Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA099604 Dewey L. Falcone, Judge.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P.J.
Gualberto Dominguez was convicted of a number of crimes, including murder (Pen. Code, § 187) and attempted willful, deliberate and premeditated murder (§§ 664/187), stemming from a gang retaliation for a prior homicide. He appeals, claiming the trial court improperly admitted evidence of his “187” tattoo, insufficient evidence supports the murder, attempted murder and unlawful driving or taking of a vehicle convictions, the prosecutor committed misconduct and that the trial court erred in failing to award him actual time credits. We modify the judgment to award appellant actual time credits and in all other respects affirm.
All further references are to the Penal Code, unless otherwise indicated.
FACTS
On January 7, 2007, a member of the “Neighborhood” gang, Chris Rios, was murdered as a result of a dispute between his gang and “Varrio Norwalk, ” who were rivals for illegal drugs sales in the Norwalk area. The murder and attempted murder that is the subject of this appeal were undertaken in retaliation for the Rios murder. The facts of those crimes, as established at trial, follow.
On January 12, 2007, Maria T. was living on Dumont Avenue in Norwalk, in an area claimed by the “Varrio Norwalk” gang. At about 4:30 p.m., she was home with her sons, 29-year-old Manuel and 32-year-old Roberto. Her grandchildren were also at the home. Manuel was outside the house on the driveway playing with his son.
Roberto was never involved in gangs, but Manuel belonged to Varrio Norwalk when he was younger. Manuel had visible tattoos on his body, including two that say “Norwalk, ” one on his back and one on the back of his head. He normally keeps his head shaved bald.
Leonardo L. and his family lived next door to Maria. Antonio A. was standing in the driveway of Leonardo’s home with his cousin Leonardo, who was a couple of feet away from him. They were waiting for their uncle, Ted L., to come to the home. A gray Suburban approached, moving slowly. It stopped in front of Leonardo’s home, about seven to 10 feet from Antonio. Antonio saw appellant, who was in the passenger seat. Appellant asked him if he was from Norwalk. Antonio said, “no, ” and walked away. Appellant then asked Leonardo if he was from Norwalk and “Where are you from?” Leonardo told him he did not gang bang. Appellant asked again where he was from and, again, Leonardo told him he did not gang bang. Appellant asked “What about your neighbors?” and Leonardo said, “Nobody gang bangs here.” The Suburban then moved toward Maria’s home.
The Suburban then pulled up to Maria’s driveway. Both Leonardo and Antonio saw appellant take out a black.45-caliber weapon and shoot toward Maria’s home. They heard six to nine shots fired in rapid succession. Antonio heard the neighbors say that his uncle was hit. A couple of minutes later, he heard that someone in Maria’s house was shot as well.
Roberto was inside Maria’s home, walking into the kitchen toward the dining room. One of the shots hit him in his head. Maria heard a “psss, psss, psss, psss, ” and then saw Roberto fall on the door of the dining room. Maria ran toward her son; she wanted to pick him up, but his best friend was there and stopped her from doing so. Roberto was bloody and unconscious. He died as a result of the gunshot wound to his head.
Ted was on the driveway of Maria’s home, getting ready to walk to the Leonardo’s house on the day of the shooting. He was going to meet with his nephews, Leonardo and Antonio. He saw a Suburban come down the street. He noticed that the people in the Suburban were asking his nephews whether they gang banged. He heard his nephew say that none of them were from gangs. He saw appellant pointing the gun toward Maria’s house, heard shots, and then realized he had been shot. He threw himself in the air between the cars in the driveway. He was hit right below his right knee and on his left heel. The shot to his foot went through the heel and the very bottom of his foot. The other bullet went in his leg and upward toward his waist. That bullet shattered his shin bone and remains in his body. He cannot run, jump or stand for long periods of time. If he walks for long distances, his leg hurts.
Los Angeles Deputy Sheriff Nancy Gonzalez was dispatched to the shooting just before 5:00 p.m. After the victims were taken away by ambulance, eight 9-millimeter Luger shell casings were recovered from Maria’s driveway area. The casings came from a semiautomatic handgun. Bullet holes were found in a car parked in the driveway of Maria’s home, in the house, and in a trash can that was placed on the driveway. All of the bullets were found to have been travelling from the street toward the house.
