Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 080034-2
Kline, P.J.
Christian T. Alvarez (appellant) was convicted, following a jury trial, of two counts of attempted murder and two counts of discharging a firearm from a motor vehicle. On appeal, he contends (1) irrelevant polygraph evidence was improperly admitted; (2) irrelevant and prejudicial criminal gang evidence was improperly admitted; (3) the trial court’s instruction on attempted murder was incomplete and confusing; and (4) his sentence constitutes cruel and unusual punishment. We shall affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by amended information with two counts of attempted murder (Pen. Code, §§ 187, 664-counts one and two), and two counts of shooting from a motor vehicle (§ 12034, subd. (c)). Counts one and three alleged personal and intentional discharge of a firearm, causing great bodily injury to the victim (§ 12022.53, subds. (b), (c), and (d)); count one further alleged personal infliction of great bodily injury on the victim (§ 12022.7, subd. (a)); and count two alleged personal and intentional discharge of a firearm (§ 12022.53, subds. (b) and (c)).
All further statutory references are to the Penal Code unless otherwise indicated.
Following a jury trial, the jury found appellant guilty on all counts and found true all enhancement allegations.
On June 20, 2008, the trial court sentenced appellant to 52 years, four months to life in state prison.
Also on June 20, 2008, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
Kamar Allen testified that in November and December 2007, he was in his junior year at a “continuation” high school, Riverside High School, in Pittsburg. Henriante Livingston was also a student at Riverside and they both worked at the Pittsburg Community Center. Allen was fired from that job in November 2007 after he left the job site without permission. A few days later, he and some friends returned to the community center and stole a Playstation with two controllers; Allen took one of them to his home. Livingston was present during the theft, but did not participate in it. Later that same day, Livingston came to Allen’s house with Devance Battle, whose aunt ran the community center, and another teenager. Battle asked Allen to return the video game system to him, and Allen gave it to him with the understanding that Battle would not tell anyone Allen had stolen it.
On December 10, 2007, Battle and Livingston confronted Allen at school after the two game controllers were again stolen from the community center, and Allen tried to convince them that he had not taken them. Tempers were flaring and a campus security guard took the three boys to the principal’s office. While there, Allen accidentally dropped a knife that had been hidden in his sweatshirt pocket onto the floor. Battle said Allen was trying to cut them and Livingston choked Allen, pulled his hood over his head, and punched him in the face and head. Allen and Livingston were both suspended from school.
Allen went to the home of a good friend, Anthony Combs, who lived on Williams Way in Pittsburg. When he arrived, Combs’s grandmother and aunt were there. Allen then called Livingston on Livingston’s cell phone and threatened him. Allen also called Combs and told him what had happened at school between him and Livingston. Allen then heard voices outside, and recognized the voices of Battle and Combs’s grandmother. He looked outside and saw Livingston and Battle talking to Combs’s grandmother. Allen called his older brother to come and get him; he also called Combs again to let him know that Livingston and Battle were outside of Combs’s house. Combs said that he was going to send someone over for protection, and Allen went outside to wait. Livingston and Battle were gone by then.
While Allen was waiting, “Christian,” whom he identified at trial as appellant, arrived at the house and said he was going to give Allen a ride home. They left in appellant’s car, “a blue ’83, ’85 Chrysler” or similar type of car. At that time, appellant had shoulder-length black hair and Allen recognized him as someone he had seen a number of times before. Allen got into the passenger seat and appellant drove to the Lido Square Apartments, where Allen lived. Allen saw Livingston and Battle standing near the apartment complex, and appellant asked, “Is that them?” Allen said it was.
Allen had told appellant about his altercation with Livingston and Battle and about them showing up at Combs’s house.
Appellant pulled up right next to Livingston and Battle and flipped up the collar of his coat so that it covered most of his face. Allen saw a black revolver in his hand. Appellant pointed the gun out the window in the direction of both young men, and Battle started running. In response, appellant fired the gun. Livingston started running, too, and appellant fired again in the direction of Livingston; Livingston’s back was to appellant at that point. Allen heard a total of two or three shots. Appellant then tried to turn the car around, and Allen got out of the car and went to his apartment.
A police officer came to Allen’s apartment soon after the shooting and Allen initially identified the shooter as a person named “Derrick,” although he accidentally called him “Chris” a couple of times. He first described the shooter as a Black man, but later said he was Hispanic, with a Hispanic last name, and long black hair. He also told the officer that the shooter hung out on West Boulevard and had recently had a birthday. He thought the man was either a relative or close friend of Combs. Allen identified appellant from a photographic lineup officers subsequently showed to him.
Finally, Allen testified that he was getting the benefit of a plea agreement in exchange for testifying truthfully about what had occurred on December 10, 2007.
Allen had initially been charged in juvenile court in this matter with assault with a deadly weapon and making terrorist threats. He accepted a plea bargain, pursuant to which he agreed to testify truthfully at appellant’s trial and admit a charge of accessory after the fact in exchange for dismissal of the original charges. He had not yet been sentenced when he testified.
Pittsburg Police Detective Joe Reposa testified that the shooting occurred at about 1:00 p.m. on December 10, 2007, and he met with Allen at 3:15 p.m. on that same day. After Reposa told Allen he had been identified as a passenger in the car that had fired shots, Allen admitted that he was in the car. Initially, Allen identified the shooter as someone named Derrick. During questioning, however, he inadvertently called him Chris or Christian several times. Ultimately, Allen acknowledged that the shooter was in fact named Chris or Christian, that he was a Hispanic male who had long, shoulder-length black hair and a slight mustache, that he had a Hispanic surname, and that he spent quite a bit of time on West Boulevard in Pittsburg. Allen also said that the shooter had turned 18 the week before. On May 5, 2008, almost five months after his first interview with Allen, Reposa again met with Allen, and Allen identified appellant as the person who shot at Battle and Livingston.
