Opinion
A137765
01-20-2017
THE PEOPLE, Plaintiff and Respondent, v. CARLOS RONTEZ FRANCIS, Jr., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 051011394)
Carlos Francis (appellant) appeals from a judgment entered after a jury convicted him of attempted murder of Robert Boyd III (Pen. Code, §§ 187, 664, count 1), attempted murder of Shelnika Jackson (count 2), shooting at an occupied motor vehicle (§ 246, count 3), and active participation in a criminal street gang (§ 186.22, subd. (a), count 7), and the trial court sentenced him to 35 years to life in prison. He contends: (1) there was insufficient evidence to support his conviction on count 7; (2) the trial court erred in instructing the jury with CALJIC No. 6.50; (3) his eight-month prison term on count 7 should have been stayed under section 654; and (4) the court's "questionable 'kill zone' instruction coupled with the prosecutor's . . . closing argument rendered the verdict on count 2 [attempted murder of Jackson] inherently unreliable." We agree the court should have stayed the prison term on count 7. We reject the remaining contentions and affirm the judgment in all other respects.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
An information filed September 19, 2012, charged appellant and his codefendant, Markeith Miles, with multiple crimes arising out of gunshot attacks committed on April 5 and May 27, 2010. Counts 1 through 3 and count 7 related to an attack on Boyd and Jackson, and counts 4 through 6 related to an attack on Kamari Ridgle. The following charges were made against each of the defendants: attempted murder of Boyd (§§ 187, 664, count 1); attempted murder of Jackson (§§ 187, 664, count 2); shooting at an occupied motor vehicle (§ 246, count 3); attempted murder of Ridgle (§§ 187, 664, count 4); shooting from a motor vehicle (§ 12304, subd. (c), count 5); shooting at an inhabited dwelling (§ 246, count 6); and active participation in a criminal street gang (§ 186.22, subd. (a), count 7). The information alleged enhancements for great bodily injury (§ 12022.7, subd. (a)), firearm use (§ 12022.53, subds. (c), (d), & (e)(1)) and commission for the benefit of a street gang (§ 186.22, subd. (b)) as to counts 1 through 6. A. The Prosecution Case
1. Counts 1, 2, 3, 7 - The Shootings of Boyd and Jackson
Because the jury did not reach a verdict on counts 4, 5 and 6 relating to the shooting of Ridgle and a mistrial was declared as to those counts, we discuss only the facts and procedures relating to the shooting of Boyd and Jackson.
Boyd and Jackson have known each other since elementary school. On April 5, 2010, the date of the incident, Jackson was pregnant with Boyd's child. At about 10:45 a.m. that day, Boyd drove a white Nissan Maxima to Jackson's house in Richmond and picked her up to take her to a pregnancy class. Boyd and Jackson first drove to Jackson's aunt's house to retrieve some medical documents, but the two began to argue. Instead of going inside the aunt's house or to the medical center, they decided to return to Jackson's house. While driving back, Boyd stopped at a stop sign on Fordham Street and noticed a truck pulling alongside him in the lane of oncoming traffic. The two side windows of the truck were down, and appellant was in the front passenger seat and Miles was in the rear passenger seat. Boyd knew both appellant and Miles because years earlier, Boyd's younger brother had played baseball with appellant; Boyd had also played baseball with Miles's brother.
Boyd did not get a good view of the truck's driver but noticed appellant was holding a black gun. He then heard gunshots and the shattering of his car window before he lost consciousness. Boyd identified appellant and Miles from six-pack photographs shown to him by police. At trial, he refused to identify appellant or Miles in the courtroom but identified their photographs. Regarding Miles, Boyd testified, "I didn't see no gun in the back seat like in front." Jackson suffered a gunshot wound to her leg. She testified that just before she heard multiple gunshots, Boyd leaned over, said, "damn," and pushed her down. She was hysterical and scared after the shots were fired and the truck left, but she tried to lift Boyd out of the driver's seat so that she could drive him. She was unable to do so because she could not move her leg.
Fifteen-year-old Matthew Ostrander was inside his house on Fordham Street at the time of the shooting. He rushed to the front window when he heard a series of gunshots outside and saw Boyd's car rolling into a fence and a gray or silver truck speeding southbound on Fordham Street toward Interstate 80. He saw a short-haired Black man in the driver's seat of the truck and another short-haired Black man in the front passenger seat; he could not describe them more specifically at trial.
