Filed 6/24/15 P. v. Silva CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.
FREDDY SILVA,
Defendant and Appellant. B253711
(Los Angeles County Super. Ct. No. KA097091)

APPEAL from the judgment of the Superi or Court of Los Angeles County. Mike Camacho, Judge. Affirmed.

Mark S. Givens, under ap pointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Steven D. Mercer and Tannaz Kouhpainezhad, Deputy A ttorneys General, for Pl aintiff and Respondent.

* * * * * * * * * *2 Defendant and appellant Freddy Silva wa s convicted by jury of four counts of attempted murder of a peace officer, two counts of carjacking, and multiple other felonies arising from defendant having led police on a high speed pursuit th rough the cities of West Covina and Pomona. He contends the four attempted murder counts, the special allegations the attempted murders were co mmitted with premeditation, and two of the counts for assault on a peace o fficer with a firearm fail for l ack of sufficient evidence. Defendant also argues the trial court comm itted instructional an d evidentiary error. We affirm. FACTUAL AND PROCED URAL BACKGROUND We summarize the facts materi al to the issues presente d on appeal. Some of the trial testimony and evidence has not been su mmarized because it is not germane to the issues raised on appeal. On February 25, 2012, shortly before 6:00 a.m., Miguel Valle got into his red Ford Expedition to head to work. Just as Mr. Valle started the engine, a man (who the victim later identified from a six-pack as defendant), knocked on hi s driver’s side window with the barrel of a shotgun and told him to shut off the engine. Mr. Valle said no, and defendant “racked” or co cked the pump action shotgun. Th at scared Mr. Valle, so he got out of the car. Defendant hit him in the foreh ead, just above his left eye, with the gun. Defendant told Mr. Valle not to look at him. Defendant and his accomplice then drove off in Mr. Valle’s car. The next day, Matt Nelson, an officer with the West Covina Police Department, was on patrol at around 3:00 p.m. when he noticed a red Fo rd Expedition in traffic. He saw that the front license plate was dangling, so he ran an inquiry for any violations and determined the car had been reported stolen during a ca rjacking the day before. Officer Nelson activated the lights on his patrol car and prepared to detain the Expedition as it pulled into a parking lot, but as soon as he activated his lights, the Expedition sped out of th e lot and drove over the raised ce nter median to make a U-turn. Officer Nelson turned on his sirens and star ted towards the median , intending to drive over it to pursue the Expedition. As Offi cer Nelson crossed over the median, he saw3 defendant point a shotgun out th e driver’s side window directly at him. The cars were about 15 to 20 yards apart. Defendant th en sped off, swerving through vehicle and pedestrian traffic, and interm ittently brandishing th e shotgun out the driver’s side window of the Expedition. Officer Nelson continued in pursuit. After running several red lights at high speeds, defendant slowed the car, and came almost to a stop. Defendant pointed the shotgun out the driver’s side window toward the rear, directly at Officer Nelson’ s patrol car. Officer Nelson saw a muzzle flash, heard a shot, and felt the concussion of a round traveling near or over his head. He saw defendant bring the shotgun back inside the car and “chamber” another round. Defendant slowly drove the Expe dition forward, continuing to fire back at Officer Nelson for a few more seconds. Defendant then took off again at a high rate of speed. Justin Schienle, another officer with the West Covina Police Departme nt, heard the radio traffic about the pursuit and caught up to the location. As he joined the pursuit near the intersection of Amar and Meadow Pass roads, Officer Schienle saw defendant point a shotgun at him out the driver’s side window as he drove by. Officer Schienle saw a muzzle flash in his direction. Still driving behi nd defendant, Officer Nelson th ought he heard a shot being fired, but was not certain. Defendant then st arted to turn right bu t quickly made a “full 360-degree turn” pulling in behind Officer Ne lson and in front of Officer Schienle. Officer Nelson made an abrupt U-turn ove r the center median, and then another, and pulled in behind defendant’s car once ag ain. Defendant raced through another red light, and Officer Nelson slowed to avoid a collis ion with cross-traffic. He had to speed up to 100 miles per hour to catch up