Opinion
C086268
06-08-2020
THE PEOPLE, Plaintiff and Respondent, v. VALENTIN VIVERO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKCRFECOD20150015870)
In October 2016, a jury convicted defendant Valentin Vivero of carrying a concealed firearm in a vehicle while being an active participant in a criminal street gang (Pen. Code, § 25400, subd. (c)(3) —count 7), carrying a loaded firearm in a vehicle while being an active participant in a criminal street gang (§ 25850, subds. (a), (c)(3)—count 8), and active participation in a criminal street gang (§ 186.22, subd. (a)—count 9). The jury was unable to reach verdicts on the remaining counts: the murder of Ray (count 1), shooting at an inhabited dwelling (count 2), and the attempted murders of Henry, Michael, Christina, and Maria (counts 3 through 6). The trial court declared a mistrial as to those counts.
Undesignated statutory references are to the Penal Code.
The matter proceeded to a second jury trial. In March 2017, the second jury found defendant guilty on counts 1 through 6. The jury found that the murder was first degree and the attempted murders were willful, deliberate, and premeditated under section 664, subdivision (a). The jury found true as to each count that defendant committed the crimes for the benefit of, at the direction of or in association with a criminal street gang, and with the specific intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)); and that a principal personally and intentionally discharged a firearm and proximately caused great bodily injury or death (§ 12022.53, subds. (d) & (e)(1)). The jury found not true that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury or death. (§ 12022.53, subd. (d).) The trial court sentenced defendant to a total term of 190 years to life plus one year and eight months in prison.
On appeal, defendant contends: (1) he was improperly impeached by prior phone calls that were "not properly discovered to the defense"; (2) the introduction of those phone calls was improper because they were not used for impeachment as discussed by the parties and the trial court; (3) the trial court erred by admitting evidence of firearms seized from a storage unit insufficiently connected to him; (4) the court erred by admitting evidence of prior statements by witnesses in violation of his right to confrontation; (5) the premeditation element of his convictions for first degree murder and attempted murder must be reversed because the jury instructions improperly permitted him to be convicted of both as an aider and abettor under the natural and probable consequences doctrine; (6) his convictions for first degree murder and attempted murder must be reversed for insufficient evidence under recent amendments to section 188; (7) his convictions for attempted murder must be reversed because the court failed to instruct on attempted unpremeditated murder as a lesser included offense of attempted premeditated murder; (8) his convictions must be reversed because of the cumulative effect of the alleged trial court errors; (9) his convictions for attempted murder must be reversed because there was insufficient evidence the victims were within a "kill zone" when they were shot; (10) there is insufficient evidence to support the jury's finding as to count 4 that Michael suffered a great bodily injury; and (11) defendant's sentence for count 9 should have been stayed pursuant to section 654. In supplemental briefing, defendant also argues the evidence was insufficient to support an instruction on the kill zone theory. We will affirm the judgment.
I. BACKGROUND
A. July 13, 2015, Shooting at McCloud Avenue House
The facts related to this shooting are taken from the second trial.
Two Norteño gangs in Stockton—South Side Stocktone (Triple S) and its offshoot, the Triple Six Gangsters—began committing crimes against each other in about 2009. In September 2011, a Triple S member was killed. A few days later, Rachel, the mother of Felix and Marchello, both members of the Triple Six Gangsters, was shot and killed in retaliation. All told, the feud between the two gangs resulted in more than a dozen drive-by shootings, assaults involving deadly weapons, and homicides. As a result of their feud, the two gangs became the subject of an investigation called Operation Triple Play in December 2014.
July 13, 2015, was the one-year anniversary of the death of Sam, a Triple S member who had been shot and killed. Ray, Christina, Michael, and others visited Sam's grave. Ray was a founding member of Triple S and influential within the gang.
Maria went with Christina to the cemetery, but visited a different grave.
Michael is Sam's brother. Michael denied being a Triple S member himself or that his tattoos referenced the Norteño gang. A police officer for the City of Stockton testified that Christina and Michael were also gang members, though he did not specify which gang they were members of.
At about the same time as the gathering at Sam's grave, defendant's black SUV was captured on surveillance video at the cemetery. Defendant is a member of the Triple Six Gangsters. He went to the cemetery for a separate gathering to memorialize Rachel, whose grave is at the cemetery. It was her birthday.
Later that evening, some of the people who had visited Sam's grave went to a house on McCloud Avenue to talk and drink beer. About 10 people were at the house, including the five victims in this case: Ray, Henry, Michael, Christina, and Maria.
Around 9:00 p.m., gunshots came from the street near the corner of McCloud Avenue and North Wood Lane. Maria and Christina were sitting in a circle of chairs in the front yard with two other women. Ray was standing next to them talking to his friends. Maria and Christina both went to the ground when they heard gunshots. Maria could not say how many shots she heard other than that it was a lot: "All I could tell you is that it was ongoing. It never stopped." Maria was shot in her leg and her arm. Christina was shot in her right elbow and her left hip.
One witness said it seemed like a very long time, estimating the gunfire lasted for about 15 seconds.
When the shooting started, Ray ran toward the pool in the front yard but fell to the ground by the corner of the house and the pathway to the house before he got there. The gunshots continued at least briefly.
Michael was standing in the pathway when he heard the gunshots. At first, he thought he was hearing fireworks. Michael "caught a ricochet" and still has bullet fragments in his left wrist. After the sound of gunfire ended, Michael got up and tried to help Ray, who was still on the ground and not responding. Ray died of a gunshot wound to his back.
Henry, another Triple S member, was also shot. He was found inside the house, lying on the floor with an entrance and exit wound to his leg. His shin appeared to be missing a section of flesh and bone the size of a baseball. Part of the remaining bone was protruding.
There were multiple bullet holes in the front windows, walls, and door. The exterior wall, in particular, had over 25 bullet strikes to it. One window had shattered. Some of the interior walls had bullet holes as well. One bullet fragment went through several walls. Another was found in the bathtub.
Law enforcement found 58 shell casings near a backyard fence line on North Wood Lane about 100 to 150 feet from the house on McCloud Avenue.
An expert in firearms identification, toolmark identification, and the comparative analysis of firearms opined, based on the casings, that at least three assault-style weapons were used in the shooting. B. July 23, 2015, Traffic Stop
The facts related to the traffic stop are taken from defendant's first trial.
On July 23, 2015, police officers conducted a traffic stop on a car defendant was driving. The officers ordered the occupants of the car to come out one at a time. Daniel was the front passenger, Santiago was sitting behind defendant, and R.F. was sitting behind Daniel. When R.F. got out of the car, a loaded handgun fell on the ground. Daniel had a loaded handgun in his waistband. An officer found a third loaded handgun under defendant's seat. The barrel was facing toward the back of the car and the handle was under the very front of the seat, where defendant could access it. Santiago and Daniel are members of the Triple Six Gangsters. R.F. is a Norteño gang member.
Defendant testified that he told the officers he did not have any knowledge of the firearms in the car because he did not want to be arrested and lose his job. He admitted he put the gun directly under his seat and that he was with fellow gang members.
