Filed 12/30/19 P. v. Crosby CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK SHANNON CROSBY,

Defendant and Appellant.

A151328

(Solano County

Super. Ct. No. VCR224048)

Defendant Mark Shannon Crosby appeals a judgment entered upon a jury verdict finding him guilty of multiple counts, including attempted voluntary manslaughter, assault with a semi-automatic firearm, and shooting from a motor vehicle. He contends the trial court erred in failing to instruct the jury sua sponte on transferred self-defense, that it erred in excluding character evidence, that the trial court and the prosecutor committed misconduct, that he was wrongly convicted of both greater and lesser included offenses, and that the court committed sentencing error. We will reverse the convictions for these lesser included offenses, remand for resentencing, and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Prosecution’s Case
II.
A. Events at the Coconut Grove
B.
On the night of June 8, 2015, defendant was at the Coconut Grove, a bar in Vallejo. Joshua Hernandez, David Hamilton, Stephon Bradley, and “Maury” were drinking and playing dominoes while others, including defendant, watched and bet on the game.

Close to closing time, several patrons, including Hamilton, Bradley, and defendant, became involved in a disagreement about the dominoes game. The argument escalated to shoving, and someone threw a metal napkin dispenser. According to Corel Cooper, one of the bartenders, defendant said he wanted another dominoes game so he could win some of his money back. Cooper heard one of the men tell defendant to come outside, which she interpreted to mean an invitation to fight. She asked the security guard to help her separate them. She kicked Hernandez, Hamilton, and Bradley out of the bar and locked the door, and she kept defendant and Maury inside with her until the others had left the parking lot. Cooper heard defendant ask another employee to bring his car closer to the door, and she thought she heard him ask to have his gun brought out of the glove box.

Another bartender, Azalia Ruiz, also witnessed the events. She testified that several regular customers were at the Coconut Grove—apparently Hamilton, Hernandez, and Bradley—as well as some “newer faces,” including defendant. As the men were playing dominoes close to closing time, they were talking “smack,” then began arguing about the fact that defendant had lost a large sum of money ($1,100 or $1,200) on the game, and throwing a napkin holder and stools. She heard the men mock defendant for wearing flip flops on his feet. Ruiz kicked out “the familiar faces”—Hamilton, Hernandez, and Bradley—because they were talking about “popping trunks and grabbing guns.” They were drunk and angry, and Ruiz did not want them to shoot anyone. She locked the door to keep the fight from continuing in the parking lot, believing Hamilton, Hernandez, and Bradley were ready to attack someone. She attempted to comfort a young man who remained inside—apparently defendant—about having lost his money in the game.

C. The Shooting
D.
Hernandez testified that after he, Hamilton, Bradley, and Maury were asked to leave, he drove away from the bar. Hernandez called one of the others to make arrangements to continue socializing, and they met up by a Safeway store near the freeway, not far from the Coconut Grove. The group stood outside their cars talking about where to go next. Ruiz pulled up and talked with them, apologizing for having to kick them out and making sure they were all right. As they spoke, Hernandez testified, someone drove by in a silver or gray car and shot them, then drove away. Hernandez heard multiple gunshots, and was shot in the knee, back and hip.

Ruiz also testified about the shooting. After defendant was allowed to leave the bar, Ruiz left and drove away. At a Safeway store across the freeway from the Coconut Grove, she saw the men she had kicked out and stopped to speak with them. She was upset about what had happened at the bar, and they apologized, then hugged her. She saw a silver or gray car approaching slowly along the street, on the same route she had taken from the Coconut Grove. Ruiz heard about nine gunshots and bullets began “flying” out of the passenger window of the car. She was shot twice, and her leg was injured.

Hamilton suffered a gunshot wound in the upper torso.

A couple of weeks later, Ruiz told a police officer she thought the men might have been parked by the Safeway waiting for defendant because it was on the normal route from the Coconut Grove to Highway 80 toward Richmond.

Police officers who arrived found no weapons at the scene.

III. Defense Case
IV.
Defendant did not dispute that he was responsible for the shootings, but he took the position that he acted in self-defense. He testified on his own behalf as follows.

