Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA053237. Michael A. Latin, Judge.
John A. Colucci, 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, Michael R. Johnsen and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted Erick Fuentes (appellant) of one count of first degree murder (count 1; Pen. Code, § 187, subd. (a)) and three counts of willful, deliberate, and premeditated attempted murder (counts 2-4; §§ 664; 187, subd. (a)). As to all counts, the jury found true allegations that appellant personally and intentionally discharged a firearm that caused great bodily injury and death (§ 12022.53, subds. (b)–(d)), and that appellant committed the offense for the benefit of, at the direction of, and in association with, a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court orally pronounced appellant’s sentence as follows: on count 1, 25 years to life for the first degree murder plus 10 years for the gang enhancement and 25 years to life for the firearm enhancement; on count 2, 15 years to life for the premeditated attempted murder plus 20 years to life for the firearm enhancement; on count 3, 15 years to life for the premeditated attempted murder plus 25 years to life for the firearm enhancement; on count 4, 15 years to life for the premeditated attempted murder plus 25 years to life for firearm enhancement.
Appellant contends the trial court committed reversible error by: (1) denying appellant’s motion for a mistrial, or in the alternative, a new jury panel, after comments by prospective jurors during voir dire tainted the final jury panel; (2) chilling the expression of juror bias during voir dire; (3) trivializing the reasonable doubt standard and shifting the burden of proof on appellant during voir dire; (4) instructing the jury with CALCRIM No. 600 on the attempted murder counts; and (5) not reading an inadvertently omitted instruction on voluntary intoxication. Appellant also contends that he received ineffective assistance of counsel, that the trial court erroneously imposed a 10-year gang enhancement on count 1, that the trial court inadvertently imposed a 20-year, and not a 25-year, firearm enhancement on count 2, and that the abstract of judgment contains clerical errors.
The People agree that the 10-year gang enhancement was erroneously imposed on count 1. Additionally, the People contend that the trial court should have imposed $80, and not $20, in court security fees on appellant.
We strike the 10-year gang enhancement imposed by the trial court on count 1, modify the judgment to reflect a firearm enhancement of 25 years to life, and not 20 years to life, on count 2, correct clerical errors in the abstract of judgment, and impose $80 in court security fees. We affirm the judgment in all other respects.
BACKGROUND
I. The Shooting
On July 29, 2006, appellant and Rene Sanchez (Sanchez), both members of the Brown Pride Sureños gang, were at a house party in Canoga Park. Approximately 50 partygoers congregated inside the house and outside in a backyard adjacent to the house. When Sanchez and appellant were standing outside, a man approached them and asked: “Where are you guys from?” Appellant replied that they were members of the Brown Pride Sureños gang and the man returned inside the house. Appellant and Sanchez left the party and met up with two acquaintances, Armando Yera (Yera) and Dennis Nefedov (Nefedov), and two women. All six individuals drove back to the party in Yera’s car. Yera was driving and appellant was in the front seat giving him directions to the party. When they arrived, appellant exited the car and approached the backyard. There were several accounts of what occurred next.
Earlier that day, appellant and Sanchez had been drinking beer and smoking rock cocaine.
The party was located in an area controlled by the Canoga Park Alabama gang, a rival of the Brown Pride Sureños gang.
Sanchez testified, under a grant of immunity, that appellant shouted “Whose party is this?” and then began shooting “randomly” at the people standing outside. Sanchez heard five to 10 shots. Appellant returned to the car, Nefedov yelled “Brown Pride Sureños,” and the group drove off.
Nefedov testified, under a grant of immunity, that appellant approached the backyard. A man, later identified as Renato Martinez (Martinez), was standing by a gate that enclosed the backyard. Martinez stopped appellant from proceeding further and they began arguing. Martinez insulted appellant’s mother. From a distance of three feet, appellant pulled out a gun and began shooting Martinez. Nefedov heard one loud pop and saw three to four white flashes from the gun. Appellant returned to the car and someone at the party yelled out “Canoga Park Alabama.” Both appellant and Nefedov yelled “Brown Pride” In response and the group drove off. According to Nefedov, as they were driving away from the scene, appellant said to Sanchez: “Oh, shit, I think I got him, I think I dropped him.”
Jose Pena (Pena) testified that he was standing next to Martinez when he saw a car approaching. The car stopped and a man from the backseat exited the car and asked: “Whose party is this?” Pena then saw the man reaching for something in his waistband. Pena immediately dove to the ground. Pena heard two to three gunshots and later saw Martinez lying on the ground. Pena identified a photograph of appellant as someone who looked like the shooter. At trial, however, Pena could not positively identify appellant as the shooter.
Officers recovered five spent.40-caliber casings from the shooting scene, all of which were from the same manufacturer.
II. The Victims
Los Angeles Police Officer (LAPD) Joshua Lukaszewski and his partner responded to the scene shortly after the shooting and saw “numerous” people fleeing in all directions. Officer Lukaszewski testified that he saw a man, later identified as Martinez, on the ground covered with blood. Martinez was unresponsive and appeared lifeless. A deputy medical examiner testified that Martinez had sustained five gunshot wounds from a distance of two to two and a half feet, and had died from those wounds.
Officer Lukaszewski further testified that Jesus Cabrera, a member of the Canoga Park Alabama gang who was also at the party, had received a gunshot wound and went to the hospital on his own.
Daniel Hernandez (Hernandez) was at that party standing outside with six of his friends when he saw flashes and heard four to five gunshots. Hernandez was shot in his lower calf.
Manuel Galvan (Galvan) was standing near Hernandez when he heard gunshots. Galvan was shot in his left upper thigh.
III. Recovery of the Weapon and Appellant’s Arrest
The next day, Yera and Sanchez were driving around in Yera’s car when police officers stopped them. The officers searched the car and found a Glock.40-caliber semiautomatic firearm hidden in a compartment behind the front air vents. The gun was loaded with a magazine containing nine live rounds. Officers also found a pair of thin white cotton gloves in the car. Yera told the officers that the gun belonged to him and that he had purchased it for $300. By stipulation, an LAPD criminalist testified that the gun found in Yera’s car was the firearm that fired the five casings found at the scene of the shooting.
