Opinion
F068285
04-30-2015
THE PEOPLE, Plaintiff and Respondent, v. JAMES LEONARD ESTES, Defendant and Appellant.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MF010180A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted James Leonard Estes of attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a)), possession of firearm by a felon (§ 29800, subd. (a)(1)), and possession of ammunition by a felon (§ 30305, subd. (a)). Numerous enhancements were found true, resulting in a total sentence of 36 years.
All statutory references are to the Penal Code unless otherwise stated.
Estes argues (1) the trial court erroneously refused his request that the jury be instructed that negligent discharge of a firearm was a lesser related offense to count 1, (2) the prosecutor committed misconduct during closing argument by misstating the burden of proof, and (3) the trial court erroneously concluded that personal use of a firearm within the meaning of section 12022.5 was a lesser included enhancement to personal discharge of a firearm resulting in great bodily injury within the meaning of section 12022.53, subdivision (d). We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The Evidence
Estes shot the victim, Bradley Hayden, in Tehachapi. The shooting was the culmination of a contentious relationship between Estes and Hayden. Hayden was a difficult individual with whom to deal, with strong and unusual beliefs about religion. Hayden's daughter, Amanda, developed a relationship with the considerably older Estes. Estes and Amanda both described their relationship as a friendship and denied any romantic involvement. The relationship began when Estes began mentoring Amanda in conventional religious doctrine. Hayden believed Estes was having a romantic relationship with Amanda, although no basis for this belief appears in the record. With these relationships in mind, we begin our summary of the evidence.
Estes was teaching Amanda about Christianity and helping her understand the Bible. Her father, who abused alcohol and drugs at least some of the time, did not like Estes and did not approve of Amanda spending time with Estes.
Amanda was with Estes on the night of the shooting. They had gone for a walk in an area near Estes's house. While they were walking, Estes remarked that someone was nearby. Amanda did not hear anything at the time, but eventually heard her father yell strange things at Estes. Estes went into his house. When he came back out, Estes fired several gunshots toward where Amanda had heard her father's voice. Amanda and Estes then went inside Estes's house.
After approximately 10 minutes, Estes left his house and drove off in his vehicle. He returned a short while later and told Amanda he had shot her father.
Hayden testified that he was walking on a bike path on the night in question when he saw Estes in a nearby field. Estes was with someone, but Hayden could not tell who it was. Hayden decided he wanted to speak with Estes. Hayden began to speak and Estes told Amanda they should head back to the house. Hayden yelled out to Estes, "Jimmy, what are you doing to my family?" Estes went towards his house and then fired his gun a few times. The gun looked like it was pointed at Hayden. Hayden yelled at Estes, "[Y]ou are going to end up putting one of those in your head." Estes was about 50 yards away at the time of the shooting.
Hayden kept walking north on the bike path until he reached Cherry Lane, and then he headed east on that street. Hayden saw Estes approach in his gray pickup. When Estes pulled up alongside of Hayden, Hayden said, "Prove to me you are not into some kind of diabolics." Estes, who was about 10 feet away from Hayden, did not say anything and then fired his gun at Hayden through the passenger window. Hayden was not hit, so he kept walking. Estes drove up ahead on Cherry Lane and then stopped. When Hayden caught up with the parked pickup, Estes fired two more shots at him. Estes then drove forward a short distance; Hayden crossed the street so he would be on the driver's side of the vehicle. Estes again pulled his pickup close to Hayden and fired three more rounds. One of the bullets struck Hayden in the area of his ribcage. Estes then drove away from the scene. A passerby drove Hayden to the hospital, where he underwent surgery and spent a week recovering from his injuries.
It appears from the record that Hayden believed diabolics involved Satan worship and other unusual religious beliefs. Hayden's testimony regarding this is difficult to understand.
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Denise Brown, a detective with the Tehachapi Police Department, interviewed Estes on the night of the shooting. Estes advised her where the pistol was located. Tehachapi Police Officer Matthew Goe recovered a .22-caliber pistol from the yard where Estes stated he had placed it.
