Opinion
NOT TO BE PUBLISHED
MALLANO, P. J.
APPEAL from a judgment of the Superior Court of Los Angeles County. Martin Herscovitz, Judge. Affirmed with directions. No. LA053458
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Murchant Jerald Wade appeals from the judgment entered following a jury trial in which he was convicted of three counts of assault with a semiautomatic firearm, with personal firearm-use findings, discharging a firearm in a grossly negligent manner, possession of a firearm by a felon, and receiving stolen property. Defendant contends the trial court committed instructional and sentencing error. We affirm but direct the trial court to correct an error on the abstract of judgment.
BACKGROUND
Early on the morning of August 30, 2006, Hersho Barazi, Tiago Avelar, and Heinz Abednego went to a bar in Woodland Hills. Defendant entered the bar with Ayesha Osteen, Jessica Shields, and Steven Lau. Defendant and Barazi thought they recognized each other and had a brief, friendly conversation. Barazi also attempted to speak with Osteen or Shields, who appeared uninterested in him. Lau thought Barazi was under the influence of alcohol because his speech was slurred.
Everyone left the bar at closing time. Barazi, Avelar, and Abednego got into Barazi’s car and began to drive away. Barazi stopped the car when a woman attempted to talk to him. He got out of the car, spoke to her, gave her his telephone number, and got back into the car. Lau testified that Barazi’s car was blocking Osteen’s car in which defendant, Shields, and Osteen had arrived. Defendant walked up to the open front window on the passenger side of Barazi’s car, leaned in, waved a gun, and asked whether Barazi was trying to get a woman or get robbed. (Abednego testified that defendant did not initially display a gun, but retrieved one from a car and then returned to the passenger side of Barazi’s car.) Barazi said he was not trying to get robbed, bluffed that he had “a.45” under the seat, and told defendant not to wave a gun inside his car. Barazi testified that defendant pointed the gun at Avelar’s head, but Avelar testified he was watching Barazi, not defendant.
Barazi got out of the car and walked up to defendant. Barazi held his hands up to show defendant he was unarmed. Defendant told Barazi to back up and get back in the car. Barazi told defendant to put the gun down. Defendant said, “No, fuck that,” and pointed the gun at Barazi’s chest. Barazi grabbed defendant’s gun and deflected the aim to one side. Barazi and Avelar testified that several shots were fired as soon as Barazi grabbed the gun. Lau testified he saw Barazi struggling over the gun, but defendant pushed Barazi away, fired three shots that struck the ground, adjusted his firing position, aimed in a more controlled fashion, and fired additional shots. Avelar testified that after firing two shots, defendant backed up six to eight feet and fired more shots. Bullets struck Barazi’s left thigh and right calf. He testified that he pushed defendant, ran back to his car, and hastily drove away.
Abednego and Avelar testified that two to four more shots were fired at Barazi’s car as it drove away. One bullet penetrated the passenger side door of the car and grazed Avelar’s leg.
Barazi estimated that only 40 to 50 seconds elapsed between the moment he first saw defendant’s gun and the time he drove away.
The police recovered an expended nine-millimeter bullet from the floor of Barazi’s car and seven expended nine-millimeter casings in the parking lot outside the bar. Ballistics testing established that the gun found in defendant’s motel room eight days after the shooting fired the recovered bullet and casings. The gun had been stolen about five days before the shooting from an acquaintance of Osteen.
Defendant testified that after the bar closed, Barazi moved his car near defendant and said, “She gave me her number.” Defendant said, “Look, either you try to buy some pussy or you’re trying to get robbed.” Although defendant was laughing, Barazi became angry and said he had a “.45.” Defendant told Barazi to calm down. Barazi pulled his car up behind Osteen’s car and repeatedly shouted, “Michelle.” Defendant asked Barazi to move his car so defendant and the women could leave. Barazi became irate and said, “You going to rob me? I got my.45 under my seat.” Defendant told Barazi to “chill.” Barazi reached under his seat.
Defendant testified he retrieved his gun from Osteen’s car, “cocked” it, and returned to the passenger side of Barazi’s car. He pointed the gun at Barazi through the open window and told Barazi to move his car. Barazi immediately got out of the car and walked up to defendant with his hands up. Defendant could see that Barazi was not holding a weapon. Defendant backed up and told Barazi to get back in his car and move it. Defendant was pointing his gun “down low.” Barazi continued to advance on defendant, then grabbed defendant’s gun. Defendant and Barazi wrestled over the gun. Defendant pushed Barazi away and they each stepped back. Defendant told Barazi that he did not want to shoot and urged Barazi to get back in his car and leave. Barazi came toward defendant again and defendant fired his gun at the ground. Barazi came toward defendant again, so defendant again shot at the ground. Barazi was “standing there, like he’s stuck on stupid,” so defendant fired two more shots. Defendant again asked Barazi to move his car and leave, and fired the gun “down to the right.” Barazi finally got into his car and began driving away.
