Filed 3/28/13 P. v. Uribe CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A131997
v.
RODOLFO RIVERA URIBE,                                                    (Napa County
                                                                          Super. Ct. No. CR146945)
         Defendant and Appellant.


         Following a jury trial, defendant Rodolfo Rivera Uribe was convicted of first
degree murder, shooting at an occupied motor vehicle, and various offenses for unlawful
possession of a firearm. On appeal, he contends that he received ineffective assistance of
counsel because his trial counsel failed to request a pinpoint instruction concerning the
effect of a mental disorder on his ability to form the specific mental states required for the
murder charge and the special circumstance of lying in wait. He also claims that
concurrent sentences imposed for two of the three offenses for unlawful firearm
possession should have been stayed under Penal Code section 654.1 We shall modify the
judgment to stay the sentence on two of the three firearm possession offenses but
otherwise affirm.




1
         All further statutory references are to the Penal Code unless otherwise specified.


                                                             1
                       FACTUAL AND PROCEDURAL BACKGROUND
                                    Procedural History
       Early in the morning on June 29, 2009, Uribe shot and killed Luis Octavio Carrillo
with an assault rifle as Carrillo was sitting in a vehicle outside his residence with Uribe’s
former girlfriend. The Napa County District Attorney filed a seven-count amended
information charging Uribe with murder (§ 187, subd. (a); count 1), shooting at an
occupied motor vehicle (§ 246; count 2), kidnapping (§ 207, subd. (a); count 3), corporal
injury to a spouse or cohabitant with a prior (§ 273.5, subds. (a) & (e); count 4),
possession of a firearm by a felon (former § 12021, subd. (a)(1); count 5), possession of a
firearm by a misdemeanant (former § 12021, subd. (c)(1); count 6), and possession of an
assault weapon (former § 12280, subd. (b); count 7).2 The district attorney further
alleged as to the murder count that Uribe killed the victim while lying in wait (§ 190.2,
subd. (a)(15)), and that he intentionally discharged a firearm at an occupied motor vehicle
(§ 12022.5, subd. (b)(1)). It was also alleged as to the first two counts that Uribe
personally discharged a firearm causing great bodily injury or death. (§ 12022.53, subd.
(d).) As to the kidnapping charge in count three, it was alleged that Uribe personally
discharged a firearm. (§ 12022.53, subd. (c).)
       At trial, Uribe did not dispute that he killed Carrillo but claimed he was not
thinking straight at the time because he was under the influence of alcohol and cocaine.
His counsel urged a manslaughter verdict, arguing that Uribe lacked the ability to
premeditate and deliberate due to his intoxication and mental disorders that made him act
impulsively.
       The jury found Uribe guilty of first degree murder, shooting at an occupied motor
vehicle, and the three charged firearm possession offenses. He was acquitted of the

2
       Effective January 1, 2012, the statutes defining the firearm possession offenses
charged against Uribe were repealed and reenacted without substantive change, but with
different statutory designations, as follows: former section 12021, subdivision (a)(1) was
reenacted as section 29800, subdivision (a)(1); former section 12021, subdivision (c)(1)
was reenacted as section 29805; and former section 12280, subdivision (b) was reenacted
as section 30605. (See Stats. 2010, ch. 711, §§ 4, 6, 6.76.)


                                              2
charges for kidnapping and corporal injury on a cohabitant as well as lesser included
offenses of those charges. The jury found the lying-in-wait special circumstance and the
firearm use allegations to be true as to the offenses of which Uribe was convicted.
       The trial court sentenced Uribe to an indeterminate life term without the
possibility of parole for the murder conviction, plus a term of 25 years to life for the
associated firearm use enhancement pursuant to section 12022.53, subdivision (d). The
court stayed the remaining firearm use enhancements as well as the sentence associated
with the conviction for shooting at an occupied motor vehicle. The court imposed two-
year concurrent terms for each of the three firearm possession offenses of which Uribe
was convicted.

