Opinion
NOT TO BE PUBLISHED
Super. Ct. No. LF007891C
SCOTLAND, P.J.
The facts of this case are all too common. A gang member “disrespects” a rival gang member, threats are made, a weapon is retrieved, and someone is needlessly killed over mere words. As a consequence of misguided bravado, defendant Orlando Delatorre -- who was 14 years old when the killing occurred but was tried as an adult -- will likely spend the rest of his life in prison for aiding and abetting the murder of Adrian Cortez.
A jury found defendant guilty of first degree murder, three counts of attempted murder with premeditation and deliberation, participation in a criminal street gang, possession of a loaded weapon by an active gang member, and possession of a sawed-off shotgun. The jury also found that a principal intentionally discharged a firearm in the commission of the murder, and that the attempted murders were committed on behalf of a criminal street gang.
The trial court sentenced defendant to a determinate term of two years in state prison, and an indeterminate term of 95 years to life plus three consecutive life sentences.
On appeal, defendant raises various challenges to the trial court’s jurisdiction, the voluntariness of defendant’s confession, the sufficiency of the evidence, the instructions given, and the sentence imposed.
We shall modify the judgment by imposing the middle term of two years on the count 5 conviction (participation in a criminal street gang) and the count 7 conviction (unlawful possession of a loaded firearm) and by striking the enhancements of 15 years to life on the attempted murder counts (counts 2-4) and replacing them with a 15-year minimum parole eligibility date pursuant to Penal Code section 186.22, subdivision (b)(5), and shall affirm the judgment as so modified.
FACTS
Some of the victims and codefendants have the same last name. To avoid confusion, we will initially refer to them by their first and last names and thereafter use their first names only.
In October 2004, defendant lived across the street from Vanessa Ramirez. Vanessa and defendant were both Sureno gang members. Vanessa’s cousin, Adrian Cortez, was a member of the rival Norteno gang.
On the night of October 2, 2004, Adrian spoke with Vanessa on the sidewalk by her residence. Adrian was accompanied by Albert Blanco, Isael Teran, and Gustavo Teran. Adrian and Gustavo were Nortenos, and Albert and Isael associated with the gang.
According to Vanessa, Adrian’s companions said disrespectful things to her. Defendant heard the exchange, came out of his apartment onto the balcony, and exchanged insults with his gang rivals. They used words like “scrap,” which is disrespectful of Surenos. Defendant called them “buster,” which is disrespectful of Nortenos. Defendant challenged them to fight and threatened to kill Isael. Adrian, Gustavo, Albert, and Isael began to leave but continued arguing with defendant as they walked to Adrian’s apartment nearby.
Defendant went back inside his apartment, telephoned David Villanueva, and asked him to come over with his gun. Defendant came back outside carrying a machete, walked down to his driveway, and told her his “homies” were coming with a gun and it would not be his fault if her cousin got “blasted.”
Adrian returned with his friends, and the argument continued. David and Larry Villanueva arrived in a car with at least one other male, and they joined the fray. According to Vanessa, it looked as though there might be a fight. David had a rifle, and Larry had two bottles in his hands. Adrian’s group picked up some rocks. Defendant told David to shoot or “kill ‘em,” and David fired some shots, two of which hit 16-year-old Adrian in the chest and killed him. David fired more shots as he moved toward Albert, Isael, and Gustavo, who were fleeing. Defendant and the Villanuevas then drove away in their car.
Two days later, on October 4, 2004, two undercover detectives investigating the murder saw a car matching the description of the one involved in the shooting. Larry, defendant, and two other males were in the car. The detectives followed the car to Larry’s residence, where Larry went inside and returned with something in a blanket and placed it in the trunk. When the four men drove off, uniformed officers stopped the car. A loaded .357 caliber handgun and sawed-off shotgun were wrapped in a blanket in the trunk. Defendant was arrested and transported to the Lodi police station.
Detectives Brucia and Kermgard interviewed defendant after his arrest. Defendant told them he knew the concealed weapons were in the car when he was arrested. He admitted that he was a Sureno and that David and Larry were his gang friends. On the night of the shooting, defendant knew that David was going to shoot Adrian, who was a Norteno. Adrian and his Norteno friends had been disrespecting defendant’s sister, so he called David and asked him to bring his gun. Defendant admitted that he told David to “kill ‘em” or “shoot ‘em,” meaning Adrian and the other Nortenos. According to defendant, he wanted David to shoot any Norteno.
Detective Brucia testified as a gang expert and explained that the crimes were committed during a classic clash between members of rival gangs and that defendant committed the crimes on behalf of the Sureno gang. Detective Brucia was not aware of any other felonious activities by defendant, who was 14 years old when the crimes were committed.
Defense
Defendant testified he had been a Sureno for about a year at the time of the shooting. On the night of October 2, 2004, he heard arguing outside where his sisters were playing. Thinking they might be in trouble, he went outside and saw Adrian and his friends shouting insults. Defendant shouted back then went inside, called David, and asked him to bring his gun. Defendant asserted he did not want to shoot or kill anyone; he just wanted to scare off Adrian and his companions. When defendant went back outside, Adrian and his crew challenged him to a fight. Vanessa persuaded Adrian to leave with his friends, but they returned. Defendant, who claimed he did not own a machete, picked up a stick, and Vanessa pulled out a knife. David arrived with a rifle. When Adrian and his friends picked up rocks, defendant told David to “shoot ‘em.” Adrian had a rock the size of defendant’s head, and defendant was afraid of being hit. Defendant ran to the car when he heard the shots.
Defendant admitted he knew there were guns in the car when he was arrested two days later. He stated, however, he did not learn about the guns until the officers stopped the car, at which point Larry told him there were guns in the trunk.
DISCUSSION
I
Defendant, who was born on September 14, 1990, turned 14 years of age a few weeks before the murder on October 2, 2004. Rather than charging defendant in juvenile court, the prosecutor opted to charge him in criminal court pursuant to Welfare and Institutions Code section 707, subdivision (d). According to defendant, the trial court lacked fundamental jurisdiction to try him as an adult because the magistrate failed to make a necessary finding at the preliminary hearing.
As relevant to this case, Welfare and Institutions Code section 707, subdivision (d) authorizes the district attorney, or other appropriate prosecuting officer, to file an accusatory pleading against a minor 14 years of age or older in a court of criminal jurisdiction if the minor is alleged to have committed an offense punishable by death or life in prison if committed by and adult, or is alleged to have committed murder or attempted murder and the charged offense was committed for the benefit of, at the direction of, or in association with any criminal street gang. (Welf. & Inst. Code, § 707, subd. (d)(2)(A)&(C)(ii).)
