Opinion
B159699.
10-14-2003
THE PEOPLE, Plaintiff and Respondent, v. CHARLES SINGLETON and CEKOVEN JOHNSON, Defendants and Appellants.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant Charles Singleton. William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant Cekoven Johnson. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
1. The Charges
Appellants, Charles Singleton and Cekoven Johnson, were charged with conspiracy to commit murder and two counts of attempted premeditated murder. It was alleged that the charged offenses were committed in association with a criminal street gang to promote criminal conduct by the gang, that a principal personally and intentionally used a firearm, and that appellants had suffered prior serious felony convictions
2. The Trial Testimony
Nathaniel Valentine testified at trial that on March 14, 2002, he was in the company of Curtis Truley, standing behind a bus-stop bench near a 7-Eleven store in the City of Pomona, when he noticed a person in the nearby parking lot, pushing a small gray car with another person inside. They were in the territory of the Crips, later stipulated to be a criminal street gang. Valentine observed that the car started, was driven out of the parking lot onto Kingsley Avenue, where it turned right onto Indian Hill Boulevard, then approached Valentine and Truley, and stopped in front of them. Valentine recognized the cars passenger as Johnson, whom he knew as "Duke," a member of a sect of the Crips gang, "Ghost Town." When the car stopped, Johnson said, "Fuck 4-5-6 Dicks."
Valentine explained that "4-5-6" was the name of a sect of the Blood gang, and that the Blood gang is identified with the color red, while Crips are identified with the color blue. Johnson was wearing blue, and was holding a gun, "a revolver or something." Valentine recognized Johnsons statement as "dissing" the 4-5-6 Bloods. Valentine and Truley were wearing red that day, and Valentine was wearing red in court at trial, even red tennis shoes, but he denied being a member of the Blood gang.
Valentine, who had dated a relative of Johnson a month or two before, said to Johnson, "I know who you is." Johnson replied, "My bad," and put the gun down into his lap.[] Valentine then observed the driver reach toward the gun; and then he heard a shot and a scream, but neither of the cars occupants appeared to him to have been shot. Valentine turned and ran away. While he ran, he heard five more shots, but could not tell where they were coming from. When he reached the corner, he glanced back, and saw someone in blue standing next to the car, on the passenger side. He did not see a second person outside the car, and could not tell if the standing person was holding a gun.
Valentine was not asked to define the expression my bad. Our understanding is that it is a slang term meaning, "my mistake" or "oops."
Valentine admitted that he had been on juvenile court probation for carrying a deadly weapon to school when he was 14 years old, and that Detective Shope, the prosecutions gang expert in this case, arranged for the early termination of probation, so he could join the California Conservation Corps. He denied that this affected his willingness to testify.
Valentine identified Singleton as the driver, although he had told the police and testified at the preliminary hearing that he was unable to identify him. He denied being afraid of the Crips, but did not want to stir them up, and felt that he would be in trouble with them if he told the police anything about them or testified against them.
Lyle Poppie testified that at approximately noon on March 14, 2002, he was pulling into the parking lot of the 7-Eleven store at Kingsley Avenue and Indian Hill Boulevard in the City of Pomona. He observed someone attempting to push-start a gray Ford Escort automobile.
Poppie went into the store, and when he emerged some time later, he saw the car again, with two people inside. The car was stopped in the driveway of the parking lot near a pair of bus-stop benches, and he saw two other people standing near the benches. Once Poppie was inside his car, which was parked facing the benches, he heard gunshots, and saw a "trajectory" go through the right-hand bench. Poppie lay down until he thought it was clear, and then peeked out. The people who had been standing near the benches were gone, and he saw one of the cars occupants attempting to push-start it again.
Maryann Rogers testified that she was a police officer with the City of Pomona, assigned to patrol. On March 14, 2002, she responded to a call regarding a shooting at the 7-Eleven store on Indian Hill Boulevard. When she arrived, she spoke to Poppie and observed a bullet hole in the backrest of a bus-stop bench. She was able to tell from the characteristics of the hole that the bullet had come from the front of the bench. She also saw what appeared to be a bullet hole in the nearby 7-Eleven sign (but gave no opinion on its trajectory).
