Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles County Superior Court, No. BA174264, George G. Lomeli, Judge.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, J.
A jury convicted Alvaro Jara of one count of drive-by first degree murder, and three counts of attempted murder. The jury found true allegations that the offenses were committed by shooting from a motor vehicle and for the benefit of a criminal street gang. On appeal from the judgment, Jara claims the court committed instructional error by: (1) giving a “kill zone” instruction, (2) failing to instruct on attempted voluntary manslaughter as a lesser included offense of attempted murder, and (3) failing to instruct on second degree drive-by murder. He also contends the abstract of judgment requires correction. Only the final assertion has merit. We affirm, with directions to the trial court to correct the abstract of judgment.
PROCEDURAL BACKGROUND
An information filed on November 30, 2007, charged Jara with one count of murder (count 1), committed by means of discharging a firearm from a motor vehicle (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(21); and three counts of attempted murder (counts 2, 3 and 4), committed with premeditation and deliberation (§§ 664/187, subd. (a).) As to each count, it was alleged that the crime was committed with a firearm, within the meaning of section 12022.53, subdivisions (b)–(d), and for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A).)
All statutory references are to the Penal Code.
Jara was convicted on all counts. A jury found Jara guilty of first degree murder, and found the allegations of special circumstances to be true, and also found true the firearm and street gang allegations. Jara’s motion for new trial was denied.
On count 1, Jara was sentenced to state prison for life without possibility of parole, plus 25 years to life for use of a firearm. As to counts 2, 3 and 4, the trial court imposed sentences of 15 years to life, plus 25 years to life for use of a firearm. The sentences for counts 2 through 4 were ordered served consecutively to count 1 and to each other. The court imposed various fines and fees, and awarded custody credits.
FACTUAL BACKGROUND
The case involves a shooting in August 1998 that resulted in the death of a 12-year-old boy, Steven Morales. He died from a gunshot wound to his head. A few days after the shooting, Jara fled to Mexico. Jara remained in Mexico until May 2007, when he was extradited, brought back to California and charged in this action.
On August 29, 1998, at about 6:15 p.m., Steven was playing in the street with six or seven friends, including 10-year-old Joshua S., and Joshua’s younger brother. They were playing on Avenue 58, a dead end, near its intersection with Benner Street. Several older people were hanging out too, “all mixed up with” the children, or standing within five feet of where they were playing. The adults included an older man (“Big Daddy”) and three members of the “Avenues” street gang, Richard Ramirez (“Tokey”), Daniel Maldonado (“Dreamer”), and Joaquin Gonzales (“Turtle”). A dark pickup truck drove up. It stopped about a quarter of a block away from the group. The truck, occupied only by a male Hispanic driver, parked at an angle near an apartment complex. According to Joshua, either Ramirez or Gonzales walked toward the truck “throwing gang signs at it.” In response, the driver “threw up” the sign of “wherever he was from, ” and the Avenues gang members on the sidewalk gestured for him to “come over.” None of the gang members on Avenue 58 had a gun at the time.
At that point, the driver pulled out a gun and began shooting in the direction of Joshua and his friends. Joshua and his brother ran off. When he looked back, Joshua saw Steven lying on the ground. He had been shot. At trial, Joshua recalled hearing two shots fired.
At the same time the boys were playing, Mauricio Sandoval and his wife were walking along Benner Street. They approached a dark blue pickup truck stopped on Benner, near the intersection of Avenue 58. Sandoval, who was two to three meters away and could see into the cab, saw a male Hispanic driver (the only person in the truck), whom he later identified as Jara, with a weapon laid across his lap. The driver was looking down Avenue 58, where Sandoval saw some men and some children, and appeared to be waiting for something. Sandoval became afraid and sped up. Sandoval saw the men on the street make what appeared to be gang signs at the driver. The driver stuck his hand outside the truck’s cab, and began firing shots at the men on the street. Sandoval heard four or five shots fired, “one after the other.” After he stopped shooting, the driver immediately drove away. Sandoval testified that the police showed him many photographs of different people.
The three gang members who had been near Steven on the street just before he was shot were called to testify. Maldonado (Dreamer) was 17 years old at the time of the shooting, and a member of the Avenues gang. He knew Turtle and Tokey, who also belonged to the Avenues gang. The Avenues gang fought often with and was an enemy of the “Dogtown” gang.
