Opinion
MERRILL, J.
An information was filed charging appellant Marvin Eugene Masters with attempted murder of Derrick Ross, in violation of Penal Code1 section 187 in count one; discharging a firearm at an occupied motor vehicle, in violation of section 246 in count two; and, assault with a deadly weapon on James Hooker, in violation of section 245, subdivision (a)(2), in count three. Enhancements were alleged in connection with each count. Masters’s section 995 motion to dismiss the attempted murder count and the accompanying enhancement allegations was denied.
Pursuant to a negotiated disposition, and upon motion of the district attorney, the trial court amended the attempted murder charge in count one to allege assault with a deadly weapon, in violation of section 245, subdivision (a)(2). Masters then pleaded guilty to this charge, admitted the accompanying great bodily injury enhancement allegation (§§ 12022.7, 1203.075) and pleaded guilty to count two, a violation of section 246. Count three and the remaining enhancement allegations were dismissed upon the district attorney’s motion.
Masters was sentenced to the upper term of four years on count one, a consecutive three-year term for the great bodily injury enhancement and a consecutive one-year term on count two, being one-third of the middle term.
The trial court executed a certificate of probable cause for appeal (§ 1237.5) on the issue of whether the section 654 prohibition against multiple punishment precluded the court from sentencing Masters to the one-year consecutive sentence for violation of section 246 without staying execution of that sentence. This appeal followed.
I
The factual basis for sentencing Masters was provided by the preliminary hearing transcript which was received into evidence pursuant to the [1127]*1127stipulation of the parties. On the evening of March 24, 1985, on Interstate 580 in Oakland, Masters was sitting in the right front passenger seat of a Lincoln Continental driven by Herman Lewis. Also on the freeway, two or three car lengths ahead, was a red Mustang driven by James Hooker. Kimberly McLean, the owner of the Mustang, was seated in the front passenger seat and Derrick Ross was seated on the passenger side of the back seat. Lewis told Masters that he recognized the red Mustang as belonging to someone from the Sobrante Park gang and that the driver was Booby Hooker. Lewis believed that members of that gang had shot at his car window.
When the Lincoln was in the left lane and the Mustang was a car length ahead in the adjacent lane, Masters pulled out a gun and began shooting at the Mustang. He fired four or five shots from Lewis’s .38 revolver. Shots hit the trunk and the back window. One of the bullets also hit Ross in the back of the neck. He is unable to walk as a result of the shooting.
II
Masters contends on appeal that section 654 prohibits his punishment both for section 245, subdivision (a)(2), and section 246 as the assault upon Ross and the discharge of the firearm into the occupied Mustang were part of one indivisible course of conduct. This assertion does not withstand analysis.
Section 654 prohibits the imposition of punishment for more than one violation arising out of an act or omission which is made punishable in different ways by different statutory provisions. This proscription applies not only where there is “but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.” (People v. Perez (1979) 23 Cal.3d 545, 551 [153 Cal.Rptr. 40, 591 P.2d 63], citing People v. Beamon (1973) 8 Cal.3d 625, 637 [105 Cal.Rptr. 681, 504 P.2d 905].)
The section 654 proscription against multiple punishment does not apply to violations arising from an indivisible course of conduct if during the course of that conduct the defendant committed crimes of violence against different victims. (People v. Miller (1977) 18 Cal.3d 873, 885 [135 Cal.Rptr. 654, 558 P.2d 552]; People v. Milan (1973) 9 Cal.3d 185, 197 [107 Cal.Rptr. 68, 507 P.2d 956]; In re Ford (1967) 66 Cal.2d 183, 183-184 [57 Cal.Rptr. 129, 424 P.2d 681]; People v. Burney (1981) 115 Cal.App.3d 497, 506 [171 Cal.Rptr. 329]; People v. Prater (1977) 71 Cal.App.3d 695, 699 [139 Cal.Rptr. 566]; People v. Braun (1973) 29 Cal.App.3d 949, 975 [106 Cal.Rptr. 56], cert. den. sub nom. Braun v. California (1973) 414 U.S. 974 [38 L.Ed.2d 217, 94 S.Ct. 294] and disapproved on other grounds in People [1128]*1128v. Green (1980) 27 Cal.3d 1, 25, fn. 10 [164 Cal.Rptr. 1, 609 P.2d 468].) “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 with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.” (Neal v. State of California (1960) 55 Cal.2d 11, 20 [9 Cal.Rptr. 607, 357 P.2d 839], cert. den. Neal v. California (1961) 365 U.S. 823 [5 L.Ed.2d 700, 81 S.Ct. 708].)
