Filed 7/11/17 P. v.Fort CA4/2


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

LEE ARTHUR FORT,

Defendant and Appellant.


E064633

(Super.Ct.No. FVA1101665)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Shahla Sabet, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with modifications.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Lee Arthur Fort, and a codefendant, Andrew Stewart, were charged in the same information and tried together before separate juries for the first degree murder of Ronnie Simon and the first degree provocative act murder of Earlwin Donte Johnson. (Pen. Code, § 187, subd. (a); counts 1 & 2.) Defendant and Stewart were also charged with the first degree burglary of Simon’s house. (§ 459, subd. (a), count 3.) It was further alleged that defendant personally used a firearm in each count (§§ 12022.53, subd. (b) (counts 1 & 2), 12022.5, subd. (a) (count 3)), and that Stewart personally and intentionally discharged a firearm causing great bodily injury or death to Simon (§ 12022.53, subd. (d); count 1), and personally used a firearm (§ 12022.5, subd.(a); count 3).
At trial, the prosecution claimed that, on May 18, 2011, Stewart, defendant, and Johnson forcibly entered Simon’s house in Rialto through the front door with the intent to commit theft, robbery, or false imprisonment by violence. Simon had been in the front yard of the house cleaning a fish tank. Stewart, defendant, and Johnson suddenly “barged” into the house with Simon, wrestling over control of a sawed-off shotgun. Simon’s fiancé Crystal, her brother Edgar, and several other people were in the house. Simon yelled to Crystal to “[g]rab the guns.” Crystal and Edgar retrieved guns from the master bedroom and exchanged fire with Stewart and Johnson. Edgar also shot at defendant, who was still on the floor. Stewart shot Simon, killing him, while Simon was still on the floor.
Stewart, Johnson, and defendant ran from the house. Johnson was shot multiple times and was found dead in the street outside of Simon’s house. Stewart and defendant fled in a white van. Minutes later, police stopped the van; Stewart was driving and defendant was in the passenger’s seat. Two other persons fled from the van after the police began pursuing it but before they could stop it, and those two persons were never apprehended. Stewart testified their names were Rick and “Creep.” Defendant had been shot and was taken to a hospital.
Stewart testified he was mistakenly identified as one of the men who came into Simon’s house. He said he drove the white van to the house and waited in it while four men—defendant, Johnson, Rick, and Creep—who had ridden to the house in the van with Stewart, went to the house to deliver a package and to buy marijuana. Stewart’s jury, the “A” jury, acquitted Stewart of all the charges.
Defendant’s jury, the “B” jury, found defendant guilty of the second degree murder of Simon, the second degree provocative act murder of Johnson, and the burglary charge, but found the personal use allegations not true in each count. Defendant had one prior strike conviction, a 1990 conviction for shooting at an inhabited dwelling. (§§ 246, 667, subds. (b)-(i).) Defendant was sentenced to 60 years to life for the murders plus a concurrent 12-year term for the burglary.
Defendant was prosecuted for the provocative act murder of Johnson based on two alternative theories. The first was that defendant committed provocative acts, which proximately caused Edgar and Crystal to shoot and kill Johnson, by bringing the shotgun into the house and by wrestling with Simon over the shotgun. (CALCRIM No. 560 [Homicide: Provocative Act by Defendant].) The second theory was that defendant aided and abetted Stewart in the burglary, and Stewart committed provocative acts resulting in Johnson’s death by shooting Simon on the floor and by shooting at Edgar, which prompted Edgar and Crystal to shoot and kill Johnson. (CALCRIM No. 561 [Homicide: Provocative Act by Accomplice].)
In this appeal, defendant claims CALCRIM No. 561 erroneously allowed his jury to find him vicariously liable for the provocative act murder of Johnson based on his acts of aiding and abetting Stewart in the burglary, without finding he acted with malice. We agree that CALCRIM No. 561 erroneously omitted the malice element of murder, and the element was not supplied by other instructions. CALCRIM No. 520, which defined malice, told the jury it could not convict defendant of murder unless it found he acted with malice. But the jury was instructed that CALCRIM No. 520 did not apply to count 2 and only applied to count 1. CALCRIM No. 560 instructed on the malice element of murder, but CALCRIM No. 561 did not. Thus, the instructions allowed the jury to convict defendant of the provocative act murder of Johnson based on his acts of aiding and abetting Stuart in the burglary and a provocative act of Stewart, without finding defendant acted with malice in aiding and abetting Stewart in the burglary.
