Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 188771
Pollak, Acting P. J.
Defendant Christopher Anthony Bautista was convicted of attempted voluntary manslaughter and other crimes committed during a street fight. He challenges the prosecutor’s use of peremptory challenges during jury selection, comments made by the prosecutor during closing arguments, and he argues that his conviction on two counts should have been stricken as lesser included offenses. We agree that one of the offenses was a lesser included offense and must be stricken. Otherwise, we find no merit in defendant’s contentions and shall affirm.
Background
There was substantial evidence of the following facts at trial. Casey Kirichenko testified that on the night of September 21, 2002, and into the early hours of September 22, he was at a nightclub in San Francisco with James Albon. They left the club around 1:30 a.m. and went looking for some friends. After driving for a while, they parked the car and began walking. They stopped at a street corner and Kirichenko made a call on his cell phone while Albon spoke with someone on the street. Kirichenko testified that he remembered Albon “saying something to a guy. And the next thing I remember I noticed a bunch of commotion started and I remember getting out my phone and a lot of people just started coming out of nowhere. Like a lot of guys. And I could tell something was going to happen. [¶] . . . [¶] I remember words being exchanged and like I said a lot of different guys coming out and me and James started walking.” Kirichenko estimated that they were followed by eight to ten men. One of the men was “kind of jumping around. Acting like he had a gun. Like kind of putting his hand down his belt buckle area.” The man was saying “What’s up blood?” “[A] couple guys acted like they were going to hit James. And I remember James flinching a little bit. And I remember them saying, ‘Oh, you’re scared’ or something.” Kirichenko remembered that he was shot, but did not remember much of the surrounding events. “I remembered something happening and that was the point where I had been shot. But actually I remember running one way and I fell and I ran another way and fell again. And I kind of . . . got up and tried running into this, I guess it would have been a strip club, some sort of club, trying to get in the door. And I remember telling them, ‘You need to help me. Something is not right.’ I didn’t know I had been shot at that time. And they wouldn’t let me in. . . . So out in front. I just sat down on the wall.” He looked down and saw that his “pants were soaked in blood.” Police officers who were passing by saw him and when he said, “Hey, I’m hit,” they “laid me down and ripped my clothes off and took me off in an ambulance.” At trial, Kirichenko did not recognize anyone in the courtroom from that night.
James Albon testified that he was with Kirichenko the night of the shooting. The two men were walking on Broadway Street in San Francisco trying to locate some friends. Albon was waiting for Kirichenko to finish a phone call when he saw defendant standing in a doorway. Albon asked defendant “what he was guarding.” He asked for “[c]onversation. I was bored. . . . I couldn’t see what was behind him.” Defendant replied, “Fuck you,” and when Albon asked, “What?” defendant replied, “Fuck you blood.” Albon said, “Fuck you.” Defendant then “ran to the corner of Columbus and Broadway and started jumping up and down yelling for his friends to come here to come to the location where we’re at.” Albon and Kirichenko “started walking away” because they “both agreed that this wasn’t anything we wanted to get into.” A group began following them and approximately seven to ten men surrounded them on the sidewalk. One of the men made a fist and motioned as if he were going to hit Albon. He asked Albon if he was scared. Albon replied, “Well, there’s ten of you and two of us. So what do I look like? I have stupid written all over my forehead?” The two began walking away again, but again were surrounded. One of the men, David Shelby, punched Albon in the chin. Someone else punched the back of his head. Defendant also swung at Albon, but it is not clear from Albon’s testimony whether defendant made contact. Albon saw Shelby fighting with Kirichenko and defendant standing by a wall behind them. He “heard a gunshot and the first thing I saw was David Shelby run . . . away . . . towards the water.” He then saw defendant “running in the same direction.” He saw Kirichenko fall but did not realize he had been shot.
A patrol sergeant with the San Francisco Police Department testified that he was on duty the night of the shooting. When he arrived at Broadway and Kearny, he saw defendant and Shelby running down the street. He yelled at them to “Get down on the ground.” The sergeant grabbed defendant by his shoulder and “brought him down to the ground.” He pointed his gun at Shelby and “continued to shout, ‘Get down on the ground.’ ”
A police officer found a 9 millimeter semiautomatic handgun in the waistband of defendant’s pants. A firearms examiner for the San Francisco Police Department testified that the shell casing and bullet found on the sidewalk where Kirichenko was shot were both fired from the 9 millimeter semiautomatic handgun that was taken from defendant. Gunshot residue was found on both of defendant’s hands. A partial fingerprint on the magazine of the gun taken from defendant matched his right thumbprint.
