Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA093233. William Birney, Judge.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
A jury convicted Curtis Wallace (appellant) of one count of attempted murder (Pen. Code, §§ 664, 187) (count 1) and one count of attempted voluntary manslaughter as a lesser included offense of attempted murder (§§ 664, 192) (count 2). With respect to both counts, the jury found true the allegation that the crimes were committed for the benefit of, at the direction of and in association with a criminal street gang within the meaning of section 186.22, subdivisions (b)(1)(C). With respect to count 1, the jury found true an allegation that appellant inflicted great bodily injury by discharging a firearm from a motor vehicle (§ 12022.55) and three firearm-use allegations (§ 12022.53, subds. (d), (e)(1), (c), (e)(1) & (b), (e)(1)). With respect to count 2, the jury found true the allegation that a principal personally used a handgun (§ 12022.5).
All further references to statutes are to the Penal Code unless stated otherwise.
For the determinate term, the trial court sentenced appellant in count 1 to the midterm of seven years and in count 2 to one-third the midterm of three years, or one year. The court added to count 2 a five-year gang enhancement for a total determinate sentence of 13 years. The court imposed an indeterminate term of 25 years to life in count 1 for the enhancement pursuant to section 12022.53, subdivisions (d) and (e)(1).
Appellant appeals on the grounds that: (1) his conviction in count 2 must be reversed because the prosecution failed to prove beyond a reasonable doubt that appellant acted with the requisite specific intent to kill; (2) the trial court abused its discretion in denying the defense motion for mistrial based on juror misconduct where improper communication by one of the jurors created a presumption of prejudice that was not adequately rebutted; and (3) the trial court erred in imposing a full five-year gang enhancement in count 2 in violation of section 1170.1, subdivision (a).
FACTS
I. Prosecution Evidence
In the early morning hours of December 30, 2005, Kevin Corbin (Corbin) left the Hully Gully club in Downey with a girl. He had arrived there the prior evening with his friends, Tim Moore (Moore) and Michael Pope (Pope). As Corbin walked from the club towards Moore’s car, a friend named Jo Artis Ratti (Ratti) was in front of him and Moore was behind him. As Corbin left the girl, he heard shots fired. He ran back towards the front of the club where he saw police officers with guns drawn telling him to freeze. Corbin then realized he was shot. Corbin testified that he did not see who shot him, and nothing drew his attention before shots were fired. Corbin suffered three shots to the abdomen, one to the thigh, and one to the buttocks. He stated that he did not try to deceive the police because he was scared of testifying.
De’Andre Turner (Turner) also was leaving the Hully Gully and saw Corbin, whom he knew from playing football, in front of him. Turner heard six to eight gunshots and ducked. He saw a white Camaro drive off and saw that Corbin was shot. He called an ambulance. The Camaro was a newer model with a sticker above the back wheel well. Turner identified People’s exhibit 6 as a photograph of the white Camaro he saw that night. Turner denied describing the persons in the vehicle to an Officer Yepes. He denied saying that he saw someone stick a gun out of the driver’s side window and that he heard someone yell that they were from Bounty Hunters. He acknowledged being taken to see the Camaro after it was stopped. He denied telling Officer Yepes at the station that he did not identify the suspects during the field showup because he was scared. He denied saying he recognized them at the showup and that he could pick them out of a photographic lineup.
Officer John Yepes, formerly of the Downey Police Department, was working a traffic stop near the Hully Gully club when he heard five to six shots. Officer Yepes ran toward the club and saw four male Blacks running towards him from the parking lot. He ordered them to the ground. One of them was yelling that he had been hit. After speaking with Turner and Ratti, Officer Yepes broadcast that the suspects were two male Blacks in a white, new Chevrolet Model SS Camaro. Turner told Officer Yepes that he saw a driver and passenger in the car. The driver was a male Black with gold teeth, and he was wearing a blue baseball hat with red stitching. The driver yelled out, “Yeah, Bounty Hunters.” The driver then raised a black automatic weapon and pointed it out the window. The passenger wore corn “rolls.” Officer Yepes took Turner to the field showup and admonished him. Turner could not positively identify the detained subjects, but he identified the car. At the station Turner said he could not identify the suspects because he was scared at the time, but he could identify them from a photographic lineup.
