P. v. Perez

Filed 1/22/10 P. v. Perez CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

Defendant Faustino Anthony Perez was charged with and convicted by a jury of two counts of attempted murder, shooting at an occupied vehicle, five counts of assault with a semiautomatic firearm, and various enhancements. Despite substantial evidence the shooting constituted attempted voluntary manslaughter on either a heat of passion or imperfect self-defense theory, defendant did not request, and the trial court did not give, an instruction on the lesser included offense. We conclude the trial courts failure to instruct the jury sua sponte on attempted voluntary manslaughter constitutes reversible error as to the two counts of attempted murder. As to the remaining counts and enhancements, the judgment is affirmed. Because we also conclude there is substantial evidence to support the jury verdicts finding defendant guilty of two counts of attempted murder, defendant may be retried on the two attempted murder counts.

FACTS

On the night of September 30, 2006, Alexander Wright, Shane Stamas, and Kevin Peterson met up with Justin Torquemada and Christopher Enberg, and the five of them drove in Enbergs BMW to a party in Lincoln. Shortly after they arrived at the party, other partygoers jumped Torquemada and a fight ensued. Richard Wink, who was not involved in the fight, testified he saw a group of men run out from the fight, and he heard three shots fired from the BMW as it peeled out around the corner.[1]

Wink left the party with defendant and defendants brother, Antonio (Tony) Perez. Wink drove a Ford Explorer. According to Wink, Antonio sat in the front passenger seat and defendant sat in the seat behind Wink. They encountered the BMW on the freeway while driving home. As Wink entered the lane heading toward Rocklin, the driver of the BMW made a quick lane change and followed him.

Wink testified that he was worried as the BMW followed him because he had heard the shots fired earlier from the car. En route to a more populated area for safety, Wink stopped at a red light. The driver of the BMW jumped out of the car and reached toward his waistband. Concerned that the driver might have a gun, Wink ran the red light and drove into the parking lot of an In-N-Out Burger. Wink told a detective that defendant said he would have shot back had the BMW occupants shot at Winks SUV.

After waiting a few minutes, Wink decided it would be safe to drive home. He drove to the next intersection and into the left-hand turn lane. Wink was stopped at the red light when the BMW pulled up alongside of him. Several of the occupants jumped out of the car yelling Beast Mob. As Wink started to move the car, the men got back into the BMW.

According to Wink, the BMW then pulled in front of him, ran a red light, made a U-turn around Winks Explorer, and stopped parallel to the Explorer but facing the other direction. Wink saw the windows in the BMW roll down, and he turned away and ducked because he believed the occupants had a gun and were going to shoot. As he turned away he heard six or seven shots coming from the backseat of his Explorer, and he believed defendant fired them. He did not see Tony shoot a gun, nor did Tony move from his position in the front passenger seat.

Winks testimony was corroborated in substantial part by two of the BMW occupants, Kevin Peterson and Shane Stamas. Both offered compelling testimony that Torquemada and Enberg were the aggressors. Peterson told the police: So a bad idea pops up. [Torquemada] decided to go and square up with them. We start to follow them, and we get to Pleasant Grove and Highland Pointe. That was when we pulled up in front of them. They were either going to hit us or something, so we told [Torquemada] that it was a bad idea. After that [Torquemada] and [Enberg] started saying that they wanted to handle this. [Torquemada] and [Enberg] tried to act like they are bad asses. We tell [Torquemada] that it was a bad idea and tell him to pull out. [Torquemada] moves and pulls up next to them. And that was when they started shooting at us.

Similarly, Stamas reported: We turned into the parking lot and the Explorer went straight and then turned right onto Pleasant Grove Boulevard. When we came out, [Torquemada] said he was going to pull in front of them. I was telling him not to do that. Actually, everyone in the car was screaming at him not to pull out in front of them. Those guys in the Explorer must have freaked out and thought we had a gun, because automatically those guys started shooting.

The prosecutor himself emphasized the importance of this testimony. He argued to the jury: Justin Torquemada, who had just been roughed up, feels a little bit of animosity. Maybe these are some of the guys that roughed him up. Richard Wink just wants to get home. They follow each other around. If you believe Richard Winks testimony, which I believe you should, at some point there was a confrontation -- there was a contact made in the In-N-Out parking lot, after which Richard Wink leaves, and they lose them for some point. . . .

