Opinion
F070490
08-16-2018
THE PEOPLE, Plaintiff and Respondent, v. OSCAR ABRAHAM BON, Defendant and Appellant.
Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR040757)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Mitchell C. Rigby, Judge. Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Oscar Abraham Bon, a Norteño street gang member, was the passenger in a vehicle when he thought he saw rival gang members in another vehicle and shot at them numerous times. Bon was mistaken, as the eight occupants of the other vehicle consisted of a fellow Norteño gang member, his wife and children. Bon was convicted, as charged, of eight counts of premediated attempted first-degree murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)) (counts 1-8) and two counts of discharging a firearm at an occupied motor vehicle (§ 246) (counts 9 and 10). The jury also found true various street gang and firearm allegations (§§ 186.22, subds. (b)(1), (b)(4) & (b)(5), 12022.53, subds. (b), (c) & (d), and 12022.5, subd. (a)(1).) Bon was sentenced to a total aggregate term of 320 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
When the offenses were committed, section 12022.5, subdivision (a) did not contain paragraph (1). This issue is set forth in detail in part VIII. and IX. of the Discussion, post.
Bon contends the evidence was insufficient to sustain more than three or, under an alternate scenario, at most six counts of attempted murder; that the trial court erred in instructing on the "kill zone" theory; that there was insufficient evidence the offenses were committed for the benefit of a criminal street gang; that defense counsel provided ineffective assistance for failing to object to questions asked of the gang expert; that the trial court erred in instructing on the consciousness of guilt from false statements and the consciousness of guilt from flight; that cumulative error occurred; that the minute order and abstract of judgment must be corrected to accurately reflect the proper Penal Code section; and that two of the personal use of firearm enhancements must be stricken.
On September 12, 2017, we issued our original opinion in this appeal, agreeing with his last two contentions. We directed clerical corrections of the abstract of judgment, struck the section 12022.5, subdivision (a) enhancements as to counts 9 and 10, and in all other respects, affirmed the judgment.
On October 13, 2017, Bon filed a petition for review in the California Supreme Court, which was denied December 13, 2017. This court issued the remittitur the following day.
On April 27, 2018, we granted Bon's motion to recall the remittitur and reinstate the appeal on grounds we should remand the case to the trial court to allow it to determine whether one or more firearm enhancements should be stricken in the interests of justice pursuant to recent statutory amendments conferring such discretion on the trial courts. We ordered supplemental briefing on the issue and the Attorney General appropriately concedes the case must be remanded for these purposes.
STATEMENT OF THE FACTS
Victim and Eyewitness Testimony
On April 21, 2011, between 5:00 and 5:30 p.m., Police Officer Michael Kutz saw Bon, whom he knew from prior contacts, with two women in a faded black Nissan Altima, license plate No. 3EGE248, near 6th and E Streets in Madera. Bon was not the driver. Officer Kutz followed the Altima into an AM/PM parking lot, where one woman got out and entered the store, while the vehicle drove to the air pumps area. The store's video surveillance showed these movements occurring at 5:35 p.m.
Around 7:00 p.m. that same day, Alejandro Salas, his wife, Julieta Ochoa, and five children were stopped in their vehicle in the right lane at Riverside Drive and D Street in Madera. According to Salas, a faded black Nissan Altima was in the left lane, although Ochoa thought that they were at the intersection before the black car pulled up next to them. Both Salas and Ochoa saw one Hispanic woman driving, another Hispanic woman in the front passenger seat, and a light-skinned Hispanic man, in his late 20's or early 30's with "really short" hair and a mustache, in the back seat. Both Salas and Ochoa identified the man as Bon in a photo line-up four days after the incident, as well as at trial. Salas also identified Bon at the preliminary hearing.
The two vehicles were side by side for three seconds. Salas made eye contact with Bon, whom he described as "real fidgety," with his right hand tucked away on his left side. Ochoa, who also made eye contact, described Bon as leaning over and moving a lot.
As Salas turned right onto D Street, the Altima cut in front of him and Salas followed the car down the street. Salas saw Bon going from side to side in the car, ducking his head down. Ochoa testified the car was driving "crazy," in and out, "very fast" and cutting off cars.
Near the intersection of Yosemite Avenue and E Street, Salas heard five or six shots. He did not see a gun, but saw Bon's position and the muzzle flash. Ochoa heard shots, looked up, and saw the black car and a white SUV next to each other.
In the white SUV, a Chevy Suburban, Mario Lopez, Sr. was driving his family to dinner. Lopez's wife, Elsa Hernandez, was in the front passenger seat. Alexis, Andrew and Veronica were in the second row; Mario Jr., Manuel, and Lyana were in the third row. The Lopez family were Dallas Cowboy fans; their car had a Cowboys license plate frame and Lopez was wearing a blue Cowboys hat.
Driving west on Yosemite Avenue near Gateway Drive, Lopez heard shots and Hernandez pulled him down. Hernandez recalled hearing something loud and telling everyone in the car to get down, but she did not see the shooting. Alexis, age 14, and Veronica, age 19, were hit by bullets.
Lopez drove to the hospital, where Officer George Yang spoke to the children. A bullet went through Alexis's bicep. She heard the gunshots, but did not see the shooting. Veronica, who heard five to six gunshots, was hit by a bullet that went through the back of her neck. Lopez's left arm was hit by shattered glass, and there was a gunshot hole on his left sleeve.
Mario, age 11, and Manuel, age 10, told Officer Yang that a black four-door car pulled alongside them at Yosemite Avenue and Gateway Drive, when someone in the back seat brandished a handgun in his right hand, covered his face with his left hand, and fired four or five shots. Neither mentioned seeing any tattoos on the shooter's hands. None of the children in the Suburban could identify the shooter to Officer Yang, nor did they at trial, where they denied knowing anyone named Bon or anyone by the nickname "Cubs." In fact, most of the children who testified claimed not to remember the event at all and denied being shot at.
At the hospital after the shootings, Hernandez told Officer Eddie Guzman they were driving west on Yosemite Avenue and stopped for a red light at Gateway Drive when a black Nissan Altima drove up on the driver's side of their vehicle and stopped. A Hispanic man in the back seat of the vehicle stuck a handgun out of the rear passenger-side window and fired twice. Hernandez yelled for her family to get down and more shots followed before the Altima sped off.
Lopez told Officer Guzman he was driving west on Yosemite Avenue toward Gateway Drive and stopped at a red light behind other vehicles. A black Nissan Altima with two Hispanic women in the front seats pulled up next to him and stopped. A Hispanic man in the back seat pulled out a handgun, stuck it out of the rear passenger-side window, fired shots, after which Hernandez yelled, "Get down," more shots were fired and the Altima sped off. Neither Lopez nor Hernandez said they recognized the shooter or could identify him, other than to say he was Hispanic. Law Enforcement Response and Investigation
On April 26, 2011, five days after the incident, Detective Hector Garibay interviewed Lopez and Hernandez, a tape of which was played for the jury. Hernandez described the car she saw as dark, but she did not know if the shots came from the front or back seats. She claimed she saw "no face, no nothing." Lopez said he "didn't get to see nothing" because everything happened too fast. He only knew that, of the four shouts he heard, the back window of his own vehicle was hit first.
Detective Garibay viewed the Altima, after it was impounded on another unrelated matter. He described it was primered black or gray, and, when he saw it, recalled it was similar to the car in an earlier drive-by shooting in July of 2010 in which Bon was also involved. Detective Garibay found a red handkerchief on the passenger seat of the vehicle.
On the evening of May 3, 2011, Highway Patrol Officer Efren Jimenez drove past a dirt field, where he saw a faded gray Nissan Altima, license plate No. 3EGE248, with two Hispanic men standing outside the vehicle. Officer Jimenez made a U-turn, but the men were gone, although the vehicle remained. Officer Jimenez chased one of the men, whom he caught and identified in court as Bon. Bon did not obey commands, so Jimenez drew his gun. Bon gave Officer Jimenez a false name and birth date.