On August 16, 2006, LAPD Officer Christian Mayes arrested appellant and transported him to the West Valley police station. While appellant was in the station’s holding cell, appellant struck his head against a cell wall and a fiberglass window multiple times. When officers learned that appellant was doing this, they entered his cell, restrained him, and transported him to the hospital per department policy. While at the hospital, appellant revealed to Officer Mayes that he attempted to injure himself in order to get transferred to a hospital with the goal of escaping from police custody.
On September 24, 2006, appellant received a visit from his older brother, Jose Hernandez, while appellant was in custody. A recording of the conversation between the brothers was played to the jury. In the recording, appellant told his brother that Nefedov “need[ed] to not show up” and that “nothing [would] happen to [Nefedov] if he [didn’t] show up.” Appellant went on to instruct his brother to tell Nefedov “just move out of town.” Appellant’s brother agreed and informed appellant that he knew Nefedov’s address and where to find him. Appellant then told his brother that he intended to tell his attorney that Yera had kicked appellant out of Yera’s car before the shooting occurred because of an argument. Appellant and his brother agreed that such an explanation “add[ed] up to... what the other... vato’s [were] saying....” Appellant’s brother called the prosecution’s witnesses “liars” and appellant responded that the witnesses disliked him because he was “with some girl that they liked.”
Appellant’s older brother is also a member of the Brown Pride Sureños gang.
Prior to this visit, investigating Officer Jason Le Duff had requested that the Los Angeles County Sheriff’s Department record conversations between appellant and his visitors.
IV. Gang Evidence
LAPD Officer Mark Kilgrow, the prosecution’s gang expert, testified that at the time of the shooting, appellant was a member of the Brown Pride Sureños gang and that a major rival was the Canoga Park Alabama gang. In Officer Kilgrow’s opinion, appellant’s act of shooting at partygoers in rival territory benefitted the Brown Pride Sureños gang because it boosted the gang’s status in the gang community and sent a message to other gangs that it was not afraid of inflicting violence against its rivals.
V. Defense Evidence
LAPD Officer Dennis Cunningham testified that he spoke with George Santos (Santos), who had attended the party with Pena, shortly after the shooting. According to Officer Cunningham, Santos told him that he saw the following: a car had pulled up to the party, the driver exited the car, asked who was throwing the party, and then began shooting at the crowd.
Santos, however, testified that he was inside the house when the shooting occurred and did not see either the shooter or the car that the shooter arrived in. According to Santos, the information that he gave to Officer Cunningham was based on statements that Pena had made to Santos after the shooting occurred.
DISCUSSION
I. Denial of Motion for Mistrial/New Jury Panel
A. Appellant’s Argument
Appellant argues that the trial court committed reversible error when it denied his motion for a mistrial, or in the alternative, a new jury panel. According to appellant, inflammatory comments by some prospective jurors irreparably tainted the final jury panel.
B. Summary of Voir Dire Proceedings
The voir dire in this case was lengthy. We summarize only those portions of the proceedings necessary to address the issues raised by appellant on appeal.
Prospective Juror No. 1 stated that she could not be impartial because she was “somewhat prejudiced” against illegal immigrants and “suspicious” of them. The trial court informed her that the underlying case had nothing to do with illegal immigrants. The juror replied that knowing this made her feel “possibly” better. Both parties subsequently stipulated to the excusal of this prospective juror.
Prospective Juror No. 2, stated that he believed appellant was “probably guilty as charged” because police officers would not “just arrest anybody” for a “hideous crime like murder[.]” The trial court asked the juror whether he could wait to hear the evidence before making a guilt determination and he replied: “It’s just I am somewhat biased just because of the nature of the crime.” Later during voir dire proceedings, Prospective Juror No. 2 stated that two friends, who were both attorneys, told him that “80 percent of the cases are decided by the jurors in the first 45 seconds of the trial” and that in “almost all the criminal cases[,] the defendant is guilty.” He went on to state his belief that there was “nothing lower than being a gang member,” that gang members were like “internal terrorist[s] [because] they terrorize their neighborhood[s],” and that gang members “by default” are guilty. Both parties subsequently stipulated to the excusal of this prospective juror as well.
Prospective Juror No. 4 stated that she could not be impartial because drive-by gang shootings were responsible for one friend’s paralysis and another friend’s death. Also, as a Seventh Day Adventist, she explained that her religion prohibited her from passing judgment on another person. Both parties stipulated to her excusal.
Prospective Juror No. 4-b, i.e., the prospective juror that replaced the original Prospective Juror No. 4, stated that he was “totally against gang[s],” believed that the LAPD was “one of the best [police departments] in the world,” and had negative opinions about lawyers who represent “criminal gang members[.]” Additionally, he questioned the trial court about why it took “so many breaks.” Both parties subsequently stipulated to the excusal of this prospective juror.
Prospective Juror No. 14 stated that he was “very opinionated” and intended to make “an opinion [about appellant] really quick” and was “going to stick to whatever” opinion he made. The prospective juror went on to state that he believed appellant was guilty because of “his eyes.” The trial court stated that it “appreciate[d]” the prospective juror’s comments and reminded the prospective jury panel that “it’s incredibly important that we go through... this with everybody, so we make sure that somebody who has those opinions and is incapable of deciding the case based on the evidence, doesn’t end up on the jury.” Outside the presence of the prospective juror panel, the trial court described this prospective juror’s behavior as “abysmal,” “horrendous,” and “disrespectful.” Both parties subsequently stipulated to the excusal of this prospective juror.
