Filed 8/30/13 P. v. Smith CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135139
v.
BOBBIE LEE SMITH,                                                    (Alameda County
                                                                     Super. Ct. No. H51134)
         Defendant and Appellant.


         Bobbie Lee Smith appeals from a judgment imposed after a jury found him guilty
of numerous offenses. He contends: (1) evidence that he fired through the front door of
his girlfriend‟s apartment, after telling her that he was going to “come up there right
now” and “pop her,” was insufficient to support his convictions for attempted murder,
assault with a firearm, and endangerment of her child, who was also in the apartment;
(2) defense counsel rendered ineffective assistance because he failed to object to the
prosecutor‟s purported misconduct in discussing “abiding conviction” in the context of a
reasonable doubt instruction; (3) the court improperly imposed the upper term for his
attempted murder and child endangerment convictions; and (4) the term imposed for
shooting at an inhabited dwelling should have been stayed.
         We will modify the judgment to stay the term imposed for shooting at an inhabited
dwelling (Penal Code section 654). As so modified, we will affirm the judgment.
                               I. FACTS AND PROCEDURAL HISTORY
         By information, Smith was charged with attempted murder in count one (Pen.
Code, §§ 664, 187, subd. (a)), assault with a firearm in count two (§ 245,


                                                             1
subd. (a)(2)), shooting at an inhabited dwelling in count three (§ 246), and child
abuse (endangerment) in count four (§ 273a, subd. (a)).1 As to the count one
attempted murder charge, it was alleged that Smith personally used and discharged a
firearm. (§§ 12022.5, 12022.53, subds. (b), (c), (g).) As to other counts, it was
alleged that Smith personally used a firearm. (§ 12022.5, subd. (a)). It was further
alleged that Smith had prior serious felony convictions for sentencing purposes.
(§§ 1170.12, 667, subd. (a)).
       A. Evidence at Trial
       On September 15, 2011, victim Krystal L. was at home with her eight-year-old
son in a one-bedroom condominium she rented in San Leandro. Her unit, number 203,
was located on the second floor of the condominium complex. Entry into the complex
required an access code or key. Appellant Smith knew the access code.
       The front door to Krystal L.‟s unit was equipped with a deadbolt and a lock on
the door handle. The door opened into her hallway, which ended at a closet door; the
back wall of this closet was also the back wall of the closet of the bedroom behind it.
To the right of the hallway was the kitchen and living room; to the left was a hallway
leading to the bedroom and a bathroom. Krystal L.‟s son usually lived with her, but
sometimes stayed with his father.
              1. Smith Threatens to “Pop” Krystal L. on September 15
       According to Krystal L.‟s statement to law enforcement, Krystal L. had been
dating Smith for about six months and, in conversations with him on September 15,
2011, was attempting to end their relationship. Smith became agitated.
       At 8:45 p.m. that evening, Krystal L. received a call from Smith. Because Smith
was still agitated and Krystal L. was afraid of him, Krystal L. recorded the telephone
conversation on a cassette player.2 The conversation was played for the jury at trial.


1
        Unless otherwise indicated, all statutory references are to the Penal Code.
2
        The transcript suggests that the conversation may have spanned two calls, or at
least two recordings by Krystal L., re-recorded as one by the investigating officers.
Smith‟s threat was contained in the latter portion.

                                             2
       According to the transcript of the conversation, Krystal L. told Smith “stop
calling me,” said she did not want to “be with” Smith anymore, and told him to leave
her alone and not to “come to [her] house.” Smith told Krystal L., “I‟ll pop your Bitch
ass Bitch, stop playing [with] me . . . straight up bitch, me and my niggas come up
there right now and kick your shit in Bitch, I‟ll fill that Bitch.” Krystal L. responded,
“Come on, come on over here then.” To which Smith replied, “Straight up Bitch.”
Smith continued: “I‟ll smoke that nigga, … bitch. [¶] Straight up bitch, I heard the
word bra. For real, you got me fucked up bitch. Straight up for real, straight up, you
feel me.”
              2. Smith Fires Multiple Shots Through Krystal L.’s Front Door
       Less than 45 minutes later, while Krystal L. was in the living room and her son
was asleep in the bedroom, Krystal L. heard knocking or loud banging on her front
door. According to her statement to police, Krystal L. did not go to the door, because
she thought it was Smith and feared he could harm her if she answered. Krystal L.
then heard a voice – which she immediately recognized as Smith‟s – yelling, “You‟re
doing too much. Open the door.” When she heard glass shattering, she looked into
her hallway and saw bullet holes; she then ran into the bedroom and got down on the
floor with her son.
       Krystal L. called 911 at 9:25 p.m., reporting that her “ex-boyfriend” Smith “just
shot through [her] door,” and that she knew it was Smith because she “heard him and
he just told [her] he was coming over.” A recording of Krystal L.‟s call to 911 was
played for the jury.
              3. Officers Respond to the Scene
       Alameda County Sheriff‟s Deputies Chris Mears and Phillip Corvello, among
others, responded to Krystal L.‟s apartment. They observed five bullet holes in her
apartment door, with another bullet hole in the wall next to the door. Of the bullet
holes in the door, two were near the peephole and three were lower and grouped
together. Because there were no spent cartridges at the scene, the deputies concluded
that the shooter had used a revolver. Deputy Corvello also noted that two bullets had


