Opinion
B259708
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. LUIS ERASMO GARCIA, Defendant and Appellant.
Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Colleen M. Tiedemann and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT*:
It is ordered that the opinion filed herein on November 25, 2019, be modified as follows:
1. On page 10, first sentence at the top of the page, the word "Lastly" is changed to "Third" as follows:
Third, defendant argues any inconsistency . . .
2. On page 10, add a paragraph above the "B. Kill zone instruction" to read as follows:
Lastly, defendant cites what he perceives as deficiencies in the above-stated analysis in his petition for rehearing following the Supreme Court's remand for us to reconsider the "kill zone" instruction issue. As an initial matter, we are without authority to consider defendant's proffered deficiencies because they are beyond the scope of the Supreme Court's remand, which was limited to "reconsider[ing] the cause in light of People v. Canizales." ~(Remand Order)~ Defendant's post-remand attacks on the self-defense and defense of other instructions are outside of this mandate and hence beyond our jurisdiction. (People v. Ramirez (2019) 35 Cal.App.5th 55, 64 ["when an appellate court remands a matter with directions governing the proceedings on remand, ' "those directions are binding on the [lower] court and must be followed. Any material variance from the directions is unauthorized and void." ' [Citations.]"].) Further, defendant's specific arguments lack merit in any event. He complains that we did not address his argument, pursuant to People v. Rios (2000) 23 Cal.4th 450 (Rios), that the trial court erred in not instructing the jury that the prosecution had the burden of proving the absence of provocation or of any belief in the need for self-defense. However, we did not read this issue because we concluded that defendant had not established that "the issue of provocation or imperfect self-defense [was] 'properly
presented'" in the first place due to the lack of substantial evidence supporting such a defense. (Rios, at pp. 461-462.) Without a threshold entitlement to the defense instruction, the issue of who bears the burden of proving that defense is irrelevant. Defendant also complains that we did not view the evidence in the light most favorable to him. As noted above, we recognize that this is the standard. Contrary to what defendant says, we followed that standard.
3. On page 14, at the end of the carry-over paragraph, add the following:
In his petition for rehearing, defendant asserts that we have misconstrued his complaint about the prosecutor's argument as a "prosecutorial misconduct" argument, and thus failed to analyze the purported instructional error under People v. Guiton (1993) 4 Cal.4th 1116 (Guiton). He is wrong. Our analysis focused on the effect of the prosecutor's argument on the property of the instruction—not as a separate basis for relief. And we did not discuss Guiton because we find no error with the instruction in the first place.
There is no change in the judgment.
Appellant's petition for rehearing is denied. /s/_________
* LUI, P.J., /s/_________
ASHMANN-GERST, J., /s/_________
HOFFSTADT, J.
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. (Los Angeles County Super. Ct. No. YA080092)
OPINION ON REMAND
APPEAL from a judgment of the Superior Court of Los Angeles County. Steven R. Van Sicklen, Judge. Affirmed in part and remanded with directions. Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Colleen M. Tiedemann and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
A jury convicted Luis Erasmo Garcia (defendant) of three counts of first degree, premeditated murder and one count of attempted premeditated murder after he shot and killed three rival gang members and shot and injured a friend's cousin at a streetside car show. On appeal, defendant argues that the trial court should have instructed the jury on the concepts of perfect and imperfect self-defense/defense of others, that the trial court should not have instructed the jury on a "kill zone" theory, and that there was insufficient evidence that the shootings were premeditated. In an opinion issued in December 2016, we affirmed his convictions after concluding there was neither individual nor cumulative error.
