Opinion
As modified Feb. 10, 1998.
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change in the Jan. 2000 Review Granted Opinions to permit tracking pending review and disposition by the Supreme Court.] [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
Terry K. Diggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias and David D. Salmon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RUVOLO, J.
I.
Introduction
In People v. King (1993) 5 Cal.4th 59 [19 Cal.Rptr.2d 233, 851 P.2d 27] (King) the California Supreme Court overruled its prior decision in In re Culbreth (1976) 17 Cal.3d 330 [130 Cal.Rptr. 719, 551 P.2d 23], and thus repudiated its earlier conclusion that multiple firearm sentencing enhancements could not be imposed pursuant to Penal Code 17 Cal.3d at p. 333.) In so doing the court clarified: "We need not and do not decide here the propriety of multiple enhancements when the same act results in multiple victims, such as when one bullet hits two or more persons. We leave that question to a later day." (King, supra, 5 Cal.4th at p. 79, parentheses & fn. omitted.) We are called upon to answer that question of first impression in the course of resolving the issues raised by this appeal. We conclude "yes," a single shot from a firearm which results in convictions for assaults on multiple victims can subject a defendant to multiple enhancements under section 12022.5 for each assault committed.
We also reject appellant's insufficiency of the evidence claim, and her claim that multiple terms of punishment for the assault convictions are precluded by section 654.
II. Contentions
Tameka C. appeals from the judgment of wardship entered upon a finding by the juvenile court that she had committed three assaults with a firearm against a peace officer and two assaults with a firearm against others, and that a firearm use enhancement was applicable to each finding. Appellant raises three issues on appeal: (1) whether the juvenile court erred in finding that she assaulted a child who was injured when a glass door shattered as a result of gunfire directed by her at three police officers, (2) whether the court erred in refusing to stay the sentence imposed on that assault count pursuant to section 654, and (3) whether the court erred in imposing a firearm use enhancement on that count pursuant to section 12022.5, given that the same act (discharging the firearm) had already been punished by imposition of use enhancements on the counts of assault against a peace officer. This third issue is that which went unanswered in King, supra, 5 Cal.4th 59. We will address each contention in turn.
III. Factual Background
On March 1, 1994, about 6:30 p.m., suspected drug dealer Eddie Stansberry punched appellant in the mouth while they stood arguing on Valencia Street near 15th Street in San Francisco. Appellant, who was seventeen years old at the time, briefly ran off, then returned a short time later with a handgun and shot at Stansberry three to four times, hitting him in the buttocks.
Three plainclothes police officers who had been observing Stansberry exited their unmarked car, identified themselves to appellant, and ordered her to drop her weapon. Appellant fired at least once at the officers, who returned fire. A bullet discharged by appellant struck the doorway of the Sunrise Hotel, which was located directly behind the officers. A shard of broken glass from the door injured the eye of a 6-year-old boy, Michael K., who was sitting on some stairs with his mother approximately 5 feet inside of the doorway of the hotel. The injury required three operations and impaired the child's vision in the injured eye. A bullet fired by one of the officers struck appellant, resulting in a spinal cord injury which left her paralyzed from the waist down.
On March 3, 1994, appellant was charged with four counts of attempted murder (sections 664/187), three counts of assault with a firearm on a peace officer (section 245, subd. (d) (1)), three counts of assault with a firearm on others (section 245, subd. (a) (2)), and one count of mayhem (section 203). Each count included a firearm use allegation (section 12022.5, subd. (a)). Because of the extensive injuries suffered by appellant, the jurisdictional hearing did not begin until June 12, 1995. That hearing lasted for approximately one week. At the close of the testimony, the juvenile court dismissed six of the counts against appellant, including the allegations of attempted murder against Stansberry and the three officers, the allegation of mayhem against Michael K., and the allegation of assault with a firearm against Kimberly K. (Michael K.'s mother). The court found true each of the five remaining allegations: three counts of assault with a firearm upon the police officers and two counts of assault with a firearm upon Michael K. and Eddie Stansberry. The court also found the section 12022.5 firearm use enhancements true as to each of the five counts.
In finding true the assault allegation against Michael K., the trial court concluded appellant had fired at least one round at the officers in the direction of the Sunrise Hotel. In dismissing the mayhem count, the court found, however, that appellant was not aware of Michael K.'s presence inside the hotel when she fired.
Subsequently, in explaining its consecutive sentence on the Michael K. assault count, the juvenile court found "as a matter of law that in the shooting of Michael K., the minor here, [appellant] fired at the police officers, that the boy was behind those police officers, that the ricocheting of the bullets caused the glass to fracture, which penetrated the eye of the minor, causing him ... at least at the present time to lose vision out of that eye, to a certain extent. And as a consequence he is a victim of that assault, ..." The court disagreed with defense counsel's assertion that the injury to Michael K. was unforeseeable, stating: "Certainly, if you fire in an urban area at an individual and a glass structure [is] behind that person you are firing at, the chances are certainly reasonable that the glass that's in the direction of your bullet can shatter causing it to hit people." The dispositional hearing took place on July 25 and August 17, 1995. At the conclusion of that hearing, the juvenile court committed appellant to the California Youth Authority for a maximum confinement period of 17 years, 8 months. That sentence included eight years for one count of assault with a firearm on a peace officer (count 5), with an additional five years for the firearm use enhancement as to that count, and one year each for the two counts of assault with a firearm against Eddie Stansberry (count 11) and Michael K. (count 8), with an additional sixteen months for the firearm use enhancement as to each count. This timely appeal followed.
Because the alleged crimes were committed on March 1, 1994, appellant was sentenced under former section 12022.5, subdivision (a) which authorized an additional term of imprisonment for three, four, or five years.
The Model Penal Code definition is as follows: "A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation." (Model Pen. Code, section 2.02(2) (c).)
The court sentenced appellant identically for each of the other two assaults with a firearm against the police officers, but ordered those sentences to run concurrently.