And according to people in his very own car, . . . Justin Torquemada . . . , Justin makes a decision, and [Enberg] agrees with him that they are going to mess with the people in the SUV. And the people in the SUV, according to the defendants statement to [Wink], had been messed with already. There is some apprehension. . . .

. . . According to everyones testimony, except for [Torquemadas], he ran that red light and parked in front of the SUV. He parked in front of the SUV like an idiot. And that caused a little apprehension to the people in the SUV. And the defendant started getting a little amped. He did not know what they were going to do, but it was making him angry.

The BMW had four bullet holes in the drivers door and one in the rear passenger door on the drivers side. Enberg was shot in his shin, and Torquemada was shot in the back of his leg.

After the shooting, Enberg and Tony Perez spoke on the phone. Tony denied shooting at the BMW but offered to pay for the damage so Enberg and his companions would be silent. They arranged to meet despite Stamass protestations. The occupants of the BMW were arrested on their way to the meeting.

There was, to be sure, conflicting testimony about the details of the events leading up to, and including, the shooting. The occupants of the BMW denied they fired any shots before leaving the party, and they denied yelling Beast Mob. Some believed the Explorer was following them. Torquemada denied getting out of the car and pretending he had a weapon.

DISCUSSION

I

It has been 40 years since our Supreme Court made the poignant observation that [o]ur courts are not gambling halls but forums for the discovery of truth. (People v. St. Martin (1970) 1 Cal.3d 524, 533.) Truth may lie neither with the defendants protestations of innocence nor with the prosecutions assertion that the defendant is guilty of the offense charged, but at a point between these two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged. A trial courts failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jurys truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an all or nothing choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence. (People v. Barton (1995) 12 Cal.4th 186, 196 (Barton).)

The obligation also applies, with reservations not applicable here, to instruction on defenses when they are supported by substantial evidence. [Citation.] [] In this context substantial evidence means evidence which is sufficient to deserve consideration by the jury and from which a jury composed of reasonable persons could conclude the particular facts underlying the instruction existed. The trial court is not required to present theories the jury could not reasonably find to exist. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78 (Oropeza).)

We independently review the trial courts failure to instruct sua sponte on lesser included offenses and defenses. (People v. Waidla (2000) 22 Cal.4th 690, 739.)

The Attorney General contends the trial court did not have an obligation to instruct on a theory at odds with the defense, nor, in his view, was there substantial evidence to support instructions on attempted voluntary manslaughter or imperfect self-defense. We first examine the legal criteria and then the quantum of evidence to support the criteria.

Defendant was charged with attempted murder, the attempt to kill a human being with malice aforethought. (Pen. Code,  664, 187.)[2] But a defendant who intentionally attempts to commit an unlawful killing without malice aforethought is guilty of the lesser included offense of attempted voluntary manslaughter when the defendant acts in a sudden quarrel or heat of passion ( 192, subd. (a)) or when the defendant acts in unreasonable self-defensethe unreasonable but good faith belief in having to act in self-defense (In re Christian S. (1994) 7 Cal.4th 768). Thus, in a case such as ours, the principles involving a trial courts sua sponte obligation to instruct on a lesser included offense, to wit, attempted voluntary manslaughter, are blurred with the courts obligation to instruct on possible defenses.

But the Supreme Court has made the trial courts obligation crystal clear. [U]nreasonable self-defense is, as we explained earlier, not a true defense; rather, it is a shorthand description of one form of voluntary manslaughter. And voluntary manslaughter, whether it arises from unreasonable self-defense or from a killing during a sudden quarrel or heat of passion, is not a defense but a crime; more precisely, it is a lesser offense included in the crime of murder. Accordingly, when a defendant is charged with murder the trial courts duty to instruct sua sponte, or on its own initiative, on unreasonable self-defense is the same as its duty to instruct on any other lesser included offense: this duty arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense. (Barton, supra, 12 Cal.4th at pp. 200-201.) As a result, the court rejected the notion that unreasonable self-defense is a defense. (Ibid.)

We believe this case turns on whether there is substantial evidence of provocation; that is, whether there was sufficient evidence from which a jury could infer that defendant was acting in a heat of passion or in the actual, although unreasonable, belief that his life was threatened. The prosecutions witnesses, as highlighted by the prosecutor himself, provided ample evidence of provocation.

