Filed 6/20/18

                     CERTIFIED FOR PARTIAL PUBLICATION*

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                      DIVISION TWO



    THE PEOPLE,
                                                      E064915
          Plaintiff and Respondent,
                                                      (Super.Ct.No. SWF1302486)
    v.
                                                      OPINION
    ANTHONY ESPARZA CORTEZ, JR.,

          Defendant and Appellant.


         APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge.

Affirmed in part; reversed in part with directions.

         Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General,

Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney

General, Arlene A. Sevidal, Michael Pulos, and Alan L. Amann, Deputy Attorneys

General, for Plaintiff and Respondent.




* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts IV, V and VI
                                             1
                                               I

                                     INTRODUCTION

       Defendant and appellant, Anthony Esparza Cortez, Jr., a convicted felon, and his

friend, Michael Saavedra, conspired to commit murder against Rene Perez, and his son-

in-law, Alvino Barrera. While defendant drove, Saavedra fired a gun at Perez and

Barrera in another car. Defendant and Saavedra then drove to the home of Guadalupe

Valle, Perez’s relative by marriage. Armed with a rifle and a handgun, defendant and

Saavedra fired more than 30 bullets into the house, which was occupied by 10 people.

Defendant admitted having possession of the rifle used in the shooting, and of an assault

rifle which is banned in California, as well as several rounds of ammunition.

       A jury convicted defendant of five charges: conspiracy to commit murder; being a

felon in possession of a firearm; possessing firearms ammunition while prohibited from

possessing a firearm; assault with a firearm; and possessing an assault weapon. (Pen.

Code, §§ 182, 187, 245, subd. (a)(2), 1192.7, subd. (c)(8), 12022, subd. (a)(1), 12022.53,

subd. (c), 29800, subd. (a)(1), 30305, subd. (a), 30605, subd. (a).)1 The court sentenced

defendant to an aggregate, determinate term of 29 years four months, followed by an

indeterminate term of 25 years to life.




       1   All statutory references are to the Penal Code.

                                              2
       On appeal, defendant claims the trial court erred in not instructing the jury sua

sponte on conspiracy to commit assault with a firearm and conspiracy to shoot at an

inhabited dwelling as lesser included offenses of conspiracy to commit murder as

charged. Defendant also claims the trial court erred in denying his requested self-defense

instruction. Additionally, he asserts substantial evidence did not support the jury’s

finding that defendant personally and intentionally discharged a firearm in the

commission of conspiracy to commit murder.

       Finally, defendant asserts four claims of sentencing error, which the People

concede. The parties agree the trial court should strike the one-year section 12022,

subdivision (a)(1), enhancement as to the assault with a firearm count (count 4). The trial

court should also stay under section 654 the one-year section 12022, subdivision (a)(1),

enhancement as to the conspiracy count. In addition, under section 654, the trial court

should also stay the separate punishment either for count 2 or count 5. Defendant further

asserts in supplemental briefing that this court should remand this matter for resentencing

on his firearm enhancement (§ 12022.53, subd. (c)) under recently enacted Senate Bill

No. 620 ((2017-2018 Reg. Sess.) § 2), which amended section 12022.53, subdivision (h).

The parties agree in their supplemental briefs that the recent amendment applies in this

case retroactively, because the amendment took effect before final judgment.




                                             3
       We accordingly order this matter remanded to the trial court for the purpose of

permitting the trial court to exercise its discretion as to whether to strike defendant’s

firearm enhancement, and to make the other corrections to defendant’s sentence, as noted

above. In all other regards, we affirm the judgment.

                                              II

                                 STATEMENT OF FACTS

       In reviewing instructional error, we consider the evidence in the light most

favorable to defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)

       A. Prosecution Evidence

       Defendant first became friends with Valle at a classic car show. Both men are

fans of 1950’s automobiles. Perez is married to Valle’s wife’s cousin. In June 2013,

there was a fight among the guests at a party at Perez’s house. The combatants included

defendant, Saavedra, and Barrera.

       Perez and Valle helped break up the fight. Perez and Valle discussed what had

happened and agreed there was no ongoing problem. Defendant seemed pleased to leave

the party. Perez did not see any punches thrown and he thought the dispute had ended.

       After the June party, defendant sent several text messages to Valle, asking for

photographs from a car show. Eventually, Perez sent defendant the photographs.




                                              4
       B. The Offenses

       The basis for the conspiracy to commit murder in count 1 involved two separate

shooting episodes—assault with a firearm on Perez’s vehicle and the shooting of the

Valle residence.

       On August 17, 2013, Perez and Barrera were on a liquor run when a car stopped in

front of them at an intersection. Perez saw a hand outside the car but did not see anything

else because it was dark. As Perez drove away, he heard a loud pop that could have been

a gunshot or a car backfiring. Perez did not see any of the car’s occupants or whether

they threw beer cans out of the car.

       At trial, Perez testified he did not remember telling law enforcement about the car

and the incident. However, Perez had stated in his police interview that both he and

Barrera were in Perez’s car at an intersection when a silver 2000 Chevrolet Monte Carlo

with 20-inch chrome rims pulled up to their car, and a single shot was fired from the

passenger side towards Perez’s car. Perez described the passenger as a bald very thin

Hispanic man and said that, as the Monte Carlo drove away, both the driver and the

passenger tossed out Modelo beer cans.

       The parties stipulated that a witness would testify that, at the intersection where

the Perez shooting took place, a silver two-door Chevrolet Impala pulled up with two

Hispanic men inside. The driver was a heavyset man, with a mustache; the passenger

was a thin man, with a mustache and a goatee.2 The passenger, holding a black handgun,

       2Defendant testified that both he and Saavedra were stocky; Saavedra’s weight
was about 230 or 235 pounds. They could wear the same size pants.