Estes also explained to Brown the events of that evening. Estes said he was with Amanda that evening and at approximately 10:00 p.m. the two decided to take a walk on one of the trails near his property. While on the trail they came in contact with Hayden. Hayden was yelling at Estes and Amanda, saying something about taking Estes's soul. Estes testified that Hayden fired two rounds at him. Estes and Amanda walked back to Estes's residence. Estes retrieved his pistol, got into his vehicle, and drove to the main road to find Hayden. Estes said he went looking for Hayden because he (Estes) was very angry. When Estes located Hayden, Hayden lunged at the passenger side of his vehicle on at least two occasions and was yelling at Estes. Estes turned into a housing development and then made a U-turn to exit the development since there was only one entrance/exit road to the development. As he was exiting the development, Hayden jumped in front of Estes's vehicle and put his hands on the hood of the vehicle. Estes shot through the passenger side window of the vehicle. Hayden walked away. Estes hid his pistol and returned to his residence.
Estes testified in his defense. He testified he did not have any type of romantic relationship with Amanda but he was her mentor and friend. He did have contact with Hayden, but found him difficult. Hayden had threatened him on at least six occasions before the shooting. The threats were claims by Hayden that he had the power to take Estes's life.
On the night in question, Amanda stopped at Estes's residence to use his computer. The two went out for dinner, returned to the residence, and then went for a walk. Estes sensed someone else in the area, so he and Amanda headed back to Estes's residence. Before they arrived at the residence, Estes heard Hayden say, "What are you doing to my family?" As Estes and Amanda continued to the residence, Estes heard two gunshots. When they reached the residence, Estes retrieved his pistol and fired two shots in an attempt to scare Hayden away from the residence. Hayden was still yelling, so Estes got into his truck and drove to find Hayden.
Estes testified, "This has been going on for 13 months, and just like [Hayden] said today, we had to do something to settle it. And at the time I was at the point to where I couldn't take it anymore." Estes testified he was in fear for his life.
Estes encountered Hayden after a short drive. Hayden approached the driver's side window. Estes saw something silver in Hayden's hands. Hayden stated, "I am in your dreams." Estes began driving off, but Hayden got in front of the pickup and held his hands as if he was pointing a gun at Estes. Hayden moved to the passenger side of the pickup. Hayden reached inside the vehicle and tried to unlock the door. That is when Estes shot Hayden. Estes said he was in fear for his life and the lives of the other people at his residence.
Estes began driving away, but he pulled into the housing development that had only one entrance/exit. After he turned around to exit the housing development, Hayden again jumped in front of Estes's pickup. Estes fired another shot in an attempt to scare Hayden. Hayden finally ran away. Estes then drove in the opposite direction, hid the pistol before he went home, made sure Amanda got home safely, and then returned to his residence and waited for the police to arrive.
The Information
Estes was charged with attempted murder (§§ 664, 187, subd. (a) (count 1), assault with a firearm (§ 245, subd. (a)(2)) (count 2), possession of a firearm after having been previously convicted of a felony (§ 29800, subd. (a)(1)) (count 3), and possession of ammunition after previously having been convicted of a felony (§ 30305, subd. (a)) (count 4). In addition, the following enhancements were alleged: (1) personal discharge of a firearm causing great bodily injury within the meaning of section 12022.53, subdivision (d) (count 1); (2) three prior convictions that constituted a strike within the meaning of section 667, subdivisions (c) through (j) (counts 1 through 4); (3) three prior serious felony convictions within the meaning of section 667, subdivision (a) (counts 1 and 2); (4) infliction of great bodily injury within the meaning of section 12022.7 (count 2); and (5) personal use of a firearm within the meaning of section 12022.5, subdivision (a) (count 2).
Verdict and Sentencing
The jury found Estes not guilty of attempted murder, but guilty of the lesser included offense of attempted voluntary manslaughter (count 1), guilty of possession of a firearm after having been convicted of a felony (count 3), and guilty of possession of ammunition after having been convicted of a felony (count 4). The jury also found true the allegation in count 1 that Estes personally discharged a firearm within the meaning of section 12022.5, subdivision (a). The jury could not reach a verdict on the assault with a firearm charge (count 2). In a bifurcated trial, the trial court found true the prior conviction allegations.
The trial court struck two of the prior convictions that constituted strikes pursuant to the provisions of section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court then sentenced Estes to the upper term of 11 years on count 1, enhanced by 10 years pursuant to section 12022.5, subdivision (a), and enhanced by an additional 15 years pursuant to section 667, subdivision (a) because of the three prior serious felonies Estes had served. The sentences on counts 3 and 4 were stayed pursuant to section 654. The People dismissed the assault count.