The officers who conducted a traffic stop on the white Camaro found a handgun and bullets in the car. The handgun, a loaded Luger nine-millimeter, was found under the backseat cushion. A nine-millimeter live round was found on the driver’s side floorboard. The Camaro’s occupants, appellant and his codefendant, were made to exit the car. A magazine was found in appellant’s right front pocket.
Police found four spent shell casings and four bullet fragments in the Hully Gully parking lot. The Luger recovered from the Camaro did not fire the shell casings found at the scene. The cartridge casings found at the scene bore stamps showing they were manufactured by Remington Peters and were for a nine-millimeter Luger. The 10 live rounds in a magazine found in appellant’s pocket bore the same Remington Peters stamps.
Officer Paul Hernandez interviewed appellant on December 30, 2005. Appellant was wearing tooth decorations called “grills.” The grills consist of a removable metal lining around the teeth that can be decorated with gold or stones. Appellant was not wearing them at trial.
Pope was at the Hully Gully club with Corbin. When Pope and his friends left the club, Pope walked out first and Corbin walked behind him. Pope headed for the Montero, the car in which he and his friends had arrived. Pope heard Corbin and another friend exchanging remarks. Someone in a white Camaro interjected a remark and Corbin walked up to the Camaro. Ratti grabbed Corbin and turned him away from the Camaro. Pope walked up to them and also tried to defuse the situation. The Camaro made a three-point turn and Corbin walked up to the Camaro again. Pope then walked up to the Camaro to pull Corbin away. Pope looked inside the car and saw the driver raise a gun from the center console across his chest. The driver said, “This is Bounty Hunter Blood,” and Corbin swore at the driver. Next, Pope heard gunfire. He ran towards the Montero, and Corbin ran towards the club. Corbin screamed that he had been shot. As he ran towards the Montero, Pope heard a bullet whiz by him, and one bullet hit the Montero. Pope identified appellant in court as the driver and his codefendant as the passenger. He also identified appellant in the field showup.
Robert Beckers, a police officer for the Los Angeles Police Department was formerly assigned to a gang unit. He was familiar with the Bounty Hunter Bloods gang and with appellant. Appellant admitted his gang membership to Officer Beckers in 2003. Appellant’s codefendant was also an admitted gang member.
Officer Francis Coughlin of the Los Angeles Police Department works in a gang unit and testified as a gang expert. He was primarily assigned to the Bounty Hunter Bloods, and he testified regarding the gang’s membership, the crimes gang members have committed, the history of the gang, its territory, and his knowledge of appellant’s gang membership. Officer Coughlin testified regarding convictions suffered by two Bounty Hunter Bloods gang members. The prosecutor posed a hypothetical question based on the facts of the instant case to Officer Coughlin and asked him if the shooting was committed for the benefit of the Bounty Hunter Bloods. Officer Coughlin testified that the shooting benefited the gang and that the shooter had the intent to promote the gang. By calling out “Bounty Hunter Bloods,” “you are letting the person you shot know who you are.” The shooting sent a message saying not to “mess with them.” Also, the shooting enhanced the status of the two gang members who committed the offense.
II. Defense Evidence
The only defense evidence presented was on behalf of appellant’s codefendant, Ahmad Perry. The parties stipulated that the Luger nine-millimeter firearm found in the white Camaro was registered to appellant.
DISCUSSION
I. Sufficiency of the Evidence of Attempted Voluntary Manslaughter
A. Argument
Appellant contends there was insufficient evidence he acted with the specific intent to kill Pope in count 2, and there was therefore insufficient evidence that he committed the crime of attempted voluntary manslaughter. According to appellant, there is a paucity of evidence that he shot in the direction of Pope with the specific intent to kill him. He claims that the one bullet fired in Pope’s direction was so off the mark that one could only surmise it was to scare the men running in that direction. At the very most, it was an attempt to injure them. Appellant maintains that the circumstances prior to the shooting and the manner in which the shooting was carried out also do not support the jury’s finding, and appellant was denied his due process right to be convicted only on substantial evidence.
