Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050616201
NEEDHAM, J.
Edmundo Adaylton Martell appeals from a judgment sentencing him to state prison for six years after a jury convicted him of assault with a semiautomatic firearm with a firearm use enhancement (Pen. Code, §§ 245, subd. (b), 12022.5, subd. (a), count one), shooting from a motor vehicle (§ 12034, subd. (c), count two), and grossly negligent discharge of a firearm (§ 246.3, count three). He contends the judgment must be reversed because (1) the court lacked good cause to dismiss two jurors during deliberations, improperly accepted a partial verdict on the section 246.3 count after the two jurors had been dismissed, and permitted the reconstituted jury to deliberate on the remaining counts after accepting the partial verdict; (2) evidence of a prior arrest for brandishing a weapon should not have been admitted and the instructions given on that evidence were incomplete and misleading; (3) the prosecutor committed prejudicial misconduct; (4) the court erred in denying a motion to disclose police personnel records of the victim of the prior brandishing incident; and (5) defense counsel was ineffective in failing to object to instances of prosecutorial misconduct and in failing to move for a mistrial. In addition to the issues raised by appellant, we requested and received supplemental briefing as to whether the trial court’s failure to impose the firearm enhancement under section 12022.5, subdivision (a) amounts to an unauthorized sentence.
Further statutory references are to the Penal Code unless otherwise indicated.
We conclude that appellant’s conviction of section 246.3 must be reversed because the guilty verdict on that count was returned by the original jury after two of its jurors had been excused for cause. We also conclude that the original sentence was unauthorized because the court failed to impose the firearm enhancement. We reject appellant’s other claims, affirm the judgment on the remaining counts, and remand the case for further proceedings.
I. FACTS
Marcus Carswell worked as a security guard at an apartment complex in Richmond. On November 4, 2006, at about 11:30 at night, he left work and was driving down the Richmond Parkway when a truck twice moved into his lane and forced him to swerve to avoid a collision. The truck pulled into a gas station and Carswell followed in his car. Carswell intended to tell the driver of the truck, “If I cut you off that was an accident, but the way you were driving was crazy.”
Carswell pulled up next to the truck at the station, but the truck pulled forward, partially blocking his car. The truck continued forward and parked parallel to the station’s food mart. Carswell parked his car, got out and took a few steps toward the truck. Appellant, its sole occupant, was sitting in the driver’s seat. Carswell apologized for cutting him off but said the way he was driving was crazy.
According to Carswell, he held his hands at his side while he approached appellant and was not carrying a weapon. He did not use racial slurs or threaten appellant. Carswell noticed that appellant was shaking, so Carswell extended his hands out with his palms open to show he was not holding anything. Appellant told him, “Stop or I’ll shoot,” and fired a shot that hit Carswell’s foot. The bullet fractured and produced two holes in Carswell’s left shoe, striking the area of his arch and inside ankle.
Carswell yelled that appellant had shot him in the foot and appellant responded by saying, “I’ll shoot you in the chest.” Carswell got back into his car at appellant’s direction and appellant pulled his truck up so his driver’s side door was next to Carswell’s. He threatened to shoot Carswell in the chest and told him to put his hands on the steering wheel, sounding nervous but angry. Carswell complied and after repeating several more times his threat to shoot Carswell in the chest, appellant drove away.
Michael Inductivo was purchasing gas at the station and saw the car driven by Carswell pull in, followed by a truck with the engine “revved up.” Carswell got out of his car and spoke to appellant, the man in the truck. Carswell did not appear to threaten appellant and did not have anything in his hands. Inductivo heard appellant tell Carswell many times to get back in his car, after which he produced a gun, pointed it out the window, and fired one shot at Carswell. Carswell said, “You shot me” two or three times and appellant told him to get back in his car. Carswell did so and appellant drove away at a high speed. Inductivo wrote down appellant’s license plate number and provided it to the police when they responded; he later identified appellant and his truck.
Shortly after appellant drove away from the gas station, Officer Richer of the San Pablo Police Department saw a pick-up truck parked near a dumpster in a shopping complex that matched the description of the truck involved in the shooting. Appellant got out of the truck and approached the dumpster. Richer detained appellant, and a gun and gun case were discovered inside the dumpster. It was a Ruger.45-caliber semiautomatic weapon in working condition with six live bullets that had not yet been chambered.
Appellant testified that shortly before the shooting, he had been driving his truck on the Richmond Parkway on his way to the gym when Carswell’s car swerved toward him twice. He pulled into the gas station after Carswell began tailgating him, hoping Carswell would continue on his way. Instead, Carswell followed him, got out of his car, walked toward him, and said, “Nigger, you almost hit me back there.” Carswell was holding a screwdriver in his right hand. Appellant felt vulnerable and could not put his truck in gear to pull away because he was shaking. He knew from the tone of his voice that Carswell was not there to apologize, and as he came closer, Carswell’s tone was more aggressive and he used profanity. Appellant told him he had a gun, but Carswell was not deterred. Appellant retrieved his gun from his lockbox, loaded a magazine, and shot it at the ground. Carswell said he had been shot in the foot, and appellant told him to get in his car because he didn’t want any surprises. Appellant drove away after telling Carswell not to follow him. Worried that no one would believe him about what had happened, appellant put his gun in a dumpster, but then later went back to retrieve it because he was worried someone might get hold of it. At that point he was detained by police.
