A unanimity instruction is not required to determine which of several gun shots is the basis for an attempted murder conviction when the shots are closely connected in time. Appellant fired three shots at a homeowner during the course of a home-invasion robbery committed to steal money from a safe known to be inside. When appellant pointed the gun at the victim, the victim tried to push the hand holding the gun, and the gun discharged. The victim was hit and fell to the floor. Appellant then fired two more shots in rapid succession. Based on these acts, a jury convicted him of attempted murder, mayhem, first-degree robbery, and first-degree burglary, and corresponding firearm enhancements as to each count (Pen. Code, sec. 12022.53). Appellant argued a unanimity instruction should have been given or an election by the prosecutor should have been required in light of the prosecutor’s argument that attempted murder was proper whether or not the first shot was fired accidentally. The court rejected the argument in light of the continuous course of conduct exception. The victim, who was shot twice, testified all three shots were fired within seconds, and the jury must have either believed or disbelieved his testimony in total.
Penal Code section 654 may still apply to the substantive crimes even when both offenses carry a section 12022.53 enhancement. At sentencing, the parties and the court agreed that whether or not section 654 might otherwise apply, under People v. Palacios (2007) 41 Cal.4th 720, the section 12022.53, subdivision (d) enhancements, which say there shall be an additional 25-year-to-life term notwithstanding any other provision of law, mandated consecutive sentences for each offense. Appellant argued on appeal that Palacios does not so require, and that the trial court misunderstood its sentencing discretion. The appellate court agreed. The question before the court in Palacios was the application of section 654 to multiple section 12022.53 enhancements, not to the underlying offenses. Thus, despite the court’s belief to the contrary, section 654 could be still be applied to the offenses. Under the facts of this case, appellant could not be sentenced for both attempted murder and mayhem since the trial court noted both offenses were based on shooting the victim. The mayhem sentence was stayed. At to the robbery and burglary, the court did not make an express or implied finding of whether the offenses arose from an indivisible course of conduct. The case was remanded to determine whether the shooting was part and parcel of those crimes or whether it was an a separate act of gratuitous violence requiring separate punishment.