"An important distinction is drawn between acting either purposely or knowingly and acting recklessly. As the [Model Penal] Code uses the term, recklessness involves conscious risk creation. It resembles acting knowingly in that a state of awareness is involved, but the awareness is of risk, that is of a probability less than substantial certainty; the matter is contingent from the actor's point of view.... [Italics added.] [ ] The risk of which the actor is aware must of course be substantial in order for the recklessness judgment to be made. The risk must also be unjustifiable.... Some standard is needed for determining how substantial and how unjustifiable the risk must be in order to warrant a finding of culpability. There is no way to state this value judgment that does not beg the question in the last analysis; the point is that the jury must evaluate the actor's conduct and determine whether it should be condemned. The Code proposes, therefore, that this difficulty be accepted frankly, and that the jury be asked to measure the substantiality and unjustifiability of the risk by asking whether its disregard, given the actor's perceptions, involved a gross deviation from the standard of conduct that a law-abiding person in the actor's situation would observe." (Model Pen. Code, section 2.02, coms. at pp. 236-237, fn omitted.)
IV
Discussion
A. Sufficiency of Evidence for Conviction of Assault Against Michael K.
Appellant's first contention is that the evidence does not support the juvenile court's finding that she assaulted Michael K., who was injured by a shard of glass from a glass door that shattered when appellant shot at the three police officers. She claims there is an insufficient causal connection between her action-firing the gun-and the injury to Michael K.
In People v. Colantuono (1994) 7 Cal.4th 206 [26 Cal.Rptr.2d 908, 865 P.2d 704], the California Supreme Court concluded that the criminal intent required for assault with a deadly weapon " 'is the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another.' " (Id. at p. 214, quoting People v. Rocha (1971) 3 Cal.3d 893, 899 [92 Cal.Rptr. 172, 479 P.2d 372], fns. omitted.) The mens rea for assault is established by proof that a defendant willfully committed an act that by its nature would probably and directly result in injury to another. (Ibid.)
In People v. Roberts (1992) 2 Cal.4th 271 [6 Cal.Rptr.2d 276, 826 P.2d 274], the Supreme Court discussed the general rules of causation in criminal cases. Following a lengthy discussion of proximate cause, the court concluded: "The criminal law thus is clear that for liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant's act." (Id. at p. 319.) "A result cannot be the natural and probable cause of an act if the act was unforeseeable." (Id. at pp. 321-322.) The court acknowledged, however, that "there is no bright line demarcating a legally sufficient proximate cause from one that is too remote. Ordinarily the question will be for the jury, though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus. [Citations.]" (Id. at p. 320, fn. 11.)
In considering these and other decisions, the Third District recently clarified the relationship between intent and causation in the crime of assault in People v. Smith (1997) 57 Cal.App.4th 1470 [67 Cal.Rptr.2d 604]. The court noted that an assault was an attempted battery, and thus, the actor had to possess the intent to injure another in committing the wrongful act. Judicial references to "the natural and probable consequence" cannot be taken to eliminate this intent to commit a battery, but instead serve to ensure that the defendant's act has a proper causative nexus to the defendant's intent. (Id. at pp. 1482-1484). Thus, in looking at the elements of a charged assault against an unintended victim, the harm to the victim must have been the natural and probable consequence of the defendant's act, the original purpose of which was an attempt to commit a battery.
With these general principles at hand, we review the facts and law on intent and criminal causation as they relate to the evidence adduced at the hearing below.
1. Transferred Intent
In the present case, both the parties and the court apparently framed the question of appellant's liability for the assault on Michael K. under the theory of transferred intent. As appellant now correctly points out, with limited exceptions, transferred intent does not apply to the crime of assault. (See People v. Lee (1994) 28 Cal.App.4th 1724, 1736-1737 [34 Cal.Rptr.2d 723]; see also People v. Tran (1996) 47 Cal.App.4th 253, 262 [54 Cal.Rptr.2d 650]; CALJIC Nos. 8.65, 9.10; cf. People v. Martinez (1977) 75 Cal.App.3d 859 [142 Cal.Rptr. 515] [assault with a deadly weapon upon a police officer (section 245, subd. (b)) is also a general intent crime].) For example, in People v. Lee, supra, 28 Cal.App.4th at pages 1728-1732, the defendant admitted he shot three times into a group, but did so in order to defend himself against victim Young, who was struck twice in the leg; victim Green was standing next to Young and was not struck by gunfire. The Fourth District affirmed the defendant's conviction for attempting to murder Young and for assaulting Green with a deadly weapon. The court explained: "Under Colantuono and Rocha, a defendant need not intend to strike any particular person to be guilty of an assault, and it is therefore irrelevant whether the defendant strikes his intended victim or another person. It follows that the doctrine of transferred intent does not apply at all in an assault case; there is no specific intent to transfer." (Id. at p. 1737.)
Both the prosecutor and defense counsel explicitly mentioned the doctrine of transferred intent in their arguments for and against a finding of assault against Michael K. The judge's reference is a bit more oblique, though it does seem that he spoke indirectly of transferred intent as a basis for his finding of assault against Michael K. and for his decision that that assault term should run consecutively to that of the assault on the police officer. The judge stated: "Well, the cases that I have reviewed ... deal with the cases of attempted murder and murder clearly indicate that even though the person intended to kill X and in fact killed Y, the crime of attempted murder as to X and murder of Y could be run consecutively. I think those cases are persuasive in the assault transaction."
If the actor actually intended to injure or kill more than one victim with a single shot, I would agree that multiple enhancements could be imposed under the King rule, because in that event there would be a relationship between the actor's purpose and the end he achieved. {Page 60 Cal.App.4th 1282}
The Lee court observed that before and even to a lesser extent, after Rocha, several courts had applied the doctrine of transferred intent to the crime of assault. (28 Cal.App.4th at p. 1737, citing People v. Williams (1980) 102 Cal.App.3d 1018 [162 Cal.Rptr. 748] and People v. Cotton (1980) 113 Cal.App.3d 294 [169 Cal.Rptr. 814].) For instance, in People v. Williams, supra, 102 Cal.App.3d at page 1026, the Fifth District noted that "... the doctrine of transferred intent was developed for the purpose of redressing physical injury" and in an assault case, "... the jury should be instructed on transferred intent only when 'the defendant actually commits an assault against the wrong person, due to mistaken identity [citation] or where the defendant intends to commit an assault against one party, but through faulty aim, actually causes some physical harm to another person [citations].' " (See also People v. Cotton, supra, 113 Cal.App.3d at pp. 301, 307 [Second District].) In disapproving of even these limited applications of transferred intent, the court in Lee stated: "In our view, Cotton and Williams were wrongly decided; they did not consider the implications of Rocha, and they are inconsistent with both Rocha and ColantuoNo." (People v. Lee, supra, 28 Cal.App.4th at p. 1737.)
