P. v. Fuentes

Filed 4/7/10 P. v. Fuentes CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael A. Latin, Judge. Affirmed as modified.

John A. Colucci, 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, Michael R. Johnsen and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

______________

A jury convicted Erick Fuentes (appellant) of one count of first degree murder (count 1; Pen. Code, 187, subd. (a))[1] and three counts of willful, deliberate, and premeditated attempted murder (counts 2-4; 664; 187, subd. (a)). As to all counts, the jury found true allegations that appellant personally and intentionally discharged a firearm that caused great bodily injury and death ( 12022.53, subds. (b)(d)), and that appellant committed the offense for the benefit of, at the direction of, and in association with, a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members ( 186.22, subd. (b)(1)(C)).

The trial court orally pronounced appellants sentence as follows: on count 1, 25 years to life for the first degree murder plus 10 years for the gang enhancement and 25 years to life for the firearm enhancement; on count 2, 15 years to life for the premeditated attempted murder plus 20 years to life for the firearm enhancement; on count 3, 15 years to life for the premeditated attempted murder plus 25 years to life for the firearm enhancement; on count 4, 15 years to life for the premeditated attempted murder plus 25 years to life for firearm enhancement.

Appellant contends the trial court committed reversible error by: (1) denying appellants motion for a mistrial, or in the alternative, a new jury panel, after comments by prospective jurors during voir dire tainted the final jury panel; (2) chilling the expression of juror bias during voir dire; (3) trivializing the reasonable doubt standard and shifting the burden of proof on appellant during voir dire; (4) instructing the jury with CALCRIM No. 600 on the attempted murder counts; and (5) not reading an inadvertently omitted instruction on voluntary intoxication. Appellant also contends that he received ineffective assistance of counsel, that the trial court erroneously imposed a 10-year gang enhancement on count 1, that the trial court inadvertently imposed a 20-year, and not a 25-year, firearm enhancement on count 2, and that the abstract of judgment contains clerical errors.

The People agree that the 10-year gang enhancement was erroneously imposed on count 1. Additionally, the People contend that the trial court should have imposed $80, and not $20, in court security fees on appellant.

We strike the 10-year gang enhancement imposed by the trial court on count 1, modify the judgment to reflect a firearm enhancement of 25 years to life, and not 20 years to life, on count 2, correct clerical errors in the abstract of judgment, and impose $80 in court security fees. We affirm the judgment in all other respects.

BACKGROUND

I. The Shooting

On July 29, 2006, appellant and Rene Sanchez (Sanchez), both members of the Brown Pride Sureos gang, were at a house party in Canoga Park.[2] Approximately 50 partygoers congregated inside the house and outside in a backyard adjacent to the house. When Sanchez and appellant were standing outside, a man approached them and asked: Where are you guys from? Appellant replied that they were members of the Brown Pride Sureos gang and the man returned inside the house.[3] Appellant and Sanchez left the party and met up with two acquaintances, Armando Yera (Yera) and Dennis Nefedov (Nefedov), and two women. All six individuals drove back to the party in Yeras car. Yera was driving and appellant was in the front seat giving him directions to the party. When they arrived, appellant exited the car and approached the backyard. There were several accounts of what occurred next.

Sanchez testified, under a grant of immunity, that appellant shouted Whose party is this? and then began shooting randomly at the people standing outside. Sanchez heard five to 10 shots. Appellant returned to the car, Nefedov yelled Brown Pride Sureos, and the group drove off.

Nefedov testified, under a grant of immunity, that appellant approached the backyard. A man, later identified as Renato Martinez (Martinez), was standing by a gate that enclosed the backyard. Martinez stopped appellant from proceeding further and they began arguing. Martinez insulted appellants mother. From a distance of three feet, appellant pulled out a gun and began shooting Martinez. Nefedov heard one loud pop and saw three to four white flashes from the gun. Appellant returned to the car and someone at the party yelled out Canoga Park Alabama. Both appellant and Nefedov yelled Brown Pride in response and the group drove off. According to Nefedov, as they were driving away from the scene, appellant said to Sanchez: Oh, shit, I think I got him, I think I dropped him.

Jose Pena (Pena) testified that he was standing next to Martinez when he saw a car approaching. The car stopped and a man from the backseat exited the car and asked: Whose party is this? Pena then saw the man reaching for something in his waistband. Pena immediately dove to the ground. Pena heard two to three gunshots and later saw Martinez lying on the ground. Pena identified a photograph of appellant as someone who looked like the shooter. At trial, however, Pena could not positively identify appellant as the shooter.

Officers recovered five spent .40-caliber casings from the shooting scene, all of which were from the same manufacturer.

II. The Victims

Los Angeles Police Officer (LAPD) Joshua Lukaszewski and his partner responded to the scene shortly after the shooting and saw numerous people fleeing in all directions. Officer Lukaszewski testified that he saw a man, later identified as Martinez, on the ground covered with blood. Martinez was unresponsive and appeared lifeless. A deputy medical examiner testified that Martinez had sustained five gunshot wounds from a distance of two to two and a half feet, and had died from those wounds.

