Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF096237A
NICHOLSON, Acting P.J.
A jury found defendant Brian Sum guilty of assault with a firearm, shooting at an inhabited dwelling, attempted murder, ex-felon in possession of a firearm and discharging a firearm with gross negligence, and found true special allegations that defendant personally used a firearm and discharged a firearm at an occupied vehicle causing great bodily injury, personally used a firearm and inflicted great bodily injury, intentionally discharged a firearm and intentionally discharged a firearm causing great bodily injury. Defendant was sentenced to an aggregate prison term of 29 years eight months to be served consecutive to (and prior to) a term of life with the possibility of parole.
On appeal, defendant contends (1) the trial court’s refusal to instruct the jury on self-defense was prejudicial, (2) it was error to convict him of discharging a firearm with gross negligence, a lesser included offense of shooting a firearm at an inhabited dwelling, (3) the firearm use enhancement should have been stricken because personal use of a firearm is an element of shooting at an inhabited building, and (4) the eight-month sentence for being a felon in possession of a firearm should have been stayed pursuant to Penal Code section 654. We agree as to defendant’s third contention, and affirm the judgment in all other respects.
Hereafter, further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 10:00 p.m. on May 12, 2005, police responded to a shooting near a house on Hickock Drive in Stockton. When they arrived, they found approximately 20 to 30 people standing in the street near a duplex across the street from the house. The victim, Than Lach, a resident of the duplex, lay on the sidewalk near his front door, bleeding from a gunshot wound to the leg. The front of the duplex, including both front doors and the garage, was damaged from being hit by bullets. A group of people attending a party stood in the front yard of the house in proximity to where the shots had come.
Lach later told police he was inside his duplex when he heard a commotion outside. He rushed outside to look for one of his children. There was a large group of people, including the defendant, across the street, some of them arguing with each other. Lach stood by his garage and watched as several people tried to push the defendant away from the fight. Defendant became upset and fired a handgun twice into the air. Just then, a red car drove up the street, turned in front of Lach’s house and stopped. Seconds later, as defendant walked towards the car, Lach heard “six, seven, eight” gunshots. Lach turned to go back inside the duplex and was hit in the leg with a bullet. As he lay on the ground, he heard “three to four” more gunshots. Lach was taken to the hospital where he told police defendant “was shooting at the red car as it was leaving.”
Lach testified that all of the windows in the red car were rolled up, and there were no gunshots from the car.
Shirley Logan, Lach’s neighbor and a resident of the other half of the duplex, told police she was watching television when she heard “two loud booms.” She heard people talking and went outside to investigate. As Logan stood outside talking to her neighbors, a small red car drove slowly down the street and made a U-turn in front of the duplex. Logan heard at least six or seven gunshots and saw muzzle flashes from across the street. She turned and ran inside the duplex, continuing to hear gunfire as she entered her home to call 911.
Logan testified that she did not see any muzzle flashes coming from the car.
Youn Seraypheap, a detective with the City of Stockton Police Department, was assigned to investigate the shooting. On May 24, 2005, Seraypheap and his partner, Detective Villanueva, interviewed defendant’s mother, Toeur Mork, in front of her home. Mork first claimed she knew nothing about the shooting, telling detectives she left the party between 7:00 p.m. and 7:30 p.m. that evening with her husband and her youngest son because she had to be at work by 9:00 p.m. Mork said defendant was still at the party with his wife, Rinda Hoeurn, and their son when she left.
Seraypheap and Villanueva next interviewed Hoeurn. Seraypheap told Hoeurn that defendant admitted to the shooting, and asked her to tell the truth about what happened. Hoeurn told them that, at some point during the party, “two or three carloads of Cambodian and Laotian people” from Modesto showed up and parked in the street. An argument later erupted between the group from Stockton and the group from Modesto. When the people from Modesto got back into their cars (one a red Acura Integra and another a Honda Accord) to leave, Hoeurn saw defendant shoot a handgun “two or three times” in the direction of the cars. Hoeurn ducked down and heard additional shots fired, which she believed came from the cars although she did not see any muzzle flashes. After the shooting, Hoeurn got into Mork’s car with defendant and his family and went home.
When detectives finished questioning Hoeurn, they called Mork back outside. Seraypheap accused Mork of lying to them. Mork admitted she was inside the house watching television when she heard gunshots. She learned defendant was involved in the shooting and immediately left the party with her husband, her youngest son, defendant, Hoeurn, and her grandson. Mork told Seraypheap that, in the car on the way home, her husband yelled at defendant for shooting a gun.
Police canvassed the area and found six shell casings in the street between the house and the duplex. Four shotgun shells -- two live rounds and two expended rounds -- were also found in the driveway of the house where the party occurred.
