Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F02152
NICHOLSON, Acting P.J.
Defendant Jessie Emmite Laborin appeals his conviction of second degree murder and other crimes arising from his shooting a gun from a motor vehicle. The bullet ricocheted and struck the victim, with whom defendant had just had an altercation. Defendant claims the trial court erred by denying three different requests for continuances and by convicting him of allegedly lesser included offenses. We disagree with defendant’s contentions and, except to make a technical modification, we affirm the judgment.
FACTS
Donna Prater loaned her bicycle to defendant. On March 2, 2003, while driving with a friend, Tina Davido, Prater saw a teenage Black male riding a bicycle that resembled hers. She stopped and asked the teenager about the bike. He said he had purchased it from a “Mexican guy” for $20.
As the women continued driving, defendant, then almost 26 years old, called Prater and asked if she could pick him up and give him a ride home. Defendant is Hispanic. After picking up defendant, Prater drove towards defendant’s home, all the while looking for the teen she had seen on the bicycle. She wanted to see defendant’s response if they encountered the teen.
In fact, they saw the teen on the bike, and Prater commented to defendant that the teen’s bike looked like her bike. Defendant acted surprised. He tried to call the teen over, but the man rode off. Defendant told Prater to follow the teen, saying, “This nigger must have taken it off my porch.” Prater attempted to follow the teen, but she lost him.
As they continued looking, Prater came upon a couple, a young Black man and a Black woman, standing in the street and arguing with each other. The man was 16-year-old Duraey Kenneth Jones, and the woman was Natasha Powells, the mother of Jones’s girlfriend. Prater pulled over.
Defendant got out of the car and asked the couple if they had seen the teenager on the bicycle ride by. The couple began yelling back at him. Powells began yelling at defendant, telling him they were in their own argument and he should go away.
As defendant attempted to ask again, Jones hit him. Defendant swung back and missed, and Jones hit him again. By now, more people had gathered around. One man asked Prater and her friends to leave. Prater apologized and explained why they were there. She also yelled at defendant to get back into the car.
Defendant, bleeding, got back in the car. Jones continued yelling at him. Defendant told Prater to go. Jones walked around the front of the car and was walking around to the side and rear of the car as Prater began pulling away. As she did, she heard three shots, and saw defendant leaning out the passenger window.
Davido testified that after the shooting, defendant sat back down in the car and pointed the gun at her and Prater. Davido told Prater to “just drive right” because Prater was “swerving all over.”
Jones died from a gunshot wound that entered his upper right back and exited his right neck. Based on black material located around the entrance wound, Dr. Mark Super, the forensic pathologist who performed an autopsy on the victim, concluded the wound was produced by a bullet that bounced off the asphalt pavement and fragmented. There were also wounds from bullet fragments to Jones’s right chest and the back of his left thigh. The pathologist found no evidence of a direct hit upon Jones.
CASE HISTORY
A jury convicted defendant of second degree murder with an enhancement of shooting a firearm from a car with the intent to inflict great bodily injury (Pen. Code, §§ 187, subd. (a), 190, subd. (d) (count one)); possession of a firearm by a felon (§ 12021, subd. (a)(1) (count two)); and intentionally discharging a firearm from a motor vehicle (§ 12034, subd. (c) (count three)). The jury found true that as to counts one and three, defendant personally discharged a firearm within the meaning of section 12022.53, subdivision (d). The jury found that as to count one, defendant personally used a firearm within the meaning of sections 12022.5, subdivision (a)(1), and 12022.53, subdivision (b). The jury also found that as to count three, defendant personally used a firearm within the meaning of section 12022.53, subdivision (c). Finally, the court determined that defendant had served a prior prison term within the meaning of section 667.5, subdivision (b). (CT 295-298, 354-357)
Further undesignated section references are to the Penal Code.
The court sentenced defendant to a prison term of 46 years to life, calculated as follows: 20 years to life on count one; a consecutive term of 25 years to life for the enhancement pursuant to section 12022.53, subdivision (d) on count one; a consecutive one-year term for the prior prison enhancement; a concurrent two-year middle term on count two, and a concurrent five-year middle term on count three. The court stayed the enhancement under section 12022.53, subdivision (d), as to count three pursuant to section 654, and implicitly stayed all other enhancements on the same basis.
