Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LA052574, Martin L. Herscovitz, Judge.
Jonathan K. Golden, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Gabriel Martin Singer appeals the judgment entered following his conviction by jury of voluntary manslaughter and shooting at an occupied building. (Pen. Code, §§ 192, subd. (a), 246.) We reject Singer’s claims the trial court erroneously instructed the jury on the natural and probable consequences doctrine and the personal use of a firearm but agree the conviction of shooting at an occupied building must be reversed. In all other respects, the judgment is affirmed.
Subsequent unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The prosecution’s evidence.
On the evening of May 11, 2006, a community art show was held at Needle Pushers, a tattoo and body piercing studio on Saticoy Street in Van Nuys. The owner of Needle Pushers, Rolando Gutierrez, and some of its employees, including Anthony Sena and Timothy Hyle, were members of the tagging crew MTA. Gutierrez did not want any members of a rival tagging crew, TKO, to attend the show and he asked some TKO members not to attend. During the show, which was held inside the studio and in the adjacent parking lot, Gutierrez was advised fights were occurring in the parking lot. Gutierrez went outside and saw between 50 and 100 people in the parking lot area. Sena and another MTA member, Gasoline, were arguing with at least five other individuals. Gutierrez heard Sena yell, “You guys shouldn’t be here.” Sena also yelled, “Fuck TKO.” One of the individuals at whom Sena was yelling produced a hatchet and another produced a small Dodger bat and started waving them around. Singer, who was wearing a black hooded sweatshirt, fired at least three shots into the air from a semiautomatic handgun. Singer then brought the gun to a level position and fired four or five shots into the tattoo studio. Singer stopped firing when the slide lock of the weapon went back, indicating the weapon was empty. Gutierrez heard additional shots but did not see who fired them. Gutierrez threw a trash can at Singer and other people present in the parking lot threw bottles at him. When Gutierrez returned to the studio, he saw Sena had been fatally wounded by a gunshot to the head.
Timothy Hyle saw Singer point a gun into the air. Hyle heard one shot and then saw Singer lower the gun and fire 11 to 12 shots toward the studio. Between 20 and 30 people were standing in front of the shop. After firing the shots, Singer said, “T.K.O., bitch.”
Jason Billet, a former Needle Pushers employee, heard yelling between two groups of people, one in front of the studio that included Sena, and another in the street in front of the studio. Billet saw one or two of the people in the street fire shots into the air and then into the studio. Billet saw Singer fire at least two shots into the air.
Mynor Priesing was standing near the door of the tattoo studio when he noticed people scattering and running toward the shop. Priesing heard at least four gunshots and saw two males in the driveway, one wearing a black hooded sweatshirt and the other wearing a Dodger jacket and cap. Both individuals produced handguns. The man in the sweatshirt pointed his gun at the shop. Priesing heard nine or ten shots but did not recall seeing anyone fire into the air.
Steve Casaus saw a group of 10 to 12 people arrive at the show. One of them said, “TKO, ” and another had a small Dodger bat. Someone in the group started swinging a hatchet and people ran. Casaus heard a gunshot and saw Singer fire three or four times into the air until his gun went into slide lock. A second individual wearing a Dodger jacket and cap fired eight or nine shots at the crowd.
Letitia Harris testified she saw Singer, Candy Srichandr and another person she did not know as she walked from the art show to her car. Harris knew Srichandr would not be welcome at the show because of her affiliation with TKO. As the four of them walked toward the tattoo shop, Harris saw an argument taking place outside the shop. Gutierrez was attempting to defuse the situation. When they arrived at the parking lot, a fight started involving approximately eight TKO members, including Singer. The male who accompanied Srichandr and Singer, a tall skinny male with red hair and a red beard, produced an ax and started swinging it, causing the combatants to retreat. A male dressed in gang attire produced a gun, yelled TKO and fired once in the air. When he lowered the gun and aimed at the crowd, Harris ran toward the tattoo shop. She heard four to six shots as she ran and heard additional shots after she entered the shop and hid behind a couch.
Candy Srichandr, Singer’s fiancé at the time of the shooting, testified Singer suggested attending the art show and they discussed the fact that MTA members would be present. Singer was upset that MTA members had crossed out TKO artwork posted on walls that permitted graffiti. Singer always carried a gun and had it with him on this occasion. They drove to a restaurant where they met TKO members Guer, Yukon, Omen and Primo. While there, they talked about fighting MTA and someone mentioned “fucking up” MTA if they got crazy. Singer, Srichandr and Guer left the restaurant in Singer’s car. The others followed Singer to the show in another car.
