Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA071031, Robert M. Martinez, Judge.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Antonio Ledezma (defendant) of first-degree murder (Pen. Code, § 187, subd. (a) ) and shooting at an inhabited dwelling (§ 246) and found true the allegation that defendant intentionally discharged a firearm proximately causing death (§ 12022.53, subd. (d)). The jury acquitted defendant of dissuading a witness from reporting a crime. (§ 136.1, subd. (b)(1).) The trial court sentenced defendant to state prison for 50 years to life.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that the trial court erred in instructing the jury that the right to self-defense may not be “contrived,” the trial court erred in failing to instruct the jury on the crime of discharging a firearm in a grossly negligent manner as a lesser-included offense of shooting at an inhabited dwelling, there is insufficient evidence to support his conviction for shooting at an inhabited dwelling, and his sentence for shooting at an inhabited dwelling must be stayed pursuant to section 654. We affirm the judgment and sentence.
BACKGROUND
On June 1, 2005, the Lopez family, consisting of the Lopez parents and their children, Jasmine, Miriam, Jacqueline (“Jackie”), Jessie, and Oscar, lived in an apartment at 952 Waters Avenue in Pomona. Jasmine’s son and Miriam’s two children also lived there, and Anthony Esquivel, Jasmine’s boyfriend and the father of her son, sometimes stayed there. Jessie and Oscar associated with defendant. Malan Boswell frequented the area, selling drugs – crack cocaine.
We refer to members of the Lopez family by their first names for the purpose of clarity.
At about 8:00 p.m. on June 1, 2005, Jasmine, Jessie, and Esquivel were in the patio of the apartment at the front of the apartment complex. Defendant was standing in front of the complex by a fence. Boswell and two of his friends were in the carport area of the next building.
According to Jasmine, by 8:00 p.m., defendant and Boswell had been arguing or having a verbal exchange for a period of time. Boswell accused defendant of taking his drug territory. Defendant stated that “that’s not what he was in the area for.” Defendant and Boswell separated. Jasmine heard Boswell “calling his homies for backup” on his cellular telephone.
Just after 10:00 p.m., defendant walked up to Boswell as Boswell stood in the middle of the street, and they argued. At some point, defendant pulled a gun from his waistband and pointed it towards Boswell’s head. The argument continued, and Boswell gestured with his hands “up in the air.” Boswell brought his hands down to his waistband. He also put his hands beneath his shirt, causing Jasmine to believe that he was trying to scare defendant. Jasmine did not see a weapon in Boswell’s hands.
After reaching for his waistband, Boswell grabbed defendant’s hand that was holding the gun. Defendant pulled away from Boswell, brought up his hand, and shot Boswell in the head. Defendant then ran north on Waters Avenue towards Ninth Street. Boswell’s friends walked towards defendant, “and that’s when [Jasmine] heard [seven or eight] more gunshots.”
Jessie testified that he heard a “boom” as Boswell was talking loudly to defendant. Jessie “looked out,” and saw Boswell on the ground and defendant running from the area where the shooting occurred. Just after defendant began to run, Jessie heard 10 more gunshots. Altogether, Jessie heard about 16 gunshots. Esquivel testified that he heard about two gunshots, followed by about three more gunshots about five seconds later. Jacqueline testified that she heard about 15 gunshots.
Jasmine and Jessie ran to the back of their apartment complex. Jasmine encountered her mother and asked where Jackie was. Her mother told her that Jackie had gone toward Ninth Street and Jasmine proceeded toward Ninth Street. When Jasmine reached Ninth Street, she saw Jackie propping up defendant. Defendant had been shot in the leg. Defendant asked Jasmine to take him to his aunt’s house, which was located on Seventh Street near Rebecca. Jasmine got her car and she and Jackie put defendant in the car. Jasmine drove and defendant sat in the back left passenger seat. Jessie and Esquivel also got in the car. Jasmine parked at Seventh Street and Rebecca. Defendant asked if they could help him get to his aunt’s house. Jessie and Esquivel helped carry defendant down the street. At that time, a police officer passed by, saw them, and stopped.
