Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County, No. FVA026015, Michael A. Knish, Temporary Judge (Pursuant to Cal. Const. art. VI, § 21).
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Frank Ramirez, Jr., of three counts of attempted murder (Pen. Code, §§ 187, 664). Defendant appeals his conviction as to two of the counts, claiming the court prejudicially erred by instructing the jury with “kill zone” phraseology included in the 2005 version of CALCRIM No. 600 (the attempted murder jury instruction). We find no error. We therefore affirm the judgment as modified. (See People v. Bragg (2008) 161 Cal.App.4th 1385, 1395-1396 (Bragg); People v. Campos (2007) 156 Cal.App.4th 1228, 1243-1244 (Campos).)
All statutory references are to the Penal Code.
Defendant also raises a series of issues pertaining to his sentence as reflected in the abstract of judgment. The People concede error with regard to each of these issues. We will order the correction of these errors in the disposition below.
FACTS
On the morning of January 8, 2006, three brothers were present at their home in Rialto, California: Derrick Jones (19 years old at the time), Andre Jones (15 years old at the time), and Jesse Jones (14 years old at the time). Defendant was convicted of attempting to murder each of the three brothers based on defendant firing a gun in their direction and hitting two of them.
The incident at issue apparently had roots in a longstanding animosity between defendant’s brother, Eddie Ramirez, and Derrick Jones. In 2002, defendant and Eddie were involved in an altercation with Derrick at their high school. In that incident, defendant broke Derrick’s jaw and Eddie kicked Derrick while he was on the ground. Defendant told police at the time he hit Derrick because he thought Eddie was being threatened by Derrick and another individual. According to Eddie, Derrick verbally confronted or “mad dogged” him on numerous occasions between the 2002 fight and the January 8, 2006 incident.
This phrase refers to staring in a menacing manner.
Eddie and a female passenger drove in front of the Jones’s house at about 10:30 a.m. on January 8, 2006. Derrick and Eddie spoke to one another. According to Derrick’s testimony, he asked Eddie what he was doing there and Eddie responded, “‘I’ll be back, and I’m not going to miss this time.’” Eddie testified he had driven to Derrick’s house to engage in a fistfight, but drove away after he saw both of Derrick’s brothers were present. Eddie claimed he picked up defendant to back him up in case someone tried to help Derrick in a fight.
Five minutes later, the same car returned with Eddie, the female passenger, and defendant in the back seat. Derrick and Jesse walked outside; Andre stood in the doorway and looked outside. Derrick, on his porch, told the individuals in the car to go away.
Defendant opened the car door, got out of the car, and started shooting. A bullet hit Derrick’s thigh and another hit Jesse’s kneecap. Andre testified defendant fired eight or nine shots; he saw defendant point the gun toward the front door and also saw two or three bullets hit a wall inside the house.
Defendant testified he only started shooting when he saw Derrick reach for a gun in his waistband. Defendant denied trying to kill anyone.
DISCUSSION
“Kill Zone” Instruction
A person who uses indiscriminate means (such as bombing a public place or firing an automatic weapon into a crowd) to kill or attempt to kill one or more persons may be held liable for attempting to kill all persons in the “‘kill zone’” on a concurrent intent theory. (People v. Bland (2002) 28 Cal.4th 313, 329-330.) “‘The intent is concurrent... when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.’” (Id. at p. 329.)
Defendant (who did not object to the instruction at trial) asserts error with regard to the “kill zone” instruction provided in this case. The court instructed the jury with the 2005 version of CALCRIM No. 600. In relevant part, the instruction stated: “A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or ‘kill zone.’ In order to convict the defendant of the attempted murder of Jess[e] Jones and/or Andre Jones the People must prove that the defendant not only intended to kill Der[r]ick Jones but also either intended to kill Jess[e] Jones and/or Andre Jones, or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Jess[e] Jones or Andre Jones or intended to kill Der[r]ick Jones by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Jess[e] Jones and/or Andre Jones.” (Italics added.)
Defendant does not contest the applicability of the “kill zone” theory to the factual circumstances here, but claims the instruction as given was ambiguous and misleading. Several courts have criticized the phrasing of the italicized portions of this version of CALCRIM No. 600 as potentially ambiguous. (See People v. Stone (2009) 46 Cal.4th 131, 138, fn. 3 (Stone); Campos, supra, 156 Cal.App.4th at pp. 1241-1243.)