Defendant saw the brake lights on Barazi’s car illuminate and thought Barazi might shoot at him, so he fired twice into the sky. He denied shooting at Barazi’s car. Defendant admitted he purposely fired five shots at the ground while Barazi was outside of the car and two more shots into the air after Barazi was back in his car, but denied any intent to kill or hurt anyone. Defendant estimated he fired all of his shots within 30 to 55 seconds.
Defendant’s statement to the police was largely consistent with his testimony at trial, but he told the police that he shot Barazi “in his leg” when Barazi stepped toward him, then shot him “two more times in the legs” when Barazi took another step toward him. Defendant said he knew he shot Barazi three times and reiterated that he was shooting at Barazi’s legs. Defendant also told the police he fired no additional shots after Barazi returned to his car.
The jury convicted defendant of assaulting Avelar, Barazi, and Abednego with a semiautomatic firearm (counts 2, 8, and 9) and found that defendant personally used a firearm in the commission of each of these offenses. The jury also convicted defendant of possession of a firearm by a felon, receiving stolen property, and discharging a firearm in a grossly negligent manner, as a lesser included offense of shooting at an occupied motor vehicle. It acquitted defendant of three counts of attempted murder and the lesser included offense of attempted involuntary manslaughter. The jury also found defendant had suffered two prior convictions, including a 1996 conviction of violating Penal Code section 422 and had served a prior prison term within the scope of Penal Code section 667.5, subdivision (b)(1). (All further statutory references pertain to the Penal Code.) The court sentenced defendant to 22 years 4 months in prison.
DISCUSSION
1. Failure to instruct sua sponte on brandishing a firearm as lesser offense
While conferring with counsel regarding instructions, the trial court stated it could think of no lesser included offenses for the assault with firearm charges that were supported by the evidence. The court asked if defense counsel could suggest any lesser included offenses and counsel replied, “Okay. No, that’s fine.”
Defendant now contends that the trial court was obliged to instruct sua sponte on brandishing a firearm (§ 417, subd. (a)(2)) as a lesser included offense to each charge of assault with a firearm (counts 2, 8, and 9). He also argues the omission violated due process.
A trial court must instruct sua sponte on lesser included offenses that are supported by the evidence, but not upon lesser related offenses. (People v. Yeoman (2003) 31 Cal.4th 93, 129; People v. Steele (2000) 83 Cal.App.4th 212, 217 (Steele).) An offense is necessarily included in another if either the statutory elements of the greater offense or the facts alleged in the accusatory pleading include all of the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser. (People v. Sanchez (2001) 24 Cal.4th 983, 988.)
Brandishing a firearm is a lesser related, but not included, offense of assault with a semiautomatic firearm under the statutory elements test. (Steele, supra, 83 Cal.App.4th at p. 218 [brandishing firearm not included within assault with a firearm]; People v. Escarcega (1974) 43 Cal.App.3d 391, 398 [brandishing not included within assault with a deadly weapon].) Defendant argues that People v. Wilson (1967) 66 Cal.2d 749 held that brandishing a firearm is a lesser included offense of assault with a firearm. We reject this argument for the same reasons set forth at length in Steele. (Steele, supra, 83 Cal.App.4th at pp. 219–221.)
Because the information did not allege that defendant drew or exhibited the gun in a rude, angry, or threatening manner or that he unlawfully used it during a fight or quarrel, brandishing a firearm was not a lesser included offense of assault with a semiautomatic firearm under the accusatory pleading test.
The trial court did not err by failing to instruct the jury on brandishing a firearm as a lesser included offense. Because defendant’s due process claim was premised on the existence of such an error, it also fails.
2. Instruction with CALCRIM No. 875
The trial court instructed the jury with CALCRIM No. 875, which, in pertinent part, informed the jury that the offense of assault with a semiautomatic firearm required the prosecution to prove that defendant “did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person,” he “did that act willfully,” and when he acted, “he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.”
