P. v. Sausedo
Filed 11/17/10 P. v. Sausedo CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
| THE PEOPLE, Plaintiff and Respondent, v. DANIEL SAUSEDO et al., Defendants and Appellants. | B218982 (Los Angeles County Super. Ct. No. KA083334) |
APPEALS from judgments of the Superior Court of Los Angeles County. George Genesta, Judge. Modified and affirmed with directions.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Sausedo.
Richard C. Neuhoff and Barbara A. Zuras, under appointment by the Court of Appeal, for Defendant and Appellant Marquez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Lance E. Winters, Deputy Attorney General, for Plaintiff and Respondent.
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Defendants Daniel Sausedo and Salvador Marquez appeal from the judgments entered following a jury trial in which they were convicted of one count of first degree murder, with a special circumstance finding, and three counts of willful, deliberate, premeditated attempted murder, with gang and firearm-use findings. Defendants raise several claims of instructional error. We modify the judgments to correct several minor errors, but otherwise affirm.
BACKGROUND
On the night of March 12, 2008, Kevin Castillo was killed in a drive-by shooting in Pomona. (All further date references pertain to 2008, unless otherwise noted.) The shooting apparently stemmed from hostilities between two tagging crews—BSA and 420K—that had members living in the same neighborhood.
BSA was a small tagging crew of about 20 members that was affiliated with the Cherryville gang, and 420K was a larger tagging crew that was affiliated with the 12th Street Sharkies gang. The Cherryville gang and the 12th Street Sharkies gang were enemies, and BSA and 420K did not get along. Gang expert Detective Michael Lange testified that tagging crews “routinely” call upon their affiliated gangs to “step[] in and deal[] with” anyone who is causing them trouble.
About 7:00 p.m. on March 12, Gabriel Mariscal went to the home of his friend, Jose Cervantes, to return a shirt. The Cervantes home was located on Manor Circle at the southeast corner of the intersection of Manor Circle and Colony Drive in Pomona. As Mariscal was about to turn right on Colony Drive from Manor Circle, Edgar Castillo’s black Lincoln and a white Honda drove toward him and partially blocked his path. Edgar Castillo and Angel Garcia ordered him to get out of his car. Mariscal locked his doors, rolled up his windows, put his car in reverse, and went around them to make the right turn on Colony Drive. As he passed the house on Colony Drive where Edgar Castillo and Garcia lived, someone threw a cordless phone at his car and shattered his driver’s side window. As Mariscal drove to his brother’s house, he phoned Cervantes, told him what happened, and warned him that “they’re getting deeper and deeper,” meaning that “more and more people” from BSA, to which Edgar Castillo and Angel Garcia belonged, were gathering in the neighborhood.
Jose Cervantes denied that he belonged to the 420K tagging crew, but testified that 420K members who were his friends congregated at his house. He denied that any members of the 420K crew were at his house at the time of the shooting. Cervantes knew that Edgar Castillo, Angel Garcia, and Danny Rodriguez were part of the BSA tagging crew. Rodriguez lived down the block from Cervantes on Manor Circle, on the opposite side of the street, near the intersection of Manor Circle and Hamilton Boulevard. Edgar Castillo and Garcia lived on Colony Drive, near its intersection with Hamilton Boulevard. Garcia and Rodriguez were cousins, and Edgar Castillo was Garcia’s brother-in-law. Cervantes and Edgar Castillo had never gotten along. They gave each other harsh looks and had engaged in three fistfights. Cervantes had seen BSA graffiti on posts dividing his yard from his neighbor’s yard, and that angered his friends from 420K.
Sometime before 10:13 p.m. on March 12, Kevin Castillo, Alejandro Jimenez, Michael Espinoza, Armando Romero, and other men were standing next to a truck in the driveway of the Cervantes home when shots were fired at the group from a car that pulled up in front of the driveway. Kevin was struck and killed by a single bullet, which entered through the right side of his chest, penetrated both lungs and the heart, and lodged under the skin on the left side of Kevin’s chest. As far as the record reveals, no one else was injured.
