CERTIFIED FOR PARTIAL PUBLICATION1
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
Plaintiff and Respondent,
(Super. Ct. No. SCS183269)
JORGE DIEGO OROPEZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Raymond
Edwards, Jr., Judge. Affirmed in part; reversed in part; remanded with instructions.
Charles M. Sevilla for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil
Gonzalez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of DISCUSSION parts B, C, D, E, F, G, H and I.
Jorge Diego Oropeza was convicted of first degree murder, attempted murder first
degree murder, shooting at an inhabited vehicle and discharging a firearm from a vehicle.
It was found true as to the convictions for murder and the shooting at and from a vehicle
Oropeza discharged a firearm within the meaning of Penal Code2 section 12022.53,
subdivision (d). With regard to the attempted murder conviction, it was found true
Oropeza discharged a firearm within the meaning of section 12022.53, subdivision (c). It
was also found true as to the convictions for attempted murder and shooting at an
inhabited vehicle he used a firearm within the meaning of section 12022.5, subdivision
(a), and it was found true he used a firearm within the meaning of section 12022.5,
subdivision (a)(1), as to the conviction for murder.
Oropeza was sentenced to a prison term of 80 years to life. He appeals, arguing
the trial court erred in refusing to give various requested instructions, erred with regard to
various evidentiary rulings and erred in imposing some of the firearm discharge
enhancements. He also contends the prosecutor engaged in misconduct during argument
to the jury.
A. Prosecution Case
In the early morning of March 6, 2004, Eglen Coss, his cousin Moraima Coss
(Moraima) and her boyfriend Noah Johnson were driving home on Interstate 805 after an
All further statutory references are to the Penal Code unless otherwise specified.
evening in Tijuana. Coss was driving, Johnson was in the passenger seat and Moraima
was sitting between them. As they drove north, a confrontation occurred between Coss
and the occupants of a silver Ford F150 pickup truck who apparently believed Coss had
"cut them off." At first there was yelling and an exchange of offensive hand gestures.
Then as the vehicles drove side by side, with a lane between the two vehicles, a person
wearing a red shirt and sitting in the front passenger seat of the Ford stuck his arm out the
window and fired a handgun. The bullet passed through Coss's arm, striking Moraima in
the head and killing her. Coss stopped to summon help. The Ford pickup truck drove
At about 11:00 p.m. on March 7, 2004, Coss was shown a photographic lineup
containing a photograph of appellant. Coss identified a person other than appellant as the
shooter. Two days later, Coss was shown a second lineup again containing a photograph
of appellant. Coss picked out appellant's picture, stating: "Looks mostly like number
three." Coss was at appellant's arraignment and told a detective appellant was the man
who fired the shot.
On the evening of March 7, 2004, Johnson was shown a photographic lineup
containing appellant's picture. He identified someone other than appellant as the shooter.
Two days later he was shown a second photographic lineup again containing appellant's
photograph. He stated two of the persons looked like the shooter. Asked to pick one, he
picked the photograph of appellant.
Jose Lopez, who as part of a plea bargain pled guilty to voluntary manslaughter
regarding the death of Moraima, testified that in the early morning of March 7, 2004, he
and appellant were returning from Tijuana in a silver Ford F150 pickup truck. Because
appellant was drunk, Lopez drove. Lopez stated that after entering the United States they
were "cut off" by another vehicle. The cars continued up the freeway with the occupants
exchanging abusive words and gestures. Eventually, appellant drew a gun and fired a
shot. Lopez drove away.
At trial, Lopez, for the first time, stated a third man, Andrew Anguiano, was in the
truck with him and appellant at the time of the shooting. The prosecution was unaware
until trial of this third man. Anguiano testified at trial that the night of the shooting he
was returning from Tijuana with Lopez and appellant. The F150 truck has a back seat
and Anguiano was sitting in it. Anguiano testified concerning the confrontation that
morning and stated appellant fired the shot.
Both Coss and Johnson identified appellant at trial as the shooter.
B. Defense Case
The defense offered no witnesses. Appellant argued there was a reasonable doubt
concerning the identity of the shooter. Appellant further argued the persons in the truck
with him, Lopez and Anguiano, had obvious motives to claim appellant fired the fatal
shot. Appellant argued Coss and Johnson could reasonably, under the circumstances,
misperceive who fired the shot.
A. Instruction on Defenses and Lesser Included Offenses
Appellant argues the trial court erred when it denied his request to instruct on selfdefense and on the lesser included offense of voluntary manslaughter based both on heat
of passion and imperfect self-defense.
The trial court must instruct the jury on all general principles of law relevant to the
issues raised by the evidence, whether or not the defendant makes a formal request. This
obligation requires instructions on lesser included offenses if there is substantial evidence
that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater
offense but not of the lesser. (People v. Rogers (2006) 39 Cal.4th 826, 866-867.) The
obligation also applies, with reservations not applicable here, to instruction on defenses
when they are supported by substantial evidence. (People v. Barton (1995) 12 Cal.4th
In this context substantial evidence means evidence which is sufficient to deserve
consideration by the jury and from which a jury composed of reasonable persons could
conclude the particular facts underlying the instruction existed. The trial court is not
required to present theories the jury could not reasonably find to exist. (People v.
Wickersham (1982) 32 Cal.3d 307, 324; People v. Flannel (1979) 25 Cal.3d 668, 684685, fn. 12.)
On appeal, we review independently the question whether the trial court failed to
instruct on defenses and lesser included offenses. (See, e.g., People v. Waidla (2000) 22
Cal.4th 690, 739.)
While not using the term self-defense, it was appellant's position even before trial
Coss's aggressive and provocative driving played a significant part in the "road rage
incident" and the eventual shooting.
At trial several versions of the events immediately preceding the shooting were
given by witnesses. Coss stated he first saw the Lopez truck as they got on the freeway
near the border. It appeared Lopez wanted to race and Coss gestured to him that he was
not interested. Coss stated that after the initial encounter he was driving in the fast lane
of the 805 freeway when appellant's truck approached rapidly from behind in the same
lane. When Lopez began "tailgating" him, Coss moved over to get out of the way. As
appellant's truck came beside them, Coss moved over another lane. Appellant, in the
front passenger seat, leaned outside the truck and gestured at him. Coss replied with an
offensive gesture. This continued for a time and eventually appellant placed a gun out
the window and fired. Coss stated that as the gesturing was occurring, he was driving
normally in his lane.
Johnson stated that while they were in the fast lane on the 805 freeway, the Ford
truck approached rapidly from the rear. Coss moved over two lanes. As he did so, the
passenger and the driver in the Ford made obscene gestures. Coss and Noah made rude
gestures in response. The passenger of the car then fired at them. Noah stated that
neither truck "brake checked" the other. In brake checking, the driver of a car followed
by a second car taps the brakes, thus, requiring the following car to brake. Johnson also
stated that once the trucks were driving with a lane between them, they did not move out
of the lanes until after the shot was fired.
