Opinion
A153850
04-15-2020
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ESECYOUR CASEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 613467A)
After a jury trial, defendant Daniel Casey was convicted of voluntary manslaughter, attempted murder, shooting from a motor vehicle, and two counts of possession of a firearm by a felon, along with related enhancements. The trial court sentenced him to 58 years, four months to life in prison.
On appeal, Casey contends (1) the court prejudicially erred by instructing the jury with CALCRIM No. 3471, which limits a defendant's ability to claim self-defense when he is the "initial aggressor" and in cases of "mutual combat," and by failing to include in the instruction a definition of the phrase "mutual combat," and (2) he could only be convicted of one count of firearm possession by a felon, because that crime is a continuing offense and there was no evidence that his possession of the gun at issue was not continuous. The Attorney General concedes the latter argument is correct, and we agree. We reject Casey's instructional error claim. We shall reverse one of the firearm possession convictions and modify the sentence accordingly. In all other respects, we affirm.
I. BACKGROUND
A. The Charges Against Casey
An information charged Casey with the murder of Albert Easley (Pen. Code, § 187, subd. (a)) (count one), the attempted murder of Michael Monah (§§ 187, subd. (a), 664) (count two), shooting from a motor vehicle at Monah (§ 26100, subd. (c)) (count three), and two counts of being a felon in possession of a firearm (§ 29800, subd. (a)(1)) (counts four and five). As to counts one, two and three, the information alleged firearm and bodily injury enhancements (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d), 12022.7, subd. (a)).
Undesignated statutory references are to the Penal Code.
Rosalyn Green was charged as a codefendant in counts one and two (murder and attempted murder). Pursuant to a plea agreement, Green entered a no contest plea to the murder charge with the understanding that, if she testified truthfully, the charge would be reduced to voluntary manslaughter and she would receive a five-year sentence.
B. The Evidence Presented at Trial
1. The Prosecution's Case
At the time of the February 11, 2016 shooting that is at issue in this case, Michael Monah had known Casey for just over one year. Monah, Casey, and Ricco Williams had committed thefts together, but they had had a falling out. On May 2, 2015, Monah was shot in the back by someone whose name he did not know. Casey and Williams were both present when that shooting occurred, but neither of them was the shooter. At some point after the May 2015 shooting, Monah received threats saying that it was "not over" and that they would "finish the job." Casey did not threaten Monah.
Monah had charges pending for illegal possession of a firearm. He was given immunity at the preliminary hearing but was not given immunity for his testimony at trial.
Monah also knew Rosalyn Green. Green and Ricco Williams were cousins. At some point before February 11, 2016, Monah had an argument with Green. On that occasion, Green called Casey to come pick her up, which he did.
At about 11:00 a.m. on February 11, 2016, Monah encountered Green in a liquor store in the area of 24th and Linden Streets in Oakland. Monah was concerned that Green, who was aware of the May 2015 shooting, "would call them to come finish the job." Monah told Green to leave and pushed her about three times. Monah had a .45 caliber firearm in the waistband of his pants. He had begun carrying the gun in late 2015, after receiving threats in the aftermath of the May 2015 shooting.
Green left the store and walked down 24th Street. Monah also left and started walking with Albert Easley in the same direction as Green. Monah and Easley stopped at the corner of 24th and Linden Streets, where they stood with Howard Cobb, smoking marijuana. At some point, Cobb may have walked away from the corner, but he remained in the area.
While standing on the corner, Monah saw a black Honda Civic drive past. He recognized the car as belonging to Casey, and he saw that Casey was driving. Monah was concerned and grabbed his waistband in case he had to fire his gun. Casey's car then came back the other direction and stopped in front of Monah. Monah pulled out his gun and pointed it at the ground. Monah testified that he saw a passenger in the front seat of Casey's car. The passenger put his seat back. Monah stated that, in his experience, a passenger would do this so the driver would have a clear shot out the window.
