P. v. Batiste

Filed 3/20/07 P. v. Batiste CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed as modified.

Janet T. Gray, 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, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

introduction

A jury convicted appellant Aaron L. Batiste of two counts of attempted murder (Pen. Code,  664/187, subd. (a)) and one count of mayhem ( 203);[1]as to all three counts the jury found true that appellant personally and intentionally discharged a firearm, causing great bodily injury ( 12022.53, subds. (b)-(d)). The jury found one of the counts of attempted murder was committed willfully, deliberately and with premeditation ( 664, subd. (a)). Appellant was also convicted of one count of negligent discharge of a firearm in public ( 246.3) and one count of assault with a firearm ( 245, subd. (a)(2)); as to the latter count the jury found that appellant personally inflicted great bodily injury ( 12022.7, subd. (a)).

The trial court sentenced appellant to state prison for a term of 88 years to life, consisting of: life with the possibility of parole for one count of attempted murder, plus 25 years to life for the section 12022.53 enhancement as to that count; the middle term of 4 years on the mayhem count, plus 25 years to life for the section 12022.53 enhancement as to that count, to run consecutively to the sentence on the prior count; the middle term of 2 years on the negligent discharge of a firearm count, to run consecutively; the middle term of 7 years for the second attempted murder count, plus 25 years to life for the section 12022.53 enhancement as to that count, to run consecutively to all other counts; and 1 year (one-third of the middle term of 3 years) for the assault with a firearm count, which the court ordered stayed pursuant to section 654.

In this appeal from the judgment of conviction, appellant claims the trial court erred by failing to stay, pursuant to section 654, (1) the 4-year sentence imposed for the mayhem count, (2) the 25-year-to-life enhancement under section 12022.53, subdivision (d) relating to the mayhem count, and (3) the 2-year sentence for the discharge of a firearm count. He also argues the court erred in imposing the section 12022.53, subdivision (d) enhancement on the mayhem count because it incorporates the definition of great bodily injury found insection 12022.7, and the latter section is not applicable where great bodily injury is an element of the underlying offense, as is the case with mayhem. Appellant also contends that the trial court erred in imposing full, consecutive terms on the subordinate, determinate counts ( 1170.1). Finally, he contends that the prosecutor committed prejudicial misconduct during closing argument, requiring reversal.

factual background

The Norrid Shooting

Around 9:30 a.m. on May 28, 2005, James Pettie was working under the hood of a car in front of an apartment building on Wilton Street in Long Beach, along with his friend Roger, the owner of the car. Kendall Norrid, known to Pettie as K.C., went into apartment one, then came back out. Appellant, known to Pettie as Captain Crunch and whom Pettie had known for a few months, walked past and asked where K.C. was; Pettie said he had just been there but was gone. Appellant was wearing a red, black, green, and yellow beanie on his head. Appellant went into apartment one, and shortly thereafter Pettie heard several popping sounds that sounded like firecrackers. Pettie looked up and saw appellant backing out of apartment one, holding a pistol. Pettie then saw K.C. come out of the apartment and fall in the doorway, holding the back of his head, which was bleeding. K.C. got up and said this fool done shot me. He told Pettie and Roger to take him to the hospital, and got into the car with Roger. Appellant walked past the car and down the street. Roger drove K.C. to the hospital.

Christopher Ransom lived in apartment one. He had known appellant, Captain Crunch, for several years, and had let him stay at the apartment for about six months. On the morning of the shooting, Ransom was asleep in his apartment. He awoke to the sound of about five gunshots that seemed to be coming from his front yard. Ransom heard his neighbor, James Kelly, say, No, Crunch, no. Ransom called 911, then went into his living room. His front door was open and there was a multi-colored beanie on the ground.

Officer Nathan Dunn of the Long Beach Police Department went to the scene of the shooting at around 9:45 a.m. on May 28, 2005. He saw a trail of blood drops leading into apartment one, and on the ground outside the door to the apartment he saw a multi-colored beanie. Inside the apartment he found an overturned chair and an expended bullet. Officer Dunn spoke to Ransom, who told him that appellants nickname was Crunch or Captain Crunch. The officer obtained a picture of appellant later that day, and Ransom identified the person in the photo as being Captain Crunch.

Norrid suffered one gunshot wound to his left arm above the wrist, and another small caliber wound where a bullet entered the back of his left shoulder and lodged near his neck. Another bullet had entered the back of his skull and lodged near his ear.

