Filed 10/27/17 P. v. Addson CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL EUGENE ADDSON,

Defendant and Appellant.
C080850

(Super. Ct. No. 14F00329)





A series of robberies at Auto Zone and O’Reilly Auto Parts stores led to the death of one employee and the arrest of defendant Michael Eugene Addson. An amended information charged defendant with felony murder (count one); attempted second degree robbery (count two); possession of firearm by a felon (counts three, five, eight & eleven); and armed second degree robbery (counts four, six, seven, nine & ten). (Pen. Code, §§ 187, subd. (a); 664/211; 29800, subd. (a)(1); 211/12022.53, subd. (b).) Defendant entered a plea of no contest on several counts; a jury found defendant guilty on the remaining counts. The court sentenced defendant to life without possibility of parole plus 25 years to life, plus 35 years. Defendant appeals, arguing instructional error, the court erred in not declaring a mistrial, sentencing error, and the abstract of judgment should be amended. We shall direct the trial court to correct the abstract of judgment. In all other respects we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Over several months, two Auto Zone stores and two O’Reilly Auto Parts stores were robbed. After witnesses identified defendant he was arrested and charged with felony murder, attempted second degree robbery, possession of a firearm by a felon, and armed second degree robbery. Defendant entered a plea of no contest to counts three, five, eight, and eleven. A jury trial followed on the remaining counts. The following evidence was introduced at trial.
July 11, 2013, Auto Zone Armed Robbery
On July 11, 2103, Duane Uhl was working as a parts manager at Auto Zone on Watt Avenue. That morning an African-American male, later identified as defendant, entered the store. Uhl approached defendant and offered to help him find air filters on the computer. Defendant followed Uhl behind the counter, pulled out a gun, and told Uhl he was being robbed.
Defendant then led Uhl to the back office, pointed the gun at the safe, and told Uhl to open it. Uhl opened the safe with his key, took out money, and handed it to defendant. Defendant told Uhl to open the second safe compartment, which contained cash drops. Uhl did not have the key to the second compartment, which defendant disputed. Defendant told Uhl to open the cash registers, but Uhl was too nervous to type in his password. Angrily, defendant told Uhl to hurry up, but Uhl was unable to open the registers.
Before he left, defendant told Uhl to take the handle off the phone and give it to him. Defendant put the money in a bag and told Uhl to get in a closet. Uhl begged defendant not to shoot him. Defendant told him he was not going to shoot him and closed him in the closet.
After defendant left the store, Uhl called 911 and told the operator the suspect was armed with a silver Colt Combat Commander .45 handgun. Uhl had been in the military and thought he recognized the gun. He described the suspect as around 25 years old, six feet tall, thin, and wearing black. Approximately $1,300 was taken from the store. Cell phone records revealed a phone connected to defendant sent signals to cell towers in the Auto Zone neighborhood at the time of the robbery.
September 21, 2013, Auto Zone Armed Robbery
On September 21, 2013, Nicholas White, David Ponce, Alfred Montez, and Josh Kalista were working at the Auto Zone on Fair Oaks Boulevard. That afternoon Kalista walked into the back office with a man, later identified as defendant. Kalista told them they were being robbed. White, believing it was a joke, began to laugh. Defendant took out a gun and said he wasn’t playing and this was real.
Defendant pointed the gun at White and Montez and told White to open the safe. He told the others to stand in the corner where he could watch them. Defendant also pointed the gun at Ponce and said, “Go ahead and take a good look” at his face.
Defendant told White to open the safe, take out the money, and put it in a bag. White did so. Defendant wanted both sections of the safe opened, but White could only open one compartment, because the second was on a timer. Defendant pointed the gun at White and told him to hurry up or he would shoot him.
Subsequently, defendant directed the employees to empty the store cash registers. Defendant pointed the gun at them as they opened the registers. He told them to hurry up, “I’m not playing.” When Montez dropped a $20 bill on the floor, defendant put the gun in his face and giggled. The gun touched Montez’s cheek. Defendant left with the money.
A frightened White called 911 and described the suspect as a black male, midtwenties to early thirties, six feet tall, and 130 pounds. The man carried a semiautomatic pistol. He fled on foot carrying a Bank of America cash bag containing $1,196.04. After officers arrived at the scene, White said he would be able to identify the suspect. White said the robber was tall and thin and told them to “put the money in the bag.” Cell phone records showed a phone connected to defendant sent signals to cell towers in the immediate area at the time of the robbery.
October 12, 2013, O’Reilly Auto Parts Robbery
On October 12, 2013, Chris Laporta and Jesse Hall were working at O’Reilly Auto Parts on Elkhorn Boulevard. That evening, they noticed an African-American man, later identified as defendant, enter the front door. Defendant was not wearing gloves and he opened the door with his elbows, not his hands. He walked through the store as though making sure there was no one else there. Defendant approached Laporta and Hall at the counter and said he was robbing them. He held a semiautomatic pistol pressed against his leg pointing at the floor. Laporta and Hall put their hands up.
Defendant told Hall to open the register and give him the money. He gestured with the gun, but did not point it at Hall. Hall put the money in a bag. Defendant was very calm.
Defendant ordered Laporta and Hall to take him to the safe. Laporta opened the safe and took out the money. When Laporta failed to open the safe’s second compartment, defendant became upset and demanded that it be opened. Laporta said there was no money in the second compartment and defendant began waving the gun around and yelling. After Laporta found the key, he opened the safe and gave defendant its contents. Defendant told Laporta and Hall to stay in the office and not to call the police.
Laporta called 911 and described the robber as a black male in his twenties, six feet to six feet five inches tall, and slender. He wore a dark jacket with a chevron patch. When officers responded, Laporta told them he might have seen the man outside the store prior to the robbery. A total of about $2,000 was taken from the store.