II. DISCUSSION
A. Defendant's Phone Calls
Operation Triple Play began phone surveillance on three phones about a month before the shooting. A few days after the shooting, a wiretap was placed on defendant's phone. At trial, he raised various challenges to the admission of three of his recorded phone calls in which he made statements that contradicted his testimony at trial. On appeal, he contends: (1) his testimony was improperly impeached by information that was not properly delivered to the defense, and (2) the calls were improperly used as substantive evidence despite the fact that the parties and the court discussed their admissibility as impeachment. The latter argument was not among those raised in the trial court. We conclude there was no discovery violation.
Phone surveillance ended about two months after the shooting. At its peak, Operation Triple Play had a wiretap on 14 phones.
1. Trial Court Proceedings
During the prosecution's case in chief, R.P. testified that defendant came to his house to speak to him in July 2015. Defendant told R.P., " 'I fucked up.' " Defendant explained that he had gone to the doctor and was told he had either tumors or cysts on his brain and only had a few months to live. Defendant added, " 'I figured since I don't have nothing else to lose, I might as well take care of business.' " The two men discussed recent shootings in Stockton. Defendant told R.P. that he had "a beef" with Ray, and Ray had put a contract out on defendant. When discussing the killing of Ray, defendant "alluded to the fact that he was there," and said he had fired a gun. Defendant said they drove up, got out, and started firing. Defendant did not say who he was with. He told R.P. "it was either him or Ray[,] so it had to be Ray."
Defendant testified 12 days later. During questioning by his own counsel, defendant admitted to visiting R.P., but denied telling R.P. that he killed Ray. Defendant also denied telling anyone, including R.P., that he only had a short time to live. During cross-examination, defendant said he did not have blood clots, tumors, or cysts in his brain, and admitted there would be no reason for him to tell anyone that.
Defendant was not asked about these statements during his first trial.
After defendant's testimony, the prosecutor indicated he had rebuttal evidence to present—three recorded phone calls defendant made in late July 2015 in which he told someone he was sick, had blood clots on his brain, and was dying. Defendant's trial counsel objected and argued that, to his knowledge, he had not been provided the calls through discovery. The prosecutor said the calls had been provided with the calls from the wiretap that were given to the defense prior to the first trial. He added, "The transcripts didn't exist until less than a week ago. That's why he didn't have them any sooner. And . . . defendant swore to tell the truth. This is absolute proof he's lying." Defense counsel argued he should have been given the transcripts a week earlier, and not after defendant testified: "I certainly didn't receive it in this form as to where I would be able to review it. And had I reviewed it, . . . it may very well have affected the case that we put on." The trial court explained the prosecution was not required to turn over the transcripts unless it intended to use them, and this was impeachment evidence offered in rebuttal. (See Cal. Rules of Court, rule 2.1040(b) ["before a party may present or offer into evidence any electronic sound or sound-and-video recording . . . the party must provide to the court and to opposing parties a transcript of the electronic recording"].) The trial court tentatively ruled the calls were admissible.
The following day, defendant's trial counsel objected to the evidence under Evidence Code sections 770 and 1235 because defendant was not given an opportunity to explain or deny the statement, and the defense had rested. He also relayed that his investigator was of the opinion that "we did not have it in any form that was reasonably accessible to us. We received either a thumb drive or a disk. I don't know. I gave it to the investigator. . . . He said there were either 10,000 phone calls or 26,000 phone calls, one or the other. He couldn't remember. And there was no . . . way to access them in a rational manner where you could isolate like I want to hear just all of Valentin Vivero's phone calls or I want to hear all phone calls as of such a date." The prosecutor argued, "the fact is they were provided. Difficult to access, yes, based on sheer volume. In fact, I myself didn't even know about these until last week. They were available to [the] defense. And the transcripts, they may or may not have become relevant depending on how the defendant testified. All the law requires me to do is provide the information to the defense. That was done." The trial court agreed: "This is a case where there's massive discovery. It's also a case where the defense has had the evidence for a year and a half. It's also a case where the district attorney did not put it into his case in chief. He just is bringing it up as rebuttal. So those are different rules." The prosecutor also clarified that he was not offering the evidence for the truth of the matter asserted about defendant's health, but for credibility. The court initially found the phone calls were admissible not for the truth of the matter under Evidence Code sections 770 and 1235, but for the purpose of attacking the witnesses' credibility under Evidence Code section 1202. The defense was offered and accepted a one-week continuance for further research, after which the court determined Evidence Code section 1202 was inapplicable. The court ultimately ruled defendant had not been excused and "allow[ed] the impeachment" under Evidence Code section 770.
Under Evidence Code section 1235, "[e]vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770." Evidence Code section 770 provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action." Defense counsel initially asserted the statements were not inconsistent, before determining otherwise. Neither the parties nor the trial court discussed Evidence Code section 1220, which provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party." "The evidence was of statements, defendant was the declarant, the statements were offered against him, and he was a party to the action." (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.)
Under Evidence Code section 1202, "[e]vidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct."
The three phone calls were played for the jury. The audio as well as transcripts of the calls were admitted into evidence. In the first phone call, defendant told an unidentified female that the only reason he was out of prison was because he was dying and needs an MRI on his brain. In the second phone call, defendant told Joshua he was let out of jail because he has blood clots in his brain and was dying. In the third phone call, defendant told an unidentified female he was released from prison because he was dying.
Joshua was another member of the Triple Six Gangsters whose phone calls were being surveilled.
Defendant testified again. He said that if he previously said he never told anyone he had a short time to live, it was a mistake. He explained he told Joshua he was dying because being the only person who was arrested who was then released made him look like a snitch.
Relevant to defendant's claims on appeal, the prosecutor made the following statements during closing argument:
"We know [defendant] was lying to [R.P]. We have his medical records. He did not—well, it's still a lie. He did not only not have a couple months to live, he was not terminally ill with blood clots, cysts, tumors, any affliction whatsoever with the brain. How would [R.P.] know that he was telling people that? How could [R.P.] possibly have known to take this stand and tell the exact same lie that he told to three separate people? You can't and neither could he. He can't explain it. He can't explain about—explain how his lie was known by somebody he said he never told it to. You never heard any testimony that [R.P.] knew any of the people he knew. He didn't know Joshua[]. You never heard that testimony. How did [R.P.] know? Ladies and gentlemen, there's only one way. He told him. When you eliminate all other possibilities, the only thing that remains must be the truth." Defendant's trial counsel did not object to these statements.
Following trial, defendant filed a motion for new trial. At the hearing, his counsel stated, "my client would like to . . . put on the record that he believes there is an issue in terms of prosecutorial misconduct and/or incompetence of counsel" regarding whether the transcripts of the three phone calls had been available to the defense on a timely basis. The prosecution stated, "prior to the cross-examination concerning those phone calls or the introduction of testimony, I met with [the investigator for the defense] and specifically showed him on the thumb drive that was provided by [the prosecution] where those phone calls were." The trial court denied defendant's new trial motion.
2. Discovery
Defendant argues his testimony was improperly impeached by information that was not properly discovered to the defense. His arguments implicate both his constitutional right to due process under Brady v. Maryland (1963) 373 U.S. 83 (Brady), and his statutory right to discovery (§ 1054.1). We conclude neither was violated.
