1 Filed 7/31/13 P. v. Hickey CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered publi shed for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)

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THE PEOPLE, Plaintiff and Respondent,

v. JOHN LEE HICKEY, Defendant and Appellant. C070698 (Super. Ct. No. CM032218)

This appeal arises out of a 26-hour st andoff with law enforcement, during which defendant John Lee Hi ckey fired several times at th e peace officers surrounding his residence. Defendant was convicted on three counts of assault with a firearm upon peace officers with enhancements for personal discha rge of a firearm (Pen. Code, §§ 245, subd. (d)(1), 12022.53, subd. (c)), 1 two counts of resisting a peace officer (§ 69), exhibiting a firearm in the presence of a peace officer (§ 417, subd. (c)), and two counts of child endangerment (§ 273a, subd. (a)). The tria l court sentenced defendant to serve an aggregate term of 49 years and 4 months in state prison.

1 Undesignated statutory references are to the Penal Code.2 On appeal, defendant contends (1) the trial court erred in excludi ng evidence of an alleged sexual assault against his daughter C ., thus depriving defendant of his defense that he acted in defense of his children, (2) the jury instructions improperly stated the law on refusal of admittance of peace officers serv ing a search warrant, (3) the evidence was insufficient to prove defendant fired shots in the direction of three peace officers, (4) the prosecutor engaged in misconduct by arguing defendant shot at Detective Nicodemus after the trial court struck th e pertinent testimony from the re cord, (5) the trial court erred in failing to give a unanimity instruction for the three counts of assault upon peace officers with a firearm, (6) th e jury should have been instructed on self-defense or imperfect self-defense for the charges of a ssault with a firearm upon peace officers, and (7) the trial court erred by making dual use of facts in imposing th e upper term for the assaults upon peace officers with a firearm. We reject defendant’s claims of prejudici al errors at trial. With regard to defendant’s first contention, we conclude any evidence regarding the alleged sexual assault of defendant’s daughte r would have offered no defe nse to the charges against defendant because his daughter was not at th e scene where the sta ndoff occurred. Next, the jury instruction on refusa l of admittance was supporte d by the evidence. Third, sufficient evidence established that defendant fi red shots at three officers as charged. Fourth, defendant forfeited the issue of pr osecutorial misconduct because he did not object to the alleged prosecutorial misconduct at tr ial. Fifth, the tria l court had no duty to give a unanimity instruction for the charges of assault upon a peace o fficer with a firearm because the same eviden ce applied to each of the three offi cers. Sixth, there was no error in not giving the self-defense instructions because defendan t had no valid claim of selfdefense because he did not challenge the valid ity of the search warrant or allege the officers acted unlawfully or with unreasonable force in ex ecuting the warrant. Finally, we conclude the imposition of the upper termis warranted based on a single aggravating factor the trial court properly relied upon. Accordingly, we a ffirm the judgment.3 FACTUAL AND PROCEDURAL HISTORY Prosecution Evidence On the afternoon of February 9, 20 10, seven deputies from the Butte County Sheriff’s Department went to defendant’s residence at 202 Grimy Gulch Road in Bangor, California, to serve a search warrant for fire arms and ammunition. The deputies all wore clothing that identified them as sheriff’s de puties. The deputies discovered that the only gate to defendant’s residence was locked with a padlock and chain. Defendant’s residence appeared to consist of two single-w ide trailer homes that were placed several feet from each other. Cars and debris littered the rest of the large property. The deputies pushed over a weak part of the wire fence and went to the first door of the residence they came upon. Deputy Aaron Staup knocked loudly on the door and yelled several times, “Sheriff’s office, search warra nt, demanding entry.” One of the deputies kicked the door open and discovered it was “a dead end” to a small room. The deputies proceeded to the north side of the reside nce, where they repeated the knock/notice procedure at another door. Ever y window of the residence was covered so the deputies could not see insi de. Approximately 30 seconds after the knock/notice, one of the deputies unsuccessfully tr ied to kick the door in. Kimberly Hickey -– defendant’s wife at the time -– was in a bedroom of th e trailer, getting ready to attend a domestic violence class. 2 She heard the deputies knocking an d repeatedly anno unce themselves and that they were there to search for weapons. Deputy Will Olive locat ed a nearby axe and created a small hole in the door next to the door handle. Almost immediately af ter the hole was formed, someone on the other side of the door jabbed a large wooden stick through the door at Deputy Olive. The stick