When defendant arrived at the Coconut Grove the evening of the shootings, he recognized Demaury Washington. Defendant had a couple of drinks, then went to watch the game of dominoes. He lost a couple of hundred dollars betting on the game, and he was upset about it. Some of the people laughed at the flip flops he was wearing, and defendant mentioned that he was from Richmond. During the game, Bradley made a comment about someone wearing flip flops being “ ‘stripped and popped,’ ” which defendant understood to refer to being robbed and killed. He asked Bradley if that was a threat, and Bradley said, “ ‘Take it how you want to,’ ” and approached defendant in a threatening manner. Bradley grabbed defendant by the collar and tried to rip off a chain he was wearing around his neck, and defendant punched Bradley in the jaw. Some people in the bar tried to hold Bradley back, and Bradley, Hamilton, and Hernandez were kicked out of the bar. Before they left, defendant heard Bradley tell Hernandez and Hamilton to go to the trunk and get the guns. Ruiz told defendant she was keeping him in the bar for his safety. Defendant was frightened.

When defendant was allowed to leave the bar, he removed his firearm from the trunk of his car and put it between the seat and the console, then left the parking lot. He made a U-turn to make sure no one was following him, and decided to go to Richmond. He turned left on a street that would lead him to the freeway and saw three or four cars and some people standing on the street. One of the people flagged him down, and he stopped. He saw that it was Hamilton. Defendant rolled his window down and Hamilton approached. Defendant saw Hamilton reach for a firearm on the right side of his hip. Defendant grabbed his gun and began firing it, then drove off. He was panicking, and he did not know if he had hit anyone. He got on the freeway, and when he got to the Carquinez Bridge, he threw the gun and some shell casings over it. Defendant believed he needed to fire the gun to protect his life.

V. Verdict and Sentence
VI.
Defendant was charged with the attempted murder (Pen. Code, §§ 187, subd. (a) & 664) of Ruiz (count 1), Hamilton (count 5), and Hernandez (count 9); assault with a semiautomatic firearm (§ 245, subd. (b)) on Ruiz (count 2), Hamilton (count 6), and Hernandez (count 10); shooting from a motor vehicle at another person (§ 26100, subd. (c)), specifically Ruiz (count 3), Hamilton (count 7), and Hernandez (count 11); and shooting from a motor vehicle (§ 26100, subd. (d); counts 4, 8, & 12); as well as various enhancement allegations.

The jury acquitted defendant of all charges related to Hamilton, including the lesser included offense of attempted voluntary manslaughter (§§ 192 & 664). As to the charges related to Ruiz and Hernandez, the jury returned identical verdicts finding defendant not guilty of attempted murder; guilty of the lesser included offense of attempted voluntary manslaughter; guilty of assault with a semiautomatic firearm; guilty of shooting from a motor vehicle at the victim; and guilty of shooting from a motor vehicle, with enhancements that he personally discharged a firearm and caused great bodily injury to Ruiz (count 4) and Hernandez (count 12); and finding true a variety of firearm enhancements.

Defendant moved for a new trial based in part on the theory that the trial court erred in failing to instruct the jury sua sponte on the doctrine of transferred self-defense. The trial court denied the motion.

The court sentenced defendant to the midterm of five years for count 3, shooting from a motor vehicle at Ruiz (§ 26100, subd. (c)), and imposed an additional term of 25 years to life for a firearm enhancement (§ 12022.53, subd. (d)), with concurrent or stayed terms for the other counts and enhancements, for a total term of 30 years to life.

DISCUSSION

I. Transferred Self-Defense
II.
Defendant contends the trial court erred in failing to instruct the jury sua sponte on the principle of transferred self-defense. “It is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence.” (People v. Salas (2006) 37 Cal.4th 967, 982.)

The Attorney General contends defendant forfeited this claim by failing to request such an instruction below. (See People v. Enriquez (1977) 19 Cal.3d 221, 228, disapproved on another point in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3 [absent a request, trial court not required to instruct on specific points developed out of particular facts presented at trial]; see also People v. Welch (1999) 20 Cal.4th 701, 757 [if court gives instruction correct in law, but party complains it is too general or incomplete, he must request additional instruction to preserve error for review].) But the question before us is whether the court had the duty to instruct the jury on transferred self-defense sua sponte—that is, in the absence of a request. We will consider that issue on the merits.

The doctrine of transferred self-defense was set forth in People v. Mathews (1979) 91 Cal.App.3d 1018 (Mathews). The facts in Mathews are closely analogous to those here. The defendant there was convicted of the voluntary manslaughter of Donald Silva and discharging a firearm at a vehicle. (Id. at p. 1021.) At the time of the shooting, Silva was in a car with Darelle Ghormley, with whom the defendant had had a dating relationship. (Id. at p. 1021.) The defendant testified that Ghormley and two of his friends had raped her, causing her to fear for her life. (Id. at pp. 1021–1022.) The defendant had occasion to be in a car that pulled alongside the car occupied by Silva and Ghormley; she testified that she saw Ghormley roll down the car window and point a gun at her. (Id. at p. 1022.) The defendant fired a gun, killing Silva. (Ibid.)