According to Reposa, Devance Battle had identified Allen as being in the car with the shooter.
The trial court took judicial notice that appellant’s birthday is on December 4.
Henriante Livingston, who was 17 years old in December 2007, testified that, after their altercation in the principal’s office, Kamar Allen called Livingston on his cell phone and said he was going to kill Livingston’s family. Livingston and Devance Battle then went to the Lido Square Apartments to look for Allen. While they were there, a blue car pulled up about three feet from them; Allen was in the passenger seat. The driver had a black hood covering part of his face. Livingston could see that the driver had long black hair, and could have been “Mexican, Puerto Rican or something.” The driver pulled out a revolver and pointed it out the window toward him and Battle, who were standing close together. When the driver started shooting, Livingston started running. He heard a total of three gunshots; the second two came after he started running. Livingston sustained a gunshot wound to the upper left side of his back from a bullet fragment. He received medical treatment at John Muir Hospital in Walnut Creek and was discharged the same day. At trial, he testified that the bullet was still lodged in his back.
At the preliminary hearing, Livingston had testified that the gun was initially pointed at Battle. That testimony was read into the record at trial.
When asked if the driver was in the courtroom, Livingston said he did not know and did not remember what the driver looked like. Livingston had previously selected appellant as the shooter from a photographic lineup and also had identified appellant as the shooter at the preliminary hearing.
Livingston testified that, after the preliminary hearing, he received a phone call in which he was warned not to testify at trial, and told that, if he did so, he would be a snitch. Livingston testified that snitches “get killed, simple as that.” He denied that the person calling him was Anthony Combs and also denied telling his mother that it was Combs. Livingston’s mother later testified that Livingston had told her that Combs told him he would be killed if he testified and that Livingston was afraid of what might happen to him if he testified. Livingston also testified that he quit a job after people came there looking for him about the case.
Telephone records showed that between 12:09 p.m. and 12:58 p.m. on the day of the shooting, there were a total of 25 calls between the land line in Anthony Combs’s house and Livingston’s cell phone, Combs’s land line and Combs’s cell phone, Livingston’s cell phone and Combs’s cell phone, and Combs’s cell phone and appellant’s cell phone. At 1:03 p.m., police were dispatched to the Lido Square Apartments in response to a report of a shooting there.
Defense Case
Appellant, who was 18 years old at the time of trial, testified that in December 2007, he was “between houses” and stayed quite frequently at Anthony Combs’s house on Williams Way. He also stayed sometimes with a man named Jethro at 223 West Boulevard. Kamar Allen was an acquaintance; he had seen Allen several times at Combs’s house.
On December 9, 2007, appellant was at Combs’s house, as was Lola Serna, Combs’s mother. Serna wanted to go back to her own house in Bay Point that night, but appellant thought she might not feel safe there. He therefore decided to spend the night at her house, along with Serna and her boyfriend, “Papa.” He also spent the following day, December 10, at Serna’s house. Several people saw him there, including Combs.
Appellant did not have his cell phone on December 10, 2007, because he had loaned it to his brother. He denied ever having driven a blue American-type car and denied having access to any car in December 2007. He did not know Henriante Livingston or Devance Battle, and he denied any participation in the shooting on December 10.
On cross-examination, appellant denied that he was “in the company of a car” when he was arrested.
Lola Serna, Anthony Combs’s mother, testified that on December 9, 2007, she was at the Williams Way house. When she left to return to her house in Bay Point, appellant went with her. Appellant spent the night at her house, was there all of the next day, spent the night again, and did not leave until the morning of December 11.
Rebecca Flowers, Anthony Combs’s girlfriend, testified that on December 10, 2007, she, Combs, and some other people went to Combs’s mother’s house in Bay Point. Serna, appellant, and Lola’s boyfriend Papa were there when they arrived at around lunchtime. They stayed at Serna’s house for four or five hours. Appellant did not leave the house except to walk to the store with Lola; they left on foot and were gone for 15 to 20 minutes.
Rebuttal
Telephone records from December 10, 2007 showed that at 11:57 a.m., appellant’s cell phone was near a cell tower in Concord when it called Anthony Combs’s house phone. At 12:19 p.m., Lola Serna’s cell phone was near a tower in Bay Point when it called Combs’s house phone. At 12:29, 12:30, and 12:31 p.m., appellant’s cell phone again called Combs’s cell phone while it was near a cell tower in Concord. At about 12:44 p.m., shortly before the shooting, appellant’s cell phone called Combs’s cell phone using a tower near Serna’s house in Bay Point. At 1:47 p.m., approximately 45 minutes after the shooting, appellant’s cell phone called Combs’s cell phone using a tower near the shooting site. That evening, after Combs’s cell phone attempted to call Livingston’s cell phone and went to voicemail, Combs’s cell phone made two calls to area hospitals before again attempting to call Livingston.
Pittsburg Police Detective Joe Reposa testified that 223 West Boulevard-the address at which appellant said he sometimes stayed-was not a street address. The number 223 was a marker on a telephone pole on West Boulevard in Pittsburg that had been adopted by a group of criminals in the West Boulevard area. The numbers 223 also refers to a caliber of ammunition for an assault-type weapon.
Early on the morning of December 11, 2007, Antioch Police Officer Marty Hynes was dispatched to investigate a report of an individual sleeping in a vehicle. At the scene, Hynes found a 1993 blue Ford Taurus. Appellant was asleep inside. Appellant said that the car belonged to his aunt. Hynes arrested appellant, who was in possession of the car’s keys and a cell phone. Appellant’s appearance had changed since the day Hynes arrested him in that he had had almost shoulder-length hair on December 11, 2007 while, at trial, his head was shaved. He also appeared to be heavier at trial than on December 11.