B. Relevant Authority
“In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: ‘[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.] The United States Supreme Court has held: ‘[T]his inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is 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.’ [Citations.] The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. [Citations.] The California Supreme Court has held, ‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].”’ [Citations.]” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)
Attempted voluntary manslaughter is a lesser included offense of attempted murder. (People v. Van Ronk (1985) 171 Cal.App.3d 818, 822-825; People v. Tucciarone (1982) 137 Cal.App.3d 701, 705-706.) Attempted voluntary manslaughter consists of an attempted killing upon a sudden quarrel or heat of passion or in an actual, but unreasonable, belief in the need to defend against imminent death or great bodily injury. (People v. Williams (1988) 199 Cal.App.3d 469, 475.) The crime of attempted voluntary manslaughter, like attempted murder, requires proof of the intent to kill. (People v. Montes (2003) 112 Cal.App.4th 1543, 1546-1552.) However, unlike attempted murder, attempted voluntary manslaughter requires no malice. (People v. Lewis (1993) 21 Cal.App.4th 243, 251.)
C. Evidence Sufficient
We disagree with appellant and conclude there was sufficient evidence of his intent to kill Pope. Pope testified that when he approached the car window to pull Corbin away from the car, appellant reached over his chest with a gun in his right hand. He pointed the gun out the window and fired after calling out his gang’s name. Pope ran towards the Montero, the car in which he and his friends had arrived. Corbin ran in the opposite direction, towards the Hully Gully club. Corbin was hit with five bullets, and Pope heard a bullet whiz by him and strike the Montero. A bullet hole and a bullet fragment were found in the door of the Montero. This could only occur if appellant aimed at Pope, since Corbin was running in the opposite direction.
Pope’s testimony indicates that appellant’s aim was not “so off the mark”—only that the bullet missed him. The fact that appellant missed does not signify a lack of intent to kill. (See People v. Smith (2005) 37 Cal.4th 733, 742 [the fact that a bullet misses its mark is not dispositive, since the very act of firing a weapon in a way that could have caused a mortal wound if the bullet had been on target is sufficient to support an inference of intent to kill].)
Appellant unjustifiably relies on People v. Lashley (1991) 1 Cal.App.4th 938 (Lashley) to support his argument. In that case, we concluded that the defendant’s conduct before the shooting—which included a threat of bodily harm, the fact that he took aim, and the seriousness of the victim’s injuries—constituted substantial evidence on the issue of intent. (Id. at p. 945.) Lashley does not, however, establish a requirement of extensive threatening conduct and language in order to establish an intent to kill. Moreover, Lashley rejected the defendant’s “untenable theory that an unsuccessful killing constitutes conclusive evidence of lack of intent.” (Ibid.) The court stated that the very act of firing the rifle toward the victim within a range that could have inflicted a deadly wound if the bullet had been on target was sufficient to show intent to kill under the circumstances of that case. (Ibid.) As stated in People v. Vang (2001) 87 Cal.App.4th 554, the proof of intent to kill is “‘generally deemed sufficient if the means used by the defendant, and the surrounding circumstances make the crime apparently possible.” (Id. at p. 564.) Under the circumstances of this case we believe there was sufficient evidence to support the jury’s finding that appellant had the intent to kill Pope.
II. Denial of Mistrial Motion Based on Juror Misconduct
A. Argument
Appellant contends that his constitutional right to a fair trial by an impartial jury was violated when one jury member engaged in improper communications with his fellow jurors. This occurred when Juror No. 12 communicated his personal observations during trial to the other jurors and contaminated the entire panel. Appellant maintains that the trial court abused its discretion in denying the defense motion for mistrial because the misconduct was prejudicial.
