Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. HEF04830., J. Thompson Hanks, Judge.
Hirschhorn & Bieber, Brian H. Bieber (admitted pro hac vice); Gregory H. Comings for Defendant and Appellant, Everett E. Basquez.
United Defense Group and Michael N. Friedman for Defendant and Appellant, Daniel Sanchez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Defendants Everett E. Basquez (“Driver”) and Daniel Sanchez (“Passenger”) were arrested on December 1, 2001, following a car chase and shoot-out with the police. An amended felony complaint was filed on December 7, followed by the filing of an information on July 11, 2002, charging both defendants with three counts (counts 1-3) of committing willful, deliberate, and premeditated attempted murder of a peace officer (Pen. Code, §§ 664, subd. (e), 187, and 189), each aggravated by the allegation of personally discharging a firearm within the meaning of sections 12022.53, subdivision (c), and 1192.7, subdivision (c)(8); two counts (counts 4-5) of unlawful possession of a machine gun (§ 12220, subd. (a)); one count (count 6) of unlawful possession of a silencer (§ 12520); and one count (count 7) of felony evasion of a peace officer (Veh. Code, § 2800.2). As to Driver, it was also charged (count 8) that he was a convicted felon who unlawfully possessed a firearm (§ 12021, subd. (a)(1)), and that he committed the offenses alleged in counts 1 through 3, inclusive, while wearing a body vest in violation of section 12022.2, subdivision (a). Following a trial before two separate juries, the defendants were convicted as charged; however, as to Driver, the jury rejected the enhancing allegation under section 12022.53, subdivision (c), with respect to counts 1 through 3, inclusive. As to Passenger, the jury rejected the allegations in counts 1 through 3, inclusive, that the attempted murders were willful, deliberate, and premeditated.
All further statutory references are to the Penal Code unless otherwise specified.
On April 5, 2007, Driver was sentenced to state prison for an aggregate term of 51 years to life. On June 4, 2007, Passenger was sentenced to state prison for an aggregate term of 81 years to life. Both defendants appeal.
Driver contends: (1) there is insufficient evidence to sustain his convictions; (2) the trial court’s continuous sua sponte intervention in the trial denied him a fair and impartial trial; (3) the trial court erred during jury selection; (4) the trial court erred by failing to sever the trials; (5) the trial court erred in denying his motions to exclude irrelevant and prejudicial evidence; (6) the trial court erred in denying his motions for mistrial on the grounds of prosecutorial misconduct; (7) the jury was “mis-instructed”; and (8) there was sentencing error.
Passenger contends: (1) there was insufficient evidence that he attempted to murder three police officers; (2) the “kill zone” in this case was stretched so far beyond reason that it is inconsistent with the holding in People v. Bland (2002) 28 Cal.4th 313; and (3) there was sentencing error.
I. PROCEDURAL BACKGROUND AND FACTS.
The Prosecution’s Case
On December 1, 2001, at approximately 2:00 a.m., Hemet police officer Brandon Behringer was driving in the City of Hemet when he noticed a tan Chrysler moving at an unusually slow speed. As the Chrysler passed, Officer Behringer trained his flashlight on the car’s interior and noticed that its occupants did not glance at him, but instead locked their gaze forward in a “blank stare.” The officer found this behavior to be “very, very odd, very suspicious.” After the officer passed the Chrysler, the Chrysler made a “really abrupt U-turn” and parked in front of an apartment complex. Officer Behringer turned his car around and stopped to observe.
After a short stop, the Chrysler returned to the road and Officer Behringer followed it. The officer tried to initiate a traffic stop; however, the Chrysler led the officer on a high-speed chase. During the chase through the city, the officer saw the Chrysler run a stop sign and two red lights. It reached speeds as high as 70 miles per hour in a 40-mile-per-hour zone. Officer Behringer broadcast that he was in pursuit, and Officer Mark Richards joined the chase.
The Chrysler turned onto Soboba Road and at times reached speeds in excess of 100 miles per hour. At various points, the Chrysler’s headlights were extinguished. The pursuit reached a casino, where Officer Donald Brokaw positioned himself in order to prevent traffic from crossing into the Chrysler’s oncoming path. Officer Brokaw watched as the three vehicles sped past him. The Chrysler turned onto Castille Canyon Road, reached a closed gate, and made a U-turn. The officers did not prevent the Chrysler from driving away.
The Chrysler retraced its route, with the officers in pursuit. Officer Brokaw joined the pursuit himself. The Chrysler followed Soboba Road under Highway 79 and then turned off Gilman Springs Road. The driver of the Chrysler lost control of the car and it went “into a spin.” After gaining control and continuing on its way, the Chrysler’s left front tire began to deflate.
Later, the Chrysler slowed to a crawl and the officers converged, preparing to make a felony traffic stop. The three police cruisers fanned out. As the officers were preparing to stop, the back window of the Chrysler “spidered.” Officer Behringer heard the sound of several shots as the glass popped out of the window. He was unable to determine if more than one weapon was being fired, or whether the gunfire was from a semiautomatic or automatic weapon. Officer Richards saw a mix of semi-automatic and automatic gunfire. Officer Brokaw also saw the back window shot out and the muzzle flashes of a gun “firing at our direction.”
Then the Chrysler took off. As the rim of the tire became exposed, it emitted sparks as it scraped along the pavement. This caused the front portion of the car to catch fire. The Chrysler came to a stop and all four doors opened. Passenger, who was sitting behind the driver, exited and complied with the officers’ commands. Driver ran to the other side of the road but then hit the ground after the officers commanded him to lie down. Frankie Orosco, the front passenger, and Gabriel Vizcaino, the right rear passenger, took off running. When the chase finally ended, the pursuit had covered a total distance of 26 miles.
After defendants were arrested, at least two expended shell casings fell from Passenger’s clothing. Driver was wearing body armor. A search of the Chrysler produced a Smith & Wesson.357 magnum caliber revolver, a Ruger.357 magnum caliber revolver, a Sten Mk II nine-millimeter Luger caliber machine gun, and a nonfunctional Norinco Model 320 nine-millimeter Luger caliber pistol. No firearms were located in the front part of the vehicle; they were found in the rear. Officers recovered five expended nine-millimeter Luger cartridges, which had been fired from the machine gun, and five or six more expended.357 magnum caliber cartridges. Officers found a magazine clip for the machine gun on the pavement outside the driver’s side door, and other clips inside the Chrysler—one on the front driver’s side floorboard and one on the front passenger’s side floorboard. Officers also located a silencer on the rear floorboard.
Both defendants and Vizcaino had gunshot residue on their hands. An expert testified that the presence of gunshot residue may indicate someone fired a gun, handled a gun that had been recently fired, or was in the immediate environment when a gun was fired. There were exit holes from bullets in the roof of the Chrysler. Through the use of trajectory rods, officers determined these holes had been made by someone sitting in the front seat, but the officers were unable to determine whether the shooter was Driver or Passenger. The prosecutor’s expert opined there were at least two different shooters.
Police drew blood from all three men who were arrested. Driver had a reading of 320 nanograms of methamphetamine per milliliter of blood. Passenger had a reading of 410 nanograms of methamphetamine per milliliter of blood. Vizcaino had a reading of 280 nanograms of methamphetamine per milliliter of blood. According to the prosecution’s expert, all three men had used methamphetamine within a 12- to 24-hour period before committing their crimes.
Vizcaino testified that he and Passenger had smoked methamphetamine earlier in the day and then went to the Travelodge Motel. When Driver and Orosco arrived, the manager kicked them out of the room. Vizcaino and Passenger then got a ride from Driver and Orosco to Passenger’s house. When they arrived, the police car appeared and Driver “took off.” Vizcaino was in the back passenger side and Passenger was behind Driver. Vizcaino pleaded with Driver to stop, but Driver ignored Vizcaino and then told Vizcaino to shut up.