Prospective Juror No. 17 stated he would be unable to judge the evidence fairly given his personal background. He explained that 26 years ago, he started a support group to help parents cope with the impact of gang violence on their families. He was “very biased” against gang members having “seen the results of what the gang members have done to the families that I have been dealing with in the last 26 years.” The prospective juror went on to say: “If I had any way of breaking up every gang and perhaps putting every gang member in prison or in a desert retreat somewhere where they can spend the rest of their lives, I would do it. I would do it. I can’t believe that gangs have been going on for as long as they have gone on. I don’t see it getting any better. I see these problems getting worse.” After this statement, one unidentified prospective juror said: “Here. Here.” The trial court admonished the prospective jury panel, stating: “Please, this isn’t the gospel church.”
Prospective Juror No. 17 went on to state: “I’ve seen the repercussions, I’ve dealt with kids who have been molested, dealt with the rapes. I’ve dealt with the murders, I’ve dealt with all these things in the last 26 years. I’m not a good—I would love to serve on the jury, I really was coming here hoping I would get jury duty, and I thought that it would be kind of interesting, but not in a gang one.” The trial court explained to the prospective juror that his task would be to decide whether appellant was guilty of the charged crimes, not to decide whether he approved of appellant’s lifestyle. The prospective juror responded: “Belonging to a gang, to me, is a crime. And anything related to the attendance of a member of a gang, to me, is [] evidence of guilt. It’s just guilty.... Even if [appellant] is completely innocent of the murder, he is still involved in the gang, and the gang, to me, that one goes with the other, just goes with the other.” After that statement, an unidentified juror began clapping. The trial court called for the clapping to stop. The parties stipulated to Prospective Juror No. 17’s excusal. Additionally, the trial court excused the prospective juror who had clapped.
After excusing Prospective Jurors 1, 2, 4, 4-b, 14, and 17, and replacing them with new prospective jurors, the trial court addressed the remaining prospective juror panel with the following comments:
“I want to talk a little bit with all of you about Friday. I think you know from the comments I made at the end of the day how disappointing and disheartening the session was for me.
“I’ve seen... hundreds of juries, [and] I have never seen a group as bad as the group that just left the courtroom. I’ve never seen it. Ever. Usually people are pretty respectful, and pretty honest. I was a little astounded.
“The attorneys, I think, are concerned. And I am, too, that, that—somehow the attitude expressed and the views expressed might have some spill-over effect on everybody else. What I want to make sure is, that nobody is—has been affected by what they saw on Friday to an extent that there’s this gang mentality in the room, everybody just wants to get the defendant.
“Does anybody feel that because of the views expressed by other people and the overall tenor of the discussion on Friday, that this is not a place they think they can be fair in, or that they feel their objectivity has been compromised in any way? And you can let me know if it’s true. I just want honest responses.”
None of the remaining prospective jurors indicated that the statements made by the excused jurors had influenced their ability to judge the evidence fairly and impartially. The trial court followed up with: “I do want you to be honest. Trust me. I’m not going to look unfavorably upon you if you tell me your honest opinion, but I want those opinions to be genuine. And you saw it, there were some people who had genuine opinions.” Again, none of the prospective jurors indicated an unwillingness or inability to judge the evidence fairly.
After voir dire continued, Prospective Juror No. 3 stated that he could not judge the evidence fairly because he believed that all gang members were “guilty already.” The parties stipulated to his excusal. Two other prospective jurors, Nos. 14-b (i.e., newly seated after the excusal of No. 14) and 16, both stated that they had family members who had been attacked by gang members. When asked by the trial court whether she could set aside her emotional feelings about the personal incident, and “let the facts dictate the result” in appellant’s case, Prospective Juror No. 14-b stated that she could set aside her feelings and “be fair and impartial in deciding the evidence.” Likewise, when asked by the trial court whether she could put aside whatever feelings she had about her prior experience with gang members and judge the case fairly, Prospective Juror No. 16 stated that she could do so.
C. Relevant Authority
A defendant has a constitutional right to a fair and impartial jury. (People v. Martinez (1991) 228 Cal.App.3d 1456, 1459 (Martinez).) But in general, “discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant.” (People v. Medina (1990) 51 Cal.3d 870, 888 (Medina).)
The denial of a motion for a mistrial is reviewed by an abuse of discretion and should be granted “only when ‘“a party’s chances of receiving a fair trial have been irreparably damaged.”’” (People v. Ayala (2000) 23 Cal.4th 225, 282.) Likewise, we review the denial of a motion to dismiss the venire for an abuse of discretion. (Martinez, supra, 228 Cal.App.3d at pp. 1466–1467.) “[T]he trial judge is in a better position to gauge the level of bias and prejudice created by juror comments.” (Id. at p. 1466.) Therefore, the trial court’s conclusion on jury “bias and prejudice is entitled to great deference and is reversed on appeal only upon a clear showing of abuse of discretion.” (Ibid; Medina, supra, 51 Cal.3d at p. 889 [“We believe the trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required”].)
D. Analysis
Here, when appellant made his first motion for mistrial, the trial court found that even though it was a “bad panel[,]” it was not an irreparably “tainted panel.” The trial court went on to explain that there were “plenty” of prospective jurors who were “not affected by those [biased] comments and [who] know by example now that those [biased] views and those attitudes are not the views and attitudes that somebody that can be a fair and impartial juror,” should have. When appellant made his second motion for mistrial, and in the alternative, a motion to discharge the entire venire, the trial court found that granting either motion was unwarranted because after the excusal of the biased jurors, “there [were] still some good people left,” and that it would simply be more time consuming to voir dire other prospective jurors.
We conclude that the trial court did not abuse its discretion. As noted in the summary above, all of the jurors who made biased remarks against appellant were ultimately excused from the final jury panel. Moreover, once they were excused, the trial court conducted additional voir dire and specifically asked the remaining prospective jurors whether any comments by the excused jurors affected their ability to view the evidence impartially and fairly. None of the prospective jurors indicated that comments by the excused jurors had affected them. Additionally, the trial court asked the prospective jurors numerous times whether they could assess the evidence against appellant fairly despite their suspicions about his membership in a gang. All the prospective jurors that remained on the panel stated that they could do so, even if they were not necessarily in favor of gangs.