Police seized the cell phone that appellant was carrying and that he said belonged to him. The phone contained a photograph of appellant holding an automatic handgun.
DISCUSSION
I. Admission of Polygraph Evidence
Appellant contends irrelevant polygraph evidence was improperly admitted at trial, in violation of his due process rights.
A. Trial Court Background
At trial, during cross-examination of Kamar Allen, defense counsel asked if Allen had talked to police about the case since he was interviewed on December 10, 2007. After Allen said that he had, defense counsel asked when. Allen responded: “After I had tooken [sic] the polygraph, which was probably about April-I’d say about somewhere around April 20th, maybe.” Defense counsel did not object to Allen’s answer or request that it be stricken from the record.
In addition, the entirety of Allen’s plea agreement was admitted into evidence, without objection by defense counsel. The plea agreement contained, inter alia, the following provisions: “KAMAR DANIEL ALLEN also agrees to submit to a polygraph examination at the request of law enforcement. If interviews, testimony or polygraph examinations are required, KAMAR DANIEL ALLEN agrees to cooperate fully and truthfully.... [¶] The judge... will determine the truthfulness of [Allen’s] testimony and whether he has cooperated and been truthful with law enforcement.... [¶]... The agreement requires the defendant to be truthful, whether that is helpful to the prosecution, [appellant], or any other person.... [¶] If it is determined that KAMAR DANIEL ALLEN violated the terms of this plea agreement, the plea agreement is void and the original charges against him in this case... will be reinstated.”
Then, during the prosecutor’s closing argument, she referred to the polygraph examination and its relationship to Allen’s truthfulness, as follows: “And he had reason to be truthful, because as part of his agreement he said Kamar Daniel Allen will cooperate with law enforcement and may be required to be interviewed by law enforcement at various times. He had to agree to submit to a polygraph examination at the request of law enforcement to determine his truthfulness. And he could not feign memory loss. [¶]... [¶] And it’s very clear that if any of the terms of this agreement are violated by any means-and the only term is that he tell the truth on the stand-if he violates the terms of the plea agreement, the plea agreement is void. The original charges against him in the case would be reinstated and he would be fully prosecuted to the extent of the law. [¶] And, more importantly, if this plea agreement is deemed void, Court decides that he was lying, any statements that he gave could be fully used against him in any prosecution of him. He straight out put it on the line to tell the truth here in court for a promise from me of I’ll let the Court decide what’s appropriate.”
B. Legal Analysis
Pursuant to Evidence Code section 351.1, subdivision (a), “the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding... unless all parties stipulate to the admission of such results.”
Here, since defense counsel failed to object to any of the three ways in which reference to Allen taking a polygraph examination was admitted into evidence, appellant argues that counsel was ineffective for failing to object to this clearly inadmissible evidence. (See Strickland v. Washington (1984) 466 U.S. 668 (Strickland).) Respondent does not argue that the evidence was admissible, in light of the categorical exclusion of polygraph-related evidence set forth in section 351.1 of the Evidence Code. Rather, respondent asserts that defense counsel had permissible tactical reasons for not objecting and that appellant has failed to establish that he was prejudiced by counsel’s lack of objections. (See Strickland, at pp. 688, 694 [to prove ineffective assistance of counsel, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness [¶]... under prevailing professional norms” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”].)
We find it difficult to imagine that counsel had legitimate tactical reasons for failing to object to all three improper references to a polygraph examination. Nonetheless, we need not definitively decide that question since we conclude that appellant was not prejudiced by counsel’s failure to object. (See Strickland, supra, 466 U.S. at p. 697 [“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,... that course should be followed”].)
First, we do not agree with respondent that the likely impact of the improperly admitted evidence was minimal. It is true that Allen’s mention of the polygraph examination during his testimony “was brief and nonresponsive” in that “[h]e did not state what questions he was asked or what the examiner concluded about his truthfulness.” (People v. Price (1991) 1 Cal.4th 324, 428.) However, this brief improper reference was exacerbated by the admission of the unredacted plea agreement, which not only stated that Allen agreed to take a polygraph test, but which also went on to state that any failure on Allen’s part to tell the truth would have great repercussions for him. The potentially prejudicial effect of these references to the polygraph examination were then further compounded by the prosecutor’s improper mention of Allen’s agreement to take a polygraph examination in her closing argument. What made this reference particularly problematic was the way the prosecutor linked this provision of the plea agreement to the determination of Allen’s truthfulness, further noting that if the court were to determine that Allen was lying, “[t]he original charges against him in the case would be reinstated and he would be fully prosecuted to the extent of the law.”
In addition, it appears that the prosecutor misspoke when she then stated: “And, more importantly, if this plea agreement is deemed void, Court decides that he was lying, any statements that he gave could be fully used against him in any prosecution of him.” The plea agreement actually states the opposite: “If the plea agreement is deemed void, none of the defendant’s statements obtained after the date of this agreement can be used against him in the prosecution of this case.”
Given these circumstances, we believe that that polygraph evidence could have “lent an unreasonable impression of credibility” (People v. Lee (2002) 95 Cal.App.4th 772, 792) to Allen’s testimony such that, were it not for other strong evidence of appellant’s guilt, it might be necessary to reverse the judgment. However, there is additional evidence demonstrating appellant’s guilt such that, even without Allen’s testimony, it is highly unlikely the jury would have found appellant not guilty of the two attempted murders. (See Strickland, supra, 466 U.S. at p. 694.)
We also observe that the jury was instructed that, as an accomplice, Allen’s testimony could be used to convict appellant only if that testimony was supported by additional, independent evidence.