with defendant. Another West Covina Police officer, Br yan Chalais, heard the radio traffic regarding the pursuit, including that the suspect was brandi shing and firing a shotgun at pursuing officers. Officer Ch alais joined the pu rsuit somewhere along Amar Avenue. Officer Chalais pulled in as the third patrol car behind Officer Schienle. They were travelling between 70 and 90 miles per hour. All officers had their lights and sirens activated.4 As they approached the Cal Poly Pomona campus, defendant slowed once again, and again pointed the shotgun out the driver’s side window at Officer Nelson. Defendant then sped off again, going the wrong way up an exit ramp of the 10 Freeway, forcing numerous vehicles heading down th e ramp to take “evasive” ac tions to avoid being hit by defendant. At that point, both Officer Ne lson and Officer Schienle lost sight of defendant. However, Officer Chalais was able to get on the 10 Freeway, on the correct side, and parallel defendant’s moveme nts on the freeway. Officer Chalais briefly lost sight of defendant after exiting the freeway, but found hi m again in a residential area with speed bumps. They were travelling so fast that Officer Chalais was getting “airborne” over the speed bumps so he slow ed down a bit to avoid losing control of his vehicle. He again briefly lost sight of defendant. At about this same time, James Sue ss, an officer with the Pomona Police Department, joined the pursuit. He had driven to the area in response to a dispatch call that West Covina officers were involved in a pursuit of a red Expedition that had entered the city of Pomona and the driver wa s shooting from the vehicle. Muhamet Vinca was in his white Honda Civic, waiting at the intersection of McKinley and Park Avenue in the city of Pomona. He saw the red Expedition “blow” right through the intersection, hit the curb and crash into a house. Defendant jumped out of the car and ran directly at Mr. Vinca po inting the shotgun. Mr. Vinca was frightened and got out of his ca r. Defendant got in and drove off. At that point, Officer Chalais entered th e intersection. He saw the red Expedition crashed into the side of a house. Almost im mediately, a white Honda drove directly at him and rammed the front of his vehicle. O fficer Chalais believed it was defendant in the car and broadcast that information on the radio. Officer Suess arrived at the intersecti on and saw Officer Chalais’s vehicle get rammed by the white Honda, an d Officer Chalais get out with his shotgun. The white car pulled away and sped off. O fficer Chalais returned to hi s car and pursued the white5 Honda, with Officer Suess follo wing. Officer Suess advised his Pomona dispatcher they were now in pursuit of a white Honda. After a brief chase at high speeds, the white Honda abruptly slowed down, causing the tires to smoke and screech. Defendant, poin ting the shotgun, got out of the car before it came to a complete stop, and walked toward the arriving patrol cars. Officer Chalais stopped his car, got out with hi s shotgun and took a position in the street behind his open door. Other officers, including Officer Suess, took cover behind their vehicles. Officer Suess and Officer Chalais were closest to de fendant, forming a sort of “triangle” with him in relation to where he was standing. Se veral officers were yelling at defendant to drop his gun and get down on the ground. Defendant ignored those commands. Officer Suess saw defendant pointing the shotgun and turn ing in his direction, so he got down to avoid being shot. Officer Chalais saw defendant make a “bac k and forth” motion with his shotgun as if panning for a target. Defendant held the sh otgun about chest-high like he was ready to shoot. Defendant then started to turn towa rd Officer Chalais. They were only about 20 yards apart. Officer Chalais believed defe ndant was going to shoot him, so he fired his weapon and shot defendant in the up per left shoulder. Defendant dropped his weapon, and fell to the ground. Defendant was taken into cu stody, and patted down for additional weapons. First aid was rendered until the paramedics arrive d and defendant was transported to the hospital. Defendant’s shot gun, which had a live round in the chamber, was recovered from his possession and secured as evidence. At the separate crime scene where defe ndant had crashed th e red Expedition, Adriana Frausto and her husband, the owners of the home into which defendant crashed, found defendant’s five-year-old son seated in the back of the car. The boy was crying and