On appeal, the defendant contended the trial court should have instructed the jury sua sponte on the doctrine of transferred self-defense. (Mathews, supra, 91 Cal.App.3d at p. 1023.) The court held that “the doctrine of self-defense is available to insulate one from criminal responsibility where his act, justifiably in self-defense, inadvertently results in the injury of an innocent bystander.” (Id. at p. 1024; accord People v. Curtis (1994) 30 Cal.App.4th 1337, 1357 [“under the doctrine of transferred intent, self-defense may also apply where the defendant intends to injure or kill the person who poses the threat, but inadvertently kills an innocent bystander instead”]; People v. Levitt (1984) 156 Cal.App.3d 500, 507, overruled on another ground in People v. Johnson (2016) 62 Cal.4th 600, 649, fn. 6.) However, over a dissent, the Mathews court went on to conclude that under the circumstances of the case, there was no duty to provide the instruction sua sponte. (Mathews, at p. 1024; see id. at pp. 1028–1029 (dis. opn. of Reynoso, J.).) The court noted that a trial court has the duty to instruct sua sponte on principles closely and openly connected to the facts, including principles connected to defenses, that are necessary for the jury’s understanding of the case. (Id. at p. 1024.) In that case, however, neither party contested whether the defendant’s perceived fear for her life could insulate her from liability for the death of Silva, an innocent third party; rather, each party assumed that it could. (Id. at p. 1025.)

Moreover, the appellate court in Mathews noted, the trial court had provided the standard instructions regarding self-defense, which were sufficient for the jury to decide the issue before it. (Mathews, supra, 91 Cal.App.3d at p. 1025.) Specifically, it rejected the defendant’s argument that CALJIC No. 5.13 suggested that, to qualify as a justifiable homicide, the “ ‘person killed’ ” must have been the unlawful aggressor. It explained, “[t]o the contrary, the instruction merely advises that homicide is justified when the unlawful aggressor is the person killed. It does not state that homicide is unjustified where the unlawful aggression of one results in the inadvertent death of another. Moreover, the court did instruct (CALJIC No. 5.30) that ‘[i]f the right of self-defense exists, it is a complete defense to any crime committed during the exercise of the right.’ ” (Mathews, at p. 1025.) The court therefore concluded there was no duty to instruct sua sponte on transferred self-defense. (Ibid.)

We likewise conclude the instructions adequately informed the jury of the applicable principles. We bear in mind that we look to the jury instructions as a whole, not to individual instructions in isolation, to determine whether the jury was adequately instructed, and we consider the arguments of counsel to assess the probable impact of the instructions on the jury. (People v. Young (2005) 34 Cal.4th 1149, 1202.)

Like the jury in Mathews, the jury here received standard self-defense instructions. Among them, it was instructed that “Self-defense is a defense to the crimes charged in Counts 1 through 12, and the lesser included offense[s],” and that a defendant acts in lawful self-defense if he “reasonably believed that he was in imminent danger of suffering bodily injury,” he “reasonably believed that the immediate use of force was necessary to defend against that danger,” and he “used no more force than was reasonably necessary to defend against that danger.” (CALCRIM No. 3470, italics added.) This instruction is virtually identical to that in People v. Vallejo (2013) 214 Cal.App.4th 1033, 1038–1039 (Vallejo). The appellate court there concluded an instruction on transferred self-defense was not required because “other instructions made clear that appellant was not guilty of shooting from a vehicle if he acted in self-defense, irrespective of whether he had inadvertently shot an innocent bystander.” (Id. at p. 1039.) Moreover, the jury here was informed of the difference between complete self-defense and imperfect self-defense and told that, “If you conclude the defendant acted in complete self defense, his action was lawful, and you must find him not guilty of any crime.” (CALJIC No. 604, italics added.) Nothing in these instructions suggests the defense is limited to actions taken against the person who endangered defendant. Indeed, the only evidence of an imminent danger to defendant was Hamilton’s action in pulling out a gun, but the jury was explicitly told that self-defense could apply to all counts, which necessarily included those relating to Hernandez and Ruiz.

Moreover, defense counsel argued, “[I]f you believe that Mark Crosby acted in self defense, he’s not guilty of any of the charges,” and suggested the evidence was consistent with defendant “shooting at Mr. Hamilton, missing him with shots, . . . ending up shooting these other folks.” The prosecutor did not suggest the defense was available only as to the charges relating to Hamilton; rather, he acknowledged that the defense could apply to all charges, and argued that defendant did not act in self-defense at all. The prosecutor argued that the evidence showed Hernandez was almost 30 feet from where Hamilton was shot and argued that the physical evidence showed that defendant fired while driving by the scene rather than at one location, as defendant had testified, but he did not suggest that if defendant shot Hernandez inadvertently while trying to defend himself from Hamilton, the defense of self-defense was unavailable to him.