Bon was taken to the hospital where Officer Yang, dispatched there on another matter, recognized and arrested him. During booking, Bon said, "I want to tell you guys something. I'm psychic and you won't be going to court on this. People always want to point a finger because I got a familiar face, but when it comes down to it, charges will be dropped."
When Detective Garibay told Lopez and Hernandez that Bon had been arrested, they appeared nervous and worried. Both claimed at first not to know Bon, but Lopez then said he did know Bon, that he was "like a brother" to him, and that there was no way Bon shot at him or his children. Lopez was adamant that he did not want to be "any part of this" and would not testify.
Evidence showed three bullets hit the white Suburban: one in the rear passenger window on the driver's side, one in the driver's side door, and one in the front windshield. One of those bullets went through the driver's headrest and two exited through the rear window on the passenger side.
On June 7, 2011, agents executing a search warrant at the apartment of Juan "Joker" Herrera and Jose "Eke" Guerrero and found a Jimenez Arms .9-millimeter semiautomatic gun behind a cushion of a living room chair. Three expended .9-millimeter Ruger shell casings were recovered near the Yosemite Avenue and Gateway Drive intersection. According to a Department of Justice firearms and tool mark examiner, two of the found shell casings had the same class characteristics but insufficient individual detail to determine they had been fired from the recovered firearm, although they could have been.
The firearms examiner concluded that the two bullet fragments that fell out of Alexis's clothing at the hospital had been shot from the recovered firearm, based on one bullet fragment's class characteristics and individual detail similar enough to be a match. Gang Expert Testimony
Sergeant Jacob Tallmon testified as a gang expert about the Norteño or Northerners criminal street gang, which consists of many subset gangs who all identify with the color red, the number 4 or 14 and the letter "N." Tallmon explained that the rival gang of the Norteños is the Sureño gang, who identify with the color blue, the number 3 or 13, and the letter "M," and are derogatorily referred to as scraps or scrapa.
According to Tallmon, the subset gangs in the Madera area were run by Herrera and Gustavo Moreno, with Guerrero as Herrera's right-hand man. Tallmon described the primary activities of the Norteño gang to include, among others, murder, attempted murder, robbery, assault with a deadly weapon, drive-by shootings and drug dealing, and he recounted four predicate offenses which occurred in 2009, 2010, and 2011. Tallmon opined that, at the time of the April 2011 shooting, Salazar was a Norteño, Herrera a leader of Norteño gangs, Gallegos a member of the Vario Tiny Winos, and Lopez and "active" Norteño.
Tallmon opined that shootings generally benefit the gang because the fear, reputation, and respect helped the gang's operations by preventing cooperation with law enforcement and interference with criminal activities. Tallmon opined that Bon's shooting at a car he believed to be occupied by rival gang members would benefit the gang because such a shooting showed dominance and intimidated opponents. Bon accidently shooting his own gang members would still benefit the gang, as it showed a willingness to kill and instilled additional fear into the community at large.
Tallmon testified Bon had gang tattoos identifying him as a Norteño, which showed a dedication to the gang. Tallmon opined that Bon, whose moniker was "Cubs," was, at the time of the shooting, an "active member of the local hood, VNSM [Vario North Side Madera], which is a subset and controlled gang within the Norteño family of gangs directly controlled by the Nuestra Raza and the Nuestra Familia at the state level." Tallmon's conclusion was based on Bon's jail letters and phone calls (which contained content and use of gang terminology), street contacts, incidents he was involved in, information from informants, deposits ending in 14 cents made by Bon to his girlfriend's trust account, his association with other gang members, his gang tattoos, and his programming in jail with other gang members. Testimony of Fellow Gang Members
At the time of the shooting, active Norteño and paid informant, Eliseo Gallegos, was working with Sergeant Tallmon and other officers, informing on his fellow gang members. Gallegos first spoke to officers about this case when he was in jail for vehicle burglary, driving under the influence of drugs, and felony probation violations.
According to Gallegos, Bon, nicknamed "Cubs," and Lopez were both involved with the Norteño criminal street gang. The two men were "like brothers" and Lopez's entire family knew Bon. After the incident, when Lopez was at the hospital, Lopez called Gallegos to say he had been driving on Yosemite Avenue in his "white Tahoe," wearing his Cowboys jersey and hat, when somebody shot at him and that his children thought they saw Bon. Gallegos and some "friends" went to the hospital and spoke with Lopez. Lopez denied he called Gallegos or anyone else from the hospital.
A few days later, Gallegos and others spoke to Lopez again and talked to his children, who all told them the shooter was Bon. Gallegos and others went to the house where Bon was staying and confronted him. He appeared shocked and "was, like, 'Oh my gosh, what did I do?'" Gallegos took Bon to Lopez's house, where Bon told Lopez he thought they were Southerners because there was a Vatos Locos Sureños (VLS) gang driving around Madera in a white Tahoe. Bon told Lopez he was sorry. Lopez appeared shocked and quiet. Bon did not say with whom he had done the shooting, but Gallegos and others found out it was "Selena" who drove a black car and that the gun was "shipped north," meaning it was given to a different gang.
Guerrero, who was affiliated with the Norteños was, at the time he testified, charged with active gang participation and possession of methamphetamine. Guerrero knew Bon and Gallegos, as well as David "Comcast" Salazar and Herrera (Herrera lived in his house) as Norteños. Guerrero was very close to Lopez and knew his children. Although Guerrero thought Lopez's children were associating with the Norteño gang, he did not think Lopez was.
Salazar and Herrera were both granted immunity to testify, but refused to do so. Wire Taps , Letters, and Jailhouse Phone Calls
During 2011, the California Department of Justice targeted Nuestra Familia prison gang members and street-level Northerner associates in the Merced and Madera areas. Various Norteño gang members were wiretapped, including Juan "Joker" Herrera, who was in a leadership position with the Norteño gang.
Recorded as part of this ongoing investigation was a telephone call a day after the shooting in which Lopez spoke to Herrera, referring to the shooter only as "him" and saying he had first tried to deny it was him, although both Lopez and his son had seen the shooter's face. Lopez also said he had a new car, which the shooter did not know, "so instead of him confirming and like driving up he just ... assumed that somebody had a ride like mine that fucked with him a while back ...." Lopez went on to say that he understood the shooter "putting in ... work" and that he was not mad at him, but that he should have confirmed the hit. Lopez forgave the shooter but the matter was "in the big homies hands." Lopez said the shooter asked Lopez to kill him, which Lopez would have done had one of his children been killed. The shooter told Lopez he was going to give Lopez "the heat, the nine [he] shot" and pay Lopez for the windows that needed replacing.
Lopez told Garibay he bought the Suburban four days before the shooting.
On May 19, 2011, in another telephone conversation, Lopez and Herrera talked about re-routing the gun, which Lopez said he did not want and was "shooting" it to Herrera. That same day, Herrera told Guerrero that "Comcast" was supposed to get "that thing ... from the homeboy ... and give it to Mario," but that Mario (Lopez) was not keeping it but "shooting" it to the hood. Guerrero said he had already received it. However, when Guerrero testified, he denied ever possessing a gun related to this case and thought he might have been referring, in the recorded conversation, to giving Lopez a ride.
Recorded jail telephone calls or visits between Bon and his girlfriend Maricela Guerrero were played for the jury. Maricela told him a gang member had asked for "'that black thing,'" which Tallmon believed referred to a gun. Bon made remarks which Tallmon construed to mean that nothing was going to happen to him because he was of too much value to the gang. Bon suggested his trial strategy would be that he was a gang dropout. At one point, in one of the many recorded conversations, Bon rapped to Maricela, telling her she was in love with a "thug," that he was loyal to the gang lifestyle and that he had notoriety and respect.
Maricela Guerrero is referred to by her first name to distinguish her from another witness with the same last name.
