Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06NF0225 William L. Evans, Judge.
Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Sergio Manuel Tanori appeals from a judgment after a jury convicted him of attempted murder, assault with a firearm, second degree robbery, street terrorism, and felon in possession of a firearm, and found true street terrorism and firearm enhancements. Tanori argues: (1) insufficient evidence supports his convictions for attempted murder and street terrorism; (2) the trial court erroneously instructed the jury on the “kill zone” theory of attempted murder; (3) the court inadvertently admitted evidence of his prior conviction by way of a jury instruction; (4) he received ineffective assistance of counsel; and (5) there was cumulative error. We invited the parties to file supplemental letter briefs on the effect, if any, of People v. Sanchez (2010) 179 Cal.App.4th 1297 (Sanchez), on this case.
Although we agree the trial court should not have instructed the jury on the kill zone theory of attempted murder, we conclude Tanori was not prejudiced by the instruction. Additionally, the two-year concurrent sentence on Tanori’s street terrorism conviction must be stayed pursuant to Penal Code section 654 for the reasons stated in Sanchez, supra, 179 Cal.App.4th 1297. None of his other contentions have merit, and we affirm the judgment as modified.
FACTS
Tanori drove his girlfriend, Denise Maciel, to work and then drove her blue Toyota Corolla to pick up his friends, Miguel Iniguez and Juan Carlos Gaxiola, and Tanori’s other girlfriend, Valerie Budne. Tanori, Gaxiola, and Iniguez had been members of the “tagging” crew “Brain Damaged Kings” (BDK). When BDK evolved into the criminal street gang “South Side Brown Demons” (SSBD), Gaxiola and Iniguez remained in the “South Side Brown Demons, ” and Tanori joined the “La Fabrica” criminal street gang, but they remained friends. The four drove around Orange County.
Tanori said he had to pick up Maciel from work and asked Iniguez to pretend Budne was his girlfriend so as to not upset Maciel. As they drove to pick up Maciel, Tanori was driving recklessly and Iniguez thought he was intoxicated. Both Tanori’s request and his reckless driving upset Iniguez. At a stoplight near Ponderosa Park, Iniguez and Gaxiola got out of the car and walked into the park, which was in territory claimed by the criminal street gang, “Boys from the Hood” (BFTH). Miguel Godinez, a member of BFTH who went by the moniker “Downer” recognized Gaxiola as an old friend. Godinez led Gaxiola and Iniguez to a park bench where he introduced them to three other BFTH gang members, including Eduardo Perez, who went by the moniker “Tiny.” Gaxiola offered to share methamphetamine with the BFTH gang members.
Meanwhile, Tanori and Budne drove to pick up Maciel from work. Needless to say, Maciel was angry when she saw Budne. Tanori drove back to the park. He was angry at Iniguez and Gaxiola for getting out of the car and repeatedly said, “‘Fuck those fools.’” Tanori drove “wildly” into the park, stopped the car, and got out of the car, and walked into the park cursing along the way. Maciel and Budne remained in the car.
Anaheim Police Department gang officers, including Officer Catalin Panov, happened to be conducting surveillance of Ponderosa Park that afternoon. Perez and one of the other BFTH gang members approached Tanori and asked him where he was from. Tanori replied, “La Fabrica, ” and he punched the BFTH gang member. A fight ensued. Godinez and another BFTH gang member joined the brawl while Iniguez and Gaxiola tried to stop the fight. Tanori was on the ground getting a beating. When Iniguez pulled a BFTH gang member from Tanori’s back, Tanori stood up and pulled a semiautomatic handgun from his waistband. Someone yelled “‘gun, ’” and Iniguez dropped to the ground. Tanori pointed the gun at a BFTH gang member and fired twice. Everyone ran, and Tanori returned to the car and drove away. Panov detained Iniguez and Gaxiola.
Later that night, Khang La parked his car in front of his apartment. As he walked towards his apartment, Tanori approached him and asked, “Where you from?” and “You bang?” La responded he did not “gang bang, ” and Tanori made a reference to a “Spanish sounding gang name.” Tanori pulled out a nine millimeter handgun, pointed the gun at La, cocked the gun, and demanded La’s wallet. Tanori said if La did not give him the wallet he would “put a bullet through [him].” La complied. Tanori got back into the car and drove away. La called 911 and later that night identified Tanori as the man who robbed him. Later, officers arrested Tanori at a motel where they recovered La’s personal items.