Rogers then went to a house on Terryview Avenue, where she found Johnson already in custody. He identified himself as Darryl Thomas and claimed to be 17 years old. She observed a Ford Escort parked west of the house, and when she approached the car and looked inside, she saw a great deal of blood on the drivers seat.
After Johnson was transported to jail, Rogers performed a gunshot residue test on his hands to determine whether he had recently fired a weapon, but she was not questioned with regard to any results.
Phil Bozoich testified that he was an officer of the Pomona Police Department, assigned to patrol on March 14, 2002. On that date, he went to the house on Terryview Avenue, where he found a shooting victim, whom he identified as Singleton. Singleton was near a gray Escort automobile, and the keys to the car were found in a flowerbed next to him.
Adam MacDonald testified that he was a forensic specialist with the Pomona Police Department, and was called to the house on Terryview Avenue on March 14, 2002. He examined the Ford Escort automobile that was found there. Inside, there was a pillow on the drivers seat with a "fair amount" of blood on it, a container of medication prescribed to Singleton, a computer-generated pharmacy prescription document, Singletons social security card, and receipt for the sale of a Ford Escort to Singleton. MacDonald processed the car for fingerprints, and many were found on the cars exterior, including two identified as Singletons and one identified as Johnsons.
MacDonald also went to the hospital emergency room where Singleton was being treated for a gunshot wound to both legs, and performed a gunshot residue test around the wounds, but he did not know the results.
Curtis Truley testified that he was with Valentine at approximately noon on March 14, 2002, at the 7-Eleven store on Indian Hill Boulevard. He and Valentine were standing near some benches when there was some gunfire. Truley claimed that the gunfire was coming from all around them, including the other side of Kingsley Avenue, but not from the nearby car. Nevertheless, Truley claimed that when he and Valentine ran away down Indian Hill, they ran toward Kingsley.
Truley denied that the car that approached them was a gray Ford Escort, asserting at trial that it was a blue car. He acknowledged that he testified at the preliminary hearing that the car was a gray Ford Escort, but claimed that he lied, because he was scared. Truley acknowledged that he testified at preliminary hearing that the cars occupants had been wearing blue, but claimed that he was lying, and that he lied to the police when he told them the same thing. He testified that they had been in black, but acknowledged that he never told the police that they had been wearing black. Truley denied that he was frightened at the time of trial, and denied that he was afraid of the Crips, or that anyone had threatened him or told him not to testify.
Truley testified that both he and Valentine were dressed in red on the day of the shooting. Truley was wearing burgundy-colored tennis shoes in court, and acknowledged that red is a sign of Blood membership and that Valentine was a Blood member, but he denied that he was a gang member.
Truley testified that his cousin, "Kemo" Pruitt was staying with a friend near Kingsley and Indian Hill, and that he saw his cousin that day across the street, going into a beauty supply just about the time the shots were fired.
Pomona City Police Detective Richard Shope testified as a gang expert. Shope testified that he was familiar with the criminal street gang known as the Crips, and the several Crips sects that operate in the City of Pomona. Crips members typically dress in blue, and wear similar caps or jackets.
Shope believed that Johnson was a member of the Crips gang, because Valentine had told him that Johnson was a Crips member, and because Valentine later testified that he was. Shope identified a photograph of Johnson just before booking, noting that he was dressed all in blue.
Shope had also researched the Cal-Gangs database, a statewide computer database designed to monitor gang contacts with authorities. He found that Singleton had admitted his membership in the Sin Town Crips to a Los Angeles Police Department officer in 1999. Singleton has "Sin" tattooed on one arm, and "3-5-7" on the other. "3-5-7," pronounced trey-five-seven, stands for Sin Town Crips.
The Crips primary activity appears to be narcotics trafficking, and because of that they become involved at times in feuds over the best locations for selling drugs in the City of Pomona. The area surrounding Indian Hill and Kingsley is "problem" narcotics trafficking area.
Shope identified a photograph of Truley taken the day of the incident, and testified that Truley had told the officer who took the picture that his nickname was "Baby Wack." Prior to the incident, Truley had admitted to Shope that he associates with the local Blood sect known as "4-5-6." He had no information to indicate that Valentine was a member of any Blood sect.
