Opinion
F071678
05-21-2018
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO FLORES, Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF017860A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Eduardo Flores challenges his convictions for attempted murder with deliberation and premeditation, assault with a firearm, two counts of shooting at an inhabited dwelling, negligent discharge of a firearm, possession of a firearm by a felon, and misdemeanor receipt of stolen property.
First, Flores contends his state and federal constitutional rights to trial by an impartial jury and due process were violated by the trial court's failure to conduct a sufficient inquiry for purposes of ascertaining whether there was good cause to discharge a sworn juror. We reject this contention.
Flores next challenges his convictions for attempted murder and assault with a firearm. Specifically, he argues the prosecution's failure to establish the corpus delicti of these offenses, independent of his own out-of-court statements, renders the evidence underlying the challenged convictions legally insufficient. We disagree.
Flores also argues, with reference to Penal Code section 954, that he could properly be convicted only of one count—not two counts— of shooting at an inhabited dwelling house. However, the evidence shows that Flores committed two completed offenses of shooting at an inhabited dwelling house. Accordingly, Flores's convictions for shooting at an inhabited dwelling house are affirmed.
Subsequent statutory references are to the Penal Code unless otherwise specified.
Finally, Flores argues that his conviction for negligent discharge of a firearm must be reversed because negligent discharge of firearm is a lesser included offense of shooting at an inhabited dwelling house. The People concede the point. We agree and reverse this conviction.
PROCEDURAL HISTORY
Flores was convicted, by a jury, of six felonies and one misdemeanor, in the Kern County Superior Court: attempted murder of Felipe Rocha, with enhancements of deliberation and premeditation and personal use of a firearm (count 1; §§ 664/187, subd. (a), 12022.5, subd. (a)); assault with a firearm on Felipe Rocha (count 2; § 245, subd. (a)(2)); two counts of shooting at an inhabited dwelling house (284 and 286 East Marengo) (counts 3 and 4; § 246); discharging a firearm in a grossly negligent manner (count 5; § 246.3, subd. (a)); receipt of stolen property (i.e., the firearm at issue), a misdemeanor (count 8; § 496, subd. (a)); and possession of a firearm by a felon (count 9; § 29800, subd. (a)(1).) In a bifurcated proceeding, the court found true alleged sentence enhancements that Flores had suffered a prior conviction that constituted both a serious felony prior and a strike prior. (§§ 667, subds. (a), (c)-(j), 1170.12, subds. (a)-(e).) Flores was sentenced to life with the possibility of parole as well as a determinate term of 38 years, eight months.
The sentence was calculated as follows: Count 1 - life, with the possibility of parole after 14 years (the seven-year minimum parole eligibility period doubled on account of the prior strike), with a consecutive term of 15 years for enhancements under section 12022.5, subdivision (a) (10 years) and section 667, subdivision (a) (five years); count 3 - 19 years (the upper term of seven years doubled on account of the prior strike, plus five years for the § 667, subd. (a) enhancement); count 4 - a consecutive term of three years, four months (one-third the midterm doubled on account of the prior strike); and count 9 - a consecutive term of one year, four months (one-third the midterm doubled on account of the prior strike). The court imposed the upper terms on counts 2 and 5, but the sentences on these counts were stayed pursuant to section 654. The sentence on count 8, a misdemeanor, was also stayed pursuant to section 654.
FACTS
Prosecution Case
Testimony of Miguel Alcaraz and Officer Martin Cervantes Regarding a Shooting
In June 2014, Miguel Alcaraz and his family lived at 284 East Marengo in Shafter. Felipe Rocha lived next door at 286 East Marengo. 284 and 286 East Marengo comprised a duplex, with a common driveway facing across the front of both units.
The parties stipulated that Rocha died in July 2014 and that there was no evidence his death was related to Flores or Flores's trial.
Alcaraz and his family were at home around 8:00 p.m. or 9:00 p.m. on June 25, 2014. Alcaraz was watching television in his living room when he heard six to eight gunshots in rapid succession. His kitchen window was slightly ajar but he did not hear any shouts or arguments before the gunshots. Alcaraz's wife told him to remain in the living room after the shots rang out; they stayed inside and did not look outside. A short time later, Alcaraz went into the kitchen and looked out of the window. He saw Rocha's BMW SUV backing up and leaving the duplex. Alcaraz was equivocal about whether he saw Rocha in the car, initially indicating he saw Rocha leaving but later testifying that he had not seen who was in the car or the number of people in it. Alcaraz subsequently decided to take his family to a friend's house. Another 15 minutes or so later, as they were loading up in Alcaraz's '93 red Ford F-150 pickup truck, Alcaraz saw the BMW SUV return; Rocha was driving and was the only one in the car. Later that night, Alcaraz saw some damage to the door of his red truck, including a little hole in it. The door was a little hard to open on account of the damage.
Around 10:21 p.m. on June 25, 2014, Shafter Police Officer Martin Cervantes was on patrol in the 200 block of East Marengo, when he noticed a pile of glass in the road. Upon illuminating the area with his spotlight, he noticed some spent shell casings near the glass. Cervantes got out and found nine .45-caliber spent shell casings close together in the street, across from 286 East Marengo. He also found two live .25-caliber handgun rounds near the edge of the driveway leading to the duplex, at a distance of probably 30 or 40 feet from the .45 casings. The .25-caliber rounds had "primer mark[ings]" on them, which indicated that someone had put them inside a semiautomatic handgun and tried to fire them but the gun had malfunctioned and failed to fire the rounds. Although semiautomatic guns eject casings when fired, no spent .25-caliber shell casings were found.
Cervantes also observed bullet holes in the duplex. A bullet fragment was recovered from the stucco on the outside of 284 East Marengo. In addition, Cervantes found evidence of apparent bullet strikes inside the other unit, 286 East Marengo, including bullet fragments in the shower wall and bullet holes in the bathroom door, kitchen wall, and front window. An older model black Ford F-150 truck, belonging to Rocha, was parked in the driveway in front of the duplex and also had "two or three" bullet holes. More specifically, a bullet fragment was recovered from its rear bumper and a bullet had gone through its rear window and out through the front windshield.
Cervantes contacted Rocha at 286 East Marengo; he recognized Rocha from prior contacts. Rocha was rubbing his eyes to "insinuat[e] that he had just woke[n] up" but appeared alert and was fully dressed. There was no indication that Rocha was injured in any way.