The McCrimmon Shooting

During the early morning hours of May 29, 2005, Majestic McCrimmon was at a social gathering at an apartment building in Long Beach near the intersection of Pacific Avenue and Pacific Coast Highway. She remained outside in the courtyard with several other people for a few hours. She saw appellant, but did not know him and did not pay much attention to him; he was just hanging around for awhile. Appellant stepped outside of the courtyard for a moment. When he walked back into the courtyard, he immediately pulled out a gun and shot McCrimmon, hitting her in the right side of her torso. She got up from her chair to run out of the courtyard, and he shot at her again, hitting her in the left cheek. He fired two more shots from behind her that missed. She had been sitting alone in a chair when he began shooting, but there were eight or nine people around her. She had to go around some people to exit through the courtyard gate; she then ran through the building and out the front gate.

McCrimmon ran to a nearby gas station and went inside the small store, asking the attendant to shut the door and call the police. She looked out and saw appellant coming after her, yelling Mac Jesus. The attendant locked the door. Appellant came to the window and looked around inside, then left. McCrimmon fell to the floor. She recalled seeing a police officer arrive then blacking out.

Melissa Hiltredh pulled into the gas station, intending to buy gas; her mother was in the car with her. She immediately heard a girl screaming. She saw McCrimmon standing in the doorway of the store, screaming for help, and then closing the door. Hiltredh hesitated before getting out of her car, but decided to go ahead and begin pumping the gas. She saw a man standing 12 to 15 feet away, wearing a dark blue jacket and very dark blue pants. The man, whom Hiltredh identified in court as appellant, was trying to look into the store, but also kept staring at Hiltredh. After about 30 seconds had elapsed, Hiltredh realized appellant had a gun in his hand. She saw the attendant locking the door. Her mother had started to get out of the car, but Hiltredh yelled at her to get back in, and drove away. She stopped her car nearby, looked to make sure appellant was not following her, then called 911. When the police arrived, she walked with them closer to the gas station, and saw appellant down the street. She pointed him out to the police, who then surrounded him. A police officer drove Hiltredh over to where other officers were holding appellant. The officer told her to be sure she was positive that it was appellant she had seen holding the gun. Hiltredh was sure she identified the correct person.

As Long Beach Police Officers Kevin Skeen and Brandon Mitchell arrived at the scene, they heard two gunshots. They found McCrimmon inside the store, in a fetal position on the floor, holding her stomach and face. Officer Keith Finch also responded to the scene and, assisted by other units, stopped appellant, handcuffed him, and put him in a police car. When Hiltredh identified him as being the shooter, appellant became combative. As the officers attempted to search him, appellant leaned forward and Finch saw a small gun protruding from his rear pocket. They removed the gun, at which point appellant became extremely combative.

Dr. James Murray operated on McCrimmon. She had a bullet wound on the lower right portion of her chest. The bullet had gone through her lung cavity, collapsing her lung, through her diaphragm, and through her liver. She also had a graze wound on her left cheek. A bullet was recovered during the operation and given to Officer Finch.

McCrimmon remained in the hospital for one week. At the time of trial, she continued to have breathing problems when she exerted herself, especially in the heat. Her face had healed.

Criminalist Troy Ward tested the gun recovered from appellants pocket, the expended bullet recovered from the apartment where Norrid had been shot, and the bullet recovered from McCrimmon. After examining the bullets and test firing the gun, Ward concluded that both expended bullets had been fired from the gun.

After the prosecution rested, appellant did not introduce any evidence in his defense.

discussion

I. Section 654

A. Mayhem

Appellant contends on appeal that the four-year sentence imposed as to the mayhem count must be stayed pursuant to section 654 because the mayhem conviction involved the same course of conduct, constituting one indivisible transaction with a single objective, as the attempted murder conviction involving McCrimmon (count 4), for which appellant was sentenced to life with the possibility of parole. Although defense counsel did not object to the trial courts failure to stay imposition of sentence on the mayhem count, the issue may nonetheless be raised on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295.) A court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654. (Ibid. See also People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)

We agree with appellants contention that the sentence on the mayhem count must be stayed pursuant to section 654. The attempted murder count and the mayhem count are based on the same facts, the shooting of McCrimmon. There was no evidence that appellant entertained multiple, independent objectives that would justify imposition of punishment for both crimes.[2] Thus, imposition of a consecutive sentence for mayhem violated section 654. (See Neal v. State of California (1960) 55 Cal.2d 11, 19.) Where section 654 precludes multiple punishment and the trial court erroneously fails to stay the terms subject to section 654, the appellate court must stay the sentence on the lesser offenses while permitting execution of the greater offense consistent with the intent of the sentencing court. (People v. Thompson (1989) 209 Cal.App.3d 1075, 1080.) (People v. Pitts (1990) 223 Cal.App.3d 1547, 1560.) Accordingly, we will stay the four-year sentence imposed on the mayhem count, the stay to become permanent upon completion of the remainder of the sentence.