Orosco grabbed a backpack and pulled out a gun. Orosco and Driver were yelling and cursing at each other. Driver donned body armor during the pursuit. Vizcaino saw Passenger fire one or two shots from a revolver. Vizcaino was down in the back, covering his head. He heard, but did not see, at least 10 shots fired from the front seat. He believed the shots came from the driver’s side because Orosco grabbed the wheel just before shots were fired. Vizcaino also heard “clicking noises” from the front passenger’s seat, as if someone had been trying to use a gun unsuccessfully.
When Vizcaino was transported either to the station or to the hospital on the night of the incident, he told Officer James Foreman that “[Passenger] ‘started shooting. I got on the floor. I don’t know why he was shooting out the window. I guess he was scared. He even shot the roof.’” At booking, Passenger stated, “‘You can test my hands. It will show I’ve been shooting. I was loading a gun and shot out of a window. I was trying to escape, so I shot the windows out.’”
Eddie Stroud, a “Three Strikes” offender who met Driver at the Southwest Detention Center, testified that Driver said he was shooting out the car window with one hand while he was driving. Driver also told Stroud he was wearing body armor and the group was carrying automatic weapons because they had plans to rob a casino that night. In addition, Driver told Stroud that Officer Brokaw and Vizcaino could identify him (Driver) as a shooter and asked for a referral of someone who could kill the two men. Driver inquired whether Stroud would be out of prison soon enough to do the job. Driver was prepared to offer $6,000 for the murder of the officer and $4,000 for the murder of Vizcaino. Stroud testified that he asked Driver to put $500 in earnest money into Stroud’s prison account. Driver’s grandmother testified that she put that sum in Stroud’s account upon her grandson’s request.
According to Driver’s probation report, he received a monthly sum of $12,000 from the Soboba Indian Tribe.
The Defense’s Case
Passenger testified he had used “speed” earlier in the day. He confirmed going to the motel with Vizcaino and the later arrival of Driver and Orosco. Upon being kicked out of the motel, Driver and Orosco agreed to take Passenger and Vizcaino to Passenger’s sister’s house. As Driver pulled up to Passenger’s sister’s house, and as Passenger and Vizcaino were about to get out of the Chrysler, a police car shined its lights on them, and Driver sped off.
Passenger testified that during the chase, he called his sister, who then asked to talk to Vizcaino. Passenger stated that when the police were in pursuit of the Chrysler, Vizcaino told Passenger’s sister, “‘I’m not going to go to jail. I’m going to commit suicide.’” Passenger claimed he took the gun from Vizcaino and “waste[d]” the bullets by shooting above his head in the air, in an effort to stop Vizcaino from committing suicide.
Passenger testified that while he was shooting, Driver told Orosco to grab the steering wheel. Driver then began firing a “big gun.” When Driver resumed steering the car, Orosco emptied his revolver out the back window. Passenger ducked to avoid being shot. Orosco grabbed another gun; however, it would not shoot. Passenger said that he was telling the two men to stop shooting and seized the opportunity to grab the machine gun from Orosco. Passenger claimed that he never intended to shoot at anyone, especially the police.
Passenger’s sister testified that at some point during the day prior to the shootings, she was with Vizcaino and Passenger. She knew Vizcaino had two handguns, and she saw that Vizcaino and Passenger each had a gun tucked into his waistband. She argued with them to leave the guns. The two men went down to the basement, and when they came back upstairs, she did not see them carrying any weapons. She testified about the cell phone call with her brother and Vizcaino during the high-speed chase, and that Vizcaino said he would “rather shoot himself than to confront what was going to end up happening....” During cross-examination, she acknowledged that she had never provided information about the cell phone call before testifying in court.
The Prosecution’s Rebuttal
Detective Gerald Beamesderfer interviewed Passenger and Vizcaino. Vizcaino told the detective that when Orosco was having trouble with the machine gun, Passenger was trying to fix it, and Vizcaino never saw anyone but Passenger actually shoot a gun. Vizcaino also said that Driver initially told Orosco to put the gun down, but later told him to “go ahead and shoot, shoot.” Passenger did not identify Driver as a shooter until the third interview. During his first interview, he stated that Orosco grabbed the steering wheel so that Driver could put on his body armor.
II. SUFFICIENCY OF EVIDENCE
A. Issue
Both defendants contend there is insufficient evidence to support their convictions of three counts of attempted murder of a peace officer. Driver further challenges the jury’s finding that he “willfully, deliberately, and premeditatedly, intended to kill the officers.”
B. Standard of Review/Rule of Law
The applicable standard of review is well established. When the sufficiency of the evidence is challenged on appeal, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]’ [Citation.]” (People v. Thomas (1992) 2 Cal.4th 489, 514.) Reversal is warranted only where it clearly appears that “upon no hypothesis whatever is there sufficient substantial evidence” to support the conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.) The same standard of review applies when a conviction rests on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 623.) A murder that is willful, premeditated and deliberate is murder of the first degree (§ 189) and is punishable, at minimum, by imprisonment in the state prison for 25 years to life (§ 190, subd. (a)). Attempted murder is not divided into degrees (People v. Smith (2005) 37 Cal.4th 733, 740), but an attempted murder that is willful, premeditated, and deliberate is punishable by an indeterminate term of life in prison (§ 664, subd. (a)).
As applied to murder and attempted murder, “‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’” (People v. Mayfield (1997) 14 Cal.4th 668, 767.) A murder or attempted murder is “premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.” (People v. Stitely (2005) 35 Cal.4th 514, 543.)
“Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection. [Citations.]” (People v. Cook (2006) 39 Cal.4th 566, 603.) “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....” (People v. Thomas (1945) 25 Cal.2d 880, 900; accord, People v. Stitely, supra, 35 Cal.4th at p. 543.)
“In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), [the state Supreme Court] surveyed a number of prior cases involving the sufficiency of the evidence to support findings of premeditation and deliberation. [Citation.]” (People v. Perez, supra, 2 Cal.4th at p. 1125.) From the cases surveyed, the court identified types or categories of evidence pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing. (Ibid.) The Anderson court concluded that courts typically sustain premeditation and deliberation findings “‘when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).’” (Perez, supra, at p. 1125, quoting Anderson, supra, at p. 27.)
Stated another way, courts have found sufficient evidence of premeditation and deliberation when “‘(1) there is evidence of planning, motive, and a method of killing that tends to establish a preconceived design; (2) extremely strong evidence of planning; or (3) evidence of motive in conjunction with either planning or a method of killing that indicates a preconceived design to kill.’” (People v. Tafoya (2007) 42 Cal.4th 147, 172.) These are not the exclusive means of establishing premeditation and deliberation, however. (Ibid.) The goal of Anderson was not to establish bright-line rules, but to aid reviewing courts in assessing whether the evidence supports an inference that the killing was the result of “‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]....” (Anderson, supra, 70 Cal.2d at p. 27.)
Thus, “‘an execution-style killing may be committed with such calculation that the manner of killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning and motive.’” (People v. Tafoya, supra, 42 Cal.4th at p. 172, quoting People v. Lenart (2004) 32 Cal.4th 1107, 1127.) Indeed, the three categories of evidence-planning activity, motive, and manner of killing, “need not be present in any particular combination to find substantial evidence of premeditation and deliberation. [Citation.]” (People v. Stitely, supra, 35 Cal.4th at p. 543.) Still, when all three categories of evidence are present, the finding of premeditation and deliberation will generally be sustained. (Ibid.)
With the above in mind, we consider each defendant’s contention separately.
