Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC588241
Bamattre-Manoukian, ACTING P.J.
Defendant Esteban Neri was convicted after jury trial of the murder of Edward “Eddie” Lopez and the attempted murder of Buffie Johnson and Luis Lopez (Pen. Code, §§ 187, 664, subd. (a)). The jury also found true allegations that all three offenses were committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that defendant personally discharged a firearm during the commission of the offenses, causing the death of Eddie and great bodily injury to Buffie (§§ 12022.53, 12022.7, subd. (a)). The trial court sentenced defendant to the indeterminate term of 100 years to life consecutive to the determinate term of 24 years eight months.
Further unspecified statutory references are to the Penal Code. In order to avoid confusion and to protect some witnesses’ identities, and without intending any disrespect, we will refer to some individuals by their first names.
On appeal, defendant contends that the evidence is insufficient to support either his conviction for the attempted murder of Luis or the gang allegations. He further contends that the trial court erred when it instructed the jury with CALCRIM No. 600, when it refused to give one of his requested instructions, when it ordered restitution to Eddie’s sister for lost wages, and when it imposed the aggravated term for the attempted murder of Buffie. We agree with defendant’s contention that the record does not support the contested restitution order, but disagree with his other contentions. Accordingly, we will modify the judgment by reducing the restitution ordered for Eddie’s sister and will affirm the judgment as so modified.
BACKGROUND
Defendant was charged by second amended information with the murder of Eddie Lopez (count 1) and the attempted murder of Buffie Johnson (count 2), Arthur Angelle (count 3), and Luis Lopez (count 4). (§§ 187, 664, subd. (a).) The information further alleged that all the offenses were committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)), that defendant personally discharged a handgun during the commission of all the offenses (§ 12022.53, subd. (d)), and that he personally inflicted great bodily injury during the commission of the offense in count 2 (§ 12022.7, subd. (a)).
The information also included charges against Lenin Ruiz, who is not a party to this appeal.
The Prosecution’s Case
The Current Offenses
Fourteen-year-old Ashley was at the park next to Kennedy School on Clemence Avenue around 7:00 p.m. on April 6, 2005, with her 18-year-old boyfriend Luis. Lenin Ruiz, also known as Smokey, was across Clemence Avenue from them walking toward Sultana Drive while talking with a guy on a bike. Lenin was wearing a hat belonging to Ashley’s 17-year-old brother Nicholas. Some weeks earlier, Lenin had taken Nicholas’s hat after three Sureño gang members, including Lenin and Luis Garcia, also known as “Smiley,” had tried to “jump” him. The hat was a black Chicago White Sox hat with white lettering. The three gang members had yelled “ ‘Sur trece’ ” when they ran away. Nicholas has problems with Sureño gang members because he often wears red.
Ashley saw Lenin when he was across the street from her. She became upset, she and Luis yelled insults at Lenin, and Lenin yelled back at them. Ashley asked Lenin if the hat he had was her brother’s hat. Lenin responded, “ ‘yeah, I jumped that fool, I earned it. If he wants it, he can come and get it.’ ”
Nicholas was playing basketball with friends at Kennedy School when Ashley called him on his cell phone. Ashley told Nicholas that the guy who took his hat was at the apartments next to the school. Nicholas went home and picked up an aluminum baseball bat. He was across the street from Lenin at the corner of Clemence and Sultana when Lenin saw him. Lenin ran into the apartment complex on the corner of Clemence and Fair Avenue. Nicholas ran after him. Ashley and Luis followed Nicholas. Nicholas disappeared into the apartment complex but reemerged within a few seconds. He said, “ ‘That’s who jumped me.’ ” Luis, Ashley, and Nicholas’s friends, who had joined them, then walked with Nicholas back to his house. Nicholas’s friends included 20-year-old Arthur and 22-year-old William. A few minutes later, Ashley, Luis, and Nicholas and his friends saw Lenin, Luis Garcia, and other Sureño gang members on Fair Avenue. Nicholas asked what happened to his hat and the two groups yelled at each other and challenged each other to fight.
Buffie, who is Ashley and Nicholas’s mother, was at home when she was told by another one of her children that Nicholas was about to get into a fight. Buffie drove to Fair Avenue in her car looking for Nicholas while Eddie, a friend, ran over there. When Buffie found Nicholas and Eddie, she stopped the car, got out, went over and stood between the people in Nicholas’s group and the people in Lenin’s group. She yelled at everybody to break it up and to leave. Lenin’s group ran down Fair Avenue toward McLaughlin. Nicholas and his friends followed Lenin’s group for about a block, then turned around and went back in the opposite direction to Buffie’s house. Buffie and Eddie followed Nicholas’s group home.
Buffie, Eddie, Ashley, Luis, Nicholas and his friends, two of Buffie’s younger children, and Buffie’s mother all stood outside Buffie’s home and talked. After about five minutes, a blue Honda hatchback quickly drove up the street toward them. It then quickly turned into a nearby driveway, turned around, and drove back the way it came. A few minutes later, a large group of people, some running, some on bicycles, came up the street towards Buffie’s house from the same direction the car had come. Lenin and Luis Garcia were part of this group. Some of the members of the group had bats, some had sticks, and some had crowbars.
Lenin approached Nick and said, “I’m back. I’m back.” Defendant was with Lenin’s group, sitting on a bicycle by the curb. Defendant pulled out a gun and pointed it at Buffie, who was standing next to Eddie. Buffie yelled, “He has a gun, go in the house.” William never saw a gun. Arthur, Luis, and Ashley saw the gun. Ashley and Luis identified defendant at trial as the person who held the gun. Nicholas saw two people with guns, one on a bicycle and one standing. Buffie told defendant to “to hold up to wait,” that she was going to call the police. She pulled out her phone as others started running to the garage. Buffie identified defendant at trial as the person who then shot her in the arm and continued shooting. Buffie received additional gunshot wounds to her side and neck and, when she turned around and tried to get inside her house, she was shot in the back. She fell on her face to the ground.
