Opinion
Appeal from a judgment of the Superior Court of Orange County, William L. Evans, Judge. Affirmed. Remanded with directions, Super. Ct. No. 05CF0294.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Laurel Nelson Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P.J.
Defendant Arturo Cardenas Carrera was charged with the attempted premeditated murder and assault with a semiautomatic firearm of Andy A. (counts 1 and 6), Hugo Rodriguez (counts 2 and 7), Jose Ojeda (counts 3 and 8), and Danny H. (counts 4 and 9), and personally discharging a firearm at an occupied motor vehicle (count 5). (Pen. Code, §§ 664, 187, subd. (a); 245, subd. (b); 246.) It was alleged Carrera personally used a firearm (§ 12022.5, subd. (a)) during the commission of counts 1 through 4 and 6 through 9, and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) during the commission of counts 1 through 4.
Carrera’s case was certified to adult court after a juvenile court fitness hearing. (Welf. & Inst. Code, § 707.) Minors involved in this case are referred to by first name only not out of any disrespect, but in an effort to protect their identities.
All further statutory references are to the Penal Code unless otherwise stated.
The jury convicted Carrera of attempted voluntary manslaughter as to Rodriguez and Ojeda (counts 2 & 3) and assault with a firearm with respect to all four victims (counts 6-9). Carrera was also found guilty of discharging a gun at an occupied vehicle (count 5). The jury found true personal firearm use enhancment allegations with respect to counts 2 and 3 and 6 through 9. It acquitted Carrera of count 4. The court granted defendant’s motion to dismiss count 1 and its related gun use enhancements.
After the jury reached its verdict on counts 2, 3, and 4, the court withdrew verdict forms for the section 12022.53, subdivision (c).
After a lengthy sentencing hearing, the court sentenced Carrera to a total prison term of nine years and four months. The court selected count 2 as the principle term and imposed the midterm of three years, plus an additional consecutive four-year term for personal use of a firearm. The court imposed a consecutive one-year term, plus a consecutive one-year-four-month term for personal use of a firearm on count 3, and stayed sentence on the remaining counts pursuant to section 654.
Carrera contends insufficient evidence supports the jury’s verdict. He also argues the court made several instructional errors and abused its sentencing discretion by failing to refer him to the California Youth Authority (CYA) for evaluation. He also asserts claims of prosecutorial misconduct and ineffective assistance of counsel.
Carrera’s claims are meritless and we affirm the judgment. This case is remanded to the superior court solely for correction of the abstract of judgment. Due to clerical error, the abstract of judgment omits the court’s sentence on count 8. The clerk of the superior court is directed to correct the abstract of judgment to include the court’s imposition of a three-year term for assault with a firearm, plus four years for personal use of a firearm on count 8, execution of sentence to be stayed pursuant to section 654 pending completion of service on all other counts.
FACTS
We present the facts in the light most favorable to the judgment in accord with established rules of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142-143.)
On January 14, 2004 at approximately 2:45 p.m., a shooting occurred near McFadden Intermediate School in Santa Ana. Investigating officers found a jacketed bullet core, or a bullet coated with copper and brass, at the intersection of Knox and Center Streets. Another group of officers responded to the 2400 block of West Hall Street where they discovered an abandoned 1991 Honda Civic (the Civic). The Civic had bullet holes in the right rear passenger door and window, the right front passenger door, and the windshield. It also had a flat tire that could have been the result of one more bullet strike.
The witnesses varied in their descriptions of the color and the make of the car. However, Carrera does not argue the witnesses saw a different car. For the sake of clarity and brevity, we refer to the abandoned car as the Civic, regardless of the witnesses’ individual descriptions.
Investigating officers did not find any bullets or bullet casings in the Civic’s passenger compartment. However, a forensic specialist hired by the defense found a bullet fragment lodged in the Civic’s front passenger door panel. An expert from the Santa Ana Police Department analyzed the jacketed bullet and the bullet fragment and determined the same gun fired both bullets. Although the expert’s analysis limited the number of possible gun manufacturers to three—Taurus, Ruger, or Smith and Wesson—and the caliber size to .38, .357, or nine-millimeter, the expert could not determine whether a revolver or semiautomatic gun fired the bullets.