C. Analysis
1. Driver’s Challenge
Driver first contends the evidence that he “intended to kill the peace officers is weak, contradictory, and insufficient to sustain his convictions.” His contention is supported by references to the testimonies of various witnesses, which establish that he never personally discharged a firearm. As the People aptly note, the jury agreed with Driver and found there was no evidence to support the allegation that Driver personally discharged a firearm within the meaning of section 12022.53, subdivision. (c). Nonetheless, the People argue that “the jury could reasonably have convicted [Driver] based on his liability as an accomplice.” Driver disagrees, claiming that he was “simply the driver attempting to flee a hostile situation. [He] used body armor to protect himself, he was not ‘calling’ instructions to anyone, nor was he driving the car in a manner for [Passenger] to take better aim at the officers.” After reviewing the record, we agree with the People.
“‘A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 851.) Mere presence at the scene of a crime is not enough to establish aider and abettor liability. Instead, there must be substantial evidence that the defendant acted with knowledge of the criminal purpose of the perpetrator and with the intent of aiding, facilitating or encouraging the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 560.) An aider and abettor is liable for another’s actions as well as his or her own. However, he or she is liable for his own mens rea. (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) Because an accomplice’s guilt is based on the combined actus reus of the participants and his or her own mens rea, the accomplice’s level of guilt may be the same, greater than, or less than that of the principal. (Id. at pp.1120, 1122-1123.)
Here, we find ample evidence that Driver knew of Passenger’s unlawful purpose, that Driver had the intent to encourage and facilitate the commission of the offenses, and that Driver aided, promoted, encouraged and instigated those offenses. From the very beginning, it was Driver who was responsible for the high-speed chase. No one else had control of the Chrysler, nor is there any evidence that someone in the car held a gun to Driver’s head. Driver, who is associated with the Indian tribe which runs the Soboba Casino, drove to Indian land; however, when the road was blocked, he turned around and continued to evade police officers. As Driver slowed the Chrysler to a crawl, the officers got closer to the Chrysler believing that they could conduct a felony stop. However, instead of stopping the Chrysler, the occupants inside shot out the back window and aimed for the officers. It is reasonable to infer that such slowing of the Chrysler provided the occupants with a clearer shot. After the volley of shots, Driver sped away. During the course of this high-speed chase, Driver donned body armor. While he claims it was to protect himself, the fact remains that he could have protected himself at any point prior to the shooting by simply stopping the Chrysler. As the People observe, the fact that Driver continued to drive away from the officers at high speeds, coupled with putting on the body armor, “speaks volumes about his intentions.” Specifically, the People contend that in a rolling shoot-out with police, the driver must be protected from any gunfire so that he can outmaneuver the police to get to a place of safety. We agree. Moreover, the record supports a finding that Driver was the leader, as evidenced by testimony that Driver told Orosco to hold his fire until the right moment, when Driver instructed Orosco to “go ahead and shoot, shoot.”
This same evidence also supports a finding that Driver premeditated and deliberated the attempted murders. Driver controlled the speed of the Chrysler, he directed others when to shoot and when to wait, and he donned the body armor to ensure his own safety to get away. When Passenger and the other occupants were unable to kill the police, Driver attempted to hire someone to finish off any witnesses. As the People note, Driver’s “obvious motive was to engineer their escape and to ensure no witness was left alive to identify them. [Driver’s] activities towards that end were plainly the result of ‘pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than a ‘mere unconsidered or rash impulse hastily executed.’” (People v. Anderson, supra, 70 Cal.2d at p. 26.)
2. Passenger’s Challenge
Passenger contends the evidence against him was insufficient to support a conviction of attempted murder of three police officers. Like Driver, Passenger refers to various testimonies of witnesses, which he argues fail to show that he aimed and fired a gun at any of the officers or intended to kill them. Given the number and kinds of weapons found in the Chrysler, which could have done significantly more damage, Passenger contends it is clear that the gunfire was used merely to put greater distance between defendants and the police in order to evade arrest. We disagree.
To begin with, we note that Passenger admitted firing at least one of the weapons, and he acknowledged that he “shot out the back window” and that the officers were behind the Chrysler. While Passenger claimed that his actions were the byproducts of heroism, mistake, or recklessness, the jury rejected his claim. There was ample evidence to support the jury’s decision. As Passenger was being booked, he said, “I was loading a gun and shot out of a window. I was trying to escape, so I shot the windows out.” Passenger admitted that when Driver was shooting, he was “[m]ost likely [shooting at] the police.” When questioned about timing of the vehicle’s speed and the gunfire, Passenger agreed that if both occurred at the same time, then it would look like the shooting was planned. Likewise, Passenger testified that Driver’s donning body armor suggested that “he don’t want to get shot, or he’s going to do something.” Lastly, Passenger admitted that when he took the gun from Vizcaino, he could have removed the bullets and thrown them or the gun out the window instead of using it.
In his reply brief, Passenger notes the People’s argument, repeats the testimonies of the officers, and reiterates the argument in his opening brief, specifically stating that of the three officers, “only... Behringer testified that gunfire was aimed at him. [The others] testified that the gunfire was aimed behind the vehicle... “in their direction, not at them.” (Original bolding and italics.) Thus, Passenger urges this court to conclude that the evidence fails to support a finding that he intended to kill anyone. While we appreciate the fact that Passenger’s counsel has focused his arguments on appeal to only those issues which he deems meritorious, we do not agree with his characterization of the evidence regarding the issue of Passenger’s intent. The fact that the officers testified the gunfire was in their direction, as opposed to at them, is a difference without distinction. Passenger armed himself and fired his weapon at the officers. He did not fire any shot in front of the Chrysler, or at the sides of the Chrysler. He fired out the back of the vehicle, in the direction of the officers. Such action, given the circumstances of this case, supports the jury’s verdict.
Moreover, as the People point out, Passenger’s sister testified that she had seen him with a gun before he left with Vizcaino. Likewise, Passenger’s cell phone call to her while he was being chased by the police hinted of being a suicide note, i.e., that he expected a fatal outcome. Clearly, Passenger’s actions establish his intent to kill all of the three officers. While none of his shots hit their mark, such poor marksmanship may be explained by the fact that he was shooting backwards out of a moving car in the middle of the night while under the influence of methamphetamine. Despite Passenger’s poor aim, the officers were convinced they were the intended targets.
III. CALJIC NOS. 8.66 AND 8.66.1
The prosecution charged both defendants with three counts of attempted murder (§§ 187, 664) for firing several shots at the pursuing police officers. The trial court instructed the jury with CALJIC No. 8.66.1 (Attempted Murder—Concurrent Intent), which provides: “A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. [This zone of risk is termed the ‘kill zone.’] The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim’s vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a [‘kill zone’] or [zone of risk] is an issue to be decided by you.”
This instruction is derived from People v. Bland, supra, 28 Cal.4th 313 (Bland), in which the defendant and an accomplice both fired into a car, intending to kill a rival gang member who was in the car; however, two nongang members who were also in the car were wounded. (Id. at p. 318.) The Supreme Court held that the defendant could be convicted of attempted murder of each of the two nongang members, even though neither was his primary target: “[T]he fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the ‘kill zone.’ ‘The intent is concurrent... when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity. For example,... consider a defendant who intends to kill A and, in order to ensure A’s death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire.... The defendant has intentionally created a “kill zone” to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim.... Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone....’ [Citation.]” (Italics added.) (Id. at pp. 329-330, quoting Ford v. State (1992) 330 Md. 682, 716-717 [625 A.2d 984].)
