Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F07662
ROBIE, J.
Defendant Paul Alejandro Duran was charged with assault with a firearm, possession of a firearm by a felon, and possession of ammunition by a felon. A jury found him guilty of possession of ammunition by a felon and deadlocked on the other two charges. On retrial, a jury found him guilty of possession of a firearm by a felon and again deadlocked on the charge of assault with a firearm. Thereafter, the court dismissed that charge and sentenced him to five years four months in prison.
On appeal, defendant raises one issue -- the court erred in denying his request to instruct the jury the term “act” in the instruction on assault with a firearm meant “personally point[ing] and discharg[ing] [a] firearm in this case.” Although not convicted of assault with a firearm, he claims the error prejudiced him as to his conviction for possession of a firearm by a felon. As his pinpoint instruction was not a correct statement of law, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 15, 2005, defendant drove his acquaintance Matthew Madaras to Madaras’s mother’s house to retrieve some tools. Madaras sat in the front passenger’s seat. After Madaras retrieved the tools, and while defendant was driving the two of them back to defendant’s house, defendant suddenly slammed on the brakes and jumped out of the car. Madaras heard gunshots and ducked for cover. Defendant got back in the car and Madaras asked, “‘what the hell is going on?’” Defendant said, “‘I don’t know.’” As they drove away, Madaras saw a man “laying down on some grass and across the way” from where defendant had stopped the car.
The man on the grass was Josh Morris. He had been shot. Shortly after the shooting and also at trial, Morris identified defendant as the person who shot him. The gun defendant shot him with was a “Smith and Wesson .38 stainless” with a two inch “[s]nub-nose” barrel that Morris had seen defendant carrying sometime prior to the shooting. Defendant’s former coworker, Daryl Colton, also had seen defendant in possession of a silver snub-nosed .38 caliber firearm sometime in 1995.
At trial, Morris further testified that defendant was the passenger in the car. Morris believed that “one of the guys [they] hung out with” named “Mike” was the driver of the car. Morris also testified he had injected himself with drugs the day of his testimony.
Morris had known defendant for a “couple months” before the shooting. Defendant “or one of his people” had “hook[ed]” Morris up with drugs, and Morris and defendant used to hang out, do drugs, and drink together at defendant’s house. A few weeks before the shooting, Morris had stolen a drug scale from defendant.
Shortly after the shooting, law enforcement officers searched defendant’s house. Inside defendant’s bedroom and outside in the backyard were various types of ammunition.
Law enforcement officials tested Madaras for gunshot residue. On his hand were two gunshot residue particles. There were no gunshot residue tests performed on defendant.
DISCUSSION
Defendant contends the court erred in denying his request to instruct the jury the term “act” in the instruction on assault with a firearm meant “personally point[ing] and discharg[ing] [a] firearm in this case.” The form instruction given on this charge, which was based on CALCRIM No. 875, read as follows: “To prove that the defendant is guilty of this crime, the People must prove that [¶]
“1. The defendant did an act with a firearm that by its nature would directly and probably result in the application of force to a person.
“2. The defendant did that act willfully.
“3. When the defendant acted, he was aware of the facts that would lead a reasonable person to believe that his act by its nature would directly and probably result in the application of force to someone. And
“4. When defendant acted, he had the present ability to apply force with a firearm to a person.
“Someone commits an act willfully when he or she does it willing[ly] or on purpose . . . .”
During deliberations, the jury asked, “what does the word ‘act’ mean in the instruction -- the defendant did an ‘act’ with a firearm etc.”
It was at this time defendant requested his pinpoint instruction that “act” be defined as personally pointing and discharging a firearm. The court rejected defendant’s request and instructed the jury as follows:
“The word ‘act’ is to be given its ordinary, everyday meaning. It may also be helpful to re-read the entirety of Instruction 875.”
The court explained to the parties why it had rejected defendant’s pinpoint instruction:
“There is no evidence that anyone other than the defendant fired the weapon. Either you believe the prosecution’s case in that regard with regard to the percipient witness and the corroborating evidence or you do not.
“The difficulty, of course, with the language as tendered by the defense is that it’s argumentative in character requiring, for example, pointing and discharging the firearm in a manner that is not required for 875. It suffers from other infirmities as well, but the instruction given by the Court is a right instruction and the alterative . . . was therefore rejected.”
The trial court was correct. CALCRIM No. 875 sets forth the requirements for a violation of Penal Code section 245, assault with a deadly weapon. Penal Code section 245 defines assault with a deadly weapon as “assault upon the person of another with a deadly weapon or instrument . . . .” That crime requires proof only “that a deadly weapon was used and that the defendant intended to commit a violent injury on another.” (People v. Sanders (1962) 206 Cal.App.2d 479, 483.) Pointing and discharging the deadly weapon is not an element of the offense. As such, there was no error in rejecting the pinpoint instruction.
We note some final points. The reason defense counsel wanted the pinpoint instruction was to foreclose any other possible theory of conviction such as aider and abettor liability. However, the court did not give aider and abettor instructions, and the prosecutor argued to the jury that this was not an aider and abettor case. Moreover, the court also instructed the jury that as to the possession of a firearm charge, all jurors had to “agree that the People have proved that the defendant possessed the firearm when it was discharged on or about May 15, 2005.” It is not for us to decide if and why the jury reached seemingly inconsistent verdicts on the charge of assault with a firearm and the charge of possession of a firearm. We simply decide there was no error in failing to give the pinpoint instruction.
DISPOSITION
The judgment is affirmed.
I concur: HULL, J., BLEASE, Acting P. J.
I concur in the result. Whatever error, if any, occurred in the failure to give a pinpoint instruction on assault with a firearm was harmless. The defendant was not convicted of that offense.