Richard Wink, of course, provided the most compelling testimony. He reported that he heard three shots coming from the BMW as the victims and their buddies peeled out around the corner and sped away from the party. He believed the BMW followed his SUV off the freeway and observed the driver reach for his waistband, again suggesting the existence of a weapon. Defendants remark that he would have shot back had the BMWs occupants fired at them also suggests that he believed, and reasonably feared, there would be a shooting. When coupled with the BMWs threatening approach followed by an illegal U-turn to cut off the SUV, a jury could reasonably conclude that the occupants of the BMW provoked the shooting. To be sure, their aggressive pursuit of the SUV and menacing maneuvers could have incited defendant to act out of either anger or fear, or both.

Indeed, the victims friends provided that very assessment. Both Peterson and Stamas portrayed Torquemada as the aggressor, encouraged by Enberg. Peterson testified that the three occupants in the back seat realized it was a bad idea when Torquemada decided to go and square up with them, but Torquemada and Enberg just tried to act like they [were] bad asses. Peterson reported that Torquemada pulled up right next to the Explorer. Stamas corroborated Petersons account, repeating that when Torquemada announced he was going to pull in front of the SUV, they were all screaming at him not to. Then Stamas drew the same inference a properly instructed jury might have drawn: Those guys in the Explorer must have freaked out and thought we had a gun, because automatically those guys started shooting.

There was no gun found in the BMW or on any of the occupants. But the absence of the gun does not diminish the evidence that given the occupants behavior, including the fight at the party, their abrupt departure, their aggressive pursuit, their taunting remarks, and their furtive gestures, defendant might have actually believed they had a gun and were about to fire it at the occupants of the SUV. Moreover, even if the jury rejected this theory of unreasonable self-defense, it might have concluded that the BMW occupants threatening behavior incited defendants wrath. After all, according to Wink, he and the Perez brothers were merely attempting to drive home when the occupants of the BMW pursued them, and when that pursuit continued in spite of Winks attempt to avoid a confrontation by parking at In-N-Out and waiting a reasonable time for the BMW to go on its way, defendant might have become so enraged that he fired in the heat of passion. Either way, we conclude there is substantial evidence of provocation sufficient to trigger the trial courts sua sponte obligation to instruct on both aspects of attempted voluntary manslaughter.

Relying on People v. Villegas (2001) 92 Cal.App.4th 1217 (Villegas) and Oropeza, supra, 151 Cal.App.4th 73, the Attorney General insists that road rage does not constitute sufficient provocation for voluntary manslaughter. While it is true that both cases involve aggressive driving followed by shootings, there are significant factual disparities between these cases and the one before us.

Villegas did not involve instructional error because the defendant was tried before the court, not a jury. The issue on appeal was not, therefore, whether there was substantial evidence to trigger a sua sponte obligation to instruct, but whether there was sufficient evidence to support the courts finding of malice. In assessing the evidence of malice, the court found little evidence of voluntary manslaughter and certainly not enough to conclude there was insufficient evidence of malice.

The Court of Appeal repeated the apt principle that [t]he provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation] or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citation.] (Villegas, supra, 92 Cal.App.4th at p. 1225.)

In Villegas, there was no evidence the victim provoked the defendant. Whereas in the case before us Wink and the other occupants of the SUV testified that Torquemada was the aggressor, and Wink testified he heard shots coming from the BMW and observed Torquemada get out of the car and reach for his waistband, no witness testified the victim in Villegas had a gun, pulled a gun, or threatened Villegas with a gun. Rather, the victim had merely stepped out of his truck when the defendant started shooting. (Villegas, supra, 92 Cal.App.4th at pp. 1225-1226.) Thus, the court properly concluded that this evidence did not negate malice as a matter of law. (Id. at p. 1226.) And, as we pointed out above, instructional error was not at issue.

Instructional error was at issue in Oropeza. The court rejected the defendants requested instructions on voluntary manslaughter based on imperfect self-defense and sudden quarrel or heat of passion. (Oropeza, supra, 151 Cal.App.4th at pp. 81-82.) Reporting the facts in a manner most favorable to Oropeza, the court stated: [T]his incident began when Coss intentionally cut off the truck in which appellant was riding. While an ordinarily reasonable person might be angered by the act, such a person would not pursue or encourage the driver of a vehicle in which he or she was a passenger to follow the offending vehicle at a high rate of speed and engage in highly aggressive driving and abusive personal behavior. Coss departed after cutting off Lopez. Had Lopez, with appellants encouragement, not made extraordinary efforts to catch up to him and then engage in an alcohol-infused, ego-inspired act of mutual road rage, the shooting would never have occurred. (Id. at p. 83.)