Anguiano, the second passenger in the truck with appellant, testified that on their
way home from Tijuana, the men got into a confrontation with the occupants of another
truck. Anguiano stated after entering the 805 freeway, the two trucks drove fast side by
side, "showing off" to each other. Anguiano testified it was the driver of the other truck
that started making rude hand gestures. Appellant then replied with rude hand gestures.
The confrontation ended when appellant fired a shot. Anguiano stated that when the shot
was fired there was a lane between the two vehicles. He stated that during the
confrontation the other truck did not swerve at them or "throw itself at them."
Lopez gave inconsistent accounts of the incident. On direct examination Lopez
testified that as they were entering the freeway near the border they were cut off by
Coss's truck. The driver of that truck said something to appellant and appellant replied.
At the merge of the 5 and 805 freeways, Lopez started to veer toward the 5 freeway to
avoid a confrontation with Coss's truck that appeared to be going to the 805 freeway.
Appellant asked Lopez why he was going to the 5 when they lived off the 805. Lopez
changed his mind and proceeded to the 805 freeway. Lopez stated the other truck pulled
away but he caught up to it. He testified both trucks were in the number two lane, i.e.,
the second lane from the far left or "fast lane." Lopez stated that when he approached
within less than a car length of the other truck, it "brake checked" him. Lopez said he
then moved into the "fast lane." Lopez stated the other truck sped up and the two raced
ahead. The other truck then moved into the number three lane and the two trucks went up
the freeway with appellant and the driver of the other truck exchanging words. Lopez
stated the trucks maneuvered, changing lanes and brake checking each other. Lopez
testified that when the shot was fired the trucks were "side by side." It is unclear from
Lopez's testimony in which lanes the trucks were traveling. Lopez testified that at the
moment the shot was fired the other truck was not swerving into or brake checking them.
Lopez did testify, however, that at times the other truck swerved at them.
During cross-examination the defense played the recording of a police interview
with Lopez two days after the shooting. Lopez told the officers that after they returned
from Tijuana another car tried to run them off the road. He thought the occupants of the
other truck were "talking shit" to appellant. Lopez told the officers the other truck
swerved at them. He stated he "guessed" the driver of the other truck got close, appellant
"snapped" and at about that time Lopez heard a bang. Lopez stated the trucks raced and
jockeyed positions. They maneuvered and brake checked each other. The trucks never
touched. The other truck did swerve at them.
The defense also played the recording of a police interview of Lopez about two
weeks after the shooting. Lopez again stated that on returning from Tijuana, Coss was
"showing off." Lopez paid no attention and eventually Coss cut him off. He again
related the vehicles raced, maneuvered around each other and brake checked each other.
He stated the other truck swerved at them. Lopez stated appellant and the driver of the
other truck began arguing and it was then that appellant fired.
Lopez stated that at the merge of the 5 and 805 freeways he first decided to go off
on the 5 to avoid any confrontation with the other truck. Appellant reminded him they
did not live in that direction. Lopez decided he did not have to back down and veered
back onto the 805. Lopez stated that as he and the other truck went up the freeway they
were cutting each other off. The two at times moved close to each other and brake
checked each other. At one point the other truck swerved into his truck and appellant and
the driver of the other truck began talking to each other. The cars began swerving at each
other and it was at that point appellant fired.
Lopez told the officers that during the racing appellant was encouraging Lopez to
go faster and was saying, "Fuck them." As the trucks were next to each other the other
truck moved over towards them and Lopez had to move out of the way. Appellant and
the driver of the truck were yelling at each other. The other truck swerved at them. As
Lopez pulled over slightly onto the shoulder, appellant took out the gun. Appellant fired
the gun and then said to Lopez, "Go home."
After the tapes were played, Lopez testified on cross-examination that after the
other truck cut him off he accelerated to catch up with it. After he was cut off, appellant
told him to go faster and catch up to the other car. Lopez came up to within a car's length
of the other truck. A series of brake checks then occurred with one driver getting in front
of the truck and then tapping his brakes. Lopez stated that on several occasions the other
truck swerved at his truck. As it did so, Lopez was afraid there might be a collision and
on several occasions he had to take evasive maneuvers. He stated the swerving was
"scary." Lopez stated that as the swerving and evasive maneuvers were occurring,
appellant was hanging out the window making rude gestures at the other truck and
exchanging words with the driver. Lopez stated that it was when the other truck swerved
at them that appellant fired a shot.
Lopez was charged with murder arising out of the shooting. He entered a plea to a
lesser charge. It was pointed out to Lopez he stated in his change of plea form that at the
time the shot was fired, the other truck was not being driven in a manner that threatened
Lopez or appellant.
Lopez then testified the shot was not fired during one of the times when the other
truck swerved at them. It was fired later while the two cars were next to each other and
appellant and the driver of the other truck were arguing.
Appellant did not testify.
Defense counsel requested instructions on self-defense and defense of others. He
noted Lopez testified the other truck swerved at them four times. Counsel noted if
Lopez's testimony were believed, it was possible the shooter fired in self-defense or at
least in imperfect self-defense. The trial court stated appellant's defense was that he did
not fire the shot. The court stated, therefore, there was no evidence appellant took any
action in response to the claimed swerving of the other truck or that either Lopez or
Anguiano testified it was necessary to shoot at the other truck. The trial court denied the
request to instruct on the defense of self-defense or voluntary manslaughter based on
Appellant also requested instructions on voluntary manslaughter based on sudden
quarrel or heat of passion. The trial court denied the request, stating there was no
substantial evidence that would support a finding of voluntary manslaughter on that
a. Self-defense and Imperfect Self-defense
Appellant argues the trial court erred in denying his request to instruction on selfdefense and on voluntary manslaughter based on a theory of imperfect self-defense. It
"The subjective elements of self-defense and imperfect self-defense are identical.
Under each theory, the appellant must actually believe in the need to defend himself
against imminent peril to life or great bodily injury. To require instruction on either
theory, there must be evidence from which the jury could find that appellant actually had
such a belief." (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.)