Both appellant and Miles are Black.
Police officers soon arrived at the scene. Boyd was "slumped over the center console" and "bleeding out," with apparent gunshot wounds to the temple and neck. Jackson had a gunshot wound on her right shin and was hysterically screaming and yelling, with blood all over her hands and lap. Although it was difficult for the officer to understand what she was saying, he believed she said the shooter's vehicle might have been a white Chevy pickup truck and that it went south, toward the freeway.
Officers who examined the crime scene saw two pools of shattered glass in the street where Boyd's Nissan would have stopped for the stop sign. They also found eight expended .40-caliber shell casings on the ground nearby. Later analysis showed that each of the shell casings had been fired from the same .40-caliber semiautomatic Glock pistol. There were seven or eight bullet holes in the Nissan, and the angles of "trajectory sticks" inserted into the holes strongly suggested the shots had been fired from a car that had passed the Nissan on the left. Three of the shots appeared to have been fired when the shooter's car was slightly behind or abreast of the Nissan; two or three shots were fired when the two cars were abreast of each other; and three shots were fired when the shooter's car was slightly ahead of the Nissan. There was no firearm found in the Nissan.
A gunshot recording device located about a mile from the crime scene recorded the shots as having been fired in rapid succession at 11:06 a.m., with four shots being recorded within 1.1 seconds. It was possible there were more than four shots because the sounds of some shots might have been muffled or absorbed after the two windows of the Nissan were shattered.
On April 9, 2010, appellant's mother, Arkueria Davis, went to the Richmond police station and told officer Robert Aiavao she was frightened because appellant had been receiving threatening phone calls. Davis said appellant was a member of the Deep C street gang, and that Boyd's brothers and other North Richmond gang members had been publicly saying appellant had been involved in the shooting. Appellant had warned Davis to be careful because anonymous callers had said to him, "[W]e know where your momma works." At trial, Davis denied ever saying that appellant was a member of the Deep C gang; Aiavao testified he distinctly remembered that statement.
Boyd lay in an induced coma for an extended period, and his recovery was slow and difficult. He had substantial mental impairments for several months, and he often found it difficult to remember and speak about the shooting. On or about June 28, 2010, Boyd went to the police station with former girlfriend Pashuan Hughes to retrieve his property that had been left in the Nissan. A police officer questioned Boyd about the shooting, but he was initially reluctant to talk. At Hughes's urging, Boyd eventually described the shooting in much the same terms as his trial testimony (summarized above). A videotape of the interview was played for the jury.
Appellant was arrested in Richmond on June 30, 2010. He was handcuffed and placed in the rear seat of police officer Mitch Peixoto's patrol car. Another officer pat-searched appellant but did not feel a firearm. During the drive to the police station, Peixoto noticed appellant moving around until he was almost crouching on the floor. Peixoto heard a thud; he stopped the car and checked the rear seat and saw a semiautomatic handgun on the floor. Appellant said, "That was already here." Peixoto knew the interior of the car had been empty when appellant was placed inside, and had even told appellant that the back seat area had already been searched and that ". . . whatever you drop is going to be on you." The gun was a loaded .40-caliber Glock and had traces of appellant's DNA on it. There was a round in the chamber and other unfired rounds in the magazine. The parties stipulated that the .40-caliber casings found at the scene of the shooting of Boyd and Jackson were not fired from the Glock pistol found in Peixoto's car.
Records for cell phones registered to appellant and Miles showed that two brief phone calls had been made between their phones shortly after 10:00 a.m. on April 5, 2010. Subsequent calls that were made and received by both phones over the next hour and a half were transmitted by the same cell towers, indicating the two phones were in the same area. There was also a 10-minute call made from Miles's phone to a phone registered to his cousin, Chynna Wisdom, at about 10:30 a.m. Another call was received, but not answered, on Miles's phone at 11:06 a.m., i.e., the time of the shooting according to the shot recording device. Both of those calls were transmitted to Miles's phone from a cell tower about half a mile from the crime scene.