Defendant was arrested and charged with assault with a firearm (§ 245, subd. (a)(2) -- count 1), shooting at an inhabited dwelling (§ 246 -- count 2), attempted murder of Lach (§§ 664, 187, subd. (a) -- count 3), attempted murder of John Doe (the unknown driver of the red Acura) (§§ 664, 187, subd. (a) -- count 4), felon in possession of a firearm (§ 12021, subd. (a) -- count 5), and negligent discharge of a firearm (§ 246.3 -- count 6). As to count 1, it was specially alleged that defendant discharged a firearm at an occupied vehicle causing great bodily injury (§ 12022.5, subd. (b)(1)). As to count 2, it was specially alleged that defendant personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). As to count 3, it was specially alleged that defendant intentionally and personally discharged a firearm (§ 12022.53, subds. (b), (c), (d) or (e)). As to count 4, it was specially alleged that defendant intentionally discharged a firearm (§ 12022.53, subd. (c)) and personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)(1)).
At trial, Mork denied ever hearing gunshots or seeing anybody shoot a gun, and denied telling Seraypheap that her husband yelled at the defendant in the car on the way home for shooting a gun. Hoeurn testified that she and her family (including the defendant) left the party when a friend told her there was some kind of a problem. Hoeurn also denied hearing or seeing anyone shooting at the party, and denied telling Seraypheap anything else about the shooting.
Near the end of the prosecution’s case-in-chief, defense counsel requested, among other things, that the jury be instructed on self-defense based on Hoeurn’s pretrial statements regarding possible shots fired from the red Acura. The court denied the request for lack of evidence. The defense rested without putting on any evidence.
With the exception of count 3, the jury returned guilty verdicts on all counts. The court declared a mistrial as to count 3, and that charge was later dismissed by the prosecution.
The court sentenced defendant to life in prison for the attempted murder of John Doe (count 4), plus 20 years for the firearm enhancement, to be served consecutive to and prior to the life sentence. The court further sentenced defendant to a consecutive five-year term for shooting at an inhabited dwelling (count 2). The court added an additional three years for the great bodily injury enhancement as to Lach, and imposed (but stayed) the middle term of four years for the gun use enhancement. As for assault with a firearm on Lach (count 1), the court imposed a one-year consecutive sentence (one-third the middle term), but stayed a four-year term for the firearm enhancement. The court imposed a three-year term for the great bodily injury enhancement as to count 2, but stayed that sentence pursuant to section 654. As for count 5, the court sentenced defendant to eight months (one-third the middle term) to run consecutively. As for count 6, the court imposed a two-year term, stayed pursuant to section 654. The total sentence imposed was an aggregate prison term of 29 years and eight months to be served consecutive to (and prior to) a term of life with the possibility of parole.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Jury Instruction on Self-Defense
Defendant contends the trial court erred in its refusal to instruct the jury on the use of lethal force in defense of a third party. In particular, he argues the trial court could have drawn an inference from the evidence that, when defendant fired at the car, he “was doing so in the reasonable belief that Ms. Hoeurn and possibly others faced great bodily injury or death.”
“‘“‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.’”’” (People v. Garvin (2003) 110 Cal.App.4th 484, 488 quoting People v. St. Martin (1970) 1 Cal.3d 524, 531.) “[T]he duty to instruct, sua sponte, in a criminal case on particular defenses and their relevance to the charged offense arises only if it appears that defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with defendant's theory of the case.” (People v. Jones (1981) 123 Cal.App.3d 83, 93-94, citing People v. Sedeno (1974) 10 Cal.3d 703, 716, italics omitted.)
In determining whether sufficient evidence supports a certain jury instruction, the court does not assess the credibility of the evidence. (People v. Middleton (1997) 52 Cal.App.4th 19, 33, disapproved on another matter in People v. Gonzalez (2003) 31 Cal.4th 745, 752, fn. 3.)
There is nothing in the record to suggest that defendant relied on the defense of self-defense or defense of others. Defendant did not testify, nor did he call any defense witnesses or put on any evidence. During closing argument, defense counsel argued that the shot that hit Lach could have come from the car; he did not argue that any of the shots fired by defendant were fired in defense of himself or others.
The record is devoid of evidence to support a defense of self-defense or defense of others. Lach told police he saw defendant fire twice into the air and then walk towards the red Acura, which had turned and stopped between defendant and Lach. Although he did not see who fired the six to eight shots that followed (one of which hit him in the leg), Lach could tell the shots were coming “from the direction[] of the vehicle” (but not from inside the vehicle) and noted that the car’s windows were rolled up. Lach’s neighbor, Logan, heard at least six or seven shots and saw muzzle flashes from across the street, not from the car. Hoeurn told detectives she saw defendant “shooting a handgun in the direction of the people in the cars.” That evidence suggests that defendant was firing on the car; it does not support speculation that defendant fired after seeing a gun in the car or being fired upon by someone in the car.
Defendant argues the fact that Hoeurn told detectives she ducked and heard gunshots she thought were coming from the car is evidence from which the jury could reasonably infer that someone in the car was shooting in Hoeurn’s direction. “Given that Ms. Hoeurn and possibly others ducked,” defendant argues, a jury could reasonably conclude defendant was shooting at the car in order to defend Hoeurn and the others. The record reflects otherwise.