Nonetheless, the error was harmless beyond a reasonable doubt. The jury must have found defendant acted with implied malice when he aided and abetted Stewart in the burglary. The only way defendant was alleged to have aided and abetted the burglary was by bringing the shotgun into the house and wrestling with Simon over control of the shotgun. These acts were inherently dangerous to human life and thus necessarily showed defendant acted with implied malice in aiding and abetting Stewart (or the accomplice identified as Stewart) in the burglary.
Additionally, the prosecution claimed defendant aided and abetted Stewart in the murder of Simon in count 1 by committing the same two provocative acts defendant committed in aiding and abetting Stewart in the burglary: by bringing the shotgun into the house and wrestling with Simon over control of the shotgun. In convicting defendant of the second degree murder of Simon in count 1, the jury necessarily did not rely on the first degree felony-murder instructions in count 1 but on the prosecution’s alternative second degree murder theory that defendant aided and abetted Stewart in killing Simon in count 1. Thus, in finding that defendant aided and abetted Stewart in the murder of Simon in count 1, the jury necessarily found that defendant acted with implied malice in bringing the shotgun into the house and wrestling with Simon over the shotgun.
Defendant also raises two claims of sentencing error. He claims his counsel was ineffective in failing to make a Romero motion to strike his 1990 prior strike. We conclude defense counsel was not deficient in failing to make the Romero motion, and there is no reasonable probability the court would have stricken the prior strike. Defendant also claims his 12-year concurrent sentence for the burglary should have been stayed. (§ 654.) We agree and amend the judgment to stay the imposition of the 12-year term on the burglary conviction. We affirm the judgment in all other respects.
II. BACKGROUND
A. Prosecution Evidence
1. The Burglary and Shootings
On May 18, 2011, Simon lived in a house in Rialto with his fiancé Crystal, her two children, and her mother Marie. Crystal’s brother Edgar and his girlfriend Shanal Burroughs were staying in the house as guests.
At approximately 8:45 that evening, Simon was in the front yard of the house cleaning a fish tank. Crystal was in the kitchen, Edgar and Shanel were in a bedroom folding clothes, and Marie was in the family room. Crystal’s two children were also in the house.
Marie heard the front door “slam open.” Three men then “barged” into the house while wrestling with Simon. The three men were later identified as defendant, Johnson, and Stewart. As Simon and the three intruders came into the house, Edgar heard a loud “popping” noise. Simon, defendant and one of the two other intruders—Johnson or Stewart—fell to the floor, wrestling over a sawed-off shotgun. According to Crystal, the shotgun did not belong to Simon, and she had never seen it before. Simon yelled Crystal’s name twice, then yelled for her to “[g]rab the guns.” Either Johnson or Stewart—the intruder who did not fall to the floor with Simon and defendant—locked the front door.
After he heard Simon yell, “[g]rab the guns,” Edgar grabbed a .22-caliber semiautomatic rifle from the master bedroom and ran to the living room. Stewart and Johnson were standing near the front door. Stewart fired a .357 chrome magnum handgun at Simon, who was still on the floor wrestling with defendant. Edgar then began shooting at Stewart, and Stewart began shooting at Edgar. Johnson pulled a handgun from his sweater pocket and began shooting at Edgar. Stewart and Johnson struggled to open the front door, then ran outside. Edgar then fired his last three shots at defendant, who was still on the floor near Simon. Defendant then got up and ran outside.
Crystal retrieved a .38-caliber revolver from the master bedroom after she heard Simon yell for her to “[g]rab the guns.” After Edgar began shooting at Stewart and Johnson but before Edgar shot at defendant on the floor, Crystal put her hand around the corner of a wall near the living room and fired several shots at Stewart and Johnson. After defendant, Stewart, and Johnson ran outside, Edgar and Marie called 911 and reported the incident.
Stewart and defendant fled in a large white van. Johnson’s body was found in the street outside Simon’s house. Johnson died of multiple gunshot wounds, minutes after he was shot. Simon suffered two fatal gunshot wounds and also died within minutes after he was shot. Simon’s body was found on the living room floor near the sawed-off shotgun. The shotgun was loaded but had not been fired.
2. The Arrests and Investigation
At 8:49 p.m., a police officer saw a large white van and began following it in his marked patrol car. The officer activated his overhead lights, but the van did not stop. The van slowed down, and two individuals jumped out of the van and ran. Those two individuals were never found. The van sped away but stopped in the middle of the road.
When the van stopped, Stewart was in the driver’s seat, defendant was in the front passenger seat, and no one else was in the van. Stewart was taken into custody. Defendant had been shot twice and was taken into custody and transported to a hospital.
A roll of duct tape was found in defendant’s pants pocket when he was apprehended, and a second roll of duct tape was found in defendant’s underwear at the hospital. A revolver with six expended shots and a pair of gloves with the tag still on them were found on the third bench seat of the van, near the rear of the van. Three other pairs of gloves were found in the front area of the van. One glove was in the passenger footwell and another was between the passenger seat and seat belt strap, where defendant was sitting. The other gloves were found next to and under the driver’s seat, behind the driver’s seat, and behind the passenger’s seat. Another pair of gloves was found on Johnson.
