There was no prosecutorial misconduct where the prosecutor questioned his witness on whether the defense had tested the gloves used in the offense, or where the prosecutor called a witness he knew would not testify. Appellant contended that the prosecutor committed misconduct by asking his expert whether the defense had asked to test the gloves used in the murder case. The appellate court rejected the argument, concluding that the court properly gave the jury a strong curative admonition following defense counsel’s objection. Defense counsel’s “vigorous argument” further negated any potential prejudice. Further, the jury was properly instructed on the burden of proof, and that neither side was required to call all witnesses. Appellant also contended that the prosecutor committed misconduct by calling a witness, appellant’s girlfriend, knowing that she had previously refused to testify. Appellant’s failure to object below waived this issue on appeal. Further, it was not established that the prosecutor knew the witness would again refuse to testify. Appellant also contended that the prosecutor’s argument regarding the witness’s refusal to testify was intended so that the jury would infer that she declined to testify to avoid incriminating appellant. The appellate court found that such an inference was permissible, although it was more likely the jurors understood that the reluctance of the witness to testify had to do with her gang affiliation.
There was no error in failing to instruct the jury on the lesser included offense of negligent discharge of a weapon. Appellant also argued that the court was required to sua sponte instruct on the lesser included offense of negligent discharge of a gun. The appellate court agreed that the offense was a lesser included offense, but held that the court was not required to instruct on it because there was no evidence that would have supported a conviction under that statute but not section 246. The appellate court also held that neither section 654 nor the merger doctrine barred enhancement of appellant’s sentence under section 12022.53, subdivision (c). Section 12022.53(c) reflects a legislative intent that murders committed by intentionally discharging a firearm generally be punished more harshly than other murders. Applying the merger rule in this context would frustrate that intent. Nor did section 654 apply. The term imposed for murder punished appellant for the killing; the enhancement was based upon the particular method appellant chose to accomplish this. Finally, the trial court properly stayed the section 12022.53, subdivision (b) enhancements for counts 1 and 2 pursuant to People v. Bracamonte.