P. v. Allen

Filed 9/26/07 P. v. Allen CA2/7

Opinion following remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. William F. Fahey, Judge. Affirmed in part; reversed in part; and remanded for resentencing.

Linda Buchser and Vanessa Place, under appointments by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________

A jury convicted appellant, Joseph Alexander Allen, among other offenses, of assault with a firearm, robbery, and possession of illegal drugs for purposes of sale. The jury found true firearm and other allegations related to those offenses. He appeals his conviction to challenge the sufficiency of the evidence to sustain one of the convictions for assault with a firearm. He also asserts numerous claims of sentencing error. We find certain of his allegations of sentencing error have merit. We will accordingly stay punishment on two counts, partially reverse his sentence on another count and remand for resentencing. We affirm the judgment of conviction in all other respects.

FACTS AND PROCEEDINGS BELOW

William Hall lived in a small, bachelor-style house at 342-1/4 East 51st Street in Los Angeles. Gregory Jones was Halls caretaker. The two men lived in Halls small house located behind another residence.

On April 1, 2002 Jones and Hall were in the house smoking crack cocaine. Sometime between noon and 1:00 p.m. Martin Davis came by to visit. Davis drove his car up to Halls and Joness residence and noticed a minivan parked in front of their house. Davis honked his car horn. When the minivan did not move, Davis backed up and parked in front of the neighbors house. Appellant was the driver of the minivan. Davis recognized appellant as someone he knew from the neighborhood.

Davis went inside the house and poured himself and Hall a drink.

Perhaps ten minutes later appellant knocked on the door. Jones opened only the inner door and kept the security door closed. Jones, Davis and Hall saw appellant standing on the porch outside the door. A second young man stood behind appellant on the steps. Jones knew appellant well. Jones had purchased crack cocaine from appellant on numerous prior occasions. On the last occasion appellant had supplied Jones crack cocaine on credit. Appellant gave Jones around $30 worth of drugs and when Jones tried to pay him back appellant insisted Jones instead owed $60. Jones gave appellant the additional $30 but appellant claimed Jones owed an additional sum for paying late. Appellant continued to extort money from Jones until Jones had paid appellant approximately $140.

Jones told appellant he was not going to pay him any more money. Appellant said he was not there to collect more money but to offer Jones some drugs to buy. Appellant offered Jones a small rock of cocaine for $10. Jones said the piece was too small. Appellant told his friend to show Jones the pieces of crack cocaine he had in his possession. Jones opened the security door and stepped out onto the porch as appellants friend showed Jones the other pieces of crack cocaine. Just as Jones stepped outside appellant hit Jones in the eye with such force it knocked Jones off the porch. Appellant then pointed a gun at Jones and ordered him into the house. Jones did not want to comply as he was afraid of being cornered in the house with a guy with a gun. Jones slowly backed away toward the rear of the house acting as though he was severely dazed from the hit. Appellant jumped off the porch and fired a shot into the air. Appellant corralled Jones along the side of the house and began pistol whipping him about the head and face. Appellant fired his gun again past Joness head and into the house.

Jones was terrified. He asked appellant, What is this all about? You know, is it about the money? Jones pulled his wallet out of his pocket and threw it on the ground. Appellant picked up Joness wallet and took the $140 it contained. Appellant and his friend then ran away.

Davis heard a gun shot and the sound of bodies bumping into the wall while sitting in the kitchen of the house. Davis heard another gunshot. He then saw the growing bloodstain on his shirt and realized the bullet had hit him in the stomach. He called 911 for emergency medical assistance. Daviss stomach began swelling, he started coughing up blood, and throwing up. The bullet had passed through his bladder and had perforated his intestines in three different places. By the time of trial Davis was awaiting surgery to remove the bullet which was still lodged in his stomach.

William Hall had passed away by the time of trial and his preliminary hearing testimony was read to the jury. Hall testified when Jones opened the door to appellants knock, appellant came inside the living room and pointed his gun at him.

