Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. FCR211910
NEEDHAM, J.
A jury convicted appellant Gary Videl Dillahunty of assault with a semiautomatic firearm and dissuading a witness by force or threat, and found that he had personally used a firearm in the commission of each offense. (Pen. Code, §§ 245, subd. (b), 136.1, subd. (c)(1), 12022.5, subds. (a) & (d).) The trial court sustained allegations that appellant had served two prior prison terms within the meaning of section 667.5, subdivision (b), and sentenced him to prison for an aggregate term of 15 years.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Appellant contends: (1) the assault conviction must be reversed because it could have been based on two distinct acts and the jury was not given a unanimity instruction; (2) the court should have instructed the jury that merely pointing an unloaded firearm did not constitute an assault; (3) the jury instructions were deficient because they did not define a “semiautomatic” firearm; (4) the jury should have been instructed on assault with a firearm and brandishing a weapon as lesser included offenses of assault with a semiautomatic firearm; and (5) the court erroneously imposed a full consecutive sentence for dissuading a witness under section 1170.15. We affirm.
Appellant was acquitted on four unrelated robbery counts, the facts of which are omitted here. He was also acquitted of assault by means of force likely to cause great bodily injury and false imprisonment in connection with the incident at issue in this appeal.
Nicholle McCall dated appellant for a few months. In September 2002, she went to a club with a group of friends that included Amanda Simmons and Keina Johnson. After drinking for a few hours, the group returned to McCall’s apartment. Appellant, who had also come by the club, began arguing with McCall outside the apartment. He slammed her head into the windshield of a parked car and showed her a gun tucked into the waistband of his pants.
Appellant pulled McCall into the apartment and dragged her up the stairs by her hair, where he continued the attack in her bedroom. Appellant “stomped” on McCall with his feet and struck her on the side of her face with the gun. Her friends came to the door, but appellant said he would hurt her or kill her if anyone came inside.
Simmons tried to take McCall out of the bedroom, but appellant said he would hurt them both if McCall left. Simmons saw appellant point the gun at McCall’s head, but could not recall what he was saying at the time. Johnson saw appellant point a gun at McCall and hit her with a closed fist.
McCall stayed in the bedroom with appellant until the next morning. She did not immediately report the attack to the police because appellant had said that if she “told anybody” he would kill her. As a result of the attack, she had bruises on the left side of her face, swelling around her eyes, a swollen foot and a possible broken toe.
During their testimony at trial, McCall and Johnson identified a photograph of a gun as the type used by appellant during the attack. Detective Martin Kauffmann of the Fairfield Police Department testified that the gun in the photograph was a semiautomatic firearm.
DISCUSSION
Unanimity Instruction on Assault Count
Appellant argues that the court should have given a unanimity instruction such as CALJIC No. 17.01 because there were at least two acts that could have constituted the crime of assault with a semiautomatic firearm. We reject the claim.
The jury in a criminal case must unanimously agree that the defendant committed the act constituting the charged offense. (Cal. Const., art. I, § 16; People v. Wolfe (2003) 114 Cal.App.4th 177, 183-184.) This requirement is “ ‘intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ ” (Wolfe, supra, 114 Cal.App.4th at p. 187.) “[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
In this case, McCall testified that appellant struck her in the face with his gun after he dragged her upstairs to the bedroom. Simmons and Johnson testified that they saw appellant point the gun at McCall during the altercation in the bedroom. Appellant is correct that either of these distinct acts could have constituted assault with a semiautomatic firearm. (See People v. Miceli (2002) 104 Cal.App.4th 256, 271.)
Although the assault charged could have theoretically been based on two discrete acts, the prosecution elected during his closing argument to rely on appellant’s use of the gun to strike McCall in the face. He stated, “Count 6, assault with a semiautomatic weapon with gun use. . . . What do we know about this incident. We know that the violence continued. It didn’t stop when the defendant slammed Ms. McCall’s head in the car. The violence continued when it went into the house. You heard the testimony from Ms. McCall. At some point this defendant decides he’s going to grab her by the base of the neck, grab her by the back of the neck, basically drags her up the stairs into the bedroom. While they’re up in that bedroom area, at some point this defendant decides he’s going to use his gun, and he’s going to hit her in the head with the gun. ¶ . . . ¶ When Ms. McCall was hit in the head with this gun, this semiautomatic weapon, this defendant committed the crime of assault with a semiautomatic weapon.” (Italics added.) This election obviated the need for a unanimity instruction. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292; People v. Mayer (2003) 108 Cal.App.4th 403, 418; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1452-1453.)