Appellant did not testify and made no out-of-court comments indicating that when
he fired, he believed it necessary to defend his life or to avoid great bodily injury. It is
the case that the "substantial evidence of a defendant's state of mind may be found in the
testimony of witnesses other than a defendant." (People v. Hill (2005) 131 Cal.App.4th
1089, 1102; People v. De Leon (1992) 10 Cal.App.4th 815, 824.) Here, however, no
witness testified appellant fired out of fear or testified appellant appeared fearful. No
witness to the incident, not even Lopez in any of his various versions of the incident,
stated they believed deadly force was necessary to protect them. Lopez went no farther
than to state that the mutual acts of "road rage" in which he was admittedly engaged were
"scary." The only substantial evidence of appellant's state of mind is found in testimony
concerning his aggressive and provocative behavior. It suggests only that he fired the
shot as an act of aggression. (See generally, People v. Hill, supra, 131 Cal.App.4th at p.
b. Voluntary Manslaughter
Appellant argues the trial court erred when it refused to instruct on voluntary
manslaughter based on sudden quarrel and heat of passion. Appellant notes there was
evidence the incident began when Coss's truck cut off the truck in which appellant was a
passenger, that Coss continued to provoke appellant with his aggressive driving, his
yelling and his obscene gestures. Appellant argues he clearly acted in the heat of passion;
and because there was adequate provocation by Coss and those in his truck, the trial court
was required to instruct concerning the lesser included offense of voluntary manslaughter
based on sudden quarrel or heat of passion.
A defendant commits voluntary manslaughter and not murder when he or she
intentionally and unlawfully kills "upon a sudden quarrel or heat of passion." (§ 192,
subd. (a).) Voluntary manslaughter has both a subjective and an objective requirement.
The defendant must kill while actually in the heat of passion. That heat of passion,
however, must be aroused by sufficient provocation judged objectively. "[T]his heat of
passion must be such a passion as would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances,' because 'no defendant may
set up his own standard of conduct and justify or excuse himself because in fact his
passions were aroused, unless further the jury believe that the facts and circumstances
were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]"
(People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.)
Because the test of sufficient provocation is an objective one based on a
reasonable person standard, the fact the defendant is intoxicated or suffers from a mental
abnormality or has particular susceptibilities to events is irrelevant in determining
whether the claimed provocation was sufficient. (People v. Steele (2002) 27 Cal.4th at p.
A defendant may not provoke a fight, become the aggressor, and, without first
seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to
manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in
the heat of passion. The claim of provocation cannot be based on events for which the
defendant is culpably responsible. (People v. Johnson (2003) 113 Cal.App.4th 1299,
1312-1313; People v. Hoover (1930) 107 Cal. App. 635.)
As was stated in People v. Hurtado (1883) 63 Cal. 288, 292: "In an abstract sense
anger is never reasonable, but the law, in consideration of human weakness, makes the
offense manslaughter when it is committed under the influence of passion caused by an
insult or provocation sufficient to excite an irresistible passion in a reasonable person;
one of ordinary self-control."
There is certainly evidence appellant acted in the heat of passion. The question is
whether the claimed provocation for his impassioned state of mind was sufficient, i.e., the
provocation was sufficient to arouse such passion in an ordinarily reasonable person and
the provocation was not based on events for which appellant was responsible. Viewed in
a manner most favorable to appellant, this incident began when Coss intentionally cut off
the truck in which appellant was riding. While an ordinarily reasonable person might be
angered by the act, such a person would not pursue or encourage the driver of a vehicle in
which he or she was a passenger to follow the offending vehicle at a high rate of speed
and engage in highly aggressive driving and abusive personal behavior. Coss departed
after cutting off Lopez. Had Lopez, with appellant's encouragement, not made
extraordinary efforts to catch up to him and then engage in an alcohol-infused, egoinspired act of mutual road rage, the shooting would never have occurred.
While appellant showed an abundance of human weakness, it was not of a type
such that the law is willing to declare his acts less culpable. The trial court acted properly
in not instructing the jury concerning voluntary manslaughter based on sudden quarrel or
heat of passion.
B. Playing of 911 Tape
Appellant argues the trial court erred when it allowed the prosecutor to play twice
to the jury a recording of the 911 call made by Johnson moments after the shooting.
Appellant contends the recording had little or no relevance and was highly prejudicial.
By in limine motion appellant noted that on the 911 recording Johnson is heard
screaming and often speaking in an anguished tone. Appellant argued much of the
recording was irrelevant and was highly prejudicial. He asked that if the recording was
admitted at all it be edited to eliminate the screams or that Johnson's statements during
the call be read to the jury.
The prosecutor argued she wished to admit the recording because it was "real life
that happened back then." The prosecutor stated if the defense wanted background noise
excised, then the defense could excise it. The prosecutor stated, however, she wanted the
recording of Johnson's words played for the jury.
After listening to the recording, the trial court noted in People v. Love (1960) 53
Cal.2d 843, 854-857, the court reversed based on the admission of the tape recording of
the failing voice and groans of a murder victim and a photograph of the victim's face in
death. The trial court distinguished Love, however, noting that here the voice on the
recording was not that of the victim. The court concluded hearing the tape would not
prejudice the jury. Defense counsel stated his opinion some of the background on the
recording was the groans and cries of the murder victim. The trial court replied that it
read the transcript of the recording as it listened, and nothing on the recording was
discernable as the voice of the victim. The trial court denied the motion to exclude the
During opening statement the prosecutor recounted the preliminary events leading
to the shooting. When she had brought the story to the moment before the shot was fired,
she stopped, passed out transcripts of the recording and stated: "And to best portray to
you what happened that next minute, I am going to play for you the 911 tape. And on
this tape, you're going to hear her boyfriend describe to you just within minutes of this
shooting occur what he perceived and was going on with him."
After the recording was played, during the prosecutor's opening statement, one of
the alternate jurors asked to be relieved from service. She stated she did not know the
case would be so "graphic." She stated the tape "threw [her] off." The juror explained
that two weeks ago she had a miscarriage and "little things kind of set [her] off." She
stated the crying on the tape was very hard to deal with and the photographs would be
difficult as well. She stated she had a "rough" weekend as she remembered the tape.
Both the prosecutor and defense counsel asked the alternate juror not be excused and the
trial court required she remain on the case.
The tape was again played and the jury was provided transcripts of it during
All relevant evidence is admissible. (See Evid. Code, § 351.) The definition of
relevant evidence is a broad one that includes evidence "having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the determination of the
action." (Evid. Code, § 210; see People v. Scheid (1997) 16 Cal.4th 1, 13-18.)
Here, the relevance of the recording of Johnson's 911 call is at most minimal.
While it bridges the narrative gap between the shooting and the death of the victim, it
does little to illuminate the crucial issues of identity and intent central to the case. Most
of the recording deals with Johnson's attempt to get help for the victim.
Relevant evidence should be excluded when it is more prejudicial than probative.
(Evid. Code, § 352.) The decision to exclude relevant evidence on that basis lies within
the broad discretion of the trial court. The trial court's exercise of that discretion will not
be disturbed on appeal unless the probative value of the evidence is clearly outweighed
by its prejudicial effect. (People v. Heard (2003) 31 Cal.4th 946, 975-976.)