The Chevrolet Suburban used in the shooting was reported stolen by Cynthia and Anthony C. of Lakewood. They owned the Suburban and a Nissan Quest, which they had parked in front of their house on January 10, 2007. Cynthia went outside that morning and noticed both of the cars were gone. The Quest was returned to her later in the day, after having been found illegally parked in an apartment carport in Norwalk. The Suburban was never returned; it was found set ablaze in a CVS parking lot shortly after the murder.
Karl L. lived about three miles from Maria’s home. On the day of the murder, he was standing in his front yard talking to his neighbor in Norwalk. He saw a red Thunderbird and a gray Suburban pull up across the street. Appellant was driving the Thunderbird. He got out of the car and got into the passenger’s side of the Suburban. The Suburban then drove away in the direction of CVS. About 10 minutes later, appellant returned on foot and then drove off with another man in the Thunderbird. Appellant made eye contact with Karl and gave him a “what are you looking at” glare.
Karl heard a car alarm go off and then saw a plume of smoke coming up over the trees in the area of CVS.
Salvador D. drove to CVS with his son on January 12, 2007, a little before 5:00 p.m. He noticed the Suburban was on fire and saw appellant and another man run from the burning vehicle.
A red plastic gasoline container and a black spout were retrieved from inside the Suburban. Los Angeles Sheriff Deputy and arson expert Gary Spencer opined that the fire was intentionally set.
On January 13, 2007, Los Angeles Sheriff’s Deputy Michael Ponce De Leon impounded appellant’s red Thunderbird. Appellant was watching nearby but did nothing. When the Thunderbird was searched, appellant’s wallet was found inside along with documents indicating he purchased the car.
Los Angeles Deputy Sheriff Gary Miller recovered a number of items from appellant’s bedroom indicating his affiliation with the Neighborhood gang, including photographs and a sketchbook with gang names written on it.
Appellant told his girlfriend, Charlotte P., to report the Thunderbird as stolen. When she asked him why, appellant said, “something happened.” When she tried to get more information from him, appellant kept saying, “Just do it, Charlotte, just do it.” He told her that he was going to be “locked up” for a long time.
Deputy De Leon testified as a gang expert. When a gang member asks another gang member, “Where are you from?” it is a way of confronting someone who they think is from a different gang. It is a phrase that is followed by a violent incident. Street gangs sometimes go to war against one another when they have been shown disrespect – by “somebody selling narcotics in their area, somebody shooting another gang member, or somebody killing another gang member form a rival area.” Gangs have a hierarchy and those gang members who are more active or violent have a higher status. The highest rank is that of a shot caller, who is in charge of the neighborhood. If a gang member cooperates with the police to give information about criminal activities, they are labeled a rat or a snitch, for which the penalty is death. Gang members frequently tattoo their bodies; they do so to communicate their gang affiliation, what they have done in the past, and their allegiance to the gang. It is very common to use stolen vehicles in driveby shootings.
Deputy De Leon testified that the Neighborhood and Varrio Norwalk gangs were rivals at the time of the murder. He explained that on the day before Rios was murdered, the Neighborhood and Varrio Norwalk gangs had a meeting to organize the sale of illegal drugs in the area. Rios said something disrespectful to members of the Varrio Norwalk gang and then left the meeting. The next day, January 7, 2007, Rios was shot and killed in broad daylight in a driveby shooting. Members of the Neighborhood gang witnessed the Rios murder and the perception was that Varrio Norwalk was responsible for it, which was enough to spark a gang war.
Deputy De Leon opined that Varrio Norwalk committed the shooting at Maria’s home in retaliation. He further opined that the shooting at Maria’s home was done to benefit the Neighborhood gang.
Deputy De Leon testified that appellant was a member of the “Tokers, ” a subset of the Neighborhood Gang and was known by the moniker “Coyote.” He knew that appellant and Rios were friends. Appellant had a number of tattoos on his body, including the zip code for Norwalk and “Tokers, ” which demonstrated his allegiance to the Neighborhood gang.
Appellant testified in his own defense and admitted he was a 20-year member of the Neighborhood gang, having joined when he was only 13 years old. He acknowledged that his moniker was Coyote. He also admitted he and Rios had been friends since eighth grade, but claimed they were no longer close. Appellant denied involvement in the murder and attempted murder. He said he would not kill the person who murdered Rios, only “beat the crap out of him.” He admitted to helping his friend set fire to the Suburban and to asking Charlotte to report his Thunderbird stolen. Appellant said he set fire to the Suburban because his friend “said he needed to get rid of it.” The prosecutor asked appellant for the name of his friend, and he refused to identify him. Appellant said, “[l]ike Mr. Ponce De Leon said, they don’t like rats and snitches. I’m sorry. I’m not going to tell you what his name was.” Appellant persisted in his refusal to identify his friend despite being warned by the judge that he would suffer “legal consequences which could involve incarceration.” Appellant admitted to having suffered five prior felony convictions, including four theft related offenses.