DISCUSSION
I. Instructional Error
Estes argued during the jury instruction conference that the jury should be instructed that negligent discharge of a firearm is a lesser related offense to the assault with a firearm charged in count 2. The jury did not reach a verdict on this count, so any instructional error would be irrelevant.
Estes now argues defense counsel requested the negligent discharge of a firearm on both the assault with a firearm count and the attempted murder count. The only support he can find in the record for this argument is the following paragraph in his motion for a new trial:
"Defense request for a negligent discharge of gun as a lesser should have been given to counts 1-2. Facts supported this, in that defendant testified that his shots were 'warning' type shots in self defense. This flows naturally from the given instructions on perfect and imperfect self defense."
The trial court denied the motion for new trial without comment.
Our review of the record convinces us that defense counsel's request for a negligent discharge instruction was limited to count 2. Since the jury did not reach a verdict on count 2, any possible error was harmless.
Even if we were to accept Estes's argument that the instruction was requested on the attempted murder count, there was no error. Estes concedes the negligent discharge count is not a lesser included offense to attempted murder or attempted voluntary manslaughter, but asserts it is a lesser related offense. Estes also concedes that the Courts of Appeal of this state have held that an instruction on a lesser related offense can be given only if both parties agree. (See People v. Valentine (2006) 143 Cal.App.4th 1383, 1387.) Since the prosecutor objected to the negligent discharge instruction, under this rule the trial court properly denied defense counsel's request.
Nonetheless, Estes asserts the Supreme Court has not adopted the rule found in the cases from the Courts of Appeal and asks us to reconsider this rule. Estes acknowledges the Supreme Court's opinion in People v. Birks (1998) 19 Cal.4th 108 (Birks), but claims the opinion does not expressly adopt the rule cited in Valentine.
We begin with Birks. The Birks court overruled People v. Geiger (1984) 35 Cal.3d 510, which held a defendant has a state constitutional right to instructions on lesser related offenses if he requests those instructions. In Birks, the Supreme Court stated its holding as follows: "[W]e conclude, Geiger was wrong to hold that a criminal defendant has a unilateral entitlement to instructions on lesser offenses which are not necessarily included in the charge. Geiger is therefore overruled." (Birks, supra, 19 Cal.4th at p. 136.) In footnote 19, which immediately follows this holding, the Supreme Court noted, "[O]ur decision does not foreclose the parties from agreeing that the defendant may be convicted of a lesser offense not necessarily included in the original charge. When the parties consent to such a procedure, with or without formal amendment of the pleadings, neither can claim unfairness, and the prosecution's role in determining the charges is not improperly compromised." (Id. at p. 136, fn. 19.)
The Birks holding establishes that Estes did not have an entitlement to the negligent discharge instruction. Estes, however, asserts the trial court had discretion to instruct the jury on lesser related offenses and erred because it believed such discretion did not exist.
We think the discretion Estes attempts to provide to the trial court would undermine one of the grounds on which the Birks decision rests. The Supreme Court noted the Geiger rule infringed on the prosecution's broad discretion to decide which crimes will be brought against a defendant and raised serious questions about whether the Geiger rule could be reconciled with the separation of powers clause of the state Constitution. (Birks, supra, 19 Cal.4th at pp. 129, 134.)
We need not rest our conclusion on our analysis of Birks. The Supreme Court has made it clear that the rule adopted by the Courts of Appeal is the correct rule in California. In People v. Taylor (2010) 48 Cal.4th 574, the defendant requested, and the trial court refused, an instruction on trespass as a lesser related offense to the charged crime of burglary. The Supreme Court found no error: "In Birks, we held that instruction on a lesser related offense is proper only upon the mutual assent of the parties. [Citations.] Here, because the prosecutor objected to instruction on the crime of trespass, the trial court correctly denied defendant's request." (Id. at p. 622.) The Supreme Court went on to deny Taylor's request for the court to reconsider Birks. Estes finds himself in the identical situation as the defendant in Taylor.
For each of these reasons, we conclude that the trial court did not err in denying Estes's request for an instruction on the lesser related offense of negligent discharge of a firearm to the attempted murder count.
