Opinion
D058191
02-15-2012
THE PEOPLE, Plaintiff and Respondent, v. ERNEST ADAME RAMOS et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. RIF125069)
APPEALS from judgments of the Superior Court of Riverside County, Craig G. Riemer, Judge. Affirmed as corrected.
The two defendants in this case, Ernest Adame Ramos and Victor Morales, chased a minivan filled with entirely innocent members of the public, including an infant, and fired a number of gunshots at the victims' minivan. The record shows Ramos was the shooter and Morales was the driver. Both Ramos and Morales were convicted of the attempted murder of the occupants of the minivan. Ramos was also convicted of being an active participant in a criminal street gang within the meaning of section Penal Codesection 186.22, subdivision (a).
All further statutory references are to the Penal Code.
We reject Ramos's contention there was insufficient evidence he is an active participant in a criminal street gang and his related argument he could not be punished for both the attempted murders and gang participation. We also reject Ramos's contention admission of gang evidence was irrelevant and prejudicial.
We reject Morales's separate argument there was insufficient evidence to support his attempted murder convictions.
The Attorney General concedes, and we agree, the defendants' respective abstracts of judgment must be corrected to reflect the fact the jury convicted them of attempted murder rather than attempted murder in the first degree.
Thus, as corrected, we affirm the judgments of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
1. Initial Shooting
Around 2:00 a.m. on July 26, 2005, Riverside County Sheriff's Deputy Jaime Hermosillo responded to a report gunshots had been fired at an apartment complex in Rubidoux, which was then a community in unincorporated Riverside County. When Hermosillo arrived at the apartment complex, a group of bystanders, who had gathered in the complex, fled.
Rubidoux is now within the limits of the recently incorporated City of Jurupa Valley.
Hermosillo then approached a Nissan minivan which was parked just outside the apartment complex. The minivan was being driven by Ranae Ramos (Ranae); Ranae's nieces Conception Ramos (Conception), Marcia Ramos (Marcia) and April Ramos (April) were passengers in the minivan, along with April's infant son. The women reported they heard five or six gunshots and then saw a truck and a Toyota Camry speed away.
Ranae, Conception, Marcia and April are not related to defendant Ramos. We use their first names to avoid confusion.
Hermosillo unsuccessfully canvassed the apartment complex for additional information about the shooting and left the scene. After Hermosillo departed, Ranae's sister Valerie Ramos (Valerie) walked over to the passenger side of Ranae's minivan, put her head in the passenger window and began talking to the women in Ranae's minivan.
2. Chase
While Valerie was talking to the women in her sister's minivan, another vehicle approached the minivan rapidly and Ranae heard shots being fired. In response Ranae began to drive away quickly; Ranae drove away so quickly that the other women in the minivan had to pull Valerie into the van because Valerie was hanging on the outside of the minivan.
The vehicle which approached Ranae's minivan was being driven by Morales and it began pursuing Ranae, running a number of red lights and reaching speeds in excess of 70 miles an hour on surface streets. During the pursuit, Ramos, who was in the passenger seat of Morales's vehicle, fired four or five shots.
While trying to evade Morales and Ramos, Ranae saw a Riverside County sheriff's patrol car and was able to flag it down. The patrol car was being driven by Hermosillo, who took statements from Ranae and the other women in the minivan. Hermosillo alerted other law enforcement personnel area to be "on the look out" for a vehicle matching the description the women gave him.
A short time later, a California Highway Patrol officer saw a Toyota Previa minivan which was similar to the vehicle Ranae and the other passengers in her minivan had described. The patrol officer stopped the Previa and waited for assistance from Riverside County sheriff's deputies, who arrived and detained Morales and Ramos for a curbside lineup.
In separate lineups, April and Conception identified Morales as the driver and Ramos as the shooter. Both Morales's and Ramos's hands tested positive for the presence of gunshot residue. The deputies found a handgun holster in the Previa and .357 magnum handgun on the side of the road in the vicinity of the stop. The .357 handgun matched the wear marks in the holster.
The deputies also found six spent shell casings in the .357 handgun and a cleanly pierced and apparently recent bullet hole in Ranae's minivan. Later at trial, a sheriff's deputy opined that a shot from a .357 magnum handgun could penetrate a car.