Calls made by appellant and Miles over the next half hour were transmitted from a series of cell towers in the same areas, starting in the area of the crime scene and moving to Albany, then back to the area of the Barrett Apartments in Richmond. Calls were later made and received on appellant's phone in areas along Interstate 80. Around 8:30 p.m. a text message was sent from appellant's home to Wisdom, stating, "K, check to see if he's dead for me." Wisdom responded, "Man, okay, Los [appellant's nickname], cuz." Appellant replied, "Yea U could NC if he dead 4 me K."
2. Appellant's Prior Crimes
At about 11:26 p.m. on April 19, 2008, police officer Todd Kaiser was patrolling central Richmond in a marked police car when he saw two young Black men riding bicycles without lights. Both men were wearing Cincinnati Reds baseball caps, a common symbol of the Central Richmond street gang. Kaiser tried to stop them but the men rode away, crashed their bikes, and fled on foot in different directions. Kaiser got out of his car and chased one of the men, later identified as appellant. At one point, appellant stopped and pulled a handgun from his waistband and looked at Kaiser. When Kaiser drew his gun, appellant dropped his gun and resumed running. Kaiser eventually caught and arrested appellant and retrieved the gun that appellant had dropped; he saw that it was loaded. Appellant suffered a juvenile adjudication for being minor in possession of a firearm and for being an active participant in the Deep C gang.
On July 10, 2006, Richmond police officers conducted a "sting" operation by leaving an unlocked car on the street with its keys nearby. Undercover officers surveilled the car and saw appellant get into it and drive away. After a short chase, the car crashed, and appellant got out of the car and ran. The officers pursued appellant, who removed a gun from his waistband and threw it onto the roof of the Barrett Apartments. The officers apprehended appellant and retrieved the gun. Appellant suffered juvenile adjudications for receiving stolen property and being a minor in possession of a firearm.
3. Evidence of Gang Affiliation
Several Richmond police officers testified as gang experts. They explained the nature and activities of street gangs in Richmond, describing the gangs' initiation rites and symbols, their codes of loyalty, their strict prohibitions against snitching, and their criminal activities conducted to raise money and instill fear in the community. The experts testified that the Easter Hill Boys (EHB) is affiliated with the North Richmond gang, while Deep C is an offshoot of the Central Richmond gang. A cycle of violence between Deep C and North Richmond began with a car crash between two members of the gangs in 2003, and escalated in 2006 when an EHB member was shot to death. One of the gang experts estimated he had investigated between 200 and 300 retaliatory shootings between the EHB and Deep C gangs. The experts also summarized a number of predicate offenses committed by Deep C members.
The prosecutor presented extensive evidence that appellant and Miles were members of the Deep C gang and that Boyd was a member of the EHB gang. The evidence showing appellant and Miles to be Deep C gang members included: (1) photos and videos showing appellant and Miles and other known gang members singing rap songs and making violent gestures and gang hand signs; (2) tattoos on each of their bodies expressing sympathy for murdered Deep C members; (3) juvenile hall intake forms showing that appellant had self-identified as a Deep C member when he was committed for various juvenile crimes between 2007 and 2009; (4) appellant's prior gang-related crimes; and (5) a text message Miles sent publicly disrespecting Joe Blacknell, a prominent South Side street gang member. The experts also noted that appellant and Miles had both lived in the Barrett Apartments, which is in Deep C territory and is a Deep C stronghold.
In October 2009, Charlia Potts, who had a two-year-old son with Blacknell, received a text message with a photo of her son being held upside down by Miles, who was wearing a hat with "RIP Mac Rio" on it, and "flashing" a gang hand signal. Potts called the police because she was worried; she knew Miles was a member of the Deep C gang, and "Mac Rio" was a former Deep C member who had allegedly been murdered by Blacknell. Potts said it was clear that by sending the text, Miles was showing the "ultimate sign of disrespect" to Blacknell and his gang.