In Miller, our Supreme Court upheld the imposition of separate punishments for an indivisible course of conduct which resulted in the defendant’s convictions for the robbery of one victim and the burglary of a second victim. Both offenses involved violence or the threat of violence; the robbery of Keating was committed at gunpoint and the burglary victim, Burk, suffered great bodily injury. The court reasoned that section 654’s prohibition against multiple punishment did not apply in this instance. (People v. Miller, supra, 18 Cal.3d at p. 886.)
The preclusion of section 654’s application does not depend upon a determination that the victims of one violent crime are entirely different from the victims of a second violent crime committed in the same course of conduct. As long as each violent crime involves at least one different victim, section 654’s prohibition against multiple punishment is not applicable. (People v. Miller, supra, 18 Cal.3d at p. 886, fn. 11; see also In re Ford, supra, 66 Cal.2d at pp. 183-184 [court upholds multiple punishment for convictions of kidnap for robbery and robbery where one of the three kidnap victims was also the robbery victim].)
In our view, Masters’s violation of section 245, subdivision (a)(2), and section 246, while in the same course of conduct, resulted in the commission of violent crimes against different victims. Manifestly, Derrick Ross was the unfortunate victim of Masters’s assault with a deadly weapon and all three occupants of the Mustang were victims of his discharge of the firearm at the vehicle.
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Opinion
MERRILL, J.
An information was filed charging appellant Marvin Eugene Masters with attempted murder of Derrick Ross, in violation of Penal Code1 section 187 in count one; discharging a firearm at an occupied motor vehicle, in violation of section 246 in count two; and, assault with a deadly weapon on James Hooker, in violation of section 245, subdivision (a)(2), in count three. Enhancements were alleged in connection with each count. Masters’s section 995 motion to dismiss the attempted murder count and the accompanying enhancement allegations was denied.
Pursuant to a negotiated disposition, and upon motion of the district attorney, the trial court amended the attempted murder charge in count one to allege assault with a deadly weapon, in violation of section 245, subdivision (a)(2). Masters then pleaded guilty to this charge, admitted the accompanying great bodily injury enhancement allegation (§§ 12022.7, 1203.075) and pleaded guilty to count two, a violation of section 246. Count three and the remaining enhancement allegations were dismissed upon the district attorney’s motion.
Masters was sentenced to the upper term of four years on count one, a consecutive three-year term for the great bodily injury enhancement and a consecutive one-year term on count two, being one-third of the middle term.
The trial court executed a certificate of probable cause for appeal (§ 1237.5) on the issue of whether the section 654 prohibition against multiple punishment precluded the court from sentencing Masters to the one-year consecutive sentence for violation of section 246 without staying execution of that sentence. This appeal followed.
I
The factual basis for sentencing Masters was provided by the preliminary hearing transcript which was received into evidence pursuant to the [1127]*1127stipulation of the parties. On the evening of March 24, 1985, on Interstate 580 in Oakland, Masters was sitting in the right front passenger seat of a Lincoln Continental driven by Herman Lewis. Also on the freeway, two or three car lengths ahead, was a red Mustang driven by James Hooker. Kimberly McLean, the owner of the Mustang, was seated in the front passenger seat and Derrick Ross was seated on the passenger side of the back seat. Lewis told Masters that he recognized the red Mustang as belonging to someone from the Sobrante Park gang and that the driver was Booby Hooker. Lewis believed that members of that gang had shot at his car window.
When the Lincoln was in the left lane and the Mustang was a car length ahead in the adjacent lane, Masters pulled out a gun and began shooting at the Mustang. He fired four or five shots from Lewis’s .38 revolver. Shots hit the trunk and the back window. One of the bullets also hit Ross in the back of the neck. He is unable to walk as a result of the shooting.