According to Passenger, “[t]he kill zone concept... was taken beyond its extreme limit.” First, Passenger notes the positions of those involved in the incident, i.e., (1) there was a “substantial distance” between the Chrysler and the officers when the shots were fired, (2) Brokaw was “far beyond the reasonable range of assault weapons and hand guns,” and he was shielded by his and two other patrol cars, and (3) Richards was out of range. Second, Passenger describes their gunfire as “haphazard” and “misdirected,” and that their gunfire “was employed intentionally to generate fear in the pursuing officers and thereby create some distance between them” to make a clean getaway. Third, Passenger views the lack of bullet holes in the patrol cars as evidence of a lack of intent to kill, not poor marksmanship. Given the above, Passenger claims the “kill zone inference made by the jury was not reasonable....” More specifically, he contends the evidence “cannot support a finding of [Passenger’s] intent to kill all three police officers based upon the so-called ‘kill zone’ theory.” We disagree.
Here, the jury could reasonably infer from the following evidence that Passenger shot at the police officers with the intent to kill each one: Passenger was in the Chrysler with others, being pursued by the officers; the officers, and each one of them, stood (philosophically) in the way of Passenger’s freedom; Passenger armed himself and shot out the back window of the Chrysler; Passenger aimed and fired in the direction of the officers; Passenger fired more than one shot; and an automatic weapon was used. From this evidence, the jury could also reasonably infer that Passenger intended to kill anyone within the “kill zone.” The fact that none of the bullets reached intended targets does not detract from the fact that Passenger intended to kill the very officers at whom he shot. (People v. Bragg (2008) 161 Cal.App.4th 1385, 1391, 1393-1395 [defendant fired in direction of crowd where victim was located]; People v. Campos (2007) 156 Cal.App.4th 1228, 1244 [act of spraying a car with bullets at close range is sufficient to form an inference of intent to kill everyone inside the car]; People v. Anzalone (2006) 141 Cal.App.4th 380, 393 [“[T]o be found guilty of attempted murder, the defendant must either have intended to kill a particular individual or individuals or the nature of his attack must be such that it is reasonable to infer that the defendant intended to kill everyone in a particular location as the means to some other end, e.g., killing some particular person.” (Italics added.)].)
IV. JUDICIAL MISCONDUCT
Driver contends he was denied a fair and impartial trial because the trial judge continuously intervened by making improper clarifications, highlighting testimony, inserting objections, and restricting defense counsel’s cross-examination. He begins by referring to his counsel’s objection on the second day of trial:
“[DEFENSE COUNSEL]: Judge, there is one other matter. I say this with absolute all due respect, your Honor. I would never suggest to your Honor how to run its courtroom in any way, shape, manner, or form. But from the defense perspective, your Honor asked... witness Nevarez about shell casings and interjected its own question regarding the shell casings. And we believe that that had the effect of highlighting that testimony.
“Likewise, with respect to Officer Brokaw and Officer Richards yesterday, the Court had asked a clarifying question that we believe would be more appropriate coming from the prosecutor. We believe that that information is highlighted when it comes from the bench and
“THE COURT: I’m sorry you feel that way, [Defense Counsel]. I have and I will continue to ask questions of witnesses when I believe it helps clarify their testimony. The fact that you don’t like it isn’t going to change it.”
Driver moved for a mistrial, claiming the court’s actions were improper. The motion was denied. Driver contends the alleged improper interjection by the trial court continued. He further claims that his counsel was forced to stop objecting when the trial court chastised him: “I’m [tired] of hearing this.... [T]his is the second time I told you. When I believe it’s necessary to clarify testimony, I will be asking questions, and it will not result in any mistrial.”
A. Standard of Review/Rule of Law
“‘The object of a trial is to ascertain the facts and apply thereto the appropriate rules of law, in order that justice within the law shall be truly administered.’ [Citation.] To this end, ‘the court has a duty to see that justice is done and to bring out facts relevant to the jury’s determination.’ [Citation.]” (People v. Sturm (2006) 37 Cal.4th 1218, 1237 (Sturm).) Trial courts have a general duty to control trial proceedings and maintain order and decorum in the courtroom. (§ 1044; see People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) Specifically, section 1044 provides: “It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence... to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” The trial court has broad discretionary power to control the proceedings in the courtroom; however, in exercising its discretion, the trial court must be impartial and must assure that the defendant is afforded a fair trial. (People v. Cline (1998) 60 Cal.App.4th 1327, 1334.)
“Trial judges ‘should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other.’ [Citation.]” “‘A trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution.’ [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 603.) “Jurors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials. [Citation.] When ‘the trial court persists in making discourteous and disparaging remarks to a defendant’s counsel and witnesses and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge... it has transcended so far beyond the pale of judicial fairness as to render a new trial necessary.’ [Citation.]” (Sturm, supra, 37 Cal.4th at p. 1233.)
B. Analysis
According to Driver, the following are examples of the court’s “egregious behavior.”
1. Questioning Witnesses and Clarifying Testimony
After the People finished their examination of the residue analyst, the trial court asked the witness whether he/she had received samples from both hands or just one, and was it positive for both. The witness answered, and the court said: “Both hands. Thank you.” Driver complains it was the People’s obligation to elicit this testimony. As the People note, while it may have been preferable for the prosecutor to have asked those questions, it did not constitute judicial misconduct for the trial judge to do so. (Evid. Code, § 775; People v. Sanders (1995) 11 Cal.4th 475, 531 [“trial court may question a witness in order to elicit additional information or clarify confusing testimony”].) Moreover, it is unclear whether the trial court’s questioning had any effect on Driver’s defense, given the prosecutor’s comment, “the best you can tell us is that this person was around a firearm that was fired or around a person who fired a firearm or around a firearm that he fired?” Nonetheless, Driver maintains that “[t]he [c]ourt made sure the jury knew that both of [Driver’s] hands had gun shot residue on them, implying [Driver] discharged a weapon.” However, the jury rejected the allegation of personal use of a weapon. Thus, Driver was not prejudiced.
In addition, the defense emphasized the fact that none of the officers broadcast over radios that Driver was shooting. However, during the People’s examination of Officer Brokaw, the People elicited testimony that some of the events were broadcast and some were not. The trial court added:
“THE COURT: By that I take it some of the stuff that you were saying out loud you weren’t broadcasting. Is that what you mean?
“THE WITNESS: During the pursuit, yes.
“THE COURT: I’m saying that you were perhaps saying things out loud that you weren’t necessarily radioing those back. You were just being
“THE WITNESS: Yeah, I was talking to myself to remind myself to go through safety procedures and
“THE COURT: Okay. I wanted to make sure I understood what you were trying to get at.”
Driver complains the trial court’s interjection implied the officer said Driver was shooting. We disagree, and clearly, so did the jury, as evidenced by its finding untrue the allegation that Driver personally discharged a firearm. Contrary to Driver’s contention, a new trial is not warranted. Driver’s claim that the court’s questioning impacted the jury’s findings amounts to nothing more than speculation.
Also, during the testimony of Officer Richards regarding the trajectory rods and the automatic gunfire, he stated the holes with the trajectory rods showed the end of the burst. The trial court then asked: “Where was the start of the burst of the automatic gunfire?” The officer replied, “In the middle of the window. The lower edge, the center of the back window.” The court then added, “So it rose across the window and into the roof. Is that the idea?” According to Driver, those questions should have been asked by the prosecutor, not by the trial court. So what. The questioning did not result in implicating Driver as the shooter, and the pattern of gunfire was important in assisting the jurors in performing their truth-finding function.
Likewise, Driver faults the trial court’s clarification of the testimony of Officer James Potts which Driver claims “highlight[ed] the evidence that shots were fired at the officers.” As the People point out, all of the shell casings were found near Passenger, not Driver. The jury heard such evidence. Furthermore, as noted ante, the jury rejected the allegation that Driver personally used a firearm. Thus, Driver cannot demonstrate how the court’s questioning swayed the jury.
“Q. [PROSECUTOR:] I want to show you four photographs.... Can you take a look at those photographs. Have you had a chance to look at those?