"Under the federal Constitution's due process clause, as interpreted by the high court in Brady . . . , the prosecution has a duty to disclose to a criminal defendant evidence that is ' "both favorable to the defendant and material on either guilt or punishment." ' " (In re Bacigalupo (2012) 55 Cal.4th 312, 333.) " 'There are three components of a true Brady violation: [(1)] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [(2)] that evidence must have been suppressed by the State, either willfully or inadvertently; and [(3)] prejudice must have ensued.' " (People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).) "We independently review the question whether a Brady violation has occurred, but give great weight to any trial court findings of fact that are supported by substantial evidence." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.)
"Section 1054.1 (the reciprocal-discovery statute) 'independently requires the prosecution to disclose to the defense . . . certain categories of evidence "in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies." ' [Citation.] Evidence subject to disclosure includes '[s]tatements of all defendants' (§ 1054.1, subd. (b)), '[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged' (id., subd. (c)), any '[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts' (id., subd. (f)), and '[a]ny exculpatory evidence' (id., subd. (e)). 'Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)' " (People v. Verdugo (2010) 50 Cal.4th 263, 279-280.)
Upon a showing both that the defense complied with the informal discovery procedures provided by the statute and that the prosecutor has not complied with section 1054.1, "a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (§ 1054.5, subd. (b).)
Defendant suggests the question before us is thus "whether the prosecutor's chosen method of discovery—handing over the entire [Operation] Triple Play product on a thumb drive—satisfied the statutory or constitutional discovery requirement." His claims fail because neither Brady nor section 1054.1 are directed at methods of discovery, so much as to the fact of disclosure.
In analyzing whether favorable evidence was suppressed for Brady purposes, courts do not even always require the prosecution to actually turn over the evidence: "Although the prosecution may not withhold favorable and material evidence from the defense, neither does it have the duty to conduct the defendant's investigation for him. [Citation.] If the material evidence is in a defendant's possession or is available to a defendant through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial, even if the prosecution is not the source of the evidence." (Salazar, supra, 35 Cal.4th at pp. 1048-1049.) Here, the court found defendant had the evidence of the three phone calls for a year and a half. Defendant does not contend the transcripts contained new information that the prosecution had not previously disclosed. Rather, defendant argues the information was suppressed because it would not have been reasonable for his defense to listen to all of the recorded phone calls. This amounts to a plea that the prosecution should have done more of his investigation for him by also providing him with a transcript for the three particular phone calls earlier. That does not establish suppression under Brady.
He asserts "[i]n effect, the information was hidden in a 'dump' of misleading discovery." The volume of the discovery was due, at least in part, to the fact the prosecution was required to disclose to defendant all of his intercepted phone calls, regardless of their potential relevance. (People v. Jackson (2005) 129 Cal.App.4th 129, 168-169.) The prosecution did so, and this satisfied its obligation under section 1054.1, subdivision (b) to disclose to the defense "statements of all defendants." Neither this statute nor Brady and its progeny impose an additional requirement that these statements be provided in any particular format or with any particular index where the amount of the discovery the prosecution provided was potentially burdensome.
3. Impeachment
Defendant contends the introduction of the phone calls was improper because they were not used for impeachment but as corroboration of R.P.'s testimony. Defendant asserts this use was not permitted by the Evidence Code or "the terms of the argument which led to the introduction of the recordings." The Evidence Code argument relies on a misapplication of People v. McKinnon (2011) 52 Cal.4th 610 (McKinnon), in which the witness, Hawkins, "testified on direct examination by the prosecutor that she could not recall Lee's demeanor when Lee thereafter returned to the room. The prosecutor was permitted to impeach Hawkins's testimony on this point with her prior out-of-court statement to investigator Buchanan that 'Lee said defendant had said he would kill her if she said anything about the Coder murder.' " (Id. at p. 671.) Our Supreme Court recognized "Lee's extrajudicial statement to Hawkins was hearsay insofar as admitted for the truth of Lee's claim that defendant had made such a threat. Defendant is correct in asserting that no exception to the hearsay rule, including the exception for prior inconsistent statements, permitted admission for that purpose of Lee's statement to Hawkins, because Lee was never asked on the stand about such a threat, and thus never denied receiving one." (Id. at p. 673.) Defendant contends, "[t]he rule which can be derived from the McKinnon opinion is that when evidence of a prior statement comes into evidence as impeachment, it may be improper to expand the use of the evidence for the truth of an invited inference." (Emphasis omitted.) McKinnon articulates no such rule. Rather, it addresses an extra layer of hearsay that was not at issue in defendant's prior phone calls. McKinnon is inapplicable.
Further, defendant has forfeited the argument that the evidence was used to corroborate R.P.'s testimony in violation of "the terms of the argument which led to the introduction of the recordings" by failing to raise this specific objection in the trial court. (See People v. Navarette (2003) 30 Cal.4th 458, 507 ["Defendant did not raise this specific objection in the trial court, and therefore he forfeited the issue"].) On reply, he claims he raised a sufficient objection without citing to one. He seems to be implying his own objection based on the prosecutor's assertion that he would only use the evidence for impeachment. This was insufficient to apprise the trial court of the issue defendant now raises, which is, essentially, that the unnecessary arguments and representations made in the discussion of the admissibility of the phone calls constrained the prosecution's use of the phone calls, and that the prosecutor's closing argument went afoul of these constraints. Defendant's counsel did not object at trial to the portion of the prosecutor's closing argument that he now claims improperly used the phone calls to corroborate R.P.'s testimony. He argues the purpose of the recorded phone calls was not made clear to the jury, but he did not object to the court instructing the jury with CALCRIM No. 318 that evidence of statements a witness made before trial may be used to evaluate the believability of the witness's testimony and as evidence that the information in the earlier statement is true. Defendant has therefore forfeited any claim that the court erred in not instructing the jury on any limitations to the use of the phone calls. (See McKinnon, supra, 52 Cal.4th at p. 670 ["a defendant who believes an instruction requires clarification or modification must request it"].) Defendant has forfeited any claim that the use of the evidence violated of any conditions of its admission.
He has established no error in the admission of the three phone calls regarding his prior statements that he was ill or dying. B. Evidence of Firearms in Storage Unit
Defendant argues the trial court abused its discretion by admitting evidence of four firearms—one of which was used in the shooting—seized from a storage unit that had been rented by someone else. We disagree.
1. Trial Court Proceedings
Before defendant's second trial, his counsel raised the issue of the prosecution's intent to introduce evidence of firearms seized during a search of a storage unit. One of the firearms was linked to the July 2015 shooting. Defense counsel argued "it's irrelevant and has no probative value as to" defendant, because there was no connection between defendant and the storage unit.
The prosecutor clarified that the storage unit was rented by Felix's wife, and Felix is a member of the same gang as defendant. He added that, four days after the shooting, Felix told defendant, in a recorded phone conversation, "something along the lines of you've got to lay low, don't be caught in that."
