trial court erred in denying his request to instruct on self-defense and on voluntary manslaughter based on a theory of imperfect self-defense. It did not.
"The subjective elements of self-defense and imperfect self-defense are identical. Under each theory, the appellant must actually believe in the need to defend himself against imminent peril to life or great bodily injury. To require instruction on either theory, there must be evidence from which the jury could find that appellant actually had such a belief." ( People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262 [115 Cal.Rptr.2d 229].)
Appellant did not testify and made no out-of-court comments indicating that when he fired, he believed it necessary to defend his life or to avoid great bodily injury. It is the ease that the "substantial evidence of a defendant's state of mind may be found in the testimony of witnesses other than a defendant." ( People v. Hill (2005) 131 Cal.App.4th 1089, 1102 [ 31 Cal.Rptr.3d 891]; see People v. De Leon (1992) 10 Cal.App.4th 815, 824 [ 12 Cal.Rptr.2d 825].) Here, however, no witness testified appellant fired out of fear or testified appellant appeared fearful. No witness to the incident, not even Lopez in any of his various versions of the incident, stated they believed deadly force was necessary to protect them. Lopez went no farther than to state that the mutual acts of "road rage" in which he was admittedly engaged were "scary." The only substantial evidence of appellant's state of mind is found in testimony concerning his aggressive and provocative behavior. It suggests only that he fired the shot as an act of aggression. (See generally People v. Hill, supra, 131 Cal.App.4th at p. 1102.)
b. Voluntary Manslaughter
Appellant argues the trial court erred when it refused to instruct on voluntary manslaughter based on sudden quarrel and heat of passion. Appellant notes there was evidence the incident began when Coss's truck cut off the truck in which appellant was a passenger, that Coss continued to provoke appellant with his aggressive driving, his yelling and his obscene gestures. Appellant argues he clearly acted in the heat of passion; and because there was adequate provocation by Coss and those in his truck, the trial court was required to instruct concerning the lesser included offense of voluntary manslaughter based on sudden quarrel or heat of passion.
A defendant commits voluntary manslaughter and not murder when he or she intentionally and unlawfully kills "upon a sudden quarrel or heat of passion." (§ 192, subd. (a).) Voluntary manslaughter has both a subjective and an objective requirement. The defendant must kill while actually in the heat of passion. That heat of passion, however, must be aroused by sufficient provocation judged objectively. "`[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,' because `no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]" ( People v. Steele (2002) 27 Cal.4th 1230, 1252-1253 [ 120 Cal.Rptr.2d 432, 47 P.3d 225].)
Because the test of sufficient provocation is an objective one based on a reasonable person standard, the fact the defendant is intoxicated or suffers from a mental abnormality or has particular susceptibilities to events is irrelevant in determining whether the claimed provocation was sufficient. ( People v. Steele, supra, 27 Cal.4th at p. 1253.)
A defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in the heat of passion. The claim of provocation cannot be based on events for which the defendant is culpably responsible. ( People v. Johnston (2003) 113 Cal.App.4th 1299, 1312-1313 [ 7 Cal.Rptr.3d 161]; People v. Hoover (1930) 107 Cal.App. 635 [ 290 P. 493].)
As was stated in People v. Hurtado (1883) 63 Cal. 288, 292: "In an abstract sense anger is never reasonable, but the law, in consideration of human weakness, makes the offense manslaughter when it is committed under the influence of passion caused by an insult or provocation sufficient to excite an irresistible passion in a reasonable person; one of ordinary self-control."
There is certainly evidence appellant acted in the heat of passion. The question is whether the claimed provocation for his impassioned state of mind was sufficient, i.e., the provocation was sufficient to arouse such passion in an ordinarily reasonable person and the provocation was not based on events for which appellant was responsible. Viewed in a manner most favorable to appellant, this incident began when Coss intentionally cut off the truck in which appellant was riding. While an ordinarily reasonable person might be angered by the act, such a person would not pursue or encourage the driver of a vehicle in which he or she was a passenger to follow the offending vehicle at a high rate of speed and engage in highly aggressive driving and abusive personal behavior. Coss departed after cutting off Lopez. Had Lopez, with appellant's encouragement, not made extraordinary efforts to catch up to him and then engage in an alcohol-infused, ego-inspired act of mutual road rage, the shooting would never have occurred.
While appellant showed an abundance of human weakness, it was not of a type such that the law is willing to declare his acts less culpable. The trial court acted properly in not instructing the jury concerning voluntary manslaughter based on sudden quarrel or heat of passion.
