P. v. McCreery CA2/1

Filed 6/28/13 P. v. McCreery CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B240036

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. GA082782) v.

DOUGLAS KEVIN McCREERY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Teri Schwartz, Judge. Reversed. Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Douglas Kevin McCreery was convicted of assault with a firearm after he brandished a weapon in the face of a neighbor on the doorstep of the neighbor‟s apartment, and after the neighbor slammed the door fired two shots through the door into the apartment. Defendant contends the trial court committed an evidentiary error and prejudicially failed to instruct the jury that it must agree which act—brandishing the firearm or shooting through the door—constituted the assault. We conclude the court prejudicially erred by failing to give a unanimity instruction, and therefore reverse. We do not reach the evidentiary issue. BACKGROUND Jared Kurt lived in a third floor apartment directly above defendant‟s apartment. The apartments had thin floors and walls, and both defendant and another neighbor had complained several times both to Kurt directly and to the building manager about noise coming from Kurt‟s apartment. On the evening of March 17, 2011, when Kurt was in his apartment with Miguel Rosario, a friend, defendant knocked forcefully on the door and, when Kurt opened it, pointed a gun at his face with both hands, but said nothing. Kurt told him to lower the gun, then slammed and locked the door and moved away from it. Defendant then jiggled the door handle and fired two shots through the door at about chest level. After the shooting, defendant apologized from behind the closed door and asked Kurt to come back to the door and talk, which Kurt refused to do. Defendant was charged in count 1 with attempted murder in violation of Penal Code1 sections 664 and 187, subdivision (a), and it was alleged he personally and intentionally “discharged” a firearm in the commission of the offense (§ 12022.53, subd. (c)). Defendant was charged in count 2 with assault with a deadly weapon in violation of section 245, subdivision (a)(2), and it was alleged he personally “used” a firearm in the commission of the offense (§§ 12022.5, 1192.7, subd. (c), 667.5, subd. (c)).