The trial court found the evidence relevant: "[I]t's relevant to show that they found a weapon involved in the shooting. And is that weapon connected to the defendant? It's not directly connected, but the circumstantial evidence certainly, I think, is very strong. Because the storage unit or locker was apparently rented by Felix[]'s wife, who is a member of the same gang. And then four days after the shooting, Felix[] speaks to the defendant, warning him he's got to 'lay low.' So I—I see a significant connection between the rifle and the defendant. And I think that's relevant. Also the fact that the defendant is charged with criminal gang activity, [Felix] is a member of the same gang, and some of the elements of criminal gang activity include that the defendant is aiding, assisting, encouraging, participating in criminal gang activity. And this certainly tends to show that. [¶] The—the only issue would be under [Evidence Code section] 352, if the prejudicial effect substantially outweighs the probative value. As I—as I say, I see strong probative value here. And I—I just don't see prejudicial effect here. I think actually the defense can argue this to their advantage. They can argue, well, the defendant didn't have that firearm, someone else did. But certainly the prosecution can argue to the contrary. But the bottom line is I think that the probative value substantially outweighs any prejudicial effect. So I will allow that evidence."
At trial, a police officer testified regarding a September 16, 2015, search of a storage unit in Winton. The officer explained four assault rifles were found inside a black pop-up canopy bag in the storage unit. Photographic exhibits of those weapons were identified by the officer and presumably shown to the jury. Defense counsel made no objection at this time. Items connected to Felix and his brother, a photograph of graffiti related to the Norteños, and a stencil that said "Norteño," were also found in the storage unit.
The prosecution's firearms expert opined that 15 of the casings found at the crime scene were fired by one of the assault-style weapons that was found in the storage unit.
A police officer assigned to the Stockton Police Department's Gang Violence Suppression Unit later testified regarding the concept of a gang gun: "[I]t's a gun specific to the gang.· So any gang member can have access to that gun if they need it for any type of thing that they are doing. Usually what they'll have is they'll have someone else or someone that has no conditions, no probation or parole, will be the ones that are the holder of the guns, a place where law enforcement can't get into to search or find them."
The evidence at trial demonstrated that, in a recorded phone call that was made four days after the shooting, Felix told defendant not to be in his SUV, not to move it, to "throw paint on it," and to just "be smart about it." Felix also explained how he was doing the same and was going to "rip the tint" off of it. Defendant subsequently painted the top half of his SUV red and removed the tint. On August 6, 2015, the Stockton police department posted an image to social media from the surveillance video of defendant's SUV at the cemetery from the night of the shooting. A few hours later, defendant and another man removed the rims on defendant's SUV and replaced them with rims they removed from the bed of a pickup truck.
2. Admissibility
" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness . . . , having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The trial court may not admit irrelevant evidence, but it has broad discretion in determining whether evidence is relevant. (People v. Babbitt (1988) 45 Cal.3d 660, 681.) "When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers 'substantially outweigh' probative value, the objection must be overruled." (People v. Cudjo (1993) 6 Cal.4th 585, 609.) "A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Defendant contends his connection to the storage unit was too attenuated to support the admissibility of the four rifles found inside it. He also argues the three rifles that were not connected to the shooting were completely irrelevant. The People argue defendant forfeited his challenge to the admissibility of the three additional firearms by failing to object at trial. Defendant counters that his counsel clearly conveyed an objection to all four firearms to the trial court, and the court understood and ruled on this objection. "An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide." (People v. Scott (1978) 21 Cal.3d 284, 290.) The record reflects defendant's trial counsel was under the impression two firearms were seized in the search, and his objection was that there was a lack of sufficient connection to the storage unit to render the firearm that was linked to the shooting probative as to him. He did not articulate an argument that additional firearms were entirely irrelevant to the crimes, and the trial court did not appear to rule on such an argument.
Even if defendant's challenge to the admission of the three firearms that were not forensically linked to the shooting was preserved, we reject his claims. Generally, "[w]hen the prosecution relies on evidence regarding a specific type of weapon, it is error to admit evidence that other weapons were found in the defendant's possession, for such evidence tends to show not that he committed the crime, but only that he is the sort of person who carries deadly weapons." (People v. Barnwell (2007) 41 Cal.4th 1038, 1056.) Defendant relies heavily on this principle in making his claims. But the weapons were not found in his possession. Regardless, "when weapons are otherwise relevant to the crime's commission, but are not the actual murder weapon, they may still be admissible." (People v. Cox (2003) 30 Cal.4th 916, 956, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The critical question is whether the weapons evidence is being admitted simply as disposition or character evidence. (People v. Prince (2007) 40 Cal.4th 1179, 1248-1249.)
As the People note, "evidence of the three additional firearms located in the storage unit did not amount to propensity evidence. The firearms were not found in [defendant]'s possession; it was clear that the storage unit did not belong to [defendant], and the prosecutor did not argue otherwise." Furthermore, as the trial court indicated, the firearms evidence was relevant to the gang enhancements and the People's theory that the crime was committed as part of an ongoing feud between two gangs. (People v. Nguyen (2015) 61 Cal.4th 1015, 1073 ["evidence that defendant possessed numerous firearms had 'tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action' (Evid. Code § 210), namely, that he was a gang member at war with a rival gang"].) There was a sufficient connection between defendant and Felix, particularly in the aftermath of the shooting, that the fact guns were being held in a storage unit rented by Felix's wife, including one used in the shooting, was relevant to the issues presented by this case. " ' "The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." ' " (Id. at p. 1035.) As the trial court recognized, any potential prejudice was lessened by the fact defendant could argue he did not have the firearms. The trial court did not abuse its discretion in concluding the probative value of the evidence was not substantially outweighed by the dangers of prejudice. C. Testimony of Veronica and Carlos
Defendant argues the trial court's admission of evidence of prior statements by Veronica and Carlos, after ruling the opposite way on a similar issue in his prior trial, violated his Sixth Amendment right to confrontation. Defendant has established no error.
1. Trial Court Proceedings
Veronica did not testify at defendant's first trial. At the second trial, she began her testimony by agreeing she did not want to testify and stating there was no need for her to be there. She also said that, on July 13, 2015, she was inside her house when she "heard gunshots. That was it. Made sure nobody was outside." She peeked out her window. Otherwise, Veronica generally responded to the prosecution's questions by saying she did not remember. When asked about a prior statement she made to an officer on the night of the shooting, she claimed the report did not help her remember because she did not "remember even saying anything like that" and she did not "sign any papers or [a] statement." On cross-examination, Veronica answered general questions about the location of her house and what she could see from it, and confirmed that she heard at least one shot, but otherwise responded to questions by indicating she did not know or could not remember.
Carlos testified at both trials. In the second trial, Carlos answered all of the prosecutor's questions with some variation of "I can't recall," and he often replied with that answer before the prosecutor finished his question. Defendant's trial counsel did not cross-examine Carlos.
Carlos also testified he could not recall anything related to the shooting at the first trial.
A police officer testified as to statements both witnesses made to him on the night of the shooting. Veronica told the officer that, after she heard gunshots, she went outside and looked toward the intersection of North Wood Lane and the street one block north of McCloud Avenue, where she saw "a long, dark SUV that was facing west in the eastbound lanes. [¶] And while she was looking that direction, she saw four men run up to that car, three of them were all in black clothing." One was in a white t-shirt. They were possibly Hispanic, and they all got into the SUV before it drove away.