B. Relevant Authority
An appellate court applies the abuse of discretion standard of review to any ruling on a motion for a mistrial. (People v. Williams (1997) 16 Cal.4th 153, 210.) Such a motion should be granted only when a defendant’s chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282.) “‘“‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’”’ [Citation.]” (People v. Staten (2000) 24 Cal.4th 434, 466.)
In determining whether juror misconduct occurred we accept the trial court’s credibility findings if supported by substantial evidence. (People v. Mendoza (2000) 24 Cal.4th 130, 195.) “Juror misconduct raises a rebuttable presumption of prejudice. The presumption may be rebutted by proof that prejudice did not actually result.” (Ibid.) Prejudice may also be rebutted ‘“by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party. . . .”’ (People v. Miranda (1987) 44 Cal.3d 57, 117, disapproved on another point in People v. Marshall (1990) 50 Cal.3d 907, 933.) “Some of the factors to be considered when determining whether the presumption is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.” (People v. Von Villas (1992) 11 Cal.App.4th 175, 256.)
“Misconduct on the part of a spectator is a ground for mistrial if the misconduct is of such a character as to prejudice the defendant or influence the verdict. [Citation.] A trial court is afforded broad discretion in determining whether the conduct of a spectator is prejudicial.” (People v. Lucero (1988) 44 Cal.3d 1006, 1022.) In cases of spectator misconduct, prejudice is not presumed. (People v. Hill (1992) 3 Cal.4th 959, 1002, disapproved on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.) “‘[I]t is generally assumed that such errors are cured by admonition, unless the record demonstrates the misconduct resulted in a miscarriage of justice.” (People v. Hill, supra, at p. 1002.)
C. Proceedings Below
Prior to final argument, the trial court addressed the parties, stating that the bailiff had been approached by a juror that morning. The juror reported that he believed a member of the audience had taken a photograph of Pope during his testimony with a cell phone camera. The prosecutor requested a hearing with this juror outside the presence of the other jurors.
The trial court called in Juror No. 12, who stated that he saw a member of the audience putting his phone away. As the person put it away, Juror No. 12 thought the person lifted up the phone above his waist, and the juror was not sure if the person took a photograph. Juror No. 12’s main concern when he saw this was his safety and that of the other jurors. At the hearing, the juror was still concerned with his safety, but, upon further thought, he believed that camera phones cannot take photographs from the distance that existed in this circumstance.
Juror No. 12 admitted that he had shared his observation with the other jurors as a group. He said his observation would not cause him any difficulty in deliberating the case. He was still open-minded, focused on the case, and not intimidated.
Appellant’s trial counsel moved for a mistrial, stating that the jury had been prejudiced by Juror No. 12’s concern. Counsel argued that the incident was very damaging in a case with a gang allegation, and further damage would be created by asking the other jurors if they were intimidated by the occurrence. Appellant’s codefendant also requested a mistrial and stated that the audience member in question had been identified by the gang expert as one of two Bounty Hunter gang members in the audience. The prosecutor suggested questioning the other jurors in an abundance of caution.
The trial court cleared the courtroom and questioned the jurors one by one. Juror No. 1 did not recall hearing anything about the incident and did not “talk to the jury people.” Juror No. 2 said the incident would not affect how he or she would make decisions. Juror No. 3 stated that the incident was a “little strange,” but it would not make him or her look at the case any differently or be less impartial. Juror Nos. 4 through 10 told the court they had not been affected by hearing about the cell phone incident and their impartiality had not changed. Alternate No. 1 stated that the possibility of his or her picture being taken did not interfere with the case at all and it would not “pertain to a decision.” The second alternate also said the information had no effect on his or her ability to be fair and impartial.
Juror No. 11, on the other hand, said that the incident made him extremely nervous because of his knowledge of technology and cameras. If an actual picture had been taken, he would not be comfortable. Juror No. 11 was of the opinion that a picture could be taken of someone from 30 feet away with current technology. When asked if the incident had affected his impartiality, Juror No. 11 stated, “I believe so, but I know too much technology. It could have been live video over the internet. There are a lot of technology that I think people underestimate.” Juror No. 11 insisted that he was not comfortable, especially since he could potentially have work in the areas surrounding the location of the offense. The juror said he was going to be less impartial, and the incident would definitely be in the back of his mind. If there was indeed a camera involved, it was intimidating. The juror said he had not shared his technological expertise with the other jurors.