II. Prosecutorial Misconduct
Estes contends the prosecutor committed misconduct when she misstated the burden of proof during closing argument. The passage in which the alleged misconduct occurred is relatively brief, so we will quote it in full.
"[PROSECUTOR:] You've been told reasonable doubt is not a mere possible doubt, it's open to some possible doubt or imaginary doubt. There can be some possible doubt, and you can still believe that these charges are true. If you do not believe in the charge, then the defendant is not guilty.
"[DEFENSE COUNSEL]: Objection. That misstates the law.
"THE COURT: Well, sustained as phrased.
"[PROSECUTOR]: If you do not believe that the defendant has been proven guilty beyond a reasonable doubt and that those charges are true, then he is not guilty, but if you do believe that I have met my burden and proved that the defendant is guilty beyond a reasonable doubt, you believe in the truth of the charge, then the defendant is guilty.
"[DEFENSE COUNSEL]: Objection. That misstates the law.
"THE COURT: Overruled.
"[PROSECUTOR]: As I said before, there can be some possible doubt, and you can still believe that I've met my burden and that he is guilty. [¶] Reasonable doubt, ladies and gentlemen, isn't designed to let guilty people go free. There's convictions in the [U.S.] every day. If the facts that have been presented to you, the evidence that you have seen show that the defendant committed those crimes, he is guilty.
"[DEFENSE COUNSEL]: Objection. That misstates the law.
"THE COURT: Sustained as phrased.
"[PROSECUTOR]: If I show beyond a reasonable doubt that he is guilty -- and he is, ladies and gentlemen, beyond a reasonable doubt. He attempted to kill Mr. Hayden. He assaulted him with that firearm a number of times. He caused him great bodily injury. And he was prohibited by law from owning that firearm because he is a convicted felon. And he was prohibited by law to have the bullets, one of which that's still in Mr. Hayden, because he is a convicted felon. [¶] Ladies and gentlemen, I ask you to use your common sense and logic in this case when looking at all the evidence."
The above colloquy is the conclusion of the prosecutor's closing argument. A break was taken at that point, and defense counsel moved for a mistrial based on the alleged incorrect statement of the burden of proof. Defense counsel also argued that one of the PowerPoint slides used during closing argument contained a background that included the scales of justice, and the scales of justice suggested, according to defense counsel, that the burden of proof was a preponderance of the evidence and not proof beyond a reasonable doubt.
The trial court sustained defense counsel's objections, stating it appeared to the court that the prosecutor "incompletely" stated the law. The trial court, however, felt the prosecutor corrected her omission and denied the motion for mistrial.
"The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "'unfairness as to make the resulting conviction a denial of due process.'" [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.' [Citation.] 'In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, '"the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."'" (People v. Williams (2013) 56 Cal.4th 630, 671.) If misconduct has occurred under state law, the defendant must establish it is reasonably probable he or she would have obtained a more favorable result absent the misconduct. (People v. Welch (1999) 20 Cal.4th 701, 753.)
Estes argues the prosecutor committed misconduct because, in the above quoted portion of her argument, she informed the jury it could convict Estes if it believed the charges were true.
We agree the prosecutor could have chosen her words more carefully. Indeed, it would behoove prosecutors to tread carefully with the burden of proof when arguing to the jury to avoid creating a possible reversible error in the trial. A careful prosecutor would limit any argument on reasonable doubt to the language of the instruction based on section 1096.
Nonetheless, we reject Estes's argument for several reasons. First, he did not request the trial court admonish the jury, and it plainly appears to us that a timely admonition on the correct burden of proof would have cured any possible harm. Therefore, the objection to any possible misconduct has been forfeited.
Second, the prosecutor's statements did not constitute misconduct under federal law because the comments did not infect the trial with such unfairness as to make the resulting conviction a denial of due process.
Third, to the extent the comments could be construed as misconduct under state law, it is not reasonably probable Estes would have obtained a more favorable result had the prosecutor relied only on the statutory definition of reasonable doubt. We reach this conclusion because after the trial court sustained Estes's objections, the prosecutor immediately rephrased her argument to reflect the correct burden of proof. In addition, the jury properly was instructed on the burden of proof by the trial court. Defense counsel also explained in his closing argument that the prosecutor's burden of proof was proof beyond a reasonable doubt and explained his understanding of the concept. Finally, in her rebuttal argument the prosecutor reiterated that her task was to prove Estes guilty beyond a reasonable doubt.