Bon repeatedly asked Maricela to contact his "brother Mario" (Lopez) to get Lopez's address and give him a letter from "Preston" which he had mailed to Maricela. On June 12, 2011, Bon sent an envelope addressed to Maricela with a letter to Lopez from Preston "Sandman" Velines who, due to his rank, was in charge of the Northerners in the jail. The letter stated, inter alia, "We were sorry to hear of the tragic accident that took place," and indicated that those involved were remorseful, that unity in the gang was a priority and that Bon was depending on Lopez "to prove [Bon] was not the one." Bon indicated in several phone calls to Maricela that he was receiving a lot of respect in jail and that the "homies love me." Defense
The defense questioned the integrity of the photo line-up procedure with Salas and Ochoa. An expert on cognitive psychology/perception and eyewitness identification testified that memory is not static and, if not committed to memory, is subject to rapid decay followed by gradual decay. According to the expert, certain characteristics, such as tattoos or scars, are "attention grabbers" or visual anomalies and, if not recalled, call the identification into question.
DISCUSSION
I. SUFFICIENT EVIDENCE SUPPORTS THE EIGHT ATTEMPTED MURDER CONVICTIONS
Bon first contends the evidence is insufficient to sustain eight counts of premeditated attempted murder convictions under the "kill zone" theory, on which the prosecution relied. As argued by Bon, he "indiscriminately fired three shots into the Suburban," as well as one to three other shots "intending to kill someone, but without targeting any particular individual, and without using a means of force calculated to kill everyone in the group." As such, he argues, he is guilty of, at most, between three and six counts of attempted murder - three attempted murder convictions if we consider the three shots which hit victims; four to six attempted murder convictions if we consider the number of shots fired in total. We disagree. Standard of Review
"'"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citations.]' [Citation.]" (People v. McCurdy (2014) 59 Cal.4th 1063, 1104, italics in original.)The Kill Zone Theory
"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.) "'[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may ... be inferred from the defendant's acts and the circumstances of the crime.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 701.) The "kill zone theory ... addresses the question of whether a defendant charged with the murder or attempted murder of an intended target can also be convicted of attempting to murder other, nontargeted, persons." (People v. Stone (2009) 46 Cal.4th 131, 138, italics in original.) "[A]lthough the intent to kill a primary target does not transfer to a [nontargeted] survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what [is] termed the 'kill zone.'" (People v. Bland (2002) 28 Cal.4th 313, 329 (Bland), italics in original.) As such, a concurrent intent to kill nontargeted victims may be inferred when the defendant uses lethal force calculated to kill everyone within an area around the intended target as a means of ensuring the target's death. (Id. at pp. 329-330) Firing multiple shots directly at a small group at close range will give rise to a reasonable inference that the shooter intended to kill all in the group. (People v. Garcia (2012) 204 Cal.App.4th 542, 554.) Under such circumstances, "a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind." (People v. Stone, supra, at p. 140.) Use in this Case
In arguing Bon was guilty of eight counts of attempted murder, the prosecutor argued the "kill zone" meant "not only do you intend to kill one person, but you also intend to kill every single person in that zone of harm. And that's what we have in this case.... [¶] ... [¶] When Mr. Bon fired into that car, he intended to kill somebody, whether it be Alexis, Mario or multiple people. On top of that, not only did he intend to kill ... that group of people, he intended to kill every single person in that car." The prosecutor argued this intent was evident from the number of times Bon fired the gun and that he fired "all over the car." Analysis
Bon relies on People v. McCloud (2012) 211 Cal.App.4th 788 (McCloud) for the proposition that the evidence in his case is insufficient to sustain eight counts of premeditated attempted murder under the "kill zone" theory. In McCloud, the two defendants fired 10 bullets from a semiautomatic handgun, shooting from a parking lot into a Masonic Lodge where a party with 400 attendees was taking place. (Id at p. 790.) The shots were in retaliation for someone at the party having punched one of the defendants. (Id. at p. 799.) The shots killed two victims and wounded a third. (Id. at p. 791.) The defendants were convicted of two counts of second degree murder and 46 counts of either attempted murder (one defendant) or assault with a firearm (the other defendant). (Ibid.) McCloud held this result could not be justified by the kill zone theory, stating at most the evidence could support eight attempted murder convictions:
"In order for the kill zone theory to support 46 attempted murder convictions in the manner suggested by respondent, the record would have to contain evidence that [the defendants] tried to kill the person who punched [one defendant] by killing all 46 people in the area where [the defendant's] assailant was located. But the record contains no evidence that [the defendants] intended to kill 46 people with 10 bullets. Nor does the record contain evidence that it would have been possible for them to kill 46 people with 10 bullets (given the type of ammunition and firearm they used), or that they believed or had reason to believe it was possible. On the contrary, the evidence tended to show that it was not possible - of the three bullets that
struck [the three victims], all three lodged in their bodies rather than exiting.... [T]here is no evidence that [the defendants] 'specifically intended to kill two or more persons with [a] single shot' [citation], much less that they specifically intended to kill the 4.6 people per shot that would be necessary to support respondent's application of the kill zone theory." (Id. at pp. 799-800, fn. omitted, see also p. 807.)
We note the California Supreme Court has granted review in People v. Canizales (2014) 229 Cal.App.4th 820, review granted November 19, 2014, S221958, in which the court of appeal criticized McCloud's analysis of the kill zone theory as going "too far." (Id. at p. 825.) See also footnote 6, post.
Bon also relies on People v. Perez (2010) 50 Cal.4th 222 (Perez) in which the defendant fired a single shot from a moving car, from a distance of 60 feet, toward a group of seven police officers and one civilian, who were standing approximately 15 feet from each other in a dimly lit parking lot. (Id. at p. 224.) The lone bullet injured one officer's hand; no one else was hit. (Ibid.) Perez was convicted of eight counts of attempted murder, but the Supreme Court held that, under these circumstances, the evidence supported only one count. (Id. at p. 225.) The Court found that, while the evidence supported a finding that the defendant intended to kill any person the one shot might hit, he did not use "a means of force calculated to kill everyone in the group," and the jury could not have reasonably inferred an intent to kill multiple victims. (Ibid.)
Bon attempts to distinguish his case from People v. Vang (2001) 87 Cal.App.4th 554, 556 (Vang1), in which the defendants shot at two occupied houses and were convicted of, inter alia, 11 counts of attempted murder. We concluded the jury drew a reasonable inference of specific intent to kill all those residing in the two houses "in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons." (Id. at pp. 563-564.; see Bland, supra, 28 Cal.4th at p. 330 [citing Vang1 as a kill zone case even though that term was not used by this court in Vang1].) Bon contends Vang1 is distinguishable as the specific intent to kill every living being in the Suburban is not established by three bullets shot into the car with a handgun.
We find the facts here are much more akin to Vang1 than they are to either McCloud or Perez. Multiple factors demonstrate Bon's creation of a kill zone. The evidence before the jury was that Bon admitted to Lopez that he fired at the white Suburban because he "thought that they were southerners," in essence admitting that he was looking to shoot more than one person. This intent was also borne out by the fact that Bon waited to shoot at the white Suburban, in which eight people were confined in close quarters, by pulling up next to the Suburban on the driver's side and shooting directly at the vehicle five to six times. Three shots hit the Suburban directly. One bullet hit Alexis, who was in the second row of the Suburban right behind Lopez, the driver. One shot hit Veronica, who was sitting in the second row of the Suburban on the passenger's side. One bullet grazed Lopez's left arm, with the bullet going through the left sleeve of his shirt.
Evidence of the trajectories of the bullets within the cabin of the Suburban showed the bullets, taken in sequence, hit the driver's side rear door first, the driver's side front door, and then the front windshield of the Suburban. One bullet traveled across the Suburban, starting on the driver's side, going through the driver's head rest and coming within inches of two-year-old Andrew, who was in a child seat in the middle of the second row, before it exited the vehicle on the opposite passenger side window in the third row. This particular bullet travelled within two to three feet of any of the vehicle's occupants, "except maybe the front passenger."