Officer Lukaszewski further testified that Jesus Cabrera, a member of the Canoga Park Alabama gang who was also at the party, had received a gunshot wound and went to the hospital on his own.

Daniel Hernandez (Hernandez) was at that party standing outside with six of his friends when he saw flashes and heard four to five gunshots. Hernandez was shot in his lower calf.

Manuel Galvan (Galvan) was standing near Hernandez when he heard gunshots. Galvan was shot in his left upper thigh.

III. Recovery of the Weapon and Appellants Arrest

The next day, Yera and Sanchez were driving around in Yeras car when police officers stopped them. The officers searched the car and found a Glock .40-caliber semiautomatic firearm hidden in a compartment behind the front air vents. The gun was loaded with a magazine containing nine live rounds. Officers also found a pair of thin white cotton gloves in the car. Yera told the officers that the gun belonged to him and that he had purchased it for $300. By stipulation, an LAPD criminalist testified that the gun found in Yeras car was the firearm that fired the five casings found at the scene of the shooting.

On August 16, 2006, LAPD Officer Christian Mayes arrested appellant and transported him to the West Valley police station. While appellant was in the stations holding cell, appellant struck his head against a cell wall and a fiberglass window multiple times. When officers learned that appellant was doing this, they entered his cell, restrained him, and transported him to the hospital per department policy. While at the hospital, appellant revealed to Officer Mayes that he attempted to injure himself in order to get transferred to a hospital with the goal of escaping from police custody.

On September 24, 2006, appellant received a visit from his older brother, Jose Hernandez,[4] while appellant was in custody.[5] A recording of the conversation between the brothers was played to the jury. In the recording, appellant told his brother that Nefedov need[ed] to not show up and that nothing [would] happen to [Nefedov] if he [didnt] show up. Appellant went on to instruct his brother to tell Nefedov just move out of town. Appellants brother agreed and informed appellant that he knew Nefedovs address and where to find him. Appellant then told his brother that he intended to tell his attorney that Yera had kicked appellant out of Yeras car before the shooting occurred because of an argument. Appellant and his brother agreed that such an explanation add[ed] up to . . . what the other . . . vatos [were] saying . . . . Appellants brother called the prosecutions witnesses liars and appellant responded that the witnesses disliked him because he was with some girl that they liked.

IV. Gang Evidence

LAPD Officer Mark Kilgrow, the prosecutions gang expert, testified that at the time of the shooting, appellant was a member of the Brown Pride Sureos gang and that a major rival was the Canoga Park Alabama gang. In Officer Kilgrows opinion, appellants act of shooting at partygoers in rival territory benefitted the Brown Pride Sureos gang because it boosted the gangs status in the gang community and sent a message to other gangs that it was not afraid of inflicting violence against its rivals.

V. Defense Evidence

LAPD Officer Dennis Cunningham testified that he spoke with George Santos (Santos), who had attended the party with Pena, shortly after the shooting. According to Officer Cunningham, Santos told him that he saw the following: a car had pulled up to the party, the driver exited the car, asked who was throwing the party, and then began shooting at the crowd.

Santos, however, testified that he was inside the house when the shooting occurred and did not see either the shooter or the car that the shooter arrived in. According to Santos, the information that he gave to Officer Cunningham was based on statements that Pena had made to Santos after the shooting occurred.

DISCUSSION

I. Denial of Motion for Mistrial/New Jury Panel

A. Appellants Argument

Appellant argues that the trial court committed reversible error when it denied his motion for a mistrial, or in the alternative, a new jury panel. According to appellant, inflammatory comments by some prospective jurors irreparably tainted the final jury panel.

B. Summary of Voir Dire Proceedings[6]

Prospective Juror No. 1 stated that she could not be impartial because she was somewhat prejudiced against illegal immigrants and suspicious of them. The trial court informed her that the underlying case had nothing to do with illegal immigrants. The juror replied that knowing this made her feel possibly better. Both parties subsequently stipulated to the excusal of this prospective juror.

Prospective Juror No. 2, stated that he believed appellant was probably guilty as charged because police officers would not just arrest anybody for a hideous crime like murder[.] The trial court asked the juror whether he could wait to hear the evidence before making a guilt determination and he replied: Its just I am somewhat biased just because of the nature of the crime. Later during voir dire proceedings, Prospective Juror No. 2 stated that two friends, who were both attorneys, told him that 80 percent of the cases are decided by the jurors in the first 45 seconds of the trial and that in almost all the criminal cases[,] the defendant is guilty. He went on to state his belief that there was nothing lower than being a gang member, that gang members were like internal terrorist[s] [because] they terrorize their neighborhood[s], and that gang members by default are guilty. Both parties subsequently stipulated to the excusal of this prospective juror as well.

Prospective Juror No. 4 stated that she could not be impartial because drive-by gang shootings were responsible for one friends paralysis and another friends death. Also, as a Seventh Day Adventist, she explained that her religion prohibited her from passing judgment on another person. Both parties stipulated to her excusal.