The current version of CALCRIM No. 600 remedies potential ambiguities in the prior language by replacing “‘anyone’” with “‘everyone’” and “‘harming’” with “‘killing.’” (Stone, supra, 46 Cal.4th at p. 138, fn. 3 [“a jury hearing about the intent to kill anyone within the kill zone would probably interpret it as meaning the intent to kill any person who happens to be in the kill zone, i.e., everyone in the kill zone. But any possible ambiguity can easily be eliminated by changing the word ‘anyone’ to ‘everyone.’ [¶]... Because the intent required for attempted murder is to kill rather than merely harm, it would be better for the instruction to use the word ‘kill’ consistently rather than the word ‘harm’”].)
The actual holding in Stone was that “a person who shoots into a group of people, intending to kill one of the group, but not knowing or caring which one, [can] be convicted of attempted murder.” (Stone, supra, 46 Cal.4th at p. 134.) In the course of reaching this conclusion, the Stone court found the kill zone instruction should not have been provided to the jury because it was inapplicable to the case as there was no targeted victim. (Id. at p. 138.)
In general, a “defendant may not complain on appeal that [an] instruction was ambiguous or incomplete” when “defendant did not ask the trial court to clarify or amplify it.” (People v. Mayfield (1997) 14 Cal.4th 668, 778-779.) Even assuming defendant has not forfeited this issue, an appellate court does not find instructional error merely because an instruction’s imperfection raises a theoretical possibility of a jury misinterpreting its meaning. Instead, “[w]e evaluate this challenge to CALCRIM No. 600 by determining whether there is a reasonable likelihood the jury misconstrued or misapplied its words.” (Campos, supra, 156 Cal.App.4th at p. 1243; see also Bragg, supra, 161 Cal.App.4th at pp. 1395-1396.)
In Campos, the court affirmed two murder convictions and one attempted murder conviction with regard to a defendant shooting at a car with three individuals inside. (Campos, supra, 156 Cal.App.4th at pp. 1231-1233.) The instruction given pursuant to CALCRIM No. 600 was substantially similar to that given in the instant case. (Id. at p. 1241.) While noting the potential ambiguity inherent in the old version of CALCRIM No. 600, the court found no error because: (1) a “‘kill zone’” instruction is superfluous (given the general instructions on attempted murder provided in the remainder of CALCRIM No. 600); and (2) the use of the word “‘anyone’” is not confusing to a jury in the context of the rest of the instruction. (Campos, at p. 1243.)
In Bragg, the court found no error in the instruction of the jury with the prior version of CALCRIM No. 600 as well as additional explication quoted from People v. Bland, supra, 28 Cal.4th 313. (Bragg, supra, 161 Cal.App.4th at pp. 1394-1397.) “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 defendant had to have intended to kill the victims. Given the totality of the instructions, there was no error.” (Id. at p. 1396.)
Like the Campos and Bragg courts, we conclude the court did not err by giving the “kill zone” instruction quoted above. The current version of CALCRIM No. 600 is a better form instruction than the previous version. But the prior version’s imperfections do not amount to legal error.
Sentencing Errors
As noted above, the jury found defendant guilty of three counts of attempted murder, each count committed willfully, deliberately, and with premeditation. (§§ 187, 664.) As to two counts of attempted murder, the jury found true that defendant personally and intentionally discharged a firearm, which proximately caused great bodily injury (to Derrick and Jesse respectively). (§ 12022.53, subd. (d).) As to all three counts of attempted murder, the jury found true that defendant: personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); and, as a principal in the offense, was armed with a firearm (§ 12022, subd. (a)(1)). The jury also found defendant guilty of three counts of assault with a firearm (§ 245, subd. (a)) as to each of the three victims and found sentencing enhancements on these charges to be true.
Finally, the jury found defendant guilty of shooting at an inhabited dwelling (§ 246). The jury found true six separate enhancement allegations pertaining to this count: (1) personally and intentionally discharging a firearm causing great bodily injury to Derrick (§ 12022.53, subd. (d)); (2) personally and intentionally discharging a firearm causing great bodily injury to Jesse (§ 12022.53, subd. (d)); (3) personally and intentionally discharging a firearm (§ 12022.53, subd. (c)); (4) personally inflicting great bodily injury on Derrick (§ 12022.7, subd. (a)); (5) personally inflicting great bodily injury on Jesse (§ 12022.7, subd. (a)); and (6) as a principal in the offense, defendant was armed with a firearm (§ 12022, subd. (a)(1)).