3. Gang Evidence
At trial Riverside County Deputy Sherriff Santos Cortez testified as a gang expert. According to Cortez, in April 2005 Ramos admitted he was a gang member and went by the monikers "Scrappy" and "Little Mugsy." Ramos had the word "Riva" tattooed on his back which, according to Cortez, was a sign of Ramos's allegiance to a Hispanic gang in the Rubidoux area known as the West Side Riva (WSR).
Cortez testified the WSR was engaged in shootings, robberies, carjackings, assaults, murders and attempted murders. In particular, Cortez discussed criminal acts committed by three known WSR members.
While Ramos was in jail prior to trial, sheriff's deputies found a letter in another inmate's cell which identified Ramos as the "shot-caller" in his jail unit's day room. In gang parlance a "shot-caller" is a senior gang member who gives orders to other gang members.
In light of Ramos's admission he was a gang member, his tattoo and his identification as a "shot-caller" in the jail, Cortez concluded that Ramos was an active member of WSR at the time of the shooting.
4. Trial Court Proceedings
A jury convicted Ramos of attempted murder (§ 664/187; counts 1-4) and shooting at an occupied vehicle (§ 245; count 5). In addition the jury convicted Ramos of actively participating in a criminal street gang. (§ 186.22, subd. (a); count 7.) The jury found true allegations that in attempting to murder the occupants of Ranae's car, Ramos personally discharged a firearm (§ 12022.53, subd. (c)) and that in shooting at an occupied vehicle, Ramos personally used a firearm. On the People's motion the latter true finding was dismissed. After the jury returned its verdict, Ramos admitted a prior conviction for assault with a deadly weapon with force likely to produce great bodily injury. (§§ 667, subds. (c), (e)(1), and 1170.12, subd. (c)(1).)
The trial court sentenced Ramos to a total of 39 years four months. The sentence imposed included a 16-month consecutive term for his active participation in a gang.
The jury also convicted Morales of attempted murder and shooting at an occupied vehicle. (§§ 664/187 and 246.) In addition, the jury found Morales guilty of carrying a loaded firearm in a vehicle while not the registered owner of the firearm. (§ 12031, subd. (a)(2).)
The trial court sentenced Morales to a total term of 10 years in state prison.
DISCUSSION
I
Ramos's Appeal
a. Active Gang Participation
On appeal Ramos argues there is insufficient evidence in the record to support his conviction for active participation in a gang within the meaning of section 186.22, subdivision (a). Relying primarily on the fact there was no evidence Morales was a gang member, Ramos contends the record does not show he willfully promoted or assisted in felonious criminal conduct committed by other gang members. We find no such requirement in the statute.
Ramos contends that in any event section 654 requires that punishment under section 186.22, subdivision (a) be stayed. We reject this argument as well.
1. Section 186.22, Subdivision (a)
Section 186.22, subdivision (a) defines the crime of gang participation in the following manner: "(a) Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years."
"The gravamen of the substantive offense set forth in section 186.22(a) is active participation in a criminal street gang. We explained in People v. Castenada, supra, 23 Cal.4th 743, that the phrase 'actively participates' reflects the Legislature's recognition that criminal liability attaching to membership in a criminal organization must be founded on concepts of personal guilt required by due process: 'a person convicted for active membership in a criminal organization must entertain "guilty knowledge and intent" of the organization's criminal purposes.' [Citation.] Accordingly, the Legislature determined that the elements of the gang offense are (1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation]." (People v. Albillar (2010) 51 Cal.4th 47, 55-56.)
As Ramos concedes, section 186.22, subdivision (a) does not require proof the defendant participated in a gang-related offense; rather, it only requires evidence the defendant was an active member of a gang and participated in some manner in an offense committed by a member of the gang. (Albillar, supra, 51 Cal.4th at p. 55.) In Albillar three gang members participated in the rape of a 15-year-old girl. In rejecting their contention their separate convictions under section 186.22, subdivision (a) required proof the rape was gang-related, the court stated: "The plain language of the statute . . . targets felonious criminal conduct, not felonious gang-related conduct. Where there is no ambiguity in the statutory text, ' "then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs." ' [Citation.]" [¶] " '[J]udicial construction of unambiguous statutes is appropriate only when literal interpretation would yield absurd results.' [Citation.] But there is nothing absurd in targeting the scourge of gang members committing any crimes together and not merely those that are gang related. Gang members tend to protect and avenge associates. Crimes committed by gang members, whether or not they are gang related or committed for the benefit of the gang, thus pose dangers to the public and difficulties for law enforcement not generally present when a crime is committed by someone with no gang affiliation. 'These activities, both individually and collectively, present a clear and present danger to public order and safety . . . .' [Citation.]"