On February 3, Santa Ana Police Officer Daniel Park was dispatched to a Valley High School basketball game. School security officers had detained a person they believed was involved in the January 14 shooting. Park contacted three young men: then 17-year-old Danny H., 18-year-old Jose Ojeda, and 19-year-old Hugo Rodriguez. Rodriguez, Ojeda, and Danny identified Carrera as the shooter.
Park arrested Carrera and transported him to the Santa Ana Police Department. Once there, Park read the standard Miranda (Miranda v. Arizona (1966) 384 U.S. 436) advisement of rights. Carrera responded that he understood his rights and wanted to give a statement. Park and Detective Fidencio Zepeda audio-taped the interview. The prosecution introduced the tape and a separate transcription of the tape at trial.
Initially, Carrera claimed his neighbor, Denise P., had asked him to come with her while she drove to McFadden Intermediate School to pick up her little brother, Arnie Z. Arnie had already told Carrera that he was “jumped” and then suspended from school the day before. Carrera said he got involved in a fight with a “bunch of guys, ” and got “socked” in the mouth as a result. However, he also said Denise drove them home right after the fight and before the shooting. Carrera denied gun ownership or possession.
Later in the interview, Carrera admitted that he had purchased a chrome gun for $100 a couple of weeks before the shooting. He did not know the caliber of the gun, but said it was a semiautomatic. He took it with him to pick up Arnie for no particular reason, and he did not tell Denise he had it in the car. Carrera, Denise, and Arnie, were on their way home when an argument erupted, and he got out of the car. As he was walking toward the curb, approximately nine teenagers surrounded him and a fist fight ensued. Carrera did not have the gun during the fist fight. When the fight stopped, the teenagers ran back to their car. At this time, he retrieved the gun, aimed it at the ground in front of their car, and fired two or three shots. Carrera said he just wanted to scare the teenagers and that only two shots actually hit the car, but he admitted someone could have been killed. He threw the gun in a gutter during the drive home. Zepeda searched the area Carrera claimed to have dumped his gun, but it was never recovered.
Zepeda interviewed Denise on February 5. The interview started in her home, but after she denied any involvement in the January 14 shooting Zepeda arrested her and transported her to the Santa Ana Police Department. Once there, she admitted she drove her car, a 1992 Honda Civic (the Civic), to McFadden Middle School to pick up her little brother Arnie. Carrera accompanied her on the trip. Arnie and Carrera got into a fist fight on the way home. Both of them were hit several times in the face. They were back in her car and headed home when Arnie and Carrera jumped out of the car and ran around a corner. Denise heard approximately three gun shots, but she did not see what happened. She started to drive away in earnest, but saw Carrera and Arnie running after her and stopped. She asked them what had happened, and Carrera said, “Look, they beat me up.” She claimed no prior knowledge of Carrera’s gun.
Witnesses also gave varying descriptions of this car. Again, this is not a material to the issues raised, consequently we refer to Denise’s car the Honda.
Her trial testimony essentially mirrored her statement with some notable exceptions. During her interview, she claimed to have seen a gun in Carrera’s hands before he got out of the Honda for the second time, but that he exited her car alone. At another point in the interview, she said both Arnie and Carrera got out of the car, but that neither one possessed a gun. She attributed any discrepancies between her earlier statement to Zepeda and trial testimony to her fear of being prosecuted for the crime. Although she denied any romantic relationship with Carrera, Denise wrote letters to him during his incarceration.
An eyewitness, Bryon Keiser, saw the shooting from the driveway of his Knox Street home. He first noticed an unfamiliar car—the Civic—stopped at the intersection of Knox and Center Streets surrounded by eight-to-ten teenagers. There was a flurry of activity as they attempted to enter the car, and those who were unsuccessful in the attempt ran away from it in all directions. Once the crowd cleared, Keiser saw Carrera standing alone and a few feet from the Civic’s passenger side. Keiser saw a “chrome-polished pistol” in Carrera’s hand, which the thought was a semiautomatic. Carrera aimed the gun at the Civic’s passenger compartment and fired five or six times. Keiser saw two shots hit the Civic’s passenger door before he ducked behind his own car. Keiser saw the Civic make a left turn on Center Street and drove away, but Keiser lost track of the gunman.