Srichandr testified pursuant to a leniency agreement which provided that, in exchange for her truthful testimony, Srichandr would be permitted to plead guilty to being an accessory after the fact to murder and would be granted formal probation with one year in jail and a suspended three-year prison term.
Singer drove past the art show and went to a gas station. Srichandr was concerned that so many people were at the art show and knew there would be a confrontation between her group and MTA members. All six individuals in Srichandr’s group gathered at the rear of the other car. Srichandr asked, “What if they get crazy?” Yukon then opened the trunk of the other car, displayed numerous guns and said, “Don’t trip if they get crazy.” They returned to the art show and parked on a street near the tattoo shop. Singer got a gun from the trunk of his car and put it in the pocket of the black hooded sweatshirt he was wearing. As they approached the show, Srichandr spoke to a female member of MTA, Letitia Harris. They agreed the rivalry should end and each crew should stop crossing out the other’s graffiti. As Singer, Srichandr, Harris and Guer walked toward the art show, Guer sarcastically asked whether Harris was scared. Harris replied, “No. For what?”
Srichandr walked into the crowd and lost track of Singer until she heard bottles breaking. She ran to the sidewalk and saw a crowd around Singer yelling, “MTA, ” and “Fuck TKO.” Srichandr heard shots and saw Singer fire into the air two or three times, causing the crowd around him to retreat. Srichandr then saw Yukon, but not Singer, aim a gun into the parking lot. Srichandr claimed she could not see what ensued because she was not wearing her prescription glasses.
Singer, Srichandr and Guer left in Singer’s car. Singer took Guer to his car, then he and Srichandr went home. Singer and Srichandr were unaware anyone had been shot until the next day. In response to the situation, Srichandr and Singer left town.
When police officers arrived at the scene of the shooting, between 80 and 100 people were in the area. Sena’s body was in the parking lot in front of the tattoo shop and the windows of the shop had been shattered.
Officers found shell casings next to the driveway leading to the tattoo parlor. Six of the casings were.40 caliber casing that had been fired from the same gun. Four others were nine-millimeter casings which had been fired from a second gun.
2. Defense evidence.
Singer testified in his own defense. He admitted he was a member of TKO at the time of the art show but denied he went there intending to fight or kill anyone. Singer and Srichandr met Guer, who is a red head, Omen, Yukon and an individual named Primo at a restaurant before they went to the art show. Srichandr and Guer went to the show in Singer’s car. Singer stopped at a gas station but denied he saw weapons in the trunk of the car occupied by Omen, Primo and Yukon. Singer had a.40 caliber handgun loaded with four or five bullets. Singer regularly carried a gun after he was stabbed in December of 2005. The others in his group did not know Singer had a gun. Singer did not see Guer with a hammer or a hatchet. After they parked, Srichandr saw Harris and walked to the show with her. Singer and Guer followed. When Singer got to the area of the shop, he saw “Gas” fighting with someone and that five to ten people had surrounded him. People yelled at Singer, stating, “Fuck TKO, ” and “Get out of here.” Bottles were thrown at Singer’s feet and Singer saw an individual with a shiny object approach him. Singer felt threatened, lost track of his associates and saw a bald male with a gun approach him. Singer raised his gun into the air and fired until it went into slide lock. Singer denied he leveled the gun at anyone. As Singer and Srichandr left, he heard gunshots but did not see who fired them. Singer later learned Sena had died and that he and Srichandr were being blamed. Singer left town for about eight months with Srichandr. Singer surrendered in February of 2007 after speaking to an attorney.
3. Verdicts.
The jury convicted Singer of voluntary manslaughter of Sena and found he personally used a firearm in the commission of the offense. The jury also convicted Singer of shooting at an occupied building but found not true an allegation he personally discharged a firearm causing Sena’s death. The jury acquitted Singer of attempted murder and attempted voluntary manslaughter of Letitia Harris, John Billett, Steve Casaus and Mynar Priesing.