After he was arrested, defendant told the police that a man “asked me some kind of question. I don’t know, I forgot what he asked me. And, like, we get into like a little shove match. [¶] . . . [¶] . . . And after that when I started pushing, he just—like there’s so many people on the block. People started swinging, punching and all that. Then that man pulled out . . . the little gun. [¶] . . . [¶] [T]he White guy pulled out the gun. . . . I just take charge. I grabbed it and this thing went off and I took off. That’s about it.”
Defendant was charged by information with 1) attempted murder (Pen. Code,§§ 187, 664); 2) assault with a semi-automatic weapon (§ 245, subd. (b)); 3) assault with a firearm (§ 245, subd. (a)(2)); 4) assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)); 5) carrying a concealed and loaded firearm by a nonregistered owner (§ 12025, subd. (a)(2)); and 6) carrying a loaded firearm in a public place by a nonregistered owner (§ 12031, subd. (a)(2)(F)). Counts 1 through 4 alleged that defendant had caused great bodily injury (§ 12022.7, subd. (a)), and the first count alleged that defendant had personally and intentionally discharged a firearm (§ 12022.53, subd. (c)). The second, third, and fourth counts also alleged that defendant had personally used a firearm (§ 12022.5, subd. (a)).
All statutory references are to the Penal Code.
The jury found defendant not guilty of attempted murder but guilty of attempted voluntary manslaughter, and guilty of all remaining counts. The allegations that he used a firearm and caused great bodily injury were found true as to counts 2, 3, and 4. Defendant was sentenced to the midterm of six years on count two plus three years for the great bodily injury enhancement and three years for the gun use enhancement, for a total of 12 years. The court suspended execution of the sentence and placed defendant on five years’ probation with the condition that he serve one year in county jail in addition to receiving credit for 1400 days for time already served. The court imposed concurrent sentences of one-third the midterm on counts one and five and suspended execution. The court stayed imposition of sentence on counts three, four, and six under section 654. Defendant timely appealed.
Discussion
Wheeler/Batson error
Defendant argues that the prosecution used peremptory challenges to dismiss three African American men from the jury in violation of the constitutional principles set forth in People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson). “ ‘Exercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution.’ ” (People v. Cleveland (2004) 32 Cal.4th 704, 732.) “In a recent decision, the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant’s are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” ’ ” (People v. Cornwell (2005) 37 Cal.4th 50, 66-67.) In making this decision, “the trial court must make a ‘sincere and reasoned attempt to evaluate the prosecutor’s explanation’ to determine whether the proffered reasons are bona fide.” (People v. Perez (1994) 29 Cal.App.4th 1313, 1327.) “Under Wheeler, there is a presumption that a prosecutor uses his peremptory challenges in a constitutional manner. [Citation.] . . . Under both Wheeler [citation] and Batson [citation], the defendant need not be a member of the group in question in order to complain.” (People v. Alvarez (1996) 14 Cal.4th 150, 193.)
We give great deference to the trial court’s findings under the third step of this analysis (Batson, supra, 476 U.S. at p. 98, fn. 1), and review the trial court’s evaluation of proffered nondiscriminatory reasons for substantial evidence (People v. McDermott (2002) 28 Cal.4th 946, 971). “So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.” (People v. Burgener (2003) 29 Cal.4th 833, 864.)
In this case, the prosecutor used three peremptory challenges to strike all of the African-American men present on the jury panel, although one African-American woman remained on the jury. We review the circumstances with respect to each of the three African-American men in turn.