As for the testimony regarding methamphetamine, Driver argues the court’s clarification highlighted Driver’s “drug use at the time the shots were fired at the peace officers.” Again, we disagree. The court asked two questions: “When methamphetamine breaks down, what kind of things do we see in the testing,” and “That’s a product of the methamphetamine being broken down by the body?” The evidence that Driver was under the influence of methamphetamine was uncontested. The trial court’s questions were harmless. Driver’s reliance on Sturm, supra, 37 Cal.4th 1218, and People v. Santana (2000) 80 Cal.App.4th 1194 (Santana), is misplaced. Each of those cases involved extreme instances where the trial court clearly allied itself with the prosecution. In Sturm, the trial court commented that it was a “‘gimme’ that defendant had premeditated the murders,” along with many other comments and criticisms. (Sturm, supra, at pp. 1238, 1243-1244.) In Santana, the trial court belabored points of evidence that were adverse to the defendant and continued “adversarial questioning for page after page of the reporter’s transcript....” (Santana, supra, at p. 1207.)
2. Objecting During Driver’s Counsel’s Opening Statement and Cross-examination of Witnesses
After Driver’s counsel’s first cross-examination question of the first witness, the following occurred:
“[DEFENSE COUNSEL:] With respect to the tape, Officer Behringer, would you agree with me that not one time on that entire tape
“THE COURT: The tape at this point has not been played, is not in evidence, and therefore what’s on the tape is not—unless I hear it’s inconsistent to what he’s testified to, it’s not relevant.”
Driver argues that his counsel’s question was legitimate; however, the trial court “set the tone in favor of the People from the commencement of the evidence.” Defense counsel continued to cross-examine the officer about the report of the incident, attempting to point out inconsistencies between the report and the officer’s trial testimony. The court interrupted: “You’re arguing with him now. Don’t argue with him. Just ask him a question.” On appeal, Driver claims that his questioning was not argumentative, the trial court usurped the prosecutor’s job, and the trial court “purposely ‘stopped’ counsel’s ‘flow.’” However, the People correctly point out that the tape had not been authenticated or played, and thus, the jury had not yet heard it. Until such time, defense counsel’s questions assumed facts not in evidence. If the purpose of questioning Officer Behringer was to show that he never said that Driver was shooting during his broadcast of the incident, then Driver secured such acknowledgement during cross-examination. Moreover, the jury rejected the allegation that Driver personally used a firearm.
Driver contends the same type of interruption occurred during the cross-examination of Detective Michael Elmore, whom Driver claims changed his opinion on who was the shooter, Driver or Orosco. The following exchanged occurred:
“Q. [DEFENSE COUNSEL:] So your opinion now five years later is maybe it was Orosco, but five years ago it was Orosco, right?
“THE COURT: You’re arguing with him, Counsel. Don’t argue with him. Just ask him a question.
“Q. [DEFENSE COUNSEL:] Your opinion five years ago
“THE COURT: That’s an argument, Counsel.
“Q. [DEFENSE COUNSEL:] Was your opinion five years ago
“THE COURT: That’s an argument, Counsel.”
The People aptly point out that defense counsel was attempting to make a “speech to the jury under the guise of a question.” However, such form of defense is improper. (People v. Chatman (2006) 38 Cal.4th 344, 384 [“An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.”].) Moreover, Driver again focuses on the shooter’s identity, which we have repeatedly noted the jury found in his favor. Likewise, the trial court properly interrupted Driver’s counsel’s questioning of Stroud (regarding Driver’s attempt to hire someone to have a few people killed,) because it was also argumentative. We reject Driver’s claim that the trial court “did what it could... to cripple his defense. (People v. Chatman, supra, 38 Cal.4th at p. 384.)
“Q. [DEFENSE COUNSEL:] Okay. Your answer is different than the answer you just gave us. So you want to change this answer; right?
As to a few other witnesses (Nevarez and Elmore), the trial court said, “I’ll interpose my own objection to that,” and “No. That’s beyond the scope of his redirect.” Driver argues the trial court tried to diminish the effectiveness of his counsel’s cross-examination. However, Driver fails to demonstrate how he was prejudiced.
Finally, Driver claims the trial court had a “contemptuous attitude towards [his] counsel.” Driver points to the following exchange:
“Q. [DEFENSE COUNSEL:] You never cooperated against any other people in any
“THE COURT: Unless you have some information that he indicates he has
“[DEFENSE COUNSEL]: Good faith basis, Judge.
“THE COURT: What is the good faith basis?
“[DEFENSE COUNSEL]: The statement that he made, Judge.
“THE COURT: That statement?
“[DEFENSE COUNSEL]: No, not this statement. In one of his prior statements. Good faith basis.
“THE COURT: You show me the statement.
“[DEFENSE COUNSEL]: At the break?
“THE COURT: Show it to me right now.”
Counsel followed the court’s directive, the court read the statement, and then permitted counsel to question the witness about the statement. Nonetheless, Driver contends the damage was done and clearly the court was motivated by a desire to assist the People “in obtaining guilty verdicts.” We disagree. It is the trial court’s job to control the introduction of evidence. Here, the fact that defense counsel was required to allow the trial court to review the statement prior to its use does not mean that the court was being contemptuous to counsel. The court was merely doing its job. (§ 1044; Evid. Code, § 775; People v. Burnett (1993) 12 Cal.App.4th 469, 475-476.) Furthermore, as the People point out, there were instances when the trial court became impatient with the prosecutor.
3. Restricting Driver’s Counsel’s Cross-examination of Detective Beamsderfer
According to Driver, as his counsel inquired into what Passenger had said during one of his interviews, the trial court interrupted, “You know, the transcripts... speak for themselves. If you need clarification in some area, then certainly ask the officer, but the tapes themselves are the best evidence of what was said.” Driver claims the court further interjected objections to counsel’s questions, forcing counsel to conclude his cross-examination of Detective Beamsderfer. Driver claims that if his counsel had been allowed to cross-examine the detective, his counsel would have effectively challenged the detective’s credibility and testimony (“as well as that of [Passenger] and Vizcaino”) and would have been able to show that Driver was not guilty of any of the crimes charged. We agree with the trial court and find that the transcripts speak for themselves. The tapes were the best evidence of what was said. (Evid. Code, §§ 1520-1523.) To the extent defense counsel was challenging Passenger’s veracity, such challenge is best made during closing argument, not by cross-examining another witness.
For the above reasons, we perceive no abuse of discretion in the trial court’s actions or statements, and we conclude the trial court’s effort to maintain control of the proceedings did not constitute misconduct.
V. JURY SELECTION
Driver claims that he was denied his constitutional rights to due process of law when the trial court (1) denied his request for the People to conduct voir dire first; (2) denied his motion to strike the jury panel; and (3) restricted his voir dire.
A. Defense Request for the People to Conduct Voir Dire First
During voir dire, the trial court’s procedure was to question the jurors first, then allow defense counsel to question them, and finally the prosecution was to ask question. At the beginning of voir dire, Driver requested that the People be directed to conduct their examination first, on the grounds that it is the prosecution’s burden of proof. The trial court denied the request, saying: “I think that it [the trial court’s procedure] makes logical sense. This is the process of picking 12 individuals who are unbiased, and whoever goes first, seems to make no difference whatsoever. We’ll proceed with the way we’ve been doing it for the past 18 years.” On appeal, Driver contends the trial court’s action resulted in shifting the prosecution’s burden of proof. We disagree. Other than citing to general principles of law regarding the prosecution’s burden of proof, Driver has not offered any support for his contention. Failure to cite legal authority on a particular point authorizes an appellate court to treat the issue as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.) To the extent that Driver is inviting this court to create a new rule governing the order in which parties conduct voir dire, we decline to do so. “‘“The Constitution... does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.”’ [Citations.] ‘[T]he trial court is given wide latitude to determine how best to conduct the voir dire....’ [Citations.]” (People v. Tafoya, supra, 42 Cal.4th at p. 168.) While each party has the right to examine, by oral and direct questioning, the prospective jurors, (Code Civ. Proc., § 223) there is no direction as to which side goes first. That decision is, and shall remain, under the control of the trial court. (Evid. Code, § 320.)