                                              5
yelled that they were from Carson and Fontana. Defendant is from Fontana and Saavedra

is from Carson. Defendant was the driver of their car. The parties stipulated that one of

the beer cans collected at the scene had Saavedra’s fingerprints on it.

       C. The Valle Residence Shooting

       Later on the evening of August 17, 2013, Valle was at home with his wife and

other family members. The rooms were illuminated. One of Valle’s sons and a grandson

were in the living room in the front of the house with the blinds closed. Valle’s daughter

was taking a shower in a bathroom adjacent to a bedroom near the front door. Two of her

friends were waiting for her in the room. Valle’s daughter heard a loud noise and the

sound of breaking glass. Valle estimated 30 shots were fired through the front door and

three walls.

       Valle’s neighbors across the street heard the shots. The father described two

Hispanic men, one big and the other “a little bit smaller.” The larger man was shooting a

rifle. The thinner man may have fired several shots as well. After the shooting stopped,

both men got into the car and drove off. The son testified that he only saw a single

shooter, next to a white or a beige car with big silver rims. The shooter was a man, age

30 to 35.

       Soon after the shooters left, defendant called Valle multiple times to ask him if he

was all right. A subsequent police investigation revealed bullet holes in the door and the

inside walls of the house, including the living room windows and the bedroom that was

closest to the front door. The bullet strike marks were found all the way from the floor to



                                             6
the ceiling. A .40-caliber shell casing was at the scene. No gun or ammunition of that

caliber was found during the subsequent search of defendant’s and Saavedra’s residences.

       During police questioning, defendant admitted that he drinks Modelo beer and

knows Saavedra, although he had not seen him for a while. He also admitted there were

shell casings in his Chevrolet Monte Carlo. Defendant was equivocal about the details of

the Perez assault but he knew no one had been killed.

       D. The Weapons Charges

       The parties stipulated that defendant was prohibited from possessing a firearm due

to a prior felony conviction. Defendant admitted that two rifles and ammunition found at

his house belonged to him. The officers found firearm ammunition in a bedroom and

additional ammunition (nine-millimeter) in the garage. The police found a synthetic

polymer stock used to modify a weapon to change its appearance. The police also found

a Norinco-320 rifle (an Uzi) in defendant’s car. At trial, a prosecution’s expert testified

that the Norinco-320 rifle meets the definition of an assault weapon banned under the

California Assault Weapons Act because it has a pistol grip, and a capacity to accept a

detachable magazine and a folding stock. Also, the police found a .223-caliber Ruger

Mini-14 rifle in the attic of the house.

       E. The Defense

       The defense argued defendant was not guilty of conspiracy to commit murder

because there was no evidence of a conspiratorial agreement to kill or the intent to kill.

Concerning the Perez episode, the defense argued that the evidence, at worst, showed a



                                              7
single shot fired with the intent to scare Perez, not to kill anyone in his car. As to the

Valle shooting, the defense argued that Saavedra returned fire only after someone had

shot at them from the direction of the Valle house.

       Defendant testified that he denied conspiring to kill anyone or intending to kill

anyone.3 On August 17, 2013, defendant finished work and headed home, stopping to

buy six 24-ounce Modelo beer cans. Defendant then left his home, planning to attend a

children’s birthday party at Saavedra’s house, so he also bought a gift card and another

36 cans of Modelo beer. Defendant arrived at around 6:00 or 6:30 p.m. Defendant had

placed weapons in the car—handguns and a Ruger Mini-14 rifle—because the next

morning, he planned to go to a shooting range in Fontana.

       After drinking heavily, defendant, Saavedra, and another man made a beer run.

Defendant bought another 30-pack of Modelo beer while Saavedra bought a 30-pack of

Bud Light. They returned to the party and played darts. Defendant had three or four

shots of tequila; Saavedra drank more because he was losing the darts competition.

       After Saavedra and his wife had an argument, she asked everyone to leave.

Defendant left the party with Saavedra and again stopped by a liquor store. Saavedra

stayed in the car while defendant bought beer. Defendant encountered Barrera, with

whom he had the fight in June. Defendant thought the fight was no longer an issue, but

Barrera kept repeating, “Hey, bitch. Remember me?” Barrera then threw a beer bottle at

defendant but missed.


       3   The trial court admitted a prior conviction to impeach his credibility.

                                               8
       Defendant drove his car to Perez’s house. Defendant wanted to ask Perez about

the argument with Barrera. When Perez did not answer, defendant kicked over a

motorcycle in anger. Defendant then drove back to the same liquor store and bought a

30-pack of Modelo beers and an 18-pack of Bud Light. At that point, defendant already

had 15 to 18 beers.

       As they were driving, defendant and Saavedra saw Barrera driving Perez’s car in

the opposite direction. Without any notice, Saavedra fired a single shot. Afterwards,

Saavedra told defendant that he did not intend to shoot anyone. Barrera drove off in a

different direction. Defendant and Saavedra did not pursue him.

       F. The Valle Residence Shooting

       Defendant and Saavedra noticed police activity and decided to go to Valle’s house

to evade the police and hide the guns. Defendant drove to the Valle house and parked,

blocking the driveway at an angle. Defendant got out of the car and grabbed as much

beer as he could. Saavedra took his handgun and rifle. Defendant noticed two men by

the garage door, wearing black sweaters with hoods, concealing their faces. One man

started to shoot. Saavedra dove and returned fire. They continued to exchange fire until

defendant threw a beer can at the shooter, who ran into the house, firing rounds as he

moved towards the entrance.

       After the shooting finished, defendant and Saavedra slowly drove off. Defendant

was nervous and fumbling with his keys. Saavedra had been scorched by a round that

came very close to him. Defendant checked to see if Saavedra was all right. Defendant



                                            9
called Valle and asked why he was shooting at him. Valle said that he could not really

talk and that he would call him back later.