We agree that the doctrine of transferred intent has no application to a case such as the one before us where the charge of assault is grounded on an injury to an unintended victim. If there is criminal liability for assault, it must be based on proof of direct liability under established principles of intent and causation.
2. Direct Liability
Since the doctrine of transferred intent is inapplicable to the assault on Michael K., we must decide whether appellant may be held directly responsible for the injury to Michael K. Appellant contends the evidence is insufficient because she indisputably was unaware of the presence of Michael K., and she had no intent to injure him by the discharge of her firearm against the officers.
In numerous cases, the appellate courts have upheld assault convictions where the defendant caused physical injury to an unintended victim. For example, in People v. Tran, supra, 47 Cal.App.4th 253, a knife-wielding defendant chased a man who was holding his baby in his arms. The defendant was convicted of two counts of assault with a deadly weapon, and the Sixth District affirmed, explaining: "We read Colantuono to mean that an intent to do an act which will injure any reasonably foreseeable person is a sufficient intent for an assault charge. Defendant need not have specifically intended to injure baby Jackson; chasing Sang Ngoc Tang (who was carrying Jackson) and wielding a large knife conveyed an intent to cause injury with the knife. It is not reasonable to insist that defendant desired only to injure the father, and thus was not liable for an assault on the son. Surely a knife attack on the father could foreseeably have wounded the baby." (Id. at p. 262.)
Similarly, in People v. Calderon (1991) 232 Cal.App.3d 930, 933 [283 Cal.Rptr. 833], the defendant was in a park when he shot at Bui, his intended victim, four times. Defendant missed Bui, but hit a 7-year-old boy who was playing 5 feet away. The defendant pleaded guilty to two counts of attempted murder and two counts of assault with a deadly weapon. (Ibid.) The Fourth District found that the portion of the plea concerning the attempted murder of the boy was defective because the doctrine of transferred intent, on which the factual basis for the defendant's crimes was based, was inapplicable as a means of assigning liability for attempted murder. (Id. at pp. 935-937.) The court found, nevertheless, that the defendant remained accountable for the shooting of the boy as there was a sufficient factual basis for the assault with a deadly weapon conviction as to both the boy and Bui. In so concluding, the court explained: "the charge requires only 'the general intent to willfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another.' [Citation.] ... His one act of shooting constitutes the crime of assault with a firearm upon both victims." (Id. at p. 937, quoting People v. Rocha, supra, 3 Cal.3d at p. 899.)
In People v. Martinez, supra, 75 Cal.App.3d at page 862, an assault with a deadly weapon conviction was upheld where the defendant threw a bottle, which bounced off a departing police car and hit a police officer who was still at the scene. The Second District found it was irrelevant whether defendant specifically intended to strike the officer. His conduct showed a "wanton and willful disregard for human life" which permitted the inference that he had the requisite general intent to commit assault with a deadly weapon. (Id. at pp. 863-864; see also People v. Lee, supra, 28 Cal.App.4th at p. 1737 [upholding assault conviction against unintended victim].)
Appellant attempts to distinguish her case from those discussed above by emphasizing she was not specifically aware of the presence of Michael K. In drawing this purported factual distinction, appellant refers to People v. Lee, supra, 28 Cal.App.4th at page 1735, citing People v. Birch (1969) 3 Cal.App.3d 167, 172-173 [83 Cal.Rptr. 98], in which the defendant fired a shot through an apartment window intending to hit victim Ferguson who was standing outside. The bullet passed just behind a police officer who was also standing outside on the porch of the apartment. The Second District in Birch found there was substantial evidence that the defendant had attempted to inflict a violent injury on Ferguson. Therefore, had the bullet intended for Ferguson struck the officer, the defendant would also be guilty of assault on the officer. (3 Cal.App.3d at p. 177.) However, because the bullet intended for Ferguson did not strike the officer and there was no evidence that it was intended to inflict a violent injury on the officer, the court reversed the conviction for the assault on the officer. "This is not to say that an assault with a deadly weapon may not be perpetrated against two or more victims by the firing of a single shot where the bullet does not strike any one of the intended victims." (Ibid.)
The court in People v. Lee, supra, 28 Cal.App.4th at page 1735, distinguished the case before it from Birch, explaining that the defendant in Lee was aware of the presence of the group, including Green-who was not physically harmed but on whose " 'injury' " the assault charge was based-and the jury could reasonably conclude that the defendant intended to harm not only Young-at whom the defendant admitted shooting-but also some or all of his companions. (Id. at pp. 1735-1736; see also People v. Griggs (1989) 216 Cal.App.3d 734, 742 [265 Cal.Rptr. 53] [Fifth District] [also distinguishing Birch: "[Birch] seems to imply, in a situation not involving transferred intent, the defendant must have intended his assault against a particular victim. The context of Birch, however, indicates the defendant was unaware of the presence of [Officer] Council. Here the defendant was clearly aware of the crowd assembled in the direction in which he fired the gun."].)
While appellant contends Lee, Birch, and Griggs at least impliedly support her claim that a defendant must be aware of the presence of an unintended victim to be guilty of assault on that victim, we do not read the principles which emerge from these cases so expansively. Birch supports the view that a single shot from a firearm can constitute an assault against more than one victim. The Birch court reversed the assault conviction because the unknown, unintended victim was not injured by the act. Birch does not address whether a defendant can be convicted of assault when his conduct results in injury to an unknown, unintended victim.
We note that Birch does not discuss criminal causation per se as it relates to an unintended victim. Nevertheless, the limitation of liability expressed in Birch to an uninjured, unknown victim is undeniably consistent with this principle.