Early the next morning, Officer Juan Reveles interviewed Tanori at the police station. After being advised of and waiving his Miranda rights, Tanori denied knowing anything about a shooting at the park. Eventually, Tanori admitted he went to the park to look for his friend and was attacked by gang members. Tanori claimed he heard gunshots and fled. He never mentioned acting in self-defense.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Officer Orlanzo Reyes interviewed Tanori at the police station a few days later. Reyes told him he only wanted to discuss a robbery in Garden Grove. After being advised of and waiving his Miranda rights, Tanori admitting robbing La. He said he needed money and was angry at his friends because of what happened in Anaheim. After claiming he only pretended to have a gun, Tanori admitted he had a gun the entire day. He said someone gave him the gun, it was passed around, and he got it back. Tanori stated he gave the gun to a friend the night of the robbery, but he refused to reveal the friend’s name.
An amended information charged Tanori with attempted murder, John Doe (Pen. Code, §§ 664, subd. (a), 187, subd. (a)) (count 1), assault with a firearm, John Doe (§ 245, subd. (a)(2)) (count 2), second degree robbery (§§ 211, 212.5, subd. (c)) (count 3), street terrorism (§ 186.22, subd. (a)) (count 4), and felon in possession of a firearm (§ 12021, subd. (a)(1)) (count 5). The amended information alleged Tanori committed all but count 4 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The amended information alleged he committed count 1 while personally discharging a firearm (§ 12022.53, subd. (c)), counts 1 and 2 while personally using a firearm (§ 12022.5, subd. (a)), and count 3 while personally using a firearm (§ 12022.53, subd. (b)).
All further statutory are to the Penal Code, unless otherwise indicated.
The amended information originally charged count 1 as to “Eduardo Perez” and count 2 as to “Ed Perez, ” but they were both amended by interlineations to read “John Doe.”
At trial, the prosecutor offered Iniguez’s testimony. On direct examination, Iniguez testified four BFTH gang members attacked Tanori. Iniguez stated he was between Tanori and the BFTH gang member, and when Tanori pulled out the gun he “threw [himself] to the floor.” Iniguez testified Tanori pointed the gun at the BFTH gang members. On cross-examination, he admitted telling an investigator Tanori’s “arm was extended in an upward direction towards the sky” to help Tanori. When defense counsel asked Iniguez to demonstrate Tanori’s arm angle, the trial court described it as “someplace between 45 and 90, ... [] 90 being straight up.” Defense counsel asked if Tanori was pointing the gun in the air, and Iniguez replied, “It’s the air for you, I guess.” Iniguez added, “To me the air is like this.” The trial court described Iniguez’s action as “gesturing straight up.” Iniguez added, “This is straight to somebody. This is -- and in their direction, which I was meaning, and this is straight up, okay.” On redirect examination, Iniguez testified when Tanori pointed the gun he was in between Tanori and a BFTH gang member, and he instinctively went to the ground. When the prosecutor asked him whether Tanori pointed the gun in the same direction as the BFTH gang member was running, Iniguez said, “Yes.”
Panov also testified on behalf of the prosecution. Panov testified he looked through binoculars and saw Perez and Godinez, and two other BFTH gang members. He said that after Iniguez and Gaxiola arrived, two more BFTH gang members appeared. When he looked through the binoculars after putting them down to rest his eyes, he saw men fighting. He said there were at least three and as many as five men fighting in close quarters. He explained, “[He] saw... Perez was involved in the altercation and [he] saw him arch his back and turn and run away as if running away from something and simultaneous with that came two gunshots.” Panov said he ducked because he was directly behind Perez and “it appeared that they were shooting at him.” He said after the gunshots the men scattered. Panov explained he interviewed Iniguez after the shooting and he told Panov that Tanori shot two times at BFTH gang members.
Maciel also testified for the prosecution, but she provided no testimony concerning the details of the shooting. However, when the prosecutor asked her whether she had previously seen Tanori with a gun and whether he had made statements to her about having a gun, she said, “Yes.” When the prosecutor asked her whether he made statements to her about “blasting people and blasting fools, ” she replied, “Yes, I guess.” Defense counsel objected and requested the answer be stricken. The trial court ordered the answer stricken and admonished the jury to not consider the answer.
The prosecutor offered the testimony of Officer Julissa Trapp, a gang expert. After detailing her background, training, and experience, Trapp testified concerning the culture and habits of traditional, turf oriented Hispanic criminal street gangs. Trapp testified concerning the importance of violence, retaliation, and respect within gangs, including the concept of a “gang gun” and the fact gang members boast to other gang members about the crimes they commit. She also explained the concepts of “claiming” one’s gang and “hitting up” others to determine whether they were allies or rivals.
