P. v. Ford

Filed 10/16/06 P. v. Ford CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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, Allen J. Webster, Judge. Affirmed as modified.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Susan Lee Frierson, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Robert Lee Ford appeals from the judgment entered after a jury convicted him of one count of first degree murder and found true special allegations that he personally and intentionally used and discharged a firearm in committing the offense. Ford contends the trial court erred in instructing the jury and in punishing him for the firearm enhancements as well as for the underlying murder offense. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Charges

Ford was charged by information with one count of murder (Pen. Code, § 187, subd. (a)).[1] Firearm-use enhancements were alleged under section 12022.53, subdivisions (b), (c) and (d).[2]

2. Summary of the Evidence Presented at Trial

According to the People’s evidence, on the evening of September 28, 2004 Los Angeles Police Detectives Richard Guzman, Thomas Eiman and Patrick Foreman were conducting a narcotics surveillance of a vacant apartment unit in the Nickerson Gardens housing projects. Guzman was in a car parked on the street outside the complex with a view of the rear door of the unit under surveillance; Eiman and Foreman were in a van parked at a different location watching the front of the unit.

At approximately 8:00 p.m. each of the detectives saw a dark-colored Buick enter the parking lot of the complex. The driver, who was the only occupant in the vehicle, was wearing a red shirt. He got out of the car and walked between two of the buildings in the complex. A short while later the detectives heard gunshots. From his vantage point Guzman could see a muzzle flash near a red Cadillac and a man wearing a plaid shirt behind the flash. Guzman drove his car away from the flash, believing he might be in the line of fire, and saw a different man, later identified as Arman Davis and determined to have been unarmed, crouch down by the front fender of the Cadillac and then collapse to the ground as he was hit by more shots being fired by the man in the plaid shirt. Guzman estimated the man in the plaid shirt fired 10 to 15 shots. Davis suffered eight gunshot wounds, several of which were fatal.

Guzman heard more gunshots coming from another location and saw the man in the plaid shirt run between two buildings. Responding to Guzman’s broadcast of the location and description of the man in the plaid shirt, Eiman drove the van through the parking lot of the complex; he and Foreman saw two men, the man in the red shirt who had driven the dark-colored Buick and the man in the plaid shirt, coming out from between two buildings. The man in the plaid shirt, later identified as Ford, had a gun in his hand and was constantly looking around the area. He then hid the gun under his shirt. The two men entered the Buick; and the man in the red shirt drove them out of the parking lot.[3]

Although he lost sight of the Buick for about 30 seconds, Eiman caught up to it. The Buick’s occupants turned and looked in Eiman’s direction; and the driver then accelerated to a high rate of speed, went through a red light, made several turns and came to a stop. When Eiman approached the car, no one was in the vehicle. However, its headlights were on; and the passenger-side door was open. After other police units arrived at the scene, Ford walked into the area, now wearing a white t-shirt, and was arrested. Foreman found a plaid shirt on the ground nearby, which Guzman identified as the type of shirt worn by the shooter.

After his arrest, Ford was taken to the police station and advised of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]). In an interview with police detectives early the next morning, Ford stated he understood the passenger in the red Cadillac had been involved in the fatal shooting of his friend, William Corey, a few days prior to September 28, 2004, a shooting at which Ford had been present. He approached the passenger side of the Cadillac with a gun in his hand out of curiosity and asked the man who he was. Ford then fired two shots. Although Ford pointed his gun at the man, he did not know whether the shots hit him. Ford fired no other shots and could not say who shot the man. After shooting twice, Ford ran into the projects to escape the gunfire he heard coming from all over the area. He gave his gun to someone, who threw it away. Ford then saw a friend and got into his car.

