Valencia

I. Introduction

Defendant, David Valencia, appeals after he was convicted of second degree murder; discharging a firearm into an inhabited dwelling; and grand theft of an automobile. (Pen. Code, 1 §§ 187, 246, 487, subd. (d).) Additionally, the jury found defendant personally used a firearm within the meaning of section 12022.5, subdivision (a)(1). Further, the jury found defendant personally discharged a firearm which caused death. (§ 12022.53, subd. (d).) These crimes all occurred on April 30 and May 1, 1998. These convictions and enhancement findings were returned in a trial and a retrial. Defendant contends there was insufficient evidence he possessed the requisite mens rea to support a grand theft conviction; he was prejudicially misled into rejecting a proffered plea bargain after the first trial; the prosecutor’s rebuttal argument violated the due process clause of the Fourteenth Amendment; there was instructional error; and the section 12022.53, subdivision (d) enhancement must be reversed because at the time of the homicide it could not *142 enhance the crime of murder. In the published portion of this opinion, we discuss whether the section 12022.53,…