II. DISCUSSION
A. Discharge of Jurors and Acceptance of Partial Verdict
Appellant contends the trial court violated his rights under the federal and state constitutions when it dismissed two deliberating jurors without good cause and accepted a partial verdict after the discharge of those jurors. We conclude the trial court’s decision to dismiss the two jurors was supported by good cause and that verdicts were properly reached by the reconstituted jury on two of the counts after two alternates were seated. We agree with the defendant that the partial verdict on the remaining count must be vacated because it was returned by the original twelve jurors after the two jurors were dismissed for good cause.
1. Proceedings During Deliberations
Jury deliberations began on the morning of Thursday, May 17, 2007. At about 4:00 p.m. on Friday, May 18, 2007, the jurors sent the following note to the trial court: “We have a situation with two jury members that have commitments on Monday and will not be here. Do we have options? [Juror No. 3] has a commitment in SoCal Monday—room reservations with court date on Tuesday. [¶] [Juror No. 12] has her graduation ceremony on Monday.”
The court sent the note back to the jury with the following written response: “We can stay until 5:00 tonight. What time is graduation for [Juror 12]? What is court date for with regard to [Juror 3]?” Juror 3 replied by writing at the bottom of the note, “My wife and I are driving to Orange [County] for a Tuesday court date involving our daughter and granddaughter—custody/visitation and other significant issues. My wife and I are advancing funds for the case and have a significant, direct concern regarding our granddaughter’s welfare. I stated during jury selection (while in Seat # 15, I believe) that I would have a conflict if this trial went beyond this week.” Juror No. 12 also responded in writing, explaining, “I have to line up at 1 pm at [the] latest, also need driving and parking time.” Both jurors had mentioned these issues during voir dire, although Juror 3 had not indicated he needed travel time and would be unavailable for two full days.
The prosecutor took the position that the two jurors should be discharged, but defense counsel objected, proposing that the jury instead deliberate Monday morning and then recess until they could return. The court rejected defense counsel’s proposal, noting that both jurors had mentioned their prior commitments during voir dire and that the trial had taken longer than expected. “It is [a] quarter to five. I will—I’m going to call the jury back in. I’m going to find good cause for both of these people to be relieved Monday morning.”
At 4:43 p.m., the court summoned the jury into the courtroom and asked the foreperson whether it was likely the jury would reach a verdict in the next 15 minutes. Advised that was unlikely, the court stated, “Okay. Then the court is finding that there is good cause for (Juror No. 12) and (Juror No. 3) to be relieved of their service. We will contact the two alternates and have them here 8:30 Monday morning. [¶] I need to instruct a little bit more about what happens when we have alternates, which means that you have to begin your jury deliberations all over again from the beginning because they haven’t been in there. It’s not to say that it has to take as long, but they have to begin with the counts, wherever you’re at, and start again. [¶] So for tonight, (Juror No. 12) and (Juror No. 3), you two do not have to come back Monday. Would you check downstairs with jury services, give them your badges. And for the rest of the jurors, you must not form or express any opinions about the matter until you are once again reconstituted as a jury with the alternates sworn in and substituted in. You must all return, except for the two I’m relieving, Monday morning at 8:30. Do not let anyone speak to you or speak to anyone else about this matter. Okay. I’ll see you all at 8:30 Monday morning.”
The jury left the courtroom and the court went off the record at 4:45 p.m. At 4:54 p.m., the court went back on the record and reconvened the jury in the courtroom after being advised the jury had reached a verdict as to one of the counts. The clerk read the jury’s verdict of guilty as to the third count, discharging a firearm with gross negligence under section 246.3. Defense counsel did not then object to the return of the partial verdict, although she asked the court whether it would be possible to speak to the two jurors who had been excused, since they were now dismissed from service. The court admonished counsel not to do so.
The alternates were sworn and seated the following Monday morning and the court gave the following admonition: “Two of your fellow jurors have been excused and alternate jurors have been selected to join the jury. Do not consider the substitution for any purpose or reason. The alternate jurors must participate fully in the deliberations that lead to any verdict. The People and the defendant have the right to a verdict reached only after full participation of the jurors whose votes determine that verdict. This right will be assured if you begin your deliberations again from the beginning. Therefore, you must set aside and disregard all past deliberations regarding the remaining counts and begin your deliberations all over again. Each of you must disregard the earlier deliberations and decide this case as if those earlier deliberations had not taken place. [¶] Now, in this case there are two counts left remaining. The third count we have a verdict on. So you will return to the jury room and start your deliberations from the beginning with regard to Count One and Count Two.” The reconstituted jury commenced deliberations.