Trapp opined La Fabrica was a criminal street gang, its primary activities were felony vandalism and weapons possession, and its rival was BFTH. She testified regarding the statutorily required predicate offenses. She opined Tanori was an active participant of La Fabrica at the time of the offense based on her review of the police reports, her investigation of the case, photographs of Tanori throwing La Fabrica hand signs, and her discussions with other gang officers concerning Tanori and La Fabrica. Based on hypothetical questions mirroring the facts of this case, Trapp believed the offenses were committed to promote and for the benefit of a criminal street gang. She explained a gang member walking into rival gang territory armed with a gun, claiming his gang, punching one of the gang members, and firing the weapon at rival gang members demonstrates he is willing to commit violent acts on behalf of the gang, which instills fear in the rival gang and increases respect for that gang member and his gang. She also stated a gang member robbing a person at gunpoint in the middle of the street while claiming his gang again demonstrates he is willing to commit violent acts on behalf of the gang which furthers his and the gang’s reputation.
Tanori offered the testimony of Freddie Romero. Romero was in the park playing handball with his Boy Scout troop when he heard gunshots. When he looked, he saw a man with a gun pointed in the air, and men running. On cross-examination, Romero admitted he was not wearing his glasses at the time. When asked to demonstrate, the trial court described his demonstration as, “maybe not quite 45 [degrees], but awfully close to a 45-degree angle between the floor and ceiling.” The parties stipulated that for purposes of count 5 Tanori was prohibited by law from possessing a firearm.
The jury convicted Tanori of all counts and found true all the enhancements. The trial court sentenced Tanori to prison for a total term of 32 years and eight months as follows: five years on count 1; a consecutive 20-year term on the personal discharge of a firearm enhancement as to count 1; a consecutive term of one year on count 3; and consecutive terms of three years and four months on the street terrorism and personal use of a firearm enhancements as to count 3. As relevant here, the court imposed a concurrent two-year term on count 4. The court either stayed or imposed concurrent terms on the remaining counts and enhancements.
DISCUSSION
I. CALCRIM No. 600 Attempted Murder and Kill Zone Theory
Tanori contends the trial court erroneously instructed the jury on the kill zone theory. We agree but conclude Tanori was not prejudiced by the error.
In People v. Bland (2002) 28 Cal.4th 313, 327, the California Supreme Court rejected the argument that transferred intent could apply in a case of attempted murder. The court held, however, a defendant may have a concurrent intent to kill more than one person, and may be found guilty of the attempted murder of those who are not the primary target of the attack. The court explained, “The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them. As to the nontargeted members of the group, the defendant might be guilty of crimes such as assault with a deadly weapon or firing at an occupied vehicle. [Citation.]” (Id. at p. 329.) The court characterized it as concurrent intent and not transferred intent. The court gave as examples the use of a bomb on an airplane, intended to kill one person, and the use of an automatic weapon on a group of people, one of whom the defendant has the intent to kill. (Id. at pp. 329-330.) In Bland, defendant fired into a car driven by a rival gang member and was convicted of the attempted murders of two passengers in the car, using a kill zone theory of concurrent intent. (Id. at p. 318.)
In People v. Anzalone (2006) 141 Cal.App.4th 380, 395, the court concluded the trial court had erred by permitting the prosecutor to argue defendant was guilty of attempted murder under a kill zone theory. The court stated: “Contrary to the prosecutor’s argument, an attempted murder is not committed as to all persons in a group simply because a gunshot is fired indiscriminately at them. The prosecutor’s argument incorrectly suggests that a defendant may be found guilty of the attempted murder of someone he does not intend to kill simply because the victim is in some undefined zone of danger. In fact, to be found guilty of attempted murder, the defendant must either have intended to kill a particular individual or individuals or the nature of his attack must be such that it is reasonable to infer that the defendant intended to kill everyone in a particular location as the means to some other end, e.g., killing some particular person.” (Id. at pp. 392-393.) Because defense counsel had failed to object to the prosecutor’s argument, the court concluded defendant had received ineffective assistance of counsel, and reversed the attempted murder convictions. (Id. at pp. 395-396.)