Carlos told the officer he had been at the cemetery earlier that day. While he was there, a group of people pulled guns on the group that he was with.
After the officer testified, the parties and the trial court discussed on the record the admissibility of these prior statements by Veronica and Carlos. Defendant's trial counsel indicated he had objected, that the same issue had arisen in the first trial, and he was raising objections under People v. Sam (1969) 71 Cal.2d 194 and People v. Green (1971) 3 Cal.3d 981, two cases regarding the circumstances in which a witness's testimony that he or she does not recall is inconsistent with a prior statement. In the first trial, the court had excluded evidence of Carlos's prior statement to police under Evidence Code section 352 because "there's minimal relevance. Technically[,] it could be admissible under [People v. Fierro (1991) 1 Cal.4th 173], but I am concerned about the total lack of ability of the defense to cross-examine on that issue."
In the second trial, the court reached a different result. The court indicated it relied on People v. Fierro, supra, 1 Cal.4th 173 and Evidence Code section 1235 regarding prior inconsistent statements to conclude Veronica's and Carlos's prior inconsistent statements were admissible. The court explained it did not find either witness credible when they claimed they could not recall. The court found "the two witnesses were subject to confrontation and cross-examination by the defense. They both testified. So there is no confrontation issue here, and I think the jury will be well able to determine the credibility of these witnesses, and it will be just as easy for them to make that determination as it was for me."
2. Right to Confrontation
"The United States Supreme Court has made clear that admitting prior statements of a witness who testifies at trial and is subject to cross-examination does not violate a defendant's confrontation rights." (People v. Rodriguez (2014) 58 Cal.4th 587, 632.) Defendant's argument that the admission of Veronica's and Carlos's statements violated his right to confrontation relies on the principle that the opportunity to cross-examine is denied if a witness refuses to answer questions. (People v. Foalima (2015) 239 Cal.App.4th 1376, 1390.) This principle is inapplicable here. Veronica and Carlos both testified that they could not remember, and defendant does not contest the trial court's conclusion they did so untruthfully. As we have previously explained, "The circumstance of feigned memory loss is not parallel to an entire refusal to testify." (People v. Gunder (2007) 151 Cal.App.4th 412, 420.) The right to confrontation "is not denied if a witness cannot remember." (People v. Foalima, supra, at p. 1390.) "[A] witness who suffers from memory loss—real or feigned—is considered 'subject to cross-examination' because his presence and responses provide the 'jury with the opportunity to see [his] demeanor and assess [his] credibility.' " (Id. at p. 1391.) Under these circumstances, the trial court could admit Veronica's and Carlos's prior statements to law enforcement, and its ruling did not violate defendant's right to confrontation. (People v. Rodriguez, supra, at pp. 632-633.)
We reject defendant's suggestion that the trial court's ruling in the first trial somehow rendered its ruling in the second trial an abuse of discretion. At the first trial, the court's decision to exclude evidence of Carlos's prior statement to police appeared to be based at least in part on the erroneous belief that feigned memory loss created "the total lack of ability of the defense to cross-examine on that issue." The ruling was also based on relevance, an issue defendant did not appear to raise in the second trial and does not raise now. The trial court did not abuse its discretion in the second trial by correctly concluding the admission of Veronica's and Carlos's prior statements to law enforcement should not be excluded based on confrontation clause concerns. D. The Natural and Probable Consequences Doctrine
Defendant makes multiple challenges to his convictions for first degree murder and attempted premeditated murder that are premised on the theory that these convictions were based, or could have been based, on the natural and probable consequences doctrine. Defendant contends the premeditation element of his conviction for first degree murder must be reversed under People v. Chiu (2014) 59 Cal.4th 155 (Chiu) because the jury instructions improperly permitted him to be convicted of first degree premeditated murder as an aider and abettor to felony assault under the natural and probable consequences doctrine. (See id. at pp. 158-159.) Defendant similarly asserts we should extend the holding in Chiu to attempted premeditated murder convictions, and thus strike the premeditation findings with respect to those convictions as well. He also argues his convictions for murder and attempted murder should be reversed for insufficient evidence under recent amendments to section 188 because they were based on the natural and probable consequences doctrine.
Two years earlier, in People v. Favor (2012) 54 Cal.4th 868 (Favor), the court held an aider and abettor may be convicted of attempted premeditated murder if the attempted murder was reasonably foreseeable under the natural and probable consequences doctrine, and the attempted murder itself was premeditated pursuant to section 664, subdivision (a). (Favor, supra, at p. 880.) The court in Chiu did not overrule Favor, but found it distinguishable in the context of first degree premeditated murder. (Chiu, supra, 59 Cal.4th at p. 163.) Whether our Supreme Court should reconsider Favor based on Alleyne v. United States (2013) 570 U.S. 99 and Chiu is currently under review in People v. Lopez (2019) 38 Cal.App.5th 1087, review granted November 13, 2019, S258175. In the meantime, we are bound by, and follow, the holding in Favor. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Under that doctrine, "[a]t common law, a person encouraging or facilitating the commission of a crime could be held criminally liable not only for that crime, but for any other offense that was a 'natural and probable consequence' of the crime aided and abetted. [Citation.] [¶] Although the 'natural and probable consequences' doctrine has been 'subjected to substantial criticism' [citations], it is an 'established rule' of American jurisprudence [citation]. It is based on the recognition that 'aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.' " (People v. Prettyman (1996) 14 Cal.4th 248, 260.) "To apply the 'natural and probable consequences' doctrine to aiders and abettors . . . [t]he jury must decide whether the defendant (1) with knowledge of the confederate's unlawful purpose, and (2) the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendant's confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated." (Id. at p. 267.)
In Chiu, supra, 59 Cal.4th 155, our Supreme Court held "that an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liability for that crime must be based on direct aiding and abetting principles." (Id. at pp. 158-159.) Further, "[w]hen a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground." (Id. at p. 167.) The trial court here, however, never instructed the jury on the natural and probable consequences doctrine as an alternative basis for convicting defendant of murder or attempted murder. That is, the jury was never instructed as to any "target crime," such as assault or assault with a deadly weapon, upon which it could make the inference that the additional crime of murder or attempted murder was the natural and probable consequence. Nor was it instructed that it was permissible to do so.
To the extent the jury instructions mentioned "natural and probable consequences," it was only in the pattern instruction defining murder with malice aforethought (CALCRIM No. 520), which used that term to define implied malice. For purposes of murder, malice may be express or implied. (§ 188, subd. (a).) It "is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature" and it "is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188, subd. (a)(1) & (2).) The instructions permitted the jury to consider natural and probable consequences solely in assessing whether defendant acted with implied malice: "The defendant acted with implied malice if: [¶] 1. He intentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] 4. He deliberately acted with conscious disregard for human life. [¶] . . . [¶] An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] If you decide that the defendant committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in CALCRIM No. 521." The jury was thereafter instructed with CALCRIM No. 521 on first degree murder under the theory the killing was willful, deliberate, and premeditated. The jury found the murder was first degree under this theory, thereby finding express malice. (People v. Cox (1888) 76 Cal. 281, 285 ["if the evidence manifestly proves beyond a doubt that the 'killing' was premeditated, etc., the 'express malice' is proved"].)