There was no blood on any of the gloves. No ballistics testing was performed to trace any of the bullets or bullet casings found at the scene or recovered from the bodies of Simon and Johnson to any of the guns that were found and apparently used during the shooting.
B. Defense Evidence
Defendant did not testify. Stewart testified he was driving the white van that night and wanted to obtain some marijuana, so he called defendant because defendant usually had good marijuana. Defendant agreed to get some marijuana for Stewart if Stewart would give defendant a ride to deliver a package at the location where defendant would be getting the marijuana. Stewart agreed and picked up defendant in the van. When Stewart picked up defendant, Johnson and two other men (called Rick and Creep) were also present. The four men rode along in the van with Stewart.
When they arrived at Simon’s house, defendant, Johnson, Creep, and Rick got out of the van and went up to the house while Stewart waited in the van. Stewart could see the four men meet two or three men on the porch of the house. After Stewart began playing with his phone and the radio, all of the men began fighting, then Stewart heard gunshots. Defendant, Creep, and Rick came running back to the van. Defendant told Stewart he had been shot and needed to be taken to the hospital. Creep was in the backseat of the van, slouched over and holding his shoulder area.
Stewart began to drive away but stopped and got out of the van when he noticed Johnson was not in the van. Stewart saw Johnson on the ground. Johnson began spitting up blood, then became quiet, and Stewart thought Johnson was dead. Creep came up to Stewart and said, “He’s gone” and “Let’s go.” Because Creep had a gun in his hand, Stewart got back into the van with defendant, Rick, and Creep, and drove away.
After Stewart noticed that a police car was following the van, Stewart stopped the van, and Creep and Rick jumped out. Stewart explained he continued driving because defendant needed to go to a hospital and because he believed Creep might start shooting and bullets might hit the van. Soon after Creep and Rick got out of the van, Stewart again stopped the van, and Stewart and defendant were arrested.
III. DISCUSSION
A. The Instructions Erroneously Did Not Require the Jury to Find Defendant Acted with Malice to Find Him Guilty of the Provocative Act Murder of Johnson Based on a Provocative Act of Stewart, but the Error Was Harmless Beyond a Reasonable Doubt
Defendant’s jury found him guilty of the second degree provocative act murder of Johnson in count 2. Defendant claims the court erroneously instructed his jury, pursuant to CALCRIM No. 561, that he could be found vicariously liable for the provocative act murder of Johnson based on evidence that Stewart committed a provocative act by shooting Simon and shooting at Edgar, which resulted in Edgar and Crystal shooting Johnson to death, without requiring the jury to find that defendant acted with malice when he aided and abetted Stewart in the commission of the burglary.
We agree CALCRIM No. 561 and the instructions as a whole erroneously allowed defendant’s jury to convict him of the provocative act murder of Johnson based on defendant’s acts of aiding and abetting Stewart in the burglary, without necessarily finding that defendant acted with malice, if the jury found a provocative act of Stewart, rather than a provocative act of defendant, proximately caused Edgar and Crystal to shoot and kill Johnson. Nonetheless, the error was harmless beyond a reasonable doubt, because no reasonable juror could have concluded defendant did not act with implied malice when he aided and abetted Stewart in the burglary.
1. Relevant Background
Defendant was charged with the murder of Simon in count 1 based on the felony-murder rule and as an aider and abettor to Stewart’s act of shooting Simon. Defendant was prosecuted for the murder of Johnson based solely on the provocative act doctrine and not on a felony-murder theory. The felony-murder theory did not apply in count 2 because either Edgar, Crystal, or both of them, rather than one of defendant’s accomplices, shot and killed Johnson. (People v. Concha (2009) 47 Cal.4th 653, 661, fn. 2 [felony-murder rule applies only when defendant or an accomplice commits the killing because a killing by a third party in response to a provocative act is not committed to perpetrate the felony].)
Defendant was prosecuted for the provocative act murder of Johnson based on two alternative theories—the first was based on defendant’s provocative acts in (1) bringing the shotgun into Simon’s house, and (2) wrestling with Simon over the shotgun. The second was based on Stewart’s provocative acts in (1) shooting Simon, and (2) shooting at Edgar, which caused Edgar and Crystal to shoot and kill Johnson. The jury was instructed on the first theory pursuant to CALCRIM No. 560 (Homicide: Provocative Act by Defendant) and on the second theory pursuant to CALCRIM No. 561 (Homicide: Provocative Act by Accomplice). The jury was also instructed on aiding and abetting, both generally and for specific act crimes. (CALCRIM Nos. 400, 401.)