Prospective Juror No. 4-b, i.e., the prospective juror that replaced the original Prospective Juror No. 4, stated that he was totally against gang[s], believed that the LAPD was one of the best [police departments] in the world, and had negative opinions about lawyers who represent criminal gang members[.] Additionally, he questioned the trial court about why it took so many breaks. Both parties subsequently stipulated to the excusal of this prospective juror.

Prospective Juror No. 14 stated that he was very opinionated and intended to make an opinion [about appellant] really quick and was going to stick to whatever opinion he made. The prospective juror went on to state that he believed appellant was guilty because of his eyes. The trial court stated that it appreciate[d] the prospective jurors comments and reminded the prospective jury panel that its incredibly important that we go through . . . this with everybody, so we make sure that somebody who has those opinions and is incapable of deciding the case based on the evidence, doesnt end up on the jury. Outside the presence of the prospective juror panel, the trial court described this prospective jurors behavior as abysmal, horrendous, and disrespectful. Both parties subsequently stipulated to the excusal of this prospective juror.

Prospective Juror No. 17 stated he would be unable to judge the evidence fairly given his personal background. He explained that 26 years ago, he started a support group to help parents cope with the impact of gang violence on their families. He was very biased against gang members having seen the results of what the gang members have done to the families that I have been dealing with in the last 26 years. The prospective juror went on to say: If I had any way of breaking up every gang and perhaps putting every gang member in prison or in a desert retreat somewhere where they can spend the rest of their lives, I would do it. I would do it. I cant believe that gangs have been going on for as long as they have gone on. I dont see it getting any better. I see these problems getting worse. After this statement, one unidentified prospective juror said: Here. Here. The trial court admonished the prospective jury panel, stating: Please, this isnt the gospel church.

Prospective Juror No. 17 went on to state: Ive seen the repercussions, Ive dealt with kids who have been molested, dealt with the rapes. Ive dealt with the murders, Ive dealt with all these things in the last 26 years. Im not a goodI would love to serve on the jury, I really was coming here hoping I would get jury duty, and I thought that it would be kind of interesting, but not in a gang one. The trial court explained to the prospective juror that his task would be to decide whether appellant was guilty of the charged crimes, not to decide whether he approved of appellants lifestyle. The prospective juror responded: Belonging to a gang, to me, is a crime. And anything related to the attendance of a member of a gang, to me, is [] evidence of guilt. Its just guilty. . . .  Even if [appellant] is completely innocent of the murder, he is still involved in the gang, and the gang, to me, that one goes with the other, just goes with the other. After that statement, an unidentified juror began clapping. The trial court called for the clapping to stop. The parties stipulated to Prospective Juror No. 17s excusal. Additionally, the trial court excused the prospective juror who had clapped.

After excusing Prospective Jurors 1, 2, 4, 4-b, 14, and 17, and replacing them with new prospective jurors, the trial court addressed the remaining prospective juror panel with the following comments:

I want to talk a little bit with all of you about Friday. I think you know from the comments I made at the end of the day how disappointing and disheartening the session was for me.

Ive seen . . . hundreds of juries, [and] I have never seen a group as bad as the group that just left the courtroom. Ive never seen it. Ever. Usually people are pretty respectful, and pretty honest. I was a little astounded.

The attorneys, I think, are concerned. And I am, too, that, thatsomehow the attitude expressed and the views expressed might have some spill-over effect on everybody else. What I want to make sure is, that nobody ishas been affected by what they saw on Friday to an extent that theres this gang mentality in the room, everybody just wants to get the defendant.

Does anybody feel that because of the views expressed by other people and the overall tenor of the discussion on Friday, that this is not a place they think they can be fair in, or that they feel their objectivity has been compromised in any way? And you can let me know if its true. I just want honest responses.

None of the remaining prospective jurors indicated that the statements made by the excused jurors had influenced their ability to judge the evidence fairly and impartially. The trial court followed up with: I do want you to be honest. Trust me. Im not going to look unfavorably upon you if you tell me your honest opinion, but I want those opinions to be genuine. And you saw it, there were some people who had genuine opinions. Again, none of the prospective jurors indicated an unwillingness or inability to judge the evidence fairly.

After voir dire continued, Prospective Juror No. 3 stated that he could not judge the evidence fairly because he believed that all gang members were guilty already. The parties stipulated to his excusal. Two other prospective jurors, Nos. 14-b (i.e., newly seated after the excusal of No. 14) and 16, both stated that they had family members who had been attacked by gang members. When asked by the trial court whether she could set aside her emotional feelings about the personal incident, and let the facts dictate the result in appellants case, Prospective Juror No. 14-b stated that she could set aside her feelings and be fair and impartial in deciding the evidence. Likewise, when asked by the trial court whether she could put aside whatever feelings she had about her prior experience with gang members and judge the case fairly, Prospective Juror No. 16 stated that she could do so.

C. Relevant Authority

A defendant has a constitutional right to a fair and impartial jury. (People v. Martinez (1991) 228 Cal.App.3d 1456, 1459 (Martinez).) But in general, discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant. (People v. Medina (1990) 51 Cal.3d 870, 888 (Medina).)