repeatedly saying “my father is dead.” Officers recovered th e following items from inside the Expedition: three expended 12-gauge s hotgun shells, one live shotgun shell, a .25-caliber Beretta handgun with a live round in the chamber and four in the magazine, a6 cell phone, a box of .25-caliber ammunition, a pistol loader, a child’s car seat, and mail addressed to defendant. Officer Nelson did not fire any shots during the high speed pursuit of defendant. He was concerned about using deadly force at high speeds, for the safety of other members of the public and for the second pers on he saw in the back of defendant’s car, who he believed could be a hos tage. Officer Nelson’s pursu it of defendant was “pretty fluid,” events happened very rapidly, one after another, with the overall pursuit taking no more than six to seven minutes. Neither O fficer Nelson, nor Officer Schienle was hit by any of the shots fired by defendant. Defendant was charged by amended in formation with fourteen counts: four counts of attempted premeditated murd er of a peace officer (Pen. Code, §§ 187, subd. (a), 664; counts 1, 2, 13 & 14); four counts of assault with a firearm on a peace officer (Pen. Code, § 245, subd. (d)(1); counts 3, 4, 5 & 6); two counts of carjacking (Pen. Code, § 215; counts 7 & 11); one c ount of evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 8); one count of child endangerment (Pen. Code, § 273a, subd. (a); count 9); one coun t of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 10); and one count of assault on a peace officer (Pen. Code, § 245, subd. (c); count 12). Multiple firearm allegations were also specia lly pled: (1) as to counts 1 through 4, defendant personally discharged a firearm in the commission of the offenses (Pen. Code, § 12022.53, subd. (c)); (2) as to counts 1 th rough 7, 11, 13 and 14 , defendant personally used a firearm in the commission of the offens es (§ 12022.53, subd. (b)); and (3) as to counts 1 through 7, 9, 11, 13 and 14, defendant persona lly used a shotgun in the commission of the offenses (§ 12022.5, subd. (a)). As to a ll counts, it was also specially alleged defendant suffered three prior felony convictions for which he served prison terms (§ 667.5, subd. (b)). Defendant pled not guilty to all charges and denied the special allegations. The case proceeded to trial by jury. During voir dire, defendant agreed to plead guilty to being a felon in possession of a fir earm (count 10). The parties stipulated to7 renumbering the remaining counts (original co unts 11, 12, 13 and 14 were renumbered, respectively as counts 10, 11, 12, and 13). 1 Trial of the prior convictions was bifurcated and defendant waived his right to a jury trial on those allegations. The prosecution presented the evidence described a bove. The audiotape of Officer Nelson’s radio transmissions during th e pursuit were played for the jury, as was the videotape from Officer Su ess’s dashboard camera show ing the end of the pursuit where defendant got out of the white Honda, pointing his shotgun at the officers, and was eventually shot. Iv an Chavez, a deputy and firearms examiner with the Los Angeles County Sheriff’s Department, testified that a shotgun of the type used by defendant would be lethal if fired at a person from a distance of 20 to 30 yards. Defendant did not testify in his own defense, but offere d the testimony of several witnesses. Gerardo Villa testified he saw the crash between the white Honda and Officer Chalais’s patrol car and he believed the patrol car rammed the Honda and not the other way around. Katherine Pavon, defendan t’s girlfriend, testified she saw defendant approximately a month after the incident an d described his wounds as primarily to his upper back, shoulder and side of his neck. John Treuting, a toxicologist, provided expert testimony about the addictive qualities of meth amphetamine, the effects of the drug on the body, defendant’s positive test results for methamphetamine upon arrival at the hospital for treatment for his injuries, and hi s opinion that, at the time of the chase, defendant was under the influence of methamphetamines. The prosecution offered, in rebuttal, the testimony of Deput y Troy Ewing, who assisted with the investigation of the incident. He attested to interviewing Gerardo Villa at the scene and that Mr. Villa said the police car hit the white Honda, but he also reported that he saw a Hispanic male with a shotgun walk up to the Honda, point the shotgun at the driver, force him to get out, and then drive off in the car.

