Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA022595. Keith D. Davis and Teresa S. Bennett, Judges.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant Miguel Angel Gonzalez.
John Ward, under appointment by the Court of Appeal, for Defendant and Appellant Silvester Junior Gonzalez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and David Delgado-Rucci, and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
Following a shooting behind Miguel Jr.’s restaurant in Fontana in May 2003, then 15-year-old Miguel Angel Gonzalez (Miguel) was charged with the murder of Aldo Rodriguez, the attempted murder of Albert Sandoval, and discharging a firearm in a grossly negligent manner. (Pen. Code, §§ 187, subd. (a), 664, 246.3; counts 1, 2, & 3.) Miguel’s older brother, then 21-year-old Silvester Junior Gonzalez (Silvester) was charged with the same crimes. The murder victim, Rodriguez, died as a result of his gunshot wounds, but the attempted murder victim, Sandoval, was not struck by any bullets.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendants were tried before the same jury and found guilty as charged. The jury also found that defendants committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)) and found multiple firearm allegations true in counts 1 and 2. Specifically, in count 1, the jury found that Miguel and “a principal” personally used a firearm, personally discharged a firearm, and personally discharged a firearm resulting in great bodily injury and death. (§ 12022.53, subds. (b)-(e)(1).) In count 2, the jury found that Miguel and a principal personally used and personally discharged a firearm. (§ 12022.53, subds. (b), (c), & (e)(1).) The jury also determined that the murder was in the first degree (§ 189), but was not asked to determine, and did not determine, the degree of the attempted murder.
Miguel was sentenced to an aggregate term of 50 years to life, plus 40 years 8 months. Silvester was sentenced to 50 years to life, plus 30 years 8 months. Both defendants appeal. Miguel joins Silvester’s contentions. We consider each defendant’s contentions to the extent they may benefit the other.
Miguel was sentenced to 25 years to life on count 1, plus 25 years to life for the section 12022.53, subdivision (d) enhancement (discharge of firearm causing great bodily injury or death) on count 1. Additional 10- and 20-year terms were imposed but stayed for the section 12022.53, subdivisions (b) and (c) enhancements (personal use and personal discharge, respectively) the jury also found true on count 1. No additional term was imposed for the gang enhancement on count 1. (§ 12022.53, subd. (e)(2).)
Silvester received the same sentence as Miguel on count 1, namely, 25 years to life for the murder conviction, plus 25 years to life for the section 12022.53, subdivision (d) enhancement. Additional 10- and 20-year terms were imposed but stayed for the section 12022.53, subdivisions (b) and (c) “principal” firearm enhancements on count 1. No additional term was imposed for the gang enhancement on count 1.
II. SUMMARY OF CLAIMS AND DISPOSITION
Miguel claims: (1) the jury was erroneously instructed, during deliberations, that the personal discharge or section 12022.53, subdivision (c) allegation against Miguel in count 2 could be found true based on aider and abettor principles; (2) insufficient evidence supports the “primary activities” element of the gang enhancement true findings; (3) Miguel’s consecutive and enhanced terms on count 3 should have been stayed pursuant to section 654; and (4) the trial court should have stricken, rather than imposed and stayed, the lesser-term firearm enhancements on counts 1 and 2 pursuant to section 12022.53, subdivisions (h) and (j). We find Miguel’s second and third claims without merit as applied to either defendant.
Regarding Miguel’s first claim, we conclude that the trial court erred to the extent it instructed the jury that it could rely on aider and abettor principles in determining whether Miguel personally discharged a firearm in count 2. Furthermore, the error involved a critical element of the section 12022.53, subdivision (c) enhancement, and is not harmless beyond a reasonable doubt. Accordingly, the 10-year term that was imposed on Miguel’s gang enhancement on count 2 must be stricken. (§ 12022.53, subd. (e)(2) [term on gang enhancement may not be imposed in addition to a term on a § 12022.53 enhancement unless the defendant personally used or personally discharged a firearm in the commission of the offense].)
We reject Miguel’s fourth claim based on the state Supreme Court’s recent decision in People v. Gonzalez (2008) 43 Cal.4th 1118. There, the court held that, after the trial court imposes punishment for the section 12022.53 enhancement with the longest term of imprisonment, it must impose and then stay punishment for any lesser-term section 12022.53 or 12022.5 enhancements found true for the same crime.
Silvester raises a single claim on this appeal, namely, that the instructions on aiding and abetting and the natural and probable consequences doctrine were “legally inadequate” and deprived him of a fair trial. We reject this claim. As we explain, the instructions correctly stated the law and did not allow either defendant to be convicted on the basis of a “legally inadequate” theory. The instructions did, however, allow the jury to convict Silvester on the basis of a factually unsupported theory, but based on the entire record it is not reasonably probable that the jury relied on the factually unsupported theory in convicting Silvester of any of the charged crimes.
Lastly, the People request that we correct two identical errors in the abstract of judgment for each defendant. We agree that the abstracts must be amended as the People request. We therefore remand the matter to the trial court with directions to (1) strike the 10-year term imposed on Miguel for the gang enhancement on count 2; (2) correct the additional errors in the abstracts of judgment identified by the People; and (3) forward copies of the amended and corrected abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgments.
III. FACTS AND PROCEDURAL HISTORY
A. Prosecution Evidence
The following facts are stated in the light most favorable to the prosecution.
1. Background
In May 2003, brothers Miguel, then age 15, and Silvester, then age 21, were living with their parents in a house in Fontana. Both were members of the West Side Fontana Neighborhood Locos (NHL), a criminal street gang. Miguel’s girlfriend, Ashley Henrickson, and Silvester’s girlfriend, Crystal Henrickson, were sisters and also lived with defendants at their parents’ house. Rudy Leyva hung out with Miguel and Silvester, and was also a member of the NHL. Sometime prior to May 20, 2003, members of a rival gang from Los Angeles, the 18th Street gang, fired gunshots at defendants’ home. Rodriguez and Sandoval were members of the 18th Street gang.
2. The Shooting
On the afternoon of May 20, 2003, Leyva drove Crystal and Silvester to Miguel Jr.’s restaurant in Fontana in Leyva’s primer gray Ford Escort. Crystal and Silvester walked up to the restaurant window to order food, while Leyva waited in the car. At that time, Rodriguez and Sandoval were eating inside the enclosed patio of the restaurant. They were unarmed.
Silvester entered the patio, exchanged some words with Rodriguez, and went back outside. It appeared that Silvester was looking for trouble. Rodriguez told Sandoval, “Man, I know this fool, he came talking shit.” Silvester came back outside, and told Crystal that two members of the 18th Street gang which had shot up his house were there. Silvester and Crystal waited at the restaurant while Leyva drove home to pick up Miguel. Defendants’ house was approximately a five-minute drive and just over three miles away from the restaurant.