Contrary to Bon's assertion, we find these factors demonstrated his intent to create a kill zone wherein he used lethal force designed and intended to kill everyone in the area around the targeted victim or victims as the means of accomplishing the killing of that victim or victims. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that Bon intended to kill not only his targeted victim or victims, but also all others he knew were in the zone of fatal harm. (Bland, supra, 28 Cal.4th at pp. 329-330.) Substantial and sufficient evidence supports all of Bon's eight convictions for attempted murder.
II. THE TRIAL COURT DID NOT PREJUDICIALLY ERR WHEN IT INSTRUCTED ON THE "KILL ZONE" THEORY OF LIABILITY
Bon next contends the trial court erred in giving the "kill zone" instruction, CALCRIM No. 600, as the instruction is defective in "multiple ways." We find no prejudicial error.
We note cases involving whether the jury was properly instructed on the kill zone theory are currently before the California Supreme Court in People v. Canizales, supra, 229 Cal.App.4th 820, review granted; People v. Cerda (Jan. 23, 2015, B232572, B235674) [nonpub. opn.], review granted April 22, 2015, S224430; and People v. Sek (2015) 235 Cal.App.4th 1388, review granted July 22, 2015, S226721.
At the outset, it is worth noting that defense counsel did not object at the jury instruction conference to the People's request that CALCRIM No. 600 be given. Defense counsel did specifically ask that all occupants of the Suburban be named individually in the instruction, which the trial court agreed to do. Defense counsel did not request clarifying language for that instruction. As a result, Bon's complaints about CALCRIM No. 600 are forfeited on appeal. (People v. Campos (2007) 156 Cal.App.4th 1228, 1238.) In any event, we conclude his argument is without merit. The Instruction
The trial court instructed the jury on the "kill zone" theory of liability, pursuant to a modified version of CALCRIM 600, as follows:
"To prove that the defendant is guilty of attempted murder, the People must prove that, (1), the defendant took at least one direct, but ineffective, step toward killing another person; and (2), the defendant intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder, or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation, and shows that a person is putting his or her plan into action. [¶] A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] A person who attempts to commit murder is guilty of attempted murder, even if, after taking a direct step toward killing, he or she abandons
further efforts to complete the crime, or his or her attempts fail[], or is interrupted by someone or something beyond his or her control. [¶] On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing the murder, then that person is not guilty of attempted murder. [¶] A person may intend to kill a specific victim or victims, and at the same time intend to kill everyone in a particular zone of harm or kill zone. [¶] In order to convict the defendant of the attempted murder of Elsa Hernandez, Alexis Hernandez, Andrew Lopez, Veronica Laran, Mario Lopez, Jr., Mario [sic] Lopez[], and/or Lyana Flores. The People must prove that the defendant not only intended to kill Mario Lopez, but also either intended to kill Elsa Hernandez, Alexis Hernandez, Andrew Lopez, Veronica Laran, Mario Lopez, Jr., Manuel Lopez and/or Lyana Flores, or intended to kill everyone within the kill zone. [¶] If you have a reasonable doubt whether the defendant intended to kill Elsa Hernandez, Alexis Hernandez, Andrew Lopez, Veronica Laran, Mario Lopez, Jr., Manuel Lopez, or Lyana Flores, or intended to kill Mario Lopez by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Elsa Hernandez, Alexis Hernandez, Andrew Lopez, Veronica Laran, Mario Lopez, Jr., Manuel Lopez and/or Lyana Flores."Kill Zone Undefined and Argumentative
The written instruction correctly states "Manuel Lopez."
Bon first argues the kill zone instruction was legally erroneous because it does not define the terms "kill zone" or "zone of harm." He asserts that the absence of definitions for these terms does not adequately provide a meaningful limit for the jury to determine who is in the zone and who is not. He also contends the instruction is argumentative as the term "kill zone" is "inflammatory." These contentions are not persuasive.
The "kill zone theory of multiple attempted murder is necessarily defined by the nature and scope of the attack." (People v. Perez, supra, 50 Cal.4th at p. 232.) In other words, it presents a question of fact not amenable to a rigid definition. The terms "kill zone" and "zone of harm" are not technical legal terms with a peculiar meaning that must be defined for a jury of laypeople. (See People v. Estrada (1995) 11 Cal.4th 568, 574.) "We credit jurors with intelligence and common sense [citation] and do not assume that these virtues will abandon them when presented with a court's instructions." (People v. Coddington (2000) 23 Cal.4th 529, 594, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069 & fn. 13.)
Bon also contends the prosecutor's argument underscored the misleading nature of the instruction. In particular, he cites the prosecutor's argument to the jury that they "just need to look at all those shots fired at and all over a car full of people," suggesting that the jury need not ascertain whether each of the eight were in the kill zone, but that it could "just lump all of them together." However, as noted above, the prosecutor's argument, taken as a whole, accurately conveyed the kill zone theory, which she summarized as meaning "not only do you intend to kill one person, but you also intend to kill every single person in that zone of harm. And that's what we have in this case. [¶] ... [¶] When Mr. Bon fired into that car, he intended to kill somebody, whether it be Alexis, Mario or multiple people. On top of that, not only did he intend to kill ... that group of people, he intended to kill every single person in that car."
We find the instruction neither lacking in definition nor find it argumentative. Failure to Determine Each Victim Individually
Bon next contends CALCRIM No. 600 failed to tell the jurors that they needed to determine, individually, as to each of the many victims, who was in the kill zone and who was not. Specifically, Bon argues that "confusing use of 'and/or' in several places" in the instruction could have been read as "reinforcing an approach which lumped all the passengers in the car together, rather than individually determining the facts as to each passenger."
Again, the instruction read, in pertinent part,
"In order to convict the defendant of the attempted murder of Elsa Hernandez, Alexis Hernandez, Andrew Lopez, Veronica Laran, Mario Lopez, Jr., Mario [sic] Lopez[], and/or Lyana Flores. The People must prove that the defendant not only intended to kill Mario Lopez, but also either intended to kill Elsa
Hernandez, Alexis Hernandez, Andrew Lopez, Veronica Laran, Mario Lopez, Jr., Manuel Lopez and/or Lyana Flores, or intended to kill everyone within the kill zone. [¶] If you have reasonable doubt whether the defendant intended to kill Elsa Hernandez, Alexis Hernandez, Andrew Lopez, Veronica Laran, Mario Lopez, Jr., Manuel Lopez, or Lyana Flores, or intended to kill Mario Lopez by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Elsa Hernandez, Alexis Hernandez, Andrew Lopez, Veronica Laran, Mario Lopez, Jr., Manuel Lopez and/or Lyana Flores."
See footnote 7, ante.
In the recent case of People v. Falaniko (2016) 1 Cal.App.5th 1234 (Falaniko), decided after briefing in this case was completed, a modified version of CALCRIM No. 600 was given, somewhat similar to that given here, as follows: "'In order to convict the defendant of the attempted murder of Meki Siafega as charged in count 2, Esther Vaafuti as charged in count 3, and Kelly Kese as charged in count 4, the People must prove that the defendant not only intended to kill a person, but also either intended to kill Meki Siafega, Esther Vaafuti and/or Kelly Kese, and/or intended to kill everyone within the kill zone.'" (Falaniko, supra, at p. 1242.) Since Falaniko was charged with seven counts of attempted murder arising out of three separate shooting incidents, the trial court gave similar instructions on the other two shooting incidents as well. The appellate court concluded that the instruction misstated the law, explaining, "Even if the jury rejected the kill zone inference, the court's modification of the instruction with the disjunctive 'or' permitted the jury to convict on all charges of attempted murder in each of the three shooting incidents without finding specific intent as to each victim individually." (Id. at p. 1244.)
The Falaniko court held that the error was reversible as to two of the three shooting incidents, but found the error harmless as to the one other incident, in which the defendant stood in the middle of the street and fired more than 30 shots at three individuals seated on the front porch of a home; two of the individuals were seriously injured. (Falaniko, supra, 1 Cal.App.5th at pp. 1238, 1246.) The court described this incident as "a classic kill zone scenario" in which the evidence was "undisputed and overwhelming." (Id. at p. 1246.) It concluded the instructional error was harmless because, under that scenario, "the jury could properly convict under the kill zone theory." (Ibid.)