During Flores's subsequent police interrogation in connection with this matter (the interrogation was admitted into evidence), the interrogating officer, Alecio Mora, clarified that Rocha had not said "anything" during his interactions with the police on the night of the shooting. Similarly, Officer Cervantes, who actually spoke to Rocha at approximately 10:00 p.m. that night, noted in an Evidence Code section 402 hearing that Rocha had nothing to say about the incident. Specifically, Cervantes testified: "[Rocha] was just telling me he didn't hear or see anything."
Testimony of Officer Alecio Mora Regarding Flores's Call to Police and His Arrest for Being Under the Influence of Narcotics
On June 30, 2014, Flores called the police for assistance. Shafter Police Officer Alecio Mora was dispatched to Flores's residence on Fairhaven in Shafter, in response to Flores's call. The dispatcher had advised Mora that Flores was rambling in the call and sounded as if he was under the influence of a narcotic. When Mora contacted Flores, Flores told Mora that, while he was in the shower, he had overheard his brother, Armando, and Rocha (whom Flores referred to as Bart), conspiring to set him up and get him in trouble. Flores said Rocha was working with the FBI. Flores accused Armando and Rocha of tampering with his red Chevy S-10 pickup truck, which was parked at the house and the keys to which were missing.
Mora knew Flores and his family; he had gone to high school with Flores's sister.
Mora spoke to two of Flores's brothers in an attempt to locate the keys to the truck, which was locked. Finally, Flores's brother, Orlando, handed Mora the keys, which he had evidently found on an outdoor sofa. Flores told Mora to search the interior of the truck for contraband (in light of the alleged tampering by Armando and Rocha). Mora searched the truck; in the course of the search, he moved a Panther-brand accordion that was on the passenger-side floorboard. Mora did not find any contraband. Flores cryptically asked Mora whether, given he had moved the accordion, he was sure there was no contraband in the truck.
Mora was a certified drug recognition and classification expert. Based on his training and experience, he determined that Flores was under the influence of a central nervous stimulant, such as methamphetamine or cocaine. Flores had fast, repetitive speech, his lips were dry, his breath had a chemical odor, he had finger tremors, and his pulse (102 beats per minute) was elevated. In addition, Flores's performance on the Romberg test, a "time perception" test, indicated that his body clock was operating faster than normal, a symptom associated with the use of stimulants. Mora also noted that during the Romberg test, Flores swayed from side to side as well as back and forth. Accordingly, Mora arrested Flores for being under the influence of an illegal substance and took him to the police station.
During the three-minute drive to the police station, Flores talked to Mora about Rocha, continually "repeating the same thing." The conversation occurred in Mora's patrol car and was not recorded. Flores told Mora that he hated Rocha and wished he were dead. Flores told Mora there had been a shooting on East Marengo related to Rocha. He said he initially saw Rocha at "Big Stop" and went home to get his gun, a black Springfield XP, .45-caliber weapon. When he returned, Rocha was gone. Flores then headed to Rocha's home on East Marengo, intending to "smoke" or "kill" Rocha. He saw Rocha "playing with some flowers" by his front door but continued down the street to kill time. When he returned, he got out of his car, took out his "strap" or gun, cocked it back, put a bullet in the chamber, and walked to the "rear driver's side corner" of his car. However, he did not see Rocha and started to walk back to get in his car, when he suddenly heard a loud bang and saw a gun flash. Flores reacted by firing 10 rounds, emptying his clip, back at Rocha. Flores explained he had an ongoing dispute with Rocha because Rocha had slept with his ex-girlfriend, Sonia L.
At the police station, Mora determined that Flores's blood pressure was elevated and his pupils were slow to react to light. Flores refused to submit to a drug test, stating he would test "dirty" for steroids.
Mora testified that he had arrested Flores because he determined Flores was in fact impaired and under the influence of a central nervous stimulant. Flores appeared "paranoid" and "irrational," given his statements about the FBI and talk of conspiracies against him, and because of his seemingly random statements about the shooting. However, Flores was able to recall specific details regarding the shooting and seemed rational when he was subsequently interrogated.
A police record relating to Flores evidently documented that Flores had a mental disorder but Officer Mora could not address or verify that record or finding, as he had not generated the record and was unaware of its provenance.
Flores's Recorded Police Interrogation
Ultimately, Mora placed Flores in an interrogation room, while he retrieved and reviewed the police report concerning the recent shooting on East Marengo. Flores fell asleep and Mora woke him up to start the interrogation. Mora Mirandized Flores and questioned him about his role in the shooting on East Marengo. Flores's statements in the course of the interrogation are rambling and contradictory; they are hard to follow, and, at some points, even bizarre. The interrogation was recorded and played for the jury.
Miranda v. Arizona (1966) 384 U.S. 436.
In the interrogation conducted by Mora, Flores stated that the previous Wednesday, he had gone looking for Rocha to "gun him down" and "kill his ass." However, the bullets he had "were blanks" and "it was not even ... a shooting." Rocha was in front of his house with two other "guys," so Flores drove around the block in his gray 2003 Durango to burn some time. Finally, Flores parked across the street from Rocha's house. He testified: "And I got off you know I went and ... I pulled out my strap and then I clocked that shit because you know because I went with intentions of smoking this fool." Flores then "put one in the chamber and ... was ready for war." Flores further explained: "I got off and I went around the [driver's side rear] corner of my truck and I didn't see nobody so I see some ... dude walking away like he if he was scared. So ... I don't have no problems with nobody so it's not it's no no no I wasn't going to shoot that dude anyway."
Officer Mora subsequently testified that blanks are "fake bullets" that "don't injure anybody" or cause other damage.
Flores continued: "I walked off look around ... I don't know if I said where's that fucking punk at. [¶] ... [¶] ... Yeah I stood there and I, I don't know like I said if I called that fool out you know or I didn't see him." Flores said he "didn't recognize [Rocha]. [¶] ... [C]ause he wasn't there you know he was hiding behind the truck," a black "Chevy." Flores then said that Rocha "came out the front of the truck" but "went to get his gun or whatever." Flores added: "He was hiding from me. So when I got off and I was where[']s this mother fucker at. I go what this fucking bitch ass you know punk ass whatever I said. I don't even know what I said but I just said it. I think I said some names I don't remember."
Officer Mora testified that earlier Flores had told him that he had yelled out, "Where's Rocha, that fucking bitch."