After Leyva and Miguel returned, Rodriguez and Sandoval finished eating and walked outside. Silvester then “hit up” Sandoval, asking where he was from. Sandoval replied that he was from 18th Street. Someone yelled out, “West Side,” which Sandoval understood to mean the NHL gang. Sandoval knew there had been problems between the 18th Street and NHL gangs, and understood Silvester’s “hit up” to be a gang-related challenge.
At the same time, Miguel was outside, and walked back to Leyva’s car to retrieve a handgun. Miguel returned to the back of the restaurant with the gun and fired multiple shots at Sandoval and Rodriguez. Sandoval and Rodriguez ran in different directions. Rodriguez “balled up” before he ran across the street. Sandoval was not struck by any bullets, and hid behind a beauty salon. Silvester, Miguel, and Crystal returned to Leyva’s car, and Leyva sped home.
After defendants left the scene with Crystal and Leyva, Sandoval crossed the street and found Rodriguez lying on his back in a church parking lot. Rodriguez was bleeding from his mouth and gasping for air. He asked Sandoval not to let him die. Sandoval said help would arrive soon. Other bystanders came to give assistance. Soon thereafter, police officers and paramedics arrived. Rodriguez apparently died at the scene.
After Miguel returned home, he appeared nervous and his girlfriend Ashley asked him what was wrong. Miguel said there had been an argument at Miguel Jr.’s restaurant, he had shot someone, and was in trouble. He explained that he shot the person because he was an 18th Street gang member, and mentioned the prior incident when shots were fired at his and Silvester’s house. He also told Ashley he had accidently shot Silvester in the arm. Silvester was in the way even though Miguel told him to move before he began firing the gun.
3. The Investigation
An autopsy on Rodriguez revealed he had suffered gunshot wounds from two bullets. One of the wounds was not necessarily fatal, but the other one pierced his aorta, causing massive internal bleeding and death within minutes.
Five 9-millimeter bullet casings were found behind the restaurant. Bullet strike marks were found on a block wall and on some aluminum fencing. The bullet that struck the aluminum fencing also pierced the window of a nearby residence and lodged in a wall inside the residence. The occupant of the residence was home at the time of the shooting. The gun used in the shooting was never found.
4. Miguel’s Statement
Detectives interviewed Miguel, and a videotape of the interview was played for the jury. Miguel said the 18th Street gang “had a green light” on him and he “messed up.” He denied being a member of the NHL, but admitted he hung around them.
Miguel explained he brought the gun with him to the restaurant after Leyva picked him up and drove him back to the restaurant. He said the victims were acting “all crazy” and were fighting with Silvester when he and Leyva returned. He admitted he “[s]moked” Rodriguez and chased Sandoval while firing probably the entire clip of ammunition in the gun.
Miguel said he did not know what happened to the gun after the shooting. Later during the interview, he claimed he fired the gun because one of the victims picked up a large rock and tried to hit Silvester with it.
5. Silvester’s Statement
Detectives also interviewed Silvester, and a videotape of the interview was also played for the jury. According to Silvester, Miguel initially accompanied him, Crystal, and Leyva to the restaurant. Silvester and Crystal got out of the car to order food, while Leyva and Miguel left to retrieve the gun. Leyva had recognized one of the victims in the restaurant as an 18th Street gang member. Before Leyva and Miguel left to retrieve the gun, Leyva and the victims were “[m]addogging” each other.
Before Leyva and Miguel returned, Rodriguez and Sandoval walked outside the restaurant and got “all crazy on” Silvester. Silvester began fighting with them outside the restaurant. During the fight, Miguel and Leyva returned to the restaurant. After they saw the fight, they went back to the car to retrieve the gun. Silvester then heard shots. Everyone ran, and one of the victims eventually fell.
After the shooting, Silvester noticed he had been shot in the right forearm, and Miguel apologized to him for shooting him. Before Miguel fired the gun, he told Silvester to move but Silvester did not hear him. Miguel told Silvester he fired the gun because one of the victims was about to hit Silvester with a rock.
Silvester said he was not expecting the shooting. He knew the victims were from the 18th Street gang, and he wanted to ask them what the “problem” was before Leyva and Miguel returned with the gun. He said he fought with the victims in self-defense after they “came at [him].” He knew the victims were unarmed.
6. Gang Expert Testimony
Fontana Police Sergeant William Green testified as an expert on criminal street gangs. He discussed how he and other officers identified or documented gang members, and the customs and habits of criminal street gangs. Gang members earn “respect” from their community and other gangs through intimidation, fear, and violence. Younger gang members, those in their mid- to late-teens, often “put in” the majority of the violent “work” for the gang to show their loyalty and establish themselves within the gang.
The West Side Fontana gang consisted of two gangs, the West Side Fontana Diablos or DBL’s, and the West Side Fontana Neighborhood Locos or NHL’s. The NHL gang had up to 60 documented members at one time, and used the symbols “NHL” and “WSF.” NHL members often wore New York Yankees caps because the prominent “N” in the logo symbolized the gang.
The 18th Street gang was one of the largest gangs in Los Angeles, with several hundred members. Still, 18th Street gang members would be at a disadvantage in an area run by an indigenous Fontana gang, because most of the 18th Street gang members’ resources and backup would be in Los Angeles. A “green light’ signified a person who had been marked for harm, including death.
According to Green, NHL’s primary activities included homicide, attempted homicide, grand theft auto, narcotics sales, and other crimes. Green also testified about two predicate crimes, namely, assault with a deadly weapon and unauthorized vehicle driving, that had been committed by two NHL members, Louis Alarcon and Johnny Arias. Court records of their convictions were admitted into evidence.
Miguel admitted he was an NHL gang member to the probation department and jail staff. He wore gang clothing and went by the moniker of “Little Insane.” Green opined that Miguel was active in the NHL as an “up and com[ing]” member who was establishing his own reputation in the gang. The shooting was consistent with Miguel “putting in work” for the gang. Leyva was also a documented and admitted NHL member. Green opined that Leyva was an active NHL member, based on his tattoos and gang graffiti found on Leyva’s hat and in his home.
Silvester had never admitted gang membership, did not have gang tattoos, and had not been observed by police flashing gang signs. The only NHL gang member he had been observed with was Miguel. However, Silvester lived in NHL territory, had dressed in gang attire in the past, and went by the moniker of “Insane.” In addition, the San Bernardino County Sheriff’s Department and the West Valley Detention Center had documented Silvester as an NHL member.