It is inconceivable to us that the minor misstatement made by the prosecutor had any effect on the outcome of this trial. Accordingly, we find no grounds for reversal of the judgment based on prosecutorial misconduct. III. Section 12022.5 , Subdivision (a) Enhancement
Estes argues the trial court improperly imposed the section 12022.5, subdivision (a) enhancement in this case. The issue arose as follows. Estes was charged with attempted murder in count 1. The information also alleged he personally used a firearm resulting in great bodily injury when he shot Hayden, within the meaning of section 12022.53, subdivision (d). The information did not charge Estes with attempted voluntary manslaughter. However, all parties agreed in the jury instruction conference that attempted voluntary manslaughter was a lesser included offense to attempted murder, and the jury was so instructed.
The issue, however, is that section 12022.53 can be used to enhance only those crimes listed in subdivision (a) of that section. While attempted murder is listed in subdivision (a), attempted voluntary manslaughter is not. Accordingly, the section 12022.53 firearm enhancement could not be found true if the jury concluded Estes was guilty only of attempted voluntary manslaughter.
The trial court and the prosecutor realized the inapplicability of section 12022.53 to the attempted voluntary manslaughter charge. Hence, the trial court instructed the jury that if it found Estes guilty of attempted voluntary manslaughter, then it could consider the personal use of a firearm enhancement found in section 12022.5. Estes argues that since the information did not charge the section 12022.5 enhancement, he was deprived of adequate notice of the charges against him.
The thrust of Estes's argument is that section 12022.5 is not a lesser included enhancement to section 12022.53, subdivision (d). Estes asserts that because "a firearm may be used without discharging it, 'use' is not a lesser included offense of 'discharge.'" Accordingly, a "true finding on 'use,' where only 'discharge' has been charged, is a violation of the constitutional right to notice."
Both parties cite People v. Dixon (2007) 153 Cal.App.4th 985 (Dixon). We agree Dixon is dispositive. We begin, however, with the well-established rule of greater and lesser offenses, or, in this case, enhancements. "Like most jurisdictions, California recognizes that an offense expressly alleged in an accusatory pleading may necessarily include one or more lesser offenses. The definition of a lesser necessarily included offense is technical and relatively clear. Under California law, 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." (Birks, supra, 19 Cal.4th at p. 117.)
In Dixon, the defendant was charged with personal use of a firearm pursuant to the provisions of section 12022.53, subdivision (b). The trial court concluded the prosecution had failed to prove the gun Dixon used was a firearm because the evidence was such that the weapon could have been a pellet gun. The trial court, however, found the prosecution proved Dixon had used a deadly weapon, thus subjecting Dixon to the lesser included enhancement of section 12022, subdivision (b), personal use of a deadly weapon.
There was no dispute that a pellet gun was not a firearm for the purposes of the enhancement statute, but was a dangerous weapon as that term was used in section 12022. Instead, Dixon argued he was provided inadequate notice of the section 12022 weapons enhancement. This court began by noting the due process clause mandates that every criminal defendant be given fair notice of the charges against him so that he or she may prepare a defense and avoid unfair surprise. (Dixon, supra, 153 Cal.App.4th at p. 1001.) An accusatory pleading, however, provides the defendant with notice not only of the charged offense, but also of any necessarily included offenses. (Ibid.) The issue was whether personal use of a deadly weapon was a lesser included enhancement to personal use of a firearm. We concluded it was.
"Dixon was charged with personal use of a firearm within the meaning of section 12022.53, subdivision (b). One cannot commit an offense by personally using a firearm and not at the same time commit an offense by personally using a deadly weapon. This is due to the fact that a deadly weapon is any instrument that is capable of being used to inflict death or great bodily injury and a firearm is unquestionably a deadly weapon. [Citations.] 'It is of no consequence that the evidence at trial might also establish guilt of another and lesser crime than that charged. To constitute a lesser and necessarily included offense it must be of such a nature that as a matter of law and considered in the abstract the greater crime cannot be committed without necessarily committing the other offense. [Citations.]' [Citation.] Since section 12022, subdivision (b), is included within section 12022.53, subdivision (b), Dixon was adequately apprised that the prosecution was seeking to prove the elements which comprise a section 12022, subdivision (b), enhancement. Consequently, there was no lack of notice or due process violation." (Dixon, supra, 153 Cal.App.4th at p. 1002.)