2 Due to shared surname and for the sake of clarity, we refer to members of the Hickey family by their first names.4 “punched” Deputy Olive in the chest and took him by surprise. The stick was quickly withdrawn. From inside the trailer, a male -– later identified as defendant -– began to shout, “Get the fuck off my property!” and, “The kids aren’t here.” Defendant also threatened to shoot the officers. The deputies immediat ely took cover behind a truck located 15 yards away from the door. A couple of minu tes later, Deputy Staup heard defendant say, “I can see you behind the truck, see you behind that truck, and I’m going to shoot you.” Deputy Staup ran to one of the patrol vehicles to retrieve a sniper rifle because he had special training as a sniper for the SWAT team. He retrie ved his rifle and scope from the patrol vehicle. Though he was 64 yards from the trailer, the rifle scope’s magnification made it appear only five yards away. Thro ugh the scope, Deputy Staup saw a hand stick out of the hole of the door, waving a revol ver in the direction of the deputies at the perimeter. Deputy Olive testified defendant “[s]tarted yelling he was going to kill us; calling us fucking pussies; telling us to come do our job; telling us if we wanted a standoff, we have one now; te lling us he had bullets that would go through metal; yelling that he could see us behind the truck; we wouldn’t see our families tonight.” The deputies sought cover behind vehicles. Deputy Staup tried to ca lm defendant down by telling defendant they “weren’t there for kids” but only to serve a search warrant for firearms. The deputy also asked whether there were any children present, but defendant did not respond. Defendant nailed something over the hole in the door. The deputies he ard loud banging and the use of a power saw from inside the residence. Kimberly testified defendant was cutting the floor because he was angry. Defendant told her “he wasn’t going to give up because he wasn’t going to be lo cked in a cage.” Defendant’s mother, Edna, and a friend na med Kenny arrived about an hour later and rammed her car into the still-closed gate until they were able to drive onto the property. Edna appeared to be very upset, angry and told the deputies she wanted them5 arrested for trespassing. She also told the deputies that “if she had the guns, she would kill [them] herself.” Edna de nied there were any children in the residence, telling the deputies they were all at her house. E dna and defendant communicated several times, and she relayed the offer that “[i]f he would come out unarmed onto the porch and talk,” the deputies would put their guns down. Th e deputies also offered medical assistance when they learned defendant and his wife had heart problems. Edna remained at the property for a couple of hours before she left. Several times during the standoff, the depu ties believed defendant would come out of the trailer. At other times, defendant woul d yell that he could see the deputies behind the truck and threatened that he had armor-piercing rounds. Shortly after 4:00 p.m., a shot rang out and Deputy Staup heard “BB’s falling around [him]” that “indicated a shotgun” had been fired in his direction. At approximately 8:30 p.m., Sergeant St eve Boyd set up a co mmand post for the 16 members of his SWAT team that had arrived at the property. The SWAT team members formulated a plan to retrieve Depu ty Martin, who had been the sole officer on the east side of the property for more th an six hours. Sergeant Boyd made his way toward Deputy Martin’s position along with a team that incl uded Sergeant Bell, Deputy Allen, Sergeant Collins, and Detective Nicodemu s. They used bolt cu tters to cut through a fence on the east side of the property. Sergeant Boyd heard defendant call out, “I see you by the pole.” The SWAT team members we re standing next to a telephone pole at the time. Sergeant Boyd heard six gunshots fro m what sounded like a big gun being fired from the trailer toward his position. Sergean t Boyd grabbed Deputy Martin and threw him to the ground before himself taking cove r on the ground. None of the deputies was injured. After about four minutes, the officers retreated. Around midnight, one of the officers unsucce ssfully attempted to shoot out a light on the trailer.6 At approximately 2:00 a.m., SWAT team officers fired a total of 10 gas canisters under the trailer to get defend ant to surrender. Shortly ther eafter, Sergeant Boyd saw a weapon being fired from the trailer. There were a lot of rounds fired at that point. At 2:50 a.m., Officers Love and Bailey were pos itioned approximately 70 to 75 yards to the southeast of the residence. Officer Love hear d six rounds fired from the trailer. Officer Love twice heard “the sound of bullets going through the grass about 30 feet to [his] right.” The first time the grass was hit, the bullet seemed to come from small-caliber fire and the second time from a shotgun. During the fifth shot, Officer Love saw “a big flash of the muzzle blast” that seemed to be aimed directly at him and Office r Bailey. Officer Love also heard “multiple pellets going past [them].” Officer Bailey returned fire. Immediately after Officer Bailey’s shot, defendant fired directly back at them. Officer Love fell to the ground and yelled, “I’ve been hit.” Officer Bailey radi oed for help in evacuating from the post. After a short while, Officer Love realized he had not been shot. Instead, he had been knocked down from the gas and dirt resulti ng from Officer Bailey firing his gun. As Officers Love and Bailey were being evacuate d, defendant yelled out, “man the fuck up,” he had gotten his “second wind,” and again ca lled the officers “pussies.” Defendant then yelled he had explosives in the trailer. The Butte County SWAT team was re placed by the Redding Police Department SWAT team, which remained th rough the night. When the Bu tte County team returned the next morning, they used a heavily armored vehicle to switch team members from various positions around the property. Sometime after midnight and before th e end of the standoff, defendant told Kimberly he had shot and hit an officer. He also said “he was going to make law enforcement shoot him and he would not surrender.” Just as the officers were finalizing a plan to redeploy gas canisters to the trailer at 2:00 p.m., Kimberly and two children ran ou t of the trailer. She had delayed leaving7 because she was afraid defend ant would kill himself. Kimberly was crying and appeared to be shaken and scared. At 3:33 p.m., the Chico Police Departme nt SWAT team used the armored vehicle to approach the trailer, puncture it, and send in three gas canisters. As a result, defendant came crawling out of the trailer holding a s tick. Defendant appeared to be very apologetic and asked if anyone had been hurt. Upon being in formed an officer had been shot, defendant began to cry and told the offi cers “he was sorry, he didn’t mean to hurt anybody.” The officers called for medical attention becaus e defendant was complaining about his heart. Defense Evidence Defendant testified on his own behalf as fo llows: He and Kimberly had lived at 202 Grimy Gulch Road for 17 years. They had 10 children together. However, most of the children were not living with defendant and Kimberly . Four had run away, and defendant had taken three out of town to pr otect them after the police had previously shown up at the property. On February 9, 2010, the only children at the reside nce with defendant and his wife were Michaela and Jesse. Earlier that day, defendant called the Oroville Police Department to try “to get aid for [his] childre n.” Defendant planned to take Kimberly to a parent support group later that day. Defend ant was in a great deal of physical pain and lay down to rest before taking her to her ap pointment. Defendant awoke to the sound of pounding, noise, and screaming. Defendant’s children were sc reaming, “Help us, Daddy. Help us.” Defendant did not know what was going on. Defendant got up, took his s tick with him, and went to the door. He felt a strong urge that he needed to defend his family. He placed the s tick through the hole in the door and fell to his knees without the aid of the s tick. Kimberly and th e children were in the other trailer on the opposite si de of their residence.8 Defendant recalled talking with his fath er on the phone but could not remember for how long. He was experiencing “extre me mental distress” because he was “not getting help” for “what was going on in [his] lif e.” Defendant was not aware of what was going on outside the trailer because the windows were all covered. At some point, defendant heard sounds “like bricks or wood or rocks” being thrown against the trailer. In the chaos, he “was trying to de fend [his] kids.” Defendant “just lost all track of time and everything, an d [did not] know what [he] was doing at that time.” Defendant