Here, too, assuming instructional error occurred, it was harmless. As discussed above, there was substantial evidence that this was a "classic kill zone" case: Bon pursued and attacked his targeted victim or victims in such a way as to demonstrate his concurrent intent to kill everyone inside the vehicle. Thus, the jury properly could - and necessarily did - convict Bon of the attempted murders of all eight passengers under the kill zone theory. There is no substantial evidence to the contrary. We thus discern no reasonable probability that the instruction, if erroneous, affected the verdict. Concurrent and Specific Intent
Bon also argues the instruction misstates the specific intent to kill element required for an attempted murder conviction, noting that, while the instruction refers to the concept of concurrent intent, it does not contain "a single reference to specific intent." He contends further that the instruction failed to explain that the kill zone theory does not apply if he merely subjected everyone in the kill zone to harm, but did not care whether the others in the vehicle lived or died.
The fundamental premise underlying this argument is that the concept of "concurrent intent to kill" is not a legally recognized theory for prosecuting murder. This premise is faulty. First, the kill zone theory is relevant to the crime of attempted murder, not murder. Second, although concurrent intent "is not a legal doctrine," (Bland, supra, 28 Cal.4th at p. 331 & fn. 6) our Supreme Court has recognized that it is "a reasonable inference the jury may draw in a given case." (Ibid.) In Bland, the seminal case discussing the kill zone theory, the Court held that a jury finding that a defendant harbored the specific intent to kill one victim and the concurrent intent to kill others nearby "fully supports attempted murder convictions as to" the others nearby. (Id. at pp. 330-331.) It further held that "a primary intent to kill a specific target does not rule out a concurrent intent to kill others" - i.e., the requisite specific intent necessary to sustain the attempted murder convictions as to the non-primary targets. (Id. at p. 331 & fn. 6.)
Bon's claims are rebutted by the language of the instruction, which specifically required that the prosecution not only prove Bon intended to kill Lopez, but also either intended to kill each of the eight victims or intended to kill everyone within the kill zone.
In addition, the jury was instructed that, in order to find the attempted murder of each victim was willful, deliberate and premeditated, it was required to conclude Bon "intended to kill when he acted." (CALCRIM No. 601.)
We find no prejudicial error in the giving of the "kill zone" instruction.
III. SUFFICIENT EVIDENCE UPHOLDS THE CRIMINAL STREET GANG ENHANCEMENTS
Bon contends the evidence was insufficient to sustain the jury's true findings on the gang enhancement allegations as to all eight counts of attempted murder and two counts of discharge of a firearm at an occupied motor vehicle. Specifically, he argues, "[t]he evidence was constitutionally insufficient to show that the offenses were committed for the benefit of the Norteño criminal street gang." There is no merit to this claim. Standard of Review
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)Legal Principles and Analysis
"[T]he [Street Terrorism Enforcement and Prevention] Act prescribes increased punishment for a felony if it was related to a criminal street gang. (§ 186.22, subd. (b)(1).) '[T]o subject a defendant to the penal consequences of the STEP Act, the prosecution must prove that the crime for which the defendant was convicted had been "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b)(1) ....) In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period. (§ 186.22, subds. (e) and (f).)' [Citation.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1047, fn. omitted.)
A gang expert may testify on the ultimate question of whether the defendant was acting for the benefit of a gang. (People v. Valdez (1997) 58 Cal.App.4th 494, 507-509 [where participants were diverse group affiliated with various gangs, trial court did not abuse its discretion by letting gang expert testify "the participants acted for the benefit of each and every gang represented by the caravan" of vehicles].)
"Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of ... a[] criminal street gang' within the meaning of section 186.22(b)(1). (See, e.g., People v. Vazquez (2009) 178 Cal.App.4th 347, 354 ... [relying on expert opinion that the murder of a nongang member benefited the gang because 'violent crimes like murder elevate the status of the gang within gang culture and intimidate neighborhood residents who are, as a result, "fearful to come forward, assist law enforcement, testify in court, or even report crimes that they're victims of for fear that they may be the gang's next victim or at least retaliated on by that gang"']; People v. Romero (2006) 140 Cal.App.4th 15, 19 ... [relying on expert opinion that 'a shooting of any African-American men would elevate the status of the shooters and their entire [Latino] gang'].)" (People v. Albillar, supra, 51 Cal.4th at p. 63.)
Gang Expert Tallmon testified that the Norteño street gang is a parent gang under which local subsets, such as Vario North Side Madera (VNSM) of which Bon is an active member, are affiliated. Sureños or "scraps" are the Norteño's rival gang. Tallmon testified that shootings benefit the gang by contributing to its reputation and instilling fear in the community. Gang members are required to commit crimes for the benefit of the gang and drive-by shootings are an accepted form of crime for the Norteño gang and its subsets. Tallmon opined that, even though Bon accidentally shot at a member of his own gang, it benefited the gang because it showed dominance, a willingness to shoot and a willingness to kill, which intimidated the general public.
Bon contends there was no evidence that the shooting was "committed for the benefit of ... any criminal street gang" as required by section 186.22, subdivision (b)(1). Bon argues harming one's own gang members was not helpful to the gang and, in this case, was against Norteño rules prohibiting shooting noncombatant women and children. Bon said this lack of benefit to the gang was apparent from the statements made by him that he was willing to have Lopez kill him for the mistake and statements by other gang members that he would need to be somehow punished for the shooting.
We disagree. Bon does not contest his gang status. Furthermore, his own explanation for the shootings was that he thought he was shooting at rival Sureños. Expert opinion that particular conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was committed for the benefit of a criminal street gang. (People v. Albillar, supra, 51 Cal.4th at p. 63.) So not only did this drive-by shooting benefit the gang by intimidating the general public, it also benefited the Norteño's because Bon was shooting at what he believed to be rival gang members. Bon's decision to shoot at the Lopez vehicle, in which Lopez was wearing rival gang colors (the Dallas Cowboys hat and jersey), was directed by his desire to act on behalf of and for the benefit of his gang. That Bon was mistaken does not change this.
The evidence is sufficient to support the true findings on the gang enhancements.
IV. COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO QUESTIONS IN WHICH THE GANG EXPERT WAS ASKED TO OPINE IF BON'S CRIMES WERE GANG-MOTIVATED
Bon contends his trial counsel rendered ineffective assistance of counsel by failing to object when the prosecution's gang expert Tallmon opined specifically that Bon shooting at a car he believed to be occupied by rival gang members and accidentally hitting members of his own gang benefited the Norteño criminal street gang. We find no merit to his argument. Procedural Background
Bon takes issue with the following exchange, during direct examination, between the prosecutor and Tallmon:
"Q: Assuming that Mr. Bon shot at a car that he believed to be occupied by rival gang members, and two people were shot as a result of that shooting, do you have an opinion regarding whether this conduct would benefit the Norteño criminal street gang?
"A: Of course.
"Q: What is the basis of that opinion?
"A: The basis of that opinion, again, is the information I've received in this investigation and the investigation of many, many other shootings, both drive-by and walk-up-type shootings and other type[s] of shootings. And speaking with many gang members, many gang member families, other gang investigators, gang intervention officers or gang intervention specialists at schools. [¶] The consistency here that I've gleaned from all that is, it's about advertising. And if you shoot your opponent, you show dominance over them, which gives you more of a market share.... [I]f you show aggression and show ... your willingness to commit violence, your appetite for violence, then you show that you're dangerous and you do such a thing that the gang members that do shootings do so, not only to eliminate their opponents, and if, as in this case, you have shots that are directed into the passenger compartment of a car at where the people would be, contrasting what we talked about a while ago with the shots along the roof line of the house, but not only to eliminate an opponent, but to show that your opponent should be scared of you. If they're scared of you, they're less likely to resist; they're less likely to impede on your drug sales, your prostitution operation, or whatever it is you're doing to make money."