CONTENTIONS
Singer contends the trial court’s instruction and the prosecutor’s argument on the natural and probable consequences doctrine require reversal of the conviction of voluntary manslaughter, the instruction and the prosecutor’s argument on personal use of a firearm permitted the jury to find the allegation true based on an incorrect legal theory, and the conviction of shooting at an occupied building must be reversed for failure to instruct on the lesser included offense of discharging a firearm in a grossly negligent manner.
DISCUSSION
1. Singer fails to demonstrate instructional error or prosecutorial misconduct in connection with the conviction of voluntary manslaughter.
a. Additional background relative to Singer’s claim.
The trial court initially instructed the jury on “Aiding and Abetting: General Principles” (CALCRIM No. 400), “Aiding and Abetting: Intended Crimes” (CALCRIM No. 401), and “Natural and Probable Consequences Doctrine (Target and Non-target Offenses Charged)” (CALCRIM No. 402).
As given by the trial court, CALCRIM No. 400 stated: “A person may be guilty of a crime in two ways: One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator who directly committed the crime. A person is equally guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. Under some circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.”
In argument to the jury, the prosecutor asserted there were three theories of liability: as a direct perpetrator, as an aider and abettor, or under the natural and probable consequences doctrine.
On the third day of deliberations, the jury asked the trial court several questions and requested “[f]urther clarification of intent and aider and abettor.”
Out of the presence of the jury, the trial court indicated it believed the description of the natural and probable consequences doctrine in CALCRIM No. 402 was confusing and stated it intended to instruct the jury, over defense counsel’s objection, with a modified version of CALJIC No. 3.02 in which the term “perpetrator” would be substituted for the term “principal.”
Thereafter, using an overhead projector, the trial court referred to instructions it previously had given on aiding and abetting and advised the jury that a perpetrator, i.e., the person who fired the fatal shot, and aiders and abettors are equally guilty. (CALCRIM No. 400.) The trial court noted the charged crimes were murder, attempted murder, shooting at an occupied building and the lesser included offenses of voluntary manslaughter and involuntary manslaughter. The trial court advised the jury that, in order to convict someone of one of these charged offenses as an aider and abettor, the People had to prove all the elements of aiding and abetting beyond a reasonable doubt.
Reiterating CALCRIM No. 401, the trial court told the jury the People had to prove: (1) “the perpetrator committed the crime;” (2) “the defendant knew that the perpetrator intended to commit the crime;” (3) “before and during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;” and, (4) “the defendant’s words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime. Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose, and he or she specifically intends... to and does, in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” Further, “[e]ach and every one of those four elements must be proven to you beyond a reasonable doubt” in order to find Singer aided and abetted any of the charged crimes or lesser included crimes.
The trial court then told the jury the prosecutor was a “little incorrect” when he referred in argument to three theories of liability and stated there really were only two: “direct perpetrator or aiding and abetting.” The trial court indicated it believed the CALJIC instruction on the natural and probable consequences doctrine, which had been used for many years until recently, was “shorter and simpler” than the three page CALCRIM instruction the trial court had given the jury. The trial court then instructed the jury to disregard the previously given CALCRIM instruction on the natural and probable consequences doctrine and read the jury a modified version of CALJIC No. 3.02 which provided:
“One who aids and abets another in the commission of a crime or crimes is not only guilty of those crimes, but is also guilty of any other crime committed by a perpetrator which is a natural and probable consequence of the crimes originally aided and abetted. [¶] In order to find the defendant guilty of the crimes of murder, attempted murder, or shooting at an occupied building or a lesser offense, you must be satisfied beyond a reasonable doubt that, one, the crimes of brandishing a firearm or a deadly weapon or assault with a deadly weapon or a firearm were committed; two, that the defendant aided and abetted any of those crimes; three, that a perpetrator committed the crimes of murder, attempted murder, or shooting at an occupied building or a lesser offense; and, four, the crimes of murder, attempted murder, or shooting at an occupied building or a lesser offense were a natural and probable consequence of the commission of the crimes of brandishing a firearm or a deadly weapon or assault with a deadly weapon or a firearm.” “In determining whether a consequence is natural and probable, you must apply an objective test based not... only on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A natural consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen.... [¶] You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime, and that the crime of murder, attempted murder, or shooting at an occupied building or a lesser offense was a natural and probable consequence of the commission of that target crime.”
b. Singer’s contentions.