had firearms in the trailer, whic h he used “[c]ountless times” to shoot at trees and other targets on the property. He was aware there was a restraining order against him, but was unable to read it and th erefore did not know he was prohibited from possessing firearms. At some point during the night, defendant thought he had been shot by a shotgun. He yelled for his children to “[g]et on the fl oor.” He “vaguely” he ard Kimberly and his children coughing and gagging bu t never was aware of any tear gas inside the trailer. Defendant eventually made Kimberly and the child ren leave even though Kimberly said, “I want to st ay with you till the end.” Late r, when white gas filled the trailer, defendant slid out of the trailer on his stomach because he weighed 335 pounds at the time. The officers ran up to him, insu lted him, and hit him repeatedly with their knees. Rebuttal Evidence Called by the prosecution, Kimberly testif ied defendant was present with her in court on May 11, 2009, when she and defendant were ordered not to have any firearms. When the deputies showed up to serve the search warrant on February 9, 2010, defendant was not asleep as he had claimed. Instea d, defendant and Kimberly were on the porch getting ready to attend a dom estic violence class.9 Detective Chris D’Amato worked as a hosta ge negotiator during the standoff. He testified defendant told him over the telephone: “I’m well versed in the arts of death.” “Nothing wrong with my trigger finger.” “I see the people behind the truck, and I will shoot them.” “Kim’s not here, nobody’s here .” “You are forcing my hand, there’s going to be a barrel full of pigs, it’s going to be lo ud.” “It’s going to go real fast. I got my second wind, enough to end the game.” “I ha ve more than one gun, but it’s not the guns you should be worried about.” Detective D’Amato noted defendant was extremely upset his children had been taken from him. Defendant also expresse d concern about his daughter having been raped. The detective tried to get more information about the alleged rape, but defendant’s responses on the subject were vague and di sjointed. Detective D’Amato learned the incident had been reported to the sheriff’s office and involv ed “underage kids engaging in sexual activity” and “definitely wasn’t rape.” Defendant believed there had been an injustice for lack of prosecution. Defendant also suggested the standoff could be ended by bringing his children to him. Eventua lly, defendant unplugge d the telephone. DISCUSSION I Exclusion of Evidence of Alleged Sexu al Assault on Defendant’s Daughter Defendant contends the trial court erred by excluding “evi dence that [his] daughter had been molested while in fo ster care, that he knew of th e molestations, and that his resistance was motivated by a reasonable appr ehension that the officers were on his property to take the children ba ck to foster care.” In so arguing, defendant concedes he acted “unreasonably” in “defense of his ch ildren.” As defendant notes, his argument depended on his belief his daughter, C., was rape d while she was in foster care. As we explain, the argument has no merit.10 A. Exclusion of Evidence Regarding Alle ged Rape of Defendant’s Daughter Prior to the start of trial, the prosecution made a motion “that the alleged sexual assault of the defendant’s daughter should be excluded as both irrele vant and prejudicial and a waste of time.” The pr osecutor informed the court the allegation arose from an incident in May 2009, when “the defendant’s son allegedl y saw his 15-year old sister cuddling up and getting felt up by the foster moth er’s 23-year-old son. That son by the name of James told [defendant] about this particular activity, in which the defendant spoke to his 15-year-old daughter, who said it didn’t happen and wa s apparently, quote, unquote, ‘uncooperative.’ ” During an inves tigation into the clai m, the daughter, C., denied there was any sexual activity. Thereaft er she gave defendant a letter stating she was touched sexually. De fendant then reported the incide nt to the Butte County Sheriff’s Department in August 2009. C. later claimed the contact was consensual. The prosecutor also noted all 10 of de fendant’s children we re removed from his home in January 2009 based on allegations he ha d been abusing them with a baseball bat. Two of the children, Michaela and Jesse, ran away from their foster care placements and were at defendant’s residence on February 9, 2010. At the time, defendant was under a restraining order prohibiting him from having any contact with his children because “he was not following the Court orders of family c ourt in that he was not testing for drugs, he was not attending anger management, and he wa s not attending supervised visitations in an appropriate manner.” Neither Michaela nor Jesse made any allegations of abuse while in foster care. Defense counsel opposed the motion, arguing that if the prosecution were going to allow Detective D’Amato to testify, the alle gation of rape would provide the necessary context. The defense explained that “it certainly has to be understood as far as a context as to what was taking place at the time that law enforcement was having its contact with [defendant] at the Grimy Gulch Road address.”11 The trial court granted the motion to exclud e, stating: “The Court has carefully considered counsel’s motions in limine and argument on this issue. I have reviewed Evidence Code 210, which is cited by the Peopl e, and also Evidence Co de 352. [¶] The Court is granting the motion to exclude th e alleged sexual assault of Defendant’s daughter as irrelevant. I find that it would conf use the issues before this jury. Just the People’s recitation of the underlying chronolo gy of the children being removed and then C[.]’s statements, various stat ements, indicate to this Cour t that a discussion of those issues in this trial would be confusing to the jury and woul d take up an undue consumption of time, would create a mini trial for the allega tions. [¶] And, I’ve looked at every possible way in which those statements could be probative to issues before this jury or to an affirmative defe nse of any kind, and I do not fi nd that there is any relevance to the allegations for the crimes that the defendant is charged with.” B. Unreasonable Self-defense Was Not an Available Defense We agree with the trial court that the a lleged sexual assault of C. had no probative value and offered no defense to th e charges against defendant. In his argument, defendant fails to menti on a critical fact: C. was not present in the trailer or at the property during defend ant’s standoff with law enforcement. As the California Supreme Court has held, “both sel f-defense and defense of others, whether perfect or imperfect, require an actual fear of imminent harm.” ( People v. Butler (2009) 46 Cal.4th 847, 868.) De fendant was not entitled to rely on his belief that C. had been sexually assaulted seven months before the stan doff to justify his shooting at the officers. Because C. was neither in the trailer nor even on the property with defendant during the standoff, defendant could no t have tendered a defense based on defense of C. Moreover, defendant concedes he engaged, at best, in unreasonable self-defense. Unreasonable self-defense app lies to charges of murder, not assault on or resisting peace officers. As the Supreme Court has explaine d, “ ‘imperfect self-defense is not an12 affirmative defense, but a de scription of one type of voluntary manslaughter.’ ” ( People v. Michaels (2002) 28 Cal.4th 486, 529.) Thus, “ ‘[f]or killing to be in self-defense, the defendant must actually and reas onably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is “imperfect selfdefense,” i.e., “the defendant is deemed to have acted without malice and cannot be convicted of murder,” but can be convicted of manslaughter. [Citation.]’ ” ( People v. Battle (2011) 198 Cal.App.4th 50, 72, italics added.) The defense of imperfect self-defense ne gates for the charge of murder “the crucial characteristic of ‘mali ce aforethought’ . . . , i.e., awareness that one’s conduct does not conform to the expectations of society” so that reduction to voluntary manslaughter is appropriate. ( People v. Hayes (2004) 120 Cal.App.4th 796, 802.) By contrast, “[a] person who carefully weighs a course of action, and chooses to kill after considering reasons for and against, is nor mally capable of comprehending his [or her] societal duty to act within the law. ‘If, despite such awareness , he [or she] does an act that is likely to cause serious injury or death to another, he [or she] exhibits that wanton disregard for human life or antisocial motivation that constitutes malice aforethought.’ ” ( People v. Hayes, supra, 120 Cal.App.4th at pp. 802-803.) However, the charges of assault on and resisting peace officers 3 do not contain the “element of knowing violation