B.-I. B. Playing of 911 Tape Appellant argues the trial court erred when it allowed the prosecutor to play twice to the jury a recording of the 911 call made by Johnson moments after the shooting. Appellant contends the recording had little or no relevance and was highly prejudicial. 1. Background By in limine motion appellant noted that on the 911 recording Johnson is heard screaming and often speaking in an anguished tone. Appellant argued much of the recording was irrelevant and was highly prejudicial. He asked that if the recording was admitted at all it be edited to eliminate the screams or that Johnson's statements during the call be read to the jury. The prosecutor argued she wished to admit the recording because it was "real life that happened back then." The prosecutor stated if the defense wanted background noise excised, then the defense could excise it. The prosecutor stated, however, she wanted the recording of Johnson's words played for the jury. After listening to the recording, the trial court noted in People v. Love (1960) 53 Cal.2d 843, 854-857, the court reversed based on the admission of the tape recording of the failing voice and groans of a murder victim and a photograph of the victim's face in death. The trial court distinguished Love, however, noting that here the voice on the recording was not that of the victim. The court concluded hearing the tape would not prejudice the jury. Defense counsel stated his opinion some of the background on the recording was the groans and cries of the murder victim. The trial court replied that it read the transcript of the recording as it listened, and nothing on the recording was discernable as the voice of the victim. The trial court denied the motion to exclude the recording During opening statement the prosecutor recounted the preliminary events leading to the shooting. When she had brought the story to the moment before the shot was fired, she stopped, passed out transcripts of the recording and stated: "And to best portray to you what happened that next minute, I am going to play for you the 911 tape. And on this tape, you're going to hear her boyfriend describe to you just within minutes of this shooting occur what he perceived and was going on with him." After the recording was played, during the prosecutor's opening statement, one of the alternate jurors asked to be relieved from service. She stated she did not know the case would be so "graphic." She stated the tape "threw [her] off." The juror explained that two weeks ago she had a miscarriage and "little things kind of set [her] off." She stated the crying on the tape was very hard to deal with and the photographs would be difficult as well. She stated she had a "rough" weekend as she remembered the tape. Both the prosecutor and defense counsel asked the alternate juror not be excused and the trial court required she remain on the case. The tape was again played and the jury was provided transcripts of it during Johnson's testimony. 2. Discussion All relevant evidence is admissible. (See Evid. Code, § 351.) The definition of relevant evidence is a broad one that includes evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; see People v. Scheid (1997) 16 Cal.4th 1, 13-18.) Here, the relevance of the recording of Johnson's 911 call is at most minimal. While it bridges the narrative gap between the shooting and the death of the victim, it does little to illuminate the crucial issues of identity and intent central to the case. Most of the recording deals with Johnson's attempt to get help for the victim. Relevant evidence should be excluded when it is more prejudicial than probative. (Evid. Code, § 352.) The decision to exclude relevant evidence on that basis lies within the broad discretion of the trial court. The trial court's exercise of that discretion will not be disturbed on appeal unless the probative value of the evidence is clearly outweighed by its prejudicial effect. ( People v. Heard (2003) 31 Cal.4th 946, 975-976.) We have listened to the recording and read the transcript of it. There is no doubt that doing so is an unpleasant experience. Still, while the anguish in Johnson's voice is clear, he is also remarkably composed given the events that had just occurred. There is background noise on the recording but its source and content is unclear. It does seem that another person is highly upset and may at times be screaming. Given the minimal relevance of the recording, a strong case can be made that the trial court abused its discretion in admitting it. We conclude, however, any such error was harmless. In People v. Love, supra, 53 Cal.2d at pages 854-857, a capital case, the trial court admitted on the issue of penalty a photograph of the murder victim's face in death and a recording of statements by her in extremis in which her voice was failing and she was groaning in pain. The court noted the prosecutor argued for the death penalty, citing the victim's suffering. At the time of the decision in Love, a jury had complete discretion in choosing between death and other penalties. The court concluded a defendant had a right to have the penalty decided rationally and dispassionately. It found admission of the photograph and the recording and the argument of the prosecutor denied that right and reversed the judgment of death. In this case the issue was not penalty and the jury was constrained in its consideration of the case by the need to find the particular elements of the charged offenses supported by evidence. While the recording of Johnson's 911 call is emotional, its emotional content would be expected. Murder cases most often have both strong emotional components and highly unpleasant evidence. It is unfortunate an alternate juror had an adverse reaction to the recording but that juror was admittedly particularly sensitive and did not say that hearing the tape would make it impossible for her to render a rational verdict. In our view, the recording, while of minimal relevance, is not unduly inflammatory and it is not reasonably probable its exclusion would have resulted in a more favorable result for appellant. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
See footnote, ante, page 73.