CALCRIM No. 520 (First or Second Degree Murder with Malice Aforethought), instructed the jury that defendant could not be convicted of murder in count 1 or 2 unless he acted with malice. But during deliberations, the jury sent the court a note asking whether CALCRIM No. 520 applied “only” to count 1. After discussing the matter, the parties agreed, and the court instructed the jury that CALCRIM No. 520 “only” applied to count 1.
As we explain, it was error to tell the jury that CALCRIM No. 520 only applied to count 1 and did not apply to count 2. The omission of the malice element of murder, for purposes of CALCRIM No. 561, effectively told the jury that it could convict defendant of the provocative act murder of Johnson in count 2, based on a provocative act of Stewart, without necessarily finding defendant acted with malice in aiding and abetting Stewart in the burglary.
2. Applicable Legal Principles
“Under the theory of provocative act murder, the perpetrator of an underlying crime is held liable for the killing of an accomplice by a third party. [Citation.]” (People v. Mejia (2012) 211 Cal.App.4th 586, 602-603.) A defendant cannot be vicariously liable for any murder, including provocative act murder, based on the mental state of his accomplice. (Ibid.; People v. Concha, supra, 47 Cal.4th at p. 660.) Rather, the defendant must personally act with malice aforethought, the requisite mental state of murder, either in committing a provocative act that results in the killing of an accomplice, or in aiding and abetting a surviving accomplice in the commission of the underlying crime, where that accomplice commits a provocative act resulting in the death of another accomplice. (People v. Mejia, supra, at pp. 603-604; People v. Concha, supra, at p. 660.)
Provocative act murder may be of the first or second degree. (People v. Mejia, supra, 211 Cal.App.4th at p. 604.) “When the defendant acts with express malice alone or with implied malice, provocative act murder is of the second degree. When the defendant acts with express malice and is also willful, deliberate, and premeditated, [provocative act murder] is murder of the first degree.” (Ibid.) Express malice is shown when a defendant intentionally acts with a specific intent to kill or aids and abets in the underlying crime with the same state of mind. (Ibid.) Implied malice is shown when, with conscious disregard for human life, a defendant intentionally acts in a manner inherently dangerous to human life or, with the same state of mind, aids and abets an accomplice in the commission of the underlying crime. (Ibid.)
3. Analysis/Instructional Error
We review de novo a claim that the court failed to properly instruct the jury on the applicable principles of law. (People v. Canizalez (2011) 197 Cal.App.4th 832, 850.) In reviewing a claim of instructional error, we look not only at the challenged instruction—here, CALCRIM No. 561—but at the instructions as a whole in the context of the entire trial record. (People v. Mejia, supra, 211 Cal.App.4th at p. 617; People v. Rundle (2008) 43 Cal.4th 76, 149.)
We begin by discussing the critical difference between CALCRIM Nos. 560 and 561. CALCRIM No. 560 allowed the jury to convict defendant of the provocative act murder of Johnson if it found a provocative act of defendant proximately caused Edgar and Crystal to shoot at and kill Johnson. By contrast, CALCRIM No. 561 allowed the jury to convict defendant of the provocative act murder of Johnson if it found a provocative act of Stewart proximately caused Edgar and Crystal to shoot at and kill Johnson, and if the jury found defendant aided and abetted Stewart in committing the burglary, while knowing Stewart’s criminal purpose in committing the burglary.
CALCRIM No. 560 told the jury the People were alleging defendant committed two provocative acts: (1) bringing a firearm into Simon’s residence; and (2) wrestling with Simon over control of the shotgun. CALCRIM No. 561 told the jury the People were alleging that Stewart committed two provocative acts: (1) shooting Simon on the floor; and (2) shooting at Edgar. Importantly, the People alleged that defendant’s two provocative acts in bringing the shotgun into the house and wrestling with Simon over control of the shotgun were the same acts by which defendant aided and abetted Stewart in the burglary.
Defendant does not challenge CALCRIM No. 560 and concedes that it properly instructed on the malice element of murder. Indeed, though CALCRIM No. 560 did not use the term “malice,” it effectively instructed the jury that it had to find defendant acted with malice to convict him of the provocative act murder of Johnson based on defendant’s own provocative acts of bringing the shotgun into the house and wrestling with Simon over the shotgun, which proximately caused Edgar and Crystal to shoot at and kill Johnson.
Defendant claims only CALCRIM No. 561 erroneously omitted the malice element of murder and allowed the jury to convict him of the provocative act murder of Johnson if it found Stewart was the provocateur—that Stewart’s provocative acts of shooting Simon on the floor and shooting at Edgar proximately caused the death of Johnson. We agree. CALCRIM No. 561 did not instruct on the malice element of murder, and the element was not supplied by the other instructions.