The Supreme Court revisited the Bland rule in People v. Stone (2009) 46 Cal.4th 131 (Stone). In Stone, a jury convicted defendant of one count of attempted murder for firing a single gunshot at a group of 10 people. After ruling that a person who shoots into a group of people, intending to kill one of the group, but not knowing or caring which one, can be convicted of attempted murder, the Supreme Court concluded the facts of the case did not support the giving of an instruction on the kill zone theory of intent for attempted murder. The court reasoned, “The kill zone theory simply does not fit the charge or facts of this case. That theory addresses the question of whether a defendant charged with the murder or attempted murder of an intended target can also be convicted of attempting to murder other, nontargeted, persons. Here, defendant was charged with but a single count of attempted murder. He was not charged with 10 attempted murders, one for each member of the group at which he shot. As the Court of Appeal explained, ‘There was no evidence here that [defendant] used a means to kill the named victim... that inevitably would result in the death of other victims within a zone of danger. [Defendant] was charged only with the attempted murder of [the victim] and not with the attempted murder of others in the group on which [defendant] fired his gun.’” (Id. at p. 138.)
The trial court instructed the jury with CALCRIM No. 600, “Attempted Murder, ” as follows: “The defendant is charged in [c]ount 1 with attempted murder. [¶] To prove that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant took at least one direct but ineffective step toward killing another person[;] [¶] AND [¶] 2. The defendant intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing the murder, then that person is not guilty of attempted murder. [¶] 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 Mr. Perez (John Doe), the People must prove that the defendant not only intended to kill Mr. Perez but also either intended to kill Mr. Perez or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Mr. Perez or intended to kill the others on the fight by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Mr. Perez or others in the fight.” (Italics added.)
The Attorney General argues Tanori forfeited appellate review of this issue because he did not request clarification or amplification of CALCRIM No. 600. Because Tanori argues his defense counsel was ineffective for failing to object to CALCRIM No. 600, we will address the merits of his claim. (People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing the merits of a claim, despite its forfeiture, because defendant asserted ineffective assistance of counsel].)
“A defendant has a constitutional right to have the jury determine every material issue presented by the evidence. [Citations.] Even in the absence of a request, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence; that is, those principles that are closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. [Citations.] On the other hand, a trial court may refuse to give an entirely accurate instruction if it is duplicative or there is no evidence to support it, and may modify any proposed instruction so long as the modifications are themselves correct and pertinent to the issues. [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)
Here, the prosecutor’s theory of the case was Tanori fired two shots at Perez and the group of four BFTH gang members, and he was guilty of one count of attempted murder based on the kill zone theory. As we know from Stone, supra, 46 Cal.4th at page 138, “[The kill zone theory] addresses the question of whether a defendant charged with the murder or attempted murder of an intended target can also be convicted of attempting to murder other, nontargeted, persons.” The prosecutor here did not charge Tanori with multiple counts of attempted murder but instead charged one count of attempted murder and one count of assault with a firearm, a general intent crime. Although the trial court did not have the benefit of the Stone court’s conclusion as it was decided after trial, we find its reasoning instructive here. The kill zone theory applies when an assailant acts to ensure the death of his intended target and the jury reasonably infers from the nature of his acts that he has an intent to also kill others. Although the evidence at trial demonstrated Tanori fired two shots, the prosecutor charged him with one count of attempted murder, and not two, and therefore, the court erred in instructing the jury on the kill zone theory of attempted murder.
The Attorney General relies on People v. Bragg (2008) 161 Cal.App.4th 1385 (Bragg), and People v. Campos (2007) 156 Cal.App.4th 1228 (Campos), to argue firing multiple shots can create a kill zone. Those cases are inapposite as they both involved multiple counts of murder or attempted murder. (Bragg, supra, 161 Cal.App.4th at pp. 1389-1390 [three counts of attempted murder]; Campos, supra, 156 Cal.App.4th at p. 1231 [two counts of first degree murder and one count of attempted murder].)
Although we have concluded the trial court erred in instructing the jury on the kill zone theory of attempted murder, it is not reasonably probable that Tanori 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 jury, including incorrect, ambiguous, conflicting, or wrongly omitted jury instructions that do not amount to federal constitutional error reviewed under harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836].)
First, the trial court properly instructed the jury on the elements of attempted murder, including the requirement the jury must find beyond a reasonable doubt that Tanori intended to kill a person, Perez or someone else in the fight. As we know from Stone, supra, 46 Cal.4th at page 141, a person can be guilty of attempted murder even if he or she intended to kill a random person rather than a specific one. Thus, to the extent Tanori claims the prosecutor’s argument compounded the error by misstating the law, the trial court properly instructed the jury on the specific intent requirement, and we presume jurors understand and follow the court’s instructions. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.) Second, as we explain below more fully, there was overwhelming evidence Tanori intended to kill Perez and he took a direct but ineffectual act toward accomplishing the intended killing.