At that point, defense counsel objected to the taking of the partial verdict on count three. She explained, “... I’m objecting to allowing the partial verdict to come in, especially when we have two new alternat[es] because the self-defense is back on the table. And I don’t think those two individuals could have brought a new perspective or shed a new light on that defense. And as a consequence, by allowing the verdict to come in as a consequence, the self-defense is no longer available, and so that—for that—for that one count, for Count Three. So I object on those grounds.” The court rejected this argument, stating that in its view, the jury as reconstituted could still consider self-defense. The reconstituted jury returned guilty verdicts on the remaining counts that afternoon.
2. Dismissal of Two Jurors for Good Cause Under Section 1089
Appellant argues that the judgment must be reversed because the trial court lacked good cause to remove Jurors 3 and 12 and replace them with alternates. We disagree.
Penal Code section 1089 provides in relevant part, “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate....” The substitution of an alternate juror after deliberations have begun is constitutionally permissible, so long as the reconstituted jury is instructed to begin its deliberations anew. (People v. Collins (1976) 17 Cal.3d 687, 693-694.)
The decision to discharge a juror for good cause rests within the sound discretion of the trial court. (People v. Smith (2005) 35 Cal.4th 334, 348.) A court does not abuse this discretion merely because another course of action may have been available to the trial judge. (People v. Bell (1998) 61 Cal.App.4th 282, 288-289 (Bell).) Though the trial court has an affirmative obligation to investigate the circumstances that might support the discharge of a juror, the scope of any such investigation is within the sound discretion of the trial court. (People v. Bonilla (2007) 41 Cal.4th 313, 350.) On appeal, we review the trial court’s decision for abuse of discretion, and will uphold the decision when the evidence supporting it appears in the record as a “demonstrable reality.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052-1053.)
A juror’s personal obligations may constitute good cause to be excused under section 1089. Caring for a sick or injured family member “surely constitutes good cause” (Bell, supra, 61 Cal.App.4th at p. 289; see also People v. Hall (1979) 95 Cal.App.3d 299, 307), as does an impending move out of state (People v. Green (1971) 15 Cal.App.3d 524, 529) or anxiety over a job-related issue that could affect deliberations (People v. Fudge (1994) 7 Cal.4th 1075, 1098). The trial court did not abuse its discretion when it found good cause to excuse Juror 12 so she could attend her own college graduation, a once-in-a-lifetime, milestone event. Nor did it abuse its discretion in excusing Juror 3 so he could attend a hearing where the custody of his granddaughter would be determined. The court could quite reasonably infer that those jurors would not be able to perform their duties if preoccupied by their inability to participate in these very important activities.
Appellant contends the deliberations should have been postponed to allow Jurors 3 and 12 to complete their personal business and return to court. This was not required. (See Bell, supra, 61 Cal.App.4th at pp. 288-289 [proper to dismiss juror who had to take child to the doctor, even though juror anticipated he could return by the afternoon]; Hall, supra, 95 Cal.App.3d at pp. 305-306 [juror had to take wife to medical appointments and could not attend one day of deliberations].) Though the two jurors could in theory have returned on the following Wednesday, this would have delayed the resolution of a criminal trial that had already taken longer than anticipated. A delay of deliberations would have increased the risk that other scheduling conflicts would arise, and the court could reasonably conclude that the better course was to substitute two alternate jurors and allow the deliberations to begin again.
3. Partial Verdict on Count Three After Discharge of Two Jurors
Appellant contends he was deprived of his right to a unanimous verdict by 12 jurors on count three (negligently discharging a firearm) because the partial verdict on that count was returned after Jurors 3 and 12 had been excused. The People respond that there was no error because the verdict was returned just before the close of business on Friday afternoon, and the discharge of the two jurors was not effective until the following Monday, when the alternates were to be seated in their stead.
We agree with appellant that the discharge of the two jurors was effective on Friday afternoon, immediately after the court informed the jury that Jurors 3 and 12 were excused and that deliberations would proceed with alternate jurors the following Monday morning. Though the court had advised counsel outside the jury’s presence that it was finding good cause for the two jurors “to be relieved Monday morning,” when it addressed the jury directly, it instructed the two excused jurors to turn in their badges and continued, “... for the rest of the jurors, you must not form or express any opinions about the matter until you are once again reconstituted as a jury with the alternates sworn in and substituted in.” As of that moment, the twelve people in the room were no longer a fully constituted jury. The jury had no authority to continue its deliberations, however briefly, and the verdict it purported to return on count three was without effect.
We reject any suggestion that defense counsel forfeited a challenge to the partial verdict on this ground by failing to make a contemporaneous objection. The verdict rendered was, in effect, a verdict by less than twelve jurors, the number guaranteed a criminal defendant under the California Constitution. (Cal. Const., art. I, § 16.) A defendant must personally and expressly consent to a verdict by less than 12 jurors. (People v. Compton (1971) 6 Cal.3d 55, 61; People v. Ames (1975) 52 Cal.App.3d 389, 391-392; People v. Loving (1977) 67 Cal.App.3d Supp. 12, 16.) No waiver from appellant was elicited in this case. The conviction on count three must be reversed.