Ashley ran into to the garage before hearing gunshots. Luis had been standing in the driveway with Ashley, and he ran around the side of the garage to get inside. He heard gunshots before he got inside. One shot flew close by him and went into the side wall of the garage two to three feet in front of him. He heard more shots after he got inside. William ran to the garage as soon as he heard the first gunshot. He heard more gunshots as he ran and after he was inside the garage. Arthur ran inside the garage after seeing one shot being fired toward Buffie. He heard more shots after that. Arthur identified defendant at trial as the person who fired the first shot. Nicholas remembers one gun being fired four or five times towards his mother and Eddie, but does not remember the face of the person who fired it. After all the shots were fired, Eddie ran past Nicholas into the garage holding his hand over his chest. Ashley and Luis tended to Eddie, but he was wearing a red shirt and they did not see any injuries or blood on him. Somebody yelled, “Mom’s been shot.” William, Ashley, and Luis went outside and saw Buffie on the ground. Nick and William turned Buffie over onto her back and tended to her. Two people called 911. Someone yelled out “ ‘Sure trece’ ” as Lenin’s group left the area.
Arthur testified that at the time of defendant’s trial he was on parole after having been convicted of two felonies. He further testified to having committed three offenses as a juvenile.
The parties stipulated that the 911 calls were made on April 6, 2005, at 7:25 p.m.
The police arrived a few minutes later. They found various items lying in and around the yard—rocks, bricks, metal and wooden rods and bats—that could have been brandished as weapons. They also dug out a bullet from the outside wall of the garage. From the hole the bullet made in the wall, it was determined that the bullet was fired from the general area of the front yard or street.
Eddie died at the scene. He had received one gunshot wound to his back. The bullet was recovered from his body during his autopsy and was given to the police. Buffie was treated by paramedics at the scene and then was taken to the hospital. At the hospital two days later, April 8, 2005, officers showed Buffie six photographs to see if she recognized anyone. She indicated to the officers that the photograph of defendant looked like the person who shot her.
On April 6, 2005, 18-year-old Edubina was dating 19-year-old defendant, and defendant spent part of that day at her apartment. Edubina considered herself a Sureño gang member and associated with other Sureño gang members. She has three dots tattooed on her fingers. Defendant is a member of the VTG Sureño gang, and has VTG tattooed on the back of his head. VTG stands for Varrio Tamilee Gangsters.
At one point on the evening of April 6, 2005, Lenin came to Edubina’s apartment and asked defendant to do him a favor. After the two spoke for a while, Lenin and defendant both left. When defendant returned, he told Edubina that he had “blasted some busters.” He said that he had done a favor for Lenin. Defendant gave Edubina a gun wrapped in a T-shirt and asked her to hold it for him. She put the gun in her closet next to a bullet-filled sock that defendant had previously given her. Later that night, defendant took the gun back and left with it.
The next day, Edubina heard from someone in her neighborhood that somebody had been killed. She called defendant, who said that “nobody was going to fuck with him.” On April 9, 2005, defendant gave Edubina his gun and asked her to hold it. She put it in the front of her waistband and covered it with her shirt. Around 4:15 p.m. on April 9, 2005, officers stopped a pickup truck driven by Edubina in which defendant was a passenger. A .22 revolver was recovered from Edubina’s front waistband during a patdown search. Both Edubina and defendant were taken into custody. Defendant was wearing a San Jose Sharks hat with the letters “ESSJ” inside the bill, “Neri” written on another part of the bill, and an “X” inside one “S,” and a “3” inside another “S.” He also had a blue bandanna inside one of his pockets.
A tied-off sock containing 75 live rounds of .22 ammunition was found in a hallway closet in Edubina’s home. A sheathed knife was found in a coat closet near the front door of defendant’s home. Written on the sheath are the word “Tamilee,” the initials “VTG” and the Roman numeral “XIII.” “VTG” was carved on the hood and the word “Tamilee” was written on the trunk of a red model car that was found in a patio room at the back of the residence.
At the police station on April 9, 2005, Edubina told officers what defendant had told her and she said that defendant had given her the revolver. She was charged with being an accessory after the fact to murder (§ 32), at the direction of or in association with a criminal street gang. She entered into a plea agreement whereby she pleaded guilty to violating section 32, the gang enhancement was dropped, and she was released on supervised O.R., on condition that she testify truthfully in this case. Under the agreement, she could be sentenced up to three years in prison, but her sentencing was continued until after she concluded her testimony in this case. As a result, she has received threats and she and her family have moved from her old neighborhood.
A copy of the plea agreement was admitted into evidence as exhibit No. 92.
Three fingerprints were lifted from the seized revolver. Two prints were of no value. Defendant was excluded as the person who made the remaining print, which was found on the bottom of the gun. Edubina and an officer who handled the gun could not be excluded as donors of the print. A criminalist at the Santa Clara crime laboratory was unable to determine whether the recovered spent rounds were fired from the seized revolver. The revolver could not be excluded or identified as the gun that actually fired the spent rounds.
Gang Evidence
San Jose Police Detective Martin Corona testified to the following as an expert in Hispanic criminal street gangs. Norteño gang members are mostly from Northern California, north of Fresno, and claim Northern California as their territory. They associate with the color red, the number 14, and the letter N. Sureño gang members are mostly from Southern California and associate with the color blue, the number 13, and the letter M. Sureños sometime identify themselves by saying “sur trece.” The conflict between the Nortenos and the Sureños started in the state prisons in the conflict between the Mexican Mafia Sureño gang and the Nuestra Familia Norteño gang. A “buster” is a derogatory term Sureños use to describe Nortenos. A “scrap” is a derogatory term Nortenos use to describe Sureños.