Even if the trial court should have instructed the jury on transferred self-defense, the error was harmless. In connection with its guilty verdicts for assault with a semiautomatic firearm on Ruiz and Hernandez, the jury found true the additional allegations that defendant, “with the intent to do so, inflicted great bodily injury on [Ruiz and Hernandez].” (Italics added.) The findings that defendant intended to inflict great bodily injury are inconsistent with a conclusion that defendant shot Ruiz and Hernandez inadvertently while trying to defend himself from Hamilton. (See Vallejo, supra, 214 Cal.App.4th at p. 1039 [no prejudice in failing to instruct on transferred self-defense where another jury finding was inconsistent with theory that appellant inadvertently shot victim in self-defense].)

III. Judicial Misconduct
IV.
On several occasions, the trial court asked questions directly of witnesses during trial. Defendant contends that in so doing, the court committed misconduct because it created the impression it was aligning itself with the prosecution.

The Court’s Questioning

Cooper testified on direct examination that after the fight in the Coconut Grove, she kicked the regular customers out and kept defendant in the bar with her. The court interposed to ask her a number of questions: what specific words were used during the argument, who said that “[t]he money isn’t an issue,” whether defendant was the person who said that, and who wanted to have another game of dominoes. In response, Cooper testified that it was defendant who said the money wasn’t the issue and who wanted another game. At the end of Cooper’s testimony, after she had testified on cross-examination that she did not see any firearms that evening, the court asked her to confirm that she did not see any guns that night, and elicited testimony that Cooper never saw anyone hold any weapon other than a napkin holder and did not hear any threats.

At the end of Ruiz’s testimony, the court questioned her about the events of the evening. It elicited testimony that Ruiz knew patrons gambled on the dominoes game; that she saw no money being exchanged that evening; that the person she locked in the bar told her he had lost about $1,200; that he was angry about losing the money and that was what the fight was about; that when the patrons were fighting, they were hurling insults about the money and that someone said something like, “you thought you were going to come in here wearing flip flops and take someone’s money”; that the person she locked in the bar left before she did; that it took her only a few minutes to get to the place where the shootings took place; that when she got there, someone was wiping up blood; and that shortly after the others apologized, defendant’s car approached. Ruiz had already made most or all of these points in her testimony.

After David McLaughlin, a police officer who responded to the scene, testified that Hernandez told him that someone from the bar drove down the street in a silver car, slowed down as he drove by, and opened fire on the group, the court referred to this testimony and asked whether Hernandez had described whether the windows were open. The officer said he did not know whether the window was up or down, and that Hernandez had just said “the guy from the club pulled up in a silver Mercedes, slowed[] way down, and opened fire,” and “fired multiple rounds and floored it southbound past them after he had dumped a bunch of rounds at them.” The court again elicited testimony that Hernandez’s statement was that he recognized the driver as being from the club, and that the car slowed down.

As another police officer, Richard Wanzie, was testifying, the prosecutor stated that he had several photographs to be marked. While they were being marked, the trial court questioned Wanzie about the evidence at the scene. The court asked if Wanzie had collected evidence at the scene, and it elicited testimony that Wanzie did not see a firearm or ammunition, that medical personnel would normally alert an officer if they found a firearm while treating victims, that no one alerted him to a firearm, that he did not see any broken automobile glass, and that he did not see any of the vehicles on the scene being moved.

While defendant was testifying, the trial court interrupted the prosecutor’s cross-examination to ask where the shell casings he threw over the bridge had come from. When defendant replied, “They came from my firearm,” the trial court asked, “From that event?” Defendant replied, “Yes,” and the court asked, “So the casings were not there before this event on 14th Street?” Defendant replied “No.”

Defendant also points out that the trial court interjected several times while he was testifying to direct him to limit his responses to answering his attorney’s questions.

Analysis

Defendant contends that, by inserting himself into the questioning in this manner, the trial court effectively aligned itself with the prosecution and committed misconduct.

A trial judge has both the right and the duty to ensure the evidence is fully developed and to assist in the resolution ambiguities and conflicts in the evidence. (People v. Raviart (2001) 93 Cal.App.4th 258, 270 (Raviart).) Thus, “ ‘ “if a judge desires to be further informed on certain points mentioned in the testimony it is entirely proper for him to ask proper questions for the purpose of developing all the facts in regard to them.” ’ ” (Ibid.; accord People v. Santana (2000) 80 Cal.App.4th 1194, 1206 (Santana).)