At about 10:15 p.m., Officer Mario Valencia was driving on Seventh Street when he saw Jasmine’s car parked on the side of the street. Defendant, Esquivel, Jessie, and Jasmine were walking away from the car. Defendant’s lower left pant leg was soaked in blood and defendant could not walk on his own; Esquivel and Jessie were helping him walk. Officer Valencia asked them what had happened. Defendant did not say anything. There was blood in the area of the car’s left rear seat and what appeared to be a bone fragment on the floorboard. A piece of rock cocaine weighing .14 grams was found on the left rear seat area.
Defendant was taken to a hospital where his leg was treated. A police officer recovered a bullet fragment from the floor next to defendant’s hospital bed. The fragment was consistent with nine-millimeter ammunition. While defendant was in the emergency room, a gunshot residue test was performed on his hands. The test results were negative.
At about 10:00 p.m., Pomona Police Department Officer Melvon Bird was in the police department parking lot when he heard several gunshots. He could tell that the gunshots were fired from two different calibers of guns. Dispatch advised Officer Bird that it had received a call about gunshots fired in the area of Ninth Street and Waters Avenue. When Officer Bird arrived at the scene, Boswell was lying on his back in the middle of the street on Waters Avenue. A .45 caliber shell casing was near him. Boswell was dead. A doctor from the Los Angeles County Coroner’s Department testified that Boswell died from a gunshot wound to the head. The bullet recovered from Boswell’s head was consistent with .45-caliber ammunition.
The police recovered five .45-caliber casings near the front of an apartment complex at 930 Waters Avenue – the corner of Waters Avenue and Ninth Street. These casings were fired from the same firearm that fired the casing that was found next to Boswell’s body. Blood stains were found in the street near the corner of Waters Avenue and Ninth Street. The police recovered 10 nine-millimeter casings from the courtyard of the 930 Waters Avenue apartment complex. These casings were all fired from the same firearm and were located about 60 feet from the .45-caliber casings.
The police recovered a bullet and two bullet fragments that were consistent with .45-caliber ammunition from a bottle in apartment number one at the 930 Waters Avenue apartment complex. They recovered a .45-caliber bullet fragment from a grassy area at the apartment complex. The bullet recovered from Boswell’s head, the bullet and bullet fragments recovered from apartment number one at 930 Waters Avenue, and the bullet fragment found in the grassy area at 930 Waters Avenue were fired from the same firearm. On June 1, 2005, the apartments at 930 Waters Avenue complex were occupied. The police did not find a gun.
Defendant testified in his own behalf and denied any involvement in Boswell’s death. Defendant admitted that, in 2003, he had been found in possession of a baggie that contained eight individually packaged off-white rocks that resembled rock cocaine and $115. He also admitted that the rock cocaine found in Jasmine’s car was his, but he denied that he sold rock cocaine or that he was a drug dealer.
Defendant testified that, on June 1, 2005, he was introduced to Boswell in a patio area on Waters Street. Earlier that day, defendant asked someone if he had any drugs. The person responded, “Not at the moment but I’ll be getting some.” That person left. Later, after inquiring about the whereabouts of the person from whom he had attempted to buy drugs, defendant was informed that Boswell had drugs if defendant wanted to buy drugs at that time. Defendant bought the drugs from Boswell.
References to Waters “Street” as opposed to Waters “Avenue” appear to be inadvertent.
When the person from whom defendant had first attempted to buy drugs returned and inquired if defendant was still interested, defendant stated that he had already bought the drugs. That person asked defendant who had sold him the drugs, and defendant stated that he bought them from Boswell. That person confronted Boswell, and they argued. Defendant and others tried to stop the argument and separated the two men. Defendant heard the person he first attempted to buy drugs from say, “It’s not the first time he does it. And if I let him, he’s going to continue doing it.” That person confronted Boswell again, and defendant tried to leave.
As defendant was leaving, he heard a gunshot. Defendant turned and saw Boswell falling to the ground and the other person holding a gun. The shooter ran from the scene. Defendant knew the shooter’s name, but would not reveal it because he was afraid of retaliation against himself or his family. Defendant was scared and ran towards Ninth Street, trying to get home. While defendant was running, he heard more gunshots, and a bullet struck his leg, shattering both bones below the knee. According to defendant, the shooter continued to shoot after shooting Boswell, and that there was “return fire coming from the apartment on the corner.” Defendant sustained the gunshot wound to his leg during this exchange.