When a minor is charged as an adult, “[i]n conjunction with the preliminary hearing as provided in Section 738 of the Penal Code, the magistrate shall make a finding that reasonable cause exists to believe that the minor comes within this subdivision. If reasonable cause is not established, the criminal court shall transfer the case to the juvenile court having jurisdiction over the matter.” (Welf. & Inst. Code, § 707, subd. (d)(4).)
Thus, subdivision (d) of Welfare and Institutions Code section 707 “limits the prosecutor’s discretion to file charges in criminal court to minors of a specified age who commit enumerated crimes under certain circumstances, and at the preliminary hearing the magistrate must find reasonable cause to believe that the minor has committed such a crime under those circumstances.” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 570.)
However, Penal Code section 860 provides “that a defendant represented by counsel may when brought before the magistrate as provided in Section 858 or at any time subsequent thereto, waive the right to an examination before such magistrate, and thereupon it shall be the duty of the magistrate to make an order holding the defendant to answer . . . .”
Here, after a substantial amount of evidence was presented at the preliminary hearing, defense counsel advised the magistrate that “what we have decided to do is to waive the remainder of the preliminary hearing.” Before accepting the waiver, the magistrate determined that defendant had discussed the facts of the case and the consequences of the waiver with his attorney. The magistrate also advised defendant of the maximum penalty for the charged offenses and of the rights that defendant was waiving by forgoing a preliminary examination. The magistrate then asked defendant whether he was waiving the right to a preliminary hearing as to each of the offenses, which the court specifically enumerated; was waiving the right to a preliminary hearing as to the gang allegation; and was “waiv[ing] hearing as to being over 14 or being 14 years or older?” Defendant replied affirmatively to each question. Finding that he had made a knowing and voluntary waiver, the magistrate held defendant to answer on the charges.
Defendant asserts that although he waived the right to a preliminary hearing, he did not waive the requirement that, in conjunction with the preliminary hearing, “the magistrate shall make a finding that reasonable cause exists to believe that the minor comes within the provisions” of Welfare and Institutions Code section 707, subdivision (d). He contends the magistrate failed to make such a finding, this was a fundamental defect, and all the ensuing proceedings were void. We disagree.
By his waiver, defendant admitted reasonable cause existed for every element necessary to try him for the charged offenses and enhancements and every factual underpinning necessary to try him as an adult. Accordingly, the magistrate’s ruling holding him to answer necessarily included an implicit finding that reasonable cause existed to believe defendant committed the requisite crimes under the requisite circumstances necessary to try him as an adult.
In any event, even if the magistrate was required to make an express finding that the circumstances showed that prosecution in criminal court was appropriate, the failure to do so does not, as defendant suggests, require reversal of the judgment and transfer of the case to juvenile court. Whether a case should proceed in juvenile or adult court “does not involve an issue of subject matter jurisdiction.” (People v. Nguyen (1990) 222 Cal.App.3d 1612, 1619.) If a minor is tried inappropriately in criminal court, it simply constitutes an excess of jurisdiction, not a lack of fundamental jurisdiction. (In re Harris (1993) 5 Cal.4th 813, 837.) Hence, if defendant believed that his waiver of a preliminary hearing did not encompass a waiver of the magistrate’s obligation to find reasonable cause existed that defendant was 14 and committed crimes under circumstances that justified trying him in criminal court, “‘it was his duty or the duty of his attorney to call this fact to the attention of the court, and failure to do so is a waiver of any rights thus granted.’ [Citation.]” (In re Harris, supra, 5 Cal.4th at p. 838.)
In sum, the claim that the trial court lacked fundamental jurisdiction is unavailing.
II
Defendant contends that he did not receive adequate Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (hereafter Miranda), that he did not waive his Miranda rights, and that his incriminating statements to the police were involuntary. Thus, according to defendant, the trial court erred in denying his motion to exclude these statements. Not so.
A Miranda waiver must be knowing, intelligent, and voluntary. (Colorado v. Spring (1987) 479 U.S. 564, 573 [93 L.Ed.2d 954, 965].) There are two distinct dimensions to this requirement: “‘First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.’” (Ibid., quoting Moran v. Burbine (1986) 475 U.S. 412, 421 [89 L.Ed.2d 410, 421].)
We independently review the totality of the circumstances to determine whether the prosecution has met its burden and proved that the statements were voluntary. (Arizona v. Fulminante (1991) 499 U.S. 279, 285-286 [113 L.Ed.2d 302, 315]; People v. Thompson (1990) 50 Cal.3d 134, 166, disapproved on other grounds in Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829.) In making this determination, we consider factors such as the length of the interrogation, its location, its continuity, and the defendant’s sophistication, education, physical condition, and emotional state. (People v. Williams (1997) 16 Cal.4th 635, 660; In re Shawn D. (1993) 20 Cal.App.4th 200, 209.) “[A]ny factual findings by the trial court as to the circumstances surrounding an admission or confession, including ‘“the characteristics of the accused and the details of the interrogation” [citation],’ are subject to review under the deferential substantial evidence standard. [Citation.]” (People v. Williams, supra, at p. 660.)
Here, Detectives Brucia and Kermgard interviewed defendant. They asked a few preliminary questions about his age and grade in school, and then informed him that he had been arrested for carrying a loaded concealed weapon. The detectives explained that they wanted to discuss the matter but first needed to advise him of his rights, as follows: “You have the right to remain silent. Anything you say may be used against you in court. [¶] You have a right to the presence of an attorney before and during any questioning. If you cannot afford an attorney, one will be appointed for you free of charge before any questioning if you want. [¶] Do you understand those rights?”
Defendant nodded that he understood. After a brief pause, one of the detectives asked defendant: “You want to tell me what happened today and kind of how you became involved in that car and getting arrested and stuff today?” Defendant indicated that he did not understand the question but freely answered the questions that followed. A short time later, the detectives began to discuss Adrian’s murder. They eventually obtained defendant’s statement that he was a gang member who had summoned David, a fellow gang member, to bring a gun to shoot the Nortenos because “they were disrespecting [defendant’s] house.” He urged David to “kill ‘em” because he wanted any Norteno shot.
In defendant’s view, the Miranda advisement was inadequate because, rather than being advised that his statements can and will be used against him in court, he was told his statements may be used against him; furthermore, he was not told of the right to consult with counsel prior to being questioned, only to the right to the presence of counsel prior to questioning. The contention fails.