This question was considered in People v. Lathus (1973) 35 Cal.App.3d 466, 470 [110 Cal.Rptr. 921] (Lathus) and In re Brian F. (1985) 167 Cal.App.3d 672 [213 Cal.Rptr. 195]. In Lathus, the defendant shot at a parked car and struck a person standing outside of it. The defendant claimed he saw no one near the car and had no intent to shoot anyone. The Fifth District found evidence that the defendant had shot at the car with "actual ... knowledge" that people were in or near it, so intent to commit a battery could be inferred. Although the court did find the defendant actually knew of the presence of potential victims, in its subsequent discussion of the general intent necessary for assault with a deadly weapon, the court stated: "[W]hen an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the act transcends recklessness, and the intent to commit the battery is presumed; the law cannot tolerate a deliberate and conscious disregard of human safety. Thus, if one deliberately employs a lethal weapon, such as a gun, with actual or presumptive knowledge that if utilized in the manner in which it is being used the infliction of serious bodily injury to another is very likely to occur, he is presumed to have intended the natural consequences of his deliberate act. (4) As Professor Perkins puts it: 'Intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire).' (Perkins on Criminal Law (2d ed.) ch. 7, section 1, p. 747.)
The Supreme Court in People v. Colantuono, supra, 7 Cal.4th at pages 219-220, rejected the defendant's claim that the instruction regarding presumed intent in Lathus created an unconstitutional burden-shifting presumption regarding his intent. While not approving the language, the Supreme Court concluded the statement properly described conduct constituting an assault. (Id. at pp. 220-221.)
"It would be anomalous to hold that a person who has injured another seriously by deliberately shooting a gun into a building or at a moving train or at or in the direction of a vehicle stalled on a public highway, can escape the consequences of his highly dangerous act by the bald assertion that he did not know that anyone was in the building or in the train or in or near the vehicle. Such a result is not required either by the Rocha opinion or common sense. On the contrary, after stating that the intent required for an assault with a deadly weapon is the intent to commit a battery, the Rocha court went on to say: '... the criminal intent which is required for assault with a deadly weapon and set forth in the instructions in the case at bench, is the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another. Given that intent it is immaterial whether or not the defendant intended to violate the law or knew that his conduct was unlawful. The intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm is not necessary.' (People v. Rocha, supra, 3 Cal.3d 893, 899, fns. omitted.)" (Lathus, supra, 35 Cal.App.3d at p. 470, fns. omitted, italics added.)
In In re Brian F., supra, 167 Cal.App.3d 672, 673, the defendant had been causing trouble at a party; at one point, he quickly accelerated his car in reverse and hit two people who were fighting behind him. The trial court found that the defendant either knew or should have known there were people behind his car to whom he was likely to cause great bodily injury by his conduct. (Id. at pp. 674-675.) The Fourth District rejected the defendant's argument that Lathus precluded a finding of intent to commit an assault based upon a presumption of knowledge, explaining: "Requiring 'actual knowledge,' as [defendant] uses the term, would permit aggravated and even lethal assaults without criminal liability, merely because the perpetrator was indifferent to either the circumstances or consequences of his or her actions. Intent may be presumed when the act is inherently dangerous and committed with conscious disregard of human safety. Therefore, it is sufficient that [defendant], under the circumstances, should have known his actions were very likely to inflict serious bodily injury to others." (Id. at p. 675, italics omitted.)
This would be better expressed: "[Intent] is established ...." (See People v. Colantuono, supra, 7 Cal.4th at p. 220.)
The court further observed that the defendant's act was, if anything, more indefensible than the conduct punished in Lathus (where the defendant shot at a vehicle parked beside the road), and that it was not extending Lathus "to a point which blurs the line between reckless conduct and the general criminal intent necessary to support a conviction for assault with a deadly weapon." (167 Cal.App.3d at p. 675, fn. 2.)
While these authorities apparently agree that mere recklessness cannot supply the intent necessary to constitute an assault, Lathus and Smith seem to disagree as to the precise state of mind a defendant must possess in order to be found guilty of an assault. However, the decisions appear to agree that a defendant cannot escape the consequences of his or her act by claiming that he or she was unaware of the victim's presence, if injury to that victim was the natural and probable consequence of the defendant's assaultive conduct.
Here, the trial court found the requisite intent to harm in its finding that assaults were committed against the police officers at whom appellant fired. As to Michael K., although appellant was not aware of his presence inside the hotel when she fired, the court found injury to Michael K. was indeed the natural and probable consequence of her deliberate action against the officers: "Certainly, if you fire in an urban area at an individual and a glass structure [is] behind that person you are firing at, the chances are certainly reasonable that the glass that's in the direction of your bullet can shatter causing it to hit people." Thus, the conviction for assault against Michael K. was supported by sufficient evidence.
Appellant last claims the reference by the trial judge to "ricocheting" of the bullet necessarily is inconsistent with the causation requirement we have elucidated. We disagree. First, there is some question that the court intended its comment in a literal way-that the bullet in fact, hit a surface before striking the door at the Sunrise Hotel. We note the court was supplied with photographs of the scene which depict the hotel directly behind the location of the officers at the time of the shooting. The direct proximity of the locations is also consistent with the testimony of Officers Brown and Moran. More importantly, even if Michael K.'s injury was the result of a ricocheting shot, we would still uphold the court's finding that the injury was a natural and probable consequence of appellant's willful act of shooting.
B. Punishment for the Assault on Michael K. Is Not Barred by Section 654
Appellant argues that section 654 required the court to stay the term imposed for the assault on Michael K. because it was predicated on the same act as the assaults against the police officers. We disagree.
Section 654 provides in relevant part that "An act or omission which is made punishable in different ways by different provisions ... may be punished under either of such provisions, but in no case can it be punished under more than one; ..." The statute bars multiple punishment based on a single act or indivisible course of conduct. (People v. Miller (1977) 18 Cal.3d 873, 885 [135 Cal.Rptr. 654, 558 P.2d 552].)