Mr. W. stated that he had worked as a meter reader for a utility company for 15 years. He had been robbed at knife point approximately five years before the trial. He said that he reported the robbery to the police but “just nothing” was done. He spoke with the police, but felt that they responded as if the attack was “[j]ust another thing.” When asked, “Did you feel in any way that [the police] didn’t give you good service . . . ?” he replied, “Well, frankly I, when I see the police I go another way. I don’t like to be too much involved with officers.” When asked how he would feel about the police who would be testifying in the case, Mr. W. replied, “Well, I’ll take what they say but I do have some things about officers that I don’t always believe what they say right off the bat. Sometimes I believe they have other motives.” He added that his skepticism toward the police came from “mostly personal experiences” in San Francisco and explained further that “I’ve always been pulled over a lot. And just go through a little routine and then you go home.” Nevertheless he stated that his personal experience would not affect his view of the police testimony and that he “believe[d]” that he could keep an open mind. Finally, when asked, “It sounds like [the police are] going to be starting off with you not only not on a level playing field, you’re going to be somewhat skeptical?” he replied, “I think they have an even playing field. I do have some reservations, though.”
The prosecutor challenged Mr. W. and defendant objected, citing Batson and Wheeler. Although the trial court indicated that a prima facie case of a discriminatory challenge had not been made, the court asked the prosecutor why she had dismissed Mr. W. The prosecutor explained, “I excused Mr. W[.] because his answers about the police gave me pause. That is why I discussed it at length with him. . . . [H]e brought up the issue because he said, ‘I have some reservations about police officers.’ . . . And he cited the fact that he had been stopped several times by police officers and he appeared to me to harbor a resentment against them. And my sense was that he was not being completely forthright. . . . [J]ust the fact he was stopped by police officers would not cause me to excuse him. But it’s the fact that he kept bringing it up . . . . Because it is police officers who actually found the gun on the defendant. So my instincts were and his answers supported it that he would not be able to give police officers the same evaluation as he would other witnesses. . . . And his answers were consistent. He continually said there will be something in the back of my mind or you know just said to me loud and clear that there’s something that happened that he harbors a resentment and he would not be fair. Otherwise I would have selected him as a juror. I thought he would be a perfect juror. He’s a working man, same company for 15 years, and he has children. But . . . what he said about police officers really caused me concern especially because my case is partially dependant on that.”
The prosecutor elaborated, “[T]he first thing he said to me was, and I didn’t really prompt this, he volunteered this ‘when I see police officers I walk the other way.’ That immediately sent a red flag in my mind . . . . And I questioned him pretty extensively and I don’t believe that in his answers to me that he was forthright about why he would have reservations believing a police officer. I think that’s pretty clear on the record.” By contrast, the prosecutor pointed out that another prospective juror “was obviously irate because her car was towed. But then under questioning by [the defense attorney] she said that she wouldn’t hold that against every police officer . . . and to me it was very clear why she was upset whereas with Mr. W[.] it appeared that he was not telling us . . . exactly why when he s[ees] police officers he walks the other way. I thought his answers were somewhat evasive with me and I would have kept him as a juror; I wanted to as I said before. But his reservations about police officers really gave me pause and I simply felt that I would be remiss if I kept him as a juror.”
The trial court dismissed Mr. W. from the jury.
Mr. V. stated that he was single, had no children, and had worked in “mail services” at a university for two months. Before that, he had worked as a mail handler for the United States Postal Service for nine months. When the prosecutor sought to excuse him, defendant objected, arguing, “this is the second African-American that is being challenged and peremptorily challenge[d] and his answers . . . speak for itself [sic], he did not raise a single issue both on questioning by the district attorney or questioning by the defense that even varied from any of the other people who have been allowed to remain.” The prosecutor replied with her “nondiscriminatory reasons why I challenged Mr. V[.] I spoke to him. I noticed that he was wearing a long T-shirt. That he had headphones around his neck right there. I thought that showed in my opinion . . . a lack of respect. I generally don’t like jurors who come in with headphones around their necks. I didn’t notice anybody else with that. That bothered me right there. Secondly, I didn’t think he had a very long work history at either place he was at. And having practiced employment law for the postal service it’s very unusual for someone to just get laid off; casuals are usually rehired. It just bothered me. He had a very brief history there and a brief history at UC San Francisco. He is young. And I have picked other young jurors. However, I didn’t feel that the type of work that he did and his work history was solid enough for me to select him as a juror. I also didn’t think that he was very receptive to me. He didn’t maintain eye contact with me. I noticed that he did however with the defense attorney and [was] more receptive with [him].” Defendant argued that Mr. V. had not been listening to his headphones and speculated that he might be wearing them around his neck “so he doesn’t lose it because people in the Hall of Justice steal all the time.”