                                 Relationship with Jane Doe
       Uribe’s longtime girlfriend, Jane Doe, testified that she started dating him when
they were both teenagers. Doe was already pregnant when they started dating, although
Uribe raised the child as his own. Uribe and Doe moved in together and had another
child. The relationship was tumultuous and led to incidents of domestic violence.
       Doe ended her relationship with Uribe and moved out of their house on
February 14, 2009. She told police officers that Uribe had a hard time with the break up
and that he told her he did not want to see her with anyone else, going so far as to say he
would kill her and any guy she was with. In late March 2009, Doe started dating the
victim, Luis Octavio Carrillo.
       In early June 2009, Uribe sent four threatening text messages to Carrillo over the
course of several hours late in the evening and early the following morning. Several of
the messages included a profanity-laced warning that Carrillo better watch out for
himself. One message warned, “Hope that you find me first because I’m not gonna tell
you again that lead is coming your way.” The final message again cautioned Carrillo to
watch out for himself and concluded, “I’m almost there, fool, and it’s gonna cost you
your life. Ha ha ha ha ha.”




                                              3
                                   Night of the Murder
       On June 28, 2009, Doe and Uribe took their kids shopping. After dropping Uribe
and the kids at his home in Napa, Doe made arrangements to see Carrillo. At around
9:30 or 10:00 p.m., Doe drove her BMW to Carrillo’s home in Calistoga.
       At about 1:30 a.m., Doe hugged Carrillo on the front porch of his house as she was
leaving to return home. They walked to Doe’s car with their arms around each other.
They both got into the car, with Doe in the driver’s seat and Carrillo in the passenger
seat. After Doe started the car, Uribe approached from the right front side of the vehicle.
He was wearing a black jacket and black jeans, and was holding an SKS assault rifle.
       Uribe shot Carrillo through the closed passenger window, shattering the glass.
Uribe cocked the gun and fired a second shot at Carrillo. After Uribe pulled Carrillo
from the car and threw him onto the ground, he directed Doe to drive away. When
paramedics arrived on the scene, Carrillo was dead.
       A couple blocks away from the scene of the shooting, Doe noticed Uribe driving
his father’s car behind her. He flashed his lights at her and called her on her cell phone,
telling her to follow him. They drove to Santa Rosa, and while en route, Uribe called his
friend, Daniel Eames, who lived in Santa Rosa. Uribe asked Eames if he could leave a
car at his house. Eames said that was fine. When Uribe arrived at Eames’s house, Uribe
backed Doe’s BMW into the driveway. Eames noticed the BMW had a broken window
and also saw blood dripping from the door jamb. Eames told Uribe he could not leave
the car there and eventually convinced Uribe to take the car to a place where he had seen
a house for rent. Uribe drove the BMW and followed Eames to a property with a “For
Rent” sign. Doe followed in Uribe’s father’s car. Uribe parked the BMW in the carport
and put a towel over the broken passenger side window. He then got into the passenger
seat of his father’s car and told Doe to drive back to Napa.
       On the drive back to Napa, Uribe punched Doe in the back of the head four times.
He told Doe he shot Carrillo in front of her so she could witness the killing and asked her,
“How does it feel to know someone died because of you?” Uribe told her she was lucky
the gun jammed or else he would have fired all 30 rounds.


                                             4
       Uribe instructed Doe to drive to his parents’ house in Napa so that he could switch
cars. After switching cars, he drove Doe to her house and went inside with her. Uribe hit
Doe, directed her into the bedroom, and had sex with her.
       In the morning, Uribe told Doe she had to go to work. He instructed her to take a
shower with tomato juice to get the gunpowder off her skin. He took Doe to work and
told her not to talk to the police. He also told her not to use her cell phone on the account
they shared together.

                                         Aftermath
       While at work on the day after the shooting, Doe spoke to some friends and
decided to go to the police. Doe was placed in a witness relocation program but was
ultimately terminated from the program after she returned to Napa to visit Uribe.
       At about 9:00 a.m. on the morning after the shooting, the owner of the rental
property in Santa Rosa at which the BMW had been left discovered the car and notified
the police. Officers responded and searched the BMW. In the trunk, they found a loaded
semiautomatic rifle beneath a towel. When the officers test-fired the gun, it jammed
about every other attempt. They determined the cartridge casings found at the scene of
the shooting were fired by the rifle recovered in the BMW. One of the casings found at
the scene of the shooting had damage consistent with a jamming of the weapon, and a
live round found at the scene appeared to have been ejected at the same time as the
jammed cartridge casing.
       On June 30, 2009, Uribe exchanged text messages with his friend, Jose Valdez.
One text from Uribe read, “I’m a G, brother, no one fucks with me, I walk the walk,
carnal, not just sell tickets loco, stay up, I’ll be back, not done yet, LOL.” Uribe also
wrote, “I handle mines loco, LOL, no one disrespects me, I ain’t a sucka, and erase all
this ‘cause it’s just a dream.” After Valdez informed Uribe that he had made the front
page of the newspaper, Uribe texted, “[Y]eeeaaaahhhh, boy.”