Further, there was evidence that Boyd and his brother, Demario, were was also known members of the EHB gang, and that they had stopped at Jackson's aunt's house—which was known as an EHB "safe house"—just a few minutes before the shooting. A photograph showed Boyd and Demario holding up hand signs; they were proud of being from Easter Hill. The gang experts believed the shootings in this case were committed in furtherance of and for the benefit of the Deep C gang. They testified that gang murders and retaliatory murders are common in Richmond, and that tension between gangs almost always runs high. The experts opined there was no apparent reason for the shooting of Boyd and Jackson other than gang hostility, and that the crime was committed in typical gang style, as a drive by shooting. The murder of a gang rival, or a family member of a rival, is the "ultimate" means of gaining power and respect within a gang. The experts also testified that all occupants of a drive by shooter's vehicle, and particularly the driver, are fellow gang members of the shooter. B. Appellant's Defense
Appellant took the stand and denied any involvement in either crime. He said he had once been best friends with Boyd's younger brother, Lamont, and had no reason to dislike Boyd. He said Miles had issues with Boyd because Boyd had previously robbed Miles. Appellant lived in the Barrett Apartments and sometimes "hung out" with people from that neighborhood, but he was not a gang member. He sometimes committed crimes and made gang hand signs in videos, but he did such things for "fun." Appellant had tattoos on his hands reading "RIP Puma" and "RIP Rio," but he merely intended to honor deceased friends.
Appellant thought he and Miles might have been together on the morning of April 5, 2010, but said he was not at the site of Boyd's shooting. Appellant also acknowledged he drove to Sacramento later that day but said he went there "to see a girl." Appellant sent Wisdom the text asking her to "see if he dead for me" because he learned from Miles or Wisdom that Boyd had been shot, and was curious if Boyd had survived. Appellant then learned that some people in Richmond, including members of the EHB gang, thought he had shot Boyd. Appellant warned his mother to be careful because he knew gang members often commit retaliatory murders. He acknowledged he had a gun when he was arrested and that he had lied to Peixoto when he said it was not his.
On cross-examination, appellant acknowledged he had committed crimes and lied to the police on several occasions. He admitted he sometimes wears a Cincinnati Reds baseball cap, but only because the colors of the cap match his red and black "Jordan" shoes. The prosecutor asked appellant about a conversation he had had in a courthouse holding cell with Miles while awaiting their preliminary hearing. The holding cell had a hidden recording device, and the conversation seemed to focus on the defendants' cell phone records for the time of the shooting at Boyd and Jackson. The prosecutor noted that appellant had made a reference to a period in which he and Boyd had been "with Rob." Appellant said he did not remember making any such reference, so the prosecutor played the following portion of the conversation for the jury: FRANCIS: I ain't—nigga, I didn't do nothing. The cell phone records don't match. Nothing—nothing match as of now. MILES: Yeah. FRANCIS: They try to match our shot like on Rob— nothing. They don't got your shit. Right now, nothing match. [¶] Nothing match. Nobody called us when—when we was with Rob. That's how they match it when your phone ring and shit. Nobody called us. Nothing matches. And they don't got your number. MILES: They do. FRANCIS: From that old time? MILES: I don't remember when I changed it. FRANCIS: They—I don't think they got your number. Cause if they do—they, I know they don't as of right now, they don't got it. MILES: You see my records? FRANCIS: I seen—he got all our records man. MILES: See man, she only be showing me mine cuz.
Appellant acknowledged saying, "Nobody called us when—when we was with Rob," but explained, "Yes, that's what it say, but I don't know if I was thinking it and didn't come out right. But that's what—it say that, but that's not what I meant." He said, "I must have misspoke." The prosecutor pointed out that appellant seemed to have lowered his voice during that portion of the discussion. Appellant said he did not think he had lowered his voice, so the prosecutor replayed that portion. Appellant then acknowledged he had lowered his voice. On redirect examination, appellant said he and Miles were "just trying to compare" the information they had received from their attorneys about their cell phone calls.
A defense investigator who interviewed Jackson testified that Jackson told him Boyd had had great difficulty in regaining his speech and memory in the months after the shooting. At one point, Boyd could not even remember that he and Jackson were the parents of a child, and could not remember the details of how he had been shot.
Two experts testified that a person with brain injuries like Boyd's would have had substantially impaired cognitive functioning, marked by impaired speech and memory. One expert also testified that a "false memory" of an incident can be implanted in a person if he is told that the incident occurred in a certain manner. The defense attorneys argued that Boyd had likely been told after the shooting that appellant and Miles had been involved in the crime, so that he subconsciously created a memory on that basis. C. Miles's Defense
Miles also took the stand and denied involvement in both shootings. He said he lived in the Barrett Apartments and spent time with gang members but was not a gang member himself. He had known and liked Boyd for a long time; he considered Boyd to be family and had no reason to shoot him. Appellant was one of his closest friends.