Miranda warnings “are ‘prophylactic’ [citation] and need not be presented in any particular formulation or ‘talismanic incantation.’ [Citation.] The essential inquiry is simply whether the warnings reasonably ‘“[c]onvey to [a suspect] his rights as required by Miranda.”’ [Citation.]” (People v. Wash (1993) 6 Cal.4th 215, 236-237.)
The advisement that any statements may be used against him reasonably conveyed to defendant that his statements could be used against him. And notification that he had the right to the presence of an attorney free of charge prior to questioning reasonably conveyed that he had the right to consult with an attorney before answering the detectives’ questions. Indeed, Miranda summarized its holding as follows: “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” (Miranda, supra, 384 U.S. at p. 444 [16 L.Ed.2d at pp. 706-707], italics added.) Thus, the warnings given to defendant “reasonably conveyed” his essential Miranda rights.
The circumstances also support the trial court’s finding that defendant waived his Miranda rights. “[A]n express wavier [of Miranda rights] is not required where a defendant’s actions make clear that a waiver is intended.” (People v. Whitson (1998) 17 Cal.4th 229, 250; North Carolina v. Butler (1979) 441 U.S. 369, 373 [60 L.Ed.2d 286, 292] [“waiver can be clearly inferred from the actions and words of the person interrogated”].) A suspect’s indication he understood the Miranda advisement, and his subsequent responses to questions, demonstrate a knowing and intelligent agreement to speak with authorities. (People v. Whitson, supra, at pp. 247-250 [defendant’s willingness to speak with the police readily apparent from his responses]; People v. Medina (1995) 11 Cal.4th 694, 752 [express statement of waiver not required when defendant was read his rights and thereafter made a statement]; People v. Sully (1991) 53 Cal.3d 1195, 1233 [implied waiver found when suspect was advised of his rights, said that he understood them, and then gave a statement].)
Defendant’s waiver of his Miranda rights can be implied from the fact that, after nodding affirmatively indicating he understood his rights, and after a pause during which there was ample time for him to choose to refuse to speak to the detectives or to choose to request an attorney, defendant answered the detectives’ questions.
Defendant argues there is no basis to imply a waiver because he was an unsophisticated minor, was not very bright intellectually, and was tired after being in jail for five hours before questioning. But neither a low I.Q. nor any particular age of minority is a proper basis to assume his inability to voluntarily waive Miranda rights. (People v. Lewis (2001) 26 Cal.4th 334, 384 [rejecting the claim that a 13 year old lacked capacity to waive Miranda rights]; In re Charles P. (1982) 134 Cal.App.3d 768, 772 [upholding waiver of Miranda rights by a 12 year old]; see also In re James B. (2003) 109 Cal.App.4th 862, 873 [waiver of Miranda rights by a 12 year old].) Nor is there any evidence defendant was sleepy or exhausted when the detectives questioned him at 7:23 p.m. Defendant’s demeanor during questioning disclosed that he was alert and coherent, although concerned about his situation. The fact that defendant was able to respond to the detectives’ questions in a meaningful way demonstrated his education and age were not impediments to his understanding and waiving his Miranda rights.
We conclude that the videotape of the interview and the totality of the circumstances show defendant’s statements were voluntary and uncoerced. During the interview, which was not lengthy, the detectives were not overbearing or intimidating. They made sure defendant had been fed and treated him in a manner appropriate for a boy of his age. Defendant understood their questions and answered them coherently. In determining voluntariness, the critical issue is “whether the defendant’s ‘will was overborne at the time he confessed.’” (People v. Maury (2003) 30 Cal.4th 342, 404; see also, e.g., In re Shawn D., supra, 20 Cal.App.4th at p. 208.) It was not.
Defendant disagrees with this assessment and argues the detectives impermissibly made an implied promise that if he told the truth, he would not be prosecuted for murder. He relies on specific portions of the interview which, when viewed in context, do not support his claim.
During the interview, one of the detectives said: “I don’t think that you want to be involved in a homicide investigation. I already know that you were out there when Adrian was shot so don’t tell me that you weren’t there. [¶] You are 14 years old. You do not want to spend the rest of your life in jail or prison or CYA or wherever because you are part of this. [¶] Now is the time to start distancing yourself from who I already know pulled the trigger.”
Defendant asked why he was being questioned. The detective replied: “Because people are putting you there and that makes you involved. It makes you involved in conspiracy to commit murder. And that, basically--conspiracy to commit murder is basically the same as committing murder. [¶] If you weren’t part of the planning of that homicide or a part of the commission of that homicide, there is no reason for you to go to prison for the rest of your life. Just being there, I mean, don’t get me wrong, being there is a problem, but it’s a much better problem to have to deal with than being part of a homicide.”
After telling defendant that David had been arrested, the detective stated: “Whether anyone else gets charged with murder is based on basically how honest they are and how forthcoming they are with me when they sit in that chair. [¶] I already know that he shot and killed Adrian. You don’t need to compound your problems by sitting here and trying to protect him or lying to me because that’s not going to help you. [¶] You got to think about Adrian’s family. You got to think about the guy that was killed, that family. You got to think about yourself, your family, your mom. Do you think your mom wants me to call her and tell her that you were arrested for murder tonight?”
The detective informed defendant that others had placed defendant at the scene. He explained that if defendant is “just standing out there and shit breaks out around you and you didn’t know anything about it, that’s one thing. But if you are part of it, if you are out there yelling, screaming, telling someone to get a gun, telling them to shoot him, something like that, yeah, that’s a lot different. But I don’t think you were actually out there yelling, shoot em, shoot em. [¶] Am I right?”
Defendant nodded and the detective replied: “I didn’t think so. You’re 14 years old. You got caught up in the wrong place at the wrong time, didn’t you?” At that point, defendant said that he was there but did not know David was going to shoot anyone. The detective later told defendant: “You don’t want to sit here and lie to me and tell me that you don’t know what happened when other people have already told me what happened. You don’t want to drag yourself into this. When you lie to me, that means that you become part of the conspiracy and that’s when you get arrested for conspiracy to commit murder. [¶] Like I said, I don’t think you want to be here for that. I don’t think that’s what you did. But if you sit here and lie to me, then it makes me think that you were part of it.” Soon thereafter, defendant revealed that he had called David to bring the gun and, when David arrived, defendant told him “kill ‘em,” meaning Adrian and his friends.
“‘[W]here a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law.’” (People v. Williams, supra, 16 Cal.4th at p. 660.) But “investigating officers are not precluded from discussing any ‘advantage’ or other consequence that will ‘naturally accrue’ in the event the accused speaks truthfully about the crime. [Citation.] The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 340.)