II
Masters contends on appeal that section 654 prohibits his punishment both for section 245, subdivision (a)(2), and section 246 as the assault upon Ross and the discharge of the firearm into the occupied Mustang were part of one indivisible course of conduct. This assertion does not withstand analysis.
Section 654 prohibits the imposition of punishment for more than one violation arising out of an act or omission which is made punishable in different ways by different statutory provisions. This proscription applies not only where there is “but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.” (People v. Perez (1979) 23 Cal.3d 545, 551 [153 Cal.Rptr. 40, 591 P.2d 63], citing People v. Beamon (1973) 8 Cal.3d 625, 637 [105 Cal.Rptr. 681, 504 P.2d 905].)
The section 654 proscription against multiple punishment does not apply to violations arising from an indivisible course of conduct if during the course of that conduct the defendant committed crimes of violence against different victims. (People v. Miller (1977) 18 Cal.3d 873, 885 [135 Cal.Rptr. 654, 558 P.2d 552]; People v. Milan (1973) 9 Cal.3d 185, 197 [107 Cal.Rptr. 68, 507 P.2d 956]; In re Ford (1967) 66 Cal.2d 183, 183-184 [57 Cal.Rptr. 129, 424 P.2d 681]; People v. Burney (1981) 115 Cal.App.3d 497, 506 [171 Cal.Rptr. 329]; People v. Prater (1977) 71 Cal.App.3d 695, 699 [139 Cal.Rptr. 566]; People v. Braun (1973) 29 Cal.App.3d 949, 975 [106 Cal.Rptr. 56], cert. den. sub nom. Braun v. California (1973) 414 U.S. 974 [38 L.Ed.2d 217, 94 S.Ct. 294] and disapproved on other grounds in People [1128]*1128v. Green (1980) 27 Cal.3d 1, 25, fn. 10 [164 Cal.Rptr. 1, 609 P.2d 468].) “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 with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.” (Neal v. State of California (1960) 55 Cal.2d 11, 20 [9 Cal.Rptr. 607, 357 P.2d 839], cert. den. Neal v. California (1961) 365 U.S. 823 [5 L.Ed.2d 700, 81 S.Ct. 708].)
In Miller, our Supreme Court upheld the imposition of separate punishments for an indivisible course of conduct which resulted in the defendant’s convictions for the robbery of one victim and the burglary of a second victim. Both offenses involved violence or the threat of violence; the robbery of Keating was committed at gunpoint and the burglary victim, Burk, suffered great bodily injury. The court reasoned that section 654’s prohibition against multiple punishment did not apply in this instance. (People v. Miller, supra, 18 Cal.3d at p. 886.)
The preclusion of section 654’s application does not depend upon a determination that the victims of one violent crime are entirely different from the victims of a second violent crime committed in the same course of conduct. As long as each violent crime involves at least one different victim, section 654’s prohibition against multiple punishment is not applicable. (People v. Miller, supra, 18 Cal.3d at p. 886, fn. 11; see also In re Ford, supra, 66 Cal.2d at pp. 183-184 [court upholds multiple punishment for convictions of kidnap for robbery and robbery where one of the three kidnap victims was also the robbery victim].)
In our view, Masters’s violation of section 245, subdivision (a)(2), and section 246, while in the same course of conduct, resulted in the commission of violent crimes against different victims. Manifestly, Derrick Ross was the unfortunate victim of Masters’s assault with a deadly weapon and all three occupants of the Mustang were victims of his discharge of the firearm at the vehicle. As Masters’s violent actions were performed in a manner likely to cause harm to all three individuals in the vehicle, and in fact did seriously injure one person, the section 654 proscription against multiple punishment for violations arising from an indivisible course of conduct is inapplicable.
Masters recognizes that section 654 does not preclude multiple punishment where a defendant has committed violent crimes against different victims. However, he urges that his violation of section 246, the discharge of a firearm into an occupied motor vehicle, did not constitute a crime with victims. Accordingly, he argues, section 654’s prohibition should apply to [1129]*1129his sentence. Masters relies upon the opinion in Martin v. Hall (1971) 20 Cal.App.3d 414 [97 Cal.Rptr. 730, 53 A.L.R.3d 719], to support his proposition.