Defendant now appeals from the judgment, claiming the court committed prejudicial error by: (1) denying defendant’s motion made on the first day of trial for a two-week continuance to permit his expert witness to appear; (2) denying defendant’s request for a one- or two-day midtrial continuance to enable a percipient witness to appear; (3) denying defendant’s request to continue the hearing on his motion for new trial; (4) imposing sentence on the weapons use enhancements, which, defendant argues, were lesser included offenses, and (5) imposing sentence on count three, which, defendant asserts, was a lesser included offense of count one with its special circumstance.
DISCUSSION
I
Request for Two-Week Continuance of Trial
Defendant claims the trial court abused its discretion and violated his constitutional rights to effective counsel and due process when it denied his motion on the first day of trial to continue trial for two weeks to enable his ballistics expert to attend. He asserts defense counsel used due diligence in attempting to secure the expert’s attendance but the expert had become unavailable for unforeseeable reasons. He also claims a continuance would have caused no inconvenience to the court or to witnesses. He argues the denial was prejudicial because the expert would have shown that defendant aimed and fired the gun into the ground and thus lacked the intent to kill the victim. We conclude the trial court did not abuse its discretion.
A. Additional background information
This case was subject to numerous extensions before it finally reached trial. Trial was originally set for late January 2004, but that month defendant’s request to represent himself was granted and the trial date was vacated. Over the next few months, trial dates were set and vacated, and trial was eventually set for September 8, 2004. On that date, defendant requested reappointment of the public defender, and the trial date was vacated. Later that month, the public defender declared a conflict, and Kenneth Rosenfeld was appointed as counsel. Rosenfeld represented defendant through trial.
On October 21, 2004, trial was set for March 16, 2005. On March 16, the trial date was vacated because Rosenfeld was in trial. A new date was set for May 12, 2005. On May 12, trial was moved to June 30, 2005, because counsel for both parties were in trial. On June 30, counsel for both parties agreed to trail the matter to July 7, 2005. The prosecutor did not oppose any of these extensions.
On July 6, 2005, the day before trial, defendant filed a motion seeking a continuance. Defense counsel declared he had retained the services of an “expert in bullet paths” for “possible rebuttal testimony” and to have him “listen to the testimony of Dr. [Mark] Super and other witnesses.” Counsel stated the expert would be unavailable until July 26.
The matter was considered at three different hearings. The Honorable John V. Stroud in Department 4 heard the motion first on the morning of trial. Defense counsel claimed the expert was a material witness to be present for cross-examination of Dr. Super and “possibly” to testify about the ricochet. Counsel stated the expert was unavailable because he had a conflicting court appearance in Colorado and a family conflict. Counsel told the court he could not proceed without the expert.
Judge Stroud denied the motion: “Just to come in and say he’s preparing for another case, he’s going to be a witness in another case is not sufficient grounds for his unavailability.” He assigned the case for trial to Department 14, the Honorable David W. Abbott.
Later that morning, defense counsel renewed his motion before Judge Abbott. Counsel identified the expert as Larry McCormick. McCormick, counsel claimed, was an expert in crime scene reconstruction, bullet paths and bullet trajectories, and had qualified as an expert in the Sacramento Superior Court. McCormick was to evaluate the autopsy report, and he was to provide ballistics reconstruction, bullet trajectory, and crime scene reconstruction. Counsel claimed Dr. Super could not provide this information.
Counsel never explained McCormick’s education and training as an expert, merely that he was the head of a professional rodeo association who spent considerable time on the road.
The prosecutor opposed on numerous grounds. The case had been continued many times, and defense counsel had assured the prosecutor “over and over and over” that he would be ready for trial, even as recently as one week before. The prosecution had “difficult witnesses” who were ready to testify, and a family that was eager to put this matter behind them.
The prosecutor also argued the expert witness was not material. There was no dispute that the victim was killed by bullet fragments that had ricocheted. Moreover, Dr. Super was qualified to testify as to cause of death, the type of weapon used, and, if necessary, trajectory. Any testimony from McCormick, the prosecutor argued, would be cumulative.