                                              III

INSTRUCTION ON CONSPIRACY TO COMMIT ASSAULT WITH A FIREARM OR

                     TO SHOOT AT AN INHABITED DWELLING

       Defendant argues the trial court had a sua sponte duty to instruct the jury on two

offenses that he argues were necessarily included within the charged offense of

conspiracy to commit murder: conspiracy to commit assault with a firearm and

conspiracy to shoot at an inhabited dwelling. However, neither offense was necessarily

included within conspiracy to commit murder as charged. The alleged conspiracy

agreement was only to commit murder. There are no allegations defendant conspired or

agreed to commit an assault with a firearm or shoot at an inhabited dwelling. Such

conspiracy offenses thus are not necessarily included offenses.

       In addition, substantial evidence did not support giving either instruction. At trial,

defendant contended he did not commit any offense. He also did not claim he conspired

to commit any lesser offense. Based on the evidence that defendant and Saavedra fired

more than 30 bullets into an occupied residence, it was not reasonable for a jury to find

that defendant conspired to commit an assault with a firearm or conspired to shoot at an

inhabited house, instead of finding defendant conspired to commit murder.




                                              10
       Finally, any error was harmless because there was overwhelming evidence

defendant conspired to commit murder when he and Saavedra both simultaneously fired a

deluge of bullets into Valle’s home.

       A. Procedural Background

       Count 1 of the charging document alleged that defendant conspired to commit

murder in violation of section 187 based on 10 overt acts: (1) defendant and Saavedra

armed themselves; (2) defendant drove his car; (3) defendant pulled his car in front of a

car driven by Perez; (4) Saavedra fired one shot at Perez’s vehicle; (5) defendant then

drove to the Valle residence; (6) defendant and Saavedra exited the car and approached

the Valle residence; (7) and (8) both men fired their weapons—about 30 bullets—at the

house; (9) defendant and Saavedra then fled the scene; and (10) defendant hid the .223-

caliber rifle used in the shooting in his home’s attic.

       The court instructed the jurors that to find defendant guilty of conspiracy to

commit murder as charged, they had to find that defendant and Saavedra agreed

intentionally and unlawfully to kill and committed at least one of the overt acts alleged.

The court further instructed the jury that the “People have presented evidence of more

than one event to prove that the defendant committed this offense [of conspiracy to

murder], specifically evidence of the alleged shooting of Rene Perez and evidence of an

alleged shooting at [Valle’s] residence.” The overt acts could apply either to conspiracy

to commit murder of Perez or murder at the Valle residence. The jury was also instructed

that, in determining whether defendant committed the alleged overt acts, it was to



                                              11
consider “all of the evidence presented about the overt acts.” Finally, in finding

defendant guilty of conspiracy to commit murder as charged, the jury found that, in

committing that offense, defendant personally and intentionally discharged a firearm and

that he participated as a principal in committing that offense, knowing that another

principal to the offense was armed with a firearm.

       B. Law Applicable to Determining a Lesser Included Offense

       The test for determining whether there is a necessarily included offense is whether

one offense cannot be committed without necessarily committing another offense; the

latter is a necessarily included offense. (People v. Pendleton (1979) 25 Cal.3d 371, 382.)

“An offense is necessarily included in the charged offense if (1) under the statutory

definition of the charged offense the charged offense cannot be committed without

committing the lesser offense, or (2) the charging allegations of the accusatory pleading

include language describing the offense in such a way that if the charged offense was

committed as specified, the lesser offense was necessarily committed.” (People v.

Fenenbock (1996) 46 Cal.App.4th 1688, 1707 (Fenenbock); see also People v. Lopez

(1998) 19 Cal.4th 282, 288-289; People v. Clark (1990) 50 Cal.3d 583, 636.) These two

lesser-included-offense tests are known as the elements test and the accusatory pleading

test, respectively. Often, when considering whether to instruct on a lesser included

offense (the relationship) courts have applied either the elements test or the accusatory

pleading test. (People v. Juarez (2016) 62 Cal.4th 1164, 1174; People v. Shockley (2013)

58 Cal.4th 400, 404.)



                                             12
       Here, the parties agree the assault and dwelling-shooting conspiracy offenses do

not qualify as lesser included offenses to the murder conspiracy charge under the

elements test. The issue here is whether the offenses qualified as lesser included offenses

under the accusatory pleading test by virtue of language in the information describing the

overt acts. In determining whether an accusatory pleading encompasses an allegedly

lesser included offense, the courts “consider only the pleading for the greater offense.”

(People v. Montoya (2004) 33 Cal.4th 1031, 1036.) It is “of no consequence that the

evidence at trial might also establish guilt of another and lesser crime than that charged.”

(People v. Steele (2000) 83 Cal.App.4th 212, 218.)

       California courts have a sua sponte duty to instruct the jury on all necessarily

included offenses supported by substantial evidence from which a reasonable juror could

find the defendant guilty of the lesser offense but not the greater. (People v. Licas (2007)

41 Cal.4th 362, 366, citing People v. Cole (2004) 33 Cal.4th 1158, 1218.) This court

independently reviews a trial court’s failure to instruct the jury on a necessarily included

offense. (Licas, supra, at p. 366.)

       C. Conspiracy

       Section 182 defines the crime of conspiracy as two or more persons conspiring to

“commit any crime.” (§ 182, subd. (a)(1).) Section 184 requires that one or more parties

to the agreement commit an act to “effect the object” of the conspiracy. (§ 184.) Thus a

conspiracy requires proof that the defendant and at least one other person “had the

specific intent to agree or conspire to commit an offense, as well as the specific intent to



                                             13
commit the elements of that offense, together with proof of the commission of an overt

act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy.”