Miles said that he and appellant had gone to the Hilltop Mall on the morning Boyd was shot, and that Miles had gone home with a girlfriend, Lavonne Young. Miles acknowledged on cross-examination that he did not tell the police, when he was arrested for the attempted murder of Boyd and Jackson, that he had been at the Hilltop Mall or with Young at the time of the crime. Miles admitted he had talked with Young on the phone many times after his arrest, but he never asked her to serve as an alibi witness for him.
Miles also said he had not intended to disrespect Blacknell by holding his son; rather, he was "just playing" with the boy. He acknowledged there were photos and/or videos on his cell phone showing him doing things like "flipping the bird" to EHB members, but he meant no disrespect by those gestures. Miles admitted he and appellant rode bicycles together at night but said he did not know appellant was carrying a gun.
The jury convicted appellant of counts 1, 2, 3, and 7 and found true the great bodily injury and firearm use enhancements as to count 1. The jury found Miles not guilty of counts 1, 2, 3, 5, and 6. The jury could not reach verdicts on count 4 as to both defendants, counts 5 and 6 as to appellant, and count 7 as to Miles; the trial court declared a mistrial on those counts. The court sentenced appellant to an aggregate prison term of 35 years to life—seven years on count 1, plus 25 years to life for the great bodily injury and firearm use enhancements, a consecutive two years and four months for count 2, a stayed sentence on count 3, and a consecutive eight months on count 7.
DISCUSSION
1. Sufficiency of the Evidence - Count 7
Appellant contends there was no substantial evidence to support his conviction on count 7, active participation in a criminal street gang (§ 186.22, subd. (a)) because there was insufficient evidence he fired the gunshots in conjunction with another gang member, as required by People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez). We reject the contention.
The substantial evidence standard of review requires us to examine the record to determine whether there is sufficient evidence for a reasonable jury to have found the defendant guilty beyond a reasonable doubt. (People v. Alexander (2010) 49 Cal.4th 846, 917.) Evidence is substantial if it reasonably inspires confidence and is of credible and solid value. (People v. Raley (1992) 2 Cal.4th 870, 891.) Our assessment is highly deferential to the verdict in that we presume every supporting fact the jury could have reasonably deduced from the evidence. (People v. Albillar (2010) 51 Cal.4th 47, 60.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Dominguez (1995) 38 Cal.App.4th 410, 421.) Thus, a defendant attacking the sufficiency of the evidence "bears an enormous burden" (People v. Sanchez (2003) 113 Cal.App.4th 325, 330), and the judgment must be affirmed unless there is "no hypothesis whatever" to support it (People v. Redmond (1969) 71 Cal.2d 745, 755). As we explain, appellant cannot overcome the burden imposed by this standard.
"The elements of the gang participation offense in section 186.22(a) are: First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (Rodriguez, supra, 55 Cal.4th at p. 1130.) The phrase willful promotion, furtherance, or assistance has been equated with aiding and abetting. (People v. Castenada (2000) 23 Cal.4th 743, 749.) Thus, the third element is satisfied when there is substantial evidence of aiding and abetting the commission of a separate felony offense, regardless of whether the separate offense is gang-related. (Rodriguez, supra, 55 Cal.4th at p. 1131.)
In Rodriguez, supra, 55 Cal.4th 1125, the defendant, a gang member, acted alone in committing a felony when he threatened and tried to rob the victim. The Supreme Court held this act did not violate section 186.22, subdivision (a), whose "plain meaning . . . requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member." (Rodriguez, supra, 55 Cal.4th at p. 1132.) Because the defendant acted alone, he did not violate section 186.22, subdivision (a). (Id. at p. 1139.)
In contrast, here, there was ample evidence appellant committed the attempted murders of Boyd and Jackson with fellow gang members. Boyd testified he saw familiar faces in the truck that pulled up next to him—appellant in the front passenger seat and Miles in the back seat. He did not see who it was, but there was a third person in the truck—the driver. Independent eyewitness Ostrander testified he saw two Black men inside the truck. Cell phone evidence strongly suggested appellant and Miles had been together in the area at the time of the shooting, and that they then drove to Albany together and returned to Richmond within a half hour of the shooting. There was overwhelming evidence that appellant and Miles were members of the Deep C gang.
