Summary
In People v. Zarazua (2008) 162 Cal.App.4th 1348 (Zarazua), we reversed the second degree murder and attempted voluntary manslaughter convictions sustained by Sergio Zarazua and his codefendant, Jorge Ramirez.
Summary of this case from People v. ZarazuaOpinion
No. C047726.
May 15, 2008. [CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I-X and XII-XIII.
Appeal from the Superior Court of Sacramento County, Nos. 01F06412 and 01F06501, David De Alba, Judge.
Madeline McDowell, under appointment by the Court of Appeal, for Defendant and Appellant Sergio Zarazua.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Zarazua.
Heather J. MacKay, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Ramirez.
Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Dane R. Gillette and Mary Jo Graves, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Paul E. O'Connor and Maureen A. Daly, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Three-year-old Rocky Douangmala was killed in a traffic collision. The car in which he was riding was hit by a car carrying two members of the Norteños gang, who were fleeing because of gunfire from another car carrying three members of the Sureños gang. Defendants Sergio Zarazua, Carlos Zarazua, and Jorge Ramirez, the Sureños gang members, were convicted of various counts associated with the gunfire and Rocky's death.
Because two of them share a surname (they are brothers), we refer to defendants by their first names, for clarity.
Carlos, who was tried by a separate jury, was convicted of two counts of attempted murder and one count each of shooting at an occupied vehicle and permitting discharge of a firearm from a vehicle that he was driving. The jury found true several firearm and gang-related enhancement allegations. Sentenced to a state prison term of 15 years to life, Carlos appeals. We conclude his contentions are without merit except that one of the enhancements found true by the jury with respect to convictions for shooting at an occupied vehicle and permitting discharge of a firearm from a vehicle that he was driving is not applicable to convictions for those crimes. We therefore order them stricken and affirm the judgment as modified. The striking of the enhancements does not affect the sentence.
Sergio and Jorge were tried at the same time and in the same courtroom as Carlos but by a different jury. The jury convicted them of one count each of second degree murder and shooting at an occupied vehicle and two counts of attempted voluntary manslaughter, as well as firearm and gang-related enhancements. The court sentenced Sergio and Jorge to 22 years eight months, plus 40 years to life in state prison. We conclude that the second degree murder and attempted voluntary manslaughter convictions must be reversed and remanded for retrial because of instructional error. Otherwise, we affirm the judgment, including the conviction for shooting at an occupied vehicle.
In the published portion of this opinion, we consider an issue raised by Sergio and Jorge. They contend that the evidence was insufficient to sustain the enhancement allegation that their personal and intentional discharge of firearms proximately caused Rocky's death. (See Pen. Code, § 12022.53, subd. (d).) We conclude that evidence was sufficient because the collision that caused Rocky's death was a foreseeable consequence of their discharge of the firearms.
FACTS
Emilio Osorio and Julio Covington, cousins and members of the Norteños gang, went to the ampm store on the corner of Jessie Avenue and Norwood Avenue in Sacramento in the red Pontiac Firebird that Covington was driving. Neither of them was armed. Covington parked in front of the store and went into the store while Osorio waited in the car.Inside the store, Covington saw Sergio, whom he recognized as a Sureño, based on his clothing. He was wearing a shirt with the number 13 on it. Covington left the store and drove the Pontiac over by the gasoline pumps. Carlos was standing near one of the pumps, next to a blue Toyota. Covington yelled "Norte" at Carlos, which, to a rival gang member, is a challenge. Covington also called Carlos a "scrapa," a name a Norteños gang member calls a Sureños gang member, intended as an insult. In response, Carlos yelled, "Fuck you." Angry, Covington pulled out of the station and onto Jessie Avenue. He drove slowly through the neighborhood looking for someone he knew.
Covington stopped at a stop sign on Naruth Way at the intersection with Jessie Avenue, less than a half-mile from the ampm store and about a block from Rio Linda Boulevard. The Toyota from the ampm store, with Carlos driving and Sergio and Jorge as passengers, left the ampm store and, traveling on Jessie Avenue, approached the intersection of Naruth Way and Jessie Avenue just after the Pontiac, traveling on Naruth Way, arrived at the same intersection. The Toyota skidded to a stop about 40 feet away from the Pontiac. Sergio and Jorge each leaned out of the Toyota and fired handguns at the Pontiac.
Reacting to the gunshots, Covington told Osorio to get down and first accidentally put the Pontiac in neutral but then into drive. He burned rubber, then drove away from the Toyota down Jessie Avenue, gaining speed rapidly, and, despite a stop sign, entered Rio Linda Boulevard going about 45 miles per hour. At the same time, a Honda Accord driven by Khamla Douangmala was passing through the same intersection on Rio Linda Boulevard, going about 35 miles per hour. Douangmala's uncle, Chan Douangdara, was riding in the front passenger seat, and Douangmala's three-year-old son, Rocky, was riding in the backseat on the passenger side.
The Pontiac hit the Honda, propelling it into some poles. Douangmala and his uncle were both knocked unconscious but later recovered. Rocky, however, died as a result of the impact.
Lynn Reed had been waiting at the stop sign when the Pontiac passed him and collided with the Honda. Reed was driving a sport utility vehicle and pulling a boat. After the collision, Covington and Osorio left the Pontiac and ran toward Reed, who had pulled over onto Rio Linda Boulevard. Osorio jumped into the boat. Covington attempted to force his way into Reed's vehicle through the driver's door and clung to the vehicle, expressing fear that someone was shooting at him. After Reed drove slowly down Rio Linda Boulevard, about a block, Covington and Osorio jumped off and fled the scene.
Sacramento Police Department investigators found a .25-caliber automatic shell casing at the corner of Jessie Avenue and Naruth Way. The red Pontiac had a bullet hole in the right rear quarter panel and another through the rear tail lamp. Other holes were caused either by bullets or by a dent puller, a tool used to repair dents in a car.
About one month after the incident, police searched a residence occupied by Carlos and Sergio and their parents. The blue Toyota was parked in front of the residence. The officers found indicia of gang membership relating to both Carlos and Sergio.
Each of the defendants was interviewed by police.
As discussed below, two juries tried the three defendants. Only the jury considering Carlos's guilt heard the recording of Carlos's interview. And only the jury considering the guilt of Sergio and Jorge heard the recordings of their interviews.
Carlos, 19 years old at the time, recounted Covington's challenge to him at the ampm store and their pursuit of the Pontiac. Both Sergio and Jorge had handguns, Jorge's a .25-millimeter, and fired at the Pontiac.
Jorge, 16 years old at the time, stated that, while he and Sergio were in the ampm store, they realized that someone was talking to Carlos, out by the gasoline pumps. They hurried out and joined Carlos in the Toyota to chase the Pontiac. Jorge claimed that the passenger in the Pontiac pointed a gun at them and that Sergio was the only one who fired. He admitted associating with Sureños gang members. Later, he admitted that he fired one round at the Pontiac.
Sergio, 15 years old at the time, stated that he and Jorge were Sureños gang members, but Carlos was not. He claimed that the occupants of the other car were shooting into the air, but he later retracted that statement and claimed he said it because Jorge had told him to. Both Sergio and Jorge fired at the Pontiac.
Other evidence will be recounted as it becomes relevant to the issues discussed.
PROCEDURE
The district attorney filed a "third amended consolidated information" alleging counts of murder, attempted murder, shooting at an occupied vehicle, and permitting another to discharge a firearm from a vehicle, with associated special circumstances and enhancements. All three defendants pled not guilty to all counts, and Carlos included a plea of not guilty by reason of insanity. The case was tried before two juries — one for Sergio and Jorge (the "green" jury) and a separate jury for Carlos (the "gold" jury, but also referred to in the record as the "yellow" jury).The green jury found Jorge and Sergio guilty of second degree murder, attempted voluntary manslaughter (two counts), and shooting at an occupied vehicle. The gold jury found Carlos guilty of attempted murder (two counts), shooting at an occupied vehicle, and permitting discharge of a firearm from a vehicle that he was driving.
The following outline details the jury's verdicts and its findings concerning the associated enhancement allegations:
1. Jorge Ramirez A. The jury found Jorge guilty of second degree murder of Rocky Douangmala as a lesser included offense of first degree murder (Pen. Code, §§ 187, 189; count one), with the following findings:
Hereafter, unspecified code citations are to the Penal Code.