                                              3
entered the closet door at the end of Krystal L.‟s hallway; one of them penetrated the
back wall of the closet and entered the bedroom (where Krystal L.‟s son had been
sleeping). Both Krystal L. and her son were distraught, crying, and afraid.
       Krystal L. told Deputy Mears that she believed Smith was the shooter. She also
disclosed her cassette recording of her phone calls with Smith, which had occurred just
before the incident. Krystal L. played the recording for the deputies, explaining that
she had made it because she was afraid of Smith. Sergeant Kelly used a digital
recorder to record the tape as Krystal L. played it.
              4. Krystal L.’s Statements to Deputy Corvello on September 15
       Krystal L. told Deputy Corvello at the scene that, in the telephone conversations
with Smith, Smith had made threats about going to Krystal L.‟s house, shooting the
house, and bringing his friends to harm her. Within an hour after the call, she heard
knocking on the front door of her apartment, but she did not respond because she
believed it was Smith and feared she would be injured if she did. The knocking
increased to banging, and Smith yelled, “You‟re doing too much” and “open the door.”
Krystal L. then heard a really loud noise and glass breaking, and she saw bullet holes,
including a bullet hole in the bedroom closet.
       Krystal L. also signed a written statement prepared by Deputy Corvello to the
same effect. According to this statement, which she signed on the night of the incident,
Smith had told Krystal L. in a telephone conversation that Krystal L. was “doing too
much” and threatened that he and his “folks” were going to “come kick [her] door in
and shoot up [her] house,” or words to that effect. Krystal L. asserted that she was
afraid of Smith and believed he would shoot up her house because he was mad at her
for breaking up with him. Around 9:27 p.m., when she and her son were at home, she
heard a knock at the door. The knock turned into banging, and Smith yelled at her.
Krystal L. then heard glass breaking and saw bullet holes in the door.
       While the police were speaking with Krystal L., Smith called her two or three
times. At least two of the calls were recorded by Sergeant Kelly and played for the jury
at trial. In one call, when Krystal L. asked Smith why he shot through her door, Smith


                                              4
retorted that he was in “the east,” referring to Oakland. Phone records indicated,
however, that Smith was in San Leandro (where Krystal L. lived) when he called her at
9:21 p.m. – approximately four minutes before Krystal L.‟s call to 911 – and also while
she was on the phone with 911 around 9:27 p.m.. (These calls went to Krystal L.‟s
voicemail.)
              5. Krystal L.’s Statement to Detective Smyth on September 19
       A few days later on September 19, 2011, Krystal L. was interviewed by
Detective Patrick Smyth at the Alameda County Sheriff‟s department. At trial, the jury
was shown a video of the interview and was provided a transcript. In this interview,
Krystal L. said she was less certain that Smith was the perpetrator.
       Krystal L. told Detective Smyth that Smith lived with his family on Lawlor
Street in Oakland. She spoke with Smith the day of the shooting and over 10 times
since then, and he denied he shot through her door and was concerned about who did.
Krystal L. claimed she and Smith cared for each other and she missed him, and she was
now “confused” and no longer definite that he was outside her apartment the night of
the shooting. In addition, Krystal L. claimed that she recorded the phone call with
Smith weeks earlier, not 45 minutes before the shooting, and she felt guilty because she
was mean to Smith when she asked him for money and he did not have it.
              6. Smith’s Flight and Arrest on September 28
       On September 28, 2011, Oakland police officers Nicholas Miller and Eric Thau
drove past Smith‟s home in a marked patrol car, looking for Smith. Officer Miller
observed him on the front porch. When Miller approached and asked Smith to talk with
him, Smith retreated inside the residence, shut the door, and left the house through the back
door. When confronted in the backyard by Miller, Smith fled. Smith was later found
hiding under a porch at another house a distance away, where he was taken into custody.
              7. Smith Gets Devale Bright to Dispose of the Gun
       Police monitored Smith‟s calls while he was in jail. On September 30, 2011,
Smith asked his half brother, Devale Bright, whether Bright knew “where that little



                                             5
oowap at.” Bright answered that he “got it.” According to Deputy Corvello, “oowap”
is street slang for a firearm.
       In October 2011, Detective Smyth spoke to Bright in a videotaped interview
shown to the jury. Bright stated that Smith had instructed him to retrieve and sell a
revolver that Smith had hidden by a tree in the back yard. Bright said he sold the gun
for $250.00, and showed officers where he had retrieved it.
               8. Christie Butler Says Smith Told Her He’d Intended to Shoot Someone
       Detective Smyth testified that in November 2011 he spoke with Christie Butler,
who appeared to be Smith‟s girlfriend. Butler told the detective that in mid-September
2011 – around the time of the shooting at Krystal L.‟s apartment – Smith had told her
he was going to “pop somebody,” meaning to shoot someone.
               9. Krystal L. Recants at Trial
       Krystal L. testified that she loved Smith and they were engaged. Contrary to
what she told police, Smith had lived with her at the apartment, and he had the entry
door code and a key to her apartment. She denied she heard Smith‟s voice before the
shots were fired on September 15. Instead, she claimed, she made up the story that it
was Smith because she was angry that he was cheating with another woman. She could
not remember speaking to Smith before the shooting, recording a phone call from him,
or giving the police a recording of the call. In fact, she testified that she had never even
recorded a conversation between her and Smith.
       Krystal L. also denied sending text messages to friends that Smith had shot at
her door. Although she acknowledged that she signed her written statement, she
claimed she was not with Deputy Corvello when he wrote it and did not read it before
she signed it. When she went to the police station on September 19 to exonerate Smith,
she claimed, Detective Smyth would not listen. She called the District Attorney and
left messages, but he did not return her calls. Furthermore, Krystal L. testified, the
shooter was not Smith, because she received several threatening phone calls after he
was in jail.