Cervantes testified that he was just about to step out of his house through the side door when he heard four gunshots. When he got outside, he heard tires screeching and saw a dark-colored car turning right from Manor Circle onto Colony Drive. Cervantes told the police that it was similar in style to an older Nissan Maxima, possibly dark blue or dark green, with no rear license plate. No other cars were driving in the neighborhood at that moment. Cervantes told the police that he had seen the same car drive past his house about 10 or 15 minutes before the shooting. The police showed him a photograph of Sausedo’s car, and he said the body style was similar to the car he saw drive away after the shooting. Cervantes also told the police that previously he had seen a car like that drive past his house and park in front of the house where Garcia and Edgar Castillo lived. Cervantes had seen Sausedo and Marquez at that house, as well.
Espinoza, who was named as a victim of one of the attempted murder charges, denied that he was part of any tagging crew. He did not know Edgar Castillo, Rodriguez, or Garcia. Just before the shooting, Espinoza saw a dark-colored car driving up Manor Circle toward the Cervantes house. The car slowed down, and then about 20 to 25 seconds later, Espinoza heard four gunshots, one right after another. The car was right in front of Cervantes’s driveway when the shots were fired, with the car’s passenger side closest to the driveway. Espinoza ducked. After the shots stopped, he saw the car leaving, but did not know which direction it turned. He could not see people in the car. There were no other cars driving through the neighborhood at the time. The car Espinoza saw was similar to the car depicted in the photograph of Sausedo’s car. He told the police that the car he saw might have been a black Impala, Crown Victoria, or Lincoln. Espinoza was four or five feet from Kevin Castillo when Kevin was shot.
Jimenez—another named victim of one of the attempted murder charges—testified that he was standing “right next to” Kevin Castillo when Kevin was shot, and another man, whose name Jimenez could not remember, was right next to Kevin on the other side. Jimenez saw a small, dark car drive past going toward Hamilton Boulevard. About four or five houses down the street, the car made a three-point turn, and then it drove up and stopped right in front of the Cervantes’s driveway. Jimenez could not see the people who were in the car. A few seconds later, the shooting began. Jimenez counted four shots. The car drove away in the direction it was facing, but Jimenez did not see where it went.
Rodriguez admitted that he, Garcia, and Edgar Castillo were members of BSA, but he denied knowing either defendant and denied that BSA was affiliated with any gang. He further denied knowing about 420K or any trouble between Edgar and Jose Cervantes. Rodriguez claimed that he did not recall anything about the shooting or the incident with Mariscal and did not remember making any statements to detectives or identifying any photographs.
A recording of Rodriguez’s interview with Detectives Danny Kono and Jennifer Turpin was played at trial. He told them that Kevin Castillo was a “family friend.” On the day of the shooting, Rodriguez walked to his cousins’ house, and they told him that “some fool came by tripping.” He went home, and one of his cousins called and said, “[S]tay inside because it’s getting deep.” Rodriguez called “Huero” (Marquez), told him, “[T]hese fools are trippin’ and want to get down.” He asked Huero to “bring a couple of homies” to even out the numbers because “[t]hey look about eleven deep.” Huero agreed, but came over with only “G-Rocks” (Sausedo). They arrived in a dark car that might have been the “dark bucket” that G-Rocks usually drove, which looked just like the car belonging to Rodriguez’s neighbor. Rodriguez realized that they did not have enough people on their side to be able to fight, so he said, “I’m calling it a day, that’s it.” Huero said, “Instead of just fucking going over there, just smoke that fool.” Rodriguez thought Huero was joking and laughed “because everybody clowns around like that.” Huero and G-Rocks drove away and turned on Hamilton Boulevard. As Rodriguez went back inside his house, he heard shots and thought “they were shooting at [his] cousin’s pad.” Rodriguez identified defendants to the detectives from six-packs of photographs and told the detectives that he was fairly certain that the car in the photograph they showed him (Sausedo’s car) was the car that came to his house the night of the shooting. He told the detectives that he thought the gun used was a .32- or .357-caliber revolver because of the number of shots fired and the absence of casings at the scene.
After the recording of his police interview was played at trial, Rodriguez admitted he had seen Sausedo’s car parked outside his house, then driving down Hamilton Boulevard.