However, “[a] court commits misconduct if it persistently makes discourteous and disparaging remarks so as to discredit the defense or create the impression it is allying itself with the prosecution.” (Santana, supra, 80 Cal.App.4th at pp. 1206–1207.) Through its questioning of witnesses, the court may not “[take] on the role of prosecutor rather than that of an impartial judge” or “create[] the unmistakable impression it had allied itself with the prosecution.” (Id. at p. 1207; accord, People v. Robinson (1960) 179 Cal.App.2d 624, 633 [through extensive examination and cross-examination of witnesses, trial court assumed the role of the prosecutor and developed prosecution case]; People v. Carlucci (1979) 23 Cal.3d 249, 258 [in questioning witnesses, “the trial court must not undertake the role of either prosecutor or defense counsel”].) Thus, although a court may intervene to aid in eliciting clear and comprehensive testimony, for the court to “interrupt the orderly and efficient interrogation of the People’s witnesses by the prosecutor and to take over the latter’s duties repeatedly . . . can scarcely fail to have some influence upon the minds of the jurors adverse to the defendant.” (People v. Campbell (1958) 162 Cal.App.2d 776, 787.)

The Attorney General argues that defendant forfeited his claim of judicial misconduct by failing to object at trial. We agree. “ ‘It is settled that a judge’s examination of a witness may not be assigned as error on appeal where no objection was made when the questioning occurred.’ ” (Raviart, supra, 93 Cal.App.4th at p. 269; accord, People v. Harris (2005) 37 Cal.4th 310, 350 (Harris).) Defendant contends the issue is not forfeited because an objection would have been futile. (People v. Sturm (2006) 37 Cal.4th 1218, 1238 [failure to object does not preclude review where objecting would be futile].) We are unpersuaded. The trial court did not show hostility toward defendant or his counsel, and there is no reason to conclude it would not have considered proper objections.

Even on the merits, we would reject defendant’s claim of judicial misconduct. Our role “ ‘is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.’ ” (Harris, supra, 37 Cal.4th at pp. 346–347.) We do not reverse for judicial misconduct unless the defendant suffers prejudice. (People v. Abel (2012) 53 Cal.4th 891, 914.)

We are somewhat troubled by the extent of the trial court’s questioning here, but conclude that defendant has not met his burden to show prejudice. Most of the court’s questions were brief and served to clarify the witnesses’ testimony (see Raviart, supra, 93 Cal.App.4th at p. 270), they did not disparage defendant, and we are not persuaded they suggested to the jury that the court had allied itself with the prosecution (see Santana, supra, 80 Cal.App.4th at pp. 1206–1207). The court’s examination of Officer Wanzie, although it arguably usurped a portion of the direct examination, appeared designed to avoid a delay in the proceedings while the prosecutor marked exhibits, and its subject was the routine investigation Wanzie undertook when he went arrived on scene. Defendant points out that the court elicited the testimony that Wanzie did not recover any firearms at the scene, and that this testimony, as well as testimony it elicited from Cooper about the events at the Coconut Grove, undermined his claim of lawful self-defense. But the jury accepted defendant’s claim of self-defense as to Hamilton, the only person he claimed he believed had a firearm. There is no basis to conclude the court’s action in eliciting this testimony harmed defendant’s case.

Accordingly, we reject defendant’s claim that his convictions should be reversed for judicial misconduct.

V. Evidence of Hamilton’s Character
VI.
Defendant sought to admit character evidence regarding Hamilton, specifically, evidence that several months after the events at issue in this case, Hamilton and two passengers died in an automobile accident while he was recklessly evading a police officer who had seen him doing “donuts” in San Francisco, and that two firearms, 30 rounds of ammunition, a white mask, a police scanner, and a large amount of cash was found in his car. Defendant argued these items showed Hamilton was aggressive and had a propensity for violence, and that he had a character as a robber. The trial court allowed defendant to introduce evidence of the crash, the guns, and the ammunition, but not the other items. The jury heard evidence that Hamilton died in a fiery car accident in February 2016 and that two semiautomatic pistols were found in the car he had been driving, one with an extended 20-round ammunition magazine and one with a regular 10-round magazine.

Defendant contends the trial court abused its discretion in excluding evidence of the full circumstances of Hamilton’s death, including the presence of a mask, cash, and a police scanner in his car. He argues the excluded evidence, along with the guns and ammunition, were a “veritable robber’s tool kit,” and that it was admissible under Evidence Code section 1103 to show Hamilton’s aggressive and violent character, in order to bolster defendant’s claim that Hamilton was the aggressor on the night of the events at issue here and that defendant acted purely in self-defense when he fired his gun in Hamilton’s direction and drove away.