Monah then lifted his gun and pulled the trigger, but the gun did not fire. Casey lifted what Monah thought looked like a submachine gun and shot at Monah. Monah was hit in his shoulder by a bullet and ran behind a nearby school bus. Easley ran too but said he was hit and fell to the ground. Easley died from his gunshot wound.
Monah heard at least five shots. During the exchange, Monah fired a shot from behind the school bus. When he did that, Casey's car was no longer in the spot where it had pulled up at the curb; it was facing almost the opposite direction. Monah heard three or four shots when the car was facing that way.
Monah fled by going over a fence into someone's backyard. His arm was broken as a result of the shooting.
Otis Quinney, who was about a block and a half away from the location of the shooting, testified that he saw someone shooting from a car that was in the middle of the street. He first heard two shots and then heard about five or six shots. After the second volley of shots, the car drove toward Quinney and got within half a block of him. Quinney could not tell if anyone other than the driver was in the car.
Howard Cobb witnessed the argument at the store between Green and Monah, and he saw Monah push Green. Cobb then left the store. He was standing with or near Monah and Easley when a black car came up and turned the corner. He heard shots and dove to the ground. He did not see the driver and could not tell if someone else was in the car.
Rosalyn Green testified that she had dated Casey on and off. She described the confrontation at the store with Monah. They had an argument in which Monah told Green that she could not be in the store; she responded that she could go where she liked; and Monah pushed her toward the door. Green left the store, went to a friend's house nearby, and called Casey to ask him to pick her up. Green testified she went to the friend's house to smoke marijuana; at another point, she testified she went there because it was a safe place and she was afraid of Monah.
When Casey arrived at Green's friend's house, Green had come outside to wait for him. Casey asked Green where Monah was, and she pointed toward the store. Casey stayed in the car and took off without Green. Green, who was a few feet away from the car, could not tell if there was a passenger in the car. The passenger seat was reclined. After Casey drove off, Green heard gunshots, but she did not see anyone shoot.
On the following evening, Green spoke to Casey and asked him why he had shot Monah. Casey said that Monah should not have touched what was his. Casey also asked Green what she thought was going to happen when she called him. She replied, " 'This wasn't supposed to happen.' "
Green testified that, when she previously had an argument with Monah (months before February 11, 2016), he threatened to shoot her. On that occasion, she called Casey to come and pick her up, and he did so.
2. The Defense Case
Casey testified that, on February 11, 2016, Green called him. She was upset and said Monah had beaten her up. Green asked Casey to come pick her up. Casey was upset because this was the second time Green had a conflict with Monah. Casey brought a gun with him because he thought something might happen.
When Green called, Casey did not know that Monah was still in the area. He wanted to talk to Monah about keeping his hands off Green and leaving her alone. He did not have a passenger in the car with him, but the passenger seat was reclined.
Casey stated that, when he arrived at Green's location near the corner of 26th and Linden Streets, Green said Monah might be up the street. Casey told Green to stay there and he would talk with Monah. Casey then drove to the corner of 24th and Linden Streets where Monah was standing. Casey drove past Monah, then turned around, came back and stopped in front of Monah. Before Casey could say anything, Monah drew a gun and pointed it at Casey's head.
Casey's gun was on the floor of the driver's seat. Casey thought he was about to be shot and had a split second to react. He picked up the gun, closed his eyes, and fired two or three shots.
Casey was stunned and stayed there for a few seconds. He did not know whether his shots had hit anyone. Then Monah, who had run across the street, shot at him. Casey fired back. Casey put the car in reverse and started going the other way, in an effort to get away from Monah. After he started to drive away, Casey turned the car around and returned. He testified that he did so because he saw Monah running to the opposite side of the street where Casey thought Green was standing. Casey was concerned for Green's safety. Casey believed he fired about six shots in all. He testified that he fired some of the shots after he turned the car around.
Casey testified that Green later asked him why he had done this. Casey did not recall saying that it was because Monah had put his hands on what was his. Casey denied that he asked Green what she thought would happen when she called him.