Appellant argues that the jury's acquittal of Miles on counts 1 to 3 and its not true findings on the gang allegations show the jury must have found Miles was not involved in the shooting in any way. He asserts the evidence was therefore insufficient he committed the crime in conjunction with any other gang member. It is well established, however, that "courts necessarily tolerate, and give effect to all parts of, inconsistent verdicts." (People v. Chun (2009) 45 Cal.4th 1172, 1204; People v. Palmer (2001) 24 Cal.4th 856, 864-865.) " '[I]t is always possible for a jury to exercise lenity and acquit some of the defendants while convicting others who are in fact no more guilty, and when this happens the convicted defendants have no remedy . . . Such incongruities are built into the American system of criminal justice.' " (People v. Palmer, supra, 24 Cal.4th at p. 865; People v. Lewis (2001) 25 Cal.4th 610, 656 ["An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict"].) "The general rule is that acquittal of one codefendant normally will not require acquittal of another." (People v. Howard (1988) 44 Cal.3d 375, 412.) This is true even in a joint prosecution for crime that requires two or more participants, such as conspiracy. (People v. Palmer, supra, 24 Cal.4th at p. 864.) This is because juries have an unreviewable power to acquit for impermissible reasons. (Id. at p. 863.)
As the prosecutor in this case openly acknowledged, Miles's participation in the shootings was relatively minor. Appellant was holding the gun, and forensic evidence strongly suggested only one gun had been used. The jury may have felt reluctant to convict Miles of three serious felonies where there was no evidence he had fired any of the gunshots. Even if the jury's findings of not guilty as to Miles may seem odd given the disposition of the other charges and enhancements, the verdict against appellant is supported by substantial evidence and is therefore valid.
Moreover, even if Miles had not been in the truck at the time of the shooting, it was undisputed appellant was with at least one other passenger and/or driver at the time of the shooting. Gang experts testified that all occupants of a drive by shooter's vehicle, and particularly the driver, are fellow gang members of the shooter. The driver is performing a physically dangerous act and would also be an eyewitness to a murder, so that the shooter would need to know the driver would not "snitch." The driver would also share in the "respect" due to any gang member who participates in the "ultimate" act of gang warfare. The experts further testified about the long history of tension and retaliatory acts between the Richmond gangs, and opined there was no apparent reason for the shooting of Boyd and Jackson—which occurred in typical gang style, as a drive by shooting—other than gang hostility. "It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation." (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1197.) Thus, the experts' testimony also formed a basis for the jury to find the attempted murders were committed by appellant and at least one other fellow gang member. Considering the circumstances as a whole, the jury had ample reason to believe appellant shot Boyd and Jackson in conjunction with Miles and/or another Deep C gang member. Rodriguez, supra, 55 Cal.4th 1125, does not support appellant's position that his conviction on count 7 must be reversed.
2. CALJIC NO. 6.50
Appellant contends the pattern jury instruction for count 7, CALJIC No. 6.50, did not adequately explain the elements of the crime to the jury because it did not include the requirement explained in Rodriguez, supra, 55 Cal.4th 1125 that the defendant must commit a felony in conjunction with at least one other gang member. Because appellant did not object or request a modification, he forfeited his right to challenge the instruction on appeal. (People v. Cleveland (2004) 32 Cal.4th 704, 750.) His contention also fails on the merits.
Appellate review of the adequacy of instructions is based on whether the trial court fully and fairly instructed on the applicable law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) The question is whether there is a reasonable likelihood the jury applied the challenged instruction in an impermissible manner. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, disapproved on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) In determining whether a trial court has erred in its instructions, we assume jurors are intelligent and capable of understanding and correlating all given instructions. (People v. Ramos, supra, 163 Cal.App.4th at p. 1088.)
CALJIC No. 6.50 was given to the jury in its standard form. The first paragraph of the instruction closely tracked the language of section 186.22, subdivision (a), stating: "Every person who actively participates in any criminal street gang with knowledge that the members are engaging in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, is guilty of a violation of Penal Code section 186.22(a), a crime." The next few paragraphs of CALJIC No. 6.50 explained the terms and phrases "pattern of criminal gang activity," "criminal street gang," "primary activities" of gangs, "active participation" of a gang member in a gang, and "felonious criminal conduct."