Medina, supra, 51 Cal.3d 870, is instructive. In Medina, the defendant was charged with three counts of murder. During voir dire, five prospective jurors made biased and inflammatory remarks against the defendant, including “‘even his own lawyers think he’s guilty,’” “‘they ought to have [sic] him and get it over with[,]’” and “‘bring the guilty S.O.B. in, we’ll give him a trial, and then hang him.’” (Id. at pp. 888–889.) The jurors who made these comments were excused from the final jury panel, and the remaining prospective jurors affirmed their abilities to be fair and impartial. (Id. at p. 889.) The Supreme Court affirmed the trial court’s denial of the defendant’s request for a new jury panel, explaining: “We believe the trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required. Defendant cites no case, and we have found none, indicating that such a drastic remedy is appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks.” (Ibid.) The Supreme Court went onto state that “discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice,” and the case “[fell] short of that mark.” (Ibid.)
Like Medina, the offending prospective jurors in the present case were ultimately excused and the remaining prospective jurors affirmed their abilities to be fair and impartial. If the biased and inflammatory statements made in Medina did not warrant the drastic remedy of discharging the entire venire, then the statements made in this case, which in our view were not as biased or inflammatory, certainly would not justify such a remedy.
Appellant likens his case to Mach v. Stewart (9th Cir. 1998) 137 F.3d 630 (Mach), but that case is distinguishable. In Mach, the defendant was charged with sexual conduct with a minor under 14 years of age. During voir dire, the trial court allowed a prospective juror, a social worker with years of experience working with victims of sexual abuse, to state four times that she had never encountered a case in which a child had lied about being sexually assaulted. (Id. at p. 632.) The prospective juror went on to state that she had worked extensively with psychiatrists and psychologists, and that she also had experience in child psychology. (Ibid.) The Ninth Circuit Court of Appeals held that the prospective juror’s comments had irreparably tainted the venire because they were “expert-like” given “the nature of [the juror’s] statements, the certainty with which they were delivered, the years of experience that led to them, and the number of times that they were repeated.” (Id. at p. 633.)
In contrast, no such “expert-like” statements were made in this case. Prospective Jurors Nos. 1, 2, 3, 4, 4-b, and 14 certainly articulated a bias against gang members, but in no way did they profess to be experts. They were simply lay persons who were apt to assume guilt based on gang membership. As for Prospective Juror No. 17, while he may have been an expert on the impact of gang violence on family members through his support group, he was certainly no expert on the psychological propensity of gang members to commit murder, or the veracity of the witnesses who testified against appellant.
Paschal v. United States (5th Cir. 1962) 306 F.2d 398, another case cited by appellant, is likewise inapposite. In that case, the defendant was charged with passing counterfeit bills. During voir dire, a prospective juror stated that he was the director of a bank and had in the past personally seen “‘Some Paschal money.... This defendant’s money[.]’” The Fifth Circuit Court of Appeals held that even thought the director was excused, the final jury was irreparably tainted, explaining: “When one of their own number comes forward with the conclusion of guilt based upon some special information or knowledge he has gained, in this case because the juror was a stockholder and director of a bank, the influence on the minds of the other jurors is inevitable.” (Id. at p. 400.) Here, none of the offending jurors professed to have any personal knowledge about whether appellant was actually guilty of the charged crimes.
In sum, we conclude the trial court did not abuse its discretion in denying appellant’s motion for a mistrial, or in the alternative, to discharge the entire venire.
II. Trial Court’s Remarks Toward Offending Jurors
A. Appellant’s Argument
Appellant contends that the trial court’s “aggressive questioning of jurors during voir dire and the contempt cites chilled the free expression of legitimate bias by the prospective jury panel thereby depriving appellant of his right to due process of law, to a fair trial and to an unbiased jury.”
B. Summary of Proceedings Below
The trial court held contempt proceedings for Prospective Jurors No. 1, the person who said that she was prejudiced against all illegal immigrants, No. 2, who said that 80 percent of cases are decided by the jurors in the first 45 seconds of the trial and that in almost all the criminal cases, the defendant is guilty, No. 4-b, who questioned the trial court’s decisions on when to take breaks, and No. 14, who stated that he believed appellant was guilty because of his eyes. The contempt proceedings were held outside the presence of the other prospective jurors. Ultimately, the trial court did not hold any of the offending jurors in contempt.
C. Relevant Authority
“‘“The Constitution... does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.”’” (People v. Tafoya (2007) 42 Cal.4th 147, 168.) “‘[T]he trial court is given wide latitude to determine how best to conduct the voir dire....’” (Ibid.) Furthermore, “the exercise of discretion by trial judges with respect to the particular questions to ask and areas to cover in voir dire is entitled to considerable deference by appellate courts.” (People v. Taylor (1992) 5 Cal.App.4th 1299, 1313.)
D. Analysis
Based on our review of the record, we conclude that the trial court’s questioning of the prospective jurors during voir dire did not “chill” their expression of bias. The trial court stated numerous times that its task during voir dire was to uncover whatever bias each prospective juror had against appellant. For instance, at the outset, the trial court explained to the jury: “My concern is that whatever the verdict is, that it is a verdict that reflects the facts in the case and the law that I instruct you on in the end, and it’s not affected by any hidden agenda that you have or bad experience that you had in your life. I want to make sure that everything is open and on the table.” It went on to state in its preliminary remarks: “And so what jury selection is about, to me, is to find out where you stand, to find out if you really can be fair, and if you have anything in your background, your associations, your experiences, as you start hearing me question the other jurors, that you know you should reveal, do not hold back. Just let me know what it is.... The worst thing that can happen in this case is for somebody to go back and decide this case that knows from the very beginning they shouldn’t be on the jury.”