C. The Verdict and Sentence
As to count one (the murder charge based on the fatal shooting of Easley), the jury found Casey not guilty of murder, but found him guilty of the lesser included offense of voluntary manslaughter. The jury found Casey guilty of the attempted murder of Monah (count two), shooting from a motor vehicle at Monah (count three) and both counts of firearm possession by a felon (counts four and five). As to the enhancements, the jury found Casey (1) personally used a firearm in connection with counts one through three, (2) personally and intentionally discharged a firearm in connection with counts two and three, and (3) personally and intentionally discharged a firearm causing great bodily injury or death, and personally inflicted great bodily injury, in connection with count three.
The court sentenced Casey to an aggregate term of 58 years, four months to life in prison, composed of a determinate term of 28 years, four months, and an indeterminate term of 30 years to life. The court calculated the determinate term by imposing the seven-year midterm for count two (attempted murder), plus a consecutive 20-year term for the enhancement for personal and intentional discharge of a firearm associated with that count, plus consecutive eight-month sentences (one-third the midterm) for each of the two convictions for possession of a firearm by a felon (counts four and five). The indeterminate term included the five-year midterm for count three (shooting from a vehicle), plus a consecutive term of 25 years to life for the enhancement linked to that count for personal and intentional discharge of a firearm causing great bodily injury. The court stayed the sentence for count one (voluntary manslaughter) pursuant to section 654.
Casey appealed.
II. DISCUSSION
A. CALCRIM No. 3471
1. Additional Background
On November 29, 2017, after the close of the evidence, the trial court stated during a conference on jury instructions that it would give CALCRIM No. 3471, an instruction requested by the prosecution that limits a defendant's right to self-defense when he is the initial aggressor or when the case involves mutual combat. After an off-the-record portion of the discussion, the court stated it would give the instruction, including certain bracketed language. The court stated: "I'm going to give 3471. I've just conferred with counsel as to whether the mutual combat bracket section should also be included, and counsel agreed they should and therefore I will."
The following day (November 30, 2017), after closing arguments, the court instructed the jury on self-defense and defense of another (CALCRIM Nos. 505, 3470), imperfect self-defense and defense of another (CALCRIM Nos. 571, 604), and the limitations on the right to self-defense when the defendant is the initial aggressor or engages in mutual combat (CALCRIM No. 3471), as well as other self-defense-related instructions (CALCRIM Nos. 3472, 3474).
The court instructed that Casey was not guilty of murder, attempted murder, or shooting from a vehicle (counts one, two, and three) if he acted in perfect self-defense or defense of another, i.e., he actually and reasonably believed in the need to use force to defend himself or another from imminent danger. (See CALCRIM Nos. 505, 3470.) The court also instructed that imperfect self-defense or defense of another (i.e., the defendant actually but unreasonably believed in the need to defend using deadly force) reduces murder or attempted murder (counts one and two) to voluntary manslaughter or attempted voluntary manslaughter. (See CALCRIM Nos. 571, 604.) The court and the parties agreed, however, that imperfect self-defense does not apply to the crime of shooting from a vehicle (count three). (See People v. Rodarte (2014) 223 Cal.App.4th 1158, 1168-1169, 1171 [doctrine of imperfect self-defense "is limited to the negation of the malice element of murder"; it does not apply to the different mental state element for shooting from a motor vehicle].)
The instruction addressing the situation in which the defendant is the initial aggressor or engages in mutual combat (CALCRIM No. 3471) stated in part: "A person who engages in mutual combat or who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting; [¶] AND [¶] 3. He gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight." (See § 197, subd. (3) [self-defense is not available if the defendant "was the assailant or engaged in mutual combat," unless he or she "really and in good faith . . . endeavored to decline any further struggle before the homicide was committed"].)