Missing from this recitation is any evidence like Winks testimony that one of the victims had appeared to reach for a gun and that shots had been fired from the victims vehicle before the incident occurred. Whereas the two carloads of young men in our case had encountered each other at a party during which the occupants of the BMW had been engaged in a fight, there was no evidence in Oropeza to suggest the occupants of the cars knew each other, had encountered each other before, or had any preexisting relationship. Indeed, it appeared to be a pure case of road rage. As a result, the court concluded that a reasonable person would not encourage a driver to pursue a car at a high rate of speed simply because he had been cut off and thereafter make extraordinary efforts to catch up and shoot the occupants. On those facts, the court found insufficient evidence to justify the requested instructions.

Much more than road rage was involved in the case before us, and there was substantial evidence the victims, not defendant, were the aggressors. As the prosecutor argued, Justin Torquemada, who had just been roughed up, feels a little bit of animosity. Maybe these are some of the guys that roughed him up. Whether Torquemada believed Wink and the Perez brothers were involved in the fight or not, Torquemadas friends reported that he and Enberg were trying to be bad asses, and they repeatedly pursued, and eventually blocked, the Explorer. More significantly, Wink testified that he heard three shots and saw Torquemada reach for his waistband in a manner suggesting he had a gun. Under those circumstances, as we discussed above, defendant, unlike Oropeza, may have acted either in the heat of passion or under the actual belief he was going to be shot. And this was precisely the assessment Stamas recountedthat when Torquemada ran a red light, pulled out in front of them, and made an abrupt U-turn, the occupants of the Explorer must have believed they were going to be shot. Neither Villegas nor Oropeza dictates a different result.

The convictions of two counts of attempted murder with the accompanying enhancements must be reversed.

II

The double jeopardy clause precludes a second trial after a conviction is reversed based solely on the insufficiency of the evidence. (People v. Seel (2004) 34 Cal.4th 535, 544; People v. Hatch (2000) 22 Cal.4th 260, 271-272.) We therefore must address defendants assertion that there is insufficient evidence to support the jury verdicts finding him guilty of two counts of attempted murder. He contends there was insufficient evidence the attempted murders of Torquemada and Enberg were premeditated and that he acted with malice aforethought. He also maintains there was insufficient evidence that he specifically intended to kill Enberg or that Enberg was in a kill zone within which he intended to kill everyone.

As we discussed at length above, we agree with defendant that there is substantial evidence to support his theory of attempted voluntary manslaughter, a theory that erroneously was not presented to the jury. But that is not to say, as defendant suggests, there is insufficient evidence of the requisite intent for attempted murder. At a second trial, a jury may once again find defendant guilty of two counts of attempted murder because, as we now explain, there is sufficient evidence to support the attempted murder counts.

Premeditated, Deliberate Attempted Murder with Malice Aforethought

Defendant, relying on the same evidence that triggered the trial courts sua sponte duty to instruct on attempted voluntary manslaughter, insists there was insufficient evidence he premeditated or deliberated the shooting. Nor, in defendants view, was there sufficient evidence that he harbored malice toward either Torquemada or Enberg. We disagree.

Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623.) The sufficiency of the evidence of premeditation and deliberation is the same for murder and attempted murder. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462-1463, fn. 8.) In reviewing the sufficiency of the evidence of premeditation and deliberation, the Supreme Court directs us to consider the evidence of planning, motive, and manner of killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. [Citations.] The process of premeditation . . . does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . [Citations.] [Citation.] (People v. Halvorsen (2007) 42 Cal.4th 379, 419 (Halvorsen).)

Defendant insists there is no evidence he knew either Torquemada or Enberg or planned to kill them. He argues that Torquemada was the aggressor, the instigator of all that followed, and his own response was an unconsidered impulse rather than the result of a deliberate judgment or plan carried out according to a preconceived design. Nor did the manner of the shooting demonstrate premeditation, according to defendant. The rapid firing of six shots, in defendants view, is the kind of explosive action indicative of manslaughter, not premeditated murder.

