Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC067668A
Margulies, Acting P.J.
A jury convicted defendant of four counts of malicious discharge of a firearm from a motor vehicle. The trial court stayed defendant’s sentence on three of the four counts. On appeal, defendant contends three of the convictions must be reversed under double jeopardy principles. We disagree, and affirm the judgment.
I. BACKGROUND
Defendant was charged by amended information with the attempted murders of Bartelome Ramirez, Manuel Ramirez, Castro Dominquez, and Gustavo Navarette (Pen. Code, §§ 187, subd. (a), 664; counts 1–4), assault with a firearm on the same four persons (§ 245, subd. (a)(2); counts 5–8), malicious discharge of a firearm from a motor vehicle at the same four persons (§ 12034, subd. (c); counts 9–12), and false identification to a peace officer (§ 148.9, subd. (a), count 13). Enhancements were alleged for (1) discharge of a firearm pursuant to section 12022.53, subdivision (c) as to counts 1 to 4; and (2) personal use of a firearm pursuant to section 12022.5, subdivision (a) as to counts 5 to 8. Defendant pleaded not guilty to all counts and denied the special allegations. A jury trial commenced on July 28, 2009.
All further statutory references are to the Penal Code.
A. Trial Evidence
About 8:00 p.m. on July 7, 2008, Bartelome Ramirez, Manuel Ramirez, Castro Dominquez, and Gustavo Navarette were sitting at a table in the driveway of a house on Fourth Avenue in Redwood City, drinking beer. Two trucks were parked in the front half of the driveway: Bartelome’s red Toyota and another tenant’s Durango. Although the table was behind the two trucks, at the back of the driveway, the men sitting there could see past the trucks out to the street. Bartelome, who considered himself to be the owner of the house and collected rent from the other tenants, stayed part of the week in the converted garage on the property.
Another person was listed as the owner in the county assessor’s records.
Defendant parked his truck in the driveway and walked down the driveway to the back door of the house, the only entrance. Bartelome did not know defendant’s name but he knew defendant often visited one of the tenants. Before defendant could enter the house, Bartelome stopped him and asked him who he was looking for. Defendant responded that he was looking for a friend, and tried to open the door. Bartelome said the friend was not home, prevented defendant from opening the door, and told him he should ask permission before entering the house. Defendant became extremely upset about this and a shouting match ensued. Dominguez and Manuel Ramirez grabbed defendant and escorted him back to his truck.
As defendant got in his truck, a dark-skinned young man who was not identified threw a brick that hit the hood of defendant’s truck. As he drove away, defendant shouted, “I’m gonna leave but I’m coming back.” Bartelome testified defendant looked “very, very angry.” The four friends returned to the table in the driveway.
Defendant offered evidence the brick broke one of his windows, in support of his theory that he returned to shoot out the windows on the vehicles parked in the driveway, not to shoot at the men. No broken glass was found in the driveway or on the street where defendant’s vehicle had been.
Approximately 10 to 15 minutes later, defendant returned in the same truck, parked in front of the driveway and, while remaining in his truck, started shooting a gun down the driveway toward the four men. The victims could see defendant and believed he was shooting at them. Based on the sound of the bullets, Navarette believed defendant was firing a.22-caliber handgun.
Bartelome testified that when the shooting started he ran in a zigzag pattern until he reached the space between his Toyota and the Durango parked in the driveway, where he crouched down. As he peeked out from between the trucks, defendant fired at him again, hitting the Durango’s windshield and the Toyota’s rear tire. Bartelome and Navarette testified defendant fired a total of four or five shots. When he was finished shooting, defendant sped away and Bartelome called 911.
A criminalist testified the Durango’s windshield had two bullet holes and there was an “impact” at another site on the windshield that could have been caused by a bullet. An expended copper bullet shell was found inside the Durango. A lead fragment was removed from the Toyota’s tire, which had gone flat at the time of the shooting.