On the evening of August 29, 1998, Maldonado was hanging out on the side of some apartments, drinking with his friend “Big Daddy.” Turtle was in the back of the apartments, Tokey was in front, and some little kids were playing football on Avenue 58. At trial, Maldonado testified that he heard two shots, went out front and saw Steven on the ground. He did not see who shot Steven, and did not see a car. Maldonado said he did not make gang signs at anyone that day, and had not seen anyone else do so either. He denied having told Tokey the shooter was “Largo, ” a member of the “Dogtown” gang.
At the time of trial, Gonzales was in state prison on an unrelated matter. He testified that in August 1998, he was associated with the Avenues street gang and had heard of Tokey, but had never met him or Dreamer. He claimed that at the time of the shooting, he was in a driveway on the side of an apartment building on Avenue 58, walking toward the back of the building. He said he never heard any gunshots, but did see Steven fall down when he ran out front. A video of Gonzales’s August 29, 1998 police interview was played for the jury. During that interview Gonzales told the police he heard “about three” shots. He headed out front, heard a bullet “bing, ” and then saw a little boy, who had been standing in front of a driveway at the sidewalk, fall to the ground. He saw a blue truck drive away. He recognized the truck and knew from a previous encounter that it belonged to a member of the Dogtown gang. Gonzales denied telling the police he heard any shots. He also denied that he had seen a truck drive away, denied that he had recognized the truck, and denied that he had known to whom the truck belonged.
When Ramirez was called to testify he refused to answer any questions. He insisted on asserting his Fifth Amendment privilege, even after the court informed him that, as a victim of the crimes alleged, he had no basis to claim the privilege or to refuse to be questioned. Ramirez understood he had no right to refuse to be questioned, and chose to be and was held in contempt. Ramirez was declared an unavailable witness.
Counts 2 through 4 respectively charged Jara’s attempted murder of Ramirez, Maldonado and Gonzales.
A video of a September 1, 1998 police interview of Ramirez was played for the jury. At the outset of that interview, Ramirez asked the detective “[I]s anybody gonna know, like, like, like the... like-?” The detective told him, “Nobody knows you’re here....” Later, Ramirez told the officers: “I know I could probably get killed for this, but he... shouldn’t have done it” (referring to the shooter having shot the child).
In the interview, Ramirez told detectives that just before the shooting, he was hanging out in the driveway in front of Big Daddy’s apartment. Turtle, Dreamer, Big Daddy and a woman were there too; the adults were “all mixed up” with a bunch (about seven or eight) of little kids. Ramirez said he had been standing “right there where... [Steven] was”; “[e]verybody was right there” in the driveway. A dark blue pickup truck with one occupant drove up on Benner, and stopped. The kids were “right there in the driveway. [The shooter] saw ‘em.... He can’t say he didn’t see them....” “[E]verybody” in the street was “scoping it out.” The driver did not say anything. He just waved his hands in Ramirez’s direction, gesturing for him to “come in.”
Ramirez heard two shots fired, and saw Steven fall to the ground. After the shooting, Maldonado (who, like the other two gang members had been drinking, and who had not been paying attention), asked Ramirez what kind of truck it was. When Ramirez said it was a dark blue truck, Maldonado replied, “That’s Largo! That’s Largo!” Ramirez had seen the same truck a few months before at a grocery store. The driver had “thr[own] a ‘D’” at Ramirez, indicating he and his two passengers belonged to the Dogtown gang. The shooter looked like the person who was driving the truck Ramirez saw at the store. Ramirez was told the truck belonged to Largo. Ramirez knew who Largo was, as the result of a previous incident during which Jara had driven by Ramirez (in his father’s burgundy Toyota 4Runner), and shouted out his name and gang affiliation. Ramirez was shown a “mug book” of members of the Dogtown gang. He did not make a positive identification but, when he got to Jara’s photograph, he said “that looks like him [the shooter]. It looks so much like him.... ”
Manuel Guevara was an acquaintance of Jara’s and Jara’s family. In mid-August 1998, Guevara wanted to buy Jara’s truck, but he only had $1,000. Jara wanted $2,000 for the truck, and refused to accept Guevara’s offer of one payment of $1,000, and two more payments of $500 each.
On August 29, 1998, Jara called Guevara and said he wanted to sell him the pickup. Jara said he “[had] to leave, [because he had] a problem, ” and would take $1,000 for the truck. But Guevara only had $900. Jara took that money, and told Guevara to pay the remaining $100 to Jara’s father. When Guevara made the $100 payment, Jara’s father asked him to backdate the pink slip to August 25 as the date of sale. Guevara used the truck for a few days until he saw a television report that the police were searching for Jara, and heard a description of the truck he had purchased from Jara. Guevara turned the truck over to the police.