"Q: ... [H]ow about the fact that - assume that Mr. Bon accidentally shot at members of his own gang. Would the Norteño gang still benefit from ... that action?Applicable Law and Analysis
"A: They would.
"Q: Why?
"A: In a lot of ways, though I don't think they would intend for that to happen. As you said, this is a hypothetical involving an accident. The ... fact is that they still show that domination. They still show that willingness to shoot in anger. They still show that willingness to kill. And the community - and the average citizen when they hear about this, when they witness this, probably isn't going to really care that it was just a matter of target identification. Because it still makes fear if you drive down that road and think of somebody shooting just indiscriminately in the middle of the day, that's something that any reasonable person would be concerned about. Whether the guy is shooting at the right person or not doesn't change that. In some ways it may actually increase the fear of the community at large because there wasn't proper target identification. He didn't check on who he was shooting at, and that means he could have made that mistake about anybody or at least anybody who's a Cowboy's fan. It still shows dominance. It still shows the active gang mentality in that area. It still shows that that's a gang area that that gang is laying claim to.
"Q: So assuming that Mr. Bon shot at a car that he believed to be occupied by rival gang members, what is your opinion with regards to whether this would benefit the Norteño criminal street gang?
"A: It absolutely would."
Bon contends: "[W]here, as here, the expert opines multiple times that 'Mr. Bon's' shooting at a car he believed occupied by rival gang members or 'Mr. Bon's' accidentally shooting a fellow gang member benefitted the Norteño gang, it sounds like the expert had personal knowledge concerning 'Mr. Bon's' state of mind" and "the gang expert's testimony crossed the line between offering an opinion based on a hypothetical ground in the facts of the case and supplanting the jurors." As such, he contends, defense counsel should have objected.
Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right "entitles [the defendant] to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' [Citations.]" (Ibid.) A defendant's burden of establishing ineffective assistance "is difficult to carry on direct appeal, as we have observed: '"Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational purpose for [his or her] act or omission."' [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 437.) Second, he must show prejudice flowing from counsel performance or lack thereof. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692.) "'"'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]'"' [Citations.]" (People v. Johnson (2016) 62 Cal.4th 600, 653.) As an ineffective assistance of counsel claim fails on an insufficient showing of either element, a court need not decide the issue of counsel's alleged deficiencies before deciding if prejudice occurred. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
"Expert testimony in the form of an opinion may be based on hearsay or facts outside the personal knowledge of the expert. [Citation.]" (People v. Harris (2013) 57 Cal.4th 804, 847.) "Thus, a gang expert may rely upon conversations with gang members, on his or her personal investigations of gang-related crimes, and on information obtained from colleagues and other law enforcement agencies. [Citations.]" (People v. Hill (2011) 191 Cal.App.4th 1104, 1121-1122.) And, as we discussed above, expert opinion concerning whether the defendant acted for the benefit of a gang is admissible. (People v. Valdez, supra, 58 Cal.App.4th at pp. 507-509.) However, in general, "a witness cannot express an opinion concerning the guilt or innocence of the defendant. [Citations.]" (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.)
Bon relies on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew) to support his argument that Tallmon impermissibly opined on Bon's guilt. In Killebrew, the defendant was convicted of conspiring to possess a handgun after police found handguns in and around three vehicles occupied by gang members. The defendant was seen in the area of one of the vehicles. (Id. at pp. 647-649.) On appeal, the defendant challenged the admissibility of the gang expert's testimony "that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun," arguing "that these opinions on the subjective knowledge and intent of each occupant in the car were improperly admitted." (Id. at p. 652, fn. omitted.) We held that a police gang expert's testimony regarding the defendant's subjective knowledge and intent was inadmissible. (Id. at pp. 647, 652, 658.) And, because the gang expert's testimony was the only evidence offered by the prosecution to establish the elements of the crime, as against the defendant, reversal was required. (Id. at pp. 658-659.)
Our Supreme Court expressly limited Killebrew and made clear that an expert is not prohibited from answering hypothetical questions regarding the intent of hypothetical persons, but is merely prohibited from opining on the knowledge or intent of a specific defendant on trial. (People v. Vang (2011) 52 Cal.4th 1038, 1047-1048 (Vang2).) The Supreme Court explained:
"To the extent Killebrew, supra, 103 Cal.App.4th 644, purported to condemn the use of hypothetical questions, it overlooked the critical difference between an expert's expressing an opinion in response to a hypothetical question and the expert's expressing an opinion about the defendants themselves. Killebrew stated that the expert in that case 'simply informed the jury of his belief of the suspects' knowledge and intent on the night in question, issues properly reversed to the trier of fact.' (Killebrew, supra, 103 Cal.App.4th at p. 658.) But, to the extent the testimony responds to hypothetical questions, as in this case ... such testimony does no such thing. Here, the expert gave the opinion that an assault committed in the manner described in the hypothetical
question would be gang related. The expert did not give an opinion on whether defendants did commit an assault in that way, and thus did not give an opinion on how the jury should decide the case. [¶] ... [¶] ... The jury still plays a critical role in two respects. First, it must decide whether to credit the expert's opinion at all. Second, it must determine whether the facts stated in the hypothetical questions are the actual facts, and the significance of any difference between the actual facts and the facts stated in the questions." (Id. at pp. 1049-1050.)
The court also stated: "We disapprove of any interpretation of Killebrew, supra, 103 Cal.App.4th 644, as barring, or even limiting, the use of hypothetical questions. Even if expert testimony regarding the defendants themselves is improper, the use of hypothetical questions is proper." (Vang2, supra, 52 Cal.4th at pp. 1047-1048, fn. 3.)
Tallmon's disputed testimony is distinguishable from the opinions presented in Vang2. Tallmon did not opine on whether a hypothetical gang member, involved in crimes committed in the manner described by a hypothetical question, would have committed the crimes for the benefit of the gang. Instead, Tallmon, in effect through the prosecutor's questions, testified directly that Bon acted for the benefit of the Norteños. But this does not end our analysis, as Bon's claim fails to show his trial counsel's failure to object was objectively unreasonable.
First, it is not clear than an objection would necessarily have been sustained. "Defense counsel does not render ineffective assistance by declining to raise meritless objections. [Citations.]" (People v. Ochoa (2011) 191 Cal.App.4th 664, 674, fn. 8.) In dicta, the Vang2 court recognized that, "in some circumstances, expert testimony regarding the specific defendants might be proper." (Vang2, supra, 52 Cal.4th at p. 1048, fn. 4, citing People v. Valdez, supra, 58 Cal.App.4th at pp. 503-504, 507-509 [upholding admission of expert opinion testimony, not in the form of a hypothetical, that the defendant and others acted for the benefit of gangs].)
And, even if we assume that an objection would have been properly sustained, Bon cannot show ineffective assistance. In order to establish ineffective assistance of counsel, it must be shown that the omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make. (People v. Frierson (1979) 25 Cal.3d 142, 158.) A decision on whether to object to evidence ordinarily is a tactical decision, and a failure to object "seldom establish[es] a counsel's incompetence." (Ibid.)
Bon's counsel may very well have acted with a tactical purpose when he failed to object. Had counsel objected, the trial court would very well have allowed the prosecutor to rephrase the question in the form of a hypothetical using the facts of this case, without using Bon's name. Thus, we cannot say Bon's trial counsel was necessarily incompetent in failing to object, as an objection might have served only to highlight the testimony further.
Even if Bon's trial counsel's failure to object fell below the objective standard of reasonableness, Bon cannot show prejudice. There was plenty of strong evidence that Bon committed the shootings for the benefit of the Norteños. It is reasonably probable that the result of the proceedings would have been no different if the Tallmon/prosecutor exchange had been only in the form of a purely proper hypothetical. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)
V. TRIAL COURT DID NOT PREJUDICIALLY ERR IN WHEN IT INSTRUCTED WITH CALCRIM NO. 362 ON THE CONSCIOUSNESS OF GUILT: FALSE STATEMENTS
Bon contends the trial court prejudicially erred and violated his due process rights by instructing the jury with CALCRIM No. 362 on the consciousness of guilt in regards to false statements. He contends the instruction creates an unlawful presumption of guilt lightening the prosecution's burden of proof. He also contends the evidence was insufficient to give the instruction.