3. The Judgments
The jury found Singleton and Johnson guilty of conspiracy to commit murder (count 1), and appellants were convicted of two counts of attempted premeditated murder (counts 2 and 3). The jury found that the offenses were committed in association with a criminal street gang to promote criminal conduct by the gang, pursuant to Penal Code section 186.22, subdivision (b).[] The jury found the allegation pursuant to section 12022.53, subdivision (c), that a principal had personally used a firearm, to be true with regard to Johnson, but found the allegation that a principal had personally used a firearm not to be true with regard to Singleton.
All further statutory references are to the Penal Code, unless otherwise indicated.
The allegations of prior serious felony convictions were tried to the court. With regard to Singleton, the court found the prior conviction alleged pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), to be true; as well as the prior serious felony conviction alleged pursuant to section 667, subdivision (a)(1). With regard to Johnson, the court dismissed the allegation pursuant to section 667, subdivision (a)(1), and found the allegation pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), to be true.
Singleton and Johnson were sentenced on June 24, 2002. Both were sentenced to terms of 50 years to life with regard to count 1, conspiracy. Both sentences were enhanced by 10 years pursuant to section 186.22, subdivision (b)(1), and Johnsons sentence was enhanced an additional 20 years pursuant to section 12022.53, subdivision (c).[] Both were sentenced to life with possibility of parole with regard to counts 2 and 3, attempted murder, and those terms were stayed. Both filed notices of appeal the same day.
Respondent concedes error with regard to the gang enhancements. See our discussion within.
DISCUSSION
Johnson contends that there was insufficient evidence to support his convictions for attempted premeditated murder and conspiracy to commit murder, and insufficient evidence to support the gang and firearm allegations. He also contends that the trial court failed to instruct adequately with regard to circumstantial evidence.
Singleton joins in Johnsons contentions to the extent they are applicable to him, and in addition, contends that the trial court was required to instruct the jury that both the perpetrator and the aider and abettor must be found to have personally premeditated and deliberated. Both appellants assert sentencing errors.
A. Sufficiency of the Evidence:
"The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must `review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
1. Attempted Premeditated Murder[]
After oral argument, counsel for Johnson sent us a letter seeking to vacate submission of the case and to file further points and authorities challenging the findings of the jury regarding premeditation and deliberation. Appellant Singleton, who had waived oral argument, joined in the request. The letter itself contained the additional authorities and argument, principally citing to People v. Anderson (1968) 70 Cal.2d 15, 26-27, as the appropriate analysis in connection with the issue of premeditation and deliberation. We deny the request. In his opening brief, Johnson challenged the sufficiency of the evidence in connection with the two counts of attempted premeditated murder. In reviewing the evidence in connection with these two counts, we have used the so-called Anderson analysis, as the opinion demonstrates.
"Murder is the unlawful killing of a human being . . . with malice aforethought." (Pen. Code, § 187, subd. (a).) "In order to prove an attempted murder charge, there must be sufficient evidence of the intent to commit the murder plus a direct but ineffectual act toward its commission. [Citation.]" (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) Intent to kill may be established by circumstantial evidence. (People v. Bloyd (1987) 43 Cal.3d 333, 348.) It may be inferred from all the circumstances surrounding the attempt, including the actions of the defendant. (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690.)
"Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation. `[T]he test on appeal is whether a rational trier of fact could have found premeditation and deliberation beyond a reasonable doubt based upon the evidence presented. The three categories of evidence for a reviewing court to consider with respect to premeditation and deliberation are: (1) prior planning activity; (2) motive; and (3) the manner of killing." (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223-1224, fns. omitted.)
The three categories of evidence referenced in Villegas are more clearly explained in People v. Anderson, supra, 70 Cal.2d at pages 26-27, an opinion discussing the categories in connection with the crime of murder:
"The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing — what may be characterized as `planning activity; (2) facts about the defendants prior relationship and/or conduct with the victim from which the jury could reasonably infer a `motive to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of `a pre-existing reflection and `careful thought and weighing of considerations rather than `mere unconsidered or rash impulse hastily executed [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a `preconceived design to take his victims life in a particular way for a `reason which the jury can reasonably infer from facts of type (1) or (2)."