A police detective testified that Jara was a member of the Dogtown gang in 1998, who sometimes drove his father’s red Toyota 4Runner.
Maria V. testified that her daughter, Sheila, was Jara’s girlfriend in August 1998. Jara, who was known as “Largo, ” was a member of the Dogtown gang. Sheila disappeared on September 2, 1998. She took a suitcase and some money, and left a note. Maria did not see Sheila again for two years.
Sheila V. was 14 years old in August 1998. Jara was her boyfriend at that time. His moniker was Largo; he was a member of the Dogtown gang. He drove a blue pickup. On August 29, 1998, Jara came over to Sheila’s house. He was “[v]ery nervous and shaky.” He told Sheila and her family that members of his gang had shot members of another gang, and there would be a “green light” on his gang. The next day, Sheila and Jara saw a report on the news that a 12-year-old boy had been shot. The reporter said the police were looking for a suspect with a blue truck.
The next day Jara told Sheila he was going to his parents’ ranch in Mexico, and asked her to go with him. She declined, but later agreed after he said they would be back in a week or two. Sheila and Jara took a bus to Mexico. When they arrived in Mexico, they were unable to travel any further because a bridge had collapsed due to heavy rain. Jara became very nervous, believing someone was following him, and told Sheila they had to get on a plane and fly out. When she asked him why, he said, “Remember the news that we saw on Sunday?... Well, that was me... and that’s the reason why I’m... nervous.” He told her that members of another gang threw signs at him, and he thought one of them was pulling a gun. So, Jara “didn’t think twice” and fired the first shot. He fired twice. The first bullet hit the gang member’s leg and he fell; the second one ricocheted off the ground and hit the boy. He buried the gun, and sold his truck to a friend. Jara told Sheila she would never see her parents or return to the United States again.
There is no evidence anyone other than Steven was hit by any shot, and no evidence that the bullet that killed Steven did so after ricocheting off the ground. The only evidence offered was the parties’ stipulation that Steven was killed by a single shot to the head.
In early September 1998, the police learned Jara was in Mexico. They were unable, however, to extradite him because the United States and Mexico did not have an extradition treaty in place.
Jara and Sheila lived in Mexico for two years. They lived a very primitive lifestyle, in a remote area. Sheila wanted to leave because Jara was very violent with her-he beat and shot at her-and used drugs. But Jara threatened to kill Sheila if she tried to go, and said he had told his family members, who were all around the area, to kill her if she tried to escape. After about two years, Jara finally agreed to let Sheila visit her relatives in Guadalajara. Coincidentally, when Sheila and Jara went to her grandmother’s house, Sheila’s parents were visiting at the same time. Sheila did not leave then with her family, but a few weeks later an aunt and her parents were able to arrange Sheila’s escape from Mexico. Sheila returned to California in December 2000. When she returned, Sheila lied to the police about Jara’s whereabouts in Mexico. Her parents told her not to say anything; they were afraid and so was Sheila.
An LAPD detective testified as a gang expert. He testified about the turf boundaries of the Dogtown and Avenues gangs, and gang territoriality. The Avenues gang’s turf included Ave 58, near Benner. In 1998, the Avenues gang was a rival of the Dogtown gang. The expert testified that the Dogtown gang engaged a pattern of criminal activity, including murder, attempted murder, carjacking, robbery and drug sales. One member of the Dogtown gang was convicted of murder in 1995, and another of robbery in 1997. The detective was familiar with Jara, who went by the moniker “Largo, and who had admitted to police that he was an active member of the Dogtown gang in 1998. The expert also opined that if a gang member from the Dogtown gang drove into Avenues territory, and pointed a gun and fired at a group of members of the Avenues gang, such conduct would be undertaken for the benefit of the Dogtown gang. The act would give the Dogtown gang bragging rights and prestige, especially because Avenues gang members were known to be violent.
In 2006, the LAPD was notified Jara had been arrested in Mexico and was facing extradition under a recently enacted treaty. He was returned to the United States in May 2007.
Jara’s father testified that he regularly visited his extended family in Mexico. He saw Jara and Sheila during those visits, and they appeared to be a happy couple. He never saw any sign that Sheila had been beaten or abused.