Appellant admitted he had “187” tattooed on his arm in 2006, and knew that it was the Penal Code section for murder. However, he testified the tattoo did not signify murder to him. Instead, he claimed, it is meant to indicate good luck based on his birth date on the Aztec calendar.
After trial by jury, appellant was convicted of first degree murder (count 1; Pen. Code, § 187, subd. (a)); attempted premeditated murder (count 2; Pen. Code, §§ 664/187, subd. (a)); arson (count 3, Pen. Code, § 451, subd. (d)); possession of a firearm by a felon (count 4; Pen. Code, § 12021, subd. (a)(1)); unlawful driving or taking of a vehicle (count 5; Veh. Code, § 10851, subd. (a)); street terrorism (count 6; Pen. Code, § 186.22, subd. (a)), and shooting at an inhabited dwelling (count 7; Pen. Code, § 246). Firearm enhancements were found true in counts 1, 2 and 7 (Pen. Code, § 12022.53, subds. (b)-(d)) and gang enhancements were found true in counts 1 through 5 and 7. (Pen. Code, § 186.22, subd. (b)(1).) Two allegations of prior prison terms (Pen. Code, § 667.5, subd. (b)) were found true by the court but were later dismissed at sentencing. Appellant was sentenced to an aggregate term of 135 years to life.
Appellant was found not guilty to two counts of assault with a semiautomatic firearm. (§ 245, subd. (b).) Firearm enhancements initially alleged pursuant to section 12022.55 were dismissed on the People’s motion.
DISCUSSION
1. Cross-examination of Appellant About his “187” Tattoo Was Properly Allowed
Appellant first contends the trial court erred by allowing the prosecutor to cross-examine him about the “187” tattoo on his arm. We disagree.
During direct examination of appellant, his counsel asked him about the tattoos on his hands. Appellant testified he had the tattoos put on his hands before the murder. When cross-examined, the prosecutor asked him about other tattoos on his body, and appellant acknowledged that he had tattoos on both of his arms, all over his stomach, on the front and back of his neck, on his right breast and on both of his legs. The prosecutor showed him a photograph of his right arm and asked him if he still had the “187” tattoo on it. Though appellant’s counsel objected to the question as being irrelevant, the objection was overruled. Appellant then acknowledged that he had such a tattoo and that he knew “187” was the Penal Code section for murder. Appellant testified that the “187” on his arm stood for good luck because “[m]y birthday on the Aztec calendar is nine death. That’s my birthday on the Aztec calendar, and I figured a code for death, 187. That’s why I have all these skulls tattooed on me, also.”
Appellant claims the trial court erred in admitting this evidence because its prejudicial effect was outweighed by any probative value under Evidence Code section 352. We first note that there was no objection interposed on this basis at the trial court level. Our Supreme Court has “consistently held” that a defendant who fails to make a “ ‘timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable.” (People v. Partida (2005) 37 Cal.4th 428, 434.) We adhere to that rule, and find that any error based on Evidence Code section 352 has been forfeited by the failure to object.
Even if we were to consider the issue on the merits, we would still find no error. We review a trial court’s Evidence Code section 352 rulings for an abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 213; People v. Lucas (1995) 12 Cal.4th 415, 449.) The trial court is vested with broad discretion under Evidence Code section 352 to determine whether the probative value of the evidence was unduly outweighed by its prejudicial effect. (People v. Williams, supra, at p. 213; People v. Lucas, supra, at p. 449.) The trial court’s exercise of discretion will be affirmed absent manifest abuse, that is, a finding the decision was palpably arbitrary, capricious, or patently absurd. (People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
Had the trial court been given the opportunity to rule upon the issue appellant now raises, we would find it did not abuse its discretion in allowing the cross-examination. In a gang related homicide, the California Supreme Court found no abuse of discretion under Evidence Code section 352 by the admission of evidence that the defendant placed a “187” tattoo on his forehead after the charged homicides; evidence of the “187” tattoo on the defendant was appropriately admitted as “an admission of defendant’s conduct and a manifestation of his consciousness of guilt.” (People v. Ochoa (2001) 26 Cal.4th 398, 437-438.) Similarly here, it was appropriate to allow in the evidence of the “187” tattoo.