Officers who arrived at the scene found two shell casings at the rear of the residence expelled from a .380 caliber semiautomatic handgun. The officers also found what appeared to be a fresh bullet hole in the exterior wall of the house beneath the kitchen window. The officers found the corresponding exit bullet hole in the interior of the kitchen beneath the window.

A few weeks later, on April 19, 2002, police officers were following up on a Lojack report of a stolen vehicle when they saw a large group of people congregated at a place known for narcotics sales. The officers spoke to several persons in the group. However, one young male, who turned out to be appellant, would not make eye contact. The officers watched appellant as he tried to ease away from the group. Suddenly, appellant turned, grabbed the handle of his gun at his rear waistband, and began to run. The officers gave chase. They ultimately managed to subdue him in a breezeway littered with debris and bicycles. After a brief struggle over the gun the officers forcibly removed from appellants hand a loaded .380 caliber semiautomatic handgun. The gun had an additional seven live rounds in the attached magazine.

In a search of appellants person officers discovered $85 in small bills, a baggie containing marijuana and 12 wrapped pieces of crack cocaine.

An information charged appellant in seven counts. Regarding the events of April 1, 2002, counts 1, 2 and 3 charged appellant with assault with a firearm against Jones, Davis and Hall respectively.[1] Regarding these counts, the information alleged appellant had personally used a firearm,[2]and as to count 2, that appellant had personally inflicted great bodily injury on Davis.[3] Count 4 of the information charged appellant with second-degree robbery[4]while personally using a firearm, and while personally and intentionally discharging a firearm.[5]

Regarding the events of April 19, 2002, the information charged appellant in count 5 with possession for sale of cocaine base while armed with a firearm.[6] Count 6 charged appellant with possession of a controlled substance while armed with a loaded and operable firearm.[7] Finally, count 7 charged appellant with unlawful possession of a firearm by a felon.[8]

The jury acquitted appellant of the assault against Hall as alleged in count 3. The jury, however, convicted appellant of all the remaining counts and found true all allegations related to those counts.

The court sentenced appellant to an aggregate term of 30 years in state prison. Appellant appeals from the judgment of conviction.

DISCUSSION

I. THE CONVICTION FOR ASSAULT WITH A FIREARM AGAINST DAVIS IS SUPPORTED BY SUBSTANTIAL EVIDENCE.

Appellant was convicted in count 2 of assault with a firearm against Davis. The evidence showed appellant was outside the house beating Jones when he fired his handgun and the bullet went through the wall of the house and struck Davis who was inside. Appellant contends the record contains insufficient evidence to show he had actual knowledge the house was occupied when he fired the shot and thus his assault conviction in count 2 involving Davis cannot stand.

In reviewing a claim of insufficiency of the evidence on appeal, the critical inquiry is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citations.][9]

Appellant relies on the decision in People v. Williams[10]in support of his argument proof he actually knew Davis was inside the house was required before he could be convicted of assaulting Davis. Appellant reads the Williams decision too broadly. The question in Williams was the mental state required for a conviction of assault. The jury in the Williams case had been instructed the crime of assault required proof defendant willfully and unlawfully committed an act that by its nature would probably and directly result in the application of physical force being applied to the person of another.[11] The Williams court acknowledged the instruction was potentially ambiguous because it could permit a conviction premised on facts the defendant should have known but did not actually know.[12]

The Williams court reaffirmed assault was a general intent crime. The court also reaffirmed the crime of assault does not require a specific intent to injure the victim.[13] On the other hand, the Williams court noted a defendant is only guilty of assault if he intends to commit an act which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences. [Citation.] Logically, a defendant cannot have such an intent unless he actually knows those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. [Citation.] In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur.[14]

Accordingly, the court held assault does not require a specific intent to cause injury or a subjective awareness of the risk an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature would probably and directly result in the application of physical force against another.[15]