An occasional resident of a ranch in Mexico neighboring the one owned by Jara’s father also testified. The neighbor said he had seen Sheila many times, and had never seen any sign she had been mistreated, or was unhappy or afraid. Sheila testified she had never seen the neighbor before he testified.
DISCUSSION
Jara contends the trial court erred by: (1) instructing the jury on the “kill zone” theory, (2) failing to instruct on attempted voluntary manslaughter as a lesser included offense of counts 2 through 4, and (3) failing to instruct that a drive-by shooting could constitute second degree murder. Jara also maintains the abstract of judgment must be modified.
1. The “kill zone” instruction was harmless
Jara insists the trial court prejudicially erred by instructing the jury on a “kill zone” theory in connection with the attempted murders charged in counts 2 through 4, because there was insufficient evidence that his actions created a “kill zone” as that term has been interpreted by case law. Jara argues as follows: “By giving the ‘kill zone’ instruction, the court provided the jury with a theory on which to base a guilty verdict. It was a theory, however, which was not supported by the facts.” While we do not determine whether the “kill zone” instruction was error, we recognize that if we assume for the purpose of this analysis that the instruction was erroneously given, Jara was not prejudiced by the instruction. The evidence that Jara was attempting to murder Ramirez, Maldonado, and Gonzales was overwhelming.
Specifically, the jury was instructed that: “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 a primary target or as someone within the ‘kill zone’ is an issue to be decided by you.”
In People v. Flood (1998) 18 Cal.4th 470, the California Supreme Court emphasized that “instructional errors that have the effect of removing an element of a crime from the jury’s consideration encompass a broad spectrum of circumstances and may be assessed in the context of the evidence presented and other circumstances of the trial to determine whether the error was prejudicial.” (Id. at p. 489.) Thus, we review such ostensible instructional errors to determine whether there is a “reasonable probability that the outcome of defendant’s trial would have been different” had the challenged instruction not been given. (Id. at p. 490.)
We conclude that, here the outcome would have been the same without the “kill zone” instruction.
The evidence at trial reflects that Jara drove into Avenues gang turf and stopped his truck within a quarter of a block from where at least three rival gang members and others were gathered on a street and sidewalk. According to Joshua’s account, which the jury apparently believed, the gang members were intermingled with the children. At least one gang member was standing “right there where... the little boy [who was killed] was standing.” The others stood about five feet away from where seven or eight children played. After one of the Avenues gang members (Ramirez or Gonzales) made signs or gestures at Jara, Jara also made a gang sign; then, he stuck the gun that lay waiting in his lap out of the window, and fired as many as five shots directly at the group.
Jara insists that the “great weight” of evidence shows he “most likely” fired only two shots. He is mistaken. The evidence that just two or three shots were fired came from Ramirez, Maldonado and Gonzales (all of whom had been drinking at the time of the incident, and none of whom was cooperative at trial), Joshua S. (who was 10 years old when the shooting occurred), and Jara (who had an incentive to lie). Equally, arguably more, “weighty” evidence was admitted that as many as five shots were fired, based on the testimony of Sandoval, an independent percipient witness with no obvious reason to lie. The jury was entitled to believe only Sandoval. (See CALJIC No. 2.27 [the testimony of a single witness is sufficient to prove a fact].)
Further, Sheila V., Jara’s girlfriend, testified that on the night of August 29, 1998 she had seen Jara. He looked “very nervous and shaky and-I don’t know. He just looked really weird.” Jara specifically told Sheila that he was “nervous and shaky because, umm, one of the gang members of his gang had shot some other gang members and they were in big trouble.”
In brief, Jara’s going to rival gang territory, his initiating the shooting after the rival gang members threw gang signs, and Jara’s own characterization of the shooting that evening as a shooting of “other gang” members established beyond a reasonable doubt that Jara was in fact targeting the members of the “Avenues” gang at the scene-Ramiro, Maldonado, and Gonzales. There was no testimony that any other gang members or gang associates were at the scene. Further, in 1998, the Dogtown and Avenues gangs were “heated rivals” actively engaged in a gang war. That gang war fomented “back and forth assaults, ranging from simple assaults to murder.”
Whether or not giving the “kill zone” instruction was improper, the evidence that Jara intended to kill the rival gang members was overwhelming. Thus, he was not prejudiced by the instruction.