                                                6
              10. Bright and Butler Recant at Trial
       At trial, Bright could not remember telling the police that he had retrieved and
sold a revolver at Smith‟s request. He explained that he has “like cerebral palsy and
stuff” and gets “like, head rushes and stuff,” and did not understand the questions the
police were asking. He also claimed that he would have told the police anything just to
get out of the interview.
       Butler testified that Krystal L. and Smith were not engaged, that she – not
Krystal L. – was Smith‟s girlfriend, and that they had been together for three years.
Although she recalled telling Detective Smyth that, around the time of the shooting,
Smith had said that he was going “to pop somebody” and was trying to find someone to
drive him there, the statement was untrue. She claimed she told the police what they
wanted to hear because there was a warrant for her arrest and they threatened to take
her daughter away.
       B. Jury Verdict and Sentence
       The jury convicted Smith on all counts as charged. The jury also found true
the allegations that Smith personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)) as to count one, and personally used a firearm (§ 12022.5,
subd. (a)) as to counts two, three, and four.3 Smith waived his right to a jury as to
the prior conviction allegation, which the court found to be true.
       In March 2012, Smith was sentenced to an aggregate term of 51 years 8 months
in state prison, comprised of the following: as to the count one attempted murder, the
upper term of nine years doubled to 18 years under section 1170.12, plus 20 years for
the enhancement under section 12022.53, subdivision (c); for the count three shooting
at an inhabited dwelling, a consecutive term of 20 months (one-third the midterm),
doubled to three years four months; for the count four child abuse or endangerment, a
consecutive term of 16 months (one-third the midterm), doubled to two years eight
months, plus 32 months (16 months doubled) for the enhancement under

3
       The court later struck the enhancement on count three, noting it was included on
the verdict form in error.

                                              7
section 12022.5, subdivision (a); plus five years as an enhancement for a prior
conviction within the meaning of section 667, subdivision (a)(1). In addition, on the
count two assault with a firearm, the court imposed and stayed the upper term of four
years doubled to eight years, plus four years for the enhancement under
section 12022.5, subdivision (a).
       This appeal followed.
                                     II. DISCUSSION
       We address Smith‟s contentions in turn.
       A. Attempted Murder
       Smith contends his attempted murder conviction must be reversed on the
ground that there was insufficient evidence of his intent to kill, since there was no
evidence he knew Krystal L. was home when he shot repeatedly through her front
door after threatening to “pop” her. We disagree.
              1. Law
       Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing. (People v. Smith
(2005) 37 Cal.4th 733, 739.) Intent to kill may exist if there is a deliberate intention to
take the victim‟s life, which may be shown by establishing either that the defendant
desired the result or that he knew to a substantial certainty it would occur. (Ibid.)
Because there is rarely direct evidence of the defendant‟s intent, it may be inferred
from the defendant‟s acts and the circumstances of the crime. (Id. at p. 741.)
       We review for substantial evidence. In this regard, we “[v]iew[ ] the evidence
in the light most favorable to the guilty verdict secured by the prosecution, . . . [and]
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” (People v. Cervantes (2001) 26 Cal.4th
860, 866; see also People v. Staten (2000) 24 Cal.4th 434, 460.)
       In this case, the question is whether there is substantial evidence from which
the jury could have reasonably inferred that Smith intended to kill Krystal L. when he
fired multiple shots through her front door.


                                               8

                                         7
               2. Application
        Although Smith contends there was no evidence that he knew Krystal L. was
inside her apartment, there was, in fact, ample evidence from which the jury could
have inferred that Smith believed Krystal L. was in the apartment – and more
specifically behind her front door – when he repeatedly fired his gun.
        In the phone conversation around 8:45 p.m. on the night of the shooting, Smith
sounded agitated and threatened Krystal L. that he was going to “come up there” and
“pop” her – which is understood to mean he was going to shoot her. Less than 45
minutes later, he arrived at her condominium complex, gained access to her building,
and reached the front door of her second-floor apartment, bringing with him a loaded
firearm. He banged loudly on Krystal L.‟s front door and told her to open it. He then
fired six shots – two under the peephole, three lower on the door, and one through an
adjacent wall. As Krystal L. told the 911 operator, she knew it was Smith because “I
heard him and he just told me he was coming over.”4
        One reasonable inference from this evidence is that Smith went to Krystal L.‟s
apartment with an intent to kill her, believed she was there as he was banging on the door
and telling her to open it, and after summoning her to the door fired multiple times
through the door because he believed she was on the other side, thus acting on his intent
to kill her.



4
        Respondent asserts that Krystal L. had locked her apartment door with a keyed
lock from the inside, which would indicate to Smith that she was home. Respondent‟s
citation to the record, however, points only to her testimony that the door had a bolt
lock and a “regular” lock at the bottom – it said nothing about the door being locked
with a key from the inside at the time of the shooting, let alone that Smith knew about
it. Krystal L. did tell the 911 operator that she was “locked in” her house at the time of
the 911 call, but we are not pointed to any evidence that Smith knew she had locked
herself in when he fired his weapon. At another point in Krystal L.‟s testimony, she
stated that when she would leave her apartment, she would lock the bottom lock from
the inside, close the door, and then lock the top bolt with a key from the outside.
Whether the door was locked from the inside when Smith fired his shots is not critical
to our determination of substantial evidence.

                                             9
       In People v. Felix (2009) 172 Cal.App.4th 1618 (Felix) – on which both parties
rely – the defendant threatened to kill the intended victim, then armed himself with a
firearm, drove to the intended victim‟s house, and parked outside what the defendant
knew to be the master bedroom. From close range and with the glow of the television
“visible,” the defendant fired two gunshots into the master bedroom window. (Id. at
pp. 1625-1626.) After fleeing, the defendant called and asked if he had harmed anyone.
(Id. at p. 1626.) The court of appeal concluded not only that this evidence was
sufficient to support a finding of specific intent to kill the victim, but that “the
reasonableness of the jury‟s finding that intent to kill was present is beyond dispute.”
(Ibid., italics added.)
       Here too, Smith threatened to kill Krystal L., armed himself with a firearm, went
to the victim‟s house, and stationed himself outside what he knew to be the victim‟s
front door; after knocking and banging on the door and telling her to open it, he fired
six gunshots into the home, including five through the door (two of which were just
below the peep hole) to which he called her, and one through the wall towards the
living room. And after fleeing the scene, he called the victim. As in Felix, substantial
evidence supports the conclusion that Smith intended to kill.
       Smith urges that the decision in Felix is distinguishable, and even supports his
argument that the evidence of his intent was insufficient, because the court in Felix noted
that a “glow” from the television was “visible,” while there was no evidence that Smith
could see a glow from Krystal L.‟s television, a light in her window, or other indication
Krystal L. was home.
       Smith‟s argument is not persuasive. Although Felix did note that the “glow” from
the television was “visible,” Felix did not hold that an intent to kill could not have been
found without that circumstance.5 The point in Felix was simply that there was evidence