While the facts suggest that the attempted murder was a crime of opportunity, there is sufficient evidence of an attempted premeditated killing.
Singleton, a member of the Crips, drove the car and positioned it next to the two victims, who were dressed in red, signifying an affiliation with the Bloods, where Johnson, also a member of the Crips, brandished his loaded firearm and challenged the victims. It can be inferred that when Johnson pulled the gun down, Singleton grabbed it and fired it in the direction of the victims. Shooting at a rival gang member is evidence of intent to kill. (People v. Wells (1988) 199 Cal.App.3d 535, 540-541.)
When gunshots are directed toward the victim, an intent to kill may be inferred. (People v. Woods (1991) 226 Cal.App.3d 1037, 1048; see also, People v. Bland (2002) 28 Cal.4th 313, 330-331.) For example, in one case, intent to kill was inferred from the firing of six shots in the direction of the truck occupied by the victims, from a distance of about 25 feet. (People v. Villegas, supra, 92 Cal.App.4th at p. 1224.) In another case, intent to kill was inferred when a fleeing defendant stopped 15 to 20 feet from officers who had ordered him to stop, turned toward them and fired a gun in their direction. (People v. Lee (1987) 43 Cal.3d 666, 669.) The inference is particularly strong where the shots follow a threat to do bodily harm. (See People v. Jackson (1989) 49 Cal.3d 1170, 1200; People v. Lashley (1991) 1 Cal.App.4th 938, 953 [same].)
A large number of shots fired also suggest an intent to kill. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1463 [dozen]; cf., People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1436-1437 [five at close range]; People v. Villegas, supra, 92 Cal.App.4th at p. 1224 [six].) Nevertheless, a single bullet may be sufficient. (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690.) Here, at least one of the shots appears to have been directed toward the victims, since it hit the bench behind which they had been standing, and the shape of the bullet hole showed that the bullet came from the front of the bench.
Motive may be inferred from evidence that appellants were Crips members in Crips territory, as well as in a neighborhood in which Crips engaged in drug trafficking, and the victims were members of a rival gang, or appeared to be members of a rival gang. (See People v. Sandoval (1992) 4 Cal.4th 155, 175.)
The fact of premeditation can be inferred from Johnsons statement to the victims, "Fuck 4-5-6 Dicks," while brandishing the gun, and the fact that Singleton then took the gun from Johnson and shot at the victims. "`The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]" (People v. Villegas, supra, 92 Cal.App.4th at p. 1224, fn. omitted.)
Thus, we conclude there is substantial evidence to support the jurys finding that the shooting resulted from "preexisting reflection and weighing of considerations," and was done with the intent to kill. (People v. Perez (1992) 2 Cal.4th 1117, 1125.)
2. The Gang and Firearm Allegations
Both appellants were wearing blue, a color identified with the Crips, and both were identified as members of the Crips. Officer Shope identified the area where the shooting occurred was a problem narcotic area and testified that the Crips primary activity appears to be narcotic trafficking which results in feuds over the best locations for selling drugs. The two victims were each identified as members of the Bloods, a rival gang, and each were wearing red, the color identified with the Bloods. Victim Truly was identified with the "4-5-6" Blood sect. The shooting occurred when appellants came across the victims and Johnson intentionally challenged the victims while brandishing a gun. Singleton then obtained control of the gun and fired shots at the victims.
From this evidence, the jury could reasonably infer that appellants were attempting to scare rival gang members away from the area which appellants wanted to control themselves. This is sufficient to support the gang related finding.
With regard to appellant Johnson, the jury found true on each count that a principal personally and intentionally discharged a firearm, a handgun, within the meaning of section 12022.53, subdivisions (c) and (e)(1). The jury found not true the same allegations as to Singleton. Johnson argues that the findings are inconsistent and there is insufficient evidence to support the firearm use findings. We disagree.
In connection with the firearm allegation the jury was instructed with CALJIC No. 17.19.5. As pertinent it states: "The term `intentionally and personally discharged a firearm, as used in this instruction, means that the defendant himself must have intentionally discharged it. Or that a principal in the same offense personally discharged a handgun in the commission of the offense." The jury was also instructed with CALJIC No. 3.00 defining the term Principals. "Persons who are involved in committing or attempting to commit a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively commit or attempt to commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission or attempted commission of the crime."