B. Section 12022.53, Subdivision (d) Enhancement

Appellant contends that because the sentence on the mayhem count must be stayed pursuant to section 654, the 25 years to life enhancement under section 12202.53, subdivision (d) must be stayed as well. We agree. [A]n enhancement must necessarily be stayed where the sentence on the count to which it is added is required to be stayed [under section 654]. (People v. Guilford [(1984)] 151 Cal.App.3d 406, 411.) [F]ailure to stay an enhancement, where the base term to which it is added is stayed, and requiring that time be served only for the enhancement[,] has the [improper] effect of elevating the enhancement to the status of an offense. Enhancements are not offenses, they are punishments . . . . (Id. at p. 412, citations omitted.) (People v. Bracamonte (2003) 106 Cal.App.4th 704, 711.) We shall therefore order stayed the 25-years-to-life sentence for the firearm enhancement on the mayhem count, the stay to become permanent upon completion of the remainder of the sentence.

C. Negligent Discharge of a Firearm in Public

Appellant contends that the sentence for his conviction of negligent discharge of a firearm in public ( 246.3) should be stayed pursuant to section 654 because it, too, was related to the McCrimmon shooting incident, and part of one indivisible course of conduct. Appellant disputes the prosecutors statement that the conviction was supported by the fact that there were some 30 other people in the courtyard. Instead, he asserts the record indicates that Ms. McCrimmon was sitting by herself on a chair when appellant fired, and that there were about eight or nine people in front when she ran away from the building.

In fact, the record indicates that McCrimmon was sitting alone in a chair when appellant came into the courtyard and began shooting at her; however, there were eight or nine people around her. After the first bullet hit McCrimmon in the right side of her torso, she got up from her chair to run out of the courtyard and appellant shot at her again, hitting her in the left cheek. As she ran away from him, he fired two more shots from behind her; she had to go around some people to exit through the courtyard gate.

Under these circumstances, we reject appellants contention that the sentence for discharging a firearm should be stayed. The section 654 proscription against multiple punishment does not apply to violations arising from an indivisible course of conduct if during the course of that conduct the defendant committed crimes of violence against different victims. (People v. Miller (1977) 18 Cal.3d 873, 885; People v. Milan (1973) 9 Cal.3d 185, 197; In re Ford (1967) 66 Cal.2d 183, 183-184; People v. Burney (1981) 115 Cal.App.3d 497, 506; People v. Prater (1977) 71 Cal.App.3d 695, 699; People v. Braun (1973) 29 Cal.App.3d 949, 975, cert. den. sub nom. Braun v. California (1973) 414 U.S. 974, and disapproved on other grounds in Peoplev. Green (1980) 27 Cal.3d 1, 25, fn. 10.) The purpose of the protection against multiple punishment is to insure that the defendants punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. (Neal v. State of California [supra] 55 Cal.2d [at p.] 20, cert. den. Neal v. California (1961) 365 U.S. 823.) (People v. Masters (1987) 195 Cal.App.3d 1124, 1127-1128 [punishment for conviction of assault with a deadly weapon ( 245, subd. (a)(2)) and separate punishment for conviction of discharging a firearm at an occupied motor vehicle ( 246) was allowable, where defendant fired multiple shots into car with three occupants, striking one of them], italics added. See also People v. Higareda (1994) 24 Cal.App.4th 1399, 1413.)

The preclusion of section 654s application does not depend upon a determination that the victims of one violent crime are entirely different from the victims of a second violent crime committed in the same course of conduct. As long as each violent crime involves at least one different victim, section 654s prohibition against multiple punishment is not applicable. (People v. Miller, supra, 18 Cal.3d at p. 886, fn. 11.) (People v. Masters, supra, 195 Cal.App.3d at p. 1128.) In the case before us, while McCrimmon was the sole victim of the attempted murder and mayhem counts, the bystanders in the courtyard were separate victims as to the discharge count. Clearly appellant acted in a manner that was likely to cause harm to several people, particularly when he continued to fire his gun as McCrimmon ran away from him but was forced to go around people in order to exit the courtyard gate. Accordingly, the trial court did not err when it imposed a two-year term for the discharge count.