Green opined that Silvester was an active or associate NHL member. He based his opinion on Silvester’s status as a documented NHL member, the gang attire he wore, the gang graffiti found in defendants’ home, Green’s investigation of the shooting, the circumstances of the shooting, Crystal’s statements concerning Silvester’s past involvement with the gang, and a letter Silvester wrote admitting he was a gangster.
Green also opined that the charged crimes were committed for the benefit of the NHL. He based his opinion on the circumstances of the shooting, the previous shooting at defendants’ house, and the “green light” Miguel believed the 18th Street gang had put on him. In addition, the shooting served to instill fear and intimidation in the community and garnered “respect” for the NHL, particularly because 18th Street was a much larger gang than the NHL.
Green explained that, if members of one gang shoot up the house of a rival gang member, the rival gang members will typically respond in kind in order to promote respect for their gang. And, if a “green light” has been put on a gang member and that gang member “takes out” a member of the gang that has placed the green light, the green light will be taken away. Green had heard nothing in the course of his investigation of the shooting that indicated it was not gang related.
The shooting became gang related, Green said, once Sandoval and Rodriguez were “hit up” at the restaurant. Green explained that, once a gang member “hits up” another, an altercation will only be avoided if the two are from the same neighborhood. Furthermore, in the Hispanic gang culture, persons who appear to be from another gang will typically be confronted unless family members are present. The person who is “hit up” will be expected to respond to the challenge based on pride for his own neighborhood.
Green also said it is not uncommon for a gang-related “hit up” to escalate into a shooting. Nor is it unusual for gang members to request and wait for backup before engaging in a conflict. The backup person would be obligated to help his fellow gang member, even if that meant killing his fellow gang member’s adversary. It is also common for gang members to pass guns between each other before and after a crime.
B. Defense
Neither defendant testified or presented any other affirmative evidence.
IV. DISCUSSION
A. The Trial Court Prejudicially Erred in Instructing the Jury, During Deliberations, That It Could Rely on Aiding and Abetting Principles in Finding the Section 12022.53, Subdivision (c) Personal Discharge Allegation True Against Miguel in Count 2
Miguel claims the trial court prejudicially erred in instructing the jury, in response to a question during deliberations, that it could rely on aiding and abetting principles in determining the truth of the section 12022.53, subdivision (c) personal discharge enhancement allegation against Miguel in count 2. He claims the error prejudiced the jury’s true findings on the section 12022.53, subdivisions (b) and (c) enhancements that were alleged against him in count 2, and also prejudiced the 10-year term the trial court imposed for the section 186.22, subdivision (b) gang enhancement against Miguel in count 2.
We agree that the instruction prejudiced the jury’s finding that Miguel personally discharged a firearm in count 2, because the instruction erroneously allowed the jury to use aiding and abetting principles in making this personal discharge finding. But the jury also found that a principal personally discharged a firearm in count 2, and that defendants committed count 2 for the benefit of a criminal street gang. For this reason, the challenged instruction did not prejudice the section 12022.53, subdivision (b) or (c) findings on count 2 against either Miguel or Silvester. (§ 12022.53, subd. (e)(1) [§ 12022.53, subds. (b), (c), & (d) enhancements apply to any person who is “a principal” in the commission of the offense, provided the person committed the offense for the benefit of a criminal street gang].)
The instruction did, however, prejudice the 10-year term the court imposed on Miguel for his section 186.22, subdivision (b) gang enhancement in count 2. (§ 12022.53, subd. (e)(2) [gang enhancement may not be imposed in addition to § 12022.53 firearm enhancement unless the defendant personally used or discharged firearm in the commission of the offense].) As we explain, the instruction was not harmless beyond a reasonable doubt. In view of the entire record, including the evidence, the jury’s question, and the trial court’s response, it is reasonably possible, and even reasonably probable, that the instruction affected the jury’s finding that Miguel personally discharged a firearm in count 2. Lastly, this claim does not benefit Silvester, because the court did not impose additional terms on Silvester for his gang enhancements on counts 1 and 2.
1. Relevant Background
Regarding Miguel, the jury was instructed to find whether Miguel personally and intentionally discharged a firearm in count 2. (§ 12022.53, subd. (c).) Regarding Silvester, the jury was instructed to find whether “a principal” personally and intentionally discharged a firearm in count 2. It was not alleged, and the jury was not instructed, to find whether Silvester personally and intentionally discharged a firearm in count 2.
During deliberations, the jury sent a note to the court, referring to the “first allegation” in count 2, which was whether Miguel personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c). The note asked whether the jurors could rely on aiding and abetting principles in determining the truth of the first allegation against Miguel in count 2. The court responded by writing on the note, “You may use the aiding and abetting principle for either defendant,” and returning the note to the jury.
The second allegation against Miguel in count 2 was whether Miguel personally used a firearm, within the meaning of section 12022.53, subdivision (b). The third allegation against Miguel in count 2 was whether Miguel committed count 2 for the benefit of a criminal street gang. There were no other allegations against Miguel in count 2.
The jury submitted the note to the court at 10:22 a.m. on August 17, 2006, the seventh day of deliberations. Notably, the judge who was presiding over the trial, the Honorable Keith D. Davis, was not the judge who responded to the note. Instead, the response was given by the Honorable Teresa S. Bennett in Judge Davis’s absence. In addition, Miguel’s trial counsel was not present in court at the time the court received and responded to the note. At this time, Miguel was represented by trial counsel for Silvester.
2. Analysis
Miguel first argues the trial court erroneously instructed the jury that it could rely on aiding and abetting principles, and should have instead instructed the jury that it had to find that he personally used and personally and intentionally discharged a firearm in the commission of the attempted murder in count 2, in order to find the section 12022.53, subdivision (c) allegation true against him. On this point, Miguel is mistaken.
Subdivisions (b), (c), and (d) of section 12022.53 provide for the imposition of 10-year, 20-year, and 25-year-to-life sentence enhancements, respectively, for the personal use, personal and intentional discharge, and personal and intentional discharge of a firearm causing great bodily injury or death, in the commission of any of the felonies listed in subdivision (a). These include attempted murder. (§ 12022.53, subd. (a)(1) & (a)(18).) In addition, subdivision (e)(1) of section 12022.53 states: “The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).”
Thus, under section 12022.53, subdivision (e)(1), neither personal use nor personal and intentional discharge is required on the part of the defendant against whom a subdivision (b), (c), or (d) allegation is made, as long as the crime was committed for the benefit of a criminal street gang and“any principal” personally used or personally discharged a firearm in the commission of the crime. (People v. Garcia (2002) 28 Cal.4th 1166, 1173-1174; see also People v. Hernandez (2005) 134 Cal.App.4th 474, 480.) The trial court’s response to the jury’s question was therefore correct. The jury was entitled to rely on aiding and abetting principles in finding the section 12022.53, subdivision (c) personal discharge allegation true against Miguel in count 2.
