P. v. Bojorques

Filed 3/1/07 P. v. Bojorques CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Victoria M. Chavez, Judge. Affirmed in part and reversed in part.

Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Sharon E. Loughner, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant, Ismael Bojorques, appeals from the judgment entered following his conviction, by jury trial, for discharging a firearm at an occupied vehicle, with great bodily injury and firearm use enhancements (Pen. Code,  246, 12022.7, 12202.53).[1] Sentenced to state prison for 30 years to life, Bojorques claims there was trial and sentencing error.

The judgment is affirmed in part and reversed in part.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following:    

1. Prosecution evidence.

On October 22, 2004,[2] at around 4:00 p. m., Saul V. was driving his gold Nissan on Downey Avenue, near Paramount High School, with Daniel V. sitting in the front passenger seat. Defendant Bojorques, in his blue Toyota, pulled up on the right side of Sauls car. Bojorques called out, Fuck Dominguez Vario, started shooting and then sped away. One of the bullets hit Saul in the head. The Nissan rolled to the curb and stopped. Daniel managed to get Saul into the passenger seat and drive him to the hospital. Deputy Sheriff Rod Barton found Daniel waiting outside the hospital emergency room and took a statement from him. Daniel identified Bojorques as the gunman.

Bojorques was arrested two days later. His car was searched and police found a .25 caliber bullet casing under one of the floor mats. During surgery, a .25 caliber bullet fragment had been removed from Sauls head. No weapon was ever found.

Saul, who had sustained serious head injuries in the shooting, gave halting and often incoherent testimony at the trial. However, he did testify he saw Bojorques pointing a gun at him from about 10-12 feet away. He also testified he did not see Daniel in possession of a gun at the time of the shooting, and he denied having ever gone to Bojorquess house with a gun.

Daniel, who testified only after having been granted immunity, denied knowing Bojorques. Daniel was with Saul when Saul got shot in the head, and neither of them was armed that day. Daniel testified he heard gunfire, but he did not see the other car or the gunman. He could not recall talking to Deputy Barton at the hospital, identifying Bojorques as the gunman, or showing the police where Bojorques lived. Daniel testified he had been associated with the Dominguez Vario gang for about six years, but claimed he no longer hung around with them. He said Saul was not a gang member.

Deputy Barton testified that when he encountered Daniel outside the emergency room, Daniel was covered in blood and seemed to be dazed. Daniel said he and Saul were members of the Dominguez Vario gang. They had been driving down the street when a blue or green Toyota pulled up on their left. Daniel recognized the driver as a San Street gang member named Crook. Crook yelled out Fuck D.V. or Fuck Dominguez Vario, pulled out a black semi-automatic pistol and fired at Sauls car. Daniel showed Barton where Crook lived and, without hesitation, he identified Bojorques from a photo array as the person he knew as Crook.

2. Defense evidence.

Bojorques testified he had joined the San Street gang when he was 14 or 15, and had been active in the gang for about two and one half years. But after being released from a juvenile hall camp placement in 2001, when he was 18, he quit the gang.

Bojorques testified he and his family had experienced ongoing problems with the Dominguez Vario gang in the months preceding the shooting. In June or July, some gang members broke into his familys house. About a month later, Saul showed up at Bojorquess house, pulled out a gun and tried to start a fight. Another time, Daniel and two others challenged Bojorques to fight. Because they were right in front of Bojorquess house, he felt he had no choice but to fight and they beat him up. During another fight, Daniel had a knife but he didnt stab Bojorques. Bojorquess mother sent two of his brothers to Atlanta to get them away from this gang harassment. Bojorques did not go with them because his girlfriend was expecting a baby. Bojorques had seen both Saul and Daniel drive past his house. He had seen Saul drive past in a gold car.

On the day of the shooting, the first time Bojorques saw Sauls car they were going in opposite directions. Saul and Daniel mad dogged him which, Bojorques explained, It looks like the sun is in their face. Theyre mad dogging me. Its like an aggression or something. Although Bojorques did not see Saul make a U-turn, the next thing he knew Sauls car was behind him. Bojorques testified, I was in fear of my life. . . .  I knew they were up to no good because . . . of what has happened in the past. Saul pulled up on the Bojorquess right and Bojorques saw a gun being pointed at him: [T]heyre right next to me. I see a gun. Its pointed at me. [] Q   From their car? [] A   From their car. [] Q   Do you know which of the two, Daniel or Saul, pointed the gun? [] A   Im not sure who was holding it.