According to ballistics evidence, stipulated to by the parties, “[e]vidence recovered from the Arman Davis murder scene included 16 bullet cartridge cases and one bullet fragment. [Ten] of the cartridge[] cases and one bullet fragment were found in the immediate vicinity of the front of the El Dorado [Cadillac] and victim’s body. Ballistic analysis determined that they all came from the same gun[,] referred to . . . as Gun A. Five of the cartridge cases were found in the middle of Antwerp Street, mid-block between East 111th Place and East 111th Street. Ballistic analysis determined that they all came from a second gun, . . . Gun B. One cartridge case was found in the walkway between 1451 East 111th Place and 11101-15 Antwerp Street. Ballistic analysis determined that it also came from Gun A. Evidence recovered from the victim’s body during the autopsy included seven bullet jacket fragments and one fired bullet. Ballistic[] analysis determined that three of the bullet fragments and the one fired bullet came from Gun A. The other four bullet fragments could not be conclusively connected to any particular weapon. Evidence recovered from the William Corey, a.k.a. Billy Pooh, murder scene included 18 cartridge cases, one unfired ammunition cartridge, one bullet fragment, and two fired bullets. Ballistic analysis determined that nine of the cartridge cases came from a third gun . . ., Gun C. While three of the cartridge cases and the two fired bullets came from Gun A. The unfired cartridge and one bullet fragment could not be connected to any particular weapon. The parties further stipulate that the defendant, Robert Lee Ford, was not one of Mr. William Corey’s assailants and is in no way responsible for Corey’s murder.”

Ford testified on his own behalf, stating that he was hanging out on the street outside Nickerson Gardens with about 10 friends on the evening of September 28, 2004 when a red Cadillac with two men inside drove up and parked. According to Ford, his friend reported that one of the men in the Cadillac might have been involved in Corey’s recent murder. Based on this information, Ford walked up to the car to ask the men some questions. Although he did not intend to shoot anyone, he carried for safety purposes a loaded gun that had been given to him by a friend. Ford wanted to know “why would they come over there and shoot with kids and everything involved in the crowd where this party was at on the Corey[] case.” The two men got out of the Cadillac; and Ford asked the passenger, determined to be Davis, who he was. Ford testified Davis replied that his name was “Iceman.” Ford then heard two gunshots behind him and believed the shots were being fired in his direction. As he ran away, Ford, without aiming at anyone, shot back behind himself twice, noticing that Davis and the shooter were near each other. Ford then saw a friend and asked for a ride home. During the drive, he and his friend noticed a van following them; and he told his friend to stop the car. Ford got out of the car, took off and dropped his plaid shirt and hid in a yard from the police. When the police arrived, he surrendered. Ford insisted he had shot only twice at Davis’s murder scene. He explained he gave a slightly different version of the incident in his interview with police detectives, stating at that time his two shots were the first fired and at the passenger in the Cadillac, because he was tired and unaware of what he was saying.

3. The Jury’s Verdict and Sentencing

The jury found Ford guilty of the first degree murder of Davis. It found true the special allegations under section 12022.53, subdivisions (c) and (d). The trial court sentenced Ford to an aggregate state prison term of 50 years to life, consisting of 25 years to life for the murder offense, plus 25 years to life for the section 12022.53, subdivision (d), enhancement.[4]

CONTENTIONS

Ford contends (1) the trial court erred in instructing the jury under CALJIC Nos. 2.03 (consciousness of guilt -- falsehood) and 2.62 (defendant testifying -- when adverse inference may be drawn) because those instructions were not warranted based on the evidence and caused the jury to view with heightened scrutiny his statements to police in his post-arrest interview and his testimony at trial, thereby impermissibly relieving the People of their burden to prove every element of the murder offense beyond a reasonable doubt; (2) the aiding and abetting instructions, in conjunction with CALJIC No. 3.41 (more than one cause/concurrent cause), allowed the jury to find true the special allegation under section 12022.53, subdivision (d), without concluding he had personally used and discharged a firearm that proximately caused great bodily injury or death to Davis; and (3) he should not have been punished for both the underlying murder offense and the firearm enhancements under section 12022.53, subdivisions (c) and (d).

DISCUSSION

1. The Trial Court Properly Instructed the Jury with CALJIC Nos. 2.03 and 2.62

a. CALJIC No. 2.03

An instruction on consciousness of guilt under CALJIC No. 2.03 is properly given when the evidence supports an inference the defendant prior to trial made a willfully false or deliberately misleading statement concerning the charged offense. (People v. Kelly (1992) 1 Cal.4th 495, 531.) For example, a defendant’s inconsistent statements to police initially denying and then admitting commission of the crimes provide the requisite evidentiary support for the instruction. (Ibid.; see also People v. Stitely (2005) 35 Cal.4th 514, 555 [CALJIC No. 2.03 “applied based on defendant’s inconsistent and contradicted statements to police attempting to minimize involvement in the capital crime”].)