Singer contends CALJIC No. 3.02 as given by the trial court permitted the jury to find Singer’s personal act of brandishing a weapon, by itself, constituted a target crime upon which vicarious liability as an aider and abetter could be based, without regard for whether Singer intended to and actually did aid a confederate who committed voluntary manslaughter. Singer argues a properly worded instruction would have provided: “In order to find the defendant guilty as an aider and abettor..., you must be satisfied beyond a reasonable doubt that: 1. The crimes of brandishing a firearm... or assault with a deadly weapon... was committed by a confederate of the defendant; 2. That the defendant aided and abetted any of those crimes; 3. That a confederate committed the crimes of murder, attempted murder or shooting at an occupied building....”
Singer raises this contention with respect to both CALJIC No. 3.02 and CALCRIM No. 402. However, the trial court instructed the jury to disregard CALCRIM No. 402. We presume the jury followed the trial court’s instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) We therefore consider Singer’s claims only as they relate to CALJIC No. 3.02 as given by the trial court.
Singer claims CALJIC No. 3.02 as given by the trial court failed to clarify that Singer must have known his confederate’s unlawful purpose, that Singer intended to facilitate or encourage a target crime committed by his confederate, and that Singer aided or encouraged the confederate in committing the target crime. (People v. Prettyman (1996) 14 Cal.4th 248, 267.) According to Singer, the instruction permitted the jury to find Singer’s intentional commission of the target offense made him an aider and abettor of the second shooter, regardless of whether Singer knew the identity of that person, whether the second shooter was a confederate as, opposed to a stranger, whether Singer knew the second person planned to commit a target crime or whether Singer intended to assist him or her in committing it. Further, because Singer admitted he brandished a firearm, the instruction permitted the jury to find he committed voluntary manslaughter based solely on that conduct.
Singer notes the instruction on brandishing, CALCRIM No. 983, also misleadingly focused on his conduct and not on a target offense committed by a confederate. CALCRIM No. 983 provided: “To prove that the defendant is guilty of brandishing a firearm or a deadly weapon, the People must prove that: [¶] (1) The defendant drew or exhibited a firearm or deadly weapon in the immediate presence of someone else; [¶] (2) The defendant did so in a rude, angry, or threatening manner; AND [¶] (3) The defendant did not act in self-defense or in defense of someone else.” (Italics added.) Singer claims the instruction should have been modified to replace the word “defendant” with the word “confederate” to clarify that Singer’s liability under the natural and probable consequences doctrine depended on his aiding and abetting a target crime committed by a confederate, not on a lesser crime perpetrated by himself.
Singer asserts the prosecutor reinforced this notion by arguing the natural and probable consequences doctrine “means that if you decide it was reasonably forseeable that somebody brandishing a loaded firearm or assaulting somebody with a firearm or brandishing a deadly weapon, like when Guer was in front of those people... swinging that axe as people were backing up, if it was reasonably foreseeable if, in a situation like that, somebody brandishing a loaded gun, somebody could get killed, somebody could get shot, ... if that’s reasonably foreseeable, and you’re part of that brandishing, and you’re a part... of that assault, you’re guilty of murder.”
The prosecutor indicated there were two target crimes, brandishing and assault. “If, during those crimes, murder happens, somebody was killed during those crimes and, under all the circumstances, a reasonable person in the defendant’s position would have known that that was of natural and probable consequence, ... you’re on the hook for murder.” The prosecutor noted Singer could “be the direct perpetrator of the brandishing and assault, or he can be aiding and abetting the brandishing and assault because, ... if you’re aiding and abetting, you’re just as guilty as the direct perpetrator. If he’s guilty of committing one of those two crimes, and it’s reasonably foreseeable it could lead to murder, he’s guilty of murder.”
Singer claims Guer did not commit manslaughter by brandishing an axe. Thus, even if Singer aided and abetted Guer, it did not follow that Singer was liable for Sena’s death. However, the trial court’s instructions and the prosecutor’s argument allowed the jury to view either Guer’s act of brandishing an axe or Singer’s act of brandishing a firearm as a completed target crime. Singer claims the jury was not told to focus on whether Singer intended to aid and abet a known confederate (the second shooter) in the commission of the target crime at the time Singer arrived at the tattoo shop or whether the offense of manslaughter by the confederate was natural probable consequence of the target crime Singer encouraged or facilitated. Instead, the instructions and the prosecutor’s argument focused on whether Singer personally intended to commit a target crime.