Given the language of these instructions, not challenged by Johnson, the firearm use findings are consistent with a finding that after Johnson challenged the victims and brandished the gun, Singleton wrested the gun away from Johnson and fired at the victims. The fact that the jury made inconsistent findings with regard to Singleton does not diminish the sufficiency of the evidence to support the findings with regard to Johnson. (People v. Palmer (2001) 24 Cal.4th 856, 858.)
3. Conspiracy to Commit Murder
Appellants contend that there was insufficient evidence to support a conviction of conspiracy to commit murder. We agree.
"A conspiracy is an agreement between two or more people to commit a public offense. [Citation.] A conviction for such requires proof of: (1) an agreement; (2) the specific intent to conspire; (3) the specific intent to commit the offense; and (4) an overt act towards achievement of that goal. [Citation.]" (People v. Herrera, supra, 70 Cal.App.4th at p. 1464.)
"Evidence is sufficient to prove a conspiracy to commit a crime `if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.] [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)
"The gist of a criminal conspiracy is a corrupt agreement of two or more persons to commit an offense prohibited by statute, accompanied by some overt act in furtherance of the objects of the agreement. [Citations.] The existence of the conspiracy may be established by circumstantial evidence. [Citation.]" (People v. Causey (1963) 220 Cal.App.2d 641, 653; Pen. Code, §§ 182, 184.)
"Conspiracy is a specific intent crime, with the intent divided into two elements: `(a) the intent to agree or conspire, and (b) the intent to commit the offense which is the object of the conspiracy. . . . To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of the offense. [Citation.]" (People v. Backus (1979) 23 Cal.3d 360, 390.)
Only rarely is there direct evidence of an agreement to commit a crime, and so the agreement must usually be established by circumstantial evidence. (People v. Osslo (1958) 50 Cal.2d 75, 94.) "Thus, it is not necessary for the prosecution to prove the alleged conspirators made an express or formal agreement or that they ever met. [Citation.] It is necessary, however, for the prosecution to establish that the facts which are known prove beyond a reasonable doubt the existence of an agreement to commit the underlying crime." (People v. Austin (1994) 23 Cal.App.4th 1596, 1606-1607, overruled on another point in People v. Palmer, supra, 24 Cal.4th at p. 861.)
"It is well-settled that the unlawful agreement among conspirators may be inferred from the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties, the interests of the alleged conspirators and other circumstances. [Citations.]" (People v. Remiro (1979) 89 Cal.App.3d 809, 843.)
The problem we encounter with the conspiracy theory is the lack of evidence of an antecedent agreement to kill the victims. As we have previously noted, the attempted murder appeared to be a crime of opportunity. Appellants were both members of the Crips gang who approached two members of the rival Blood gang, where Johnson "dissed" the rival gang before shots were fired.
Association, by itself, does not prove criminal conspiracy, although it is a fact to be considered. (People v. Manson (1976) 61 Cal.App.3d 102, 126.) We have examined several cases in which association or gang membership was a factor in finding substantial evidence of a conspiratorial agreement. In each of these cases, unlike here, there was evidence to establish that the defendant went with his confederate knowing that he intended to do harm, and that the defendant and his associate went searching for the victims. (See e.g.,People v. Tran (1996) 47 Cal.App.4th 759, 772-773; People v. Herrera, supra, 70 Cal.App.4th at p. 1464 ("Herrera"); People v. Superior Court (Quinteros ) (1993) 13 Cal.App.4th 12, 21 ("Quinteros");In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996-997 ("Nathaniel C ").)
In Tran, both defendants were armed, and together borrowed a car and went to the restaurant looking for the victim. One of them entered and shot the victim, while the other waited outside with a shotgun, which he fired toward the restaurant when the victim was shot. (See Tran, supra, 47 Cal.App.4th at pp. 772-773.)
In Herrera, the defendant told his girlfriend that his gang was going to retaliate against a rival gang, and he admitted at trial that he got into his confederates car intending to "`back up" his fellow gang members; he armed himself with a gun, and after they cased the area, he fired the gun while the car made two passes in front of the apartment where the rival gang members had gathered. (Herrera, supra, 70 Cal.App.4th at p. 1464.)
