APPEAL from a judgment of the Superior Court of Tulare County. Paul Anthony Vortmann, Judge. (Super. Ct. No. VCF186464C)
The opinion of the court was delivered by: Ardaiz, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Eric James Lawrence stands convicted, following a jury trial, of attempted unpremeditated murder, in the commission of which he personally used and intentionally discharged a firearm (Pen. Code,*fn2 §§ 187, subd. (a), 664, 12022.53, subds. (b), (c) & (e)(1); count 1), shooting at an inhabited dwelling (§ 246; count 2), assault with a firearm, in the commission of which he personally used a firearm (§§ 245, subd. (a)(2), 12022.5, subds. (a) & (d); count 3), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 4).*fn3 Following a bifurcated court trial, appellant was found to have served two prior prison terms. (§ 667.5, subd. (b).) Sentenced to a total unstayed term of 30 years in prison, he now appeals, raising various claims of instructional and sentencing error. For the reasons that follow, we will remand the matter for correction of sentencing errors, but otherwise affirm.
As of July 1, 2007, Craig Isherwood was staying at Devon Fox‟s house in Tulare.*fn4
Fox owned a Jeep Grand Cherokee, which she let appellant use. The night before, Isherwood saw appellant at Fox‟s house. Appellant had a pistol-grip sawed-off shotgun. Appellant said he had just gotten out of "the pen" and that he was just waiting for somebody to "mess around" with him so that he could shoot the gun.
Early on the morning of July 1, Renee York was at her residence in Tulare when Arthur Machado and appellant arrived in a white Jeep.*fn5 York was outside, waiting for appellant, who asked what was the matter. York responded that she was upset with a comment Larry Robinson had made to her. Appellant asked what it was, and York explained that Robinson had asked about the "XIV" tattoo on appellant‟s head. Robinson had asked why, if appellant was White, he had something like that on his head, and had said it meant appellant was a punk. Appellant got angry very quickly and asked if York knew where Robinson lived. Appellant said he was going to go over there and show Robinson what a punk was.
Appellant had York accompany him and Machado to show them how to get to Robinson‟s residence. On the way, appellant told York that when they got there, she was to knock on the door and bring Robinson outside. Appellant said he was going to "get in an old fashioned ass whoopin." At no time was there any talk about killing anybody. During the approximately five-minute drive to Robinson‟s residence, York neither saw nor heard mention of a shotgun.
On the date in question, Doris Burleson resided at the Tulare Motel on South K Street. The motel, which was laid out in a horseshoe shape, had a total of 24 units. Units 12 through 15 ran across the bottom of the "U"; Viola Astorga lived in unit 14, while Robinson resided in unit 15. Unit 16, in which Burleson lived, was the first unit starting up one side of the horseshoe.
Burleson and Astorga were in unit 14 when, between 3:30 and 3:45 a.m., a very loud car pulled in the driveway. The loud vehicle, a white Jeep, parked in front of unit 13, almost between units 13 and 14. Burleson exchanged greetings with York as York walked past unit 14.
York knocked on the door of unit 15, and, when Robinson opened it, asked if he would come outside so they could talk. Robinson stepped out of the room. Appellant, who was by the Jeep, approached Robinson. Burleson heard him yelling something, and the two got into an argument.*fn6 Appellant threw a punch at Robinson. Although Burleson was unable to tell whether it connected, York, who had jumped into the backseat of the Jeep and lain down because she was scared, heard what sounded like someone getting punched. While she did not see who struck whom, she sat up and saw that Robinson had gone to the ground, while appellant had lost his balance a little. Robinson stood up, and she heard him say something like, ""well, let me get what I have,‟" and something about his baseball bat. He ran toward his door. Although York never saw a bat, Robinson never let go of the door handle, but half of his body went around the door as if he was going to grab whatever was behind it. Burleson saw Robinson run back inside his room, and heard appellant say something like, ""you‟re gonna be a punk, bitch.‟"
Appellant turned around and Machado, who had also been by the Jeep, handed him a sawed-off shotgun. Burleson said, ""Oh, my God he has a sawed-off shotgun.‟" Appellant and Machado looked at her, then appellant took a few steps, put the gun up by the door to Robinson‟s room, and pulled the trigger. He was about a foot from the door. York, who did not see how appellant came to have the gun, saw appellant point the gun in the direction Robinson had run, and she lay down again. She heard the gun being fired and saw a big light flash, so she started the Jeep so that when appellant got back in, he could just go. According to York, appellant was still standing by the end of the Jeep, so the gun was pretty far from the door.*fn7 Only a couple of seconds elapsed between when she saw the gun and when she heard the shot. Robinson never came back out.
Appellant and Machado ran back to the Jeep and left with York. Burleson called 911. Robinson subsequently came out of unit 12. He was holding a bunch of bandages to his side and said he had been shot.
Officers were dispatched to the Tulare Motel at 3:46 a.m. Robinson was hiding in a shed and ran from the uniformed officers, who had to use physical force to detain him.
He had been shot in the back. Burleson saw a hole about the size of a softball in the door of unit 15. The insulation from the door was blown across the room and there were BB‟s all over the floor.
Appellant, York, and Machado drove to Devon Fox‟s house and went into the kitchen. According to Isherwood, appellant had the shotgun and said he had just shot somebody. He was sweating profusely, as if he had been running, and seemed very nervous. He said he had to change his shirt and get the gunpowder residue off his arms. As he was washing himself, he kept saying ""I shot the mother fucker. Yeah, I shot him.‟" He almost seemed happy about it. Machado looked like he was going to be sick and kept repeating that he could not believe appellant shot ""that guy.‟" According to York, appellant was "freaking out." He was yelling that he could not believe what just happened, because it was not supposed to go like that. He was trying to wash his arms. He was not saying anything that sounded like bragging.
Isherwood subsequently told police that Machado wiped down the Jeep to get rid of any fingerprints. According to York, however, Fox cleaned out the Jeep. Machado asked York if she could find him a ride out of there. She told him to calm down, that she was getting all three of them a ride. A van ...