The denial of a motion for a mistrial is reviewed by an abuse of discretion and should be granted only when a partys chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282.) Likewise, we review the denial of a motion to dismiss the venire for an abuse of discretion. (Martinez, supra, 228 Cal.App.3d at pp. 14661467.) [T]he trial judge is in a better position to gauge the level of bias and prejudice created by juror comments. (Id. at p. 1466.) Therefore, the trial courts conclusion on jury bias and prejudice is entitled to great deference and is reversed on appeal only upon a clear showing of abuse of discretion. (Ibid; Medina, supra, 51 Cal.3d at p. 889 [We believe the trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required].)

D. Analysis

Here, when appellant made his first motion for mistrial, the trial court found that even though it was a bad panel[,] it was not an irreparably tainted panel. The trial court went on to explain that there were plenty of prospective jurors who were not affected by those [biased] comments and [who] know by example now that those [biased] views and those attitudes are not the views and attitudes that somebody that can be a fair and impartial juror, should have. When appellant made his second motion for mistrial, and in the alternative, a motion to discharge the entire venire, the trial court found that granting either motion was unwarranted because after the excusal of the biased jurors, there [were] still some good people left, and that it would simply be more time consuming to voir dire other prospective jurors.

We conclude that the trial court did not abuse its discretion. As noted in the summary above, all of the jurors who made biased remarks against appellant were ultimately excused from the final jury panel. Moreover, once they were excused, the trial court conducted additional voir dire and specifically asked the remaining prospective jurors whether any comments by the excused jurors affected their ability to view the evidence impartially and fairly. None of the prospective jurors indicated that comments by the excused jurors had affected them. Additionally, the trial court asked the prospective jurors numerous times whether they could assess the evidence against appellant fairly despite their suspicions about his membership in a gang. All the prospective jurors that remained on the panel stated that they could do so, even if they were not necessarily in favor of gangs.

Medina, supra, 51 Cal.3d 870, is instructive. In Medina, the defendant was charged with three counts of murder. During voir dire, five prospective jurors made biased and inflammatory remarks against the defendant, including even his own lawyers think hes guilty, they ought to have [sic] him and get it over with[,] and bring the guilty S.O.B. in, well give him a trial, and then hang him. (Id. at pp. 888889.) The jurors who made these comments were excused from the final jury panel, and the remaining prospective jurors affirmed their abilities to be fair and impartial. (Id. at p. 889.) The Supreme Court affirmed the trial courts denial of the defendants request for a new jury panel, explaining: We believe the trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required. Defendant cites no case, and we have found none, indicating that such a drastic remedy is appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks. (Ibid.) The Supreme Court went onto state that discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, and the case [fell] short of that mark. (Ibid.)

Like Medina, the offending prospective jurors in the present case were ultimately excused and the remaining prospective jurors affirmed their abilities to be fair and impartial. If the biased and inflammatory statements made in Medina did not warrant the drastic remedy of discharging the entire venire, then the statements made in this case, which in our view were not as biased or inflammatory, certainly would not justify such a remedy.

Appellant likens his case to Mach v. Stewart (9th Cir. 1998) 137 F.3d 630 (Mach), but that case is distinguishable. In Mach, the defendant was charged with sexual conduct with a minor under 14 years of age. During voir dire, the trial court allowed a prospective juror, a social worker with years of experience working with victims of sexual abuse, to state four times that she had never encountered a case in which a child had lied about being sexually assaulted. (Id. at p. 632.) The prospective juror went on to state that she had worked extensively with psychiatrists and psychologists, and that she also had experience in child psychology. (Ibid.) The Ninth Circuit Court of Appeals held that the prospective jurors comments had irreparably tainted the venire because they were expert-like given the nature of [the jurors] statements, the certainty with which they were delivered, the years of experience that led to them, and the number of times that they were repeated. (Id. at p. 633.)

In contrast, no such expert-like statements were made in this case. Prospective Jurors Nos. 1, 2, 3, 4, 4-b, and 14 certainly articulated a bias against gang members, but in no way did they profess to be experts. They were simply lay persons who were apt to assume guilt based on gang membership. As for Prospective Juror No. 17, while he may have been an expert on the impact of gang violence on family members through his support group, he was certainly no expert on the psychological propensity of gang members to commit murder, or the veracity of the witnesses who testified against appellant.[7]

In sum, we conclude the trial court did not abuse its discretion in denying appellants motion for a mistrial, or in the alternative, to discharge the entire venire.

II. Trial Courts Remarks Toward Offending Jurors

A. Appellants Argument

Appellant contends that the trial courts aggressive questioning of jurors during voir dire and the contempt cites chilled the free expression of legitimate bias by the prospective jury panel thereby depriving appellant of his right to due process of law, to a fair trial and to an unbiased jury.