C. Defense Questions Concerning FaultAppellant argues the trial court erred when during the defense cross-examination of Coss it sustained the prosecutor's objection to questions concerning whether Coss believed the shooting was his fault. During cross-examination, defense counsel asked Coss: "Do you think your conduct in the way you drove and the way you acted with obscene gestures caused you, — for it to be your fault that this incident occurred?" The prosecutor objected on the grounds of relevance and a lack of foundation. The objection was sustained. Defense counsel then asked Coss if he had stated to a police officer that "[he] felt bad and [he] thought it was [his] fault?" The trial court reminded counsel an objection had already been sustained to the question. The court then told the jury not everything said to a police officer was admissible. Only relevant evidence was admissible and the court had sustained an objection to the question because it sought irrelevant evidence. Defense counsel's questions were poorly formed. We are not sure what the questions meant. What did "fault" mean in this context? What does "feeling bad" mean and what does it have do with the issues in the case? Was counsel asking for a legal opinion? Was counsel asking Coss to attribute degrees of culpability? Counsel asked extensive questions of Coss and other witnesses concerning Coss's driving and his aggressive behavior. What was relevant in the case was what Coss did and not what he thought about what he did. The trial court properly sustained the prosecutor's objection. D. Statement by Anguiano Appellant argues the trial court erred when it overruled his hearsay objection to testimony from Anguiano concerning statements allegedly made to him by "Ray," that he did not want Anguiano to say anything about the shooting and that appellant's father wanted to talk to Anguiano. Appellant contends admission of the testimony was error because it essentially and improperly attributed to appellant a consciousness of guilt. 1. Background During cross-examination, defense counsel questioned Anguiano concerning why he did not come forward and explain what occurred the morning of the shooting. Defense counsel suggested either Lopez or Anguiano was the shooter and they were attempting to place the blame on appellant. On re-direct examination, the prosecutor asked Anguiano if anyone other than law enforcement officials tried to talk to him about the shooting. Anguiano, equivocally, stated "no." When asked if he was sure about his answer, Anguiano stated "someone said they brought it up." When asked who he meant by "they," Anguiano said someone named "Ray." When asked how he knew Ray, Anguiano said through appellant. When the prosecutor asked what Ray said, defense counsel interposed a hearsay objection. The prosecutor stated Ray's statements to Anguiano were not offered for their truth but for the effect of the statements on Anguiano's decision not to come forward. The objection was overruled. Anguiano testified that about a month after the shooting, he was contacted by appellant's friend Ray. Ray told Anguiano not to say anything, that he wanted to talk to Anguiano again and that appellant's father wanted to talk to Anguiano. Anguiano testified he did not meet with the men. He stated he was not afraid to meet with them. He stated his reason for not coming forward was not that he wished to protect Lopez or appellant, but that he did not want to be labeled a "snitch" or a "rat." 2. Discussion Anguiano was an important, percipient witness to the shooting. Given that he did not contact the police, questions existed concerning his credibility. It was appropriate both parties explore why he had not come forward. While Anguiano denied Ray's enjoiner not to talk had any affect on his decision, neither the prosecutor nor the jury was required to accept that answer as the truth. The trial court properly denied appellant's hearsay objection to the testimony. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369.) In any event, the prosecutor's relatively short exploration of Anguiano's conversation with Ray, while relevant, ultimately added little to the case and it was not prejudicial. No one could reasonably attribute any consciousness of guilt to appellant based on the uncertain meaning in Ray's suggestion Anguiano say nothing or appellant's father wanted to talk to him. E. Torres's Statement Appellant argues the trial court erred when it admitted the following statement made by his sister Judy Torres at the time of his arrest: "Remember, don't say anything." Appellant contends the statement was both irrelevant and hearsay. 1. Background By in limine motion the prosecutor sought to admit, nominally for the purpose of showing appellant's consciousness of guilt, Torres's statement to him at the time of his arrest: "Remember, don't say anything" Defense counsel objected, saying that at the time the statement was made he had been retained and in his opinion the statement was nothing more than Torres's reminder to appellant of counsel's advice not to talk unless he was present. The trial court noted appellant had a right to remain silent and asked how being reminded of that showed a consciousness of guilt. The prosecutor stated Torres's statement showed a bias towards her brother. Apparently, admission of the statement was not offered to show a consciousness of guilt, but rather to attack Torres's credibility. The trial court stated Torres had a limited role in the case. She rented the truck appellant took to Mexico the night of the shooting. The prosecutor agreed. She argued, however, Torres first told the police she rented the truck for her brother and then later stated she rented it so she and her husband could go to Mexico. The prosecutor stated it would offer her statement to appellant reminding him not to talk as part of a number of statements and actions by Torres showing her bias for appellant, her brother. Defense counsel stated Torres had not changed her story to the police concerning why she rented the truck, that she had on the later occasion simply given a more complete answer. The trial court stated that was simply counsel's interpretation. The court stated that Torres's statement reminding appellant not to say anything could be taken as showing a bias in his favor and might suggest her later comments to the police concerning why she rented the truck was a fabrication in an attempt to help him. The court stated Torres's reminder to appellant not to say anything would be admitted. During her testimony at trial, Torres denied reminding appellant not to say anything. She testified she believed what she told appellant was: "Just wait until Tom gets there." Apparently, Torres was referring to counsel. 2. Discussion Because trial lawyers have great responsibilities and a difficult task in which every small advantage is sought, they may spend great energy on matters that in the cold light of post-trial retrospection seem next to meaningless. This is one of those situations. Torres's bias was obvious. She was appellant's sister. Her reminder to appellant to say nothing was as easily explained as a reminder of counsel's sound advice as it was mindless obstinacy. In any event, she had very little to add to the case for or against appellant. Whether or not the trial court erred in admitting the subject statement, it was harmless.
