[1005] Opinion
RIVERA, J.
Defendant Phong Bui appeals a judgment entered upon a jury verdict finding him guilty of attempted murder (Pen. Code,1 §§ 187, 664, subd. (a)), mayhem (§ 203), first degree residential robbery (§§ 211, 212.5, subd. (a)), and first degree residential burglary (§§ 459, 460, subd. (a)). He contends on appeal that his conviction of attempted murder is not supported by substantial evidence, that the trial court committed instructional and sentencing error, and that he received ineffective assistance of counsel. We agree that the trial court committed sentencing error, and shall remand for resentencing. In all other respects, we shall affirm.
I. BACKGROUND
A. The Robbery
Billy Huynh and his wife Tammy Le lived in Bay Point with their son, William, and with Le’s children, Thu and Mike Le.2 At the time of the events in question, Mike was 17 years old, Thu 14, and William was a baby. Le kept large amounts of cash in a safe in the closet of her bedroom. Mike knew the safe contained cash.
At approximately 11:45 p.m. on November 13, 2005, while Le was in bed, two men came into her bedroom. Her baby, William, was also in the room. Le called for Huynh, who emerged from the bathroom, and the two men made them both lie down. The older of the two men had a knife, and the other, who was wearing a mask and appeared to be about Mike’s age, was holding a gun.3 At trial, Le identified the man with the gun as defendant, saying she recognized him by his eyes.
Defendant took the home phone and cell phone, and asked where the safe was. Le said that the key to the safe was downstairs, and defendant brought Huynh downstairs. Before doing so, defendant went into other rooms. He pointed a gun at Thu, who was in her bedroom, told her to give him her phone, took the phone, and left the room. Thu then went into Le’s bedroom. [1006] On the way, she noticed that Mike’s bedroom window was wide open.4 She also noticed that the gunman was wearing shoes identical to some Mike used to have.5 Thu heard Huynh ask where Mike was, and the gunman “said something about if you see that window open, then you know with [szc] your son’s at.” Both men told Huynh that Mike was “okay.”
Huynh hoped defendant would be satisfied with $200, which was kept under the kitchen sink. In the kitchen, however, defendant pointed the gun at Huynh, and Huynh tried to push the hand holding the gun away. The gun went off, and Huynh fell to the floor, face down, unable to move. As he lay on the floor, he heard at least two more shots. The time between the first shot and the later shots was “Very quick. Less than 10 [seconds],” and the second and third shots occurred in rapid succession.
The man with the knife kept Le, Thu, and William in Le’s bedroom. Le heard four gunshots from downstairs. Thu testified to hearing two or three shots. The man with the knife ran out of Le’s bedroom, saying “[W]hat the hell are you doing[?],” or “Why the hell did you shoot him?” Le ran downstairs and saw Huynh lying on the kitchen floor, “all bloody.” Defendant and the other man ran away.
After police officers arrived, Huynh began to feel excruciating pain in his abdomen, and he passed out on the way to the hospital. He had four surgeries to treat his injuries, including surgery on the gunshot wounds to his arm and abdomen, and surgery to remove clots from his left leg.
Doctors who treated Huynh found a bullet entry wound in the elbow, and no exit wound. Among Huynh’s injuries, the tip of his elbow was “in multiple pieces,” “fractured to the point where it was just like grains of sand,” and his distal humerus bone was fractured. Huynh suffered abdominal bleeding, resulting from an arterial injury.
Bullets were retrieved from Huynh’s elbow and the small of his back. Huynh later saw a small round hole in his kitchen window.
[1007] B. Defendant’s Statements to Detective
In an interview with a sheriff’s detective, defendant admitted taking part in the robbery. He said Mike had told him and another man, Abe, that there was money in a safe in Mike’s parents’ room and that Mike planned the robbery. He said the pair had rung the doorbell without result. He entered the house through Mike’s window, then opened the door for Abe. Abe then “took over.” Defendant was downstairs, and went up only when Abe called to him to collect the cell phones. Abe checked the rooms, and defendant saw that Mike’s sister was bald.6 He heard gunshots. He said the robbery had “links” to an earlier marijuana robbery he had been involved in, because Mike owed money as a result of that incident.7
C. Evidence of Prior Incident
Amy Le8 testified that on October 5, 2005, someone approached her and a friend named David Li, pulled a gun, and told Li, “Drop down and give me your wallet.” Amy Le identified defendant as the gunman in a photographic lineup.
Fragments of a bank card or credit card taken during that robbery were found in the side yard of Huynh and Le’s home after Huynh was shot. Mike testified that he and defendant had stolen the card from someone in Oakland and used it, and that he had cut up the card and thrown it out the window.
