Cruz

Convicted by jury of assault with a firearm (Pen. Code, § 245, subd. (a)(2); count I; statutory references, unless otherwise noted, are to the Penal Code) and discharging a firearm at an occupied building (§ 246; count II) appellant contends: (1) the intent required by section 246 is “the intent to strike the building”; (2) imposition of the upper term on count II was an abuse of discretion; (3) by imposing concurrent terms the trial court violated section 654; (4) the trial court erred in refusing to give CALJIC No. 2.01 (Sufficiency of Circumstantial Evidence—Generally); and (5) giving a flight instruction (CALJIC No. 2.52) was error. We find appellant’s contentions meritless and affirm the judgment.

Factual Background

There being no insufficiency of evidence claim, the facts may be stated simply. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [ 228 Cal.Rptr. 228 , 721 P.2d 110 ].)

About 5:45 p.m. on February 6, 1994, Sergeant Andrews, the supervising security officer at the Del Amo swap meet, was contacted by a vendor about possible trouble between two gangs. Sergeant Andrews, armed and in uniform, went toward the center of the…