In Quinteros, when the defendant, a gang member, came out of a beach restroom and told a group of his fellow gang members that he had been "jumped," one of them said, "Fuck it. Lets go get him"; and they went together, searched the restroom, then drove around until they found the victim and his friends, and assaulted them. (Quinteros, supra, 13 Cal.App.4th at p. 19.)
Finally, in Nathaniel C., a group of people, including several gang members, were riding together in a van on their way to a high-school dance, and on the way, they spoke about the possibility of finding members of a rival gang at the dance and fighting with them, because one of the rivals had recently stabbed one of the gang members who was in the van. (Nathaniel C., supra, 228 Cal.App.3d at p. 996.) Before arriving at the dance, the group put two baseball bats and a three-foot portion of a stairway handrail in the van; but when no rival gang members were found there, they decided to go to the park, where the group heard that they had gone. (Id. at p. 996.) It was at that moment that the defendant joined the group, got into the van with ten of them, and rode with them to the park; and while he was in the van, the stabbing incident was recounted, there was more talk about fighting and beating up the rival gang members to get even for the stabbing, and the group reviewed its plan to attack the rival gang members. (Ibid.) When the van arrived, it dropped off three groups, one at each end of the park and one in the middle, and two groups found and chased the rivals until one of them pointed what looked like a gun at them, which prompted them to return to the van, where the defendant was arrested along with the other van occupants a short distance away. (See id. at pp. 996-997.)
Here, by contrast, there was no evidence that either appellant saw the rival gang members before pulling into the driveway of the parking lot. Appellants were having trouble getting their car started and keeping it running. After jump-starting the car in the parking lot, they drove out of the driveway facing Kingsley Avenue, turned right onto Indian Hill Boulevard, and almost immediately, made a right turn into the nearest driveway back to the parking lot, where the cars motor died once again. It is unknown whether the motor died before or after the shooting, whether it died where two Blood members happened to be standing, or whether it died after appellants stopped in order to assault the two Bloods. Obviously, appellants pulled into the driveway intentionally. But whether they entered the driveway because they saw two Blood members, or whether they entered there because their motor was about to die again, is anyones guess. Nor was there evidence that Singleton knew that Johnson was armed, knew that Johnson intended to challenge the two Bloods or assault them or that appellants had been looking for any two rival gang members.
"`[W]here the proven facts give equal support to two inconsistent inferences, neither is established. [Citation.] [Citation.]" (Tran, supra, 47 Cal.App.4th at pp. 772.) Granted, the circumstance of two Crips members stopping next to two apparent members of their rivals, the Bloods, is highly suspicious, and it may seem improbable to the average observer that it was a coincidence. A reasonable inference, however, must be more than mere suspicion and probabilities. (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on another point in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5.) Nor may it be based solely upon "imagination, speculation, supposition, surmise, conjecture, or guess work. . . . [Citations.]" (People v. Morris, supra, 46 Cal.3d at p. 21, internal quotation marks omitted.)
We conclude that the evidence of an agreement was not substantial, such that a reasonable jury could find appellants guilty of a conspiracy beyond a reasonable doubt. (See People v. Ceja, supra, 4 Cal.4th at pp. 1138-1139.) Thus, appellants convictions on count 1 must be reversed.[]
In light of this conclusion we do not reach other arguments raised in connection with count 1.
B. Instructional Issues:
We turn next to appellants contention that the trial court failed to adequately instruct the jury.
1. Circumstantial Evidence Instruction
The trial court instructed the jury on the difference between direct and circumstantial evidence, with CALJIC No. 2.00, and with CALJIC No. 2.02, "Sufficiency of Circumstantial Evidence to Prove Specific Intent of Mental State."[] But it did not instruct the jury with CALJIC No. 2.01, which reads as follows: "[A] finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendants guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendants innocence, and reject that interpretation that points to [his] [her] guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
CALJIC No. 2.00 (7th ed.) states: "Evidence consists of testimony of witnesses, writings, material objects, or anything presented to the senses and offered to prove the existence or nonexistence of a fact. [¶] Evidence is either direct or circumstantial. [¶] Direct evidence is evidence that directly proves a fact. It is evidence which by itself, if found to be true, establishes that fact. [¶] Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. [¶] An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence. [¶] It is not necessary that facts be proved by direct evidence. They may be proved also by circumstantial evidence or by a combination of direct and circumstantial evidence. Both direct and circumstantial evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other."