We have listened to the recording and read the transcript of it. There is no doubt
that doing so is an unpleasant experience. Still, while the anguish in Johnson's voice is
clear, he is also remarkably composed given the events that had just occurred. There is
background noise on the recording but its source and content is unclear. It does seem that
another person is highly upset and may at times be screaming.
Given the minimal relevance of the recording, a strong case can be made that the
trial court abused its discretion in admitting it. We conclude, however, any such error
In People v. Love, supra, 53 Cal.2d at pages 854-857, a capital case, the trial court
admitted on the issue of penalty a photograph of the murder victim's face in death and a
recording of statements by her in extremis in which her voice was failing and she was
groaning in pain. The court noted the prosecutor argued for the death penalty, citing the
victim's suffering. At the time of the decision in Love, a jury had complete discretion in
choosing between death and other penalties. The court concluded a defendant had a right
to have the penalty decided rationally and dispassionately. It found admission of the
photograph and the recording and the argument of the prosecutor denied that right and
reversed the judgment of death.
In this case the issue was not penalty and the jury was constrained in its
consideration of the case by the need to find the particular elements of the charged
offenses supported by evidence. While the recording of Johnson's 911 call is emotional,
its emotional content would be expected. Murder cases most often have both strong
emotional components and highly unpleasant evidence. It is unfortunate an alternate
juror had an adverse reaction to the recording but that juror was admittedly particularly
sensitive and did not say that hearing the tape would make it impossible for her to render
a rational verdict. In our view, the recording, while of minimal relevance, is not unduly
inflammatory and it is not reasonably probable its exclusion would have resulted in a
more favorable result for appellant. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
C. Defense Questions Concerning Fault
Appellant argues the trial court erred when during the defense cross-examination
of Coss it sustained the prosecutor's objection to questions concerning whether Coss
believed the shooting was his fault.
During cross-examination, defense counsel asked Coss: "Do you think your
conduct in the way you drove and the way you acted with obscene gestures caused you -for it to be your fault that this incident occurred?" The prosecutor objected on the
grounds of relevance and a lack of foundation. The objection was sustained. Defense
counsel then asked Coss if he had stated to a police officer that "[he] felt bad and [he]
thought it was [his] fault?" The trial court reminded counsel an objection had already
been sustained to the question. The court then told the jury not everything said to a
police officer was admissible. Only relevant evidence was admissible and the court had
sustained an objection to the question because it sought irrelevant evidence.
Defense counsel's questions were poorly formed. We are not sure what the
questions meant. What did "fault" mean in this context? What does "feeling bad" mean
and what does it have do with the issues in the case? Was counsel asking for a legal
opinion? Was counsel asking Coss to attribute degrees of culpability? Counsel asked
extensive questions of Coss and other witnesses concerning Coss's driving and his
aggressive behavior. What was relevant in the case was what Coss did and not what he
thought about what he did. The trial court properly sustained the prosecutor's objection.
D. Statement by Anguiano
Appellant argues the trial court erred when it overruled his hearsay objection to
testimony from Anguiano concerning statements allegedly made to him by "Ray," that he
did not want Anguiano to say anything about the shooting and that appellant's father
wanted to talk to Anguiano. Appellant contends admission of the testimony was error
because it essentially and improperly attributed to appellant a consciousness of guilt.
During cross-examination, defense counsel questioned Anguiano concerning why
he did not come forward and explain what occurred the morning of the shooting.
Defense counsel suggested either Lopez or Anguiano was the shooter and they were
attempting to place the blame on appellant.
On re-direct examination, the prosecutor asked Anguiano if anyone other than law
enforcement officials tried to talk to him about the shooting. Anguiano, equivocally,
stated "no." When asked if he was sure about his answer, Anguiano stated "someone said
they brought it up." When asked who he meant by "they," Anguiano said someone
named "Ray." When asked how he knew Ray, Anguiano said through appellant.
When the prosecutor asked what Ray said, defense counsel interposed a hearsay
objection. The prosecutor stated Ray's statements to Anguiano were not offered for their
truth but for the effect of the statements on Anguiano's decision not to come forward.
The objection was overruled.
Anguiano testified that about a month after the shooting, he was contacted by
appellant's friend Ray. Ray told Anguiano not to say anything, that he wanted to talk to
Anguiano again and that appellant's father wanted to talk to Anguiano. Anguiano
testified he did not meet with the men. He stated he was not afraid to meet with them.
He stated his reason for not coming forward was not that he wished to protect Lopez or
appellant, but that he did not want to be labeled a "snitch" or a "rat."
Anguiano was an important, percipient witness to the shooting. Given that he did
not contact the police, questions existed concerning his credibility. It was appropriate
both parties explore why he had not come forward. While Anguiano denied Ray's
enjoiner not to talk had any affect on his decision, neither the prosecutor nor the jury was
required to accept that answer as the truth. The trial court properly denied appellant's
hearsay objection to the testimony. (See People v. Olguin (1994) 31 Cal.App.4th 1355,
In any event, the prosecutor's relatively short exploration of Anguiano's
conversation with Ray, while relevant, ultimately added little to the case and it was not
prejudicial. No one could reasonably attribute any consciousness of guilt to appellant
based on the uncertain meaning in Ray's suggestion Anguiano say nothing or appellant's
father wanted to talk to him.
E. Torres's Statement
Appellant argues the trial court erred when it admitted the following statement
made by his sister Judy Torres at the time of his arrest: "Remember, don't say anything."
Appellant contends the statement was both irrelevant and hearsay.
By in limine motion the prosecutor sought to admit, nominally for the purpose of
showing appellant's consciousness of guilt, Torres's statement to him at the time of his
arrest: "Remember, don't say anything"
Defense counsel objected, saying that at the time the statement was made he had
been retained and in his opinion the statement was nothing more than Torres's reminder
to appellant of counsel's advice not to talk unless he was present. The trial court noted
appellant had a right to remain silent and asked how being reminded of that showed a
consciousness of guilt. The prosecutor stated Torres's statement showed a bias towards
her brother. Apparently, admission of the statement was not offered to show a
consciousness of guilt, but rather to attack Torres's credibility.
The trial court stated Torres had a limited role in the case. She rented the truck
appellant took to Mexico the night of the shooting. The prosecutor agreed. She argued,
however, Torres first told the police she rented the truck for her brother and then later
stated she rented it so she and her husband could go to Mexico. The prosecutor stated it
would offer her statement to appellant reminding him not to talk as part of a number of
statements and actions by Torres showing her bias for appellant, her brother.
Defense counsel stated Torres had not changed her story to the police concerning
why she rented the truck, that she had on the later occasion simply given a more complete
answer. The trial court stated that was simply counsel's interpretation. The court stated
that Torres's statement reminding appellant not to say anything could be taken as showing
a bias in his favor and might suggest her later comments to the police concerning why she
rented the truck was a fabrication in an attempt to help him. The court stated Torres's
reminder to appellant not to say anything would be admitted.