The court's instruction included certain bracketed language from CALCRIM No. 3471. First, as noted, that instruction imposes prerequisites to a defendant's right to self-defense in two scenarios—when the defendant "engages in mutual combat" or when the defendant "starts a fight." (CALCRIM No. 3471.) The first sentence of the pattern instruction includes language in parentheses and brackets allowing the court to instruct on either or both of these scenarios. (Ibid.) Also, the third listed prerequisite to the right to self-defense (i.e., the defendant gave his opponent a chance to stop fighting) is in brackets in the pattern instruction, and a comment states this element is to be given "in cases of mutual combat." (Ibid.) Here, the trial court used introductory language allowing the jury to consider both situations covered by the instruction (mutual combat and the defendant's starting a fight), and the court included the bracketed third element that applies when mutual combat is at issue.
Second, the court included a bracketed paragraph explaining that, if the defendant's opponent suddenly escalates to deadly force, the defendant has the right to defend himself with deadly force without first satisfying the listed requirements. That paragraph states: "However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting, communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting."
The court did not include a different bracketed paragraph from CALCRIM No. 3471 that defines mutual combat: "[A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.]" This definition reflects the holding of People v. Ross (2007) 155 Cal.App.4th 1033, 1046-1047 (Ross), which concluded that " 'mutual combat' consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight. . . . [T]here must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose."
Casey did not object to the court's decision to give CALCRIM No. 3471, and the record does not show that he asked the court to include the bracketed definition of mutual combat.
As noted, the court stated the parties had agreed off the record that the court should include "the mutual combat bracket section" of CALCRIM No. 3471, but it is not clear which bracketed section or sections were the subject of this off-the-record discussion. The instruction as given did not include the bracketed definition of mutual combat, but it did include a different bracketed section of the instruction that is specific to the mutual combat scenario ("element 3"—the defendant gave the opponent the opportunity to stop fighting). It also is possible the court was referring to the introductory language of the instruction (which is partially in parentheses and brackets) presenting the "mutual combat" theory along with the "starts a fight" theory. (CALCRIM No. 3471.)
2. Contentions on Appeal
Casey contends (1) the trial court erred by giving CALCRIM No. 3471 because there was no substantial evidence to support a finding that he started the fight or that he and Monah engaged in mutual combat as defined in Ross, (2) having decided to give the instruction, it was error for the trial court not to include the bracketed portion defining "mutual combat," resulting in likely jury confusion as to whether the gunfight between Casey and Monah was mutual combat, and (3) if this court finds Casey forfeited his claims of error by failing to object or request inclusion of the definition of mutual combat, then his trial counsel was prejudicially ineffective.
In his brief, the Attorney General does not address the sufficiency of the evidence to support the instruction. The Attorney General argues, however, that because Casey did not object or request clarification, his claim is forfeited unless the alleged error affected his substantial rights (see § 1259), which it did not because Casey has not shown a reasonable probability he would have obtained a better result in the absence of the error. (See People v. Watson (1956) 46 Cal.2d 818, 836; People v. Anderson (2007) 152 Cal.App.4th 919, 927 [in determining whether instructional error affected defendant's "substantial rights" under § 1259, "[t]he question is whether the error resulted in a miscarriage of justice under [Watson]"].) The Attorney General similarly contends trial counsel was not prejudicially ineffective. (See People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407, fn. 4 [Watson standard is substantially the same as the prejudice prong of Strickland v. Washington (1984) 466 U.S. 668].) We conclude Casey has not shown prejudicial error.
3. Sufficiency of the Evidence to Instruct with CALCRIM No. 3471
Casey contends the trial court erred in giving CALCRIM No. 3471 because there was no evidence to support a finding that he started the fight or that he and Monah engaged in mutual combat, that is, combat that began or continued by mutual consent or agreement before the claimed occasion for self-defense arose.
"It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) But here, there was a sufficient evidentiary basis to instruct the jury with CALCRIM No. 3471. The evidence supported a conclusion that Casey "start[ed] a fight" with Monah, thus triggering limitations on the right to self-defense as stated in the instruction. (See CALCRIM No. 3471.)