Defense counsel stated he had worked with McCormick for many years, and he had accepted McCormick’s word that he was unavailable until July 26. Counsel read into the record all of Dr. Super’s report. He argued it seemed unlikely that one fragmenting ricocheted bullet could hit “the anterior chest and back,” and he needed McCormick to reconstruct the scene to address that issue. “Mr. McCormick intends to be here,” counsel stated, “to hear material witnesses and their testimony in order to formulate diagrams and mathematical calculations, which are far beyond the realm of my understanding or expertise.”
Judge Abbott agreed with Judge Stroud and the prosecutor, and he denied the motion. The prosecution’s witnesses were ready at some expense and difficulty. Also, it was not clear to the court that McCormick would provide testimony that would expand or clarify Dr. Super’s testimony. The court denied the motion without prejudice. Defendant could renew it after the court had seen the evidence and defendant could demonstrate McCormick’s testimony would be probative. If at that time there was good cause to recess the trial for two or three days to allow McCormick to appear, the court would consider doing that.
Defense counsel stated he could not prepare for cross-examination without McCormick. He asked for additional time so that Judge Stroud could reconsider his earlier denial because that court had not seen Dr. Super’s report. The court granted the request, and the parties were back before Judge Stroud before the day was out. The court put the matter over until the following morning, and requested additional information on the expert’s unavailability.
The next day, defense counsel informed the court he had spoken with McCormick and was ready to provide additional information. Counsel had first contacted McCormick in February 2005 about the case after Dr. Super had filed an addendum to his coroner’s report, and McCormick had agreed to assist defendant. Unbeknown to counsel, McCormick had moved to Colorado in April or May to become the chief operating officer of a professional rodeo association. Counsel had not been able to provide McCormick with a firm trial date in February, April and May because no “definite date” had been set and he had been in a long homicide trial.
Defense counsel contacted McCormick about one week before trial started, and McCormick informed him he was not available on July 7. McCormick was busy with a major event for his rodeo association on July 15, including meetings with shareholders and the media. On July 19, McCormick was scheduled to testify under subpoena in a court matter in Colorado. The earliest he could appear in this matter was July 21.
Judge Stroud denied the continuance motion, stating he had not heard any new information that changed his decision of the previous day. Defense counsel responded: “It’s a mistake on my part. It’s a mistake that I had made and I don’t want [defendant] to be punished for that. I’m willing to accept this court’s contempt. I have an attorney present with me. [¶] But to punish [defendant] for me not checking with Larry McCormick within the last couple of months and checking on his schedule to make sure that July 7th was an absolute day, I was unaware he was the chief operating officer of the [rodeo association].” The court reiterated its decision: “I think your case for a continuance is worse after the information you’ve given me today . . . .”
Defense counsel again claimed he would not be able to do the trial and was going to ask to be relieved. He followed through on his request to be relieved the following week, but the court denied it. Counsel also filed in this court a petition for writ of prohibition, which we denied. (C050207.)
B. Analysis
“Continuances shall be granted only upon a showing of good cause.” (§ 1050, subd. (e).) “‘The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge.’ [Citation.] ‘The burden is on [the defendant] to establish an abuse of judicial discretion . . . .’ [Citation.] ‘[A]n order of denial is seldom successfully attacked.’ [Citation.]” (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
“‘The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his motion for a continuance cannot result in a reversal of a judgment of conviction. [Citations.]’ [Citations.]” (People v. Zapien (1993) 4 Cal.4th 929, 972.)
The trial court here did not abuse its discretion in denying defendant’s motion for a continuance. The record demonstrates the court considered defense counsel’s diligence in securing the witness’s attendance, the burden on other witnesses and the court, and the likelihood that the benefit defendant sought from the continuance would be achieved. Sufficient evidence supports the court’s weighing of these factors and concluding against defendant.
The court determined that counsel had not been diligent in securing McCormick’s attendance. Counsel himself stated that he had not kept in contact with the witness to inform him of the trial dates after first retaining him. Trial dates changed three times between the time counsel retained McCormick and the time he contacted McCormick to inform him of the July 7 trial date. A diligent attorney would have informed the witness each time trial was rescheduled and ascertained the witness’s availability for the new date.
The court relied upon the prosecutor’s representations and the record to note the impact continuing the trial would have on witnesses and the court. Trial had been continued numerous times for legitimate reasons. The prosecutor had difficulty arranging for his witnesses’ attendance, but he did so in reliance on defense counsel’s repeated assertions that he would be ready on July 7. Counsel could have prevented this had he maintained contact with McCormick over the course of the case’s scheduling changes.