The Williams court described the instructional error in the case as largely technical and unlikely to affect the outcome of most assault cases.[16] This was true of the Williams case. The defendant admitted firing two shotgun rounds at the victims truck even though he knew the victim was nearby. In light of these admissions, the Williams court found the instructional error in that case harmless beyond a reasonable doubt.[17]

In the present case the jury was instructed in accordance with the Williams decision. They were instructed in order to convict appellant of assaulting Davis as alleged in count 2 they had to find, among other things, he willfully committed an act which by its nature would probably and directly result in the application of physical force on another person. More importantly, the jury was instructed in order to convict appellant they had to find he was aware of facts that would lead a reasonable person to realize that as a direct, natural and probable result of this act that physical force would be applied to another person; . . . [18]

Based on the jurys question during deliberations and the courts additional instructions in response, appellants jury expressly ruled out any possibility his act of firing into the house was either accidental or inadvertent.[19] By rejecting the possibility of an accidental shooting the jury necessarily found appellant had willfully fired his gun by Joness head and into the house. In other words, the jury found appellant had knowingly fired his gun and had knowingly done so into an occupied residence. Because appellant was familiar with Joness and Halls residence he had to know it was regularly occupied by at least Hall and Jones. Any reasonable person aware of these facts would realize injury to a person inside the residence was likely to occur as a direct, natural and probable result of the act of shooting into the residence. As our Supreme Court observed in another context, shooting at a structure currently used for dwelling purposes poses a great risk or high probability of death.[20] The Court further noted, [a]n inhabited dwelling house is one in which persons reside [citation] and where occupants are generally in or around the premises. [Citation.] In firing a gun at such a structure, there always will exist a significant likelihood that an occupant may be present.[21]

It was not also necessary for appellant to be subjectively aware Davis was in his line of fire to convict him of assaulting Davis. This is because the underlying substantive offense of assault with a firearm does not require a specific intent to injure any particular victim.[22] The decision in In re Tameka C. is an example of this principle. There the court affirmed multiple assault convictions and gun use enhancements where the defendant fired at police officers, missed all of them but the bullet shattered the glass in a door of a nearby hotel and injured a child inside the hotel. The In re Tameka C. court upheld the assault conviction and firearm use enhancement involving the child although the child was an unknown and unintended victim. The In re Tameka C. court observed, to fire a weapon in an urban area and thereby injure others is reprehensible risk-taking behavior that effectively may be deterred by the firearm-use enhancement even when the perpetrator does not specifically intend to injure one of his or her victims or intends only to assault a person other than the victim.[23]

In sum, reasonable inferences from the factual circumstances surrounding the crime and its victims indicate appellant was aware his act of firing a handgun into the occupied residence would by its nature probably and directly result in the application of physical force against another.

Moreover, the record contains substantial evidence appellant was in fact subjectively aware Davis was in the house, and was thus a potential victim, when he willfully fired his handgun into Joness residence. Appellant was sitting in a minivan in front of Joness and Halls house when Davis arrived. Davis and appellant knew each other from the neighborhood. Davis honked his car horn to get appellant to move. From this evidence the jury could have reasonably found appellant noticed Davis arrive, and especially noticed Davis after Davis demanded appellants attention by honking his car horn. According to Daviss trial testimony, he had only been at Joness house ten minutes before appellant knocked on Joness front door. Based on this short period of time, and the fact Daviss car was still parked outside in front of Joness neighbors house, a rational juror could have found appellant was actually aware Davis was still inside Joness house.

This evidence, and reasonable inferences from the record evidence, amply support the jurys implied finding appellant knew Davis was still inside the house at the time of the shooting and was therefore at risk of being injured when appellant fired his handgun into the house. Accordingly, appellants assault conviction in count 2 need not be reversed for insufficient evidence.