The trial court suggested dismissing Juror No. 11 and all parties agreed. They also agreed to the trial court dismissing Juror No. 11 out of the presence of the other jurors, and to the first alternate as a replacement. The trial court denied the motions for mistrial.
At sentencing, appellant renewed the mistrial motion. Appellant argued that all of the jurors had acknowledged that they had been advised about the camera phone and Juror No. 12’s fear that a picture had been taken of them, and this information was prejudicial and warranted a new trial. The court denied the motion, stating that every juror but one said he or she was not influenced by the possibility of someone taking a picture, and the one juror who was concerned had been discharged.
D. Motion Properly Denied
We conclude the trial court did not abuse its discretion in denying the new trial motion, and appellant’s due process rights were not violated. We believe appellant was not prejudiced by Juror No. 12’s observation and his conveyance of this observation to the other jurors. We need not engage in a lengthy discussion of whether the incident should be treated as an incident of juror misconduct or spectator misconduct. Regardless of the classification, under any standard of review, the incident was not prejudicial.
In both types of misconduct the danger is the effect that such misconduct, if any, might have on the impartiality of the deliberative process. The crux of the issue presented by the cell phone incident was whether the jurors could remain impartial and unbiased despite the knowledge imparted to them by Juror No. 12. The California Supreme Court discussed the issue of potential juror bias resulting from the receipt of information from extraneous sources in the juror-misconduct case of In re Carpenter (1995) 9 Cal.4th 634 (Carpenter). Carpenter summarized recent California Supreme Court and United States Supreme Court decisions by stating that the effect of jurors receiving outside information is judged by a review of the entire record and “[t]he verdict will be set aside only if there appears a substantial likelihood of juror bias.” (Id. at p. 653.) According to Carpenter, the bias can be tested in two ways. Bias is found if the extraneous material is objectively found to be inherently likely to have influenced the juror. Second, the reviewing court assesses the nature of the misconduct and the surrounding circumstances to determine if it is substantially likely the juror was actually biased against the defendant. (Ibid; accord People v. Tafoya (2007) 42 Cal.4th 147, 192.) The entire record must be reviewed to determine whether bias was likely, and this includes “the nature of the juror’s conduct, the circumstances under which the information was obtained, the instructions the jury received, the nature of the evidence and issues at trial, and the strength of the evidence against the defendant.” (Carpenter, supra, at p. 654.)
In the instant case, the extraneous information that was injected into the jury room was highly speculative and therefore not inherently prejudicial. It was clear from the trial court’s inquiry that most of the jurors had not given Juror No. 12’s information much thought. Furthermore, an analysis of the nature of the misconduct—whether classified as juror or spectator misconduct—and the surrounding circumstances leads to the conclusion that it is not substantially likely that Juror No. 12 or any juror (apart from perhaps Juror No. 11) was actually biased by what occurred. Juror No. 12 himself admitted that, upon further reflection, it was unlikely that a photograph had been taken of the jury, or that any photograph taken was of any use due to the distance of the photographer from the supposed subject. Unfortunately, he had imparted his speculations to the other jurors before engaging in further thought, which necessitated the trial court’s inquiry into the effect of the information on the other jurors. Juror No. 1 did not talk with the other jurors and had heard nothing. All of the other jurors but one asserted that hearing of the spectator’s conduct had not caused them to become less open-minded, fair, and impartial. The one juror who expressed reservations was discharged.