This additional evidence includes Henriante Livingston’s description of the shooter as having long black hair and driving a blue car. Appellant testified that he had never driven a blue American-type car and also denied having access to any car in December 2007. He further denied being “in the company of a car” when he was arrested. However, according to the police officer who arrested appellant, he found appellant sleeping in a blue Ford Taurus automobile on December 11, 2007, which appellant said belonged to his aunt. Appellant had the car’s keys and a cell phone, which he said belonged to him, in his possession.
Although appellant claimed he was at the home of Anthony Combs’s mother, Lola Serna, for the entire day on the day of the shooting and other witnesses supported that claim, telephone records showed otherwise. Appellant’s cell phone called Combs’s cell phone several times shortly before the shooting, first using a cell tower in Concord, and then using a tower in Bay Point, near Serna’s home. Then, about 35 minutes after the shooting, appellant’s cell phone called Combs’s cell phone using a tower near the shooting site. These phone records provide persuasive evidence that appellant was not at Serna’s home at the time he said he was, but instead was traveling from Concord toward the Pittsburg shooting site.
Livingston also identified appellant as the shooter shortly after the shooting in a photo lineup and again at the preliminary hearing. Although, at trial, Livingston said he did not know if the shooter was in the courtroom, he also testified that, after the preliminary hearing-at which he had made a positive identification-he was called and warned not to testify in this case or he would be a “snitch.” When asked what happened to snitches, Livingston said they “get killed, simple as that.”
The evidence also showed that appellant had a shaved head at trial, whereas he had previously had almost shoulder-length black hair.
In light of this extremely strong evidence of appellant’s guilt, we conclude that it is not reasonably probable that, but for counsel’s failure to object to references to the polygraph examination or move to exclude the plea agreement, the result of the trial would have been different. (See Strickland, supra, 466 U.S. at p. 694.)
II. Admission of Alleged Criminal Gang Evidence
Appellant contends irrelevant and prejudicial criminal gang evidence was improperly admitted at trial.
A. Trial Court Background
Before trial, the prosecution moved to admit evidence that appellant had a photograph on his cell phone of the intersection of West Boulevard and Randolph Drive in Pittsburg. The prosecutor argued that since Kamar Allen had told police that the shooter was a Hispanic male named Chris or Christian who hung out on West Boulevard, appellant’s association with West Boulevard would be relevant to establishing his identity as the shooter. The trial court granted the motion, finding that the evidence seemed to be “important” to help establish identity and did not seem “particularly prejudicial.”
During trial, Detective Reposa testified that Allen had told police that the shooter was, inter alia, a Hispanic male named Chris or Christian, with a Hispanic surname and shoulder-length dark hair, who hung out on West Boulevard. The jury also was shown the photograph of the intersection of West Boulevard and Randolph Drive taken from appellant’s cell phone.
Also during trial, appellant testified that he lived part-time with a man named Jethro at 223 West Boulevard. He explained that he had taken a picture of an intersection on West Boulevard in August 2007 to resolve an argument with his girlfriend who had accused him of being somewhere else. He sent her the photograph of the intersection to prove his actual location.
On rebuttal, Detective Reposa responded to questions from the prosecutor, as follows:
“Q. Detective Reposa, I want to start with the location that was given by the defendant as his second home on West Boulevard. Do you remember the address that he gave?
“A. Yes.
“Q. And what is that?
“A. 223 West Boulevard.
“Q. And were you here when he supplied that testimony?
“A. Yes.
“Q. When that address was said by the defendant, were you aware of its location?
“A. Yes.
“Q. And you’re hesitating. Can you explain to the jury what you know 223 West Boulevard to mean?
“A. Yes. 223 is actually not a street address. On West Boulevard the street addresses only go up to the upper one hundreds. 223 is actually a marker on a telephone pole standard. It’s the number that signifies that particular light standard. And it’s a number that has been adopted by residents in the area of West Boulevard who claim or have allegiance to that particular neighborhood.
“Q. And in particular, is it a group of criminal individuals located in West Boulevard who had adopted that particular light post or light standard as this address 223 West Boulevard?
“A. Yes. West Boulevard itself has been designated as a high crime area. It’s inundated with violent crime, street drug sales and drug usage, property crimes. So it’s been designated as a high crime area.
“Individuals who claim West Boulevard claim that particular street pole, signified by the numbers or markings 223. It also has a reference in the appeal in accepting or acknowledging that number... 223[, which] is also the caliber of ammunition for [an] assault type weapon. So they draw the correlation between that being assault ammunition and the light pole standard signifying 223 and West Boulevard, it’s all synonymous with that particular area.”
Following Reposa’s testimony and out of the jury’s presence, the parties and the court discussed Reposa’s testimony. The trial court first stated: “I’d like to have us summarize some of our discussions off the record.
“First of all, why don’t we talk about Detective Reposa’s testimony yesterday regarding that street address that’s really a pole. Well, I’ll try to summarize.
“I believe that Ms. Smith [the prosecutor] indicated she wanted to use that impeachment because it was not a street address, a real home address. And she wanted it to come in to impeach the defendant and also to show that he was sort of identifying with a criminal neighborhood. She wanted to use the words that it was a gang, a known gang reference.
“And Miss Mockler [defense counsel] objected to the reference regarding gang because she thought it was more prejudicial than probative. I agreed and asked Miss Smith or instructed Miss Smith to have her witness refer to criminal activity.
“Then when the officer testified, he went beyond just criminal activity and referred to affiliation and claiming that territory. And I know Ms. Mockler would have objected to that. However, I don’t think we need to address it, because the officer did not use the gang language. And I’m not sure that the jurors are savvy enough to even understand that ‘claiming’ and ‘affiliation’ refers to gang issues.