In his reply brief, Miguel modifies his argument. He concedes that an enhancement under section 12022.53, subdivision (b), (c), or (d) may be imposed based on aider and abettor principles pursuant to subdivision (e)(1) of section 12022.53. But, he argues, when a subdivision (b), (c), or (d) enhancement is imposed pursuant to subdivision (e)(1), a 10-year enhancement for participating in a criminal street gang under section 186.22, subdivision (b)(1)(C) may not also be imposed unless the defendant personally used or personally discharged a firearm in the commission of the offense. (§ 12022.53, subd. (e)(2); People v. Salas (2001) 89 Cal.App.4th 1275, 1280-1281.) Thus, he argues, the trial court could not have properly imposed the 10-year gang enhancement in count 2 unless he personally and intentionally discharged a firearm in count 2.
On this point, Miguel is correct. If the jury relied on aiding and abetting in finding that Miguel personally and intentionally discharged a firearm in count 2—as the trial court told the jury it could in response to the jury’s question—then the 10-year term the trial court imposed on Miguel’s gang enhancement on count 2 was erroneously imposed and must be stricken. (§ 12022.53, subd. (e)(2); People v. Salas, supra, 89 Cal.App.4th at pp. 1280-1281.)
The People argue that any error in the trial court’s response to the jury’s question was harmless beyond a reasonable doubt, because Miguel admitted he personally and intentionally discharged a firearm in count 2. (People v. Flood (1998) 18 Cal.4th 470, 504 [instructional error removing element of crime from jury’s consideration is harmless beyond reasonable doubt when the element is uncontested or defendant concedes or admits the element].) We disagree. The error was not harmless beyond a reasonable doubt.
The failure to instruct or to properly instruct on the element of a crime relieves the prosecution of its burden to prove its case beyond a reasonable doubt and deprives the defendant of a jury trial. The errors contravene the United States and California Constitutions. (See United States v. Gaudin (1995) 515 U.S. 506, 509-510 [115 S.Ct. 2310, 132 L.Ed.2d 444]; People v. Flood, supra, 18 Cal.4th at pp. 479-480.) Under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705], the beneficiary of a constitutional error must prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.
“‘Harmless-error review looks . . . to the basis on which “the jury actually rested its verdict.” [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.’ [Citations.]” (People v. Lewis (2006) 139 Cal.App.4th 874, 886-887.)
As explained by Justice Scalia in his dissent in Neder v. U.S. (1999) 527 U.S. 1, 35 [119 S.Ct. 1827, 144 L.Ed.2d 35], “[t]the failure of the court to instruct the jury properly—whether by omitting an element of the offense or by so misdescribing it that it is effectively removed from the jury’s consideration—can be harmless, if the elements of guilt that the jury did find necessarily embraced the one omitted or misdescribed.” And, in Justice Steven’s concurrence, there is “a distinction of true importance between a harmless-error test that focuses on what the jury did decide, rather than on what appellate judges think the jury would have decided if given an opportunity to pass on an issue.” (Id. at p. 27.)
Here, and as Miguel points out, one prosecution witness, namely, Carlos Garcia, indicated he saw Miguel hand the gun to Silvester after Miguel fired the initial shots, and that Silvester then fired more shots. Garcia also said that, when Miguel fired the initial shots, Silvester was fist fighting with Rodriguez. This evidence indicated to the jury that either Miguel and/or Silvester may have personally discharged a firearm in count 2. The evidence also showed that Silvester was a principal in the commission of count 2 and aided and abetted Miguel in the commission of count 2. And, aside from Miguel’s admission to the police that he fired the gun at Rodriguez and Sandoval, the eyewitness identifications of Miguel as the shooter were rather questionable. Reasonable jurors also could have believed that Miguel admitted to the shooting in order to protect Silvester and Leyva.
Moreover, the jury’s question to the court—whether the jury could rely on aiding and abetting principles in finding the personal discharge allegation true against Miguel in count 2—rather clearly indicated that the jury was not unanimously or entirely convinced that Miguel personally discharged a firearm in count 2. And the court’s response—that the jury could rely on aiding and abetting principles in finding that Miguel personally discharged a firearm in count 2—in combination with the evidence of Silvester’s role in the shooting, indicates that the jury may well have relied on aiding and abetting principles in finding that Miguel personally discharged a firearm in count 2.
The timing of the jury’s note and the trial court’s response in relation to the jury’s verdicts also indicates that the jury may well have relied on aiding and abetting principles in finding that Miguel personally discharged a firearm in count 2. The jury submitted its note to the court at 10:22 a.m. on August 17, the seventh day of deliberations. The trial court responded to the note by 10:44 a.m. By 11: 19 a.m., the jury had reached its verdicts.
As noted, Judge Teresa S. Bennett gave the erroneous instruction in response to the jury’s note, in the absence of Judge Keith D. Davis who was presiding over the trial.
Accordingly, it cannot be said that the jury’s true finding on the personal discharge allegation against Miguel in count 2 was surely unattributable to the court’s erroneous instruction. Stated another way, we do not believe beyond a reasonable doubt that the erroneous instruction did not contribute to the jury’s finding, or that there is no reasonable possibility that the jury’s finding was not erroneously based on aiding and abetting principles. Our conclusion is based on the evidence presented, the jury’s question to the court, the court’s response to the jury’s question, and the fact that the jury reached its verdicts very shortly after it received the court’s response.
It follows that the 10-year term imposed on Miguel for his gang enhancement on count 2 must therefore be stricken. (§ 12022.53, subd. (e)(2).) The true findings on Miguel’s section 12022.53, subdivisions (b) and (c) enhancements on count 2 must not be stricken, however. (§ 12022.53, subd. (e)(1).)
B. Substantial Evidence Supports the True Findings on the Gang Enhancements
Miguel next contends that insufficient evidence supports the “primary activities” element of the gang enhancements the jury found true on each count. (§ 186.22, subd. (f).) We reject this claim.
The applicable standard of review is well settled. We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which the jury could have found the elements of the gang enhancement allegations true beyond a reasonable doubt. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484, citing People v. Johnson (1980) 26 Cal.3d 557, 576.) The applicable law is also well settled. Any felony committed for the benefit of a “criminal street gang” is subject to enhanced punishment as provided in section 186.22, subdivision (b). A “criminal street gang” is defined as “any ongoing organization, association, or group . . . having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e)” of the statute. (§ 186.22, subd. (f), italics added.)