                                              5
                                        Defense Case
       Uribe testified in his own defense at trial. He admitted that he and Doe had a
stormy relationship. In late 2008, he began drinking heavily to cope with relationship
problems. The relationship deteriorated and Doe left home on February 14, 2009.
       In May 2009, Uribe learned that Doe was dating Carrillo. He admitted sending
threatening text messages to Carrillo in early June, but stated he was under the influence
of alcohol at the time. He also testified that he did not intend to follow up on his threats
and “most likely” wanted to scare Carrillo away from Doe.
       On June 28, Uribe and Doe took the children shopping at the mall. They had spent
the previous night together, and Uribe believed they were back together as a couple.
According to Uribe, he and Doe made plans to go to a movie together at around 9:00 p.m.
Doe dropped Uribe and the kids at his parents’ house, and while he was waiting for her to
come back, he drank a 24-ounce can of malt liquor. Doe did not return. Uribe tried to
text and call her, but she did not respond. He drank another 24-ounce can of malt liquor
and ingested about two-and-a-half grams of cocaine.
       Uribe took his father’s car and tried to find Doe at her friends’ houses in Napa. He
testified that he placed the assault rifle in his father’s car the day before because his
parents did not want it in their house. When he could not locate Doe in Napa, he drove to
Calistoga because Doe had female friends that lived there. Uribe testified that he did not
suspect Doe was with Carrillo and claimed he did not know where Carrillo lived.
       At around midnight, Uribe bought another can of malt liquor and began driving
the streets of Calistoga looking for Doe. Eventually, he saw Doe’s BMW parked on the
street. He went back to the store to buy another beer and then parked down the street
from the BMW. Over the course of the evening, Uribe had continued to ingest cocaine,
and in the early morning hours of June 29, he had sent a text message to his dealer to buy
an 8-ball. After he drank the second malt liquor he had purchased, Uribe noticed Doe
and Carrillo walking to the BMW. Uribe became angry and jealous after seeing their
arms around each other. He got the rifle out of his trunk, walked up to the car, and fired
twice. The gun jammed after the first shot and had to be cleared before Uribe could fire


                                               6
the second shot. Uribe testified that he could not recall aiming, pulling the trigger, seeing
the window break, pulling Carrillo out of the car, or getting into his car. His next distinct
memory was driving in Santa Rosa to Eames’s house. According to Uribe, he was not
thinking straight that night because he was under the influence of the alcohol and cocaine
he had consumed.
       The following day, Uribe returned to Santa Rosa to move the BMW but saw that
the police were already there. Uribe headed south and stopped to get a new cell phone.
He continued traveling south to Southern California and ended up at a relative’s house in
Compton.
       Doe’s brother testified for the defense and stated that he believed his sister often
took advantage of Uribe during the relationship. In late 2008, Doe’s brother noticed
comments on Uribe’s MySpace page about his mind playing tricks on him and hearing
voices. Uribe also mentioned to Doe’s brother on two occasions that he was hearing
voices. In early 2009, Doe’s brother noticed that Uribe had increased his alcohol and
drug use, and he observed that Uribe was often unshaven and exhibited poor hygiene
after Doe left him. Doe admitted she teased Uribe about talking to himself.
       A forensic toxicologist testified that Uribe’s blood alcohol level was likely
between .19 and .23 at the time of the shooting, based on the amount and type of alcohol
Uribe claimed to have consumed that night. The toxicologist explained that an
experienced drinker would not necessarily exhibit outward symptoms of intoxication at
those levels. The toxicologist also explained that cocaine typically contributes to
irritability and aggressive impulses, and that it can mitigate the depressive effects of
alcohol, causing an individual with a high blood alcohol level to be more alert than he
might be otherwise.
       In March 2010, while Uribe was in county jail, staff members at the jail referred
Uribe to Dr. Stancil Johnson, a psychiatrist. Dr. Johnson had been told that Uribe was
staying by himself and having little contact with others in the jail. After interviewing
Uribe, Dr. Johnson determined he “probably had a schizophrenia” and prescribed
medication. Dr. Johnson based his diagnosis in part on the fact Uribe said he had been


