APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Affirmed with directions. (Super. Ct. No. |RIF128563).
The opinion of the court was delivered by: King J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
While riding in a car, defendant Angel Trujillo fired numerous shots from a semiautomatic rifle at another moving car. The other car had two occupants, a driver and a backseat passenger. At least two bullets hit the car, but neither occupant of the car was hit. Defendant was charged with two counts of attempted murder (counts 1-2; Pen. Code, §§ 187, subd. (a), 664),*fn2 two counts of assault with a semiautomatic firearm (counts 3-4; § 245, subd. (b)), and one count of discharging a firearm into an occupied vehicle (count 5; § 246). It was further alleged in connection with the assault charges that defendant personally used a firearm. (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8).) A jury acquitted him of the attempted murder charges, convicted him of the other charges, and found true the allegation that he personally used a firearm. He was sentenced to 15 years in prison.
On appeal, defendant contends: (1) the evidence is insufficient to convict him of two counts of assault because he had no knowledge of the backseat passenger in the car he was shooting at; (2) the court erred in failing to apply section 654 to stay the sentence on count 5 (shooting at an occupied vehicle); (3) the imposition of consecutive terms violated his rights to a jury trial and due process; and (4) the court erred in instructing the jury that it may not consider defendant's voluntary intoxication for any purpose other than in deciding whether defendant acted with an intent to kill or with deliberation and premeditation. In the published portion of our opinion, we conclude the evidence is sufficient to support convictions for assault with a semiautomatic firearm as to both occupants of the car even if defendant did not actually see the backseat passenger. In the unpublished portion of the opinion we hold that the sentence for count 5 must be stayed pursuant to section 654 and reject defendant's other contentions. We will modify the judgment to reflect the stay and affirm the judgment as modified.
In the evening of January 6, 2006, defendant and two of his friends, Steven Valdez and Jose Ruano, met at defendant's residence.*fn3 Valdez had driven to the house in his girlfriend's white Chevrolet Cavalier. The three friends talked and drank beer and tequila. Valdez told the others how his girlfriend's former boyfriend, "Adan," had tried to pick a fight with him at a party. Valdez said he wanted to confront and fight Adan, and the other two agreed to go with him. They did not discuss taking weapons with them. Before getting into the Cavalier, defendant went into the house to get his coat. When he returned to the car, he had a rifle hidden underneath the coat. Valdez drove the Cavalier, defendant was in the front passenger seat, and Ruano was in the backseat.
Adan's house is on a street corner with a stop sign. When Valdez pulled up to Adan's house, he saw someone outside the house, but could not tell who it was. Defendant yelled something out the window and Valdez "took off." Valdez then made a U-turn and drove back toward Adan's house. He stopped at the stop sign, facing the house.
Meanwhile, Edgar Padilla was driving his black Honda Civic with his neighbor, Christian Arias, in the backseat. They were chasing after people in a Ford Mustang convertible who, just moments earlier, used paintball guns to hit Padilla's car with paintballs. They came upon the Cavalier driven by Valdez as it was stopped at the intersection outside Adan's house. Padilla drove up behind the Cavalier. When the Cavalier did not move, Padilla drove quickly around it and turned left at the intersection. No one in the Civic said anything or made any gestures toward the people in the Cavalier.
Padilla's Civic had tinted windows and Valdez could not see who was in the car. Defendant told Valdez that Adan was in the Civic, so Valdez started to follow the Civic. Defendant pulled the rifle out from under his coat, leaned out of the window, and shot four to seven shots at the Civic. Padilla and Arias thought the shots were from a paintball gun. Padilla slammed on the breaks, stopping the Civic in the middle of the street, and dialed 911. Valdez then pulled around the Civic and drove off in front of it. Padilla could see that there was a driver, a passenger, and someone in the backseat of the Cavalier, but he could not see them well enough to identify them. Padilla followed the Cavalier onto the freeway. After getting through to a 911 operator and telling her the license number on the Cavalier, he stopped chasing the Cavalier.
The next morning, Padilla discovered that his car had been hit by bullets. He found bullet holes in the trunk lid and the muffler, and a .22-caliber bullet underneath his seat.
In February 2006, defendant's father told police that defendant lived in his house in January 2006 and that he owned three rifles at that time, including a .22-caliber rifle. He said that the .22-caliber rifle had been missing for two weeks.
The gun used in the shooting was not in evidence. Based upon testimony regarding the rapidity of the shots and Valdez's description of the gun that defendant used in the shooting, a detective testified that the gun was a semiautomatic firearm.
Defendant testified in his defense. In January 2006, he was 20 years old. He said he had been a heavy drinker since he was 15 years old. In the afternoon and evening of January 6, 2006, he drank approximately 10 beers, plus some brandy or scotch. He had also used cocaine that day. Valdez and Ruano were drinking with him. Valdez complained about Adan and his friends, saying "`I'm tired of these fools'" and, later, "`I think I know where they're kicking at.'" Defendant told Valdez, "`Well, let's go whip their ass,'" and "`let's go ...