The Martin case concerned a legal malpractice action against a criminal defense attorney by his former client. At issue was the attorney’s representation of the client in a trial in which the client was found guilty of the felonies of assault with a deadly weapon (§ 245) and the discharge of a firearm into an inhabited dwelling. (§ 246.) Prior to the attorney being retained by the client in the criminal proceeding for the felony offenses, the client had pleaded guilty and served time for the misdemeanor charge of disturbing the peace. (§415.) The misdemeanor charge and the felony charges arose out of the same incident. (Martin v. Hall, supra, 20 Cal.App.3d at pp. 417-419.)
In the malpractice action, the client asserted that the defense attorney should have utilized the misdemeanor conviction for the disturbing the peace offense for the purpose of causing a dismissal of the felony prosecution on the basis of the statutory and constitutional prohibitions against double jeopardy. He also claimed that the defense attorney should have argued that the client’s punishment for the misdemeanor offense of disturbing the peace precluded his punishment for the felony offenses, pursuant to section 654. (Martin v. Hall, supra, 20 Cal.App.3d at p. 419.) The Court of Appeal held that the trial court committed prejudicial error by allowing the jury to decide whether or not the defense attorney should have raised the issue of double jeopardy. (Id., at pp. 420-423.) More significant to the issue presented in the case at bench, the Martin court considered whether section 654’s prohibition against multiple punishment applied to sentences imposed for the misdemeanor of disturbing the peace and the felony of discharge of a firearm into an inhabited dwelling. The Court of Appeal held that section 654 may apply even if the first punishment was suffered for a misdemeanor in a municipal court. However, the court specifically declined to rule on section 654’s application in view of the fact that the victims of the disturbing the peace violation were not all the same as the victims of the felony charges. The court stated: “[T]he question of multiple punishment for crimes involving several victims is a live issue today and should not be decided in this civil case, to which the People are not a party, if we can avoid doing so.” (Id., at p. 425, fn. omitted.) Thereafter, the court stated that “defendant is mistaken in assuming, as a matter of law, that there were three victims to the felony charges. As far as the violation of section 246 is concerned, the crime does not involve victims in the ordinary sense. Who is the victim when a defendant pumps bullets into an inhabited, but temporarily vacant dwelling?” (Id., at p. 426.)
[1130]*1130Appellant’s reliance on Martin is unpersuasive. The court in Martin explicitly stated that in a civil case where the People were not a party it would not decide the question of multiple punishment for crimes involving several victims. In addition, the court’s reference to a violation of section 246 not involving victims in the ordinary sense, was in the context of a discharge of a firearm at an inhabited but temporarily vacant dwelling rather than an occupied vehicle. Unlike the example the court gave in Martin, Masters shot at an occupied moving vehicle containing a driver and two passengers. Clearly, all three individuals were victims of Masters’s violation of section 246. In view of the fact that the offense requires that the vehicle be occupied, logic dictates that the occupants of the vehicle are victims of the crime.
Neither does the opinion in People v. Kane (1985) 165 Cal.App.3d 480 [211 Cal.Rptr. 628] provide support for Masters’s position. In Kane, the Court of Appeal held that the section 654 prohibition against multiple punishment applied to a defendant’s convictions for assault with a deadly weapon (§ 245, subd. (a)), discharge of a firearm into an occupied motor vehicle (§ 246), and possession of a firearm by a convicted felon (§ 12021), where the convictions arose out of the same shooting incident. However, this ruling is inapplicable to the instant case for the reason that there was only one victim in Kane. The same individual was the victim of both the assault with the deadly weapon and the discharge of the firearm into the occupied motor vehicle. (Id., at p. 488.) Unlike Kane, multiple victims of violent crimes are involved herein, and application of section 654’s prohibition against multiple punishment is precluded. Thus, while the question of different violent crime victims was not at issue in Kane, it is determinative of this issue in Masters’s appeal.
III-V
VI
The judgment is afiirmed.
Scott, J., concurred.
Parts III-V of this opinion are not certified for publication. (See fn., ante, p. 1124.)