Singer concludes that, because the jury found he did not personally discharge a firearm causing Sena’s death in connection with the conviction of shooting at an occupied building, the jury likely convicted him of voluntary manslaughter as an aider and abetter under the natural and probable consequences doctrine. Therefore, the error was prejudicial and requires reversal.
c. Resolution.
(1) Forfeiture.
Initially, we note Singer appears to have forfeited the claims he seeks to raise with respect to the instruction on the natural and probable consequences doctrine and brandishing a firearm. Specifically, to the extent Singer contends a different wording of CALJIC No. 3.02 or CALCRIM No. 983 would have avoided the errors he raises on appeal, e.g., substitution of the term “confederate” for “principal” in CALJIC No. 3.02 and for “defendant” in CALCRIM No. 983, the claims have been forfeited for failure to suggest the modification in the trial court. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [“ ‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ ”]; People v. Hart (1999) 20 Cal.4th 546, 622.)
Singer similarly failed to object to the remarks by the prosecutor which he now claims misled the jury. In order to preserve a claim of prosecutorial misconduct, the defendant generally must object at the time the misconduct occurs and request a curative admonition to the jury. (People v. Thornton (2007) 41 Cal.4th 391, 454; People v. Ayala (2000) 23 Cal.4th 225, 284; People v. Avena (1996) 13 Cal.4th 394, 442.) Singer did neither. Thus, he also has forfeited this claim.
However, even if we view the claimed instructional errors as violative of Singer’s substantial rights and thus not requiring an objection in the trial court (see Pen. Code, § 1259; People v. Salcido (2008) 44 Cal.4th 93, 155; People v. Kelly (2007) 42 Cal.4th 763, 791), and overlook Singer’s failure to object to the prosecutor’s remarks, Singer’s claims fail on the merits.
(2) No reversible ambiguity in the trial court’s instructions.
When we review a challenge to jury instructions as being incorrect or incomplete, we evaluate the instructions given as a whole, not in isolation. (People v. Richardson (2008) 43 Cal.4th 959, 1028; People v. Mayfield (1997) 14 Cal.4th 668, 777.) The standard of review applicable to an instruction challenged on appeal as ambiguous is whether there is a reasonable likelihood the jury applied the instruction in a way that denied the defendant a fair trial. (People v. Thornton, supra, 41 Cal.4th at p. 436; People v. Huggins (2006) 38 Cal.4th 175, 192.)
Applying these principles here, we conclude there is no reasonable likelihood the jury understood CALJIC No. 3.02 to mean Singer could be convicted of voluntary manslaughter of Sena as an aider and abettor under the natural and probable consequences doctrine based solely on Singer’s act of brandishing a firearm.
In the initial round of instructions and again when the trial court clarified the natural and probable consequences doctrine, the trial court instructed the jury on the difference between a direct perpetrator and an aider and abettor. Further, on both occasions the trial court advised the jury that, in order to convict Singer as an aider and abettor, it had to find, beyond a reasonable doubt, that: “1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”
Thus, the trial court twice read the jury CALCRIM Nos. 400 and 401, which precluded the jury from finding Singer guilty of voluntary manslaughter on an aider and abettor theory without also finding he was aware of the perpetrator’s intent at the time of the offense and intended to assist the perpetrator. Although the trial court told the jury to disregard CALCRIM No. 402, it did not instruct the jury to disregard CALCRIM Nos. 400 and 401. Rather, it repeated the instructions which required the jury to find that Singer knew the perpetrator intended to commit a crime, that Singer intended to aid and abet the perpetrator in committing the crime, and that Singer’s words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime. The trial court further indicated each of these elements had to be proved beyond a reasonable doubt in order for the jury to find Singer guilty as an aider and abettor.
Given these instructions, it is not reasonably probable the jury interpreted CALJIC No. 3.02 as Singer suggests, namely, to permit a conviction of voluntary manslaughter of Sena based solely on Singer’s act of brandishing a firearm without regard to whether he intended to aid the direct perpetrator of that offense.