Kevin P., a McFadden Intermediate School student, was at school on January 14 and witnessed a series of incidents involving the occupants of two cars. First, he saw a fist fight at the intersection of Adams and Center Streets. He recognized two fellow McFadden Intermediate School students — Arnie and Gustavo M. — as fight participants. Another fellow, Andy A., was present but did not participate in the fight. Kevin testified six people got out of the Civic and fought with three people from the Honda while the Honda’s female driver remained in the car. Arnie had been in the Honda. Gustavo came from the Civic. According to Kevin, the fight started when Arnie punched Gustavo. The brawl lasted for about two minutes before someone yelled “security” and everyone dashed back to their respective cars.
The Civic drove to the end of a cul-de-sac and turned around. Kevin testified the Civic “tried to get away, ” but that the Honda pulled ahead of it and boxed it in at the intersection of Knox and Center Streets. The Honda stopped abruptly in front of the Civic; one person got out, walked to the passenger side of the Civic, drew a gun, and fired. Kevin heard screaming, then three gunshots and the sound of breaking glass. He saw the gunman aim at the Civic’s passenger compartment, the passenger-side window and its tires.
Kevin did not know the shooter’s identity. At the scene, he told investigators he was fairly certain the shooter had been Arnie’s brother. However, at trial Kevin testified the shooter only looked like Arnie’s brother. He also was sure Arnie had not fired the gun. Kevin testified Andy, who had been near the Civic, ran away before shots were fired. He claimed someone from the Honda “got stomped out, ” or kicked after he fell to the ground, during the fist fight, but he did not think this person was the shooter. Kevin recalled hearing one person from the Honda yell something about getting a “strap, ” which Kevin knew is a slang word for gun. He also heard the shooter say, “Get out of the car, you pussy” before shots were fired.
Another McFadden Middle School student, Marvin G., testified Arnie and Gustavo had been in a fight on January 12, and Arnie “got jumped, ” or beaten in an unfair fight. Just before the shooting, Marvin saw the Honda drive slowly by a group of teenagers gathered at an ice cream truck parked at the intersection of Artesia Boulevard and Center Streets. Because he recognized the car, he thought someone was looking for Gustavo. A few minutes later, he heard three gunshots and saw the Honda speeding after the Civic. In January 2004, Marvin said Arnie had been a passenger in the Honda that day, but he did not remember this fact at trial.
The victims of the attack also testified at trial. Rodriguez said he, Danny, and Ojeda drove to McFadden Intermediate School in Ojeda’s car (the Civic), to pick up Andy. He knew Andy had recently been in a fight at school and feared retaliation. They had trouble locating Andy at first, but eventually saw him crossing Adams Street with some friends. Rodriguez got out of the Civic and joined Andy while Danny and Ojeda looked for a parking spot. Rodriguez, Andy and Andy’s friends were walking in a group toward Center Street when the Honda stopped right in front of them. Rodriguez thought Andy’s friends looked scared. He heard one of them say something like, “Oh, it’s them.”
Rodriguez said three people, including Carrera, jumped out of the Honda and tried to push their way around him, apparently trying to get to Andy. Rodriguez hit Carrera and they fell to the ground. Rodriguez tried to hit Carrera again, but Carrera blocked the blow. By that time, Ojeda and Danny had joined the fight. Danny took over the fight with Carrera and put him in a headlock. Someone yelled, “security’s coming” and the combatants ran back to their respective cars. Rodriguez thought someone from the Honda said, “Let’s go get the strap, ” which he understood to mean a gun.