We reject defendant's assertion that the narrow use of the concept of natural and probable consequences in defining implied malice permitted the jury to convict him of murder or attempted murder under the natural and probable consequences doctrine, or that the jury did convict him under that doctrine.
The jury found true that a principal personally and intentionally discharged a firearm and proximately caused great bodily injury or death, and not true that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury or death. (§ 12022.53, subds. (d) & (e)(1).) Defendant infers from these findings he was convicted as a driver, and not as a shooter. To the extent this is relevant, the jury's findings could just as easily reflect that defendant confessed to being one of the shooters, and it was unclear whose bullets did what. The trial court instructed the jury regarding aiding and abetting intended crimes with CALCRIM No. 401. The prosecution explained the concept as follows: "I don't have to prove to you which bullet killed Ray. I don't have to prove to you which bullet injured Maria, Henry, Michael or Christina or the house. I don't have to prove it. I have to prove that the defendant aided and abetted. Was it his bullet that killed Ray? Can't tell ya. But he told [R.P.] we went over there, we got out and we shot. So either his bullet did it or somebody he was with did it. Doesn't matter. Sometimes those things just can't be proven. Don't have to. Just that he aided and abetted." The prosecution similarly argued to the jury that the firearm enhancements were alleged in the alternative, providing two ways to find defendant guilty. The prosecution did not argue a natural and probable consequences theory of guilt, and the jury's findings do not reflect one.
The People similarly infer that the jury found defendant did not personally use a firearm in the commission of counts 1 through 6, but it does not appear that the jury was presented the option of finding a personal use allegation true (see § 12022.53, subd. (b)) without also finding discharge and great bodily injury or death. The applicable verdict forms gave the jury only section 12022.53, subdivision (d) as an option specific to defendant.
"To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he knows of the perpetrator's unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor." (CALCRIM No. 401.)
In sum, nothing in the record permits us to conclude the jury convicted defendant of first degree murder or attempted premeditated murder based on the natural and probable consequences doctrine. Defendant's arguments based on the doctrine are without merit. E. Instructions on Attempted Murder
1. Statutory Background and Trial Court Proceedings
"Section 664[, subdivision ](a) provides that a defendant convicted of attempted murder is subject to a determinate term of five, seven, or nine years. If the jury finds the premeditation allegation true, the defendant is subject to a sentence of life with the possibility of parole." (Chiu, supra, 59 Cal.4th at p. 163.) Further, "[t]he additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact." (§ 664, subd. (a).)
The jury instructions reflected these requirements. The jury was instructed with CALCRIM No. 600 on the definition of attempted murder and with CALCRIM No. 601 on premeditation. The first paragraph of CALCRIM No. 601 instructed the jury: "If you find the defendant guilty of attempted murder under Count 3[,] 4[,] 5[,] or 6, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation." The instruction concludes: "The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved." Consistent with these instructions, the verdict forms given to the jury asked for separate findings on the allegations that the attempted murders were done willfully and with premeditation and deliberation, and the jury found these allegations true.
2. Alleged Lesser Included Offense
Defendant contends counts 3 through 6 must be reversed because the trial court failed to instruct on attempted unpremeditated murder as a lesser included offense of attempted premeditated murder. In other words, attempted unpremeditated murder was not identified in the jury instructions as a lesser included offense of attempted premeditated murder.
Defendant's argument is premised on his claim that we should disregard case law holding that attempted murder is neither a separate nor a lesser included offense of attempted premeditated murder. (E.g., People v. Bright (1996) 12 Cal.4th 652, 669-670 (Bright); People v. Douglas (1990) 220 Cal.App.3d 544, 549-550.) We conclude the case law remains settled against defendant. Even if this were not so, it is not reasonably probable he would have obtained a more favorable result had such instructions been given. (People v. Breverman (1998) 19 Cal.4th 142, 165.) The jury was only instructed to consider whether the attempted murder was premeditated after it found him guilty of attempted murder. It thus could have convicted him of unpremeditated attempted murder, but chose not to. The fact that the jury was not told this was considered a separate offense under the law was harmless.
Regardless, as explained in Bright, supra, 12 Cal.4th 652, "attempted murder and premeditated attempted murder are the same offense. Thus, attempted murder is not a lesser included offense of attempted premeditated murder, but premeditation constitutes a penalty provision that prescribes an increase in punishment." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1049; see Bright, supra, at pp. 661-662, 670.) "In contrast to greater and lesser degrees of an offense, a penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances. A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged." (Bright, supra, at p. 661.) In Bright, the jury convicted the defendant of attempted murder, but could not reach a verdict on the allegation that the attempt was willful, deliberate, and premeditated. (Id. at p. 658.) The issue before the court was whether the double jeopardy prohibition precluded retrial on the allegation. (Id. at p. 656.) Our high court concluded it did not. (Id. at p. 671.)
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. (Id. at p. 490.) The court stated: "[W]hen the term 'sentence enhancement' is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict. Indeed, it fits squarely within the usual definition of an 'element' of the offense." (Id. at p. 494, fn. 19.)
Following the United States Supreme Court's ruling in Apprendi, our Supreme Court reexamined Bright's conclusion as to the nonapplicability of double jeopardy protections and held that after an appellate finding of evidentiary insufficiency concerning a finding that an attempted murder is willful, deliberate, and premeditated, double jeopardy protections preclude a retrial of the penalty allegation. (People v. Seel (2004) 34 Cal.4th 535, 539, 541 (Seel).) Our Supreme Court explained the premeditation allegation under section 664, subdivision (a) "is 'the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict.' " (Seel, supra, at p. 548; see also id. at p. 550 ["Apprendi now compels the conclusion that the premeditation allegation (§ 664[, subd. ](a)) constitutes an element of an offense"].) Seel has been read to leave intact Bright's conclusion that premediated attempted murder and attempted murder are not separate offenses. (People v. Sedillo, supra, 235 Cal.App.4th at p. 1049; accord Anthony v. Superior Court (2010) 188 Cal.App.4th 700, 706, fn. 4.) Our Supreme Court has clarified that Apprendi " means only that a defendant is entitled to have a jury determine whether those facts supporting an increased sentence have been proven beyond a reasonable doubt. The high court chose its language carefully and has expressed no intention to alter state law procedures that have no bearing on the jury trial right. . . . [¶] We recently rejected the notion that the high court's 'functional equivalent' statement requires us to treat penalty allegations as if they were actual elements of offenses for all purposes under state law." (Porter v. Superior Court (2009) 47 Cal.4th 125, 137, emphasis omitted.) Consequently, our Supreme Court has continued to reaffirm that "attempted premeditated murder and attempted unpremeditated murder are not separate offenses" and "[a]ttempted premeditated murder is not a greater offense or degree of attempted murder." (Favor, supra, 54 Cal.4th at pp. 876, 879.) Bright has not been overruled on these points. (See also People v. Izaguirre (2007) 42 Cal.4th 126, 132 [explaining Seel disapproved Bright "on the double jeopardy point"]; People v. Smith (2005) 37 Cal.4th 733, 740 ["the crime of attempted murder is not divided into degrees"].) We remain bound to follow it. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Defendant's assertion that the trial court should have instructed the jury on attempted unpremeditated murder as a lesser included offense of attempted premeditated murder is without merit. F. Cumulative Error
In Alleyne v. United States (2013) 570 U.S. 99, the United States Supreme Court held that the Sixth Amendment requires any fact that increases the mandatory minimum penalty for a crime "is an 'element' that must be submitted to the jury and found true beyond a reasonable doubt." (Id. at p. 103.) Our Supreme Court has continued to treat the premeditation allegation under section 664, subdivision (a) as a penalty provision. (See Chiu, supra, 59 Cal.4th at p. 163 ["unlike Favor, which involved the determination of premeditation as a requirement for a statutory penalty provision, premeditation and deliberation as it relates to murder is an element of first degree murder"].)