Defendant was arrested after Navarette spotted defendant in Redwood City on September 8, 2008 and notified the police. Defendant gave police a false name and date of birth. During a videotaped interview, defendant waived his Miranda rights and acknowledged being at the scene. The videotape was admitted in evidence and a transcript was read into the record. Defendant told the officers two men hit him with sticks as they walked him back to his truck during his initial visit on the day of the shooting, and one of the men threw a brick that broke the passenger window of his truck. He drove home after the encounter, borrowed his roommate’s gun, and returned to the scene. He admitted firing five shots during the incident. He told police he saw the same men who were there a few minutes earlier, but he was shooting at the trucks, not the men.
Miranda v. Arizona (1966) 384 U.S. 436.
B. Relevant Jury Instructions and Argument
The jury was instructed that if it acquitted defendant of the offenses charged in counts 9 through 12 (malicious discharge of a firearm from a motor vehicle at Bartelome Ramirez, Manuel Ramirez, Castro Dominquez, and Gustavo Navarette), it could find him guilty of the lesser included offense of shooting from a motor vehicle under section 12034, subdivision (d). The jury was instructed as follows on the lesser included offense: “To prove that the defendant is guilty of this crime, the People must prove that the defendant willfully and maliciously shot a firearm from a motor vehicle. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, defraud, annoy or injure someone else.”
The crime of malicious discharge of a firearm from a motor vehicle, section 12034, subdivision (c), is defined as follows: “Any person who willfully and maliciously discharges a firearm from a motor vehicle at another person other than an occupant of a motor vehicle is guilty of a felony punishable by imprisonment in state prison for three, five, or seven years.” (Italics added.) The lesser included offense of shooting from a motor vehicle is defined in section 12034, subdivision (d), in relevant part as follows: “[A]ny person who willfully and maliciously discharges a firearm from a motor vehicle is guilty of a public offense punishable by imprisonment in the county jail for not more than one year or in the state prison.”
The jury was instructed pursuant to CALCRIM No. 3515 to “consider each count separately and return a separate verdict for each one.” For counts 9 through 12, the jury received four separate pairs of verdict forms addressing the lesser included offense under each count as follows: “We, the jury in the above-entitled cause, find the defendant, Ricardo Perez Lucatero, [guilty or not guilty], of discharge of a firearm from a vehicle, in violation of Penal Code Section 12034[, subdivision] (d), a lesser included offense of Penal Code Section 12034[, subdivision] (c), as alleged in Count [9, 10, 11, or 12] of the Information filed herein.”
In closing argument, the prosecutor asserted that even if defendant’s actions were directed toward Bartelome, they constituted crimes against all four of the victims. The prosecutor pointed out that defendant placed his truck in a position to shoot past the vehicles to where the men were sitting, rather than in a position to shoot out the windows of the vehicles. Defense counsel argued defendant was not guilty of the charged offenses but conceded he was guilty of the lesser included offense of “firing a gun from a truck.” According to counsel, defendant was “guilty of shooting from the vehicle but not at a person. He shot at no one[, ] only the cars.”
C. Verdicts, Sentencing, and Appeal
The jury convicted defendant on counts 9 through 12 of the lesser included offense of discharging a firearm from a motor vehicle, and on count 13 of falsely identifying himself to a police officer. Defendant was acquitted of all other charges.
Before sentencing, defendant requested that the court strike three of his four convictions for discharge of a firearm from a vehicle, rather than stay them under section 654. The trial court denied this request. It sentenced defendant to the middle term of two years on count 9, with a concurrent six-month county jail term on count 13 deemed served, and stayed sentencing on counts 10 through 12 under section 654. This timely appeal followed.
Section 654 provides in relevant part: “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.” (§ 654, subd. (a).)
II. DISCUSSION
Defendant contends three of his four convictions for the lesser included offense of discharging a firearm from a motor vehicle must be reversed because they all arose from the same act of firing a gun from his vehicle. According to defendant, these three convictions violate the double jeopardy provisions of the Fifth Amendment and article I, section 15 of the California Constitution.