3 Section 245, subdivision (d) (1), prov ides, “Any person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that th e victim is a peace officer or firefighter engaged in the performance of his or her dutie s, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years.” Section 69 provides, “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resist s, by the use of force or violence, such officer, in the performance of his [or her] dut y, is punishable by a fine not exceeding ten13 of social norm” and are thus not subject to exoneration for imperfect self-defense. ( Id. at p. 803 [rejecting imperfect self-defense fo r the charge of mayhem because it does not negate any intent to “vex, injure, or annoy”].) Defendant was not entitled to present evidence of his belief that his daughter had previously been sexually a ssaulted to defend against th e charges for which he was convicted. C. was not at the property and thus not in any imminent harm. And, the possibility defendant’s other children might be subject to similar harm later when returned to foster car e also did not constitute imminent danger that justified defendant’s standoff with law enforcement. Accordingly, the trial court did not err in excluding the evidence from trial. II Instruction on Refusal of Admittance Factors Defendant contends the tria l court committed prejudicial error in instructing the jury it could consider the sound of footstep s from inside the residence in determining whether the deputies were acting lawfully wh en they broke the en trance door after knocking and giving notice. We reject the argument. A. Instruction On the charge of assault upon a peace offi cer with a deadly we apon (§ 245, subd. (d)(1)), the jury was instruct ed with CALCRIM No. 860. As relevant here, the instruction informed the jury that the People had the burden of proving “[w]hen the defendant acted, he knew, or reasonably shou ld have known, that the person assaulted was a peace officer who was performing his [o r her] duties.” The instruction further stated:

thousand dollars ($10,000), or by imprisonmen t pursuant to subdivision (h) of Section 1170, or in a coun ty jail not exceeding one year, or by both such fine and imprisonment.”14 “A peace officer is ‘engaged in the performan ce of his [or her] duties’ if he [or she] is attempting to effect service of a sear ch warrant signed by a ma gistrate, valid on its face, which authorizes the search of certain pr emises or places, or the search of certain
persons. “You must decide if the officer notified th e occupant of his [or her] presence by knocking or employing some other means re asonably calculated to notify the occupants of his [or her] presence and identified hims elf as a Peace officer and explained the purpose of his [or her] demand for admittance. “The law permits a peace officer to break open any outer or inner door or window of a house or any part of a house or anyt hing therein to execute the warrant, if, after notice of his [or her] author ity and purpose, he [or sh e] is refused admittance. “In determining if there was a refusal of admittance, you may consider the length of time of announcement of authority and purpose, the hearing of footsteps inside , the reasonable belief that persons are inside, the lack of response to the announcement, the safety of the peace officer, the substantial delay between the announcement and entry.” (Italics added.) Defendant challenges the italicized portio n of the instruction as unwarranted by the evidence presente d at trial. B. Substantial Evidence Supporte d the Instruction as Given The California Supreme Court has explained that “proper service of a warrant is a jury issue under the engaged-in-duty requirem ent” for the charge of assault of a peace officer. ( People v. Gonzalez (1990) 51 Cal.3d 1179, 1223 ( Gonzalez ), superseded by statute on another ground as recognized in In re Steele (2004) 32 Cal.4th 682, 691.) In Gonzalez , the Supreme Court considered the argumen t that the trial court in that case “eliminated from the jury’s engaged-in-duty analysis the issue whether the warrant was lawfully executed.” ( Ibid. ) The Gonzalez court rejected the co ntention on grounds the15 jury was properly informed on the factors to consider for the engaged-in-duty test. ( Ibid. ) Specifically, the jury in Gonzalezwas instructed that “an officer executing a warrant upon a house may break and enter ‘if, after announcing notice of his [or her] authority and purpose, he [or she] is refused admittance.” ( Ibid. ) The jury was instructed it could consider the following factors in deciding wh ether there was a refusal of admittance: “The law permits a peace office r to break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant, if, after notice of his [or her] authority a nd purpose, he [or she] is refused admittance. [¶] In determining if there was a refusal of admittance, you may consider th e length of time of announcement of authority and purpose; the hearing of footsteps inside; the reasonable belief that persons are inside.” ( Id. at p. 1223, fn. 20.) The instruction on refusal of admittance in this case was nearly identical to that approved by the Supreme Court in Gonzalez . Nonetheless, defendant contends the trial court committed instructional error because “the re was no evidence that the officers heard anything from inside the residence before Deputy Olive was struck by a stick.” Defendant’s argument rests on the assertion the evidence was insu fficient to warrant instructing the jury it could co nsider “the hearing of footst eps inside” in deciding whether the deputies acted reasonably in breaking the trailer door. We reject the assertion. The trial court properly instructed on re fusal of admittance be cause the jury had evidence in the form of Kimberly’s test imony upon which it could have concluded the officers heard footsteps from inside the trailer immediately before they broke the entrance door. During the prosecution’s case-in-chief, Kimberly testified: “Q. Okay. So you hear these offi cers yelling, saying ‘search warrant’? “A. Yes. “Q. Did they say ‘for guns’? “A. ‘For weapons.’ “Q. ‘For weapons.’ You heard that?16 “A. Yes. “Q. And you heard some body break the door ope n and create a hole? “A. Uh-huh. “Q. Okay. And what did [defendant] do when the officers were banging on the door? “A. He was just walking back and forth and not letting them in. “Q. Was he pacing? “A. Yes. “[¶] . . . [¶] “Q. Was he using a walking stick? “A. Yes. “Q. Was he using a wheelchair? “A. No.” This testimony combined with defenda nt’s admission he we ighed 335 pounds during the standoff provided substantial eviden ce sufficient to warrant a jury instruction that the sound of footsteps c ould be considered on the issu e of refusal of admittance. (See People v. Larsen (2012) 205 Cal.App.4th 810, 823.) Accordingly, the trial court did not commit instructional error. Even if the instruction that the jury could have consid ered the sound of footsteps would have been unwarranted by the evidence, we would nonethe less affirm in this case. A jury instruction that is correct in stating th e law but irrelevant due to lack of evidence to which it corresponds is an “abstract instruction.” ( People v. Cross (2008) 45 Cal.4th 58, 67.) As the Supreme Court has noted, “giving an irrelevant or inapplicable instruction is generally ‘ “only a technica l error which does not constitute ground for reversal.” ’ ( Ibid .)” ( People v. Cross, supra, 45 Cal.4th at p. 67.) Here, the evidence established defendant deliberately refused to comply with the sear ch warrant and then held the officers at bay by shooting at them numerous times. Kimberly’s testimony in17 particular showed defendant re acted angrily to the knock/no tice given by the deputies. And, the evidence that defendant shot at the peace officers over the course of more than a day is overwhelming. Conseque ntly, any error in the giving of an abstract instruction regarding the sound of footsteps was harmless under any standard of prejudice. ( People
v. Houston (2012) 54 Cal.4t h 1186, 1225.) III Evidence in Support of Assault on Officers Boyd, Bell, and Nicodemus Defendant next contends insufficient evid ence supported his conviction of assault with a deadly weapon on Office rs Boyd, Bell, and Nicodemus. 4 Specifically, he asserts there was no “evidence that shots were fired in their direction” because “the shots may have been fired in the air, or in another direction.” We disagree. A. Assessing Sufficiency of the Evidence Claims In reviewing a claim of insufficient eviden ce in support of a criminal conviction, we apply the substantial eviden ce standard of review. ( People v. Snow (2003) 30 Cal.4th 43, 66.) “The standard of review is well set tled: On appeal, we re view the whole record in the light most favorable to the judgment below to de termine whether it discloses substantial evidence -— that is, evidence that is reasonable, credible and of solid value - — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. ( Jackson v. Virginia (1979) 443 U.S. 307, 317–320, 61 L.Ed.2d 560; People v. Johnson (1980) 26 Cal.3d 557, 578.) ‘ “[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” ’ ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) ‘The standard of review is the same in cases in which the

