Filed 10/19/16




                      CERTIFIED FOR PARTIAL PUBLICATION*


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                   F069243
        Plaintiff and Respondent,
                                                     (Tulare Super. Ct. No. VCF247072)
                 v.

JOSE MANUEL REYES-TORNERO,                                       OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Tulare County. Brett R.
Alldredge, Judge.
        Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd
Marshall, 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 part[s] I through IV of the Discussion.


                            SEE CONCURRING OPINION
                                     INTRODUCTION
       Defendant/appellant Jose Manuel Reyes-Tornero approached four men at an
outdoor card game. He pointed a gun at each of them and demanded their wallets. One
of the men, Efren Cisneros,1 refused to surrender his wallet and a struggle ensued
wherein defendant shot Efren, causing great bodily injury. None of the other three card
players were injured.
       Defendant was convicted of four counts of assault with a firearm, among other
crimes. The jury found true allegations that defendant had inflicted great bodily injury
(GBI) on Efren specifically with respect to each of the four assaults.
       Defendant contends that Penal Code section 6542 prohibits multiple punishment
on multiple great bodily injury enhancements relating to the same injuries to the same
individual. Citing People v. Oates (2004) 32 Cal.4th 1048 (Oates), the Attorney General
responds that the “multiple victim” exception to section 654 applies because there were
multiple victims of the several assaults to which the GBI enhancements were attached.
       Under Oates, the relevant “act[s] or omission[s]” are the assaults and the GBI
enhancements “simply follow from” those assaults. And because there were multiple
victims of the assaults, the multiple victim exception to section 654 applies and multiple
punishment is permitted. We affirm the judgment.3
                                      BACKGROUND
       On February 27, 2012, a second amended information charged defendant with
attempted murder (count 1; § 664/187, subd. (a)); four counts of robbery (counts 2–5;

       1 One of the assault victims, Jose Huerta Ramos, is sometimes referred to as
“Huerta” and other times, “Ramos.” Efren testified that his last name is Cisneros but also
uses the last initial “V.” To avoid confusion we refer to the victims by their first names;
no disrespect is intended.
       2   All future statutory references are to the Penal Code unless otherwise noted.
       3
       In the unpublished portion of the opinion we reject several additional claims
made by defendant.


                                              2.
§ 211); four counts of assault with a firearm (counts 6–9; § 245, subd. (a)(2)); and two
counts of false personation (counts 10–11; § 529). The information alleged that, in
committing the attempted murder and robberies, defendant personally and intentionally
discharged a firearm causing great bodily injury. (§ 12022.53, subds. (b)–(d).) The
information also alleged that in the commission of the assaults (counts 6–9), defendant
personally inflicted great bodily injury on Efren.4 (§ 12022.7, subd. (a).)
       Defendant pled no contest to the false personation counts. The remaining counts
were tried to a jury, which eventually deadlocked resulting in a mistrial. A second jury
trial began on November 4, 2013. The second jury convicted defendant on all counts and
found the enhancement allegations true.
       The court sentenced defendant to the following prison terms: 10 years each for
counts 6, 7, 8 and 9, which included three years for assault, plus four years for the firearm
enhancement (§ 12022.5), plus three years for the great bodily injury enhancement
(§ 12022.7);5 a consecutive term of seven years to life on count 1, plus a consecutive
term of 25 years to life for the firearm causing great bodily injury enhancement
(§ 12022.53, subd. (d)); 28 years to life each for counts 2, 3, 4, and 5.6 No prison time
was imposed on counts 10 and 11.
                                            FACTS
       For years leading up to December 4, 2010, Nazario Hernandez had hosted card
games at his home about three times a week.




       4   Efren was identified by the initials E.V. in the information. (See fn. 1, ante.)
       5The sentence on count 6 was stayed pursuant to section 654 and the sentences on
count 8 and 9 were to run concurrent to the sentence on count 7.
       6The sentence on count 3 was to run consecutively to the sentence on count 2; the
sentence on count 2 was to run concurrently to count 1; and the sentences on counts 4 and
5 were to run concurrently with the sentence on count 2.


                                               3.
       Events of December 4, 2010
       One of these card games took place outside Nazario’s trailer on December 4,
2010. In attendance at the outdoor card game were Jose Ramos, Efren Cisneros, Ignacio
Martinez, and Nazario Hernandez. Other individuals were playing another card game
inside the trailer.
               Efren’s Account
       Around 8:00 or 8:30 p.m., Efren first noticed a man about three or four feet from
the card table. Nazario was walking towards his trailer when the man “asked” for his
money. Nazario thought the man was “playing” and “didn’t pay any attention.”
       Then, the man came to where Efren was playing cards with Jose and Ignacio. The
man had a gun and was covering his “head” with his sweatshirt. The man fired a warning
shot at the ground, then threatened Jose and Ignacio with the gun by “put[ting] it behind
them or on their head.” The man told them, in Spanish, that he wanted their money.
There was about $250 or $300 from the card game on the table. Jose and Ignacio said
they would give him the money, but refused to give him their wallets.
       The man then came towards Efren and pointed the gun at him. Efren also told the
man that he could have the money but not his wallet. The man shot Efren below his right
eye, next to his nose. Efren “guess[ed] he got frustrated from what I was saying so then I
turned around and that is when I was shot….” Efren then got up and tried to grab the
man. During the short struggle, the man’s face became uncovered and Efren got a good
look at him. The man then shot Efren three more times. Efren saw the man take the
money that had been on the table and left. Efren then drove himself to the hospital.
       At trial, Efren identified defendant as the shooter.
               Ignacio’s Account
       At some point during the evening of December 4, 2010, a man with a black coat
covering half his face approached the card game. The man stood behind Ignacio and
silently watched the card game for “about 1 minute.” Ignacio did not think it was

                                             4.
unusual to see someone he did not know because “a lot of people go” to Nazario’s card
games.
       After watching the game for a minute, the man pulled out a gun “like a revolver”
and demanded money. The man spoke only in Spanish. Ignacio thought the man was
joking until he fired a warning shot. The man pointed the gun at Jose’s head and said he
would shoot him unless they gave him the money and their wallets. Efren tried to grab
the gun, and the two “started scuffling.” During the scuffle, the gunman’s face became
fully visible. Ignacio then heard three or four gunshots. The gunman “ran out” but
returned to get the money on the table. Ignacio estimated there had been $80 or $120 on
the table.
       In court, Ignacio identified defendant as the gunman.
                Jose’s Account
       Jose testified while in custody for drug possession and methamphetamine use.
       While Jose was playing cards, a man “came in and started looking around.” The
man pulled out a gun, pointed it at Jose and told him to put his money on the table.7 The
man said, “I’m not playing around asshole.” The gunman also asked for wallets, so Jose
put his wallet on the table. He told Jose to pull out the money from his wallet, but Jose
responded that he did not have money in the wallet. The gunman told Jose to pull money
out of his pockets, so Jose retrieved $20 or $35. Jose could not see the gunman’s entire
face because he “had a jacket zipped up to the top.”
       Next, the gunman went to Ignacio and made the same demands. Ignacio “put his
things on the table.” At some point, the gunman said, “I am not playing around. If you
don’t give it to me I am going to kill you, asshole.”