Moreover, even had the trial court not repeated CALCRIM No. 400 and 401, CALJIC No. 3.02 did not permit the jury to find Singer guilty of aiding and abetting under the natural and probable consequences doctrine based on a finding he personally brandished a firearm. CALJIC No. 3.02 specifically required the jury to agree unanimously “that the defendant aided and abetted the commission of an identified and defined target crime, and that the crime of murder, attempted murder, or shooting at an occupied building or a lesser offense was a natural and probable consequence of the commission of that target crime.” Nothing about the instruction permitted the jury to find Singer guilty of voluntary manslaughter as an aider and abettor based on his commission of a target crime without finding the additional elements required for aider and abetter liability.
(3) Any misstatement by the prosecutor was harmless.
With respect to the prosecutor’s assertedly improper argument, even if the prosecutor misstated the law regarding the natural and probable consequences doctrine, the prosecutor made the argument cited by Singer before the trial court responded to the jury’s request for clarification of the instructions on aiding and abetting. Consequently, any impropriety must be seen as harmless. In any event, the jury was instructed to follow the law as stated by the trial court and, if they believed an attorney’s explanation of the law conflicted with the instructions, they were to follow the instructions. Absent some affirmative indication in the record to the contrary, and here there is none, we presume the jury followed the trial court’s instructions. (People v. Sanchez, supra, 26 Cal.4th at p. 852; People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331.)
In sum, we reject Singer’s claim the instructions given by the trial court and the prosecutor’s argument permitted the jury to convict him of voluntary manslaughter based on his personal act of brandishing a firearm.
2. Singer fails to demonstrate reversible error with respect to the finding he personally used a firearm.
The jury found true an allegation Singer personally used a firearm in the commission of voluntary manslaughter within the meaning of section 12022.5, subdivision (a). In order to find this allegation true, the defendant must personally use a firearm in the commission of the felony. (People v. Walker (1976) 18 Cal.3d 232, 235-236.)
As relevant to Singer’s contention, the trial court instructed the jury on the personal use of a firearm in the words of CALCRIM No. 3146 as follows: “If you find the defendant guilty of the crimes charged in Counts 1 through 7 or the lesser crimes thereto, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally used a firearm during the commission or attempted commission of that crime.”
Singer contends CALCRIM 3146 improperly focused on the timing of the gun use, “during the commission” of the crime, rather than whether the gun use furthered the offense of voluntary manslaughter. Singer claims the instruction improperly permitted the jury to find the firearm use allegation true if Singer used a gun during the time another person committed manslaughter, without regard for whether Singer’s use of a firearm furthered the manslaughter or merely was incidental to it. If the jury concluded Singer’s act of brandishing was a target offense that rendered him guilty of manslaughter, the jury inevitably also would have found he personally used a firearm during the commission of the offense without considering whether Singer’s use of the gun furthered the commission of manslaughter. Because a personal use enhancement cannot be imposed with respect to an offense that has use of a firearm as an element, and the jury could have imposed liability based solely on Singer’s act of brandishing a firearm and shooting it into the air, the enhancement must be reversed.
Singer notes the prosecutor’s argument focused on Singer’s conduct during the crimes. The prosecutor conceded the People had failed to prove Singer fired the fatal shot and thus he was not the perpetrator. The prosecutor argued Singer aided and abetted the homicide by committing a target crime. Because the jury was informed Singer’s act of brandishing could be considered a completed target offense which rendered Singer responsible for the homicide, Singer claims the jury could have found the personal use of a firearm allegation true based on Singer’s commission of brandishing or assault.
Singer argues the instruction and the prosecutor should have substituted the words “in furtherance of” for “during” the commission of the offense. Singer notes that, if his actions did not further the commission of the manslaughter, he merely was armed in the commission of the offense. (Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1005; People v. Granado (1996) 49 Cal.App.4th 317, 324-325; [use must facilitate crime].)
Lastly, Singer claims there was insufficient evidence he personally used a gun in furtherance of manslaughter, citing People v. Nguyen (1988) 204 Cal.App.3d 181, and People v. Allen (1985) 165 Cal.App.3d 616. He claims Yukon likely fired the fatal shot. Thus, he did not use a firearm in the commission of voluntary manslaughter.
Putting aside Singer’s failure to object to the instruction or seek clarification in the trial court (People v. Hudson, supra, 38 Cal.4th at pp. 1011-1012; People v. Hart, supra, 20 Cal.4th at p. 622), his arguments are not persuasive.