Cell phone records revealed that a phone associated with defendant sent a signal to cell phone towers near the site of the robbery.
January 9, 2014, O’Reilly Auto Parts Murder and Attempted Robbery
On January 9, 2014, Marc Zhuchenko, Ray Riffel, and Anthony Anderson were working at O’Reilly Auto Parts on Elkhorn Boulevard. That evening, Anderson saw an African-American man, later identified as defendant, enter the store. Defendant lifted up his shirt and pulled out a gun. He told everyone to go to the back room.
Anderson began to walk to the back of the store. Defendant again told everyone to go and nudged Zhuchenko on his right side in the kidney area with his gun. Zhuchenko spun around and Anderson saw him raise his arm. A few seconds later a shot rang out and defendant and Zhuchenko fell to the floor. Anderson heard a metallic click sound as the pair fell. Defendant jumped up and ran out the door.
Riffel walked towards the front of the store during the struggle. He saw Zhuchenko and defendant struggling and heard a single gunshot. According to Riffel, “it almost seemed as if, uh, Marc [Zhuchenko] was trying to either protect us or he was startled from behind and he just basically reacted.” After Riffel heard a pop and saw a flash he ducked behind a shelf. He did not see the robber fall, but did see the robber look down, turn around, and run away.
Both Anderson and Riffel called 911. Anderson described the robber as a black male wearing black jeans, hoodie, and hat. He did not wear gloves and did not conceal his face. Anderson believed he could identify defendant, but was unable to identify anyone in a photo lineup. Riffel did not see the gun or the robber’s face.
Testimony of Danielle Garner and Letitia Powell
During this time, defendant was involved romantically with Danielle Garner. They met during middle school and began dating in 2011. From July 2013 through January 2014 defendant lived with his mother in Vallejo, but frequently stayed at Garner’s apartment in North Highlands. Garner saw him almost every day.
On the afternoon of January 9, 2014, Garner’s friend Letitia Powell and Powell’s two children went to Garner’s apartment for Powell’s birthday. Defendant was present as they drank wine and talked. Defendant told Garner he was going to get some marijuana and asked to borrow her cell phone. He also borrowed Powell’s car.
Defendant was gone for a long period of time and Powell became concerned because it was getting late. Powell texted defendant on Garner’s phone and he replied he was on his way back. Thirty minutes later defendant had not appeared and did not respond to texts or calls.
When defendant arrived he was in a panic. Garner followed him into a bathroom and saw his face was “gushing out with blood.” She saw a black gun on the counter. Powell knocked on the door asking for her keys. When Garner came out of the bathroom to return the keys, she was huffing and puffing and seemed frustrated.
Garner asked Powell if she could take defendant to the hospital. When Powell asked what was going on, Garner said she did not know. Defendant changed his clothes and shoes, which were bloody. He put clothes in a bag and into Powell’s car. Powell got into the driver’s seat, Garner in the front passenger seat, and defendant and Powell’s children in the back. Garner believed defendant’s injuries required immediate hospitalization; he complained of a headache and could not see. However, defendant did not want to go to the hospital; he wanted to go to his mother’s house.
Powell testified defendant did not want to go to the hospital because he was going to be in trouble. Defendant asked Powell to take him to a hospital in Vallejo where his mother worked. Although Garner offered to pay for the additional gas, Powell decided it was too far because defendant was bleeding and she did not want him to lose consciousness. Instead, Powell decided to take defendant to the nearest hospital. As they drove, Garner called her cell provider and reported her cell phone lost since defendant returned without it.
Police Investigation
That same evening, Sacramento County Sherriff’s Department Sergeant Lindy Culp, dispatched to the O’Reilly Auto Parts in response to a report of a shooting, found other deputies performing cardiopulmonary resuscitation (CPR) on Zhuchenko. Zhuchenko lay on the floor behind the counter. A cell phone and shell casings lay nearby and a folding knife was on the counter next to the Zhuchenko. Crime scene investigators collected evidence including the cell phone, knife, shell casing, and blood samples.
As Zhuchenko was transported to the hospital, officers forwarded information about the suspect alerting hospitals to be on the lookout for a male with stabbing injuries. At the emergency room, Sergeant Culp observed a visible gunshot wound in Zhuchenko’s left rib cage and another wound above his hip on his right side. He also saw a bullet in the fabric in Zhuchenko’s work shirt. Zhuchenko was pronounced dead that evening.
Autopsy
Dr. Gregory Reiber performed Zhuchenko’s autopsy and found he died from massive blood loss due to a gunshot wound. The bullet entered his chest perforating the diaphragm, aorta, spleen, large intestine, and right kidney, and exited his lower back. Dr. Reiber testified the chances of surviving such a gunshot wound are very poor, regardless of how swiftly the victim receives emergency treatment.
The entry wound showed evidence of a shot fired at close range. Dr. Reiber estimated the gun was inches away from Zhuchenko when fired. Zhuchenko also had a cut on his finger consistent with a possible offensive-type wound of a person holding a knife.
Arrival at the Hospital
When Powell and her passengers arrived at the hospital, Garner told Powell to tell hospital staff she picked defendant up off of Mack Road. Garner asked Powell to throw the bag defendant left in the car away.
Hospital staff notified the Sacramento Police Department that a person of interest had come to the emergency room. Sacramento Police Officer Jesus Trejo spoke with defendant; Deputy Kelly Bunn of the Sacramento County Sheriff’s Department spoke to Garner and Powell.