II. UNDER THE CALIFORNIA SUPREME COURTS HOLDING IN PEOPLE v. BLACK II THE COURT DID NOT COMMIT BLAKELY-CUNNINGHAM ERROR BY IMPOSING AN UPPER TERM AND A CONSECUTIVE SENTENCE.

Appellant contends his sentence must be reversed because the trial courts imposition of a consecutive term on the assault conviction regarding Davis as alleged in count 2 and imposition of the upper term on the robbery conviction involving Jones in count 4 were based on factual findings made by the court and not the jury. He thus claims he was deprived of his rights to due process and to a jury trial as mandated by the United States Supreme Courts decision in Blakely v. Washington.[24]

While this appeal was pending, the California Supreme Court issued its first opinion in People v. Black (Black I).[25] Thus, in its original opinion and under compulsion of Black I this court upheld the upper term and consecutive sentences as not constituting Blakely error. The United States Supreme Court granted certiorari and after deciding Cunningham v. California,[26]remanded this case to be reconsidered in the light of that courts opinion. While we were engaged in that reconsideration, the California Supreme Court issued its second opinion in the Black casePeople v. Black (Black II).[27] While the members of this panel are not unanimous in their conviction the California Supreme Court properly interpreted the United States Supreme Courts Cunningham opinion, we are united in our understanding we are bound by our high courts decision in Black II.

The trial court recited three aggravating factors justifying its imposition of the upper term on count 4. Plainly two of the threeappellants conduct in this case was wanton and dangerous and he was an extreme danger to the communitywere improper under Cunningham because they had been found by a judge and not a jury. The thirdappellants 20-year criminal record was so clearly inaccurate one must seriously question whether the trial court was examining the correct defendants rap sheet.

Because appellant was only 25 when he committed this crime he would have had to have begun his criminal career at the tender age of 5 to deserve the trial judges characterization of his record. In fact, he received his first juvenile adjudication for vandalism, leading to community service and probation, 10 years not 20 years before he committed this crime. He had one other juvenile adjudication for burglary and two adult convictions, one for possession of narcotics for sale and one for spousal battery. (The probation officers report also cited to several arrests which ended with dismissals or no disposition. To the extent the trial courts finding of the aggravating factor of a serious criminal record was based on mere arrests, it clearly was improper. By definition, the prior convictions exception only applies to convictions not arrests.)

After deleting the arrests not leading to convictions, this is hardly an impressive criminal record. We are not entirely convinced the trial judge would have imposed the high term if the only aggravating factor available to justify that sentencing choice consisted of one narcotics conviction and one battery on a domestic partner. There now is some doubt the two juvenile adjudications can be used for this purpose at all.[28] But even if they can, they add little.

The current crime of which appellant was convicted is completely out of character with his prior record, such as it wasa dramatic and violent escalation in his criminal behavior. Unless the trial court based its choice of the high term in part on its erroneous view of the length and seriousness of appellants prior criminal record, it is more likely what motivated the trial judge was his findings about the nature of that crime and what it said about appellants future danger to the community rather than appellants short and modest list of prior convictions. But these were findings about the current crime Cunningham and its predecessors hold the judge was precluded from making by himself. Moreover, we would have some difficulty concluding this trial court would have imposed the high term based solely on appellants true prior record.

Nonetheless, under the California Supreme Courts recent opinion in Black II, it appears the mere availability of one or more prior convictions a trial court could have used to elevate a defendants sentence to the high term is sufficient to support that high term sentence.[29] According to that opinion, if a single aggravating factor not requiring a jury finding is available to the sentencing judge, imposition of an upper term sentence is authorized even if the judge used other improper factors in deciding to impose that sentence.[30] Furthermore, under that same decision, a judge without a jury is permitted to find the defendant suffered prior convictions[31]and also to make other findings related to such convictions, such as the defendants performance on probation or parole was unsatisfactoryso long as those findings can be made by an examination of the record.[32]

In the case before this court, appellant did not have a twenty year criminal record as the trial court said he did. But he did have two prior felony convictions. Moreover, although not recited by the court, appellant committed this crime while on probation from a prior crime. Indeed, appellant was scheduled for a probation revocation hearing after the conclusion of this trial. This is another aggravating factor which could have made appellant eligible for an upper term sentence. Accordingly, under the binding precedent of Black II we uphold the trial courts election of the upper term sentence on count 4.