F. Instruction on Nonprosecution of Other PersonsAppellant argues the trial court erred when it instructed the jury in the terms of CALJIC No. 2.11.5. That instruction tells the jury evidence was offered indicating a person other than the defendant may have been involved in the crime. The instruction cautions there may be many reasons why that person is not on trial and the jurors are not to discuss why the other person is not being prosecuted. Appellant notes the instruction should not be given when the nonprosecuted participant testifies because the jury is entitled to consider the lack of prosecution in assessing the witnesses' credibility. ( People v. Williams (1997) 16 Cal.4th 153, 226-227.) Appellant notes in this case the jury was instructed Lopez was an accomplice as a matter of law and was aware he pled guilty to manslaughter based the shooting. Appellant argues, given those facts and instruction in the terms of CALJIC No. 2.11.5, the jury would have believed it could not use the fact of appellant's plea bargain in judging his credibility. The trial court erred in instructing in the terms of CALJIC No. 2.11.5. That error was harmless. The jury was told it could consider anything that in reason has a tendency to prove or disprove the truthfulness of a witness's testimony, including the existence of any bias or interest the witness might have. The jury was told it was to distrust the testimony of an accomplice and Lopez was an accomplice as a matter of law. Lopez was impeached in a number of ways, including with his plea bargain. The implications of that plea bargain on Lopez's credibility were so patent and meaningful, no juror would have believed CALJIC No. 2.11.5 meant they could not use it in assessing his credibility. G. Prosecutorial Error Appellant cites comments by the prosecutor during examination, argument and rebuttal he argues were prosecutorial error. Improper remarks by a prosecutor can so infect the trial they deny the defendant due process. ( Darden v. Wainwright (1986) 477 U.S. 168, 181.) A prosecutor, however, is entitled to argue the case forcefully. ( People v. Bandhauer (1967) 66 Cal.2d 524, 529.) In order to preserve a claim of prosecutorial error in argument, there must be a timely objection and request for a curative admonition. In the absence of such an objection, the claim of error will only be considered if the admonition would not have cured the harm. ( People v. Earp (1999) 20 Cal.4th 826, 858.) It is true a failure to object to improper argument may amount to the ineffective assistance of counsel. However, a failure to objection during argument seldom establishes ineffectiveness. This is so because the decision to object during argument is a tactical one that involves many considerations and because such tactical decisions are accorded substantial deference. To establish ineffective assistance, a defendant must show counsel's actions fell below an objective standard of reasonableness under prevailing professional norms. ( People v. Rodriguez (1994) 8 Cal.4th 1060, 1121.) 1. Victim's Testimony The prosecutor ended her argument by stating: "In murder trials, you never get to hear from the most important witness." The prosecutor noted the jury had heard from other witnesses but not from the murder victim. The prosecutor stated: "You didn't get to hear from Moraima; how she felt the night the events were in Mexico. She did not get to tell you what she was feeling and what she saw during that two and a half miles to her murder, and she didn't get to tell you how she felt when she saw that firearm defendant was holding and pointed at her cousin's head. Noah Johnson and Coss told you about those events and how they felt. Moraima did not get that opportunity. Justice for Moraima is in your hands." Appellant argues this was an improper reference to matters not in evidence. Appellant suggests the prosecutor was telling the jury Moraima would have testified she saw appellant fire the shot. Additionally, appellant contends the prosecutor's argument improperly asked the jury to view the crime through the eyes of the victim. (See People v. Stansbury (1993) 4 Cal.4th 1017, 1057.) There was no objection to the argument. The argument was innocuous. The prosecutor was not reminding the jury of the victim's suffering. The prosecutor was not suggesting Moraima would have testified appellant fired the shot that killed her. While there was some emotional content to the prosecutor's closing words, defense counsel could reasonably conclude it better not to object but rather simply move on. 2. Most Culpable Person During argument, the prosecutor discussed the testimony of Lopez. She told the jury Lopez had lied repeatedly to the police and even lied during his trial testimony. The prosecutor reminded the jury of Lopez's plea bargain and his responsibility for the crimes. The prosecutor then made this statement which appellant argues was improper: "You may not like Jose Lopez, you may not like the deal that the district attorney's office gave him when he made that change of plea form, but the district attorney's office wants to present to the members of this jury with every piece of evidence we had when we started our jury trial to hold the person most accountable for Moraima' death, and that person is the defendant." Appellant argues the prosecutor's comments suggest the jury should consider as relevant the prosecutor's office predetermination of the true guilty party. There was no objection. The prosecutor was not suggesting to the jurors they should convict appellant because the district attorney's office had decided he was the shooter. The prosecutor's institutional position appellant was the shooter and the most culpable participant in the crime was hardly a secret. The prosecutor was simply explaining why a deal was made with Lopez. In any event, whatever the ultimate propriety of the remarks, they were not highly offensive and defense counsel could reasonably decide not to object to them. 3. "We Know" Comments Near the beginning of her argument, the prosecutor discussed the element of intent to kill. She stated: "How do we know he intended to kill?" She then discussed the factors she believed showed that intent. When the prosecutor again stated: "How we know he had the intent to kill," the trial court asked counsel to approach the bench. The