Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Los Angeles County Super. Ct. No. GA061637, Zaven V. Sinanian, Judge.
Gideon Margolis, 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, Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General for Plaintiff and Respondent.
FLIER, J.
On counts 2, 3, and 5, appellant Abdul Malik Saafir was convicted of discharge of a firearm from a motor vehicle (Pen. Code, § 12034, subd. (c); hereafter section 12034(c)), as to three different victims. On counts 4 and 6, he was convicted of assault with a semiautomatic firearm (§ 245, subd. (b); hereafter section 245(b)), as to two of the same victims. The jury also found numerous enhancement allegations to be true. Appellant was sentenced to 30 years to life in prison, based on the midterm of five years on count 2, plus 25 years to life for firearms discharge (§ 12022.53, subd. (d)). Concurrent sentences were imposed on the remaining counts.
Further statutory references are to the Penal Code unless otherwise stated.
Appellant contends: (1) On the section 12034(c) counts, the trial court should have instructed sua sponte on assault with a firearm (§ 245, subd. (a)(2); hereafter section 245(a)(2)), as a lesser included offense. (2) His conviction on the section 245(b) counts cannot stand, because that crime is a lesser included offense of section 12034(c), the crime in the other counts. (3) The trial court should have instructed sua sponte that his out-of-court statement was to be viewed with caution. (4) The abstract of judgment must be modified to correctly reflect the sentence imposed on count 4.
After reviewing the record, we requested supplemental briefing on whether counts 4 and 6 had to be stayed pursuant to section 654, assuming that those counts were not lesser included offenses of counts 3 and 5. Based on the supplemental briefing, we stay counts 3 and 5, rather than counts 4 and 6, pursuant to section 654. We also order the modification on count 4. We reject appellant’s remaining contentions, and otherwise affirm.
FACTS
On May 27, 2005, appellant lived with his girlfriend, Qian Sun, and their baby. Appellant kicked Sun out of the house around 11:20 p.m. following an argument. She telephoned Theodore Villar, a friend of hers from work. She told Villar what had happened, and said she was walking to the parking lot of a nearby medical center. Villar drove to the parking lot with his cousin, David Freyre. They got out of their vehicle when they saw Sun. Villar and Sun talked in the middle of the parking lot, while Freyre stood about 15 feet away.
Qian Sun is sometimes referred to as Sun Qian in the record.
Appellant drove up in his truck. Sun identified him to Villar as “her baby’s father.” Appellant swerved and struck Villar’s shoulder with the mirror on the driver’s side of the truck. He drove off but soon returned. This time he stopped the truck and yelled something. He then fired a handgun twice in the direction of Villar and Sun, who were about 25 feet away from him. He missed them, but a bullet went through Freyre’s right thigh. Freyre bled heavily, was treated at a hospital, and spent the next two weeks in bed. He still had daily pain in that area, as of the time of the trial.
The firearm was later recovered from appellant’s home.
DISCUSSION
1. The Issue Regarding Counts 2, 3, and 5
Appellant contends that, on counts 2, 3, and 5, the trial court had a sua sponte duty to instruct on section 245(a)(2)), as a lesser included offense of section 12034(c). The California Supreme Court recently rejected that very argument, in People v. Licas (2007) 41 Cal.4th 362, 364-365 (Licas). Based on Licas, we reject appellant’s contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Section 245(a)(2) provides: “Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.”
2. The Lesser Included Offense Issue Regarding Counts 4 and 6
On counts 4 and 6, appellant was convicted of assault with a semiautomatic firearm (§ 245(b)), as to the victims Sun and Villar. On counts 3 and 5, he was convicted of shooting from a vehicle (§ 12034(c)), as to the same victims. He contends that counts 4 and 6 must be stricken because section 245(b) is a lesser included offense of section 12034(c). We reject the contention because the crimes in section 245(b) and section 245(a)(2)both require an “assault,” and therefore require the present ability to commit violent injury on another person, which is not an element of the section 12034(c) offense, under Licas, supra, 41 Cal.4th 362, 367.
Section 245(b) states: “Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years.”
3. The Instructional Issue
At the trial, neither Sun, Villar, nor Freyre could describe what appellant said when he stopped the truck. On cross-examination, Freyre indicated that, although he did not recall at the time of trial what appellant said, he had testified at the preliminary hearing that appellant asked, “You’ve got a beef with my girlfriend?” before he started to shoot. Appellant maintains that the quoted statement means the trial court had a sua sponte duty to give CALCRIM No. 358, which instructs that a defendant’s out-of-court statement should be viewed with caution. (People v. Carpenter (1997) 15 Cal.4th 312, 392.)
CALCRIM No. 358 states: “You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether or not the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such [a] statement[s]. [¶] [You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.]”
The Bench Notes to CALCRIM No. 358 (Fall 2007 ed.) at page 108 indicate that the instruction must be given sua sponte only if “there is evidence that defendant made an admission or confession before trial.” It appears to us that appellant’s statement was neither an admission nor a confession, as it neither acknowledged guilt nor tended to prove guilt. (See CALJIC Nos. 2.70 & 2.71.) In any event, there was no possible prejudice from the absence of this instruction. (People v. Watson (1956) 46 Cal.2d 818, 836.) It was what appellant did, and not what he said, that was important. He argued with Sun and kicked her out of his house. He followed her to the parking lot, with a gun in his truck. He veered the truck at Villar and Sun, hitting Villar with the side mirror. He left, returned, and immediately shot at Villar and Sun. He missed them, but hit Freyre. His inquiry about a “beef” with his girlfriend, which Freyre did not even remember at the trial, made no possible difference to the case.
4. The Section 654 Issue
For Sun, counts 3 and 4 alleged, respectively, section 12034(c) and 245(b). For Villar, counts 5 and 6 alleged those same two crimes. The trial court ran all of those counts concurrently to the sentence it imposed on count 2, the section 12034(c) allegation regarding Freyre.
The same act against a victim cannot be punished twice, pursuant to this sentence of section 654, subdivision (a): “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.” (See People v. Ortega (1998) 19 Cal.4th 686, 692.) Therefore, sentence should have been imposed on only one count for Sun and one count for Villar.
Respondent points out that, if any counts are stayed pursuant to section 654, the applicable counts are counts 3 and 5, because section 245(b) carries a longer potential term of imprisonment than section 12034(c).
We conclude that, to avoid the prohibition against multiple punishment, execution of sentence on counts 3 and 5 must be stayed, pursuant to section 654.
5. Clerical Error in the Abstract of Judgment
On count 4, the trial court imposed the midterm of six years for section 245(b), plus the midterm of four years for an enhancement under section 12022.5, subdivision (a). Four years is the correct midterm penalty for that enhancement. The abstract of judgment and minute order of the sentencing hearing incorrectly indicate that the trial court imposed five years for it. The parties agree that the clerical error should be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
Execution of sentence on counts 3 and 5 is stayed pursuant to section 654. Also, the abstract of judgment shall be corrected to reflect a penalty of four years, and not five, for the section 12022.5, subdivision (a) enhancement on count 4. In all other respects, the judgment is affirmed.
We concur: RUBIN, Acting P. J., EGERTON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Section 12034(c) states: “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.”