When asked to confirm whether Rocha was hiding behind the black truck, Flores continued to ramble:
"No I didn't see him hiding but that's what I'm assuming you know he was hiding from like. That's why I didn't spot him so when I said fuck it I'm just going to go home you know. I was walking toward my truck I just heard. [¶] ... [¶] ... I seen somebody come out and it was him. [¶] ... [¶] ... He was
wearing a white shirt. [¶] ...[¶] ... [But] remember my eyes fucked up so. It was already getting dark so I know ... [¶] ... [¶] ... [H]e actually you know he creeped up on me like when I was walking out to my truck. He put he jumped out of the front and just I just hear bang you know, like that son of a bitch I said. No you didn't. So I just pointed at my shit at him and I unlit the whole clip on him but, but like I said they they they were blank bullets you know. [¶] ... [¶] ... [And] [h]e shot me first. [¶] ... [¶] ... I said ... if I'm correct I would have been where's the fucking this punk ass mother fucker you know. Where's Bart at you know? I think I said I don't remember you know but c[au]se ... there was you know I had seen three people. [¶] ... [¶] ... I figured you know one of them has to be this fool. But he, he was hiding in front of the fucking truck you know so I figured. [¶] ... [¶] ... I didn't see him you know. When I walked away towards getting back in my truck I didn't even make it to the corner of the back of my truck when I just heard ... [¶] ... [¶] ... boom ... oh son of a bitch."
Flores said he was on one side of the street and Rocha was "in the middle," about 40 feet away; he also said Rocha and others were by the apartment's front door. Flores did not see Rocha armed at any time and did not know where a gun would have come from, adding: "It could've been like if they were fireworks." Flores said the bang blew his "ear out." Flores continued: "[L]ike I said I didn't see shit I just remember looking for him and I said what the ... that's all I needed right there" (i.e., the bang, however it originated).
Flores, who owned a welding business, explained he had "blinded" himself when doing electrical work earlier in the day. He said he was basically rendered deaf and blind at that point. He could not see Rocha right then but had aimed for where he was before. Flores said his own gun was a black "Springfield," more specifically an "XP ... extra duty," .45-caliber gun. He said Santa Claus had given him the gun as a gift.
Flores explained he had a problem with Rocha because Rocha had been involved with Sonia L., Flores' ex-girlfriend, but more so because Rocha had "mess[ed]" with Flores's "kid." Flores had, in fact, confronted Rocha on Mother's Day earlier that year and told him that he was going to "smoke" him. Flores went on: "I hope you know that if you guys, you know the D.A. files charges I mean we both go to jail you know because he's, he's not obviously, I'm not going to get convicted for something like that, for a shooting, for shooting with blanks. Bull shit. I mean he wants to take me down, fuck it then let's go down together."
Flores said that the day after the shooting, he had noticed a bullet hole on his Durango; it looked like a "nine or a forty-five." Regarding the broken glass outside Rocha's apartment, Flores said, "it was probably a glass bottle." Flores said he had left his Durango in "the projects on Oakson or Atkinson" because he was worried he would get pulled over for the shooting; "nothing happened to it, it's just the windows that [were] broken," but that had happened after the shooting.
When police subsequently impounded the Durango, there appeared to be a large bullet hole, evidently from a weapon that was "larger than a .25." The hole was on the frame of the rear window, on the driver's side, from where Flores, as he explained in his interrogation, was shooting.
Flores said Officer Mora was free to search the Durango, but if he wanted Flores's gun, he would have to arrange for Rocha to come talk to Flores. Flores explained: "I gave him my word that I wasn't going to shoot him or stave him but he didn't want to believe me. He knew it, I mean I told him look, mother-fucker if he would've just took an ass-whooping it would've been done with it. I even, I think I texted him that day or the day before. I go look fool just get down with me, let's just fucken, let's fight and that's it."
Mora told Flores that the best he could do was to deliver a message to Rocha to leave Flores alone. Flores responded: "Okay then. But that doesn't mean that he's gonna, is not that I want him to leave me alone I just, if he wants me to stop fucking, fucking with him then tell him to back the fuck off and let me get my kid because he's the one that has the say-so with my kid because he's telling the courts that this is who I am. I'm just telling you that he's an informant and you guys didn't see the damn thing on Facebook? [And] Enriquez it's the law firm that actually helped him out and they gave him 10,000 to become a, he even talked about it when he first got out, that he was waiting for 10,000 dollars." Flores continued: "Well, I'm looking at the recording that you know, they gave me, you know, that, that's all I gotta say [¶] ... [¶] ... Well that's what the women are, well it's not a recording but on the phone I have a fucking ear piece and they called me and said this is what you're going to say if he doesn't you know, you know you guys come to a confrontation."
At the end of the interrogation, Flores said: "I just like I said I just want him to you know give me his word, fuck it you know what I'm not, I just want to be with my son." He added: "Because I'm not gonna go to jail for this by myself. If we both, if we both are gonna go to jail then fuck it let's be it but if he's denying all this bullshit then fuck it then."
Recovery of the Gun and Related Ballistics Evidence
During Flores's interrogation, Officer Mora asked another officer to impound and search Flores's gray Durango. The search confirmed there was no contraband in the Durango. After interrogating Flores, Mora executed a search warrant at Flores's house, which also did not result in the recovery of any contraband. In the meantime, Flores was placed in a jail adjoining the Shafter police department. Mora went to the jail to interrogate Flores further. During this interrogation, which was not recorded, Flores told Mora that the gun was in the accordion, in his red truck. Mora then searched Flores's red truck; inside the accordion, he found a "Springfield [XP] handgun that was taken apart."
Further investigation revealed that the Springfield gun recovered from the accordion was registered to someone else, who had reported it stolen.
Apryl Brown, a criminalist with the Kern Regional Crime Lab, analyzed two bullets, one bullet fragment, and nine spent casings recovered from the shooting scene. Brown linked one of the bullets and all nine casings to Flores's gun. Her findings as to the remaining bullet and the bullet fragment were inconclusive. Defense Case Testimony of Maria Munoz
In June 2014, Maria Munoz lived at 224 East Marengo in Shafter. On June 25, 2014, just before dusk, Munoz saw some glass lying in the roadway; it looked like a "cup or glass that had fallen in the street." Two Hispanic men who "hung out" at the duplex on East Marengo were looking at it; one of them possibly lived there. When Munoz had driven by the same spot earlier in the day, she had not seen any glass. Munoz did not hear any gunshots that day. She noted, however, that "noises like that," from "people ... setting off fireworks, things like that," were not uncommon in the neighborhood. She further noted, given that the incident occurred shortly ahead of July 4th, that people were more prone to setting off fireworks at that time of year.