Moreover, culpability under section 186.22, subdivision (a) does not require evidence a defendant was aiding or abetting another gang member or was aided or abetted by other gang members. Although in People v. Castenada (2000) 23 Cal.4th 743, 749-750, the court made reference to the liability of gang members under the statute as aiders and abettors, it is now well-settled this reference did not define the limits of the statute and was meant only to refute the defendant's contention in that case that section 186.22, subdivision (a) impermissibly punished mere membership in a gang. (See People v. Ngoun (2001) 88 Cal.App.4th 432, 434-435 (Ngoun); People v. Salcido (2007) 149 Cal.App.4th 356, 370 (Salcido); People v. Sanchez (2009) 179 Cal.App.4th 1297, 1306-1307 (Sanchez).) "Given the objective and intent of subdivision (a), we find good reasons . . . to conclude that this subdivision applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor. Courts should give statutory words their plain or literal meaning unless that meaning is inconsistent with the legislative intent apparent in the statute. [Citations.] Under the language of subdivision (a), liability attaches to a gang member who 'willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' (§ 186.22, subd. (a).) In common usage, 'promote' means to contribute to the progress or growth of; 'further' means to help the progress of; and 'assist' means to give aid or support. [Citation.] The literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a[n] . . . offense 'contributes' to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity." (Ngoun, supra, 88 Cal.App.4th at p. 436.)
Although Ramos points out that in Albillar all the defendants were gang members and that in Ngoun the defendant was accompanied by gang members when he committed the underlying murder, as the court in Albillar made clear, these facts are not material to liability under section 186.22, subdivision (a). Any crime committed by an active member of a gang is different in character than a crime committed by someone with no gang affiliation. (Albillar, supra, 51 Cal.4th at p. 55.) Plainly, the enhanced threat posed when a crime is committed by a gang member exists both when other gang members are present and when, as here, the gang member is acting in concert with a nongang member.
Here, there is ample evidence of Ramos's active participation in a gang and, as we discuss below, ample evidence of his attempt to murder the occupants of Ranae's minivan. Thus there was more than sufficient evidence of his liability under section 186.22, subdivision (a).
2. Section 654
Ramos argues that even if there was evidence to support his gang participation conviction, the trial court should have stayed sentencing on that conviction under section 654. The question of whether, and under what circumstances, a defendant may be sentenced both for gang participation under section 186.22, subdivision (a) and for the substantive crime which serves as the predicate to a gang participation conviction is presently being considered by our Supreme Court. (See People v. Mesa review granted Oct. 27, 2010, No S185688.) Pending resolution of the issue by the Supreme Court, we will follow the holding in People v. Herrera (1999) 70 Cal.App.4th 1456 (Herrera).
In Herrera, two gangs engaged in a series of retaliatory shootings. In the last series of shootings, shots were fired at a house occupied by members of the defendant's gang. One of them then drove and picked up the defendant, who explained to his girlfriend that his "home boys were after the guys." (Herrera, supra, 70 Cal.App.4th at p. 1461.) The defendant and his cohort then drove by a house identified with the rival gang, made a U-turn, and drove by again, firing shots both times. On the first pass, two people were hit. (Ibid.)
In addition to conspiracy to commit murder, two counts of attempted to murder, and firearm offenses, the defendant was convicted of one count of gang participation. (Herrera, supra, 70 Cal.App.4th at p. 1462.) In holding that section 654 did not require the trial court to stay the gang participation term, the court in Herrera stated: " '[M]ultiple punishment . . . may be imposed where the defendant commits two crimes in pursuit of two independent, even if simultaneous, objectives. [Citations.]