Given our resolution of this issue, we need not discuss appellant’s claims that count three must be reversed because the jury committed misconduct by continuing their deliberations. Nor do we address his argument that the partial verdict was a response to an impermissible “dynamite” instruction designed to “blast” a verdict from a deadlocked jury. (See People v. Gainer (1977) 19 Cal.3d 835, 852.)
4. Effect of Partial Verdict on Further Deliberations on Counts One and Two
Appellant contends the guilty verdicts on the remaining two counts by the reconstituted jury were tainted by the partial verdict of guilty on count three. He observes that the three counts were based on the same underlying facts, and that his self-defense claim was common to all. Appellant reasons that once the original jurors determined that he was not acting in self-defense with respect to count three, they could not be expected to consider anew the question of whether he had acted in self-defense as to the remaining two counts. In effect, appellant argues that under the specific circumstances of his case, the ten original jurors could not be expected to follow the trial court’s instruction to begin their deliberations anew and disregard their prior deliberations.
This claim has been forfeited by the lack of any defense objection to the continuing deliberations on counts one and two. (People v. Fudge, supra, 7 Cal.4th at pp. 1100-1101.) Although defense counsel objected to the court’s decision to excuse Jurors 3 and 12 for good cause, and belatedly objected to the acceptance of the partial verdict on count three, she did not complain that the newly formed jury was biased or otherwise incapable of continuing deliberations.
Even if we construe counsel’s belated objection to the partial verdict as an objection to the continuing deliberations on the remaining counts, we would reject appellant’s claim on the merits. As appellant acknowledges, the only two published cases in California to directly consider the issue have concluded that a jury reconstituted with properly-seated alternates may deliberate on any remaining counts after a partial verdict has been rendered by the original jurors. (People v. Thomas (1990) 218 Cal.App.3d 1477, 1485-1488 (Thomas); People v. Aikens (1988) 207 Cal.App.3d 209, 211-212 (Aikens).) “Defendant... insists that there is an inherent coercive effect upon an alternate juror who joins a jury that has, as in this case, already considered several of the charges and rendered partial verdicts. That argument rests on the assumption that both the regular jurors and the alternates alike will ignore the admonition to set aside their prior findings and begin deliberations anew. Absent evidence to the contrary, however, we presume that ‘juries made aware of the rights involved will faithfully follow such instructions.’ ” (Thomas, supra, 218 Cal.App.3d at p. 1487.)
A different result was reached by the New Jersey Supreme Court in State v. Corsaro (1987) 107 N.J. 339 [526 A.2d 1046] (Corsaro), which concluded “where the deliberative process has progressed for such a length of time or to such a degree that it is strongly inferable that the jury has made actual fact-findings or made determinations of guilt or innocence, the new juror is likely to be confronted with closed or closing minds.” (526 A.2d at p. 1054.) The reasoning of Corsaro was rejected by Aikens, supra, 207 Cal.App.3d at p. 213 as “superficial, unpersuasive and too mechanistic.”
We reject appellant’s suggestion that the reconstituted jury must have failed to begin deliberations anew because it reached a verdict on the remaining charges in less than a day. The facts of the case and the law to be applied were relatively straightforward. The original jury deliberated for almost two days before reaching a purported (though invalid) verdict as to count three. The reconstituted jury deliberated for about five hours before reaching a verdict as to the remaining two counts. This is not such a disparity as to suggest the reconstituted jury disregarded the court’s instruction and relied on prior deliberations when reaching a verdict.
Taking a slightly different approach to the same issue, appellant suggests that we may presume the reconstituted jury did not follow instructions because it was composed in part of the ten original jurors who briefly continued deliberations and returned a verdict after Jurors 3 and 12 were excused. Appellant argues that the return of the partial verdict amounted to juror misconduct because it reflected a failure to follow the court’s instructions, and that from this misconduct, we must presume prejudice. (People v. Leonard (2007) 40 Cal.4th 1370, 1425 (Leonard).)
Assuming the original jurors committed misconduct by resuming deliberations and returning the partial verdict after Jurors 3 and 12 had been dismissed, there is no connection between the returning of the partial verdict on count three and the deliberations of the reconstituted jury on counts one and two. The presumption of prejudice that arises from juror misconduct “ ‘may be rebutted... by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.’ ” (Leonard, supra, 40 Cal.4th at p. 1425.) The reconstituted jury was properly sworn and admonished to conduct their deliberations from the beginning as to the two remaining counts. This rebuts any presumption of prejudice that might arise from the return of the partial verdict.
B. Evidence of 2005 Arrest for Brandishing a Weapon
Appellant argues the trial court erred in admitting evidence of his arrest for brandishing a firearm in 2005. We disagree that reversal is required.