(People v. Morante (1999) 20 Cal.4th 403, 416, quoting § 184; People v. Cortez (1998)

18 Cal.4th 1223, 1232.) An overt act is an “‘“outward act done in pursuance of the crime

and in manifestation of an intent or design, looking toward the accomplishment of the

crime.”’” (People v. Johnson (2013) 57 Cal.4th 250, 259, quoting People v. Zamora

(1976) 18 Cal.3d 538, 549, fn. 8.) The overt act requirement “consists of an overt act,

not a specific overt act.” (People v. Russo (2001) 25 Cal.4th 1124, 1134.) The jury need

not unanimously agree on a particular overt act but only that the defendant or a

coconspirator committed at least one of the overt acts alleged. (Ibid.)

       Conspiracy is a crime distinct from the substantive offense that is its object; it does

not require commission of the substantive offense (target offense). (People v. Swain

(1996) 12 Cal.4th 593, 600; People v. Morante, supra, 20 Cal.4th at pp. 416-417.) The

conspiratorial agreement is itself the essence of the crime, and is what it seeks to punish.

(People v. Johnson, supra, 57 Cal.4th at p. 258, citing Swain, supra, at p. 599.) That is

why, “[o]nce one of the conspirators has performed an overt act in furtherance of the

agreement, ‘the association becomes an active force[;] it is the agreement, not the overt

act, which is punishable. Hence the overt act need not amount to a criminal attempt and

it need not be criminal in itself.’” (Johnson, supra, at p. 259.)




                                             14
       D. Application of Fenenbock and Cook

       Defendant argues that under People v. Cook (2001) 91 Cal.App.4th 910 (Cook),

the trial court was required to instruct sua sponte on conspiracy to commit assault with a

firearm and conspiracy to shoot into an inhabited home, as lesser included offenses of the

count 1 charge of conspiracy to murder. The People argue Cook was wrongly decided

and this court should follow Fenenbock, supra, 46 Cal.App.4th 1688, in which the court

held that the trial court was not required to instruct on any lesser conspiracy crimes. As

noted by the People, there is a split of authority as to whether the overt acts allegations in

the accusatory pleading can be considered when determining whether the court must

instruct sua sponte on a lesser included conspiracy offense under the accusatory pleading

test. (Cook, supra, at p. 920.)

       In Fenenbock, the defendants argued the trial court erred in not sua sponte

instructing on conspiracy to commit assault, battery, and mayhem as lesser included

offenses of conspiracy to commit murder. At the outset, the parties in Fenenbock agreed

that the target offense of assault, battery, and mayhem did not qualify as offenses

included within the statutory definition of murder under the elements test. The

defendants, however, argued that the offenses qualified as lesser included target offenses

under the accusatory pleading test “by virtue of language in the information describing

the overt acts.” (Fenenbock, supra, 46 Cal.App.4th at p. 1707.) The Fenenbock court

disagreed, stating: “Here, in the context of deciding whether the trial court was obligated

to instruct sua sponte on lesser included offenses, we conclude that allegations of overt



                                              15
acts committed in furtherance of the alleged conspiracy do not provide notice of lesser

included target offenses.” (Id. at p. 1708.) This is because the criminal act in a

conspiracy is the agreement. (Ibid.)

       Fenenbock explained that a conspiracy agreement is not punishable unless an

overt act is committed in furtherance of the conspiracy. (Fenenbock, supra, 46

Cal.App.4th at p. 1708; §§ 182, subd. (b), 184.) “[D]ue process principles require that

overt acts be pleaded with particularity to give the defendant notice of the prosecution’s

theory.” (Fenenbock, supra, at p. 1708.) But “[i]t is the agreement, not the overt act in

furtherance of the agreement, which constitutes the offense.” (Id. at p. 1709.) The

Fenenbock court concluded that, “[b]ecause overt acts need not be criminal offenses or

even acts committed by the defendant, the description of the overt acts in the accusatory

pleading does not provide notice of lesser offenses necessarily committed by the

defendant.” (Ibid.) Therefore, under Fenenbock, “it is the description of the agreement

within the accusatory pleading, not the description of the overt acts, which must be

examined to determine whether a lesser offense was necessarily the target of the

conspiracy.” (Ibid.)

       Defendant urges this court to decline to follow Fenenbock, supra, 46 Cal.App.4th

1688, and instead follow Cook, supra, 91 Cal.App.4th 910. In Cook, the defendants

appealed their convictions, which included conspiracy to commit assault with a firearm

as a lesser included offense of conspiracy to commit murder. Relying on Fenenbock, the

Cook defendants argued that the trial court violated their right to notice and due process



                                             16
by instructing the jury that if they had a reasonable doubt that the defendants were guilty

of conspiracy to commit murder, they could convict the defendants of the lesser included

offense of conspiracy to commit assault with a firearm. (Cook, supra, at p. 913.)

       The Cook court rejected this contention, holding that “the trial court may look to

the overt acts pleaded in a charge of conspiracy to determine whether the charged offense

includes the lesser included offense. Under the accusatory pleading test for determining

lesser included offenses, we find that conspiracy to commit assault by means of a firearm

is a lesser included offense of conspiracy to commit murder as that offense was pleaded

in the accusatory pleading. The overt acts alleged in the information gave notice to

defendants of the lesser included offense, and the defendants do not claim the facts

shown at the preliminary hearing failed to give them notice of the lesser offense or that

they were surprised by the evidence presented at trial.” (Cook, supra, 91 Cal.App.4th at

p. 914.)