Without commenting on whether the defense had made a prima facie showing, the court found that the prosecutor “has stated her nondiscriminatory reasons. And I think they are [valid]. I think certainly there are issues that she can consider.” Defendant asked “how many people of his age have been seated in this jury panel,” and the prosecutor replied that she did not know the age of every juror but that in any event, “It wasn’t one reason. A whole composite. He presented to me, including his nonverbal language to me, his lack of eye contact, I didn’t think he was receptive to me for all of those reasons.” The trial court then dismissed Mr. V.
Mr. D. stated that he was single, had no children, was an artist, and had not served on a jury before. He had lived in the same neighborhood for approximately 15 years. The prosecutor asked him if seeing defendant’s family in the courtroom “might affect the way you look at the evidence in this case.” He replied that “It shouldn’t. [¶] . . . [¶] Because if I’m listening to the evidence I’m not going to be worried about how his family looks or doesn’t look[]. That’s what you want me to do. That’s what I want to do. So that’s what I should do.” The prosecutor then asked if he could “imagine . . . writing guilty on a verdict sheet.” Mr. D. replied, “I can imagine myself in all sorts of situations but assuming that I follow the rules of the game then I must answer accordingly.”
The prosecutor sought to excuse Mr. D. Defendant argued, “this will now be my third Batson/Wheeler challenge as to African-Americans. Those individuals so far have consistently been male of varying ages. . . . And Mr. D[.] is the last of the African-American males from my view of the panel who could be a potential juror . . . . [¶] . . . And I believe that I have now made a prima facie [case] that there has now been a pattern as it relates to African-American [jurors] and specifically that Mr. D[.] has been excused and I thought he was quite intelligent and forthright in his answers.” The court found that “there is a prima facie showing of people being excluded on the basis of race.” The district attorney observed that there was an African-American woman who had not been challenged. She continued, “As to Mr. D[.], he is a fine arts painter and oil painter. He has long hair and a ponytail. I can’t imagine why any prosecutor would leave such a person on a jury. He seems to me to be the least likely to convict because of what he does and the fact that he has long hair and a ponytail and also his answer to my question when I asked him, ‘Can you imagine yourself finding the defendant guilty after listening to all the evidence,’ I found to be evasive, ambiguous, and not forthright at all. And it wasn’t the answer I was looking for. And based on all those reasons, just his tone of voice in talking to me, he didn’t seem to be a very receptive juror to the prosecution at all. And I should note that it makes no difference to me what someone’s race or ethnicity or nationality is. If they’re a fine arts painter with long hair and a ponytail, it is very very likely that I would challenge them.” Defendant clarified that “This gentleman is not wearing dreadlocks. He is wearing his hair in a very neat fashion. [¶] . . . [¶] Tied back in a ponytail and in fact fashioned in a way that it would appear it was professionally done. And so therefore the real crux of the matter is, is it really his hairstyle or is it his job or a combination of the two?” The court added, “I’m also looking at the challenges the People have made. The People did also exclude Mr. Wa[.] who . . . was a young appearing Caucasian male who had longish hair. . . . [¶] . . . [¶] And a beard. And was very young looking.” The prosecutor added that she had “also excused Mr. M[.] . . . who is also a young appearing White male with a beard.” Regarding Mr. Wa., the prosecutor stated, “I thought he had sort of a Bohemian look which Mr. D[.] also had . . . . He just looked Bohemian and nonconformist I guess is the way to say it.” She pointed out that no one who was an artist or had long hair had been left on the jury.
The trial court stated, “I have looked at all of the jurors that were dismissed and I find that the reasons that [the prosecutor] has stated are not pretextual. I think that I was myself . . . somewhat taken aback by Mr. W[.]’s adamant sort of volunteering that information, ‘Whenever I see police officers I walk the other direction.’ It was very spontaneous and rather adamant. And I can see where she would want him off. I also think that if you look at a pattern that [the prosecutor] is, is eliminating sort of, we used the term Bohemian types, but people who are not on the straight and narrow which is a typical kind of DA dismissal, . . . but if they’re coming in like they’re holding down a job and looking completely nine to fivers or whatever, then she’s keeping them on. I made a comparison between Mr. Wa[.] and Mr. D[.] I think they both had the same characteristics and to a certain degree Mr. Wa[.] and the second juror second African-American juror Mr. V[.] had similar kind of young hip not your nine to fivers.”