1 We refer to the counts by th eir original numbers to be cons istent with the parties.8 Officer Tomas Ramirez was recalled to atte st to photographs taken of defendant’s injuries at the scene before defendant was transported to the hospital. The prosecution also requested the intr oduction of exhibit P69 as a business record. Exhibit P69 is a one-page document from defendant’s medical records consisting of a small diagram/drawings of an anterior and posterior human form marked to show the location of defendant’s injuries . There are a cluster of X’s along the upper front left arm, shoulder and neck area, along with a notatio n of “4 posterior w/hematoma.” In the section marked “brief history” it includes the following handwritte n language: “Pt was shot in the neck/shou lder by LAPD [with] shotgun wh ile attempting to escape a car impound in stolen vehicle. Pt was shoo ting at police.” The document, which is a preprinted form, also has various boxes chec ked off regarding defendant’s then-medical condition upon admission to the ho spital following the incident. Defense counsel objected to exhibit P69 in its entirety, stating his concern was “foundation. I don’t think it’ s allowed in under the busine ss record [exception]. . . . There’s no custodian, qualified witness, to authenticate.” The co urt ruled it was selfauthenticating because it had been obtained via a subpoena duces tecum, bearing an appropriate affidavit from the custodian of records, and also that it was a simple document that did not require “s ome type” of expert witness to explain the contents to the jury. After further discussion, defense counsel re sponded: “I understand what the court has deemed self-authenticating with an affida vit subpoena, but I still believe, even with that, it’s a violation of my c lient’s rights, confrontation cl ause, etc.” The court ruled exhibit P69 would be admitted over defense objection. The exhibit was displayed to the jury on the video screen without any accompanying witness testimony. The jury found defendant guilty of all 13 charges and found true all the special allegations. The court sentenced defendant to an aggregate state prison term of 151 years eight months consisting of an indeterminate te rm of 123 years to life, and a determinate term of 28 years eight months.9 This appeal followed. On August 14, 2014, this cour t granted defendant’s request to augment the record with a copy of prosecution exhibit P69. DISCUSSION 1. Insufficient Evidence Claims Defendant contends the four attempted murder counts, two counts of assault on a peace officer, and the premeditation allegations related to the murder counts all fail for lack of substantial evidence. We are not persuaded. “In assessing a claim of insu fficiency of eviden ce, the reviewing court’s task is to review the whole record in the light most fa vorable to the judgment to determine whether it discloses substantial evidence —that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defe ndant guilty beyond a reasonable doubt.” ( People v. Rodriguez (1999) 20 Cal.4th 1, 11 .) “The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.” ( Ibid .) “Reversal on this ground is unwa rranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” ( People v. Bolin (1998) 18 Cal.4th 297, 331; accord, People v. Manriquez (2005) 37 Cal.4th 547, 577 ( Manriquez ).) There were four attempted murder coun ts: Officer Nelson was the victim in count 1, Officer Schienle was the victim in count 2, Officer Suess was the victim in count 13, and Officer Chalais wa s the victim in count 14. Th e jury found all four counts were committed willfully and with premeditati on. Defendant contends the evidence does not show he harbored the specif ic intent to kill any of the four officers. He points largely to the fact none of the officers targeted were actually hit by defend ant or injured in any way. He further argues there was no direct evidence of defendant’s intent, and that the circumstantial evidence supported more than one reasonable conclusion about defendant’s true intent, including that he had no intent to kill, but only intended to fire at the officers’ cars to disable them and aid his attempt to flee. “[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murde r, may in many cases be inferred from the10 defendant’s acts and the circumstances of the crim e. [Citation.] ‘There is rarely direct evidence of a defendant’s inte nt. Such intent must usually be derived from all the circumstances of the attempt, incl uding the defendant’s actions.” ( People v. Smith (2005) 37 Cal.4th 733, 741 ( Smith ).) As defendant concedes, th e court did instruct with CALCRIM No. 225 regarding the jury’s consid eration of circumstantial evidence on the