Bojorques had a gun in his car. He had bought it a few months before because of the Dominguez Vario gang harassment. The gun was in the center console between the two front seats. When he saw a gun being pointed at him from Sauls car, Bojorques reached into the console, grabbed his gun, yelled Stop fucking with me, and fired without aiming. Q   Okay. So you reached in. You pulled the gun out, and youre [sic] testimony was you never even aimed? [] A   I didnt aim. [] Q   Did you look over at them. [] A   I looked. And I just shot.

After the shooting, Bojorques drove home. He was shocked by what he had done. At his house, he destroyed the gun with a hammer and searched his car for any shell casings. He was trying to get rid of evidence that would tie him to the shooting.

Bojorquess girlfriend, Sonia, testified their baby was born about a week before Saul got shot. She described an earlier incident when she happened to drive up to Bojorquess house and saw Saul pointing a gun at Bojorques. Bojorques said he didnt want any trouble because there were children present. When Sonia told Saul to leave her boyfriend alone, Saul pointed the gun at both Bojorques and Sonia. Sonia testified that after this incident, Dominguez Vario members kept driving by Bojorquess house throwing gang signs. Sonia had known Bojorques for three years and, during that time, he had not been an active gang member.

Bojorquess mother testified about the problems her family had suffered at the hands of the Dominguez Vario gang. The trouble started when the gang began giving drugs to another one of her sons and she asked Bojorques to do something about it. Her house was broken into on July 18. In August, she sent two other sons to Atlanta for their own protection. She often saw Saul driving past her house, beginning in May 2004. On July 16, she saw Bojorques being beaten up in her front yard.

CONTENTIONS

1. The trial court erred by refusing to allow Bojorques to impeach Saul with juvenile misconduct involving moral turpitude.

2. The trial court erred by sanitizing one of Daniels prior convictions for impeachment purposes.

3. The trial court erred by failing to instruct, sua sponte, on two lesser included offenses.

4. There was cumulative error.

5. Two great bodily injury jury findings must be vacated.

DISCUSSION

1. The trial court did not refuse to let Bojorques impeach Saul.

Bojorques contends the trial court erred by prohibiting him from impeaching Sauls credibility. Bojorques argues he should have been allowed to introduce evidence of the conduct underlying Sauls 1999 juvenile adjudication for vandalism, a crime of moral turpitude. The claim is meritless because the trial court did not prohibit this impeachment.

To impeach a witness, the California Constitution allows the use of any felony conviction necessarily involving moral turpitude, subject to the trial courts discretion to exclude the prior under Evidence Code section 352 as more prejudicial than probative. (People v. Castro (1985) 38 Cal.3d 301, 306.) Juvenile adjudications may not be used for impeachment because adjudications under Welfare and Institutions Code section 602 are not criminal convictions. (People v. Burton (1989) 48 Cal.3d 843, 861.) However, as Bojorques properly notes, the conduct underlying a juvenile adjudication may be used to impeach. (See People v. Lee (1994) 28 Cal.App.4th 1724, 1740.)

Citing People v. Campbell (1994) 23 Cal.App.4th 1488, the Attorney General argues that while felony vandalism is a crime of moral turpitude, misdemeanor vandalism is not, and that the record is silent as to whether [Sauls] juvenile adjudication was for felony or misdemeanor vandalism. But Campbell did not say misdemeanor vandalism was not a crime of moral turpitude; indeed, it suggested just the opposite. Campbell had been convicted for felony vandalism in 1983 when section 594 . . . provided in relevant part . . .  (a) Every person who maliciously (1) defaces with paint or any other liquid, (2) damages or (3) destroys any real or personal property not his own, in cases otherwise than those specified by state law, is guilty of vandalism. [] (b)(1) If the amount of defacement, damage or destruction is one thousand dollars ($1,000) or more, vandalism is punishable by imprisonment . . . in the county jail, imprisonment in the state prison not to exceed one year and one day, a fine of five thousand dollars ($5,000), or both such fine and imprisonment.  (Id.. at p. 1492, fn. omitted.) In holding that felony vandalism was a crime of moral turpitude, Campbell reasoned the crimes mens rea was maliciousness and that [s]uch a state of mind betokens that general readiness to do evil which constitutes moral turpitude. (Id. at p. 1493.) The current version of section 594 still requires maliciousness for both misdemeanor and felony vandalism.[3] Hence, under Campbells reasoning, both misdemeanor and felony vandalism would be crimes of moral turpitude.

Nevertheless, we conclude there was no error here because, contrary to Bojorquess assertion, the record does not demonstrate the trial court refused his request to impeach Saul with the conduct underlying his vandalism adjudication.