“So I would leave it as is. Does anyone want to say anything about that?”
Defense counsel responded: “I do. When we talked in chambers [before Reposa testified], we talked at length about this issue. And it was agreed upon that Detective Reposa would talk in terms of people associated that specific location with criminal activity. I think that what he ended up testifying to is the same thing as saying gang activity, except he didn’t use the word gang.
“I did not object at the time that the testimony came out, because I did not want to highlight his testimony and make matters worse on the record. I am objecting now, making a motion to strike that part of his testimony and, for the record, making a motion for a mistrial.”
The prosecutor then responded: “I personally don’t believe that the officer stepped outside of the bounds. We discussed at length in chambers. And during that particular conversation I indicated to the Court that in order to be able to understand and explain this particular street post, there would have had to have been some reference to the fact that criminal activity or criminals associated with that particular area would have to and do affiliate with that particular post. After explaining that, we went into length about the fact that we couldn’t use the word gang. And I tried different versions of that. And I think the Court’s recommendation was criminal street activity. I think the defense position was that he could associate thugs with that particular post.
“And I think the testimony, as given, was innocuous enough. And, in fact, we didn’t go into extensive criminal activity within that particular area. He was innocuous enough that a jury would not have found that it was related to gang activity, but more that people associate from that particular area around that light post. And I do not believe the officer crossed over the line at all.
“I did instruct him not to use the word ‘gang.’ I did instruct him according to what the Court said about criminal activity within that area or criminal activity affiliated with that particular address. And I believe the officer stayed within his bounds. I think based on that and the fact that there’s no prejudicial value for what came in, that a mistrial should be denied and the testimony should not be stricken.”
The court then stated it would allow the testimony to stay in and denied the mistrial, explaining: “Although I didn’t anticipate the officer discussing ‘affiliation,’ which sounds more gang-like, he didn’t talk in terms of ‘gang.’ And it was within the scope of criminal activity. And I don’t find what the officer testified to to be more prejudicial than probative. So I’ll allow it to stand.”
B. Legal Analysis
Appellant argues the evidence in question was more prejudicial than probative. (See Evid. Code, § 352.) We review a trial court’s ruling pursuant to Evidence Code section 352 under the deferential abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Appellant also claims the evidence was irrelevant. (See Evid. Code, § 210.) Only relevant evidence is admissible. (People v. Harris (2005) 37 Cal.4th 310, 337.) Evidence is relevant if it “ ‘tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’ [Citation.]” (People v. Harris, at p. 337.) “The trial court has broad discretion in determining the relevance of evidence. [Citation.]” (Ibid.)
In the present case, the trial court expressly found that the probative value of Detective Reposa’s testimony about the telephone pole on West Boulevard outweighed its prejudicial impact. Although the words, “affiliation” and “claiming” in the officer’s testimony could have been interpreted as implying gang involvement, the officer did not in fact refer to gangs, but instead used the terms to describe the people from the area who were involved in criminal activity and identified with the telephone pole. We conclude that the trial court did not abuse its discretion when it found that Reposa’s testimony was within the scope of the agreed-upon discussion of “criminal activity” around the telephone pole, and that that testimony was more probative than prejudicial. (See People v. Kipp, supra,26 Cal.4th at p. 1121.)
This testimony was also relevant. It impeached appellant’s testimony that he lived part-time with “Jethro” at 223 West Boulevard. It also provided evidence showing that appellant was the shooter, described by Allen as someone who hung out on West Boulevard. Although the officer briefly used words that could perhaps be interpreted to apply to gang members, the words did not unambiguously refer to gang membership and therefore did not stray from the purpose of the testimony: to impeach appellant and to identify him as the shooter in this case. The court acted within its broad discretion when it found this evidence relevant and, hence, admissible. (See People v. Harris, supra, 37 Cal.4th at p. 337.)
Cases cited by appellant in support of his claim that the trial court abused its discretion are distinguishable from the present circumstances in that those cases involved explicit and often detailed evidence of the defendant’s gang involvement. (See, e.g., People v. Cardenas (1982) 31 Cal.3d 897, 904-905 [evidence that defendant and his witnesses were members of same youth gang was inadmissible to show witnesses’ bias when it was uncontested that they were all neighborhood friends]; People v. Bjorquez (2002) 104 Cal.App.4th 335, 337 [while evidence regarding common gang membership of defendant and defense witness was admissible for impeachment, trial court abused its discretion by admitting “wide-ranging testimony about gangs’ criminal tendencies”].)
Because we have found no abuse of discretion, appellant’s claim of a due process violation must also fail.
In his reply brief, appellant argues for the first time that admission of this evidence violated Evidence Code section 1101, subdivision (a), which bars the admission of character evidence to show a propensity to commit crimes. Because this issue was not raised in appellant’s opening brief and, moreover, apparently was not raised in the trial court, we will not address it now. (See People v. Saunders (1993) 5 Cal.4th 580, 589-590; People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2.)
III. Attempted Murder Instruction
Appellant contends the trial court’s instruction on attempted murder was incomplete and confusing.
A. Trial Court Background
The trial court instructed the jury on attempted murder with an abbreviated version of CALCRIM No. 600, as follows: “The defendant is charged in Counts 1 and 2 with attempted murder. To prove that the defendant is guilty of attempted murder, the People must prove that: One, the defendant took at least one direct, but ineffective step towards killing another person; and, two, the defendant intended to kill that person.
“A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous attempt to kill. It is a direct movement towards the commission of a crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.
“A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or kill zone.”
The trial court did not instruct the jury with the remainder of CALCRIM No. 600, which further discusses the “kill zone” or “concurrent intent” theory of attempted murder. Defense counsel did not object to the instruction as given.