       Cook, supra, 91 Cal.App.4th 910 is distinguishable. In Cook, the defendant

appealed on the ground the trial court erred in instructing on conspiracy to commit

assault with a firearm as a lesser included offense of murder, whereas, here, defendant

appeals the trial court’s failure to instruct sua sponte on any lesser included offenses to

conspiracy to commit murder. Unlike in the instant case, the Cook defendants argued

their notice and due process rights were violated by the court instructing on the lesser

included offense based on the overt acts allegations. Also, in Cook, the People conceded

instructional error and requested reversal of the defendants’ conspiracy convictions. The



                                             17
Cook court nevertheless upheld the trial court’s instruction on the lesser included offense,

concluding the accusatory pleading provided sufficient notice of the lesser included

offense of conspiracy to commit assault with a firearm. (Id. at p. 913.)

       We agree with Cook to the extent that the trial court may consider overt act

allegations when determining whether sua sponte instruction on a lesser included

conspiracy offense is required. Even though overt acts need not be criminal offenses or

acts committed by the defendant, there may be overt act allegations establishing that the

defendant has agreed or conspired to commit lesser included target offenses. It is

therefore not error for the trial court to consider the overt act allegations when

determining whether the conspiracy count allegations as a whole require sua sponte

instruction on a lesser included conspiracy offense. The Cook court recognized that, “[t]o

the extent an accusatory pleading fails to allege overt acts sufficient to give notice of a

lesser included offense, the trial court may not rely on the pleading as a basis to instruct

on lesser included offenses not included in the allegations of that pleading. Nevertheless,

the possibility that some pleadings charging conspiracy may fail to give sufficient notice

of lesser included offenses is not cause to hold, as a matter of law, that no pleading

charging conspiracy gives sufficient notice of lesser included offenses.” (Cook, supra, 91

Cal.App.4th at p. 921.)




                                              18
       We disagree, however, with Cook’s holding that the pleadings, including the overt

act allegations, required an instruction on the lesser included offense of conspiracy to

commit assault with a firearm. (Cook, supra, 91 Cal.App.4th at p. 922.) In Cook, as in

the instant case and in Fenenbock, the accusatory pleading did not allege that the

defendants agreed to commit any crime, other than murder. There were no allegations,

even in the overt acts allegations, that the defendants agreed to commit merely an assault.

The Cook accusatory pleading alleged the four defendant’s conspired to commit murder

and in doing so, committed the following overt acts: Two of the defendants purchased a

gun to carry out the object of the conspiracy, and all four defendants met and discussed

killing the two victims. All four defendants then went to the victims’ apartment and one

of the defendants shot both victims, killing one of them. The other victim survived.

(Cook, supra, at p. 919, fn. 22.)

       Assuming under Cook that the trial court could properly consider the alleged overt

acts in determining whether a conspiracy charge encompasses other, lesser target

offenses, the overt acts alleged in this case did not render defendant’s allegedly lesser

offenses necessarily included. The description of the conspiratorial agreement to commit

murder cannot be fairly read to describe or encompass either conspiracy to commit

assault with a firearm or conspiracy to shoot at an inhabited dwelling. Therefore, the trial

court was not required to instruct sua sponte on either of these offenses, because the

accusatory pleadings did not place defendant on notice of prosecution of any conspiracy

offense, other than conspiracy to commit murder. (Schmuck v. U.S. (1989) 489 U.S. 705,



                                             19
717; Cook, supra, 91 Cal.App.4th at p. 921.) Although the overt acts allegations describe

acts that would support charges for assault and shooting at an inhabited dwelling, such

allegations are insufficient to support conspiracy charges based on those target offenses,

because there are no allegations of the requisite element of defendant agreeing or

conspiring to commit those target offenses. Therefore, the trial court did not err in not

sua sponte instructing on conspiracy to commit assault or shoot at an inhabited dwelling

as lesser included offenses of conspiracy to commit murder.

       The fact that defendant was charged with the substantive offense of assault with a

firearm for the Perez shooting (count 4) does not mean the conspiracy charge necessarily

encompassed that offense as a lesser target offense of conspiracy to commit murder, as

defendant argues. Defendant and Saavedra could have agreed at the outset to commit

murder and then planned to accomplish the murder by ambushing and shooting at Perez

and Barrera. They could have then committed the substantive offense of assault with a

firearm when Saavedra shot at Perez and Barrera and missed them. (§ 254, subd. (a)(2).)

Their commission of assault with a firearm would not have changed the original nature of

their conspiracy, which was to commit murder, and it did not render assault with a

firearm a necessarily included target offense of the conspiracy to commit murder.

       E. Insufficient Evidence to Support Instruction on Lesser Included Offenses

       Even if the accusatory pleading allegations supported instruction on the offenses

of conspiracy to commit assault and shooting at an inhabited dwelling, there was

insufficient evidence to support such instructions. A trial court is not obligated to instruct



                                             20
the jury on a necessarily included offense without substantial evidence or with no

evidence that the offense was less than charged. (People v. Mendez (1999) 19 Cal.4th

1084, 1100-1101, 1106.) Here, there was insufficient evidence that, if there was a

conspiracy as alleged, it was for anything other than murder. There was evidence that

defendant was in a feud with Barrera, Perez’s son-in-law. Perez was related by marriage

to Valle’s wife. On the evening of the shootings, defendant and Saavedra ambushed

Perez and Barrera at an intersection near Perez’s home, and Saavedra fired a gun at

Perez’s car. Then, defendant and Saavedra drove to Valle’s house and, using a rifle and a

handgun, together fired approximately 30 bullets into the house, perforating the walls

from floor to ceiling and the house from front to back. No reasonable juror could have

found from the foregoing evidence that defendant and Saavedra did not conspire to kill

someone but conspired only to assault someone with a firearm or to shoot at the Valle

residence (§§ 240, 254, subd. (a)(2)), or shoot at an inhabited dwelling (§ 246).