The court sentenced defendant on the principal attempted murder, count 1, as follows: seven years to life with regard to count 1, attempted murder; 25 years to life for the section 12022.53, subdivision (d) enhancement of count 1; and remainder of count 1 enhancements imposed but stayed. Thus, defendant’s sentence totaled 32 years to life on count 1. The court sentenced defendant to concurrent sentences on counts 2 and 3 (the other two attempted murder convictions and the accompanying enhancements). The court imposed sentences on the assault convictions and enhancements (counts 4 through 6) but stayed each sentence pursuant to section 654. The court imposed the aggravated sentence of seven years on count 7 (shooting at an inhabited dwelling). The court then imposed: a 25 years to life enhancement for the section 12022.53, subdivision (d) enhancement; a one-year sentence for the section 12022, subdivision (a)(1) enhancement; a 20-year sentence for the section 12022.53, subdivision (c) enhancement; and a three year sentence for each section 12022.7 enhancement. The court stayed execution of sentence on the section 12022.53, subdivision (c) enhancement, and the section 12022, subdivision (a)(1) enhancement. The court did not explicitly stay the section 12022.7 great bodily injury enhancements. The court ran the sentence on count 7 concurrently to count 1. The court stated the total commitment was for 32 years to life.
The court mistakenly cited section 12022.53, subdivision (b), at the sentencing hearing. But the correct enhancement, as found by the jury, was section 12022.53, subdivision (d), which provides for an enhancement of 25 years to life.
The parties identify four sentencing errors committed by the trial court. The parties agree we should correct each of these errors.
First, the court should have stayed execution of sentence on two section 12022.7, subdivision (a) great bodily injury enhancements imposed on count 7, shooting at an inhabited dwelling (§ 246). Section 12022.53, subdivision (f), provides, in relevant part: “Only one additional term of imprisonment under this section shall be imposed per person for each crime.... An enhancement for great bodily injury as defined in Section 12022.7... shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).” Because defendant’s sentence was enhanced with an additional 25 years to life, pursuant to section 12022.53, subdivision (d), the court should have stayed the section 12022.7 great bodily injury enhancements. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130 [“section 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining [firearm enhancements]... that were found true for the same crime must be imposed and then stayed”].)
Second, the court should have awarded 1, 394 days of presentence credits rather than 1, 213 days of presentence credits. The court found defendant was not entitled to any conduct credits. But pursuant to section 2933.1, defendant (convicted of attempted murder, not murder) was entitled to conduct credits at the rate of 15 percent of time served. The People agree with defendant that he was entitled to an additional 181 days of conduct credit.
Third, the abstract of judgment should not have included any references to section 12022.53, subdivision (b) enhancements for counts 1, 2, and 3 (the attempted murder charges), as such enhancements were not charged or found by the jury. It appears a simple clerical error resulted in the inclusion of these enhancements (which were purportedly stayed) on the abstract of judgment.
Fourth, the abstract of judgment should reflect that the first listed enhancement for count 4 (assault with a deadly weapon) is a section 12022, subdivision (a)(1) enhancement rather than a section 12022.5, subdivision (a) enhancement. Again, this error appears to be a clerical glitch; the other counts of assault with a deadly weapon accurately state the enhancements found by the jury.
DISPOSITION
Defendant’s sentence is modified as set forth above and the trial court is directed to prepare a corrected abstract of judgment: (1) staying execution of sentence on the two section 12022.7, subdivision (a) great bodily injury enhancements imposed on count 7, shooting at an inhabited dwelling (§ 246); (2) awarding 1, 394 days of presentence credits (rather than 1, 213 days of presentence credits); (3) deleting all references to section 12022.53, subdivision (b) enhancements for counts 1, 2, and 3, as such enhancements were not charged; and (4) changing the first listed enhancement for count 4 to a section 12022, subdivision (a)(1) enhancement rather than a section 12022.5, subdivision (a) enhancement (such that there is only one section 12022.5, subdivision (a) enhancement rather than two). The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed as modified.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.