i. Jorge was armed with a firearm (§ 12022, subd. (a)(1));
ii. Jorge used a firearm (§ 12022.5, subd. (a));
iii. Jorge personally used a firearm (§ 12022.53, subds. (b), (e)(1));
iv. Jorge personally discharged a firearm (§ 12022.53, subds. (c), (e)(1));
v. Jorge personally discharged a firearm proximately causing great bodily injury and death to Rocky Douangmala (§ 12022.53, subds. (d), (e)(1)); and
vi. the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
B. The jury found Jorge guilty of attempted voluntary manslaughter of Emilio Osorio as a lesser offense of attempted murder (§§ 192, 664; count two), with the following findings:
i. Jorge was armed with a firearm (§ 12022, subd. (a)(1));
ii. Jorge used a firearm (§ 12022.5, subd. (a)); and
iii. the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
C. The jury found Jorge guilty of attempted voluntary manslaughter of Julio Covington as a lesser offense of attempted murder (§§ 192, 664; count three), with the following findings:
i. Jorge was armed with a firearm (§ 12022, subd. (a)(1));
ii. Jorge used a firearm (§ 12022.5, subd. (a)); and
iii. the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
D. The jury found Jorge guilty of shooting at an occupied vehicle (§ 246; count four), with the following findings:
i. Jorge was armed with a firearm (§ 12022, subd. (a)(1));
ii. Jorge used a firearm (§ 12022.5, subd. (a));
iii. Jorge personally used a firearm (§ 12022.53, subds. (b), (e)(1));
iv. Jorge personally discharged a firearm (§ 12022.53, subds. (c), (e)(1));
v. Jorge personally discharged a firearm proximately causing great bodily injury and death to Rocky Douangmala (§ 12022.53, subds. (d), (e)(1)); and
vi. the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
2. Sergio Zarazua
A. The jury found Sergio guilty of second degree murder of Rocky Douangmala as a lesser included offense of first degree murder (§§ 187, 189; count one), with the following findings:
i. Sergio was armed with a firearm (§ 12022, subd. (a)(1));
ii. Sergio used a firearm (§ 12022.5, subd. (a));
iii. Sergio personally used a firearm (§ 12022.53, subds. (b), (e)(1));
iv. Sergio personally discharged a firearm (§ 12022.53, subds. (c), (e)(1));
v. Sergio personally discharged a firearm proximately causing great bodily injury and death to Rocky Douangmala (§ 12022.53, subds. (d), (e)(1)); and
vi. the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
B. The jury found Sergio guilty of attempted voluntary manslaughter of Emilio Osorio as a lesser offense of attempted murder (§§ 192, 664; count two), with the following findings:
i. Sergio was armed with a firearm (§ 12022, subd. (a)(1));
ii. Sergio used a firearm (§ 12022.5, subd. (a)); and
iii. the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
C. The jury found Sergio guilty of attempted voluntary manslaughter of Julio Covington as a lesser offense of attempted murder (§§ 192, 664; count three), with the following findings:
i. Sergio was armed with a firearm (§ 12022, subd. (a)(1));
ii. Sergio used a firearm (§ 12022.5, subd. (a)); and
iii. the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
D. The jury found Sergio guilty of shooting at an occupied vehicle (§ 246; count four), with the following findings:
i. Sergio was armed with a firearm (§ 12022, subd. (a)(1));
ii. Sergio used a firearm (§ 12022.5, subd. (a));
iii. Sergio personally used a firearm (§ 12022.53, subds. (b), (e)(1));
iv. Sergio personally discharged a firearm (§ 12022.53, subds. (c), (e)(1));
v. Sergio personally discharged a firearm proximately causing great bodily injury and death to Rocky Douangmala (§ 12022.53, subds. (d), (e)(1)); and
vi. the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
3. Carlos Zarazua
A. The jury found Carlos not guilty of first degree murder and was unable to reach a verdict with respect to the lesser included offense of second degree murder.
B. The jury found Carlos guilty of attempted murder of Emilio Osorio (§§ 187, subd. (a), 664; count two), with the following findings:
i. Carlos did not commit the attempted murder willfully, deliberately, and with premeditation;
ii. Carlos was not armed with a firearm;
iii. a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1));
iv. a principal personally discharged a firearm (§ 12022.53, subds. (c), (e)(1));
v. the jury made no finding concerning whether a principal discharged a firearm proximately causing great bodily injury and death to Rocky Douangmala; and
vi. the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
C. The jury found Carlos guilty of attempted murder of Julio Covington (§§ 187, subd. (a), 664; count three), with the following findings:
i. Carlos did not commit the attempted murder willfully, deliberately, and with premeditation;
ii. Carlos was not armed with a firearm;
iii. a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1));
iv. a principal personally discharged a firearm (§ 12022.53, subds. (c), (e)(1));
v. the jury made no finding concerning whether a principal discharged a firearm proximately causing great bodily injury and death to Rocky Douangmala; and
vi. the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
D. The jury found Carlos guilty of shooting at an occupied vehicle (§ 246; count four), with the following findings:
i. Carlos was not armed with a firearm;
ii. a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1));
iii. a principal personally discharged a firearm (§ 12022.53, subds. (c), (e)(1));
iv. the jury made no finding concerning whether a principal discharged a firearm proximately causing great bodily injury and death to Rocky Douangmala; and
v. the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
E. The jury found Carlos guilty of permitting discharge of a firearm from a vehicle that he was driving (§ 12034, subd. (b); count five), with the following findings:
i. Carlos was not armed with a firearm;
ii. a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1));
iii. a principal personally discharged a firearm (§ 12022.53, subds. (c), (e)(1));
iv. the jury made no finding concerning whether a principal discharged a firearm proximately causing great bodily injury and death to Rocky Douangmala; and
v. the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
After a trial on Carlos's sanity, the jury returned verdicts finding he was sane when he committed the crimes. Also with respect to Carlos, the court declared a mistrial as to second degree murder and the allegations that a principal discharged a firearm proximately causing great bodily injury and death to Rocky Douangmala. Later, the court dismissed that count and those allegations.
The trial court sentenced Jorge and Sergio, identically, to a total determinate term of 22 years eight months and a concurrent indeterminate term of 40 years to life in state prison. The court sentenced Carlos to an indeterminate term of 15 years to life in state prison.
Because defendants do not raise issues concerning the computation of their sentences, we need not recount the details.
DISCUSSION I-X
See footnote, ante, page 1348.
( Carlos Only)
Less than one year before the incident charged in this case, Carlos received a brain injury when he was beaten by rival gang members. At trial, Carlos asked the court to instruct the jury, using CALJIC No. 3.37, to take into consideration Carlos's physical impairment when considering what a reasonable person should know. That instruction states: "The amount of knowledge a reasonable person with impaired physical faculties should possess under particular circumstances is the knowledge which a person of ordinary prudence with similarly impaired faculties would have under the circumstances similar to those shown by the evidence." (CALJIC No. 3.37.) The trial court refused to give the instruction. On appeal, defendant asserts the refusal to give the instruction was error. As did the trial court, we conclude the refusal to give CALJIC No. 3.37 was proper. In October 2000, less than one year before the incident in this case, Carlos was assaulted by several adult Norteños gang members. They hit him with a pipe, a bottle, and fists. He was hospitalized for nine days for treatment of his injuries, including traumatic brain injury, a broken nose, swelling, and abrasions. After Carlos was released from the hospital, Sergio took care of him and always accompanied him away from their residence. Carlos had memory problems and did not appear to regain all of the cognitive ability that he had before the attack. An educational psychologist tested Carlos after his arrest in this case and found him to be below 95 percent of the population in intelligence. He suffered from slow reactions and difficulty in processing information, which would cause him to rely on others to take the lead. Carlos's counsel argued that the injury to Carlos was a physical injury resulting in physical, as well as mental, impairment. Therefore, contended counsel, the trial court was required to give CALJIC No. 3.37. The trial court responded: "I have elected to, and did in fact instruct the jury as to [CALJIC No.] 3.32 which informed the jury that they may consider evidence of a mental defect or disorder at the time the crime was charged, and I gave that reluctantly. [] . . . [] So in light of the fact that I gave 3.32, I did not find it necessary to give 3.37." Carlos's appellate argument is more specific than was his request in the trial court. There, he simply asked for the instruction because he had suffered a physical injury. Here, he cites People v. Mathews (1994) 25 Cal.App.4th 89. In Mathews, police obtained a warrant to search the defendant's residence, which he shared with his son, a suspected drug dealer. The defendant was elderly, blind, and hearing-impaired. When the officers forced their way into the residence, the defendant brandished a shotgun. ( People v. Mathews, supra, 25 Cal.App.4th at pp. 93-94.) Convicted of exhibiting a firearm in the presence of a peace officer, the defendant asserted, on appeal, that the trial court erred. Because an element of the crime was that the defendant "reasonably should know" that the victim was a peace officer, argued the defendant, the trial court should have instructed the jury that it should take into account the defendant's physical Page 17 impairments (sight and hearing) when it determined whether the defendant reasonably should have known the victim was a peace officer. The court agreed and reversed. ( Id. at pp. 99-101.) The difference between Mathews and this case is obvious. In Mathews, the defendant's argument was that he did not have the physical capacity to see or hear, which affected his ability to know he was in the presence of a peace officer. Here, Carlos has no such sensory impairment. There was no evidence that he could not see or hear what was happening. As Carlos concedes, his asserted impairment was in processing information, not gathering it. The fact that his mental impairment, if there was any, was caused by physical trauma does not change this analysis. Still, Carlos claims that, because the jury found he did not shoot at the Pontiac, he was therefore convicted on an aiding and abetting theory and that theory required the jury to consider his physical impairment. The law does not support Carlos's argument. Under the aiding and abetting theory, he could be found guilty of any crime committed by a principal which is a natural and probable consequence of any other crime which the defendant aided and abetted. (See CALJIC No. 3.02.) As the trial court instructed the jury, "[i]n determining whether a consequence is `natural and probable,' [the jury] must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of Page 18 the circumstances surrounding the incident. A `natural' consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. `Probable' means likely to happen." (CALJIC No. 3.02.) Carlos argues: "CALJIC No. 3.32, as modified and read to the jury [concerning mental impairment], focuses on whether [Carlos] actually (subjectively) formed the intent to commit or aid and abet in the charged crimes. [Record citations.] On its face, it makes no reference to the objectively reasonable-person standard or to guilt under the doctrine of natural and probable consequence. CALJIC No. 3.37 [concerning impairment of physical faculties] would have told the jury to consider whether, given the fact that Carlos subjectively committed or aided and abetted a lesser or different crime . . ., a reasonable person with Carlos's limitations would have found that the greater crime (attempted murder or shooting at an occupied vehicle) was a natural and probable consequence of that lesser crime." (Italics in original.) The problem with this argument is that it is not supported by the law concerning natural and probable consequences. Carlos offers no authority, and we know of none, requiring the jury to take into account a brain injury, as a physical impairment, in determining whether the crimes committed by a principal were the natural and probable consequences of crimes which Carlos aided and abetted. As noted above, the test is objective, not subjective, and asks whether "a reasonable person in the Page 19 defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant." ( People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) Accordingly, Carlos fails to establish that the trial court erred by not instructing the jury, using CALJIC No. 3.37, to take into consideration Carlos's physical impairment when considering what a reasonable person should know.II Modification of CALJIC No. 3.37 ( Carlos Only)
Again focusing on the instruction that Carlos could be found guilty as an aider and abettor to any crime that was the natural and probable consequence of any act he aided and abetted, Carlos asserts the trial court committed error by not modifying CALJIC No. 3.37 sua sponte. He contends the trial court had a duty to instruct the jury that it should take into consideration Carlos's asserted mental impairment in determining what a person of reasonable and ordinary prudence would have expected likely to occur. We disagree. Page 20 As we noted above, the test for whether a crime was a natural and probable consequence of an act a defendant aided and abetted is objective. ( People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) Carlos's mental condition is simply irrelevant, and the claim that CALJIC No. 3.37 can be extended to mental impairments is similarly unavailing. Accordingly, Carlos's asserted mental impairment was irrelevant to the question of whether any of the charged or lesser included crimes were the natural and probable consequence of acts which Carlos aided and abetted. The trial court did not err.