As it questioned each individual juror, the trial court maintained the same tenor and urged the prospective jurors to articulate any bias that they might have. For instance, during its questioning of Prospective Juror No. 10, who had said she would try her best not to let her bias against gangs interfere with her decision making process, the trial court stated: “I want you to give me the best answer you can, so instead of telling me ‘I’ll do my best,’ tell me what you think. Tell me what you really think. Do you think you can do it? I’m not holding you to it. I’m not going to be upset if it turns out that you are wrong or that you reconsidered and... that you know what, I reflected and I don’t think I can do it. I just need to know what your assessment is, because I don’t know you, and the attorneys don’t know you. The only one here that knows you is you.”
The trial court made similar comments to other jurors encouraging them to articulate their biases. Appellant cites to instances in the record that demonstrate annoyance by the trial court with those four prospective jurors who were apparently fabricating or exaggerating their biases for the sake of being excused or blatantly showing disrespect to the trial court and the gravity of the proceedings. The trial court’s statements to these prospective jurors, however, did not chill the other prospective juror’s willingness to express bias as evidenced by the fact that several prospective jurors, such as Prospective Juror No. 9, continued to express their bias against gang members after the offending jurors were called out.
III. Trial Court’s Comments Regarding Burden of Proof and Reasonable Doubt
A. Appellant’s Argument
Appellant contends: (1) comments by the trial court during an exchange with Prospective Juror No. 2 shifted the burden of proof on appellant to prove his innocence; and (2) comments by the trial court during exchanges with Prospective Jurors Nos. 16 and 18 trivialized the reasonable doubt standard.
B. Summary of Proceedings Below
At the start of voir dire, the trial court instructed the jury: “In any criminal trial, and this one is no exception, when the defendant enters a plea of not guilty, he is presumed to be innocent until the contrary is proved. And in case of a reasonable doubt as to whether his guilt is satisfactorily proved, he is entitled to a verdict of not guilty. That places the burden on the prosecution to prove that he is guilty, and they have to prove it to you beyond a reasonable doubt. Reasonable doubt is not a mere possible doubt, because everything is open to some possible or imaginary doubt. It’s that state of the case which, after the entire comparison and consideration of all the evidence, leaves the mind of the jurors, that they cannot say they feel an abiding conviction of the truth of the charges.”
During voir dire, the trial court had the following exchange with Prospective Juror No. 2:
“Juror: As a law abiding citizen, I think anybody who is charged with a hideous crime like murder, to me,... they’re probably guilty as charged, because I don’t think the cops would just go on and just arrest anybody for it, for that type of a crime.
“Court: Well, to a certain extent that’s—there is truth in that statement. But here is where the truth sort of disappears: The police have to have probable cause, which basically means a reasonable suspicion that somebody is involved in a crime before they can make an arrest. So nobody ends up here that hasn’t been arrested, and they have been arrested because some police officer, without the opportunity to view... the evidence on the other side, without the opportunity to cross-examine the witnesses and question what they have to say, has looked at the evidence and decided there’s at least a strong suspicion that the person is involved. That’s all that’s required to get us to that point. Now, in a jury trial, the legal standard is much, much higher. It’s proof beyond a reasonable doubt. There is no test—There’s no point in the process that leads us to today where anyone has looked at the evidence and decided whether or not the defendant is guilty beyond a reasonable doubt. This is that time. And so it’s very possible for a person who is innocent to be sitting here facing trial, and it happens all the time. Now what happens at the end of the case, if you look at the evidence and you say: You know what? I think the police were probably right. I sort of suspect he was guilty too, but it’s not proved to you beyond a reasonable doubt. You have to do the same thing in that case, that a police would do if he had some sneaking suspicion but it wasn’t a strong suspicion. He’d have to let the person go and the law requires you at the end of the trial to vote not guilty, the same way. At the end of the case, if you can’t say that the evidence proves to you that the defendant is guilty beyond a reasonable doubt, he is entitled to an acquittal. And that’s whether the charge is drunk driving, prostitution, or murder. The standard is the same. Does that help you a little bit to understand how we get this point, but someone could still have a trial and be determined to be not guilty of the crime?
“Juror: I understand your point. My point is that what you said is possible, but not probably so, so—in just my personal belief
“Court: It’s not true
“Juror: That person who is charged with murder, they’re probably guilty, but like you said, it’s possible that they’re not, but they probably are.
“Court: And we’re here for that possibility, because it is always possible and you have to make that decision after you hear the facts, not before.”
Later on, Prospective Juror No. 16 shared his concern that his “English [was] not very good.” The trial court remarked that the prospective juror’s language skills had been “good so far,” and the prospective juror responded that he had difficulty comprehending “a lot of technical words.” The trial court interjected: “Like beyond a reasonable doubt? Nobody understands that.” The trial court subsequently thanked Prospective Juror No. 16 for raising the concern about his language skills but assured him that he was a competent English speaker and that it was important for people from different cultures, including those individuals who speak English as a second language, to be part of the jury system.
Also during voir dire, Prospective Juror No. 18 stated that he would be an impartial juror and that if the appellant “is not proven guilty here, he walks.” The prospective juror went on to ask the trial court “what is reasonable and what is doubt?” The trial court responded: “You’re not the only guy that would like to ask.... I’ll tell you that—I’ll describe it for you later, it—there’s a list of cases that have been overturned that could fill up a phone book on judges trying to redefine reasonable doubt, and then getting overturned, for doing so. So I—I can’t really redefine it for you. I’ll read you the instruction, it’s one of those things that has its own definition, and all I can do is give you that definition, unfortunately. That’s all I can give you. I’ll read it to you again a little bit later, but everybody—everybody will be given the same instruction, and you just follow it the best you can.”
At the conclusion of the case, the trial court instructed the jury with CALCRIM No. 220, as follows:
“The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not [be] biased against the defendant because he’s been arrested, charged with these crimes, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the defendant’s guilt beyond a reasonable doubt. And whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
C. Relevant Authority
“[A] defendant is innocent unless and until the government proves beyond a reasonable doubt each element of the offense charged[.]” (Clark v. Arizona (2006) 548 U.S. 735, 766.)