Turning to the aspect of spectator misconduct, we note that prejudice was not found even when jurors acknowledged feeling intimidated in the case of People v. Panah (2005) 35 Cal.4th 395. In that case, the defendant’s supporters “were following or ‘shadowing’ the jurors during breaks in their deliberations, while others, including his mother, were clustering near the jury while it was assembling on breaks.” (Id. at p. 480.) The trial court reported that a juror had told the bailiff she was intimidated by the presence of these supporters. A male juror was overheard expressing relief that the jury did not have to assemble on a certain floor, “presumably to avoid contact with defendant’s supporters.” (Ibid.) The Supreme Court concluded that the jurors’ “understandable concern [did] not amount to misconduct.” There was no evidence that the jury was biased against the defendant or that any bias affected the juror deliberations, and nothing in the record supported the defendant’s claim that he was denied an impartial jury.
We reach the same conclusion in the instant case. We believe the trial court adequately addressed the situation when it questioned each and every juror about the incident, and it arrived at the correct conclusions regarding the potential prejudice to appellant. None of the jurors reported a change in their ability to decide the case in an impartial manner. Hence, there was no “irreparable damage” to appellant’s chance of receiving a fair trial. (People v. Ayala, supra, 23 Cal.4th at p. 282.)
Furthermore, the evidence against appellant was more than substantial, to the degree that there was no reasonable probability the jury would have reached different verdicts absent the “misconduct” he alleges. Appellant and his car were identified by eyewitnesses at the scene. Appellant was identified as the driver and the shooter. He was found with a magazine in his pocket from the type of gun used in the shooting. The bullets in the magazine were of the same type as the expended rounds found at the scene. There was also ample proof of the gang allegation. The motion for mistrial was properly denied.
III. Imposition of Full Gang Enhancement in Count 2
A. Argument
Appellant contends the trial court erred in imposing a full five-year gang enhancement in count 2. Appellant argues that this violated section 1170.1, subdivision (a), which governs the aggregate term of imprisonment when two or more consecutive terms are imposed for felony convictions.
Appellant argues that the matter must be remanded so that the trial court may pronounce sentence pursuant to section 1170.1, specifying the principal and subordinate terms and correcting the sentencing on the gang enhancement in count 2 to reflect one-third of the term.
Respondent agrees that the matter must be remanded for resentencing on the gang enhancement in count 2 and adds that resentencing is also required because the trial court failed to impose or strike the gang enhancement found true as to count 1.
B. Relevant Authority
Section 1170.1, subdivision (a) provides, in full: “ Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.”
C. Remand Required
The record shows that the jury found true the gang allegations pursuant to section 186.22, subdivision (b)(1)(C) in both counts 1 and 2. Section 186.22, subdivision (b)(1)(C) provides for an additional term of 10 years if the felony committed is a violent felony as defined in subdivision (c) of section 667.5. Among the defined crimes in the latter section are attempted murder, [a]ny violation of section 12022.53, and “. . . any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5, or 12022.55.” (§ 667.5, subds. (c)(8), (c)(12), (c)(22), italics added.) The record shows that the jury found true an allegation pursuant to section 12022.55 in count 1, in which appellant was found guilty of attempted murder. Thus we see that the trial court could impose the section 186.22 enhancement of 10 years in count 1.
It is true that in count 1 the trial court has already imposed an enhancement of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1). Section 12022.53, subdivision (e)(1) provides that “[t]he enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22 [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” The trial court thus properly imposed this enhancement.
We note that section 12022.53, subdivision (e)(2) also provides that “[a]n enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part I shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.” (Italics added.) In this case, appellant was found to have personally discharged a handgun in the context of the true finding on the allegation under section 12022.55 in count 1, where the jury found that the defendant “inflicted great bodily injury on Kevin Corbin as a result of discharging a firearm from a motor vehicle within the meaning of Section 12022.55.”
In addition, although the verdict form for count 1 shows that the section 12022.53 allegations stated that “a principal” rather than “the defendant” “personally and intentionally” used or discharged a firearm, this language was clearly used to track the language of section 12022.53, subdivision (e)(1). This section allows the firearm-use enhancements to be imposed for any principal (including the direct perpetrator) when the principal violated section 186.22, subdivision (b) in addition to section 12022.53. The jury was instructed on the fact that a principal includes a direct perpetrator. (CALJIC No. 3.00.) More importantly, the jury was instructed that the section 12022.53 allegations in counts 1 and 2 required the jury to find that appellant personally used a firearm during the commission of the crimes charged. (CALJIC Nos. 17.19, 17.19.5.)