B. Denial of Motion to Strike Jury Panel
During voir dire, defense counsel asked: “Does anybody—of our new prospective jurors, does anybody here believe that just because [Driver] is sitting here charged with a crime that he must have done something wrong? [¶] [Prospective Juror]?” The prospective juror answered: “My concern is that there were so many counts that—I know the right thing, because I know you’re going to ask me that—but I feel that there must be something if there’s so many counts.” The court then interjected:
“THE COURT: Well, [Prospective Juror]. I think as adults we know something had to happen or we wouldn’t be in court. Do you know what happened?
“[PROSPECTIVE JUROR:] No, just what I was told.
“THE COURT: So you don’t know what happened. Something must have happened or we wouldn’t end up in court. That’s logical. We don’t get here unless something happened, but you don’t know what that something was, do you?”
According to Driver, the court’s statements resulted in shifting the burden of proof to him. Thus, Driver’s counsel moved to have the panel stricken; however, his motion was denied. On appeal, he challenges the trial court’s actions. We reject his claim. First, the trial court correctly noted that logic dictates something must have happened to warrant the need for a trial. It further noted that none of the jurors know what that something was. There is nothing wrong or improper with these statements. Second, defense counsel pointed out that the fact that something happened does not mean that a crime was committed. Instead, there are only allegations of criminal actions for which the jury will decide who is responsible. Third, the jury was repeatedly told that the defendants were presumed innocent and that the prosecution bore the burden of proving guilt beyond a reasonable doubt. And finally, to the extent the trial court’s comment may have been inappropriate, the jurors were properly instructed that comments made by the court or counsel were not evidence. For these reasons, the trial court did not err in denying the defense motion to strike the jury panel.
In his reply brief, Driver notes, “Nowhere in [the judge’s] subsequent remarks is there any admonishment to the jury that the Court was not implying that the defendant was guilty....” However, we note the trial court did remind the jury it may not guess or speculate, and it must listen to the evidence and make a decision based on that. Further, the court reminded the jury that the prosecutor is the only person who has to prove something.
C. Duration of Voir Dire
Driver asked for more time to conduct voir dire in order to “examine the jurors more deeply on the issues of burden of proof, reasonable doubt, right to remain silent, and also background.” Counsel wanted to inquire into the jurors’ “childhood and where they grew up and their hobbies, current hobbies, what newspapers they read and television shows they watch and magazines they subscribe to, questions like that,” to have a “better understanding of these jurors.” Driver’s request was denied. On appeal, he claims the trial court’s limitation on the duration of his voir dire “irreparably prejudiced his rights guar[a]nteed by the California and Federal Constitutions.” The People disagree with Driver’s claims, noting the trial court extensively questioned the potential jurors prior to giving each party a total of 40 minutes, and that despite this time limitation, Driver accepted the jury after having used only 12 of his 20 peremptory challenges. We agree with the People.
Driver was not prejudiced by the trial court’s limitation on the duration of his voir dire. “[T]here is no constitutional right to any particular manner of conducting the voir dire....” (People v. Boulerice (1992) 5 Cal.App.4th 463, 474.) What is guaranteed by the Constitution is “sufficient questioning to produce some basis for a reasonably knowledgeable exercise of the right of challenge....” (Id. at p. 477.) If that is provided, “voir dire by the trial judge alone does not deprive a defendant of the right to adequate voir dire under the Sixth and Fourteenth Amendments. [Citations.]” (Ibid.; People v. Robinson (2005) 37 Cal.4th 592, 618.)
VI. DENIAL OF DEFENSE MOTION TO SEVER TRIAL
Driver contends he was denied due process as a result of the trial court not severing his case from that of Passenger. “When the trial court’s denial of severance and impanelment of dual juries is urged as error on appeal after trial,... the error is not a basis for reversal of the judgment in the absence of identifiable prejudice or ‘gross unfairness... such as to deprive the defendant of a fair trial or due process of law.’ [Citations.]” (People v. Cummings (1993) 4 Cal.4th 1233, 1287.) On the record before this court, we cannot find any identifiable prejudice or gross unfairness.
To begin with, we note that Driver acknowledges the legislatively expressed preference for joint trials. Also, he concedes that a “classic” case for a joint trial is presented where defendants are charged with common crimes involving common events and victims. These concessions suggest that the trial court did not abuse its discretion in failing to sever the trials of the two defendants. “‘After trial, of course, the reviewing court may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law.’ [Citation.]” (People v. Pinholster (1992) 1 Cal.4th 865, 933.)
Driver argues that a gross unfairness occurred because he and Passenger had “antagonistic defenses.” Specifically, he argues that “Other than his co-defendant’s testimony, the evidence was scant that [Driver] had, or fired, a gun at the peace officers with the intent to kill them.” The only other witness to place a gun in Driver’s hand was Officer Brokaw. Driver argues that the officer’s testimony was contradicted by other witnesses. Thus, Driver maintains that by being tried jointly with Passenger, their “antagonistic defenses” deprived him of his right to a fair and unbiased trial.
“‘Antagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.’ [Citation.] ‘Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’ [Citations.] Stated another way, ‘“mutual antagonism” only exists where the acceptance of one party’s defense will preclude the acquittal of the other.’ [Citations.]” (People v. Hardy (1992) 2 Cal.4th 86, 168.)
Initially, we do not find the argument of “antagonistic defenses” is implicated in the present case. Both defendants had separate juries. Driver does not cite, and we can find no case discussing, the concept of “antagonistic defenses” within the confines of a dual jury trial. Driver’s jury was not called upon to accept or reject any of Passenger’s defenses. Here, because of separate juries, the problem of “antagonistic defenses” did not arise. (People v. Hardy, supra, 2 Cal.4th at p. 168.) Although the defense positions may have been antagonistic as to who was firing a weapon, the fact that both defendants were involved in the incident is undisputed. This was not a case in which only one defendant could be guilty. The prosecution did not charge both defendants and leave it to them to convince the jury of the other’s guilt. Rather, the People’s theory was that both defendants fired weapons at the officers and were guilty of attempted murder. We reject Driver’s claim that the “differences in criminal responsibility were clear.” While Driver claims he was “an unwilling participant who merely drove the vehicle,” the record shows otherwise. Driver initiated the chase, controlled the speed of the vehicle, and refused to stop. Unwilling participant? Not according to the record before this court.
Furthermore, we note that Passenger was not the only one to identify Driver as having fired a gun. Officer Brokaw claimed to have seen Driver with a gun, the gun residue expert testified there was gun residue on Driver, and Eddie Stroud testified that Driver admitted shooting a weapon. Thus, there was more than just Passenger’s testimony to incriminate Driver. More importantly, the jury found untrue the allegation that Driver had personally discharged a firearm. Given this finding, whatever implication Passenger’s testimony (identifying Driver as the shooter) had as to Driver, there was no gross unfairness to Driver. Clearly, Driver’s identity as a shooter played no part in the jury’s decision to convict him of three attempted murders.
VII. DENIAL OF DEFENSE MOTION TO EXCLUDE EVIDENCE
Driver contends that four items of evidence were admitted over his counsel’s objection, even though they had little or no probative value and were unduly prejudicial. “We consider each such item in turn, bearing in mind that physical evidence may be admitted to substantiate and illustrate a witness’s testimony [citations], and that we use the deferential abuse-of-discretion standard to review a trial court ruling admitting an exhibit over an objection that it is inflammatory or unduly prejudicial [citation].” (People v. Price (1991) 1 Cal.4th 324, 433.)