It is unnecessary to consider whether a sufficient prima facie case had been made with respect to the first two disputed challenges, because in each instance the court obtained an explanation of the prosecutor’s reasons for the challenges. (People v. Welch (1999) 20 Cal.4th 701, 745-746 [“When a trial court, after a Wheeler/Batson motion has been made, requests the prosecution to justify its peremptory challenges, then the question whether defendant has made a prima facie showing is either considered moot [citation] or a finding of a prima facie showing is considered implicit in the request”].) In each case the trial court either implicitly or explicitly found the prosecutor’s explanation to be plausible, genuine and nondiscriminatory. There is little doubt that the record supports this finding with respect to the reasons for excusing Mr. W. He stated that he had multiple negative experiences with the police, including being pulled over, impliedly on the basis of his race, and feeling that he had received scant attention after being the victim of a robbery. He also expressed doubts about police credibility in general, stating, “Well, I’ll take what they say but I do have some things about officers that I don’t always believe what they say right off the bat. Sometimes I believe they have other motives.” “[T]he use of peremptory challenges to exclude prospective jurors whose relatives and/or family members have had negative experiences with the criminal justice system is not unconstitutional.” (People v. Douglas (1995) 36 Cal.App.4th 1681, 1690; see also People v. Avila (2006) 38 Cal.4th 491, 545 [peremptory challenge to African American juror does not raise a prima facie inference of bias where individual had “personal experience that police officers lied”]; People v. Jordan (2006) 146 Cal.App.4th 232, 254 [peremptory challenge properly exercised where prospective juror stated “that the first thought that came to mind when she thought of police was ‘racial profiling’ ”].)
The second African-American panel member, Mr. V., was young and had scant recent employment history. Employment can be a permissible, nondiscriminatory reason to exercise a peremptory challenge. (See, e.g., People v. Trevino (1997) 55 Cal.App.4th 396, 411-412.) The prosecutor also observed that Mr. V. was not “very receptive to me. He didn’t maintain eye contact with me. I noticed that he did however with the defense attorney and [was] more receptive with [him].” “Peremptory challenges based on counsel’s personal observations are not improper.” (People v. Perez, supra, 29 Cal.App.4th at p. 1330.) Further, the prosecutor expressed her concern with his overly casual attire and the fact that he wore headphones around his neck during voir dire. Indications that a potential juror is not respectful are also valid reasons to use peremptory challenges. (See, e.g., United States v. Power (9th Cir.1989) 881 F.2d 733, 740 [excused juror “was fidgeting and looking around as he sat in the jury box”].) Although defendant questioned whether Mr. V.’s attire was inappropriate and offered an alternative explanation for the headphones, the prosecutor was nonetheless within constitutional limits in exercising her challenge for this reason. (See People v. v. Jordan, supra, 146 Cal.App.4th at p. 255 [“the fact that defense counsel did not think that gum chewing was disrespectful does not call into question the credibility of the prosecutor’s reasons for excusing” a juror].) “ ‘[N]othing in Wheeler disallows reliance on the prospective jurors’ body language or manner of answering questions as a basis for rebutting a prima facie case’ of exclusion for group bias.” (People v. Reynoso (2003) 31 Cal.4th 903, 917, 925 [peremptory challenge proper where prosecutor believed that potential juror “was not paying attention to the proceedings, and that he felt she was not sufficiently involved in the jury selection process to make a good juror”].)
As for Mr. D., challenging a prospective juror because of personal appearance is permissible. (See, e.g., Purkett v. Elem (1995) 514 U.S. 765, 769 [prosecutor’s proffered reason for striking juror—that he had long hair and a beard—deemed to satisfy burden of providing a nondiscriminatory reason].) And Mr. D.’s answers to the prosecutor’s questions can reasonably be construed as evasive. His answers were hedged in terms of what he “should” do as a juror, and what he would do “assuming” that he followed “the rules of the game.” These conditional answers were not direct or clear, and plausibly caused the prosecutor to fear that Mr. D. would not follow the jury instructions. (People v. Monteil (1993) 5 Cal.4th 877, 909; see also People v. Zambrano (2007) 41 Cal.4th 1082, 1108-1109 [juror’s evasive answers about support for the death penalty were legitimate reason to excuse her from penalty phase jury].)