The question we face, therefore, is whether the lesser enhancement (§ 12022.5, subd. (a), with a maximum sentence of 10 years), is necessarily included in the greater enhancement (§ 12022.53, subd. (d), with a maximum sentence of 25 years).
To prove the section 12022.53, subdivision (d) enhancement, the prosecution was required to prove (1) Estes personally discharged a firearm during the commission of the crime, (2) Estes intended to discharge the firearm, and (3) Estes's act caused great bodily injury to Hayden. (CALCRIM No. 3149.)
To prove the section 12022.5, subdivision (a) enhancement, the prosecution was required to prove Estes personally used a firearm during the commission of the crime by (1) displaying the firearm in a menacing manner, or (2) hitting someone with the firearm, or (3) firing the firearm. (CALCRIM No. 3146.)
It is clear that the section 12022.5 enhancement is a lesser included enhancement to the section 12022.53, subdivision (d) enhancement because a defendant who violates the provisions of section 12022.53, subdivision (d) must also violate the provisions of section 12022.5, subdivision (a). The first element of the section 12022.53 enhancement required Estes to personally discharge a firearm. Personal discharge of a firearm meets all of the elements of the section 12022.5, subdivision (a) enhancement, which is violated if a defendant uses a firearm while committing a felony. One way to use a firearm is by discharging the firearm. Therefore, once the People prove the first element of the section 12022.53, subdivision (d) enhancement, they also have proven every element of the section 12022.5, subdivision (a) enhancement.
Estes's argument quoted above contains a fundamental flaw. It is true that a firearm can be used while committing a crime within the meaning of section 12022.5 without discharging the firearm. But this is not the rule we apply. We must determine if it is possible to commit the greater offense without committing the lesser offense, i.e., is it possible to violate section 12022.53 without violating section 12022.5? As explained in the preceding paragraph, the answer to this question is no.
The case on which Estes relies, People v. Shockley (2013) 58 Cal.4th 400, provides no support for his argument. Shockley addressed the issue of whether battery (§ 242) was a lesser included offense of lewd and lascivious conduct with a child under 14 years of age (§ 288, subd. (a)). The Supreme Court answered the question in the negative. Estes relies on a single sentence from the court's opinion. This sentence states, "[W]e merely conclude that when the elements of two offenses are essentially identical, as when guilt of battery would be predicated on being guilty of lewd conduct, neither is a lesser and included offense of the other." (Shockley, at p. 406.) This sentence does not support Estes's position because the two enhancements here, personal discharge of a firearm resulting in great bodily injury and personal use of a firearm, do not have identical elements. The former enhancement requires not only the use of the firearm, but also two elements that are not found in the personal use enhancement—the intent to discharge the firearm and great bodily injury as a result of the discharge of the firearm.
Estes also contends Shockley holds that when a supposed lesser offense may be committed in ways that would eliminate it as a lesser offense, the defendant does not have proper notice of which offense he or she must defend. An example would be that a firearm may be used in many ways other than discharging it. Thus, the lesser is eliminated as a "lesser offense." We do not read Shockley as requiring that conclusion. To do so would, as a practical matter, eliminate all lesser offenses because they all could be committed without committing the greater offense. Hence, this argument fails.
In the recent case of People v. Fialho (2014) 229 Cal.App.4th 1389, the Sixth District Court of Appeal reached the same conclusion in remarkably similar circumstances. This case also provides a discussion of the case law supporting its conclusion. We need not reiterate this discussion here, but note the well-established support for our conclusion.
We conclude that personal use of a firearm (§ 12022.5, subd. (a)) is a lesser included enhancement to personal discharge of a firearm resulting in great bodily injury (§ 12022.53, subd. (d)). Thus, Estes's due process right to notice of the charges against him was not violated.
DISPOSITION
The judgment is affirmed.
/s/_________
CORNELL, Acting P.J
WE CONCUR: /s/_________
GOMES, J.
/s/_________
PEÑA, J.