Rodriguez could not get in the Civic right away because Ojeda had trouble unlocking the car. Eventually, he got in and jumped to the back seat while Ojeda got into the driver’s seat. Andy and Danny were standing outside the car when Carrera exited the Honda with a chrome gun. He stepped closer to the Civic’s passenger side and pointed the gun at Rodriguez. Rodriguez ducked just before he heard multiple gunshots and breaking glass. When the noise stopped, Rodriguez poked his head up. He watched Carrera get back in the Honda, and the Honda drive away. Ojeda started the Civic and drove for a couple of minutes before a flat tire was forced him to stop on West Hall Avenue. They ran to Andy’s house and Andy’s aunt called the police.
Later that night, Rodriguez returned to the Civic with Ojeda and Andy’s aunt in a SUV. He talked to at least one police officer. At the time, he did not know the gunman’s identity, but he saw Carrera at a basketball game a couple of weeks later and positively identified him as the shooter. He also identified Carrera at trial.
Ojeda’s recollection of the events did not substantially differ from Rodriguez’s testimony on the material facts. Ojeda agreed that Andy feared some type of gang-related retaliation and that he wanted to pick him up from school for that reason. He and Rodriguez gave similar testimony about the fist fight. He remembered having difficulty opening the Civic’s locked doors because he was scared and wanted to get away from the scene. He testified Rodriguez got into the right front passenger seat. He did not notice where the Honda came from, but said it stopped just in front of his car. He saw two people get out of the Honda—Carrera and a younger male—but only Carrera walked towards the Civic and drew a gun. He did not know what happened to Danny and Andy. He thought they were in the car during the short drive to West Hall Street.
He also remembered running to Andy’s aunt’s home with Rodriguez, but did not remember Andy and Danny with them. He, Rodriguez and Andy’s aunt drove an SUV to the school to look for Andy. They found him near the Civic, talking to police officers. Ojeda gave descriptions of the three people involved in the fight: a tall, chubby kid, and two others who were tall and thin. At the scene, Ojeda told the officers that he and Rodriguez had decided to let Andy go “one-on-one” with whoever was bothering him when they got to McFadden Intermediate School. He also said Rodriguez knocked the tall, chubby kid to the ground and hit the kid’s face several times while he hit a tall, skinny kid in the head. Ojeda said the same two individuals later got out of the Honda and both of them had guns. Ojeda did not identify Carrera at trial but recalled making a positive identification of somebody at the February 3 basketball game.
Danny’s testimony was similar Rodriguez’ and Ojeda's testimony. Danny agreed he and Rodriguez fought with Carrera. He remembered having to wait for Ojeda to open the Civic’s doors. He said Carrera and a second person got out of the car but only Carrera had a gun. Danny testified both individuals walked around to the front of Ojeda’s car. Danny said he and Andy were still outside the car when this happened. Ojeda and Rodriguez were in the Civic’s driver’s and front passenger’s seats respectively. While he and Andy ran from the Civic, Danny heard three shots and turned around to see Carrera with gun drawn and standing in the same position. After he turned to look forward, there were three more shots. When he was approximately two houses away from Ojeda’s car, Danny saw something hit the pavement and create a spark slightly ahead of him.
He and Andy jumped a fence and waited on the other side for approximately 15 minutes for the police to arrive. During this time, both cars left the scene. Once the police got to the scene, he and Andy identified themselves to the police and answered questions. Danny admitted he purposely avoided giving too many details about the incident at the scene.
Andy also gave few details when first questioned the police, and he admitted to an outright lie when he initially denied any involvement in the shooting. However, his testimony about the fist fight is generally consistent with that of the other witnesses. After the fight, Andy waited at the back of the Civic for Ojeda to open the trunk. While he was waiting one person emerged from the Honda with a gun. He said Carrera stood between two and four feet away from the Civic’s passenger side and approximately 19 feet from where he stood. Once the gunman fired his weapon, Andy dropped his backpack, turned, and ran down the street. He heard screaming, three shots, a tire pop, and glass shatter, but he did not turn around to look. He and Danny jumped a fence and hid in the alley until police officers arrived at the scene.