The Attorney General contends defendants forfeited this and other claims of instructional error because they did not object to the instruction in the trial court. "Normally, a defendant forfeits the right to appeal alleged errors `"by failing to make an appropriate objection in the trial court; however, an appellate court may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected. [Citation.] The cases equate `substantial rights' with reversible error, i.e., did the error result in a miscarriage of justice? [Citations.]" [Citation.]' [Citation.]" (People v. Christopher (2006) 137 Cal.App.4th 418, 426-427, italics omitted.) To determine whether a particular instruction, lack of instruction, or misinstruction affected defendants' substantial rights, we must consider the merits of the claim. Accordingly, we need not consider separately whether the claim was forfeited by failure to object.
III Imperfect Defense of Others ( Carlos Only)
Carlos contends that the trial court erred by not giving an instruction to the jury, sua sponte, concerning imperfect defense of others. The contention is without merit because the evidence was insufficient to support an instruction and, even assuming the evidence was sufficient, it is not reasonably probable that Carlos would have obtained a better result had the jury been instructed on imperfect defense of others. Page 21 A. Law of Imperfect Defense of Others "[O]ne who kills in imperfect defense of others — in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury — is guilty only of manslaughter." ( People v. Randle (2005) 35 Cal.4th 987, 997.) The threat to which the defendant responds must be imminent, creating danger of harm at that very instant. (See In re Christian S. (1994) 7 Cal.4th 768, 783 [concerning imperfect self-defense].) A trial court has a duty to instruct the jury, sua sponte, on imperfect defense of others, if warranted. ( People v. Randle, supra, at p. 996.) An instruction on a lesser included offense is required only if there is substantial evidence showing that the defendant is only guilty of the lesser offense. ( People v. Breverman (1998) 19 Cal.4th 142, 162.) B. Aider and Abettor Liability Before we discuss the sufficiency of the evidence to support an instruction on imperfect defense of others, we must consider an argument made by the Attorney General. He asserts that the trial court's failure to instruct concerning imperfect defense of others was not error because only Carlos's mental state was relevant to whether he aided and abetted the attempted murders of Osorio and Covington. This assertion is incorrect on the facts of this case and the manner in which the jury was instructed. Aider and abettor liability is of two kinds. "First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also `for any other offense that was a "natural and probable consequence" of the crime aided and abetted.' [Citation.] Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault. [Citation.]" ( People v. McCoy (2001) 25 Cal.4th 1111, 1117.) The mental state requirements differ for the two kinds of aider and abettor liability. As to the intended crime, the relevant mental state is that of the aider and abettor. ( People v. McCoy, supra, 25 Cal.4th at p. 1117 [criminal liability "based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state" (italics in original)].) Under the natural and probable consequences theory, however, aider and abettor liability is based on whether the defendant aided and abetted the actual crime, including mental state, committed by the accomplice. ( People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) Here, the jury was instructed on both kinds of aider and abettor liability. Therefore, Carlos's jury may have found Carlos, who did not shoot at the Pontiac, guilty of the attempted murders of Osorio and Covington based on the natural and probable consequences theory. As a result, the mental state of Sergio and Jorge when they shot at the Pontiac was relevant to whether Carlos committed the crime of attempted murder. C. Sufficiency of Evidence to Support Instruction Although the mental state of Sergio and Jorge was relevant to whether Carlos committed attempted murder under the natural and probable consequences theory, the evidence was insufficient to justify a jury instruction concerning imperfect defense of others, which negates malice. Sergio testified that Carlos was beaten nine months before this incident. As a result, Carlos received brain damage, and Sergio felt responsible for him. Sergio carried a gun in order to be able to protect Carlos. Sergio stated that, when the Toyota which Carlos was driving and in which Sergio was riding approached the Pontiac, the Pontiac blocked the intersection and Osorio exhibited gang signs and shouted at them. Sergio thought the occupants of the Pontiac were going to get out of the car, so Sergio tried to scare them away with his gun. He was afraid that Carlos would get hurt again. This evidence is insufficient to establish that Sergio believed harm to Carlos was imminent. He did not say that Covington or Osorio was aiming or threatening to aim a gun. They were not getting out of the car to attack Carlos, even if Sergio was afraid they might. "Fear of future harm — no matter how great the fear and no matter how great the likelihood of the harm — will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury. `"[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with." . . . [] This definition of imminence reflects the great value our society places on human life.' [Citation.] Put simply, the trier of fact must find an actual fear of an imminent harm. Without this finding, imperfect self-defense is no defense." ( In re Christian S., supra, 7 Cal.4th at p. 783, italics in original.) Even though this quote comes from a case involving imperfect self-defense, there is no reason to differentiate between imperfect self-defense and imperfect defense of others with respect to the reality of the actor's belief and the imminence of the danger. Accordingly, the evidence was insufficient to support an instruction concerning imperfect defense of others, and the trial court did not err by not giving such an instruction. D. Lack of Prejudice Even if there was substantial evidence that Carlos aided and abetted Sergio or Jorge, who had an unreasonable belief in the necessity of defending Carlos, any error in failing to give the instruction was harmless. "Any error in failing to instruct on imperfect defense of others is state law error alone, and thus subject, under article VI, section 13 of the California Constitution, to the harmless error test articulated in People v. Watson (1956) 46 Cal.2d 818, 836." ( People v. Randle, supra, 35 Cal.4th at p. 1003.) Here, the trial court instructed the jury concerning imperfect self-defense, using general language referring to the "necessity to defend against imminent peril to life or great bodily injury. . . ." (CALJIC No. 5.17.) Under the facts of this case, there is no real difference between imperfect self-defense and imperfect defense of others because Carlos, Sergio, and Jorge were all in the same position — that is, in a car in proximity to another car occupied by members of an opposing gang. Carlos argues that there is a difference between self-defense and defense of others because Sergio and Jorge were armed, while Carlos was not. Because of this fact, "Sergio and [Jorge] did not necessarily fear death and great bodily injury. . . ." This argument seems to suggest that, because they were armed, Sergio and Jorge were impervious to the type of attack they may have feared would come from Covington and Osorio. The argument makes no sense on the facts of this case. Covington and Osorio never got out of the car, at least not until after the crash. Therefore, the only possible threat would have been if Covington and Osorio were to shoot at Carlos, Sergio, and Jorge. Thus, the three were equally vulnerable. Therefore, given the fact that Carlos's jury did not find imperfect self-defense, it is unreasonable to conclude that the jury would have found imperfect defense of others had an instruction on that theory been given.
Carlos focuses on Sergio's in-court testimony, which is appropriate because the statements that Sergio and Jorge gave to police were not introduced into evidence for consideration by Carlos's jury.