Edgar Castillo testified that in March of 2008 he lived in the garage at Garcia’s house. Edgar knew Kevin Castillo from school. He also knew Jose Cervantes and had had arguments about “dumb stuff” with him, but no fistfights. On cross-examination, he admitted having “more than five, maybe,” “friendly fights” with Cervantes, and said Cervantes “probably knocked [him] out.” Edgar denied that he was a member of BSA and claimed he did not know whether Garcia and Rodriguez were members. He had heard of 420K but did not know who was in it. He claimed that he did not know either defendant, but had seen them around Pomona before and had seen Sausedo driving a white Camry. On cross-examination, he admitted knowing Sausedo from work.
Edgar Castillo remembered the shooting on March 12, but denied any knowledge of, or involvement in, a confrontation earlier that night. He heard three or four gunshots, with perhaps half a second between shots. He looked out his window, which faced toward the corner of Colony Drive and Hamilton Boulevard, and saw a dark car driving fast on Colony toward Hamilton. He could not see any people in the car, did not recognize the car, and did not know what kind of car it was. Edgar claimed not to remember speaking to any detectives or police officers about the shooting. He denied identifying any photographs.
A recording of Edgar Castillo’s interview with Detectives Kono and Turpin was played at trial. He told them that he heard five to seven shots and “peeked” out his window, which looked out onto Colony Drive. He saw Sausedo’s car driving past with the headlights off. Sausedo was driving and Heuro (Marquez) was the passenger in the front seat. Castillo also saw what might have been either a car seat or another person in the car. He identified a photograph of Sausedo’s car as the one he saw pass by after the shooting and identified defendants from photographic six-packs Castillo also told the detectives that three days after the shooting, Rodriguez admitted that he called Huero because “these guys got deep.” Huero went to Rodriguez’s house, drove around the block, and then shot Kevin.
Garcia testified that he, his brother Peter, and Rodriguez were members of BSA, but Edgar Castillo was not. BSA had about 10 members. The relationship between BSA and 420K was “neutral.” Kevin Castillo was “an old friend” who was formerly friendly with BSA, but then “changed” and started hanging out with 420K. Garcia no longer associated with Kevin, but did not have any problems with him. Garcia denied knowing either defendant and claimed not to remember anything about the shooting or the prior confrontation. He also did not remember anything he told the detectives and denied identifying anyone in photographs. But on cross-examination, Garcia testified that after he heard shots he looked through a window and saw a car drive past his house and turn right on Hamilton Boulevard.
A recording of Garcia’s interview with Detectives Kono and Turpin was played at trial. He told the detectives that “a guy came by trippin’,” and “got into it” with Edgar and Peter. When the guy drove past Garcia’s house, Garcia threw a phone and broke the guy’s car window. Garcia also told the detectives that he told Rodriguez about breaking the car window. Garcia thought Rodriguez must have called Huero (Marquez) because about 10 minutes later, Huero called Garcia’s house and asked for a ride so he could “‘come over and chill and see what was going on.’” Huero said he had heard about Garcia throwing the phone and said, “‘We need to come, go swoop ’em up.’” Neither Garcia nor any of his family members gave Huero a ride. About 30 minutes later, Rodriguez called Garcia and said that Huero was at his house. Rodriguez asked if “‘those fools [were] still trippin.’” Garcia told the detectives he looked through his window after he heard gunshots and a car skidding. He saw G-Rocks (Sausedo) driving fast past Garcia’s house in his 90’s-era, beat-up, long, dark green or dark blue, four-door car with Huero as his passenger. The car’s headlights were off. The car turned right from Colony Drive onto Hamilton Boulevard. Garcia did not see anyone else in the car. Garcia identified defendants from photographs and told the police that the photo of Sausedo’s car “kind of” looked like the car he saw drive past his house after the shooting.
Detective Kono testified that no casings were found at the scene. They found a single, unfired nine-millimeter bullet lodged in a crevice between the sidewalk and the driveway at the Cervantes house, but it was oxidized and appeared to have been there for some time. They also found a fresh skid mark near the middle of the street in front of the Cervantes house.
Detective Turpin testified that the car in photographs shown to witnesses was Sausedo’s car.