B. Summary of Proceedings Below

The trial court held contempt proceedings for Prospective Jurors No. 1, the person who said that she was prejudiced against all illegal immigrants, No. 2, who said that 80 percent of cases are decided by the jurors in the first 45 seconds of the trial and that in almost all the criminal cases, the defendant is guilty, No. 4-b, who questioned the trial courts decisions on when to take breaks, and No. 14, who stated that he believed appellant was guilty because of his eyes. The contempt proceedings were held outside the presence of the other prospective jurors. Ultimately, the trial court did not hold any of the offending jurors in contempt.

C. Relevant Authority

The Constitution . . . does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury. (People v. Tafoya (2007) 42 Cal.4th 147, 168.) [T]he trial court is given wide latitude to determine how best to conduct the voir dire . . . . (Ibid.) Furthermore, the exercise of discretion by trial judges with respect to the particular questions to ask and areas to cover in voir dire is entitled to considerable deference by appellate courts. (People v. Taylor (1992) 5 Cal.App.4th 1299, 1313.)

D. Analysis

Based on our review of the record, we conclude that the trial courts questioning of the prospective jurors during voir dire did not chill their expression of bias. The trial court stated numerous times that its task during voir dire was to uncover whatever bias each prospective juror had against appellant. For instance, at the outset, the trial court explained to the jury: My concern is that whatever the verdict is, that it is a verdict that reflects the facts in the case and the law that I instruct you on in the end, and its not affected by any hidden agenda that you have or bad experience that you had in your life. I want to make sure that everything is open and on the table. It went on to state in its preliminary remarks: And so what jury selection is about, to me, is to find out where you stand, to find out if you really can be fair, and if you have anything in your background, your associations, your experiences, as you start hearing me question the other jurors, that you know you should reveal, do not hold back. Just let me know what it is.  . . .  The worst thing that can happen in this case is for somebody to go back and decide this case that knows from the very beginning they shouldnt be on the jury.

As it questioned each individual juror, the trial court maintained the same tenor and urged the prospective jurors to articulate any bias that they might have. For instance, during its questioning of Prospective Juror No. 10, who had said she would try her best not to let her bias against gangs interfere with her decision making process, the trial court stated: I want you to give me the best answer you can, so instead of telling me Ill do my best, tell me what you think. Tell me what you really think. Do you think you can do it? Im not holding you to it. Im not going to be upset if it turns out that you are wrong or that you reconsidered and . . . that you know what, I reflected and I dont think I can do it. I just need to know what your assessment is, because I dont know you, and the attorneys dont know you. The only one here that knows you is you.

The trial court made similar comments to other jurors encouraging them to articulate their biases. Appellant cites to instances in the record that demonstrate annoyance by the trial court with those four prospective jurors who were apparently fabricating or exaggerating their biases for the sake of being excused or blatantly showing disrespect to the trial court and the gravity of the proceedings. The trial courts statements to these prospective jurors, however, did not chill the other prospective jurors willingness to express bias as evidenced by the fact that several prospective jurors, such as Prospective Juror No. 9, continued to express their bias against gang members after the offending jurors were called out.

III. Trial Courts Comments Regarding Burden of Proof and Reasonable Doubt

A. Appellants Argument

Appellant contends: (1) comments by the trial court during an exchange with Prospective Juror No. 2 shifted the burden of proof on appellant to prove his innocence; and (2) comments by the trial court during exchanges with Prospective Jurors Nos. 16 and 18 trivialized the reasonable doubt standard.

B. Summary of Proceedings Below

At the start of voir dire, the trial court instructed the jury: In any criminal trial, and this one is no exception, when the defendant enters a plea of not guilty, he is presumed to be innocent until the contrary is proved. And in case of a reasonable doubt as to whether his guilt is satisfactorily proved, he is entitled to a verdict of not guilty. That places the burden on the prosecution to prove that he is guilty, and they have to prove it to you beyond a reasonable doubt. Reasonable doubt is not a mere possible doubt, because everything is open to some possible or imaginary doubt. Its that state of the case which, after the entire comparison and consideration of all the evidence, leaves the mind of the jurors, that they cannot say they feel an abiding conviction of the truth of the charges.

During voir dire, the trial court had the following exchange with Prospective Juror No. 2:

Juror: As a law abiding citizen, I think anybody who is charged with a hideous crime like murder, to me, . . . theyre probably guilty as charged, because I dont think the cops would just go on and just arrest anybody for it, for that type of a crime.

Court: Well, to a certain extent thatsthere is truth in that statement. But here is where the truth sort of disappears: The police have to have probable cause, which basically means a reasonable suspicion that somebody is involved in a crime before they can make an arrest. So nobody ends up here that hasnt been arrested, and they have been arrested because some police officer, without the opportunity to view . . . the evidence on the other side, without the opportunity to cross-examine the witnesses and question what they have to say, has looked at the evidence and decided theres at least a strong suspicion that the person is involved. Thats all thats required to get us to that point. Now, in a jury trial, the legal standard is much, much higher. Its proof beyond a reasonable doubt. There is no testTheres no point in the process that leads us to today where anyone has looked at the evidence and decided whether or not the defendant is guilty beyond a reasonable doubt. This is that time. And so its very possible for a person who is innocent to be sitting here facing trial, and it happens all the time. Now what happens at the end of the case, if you look at the evidence and you say: You know what? I think the police were probably right. I sort of suspect he was guilty too, but its not proved to you beyond a reasonable doubt. You have to do the same thing in that case, that a police would do if he had some sneaking suspicion but it wasnt a strong suspicion. Hed have to let the person go and the law requires you at the end of the trial to vote not guilty, the same way. At the end of the case, if you cant say that the evidence proves to you that the defendant is guilty beyond a reasonable doubt, he is entitled to an acquittal. And thats whether the charge is drunk driving, prostitution, or murder. The standard is the same. Does that help you a little bit to understand how we get this point, but someone could still have a trial and be determined to be not guilty of the crime?