IV CALJIC No. 8.41 ( Carlos Only)
Carlos contends that the trial court erred by failing to instruct the jury, sua sponte, concerning what circumstances negate malice and turn an attempted murder into an attempted voluntary manslaughter. He claims the trial court should have instructed using CALJIC No. 8.41, which states: "There is no malice aforethought if the killing or attempted killing occurred upon a sudden quarrel or heat of passion or in the actual but unreasonable belief in the necessity to defend oneself or another person against imminent peril to life or great bodily injury." We conclude the trial court did not err by failing to instruct using CALJIC No. 8.41 because the evidence was insufficient to support the instruction. In any event, we conclude error, if any, in not giving the instruction was harmless. A. Legal Background "The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. [Citations.] That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. [Citations.] To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial — that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. [Citations.]" ( People v. Blair (2005) 36 Cal.4th 686, 744-745.) Attempted voluntary manslaughter is a lesser included offense of attempted murder. (See People v. Montes (2003) 112 Cal.App.4th 1543, 1545.) "Statutory" attempted voluntary manslaughter arises "upon a sudden quarrel or heat of passion." (§ 192, subd. (a).) "Nonstatutory" attempted voluntary manslaughter arises where there is a genuine but unreasonable belief in the need to defend against imminent peril to life or great bodily injury. (See People v. Saille (1991) 54 Cal.3d 1103, 1107, fn. 1.) In either case, the circumstances negate malice, even if the defendant intended to kill. (See People v. Blakeley (2000) 23 Cal.4th 82, 87-88.) B. Sufficiency of Evidence 1. Sudden Quarrel or Heat of Passion "The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. As [the Supreme Court] explained long ago in interpreting the same language of section 192, `this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,' because `no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]" ( People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.) As the trial court instructed the jury, "[a] defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation." (See CALJIC No. 8.42.) Here, the evidence was insufficient, as a matter of law, to support an instruction concerning whether malice was negated by a sudden quarrel or heat of passion. Carlos and his accomplices may have actually been insulted by Osorio's shouting of his own gang affiliation, but only the hypersensitivity to such matters engendered in gang culture would cause a heat of passion sufficient to kill or attempt to kill. In other words, such passion would not have been aroused in the mind of an ordinarily reasonable person. Such hypersensitivity is neither common to the reasonable person nor defensible as a public policy matter. (See People v. Steele, supra, 27 Cal.4th at pp. 1252-1253.) 2. Unreasonable Belief in Need to Defend The evidence was also insufficient to support an instruction concerning whether malice was negated because Carlos and his accomplices had an actual but unreasonable belief in the necessity of defending. As noted above, they were not in imminent peril. C. Lack of Prejudice In any event, even if the trial court erred by not giving CALJIC No. 8.41 to the jury, the error was harmless because (1) another instruction apprised the jury that heat of passion or imperfect self-defense negates malice and (2) the evidence potentially negating malice was insubstantial. Any error in instructing concerning what circumstances negate malice as to an attempted murder is state law error only. Therefore, the state law standard of prejudice applies — that is, we ask whether it is reasonably probable that Carlos would have obtained a more favorable result had the instruction been given. ( People v. Randle, supra, 35 Cal.4th at p. 1003.) The trial court instructed the jury, using CALJIC No. 8.40, that heat of passion or unreasonable self-defense and defense of others negates malice with respect to a killing, even though the instruction was not given as to an attempted killing. Having been instructed, therefore, that heat of passion or unreasonable self-defense and defense of others negates malice, it is unlikely that the jury would have found that Carlos acted with malice in the attempted killing of Covington and Osorio even if the jury found that Carlos acted in the heat of passion or in imperfect self-defense. As noted above, the evidence that Carlos acted, or aided and abetted another in acting, in imperfect defense of others was insubstantial. The evidence that imperfect self-defense negated malice was also weak. Carlos and his accomplices were not in a position of imminent peril. Likewise, the evidence that supported a finding of heat of passion, with its objective element, was not strong. It is unlikely that the jury would Page 31 have found that a reasonable person would have been sufficiently inflamed by the situation to attempt to kill.
The Attorney General expresses doubt concerning whether CALJIC No. 8.41, which was added to CALJIC in 2004, was even available for use in this 2004 trial. We need not resolve the doubt because we conclude it was unnecessary to give the instruction.
Carlos argues that the fact that he was beaten by Norteños gang members nine months earlier is relevant to whether he acted in the heat of passion. There is here, however, no evidence that Covington or Osorio participated in that beating or that Carlos believed they were involved.
As given, CALJIC No. 8.40 concerning negation of malice as to a killing states, in pertinent part: "There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion or in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury."
Carlos notes that the green jury (trying Sergio and Jorge) asked the court whether CALJIC No. 8.40 also applied to attempted killing. The gold jury (trying Carlos), however, did not ask and, therefore, was left to wonder, according to Carlos. As we see it, the fact that the green jury correctly surmised that CALJIC No. 8.40 could be applied to an attempted killing further establishes that there was no prejudice in not giving CALJIC No. 8.41.
V Gang Enhancement Instruction ( All Defendants)
All three defendants contend that the jury instruction on the criminal street gang enhancement was improper because it did not conform with the statutory definition of the "primary activities" of a criminal street gang. We conclude that, even though the instruction was flawed, any error was harmless. A. Primary Activities The juries found defendants committed the crimes for the benefit of a criminal street gang, which resulted in sentence enhancements. (§ 186.22, subd. (b).) "To trigger the gang statute's sentence-enhancement provision (§ 186.22, subd. (b)), the trier of fact must find that one of the alleged criminal street gang's primary activities is the commission of one or more of certain crimes listed in the gang statute." ( People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) B. Wording of the Instruction The trial court's instruction with respect to the definition of a criminal street gang and the primary activities requirement stated: "`Criminal street' gang means any ongoing organization, association, or group of three or more persons, whether formal or informal, (1) having as one of its primary activities the commission of one or more of the following criminal acts, murders, attempted murders, shootings and assaults, (2) having a common name or common identifying sign or symbol and (3) whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. . . ." Of the four enumerated activities (murders, attempted murders, shootings, and assaults) in the jury instruction, only two are among the 25 enumerated crimes in the gang enhancement statute — murders and attempted murders. (§ 186.22, subd. (e)(3).) Assault with a deadly weapon is an enumerated offense (§ 186.22, subd. (e)(1)), but simple assault is not. Likewise, shooting at an inhabited dwelling or occupied vehicle and shooting from a vehicle are enumerated offenses (§ 186.22, subd. (e)(5) (6)), but simple shooting is not. Therefore, the instruction concerning what primary activities support a criminal gang enhancement was insufficiently precise. C. Lack of Prejudice Defendants and the Attorney General disagree concerning what standard applies to determining whether the flawed instruction was prejudicial. The defendants assert that the federal Chapman standard applies, requiring the court to determine whether the error was harmless beyond a reasonable doubt, while the Attorney General claims that the state Watson standard applies, which asks whether it is reasonably probable that the defendant would have obtained a more favorable result in the absence of error. We need not resolve the dispute because the error was harmless under either standard. The prosecution provided expert testimony concerning the activities of the Sureños criminal street gang. Detective Ronald Aurich testified that the Sureños gangs' "primary activities are assaults. That could be with weapons versus bats, beer bottles, knives, guns, drive-by shootings, murder." The parties stipulated that three Sureños members were convicted of murder and attempted murder. Detective Aurich testified that they killed a Norteños gang member. Considering this uncontradicted expert evidence and stipulation, it is unreasonable to conclude that the jury would not have found the requisite primary activities in determining the truth of the gang enhancement if the instruction had been more precise. There is nothing in the record to rebut the evidence that the primary activities of the Sureños included murder, attempted murder, and assault with a deadly weapon. (See § 186.22, subd. (e)(1) (3).) Defendants assert, however, that, because there was evidence of other Sureños activities not listed as primary activities in the gang enhancement statute, the jury may have found true the gang enhancement based on those unlisted activities. For example, Carlos argues: "The jury had ample reason to conclude that assaults with the fist were primary activities of the Sureños." Even if assaults with the fists were primary activities of the Sureños, however, the evidence is inescapable that murder, attempted murder, and assault with a deadly weapon were also primary activities. Accordingly, the error in listing the primary activities in the jury instruction was harmless under either standard.
Although attempted murders are not themselves listed in section 186.22, subdivision (e), an attempt to commit any of the listed crimes is sufficient to establish the primary activities requirement. (People v. Vy (2004) 122 Cal.App.4th 1209, 1227.) Defendants assert that People v. Vy was wrongly decided. We decline the invitation to reassess this precedent because, as discussed below, any error in the wording of the jury instruction was harmless beyond a reasonable doubt.
Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705].
VI Penal Code Section 12022.53 ( Carlos Only)
As to each offense of which Carlos was convicted, the jury found that a principal personally used a firearm and personally discharged a firearm pursuant to section 12022.53, subdivisions (b), (c), (e)(1). Carlos contends that these firearm Page 35 findings should be stricken as to shooting at an occupied vehicle (count four) and permitting a passenger to shoot from a vehicle (count five) because section 12022.53 does not apply to those crimes. We agree. Although the findings must be stricken as to those two counts, it has no effect on the sentence. The term for the section 12022.53 enhancement was stayed as to those counts. Subdivision (a) of section 12022.53 provides a list of crimes to which the firearm enhancements of that section apply. It states: "This section applies to the following felonies. . . ." Although the list includes attempted murder (§ 12022.53, subd. (a)(1) (18)), it does not include shooting at an occupied vehicle (count four) or permitting a passenger to shoot from a vehicle (count five). Therefore, it was improper to have the jury make findings concerning whether the facts supported true findings of section 12022.53 enhancements as to counts four and five. The Attorney General agrees that subdivisions (b) and (c) of section 12022.53 are inapplicable to counts four and five Page 36 because the crimes charged in those counts are not listed in subdivision (a). However, he argues that subdivision (e)(1) has a broader application and applies to counts four and five. We disagree because the statute is explicit concerning the crimes to which it applies. While subdivisions (b) and (c) of section 12022.53 provide enhancements when a perpetrator personally uses or discharges a firearm, subdivision (e)(1) extends the scope of those enhancements to principals who did not personally use or discharge a firearm if two conditions are met: (1) "The person violated subdivision (b) of Section 186.22 [the criminal street gang statute]." And (2) "Any principal in the offense committed any act specified in subdivision (b), (c), or (d)." Therefore, even though Carlos did not personally use or discharge a firearm in committing the attempted murders, the Attorney General argues that the enhancements found in subdivisions (b) and (c) apply to Carlos because (1) he violated the criminal street gang statute and (2) Sergio and Jorge personally used and discharged firearms. The Attorney General's argument for applying subdivision (e)(1) of section 12022.53 to Carlos with respect to counts four and five is based on the introductory wording of subdivision (e)(1), which states: "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense. . . ." Apparently, the Attorney General believes that subdivision (e)(1) applies to the commission of any offense, regardless of whether the offense is one of the felonies listed in subdivision (a). This interpretation of the statute, however, would contradict subdivision (a), which specifically lists the felonies to which the section applies. Accordingly, the Attorney General's argument is without merit because it would render the statute internally inconsistent. ( People v. Trevino (2001) 26 Cal.4th 237, 245-246 [we must give effect to words used by Legislature].)