The trial court initially indicated it was not going to allow evidence of the “187” tattoo in the prosecution’s direct examination of the gang expert to show appellant committed a murder in the past. It stood by that ruling, and no evidence of the “187” tattoo was initially presented. However, on direct examination of appellant, his counsel asked about the tattoos on his hands, and appellant testified that those tattoos were placed on him before the murder was committed. This evidence served to contradict any notion that he had the tattoos placed on him after the murder, which would show appellant was branding himself with the badge of having killed a rival gang member. Having once opened this issue for consideration by the jury, it was appropriate to allow cross-examination of appellant about the nature and significance of the other tattoos on his body. This evidence served to counter appellant’s lopsided evidentiary presentation, which left the jury with the impression that he would not commit a retaliation murder. In addition, appellant testified that he would not commit a homicide in retaliation for his friend’s murder, but would only beat up or break the bones of a person who killed Rios. The evidence also served to rebut that testimony. The tattoo, combined with the testimony of the gang expert demonstrated that appellant actually did have the state of mind to kill. There was no abuse of discretion.
This case is entirely distinguishable from the facts in United States v. Irvin (7th Cir. 1996) 87 F.3d 860, 864-866, upon which appellant relies. In Irvin, gang evidence, including a description of gang-related tattoos on a defendant, was found to have been improperly admitted in a case involving firearm and narcotics violations. There, the case had no relation to gangs. Here, the entire crime spree centered around gangs. In addition, appellant was charged with a street terrorism count and gang allegations. Although appellant’s affiliation with gangs was a required part of the proof for the People’s case-in-chief, the evidence of his “187” tattoo would not have been presented had not appellant raised the issue in the first instance. Appellant can find no solace in Irvin.
Assuming without deciding that appellant’s constitutional claims were preserved despite a lack of objection, they lack merit for the same reasons.
Finally, any error was clearly harmless, under any standard, given the overwhelming evidence of appellant’s guilt. (People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant was an admitted member of the Neighborhood gang since early adolescence, and was a childhood friend of Rios. He had a strong retaliatory motive for shooting an affiliate of the Varrio Norwalk gang after Rios – also a member of the Neighborhood gang – was killed by them. Three eyewitnesses saw appellant shoot the weapon that murdered Roberto and injured Ted. Appellant was seen immediately after the murder setting on fire the Suburban that was used in the driveby shootings. Though he later told an unbelievable story that he set fire to the Suburban for no other reason than to help a friend whom he refused to identify, he initially asked his girlfriend to report his own vehicle as stolen so he could disclaim being identified as driving it to the area where he was seen in the Suburban right after the murder. Appellant told his girlfriend that something had happened and he would be locked up for a long time. Evidence that appellant bore a “187” tattoo on his arm was not an important piece of evidence in his conviction in light of this overwhelming evidence. Any error in admitting it was harmless.
2. Sufficient Evidence Support the Convictions for Murder, Attempted Murder and Unlawful Driving or Taking of a Vehicle.
Appellant next claims the evidence is insufficient to support his convictions in count 1 for murder, in count 2 for attempted, willful, premeditated murder and in count 5 for the unlawful driving or taking of a vehicle. We find no merit to his contentions.
When a challenge is made to the sufficiency of the evidence, we apply the following standard of review: “[We] must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; Jackson v. Virginia (1979) 443 U.S. 307, 319.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime true beyond a reasonable doubt. (Jackson v. Virginia, supra, at pp. 318-319; People v. Bolin (1998) 18 Cal.4th 297, 331.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin, supra, at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
First Degree Murder: Count 1
Here, the jury was instructed on two theories of first degree murder – deliberate, premeditated murder and a driveby murder. Appellant does not take issue with the evidence underlying the driveby shooting, but contends the evidence of first degree murder based on premeditation and deliberation is insufficient to support the judgment. More specifically, he contends there was no evidence of specific intent to kill or premeditation. We disagree.
