Defendant Phong Bui appeals a judgment entered upon a jury verdict finding him guilty of attempted murder (Pen. Code,
I. BACKGROUND
A. The Robbery
Billy Huynh and his wife Tammy Le lived in Bay Point with their son, William, and with Le’s children, Thu and Mike Le.
At approximately 11:45 p.m. on November 13, 2005, while Le was in bed, two men came into her bedroom. Her baby, William, was also in the room. Le called for Huynh, who emerged from the bathroom, and the two men made them both lie down. The older of the two men had a knife, and the other, who was wearing a mask and appeared to be about Mike’s age, was holding a gun.
Defendant took the home phone and cell phone, and asked where the safe was. Le said that the key to the safe was downstairs, and defendant brought Huynh downstairs. Before doing so, defendant went into other rooms. He pointed a gun at Thu, who was in her bedroom, told her to give him her phone, took the phone, and left the room. Thu then went into Le’s bedroom.
Huynh hoped defendant would be satisfied with $200, which was kept under the kitchen sink. In the kitchen, however, defendant pointed the gun at Huynh, and Huynh tried to push the hand holding the gun away. The gun went off, and Huynh fell to the floor, face down, unable to move. As he lay on the floor, he heard at least two more shots. The time between the first shot and the later shots was “Very quick. Less than 10 [seconds],” and the second and third shots occurred in rapid succession.
The man with the knife kept Le, Thu, and William in Le’s bedroom. Le heard four gunshots from downstairs. Thu testified to hearing two or three shots. The man with the knife ran out of Le’s bedroom, saying “[W]hat the hell are you doing[?],” or “Why the hell did you shoot him?” Le ran downstairs and saw Huynh lying on the kitchen floor, “all bloody.” Defendant and the other man ran away.
After police officers arrived, Huynh began to feel excruciating pain in his abdomen, and he passed out on the way to the hospital. He had four surgeries to treat his injuries, including surgery on the gunshot wounds to his arm and abdomen, and surgery to remove clots from his left leg.
Doctors who treated Huynh found a bullet entry wound in the elbow, and no exit wound. Among Huynh’s injuries, the tip of his elbow was “in multiple pieces,” “fractured to the point where it was just like grains of sand,” and his distal humerus bone was fractured. Huynh suffered abdominal bleeding, resulting from an arterial injury.
Bullets were retrieved from Huynh’s elbow and the small of his back. Huynh later saw a small round hole in his kitchen window.
In an interview with a sheriff’s detective, defendant admitted taking part in the robbery. He said Mike had told him and another man, Abe, that there was money in a safe in Mike’s parents’ room and that Mike planned the robbery. He said the pair had rung the doorbell without result. He entered the house through Mike’s window, then opened the door for Abe. Abe then “took over.” Defendant was downstairs, and went up only when Abe called to him to collect the cell phones. Abe checked the rooms, and defendant saw that Mike’s sister was bald.
C. Evidence of Prior Incident
Amy Le
Fragments of a bank card or credit card taken during that robbery were found in the side yard of Huynh and Le’s home after Huynh was shot. Mike testified that he and defendant had stolen the card from someone in Oakland and used it, and that he had cut up the card and thrown it out the window.
D. Mike’s Testimony
Mike testified that he knew defendant.
Mike knew that his parents kept large amounts of money in a safe, and told defendant the combination to the safe. He and defendant agreed that defendant would steal the money, and after Abe was repaid, they would split the rest of the money. They planned for Mike to sneak out through his bedroom window and leave it open for defendant. Defendant later told Mike he had left the house with no money, but did not mention shooting Huynh.
Mike also testified that he and defendant had stolen bank cards on about five to 10 occasions in the past and used them to buy gasoline.
E. Defendant’s Testimony
Defendant testified in his own defense. He admitted being involved in the Oakland home invasion robbery in which he and Mike stole marijuana, and said that there were hard feelings afterward between Mike and Abe over the distribution of the marijuana. He knew before going to the Oakland house that it was occupied, and he brought a Taser with him.
Defendant testified that he did not remember stealing Li’s wallet and that he was not with Mike when he used Li’s bank card.
Defendant denied that Mike had suggested robbing his parents, but said Mike had bragged about having a safe and large sums of money in his house. Mike had told them that the safe would be in the bedroom, but had not given them the combination to the safe.
Defendant testified that Abe told him to lure Mike out of the house on the night in question. He denied having been present during the invasion of
Defendant testified that in March 2005, he had admitted in a juvenile proceeding to committing robbery. (§ 211.) When asked what the petition involved, he replied “Me and [another person] taking candy from kids on Halloween with lead pipes.”