CALJIC No. 2.02 (7th ed.) states: "The specific intent or and mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crime charged in Counts 1, 2, and 3, . . . unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent or and mental state but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to any specific intent or mental state permits two reasonable interpretations, one of which points to the existence of the specific intent or mental state and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the specific intent or mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
In an argument applicable only to him, appellant Johnson contends the trial court erred in failing to instruct with CALJIC No. 2.01. His argument proceeds as follows: "In the case at bar, the Peoples case rested substantially on circumstantial evidence, because there was no direct evidence that appellant or Singleton shot at Valentine or Truley. It was thus essential for fairness that the jury be instructed as to the points of law set forth in CALJIC No. 2.01, including, without limitation, those relating to two reasonable interpretations. As shown in the discussion of the facts in subdivisions C1 and C2 of Part I of this argument (which discussions are incorporated into this paragraph as though set forth in full at this point), the facts were susceptible of reasonable interpretations pointing to appellants innocence. For that reason, the trial courts failure to instruct the jury with CALJIC No. 2.01 deprived appellant of his right to due process guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and by article I, section 15 of the California Constitution."
Subdivision C1 of Part I argued insufficiency of the evidence to sustain the verdicts of conspiracy. Because we reverse those verdicts, discussion of the failure to instruct with CALJIC No. 2.01 becomes moot.
Subdivision C2 of Part I discussed sufficiency of the evidence to support the verdicts of attempted premeditated murder in the context of who did the actual shooting. Johnson suggests that the evidence supports the conclusion that it was Singleton who fired the shot and, if so, "appellant was not guilty as an aider and abettor, because the evidence showed that appellant put the gun down, thus that appellant did not want to shoot. An inference could be drawn from the evidence that appellant, recognizing that Valentine was a friend of his and a relative of someone he had dated, determined that he would not harm Valentine and that no harm should come to him, and that when Singleton reached for the gun, there was a struggle that eventuated in the shooting of Singleton. If Singleton then used the gun to shoot out of the car, the evidence indicated that it was against the wishes of [Johnson]." Johnson also argues that it is possible Valentine fired a shot at Singleton and that Singleton fired back in self-defense. We do not consider this latter suggestion because there is no evidence whatsoever that Valentine was armed or fired any shots.
As we have previously noted, we agree with Johnson that the evidence is susceptible to the reasonable inference that Singleton took the gun away from Johnson, shooting himself in the act, and then shot at Valentine and Truley. Drawing that inference in connection with this argument, however, focuses the issue directly on Johnsons mental state as an aider and abettor; and the jury was adequately instructed with CALJIC No. 2.02 on how circumstantial evidence should be viewed in that regard: "Also, if the evidence as to any specific intent or mental state permits two reasonable interpretations, one of which points to the existence of the specific intent or mental state and the other to its absence, you must adopt that interpretation which points to its absence."
Trial counsel for Johnson argued to the jury, specifically referring to CALJIC No. 2.02, that it had to find reasonable doubt in connection with the attempted murder charges because the evidence was susceptible to an interpretation Johnson abandoned his attempt. Counsel argued:
"Mr. Johnsons also charged in the crimes of attempted murder and its jury instruction 6.00 that defines attempt and indicates that there has to be a certain unambiguous intent to commit that specific crime, in this case murder.
"And it also talks about abandonment of an attempt when that is a defense, and if you presume or if you think the People have convinced you that there was this plan to commit the murder prior to stopping the vehicle, then theres a situation where Id suggest to you that the evidence shows that Mr. Johnson abandoned the attempt because he fits the definition if a person intends to commit a crime but before committing the act towards the ultimate commission of the crime freely and voluntarily abandons the original intent and makes no effort to accomplish it, that person has not attempted to commit the crime.