5
       Indeed, the visibility of the television‟s glow in Felix appears to be an
inference drawn from the victim‟s testimony that he had turned on the television
and there were windows (one of which was blocked by a dresser) in the bedroom.
(Felix, supra, 172 Cal.App.4th at p. 1623.) Here too, Krystal L. testified that she

                                              10
from which a jury could reasonably infer that the defendant harbored an intent to kill
when he fired into the bedroom; in this case there was also ample evidence, albeit
different evidence, from which a jury could reasonably infer that Smith intended to kill
Krystal L. when he fired through her front door.
       Smith also argues that, although his threat to “pop” Krystal L. may have shown an
intent to kill, there was no evidence that he believed he could achieve that objective by
shooting through her door, since their last conversation was 45 minutes earlier, they used
cell phones (so she was not necessarily at home), and Krystal L. did not respond when he
banged on her door. Smith urges that he had reason to believe Krystal L. had fled.
       By this argument, Smith merely contends that the jury should have reached a
different inference from the evidence. On appeal, we do not reweigh the evidence, but
determine whether there was substantial evidence to support the inference the jury did
make. (Felix, supra, 172 Cal.App.4th 1626.) Smith fails to establish error.
       B. Assault With a Firearm
       Smith next contends there was insufficient evidence to support his conviction
for assault with a firearm, again because, in his view, there was no evidence that he
knew Krystal L. was inside her apartment when he fired five shots through the door
and one through an adjacent wall. Again, we must disagree.
              1. Law
      A conviction for assault with a firearm (§ 245, subd. (a)(2)) requires proof of the
crime of assault, plus proof that it was accomplished by the use of a firearm. An assault


was watching television in the living room, with the volume so loud that she could
not hear what Smith said, and that she did not even hear the gunshots. Krystal L.
also claimed at trial that she did not respond to the banging on the door because
neighbors sometimes complained about Krystal L.‟s dog, suggesting that noises
from her apartment could be heard outside her apartment. A reasonable inference
is that the sound of Krystal L.‟s television was audible to Smith, just as the glow of
a television was visible to the defendant in Felix. (While there was no direct
evidence that Smith heard Krystal L.‟s television, Felix did not mention any direct
evidence that the defendant had noted the glow.) We need not rely on this
inference in concluding that substantial evidence supports the verdict here.

                                            11
is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the
person of another.” (§ 240.) Assault requires only an intentional act and “actual
knowledge of those facts sufficient to establish that the act by its nature will probably and
directly result in the application of physical force against another.” (People v. Williams
(2001) 26 Cal.4th 779, 790.) Furthermore, a defendant may be guilty of assault even if
he believed the act was not going to result in the infliction of force on another, if “a
reasonable person, viewing the facts known to defendant, would find that the act would
directly, naturally and probably result in a battery.” (Id. at p. 788, fn. 3.)
       The question, therefore, is whether there is substantial evidence to support an
inference that Smith knew facts that would lead a reasonable person to believe firing
through Krystal L.‟s door would probably and directly result in physical force against
her.
              2. Application
       Substantial evidence supported Smith‟s conviction. He threatened Krystal L. on
the phone and told her he was going to “come up there” to “pop” her, to which she
replied “come over here then.” (Italics added.) He proceeded up to Krystal L.‟s second
floor apartment, where he knew she lived, and knocked or banged on the door and told
her to open it, indicating his belief that she was there despite her silence. Then he fired
twice through the front door below the peep hole, where the bullets could strike an adult
who had come to the door in response; he fired additional rounds through the door, all of
which could have penetrated the closet wall and struck someone in the bedroom or
hallway; and he fired through an adjacent wall, towards the living room. (See Felix,
supra, 172 Cal.App.4th at pp. 1623, 1627-1629 [assault with a firearm upon victim‟s
children sustained where defendant knew it was highly likely the children were in the
house based on facts known to him, including familiarity with house and time of attack].)
       Smith‟s reliance on People v. Navarro (2013) 212 Cal.App.4th 1336, is misplaced.
There, the defendant was convicted of assault with a semiautomatic firearm after he
argued with his wife, went to his car, retrieved a loaded gun, and fired a bullet at a door
through which she had just walked. (Id. at pp. 1342, 1345.) The court found the


                                              12
evidence sufficient to support the conviction, concluding that the defendant had all the
facts necessary to lead a reasonable person to understand that a battery would directly,
naturally, and probably result. (Id. at pp. 1345, 1347.) Smith points out that in this case,
he did not see Krystal L. walk through the front door of her apartment. But Navarro
merely held that seeing the victim walk through the door was sufficient evidence, not that
it was required evidence. Just as the facts known to the defendant in Navarro supported
the conclusion that a battery was the direct and probable result of his actions, the facts
known to Smith in this case were sufficient as well.
       C. Child Endangerment
       Smith next contends that his conviction for child endangerment (§ 273a, subd. (a))
must be reversed because there was no evidence that he knew the child – Krystal L.‟s son
– was in the apartment. He is incorrect.
              1. Law
       Section 273a, subdivision (a) authorizes criminal punishment for: “Any person
who, under circumstances or conditions likely to produce great bodily harm or death,
willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical
pain or mental suffering, or having the care or custody of any child, willfully causes or
permits the person or health of that child to be injured, or willfully causes or permits that
child to be placed in a situation where his or her person or health is endangered.”
       A defendant is guilty of violating section 273a, subdivision (a) if his conduct is
willful and is committed under circumstances or conditions likely to produce great bodily
harm or death. (People v. Sargent (1999) 19 Cal.4th 1206, 1216 [direct infliction of
abuse].) Where, as Smith asserts here, the harm to the child is inflicted indirectly, the
required mental state is criminal negligence. (People v. Valdez (2002) 27 Cal.4th 778,
788-789.) Criminal negligence is aggravated, culpable, gross or reckless conduct that is
such a departure from that of the ordinarily prudent or careful person under the
circumstances as to be incompatible with a proper regard for human life. (Id. at p. 783.)
A defendant may be criminally negligent if a reasonable person in his or her position
would have been aware of the risk. (Ibid.)