Juror: I understand your point. My point is that what you said is possible, but not probably so, soin just my personal belief

Court: Its not true

Juror: That person who is charged with murder, theyre probably guilty, but like you said, its possible that theyre not, but they probably are.

Court: And were here for that possibility, because it is always possible and you have to make that decision after you hear the facts, not before.

Later on, Prospective Juror No. 16 shared his concern that his English [was] not very good. The trial court remarked that the prospective jurors language skills had been good so far, and the prospective juror responded that he had difficulty comprehending a lot of technical words. The trial court interjected: Like beyond a reasonable doubt? Nobody understands that. The trial court subsequently thanked Prospective Juror No. 16 for raising the concern about his language skills but assured him that he was a competent English speaker and that it was important for people from different cultures, including those individuals who speak English as a second language, to be part of the jury system.

Also during voir dire, Prospective Juror No. 18 stated that he would be an impartial juror and that if the appellant is not proven guilty here, he walks. The prospective juror went on to ask the trial court what is reasonable and what is doubt? The trial court responded: Youre not the only guy that would like to ask . . . .  Ill tell you thatIll describe it for you later, ittheres a list of cases that have been overturned that could fill up a phone book on judges trying to redefine reasonable doubt, and then getting overturned, for doing so. So II cant really redefine it for you. Ill read you the instruction, its one of those things that has its own definition, and all I can do is give you that definition, unfortunately. Thats all I can give you. Ill read it to you again a little bit later, but everybodyeverybody will be given the same instruction, and you just follow it the best you can.

At the conclusion of the case, the trial court instructed the jury with CALCRIM No. 220, as follows:

The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not [be] biased against the defendant because hes been arrested, charged with these crimes, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the defendants guilt beyond a reasonable doubt. And whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.

C. Relevant Authority

[A] defendant is innocent unless and until the government proves beyond a reasonable doubt each element of the offense charged[.] (Clark v. Arizona (2006) 548 U.S. 735, 766.)

D. Analysis

According to appellant, the trial court essentially condoned the misguided perception of [Prospective Juror No. 2] when he adopted the jurors position that a defendant charged with murder is probably guilty until proven otherwise. We disagree. When the prospective juror stated his belief that anyone arrested for murder was probably guilty, the trial court promptly corrected this mistaken belief. The trial court explicitly stated that even though probable cause is required to arrest someone, the legal standard is much, much higher to prove that someone is guilty. The trial court went on to state that the prosecution was required to prove appellants guilt beyond a reasonable doubt[,] and that if [a]t the end of the case . . . you cant say that the evidence proves to you that the defendant is guilty beyond a reasonable doubt, he is entitled to an acquittal. In short, the trial court was clear in its comments that the prosecution had the burden of proving that appellant was guilty beyond a reasonable doubt.

We likewise reject appellants argument that the trial courts comments to Prospective Jurors Nos. 16 and 18 trivialized the reasonable doubt standard. Early during voir dire proceedings, the trial court prefaced its comments with the following: Once in a while during jury selection, Ill make a joke or Ill make light of something, get a laugh. Part of it is just for my own entertainment. Part of it is for yours. When the trial court later quipped that [n]obody understands the concept of reasonable doubt, he was clearly making a joke and attempting to assuage Prospective Juror No. 16s concerns about his language skills. No reasonable juror could have understood that comment as suggesting that the bedrock concept of reasonable doubt was beyond anyones comprehension. The trial courts comments to Prospective Juror No. 18 were made in the same spirit. His statement that one could fill up a phone book on judges trying to redefine reasonable doubt, was certainly hyperbole and not to be taken seriously.

In short, the trial court did not err when it made the challenged comments to Prospective Jurors Nos. 2, 16, 18.[8] In any event, if there was error, it was harmless under any standard.[9] (Chapman v. California (1967) 386 U.S. 12, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) The jury was twice instructed on the prosecutions burden of proof and the reasonable doubt standard, once at the beginning of voir dire and once at the conclusion of the trial. Moreover, the jurors were provided with the jury instructions on burden of proof and reasonable doubt in written format and were specifically instructed to refer back to them during deliberations. During closing argument, the prosecution stated that it was the Peoples burden (and not appellants burden) to prove that appellant was guilty beyond a reasonable doubt, and defense counsel reiterated this principle when he stated that the People have the burden of proving beyond a reasonable doubt, [that] it was the defendant who committed the crime. In light of the courts verbal instructions, the written instructions, and the argument by both sides, there is no doubt that the jury understood the proper burden and standard of proof required to convict appellant.