"When that gun is placed down on the seat and once again this is a scenario Im arguing that is most favorable to the People that were not conceding, but if you believe as Mr. Valentine described to you that the gun is then placed on the seat, not only does it constitute a withdrawal from the conspiracy, its an abandonment of the attempt."
The jury did not agree with the argument, and as we have previously determined, the evidence is sufficient to support the jurys verdict of attempted premeditated murder. To the extent that CALJIC No. 2.01 should have been given, we conclude that the error was harmless beyond reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
2. CALJIC No. 2.21.2
Appellants contend that the trial court erred by failing to instruct sua sponte with CALJIC No. 2.21.2, which reads: "A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars." (CALJIC No. 2.21.2 (7th ed.).) We disagree.
Trial courts have a duty to instruct sua sponte only on "`the general principles of law relevant to and governing the case. [Citation.] `That obligation includes instructions on all of the elements of a charged offense [citation], and on recognized `defenses . . . . [Citations.]" (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) "CALJIC No. 2.21.2, on the other hand, `does nothing more than explain to a jury one of the tests they may employ in resolving a credibility dispute. [Citation.]" (People v. Murillo (1996) 47 Cal.App.4th 1104, 1108, quoting People v. Blassingill (1988) 199 Cal.App.3d 1413, 1419.) A failure to read CALJIC No. 2.21.2 upon request is error. (See People v. Murillo, supra, 47 Cal.App.4th at p. 1107.) But there was no request here.
Additionally, the jury was adequately instructed with regard to resolving credibility issues when it was instructed with CALJIC Nos. 2.13, 2.20, 2.91 and 2.92. (People v. Murillo, supra, 47 Cal.App.4th at p. 1108.)
3. Aider and Abettor Instruction
We also reject appellants contention that the trial court was required to instruct the jury that the aider and abettor must be found to have been aware not only of the perpetrators intent to kill, but of the perpetrators premeditation. This question was recently answered in the negative by the California Supreme Court in People v. Lee (2003) 31 Cal.4th 613, 624-627.
4. Cumulative Error
Johnson argues that the cumulative effect of the instructional errors requires reversal. In light of the fact we have found no significant error in the instructions, this argument fails.
C. Sentencing Issues
Johnson contends that no enhancement at all should have been imposed pursuant to section 186.22, since section 12022.53, subdivision (e)(2), was applicable. (See People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282.) And both appellants contend that the trial court erred in imposing a 10-year gang enhancement upon their life sentences for count 1, pursuant to Penal Code section 186.22, subdivision (b)(1)(C), rather than a minimum parole period of 15 years, pursuant to section 186.22, subdivision (b)(5). (See People v. Montes (2003) 31 Cal.4th 350, 352-354.) Respondent concedes these points. We need not reach them, however, since we reverse the count 1 convictions, and we assume that the trial court will impose the correct sentence with regard to the new base term, as set forth in People v. Montes, supra, 31 Cal.4th at page 361, footnote 14, citing with approval People v. Villegas, supra, 92 Cal.App.4th at pages 1228-1229.
Appellant Johnson also contends that the firearm enhancement of section 12022.53, is unconstitutional on its face. Appellant acknowledges our opinion to the contrary in People v. Martinez (1999) 76 Cal.App.4th 489, 493-498, but contends that our reasoning does not apply where the enhanced sentence was imposed as here with regard to count 1, conspiracy to commit murder. Again, since we reverse count 1, we need not reach appellants contention.
Johnson further contends that 70 years to life (the sentence imposed here with regard to count 1, minus the gang enhancement) is cruel and unusual punishment. Appellant also contends that to the extent that the issue of cruel and unusual punishment may have been waived by his failure to raise it below (see People v. Kelley (1997) 52 Cal.App.4th 568, 583), he was deprived of effective assistance of counsel. Nor do we reach this contention. Since we shall reverse count 1, which was the base term in appellants judgment, the trial court will have to resentence appellants.
DISPOSITION
Singletons conviction as to count 1 is reversed, and Johnsons conviction as to count 1 is reversed. The convictions on counts 2 and 3 are affirmed, and in all other respects, the judgments are affirmed. The matter is remanded for resentencing.
We concur: EPSTEIN, Acting P.J. and CURRY, J.