1. Proceedings Below
Defense counsel filed an in limine motion seeking to exclude evidence of his 2005 arrest for brandishing as irrelevant and unduly prejudicial under Evidence Code section 352. The prosecutor argued that the evidence of the conduct underlying that arrest was admissible under Evidence Code section 1101, subdivision (b) to prove, among other things, knowledge, intent and absence of mistake. In her offer of proof, the prosecutor described the incident as follows: “[T]he defendant was driving a vehicle next to or near a retired Richmond police officer. Both men are driving on the road when the defendant is weaving in and out, pulls alongside of the retired officer, yelling. It’s clear road rage pretty much is going on to the point the officer rolls down his window and yells to the defendant, ‘If you want to discuss this matter, pull over.’ And the two men pull over in front of a leasing office in Richmond. The retired officer comes out of his vehicle and walks toward the defendant, and the defendant has a gun in his hand and points it at the officer at this point. And remind you, he’s a retired officer, so he’s not in uniform, not in a police vehicle. The defendant points a gun at him. Our victim, the retired officer says, ‘Put that away, I am an officer.’ He lets the defendant know exactly who he is and what, you know, what’s going on. And at that point, the defendant puts the gun down; he is detained; officers arrive; and he’s arrested.” The prosecutor additionally advised the court that she had subpoenaed both arresting officers and would only call one of them as a witness.
Having heard this offer of proof, the trial court ruled that the evidence of the 2005 incident was “extremely probative” of appellant’s intent at the time of the charged offenses and his claim of self-defense. It rejected defense counsel’s argument that the prior incident, even if relevant, was more prejudicial than probative under Evidence Code section 352.
During the trial, the prosecutor called Officer Simmons of the Richmond Police Department to testify about the prior incident. According to Simmons, on July 14, 2005, he responded to a call outside an apartment complex on the Richmond Parkway and found appellant and recently-retired police officer Washington on the scene. Simmons testified that he detained appellant after Washington shouted at Simmons that appellant had a gun. The court overruled defense counsel’s hearsay objection and explained to the jury that Washington’s statement about the gun was admitted for the limited purpose of explaining why Simmons detained appellant and could not be considered to prove that appellant actually had a gun. Simmons searched appellant’s car and found an unloaded semiautomatic gun and a magazine of ammunition.
The prosecutor questioned appellant about the 2005 incident during her cross-examination of him. Appellant explained that Washington and another companion (apparently Washington’s son, who was with him in the car) chased appellant until he stopped his car. Appellant testified that Washington got out of his car and “got me out of my car,” at which time appellant pointed the gun at Washington. Appellant then corrected himself and said he pointed his gun at the ground and thought that Washington had a gun in his car.
The jury was instructed with CALCRIM No. 375 regarding the effect of the prior incident: “The People presented evidence of other conduct by the defendant. For example, they presented evidence that the defendant might have brandished a weapon in July of 2005. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed that uncharged act. [¶] A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged act, you may, but are not required, to consider that evidence for the limited purpose of deciding intent, whether the defendant acted with the intent to willfully and unlawfully assault another with a deadly weapon, or for purposes of motive that the defendant had a motive to commit the alleged offense in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged act and the charged offenses here. Do not consider this evidence for any other purpose except for the limited purpose of intent and motive and determining the defendant’s credibility. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crimes. If you conclude that the defendant committed the uncharged acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crimes he is charged with here. The People must still prove each element of every charge beyond a reasonable doubt.”
The prosecutor referred to the 2005 incident during closing argument: “In 2005, defendant was driving again, same truck. An off-duty Richmond police officer was in his car, swerving, words are exchanged, and they both pull over. Sound somewhat familiar? And yet again, the defendant goes for his gun. And yet again, he points it at another man. You can consider that. You can consider that he carries a loaded gun in day and in night.” Defense counsel objected on the ground that this evidence had been admitted for a limited purpose only and the court admonished the jury that it was the judge of what evidence had been presented. Defense counsel discussed the evidence in her own closing argument: “ ‘Well, what about that July 2005 incident?’ What incident? That’s an interesting incident. She puts an officer on the stand who saw absolutely nothing. Shows up to take a police report or make an arrest. She didn’t put Washington on the stand, the alleged victim. She puts this other officer on the stand, who through hearsay and an exception to hearsay – what’s hearsay? He said, she said – says, ‘I responded to a gun, brandishing a gun in a road rage incident.’ He had no idea that there was road rage. And, in fact, the Judge gave a limiting instruction saying you can’t consider what the officer says as evidence because it’s hearsay. [Appellant] never had an opportunity to cross-examine Officer Washington. It’s not evidence. There’s no evidence before this jury that there was road rage. She hasn’t met her burden.”
