(Super. Ct. No. 10F03332)
The opinion of the court was delivered by: Raye , P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Shannon Chapman was convicted of assault with a firearm (Pen. Code, § 245, subd. (a)(2))*fn1 with enhancements for personally using a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1)), discharge of a firearm at an unoccupied motor vehicle (§ 247, subd. (b)), negligent discharge of a firearm (§ 246.3), and possession of a firearm by a convicted felon (§ 12021, subd. (a)). The trial court sentenced defendant to eight years four months in state prison, plus a consecutive eight-month term in an unrelated case.
On appeal, defendant contends (1) the standard instruction on assault with a firearm (CALCRIM No. 875) impermissibly lowers the People's burden of proof, (2) there was insufficient evidence to convict him of assault with a firearm, (3) part of the restitution award was unauthorized, and (4) ineffective assistance of counsel. We shall vacate the restitution order and remand for a new restitution hearing. In all other respects, we affirm.
Patrick Alexander and defendant were friends who lived in the same neighborhood. Defendant's girlfriend, Malena Duncan, lived with Alexander. David Maddox was a friend of Alexander, defendant, and Duncan.
On the morning of May 9, 2010, Alexander was in his Rio Linda home with Maddox and another person. Defendant and Duncan pulled up in defendant's red Chevrolet Tahoe sport utility vehicle (SUV) and parked across the street, where they talked for about 10 to 20 minutes. Alexander decided to go outside and talk to defendant about fixing the front door to the house, which defendant had broken during an argument with Duncan a few days earlier.
Alexander approached and asked defendant if he was going to fix the door. Defendant lowered his sunglasses and said, "I'll get right on that." Thinking defendant was teasing him, Alexander asked defendant, "Are you fucking with me?" to which defendant replied, "Yes, I am."
Defendant got out of his SUV and punched Alexander in the mouth. Maddox and the other person then came out of the house and tackled defendant. When defendant managed to get off the ground, Alexander hit him. Defendant then went to his Tahoe, looked at his bloody nose in the side-view mirror, entered the SUV, and drove away.
Alexander returned to his house and heard two gunshots a few minutes later. Alexander ran out his side door and found defendant in his SUV at a stop sign, ready to turn right. After Alexander yelled, "That was a smart move," defendant made eye contact and backed up the SUV until it was parallel to Alexander's driveway. Defendant leveled a black pistol at Alexander, who dove into the house for cover. After Alexander heard a shot, he ran to the kitchen, looked out the window, and saw defendant drive away.
Alexander's vehicle sustained two bullet holes in the hood and a flat tire. A brick on the front of Alexander's house was also damaged. Two .45-caliber shell casings were found near the east curb by Alexander's home, and Alexander later found a spent large-caliber bullet resting on his car's engine.
Alexander testified at the preliminary hearing that he did not see defendant backing up his SUV, and he did not see defendant level a gun at him. At trial, Alexander testified that he felt threatened at the time, and his preliminary hearing testimony was not true. Alexander had received several threatening ...