The opinion of the court was delivered by: Blease , Acting 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
About 4:30 a.m. on December 30, 2009, officers responded to a report of suspicious activity at the intersection of 16th and P Streets in Sacramento. The caller had observed two men attempting to break into an ATM using a blow torch and they were leaving in a pickup truck. Officers saw the pickup, later determined to be stolen, and activated their lights and sirens in an attempt to stop the pickup. Instead of stopping, the driver, later identified as defendant Ronnie Mauricio Barahona, led the officers, who were in separate patrol cars, on a high-speed chase through residential streets, running stop signs, and eventually merging onto westbound Interstate 80. Defendant exited the highway into West Sacramento, entered a residential area, drove onto a lawn, almost colliding with the house, sideswiped a Chevy Blazer, and continued until he struck a fire hydrant. Defendant and John Ditgen then fled on foot.
Officers Michael Cuevas got out of his patrol car and Officer Michael Stoltzfus attempted to cut defendant off with his patrol car. Defendant fired a gun once, paused, and then fired two more times. Officer Stoltzfus got out of his patrol car. Defendant continued to run, turned and fired his gun. Officer Stoltzfus claimed that defendant fired the fourth shot directly at him. The officers lost sight of defendant.
Officers found Ditgen hiding in a backyard of a residence. Three hours later, officers found defendant hiding in the rafters of a detached garage. Defendant assisted officers in recovering his gun, a loaded semiautomatic firearm.
Defendant testified at trial. He admitted that he attempted to break into the ATM with a blow torch, drove a stolen truck, evaded the police who were chasing him, drove dangerously, and hit other vehicles and the fire hydrant. He had the gun for protection and had put the gun in the stolen pickup truck a day and a half earlier. The gun was loaded with hollow point bullets. He fled on foot and never looked back as he ran. In an attempt to scare the officers, he fired the first shot when he was in the street, two more shots when he was on the grass, and the fourth shot into the ground. He denied that he aimed the gun at either officer.
An information charged defendant with the attempted murder of Officers Stoltzfus and Cuevas (Pen. Code, §§ 187/664; counts 1 and 2, respectively), assault with a semiautomatic firearm upon both officers (Pen. Code, § 245, subd. (d)(2); counts 3 and 4), vehicle theft or unauthorized use (Veh. Code, § 10851, subd. (a); count 5), receiving stolen property (Pen. Code, § 496; count 6), felony evading (Veh. Code, § 2800.2; count 7), hit and run, a misdemeanor (Veh. Code, § 20002, subd. (a); count 8), and resisting arrest, a misdemeanor (Pen. Code, § 148, subd. (a)(1); count 9). In connection with counts 1 through 4, it was further alleged that defendant personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)).
At trial, defendant entered a guilty plea to counts 5, 7, 8, and 9, and count 6 was dismissed. Prior to the court instructing the jury, the information was amended, with defense counsel's concurrence, to add four counts of discharging a firearm in a grossly negligent manner, one for each gunshot (Pen. Code, § 246.3, subd. (a); counts 10, 11, 12, and 13) with a special finding that defendant personally used a firearm (Pen. Code, § 1192.7, subd. (c)(8)).
A jury convicted defendant on counts 3 (Officer Stoltzfus), 10, 11, 12 and 13. In connection with count 3, the jury found the firearm use allegation to be true. In connection with counts 10 through 13, the jury specially found that defendant personally used a firearm. The jury acquitted defendant on count 4 (Officer Cuevas). The jury was deadlocked on counts 1 and 2 and a mistrial was declared on those counts.
At sentencing, counts 1 and 2 were dismissed upon the prosecutor's motion. The court sentenced defendant to state prison for an aggregate term of 29 years: the midterm of seven years for the assault offense (count 3) plus a consecutive 20-year term for firearm use/discharge; a consecutive one-third the midterm or eight months for vehicle theft/unauthorized use (count 5); a consecutive one-third the midterm or eight months each for two counts of discharging a firearm (counts 10 (first shot) and 11 (second shot)); concurrent sentences on counts 7 (evading), 8 (hit and run), 9 (resisting), and 12 (third shot); and a stay on count 13 (fourth shot). The court imposed an $1,800 ...