trial court told the prosecutor that saying "How we know" was equivalent to stating "I believe." The court stated this in turn implied the prosecutor's belief was based on information she had that was not before the jury. The prosecutor stated she understood. At first the prosecutor corrected the form of her comments. However, she later lapsed into the same manner of address and stated: "How do we know the defendant is the shooter based on the evidence?" She then added "based on the evidence that you heard." The trial court then stated to the jury that when the prosecutor used the phrase "How do we know," she was not suggesting the prosecutor or the police had information the jury did not have. The court explained the prosecutor was using the collective "we" to refer to those people who heard the evidence presented at trial. Soon after, however, the prosecutor again prefaced a statement with the same collective "How do we know." Defense counsel objected, the prosecutor apologized and the court reminded the jury of its admonition concerning the phrase. The prosecutor on several more occasions used the same "How do we know" as a preface to a comment. There is no doubt that strictly speaking the "we" in the phrase "how do we know" is ambiguous and could be taken not to mean those who heard the evidence presented at trial but those who had special knowledge about the case like the prosecutor or the police. It would have been better had the prosecutor not used the phrase and the trial court acted properly in attempting to end the practice. Still, there was no direct suggestion the prosecutor knew something the jury did not, or that the word "we" referred to persons other than those who heard the evidence. If there was any question in that regard, the trial court's admonition ended the ambiguity and made clear the prosecutor's use of the word "we" referred only to those people who heard the evidence presented at trial. 4. Belief in Appellant's Guilt During argument, the prosecutor discussed the testimony of Andrew Anguiano. She commented on the various reasons he had not come forward before trial. She noted Anguiano's testimony that he had been contacted by Ray who told Anguiano that he and appellant's father wanted to meet with him. The prosecutor noted his testimony that he would have met with them but they stopped calling. She then stated: "The inference that can be made there is that they stopped calling because they knew the truth, the defendant was the shooter." There was no objection. Appellant argues the prosecutor's comment suggested with no evidentiary support his own father believed he was guilty. We agree. There was no evidence from which an inference could reasonably be drawn concerning appellant's father's opinion about his guilt. The comment by the prosecutor was improper. However, no objection was made. Counsel could reasonably conclude ultimately any prejudice arising from the statement was minimal and objecting to it would simply highlight the comment for the jury. In any event, the comment was only the smallest part of a lengthy trial with many factual issues and could not have affected the outcome. 5. Misstatement of Evidence Appellant argues the prosecutor during her examination of Anguiano repeatedly misstated his testimony concerning his observations of a gun the night of the shooting. During direct examination, Anguiano testified he heard the gunshot, then for a second he saw the gun appellant was holding in his hand. Later, during that examination, the prosecutor asked Anguiano: "Do you remember where the other truck was when the defendant pointed and fired that gun at the other truck?" When the prosecutor prefaced another question with the words "When the defendant pointed the gun and fired it," defense counsel objected the question assumed facts not in evidence, i.e., that Anguiano pointed the gun. The trial court overruled the objection. Appellant argues the prosecutor consistently misstated Anguiano's testimony by stating he saw the gun before it was fired, not after. He contends the prosecutor was essentially testifying. He states the "rapidity of the shot was important to show appellant's lack of premeditation and deliberation" and the prosecutor's misstatements of Anguiano's testimony undermined any defense in that regard. The prosecutor technically misstated Anguiano's testimony. Anguiano did not testify he saw appellant point the gun and then fire. He stated he heard a shot and then saw the gun in appellant's hand. What the prosecutor was stating was a reasonable inference from Anguiano's testimony, i.e., he pointed the gun and then fired. He, however, did not testify he saw the gun pointed. At the time the prosecutor was asking the subject questions, she was not probing the issues of intent or state of mind. She was dealing with the position of the trucks when the shot was fired and merely repeated, if imperfectly, Anguiano's testimony to orient him to the moment about which she was asking. The jury was instructed the comments of counsel were not evidence and it was not to assume true any insinuation suggested by a question. The prosecutor's error was a minor one and did appellant no harm. 6. Firearm Evidence Appellant notes the murder weapon was never found. He argues the prosecutor committed error when at trial she demonstrated with a similar handgun and then as part of her argument that the murder was premeditated attributed that firearm's characteristic to the gun used in the shooting. During trial, defense counsel objected to the prosecutor showing the jury a photograph of a gun that was not the murder weapon. The prosecutor stated the photograph would merely be "demonstrative." The trial court overruled the objection. Both Lopez and Anguiano were shown the photograph and testified the gun depicted, while not the gun used, was similar to the one appellant used in the shooting. Lopez described the gun as a semi-automatic. Later, the prosecutor asked the trial court's permission for a firearms expert to bring a 9mm, semi-automatic Baretta handgun into the courtroom to help explain how such a weapon is fired. Defense counsel objected, noting the murder weapon was never found and there was no identification of the exact gun used. Counsel argued showing the gun to the jury would imply it was a duplicate of the murder weapon. The