Flores's Trial Testimony
Flores had known Felipe Rocha since they were both children. Rocha had also worked at Flores's welding business. Flores was "having problems with ...Rocha" because Rocha had dated Flores's ex-girlfriend, Sonia L., when she and Flores were still a couple, and had assisted Sonia with a custody case involving Flores's son, his only child with Sonia. On Mother's Day, May 11 2014, Rocha finally admitted to Flores that he had slept with Sonia. In light of these issues, Flores wanted to "fight" Rocha, in the sense of a "boxing fight" not a shootout. On June 25, 2014, Flores's son told him that Rocha had been bothering him. Flores testified: "I want[ed] to go beat [Rocha's] ass, you know, and that's what I did." However, Flores did not take a gun with him when he went looking for Rocha; Flores did not have any guns.
Flores "drove by [Rocha's] apartment" in his Durango, and saw "two guys, three guys probably." Flores "went around the corner" to "burn time," but "came back with the intention to fight this guy." Flores parked in front of the apartment, got out, and walked "[t]owards the back" of his car, "[b]y the sidewalk." He explained: "I got off the car, and I stood right here .... There was some guy right here in front of the truck, but he was dodging, like if he was hiding. And I'm, like - I'm calling him out, like - I didn't yell or none of that. I was just like, "Hey, where's Bart at?" Nothing. No response." Flores added: "I know there's somebody in the back of the truck, which I thought it was him, you know, thinking he's probably scared or something, you know, because I really want to, you know, beat him up, so I'm thinking he's hiding from me." Flores continued: "And I said, 'Man you know what? I'm just going to go home.' As I'm leaving, I heard a gunshot. I go, 'What the hell?' But it came from this side of the street." Flores explained that as he walking to the rear of his Durango, he heard a bullet come from the "south side" of the street (Rocha's apartment was on the north side of the street).
Flores said the bullet hit the corner of his Durango; at a later point, the rear window of his Durango broke but he was not sure when that had happened. Flores noted he then heard several additional shots and was "surprised" a bullet did not hit him. Flores saw "a guy in the front and one behind" Flores; the one behind Flores was obscured by "some bushes." Flores believed Rocha was the person on the south side of the street, in the bushes behind him, and was shooting at him from that direction. Flores himself did not have a gun and did not fire any shots. He just got into his car and drove away. Flores was worried he would be followed, so he ditched his car at "The Projects" and then spent the night in a park. At 6:00 a.m. the next morning, he walked home.
On June 30, 2014, Flores called the police while he was under the influence of methamphetamine and was in a paranoid state; he had been up for about five days continuously and had not eaten anything either. Mora arrested him for being under the influence of a central nervous system stimulant and took him to the police station. At the police station, Mora and another officer quizzed him about a shooting, and showed him a police report. The officers said they knew about a shooting involving Flores and Rocha, noting that Rocha indicated Flores had shot him first. Flores said he admitted to shooting Rocha, so the officers would jail both of them and Flores would be able to "get" Rocha in jail. Flores did not remember what he said in the recorded interrogation; he had fallen asleep a few times during it. Flores denied placing, in the accordion, the .45-caliber gun discussed at trial. However, he had seen the gun before; the gun belonged to Rocha.
DISCUSSION
I. ADEQUACY OF TRIAL COURT'S INQUIRY INTO A JUROR'S POTENTIAL BIAS
Flores contends his state and federal constitutional rights to trial by an impartial jury and due process were violated "by the trial court's failure to conduct a sufficient inquiry" for purposes of ascertaining "whether a sworn juror was biased." (Capitalization and boldface omitted.) The potential for bias arose because the juror possibly worked at the same office, and had the same employer, as Flores's ex-girlfriend, Sonia L. Flores argues that the court conducted a cursory inquiry and consequently did not have the necessary information to properly determine whether the juror would be impartial in the matter. Assuming Flores's contention was properly preserved for review, we reject it.
A. Background
Flores's ex-girlfriend, Sonia L., was first mentioned at trial when Officer Mora alluded to her during his testimony. Mora stated that Flores had told him that he was upset with Rocha in part because of Rocha's involvement with Sonia. Following Mora's testimony, the court was advised that Juror No. 6 "may know or have some knowledge of [a] Sonia L[.]" The court decided to "speak to [the juror] briefly as to whether or not she knows Sonia L[.], whether or not if she does that would affect her decision making in any way." The court then had the following exchange with Juror No. 6, in the presence of Flores as well as counsel for both parties:
"[Juror No. 6]: Good Morning.
"THE COURT: How are you doing [Juror No. 6]?
"[Juror No. 6]: Fine.
"THE COURT: Good. Do you know an individual by the name of Sonia L[.]?
"[Juror No. 6]: I heard the name. I think she works at the Department.
"THE COURT: Okay. She wasn't on the witness list, so you would have had no knowledge that that name was even going to come up when we were doing jury selection. You know her? She work with you?
"[Juror No. 6]: Well I don't talk to her really. She was working as a receptionist, and we met probably twice, three times maybe.
"THE COURT: I'm not going to talk about the testimony you've heard, but you have heard some testimony that references Sonia L[.]; right?
"[Juror No. 6]: It never clicked. Yeah.
"THE COURT: If that happens to be the same individual, which there is no evidence it is or isn't, is that going to affect your ability to be a fair and impartial juror?
"[Juror No. 6]: Oh, no. No.
"THE COURT: Any questions from either counsel?
"[Defense Counsel]: Do you know Ms. L[.]'s family? Her mother? Her dad?
"[Juror No. 6]: No. I think - from what I heard, I think her husband is a truck driver, if it's the same person, but that's it.
"[Defense Counsel]: All right. Thank you."
Based on the foregoing colloquy, the court concluded there did not "appear to be any basis to excuse [Juror No. 6] or replace her." Defense counsel requested a mistrial, arguing there was a potential that Flores would be prejudiced on account of possible bias on the part of Juror No. 6. The court clarified that a mistrial was unwarranted because Juror No. 6 had not told the other jurors that she was acquainted with a Sonia L.; rather, the applicable remedy would be to excuse Juror No. 6 and replace her with an alternate juror. Counsel then asked the court to discharge Juror No. 6. The court declined to do so, explaining its rationale:
"I don't see any basis to do that. She said she knows her. She's met her and talked to her maybe once or twice. She thinks that Ms. L[.]'s husband is a truck driver, but she doesn't have any other information. She said that it's not going to affect her ability to be fair and impartial. If there's any additional information, I'm happy to consider it, but I don't see that rising to the level of
needing to excuse her. She clearly indicated she can continue to be fair and impartial. She did not hold back any information during jury selection because Sonia L[.] was never mentioned, so respectfully denied."