An exception exists when the defendant's act or course of conduct results in an act of violence against multiple victims. (People v. Champion (1995) 9 Cal.4th 879, 934-935 [39 Cal.Rptr.2d 547, 891 P.2d 93]; Neal v. State of California (1960) 55 Cal.2d 11, 20-21 [9 Cal.Rptr. 607, 357 P.2d 839] (Neal).) When a defendant's violent conduct injures multiple persons, the defendant may be separately punished for injuring each of those persons, notwithstanding section 654. (People v. Champion, supra, 9 Cal.4th at pp. 934-935.) Our Supreme Court has held that this multiple victim exception is consistent with section 654's purpose of ensuring "that the defendant's punishment will be commensurate with his criminal liability." (Neal, supra, "55 Cal.2d at p. 20.) As the court explained: "A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person." (Ibid.) Accordingly, "[s]ection 654 is not '... applicable where ... one act has two results each of which is an act of violence against the person of a separate individual.' [Citations.]" ("55 Cal.2d at pp. 20-21.)
Appellant contends this case is not governed by the multiple victims exception because "appellant's mens rea was specifically directed to the officers (the assault upon whom was punished in [c]ounts [5], [6], and [8]); and that the injury in question occurred not through design, but through convolution." (Fn. omitted.) This contention has no merit.
The multiple victims exception is not limited to defendants who commit a violent act with the intent to harm more than one person. It also applies when the defendant employs "a means likely to cause harm to several persons." (Neal, supra, "55 Cal.2d at p. 20; see also People v. McFarland (1989) 47 Cal.3d 798 [254 Cal.Rptr. 331, 765 P.2d 493]; People v. Prater (1977) 71 Cal.App.3d 695 [139 Cal.Rptr. 566].)
Thus, in the strikingly similar case of People v. Prater, supra, 71 Cal.App.3d at page 701, the Fifth District upheld multiple punishment for one discharge of a firearm that injured an intended and unintended victim. In Prater, the defendant fired a shot at his intended victim who was seated at a bar. (Id. at p. 699.) The bullet passed through his intended victim, injuring another bar patron. (Ibid.) The Fifth District rejected the defendant's contention that section 654 prevented him from being sentenced concurrently for these two separate assaults. (71 Cal.App.3d at p. 700.) Citing the multiple victim exception, the court concluded "[defendant's] single act resulted in violence against two individuals; hence, he was properly sentenced on both convictions of assault with a deadly weapon." (Id. at p. 699.) Here, appellant assaulted the police officers in a public area by discharging a firearm. As in Prater, this single act resulted in violence against the police officers and Michael K. The fact that appellant did not intend to injure Michael K. does not preclude the application of the multiple victims exception. It is sufficient that the means employed by appellant to commit the assault created a likelihood that others would be harmed, and resulted in Michael K.'s injury. (Neal, supra, "55 Cal.2d at p. 20.)
Our conclusion that multiple punishment for the multiple assaults is not barred by section 654 is entirely consistent with section 654's purpose of ensuring "that the defendant's punishment will be commensurate with his criminal liability." (Neal, supra, "55 Cal.2d at p. 20.) A defendant who employs a method of committing violence that is likely to endanger multiple persons or results in multiple injuries is more culpable than a defendant whose method only harms a single person. (Ibid.) Thus, we have no difficulty holding that the court properly punished appellant for the assaults on the police officers and the assault on Michael K. under the multiple victims exception to section 654.
C. Imposition of Multiple Section 12022.5 Enhancements Is Permitted
Appellant contends the juvenile court erred in imposing a firearm use enhancement pursuant to section 12022.5 on count 8, the assault with a firearm on Michael K., because the firearm use addressed in that count was the same as that which had already been punished by the enhancement imposed on count 5, the assault with a firearm on a peace officer. In imposing an additional firearm use enhancement the juvenile court relied on the rule set forth in King, supra, 5 Cal.4th at page 79 that "... a firearm-use enhancement under section 12022.5 may be imposed for each separate offense for which the enhancement is found true."
Section 12022.5, subdivision (a) (1) provides in relevant part: "[A]ny person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison ...."
We have already observed that in King, the Supreme Court overruled the long-standing rule of In re Culbreth, supra, 17 Cal.3d at pages 333-334, that "uses" of firearms contemplate separate transactions and cannot as a matter of law flow from a use "incident to one objective and effectively comprise an indivisible transaction, ..." (Id. at p. 333.) In such circumstances, "... section 12022.5 may be invoked only once and not in accordance with the number of victims. [Citation.]" (Id. at pp. 333-334) The majority in Culbreth determined that this result was required to advance the legislative purpose of 12022.5 "to deter the use of firearms on subsequent occasions." (17 Cal.3d at p. 333, italics added.)
The King court rejected Culbreth's conclusion, stating: "The Culbreth rule finds no support in the statutory language. Penal Code section 12022.5, subdivision (a), states only that 'any person who personally uses a firearm in the commission or attempted commission of a felony' shall receive the additional prescribed punishment. Nothing limits the enhancements to one for every separate occasion, whatever that might mean." (King, supra, 5 Cal.4th at p. 77.)
The Supreme Court in King also found the Culbreth majority's deterrence analysis flawed, expressing doubt that "... the Legislature intended either deterrence or punishment to cease with the first victim. We think it far more likely, and consistent with the actual statutory language, that the Legislature intended to deter (and undoubtedly to punish) firearm use against multiple victims more strongly than firearm use against a single victim." (King, supra, 5 Cal.4th at p. 78.) The court responded to the defendant's argument that section 654's prohibition against multiple punishment mandates the Culbreth rule: "Penal Code section 12022.5 simply enhances the term to be imposed for an offense; when multiple terms are imposed for multiple offenses, Penal Code section 654 exists to limit the number of terms which may be executed. However, ... when Culbreth was decided, and still today, the limitations of section 654 do not apply to crimes of violence against multiple victims. The Culbreth decision does not justify a conclusion that the Legislature intended that a term enhancement be treated more restrictively for multiple punishment purposes than the term for the underlying offense." (5 Cal.4th at p. 78.)
In overruling Culbreth, the King court explained, "... appellate courts (and undoubtedly trial courts) have found it very difficult, if not impossible, to consistently implement the [Culbreth] rule. To the extent a consistent interpretation has emerged, it is illogical." (King, supra, 5 Cal.4th at p. 77.)