II. Sufficiency of the Evidence
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘“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.]”’ [Citations.] [¶] “‘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.]’ [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).) “The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 104.)
A. Attempted Murder
“‘[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.]” (Smith, supra, 37 Cal.4th at p. 739.) “[T]he intent required for attempted murder can be satisfied not only by the intent to kill a particular person, but also by ‘a generalized intent to kill someone.’ [Citation.] Indeed, ‘a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind.’ [Citation.]” (People v. Ervine (2009) 47 Cal.4th 745, 789.) 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 under a concurrent intent theory. (People v. Stone (2009) 46 Cal.4th 131, 136.)
Tanori argues there was no evidence he intended to kill anyone or that there was a kill zone. He asserts he was merely trying to scare them away, and the jury convicted him based solely on the facts he was a gang member carrying a gun. Not so.
Tanori concedes there was a direct but ineffectual act toward accomplishing the intended killing. Because we have concluded the trial court erroneously instructed the jury on the kill zone theory of attempted murder, we will limit our discussion accordingly.
Based on the entire record, there was overwhelming evidence Tanori intended to kill Perez or the other BFTH gang member who attacked him. The jury could certainly conclude Tanori, after being pummeled by rival gang members, felt he was forced to retaliate against the BFTH gang members with greater violence or risk ridicule within his gang. Tanori, an active participant in La Fabrica armed with a gun, walked into rival BFTH claimed gang territory, Ponderosa Park, and Perez and another BFTH gang member approached Tanori. When they asked where he was from, Tanori replied, “La Fabrica, ” and he punched the BFTH gang member. Perez and the other BFTH gang member attacked, and soon two additional BFTH gang members joined in beating Tanori. After Iniguez pulled a BFTH gang member off Tanori’s back, Tanori stood up and brandished a gun.
The gravamen of Tanori’s complaint on appeal is what happened next. He asserts the evidence established he fired the gun in the air to scare away his rival attackers and he did not intend to kill anyone. The evidence compels a different conclusion however. Iniguez testified that after he pulled the BFTH gang member off Tanori’s back, he stood between Tanori and a BFTH gang member. He stated that Tanori pointed the gun at him, which caused him to immediately drop to the ground. He said Tanori pointed the gun at the BFTH gang members and fired twice. Panov testified he was directly behind Perez and through his binoculars saw between three and five men fighting. Panov explained he heard gunshots and saw Perez turn out of the way as if he was trying to avoid something. From this testimony, the jury could reasonably conclude Tanori fired the gun at Perez and the other BFTH gang member with the intent to kill one of them. (Stone, supra, 46 Cal.4th at p. 140 [a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind].)
Tanori spends much time discussing his arm angle and whether it was at 45 degrees or 90 degrees. Iniguez admitted he told an investigator Tanori’s arm was in the air to help him. And Romero did not look at Tanori until after he heard the shots. Again, based on Iniguez’s and Panov’s testimony the jury could certainly conclude Tanori’s arm was parallel to the ground, with the gun pointed at Perez or the other BFTH gang member. Tanori asks us to reweight the evidence, which we cannot do.
As to Tanori’s claim the jury convicted him of attempted murder based solely on the evidence he was an armed gang member, the trial court instructed the jury with CALCRIM No. 1403, “Limited Purpose of Evidence of Gang Activity, ” which stated the jury could consider evidence of gang activity for the limited purpose of deciding whether he acted with the intent necessary for count 4 and the street terrorism enhancements, and as to motive. The instruction concluded the jury could not consider this evidence for any other purpose, including that Tanori had a disposition to commit crime. Again, we must presume the jury follows the court’s instructions.
Tanori also claims the evidence establishes he fired the gun in the air to scare away the rival BFTH gang members. To support his claim, he cites to the fact he did not brandish the gun until after he was attacked. An intent to kill can be formed quickly. (People v. Memro (1995) 11 Cal.4th 786, 863.) And as we explain above, there was sufficient evidence from which the jury could conclude he aimed the gun at Perez or the other BFTH gang member.