First degree murder requires a finding the killing was deliberate and premeditated. (§ 189.) The California Supreme Court has indicated that certain guidelines are used for determining whether the evidence is sufficient to sustain a finding of deliberation and premeditation, identifying three types of evidence bearing on premeditation and deliberation: “(1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing – what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support 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]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).” (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Subsequently, the court clarified that the Anderson factors are categories of evidence to be used only as a framework in the analysis of the sufficiency of the evidence of premeditation and deliberation. (See People v. Perez (1992) 2 Cal.4th 1117, 1125; People v. Solomon (2010) 49 Cal.4th 792, 812 (Solomon).) The court emphasized that these factors are not the exclusive means of showing premeditation. (Perez, supra, at p. 1125.)
It has been repeatedly held that premeditation and deliberation do not require any specific length of time. “ ‘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, but the express requirement for a concurrence of deliberation and premeditation excludes... those homicides... which are the result of mere unconsidered or rash impulse hastily executed.’ [Citations.]” (People v. Velasquez (1980) 26 Cal.3d 425, 435, judg. vacated sub nom.California v. Velasquez (1980) 448 U.S. 903, reiterated on remand sub. opn. People v. Velasquez (1980) 28 Cal.3d 461; Solomon, supra, 49 Cal.4th at p. 812.)
Appellant was a passenger in a stolen car, armed with a loaded gun, demonstrating planning of the murder. Appellant had an obvious motive – retaliation – for the recent murder of his longtime friend and fellow gang member, Chris Rios. The expert testimony established appellant and Rios were members of opposing gangs, and the murder of an opposing gang member can lead to violent retaliation. He then drove to an area known to be claimed by the Varrio Norwalk gang, the gang upon which he was seeking revenge. He sought out persons associated with the Varrio Norwalk by asking people he saw there where they were from and if they were from Norwalk. There could have been little reason for appellant’s inquiry other than to take the action which followed. As the gang expert testified, uttering such words meant violence would follow. Indeed, appellant then fired multiple shots at a home where a former member of the rival Varrio Norwalk gang member lived, who was outside the home and bore visible tattoos indicating an affiliation with Varrio Norwalk. He shot at persons who were unarmed and not a threat. These facts underlying the manner of the murder show he was acting under a preconceived design to murder a rival gang member.
Furthermore, there was no indication that any of the victims provoked the shooting. This is further circumstantial evidence of deliberation and premeditation. (People v. Miranda (1987) 44 Cal.3d 57, 87 [“The lack of provocation by the victim leads to an inference that an attack was the result of a deliberate plan rather than a ‘rash explosion of violence’ ”], disapproved on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) The only action by any of the victims was Antonio and Leonardo responding to questions posed by appellant that he was from “nowhere.”
In People v. Rand (1995) 37 Cal.App.4th 999, the court determined that a gang member’s killing of innocent bystanders whose clothing was the same color as a rival gang’s color was sufficient evidence of premeditation and deliberation. (Id. at pp. 1001-1002.) The court in Rand explained: “A studied hatred and enmity, including a preplanned, purposeful resolve to shoot anyone in a certain neighborhood wearing a certain color, evidences the most cold-blooded, most calculated, most culpable, kind of premeditation and deliberation.” (Id. at p. 1001; see also People v. Sanchez (2001) 26 Cal.4th 834, 849-850 [premeditation and deliberation shown where members of rival gangs who had shot at one another in the past, came armed with a loaded handgun and after driving slowly by the rival’s house, making gang signs and “flipping off” one another, shot at the rival gang member’s house].) There was sufficient evidence of a specific intent to kill, premeditation and deliberation.
In addition, appellant does not challenge the driveby shooting theory of murder. Even assuming the evidence were insufficient to support a conviction for first degree murder based on premeditation and deliberation, reversal of the murder conviction is not required where any valid ground for the verdict is apparent, unless there is an affirmative indication that the verdict rested on the inadequate ground. (People v. Guiton (1993) 4 Cal.4th 1116, 1129 [“If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground”].) In this case, there is no indication in the record the verdict was based on premeditation and deliberation. It cannot be subject to dispute that the evidence is sufficient to uphold the conviction based on a driveby murder. Even appellant does not take issue with the conviction on this basis. As a result, appellant’s challenge to the sufficiency of the evidence of first degree murder falters for this reason as well.
Attempted Murder: Count 2
Appellant next challenges the sufficiency of the evidence of attempted murder, as was found in count 2. He claims there was insufficient evidence to show he intended to kill Ted. Once again, his challenge lacks merit.