Section 12022.53, subdivision (b) states, in pertinent part: "[A]ny person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years."
Subdivision (c) states, in pertinent part: "[A]ny person who, in the commission of a felony specified in subdivision (a personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years."
Subdivision (e)(1) states: "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)."
The abstract of judgment did not reflect the section 12022.53 enhancement for counts four and five. Therefore, it is unnecessary to order an amendment to the abstract.
VII Second Degree Felony Murder Instruction ( Sergio and Jorge)
Sergio and Jorge contend that their convictions for second degree murder must be reversed because the jury instructions erroneously allowed the jury to convict them of second degree felony murder in a provocative act case. We conclude the trial court erred by instructing the jury concerning second degree felony murder under the circumstances of this case because the direct cause of Rocky's death was the act of Covington, not one of the defendants here. A. Law Concerning Provocative Act Causation and Felony Murder The trial court properly instructed the jury that "[a] homicide committed during the commission of a crime by a person who is not a perpetrator of that crime, in response to an intentional provocative act by a perpetrator of the crime other than the deceased, is considered in law to be an unlawful killing by the surviving perpetrators of the crime." (See CALJIC No. 8.12.) The court further instructed the jury concerning the definition of "intentional provocative act" and how the intentional provocative act doctrine related to implied malice second degree murder. The courts have "applied principles of implied malice murder to situations in which criminal defendants neither kill nor intend to kill, but cause a third party to kill in response to their life-threatening provocative acts. The provocative act murder doctrine was originally conceived as a form of implied malice murder, derived as an offshoot of the felony-murder rule." ( People v. Cervantes (2001) 26 Cal.4th 860, 867.) However, although the provocative act murder doctrine is an offshoot of the felony-murder rule, the felony-murder rule, itself, applies only when the killing is committed by the defendant or an accomplice, not by the third person responding to the provocative act. ( People v. Washington (1965) 62 Cal.2d 777 ( Washington).) In Washington, the Supreme Court stated that "for a defendant to be guilty of murder under the felony-murder rule the act of killing must be committed by the defendant or by his accomplice acting in furtherance of their common design. [Citations.]" ( Id. at p. 783, italics added.) Thus, the felony-murder rule does not apply if the person is killed by the defendant's victim, not by the defendant. Washington involved application of the felony-murder rule when a robber provokes the victim who kills the robber's accomplice. The court stated: "When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen and that the robbery might therefore be regarded as a proximate cause of the killing. . . . [] The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. [Citations.] This purpose is not served by punishing them for killings committed by their victims." ( 62 Cal.2d at p. 781.) B. Felony Murder Instruction The trial court instructed the jury concerning the felony-murder rule, apprising the jury that the defendants are guilty of murder if someone died during the commission of shooting at an occupied vehicle. Under the facts of this case, that instruction was improper under Washington. It had the effect of allowing the jury to find defendants guilty of second degree murder based solely on its conclusion that Rocky died during defendants' commission of shooting at an occupied vehicle. The felony-murder rule instruction given by the court provided: "The unlawful killing of a human being, whether intentional, unintentional, or accidental, which occurs during the commission or attempted commission of as the direct causal result of the crime of willfully, unlawfully and maliciously discharging a firearm at an occupied vehicle is murder of the second-degree when the perpetrator had the specific intent to commit that crime." (See CALJIC No. 8.32.) Thus, even though Rocky died as a result of a provocative act, the instructions allowed the jury to find defendants guilty of second degree murder under the felony-murder theory if it merely concluded that defendants committed the crime of shooting at an occupied vehicle and Rocky died. Even though the jury found defendants guilty of attempted voluntary manslaughter and not attempted murder with respect to Covington and Osorio, it nonetheless found defendants guilty of second degree murder with respect to Rocky's death. C. Prejudice Error in instructing on the elements of the crime is reviewed under the federal harmless error test. "The federal Constitution's Fifth Amendment right to due process and Sixth Amendment right to jury trial, made applicable to the states through the Fourteenth Amendment, require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime. [Citation.] Thus, a trial court's failure to instruct on an element of a crime is federal constitutional error [citation] that requires reversal of the conviction unless it can be shown `beyond a reasonable doubt' that the error did not contribute to the jury's verdict ( Chapman v. California, supra, 386 U.S. at p. 24; People v. Flood (1998) 18 Cal.4th 470, 492-504; see Neder v. United States (1999) 527 U.S. 1, 8-15 [144 L.Ed.2d 35])." ( People v. Sengpadychith, supra, 26 Cal.4th at pp. 324-325, italics omitted.) 41 The Attorney General contends that the trial court's instruction on second degree felony murder was not prejudicial because the jury necessarily found defendants (1) acted with malice and (2) caused Rocky's death. The argument is unconvincing. Although it appears the jury concluded that Rocky's death was a result of defendants' acts, the record does not reflect that the jury necessarily found malice with respect to the second degree murder charge. 1. Malice The Attorney General asserts that a conviction based on the second degree felony-murder rule constitutes a finding of malice because the felony-murder rule "acts as a substitute for implied malice and eliminates the need for the prosecution to establish the mental component required for the offense of murder. [Citations.]" It is true that, in instances where the felony-murder rule is applicable, proof of the intent to commit the underlying felony negates the need to prove malice. "[T]he issue of malice is therefore `wholly immaterial for the purpose of the proponent's case' when the charge is felony murder." ( People v. Dillon (1983) 34 Cal.3d 441, 475.) But this does not overcome the problem that the Supreme Court has held that the felony-murder rule cannot be applied in provocative act situations, such as in this case. ( Washington, supra, 62 Cal.2d 777.) 2. Evidence of Second Degree Murder The Attorney General also contends "there is a firm basis in the record for concluding the second-degree murder verdict was based on a valid ground." While we agree that there was sufficient evidence to convict defendants of the second degree murder of Rocky based on an implied malice provocative act theory, the instructions allowed the jury to avoid finding malice by using the felony-murder rule. The jury's verdicts finding defendants guilty of attempted voluntary manslaughter instead of attempted murder further debunk the Attorney General's assertion that any instructional error was harmless. The attempted manslaughter verdicts reflect that the jury, for some reason, did not find malice in the attempts against Covington and Osorio, as far as Sergio and Jorge are concerned. Although it is possible that the jury nonetheless found malice with respect to Rocky's killing, which would seem inconsistent but would not be a basis for reversal if the jury had been instructed properly ( People v. Avila (2006) 38 Cal.4th 491, 600), it is also possible that the jury did not find malice in Rocky's killing. That conclusion is simply unavoidable and prevents a finding that the instructional error was harmless beyond a reasonable doubt. D. Remand We have concluded, therefore, that the conviction of Sergio and Jorge for second degree murder (count one) must be reversed. Defendants argue, further, that we cannot remand for retrial on that count because there was insufficient evidence to sustain a second degree murder conviction using the felony-murder rule. (See Burks v. United States (1978) 437 U.S. 1, 18 [ 57 L.Ed.2d 1, 14] [no remand for retrial if no valid legal theory left onevidence].) Here, however, the provocative act implied malice theory was supported by substantial evidence and can be tried on remand. E. Other Issues Defendants assert that the instructions allowing the jury to convict them based on the felony-murder rule violated their federal due process rights because they had a state-created liberty interest in not being convicted of felony murder in a provocative act case. We need not consider this contention because, as noted, the murder count must be reversed based on instructional error.
VIII Other Challenges to Second Degree Murder Convictions (Sergio and Jorge)
Defendants raise five additional issues concerning their second degree murder convictions. First, they assert that the second degree felony-murder rule, a judicially-created rule, unlike the statutory first degree felony-murder rule, is unconstitutional. Second, they cannot be convicted of second degree felony murder because the crime of shooting at an occupied vehicle was an assaultive crime that merged with the homicide. Third, the trial court erred by not instructing the jury, sua sponte, on transferred self-defense. Fourth, the trial court's modification of CALJIC No. 8.32 improperly omitted from the jury's consideration the element of causation with respect to the murder count. And fifth, expanding the second degree felony-murder rule to include provocative act killings by a third person deprives defendants of due process of law because it is an unexpected and indefensible expansion of criminal liability. Because we conclude the second degree murder conviction must be reversed, we need not consider these five additional issues.