2. Analysis
Evidence of a defendant’s prior crime or bad act is generally inadmissible to prove a defendant’s bad character or propensity to commit the charged offense. (Evid. Code, § 1101, subd. (a).) Such evidence may be admissible when relevant to prove some relevant fact other than criminal propensity, such as intent, motive, identity or the absence of mistake or accident. (Evid. Code, § 1101, subd. (b).) A court’s decision to admit other crimes evidence is reviewed for abuse of discretion. (People v. Ewoldt (1994) 7 Cal.4th 380, 405 (Ewoldt).) Even when relevant, such evidence may be excluded as more prejudicial than probative under Evidence Code section 352, a determination we similarly review for abuse of discretion. (Ewoldt, at pp. 405-406.)
Evidence that appellant had pointed a gun at another individual a year before was relevant to his claim of self-defense on the charged offenses, because it tended to show that he was more likely to have pointed the gun in anger than in fear. The trial court did not abuse its discretion when it admitted the evidence on the issue of appellant’s intent and motive and concluded it was probative and not unduly prejudicial under Evidence Code section 352.
Appellant argues that the trial court should not have admitted evidence of the 2005 incident based on the prosecution’s pretrial offer of proof, because it was apparent that the only evidence the prosecutor intended to produce was inadmissible hearsay by one of the officers who arrested appellant in 2005. (See People v. Wheeler (1992) 4 Cal.4th 284, 297-298.) We disagree. The prosecutor stated in her offer of proof that she would be calling one of the arresting officers as a witness, but she did not specify the facts to which that arresting officer would testify. As far as the trial court was concerned at that point, the officer might have personally observed some of the conduct leading to the arrest, or he might have described admissions that appellant made at the scene when interviewed. (See Evid. Code, § 1220.) When the arresting officer’s testimony was actually introduced, and it was apparent that his knowledge of the underlying incident was based exclusively on what Washington, the alleged victim, had told him, the court properly excluded evidence of statements by Washington to that officer for the purpose of proving the truth of the matter asserted, but allowed it for the limited purpose of explaining the officer’s conduct. The court did not allow the prosecutor to elicit any inadmissible hearsay evidence on this subject.
Appellant complains that because the prosecutor failed to produce a witness who could testify about what happened during the 2005 incident, the court should have stricken the nonhearsay evidence about that incident (consisting primarily of Officer Simmons’s testimony that he arrested appellant and found a gun when he searched his truck). It is true that this evidence, standing alone, did little more than demonstrate that appellant routinely carried a gun with him. But this was not the only evidence of the 2005 incident. Appellant testified during cross-examination that he pointed a gun at Washington. Though he claimed to have been chased and threatened by Washington and to have acted in self-defense, the jury was entitled to consider appellant’s credibility on this point and determine whether appellant was himself the aggressor in 2005.
Appellant argues that the court erred in giving CALCRIM No. 375 because the evidence was insufficient to establish the offense of brandishing a weapon under section 417. Appellant’s testimony about the prior incident and Officer Simmons’s testimony about finding a gun during a search of appellant’s truck supports an inference that appellant committed a prior bad act relevant to his intent in the instant case, regardless of whether the prosecution proved each and every element of the crime of brandishing under section 417. The limiting instruction accurately stated the law and was beneficial to appellant because it advised the jury of the limited purpose for which the evidence about the 2005 incident could be considered. It also emphasized that appellant’s commission of the prior act did not establish his guilt of the charged offenses. The jury was instructed with CALCRIM No. 375 that if the prosecution did not meet its burden of proof with respect to the prior offense, it “must disregard this evidence entirely.”
Appellant argues that the instruction on the 2005 incident was misleading because it did not specifically advise the jury that the incident did not amount to a criminal act if appellant was acting in self-defense. We are not persuaded. The jurors were instructed that if appellant brandished a weapon during the prior incident, they were permitted (but not required) to consider that evidence for the limited purpose of determining his intent and motive with respect to the charged crimes. But if they believed he acted in self-defense during the prior incident, they surely would not have found that incident to be something suggesting a criminal intent or lack of self-defense in the current case. There is no reasonable probability the jury applied the instruction in an impermissible way and it is not reasonably probable appellant would have obtained a more favorable verdict if the instructions on self-defense had been specifically linked to the prior incident as well as the current charges. (See Estelle v. McGuire (1991) 502 U.S. 62, 72-73; People v. Clair (1992) 2 Cal.4th 629, 663; People v. Mendoza (2000) 24 Cal.4th 130, 177.)
C. Prosecutorial Misconduct
A prosecutor’s conduct violates the federal Constitution when it is “ ‘ “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) It violates state law when it involves “ ‘ “ ‘the use of deceptive or reprehensible methods to persuade either the court or the jury.’ ” ’ ” (Ibid.) Appellant argues that the prosecutor committed misconduct during her cross-examination of him and during closing argument.
1. Cross-Examination
Appellant testified that the incident leading to the current charges occurred shortly before midnight, while he was on his way to the gym, and that he sometimes went to the gym as late as 2:00 a.m. The prosecutor questioned him about this, stating that the gyms near appellant’s home were closed at that time. Appellant responded that one of the gyms stayed open 24 hours a day. The court overruled an objection by defense counsel that this line of questioning was argumentative.