Certainly, the jury can consider the inferences defendant urges. But we remain constrained by the well-established and limited scope of appellate review. In reviewing a criminal conviction challenged as lacking evidentiary support, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] [Citation.] . . . An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citation.] [Citation.] (Halvorsen, supra, 42 Cal.4th at p. 419.)

We accept the possibility that defendant may be guilty of attempted voluntary manslaughter rather than attempted murder based on all the evidence described above. But that is not to discount the sufficiency of the evidence that gave rise to the inferences the jury drew here. Defendant told Wink in the parking lot of In-N-Out that he would have shot back if the occupants of the BMW had fired at them, thus indicating he was deliberating his course of action and conceiving a plan to shoot to kill. Witnesses testified that when the opportunity arose, defendant rolled down the window, and Wink testified that defendant began firing at the BMW. There is evidence the car was struck at least six times. Evidence of defendants rolling down the window and firing multiple shots allowed the jury to infer that he had time to premeditate and deliberate.

The prosecutor argued that the occupants of the BMW were being jerks by making a U-turn in front of Winks car and parking in front of them. The Attorney General suggests that Torquemadas behavior provided a motive for the attempted killing. We agree the jury may have inferred that the BMW occupants behavior showed a disrespect defendant decided to avenge, an inference made more plausible because the occupants were reported to have yelled a gang name, Beast Mob.

The evidence of premeditation and deliberation is by no means overwhelming. But our role is merely to determine whether it is of reasonable, solid value so as to support a jurys finding. We are not at liberty to make our own inferences. Here we conclude there was sufficient evidence to support a finding of premeditation and deliberation.

Defendant also argues that malice was negated by both a heat of passion and an honest, but unreasonable, belief in the need for self-defense. Not so. Defendant can certainly make that argument to the jury, but it is an argument the jury is not compelled to accept. Rather, the jury may be persuaded that firing six shots into the BMW after earlier announcing his intent to shoot his loaded gun if necessary gives rise to the inference of malice. The jury is free to reject defendants theory that he entertained an honest, but unreasonable, belief in the need for self-defense. We simply cannot say there is no substantial evidence on this record to support a jurys finding of malice.

Attempted Murder in the Kill Zone

Another question presented is whether there was sufficient evidence that defendant entertained the specific intent to kill the passenger, Christopher Enberg. Defendant asserts not only insufficiency of the evidence, but instructional error exacerbated by the prosecutors erroneous argument. Since the judgment must be reversed based on the failure to instruct on attempted voluntary manslaughter, we need not address whether the instructions and arguments pertaining to the kill zone were erroneous. In People v. Stone (2009) 46 Cal.4th 131 (Stone), the California Supreme Court resolved these very issues. We trust that in the event of a retrial, the trial court will follow the admonitions offered by the Supreme Court in Stone.[3] We must consider, however, defendants argument that there was insufficient evidence to support a finding that he specifically intended to shoot Enberg.

Some basic rules have emerged particular to attempted murder, but not to murder. Attempted murder requires express malice and the specific intent to kill; murder does not. (Stone, supra, 46 Cal.4th at pp. 139-140; People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) The doctrine of transferred intent applicable to murder does not apply to attempted murder. (Stone, at p. 140.) In Stone, unlike here, the defendant was charged with a single count of attempted murder based on the firing of a single shot. In those circumstances the court found that Stone did not present the more challenging factual scenario where, as here, an indiscriminate shooter fires into an occupied vehicle and the court must determine how many counts of attempted murder the shooter can face. (Id. at p. 141.)

People v. Bland (2002) 28 Cal.4th 313 (Bland) presents more analogous facts. The shooter in Bland fired multiple shots at the occupants of a car, killing the driver and injuring, but not killing, two of the passengers. (Id. at p. 318.) The defendant was convicted of one count of murder and two counts of attempted murder. Like the evidence presented in the case before us, there was evidence the shooter intended to kill the driver, and the question arose whether the evidence supported a finding that he intended to kill the passengers as well. (Id. at p. 319.)

In Bland, the Supreme Court concluded that transferred intent did not apply to attempted murder. (Bland, supra, 28 Cal.4th at pp. 326-327.) Nevertheless, a person who shoots at a group of people, even if he or she primarily targeted only one, could still be guilty of the attempted murder of everyone in the group. (Id. at p. 329.) The court relied not on transferred intent, but on concurrent intent.