Defendant’s leg was “dangling,” so he dragged himself to Ninth Street where Jackie and Jasmine picked him up and carried him to an alley. Jackie and Jasmine placed defendant in the back seat of a car. Defendant asked to be taken to the hospital. Defendant did not know why they stopped on Seventh Street; he did not know anyone who lived there.
Defendant was told that they were going to switch cars, so he got out of the car. A police officer pulled up and asked what was wrong. Defendant did not respond. Defendant then told the officer that he had been shot and needed medical care. When detectives interviewed defendant, he denied knowing Boswell, arguing with Boswell, or having been on Waters Street.
DISCUSSION
I. The Trial Court Did Not Violate Defendant’s Due Process Rights When It Instructed the Jury With CALCRIM No. 3472
Defendant contends that the trial court violated his due process rights when it instructed the jury with Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 3472 that a person who provokes a fight with the intent to create an excuse to use force does not have the right of self-defense. Defendant does not contend that the instruction misstates the law. Instead, he contends that there was no factual basis supporting the instruction. Defendant’s due process rights were not violated.
CALCRIM No. 3472 provides:
A. Background
Jasmine testified that, by 8:00 p.m., defendant and Boswell had been arguing or having a verbal exchange for a period of time. Boswell had accused defendant of taking his drug territory. Defendant denied the accusation. Defendant and Boswell separated. Later, just after 10:00 p.m., defendant walked up to Boswell as Boswell stood in the middle of the street, and they argued again. At some point, defendant pulled a gun from his waistband and pointed it towards Boswell’s head. The argument continued, and Boswell gestured with his hands “up in the air.” Boswell brought his hands down to his waistband. He also put his hands beneath his shirt, causing Jasmine to believe that he was trying to scare defendant. Jasmine did not see a weapon in Boswell’s hands. After reaching for his waistband, Boswell grabbed defendant’s hand that was holding the gun. Defendant pulled away from Boswell, brought his hand up, and shot Boswell in the head.
The trial court, over the prosecutor’s objection, ruled that it was going to instruct the jury on self-defense. Based on the trial court’s ruling, the prosecutor requested the trial court to instruct on contrived self-defense. The trial court agreed, without objection by defense counsel, to instructing the jury with CALCRIM No. 3472.
B. The Trial Court Properly Instructed the Jury With CALCRIM No. 3472 as to the Murder Charge, But Not as to the Shooting at an Inhabited Dwelling Charge
“The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ [Citation.] ‘It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation].’ [Citation.]” (People v. Saddler (1979) 24 Cal.3d 671, 681.)
As to the murder charge, the trial court properly instructed the jury with CALCRIM No. 3472 because there was evidence showing that defendant was the aggressor in the incident leading to the murder. After an earlier argument, defendant contacted Boswell in the middle of the street. During their verbal argument, defendant drew a handgun and pointed it at Boswell’s head. After thwarting Boswell’s apparent attempt to disarm him, defendant shot Boswell in the head.
As for the shooting at an inhabited dwelling charge, it is difficult to determine the basis upon which the trial court instructed the jury on self-defense. The evidence the prosecution presented concerning this offense consisted of testimony from various witnesses that they heard a number of gunshots after defendant shot Boswell and the .45-caliber and nine-millimeter casings and bullet and bullet fragments found at 930 Waters Avenue. That evidence suggests a gun battle at that address, but the prosecution presented no evidence concerning who fired the first shot or the reason the first shot was fired. Defendant, however, testified that the person who shot Boswell continued to shoot after shooting Boswell, and that there was “return fire coming from the apartment on the corner.” If the shots from the apartment complex were “return fire,” then the person who shot Boswell first fired a shot at the apartment complex, and there was no evidence to support a self-defense instruction. As the trial court should not have instructed on self-defense, it also should not have instructed on contrived self-defense with CALCRIM No. 3472.