CALJIC No. 17.19 was read in pertinent part as follows: “It is alleged in counts 1 and 2 that the defendant personally used a firearm during the commission of the crimes charged. [¶] If you find the defendant guilty of one or more of the crimes charged, you must determine whether the defendant personally used a firearm in the commission of those felonies. [¶] The word ‘firearm’ includes a handgun. [¶] The term ‘personally used a firearm,’ as used in this instruction[s] means that the defendant must have intentionally displayed [sic] a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it. . . .”
Thus, according to the charged allegations and the jury instructions, appellant was susceptible to having a gang enhancement imposed in count 1.
As noted, the trial court imposed a full five-year gang enhancement with respect to count 2, the subordinate count. We agree with respondent that one-third of the 10-year gang enhancement was appropriate for this count. Although attempted voluntary manslaughter is not a violent felony, the jury found true with respect to count 2 that “a principal personally used a firearm, to wit, a handgun, within the meaning of Section 12022.5 Penal Code[.]” As stated previously, section 186.22, subdivision (b)(1)(C) provides for an additional term of 10 years if the felony committed is a violent felony as defined in subdivision (c) of section 667.5. Among the defined crimes in the latter section are “. . . any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5, or 12022.55.” (§ 667.5, subds. (c)(8), (c)(12), (c)(22), italics added.)
At oral argument, appellant pointed out that the section 12022.5 allegation in count 2 was not charged in the information. In objecting to the reading of CALJIC Nos. 17.19 and 17.19.5, quoted previously in this opinion, counsel below also argued that the information did not allege that appellant personally used a firearm. The record shows that an allegation under section 12022.55 was charged in count 2, however. But because the victim in count 2 (Pope), was not injured, the jury was instructed on a section 12022.5 allegation instead. Section 12022.5 is a lesser included charge of section 12022.55. Counsel expressly agreed to the trial court reading an instruction on section 12022.55 because it was alleged in the information. We agree with the trial court that reading an instruction on appellant’s alleged personal use in count 2 (and count 1) is not “an inconsistency that would result in any kind of miscarriage.” Therefore, the jury properly found true the allegation in count 2 that appellant violated section 12022.5, and the offense in count 2 was therefore a violent felony.
Section 12022.55 provides: “Notwithstanding Section 12022.5, any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, as defined in Section 12022.7, or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony, shall be punished by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10 years.” (Italics added.)
Because the trial court has discretion to impose or strike the gang enhancements under section 186.22, subdivision (g), we must remand for resentencing.
DISPOSITION
The judgment of conviction is affirmed and the matter is remanded for the trial court to exercise its discretion to strike or impose gang enhancements pursuant to section 186.22, subdivision (b)(1)(C) in counts 1 and 2 in conformity with section 1170.1, subdivision (a). Upon completion of resentencing, the trial court is directed to amend the abstract of judgment accordingly and to forward the abstract to the Department of Corrections and Rehabilitation.
We concur: ASHMANN-GERST, J., CHAVEZ, J.
CALJIC No. 17.19.5 was read in pertinent part as follows: “It is alleged in Count 1 that the defendant [] intentionally and personally discharged a firearm and caused great bodily injury to a person, Kevin Corbin, during the commission of the crimes charged. [¶] If you find the defendant [] guilty of Count 1, you must determine whether the defendant intentionally and personally discharged a firearm and caused great bodily injury in the commission of that felony. . . . [¶] . . . [¶] The term ‘intentionally and personally discharged a firearm,’ as used in this instruction, means that the defendant himself must have intentionally discharged it.”
Section 12022.5 provides in pertinent part: “(a) Except as provided in subdivision (b) [dealing with assault weapons], any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.”