The remainder of CALCRIM No. 600 provides: “[A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or ‘kill zone.’ In order to convict the defendant of the attempted murder of [the victim under concurrent intent theory], the People must prove that the defendant not only intended to kill [the primary target alleged] but also either intended to kill [the victim under concurrent intent theory], or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill [the victim under concurrent intent theory] or intended to kill [the primary target alleged] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of [the victim under concurrent intent theory].”]
B. Legal Analysis
In People v. Bland (2002) 28 Cal.4th 313, 329 (Bland) our Supreme Court discussed the concurrent intent or “kill zone” theory of attempted murder, pursuant to which “the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within... the ‘kill zone.’ ” (Citing Ford v. State (Md. 1993) 625 A.2d 984, 1000-1001.) In such a situation, “ ‘[t]he defendant has intentionally created a “kill zone” to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim.’ ” (Bland, at p. 330.)
Preliminarily, respondent argues that, due to his failure to object in the trial court, appellant has not preserved this claim of instructional error for appeal. According to respondent, because appellant merely challenges the instruction as incomplete, the claim is forfeited. (See People v. Hart (1999) 20 Cal.4th 546, 622, quoting People v. Lang (1989) 49 Cal.3d 991, 1024 [generally, “ ‘[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language’ ”].) Appellant counters that this alleged instructional error affected his substantial rights and, therefore, we have discretion to review the instruction in question despite his failure to object. (See § 1259; see also People v. Mitchell (2008) 164 Cal.App.4th 442, 465 [“failure to object to instructional error forfeits the objection on appeal unless the defendant’s substantial rights are affected”] (Mitchell).) “ ‘Substantial rights’ are equated with errors resulting in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818.” (Mitchell, at p. 465.)
“The forfeiture rule applies to claims based on statutory violations, as well as claimed violations of fundamental constitutional rights. [Citation.] ‘The reasons for the rule are these: “ ‘In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.’ ” ’ [Citation.] ‘To consider on appeal a defendant’s claims of error that were not objected to at trial “would deprive the People of the opportunity to cure the defect at trial and would ‘permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.’ ” ’ [Citation.]” (Mitchell, supra, 164 Cal.App.4th at p. 465, quoting In re Seaton (2004) 34 Cal.4th 193, 198.)
In the present case, appellant’s claim is that the trial court did not give the entire attempted murder instruction, under CALCRIM No. 600, and that it should not have left out the last part of the instruction, which he states further defined the “kill zone” theory of attempted murder. If appellant had brought his concerns to the trial court’s attention, the deleted language could have been added to the instruction, if warranted. His failure to object, however, deprived the trial court and the prosecutor of the opportunity to remedy any alleged error. (See Mitchell, supra, 164 Cal.App.4th at p. 465.)
We do not believe appellant’s substantial rights were affected by the instruction given in this case. First, our Supreme Court has stated that the “concurrent intent” or “kill zone” theory “is not a legal doctrine requiring special jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.” (Bland, supra, 28 Cal.4th at p. 331, fn. 6; accord, People v. Stone (2009) 46 Cal.4th 131, 137 (Stone).) Moreover, the “ ‘Bench Notes’ to CALCRIM No. 600 explain that Bland stated that a special instruction on the point is not required, and that the kill zone ‘language is provided for the court to use at its discretion.’ ” (Stone, at pp. 137-138.)
In view of the discretion the trial court had regarding whether to use the “kill zone” language at all, we conclude that the partial instruction given here on the “kill zone” theory was not misleading. The language of the instruction as given sufficiently explained the concept, including the requirement that appellant intended to kill anyone within the kill zone. Also, the jury was instructed with CALCRIM No. 103 regarding the presumption of innocence and the requirement that appellant’s guilt be proven beyond a reasonable doubt. We find it difficult to imagine that, without the additional reasonable doubt language in CALCRIM No. 600, the jury presumed that the kill zone theory of attempted murder was the sole, and unstated, exception to the overarching reasonable doubt requirement.
In Stone, supra, 46 Cal.4th 131, our Supreme Court observed that CALCRIM No. 600 “refers to the intent to kill ‘anyone’ within the kill zone rather than ‘everyone.’ In context, a jury hearing about the intent to kill anyone within the kill zone would probably interpret it as meaning the intent to kill any person who happens to be in the kill zone, i.e., everyone in the kill zone. But any possible ambiguity can easily be eliminated by changing the word ‘anyone’ to ‘everyone.’ ” (Id. at p. 138, fn. 3.) Like the court in Stone, we believe that the jury here likely interpreted the word “anyone” to mean “any person” in the “kill zone,” particularly since there were only two people in that zone.
In addition, during her closing argument, the prosecutor discussed how CALCRIM No. 600 applied to the facts of this case, accurately describing the “kill zone” theory. She began by emphasizing that specific intent to kill is an element of attempted murder, further stating, “I do have to prove to you that the defendant, with express malice aforethought, chose to kill Henriante Livingston and Devance Battle.” She then stated that the jury could reach that conclusion in one of two ways.
She first explained that appellant could have separately targeted each victim, based on the evidence presented at trial: “[W]hen he turned and pointed the weapon out the window, first at Devance Battle, his intent at that particular time was to kill Devance Battle. And as soon as Devance Battle started running, he turned the weapon to Henriante Livingston. And in his mind his target changed from Devance Battle to Henriante Livingston. And at the time that he began firing that trigger, boom, boom, he intended to kill Henriante Livingston.” Under this theory, the prosecutor explained, appellant “individually thought in his mind at different times when the gun was pointing at one particular person, I’m gonna kill you. I’m gonna kill you.”