C. Prejudice
Defendant contends any error was prejudicial because “by instructing the jury on contrived self-defense, it is not improbable jurors were encouraged to speculate on the existence of a scenario that, if established, would justify rejecting [his] claim of self-defense.” Even if the trial court erred in giving the disputed instruction—and it did not in connection with the murder charge—any such error would have been harmless. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1381-1382, considering CALCRIM No. 3472’s predecessor, CALJIC No. 5.55 and quoting People v. Crandell (1988) 46 Cal.3d 833, 872-873, abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365 [“‘we are confident the jury was not sidetracked by the correct but irrelevant instruction, which did not figure in the closing arguments, and we conclude that the giving of the instruction was harmless error.’ [Citations.] [Footnote omitted.]”) The prosecutor did not discuss contrived self-defense or mention CALCRIM No. 3472 in her closing argument and the jury was not encouraged to speculate on the existence of any scenario that would defeat defendant’s claim of self-defense. The trial court instructed the jury, “You must decide what the facts are. It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial.” The trial court further instructed the jury that “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” “We presume the jurors followed this instruction: ‘The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.’ [Citations.]” (People v. Smith (2007) 40 Cal.4th 483, 517-518.) Also, because no evidence supported a self-defense theory as to the shooting at an inhabited dwelling charge, there can be no prejudice from the trial court’s instructing the jury with an instruction that defendant alleges “encouraged [the jurors] to speculate on the existence of a scenario that, if established, would justify rejecting [his] claim of self-defense.” Any indication in an instruction on self-defense with respect to a shooting at an inhabited dwelling charge presumably would benefit defendant.
II. Defendant’s Challenges to His Conviction for Shooting at an Inhabited Dwelling
Defendant contends that there is insufficient evidence to support his conviction for shooting at an inhabited dwelling, the trial court erred in failing to instruct the jury on the grossly negligent discharge of a firearm as a lesser included offense to shooting at an inhabited dwelling, and section 654 bars the imposition of a concurrent sentence for his shooting at an inhabited dwelling conviction. Each of defendant’s contentions is unavailing.
A. Sufficiency of the Evidence
Defendant contends there is insufficient evidence to support his conviction for shooting at an inhabited dwelling because no witness testified that defendant was at 930 Waters Avenue or fired a gun at that address, a gun was not found on defendant or near the location the police “picked him up,” and the gunshot residue tests were negative. Sufficient evidence supported this conviction.
“‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Bolden (2002) 29 Cal.4th 515, 553, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128.) The reviewing court must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Jasmine identified defendant as the person who shot Boswell. The .45-caliber casings found near 930 Waters Avenue were fired from the same gun that fired the.45-caliber casing found next to Boswell’s body. The bullet and bullet fragments recovered from 930 Waters Avenue, apartment number one, were fired from the same gun that fired the bullet recovered from Boswell’s head. Nine-millimeter casings were found in the courtyard of the apartment complex at 930 Waters Avenue. Blood stains were found in the street near the corner of Waters Avenue and Ninth Street. Defendant was shot in the leg. A bullet fragment removed from his leg was consistent with nine-millimeter ammunition. Defendant testified that after Boswell was shot, he ran towards Ninth Street, trying to get home. He sustained the gunshot wound to his leg when the person who shot Boswell exchanged gunfire with a person at the “apartment on the corner.” Thus, there is sufficient evidence that defendant was the person who shot at the apartment complex located at 930 Waters Avenue.
B. Trial Court’s Failure to Instruct the Jury on the Grossly Negligent Discharge of a Firearm
Defendant contends that the trial court erred in failing to instruct the jury on discharging a firearm in a grossly negligent manner (§ 246.3, subd. (a) ) as a lesser included offense to shooting at an inhabited dwelling (§ 246 ). We disagree.
Section 246.3, subdivision (a), provides:
Section 246 provides in relevant part:
1. Standard of Review
“We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
2. Relevant Principles
“In criminal cases, even absent a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. [Citation.] This obligation includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. [Citation.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) “A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, ‘“that is, evidence that a reasonable jury could find persuasive”’ [citation], which, if accepted, ‘“would absolve [the] defendant from guilt of the greater offense” [citation] but not the lesser ’ [citation]. [Citations.]” (People v. Cole, supra, 33 Cal.4th at p. 1218.)
Discharging a firearm in a grossly negligent manner in violation of section 246.3 is a lesser included offense to shooting at an inhabited dwelling in violation of section 246. (People v. Overman (2005) 126 Cal.App.4th 1344, 1360.) Sections 246 and 246.3 are general intent crimes. (Id. at p. 1361.) “[S]ection 246 is violated when a defendant intentionally discharges a firearm either directly at a proscribed target (e.g., an inhabited dwelling house or occupied building) or in close proximity to the target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it. No specific intent to strike the target, kill or injure persons, or achieve any other result beyond shooting at or in the general vicinity or range of the target is required.” (Ibid.)
