Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. KA066676, Charles E. Horan, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Herbert S. Tetef and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Defendant and appellant Shawn Myers appeals from the judgment entered following a jury trial that resulted in his convictions for assault with a semiautomatic firearm, shooting at an occupied motor vehicle, and discharging a firearm with gross negligence. Myers was sentenced to a prison term of 16 years. In our original nonpublished opinion, filed May 23, 2006, we ordered Myers’s sentence modified to correct the amount of custody credit awarded, and to strike count 6, for grossly negligent discharge of a firearm. We otherwise affirmed his convictions. (People v. Myers (May 23, 2006, B182762 [nonpub. opn.].)
On February 20, 2007, the United States Supreme Court vacated the judgment and remanded to U.S. for further consideration in light of Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856, 127 S.Ct 856].) The parties have provided supplemental briefing regarding the effect of Cunningham on Myers’s sentence. We again conclude Myers’s conviction for grossly negligent discharge of a firearm must be stricken, and order the judgment modified to credit Myers with an additional day of custody credit. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. James Overstreet and Myers had attended the same high school and played football together. On February 24, 2004, Overstreet, Harold Frazier, and Billy Hines were driving in Frazier’s white Honda when they encountered Myers’s older brother and Jason Verona in a blue Malibu. The occupants of the blue Malibu began “trash talking” to the group in Frazier’s vehicle. Verona said to Overstreet, “I heard you were looking for me.”
Overstreet, Frazier, and Hines drove away and picked up Overstreet’s cousin, Chris Ward, in San Dimas. Hines drove while Frazier directed him to Myers’s Covina home. Frazier commented that they would “squash” a problem. When they arrived on Myers’s street, Myers and several other men were standing outside. As Frazier’s Honda passed by, Myers fired numerous shots at the vehicle, hitting Overstreet in the arm.
2. Procedure.
Trial was by jury. Myers was convicted of two counts of assault with a semiautomatic firearm upon Frazier and Ward (Pen. Code, § 245, subd. (b)), shooting at an occupied motor vehicle (§ 246), and discharging a firearm with gross negligence (§ 246.3). The jury found true allegations that Myers personally used a firearm during commission of the assaults. (§ 12022.5.) It acquitted Myers of assault with a semiautomatic firearm upon Overstreet and Hines. The trial court sentenced Myers to a total term of 16 years in prison, and imposed a restitution fine, a stayed parole revocation fine, and a court security assessment.
All further undesignated statutory references are to the Penal Code.
Myers appealed. As noted, in a nonpublished opinion we ordered the conviction for grossly negligent discharge of a firearm stricken and ordered the judgment modified to credit Myers with an additional day of custody credit. In all other respects we affirmed. On February 20, 2007, the United States Supreme Court vacated the judgment and remanded to U.S. for further consideration in light of Cunningham v. California, supra, 127 S.Ct. 856.
DISCUSSION
1. Myers could not properly be convicted of both shooting at an occupied motor vehicle and the lesser included offense of grossly negligent discharge of a firearm.
Myers was convicted of both shooting at an occupied motor vehicle in violation of section 246 (count 5) and discharging a firearm with gross negligence in violation of section 246.3 (count 6). At sentencing, the trial court selected a five-year sentence on count 5 and a two-year sentence on count 6, and stayed imposition of both pursuant to section 654.
Myers correctly asserts that section 246.3 is a lesser included offense of section 246. (People v. Overman (2005) 126 Cal.App.4th 1344, 1360-1361.) A lesser offense is necessarily included in a greater offense if the statutory elements of the greater offense include all the elements of the lesser offense, so that the greater cannot be committed without also committing the lesser. (People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Reed (2006) 38 Cal.4th 1224, 1231; People v. Sanchez (2001) 24 Cal.4th 983, 988; People v. Birks (1998) 19 Cal.4th 108, 117.) Accordingly, to determine whether an offense cannot be committed without necessarily committing the included offense, we look to the statutory definitions of both offenses, but do not consider the evidence in support of the conviction. (People v. Ortega, supra, at p. 698; People v. Reed (2000) 78 Cal.App.4th 274, 281.)