The prosecutor also argued, alternatively, the “kill zone” theory: “I can prove that the defendant may have intended to kill anyone in a particular zone of harm or kill zone when he intended to kill a particular person. What do I mean? Well, I can prove that the defendant intended to kill a particular person, that is Henriante Livingston[, while] Devance Battle [was] standing in the kill zone. So I can prove to you that when the defendant went out there and he had that revolver in his hand and he was shooting out the window at Henriante Livingston, in his mind what he was thinking is I’m going to kill Henriante Livingston and if anybody is within that kill zone that gets in my way for me to kill Henriante Livingston [sic]. The law allows you to say he intended to kill whoever else was in that kill zone as well, Devance Battle. [¶] You can find it the other way, when the defendant pulled the revolver out of his lap, pointed it directly out the window and, as Kamar Allen stated, at Devance Battle first, what was running through his mind is I’m gonna kill Devance Battle. And you can find, based on that, that he knew the circumstances that Henriante Livingston was standing so close to Devance Battle, his intended target, that he had the specific intent to kill anyone standing in that zone of danger, that kill zone.”
The prosecutor’s argument correctly described the “kill zone” theory and applied it to the facts of this case. Importantly, she made clear that appellant had to have specific intent to kill each victim under any theory. This case is thus distinguishable from People v. Anzalone (2006) 141 Cal.App.4th 380, 392, in which the trial court exercised its discretion to leave out the “kill zone” portion of CALCRIM No. 600, which “totally [left] to the prosecutor the defining of that legal concept. In this case the prosecutor got it wrong.” The prosecutor erroneously told the jury that anytime persons are within a zone of danger, “the indiscriminate firing of a shot at those persons amounts to an attempted murder of everyone in the group. The prosecutor did not explain what constitutes a ‘zone of danger’ or how such a zone relates to the element of intent.” (Ibid.) Here, on the other hand, the trial court tied the term “kill zone” with the requirement that appellant had to have specific intent to kill each person within that zone, and the prosecutor correctly applied the “kill zone” theory to the circumstances of the case.
We also note our Supreme Court’s clarification in Stone, supra, 46 Cal.4th 131, 140, that “a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind. An indiscriminate would-be killer is just as culpable as one who targets a specific person.”
We also observe that substantial evidence was presented at trial that both Livingston and Battle were appellant’s intended victims. Allen testified that he had told appellant about his altercation with the two young men and about them showing up at Combs’s house. Then, as they approached Livingston and Battle near the apartment complex, appellant asked Allen, “Is that them?” and Allen said yes. There is also evidence-in the form of Allen’s and Livingston’s testimony and, especially, Livingston’s preliminary hearing testimony, which was read into the record at trial-that appellant first shot at Battle as he ran away. Thus, it is quite likely the jury found that appellant planned to kill both Livingston and Battle, rather than that Livingston was the sole targeted victim and that his intent to kill Battle was based solely on his presence in the “kill zone.” (See People v. Smith (2005) 37 Cal.4th 733, 741 [“ ‘The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill” ’ ”].)
In conclusion, given the instructions, evidence, and argument presented to the jury at trial, it is not reasonably probable that the court’s failure to instruct the jury with the entirety of CALCRIM No. 600 changed the result in this case. (See Mitchell, supra, 164 Cal.App.4th at p. 465, citing People v. Watson, supra, 46 Cal.2d 818.) Accordingly, because the instruction, as given, did not affect appellant’s substantial rights, his failure to object in the trial court forfeited any claim of error. (See Mitchell, at p. 465.)
IV. Cruel and Unusual Punishment
Appellant contends his sentence of 52 years, four months to life in prison constitutes cruel and unusual punishment under both the United States and California Constitutions.
Appellant points to a concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 589, 600-602, in which Justice Mosk opined that a sentence of 111-years-to-life for four simultaneous robberies would constitute cruel and unusual punishment under both the California and United States Constitutions. He also cites United States v. Bajakajian (1998) 524 U.S. 321, in which the United States Supreme Court invalidated a forfeiture of unreported currency pursuant to the excessive fine clause of the Eighth Amendment, on disproportionality grounds, and BMW of North America, Inc. v. Gore (1996) 517 U.S. 559, in which the Supreme Court found that a grossly excessive punitive damage award was unconstitutionally defective because it violated the due process clause of the 14th Amendment. None of these cases are particularly relevant to the specific facts of this case.
A. Trial Court Background
At the sentencing hearing, defense counsel said: “It does definitely appear that the statutory minimum that the Court has to give him constitutes, on a constitutional level, cruel and unusual punishment under the Eighth Amendment, and I have put that in my written brief. [¶] In this factual case where-though, there were two victims-one was not injured at all, he wasn’t even shot and didn’t testify-it seems... particularly cruel to have to impose a consecutive 22.4 years for a guy who was not injured, who did not choose to testify. And in that respect, this clearly-the statutes clearly do result in a sentence that is way beyond proportion for what occurred on that afternoon in December.”
Before sentencing appellant, the trial court stated: “The jury has made a decision. It’s based on evidence that supported their decision. This is very hard when you have someone who is as young as Mr. Alvarez. And given his youth and minimal criminal history, that’s why I chose the... mitigated term on Count 1.” The court then sentenced appellant to an aggregate term of 52 years, four months in state prison.
This sentence included a five-year mitigated term on count one, a consecutive one-third of the middle term of 2.4 years on count two, and consecutive 45-years-to-life terms on two of the enhancements.
B. Legal Analysis
1. California Constitution
Appellant first argues that the sentence in this case is disproportionate, considering the circumstances of the offense and his particular characteristics, and therefore constitutes cruel and unusual punishment under the California Constitution.