D. Mike’s Testimony
Mike testified that he knew defendant.9 Shortly before the incident at issue in this appeal, his mother found him putting marijuana into bags. He and defendant had stolen the marijuana from a house in Oakland, and he intended to sell it. Another friend, Abe, had told defendant and Mike the marijuana [1008] would be there. There were two people in the house from which they stole the marijuana. During the robbery, Mike was armed with a Taser, and defendant was armed with a loaded gun. They agreed to split the marijuana, with half going to the person who had told Abe about the marijuana, and the rest divided among Mike, Abe, and defendant. Abe, however, accused Mike of taking more than his share, ánd took the position that Mike owed him between $40,000 and $50,000. Defendant told Mike that Abe would “get [him] back for what [he] did.”
Mike knew that his parents kept large amounts of money in a safe, and told defendant the combination to the safe. He and defendant agreed that defendant would steal the money, and after Abe was repaid, they would split the rest of the money. They planned for Mike to sneak out through his bedroom window and leave it open for defendant. Defendant later told Mike he had left the house with no money, but did not mention shooting Huynh.
Mike also testified that he and defendant had stolen bank cards on about five to 10 occasions in the past and used them to buy gasoline.
E. Defendant’s Testimony
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[1005] Opinion
RIVERA, J.
Defendant Phong Bui appeals a judgment entered upon a jury verdict finding him guilty of attempted murder (Pen. Code,1 §§ 187, 664, subd. (a)), mayhem (§ 203), first degree residential robbery (§§ 211, 212.5, subd. (a)), and first degree residential burglary (§§ 459, 460, subd. (a)). He contends on appeal that his conviction of attempted murder is not supported by substantial evidence, that the trial court committed instructional and sentencing error, and that he received ineffective assistance of counsel. We agree that the trial court committed sentencing error, and shall remand for resentencing. In all other respects, we shall affirm.
I. BACKGROUND
A. The Robbery
Billy Huynh and his wife Tammy Le lived in Bay Point with their son, William, and with Le’s children, Thu and Mike Le.2 At the time of the events in question, Mike was 17 years old, Thu 14, and William was a baby. Le kept large amounts of cash in a safe in the closet of her bedroom. Mike knew the safe contained cash.
At approximately 11:45 p.m. on November 13, 2005, while Le was in bed, two men came into her bedroom. Her baby, William, was also in the room. Le called for Huynh, who emerged from the bathroom, and the two men made them both lie down. The older of the two men had a knife, and the other, who was wearing a mask and appeared to be about Mike’s age, was holding a gun.3 At trial, Le identified the man with the gun as defendant, saying she recognized him by his eyes.
Defendant took the home phone and cell phone, and asked where the safe was. Le said that the key to the safe was downstairs, and defendant brought Huynh downstairs. Before doing so, defendant went into other rooms. He pointed a gun at Thu, who was in her bedroom, told her to give him her phone, took the phone, and left the room. Thu then went into Le’s bedroom. [1006] On the way, she noticed that Mike’s bedroom window was wide open.4 She also noticed that the gunman was wearing shoes identical to some Mike used to have.5 Thu heard Huynh ask where Mike was, and the gunman “said something about if you see that window open, then you know with [szc] your son’s at.” Both men told Huynh that Mike was “okay.”
Huynh hoped defendant would be satisfied with $200, which was kept under the kitchen sink. In the kitchen, however, defendant pointed the gun at Huynh, and Huynh tried to push the hand holding the gun away. The gun went off, and Huynh fell to the floor, face down, unable to move. As he lay on the floor, he heard at least two more shots. The time between the first shot and the later shots was “Very quick. Less than 10 [seconds],” and the second and third shots occurred in rapid succession.
The man with the knife kept Le, Thu, and William in Le’s bedroom. Le heard four gunshots from downstairs. Thu testified to hearing two or three shots. The man with the knife ran out of Le’s bedroom, saying “[W]hat the hell are you doing[?],” or “Why the hell did you shoot him?” Le ran downstairs and saw Huynh lying on the kitchen floor, “all bloody.” Defendant and the other man ran away.
After police officers arrived, Huynh began to feel excruciating pain in his abdomen, and he passed out on the way to the hospital. He had four surgeries to treat his injuries, including surgery on the gunshot wounds to his arm and abdomen, and surgery to remove clots from his left leg.
Doctors who treated Huynh found a bullet entry wound in the elbow, and no exit wound. Among Huynh’s injuries, the tip of his elbow was “in multiple pieces,” “fractured to the point where it was just like grains of sand,” and his distal humerus bone was fractured. Huynh suffered abdominal bleeding, resulting from an arterial injury.
Bullets were retrieved from Huynh’s elbow and the small of his back. Huynh later saw a small round hole in his kitchen window.
[1007] B. Defendant’s Statements to Detective
In an interview with a sheriff’s detective, defendant admitted taking part in the robbery. He said Mike had told him and another man, Abe, that there was money in a safe in Mike’s parents’ room and that Mike planned the robbery. He said the pair had rung the doorbell without result. He entered the house through Mike’s window, then opened the door for Abe. Abe then “took over.” Defendant was downstairs, and went up only when Abe called to him to collect the cell phones. Abe checked the rooms, and defendant saw that Mike’s sister was bald.6 He heard gunshots. He said the robbery had “links” to an earlier marijuana robbery he had been involved in, because Mike owed money as a result of that incident.7
C. Evidence of Prior Incident
Amy Le8 testified that on October 5, 2005, someone approached her and a friend named David Li, pulled a gun, and told Li, “Drop down and give me your wallet.” Amy Le identified defendant as the gunman in a photographic lineup.