The parties stipulated that the Cherryville gang met the definition of a criminal street gang set forth in Penal Code section 186.22, subdivision (b). (All further statutory references pertain to the Penal Code unless otherwise specified.) Officer Steve Congalton testified that in June of 2007 he and his partner stopped a green Infiniti Q45 driven by Sausedo. Marquez was one of the passengers. At that time, Marquez admitted he was a member of the Cherryville gang, and Sausedo admitted having been an associate of the Cherryville gang for five years. Detective Lange opined that Marquez was a member of the Cherryville gang and Sausedo was an associate of the Cherryville gang. In response to a hypothetical based upon Rodriguez’s statement to the police, Lange testified that the shooting would have been committed for the benefit of the Cherryville gang because it would “reinstill the fear, intimidation, respect and retaliation [sic] for Cherryville.” It would not make any difference if some of the people in the group fired upon were not members of the 420K crew. Lange further opined that members of a tagging crew would place themselves and their families in danger by providing the police with information about a crime committed by their affiliated gang.
Defendants called no witnesses.
The jury convicted defendants of first degree murder with respect to Kevin Castillo and attempted murder with respect to Espinoza, Jimenez, and Romero. The jury found a shooting from vehicle special circumstance allegation (§ 190.2, subd. (a)(21)) true and found that each attempted murder was willful, deliberate, and premeditated. The jury further found that each crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members. The jury also found that in the commission of the offenses, each defendant personally and intentionally fired a gun, causing death, and personally used a gun. (§ 12022.53, subds. (b)–(d).) With respect to Sausedo, the jury further found that in the commission of the offenses, a principal intentionally fired a gun, causing death, and used a gun. (§ 12022.53, subds. (b)–(e).)
The court sentenced each defendant to life in prison without the possibility of parole, plus three consecutive life terms, plus 100 years to life.
DISCUSSION
1. Failure to instruct sua sponte upon involuntary manslaughter as a lesser included offense
Sausedo contends that the trial court erred by failing to instruct sua sponte upon involuntary manslaughter as a lesser included offense of murder. He argues that such an instruction was supported by substantial evidence that he drove Marquez “into 420K territory, which is an act that is ordinarily lawful, but involved a high degree of risk of death or great bodily harm and was committed without due caution or circumspection under the circumstances of this case . . . .”
A trial court must instruct sua sponte on a lesser included offense if there is substantial evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. (People v. Blair (2005) 36 Cal.4th 686, 745.) Substantial evidence in this context is “evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist.” (Ibid.)
An offense is necessarily included in another if either the statutory elements of the greater offense or the facts alleged in the accusatory pleading include all of the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser. (People v. Sanchez (2001) 24 Cal.4th 983, 988.)
Involuntary manslaughter is the unlawful killing of a person “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) Involuntary manslaughter is a lesser included offense of murder. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) The statutory definition of involuntary manslaughter expressly excludes “acts committed in the driving of a vehicle.” Sausedo’s theory of involuntary manslaughter is expressly based upon his acts committed in driving his car, and he does not address this statutory bar. Sausedo’s reply brief admits he was not “potentially liable for vehicular manslaughter” because Castillo died from a gunshot wound, not Sausedo’s “vehicle or the manner in which he drove it.”
Even if an involuntary manslaughter theory were somehow applicable to Sausedo’s act of driving, the record does not include substantial evidence that, if accepted by the trier of fact, would absolve the defendant of murder, but not of involuntary manslaughter. Sausedo was an admitted associate of the Cherryville gang. Although there was no direct evidence of Sausedo’s knowledge and intent regarding the shooting, these elements were shown by the circumstances of the crime. Sausedo did not simply drive “into 420K territory,” but drove Marquez to Rodriguez’s house (on Manor Circle), then circled back around past the Cervantes house by turning from Manor Circle onto Hamilton Boulevard, then onto Colony Drive, then back onto Manor Circle. With the headlights of his car turned off, he turned the car around and drove to the Cervantes home, stopped directly in front of the driveway, and stayed there while Marquez drew a gun and fired at least four shots. Although the jury theoretically could have rejected the theory that this evidence showed Sausedo’s knowledge and intent to aid and abet Marquez in shooting at people in the neighborhood, nothing in the record would permit the jury to conclude further that Sausedo nonetheless understood that his driving “involved a high degree of risk of death or great bodily harm and was committed without due caution or circumspection,” as Sausedo argues. In essence, the evidence showed that Sausedo was either an aider and abettor to murder, or not guilty. Accordingly, the trial court was not required to instruct upon the inapplicable theory of involuntary manslaughter.