San Jose used to be dominated by Norteño street gangs. However, in the late 1970s and early 1980s, Sureño gang members moved into the city. Currently, almost every Hispanic street gang in San Jose identifies themselves as either Norteño or Sureño. There are around 2600 Norteño gang members and associates in San Jose and around 1600 Sureño gang members and associates. Sureños from different gangs often “hang out” and commit crimes together.
In April 2005, VTG was an ongoing Sureño street gang with approximately 126 members. Defendant was an admitted member of VTG known as Spooky. He has VTG gang tattoos on the back of his head, his wrist and his leg. Edubina associates with VTG members. VPL, which stands for Varrio Peligrosos Locos or Varrio Paisanos Locos, was an ongoing Sureño street gang with approximately 145 members. Lenin and Luis Garcia are admitted members of VPL.
There are a lot of Norteno gangs in the areas surrounding the area VTG claims. Although Eddie was wearing a red shirt on the night he died, Detective Corona has no information that Eddie was ever associated with a gang. Detective Corona also had no information that Buffie, Nicholas, Luis, Arthur, or William were associated with a gang. Ashley has admitted to officers that she associates with Nortenos and she has said that Nicholas has “hung out” with Nortenos. Hispanic gang members often believe other young Hispanic males are gang members just because of their age, their race, the color of their clothing, or their statements.
In Detective Corona’s opinion, the primary activities of VPL are assaults, assaults with deadly weapons, robberies, and making threats. Two VPL gang members, Jorge Negrete and Jose Lopez, were convicted of assault with a deadly weapon upon Norteño gang members on April 24, 2003, and a third VPL gang member, Enrique Sanchez, was convicted on March 9, 2003, of assault with a deadly weapon in the presence of other Sureño gang members. One of the Sureños with Sanchez at the time of the assault was a VTG gang member. The primary activities of VTG are assaults, assaults with a deadly weapon, homicides, intimidation, and making threats. Two VTG gang members, Alejandro Calderon and Silvestre Caracheo were convicted of assault with a deadly weapon with other gang members in June 2001; Caracheo and another VTG gang member, Jose Rodriguez, were convicted of making criminal threats in February 2001 because a person had given information against another gang member; Juan Magana, another VTG gang member was convicted of dissuading a witness in November 2000 because a person had given information against a fellow VTG gang member; Ricardo Alvarado, another VTG gang member, was convicted of an assault with a deadly weapon against a Norteño gang member in June 1998; Victor Yepez, another VTG gang member, was convicted of the first degree murder of a suspected Norteño gang member in August 1997 that was committed in the company of several VTG gang members; and Gonzalo Polonco, another VTG gang member, was convicted of assault with a deadly weapon in March 2000.
In Detective Corona’s opinion, the killing of Eddie and the shooting of Buffie were done for the benefit of, at the direction of, or in association with a criminal street gang. His opinion is based on what happened, the prior crimes, and his knowledge of gangs. In the spring of 2005, in this particular neighborhood, the tension between Nortenos and Sureños was high; some gang homicides had occurred in the neighborhood in March 2005. Lenin and other Sureños had stolen Nicholas’s hat after fighting him. Nicholas and his friends later chased a group of Sureños out of the neighborhood, which would have been considered by the gang community as showing disrespect to the Sureño gang members. Sureño gang members, not just the ones that were chased away, were then required by their gang culture to retaliate for that disrespect and to step up the violence. “[T]hey have to show that they’re – they’re not going to stand down. They have to maintain that they are a powerful gang in that area. They have to keep control of that area or else they lose it.” If they do nothing, other Sureño gang members will disrespect them and Norteño gang members will take away their territory. If they kill one of the people who chased them off, “that’s basically a trophy for them.” They would use it as a message to neighborhood residents and to other gangs that this is how similar situations will be handled by the gang. The status of the gang member who actually does the killing is also raised within his own gang.
The Defense Case
San Jose Police Officer John McElvy transported Ashley to the police station after the shooting and interviewed her. Ashley said that, prior to the shooting, Nicholas and his friends were involved in a confrontation with Lenin and Luis Garcia. She said that Nicholas swung a baseball bat at Lenin, but Buffie got between them and Lenin ran off. She said she saw a Blue Honda drive down the street and somebody stick their arm out of the car, making a waving motion, and that within minutes people started running to her home. She said that she was at her home when shots were fired by a Hispanic male in his early 20s who was about six feet tall. She said that the shooter was not Lenin, but that she did see Lenin and Luis Garcia in the street at the time of the shooting. Sometime before the interview, Ashley had marked “XIV” in red on the webbing between the thumb and index finger of her left hand.
Defendant is about five feet, six inches tall.
Officer Kirk Niemeyer transported Luis to the police station after the shooting and interviewed him. Luis said that the average age of the people he saw coming toward Ashley’s house was between 15 and 16 years old, and that they were not wearing gang clothing. He said that he saw somebody reach for something in his waistband but he never saw a gun. He just heard shots ring out after he was in the garage.
Officer Stewart Davies interviewed Luis at the police station. Luis said that, in the group of about 10 people that came toward Ashley’s house, he saw a Hispanic male carrying a rock and a male on a bicycle who reached for his waistband. Luis said that he did not see a gun, but he ran into the garage with Ashley, after which he heard a few shots.
Officer Andrew Binder interviewed Nicholas at the scene. Nicholas said that he saw 10 males running toward his house, two of whom had what he thought were BB guns. He did not mention any bicycles. He described one shooter as a Hispanic male, approximately 23 years old, 5’8” tall and weighing 220 pounds. He could not describe the other shooter. He also said that he heard “ ‘Sur trece’ ” being yelled out as the group ran away.