Section 954 states: “An accusatory pleading may charge... different statements of the same offense” and “the defendant may be convicted of any number of the offenses charged.” Thus, the general rule in California is “[a] single act or course of conduct by a defendant can lead to convictions ‘of any number of the offenses charged.’ ” (People v. Montoya (2004) 33 Cal.4th 1031, 1099, quoting § 954, italics omitted.) The Supreme Court has recognized that a tension exists between section 954, which allows multiple convictions for a single act, and section 654, which prohibits multiple punishments for the same act. (People v. Ortega (1998) 19 Cal.4th 686, 692 (Ortega), disapproved on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228–1229.) The tension is resolved, generally, by permitting “multiple convictions on counts that arise from a single act or course of conduct-[while] avoid[ing] multiple punishment, by staying execution of sentence on all but one of those convictions.” (Ortega, at p. 692.) That was the approach the trial court took in this case.
One judicially recognized exception to the general rule permitting multiple convictions is that “ ‘multiple convictions may not be based on necessarily included offenses.’ ” (Ortega, supra, 19 Cal.4th at p. 692, quoting People v. Pearson (1986) 42 Cal.3d 351, 355, italics omitted.) For example, People v. Greer (1947) 30 Cal.2d 589 (Greer), overruled on another ground in People v. Fields (1996) 13 Cal.4th 289, 308, footnote 6, held that a defendant who commits a battery may not be convicted of both battery and assault. (Greer, at pp. 595–560.) But as stated in Ortega: “In contrast, a defendant properly may be convicted of two offenses if neither offense is necessarily included in the other, even though under section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct.” (Id. at p. 693.) Contrary to defendant’s suggestion, the Greer rule barring conviction of nestled offenses is not applicable here because the offense of discharging a weapon from a motor vehicle is not a “lesser included” of the same offense.
Defendant also cites cases holding that multiple convictions are not permitted when a defendant’s act affects only one person, and only one statute is involved. Thus, in People v. Craig (1941) 17 Cal.2d 453 (Craig), the defendant was convicted of both forcible and statutory rape based on a single act of intercourse. (Id. at p. 454.) The Supreme Court consolidated the two judgments of conviction into a single judgment, on the grounds that no more than one conviction for the commission of a single act was permissible unless “the one act or transaction either injured or affected two or more victims or ran counter to two or more separate and distinct statutes defining different crimes with variable elements.” (Id. at p. 458; see also People v. Stephens (1889) 79 Cal. 428 [successive prosecutions against the same defendant for separate libelous statements contained in one newspaper article violate double jeopardy because one “criminal offense... cannot be split up and prosecuted in parts”].) In this case, Craig does not apply because defendant committed multiple criminal acts affecting two or more victims.
The issue of when multiple counts may properly be alleged under a single statute was addressed in Wilkoff v. Superior Court (1985) 38 Cal.3d 345 (Wilkoff). In holding that one instance of drunk driving was only chargeable as one count of drunk driving even if more than one person was injured thereby, Wilkoff noted that “a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute-the gravamen of the offense-has been committed more than once.” (Id. at p. 349.) Wilkoff distinguished between drunk driving, where the actus reus is the act of driving on a public highway while intoxicated, from vehicular manslaughter where the actus reus is the killing of a human being. In the latter case, a defendant may be prosecuted for each homicide committed in the course of a single driving incident, but in the case of drunk driving, the offense is committed only once even if multiple persons are injured. (Id. at pp. 348–349.) Put another way, “[a] defendant may properly be convicted of multiple counts for multiple victims of a single criminal act... where the act prohibited by the statute is centrally an ‘act of violence against the person.’ ” (Id. at p. 351, quoting Neal v. State of California (1960) 55 Cal.2d 11, 20 (Neal).)
In People v. McFarland (1989) 47 Cal.3d 798, the Supreme Court impliedly limited Wilkoff by construing it as relying on evidence the Legislature intended only one violation of the drunk driving statute to be chargeable regardless of the number of persons injured. (McFarland, at pp. 802, 804, citing Wilkoff, supra, 38 Cal.3d at p. 353.)