In exercising its discretion to impose a consecutive sentence on count 2 the trial court noted this count involved a different victim, Martin Davis, and a different crime, assault with a firearm. This was tantamount to saying the conviction for assault against Davis involved a different victim and a separate act of violence from the robbery conviction in count 4 perpetrated against Jones. This rationale for imposing a consecutive sentence falls within the guidelines of rule 4.425 of the California Rules of Court and is accordingly sufficient under Black II to justify the consecutive sentence on count 2.

For these reasons, we affirm the trial courts imposition of both the upper term and consecutive sentences appellant challenged as Blakely-Cunningham error.

III. THE TRIAL COURT ERRED IN IMPOSING A FULL-TERM GUN ENHANCEMENT ON THE SUBORDINATE TERM ON COUNT 2.

The trial court sentenced appellant to state prison for a total term of 30 years. The court selected the robbery conviction in count 4 as the principal term and imposed the upper term of five years for the offense, and added an additional and consecutive 20-year term on the discharge of a firearm enhancement.[33] On the assault with a firearm against Davis conviction in count 2 the court imposed a consecutive one year term (1/3 the mid-term), plus an additional, consecutive four years (full mid-term) on the related gun use enhancement.[34] The court imposed concurrent terms on the remaining five counts and enhancement allegations.

Appellant contends the trial court erred in imposing a full term enhancement on the subordinate term in count 2, rather than one third of the term imposed for the firearm use enhancement. The People concede the error and we agree.

Section 1170.1, subdivision (a) provides in pertinent part, when any person is convicted of two or more felonies, . . . and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.[35]

A specific enhancement within the meaning of section 1170.1 includes a gun use enhancement under section 12022.5, the enhancement at issue in this case.[36]

The court should have imposed one-third of the term imposed on the section 12022.5, subdivision (a)(1) enhancement. Thus, the full term for this enhancement on the subordinate term constitutes an unauthorized sentence, and as such, is subject to correction on appeal.[37]

However, in this multi-felony conviction case involving numerous enhancement allegations the trial court had sentencing options it could have exercised in lieu of the

sentence it imposed. Given these circumstances, it is appropriate to remand the case to permit the trial court to reconsider its sentencing scheme. Accordingly, we will remand the matter to permit the court to resentence appellant in accordance with the applicable statutes and rules, subject only to the limitation the aggregate prison term not be increased.[38]

When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components.[39]

We will remand the matter for resentencing not inconsistent with this opinion.

IV. THE TERMS IMPOSED ON COUNTS 1 AND 6 SHOULD HAVE BEEN STAYED, RATHER THAN IMPOSED CONCURRENTLY.

Appellant contends the trial court erred under section 654 in imposing concurrent sentences on counts 1 and 6.[40]

Section 654, subdivision (a) provides in pertinent 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. . . . 

The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although these distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one of the separate offenses arising from the single act or omissionthe offense carrying the highest punishment. (Neal v. State of California (1960) 55 Cal.2d 11, 18-21; 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment,  129, 149, pp. 191-193, 213-215.)[41]

The principle inquiry in each case is whether the defendants criminal intent and objective were single or multiple. Each case must be determined on its own facts.[42] The question whether a defendant entertained multiple criminal objectives and thus whether section 654 applies is one of fact for the trial court. The courts findings on these questions will be upheld on appeal if there is any substantial evidence to support them.[43]

In the present case the trial court did not make any factual findings before imposing concurrent terms on counts 1 and 6. We find insufficient evidence to support even implied findings to justify concurrent terms on these counts.