Sergeant Pete Ramirez interviewed Arthur on April 8, 2005. Arthur said that Buffie yelled profanity at the group confronting Nicholas and his friends when she drove up. He said that one of the men in the group that later approached the house was in his mid 20s, and looked older than the rest of the group. He said that the person who shot the gun was not present at the earlier confrontation. He did not mention a bicycle.
Buffie’s son Buddy, who was 12 years old on April 6, 2005, saw Nicholas having an argument with four people, including Lenin and Luis Garcia, on that date. William, Ashley, and Luis were with Nicholas. Lenin’s group ran away and Nicholas’s group went to his house. Buddy was outside the house when a group of people walked up. Lenin was riding a bicycle. He saw Lenin pull a semi-automatic handgun out of his waistband, point it at Buffie, and shoot. Buddy ran into the garage, looked out a window, and again saw Lenin shooting the handgun toward Buffie. Defendant was with Lenin’s group at the time Buffie was shot.
The Verdicts, Motion for New Trial, and Sentencing
On July 17, 2007, after the parties rested, the court granted the prosecutor’s request to dismiss count 3, the charge of the attempted murder of Arthur, and agreed to call count 4, for purposes of the remaining trial, count 3. On July 18, 2007, the jury found defendant guilty of counts 1 through 3, and found all enhancement allegations to be true.
Defendant filed a motion for new trial on August 28, 2007, as to the attempted-murder count involving Luis, and the prosecutor filed opposition. On September 7, 2007, the court denied the motion for new trial and sentenced defendant to prison for the indeterminate term of 100 years to life consecutive to the determinate term of 24 years eight months. The court also ordered defendant to pay various fines and fees, and victim restitution in the amount of $2,000 to Buffie, $576 to Eddie’s sister Melinda Adame, and $12,316.20 to the Victim Compensation Government Claims Board.
DISCUSSION
Sufficiency of the Evidence
The Attempted Murder of Luis
Defendant first contends his conviction for the attempted murder of Luis violates his right to due process because the evidence is insufficient to show that he possessed the requisite specific intent. “[T]he prosecution failed to prove beyond a reasonable doubt that [defendant] had the specific intent to kill Luis Lopez when he fired his gun in an area characterized by the prosecutor as the ‘kill zone.’ ” “The evidence demonstrates Luis Lopez was not in Eddie Lopez’s immediate vicinity. It also demonstrates [defendant] did not use a particularly lethal method of attack. Therefore, the concurrent intent concept articulated in [People v. Bland (2002) 28 Cal.4th 313 (Bland)] is inapplicable. No other evidence showed [defendant] had the requisite intent. Since the evidence on the element was insufficient, the jury’s verdict for the attempted murder of Luis Lopez violated his constitutional rights to due process of law.”
The Attorney General contends that the evidence is sufficient to support the conviction as “Luis Lopez was, contrary to [defendant’s] claim, ‘in Eddie Lopez’s immediate vicinity’ and [defendant] ‘use[d] a particularly lethal method of attack.’ ”
“ ‘In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [conclusion of the trier of fact], not whether the evidence proves guilt beyond a reasonable doubt.’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 139; see also, People v. Catlin (2001) 26 Cal.4th 81, 139 (Caitlin).) “[W]e do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether ‘ “ ‘any rational trier of fact could have found the essential elements of [defendant’s] crime beyond a reasonable doubt.’ ” [Citations.]’ [Citation.]” (People v. McCleod (1997) 55 Cal.App.4th 1205, 1221.)
“Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. [Citation.]” (Bland, supra, 28 Cal.4th at p. 327.) “In contrast, ‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citations.] Hence, in order for defendant to be convicted of the attempted murder of [Luis], the prosecution had to prove he acted with specific intent to kill that victim. (Bland, supra, 28 Cal.4th at p. 331.)” (People v. Smith (2005) 37 Cal.4th 733, 739.)
“[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .” [Citation.]’ [Citations.]” (Smith, supra, 37 Cal.4th at p. 741.)
In Bland, our Supreme Court held that the doctrine of “transferred intent” applies to murder but not to attempted murder. (Bland, supra, 28 Cal.4th at pp. 317, 327.) “In its classic form, the doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder.” (Id. at p. 317.) However, the court also held that “[t]he 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. . . . [T]he person might still be guilty of attempted murder of everyone in the group, although not on a transferred intent theory.” (Id. at p. 329.)
“[A] shooter may be convicted of multiple counts of attempted murder on a ‘kill zone’ theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the ‘kill zone’) as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm. (Bland, supra, 28 Cal.4th at pp. 329-330.) As we explained in Bland, ‘This concurrent intent [i.e., “kill zone”] theory . . . is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.’ (Bland, supra, 28 Cal.4th at p. 331, fn. 6.)” (Smith, supra, 37 Cal.4th at pp. 745-746.)
In Bland, the defendant shot at the driver of a car who was a rival gang member. In the car with the driver were two passengers, neither of whom were gang members. The driver died as a result of his gunshot wounds, but the two passengers survived their wounds. A jury convicted the defendant of the murder of the driver and the premeditated attempted murder of the two passengers. (Bland, supra, 28 Cal.4th at p. 318.) Our Supreme Court held that “[e]ven if the jury found [the] defendant primarily wanted to kill [the driver] rather than [his] passengers, it could also have found a concurrent intent to kill those passengers when [the] 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.” (Id. at pp. 330-331.)
