APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. (Super. Ct. No. F10904688)
The opinion of the court was delivered by: Cornell, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
When a group of thieves stole marijuana from his legal marijuana garden, appellant Phayvanh Dydouangphan shot at their vehicle as they drove away. One of the thieves, Stanley Dale Wallace, was killed. Dydouangphan testified that someone in the getaway vehicle had pointed a gun at him and he fired in self-defense.
Dydouangphan was charged with first degree murder (Pen. Code, § 187, subd. (a)),*fn2 but the jury returned a verdict of voluntary manslaughter (§ 192, subd. (a)). In addition, the jury found Dydouangphan guilty of the charged crimes of assault with a firearm (§ 245, subd. (a)(2)) and shooting at an occupied vehicle (§ 246). Various enhancements also were found true, the most significant of which was that Dydouangphan personally discharged a firearm resulting in great bodily injury or death within the meaning of section 12022.53, subdivision (d). He was sentenced to a term of three years on the section 246 violation and 25 years to life for the section 12022.53, subdivision (d) enhancement. The sentence on the voluntary manslaughter conviction was imposed concurrently.
Dydouangphan argues the trial court erred in instructing the jury and in failing to stay the sentence on the voluntary manslaughter conviction pursuant to section 654. We conclude there was no error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The testimony was mostly consistent, therefore only a short summary is necessary. Dydouangphan had the appropriate documents to allow him to grow marijuana for medicinal purposes. He planted a marijuana garden in his backyard. The plants grew to a height that permitted people on the street to see the plants over a six-foot fence. Thefts became a problem, so Dydouangphan kept three dogs in the backyard and took other measures to protect his crop.
The events on the day of the shooting largely were presented through four witnesses, Richard Alfred Scott Young, George Helton, Sarah Resendez, and Nicole Green, each of whom participated in the attempted theft from Dydouangphan's marijuana garden.*fn3 While each witness attempted to minimize his or her role in the crime, the relevant facts essentially were consistent.
The decedent, Wallace, appeared to be the instigator of the plot. Young and Wallace had walked by Dydouangphan's residence to observe the marijuana garden prior to the theft. They decided to return later that night.
Young and Wallace recruited Resendez and Green to join them; Green had access to her father's pickup truck. They drove to Dydouangphan's residence and again walked by the marijuana garden. Young claimed he was uncomfortable with the theft, so Green drove the four to a motel, where Helton was picked up. Green then drove all five towards Dydouangphan's residence. On the way, they saw a white van occupied by some acquaintances. They stopped the van and Wallace, and perhaps others in the pickup, got out of the pickup to speak with the occupants of the van. The occupants of the van decided to join in the theft, so both vehicles headed to Dydouangphan's residence.
When they arrived, the men from both vehicles jumped out, pulled down a portion of the fence that surrounded the marijuana garden, and started pulling plants out of the ground.
Dydouangphan woke up when the commotion caused his dogs to bark. He went into the backyard, saw the men, and returned to the house to get his shotgun. When he returned to the backyard, he fired one warning shot into the air. The men ran towards the vehicles with marijuana in their arms. The van took off before the men arrived at the vehicle. The marijuana was thrown into the bed of the pickup and everyone climbed into the pickup, two in front and five in back.
When escaping the scene, Green inexplicably drove a route that took the pickup past the front of Dydouangphan's residence. While each of the prosecution witnesses testified they never saw any thief with a gun, they also admitted they were not certain if anyone had a gun or not.
Dydouangphan testified the pickup slowed down as it approached the front of his residence and one of the men on the passenger side of the vehicle pointed a handgun at him. Dydouangphan, fearing for his life, aimed his shotgun at the pickup and fired. The shot broke out the front passenger window of the pickup and two pellets struck Wallace. One of the pellets struck his forehead and entered his brain. Although Wallace survived for a few days, he died as a result of the injury.
After Wallace was shot, Green drove the pickup to a nearby park and all of the men ran away. Green and Resendez attempted to hide the marijuana in the park. After the marijuana was unloaded, Green sought help from some workers in the vicinity. No gun ever was found in the pickup or park, although the marijuana was recovered.
The issue at trial was whether Dydouangphan shot in self-defense or committed murder. The prosecution argued there was no gun and that Dydouangphan shot at the pickup because he was frustrated with people stealing his marijuana. Defense counsel argued that the only reason Green would drive by and slow down in front of Dydouangphan's residence was because one of the men wanted to intimidate or shoot at Dydouangphan. He explained the lack of a gun by pointing out that four men ran from the pickup before the police arrived, and one of them undoubtedly had the gun with him. He also attacked the credibility of the prosecution's witnesses, including pointing out the unlikely claim by the witnesses that testified that they did not know any of the men in the van, including the two that entered the pickup after fleeing Dydouangphan's residence.
The jury convicted Dydouangphan of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)), as well as assault with a firearm (§ 245, subd. (a)(2)) and shooting at an occupied vehicle (§ 246). It also found true the allegations that Dydouangphan personally used a firearm during commission of the offense (§ 12022.5, subd. (a)) (counts 1 and 2) and personally discharged a firearm during commission of the felony causing great bodily injury or death (§ 12022.53, subd. (d)) (counts 1 and 3). Dydouangphan was sentenced to a determinate term of three years, plus an indeterminate term of 25 years to life for the section 12022.53 enhancement.
Dydouangphan contends the trial court erred when it failed to instruct the jury sua sponte that negligent discharge of a firearm was a lesser included offense to shooting at an occupied vehicle. He relies ...