CALCRIM No. 561 instructed: “To prove that the defendant is guilty of murder under the provocative act doctrine, the People must prove that: [¶] 1. The defendant was an accomplice of Andrew Stewart in committing or attempting to commit residential burglary; [¶] 2. In committing or attempting to commit residential burglary, Andrew Stewart did a provocative act; [¶] 3. Andrew Stewart knew that the natural and probable consequences of the provocative act were dangerous to human life and then acted with conscious disregard for life; [¶] 4. In response to Andrew Stewart’s provocative act, Crystal Love or Edgar Love killed Earlwin Johnson; [¶] AND [¶] 5. Earlwin Johnson’s death was the natural and probable consequence of Andrew Stewart’s provocative act.”
CALCRIM No. 561 further instructed on accomplice liability: “The defendant is an accomplice of Andrew Stewart if the defendant is subject to prosecution for the identical offense that you conclude Andrew Stewart committed or attempted to commit. The defendant is subject to prosecution if he committed or attempted to commit the crime [of residential burglary] or if [¶] 1. He knew of Andrew Stewart’s criminal purpose to commit residential burglary; [¶] AND [¶] 2. The defendant intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the commission of residential burglary.”
CALCRIM No. 561 also addressed the difference between first and second degree provocative act murder: “If you decide that the defendant is guilty of murder, you must decide if the murder is first or second degree” and “[t]o prove that the defendant is guilty of first degree murder, the People must prove that: [¶] 1. As a result of Andrew Stewart’s provocative act, Earlwin Johnson was killed while Andrew Stewart was committing residential burglary; [¶] AND [¶] 2. Andrew Stewart specifically intended to commit residential burglary when he did the provocative act.” “Any murder that does not meet these requirements for first degree murder is second degree murder.”
Unlike CALCRIM No. 560, however, CALCRIM No. 561 nowhere instructed that the jury had to find defendant acted with malice to be convicted of the provocative act murder of Johnson, based on a provocative act of Stewart and defendant’s acts of aiding and abetting Stewart in the burglary. CALCRIM No. 561 thus suggested that the jury could convict defendant of the provocative act murder of Johnson based on defendant’s acts of aiding and abetting Stewart in the burglary and Stewart’s provocative act or acts, even if defendant acted without malice in aiding and abetting Stewart in the burglary.
The People concede CALCRIM No. 561 “did not explicitly state that [defendant] personally had to act with express or implied malice” in aiding and abetting Stewart in the burglary. But they argue the instructions as a whole, including the instructions on aiding and abetting (CALCRIM Nos. 400, 401) and on the malice element of murder (CALCRIM No. 520), “collectively left no doubt” that the jury had to find defendant acted with malice in order to find defendant guilty of the provocative act murder of Johnson. We disagree.
First, the instructions on aiding and abetting (CALCRIM Nos. 400 and 401) did not instruct on the malice element of provocative act murder. CALCRIM No. 400 told the jury: “A person may be guilty of a crime . . . [if] he or she . . . aided and abetted a perpetrator, who directly committed the crime,” and, “under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.” CALCRIM No. 401 mirrored CALCRIM No. 561’s instruction on accomplice liability by telling the jury, “[s]omeone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” But neither CALCRIM No. 400 nor 401 required the jury to find defendant acted with malice in order to convict him of the provocative act murder of Johnson.
Additionally, the People’s reliance on CALCRIM No. 520 disregards the court’s instruction to the jury during the jury’s deliberations that CALCRIM No. 520 applied “only” to count 1, and not to count 2. To be sure, before the jury was instructed to disregard CALCRIM No. 520 for purposes of count 2, CALCRIM No. 520 instructed the jury that defendant was charged in counts 1 and 2 with murder, and in order to prove defendant guilty of each murder, the People had to prove he (1) committed an act that caused the death of another person, and (2) when he acted, he had a state of mind called malice aforethought. CALCRIM No. 520 also defined express and implied malice.
In sum, by telling the jury that CALCRIM No. 520 only applied in count 1, the court erroneously failed to instruct the jury on (1) the malice element of murder for purposes of CALCRIM No. 561, and (2) the prosecution’s alternative theory that defendant was liable for the provocative act murder of Johnson if the jury found (a) he aided and abetted Stewart in the burglary and (b) the provocative act murder of Stewart proximately caused the death of Johnson.