                                              13
       The question here, therefore, is whether there was substantial evidence to support
the conclusion that a reasonable person in Smith‟s position would have been aware of a
risk of great bodily harm or death to Krystal L.‟s son when he fired his gun into Krystal
L.‟s home.
              2. Application
       Substantial evidence supports Smith‟s conviction. Smith willfully fired multiple
times into Krystal L.‟s apartment. Since he had been dating Krystal L. for six months,
and they had known each other for two years, a rational inference is that he fired those
shots knowing that Krystal L.‟s son usually lived with Krystal L. in that apartment.
Indeed, during the school week, her son stayed with Krystal L. “most of the time.”
Furthermore, Smith‟s attack came in the evening hours when the eight-year-old would
likely be at home, and Smith fired not just around the door‟s peep hole, but lower as well.
And given Smith‟s relationship with Krystal L. and his familiarity with where she lived,
it would be reasonable to conclude that he knew the sole bedroom in Krystal L.‟s abode
was behind the closet, in the path of the bullets he was firing through the door.
       Smith argues that the evidence was insufficient because there was no evidence he
knew Krystal L. was home, and “a fortiori he did not know that [Krystal L.‟s son] was
home.” This argument fails because, as stated ante, there was indeed sufficient evidence
to support the conclusion that Krystal L. was home. Smith also points to Krystal L.‟s
claim at trial that her son sometimes stayed with others. But it is not our role to reweigh
the evidence or to assess the credibility determinations of the jury. Our task is to
determine whether there is substantial evidence to support the verdict; for the reasons
stated, there was.
       D. Ineffective Assistance/Prosecutorial Misconduct
       Smith contends his defense counsel did not provide effective assistance of
counsel because he did not object to the prosecutor‟s argument that an “abiding
conviction,” in the context of a reasonable doubt instruction, was something the jurors
must have “right there and then” when they are deliberating “today, tomorrow, this
week.” Smith urges that the prosecutor‟s argument constituted prosecutorial


                                             14
misconduct because it “trivialized and diluted the reasonable doubt standard as a
transitory feeling a juror has during the course of deliberations, without regard for how
he or she will feel about the decision in the future,” and thus lessened the prosecution‟s
burden of proof. (See People v. Williams (2009) 170 Cal.App.4th 587, 635 [improper
for prosecutor to misstate the law or attempt to lower burden of proof].)
              1. Prosecutor’s Statement
       For context, we begin with what defense counsel told the jury. In closing
argument, counsel observed that, according to the jury instructions, “proof beyond a
reasonable doubt has to be an abiding conviction.” Counsel then purported to define an
abiding conviction as follows: “That‟s a word that I don‟t use every day, but it‟s
something that you look over to the prosecution and say, prove it to me. This person
that you‟re saying did this, my significant other, my mother, my friend, my roommate,
whatever, I know them to be innocent, now you prove it to me. So I have an abiding
conviction that when I wake up tomorrow, a year from now, ten years from now, twenty
years from now and I become more educated about the system or not, that my
conviction is abiding enough that I know I made the right decision. [¶] Those are
strong languages [sic] that‟s in the instruction that you need to follow. It‟s the highest
standard there is. It‟s the highest standard there is.” (Italics added.)
       On rebuttal, the prosecutor responded to defense counsel‟s statement about
“abiding conviction” as follows: “Because hundreds of jurors, hundreds of jurors, some
of you, yourself, hundreds of jurors, have been using this standard for a couple hundred
years. Thousands, hundreds of thousands of jurors have sat where you sit and have been
asked to look at what reasonable doubt is. Look at innocence and guilt. Look at all the
law and interpret that for yourselves. [¶] Now, when we talk about an abiding
conviction, nowhere in the law does it say an abiding conviction is something where you
reflect upon what you did ten years from now or five years from now. What an abiding
conviction is is when you’re back there deliberating, that’s your abiding conviction, right
there and then. We’re not asking about tomorrow. We’re not asking about once you get



                                              15
older, once you have more life experience. [¶] No, no. There, today, tomorrow, this
week, the way you feel, the way you deliberate.” (Italics added.)
       Because defense counsel did not object to this argument at the trial, we consider
whether the argument constituted prosecutorial misconduct in the context of whether
counsel‟s failure to object constituted ineffective assistance.
              2. Ineffective Assistance Claim
       To establish ineffective assistance of counsel, Smith must demonstrate both that
his counsel‟s performance was deficient and that Smith suffered prejudice as a result.
(Strickland v. Washington (1984) 466 U.S. 668, 687- 688, 691-692.)
                     a. performance
       Smith argues that his defense attorney should have objected to the prosecutor‟s
statement concerning an “abiding conviction,” because the prosecutor was wrong when
he said that an “abiding conviction” is “when you‟re back there deliberating.” To the
contrary, Smith urges, an “abiding conviction” in this context means that the juror‟s
belief in the truth of the charge must be “both long lasting and deeply felt” or of a
“lasting, permanent nature.” (People v. Light (1996) 44 Cal.App.4th 879, 885; People v.
Brigham (1979) 25 Cal.3d 283, 290-291.) The word “abiding” indicates “how strongly
and how deeply [the juror‟s] conviction must be held.” (Brigham, supra, at pp. 290-291.)
It means that the belief is “settled and fixed, a conviction which may follow a careful
examination and comparison of the whole evidence.” (Hopt v. Utah (1887) 120 U.S.
430, 439; Victor v. Nebraska (1994) 511 U.S. 1, 14-15.)
       In our view, the prosecutor‟s statement was not clear, and was therefore not
clearly misconduct. Perhaps his statement could be interpreted to mean, as Smith now
suggests, that an abiding conviction must merely be something you feel or believe at the
moment, and it therefore does not have to be long-lasting or permanent. On the other
hand, the prosecutor‟s statement could also be interpreted to mean, as respondent
essentially asserts, that jurors should not speculate about what they might think years
from now after having different life experiences, but must focus instead on what they
believe at the time they are deliberating in the jury room. This is the better interpretation