Andy was impeached with the transcript of a taped interview with Zepeda, primarily on facts concerning the fist fight and whether various witnesses were members of street gangs. Andy downplayed the January 12 incident, claiming the fight involved Gustavo and Arnie and not him. Regardless, he did ask Ojeda for a ride home from school because he feared Arnie would retaliate. He did not identify Carrera at trial but described the man as a chunky, Hispanic guy, wearing a short-sleeved shirt and jeans. He adamantly denied Arnie was the shooter.
Carrera did not testify at trial but called seven witnesses on his behalf. One witness, a resident of West Hall Street, testified that one or more male Hispanic occupants of a green Toyota Forerunner removed unknown items from the Civic’s trunk and backseat before police officers arrived to secure it. The witness took down the license plate and subsequent investigation revealed that the Forerunner was registered to Rodriguez.
McFadden Intermediate School Assistant Principal Crystal Fitzgerald-Jimenez testified she sent Arnie home early from school on January 12 because he had been involved in a fight. The same day four, 18-to-20-year-old, male Hispanics were loitering on school property. Two days later, Fitzgerald-Jimenez called Arnie’s father and asked that he pick up his son from school. Denise and a man came to her office at 2:00 p.m. Denise was very upset and accused the school of not doing enough to protect Arnie. They left at 2:25 p.m. Fitzgerald-Jimenez recalled prior disciplinary incidents with Arnie, including a confrontation with Andy and Gustavo. She said Arnie was a kid who would “fight anyone who . . . ‘looks at him sideways.’” Further, she had seen him confront Andy and Gustavo at school, and believed Arnie associated himself with the “Outlaws” tagger crew.
A tagging crew is a group of individuals organized to spray paint graffiti.
A private investigator, Joseph Szeles, testified Keiser’s home was approximately 193 feet from the Civic’s position during the shooting. Szeles also interviewed Marvin in 2004. At that time, Marvin said the Honda and the Civic were not involved in a chase. Santa Ana Police Officer Richard Aquino contacted Arnie on January 12. He noticed a bruise, some swelling, and bleeding scuff marks on Arnie’s face. Police Officer Au interviewed Andy right after the shooting. Andy was uncooperative and denied participation in anything. During a second interview, Andy admitted participating in a fist fight with someone named Ernie a few days before the shooting, but he failed to mention the shooting that followed the January 14 fight.
The prosecution argued its case under alternate theories of liability. First, under a direct liability theory, the prosecution argued sufficient evidence proved beyond a reasonable doubt Carrera exited the Honda with a gun and fired it at the passenger compartment of the Civic with premeditation and deliberation and the intent to kill. Second, the jury could find Carrera guilty on either of two so-called derivative liability theories, as an aider and abettor to the charged crime or an assault with a firearm, or as member of an uncharged conspiracy to commit the charged crimes or an assault with a firearm.
Carrera claimed mistaken identity and asserted self-defense. In the alternative, he claimed he shot the gun while under the influence of a sudden quarrel or in heat of passion, having been provoked by something that would cause any reasonable person to act rashly and without deliberation or reflection.
The jury rendered a general verdict, which means it was not asked to make a finding on the theory of liability used to render its verdict.
DISCUSSION
Sufficiency of the evidence
Carrera challenges the sufficiency of the evidence, expending considerable energy and engaging in unwarranted hyperbole in his effort to discredit adverse evidence. However, a reviewing court’s role is quite limited when considering a challenge to the sufficiency of the evidence.
“In deciding the sufficiency of the evidence, we ask whether ‘“after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” [Citation.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.) Finally, the testimony of a single witness, if believed, is sufficient prove any fact. (Evid. Code, § 411; People v. Cudjo (1993) 6 Cal.4th 585, 608-609.)
As noted, Carrera mounts an all-out attack on the unfavorable evidence presented at trial. However, he primarily argues insufficient evidence supports the verdict if the jury relied on one of the derivative liability theories presented, i.e., he acted as an aider and abettor or coconspirator. He does not acknowledge the rules regarding general verdicts in multiple liability theory cases. In such cases, reversal is not required where the inadequacy of proof simply negates one of multiple legal theories. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.) We presume the jury based its verdict on the evidence that supports the factually sufficient theory. (Ibid.) Thus, assuming the jury found Carrera personally fired the gun—which indeed it did in finding he personally used a firearm—the evidence need not be sufficient to support a finding he also acted as an aider and abettor or coconspirator.