4 When referring to Sergeant Bo yd, Sergeant Bell, and Detective Nicodemus as a group, we use the term “officers” to describe their law enforcem ent status.18 People rely mainly on circ umstantial evidence. ( People v. Bean (1988) 46 Cal.3d 919, 932.) “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.” ’ ( People v. Stanley (1995) 10 Cal.4th 764, 792–793.)” ( People v. Snow , supra , at p. 66.) B. Assault Against Officers Boyd, Bell, and Nicodemus The three convictions for assa ult upon a peace officer w ith a firearm arise out of defendant’s firing six shots when a team that included Officers Boyd, Bell, and Nicodemus went to extract Deputy Martin around 8:30 p.m. on the evening of the standoff. As defendant correctly points out, the trial court struck some testimony of Sergeant Boyd and Detective Ni codemus that they each believed they were fired upon. Nonetheless, the remaining testimony of th e officers constituted substantial evidence defendant fired upon Officers Boyd, Bell, and Nicodemus. Sergeant Boyd testified he and his team –- including Sergeant Bell and Detective Nicodemus –- arrived at Deputy Martin’s position on the s outheast side of the trailer around 8:30 p.m. When the officers had cu t through the fence to reach Deputy Martin, they heard defendant calling out, “I see you by the pole.” Sergeant Boyd saw “the pole was right next to [them].” Sergeants Bo yd and Bell immediately “moved the team back to get out of the way” by retreating back to th e fence. When they had moved 10 feet, “six shots [were] fired” from the trailer. The s hots were loud. In response, Sergeant Boyd grabbed and threw Deputy Martin to the ground before himself droppi ng onto the ground. Sergeant Boyd worried about being hit becaus e they “were still lighting [themselves] with the moonlight or ambient light.” Sergeant Boyd additionally testified that “w hen he heard the shot and . . . dove for cover on the ground” he “perceive [d] that [he was] being shot at.” As he explained, “I19 didn’t have any doubt that shots were aiming at us. Just because of all the circumstances put together, I didn’t have any doubt. That’s why I dove for cover.” This testimony was not stricken. Detective Nicodemus also heard defendant call out, “I see you by the pole.” At the time, he “was standing by a po le.” He also dropped to the ground as soon as he heard the shots “[t]rying not to get shot.” When asked if he perceived the shots coming in his direction, Detective Nicodemus answered that “[a]fter the fi rst two shots, [he] left the area.” He further testified Kimberly later to ld him defendant “shot law enforcement” and “hit an officer.” Likewise, Sergeant Bell testified he took cover in the bushes behind the pole after defendant yelled, “I see you by the pole.” Sergeant Bell “tossed” Sergeant Collins on the ground as well. These trained officers dove for the ground after hearing loud shots fired in their direction by defendant. Defendant called out their position before firing six shots at them. He did so after his earlier taunting of the officers that he was going to shoot them and they should not expect to see their families that nigh t. Sergeant Boyd had no doubt defendant was aiming at him and his fellow o fficers who had gone to retrieve Deputy Martin. Moreover, defendant’s st atements to Kimberly that he shot at the officers and hit one of them provide additional evidence of his assault on Officers Boyd, Bell, and Nicodemus. The testimony introduced on the assaults against these officers is sufficiently solid and credible to constitute sufficient evid ence to affirm defendant’s convictions. IV Prosecutorial Misconduct Defendant contends the pros ecutor engaged in misconduct by referring to stricken testimony when she argued evidence showedDetective Nicodemus believed defendant was shooting at him. The Attorney Genera l counters defendant forfeited the claim by20 failing to make a timely objection to the alle ged prosecutorial misconduct or asking the trial court to admonish the jury. We agr ee the contention has not been preserved for appellate review. “ ‘Under California law, a prosecutor commits reversible misconduct if he or she makes use of “deceptive or reprehensible meth ods” when attempting to persuade either the trial court or the jury, and it is reasonabl y probable that without such misconduct, an outcome more favorable to the defe ndant would have resulted.” ’ ” ( People v. Fuiava (2012) 53 Cal.4th 622, 679, quoting People v. Riggs (2008) 44 Cal.4th 248, 298.) Under the federal constitution, prosecutorial miscond uct results if “the challenged action ‘ “so infected the trial with unfai rness as to make the resulti ng conviction a denial of due process.” ’ ( Darden v. Wainwright (1986) 477 U.S. 168, 18 1, 91 L.Ed.2d 144.)” ( People v. Riggs , supra , at p. 298.) However, “ ‘ “[a] defe ndant may not complain on appeal of prosecutorial misconduct unless in a timely fashion -— and on the same ground -— the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]” ’ ” ( People v. Riggs , supra , 44 Cal.4th at p. 298, quoting People v. Stanley (2006) 39 Cal.4th 913, 952.) Here, defendant did not object to the alle ged prosecutorial misc onduct or ask that the jury be admonished. We reject defendant’s suggestion, in his repl y brief, that defense counsel’s mere objection to the testimony of Sergeant Boyd and Detective Nicodemus should suffice as objections to the alleged misconduct. As the Supreme Court has held, the objection in the trial court must be “on th e same ground” as that asserted on appeal. ( People v. Riggs , supra , 44 Cal.4th at p. 298.) Consequently, the issue of prosecutorial misconduct has not been preserved for appeal. In his opening brief, defendant does not argue any objection would have been futile or that he received ineffective assistan ce of counsel for lack of objection to the alleged misconduct. To the extent defendant raises these arguments for the first time in21 his reply brief, they are untimely. ( Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10.) V Failure to Instruct on Juror Unanimity Defendant contends the trial court erred in failing to give sua sponte a unanimity instruction for the charges of assault upon a peace officer w ith a firearm as to Officers Boyd, Bell, and Nicodemus. Defendant assert s that “the evidence raises the possibility that some jurors could conclude that one of the officers was shot at, other jurors could conclude that another officer was shot at, a nd there was no unanimou s agreement that any one officer was shot at.” We are not persuaded. A. Duty to Instruct on Juror Unanimity It is well settled that “ ‘a criminal co nviction requires a unanimous jury verdict (Cal. Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258, 265).’ [Citation.] What is required is that the jurors unanim ously agree [the] defendant is criminally responsible for ‘ one discrete criminal event .’ ( People v. Davis (1992) 8 Cal.App.4th 28, 41, original italics.) ‘[W]hen the accusatory pleading charge s a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be in structed . . . that it must unanimously agree bey ond a reasonable doubt that defendant committed the same specific criminal act.’ ( People v. Gordon (1985) 165 Cal.App.3d 839, 853, fn. omitted, original italics.)” ( People v. Thompson (1995) 36 Cal.App.4th 843, 850.) In cases in which “the ev idence shows only a single discrete crime but leaves room for disagreement as to exactly ho w that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ wh ereby the defendant is guilty.” ( People v. Russo (2001) 25 Cal.4th 1124, 1132.) Thus, a unanimity in struction is not required where different22 criminal acts are “so closely connected as to form a single tran saction or where the offense consists of a continuo us course of conduct.” ( People v. Sanchez(2001) 94 Cal.App.4th 622, 631.) Nor is the instru ction required where “ ‘the acts were substantially identical in na ture, so that any juror belie ving one act took place would inexorably believe all acts took place.’ ” ( People v. Wolfe (2003) 114 Cal.App.4th 177, 184.) In short, “ ‘[a] unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him [or her] of the crime charged.’ ( People v. Gonzalez (1983) 141 Cal.App.3d 786, 791, disapproved on another ground in People v. Kurtzman (1988) 46 Cal.3d 322, 330.) In other wo rds, ‘[i]f under the evidence presented such disagr eement is not reasonably possible, the instruction is unnecessary.’ (141 Cal.App.3d at p. 792; see also People v. Schultz[(1987)] 192 Cal.App.3d [535,] 539-540, and People v. Bergschneider (1989) 211 Cal.App.3d 144.)” ( People v. Muniz(1989) 213 Cal.App. 3d 1508, 1518.) B. The Shots Fired at Officers Boyd, Bell, and Nicodemus Here, the trial court instruct ed the jury on unanimity only as to the two counts of child endangerment. 5 Nonetheless, we conclude the failu re to instruct on unanimity as to the counts of assault upon a peace officer with a firearm was not error because the evidence did not allow the ju ry to split on the victims orthe acts upon which they convicted.