Most significantly, the court concluded that McCormick’s testimony would add little to the undisputed facts already at hand. There was no dispute that the bullets ricocheted and fragmented before striking the victim. Testifying as to the bullet’s exact trajectory adds little to the obvious fact that the gun was not aimed directly at the victim but was nonetheless fired by defendant in reckless and conscious disregard of life. Granting the continuance thus would have added little to the case.
Under these circumstances, we conclude the trial courts did not abuse their discretion in denying defendant’s request for a two-week continuance.
II
Request for Midtrial Continuance
Defendant argues the trial court erred in denying his second request for a continuance, this one made midtrial for a one- or two-day continuance to allow a percipient witness to appear and testify. Defendant claims counsel used reasonable and diligent efforts to secure the witness’s attendance, and that the witness’s testimony was material. We conclude the trial court did not abuse its discretion in denying this second request.
A. Additional background information
The prosecution rested its case on Wednesday, July 13, 2005. The court asked defense counsel how many witnesses he planned to present, and counsel stated he was trying to find one who had moved since last contacted. The trial court indicated it would spend part of the following day, Thursday, reviewing jury instructions, and be dark on Friday. The court informed defense counsel he would not have to rest his case on Thursday, and would have until Monday to locate the missing witness.
On Monday, the witness, Alca Hannon, did not appear. Defense counsel stated Hannon moved from Sacramento to Oakland with little forwarding information. Counsel obtained a current phone number for the witness’s grandfather. Counsel spoke with Hannon the previous week and asked for his address. Hannon gave him an incorrect address. Counsel obtained Hannon’s grandfather’s address using a reverse directory.
The process server went to Oakland the preceding Friday and confirmed with the grandfather that Hannon lived there. Over the weekend, the process server attempted to serve the witness at least five more times, but the witness was never home. The grandfather continued to say Hannon would be back later.
Counsel stated that Hannon was reluctant to appear in court for fear of retribution. Counsel also stated that if Hannon were to testify, he would claim that defendant aimed the gun at the ground when he fired it, put his hands up and said he did not want to fight anymore, and was pursued by the victim after the fight. Counsel asked for a warrant to be issued, and for a continuance to have Hannon appear in court.
The prosecutor opposed the request. He argued there was no basis for a warrant because the witness had not been served. He also argued against a continuance, claiming attempts to serve Hannon began only a few days previously. “I can’t see that being a basis for a continuance at this stage of the trial when the trial date has been known for a long time.”
Defense counsel retorted that he had done enough to satisfy the requirements of due diligence. “It wasn’t as if we’ve known where he lived for the last three years and just decided a few days ago to find him.”
The trial court denied the request for a warrant and a continuance. It could not issue a warrant because Hannon had not been served. It also would not delay the case further at this stage of the proceedings to allow counsel more time to serve Hannon. “I realize you have had difficulty in locating him,” the court stated, “but I don’t have any assurance that he is going to be served or secured, and therefore, any continuance and any further delay is somewhat uncertain in terms of the time that would be consumed with that entire process. [¶] We are at virtually the end of this trial, and therefore, I am not going to continue this case to allow you additional time to try to secure Mr. Hannon’s presence.”
Defense counsel stated he knew where Hannon lived, and it would take only one or two days to serve him. The court was not persuaded, noting counsel had been attempting service since the past Thursday, and Hannon did not want to be found. “He’s evading service. And I don’t have any assurance that you’re going to get him with a subpoena, even if I gave you another two days.”
B. Analysis
We review the court’s decision to deny this second request for a continuance under the same abuse of discretion standard we applied to the first request. As with the earlier request, we find no abuse of discretion.
Despite defense counsel’s efforts, there was no assurance a continuance would guarantee that Hannon would be served. The court gave counsel additional time to attempt service even after the defense finished presenting its case. Counsel admits he attempted to serve Hannon seven times during that additional time period, all to no avail. Defendant was entitled to a reasonable time to serve Hannon, but the court had already provided that time. It did not abuse its discretion by refusing to continue providing defendant even more additional time to serve a witness successfully avoiding service when the trial was otherwise complete. There was no benefit to Hannon’s testimony if he could not be brought into court.