trial court overruled the objection, saying there was testimony the murder weapon was a semiautomatic handgun and it was clear the weapon to be shown was not the actual firearm. The court required a gunlock be kept on the firearm at all times it was in the courtroom. The prosecutor called a firearms expert to testify concerning the characteristics of various guns. The expert explained the operation of both revolvers and semi-automatic handguns. After doing so the expert displayed a semi-automatic Baretta firearm he stated he brought to court. The expert used the weapon to demonstrate his explanation of the operation of a semiautomatic firearm. In questioning the expert, the prosecutor referred to the demonstration weapon as a "replica." The expert told the jury the weapon could be fired either in single or double action, i.e., the hammer could be cocked and the gun fired with a pull of the trigger or the trigger could be pulled to both cock and fire the gun in one sequence. The expert stated that once fired, the gun would set itself in the single action mode. He stated the gun weighed approximately two pounds. The prosecutor asked how much force was required to pull the trigger. The expert stated that on "that particular gun" a pull of 10 pounds was required to fire it double action and approximately five pounds of pull to fire it in single action. Noting he was talking about the Baretta handgun he was holding, the expert explained the safety mechanism built into the gun. The expert noted for example an external safety on the gun that had to be manually moved before the gun could be fired. The prosecutor asked and the expert went through the various steps required before the gun could be fired, i.e., loading with a magazine, pulling the slide to the rear to place a cartridge in the chamber and the external safety has to be placed in the firing position. During argument, the prosecutor explained the concept of implied malice. She noted the firearms expert testimony concerning how guns work. She argued that holding and pointing a loaded gun at a person is an act dangerous to human life and doing so is an act of implied malice. Later, the prosecutor explained the concept of express malice, i.e., the intent to kill. She noted intent is shown by the circumstances surrounding the act. In arguing appellant intended to kill, she noted he used a highly deadly weapon. The prosecutor stated: "[The firearms] expert told you there's four safety mechanisms that have to be triggered to go through to even get this deadly weapon to fire. The means used tells us this is a deadly weapon; this is used to kill." The prosecutor also explained the concepts of premeditation and deliberation as a means of finding appellant guilty of first degree murder. Again, the prosecutor noted those states of mind by the circumstances surrounding the shooting. She argued premeditation and deliberation were shown when appellant retrieved the loaded gun, aimed it at Coss's truck and pulled the trigger. The prosecutor stated: "You heard [the firearms expert] talk about the trigger pull, how it's not just a one little snap or a one little motion. He talked about the pounds it takes in a trigger pull." There was no objection to any of the prosecutor's comments concerning the gun. There was evidence from percipient witnesses the murder weapon was a semiautomatic firearm. There was no error by the trial court in admitting expert testimony concerning the general nature and generic operating features of such a class of weapons. It was improper, however, for the prosecutor to use the features and attributes of a particular demonstration weapon in support of an argument appellant acted with express malice or he premeditated and deliberated the shooting. There was no reason to believe the actual murder weapon had the same safety devices or that it required a trigger pull like that of the demonstration weapon. There was no objection, however, to the improper arguments and the issue is waived. Defense counsel was not ineffective in choosing not to object. Intent and state of mind, while elements of some of the charged offenses, were not central to appellant's defense. The defense was there was reasonable doubt concerning who fired the shot. There was certainly much stronger evidence than the safety features or trigger pull of the murder weapon suggesting that whoever fired the shot did so with the intent to kill and premeditated and deliberated the act. Defense counsel could reasonably conclude the prosecutor's brief and not particularly damaging references to the attributes of the demonstration firearm did not warrant an objection. H. Firearm Enhancements Appellant argues the section 12022.53, subdivision (d), discharge of a firearm causing great bodily injury or death enhancements imposed as to counts 3, shooting at an occupied vehicle, and count 5, discharge of a firearm from a motor vehicle, must be stricken for two reasons. First, because the evidence was insufficient to support them. Appellant specifically argues the victim to which the section 12022.53, subdivision (d), allegations referred in counts 3 and 5 was Coss. Appellant contends Coss's shoulder wound was, as a matter of law, insufficient to support a finding of great bodily injury finding. Second, appellant argues the jury's finding as to those enhancements was defective. 1. Background Section 12022.53, subdivision (c), provides an enhancement when in the commission of certain specified felonies the defendant discharges a firearm. Section 12022.53, subdivision (d), provides a more serious enhancement when the defendant in the commission of certain specified felonies discharges a firearm and proximately causes great bodily injury or death. In count 1 appellant was charged with the murder of Moraima. It was alleged that in the commission of the offense appellant discharged a firearm that proximately "caused great bodily injury and death to a person" within the meaning of section 12022.53, subdivision (d). (Italics added.) In count 2 appellant was charged with the attempted murder of Coss. It was alleged that during the commission of the offense appellant discharged a firearm within the meaning of section 12022.53, subdivision (c). The information did not allege a firearm discharge causing great bodily injury or death within the meaning of section 