IX Instructions Concerning Attempted Manslaughter ( Sergio and Jorge)
Sergio and Jorge contend that their convictions for attempted voluntary manslaughter of Covington and Osorio must be reversed because the trial court's instructions on that crime misled the jury into believing a person could commit attempted voluntary manslaughter without an intent to kill. The Attorney General concedes the instructions were erroneous but maintains that (1) any error was harmless and (2) defendants cannot complain of the error because it inured to their benefit. We conclude that the attempted voluntary manslaughter convictions must be reversed. A. Instructional Error The problem in defining attempted voluntary manslaughter arose because the trial court did not separately instruct the jury on the elements of that crime. The court instructed the green jury (the jury trying Sergio and Jorge) on the elements of voluntary manslaughter, telling the jury that it could base a voluntary manslaughter conviction on either (1) intent to kill or (2) conscious disregard for life. (See CALJIC 8.40.) The court also instructed on the two elements of an attempt to commit a crime — "namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (See CALJIC No. 6.00.) While the court instructed the jury on attempted murder, it did not instruct on attempted voluntary manslaughter. During its deliberations, the green jury sent the trial court a note asking about attempted voluntary manslaughter: "Is it appropriate to take the definition of attempt [citation to the instructions] and the definition of manslaughter [citation to the instructions] and combine the two definitions to arrive at the definition of `attempted voluntary manslaughter'. If not, could we please have the definition of `attempted voluntary manslaughter.'" The court answered, "The answer is affirmative to the first portion of the question. See Instructions [CALJIC Nos.] 6.00 and 8.40." The problem with the trial court's answer is that, although a jury can convict of voluntary manslaughter on a showing of either (1) intent to kill or (2) conscious disregard for life, it must find intent to kill to convict of attempted voluntary manslaughter. A conviction for attempted voluntary manslaughter may not be predicated on a finding, alone, that the defendant had a conscious disregard for life. ( People v. Montes, supra, 112 Cal.App.4th at pp. 1549-1550.) An attempt to commit a crime must be done with the specific intent to complete that crime. Thus, even though an intent to kill is not necessarily an element of voluntary manslaughter, it is an element of attempted voluntary manslaughter. ( Ibid.) For these reasons, it was error for the trial court to tell the jury that the jury could combine the definition of attempt with the elements of voluntary manslaughter to arrive at a definition of attempted voluntary manslaughter. B. Prejudice The Attorney General and defendants do not agree concerning the proper test to be applied to determine whether the error in instructing the jury concerning attempted voluntary manslaughter was harmless. The Attorney General argues we must apply the state test, which asks whether it is reasonably probable that defendants would have obtained a better result. (See People v. Watson, supra, 46 Cal.2d at p. 836.) Defendants assert that the instructional error violated their federal constitutional rights and, therefore, the more exacting harmless-beyond-a-reasonable-doubt standard applies. (See Chapman v. California, supra, 386 U.S. 18.) We need not resolve the dispute because it appears the error was prejudicial under either standard. Even under the more lenient state standard, the error was prejudicial. The prejudice here is found in the possibility that the jury convicted defendants of attempted voluntary manslaughter having found no intent to kill but instead simply a conscious disregard for life. The act of shooting at an occupied vehicle does not, of itself, necessarily establish an intent to kill. Although there was evidence that one or more bullets hit the car occupied by Covington and Osorio and therefore Sergio and Jorge were shooting at the vehicle, or at least in the direction of the vehicle, the jury was not required on this evidence to find that Sergio and Jorge intended to kill. We therefore conclude that the error in instructing the jury was prejudicial. C. Defendants' Right to Raise Issue The Attorney General additionally argues that, even though the instructions were erroneous with respect to the elements of attempted voluntary manslaughter, Sergio and Jorge are not entitled to raise this argument because the instruction on attempted voluntary manslaughter inured to their benefit. We disagree. The precedent cited by the Attorney General does not support his argument. To make his argument, the Attorney General relies, primarily, on People v. Lee (1999) 20 Cal.4th 47. In Lee, the trial court instructed the jury on murder and voluntary manslaughter, citing malice as the main difference between the two crimes. After the jury found the defendant guilty of voluntary manslaughter, the defendant argued on appeal that he was guilty either of murder or of nothing at all because the evidence did not support a finding that he lacked malice. The Supreme Court rejected the argument: "It has long been the rule in this state that, in the absence of prejudice, a defendant may not complain of error favorable to the defendant, including the giving of correct, but inapplicable, instructions and return of a verdict of an offense less than that which the evidence shows." ( 20 Cal.4th at p. 57.) We emphasize here that Sergio and Jorge are not arguing that their convictions for attempted voluntary manslaughter should be reversed because the evidence necessarily establishes malice. That argument would be precluded by Lee. Instead, they argue that a flawed instruction on attempted voluntary manslaughter prejudiced them because it allowed the jury to base convictions for attempted voluntary manslaughter on a finding that defendants had a conscious disregard for life. The Attorney General argues: "[Sergio and Jorge] received the benefit of an attempted voluntary manslaughter instruction which was unwarranted based on the evidence, . . . and they may not obtain a reversal based on an error favorable to them." The problem with this argument and the Attorney General's reliance on Lee is that the instruction on attempted voluntary manslaughter was incorrect, unlike the instruction on voluntary manslaughter in Lee. We may agree, as discussed above in part IV, that the evidence did not support a defense of sudden heat of passion or unreasonable belief in the need to defend, theories that would negate malice. Nevertheless, even assuming defendants would have been precluded from arguing that a correct instruction on attempted voluntary manslaughter should not have been given, there is nothing in the law that precludes them from arguing that the attempted voluntary manslaughter instruction was flawed and caused prejudice. Accordingly, having concluded that Sergio and Jorge were prejudiced by an incorrect instruction concerning attempted voluntary manslaughter, we must reverse their convictions of attempted voluntary manslaughter (counts two and three) and remand for retrial.
Using CALJIC 8.40, the court instructed the jury, in pertinent part, as follows: "Every person who unlawfully kills another human being without malice aforethought but either with an intent to kill, or with conscious disregard for human life, is guilty of voluntary manslaughter in violation of Penal Code section 192, subdivision (a)."
Jorge asserts that the abstract of judgment fails to indicate how the terms imposed for attempted voluntary manslaughter are to run in relation to the term imposed for second degree murder. Because we reverse those convictions, we need not consider this assertion.
X Availability of Witness ( Jorge)
Jorge contends that (1) the prosecutor committed prejudicial misconduct by entering into a "slow plea" agreement with Covington, thus failing to make Covington available as a witness, and (2) the prosecutor committed misconduct and the trial court erred by not granting Covington use immunity so that he could testify in Jorge's trial. The contentions are without merit. A. Background Covington was originally charged in the same information as Carlos, Sergio, and Jorge. The counts against Covington alleged murder, vehicular manslaughter, and felony hit and run. The prosecutor and Covington negotiated a slow plea on the vehicular manslaughter and hit and run counts, along with a probation violation in connection with these crimes, in exchange for a sentence of seven years four months in state prison and dismissal of the murder charge. After Covington entered the slow plea and the court found him guilty, the prosecutor filed an amended information deleting Covington as a defendant and adding him as a victim of attempted murder. Counsel for Covington stated that Covington intended to appeal his conviction and would assert his Fifth Amendment rights if he were called to testify in this case. Counsel for Jorge objected to the slow plea arrangement for Covington because it did not make him available as a witness, whereas a guilty or no contest plea would have rendered Covington unable to assert his Fifth Amendment rights. Counsel for Jorge asserted that allowing Covington to enter a slow plea violated Jorge's confrontation rights and amounted to suppression of evidence by the prosecution. Therefore, argued counsel, the trial court was required either to require Covington to waive his appellate rights as a condition of entering the slow plea or to continue Jorge's trial until after Covington's appeal was final. The trial court denied these requests. During the trial of the three codefendants, counsel for Jorge attempted to call Covington as a witness, but Covington asserted his Fifth Amendment rights. Counsel for Jorge requested the court either to order the prosecutor to grant Covington use immunity or to instruct the jury that the prosecution had suppressed evidence. The court declined. B. Legal Analysis 1. Slow Plea Agreement We reject Jorge's argument that the prosecutor committed prejudicial misconduct by entering into an agreement with Covington whereby he would enter a slow plea because (1) there is no evidence in this record that Covington would have pled guilty or no contest and thus have become available as a witness in the absence of the slow plea agreement and (2) it is not reasonably probable that Jorge would have obtained a more favorable result. An unstated premise of Jorge's argument concerning prosecutorial misconduct is that, if the prosecution had refused to agree to the slow plea, Covington would have pled guilty or no contest and would have become available as a witness, unable to assert his Fifth Amendment rights. We reject this premise because there is nothing in this record to support it. Covington could not preserve for appeal the issue of the sufficiency of the evidence to convict him if he pled guilty or no contest. In the absence of the slow plea, Covington's choice of whether to plead guilty or no contest or to go to trial on the charges is unknown. Since the prosecution could not force Covington to plead guilty or no contest, the prosecution did not suppress evidence. We also conclude that, even if we were to find that the prosecution had control over whether Jorge would plead guilty or no contest, there is no prejudice. Jorge and the Attorney General disagree as to what standard we must apply in determining whether the prosecutor committed prejudicial misconduct in suppressing Covington's potential testimony. Jorge contends that the proper standard is found in United States v. Valenzuela-Bernal (1982) 458 U.S. 858 [ 73 L.Ed.2d 1193] ( Valenzuela-Bernal), while the Attorney General asserts that the proper standard is found in California v. Trombetta (1984) 467 U.S. 479 [ 81 L.Ed.2d 413]. Although Valenzuela-Bernal concerned the loss of a deported witness and Trombetta involved the loss of physical evidence, we note the United States Supreme Court now applies the Trombetta standard to the loss of both physical evidence and witnesses. (See Kyles v. Whitley (1995) 514 U.S. 419, 433-434, 441-445 [ 131 L.Ed.2d 490, 505-506, 510-513].) We will thus do the same. (See People v. Lopez (1988) 198 Cal.App.3d 135, 144-146 [Court of Appeal, Fourth Appellate District, applying Trombetta standard to determine materiality of deported witnesses]; but cf. People v. Valencia (1990) 218 Cal.App.3d 808, 811 [Court of Appeal, Fifth Appellate District, applying Valenzuela-Bernal standard to determine materiality of deported witnesses].) "`Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.' ( California v. Trombetta, supra, 467 U.S. 479, 488-489 [ 81 L.Ed.2d 413], italics added.) More recently, the high court held that `unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.' ( Arizona v. Youngblood (1988) 488 U.S. 51, 58 [ 102 L.Ed.2d 281, 289].)" ( People v. Webb (1993) 6 Cal.4th 494, 519.) First, we find no bad faith on this record. Jorge would have us infer from the prosecutor's slow plea agreement with Covington an intention to deprive him of Covington's testimony. He states: "Other than an intent to deprive the defendants of the opportunity to call Covington as a witness, there is no discernible reason for the prosecutor's actions." We disagree. This record gives us no reason to believe that Covington would have pled guilty or no contest if he had not been offered the slow plea. Accordingly, finding bad faith in the prosecutor's actions is speculative, at best. And second, the exculpatory value of Covington's testimony is dubious. Osorio testified, giving an eyewitness account from the perspective of one of the men at whom Sergio and Jorge fired. Other than claiming that the jurors should have had a chance to "eyeball" the "Old Gangster," — Covington, that is — Jorge speculates that questioning Covington concerning his motives and reasons for his actions may have swayed the jury or that Covington's answers to questions may have differed from Osorio's. This is nothing more than speculation and fails to support a finding that Jorge's constitutional rights were violated. 2. Use Immunity The refusal of the prosecutor and the court to grant Covington use immunity was not an abuse of discretion and also does not support reversal of Jorge's convictions. The decision to grant use immunity is vested in the prosecutor. ( Daly v. Superior Court (1977) 19 Cal.3d 132, 146.) Therefore, the contention that the trial court somehow erred in failing to force the prosecution to grant Covington use immunity so that he could be required to testify is without merit. As to the prosecutor's decision not to grant use immunity, we also find no error. Under Ninth Circuit jurisprudence, cited by Jorge, "the prosecution's refusal to grant use immunity to a defense witness denies the defendant a fair trial only when (1) the witness's testimony would have been relevant, and (2) the prosecution refused to grant the witness use immunity with the deliberate intention of distorting the fact-finding process. [Citation.]" ( Williams v. Woodford (9th Cir. 2004) 384 F.3d 567, 600.) While Covington's testimony would have been relevant, there is no indication in this record that the prosecution refused to grant Covington use immunity with the deliberate intention of distorting the factfinding process. As noted above, Osorio testified and, therefore, Covington's testimony would have been cumulative in most ways. Furthermore, there is nothing but speculation concerning what Covington's testimony might have added, or that the prosecutor knew of testimony Covington could have added in this trial. Accordingly, we conclude the prosecutor did not commit misconduct and Jorge's fair trial rights were not violated.Personal Discharge Enhancements ( Sergio and Jorge)
Sergio and Jorge contend that the enhancements pursuant to section 12022.53, subdivision (d) attached to counts one (murder) and four (shooting at an occupied vehicle) must be reversed because there was insufficient evidence to conclude that their shooting at Covington and Osorio caused Rocky's death. We conclude the evidence was sufficient.