Neal did not involve the question of when multiple convictions for the same offense are permissible, but whether the defendant could be sentenced consecutively under section 654 for two attempted murder convictions arising from the same act of arson. (Neal, supra, 55 Cal.2d at p. 20 .) Neal held that section 654 should be construed to ensure punishment commensurate with a defendant’s criminal culpability: “The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.” (Neal, at p. 20, italics added.) On that rationale, Neal construed section 654 to allow the defendant to be sentenced to consecutive terms for attempting to murder two victims with a single criminal act. (Neal, at pp. 20–21.)
Neal and the case law applying its principles were analyzed in People v. Hall (2000) 83 Cal.App.4th 1084 (Hall). Two cases discussed in Hall seem particularly relevant here. People v. Cruz (1995) 38 Cal.App.4th 427 held that separate sentences could be imposed for assault with a firearm and the discharge of a firearm at an occupied building, where four bullets were fired at a doorway where a security officer and others stood. As explained in Hall, “[t]he crime of discharging a firearm at an occupied building, by its very definition, requires that the defendant ‘maliciously and willfully discharge a firearm at an... occupied building’ (§ 246...), thereby constituting an act of violence that is committed either ‘with the intent to harm... or by means likely to cause harm’ to one or more persons.” (Hall, at p. 1090, italics omitted.) Similarly, multiple punishments were allowed in People v. Masters (1987) 195 Cal.App.3d 1124, where the defendant shot four or five shots at a vehicle carrying three people, one of whom was hit. (Id. at p. 1127.) Hall explains Masters’s holding as follows: “[D]ischarging a firearm at an occupied vehicle... requires that the defendant ‘maliciously and willfully discharge a firearm at an... occupied motor vehicle’ [citation]; thus, the crime, as defined, is likely to cause harm to the occupants.” (Hall, at pp. 1094–1095; see also People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1736–1737 [§ 654 does not bar multiple punishments for attempted murder and discharging a firearm at an occupied vehicle because the defendant’s actions were likely to harm all three occupants of the vehicle].)
Defendant’s convictions here were for “willfully and maliciously discharg[ing] a firearm from a motor vehicle.” (§ 12034, subd. (d).) Even if-as the jury impliedly found-none of the shots were fired at a person, the shooting was nonetheless “an act of violence” done either with the “intent to harm more than one personor by a means likely to cause harm to several persons.” (Neal, supra, 55 Cal.2d at p. 20.) Defendant admitted discharging his weapon four or five times. He knew the men he had argued with earlier were present in a confined space and knew firing five shots in their immediate vicinity would, at a minimum, put them in fear for their lives and cause damage to their vehicles. We see no distinction between section 12034, subdivision (d) and the offenses proscribed by section 246. In both cases, the act prohibited by the statute is “centrally an ‘act of violence against the person.’ ” (Wilkoff, supra, 38 Cal.3d at p. 351.) Moreover, each gunshot posed a separate risk to persons and constituted a separate volitional, criminal act. The firing of a volley of shots, by its nature, increases the likelihood of causing harm to more than one person. To depart from the general rule allowing multiple convictions by reducing the jury’s separate guilty verdicts to a single conviction on this record, as defendant requests, would give defendant a windfall.
We acknowledge cases holding the offense of brandishing a weapon (§ 417) is not an “act of violence” that involves an intent to harm or likelihood of harming any person under Neal and Wilkoff. (See Hall, supra, 83 Cal.App.4th at pp. 1091–1095; In re Peter F. (2005) 132 Cal.App.4th 877.) On other hand, the crime of making a terrorist threat (§ 422) has been held to be an act of violence coming under the multiple victim exception to section 654 even though no actual violence takes place. (People v. Solis (2001) 90 Cal.App.4th 1002, 1023–1025.) In our view, the willful, malicious discharge of a loaded weapon is inherently more violent than brandishing a weapon or making a verbal threat. Brandishing a gun does not even require that the gun be loaded. (§ 417, subds. (a)(2), (c).) In contrast, discharging a firearm by its very nature creates a substantial risk of death or serious injury to any persons within range of the shooter, whether the shooter is specifically aiming at such persons or not.
III. DISPOSITION
The judgment is affirmed.
We concur: Dondero, J.Banke, J.