This claim fails. Defendant is correct that Evidence Code section 1103, subdivision (a)(1) provides an exception to the general rule against propensity evidence, applicable where the evidence is “[o]ffered by the defendant to prove conduct of the victim in conformity with the character or trait of character.” (People v. Myers (2007) 148 Cal.App.4th 546, 552.) A trial court has broad discretion to determine whether the probative value of evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

We reverse for improper exclusion of evidence only where the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 354; People v. Callahan (1999) 74 Cal.App.4th 356, 363.) “ ‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Callahan, at p. 363, citing People v. Watson (1956) 46 Cal.2d 818, 836.) And we do not disturb a trial court’s exercise of its discretion to exclude evidence under Evidence Code section 352 “ ‘ “except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (Callahan, at p. 367, italics added.)

Because the crash, the guns, and the ammunition all came in as evidence of Hamilton’s propensity for violence, we see no error in excluding the other evidence. But even if the evidence of the mask, police scanner, and cash should also have been admitted to show Hamilton’s violent character, there is no reasonable probability that its admission would have produced a more favorable result for defendant. The evidence was relevant only to Hamilton’s character, and the jury acquitted defendant of all charges related to Hamilton. The inescapable conclusion is that the jury accepted defendant’s position that he shot Hamilton in reasonable self-defense—and, by necessary extension, that he reasonably believed Hamilton was the original aggressor. We see no likelihood that the jury would have made different findings as to the shooting of Ruiz and Hernandez if it had heard additional evidence of Hamilton’s character.

VII. Prosecutorial Misconduct
VIII.
Defendant contends the prosecutor committed two instances of misconduct during his rebuttal argument. “A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] . . . A prosecutor’s misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ [Citations.] [¶] When the issue ‘focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1202–1203 (Cole).) The prosecutor has “ ‘wide latitude during closing argument to make fair comment on the evidence, including reasonable inferences or deductions to be drawn from it’ ” (People v. Seumanu (2015) 61 Cal.4th 1293, 1363 (Seumanu); accord People v. Lawley (2002) 27 Cal.4th 102, 156 [no misconduct when prosecutor’s argument constituted fair argument on evidence]), and it is for the jury to decide whether the inferences are reasonable (Cole, at p. 1203).

In a point related to the evidentiary issue we have just discussed, defendant contends the prosecutor committed misconduct during his rebuttal argument. In an effort to counter defendant’s claim that he saw a gun in Hamilton’s hand on the night of the shootings, the prosecutor argued that the only independent evidence that Hamilton had a gun was the evidence that there were two semiautomatic handguns in Hamilton’s car the night of his death. The prosecutor went on: “The problem for the defense, though, is that’s seven months later[;] we don’t even know why [the] gun was there. I would suggest to you to consider that Mr. Hamilton was shot [in Vallejo] on June 9, 2015 and is found with a gun later, hey a logical explanation for that is he got shot. That’s why he feels the need to protect himself . . .” Defendant argues it was misconduct for the prosecutor to suggest that Hamilton acquired the guns after the shootings at issue in this case because the prosecutor knew that the excluded evidence of the mask, police scanner, and cash suggested Hamilton carried the guns in order to commit robbery, not to protect himself.

We agree that it is “ ‘deceptive or reprehensible’ ” (Cole, supra, 33 Cal.4th at p. 1202) to argue a point that is contradicted by evidence known to the prosecutor but withheld from the jury. Although the prosecutor did not positively assert a falsehood (compare People v. Varona (1983) 143 Cal.App.3d 566, 570 [prosecutor improperly argued victim of sex offenses was not a prostitute although he knew official records showed otherwise]), we are concerned that the argument may have crossed the line from “ ‘fair comment on the evidence’ ” (Seumanu, supra, 61 Cal.4th at p. 1363) by promoting a theory that, in light of the excluded evidence, was unlikely to be true.

But we nonetheless find no reversible misconduct. First, defendant made no objection to the argument. “To preserve a claim of prosecutorial misconduct, a defendant must make a timely and specific objection and ask the court for a curative instruction.” (People v. Smith (2015) 61 Cal.4th 18, 51.) Second, the jury accepted defendant’s argument that he acted in reasonable self-defense as to Hamilton, and we see no reasonable likelihood that the jury would have acted differently with respect to the charges related to Hernandez and Ruiz if the comments had not been made. (People v. Friend (2009) 47 Cal.4th 1, 29.)