4. The Error Was Harmless Beyond a Reasonable Doubt
An instructional error that omits an element of an offense requires reversal of a defendant’s conviction for the offense unless the record shows the error was harmless beyond a reasonable doubt. (People v. Gonzalez (2012) 54 Cal.4th 643, 662-663; People v. Flood (1998) 18 Cal.4th 470, 502-503; Chapman v. California (1967) 386 U.S. 18, 24.) In general, the Chapman test of harmless error probes “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citations.]” (Neder v. United States (1999) 527 U.S. 1, 15-16.)
Defendant argues that, in order to find the instructional error harmless, the record must show that the jury based its provocative act murder verdict on CALCRIM No. 560, rather than on the “legally erroneous” instruction, CALCRIM No. 561. (People v. Green (1980) 27 Cal.3d 1, 69; see People v. Guiton (1993) 4 Cal.4th 1116, 1121-1128 [when jury is instructed on alternative theories, some legally correct and others incorrect, the error is not harmless beyond a reasonable doubt unless the record shows the verdict was based on legally correct instructions]; People v. Chun (2009) 45 Cal.4th 1172, 1201, 1203-1205 [error in giving legally erroneous theory may be harmless based on entire trial record].) For several reasons, the error in instructing defendant’s jury that CALCRIM No. 520 did not apply to count 2, or in otherwise failing to instruct the jury that defendant had to have acted with malice to be found guilty of the provocative act murder of Johnson in count 2, could not have contributed to the jury’s guilty verdict in count 2.
First, defendant necessarily acted with implied malice when he either brought a shotgun into Simon’s house or wrestled with Simon over control of the shotgun. Forcibly bringing a shotgun into another person’s home, or forcibly wrestling with an occupant of the home over control of the shotgun inside the home, are inherently dangerous to human life because someone in the home could be shot with the shotgun, and either of the acts could prompt occupants of the home to shoot and kill, which is what happened here. Defendant was also found in possession of duct tape, and apparently had the duct tape on his person at the time of the burglary, which indicated he intended to perpetrate or aid and abet his accomplices, including Stewart or the man identified as Stewart, in committing the burglary. All of this evidence unequivocally showed that defendant acted with implied malice—a conscious disregard for life.
Second, the prosecution claimed and all of the evidence showed that defendant’s acts of bringing the shotgun into the house and wrestling with Simon over the shotgun were the only two provocative acts defendant committed. The prosecution claimed that, by committing these same two acts, or either of them, defendant did three things: (1) he proximately caused Edgar and Crystal to shoot at and kill Johnson (CALCRIM No. 560); (2) he aided and abetted Stewart in the burglary (and Stewart’s provocative acts in shooting Simon and in shooting at Edgar proximately caused Edgar and Crystal to shoot at and kill Johnson) (CALCRIM No. 561); and (3) he aided and abetted Stewart in murdering Simon in count 1 (CALCRIM Nos. 520, 540B).
Any juror who relied on CALCRIM No. 561, rather than on CALCRIM No. 560, to convict defendant of the provocative act murder of Johnson in count 2 would have concluded that the provocative acts of Stewart, either in shooting at Simon or in shooting at Edgar, proximately caused Edgar and Crystal to shoot at and kill Johnson. The same juror would have concluded that one of the provocative acts of defendant, in bringing the shotgun into the house or in wrestling with Simon over control of the shotgun, did not proximately cause Edgar and Crystal to shoot at and kill Simon. But the same juror could not have concluded that defendant did not act with implied malice in aiding and abetting Stewart in the burglary, either by bringing the shotgun into the house or by wrestling with Simon over control of the shotgun. For the reasons discussed, either of defendant’s two acts were necessarily dangerous to human life and demonstrated implied malice.
Furthermore, by convicting defendant of the second degree murder of Simon in count 1, the jury necessarily found that defendant acted with implied malice in aiding and abetting Stewart in the burglary, by either bringing the shotgun into the house or wrestling with Simon over the shotgun. In count 1, the jury was instructed on two alternative murder theories: (1) the felony-murder rule, which the jury was told would be first degree murder and could not be second degree murder; and (2) by aiding and abetting Stewart in the murder of Simon by bringing the shotgun into the house or by wrestling with Simon over control of the shotgun, which could be either first or second degree murder. By convicting defendant of the second degree murder of Simon in count 1, the jury necessarily rejected the first degree felony-murder theory and relied on the alternative theory that defendant aided and abetted Stewart in murdering Simon by bringing the shotgun into the house or by wrestling with Simon over the shotgun. In count 1, the jury was properly instructed on the malice element of murder pursuant to CALCRIM No. 520, and the jury necessarily found that defendant acted with malice in doing the aforementioned acts.