The prosecution proceeded on the theories of both attempted willful, deliberate, and premeditated murder and concurrent intent to kill, or the “kill zone” theory. The jury returned a general verdict of guilty, without specifying a basis for its finding. Analyzing the evidence here, there was sufficient evidence under both theories for the verdict.
Murder is the unlawful killing of a human being with malice aforethought (§ 187), and is first degree murder if committed with premeditation and deliberation (§ 189). In order to prove that appellant attempted willful, deliberate and premeditated murder, the prosecution is required to establish that (1) the defendant engaged in a direct but ineffectual act towards the killing of another human being, and (2) committed the act with the specific intent to kill another human being unlawfully. (People v. Lee (2003) 31 Cal.4th 613, 623; People v. Herrera (1999) 70 Cal.App.4th 1456, 1467; In re Gutierrez (1997) 51 Cal.App.4th 1704, 1711; see also § 188.) Rarely will the intent of a wrongdoer be proven by direct evidence. (People v. Smith (2005) 37 Cal.4th 733, 741; People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) Instead, it is usually proven by circumstantial evidence. Certain acts of aggression, by their very nature, suggest an intent to kill. (See People v. Smith, supra, at p. 743 [purposefully discharging a lethal firearm at victims in line of fire can support inference of intent to kill]; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [“The act of firing toward a victim at a close, but not point blank, range ‘in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill’ [Citation.]”]; People v. Lashley, supra, at p. 945.)
There was ample circumstantial evidence to support the jury’s implicit finding that appellant intended to kill Ted. He drove to a rival gang neighborhood to exact revenge for the murder of his friend, looked for members of his opposing gang by asking, “Where are you from?” and then fired numerous rounds from a nine-millimeter Lugar toward Ted from relatively close range. Ted was walking near Maria’s home, where Manuel was outside, marked with Varrio Norwalk tattoos. Appellant’s intent to kill was readily apparent. We also find there was sufficient evidence to support the finding that the attempted murder was deliberate and premeditated, for the reasons we outlined above.
We have noted that where one of two theories is supported by sufficient evidence, a claim of insufficiency of the evidence falters. (People v. Guiton, supra, 4 Cal.4th at p. 1129.) And, we have found the evidence sufficient to sustain the attempted murder conviction as willful, premeditated and deliberate. Nevertheless, we note also there was sufficient evidence that the attempted murder was within the “kill zone, ” the alternate theory upon which the prosecution relied. In People v. Bland (2002) 28 Cal.4th 313, 329, the California Supreme Court held that although transferred intent does not apply to attempted murder, a concurrent intent to kill can exist such that “a person who shoots at a group of people [may] be punished for the actions towards everyone in the group even if the person primarily targeted only one of them....” If a defendant targets a primary victim by intentionally creating a zone of harm, a jury may reasonably infer that the defendant had the requisite intent to kill the others in the zone concurrent with the intent to kill the primary victim. (People v. Adams (2008) 169 Cal.App.4th 1009, 1023 [concurrent intent theory “imposes attempted murder liability where the defendant intentionally created a kill zone in order to ensure the defendant’s primary objective of killing a specific person or persons despite the recognition, or with acceptance of the fact, that a natural and probable consequence of that act would be that anyone within that zone could or would die”].)
There is clearly sufficient evidence to support this theory of attempted murder as well. Appellant went to a rival gang member’s neighborhood in a stolen car with a loaded weapon, sought out members of the rival gang, found the home of a former member of the rival gang and began dispersing his gunfire in the vicinity of the former gang member who was in the front yard after asking “where are you from?” It is beyond dispute that Ted was in the “kill zone” created by appellant to ensure he killed a rival gang member.
Unlawful Driving or Taking of a Vehicle: Count 5
Appellant next contends the evidence was insufficient to support the conviction for unlawful driving or taking of a vehicle. Appellant claims the evidence “did not show [he] stole the car, drove the car or otherwise facilitated its theft. There was no evidence [he] even knew the car was stolen.” We disagree.
First, there is no requirement that he knew the car was stolen. “ ‘The elements necessary to establish a violation of section 10851 of the Vehicle Code are the defendant’s driving or taking of a vehicle belonging to another person, without the owner’s consent, and with specific intent to permanently or temporarily deprive the owner of title or possession. [Citations.]’ (People v. Windham (1987) 194 Cal.App.3d 1580, 1590.) Accordingly, knowledge that the vehicle was stolen is not an element of the offense. Such knowledge is merely one of various alternative factors evidencing intent to deprive the owner of title and possession. (People v. Hallman (1973) 35 Cal.App.3d 638, 641.)” (People v. Green (1995) 34 Cal.App.4th 165, 180.)