IV. CALCRIM No. 600

A. Appellants Argument

Appellant contends the trial court committed reversible error by instructing the jury on CALCRIM No. 600 because there was no evidence to support the existence of a kill zone. Appellant also contends the trial court committed reversible error by reading the 2006 version of CALCRIM No. 600 to the jury, which ostensibly contains an inaccurate statement of the law.

B. Summary of Proceedings Below

The trial court instructed the jury on CALCRIM No. 600 as follows:

Now, a person may intend to kill a specific victim or victims and at the same time intend to kill anyone within a particular zone of harm or kill zone.

In order to convict the defendant of the attempted murder of Daniel Hernandez, Jesus Cabrera or Manuel Galvan, the People must prove that the defendant not only intended to kill Renato Martinez, but also either intended to kill Daniel Hernandez, Jesus Cabrera and/or Manuel Galvan, or intended to kill anyone within the kill zone.

If you have a reasonable doubt whether the defendant intended to kill Daniel Hernandez, Jesus Cabrera or Manuel Galvan, or intended to kill Renato Martinez by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of either Daniel Hernandez, Jesus Cabrera or Manuel Galvan.

Defense counsel did not object below to the reading of CALCRIM No. 600 to the jury.

C. Relevant Authority

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. Frye (1998) 18 Cal.4th 894, 957, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.)

A defendant may be convicted of the attempted murders of any within the kill zone, although on a concurrent, not transferred, intent theory. (People v. Bland (2002) 28 Cal.4th 313, 331 (Bland).) The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them. (Id. at p. 329.) Concurrent intent exists when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure As 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 . . . .  Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. (Id. at pp. 329330.)

D. Analysis

Assuming, but not deciding, that the issue was preserved for appeal, we conclude that the trial court properly instructed the jury with the kill zone instruction.[10] There was evidence of the following: Appellant attempted to enter the outside area where a group of partygoers were standing. Martinez, who was standing near the other partygoers, stood in appellants way and prevented him from moving forward. The two men got into a fight and appellant pulled out a gun. Appellant fired five to ten shots at Martinez and the group of partygoers standing near him. In short, appellant fired multiple shots at a group of partygoers. In our view, this was sufficient evidence to support the kill zone instruction. (See, e.g., People v. Bragg (2008) 161 Cal.App.4th 1385, 1393 (Bragg) [kill zone instruction proper where defendant fired at a group of people outside of a market].)

Appellant argues that the kill zone instruction did not apply because the intended murder victim, Martinez, was standing close to appellant and the other victims were standing further away. Thus, appellant did not necessarily need to shoot the other victims in order to kill Martinez. But the kill zone instruction or the concept of concurrent intent does not require this type of connection between the primary intended target and the other individuals within the kill zone. Indeed, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within . . . the kill zone. (Bland, supra, 28 Cal.4th at p. 329.)

Appellant also argues that because appellant had not fanned shots indiscriminately into the crowd, a kill zone was not established. While spraying a crowd with bullets can certainly establish a kill zone, it is by no means the only way to do so. Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the fact finder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. (Bland, supra, 28 Cal.4th at p. 330.) Here, defendant fired multiple shots at Martinez and a group of people standing near him. This created a zone of harm around Martinez and justified the kill zone instruction.[11]

We now turn to appellants argument that reversal is warranted in this case because the jury was read the 2006 version of CALCRIM No. 600. As noted above, the trial court instructed the jury in relevant part that: If you have a reasonable doubt whether the defendant intended to kill Daniel Hernandez, Jesus Cabrera or Manuel Galvan, or intended to kill Renato Martinez by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of either Daniel Hernandez, Jesus Cabrera or Manuel Galvan.

In 2008, CALCRIM No. 600 was revised to read in relevant part: If you have a reasonable doubt whether the defendant intended to kill _______ or intended to kill ______ by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of _______.

According to appellant, the 2006 version read to the jury erroneously allowed the jury to conclude that if there was an intent to kill one person in a kill zone then it could convict of attempted murder of anyone whom the shooter intended to harm in that kill zone.

As appellant acknowledges, an identical argument was raised and rejected in Bragg, supra, 161 Cal.App.4th 1385. In Bragg, the jury was instructed with the same version of CALCRIM No. 600 that the jury in appellants case was instructed with. On appeal, the defendant argued that the instruction was erroneous because it allowed the jury to find him guilty of attempted murder merely by finding that the defendant intended to harm, rather than kill, those in the zone of danger around the intended victim. (Bragg, supra, at p. 1395.) The Court of Appeal disagreed, holding that: No reasonable juror could have failed to understand from the instructions as a whole that, to the extent the court occasionally used the word harm or the phrase zone of harm, the harm to which the court referred was the ultimate harm of death and that the law required that the defendant had to have intended to kill the victims. Given the totality of the instructions, there was no error. (Id. at p. 1396)