II. Imposition of the Firearm Enhancement as to the Mayhem Count

Appellant contends section 12022.53, subdivision (d) incorporates both the definition of great bodily injury found in section 12022.7, and the limitations imposed by section 12022.7 on use of the section 12022.7 enhancement. Because the section 12022.7 enhancement does not apply where great bodily injury is an element of the underlying offense, including mayhem, appellant contends that the trial court erred in imposing the enhancement of section 12022.53, subdivision (d), on the mayhem count. We disagree.

Section 12022.53, subdivision (d), provides in relevant part: Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) . . . , personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life. (Italics added.) Section 12022.7 establishes a sentence enhancement for persons inflicting great bodily injury on another person other than an accomplice while committing or attempting to commit a felony.[3] Section 12022.7, subdivision (f) provides: As used in this section, great bodily injury means a significant or substantial physical injury. There is no dispute that the definition of great bodily injury set forth in subdivision (f) applies to section 12022.53, subdivision (d).

Appellant contends, however, that in addition to the definition found in section 12022.7, subdivision (f), the limitations on that definition contained in section 12022.7, subdivision (g) also apply to limit the application of section 12022.53, subdivision (d). To wit, section 12022.7, subdivision (g) provides: This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense. (Italics added.) Pursuant to this language, subdivisions (a) through (d) of section 12022.7 do not apply to mayhem, because great bodily injury is an element of that offense. (People v. Hill (1994) 23 Cal.App.4th 1566, 1575; People v. Pitts, supra, 223 Cal.App.3d at pp. 1559-1560: [from the early common law . . . , mayhem has been considered a cruel and savage crime. . . . Accordingly, we find great bodily injury as defined in Penal Code section 12022.7 is an element of mayhem and the enhancement for great bodily injury is inapplicable].)

Thus, appellant argues, section 12022.53, subdivision (d), applies in all cases in which section 12022.7 applies, and not in cases in which section 12022.7 does not apply, e.g., where the underlying felony is mayhem.

We conclude, however, that section 12022.53, subdivision (d) incorporates only the definition of great bodily injury contained in section 12022.7, subdivision (f). This interpretation is the most reasonable understanding of the language of section 12022.53, subdivision (d) -- great bodily injury, as defined in Section 12022.7. (Italics added.) Considering the language of section 12022.53 as a whole, and viewing subdivision (d) in the context of the rest of the statute, confirms this construction. Statutes must be construed as a whole, and effect given to every word or provision if possible. (See People v. Valencia (2000) 82 Cal.App.4th 139, 145, 148, citing California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1143, and In re Clifford C. (1997) 15 Cal.4th 1085, 1092.) Here, section 12022.53, subdivision (a)(2), explicitly states that the section applies to the crime of mayhem. (See People v. Valencia, supra, 82 Cal.App.4th at p. 146.) Appellants construction, however, would eliminate mayhem from the scope of the 25-year-to-life enhancement provided by section 12022.53, subdivision (d).

Appellant counters that the enhancements in section 12022.53, subdivisions (b), (c), and (e) would apply even if great bodily injury was an element of the underlying felony, as with mayhem, and therefore subdivision (a)(2) would not be rendered meaningless by adopting his construction. However, it is more likely that if the Legislature had intended to preclude the application of section 12022.53, subdivision (d), in cases in which great bodily injury is an element of the underlying felony, it would have so stated in that subdivision, rather than by means of oblique reliance on subdivision (g) of section 12022.7.

We will not construe the language of section 12022.53, subdivision (d), as expressing the intention to incorporate what is, in substance, the contradictory provisions of section 12022.7, subdivision (g).[4] Thus, the trial court did not err in imposing the enhancement of section 12022.53, subdivision (d), with regard to the mayhem count. The 25-year-to-life enhancement was properly imposed, but as discussed above, must be stayed pursuant to section 654, the stay to become permanent upon appellants completion of the remainder of the sentence.

III. Application of Section 1170.1

Appellant contends, and respondent concedes, that the trial court erred in imposing consecutive sentences for both of the determinate sentencing counts: the middle term of 7 years as to the Norrid attempted murder count (count 8), and also the middle term of 2 years as to the negligent discharge of a firearm count (count 7).[5]

Section 1170.1, subdivision (a), provides that where a defendant is sentenced to consecutive terms, [t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed.