Second, there was sufficient evidence appellant was more than just an innocent passenger in the Suburban. The prosecution proceeded on the theory that appellant was an aider and abettor in the taking of the Suburban. The legal principles of aiding and abetting are well established: “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.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) “ ‘All persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission, ... are principals in any crime so committed.’ [Citation.] Accordingly, an aider and abettor ‘shares the guilt of the actual perpetrator.’ [Citation.]” (People v. Mendoza (1998) 18 Cal.4th 1114, 1122.)
“Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.” (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.) Circumstantial evidence such as presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship with the perpetrator, conduct before and after the crime, and flight from the scene are factors which may be considered in determining that a defendant is guilty of aiding and abetting. (See People v. Jones (1980) 108 Cal.App.3d 9, 15; see also People v. Salgado (2001) 88 Cal.App.4th 5, 15.)
Here, no one testified to directly observing the person or persons steal the two vehicles from Cynthia and Anthony’s home. The evidence at trial showed only that two cars were found missing from Cynthia and Anthony’s front driveway on the morning of January 10, 2007, when Cynthia went outside at 7:00 a.m. However, when the Suburban was next seen, appellant was in the passenger seat as he executed his plan to extract revenge for his friend’s death. After the murderous gang retaliation scheme was complete, appellant was thereafter seen carrying out what can fairly be considered a plan to destroy any evidence in the Suburban: dropping off his own car, bringing gasoline with him, setting fire to the Suburban and then running from the SUV once it was set ablaze. Indeed, he admitted having intentionally set the Suburban on fire. Though he claimed he did so at the request of a friend whom he refused to identify, the jury was free to disbelieve his version of the events.
As noted by Deputy De Leon, stolen vehicles are quite often used in driveby shootings. “ ‘Once the unlawful taking of the vehicle has been established, possession of the recently taken vehicle by the defendant with slight corroboration through statements or conduct tending to show guilt is sufficient to sustain a conviction of Vehicle Code section 10851. [Citations.]’ [Citation.]” (People v. Windham, supra, 194 Cal.App.3d at p. 1590.) There was substantial corroborative evidence of appellant’s guilty conduct, providing sufficient evidence for a jury to infer that it was he who either personally stole, or aided and abetted in stealing, the Suburban.
This case is unlike People v. Clark (1967) 251 Cal.App.2d 868, 873, upon which appellant relies. In Clark, the only evidence of the defendant’s involvement in the unlawful taking of a vehicle was that he was a passenger in the car. Here, there was more than enough circumstantial evidence of appellant’s involvement in the theft given his participation in an overall plan, which required taking the Suburban to carry it out. By its verdict, it is clear that the jury rejected appellant’s story that he only assisted an unidentified friend in disposing of the Suburban.
3. The Prosecutor Did Not Commit Misconduct
Appellant next contends prosecutorial misconduct during argument warrants reversal of the judgment. We find otherwise.
As we previously noted, appellant admitted he set fire to the Suburban because his friend “said he needed to get rid of it.” When the prosecutor asked appellant for the name of his friend, appellant refused to identify him. Appellant said, “[l]ike Mr. Ponce De Leon said, they don’t like rats and snitches. I’m sorry. I’m not going to tell you what his name was.” Appellant persisted in his refusal to identify his friend despite being warned by the judge that he would suffer “legal consequences which could involve incarceration.”
During argument, the prosecutor made reference to appellant’s refusal to identify his cohort. More specifically, the prosecutor stated:
“Judge Falcone gave the defendant a direct order to answer a question that I asked of him about who the other person was. A direct order from the judge. And what did he do? He openly defied the judge. He openly disrespected the judge. He ignored the judge. Why do I bring this up? Because it shows you what I talked about. Gangsters recognize only one form of justice, their own perverted form of street justice.”
Appellant now asserts those statements constitute prejudicial misconduct. He is mistaken.
“ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).)
The prosecutor is given wide latitude to argue broadly the law and facts of a case. (People v. Lucas (1995) 12 Cal.4th 415, 473.) The prosecutor may comment on the actual state of the evidence (People v. Medina (1995) 11 Cal.4th 694, 755) and may “urge whatever conclusions he deems proper.” (People v. Lewis (1990) 50 Cal.3d 262, 283; accord, People v. Thomas (1992) 2 Cal.4th 489, 527-528.)