Bojorques asserts the trial court ruled he would not be allowed to present any evidence of the conduct underlying Sauls juvenile adjudication because [Bojorques] had not subpoenaed any witnesses to testify to that conduct, and the trial court mistakenly believed the prior conduct had to be proved through other witnesses rather than by having Saul admit the conduct on cross-examination.

This is not a fair reading of the record. Bojorques asserts the trial courts ruling was made during a pretrial discussion concerning evidentiary motions made by the prosecution.[4] The specific portion of this discussion cited by Bojorques was the following:

[The Court:] Number six, crimes of moral turpitude. If [Saul] or [Daniel] testify I know [Saul] is going to testify. Should we talk about that now? What kind of crimes does he have in his past?

[The prosecutor]: He has on August 13th, 2004 a 182 arrest. And on October 3rd

The Court: I only want to hear about convictions.

[The prosecutor]: No convictions, only arrests.

The Court: Okay. Well, if there are no arrests and nobody has subpoenaed anybody to come in and talk about the conduct, it doesnt sound like there is anything impeachable on [Saul]. [] Okay. So Im going to write no convictions. [] Now, were up to seven.

[Defense counsel]: Well, there is another

The Court: . . . . Sustained petition. Obviously we dont want to say anything about sustained petitions because thats improper. But if your gang expert, for example, says that he relied on information about vandalism . . . [in] coming to his conclusion that this crime was committed for the benefit of a gang, then I certainly dont have any problem with that coming in. Thats what gang experts rely on.

We disagree with Bojorquess assertion this colloquy demonstrates the trial court ruled he could not put on evidence to show the conduct underlying Sauls juvenile adjudication. The trial court merely indicated that, at this preliminary stage, it appeared there was not going to be any impeachment of Saul. Given the state of the record,[5] that appears to have been an accurate assessment. Defense counsel did not tell the trial court he wanted to ask Saul about the underlying conduct during cross-examination. In short, the factual predicate for Bojorquess claim is missing because nothing in the record we have before us demonstrates the trial court prohibited him from trying to impeach Saul.

2. Trial court did not err by sanitizing Daniels prior for impeachment purposes.

Bojorques contends the trial court erred by sanitizing, for impeachment purposes, one of Daniels prior convictions. This claim is meritless.

Daniel had suffered two prior felony convictions: unlawful driving or taking of a vehicle (Veh. Code,  10851) and possession of a firearm by a felon ( 12021). As to the firearm conviction, the trial court ruled the defense could use it for impeachment but, instead of naming the felony, the defense could refer to it only as a crime of moral turpitude. The trial court explained: I dont want any misuse of the possession [of] the gun by the jury. Bojorques argues the trial court erred by sanitizing Daniels prior in this fashion.

[T]rial courts have broad discretion to admit or exclude prior convictions for impeachment purposes . . . . The discretion is as broad as necessary to deal with the great variety of factual situations in which the issue arises, and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded. (People v. Collins (1986) 42 Cal.3d 378, 389.) When the witness subject to impeachment is not the defendant, those factors [guiding a determination whether the probative value of the impeachment is outweighed by its prejudicial effect] prominently include whether the conviction (1) reflects on honesty and (2) is near in time. [Citation.] (People v. Clair (1992) 2 Cal.4th 629, 654.) A ruling of this sort is reviewed for abuse of discretion. (Id. at p. 655.)

The trial court had discretion to sanitize Daniels prior because it involved conduct very similar to the crucial issue raised by his testimony, i.e., did someone in Sauls car point a gun at Bojorques just before Bojorques fired his own gun. The well-recognized danger in this situation is that the jury might misuse the prior by reasoning that, if the witness did something like this before, the witness was likely to have done it again. (See People v. Sandoval (1992) 4 Cal.4th 155, 178 [Because of the similarity of the prior to one of the charged crimes, the court offered to sanitize [defendants] prior by allowing reference to the conviction only as a prior felony conviction. It did not abuse its discretion in doing so.]; People v. Castro, supra, 38 Cal.3d at p. 306 [Although the majority of decisions examining the use of prior convictions for impeachment of witnesses in criminal cases has involved situations in which the defendant himself was the witness, subdivision (f) [of article I, section 28 of the California Constitution[6]] is by no means confined to that situation, but applies to all witnesses - the prosecutions, the defenses, as well as the courts own.].)