Here, there is no evidence that a promise of leniency prompted defendant’s confession. Rather, the detective’s comments advised defendant that if he lied to protect David or others involved in the murder, defendant could be charged with conspiracy to commit murder; thus, he should be honest to avoid this fate. As the detective stated, “You don’t want to drag yourself into this.” But the detective also advised him that if he was actually involved in the murder and told someone to get a gun and shoot the victims, “that’s a lot different.” Viewed in context, the detective’s statements conveyed that liars who protect participants in the murder could be charged with conspiracy to commit murder, not that participants will not be prosecuted if they are honest about their involvement.
Under the totality of the circumstances, defendant’s statements were voluntary, and the trial court properly allowed them to be introduced into evidence.
III
We next reject defendant’s argument that we must reverse the murder and attempted murder convictions because there was insufficient evidence that he harbored the requisite intent to kill the victims.
Attempted murder requires the specific intent to kill. (People v. Lee (2003) 31 Cal.4th 613, 623.) “First degree murder may be found when the prosecution proves beyond a reasonable doubt that the actor killed with malice aforethought, intent to kill, premeditation, and deliberation.” (People v. Memro (1995) 11 Cal.4th 786, 862; see also Pen. Code, §§ 187, 189.) Intent to kill is rarely proved by direct evidence; rather, it must usually be inferred from circumstantial evidence. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-1208.)
Defendant contends he simply told David to shoot the victims, which is not the same as urging him to kill them. Defendant fails to give due deference to the relevant standard of review.
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In his statement to the detectives, defendant admitted that on the night of the murder, he summoned David, a fellow gang member, to bring a gun because Adrian and his friends had been disrespecting defendant’s sister and “disrespecting [defendant’s] house.” After calling David, defendant told Vanessa his “homies” were coming with a gun and it would not be defendant’s fault if Adrian got “blasted.” Defendant threatened to kill Isael. He told the detectives that after David arrived, defendant urged David to “kill ‘em” and “shoot ‘em,” meaning Adrian and his friends, because defendant wanted any Norteno shot. In other words, he intended to kill them all. This is ample evidence that defendant harbored the specific intent to kill Adrian, Gustavo, Isael, and Albert.
Defendant appears to argue that People v. Bland (2002) 28 Cal.4th 313 (hereafter Bland) dictates a different result with respect to the three attempted murder counts because there is no evidence that defendant specifically intended to kill Albert, Gustavo, and Isael after Adrian was killed.
Bland held that attempted murder requires the specific “inten[t] to kill the alleged victim, not someone else. The defendant’s mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others.” (Bland, supra, 28 Cal.4th at p. 328.) But Bland also held that there could be a concurrent intent such that “a person who shoots at a group of people [may still] be punished for the actions towards everyone in the group even if that person primarily targeted only one of them.” (Id. at p. 329.) Concurrent intent can be inferred “‘when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity,’” which is referred to as a “kill zone.” (Ibid.)
Defendant intimates Adrian was the primary target and there is no evidence that defendant or David had the intent to kill Gustavo, Isael, and Albert after Adrian was shot. In his view, Adrian’s companions were scattering and out of harm’s way when David continued shooting, which means David was intending only to drive them off or to commit an assault.
“Bland did not suggest that the ‘kill zone’ was the only way to establish concurrent intent to kill more than one person in a fired-upon group. [¶] ‘“The act of firing toward a victim at a close, but not point blank, range ‘in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill. . . .’”’ [Citation.]” (People v. Campos (2007) 156 Cal.App.4th 1228, 1242.) That is one interpretation of what occurred in this case. Defendant wanted Nortenos killed and urged the gun-toting David to “kill ‘em,” meaning Adrian, Gustavo, Isael, and Albert. Defendant did not say “kill Adrian” or “kill one of them”; he said “kill ‘em” and unleashed David and his rifle on all four of the Nortenos, who were armed with only rocks. This supports an inference of an intent to kill all four men.
In defendant’s reply brief, he observes the People failed to respond to defendant’s argument that there is insufficient evidence of premeditation and deliberation to support the murder and attempted murder counts. However, defendant’s three-page argument in his opening brief does not include any analysis of the minimum evidence required to support a finding of premeditation and deliberation. It discusses only the lack of an intent to kill and merely contains a throw away line at the close of his argument “that an intent to kill and premeditation and deliberation are not supported by the evidence.” Therefore, the argument is forfeited because of defendant’s failure to adequately develop and support it in his opening brief. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [a reviewing court need not discuss claims asserted perfunctorily and insufficiently developed]; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159 [appellate contentions must be supported by analysis]; People v. Baniqued (2000) 85 Cal.App.4th 13, 29 [omissions in opening briefs cannot be rectified in reply briefs].)
In any event, there is ample evidence of premeditation and deliberation.
“‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .” [Citations.]’” (People v. Koontz (2002) 27 Cal.4th 1041, 1080; accord, People v. Halvorsen (2007) 42 Cal.4th 379, 419.) The processes can occur rapidly, even after an altercation is underway. (People v. Mayfield (1997) 14 Cal.4th 668, 767; People v. Sanchez (1995) 12 Cal.4th 1, 34.)
The types of evidence that typically support a finding of premeditation and deliberation are planning activity, a relationship with the victim or conduct from which a motive can be inferred, and a manner of killing or attempted killing from which a preconceived plan can be inferred. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) However, these categories are not prerequisites; they are guidelines to assist reviewing courts in assessing whether the evidence supports an inference that a killing or attempted killing resulted from preexisting reflection and a weighing of considerations rather than an unconsidered or rash impulse. (People v. Sanchez, supra, 12 Cal.4th at pp. 32-33.)
Here, defendant became agitated over the Nortenos’ lack of respect, challenged them to fight, and threatened to kill Isael. After the Norteno group left, defendant chose to telephone David and ask him to bring a gun. He then told Vanessa that his “homies” were coming with a gun and indicated Adrian might get “blasted.” The Nortenos returned and, when David and Larry arrived armed with a rifle and bottles, the Nortenos armed themselves with rocks. Defendant told David to “kill ‘em.”
These facts reflect that defendant made a premeditated and deliberate decision to escalate a verbal altercation into a deadly one by instigating David to bring a firearm to the fracas and then urging David to use it in a deadly manner. Substantial evidence supports a finding of premeditation and deliberation.
IV
Defendant contends the trial court erred in instructing the jury with CALCRIM No. 600, which is based on language in Bland, supra, 28 Cal.4th 313.