D. Analysis
According to appellant, the trial court “essentially condoned the misguided perception of [Prospective Juror No. 2] when he adopted the juror’s position that a defendant charged with murder is probably guilty until proven otherwise.” We disagree. When the prospective juror stated his belief that anyone arrested for murder was “probably” guilty, the trial court promptly corrected this mistaken belief. The trial court explicitly stated that even though probable cause is required to arrest someone, “the legal standard is much, much higher” to prove that someone is guilty. The trial court went on to state that the prosecution was required to prove appellant’s guilt “beyond a reasonable doubt[,]” and that if “[a]t the end of the case... you can’t say that the evidence proves to you that the defendant is guilty beyond a reasonable doubt, he is entitled to an acquittal.” In short, the trial court was clear in its comments that the prosecution had the burden of proving that appellant was guilty beyond a reasonable doubt.
We likewise reject appellant’s argument that the trial court’s comments to Prospective Jurors Nos. 16 and 18 trivialized the reasonable doubt standard. Early during voir dire proceedings, the trial court prefaced its comments with the following: “Once in a while during jury selection, I’ll make a joke or I’ll make light of something, get a laugh. Part of it is just for my own entertainment. Part of it is for yours.” When the trial court later quipped that “[n]obody understands” the concept of reasonable doubt, he was clearly making a joke and attempting to assuage Prospective Juror No. 16’s concerns about his language skills. No reasonable juror could have understood that comment as suggesting that the bedrock concept of reasonable doubt was beyond anyone’s comprehension. The trial court’s comments to Prospective Juror No. 18 were made in the same spirit. His statement that one could “fill up a phone book on judges trying to redefine reasonable doubt,” was certainly hyperbole and not to be taken seriously.
In short, the trial court did not err when it made the challenged comments to Prospective Jurors Nos. 2, 16, 18. In any event, if there was error, it was harmless under any standard. (Chapman v. California (1967) 386 U.S. 12, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) The jury was twice instructed on the prosecution’s burden of proof and the reasonable doubt standard, once at the beginning of voir dire and once at the conclusion of the trial. Moreover, the jurors were provided with the jury instructions on burden of proof and reasonable doubt in written format and were specifically instructed to refer back to them during deliberations. During closing argument, the prosecution stated that it was the People’s burden (and not appellant’s burden) to prove that appellant was guilty beyond a reasonable doubt, and defense counsel reiterated this principle when he stated that “the People have the burden of proving beyond a reasonable doubt, [that] it was the defendant who committed the crime.” In light of the court’s verbal instructions, the written instructions, and the argument by both sides, there is no doubt that the jury understood the proper burden and standard of proof required to convict appellant.
Because we conclude that the trial court did not err in denying the motions for a mistrial and to discharge the venire, and also did not err in its remarks toward the offending jurors or regarding the burden of proof and the reasonable doubt standard, we reject appellant’s cumulative error argument.
Citing Sullivan v. Louisiana (1993) 508 U.S. 275, 277–282 and People v. Phillips (1997) 59 Cal.App.4th 952, appellant argues that the trial court’s comments resulted in structural error and thus reversal is automatic. Both cases are inapposite. In Sullivan, the Supreme Court held the error was structural and per se reversible because the trial court had instructed the jury on a definition of “‘reasonable doubt’” that was held unconstitutional by the Supreme Court in an earlier case. (Sullivan v. Louisiana, supra, at p. 277.) In Phillips, the Court of Appeal held that the trial court’s abject failure to instruct the jury on the presumption of innocence and the prosecution’s burden of proving appellant’s guilt beyond a reasonable doubt was reversible error. (People v. Phillips, supra, at p. 958.) Neither the circumstances of Sullivan or Phillips are present in this case.
IV. CALCRIM No. 600
A. Appellant’s Argument
Appellant contends the trial court committed reversible error by instructing the jury on CALCRIM No. 600 because there was no evidence to support the existence of a “kill zone.” Appellant also contends the trial court committed reversible error by reading the 2006 version of CALCRIM No. 600 to the jury, which ostensibly contains an inaccurate statement of the law.
B. Summary of Proceedings Below
The trial court instructed the jury on CALCRIM No. 600 as follows:
“Now, a person may intend to kill a specific victim or victims and at the same time intend to kill anyone within a particular zone of harm or kill zone.
“In order to convict the defendant of the attempted murder of Daniel Hernandez, Jesus Cabrera or Manuel Galvan, the People must prove that the defendant not only intended to kill Renato Martinez, but also either intended to kill Daniel Hernandez, Jesus Cabrera and/or Manuel Galvan, or intended to kill anyone within the kill zone.
“If you have a reasonable doubt whether the defendant intended to kill Daniel Hernandez, Jesus Cabrera or Manuel Galvan, or intended to kill Renato Martinez by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of either Daniel Hernandez, Jesus Cabrera or Manuel Galvan.”
Defense counsel did not object below to the reading of CALCRIM No. 600 to the jury.
C. Relevant Authority
Purportedly erroneous instructions are reviewed in the context of the entire charge to determine whether it is reasonably likely the jury misconstrued or misapplied the challenged instruction. (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.)
A “defendant may be convicted of the attempted murders of any within the kill zone, although on a concurrent, not transferred, intent theory.” (People v. Bland (2002) 28 Cal.4th 313, 331 (Bland).) “The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them.” (Id. at p. 329.) Concurrent intent exists “‘when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure A’s death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a “kill zone” to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim.... Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.’” (Id. at pp. 329–330.)
D. Analysis
Assuming, but not deciding, that the issue was preserved for appeal, we conclude that the trial court properly instructed the jury with the kill zone instruction. There was evidence of the following: Appellant attempted to enter the outside area where a group of partygoers were standing. Martinez, who was standing near the other partygoers, stood in appellant’s way and prevented him from moving forward. The two men got into a fight and appellant pulled out a gun. Appellant fired five to ten shots at Martinez and the group of partygoers standing near him. In short, appellant fired multiple shots at a group of partygoers. In our view, this was sufficient evidence to support the “‘kill zone’” instruction. (See, e.g., People v. Bragg (2008) 161 Cal.App.4th 1385, 1393 (Bragg) [“‘kill zone’” instruction proper where defendant fired at a group of people outside of a market].)