CALJIC 6.50 was recently amended to provide the trial court with the option of instructing the jury that the defendant must not have acted alone. This amendment does not render the original instruction, whose language tracked the language of section 186.22, subdivision (a), inadequate or improper. (People v. Poggi (1988) 45 Cal.3d 306, 327 ["The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification"].)
The final paragraph of CALJIC No. 6.50 stated: "In order to prove this crime, each of the following elements must be proved: [¶] 1. A person actively participated in a criminal street gang; 2. The members of that gang engaged in or have engaged in a pattern of criminal gang activity; 3. That person knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and 4. That person either directly and actively committed or aided and abetted another or other members of that gang in committing the crime of . . . [a]ttempted [m]urder . . . ."
The first paragraph specified that a defendant must "willfully promote[], further[], or assist[] in any felonious criminal conduct by members of that gang." As noted by the Supreme Court in Rodriguez, supra, 55 Cal.4th at page 1132, "promote" means to contribute to the progress or growth of, "further" means to help the progress of, and "assist" means to give aid or support. They all imply joint action by more than one person. Further, the repeated reference in the instruction to gang "members" (plural) also informed the jury that appellant could not be guilty of the offense if he acted alone. Nothing in the last paragraph or the prosecutor's closing remarks negated or contradicted the requirements of the first paragraph; rather, they were simply a particularization of the earlier general instruction on culpability that a person is guilty of a crime if he "directly and actively commit[s]" the act constituting the crime or aids and abets "the commission of the crime." (CALJIC No. 6.50.) We do not believe there is a reasonable likelihood the jury misunderstood and misapplied the instruction.
Moreover, even assuming that the trial court erred in failing to instruct on the principles set forth in Rodriguez, we conclude any error was harmless under any standard. As noted, there was overwhelming evidence that appellant, a Deep C gang member, shot at Boyd and Jackson in conjunction with at least one other fellow gang member. No evidence or argument was presented that either attack was an individual act. We conclude there was virtually no possibility of a more favorable result in the absence of the error.
3. Section 654
Appellant contends his eight-month prison term for count 7 should have been stayed under section 654. Although appellant did not raise the issue below, we nevertheless consider the claim. (People v. Hester (2000) 22 Cal.4th 290, 295 [unauthorized sentence may be raised for the first time on appeal].) Appellant asserts that count 7 was premised on the shooting of Boyd and Jackson, and that counts 1, 2, and 3—the attempted murders of Boyd and Jackson and shooting at an occupied motor vehicle—were based on the same acts. Although appellant could be convicted of each underlying crime, he could not be sentenced for them all. Based on appellant's discussion of People v. Mesa (2012) 54 Cal.4th 191, 197-198, we agree—and the Attorney General concedes—the eight-month consecutive sentence on count 7 should have been stayed.
4. Jury Instruction — "Kill Zone" Theory
Appellant contends the court's "questionable 'kill zone' instruction coupled with the prosecutor's . . . closing argument . . . rendered the verdict on count 2 [attempted murder of Jackson] inherently unreliable." We conclude there was no prejudicial error.
There is a crucial distinction between the mental states required for a defendant to be convicted of murder and attempted murder: "Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices." (People v. Bland (2002) 28 Cal.4th 313, 327 (Bland).) In contrast, " '[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' " (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) This distinction has created complications in cases where a defendant attacks multiple victims. Under the doctrine of transferred intent, when a defendant fires a gun in an attempt to kill one victim, but the bullet strikes and kills a bystander, the defendant is guilty of murder even if he did not know the bystander was present. (Bland, supra, 28 Cal.4th at pp. 320-321.) However, the doctrine of transferred intent does not apply to attempted murder, where the unintended victim survives the attack. (Id. at pp. 326-331.) This is because "[t]he crime of attempt sanctions what the person intended to do but did not accomplish, not unintended and unaccomplished potential consequences." (Id. at p. 327.) "To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. . . ." (Id. at p. 328.)