Evidence of Carrera’s direct participation in the shooting abounds. A single gun fired both bullets recovered from the Civic. More than one witness testified Carrera got out of the Honda in possession of a gun and fired perhaps as many as six shots at a car in varying stages of occupancy. It was physically possible for him to shoot and kill all four victims. Several witnesses identified Carrera as the only person to exit the Civic. Other witnesses saw two people get out of the Civic, but only one witness testified the second person also possessed a gun, and there is no evidence a second gun was brandished or fired. The witnesses who failed to identify Carrera as the shooter nevertheless gave a description consistent with the shooter being Carrera. What Carrera argues is a simple conflict in the evidence, and conflicting evidence is not tantamount to evidence of legal insufficiency.
The result is the same, assuming the jury relied on one or more of the derivative liability theories. Andy and Arnie were not on good terms. Whatever occurred on January 12 caused both of them to request the assistance of family members on January 14, and Carrera admitted Arnie told him about a prior fight. At a minimum, Carrera intended to provide armed protection on the ride home from school. A reasonable inference from the facts is that Carrera either conspired with Arnie to commit some retaliatory act, or he intended to aid and abet Arnie in doing so. Carrera and Arnie were on the same team during the fist fight. They fled to the same car when the fight broke up. Even assuming two people exited the Honda, they did so together. A reasonable inference is Arnie and Carrera went back to the car to regroup. This inference is supported by the testimony of two witnesses that someone from the Honda said the word “strap” and something like “let’s get one, ” which several people understood to mean a gun. It appears Carrera and Arnie were upset at the results of the fist fight and decided to stack the deck in their favor by using a gun or guns.
Notwithstanding Carrera’s characterization of the evidence, the witnesses’ testimony was neither “physically impossible” nor obviously false such that it may be summarily rejected. (People v. Cudjo, supra, 6 Cal.4th at p. 608.) The court instructed the jury on the various factors it should consider when weighing the testimony of eyewitnesses. We presume jurors understand and follow the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Whether considered individually or collectively, the discrepancies and inconsistencies presented here do not undermine our confidence in the verdict. To the contrary, the verdict is supported by substantial evidence.
Instructional error
Carrera first argues insufficient evidence warranted instructions on derivative liability theories. We disagree.
“A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.]” (People v. Ervin (2000) 22 Cal.4th 48, 90.) Here, the court gave instructions on the elements of the charged crimes, lesser included crimes, enhancement allegations, the applicable defenses, the burden of proof, and how to evaluate and weigh witness testimony, and two theories of derivative liability: Defendant acted as an aider and abettor (CALJIC Nos. 3.00, 3.01, 3.02) or as the member of an uncharged conspiracy (CALJIC Nos. 6.10.5, 6.11, 6.12, 6.16, 6.20) Having concluded sufficient evidence supports the verdict under either direct or derivative liability theories, it is axiomatic sufficient evidence of derivative liability triggered the court’s sua sponte duty to instruct on these theories.
Carrera next argues instructions on voluntary manslaughter (CALJIC No. 8.40) and personal use of a firearm (CALJIC No. 17.19) failed to adequately define the mental states required to find him guilty of attempted voluntary manslaughter, assault with a firearm, or shooting an occupied motor vehicle). He further claims the instructions permitted the jury to find guilt using a lesser burden of proof. This argument is not persuasive.
Carrera’s argument is based on a series of unreasonable assumptions. He parses individual phrases in several standard instructions, assumes juror confusion where none is apparent, and argues the result somehow lessened the burden of proof. But we assume jurors are intelligent and capable of understanding instructions. (People v. Lewis (2001) 26 Cal.4th 334, 390.) Further, “we are obliged to consider the effect and import of the court’s jury instructions as a whole. [Citations.]” (People v. Regalado (2000) 78 Cal.App.4th 1056, 1061-1062.)