Powell told Deputy Bunn she had received a cell phone call from defendant asking to be picked up. Powell picked defendant up in the area of Mack Road and Center Parkway where he had gotten into a fight. Deputy Bunn also interviewed Garner, who confirmed defendant had called to be picked up. Defendant had gotten into a fight on Mack Road after he asked someone for a cigarette. Garner was unsure where they had picked up defendant and defendant did not tell them what happened, just that he needed to go to the hospital. At trial, Garner conceded that this was the story defendant had instructed her to tell the police.
Defendant’s Interview at Hospital
Officer Trejo questioned defendant at the hospital. He asked defendant how he sustained the bloody injury to his face. Reluctantly, defendant told Officer Trejo he left Powell’s house to meet a friend. After the meeting, defendant ran into a man smoking a cigarette. Defendant asked him for a cigarette and the two got into an argument. The man grabbed defendant in a headlock and defendant felt blood dripping from his face. Defendant ran back to Powell’s house.
Defendant was not sure where the attack took place. The man who stabbed him was a black male in his midtwenties, 5 feet 11 inches tall, 145 to 150 pounds, wearing a black hoodie and a red baseball cap. Officer Trejo forwarded the report to Deputy Bunn.
Crime Scene Investigation
Crime scene investigator Deputy Pasquale Cignarella examined defendant at the hospital. The right side of defendant’s face was swollen and bruised. A laceration on his nose required stitches. Deputy Cignarella took gunshot residue samples from four areas on defendant’s hands.
After defendant was transferred to another hospital, Deputy Cignarella collected a buccal swab. Deputy Cignarella booked the gunshot residue kit and buccal swab into evidence and submitted them for processing.
Criminalist Jason Hooks examined the gunshot residue kit and concluded the results were consistent with defendant firing a gun, being in the vicinity of a fired weapon, or having handled a fired weapon or ammunition. Hooks testified that gunshot residue is easily lost; the majority of particles will be lost within four to six hours of the shooting.
Garner Interview
Detectives later questioned Garner at the sheriff’s station. Initially, Garner related the same story about defendant getting into a fight about a cigarette. However, after detectives confronted her about the cell phone evidence, Garner offered a different story. According to Garner, she and defendant talked in the bathroom at Powell’s house about him firing a gun. She saw a semiautomatic handgun on the counter. Defendant told Garner he was arguing and tussling with it when it went off. Defendant wanted her to take the gun, but she refused. She told detectives they would find the gun in the kitchen where defendant left it.
Powell Interview
Another pair of detectives interviewed Powell at her apartment. Initially Powell repeated the story about a fight, but then admitted what happened when confronted by Garner’s statements. Powell said defendant told her “I’ll do all the talking.” She overheard defendant and Garner and thought defendant had a gun based on him saying “they might come here.” Powell saw defendant put something in a towel in the kitchen.
Detectives, with Powell’s permission, looked at the text messages and phone calls on her cell phone. The test messages included several between Garner’s phone and Powell’s phone. There were several exchanges and then a series of calls from Powell’s phone to Garner’s phone that were not returned.
Search of Powell’s Car and Apartment
With Powell’s permission, detectives searched her car and she directed them to the dumpster where she had thrown the bag of clothes. O’Reilly Auto Parts clerk Anderson identified the hoodie from the bag as matching the clothes worn by the robber. O’Reilly Auto Parts manager Riffel stated the hoodie was the same type of jacket as that worn by the robber.
At Powell’s apartment, detectives found a Ruger model P89 nine-millimeter handgun inside the stove. The gun had no rounds in the chamber, but had seven live rounds in the magazine. Detectives discovered a pair of jeans and sneakers with apparent blood stains on the bedroom floor. They also found apparent blood stains on the bathroom sink and counter.
Forensics—DNA
Forensic identification specialist Rhonda Johnson tested the Ruger for fingerprints, but found no usable prints. She also swabbed the gun for contact DNA and the swabs were booked into evidence. Criminalist Bruce Moran performed a forensic examination on the Ruger and concluded it was the weapon that fired the bullet found in Zhuchenko’s shirt and the shell casing found on the floor. O’Reilly Auto Parts clerk Anderson identified the Ruger as resembling the weapon he saw the robber pull out of his waistband.
Criminalist Nikki Sewell analyzed the samples taken from the front door at the murder scene, the sidewalk, and the cell phone found by Zhuchenko’s body. She determined the samples from the sidewalk and front door were blood. However, the substance on the cell phone could not be confirmed to be blood. The genetic profile of the DNA on the swabs was the same as the reference profile from defendant. The swab from the Ruger revealed the DNA profile of the major contributor was the same as the reference profile from defendant. DNA from a minor contributor was also located on the weapon.
Cell Phone Records
Records for seven cell numbers connected to defendant and registered under his mother’s name were admitted at trial. The cell phone records revealed that one pinged off cell towers in the area of the Watt Avenue, Fair Oaks Boulevard, and Elkhorn Boulevard at the time each crime occurred.
Identifications
Garner, at trial, viewed surveillance video from the first robbery at the Auto Zone. She identified defendant from the video. Garner also identified the phone found at O’Reilly Auto Parts as the one defendant borrowed the day of the last robbery.
After defendant’s arrest, Detective Paul Biondi created a lineup of six photos, including one of defendant. Detective Biondi showed Uhl, the parts manager from the initial Auto Zone robbery, the lineup and Uhl identified defendant as the robber. However, Uhl said he was not 100 percent sure. At trial, Uhl testified he was pretty certain in his identification. Detective Biondi also showed Uhl a photo of the Ruger and Uhl said, “Holy crap, yep, it looks like the same gun.”
Detective Biondi showed White, a clerk from the second robbery, the lineup. White had seen a news report on another auto parts store robbery and the photo of the suspect looked like the same man who robbed his store. Although White identified defendant, he was not sure. White identified the photo of the Ruger as looking similar to the gun used in the robbery.