F. The Verdicts and Sentencing
On count one, the jury found defendant guilty of attempted murder (§§ 187, subd. (a), 664, subd. (a)), but found not true an allegation that the attempted murder was willful, deliberate, and premeditated, and found defendant had personally used and discharged a firearm, causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)). On count two, the jury found defendant guilty of mayhem (§ 203), and found true three firearm enhancements (§ 12022.53, subds. (b), (c) & (d)). On count three, the jury found defendant guilty of first degree residential robbery (§§ 211, 212.5, subd. (a)) of Huynh, with firearm enhancements (§ 12022.53, subds. (b), (c) & (d)). On counts four and five, defendant was found guilty of first degree residential robbery (§§ 211, 212.5, subd. (a)) of Le and Thu respectively, with enhancements for personal use of a firearm (§ 12022.53, subd. (b)). On count six, the jury found him guilty of first degree residential burglary (§§ 459, 460, subd. (a)), with an enhancement for personal use of a firearm (§ 12022.5, subd. (a)). The trial court found true a strike allegation. (§ 1170.12.)
The trial court sentenced defendant to the midterm of seven years for count one, attempted murder. For count two, mayhem, it imposed a consecutive term of one year four months. For count three, residential robbery of Huynh, it sentenced him to a consecutive term of one year four months. The court also imposed a separate consecutive enhancement of 25 years to life pursuant to section 12022.53, subdivision (d), in connection with each of these three counts. The court sentenced defendant to serve sentences of four years for counts four and five, residential robbery of Le and Thu, to run concurrently with count three, and for each of these counts imposed a consecutive enhancement of three years four months pursuant to section 12022.53,
II. DISCUSSION
A., B.
C. Election and Unanimity Instruction
Defendant contends the trial court erred in failing to require the prosecution to elect which shot it relied on for the attempted murder charge and by failing to give a unanimity instruction.
In her closing argument, the prosecutor argued that whether or not the first shot defendant fired was an accident, the remaining shots were fired when Huynh was lying on his stomach, unable to move, and posing no threat, and that because there was no other purpose to the remaining shots, the jury should conclude he committed attempted murder. Defendant contends that in light of the testimony of the eyewitnesses and the prosecutor’s argument, defense counsel should have moved to require the prosecutor to elect which acts the People were relying on to prove attempted murder, that his counsel rendered ineffective assistance by failing to do so, and that the trial court should have given the unanimity instruction.
“In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001)
The evidence showed that all of the gunshots were part of one continuous course of conduct. Huynh suffered two gunshot wounds, and a shot appeared to have made a hole in the home’s window. Huynh testified the three shots he heard were fired within seconds of each other. There was no evidence from which the jury could conclude defendant fired one shot but not the other. (See People v. Riel (2000)
D. Consecutive Sentencing
1. Consecutive Terms for Counts One, Two, and Three
Defendant argues the trial court labored under a misunderstanding of the law when it ordered the sentences and enhancements for counts two and three to run consecutively to those for count one.
Section 12022.53 provides for additional punishment for use or discharge of a firearm during certain felonies, including mayhem (id.,
Our Supreme Court interpreted this provision in People v. Palacios (2007)
At the sentencing hearing here, the trial court and counsel discussed the effect of Palacios. After being invited to give her views on the appropriate sentence, the prosecutor said, “[I]t’s the People’s position based on Pal[ac]ios the 25 [to] life for Count One, Two, Three is mandatory consecutive, [f] So based on my understanding of the case law, the Court does not have discretion on the 75 to life indeterminate] sentence as [to] Count One, Two, Three for the [section 12022.53, subdivision (d)], and because of that 75 to life consecutive sentence the People do feel that striking the prior conviction is appropriate in this case.” After further discussion of sentencing on the various counts, defense counsel stated, “And . . . with respect to the Pal[ac\ios, it is unmistakably clear that the California Supreme Court is clear that it’s mandatory; therefore, I . . . submit on that issue.”
The trial court then ruled: “Given the nature of the enhancements [and] so forth, that the Court has no discretion in imposing or not imposing, the Court will find in the interest of justice pursuant to 1385 to strike the strike allegation that was found true, May 12, ’05, 211 . . . .” As relevant here, the court then imposed the midterm of seven years for count one, with a consecutive 25-year-to-life enhancement under section 12022.53, subdivision (d). On counts two and three, it imposed consecutive sentences of one-third the midterm, and for each of those counts imposed a consecutive enhancement of 25 years to life under section 12022.53, subdivision (d).
Defendant contends both the trial court and counsel misunderstood the reach of the Palacios decision—that is, that they mistakenly believed Palacios required the court to impose consecutive enhancements under section 12022.53, subdivision (d) on counts one, two, and three, whether or not section 654 might otherwise prohibit multiple punishment for the underlying offenses.
In our view, defendant has the better argument. The colloquy between the trial court and counsel persuades us the court believed Palacios required
This interpretation, however, misreads Palacios. The question before our high court in Palacios was not whether section 654 prohibits multiple sentences; the question was whether section 654 prohibits multiple enhancements under section 12022.53 where section 654 did not prohibit multiple punishment for the underlying offenses. (Palacios, supra,
Defendant contends the trial court was obliged to stay the sentences on counts two and three pursuant to section 654. As a backup argument, he contends that if we conclude the sentences were not required to be stayed, we should remand the matter to the trial court to exercise its discretion to decide whether to impose consecutive or concurrent terms.