Although we must reverse the second degree murder convictions (count one), we conclude the evidence was sufficient to support the enhancements pursuant to section 12022.53, subdivision (d), which, therefore, may be retried along with the murder count. As to count four, which we do not reverse, no retrial on this enhancement is necessary.
"Section 12022.53, also known as the `10-20-life' law (Assem. Bill No. 4 (1997-1998 Reg. Sess.)), was enacted in 1997 to substantially increase the penalties for using firearms in the commission of enumerated felonies. . . . [Citations.] The statute prescribes sentence enhancements (prison terms of 10 years, 20 years, and 25 years to life) for increasingly serious circumstances of firearm use. [Citations.]. . . Subdivision (d), the provision at issue here, requires imposition of an additional, consecutive 25-years-to-life term when the defendant `personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice. . . .' [Citations.]" ( People v. Palmer (2005) 133 Cal.App.4th 1141, 1148-1150 [ 35 Cal.Rptr.3d 373].) Subdivision (d) of section 12022.53 specifically applies to both murder and shooting at an occupied vehicle.
Sergio and Jorge assert that subdivision (d) of section 12022.53 is not applicable to this case because (A) the statute was intended to apply only to death by bullet or gunshot and (B) their personal discharge of firearms did not proximately cause Rocky's death. Neither assertion is persuasive.
While section 12022.53, subdivision (d) also includes great bodily injury, we limit our discussion to death proximately caused by personal and intentional discharge of a firearm because Rocky died.
A. Death by Bullet or Gunshot
Defendants base their argument that subdivision (d) of section 12022.53 was intended to apply only to death by bullet or gunshot on (1) the language of the statute, (2) the legislative history associated with the statute, and (3) a survey of published cases.
1. Language of the Statute
Contrary to defendants' suggestion, the language of the statute does not support their view that the statute applies only to death by bullet or gunshot. The statute applies, by its terms, to personal and intentional discharge of a firearm which "proximately causes . . . death." (§ 12022.53, subd. (d).) The Legislature could have, but did not, state that the statute applies when a defendant shoots someone, causing that person's death. Instead, the statute is worded much more broadly, setting up proximate cause as the required nexus between the personal discharge and the death. ( People v. Bland (2002) 28 Cal.4th 313, 337 [ 121 Cal.Rptr.2d 546, 48 P.3d 1107].)
The holding in Palmer supports this broader definition of criminal liability. In Palmer, a police officer broke his ankle diving out of the way as the defendant shot at him. The court held that "a defendant can proximately cause injury by discharging a firearm within the meaning of section 12022.53, subdivision (d) even if his or her bullet does not actually strike the victim." (People v. Palmer, supra, 133 Cal.App.4th at p. 1150, original italics.) "[S]ection 12022.53 [, subdivision] (d) does not require that the defendant fire a bullet that directly inflicts the harm." ( People v. Bland, supra, 28 Cal.4th at p. 338.) Accordingly, we reject defendants' assertion that the language of the statute precludes its application to the facts of this case.
2. Legislative History
The legislative history argument is likewise unavailing. Defendants assert generally, without directing us to any specific components, that the analyses of the bill enacting section 12022.53 in 1997 and the language of the bill amending that section in 1998 show that the Legislature intended that the discharge of the firearm must, in defendants' words, "directly cause the death" in order to impose the enhancement. It is unnecessary to quote all of the analyses and bills because nowhere in those analyses and bills does the Legislature exhibit an intent to limit the broad language of the statute, discussed above.
3. Published Cases
Defendants argue: "A survey of the published case law reveals that section 12022.53, subdivision (d) has almost universally been applied only in cases where the death or injury was directly caused by a gunshot." (Italics added.) This argument fails because it admits that there is no universal application only to death by gunshot. As defendants discuss in their argument, Palmer held that the bullet need not hit the victim. ( People v. Palmer, supra, 133 Cal.App.4th at p. 1150.) That there are some cases, applying section 12022.53, subdivision (d), in which the victim was shot by the defendant does nothing in logic or reason to prove that the subdivision can be applied only in such cases. We therefore move on to the argument that defendants' discharge of the firearms did not proximately cause Rocky's death.
B. Proximate Causation
Defendants contend that there was an insufficient nexus between their personal discharges of firearms and Rocky's death to find that the discharges proximately caused the death. We conclude that the nexus was sufficient under the facts of this case.
Using CALJIC No. 17.19.5, which correctly defines proximate causation for the purpose of applying section 12022.53, subdivision (d) ( People v. Bland, supra, 28 Cal.4th at p. 336), the court instructed the jury: "A proximate cause of great bodily injury or death is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the great bodily injury or death and without which the great bodily injury or death would not have occurred."
"An intervening, superseding cause can relieve a defendant of criminal liability if the act `break[s] the chain of causation' ( People v. Wattier (1996) 51 Cal.App.4th 948, 953 [ 59 Cal.Rptr.2d 483]) and the defendant's act is no longer a substantial factor in producing the injury." ( People v. Burnett (2003) 110 Cal.App.4th 868, 877 [ 2 Cal.Rptr.3d 120].) In Burnett, the defendant grabbed a dog from its owner's lap and threw it into the street. Dazed and confused, the dog wandered into the path of a minivan and was killed. ( Id. at p. 870.) The Burnett court determined that, even though the dog wandered into the path of the minivan, the dog's actions and the passing of the minivan were not superseding factors and the defendant was criminally liable for the dog's death because it was foreseeable that a vehicle would pass by while the dog was in the street. `The natural consequence of defendant's throwing [the dog] onto a dark, heavily traveled road was death from the wheels of a passing vehicle." ( Id. at p. 875.)
Here, the accident that was the immediate cause of Rocky's death was a foreseeable result — a direct, natural and probable consequence — of defendants' discharges of their firearms. They shot at the vehicle occupied by Covington and Osorio. Using the most obvious means of escape available, Covington accelerated rapidly and, still within the zone of danger from defendants' shots, entered Rio Linda Boulevard without stopping or observing whether traffic was approaching. Even after the accident, Covington believed he was in danger of being shot. The victims' flight without regard for traffic laws is as predictable when someone shoots at an occupied vehicle as is a stampede for the door when someone yells "fire" in a crowded theater. Therefore, defendants' personal discharges of their firearms proximately caused Rocky's death, and the enhancement pursuant to section 12022.53, subdivision (d), subjecting defendants to a consecutive sentence of 25 years to life was supported by substantial evidence.
In his reply brief and at oral argument, Jorge claimed that Covington's conviction for vehicular manslaughter was inconsistent with a finding in this case that the shooting by Sergio and Jorge proximately caused Rocky's death. What may or may not be an inconsistent verdict in a different case, however, has no relevance to whether the verdict is supported by substantial evidence in this case. (See People v. Avila (2006) 38 Cal.4th 491, 600 [ 43 Cal.Rptr.3d 1, 133 P.3d 1076] [inconsistent verdicts not cause for reversal].)