"The characteristics of attempted murder and street terrorism are distinguishable . . . . In the attempted murders, Herrera's objective was simply a desire to kill. For these convictions, the identities (or gang affiliations) of his intended victims were irrelevant. The fact he repeatedly shot a gun on two separate occasions—the interval between the two being brief but distinct . . . is sufficient to establish the specific intent to kill required for both counts of attempted murder. [Citations.] [¶] . . . [¶]
"[U]nder section 186.22, subdivision (a) the defendant must necessarily have the intent and objective to actively participate in a criminal street gang. However, he does not need to have the intent to personally commit the particular felony (e.g., murder, robbery or assault) because the focus of the street terrorism statute is upon the defendant's objective to promote, further or assist the gang in its felonious conduct, irrespective of who actually commits the offense. For example, this subdivision would allow convictions against both the person who pulls the trigger in a drive-by murder and the gang member who later conceals the weapon, even though the latter member never had the specific intent to kill. Hence, section 186.22, subdivision (a) requires a separate intent and objective from the underlying felony committed on behalf of the gang. The perpetrator of the underlying crime may thus possess 'two independent, even if simultaneous, objectives[,]' thereby precluding application of section 654. [Citation.]" (Herrera, supra, 70 Cal.App.4th at pp. 1466-1468.)
Importantly the court noted: "[I]f section 654 were held applicable here, it would render [Penal Code] section 186.22, subdivision (a) a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang. '[T]he purpose of section 654 "is to insure that a defendant's punishment will be commensurate with his culpability." [Citation.]' [Citation.] We do not believe the Legislature intended to exempt the most culpable parties from the punishment under the street terrorism statutes." (Herrera, supra, 70 Cal.App.4th at p. 1468, fn. omitted.)
We recognize that in Sanchez, supra, 179 Cal.App.4th at pages 1310-1313, the court elected not to follow Herrera and instead found that section 654 precluded punishment for both participation in a criminal street gang and the predicate felonious conduct required by section 186.22, subdivision (a). In finding that a defendant could not be punished for both crimes, the court stated: "Here, the underlying robberies were the act that transformed mere gang membership—which, by itself, is not a crime—into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies. Gang participation merely requires that the defendant 'willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang . . . .' [Citation.] It does not require that the defendant participated in the underlying felony with the intent to benefit the gang. [Citations.]
"In our view, the crucial point is that . . . defendant stands convicted of both (1) a crime that requires, as one of its elements, the intentional commission of an underlying offense, and (2) the underlying offense itself. Thus, the most analogous line of cases involves convictions for both felony murder and the underlying felony. It has long been held that section 654 bars multiple punishment under these circumstances. [Citations.] The logic is that the underlying felony 'is a statutorily defined element of the crime of felony murder' [citation], and thus the underlying felony is 'the same act which made the killing first degree murder.' [Citation.]
"Most significantly for our purposes, multiple punishment for both felony murder and the underlying felony is barred even when there is evidence the killing was intentional and premeditated [citation]; thus, the trial court could have found that the defendant had the intent and objective of killing in connection with the murder, as well as the separate intent and objective of taking property in connection with an underlying robbery." (Sanchez, supra, 179 Cal.App.4th at p. 1315.)
With due respect to our colleagues who decided Sanchez, we believe the court in Herrera has the better of this dispute. First, from a practical perspective, it seems somewhat incongruous to us to hold, as the court in Sanchez did, that although the direct perpetrator of a gang crime may be found guilty of violating section 186.22, subdivision (a), he may not be punished for that crime because of the bar imposed by section 654. (Sanchez, supra, 179 Cal.App.4th at pp. 1308, 1315-1316.) We of course agree with the court in Sanchez, as well as the courts in People v. Salcido, supra, 149 Cal.App.4th 356 and Ngoun, supra, 88 Cal.App.4th 432, that a direct perpetrator is just as culpable as an aider and abettor for violation of section 186.22, subdivision (a). However, rather than ignoring the Legislature's obvious intention that direct perpetrators be punished as well as aiders and abettors, we would draw from that intention an inference that in enacting section 186.22, subdivision (a), the Legislature meant to recognize an independent crime—gang participation—rather than a species of dependent criminal culpability.
Secondly, we are unpersuaded by the court's reliance in Sanchez on the rule in felony murder cases. In a felony murder case where there is only one victim, the element of malice is found by way of the fact the homicide occurred during the commission of a dangerous felony. Where the underlying felony is robbery, there is but one act, "the act of robbery . . . which made the homicide first degree murder." (People v. Mulqueen (1970) 9 Cal.App.3d 532, 547.) Multiple punishment is not permissible under those circumstances because there was only one act and more importantly only one criminal objective. (Ibid.)
