APPEAL from a judgment of the Superior Court of San Joaquin County, Bernard Garber, Judge. Affirmed. (Super. Ct. No. SF104306A).
The opinion of the court was delivered by: Robie, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury found defendant Luis Villa guilty of gross negligence in discharging a firearm, possession of a firearm by a juvenile previously adjudged a ward of the juvenile court, and possession of a loaded firearm in a public place. Defendant was 16 years old at the time of the offense. The trial court sentenced him as an adult to two years in state prison.
On appeal, defendant has four claims: (1) the evidence was insufficient to convict him of gross negligence in discharging a firearm; (2) the two convictions for possession of a firearm are unconstitutional based on the recent United States Supreme Court decision in District of Columbia v. Heller (2008) 554 U.S. ___ [171 L.Ed.2d 637]; (3) the trial court abused its discretion in denying his motion to sever; and (4) the trial court prejudicially erred by not holding a hearing to determine if he was fit to be sentenced as an adult. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On or about April 25, 2007, defendant began yelling at and insulting several individuals across the street near his house. The targets of defendant‟s insults were standing in front of a neighbor‟s home. After some time, defendant retreated into his house and returned with a large gun. One of the individuals defendant had insulted made a cell phone call. Five to ten minutes later, co-defendants Miguel Hernandez and Juan Cervantes arrived in a black car. Cervantes got out of the car with a handgun and challenged defendant to put down his gun so they could "fight like men." Cervantes and defendant both dropped their guns. At some point, however, defendant picked up his gun and fired it two times. Cervantes picked up his gun and got back into the black car, which then drove off quickly.
Around this time, Deputy Sheriff Kevin Johnson arrived at the end of the street in a marked patrol car and saw the black car reversing at high speed toward his car. The black car slowed and then began to go forward. At that time, Cervantes got partially out of the passenger side window and fired two to three shots. Deputy Johnson activated his sirens and pursued the black car. After a brief pursuit, the black car crashed several blocks away, and Hernandez and Cervantes were arrested.
The prosecutor brought several charges against defendant, including attempted murder. Under Welfare and Institutions Code section 707, subdivision (d)(1), the attempted murder charge allowed the prosecutor to directly file charges against defendant in criminal court rather than petition for a hearing on whether defendant was a fit and proper subject to be dealt with under the juvenile court law. (Welf. & Inst. Code, § 707, subd. (d)(1); see id., § 707, subd. (b)(12).) The prosecutor charged defendant, Hernandez, and Cervantes in the same complaint. Following the preliminary examination, where defendant and his co-defendants were held to answer, defendant moved to sever the trials because all three defendants would be claiming self-defense and he argued their defenses were mutually antagonistic. The trial court denied the motion.
Defendant admitted a prior juvenile adjudication for assault with a deadly weapon that made him a ward of the state. The jury found him guilty of: (1) gross negligence in discharging a firearm (Pen. Code, § 246.3); (2) possession of a firearm by a juvenile previously adjudged a ward of the juvenile court for assault with a deadly weapon (id., § 12021, subd. (e)); and (3) possession of a loaded firearm in a public place (id., § 12031, subd. (a)). The jury also found Hernandez and Cervantes guilty of several charges; of particular relevance to defendant‟s appeal, the jury found Cervantes guilty of discharging a firearm from a motor vehicle.
Before sentencing, defendant moved for a hearing on his fitness to be dealt with under the juvenile system. The trial court determined it had the discretion to grant such a hearing but found no need for one because it had considered the probation report and determined it was appropriate to treat defendant as an adult. The trial court sentenced defendant to two years in state prison.
I. The Evidence Was Sufficient To Convict
Defendant Of Grossly Negligent Discharge Of A Firearm Defendant argues the evidence was insufficient to support his conviction for the grossly negligent discharge of a firearm. Defendant does not suggest there was no evidence to support the conviction but instead argues that the jury finding that Cervantes was guilty of willfully discharging a firearm from a motor vehicle required defendant‟s actions to be excused as self-defense. Defendant appears to be suggesting that because the verdict against him was inconsistent with the verdict against Cervantes, we must reverse his conviction.
He is wrong. This court reviews a claim of insufficiency of the evidence to determine "whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) ""This review should be independent of the jury‟s determination that evidence on another count was insufficient‟" because "[i]t is well settled that, as a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.] The United States Supreme Court has explained: "[A] criminal defendant... is afforded protection against jury irrationality or error by independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts." (People v. Lewis (2001) 25 Cal.4th 610, 656.)
Here, defendant admits a rational trier of fact could have found sufficient evidence to support the verdict against him independent of the other verdicts, which is all that is necessary under Lewis to affirm the judgment. In particular, the eyewitness testimony that defendant fired first and that Cervantes had dropped his gun before defendant‟s shots provides a rational basis for finding defendant guilty of gross negligence in discharging his firearm. Defendant admits as ...