B. Analysis
Both the United States and California Constitutions confer on criminal defendants the "right to trial by an impartial and unbiased jury." (People v. Merriman (2014) 60 Cal.4th 1, 95; see U.S. Const. 6th Amend. ["[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury"]; Cal. Const., art. I, § 16 ["[t]rial by jury is an inviolate right and shall be secured to all"].) "'An impartial jury is one in which no member has been improperly influenced.'" (People v. Hensley (2014) 59 Cal.4th 788, 824.)
The trial court has the discretion, under section 1089, to discharge a sworn juror upon a showing of "good cause" regarding the juror's inability to "perform his or her duty." Specifically, section 1089 provides in relevant part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors." (Italics added.)
"'Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court's duty "to make whatever inquiry is reasonably necessary" to determine whether the juror should be discharged.'" (People v. Leonard (2007) 40 Cal.4th 1370, 1409; People v. McNeal (1979) 90 Cal.App.3d 830, 838 ["Once the court is alerted to the possibility that a juror cannot properly perform his duty to render an impartial and unbiased verdict, it is obligated to make a reasonable inquiry into the factual explanation for that possibility."]) "Such an inquiry is central to maintaining the integrity of the jury system, and therefore is central to the criminal defendant's right to a fair trial." (People v. Kaurish (1990) 52 Cal.3d 648, 694.) "While the court's decision will be given great deference, its discretion is not unfettered." (People v. Bell (1998) 61 Cal.App.4th 282, 287.) "The court must make a reasonable inquiry to determine whether the person in question is able to perform the duties of a juror. [Citation.] If the answer is in the negative, the inability to perform those duties must be shown on the record to be a 'demonstrable reality.'" (Id. at p. 287.) "Both the scope of any investigation and the ultimate decision whether to discharge a given juror are committed to the sound discretion of the trial court" and are subject to review for abuse of discretion. (People v. Bonilla (2007) 41 Cal.4th 313, 350; People v. Bradford (1997) 15 Cal.4th 1229, 1348; People v. Burgener (1986) 41 Cal.3d 505, 520-521, overruled on other grounds by People v. Reyes (1998) 19 Cal.4th 743; People v. Young (2017) 17 Cal.App.5th 451, 463 (Young).)
Here, the court conducted a hearing in the presence of Flores and both counsel on the question of the juror's ability to serve. (See Young, supra, 17 Cal.App.5th at p. 464, quoting In re Mendes (1979) 23 Cal.3d 847, 852 ["Unless the facts clearly establish a sufficient basis on which to reach an informed and intelligent decision, the court must conduct an appropriate hearing in the presence of litigants and counsel on the question of the juror's ability to serve."].) The court as well as defense counsel questioned the juror at the hearing in order to assess whether she was able to fulfill her duty. The juror stated she knew of a receptionist named Sonia L. at her workplace; all the juror knew about this person was that her husband was possibly a truck driver. The juror made clear that she had no more than a passing acquaintance with this person; the juror had only met her two or three times and did not "really" talk to her. In addition, the juror emphatically stated that her passing acquaintance with this person would not affect her ability to be fair and impartial in the instant case. Flores's reliance on People v. Abbott (1956) 47 Cal.2d 362, 371 is unavailing, as there our Supreme Court merely found the trial court did not abuse its discretion in discharging a juror who worked 25 feet away from the defendant's brother, so as to save the juror from "embarrassment or criticism."
We conclude the court conducted a reasonable and adequate inquiry to ascertain the relevant facts and properly determined there were no grounds to discharge Juror No. 6. Accordingly, we reject Flores's contention that the court's actions violated his state and federal constitutional rights to trial by an impartial jury and due process. II. CORPUS DELICTI OF OFFENSES OF ATTEMPTED MURDER AND ASSAULT WITH A FIREARM
In light of the possibility that we would decline to reach the merits of this claim on grounds of the lack of an appropriate objection below, Flores has raised an alternative claim of ineffective assistance of counsel. Specifically, he argues that counsel's failure to object specifically to the scope of the court's colloquy with Juror No. 6 amounts to ineffective assistance of counsel. However, in light of our conclusions that the court's inquiry was adequate and there were no grounds to discharge this juror, Flores cannot show that counsel's failure to object to the scope of the court's inquiry amounted to deficient performance or that it was prejudicial. Therefore, his claim of ineffective assistance of counsel also fails.
Based on the shooting at the duplex on East Marengo, Flores was convicted of the attempted premeditated murder of Felipe Rocha in count 1 and assault with a firearm on Felipe Rocha in count 2. Flores challenges the legal sufficiency of the evidence underlying these convictions, specifically the sufficiency of the evidence of the corpus delicti of each of these offenses. He argues the prosecution failed to establish the corpus delicti of these crimes independent of his own out-of-court statements. We disagree with Flores. The requisite independent proof of the corpus delicti applicable to attempted murder of Rocha and assault with a firearm on Rocha, respectively, was sufficient. We affirm his convictions on counts 1 and 2.
A. The Corpus Delicti Rule
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause." (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) As for crimes such as attempt, assault, conspiracy, reckless or drunken driving, et cetera, which do not require the doing of any actual harm, it is "more accurate to say that the corpus delicti embraces the fact that a crime has been committed by someone, i.e., that somebody did the required act or omission with the required mental fault." (1 LaFave, Substantive Criminal Law (3d ed. 2017) § 1.4.) "In California, it has traditionally been held, the prosecution cannot satisfy [the] burden [of proving the corpus delicti] by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant." (Alvarez, supra, at pp. 1168-1169.)
We note, however, that because a defendant's state of mind may be deduced from his commission of the prohibited act itself, corpus delicti, in some instances, does not encompass a defendant's state of mind. (See, e.g., People v. McGlothen (1987) 190 Cal.App.3d 1005, 1014 ["the state of mind of the perpetrator is not an element of corpus delicti"]; People v. Daly (1992) 8 Cal.App.4th 47, 59-60 [same]; but see People v. Lopez (1967) 254 Cal.App.2d 185 [corpus delicti of selling narcotics encompasses knowledge, on the defendant's part, that the substance being sold is a narcotic]; People v. Hawkins (2004) 124 Cal.App.4th 675 [corpus delicti of opening or maintaining a place for the purpose of unlawfully selling narcotics encompasses the perpetrator's purpose].)