Casey sought Monah out. Casey drove to the West Oakland neighborhood where Monah and Green had confronted each other, a 25-minute drive from Casey's location in East Oakland. And although he ostensibly made the drive to pick up Green, he did not do so when he found her. Instead, after asking Green where Monah was, he drove away to find Monah, leaving Green behind.
Casey brought a gun with him to the scene. He testified he did not regularly carry a gun, but on this occasion, before setting out, he decided to bring one. He put it on the floor of the driver's seat of his car, where he could (and later did) easily reach it. When he arrived at Monah's location, Casey stopped to confront him. Casey testified he rolled down his car windows when he stopped to speak with Green, and they were still down when he stopped near Monah. The passenger seat of his car was reclined.
Other evidence, including the history of fraught relations between Casey and Monah, further supports a conclusion that Casey's actions and intentions on the day of the shooting were hostile. The two men had a falling out stemming from their prior theft crimes together. In May 2015, someone shot Monah when Casey was present. Following that shooting, Monah received threats that they would "finish the job," although not from Casey personally. Monah had two unfriendly encounters with Green, Casey's on-and-off girlfriend, on one occasion threatening to shoot her and in the second instance pushing her several times. Finally, Green testified that, when she later spoke to Casey about the shooting, Casey asked Green what she thought was going to happen when she called him. This evidence, in conjunction with the evidence of Casey's actions on the day of the shooting, provides sufficient support for a conclusion that Casey "start[ed] a fight."
Casey insists the evidence compels a conclusion that Monah started the fight, because he attempted to get a shot off before Casey opened fire, wounding Monah and killing Easley, a bystander who had nothing to do with the feud between the armed combatants. We disagree. For the reasons outlined above, the evidence of Casey's aggressive conduct prior to Monah's failed attempt to fire his gun provides ample support for a conclusion that Casey started the fight, and thus for the court's decision to give CALCRIM No. 3471.
There also was substantial evidence that the shootout between Casey and Monah was "mutual combat," which similarly triggered CALCRIM No. 3471's limitations on the right to self-defense. The evidence supported a conclusion the two men had a preexisting implied agreement to fight. (See Ross, supra, 155 Cal.App.4th at pp. 1046-1047 [prior agreement to fight may be "express or implied"]; CALCRIM No. 3471.) There was a history of antagonism between Monah on the one hand and Casey and his friends or associates on the other, starting with the falling out over a joint theft crime and continuing with the May 2015 shooting of Monah, the threats he later received, and his two hostile encounters with Green. Monah began carrying a gun, and Casey brought a gun when he went looking for Monah on February 11, 2016.
The way the incident played out on February 11, 2016, further supports the conclusion there was a preexisting mutual intention to fight and to keep fighting. Both men had guns, and both expected they might have to use them. Moreover, this was not a chance encounter from which the participants immediately fled. Instead, after the initial encounter (Monah's attempted, and Casey's successful, firing of their guns), Casey repositioned his car and continued to shoot. For his part, Monah fled a short distance but then (at least arguably) continued to engage, firing a shot at Casey from behind the school bus. In light of the history of conflict and ongoing tensions between Casey and Monah, coupled with their behavior during the incident, there was substantial evidence supporting a conclusion their firefight was mutual combat. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1044 (Nguyen) [in light of evidence that a "state of war" existed between rival gangs, jury reasonably could have concluded gangs "had a preexisting intention to engage in hostilities whenever the opportunity presented itself"].)
Casey notes that he and Monah did not testify that they planned in advance to fight, and he contends there is no evidence suggesting they did. We disagree. As outlined above, in light of the evidence of their conduct before and during the incident, there was substantial evidence of an implied agreement to fight and thus a proper basis for instructing on mutual combat.