We agree with defendant that under section 654, he may not be punished for both the attempted murder and mayhem counts. At the sentencing hearing, the trial court indicated that the two crimes were “the same occasion and same set of operative facts.” The offenses were both based on the shooting of Huynh. As we have already concluded—and as the Attorney General argued in opposing defendant’s contention that a unanimity instruction was required—the three shots were fired within seconds of each other, and formed one transaction.
As to the count of robbery of Huynh, the trial court made no finding, implied or express, that the robbery and attempted murder of Huynh arose from an indivisible course of conduct with a single objective. It has been held that “where a burglary or a murder is committed to facilitate a robbery, section 654 prevents multiple separate terms under separate statutes for each such ‘indivisible’ offense.” (People v. Melton (1988)
Because we are remanding for resentencing, we need not consider defendant’s contentions that his counsel rendered ineffective assistance in connection with the sentencing hearing.
2. Terms for Enhancements on Counts Four and Five
The trial court ordered the sentences for counts four and five to run concurrently with that for count three, but imposed consecutive enhancement terms (one-third of 10 years) under section 12022.53, subdivision (b), in connection with those offenses. Defendant contends it was error to impose consecutive enhancement terms when the sentences on the underlying offenses were ordered to run concurrently with other sentences. The Attorney General properly concedes this point. As explained in Mustafaa, “an enhancement may not be imposed as a subordinate term on its own” (Mustafaa, supra,
The matter is remanded for resentencing in accordance with the views expressed in this opinion. In all other respects, the judgment is affirmed.
Ruvolo, P. J., and Sepulveda, J., concurred.
Appellant’s petition for review by the Supreme Court was denied May 18, 2011, S191488.
Notes
All undesignated statutory references are to the Penal Code.
Because Mike and Thu Le share their mother’s last name, we will refer to them by their first names. Mike’s birth name was Vu Le, but he went by the name Mike.
Defendant was 17 years old at the time.
As Thu was going to bed about 11:00 p.m., she had noticed that Mike was not in his bedroom and the bedroom window was slightly open. He had been in his bedroom sometime between 10:00 and 10:45 p.m., when Huynh said goodnight to him.
Mike testified that he had given the shoes to defendant. Shoes of the same type were found in defendant’s bedroom, and he confirmed that Mike had given them to him.
Thu had a medical condition that caused hair loss.
The marijuana robbery will be discussed in part I.D., post.
Amy Le does not appear to be any relation of Tammy Le. To avoid confusion, we will refer to her by both her first and last name.
At the time of trial, Mike was serving a six-year prison term for assault with a deadly weapon based on an incident that took place in July 2006. In a juvenile matter, he had also admitted to committing grand theft, based on a May 2006 incident that took place when he was on probation for a separate juvenile matter. The prosecutor in the present action had told him she did not have enough evidence to prosecute him, and promised him that if he testified truthfully, he would not be prosecuted.
On cross-examination, he testified that he was 16 years old at the time of the Halloween offense, and agreed that a victim’s statement that he got out of a car with a lead pipe, raised it in the air as if to swing it, and said, “Do you wanna make this easy?” sounded “fair.”
See footnote, ante, page 1002.
CALCRIM No. 3500 provides in part: “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
This issue was initially raised in an amicus curiae brief submitted by the First District Appellate Project (FDAP). Defendant has joined in FDAP’s arguments, and we shall treat them as defendant’s arguments. At our invitation, the Attorney General filed a brief in opposition to the amicus curiae brief, and defendant submitted a reply.
Section 654, subdivision (a), provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
This question of whether the trial court acted in excess of its jurisdiction by failing to stay execution of a sentence under section 654 is not waived by failure to raise it below. (See People v. Scott (1994)
Or, to quote from the decision itself, “[t]he question is whether section 654 precludes punishment for more than one section 12022.53 enhancement when each is based on a single act committed against a single victim, although in the commission of separate crimes.” (Palacios, supra,
The Attorney General’s original opposition brief (filed before FDAP submitted its amicus curiae brief raising the sentencing issues relating to Palacios and § 654) argues in connection with the requirement of a unanimity instruction: “[T]he evidence in this case shows only one criminal act of attempted murder, even though appellant fired several shots at Billy Huynh. The gunshots were so closely connected as to form a single transaction and, thus, constitute a continuous course of conduct. [ID • • • [T]he gunshots occurred in rapid succession. These acts are most appropriately viewed as one continuous attempt at murder during a brief and uninterrupted period of time.”
Defendant also points out three clerical errors in the abstract of judgment, which the Attorney General has conceded must be corrected to reflect the judgment of the trial court. Because we are remanding for resentencing in full, we need not address these errors here.