“Unlike section 246, section 246.3 does not require that an inhabited dwelling, occupied building, or any other specific target be in the defendant's firing range. But like section 246, section 246.3 involves discharge of a firearm under circumstances presenting a significant risk that personal injury or death will result. Section 246 proscribes discharging a firearm at specific targets, the act of which presumably presents a significant risk that personal injury or death will result. Section 246.3 proscribes discharging a firearm in any grossly negligent manner which presents a significant risk that personal injury or death will result.” (People v. Overman, supra, 126 Cal.App.4th at p. 1362.)
“The only difference between sections 246 and 246.3 is that section 246 requires that a specific target (e.g., an inhabited dwelling or an occupied building) be in the defendant’s firing range. Section 246[.3] [sic] does not include this requirement. Both crimes, however, involve the intentional discharge of a firearm in a grossly negligent manner which presents a significant risk that personal injury or death will result.” (People v. Overman, supra, 126 Cal.App.4th at p. 1362.)
3. Application of Relevant Principles
The evidence did not raise a question whether all of the elements of shooting at an inhabited dwelling were present. (People v. Koontz, supra, 27 Cal.4th at p. 1085.) There was no substantial evidence which, if accepted, would have absolved defendant of shooting at an inhabited dwelling, but not of discharging a firearm in a grossly negligent manner. (People v. Cole, supra, 33 Cal.4th at p. 1218.) As discussed, section 246 has the added requirement that a defendant discharge a firearm either directly at a prohibited target or in close proximity to such a target under circumstances that show a conscious disregard for the probability that a bullet will strike the target or persons in the target or nearby. (People v. Overman, supra, 126 Cal.App.4th at pp. 1361-1362.)
Here, the evidence shows a gun battle at the apartment complex at 930 Waters Avenue between someone outside the complex and someone in the complex’s courtyard. The police recovered five .45-caliber casings near the front of the complex and 10 nine-millimeter casings from the complex’s courtyard. The police also recovered a bullet and two bullet fragments that were consistent with .45-caliber ammunition from a bottle in an apartment in the complex. No evidence was presented that suggested that the person firing the .45-caliber ammunition was firing wildly or was firing in any direction other than at the person firing the nine-millimeter ammunition from the courtyard. Accordingly, there is no evidence from which a jury could have found that defendant violated section 246.3, but not section 246, and the trial court did not err in failing to instruct the jury on discharging a firearm in a grossly negligent manner. (People v. Cole, supra, 33 Cal.4th at p. 1218; People v. Koontz, supra, 27 Cal.4th at p. 1085.)
C. Section 654
Defendant contends that section 654 bars imposition of his five-year concurrent term for his conviction for shooting at an inhabited dwelling. Defendant was properly sentenced.
Section 654, subdivision (a) provides:
“The test for determining whether section 654 prohibits multiple punishment has long been established: ‘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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.
“‘The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [¶] In applying this rule, the courts analyze the evidence to determine whether all the offenses committed were part of the defendant’s original plan or some were an afterthought or acts committed in response to unforeseen developments.” (People v. Vidaurri (1980) 103 Cal.App.3d 450, 464 quoting People v. Beamon (1973) 8 Cal.3d 625, 639.)
Defendant asserts that his murder conviction and his shooting at an inhabited dwelling conviction arose from the same act—“shooting [Boswell] and running down the street firing more shots.” Those offenses, defendant asserts, “were committed pursuant to a single intent, occurred almost simultaneously, and did not fall within the multiple victim exception” to section 654.
In this case, defendant shot Boswell in the head and then fled from the scene. There is evidence that during his flight, for a reason undisclosed in the record, defendant engaged in a gun battle with someone at the apartment complex at 930 Waters Avenue. No evidence was presented that defendant had a single objective and intent in committing the two offenses. There is no evidence that suggests that defendant planned the shooting at the apartment complex at the time he shot Boswell. Instead, that offense apparently was a response to an unforeseen development as defendant was trying to escape and, accordingly, the punishment for that offense is not barred by section 654. (See People v. Vidaurri, supra, 103 Cal.App.3d at p. 465.)
DISPOSITION
The judgment and sentence are affirmed.
We concur: ARMSTRONG, Acting P. J. KRIEGLER, J.
“A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.”
“Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.”
“Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house . . . is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year.”
“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”