People v. Raby (1986) 179 Cal.App.3d 577 [224 Cal.Rptr. 576], which is cited extensively in King, was blunt in its criticism of Culbreth. By focusing on the "occasions" of firearm use the Culbreth rule "reward[ed] [defendant] for the scope of his original criminal intent and permits the imposition of only two consecutive sentences for firearm use enhancements-one for each store...." (Id. at p. 591.) "A test based in part on intent and objective is seriously flawed for several reasons: It favors those who harbor the graver criminal intent over those whose crimes are, in part, largely reactions to circumstances; worse, the test is so subjective that it approaches arbitrariness in its application." (Id. at p. 583.)
Appellant nevertheless claims multiple use enhancements were improper because the "purpose or action" toward which the firearm use in count 8 was directed was not the crime charged in that count (the Michael K. assault), but rather the assaults on the officers, which had been previously punished by the enhancement imposed on count 5. Moreover, she argues that the rationale underlying the King holding militates against imposing count 8's use enhancement because the purpose of the statute is wholly irrelevant where the defendant is accused of assaulting multiple victims through a single shot. Appellant points out she made no conscious choice to continue her "use" of the gun after the assault on the officers; rather, the injury to Michael K. was beyond her control to stop once she shot her gun at the officers. As King disagreed with Culbreth, we reject appellant's claim that the statutory definition of "use" found in section 12022.5, subdivision (a) (1) is incompatible with the juvenile court's finding. Section 12022.5 enhances punishment for the defendant who "uses a firearm in the commission or attempted commission of a felony, ..." The King court observed that the majority and the dissent in Culbreth cited the same definition of "use": " ' "[U]se" means, among other things, " 'to carry out a purpose or action by means of,' to 'make instrumental to an end or process,' and to 'apply to advantage.' " [Citation.]' " (King, supra, 5 Cal.4th at pp. 71, 77, quoting In re Culbreth, supra, 17 Cal.3d at pp. 334, 336.) However, the King court noted the Culbreth majority had incorrectly converged its analysis on the criminal objective or goal of the defendant while the dissent properly focused on the results of the criminal enterprise, particularly the separateness of each crime committed. (King, supra, 5 Cal.4th at pp. 71-72, 77.) The court concluded that "... the dissent has the better of the argument." (Id. at p. 77.)
Appellant's assault of Michael K. squarely fits within this definition of "use." Appellant carried out a " ' "purpose or action by means of" ' " a firearm. The " ' "end or process" ' " was an act of violence against Michael K. through the discharge of a firearm. The gun was " ' "instrumental" ' " to that " ' "end or process." ' " Were we to conclude otherwise, we would necessarily accept by implication the discredited Culbreth view that the overall criminal objective for the occasion of firearm use controls. In the final analysis, as to each victim upon whom the assault was inflicted, appellant "used" a firearm.
Moreover, imposing an increased sentence through the imposition of multiple enhancements for those assaulting multiple victims with a firearm is entirely consistent with the presumed goal of deterrence in section 12022.5, and is premised on the same analysis which led the King court to overrule Culbreth. Is not a goal of deterring firearm use furthered by exposure to a longer sentence where discharge of the firearm has correspondingly increased the probability of causing harm? Committing assaults against multiple victims using a firearm carries with it greater criminal culpability than committing a single assault with the same weapon. " 'The purpose of section 12022.5 is to discourage the use of firearms, and more fundamentally, to prevent people from being killed. [Citations].' " (People v. Ross (1994) 28 Cal.App.4th 1151, 1159 [33 Cal.Rptr.2d 894], quoting People v. Read (1983) 142 Cal.App.3d 900, 906 [191 Cal.Rptr. 305]). Where multiple victims result from the discharge of a firearm the imposition of multiple use enhancements furthers this legislative goal.
Appellant contends further that the perceived punishment function of the statute-condemnation of a defendant's refusal to abandon his weapon before encountering a second victim-is also inapplicable to the present situation. Appellant avers that neither King nor Culbreth considered the imposition of a firearm use enhancement where two persons were assaulted by one discharge, and that the rule suggested by respondent would be one of "strict liability" having nothing to do with actual culpability, which, according to appellant, is a position the Supreme Court has refused to endorse.
We find this argument equally unpersuasive. A legislative purpose of imposing increased sentences as punishment for criminal acts against multiple victims is undoubtedly furthered by multiple enhancements. If more than one person is injured as a "direct, natural and probable consequence" of the willful act of shooting a gun, for whose injury should the court choose to allot punishment for the "use" of that weapon? Is the conduct less reprehensible as to one victim of assault than it is as to another? No one can refute that firing a weapon in a heavily populated urban area carries with it a greater propensity to injure unintended victims. Furthermore, firing a weapon at law enforcement officers is unquestioningly likely to provoke return suppression fire carrying with it grave risks to the innocent public as well as to the shooter. Given these considerations, it is wholly consonant with a presumed alternative legislative goal of punishing the illegal use of firearms to expose those who act in the face of such factors to increased punishment. We conclude there is nothing in section 12022.5 which would command adherence to the view suggested by appellant.
Therefore, the rationale of King, both from punishment and deterrence approaches, supports multiple enhancements where a single shot from a firearm effectuates an assault against more than one individual. Our conclusion is not a yielding to body count or shell count jurisprudence as each side to this case respectively cautions. Instead, the result we reach is dictated by the juristic footprints left by King, and by accepting either deterrence or punishment as our lawmakers' objective in enacting section 12022.5. There simply is no statutory language from which one can conclude each crime committed here should not be subject to firearm use enhancement. Indeed, logic and precedent command otherwise.
Whether anchored in a desire to deter or punish, or both, the Legislature is unmistakenly exhibiting a growing intolerance for criminal conduct accompanied by the possession or use of firearms. (See, e.g., section 12022.53.)
V. Disposition
The judgment of conviction and sentence are affirmed.
Lambden, J., concurred. CONCURRING AND DISSENTING:
KLINE, P. J.,
Concurring and Dissenting.-I agree with my colleagues that the evidence is sufficient to convict appellant for the assault against Michael K., though my reasoning is somewhat different from theirs, and that punishment for that assault is not barred by Penal Code section 654. However, I do not agree that a firearm use enhancement pursuant to section 12022.5 may properly be imposed in connection with that assault.