12022.53, subdivision (d). In count 3 appellant was charged with discharging a firearm at an occupied vehicle. As to that count it was alleged that in the commission of the offense appellant discharged a firearm that proximately "caused great bodily injury and death to a person" within the meaning of section 12022.53, subdivision (d). In count 5 appellant was charged with discharging a firearm from a vehicle. It was alleged that in the commission of the offense appellant discharged a firearm that proximately "caused great bodily injury and death to a person" within the meaning of section 12022.53, subdivision (d). The evidence concerning the gunshot wound to Coss's left shoulder was not extensive. He testified that after the shot was fired he "felt [his] arm burning real bad." Coss stated he was taken to a hospital and after about three hours he was released. He testified that the day after the shooting the pain in his shoulder kept him from sleeping. Coss testified that in the days after the shooting he returned to the hospital on several occasions for "checkups" for his wound. Three photographs of Coss's wound were admitted into evidence. After her testimony concerning the death of Moraima, the forensic pathologist was shown the photographs of Coss's wound and stated: "It looks to me like a grazed gunshot wound, specifically a tangential type of grazed gunshot wound. That means the bullet has literally just grazed the surface of the skin. It's done more than just sort of abraded, as it's more than just an abrasion. It has — it looks to me from the photographs it's gone a little bit into the tissue just beneath the skin, but it is sill a very superficial wound and the bullet essentially just skirted across the top of that gentleman's shoulder." he trial court instructed the jury as to the section 12022.53 allegations in the terms of CALJIC No. 17.19.5. In argument the prosecutor said little about the firearm discharge enhancements. At the end of her argument concerning the murder charge in count 1, she told the jury the allegation involved appellant discharging a gun and proximately causing great bodily injury or death to another person. The prosecutor argued: "The evidence shows us by the intent to kill and by the physical evidence of Moraima no longer being with us and Coss' injury on the [shoulder], the defendant is guilty of this allegation." The prosecutor's argument concerning the attempted murder charge in count 2 was very brief. As to the firearm discharge allegation, she simply stated it was the same allegation as made in the murder count. This statement was incorrect because the section 12022.53 allegation in count 1 referred to subdivision (d) while the allegation in count 2 referred to subdivision (c). The prosecutor's error was meaningless, however, because if the jury found the subdivision (d) allegation true as to count 1, it necessarily would find true the subdivision (c) allegation true as to count 2. As to shooting at an occupied vehicle charge in count 3, the prosecutor simply stated the firearm discharge allegation was the same as in counts 1 and 2. She made no mention of the firearm discharge allegation attached to count 5. Defense counsel argued there was reasonable doubt concerning the identity of the shooter and did not mention the firearm discharge allegations. The jury found true the firearm discharge allegations pursuant to section 12022.53, subdivision (d), attached to counts 1, 3 and 5 and found true the 12022.53, subdivision (c), allegation attached to count 2. In a part of his report dealing with section 654 issues, the probation officer stated: "The victim in Count[s] 2, 3 and 5 is separate and distinct from the victim in Count 1." The report does not state who the victims are in the various counts. It is clear from the information the victim in count 1 is Moraima and the victim in count 2 is Coss. It is less clear who the probation officer believed was the victim or victims in counts 3 and 5. In her sentencing statement, the prosecutor, asserting the multiple victims of violent crime exception to section 654, argued the double punishment prohibition contained in that section did not bar the imposition of sentence on count 2, i.e., attempted murder, and count 3, i.e., discharging a firearm at an occupied dwelling. The prosecutor, citing cases holding that in a prosecution for discharging a firearm at an occupied vehicle, each occupant of the vehicle is a victim, argued the victim in count 1 was Moraima, the victim in count 2 was Coss and the victim in count 3, the discharge at an occupied vehicle count, was Johnson, the third passenger in Coss's truck. That being the case, she argued the court could properly sentence appellant on each of those counts. Before imposing sentence, in his general review of the case, the trial court stated: "Now, as to the determinate terms in counts two, three and five, the victim in counts two, three and five is distinct from the victim in count one." The court did not state who those victims were. As to count one the trial court imposed a term of 25 years to life for the substantive offense plus a term of 25 years to life based on the section 12022.53, subdivision (d), enhancement. As to count 2 terms were imposed on both on the substantive offense and the section 12022.53, subdivision (c), enhancement and stayed pursuant to section 654. As to count 3 the trial court imposed a term of five years for the substantive offense plus 25 years to life based on the section 12022.53, subdivision (d), enhancement and made those terms consecutive to the term imposed as to count 1. As to count 5 the court imposed a term and stayed it pursuant to section 654. 