       7   Jose’s actual testimony was that the gunman “placed [the gun] on my head….”


                                             5.
       Efren told the gunman, “[T]hat’s all we have here.” The gunman told Efren to
“shut up” and to put his money on the table. Efren “stood up to try to go for his gun” and
was shot. Efren and the gunman fought. The gunman grabbed the money before he left.8
       At trial, Jose said he was not able to see the gunman’s face “too well.” The
prosecution then asked Jose whether he had testified at the preliminary hearing that he
could see the gunman’s face “more or less.” Jose said he did not remember, but
“perhaps” he had said that.
       Nonetheless, Jose testified at trial that he “think[s]” defendant was the gunman.
              Nazario’s Account
       Sometime after 7:00 or 8:00 p.m., on December 4, 2010, a man with a gun and a
sweater covering his face appeared. At the time, Nazario was “beside” the other three
men playing cards. The man “put the gun to everybody’s head” and demanded their
wallets. Nazario thought the man was joking and made a swiping gesture as if to “shoo”
him away. Nazario did not give the man his wallet. The man and Efren began “fighting”
and the two fell to the ground. Nazario “got up” and did not see the shots that were fired.
       Nazario testified at trial that he did not see the shooter’s face.
       Nazario said he did recall testifying twice in the past on this case. The prosecutor
then asked whether Nazario recalled having previously identified defendant, in court, as
the man who was “there that night December 4th.” Nazario said he did not recall so
testifying.
       Events after December 4, 2010
              Photographic Lineups
       Jose, Efren, Nazario and Ignacio each identified defendant as the shooter in
photographic lineups shown to them by Detective Frank Zaragoza.9

       8From Jose’s testimony, it is not clear if “the money” refers to the card game
money, the money the men had emptied from their pockets, or both. When asked how
much money had been on the table, Jose testified, “$30, 35. I don’t remember too well.”


                                              6.
                Efren’s Injuries
       Efren was hospitalized for seven days. Two bullets were removed from his body,
and two bullets were left in his body.
                Defendant’s Arrest and Interrogation
       Defendant was arrested on January 13, 2011. Detective Zaragoza interrogated
defendant that day. An audio recording of the interrogation was played for the jury.
Defendant told Zaragoza that he “wasn’t in town” on December 4, 2010.10
                Cell Phone Records
       A Sprint telephone records custodian testified that cellular calls are generally
routed to cell phone towers that are two to 10 miles from the phone’s location. However,
if a tower is “over-capacitated” then a call would be routed to the closest open tower,
which could be outside the two to 10-mile range.
       The records custodian testified that the cell phone number belonging to “Eric
Contreras”11 was involved in a phone call at 8:22 p.m. on December 4, 2010. That call
originated on tower number 174, which is located in Tulare.
                Defendant’s Case
       Defendant’s uncle, Rogelio Reyes (Reyes), testified that he went to Nazario’s
trailer on a regular basis in 2010 and was there on the night of December 4, 2010. Reyes
saw the gunman but could not see his face because it was partially covered by a jacket or
sweater.



       9  Nazario was initially hesitant to cooperate with the photographic lineup.
However, he eventually selected defendant’s photograph. At trial, Nazario initially
testified that he recalled being shown the photograph lineups, but shortly thereafter said
he did not “remember if I saw them or not, I don’t remember.”
       10   Defendant’s interview is described in further detail below.
       11
        The parties stipulated that, at the time of these events, defendant went by the
name Eric Gil Contreras.

                                              7.
       Reyes said the gunman was “more or less like my size” except “a bit less fat than
myself.” Reyes testified he was 5 feet 7 inches tall. Reyes said defendant was not the
gunman. The gunman did not have defendant’s “figure.”
       The defense called an expert witness on eyewitness identification. The expert
testified that eyewitness identifications of strangers are unreliable.
                                         DISCUSSION

I.     There is Substantial Evidence Defendant Inflicted Great Bodily Injury on
       Efren “In the Commission of” His Assaults on Jose, Ignacio, and Nazario
       Defendant was convicted of assaulting Efren (count 6), Jose (count 7), Ignacio
(count 8), and Nazario (count 9). As to each of the assaults, the jury found that defendant
personally inflicted great bodily injury on Efren. Defendant does not challenge the great
bodily injury enhancement with respect to the assault on Efren (i.e., count 6). Rather, he
argues that the assaults on Jose, Ignacio and Nazario “did not result in any injuries being
inflicted on Efren, and each assault was complete when the robber stopped pointing the
gun at the other men.” As a result, he contends there was insufficient evidence
supporting the GBI enhancements to the assaults on Jose, Ignacio and Nazario (i.e.,
counts 7, 8, and 9). We disagree.
       A.       Standard of Review
       “Whether great bodily injury occurred is a question of fact, and we review a jury’s
finding of great bodily injury under the substantial evidence standard.” (People v. Le
(2006) 137 Cal.App.4th 54, 59.) “[W]e review the record in the light most favorable to
the prosecution and may not reverse the judgment if any rational trier of fact could have
found the essential elements of the enhancement beyond a reasonable doubt.” (People v.
Frausto (2009) 180 Cal.App.4th 890, 897.) “A finding that the victim suffered great
bodily injury must be upheld on appeal if supported by substantial evidence, even if the


          See footnote, ante, page 1.


                                              8.
circumstances could also be reconciled with a contrary finding.” (People v. Bustos
(1994) 23 Cal.App.4th 1747, 1755.)
       “[O]ur consideration of the sufficiency of the evidence in this case also requires us
to construe the applicable statute. For this task, we apply a de novo standard of
review….” (People v. Frausto, supra, 180 Cal.App.4th at p. 897.)