We find the reasoning in Bragg persuasive. Here, the jury was instructed: In order to convict the defendant of the attempted murder of Daniel Hernandez, Jesus Cabrera or Manuel Galvan, the People must prove that the defendant not only intended to kill Renato Martinez, but also either intended to kill Daniel Hernandez, Jesus Cabrera and/or Manuel Galvan, or intended to kill anyone within the kill zone. (Italics added.) In a separate instruction, the jury was also told that in order to prove that the defendant [was] guilty of attempted murder, the People must prove that . . . the defendant intended to kill that person. (Italics added.) We credit jurors with intelligence and common sense (see People v. Venegas (1998) 18 Cal.4th 47, 80) and do not assume that these virtues will abandon them when presented with a courts instructions. [Citations.] (People v. Coddington (2000) 23 Cal.4th 529, 594.)

In sum, we conclude that given the totality of the instructions, there was no error in instructing the jury with the 2006 version of CALCRIM No. 600.

V. Voluntary Intoxication Instruction

A. Summary of Proceedings Below and Appellants Argument

After the jury members had listened to closing arguments and had received their final instructions, they began their deliberations in the jury room. While this was taking place, the trial court noted that nobody requested [a] voluntary intoxication instruction. The trial court stated that even though there was not enough evidence of intoxication to affect the verdict, it nonetheless believed that there was sufficient evidence to warrant an instruction on voluntary intoxication. The trial court then said: Ill stick [an instruction] in if you want me to. Defense counsel stated that he would request the instruction even though he tend[ed] to agree with the court that there was not enough evidence of intoxication to affect the verdict. Defense counsel asked whether the jury had received the packet of written instructions and verdict forms, and the trial court stated that it had not yet received them. Defense counsel then stated: Okay. Then I will make a request [to] [include an instruction on voluntary intoxication].

The trial court followed up with: The way the instruction will read, in case youre interested, it will read: They can consider it essentially as to [counts] 1 through 4, as it may affect the defendants ability either to form the specific intent to kill or to deliberate and premeditate; however, its not a defense to the lesser crimes to [counts] 2, 3, and 4. Is that acceptable? Counsel for both sides agreed that including such an instruction was acceptable. Neither party requested that the trial court orally read the instruction to the jury in addition to including a written copy in the packet of instructions. The trial court thus included CALCRIM No. 3426, the instruction on voluntary intoxication, in the packet of instructions delivered to the jury.[12]

Appellant argues that trial court committed reversible error by not reading aloud CALCRIM No. 3426 to the jury.

B. Relevant Authority

Generally, minor discrepancies between written and oral instructions do not constitute reversible error, and written jury instructions govern in any conflict with those delivered orally. (People v. Crittenden (1994) 9 Cal.4th 83, 137138.) However, when the trial court delivers a written instruction to the jury, but does not read the instruction aloud, it is not possible to determine if the jurors actually read their written [instruction]. (People v. Murillo (1996) 47 Cal.App.4th 1104, 1107.) Thus, we must assume they did not, and approach the case as though the instruction was not given at all. (Ibid.)

Both parties agree that if the trial court committed error in not reading CALCRIM No. 3426 to the jury, the prejudicial effect of that error should be assessed under People v. Watson, supra, 46 Cal.2d 818.

C. Analysis

Appellant argues that the trial court committed error by not reading CALCRIM No. 3426 to the jury. The People respond that the trial court had no sua sponte duty to instruct the jury on CALCRIM No. 3426 in the first place, and thus, its inclusion of that instruction in the packet delivered to the jurors without an oral instruction could not constitute error.

Assuming, without deciding, that the trial court committed error by not reading CALCRIM No. 3426 aloud, we conclude that the error was harmless. There was minimal evidence of appellants intoxication in this case. The shooting took place at approximately 12:30 a.m. Sanchez testified that earlier that day, he and appellant had been drinking beer and smoking rock cocaine. There was no evidence that appellant was intoxicated or under the influence of either substance at the time of the shooting. On the other hand, there was ample evidence that appellant acted deliberately and with purpose. Specifically, after appellant was confronted by a rival gang member at a party located in rival gang territory, he left the party, returned with a weapon and fellow gang members, and shot at a crowd of people before yelling his own gangs name. Thus, assuming that CALCRIM No. 3426 was not given at all, it is not reasonably probable that appellant would have received a more favorable result.

VI. Sentencing and Fee Issues

A. Count 1: 10-year Gang Enhancement

Appellant contends that the trial court erred by imposing a 10-year gang enhancement pursuant to section 186.22, subdivision (c)(1) on count 1. The People agree that the enhancement was erroneously imposed.

We agree as well. Because the jury convicted appellant of first-degree murder, an offense that carries a minimum sentence of 25 years to life in state prison, appellants gang enhancement is governed by the 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5). (People v. Lopez (2005) 34 Cal.4th 1002, 10071008.) We thus strike the 10-year sentence enhancement imposed under section 186.22, subdivision (c)(1) on count 1 and replace it with a 15-year minimum parole eligibility term under subdivision (b)(5) of that same section. Of course, our modification of the judgment has no pract