Detective Bondi also showed Laporta, a clerk from the third robbery, the lineup. Laporta identified defendant’s photo and said he thought it was the robber. However, when shown a photo of the gun found in Garner’s stove, Laporta did not think it looked like the same gun. At trial Laporta identified the Ruger as looking like the gun used in the robbery, but he could not be sure.
Hall, another clerk from the third robbery, was unable to identify anyone when Detective Bondi showed him the lineup. Nor did Hall recognize defendant at trial. Hall said the photo of the gun was similar to the gun used in the robbery.
Detective Bondi also showed Montez, the manager from the second robbery, the lineup. Montez identified defendant. He also identified defendant at trial and the Ruger used in the robbery.
Defense
Defendant testified in his own defense. Although he admitted shooting Zhuchenko, defendant testified the shooting was accidental. He did not enter the O’Reilly Auto Parts to rob the store, but to warn employees about an armed man outside.
The night of the shooting, defendant was staying with Garner in North Highlands. He borrowed Powell’s car to pick up marijuana at a friend’s house. Since his phone wasn’t working, he took Garner’s phone. His friend lived across from the O’Reilly Auto Parts on Elkhorn Boulevard.
Defendant parked across the street from his friend’s apartment. While walking down the street, defendant saw an African-American man smoking a cigarette. He asked if the man could spare a smoke. The man was rude and obnoxious and pointed him toward the store. The two got into a verbal exchange and defendant walked away.
Defendant went to his friend’s apartment, but he was not home. As he walked back to Powell’s car, he heard someone yell “check it out.” The man he had seen earlier was standing near the O’Reilly Auto Parts. The man came toward him and said, “who you calling a bitch?” Defendant responded, “You heard what I said.” Defendant was not afraid because he had his gun in his waistband.
The man pulled out a gun from his hoodie, but did not point it at defendant. He said, “Well show me then.” Defendant did not pull out his gun because “that would have been suicide.” He put up his hands, backed up, and went into the auto parts store. As he entered he pulled out his gun because he “didn’t know what he was gonna do.”
Once inside, defendant looked but did not see the man outside. When an employee asked if he needed help, defendant told him to “get back.” He did not intend to rob the store, but only to warn about the man outside with a gun.
Defendant walked up to the counter to tell Zhuchenko to get out of the way. Zhuchenko was on the telephone with his back to defendant. Defendant approached Zhuchenko from behind and asked if he could get out of the way and that a man had pulled a gun on him outside. Zhuchenko looked at defendant, “turned his nose up” at defendant, and turned back around. Defendant walked between the counters using them as a shield. He looked out the window, but saw no one.
Zhuchenko hung up the phone and then without warning stabbed defendant in the face. Defendant did not see the knife but felt it. He did not know he had been stabbed until he got back to Garner’s apartment.
Defendant put his hand to his face as Zhuchenko tried to get the gun. They struggled for a few seconds before the gun went off. Defendant did not intentionally pull the trigger. They continued to struggle after the gun went off and then both fell to the ground. Defendant got up and realized he was bleeding; he thought he had been shot in the face. He had not seen any blood during the struggle.
Defendant ran out of the store and in the direction where the man outside had been standing. He was not thinking about the man being armed. He did not think to call 911, but drove back to Garner’s apartment.
At the apartment, defendant rinsed the blood off his face and saw his cheek was cut. Garner told him he needed to go to the hospital. Defendant then realized he had lost Garner’s cell phone. He did not answer Powell’s calls and texts because he had not heard them. Defendant put the gun in Garner’s stove for safekeeping. After he changed clothes he did not put them in a bag or tell Powell to throw them away.
According to defendant, it was he who decided to go to the nearest hospital. He lied to investigating officers at the hospital and made up a story of a fight over cigarettes. He denied knowing Garner or being at her apartment because he did not want to get into trouble for violating a restraining order. He did not coach Garner or Powell on what to tell the police. Defendant lied to the police because he did not want to get in trouble for possessing a firearm. He had no idea Zhuchenko had been shot or injured.
The knife punctured defendant’s eye. He has had vision problems since the incident and now wears glasses.
Defendant had prior convictions for second degree burglary in 2007 and another felony in 2012. However, he denied committing the three other parts store robberies. His cell phone pinged off towers near the crimes because he must have been passing through the area.
Because of his felony conviction, defendant was not allowed to possess a firearm. However, he had the Ruger for a year and a half prior to the shooting. Defendant had the gun to protect himself because he had problems with gang members. He also needed to protect himself when purchasing drugs.
Verdict and Sentencing
The jury found defendant guilty on all the remaining counts and found all firearm enhancements and the special-circumstance allegation true. The court sentenced defendant to life without the possibility of parole plus 25 years to life plus 35 years; life without possibility of parole for felony murder; plus 25 years to life for personally discharging a firearm causing death; the upper term of five years consecutive for second degree robbery; one year consecutive for each of the four remaining second degree robbery convictions; eight months consecutive for each of the four firearm possession convictions; 10 years for the firearm use enhancement as to count four; and three years four months for each of the firearm use enhancements as to counts six, seven, nine, and ten. The court imposed and stayed pursuant to section 654 the upper term of three years for attempted robbery and the associated firearm use enhancement. Defendant filed a timely notice of appeal.
DISCUSSION
I
Failure to Instruct on Lesser Included Offenses
Defendant argues his convictions for the murder and attempted robbery of Zhuchenko should be reversed because the court erred in failing to instruct sua sponte on second degree murder and voluntary manslaughter as lesser included offenses. In the alternative, defendant contends counsel performed ineffectively in failing to request these instructions.