       B.     Defendant Inflicted GBI on Efren “In the Commission of” His Assaults on
              the Other Victims
       “Any person who personally inflicts great bodily injury on any person other than
an accomplice in the commission of a felony or attempted felony…” is subject to a
sentence enhancement. (§ 12022.7, subd. (a).) The issue here is whether Efren’s injuries
were inflicted “in the commission of” the assaults on Jose, Ignacio and Nazario.
       Courts construe the phrase “in the commission of” broadly. (People v. Elder
(2014) 227 Cal.App.4th 411, 422–423.)
       Similar language concerning the commission of a felony appears in several
statutes and conveys the same meaning. (People v. Jones (2001) 25 Cal.4th 98, 108,
fns. 4 & 6, 109 (Jones); People v. Contreras (1997) 55 Cal.App.4th 760, 764.) For
example, in In re Tameka C. (2000) 22 Cal.4th 190, the Supreme Court interpreted the
same language used in section 12022.5. That enhancement applies when a person uses a
firearm “in the commission of” a felony or attempted felony. (§ 12022.5, subd. (a).) The
court interpreted “in the commission of” to mean “during and in furtherance of ….”
(Tameka C., supra, 22 Cal.4th at pp. 197–198.) The court also drew on precedent which
interpreted another statute’s use of the phrase “in the commission of” to mean “tak[ing]
place during the underlying crime and … hav[ing] some ‘facilitative nexus’ to that
offense.” (Id. at p. 197.)
       Defendant essentially argues that the infliction of GBI on Efren did not take place
“during” the assaults on Jose, Ignacio and Nazario because those assaults were completed
when the gun was no longer pointed at them. We disagree.


                                             9.
       “Section 245, subdivision (a)(2), punishes ‘[a]ny person who commits an assault
upon the person of another with a firearm.’ ” (People v. Licas (2007) 41 Cal.4th 362,
366.) “Assault with a deadly weapon can be committed by pointing a gun at another
person [citation], but it is not necessary to actually point the gun directly at the other
person to commit the crime.” (People v. Raviart (2001) 93 Cal.App.4th 258, 263.) A
defendant commits assault when he, acting with the requisite intent, draws and holds a
gun in such a position that he could use the weapon before the victim could defend
himself, even if the gun is not pointed at the victim. (Ibid., quoting People v. McMakin
(1857) 8 Cal. 547.) Similarly, a defendant also commits assault when he points a gun
between two victims, but not at either victim. (People v. Raviart, supra, 93 Cal.App.4th
at p. 264, citing People v. Thompson (1949) 93 Cal.App.2d 780.)
       Based on these examples of assault with a deadly weapon, we conclude there was
substantial evidence defendant’s assaults on Jose, Nazario, and Ignacio were still ongoing
when he inflicted GBI on Efren. Though the defendant may have satisfied the elements
of assault with a deadly weapon the moment he pointed the gun at each individual, it does
not follow that each assault ended the moment he pointed the gun at someone else. To
the contrary, even when the gun was pointed at Efren, defendant could have quickly used
it against the other assault victims.12 Consequently, we conclude that defendant inflicted
GBI on Efren “in the commission” of the assaults on Jose, Nazario, and Ignacio.




       12 There was conflicting testimony regarding whether Nazario was sitting down at
the game when the assault occurred. However, because there is substantial evidence that
Nazario was sitting down at the card game, it is irrelevant that there was also some
contrary evidence he was walking towards the trailer. Nazario himself testified that he
“was sitting there” when the struggle between Efren and defendant occurred, and that he
“then … stood up.”


                                              10.
II.    The Trial Court did not Commit Reversible Error in Denying Defendant’s
       Marsden Motion
       On March 8, 2012, defendant’s first trial ended in a deadlocked jury and mistrial.
Defendant’s second trial in 2013 resulted in convictions on all counts. Defendant made
two Marsden13 motions before his first trial, the details of which are provided below.
The record discloses no Marsden motions made after the first trial.
       On August 11, 2011, a Marsden hearing was held wherein defendant expressed
dissatisfaction with his counsel. Defendant asserted that his attorney had not interviewed
witnesses. Counsel responded that defendant’s true desire was to have him to try to elicit
statements from witnesses that contradict their testimony at the preliminary hearing.
Counsel said he was “hesitant to do that for a variety of strategic purposes.” He was
concerned that if the witnesses confirmed what they said at the preliminary hearing, it
would reinforce damaging testimony.
       Earlier on the day of the Marsden hearing, defendant had requested that an
investigator interview the witnesses “using a different name” for defendant: Mr. Reyes.
Defendant wondered if the witnesses “would respond … differently” if the name “Mr.
Reyes” was used. Counsel said he was willing to do that within the next five to seven
days. The court suggested continuing the matter for “about two weeks and let’s see if it
gets done.” Defendant responded, “Yeah. That’s perfect. If it gets done, I’m not asking
for new counsel.”
       Another Marsden hearing was held on December 8, 2011. Defendant asserted that
counsel said he would provide him a copy of his “legal paperwork,” but had not done so.
Counsel responded, “I spent hours a while back copying everything, redacting things. I




          See footnote, ante, page 1.
       13   People v. Marsden (1970) 2 Cal.3d 118.


                                            11.
made a stack that was very thick and I sent it off to the jail and I don’t know why he does
not have that.”14 Counsel said he would make another set of the paperwork that day.
       Defendant also said he had only spoken with counsel once outside of court within
an 11-month period. The court asked defendant several follow up questions, the answers
to which indicated that defendant had been interviewed at the jail once by a defense
investigator and another time by counsel.
       Defendant also said that counsel had spoken to him “offensively.” The court
observed that sometimes an attorney “has to tell a client things.” Defendant replied, “He
doesn’t have to tell me to sit the f**k down.” Counsel did not respond to defendant’s
clear implication that he had used profanity.
       The court denied defendant’s Marsden motion.
       A.     Standard for Marsden Motions
       “When a defendant seeks to obtain a new court-appointed counsel on the basis of
inadequate representation, the court must permit her to explain the basis of her contention
and to relate specific instances of inadequate performance. The court must appoint a new
attorney if the record clearly shows the current attorney is not providing adequate
representation or that the defendant and counsel have such an irreconcilable conflict that
ineffective representation is likely to result. [Citations.] If the court holds an adequate
hearing, its ruling is reviewed for abuse of discretion. [Citation.]” (People v. Rodriguez
(2014) 58 Cal.4th 587, 623.)
       The Supreme Court has explained that “the decision whether to permit a defendant
to discharge his appointed counsel and substitute another attorney during the trial is
within the discretion of the trial court,” that “a defendant has no absolute right to more


       14 Counsel also said that he had previously sent defendant discovery in the case
and that defendant had sent the discovery to people in another state. For that reason,
counsel was “hesitant” but nonetheless spent hours making a copy of all the discovery
and sending it to defendant.