Fragments of a bank card or credit card taken during that robbery were found in the side yard of Huynh and Le’s home after Huynh was shot. Mike testified that he and defendant had stolen the card from someone in Oakland and used it, and that he had cut up the card and thrown it out the window.
D. Mike’s Testimony
Mike testified that he knew defendant.9 Shortly before the incident at issue in this appeal, his mother found him putting marijuana into bags. He and defendant had stolen the marijuana from a house in Oakland, and he intended to sell it. Another friend, Abe, had told defendant and Mike the marijuana [1008] would be there. There were two people in the house from which they stole the marijuana. During the robbery, Mike was armed with a Taser, and defendant was armed with a loaded gun. They agreed to split the marijuana, with half going to the person who had told Abe about the marijuana, and the rest divided among Mike, Abe, and defendant. Abe, however, accused Mike of taking more than his share, ánd took the position that Mike owed him between $40,000 and $50,000. Defendant told Mike that Abe would “get [him] back for what [he] did.”
Mike knew that his parents kept large amounts of money in a safe, and told defendant the combination to the safe. He and defendant agreed that defendant would steal the money, and after Abe was repaid, they would split the rest of the money. They planned for Mike to sneak out through his bedroom window and leave it open for defendant. Defendant later told Mike he had left the house with no money, but did not mention shooting Huynh.
Mike also testified that he and defendant had stolen bank cards on about five to 10 occasions in the past and used them to buy gasoline.
E. Defendant’s Testimony
Defendant testified in his own defense. He admitted being involved in the Oakland home invasion robbery in which he and Mike stole marijuana, and said that there were hard feelings afterward between Mike and Abe over the distribution of the marijuana. He knew before going to the Oakland house that it was occupied, and he brought a Taser with him.
Defendant testified that he did not remember stealing Li’s wallet and that he was not with Mike when he used Li’s bank card.
Defendant denied that Mike had suggested robbing his parents, but said Mike had bragged about having a safe and large sums of money in his house. Mike had told them that the safe would be in the bedroom, but had not given them the combination to the safe.
Defendant testified that Abe told him to lure Mike out of the house on the night in question. He denied having been present during the invasion of [1009] Huynh and Le’s home. He said he heard about it afterward from Abe, Mike, and another person, Little John. He acknowledged that he had told a detective that he was involved in the invasion, but said he did so in the hope of being allowed to go home.
Defendant testified that in March 2005, he had admitted in a juvenile proceeding to committing robbery. (§ 211.) When asked what the petition involved, he replied “Me and [another person] taking candy from kids on Halloween with lead pipes.”10
F. The Verdicts and Sentencing
On count one, the jury found defendant guilty of attempted murder (§§ 187, subd. (a), 664, subd. (a)), but found not true an allegation that the attempted murder was willful, deliberate, and premeditated, and found defendant had personally used and discharged a firearm, causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)). On count two, the jury found defendant guilty of mayhem (§ 203), and found true three firearm enhancements (§ 12022.53, subds. (b), (c) & (d)). On count three, the jury found defendant guilty of first degree residential robbery (§§ 211, 212.5, subd. (a)) of Huynh, with firearm enhancements (§ 12022.53, subds. (b), (c) & (d)). On counts four and five, defendant was found guilty of first degree residential robbery (§§ 211, 212.5, subd. (a)) of Le and Thu respectively, with enhancements for personal use of a firearm (§ 12022.53, subd. (b)). On count six, the jury found him guilty of first degree residential burglary (§§ 459, 460, subd. (a)), with an enhancement for personal use of a firearm (§ 12022.5, subd. (a)). The trial court found true a strike allegation. (§ 1170.12.)
The trial court sentenced defendant to the midterm of seven years for count one, attempted murder. For count two, mayhem, it imposed a consecutive term of one year four months. For count three, residential robbery of Huynh, it sentenced him to a consecutive term of one year four months. The court also imposed a separate consecutive enhancement of 25 years to life pursuant to section 12022.53, subdivision (d), in connection with each of these three counts. The court sentenced defendant to serve sentences of four years for counts four and five, residential robbery of Le and Thu, to run concurrently with count three, and for each of these counts imposed a consecutive enhancement of three years four months pursuant to section 12022.53, [1010] subdivision (b). The court imposed and stayed sentence on count six, burglary, pursuant to section 654. Thus, the total determinate term was 16 years four months, and the total indeterminate term for the three section 12022.53, subdivision (d) enhancements was 75 years to life.
II. DISCUSSION
A., B.