4. No Sua Sponte Duty to Define Mutual Combat
Casey argues that, since the court decided to instruct on mutual combat with CALCRIM No. 3471, it had a sua sponte duty to explain to the jury the meaning of that term. Relying on Ross, Casey contends that, without the definition, the jury could have concluded "mutual combat" refers to any incident involving reciprocal violence, whether or not there was any prior mutual consent or agreement to fight. (See Ross, supra, 155 Cal.App.4th at p. 1044 ["In ordinary speech . . . 'mutual combat' might properly describe any violent struggle between two or more people, however it came into being"].)
Our Supreme Court rejected this argument in Nguyen. (Nguyen, supra, 61 Cal.4th at pp. 1050-1051.) In that case, the defendant, also relying on Ross, argued the trial court had a sua sponte duty to define mutual combat. (Nguyen, supra, at p. 1049.) The Supreme Court disagreed, noting that in Ross the jury asked during deliberations for a legal definition of "mutual combat," and the trial court declined to provide one, instead telling the jurors to rely on the ordinary meaning of the words. (Nguyen, supra, at p. 1049; see Ross, supra, 155 Cal.App.4th at p. 1036.) As the Supreme Court explained in Nguyen, this fact was the basis for the Ross court's finding of error. "Ross did not hold that a trial court has a sua sponte duty to instruct the jury on the meaning of mutual combat, but rather that the trial court in that case erred by refusing the jury's request to clarify the term." (Nguyen, supra, at p. 1050; see Ross, supra, at p. 1047.)
The Nguyen court continued: " 'When, as here, a phrase "is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request." ' [Citation.] As noted, although Ross discussed potential ambiguity in the term 'mutual combat,' it did not hold that a trial court has a sua sponte duty to explain it to the jury. If defendant believed the instruction was incomplete or misleading, he 'had the obligation to request clarifying language.' [Citation.] Moreover, the jury did not request that the trial court clarify the meaning of the term. The trial court did not have a sua sponte obligation to define 'mutual combat.' " (Nguyen, supra, 61 Cal.4th at pp. 1050-1051.) Similarly, here, the jury did not request clarification of the term "mutual combat," and the trial court had no sua sponte duty to define it. If Casey believed the instruction was incomplete or misleading, he had the obligation to request that it be clarified.
Casey argues the result should be different here, because CALCRIM No. 3471 now includes a bracketed paragraph that defines mutual combat (added in response to the 2007 decision in Ross), a tool that was not available when the underlying trial in Nguyen occurred in 1998. (See Nguyen, supra, 61 Cal.4th at pp. 1026, 1050 [noting this addition was made to the standard instruction after the Ross decision].) But the fact the definition of mutual combat can be easily included when appropriate does not mean that term has, since the time of the Nguyen decision, changed to the type of technical term that must be defined sua sponte. (See Nguyen, supra, at pp. 1050-1051.) We decline to depart from our Supreme Court's guidance on this issue.
Casey also argues we should find a sua sponte duty here because of factual differences between this case and Nguyen. He contends there was less potential for confusion as to the applicability of the mutual combat instruction in Nguyen because the " 'state of war' " between the gangs in that case "obviously met the legal definition of mutual combat," while the firefight between Casey and Monah "clearly failed to satisfy the legal definition of that term." As discussed above, we disagree with that interpretation of the record in this case. In our view, the evidence provides ample support for a conclusion that Casey and Monah engaged in mutual combat, and we again see no basis to depart from Nguyen's holding that the term need not be defined sua sponte.
5. Ineffective Assistance of Counsel
Casey argues that, if this court finds he forfeited his claims of instructional error, then his trial counsel was ineffective for (1) failing to object to the giving of CALCRIM No. 3471, (2) failing to request that the court remove the term mutual combat from the instruction "so that it referred only to 'a person who starts a fight,' " and (3) failing to request that the court provide the jury with the definition of mutual combat. We have concluded above that there was substantial evidence supporting the giving of CALCRIM No. 3471, including both the "starts a fight" and "mutual combat" theories included in that instruction. We rejected Casey's contrary argument on the merits, not on forfeiture grounds. And since the instruction was proper, counsel could not have been ineffective for failing to object to it.