                                             12.
than one appointed attorney,” and that a trial court is not bound to accede to a request for
substitute counsel unless the defendant makes a “ ‘ “sufficient showing ... that the right to
the assistance of counsel would be substantially impaired” ’ ” if the original attorney
continued to represent the defendant.” (People v. Sanchez (2011) 53 Cal.4th 80, 87.)
       B. Analysis
       Counsel’s purported failure to transmit paperwork to defendant does not warrant
the granting of a Marsden motion. Counsel said he did copy and send the paperwork
though, for some unknown reason, defendant did not receive it. The trial court was
entitled to credit counsel’s representations. (See People v. Myles (2012) 53 Cal.4th 1181,
1207; see also, e.g., People v. Perez (1992) 4 Cal.App.4th 893, 904–905 [reviewing court
considered implied findings on Marsden motion].) Counsel’s account of the paperwork
issue, if credited, shows there was no irreconcilable conflict or deficient representation.
       And “[a]s for defendant’s complaint that counsel rarely visited him, such an
allegation does not justify substitution of counsel.” (People v. Myles, supra, 53 Cal.4th at
p. 1208.)
       Finally, defendant claims the court did not adequately inquire into defendant’s
allegation that counsel told him to “sit the f**k down.” It is true that “[i]f the defendant
states facts sufficient to raise a question about counsel’s effectiveness, the court must
question counsel as necessary to ascertain their veracity.” (People v. Eastman (2007) 146
Cal.App.4th 688, 695, abrogated on another point in People v. Sanchez (2011) 53 Cal.4th
80, 90, fn. 3.) But even if the court erred in failing to question counsel concerning the
alleged comment, we conclude any such error was harmless beyond a reasonable doubt.
       Even when a defendant is denied a Marsden hearing altogether, prejudice must be
shown to warrant reversal. (See People v. Washington (1994) 27 Cal.App.4th 940. 944;
see also People v. Chavez (1980) 26 Cal.3d 334, 348–349.) After defendant’s Marsden
motion was denied, a jury trial was held and a mistrial declared. Ahead of the second
trial, defendant did not make or renew his Marsden motion. This fact indicates that any

                                             13.
conflict evidenced by the earlier alleged comment by counsel was not irreconcilable.
(See People v. Myles, supra, 53 Cal.4th at pp. 1207–1208.)
III.     Defendant’s Ineffective Assistance of Counsel Claim Lacks Merit15
         A.       Background
         Detective Zaragoza interrogated defendant on January 13, 2011. Audio of the
interrogation was admitted into evidence.
         Defendant contends his trial counsel was ineffective for failing to seek redaction
of comments and questions posed by detectives which suggested defendant had a legal
obligation to prove his innocence.
         Defendant relies on the following portions of the interrogation in support of his
claim:

                “Det. Torres:          If you didn’t shoot him, were you there when he
         got shot?

                “[Defendant]:         No, man, I’m telling you, I wasn’t there that day
         that he got shot, okay, I heard that he got shot, because dudes known in
         town okay, my grandpa knows the dude … I found, right away, found the
         next day that he got shot…”

                “Det. Zaragoza:       Well, you told me that the following day you
         heard that Al Pini got shot.

                  “[Defendant]:        Yeah.

                  “Det. Zaragoza:      Okay…

                  “[Defendant]:        … On the phone, I don’t know by my grandpa.



          Audio recordings of defendant’s interrogation were admitted at trial as
         15
prosecution exhibits 20 and 21. A written transcript of the interrogation was also
provided to the jury before the recordings were played, but the transcript was not
admitted as evidence. On appeal, both parties rely on the written transcript. We will do
the same.
            See footnote, ante, page 1.


                                               14.
       “Det. Zaragoza:      Okay, and they, grandpa went in the hospital to
go visit him and that people were blaming you.

       “[Defendant]:         … Yeah.

      “Det. Zaragoza:      And that people were blaming you, okay? Why
couldn’t you pick up the phone and say hey, you know, Sheriff’s
Department…

       “[Defendant]:        … I called you yesterday, I wanted to know
what you wanted, I would have, ok, I mean, I would, if you would of talked
to me yesterday, I would have had you come by the house, I wasn’t gonna
try and hide, I’m not, cause I know what I did and what I didn’t do.

        “Det. Zaragoza:       Okay, well then that’s, that’s not, you are
missing the point. On Saturday he gets shot, on Sunday you learn, uh, that
he is in the hospital, you learn that people are blaming you, that was last
month on the fourth and on the fifth. Why didn’t you pick up the phone
and say hey, I want to clear my name, people are blaming me…

       “[Defendant]:         … I wish I would have man, I could of…

       “Det. Zaragoza:       … Well then why didn’t you?

       “[Defendant]:          Because man, I didn’t, f**k bro, I didn’t
f**king, think, okay, I’m going to call the police, saying like I did it man, I
didn’t think, I didn’t think like that, okay? And I wish I would have now
that you’re telling me, I wish I would of, but I didn’t think that way, okay,
when I heard like, man.”

       “Det. Zaragoza:        Hey Eric, let me tell you this, if it was me on
that chair, if it was me that somebody was accusing that I shot someone,
right away I would stand up and say hey, it wasn’t me, I’m here…

       “[Defendant]:         … I’m telling you…

        “Det. Zaragoza:      … This is where I was at, I was at my
girlfriend’s house, she can confirm that I was there all night long, we
watched this movie, we watched that movie, ‘cause Eric, you’re not a dumb
kid, okay, you know where you were that Saturday, you know what you did
that Saturday.”

        “Det. Torres:        If I had, if, if it was me, and somebody told me
a day after the shooting that so and so got shot and looked like this, and
they, they think it’s me, I would have said, now they’re thinking it’s me,


                                      15.
       you remember we didn’t do nothing we were out here, we were doing this,
       we were doing that, that’s the first thing I would have remembered, I would
       have remembered that day like this. I wouldn’t have been that [sic] you
       don’t remember like you’re saying you don’t.

               “[Defendant]:        Well like bro, something like that, when you
       know, when you know you didn’t do nothing wrong, you don’t pay
       attention to shit like that.

              “Det. Torres:        Right, that, that, that’s my point…

              “[Defendant]:        … You know, I don’t…

              “Det. Torres:     … I would have told my, my ole’ lady, I would
       have said, you know what…

             “[Defendant]:         … Like when you know you didn’t do nothing
       wrong bro…

              “Det. Torres:       …(unintelligible) we were here, we were there,
       and they’re saying we did this, or that I did this.”
       B.     Standard for Ineffective Assistance of Counsel Claims
       “ ‘ “In assessing claims of ineffective assistance of trial counsel, we consider
whether counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine confidence in the
outcome. [Citations.]” ’ ” (People v. Johnson (2016) 62 Cal.4th 600, 653.)
       “ ‘[A]n appellate court’s ability to determine from the record whether an attorney
has provided constitutionally deficient legal representation is in the usual case severely
hampered by the absence of an explanation of an attorney’s strategy.’ [Citation.] For
this reason, we long ago adopted the rule that “ ‘[i]f the record on appeal fails to show
why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel
was asked for an explanation and failed to provide one, or unless there simply could be
no satisfactory explanation, the claim must be rejected on appeal. [Citations.]’ ”
[Citations.]” (Ibid.)