In relevant part, the court instructed the jury: “A person may intend to kill a person -- may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or ‘kill zone.’ [¶] In order to convict the defendant of the attempted murder of Gustavo Teran, Isael Teran, or Alberto [sic] Blanco, the People must prove that the defendant not only intended to kill Adrian Cortez,but also either intended to kill Gustavo Teran, Isael Teran and Alberto [sic] Blancoor intended to kill anyone within the ‘kill zone.’ [¶] If you have a reasonable doubt whether the defendant intended to kill Gustavo Teran, Isael Teran or Albert Blanco, or intended to kill Adrian Cortez by harming everyone in the ‘kill zone,’ then you must find the defendant not guilty of the attempted murder of Gustavo Teran, Isael Teran or Alberto [sic] Blanco.” (Italics added.)
Defendant’s challenge to the instruction is not a model of clarity. As best we can discern, he believes the instruction incorrectly conveys that the jury could find him guilty of three counts of attempted murder if he (1) intended only to harm people in the kill zone, rather than to kill them, and (2) intended to kill anyone in the area, rather than everyone.
In reviewing the claim of error, “‘we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 957.) In conducting this inquiry, we must view the challenged instruction in the context of the overall charge, rather than judged in artificial isolation. (Ibid.; see also People v. Smithey (1999) 20 Cal.4th 936, 963.)
We conclude that no reasonable juror would have construed the challenged instruction as permitting three attempted murder convictions premised on a mere intent to harm the victims rather than an intent to kill them. First, another portion of CALCRIM No. 600 advised the jury that in order to find defendant guilty of the attempted murder of Albert, Gustavo, and Isael, it had to find defendant intended to kill them. Second, the only way that defendant could kill Adrian by harming everyone in the zone is if the harm inflicted was fatal harm; nonlethal harm would not result in Adrian’s death. If a person intentionally inflicts lethal harm on everyone in the zone, it reasonably follows that the person necessarily intended to kill everyone in the zone.
As for defendant’s claim that the instruction is infirm because it permitted the jury to find defendant guilty of three counts of attempted murder if he intended to kill anyone in the zone rather than everyone, a similar challenge to CALCRIM No. 600 was rejected in People v. Campos, supra, 156 Cal.App.4th 1228 (hereafter Campos). The defendant in Campos argued the decision in Bland established the “kill zone” concept and defined “kill zone” as a zone in which the assailant intends to kill “everyone” to ensure harm to a target victim. CALCRIM No. 600 defines the “kill zone” as the zone in which the defendant intends to kill “anyone.” The defendant claimed that by using the word “anyone” instead of “everyone,” the instruction improperly expanded the Bland “kill zone” concept and permitted a conviction for attempted murder “without proof that all members of the group were subjected to the risk of death, and, consequently, without the intent to kill all group members.” (Campos, supra, 156 Cal.App.4th at p. 1241.) Campos concluded there was no reasonable likelihood that the jurors misconstrued or misapplied the words of the instruction in a manner that misled them regarding the requisite specific intent. (Ibid.) There, as here, the jury was properly instructed on the elements of attempted murder, including that the defendant harbor the specific intent to murder the person whose attempted murder is charged, and was also properly instructed on the definition of express malice. (Id. at p. 1243; see CALCRIM Nos. 520 & 600.) The “kill zone” portion of CALCRIM No. 600 is superfluous because the “theory ‘is not a legal doctrine requiring special jury instructions, . . . Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.’ Citations.” (Campos, supra, 156 Cal.App.4th at p. 1243.)
In addition, the instruction is not necessarily inconsistent with Bland. Although it states that proving defendant guilty of the attempted murder of Alberto [sic], Isael, and Gustavo required proof that defendant intended to kill not only Adrian but Alberto [sic], Isael, or Gustavo or “anyone within the ‘kill zone’ (italics added), the instruction clarified that “[i]f you have a reasonable doubt whether the defendant intended to kill Gustavo Teran, Isael Teran or Albert Blanco, or intended to kill Adrian Cortez by harming everyone in the ‘kill zone,’ then you must find the defendant not guilty of the attempted murder of Gustavo Teran, Isael Teran or Alberto [sic] Blanco.” (CALCRIM No. 600.) “This language is consistent with Bland and directed the jury that it could not find [defendant] guilty of attempted murder . . . under a ‘kill zone’ theory unless it found that he intended to harm ‘everyone’ in the zone.” (Campos, supra, 156 Cal.App.4th at p. 1243.)
As the decision in Campos pointed out: “[T]here is little difference between the words ‘kill anyone within the kill zone’ and ‘kill everyone within the kill zone.’ In both cases, there exists the specific intent to kill each person in the group. A defendant who shoots into a crowd of people with the desire to kill anyone he happens to hit, but not everyone, surely has the specific intent to kill whomever he hits, as each person in the group is at risk of death due to the shooter’s indifference as to who is his victim.” (Campos, supra, 156 Cal.App.4th at p. 1243; but see People v. Stone (Mar. 4, 2008, F051812) ___ Cal.App.4th ___ [where only one shot is fired into a crowd and only one attempted murder is charged, the kill zone theory is not applicable and, thus, it is error to instruct with CALCRIM No. 600].)
In any event, it is not reasonably probable that defendant would have obtained a more favorable result if the “kill zone” portion of the instruction had been omitted. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1157 [misdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836].) As noted earlier, defendant threatened to kill Isael and warned Vanessa that her cousin, Adrian, could get “blasted” once defendant’s “homies” arrived. Defendant expressly urged David to “kill ‘em” and “shoot ‘em,” meaning Adrian, Gustavo, Isael, and Albert, because defendant wanted a Norteno shot, any Norteno. This evidence showed that defendant intended to have all of them killed. Simply stated, the evidence of his intent to kill was overwhelming under the “kill zone” theory or otherwise. (Campos, supra, 156 Cal.App.4th at p. 1244; People v. Smith (2005) 37 Cal.4th 733, 743 [“evidence that defendant purposefully discharged a lethal firearm at the victims, both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire, can support an inference that he acted with intent to kill both”].)
For all of the reasons stated above, defendant’s challenge to CALCRIM No. 600 fails.
V
According to defendant, his convictions for possession of a loaded firearm by a gang member and possession of a sawed-off shotgun (counts 7 and 8 respectively) must be reversed because there is insufficient evidence that he had actual or constructive possession of the guns. He also claims count 7 must be reversed because there is no evidence that he possessed the firearm “while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.” (Pen. Code, § 12031, subd. (a)(1); further section references are to the Penal Code unless otherwise specified.) We disagree with both contentions.