Ford’s statement to police in his post-arrest interview supports giving CALJIC No. 2.03.[5] During his interview with police detectives, Ford stated he had fired his gun only twice during the incident. However, the ballistics evidence, to which Ford stipulated at trial, proved 10 cartridge cases and one bullet fragment, all from the same gun, were found in the immediate vicinity of the front of the Cadillac and Davis’s body, where Guzman saw the man in the plaid shirt firing shots at Davis. Eiman and Foreman later identified Ford as the man who had been wearing the plaid shirt; and Ford admitted he had been wearing a plaid shirt. An additional cartridge case from that same gun was found nearby in a walkway between two buildings; and at least three bullet fragments and one fired bullet recovered from Davis’s body were determined to have been fired from that gun. This evidence was consistent with Guzman’s testimony he heard 10 to 15 shots fired by the man in the plaid shirt. Moreover, five cartridge cases were recovered down the street from the second gun involved in the incident. Based on this evidence, demonstrating one gun was fired at least 11 times and the second gun at least five times, Ford’s statement to police that he fired only twice was sufficient evidence to support instructing the jury under CALJIC No. 2.03.[6]

Any error in giving CALJIC No. 2.03, moreover, was harmless, as it is not reasonably probable Ford would have obtained a more favorable result had the instruction not been given. (People v. Rankin (1992) 9 Cal.App.4th 430, 436 [applying People v. Watson (1956) 46 Cal.2d 818, 836 standard of prejudice when court instructed jury under CALJIC No. 2.03].) This instruction leaves to the jury both the factual determination whether the defendant’s statements before trial were false and the significance, if any, of the false statements. (People v. Williams (2000) 79 Cal.App.4th 1157, 1168 [CALJIC No. 2.03 requires first that jury find defendant’s statement willfully false or deliberately misleading and then “does not ascribe any particular importance to the evidence but permits the jury to decided what weight or significance, if any, should be given the false statement”]; Rankin, at p. 436 [inference of guilt suggested by CALJIC No. 2.03 is a permissive one].) It also tells the jury that evidence of prior statements by the defendant that were willfully false or deliberately misleading is not sufficient to support a conviction. (Williams, at p. 1168 [CALJIC No. 2.03 “expressly forbids the jury from basing a conviction solely on the fact that the defendant made a false statement”]; see also People v. Stitely, supra, 35 Cal.4th at p. 555.) To that extent, the instruction would tend to benefit a defendant by warning the jury that evidence that otherwise might be considered highly incriminating is not, by itself, sufficient to prove guilt. (People v. Jackson (1996) 13 Cal.4th 1164, 1224 [“cautionary nature of the [consciousness-of-guilt] instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory”].) Finally, the jury was instructed under CALJIC No. 17.31 to disregard any instruction that applies to facts it had determined did not exist. Had the jury determined Ford did not make willfully false or deliberately misleading statements before trial concerning Davis’s murder, it simply would have found CALJIC No. 2.03 inapplicable and disregarded it. (People v. Yeoman (2003) 31 Cal.4th 93, 139 [“we and others have described the presumption that jurors understand and follow instructions as ‘[t]he crucial assumption underlying our constitutional system of trial by jury.’ [Citations.]”].)

b. CALJIC No. 2.62

CALJIC No. 2.62 instructs the jury that, if it finds the defendant in his or her testimony failed to explain or deny any adverse inference, the jury may take that failure into consideration as tending to indicate the truth of the evidence against the defendant, but that the failure to explain or deny does not by itself warrant an inference of guilt nor does it relieve the prosecution of proving every element of its case beyond a reasonable doubt. The instruction is properly given when there are “facts or evidence in the prosecution’s case within [the defendant’s] knowledge which he [or she] did not explain or deny.” (People v. Saddler (1979) 24 Cal.3d 671, 682; see also § 1127 [“In charging the jury the court may instruct the jury regarding the law applicable to the facts of the case, and . . . in any criminal case, whether the defendant testifies or not, his [or her] failure to explain or to deny by his [or her] testimony any evidence or facts in the case against him [or her] may be commented upon by the court”]; Evid. Code, § 413 [“In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his [or her] testimony such evidence or facts in the case against him [or her], or his [or her] willful suppression of evidence relating thereto, if such be the case”].) A contradiction between the defendant’s testimony and that of other witnesses does not constitute a failure to explain or deny to support use of CALJIC No. 2.62. (Ibid.) “[T]he applicability of CALJIC No. 2.62 is peculiarly dependent on the particular facts of the case.” (People v. Roehler (1985) 167 Cal.App.3d 353, 393.)