Appellant claims that an election is only effective when it is made at the beginning of the trial, citing People v. Williams (1901) 133 Cal. 165. However, the rational for requiring an election at an early stage is “to give the defendant a meaningful opportunity to prepare a defense to specific events.” (People v. Diaz (1987) 195 Cal.App.3d 1375, 1382.) No other witnesses were present when appellant, according to McCall, struck her with his gun, and appellant’s only defense to such a claim was to show that she lacked credibility as a witness. To this end, defense counsel established during cross-examination that McCall did not recall telling police she had been hit with the gun, and that she had consumed a significant amount of alcohol on the night of the attack. The defense had a meaningful opportunity to impeach McCall and no purpose would have been served by requiring the prosecution to make its election before the trial began. (Id. at p. 1383.)
Instruction on Necessity of Loaded Gun
Appellant contends the jury should have been instructed that an assault with a semiautomatic firearm cannot be committed by pointing an unloaded gun. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3.) He claims this instruction was necessary because the jury could have based the assault conviction on his pointing of the gun at McCall, rather than on his use of the gun to hit her. We disagree, because as previously discussed, the prosecution elected to proceed on the theory that the assault was committed when appellant used his gun as a bludgeon, not when he pointed it at McCall during their argument.
Definition of “Semiautomatic” Firearm
The jury was instructed with CALJIC No. 9.02.1: “Every person who commits an assault upon the person of another with a semiautomatic firearm is guilty of a violation of Penal Code section 245, subdivision [] (b), a crime. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person was assaulted; and [¶] 2. The assault was committed with a semiautomatic firearm.” CALJIC No. 9.00 described the elements of assault, but nowhere was the term “semiautomatic firearm” defined. Appellant claims that this omission was a prejudicial failure to instruct on an element of the offense. We conclude that any error was harmless.
The jury must be instructed on the elements of an offense, and further explanatory instructions must be given “where a term used in an instruction has a specific or technical meaning peculiar to the law. . . .” (People v. Ryan (1999) 76 Cal.App.4th 1304, 1318-1319.) Courts should clarify a term if it is one not commonly understood by those familiar with the English language. (See People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023.)
Section 245, subdivision (b), does not define “semiautomatic firearm.” Our Supreme Court has described that term to mean one that “fires once for each pull on the trigger and reloads automatically, but requires the shooter to release the trigger lever before another shot can be fired.” (In re Jorge M. (2000) 23 Cal.4th 866, 874-875, fn. 4, quoting Walter, Rifles of the World (2d ed. 1998) p. 498.) This is consistent with a typical dictionary definition of “semiautomatic”: “of a firearm: that employs gas pressure or force of recoil and mechanical spring action in ejecting the empty cartridge case after the first shot and in loading the next cartridge from the magazine but that requires release and another pressure of the trigger for firing each successive shot.” (Webster’s 3d New Internat. Dict. (2002) p. 2063.)
Though “semiautomatic firearm” does not appear to have a unique legal meaning that differs from its use in other contexts, we doubt it is a term so commonly understood by those familiar with the English language that it requires no definition or explanation. (See People v. Griffin, supra, 33 Cal.4th at p. 1023.) But assuming without deciding that it should ordinarily be defined for jurors, the failure to do so in this case was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
McCall and Johnson identified a photograph of a gun that appeared to be the one that was used by appellant during the attack. Officer Kaufman testified that the gun in the photograph was a semiautomatic weapon, explaining that such a weapon typically had “a magazine in which the ammunition is stored and the magazine can be removed from the firearm or placed into the firearm and . . . the chamber can be charged with ammunition.” No evidence to the contrary was presented by either side. The omission of an instruction defining “semiautomatic” did not contribute to the verdict when that issue was essentially undisputed.
Failure to Instruct on Lesser Offenses
The court instructed the jury that assault with a deadly weapon other than a firearm under section 245, subdivision (a)(1), was a lesser included offense of assault with a semiautomatic firearm, as was the misdemeanor of simple assault under section 240. Appellant argues that the instructions should have additionally identified assault with a firearm under section 245, subdivision (a)(2), as a lesser included offense, because the nature of the weapon utilized was in dispute and a jury unconvinced that it was semiautomatic might nonetheless have convicted appellant of assault with a firearm. Reversal is not required.
The trial court must instruct on a lesser included offense if substantial evidence has been presented indicating that the defendant is guilty only of that lesser offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) “Substantial evidence” in this context is evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed. (Ibid.) The failure to instruct on a lesser included offense in a noncapital case is subject to reversal only when the defendant demonstrates that it is reasonably probable the error affected the outcome of the trial. (People v. Breverman (1998) 19 Cal.4th 142, 165.)