Because we conclude that the trial court properly instructed the jury on CALCRIM No. 600, we reject appellant’s additional argument that defense counsel was ineffective in not objecting to this instruction. (People v. Thomas (1992) 2 Cal.4th 489, 531 [failure to make meritless objection does not constitute ineffective assistance of counsel].)
Appellant argues that the kill zone instruction did not apply because the intended murder victim, Martinez, was standing close to appellant and the other victims were standing further away. Thus, appellant did not necessarily need to shoot the other victims in order to kill Martinez. But the “‘kill zone’” instruction or the concept of concurrent intent does not require this type of connection between the primary intended target and the other individuals within the kill zone. Indeed, “the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within... the ‘kill zone.’” (Bland, supra, 28 Cal.4th at p. 329.)
Appellant also argues that because appellant had not “fanned” shots indiscriminately into the crowd, a “kill zone” was not established. While spraying a crowd with bullets can certainly establish a “kill zone,” it is by no means the only way to do so. “Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the fact finder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.” (Bland, supra, 28 Cal.4th at p. 330.) Here, defendant fired multiple shots at Martinez and a group of people standing near him. This created a zone of harm around Martinez and justified the “kill zone” instruction.
People v. Anzalone (2006) 141 Cal.App.4th 380, a case relied on by appellant, is inapposite. In that case, one victim was standing at the front of a car while the three other victims were standing at the rear of car. The defendant fired one shot at the victim in the front and then fired a second shot at the three victims in the back. During closing argument, the prosecutor argued that the defendant could be guilty of four attempted murders simply because all four individuals were in the “‘zone of danger’” without explaining that the kill zone is defined by the nature and the scope of the attack and that the attack must reasonably allow the inference that defendant intended to kill some primary victim by killing everyone in that primary victim’s vicinity. (Id. at pp. 392–393.) The Court of Appeal held that this argument was “erroneous and misleading.” (Id. at p. 393.) Here, in stark contrast, the prosecutor correctly told the jury that “A person who primarily intends to kill one person may also concurrently intend to kill others within that particular kill zone. Intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer that the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.”
We now turn to appellant’s argument that reversal is warranted in this case because the jury was read the 2006 version of CALCRIM No. 600. As noted above, the trial court instructed the jury in relevant part that: “If you have a reasonable doubt whether the defendant intended to kill Daniel Hernandez, Jesus Cabrera or Manuel Galvan, or intended to kill Renato Martinez by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of either Daniel Hernandez, Jesus Cabrera or Manuel Galvan.”
In 2008, CALCRIM No. 600 was revised to read in relevant part: “If you have a reasonable doubt whether the defendant intended to kill _______ or intended to kill ______ by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of _______.”
According to appellant, the 2006 version read to the jury “erroneously allowed the jury to conclude that if there was an intent to kill one person in a ‘kill zone’ then it could convict of attempted murder of anyone whom the shooter intended to harm in that ‘kill zone.’”
As appellant acknowledges, an identical argument was raised and rejected in Bragg, supra, 161 Cal.App.4th 1385. In Bragg, the jury was instructed with the same version of CALCRIM No. 600 that the jury in appellant’s case was instructed with. On appeal, the defendant argued that the instruction was erroneous because it allowed the jury to find him guilty of attempted murder merely by finding that the defendant intended to harm, rather than kill, those in the zone of danger around the intended victim. (Bragg, supra, at p. 1395.) The Court of Appeal disagreed, holding that: “No reasonable juror could have failed to understand from the instructions as a whole that, to the extent the court occasionally used the word ‘harm’ or the phrase ‘zone of harm,’ the harm to which the court referred was the ultimate harm of death and that the law required that the defendant had to have intended to kill the victims. Given the totality of the instructions, there was no error.” (Id. at p. 1396)
We find the reasoning in Bragg persuasive. Here, the jury was instructed: “In order to convict the defendant of the attempted murder of Daniel Hernandez, Jesus Cabrera or Manuel Galvan, the People must prove that the defendant not only intended to kill Renato Martinez, but also either intended to kill Daniel Hernandez, Jesus Cabrera and/or Manuel Galvan, or intended to kill anyone within the kill zone.” (Italics added.) In a separate instruction, the jury was also told that in order to “prove that the defendant [was] guilty of attempted murder, the People must prove that... the defendant intended to kill that person.” (Italics added.) “We credit jurors with intelligence and common sense (see People v. Venegas (1998) 18 Cal.4th 47, 80) and do not assume that these virtues will abandon them when presented with a court’s instructions. [Citations.]” (People v. Coddington (2000) 23 Cal.4th 529, 594.)
In sum, we conclude that given the totality of the instructions, there was no error in instructing the jury with the 2006 version of CALCRIM No. 600.
V. Voluntary Intoxication Instruction
A. Summary of Proceedings Below and Appellant’s Argument
After the jury members had listened to closing arguments and had received their final instructions, they began their deliberations in the jury room. While this was taking place, the trial court noted that “nobody requested [a] voluntary intoxication instruction.” The trial court stated that even though there was not enough evidence of intoxication to affect the verdict, it nonetheless believed that there was sufficient evidence to warrant an instruction on voluntary intoxication. The trial court then said: “I’ll stick [an instruction] in if you want me to.” Defense counsel stated that he would request the instruction even though he “tend[ed] to agree with the court” that there was not enough evidence of intoxication to affect the verdict. Defense counsel asked whether the jury had received the packet of written instructions and verdict forms, and the trial court stated that it had not yet received them. Defense counsel then stated: “Okay. Then I will make a request [to] [include an instruction on voluntary intoxication].”
The trial court followed up with: “The way the instruction will read, in case you’re interested, it will read: They can consider it essentially as to [counts] 1 through 4, as it may affect the defendant’s ability either to form the specific intent to kill or to deliberate and premeditate; however, it’s not a defense to the lesser crimes to [counts] 2, 3, and 4. Is that acceptable?” Counsel for both sides agreed that including such an instruction was acceptable. Neither party requested that the trial court orally read the instruction to the jury in addition to including a written copy in the packet of instructions. The trial court thus included CALCRIM No. 3426, the instruction on voluntary intoxication, in the packet of instructions delivered to the jury.