Our Supreme Court subsequently granted review and remanded the case to reconsider whether the trial court erred in giving a "kill zone" instruction in light of its recent decision in People v. Canizales (2019) 7 Cal.5th 591 (Canizales). We solicited supplemental briefing on this issue; in his briefing, defendant also argued that he is entitled to a remand for the trial court to consider whether to strike the 25-year firearm enhancements imposed as part of his sentence. We conclude that the trial court's "kill zone" instruction and defendant's ensuing attempted murder conviction were proper under Canizales, but agree that defendant is entitled to a remand on the sentencing issue. Accordingly, we withdraw our prior opinion and issue this opinion that affirms defendant's convictions but remands with instructions.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On a night in August 2008, approximately 300 to 500 people gathered for an impromptu car show at the intersection of Western Avenue and Imperial Highway in South Los Angeles. Three members of the "South Los" street gang showed up, loudly proclaiming their gang affiliation and boisterously criticizing the multi-racial make-up of the crowd. Soon thereafter, someone fired a hail of five to eight bullets at the compact area where all three of the South Los gang members were standing next to one another. Some of the bullets struck—and ultimately killed—all three South Los gang members: One was shot in the chest from 23 to 25 feet away, another was shot in the head at point blank range (of two inches to three feet away), and the last was shot twice in the back. One of the other bullets struck Jose Garcia (Jose) in the chest but did not kill him; Jose was standing approximately eight feet away from the shooter when he was shot.
Because defendant and Jose Garcia share the same last name, we use Jose's first name for clarity. We mean no disrespect. We also note that the two men are unrelated.
Although they recanted some of their prior statements while testifying, several persons called as witnesses had previously given statements naming defendant as the shooter. Jose and his cousin (who was defendant's friend) each identified defendant as the shooter. Defendant later apologized to Jose for shooting him. And defendant bragged to others that he "dropped" "three [South Los members] in one."
II. Procedural Background
The People charged defendant with the first degree, premeditated murders of the three South Los gang members (Pen. Code, § 187, subd. (a)), and with the attempted premeditated murder of Jose (§§ 187, subd. (a) & 664). The People further alleged that defendant personally discharged a firearm (§ 12022.53, subd. (d)) and committed the crimes at the direction of, for the benefit of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court instructed the jury on first and second degree murder, and, as to the attempted murder count, on "kill zone" liability. The jury convicted defendant of three counts of first degree, premeditated murder and of attempted premeditated murder; it also found true the firearm and gang allegations.
For each first degree murder, the trial court imposed a prison sentence of life without the possibility of parole to be followed by 25 years for the firearm enhancement. The court imposed each sentence consecutively. The court also imposed a further, consecutive life sentence plus 25 years for the attempted premeditated murder count.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Instructional Errors
Defendant argues that the trial court erred in instructing the jury because (1) the court did not instruct on perfect self-defense/defense of others or on the lesser included offense of voluntary manslaughter due to imperfect self-defense/defense of others, and (2) the court instructed that defendant could be liable for Jose's attempted murder on a "kill zone" theory. We independently review the trial court's jury instructions. (People v. Cruz (2016) 2 Cal.App.5th 1178, 1183.)
A. Self-defense/defense of others
A person has engaged in perfect self-defense/defense of others—and is not guilty of any homicide—if he kills a person with "'an honest and reasonable belief in the need to defend'" himself or others from great bodily injury or death. (People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1227 (Valenzuela), quoting People v. Flannel (1979) 25 Cal.3d 668, 674-675; § 197, subd. 3.) The person's honest, subjective belief negates the malice necessary to make the homicide murder, and "the reasonableness of th[at] belief . . . justifi[es] . . . the killing" entirely and renders it noncriminal. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269; § 187, subd. (a) [defining "murder" as an "unlawful killing . . . with malice aforethought"]; § 188 [defining "malice"].) A person has engaged in imperfect self-defense/defense of others if he kills a person with an "actual but unreasonable belief that he" or someone else "is in imminent danger of great bodily injury or death." (People v. Simon (2016) 1 Cal.5th 98, 132 (Simon).) As with perfect self-defense/defense of others, the person's actual, subjective belief negates the malice necessary to make the homicide murder; however, because that belief is unreasonable, the homicide is still a crime but a lesser form of intentional homicide that lacks malice—namely, voluntary manslaughter. (Ibid.) In this respect, imperfect self-defense/defense of others is "not an affirmative defense" as much as it is a "'shorthand description of one form of [the lesser included offense of] voluntary manslaughter.'" (Valenzuela, at p. 1231, quoting People v. Barton (1995) 12 Cal.4th 186, 200; Simon, at p. 132.)
