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Name: People v. Velasquez
Case #: F062517
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/12/2012

Assault with firearm instruction (CALCRIM No. 875) erroneously permitted jury to convict defendant of multiple counts against various victims who were inside the residence, based on his shooting in the direction of a single person who was located in the garage. Defendant fired his weapon 10 times at an occupied residence and was convicted of numerous offenses arising from this conduct. One of his challenges on appeal was to the five convictions for assault with a firearm (Pen. Code, § 245, subd. (a)(2)), based on an erroneous instruction. Held: Reversed in part. The five counts of assault with a gun each identified a separate member of the residence hit. CALCRIM No. 875 refers to the application of force “to a person or someone,” which could have allowed the jury to convict defendant of the five counts based on the risk of injury to any member of the family. Because one named victim, Maria, was at risk of injury based on her location in the garage (at which the shots were aimed), the instruction allowed the jury to convict defendant of assault as to the other named victims without considering whether his act of shooting at the residence would “directly and probably result in the application of force to” the other named victims. Because no other instruction or argument “clarified the requirement that each victim must have been subject to the application of force” the error was prejudicial, requiring reversal.