Defendant contends the prosecutor also committed misconduct when he concluded his closing argument this way: “So, what’s been proven here? The defendant’s guilty of trying to kill David Hamilton, Josh Hernandez and Azalia Ruiz. What’s been proven? The defendant committed an assault with a semiautomatic firearm, his Glock ten millimeter. It’s been proven the defendant shot at [ ] people from a car, Ms. Ruiz, Mr. Hamilton, Mr. Hernandez. It’s been proven that the defendant shot from a car, that same gun. The defendant used a gun in these crimes, he discharged [it and] he caused GBI to all three victims. What’s been going on is the defendant refuses to take responsibility for this. He’s trying to talk his way out of it. That stops today. No more gunshot victims in the street, hold him responsible. Find him guilty of these crimes at the end.” (Italics added.)

This argument, defendant urges, was intended to appeal to the jurors’ passions, prejudices, and fears by inviting them to convict defendant in order to ensure the safety of their community. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1250 [appeals to jury’s passion and prejudice are misconduct at guilt phase of trial].) We disagree. The prosecutor may properly appeal to a jury to hold a defendant accountable in this manner. The comments did not refer to any crimes other than those with which defendant was charged. And we see no reasonable probability that, even if the jury was reminded of other shootings in the vicinity, the comments affected the verdicts. (People v. Amezcua and Flores (2019) 6 Cal.5th 886, 920.) The fact that the jury acquitted defendant of all charges related to Hamilton and convicted him of the lesser included offenses of attempted voluntary manslaughter, rather than the charged offenses of attempted murder, as to the other victims indicates the jury evaluated the evidence carefully, unswayed by passion or prejudice.

IX. Multiple Convictions of Shooting from a Motor Vehicle
X.
Section 26100, subdivision (c) provides, “Any person who willfully and maliciously discharges a firearm from a motor vehicle at another person other than an occupant of a motor vehicle is guilty of a felony . . .” Subdivision (d) of the same statue applies to “any person who willfully and maliciously discharges a firearm from a motor vehicle.” In counts 3 and 11, defendant was convicted of shooting from a motor vehicle at Ruiz and Hernandez respectively. In counts 4 and 12, he was convicted of shooting from a motor vehicle; in connection with these counts, the jury found true allegations that he personally and intentionally discharged a firearm, proximately causing great bodily injury to Ruiz and Hernandez respectively. Defendant contends subdivision (d) of section 26100 is a lesser included offense of subdivision (c), and he therefore may not stand convicted of violating both subdivisions.

In general, a person may be convicted of—but not punished for—multiple offenses arising out of a single act or course of conduct. (§§ 954 & 654; People v. Ortega (1998) 19 Cal.4th 686, 692 (Ortega).) An exception to this rule applies, however, when one offense is necessarily included in another: “[Our high court] has long held that multiple convictions may not be based on necessarily included offenses.” (People v. Pearson (1986) 42 Cal.3d 351, 355, disapproved on another point in People v. Vidana (2016) 1 Cal.5th 632, 651; accord Ortega, at p. 692.)

Defendant argues, and the Attorney General does not dispute, that shooting from a motor vehicle (§ 26100, subd. (d)) is a lesser included offense of shooting from a motor vehicle at another person (id., subd. (c)) because the greater offense cannot be committed without also necessarily committing the lesser offense. (See People v. Ramirez (2009) 45 Cal.4th 980, 984–985 (Ramirez) [“[I]f a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense”]; accord People v. Sloan (2007) 42 Cal.4th 110, 117.) We agree that counts 4 and 12 are lesser included offenses of counts 3 and 11, and they fall within the general rule that a person may not be convicted of both the greater and the lesser offenses based on the same act or course of conduct.

The Attorney General argues, however, that multiple convictions are proper because defendant fired multiple shots, hitting both Ruiz and Hernandez more than once. We are unpersuaded. In re Edward G. (2004) 124 Cal.App.4th 962 (Edward G.), overruled on other grounds in People v. Licas (2007) 41 Cal.4th 362, 370, is instructive. The minor in that case was found in count 1 to have discharged a firearm at a person outside a vehicle and in count 2 to have committed assault with a firearm. (Edward G., at p. 965.) The appellate court concluded count 2 was necessarily included in count 1. (Id. at p. 969.) It went on to reject the People’s argument that two true findings were appropriate because two shots were fired. The court reasoned that the key question was whether the two counts constituted a single indivisible act; this question was one for the trier of fact unless as a matter of law the acts were not divisible. (Id. at p. 970, citing People v. Greer (1947) 30 Cal.2d 589, 599–600, overruled on another ground in People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6.) In Edward G., the trier of fact—the juvenile court—had necessarily found that the two counts were based on the same act when it stayed sentence for count 2 pursuant to section 654, which forbids multiple punishment for “ ‘[a]n act or omission.’ ” The court reasoned, “In both contexts, the court decides whether the defendant had one general intention or two or more separate and distinct intentions. [Citations.] Here the court implicitly found only one act or omission, so we cannot conclude that the second shot established a second offense.” (Edward G., at p. 970.)