                                            16.
       C.     Analysis
       Here, the record does not show why counsel did not seek redaction of defendant’s
interrogation, nor was counsel asked. Consequently, “ ‘unless there simply could be no
satisfactory explanation, the claim must be rejected on appeal.’ ” (People v. Johnson,
supra, 62 Cal.4th at p. 653.) Here, there is a potentially satisfactory explanation: counsel
may have wanted the jury to hear defendant’s denial of involvement in the crime.
Throughout the interrogation exchanges cited by defendant, he consistently denied
involvement in the crime. Defense counsel could have reasonably wanted to have the
jury learn that defendant had repeatedly denied involvement in an interrogation setting.
And in order to get defendant’s interrogation responses into evidence, the detectives’
surrounding comments and questions would also need to be admitted. (See Evid. Code,
§ 356.) Counsel is not ineffective for failing to pursue meritless objections. (See People
v. Lucero (2000) 23 Cal.4th 692, 732.) Because there is a satisfactory explanation for
choosing not to seek redaction, we must reject defendant’s claims.
       D.     Additional Questions Posed by Detective Zaragoza
       Defendant also claims counsel was ineffective for failing to redact the following
questions posed by Detective Zaragoza:

              “Det. Zaragoza:     Okay, um, well, I want you to try to prove your
       innocence okay? And, uh, the only way you could do that, because you
       have so many people pointing you out is, if, um, you know, we could
       eliminate you based on the evidence okay?”
       Defendant argues that “[t]he evil of permitting the statements of the interrogating
detectives was the repeated recitation by [Detective] Zaragoza of his constitutionally
incorrect view of the law: that Mr. Reyes needed to prove his innocence and to come
forward with alibi evidence.” But Zaragoza was not expressing a “view of the law” at all.
Zaragoza simply said he “want[ed]” defendant to try to prove his innocence during the
interrogation. This is a reasonable desire for a homicide detective, and is not equivalent
to saying defendant was legally obligated to prove his innocence at trial.

                                            17.
         And even in the unlikely scenario that the jury took Detective Zaragoza’s
comments during the interrogation to be an explanation of the burden of proof applicable
at trial, their misconception would have been dispelled by the jury instructions. The court
told the jury that defendant was “presumed to be innocent,” and that the People were
required to “prove a defendant guilty beyond a reasonable doubt.” The court also
instructed the jury that “[u]nless the evidence proves the defendant guilty beyond a
reasonable doubt he is entitled to an acquittal and you must find him not guilty.” The
jury was further told that defendant may refuse to testify and “rely on the state of the
evidence and argue that the People have failed to prove the charges beyond a reasonable
doubt.” Given the low likelihood of misinterpretation of Zaragoza’s comment by the
jury, and the clarity of the jury instructions, we conclude the purported “failure” to seek
redaction of Zaragoza’s comment was not prejudicial.

IV.      By Failing to Object Below, Defendant Forfeited his Claim that the
         Prosecutor Committed Misconduct During Argument
         A.       Background
         Defendant argues the prosecutor committed misconduct during closing argument.
Defendant claims the prosecutor “unfairly and improperly argued that Mr. Reyes had a
duty to document his alibi the moment he heard that someone might have been accusing
him of shooting Efren and that his failure to do so meant he didn’t have an alibi or a
defense.” We conclude this contention was forfeited by defendant’s failure to object at
trial.
         During rebuttal, the prosecutor asked rhetorically, “How could someone who
heard they shot someone that they are being blamed for shooting someone on a particular
day not know where they were?”
         During closing argument, the prosecutor argued:


            See footnote, ante, page 1.


                                             18.
“Let’s talk about [defendant’s] statement. No, he didn’t confess, that would
have been surprising. Most people who kill people don’t. It is, I mean it
would probably be unusual. But you know this in the statement, again you
will get this and can listen to it if you want to.

        “Very early on in the interview he says I was out of town on
December 4th, 2010. Then he starts the denial. I don’t know where I was.
I don’t know where I was. Doesn’t admit I can speak Spanish. But during
the interview kind of lengthy interview towards the end the truth started
coming out.

       “I heard rumors that someone was shot. Oh, then I heard it was
Efren. I noticed that really well. Efren didn’t know him well, you heard
Efren say I don’t know this guy. All right? Then he heard Efren got shot.
At one point he says, ask him who did it. Yeah, he said he did, Efren said
you shot him. Then he admits he knew the next day people were blaming
him and he did nothing about it.

      “Says my grandpa knows the dude, my grandpa went to visit him in
Fresno. Okay, that is how I know he got shot bro, yeah. I found out right
away, found out the next day he got shot. He knows the next day,
December 5th.

       “And then when the officer started asking why didn’t you stop and
do something? Why don’t you at least remember the day? Why don’t you
call up your grandpa? Why don’t you tell your girlfriend, boy, I am sure
glad we were here at this store because every one is saying I shot this man
and I didn’t – I should call the police station and say I didn’t soot any one, I
was here. Let’s talk about this.

        “He says like I shrugged that shit off basically. I don’t pay attention
to that. Strange reaction to hearing that people think you shot someone. He
says nothing to the sheriff’s office, nothing to the people at the mobile
home, nothing to Sheryl.

       “He doesn’t go back and say, hey Nazario, I didn’t do it man,
remember? It wasn’t me. You know me. Go to visit Efren. Dude, I know
you, we, Al Pini right. I didn’t do it. Let’s talk about that. I want to make
sure you don’t think these terrible rumors, no.

       “He knew after the day of the shooting, he said people said he did it.
He still didn’t remember where he was. He says there is nothing significant
about that Saturday other than he knew the entire, he knew the rumors of
the town were saying he shot a man.”


                                      19.
       Later, the prosecutor paraphrased defendant as having said, “I know I thought
someone thought I shot someone, I just decided not to do anything about it.”
       There was no objection to these arguments posed by the prosecutor.16
       B.     Forfeiture
       “When a defendant believes the prosecutor has made remarks constituting
misconduct during argument, he or she is obliged to call them to the court’s attention by a
timely objection. Otherwise no claim is preserved for appeal. [Citation.] [¶] Defendant
made no objection to the prosecutor’s remarks and thus has waived his claim. His appeal
is foreclosed on that basis.” (People v. Morales (2001) 25 Cal.4th 34, 43–44.)