For the same reasons, we conclude that the “kill zone” instruction, if error, did not violate Jara’s federal constitutional right to due process. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] [“before a federal constitutional error can be harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”].) We conclude that beyond a reasonable doubt that the “kill zone” instruction did not contribute to the jury’s verdict in this case. Even without the “kill zone” instruction, the jury’s verdict would have been the same.
Appellant appears to invoke a federal due process claim at page 31 of his opening brief.
2. Instructions on attempted voluntary manslaughter as a lesser included offense of attempted murder were not warranted
Jara contends the trial court erred by failing sua sponte to instruct the jury on attempted voluntary manslaughter as a lesser included offense of attempted murder. He argues he was entitled to such instruction because the evidence supported it on the basis of imperfect self-defense. This claim is meritless.
A trial court has a sua sponte duty to instruct on all lesser included offenses which find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148–149, 162.) “Substantial evidence” is evidence from which a jury could reasonably conclude that the lesser offense, but not the greater, was committed. (People v. Flannel (1979) 25 Cal.3d 668, 684, overruled on other grounds by In re Christian S. (1994) 7 Cal.4th 768, 777.) Attempted voluntary manslaughter is a lesser included offense of attempted murder. (People v. Manriquez (2005) 37 Cal.4th 547, 583.) Attempted voluntary manslaughter, like attempted murder, requires proof of the intent to kill. (People v. Montes (2003) 112 Cal.App.4th 1543, 1546–1552.) However, unlike attempted murder, it does not require proof of malice. (Id. at p. 1548.) The element of malice is presumptively negated by a sudden quarrel, heat of passion, or when a defendant attempts to kill in an “unreasonable, but good faith, belief that deadly force is necessary in self-defense.” (People v. Manriquez, supra, 37 Cal.4th at p. 583.)
“Sudden quarrel or heat of passion, ” negating malice requires that the perpetrator’s reason be obscured as the result of a strong passion aroused by a provocation sufficient to cause a person of average disposition to act rashly, without deliberation or reflection, driven by passion not judgment. No specific type of provocation is required, and the passion aroused can be any violent, intense, high-wrought or enthusiastic emotion other than revenge. (People v. Lasko (2000) 23 Cal.4th 101, 108.) “[S]uch provocation ‘must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment.’” (People v. Manriquez, supra, 37 Cal.4th at pp. 585–586.) The defendant must “actually both possess and act upon the required state of mind.” (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016.) Manriquez found this standard unsatisfied where the evidence showed the victim “called defendant a ‘mother fucker’ and... taunted defendant, repeatedly asserting that if defendant had a weapon, he should take it out and use it. Such declarations... plainly were insufficient to cause an average person to become so inflamed as to lose reason and judgment.” (People v. Manriquez, supra, 37 Cal.4th at p. 586.) This case is hardly different. Jara’s attempted voluntary manslaughter claim is premised entirely on self-serving statements made to a former girlfriend to explain his sudden flight from the United States, which the jury rejected as not credible. It is not our function to second-guess the jury and reach a contrary conclusion. (People v. Culver (1973) 10 Cal.3d 542, 548 [appellate court does not reweigh evidence; it must draw inferences in support of the verdict that can reasonably be deduced from the evidence].)
There is insufficient evidence here that the attempted murders occurred upon a sudden quarrel or heat of passion. To the contrary, the evidence suggests Jara’s conduct was deliberate; he went looking for trouble. He purposefully entered the turf of a rival gang with whom his own gang was engaged in an “active gang war.” He stopped his car and faced down several gang members, waiting with a loaded gun at the ready. This evidence undercuts any argument that the shootings resulted from a sudden quarrel or an imperfect act of self-defense. There was nothing sudden or provoked about Jara’s “quarrel” with rival gang members.
Nor does the fact that at least one member of the Avenues gang made gang signs at Jara, after he entered their turf, provide sufficient evidence for an attempted voluntary manslaughter instruction. Such conduct, standing alone, particularly when precipitated or invited by Jara himself, is not the sort of conduct that should have caused a defendant to be aroused and also “would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.” (People v. Manriquez, supra, 37 Cal.4th at pp. 583–584.) “The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.” (CALJIC No. 5.55.)
Moreover, as noted by respondent, by finding that the attempted murders were committed willfully, deliberately and with premeditation, in accordance with CALJIC No. 8.67, the jury necessarily rejected Jara’s claim that he acted without “think[ing] twice, ” and shot at the group of rival gang members in unreasonable self-defense. No attempted voluntary manslaughter instruction was required.