2. Failure to instruct sua sponte regarding accomplice testimony
Sausedo’s attorney initially requested accomplice instructions, then withdrew his request with the agreement of counsel for Marquez. Defendants now contend that Rodriguez, Garcia, and Edgar Castillo were accomplices, and the trial court was required to instruct sua sponte that their testimony and statements to the police required corroboration and should be viewed with caution, using, for example, CALCRIM No. 334.
An accomplice is one who is subject to prosecution for the same offense as the defendant. In order to be chargeable with the identical offense, the witness must be considered a principal under section 31, that is, persons who directly commit the offense, who conspire to commit the offense, who aid and abet in its commission, or who advise and encourage its commission. (People v. Fauber (1992) 2 Cal.4th 792, 833.) Whether a person is an accomplice is a question of fact, unless there is no dispute as to either the facts or the inferences to be drawn from the facts. (Id. at p. 834.) The defendant must prove, by a preponderance of the evidence, that a witness is an accomplice. (Ibid.)
The testimony of an accomplice must be corroborated by other evidence connecting the accused with the commission of the crime. (§ 1111.) The required corroborative evidence need not corroborate every fact to which the accomplice testified, but is sufficient if, without assistance of the accomplice’s testimony, it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. (People v. Lewis (2001) 26 Cal.4th 334, 370 (Lewis).) It must relate to some act or fact that is an element of the crime, but it need not establish every element. (People v. Williams (1997) 16 Cal.4th 635, 680–681.) It may be slight, entirely circumstantial, and entitled to little consideration when standing alone. (Id. at p. 681; Lewis, at p. 370.)
Where there is substantial evidence that a witness is an accomplice, the trial court must instruct sua sponte on the corroboration requirement. (Lewis, supra, 26 Cal.4th at p. 369.) In addition, the jury must be told that an accomplice’s statement or testimony that tends to incriminate a defendant should be viewed with caution. (People v. Guiuan (1998) 18 Cal.4th 558, 564.)
Defendants argue that Rodriguez, Garcia, and Edgar Castillo were accomplices because the evidence supported a finding they were in the car with defendants at the time of the shooting. Defendants are wrong. No evidence showed that Rodriguez, Garcia, or Edgar Castillo was in the car. This contention is based upon nothing more than speculation regarding which car was used, how the three witnesses might have behaved given their motive and prior conduct, and their statements to the police more than a month after the crimes indicating knowledge about aspects of the crimes.
Defendants also argue that Rodriguez, Garcia, and Edgar Castillo facilitated, promoted, encouraged or instigated the shooting when Rodriguez summoned gang member Marquez to come to the neighborhood “to become involved in the escalating situation between BSA and 420K.” This theory has arguable merit with respect to Rodriguez, but not with respect to Garcia or Edgar Castillo. Nothing except speculation indicates that Garcia or Edgar Castillo played any role in getting Marquez involved in the “escalating situation.”
If the trial court erred by failing to give accomplice instructions and instruct the jury to determine whether Rodriguez was an accomplice, such error was harmless. The statements of Garcia and Edgar Castillo provided ample corroboration that connected both defendants to the crimes and indicated the truth of Rodriguez’s statement to the police. Garcia told the police that Marquez called him to ask for ride and said he wanted to come over. About half an hour later, Rodriguez called Garcia, said that Marquez was at Rodriguez’s house, and asked if “‘those fools [were] still trippin.’” Garcia and Edgar Castillo told the police that just after they heard shots, they each looked out a window and saw Sausedo’s car driving past with the headlights off. Sausedo was driving and Marquez was the passenger in the front seat. In addition, Cervantes testified that just after the gunfire ended he saw a dark-colored car that looked similar to the photograph of Sausedo’s car driving away from his house, and no other cars were driving in the neighborhood at the time. Espinoza testified that a dark-colored car that looked similar to the photograph of Sausedo’s car pulled up in front of the Cervantes home’s driveway, and the passenger began shooting. He also testified that no other cars were driving in the neighborhood at the time. Given the abundant corroboration of Rodriguez’s statement, the trial court’s failure to instruct on the requirement of corroboration of an accomplice’s statement or testimony was harmless. (Lewis, supra, 26 Cal.4th at p. 370.)