Singer contends the jury might have convicted him of voluntary manslaughter based only on his act of brandishing a firearm. However, we rejected this claim in the previous discussion section and concluded the instructions, viewed as a whole, did not permit the jury to convict Singer of voluntary manslaughter without finding Singer knew the perpetrator intended to commit the target offense, Singer intended to aid and abet the perpetrator at the time the offense was committed and Singer in fact aided and abetted the perpetrator.
Only after the jury had found Singer guilty of voluntary manslaughter as an aider and abettor under the natural and probable consequences doctrine would it have had occasion to consider whether Singer used a firearm in the commission of the offense. CALCRIM No. 3146 states: “If you find the defendant guilty of the crimes charged in Counts 1 through 7 or the lesser crimes thereto, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant personally used a firearm during the commission or attempted commission of that crime.” Thus, there was no possibility the jury found Singer personally used a firearm based solely on his act of brandishing a firearm. Before the jury would have commenced this inquiry, it necessarily already had convicted Singer of voluntary manslaughter as an aider and abettor under the natural and probable consequences doctrine.
Consequently, we reject Singer’s claim the instruction and/or the prosecutor’s argument permitted the jury to finding he personally used a firearm based solely on his act of brandishing.
With respect to Singer’s attack on the sufficiency of the evidence, Singer actually fired a handgun in the underlying incident. Several eyewitnesses testified Singer leveled his gun and fired at the tattoo shop. Even if the jury accepted Singer’s claim he only fired into the air, it nonetheless could conclude Singer personally used a firearm in aiding and abetting the commission of a target offense, the natural and probable consequences of which was the voluntary manslaughter of Sena. Singer’s conduct exceeded a passive display of a firearm and supports the jury’s finding Singer personally used a firearm in the commission of voluntary manslaughter. (See Alvarado v. Superior Court, supra, 146 Cal.App.4th at p. 1005; People v. Granado, supra, 49 Cal.App.4th at pp. 324-325.)
Indeed, it is settled that liability for use of a firearm may be imposed where the accused “uses [a] firearm in furtherance of a series of related offenses that culminates in a fatal or near fatal shooting even though the defendant does not personally fire the actual shot.” (People v. Berry (1993) 17 Cal.App.4th 332, 335-338 [reviewing collected cases].) Clearly, the evidence present at trial permitted the jury to find Singer’s act of brandishing and firing the handgun aided and abetted the perpetrator’s commission of voluntary manslaughter, even though Singer did not fire the fatal shot.
The contrary result reached in People v. Allen, supra, 165 Cal.App.3d 616, and People v. Nguyen, supra, 204 Cal.App.3d 181, is not dispositive in the present case. As noted in Berry, these cases failed to consider case law that establishes the personal use of a firearm may be shown where a defendant’s use of a firearm occurs as part of a related series of crimes. Thus, we agree with Berry’s conclusion that Allen and Nguyen are not convincing authority on this point. (People v. Berry, supra, 17 Cal.App.4th at pp. 338-339.)
Finally, we reject Singer’s assertion the personal firearm use allegation must be stricken because the crime to which the enhancement attached included firearm use as an element. Singer was convicted of voluntary manslaughter, which does not include firearm use as an element.
In sum, Singer has failed to demonstrate error in connection with the jury’s finding he personally used a firearm in the commission of voluntary manslaughter.
3. The conviction of shooting at an occupied building in count 8 must be reversed.
Singer contends the conviction of shooting at an occupied building in violation of section 246 in count 8 must be reversed for failure to instruct on the lesser included offenses of discharging a firearm in a grossly negligent manner in violation of section 246.3.
The People concede the point and it appears their concession is well taken. (People v. Ramirez (2009) 45 Cal.4th 980, 990; see People v. Overman (2005) 126 Cal.App.4th 1344, 1360-1363.) Accordingly, we shall order the conviction in count 8 reversed.
DISPOSITION
The conviction of shooting at an occupied building in violation of section 246 in count 8 is reversed. In all other respects, the judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.
CALCRIM No. 401 provided: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that,
“1. The perpetrator committed the crime;
“2. The defendant knew that the perpetrator intended to commit the crime;
“3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
“AND
“4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.
“Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.
“If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
“If you conclude that the defendant was present at the scene of the crime and failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor; however, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.”