During a line of questioning about why appellant did not simply drive away when Carswell, the victim of the current offenses, approached him at the gas station, the prosecutor opined, “Okay. So if you’re in a race, someone’s on foot and someone’s in a car, who’s going to win? The car, of course, right? And if someone has a gun and the person is ten feet away and the other person has a screwdriver, which weapon at that moment is more dangerous? The gun, of course, right?” Shortly after, the prosecutor continued, “Okay. And you said on direct that you had no choice but to shoot him. Can I give you some choices? Call for help.” Defense counsel objected to this last remark.
The prosecutor made other similar comments during her questioning of appellant. “And you felt safe because you’re in the big truck with the big gun shooting at people and forcing them to get back in their car. I would feel safe, too.” “So now [Carswell]’s a possible killer. This killer who pulls over at a Chevron station with his hands out and tries to talk to you, he’s a killer. Okay. Okay. That’s good. And the killer has a screwdriver. So let’s say I poke you with a screwdriver or I shoot you with a bullet, isn’t it fair to say that the bullet is a deadly weapon?” “Always the victim. That’s right. Victim again. And in 2005, you’re the victim of road rage, and you pull a gun. And now you’re saying in 2006, you were a victim, and you pulled a gun, so it’s always pulling a gun to defend yourself, right?” When appellant claimed to have pointed the gun at the ground during the 2005 incident and denied pointing the gun at Washington, the prosecutor responded, “You did. And he didn’t have a gun, did he?”
The prosecutor presented no evidence about the hours of operation for the 24 Hour Fitness gyms near appellant’s home, and her comments to the effect that the gym would have been closed when appellant was purportedly on his way to exercise appears to be an improper reference to facts not in evidence. (See People v. Crabtree (2009) 169 Cal.App.4th 1293, 1316.) Nonetheless, the point was a peripheral one, there being no evidence that appellant was on his way to do anything other than exercise. The jury was instructed that it was to base its decision on the evidence presented at trial and that the lawyers’ comments were not evidence. (CALCRIM Nos. 222, 226.) We presume the jury followed these instructions. (See People v. Boyette (2002) 29 Cal.4th 381, 436.)
Nor do the other cited comments during cross-examination amount to prejudicial misconduct. Though a defendant cannot be compelled to testify, when he does take the stand the permissible scope of cross-examination is very wide. (People v. Cooper (1991) 53 Cal.3d 771, 822.) Vigorous questioning designed to test the defendant’s credibility is permissible. (Id. at pp. 822-823.) The prosecutor’s questions, though sometimes snide in tone, were not misleading and did not infect the trial with fundamental unfairness.
2. Closing Argument
Appellant complains about two lines of argument made by the prosecutor during rebuttal. Regarding appellant’s claim that Carswell was carrying a screwdriver when he approached him in the gas station, she stated, “And let’s talk about that supposed screwdriver [Carswell] had. First I ever heard of it was when you did. First I ever heard about it was on Tuesday. And in advance, right now, I will tell you I was mad on Tuesday. And I apologize if some of you thought I was out of line, but I get angry when someone takes the stand and lies.” Later, the prosecutor commented, “When a police officer even goes to a scene, they have their belt. First, they yell; they have mace; they have tasers. The absolute last resort is deadly force. And that’s what the defendant brought to this case.” Appellant claims that in making these arguments, the prosecutor relied on facts not in evidence and improperly implied that he was dishonest.
Evidence was presented at trial that no witness had seen Carswell carrying a screwdriver and that appellant did not mention the screwdriver when he was interviewed by police. It was reasonable for the prosecutor to characterize his testimony as a “lie” under the circumstances. (People v. Sandoval (1992) 4 Cal.4th 155, 180.) To the extent the prosecutor injected facts not in evidence by claiming she had not heard of the screwdriver before appellant testified at trial, the remark was not prejudicial because the jury already had heard evidence of the more damaging fact that appellant had failed to mention the screwdriver to police.
The comments about the escalation of force used by police officers, though technically not in evidence, involved a matter of common knowledge and did not amount to misconduct. (See Hill, supra, 17 Cal.4th at pp. 819, 828.) Moreover, the point the prosecutor was trying to make was that it is unreasonable to shoot another person who poses a threat when less drastic means are available. This is not a controversial idea and could have been permissibly expressed without the police officer analogy.
D. Pitchess/Brady Motion
Washington, the alleged victim in the 2005 incident that was admitted under Evidence Code section 1101, subdivision (b), was a retired Richmond police officer. Before the trial began, appellant brought a motion seeking in camera review of his police personnel records, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and disclosure of exculpatory evidence pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady). The court denied the motion because it believed Pitchess was limited to officers whose testimony pertained to the pending charges. Appellant contends this was error.