Thus, the error in CALCRIM No. 561 had to be harmless beyond a reasonable doubt—regardless of whether any juror relied on CALCRIM No. 561 to convict defendant in count 2 because they believed a provocative act of Stewart, rather than of defendant, proximately caused Edgar to shoot at and kill Johnson. (See People v. Chun, supra, 45 Cal.4th at p. 1205 [“No juror could have found that defendant participated in this shooting, either as a shooter or as an aider and abettor, without also finding that defendant committed an act that is dangerous to life and did so knowing of the danger and with conscious disregard for life—which is a valid theory of malice.”].)
Defendant argues the not true findings on the personal use allegations show there was “little or no evidence” he acted with implied malice. We disagree. In order to find defendant personally used a firearm in counts 1, 2, and 3, the jury was instructed to find he either (1) displayed the weapon in a menacing manner, (2) shot someone with the weapon, or (3) fired the weapon. (CALCRIM No. 3146.) The jury reasonably could have found defendant did none of these things, while still finding he brought the shotgun into the house and wrestled with Simon over the control of the shotgun inside the house and, thus, acted with implied malice in aiding and abetting Stewart in the burglary. Wrestling with Simon over control of the shotgun did not necessarily amount to displaying the shotgun in a menacing manner, and there was no evidence that defendant shot anyone with the shotgun or fired the shotgun. Still, defendant’s acts of bringing the shotgun into the house and wrestling with Simon over control of the shotgun demonstrated implied malice.
B. Defendant’s Trial Counsel Did Not Render Ineffective Assistance in Failing to Make a Romero Motion to Strike Defendant’s 1990 Prior Strike Conviction
The court found defendant had one prior strike conviction, a 1990 conviction for shooting at an inhabited dwelling. (§§ 246, 667, subds. (b)-(i).) Defendant claims his trial counsel was ineffective in failing to make a Romero motion, inviting the court to strike his 1990 prior strike allegation for sentencing purposes. (Romero, supra, 13 Cal.4th at p. 518; § 1385.) We find no ineffective assistance or resulting prejudice.
1. Relevant Background
Defendant was convicted in September 1990 of two felonies: (1) discharging a firearm at an occupied dwelling (§ 246), his prior strike; and (2) discharging a firearm in a grossly negligent manner (§ 246.3). In the bifurcated bench trial on the prior strike allegation, the parties stipulated that the two 1990 convictions arose from the same incident and should be deemed one strike. For both of his 1990 convictions, defendant was sentenced to seven years eight months in prison. Also, beginning in 1989 and continuing through 2006, defendant suffered numerous misdemeanor convictions and four drug-related felony convictions. At the time he committed the current offenses in May 2011, he had been out of prison and off parole supervision for “almost three years.”
Defense counsel did not move the court to strike his 1990 prior strike allegation or conviction. (Romero, supra, 13 Cal.4th at p. 518; § 1385.) After the court found the prior strike allegation true, the court sentenced defendant to two 15-year-to-life terms for the two murders, plus a concurrent upper term of six years for the residential burglary, and doubled each term based on the 1990 prior strike. Thus, defendant was sentenced to 60 years to life for the murders plus a concurrent 12-year term for the residential burglary.
2. Applicable Law and Analysis
A court has discretion to dismiss a prior strike allegation “in furtherance of justice.” (Romero, supra, 13 Cal.4th at pp. 529-531; see § 1385, subd. (a).) “‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.] To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice . . . but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclude[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
Our state high court has established “stringent standards that sentencing courts must follow in order to find such an exception.” (Carmony, supra, 33 Cal.4th at p. 377.) The relevant inquiry is “‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’” (Ibid.; see People v. Williams (1998) 17 Cal.4th 148, 161.)
Carmony emphasized that the Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (Carmony, supra, 33 Cal.4th at p. 378.) A trial court will abuse its discretion in failing to strike a prior strike allegation only if no reasonable minds could disagree that the defendant falls outside the spirit of the three strikes scheme. (Ibid.)
To establish a claim of ineffective assistance of counsel, the defendant must show by a preponderance of the evidence that (1) his or her counsel’s performance was deficient under prevailing professional norms, and (2) it is reasonably probable the defendant would have realized a more favorable result absent the deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 687-692.) “We presume ‘counsel’s conduct falls within the wide range of reasonable professional assistance’ [citations], and accord great deference to counsel’s tactical decisions.” (People v. Lewis (2001) 25 Cal.4th 610, 674.) “Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile.” (People v. Price (1991) 1 Cal.4th 324, 387; see People v. Thompson (2010) 49 Cal.4th 79, 122.) On direct appeal, the defendant must show his counsel had no rational tactical purpose for the challenged act or omission. (People v. Mickel (2016) 2 Cal.5th 181, 198.)