Statutorily enumerated criminal acts committed either prior to or at the time of the charged offenses may be used to establish the primary activities element, provided these criminal acts are one of the group’s “chief” or “principal” occupations. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) The “occasional commission” of one or more of the enumerated criminal acts will not support the enhancement. (Ibid.) “Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony . . .” that the gang was primarily engaged in one of the statutorily enumerated offenses. (Id. at p. 324.)
1. Analysis
As pertinent, the jury was instructed that, to find the gang enhancement allegations true, it had to find that the NHL had, “as one or more of its primary activities, the commission of assault with a deadly weapon and unlawfully taking or driving a vehicle,” and that, “[i]n order to qualify as a primary activity, the crime must be one of the group’s chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the [gang].” (Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 1401.) These two crimes are among the statutorily enumerated crimes listed in section 186.22, subdivision (e). (§ 186.22, subds. (e)(1) & (e)(25).)
Miguel argues that Green’s expert gang testimony was insufficient to support the primary activities element, because Green did not specifically state that either assault with a deadly weapon or unlawful vehicle taking were primary activities of the NHL. We reject this claim, because the evidence as a whole is sufficient to support the primary activities element.
Green’s testimony, together with court records that were admitted into evidence, showed that Johnny Arias, a member of the NHL, had been convicted of committing one count of assault with a deadly weapon, and that he committed that offense on June 5, 2000. The evidence also showed that Louis Alarcon, another NHL member, had twice been convicted of the unauthorized use of a vehicle; he committed the first offense on June 9, 1999, and the second on March 22, 2000. This part of Green’s testimony was ostensibly offered to establish the “pattern of criminal gang activity” element of the gang allegations, which is distinct from the “primary activities” element. (§ 186.22, subd. (f).) And as Miguel points out, Green did not specifically state that either assault with a deadly weapon or unlawful vehicle taking were primary activities of the NHL.
But Green did testify that the NHL’s primary activities included homicide, attempted homicide, grand theft auto, narcotics sales, and other crimes. Moreover, the evidence showed that defendants, together with fellow NHL gang member Rudy Leyva, committed assault with a deadly weapon in connection with the shooting on May 20, 2003, and that their fellow NHL gang member Johnny Arias, committed the same crime, assault with a deadly weapon, on June 5, 2000. And, as noted, court records showed that NHL member Louis Alcarcon had twice committed the crime of unlawful vehicle taking, once on June 9, 1999, and again on March 22, 2000.
Thus, Green’s testimony, in combination with the other evidence in the case, was sufficient to support the primary activities element of the gang enhancements. Indeed, the timing and frequency of the NHL members’ commission of the crimes of assault with a deadly weapon and unlawful vehicle taking showed that NHL members had consistently and repeatedly committed these crimes. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224-1225 [commission of two felony assaults and one attempted murder over less than three-month period sufficient to support primary activities element]; cf. People v. Perez (2004) 118 Cal.App.4th 151, 160 [two shootings over one-week period and a beating six years earlier insufficient to prove gang members consistently and repeatedly committed such crimes].)
C. The Trial Court Properly Refused to Stay Defendants’ Sentences on Count 3
Both defendants were sentenced to consecutive eight-month terms on count 3, plus three years for the gang enhancement on count 3. Miguel claims these terms should have been stayed under section 654, because his negligent discharge of the firearm in count 2 was “merely incidental” to the murder and attempted murder offenses in counts 1 and 2. We reject this claim.
Section 654 provides: “An act or omission that is made punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . .”
1. Section 654
“Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) “The purpose of section 654 is to prevent multiple punishment for a single act or omission [or indivisible course of conduct], even though that act or omission [or indivisible course of conduct] violates more than one statute and thus constitutes more than one crime. . . .” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135; People v. Harrison (1989) 48 Cal.3d 321, 335.)
Section 654 is intended to ensure that a defendant’s punishment is “commensurate with his culpability.” (People v. Perez (1979) 23 Cal.3d 545, 551.) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (People v. Harrison, supra, 48 Cal.3d at p. 335.) If the defendant’s crimes “were merely incidental to, or were the means of accomplishing or facilitating one objective, [the] defendant may be found to have harbored a single intent and therefore may be punished only once.” (Ibid., citing Neal v. State of California (1960) 55 Cal.2d 11, 19.) “The proper remedy for failing to apply section 654 is to stay the execution of the sentence imposed for the lesser offense . . . .” (People v. Galvan (1986) 187 Cal.App.3d 1205, 1219.)
2. Analysis
Miguel argues that, in view of the circumstances of the shooting, it is clear that his act of discharging the firearm in a grossly negligent manner was “merely incidental” to his primary objective of shooting Rodriguez and attempting to shoot Sandoval. Thus, he argues, his consecutive terms on count 3 should have been stayed.
The People argue, however, and we agree, that Miguel was properly sentenced to consecutive terms on count 3 based on the multiple-victim exception to section 654. Indeed, Miguel’s act of discharging the firearm in a grossly negligent manner, though directed at Rodriguez and Sandoval, risked serious injury and death to other persons in the vicinity of the shooting, including the occupant of the residence in which one of the bullets Miguel fired was found lodged in the wall.
The California Supreme Court has “long held that ‘the limitations of section 654 do not apply to crimes of violence against multiple victims.’” (People v. Oates (2004) 32 Cal.4th 1048, 1063, quoting People v. King (1993) 5 Cal.4th 59, 78.) “The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. . . .” (Neal v. State of California, supra, 55 Cal.2d at pp. 20-21, italics added.)
The multiple-victim exception to section 654 was applied to a defendant’s negligent discharge conviction in People v. Higareda (1994) 24 Cal.App.4th 1399. There, the defendant robbed two victims and fired a gun in the direction of the victims’ car to hinder their pursuit of him. (Id. at p. 1404.) In addition to the two robbery victims, another passenger was riding in the car. The defendant claimed that section 654 barred separate punishment for his negligent discharge conviction, apart from the punishment he received for his two robbery convictions, because the shooting and robberies were part of an indivisible course of conduct. The court disagreed, citing the multiple-victim exception to section 654. (People v. Higareda, supra, at p. 1413.)
Here, too, the multiple-victim exception applies. Miguel’s act of discharging the firearm in a grossly negligent manner risked serious injury and death to persons other than Rodriguez and Sandoval, the intended victims of the shooting. These other persons included the occupant of the residence in which one of the bullets Miguel fired was found lodged in the wall. It is immaterial that neither defendant fired directly at the residence or intended to hit the residence. Accordingly, both defendants were properly sentenced to consecutive terms on count 3.