In People v. Ochoa (1998) 19 Cal.4th 353 (Ochoa), our Supreme Court explained the law of corpus delicti in some detail. "The law of corpus delicti contains 'two distinct, though related, concepts .... First, the corpus delicti is a necessary element of the prosecution's case in a criminal trial .... Thus, a precondition to conviction is that the state prove that a 'crime' has been committed—otherwise there could not possibly be guilt, either in the accused or in anyone else. [¶] The second concept is closely related to the first. The 'corpus delicti rule' prohibits the prosecutor from establishing the corpus delicti ... through the use of the extrajudicial statements of the defendant. [Citations.] Thus the state must prove the corpus delicti independently of the accused's out-of-court declarations." (Id. at p. 404.)
Ochoa clarified that "'The purpose of the corpus delicti rule is to assure that "the accused is not admitting to a crime that never occurred."'" (Ochoa, supra, 19 Cal.4th at p. 405; see Alvarez, supra, 27 Cal.4th 1169 ["The [corpus delicti] rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened."].) Thus, when a defendant's statements are offered to prove the commission of a crime, "'"slight corroborating facts" ... must show independently "that a crime has been committed by someone."'" (Ochoa, supra, at p. 405) "'No universal and invariable rule can be laid down in regard to the proof of the corpus delicti. Each case depends upon its own peculiar circumstances.'" (Ibid.) However, the "modicum of necessary independent evidence of the corpus delicti, and the jury's duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be a 'slight or prima facie showing' permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant's statements may be considered to strengthen the case on all issues." (Alvarez, supra, 27 Cal.4th at p. 1181.) The proof necessary to establish the corpus delicti of an offense will be deemed sufficient so long as "it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citation.]" (Id., at p. 1171)
The longstanding rule in California was that "'once the corpus delicti has been proved by ... evidence [independent of the defendant's out-of-court statements], the extrajudicial statements then become admissible to determine the defendant's connection with the crime.'" (Ochoa, supra, 19 Cal.4th at pp. 404-405.) In Alvarez, the California Supreme Court modified this rule, after the electorate passed Proposition 8 in June 1982, adding the "Right to Truth-in-Evidence" provision to the California Constitution. (Cal. Const., art. I, § 28, subd. (d); see Alvarez, supra, 27 Cal.4th at p. 1165 [Proposition 8, adding § 28, subd. (d) to article I of the California Constitution, abrogated "any corpus delicti basis for excluding the defendant's extrajudicial statements from evidence."].) Alvarez explained: "Because of the adoption of section 28(d) [of article I of the California Constitution] through Proposition 8, there no longer exists a trial objection to the admission in evidence of the defendant's out-of-court statements on grounds that independent proof of the corpus delicti is lacking. If otherwise admissible, the defendant's extrajudicial utterances may be introduced in his or her trial without regard to whether the prosecution has already provided, or promises to provide, independent prima facie proof that a criminal act was committed." (Alvarez, supra, at p. 1180.)
However, Alvarez clarified that Proposition 8 did not eliminate the underlying corpus delicti rule itself. Thus, for the evidence supporting a conviction to be legally sufficient, the prosecution is still required to establish the corpus delicti of the relevant crime by proof that is distinct and separate from the defendant's extrajudicial statements. (Alvarez, supra, 27 Cal.4th at pp. 1165, 1180 ["section 28(d) did not abrogate the corpus delicti rule insofar as it provides that every conviction must be supported by some proof of the corpus delicti aside from or in addition to such statements, and the jury must be so instructed"] (italics in original).) Furthermore, "section 28(d) did not affect the rule to the extent it (1) requires an instruction to the jury that no person may be convicted absent evidence of the crime independent of his or her out-of-court statements or (2) allows the defendant, on appeal, directly to attack the sufficiency of the prosecution's independent showing." (Alvarez, supra, at p. 1180.)
B. The People's Forfeiture Argument
The People assert that Flores has waived his challenge to the sufficiency of the proof of the corpus delicti at issue here because he did not raise a corpus delicti objection to the admission of his extrajudicial statements at trial. The People rely on People v. Wright (1990) 52 Cal.3d 367, 404-405 (Wright), overruled on other grounds by People v. Williams (2010) 49 Cal.4th 405, which held the defendant had forfeited his challenge to admission of his extrajudicial statements on corpus delicti grounds because he had not objected to their admission at trial. The People also cite two court of appeal cases, People v. Martinez (1994) 26 Cal.App.4th 1098, 1103-1104 and People v. Sally (1993) 12 Cal.App.4th 1621, 1628, both of which, in turn, relied on Wright in holding that a defendant's failure to raise a corpus delicti objection to the admission of his extrajudicial statements waived any challenge, on appeal, to the sufficiency of the independent proof of the corpus delicti.
However, in Alvarez, our Supreme Court noted: "[California] courts traditionally consider claims of instructional error, and of insufficient proof, on their own merits, without reference to whether the defendant affirmatively sought, on corpus delicti grounds, to prevent the admission of his out-of-court statements, or whether those statements were properly allowed in evidence." (Alvarez, supra, 27 Cal.4th at p. 1178 [California corpus delicti law requires "a jury instruction" on the corpus delicti rule and makes "insufficient independent proof of the corpus delicti a discrete ground for reversal on appeal"].) Alvarez further clarified: "No decision of this court, including Wright, has suggested that an evidentiary objection at trial is a prerequisite to raising instructional and sufficiency claims on appeal." (Alvarez, supra, at p. 1172, fn. 8, italics in original; see People v. Parra (1999) 70 Cal.App.4th 222, 224, fn. 2 ["sufficiency of the evidence issues are never waived"]; People v. Lara (1994) 30 Cal.App.4th 658, 675 [failure to raise corpus delicti objection to admission of extrajudicial statements does not waive claim that corpus delicti instruction was improperly omitted].) Finally, Alvarez explained that, in any event, in light of article I, section 28, subdivision (d) of the California Constitution, as added by Proposition 8, "a corpus delicti objection to the introduction of defendant's statements is no longer valid." (Alvarez, supra, at p. 1177.) We conclude that Flores has not forfeited his corpus delicti claims and will address the merits of these claims.