The failure to instruct the jury to view Rodriguez’s statement with caution was equally harmless because the statements by Garcia and Edgar Castillo and testimony by Cervantes and Espinoza provided strong evidence that not only established defendants’ identity as the perpetrators, but also substantially supported the veracity of Rodriguez’s statement. It is not reasonably probable defendants would have obtained a more favorable verdict if the trial court had also instructed the jury to view Rodriguez’s statements incriminating defendants with caution. (Lewis, supra, 26 Cal.4th at p. 371.)
3. CALCRIM No. 521
The trial court instructed the jury with CALCRIM No. 521 as follows: “If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The defendant has been prosecuted for first degree murder under two theories: (1) the murder was willful, deliberate, and premeditated and (2) shooting a firearm from a motor vehicle. [¶] Each theory of first degree murder has different requirements, and I will instruct you on both. [¶] You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder. But all of you do not need to agree on the same theory. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. [¶] The defendant is guilty of first degree murder if the People have proved that the defendant murdered by shooting a firearm from a motor vehicle. The defendant committed this kind of murder if: [¶] 1. He shot a firearm from a motor vehicle; [¶] 2. He intentionally shot at a person who was outside the vehicle; [¶] AND [¶] 3. He intended to kill that person. [¶] . . . [¶] All other murders are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.” (Italics added.)
Defendants contend that the portion of CALCRIM No. 521 italicized in the preceding paragraph erroneously allowed the jury to convict them of first degree murder without a unanimous finding that they committed first degree, as opposed to second degree murder.
Purportedly erroneous instructions are reviewed in the context of the entire charge to determine whether it is reasonably likely the jury misconstrued or misapplied the challenged instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016–1017.)
Read in context, there is no reasonable likelihood that the jury would conclude it could convict either defendant of first degree murder even though some jurors believed that the defendant was guilty of only second degree murder. The instruction initially told the jury that if it found that the defendant committed murder, it then had to determine whether he committed first or second degree murder. It then informed the jury that there were two theories leading to a first degree murder verdict, each with differing requirements. The instruction never referred to second degree murder as a “theory.” Thus, the reference to not agreeing on the “same theory” clearly referred to the two theories of first degree murder. Immediately after the portion in controversy, the instruction explained the elements of each of the two theories of defendants’ guilt of first degree murder. After the first sentence, second degree murder was not mentioned again until the end of the instruction, when it was presented as the default option if the jury found the prosecutor did not meet his burden of proving all of the elements to establish one of the two theories of first degree murder. Given the structure of the instruction, the context of the provision in controversy, the extensive discussion of the elements of each theory of first degree murder, and the context-specific provision regarding the prosecution’s burden of proving “that the killing was first degree murder rather than a lesser crime,” no reasonable juror would understand that the jury could return a first degree murder verdict if some or all jurors found the crime to be second degree murder.
This conclusion is reinforced by the jury’s true findings on the shooting from a vehicle special circumstance allegations and the instructions regarding that special circumstance. CALCRIM No. 700 told the jury that it should make a finding on the special circumstance “[i]f you find defendant guilty of first degree murder . . . .” Similarly, CALCRIM No. 702 began, “If you decide that a defendant is guilty of first degree murder but was not the actual killer . . . .” The jury’s true findings on the special circumstance allegations establish that the jury found each defendant committed first degree murder on a theory of shooting from a vehicle. Given the special circumstance instructions and findings, there was no possibility that some jurors found the crime to be second degree murder.