issue of mental state. 2 As to Officers Nelson and Schienle, the evidence showed defendant brandished the shotgun at them multiple tim es during a high-spee d and dangerous pursuit. It further showed that during that chase, defendant inte ntionally slowed down the car almost to a stop, pointed the loaded shot gun directly at each of th em, and fired at them from a distance at which a shotgun may be lethal. As to Officer Nelson, this occurred more than once. Both officers attested to seeing th e muzzle flash, and Officer Nelson felt the concussion of the rounds passing by him. As to Officers Suess and Ch alais, the evidence estab lished defendant made the decision to abruptly end the pursuit, braking so hard as to cause the tires to squeal and smoke. He exited the car before it even came to a complete stop, shotgun in hand. The shotgun had a chambered live round and defe ndant held it up, in a ready-to-shoot position. Officer Suess describe d defendant’s actions as no lo nger seeking to escape and evade, but moving to “advance” toward the officers who had been pursuing him. Officer Chalais testified defendant moved the shotgun back and forth, chest-high, panning for a

2 The instruction read, in relevant part: “[B]efore you may rely on circumstantial evidence to conclude that the defendant had the required intent and mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the require d intent and mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and mental state and another reasonable conc lusion supports a finding that the defendant did not, you must conclude that the required intent and mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”11 target. Officer Suess and Offi cer Chalais were the closest o fficers to defendant, forming a sort of triangle with him, and Officer Ch alais was only 20 to 30 yards from defendant, within a lethal shooting range. Both Officer Suess and Offi cer Chalais described seeing defendant turn in thei r respective directions pointing the gun. Before defendant was able to turn fully in OfficerChalais’s direction, Officer Chal ais fired at defendant, ending the confrontation. Looking at the totality of th e circumstances and specifica lly at defendant’s actions, the record contains ample evidence of intent to kill all four officers. ( Smith , supra , 37 Cal.4th at p. 741.) Simp ly because defendant, who wa s firing from a moving vehicle, missed two of his intended targets (Office rs Nelson and Schienle) does not mean the record lacks the requisite evid ence of intent to kill. ( People v. Lashley (1991) 1 Cal.App.4th 938, 945 ( Lashley ) [finding that evidence of fi ring “toward the victim at a range and in a manner that could have inflic ted a mortal wound had the bullet been on target is sufficient to support an in ference of intent to kill”]; see also People v. Perez (2010) 50 Cal.4th 222, 230 [firing of a single bu llet at group of eight persons sufficient to support a finding of intent to kill].) Similarly, Officer Chalais’s actions at the end of the pursuit, thwarting defendant’s ability to fire on him or Officer Suess, does not compel the conclu sion defendant lacked the requisite intent to kill. ( Lashley , supra , 1 Cal.App.4th at pp. 945-946 [rejecting the defendant’s “untenable theo ry that an unsuccessful” a ttempt at murder “constitutes conclusive evidence of lack of intent”]; see also People v. Avila (2009) 46 Cal.4th 680, 702 [the degree of resulting inju ry to the victim is “is not dispositive” of the defendant’s intent; “a defendant may properly be convicte d of attempted murder when no injury results”].) Furthermore, we reject defendant’s sugges tion we should conclude, contrary to the jury, that the circumstantial evidence suppor ts the conclusion that defendant intended to shoot at the officers’ cars but not to kill them, and therefor e the attempted murder counts must be reversed. “Whether a defendant po ssessed the requisite intent to kill is, of course, a question for the trier of fact. While reasonable minds may differ on the12 resolution of that issue, our so le function is to determine if any rational trier of fact could have found the essential elemen ts of the crime beyond a reas onable doubt. [Citations.] Due process of law does not require a re viewing court to reweigh evidence or redetermine witness cred ibility. In fact, it would distort the process if this court, reading a ‘cold’ record, substituted its judgment for that of the trier of fact who saw and heard the live witnesses. Our role is to determine the legal sufficiency of the fo und facts and not to second guess the reasoning or wi sdom of the fact finder.” ( Lashley , supra , 1 Cal.App.4th at p. 946.) In any event, our view of the record is that the only reasonable conclusion from the evidence was that defendant intended to kill all four officers. The same evidence discu ssed above constitutes subs