I.
The majority concludes that the conviction of the assault on Michael K cannot be sustained on the doctrine of transferred intent because assault is not a specific intent crime, therefore " 'there is no specific intent to transfer.' " (Maj. opn., ante, at p. 1265, quoting People v. Lee (1994) 28 Cal.App.4th 1724, 1737 [34 Cal.Rptr.2d 723].) Abjuring the doctrine for this reason, the majority sustains the conviction on the ground that the evidence is sufficient to support direct liability for the assault on the unintended victim.
The validity of the majority's reasoning, and that of the opinions upon which it relies, turns on the abstract and somewhat misleading distinction between specific and general intent. As many have noted, the different meanings ascribed in the criminal law to the word "intent" is the source of great confusion. (Perkins & Boyce, Criminal Law (3d ed. 1982) section 3, pp. 851-854; LaFave & Scott, Criminal Law (1972) section 28, p. 201 et seq.) The distinction sought to be drawn between general and specific intent (which the Model Penal Code has abandoned) exemplifies the problem. "Sometimes 'general intent' is used in the same way as 'criminal intent' to mean the general notion of mens rea, while 'specific intent' is taken to mean the mental state required for a particular crime. Or, 'general intent' may be used to encompass all forms of the mental state requirement, while specific intent' is limited to the one mental state of intent. Another possibility is that 'general intent' will be used to characterize an intent to do something on an undetermined occasion, and 'specific intent' to denote an intent to do that thing at a particular time and place." (LaFave & Scott, Criminal Law, supra, section 28, pp. 201-202, fns. omitted.)
All further undesignated statutory references are to the Penal Code.
Model Penal Code section 2.02. This section articulates the kinds of culpability that may be required for the establishment of criminal liability. It sets forth four levels of culpability: purpose, knowledge, recklessness and negligence. One of these levels of culpability must be proved with respect to each "material element" of the offense, which may involve (1) the nature of the forbidden conduct, (2) the attendant circumstances, or (3) the result of the conduct.
The most common usage of the phrase "specific intent," and the use adopted by the cases the majority relies upon, "is to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime." (LaFave & Scott, Criminal Law, supra, section 28, p. 202; see also, Perkins & Boyce, Criminal Law, supra, section 3, pp. 851-854.) While this definition may be useful for some purposes, the distinction between general and specific intent does not provide a satisfactory justification for necessarily barring use of the concept of transferred intent where the offense at issue does not require specific intent. Where, as in the case of assault, the definition of a crime requires the commission of some prohibited act, the defendant's physical commission of that act must be voluntary. "To some extent, then, all crimes of affirmative action require something in the way of a mental element-at least an intention to make the bodily movement which constitutes the act which the crime requires." (LaFave & Scott, Criminal Law, supra, section 28, p. 201.) Thus, Professor LaFave persuasively makes the case for "transferred recklessness" in situations similar to that here, despite the absence of specific intent.
Among the various situations he discusses, LaFave posits the following case: "A drives a car through town so fast that he creates a high degree of risk of death to other motorists (a class of persons), but not to people within buildings along his route. He crashes into what appears to be an ordinary pleasure vehicle but which actually is full of explosives. The resulting explosion causes a window to shatter over C, sitting near the window; the glass cuts C's artery, causing death." (LaFave & Scott, Criminal Law, supra, section 35, p. 255.) The injury to C was neither foreseeable nor the natural and probable consequence of A's conduct. LaFave agrees that if negligence to the person killed should be required in transferred intent cases, criminal liability could not be imposed on A, because to do so would unjustifiably extend the criminal law beyond tort law, where a party is not liable to the "unforeseeable plaintiff." (Id., at pp. 255-256.) Thus there can be no " 'transferred negligence' " in the criminal law. There can, however, be " 'transferred recklessness:' " "by which the defendant's conscious awareness of the danger to one person would suffice when another person is harmed and the defendant was [at least] negligent as to that person. For example, A recklessly fires a gun in the general direction of B, of whose presence A is actually aware, but the shot hits C, who A did not see but should have seen. This would be an appropriate case for what some would call 'transferred recklessness'; more appropriately, it might be said that here A is the legal cause of C's injury." (Id., at p. 256, italics in original.) In effect, this describes the findings of the trial court in this case.
The trial judge acknowledged appellant was unaware Michael K. was on the scene. He discounted that factor, however, because of the greater importance he properly ascribed to the fact that appellant should have known others might be present and endangered by his purposeful conduct, which therefore recklessly endangered others, not just his intended victim. "Recklessness," as I use the term, involves the conscious disregard of a substantial and unjustifiable risk. 2 Because it includes this element of awareness, recklessness is very different from criminal negligence. Indeed, "recklessness" and "negligence" are mutually exclusive terms. Negligence includes any conduct, other than that which is intentionally or recklessly disregardful of the interests of others, which falls below the standard established by law for the protection of others against the unreasonable risk of harm. (Model Pen. Code section 2.02(2) (c); Perkins & Boyce, Criminal Law, supra, section 2B, p. 849, and authorities there cited.)
I see no reason why the conscious disregard of a substantial and unjustifiable risk embodied in recklessness cannot be as easily "transferred" as specific intent. Not only does this more accurately describe the reasoning of the trial judge, but it more realistically comports with the reality presented by a situation in which the manner and fact of injury to an unintended victim is not highly predictable and does not constitute a natural and probable consequence of the criminal conduct at issue, though the actor was or should have been aware of the substantial and unjustifiable risk his conduct created. 3 The trial court made such a finding in this case and the finding is supported by the evidence. II.
While I agree with my colleagues that the conviction for assault of Michael K is supported by sufficient evidence, I cannot agree that it was proper to impose a firearm enhancement pursuant to Penal Code section 12022.5 with respect to that count, because that enhancement had already been imposed with respect to the assault on a peace officer. In my view there is no support in People v. King (1993) 5 Cal.4th 59 [19 Cal.Rptr.2d 233, 851 P.2d 27] nor in reason to impose multiple firearm enhancements where, as in this case, the defendant fired but one shot.