Defendant admits the instruction comports with People v. Williams (2001) 26 Cal.4th 779, 787–788, 790, but argues that both the instruction and Williams improperly define the mental state necessary for conviction of an assault. As defendant acknowledges, we must follow Williams. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The trial court did not err by instructing with CALCRIM No. 875.
3. Failure to instruct sua sponte on accident
Defendant contends that the trial court erred by failing to instruct sua sponte upon accident as a defense. He argues that the “evidence suggested the gun may have accidentally discharged” when Barazi and defendant struggled over it.
The trial court has a duty to instruct sua sponte regarding a defense if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424.)
No crime is committed by a person who commits the act charged “through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.” (§ 26.)
No evidence supported an accident defense. Although Avelar and Barazi testified that the gun fired at about the same time Barazi grabbed it, this testimony did not address the cause of the gun’s discharge. The remaining evidence established volitional shooting by defendant. Lau testified that the struggle over the gun finished before any shots were fired and he saw defendant adjust his aim after the first three shots. Defendant — the only person who was in a position to know whether or not he intentionally pulled the trigger or the gun fired accidentally — testified that after he and Barazi wrestled over the gun, he pushed Barazi away and they moved farther apart. According to defendant, he then intentionally fired five shots at the ground and later two into the air. Similarly, defendant told the police that after Barazi grabbed defendant’s gun, defendant “snatched it back” and backed away before firing shots at Barazi’s legs. Defendant never claimed the gun fired accidentally and did not argue an accident defense. Given the absence of any evidence showing an accidental shooting and the absence of any indication defendant was relying on an accident defense, the trial court had no duty to instruct upon accident.
4. Failure to instruct sua sponte on unanimity
Defendant contends that the trial court erred by failing to give a unanimity instruction sua sponte. He argues that the conviction for aggravated assault upon Barazi (count 8) could have been based upon any one of three incidents: “waving” the gun inside the car, firing the gun while Barazi and defendant faced off outside of the car, and firing the gun at Barazi’s car. He argues the convictions for aggravated assault upon Avelar (count 2) and Abednego (count 9) could have been based upon either waving the gun inside the car or firing the gun at the car.
A trial court must instruct jurors that they must unanimously agree that defendant committed the same specific criminal act “‘when conviction on a single count could be based on two or more discrete criminal events’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (People v. Russo (2001) 25 Cal.4th 1124, 1135.) Where a unanimity instruction is required it must be given sua sponte. (People v. Curry (2007) 158 Cal.App.4th 766, 783.)
“[N]o unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. ‘The “continuous conduct” rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.’ [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 275.) “A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.... [T]he possibility of disagreement exists where the defendant is accused of a number of unrelated incidents, such as alleged rapes at different times or places, leaving the jurors free to believe different parts of the testimony and yet convict the defendant.... Disagreement may also exist where the defendant offers a defense which could be accepted or rejected as to some but not all of the acts.” (People v. Gonzalez (1983) 141 Cal.App.3d 786, 791–792 (Gonzalez), disapproved on another ground in People v. Kurtzman (1988) 46 Cal.3d 322, 330.)
Defendant’s acts against Barazi were closely connected in time and place and formed one continuing transaction. Defendant pointed the gun at Barazi inside the car and Barazi immediately got out of the car and approached defendant. Defendant fired the gun and Barazi got back into his car. As Barazi began to drive away, defendant admittedly fired at least two more shots, one of which struck Barazi’s car. The sequence of events was uninterrupted and lasted a very brief time: less than one minute, according to Barazi. Defendant admitted pointing his gun at Barazi and firing the shots when Barazi was outside of the car and when he was driving away. His defense was the same as to all of these acts, that is, he did not intend to harm Barazi, but was acting in self-defense and merely trying to scare him into leaving the scene. Under the circumstances, there was no reasonable basis for the jury to distinguish between the acts and no likelihood the jury would accept defendant’s theory of defense as to some but not all of the acts. No unanimity instruction was required with respect to count 8.
Two acts pertained to Avelar: (1) before Barazi got out of the car, defendant pointed the gun at Avelar, according to Barazi, and (2) a bullet fired by defendant’s gun while Barazi drove away penetrated the car door and grazed Avelar’s leg. Both acts were part of the same uninterrupted confrontation between defendant and Barazi. Given the short duration of the entire episode, very little time could have elapsed between the act of pointing the gun and firing the gun as Barazi attempted to drive away. Defendant’s defense to all charges with respect to all victims was essentially the same — minimizing his conduct and claiming he acted in self-defense against Barazi. There was no reasonable basis for the jury to distinguish between the acts and no likelihood the jury would accept defendant’s theory of defense as to some but not all of the acts. No unanimity instruction was required with respect to count 2.