During her testimony at trial, Torres denied reminding appellant not to say
anything. She testified she believed what she told appellant was: "Just wait until Tom
gets there." Apparently, Torres was referring to counsel.
Because trial lawyers have great responsibilities and a difficult task in which every
small advantage is sought, they may spend great energy on matters that in the cold light
of post-trial retrospection seem next to meaningless. This is one of those situations.
Torres's bias was obvious. She was appellant's sister. Her reminder to appellant to say
nothing was as easily explained as a reminder of counsel's sound advice as it was
mindless obstinacy. In any event, she had very little to add to the case for or against
appellant. Whether or not the trial court erred in admitting the subject statement, it was
F. Instruction on Nonprosecution of Other Persons
Appellant argues the trial court erred when it instructed the jury in the terms of
CALJIC No. 2.11.5. That instruction tells the jury evidence was offered indicating a
person other than the defendant may have been involved in the crime. The instruction
cautions there may be many reasons why that person is not on trial and the jurors are not
to discuss why the other person is not being prosecuted. Appellant notes the instruction
should not be given when the nonprosecuted participant testifies because the jury is
entitled to consider the lack of prosecution in assessing the witnesses' credibility.
(People v. Williams (1997) 16 Cal.4th 153, 226-227.)
Appellant notes in this case the jury was instructed Lopez was an accomplice as a
matter of law and was aware he pled guilty to manslaughter based the shooting.
Appellant argues, given those facts and instruction in the terms of CALJIC No. 2.11.5,
the jury would have believed it could not use the fact of appellant's plea bargain in
judging his credibility.
The trial court erred in instructing in the terms of CALJIC No. 2.11.5. That error
was harmless. The jury was told it could consider anything that in reason has a tendency
to prove or disprove the truthfulness of a witness's testimony, including the existence of
any bias or interest the witness might have. The jury was told it was to distrust the
testimony of an accomplice and Lopez was an accomplice as a matter of law. Lopez was
impeached in a number of ways, including with his plea bargain. The implications of that
plea bargain on Lopez's credibility were so patent and meaningful, no juror would have
believed CALJIC No. 2.11.5 meant they could not use it in assessing his credibility.
G. Prosecutorial Error
Appellant cites comments by the prosecutor during examination, argument and
rebuttal he argues were prosecutorial error.
Improper remarks by a prosecutor can so infect the trial they deny the defendant
due process. (Darden v. Wainwright (1986) 477 U.S. 168, 181.) A prosecutor, however,
is entitled to argue the case forcefully. (People v. Bandhauer (1967) 66 Cal.2d 524, 529.)
In order to preserve a claim of prosecutorial error in argument, there must be a
timely objection and request for a curative admonition. In the absence of such an
objection, the claim of error will only be considered if the admonition would not have
cured the harm. (People v. Earp (1999) 20 Cal.4th 826, 858.) It is true a failure to object
to improper argument may amount to the ineffective assistance of counsel. However, a
failure to objection during argument seldom establishes ineffectiveness. This is so
because the decision to object during argument is a tactical one that involves many
considerations and because such tactical decisions are accorded substantial deference. To
establish ineffective assistance, a defendant must show counsel's actions fell below an
objective standard of reasonableness under prevailing professional norms. (People v.
Rodriguez (1994) 8 Cal.4th 1060, 1121.)
1. Victim's Testimony
The prosecutor ended her argument by stating: "In murder trials, you never get to
hear from the most important witness." The prosecutor noted the jury had heard from
other witnesses but not from the murder victim. The prosecutor stated: "You didn't get
to hear from Moraima; how she felt the night the events were in Mexico. She did not get
to tell you what she was feeling and what she saw during that two and a half miles to her
murder, and she didn't get to tell you how she felt when she saw that firearm defendant
was holding and pointed at her cousin's head. Noah Johnson and Coss told you about
those events and how they felt. Moraima did not get that opportunity. Justice for
Moraima is in your hands."
Appellant argues this was an improper reference to matters not in evidence.
Appellant suggests the prosecutor was telling the jury Moraima would have testified she
saw appellant fire the shot. Additionally, appellant contends the prosecutor's argument
improperly asked the jury to view the crime through the eyes of the victim. (See People
v. Stansbury (1993) 4 Cal.4th 1017, 1057.)
There was no objection to the argument.
The argument was innocuous. The prosecutor was not reminding the jury of the
victim's suffering. The prosecutor was not suggesting Moraima would have testified
appellant fired the shot that killed her. While there was some emotional content to the
prosecutor's closing words, defense counsel could reasonably conclude it better not to
object but rather simply move on.
2. Most Culpable Person
During argument, the prosecutor discussed the testimony of Lopez. She told the
jury Lopez had lied repeatedly to the police and even lied during his trial testimony. The
prosecutor reminded the jury of Lopez's plea bargain and his responsibility for the
crimes. The prosecutor then made this statement which appellant argues was improper:
"You may not like Jose Lopez, you may not like the deal that the district attorney's office
gave him when he made that change of plea form, but the district attorney's office wants
to present to the members of this jury with every piece of evidence we had when we
started our jury trial to hold the person most accountable for Moraima' death, and that
person is the defendant."
Appellant argues the prosecutor's comments suggest the jury should consider as
relevant the prosecutor's office predetermination of the true guilty party.
There was no objection.
The prosecutor was not suggesting to the jurors they should convict appellant
because the district attorney's office had decided he was the shooter. The prosecutor's
institutional position appellant was the shooter and the most culpable participant in the
crime was hardly a secret. The prosecutor was simply explaining why a deal was made
with Lopez. In any event, whatever the ultimate propriety of the remarks, they were not
highly offensive and defense counsel could reasonably decide not to object to them.
3. "We Know" Comments
Near the beginning of her argument, the prosecutor discussed the element of intent
to kill. She stated: "How do we know he intended to kill?" She then discussed the
factors she believed showed that intent. When the prosecutor again stated: "How we
know he had the intent to kill," the trial court asked counsel to approach the bench. The
trial court told the prosecutor that saying "How we know" was equivalent to stating "I
believe." The court stated this in turn implied the prosecutor's belief was based on
information she had that was not before the jury. The prosecutor stated she understood.
At first the prosecutor corrected the form of her comments. However, she later
lapsed into the same manner of address and stated: "How do we know the defendant is
the shooter based on the evidence?" She then added "based on the evidence that you
The trial court then stated to the jury that when the prosecutor used the phrase
"How do we know," she was not suggesting the prosecutor or the police had information
the jury did not have. The court explained the prosecutor was using the collective "we"
to refer to those people who heard the evidence presented at trial.