                                              7
hearing voices since he was 11 years old. Uribe also exhibited a flat affect common in
schizophrenics. After several changes in dosage, Uribe seemed to respond to the
medication, further confirming Dr. Johnson’s diagnosis.
       Dr. Johnson believed Uribe was not malingering and that he suffered from
schizophrenia for a good deal of his life. Dr. Johnson testified that schizophrenia could
affect a person’s control and judgment, and it could lower inhibitions especially in
conjunction with alcohol and cocaine use.
       A psychologist hired by the defense, Dr. William Foreman, first met Uribe in
August 2009. Dr. Foreman diagnosed Uribe with chronic post-traumatic stress disorder
(PTSD), major depressive disorders with psychotic features, and polysubstance
dependence. According to Dr. Foreman, Uribe’s exposure as a child to gang violence,
drive-by shootings, and confrontations at school and at home triggered his PTSD.
Dr. Foreman testified that symptoms of PTSD are similar to those experienced by persons
suffering from schizophrenia. He explained that individuals with PTSD often isolate
themselves and have trouble concentrating. They tend to distance themselves from their
own feelings and end up building into a rage that can be triggered in an instant.
Dr. Foreman opined that the content of Uribe’s text messages to Jose Valdez after the
murder were consistent with someone suffering from PTSD, because PTSD sufferers
often try to mask their vulnerability with exaggerated bravado.
       Dr. Foreman believed Uribe’s judgment, reasoning, and ability to control his
impulses would have been impaired on the night of the murder, taking into account the
amount of alcohol Uribe claimed to have consumed. He also testified that cocaine use
would allow an individual to feel emotions more intensely. Dr. Foreman stated that
Uribe did not report having any disordered thinking, auditory hallucinations, or delusions
on the night of the murder. However, he did believe that Uribe’s mental disorders could
impair his ability to plan, control behavior, and exercise executive functions over his
thoughts.




                                             8
                                          Rebuttal
       A psychiatrist hired by the prosecution, Dr. James Missett, believed Uribe was
depressed and anxious but felt that those symptoms resulted from the fact Uribe was
incarcerated and facing murder charges. Dr. Missett administered several psychological
tests to Uribe and concluded the results were consistent with diagnoses of anxiety,
depression, and possibly PTSD. However, Dr. Missett found no indication of
schizophrenia. Although he believed it was likely Uribe was depressed and anxious on
the night of the murder, Dr. Missett testified that it appeared Uribe was still able to
function “okay in terms of getting done things that he wants to get done for himself.” He
based his conclusion in part on the fact that Uribe’s conduct, such as fleeing the scene,
hiding the car, and threatening Doe to avoid having her talk about the murder tended to
show “organized thinking.”
       Another psychiatrist called by the prosecution, Dr. William Lynch, reviewed the
psychological testing done by Dr. Missett and Dr. Foreman. According to Dr. Lynch,
several of the tests were invalid due to inconsistent or exaggerated answers. Dr. Lynch
also testified that several of the tests showed indications that Uribe might be malingering.

                                        DISCUSSION
1.     Ineffective Assistance of Counsel
       Uribe contends his trial counsel provided constitutionally ineffective assistance by
failing to ask the court to instruct the jury with CALCRIM No. 3428, which concerns the
effect of a mental disease, defect, or disorder on a defendant’s ability to deliberate or
premeditate.3 As we explain, even assuming counsel’s performance was deficient,
Uribe’s claim fails because he cannot demonstrate a reasonable probability the outcome
would have been any different if his counsel had requested the instruction.