A trial court's duty to instruct on self-defense/defense of others is not tied to whether a defendant requests such instructions; instead, it turns on whether substantial evidence supports those instructions. For an affirmative defense like perfect self-defense/defense of others, a trial court has a sua sponte duty to instruct if (1) "'it appears the defendant is relying on such a defense,'" or (2) "'there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'" (People v. Boyer (2006) 38 Cal.4th 412, 469, superseded on other grounds by section 22.) For a lesser included offense like voluntary manslaughter based on imperfect self-defense/defense of others, a trial court has a sua sponte duty to instruct if "there is substantial evidence that would absolve the defendant from guilt of the greater, but not the lesser, offense." (Simon, supra, 1 Cal.5th at p. 132.) In both instances, evidence is substantial if a reasonable jury could find, from the evidence presented at trial, that the elements of the pertinent self-defense/defense of others doctrine have been established. (People v. Breverman (1998) 19 Cal.4th 142, 159.) For these purposes, we review the evidence at trial "'in the light most favorable to the defendant.'" (People v. Wright (2015) 242 Cal.App.4th 1461, 1483 [as to lesser included offenses]; People v. Mentch (2008) 45 Cal.4th 274, 290 [as to affirmative defenses].)
1. Evidence (viewed in the light most favorable to defendant)
Although Jose flatly denied—and another witness confirmed—that Jose never had any altercation with the three South Los gang members, and although Jose's cousin had not mentioned being involved in a fistfight during his prior police interview or during his preliminary hearing testimony, Jose's cousin testified at trial that (1) he saw one of the three South Los members push Jose, (2) he rushed over to "defend" Jose, (3) he swung at one of the three South Los members who had swung at him but missed, but ended up only "tapp[ing]" him on the chin. The cousin also testified that the guy he "tapped" had a bottle in his hand, but had set it on the ground to take off his shirt at the time the gunshots were fired. The medical examiner testified that one of the three South Los members had an abrasion on his chin (as well as other places) that could have been caused by his fall to the ground or by a fight. The cousin also stated he had been friends with defendant for two to 12 months prior to the shooting.
2. Analysis
The trial court did not err in refusing to instruct the jury on the affirmative defense of perfect self-defense/defense of others or on the lesser included offense of voluntary manslaughter due to imperfect self-defense/defense of others. As noted above, both perfect and imperfect self-defense/defense of others require proof that the defendant had an "actual," "honest" and subjective belief in the need to defend himself or others from death or great bodily injury. (Valenzuela, supra, 199 Cal.App.4th at pp. 1230-1231; Simon, supra, 1 Cal.5th at p. 132.) However, there is no evidence that defendant saw or otherwise perceived that Jose's cousin or, for that matter, Jose, were engaged in an altercation with any of the South Los gang members. There were hundreds of people at the car show, and there was no evidence that Jose or his cousin were even in defendant's line of sight prior to the shooting. Jose's cousin was the only person who testified to any altercation with the South Los members, and the cousin never testified that defendant was nearby or able to see what was happening. Jose testified that defendant was at some point eight feet away from him, but Jose also testified there was no altercation and that there were a number of people in between himself and defendant. In sum, there was no evidence indicating that defendant was looking at Jose or his cousin at the time the two South Los members were shoving Jose or swinging at Jose's cousin. Without such evidence, defendant could not have fired the shots with the intent to defend them or anyone else. There was also no evidence that the shove or the missed punch caused defendant to subjectively perceive that Jose or his cousin were in imminent danger of great bodily injury or death, particularly in light of the cousin's testimony that he was "waiting" for the guy to finish putting down the bottle. (Simon, at p. 132.)