Here, the evidence established that defendant used lethal force designed and intended to kill everyone around his targeted victim. Buffie was standing in the front yard of her home with Nicholas. Eddie was nearby, as were Nicholas’s friends Arthur and William and other members of Buffie’s family. Ashley and Luis were in the driveway of the home. Defendant fired a flurry of bullets at the gathering from close range. He thereby used lethal force and created a kill zone. Buffie was immediately hit. Eddie and Luis attempted to flee the flurry of gunshots by running into the garage of the home. Eddie was shot in the back. One of the shots passed close by Luis and lodged into the side wall of the garage two or three feet in front of him. The act of firing toward Luis at close range in a manner that would have inflicted a fatal wound if the bullet had been on target is sufficient to support an inference of intent to kill. (Smith, supra, 37 Cal.4th at p. 741.) Even if the jury found that defendant primarily wanted to kill Buffie or Eddie, it could also have found a concurrent intent to kill Luis. (Bland, supra, 28 Cal.4th at pp. 330-331.) Either finding would fully support the attempted murder conviction as to Luis, and there is substantial evidence to support either finding.
The Gang Enhancements
Defendant also contends that the evidence is insufficient to support the gang enhancements. Specifically, he argues that the prosecutor failed to establish the predicate offenses were committed by VPL or VTG gang members. “[T]he prosecution produced documentary evidence it believed proved eight documented crimes were in fact committed by a VTG or VPL gang member.” “Paired with the documentary evidence, the prosecution offered the testimony of a gang expert . . . . The sum of this evidence, however, was insufficient to prove true the gang allegation. Although the documentary evidence proved relevant statutorily enumerated crimes had been committed, there was insufficient evidence the crimes were committed by VPL or VTG gang members.” This is so, defendant claims, because the gang expert’s testimony was “insufficient to establish the necessary legal foundation for [his] identification of these persons as VTG or VPL gang members.”
The Attorney General contends that “Detective Corona reviewed the underlying records regarding the convictions for the persons he concluded were VPL and VTG gang members and his testimony was sufficient to establish the basis for his conclusion as to each one.”
The same standard of review applies to claims of insufficiency of the evidence to support a gang enhancement finding as for a conviction. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224; People v. Ortiz (1997) 57 Cal.App.4th 480, 484.) “We examine the record to determine ‘whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Further, ‘the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (Catlin, supra, 26 Cal.4th at p. 139.)
To subject a defendant to the penal consequences of section 186.22, “the prosecution must prove that the crime for which the defendant was convicted had been ‘committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist any criminal conduct by gang members. (§ 186.22, subd. (b)(1) . . . .) In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period. (§ 186.22, subds. (e) and (f).)” (People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley).)
“Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony as occurred in Gardeley, supra, 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members,’ together with information from colleagues in his own police department and other law enforcement agencies. (Gardeley, supra, at p. 620.)” (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.)
To prove the predicate offenses, the prosecution must prove “that the gang includes members who either individually or collectively engaged in a pattern of criminal activity by committing, attempting to commit or soliciting two or more predicate offenses during the statutorily defined period (at least one offense committed after September 26, 1988, and the last of the offenses committed within three years after a prior offense), by two or more persons, committed on separate occasions. (Pen. Code, § 186.22, subd. (e); [Gardeley, supra,] 14 Cal.4th 605, 616-617.) It is not, however, necessary to show that the predicate offenses themselves were gang related. (14 Cal.4th at pp. 621-623.)” (In re I.M. (2005) 125 Cal.App.4th 1195, 1206.)
In this case, Detective Corona testified that he had personally investigated about 160 Hispanic criminal street gang cases during his three years with the San Jose Police Department. During his entire career, he had contacted over 2,000 gang members, he had been the primary investigating officer in at least 500 Hispanic gang cases, and he had assisted in investigating over 300 other gang-related cases. He also testified that, besides his on-the-job training, he had attended several gang conferences and courses throughout his career. Based on his training and experience, Corona was found to be an expert in the area of Hispanic criminal street gangs. Corona testified as an expert that defendant was an admitted member of the VTG gang and that, in his opinion VTG was primarily engaged in various statutorily enumerated felonies, including assault with a deadly weapon and witness intimidation. (See § 186.22, subd. (e).) Corona presented documentary evidence of convictions for such statutorily enumerated offenses and he testified that, because of the facts he described underlying the documented convictions, those offenses were committed by VTG gang members other than defendant. The offenses Corona testified were committed by VTG gang members were an assault with a deadly weapon by Alejandro Calderon and Silvestre Caracheo in June 2001, the making of criminal threats by Caracheo and Jose Rodriquez in February 2001, the dissuading a witness by Juan Magana in November 2000, an assault with a deadly weapon by Ricardo Alvarado in June 1998, a first degree murder by Victor Yepez in August 1997, and an assault with a deadly weapon by Gonzalo Polonco in March 2000. The court instructed the jury that in evaluating the believability of an expert witness, it could consider “the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for the opinion, and the facts or information on which the expert relied in reaching that opinion.” (See CALCRIM No. 332.) Based on this record, we find that Corona’s expert testimony was sufficient to prove that VTG gang members have committed the required predicate offenses. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324; In re I.M., supra, 125 Cal.App.4th at p. 1206; see also People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657 [listing gang topics for which expert testimony may be admitted, including an individual’s membership in or association with a gang].) Therefore, substantial evidence supports the gang enhancement.
CALCRIM No. 600
Defendant submitted five proposed jury instructions. During discussions on the record regarding all the proposed instructions, the court stated that it refused two of defendant’s proposed instructions and accepted three others in part, incorporating them into certain other instructions. One proposed instruction was incorporated in part into CALCRIM No. 600. As so modified, the court instructed the jury pursuant to CALCRIM No. 600 as follows: “The defendant is charged in Counts 2 and 3 with the attempted murder of Buffie Johnson and Luis Lopez, respectively, in violation of Penal Code section 664(a)-187. [¶] To prove that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant took a direct but ineffective step toward killing another person; AND [¶] 2. The defendant intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] An attempted murder is not committed as to all persons in a group simply because a gunshot is fired indiscriminately at them. However, a person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or ‘kill zone.’ In order to convict the defendant of the attempted murder of Luis Lopez, the People must prove that the defendant not only intended to kill Buffie Johnson and/or Eddie Lopez but also either intended to kill Luis Lopez, or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Luis Lopez or intended to kill Buffie Johnson or Eddie Lopez by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Luis Lopez.”