V.     Under Supreme Court Precedent, Defendant was Not Improperly Subjected
       to Multiple Punishments for Inflicting GBI on Efren
       In counts 7, 8, and 9, defendant was convicted of assaulting Nazario, Jose, and
Ignacio, respectively. Each of those counts had a great bodily injury enhancement
(§ 12022.7, subd. (a)) based on the injury to Efren. Defendant claims that two of the
three great bodily injury enhancements attached to counts 7, 8, and 9 should have been
stayed under section 654. The Attorney General contends that because there were
multiple victims/intents with respect to the underlying assault counts, the attached GBI
enhancements need not be stayed under section 654.
       A.     Law
       Section 654 provides that “[a]n act or omission that is punishable in different ways
by different provisions of law[17] shall be punished under the provision that provides for

       16Defendant requests that we address the issue even in the absence of a trial
objection to foreclose a future ineffective assistance of counsel claim in a collateral
proceeding. We decline to do so. (People v. Mayfield (1993) 5 Cal.4th 142, 192.)

       17 Under its plain terms, section 654 would not apply here because the great bodily
injury enhancements were not imposed under “different provisions of law.” (§ 654,
subd. (a).) Neither party discussed this issue, so we requested supplemental briefing.


                                             20.
the longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd.(a).)
       Plainly stated, section 654 “prohibits multiple punishment for the same act or
omission.” (Correa, supra, 54 Cal.4th at p. 337, internal quotations omitted.) For
example, if a convicted felon commits the single act of possessing a concealed weapon,
he cannot be punished for both possession of a firearm by a felon and possession of a
concealed weapon. (See generally People v. Jones (2012) 54 Cal.4th 350.)
       B. Section 654 and Enhancements
       The section 654 analysis can be become more difficult when enhancements are at
issue. “[E]nhancements are different from substantive crimes” in that they often “focus
on aspects of the criminal act that are not always present and warrant additional
punishment.” (People v. Ahmed (2011) 53 Cal.4th 156, 163 (Ahmed), fn. omitted,
original italics.) This difference “affects how section 654 applies to enhancements.”
(Ibid., italics omitted.)
       Consider the example of a defendant who commits the single act of shooting
someone, resulting in great bodily injury. (See, e.g., Ahmed, supra, 53 Cal.4th at p. 159.)
The defendant has committed assault with a firearm, and is also subject to sentence for
enhancements for personally using a firearm (§ 12022.53, subd. (a)) and personally


        In Neal v. State of California (1960) 55 Cal.2d 11, the Supreme Court said that
“[a]lthough section 654 does not expressly preclude double punishment when an act
gives rise to more than one violation of the same Penal Code section … it is settled that
the basic principle it enunciates precludes double punishment in such cases also.” (Id. at
p. 18, fn. 1.) In People v. Correa (2012) 54 Cal.4th 331 (Correa), the Supreme Court
acknowledged Neal’s observation was “an incorrect statement of law” and held that
“section 654 does not bar multiple punishment for violations of the same provision of
law.” (Correa, supra, at pp. 338, 344.) However, the Supreme Court held that under the
due process clause, the new rule announced in Correa could only be applied
prospectively. (Id. at pp. 344–345.) Both parties agree that Correa cannot be applied
here because defendant’s crimes occurred in 2010, before Correa was decided.


                                            21.
inflicting great bodily injury (§ 12022.7). In that situation, the assault and each of the
sentence enhancements are based on the same act: the shooting. Which of the three may
be punished under section 654?
       The law is clear that punishment for the assault and one of the enhancements is
permitted even though they are both based on the same act. (Ahmed, supra, 53 Cal.4th at
p. 164.) “If section 654 barred any additional punishment for a single criminal act, then
no enhancement at all would be permitted, a result obviously inconsistent with the
function of sentence enhancements.” (Ibid.)
       However, both enhancements can only be simultaneously punished under section
654 if they concern different “aspects” of the criminal act of shooting. (Ahmed, supra, 53
Cal.4th at p. 164.)18 Because personal firearm use and infliction of great bodily injury
are different “aspects” of the criminal act of assault with a firearm, section 654 would
presumably permit punishment for both enhancements.19
       C.     Multiple Victim Exception to Section 654
       The Supreme Court has created several extrastatutory exceptions to section 654.
One such exception arises “when a defendant “commits an act of violence with the intent
to harm more than one person or by means likely to cause harm to several persons,” his
greater culpability precludes application of section 654.’ ” (People v. McFarland (1989)
47 Cal.3d 798, 803.)20 For example, if “a defendant, in a single incident, commits

       18 However, while section 654 itself may not permit multiple punishment of two
enhancements, the particular enhancement statutes at issue in a particular case may
override section 654. (See, e.g., Ahmed, supra, 53 Cal.4th at pp. 164–168.)
       19Ahmed itself did not reach this issue because it concluded the relevant
enhancement statutes permitted punishment for both enhancements notwithstanding
section 654. (See Ahmed, supra, 53 Cal.4th at pp. 164–168.)
       20 Though this judicial exception to section 654 is not expressed in the text of the
statute, we are bound to follow it. (See People v. Jones, supra, 54 Cal.4th at p. 362
[“despite no explicit reference to victims in section 654, we held that a single act can be
punished more than once if it impacts multiple victims”].)


                                             22.
vehicular manslaughter as to one victim … and drunk driving resulting in injury to a
separate victim” (id. at p. 803), he may be properly subjected to multiple punishments for
the injuries “that result[] from the same incident.” (Id. at p. 804, fn. omitted.)21
       D.     Issue Presented
       The most difficult issue presented in this case arises at the intersection of the two
areas of law discussed above: the application of section 654 to enhancements and the
multiple victim exception to section 654. Specifically, we must determine which “act” to
consider in our section 654 analysis.
       If the relevant acts for section 654 purposes are the assaults (i.e., pointing the gun
at Ignacio, Nazario, and Jose), then the multiple victim exception clearly applies. If,
however, the relevant act is the infliction of great bodily injury on Efren, then the
multiple victim exception would not apply. As explained in detail below, we conclude
that under Oates, supra, 32 Cal.4th 1048, the relevant acts are those on which the
underlying substantive offenses (i.e., the assaults) are based. Because there were multiple
victims of those acts, the multiple victim exception applies and multiple punishment is
permitted.
       E.     Analysis
       In Oates, the defendant fired into a group of five people. (Oates, supra, 32 Cal.4th
at p. 1053.) A single victim was hit, necessitating amputation of his leg. Defendant was
charged and convicted of five counts of attempted premeditated murder. Two of the
attempted premeditated murder counts22 had section 12022.53, subdivision (d)


       21“Assault is recognized as a crime of violence in this context.” (People v.
Hopkins (1985) 167 Cal.App.3d 110, 116, disapproved on other grounds by People v.
Coronado (1995) 12 Cal.4th 145, 159.)
       22 One of the attempted murder counts enhanced by section 12022.53,
subdivision (d) was based on the victim that was actually hit by the bullet. (Oates, supra,
32 Cal.4th at p. 1053 [count 1 was the attempted murder of Barrera, the victim hit by the
bullet].) The other attempted murder count enhanced pursuant to section 12022.53,