Soon after, however, the prosecutor again prefaced a statement with the same
collective "How do we know." Defense counsel objected, the prosecutor apologized and
the court reminded the jury of its admonition concerning the phrase. The prosecutor on
several more occasions used the same "How do we know" as a preface to a comment.
There is no doubt that strictly speaking the "we" in the phrase "how do we know"
is ambiguous and could be taken not to mean those who heard the evidence presented at
trial but those who had special knowledge about the case like the prosecutor or the police.
It would have been better had the prosecutor not used the phrase and the trial court acted
properly in attempting to end the practice. Still, there was no direct suggestion the
prosecutor knew something the jury did not, or that the word "we" referred to persons
other than those who heard the evidence. If there was any question in that regard, the
trial court's admonition ended the ambiguity and made clear the prosecutor's use of the
word "we" referred only to those people who heard the evidence presented at trial.
4. Belief in Appellant's Guilt
During argument, the prosecutor discussed the testimony of Andrew Anguiano.
She commented on the various reasons he had not come forward before trial. She noted
Anguiano's testimony that he had been contacted by Ray who told Anguiano that he and
appellant's father wanted to meet with him. The prosecutor noted his testimony that he
would have met with them but they stopped calling. She then stated: "The inference that
can be made there is that they stopped calling because they knew the truth, the defendant
was the shooter."
There was no objection.
Appellant argues the prosecutor's comment suggested with no evidentiary support
his own father believed he was guilty. We agree. There was no evidence from which an
inference could reasonably be drawn concerning appellant's father's opinion about his
guilt. The comment by the prosecutor was improper. However, no objection was made.
Counsel could reasonably conclude ultimately any prejudice arising from the statement
was minimal and objecting to it would simply highlight the comment for the jury. In any
event, the comment was only the smallest part of a lengthy trial with many factual issues
and could not have affected the outcome.
5. Misstatement of Evidence
Appellant argues the prosecutor during her examination of Anguiano repeatedly
misstated his testimony concerning his observations of a gun the night of the shooting.
During direct examination, Anguiano testified he heard the gunshot, then for a
second he saw the gun appellant was holding in his hand. Later, during that examination,
the prosecutor asked Anguiano: "Do you remember where the other truck was when the
defendant pointed and fired that gun at the other truck?" When the prosecutor prefaced
another question with the words "When the defendant pointed the gun and fired it,"
defense counsel objected the question assumed facts not in evidence, i.e., that Anguiano
pointed the gun. The trial court overruled the objection.
Appellant argues the prosecutor consistently misstated Anguiano's testimony by
stating he saw the gun before it was fired, not after. He contends the prosecutor was
essentially testifying. He states the "rapidity of the shot was important to show
appellant's lack of premeditation and deliberation" and the prosecutor's misstatements of
Anguiano's testimony undermined any defense in that regard.
The prosecutor technically misstated Anguiano's testimony. Anguiano did not
testify he saw appellant point the gun and then fire. He stated he heard a shot and then
saw the gun in appellant's hand. What the prosecutor was stating was a reasonable
inference from Anguiano's testimony, i.e., he pointed the gun and then fired. He,
however, did not testify he saw the gun pointed.
At the time the prosecutor was asking the subject questions, she was not probing
the issues of intent or state of mind. She was dealing with the position of the trucks when
the shot was fired and merely repeated, if imperfectly, Anguiano's testimony to orient
him to the moment about which she was asking. The jury was instructed the comments
of counsel were not evidence and it was not to assume true any insinuation suggested by
a question. The prosecutor's error was a minor one and did appellant no harm.
6. Firearm Evidence
Appellant notes the murder weapon was never found. He argues the prosecutor
committed error when at trial she demonstrated with a similar handgun and then as part
of her argument that the murder was premeditated attributed that firearm's characteristic
to the gun used in the shooting.
During trial, defense counsel objected to the prosecutor showing the jury a
photograph of a gun that was not the murder weapon. The prosecutor stated the
photograph would merely be "demonstrative." The trial court overruled the objection.
Both Lopez and Anguiano were shown the photograph and testified the gun depicted,
while not the gun used, was similar to the one appellant used in the shooting. Lopez
described the gun as a semi-automatic.
Later, the prosecutor asked the trial court's permission for a firearms expert to
bring a 9mm, semi-automatic Baretta handgun into the courtroom to help explain how
such a weapon is fired. Defense counsel objected, noting the murder weapon was never
found and there was no identification of the exact gun used. Counsel argued showing the
gun to the jury would imply it was a duplicate of the murder weapon. The trial court
overruled the objection, saying there was testimony the murder weapon was a semiautomatic handgun and it was clear the weapon to be shown was not the actual firearm.
The court required a gunlock be kept on the firearm at all times it was in the courtroom.
The prosecutor called a firearms expert to testify concerning the characteristics of
various guns. The expert explained the operation of both revolvers and semi-automatic
handguns. After doing so the expert displayed a semi-automatic Baretta firearm he stated
he brought to court. The expert used the weapon to demonstrate his explanation of the
operation of a semiautomatic firearm. In questioning the expert, the prosecutor referred
to the demonstration weapon as a "replica."
The expert told the jury the weapon could be fired either in single or double
action, i.e., the hammer could be cocked and the gun fired with a pull of the trigger or the
trigger could be pulled to both cock and fire the gun in one sequence. The expert stated
that once fired, the gun would set itself in the single action mode. He stated the gun
weighed approximately two pounds. The prosecutor asked how much force was required
to pull the trigger. The expert stated that on "that particular gun" a pull of 10 pounds was
required to fire it double action and approximately five pounds of pull to fire it in single
Noting he was talking about the Baretta handgun he was holding, the expert
explained the safety mechanism built into the gun. The expert noted for example an
external safety on the gun that had to be manually moved before the gun could be fired.
The prosecutor asked and the expert went through the various steps required before the
gun could be fired, i.e., loading with a magazine, pulling the slide to the rear to place a
cartridge in the chamber and the external safety has to be placed in the firing position.
During argument, the prosecutor explained the concept of implied malice. She
noted the firearms expert testimony concerning how guns work. She argued that holding
and pointing a loaded gun at a person is an act dangerous to human life and doing so is an
act of implied malice.
Later, the prosecutor explained the concept of express malice, i.e., the intent to
kill. She noted intent is shown by the circumstances surrounding the act. In arguing
appellant intended to kill, she noted he used a highly deadly weapon. The prosecutor
stated: "[The firearms] expert told you there's four safety mechanisms that have to be
triggered to go through to even get this deadly weapon to fire. The means used tells us
this is a deadly weapon; this is used to kill."