Instead of confusion and error concerning the standard of proof, we presume the jury understood and applied CALJIC No. 2.90, which states Carrera was presumed innocent unless the prosecution proved his guilt beyond a reasonable doubt. The challenged instructions do not state a different standard of proof, nor can they be fairly read to provide for any lesser standard of proof. In fact, two of the challenged instructions, CALJIC Nos. 3.02 and 17.19, and several other instructions given but not challenged (CALJIC Nos. 2.91, 5.15, 8.50, 8.72, 17.10) reinforce CALJIC No. 2.90 by repeating the prosecution’s burden of proof in the text.
Defendant next challenges CALJIC No. 8.66.1, which states, “A person who primarily intends to kill one person, may also concurrently intend to kill other persons within the particular kill zone. This zone of risk is termed a ‘kill zone.’ The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer that the perpetrator intended to kill the primary victim by killing everyone in the victim’s vicinity. Whether the perpetrator actually intended to kill the victim, either as a primary target or someone within the ‘kill zone, ’ or the zone of risk is an issue for you to decide.”
Relying on People v. Bland (2002) 28 Cal.4th 313, Carrera argues the court erroneously gave CALJIC No. 8.66.1 because insufficient evidence supports the concurrent intent theory discussed in the opinion. He claims three shots at the occupants of the car, plus two-to-three additional shots at the car, are “not equivalent to the use of explosive devices or the ‘hail of bullets” as discussed in Bland. We disagree for the following reasons.
First, Carrera has again ignored rules applicable to general verdicts. The kill zone theory is a factual theory, not a legal doctrine. (People v. Bland, supra, 28 Cal.4th 313, 331, fn.6.; People v. Smith (2005) 37 Cal.4th 733, 745-746 (Smith).) When a jury is instructed on multiple theories one of which is factually inadequate, “reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (People v. Guiton, supra, 4 Cal .4th at pp. 1128-1129.) Again, when there is a general verdict in a case involving more than one factual theory, an appellate court will presume the jury acted properly and relied on a supported theory, unless the record shows otherwise. (People v. Lucas (1997) 55 Cal.App.4th 721, 733-734.)
Here, there is sufficient evidence to conclude Carrera harbored the specific intent to kill both Ojeda and Rodriguez under either theory. Carrera fired multiple shots at the car but only one bullet damaged the windshield. Assuming he fired but one shot directly at the victims, “evidence that Carrera purposefully discharged a lethal firearm at two victims in the line of fire can support the inference he acted with intent to kill both.” (Smith, supra, 37 Cal.4th at p. 743.) Because Rodriguez and Ojeda were front seat passengers and inches apart, a single shot fired at close range supports this inference. On the other hand, assuming the jury found Carrera intended to kill Rodriguez—the person he fought—a flurry of bullets at the car’s passenger compartment supports attempted murder counts as to all the car’s occupants under the zone of danger or kill zone theory. (Bland, supra, 28, Cal.4th at pp. 330-331.) Nothing in Bland suggests the prosecution must limit itself to a single legal theory.
Finally, the Attorney General discusses CALJIC No. 17.01, standard unanimity instruction, which the court refused to give as requested by the defense. Carrera mentions the court’s decision but does not challenge the ruling issue under a separate heading with appropriate citations. Consequently, we deem this argument waived. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283.) In any event, no such instruction was required. (People v. Beardslee (1991) 53 Cal.3d 68, 92.)
Prosecutorial misconduct
Carrera contends the prosecutor misstated the law of derivative liability and urged the jury to convict on facts not proven beyond a reasonable doubt. Carrera’s trial counsel failed to object to the challenged statements and therefore this issue is waived.
“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 820.) There is no reason to suspend the general rule here.
Carrera asserts the futility exception, but misapprehends its application. The futility exception applies when it is apparent the court will make a particular ruling consistent with an earlier decision. There is no futility in objecting when the prosecutor misstates the law during argument. In any case, defendant’s assertions notwithstanding, the prosecutor properly stated the law and the burden of proof.