3
        For ease of reference, we shall use the term “mental disorder” to refer collectively
to the phrase “mental disease, defect or disorder” as used in CALCRIM No. 3428.


                                              9
       a.     Governing Legal Principles
       In order to establish a claim of ineffective assistance of counsel, a defendant bears
the burden of demonstrating both that counsel’s performance fell below an objective
standard of reasonableness (Strickland v. Washington (1984) 466 U.S. 668, 687-688) and
that there is “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” (Id. at p. 694; People v. Ledesma
(2006) 39 Cal.4th 641, 746.) “ ‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925.)
       “Unless a defendant establishes the contrary, we shall presume that ‘counsel’s
performance fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If
the record ‘sheds no light on why counsel acted or failed to act in the manner
challenged,’ an appellate claim of ineffective assistance of counsel must be rejected
‘unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.’ ” (People v. Ledesma, supra, 39 Cal.4th at
p. 746.)

       b.     Background
       Uribe’s defense at trial was that he was provoked and acted impulsively when he
shot Carrillo. His counsel emphasized that alcohol and drugs clouded Uribe’s judgment
and that Uribe suffered from mental problems that impaired his ability to premeditate and
deliberate. In closing argument, Uribe’s counsel urged the jury to find his client guilty of
manslaughter, concluding as follows: “They’ve failed to show the premeditation, they’ve
failed to show the deliberation, the mature, the thoughtful logical thinking that has to go
into this. It’s just as likely that [Uribe’s] acts were rash, impulsive and without
consideration or deliberation.”
       At the request of defense counsel, the trial court instructed the jury with
CALCRIM No. 625, which concerns the weight to be given to evidence of a defendant’s
voluntary intoxication. The instruction given to the jury reads, in part, as follows: “You
may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited

                                             10
way. You may consider that evidence only in deciding whether the defendant acted with
an intent to kill, or the defendant acted with deliberation and premeditation or whether
the defendant intended to conceal his purpose, waited for an opportunity and made a
surprise attack on the person from a position of advantage.”
       Defense counsel did not ask the court to instruct the jury with CALCRIM
No. 3428, which is similar to the instruction on how to weigh evidence of voluntary
intoxication (CALCRIM No. 625) except that it concerns the weight to be given to
evidence the defendant suffered from a mental disorder. CALCRIM No. 3428 directs a
jury to consider evidence of a mental disorder only for the limited purpose of deciding
whether, at the time of the charged crime, the defendant acted with the intent or mental
state required for the crime.4 The record on appeal sheds no light on why counsel
requested an instruction on how to weigh evidence of voluntary intoxication but did not
request a similar instruction applicable to evidence of a mental disorder.

       c.     Analysis
       Uribe argues that his counsel’s performance was constitutionally defective
because there could be no conceivable tactical reason for failing to request CALCRIM
No. 3428. The Attorney General suggests that defense counsel may have had a valid
tactical reason for the course of action if counsel determined it was better to focus


4
       In its standard form, CALCRIM No. 3428 reads: “You have heard evidence that
the defendant may have suffered from a mental (disease[,]/ defect[,]/ [or] disorder). You
may consider this evidence only for the limited purpose of deciding whether, at the time
of the charged crime, the defendant acted [or failed to act] with the intent or mental state
required for that crime. [¶] The People have the burden of proving beyond a reasonable
doubt that the defendant acted [or failed to act] with the required intent or mental state,
specifically: _____ <insert specific intent or mental state required, e.g., ‘malice
aforethought,’ ‘the intent to permanently deprive the owner of his or her property,’ or
‘knowledge that the . . .’>. If the People have not met this burden, you must find the
defendant not guilty of _____ <insert name of alleged offense>. [¶] <Repeat this
paragraph for each offense requiring specific intent or a specific mental state.> [¶] [Do
not consider evidence of mental (disease[,]/ defect[,]/ [or] disorder) when deciding if
_____ <insert name of nontarget offense> was a natural and probable consequence of
_____ <insert name of target offense>.]”