Ford contends instructing the jury under CALJIC No. 2.62 was error because he did not fail to explain or deny any of the evidence against him and any discrepancies between his account of the incident and those given by the People’s witnesses were merely credibility issues that did not warrant any adverse inferences drawn against him.[7] As with CALJIC No. 2.03, the ballistics evidence and Guzman’s testimony support the giving of CALJIC No. 2.62. Ford, in both his post-arrest statement and at trial, insisted he had fired his gun only twice at the crime scene. But he did not explain how that could be possible in light of the ballistics evidence, to which he stipulated, demonstrating the gun shot by the Cadillac and Davis’s body was fired at least 11 times; three bullet fragments and one bullet from that same gun were recovered from Davis’s body; the second gun fired nearby was shot at least five times; and no evidence suggested the presence of a third gun fired only twice. Ford also did not explain Guzman’s testimony that the man in the plaid shirt (which Ford admitted wearing) fired 10 to 15 shots, several of which were aimed directly at Davis as he collapsed to the ground. Ford’s failure to explain or deny that evidence constitutes more than simply contradictions in the testimony and supports the giving of CALJIC No. 2.62. (People v. Belmontes (1988) 45 Cal.3d 744, 783-784 [CALJIC No. 2.62 warranted when defendant’s testimony regarding how he struck the victim did not explain the autopsy conclusions about the type and extent of the victim’s injuries].)[8]

In any event, instructing the jury with CALJIC No. 2.62 was harmless because it is not reasonably probable Ford would have obtained a more favorable result in the absence of the instruction. (People v. Saddler, supra, 24 Cal.3d at p. 683 [applying People v. Watson, supra, 46 Cal.2d at p. 836 standard of prejudice when court instructed under CALJIC No. 2.62].) Like CALJIC No. 2.03, “CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt).” (People v. Ballard (1991) 1 Cal.App.4th 752, 756.) Moreover, instructing the jury under CALJIC No. 17.31 to disregard any instruction that applies to facts it had determined not to exist, “mitigates any prejudicial effect related to the improper giving of CALJIC No. 2.62.” (People v. Lamer (2003) 110 Cal.App.4th 1463, 1472.) Regardless, given the strength of the evidence against Ford, including Guzman’s testimony that he saw a man in a plaid shirt shooting by the Cadillac, Eiman’s and Foreman’s identifications of Ford and Ford’s admissions he was wearing a plaid shirt and fired shots at the crime scene, it is not reasonably probable the giving of CALJIC No. 2.62, either alone or in conjunction with CALJIC No. 2.03, adversely impacted the jury’s verdict. (See ibid. [“we have not found a single case in which an appellate court found the error [in giving CALJIC No. 2.62] to be reversible under the Watson standard. On the contrary, courts have routinely found that the improper giving of CALJIC No. 2.62 constitutes harmless error”].)

2. The Combination of the Aiding and Abetting Instructions and CALJIC No. 3.41 Did Not Eliminate the Personal-use Element of the Section 12022.53, Subdivision (d), Firearm Enhancement

The People’s theory of the case was that Ford fired the gun that caused Davis’s death. Nevertheless, because of the presence of another gun at the crime scene, the People also requested and obtained instructions on aiding and abetting, which allowed the jury in the alternative to find Ford guilty of murdering Davis if it concluded he actively participated in the crime.[9] In addition, the trial court instructed the jury under CALJIC No. 3.41 regarding concurrent causes of death: “There may be more than one cause of the death. When the conduct of two or more persons contributes concurrently as a cause of death, the conduct of each is a cause of death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the death and acted with another cause [that] produced death. If you find that the defendant’s conduct was a cause of death to another person, then it is no defense that the conduct of some other person, even the injured, deceased person, contributed to the death.”