Thus, the trial court’s finding that the prosecutor did not exercise her peremptory challenges in a discriminatory manner is amply supported by the record. The prosecutor provided legitimate reasons for each of her challenges and the court found those reasons to be genuine. The prosecutor engaged each prospective juror in adequate voir dire to support her proffered nondiscriminatory reasons for excusing them. The panel members that were struck shared characteristics with other potential jurors whom the prosecutor also excused. And, as the Attorney General notes, one African-American woman was seated as a juror, which also provides evidence that the prosecutor was not motivated by race in the exercise of peremptory challenges. (See, e.g., People v. Bernard (1994) 27 Cal.App.4th 458, 469, overturned on other grounds in People v. Box (2000) 23 Cal.4th 1153, 1188, fn. 7 [prosecutor exercised peremptory challenges against two African American jurors but two were seated on the jury].) The trial court did not err in denying defendant’s Batson/Wheeler motions.
Griffin error
Defendant contends that during her closing argument the prosecutor improperly commented on the fact that he did not testify, contrary to the rule enunciated in Griffin v. California (1965) 380 U.S. 609 (Griffin). “A prosecutor may not directly or indirectly comment on a defendant’s failure to testify in his or her own defense. [(Ibid.)] But the prosecutor may comment on the state of the evidence, including the failure of the defense to introduce material evidence or to call witnesses.” (People v. Mincey (1992) 2 Cal.4th 408, 446.) “We review the comment to determine whether there is a reasonable likelihood that the jury would be misled about the inference to be drawn from defendant’s silence.” (People v. Mayfield (1993) 5 Cal.4th 142, 178.)
As the prosecutor concluded her closing argument, she remarked that she had, “two questions for [defense counsel] before I have an opportunity to stand up and talk again. My first question is, how did his client’s right thumbprint get on the magazine on the inside of this gun? And why did his client lie to the police?” In his closing, defense counsel offered an explanation for the thumbprint, stating that defendant had taken the gun in self-defense and asking, “When my client took that gun, what was he supposed to do? I tell you. There is no evidence but there is physical evidence. He took the gun he looked to see if it was loaded.” In rebuttal, the prosecutor stated, “How does [defense counsel] explain Christopher Bautista’s right thumbprint on the magazine on the inside of the gun? . . . Something that’s not even in evidence.” She continued, “Without any evidence from the firearm expert or any other witness that was called he wants you to engage in speculation. He wants you to guess that this is what happened. Oh, switch a button then the magazine came out . . . There is no evidence that that happened in this case. There is no other explanation for Christopher Bautista’s right thumbprint to be on that gun other than that [it] is his gun. he went there with a loaded gun. He knew it. And he shot Casey Kirichenko with a it, a completely innocent victim.”
After the prosecutor finished her rebuttal, defendant objected that she had “committed Griffin error putting the defendant in a position where she understood he has chosen not to take the stand and posed a question which runs very close to the line. I submit to the court it goes over the line because not only did she pose the question but then she challenged me after I didn’t answer the question and then expanded upon it in terms of why it was my client did not respond to this issue.” The trial court found that the prosecutor’s “questions were very close to being Griffin error if not Griffin error,” but stated that it would cure any error through its instructions to the jury.
The jury was instructed in part as follows: “The prosecutor improperly asked the defendant to answer a couple of questions. You are instructed again that the defendant has the absolute right not to testify and you must not draw any inference from the fact that the defendant does not testify. Further, you must neither discuss this matter nor permit it to enter your deliberations[.] [I]n deciding whether or not to testify, the defendant may choose [to] . . . rely solely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. No lack of testimony on defendant’s part will make up for a failure of proof by the People so as to support any finding against him on any essential element.”