Bojorques argues that, without knowing what offense [Daniel] was convicted of committing, the jury could not properly use his prior conviction to assess his credibility. . . .  The jurors did not necessarily know what was meant by a felony involving moral turpitude. As far as they knew, it is merely a crime involving bad morals, not necessarily something that is deceitful or that involves a readiness to do evil. [] When a convicted felon possesses a firearm, it can readily be inferred that he intends to use it for an evil purpose. However, the jury could not properly determine [Daniels] readiness to do evil without knowing the nature of his offense. Although [Daniel] was impeached with his prior taking a vehicle conviction, the jury may have considered the possession of a firearm by a convicted felon to be more indicative of a readiness to do evil.

Bojorquess argument fails to take account of the recognized two-stage hierarchy for impeachment evidence. The California Supreme Court has divided crimes of moral turpitude into two groups. [Citation.] The first group includes crimes in which dishonesty is an element (i.e., fraud, perjury, etc.). The second group includes crimes that indicate a  general readiness to do evil,  from which a readiness to lie can be inferred. [Citation.]  . . .  [T]he inference [of dishonesty] is not as compelling in the latter case . . . . [Citation.] (People v. Chavez (2000) 84 Cal.App.4th 25, 28-29.) California courts have repeatedly held that prior convictions for burglary, robbery, and other various theft-related crimes are probative on the issue of the defendants credibility. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) Hence, Daniels Vehicle Code prior, which involved stealing, more directly impeached his credibility than the firearm prior.

The jury heard defense counsel ask Daniel if it was true hed been convicted of a felony for joyriding or unlawful possession of a car and, when Daniel responded affirmatively, defense counsel asked, Isnt it true you were convicted of another felony of a crime of moral turpitude . . . ? In this circumstance, the jury was likely to have inferred the second felony had the same tendency to discredit Daniels testimony as the first felony. So, if anything, Bojorques was benefited rather than hurt by the sanitization.

We also disagree with Bojorquess argument, in which he cites Olden v. Kentucky (1988) 488 U.S. 227 [102 L.Ed.2d 513], that evidence of such probative value [i.e., the fact Daniels prior was for felon in possession of a firearm] concerning a key prosecution witnesss veracity cannot properly be excluded on the ground of undue prejudice to the prosecution.

In Olden, a state appellate court held that significant impeachment evidence, demonstrating a specific reason the alleged victim might have falsely accused the defendant, had been properly excluded at trial on the ground its probativeness was outweighed by the danger that revealing [the witnesss] interracial relationship would prejudice the jury against her. (Olden v. Kentucky, supra, 488 U.S. at p. 232) Olden held: While a trial court may, of course, impose reasonable limits on defense counsels inquiry into the potential bias of a prosecution witness, . . . the limitation here was beyond reason. Speculation as to the effect of jurors racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of [the prosecution witnesss] testimony. (Ibid.) But here, on the other hand, there was a substantial risk the jury might conclude Daniel had pointed a gun at Bojorques because the impeachment felony involved possession of a gun. Moreover, Daniel was also impeached with the vehicle taking felony by name, and that felony was more reflective of dishonesty.

We conclude the trial court did not abuse its discretion by sanitizing Daniels firearm possession prior for impeachment purposes. (See People v. Clair, supra, 2 Cal.4th at p. 655.)

3. No error in failing to instruct on lesser included offenses.

Bojorques contends the trial court erred by failing, sua sponte, to instruct on negligent discharge of a firearm and assault with a firearm as lesser included offenses of shooting at an occupied motor vehicle ( 246). This claim is meritless.

a. Legal principles.

  It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citation.]  (People v. Breverman (1998) 19 Cal.4th 142, 154.) When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so. [Citations.] (People v. Webster (1991) 54 Cal.3d 411, 443.) In this context, substantial evidence is evidence from which reasonable jurors could conclude the lesser offense, but not the greater, had been committed. (People v. Breverman, supra, 19 Cal.4th at p. 162.)

b. Instruction on section 246.3 as lesser included offense was not required.

Section 246 provides, in pertinent part: Any person who shall maliciously and willfully discharge a firearm at an . . . occupied motor vehicle . . . is guilty of a felony . . . . Section 246.3, subdivision (a), provides: Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.

Section 246.3 is a lesser included offense of section 246. (People v. Overman (2005) 126 Cal.App.4th 1344, 1360-1363.) Bojorques argues the trial court should have instructed on section 246.3. Defendant reasons his own testimony showed he may have acted under a mistaken belief that he needed to defend himself so that he would not get shot, which negated the mens rea element of section 246 because the jury could have found that, although he did not act in reasonable self-defense, he also did not act maliciously.