Nonetheless, the kill zone theory, first approved by the Supreme Court in Bland, yields a way in which a defendant can be guilty of the attempted murder of victims who were not the defendant's "primary target." (Bland, supra, 28 Cal.4th at p. 330.) In Bland, the defendant and a cohort, who were members of a gang, fired multiple shots at three people in a car, killing the driver, who was a gang member, and injuring the two passengers, who were not gang members. The defendant was convicted of murdering the driver and of attempting to murder the two passengers. The evidence supported a jury finding that the defendants intended to kill the driver, i.e., the one actually killed, but that they had not specifically targeted the two who survived. (Id. at p. 319.) Acknowledging that the doctrine of transferred intent does not apply to attempted murder, the Supreme Court introduced the kill zone theory in holding that a person who shoots at more than one person can "be punished for the actions towards everyone in the group even if that person primarily targeted only one of them." (Id. at p. 329.) The theory of guilt in that situation is not transferred intent, but rather concurrent intent, meaning that " '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.' " (Id. at p. 329.) "[T]he fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within . . . 'the kill zone.' " (Ibid.)
The Bland court provided an example of a situation in which the kill zone theory would be appropriate: "[C]onsider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a 'kill zone' to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A's head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death. The defendant's intent need not be transferred from A to B, because although the defendant's goal was to kill A, his intent to kill B was also direct; it was concurrent with his intent to kill A. Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. (Bland, supra, 28 Cal.4th at p. 330; also citing People v. Vang (2001) 87 Cal.App.4th 554, 563-565 [defendants' conviction for 11 counts of attempted murder upheld where they primarily intended to kill one victim but fired multiple rounds with high-powered, wall-piercing weapons at two houses, injuring 11 occupants] and People v. Gaither (1959) 173 Cal.App.2d 662, 666-667 [defendant mailed poisoned candy to his wife; convictions for administering poison with intent to kill was affirmed as to others who lived at the residence even if they were not the primary target].)
Applying these principles to the facts in its case, the Bland court held that while the prosecutor misstated the law when he argued the attempted murder charges were supported by the doctrine of transferred intent, any error was harmless because the evidence in the case "virtually compelled" a finding that the defendant had concurrently intended to kill both the primary victim and the two passengers in his car. (Id. at pp. 330, 333.) The court explained: "Even if the jury found that defendant primarily wanted to kill [the driver] rather than [the driver's] passengers, it could reasonably also have found a concurrent intent to kill those passengers when defendant and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone. Such a finding fully supports attempted murder convictions as to the passengers." (Bland, supra, 28 Cal.4th at pp. 330-331, 333.)
Similarly, here, even assuming the trial court's instruction coupled with the prosecutor's arguments were misleading, we conclude any error was harmless beyond a reasonable doubt because the evidence of appellant's intent to kill Jackson was overwhelming under the kill zone theory. Appellant, along with fellow gang members, approached Boyd and Jackson and stopped right next to their car before spraying it with seven or eight bullets, from close range. Jackson was sitting right next to Boyd, trapped inside a car, in the line of fire, and suffered a gunshot wound to her leg; she could have easily suffered a mortal wound. (Smith, supra, 37 Cal.4th at p. 743 [evidence the defendant fired a single gunshot into a car driven by a woman whose baby sat in a car seat in the line of fire can support the inference that he acted with the intent to kill both]; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [sufficient evidence to support two attempted murder convictions where the defendant fired a gunshot at two police officers in his direct line of fire].) On this evidence, the jury, which was properly instructed on the elements of attempted murder, including the requirement that he "harbor[] express malice aforethought, namely, a specific intent to kill unlawfully another human being," would almost certainly have found appellant had the specific intent to kill everyone inside the car in order to ensure the death of Boyd, his primary target.
The trial court instructed on the kill zone theory with CALJIC No. 8.66.1: "A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. [This zone of risk is termed the '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 the perpetrator intended to kill the primary victim by killing everyone in that victim's vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as the primary target or as someone within a ['kill zone'] or [zone of risk] is an issue to be decided by you." The prosecutor, as a whole, correctly stated the law, but there were portions that were arguably misleading, e.g., "you don't get away with shooting somebody else who's sitting in close vicinity of anybody else because you don't harbor the specific intent to kill," and "if you want to kill somebody standing in a group of individuals and you open fire, and you don't care who you hit in the execution of the person you're trying to kill, you're responsible for the attempted murder of whoever else happens to be standing there with him."
We note that the instruction's reference to express malice, requiring "a specific intent to kill unlawfully another human being," is stricter than that required in Smith, supra, 37 Cal.4th at page 743, which requires only that the defendant knew to a substantial certainty that his act would result in another person's death. --------
DISPOSITION
Appellant's eight-month consecutive sentence on count 7 shall be stayed, and an amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Siggins, J.