       Furthermore, defendant did not claim at trial that he committed the two lesser

offenses. Rather, defendant testified he did not conspire with Saavedra to commit any

offense at all. Instead, Saavedra abruptly fired the handgun at Perez’s car without there

being any agreement or discussion with defendant. The Valle shooting occurred because

someone fired on defendant and Saavedra first. Because substantial evidence was

lacking to support an instruction on either allegedly lesser target offense, the trial court

was not required to instruct the jury on them.




                                              21
       Defendant’s federal constitutional claim also fails because defendant’s asserted

offenses were not necessarily included within the charged offense of conspiracy or

supported by substantial evidence. (People v. Valentine (2006) 143 Cal.App.4th 1383,

1386-1388 [rejecting claim that failure to instruct on an offense not necessarily included

within the charged offense violated defendant’s right to present a complete defense, as

that failure “simply reflected the fact that the prosecutor chose not to file on the other

charge.”].) Our Supreme Court has also made clear that the failure to instruct on a

necessarily included offense in a noncapital case is remediable only under state law, not

under federal constitutional law. (See People v. Breverman (1998) 19 Cal.4th 142, 165

[no federal constitutional right to a necessarily included offense instruction in a

noncapital case].)

       F. Harmless Error

       Finally, if there was any error in not instructing on conspiracy to commit assault

with a firearm or conspiracy to shoot at an inhabited dwelling, it was harmless because it

was not reasonably probable a more favorable verdict would have occurred but for the

error. (People v. Breverman, supra, 19 Cal.4th at p. 162, citing People v. Watson (1956)

46 Cal.2d 818, 836; People v. Lasko (2000) 23 Cal.4th 101, 111.) The record establishes

that the jury based defendant’s conviction for conspiracy to commit murder on the Valle

shooting, because the jury specifically found that defendant personally and intentionally

discharged a firearm in committing that offense.




                                              22
       Also, there was overwhelming evidence supporting defendant’s conviction for

conspiracy to commit murder. Defendant admitted at trial that he and Saavedra were

armed when they went to the Valle residence. A witness testified that both people shot at

the house and that defendant, the heavier person, was shooting the rifle. The shell

casings at the scene had been fired from defendant’s rifle. Defendant presented his

chosen defense by testifying at trial that he did not conspire to commit any crime and he

shot at the Valle residence only in response to being fired upon. Defendant did not

request an instruction on either lesser conspiracy offense and instead argued that the

evidence raised a reasonable doubt of his guilt of conspiracy as charged or was otherwise

insufficient to establish guilt. (See People v. Rogers (2006) 39 Cal.4th 826, 872.)

       Since the record demonstrates that the conspiracy conviction was based on the

Valle shooting and was supported by substantial evidence, any error in failing to instruct

the jury on the allegedly lesser conspiracy offenses was also harmless, because the

evidence did not support a finding that defendant committed either lesser conspiracy

offense instead of conspiracy to commit murder. No reasonable juror would have found

defendant guilty of any conspiracy crime less than conspiracy to commit murder.

                                             IV

                            SELF-DEFENSE INSTRUCTION

       Although defendant agreed the trial court should not give his requested instruction

on self-defense, he now argues the trial court erred. The trial court did not include a self-

defense instruction in its final instructions and defendant argued to the jury that defendant



                                             23
and Saavedra had not intended or conspired to commit murder at the Valle residence but

that Saavedra had instead simply returned fire. In spite of defendant’s forfeiture of this

issue, the trial court was not required to give that instruction because it duplicated other

instructions given and it would have confused the jury with irrelevant issues.

       The doctrine of invited error prohibits a reversal on appeal because of an error

made by the trial court at defendant’s behest. (People v. Wickersham (1982) 32 Cal.3d

307, 323-324, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186,

201.) While defendant initially requested a self-defense instruction, he explicitly agreed

with the trial court’s explanation why the instruction should not be given because the

instruction was inconsistent with his defense. A trial court has a sua sponte duty to

instruct the jury on any defense upon which the defendant relies or that which is

supported by substantial evidence and is not inconsistent with the defense theory of the

case. (People v. Anderson (2011) 51 Cal.4th 989, 996, citing People v. Gutierrez (2009)

45 Cal.4th 789, 824.) Defendant’s self-defense claim was an attempt to negate or rebut

the prosecution’s proof on an element of the charged offense of conspiracy. A jury

finding of self-defense would have rendered the prosecution’s case legally insufficient or

exceedingly weak. Because defendant’s claim of self-defense was proffered to negate or

rebut an element of the conspiracy charge, the trial court had no sua sponte duty to give

it; rather, a request was necessary. (Anderson, supra, at p. 996; see People v.

Covarrubias (2016) 1 Cal.5th 838, 874 [trial court not required to sua sponte instruct jury

on claim-of-right defense that served only to negate mental state element of charged



                                             24
offense of robbery].) The record shows defendant functionally withdrew his self-defense

instruction request. Defendant’s claim of error is therefore forfeited. (People v. Ramirez

(2006) 39 Cal.4th 398, 474.)

       Notwithstanding forfeiture, the trial court was correct not to instruct the jury on

self-defense. A court has a duty to refrain from issuing an instruction that is duplicative

of other instructions or potentially confusing. (People v. Gurule (2002) 28 Cal.4th 557,

659; see People v. Satchell (1971) 6 Cal.3d 28, 31, fn. 10, overruled on other grounds in

People v. Flood (1998) 18 Cal.4th 470, 484-490.) Here, the instruction would have been

duplicative. The trial court fully instructed the jury on the elements of conspiracy and the

target offense of murder. To convict, the jury had to find defendant and Saavedra

intended to conspire to commit murder. Defendant’s contrary claim would have, if

believed by the jury, negated the intent element of conspiracy and compelled acquittal.