Ramos's culpability under section 186.22, subdivision (a) is quite different. Violation of section 186.22, subdivision (a) does not depend solely on the commission of the underlying offense. Rather, it depends on both the commission of the underlying offense and the separate act of actively participating in a gang. Thus, unlike felony murder, liability under section 186.22, subdivision (a), necessarily depends on conduct distinct from the conduct which gives rise to liability for any underlying offense.
In sum, we see nothing in section 186.22, subdivision (a), or section 654 which suggests Ramos should not be punished both for the broader crimes of instilling terror in a community by way of the multiple acts of his gang and the distinct and more focused crime of chasing and shooting at Ranae's van. Thus, we find no violation of section 654 in punishing Ramos for both assault with a firearm and violation of section 186.22, subdivision (a).
b. Admission of Gang Evidence
Ramos argues that because there was no contention the chase and shooting were gang related and no evidence he was acting in concert with another gang member, the trial court not only erred in permitting him to be convicted of violating section 186.22, subdivision (a), it also necessarily erred in permitting the prosecution to put on evidence of his gang affiliation. Without evidence the underlying crime was gang related or committed with another gang member, Ramos contends the evidence of his gang affiliation was not relevant to any sustainable allegation against him.
As we have determined, in light of Albillar, supra, 51 Cal.4th at page 55, the prosecution was not required to show either that the chase and shooting were gang related or that Ramos was acting in concert with another gang member. To obtain a conviction under section 186.22, subdivision (a), it was sufficient to show that Ramos committed a felony and that he was a gang member when he did so. (Ibid.) In light of the wide scope of section 186.22, subdivision (a), evidence of Ramos's gang affiliation and the manner in which gangs operate was plainly relevant to the crime participation allegation.
We are of course mindful that where both an underlying crime and a gang enhancement have been charged, the prejudicial nature of gang evidence may require that the trial court conduct a bifurcated trial in which the underlying crime is tried first without admission of gang evidence and the gang enhancement is tried only if guilt is found on the underlying crime. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1050.) However, even if this remedy were extended to cases, such as this one, where a separate crime and violation of section 186.22, subdivision (a) are alleged, a trial court has considerable discretion to deny a motion to bifurcate in the interests of judicial economy. (Id. at p. 1051.) Ramos, although he asked to sever his trial from Morales's, did not ask that the crime participation count be bifurcated from the attempted murder allegation. Moreover, here, where the circumstances of the unprovoked chase and shooting itself were so shocking, trying the attempted murder and gang count in the same proceeding did not add a significant margin of prejudice and no doubt saved considerable judicial resources. Thus, even if a request to bifurcate had been made, the trial court would have been fully warranted in denying it.
II
Morales's Appeal
On appeal Morales argues there is insufficient evidence to support his conviction of the attempted murder of the four occupants of the Ranae's minivan. We find more than adequate evidence that Ramos attempted to murder the occupants of the van and that Morales aided and abetted him.
Ramos has joined in Morales's arguments to the extent they benefit him. (Cal. Rules of Court, rule 8.200(a)(5); People v. Castillo (1991) 233 Cal.App.3d 36, 51.)
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1. Standard of Review
As the Attorney General points out: "In determining evidentiary sufficiency, the court reviews the entire record, in the light most favorable to the judgment, for the presence of substantial evidence. Substantial evidence is evidence sufficiently reasonable, credible, and of such solid value 'that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' (People v. Johnson (1980) 26 Cal.3d 557, 578.) The same standard of review applies in considering circumstantial evidence . . . ." (People v. Chatman (2006) 38 Cal.4th 344, 389.)
2. Kill-Zone
With respect to Ramos's guilt for attempted murder, Morales contends the shots Ramos fired do not establish he was attempting to kill anyone in Ranae's van. Although we agree with Morales there are circumstances in which it is inappropriate to find an intent to kill based on a shot aimed at or toward a group of people, here the so-called "kill-zone" theory has obvious and proper application.