In addition to the underlying murder offense, the People charged a 25-year-to-life firearm enhancement under section 12022.53, subdivision (d), requiring the jury to decide whether in committing the murder offense Ford personally and intentionally discharged a firearm proximately causing great bodily injury or death. Consequently, the jury was instructed regarding the section 12022.53, subdivision (d), enhancement under CALJIC No. 17.19.5, “It is alleged in count one that the defendant, Robert Lee Ford, intentionally and personally discharged a firearm and proximately caused great bodily injury or death to a person other than an accomplice during the commission of the crime charged. If you find the defendant, Robert Lee Ford, guilty of one or more of the crimes thus charged, you must determine whether the defendant, Robert Lee Ford, intentionally and personally discharged a firearm and proximately caused great bodily injury or death to a person other than an accomplice in the commission of that felony. The term ‘firearm’ includes a handgun. The term ‘intentionally and personally discharged a firearm,’ as used in this instruction, means that the defendant himself must have intentionally discharged it. The term ‘great bodily injury’ means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury. A proximate cause of great bodily injury or death is an act or omission that sets into motion a chain of events that produces as a direct, natural and probable consequence of the acts or omission the great bodily injury or death, and without which the great bodily injury or death would not have occurred. The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.”

Ford contends the fact the jury could have convicted him of Davis’s murder by virtue of the instructions on aiding and abetting and concurrent cause without determining he was the shooter who caused Davis’s death created confusion regarding the section 12022.53, subdivision (d), enhancement and could have led the jury to find true that special allegation without concluding he personally discharged a firearm that proximately resulted in great bodily injury or death to Davis. In effect, Ford argues the instructions impermissibly allowed the jury to find true the section 12022.53, subdivision (d), enhancement as an aider and abettor without the People having to allege and prove a criminal-street-gang enhancement under section 186.22, subdivision (b). (See § 12022.53, subd. (e)(1) [“The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: (A) The person violated subdivision (b) of Section 186.22. (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)”]; People v. Hernandez (2005) 134 Cal.App.4th 474, 480 [“an aider and abettor who is found guilty of murder is subject to the [§ 12022.53, subd. (d),] 25 year to life enhancement even though he or she did not personally and intentionally discharge a firearm causing death if the murder was committed for the benefit of a criminal street gang and ‘any principal’ in the offense personally and intentionally discharged a firearm causing death. In all other killings subject to section 12022.53, subdivision (d) -- that is, killings not for the benefit of a criminal street gang -- a principal, including an aider and abettor, is only subject to the 25 year enhancement if he or she personally and intentionally discharged a firearm causing death” fn. omitted].)

Nothing about the instructions was confusing. The aiding and abetting and concurrent cause instructions plainly concerned the underlying murder offense and informed the jury on what bases it could convict Ford of the crime of murder. The jury was in no way told the aiding and abetting and concurrent cause instructions applied in the context of the section 12022.53, subdivision (d), firearm enhancement. To the contrary, the section 12022.53, subdivision (d), instruction specifically directed it was to be considered only if the jury had determined Ford was guilty of the charged crime. (People v. Garcia (2002) 28 Cal.4th 1166, 1174 [“‘”[A] defendant is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense. [Citation.]”’”].) The instruction then repeatedly informed the jury the section 12022.53, subdivision (d), firearm enhancement could not be found true unless it found Ford intentionally and personally had discharged a firearm that proximately resulted in great bodily injury or death in committing the murder offense. Thus, under the instructions given, there is no basis to conclude the jury might have found true the firearm enhancement under section 12022.53, subdivision (d), without concluding Ford himself personally discharged a firearm that proximately caused great bodily injury or death to Davis. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1157 [challenge to CALJIC No. 17.19.5 based on ambiguity rejected when reasonable jurors would not have interpreted the instruction as suggested by the defendant].)

3. The Trial Court Properly Sentenced Ford for Both the Murder Offense and the Firearm Enhancements Under Section 12022.53, Subdivisions (c) and (d)

In addition to sentencing Ford for the underlying murder offense, the trial court imposed a 25-year-to-life enhancement pursuant to section 12022.53, subdivision (d), for Ford’s personal and intentional discharge of a firearm proximately causing great bodily injury or death; the court imposed and stayed a separate 20-year enhancement under section 12022.53, subdivision (c), for Ford’s personal and intentional discharge of a firearm. Arguing that the underlying murder sentence and firearm enhancements punish him for the same act, Ford contends the imposition of enhancements for his personal and intentional discharge of a firearm violates the “Ireland merger doctrine,” section 654 and the prohibition on punishment for lesser-included offenses.[10]