                                             23.
enhancements attached, which apply when a defendant “personally and intentionally
discharges a firearm and proximately causes great bodily injury….” (§ 12022.53,
subd. (d).) The trial court stayed one of the two section 12022.53, subdivision (d)
enhancements under section 654. The Court of Appeal also “agreed with defendant that
section 654 precludes imposition of two subdivision (d) enhancements” based on a single
injury. (Oates, supra, 32 Cal.4th at p. 1054, original italics.) The People sought
Supreme Court review of the lower court’s ruling on the section 654 issue. (Ibid.)
       The Supreme Court reversed and concluded the defendant could be properly
punished more than once for the single great bodily injury. (Oates, supra, 32 Cal.4th at
pp. 1062–1069.) The Supreme Court held:

       “[W]e conclude that section 654 does not preclude imposition of multiple
       subdivision (d) enhancements based on the single injury to [the victim].
       Under the ‘multiple victim’ exception to section 654, defendant may be
       punished for each of the attempted murder offenses he committed when he
       fired at the [] group. The subdivision (d) enhancements ‘simply follow
       from’ his convictions on those ‘substantive offenses.’ [Citation.] They ‘do
       not constitute separate crimes or offenses, but simply are the basis for the
       imposition of additional punishment for the underlying substantive
       offense.’ ” (Id. at p. 1066.)
       We find Oates to be dispositive. In Oates, the Supreme Court reasoned that
multiple punishment of the enhancements was permitted because the multiple victim
exception applied to the underlying attempted murders and the enhancements simply
followed from those attempted murders. (Oates, supra, 32 Cal.4th at p. 1066.) Similarly
here, defendant could be punished for each assault because multiple victims were
involved. Since the several GBI enhancements “simply follow from” the convictions of
these “substantive offenses” (ibid.), they may be simultaneously punished.




subdivision (d) pertained to a victim who was not hit by a bullet. (See Oates, supra, at
pp. 1053–1054 [count 5 was the attempted murder of Castrejon].)


                                            24.
                                 DISPOSITION
     The judgment is affirmed.

                                               ______________________
                                               POOCHIGIAN, J.

WE CONCUR:


______________________
LEVY, Acting P.J.


______________________
KANE, J.




                                     25.
Poochigian, J., concurring.
       I write separately to offer additional thoughts on defendant’s claim under Penal
Code section 654.1 Though the judgment must be affirmed, I also note that this is not the
result I would reach absent People v. Oates (2004) 32 Cal.4th 1048 (Oates). (See, e.g.,
People v. Calles (2012) 209 Cal.App.4th 1200, 1218–1224.)
       A.       Oates
       In the Oates decision, discussed at length in the court’s opinion above, the
Supreme Court held:

       “[W]e conclude that section 654 does not preclude imposition of multiple
       subdivision (d) enhancements based on the single injury to [the victim].
       Under the ‘multiple victim’ exception to section 654, defendant may be
       punished for each of the attempted murder offenses he committed when he
       fired at the [] group. The subdivision (d) enhancements ‘simply follow
       from’ his convictions on those ‘substantive offenses.’ [Citation.] They ‘do
       not constitute separate crimes or offenses, but simply are the basis for the
       imposition of additional punishment for the underlying substantive offense.
       [Citation.]’ ” (Oates, supra, 32 Cal.4th at p. 1066.)
       Though Oates’s facts are not identical to those of the present case,2 I believe a
faithful application of its holding and reasoning requires affirmance here. I understand
the holding quoted above to mean that when a court is determining whether the multiple
victim exception applies to two or more enhancements, we are to look to the act(s)
constituting the substantive offense, not to the act(s) underlying the enhancement. Here,
the acts constituting the substantive offenses (i.e., assaults), were the acts of pointing the
gun at or near each of the assault victims. Because there were multiple victims of these
acts, the multiple victim exception applies not only to the assaults but also to any
enhancements thereof (e.g., the GBI enhancements). And since the multiple victim

       1   Future statutory references are to the Penal Code.
       2  For example, in Oates, the shots were fired “at the group.” (Oates, supra, 32
Cal.4th at p. 1053.) Here, in contrast, the great bodily injury (GBI)-inflicting shot was
fired at a specific individual (i.e., Efren).
exception applies to the enhancements, section 654 does not preclude simultaneous
punishment of all the GBI enhancements under Oates.
       B.     A Different Approach
       While we find the reasoning of Oates controlling, I wonder whether its application
leads to the wrong outcome in this case. In my view, the relevant “act or omission” on
review of a section 654 claim is the one that defendant asserts has been improperly
subjected to multiple punishment. (See § 654, subd. (a) [applies to act or omission
“punishable” by statute].) In this case, defendant is not raising a section 654 challenge to
the multiple punishment of the assaults on Ignacio, Nazario, and Jose.3 Instead, he is
challenging the multiple punishment he received for his singular infliction of great bodily
injury on Efren.4 Thus, with respect to defendant’s claim, the “act or omission” that is
“punishable” (§ 654, subd. (a)) by the GBI enhancements is the act of shooting Efren (not
the acts of assaulting the other three individuals).5

       3And rightly so, because each of those assaults was effected by a separate
physical act and involved multiple victims.
       4 Efren was shot several times. Of course, the firing of each shot is a separate
physical act. But the record does not indicate that each GBI enhancement was based on a
different shot fired at Efren. In closing argument, the prosecutor did not distinguish
between the four shots as a basis for the several GBI enhancements, saying: “[B]asically
we have to prove that in addition to the 2 uses of the firearm did he cause GBI? Shot 4
times, in the hospital for 7 days.” (Cf. People v. Jones (2012) 54 Cal.4th 350, 359 [when
determining whether verdicts are based on the same act, court looks to prosecutor’s jury
argument].) Moreover, the Attorney General’s briefing does not defend the imposition of
multiple punishment on that basis.
       5 Of course, sometimes the exact same act gives rise to both the substantive crime
and its enhancement. Indeed, that is how enhancements usually work: they “do not
define criminal acts; rather, they increase the punishment for those acts. They focus on
aspects of the criminal act that are not always present and that warrant additional
punishment.” (People v. Ahmed (2011) 53 Cal.4th 156, 163, original italics, fn. omitted.)
But that is not the case here, where the enhancement is punishing a criminal act (i.e.,
inflicting GBI on Efren) that is not the basis of the underlying crimes (i.e., the assaults on
Nazario, Ignacio and Jose). In other words, the enhancement here is not merely
                                              2
         C.    People v. Palacios
         In People v. Palacios (2007) 41 Cal.4th 720 (Palacios), the Supreme Court
considered whether section 654 applies to section 12022.53 enhancements. In
concluding that section 654 does not apply, the Supreme Court pointed to language in
section 12022.53 saying the enhancement was to be imposed “[n]otwithstanding any
other provision of law.” (§ 12022.53, subd. (d).) The enhancement at issue in the present
case, section 12022.7, has no analogous language, and Palacios is distinguishable on that
basis.
         The Palacios court also discussed how subdivision (f) of section 12022.53
affected application of section 654. Section 654 calls for an analysis of individual acts.
(Palacios, supra, 41 Cal.4th at p. 732.) In contrast, section 12022.53, subdivision (f)
limits the number of enhancements to one per crime. (§ 12022.53, subd. (f).) The
Supreme Court interpreted section 12022.53, subdivision (f) in light of a maxim of
statutory construction providing that “ ‘ “if exemptions are specified in a statute, we may
not imply additional exemptions unless there is a clear legislative intent to the contrary.
[Citation.]” ’ ” (Palacios, supra, 41 Cal.4th at p. 732.) Consequently, the Supreme Court
concluded that through subdivision (f), “the Legislature has chosen to limit enhancements
based on the crimes committed rather than an analysis of individual acts as called for in
section 654.” (Palacios, supra, at p. 732, original italics.)