The "kill-zone" theory was first recognized in California by the court in People v. Bland (2002) 28 Cal.4th 313, 329-331 (Bland). In Bland the defendant and a confederate shot a number of bullets into a car, killing the driver and wounding two passengers. The defendant was convicted of the murder of the driver and attempted murder of the two passengers. Although the court rejected the Attorney General's contention the intent to kill the driver could be transferred to establish the intent necessary to support the attempted murder convictions, the court nonetheless found the requisite intent for attempted murder in the manner in which the shots were fired indiscriminately at the car: "Even if the jury found that defendant primarily wanted to kill [the driver] rather than [the] passengers, it could reasonably also have found a concurrent intent to kill those passengers when defendant and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone. Such a finding fully supports attempted murder convictions as to the passengers." (Bland, supra, 28 Cal.4th at pp. 330-331, fn. omitted.) In reaching this conclusion our Supreme Court relied on Ford v. State (1992) 625A.2d 984, 1000-1001, where the Maryland Court of Appeals stated: " '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."
In contrast to the holding in Bland, more recently in People v. Perez (2010) 50 Cal.4th 222, 224 (Perez), the court was unwilling to find a kill zone where the defendant fired a "single bullet at a distance of 60 feet, from a car going 10 to 15 miles per hour, at a group of seven peace officers and a civilian who were standing less than 15 feet apart from one another in a dimly lit parking lot late [at night]." In distinguishing Bland, the court in Perez stated: "Bland's kill zone theory of multiple attempted murder is necessarily defined by the nature and scope of the attack. The firing of a single bullet under these circumstances is not the equivalent of using an explosive device with intent to kill everyone in the area of the blast, or spraying a crowd with automatic weapon fire, a means likewise calculated to kill everyone fired upon. The indiscriminate firing of a single shot at a group of persons, without more, does not amount to an attempted murder of everyone in the group. The holding in Bland is not controlling on these facts." (Id. at p. 232.)
Looking at the nature and scope of the attack Ramos and Morales mounted on Ranae's van, we have no difficulty concluding that whoever was Ramos's principal target, Ramos had a concurrent intent to kill all the occupants of Ranae's van. In this regard it is significant that the chase reached speeds of 70 miles an hour on surface streets and involved both vehicles running a number of red lights. Such a relentless pursuit is not only powerful evidence Ramos and Morales were intent on doing harm to the occupants of the van, but it also is evidence of dynamic nature of the risk Ramos and Morales created: all the occupants of the van were not only potential gunshot victims, in addition they were also at a very high risk of being killed in a traffic collision. Given the totality of these circumstances, the jury could easily conclude Ramos had a concurrent intent to kill everyone in the car and thus was guilty of the attempted murder of each of the occupants.
3. Aiding and Abetting
Morales was charged and convicted as an aider and abettor of Ramos. " '[An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . . [¶] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury.' [Citation.] Thus . . . a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the 'natural and probable consequence' of the target crime." (People v. Prettyman (1996) 14 Cal.4th 248, 261.) Thus in order to convict Morales of attempted murder, the prosecution was not required to show that Morales had the specific intent to kill any of the occupants of Ranae's van. Rather, all the prosecution was required to show was that Ramos intended to commit a crime, that Morales intended to and did assist Ramos in committing that crime, and that murder or attempted murder was a probable consequence of Ramos's criminal conduct. The record here more than satisfies this burden of proof.
There is no dispute Morales drove the Previa towards Ranae's minivan rapidly, that while in control of the minivan Morales pursued Ranae at a high rate of speed, and that while Morales was chasing Ranae, Ramos was shooting at Ranae's minivan. From these circumstances the jury was free to infer that during the chase Morales intended and did assist Ramos in his attempt to injure or frighten the occupants of the van, and that a natural consequence of this conduct was the murder or attempted murder of the occupants.
Thus the record fully supports Morales's conviction of the attempted murders of the occupants of Ranae's van.
III
The record shows both Ramos and Morales were found guilty of attempted second degree murder. However, the abstract of judgment for both defendants identifies their convictions on counts 1 through 4 as "1st Attempted Mu[rder]." The Attorney General agrees that the abstract of judgment should be corrected to reflect the defendants' convictions of attempted second degree murder.
DISPOSITION
The judgments are corrected to reflect that the defendants were convicted of attempted second degree murder. Following issuance of the remittitur, the clerk of the trial court is ordered to prepare corrected abstracts of judgment as set forth herein and forward them to the Department of Corrections. In all other respects the judgments of conviction are affirmed.
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BENKE, Acting P. J.
WE CONCUR:
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HUFFMAN, J.
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IRION, J.