a. Ireland merger doctrine

In People v. Ireland (1969) 70 Cal.2d 522, the Supreme Court held a conviction for felony murder may not be based on a felonious assault that is an integral part of the homicide. A contrary rule, the Court explained, would eliminate the element of malice from the crime of murder in any case in which the homicide resulted from the felonious assault. (Id. at p. 539.) The Ireland merger doctrine has not been applied outside the context of felony-murder cases involving assault. (See, e.g., People v. Hansen (1994) 9 Cal.4th 300, 311; People v. Sanders (1990) 51 Cal.3d 471, 509, 517; People v. Garrison (1989) 47 Cal.3d 746, 778.) Indeed, “no authority [has] extend[ed] the merger doctrine to enhancements.” (People v. Sanders (2003) 111 Cal.App.4th 1371, 1374-1375 [finding the “bootstrapping” concerns addressed by the Ireland merger doctrine wholly inapplicable when a jury finds true beyond a reasonable doubt the conduct underlying a § 12022.53, subd. (d), firearm enhancement].) Thus, the Ireland merger doctrine has no bearing on the sentence imposed on Ford in this case.

b. Section 654

Ford’s argument fares no better under section 654.[11] Section 654 does not preclude imposition of both a punishment for a substantive offense and a statutory enhancement for firearm use during the commission of the offense under either section 12022.53, subdivision (c) or (d). (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1313 [imposition of § 12022.53, subd. (d), firearm enhancement in addition to a term for second degree murder does not violate § 654]; People v. Myers (1997) 59 Cal.App.4th 1523, 1529-1534 [enhancement for discharging a firearm from a moving vehicle not double punishment under § 654 because it is separate from the underlying murder offense]; People v. Ross (1994) 28 Cal.App.4th 1151, 1157-1159 [proper to punish defendant for voluntary manslaughter and firearm-use enhancement because “[t]he gun was simply the method selected by [defendant] to accomplish the crime, and the particular method selected subjects [him] to an additional penalty”]; see also People v. Sanders, supra, 111 Cal.App.4th at p. 1375 [rejecting argument § 654 precluded trial court from sentencing defendant for both first degree murder and a firearm enhancement under § 12022.53, subd. (d)].) By sentencing a defendant for both a firearm enhancement and the term for the underlying offense, “the law is not punishing [the defendant] twice for the same act; rather, the law is punishing him once each for the components of that act which make it so dangerous and antisocial.” (Hutchins, at p. 1315.)[12]

The Legislature specifically directed that section 12022.53 enhancements are mandatory, are to be applied “[n]otwithstanding any other provision of law” and may not be stayed. (§ 12022.53, subd. (c) [“[n]otwithstanding any other provision of law,” enhancement “shall” be imposed]; subd. (d) [same]; subd. (g) [prohibiting probation or suspension of sentence for any person found to come within § 12022.53]; subd. (h) [preventing court from striking a § 12022.53 allegation or finding].) “Clearly, in enacting [section 12022.53] the Legislature intended to mandate the imposition of substantially increased penalties where one of a number of crimes . . . was committed by the use of a firearm. In so doing, the express language of the statute indicates the Legislature’s intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties.” (People v. Hutchins, supra, 90 Cal.App.4th at p. 1313.)

Ford’s citation to Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi) does not help his argument. Apprendi addresses only a defendant’s right to trial by jury, not the question whether a defendant may be subjected to additional punishment based on the manner in which he or she commits an underlying offense. (People v. Scott (2001) 91 Cal.App.4th 1197, 1212 [identifying Apprendi as a “right to jury trial” case]; see also People v. Smith (2003) 110 Cal.App.4th 1072, 1075 [Apprendi concerns the appropriate allocation of fact-finding responsibilities between judge and jury].) “This is what Apprendi teaches us: Except for sentence enhancement provisions that are based on a defendant’s prior conviction, the federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the ‘prescribed statutory maximum’ punishment for that crime. [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 326; see Blakely v. Washington (2004) 542 U.S. 296, 303-304 [124 S.Ct. 2531, 159 L.Ed.2d 403] [“relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings”].)

In this case, in full compliance with Apprendi, the jury found beyond a reasonable doubt that Ford had personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) and had personally and intentionally discharged a firearm proximately causing great bodily injury or death (§ 12022.53, subd. (d)) in committing the murder offense. Those findings were properly used to enhance Ford’s sentence by 25 years to life for the murder he committed.[13] Because the sentence enhancements under section 12022.53, subdivisions (c) and (d), are not independent substantive offenses or crimes (People v. Wims (1995) 10 Cal.4th 293, 304 [“California courts have long recognized that ‘[a]n enhancement is not a separate crime or offense’”]; see also People v. Bright (1996) 12 Cal.4th 652, 661, overruled on another ground in People v. Seel (2004) 34 Cal.4th 535 548-550 (Seel)), Ford’s punishment for both the underlying murder and the enhancements does not violate section 654’s prohibition on double punishment.