Flores's counsel did file a motion for new trial as to the counts of attempted murder and assault with a deadly weapon on grounds that the prosecution had failed to establish the corpus delicti with evidence that was independent of Flores's extrajudicial statements. The trial court denied the motion.
C. Sufficiency of Proof of Corpus Delicti of Attempted Murder of Rocha and Assault with a Firearm on Rocha
Here, both parties agree that the jury was properly instructed on the corpus delicti rule. Specifically, the jury was instructed pursuant to CALCRIM No. 359:
"The defendant may not be convicted of any crime based on his out-of-court statement[s] alone. You may rely on the defendant's out-of-court
statements to convict him only if you first conclude that other evidence shows that the charged crime [or a lesser included offense] was committed.
"That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.
"This requirement of other evidence does not apply to proving the identity of the person who committed the crime [and the degree of the crime.] If other evidence shows that the charged crime [or a lesser included offense] was committed, the identity of the person who committed it [and the degree of the crime] may be proved by the defendant's statements alone.
"You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt."
People v. Reyes (2007) 151 Cal.App.4th 1491, 1498 explained: "Under CALCRIM No. 359, a jury may not consider a defendant's out-of-court statement unless the jury concludes that 'other evidence shows that the charged crime ... was committed.' A crime consists of specified elements; if evidence of any of the requisite elements is lacking, a defendant has not committed a crime. There is no difference between an instruction that cautions that there must be evidence on each element of the charged crime and one that cautions that there must be evidence that a crime was committed. These phrases describe the same set of requirements." (See People v. Foster (2010) 50 Cal.4th 1301, 1345 [clarifying, in upholding CALJIC No. 2.72 jury instruction on corpus delicti, that the "elements of a crime must be proved by evidence independent of any admission made by the defendant outside of the trial"]; also see CALJIC No. 2.72 ["No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any [confession] [or] [admission] made by [him] [her] outside of this trial."].)
Flores's corpus delicti challenge relates to his convictions for attempted murder and assault with a firearm. The jury was instructed on attempted murder pursuant to CALCRIM No. 600. The elements of attempted murder are: (1) [A person] took at least one direct but ineffective step toward killing another person; and (2) [The person] specifically intended to kill that person. (See CALCRIM No. 600; People v. Guerra (1985) 40 Cal.3d 377, 386 [specific intent to kill is required for attempted murder].) "A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt." (CALCRIM No. 600.)
As for assault with a firearm, the jury was instructed on it pursuant to CALCRIM No. 875. The elements of assault with a firearm are: (1) [A person] did an act with a firearm that by its nature would directly and probably result in the application of force to another person; (2) [The person] did that act willfully; (3) When [the person] acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (4) when [the person] acted, he had the present ability to apply force with a firearm to another person. (See CALCRIM No. 875; People v. Delacerda (2015) 236 Cal.App.4th 282, 291.)
We now turn to a consideration of the record to assess whether independent evidence, distinct and apart from Flores's extrajudicial statements, establishes the corpus delicti of the crimes of attempted murder of Rocha and assault with a firearm on Rocha. We must evaluate whether the independent evidence supports a reasonable inference that the offenses of attempted murder and assault with a firearm were committed. (See CALCRIM No. 359 [instructing the jury that it could "rely on the defendant's out-of-court statements to convict [him] only if [it] first conclude[d] that other evidence shows that the charged crime [or a lesser included offense] was committed"] (italics added).) Here, there was no eyewitness to the shooting, no one saw Flores or Rocha at the duplex during the shooting itself, and no direct evidence placed Rocha at his apartment where he would be susceptible to being hit by gunshots. Nonetheless, independent evidence supports a reasonable inference that Rocha was present at his apartment when the shots were fired. Moreover, proof of the corpus delicti does not require independent evidence of Rocha's precise position during the shooting.
"An inference is a deduction of fact that may logically and reasonably be drawn from another fact of group of facts found or otherwise established in the action (Evid. Code, § 600, subd. (b).)
Independent evidence shows that (1) someone fired at least nine shots from a .45-caliber semiautomatic handgun from in front of the duplex, (2) multiple shots from that gun were fired at, and struck, Rocha's black pickup truck parked in the driveway as well as inside his apartment (286 East Marengo), and (3) minutes after hearing the gun shots, Alcaraz (Rocha's neighbor) saw Rocha leaving his apartment in his BMW. In light of this evidence, the jury could reasonably infer that, at the time of the shooting, Rocha's BMW was parked in the driveway, and, in turn, that Rocha was present at his apartment. The multiple shots to Rocha's truck and penetrating his apartment reasonably support a further inference that someone was shooting to kill Rocha.
We conclude sufficient evidence established the corpus delicti of attempted murder because the jury could reasonably infer, based on evidence independent of Flores's extrajudicial statements, that Rocha would have been killed but for a fortuitous circumstance outside the shooter's plan, namely, bad aim. (See CALCRIM No. 600 [attempted murder requires a "direct step" toward killing another person; a direct step, in turn, "indicates a definite and unambiguous intent to kill" and encompasses the setting in motion of a plan to kill, which "would have been completed" if not for an extraneous circumstance outside the plan]; Ochoa, supra, 19 Cal.4th at p. 450 ["The corpus delicti ... consists of at least slight evidence that somebody committed a crime."].) Based on the same rationale, proof of the corpus delicti of assault with a firearm was also sufficient.
In light of our conclusion that proof of the corpus delicti of attempted murder of Rocha and assault with a firearm on Rocha was sufficient, we affirm convictions on counts 1 and 2. III. FLORES'S CONVICTIONS FOR SHOOTING AT AN INHABITED DWELLING HOUSE (2 COUNTS)
The trial court sentenced Flores to a 10-year term on a sentence enhancement for personal use of a firearm under section 12022.5, that was attached to Flores's conviction for attempted murder. Subsequently, during the pendency of this appeal, Senate Bill 620 (signed by the Governor on October 11, 2017, and effective January 1, 2018), amended section 12022.5, subdivision (c), to provide, in pertinent part:
"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (Stats. 2017, ch. 682, §§ 1-2.)
The duplex on East Marengo that Flores shot at contained two independent apartments, 284 East Marengo and 286 East Marengo, which were occupied by separate tenants. The police investigation into the shooting revealed that bullets had struck both units. Specifically, Officer Cervantes testified that a bullet hole caused by a .45-caliber bullet was discovered on the stucco exterior of 284 East Marengo. Bullet holes were also discovered inside 286 East Marengo. In light of this evidence, the information charged Flores with two counts of shooting at an inhabited dwelling house under section 246: one count pertained to 284 East Marengo and the other count pertained to 286 East Marengo.