On this record, defense counsel reasonably could have concluded it would have been futile to ask the court to strike defendant’s 1990 prior strike. In addition to his 1990 prior strike for violating section 246 and his concurrent section 246.3 conviction, defendant had a lengthy criminal history, including four drug-related felony convictions, five prison sentences, four parole violations, and four misdemeanor convictions, all beginning in 1989 when he was 18 years old and continuing through 2006 when he was nearly 36 years old. Based on defendant’s criminal history alone, defense counsel could not reasonably have shown that defendant fell outside the spirit of the Three Strikes law. (Carmony, supra, 33 Cal.4th at p. 378.)
Defendant points out he was only 20 years old when he committed his 1990 prior strike, and he committed the strike 21 years before he committed the current offenses in May 2011. Again, however, in light of the nature and circumstances of his current offenses, his criminal history, and his failure to rehabilitate, defense counsel could have reasonably concluded that a Romero motion to strike the prior strike would have been futile. (People v. Johnson (2003) 114 Cal.App.4th 284, 305.)
Nor has defendant shown he was prejudiced by his counsel’s failure to ask the court to strike his 1990 prior strike. At sentencing, the court found defendant’s prior convictions as an adult were of increasing seriousness, that defendant had served prior prison terms, and that defendant’s prior performance on probation or parole was unsatisfactory. (Cal Rules of Court, rule 4.421(b) [circumstances in aggravation; factors relating to the defendant].) The court also found defendant’s current offenses “involved great violence” and “great bodily harm,” and “[t]he manner in which the crime[s] [were] carried out indicated planning and sophistication.” (Cal. Rules of Court, rule 4.421(a) [circumstances in aggravation; factors relating to the crime].)
For all of these reasons, the court sentenced defendant to the upper term of six years for the burglary conviction. For the same reasons, it is not reasonably probable the court would have stricken defendant’s 1990 prior strike conviction for sentencing purposes, had it been asked to do so. (People v. Gams (1997) 52 Cal.App.4th 147, 155 [defendant not prejudiced by counsel’s failure to move the court to strike a prior strike conviction where court concluded the defendant had “‘earned the high term’”]; People v. Johnson, supra, 114 Cal.App.4th at p. 306.)
C. Defendant’s 12-year Term on the Burglary Conviction Was Required to Be Stayed
Lastly, defendant claims the court violated section 654’s proscription against multiple punishment in imposing a concurrent term on his burglary conviction in count 3, rather than imposing but staying the term. He argues the murders were committed with the same intent and objective as the burglary: to obtain marijuana. We agree. Accordingly, we modify the judgment by staying defendant’s 12-year term on the burglary conviction.
“Section 654[ ] precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) “The purpose of section 654 is to prevent multiple punishment for a single act or omission [or indivisible course of conduct], even though that act or omission [or indivisible course of conduct] violates more than one statute and thus constitutes more than one crime. . . .” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135; see People v. Harrison (1989) 48 Cal.3d 321, 335.) Section 654 is intended to ensure that a defendant’s punishment is “commensurate with his culpability.” (People v. Perez (1979) 23 Cal.3d 545, 551.)
“It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (People v. Harrison, supra, 48 Cal.3d at p. 335.) If the defendant’s crimes “were merely incidental to, or were the means of accomplishing or facilitating one objective, [then the] defendant may be found to have harbored a single intent and therefore may be punished only once.” (Ibid., citing Neal v. State of California (1960) 55 Cal.2d 11, 19.)
“If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.] Although the question of whether defendant harbored a ‘single intent’ within the meaning of section 654 is generally a factual one, the applicability of the statute to conceded facts is a question of law. ([People v.] Perez, supra, 23 Cal.3d at p. 552, fn. 5.)” (People v. Harrison, supra, 48 Cal.3d at p. 335.)
Here, all of the evidence showed defendant harbored a single intent and objective in committing the burglary: to obtain marijuana or other property. In addition, there was no evidence defendant harbored a separate intent and objective regarding the commission of the murders, independent of his intent and objective in committing the burglary. Thus, section 654 required the court to stay the imposition of the 12-year term on the burglary conviction in count 3. (See People v. Hester, supra, 22 Cal.4th at p. 294 [§ 654 prohibited separate terms on assault and burglary convictions where the burglary was committed solely with the intent to commit the assault]; cf. People v. Cardenas (2015) 239 Cal.App.4th 220, 229-233 [multiple victim exception to § 654 applies where burglary is crime of violence based on allegations in charging document and found true by trier of fact].)
IV. DISPOSITION
The judgment is modified to stay defendant’s 12-year sentence on his burglary conviction in count 3 pursuant to section 654. The matter is remanded to the trial court with directions to prepare a supplemental sentencing minute order and an amended abstract of judgment reflecting this modification to the judgment, and to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

RAMIREZ
P. J.

McKINSTER
J.