The prosecutor also explained the concepts of premeditation and deliberation as a
means of finding appellant guilty of first degree murder. Again, the prosecutor noted
those states of mind by the circumstances surrounding the shooting. She argued
premeditation and deliberation were shown when appellant retrieved the loaded gun,
aimed it at Coss's truck and pulled the trigger. The prosecutor stated: "You heard [the
firearms expert] talk about the trigger pull, how it's not just a one little snap or a one little
motion. He talked about the pounds it takes in a trigger pull."
There was no objection to any of the prosecutor's comments concerning the gun.
There was evidence from percipient witnesses the murder weapon was a semiautomatic firearm. There was no error by the trial court in admitting expert testimony
concerning the general nature and generic operating features of such a class of weapons.
It was improper, however, for the prosecutor to use the features and attributes of a
particular demonstration weapon in support of an argument appellant acted with express
malice or he premeditated and deliberated the shooting. There was no reason to believe
the actual murder weapon had the same safety devices or that it required a trigger pull
like that of the demonstration weapon.
There was no objection, however, to the improper arguments and the issue is
waived. Defense counsel was not ineffective in choosing not to object. Intent and state
of mind, while elements of some of the charged offenses, were not central to appellant's
defense. The defense was there was reasonable doubt concerning who fired the shot.
There was certainly much stronger evidence than the safety features or trigger pull of the
murder weapon suggesting that whoever fired the shot did so with the intent to kill and
premeditated and deliberated the act. Defense counsel could reasonably conclude the
prosecutor's brief and not particularly damaging references to the attributes of the
demonstration firearm did not warrant an objection.
H. Firearm Enhancements
Appellant argues the section 12022.53, subdivision (d), discharge of a firearm
causing great bodily injury or death enhancements imposed as to counts 3, shooting at an
occupied vehicle, and count 5, discharge of a firearm from a motor vehicle, must be
stricken for two reasons. First, because the evidence was insufficient to support them.
Appellant specifically argues the victim to which the section 12022.53, subdivision (d),
allegations referred in counts 3 and 5 was Coss. Appellant contends Coss's shoulder
wound was, as a matter of law, insufficient to support a finding of great bodily injury
finding. Second, appellant argues the jury's finding as to those enhancements was
Section 12022.53, subdivision (c), provides an enhancement when in the
commission of certain specified felonies the defendant discharges a firearm. Section
12022.53, subdivision (d), provides a more serious enhancement when the defendant in
the commission of certain specified felonies discharges a firearm and proximately causes
great bodily injury or death.
In count 1 appellant was charged with the murder of Moraima. It was alleged that
in the commission of the offense appellant discharged a firearm that proximately "caused
great bodily injury and death to a person" within the meaning of section 12022.53,
subdivision (d). (Italics added.)3
In count 2 appellant was charged with the attempted murder of Coss. It was
alleged that during the commission of the offense appellant discharged a firearm within
the meaning of section 12022.53, subdivision (c). The information did not allege a
firearm discharge causing great bodily injury or death within the meaning of section
12022.53, subdivision (d).
In count 3 appellant was charged with discharging a firearm at an occupied
vehicle. As to that count it was alleged that in the commission of the offense appellant
discharged a firearm that proximately "caused great bodily injury and death to a person"
within the meaning of section 12022.53, subdivision (d).
In count 5 appellant was charged with discharging a firearm from a vehicle. It was
alleged that in the commission of the offense appellant discharged a firearm that
proximately "caused great bodily injury and death to a person" within the meaning of
section 12022.53, subdivision (d).
The evidence concerning the gunshot wound to Coss's left shoulder was not
extensive. He testified that after the shot was fired he "felt [his] arm burning real bad."
While it is of no consequence here, we note that section 12022.53, subdivision (d),
uses the disjunctive "or" between the words injury and death.
Coss stated he was taken to a hospital and after about three hours he was released. He
testified that the day after the shooting the pain in his shoulder kept him from sleeping.
Coss testified that in the days after the shooting he returned to the hospital on several
occasions for "checkups" for his wound.
Three photographs of Coss's wound were admitted into evidence. After her
testimony concerning the death of Moraima, the forensic pathologist was shown the
photographs of Coss's wound and stated: "It looks to me like a grazed gunshot wound,
specifically a tangential type of grazed gunshot wound. That means the bullet has
literally just grazed the surface of the skin. It's done more than just sort of abraded, as it's
more than just an abrasion. It has -- it looks to me from the photographs it's gone a little
bit into the tissue just beneath the skin, but it is sill a very superficial wound and the
bullet essentially just skirted across the top of that gentleman's shoulder."
The trial court instructed the jury as to the section 12022.53 allegations in the
terms of CALJIC No. 17.19.5.
In argument the prosecutor said little about the firearm discharge enhancements.
At the end of her argument concerning the murder charge in count 1, she told the jury the
allegation involved appellant discharging a gun and proximately causing great bodily
injury or death to another person. The prosecutor argued: "The evidence shows us by the
intent to kill and by the physical evidence of Moraima no longer being with us and Coss'
injury on the [shoulder], the defendant is guilty of this allegation."
The prosecutor's argument concerning the attempted murder charge in count 2 was
very brief. As to the firearm discharge allegation, she simply stated it was the same
allegation as made in the murder count. This statement was incorrect because the section
12022.53 allegation in count 1 referred to subdivision (d) while the allegation in count 2
referred to subdivision (c). The prosecutor's error was meaningless, however, because if
the jury found the subdivision (d) allegation true as to count 1, it necessarily would find
true the subdivision (c) allegation true as to count 2.
As to shooting at an occupied vehicle charge in count 3, the prosecutor simply
stated the firearm discharge allegation was the same as in counts 1 and 2. She made no
mention of the firearm discharge allegation attached to count 5.
Defense counsel argued there was reasonable doubt concerning the identity of the
shooter and did not mention the firearm discharge allegations.
The jury found true the firearm discharge allegations pursuant to section 12022.53,
subdivision (d), attached to counts 1, 3 and 5 and found true the 12022.53, subdivision
(c), allegation attached to count 2.
In a part of his report dealing with section 654 issues, the probation officer stated:
"The victim in Count[s] 2, 3 and 5 is separate and distinct from the victim in Count 1."
The report does not state who the victims are in the various counts. It is clear from the
information the victim in count 1 is Moraima and the victim in count 2 is Coss. It is less
clear who the probation officer believed was the victim or victims in counts 3 and 5.
