(Super. Ct. No. 09F01087)
The opinion of the court was delivered by: Murray , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Miguel White and an accomplice robbed three pizza delivery men at gunpoint. During the third robbery, defendant shot the delivery man in the leg. Following a jury trial, he was convicted of three counts of second degree robbery (Pen. Code, § 211)*fn1 and one count of attempted carjacking (§§ 664/215, subd. (a)). Additionally, the jury found true three enhancements for personal use of a firearm (§ 12022.53, subd. (b)) and an enhancement for personal and intentional discharge of a firearm causing great bodily injury (§ 12022.53, subds. (c), (d)). The trial court sentenced defendant to state prison for 18 years four months plus 25 years to life.
On appeal, defendant contends (1) there is insufficient evidence to support the personal and intentional discharge of a firearm enhancement, (2) instructional error on that enhancement, and (3) trial counsel was ineffective for failing to request an instruction on accident. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2009, defendant lived in an apartment with Willie Soders, Latisha Watkins, and Sarina Lockhart. Defendant and Watkins were in a relationship, as were Soders and Lockhart. Soders's hair was styled in dreadlocks or "twisties" at the time, while defendant had a short haircut.
Pizza Guys Delivery Robbery
On January 20, 2009, defendant had Lockhart call in an order with Pizza Guys for delivery to an address other than their apartment. Defendant and Soders donned hooded sweatshirts and left the apartment 20 to 30 minutes later. They returned to the apartment with pizza and $90 cash.
Oleksander Melynk delivered the pizza order. Two men approached Melynk, one of whom was armed. The armed man pointed a shotgun at Melynk and said, "give me the money." Melynk handed over $100 cash, and the robbers fled with the pizza and the money.
Round Table Pizza Delivery Robbery
On January 22, 2009, Lockhart, at defendant's request, called in a delivery order to Round Table Pizza. Defendant and Soders donned hooded sweatshirts after the order was placed.
Joaquin Perez delivered the order to the address given by Lockhart, but the family residing there told him they had not ordered any food. Perez called the phone number on the receipt, and a male voice confirmed the order. There was laughing in the background, so Perez tried to verify the address, but the man hung up. Perez then called his supervisor, who called the number to verify the address. After getting the same treatment as Perez, the supervisor told Perez to return to the restaurant with the pizza order.
Later, Perez received a call from a male at the same number asking for the pizza. The caller, defendant, said he would have someone outside waiting for the order to arrive. Perez's supervisor authorized a delivery, and Perez drove to the address given in the call. As Perez drove up, he saw a "like a younger kid" with "dreaded" or "twisted" hair standing by the curb opposite from the delivery address. After Perez unloaded the food, he was approached by a different man; this man was carrying a shotgun. The gunman demanded money and Perez gave him $20 in one dollar bills. The gunman then demanded Perez's cell phone and Perez reluctantly gave it to him. Perez asked why they were doing this since they would only get a small amount. He then asked for his cell phone back and the gunman asked Perez if he wanted the phone back because he was planning on calling the police. Perez said, "no[,] never mind" and was then "sucker-punched" in the face by the unarmed man with the dreadlocks or twisties. The gunman asked for Perez's Bluetooth earpiece, but Perez said it fell out of his ear when he was hit. He explained it was somewhere on the ground. The robbers fled without taking the food.
Defendant and Soders returned to the apartment with $20 and no food. Lockhart asked Soders where the pizza was; Soders replied it was none of her business. Lockhart ...