The primary issue on the assault count was whether it was committed with the firearm as described by McCall or whether appellant had only used his hands. The jury necessarily concluded that a firearm was used when it convicted him of the charged crime of assault with a semiautomatic firearm rather than the lesser offenses of simple assault or assault with a deadly weapon other than a firearm. The only testimony about the firearm indicated that it was a semiautomatic weapon. It is not reasonably probable the jury would have reached a different result if it had been given the opportunity to convict appellant of assault with a firearm under section 245, subdivision (a)(2).
Appellant also argues that the court should have instructed the jury on brandishing a firearm as a lesser included offense of assault with a semiautomatic firearm. We disagree, because brandishing is not a lesser included offense of assault.
“[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117.) The determination that a crime is a lesser included offense is made in the abstract; “[t]he evidence actually introduced at trial is irrelevant to the determination of the status of an offense as lesser included.” (People v. Wright (1996) 52 Cal.App.4th 203, 208; see also People v. Escarcega (1974) 43 Cal.App.3d 391, 396.)
The offense of brandishing a firearm is committed when, in the presence of another person, the defendant “draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner.” (Pen. Code, § 417, subd.(a)(2).) “Even though most assaults with a firearm undoubtedly include conduct fitting into the definition of brandishing, it has long been held that brandishing is a lesser related offense, rather than lesser included. [Citations.] The reason of course, is that it is theoretically possible to assault someone with a firearm without exhibiting the firearm in a rude, angry or threatening manner . . . .” (People v. Steele (2000) 83 Cal.App.4th 212, 218.)
Appellant argues that we should follow People v. Wilson (1967) 66 Cal.2d 749, 764 (Wilson), in which the Supreme Court reversed a conviction of assault with a deadly weapon based on the court’s failure to give instructions on brandishing. In People v. Escarcega, supra, 43 Cal.App.3d at pp. 399-400, the court rejected the contention that Wilson stood for the proposition that brandishing was a lesser included offense of assault with a deadly weapon. Escarcega pointed out that Wilson did not discuss or consider the basic rationales underlying lesser included offenses, nor did Wilson hold that the elements of section 417 were necessarily included in section 245. “Demonstrably, according to long-established principles, section 417 is not such a necessarily included offense. And it is significant that the court showed no purpose to overrule or modify those principles. Further, if the purpose was to hold the forbidden conduct of section 417 to be necessarily included in an assault with a deadly weapon charge, we may reasonably conclude that the court would have contemporaneously disapproved the many contrary Court of Appeal decisions which were then extant.” (Escarcega, at p. 399.) On the other hand, since Wilson, the Supreme Court itself had consistently affirmed the principle that a lesser included offense is one that is necessarily committed if the charged crime is committed. (Id. at pp. 399-400.)
In People v. Steele, supra, 83 Cal.App.4th 212, the court conducted a close analysis of the Wilson decision, similar to the discussion in Escarcega, to demonstrate why the language in Wilson did not constitute binding precedent to be followed by appellate courts: Wilson did not directly state that the elements of brandishing were necessarily included within the elements of assault with a deadly weapon; the court did not discuss the rationale of lesser included offenses; the court did not expressly overrule prior precedent holding brandishing was not a lesser included offense; the Supreme Court had consistently reaffirmed the principles underlying lesser included offenses; and Wilson is not supported by any subsequent cases. (Steele, supra, at p. 220.) We agree with the analyses in Escarcega and Steele and similarly conclude that brandishing is not a lesser included offense of assault with a firearm.
Unanimity Instruction on Dissuading Count
Appellant argues that the trial court should have instructed the jury that it had to unanimously agree on the act constituting the crime of dissuading a witness under section 136.1. He argues that reversal is required because the jury could have convicted him based on either McCall’s testimony that appellant told her he would kill her if she “told anybody, ” or on her friends’ testimony that appellant said he would harm McCall if she left the bedroom. We disagree.
A unanimity instruction need not be given when the acts are “so closely connected that they form part of one and the same transaction” or when “the statute contemplates a continuous course of conduct of a series of acts over a period of time.” (People v. Thompson (1984) 160 Cal.App.3d 220, 224.) Section 136.1 falls within this continuous conduct exception. The language of that statute “focuses on an unlawful goal or effect, the prevention of testimony, rather than on any particular action taken to produce that end. ‘Prevent’ and ‘dissuade’ denote conduct which can occur over a period of time as well as instantaneously. The gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal.” (People v. Salvato (1991) 234 Cal.App.3d 872, 883.) No unanimity instruction was required.
