(Super. Ct. No. 08F07560)
The opinion of the court was delivered by: Duarte , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Tony Salvadore Jimenez, Jr. of discharging a firearm at an inhabited dwelling (Pen. Code,*fn1 § 246 [count one]) and two counts of assault with a semiautomatic firearm (§ 245, subd. (b) [counts two [Michael Ramirez] and three [Walter Bivins*fn2 ]]), as well as multiple enhancements.*fn3
The trial court sentenced defendant to an aggregate term of 40 years to life in prison.
On appeal, defendant contends that: (1) the trial court prejudicially erred in failing to instruct on the lesser included offense of negligent discharge of a firearm (§ 246.3); (2) the trial court prejudicially misled the jury by instructing with CALCRIM No. 400; (3) the pretrial identification procedure was unduly suggestive; (4) the trial court erroneously imposed both a 25-year-to-life term and a 15-year-to-life term on count one; and (5) defendant's sentence constitutes cruel and unusual punishment.
As we will explain, we agree only with the fourth contention and decline to address the fifth. Accordingly, we shall affirm the judgment but must remand for resentencing.
FACTUAL AND PROCEDURAL HISTORY
On the night of July 15, 2007, there was a party at Nancy Gomez's house. Nancy Gomez's daughter, Alyssa Gomez,*fn4 and Alyssa's boyfriend, Johnathon Vasquez, were present, as well as (future victims) Walter Bivins and Michael Ramirez.
The testimony about what happened that night was confused by claims of memory loss and intoxication, and much of the evidence came from pretrial statements to peace officers. We glean the following relevant facts by viewing the evidence in the light most favorable to the verdicts.
At some time during the party, a group of between five and seven young Latino males arrived uninvited. The men identified themselves to several people as "Diamonds" or "Nortenos." They began harassing people at the door and otherwise tried to control the party. When asked to leave, they became violent, fired guns at and around the house, and ultimately one of the men shot Ramirez in the leg.
Although the eyewitnesses agreed that guns were fired and a shooting occurred soon thereafter, they disagreed on many details. As mentioned ante, most testified that they had forgotten the entire evening, let alone any details of the shooting, as well as any conversations they had with law enforcement about the party, the shooting, and the shooters' identities. The available evidence does show that at the time the shooting started, some party guests were on the front walkway of the house and on the front lawn, either mingled with the shooters or between the house and the shooters. At least three shooters were either on the front lawn, the sidewalk, or the street.
When Nancy arrived home very late in the evening, she turned off the music and attempted to shut down the party. When asked to leave, the uninvited men started a disagreement with Ramirez and were "trying to start fights."
Nancy remembered telling police she saw a young kid pull a gun, and then "they were just shooting guns, and then [Ramirez] got shot in the leg." On the night of the shooting, she told Sacramento Police Department (SPD) Officer Ben Spencer she heard more than one gun, and each gun had been fired multiple times. Nancy described the man whom she saw pull a gun as Hispanic, wearing a white or red T-shirt, in his early 20s, about 5'5", with short black hair. She described a second man, who had been "trying to start fights" as Hispanic, wearing a white T-shirt with red writing and gold chains around his neck, in his mid-20s, also with short, black hair.
Bivins told Officer Spencer that before the shooting, one of the uninvited men introduced himself as "Tiger" and said he was a "Diamond." As the uninvited men were leaving, on the walkway leading to the front lawn, Bivins saw one of them pull out a gun, point it "at the legs of the crowd" and try to shoot, but the gun jammed. That same man then shot at Bivins's feet, and then "almost all of the guys had guns and started shooting" as Bivins and others ran back toward the house. Bivins looked back and saw "one guy standing out in the street shooting up into the air."
Bivins described the first shooter as a Hispanic male who was about 5'5", 18-19 years old, and very slim with a thin mustache, a red and white backwards hat and a white T-shirt. He also described a man who had been "arguing and talking" as Hispanic, also 5'5", but chubbier and wearing a black T-shirt, with a black hair cut in a flat top--Bivins was not sure whether this second man had a gun.
When he spoke again with the police about a year after the shooting, Bivins said the first gun was pointed directly at him when it jammed, and thus he had been focusing on the person holding it. A "few" of the men had guns, but Bivins was most focused on the first person, who he remembered from an introduction as "Tiger." When shown a photo lineup, Bivins pointed out defendant as someone at the party and remembered his "smirky little smile," but was only "50, 55" percent sure that defendant was a gunman.
Alyssa told SPD Officer Troy Hawley the uninvited men left by way of the front door, walking backwards. Three of them pulled out guns, one after the other. They each shot four to six times. The third shooter, who she thought was named "Tony" or "Tiger," shot toward Ramirez.
Alyssa described the three shooters, and told Officer Hawley that she got a good look at them because they had been flirting with her. The first shooter pulled a black semiautomatic pistol out of his waistband. He was a Hispanic male, 16-17 years old, 5'6" and 150 pounds, with a light complexion, a Mongolian style hair cut, no facial hair, and a chubby face, wearing a white T-shirt and red and white sneakers. The second shooter was a Hispanic male, 20-21 years old, 5'10" and 150 pounds, with a very dark complexion, short, black hair, bushy eyebrows, a thin black mustache and goatee, full lips, and a gold grill. He was wearing a white T-shirt with green, gold, and black writing, blue jeans, and white sneakers. He also had diamond tattoos on his hand, and held a black semiautomatic pistol. She remembered the third shooter as "Tony" and "Tiger." He was a Hispanic male, 18-19 years old, 5'7"-5'8" and 130 pounds, with a black, Mongolian style haircut, a thin mustache and small goatee, brown eyes, bushy eyebrows, and a small mole on his left cheek. He was wearing a white T-shirt, blue jeans, and white sneakers. He had the same type of black, semiautomatic ...