D. The Trial Court Properly Imposed and Then Stayed Terms on Each Defendant’s Lesser-term Section 12022.53 Firearm Enhancements
Both defendants were sentenced to 25 years to life for their section 12022.53, subdivision (d) enhancements on count 1, and to 20 years for their section 12022.53, subdivision (c) enhancements on count 2. The court imposed but stayed additional 10- and 20-year terms, respectively, on each defendant’s section 12022.53, subdivisions (b) and (c) enhancements on count 1, and an additional 10-year term on their section 12022.53, subdivision (b) enhancements on count 2.
Miguel claims the trial court should have stricken rather than stayed the additional terms it imposed on his lesser-term section 12022.53, subdivisions (b) and (c) enhancements in count 1, and on his lesser-term section 12022.53, subdivision (b) enhancement in count 2. This claim also applies to Silvester, because he received the same stayed terms on counts 1 and 2.
Miguel’s claim is based on section 12022.53, subdivision (f), which provides: “Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.” (§ 12022.53, subd. (f).) Defendants argue that, under this provision, their lesser-term section 12022.53, subdivisions (b) and (c) enhancements were erroneously imposed and stayed, and should have instead been stricken.
The court in People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte) considered and rejected the same argument. The court reasoned: “If viewed in isolation, the language of section 12022.53, subdivision (f) would dictate that the trial court in this case could only impose the 25-year-to-life enhancement [under section 12022.53, subdivision (d)] and must strike the findings underlying the 10-year (§ 12022.53, subd. (b) [personal firearm use]) and 20-year (§ 12022.53, subd. (c) [intentional and personal discharge of firearm]) enhancements.” (Id. at p. 713.)
But the court further observed that such an interpretation of section 12022.53, subdivision (f) “would conflict with subdivision (h) of that section, which provides: ‘Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.’” (Bracamonte, supra, 106 Cal.App.4th at p. 713.) Accordingly, the court held that the defendant’s section 12022.53 subdivisions (b) and (c) enhancements were properly imposed and stayed and were not required to be stricken, even though greater-term section 12022.53 subdivision (d) enhancements were also imposed. (Bracamonte, supra, at p. 713; see also People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061-1062 [decision by Second District, Division Four, reaffirming its decision in Bracamonte].)
Defendants argue that Bracamonte is incorrect on this point. They emphasize that subdivision (f) of section 12022.53 expressly states that “only the greatest enhancement” may be “imposed” under section 12022.53. And they harmonize subdivisions (f) and (h) by reasoning that subdivision (h) does not refer to any provision of section 12022.53, but only to section 1385 and “other” provisions of law. They also read subdivision (h) as prohibiting the court from exercising its discretion to strike an allegation or finding under section 12022.53, but not as prohibiting the court from properly sentencing the defendant under the statute. They therefore conclude that a lesser-term enhancement under section 12022.53 must never be imposed when a greater-term enhancement is imposed under the statute. And when a lesser-term enhancement is imposed, it must be stricken.
The same argument defendants raise here was recently considered and rejected by the state Supreme Court in People v. Gonzalez, supra, 43 Cal.4th 1118. The court held that the terms “imposed” and “impose,” as used in section 12022.53, subdivision (f), mean to “impose and then execute” rather than to “impose and then stay.” We are bound by this decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we conclude that defendants’ sentences on their section 12022.53 subdivisions (b) and (c) enhancements in counts 1 and 2 were properly imposed and then stayed.
E. Silvester’s Claim of Instructional Error is Without Merit
Silvester claims that the trial court’s instructions on aiding and abetting and on the natural and probable consequences doctrine were “legally inadequate” and deprived him of a fair trial. (People v. Guiton (1993) 4 Cal.4th 1116, 1128.) We reject this claim. As we explain, the instructions on aiding and abetting and on the natural and probable consequences doctrine (CALCRIM Nos. 400, 401, & 403) correctly stated the law; however, one alternative theory of liability suggested in CALCRIM No. 403—that Silvester aided and abetted Miguel in the commission of the initial assault upon Rodriguez inside the restaurant, and that the charged crimes were natural and probable consequences of the assault—was unsupported by the evidence and was therefore erroneously given. Still, the error is harmless because it is not reasonably probable that the jury relied on this factually unsupported theory in convicting Silvester of any of the charged crimes. (People v. Guiton, supra, at pp. 1129-1130.)
1. Relevant Background
The jury was given CALCRIM No. 400 (Aiding and Abetting: General Principles) and modified versions of CALCRIM Nos. 401 (Aiding and Abetting: Intended Crimes), and 403 (Natural and Probable Consequences (Only Non-target Offense Charged)). These instructions told the jury it could convict Silvester of the charged crimes based on four alternative legal theories: (1) he directly perpetrated the charged crimes (CALCRIM No. 400); (2) he aided and abetted Miguel in the commission of the charged crimes (CALCRIM Nos. 400 & 401); (3) he directly perpetrated the assault upon Rodriguez inside the restaurant, and the charged crimes were natural and probable consequences of the assault (CALCRIM No. 403, first alternative); or (4) he aided and abetted Miguel in the commission of the assault of Rodriguez inside the restaurant, and the charged crimes were natural and probable consequences of the assault (CALCRIM No. 403, second alternative).
CALCRIM No. 400 told the jury: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. Two, he or she may have aided and abetted someone else, who committed the crime. In these instructions, I will call that other person the ‘perpetrator.’ A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commission of the first crime.”
In relevant part, CALCRIM No. 401 told the jury: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed that crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. . . .”
CALCRIM No. 403 told the jury: “Before you may decide whether the defendant is guilty of murder, attempted murder, and negligent discharge of a firearm, you must decide whether he/she is guilty of assault. [¶] To prove that the defendant is guilty of murder, attempted murder and negligent discharge of a firearm, the People must prove that: [¶] 1. The defendant is guilty of assault; [¶] 2. During the commission of the assault, the crime of murder, attempted murder and negligent discharge of a firearm were committed; [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of the murder, attempted murder [and] negligent discharge of a firearm were a natural and probable consequence of the commission of the assault. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the murder, attempted murder [and] negligent discharge of a firearm were committed for a reason independent of the common plan to commit the assault, then the commission of murder, attempted murder [and] negligent discharge of a firearm were not a natural and probable consequence of assault. [¶] To decide whether [the crimes] of murder, attempted murder and negligent discharge of a firearm were committed, please refer to the separate instructions that I will give you on those crimes. [¶] The People are alleging that the defendant originally intended to aid and abet an assault. The defendant is guilty of murder, attempted murder and negligent discharge of a firearm if you decide that the defendant aided and abetted one of these crimes and that murder, attempted murder and negligent discharge of a firearm were the natural and probable result of one of these crimes.” (Second italics added.)