Moreover, Hannon’s testimony would have been cumulative. According to defense counsel, Hannon would testify that defendant aimed his gun at the ground when he fired it. This point was not in dispute. Defendant thus suffered no prejudice by not having Hannon testify. The trial court did not abuse its discretion when it denied defendant’s request for this continuance.
III
Continuance of Hearing on New Trial Motion
Defendant faults the court for denying his third continuance request, this one to continue the hearing on his motion for new trial. He claims the court abused its discretion because its denial precluded the defense from introducing expert evidence showing the prejudice created by the trial court’s denial of defendant’s first continuance request regarding the appearance of Mr. McCormick. We disagree.
A. Additional background information
The jury returned its verdicts on July 19, 2005. The court delayed sentencing until September 21 to allow for new counsel to prepare a motion for new trial, and it appointed counsel from the conflict panel.
On August 16, attorneys Jeffrey Rosenblum and Victor Haltom substituted in as counsel of record for defendant.
On September 21, the court stated it understood the transcripts would be ready by October 7 and that defense counsel wanted additional time. The court scheduled the matter for a status conference on October 28.
At the October 28 status conference, defense counsel Haltom stated he had received most of the transcript two weeks earlier, and expected to receive the remaining 40 pages that day. He anticipated retaining one or two experts in ballistics and pathology, as well as an investigator to conduct at least one out-of-state interview. He also asked for copies of transcripts of sealed hearings taken during the trial. He anticipated having a motion for new trial ready to file in six weeks, and asked the court for that much time.
The court gave defense counsel five weeks, until December 1, to file his motion, and it scheduled a hearing on the motion for December 16. Although the time granted for briefing was one week less than requested, defense counsel stated he would comply with the court’s order.
On November 28, however, defense counsel filed a motion to continue the briefing schedule and the hearing date. Counsel was assessing whether defendant’s constitutional rights were compromised by either the trial court’s denial of trial counsel’s request for a continuance to secure McCormick’s attendance, or trial counsel’s ineffective performance at trial or in failing to have McCormick under subpoena.
Since the October 28 status conference, defense counsel had completed his review of the trial record, and, as of November 15, had retained a new ballistics expert, George Luczy. Luczy needed additional time and material to assess the case, including any materials McCormick had prepared for the case. Counsel had spoken with McCormick on November 21, but McCormick was leaving on a three-week business trip and could not review his file until his return. Counsel had not heard back from McCormick. However, counsel indicated that Luczy was “certain” that the fatal wound that struck the victim was a ricochet shot.
The trial court denied the request to continue the hearing, but it granted defendant counsel an additional eight days, until December 9, to complete his investigation and file his papers.
Defendant filed his motion for new trial on December 9. One of his grounds was that he was denied a fair trial due either to the court’s denials of his request for a continuance to allow McCormick to participate, or to trial counsel’s ineffectiveness. Defense counsel stated he was working with Luczy to obtain his opinion on the bullets’ paths and points of origin, and he hoped that Luczy’s testimony would be available at the hearing on the motion.
Defense counsel then argued the relevance of that testimony: “If a ballistics expert is able to establish the distance between [defendant] and [the victim] at the time of the shooting, and if that distance is demonstrated to be relatively brief, such evidence would militate in favor of [defendant’s] defense on both the heat-of-passion and imperfect self-defense fronts.
“If the ballistics expert is able to determine the angle at which [defendant’s] gun was pointed at the time of the shooting, such evidence could be germane to the level of recklessness of [defendant’s] conduct, viz., whether his conduct involved conscious disregard for the safety and life of [the victim].” (Italics in original.)
At the hearing on the motion, however, Luczy did not appear. Defense counsel acknowledged “that we don’t have a showing of prejudice . . . we have not completed our investigation. We’ve consulted with our ballistics expert. I talked to him yesterday and the last communication from him to me was, look, I need additional time. I need to do further investigation.”