2. Sufficiency of Evidence Appellant argues the evidence was insufficient to support the true findings on the 12022.53, subdivision (d), allegations in counts 3 and 5. Appellant's argument proceeds as follows: Moraima was the victim in count 1, and the section 12022.53, subdivision (d), firearm discharge causing death or great bodily injury allegation attached to that count referred to her death. The trial court concluded the victim in count 1 was distinct from the victim in counts 2, 3 and 5. Appellant concludes the victim in counts 2, 3 and 5 must be Coss because he was the only other person in his truck to sustain any injury as a result of the shot fired by appellant. Appellant reviews the evidence concerning that wound and argues as a matter of law it did not amount to great bodily injury. We have reviewed the evidence, including the photographs, dealing with the wound suffered by Coss. A strong case can be made that Coss did not suffer great bodily injury. It is unnecessary, however, we resolve the issue because the severity of that wound is irrelevant to the true finding on the section 12022.53, subdivision (d), allegation in counts 3 and 5. In People v. Oates (2004) 32 Cal.4th 1048 the court concluded it was proper under the facts of that case to impose multiple enhancements on multiple counts concerning multiple victims pursuant to section 12022.53, subdivision (d), even though only one person in that case was injured. In Oates the defendant fired two shots at five people but injured only one. The defendant was convicted of five counts of attempted murder and a section 12022.53, subdivision (d), true finding was made as to each count. The court interpreted section 12022.53, subdivision (d), to require a person suffer death or great bodily injury as a result of a firearm discharge during the commission of the charged offense but did not require the victim of that charged offense be the person injured. ( Id. at pp. 1055-1062.) The court also concluded based on the multiple victim of violent crimes exception to section 654 it was proper to impose multiple section 12022.53, subdivision (d), enhancements as to multiple counts involving multiple victims even when only one person suffered death or great bodily injury as long as that injury occurred during the commission of each charged offense. ( People v. Oates, supra, 32 Cal.4th at pp. 1062-1063.) In People v. Garcia (1995) 32 Cal.App.4th 1756, 1780-1784, as to a charge of discharging a firearm at an occupied vehicle, the court held each occupant of the vehicle is a victim of the crime. In the present case appellant discharged a firearm into a vehicle occupied by Moraima, Coss and Johnson. Each was a victim of that crime. During the commission of that crime, Moraima died as a proximate result of appellant discharging a firearm at the vehicle. That being the case, pursuant to Oates the severity of Coss's gunshot wound is irrelevant because a true finding on the section 12022.53, subdivision (d), as to counts 3 and 5 could be based not on Coss's wound but on the death of Moraima. As in Oates there were separate victims in each of the counts and it was proper to sentence appellant on each and impose a section 12022.53, subdivision (d), enhancement on each. 3. Jury Finding Appellant notes section 12022.53, subdivision (j), requires the trier of fact find true all facts required under subdivision (d), including the discharge of the firearm caused great bodily injury or death. Appellant notes, however, in this case the verdict form stated not that the jury found great bodily injury, but merely bodily injury. He argues there was, therefore, no true finding on an essential element of the allegation. The finding was sufficient. Instruction on the elements of a firearm discharge enhancement pursuant to section 12022.53, subdivision (d), is not provided by the verdict forms. The jury was fully instructed by the court concerning those elements and the verdict form merely provides a place for the jury to report its finding on the allegation. Obviously, if the verdict form is written to describe the jury's particular findings on the elements, it should do so accurately. The form stated the jury found "bodily injury" within the meaning of section 12022.53, subdivision (d). Bodily injury within the meaning of that section is great bodily injury. In any event, assuming any error, no harm was done appellant by the form and it satisfies the requirement the jury make a finding on the allegation. I. Sentencing Issues 1. Count 5 As to count 5 appellant was convicted of discharging a firearm from a vehicle (§ 12034, subd. (d).) A term was imposed on that count and stayed pursuant to section 654. The trial court at sentencing made no mention of the section 12022.53, subdivision (d), discharge of a firearm causing great bodily injury or death, allegation found true as to that count. Appellant correctly argues by operation of law the enhancement should also have been stayed pursuant to section 654. As the Attorney General points out, the abstract of judgment shows both the term for the offense in count 5 and its enhancement were stayed pursuant to section 654. 2. Count 2 The Attorney General argues the trial court imposed an unauthorized sentence on count 2. As to count 2 appellant was found guilty of attempted murder with a true finding on an allegation the attempted murder was willful, deliberate and premeditated. As to that count, the trial court imposed the middle term of seven years generally applicable to attempts to commit crime punishable by life imprisonment. (§ 664, subd. (a).) The Attorney General argues and appellant agrees this sentence was unauthorized. Section 664, subdivision (a), sets the sentence for attempted murder with a finding the crime was willful, deliberate and premeditated as life with the possibility of parole. We agree the trial court erred and we remand the matter for resentencing. 3. Count 3 In count 3 appellant was convicted of shooting at an occupied vehicle in violation of section 246 and was sentenced to a term of five years in prison. As to that count, the trial court imposed but stayed pursuant to section 654 an enhancement for use of a firearm within the meaning of section 12022.5, subdivision (a). Appellant argues and respondent agrees that because the use of a firearm is an element of the charged offense, it was not enough merely to stay the enhancement, it should have been dismissed. We agree. On remand the trial court should so indicate.
While it is of no consequence here, we note that section 12022.53, subdivision (d), uses the disjunctive "or" between the words injury and death.
The prosecutor conceded that section 654 required sentence on count 5 be stayed.
DISPOSITION
The matter is remanded for resentencing. In all other respects, the judgment is affirmed.
McIntyre, J., and Aaron, J., concurred.
A petition for a rehearing was denied June 11, 2007, and appellant's petition for review by the Supreme Court was denied August 29, 2007, S153924.