5 The trial court gave CAL CRIM No. 3500 as follows: “The defendant is charged with child endangerment in Counts 5 and 6 [¶] The People have presented evidence of more than one act to prove that the defenda nt committed these offenses. 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.”23 The prosecution clearly identified Officers Boyd, Bell, and Nicodemus as the three victims for which defe ndant was charged with three counts of assault upon a peace officer with a firearm. Officers Boyd, Bell, and Nicodemus each recounted hearing defendant yell, “I see you by the pole.” At the time, each of three officers testified he was standing close to the pole. The o fficers heard six loud gunshots coming from the nearby trailer, and each immediately dove to the ground in response. As we have previously noted, Sergeant Boyd testified he had no doubt defe ndant was aiming at them. The rapid succession of shots fired at the o fficers was a series of “criminal acts so closely connected as to form a single transa ction” or continuous course of conduct. ( People v. Sanchez, supra , 94 Cal.App.4th at p. 631.) Here, no unanimity instruction was required because the evidence esse ntially left the jury with an all-or-nothing decision as to whether the shots were fired at Officers Boyd, Bell, and Nicodemus. The agreement in the officers’ testimony about the shots and their proximity to the pole did not allow parsing the evidence to convict on only one or two of the assault charges relating to this portion of the standoff. Defendant urges us to find error on the basis of our prior decision in People v. McNeill (1980) 112 Cal.App.3d 330. In McNeill , this court found the trial court erred in failing to give a unanimity instruction for the charge of assault with a deadly weapon that could have been premised on any of “a rapid series of sh ots in the direction of the victim’s four friends.” ( Id. at p. 334.) Even though the de fendant was charged with only one count of assault with a d eadly weapon, the trial court di d not instruct that the jury must unanimously agree on which of the four fri ends served as the victim for purposes of conviction. ( Id. at pp. 335-336.) As we explained, “The possib ility that the jurors may have come to different conclusions as to th e identity of the assau lt victim vitiates the constitutionally required assurance of juror unan imity as to the assault conviction. While it is of course possible that th e jurors agreed unanimously as to a particular victim of the24 assault, such agreement woul d necessarily be fortuitous in the absence of a proper instruction.” ( Ibid. ) Similarly distinguishable is defendant’s cited case of People v. Gibson (1991) 229 Cal.App.3d 284. Gibson involved a challeng e to an enhancement for the defendant’s drunk driving that resulted in an in jury to more than one person. ( Id. at pp. 285-286; former Veh. Code, § 23182.) The Gibson court reversed the enhancement for failure of the trial court to instruct th at the jury unanimously agre e on which of the other three victims of the auto accid ent served as the basis for the enhancement. ( Id. at p. 287.) The instructions in that case requi red the jury only believe “ ‘someone’ was injured,” even though three different people could have pote ntially been consideredinjury victims. ( Ibid. )
In contrast to McNeill and Gibson , the jury in this case was not asked to select one or two among more potential victims. Inst ead, each of the three victims –- Officers Boyd, Bell, and Nicodemus –- was specifically identified for the jury. And, for each victim there is no way to parse the eviden ce into differing instances of assault on the officers. Thus, no unanimity instruction was necessary. ( People v. Muniz , supra , 213 Cal.App.3d at p. 1518.) VI Failure to Instructon Self-defense Defendant next claims the trial court erred by omitting from CALCRIM No. 860, the instruction defining assault upon a peace officer with a firearm language that the prosecution must prove: “The defendant did not act (in self-d efense/ [or] in defense of someone else).” The People respond that defenda nt did not argue self-defense at trial nor was there substantial evidence in support of self-defense. Th e record indicates defendant did not argue self-defense and there was insu fficient evidence warr anting instruction on25 this point. 6 However, we reject defendant’s ar gument on a more fundamental point: defendant had no valid claim of self-defense against the proper service of a search