Here, when the prosecutor’s comments are viewed in context, it reveals they were an entirely appropriate part of the argument that there was sufficient evidence for the jury to convict appellant of the gang enhancements and the gang charge alleged against him. The prosecutor acknowledged that he “must prove to you that this crime was gang motivated.” He then queried: “What motivation would a gang member have to kill a rival? How would that benefit him? How would that benefit his gang? How about being labeled a hero in the history of the Neighborhood gang? That’s strong motive right there, and that’s what I’m talking about.” The prosecutor explained that “in the gang world values as normal society knows it are all upside down, what is black is white. What’s white is black....” He next turned to the defendant specifically: “Let’s take the defendant. Now, this is a guy who has been in a gang for almost 20 years. Twenty years. That’s a long time. That’s two decades. That’s five presidential terms.” Immediately after that, the prosecutor made the reference to appellant’s failure to identify the person who allegedly asked him to burn the Suburban.
In making reference to appellant’s failure to obey a direct order of the judge, the prosecutor was making the point that appellant was a member of the Neighborhood gang, involved in an aberrant gang lifestyle that dictated and motivated his crime spree in the present case. Proof of a gang enhancement requires a finding that a defendant committed an enumerated felony “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 order to prove that the crimes had an underlying gang motive, the prosecutor argued that appellant was a long-term member of the Neighborhood gang who adhered to gang counter culture as was demonstrated by a number of facts, including that he was willing to openly flout a judge’s direct order. There was no prosecutorial misconduct in arguing that the facts fit the charges.
These facts distinguish the present case from the cases upon which appellant relies – People v. Teixeira (1955) 136 Cal.App.2d 136, 148, People v. Ellis (1966) 65 Cal.2d 529, 540-541, and People v. Herring (1993) 20 Cal.App.4th 1066, 1075 – where the prosecutor’s comments were found to have lacked a basis in the evidence, adversely affected the jury’s partiality, or denigrated the presumption of innocence.
Finally, even assuming there was error it was clearly harmless under any standard. If the defendant asserted a timely objection, or if we find that an admonition would not have been effective, we look to see whether the misconduct was prejudicial. (People v. Herring, supra, 20 Cal.App.4th at p. 1074.) Under state law, the question is whether there is a clear showing that there was a miscarriage of justice. (Hill, supra, 17 Cal.4th at p. 844.) In contrast, if prosecutorial misconduct deprived a defendant of due process under the federal Constitution, then the judgment must be reversed unless the error was harmless beyond a reasonable doubt. (People v. Bell (1989) 49 Cal.3d 502, 533.) The prosecutor’s comment was an isolated one and did not constitute a pattern of egregious conduct; there was an overwhelming amount of evidence demonstrating appellant’s guilt and the jury was instructed that comments of counsel are not evidence. There simply was no prejudice.
4. Appellant Is Entitled to Presentence Custody Credits for the Actual Days He Spent in Custody Before Sentencing.
Appellant contends, and respondent agrees, that he is entitled to presentence custody credit for the actual time he spent in custody before his sentencing. While section 2933.2 prohibits an award of good time or work time credits for those convicted of murder, appellant is still entitled to presentence custody credit for every actual day he spent in custody pursuant to section 2900.5, subdivision (a). (People v. Taylor (2004) 119 Cal.App.4th 628, 645-647.) A sentence that does not grant legally earned custody credit is unauthorized and may be corrected at any time. (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8.)
The parties agree that appellant was arrested on January 19, 2007 and that he was continuously confined until he was sentenced on June 29, 2009. That time period encompasses 893 days, including the day of arrest and the day of sentencing. The abstract of judgment should be amended to reflect those days of actual custody.
Respondent contends it is 893 days. We agree; we count 893: 366 days for the period of January 19, 2007, to January 19, 2008; 366 days for the period of January 20, 2008, to January 19, 2009 (leap year); 12 remaining days in January 2009, 28 days in February 2009; 31 days in March 2009; 30 days in April 2009; 31 days in May 2009 and 29 days in June 2009.
DISPOSITION
The judgment is modified to reflect a total of 893 days of actual credit. In all other respects, the judgment is affirmed.
We concur: FLIER, J. GRIMES, J.