A
“Actual possession occurs when the defendant exercises direct physical dominion and control over the item . . . . [Citation.] Constructive possession does not require direct physical control over the item ‘but does require that a person knowingly exercise control or right to control a thing, either directly or through another person or persons.’ [Citation.]” (People v. Austin (1994) 23 Cal.App.4th 1596, 1608-1609, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 867.) It is not necessary to prove exclusive possession of the prohibited item or of the place where it is found. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Constructive possession and control over the item may be shown by circumstantial evidence and any reasonable inferences drawn from that evidence. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Williams (1971) 5 Cal.3d 211, 215.)
Here, Larry, two other males, and defendant drove in a car to Larry’s residence. Larry went inside and returned with something in a blanket, which he put in the trunk. After the four men drove off, officers stopped the car. In the trunk, they found a loaded handgun and sawed-off shotgun wrapped in a blanket. Defendant admitted he knew the guns were present in that Larry had told them they were in the trunk, and he admitted handling them in the past. A gang expert testified that committing murders and attempted murders are primary activities of the Surenos, and that Sureno gang members use firearms in the commission of gang-related crimes and keep their weapons close at hand. Two days earlier, defendant had instructed David to bring a gun to combat the Nortenos and David had done so, bringing his brother, Larry, as well as the requested firearm.
There is no evidence that the gun David and Larry brought to the altercation was one of the guns that Larry put in the trunk of the car two days later. Nevertheless, substantial evidence supports a finding that defendant, a Sureno gang member with Larry, had joint control over and access to the guns in the trunk for use in their gang activities. Indeed, defendant told detectives that he had held the handgun and sawed-off shotgun at Larry’s residence in the past. Thus, this is not a case in which defendant simply was in the proximity of guns he knew were possessed by another person. Two days earlier, defendant had summoned Larry’s brother, David, to bring a gun to harm rival gang members. David did so along with Larry, a fellow gang member. Defendant knew that guns were kept at David’s and Larry’s home for gang activity, and that David and Larry would assist defendant in using them for such a purpose. When Larry, a member of a criminal street gang that routinely uses guns to commit crimes, hid a loaded handgun and a sawed-off shotgun in a blanket and put them in the trunk of a car in which a fellow gang member was riding, an obvious inference is that the guns were put there for those in the car to use in impending criminal gang activity. Simply stated, a reasonable inference is that, just as defendant had obtained David’s and Larry’s assistance in getting a gun to harm rival gang members two days earlier, he went to the home with Larry to get guns and use them for a gang-related purpose. In other words, substantial evidence supports a reasonable inference that defendant knew the guns were put in the trunk so he and the others in the car could use them. Accordingly, defendant had constructive possession of the guns.
B
Also without merit is defendant’s contention that the evidence is insufficient to support the gun possession conviction in count 7.
Section 12031, subdivision (a)(1) states: “A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.” The crime is punishable as a felony “[w]here the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22” (§ 12031, subd. (a)(2)(C)).
On direct examination, Lodi Police Detective Dale Eubanks testified that while investigating the murder of Adrian Cortez, he located a car matching the description of a vehicle involved in the homicide. The car was parked at a residence on Murray Street in Lodi. After watching the car for about 10 minutes, Eubanks saw four men get into it and drive off. The men traveled to a residence on East Turner Road, where Eubanks saw the men get out of the car. Eubanks knew it was the residence of Larry and David Villanueva. Eubanks saw Larry go into the residence while the other men waited outside. When Larry came out, he was carrying something in what appeared to be blankets or towels. He put it in the trunk of the car, and the men got in and drove off. The car went “westbound on Turner Road and made a southbound turn on Beckman, at which time the vehicle was stopped” by surveillance officers. A search of the trunk revealed a loaded .357 caliber handgun and a sawed-off shotgun wrapped in a blanket.
After the parties rested, and counsel and the trial court were discussing what instructions should be given to the jury, defense counsel disputed that the gun possession occurred on streets in an incorporated city. The court wrestled with the issue for a while and then stated: “You know what? I don’t have to tell [the jurors] anything. That’s for them to decide. I don’t have to say a thing. Maybe they will ask me. Okay. I don’t have to say anything.”
Apparently seizing on the fact the prosecutor failed to ask Detective Eubanks whether the home on East Turner Road was in the City of Lodi or “in a prohibited area of unincorporated territory” within the meaning of section 12031, subdivision (a)(1), defendant argues the conviction on count 7 must be reversed for insufficiency of the evidence in that the conviction “could not be sustained by guessing that the police were in Lodi when they stopped the car they were following.”
The People urge us to infer that the location must have been within the city limits since a Lodi police officer made the vehicle stop on a public street. However, the authority of a Lodi police detective “extends to any place in the state” when the officer is investigating a crime such as the murder committed in Lodi two days earlier. (Pen. Code, § 830.1, subd. (a)(1).)
What both defendant and the People overlook is the following exchange during defense counsel’s cross-examination of Detective Eubanks: “Q. Okay. And so that car went where? [¶] A. To 1105 East Turner Road. [¶] Q. 1105, that’s in Lodi? [¶] A. Yes. [¶] Q. Who lives at 1105 East Turner? [¶] A. The Villanueva family.”
Thus, the cross-examination of Detective Eubanks disclosed that defendant had constructive possession of loaded firearms (see discussion above) while in a public place and on a public street in the City of Lodi. This satisfies the elements of the statute which makes it a felony to carry a loaded firearm in a vehicle while in any public place or on any public street in an incorporated city. (§ 12031, subd. (a)(1).)
VI
Defendant contends the trial court erred when it addressed the jury’s questions regarding the terms “consequences” and “deliberately” in CALCRIM No. 521, an instruction that assists the jury in deciding whether first degree murder was committed. We are not persuaded.
The court instructed with CALCRIM No. 521 as follows: “The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately and with premeditation. [¶] The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. [¶] A decision to kill made rashly, impulsively or without careful consideration is not deliberate and premeditated. [¶] On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection. The length of time alone is not determinative.”
During deliberations, the jury asked the court: “When the instructions talk about a consequence, do they mean a legal consequence or do they mean a consequence like somebody possibly getting hurt or killed or something like that?” The court replied that it would depend on the context in which the jury was talking about the term “consequence.” Juror No. 3 said the question was in the context of describing the “three elements” of murder, which the court assumed was a reference to CALCRIM No. 521. The court explained that it referred to “factual consequences. In other words, what’s going to happen if this trigger is pulled, that sort of thing.”