Background
The original information, filed November 13, 2014, charged defendant with felony malice aforethought murder of Zhuchenko, and alleged a felony-murder special circumstance based on attempted robbery. The information also charged one count of attempted robbery of Zhuchenko. Just prior to trial, on September 2, 2015, the People filed an amended information alleging felony murder of Zhuchenko during the course of an attempted robbery. The court asked defense counsel if he objected to the filing of the amended information; counsel replied he did not. The court granted the motion to amend, stating, “And it appears that it limits Count 1 to felony murder as opposed to malice aforethought.”
The court instructed the jury on first degree felony murder based on attempted robbery. The court gave no instructions on lesser included offenses.
Discussion
The trial court must instruct on all lesser included offenses which are substantially supported by the evidence, whether or not requested by defense counsel. Included in this duty is an obligation to instruct on lesser included offenses when the evidence raises a question as to whether the greater, charged crime has been proven and there is substantial evidence that only a lesser included crime was committed. If the trial court fails to instruct on the lesser included offense, we reverse only if, after considering the entire record, we find a reasonable probability that the error affected the outcome of the trial. (People v. Breverman (1998) 19 Cal.4th 142, 154, 165.) However, the existence of any evidence, “ ‘no matter how weak,’ ” will not justify instructions on a lesser included offense. (Id. at p. 162.) Instead, such instructions are required only if the evidence that defendant is guilty of the lesser offense is “ ‘substantial enough to merit consideration’ ” by the jury. (Ibid.)
An offense is considered a lesser included offense if it satisfies one of two tests. The elements test is satisfied if the statutory elements of the greater offense include all the elements of the lesser. If so, the greater offense cannot be committed without committing the lesser. The accusatory pleading test is satisfied if the facts actually alleged in the pleading include all the elements of the lesser offense, such that the greater offense charged cannot be committed without committing the lesser offense. (People v. Banks (2014) 59 Cal.4th 1113, 1159-1160, overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363; People v. Cook (2001) 91 Cal.App.4th 910, 918.)
Under the accusatory pleading test, second degree murder and voluntary manslaughter are lesser included offenses of first degree malice aforethought murder, but are not lesser included offenses of felony murder. (People v. Randle (2005) 35 Cal.4th 987, 994, overruled on other grounds by People v. Chun (2009) 45 Cal.4th 1172; People v. Cavitt (2004) 33 Cal.4th 187, 197; People v. Seaton (2001) 26 Cal.4th 598, 672.)
Defendant argues second degree murder and voluntary manslaughter are lesser included offenses of felony murder under the statutory elements test. Both parties acknowledge the Supreme Court has not decided this issue. Both parties also present compelling arguments as to why or why not second degree murder and voluntary manslaughter are lesser included offenses.
Even assuming second degree murder and voluntary manslaughter are lesser included offenses of felony murder, the trial court must only instruct if substantial evidence was presented that would allow a reasonable jury to find defendant guilty of second degree murder or voluntary manslaughter, but not felony murder. We find no substantial evidence in the present case.
At trial, the survivors of the January 9, 2014, robbery testified as to the events surrounding the robbery and murder. Anderson testified defendant entered the store, pulled a gun out of his waistband, and told the store employees to get to the back room of the store. Defendant walked up to Zhuchenko, nudged him from behind with the gun, and told him to get to the back room. Zhuchenko spun around and his arm came up with a knife. A brief struggle followed and a shot rang out. Another employee, Riffel, walked to the front of the store as the struggle took place. He saw the pair fighting and testified “It almost seemed as if [Zhuchenko] was either trying to protect us or he was startled from behind and he just basically reacted.” Riffel heard a pop and saw a flash and then defendant took off running.
Employees involved in the two prior robberies described a similar scenario: defendant entered the store, pulled out a gun, and ordered the employees to the back of the store where the safe was located.
Defendant testified he did not enter the auto parts store attempting to rob it, but was only trying to warn employees about the man loitering outside. However no other evidence supports defendant’s claim. Upon entering the store defendant pulled out a gun; he did not warn the employees of the man outside. Instead, at gun point, he ordered the employees to the back of the store.
Defendant stated he told Zhuchenko a man had pulled a gun on him outside the store and Zhuchenko ignored him. Zhuchenko abruptly stabbed defendant in the face and tried to get his gun. Defendant did not fire the gun and did not even know Zhuchenko had been shot. Believing he had been shot, defendant ran outside. He returned to Garner’s apartment, hid the gun, and refused initially to go to the hospital. Subsequently defendant lied to the police about the incident. On appeal, defendant stresses that “[t]here was no evidence appellant demanded money or property from anyone in the store.”
We find no evidence sufficient to warrant an instruction on voluntary manslaughter (specifically argued by defendant as imperfect self-defense or sudden quarrel/heat of passion killing) or second degree murder. Second degree murder requires a lack of premeditation and deliberation. (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Defendant contends there was little or no evidence of either in his case. According to defendant: “The testimony of the prosecution’s witnesses and appellant showed that the gun discharged after Zhuchenko stabbed appellant without warning, and while the two men were struggling over the gun, which supported a finding that appellant did not fire the gun with deliberation and premeditation. Although appellant testified he did not pull the gun’s trigger or fire the gun intentionally, the jury could reasonably infer that the gun did not fire by itself and that in the heat of the moment, appellant did intentionally fire the gun, whether he recollected doing so or not. Harboring a reasonable doubt that appellant attempted to rob Zhuchenko, a jury properly instructed with the lesser included offense of second degree murder was far more likely to return a verdict of second degree murder than felony murder on the basis that the killing was not deliberate and premeditated.” But this passage from the briefing argues the jury could properly consider, in support of defendant’s argument, that which defendant himself denied—that he intentionally fired the gun. Defendant’s testimony, which was the only evidence supporting his version of the shooting, was that he did not fire the gun, intentionally or otherwise. Fully credited, the evidence tendered by defendant was that he did not shoot the victim, period, and the fact that the victim was shot and killed was somehow an accident. There was no evidence of an intentional shooting that was neither deliberate nor premeditated, as required for second degree murder.