punishing an “aspect” of the criminal act constituting the underlying offense, it is
punishing a different act altogether.
       That was not the case in Oates. In Oates, the act of shooting was the basis for
both the enhancement (firearm-caused GBI) and the crime being enhanced (attempted
murder). That is, the “discharge [of] a firearm” (§ 12022.53, subd. (d)) that triggered the
enhancement was also the act that constituted the attempted murders.
        Consequently, it is possible that the Oates court simply was not considering the
situation presented here when it employed the broad reasoning set out in the opinion.

                                              3
       Palacios’s analysis on that issue is relevant to the present case because section
12022.7 similarly provides that a court may not impose more than one enhancement “for
the same offense.” (§ 12022.7, subd. (h).) However, Palacios’s reasoning is
distinguishable. Palacios observed that the difference between section 654’s “act”
analysis and section 12022.53’s “crime” analysis supported the Supreme Court’s
conclusion regarding the legislative intent when “read in conjunction with the
‘[n]otwithstanding any other provision of law language’ contained in section 12022.53,
subdivisions (b), (c), and (d) ….” (Palacios, supra, 41 Cal.4th at p. 732, italics added.)
Section 12022.7 has no analogous language indicating it must be applied
“notwithstanding any other provision of law.”
       Since the section 12022.7 enhancement does not indicate it applies
“notwithstanding any other provision of law,” section 654 should be applied. The
relevant maxim of statutory construction provides that “ ‘ “if exemptions are specified in
a statute, we may not imply additional exemptions unless there is a clear legislative
intent to the contrary. [Citation.]” ’ ” (Palacios, supra, 41 Cal.4th at p. 732, italics
added.) While section 12022.7 does identify an exemption limiting the number of
enhancements to one per offense, there is “clear legislative intent” indicating this is not
the only exemption. And that “clear legislative intent” is embodied in section 654 itself.
Together, sections 654 and 12022.7 limit GBI enhancements to no more than one per
crime and no more than one per act. (See § 12022.7, subd. (h) [permitting only one
additional prison term for the same offense]; § 654 [permitting only one punishment per
physical act].) The two limitations are not inherently inconsistent. And unlike section
12022.53, there is nothing in section 12022.7 suggesting that its one enhancement per
crime limitation displaces, rather than complements, the one enhancement per act
limitation of section 654. As a result, I would hold that section 12022.7 enhancements



                                              4
can be imposed no more than once per crime (§ 12022.7, subd. (h)) and can be punished
no more than once per act (§ 654).6
       D.       Application
       To determine whether the present enhancements improperly impose multiple
punishment on a single act, courts must perform “an analysis of individual acts as called
for in section 654.” (Palacios, supra, 41 Cal.4th at p. 732, original italics.) Here, the
relevant “act[s] or omission[s]” under section 654 was firing the shots that inflicted GBI
on Efren; not the acts of pointing the gun at or near each of the three other assault
victims. (See § B., supra.) Since the relevant acts had a single victim (i.e., Efren), the
multiple victim exception would not apply. If the multiple victim exception does not
apply, then section 654 would prohibit multiple punishment because the several
enhancements were all based on the same injury.
       E.       Section 654’s Purpose
       The framework described above also furthers section 654’s purpose. “ ‘The
purpose of the protection against multiple punishment is to insure that the defendant’s
punishment will be commensurate with his criminal liability. A defendant who commits
an act of violence … by a means likely to cause harm to several persons is more culpable
than a defendant who harms only one person.’ ” (Oates, supra, 32 Cal.4th at p. 1063.)
Broad application of Oates in all cases where multiple GBI-enhancements are imposed
with respect to one victim could frustrate, rather than promote, the purpose of the
multiple victim exception. Imagine a defendant fires a gun once at a crowd of 10 people,
causing great bodily injury to one person. Under Oates, the defendant could be punished
for ten GBI enhancements. But if the defendant had fired 10 shots into the same crowd,
causing great bodily injury to all 10 people, he would be punished for the same number


       6   Except in cases where People v. Correa (2012) 54 Cal.4th 331, applies.

                                              5
of GBI enhancements as the defendant who only fired once. This result is contrary to the
notion that “ ‘[a] defendant who commits an act of violence … by a means likely to cause
harm to several persons is more culpable than a defendant who harms only one
person.’ ”7 (Oates, supra, 32 Cal.4th at p. 1063.)
       I encourage the Supreme Court to consider whether Oates should apply when
multiple section 12022.7 enhancements are applied to a single great bodily injury.8



                                                       ____________________________
                                                       POOCHIGIAN, J.




       7It seems clear that the enhancement statute itself permits such a result. (Cf.
Oates, supra, 32 Cal.4th at pp. 1055–1062 [concluding § 12022.53, subd. (d) provides for
multiple enhancements when one person is injured during the commission of multiple
attempted murders]; see also Oates, supra, 32 Cal.4th at pp. 1069–1070 (Werdegar, J.,
concurring).) But I would submit that section 654 – applied to section 12022.7
enhancements – does not.
       8 While this would likely involve revisiting some of the reasoning employed in
Oates, it would not require entirely overruling Oates. As noted above, the Supreme
Court determined (after Oates was decided) that section 654 does not apply at all to
section 12022.53 enhancements. (See generally Palacios, supra, 41 Cal.4th 720.)
Therefore, the result in Oates – overturning a section 654 stay for multiple section
12022.53 enhancements – would remain viable under Palacios.

                                            6