Even if a unanimity instruction were required with respect to count 2, reversal is not required if the error was harmless beyond a reasonable doubt. (People v. Thompson (1995) 36 Cal.App.4th 843, 853.) In this case, no one ever suggested or informed the jury that pointing the gun at Avelar or waving the gun around in the car could form the basis for a conviction on the assault with a firearm charge in count 2. The prosecutor once briefly referred to defendant “waving” the gun inside the car, then focused his argument on the actual firing of the gun at Barazi and at the car. The prosecutor did not refer to defendant “pointing” the gun at anyone and never argued that pointing the gun at anyone in the car constituted an assault with a firearm. Defense counsel briefly referred to defendant “waving” his gun in the car as an attempt to convince Barazi to leave the parking lot and argued that Barazi lied when he testified that defendant pointed gun at Avelar’s head. Defense counsel directed the bulk of his argument to the self-defense theory and the shots defendant fired. The court did not instruct the jury that pointing a gun at a person or waving a gun in close proximity to a person could support a conviction for an assault with a firearm. In addition, the undisputed evidence established that Avelar was grazed by a bullet fired by defendant. He was not injured by the waving or pointing of the gun inside the car. Defendant admitted firing the gun and defendant presented the same defense against all of the acts with respect to all of the victims. Under the circumstances, it is not reasonably probable jurors disagreed about whether defendant fired the gun, causing contact with Avelar, and thereby committing the assault with a firearm. Any error in failing to instruct on unanimity was harmless beyond a reasonable doubt with respect to count 2.
No evidence indicated defendant pointed the gun at Abednego, who was in the backseat. Assuming that waving the gun around inside the car would support a conviction for assaulting Abednego with a firearm, the analysis is similar to that pertaining to count 2. Waving the gun and firing it were closely related parts of a single continuous course of conduct. No unanimity instruction was required. Even if we were to conclude that the trial court should have instructed on unanimity, the failure to do so was harmless beyond a reasonable doubt. Although Abednego was not injured, the focus of the case was defendant’s admitted discharge of the gun and whether it was justified by self-defense. No one suggested the assault conviction could be based upon defendant’s act of waving the gun in the car. Any error in failing to instruct on unanimity was harmless beyond a reasonable doubt with respect to count 9.
5. Failure to stay sentence on conviction of discharging a firearm in a grossly negligent manner pursuant to Penal Code section 654
The trial court sentenced defendant, in pertinent part, to 12 years for the aggravated assault on Barazi, concurrent 12-year terms for the aggravated assaults on Avelar and Abednego, and a concurrent 4-year term for discharging a firearm in a grossly negligent manner (count 5).
Defendant contends that the trial court erred by failing to stay the term for discharging a firearm in a grossly negligent manner. He argues that “[t]he felony assaults and the shooting at the vehicle occurred in a short period of time in [a] continuous sequence of related events” and thus formed an indivisible course of conduct. He also argues that the multiple victim exception was inapplicable because each person in the car was also the named victim of one of the aggravated assault charges.
Section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (Ibid.) If a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Violent crimes against different victims may be separately punished. (People v. Oates (2004) 32 Cal.4th 1048, 1063.)
Section 654 applies only to “a course of conduct deemed to be indivisible in time”; if a course of conduct is “divisible in time,” section 654 is inapplicable. (People v. Beamon (1973) 8 Cal.3d 625, 639 & fn. 11.) Thus, even if offenses were committed with a single intent and objective, they may be punished separately if they were committed on different occasions. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) Factors often considered in determining the temporal divisibility of offenses are whether the defendant had an opportunity to reflect upon and renew his or her intent before committing the next offense and whether each offense created a new risk of harm. (People v. Gaio (2000) 81 Cal.App.4th 919, 935; Kwok, supra, 63 Cal.App.4th at p. 1255.)
The defendant’s intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.) Here, neither the parties nor the trial court addressed the applicability of section 654. We treat the trial court’s ruling as an implicit finding that multiple punishment was permissible. (Ibid.)
The shots defendant fired at the departing car were undoubtedly the basis of the aggravated assault convictions pertaining to victims Avelar and Abednego. If those had been the only shots fired, separate punishment for count 5 would have been impermissible. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1784 [where the same individuals are the victims of a shooting at an occupied motor vehicle and of simultaneous assaults, section 654 precludes punishment for both offenses].) But defendant shot at and injured Barazi when Barazi was outside of the car, ceased firing at Barazi, then resumed firing after Barazi returned to the car and began to drive away. The two briefly-separated groups of shots at Barazi inside and outside the car provided substantial evidence supporting the trial court’s implicit determination that defendant could be separately punished for the aggravated assault on Barazi and count 5. (People v. Trotter (1992) 7 Cal.App.4th 363, 367–368 (Trotter).)