Sometime later, the jury submitted the following question: “Regarding 1st degree murder, we need different words describing the definition of ‘deliberately’ or expanded definitions or examples specifically of these parts of the definition: [¶] ‘carefully weighed’ [¶] ‘consequences’ -- again what exactly could be a ‘fact’ [¶] ‘decided to kill’ -- does this include decided to kill or cause great bodily injury[?] [¶] If possible -- use different words to explain the definition of deliberately.”
Over defense counsel’s objection, the trial court further explained the concept for the jury, using language from People v. Cordero (1989) 216 Cal.App.3d 275 at page 281 (hereafter Cordero) as follows: “Homicides occur in diverse factual settings and the thought processes invoked by assailants are varied. In many instances, an assailant will contemplate consequences to both the victim and to his or her own future. In other cases, the deliberation will simply involve consequences to a third party or even an idea or strongly held principle. [¶] When a slayer chooses killing over another course of action, the results occasioned by that course of action can be enumerable. [¶] The slayer need not have in mind all or any particular type of consequence. He may reflect on several consequences, but it is not a requirement that there be reflection about more than one consequence. [¶] A finding of deliberation may be based on any one consequence.”
The court also instructed the jury with CALJIC No. 8.20, which states in pertinent part: “The word deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. [¶] The word premeditated means considered beforehand. [¶] If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree. [¶] . . . [¶] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice. And, having in mind the consequences, he decides to and does kill.”
The jury then asked: “A finding of deliberation may be based on any one consequence. If only one consequence is determined, must that be a finding of deliberate?” The court explained: “[Y]ou can’t find deliberate unless you find a consequence, but just because you find a consequence doesn’t mean you are required to say it is deliberation.”
When the jury continued to seek guidance, the court suggested the jury review the written instructions. Thereafter, the jury convicted defendant of first degree murder and attempted murder with premeditation and deliberation.
Characterizing the trial court’s additional instructions as indicating “any sort of consequence of pulling the trigger would suffice,” defendant argues: “This is not the meaning of the instruction for the ‘consequence’ is not one from simply pulling the trigger, rather it is ‘those flowing from the act of killing.’ Anyone with an intent to kill has contemplated the consequence of his act of pulling the trigger, i.e., he will cause death. The fact which Cordero really states is to be contemplated is some event flowing from the death, something beyond the death itself.” In defendant’s view, the additional instructions were confusing and “incorrectly suggested merely any consequence of pulling the trigger was all that was required” “rather than the consequence that would flow from that killing.”
Cordero does not require, nor does any other legal authority require, that to act deliberately in committing murder by shooting, the perpetrator must contemplate every consequence to both the victim and to the perpetrator’s future if the decision to kill is made. It suffices if the actor weighs considerations for and against a choice to kill and decides to kill, knowing the decision will result in consequences that include the victim’s death. Viewing as a whole the instructions and the court’s responses to the jury’s inquires (People v. Castillo (1997) 16 Cal.4th 1009, 1016), reasonable jurors would understand the concept of deliberation means defendant must have considered the consequences of killing the victim, not merely the consequences of pulling the trigger. There was no error.
VII
Defendant was sentenced to 95 years to life, plus three separate indeterminate life terms, as follows: He received a term of 25 years to life for the murder (count 1) plus 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)); three consecutive life terms with the possibility of parole for the attempted murders (counts 2-4) plus three consecutive terms of 15 years to life for the gang enhancements (§ 186.22, subd. (b)(1)); an upper term of three years, stayed, for participation in a criminal street gang (count 5); an upper term of three years, stayed, for possession of a loaded firearm by a criminal street gang member (count 7); and a concurrent middle term of two years for possession of a sawed-off shotgun (count 8).
Defendant challenges his sentence on three grounds, two of which have merit.
A
Defendant contends, and the People concede, that the court erred in imposing three consecutive terms of 15 years to life for the gang enhancements (§ 186.22, subd. (b)(1)). We agree.
Section 186.22, subdivision (b)(1) specifies an enhancement of two to ten years “[e]xcept as provided in paragraphs (4) and (5).” Paragraph (5) states in relevant part that “any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served,” rather than the minimum term of seven years (§ 3046) required of those convicted of the same offense without the criminal street gang enhancement.
“For these felonies, the gang enhancement provision does not alter the indeterminate term of life imprisonment; it merely prescribes the minimum period the defendant must serve before becoming eligible for parole. [Citation.] Thus, for these felonies, the gang enhancement provision does not increase the life term for the underlying offense.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 327.)
“The crime of attempted willful, deliberate, and premeditated murder falls within the gang statute’s category of offenses punishable by an indeterminate term of imprisonment for life. . . . There is no increase in the maximum statutory penalty for the crime of attempted murder, which remains ‘imprisonment in the state prison for life with the possibility of parole.’ (§ 664, subd. (a).)” (People v. Sengpadychith, supra, 26 Cal.4th at p. 328.)
Therefore, the court erred in imposing three enhancements of 15 years to life for the three attempted murders. We shall modify the judgment and direct the court to correct the abstract of judgment (1) by striking the three enhancements of 15 years to life in prison, and (2) by noting a 15-year minimum parole eligibility date on the three attempted murder counts pursuant to section 186.22, subdivision (b)(5).
B
Defendant contends, and the People concede, that imposition of the upper term on his conviction for street terrorism (count 5) and possession of a loaded firearm by a criminal street gang member (count 7) based on the victims’ vulnerability violated his federal constitutional rights.
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 303-305 [159 L.Ed.2d 403, 413-414].)
Thus, in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Id. at p. __ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 on this point, vacated in Black v. California (2007) __ U.S. __ [167 L.Ed.2d 36].)
Here, the trial court relied on the victim’s vulnerability, which is a factor that must be tried to the jury. The error is not harmless because we cannot say “beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury.” (People v. Sandoval (2007) 41 Cal.4th 825, 839.)
Because the error was not harmless, the ordinary procedure would be to remand for resentencing “in a manner consistent with the amendments to the [determinate sentencing law] adopted by the Legislature,” which amendments eliminate the presumption of the middle term absent aggravating or mitigating factors. (People v. Sandoval, supra, 41 Cal.4th at pp. 845-846, 857-858.)
The People urge us to simply modify the sentences by reducing them to the middle term. In the Attorney General’s view, “[g]iven the nature of the appropriate unstayed aggregate sentence imposed upon [defendant], to wit, 50 years to life, plus three consecutive indeterminate life terms, . . . the proper remedy here is to modify the stayed sentences on counts 5 and 7 to the middle term of two years, rather than remand the matter.” We agree and shall modify the judgment accordingly. Thus, we need not address defendant’s additional contention that there is no evidence the victims were particularly vulnerable.