At trial, the prosecution claimed that Silvester directly aided and abetted Miguel’s commission of the charged crimes, including the murder of Rodriguez (count 1), the attempted murder of Sandoval (count 2), and Miguel’s grossly negligent discharge of a firearm (count 3). The prosecution also claimed that Silvester directly perpetrated an uncharged assault upon Rodriguez inside the restaurant, and that the charged crimes that occurred outside the restaurant were natural and probable consequences of that initial assault on Rodriguez. The prosecution did not claim, nor did the evidence indicate, that Miguel perpetrated the assault on Rodriguez inside the restaurant. Nevertheless, this factual scenario was suggested, albeit obliquely, in the language of CALCRIM No. 403 when read together with CALCRIM Nos. 400 and 401.
Although CALCRIM No. 403 did not expressly describe the alternative factual scenarios described above, namely, that either Silvester or Miguel directly perpetrated the assault on Rodriguez inside the restaurant and the other defendant aided and abetted the direct perpetrator in the commission of the assault, it reasonably suggested both scenarios to the jury. By its terms, the instruction applied to either or both defendants, and stated, “The People are alleging that defendant originally intended to aid and abet an assault.” (Italics added.)
2. Applicable Law and Analysis
Silvester claims that the second theory of liability suggested in CALCRIM No. 403 was “legally inadequate” and therefore erroneous. (People v. Guiton, supra, 4 Cal.4th at p. 1128.) Specifically, he claims that CALCRIM No. 403 incorrectly stated the law, because it allowed the jury to convict him as an aider and abettor to the charged crimes if it found he aided and abetted Miguel’s initial assault on Rodriguez inside the restaurant. And, he points out, there was no evidence that Miguel perpetrated that initial assault.
Silvester relies on People v. Perez (2005) 35 Cal.4th 1219, 1225, where the court observed, “If the defendant himself commits the offense, he is guilty as a direct perpetrator. If he assists another, he is guilty as an aider and abettor. It follows, therefore, that for a defendant to be found guilty under an aiding and abetting theory, someone other than the defendant must be proven to have attempted or committed a crime; i.e., absent proof of a predicate offense, conviction on an aiding and abetting theory cannot be sustained.” (Italics added.)
We disagree that CALCRIM No. 403 described or suggested a legally inadequate theory of liability or that it erroneously stated the law. A defendant is criminally liable (1) for crimes that are the natural and probable consequences of any target crime he directly perpetrates, and (2) for crimes that are the natural and probable consequences of any target or predicate crime he aids and abets. (People v. Prettyman (1996) 14 Cal.4th 248, 262, 267 [discussing principles of aiding and abetting and the application of the natural and probable consequences doctrine to aiders and abettors].)
Silvester’s true quarrel with CALCRIM No. 403 is that it stated or suggested a theory of liability that, though legally correct, is unsupported by the evidence. (People v. Guiton, supra, 4 Cal.4th at pp. 1121-1131 [distinguishing legally inadequate and factually inadequate theories of liability].) As Silvester points out, the prosecutor did not argue, nor did the evidence show, that Silvester aided and abetted Miguel in the commission of the initial assault on Rodriguez inside the restaurant. Rather, the evidence showed that Silvester directly perpetrated the assault, and Miguel was either on his way to the restaurant or was outside the restaurant when the initial assault occurred. Thus here, there was insufficient evidence to support Silvester’s conviction of the charged crimes based on the theory that he aided and abetted Miguel’s commission of the assault.
“It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.” (People v. Guiton, supra, 4 Cal.4th at p. 1129.) The error is one of state law subject to the Watson test. (People v. Watson (1956) 46 Cal.2d, 818, 836.) Under Watson, the error is prejudicial and reversal is required if the record affirmatively demonstrates a reasonable probability that the defendant would have realized a more favorable result had the error not been made. (Ibid.) Stated another way, the judgment must be affirmed unless our review of the entire record demonstrates a reasonable probability that the jury in fact found the defendant guilty based solely on the factually unsupported theory. (People v. Guiton, supra, at p. 1130.) The entire record includes the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. (Ibid.)
Based on the entire record, we conclude it is not reasonably probable that, in finding Silvester guilty of the charged crimes, the jury relied upon the factually unsupported theory that Silvester aided and abetted Miguel in the commission of the assault on Rodriguez inside the restaurant, and the charged crimes were natural and probable consequences of that assault. (CALCRIM No. 403, second alternative theory.) First and as discussed, the evidence did not show that Silvester aided and abetted Miguel’s commission of the initial assault on Rodriguez; the evidence showed only that Silvester directly perpetrated the initial assault.
Furthermore, the prosecutor did not urge the jury to convict Silvester on the basis of the factually unsupported theory. Instead, he first urged the jury to convict Silvester on the grounds he aided and abetted Miguel’s commission or direct perpetration of the charged crimes. (CALCRIM No. 401.) He told the jury that Silvester was guilty of the murder as an aider and abettor because, although Miguel was the person who shot and killed Rodriguez, Silvester knew in advance that Miguel intended to commit the murder and Silvester “instigate[d]” that crime by first “hitting up” Rodriguez and then assaulting Rodriguez inside the restaurant.
In addition and alternatively, the prosecutor urged the jury to convict Silvester on the grounds that he, Silvester, directly perpetrated the initial assault on Rodriguez and the charged crimes were natural and probable consequences of the assault. (CALCRIM No. 403, first alternative theory.) He argued that Silvester was “also guilty” of the murder based on the natural and probable consequences doctrine, because the death of Rodriguez was “certainly” a natural and probable consequence of Silvester’s act of “hitting up” and assaulting Rodriguez inside the restaurant. The prosecutor said, “I am showing you this to show that he [Silvester] is guilty for both reasons.”
Then, referring to Silvester, the prosecutor said, “The People allege the defendant [Silvester] originally intended to aid and abet the commission of assault. That’s what this case started out as, an assault, a fight. And the witnesses told you that the guy with no shirt [Silvester] turned around and socked the guy with the lips tattoo [Rodriguez] in the face. That’s an assault. A battery.” The prosecutor continued: “Then what you have to decide is, was what happened in this case a natural and probable consequence of that initial turning around and socking. You must decide if an assault occurred. There is evidence to show you that it did. Then you must decide if the murder of Aldo Rodriguez, the attempted murder of Albert Sandoval, and the negligent discharge of the firearm is the natural and probable consequence of the action of Silvester. Is he guilty of assault. . . . [¶] . . . And under all these circumstances, would a reasonable person in [Silvester’s] position have known that the resulting three crimes were a natural and probable consequence of the commission of the assault. Again that’s the jury instruction [Nos.] 400 through 403.”