“Article I, section 17 of the California Constitution prohibits infliction of [c]ruel or unusual punishment.” A sentence may violate this prohibition if “ ‘ “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” ’ [Citation.] [¶]... [Appellant] must overcome a ‘considerable burden’ to show the sentence is disproportionate to his level of culpability. [Citation.] Therefore, [f]indings of disproportionality have occurred with exquisite rarity in the case law.’ [Citation.]” (People v. Em (2009) 171 Cal.App.4th 964, 972 (Em).) An important consideration in making a disproportionality determination relates to “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. (In re Lynch (1972) 8 Cal.3d 410, 425.)
“ ‘Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.’ [Citation.]” (Em, supra, 171 Cal.App.4th at p. 971.)
In People v. Dillon (1983) 34 Cal.3d 441, 478, 451-452, a 17-year-old defendant was convicted of first degree murder and attempted robbery, and was sentenced to life in prison after he shot and killed a man during an attempt by the defendant and his friends to steal the marijuana plants the victim was growing. The defendant had previously overheard the victim threaten to shoot anyone who came on his property. (Id. at pp. 450-451.) When the defendant heard the victim approaching and saw him carrying a shotgun, the defendant “began rapidly firing his rifle at him.” (Id. at p. 452.) Our Supreme Court concluded that the specific facts of the crime and the defendant’s culpability demonstrated that the imposition of a life sentence constituted cruel and unusual punishment. (Id. at pp. 451, 489.)
In the present case, appellant points out that he was barely 18 years old at the time of the shooting and had no prior adult criminal record and a minimal juvenile record. He also observes that Henriante Livingston, the only victim who was physically injured, was discharged from the hospital after receiving emergency room treatment.
Appellant also states that he rejected an offer of a 13-year plea deal shortly before trial.
First, that appellant was 18 years old at the time of the offense is relevant, but certainly not dispositive, given that California courts have upheld life sentences imposed on people under age 18 against cruel and unusual punishment claims. (See, e.g., Em, supra, 171 Cal.App.4th 964 [affirming two consecutive 25-years-to-life sentences imposed on a 15 year old for aiding and abetting felony-murder]; People v. Gonzales (2001) 87 Cal.App.4th 1 [affirming 50-year-to-life sentences imposed on two 16 year olds convicted of aiding and abetting first degree murder; People v. Ortiz (1997) 57 Cal.App.4th 480 [affirming 26-years-to-life sentence imposed on a 14 year old convicted of vicarious felony-murder].)
Second, the fact that appellant did not have an adult criminal record is not surprising in that he had turned 18 approximately one week before committing the present offense. Moreover, his relatively minimal juvenile record does not alter the fact that he used a firearm in an attempt to kill two unarmed, fleeing victims who were in no way a threat to him. Had he been successful, both victims would have died; it was simply fortuitous that neither one died and that only Livingston suffered great bodily injury, when he was shot in the back. In addition, we observe that one of appellant’s juvenile adjudications was for possession of a concealed weapon (brass knuckles), while at school. (See § 12020, subd. (a)(1); see also Em, supra, 171 Cal.App.4th at p. 976.)
Appellant’s sentence included both a 25-years-to-life enhancement and a 20-years-to-life enhancement for the firearm use, under section 12022.53. In enacting section 12022.53, the “Legislature found ‘that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and deter violent crime.’ (Stats. 1997, ch. 503, § 1.) Among the designated felonies is appellant’s crime, attempted murder. (§ 12022.53, subd. (a)(1) [murder], (a)(18) [“[a]ny attempt to commit a crime listed in this subdivision”].)” (People v. Martinez (1999) 76 Cal.App.4th 489, 493.) The underlying purpose of section 12033.53-to protect innocent people and deter violent crime-is wholly applicable to the offenses committed by appellant.
Appellant also argues that the inference of disproportionality is supported by comparing appellant’s sentence with the lesser sentences imposed for actual killings. Appellant points out, for example, that first degree murder carries only a 25-years-to-life sentence, and second degree murder carries only a 15-years-to-life sentence (§ 190, subd. (a).) Again, appellant ignores the Legislature’s reasonable determination that enhanced sentences are necessary for protection of citizens and deterrence of crime when a defendant uses a firearm, which causes great bodily injury or death, in the commission of crimes such as attempted murder. (See § 12022.53.) As the appellate court in People v. Martinez, supra, 76 Cal.App.4th 489, explained in rejecting such an argument: “The ease with which a victim of one of the enumerated felonies [in section 12022.53] could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives. [Citations.]” (Id. at pp. 497-498; accord, People v. Zepeda (2001) 87 Cal.App.4th 1183, 1215.)
In sum, given “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (In re Lynch, supra, 8 Cal.3d at p. 425), appellant has not overcome the “ ‘considerable burden’ ” required under California law to demonstrate that the sentence is disproportionate to his level of culpability. (Em, supra, 171 Cal.App.4th at p. 972.)
2. United States Constitution
Appellant also contends his sentence violates the prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution, which states, “ ‘[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ [Citation.] ‘The Eighth Amendment, which forbids cruel and unusual punishments, contains a “narrow proportionality principle” that “applies to noncapital sentences.” ’ [Citation.] The appropriate standard for determining whether a particular sentence for a term of years violates the Eighth Amendment is gross disproportionality.” (Em, supra, 171 Cal.App.4th at pp. 976-977.) Appellant has failed to show such gross disproportionality in the present case. (Cf. id. at p. 977 [citing two Three Strikes cases in which United States Supreme Court upheld sentences of 25 years to life and 50 years to life for petty thefts, concluding that if such sentences were not grossly disproportionate, a 15 year old’s sentence of 50 years to life for murder was not grossly disproportionate].)
Appellant’s claim that his sentence constitutes cruel and unusual punishment cannot succeed.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J. Lambden, J.