Defense cocounsel Rosenblum explained his contacts with McCormick. He had contacted McCormick about four weeks earlier. McCormick was leaving on business for three weeks. He had been unable to find a file on this case, and he could not recall whether he performed any investigation on it. Trial counsel tried to contact McCormick during the ensuing three weeks but was unsuccessful. Counsel reached McCormick upon the latter’s return to Colorado, but McCormick’s stepmother had just passed away and he was unable to talk. Defendant thus was unable to pursue any investigation with McCormick.
The prosecutor emphasized that the court had before it only speculation of what an expert might say, and even if that speculation were true, it still would not change the verdict. “If you just guess what a defense expert might say, it’s not going to erase the fact that this defendant shot multiple times towards the victim as he was driving away in his car. Now that’s implied malice and that’s what the jury found . . . .”
The trial court agreed with the prosecutor and denied the motion for new trial. As to prejudice from the court’s original refusal to continue trial to enable the defense to have McCormick in court, the court concluded that defendant still had not made an adequate showing of good cause that would have justified continuing the trial for McCormick to participate.
As to the argument of inadequacy of counsel, the court stated that the most favorable opinion an expert could render would not have changed the verdict. There was no dispute that the bullet ricocheted. “[I]mplied malice can still be found by the jury and under the total circumstance of the case likely would have [been] found.”
B. Analysis
The court did not abuse its discretion denying defendant’s request to continue the hearing on the motion for new trial. As already mentioned, to grant a continuance, the court must weigh, among other factors, the benefit the moving party anticipates from the continuance and the likelihood that the benefit will result. (People v. Zapien, supra, 4 Cal.4th at p. 972.) The trial court clearly weighed that factor and determined defendant would not benefit from a continuance. No ballistics expert was needed to show that defendant did not aim the gun directly at the victim, nor could a ballistics expert disprove that defendant fired the gun multiple times with conscious disregard for the victim’s safety.
The undisputed facts demonstrated the existence of implied malice, an element of second degree murder. “[M]alice is implied ‘when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’ [citation].” (People v. Blakeley (2000) 23 Cal.4th 82, 87.) The Supreme Court describes this mental state as a “‘conscious disregard for life.’” (Ibid.) No expert testimony was likely to overcome the prosecution’s evidence of implied malice in this case.
Defendant argues that his attorneys were diligent in attempting to retain Luczy, the new expert, in preparation for the new trial motion. Even if that is so, it does not overcome the futility of seeking the expert in the first place. Recognizing that point, the trial court was well within its discretion to deny the request for a continuance on the new trial motion.
IV
Weapons Enhancements as Lesser Included Offenses
Defendant claims the imposition of sentence enhancements under section 12022.53, subdivision (d), violates the “multiple conviction rule” of People v. Pearson (1986) 42 Cal.3d 351, 355. He asserts the weapons enhancement is a lesser included offense of his convictions on counts one and three, second degree murder with its enhancement allegation under section 190, subdivision (d), and intentionally discharging a firearm from a motor vehicle, because the elements of those crimes and the enhancement embrace all of the elements for establishing the weapons enhancement. He claims the Supreme Court’s earlier holding in People v. Wolcott (1983) 34 Cal.3d 92, that sentence enhancements are excluded from determining the existence of lesser included offenses, is no longer valid in light of Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19 [147 L.Ed.2d 435, 457] (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], and People v. Seel (2004) 34 Cal.4th 535, 539, fn. 2, 541-543 (Seel).
Our Supreme Court recently rejected defendant’s argument. In People v. Sloan (2007) 42 Cal.4th 110, the high court made clear that enhancements are not legal elements of the offenses to which they attach. Thus, they are not considered in defining lesser included offenses under the legal elements test. The rule applies whether the enhancements are attached to the greater offense or the lesser offense. (Id. at pp. 118-120.)
Moreover, in People v. Izaguirre (2007) 42 Cal.4th 126 (Izaguirre), the Supreme Court determined that an enhancement itself cannot be considered to be a lesser included offense. (Id. at p. 134.) Apprendi and Seel do not affect this rule. Apprendi, grounded on a Fifth Amendment right to due process and a Sixth Amendment right to jury trial, required no more than that the enhancements be tried to a jury and found true beyond a reasonable doubt, which they were. (Izaguirre, supra, 42 Cal.4th at p. 133.)