tantial evidence of premeditation supporting the jury’s true findi ngs as to all four counts of attempted murder. ( Manriquez , supra , 37 Cal.4th at p. 577 [“ ‘[t]h e process of premeditation and deliberation does not require any ex tended period of time’ ”]; accord, People v. Mendoza (2011) 52 Cal.4th 1056, 1069, and People v. Brito (1991) 232 Cal.A pp.3d 316, 323-324 [fact that the defendant made decision, within a matter of a few seconds, to shoot fleeing victim in back did not defeat finding of deliberation].) With respect to counts 13 and 14 pertai ning to Officers Suess and Chalais, defendant also argues there is insufficient evidence he took a direct but ineffectual act toward accomplishing the attempte d murders of those two officers. “For an attempt, the overt act must go beyond mere preparation and show that th e killer is putting his or her plan into action; it need not be the last proxi mate or ultimate step toward commission of the crime or crimes [citation], nor need it sa tisfy any element of the crime [citation].” ( People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8.) Defendant argues primarily that he did not fire at either officer and did not point the shotgun directly at either officer. Both officers testified he was only turning toward them or panning for a target, not that the barrel was pointed at them as a specific target. The evidence discussed above, co nsidered with the appropriate deference to the jury’s verdict, constitutes ample evidence defendant to ok a direct, but ineffectual step toward the attempted murder of Offi cers Suess and Chalais.13 Finally, defendant argues counts 5 and 6 (assault with a firearm on Officers Chalais and Suess) are not supported by su fficient evidence. Defendant contends the evidence, taken as a whole, shows defendant had not even seen the officers, let alone formed a general intent to commit an assault. The argument is not persuasive. The same evidence discussed above is mo re than adequate to suppor t the assault with a firearm

counts. 2. The Unanimity Instruction Defendant contends the cour t committed instructional erro r by refusing to give the unanimity instruction (CALCRIM No. 3500) as to counts 1 and 3, the attempted murder and the assault with a firearm counts pertaini ng to Officer Nelson. We review a claim of instructional error de novo. ( People v. Alvarez (1996) 14 Cal.4th 155, 217.) We find no

error. There is no dispute that “[i]n a cr iminal case, a jury verdict must be unanimous. . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. Therefore, cases have long held that when the ev idence suggests more than one discrete crime, either the prosecu tion must elect among the crimes or the court must require the jury to agree on the same criminal act.” ( People v. Russo (2001) 25 Cal.4th 1124, 1132 ( Russo ), citations omitted.) Here, the court did instruct with CALC RIM No. 3500, but limited its application to counts 8 (evading a peace officer) and 9 (child endangerm ent), specifically denying the defense request to give the instruction as to counts 1 and 3 as well. The instruction read to the jury prov ided: “The defendant is charged with evadin g a peace officer with wanton disregard for safety in Count 8. [¶] The defendant is charged with child abuse likely to produce great bodily ha rm in Count 9. [¶] The Pe ople have presented evidence of more than one act to prov e that the defendant committed these offens es. You must not find the defendant guilty unless you all agr ee that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed.”14 The purpose behind the unanimity inst ruction is “ ‘to prevent the jury from amalgamating evidence of multip le offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyon d a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.]” ( Russo , supra , 25 Cal.4th at p. 1132.) The instruction is appropriately given “ ‘when conviction on a single count could be based on two or more di screte criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty ve rdict on one discrete criminal event.’ [Citation.]” ( Id . at p. 1135, italics added.) What has become known as the “continuous course of conduct ” exception to the unanimity in struction, applies when the defendant’s “ ‘ “acts are so clos ely connected that they form part of one and the same transaction, and thus one offense.” ’ ” ( People v. Hernandez (2013) 217 Cal.App.4th 559, 572.) Where the exceptio n applies, the instruction need not be given. ( Ibid .) Defendant contends the counts regarding Officer Nelson, the initial pursuing officer, consisted of multiple separate acts of brandishing and/or firing the shotgun and that the jury had to be instru cted to agree on which of thos e discreet acts constituted the attempted murder and the a ssault with a firearm. We disagree. The evidence does not suppo rt a parsing of the pursuit by Officer Nelson into discreet criminal acts. Officer Nelson testified to the “fluid” nature of the pursuit, that events unfolded rapidly, and that the entirety of his pursuit of defendant took no more than six to seven minutes. Defendant was driving at high rates of speed, in a reckless manner, intermittently br andishing or firing the shotgun at Officer Nelson at the same time. The trial court pr operly declined to give the unanimity instruction as to counts 1 and 3 based on the continuo us course of conduct exception. 