                                             16
in light of the defense arguments to which the prosecutor was responding; and certainly
the prosecutor never argued that the jury‟s belief did not have to be strongly or deeply
held, or that the jury did not have to carefully analyze the evidence. Because of the vague
and fleeting nature of the prosecutor‟s comment, we see no possibility that it rendered the
trial fundamentally unfair, or any reasonable likelihood that the jury would understand the
statement in a way that would lead it to convict Smith using a standard lower than proof
beyond a reasonable doubt. For that reason, we question whether it was incompetent for
defense counsel not to object; moreover, as we discuss next, the failure to object was not
prejudicial.
                     b. prejudice
       To demonstrate prejudice, it is Smith‟s burden to show “there is a reasonable
probability that, but for counsel‟s unprofessional errors, the result of the proceeding
would have been different.” (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) A
reasonable probability in this context is “a probability sufficient to undermine confidence
in the outcome.” (Id. at p. 218.)
       Smith fails to establish prejudice. The trial court provided the jury with the
standard reasonable doubt instruction in CALCRIM No. 220, which reads in part:
“A defendant in a criminal case is presumed to be innocent. This presumption requires
that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you
the People must prove something, I mean they must prove it beyond a reasonable doubt.
[¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction
that the charge is true. The evidence need not eliminate all possible doubt because
everything in life is open to some possible or imaginary doubt.” The jury was further
directed to rely on the court‟s instructions. (CALCRIM No. 200.) During their
deliberations, the jurors also had written copies of CALCRIM No. 220 (reasonable
doubt), CALCRIM No. 222 (evidence), CALCRIM No. 223 (direct and circumstantial
evidence), and CALCRIM No. 224 (circumstantial evidence: sufficiency of evidence). It
is well-established that “[j]urors are presumed to understand and follow the court‟s
instructions.” (People v. Holt (1997) 15 Cal.4th 619, 662.)


                                             17
       In this case – where the prosecutor‟s statements were fleeting, susceptible to
different interpretations (including one that is not erroneous), and counterpointed by the
defense counsel‟s definition of “abiding conviction” – the jury instructions sufficiently
minimized any prejudicial effect from the prosecutor‟s statement. Smith has not
established that counsel‟s failure to object was prejudicial. (See People v. Nguyen (1995)
40 Cal.App.4th 28, 36-37 [failure to object to prosecutor‟s remark trivializing reasonable
doubt standard was not prejudicial, where prosecutor also directed the jury to read the
instruction and the jury was correctly instructed].)
       E. Factors in Imposing the Upper Term Sentence for Attempted Murder
       Smith seeks a remand for resentencing, on the ground that the court relied on
improper aggravating factors in imposing the upper term on his count one attempted
murder conviction, and his trial attorney did not object. His argument has no merit.
              1. Probation Report
       The probation officer‟s report and sentencing recommendation set forth eight
factors in aggravation: (1) the crime involved the threat of great bodily harm and acts
disclosing a high degree of viciousness, in that Smith fired into Krystal L.‟s apartment
numerous times and her son was inside (Cal. Rules of Court, rule 4.421(a)(1)); (2) Smith
was armed with a weapon at the time of the commission of the crime (rule 4.421(a)(2));
(3) the victims were vulnerable and unarmed (rule 4.421(a)(3)); (4) the manner in which
the crime was carried out indicated planning, sophistication, or professionalism
(rule 4.421(a)(8)); (5) Smith engaged in violent conduct which indicates a serious danger
to society, and Smith has a prior conviction for robbery (rule 4.421(b)(1)); (6) Smith‟s
prior convictions as an adult and sustained petitions in juvenile delinquency proceedings
are numerous and of increasing seriousness (rule 4.421(b)(2)); (7) Smith was on
probation when the instant crimes were committed (rule 4.421(b)(4)); and (8) Smith‟s
prior performance on probation was unsatisfactory (rule 4.421(b)(5)).
       In addition, the probation report noted, Smith “has been involved with the
criminal justice system since he was a juvenile and at the time of the present offense he
was on three felony probation grants as an adult,” and he has demonstrated that he is a


                                             18
“danger to society and that he has not changed his ways after being placed on felony
probation.”
              2. Sentencing Hearing
       At the sentencing hearing, the court expressed its view of the seriousness of
Smith‟s crime(s), his criminal record, and the danger he posed to the community. The
court stated: “[T]he crime that [Smith] committed was a very, very serious crime, a very,
very dangerous crime. The fact that Miss Krystal L. didn‟t get killed and the fact that the
young child inside the house didn‟t get killed is just a matter of fortuity and the path that
the bullets took that night. And that‟s really all that that prevented them from being
killed. Nothing else. [¶] So the facts of the case are not good at all.” The court
continued: “[Smith] has a record that is not good either. . . . [A]t his young age, he has a
robbery conviction, he has a 236, which is a human trafficking conviction, he has a 12021
gun conviction, and a number of juvenile findings.” The court concluded: “So the idea
that he presents a clear danger to the community is, one, I think, certainly has a
substantial amount of weight behind it. [¶] I looked at his prior convictions. I looked at
some of the facts surrounding them. And they‟re not good. And the facts of this case are
not good.”
       In imposing the upper term for attempted murder, the court then stated: “The
Court has selected that term in light of, among others, the following facts. That the
crime committed in this case was a particularly callous and violent one, and that the
defendant was armed during the commission of the crime, also facts relating to the
other facts and circumstances in terms of the endangering of the victim and the
potential danger to the victim and the other child in the house – or the child, the young
child in the house. So the court has selected the aggravated term of nine years.”
(Italics added.)
              3. Law
       The selection of the term of sentence rests with the discretion of the trial court.
(§ 1170, subd. (b).) The court may consider circumstances in aggravation or mitigation
and any other factor reasonably related to the sentencing decision. (Cal. Rules of Court,