As we previously explained, Favor, supra, 54 Cal.4th 868 has not been overruled.
Defendant contends his convictions must be reversed because of the cumulative effect of the alleged trial court errors. "There was, however, no error to cumulate." (People v. Phillips (2000) 22 Cal.4th 226, 244.) G. "Kill Zone" Theory
Defendant challenges the sufficiency of the evidence to support his convictions for attempted murder under the "kill zone" theory of concurrent intent. "Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) The jury was instructed with CALCRIM No. 600 on these as points as well as the "kill zone" theory: "A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone.' In order to convict the defendant of the attempted murder of Henry[] in count 3, Michael[] in count 4, Christine[] [sic] in count 5 and Maria[] in count 6, the People must prove that the defendant not only intended to kill Ray[], but also either intended to kill Henry[], Michael[], Christine[] [sic] and Maria[], or intended to kill everyone within the kill zone."
In People v. Bland (2002) 28 Cal.4th 313 (Bland), our Supreme Court "expressly embraced the concept of a concurrent intent to kill as a permissible theory for establishing the specific intent requirement of attempted murder. Under that theory, which was first articulated by the Maryland high court in Ford v. State (1993) 330 Md. 682 (Ford), the nature and scope of the attack directed at a primary victim may raise an inference that the defendant ' "intended to ensure harm to the primary victim by harming everyone in that victim's vicinity." ' [Citation.] Quoting extensively from Ford, the Bland decision illustrated the notion of a concurrent intent to kill." (People v. Canizales (2019) 7 Cal.5th 591, 602 (Canizales).) " '[C]onsider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A's head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death.' " (Bland, supra, at p. 330.) The Bland decision also pointed to other cases that it considered "kill zone" cases. (Ibid.) Its discussion of People v. Vang (2001) 87 Cal.App.4th 554 (Vang) is also instructive: "[T]he defendants shot at two occupied houses. The Court of Appeal affirmed attempted murder charges as to everyone in both houses—11 counts—even though the defendants may have targeted only one person at each house. 'The jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up. . . . The fact they could not see all of their victims did not somehow negate their express malice or intent to kill as to those victims who were present and in harm's way, but fortuitously were not killed.' " (Bland, supra, at p. 330.)
Defendant argues the "kill zone" theory was not supported by substantial evidence because there was insufficient evidence describing where the attempted murder victims were in relation to Ray at the time of the shooting, and thus they were not within any definable "kill zone" when they were shot. After Canizales was decided, defendant filed a supplemental brief arguing, in part, that it was error to instruct on the kill zone theory because it was unsupported by the evidence. Defendant has failed to persuade us these facts are distinguishable from the examples set forth in Bland.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] 'This standard applies whether direct or circumstantial evidence is involved.' " (People v. Avila (2009) 46 Cal.4th 680, 701.)
Further, "to prevail on a sufficiency of the evidence argument, the defendant must present his case to us consistently with the substantial evidence standard of review. That is, the defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jury's verdict. [Citation.] If the defendant fails to present us with all the relevant evidence, or fails to present that evidence in the light most favorable to the People, then he cannot carry his burden of showing the evidence was insufficient because support for the jury's verdict may lie in the evidence he ignores." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.) Similar to Sanghera, the statement of facts in defendant's opening brief summarizes much of the relevant testimony, but when it comes to arguing the sufficiency of the evidence, he ignores what he has already set forth. (Ibid.)
Support for the jury's verdict lies in the evidence defendant ignores. Julianna identified a photo of the front of the house after the shooting and testified she, Christina, Maria, and another woman were sitting in chairs in a circle when the gunshots began. Ray was standing next to them. He was close enough that when the gunshots began, he pushed Julianna off her chair and knocked her down. Christina explained she "was by the front house, like the walkway to the front door, to the right side of the pool, I guess, if you're looking at the house straight on." Defendant argues with telling specificity that neither Christina nor Maria described her position in relation to Ray when the shooting began. Even if that narrow statement is technically accurate, the assertion that the record provides insufficient evidence that any of the attempted murder victims were in proximity to Ray is disingenuous. Likewise, Michael was questioned about where he was when the shooting started. He was standing in the pathway to the house when he heard the gunshots. After the sound of gunshots ended, Michael got up and tried to help Ray, who was "right there . . . laying down by the corner of the house right there and the pathway." Michael was shown various exhibits and asked to identify the house, the yard, and where he saw sparks from the gunfire. Henry was found shot inside the house behind Ray.
Having established the location of the victims in relation to Ray, we now turn to the scope of the "kill zone." "Bland's kill zone theory of multiple attempted murder is necessarily defined by the nature and scope of the attack." (People v. Perez (2010) 50 Cal.4th 222, 232.) To that end, our Supreme Court recently explained "the kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target[;] and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm. [¶] In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target. Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory." (Canizales, supra, 7 Cal.5th at p. 607.)
In Canizales, the defendants were convicted of first degree murder and two attempted murders. (Canizales, supra, 7 Cal.5th at p. 601.) The trial court gave a kill zone instruction to the jury in connection with one of the alleged attempted murder victims, Travion Bolden. (Id. at p. 601, fn. 3.) Our Supreme Court concluded the evidence was insufficient to warrant the instruction: "the evidence concerning the circumstances of the attack (including the type and extent of force used by [the shooter]) was not sufficient to support a reasonable inference that defendants intended to create a zone of fatal harm around a primary target." (Id. at p. 610.) The attack occurred at a block party on a wide city street. (Id. at p. 611.) The shooter fired five bullets from a nine-millimeter handgun from either 100 or 160 feet away. (Ibid.) The court noted that the fact that neither the primary target nor Bolden was hit by any of the shots fired, "when viewed in conjunction with evidence regarding the limited number of shots fired, defendants' lack of proximity to [the primary target], and the openness of the area in which the attack occurred[,] further diminishes any inference that defendants intended to create a zone of fatal harm around [the target]." (Ibid.) Because the court concluded the evidence was insufficient to support a finding that the defendants intended to create a zone of fatal harm, the court did not address the issue raised by defendant here—the scope of any such zone given the facts. (Ibid.) The court did explain generally that "the jury is to consider the circumstances of the attack, including the type and extent of force used during the attack, to determine the scope of that zone and whether the alleged victim was within the zone." (Id. at p. 612.)