There was no Griffin error. The prosecutor’s original remark, asking the defense to explain the presence of the thumbprint on the inside of the gun was merely a comment on the state of the evidence, and legitimately challenged the credibility of the defense theory that defendant had taken the gun from one of the victims. To explain the presence of the thumbprint, defense counsel suggested that defendant had taken the cartridge out of the gun and replaced it. The prosecutor was entitled to point out to the jury that there was no such evidence. “The remarks, viewed in context, cannot be seen as other than a fair comment on the state of the evidence that falls outside the purview of Griffin (People v. Mincey[, supra,] 2 Cal.4th 408, 446.)” (People v. Mayfield, supra, 5 Cal.4th at p. 178.) Moreover, even if the prosecutor’s remarks were seen as a comment on defendant’s failure to testify, the trial court properly instructed the jury not to draw any conclusions and “[i]t is not reasonably probable that the jury was misled into drawing an improper inference regarding defendant’s silence.” (People v. Medina (1995) 11 Cal.4th 694, 756.)
The case relied on by defendant, United States v. Barton (10th Cir. 1984) 731 F.2d 669, is distinguishable in two respects. First, in Barton no curative instruction was given leading the court to conclude that the prosecutor’s comment was not harmless. (Id. at p. 675.) Moreover, in that case the court noted that because the presence of gun powder residue on defendant’s hand, on which the prosecutor commented, “concern matters that could have been explained only by the accused, the remarks give rise to an innuendo that the matters were not explained because Barton did not testify.” (Id. at p. 674.) Here, the shooting took place in a crowd and presumably many potential witnesses would have been available to testify that defendant removed and replaced the cartridge had he done so.
Sentencing
Finally, defendant argues that the trial court committed sentencing error. He contends that count three (assault with a firearm) was a lesser included offense of count two (assault with a semiautomatic firearm) and that count six (possession of a loaded firearm) was a lesser included offense of count five (possession of a loaded and concealed handgun). Therefore, defendant maintains that the trial court erred in failing to strike those counts.
“If a defendant cannot commit the greater offense without committing the lesser, conviction of the greater is also conviction of the lesser. To permit conviction of both the greater and the lesser offense ‘ “ ‘would be to convict twice of the lesser.’ ” ’ [Citation.] There is no reason to permit two convictions for the lesser offense.” (People v. Ortega (1998) 19 Cal.4th 686, 705, overruled on other grounds by People v. Reed (1998) 19 Cal.4th 686.)
The Attorney General correctly acknowledges that count three was a lesser included offense of count two. Section 245, subdivision (a)(2) makes it a crime for a person to “commit[] an assault upon the person of another with a firearm,” and section 245, subdivision (b) makes it a crime for a person to “commit[] an assault upon the person of another with a semiautomatic firearm . . . .” Therefore the conviction on count three must be stricken.
However, the Attorney General correctly argues that count six is not a lesser included offense of count five. Section 12025 (count 5) provides in relevant part: “(a) A person is guilty of carrying a concealed firearm when he or she does any of the following: [¶] . . . [¶] (2) Carries concealed upon his or her person any . . . firearm capable of being concealed upon the person.” The punishment for violation of this section is increased if it is proved that the firearm and unexpended ammunition were “in the immediate possession of the person or readily accessible to that person, or the . . . firearm . . . is loaded” and if the person is not the registered owner of the weapon. (§ 12025, subd. (b)(6)(A).) Section 12031 (count 6) provides in relevant part that “(a)(1) A person is guilty of carrying a loaded firearm when he . . . carries a loaded firearm on his . . . person . . . while in any public place or on any public street . . .” The punishment for this section is increased if it is proved that the person was not the registered owner of the firearm. (§ 12031, subd. (a)(2)(F).) Because these crimes contain different elements and defendant could have committed the greater offense, carrying a concealed firearm, without committing the lesser offense, carrying a loaded (but not necessarily concealed) firearm in a public place, the one is not a lesser included offense of the other. (See, e.g. People v. Ortega, supra, 19 Cal.4th at p. 693 [“A defendant properly may be convicted of two offenses if neither offense is necessarily included in the other”].)
Disposition
Defendant’s conviction under count three is stricken, and the abstract of judgment shall be modified accordingly. In all other respects, the judgment is affirmed.
We concur: Siggins, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.