The proposed instruction was as follows: “An attempted murder is not committed as to all persons in a group simply because a gunshot is fired indiscriminately at them or that a gunshot fired at one person missed its mark and almost strikes another person.”
During the prosecutor’s opening argument to the jury, he stated the following. “But in this case you’ve also been instructed on a legal theory called the kill zone. And what that is, is that’s different than the transferred intent legal theory I told you about before. Kill zone is you can make a finding that the defendant shot at a group of people and he was intending on killing one or more people in that group. [¶] And you can also make a finding by the way that he was acting that, when he shot that gun into the group of people, he was intending on killing anybody he was shooting at, including the person he was shooting at so when Eddie Lopez, Luis Lopez and Ashley Garcia, all those people are running into the garage, any shooting at that group, he’s firing in what we would call a kill zone, zone of harm, people that are at risk and he just shoots Eddie Lopez and he misses --.”
Defendant’s counsel interrupted the prosecutor’s argument, stating: “Your Honor, I hate to interrupt, but, during an argument, I believe that’s an inaccurate statement of the law as far was what a kill zone stands for.” The court responded: “Ladies and gentlemen, as I instructed you previously, what the lawyers say about the law is secondary to what I told you. Follow my instructions on the law and lawyers are going to interpret the law and might not say it quite accurately so follow my instruction.”
Defendant now contends that CALCRIM No. 600 as given, coupled with the prosecutor’s argument to the jury, lowered the prosecution’s burden of proof. “Although the kill zone paragraph advises the jury a defendant must have the specific intent to kill a ‘specific victim,’ it fails to ‘define[] in some manner for the jury . . . what precisely constitutes a kill zone.’ In other words the trial court failed to include language derived from People v. Bland which gave the jury the factors it must consider when deciding whether a defendant had the specific intent to kill using the ‘kill zone’ theory.” Defendant further contends that the prosecutor’s argument compounded the court’s error.
We evaluate defendant’s challenge to CALCRIM No. 600 by considering the instructions as a whole. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237 (Campos).) An instruction is only misleading if in the context of the entire charge there is a reasonable likelihood the jury misconstrued or misapplied its words. (Id. at p. 1243.) Here, it is not reasonably likely that the jury could have misapplied CALCRIM No. 600 as given.
The jury was properly instructed on the elements of attempted murder, including the requirement of the specific intent to murder the person whose attempted murder is charged. CALCRIM No. 600 as given sufficiently states the elements of the offense. “The ‘kill zone’ portion of CALCRIM No. 600 was superfluous. That theory ‘is not a legal doctrine requiring special jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.’ ” (Campos, supra, 156 Cal.App.4th at p. 1243, quoting Bland, supra, 28 Cal.4th at p. 331, fn. 6; see also Smith, supra, 37 Cal.4th at p. 746.)
CALCRIM No. 600 as given defined “kill zone” as that “particular zone of harm” surrounding “a specific victim or victims.” Nothing in Bland suggests that in order to create a “kill zone” there must be a perimeter with a discreet, tangible boundary. It is the nature and scope of the attack that determines whether a “kill zone” is created. It occurs when the attack is directed at a primary victim, but executed in such a fashion as “ ‘to ensure harm to the primary victim by harming everyone in that victim’s vicinity.’ ” (Bland, supra, 28 Cal.4th at p. 329.) Here, Buffie, Eddie, and Luis were in the front of Buffie’s house when they were sprayed with bullets. Buffie was hit by more than one shot. One shot hit Eddie in the back as he was trying to get away, and one shot hit the side of the garage right in front of Luis. On these facts, a “kill zone” was created.
In addition, “the ‘kill zone’ instruction as given here, while ambiguous, is not necessarily inconsistent with Bland. While it states that proving defendant guilty of the attempted murder of [Luis Lopez] requires proof that he intended to kill not only [Buffie Johnson and/or Eddie Lopez], but [Luis Lopez] or ‘anyone within the kill zone’ . . . it adds, “If you have a reasonable doubt whether the defendant intended to kill [Luis] or intended to kill [Buffie Johnson or Eddie Lopez] by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder . . . .’ (CALCRIM No. 600, . . .) This language is consistent with Bland and directed the jury that it could not find [defendant] guilty of attempted murder of [Luis] under a ‘kill zone’ theory unless it found that he intended to harm ‘everyone’ in the zone.” (Campos, supra, 156 Cal.App.4th at p. 1243.)
Furthermore, “in the context presented here, there is little difference between the words ‘kill anyone within the kill zone’ and ‘kill everyone within the kill zone.’ In both cases, there exists the specific intent to kill each person in the group. A defendant who shoots into a crowd of people with the desire to kill anyone he happens to hit, but not everyone, surely has the specific intent to kill whomever he hits, as each person in the group is at risk of death due to the shooter’s indifference as to who is his victim.” (Campos, supra, 156 Cal.App.4th at p. 1243.)