Hoeurn told Seraypheap she and others ducked down after defendant shot his handgun two or three times in the direction of the cars, not before. There is no evidence that the shooting by defendant, while across the street from Lach’s duplex, was instigated by the occupants of a car, or that those occupants fired first on defendant, Hoeurn or anyone else.
In refusing the requested self-defense instruction, the court concluded there was no evidence from which “any reasonable jury could conclude that there’s a reasonable possibility . . . that the defendant either saw somebody with a gun or had for some reason shot up in the air, and then saw somebody with a gun and blazed away at them.” We conclude there was no error in the trial court’s refusal to instruct on self-defense.
II
Negligent Discharge of Firearm Not a Lesser Included Offense Of Shooting at an Inhabited Dwelling
Defendant contends he should not have been convicted of negligent discharge of a firearm because it is a lesser included offense of shooting at an inhabited dwelling. (People v. Overman (2005) 126 Cal.App.4th 1344, 1360 (Overman).) We decline to follow Overman and conclude otherwise.
In Overman, the Court of Appeal, Fourth Appellate District, Division Two, concluded that, because the crime of shooting at an inhabited dwelling (§ 246) cannot be violated without also committing the crime of negligent discharge of a firearm (§ 246.3), section 246.3 is a lesser included offense of section 246. (Overman, supra, 126 Cal.App.4th at pp. 1360-1362.) Noting that “section 246.3 involves discharge of a firearm under circumstances presenting a significant risk that personal injury or death will result,” the court concluded that “[w]hen 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,” and whether the inhabited dwelling house is occupied or not, the act “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.]” (Overman, supra, at pp. 1361-1362, italics in original.) Because both crimes “involve the intentional discharge of a firearm in a grossly negligent manner which presents a significant risk that personal injury or death will result,” the court concluded negligent discharge of a firearm is a lesser included of shooting at an inhabited dwelling. (Id. at p. 1362.)
We disagree with Overman’s conclusion. While it may be true that people generally are in or around inhabited dwellings, it is nonetheless possible to discharge a firearm at an inhabited dwelling in a manner that, although negligent for purposes of section 246.3, is not likely to create personal injury or death within the meaning of section 246. We therefore conclude section 246.3 is not a lesser included offense of section 246, and reject defendant’s contention that convictions under both statutes constitutes error.
III
Firearm Use Enhancement
Defendant contends, and the People concede, that the firearm use enhancement (§ 12022.5, subd. (a)) should have been stricken because use of a firearm is an element of shooting at an inhabited dwelling (§ 246).
There are circumstances under which “personal use” of a firearm is not an element of section 246, such as when a defendant acts as an aider and abettor. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1531; People v. Piper (1986) 42 Cal.3d 471, 475-476 [personal use of a weapon is not an element of the offense of shooting at an occupied vehicle]). Here, however, defendant was convicted of personally shooting the gun at Lach’s home. Under those facts, use of the weapon was a necessary element of the crime of which defendant was convicted. Consequently, the enhancement under section 12022.5, subdivision (a), is expressly prohibited. We therefore accept the People’s concession and direct the trial court to strike the four-year sentence for the section 12022.5 enhancement for count 2.
IV
Felon in Possession of Firearm
Defendant contends that, because the evidence is insufficient to show he “harbored multiple criminal intents when he possessed the firearm and used it in carrying out the other felonies,” section 654 prohibits separate punishment for being a felon in possession of a firearm. We disagree.
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
“Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. [Citation.] Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. [Citations.] On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense. [Citations.]” (People v. Venegas (1970) 10 Cal.App.3d 814, 821; accord, People v. Bradford (1976) 17 Cal.3d 8, 22 and People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.)
We review the trial court’s determination of whether the defendant held multiple criminal objectives for substantial evidence. (People v. Simon (1989) 208 Cal.App.3d 841, 852.)
Lach testified that he saw defendant fire the gun twice into the air after becoming upset that several people at the party were trying to keep him away from the argument that was taking place between some of the partygoers. The second round of shooting came after the red Acura drove down the street and turned and stopped in front of Lach’s duplex. The act of firing shots into the air during the argument between partygoers was distinctly antecedent and separate from defendant’s subsequent act of approaching and firing on the car, regardless of the fact that the two series of acts were not on different days or at separate sites. “[A]n ex-felon who owns, possesses, or has custody or control of a firearm commits a felony” under section 12021, subdivision (a). (People v. Ratcliff, supra, 223 Cal.App.3d at p. 1410.) We conclude there is substantial evidence of possession separate and distinctly antecedent to defendant shooting at the car and the duplex. (People v. Venegas, supra, 10 Cal.App.3d at p. 821.)
DISPOSITION
The four-year sentence enhancement for personal use of a firearm (§ 12022.5, subd. (a)) related to count 2 is stricken. The trial court is directed to prepare an abstract of judgment amended accordingly and forward a copy of the amended abstract to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HULL, J., CANTIL-SAKAUYE, J.