                                             11
primarily on the provocation and intoxication defenses. It is unnecessary for us to
resolve whether defense counsel’s performance was constitutionally defective because
we can dispose of Uribe’s ineffective assistance claim by focusing on the prejudice
component of the analysis. (See In re Alvernaz (1992) 2 Cal.4th 924, 945; see also
Strickland v. Washington, supra, 466 U.S. at p. 697 [“[A] court need not determine
whether counsel’s performance was deficient before examining the prejudice suffered by
the defendant . . . . If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should be
followed”].)
       Under the circumstances presented here, Uribe cannot demonstrate a reasonable
probability the outcome would have been any more favorable if his counsel had requested
CALCRIM No. 3428. Among other things, there was ample evidence that Uribe
premeditated and lay in wait before killing Carrillo. He had threatened to kill the victim
in the month before the shooting and had told Doe he would kill her and anyone she
dated. On the night of the murder, Uribe wore dark clothing, drove to Calistoga at
midnight with an assault rifle in the trunk of his car, and waited near Doe’s vehicle until
she returned with Carrillo. After Uribe shot Carrillo the first time and the gun jammed,
Uribe had the presence of mind to clear the jam and shoot the victim a second time. He
then methodically disposed of the evidence and fled to Southern California. As
Dr. Missett testified, Uribe’s actions on the night of the murder tended to show that, even
though Uribe may have been suffering from anxiety and depression, he exhibited
“organized thinking.” Further, even an expert called by the defense, Dr. Foreman, stated
that Uribe did not report having any disordered thinking, hallucinations, or delusions on
the night of the murder.
       The omission of CALCRIM No. 3428 did not remove from the jury’s
consideration or incorrectly define the elements of the charged offenses. The trial court
instructed the jury on the law applicable to the evidence presented, including the various
mental states and specific intents required to establish the charged crimes. At the request
of defense counsel, the court also read the pinpoint instruction directing the jury to


                                              12
consider evidence of voluntary intoxication for the limited purpose of deciding whether
Uribe has the requisite mental states or intent. Uribe was allowed to present expert
testimony concerning the nature and effect of his claimed mental disorders, and the jury
was instructed how to consider and evaluate expert opinion testimony.
       Moreover, the jury was well aware that Uribe’s defense was that he did not
premeditate or lie in wait. Defense counsel emphasized in closing argument that Uribe’s
ability to premeditate and to plan was impaired by mental disorders as well as his
intoxication, as follows: “If he’s impaired, if he’s impaired when these doctors see him a
year and a half afterwards, the likelihood is that he had major mental problems a year and
a half earlier. . . . [¶] It impairs his ability to premeditate and deliberate, to plan, to lie in
wait with a plan from ambush, to plan the homicide and then execute it when the time is
right. . . . [¶] You cannot say beyond a reasonable doubt that Mr. Uribe had the ability
to do these things on top of everything else, on top of the intoxication, on top of the
impulsive act which the posttraumatic stress disorder feeds, this highly symptomatic, the
high startle reflex that is characteristic of the posttraumatic stress disorder.”
       Therefore, the jury heard the evidence supporting the mental disorder defense and
was urged to consider it when deciding whether Uribe acted with the requisite intent and
mental state. The omission of CALCRIM No. 3428 did not result in a misstatement of
the intent element of the charged offenses. “CALCRIM No. 3428 does not delineate or
describe an element of an offense.” (People v. Larsen (2012) 205 Cal.App.4th 810, 830.)
It is in the nature of pinpoint instruction that highlights the defense theory of the case, as
opposed to a general principle of law that a court must give sua sponte if supported by the
evidence. (See People v. Homick (2012) 55 Cal.4th 816, 890; People v. Larsen, supra,
205 Cal.App.4th at pp. 824, 830; see also People v. Ervin (2000) 22 Cal.4th 48, 91
[discussing CALJIC No. 3.32, predecessor to CALCRIM No. 3428].) The jury
necessarily considered whether Uribe possessed the requisite intent or mental state
associated with the charged crimes. The omission of CALCRIM No. 3428 may have
deprived Uribe of a singular, distinctive focus on the impact of his purported mental
disorders as they relate to the issue of intent, but it did not leave jurors with the