Section 246 provides: "Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar ... or inhabited camper ... is guilty of a felony."
Specifically, the information alleged in counts 3 and 4:
"Count: 003, on or about June 25, 2014, Eduardo Flores did willfully, unlawfully, and maliciously discharge a firearm at an inhabited dwelling house, occupied building, inhabited housecar or inhabited camper, located at 286 East Marengo, Shafter, CA 93263, in violation of Penal Code section 246, a felony. [¶] ... [¶]
"Count: 004, on or about June 25, 2014, Eduardo Flores, did willfully, unlawfully, and maliciously discharge a firearm at an inhabited dwelling house, occupied building, inhabited housecar or inhabited camper, located at 284 East Marengo, Shafter, CA 93263, in violation of Penal Code section 246, a felony." (Some capitalization omitted.)
Flores now argues that he was "improperly convicted" of two counts of shooting at an inhabited dwelling house. With reference to section 246, which prohibits shooting at an "inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar ... or inhabited camper," he contends that "[s]ection 246 sets forth the different types of shootings that are prohibited by the statute, and as such they constitute different statements of the same offense." Flores further argues: "Although the evidence established that [Flores] fired shots that struck both occupied dwellings in the duplex, [he] only fired at one occupied building, and thus he can only be convicted of one violation of section 246." We reject this contention, as Flores's convictions on two counts pursuant to section 246 were proper under section 954.
Our Supreme Court has explained:
"[S]ection 954 provides: 'An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts .... The prosecution is not
required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged ....' We have repeatedly held that the same act can support multiple charges and multiple convictions. 'Unless one offense is necessarily included in the other [citation], multiple convictions can be based upon a single criminal act or an indivisible course of criminal conduct (§ 954).' [Citation.] Section 954 thus concerns the propriety of multiple convictions, not multiple punishments, which are governed by section 654." (People v. Gonzalez (2014) 60 Cal.4th 533, 536-537.)
More recently, the California Supreme Court has clarified that while section 954 permits charging a defendant with different statements of the same offense in multiple counts, a defendant cannot be convicted of different statements of the same offense, in multiple counts, based on the same act or course of conduct. (People v. Vidana (2016) 1 Cal.5th 632, 649-651 (Vidana).)
Relying on Vidana, supra, 1 Cal.5th 632, Flores argues he was wrongly convicted of two different statements of the same offense based on the same course of conduct. Specifically, he contends: "Since shooting at an inhabited dwelling house and shooting at an occupied building are two different statements of the same offense, [Flores] was improperly convicted of both counts, [one of which should be stricken]." In Vidana, our Supreme Court concluded that "larceny and embezzlement are different statements of the same offense." (Id. at p. 649.) Vidana then explained: "[Section 954] authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct." (Id. at p. 650.)
Vidana, however, does not control the outcome here because, unlike the defendant in Vidana, Flores was not charged with two different statements of the same offense; rather he was charged, under section 246, with two distinct, completed offenses of shooting at an inhabited dwelling house. Under section 954, multiple convictions for the same offense are permitted when the defendant has committed multiple completed crimes as determined by the statutory elements of the charged offense. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474-1477.) Stated differently, if the defendant committed multiple completed crimes under the same statute, the prosecution may properly charge each completed offense under the statute as a separate count. (Id. at pp. 1473-1477.)
The evidence in the instant case showed that Flores fired at least one shot at 284 East Marengo and at least one other shot at 286 East Marengo. Thus, each count of shooting at an inhabited dwelling house was based on a different act. Furthermore, each unit of the duplex constituted a separate inhabited dwelling house. (See People v. Jischke (1996) 51 Cal.App.4th 552 [apartment buildings contain multiple, separate dwelling units for purposes of § 246].) Accordingly, Flores committed at least two distinct completed offenses of shooting at an inhabited dwelling house. He was therefore, appropriately convicted of two counts under section 246. IV. FLORES'S CONVICTION FOR NEGLIGENT DISCHARGE OF A FIREARM
The jury here was instructed with CALCRIM No. 965, which sets forth the elements of shooting at an inhabited dwelling house:
"The defendant is charged in Counts THREE and FOUR with shooting at an inhabited house IN violation of Penal Code section 246. [¶] To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant willfully and maliciously shot a firearm; [¶] [AND]
"2. The defendant shot the firearm at an inhabited house [¶] [AND]
"3. The defendant did not act in self-defense."
Both parties agree that Flores's conviction for negligent discharge of a firearm (§ 246.3, subd. (a); count 5) must be reversed because it is a lesser included offense of shooting at an inhabited dwelling house (§ 246). (People v. Ramirez (2009) 45 Cal.4th 980, 990 [§ 246.3 is a necessarily included lesser offense of § 246].)
When, as here, "a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed." (People v. Sanders (2012) 55 Cal.4th 731, 736.) Accordingly, granting the request of both parties, we will reverse Flores's conviction on count 5.
DISPOSITION
Flores's conviction on count 5 is reversed. In addition, his sentence is vacated and the case remanded for resentencing in light of section 12022.5, subdivision (c), as amended by Senate Bill No. 620. (Stats. 2017, ch. 682, §§ 1-2.) In resentencing Flores, the trial court shall also consider whether the sentence imposed for Flores's conviction for shooting at an inhabited dwelling, i.e., Rocha's apartment at 286 East Marengo (count 3), must be stayed pursuant to section 654, in light of Rocha's sentence for attempted murder (count 1). The judgment is affirmed in all other respects.
In the event the trial court decides that section 654 applies to Flores's sentence on count 3, the principal count for purposes of the determinate sentence would potentially be count 4. --------
/s/_________
FRANSON, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
MEEHAN, J.
The amendment grants trial courts new discretion—discretion that previously did not exist—to strike a section 12022.5 firearm enhancement. Both parties, in supplemental briefs, agree this amendment is retroactive under In re Estrada (1965) 63 Cal.2d 740, 745. In turn, the parties request remand so the trial court may reconsider, in light of the amendment, the sentence it previously imposed for the firearm enhancement at issue here. We agree that remand is appropriate. On remand, the trial court may exercise its discretion to strike the section 12022.5 enhancement outright, or, in light of the ameliorative intent underlying the amendment, to impose a lower term than the term previously imposed; alternatively, the court may reinstate the previous sentence.