Evidence Code sections 1040 through 1047 govern discovery of official police information, including peace officer personnel files. (Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 400 (Davis).) Evidence Code section 1047 prohibits discovery of police department personnel records for officers not involved in the incident giving rise to particular litigation. It provides: “Records of peace officers... including supervisorial peace officers, who either were not present during the arrest or had no contact with the party seeking disclosure from the time of the arrest until the time of booking,... shall not be subject to disclosure.”
Washington was not present during appellant’s arrest on the current charges and had no contact with appellant from the time of his arrest or booking. The plain language of Evidence Code section 1047 barred disclosure of his police personnel records. The case is analogous to the situation in Davis, supra, 24 Cal.App.4th at page 400, which held that Evidence Code section 1047 applied to a retired peace officer functioning as an expert witness who had not been personally involved in the arrest or detention of the plaintiff in an excessive-force case.
Nor can appellant prevail in his argument that the court violated his rights under Brady, supra, 373 U.S. 83 by suppressing evidence about retired officer Washington. “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282.) Appellant made no showing that the prosecution withheld exculpatory or impeachment evidence concerning Washington, much less any showing of prejudice.
E. Ineffective Assistance of Counsel
Appellant contends his trial attorney was ineffective because she failed to move for a mistrial when the jury purported to return a partial verdict on count three following the discharge of two jurors for good cause. Because we have reversed the conviction on count three, we need not consider the argument with respect to that count. We conclude there could be no prejudice as to the remaining counts because, as previously discussed, the original jury’s return of the partial verdict did not infect the reconstituted jury’s deliberations on the remaining counts. There is no reasonable probability the failure to move for a mistrial affected the result of this case when such a motion would have been lacking in merit. (See Strickland v. Washington (1984) 466 U.S. 668, 686; In re Wilson (1992) 3 Cal.4th 945, 950.)
Appellant argues that counsel was also ineffective in failing to object to instances of prosecutorial misconduct during his cross-examination. We have addressed previously the misconduct claims on their merits and need not consider the alternative theory of ineffective assistance of counsel. To the extent appellant argues that relevancy objections should have been lodged to questions concerning his ability to retreat, we disagree because the options available to appellant were relevant to establish the reasonableness of his actions.
F. Sentencing Error
The trial court imposed the six-year middle term sentence for assault with a firearm under section 245, subdivision (b), but struck the accompanying firearm enhancement under section 12022.5, subdivision (a). A firearm enhancement under section 12022.5, subdivision (a) is mandatory, even when the offense to which it attaches is an assault with a firearm, and a trial court lacks the authority to strike such an enhancement. (§ 12022.5, subds. (c) & (d); People v. Thomas (1992) 4 Cal.4th 206, 213; People v. Ledesma (1997) 16 Cal.4th 90, 100-102.) An order striking an enhancement to avoid a mandatory sentencing provision amounts to a legally unauthorized sentence. (See People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7.)
We order the case remanded for resentencing so that the court may select and impose a proper consecutive term for the enhancement. The court may also reconsider the base term on the assault count and may reconfigure the sentence as a whole in any legally authorized manner to arrive at an appropriate punishment. (See People v. Calderon (1993) 20 Cal.App.4th 82, 88; People v. Hill (1986) 185 Cal.App.3d 831, 834.)
While we express no view on the appropriate sentence on remand, we note that a mitigated three-year term on the assault count and a mitigated three-year term on the firearm enhancement would net the same prison sentence as that originally imposed by the court.
Appellant argues that on remand, the aggregate sentence may not exceed the six years originally imposed. He cites People v. Mustafaa (1994) 22 Cal.App.4th 1305 and People v. Torres (2008) 163 Cal.App.4th 1420 for the proposition that when a component of a sentence is unauthorized but the aggregate term is authorized (i.e., when it is possible to reconfigure the sentence in a legally authorized way and arrive at the same number of years), a greater sentence may not be imposed on remand. We need not decide at this juncture whether Mustafaa and Torres were correctly decided. Should the trial court impose a sentence on remand that exceeds six years, appellant may appeal from that sentence.
III. DISPOSITION
The conviction on count three, negligently discharging a weapon under section 246.3, is reversed. The convictions on counts one and two, assault with a semiautomatic firearm under section 245, subdivision (b), and shooting from a motor vehicle under section 12034, subdivision (c), are affirmed. The case is remanded for resentencing on counts one and two and the firearm use enhancement.
We concur. JONES, P. J., BRUINIERS, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution
We do not go so far in our own analysis of Corsaro, but unless there is some affirmative indication to the contrary, we must presume a reconstituted jury will follow an instruction to begin deliberations from the very beginning and disregard prior deliberations. Moreover, as the court in Aikens observed, “Appellant argues that the two counts are so inextricably intertwined that the new juror could not be a full participant in the deliberations on count II deliberations and that a guilty verdict on the first count returned by the original jury ordained a guilty verdict on the second count by the reconstituted jury. A logical extension of this proposition cries out for a response to the question ‘then what [were] the defendant’s prospects on count II if the original jury had continued with deliberations?’ ” (Aikens, supra, 207 Cal.App.3d at p. 213.)