A. Stroud’s Testimony
Prior to trial, defense counsel moved to exclude the testimony of Edward Stroud. The motion was denied. Stroud told the jury that he had been a thief all of his life and he had a history of being dishonest. Nonetheless, he testified as to a conversation he had with Driver while they were both were in jail. According to Stroud, Driver admitted personally firing a weapon and to planning to rob a casino with the other people in the Chrysler on the night they were chased. He also inquired as to hiring someone to kill Officer Brokaw and Vizcaino. Driver argues that Stroud’s testimony was unreliable, irrelevant, and uncorroborated. He faults the People for failing to follow up on Stroud’s May 2002 claims until 10 days prior to the January 2007 trial. He claims the People merely used Stroud’s testimony to “inflame the jury.” We disagree.
Stroud’s claim that Driver admitted firing a weapon was rejected by the jury. His claim that Driver wanted to hire a hit man was corroborated by Driver’s grandmother’s testimony that she deposited $500 in Stroud’s prison account, the exact amount Stroud had requested. As for the plan to rob a casino, given the number of men in the Chrysler and the fact that they were armed, we cannot say that such evidence had no relevance. Clearly, there had to be a reason why Driver led the officers on a chase. Regarding Driver’s claim that Stroud provided willfully misleading responses on cross-examination, calling into question his credibility, we note the jury was properly instructed that it was the sole judge of a witness’s credibility and that it could reject a witness’s testimony. The trial court did not err in allowing the jury to determine what inferences it would draw from the evidence, and what crimes, if any, Driver had committed.
B. Driver’s Previous Conviction
Driver objected to any reference to his prior conviction as being highly prejudicial. Agreeing that such evidence is prejudicial, the trial court observed, “that’s the nature of the charge.” The court drafted a stipulation informing the jury that Driver had a prior conviction without stating what it was for. Driver complains the court should have granted his motion to bifurcate count 8 (felon in possession of weapon) so that he would not be prejudiced. Alternatively, he argues the court should have excluded the evidence of his prior conviction from the trial. In support of his claims, he cites People v. Sapp (2003) 31 Cal.4th 240, 261-262 (Sapp). We find Driver’s reliance on Sapp to be misplaced and reject his contentions. As the Sapp court noted, “[People v.] Valentine [(1986)] 42 Cal.3d 170[,] [228] allows the trial court only two options when a prior conviction is a substantive element of a current charge: Either the prosecution proves each element of the offense to the jury, or the defendant stipulates to the conviction and the court ‘sanitizes’ the prior by telling the jury that the defendant has a prior felony conviction, without specifying the nature of the felony committed.” (Id., at p. 262.) Given these two options, Driver and his counsel chose the latter. Accordingly, there was no error.
C. Correspondence
Driver challenges the admission of two sets of correspondence. The first set contained letters between Driver and Orosco, and the second set contained letters between Driver and his mother, Janice Serrato. The first set of letters was never admitted. Instead, over Driver’s objection, the jury heard a stipulation that Driver and Orosco were communicating while awaiting trial. Regarding the second set of letters, Serrato wrote to Driver to let him know that Passenger and Vizcaino had been “singing like birds from the beginning,” and she berated the two for “telling” and “snitching” on her son. Referring to Passenger, Serrato informed Driver that she would “take care of it, original gangsta stuff.” Driver said to her, “So fuck the system, but it’s on for Daniel.”
Regarding the communication between Driver and Orosco, Driver argues the evidence was more prejudicial than probative because it implied that he and Orosco were “trying to manipulate the criminal justice system” by getting their stories straight. Driver’s argument amounts to no more than speculation. As the People point out, “No one... can divine what weight the jury attributed to the fact the three men were communicating before trial....” Regarding Driver’s correspondence with his mother, Driver claims the correspondence had a tendency to show that he and his family were “bad people.” While the letters may have some prejudicial effect, it was clearly outweighed by their probative value. If Driver played an innocent, passive role in the incident, he would have had no reason to respond to Serrato’s letters by saying, “So fuck the system, but it’s on for Daniel.”
D. Black’s Testimony
Driver contends the testimony of toxicologist, Maureen Black, regarding the effects (both physically and mentally) and abuse of methamphetamine, along with the levels of methamphetamine in Driver’s system after he was tested post-arrest, was completely irrelevant and was used solely to inflame the jurors and let them know Driver was a drug user. As such, Driver argues that the testimony and the evidence of the presence of drugs in his blood should have been excluded. The People reply that the evidence was relevant to “explain why none of the bullets hit their mark.” As the expert explained, the drug can affect fine motor skills, making it difficult to aim, and then control, an automatic machine gun. We agree and thus reject Driver’s claim.
Even if we were to assume the trial court erred in admitting any or all of the above challenged evidence, we find it is not reasonably probable that the result would have been more favorable to Driver if such evidence would have been excluded. (Evid. Code, § 353, subd. (b); People v. Watson (1956) 46 Cal.2d 818, 836.) As the People aptly note, “the evidence showed [Driver] led police on a 26-mile chase during which his cohorts directed a hailstorm of bullets against them. That is why the jury convicted him.”
VIII. PROSECUTORIAL MISCONDUCT AND DENIAL OF MOTION FOR MISTRIAL
Driver’s next contention is that statements of the prosecutor in closing argument constituted prejudicial misconduct. A prosecutor’s conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) It violates the United States Constitution “when it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) “In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm. [Citation.]” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
A. Asking the Jurors to Put Themselves in the Shoes of Potential Victims
During closing argument, the following exchange occurred:
“[THE PEOPLE]:... And if you can just imagine being in a public place, a casino
“[DEFENSE COUNSEL]: Objection, your Honor. Golden Rule argument.
“THE COURT: Overruled.
“[THE PEOPLE]: Just imagine being in a public place and seeing four men walk in holding these types of weapons, wearing body armor, carrying enough... high-capacity magazines and enough ammunition to kill a whole group of people. Imagine the fear. We think about that, and it just strikes fear into our minds and in our hearts. But as scary as that is, as dangerous as that is, imagine the feeling of futility that you would feel if the police responded, and you thought, thank God I’m safe now.
“[DEFENSE COUNSEL]: Same objection.
“THE COURT: Overruled. Continue.”
Driver contends the prosecutor violated the “golden rule” by appealing to the jury to view the crime through the eyes of the victim. “It is true that ordinarily ‘a prosecutor may not invite the jury to view the case through the victim’s eyes, because to do so appeals to the jury’s sympathy for the victim.’ [Citations.]” (People v. Lopez (2008) 42 Cal.4th 960, 969-970.) However, in this case, the prosecutor did not ask the jurors to view the crimes through the eyes of the victims. Instead, he gave a hypothetical. Thus, we perceive no impropriety. (Ibid.)
A “golden rule” violation refers to asking a juror to “become a personal partisan advocate for [a party] rather than an unbiased and unprejudiced weigher of the evidence. (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 484-485.)
B. Referring to God
By saying “thank God I’m safe now,” Driver contends the prosecutor compared the police to God and appealed to the juror’s sympathies and religious beliefs by implying that without God, the police would not have been present to save the potential victims. Driver failed to timely object on these grounds, and thus has forfeited the issue. (People v. Abilez (2007) 41 Cal.4th 472, 526-527; People v. Slaughter (2002) 27 Cal.4th 1187, 1209 [failure to object to Biblical reference forfeits the claim for appeal].) Even if we address the merits of Driver’s contention, we find no merit. Although a reference to Biblical authority is potentially dangerous (People v. Roldan (2005) 35 Cal.4th 646, 743), under the circumstances of this case, we cannot say the prosecutor’s comments improperly asked jurors to apply Biblical authority in lieu of California law or otherwise appeal to a higher authority.