When police officers arrested appellant they found cocaine base in his pocket and a loaded operable handgun in his waistband. In count 5 the jury convicted appellant of possession for sale of cocaine base and found true the related allegation he was armed with a firearm.[44] In count 6 the jury convicted appellant of possession of a controlled substancecocaine basewhile armed with a loaded and operable firearm.[45] Appellant argues, and the People concur, imposing concurrent terms on these two counts was the classic situation of imposing multiple punishment for the same act. We agree. Both counts involved the same gun and the same illegal drugs. Accordingly, the lesser punishment on count 6 should have been stayed.

Appellant also argues the trial court erred in imposing a concurrent sentence on his conviction in count 1 for assaulting Jones while also imposing punishment on his conviction in count 4 for robbing Jones. He argues he had but a single objective and the assault and robbery of Jones were part of a continuous course of conduct with the single purpose of robbing Jones. Accordingly, he asserts the concurrent term imposed on count 1 must be stayed.

The People, by contrast, argue multiple punishments were proper. They claim the evidence showed appellant initially assaulted Jones on his front porch and then later used his handgun to beat Jones before robbing him of the cash in his wallet. The People argue the trial court could have impliedly found appellants initial assault of victim Jones at or near the front entrance door was gratuitously committed based on victim Joness purported late payment for the crack cocaine appellant had fronted him on credit, whereas appellants later application of force against victim Jones at the rear of the residence was committed to rob him of the cash in his wallet.

We believe the facts of this case reasonably admit to only one constructionappellants intent and objective in assaulting Jones was to facilitate the robbery. Appellant used his handgun to beat and scare Jones until Jones was sufficiently intimidated and terrified to relinquish his wallet. The moment Jones did so appellant took Joness money and fled. The fact appellant left after getting Joness money suggests robbing Jones was appellants objective all along. The situation might have been different if, for example, appellant continued to beat Jones even after taking his money. If this had been the case an assault after the robbery would then likely be motivated by some other objective and for that reason separately punishable. However, those are not the facts in the case at bar. Instead the evidence showed appellant hit and beat Jones and fired his weapon near Joness head until Jones relinquished his wallet.

Notably, the prosecutions own view of the case was appellants intent and objective in assaulting Jones was to take his money. In closing argument the prosecutor defined the crime of assault and asked the jury, What does that mean? That means [appellant] went onto the property where Mr. Jones lived, where Mr. William Hall lived, with a gun and he confronted them and wanted money and he pointed the barrel of that gun at Mr. Jones and he did so willfully.

Here the record evidence showed appellants crime of assaulting Jones was committed pursuant to the single intent and objective of robbing Jones. Accordingly, the concurrent sentence imposed on count 1 for his conviction for assaulting Jones should have been stayed as well.[46]

DISPOSITION

The concurrent terms imposed on counts 1 and 6 are stayed. The gun use enhancement imposed on the subordinate term in count 2 is reversed. In all other respects the judgment is affirmed and the case is remanded for resentencing in accordance with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

We concur:

PERLUSS, P. J.

ZELON, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

[1] Penal Code section 245, subdivision (a)(2). All further statutory references are to the Penal Code unless otherwise noted.

[2] Section 12022.5, subdivision (a)(1).

[3] Section 12022.7, subdivision (a).

[4] Sections 211, 212.5.

[5] Section 12022.53, subdivisions (b) and (c).

[6] Health and Safety Code section 11351.5 and section 12022, subdivision (c).

[7] Health and Safety Code section 11370.1, subdivision (a).

[8] Section 12021, subdivision (a)(1).

[9]People v. Liu (1996) 46 Cal.App.4th 1119, 1131-1132.

[10]People v. Williams (2001) 26 Cal.4th 779.

[11]People v. Williams, supra, 26 Cal.4th 779, 783.

[12]People v. Williams, supra, 26 Cal.4th 779, 790.

