P. v. Ruiz
A jury convicted defendant Billy Jhonathan Ruiz of the following: two counts of kidnapping (Pen. Code, § 207, subd. (a));[1] two counts of second degree robbery (§§ 211, 212.5, subd. (c)); two counts of assault with a firearm (§ 245, subd. (a)(2)); one count of making a criminal threat (§ 422); and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)).[2] The jury found to be true allegations that: as to counts 1 through 4, defendant personally used and personally discharged a firearm (§ 12022.53, subds. (b) & (c)); and as to counts 5, 6, and 7, defendant personally used a firearm (§ 12022.5, subd. (a)).[3] The trial court sentenced defendant to 25 years and eight months in prison.
Defendant argues on appeal that the court improperly instructed the jury by failing sua sponte to provide an accident instruction (CALCRIM No. 3404) with regard to defendant’s discharge of a firearm enhancement. Defendant also argues the court erred by instructing the jury that the defense of voluntary intoxication (CALCRIM No. 3426) does not apply to a personal and intentional discharge of a firearm enhancement (§ 12022.53, subd. (c)). Because we conclude the court did not commit error, we affirm.
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