But if the jury found defendant and Saavedra conspired to commit murder, that finding

would have contradicted any form of self-defense, perfect or imperfect. The trial court’s

instructions on the offense of conspiracy therefore encompassed defendant’s self-defense

claim, rendering any self-defense instruction superfluous and unnecessary. (See People

v. Canizalez (2011) 197 Cal.App.4th 832, 857 [pinpoint instructions unnecessary where

standard instructions fully and adequately advise the jury on a particular issue].) The

jury, of course, is presumed to have understood and correctly applied the instructions

given. (People v. Carey (2007) 41 Cal.4th 109, 130.) A self-defense instruction would

have confused the jury by introducing irrelevant legal principles about the reasonableness



                                             25
of the need to use and extent of deadly force. Therefore, the trial court did not err in not

giving a self-defense instruction. (See People v. Watie (2002) 100 Cal.App.4th 866,

883.)

        Furthermore, any error was harmless. In convicting defendant, the jury found that

defendant agreed and intended to commit murder, a factual finding incompatible with any

form of self-defense, perfect or imperfect. Having previously agreed to commit murder,

defendant cannot then claim his intent to kill arose from a belief in the need to defend

himself or someone else. The jury’s conspiracy verdict “necessarily impl[ies] a complete

rejection of all the self-defense evidence presented by defendant.” (People v. Crandell

(1988) 46 Cal.3d 833, 875, disapproved on another ground in People v. Crayton (2002)

28 Cal.4th 346, 364-365.) There is no reasonable probability a self-defense instruction, if

given, would have resulted in a more favorable outcome for defendant. Any error was

thus harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.)4




        4 The absence of a self-defense instruction also did not violate defendant’s federal
constitutional right to present a complete defense. Not only was the instruction irrelevant
and confusing, defendant was still able to present the defense he chose. No federal
constitutional violation occurred.


                                             26
                                               V

             SUBSTANTIAL EVIDENCE OF FIREARM ENHANCEMENT

       Defendant next argues substantial evidence does not support the jury’s finding that

he personally and intentionally discharged a firearm in the commission of the offense of

conspiracy to commit murder.5 According to defendant, the jury had to find the gun

discharge aided in the completion of an element of conspiracy and the shooting at the

Valle residence could not have aided in completing a conspiracy element because the

crime of conspiracy was already completed at the time. However, section 12022.53,

subdivision (c), does not require that a gun discharge aid in the completion of a

conspiracy element, as defendant argues. The statute requires only that the gun discharge

be a part of the same continuous transaction of which the underlying offense is a part.

       Defendant’s claim involves a question of statutory interpretation on the meaning

of the phrase “in the commission of” as used in the firearm enhancement statute, which is

subject to de novo review. (People v. Prunty (2015) 62 Cal.4th 59, 71.) If clear and

unambiguous, the statutory language is effectuated without resort to statutory

construction; otherwise, it is construed within the context of the statutory scheme of

which it is a part, and in a manner that best fulfills legislative intent. (People v. Pieters

(1991) 52 Cal.3d 894, 898-899.) This court reviews the sufficiency of the evidence to

support a firearm enhancement finding using the same standards applicable to a criminal

conviction. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058 (Carrasco).) We

       5That finding resulted in an additional, consecutive, 20-year prison term for
defendant. (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8).)

                                              27
presume every fact in support of the judgment the trier of fact could have reasonably

deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.)

       Defendant challenges whether section 12022.53 applies to conspiracy to commit

murder. Section 12022.53, subdivision (a), includes among the offenses specified “[a]ny

felony punishable by death or imprisonment in the state prison for life.” (§ 12022.53,

subd. (a)(17).) Conspiracy to commit murder is punishable by life in prison. (See

§§ 190, subd. (a) [first degree murder punishable by death or life imprisonment], 182,

subd. (a)(6) [conspiracy to commit an offense is punishable “in the same manner and to

the same extent as is provided for the punishment of that felony.”].) Section 12022.53,

subdivision (a), thus clearly and unambiguously includes conspiracy to commit murder.

       In particular, section 12022.53, subdivision (c), provides as follows:

“Notwithstanding any other provision of law, any person who, in the commission of a

felony specified in subdivision (a), personally and intentionally discharges a firearm,

shall be punished by an additional and consecutive term of imprisonment in the state

prison for 20 years.” The express legislative purpose was to effect deterrence by

imposing longer sentences for violent crimes committed with a firearm. (People v.

Garcia (2002) 28 Cal.4th 1166, 1172.) The statute “is to be construed expansively, not

narrowly.” (People v. Frausto (2009) 180 Cal.App.4th 890, 898 (Frausto); People v.

Chambers (1972) 7 Cal.3d 666, 672.)




                                            28
        The Court of Appeal held in Frausto, that “a firearm is discharged ‘in the

commission of’ a felony within the meaning of section 12022.53[, subdivision] (d) if the

underlying felony and the discharge of the firearm are part of one continuous transaction,

including flight after the felony to a place of temporary safety.” (Frausto, supra, 180

Cal.App.4th at p. 902; see People v. Mejia (2012) 211 Cal.App.4th 586, 616, fn. 5

[§ 12022.53, subd. (c) requires only that the firearm discharge be part of the same

continuous transaction as the underlying offense].) Under this approach, “the discharge

of a gun before, during, or after the felonious act may be sufficient if it can fairly be said

that [it] was a part of a continuous transaction.” (Frausto, supra, at p. 902.)