                                              19
rule 4.420(b).) Factors in aggravation include the defendant‟s violent conduct that
indicates he or she poses a serious danger to society, numerous prior convictions as an
adult or sustained petitions in juvenile delinquency proceedings, and prior prison terms.
(Rule 4.421(b).) Moreover, an aggravating circumstance is not limited to the factors
listed in the California Rules of Court, but may simply be a circumstance that makes the
offense “ „distinctively worse than the ordinary‟ ” and renders the defendant “deserving
of punishment more severe than that merited for other offenders in the same category.”
(People v. Black (2007) 41 Cal.4th 799, 817 (Black).) Nonetheless, the court cannot use
the same fact both to aggravate the base term and to impose an enhancement, or use a fact
constituting an element of the offense to aggravate or enhance a sentence. (People v.
Scott (1994) 9 Cal.4th 331, 350; § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c), (d);
People v. Moberly (2009) 176 Cal.App.4th 1191, 1197.)
       Because one factor in aggravation suffices for imposition of the upper term, no
remand is required if there is at least one valid factor supporting it. (Black, supra, 41
Cal.4th at p. 813; People v. Forster (1994) 29 Cal.App.4th 1746, 1759.)
              4. Smith’s Forfeiture or Waiver
       Because defense counsel did not object to the imposition of the upper term based
on the facts stated by the court, the issue is forfeited. (People v. DeSoto (1997) 54
Cal.App.4th 1, 7-8.) We nonetheless turn to the merits of his argument in light of his
claim that his counsel‟s failure to object constituted ineffective assistance of counsel.
              5. Sufficiency of the Factors Cited By the Court
       Smith contends the court‟s concern that “the crime committed in this case was a
particularly callous and violent one” was insufficient to support the imposition of the
upper term, because any attempted murder involving discharge of a gun is inherently
violent and callous. In addition, Smith urges, the court‟s observation that he was armed
with a gun is insufficient because that fact was used to support an enhancement under
section 12022.53, subdivision (c), and the court‟s remark concerning the endangerment of
Krystal L.‟s son was insufficient because it too was based on his firearm use.



                                             20
       Smith‟s argument is unconvincing. Although the fact that Smith discharged a
firearm in his attempt to murder Krystal L. cannot be used to support an upper term
because that fact was used to enhance his sentence under section 12022.53, subdivision
(c), the court can rely on the separate fact that Smith did not merely fire once through
Krystal L.‟s door – which would be sufficient for application of the enhancement – but
fired multiple times, thereby increasing the violence and danger to human life and
property in a manner beyond what would be required for imposition of the enhancement.
       Similarly, Smith‟s crime could reasonably be considered to be unusually serious
because he fired multiple times blindly through the door of Krystal L.‟s home. While the
jury necessarily determined that Smith believed Krystal L. was at home and there was a
risk of harm to Krystal L.‟s son in convicting Smith of the charged offenses, Smith could
well have injured anyone else who happened to be in the residence, too. In short, there
were facts concerning Smith‟s crime that transcended what would be necessary to
constitute an attempted murder with a firearm, and which made Smith deserving of
greater punishment than other perpetrators of the same offense. (Black, supra, 41 Cal.4th
at p. 817.)
       Moreover, the court at the sentencing hearing also expressly mentioned Smith‟s
criminal history (and, indeed, the minute order discloses that the imposition of the upper
term was based in part on Smith‟s prior convictions). Smith‟s criminal past included four
juvenile dispositions, an adult conviction for felony robbery in 2008, an adult conviction
for felony human trafficking in 2009, and an adult conviction for felony possession of a
firearm by a felon in 2010. Although the court used the robbery conviction to double
Smith‟s term under the Three Strikes law (and as a prior serious felony to add to his
sentence under section 667, subdivision (a)), a conclusion of recidivism, numerous
convictions and juvenile dispositions of increasing severity, and several failed stints on
probation is readily drawn from the rest of Smith‟s criminal history, and from his
criminal history as a whole.
       The court‟s imposition of the upper term was supported by the record.



                                             21
       F. Facts in Imposing the Upper Term Sentence for Assault With a Firearm
       On the count two assault with a firearm under section 245, subdivision (a)(2), the
court sentenced Smith to the upper term of four years (doubled for the prior conviction),
plus four years for the personal use of a firearm enhancement under section 12022.5,
subdivision (a), and then stayed the sentence pursuant to section 654. (See § 12022.5,
subd. (d).) In imposing the upper term, the court stated: “Again, for the record, the Court
selects that upper term given what the Court perceives to be a callous and violent nature
of the crime due to the fact that defendant was armed during this commission.” (Italics
added.)
       Smith contends the court erred in imposing the upper term on the ground that the
crime was callous and violent due to the fact Smith was armed, because arming is an
element of the offense of assault with a firearm. (Smith forfeited this argument by failing
to object in the trial court; nevertheless, we consider it in light of his further contention
that counsel‟s failure to object constituted ineffective assistance.)
       We find no error, and thus no prejudice in counsel‟s failure to object. In context,
the court‟s reference to Smith being “armed” reflected not the mere fact that Smith had or
used a firearm, but the manner in which he used it and his reason for using it: namely,
Smith fired his gun multiple times, shooting at particular angles and directions towards
the door from outside the apartment in the building hallway, as his chosen response to the
relatively minor event of an argument with his girlfriend. These additional circumstances
supported the imposition of the upper term.
       At any rate, even if the court had improperly engaged in the dual use of a fact to
support the upper term sentence, reversal would not be required because there is no
reasonable probability Smith would receive a lesser sentence upon remand (People v.
Avalos (1984) 37 Cal.3d 216, 233) and no prejudice arose from counsel‟s failure to
object. As noted ante, the probation report lists multiple additional aggravating
circumstances that would independently support the upper term, including Smith‟s past
criminal history that the court expressly noted at the sentencing hearing.