Apprendi raises double jeopardy protections only when an allegation is the functional equivalent of an element of an offense greater than the charged offense and the defendant is subject to retrial on that element after acquittal or conviction. (Seel, supra, 34 Cal.4th at pp. 548-550 [allegation of willful and premeditated attempted murder under section 664, subdivision (a), was effectively an intent element of an offense greater than attempted murder under section 187, subdivision (a), and could not be retried where there was no substantial evidence in trial record of premeditation].)
Here, the weapons enhancements “did not serve to further characterize defendant’s intent in committing [second degree murder and intentionally discharging a firearm from a motor vehicle], nor effectively place defendant in jeopardy for an ‘offense’ greater than the [crimes] with which he was charged . . . .” (Izaguirre, supra, 42 Cal.4th at p. 134.) The firearm enhancement added no additional elements to the crime of second degree murder with the special circumstance of a drive-by shooting or to the crime of firing a firearm from a motor vehicle. Thus, the double jeopardy protection against a second prosecution for the same offense was not implicated.
“The rule . . . barring consideration of enhancements in defining necessarily included charged offenses under the multiple conviction rule does not implicate the double jeopardy clause’s protection against a second prosecution for the same offense after acquittal or conviction. We are not here concerned with a retrial or ‘second prosecution,’ but instead with a unitary trial in which section 954 expressly permits conviction of more than one crime arising out of the same act or course of conduct. The exception to section 954 created in Pearson, supra, 42 Cal.3d 351, was specifically addressed to convictions of necessarily included offenses in a unitary proceeding that could lead to improper multiple punishments in contravention of section 654, not multiple enhancements expressly authorized under other sentencing provisions. Nor does defendant’s claim that these conduct enhancements are the functional equivalent of completed offenses or convictions for purposes of the multiple conviction rule find any support in the case law. Conduct enhancements cannot be imposed standing alone as additional punishment. By definition, an enhancement is ‘an additional term of imprisonment added to the base term.’ (Cal. Rules of Court, rule 4.405(3); People v. Jefferson (1999) 21 Cal.4th 86, 101.) For that reason alone, an enhancement cannot be equated with an offense. (See People v. Chiu (2003) 113 Cal.App.4th 1260, 1265.)
“To the extent defendant claims enhancements should be considered when applying the multiple conviction rule to charged offenses, our holding in [People v. Reed (2006)] 38 Cal.4th 1224, controls. They may not. Beyond that, Apprendi, supra, 530 U.S. 466, requires only that the firearm-related enhancements below had to be found true by a jury beyond a reasonable doubt, which they were. Seel’s interpretation of the scope of the holding in Apprendi pertained to an aspect of federal double jeopardy protection -- protection against a second prosecution for the same offense after acquittal -- that is not implicated in this case. (Seel, supra, 34 Cal.4th at pp. 548–549.)” (Izaguirre, supra, 42 Cal.4th at p. 134, italics in original, fn. omitted.)
The weapon enhancements thus did not violate the multiple conviction rule.
V
Count Three as Lesser Included Offense
Using the same reasoning from his preceding argument, defendant asserts his conviction on count three, intentionally discharging a firearm from a motor vehicle, is a lesser included offense of count one, murder with the special circumstance of murder perpetrated by shooting a firearm from a motor vehicle. However, as with the weapons enhancement, a special circumstance is a penalty enhancement and not an element of a charged crime. Thus, it is not considered when determining the existence of a lesser included offense. (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1231.) Here, there is no doubt that intentionally discharging a firearm from a motor vehicle is not a lesser included offense of second degree murder.
VI
Modification of Judgment
The trial court’s judgment does not reflect the jury verdicts finding true the enhancement allegations under sections 12022.5, subdivision (a)(1), and 12022.53, subdivision (b), as to count one, and section 12022.53, subdivision (c), as to count three. We modify the judgment to include these enhancements as true, and, consistent with the trial court’s implied ruling, stay these enhancements pursuant to section 654.
We also direct the trial court to amend the abstract of judgment to reflect this modification.
DISPOSITION
The judgment is modified to include as true enhancement allegations under sections 12022.5, subdivision (a)(1), and 12022.53, subdivision (b), as to count one, and section 12022.53, subdivision (c), as to count three, and to stay these enhancements pursuant to section 654. In all other respects, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward same to the Department of Corrections and Rehabilitation.
We concur: RAYE , J., BUTZ, J.