Finally, Tanori relies on Anzalone, supra, 141 Cal.App.4th 380, to argue evidence defendant fired two or three shots in the direction of a group of people was insufficient evidence of a specific intent to kill. As we explain above, there was more than sufficient evidence for the jury to reasonably conclude Tanori fired the gun at Perez or the other BFTH gang member with the specific intent to kill one of them. Additionally, based on the state of the evidence and CALCRIM No. 600’s requirement the jury concluded beyond a reasonable doubt Tanori intended to kill a person, we conclude the prosecutor’s burden of proof was not lessened. Thus, there was sufficient evidence supporting Tanori’s conviction for count 1, attempted murder.
B. Street Terrorism
Tanori argues insufficient evidence supports his conviction in count 4 and the jury’s findings he committed counts 1, 2, 3, and 5 for the benefit of a criminal street gang because there was no evidence La Fabrica was a criminal street gang. Specifically, he claims felony vandalism and weapons possession are not enumerated felonies in section 186.22, subdivision (e). Nonsense.
The street terrorism substantive offense, section 186.22, subdivision (a), states: “Any person who actively participates in any criminal street gang with knowledge that its members engage 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, shall be punished... in the state prison for 16 months, or two or three years.” The street terrorism enhancement, section 186.22, subdivision (b)(1), increases the punishment for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....”
Section 186.22, subdivision (f), defines “‘criminal street gang’” as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Italics added.)
Section 186.22, subdivision (e), provides: “‘pattern of criminal gang activity’” means the commission of... (20) Felony vandalism, as defined in paragraph (1) of subdivision (b) of [s]ection 594. [¶]... [¶] (23) Possession of a pistol, revolver, or other firearm capable of being concealed upon the person in violation of paragraph (1) of subdivision (a) of [s]ection 12101. [¶]... [¶] (31) Prohibited possession of a firearm in violation of [s]ection 12021. [¶] (32) Carrying a concealed firearm in violation of [s]ection 12025. [¶] (33) Carrying a loaded firearm in violation of [s]ection 12031.”
Here, Trapp testified that based on her background, training, and experience that at the time of the offense La Fabrica was an ongoing organization, had approximately 30 members, and had an identifying symbol, “LF.” After testifying concerning the statutorily required predicated offenses, Trapp stated La Fabrica’s primary activities were felony vandalism (§ 186.22, subd. (e)(20)) and weapons possession (§186.22, subd. (e)(31)). This was sufficient testimony for the jury to reasonably conclude La Fabrica’s primary activities were those prohibited by section 186.22, subdivision (e). (People v. Thomas (2005) 130 Cal.App.4th 1202, 1208, 1210 [expert witness may rely on hearsay testimony in forming opinions]; People v. Avila (2009) 46 Cal.4th 680, 703 [single witness’s testimony is sufficient to support a conviction]). Indeed, the evidence demonstrated Tanori, an active participant in La Fabrica at the time of the offense, illegally possessed a firearm. Thus, sufficient evidence supported the jury’s findings on the street terrorism offense and enhancements.
III. Prior Conviction Evidence
Tanori claims the trial court erroneously failed to remove the reference to “conviction” in CALCRIM No. 2511, “Possession of Firearm by Person Prohibited Due to Conviction-Stipulation to Conviction (Pen. Code, §§ 12021[, subdivision] (A)-(C) & (E), 12021.1[, subdivision] (A), 12001.6.” He claims this error was exacerbated by the admission of improper character testimony, Maciel’s testimony concerning his prior possession of a firearm and boasting about gangs. Again, we disagree.
“[U]nder California Constitution article I, section 28 and People v. Valentine (1986) 42 Cal.3d 170, 173, ... [(Valentine)], a jury must be advised of a defendant’s felon status when that status is (as under section 12021) an element of the current charge. We noted in Valentine that when a defendant stipulates to his or her felon status, ‘evidence of the nature of his prior convictions... may and should be withheld from the jury’ because ‘such evidence is irrelevant’ to the issue of one’s status as a felon. [Citations.]” (People v. Stewart (2004) 33 Cal.4th 425, 478.) “Valentine, supra, 42 Cal.3d 170, ..., allows the trial court only two options when a prior conviction is a substantive element of a current charge: Either the prosecution proves each element of the offense to the jury, or the defendant stipulates to the conviction and the court ‘sanitizes’ the prior by telling the jury that the defendant has a prior felony conviction, without specifying the nature of the felony committed. These are the same two options the trial court here offered defendant.” (People v. Sapp (2003) 31 Cal.4th 240, 262.)