The flaw in Bojorquess argument is that he has conflated the maliciousness element of section 246 with the malice element of homicide. [N]o authority suggests . . .  imperfect, or unreasonable, self-defense could apply in a prosecution for violation of section 246. Such a legal theory would be at odds with [the California Supreme Courts] characterization of unreasonable self-defense as a species of voluntary manslaughter. Because there was no authority supporting application of unreasonable self-defense to a prosecution for violation of section 246, that theory of defense could not be considered a general principle of law that was openly connected with the facts before the court, and the trial court had no duty to instruct on that theory sua sponte. [Citation.] (People v. Watie (2002) 100 Cal.App.4th 866, 882, italics added.)

People v. Flannel (1979) 25 Cal.3d 668, explained why imperfect self-defense negates the malice element of murder: [A] person who carefully weighs a course of action, and chooses to kill after considering reasons for and against, is normally capable of comprehending his societal duty to act within the law. If, despite such awareness, he does an act that is likely to cause serious injury or death to another, he exhibits that wanton disregard for human life or antisocial motivation that constitutes malice aforethought. (Italics added.) [Citation.] [] . . . No matter how the mistaken assessment [of a need for self-defense] is made, an individual cannot genuinely perceive the need to repel imminent peril or bodily injury and simultaneously be aware that society expects conformity to a different standard. Where the awareness of societys disapproval begins, an honest belief ends. It is the honest belief of imminent peril that negates malice in a case of complete self-defense; the reasonableness of the belief simply goes to the justification for the killing. (Id. at p. 679, fn. omitted.)

In other words, malice aforethought reflects or embodies a realization by the actor that his or her conduct violates social expectations. It is this realization that cannot be reconciled with an actors belief that he or she is acting in self-defense, because society approves the reasonable use of force to that end. (People v. Hayes (2004) 120 Cal.App.4th 796, 803.) On the other hand, [s]ection 246 is a general intent crime. [Citation.] As such, the term maliciously in section 246 is defined by section 7, item 4, as a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.  (People v. Watie, supra, 100 Cal.App.4th at p. 879.) Imperfect self-defense is simply irrelevant to a general intent crime. (See People v. Minifie (1996) 13 Cal.4th 1055, 1069 [imperfect self-defense does not apply to general intent crime like assault]; People v. Hayes, supra, 120 Cal.App.4th at pp. 801-805 [imperfect self-defense does not apply to general intent crime of mayhem]; People v. Tabios (1998) 67 Cal.App.4th 1, 8 [Because malice is irrelevant in first and second degree felony-murder prosecutions, a claim of imperfect self-defense, offered to negate malice, is likewise irrelevant.]

Imperfect self-defense cannot negate the maliciousness element of section 246 and, therefore, would not have allowed the jurors to convict on the lesser included offense of section 246.3 even if they believed Bojorques actually, but unreasonably, thought his life was in danger. The trial court instructed on complete self-defense,[7] and both the prosecutor and defense counsel told the jurors during closing argument that if they believed Bojorquess self-defense story they had to acquit him of all charges.[8] Bojorques was not entitled to an instruction on the lesser included offense of section 246.3.[9]

c. Assault with a firearm is not a lesser included offense of section 246.

Bojorques contends the trial court should have instructed, sua sponte, on assault with a firearm ( 245, subd. (a)(2)) as a lesser included offense of discharging a firearm at an occupied vehicle. This claim is meritless.

Bojorques concedes In re Daniel R. (1993) 20 Cal.App.4th 239, the only published case on this point, held that assault with a deadly weapon is not a lesser included offense of discharging a firearm at an occupied vehicle. As Daniel R. explained: [T]he gravamen of a section 246 violation is firing at the occupied vehicle. While the potential for injury to persons is implied in the statutory requirement the vehicle be occupied, the probability of injury is not the primary focus of the crime unlike an assault with a deadly weapon. To violate section 246 in this context it is not strictly necessary for a human being to be the target of the assault or that defendants acts demonstrate a conscious disregard for the life and safety of others. It is sufficient if the probable consequence of the defendants acts is the shots fired will make contact with the occupied vehicle itself. [] Stated another way, it is not necessary to a conviction of section 246 to prove the defendants act came dangerously close to actually physically injuring a person. [Citation.] It is enough if the probable result of the defendants willful act is some shots may make contact with any part of the car. (Id. at pp. 246-247, fn. omitted.) In sum, the elements of the two crimes are not congruent. Although the manner in which the two crimes differ may be subtle, such differences are sufficient to find violations of section 246 by discharging a weapon at an occupied vehicle without also necessarily attempting to use unlawful force on the person of another. We therefore conclude assault with a deadly weapon is not necessarily included in the crime of willfully and maliciously discharging a firearm at an occupied vehicle. (Id. at p. 247.)