Accordingly, we shall order that the abstract of judgment be amended to impose a consecutive subordinate term of one-third the middle term, or 8 months, on the negligent discharge of a firearm count (count 7).

IV. Prosecutorial Misconduct

Appellant contends that there were three separate instances of prosecutorial misconduct during closing argument that require reversal of the judgment. We disagree.

During closing argument, the prosecutor stated: Unfortunately some of the counts have been taken away from your consideration since you heard no evidence to those counts. Those counts relate to, remember my opening statement, I mentioned to you to consider crimes that happened on Third Street so thats been taken away from you and Mr. Murillo was the victim, thats been taken away from you. We are left with the Wilton Street crime and the Pacific and PCH crime.

Second, the prosecutor said: This event that occurred at Wilton Street is circumstantial evidence. Norrid was not here to tell you exactly what happened. And if you recall, I made you promise that you are not going to hold the fact that Norrid here [sic] against the evidence. In other words, if you have enough evidence without Norrid to conclude that the defendant is guilty as charged because Norrid is not here. So, circumstantially, the defendant with the gun, going in, Norrid falling, Norrid saying, this dude shot me. The defendant walking out with the gun, this is all circumstantial evidence to conclude that the defendant is the one that shot Norrid. So the charges that were proven in this factual scenario was the attempted murder, deliberate, premeditated, and intentional.

Third, the prosecutor stated: So moving on to Pine and PCH, we had direct evidence and circumstantial evidence. Im going to leave it in your hands. Please dont consider sentencing. Do not consider what happens to the defendant if you find him guilty. Is he going to go away? Is he going to be on probation? Please, just consider the facts[,] apply them to the law and reach your conclusion.

The court then excused the jury for a brief recess. Defense counsel moved for a mistrial based on the three statements set forth above. The trial court denied the motion, finding that the comments did not rise to the level of prosecutorial misconduct. The court noted that it had pre-instructed the jury not to consider certain counts that were dismissed; counsel said, basically, she didnt prove it. Regarding the purported promise, the court construed that statement as mere argument, noting that it had instructed the jury that the arguments of the attorneys carry no weight and they are the judges of the facts. As to the reference to sentencing, the court said: I think the way she said it is merely to reaffirm this courts instructions and expand on it.

Appellant contends the trial court erred in failing to grant the motion for mistrial, or admonish the jury that these comments were inappropriate and were not to be considered.

Defense counsel admittedly did not object at the time the statements were made. Defense counsel later brought a motion for mistrial based on the remarks, but did not explain why he failed to object at the time the statements were made. The belated motion for mistrial was ineffectual to preserve the issue for appeal, as a timely objection is required. (See People v. Samayoa (1997) 15 Cal.4th 795, 841.) Appellant acknowledges that generally where no objection is made or where the court sustains an objection and properly admonishes the jury, misconduct will not furnish grounds sufficient to justify granting a new trial or reversing the judgment. Appellant suggests, however, that a request for admonition would have been futile, and that an admonition would not have cured the harm caused by the misconduct. Nothing in the record indicates that a timely objection would have been futile, or that an admonition would have been ineffectual. Indeed, we find there was no misconduct.

Prosecutorial misconduct will result in a reversal under the federal Constitution when the misconduct infects the trial with fundamental unfairness which results in a denial of due process. (Darden v. Wainwright (1986) 477 U.S. 168, 181.) Under state law, reversal is required when the prosecutor uses deceptive or reprehensible methods to gain a conviction. (People v. Cook (2006) 39 Cal.4th 566, 606.) There was no fundamental unfairness here, nor did the prosecutor use devious or dishonorable methods.

A. Reference to Dismissed Counts

Regarding the first statement appellant assigns as misconduct, that Unfortunately some of the counts have been taken away from your consideration since you heard no evidence to those counts, the record bears out the trial courts evaluation that the prosecutor was merely acknowledging that she did not prove those counts. Appellants attempt to construe the statement as an effort to rely on other crimes outside of the evidence in order to establish criminal propensity is inapt. During her opening statement, the prosecutor had discussed in some detail the facts underlying the counts that were later dismissed. Her statement during closing was made in the context of enumerating the charges, and merely reminded the jury that she had discussed those counts during opening, in order to point out those counts had been removed from the jurys consideration. She gave no factual details that would inflame the jury, identifying them only by saying the crimes that happened on Third Street and the one in which Mr. Murillo was the victim were taken away from you. The prosecutors choice of words that [u]nfortunately some of the counts have been taken away from your consideration was not ideal, but it did not rise to the level of misconduct. In addition, the trial court had already instructed the jury that certain counts no longer needed to be decided, and that the jury was not to speculate or consider in any way why they no longer needed to decide those counts.