C. Making a Disparaging Remark about Driver’s Mother
Referring to the correspondence between Driver and his mother, the prosecutor observed, “[I]t’s disgusting.” Driver faults the prosecutor for “cast[ing] ‘foul’ blows” at him. We reject Driver’s claim. Besides the fact that Driver failed to object and has forfeited his claim, we note that prosecutors are given wide latitude during argument. Here, the challenged remark did not exceed the bounds of proper argument. Instead, we find that the prosecutor’s description of the correspondence amounted to a permissible comment on the evidence. (People v. Harrison (2005) 35 Cal.4th 208, 244-245; see People v. Hawkins (1995) 10 Cal.4th 920, 961 [no misconduct in referring to the defendant as “‘coiled like a snake,’” or to life imprisonment for the defendant being like “‘putting a rabid dog in the pound’” (overruled in part on other grounds as stated in People v. Blakeley (2000) 23 Cal.4th 82, 89)].)
D. Using the Term “Our”
Driver’s final claim of prosecutorial misconduct refers to the remarks the prosecutor made at the end of his closing argument: “These men were fired at with automatic weapons and semiautomatic weapons, over twenty rounds, and Officer Behringer had the presence of mind and goodness of heart that when he saw that first blink of a hand he didn’t press the trigger. They are so lucky to be here. What they showed in professionalism in the face of what they did is amazing. And we have a responsibility to be fair, to examine the evidence, to weigh and consider it and render appropriate judgment on this case. We have an obligation to render the appropriate verdict, and this time we also have the obligation to protect those officers. It’s our turn.” Again, Driver’s failure to object to the prosecutor’s comment forfeits the argument on appeal. (People v. Adanandus (2007) 157 Cal.App.4th 496, 512.) Nonetheless, we find no misconduct. The prosecutor’s use of the word “our” was not an attempt to align himself with the jury. As the People correctly note, the prosecutor did not invite the jury to abrogate their personal responsibility to determine the appropriate verdicts based on the evidence. (People v. Zambrano (2007) 41 Cal.4th 1082, 1177-1178 [no misconduct in describing jury as the conscience of the community or by noting the jury’s important role in the criminal justice system (overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421)].)
Although Driver failed to object at the time the remarks were made, we note that during a break, Driver did move for a mistrial based on the remarks. The motion was denied.
IX. JURY INSTRUCTION
The People aptly note that Driver has provided a list of 17 instructions he claims the trial court should have given. Driver also asserts in conclusory fashion that these instructions were either supported by substantial evidence or constituted necessarily lesser included offenses of the charged offenses. Driver lists six instructions he argued the trial court should not have given, maintaining, again in conclusory fashion, that they were either unsupported by substantial evidence or were defective because they did not contain his requested modifications. Citing People v. Ratliff (1986) 41 Cal.3d 675, 696, Driver concludes that refusing to give the proper jury instructions was not harmless error, but rather entitles him to a reversal of his convictions. The People reply that “[s]ince [Driver] asserts his arguments in a perfunctory manner, they are not sufficiently developed to be cognizable and this Court should not consider them.” We agree with the People. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Griffin (2004) 33 Cal.4th 536, 589, fn. 25 [“To the extent defendant claims that the trial court erred by refusing his request to instruct on the elements of murder,... we dismiss his claim as ‘not properly raised: it is perfunctorily asserted without argument in support.’ [Citation.]”]; People v. Smith (2003) 30 Cal.4th 581, 616, fn. 8 [“We need not consider such a perfunctory assertion unaccompanied by supporting argument. [Citation.]”]; People v Turner (1994) 8 Cal.4th 137, 214, fn. 19 [“We discuss those arguments that are sufficiently developed to be cognizable. To the extent defendant perfunctorily asserts other claims, without development and, indeed, without a clear indication that they are intended to be discrete contentions, they are not properly made, and are rejected on that basis.”]; People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 (same); People v. Mayfield (1993) 5 Cal.4th 142, 196 [“Defendant’s constitutional claims largely are asserted perfunctorily and without argument in support. Therefore we do not consider them. [Citation.]”]; People v. Jones (1998) 17 Cal.4th 279, 304, [defendant who presents claim perfunctorily and without supporting argument invites rejection in similar fashion].)
Notwithstanding the People’s request that we not consider Driver’s claims of instructional error, we note they responded to each claim. It is clear the People provide such response in the alternative, i.e., in the event we chose to consider each of Driver’s claims. Driver replies to the People’s responses. However, having initially provided only arguments in a perfunctory manner, we decline to consider Driver’s arguments in his reply brief. (People v. Dixon (2007) 153 Cal.App.4th 985, 996, fn. omitted, [“It is also improper to raise issues for the first time in a reply brief or at oral argument. [Citation.]”]) His arguments are too little and come too late. Even if we were to consider them, we agree with the People’s responses and therefore reject Driver’s claims of error.
X. SENTENCING
Citing People v. Black (2007) 41 Cal.4th 799, 822, Driver acknowledges that the trial court was not required to find that an aggravating circumstance existed in order to justify the imposition of consecutive terms, and that the imposition of consecutive terms did not implicate his jury trial rights. Nonetheless, Driver and Passenger contend the trial court abused its discretion in sentencing them to three consecutive life sentences on the three attempted murder convictions, because concurrent sentences on all three would have served the same purpose and there was insufficient evidence of separate acts of attempted murder. We disagree. Imposing consecutive sentences was within the trial court’s discretion, and we cannot say the trial court abused its discretion. (§ 669; People v. Shaw (2004) 122 Cal.App.4th 453, 458-459.) Moreover, there was sufficient evidence to support the consecutive sentences.
Passenger also contends his consecutive sentences of seven years to life on the three counts of attempted murder are improper because section 664, subdivision (e), sets the punishment for attempted murder of peace officers at life imprisonment with the possibility of parole. The People agree. Thus, we direct the trial court to correct Passenger’s abstract of judgment to reflect imposition of life imprisonment with the possibility of parole, rather than seven years to life, on each count of attempted murder. (People v. Smith (2001) 24 Cal.4th 849, 852.) Passenger further claims the 20-year enhancement added to each of those three counts for discharging a firearm was unwarranted, because the discharge “was a single act.” He maintains that while his “conduct gave rise to several crimes against multiple defendants, it is the nature of the laws he violated, not the nature of his acts, which produced the consecutive sentences he received.” We disagree. There were three officers in three separate cars, and Passenger fired several shots at the officers. The trial court correctly sentenced him consecutively.
XI. DISPOSITION
The judgment is affirmed as to Driver. As to Passenger, the trial court is directed to correct the abstract of judgment to reflect imposition of life imprisonment with the possibility of parole, rather than seven years to life, on each count of attempted murder.. The trial court is directed to deliver a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment as to Passenger is affirmed.
We concur: MCKINSTER J., MILLER J.
“A. Yes.
“Q. Do those fairly and accurately represent the items that you marked as items of evidence you would not collect?
“A. Right.
“THE COURT: Just so we understand your reasoning, something like a shell casing you would collect. Correct?
“THE WITNESS: Yes. It’s physical evidence. It could actually be collected and taken.
“THE COURT: Something like a tree or fire hydrant, you obviously wouldn’t collect that.
“THE WITNESS: Not necessarily. This basically represents like a hole or damage to an item that can’t physically be collected.”
“THE COURT: Now you’re arguing with him.
“Q. [DEFENSE COUNSEL:] Would you like to change your answer that you gave on January 19th of this year when you were asked if you spoke with anyone in 2002?
“A. [WITNESS:] I would like to explain that answer.”