Bojorques argues Daniel R. was wrongly decided. But even if it were,[10] a trial courts sua sponte duty to instruct on lesser included offenses is limited to generally accepted principles of law. (See People v. Breverman, supra, 19 Cal.4th at p. 154.) Where the only case on point holds that assault with a deadly weapon is not a lesser included offense of discharging a firearm at an occupied vehicle, Bojorques was not entitled to have the jury given a contrary instruction.

4.. There was no cumulative error.

Bojorques contends that, even if harmless individually, the cumulative effect of these claimed trial errors mandates reversal of his conviction. Because we have found no errors, his claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)

5. There was sentencing error.

Bojorques contends two sentencing findings by the jury were impermissibly reached because he was not given proper notice of the allegations. This claim is meritless. However, one of these findings must be vacated because it did not apply to defendants crime.

a. Procedural background.

In connection with Bojorquess conviction for discharging a firearm at an occupied vehicle ( 246), the jury made findings under section 1203.075 (no probation if crime committed with great bodily injury), section 12022.7 (infliction of great bodily injury) and section 12022.53, subdivision (d) (discharging a firearm and causing great bodily injury). Bojorques argues only the 12022.53 allegation was proper and that the 1203.075 and 12022.7 findings must be stricken because he did not receive adequate notice of those allegations.

The original information charged Bojorques with two counts of attempted murder. In connection with the charge of attempting to murder Saul, the information also contained allegations under sections 1203.075, 12022.7(a), 12022.53 and 186.22, subd. (b)(1)(A) (gang enhancement).[11] At the close of the Peoples case, the prosecutor moved to amend the information to add a [section] 246 under the Penal Code with a 12022.53(d) allegation. Defense counsel acknowledged the Peoples right to amend [the information] to conform to proof. After a short discussion, the trial court indicated it would add the section 246 charge as count 3 of the information, saying: All right. I could cover that with the jury. After Bojorques waived arraignment on this new charge, the following colloquy occurred:

The Court: Enter a plea of not guilty, and well proceed with the trial. [Count] 3 is 246 with a weapon allegation. [] I assume youre going to strike the (d) allegation and g.b.i. as Im not sure.

[The prosecutor]: There wasnt as to

The Court: It was on the verdict form, but Im not sure that you even alleged it.

[The prosecutor]: Ill write it down for you.

The Court: Actually I put it on the first draft.

In the aftermath of this ambiguous colloquy, the information was amended by interlineation to add a count 3, alleging a violation of section 246, with a section 12022.53, subdivision (d), firearm use enhancement allegation. The minute order for this day states: Peoples motion to add count 3 246 of the Penal Code and special allegations Penal Code sections 12022.53(d), 1203.075, 12022.7(a) and 186.22(b)(1)(A) is granted.

The trial court instructed the jury on the elements of attempted murder and discharging a firearm at an occupied vehicle. The trial court then said: It is alleged that the defendant intentionally and proximately discharged a firearm and caused great bodily injury to a person during the commission of the crimes charged. The trial court also instructed: It is alleged in counts 1 and 3 that in the commission of the felony, the defendant personally inflicted great bodily injury on Saul [V.]. If you find the defendant guilty of attempted murder or shooting at an occupied motor vehicle, you must determine whether the defendant personally inflicted great bodily injury on Saul [V.] in the commission or attempted commission of those crimes.

The verdict form for count 3 included allegations covering sections 1203.075, 12022.7, 12022.53, subdivision (d), and 186.22, subdivision (b)(1). The jury found the first three allegations true and the last allegation not true. At sentencing, the trial court imposed the five-year middle term on the section 246 conviction, a consecutive 25-years-to-life-term for the section 12022.53 firearm use enhancement, and then said, The allegation pursuant to [section] 12022.7(a) will not be imposed because of the fact that the weapon allegation [ 12022.53] will be imposed, and that is the greater, and that is the requirement.

b. Discussion.

In his opening brief, Bojorques pointed out that, when the prosecutor orally moved to amend the information to conform to proof, there was [n]o mention of any great bodily injury allegation other than that made under section 12022.3, subdivision (d). Because of that, Bojorques then argued, the jury findings with regard to sections 1203.075 and 12022.7 must be stricken. As the legal basis for this claim, he cited Stirone v. United States (1960) 361 U.S. 212 [4 L.Ed.2d 252]. But Stirone was based on the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him (id. at p. 217) because after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself (id. at pp. 215-216). Because Bojorques was charged by information rather than indictment, Stirone is no help to him.