3. The trial court did not err by failing to instruct on second degree drive-by murder
Jara next contends the trial court erred by failing to instruct the jury sua sponte on second degree drive-by murder as to count 1, because the evidentiary record is at least as or more consistent with an intent to inflict great bodily injury based on an action taken in reckless disregard of its consequences. We conclude otherwise.
The trial court instructed the jury on first degree murder by drive-by shooting, as murder perpetrated by discharging a firearm from a motor vehicle “intentionally at another person outside of the vehicle” when the “defendant specifically intended to kill a human being.” (CALJIC No. 8.25.1.) In addition to this instruction on the substantive offense, the court also instructed on the special circumstance set forth in section 190.2, subdivision (a)(21), which pertains to the discharge of a firearm from a motor vehicle with the intent to kill. (CALJIC No. 8.81.21.) This special circumstance, if found true, mandates that a defendant convicted of first degree murder receive the death penalty or life imprisonment without possibility of parole. The jury found this special circumstance true, which confirms the jury’s conclusion that Jara specifically harbored an intent to kill, not merely to inflict great bodily injury.
Jara’s argument is premised, in part, on section 190, subdivision (d) which provides that every person found guilty of second degree murder “shall be punished by imprisonment in the state prison for a term of 20 years to life if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside the vehicle with the intent to inflict great bodily injury.” (See also CALJIC No. 8.35.2.) But while section 190, subdivision (d) dictates the penalty in certain cases of second degree murder, it does not establish a substantive offense. (People v. Garcia (1998) 63 Cal.App.4th 820, 832–833.) A trial court must instruct on lesser included offenses supported by the evidence. (People v. Breverman, supra, 19 Cal.4th 142, 148–149, 162.) It does not, however, have a duty to instruct on lesser included enhancements. (People v. Majors (1998) 18 Cal.4th 385, 411.) Majors has not been overruled, and continues to bind us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In addition, although the trial court must instruct on general principles of law closely connected to the facts and which are necessary for the jury’s understanding of the case, its failure to do so will not compel reversal unless it is reasonably probable that the defendant would have obtained a more favorable result absent the error. (People v. Garcia, supra, 63 Cal.App.4th at pp. 833–834.) Jara asserts that failure to instruct on section 190, subdivision (d), was prejudicial in light of the instructions that were given which “suggested that any time a perpetrator shot a firearm from a motor vehicle and killed someone outside the vehicle, regardless of the circumstances, it could only be first degree murder.” He argues this prejudice was compounded by the prosecutor’s closing argument, in which she stated that killing someone by shooting at them from a car is “automatic first degree murder, ” or an “express lane” to first degree murder.
However, the trial court properly instructed the jury on the requirements for finding first degree murder by drive-by shooting. It also instructed that if an attorney said anything contrary to the court’s instructions, the jury must adhere to the instructions. (CALJIC No. 1.00.) We presume jurors understand and follow the court’s instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) Moreover, by expressly finding true the special circumstance under section 190.2, subdivision (a)(21)-that Jara intentionally shot out of his truck with the intent to kill Steven-the jury necessarily found an intent to kill sufficient for first degree murder, as defined by section 189. Such a finding rendered irrelevant any instruction on drive-by shooting in the context of second degree murder under section 190, subdivision (d). Accordingly, were we to find error in the trial court’s failure to instruct on whether Jara intended only to inflict great bodily injury, we would find such error harmless. (See People v. Lewis (2001) 25 Cal.4th 610, 646 [reversible instructional error not shown where factual question to have been posed by omitted instruction was necessarily resolved adversely to defendant under other properly given instructions]; People v. Pulido (1997) 15 Cal.4th 713, 726.)
4. Correction of abstract
For the reasons set forth in Jara’s opening brief, with which we and respondent agree, and which we need not repeat here, the abstract of judgment must be corrected to strike the parole revocation fine. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183–1185.) The abstract of judgment must also be corrected to reflect the trial court’s order that Jara pay a court security fee of $20 as to each count (§ 1465.8) for a total of $80, not the $100 currently reflected thereon.
DISPOSITION
The judgment is affirmed. The abstract of judgment shall be corrected in conformance with this opinion. The trial court is directed to prepare a corrected abstract of judgment striking the parole revocation fine, ordering payment of a court security fee of $80, and forward it to the Department of Corrections and Rehabilitation.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.