4. CALCRIM No. 600
The trial court also instructed with CALCRIM No. 600, which provided, in pertinent part, “The defendant is charged in Count[s] 2, 3, and 4 with attempted murder. [¶] To prove that a defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person. [¶] . . . [¶] A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or ‘kill zone.’ In order to convict a defendant of the attempted murder of Alejandro Jimenz [sic], Michael Espinoza, and Armando Romero Jr., the People must prove that the defendant or perpetrator not only intended to kill Kevin Castillo but also either intended to kill Alejandro Jimenz [sic], Michael Espinoza, and Armando Romero Jr., or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Alejandro Jimenz [sic], Michael Espinoza, and Armando Romero Jr. or intended to kill Kevin Castillo by killing everyone in the kill zone, then you must find the defendant not guilty of attempted murder of Alejandro Jimenz [sic], Michael Espinoza, and Armando Romero Jr.”
Defendants contend that the references to “anyone,” rather than “everyone,” in the “kill zone” portion of the instruction incorrectly described the requisite intent. They cite People v. Stone (2009) 46 Cal.4th 131 (Stone), in which the California Supreme Court noted that “any possible ambiguity [in CALCRIM No. 600] can easily be eliminated by changing the word ‘anyone’ to ‘everyone.’” (Id. at p. 138, fn. 3.) But the Stone court did not conclude that this ambiguity rendered CALCRIM No. 600 erroneous. It instead noted that “[i]n context, a jury hearing about the intent to kill anyone within the kill zone would probably interpret it as meaning the intent to kill any person who happens to be in the kill zone, i.e., everyone in the kill zone.” (Ibid.)
CALCRIM No. 600 properly informed the jury of the elements of attempted murder, including the requirement of a specific intent to murder the victim. “The ‘kill zone’ portion of CALCRIM No. 600 was superfluous. That theory ‘is not a legal doctrine requiring special jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.’” (People v. Campos (2007) 156 Cal.App.4th 1228, 1243, quoting People v. Bland (2002) 28 Cal.4th 313, 331, fn. 6.) In addition, the “kill zone” portion of the instruction was “not necessarily inconsistent with Bland.” (Campos, at p. 1243.) Although it used “anyone” in the first two sentences of the “kill zone” paragraph, the final sentence told the jury that it could not find a defendant guilty of killing Jimenez, Espinoza, and Romero unless it either found that the defendant “intended to kill” the named victims “or intended to kill Kevin Castillo by killing everyone in the kill zone . . . .” “This language is consistent with Bland and directed the jury that it could not find [defendants] guilty of attempted murder of [the victims] under a ‘kill zone’ theory unless it found that he intended to harm ‘everyone’ in the zone.” (Campos, at p. 1243.)
In addition, as Stone noted, the jury would probably interpret the instruction as requiring an intent to kill everyone in the kill zone. (Stone, supra, 46 Cal.4th at p. 138, fn. 3.) “[I]n the context presented here, there is little difference between the words ‘kill anyone within the kill zone’ and ‘kill everyone within the kill zone.’ In both cases, there exists the specific intent to kill each person in the group. A defendant who shoots into a crowd of people with the desire to kill anyone he happens to hit, but not everyone, surely has the specific intent to kill whomever he hits, as each person in the group is at risk of death due to the shooter’s indifference as to who is his victim.” (Campos, supra, 156 Cal.App.4th at p. 1243.) Marquez was firing from a car stopped in the street in front of the Cervantes driveway. He fired at least four shots at a group of people who were standing very near one another in that driveway. Jimenez testified that he, Kevin Castillo, Espinoza, and some other people were standing in the driveway. Our review of the photographs of the Cervantes home admitted at trial reveals that the driveway was not unusually long or wide. Cervantes’s truck was occupying part of the driveway at the time of the shooting, and Jimenez, Espinoza, Kevin Castillo, and others were standing close together, next to the truck when shots were fired. Cervantes testified that Romero was part of the group standing near the truck. Absent evidence that Marquez was an expert marksman, each of the named victims and everyone else who was standing in the driveway near the truck was within the “kill zone.” Under the circumstances, and given the likely interpretation of the instruction, as noted in Stone, it is not reasonably probable that the jury would have misconstrued or misapplied CALCRIM No. 600.