C
Defendant argues that his sentence of 50 years to life, plus three consecutive indeterminate life terms, constitutes cruel and unusual punishment in violation of the California and federal Constitutions.
Defendant forfeited this claim by failing to raise it at the time of sentencing. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) In any event, even if he had properly preserved the issue, the claim would fail.
A punishment violates the California Constitution “if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) In applying this principle, we look to (1) the nature of the offense and the offender, (2) a comparison with the penalty for more serious crimes in the same jurisdiction, and (3) a comparison with the punishment imposed for the same offense in different jurisdictions. (Id. at pp. 425-427.)
Defendant addresses only the first factor, the nature of the offense and the offender, emphasizing that he was barely 14 years old at the time of the crimes and that he had no prior criminal history. He argues that his sentence is disproportionate because he was only an aider and abettor but he will be in prison longer than the actual shooter.
Defendant makes no effort to compare his sentence with more serious offenses in California or with punishments in other states for the same offense, which we take as a concession that his sentence withstands a constitutional challenge on either basis. (People v. Crooks (1997) 55 Cal.App.4th 797, 808 [defendant bears burden of establishing disproportionality].) He merely intimates that his sentence is disproportionate in comparison to other states because only 15 states allowed direct filing in criminal court against a minor that is 14. But defendant does not provide us with any analysis of how other jurisdictions punish similar youthful defendants. Since defendant has not cited any authority supporting a claim of inter jurisdictional disproportionality, we reject any such claim. (People v. Freeman, supra, 8 Cal.4th at p. 482, fn. 2.)
The three codefendants all pled guilty to lesser offenses and were sentenced as follows: David, the shooter, was sentenced to 35 years to life; Larry was sentenced to 17 years and 8 months; and Martin Castro was sentenced to 7 years in state prison. Defendant rejected the People’s offer of a term of 20 years to life.
In considering the nature of the offense and the offender, we examine not only the offense as defined by the statutes but also the particular facts of defendant’s crime. We review his motive, the manner in which he committed the crime, the extent of his involvement in the offense, and the consequences of his acts. We also take into account his culpability in light of age, prior criminality, personal characteristics, and state of mind. (People v. Crooks, supra, 55 Cal.App.4th at p. 806.)
Here, defendant reacted to the taunts of Adrian, Isael, Gustavo, and Albert by telephoning David and asking him to bring a gun. He chose to respond to mere name-calling with deadly force. He chose to go back outside and physically engage in a fight with the four Nortenos. He chose to urge David to “kill ‘em” even though the four young men were armed with only rocks. Defendant fails to appreciate the gravity of his conduct; he may not have pulled the trigger, but he caused 16-year-old Adrian’s death. It is fortunate for Isael, Gustavo, and Albert that they, too, were not killed.
Defendant’s claim that he was only an aider and abettor and did not actually shoot Adrian minimizes the nature of his conduct. “The Legislature has chosen to severely punish aiders and abettors to crimes by a principal armed with a gun committed in furtherance of the purposes of a criminal street gang. It has done so in recognition of the serious threats posed to the citizens of California by gang members using firearms.” (People v. Gonzales (2001) 87 Cal.App.4th 1, 19 [rejecting a claim of cruel and unusual punishment in an aiding and abetting case that resulted in a life sentence].)
That defendant had no significant prior criminal record is not determinative. (People v. Martinez (1999) 76 Cal.App.4th 489, 497.) Defendant “was a member of a criminal street gang, the primary purpose of which was to commit acts of violence in order to intimidate the community and other gangs. Thus, defendant may not have had formal convictions; however, it is reasonable to infer that he was an active gang member, and personally subscribed to its criminal purposes.” (People v. Villegas (2001) 92 Cal.App.4th 1217, 1230.)
As for defendant’s complaint that David received a lesser sentence, 35 years to life, this is the nature of plea bargains. The prosecution is relieved of its burden of proving guilt and, in return, the criminal defendant is allowed to plead to a lesser offense or to receive a shorter sentence. Defendant rejected an offer of 20 years and was convicted of premeditated first degree murder in which a principal used a firearm to inflict death, and of three counts of attempted premeditated murder on behalf of a criminal street gang. Although defendant hints the resulting sentence was a vindictive response to his rejection of the plea bargain, such a conclusion is baseless. The trial court’s discretion was severely limited; it sentenced him in accordance with statutorily prescribed terms. (§§ 186.22, subd. (b)(5), 190, subd. (a), 664, subd. (a); 12022.53, subds. (d) & (e).)
“The choice of fitting and proper penalty is not an exact science but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will. In some cases, leeway for experimentation may be permissible. Thus, the judiciary should not interfere in the process unless a statute prescribes a penalty ‘“out of all proportion to the offense.”’ [Citation.]” (People v. Cooper (1996) 43 Cal.App.4th 815, 827, quoting In re Lynch, supra, 8 Cal.3d at pp. 423-424.) Here, the statutory punishment is not grossly disproportionate in light of the nature of the offense and the nature of the offender.
In sum, the sentence does not shock the conscience and is not disproportionate under California law.
Defendant fares no better under federal law. The Eighth Amendment to the United States Constitution, which forbids cruel and unusual punishments, “‘does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are “grossly disproportionate” to the crime .’” (Ewing v. California (2003) 538 U.S. 11, 23 [155 L.Ed.2d 108, 119], quoting conc. opn. of Kennedy, J. in Harmelin v. Michigan (1991)501 U.S. 957, 1001 [115 L.Ed.2d 836, 869].) “[T]he gross disproportionality principle [is] applicable only in the ‘exceedingly rare’ and ‘extreme’ case. [Citations.]” (Lockyer v. Andrade (2003) 538 U.S. 63, 73 [155 L.Ed.2d 144, 156].)
As discussed in connection with the California constitutional claim, defendant’s sentence is not grossly disproportionate to the crime. (See, e.g., Harmelin v. Michigan, supra, 501 U.S. 957 [115 L.Ed.2d 836] [upholding sentence of life without the possibility of parole for possession of a large amount of drugs by a first-time felon]; Rummel v. Estelle (1980) 445 U.S. 263 [63 L.Ed.2d 382], [upholding a life sentence for a recidivist thief].) Therefore, his Eighth Amendment claim fails.
DISPOSITION
The judgment is modified to impose the middle term of two years for the count 5 conviction (participation in a criminal street gang) and the count 7 conviction (unlawful possession of a loaded firearm) and by striking the enhancements of 15 years to life on the three attempted murder counts, and replacing them with a 15-year minimum parole eligibility date (§ 186.22, subd. (b)(5)). As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect these modifications and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SIMS, J., ROBIE, J.