        A reasonable juror could have found from the trial evidence that defendant and

Saavedra conspired to commit murder when they drove to the Valle residence and

together fired more than 30 bullets into the residence. Based on this, a reasonable juror

could have found that defendant’s act of firing a rifle into the residence was part of the

same continuous transaction as was his commission of the offense of conspiracy to

commit murder. Defendant thus discharged his firearm in the commission of the

conspiracy, triggering the section 12022.53, subdivision (c), firearm enhancement.

(People v. Jones (2001) 25 Cal.4th 98, 108-110; Frausto, supra, 180 Cal.App.4th at p.

902.)

        The cases of Carrasco, supra, 137 Cal.App.4th 1050 and People v. Masbruch

(1996) 13 Cal.4th 1001 do not establish a requirement that the firearm use aid defendant

in completing an essential element of conspiracy to commit murder. Instead these cases



                                              29
describe how a defendant can be deemed to have used a firearm in the commission of a

felony if the firearm use “aids the defendant in completing one of [the charged offense’s]

essential elements.” (Carrasco, supra, at p. 1059; Masbruch, supra, at p. 1012.)

Carrasco and Masbruch involved situations in which the defendant initially displayed or

used a firearm but committed the charged offenses some time later without displaying or

using the gun. Both cases held that the defendants’ initial use of the firearm carried over

to the time of the offenses, so that such use could be deemed to have been “in the

commission of” the offenses for firearms enhancement purposes because “[a] firearm use

enhancement attaches to an offense, regardless of its nature, if the firearm use aids the

defendant in completing one of its essential elements.” (Masbruch, supra, at p. 1012;

Carrasco, supra, at p. 1059.) In Carrasco, the initial display or use of the gun satisfied

the force or fear element of the charged offense of robbery (Carrasco, supra, at pp. 1057,

1060); in Masbruch, it satisfied the force or fear element of forcible rape and sodomy

(Masbruch, supra, at p. 1011). Neither Carrasco nor Masbruch established a uniform

requirement that the firearm use must have aided the defendant in completing an essential

element of the charged offense.

       Instead, the California Supreme Court has rejected such a construction of the

weapons enhancement statutes. (People v. Jones, supra, 25 Cal.4th at pp. 101-102, 109-

111; People v. Fierro (1991) 1 Cal.4th 173, 225-227.) There is no requirement that the

gun use specifically aid the defendant in committing an offense element. Instead, all that

is required is that the firearm use be part of the same continuous transaction as the



                                             30
underlying offense. (Jones, supra, at pp. 108-110; Frausto, supra, 180 Cal.App.4th at p.

902.) Here, defendant’s firing of the bullets into the Valle residence was part of the same

continuous transaction as was his conspiracy to commit murder.

       Second, the fact defendant’s discharge of the firearm was part of the same

continuous transaction as the conspiracy itself renders invalid defendant’s claim that the

conspiracy was already completed at the time of the discharge. (People v. Jones, supra,

25 Cal.4th at pp. 108-110; Frausto, supra, 180 Cal.App.4th at p. 902.) The “‘classic

example of a continuing offense is conspiracy.’” (Wright v. Superior Court (1997) 15

Cal.4th 521, 537, quoting U. S. v. McGoff (D.C. Cir. 1987) 831 F.2d 1071, 1078.)

Because conspiracy is by nature a continuing offense, the period during which a firearms

enhancement may attach to such an offense is “very broad.” (See People v. Becker

(2000) 83 Cal.App.4th 294, 298.) Here, defendant’s conspiracy to commit murder was

still operative and continuing at the time defendant fired his gun into the Valle residence.

Defendant’s violent and dangerous behavior is what section 12022.53, and the other

firearm enhancement statutes, is intended to deter. Substantial evidence supports the

jury’s finding that defendant personally and intentionally discharged a firearm in the

commission of conspiracy to commit murder.




                                             31
                                              VI

                               FIREARM ENHANCEMENT

       During sentencing, the trial court imposed a 20-year sentence enhancement on

count 1 under section 12022.53, subdivision (c), for personal and intentional discharge of

a firearm. On October 11, 2017, the Governor signed Senate Bill No. 620, amending

section 12022.53, subdivision (h). This amendment provides the trial court with new

discretion under section 1385 to strike the section 12022.53, subdivision (c), firearm

enhancement. The amendment became effective January 1, 2018.

       While the instant appeal was pending, and after enactment of Senate Bill No. 620,

this court permitted the parties to file supplemental briefing on the issue of whether

amended section 12022.53, subdivision (h), applies retroactively to defendant’s case. In

their supplemental briefs, the parties agree, as does this court, that recently amended

section 12022.53, subdivision (h), applies retroactively to this case, because the judgment

was not final when the amendment to section 12022.53, subdivision (h), became

effective. We agree with the parties that this matter should therefore be remanded for the

purpose of allowing the trial court to exercise its discretion as to whether to strike

defendant’s section 12022.53, subdivision (c), firearm enhancement.




                                              32
                                             VII

                                       DISPOSITION

       The judgment of conviction is affirmed. The judgment of sentence is reversed and

this matter is remanded to the trial court for resentencing, with instructions to the trial

court to (1) strike the one-year section 12022, subdivision (a)(1), enhancement as to the

assault with a firearm count (count 4); (2) stay under section 654 the one-year section

12022, subdivision (a)(1), enhancement as to the conspiracy count (count 1); (3) elect

under section 654 to stay separate punishment either on count 2 or count 5; and (4)

exercise its discretion under recently amended section 12022.53, subdivision (h), as to

whether to strike defendant’s section 12022.53, subdivision (c), firearm enhancement

(count 1).6

       CERTIFIED FOR PARTIAL PUBLICATION


                                                                  CODRINGTON
                                                                                              J.

We concur:


RAMIREZ
                        P. J.


MILLER
                           J.




       6 We express no opinion as to how the trial court should exercise its discretion
under section 12022.53, subdivision (h), on remand.

                                              33