In his reply brief, Bojorques makes a slightly different claim: It is a violation of due process to convict a defendant and send him or her to prison based upon a charge that was never made. Bojorques cites Cole v. Arkansas (1948) 333 U.S. 196 [92 L.Ed. 644], which said: No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. (Id. at p. 201.) In Cole the defendants had been charged, tried and convicted for violating one statute but, when they appealed on the ground of insufficient evidence, a state appellate court affirmed their conviction as though they had been tried and convicted for violating a different statute. (Id. at p. 202.) Similarly, Bojorques relies on People v. Thomas (1996) 42 Cal.App.4th 798,[12] which cited the Cole rule in holding Thomas had been improperly penalized under Health and Safety Code section 11350 after pleading guilty to a different statute, Health and Safety Code section 11352.

The issue here is a fundamentally different one: the amendment of an information to conform to proof. A trial court is routinely allowed to grant such a request. (See People v. Winters (1990) 221 Cal.App.3d 997, 1005 [Section 1009 authorizes amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination. . . .  [A] trial court correctly exercises its discretion by allowing an amendment of an information to properly state the offense at the conclusion of the trial.]; see 4 Witkin, Cal. Crim. Law (3d ed. 2000) Pretrial Proceedings, 217, p. 422 [[Penal Code section] 1009 gives the widest possible authority: An amendment may be allowed for any defect or insufficiency. Thus, the statute is intended to give the district attorney the same broad powers to amend an information as he or she had to frame it in the beginning, namely, to charge any offense shown by the evidence.]; see also, e.g., People v. Valles (1961) 197 Cal.App.2d 362, 371 [trial court did not err by allowing amendment of information to conform to proof by adding three other narcotics in addition to the one already charged, over the objection of defense counsel, after all the evidence had been presented and both sides had rested.].)

The preliminary hearing evidence put Bojorques on notice he was being charged with having inflicted great bodily injury on Saul, and the original information contained section 12022.7 and section 1203.075 allegations in connection with the attempted murder charges. This constituted adequate notice and properly allowed for a subsequent amendment of the information to conform to proof.[13]

However, there was an error because section 1203.075 only applies to the commission of certain enumerated crimes and discharging a firearm at an occupied vehicle is not one of them. Hence, that jury finding must be vacated.[14]

DISPOSITION

The judgment is affirmed in part and reversed in part. The conviction is affirmed. The section 1203.075 finding is vacated, but in all other respects the sentence is affirmed. The clerk of the trial court shall amend the abstract of judgment accordingly.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] All further calendar references are to the year 2004 unless otherwise specified.

[3] Section 594 now provides: (a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: [] (1) Defaces with graffiti or other inscribed material. [] (2) Damages. [] (3) Destroys. []. . .[] (b)(1) If the amount of defacement, damage, or destruction is four hundred dollars ($400) or more, vandalism is punishable by imprisonment in the state prison or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000), or if the amount of defacement, damage, or destruction is ten thousand dollars ($10,000) or more, by a fine of not more than fifty thousand dollars ($50,000), or by both that fine and imprisonment. [] (2)(A) If the amount of defacement, damage, or destruction is less than four hundred dollars ($400), vandalism is punishable by imprisonment in a county jail not exceeding one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.

[4] The trial court said, at the outset of this discussion: And Ive had an opportunity to review the Peoples motion with regard to the admission of statements attributed to Danny [V.] pursuant to Evidence Code section 1240. Ive also reviewed the Peoples trial brief and their 402 issues contained therein. [] I would like to at least go through the 402s before we call for a jury panel.

[5] Bojorques has failed to include in the record on appeal either the Peoples trial brief or any of the pretrial motions referenced by the trial court. It is axiomatic that it is the burden of the appellant to provide an adequate record to permit review of a claimed error, and failure to do so may be deemed a waiver of the issue on appeal. (People v. Akins (2005) 128 Cal.App.4th 1376, 1385.)

[6] Article I, section 28, subdivision (f), of the California Constitution provides: Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.

[7] The trial court told the jury: It is lawful for a person who is being assaulted to defend himself from attack, if as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so, that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person in the same or similar circumstances to be necessary to prevent the injury which appears to be imminent. [] A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. . . .  [] This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene. [] Evidence has been presented that . . . on prior occasions, the alleged victim threatened or assaulted . . . the defendant. If you find that this evidence is true, you may consider that evidence on the issues of whether the defendant actually and reasonably believed his life or physical safety was endangered at the time of the commission of the alleged crime. [] In addition, a person whos [sic] life or safety has been previously threatened or assaulted by another is justified in acting more quickly and taking harsher measures for self protection from an assault by the person or those persons than would a person who had not received threats from or previously been assaulted by the same person or persons. [] Actual danger is not necessary to justify self-defense.