There is a further, independent reason why the trial court properly declined to instruct on perfect self-defense/defense of others. A defendant's belief is reasonable—and perfect self-defense/defense of others is available—only if "lethal force is necessary to prevent death or great bodily injury." (People v. Uriarte (1990) 223 Cal.App.3d 192, 197.) A defendant cannot invoke perfect self-defense/defense of others if he is the one who escalates a confrontation from one involving non-lethal force to one involving lethal force. (People v. Clark (1982) 130 Cal.App.3d 371, 380 ["deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury"]; CALJIC No. 5.31 ["[a]n assault with the fists does not justify the person being assaulted in using a deadly weapon in self-defense unless that person believes and a reasonable person in the same or similar circumstances would believe that the assault is likely to inflict great bodily injury"].) Here, the South Los members and Jose's cousin were engaged in a fistfight, and the South Los member who was "armed" with a bottle put it down to fight the cousin; defendant's immediate resort to the lethal force of a gun therefore forecloses the availability of perfect self-defense/defense of others.
Defendant raises three sets of arguments in response. First, he asserts that a defendant is not required to take the stand at trial in order to establish the existence of his actual, subjective belief in the need to use deadly force to defend others. Defendant is right. (E.g., People v. De Leon (1992) 10 Cal.App.4th 815, 824.) But with or without a defendant's testimony, there still "must be evidence from which the jury could find that [defendant] actually had such a belief." (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.) Here, for the reasons explained above, there is no evidence that defendant knew Jose and his cousin were in a fistfight and thus no evidence that defendant subjectively believed he needed to defend them.
Second, defendant contends that the timing of the shooting (that is, not immediately upon the arrival of the three South Los members at the car show) as well as defendant's decision to be parsimonious with his bullets (that is, shooting only five to eight) shows that he was only trying to stop a fight; further, he argues, his gang rivalry with South Los does not preclude a finding that he acted to defend Jose and Jose's cousin. Significantly, these arguments do not cure the evidentiary deficiency outlined above. Moreover, there was no evidence as to when defendant first became aware of the three South Los members vis-à-vis when he opened fire. Additionally, the fact that defendant shot one of the South Los members in the back and shot another in the head at point-blank range refutes defendant's contention that he was merely aiming to stop the fight rather than to kill.
Lastly, defendant argues any inconsistency between his "it wasn't me" defense at trial and "it was me, but I acted to defend others" on appeal is not a reason to deny him these instructions. We need not address this argument because, as explained above, he did not adduce substantial evidence to support an instruction on perfect or imperfect self-defense/defense of others.
B. Kill zone instruction
The crime of attempted murder requires a specific intent to kill. (Canizales, supra, 7 Cal.5th at p. 602, citing People v. Lee (2003) 31 Cal.4th 613, 623.) Consequently, a defendant who intends to kill one person, but shoots a second person instead, is not guilty of attempted murder of the second person. (People v. Bland (2002) 28 Cal.4th 313, 331 (Bland) ["transferred intent does not apply to attempted murder"].) However, because "a primary intent to kill a specific target does not rule out a concurrent intent to kill others" (Bland, at p. 331, fn. 6), a defendant who "specifically intend[s] to kill every single person in the area in which [his] primary target [is] located"—in the so-called "kill zone"—can be liable for the attempted murder of anyone in that area. (People v. McCloud (2012) 211 Cal.App.4th 788, 803 (McCloud); Canizales, supra, 7 Cal.5th at p. 606 [defendant liable under a "kill zone" theory if he "intentionally created a zone of fatal harm"].)
In Canizales, supra, 7 Cal.5th 591, our Supreme Court clarified that a defendant is guilty of the attempted murder of persons within a "kill zone" only if (1) "the circumstances of the defendant's attack on a primary target . . . are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target" and (2) "the alleged attempted murder victim who was not the primary target was located within that zone of harm." (Id. at p. 607.) It is not enough, the court clarified, to show that the defendant "acted with only conscious disregard of the risk of serious injury or death for those around a primary target." (Ibid.) The court went on to enumerate "the circumstances" bearing on the defendant's "intent to create a zone of fatal harm and the scope of any such zone"—namely, (1) "the type of weapon [the defendant] used," (2) "the number of shots fired (where a firearm is used)," (3) "the proximity of the alleged victims to the primary target," (4) "the distance between the defendant and the alleged victims," (5) whether the attack location was open or instead had a "limited means of escape," and (6) whether the defendant succeeded in hitting his primary target(s). (Id. at pp. 607, 610-611.) A "kill zone" instruction is appropriate, the court explained, "only in those cases where the [trial] court concludes there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm." (Id. at p. 608; see generally, People v. Gonzalez (2018) 5 Cal.5th 186, 197-198 [instructions are warranted only if supported by "substantial evidence"].)