The prosecutor also referred the jury to the evidence that defendants’ house had been “shot up” by members of the 18th Street gang and Green’s testimony that, in the gang culture, appropriate revenge for that type of shooting is another shooting. He also noted that Miguel believed the 18th Street gang had put a “green light” on him, meaning he was to be “taken out” or shot and killed if a member of the 18th Street gang saw him. He concluded his argument by noting that “aiding and abetting is a theory in and of itself to show [that] both of these defendants . . . were in this together . . . .” In sum, based on the entire record, including the evidence and the prosecutor’s argument, it is not reasonably probable that the jury relied on the factually unsupported theory of liability, suggested in CALCRIM No. 403, in convicting Silvester of any of the charged crimes.
Silvester suggests, however, that the factually unsupported theory was prejudicial because the jury “did not properly understand the aiding and abetting instructions.” Not so. The only question the jury had concerning the aiding and abetting instructions was whether it could rely on aiding and abetting principles in determining the truth of the section 12022.53, subdivision (c) allegation (the first allegation) against Miguel in count 2. This question had nothing to do with Silvester’s liability, whether direct or vicarious, for any of the charged crimes.
In his reply brief, Silvester argues that the factually unsupported theory described in CALCRIM No. 403 erroneously allowed the jury to convict him of the charged crimes without finding he had the requisite mental state of an aider and abettor of the charged crimes, that is, without finding he knew Miguel intended to commit the charged crimes and that he intended to aid and abet and did in fact aid and abet Miguel in the commission of those crimes. (People v. Prettyman, supra, 14 Cal.4th at p. 262.) Again, we disagree.
For the reasons explained, it is not reasonably probable that the jury relied on the factually unsupported alternative theory described in CALCRIM No. 403 in convicting Silvester of any of the charged crimes. Instead, the jury must have relied on one or more of the other theories described in the instructions. That is, they must have found Silvester guilty of the charged crimes because they believed he either (1) directly perpetrated the crimes (CALCRIM No. 400); (2) aided and abetted Miguel in the commission of the crimes (CALCRIM Nos. 400 & 401); or (3) directly perpetrated the assault on Rodriguez inside the restaurant, and the charged crimes were natural and probable consequences of the assault (CALCRIM No. 403, first alternative).
Each of these alternative theories of liability was both legally correct and factually supported by the evidence, and the jury could have relied on any one or any combination of them in finding Silvester guilty of the charged crimes. (See, generally, People v. Jenkins (2000) 22 Cal.4th 900, 1024-1026 [juror unanimity not required on legal theory of conviction].) Furthermore, only the aiding and abetting theory described in CALCRIM Nos. 400 and 401 required the jury to find that Silvester had the mental state required of an aider and abettor. And, based on the entire record, there is no reason to believe that, in the event any of the jurors relied on this theory, they failed to find Silvester had that mental state. (CALCRIM No. 401 [describing mental state required of aider and abettor].)
Nor did the instructions confuse Silvester’s liability as a direct perpetrator with his vicarious liability as an aider and abettor or, as Silvester argues, “mix . . . theories of culpability as applied to a direct perpetrator with those applicable to the culpability of an aider and abettor.” The instructions correctly stated the law, and the lack of evidentiary support for the second alternative theory described in CALCRIM No. 403 did not affect the legal sufficiency of or the evidentiary support for the three other alternative theories of liability.
Finally, Silvester suggests the instructions erroneously allowed the jury to convict him of the charged crimes if it found he directly perpetrated the assault on Rodriguez inside the restaurant, and Miguel then “came upon the scene during the ensuing fight and shot Rodriguez and tried to shoot Sandoval.” Again, we find no error. In order to convict Silvester of the charged crimes based on this factual scenario, the jury was properly instructed that it had to find the charged crimes were natural and probable consequences of Silvester’s original, direct assault upon Rodriguez inside the restaurant. (CALCRIM No. 403, first alternative.) Again, this theory was legally correct and factually supported, and the jury was properly instructed on its requirements.
F. Corrections to Abstracts of Judgment
The People point out two errors in the abstract of judgment for each defendant and request that this court correct them. Defendants do not oppose the corrections, and we agree that the abstracts must be corrected as the People request. (People v. Boyde (1988) 46 Cal.3d 212, 256 [abstract of judgment must conform to oral pronouncement of judgment]; People v. Mitchell (2001) 26 Cal.4th 181, 185 [court has inherent authority to correct errors in court records].)
As the People first point out, the abstracts show that defendants were sentenced to determinate terms of 25 years for their section 12022.53, subdivision (d) enhancements on count 1, when in fact defendants were sentenced to indeterminate terms of 25 years to life for these enhancements. (§ 12022.53, subd. (d).)
In addition, the abstracts do not reflect the degree of defendants’ attempted murder convictions in count 2. The jury was not requested to determine and did not determine the degree of these crimes; accordingly, they are deemed to be in the second degree. (§ 1157 [degree of crime deemed to be of the lesser degree in absence of determination by trier of fact].) The trial court recognized this when it sentenced defendants to seven-year terms on count 2 rather than life terms which are required for first degree attempted murder convictions. (§ 664, subd. (a).)
V. DISPOSITION
The 10-year term imposed on Miguel’s section 186.22, subdivision (b) gang enhancement on count 2 is hereby stricken. The matter is remanded to the trial court with directions to revise defendants’ abstracts of judgment to reflect this change.
The trial court is also directed to correct each defendant’s abstract of judgment to reflect that (1) each defendant was sentenced to an indeterminate term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancements on count 1, and (2) each defendant’s attempted murder conviction in count 2 is of the second degree, not the first degree. The trial court is further directed to forward defendants’ revised and corrected abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
We concur McKinste, Acting P.J., Richli, J.
On count 2, Miguel was sentenced to a consecutive term of seven years, plus 20 years for the section 12022.53, subdivision (c) firearm enhancement, plus 10 years for the section 186.22, subdivision (b) gang enhancement, for a total of 37 years determinate. For the reasons explained below, we strike the 10-year term that was imposed on Miguel’s gang enhancement on count 2.
On count 3, Miguel was sentenced to a consecutive eight-month term (one-third the middle term), plus three years for the gang enhancement, for a total of three years eight months, determinate.
On count 2, Silvester was sentenced to a consecutive term of seven years, plus 20 years for the “principal” section 12022.53, subdivision (c) firearm enhancement. Two additional 10-year terms were imposed but stayed on the section 12022.53, subdivision (b) firearm enhancement and the gang enhancement.
On count 3, Silvester was sentenced to a consecutive eight-month term (one-third the middle term), plus three years for the gang enhancement.