The instruction was as follows: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the specific intent to kill, and/or whether he acted with deliberation, premeditation.
Appellant argues that trial court committed reversible error by not reading aloud CALCRIM No. 3426 to the jury.
B. Relevant Authority
Generally, minor discrepancies between written and oral instructions do not constitute reversible error, and written jury instructions govern in any conflict with those delivered orally. (People v. Crittenden (1994) 9 Cal.4th 83, 137–138.) However, when the trial court delivers a written instruction to the jury, but does not read the instruction aloud, “it is not possible to determine if the jurors actually read their written [instruction].” (People v. Murillo (1996) 47 Cal.App.4th 1104, 1107.) Thus, “we must assume they did not, and approach the case as though the instruction was not given at all.” (Ibid.)
Both parties agree that if the trial court committed error in not reading CALCRIM No. 3426 to the jury, the prejudicial effect of that error should be assessed under People v. Watson, supra, 46 Cal.2d 818.
C. Analysis
Appellant argues that the trial court committed error by not reading CALCRIM No. 3426 to the jury. The People respond that the trial court had no sua sponte duty to instruct the jury on CALCRIM No. 3426 in the first place, and thus, its inclusion of that instruction in the packet delivered to the jurors without an oral instruction could not constitute error.
Assuming, without deciding, that the trial court committed error by not reading CALCRIM No. 3426 aloud, we conclude that the error was harmless. There was minimal evidence of appellant’s intoxication in this case. The shooting took place at approximately 12:30 a.m. Sanchez testified that earlier that day, he and appellant had been drinking beer and smoking rock cocaine. There was no evidence that appellant was intoxicated or under the influence of either substance at the time of the shooting. On the other hand, there was ample evidence that appellant acted deliberately and with purpose. Specifically, after appellant was confronted by a rival gang member at a party located in rival gang territory, he left the party, returned with a weapon and fellow gang members, and shot at a crowd of people before yelling his own gang’s name. Thus, assuming that CALCRIM No. 3426 was not given at all, it is not reasonably probable that appellant would have received a more favorable result.
VI. Sentencing and Fee Issues
A. Count 1: 10-year Gang Enhancement
Appellant contends that the trial court erred by imposing a 10-year gang enhancement pursuant to section 186.22, subdivision (c)(1) on count 1. The People agree that the enhancement was erroneously imposed.
We agree as well. Because the jury convicted appellant of first-degree murder, an offense that carries a minimum sentence of 25 years to life in state prison, appellant’s gang enhancement is governed by the 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5). (People v. Lopez (2005) 34 Cal.4th 1002, 1007–1008.) We thus strike the 10-year sentence enhancement imposed under section 186.22, subdivision (c)(1) on count 1 and replace it with a 15-year minimum parole eligibility term under subdivision (b)(5) of that same section. Of course, our modification of the judgment has no practical effect because appellant’s conviction for first-degree murder carries a 25-year minimum parole eligibility term. (§ 190, subds. (a) & (e).)
B. Counts 2, 3, and 4
The trial court orally pronounced appellant’s sentence on the premeditated attempted murder counts as follows: on count 2, 15 years to life for the underlying offense plus 20 years to life for the firearm enhancement; on count 3, 15 years to life for the underlying offense plus 25 years to life for the firearm enhancement; and on count 4, 15 years to life for the underlying offense plus 25 years to life for firearm enhancement.
The abstract of judgment reflects the following sentence: on count 2, 15 years to life for the underlying offense plus 20 years to life for the firearm enhancement; on count 3, 15 years to life for the underlying offense plus 20 years to life for the firearm enhancement; and on count 4, 15 years to life for the underlying offense plus 25 years to life for firearm enhancement.
As to counts 2, 3, and 4, the jury found that appellant personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury to all three victims. This finding resulted in a mandatory sentence enhancement of 25 years to life for each count. (§ 12022.53, subd. (d).) Thus, the trial court should have imposed, and the abstract of judgment should reflect, the following sentence: on count 2, 15 years to life for the underlying offense plus 25 years to life for the firearm enhancement; and on count 3, 15 years to life for the underlying offense plus 25 years to life for the firearm enhancement. The trial court’s oral pronouncement and the abstract of judgment correctly reflect 15 years to life for the underlying offense plus 25 years to life for firearm enhancement on count 4.
C. Court Security Fees
The People contend that the trial court erred by imposing only one $20 court security fee, instead of four $20 court security fees for an aggregate of $80. The People are correct. A court security fee must be imposed for each conviction of a criminal offense. (People v. Schoeb (2005) 132 Cal.App.4th 861, 863, 865–867; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328 [“A $20 court security fee was mandated for each of appellant’s 10 convictions”].)
Appellant suffered four such convictions, but the trial court imposed only one security fee. Three more fees must be added, for a total of $80.
DISPOSITION
The abstract of judgment is modified to reflect the following: on count 1, the 10-year consecutive sentence on the gang enhancement (§ 186.22, subd. (c)(1)) is stricken and replaced with a 15-year minimum parole eligibility requirement (§ 186.22, subd. (b)(5)); on count 2, the sentence enhancement under section 12022.53, subdivision (d) should be for 25 years, and not 20 years; and on count 3, the sentence enhancement under section 12022.53, subdivision (d) should be for 25 years, and not 20 years. Three additional $20 security fees pursuant to section 1465.8, subdivision (a)(1) are ordered in this case, for a total of $80 in such fees.
The clerk of the Superior Court is directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: BOREN, P. J. CHAVEZ, J.
“A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.
“In connection with the charge of Murder and Attempted Murder, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to kill. If the People have not met this burden, you must find the defendant not guilty of the crimes charged in Counts 1 though 4.
“You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to assault with a firearm.”