Ford’s additional reliance on the Supreme Court’s decision in Seel, supra, 34 Cal.4th 535 is equally misplaced. In Seel the Supreme Court held federal constitutional double jeopardy principles preclude a retrial of the special allegation that an attempted murder was willful, deliberate and premeditated (§ 664, subd. (a)) after a finding of insufficient evidence by the appellate court. (Seel, at pp. 548-550.) The Court reasoned that, in light of a defendant’s jury-trial rights as defined in Apprendi, supra, 530 U.S. 466, a special allegation under section 664, subdivision (a), is an element of an attempted murder offense, not a “typical sentencing determination, like a prior conviction allegation, to which double jeopardy protections do not apply.” (Seel, at p. 550.) Seel‘s holding concerning principles of double jeopardy has no bearing on Ford’s contention that punishment for an underlying offense and a sentence enhancement that imposes greater punishment because of the manner in which the offense is committed violates section 654’s prohibition on double punishment. Nothing in Seel undermines the legitimacy of the Legislature’s express directive that certain offenses should be punished more severely when they are accomplished with the use of a firearm. (See People v. Hutchins, supra, 90 Cal.App.4th at p. 1315.)

c. Lesser-included offenses

As a corollary to his Ireland merger and section 654 arguments, Ford asserts the trial court was required to strike the jury’s true findings and not impose sentences on the firearm enhancements under section 12022.53, subdivisions (c) and (d), because they are lesser-included offenses of the murder conviction itself.[14] As Ford recognizes, the Supreme Court held in People v. Wolcott (1983) 34 Cal.3d 92 (Wolcott) that enhancement allegations are not to be considered for purposes of determining lesser-included offenses. (Id. at p. 96 [“‘use’ enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses”].) Nonetheless, he asserts that, in light of the Supreme Court’s interpretation of Apprendi, supra, 530 U.S. 466 in Seel, supra, 34 Cal.4th 535, Wolcott can no longer be followed and enhancement allegations must be considered in the determination of lesser-included offenses for sentencing purposes.[15]

Nothing in either Apprendi or Seel undermines the Supreme Court’s holding in Wolcott that enhancement allegations have no bearing on determining lesser-included offenses. Apprendi held that sentencing enhancements must be tried to a jury. Based on Apprendi, the Supreme Court concluded in Seel that the premeditation allegation in an attempted murder case constitutes the functional equivalent of an element of the greater offense (attempted first degree murder, rather than attempted second degree murder) within the meaning of the federal double jeopardy clause: “‘[W]hen the term “sentence enhancement” is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.’” (Seel, supra, 34 Cal.4th at pp. 546-547, quoting Apprendi, supra, 530 U.S. at p. 494, fn. 19.) Neither the holding nor the reasoning of Seel conflicts with the conclusion in Wolcott that a firearm-use enhancement “‘does not prescribe a new offense but merely additional punishment . . . .’” (Wolcott, supra, 34 Cal.3d at p. 100.)[16] We remain obligated to follow Wolcott. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)[17]

DISPOSITION

The judgment is modified to reflect imposition of the mandatory $20 court-security fee pursuant to section 1465.8. As modified, the judgment is affirmed. The trial court is directed to forward a corrected abstract of judgment to the Department of Corrections.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

[1] Statutory references are to the Penal Code unless otherwise indicated.

[2] The information also alleged Ford had suffered a prior serious or violent felony conviction for assault with a firearm (§ 245, subd. (a)(2)) that constituted a “strike” under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served one prior prison term within the meaning of section 667.5, subdivision (b). Those prior-conviction allegations were dismissed by the People, as was the firearm-use enhancement under section 12022.53, subdivision (b).

[3] A third man was seen walking from the same direction as Ford and the man in the red shirt but was not found or identified.

[4] The additional 20-year firearm enhancement under section 12022.53, subdivision (c), found true by the jury was imposed and stayed. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 711, 713 [when the maximum § 12022.53, subd. (d) enhancement is imposed, duplicative firearm enhancements under the specific Penal Code provisions enumerated in subd. (f) of § 12022.53 should be stricken, but any duplicative enhancements under § 12022.53 itself must be imposed and stayed].)