XII Admission of Extrajudicial Statements ( Sergio)
Sergio contends that the trial court violated his Sixth Amendment rights by admitting extrajudicial statements made by Jorge. (See Crawford v. Washington (2004) 541 U.S. 36 [ 158 L.Ed.2d 177] ( Crawford).) We conclude that Sergio forfeited this contention by failing to object to admission of the statements in the trial court. In any event, we conclude that, even if admission of the extrajudicial statements was error, it was harmless beyond a reasonable doubt. "The confrontation clause applies to hearsay statements that are `testimonial' in nature, including statements made during police interrogation. ( Crawford v. Washington, supra, 541 U.S. 36.) Such hearsay may be admitted at trial only if the declarant is unavailable and the defendant has had a previous opportunity to cross-examine the declarant. The high court recently concluded that hearsay statements are testimonial when made in the course of police interrogation and `the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.' ( Davis v. Washington (2006) 547 U.S. 813, [821-823] [165 L.Ed.2d 224].)" ( People v. Ledesma (2006) 39 Cal.4th 641, 709.) On September 8, 2003, before trial, the court discussed with the parties the matter of separate juries, emphasizing the need to comply with constitutional principles concerning admission of a codefendant's statement. (See Bruton v. United States (1968) 391 U.S. 123 [ 20 L.Ed.2d 476] ( Bruton); People v. Aranda (1965) 63 Cal.2d 518 ( Aranda).) Counsel for Sergio agreed that he would work with the prosecutor to determine what would be redacted from Jorge's statements. With this understanding, Sergio waived his right to be tried with a jury separate from Jorge's. On March 8, 2004, still before trial, the United States Supreme Court decided Crawford, supra, 541 U.S. 36. The prosecution's case began a month later, in April 2004. Although Crawford was decided before the trial, it was not discussed during the trial. Neither did Sergio object to any specific evidence based on Bruton or Aranda The statements at issue here were made by Jorge, who did not testify at trial, to an officer during interrogation. Although Jorge's statements presented to the jury were wide-ranging, Sergio focuses on one particular aspect in arguing that the court committed prejudicial error. When Jorge was interviewed by Detective Aurich of the Sacramento County Sheriff's Department, Jorge stated that they (meaning Carlos, Sergio, and Jorge) pulled out of the AM/PM and "followed" or "chased" the "red car" — that is, the Pontiac. These statements that they were following or chasing the red car conflicted with Sergio's testimony that, although they pulled out of the AM/PM onto Jessie Avenue, going in the same direction as the red car, they were not following the red car but instead were simply taking the back streets (not the freeway) to Roseville. The trial court instructed the jury not to consider extrajudicial statements made by one defendant as evidence against the other defendant. The jury was told not to consider evidence admitted for a limited purpose in any way not consistent with the purpose for which it was admitted. On appeal, Sergio contends that the failure to redact the parts of Jorge's statement concerning following or chasing the red car constituted Aranda-Bruton error. He also contends that their admission violated Crawford, despite the fact that there was a limiting instruction given. We reject these contention because Sergio did not make a timely and specific objection to the evidence. A timely and specific objection is required to preserve an evidentiary issue for appeal, including a confrontation clause claim. ( People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19.) Indeed, in Crawford, itself, the defendant made a timely and specific objection. ( Crawford, supra, 541 U.S. at p. 40.) Even assuming that Jorge's statements concerning following or chasing the red car were improperly admitted pursuant to Aranda, Bruton, or Crawford, and that this issue was properly preserved for review, we cannot reverse the conviction for shooting at an occupied vehicle, with its accompanying enhancements, because the error was harmless beyond a reasonable doubt. (See People v. Geier (2007) 41 Cal.4th 555, 608 [applying harmless-beyond-a-reasonable-doubt standard to confrontation clause error].) As to the conviction for shooting at an occupied vehicle, the matter of whether Carlos, Sergio, and Jorge were chasing the red car or happened to simply be going in the same direction out of the AM/PM has little relevance. The evidence, including Sergio's statement and testimony, that Sergio and Jorge shot at the red car is overwhelming. Therefore, Jorge's statements that they were following or chasing the red car were harmless. Sergio claims that Jorge's statements prejudiced Sergio because they made it more likely that the jury would find that the crime was committed for the benefit of a criminal street gang. We disagree. The evidence that Sergio was a Sureños gang member was overwhelming. It was undisputed that Covington and Osorio were Norteños and that Covington yelled at Carlos at the AM/PM. With all of the evidence of gang membership and the exchange between Carlos and Covington, it is not reasonable to conclude that the jury would have found no gang-related reason for Sergio's shooting at the red car if Jorge's statement had been redacted to exclude the comments about following or chasing the red car.XIII Street Gang Enhancements ( Sergio and Jorge)
See footnote, ante, page 1348.
Sergio and Jorge contend that the evidence was insufficient to sustain the finding that the shooting was done for the benefit of a criminal street gang. As just noted, we believe the evidence was not only sufficient, but overwhelming. We reject defendants' argument for three reasons: (A) defendants have forfeited the sufficiency-of-evidence argument by failing to base it on a view of the evidence in the light most favorable to the convictions, (B) in any event, defendants fail to establish insufficiency of the evidence, and (C) a perceived inconsistency between the attempted voluntary manslaughter convictions and the criminal street gang enhancements does not require reversal. A. Failure to Base Argument on Evidence Defendants can make their argument only by mischaracterizing the evidence, by failing to view the evidence in its light most favorable to the judgment. For example, they state: "The Legislature did not intend to punish those who, affiliating themselves with an identifiable group for protection, are attacked and defend themselves from being attacked by one Norteño who was acting to promote his gang. . . . Here, the crimes were committed in reaction to an attack by Julio Covington." This mode of argument amounts to a waiver of the sufficiency-of-evidence contention. "Where the appellant challenges the sufficiency of the evidence, the reviewing court starts with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant's affirmative burden to demonstrate otherwise. [Citations.] The appellant's brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and must show how the evidence does not sustain the challenged finding. [Citations.] If the appellant fails to set forth all of the material evidence, its claim of insufficiency of the evidence is forfeited. [Citations.]" ( Cequel III Communications I, LLC v. Local Agency Formation Com. of Nevada County (2007) 149 Cal.App.4th 310, 329, fn. 7, italics in original.) Therefore, we reject defendants' sufficiency-of-evidence argument because it is flawed in the making. B. Sufficiency of Evidence It also flawed in substance. Proof of the gang enhancement involves two elements: that the crime was (1) "committed for the benefit of, at the direction of, or in association with any criminal street gang," (2) "with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1).) There can be no serious dispute on appeal that (1) Covington and Osorio were Norteños, (2) Carlos, Sergio, and Jorge were Sureños, and (3) Norteños and Sureños generally hate each other and are involved in violence against each other. Covington yelled at Carlos at the AM/PM, identifying himself as a Norteño and insulting Carlos. In return, Carlos yelled an insult. When Sergio and Jorge returned to the car, they left the AM/PM to retaliate for the disrespect, a reasonable inference from the evidence. Gang culture encourages such retaliation to protect the gang's reputation and hurt opposing gang members. When Carlos, Sergio, and Jorge found the Pontiac, they fired on Covington and Osorio. This evidence established that the shooting was done for the benefit of the Sureños because it protected the Sureños gangs' reputation by retaliating for an insult and had the potential to harm opposing gang members. It was done with specific intent to promote the Sureños because Sergio and Jorge knew that Covington and Osorio were Norteños and, for that reason, shot at them. The conclusions were also supported by expert evidence concerning these gangs, their activities, and their motives. The evidence was, therefore, sufficient to sustain the criminal gang enhancements. C. Perceived Inconsistency Between Verdicts and Findings We also reject defendants' additional argument that the criminal street gang enhancement must be reversed because it is inconsistent with the verdict of attempted voluntary manslaughter. Sergio and Jorge assert that "it appears" that the jury convicted them of attempted voluntary manslaughter because the jury found Covington's actions were provocative and aggressive. They also assert "the jury agreed with the defense that [Covington] did not get lost trying to leave the area; rather, [Covington] stayed in the neighborhood to further the fight he started at the AM/PM and that he used his red car in an aggressive manner to assault the blue car in which Jorge, Sergio and Carlos were riding." This is mere speculation. We have no way of knowing why the jury acquitted Sergio and Jorge of attempted murder and found them guilty of the lesser offense of attempted voluntary manslaughter but also convicted them of second degree murder and found true, as to all counts, that they were committed for the benefit of a criminal street gang. It is, simply, an unknown. In any event, the unstated premise that inconsistent verdicts must be resolved on appeal or that they bear some significance to the sufficiency-of-evidence issue is false. "As a general rule, inherently inconsistent verdicts are allowed to stand. [Citations.] For example, `if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both.' [Citations.] Although `"error," in the sense that the jury has not followed the court's instructions, most certainly has occurred' in such situations, `it is unclear whose ox has been gored.' [Citation.] It is possible that the jury arrived at an inconsistent conclusion through `mistake, compromise, or lenity.' [Citation.] Thus, if a defendant is given the benefit of an acquittal on the count on which he was acquitted, `it is neither irrational nor illogical' to require him to accept the burden of conviction on the count on which the jury convicted. [Citation.]" ( People v. Avila, supra, 38 Cal.4th at p. 600.)
DISPOSITION
As to defendant Carlos Zarazua, the judgment is modified to strike the true findings of section 12022.53 enhancements as to counts four and five. As modified, the judgment is affirmed.
As to defendants Sergio Zarazua and Jorge Ramirez, the convictions for second degree murder (count one) and attempted voluntary manslaughter (counts two and three) are reversed and remanded for retrial and resentencing. In all other respects, the judgment is affirmed.
Raye, J., and Butz, J., concurred.
Petitions for a rehearing were denied June 10, 2008, and the opinion was modified to read as printed above. Appellants' petition for review by the Supreme Court was denied August 20, 2008, S164335.