Here, the parties stipulated that for purposes of count 5 Tanori was prohibited by law from possessing a firearm. Tanori does not claim and our review of the record revealed no evidence the jury heard the nature of the felony conviction. When the trial court read the instructions to the jury, the court did not read the heading to the jury, and thus, the jury did not hear Tanori had been convicted of a felony. Assuming the jury read the CALCRIM No. 2511 heading, the jury learned only that he had a conviction. The heading did not disclose the nature of the offense to the jury.
Additionally, even if the jury read the heading, CALCRIM No. 2511 advised the jury it could not consider the fact Tanori was prohibited from possessing a firearm for any other purpose and not to speculate about or discuss the nature of the prohibition. Finally, the court instructed the jury evidence was the sworn testimony of witnesses, exhibits admitted into evidence, and anything else the court told the jury was evidence.
Tanori argues the prejudicial effect of submission to the jury of CALCRIM No. 2511 with the heading referencing a “conviction” was exacerbated by Maciel’s testimony concerning Tanori previously having weapons, discussing weapons with her, and discussing “blasting people.” First, the trial court admonished the jury to not consider Tanori’s statement to Maciel about “blasting people and blasting fools, ” and we assume the jury followed the court’s instructions. Second, we simply cannot assume the jury read the caption and relied on Maciel’s testimony that Tanori previously had a gun and discussed guns with her as improper character evidence to convict him of the offenses and find true the enhancements. Finally, assuming for purposes of argument there was error, even under the most stringent harmless error standard, we conclude Tanori was not prejudiced as there was overwhelming evidence of his guilt.
IV. Ineffective Assistance of Counsel
Tanori asserts he received ineffective assistance of counsel on numerous grounds, including that defense counsel failed to (1) object to the kill zone portion of CALCRIM No. 600 and the prosecutor’s closing argument concerning the kill zone theory; (2) object to the title of CALCRIM No. 2511; (3) object to the prosecutor’s questions of Maciel regarding Tanori’s previous possession of weapons and whether he made statements about “blasting” people; and (4) request a pinpoint instruction stating the jury could not find him guilty of count 1 or count 2 if he only intended to scare the gang members when he fired the gun. Because we conclude Tanori was not prejudiced by any of the alleged deficiencies, we need not decide whether his defense counsel was inadequate.
Because we conclude Tanori was not prejudiced by any of the alleged deficiencies in defense counsel’s performance, we do not provide the relevant portions of the prosecutor’s closing argument.
“In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel’s performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel’s performance prejudiced defendant’s case in such a manner that his representation ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citations.] Moreover, ‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.] If defendant fails to show that he was prejudiced by counsel’s performance, we may reject his ineffective assistance claim without determining whether counsel’s performance was inadequate. [Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390.)
Here, there is not a reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the proceeding would have been different. As we explain above more fully, there was overwhelming evidence supporting Tanori’s conviction for the attempted murder of Perez and street terrorism, and Tanori does not argue his other convictions or the various enhancements are not supported by sufficient evidence. Because Tanori has not shown he was prejudiced, his claim has no merit, and thus, our confidence in the outcome is not undermined.
V. Cumulative Error
Tanori contends the cumulative effect of the errors requires reversal. Although we have concluded the trial court erroneously instructed the jury on the kill zone theory of attempted murder, we conclude he was not prejudiced because there was overwhelming evidence of Tanori’s guilt on all counts. Therefore, his claim the cumulative effect of the errors has no merit.
VI. Section 654
Relying on Sanchez, supra, 179 Cal.App.4th 1297, Tanori argues his concurrent two-year sentence on count 4 must be stayed pursuant to section 654. We agree.
Section 654, subdivision (a), in relevant part provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
In People v. Herrera (1999) 70 Cal.App.4th 1456 (Herrera), defendant, a gang member, fired three shots at a rival gang member’s house from the front passenger seat of a vehicle. One bullet struck an 11-year-old boy and another bullet struck a man in the left shoulder. The vehicle made a U-turn and returned for a second pass, and approximately 10 additional shots were fired but there were no further injuries. As relevant here, jury convicted defendant of two counts of attempted premeditated murder and one count of street terrorism, and the trial court sentenced defendant on the three counts without staying the sentence on any of the counts. (Id. at pp. 1465-1466.) After discussing relevant California Supreme Court case authority, the court concluded section 654 did not apply, relying on the distinctions between the requisite intents for the two crimes. The court said the crime of attempted murder required defendant to have the specific intent to kill, whereas the crime of street terrorism required defendant to have the intent to actively participate in a criminal street gang. (Id. at p. 1467.)