[8] The prosecutor said, [S]elf-defense is an extremely important legal principal [sic]. It is a perfect defense. It is a defense for everything. And thats something that if you believe in this case, absolutely you find the defendant not guilty. In the end, if you think this is a legitimate use of self-defense, its a very easy verdict. Its a not guilty verdict. Defense counsel said, And to make it as simple as possible. Its lawful against unlawful. And if you believe that the defendant in self-defense did what he did, thats lawful. And the judge instructed you as to that.

[9] Although Bojorques also suggests his testimony demonstrates he might have been acting in the heat of passion, the only strong emotion he testified to was the fear of imminent danger, which led him to defend himself. Nor was section 246.3 required as a lesser included offense based on Bojorquess actual testimony. The only difference between sections 246 and 246.3 is that section 246 requires that a specific target (e.g., an inhabited dwelling or an occupied building) be in the defendants firing range. (People v. Overman, supra, 126 Cal.App.4th at p. 1362.) There was nothing in Bojorquess testimony that would have allowed the jury to find he did not shoot at the victims car. While he claimed not to have been aiming at anyone, his testimony makes it clear he was at least aiming at, or shooting toward, the victims car. Hence there was no evidence Bojorques violated section 246.3 rather than section 246. The trial court was not required to instruct on section 246.3 in this situation. (See People v. Breverman, supra, 19 Cal.4th at p. 162 [although a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence . . . the court is not obliged to instruct on theories that have no such evidentiary support].)

[10] Bojorques argues: [D]ischarging a firearm at an occupied motor vehicle is an act that, by its very nature, will probably and directly result in the application of physical force against another, even if the vehicle, and not a human being, is the target. In rebuttal to this reasoning, Daniel R. said: [A]n assault with a deadly weapon requires the defendant have the present ability to commit a violent injury on the person of another. . . .  [] This element of the offense of assault does not appear to be necessary to a conviction of maliciously discharging a firearm at an occupied vehicle. For example, in People v. Buttles (1990) 223 Cal.App.3d 1631 . . . , the question on appeal was whether a tractor/trailer rig was an occupied vehicle for purposes of a violation of section 246. In Buttles, a motorist on the freeway reported to the police she saw defendant in another car fire a weapon at a passing tractor/trailer rig. The defendant was arrested and charged with a violation of section 246. The tractor was hauling two sand and gravel trailers and the driver testified he heard nothing and was unaware someone had fired shots at his rig. On appeal the defendant argued because he only fired at the trailer and not the tractor his conduct was not proscribed under section 246. The Court of Appeal disagreed and held . . . when such a tractor/trailer rig is operated on a highway, it is an occupied motor vehicle within the meaning of that phrase as used in Penal Code section 246. [Citation.]     If one can violate section 246 while discharging a firearm at a vehicle at a location beyond the reasonable range or striking distance of a human target, it appears one may violate section 246 without having the present ability to inflict an injury on the person of another. (In re Daniel R., supra, 20 Cal.App.4th at p. 247.)

[11] The jury found the gang enhancement allegation to be not true.

[12] Bojorques has miscited this case as People v. Estep (1996) 42 Cal.App.4th 733.

[13] Bojorques argues there is an irreconcilable conflict between the minute order and the reporters transcript regarding the nature of the amended pleadings, and that [t]his is not a case where the circumstances provide reason to doubt the accuracy of the [reporters] transcript. We disagree. The transcript, as set forth above, is extremely ambiguous and this appears to be a case in which the minute order is more accurate. (See People v. Smith (1983) 33 Cal.3d 596, 599 [ It may be said . . . as a general rule that when, as in this case, the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerks minutes should prevail as against contrary statements in the reporters transcript, must depend upon the circumstances of each particular case. ].) Otherwise, why would defense counsel not object when the trial court instructed on, and gave the jury verdict forms pertaining to, the disputed allegations?

[14] It appears the appropriate finding would have been presumptive ineligibility for probation under section 1203, subdivision (e). However, we conclude there is no reason for resentencing because: the probation report indicated the trial court had to determine Bojorquess probation eligibility; the probation report recommended denying probation; there is no indication on the record the trial court would have considered granting probation, and the clerks transcript says probation was denied.