The trial court properly gave the "kill zone" instruction because there was substantial evidence to support a jury determination that "the only reasonable inference from the circumstances of the offense" was that defendant "intended to kill everyone in [a] zone of fatal harm." (Canizales, supra, 7 Cal.5th at p. 608.) Defendant used a firearm to shoot between five and eight bullets at three rival gang members; although the attack occurred on a wide, public street, defendant was at most 25 to 27 feet away from all three rivals when he started shooting and eventually moved to point blank range; defendant was only eight feet away from Jose when the shooting began; and defendant's shots did not miss—he killed all three rival gang members and put a bullet in Jose's chest. By taking aim and shooting at the chest and head of everyone who stood in the compact area between himself and the rival gang members, the only reasonable inference is that defendant "intended to kill everyone in [a] zone of fatal harm." (Ibid.) These circumstances make this case very different than the facts of Canizales itself, where the defendant indiscriminately fired five shots at a crowd of people gathered on a "wide city street" at a neighborhood block party, where the defendant was firing from a distance of 100 to 160 feet and where the defendant hit none of his specific targets. (Id. at pp. 600, 610-611; accord, People v. Perez (2010) 50 Cal.4th 222, 232 (Perez) ["indiscriminate[ly] firing . . . a single shot at a group of persons, without more, does not amount to an attempted murder of everyone in the group"].)
Defendant responds with four arguments—two Canizales-based arguments made in his supplemental briefing and two in his original briefing.
First, he argues that the "kill zone" instruction the trial court gave was defective. As a threshold matter, we note that Canizales expressly declined to invalidate the standard CALCRIM 600 instruction (Canizales, supra, 7 Cal.5th at p. 598); instead, the court merely observed that "the standard instruction should be revised to better describe the contours and limits of the kill zone theory" spelled out in Canizales. (Id. at p. 609.) Although the kill zone instruction given in this case (understandably) did not enumerate the six "circumstances" Canizales identified as bearing on a defendant's "intent to create a zone of fatal harm and the scope of any such zone" and did not expressly state an attempted murder conviction is appropriate under a kill zone theory only if the "only reasonable inference" from these circumstances "is that the defendant intended to create a zone of fatal harm," the instruction given nevertheless set out the proper metes and bounds of the kill zone theory, metes and bounds that Canizales's elaboration chiefly served to reinforce. The instruction provided that (1) defendant could be held criminally liable for Jose's attempted murder under a kill zone theory only if "the People . . . prove that the defendant not only intended to kill [the three rival gang members], but also either intended to kill Jose [], or intended to kill everyone within the kill zone," and (2) the jury should acquit defendant "[i]f" it "ha[d] a reasonable doubt [about] whether . . . defendant intended to kill Jose [] or intended to kill [the three rival gang members] by killing everyone in the kill zone." This instruction was legally correct under Canizales because it (1) required the jury to find that defendant had the "inten[t] to kill" Jose or everyone in the "kill zone" (rather than "act[ing] with only conscious disregard of the risk . . . of death" to those in the zone) and (2) required the jury to acquit defendant of Jose's attempted murder if it harbored a reasonable doubt regarding defendant's intent to kill, which the jury would by definition harbor if the circumstances of the incident gave rise to a "reasonable inference" other than that "defendant intended to create a zone of fatal harm."