In Sanchez, supra, 179 Cal.App.4th 1297, our colleagues in the Fourth District, Division Two disagreed with the Herrera court’s reasoning. In Sanchez, supra, 179 Cal.App.4th at page 1301, a jury convicted defendant of committing a robbery with a confederate and street terrorism. In finding defendant could not be punished for both crimes, the court stated: “Here, the underlying robberies were the act that transformed mere gang membership-which, by itself, is not a crime-into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies. Gang participation merely requires that the defendant ‘willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang....’ [Citation.] It does not require that the defendant participated in the underlying felony with the intent to benefit the gang. [Citations.] [¶] In our view, the crucial point is that ... defendant stands convicted of both (1) a crime that requires, as one of its elements, the intentional commission of an underlying offense, and (2) the underlying offense itself.” (Id. at p. 1315.)
We note that in the 10-year span between Herrera and Sanchez, other cases have addressed the issue we face here. (People v. Vu (2006) 143 Cal.App.4th 1009 (Vu); People v. Ferraez (2003) 112 Cal.App.4th 925; In re Jose P. (2003) 106 Cal.App.4th 458.) And subsequent to Sanchez, one published decision followed Herrera, People v. Mesa (2010) 186 Cal.App.4th 773 (Mesa), and one published decision followed Sanchez, People v. Duarte (2010) 190 Cal.App.4th 82 (Duarte), yet another case from this court. The California Supreme Court recently granted review in both cases. Although the issue is currently before the Supreme Court, we must resolve the issue before us.
Mesa, supra, 186 Cal.App.4th 773, review granted October 27, 2010, S185688; Duarte, supra, 190 Cal.App.4th 82, review granted February 23, 2011, S189174.
Section 654 does not include any language that permits the circumvention of the prohibition against multiple punishments because a defendant had multiple intents or intended multiple impacts in a single act scenario. The cases interpreting section 654 require a trial court to determine whether the series of acts amounts to a course of conduct subject to a single intent, or multiple intents and objectives, only when a defendant engages in multiple acts. Herrera, supra, 70 Cal.App.4th 1456, appears to have extended the “intent and objective” test articulated in Neal v. State of California (1960) 55 Cal.2d 11, to impose separate punishments for the street terrorism offense and the underlying felony even if those offenses arise out of a single act. (Herrera, supra, 70 Cal.App.4th at p. 1468; Sanchez, supra, 179 Cal.App.4th at p. 1312 [Herrera treated defendant’s two counts of attempted murder as a single drive-by shooting].)
We conclude the “intent and objective” test as applied in Herrera is inapt when a defendant’s conduct is but a single act. The purpose of section 654 is to prevent multiple punishments for a single act and thereby shield a defendant from multiple punishments. We find no support in applicable California Supreme Court decisional authority for the proposition a single act can be carved up based on intents or objectives and thereby pierce section 654’s protections. We agree with the Herrera court’s statement the Legislature intended to create a new crime to address the serious threat street gang violence posed to public safety. But that intent is not instructive in interpreting the plain language of section 654.
Here, the information charged Tanori with attempted murder, assault with a firearm, second degree robbery, street terrorism, and felon in possession of a firearm. The trial court instructed the jury section 186.22, subdivision (a)’s felonious criminal conduct requirement was defined as “committing or attempting to commit any of the following crimes: [a]ttempted [m]urder, [a]ttempted [v]oluntary [m]anslaughter, [a]ssault with a [f]irearm, [r]obbery, [f]elony [p]ossession of a [f]irearm.” In closing argument, the prosecutor argued the jury had to find he actively participated in La Fabrica and he committed a felony. The prosecutor argued the jury had to agree which felony he committed and “[t]he easiest one is when he is possessing the firearm as a prohibited person.” The prosecutor also referred to the robbery and the assault with a firearm counts.
It is clear that when the jury convicted Tanori of count 4 it did so based on felonious conduct he was charged with and convicted of in counts 1, 2, 3, and 5. Thus, the trial court should not have imposed the two-year concurrent sentence on count 4 as one of the underlying felonies, counts 1, 2, 3, or 5 was used to satisfy the felonious conduct element of section 186.22, subdivision (a)’s street terrorism charge in count 4.
DISPOSITION
We affirm the convictions but modify the judgment as follows: The concurrent two-year term imposed on count 4, street terrorism, is ordered stayed pursuant to section 654. The superior court clerk is directed to prepare an amended abstract of judgment consistent with this opinion and forward it to the Department of Corrections and Rehabilitation, Division of Adult Operations.
WE CONCUR: ARONSON, J., IKOLA, J.