The Supreme Court adopted the reasoning used by the Maryland Court of Appeals in Ford v. State (1992) 330 Md. 682 [625 A.2d 984]. The Ford court explained that although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the kill zone. The intent is concurrent . . . 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. (Bland, supra, 28 Cal.4th at pp. 329-330, quoting Ford, supra, 625 A.2d at pp. 1000-1001.)

Thus, in Bland, [e]ven if the jury found that defendant primarily wanted to kill [a driver] rather than [the] passengers, it could reasonably also have found a concurrent intent to kill those passengers when defendant and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone. Such a finding fully supports attempted murder convictions as to the passengers. (Bland, supra, 28 Cal.4th at pp. 330-331.)

Another kill zone case is People v. Vang (2001) 87 Cal.App.4th 554, cited by the Supreme Court with approval in Bland. (Bland, supra, 28 Cal.4th at p. 330.) In Vang, the defendants were convicted of 11 counts of attempted murder for spraying bullets into two occupied houses. Each count named a different victiman occupant in one of the two houses. The defendants argued the evidence was deficient because it failed to prove that they intended to kill anyone other than the two primary targets. (Id. at p. 563.) Rejecting their argument, the court explained: The jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up. (Id. at pp. 563-564.)

We agree with defendants astute formulation of the issue. The question here is whether the shots were fired into the BMW in a manner that shows the defendant intended to kill everyone in the BMW, or its front seat area, in order to kill Justin Torquemada, i.e., whether he created a kill zone such that he could be found to have attempted to kill both his intended victim and everyone else in that zone. He further argues, There must be evidence that in his effort to kill a targeted victim, the defendant chose a manner of killing that created a zone of danger, and that he intended to kill everyone within that zone.

Defendant acknowledges that the evidence showed six bullets struck the BMW. There were five bullet holes in the doors of the BMW. Four bullet holes were in the drivers door. One bullet penetrated the rear passenger door on the drivers side, and at least one bullet went through one of the BMWs windows. Torquemada was shot in the back of the leg and Enberg was shot in the shin.

Nevertheless, defendant insists, firing six shots into a moving automobile does not constitute the kind of indiscriminate and excessive violence needed as evidence of intent to create a kill zone. That is an argument he can certainly make to a second jury. But it is the jurys prerogative to reject the inference he urges as, indeed, the jury did during their deliberations here. We disagree that there is insufficient evidence as a matter of law to support a finding that his use of lethal force was sufficient circumstantial evidence that he intended to kill the passenger as well as the driver. (Smith, supra, 37 Cal.4th at p. 739.) Rather, we conclude that firing at least six shots into the car indicates that defendant had the concurrent intent to kill anyone who was in his line of fire. In other words, he intended to create a kill zone and to kill everyone in it.

Such an inference was bolstered by the statement defendant made earlier at the In-N-Out parking lot that had the occupants of the BMW shot at them, he would have shot back. He did not state he would shoot the driver; rather, his statement reflected that he had a gun and was prepared to use it. His statement, coupled with the number of shots, the proximity of the two cars, and the use of a weapon strong enough to penetrate the door, constitutes sufficient evidence to allow the jury to reasonably infer that defendant intended to kill everyone who was in his line of fire. Consequently, there was substantial evidence to support the jurys finding that defendant was guilty of the attempted murder of Christopher Enberg.

III

The jury found defendant guilty of one count of shooting at an occupied motor vehicle ( 246) and five counts of assault with a semiautomatic firearm ( 245, subd. (b)). The jury also found he personally used a firearm within the meaning of section 12022.5, subdivision (a) and section 12022.5, subdivision (d). The court found the on-bail enhancement to be true. Because the instructional error discussed above does not affect these findings, there remain two other issues we must address. Neither is meritorious.

Winks Credibility

Wink was granted immunity on the first day that evidence was presented at trial. That same day, the court instructed the jurors on factors they could consider in evaluating a witnesss credibility, and one of those factors was whether the witness was promised immunity or leniency in exchange for his testimony. Because the court did not repeat this instruction immediately before the jury began its deliberations, defendant claims the instructions were inadequate and reversal is required. We disagree.