Second, and relatedly, defendant contends that the prosecutor misstated the law governing kill zones by seemingly arguing, during closing, that a conscious disregard of risk of death was sufficient to apply the kill zone theory. Defendant cites the following argument by the prosecutor: "As long as I intend to kill someone within the kill zone, anyone in that kill zone that gets hit is an attempted murder victim." In isolation, this appears to be a misstatement of the law. However, it is sandwiched between the prosecutor's prior arguments that define a "kill zone" as when a defendant "intend[s] to kill a specific victim and at the same time intend[s] to kill everyone in a particular zone of harm" and that, on the facts of this case, defendant "intend[ed] to kill everyone in a particular zone of harm." (Italics added.) This argument is insufficient to undermine the otherwise correct jury instruction on the kill zone. As our Supreme Court has noted, "[a] solitary, ambiguous statement, embedded within a lengthy closing argument," is not "sufficient to undermine the direct [and unambiguous] jury instructions" to the contrary. (People v. Hardy (1992) 2 Cal.4th 86, 190; cf. Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 622 [closing argument may be "relevant to evaluating the likelihood of [a jury's] misunderstanding" of an "ambiguity" in the jury instructions].)
Third, he argues that a "kill zone" can only exist in an enclosed area (such as a structure or a car), and not in an open area such as a crowd unless there is a "buffer zone" around a subset of people within the crowd. Canizales forecloses this argument by making the location of the attack one of many factors rather than a dispositive factor.
Lastly, defendant contends that two pre-Canizales cases, Cardona and McCloud, dictated a result in his favor. But these cases are distinguishable on their facts. In Cardona, the court held that the facts were "a poor fit for the kill zone theory" because the defendant in that case had tried to rob someone with a gun and then fired the gun when that person pulled a knife to resist the robbery. Importantly, "no witness testified that [the defendant] sprayed everyone near [his intended victim] with gunfire." (People v. Cardona (2016) 246 Cal.App.4th 608, 614-615, judg. vacated and cause remanded (2019) 2019 Cal. Lexis 6912.) In McCloud, the court held that a defendant who shot 10 bullets into a crowd could not be held liable for 46 counts of attempted murder on a kill zone theory because he did not fire enough bullets to kill everyone in the area. (McCloud, supra, 211 Cal.App.4th at pp. 799-801; accord, People v. Stone (2009) 46 Cal.4th 131, 136, 138 [same, for single shot into crowd of 10 people]; Perez, supra, 50 Cal.4th at p. 232 [single shot into group of eight people].)
II. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support the jury's findings that he committed the murders and attempted murder in a premeditated manner. For the three counts of first degree premeditated murder and the single count of attempted premeditated murder, the People were required to prove beyond a reasonable doubt that defendant acted with premeditation and deliberation. (§ 189 [defining first degree murder to include "any other kind of willful, deliberate, and premeditated killing"]; § 664, subd. (a) [prescribing life sentence for attempted murder that is "willful, deliberate, and premeditated"].) "'"Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance.'" (People v. Sandoval (2015) 62 Cal.4th 394, 424, quoting People v. Koontz (2002) 27 Cal.4th 1041, 1080.) What matters is "'the extent of the [defendant's] reflection,'" not the "'duration of time'" in which he undertakes it. (Ibid.) Our Supreme Court has identified three guideposts bearing on whether a defendant has acted with premeditation and deliberation: (1) the defendant's motive; (2) any planning activity; and (3) the manner of killing. (People v. Cage (2015) 62 Cal.4th 256, 276 (Cage), citing People v. Anderson (1968) 70 Cal.2d 15, 26-27.) In evaluating whether there is sufficient evidence to sustain a jury's findings of premeditation and deliberation, we examine whether the record, viewed in the "light most favorable to the" verdicts, contains "evidence which is reasonable, credible, and of solid value from which a rational trier of fact could find [the] defendant guilty beyond a reasonable doubt." (Cage, at p. 275.)
A. Evidence (viewed in the light most favorable to the verdict)
Defendant is a member of the Gardena 13 street gang. One of Gardena 13's rivals is the South Los gang. Defendant "usually" carries a nine-millimeter handgun on his person. On the night of the shootings, Jose's cousin saw defendant with a nine-millimeter handgun, and casings from a nine-millimeter handgun were recovered from the scene of the shooting. Defendant may have walked back to his car to retrieve the gun prior to the shooting. One of the South Los members died from a gunshot wound to the chest; another had two gunshot wounds, including one in his back; and the third died from a gunshot wound to the head from point-blank range.