[13]People v. Williams, supra, 26 Cal.4th 779, 788.

[14]People v. Williams, supra, 26 Cal.4th 779, 788.

[15]People v. Williams, supra, 26 Cal.4th 779, 790.

[16]People v. Williams, supra, 26 Cal.4th 779, 790.

[17]People v. Williams, supra, 26 Cal.4th 779, 790.

[18] Italics added.

[19] During deliberations, the jury sent the court a question, inquiring Is intent a factor in determining the validity of charge #2? Were needing clarification on this; while we understand that the stray bullet caused Davis great bodily harm, were wondering if the accidental discharge, without intent, would negate the assault with a deadly weapon allegation.

The court directed the jury to review the CALJIC instruction on the definition of assault noted above. The court also instructed the jury as follows: When a person commits an act or makes an omission through misfortune or by accident under circumstances that show no criminal intent, he does not thereby commit a crime. You may consider that instruction as well in conjunction solely with count 2.

[20]People v. Hansen (1994) 9 Cal.4th 300, 310.

[21]People v. Hansen, supra, 9 Cal.4th 300, 310 [holding the crime of willfully discharging a firearm at an inhabited dwelling is an inherently dangerous felony for purposes of the second degree felony murder rule].

[22] See, e.g., In re Tameka C. (2000) 22 Cal.4th 190, 198.

[23]In re Tameka C., supra, 22 Cal.4th 190, 199.

[24]Blakely v. Washington (2004) 542 U.S. 296.

[25]People v. Black (2005) 35 Cal.4th 1238.

[26]Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].

[27]People v. Black (2007) 41 Cal.4th 799.

[28]People v. Nguyen (2007) 152 Cal.App.4th 1205, 1210, 1239 [holding a juvenile adjudication does not qualify as a prior conviction for purposes of enhancing sentence].

[29]People v. Black, supra 41 Cal.4th 799, 813.

[30]People v. Black, supra, 41 Cal.4th 799, 815.

[31]People v. Black, supra, 41 Cal.4th 799, 818.

[32]People v. Black, supra, 41 Cal.4th 799, 819-820.

[33] Section 12022.53, subdivision (c).

[34] Section 12022.5, subdivision (a)(1).

[35] Italics added.

[36] Section 1170.11 states, As used in Section 1170.1, the term specific enhancement means an enhancement that relates to the circumstances of the crime. It includes, but is not limited to, the enhancements provided in Sections . . . 12022.5 . . . .

[37]People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, footnote 1; In re Sandel (1966) 64 Cal.2d 412, 417-419.

[38]People v. Burbine (2003) 106 Cal.App.4th 1250, 1256 [the trial judges original sentencing choices did not constrain him or her from imposing any sentence permitted under the applicable statutes and rules on remand, subject only to the limitation that the aggregate prison term could not be increased.].

[39]People v. Hill (1986) 185 Cal.App.3d 831, 834.

[40] A claim of error under section 654 is generally not waived by failure to object in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295; People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17 [It is well settled, . . . that the court acts in excess of jurisdiction and imposes an unauthorized sentence when it erroneously stays or fails to stay execution of a sentence under section 654.].

[41]People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.

[42]People v. Beamon (1973) 8 Cal.3d 625, 630-639; People v. Liu, supra, 46 Cal.App.4th 1119, 1134.

[43]People v. Hutchins, supra, 90 Cal.App.4th 1308, 1312; People v. Liu, supra, 46 Cal.App.4th 1119, 1134-1135.

[44] Health and Safety Code section 11351.5 and section 12022, subdivision (c).

[45] Health and Safety Code section 11370.1, subdivision (a).

[46] See, e.g., People v. Beamon, supra, 8 Cal.3d 625, 637 [Thus, one who uses a deadly weapon in the commission of first degree robbery simultaneously assaults the victim with such weapon but clearly may not be punished for both the robbery and assault with a deadly weapon.].