warrant. At trial, defendant did not cl aim the search warrant was i nvalid or that the officers used excessive force so self-defense might be justified. To the contrary, defense counsel’s closing argument admitted jurors might be thinking to themselves, “I didn’t hear anything in terms of [the officers] not legitimately being there” to serve the warrant. Moreover, defense counsel acknowledged: “And again, I’ll, I’ll give kudos in terms of law enforcement has acted in terms of restra int.” Nothing in defendant’s testimony or closing argument challenged the validity of th e search warrant or alleged excessive force in serving the warrant. Under these circumst ances, defendant did not have a valid selfdefense claim that excused sh ooting at the peace officers. As the California Supreme Court has explaine d, “if a warrant is valid on its face, an officer carrying out its comm and to search or arrest is lawfully engaged in duty, and his or her attacker may be convicted and p unished on that basis, even if the facts

6 The trial court’s sua sponte duty to instructon self-defense arises only if it appears the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theo ry of the case. ( People v. Breverman (1998) 19 Cal.4t h 142, 157.) Here, the defense did not request an in struction on self-defense. Moreover, defendant’s testimony and argument to the ju ry about his lack of awareness regarding what was transpiring was inconsistent with a de fense that he was acting in self-defense in response to an imminent threat of injury to hi mself or the others in the trailer with him. ( People v. Butler , supra , 46 Cal.4th at p. 868 [requiring actual fear of imminent harm for a claim of self-defense].) Defendant testif ied he simply did not understand what was going on during the standoff an d he only waved a toy gun at the officers. Defendant testified there was “[j]ust like a loud snap or pop in [his] head” after which events “kind of went hazy.” He also asse rted he did not “know what wa s going on outside.” And, he testified it was a nonfunctioning “Airsoft gun” belonging to his children that he waved around.26 disclosed to the magistrate in support of the warrant were not legally sufficient to establish probable cause. A contrary construction of the engaged-in-duty requirement would defy reason. By overlooking the traditi onal statutory authority and duty of peace officers to execute facially regular warrants, such an interpretation would misapply the premise that an officer has no ‘ duty’ to take ‘illegal’ action. It would ignore the historic preference for warrants. And it would undermi ne the Legislature’s efforts to deter and punish violence upon peace o fficers acting in that capacity . The law has long been concerned with the treatment of a citizen who resists or obstructs the assertion of police authority. Since 1872, section 148 has made it a misdemeanor to resist, delay, or obstruct an officer engaged in discharg ing ‘any duty of his [or her] o ffice.’ Unjustified violence against an officer, as against any other citi zen, was also punishable under the general statutes defining assault, battery, attempted murder, and homicide.” ( People v. Gonzalez,

supra, 51 Cal.3d at p. 1218.) The Gonzalezcourt recognized that for warrantless arrests and searches “[m]isunderstandings may arise in the heat of the moment about the officer’s intentions, motives, good faith, and authority . A citizen confronted in such circumstances may have a colorable basis for belief that the unilate ral police attempt to restrict his [or her] freedom or invade his [or her] priv acy is arbitrary and wrongful.” ( People v. Gonzalez,

supra , 51 Cal.3d at p. 1220.) However, “[w]he n the police submit their suspicions for judicial evaluation, obtain a warrant regular on its face, and act only as it expressly authorizes and commands, no issue of fault in the serving officer’s ‘performance of . . . duties’ arises. He [or she] and his [or her] colleagues have done everything possible to perform their ‘duty,’ and to do so lawfully.” ( Id. at p. 1220-1221.) The Gonzalezcourt concluded that “a warrant removes all colorable basis for onthe-spot disputes about the officer’s authority. That a citizen might have reason to suspect a warrant’s underlying support, or that he [or she] might later prevail in a judicial attack on the warrant, has no rational relationshi p to the degree of hi s [or her] culpability27 for violent resistance at the moment the warrant is served . Forcible resistance to a warrant invokes society’s particular ‘abho r[rence]’ of violence against persons whose official roles as defenders of public sa fety place them at special risk. (See People v. Rodriguez(1986) 42 Cal.3d 730, 781.) By its nature , violence of this kind ‘. . . hinder[s] the completion of vital public sa fety tasks; . . . evince[s] a particular contempt for law and government; and . . . strike[s] at the heart of a system of ordered liberty. . . .’ ( Ibid .) Such resistance thus justifies th e special treatment our statutes accord to those who attack peace officers lawfully ‘performing [their] duties.’ ( Ibid .)” ( People v. Gonzalez , supra , 51 Cal.3d at pp. 1220-1223.) Defendant had no valid claim of self-defense because he did not challenge the validity of the search warrant or allege the o fficers acted unlawfully or with unreasonable force in executing the warrant. Consequently , the trial court did not err in failing to instruct sua sponte on the theory of self-defense. VII Imposition of Upper Term for Assault upon a Peace Officer with a Firearm

Defendant contends the tria l court erred by making dual use of facts by selecting the upper term for his convictions of assault upon peace officers with a firearm based on the same factors constituting elements of crim es for which he was convicted. Although the record does support defendant’s contention the trial court made improper dual use of several facts, we affirm nonetheless because there is a single aggravating factor upon which the trial court properly relie d in imposing the upper term. For the convictions of assault upon peace officers with a firearm the trial court found the following circumstan ces in aggravation: the threat of great bodily harm, defendant engaged in conduct that indicates a serious danger to society, he was aware peace officers were outside the trailer, he shot at the officers multiple times, he used his walking stick as a weapon, and there were mu ltiple victims. The only circumstance in28 mitigation found by the trial court pertained to defendant’s insignificant prior criminal record. As defendant points out, all of the ci rcumstances in aggravation –- except engaging in violent conduct indicating a seriou s danger to society –- were elements of the assaults and resisting arrest for which defendant was convicted. Whatever the error in rely ing on other factors, the trial court was entitled to consider defendant’s violen t conduct indicating a seriou s danger to society as a circumstance in aggravation. Circumstan ces in aggravation include: “The crime involved great violence, great bodily harm, th reat of great bodily harm, or other acts disclosing a high degree of crue lty, viciousness, or callous ness.” “The defendant was armed with or used a weapon at the time of the commission of the crime,” and “[t]he defendant has engaged in violent conduct that indicates a serious danger to society.” (Cal. Rules of Court, ru le 4.421(a)(1), (2) & (b)(1).) The trial court’s finding of conduct indica ting serious danger to society suffices to justify the selection of the upper term for de fendant’s assaults on pe ace officers with a firearm. As the California Supreme Court has held, “ ‘Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.” ’ ( People v. Coleman [(1989)] 48 Cal.3d [112,] 166.) Only a single aggravating factor is required to impose the upper term ( People v. Castellano (1983) 140 Cal.App.3d 608, 614–615) . . . .” ( People v. Osband (1996) 13 Cal.4th 622, 728.) Here, there was a single aggravating factor the trial court properly relied upon to impose the upper term. Thus, any error by the tr ial court in finding the upper term to be warranted was not prejudicial in this case. ( People v. Scott (1994) 9 Cal. 4th 331, 355 [appellate court will not reweigh circumstance s in mitigation and aggravation to secondguess trial court’s selec tion of prison term].)29 DISPOSITION The judgment is affirmed.

HOCH , J.

We concur:

BLEASE , Acting P. J.

BUTZ , J.