B. Failure of Victim Norrid to Testify

Appellant contends that it was misconduct for the prosecutor to acknowledge that Norrid did not testify, and to say, And if you recall, I made you promise that you are not going to hold the fact that Norrid here [sic] against the evidence. He argues that the prosecutor was requesting that the jury not rely on its assessment of the record or lack of evidence, and instead rely on an imposed promise not to hold Norrids absence against her. He asserts that by her statement the prosecutor was improperly vouching for her own assessment of the case that the victim need not testify in order to establish an attempted murder. We disagree with appellants assessment of the comment as misconduct.

The prosecutors reference to an earlier promise having been obtained from the jury is somewhat puzzling, as the parties have pointed to none in the record and we have found none in our own review of it. In any event, we conclude that the prosecutor was not requesting that the jury ignore the record or any purported lack of evidence. Instead, she correctly pointed out to the jury that it could convict appellant of the attempted murder of Norrid if you have enough evidence without Norrid to conclude that the defendant is guilty as charged. She then referred to the circumstantial evidence presented by other witnesses, that appellant walked into the apartment holding a gun, and thereafter Norrid fell to the floor saying, this dude shot me, as defendant walked away with the gun. These comments did not constitute improper vouching for the prosecutors view of the case that the victim need not testify in order to convict a defendant of attempted murder.

C. Reference to Penalty

Finally, appellant contends that the prosecutors purported exhortation to the jury not to consider punishment was in fact a suggestion that the jury should consider what punishment he would receive if convicted only of minor crimes. We find no such duplicity in the prosecutors brief comments. She merely said, Please dont consider sentencing. Do not consider what happens to the defendant if you find him guilty. Is he going to go away? Is he going to be on probation? Please, just consider the facts[,] apply them to the law and reach your conclusion. Suffice it to say that we agree with the trial courts assessment that the prosecutors statement was made merely to reaffirm this courts instructions and expand on it.

In any event, assuming that it was misconduct for the prosecutor to make any or all of the statements of which appellant complains, it is not reasonably probable that a verdict more favorable to appellant would have resulted had the prosecutor refrained from doing so. (People v. Bolton (1979) 23 Cal.3d 208, 213-214; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Bryden (1998) 63 Cal.App.4th 159, 182.) The evidence against appellant was overwhelming. Reversal of the judgment is unwarranted.

disposition

The judgment is modified (1) to provide as to the mayhem count (count 5) that execution of the 4-year sentence and the 25-year-to-life sentence for the section 12022.53, subdivision (d), enhancement are stayed pursuant to section 654, the stay to become permanent upon service of the remainder of the sentence; and (2) to provide that appellant is sentenced to 8 months (one-third of the middle term of 2 years) for the negligent discharge of a firearm count (count 7), to run consecutively, resulting in a total state prison term of 57 years and 8 months to life. The trial court is ordered to prepare an amended abstract of judgment reflecting these modifications. The trial court shall send a corrected abstract of judgment to the Department of Corrections. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J. MANELLA, J.

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[1] All undesignated section references are to the Penal Code.

[2] Respondent does not discuss this issue, instead addressing only the imposition of the firearm enhancement.

[3] Subdivisions (a)-(e) provide for enhancements of varying lengths for inflicting great bodily injury, other than to an accomplice, while committing or attempting to commit a felony under specified circumstances. Subdivision (a) provides for a basic three-year enhancement for inflicting great bodily injury; subdivision (b) provides for an enhancement of five years for inflicting great bodily injury and causing brain injury or permanent paralysis; subdivision (c) provides for an enhancement of five years for inflicting great bodily injury on a person 70 years of age or older; subdivision (d) provides for an enhancement of four, five, or six years for inflicting great bodily injury on a child under five years of age; and subdivision (e) provides for an enhancement of three, four, or five years for inflicting great bodily injury under circumstances involving domestic violence.

[4] The two statutes are contradictory, for example, because section 12022.53, subdivision (d), explicitly applies to murder, while section 12022.7, subdivision (g), explicitly states that it does not apply to murder.

[5] Appellant includes in his contention in this regard the 4-year sentence imposed on the mayhem count. However, given our conclusion that we must stay execution of sentence on the mayhem count pursuant to section 654, the present contention does not apply to that count.