As the People concede, People v. Overman, supra, 126 Cal.App.4th 1344, held that section 246.3 was a lesser included offense of section 246 under the elements test. (Id. at p. 1360.) Both offenses are general intent crimes. (Id. at p. 1361.) Overman compared the elements of the two offenses and reasoned, “When a defendant shoots at an inhabited dwelling house, occupied building, or other target listed in section 246, the defendant discharges a firearm in a manner that has the potential for culminating in personal injury or death. Shooting at an inhabited dwelling house, for example, whether occupied or not, necessarily poses a significant likelihood or ‘high probability’ that personal injury or death will result, because people ‘ “are generally in or around the premises.” ’ [Citation.] The same significant risk of personal injury or death is present when a defendant shoots at any other target listed in section 246. [¶] 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. [¶] 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] 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.” (Id. at pp. 1361-1362.) Thus, section 246.3 is a lesser included offense of section 246. (Id. at p. 1360.)
As Overman observed, People v. Sengpadychith (2001) 26 Cal.4th 316, 322 referred to section 246.3 as a lesser included offense of section 246. The issue, however, was not directly considered by the court in Sengpadychith. (People v. Overman, supra, 126 Cal.App.4th at p. 1360, fn. 7.)
A defendant may not be convicted of both an offense and a lesser included offense. (E.g., People v. Ortega, supra, 19 Cal.4th at p. 692.) Accordingly, Myers is correct that he may not be convicted of both grossly negligent discharge of a firearm and shooting at an occupied motor vehicle. We therefore order the conviction for the lesser offense, grossly negligent discharge of a firearm, stricken.
2. Imposition of the upper term did not violate Myers’s right to a jury trial.
a. Additional facts.
On count 1, assault with a semiautomatic firearm on Frazier, the court imposed the midterm of six years, plus the high term of 10 years for the section 12022.5 firearm enhancement. It imposed the same sentence on count 3, assault with a semiautomatic firearm on Ward, to run concurrently to the sentence in count 1. It stayed sentence pursuant to section 654 on count 5, shooting at an occupied motor vehicle.
When imposing the midterm on count 1, the trial court observed that the fact Myers was on probation at the time he committed the crime was an aggravating factor, and his age and the victims’ conduct in coming into the neighborhood with the intention to fight were mitigating factors.
The trial court explained its imposition of the high term on the firearm enhancement was justified “due to the fact that not only did the defendant carry the weapon per his own testimony on a city street in a loaded fashion when he was not entitled to do so, but he actually fired the weapon during the commission of the offense and fired it in a neighborhood with houses, other people on the street, a lot of people on the street, a lot of teenagers on the street. And he fired it at a moving vehicle loaded with four kids. That justifies in my opinion the high term.” The court explained, “[T]here’s a lot of ways you can use a gun. You can use a gun by brandishing the weapon. You can use a gun by striking a human being with it or you can use a gun by firing the weapon and that’s what was done in this case.” “Brandishing the gun might get you the low. Hitting somebody might get you the mid. Firing the weapon on a city street at a vehicle full of people might well get you the high term.” The court stated that there was no dispute Myers actually discharged the gun, and defense counsel agreed, noting that Myers so testified.
b. Discussion.
Myers asserts that imposition of the upper term on the firearm enhancement based on facts that were neither admitted nor found true by the jury violated his rights to a jury trial and due process as articulated in Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466. We disagree.
In Apprendi v. New Jersey, supra, 530 U.S. 466, 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham v. California, supra, 127 S.Ct. 856, the Court held that California’s determinate sentencing law violated a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 127 S.Ct. 871; People v. Black (2007) 41 Cal.4th 799, 805, 808-809; People v. Sandoval (2007) 41 Cal.4th 825, 831-832.)
However, imposition of an upper term sentence “does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41 Cal.4th at p. 816.) Under California law, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for imposition of the upper term. (Id. at p. 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, “[a]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, at p. 812.) In other words, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)
Under California law, the court may not consider as an aggravator any fact that is an essential element of the crime (Cal. Rules of Court, rule 4.420(d)). “An aggravating circumstance is a fact that makes the offense ‘distinctively worse than the ordinary.’ ” (People v. Black, supra, 41 Cal.4th at p. 817.) “Aggravating circumstances include those listed in the sentencing rules, as well as any facts ‘statutorily declared to be circumstances in aggravation’ (Cal. Rules of Court, rule 4.421(c)) and any other facts that are ‘reasonably related to the decision being made.’ (Cal. Rules of Court, rule 4.408(a).)” (People v. Black, supra, at p. 817.)