Sentencing
Carrera argues section 654 prohibits imposition of consecutive sentences on counts 2 and 3 and the gun enhancements associated with counts 2, 3, 6, and 9. We disagree.
Pursuant to section 654, subdivision (a), “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
Generally, a defendant may be punished for only one of multiple offenses “[i]f all the offenses were incident to one objective.” (People v. Perez (1979) 23 Cal.3d 545, 551, 153; People v. Beamon (1973) 8 Cal.3d 625, 639.) However, even where multiple crimes are committed with the same intent and objective, section 654 does not apply to crimes of violence committed against multiple victims. (People v. Oates (2004) 32 Cal.4th 1048, 1063.) And, “where a defendant commits crimes of violence against multiple victims, section 654 permits imposition of ‘a firearm use enhancment under section 12202.5 . . . for each separate offense for which the enhancement is found true.’” (Id. at p. 1064.) Carrera’s argument is therefore meritless.
CYA commitment
Carrera was 16 years old when he committed the instant offenses. The Attorney General concedes he was statutorily eligible for commitment to CYA instead of state prison, under Welfare and Institutions Code section 1731.5. Neither defense counsel nor the prosecutor—or the probation officer for that matter—addressed the issue in their respective sentencing briefs or at the sentencing hearing. However, the court had a sua sponte duty to consider a CYA referral. (People v. Moran (1970) 1 Cal.3d 755, 762.) Carrera contends the trial court’s failure to make an express ruling constitutes evidence of an abuse of its sentencing discretion. We disagree.
A silent record triggers the presumption of an official duty correctly performed and the presumption the trial court properly exercised its sentencing discretion. (Evid. Code, § 664; People v. Waite (1983) 146 Cal.App.3d 585, 595 (Waite), disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 592, fn.4.) The trial court’s various statements regarding the seriousness of the instant crime support this presumption. Further, although Carrera was 16 years old on the date of the crimes, he was nearly 20 years old on the date of sentencing. The trial court is not required to state reasons for rejecting CYA for anyone over 18. (Waite, supra, 146 Cal.App.3d at p. 595.)
We reject Carrera’s attempt to rely on People v. Hutson (1963) 221 Cal.App.2d 751 (Hutson), to argue the record must contain some evidence that the court exercised its sentencing discretion with “full[] awareness of its options . . . .”. In Hutson, the probation officer initially recommended referral to CYA, a recommendation omitted in a subsequent probation report at the trial court’s insistence. On appeal, Hutson argued the court had prejudged his case. The parties did not address the applicability of Evidence Code section 664. To the extent Carrera believes Hutson undermines the official duty presumption in cases involving referrals to CYA, he is wrong. (People v. Moran (1970) 1 Cal.3d 759, 762.)
Ineffective assistance of counsel
Carrera claims he received ineffective assistance of counsel because trial counsel failed to object to “evidentiary rulings, ” improper jury instructions, and sentencing errors. “‘To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant in the sense that it “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”’ [Citations.]” (People v. Lewis, supra, 25 Cal.4th at p. 674.) Carrera fails to establish the first prong of this two-prong test.
The trial court instructed the jury on the applicable law, and properly exercised its discretion under section 654 and by imposing a state prison sentence rather than referring Carrera to CYA. Appellate counsel did not specifically challenge any evidentiary rulings. To the extent Carrera’s argument applies to his claim of prosecutorial misconduct, the issue was considered and found meritless. Consequently, there is no basis for finding ineffective assistance of counsel based on the appellate record. (See People v. Alvarado (2001) 87 Cal.App.4th 178, 194 [review limited to appellate record].)
DISPOSITION
The judgment is affirmed. The matter is remanded to correct a clerical error in the abstract of judgment. The clerk of the superior court is directed to include the court’s imposition of a three-year term for assault with a firearm, plus four years for personal use of a firearm on count 8, execution of sentence to be stayed pursuant to section 654 pending completion of service on all other counts.
WE CONCUR: BEDSWORTH, J., ARONSON, J.