Defendant also argues there is evidence he shot Zhuchenko in the heat of passion or in self-defense to support an instruction on voluntary manslaughter. Defendant argues his testimony indicated Zhuchenko caused the provocation by stabbing defendant as defendant tried to warn him. But voluntary manslaughter under any theory requires an intentional killing, whether mitigated by provocation or an unreasonable belief of imminent danger. Here, defendant denied firing the gun.
After reviewing the trial testimony, we find no evidence sufficient to warrant an instruction on voluntary manslaughter or second degree murder. Despite defendant’s attempt to formulate scenarios to support the instruction, the evidence reveals two scenarios: defendant shot Zhuchenko during an armed robbery; or the gun accidently discharged when the two men struggled. In neither of these scenarios is a finding of second degree murder or voluntary manslaughter appropriate. The first scenario is felony murder and the second requires an intentional shooting as well as other elements completely unsupported by the evidence, as we have explained.
II
Motion for a Mistrial
After the trial court granted the prosecution’s in limine motion to use defendant’s prior conviction of child abuse for impeachment purposes, the court agreed that the conviction should be sanitized but left it to counsel to formulate a generic description of the prior. During trial, the prosecution elicited testimony from defendant that he was under a protective order not to have contact with Garner’s three-year-old daughter. Defendant moved for a mistrial based on this testimony, asserting that it violated the in limine ruling; the court denied the motion. Defendant argues the court prejudicially erred in denying the motion.
Background
The prosecution, before trial, moved to impeach defendant with prior convictions including a 2012 conviction for felony child abuse. Defense counsel asked the conviction be excluded as unduly prejudicial under Evidence Code section 352. The court admitted the child abuse conviction as a crime of moral turpitude relevant to defendant’s credibility, but offered to entertain a defense request to sanitize the conviction. Defense counsel requested a meeting with the prosecution to reach an agreement about describing the offense as a “felony conviction involving moral turpitude.” The court asked to be informed if any issue arose in that regard.
Defendant testified in his own defense. He admitted being convicted of a 2007 felony verdict and “in 2012 of another felony involving moral turpitude.” During cross-examination, the prosecution asked defendant about his post-arrest interview with detectives. Defendant admitted he lied about how he was stabbed. The prosecution asked defendant why he had not mentioned Garner during the interview although he stated he was in Powell’s apartment. Defendant testified he was trying to conceal his relationship with Garner because “me and Danielle had an incident in 2012 and it was supposed to be a keep away.” When the prosecution asked if this was the reason defendant distanced himself from Garner, defendant said it was.
The prosecution questioned defendant about owning the Ruger nine-millimeter handgun.
Prosecution: “Now, at the time, over a year before this incident of January 2014, Danielle’s kid was living with her?
“[Defendant]: Are you asking me a question or --
“[Prosecution]: You know that; don’t you?
“[Defendant]: So could you repeat that again?
“[Prosecution]: At the time you bought this gun, when you asked Daniele to help you pay for the gun, her child, her daughter . . . was living with her at home?
“[Defendant]: Yes, she was living with her at her home, Elk Grove.”
On redirect, defense counsel asked about defendant’s relationship with Garner.
Defense Counsel: “You also were asked questions by [the prosecution] . . . about your relationship with Danielle and how you had not been completely honest with the officer in describing that. Do you remember this line of questioning this morning?
“[Defendant]: Yes, I do.
“[Defense Counsel]: Did you -- were you and Danielle involved in some prior incident in which there was a no contact order issued by some court?
“[Defendant]: Yes, there was.
“[Defense Counsel]: And in spite of that no contact order, did you and Danielle still continue to see each other?
“[Defendant]: Yes, we did.
“[Defense Counsel]: Were you concerned that if you admitted just being around Danielle that you would also find yourself in trouble and possibly going to jail based on that?
“[Defendant]: Yes. I believe I was gonna possibly be in trouble for being around Danielle.
“[Defense Counsel]: Okay. Is that why you were kind of sidestepping the questions about your relationship with her and how long you had known her, et ceterea?
“[Defendant]: Yes. That and being at her apartment.”
Prior to recross-examination, there was an unreported bench conference, which the trial court later discussed. The prosecution questioned defendant about his prior testimony about hiding his gun in Garner’s stove because it was a safe place.
Prosecution: “As a matter of fact, the stay away order that was between you and Danielle wasn’t . . . protecting Danielle. It was protecting her three-year-old daughter from you. Right?
“[Defendant]: It was protecting me from all of them.
“[Prosecution]: The condition of your probation was that you could have no contact whatsoever with [Garner’s daughter] right?
“[Defendant]: I was under the impression of it was to protect none of -- [Garner’s daughter], Danielle, the father, none of the family.
“[Prosecution]: When you accepted the conditions of probation in court in January of 2013, you were explained that one of the conditions was that you could have no contact with [Garner’s daughter], and it was provided to you in writing. Do you remember that?
“[Defendant]: I remember it was explained to me in court, and like I said . . . what I got from it was that I have no contact of [sic] the victim and family.
“[Prosecution]: Do you want to see a copy of it?
“[Defendant]: I don’t mind seeing a copy of it.
“[Prosecution]: Do you want to see it?
“[Defendant]: I don’t mind seeing a copy of it if you want to show me.
“[Prosecution]: Okay.
“[Defense Counsel]: Can I have a discovery page?