People v. Anzalone (2006) 141 Cal.App.4th 380, cited by defendant, does not help him. In that case, the court did not instruct the jury with either CALCRIM No. 600 or an analogous instruction, CALJIC No. 8.66.1. (Id. at p. 390.) In addition, the prosecutor told the jury in opening argument that “ ‘[a]nytime someone is within the zone of danger, whether it be one, two, three or twenty people, somebody indiscriminately shoots towards a crowd of people, everything in that zone of danger qualifies. That is how you can get three counts of attempted murder based on the gunshot at the bumper of the car.’ ” (Id. at p. 391.) Here, the court instructed the jury with CALCRIM No. 600 and specifically instructed the jury, at defendant’s request, that “[a]n attempted murder is not committed as to all persons in a group simply because a gunshot is fired indiscriminately at them.” It also instructed the jury during the prosecutor’s argument that it was to follow the law as instructed by the court and that the prosecutor might not accurately interpret the law. Even assuming without deciding that the prosecutor’s argument was an inaccurate interpretation of the law as defendant contends, defendant has not shown that the court’s instruction was erroneous.
The Refused Instruction
One of the two jury instructions that defendant proposed and the court refused to give stated: “Before you may find the defendant guilty of attempted murder as to a particular person you must find that the prosecutor has proved beyond a reasonable doubt both that the defendant had the specific intent to kill and that he had the intent to kill the person named. As to each of the persons named in counts two through four of the information you must find that the defendant had the specific intent to kill that particular individual before you may find him guilty of the charged offense. You must separately determine as to each of the people named in counts two, three and four whether the defendant had the specific intent to kill that particular person.”
Defendant now contends that the court erred in refusing this proposed instruction because the instruction included language “encompassing the heart of CALCRIM [No.] 3515,” which tells the jury that it must consider each count separately and return a separate verdict for each count; the court is not required to give CALCRIM No. 3515 sua sponte but should give it upon request; and no other instruction given by the court advised the jury that it had to consider each count separately. Defendant argues that the court’s failure to give his proposed instruction was prejudicial because, without an instruction to consider each count separately, “it is reasonably probable the jury reasoned if [defendant] had the intent to kill Eddie Lopez, then it must have coexisted as to Luis Lopez because of his presence in the undefined ‘kill zone.’ ”
The Attorney General contends that defendant’s proposed instruction is an incorrect statement of the law, and that it conflicts with CALCRIM No. 600. The Attorney General further notes that the court did instruct the jury that it must decide each count separately, when it gave a lengthy instruction based on CALCRIM No. 640 on the procedure the jury must follow in deliberating and completing the verdict forms. We agree with the Attorney General.
The trial court correctly instructed the jury pursuant to CALCRIM No. 600 that “in order to convict the defendant of the attempted murder of Luis Lopez, the People must prove that the defendant not only intended to kill Buffie Johnson and/or Eddie Lopez but also either intended to kill Luis Lopez, or intended to kill anyone within the kill zone.” Therefore, defendant’s proposed instruction conflicted with CALCRIM No. 600 by stating the jury had to find that defendant “had the specific intent to kill that particular individual before you may find him guilty of the charged offense.” The proposed instruction further states that the jury must separately determine as to Buffie and Luis, the victims of counts 2 and 3, whether the defendant had the specific intent to kill that particular person. However, that statement conflicts with CALCRIM No. 600, which permits the jury to convict defendant of the attempted murder of Luis if it found defendant intended to kill Buffie and/or Eddie and also intended to kill anyone within the kill zone. Accordingly, we cannot say that the court erred in refusing to give defendant’s proposed instruction.
Victim Restitution
The probation report states that Eddie’s sister, Melinda Adame, requested victim restitution in the amount of $576: $250 for unpaid burial expenses and $326 for lost wages. “In order to attend defendant Neri’s trial on three dates, she did not go to work on those occasions, at a wage loss of $326.00.” At the sentencing hearing, defendant’s counsel argued that, as to the wage loss request, “I don’t believe that under the restitution statute that can be ordered as an item of restitution.” When ordering victim restitution, the court ordered defendant to pay Adame $576, finding that she “suffered economic loss as a result of the defendant’s criminal conduct in [that amount].” Defense counsel again objected. “[A]s indicated I believe the appropriate amount of restitution the court could lawfully – the $576 claimed by Miss Adam[e] which is for wages lost when she chose to attend the trial, I don’t believe under the restitution code section the court is authorized to award restitution for that purpose.” The court did not specifically respond to the objection.
On appeal, defendant contends that the court erred when it ordered him to pay Adame $326 for lost wages, as compensation for lost wages is allowed only if the victim’s wages were lost “due to time spent as a witness or in assisting the police or prosecution.” (§ 1202.4, subd. (f)(3)(E).) The Attorney General concedes that the court erred. “A review of the record does not show the basis upon which the court concluded that wage restitution was proper. A remand in this regard would be proper.”
“It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (§ 1202.4, subd. (a)(1).) Thus, “[i]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims . . . .” (§ 1202.4, subd. (f).) The restitution order “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as a result of the defendant’s criminal conduct, including, but not limited to, all of the following: [¶] . . . [¶] (E) Wages or profits lost by the victim . . . due to time spent as a witness or in assisting the police or prosecution.” (§ 1202.4, subd. (f)(3).)
The trial court must have a factual and rational basis for the amount of restitution it orders. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) We review a restitution order for abuse of discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) “Under that standard, we are required to keep in mind that even though the trial court has broad discretion in making a restitution award, that discretion is not unlimited. While it is not required to make an order in keeping with the exact amount of loss, the trial court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary and capricious. [Citations.]” (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) “Restitution orders may not be based merely upon the trial court’s subjective belief regarding the appropriate compensation; there must be a factual and rational basis for the amount ordered . . . .” (People v. Carbajal (1995) 10 Cal.4th 1114, 1125.)