                                              22
       Smith argues that the facts that he was only 21 years old, was raised in foster care,
and had never served a prison term, make it possible that the court would not have chosen
the upper term if it had not relied on the fact that Smith was armed. The record, however,
overwhelmingly suggests the contrary: the court noted Smith‟s youth but concluded that
his past record and the circumstances of the crime nonetheless warranted the upper term.
       G. Failure to Stay Sentence on Count Three (Shooting at Inhabited Dwelling)
       Smith contends his sentence for shooting into an inhabited dwelling (§ 246) should
have been stayed because the conduct underlying that crime was the same as the conduct
underlying his conviction for attempted murder, and the two crimes were committed as
part of an indivisible course of conduct. We agree.
       Section 654, subdivision (a) provides in part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.”
       Section 654 precludes multiple punishments for a single act and for an indivisible
course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) “ „Whether a course
of criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor.‟ ” (People v.
Norrell (1996) 13 Cal.4th 1, 6.) Thus, section 654 precludes multiple punishment where
multiple offenses were committed incident to a single intent and objective. (People v.
Gaio (2000) 81 Cal.App.4th 919, 935.) On the other hand, “ „[I]f the evidence discloses
that a defendant entertained multiple criminal objectives which were independent of and
not merely incidental to each other, the trial court may impose punishment for
independent violations committed in pursuit of each objective even though the violations
shared common acts or were parts of an otherwise indivisible course of conduct.‟
[Citations.]” (People v. Nubla (1999) 74 Cal.App.4th 719, 730.)
       Whether there was more than one independent criminal objective is a matter we
review for substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.)
Although Smith‟s counsel did not object in the trial court, the purported error would


                                             23
constitute an unauthorized sentence and is therefore not subject to waiver. (People v. Le
(2006) 136 Cal.App.4th 925, 931.)
       Smith argues that, according to the prosecution, his intent when firing through the
front door of Krystal L.‟s apartment was to kill her. Thus, the same conduct and the same
objective supported both his conviction for attempted murder, and his conviction for
shooting at an inhabited dwelling. He therefore cannot be punished for both.
       Respondent‟s only argument to the contrary is that, essentially, Smith had two
successive objectives when he fired through Krystal L.‟s front door: when he first shot
through her door, his objective and intent was to kill Krystal L.; when he fired additional
shots, his objective and intent was to willfully and maliciously shoot at her dwelling.
Respondent explains that, although Smith could have stopped firing after his first shot, he
continued to shoot five more times, and because he was using a revolver, he had time to
reconsider his actions between each of his shots, some of which targeted different
locations. Respondent argues that, where the offenses are “„separated by periods of time
during which reflection was possible,‟ ” section 654 does not prohibit multiple
punishment. (People v. Surdi (1995) 35 Cal.App.4th 685, 689 (Surdi); see People v.
Trotter (1992) 7 Cal.App.4th 363, 368 (Trotter).) Furthermore, respondent argues, a
person who fires a revolver six times into an apartment can reasonably be considered
more culpable than a person who fires only once; therefore, to effectuate section 654‟s
purpose to make punishment commensurate with criminal liability, Smith should be
punished for both convictions since he could have walked away after one shot but chose
to willfully and maliciously continue to fire blindly into the residence. (See Trotter,
supra, 7 Cal.App.4th at pp. 367-368.)
       As Smith points out, however, the court in Surdi stated that the stabbing episodes
at issue in that case were “separated by considerable periods of time during which
reflection was possible,” as well as “a break in the action.” (Surdi, supra, 35 Cal.App.4th
at p. 689, italics added; cf. Trotter, supra, 7 Cal.App.4th at p. 366 [defendant could be
punished for each of three shots at a police car, where the second shot came a minute
after the first, and the third shot came moments after the second, because each shot


                                             24
required a separate trigger pull, all three shots were volitional and calculated, and the
shots were “separated by periods of time during which reflection was possible”].) Smith
urges that there was no evidence that his shots were separated by a considerable period of
time for reflection.
       We agree with Smith on this point. Substantial evidence did not support the
conclusion that Smith harbored an objective when he fired the first shot or shots through
Krystal L.‟s door that was different from his objective when he fired the remaining shots
through Krystal L.‟s door. There was no testimony that the shots were fired at
significantly different times or with any appreciable time gap in between. Nor was there
evidence that Smith possessed an intent to shoot at Krystal L.‟s apartment except for the
purpose of striking her.6 To the contrary, the evidence was that he threatened to kill
Krystal L., and carried out that intent by bringing a firearm to her apartment and shooting
at her door and adjacent wall after calling out to her. Indeed, the prosecutor did not argue
at trial that some of the shots were attributable to his objective of killing Krystal L. and
some were for the purpose of simply shooting her home. And while Smith‟s decision to
fire multiple times into Krystal L.‟s apartment did increase his culpability, that increase
in culpability is accounted for by the imposition of the upper term on counts one and two.
The sentence on count three for shooting at an inhabited dwelling should have been
stayed.
                                     III. DISPOSITION
       The judgment is modified such that the sentence of three years four months for
violation of Penal Code section 246 is stayed pursuant to Penal Code section 654. As so
modified, the judgment is affirmed.




6
        According to Deputy Corvello, Krystal L. said that Smith‟s threats included a
threat about “shooting the house.” However, the transcript of Smith‟s conversation with
Krystal L. does not mention an intent to shoot her house, but to “pop [her] Bitch ass,” to
“kick [her] shit in,” and to “smoke that nigga . . . bitch.”

                                              25
                NEEDHAM, J.




We concur.




JONES, P. J.




BRUINIERS, J.




                 26