“[Prosecution]: At this time -- I’m going to rephrase that question. [¶] Was it your understanding that [Garner’s daughter] wasn’t living with Danielle at the time of this offense January 9th --
“[Defendant]: Yes.
“[Prosecution]: -- 2014? [¶] And was it your understanding that you were not to have any contact with [Garner’s daughter] or members of her family without prior permission from the Probation Department?
“[Defendant]: Yes.
“[Prosecution]: Okay. And that included Danielle?
“[Defendant]: It included her family members.
“[Prosecution]: And --
“[Defendant]: Danielle is their mother, so it’s her family member, right?
“[Prosecution]: Okay. But Danielle at this time did not have custody of [her daughter], right?
“[Defense Counsel]: Well, I’m going to object. That’s irrelevant.
“The Court: Overruled.
“[Defendant]: No. Of January 9th, if you’re asking, no.
“[Prosecution]: Somebody else had custody of her?
“[Defendant]: Yes.
“[Prosecution]: And you saw and actually lived with Danielle on a regular basis at that time?
“[Defendant]: From that point on -- are you talking about January 9th or --
“[Prosecution]: January 9th.
“[Defendant]: Yes.
“[Prosecution]: Okay. So there was nothing that prevented you from telling the officers that you were living with Danielle at her apartment?
“[Defense Counsel]: I’m going to object as argumentative.
“The Court: Overruled.
“[Defendant]: Yes, it was.
“[Prosecution]: Those are all the questions I have.”
After the jury was excused, defense counsel moved for a mistrial based on the questioning about the no-contact order with Garner’s daughter. Defense counsel stated that at the sidebar conference the prosecution said he believed that defense counsel opened the door regarding defendant’s belief he was to have no contact with Garner. The prosecution represented to the court that the probation order required defendant to stay away from the daughter and not from Garner. Defense counsel argued the prosecution’s questioning violated the in limine ruling and could leave the jury with the impression that defendant was on probation for some incident “that disallows contact with a three-year-old girl.” The prosecution stated an intent to prove Garner no longer had custody of her daughter and therefore was not included in the no-contact order and “there was no reason for him to hide behind what the defense really portrayed as something like a domestic violence incident between him and Danielle.”
The court described the earlier side bar conference, discussed the objected to questions, and denied defendant’s motion for a mistrial. Defendant, the court noted, testified he did not want to tell investigating officers about Garner’s apartment or the he was staying there because he was not supposed to have contact with her. According to the court, “That raised the issue for the People. It was their understanding that the protective order was protecting not Danielle, but the child.” Therefore, the court permitted the prosecution to question defendant regarding the protective order.
During the questioning, the prosecution got a copy of the order and realized it included the child and the child’s family members. The court concluded: “I don’t think there was any intentional misrepresentation. [¶] I think that after reviewing the protective order, in order to show it to the defendant, [the prosecution] then asked the question more clearly as far as being precluded from being around the child and her family.” As for the questions regarding whether Garner had custody of the child and if defendant had any reason to stay away from Garner and her apartment, the court found the questioning proper. The court found no prejudice: “[T]here was nothing as far as the details of the crime or the age of the child or anything else that would cause any particular prejudice under these circumstances.” The court denied the motion for a mistrial.
Discussion
Defendant argues the trial court abused its discretion in not granting his mistrial motion. According to defendant, an admonition would not have cured the prejudice to defendant.
A trial court should grant a motion for mistrial only when the opportunity for a fair trial has been irreparably lost and prejudice cannot be cured by admonition or instruction. We review a denial of a motion for mistrial for an abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 573.)
Here, defendant agrees that the prosecution did not intentionally misrepresent that the no-contact order covered only Garner’s daughter when he sought permission to cross-examine defendant about the order. However, defendant argues the trial court should have granted the motion because inadmissible evidence was admitted which incurably prejudiced his defense.
According to defendant, “Although the jury was not specifically told the basis of appellant’s 2012 conviction, the jury knew it was a felony of moral turpitude, because appellant had already testified he had such a 2012 conviction. The jury would have realized appellant was on probation from this offense, which had been denominated a crime of moral turpitude, as appellant’s last conviction was in 2012, and he was arrested in the instant case in January 2014. The jury would have thought, at a minimum, that appellant had engaged in a crime of moral turpitude that affected Garner’s three-year old daughter. The jury was not told the meaning of ‘moral turpitude,’ but in the context of a young girl, to many jurors this would connote improper sexual behavior or other physical abuse. This evidence was highly prejudicial to the jury’s view of appellant’s character and his readiness to do evil.”
We disagree. The testimony did not reveal what crime defendant had been convicted of, only that it involved moral turpitude. There was no discussion of the offense or any mention of any type of abuse. The prosecution’s aim was to refute defendant’s claim that he lied to police about being at Garner’s apartment because of the no-contact order. Whether or not defendant had a reason to lie about being at the apartment where the gun was found was certainly relevant, and the relevance outweighed any possible prejudice from the limited exploration of the no-contact order during testimony. The court did not err in denying defendant’s motion for a mistrial.
III
Section 654
Defendant contends the trial court erred in failing to stay three of the four sentences for possession of a firearm by a felon, counts three, five, eight, and eleven. (§ 29800, subd. (a)(1).) According to defendant, under section 654 he could only be sentenced for one violation of section 29800 because “continuous possession of a gun by a felon can only be sentenced once.”
Background
Prior to trial, defendant entered a plea of no contest to being a felon in possession of a firearm on July 11, 2013 (count five), September 21, 2013 (count eight), October 12, 2013 (count eleven), and January 9, 2014 (count three). Before defendant entered his plea, the court informed him that the maximum sentence on those counts would be the upper term of three years, plus eight months for the other three counts, for a total of five years. Defendant acknowledged he understood.