In her sentencing statement, the prosecutor, asserting the multiple victims of
violent crime exception to section 654, argued the double punishment prohibition
contained in that section did not bar the imposition of sentence on count 2, i.e., attempted
murder, and count 3, i.e., discharging a firearm at an occupied dwelling. The prosecutor,
citing cases holding that in a prosecution for discharging a firearm at an occupied vehicle,
each occupant of the vehicle is a victim, argued the victim in count 1 was Moraima, the
victim in count 2 was Coss and the victim in count 3, the discharge at an occupied vehicle
count, was Johnson, the third passenger in Coss's truck. That being the case, she argued
the court could properly sentence appellant on each of those counts.4
Before imposing sentence, in his general review of the case, the trial court stated:
"Now, as to the determinate terms in counts two, three and five, the victim in counts two,
three and five is distinct from the victim in count one." The court did not state who those
As to count one the trial court imposed a term of 25 years to life for the
substantive offense plus a term of 25 years to life based on the section 12022.53,
subdivision (d), enhancement.
As to count 2 terms were imposed on both on the substantive offense and the
section 12022.53, subdivision (c), enhancement and stayed pursuant to section 654.
As to count 3 the trial court imposed a term of five years for the substantive
offense plus 25 years to life based on the section 12022.53, subdivision (d), enhancement
and made those terms consecutive to the term imposed as to count 1.
As to count 5 the court imposed a term and stayed it pursuant to section 654.
The prosecutor conceded that section 654 required sentence on count 5 be stayed.
2. Sufficiency of Evidence
Appellant argues the evidence was insufficient to support the true findings on the
12022.53, subdivision (d), allegations in counts 3 and 5. Appellant's argument proceeds
as follows: Moraima was the victim in count 1, and the section 12022.53, subdivision
(d), firearm discharge causing death or great bodily injury allegation attached to that
count referred to her death. The trial court concluded the victim in count 1 was distinct
from the victim in counts 2, 3 and 5. Appellant concludes the victim in counts 2, 3 and 5
must be Coss because he was the only other person in his truck to sustain any injury as a
result of the shot fired by appellant. Appellant reviews the evidence concerning that
wound and argues as a matter of law it did not amount to great bodily injury.
We have reviewed the evidence, including the photographs, dealing with the
wound suffered by Coss. A strong case can be made that Coss did not suffer great bodily
injury. It is unnecessary, however, we resolve the issue because the severity of that
wound is irrelevant to the true finding on the section 12022.53, subdivision (d), allegation
in counts 3 and 5.
In People v. Oates (2004) 32 Cal.4th 1048 the court concluded it was proper under
the facts of that case to impose multiple enhancements on multiple counts concerning
multiple victims pursuant to section 12022.53, subdivision (d), even though only one
person in that case was injured. In Oates the defendant fired two shots at five people but
injured only one. The defendant was convicted of five counts of attempted murder and a
section 12022.53, subdivision (d), true finding was made as to each count. The court
interpreted section 12022.53, subdivision (d), to require a person suffer death or great
bodily injury as a result of a firearm discharge during the commission of the charged
offense but did not require the victim of that charged offense be the person injured. (Id.
at pp. 1055-1062.)
The court also concluded based on the multiple victim of violent crimes exception
to section 654 it was proper to impose multiple section 12022.53, subdivision (d),
enhancements as to multiple counts involving multiple victims even when only one
person suffered death or great bodily injury as long as that injury occurred during the
commission of each charged offense. (People v. Oates, supra, 32 Cal.4th at pp. 10621063.)
In People v.Garcia (1995) 32 Cal.App.4th 1756, 1780-1784, as to a charge of
discharging a firearm at an occupied vehicle, the court held each occupant of the vehicle
is a victim of the crime.
In the present case appellant discharged a firearm into a vehicle occupied by
Moraima, Coss and Johnson. Each was a victim of that crime. During the commission of
that crime, Moraima died as a proximate result of appellant discharging a firearm at the
vehicle. That being the case, pursuant to Oates the severity of Coss's gunshot wound is
irrelevant because a true finding on the section 12022.53, subdivision (d), as to counts 3
and 5 could be based not on Coss's wound but on the death of Moraima. As in Oates
there were separate victims in each of the counts and it was proper to sentence appellant
on each and impose a section 12022.53, subdivision (d), enhancement on each.
3. Jury Finding
Appellant notes section 12022.53, subdivision (j), requires the trier of fact find
true all facts required under subdivision (d), including the discharge of the firearm caused
great bodily injury or death. Appellant notes, however, in this case the verdict form
stated not that the jury found great bodily injury, but merely bodily injury. He argues
there was, therefore, no true finding on an essential element of the allegation.
The finding was sufficient. Instruction on the elements of a firearm discharge
enhancement pursuant to section 12022.53, subdivision (d), is not provided by the verdict
forms. The jury was fully instructed by the court concerning those elements and the
verdict form merely provides a place for the jury to report its finding on the allegation.
Obviously, if the verdict form is written to describe the jury's particular findings on the
elements, it should do so accurately. The form stated the jury found "bodily injury"
within the meaning of section 12022.53, subdivision (d). Bodily injury within the
meaning of that section is great bodily injury. In any event, assuming any error, no harm
was done appellant by the form and it satisfies the requirement the jury make a finding on
I. Sentencing Issues
1. Count 5
As to count 5 appellant was convicted of discharging a firearm from a vehicle
(§ 12034, subd. (d).) A term was imposed on that count and stayed pursuant to section
654. The trial court at sentencing made no mention of the section 12022.53, subdivision
(d), discharge of a firearm causing great bodily injury or death, allegation found true as to
that count. Appellant correctly argues by operation of law the enhancement should also
have been stayed pursuant to section 654. As the Attorney General points out, the
abstract of judgment shows both the term for the offense in count 5 and its enhancement
were stayed pursuant to section 654.
2. Count 2
The Attorney General argues the trial court imposed an unauthorized sentence on
count 2. As to count 2 appellant was found guilty of attempted murder with a true
finding on an allegation the attempted murder was willful, deliberate and premeditated.
As to that count, the trial court imposed the middle term of seven years generally
applicable to attempts to commit crime punishable by life imprisonment. (§ 664, subd.
The Attorney General argues and appellant agrees this sentence was unauthorized.
Section 664, subdivision (a), sets the sentence for attempted murder with a finding the
crime was willful, deliberate and premeditated as life with the possibility of parole. We
agree the trial court erred and we remand the matter for resentencing.
3. Count 3
In count 3 appellant was convicted of shooting at an occupied vehicle in violation
of section 246 and was sentenced to a term of five years in prison. As to that count, the
trial court imposed but stayed pursuant to section 654 an enhancement for use of a
firearm within the meaning of section 12022.5, subdivision (a). Appellant argues and
respondent agrees that because the use of a firearm is an element of the charged offense,
it was not enough merely to stay the enhancement, it should have been dismissed. We
agree. On remand the trial court should so indicate.
The matter is remanded for resentencing. In all other respects, the judgment is
CERTIFIED FOR PARTIAL PUBLICATION
BENKE, Acting P. J.