Neither King nor In re Culbreth (1976) 17 Cal.3d 330 [130 Cal.Rptr. 719, 551 P.2d 23] (nor any other case, so far as I am aware) involved the application of multiple firearm use enhancements where the defendant shot only one bullet. Indeed, the majority in King explicitly declined to decide "the propriety of multiple enhancements when the same act results in multiple victims, such as when one bullet hits two or more persons." (People v. King, supra, 5 Cal.4th at p. 79.) While the court left that question "to another day," I believe the rationale of King compels the conclusion that firearm use enhancements may not be applied to multiple counts involving multiple victims, all of whom were injured or killed by the same bullet.
The gravamen of King is its adoption of the criticism of Culbreth set forth by Justice Crosby in People v. Raby (1986) 179 Cal.App.3d 577 [224 Cal.Rptr. 576], which railed against the "grotesqueness" of a rule that imposed a less severe punishment on a defendant who did not renounce "the chance to abandon a criminal scheme before encountering additional victims ... or seiz[ed] an opportunity to commit additional offenses on unexpected victims." (Id., at p. 590, quoted in People v. King, supra, 5 Cal.4th at p. 74.) That problem does not arise where a defendant fires a single shot that injures an unexpected as well as an intended victim. Imposing a single enhancement in that situation is not grotesque or unreasonable in any way, because it does not "favor[] those who harbor the graver criminal intent over those whose crimes are, in part, largely reactions to circumstances." (Raby, supra, at p. 583; quoted in King, supra, at p. 73.) Neither deterrence nor any other legitimate penal purpose is served by imposing multiple enhancements that additionally penalize a defendant who shoots a single bullet he intends to injure a single person. Appellant here is thus in a very different position from the defendant in King, who shot three times at two victims, or the defendant in Culbreth, who used his firearm twice in the commission of two murders. In this case, there was in actual fact but one firearm use.
My colleagues conclude that a single actual "use" can nevertheless constitute multiple "uses" under Penal Code section 12022.5 on the basis of an unduly expansive concept of the definition of the term "use" that was adopted in King. In this respect, the King majority endorsed Justice Clark's dissent in Culbert, which declared that " ' "[u]se" means, among other things, "to carry out a purpose or action by means of," to "make instrumental to an end or process," and to "apply to advantage." [Citations.]' ... Under section 12022.5, the 'purpose or action,' 'end or process' for which a firearm is used is the commission of one or more of the crimes specified therein. Accordingly, for the purposes of the section, petitioner used his firearm twice, committing two murders. By its terms the statute applies to '[a]ny person who uses a firearm in the commission of ... murder ....' Nothing in the statute indicates that it is applicable to one of petitioner's murders but not the only one." (In re Culbreth, supra, 17 Cal.3d at p. 336 (dis. opn. of Clark, J.).)
The majority concludes that Justice Clark's words mandate the imposition of multiple enhancements in this case. According to my colleagues, appellant's assault of Michael K. fits squarely within Justice Clark's definition of "use" because appellant "carried out a ' " 'purpose or action by means of' " ' a firearm.... The gun was ' " 'instrumental' " ' to that ' " 'end or process.' " ' " (Maj. opn., ante, at p. 1274.) The majority's error lies in its unarticulated assumption that the "purpose" of the action to which Justice Clark referred need not relate to the "end" achieved. My colleagues believe that so long as the "action" had any criminal "purpose" it is immaterial whether it related to the result accomplished; so that a single shot may constitute multiple "uses" even if one of the "ends" was clearly not within the actor's "purpose" or contemplated by his "action." I do not believe that this is what Justice Clark had in mind. Justice Clark reasonably assumed that the purpose related to the end achieved, because this is ordinarily the case, as it was in Culbreth and King and virtually every case in which the number of shots corresponds to the number of victims. 4 Justice Clark's reasonable assumption does not, however, apply to the unusual case, such as this one, where more than one victim is unintentionally killed by a single shot, so that one of the ends of the action was not within the actor's purpose. The majority in King understood that Justice Clark was not referring to that unusual situation. In the course of adopting Justice Clark's view, the King court stated as follows: "By any definition, [the] defendant [in King] 'use[d]' a firearm when he shot and killed Enciso; he used it again when he shot Manlove. Similarly, Culbreth used a firearm each time he killed one of his victims. As noted in People v. Raby, supra, 179 Cal.App.3d at page 584, the victims in Culbreth 'were not killed with the same bullet.' The statutory language does not limit the number of enhancements in that situation." (People v. King, supra, 5 Cal.4th at p. 77, italics added.)
Because both assume that the purpose of the firearm use was the end achieved, Justice Clark's dissent in Culbreth and the majority opinion in King imply that the a "use" does not occur for purposes of Penal Code section 12022.5 where an unintended victim is injured or killed by the same bullet that injures or kills the intended victim, because the necessary "purpose" is missing with respect to the injury to the unintended victim. While the language of section 12022.5 does not limit the number of enhancements that may be imposed in the situation in which multiple shots injure multiple victims, as intended, it does limit the number of enhancements that may be imposed where a single shot injures not just the intended victim but unexpectedly also injures another. In that event there is but one firearm "use" for which a penalty enhancement may be imposed.
Like the court in Raby, the majority in King also found fault with Culbreth because the test under the rule in that case "is so subjective that it approaches arbitrariness in its application." (People v. Raby, supra, 179 Cal.App.3d at p. 583, quoted in People v. King, supra, 5 Cal.4th at p. 73.) As Justice Crosby noted in Raby, the problem of determining what constitutes a single "occasion" of drug (or firearm) use, has "threatened judicial sanity and spawned distinct lines of authority." (179 Cal.App.3d at p. 585.) Justice Crosby agreed, however, that even under Culbreth there is no definitional problem where there is only one shot, because no matter how one defines "occasion," "a single gunshot which injures two victims constitutes but one occasion of gun use." (Id., at p. 586, italics added.) Therefore, unlike the Culbreth rule, a rule allowing the imposition of only one firearm use enhancement for the shooting of a single bullet that unintentionally injures a second person will not be "impossible to implement in a nonarbitrary fashion." (King, supra, at p. 79.)
For the foregoing reasons, I would set aside the firearm use enhancement imposed in connection with the assault on Michael K., but would affirm the judgment in all other respects.