Bon makes this argument separately. For purposes of clarity, we consolidate both arguments pertaining to CALCRIM No. 362.
Instructional errors present questions of law and are reviewed de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) We find no prejudicial error. Procedural Background
The prosecutor requested CALCRIM No. 362, Consciousness of Guilt: False Statements, based on Bon having given a false name and false date of birth to Officer Jimenez when he was stopped for driving under the influence on May 3, 2011, almost two weeks after the shootings. Defense counsel objected to the giving of the instruction, because the statement the prosecutor relied upon was not made in relation to the charges in the instant case. The prosecutor argued Bon knew he was being sought in the connection with the shootings, citing a statement Bon made while in jail where he indicated "all of F'ing Madera" was looking for him. The trial court found a sufficient basis for the instruction, which was given as follows:
The prosecutor erroneously stated the false statement was made to Officer Yang when Bon was at Madera Community Hospital, where he was taken after being stopped for the DUI by Officer Jimenez.
"If the defendant made a false or misleading statement before this trial relating to the crime charged, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."Applicable Law and Analysis
"'False statements regarding incriminating circumstances constitute evidence which may support an inference of consciousness of guilt. [Citations.]'" (People v. Flores (2007) 157 Cal.App.4th 216, 221, quoting People v. Showers (1968) 68 Cal.2d 639, 643.) The false nature of the defendant's statement may be shown by inconsistencies in the defendant's own testimony, his or her pretrial statements, or by any other prosecution evidence. (People v. Kimble (1988) 44 Cal.3d 480, 498; People v. Edwards (1992) 8 Cal.App.4th 1092, 1103 ["The falsity of a defendant's pretrial statement may be shown by other evidence even when the pretrial statement is not inconsistent with defendant's testimony at trial."].) Accordingly, "[a] trial court properly gives consciousness of guilt instructions where there is some evidence in the record that, if believed by the jury, would sufficiently support the inference suggested in the instructions. [Citation.]" (People v. Bowman (2011) 202 Cal.App.4th 353, 366.)
Here, the trial court did not err in instructing on CALCRIM No. 362. When Bon was stopped by Officer Jimenez on May 3, 2011, he gave the officer a false name and date of birth in order to avoid being identified. While this occurred almost two weeks after the shooting, this dishonesty is not completely separated from his acts of attempted murder. And under the conditional language of CALCRIM No. 362, the jury would initially have to decide whether Bon's pretrial statement was, in fact, false or misleading; if it found the statement was false or misleading, it could then consider whether the statement indicated an awareness of guilt on Bon's part and, in turn, what meaning and weight to ascribe to the statement. Under the circumstances, it was appropriate to permit the jury to make these determinations.
Nor do we find the instruction unconstitutional. The California Supreme Court has held that CALCRIM No. 362, along with its nearly-identical predecessor, CALJIC No. 2.03, is a correct statement of the law and does not run afoul of constitutional strictures. (People v. Howard (2008) 42 Cal.4th 1000, 1024-1025; People v. Nakahara (2003) 30 Cal.4th 705, 713; People v. Jackson (1996) 13 Cal.4th 1164, 1223-1224; People v. Kelly (1992) 1 Cal.4th 495, 531-532.) Bon, however, contends CALCRIM No. 362 effectively told the jury it may consider his awareness of his guilt of some wrongdoing as guilt of the specified crimes charged. As argued by Bon, "The phrase 'aware of his guilt of the crime' does not mean consciousness of some psychological or moral wrongdoing; it can only mean consciousness of having committed the specific offense charged."
In People v. Crandell (1988) 46 Cal.3d 833 (Crandell), abrogated on another point by People v. Crayton (2002) 28 Cal.4th 346, 364-365, the defendant similarly argued that the jury could take the word "guilt" in the phrase "consciousness of guilt" in CALJIC No. 2.03, CALCRIM No. 362's predecessor, to refer to "the ultimate determination of the truth or falsity of the criminal charges" (i.e., legal guilt). (Crandell, supra, at p. 871.) The Supreme Court concluded that any "fear that the jury might have confused the psychological and legal meanings of 'guilt' is unwarranted," and that reasonable jurors "would understand 'consciousness of guilt' to mean 'consciousness of some wrongdoing' rather than 'consciousness of having committed the specific offense charged.'" (Ibid.)
CALJIC No. 2.03 read: "If you find that before this trial [a] [the] defendant made a willfully false or deliberately misleading statement concerning the crime[s] for which [he] [she] is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide."
Bon contends Crandell is not controlling because the "careful distinction" reflected in CALJIC No. 2.03 is not reflected in CALCRIM No. 362. As argued by Bon, CALCRIM No. 362 abandoned the language in CALJIC No. 2.03, which used the phrase "consciousness of guilt" as approved of in Crandell, and instead employs the phrase "aware of his guilt of the crime," which told the jury it could link his statement to an awareness of his guilt of the specific offense charged.
We find Bon's argument foreclosed by People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, in which we found no constitutional infirmity on account of the term "aware of his guilt" in CALCRIM No. 372, a related "flight" instruction. Under Hernandez Rios, the use of the term "aware of his guilt" in the CALCRIM instructions on false statements, flight, and fabrication of evidence, respectively, is entirely consistent with the use of the term "consciousness of guilt" in the predecessor line of CALJIC instructions on the same topics. (Hernandez Rios, supra, at pp. 1158-1159.)
We conclude the trial court did not err in instructing the jury with CALCRIM No. 362. Further, assuming arguendo the trial court erred by instructing with CALCRIM No. 362, the error was harmless. First, the instruction would apply only if the jury initially determined Bon made a false or misleading statement regarding the charged crime. Second, even were the jury to make that determination, the inference permitted by CALCRIM No. 362 is a permissive one as the instruction specifies that, "[i]f you conclude that the defendant made the statement, it is up to you to decide its meaning and importance." The jury was also instructed that Bon's guilt could not be proved solely by evidence that he made a false or misleading statement. In light of the conditional and permissive nature of the instruction, and of our consideration of the entire record, we cannot conclude it is reasonably probable Bon would have obtained a more favorable verdict had the trial court not instructed the jury with CALCRIM No. 362. (People v. Rankin (1992) 9 Cal.App.4th 430, 436; People v. Watson (1956) 46 Cal.2d 818, 836.)
VI. THE TRIAL COURT DID NOT PREJUDICIALLY ERR WHEN IT INSTRUCTED WITH CALCRIM NO. 372 ON THE CONSCIOUSNESS OF GUILT FROM FLIGHT
Bon contends the trial court erred in instructing the jury, pursuant to CALCRIM No. 372, on the consciousness of guilt from flight as there was no evidence to support these instructions. We again use an independent or de novo standard of review and find no prejudicial error. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Richardson (2008) 43 Cal.4th 959, 1028.) Procedural Background
The prosecutor requested CALCRIM No. 372, the instruction on the consciousness of guilt from flight because the crime occurred on April 21, 2011, and when Bon was stopped on May 3, 2011 by Officer Jimenez, he "fled immediately." Defense counsel argued the flight was too remote in time, almost two weeks after the alleged crime occurred. Defense counsel argued Bon could have been running from another crime, the DUI, for which he was arrested. The trial court determined the instruction was appropriate, stating, "I will give the 372 instruction and I'll leave it to the jury to determine whether that flight was related or not, and they can make whatever conclusion they may draw from that."
CALCRIM No. 372, as given, stated:
"If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."Applicable Law and Analysis
A flight instruction is generally proper "'"where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." [Citations.]" '[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.'"'" (People v. Cage (2015) 62 Cal.4th 256, 285; People v. Richardson, supra, 43 Cal.4th at p. 1020; § 1127c.) The facts of each case determine whether it is reasonable to infer that flight shows a consciousness of guilt. (People v. Mason (1991) 52 Cal.3d 909, 941 (Mason).)