B. Analysis
Looking to the three guideposts our Supreme Court has identified, there was substantial evidence from which a rational jury could conclude that defendant acted with premeditation and deliberation in shooting the three South Los members and Jose. As defendant concedes, he had a motive to shoot and kill his gang rivals, which supports a finding that he acted with premeditation and deliberation. Defendant also planned to have a loaded gun at the ready—either by carrying it on his person or by returning to his car to retrieve it. (Accord, People v. Lee (2011) 51 Cal.4th 620, 636 [bringing "a loaded handgun . . . indicat[es]" that a defendant was "consider[ing] the possibility of a violent encounter"]; In re Gray (2007) 151 Cal.App.4th 379, 407-409 [retrieving a weapon is evidence of premeditation].) And defendant's decision to shoot one of the South Los members at point-blank range in the head and another in the back indicates that defendant intended to execute these men. (Accord, In re Gray, at pp. 408-409 ["execution-style" killing is evidence of premeditation].) This would constitute substantial evidence of premeditation and deliberation outside the gang context. It is most certainly sufficient "in the context of a gang shooting," where "the time between the sighting of the victim and the actual shooting is very brief." (People v. Sanchez (2001) 26 Cal.4th 834, 849.)
Defendant makes four arguments to the contrary. First, he argues that there was no evidence that he was looking for trouble. But a long-gestating plan to kill is not required. (See People v. Memro (1995) 11 Cal.4th 786, 863 ["'"[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly"'"].) Second, defendant contends that Jose and his cousin dispute that defendant went to his car to retrieve his gun. This is of no concern because we disregard conflicting evidence when evaluating its substantiality (People v. Hernandez (2000) 22 Cal.4th 512, 526), and because, as noted above, defendant's act in carrying a loaded firearm with him on his person is also evidence of planning. Third, defendant asserts that firing a gun at close range is not evidence of prior planning and cites People v. Ratliff (1986) 41 Cal.3d 675, 695. The issue in Ratliff, however, was whether firing a gun at close range established a defendant's intent to kill, not whether the killing in that case was premeditated (id. at pp. 695-696); Ratliff's analysis is accordingly unhelpful. Lastly, defendant suggests that the fact he shot Jose indicates that the killing was unplanned. But it just as likely suggests that he was a bad shot or that he did not care whom he shot or killed in the course of killing the three South Los members. Because we draw all reasonable inferences in favor of the verdict (People v. Wong (2010) 186 Cal.App.4th 1433, 1444), we need not—and, indeed, cannot—draw the inference defendant requests.
III. Sentencing Error
Defendant argues, and the People concede, that he is entitled to a remand for the trial court to consider whether to strike the firearm enhancements imposed in this case. Among other things, Senate Bill 620 amended section 12022.53 to grant trial courts the discretion to strike enhancements for the personal use of a firearm. (§ 12022.53, subd. (h), as amended by Sen. Bill No. 620 (2017-2018 Reg. Sess.), Stats. 2017, ch. 682, § 2.) Because this law grants a trial court the discretion to mitigate or reduce a criminal sentence, it applies retroactively to all nonfinal convictions unless our Legislature has expressed a contrary intent. (People v. Francis (1969) 71 Cal.2d 66, 75-78; In re Estrada (1965) 63 Cal.2d 740, 744-745.) Our Legislature expressed no such intent with Senate Bill 620. Accordingly, defendant is entitled to the benefit of the amendments to section 12022.53 and thus is entitled to a remand to allow the trial court to exercise its newfound discretion. There is no clear indication in the record that the trial court would not have stricken this enhancement at the time of sentencing had it been aware of its discretion to do so. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
IV. Cumulative Error
Because we reject defendant's individual claims of error, we necessarily conclude there was no cumulative error. (Accord, People v. McWhorter (2009) 47 Cal.4th 318, 377 [no cumulative error where no individual error exists].)
DISPOSITION
The matter is remanded for the limited purpose of allowing the trial court to exercise its sentencing discretion under section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P.J.
LUI /s/_________, J.
ASHMANN-GERST