Defendants further argue that the prosecutor’s argument “reinforced and compounded the instructional error . . . .” A review of the argument in question undermines this theory. The prosecutor referred to the kill zone theory, then explained, “What this says is that if someone comes up to a group of people, even if they’re only intending to kill one person in the group, if they start firing shots at that group of people, primarily even if they’re just focusing on one target, if they’re intending to kill anybody around that one person in order to get the job done, they they’re guilty of attempted murders of those other individuals. [¶] If you have people close together in the zone of harm and you’re shooting into that group, intend to kill anybody to make sure you get the one specific person, and then you’re guilty of all those attempted murders.” The argument was consistent with the wording and meaning of CALCRIM No. 600. As with the instruction itself, the prosecutor’s two references to “anybody,” in the context of the prosecutor’s argument, would probably be interpreted to mean an intent to kill everyone in the group. Nothing about the prosecutor’s argument made it more likely that the jury would misconstrue or misapply CALCRIM No. 600.
At oral argument, counsel for Sausedo raised the applicability of People v. Perez (2010) 50 Cal.4th 222. Perez did not discuss the validity of CALCRIM No. 600, but instead found the evidence insufficient to support seven of eight counts of attempted murder where the defendant fired a single shot from a moving car 60 feet away. Perez is factually distinguishable from the present case, and in no way alters our analysis of defendants’ instructional error claim.
5. Cumulative error
Defendants contend that the cumulative prejudicial effect of the various individual errors they have raised on appeal requires reversal of the judgment. Their cumulative error claim has no greater merit that their individual assertions of error, which we have either rejected or determined to be harmless.
6. Section 12022.53 enhancements
The information alleged personal firearm use under section 12022.53, subdivisions (b) through (d) against Marquez, but the section 12022.53 allegations against Sausedo were based upon a principal’s use of a gun in a crime committed for the benefit of a gang under subdivisions (b) through (e). The verdict forms for Sausedo erroneously included options for finding both personal use, and use by a principal, and the jury found all of the section 12022.53 allegations true with respect to Sausedo. The trial court acknowledged the error and promised to strike the inapplicable personal use findings, but failed to do so. Sausedo’s abstract of judgment reflects enhancements under section 12022.53, subdivision (d), not subdivisions (d) and (e), as it should.
Sausedo contends, and the Attorney General concedes, that the personal gun use findings against Sausedo should be stricken. The parties also agree that Sausedo’s abstract of judgment must be amended to reflect that his section 12022.53 enhancements were imposed under subdivisions (d) and (e). We strike the personal use findings against Sausedo and order issuance of an amended abstract of judgment for Sausedo.
The Attorney General contends, and Sausedo agrees that the trial court should have imposed and stayed—not stricken—the shorter-term enhancements under section 12022.53, subdivisions (b) and (c) for Marquez and section 12022.53, subdivisions (b), (c), and (e) for Sausedo. In accordance with People v. Gonzalez (2008) 43 Cal.4th 1118, 1122–1123), we impose and stay the shorter enhancements and direct amendment of defendants’ abstracts of judgment.
7. Additional errors on the abstract of judgment
Sausedo contends, and the Attorney General concedes, that Sausedo’s abstract of judgment also requires correction to reflect that he was sentenced to life, not 15 years to life, in counts 2 through 4.
DISPOSITION
Defendant Sausedo’s judgment is modified as to counts 1 through 4 as follows: (1) all personal firearm use findings under Penal Code section 12022.53, subdivisions (b) through (d) are stricken; and (2) the firearm use by a principal enhancements under Penal Code section 12022.53, subdivisions (b), (c), and (e) are imposed and stayed. The superior court is directed to issue an amended abstract of judgment for reflecting (1) the modifications set forth in the prior sentence; (2) that his Penal Code section 12022.53 enhancements for counts 1 through 4 are imposed under subdivisions (d) and (e); and (3) that his sentence on counts 2 through 4 is life, rather than 15 years to life. The judgment is otherwise affirmed.
Defendant Marquez’s judgment is modified as to counts 1 through 4 as follows: the enhancements under Penal Code section 12022.53, subdivisions (b) and (c) are imposed and stayed. The superior court is directed to issue an amended abstract of judgment reflecting this modification. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
CHANEY, J.
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