Section 1172c provides: "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given."
Our Supreme Court in Mason, supra, 52 Cal.3d 909, held that a flight instruction was proper where the defendant was charged with five murders all committed on separate dates. Approximately four weeks after, but in the same vicinity of, one of the murders, the defendant led law enforcement on a high-speed automobile chase but eventually escaped on foot. The pursuing deputies were able to see the defendant's face and found a work order in his abandoned vehicle bearing his first initial and last name, along with his parents' address. The defendant was arrested the following month. (Id. at pp. 924-925.) To show consciousness of guilt, the trial court admitted evidence of the defendant's high-speed flight from law enforcement, and it instructed the jury pursuant to section 1127c. (Id. at p. 941.) Although the defendant in Mason argued the flight was so remote from the charged offense that it "'was of marginal probative value, if any,'" the court disagreed, stating, "Common sense ... suggests that a guilty person does not lose the desire to avoid apprehension for offenses as grave as multiple murders after only a few weeks." (Ibid.)
On the facts before us, the inference that Bon fled on May 3, 2011, rationally supported an inference that he was conscious of his guilt. It was proper for the trial court to instruct on flight. Even if instructional error occurred, Bon cannot establish prejudice. CALCRIM No. 372 did not presuppose the existence of flight; it left it up to the jury to determine whether Bon's conduct constituted flight, and if so, the weight it was entitled to. There was ample evidence, other than flight, tying Bon to the attempted murders. Based on this record, any error in the giving of CALCRIM No. 372 was harmless beyond a reasonable doubt. We reject Bon's claim to the contrary.
VII. NO CUMULATIVE ERROR
Bon contends there was cumulative error. "To the extent there are a few instances in which we have found error or assumed its existence, no prejudice resulted. The same conclusion is appropriate after considering their cumulative effect." (People v. Valdez (2012) 55 Cal.4th 82, 181.) Similarly, the cumulative effect of any errors in this case was not prejudicial.
VIII. CORRECTIONS TO THE MINUTES AND ABSTRACT OF JUDGMENT
Bon seeks correction of a clerical error in the sentencing minutes and abstract of judgment. As Bon notes, the sentencing minute order and abstract of judgment erroneously refer to section 12022.5, subdivision (a)(1), instead of section 12022.5, subdivision (a). Respondent agrees the clerical errors Bon has identified must be corrected, as do we.
At one point, section 12022.5, subdivision (a) included paragraph (1), governing personal use of a firearm during the commission or attempted commission of a felony, and paragraph (2), governing carjacking. Effective January 1, 2003, section 12022.5 was amended to remove paragraph (2) but retained as subdivision (a) the text relating to personal use from paragraph (1). (Stats. 2002, ch. 126, § 3.) When the offenses here were committed, section 12022.5 did not have a subdivision (a)(1), only a subdivision (a), which provides for additional punishment for those who personally use a firearm in the commission of a felony or attempted felony.
A second amended information, dated April 25, 2014, erroneously alleged Bon personally used a handgun within the meaning of sections 12022.5, subdivision (a)(1) as to all counts. The jury was correctly instructed with CALCRIM No. 3146, Personally Used Firearm, the pattern instruction for section 12022.5. The verdict forms as to all 10 counts also contain the same non-existent paragraph (1), that defendant "personally used a firearm, within the meaning of ... Penal Code Section 12022.5(a)(1)." The same is similarly reflected in the reporter's transcript, the November 14, 2014, sentencing minutes and in the abstract of judgment.
Bon does not contend he was sentenced incorrectly. We agree that clerical error occurred and grant his request that the sentencing minute order and abstract of judgment be corrected to accurately reflect the enhancement as a violation of section 12022.5, subdivision (a), rather than its depiction as a violation of section 12022.5, subdivision (a)(1).
Although see part IX. of the Discussion, post.
IX. TRUE FINDINGS ON TWO GUN ENHANCEMENTS MUST BE STRICKEN
Bon contends the personal firearm use enhancement, section 12022.5, subdivision (a), imposed and stayed on counts 9 and 10, discharging a firearm at an occupied vehicle in violation of section 246, must be stricken. Respondent agrees, as do we.
See part VIII. of the Discussion, ante.
Section 12022.5, subdivision (a) provides as here relevant: "[A]ny person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense." Use of a firearm is an element of section 246. As pertinent here, section 246 describes the crime of shooting at an occupied vehicle as follows: "Any person who shall maliciously and willfully discharge a firearm at an ... occupied motor vehicle ...is guilty of a felony." Because use of a firearm is an element of section 246, the plain language of section 12022.5, subdivision (a) provides that the firearm enhancement does not apply. As the California Supreme Court has stated, referring to a prior version of section 12022.5, "Section 12022.5, subdivision (a)(1), provides generally that the enhancement does not apply if firearm use is an element of the underlying offense, which precludes its application to the crime of discharging a firearm at an occupied vehicle." (People v. Kramer (2002) 29 Cal.4th 720, 723, fn. 2.)
When an enhancement cannot be imposed, it is error to impose and stay the enhancement; it must be stricken. (See, e.g., People v. Haykel (2002) 96 Cal.App.4th 146, 151 [enhancement either imposed or stricken, not stayed]; People v. Jones (1992) 8 Cal.App.4th 756, 758; People v. Ruiz (1992) 3 Cal.App.4th 1251, 1256; see also People v. Jordan (1984) 155 Cal.App.3d 769, 787 [striking armed enhancements as to one crime but not others].)
Here, the section 12022.5, subdivision (a) enhancements could not be imposed and stayed because use of a firearm is an element of section 246. The section 12022.5, subdivision (a), firearm enhancement on counts 9 and 10 must be stricken.
X. SENATE BILL 620
Bon's sentence includes firearm enhancements under sections 12022.5 and 12022.53, both of which were mandatory at the time of the sentencing hearing in this case. (See former §§ 12022.5, subd. (c) ["Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."]; 12022.53, subd. (h) [same], both statutes amended by Stats. 2017, ch. 682, § 2, p. 95.) Last year, however, the Legislature enacted Senate Bill No. 620, effective January 1, 2018. (Sen. Bill No. 620 (2017-2018 Reg. Sess.).) Under its provisions, sentencing courts now have the discretion under sections 12022.5, subdivision (c), and 12022.53, subdivision (h), to "strike or dismiss an enhancement otherwise required to be imposed by" those statutes if doing so would be "in the interest of justice pursuant to Section 1385." (§§ 12022.5, subd. (c), 12022.53, subd. (h).) This new discretion to strike firearm enhancements applies explicitly "to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
Bon argues his case must be remanded for resentencing so the trial court can exercise its discretion under sections 12022.5, subdivision (c), and 12022.53, subdivision (h), and determine whether to strike any of the firearm enhancements. We accept the Attorney General's concession that a remand for this purpose is appropriate. (See People v. Robbins (2018) 19 Cal.App.5th 660, 678-679 [under In re Estrada (1965) 63 Cal.2d 740, 747-748, and People v. Francis (1969) 71 Cal.2d 66, 76, amendments to sections 12022.5 and 12022.53 apply retroactively to cases not yet final].)
DISPOSITION
In our original opinion in this case filed September 12, 2017, we ordered that the November 14, 2014, sentencing minute order and abstract of judgment be corrected to refer to the enhancements as a violation of section 12022.5, subdivision (a), rather than its depiction as section 12022.5, subdivision (a)(1), and that the section 12022.5, subdivision (a) enhancement on counts 9 and 10 be stricken. We note these corrections were made and filed with the Madera Superior Court on October 18, 2017.
We now remand the case to the trial court for a resentencing hearing for the purpose of allowing it to exercise its discretion under section 12022.5, subdivision (c), and section 12022.53, subdivision (h). Once it has resentenced Bon, the court shall prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
/s/_________
FRANSON, Acting P.J. WE CONCUR: /s/_________
MEEHAN, J. /s/_________
SNAUFFER, J.