[5] The trial court instructed the jury under CALJIC No. 2.03, “If you find that before this trial a defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”

[6] As Ford recognizes, his constitutional challenge to CALJIC No. 2.03, arguing it creates an impermissible inference of guilt relieving the People of proving every element of the crime beyond a reasonable doubt, has been rejected by the Supreme Court. (People v. Jackson (1996) 13 Cal.4th 1164, 1224 [consciousness-of-guilt instructions, including CALJIC No. 2.03, do not improperly endorse the prosecution’s theory or lessen its burden of proof]; see also People v. Stitely, supra, 35 Cal.4th at p. 555; People v. Boyette (2002) 29 Cal.4th 381, 438-439.)

[7] The trial court instructed the jury under CALJIC No. 2.62, “In this case the defendant has testified to certain matters. If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are more probable. The failure of a defendant to deny or explain evidence against him does not by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.”

[8] As with CALJIC No. 2.03, Ford’s constitutional challenge to CALJIC No. 2.62 has been rejected by the Supreme Court. (People v. Saddler, supra, 24 Cal.3d at pp. 679-680 [CALJIC No. 2.62 does not reverse or lighten the People’s burden of proof beyond a reasonable doubt by denying the presumption of innocence and replacing it with a presumption of guilt]; see People v. Lamer (2003) 110 Cal.App.4th 1463, 1471 [citing Saddler to reject defendant’s argument CALJIC No. 2.62 “violated his constitutional right to due process by requiring him to disprove the existence of an element of the offense”].)

[9] The jury was instructed on aiding and abetting principles under CALJIC Nos. 3.00 (principles defined); 3.00.01 (jury need not agree on theory of liability); and 3.01 (aiding and abetting defined).

[10] Distinguishing between an enhancement based on simple “use” and those based on “personal and intentional discharge,” Ford contends imposition of an enhancement under section 12022.53, subdivision (b), for personal use of a firearm would have been proper. The jury, however, was not asked to make a finding on the special allegation under section 12022.53, subdivision (b); and that allegation was dismissed on the People’s motion.

[11] Section 654, subdivision (a), provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”

[12] The applicability of section 654 to sentence enhancements and, in particular, to imposition of multiple enhancements for the single discharge of a firearm resulting in great bodily injury or death under section 12022.53, subdivision (d), is currently pending before the Supreme Court. (People v. Palacios, review granted May 11, 2005, S132144.)

[13] As explained, the 20-year term based on the jury’s true finding under section 12022.53, subdivision (c), was properly imposed and stayed. (People v. Bracamonte, supra, 106 Cal.App.4th at pp. 711, 713.)

[14] The Supreme Court has granted review in two cases that involve the relationship between enhancements and the charged offenses. (People v. Sloan, review granted June 8, 2005, S132605 [should enhancement allegations be considered in determining whether a lesser offense is necessarily included in a charged offense]; People v. Izaguirre, review granted June 8, 2005, S132980 [should an enhancement under § 12022.53, subd. (d), be considered a lesser-included offense within the conviction for first degree murder with a drive-by shooting special circumstance].)

[15] Ford thus asks us to follow Chief Justice Bird’s dissenting opinion in Wolcott, which argued enhancement allegations should be treated as part of the accusatory pleading in determining whether one offense is a lesser-included offense of another. (Wolcott, supra, 34 Cal.3d at pp. 111-112 (conc. & dis. opn. of Bird, C. J.).) The Supreme Court recently rejected use of the accusatory-pleading test as a means to determine whether multiple convictions are proper: “In deciding whether multiple conviction is proper, a court should consider only the statutory elements. . . . ‘[O]nly a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.’” (People v. Reed (2006) 38 Cal.4th 1224, 1229.)

[16] Even if we were to accept Ford’s basic contention, the “greater offense” would be first degree murder committed by the personal and intentional discharge of a firearm; the “lesser offense” would be first degree murder. Ford was punished only for that “greater offense,” not for both the greater and lesser offenses.

[17] Because the abstract of judgment incorrectly refers to the firearm enhancements under section 12022.5 rather than section 12022.53, we order the abstract of judgment corrected to reflect the imposition of a 25-year-to-life enhancement under section 12022.53, subdivision (d), and the imposition and stay of a 20-year enhancement under section 12022.53, subdivision (c). We also modify the judgment to reflect imposition of the mandatory $20 court-security fee. (§ 1465.8, subd. (a)(1) [“To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . .”].)