The defendant in Trotter, supra, 7 Cal.App.4th 363, carjacked a taxi and drove onto a freeway, where a police officer began pursuing him. As he drove, the defendant turned in his seat and fired at the police officer through the back window of the taxi. The defendant “resumed driving, paused for about a minute, turned back, and shot again” at the officer. (Id. at p. 368.) A few seconds later, the defendant fired a third shot at the officer. The defendant was convicted of three counts of assault on a peace officer, one for each of the three shots. The trial court imposed consecutive, unstayed sentences for the first two assaults and stayed the sentence for the third. (Id. at p. 365.) On appeal, the defendant contended that section 654 barred separate punishment for the first two assaults. (Id. at p. 366.) The appellate court disagreed: “The purpose behind section 654 is ‘to insure that a defendant’s punishment will be commensurate with his culpability.’... Defendant’s conduct became more egregious with each successive shot. Each shot posed a separate and distinct risk to [Officer] Bledsoe and nearby freeway drivers. To find section 654 applicable to these facts would violate the very purpose for the statute’s existence. [¶] Furthermore, this was not a case where only one volitional act gave rise to multiple offenses. Each shot required a separate trigger pull. All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. ‘[D]efendant should... not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his... assaultive behavior.’ [Citation.] [¶] Defendant, as he was driving, turned back, pointed, and shot his weapon. He resumed driving, paused for about a minute, turned back, and shot again. After another few seconds a third shot was fired. There was thus time prior to each shot for defendant to reflect and consider his next action.” (Id. at pp. 367–368.)
Similarly, defendant had ceased firing at Barazi, then, as Barazi drove away, defendant resumed shooting, directing his fire at Barazi’s car. These shots at the car created a separate, distinct risk of harm to Barazi and increased the egregiousness of defendant’s conduct and his culpability. When defendant fired at Barazi’s car, he engaged in a new and separate volitional act of pulling the trigger. The shots at the car “evinced a separate intent to do violence” against Barazi. (Trotter, supra, 7 Cal.App.4th at p. 368.) The interval between the shots defendant fired at Barazi outside of the car and the shots defendant fired at the car, albeit brief, provided an opportunity for defendant to reflect upon and abandon his assaultive behavior. He instead resumed shooting. Substantial evidence thus supported a finding of a renewed, consecutive intent to harm Barazi or, crediting defendant’s testimony, use violence to drive Barazi away. Punishing defendant for both the aggravated assault on Barazi and the grossly negligent shooting was commensurate with defendant’s culpability and was not error.
While our analysis of defendant’s section 654 and unanimity instruction claims might seem to be inconsistent, the issues are distinct. Whether a unanimity instruction is required turns on whether the jury might divide over which act a defendant committed and yet convict the defendant of the crime charged. (Gonzalez, supra, 141 Cal.App.3d at pp. 791–792.) Where the acts are parts of a continuous transaction and the defense to each act is the same, there is no risk of such a division. The goal of section 654 is to insure that the punishment is commensurate with the defendant’s culpability. In this context, successive acts, such as resuming shooting after a pause, render the defendant more culpable and permit multiple punishment.
6. Correction of abstract of judgment
The abstract of judgment incorrectly reflects count 5 as a conviction of shooting at an inhabited dwelling or vehicle in violation of section 246. The jury acquitted defendant of that charge and instead convicted him of discharging a firearm in a grossly negligent manner, in violation of section 246.3. The abstract also incorrectly reflects a term of 4 years 4 months for the stayed firearm-use enhancement for count 9. This should be corrected to reflect a stayed term of 4 years. Unless the trial court has already corrected these errors, it is ordered to do so upon remand.
DISPOSITION
The judgment is affirmed. Unless the trial court has already corrected the abstract of judgment with respect to count 5, it is ordered to issue an amended abstract reflecting that (1) count 5 was a conviction for a violation of Penal Code section 246.3, discharging a firearm in a grossly negligent manner, and (2) the length of the stayed term for the Penal Code section 12022.5, subdivision (a) enhancement for count 9 is 4 years.
We concur: ROTHSCHILD, J., CHANEY, J.