Here, Myers’s constitutional right to a jury trial was not violated by the imposition of the upper term on the firearm enhancement because at least two aggravating factors were established by means that satisfied the requirements of the Sixth Amendment. (See People v. Black, supra, 41 Cal.4th at p. 816.) First, the trial court’s use of Myers’s discharge of the gun as an aggravating circumstance was supported by the jury’s verdict. The jury found Myers personally used a firearm, i.e., that he either “intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it.” Although the jury’s true finding on the personal use allegation did not necessarily require a finding that he discharged the gun, the jury additionally convicted him of shooting at an occupied motor vehicle and grossly negligent discharge of a firearm. Because discharge of the firearm was an element of both these offenses, by finding Myers guilty the jury necessarily found he discharged the gun. Because the jury made the finding Myers discharged the firearm, the trial court did not violate Cunningham by using that fact as an aggravator.
The jury was instructed that a violation of section 246, shooting at an occupied motor vehicle, required, inter alia, the following elements: “1. A person unlawfully discharged a firearm at an occupied motor vehicle; and [¶] 2. The discharge of the firearm was willful and malicious.” Similarly, the jury was instructed that the crime of grossly negligent discharge of a firearm required proof the defendant willfully and unlawfully discharged a firearm, in a manner which could result in injury or death to another.
Myers does not contend that the trial court’s reliance on the discharge of the gun as an aggravator violated California’s prohibition on dual use of facts. (See generally Cal. Rules of Court, rule 4.420(d).). We therefore do not address the issue.
Second, the trial court could properly find as an aggravating circumstance that Myers committed crimes against multiple victims. (People v. Calhoun (2007) 40 Cal.4th 398, 405.) In Calhoun, the trial court imposed an upper term based on the fact the defendant was convicted of several crimes for which consecutive sentences could have been imposed, and there were separate victims of a violent crime. (Ibid.) Calhoun concluded imposition of the upper term did not violate Cunningham. The court explained that in Cunningham, “the high court held that California’s determinate sentencing law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. This case does not implicate Cunningham because in convicting [the defendant] of two counts of gross vehicular manslaughter, and two counts of reckless driving causing bodily injury, the jury necessarily found there were multiple victims.” (People v. Calhoun, supra, at p. 406.)
The same is true here. The jury found Myers guilty of one count of assault with a firearm on Ward and another count of assault with a firearm on Frazier, both arising from the shooting incident. Thus, as in Calhoun, the jury made the finding there were multiple victims, and there was no violation of Blakely/Cunningham.
Myers argues that the trial court did not “specifically use” the multiple victim special circumstance as a basis for imposing the upper term on the enhancement. He asserts that a fact is never sufficient to authorize an upper term sentence unless the trial court actually finds it constitutes a circumstance in aggravation. Assuming arguendo that Myers is correct, his argument nonetheless fails because he reads the record too narrowly. The trial court expressly stated that the high term on the enhancement was “easily justified” due to the manner in which Myers carried out the crime, including that he “fired it at a moving vehicle loaded with four kids.” While the trial court did not utter the words “multiple victims,” its comments clearly indicated that the fact multiple victims were involved was a basis for its ruling.
Because we conclude that the two aggravating factors discussed ante were established by means that satisfied the requirements of the Sixth Amendment, we need not address the question of whether the fact Myers was on probation at the time he committed the crimes was a further permissible aggravating factor.
3. Myers is entitled to an additional day of custody credit.
Myers was arrested on June 9, 2004. He was sentenced on April 26, 2005. Therefore he was entitled to 322 days of actual presentence custody credit. (§ 2900.5; People v. King (1992) 3 Cal.App.4th 882, 886; People v. Smith (1989) 211 Cal.App.3d 523, 525-527.) Instead, the trial court awarded him 321 days of actual custody credit. We correct the trial court’s computational error and order the judgment modified accordingly. (§ 2900.5; People v. Guillen (1994) 25 Cal.App.4th 756, 764 [computational errors result in an unauthorized sentence and may be corrected on appeal].)
Myers does not challenge the trial court’s award of 48 days of presentence conduct credit.
DISPOSITION
Myers’s conviction for grossly negligent discharge of a firearm (count 6) is ordered stricken. The judgment is modified to credit Myers with an additional day of presentence custody credit, for a total of 322 days of presentence custody credit, plus 48 days of presentence conduct credit. The clerk of the superior court is ordered to prepare an amended abstract of judgment and forward a copy to the Department of Corrections. In all other respects the judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.