This record does not show that the jury based the convictions for shooting from a motor vehicle at another person and shooting from a motor vehicle (with an enhancement for causing great bodily injury to the same person) on separate acts. The incident occurred quickly, and there was no evidence of a pause during the gunfire. Even if the evidence would support findings of more than one act or course of conduct against each victim, neither the instructions nor the argument suggest the jury made such findings. Hernandez, and Ruiz were each struck more than once, but the jury was not instructed that it must decide unanimously which act was the basis for each count. (CALCRIM No. 1300; see People v. Russo (2001) 25 Cal.4th 1124, 1132 [jury must agree unanimously that defendant is guilty of specific crime].) In fact, the court and the parties agreed the case did not present “unanimity issues.” The prosecutor did not argue that the two offenses as to each victim were based on separate acts. Consistent with this conclusion, the trial court stayed sentence on the lesser included offenses pursuant to section 654, indicating it viewed them as based on the same act as the greater offense. (See Edward G., supra, 124 Cal.App.4th at p. 970.) On this record, defendant could not properly be convicted under both subdivision (c) and (d) of section 26100.

We are not persuaded otherwise by the Attorney General’s reliance on cases concluding that each penetration of a victim of sexual assault is a separate crime and may be punished separately. (See People v. Harrison (1989) 48 Cal.3d 321, 329, 335–338; People v. Brown (1994) 28 Cal.App.4th 591, 601; People v. Clem (1980) 104 Cal.App.3d 337, 346–347.) These cases do not establish that defendant may properly stand convicted of greater and lesser included offenses of shooting from a motor vehicle in connection with the same victim when the evidence shows a single burst of gunfire and there is no indication the jury found separate acts the basis for each conviction.

XI. Sentencing Issues
XII.
The jury found true allegations that defendant personally and intentionally discharged a firearm, causing great bodily injury to Ruiz and Hernandez for purposes of section 12022.53, subdivision (d), and the trial court imposed concurrent terms of 25 years to life for these enhancements to counts 3 and 11. At the time, this statute provided for a mandatory additional term of 25 years. (Former § 12022.53, subds. (d) & (h).)

The Legislature subsequently enacted Senate Bill 620, which amended section 12022.53 to give trial courts discretion to strike or dismiss this enhancement in the interests of justice. (Sen. Bill No. 620 (2017–2018 Reg. Sess.) [effective January 1, 2018]; § 12022.53, subd. (h).) Defendant contends, and the Attorney General properly concedes, that this provision applies retroactively to cases not yet final on appeal and that nothing in the record indicates the trial court would not have stricken these enhancements if it had had discretion to do so. We agree. (See People v. Vela (2018) 21 Cal.App.5th 1099, 1113–1114; People v. Woods (2018) 19 Cal.App.5th 1080, 1090–1091.) On remand, the juvenile court shall exercise its discretion pursuant to Senate Bill No. 620 in deciding whether to strike the firearm enhancements. (People v. Phung (2018) 25 Cal.App.5th 741, 763.)

Defendant also points out, and the Attorney General concedes, that the trial court erroneously neglected to impose sentence on counts 1, 2, 4, 9, 10, and 12 before staying them under section 654. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1466 [“[W]hen a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence”].) On remand, the trial court shall do so, with the exception of the two counts we are reversing.

Defendant raised a number of other challenges to his sentence in his opening brief, including that a life term in these circumstances—where the jury rejected a charge of attempted murder and convicted him of the lesser included offense of attempted involuntary manslaughter—constitutes cruel and unusual punishment under the constitutions of California and the United States. In light of the Attorney General’s concession that the matter should be remanded to allow the trial court to consider whether to strike the section 12022.53 firearm enhancements, defendant acknowledges in his reply brief that we need not address his other challenges to his sentence. We agree.

DISPOSITION

Defendant’s convictions on counts 4 and 12 are reversed. His convictions on all other counts are affirmed, but the matter is remanded to the trial court for resentencing in accordance with the views expressed in this opinion.

Defendant’s June 28, 2018 request for judicial notice is denied.

 

_________________________

TUCHER, J.

WE CONCUR:

_________________________

STREETER, Acting P. J.

_________________________

BROWN, J.

People v. Crosby (A151328)