3. The Admission of Exhibit P69 Defendant contends the cour t abused its discretion in admitting the prosecution’s exhibit P69, the one-page report from defend ant’s hospital medical records. Respondent contends defendant forfeited any substantive objection to the ex hibit, having stated only a foundational objection at trial. Respondent further contends , on the merits, the document was properly admitted, and that any error in its admission was harmless.15 We first address the admission of the ex hibit as a business record. Defendant properly preserved an objection on this ground. “A trial judge is vested with wide discretion in determining whether a proper foundation has been laid for admission of business records under th e business records exception. [C itation.] ‘Where the trial court has determined that the foundation laid wa s sufficient to support the introduction of evidence under the business reco rds exception, and the record reasonably supports this determination, its conclusion is binding on the appellate court.’ [Citation.]” ( People v. Zavala (2013) 216 Cal.App.4th 242, 245-246.) The court determined the foundation for the exhibit as a bus iness record was properly established by way of affidavit atta ched to the medical re cords delivered to the court pursuant to a subpoena. (Evid. Code, §§ 1271, 1560, 1561; see also Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1045 [section 1561 was amended in 1996 “ ‘to ensure that such [nonpar ty business] records may conti nue to be admissible without requiring their authenticity to be proved th rough live testimony from the custodian of records or other qualified witness’ ”], and People v. Blagg (1968) 267 Cal.App.2d 598, 609-610 [hospital records properly authenticated as to foundation by wa y of affidavit].) The appellate record was augmented with a copy of exhibit P69, but there is nothing in the record regarding the contents of the custodian’s affidavit. Nor does the record contain any objection that the affidavit was defective in any way. The objection as to foundation was only that it should have been esta blished with live testimony. Defendant has not affirmatively shown any abuse by the court in finding a proper foundation for admission of exhib it P69 as a business record. The question then becomes whether it wa s proper to admit exhibit P69 without redaction of the apparent hearsay statemen t of a police officer documented by hospital personnel in the “brief history” section of the record to the effect that defendant had been shot “by LAPD” officers, “while attempting to escape,” and “was shooting at police.” “Multiple hearsay is admissible for its truth only if each hearsay layer separately meets the requirements of a hearsay exception.” ( People v. Arias (1996) 13 Cal.4th 92, 149, italics added.)16 Assuming for the sake of argument there wa s no waiver and that the court erred in admitting exhibit P69 without re dactions, any such error wa s harmless by any standard. The exhibit was offered by the prosecution du ring rebuttal, appare ntly in response to testimony by defendant’s girlfriend that she perceived the wounds suffered by defendant were to his back, suggesting he was not fa cing the officers when he was shot. The exhibit was briefly shown to the jury en larged on the video monitor without any additional accompanying testimony. It was not highlighted in argument. The prosecution evidence pr esented against defendant in its case-in-chief was substantial. The jury heard numerous office rs, and two carjacking victims, testify to defendant’s dangerous and violent behavior during the course of a high-speed pursuit through congested city streets with defendant’ s five-year-old son in the backseat of the first car defendant commandeered . The jury saw photographs of defendant’s injuries, heard audiotape of the radio transmissions du ring the pursuit, and videotape from Officer Suess’s dashboard camera showing the final st ages of the pursuit, including the shooting of defendant at the conclusion of the chase. In relation to such evidence, any prejudice to defendant from the admission of exhibit P69 was harmless. DISPOSITION The judgment of conviction is affirmed. GRIMES, J.
We concur: BIGELOW, P. J.

RUBIN, J.