First, the jurors were properly instructed, albeit at the beginning of the trial rather than at the end. Second, before deliberations they were instructed on how to assess a witnesss credibility and told they could consider anything that reasonably tended to prove or disprove the truth or accuracy of the witness. The trial court did not have a sua sponte duty to give cautionary instructions based on a grant of immunity. (People v. Freeman (1994) 8 Cal.4th 450, 508.) Third, they were provided with a copy of a written instruction reiterating that they could consider all factors that reasonably related to the witnesss credibility. (CALCRIM Nos. 105, 226.)

We agree with the Attorney General that the jurors would have understood they could consider Winks immunity as bearing on his credibility given these instructions in conjunction with Winks testimony and the closing arguments. Wink testified that he had been granted immunity. Defense counsel argued that Wink and Tony had both the time and the motive to concoct a story before Wink first spoke to the police, and that story resulted in a grant of immunity for Wink. The prosecutor, in rebuttal, argued that immunity enhanced, rather than detracted from, Winks credibility because it made him feel comfortable giving testimony without the threat of prosecution.

In this context, we conclude the jurors would have understood that they should consider the immunity granted Wink as bearing on his credibility. Perhaps that message would have been telegraphed more specifically by repeating the instruction that had been given at the outset of the trial. Nevertheless, the jury was encouraged to consider anything bearing on the truth or veracity of a witnesss testimony, and when the testimony and argument focused the jurors attention precisely on the issue of immunity, we cannot say the failure to repeat the instruction constituted error.

Reference to Defendants Status as Out on Bail

Defendant urges us to reverse because his lawyer failed to prevent the trial court from reading the complaint at the outset of trial, including the allegation that he was released from custody and was on bail at the time of the commission of one of the offenses. Any possible error by the court or defendants lawyer was harmless under any standard.

Immediately after reading the complaint, the trial court instructed the jury that the complaint was a statement of the charges against defendant and did not constitute evidence. The following day, the court granted the defense request to bifurcate the on-bail enhancement. Before deliberations, the court instructed the jurors to follow its instructions, that a criminal complaint was not evidence, and to use only the evidence admitted at trial. We must presume the jurors followed the courts instructions. (People v. Sanchez (1995) 12 Cal.4th 1, 82, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421.)

Defense counsel argued not only that Wink was an uncorroborated accomplice, but also that defendant was not the shooter, Tony was. Indeed there was evidence to support defense counsels argument, including testimony from the victims, the angle of the bullet holes, and Tonys offer to pay the BMW occupants to remain silent. The jury, of course, was free to reject defense counsels argument as it did, but an unfavorable result does not mean defendants representation was constitutionally deficient. Moreover, there is substantial evidence to support the jurys finding that defendant was the shooter, including Winks testimony that defendant was in the back seat, he heard the shots coming from the backseat, defendant had told him he had a gun and would shoot if threatened, and Wink was in the front seat with Tony and Tony did not shoot at the BMW.

The fleeting reference to the on-bail enhancement in the context of reading the overall complaint was an innocuous footnote to the evidence presented by both sides as to who the shooter really was. We conclude that under any standard of prejudice, the isolated remark was harmless. The jury was properly and thoroughly instructed and, on this record, we have no reason to suspect they did not scrupulously follow those instructions. We can find no reversible error.

DISPOSITION

The judgment as to the two counts of attempted murder and their accompanying enhancements is reversed, and the case may be retried. In all other respects the judgment is affirmed.

RAYE , J.

We concur:

SIMS , Acting P. J.

BUTZ , J.

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[1] Wink testified under a grant of immunity from the prosecution.

[2] All further statutory references are to the Penal Code.

[3] The Supreme Court advised future courts to eliminate the possible ambiguities contained in CALCRIM No. 600, the instruction on the kill zone theory delivered by the court in this case. In footnote 3, the court wrote: The Court of Appeal also noted two ambiguities in this portion of CALCRIM No. 600. First, as did the Court of Appeal in People v. Campos (2007) 156 Cal.App.4th 1228, 1241, 1243 [67 Cal.Rptr.3d 904], it noted that the instruction refers to the intent to kill anyone within the kill zone rather than everyone. In 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. But any possible ambiguity can easily be eliminated by changing the word anyone to everyone. [] Second, the Court of Appeal noted that the final sentence refers to an intent to harm everyone in the kill zone, rather than to kill everyone in the zone. Because the intent required for attempted murder is to kill rather than merely harm, it would be better for the instruction to use the word kill consistently rather than the word harm. (Stone, supra, 46 Cal.4th at p. 138, fn. 3.)