Cunningham Challenge to Full Term Sentence Under Section 1170.15
The trial court sentenced appellant to the six-year middle term on the assault count and imposed a consecutive three-year middle term on the dissuading count. Although the sentences on subordinate counts are usually limited to one-third the middle term under section 1170.1, subdivision (a), section 1170.15 creates an exception to this rule: “Notwithstanding subdivision (a) of section 1170.1 which provides for the imposition of a subordinate term for a consecutive offense of one-third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 . . . that was committed against the victim of . . . the first felony . . . the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed. . . .” Appellant argues that a full term sentence under section 1170.15 was unauthorized under Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] (Cunningham), which required jury findings on all the facts necessary to support its imposition.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the United States Supreme Court articulated the rule that the right to a jury trial under the Sixth and Fourteenth Amendments precludes a trial court from imposing a sentence greater than the statutory maximum based on a fact, other than a prior conviction, that was neither admitted by the defendant nor submitted to a jury and found true beyond a reasonable doubt. In Cunningham, supra, __ U.S. __ [127 S.Ct. 856], the court applied this rule to California’s three-tier determinate sentencing scheme, and concluded that the middle term was the relevant “statutory maximum” under Apprendi and Blakely because section 1170, subdivision (b), establishes a presumption in favor of that term. (Id. at p. 873.) Cunningham concluded the sentencing scheme was unconstitutional to the extent that it permitted an upper term sentence to be imposed on the basis of non-recidivist aggravating factors that were found true by the trial court at sentencing, but were neither submitted to the jury, necessarily encompassed within the verdict, nor admitted by the defendant. (Cunningham, supra, 127 S.Ct. at pp. 868, 870-873.)
Cunningham and its predecessors do not render unconstitutional the full strength middle term sentence under section 1170.15. The upper term was not imposed. Though the middle term was full strength, rather than reduced by two-thirds under section 1170.1, subdivision (a), this higher sentence was based on facts that were found true by the jury beyond a reasonable doubt. It was appellant’s conviction of a felony in addition to a violation of section 136.1 against the same victim that gave rise to the full term sentence. The jury’s guilty verdict on the assault and dissuading counts, which were alleged to have been committed against the same victim, necessarily determined the facts triggering the sentencing provisions of section 1170.15. (See People v. Navarro (2004) 124 Cal.App.4th 1175, 1182.)
Nor was Cunningham implicated by the imposition of a consecutive rather than a concurrent sentence on the dissuading count. The rule of Cunningham does not implicate consecutive sentences under the determinate sentencing law. (People v. Black (2007) __ Cal.4th ___ [2007 WL 2050875, *12-13].)
Section 654Appellant argues that the court should have stayed the sentence on the dissuading count under section 654, which prohibits dual punishment for the same act or for acts that are part of a single, indivisible course of conduct. (People v. Latimer (1992) 5 Cal.4th 1203, 1208.) We are not persuaded.
“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) When a defendant harbors multiple, independent criminal objectives, he may be punished for each statutory violation even though they “ ‘shared common acts or were parts to an otherwise indivisible course of conduct.’ ” (People v. Harrison (1989) 48 Cal.3d 321, 335.) Dual punishment may be imposed when the defendant harbors “consecutive, and therefore separate, intents, ” or “different, if simultaneous, intents.” (People v. Latimer, supra, 5 Cal.4th at p. 1216.) We review a court’s determination of separate intents under section 654 for substantial evidence, considering the evidence in the light most favorable to the judgment and presuming the existence of every fact the court could reasonably deduce from the evidence. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.)
Section 654 potentially reduces the defendant's aggregate sentence when it applies rather than increasing the statutory maximum term when it does not and there is no presumption in favor of a stayed sentence under its provisions. We reject appellant’s argument, raised in his reply brief, that Cunningham and Blakely require a section 654 determination to be made by the jury. (See People v. Cleveland (2001) 87 Cal.App.4th 263, 270.)
The evidence here showed that appellant assaulted McCall by striking her with a firearm and then attempted to dissuade her from reporting his conduct when he threatened her with physical harm or death if she left. Though these separate acts were close in time and space, they were distinct from one another and motivated by separate intents. The court did not err when it declined to stay the sentence on the dissuading count under section 654. (See People v. Nichols (1994) 29 Cal.App.4th 1651, 1656-1658 [violation of § 136.1 distinct from kidnapping for purposes of § 654, though dissuasion was ongoing and overlapped with kidnapping].)
Credits
Appellant contends that he was in presentence custody for 615 days rather than the 583 days calculated by the court, and that he is entitled to 92, rather than 87, days of conduct credit under section 2933.1. The People agree that appellant is entitled to additional credits, although they calculate his actual time served as 614 rather than 615 days. We agree with appellant’s calculation and will order the abstract modified accordingly.
DISPOSITION
The superior court shall modify the abstract of judgment to reflect 615 days of presentence credits for actual time in custody and 92 days of conduct credits. The judgment is otherwise affirmed.
We concur. JONES, P. J., SIMONS, J.