There is no question that Eddie’s sister is a “victim” for purposes of the victim restitution statutes. (§ 1202.4, subd. (k)(3)(A).) However, the statutes authorize restitution to a victim for economic loss on the basis of lost wages only “due to time spent as a witness or in assisting the police or prosecution.” (§ 1202.4, subd. (f)(3)(E).) Eddie’s sister told the probation officer that she lost $326 in wages while she attended defendant’s trial. However, Eddie’s sister did not testify as a witness at defendant’s trial and there is nothing in the record to suggest that she otherwise assisted the police or prosecution. When defense counsel objected to the probation officer’s recommendation that the court include the $326 in its victim restitution order, the court did not state its reasons for overruling that objection. Accordingly, we cannot say that the record supports the trial court’s order. We will modify the restitution order by reducing the victim restitution to Melinda Adame to $ 250.
Imposition of the Upper Term
The trial court sentenced defendant as follows: On count 1, 25 years to life under the indeterminate sentencing law for the murder of Eddie, consecutive to 25 years to life for the section 12022.53, subdivision (d) enhancement; on count 2, the upper term of nine years for the attempted murder of Buffie, a consecutive term of 10 years for the section 186.22, subdivision (b)(1) enhancement, and a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement; on count 4, consecutive terms of one-third the middle term of seven years, or two years four months, for the attempted murder of Luis, a consecutive one-third the term of 10 years, or three years four months, for the section 186.22, subd. (b)(1) enhancement, and a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement. Defendant’s total term was 100 years to life consecutive to 24 years eight months.
While sentencing defendant on count 2, the attempted murder of Buffie, the court stated in part: “Now, in order to determine whether to sentence the defendant to the upper, the lower or the midterm of the three terms prescribed by law, the court has considered the circumstances in aggravation, the circumstances in mitigation set out in the rules of court as well as other factors reasonably related to the sentencing decision. [¶] As to count two, the court has selected the upper term as the sentence. The reasons for the selection of the upper term are as follows: [¶] One, the defendant shot the victim not just once but three or four times. [¶] Two, the victim was standing in front of her home attempting to prevent violence. [¶] Three, the defendant was only a few feet from the victim when he opened fire without any reasonable provocation. [¶] Further, the court finds that any one of those reasons would justify selection of the term indicated.”
Defendant’s counsel objected to the imposition of the upper term. He argued: “With regard to the court’s specification and factors for imposing the aggravated term, . . . I believe that each one of those factors are factors that need to be – Mr. Neri has a Sixth Amendment right to have the factors determined by a judge [sic], Cunningham v. California [(2007) 549 U.S. 270 (Cunningham).] I believe the court erred in imposing upon Mr. Neri those determinations and I also believe it’s to be proved beyond a reasonable doubt not by preponderance of the evidence.”
On appeal, defendant contends that the trial court violated his rights to a jury trial and proof beyond a reasonable doubt when it imposed the upper term on count 2 based on factors not found true by a jury beyond a reasonable doubt. The Attorney General contends that the court did not err as “the aggravating circumstance that [defendant] shot Buffie Johnson without reasonable provocation was inherent in the jury’s verdict which in convicting [defendant] of attempted murder rejected his claim of provocation which would have reduced the crime to attempted voluntary manslaughter.” Alternatively, the Attorney General contends that any error is harmless, citing People v. Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval).)
“To determine whether [Cunningham] error is harmless, we ask ‘whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.’ (Sandoval, [supra, 41 Cal.4th] at p. 838.) More precisely, we must ask whether we can conclude, ‘beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury.’ (Id. at p. 839.)” (People v. Wilson (2008) 44 Cal.4th 758, 812; see also People v. Esquibel (2008) 166 Cal.App.4th 539, 558; People v. Baughman (2008) 166 Cal.App.4th 1316, 1323.) Applying that standard here, we conclude that any possible Cunningham error was harmless beyond a reasonable doubt.
Two of the aggravating factors cited by the trial court in imposing the upper term on count 2 were that “defendant shot the victim not just once but three or four times,” and that “the victim was standing in front of her home attempting to prevent violence.” The first of these factors—that defendant shot the victim three or four times—corresponds to rule 4.421(a)(1) of the California Rules of Court. Buffie testified that defendant shot her in the arm and then kept shooting. She thereafter was shot in the side, back and neck. She was shot in the back when, after a couple of shots, she tried to turn around and go inside her house. Buffie also testified that the shooting occurred after she put her hand up, telling defendant “to hold up to wait,” and that she was going to call the police. Other witnesses testified that the shooting occurred after Buffie said that she was going to call the police, and that she had earlier broken up a confrontation between Nicholas’s group and Lenin’s group down the street from her home.
“Circumstances in aggravation include factors relating to the crime and factors relating to the defendant. [¶] (a) Factors relating to the crime, whether or not charged or chargeable as enhancements include that: [¶] (1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; . . .” (Cal. Rules of Court, rule 4.421.)
Defendant did not dispute that the shooting occurred, or where or when it occurred. Nor did he dispute Buffie’s claim of injuries. His defense was simply that he was not the shooter. The jury chose to believe the prosecution witnesses, finding that defendant personally discharged a firearm during the commission of the offense. Under these circumstances, had the issue of the number of times Buffie was shot or the issue of whether the shooting occurred while Buffie was standing in front of her home and after she attempted to prevent violence been tendered to the jury, we conclude beyond a reasonable doubt that the jury, applying the same standard, would have sustained either or both allegations. (See Wilson, supra, 44 Cal.4th at p. 813.) Accordingly, any Cunningham error with respect to count 2 was harmless beyond a reasonable doubt. (Ibid.; see also Sandoval, supra, 41 Cal.4th at p. 839.)
DISPOSITION
The judgment is ordered modified by reducing the victim restitution to Melinda Adame from $576 to $250. As so modified, the judgment is affirmed.
WE CONCUR: Mcadams, J., Duffy, J.