In contrast, our resolution of Casey's appellate argument about including the definition of mutual combat was based in part on the inaction of Casey's trial counsel. We concluded that the trial court had no sua sponte duty to include the definition, and that if Casey believed the instruction was incomplete or misleading, he should have requested clarification. We therefore address his argument that his trial counsel was ineffective for failing to request inclusion of the definition of mutual combat.
To establish a claim of ineffective assistance of counsel, a defendant must demonstrate both that (1) counsel's representation fell below an objective standard of reasonableness and (2) the defendant suffered prejudice as a result, in that it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 694; People v. Carter (2003) 30 Cal.4th 1166, 1211.) Here, even assuming counsel's performance was deficient because he failed to request inclusion of the definition of mutual combat, we find no prejudice in light of the evidence presented at trial, which we have outlined above. There is no reasonable probability that, if the definition had been included, the jury would not have found either (1) Casey started the fight, or (2) there was an implied preexisting agreement to fight. Either of these findings would trigger the limitations on self-defense outlined in CALCRIM No. 3471.
B. The Convictions for Firearm Possession
Casey was convicted of two counts of firearm possession by a felon, based on (1) his possession of a gun on the date of the shooting, February 11, 2016 (count four of the information), and (2) his possession of the same gun on the date of his arrest, February 17, 2016 (count five). Casey contends he could only be convicted of one count of firearm possession by a felon, because that crime is a continuing offense and there was no evidence that his possession of the gun was not continuous. The Attorney General concedes the point, and we agree.
In People v. Mason (2014) 232 Cal.App.4th 355, on which Casey relies, the defendant was convicted of four counts of possession of a firearm by a felon under former section 12021, subdivision (a)(1). (Mason, supra, at p. 364.) Each possession count corresponded to the date of a different shooting or the date a police chase led to the recovery of the firearm used in the shootings. (Ibid.) The prosecution's theory was that Mason possessed the firearm on each of these occasions. (Ibid.) The appellate court reversed all but one of Mason's possession convictions. (Id. at p. 367.)
The appellate court in Mason noted that "[t]he Supreme Court has recognized that possession of a firearm by a felon is a continuing offense." (Mason, supra, 232 Cal.App.4th at p. 365.) " ' "Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he [or she] fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty." [Citations.] Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled. "The crime achieves no finality until such time." ' " (Ibid.) For continuing offenses, then, " 'only one violation occurs even though the proscribed conduct may extend over [an] indefinite period.' " (Ibid.)
Applying this concept to the case before it, the Mason court reasoned that, "[a]lthough the evidence showed that Mason possessed the firearm on each of the dates, there was no evidence that Mason's possession of the firearm was anything but continuous over the period encompassing the four dates. The prosecution did not present evidence, for example, showing that Mason had relinquished possession of the gun for a period between the specified dates. Mason's crime was complete at the time he first possessed the gun because he violated the duty imposed by the statute not to do so. [Citation.] But the crime continued—as a single offense—for as long as the same possession continued, i.e., so long as Mason continued to violate his duty under the statute." (Mason, supra, 232 Cal.App.4th at p. 366.)
We see no basis to depart from the reasoning in Mason, and the Attorney General agrees that case controls here. The parties also agree there was no evidence that Casey's possession of the gun at issue was not continuous. We therefore will reverse Casey's second conviction for possession of a firearm by a felon (count five) and order that his sentence be modified accordingly.
III. DISPOSITION
The conviction on count five for possession of a firearm by a felon is reversed. The trial court is directed to prepare an amended abstract of judgment for the determinate portion of Casey's sentence that deletes the conviction for count five and the eight-month consecutive sentence imposed for that count. In all other respects, the judgment is affirmed.
STREETER, Acting P. J. WE CONCUR: TUCHER, J.
BROWN, J.