At trial, defendant admitted possessing the Ruger nine-millimeter handgun found in Garner’s stove on each of the dates of the four robberies. Although he knew that with a prior felony conviction he was not supposed to own or possess a firearm, defendant kept the handgun for “self -preservation” or to protect himself. He purchased the gun in January 2013 from a friend. He needed the gun to protect himself when buying drugs and from gang members. The gun was in his possession until detectives found it in the stove. Defendant testified he did not possess any other guns during the time of the charged robberies.
At the time of sentencing, defendant argued section 654 prohibited consecutive sentences on the counts in light of the findings under section 12022.53, subdivisions (b) and (d). The court found consecutive sentences appropriate because the elements of possession by a felon are different from the actual use of a firearm.
Discussion
Section 654 states, in part: “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.” Defendant argues his separate terms for possession of a firearm by a felon violate the statute.
Whether a single course of conduct is divisible into different offenses based on separate objectives is a question of fact for the trial court. We uphold the trial court’s findings on appeal if supported by substantial evidence. We review the trial court’s determination in the light most favorable to the judgment and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Vang (2010) 184 Cal.App.4th 912, 915-916; People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
In support of his claim, defendant cites People v. Spirlin (2000) 81 Cal.App.4th 119 (Spirlin) and argues because he used the same gun during the four robberies this amounted to continuous possession of the weapon. Therefore, he could only be sentenced to one violation of section 29800, subdivision (a)(1).
In Spirlin, the defendant used a gun in two separate robberies committed a month apart. After his arrest, the defendant’s wife told police he had the gun for a couple of months before his arrest. (Spirlin, supra, 81 Cal.App.4th at pp. 128-130.) The defendant was convicted of two robberies while personally armed and three counts of being a felon in possession of a firearm. The three handgun possession counts stemmed from the defendant’s possession of the same gun during the two robberies. He was sentenced separately for each of the three gun possession counts. (Id. at pp. 129-130.)
The court in Spirlin stayed two of the possession counts under section 654, finding the defendant’s possession of a handgun was a single act with a single objective. The defendant had continuous, constructive possession of the gun months before the robberies through his arrest, when the gun was found in his apartment. The defendant could be separately punished for crimes committed with the gun, such as robberies, which required more than possession of the gun, but he could not be punished for his continuous possession of the weapon. (Spirlin, supra, 81 Cal.App.4th at pp. 130-131; see also People v. Mason (2014) 232 Cal.App.4th 355, 366.)
According to defendant, “the only way to uphold multiple punishment on the four firearm possession counts would be to find there was substantial evidence that a different gun was used in the robberies than in the homicide on January 9, 2014, when appellant’s gun was found in Garner’s house. There is no substantial evidence a different gun was used in the robberies, assuming the trial court even made this finding.” Defendant argues, as in Spirlin, “there is no evidence appellant ever lost actual or constructive possession of the firearm, which he admitted he possessed on the dates of the charged violations of section 29800, subdivision (a)(1).”
However, as the People note, the witnesses presented conflicting testimony as to the type of gun defendant used in the various robberies. The parts manager at the July 2013 robbery, Uhl, told the 911 dispatcher and investigating officers that defendant wielded a silver Colt .45. Defendant’s gun was a black Ruger nine millimeter. At trial, Uhl testified the gun used in the robbery looked like a Colt, but “it could have been a Glock or anything like that.” He stated he glanced at the gun during the robbery and said defendant’s gun, shown during trial, “looks a lot like it, if it’s not exactly it.” During cross-examination, Uhl testified he did not know the make of the gun shown to him in court, and he was not an expert on handguns. He would not be able to identify either the brand or the caliber of a handgun, at first glance.
A clerk from the second robbery, White, at trial testified that defendant’s Ruger nine millimeter “does look a little bit different” than the gun used in the robbery. The robber had used a gun with a silver frame. During the 911 call, White told the operator the gun was black and maybe a Glock. When an officer showed White a photo of defendant’s gun, White thought it looked similar but remembered there was silver on the frame. White only glanced briefly at the gun during the robbery. Another clerk at the second robbery, Montez, testified during trial he could not be certain defendant’s gun was the gun used during the robbery.
In addition, a criminalist testified the swab from the Ruger nine-millimeter handgun contained DNA from a major and a minor contributor. Defendant’s DNA matched that of the major contributor, but the results indicated someone else had also handled the gun.
Based on the eyewitness testimony, the trial court could find defendant did not have continuous possession of any particular gun. The trial court did not abuse its discretion in not staying any of the firearm possession convictions under section 654.
IV
Correction of Abstract of Judgment
Finally, defendant contends the abstract of judgment should be corrected to delete the indication of a consecutive sentence on count two, and to delete the indication that defendant was sentenced under section 667.7. The People agree the errors should be corrected.
At sentencing, the court imposed and stayed pursuant to section 654 the upper term of three years for attempted second degree robbery. However, on the abstract of judgment, the box for a consecutive full-term sentencing is checked as well as the box for a section 654 stay. The abstract of judgment should be corrected to delete the check in the box for consecutive full-term sentencing.
Defendant was not charged or sentenced pursuant to section 667.7. The abstract of judgment indicates he was sentenced under section 667.7. Therefore, the abstract of judgment should be modified to delete the check in the box at paragraph 8 indicating he was sentenced pursuant to section 667.7.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to delete the indication of a consecutive sentence on count two, and to delete the indication that defendant was sentenced under section 667.7 and forward a certified copy to the Department of Corrections and Rehabilitation.



RAYE , P. J.



We concur:



HULL , J.



DUARTE , J.