Here, Christina and Maria were in front of the house next to Ray when the shots began, Michael was in the walkway near where Ray was when the shots ended about 15 seconds later, and Henry was in the house behind Ray. The attack came from a similar distance as the five shots from a handgun in Canizales, but the circumstances of the attack more closely resemble the facts in Vang. Fifty-eight bullets were fired from three assault-style weapons and roughly half of the partygoers were hit. Michael testified the gunfire was rapid enough that at first he thought they were fireworks. Christina tried to get out of the way by going to the ground, but she was still hit. Julianna recalled laying on her back and seeing bullets fly by. She could hear them hit the house. More than 25 shots hit the exterior wall, front door, and window of the house that Ray was standing in front of when the shots began. The shots were spread evenly across this area, and some went through interior walls. There was substantial evidence to support a finding that defendant and his companions intended to create a zone of fatal harm around Ray, and that Henry, Michael, Christina, and Maria were in that zone. The jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of wall-piercing assault-style weapons, that defendant had the specific intent to kill everyone in front of and inside of the house that he and his companions shot up. (Vang, supra, 87 Cal.App.4th at pp. 563-564.)
In Canizales, our Supreme Court again cited Vang, this time to explain that "the number of shots fired is simply one of the evidentiary factors to consider when assessing whether the type and extent of the defendant's attack supports instruction on the kill zone theory." (Canizales, supra, 7 Cal.5th at p. 611.)
In his supplemental briefing, defendant further argued there was insufficient evidence he shared the shooter's intent to create a zone of fatal harm around the intended victim. This claim is based on a footnote in Canizales declining to address an argument that "an aider and abettor cannot be held liable for attempted murder under the kill zone theory because doing so would improperly require the jury to attribute the shooter's intent to create a zone of fatal harm to the aider and abettor." (Canizales, supra, 7 Cal.5th at p. 612, fn. 6.) Even assuming an aider and abettor cannot be held liable under the kill zone theory without sharing the shooter's intent, we again disagree with defendant's premise that he was convicted as "an aider and abettor to some other person who sprayed bullets at the party in an effort to kill Ray." The evidence was that defendant was among those armed with an assault weapon and spraying bullets at the party in effort to kill those in attendance. Under these circumstances, there is ample evidence of a shared intent to create a kill zone.
In sum, defendant has failed to carry his burden of persuading us, in light of all material evidence presented in the light most favorable to the judgment, that there was insufficient evidence to support his convictions for attempted murder under a kill zone theory. We therefore reject his related claim of instructional error as well. H. Firearm Discharge Enhancement
Defendant argues the jury's finding as to count 4 that a principal personally and intentionally discharged a firearm proximately causing great bodily injury to Michael must be reversed because it is not supported by substantial evidence. (§ 12022.53, subds. (d) & (e)(1)). Specifically, defendant argues Michael received only a minor injury. We see sufficient evidence.
Section 12022.53, subdivision (d) incorporates the definition of great bodily injury found in section 12022.7, which defines such injury as "a significant or substantial physical injury." (§ 12022.7, subd. (f).) To be considered significant or substantial, the injury need not be so grave as to cause permanent or prolonged disfigurement, impairment, or loss of bodily function. (People v. Escobar (1992) 3 Cal.4th 740, 750.) Our Supreme Court "has long held that determining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury. [Citations.] ' "A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description." ' [Citations.] Where to draw that line is for the jury to decide." (People v. Cross (2008) 45 Cal.4th 58, 64.) A finding that the victim suffered great bodily injury must be upheld on appeal if it is supported by substantial evidence, even if the circumstances might reasonably be reconciled with a contrary finding. (People v. Escobar, supra, at p. 750.)
Michael did not realize he had been hit until an officer noticed blood on his hand. Michael testified he "caught a ricochet," and has bullet fragments in his left wrist. The fragments were not removed because of the risk of hitting a nerve and causing further damage. Michael was given a band-aid and a prescription at the hospital. He said the wrist never hurt. The jury was shown a picture of a wound that was about 1/8 inch wide and bloody. At the time of trial, Michael still had a scar.
"An examination of California case law reveals that some physical pain or damage, such as lacerations, bruises, or abrasions is sufficient for a finding of 'great bodily injury.' " (People v. Washington (2012) 210 Cal.App.4th 1042, 1047.) In particular, similar gunshot wounds have been found sufficient to support a finding of great bodily injury. (See People v. Wolcott (1983) 34 Cal.3d 92, 107-108 [victim shot in calf, but bullet fragments lodged in arms; doctor removed one fragment but left others to work themselves out; victim lost little blood, required no sutures and went to work the next day; no permanent disability but victim feels pain if arm touched near remaining bullet fragments]; People v. Mendias (1993) 17 Cal.App.4th 195, 201, 206 [gunshot wound to thigh was initially painful and treated at hospital but bullet was not removed; victim testified that five months later unextracted bullet was not painful]; People v. Lopez (1986) 176 Cal.App.3d 460, 462, 465 & fn. 5 [victim felt "fire" when shot in thigh, but no evidence victim sought or received medical treatment].) Even if Michael's wound was caused by a bullet that ricocheted, it penetrated his skin and the fragments are still there. Based on this record, the jury could reasonably determine Michael's wound qualified as a great bodily injury. As such, we will not disturb this finding on appeal. I. Section 654
Defendant contends the trial court erred in imposing a concurrent three-year sentence on count 9 for active participation in a criminal street gang (§ 186.22, subd. (a)) rather than staying the sentence pursuant to section 654 because it arose from the same course of conduct as the murder. We disagree.
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
A violation of section 186.22, subdivision (a) "has three elements: (1) '[a]ctive 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 person "willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang." ' " (People v. Mesa (2012) 54 Cal.4th 191, 197.) Our Supreme Court has explained that " 'section 654 precludes multiple punishment for both (1) gang participation, one element of which requires that the defendant have "willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of th[e] gang," [citation] and (2) the underlying felony that is used to satisfy this element of gang participation.' " (Id. at pp. 197-198.) With respect to this element, the trial court instructed the jury in defendant's first trial that it could convict him of active participation in a criminal street gang if it found he "willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by" "directly and actively committing a felony offense" or "aiding and abetting a felony offense." The court further defined "felonious criminal conduct" as "any of the crimes the defendant is charged with in this case." The jury convicted defendant of carrying a concealed firearm in a vehicle while being an active participant in a criminal street gang (count 7), carrying a loaded firearm in a vehicle while being an active participant in a criminal street gang (count 8), and active participation in a criminal street gang (count 9). The jury was unable to reach a verdict on the remaining counts, which all related to the July 13, 2015, shooting. The trial court declared a mistrial as to those counts. Given the instructions to the first jury, and its respective findings, we agree with the People that the underlying felony that was used to convict defendant of active participation in a criminal street gang in count 9 could only have been defendant's carrying a concealed firearm in a vehicle (count 7) or carrying a loaded firearm in a vehicle (count 8) on July 23, 2015. The trial court imposed but stayed three-year sentences for counts 7 and 8 pursuant to section 654. We reject defendant's contention that his sentence for count 9 should also be stayed based on his convictions at the second trial, which related to the July 13, 2015, shooting.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
DUARTE, Acting P. J. /S/_________
KRAUSE, J.