                                               13
misconception that they must in any way discount the expert testimony or the mental
disorder defense. “Nothing in the instructions or argument precluded the jury from at
least assessing the mental disorder evidence–and specifically the expert testimony–on the
issue of intent.” (People v. Larsen, supra, 205 Cal.App.4th at. p. 833.)
       Uribe contends that his trial counsel’s focus on the mental disorder defense in
closing argument was an inadequate substitute for the missing instruction. We disagree.
As support for the notion that argument of counsel is not a substitute for a jury
instruction, he cites a case in which a court refused to give an instruction on the effect of
a defendant’s failure to testify (Carter v. Kentucky (1981) 450 U.S. 288, 294) and he cites
another case in which a court failed to inform the jury the defendant was presumed to be
innocent and that the prosecution had the burden of proving guilt beyond a reasonable
doubt (People v. Vann (1974) 12 Cal.3d 220, 225). In Carter v. Kentucky, the United
States Supreme Court held a trial court has a constitutional obligation to give a requested
instruction on the effect of a defendant’s failure to testify. (Carter v. Kentucky, supra, at
p. 305.) In People v. Vann, our Supreme Court pointed out that the omitted instructions
stated general principles of law that the court had a sua sponte obligation to give to the
jury. (People v. Vann, supra, at pp. 225-226.) By contrast, the omitted instruction in this
case did not state a constitutional precept or a general principle of law but instead merely
pinpointed a defense theory consistent with the instructions given to the jury.
       Uribe also claims his counsel may have undermined his credibility by arguing the
mental disorder defense to the jury without the support of an instruction. The case law
relied upon by Uribe for this proposition is inapposite. He cites United States v. Duncan
(6th Cir. 1988) 850 F.2d 1104, 1117-1119, overruled on other grounds in Schad v.
Arizona (1991) 501 U.S. 624, 634, in which the court concluded that counsel’s closing
argument was more harmful than helpful when it appeared to be contrary to and was
precluded by the instructions given to the jury. Here, nothing in the instructions given to
the jury precluded it from considering the effect of Uribe’s purported mental disorders on
the issue of his intent or mental state. Thus, there is no reason to believe the jury would
have discounted the mental disorder argument advanced by Uribe’s trial counsel, or the


                                             14
evidence supporting it, simply because the jury instructions omitted a pinpoint instruction
specifically addressed to that issue.
       Because we conclude Uribe cannot demonstrate that he was prejudiced as a
consequence of his counsel’s failure to request CALCRIM No. 3428, we reject his claim
of ineffective assistance of counsel.

2.     Sentencing Error
       Uribe was convicted in count 5 of possession of a firearm by a felon (former
§ 12021, subd. (a)(1)), in count 6 of possession of a firearm by a misdemeanant (former
§12021, subd. (c)(1)), and in count 7 of possession of an assault rifle (former § 12280,
subd. (b)). The court imposed two-year concurrent sentences for each of the three
firearm possession offenses. Uribe contends the sentences on two of the three counts
should be stayed pursuant to section 654. The Attorney General concedes the trial court
erred in imposing concurrent sentences on all three of the firearm possession offenses.
       Section 654 prohibits multiple punishment for a single act or an indivisible course
of conduct. (§ 654; People v. Deloza (1998) 18 Cal.4th 585, 591.) Imposition of a
concurrent sentence is considered multiple punishment under section 654. (See People v.
Jones (2012) 54 Cal.4th 350, 353.) Instead of imposing concurrent sentences, “the
accepted ‘procedure’ is to sentence defendant for each count and stay execution of
sentence on certain of the convictions to which section 654 is applicable.” (Ibid.)
       The basis for the three firearm possession convictions was Uribe’s possession of
the SKS assault rifle on the day of the murder. “[A] single possession or carrying of a
single firearm on a single occasion may be punished only once under section 654.”
(People v. Jones, supra, 54 Cal.4th at p. 357.) Therefore, the judgment should be
modified to provide that the sentences on two of the three firearm possession offenses are
stayed pursuant to section 654.

                                        DISPOSITION
       The judgment is modified to reflect that the sentences associated with count 6
(former § 12021, subd. (c)(1)) and count 7 (former § 12280, subd. (b)) are stayed



                                            15
pursuant to section 654. The trial court is directed to prepare an amended abstract of
judgment in accordance with this disposition and deliver it to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.



                                                 _________________________
                                                 McGuiness, P. J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




                                            16
