Opinion
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. VCF124560. Patrick J. O'Hara, Judge.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
By information filed July 8, 2004, in Tulare County Superior Court, appellant Manuel Rodriguez, Jr., was charged with a number of offenses arising out of events occurring on March 15, 2004. As finally amended, the information charged appellant with attempted premeditated murder of Victor S. (Pen. Code, §§ 187, subd. (a), 664, subd. (a); count 1), conspiracy to commit robbery and felonious assault (§ 182, subd. (a)(1); count 2), attempted robbery of Mark P. (§ 211 ; count 3), attempted robbery of Trajinder S. (§ 211; count 4), and assault with a deadly weapon and by means of force likely to produce great bodily injury on Victor S. (§ 245, subd. (a)(1); count 5). As to each count, it was further alleged that the offense was committed for the benefit of or in association with a criminal street gang (§ 186.22,, subd. (b)(4); count 1; id., subd. (b)(1); counts 2-5)), and involved the use of a deadly weapon (§ 12022, subd. (b)(1)). As to all but count 4, it was also alleged that the offense involved the personal infliction of great bodily injury (§ 12022.7, subd. (a)) and great bodily injury causing the victim to become comatose due to brain injury (id., subd. (b)).
All statutory references are to the Penal Code unless otherwise stated.
The information omitted any reference to section 664 in counts 3 and 4.
Following a jury trial, appellant was convicted on all counts, and the gang enhancement and deadly weapon use allegations were found to be true. As to counts 1, 2, and 5, jurors found true the allegation that appellant personally inflicted great bodily injury, but not true the allegation that he personally inflicted great bodily injury causing the victim to become comatose due to brain injury. As to count 3, jurors found both great bodily injury enhancement allegations not true. Appellant subsequently was sentenced to prison for seven years to life with the possibility of parole on count 1, plus a consecutive 10-year term for the gang enhancement, a consecutive three-year term for the great bodily injury enhancement, and a consecutive one-year term for the weapon use enhancement. The court imposed concurrent terms on counts 2, 3, and 4, and stayed sentence on count 5 pursuant to section 654.
Christopher Rene Delgadillo, Joseph Michael Tienda, and Eddie Ramirez II were jointly charged and tried with appellant. Delgadillo was convicted on counts 2 through 4 and the gang enhancement allegations were found to be true. His appeal is before this court in case No. F050151. Tienda was convicted on all counts and various enhancement allegations were found to be true. His appeal is before us in case No. F050175. Ramirez was convicted on all counts, albeit of attempted voluntary manslaughter in count 1, and the gang enhancement allegations were found to be true. It appears he has not appealed.
In this timely appeal, appellant raises various claims of error, one of which has merit. For the reasons that follow, we will strike the finding of premeditation and deliberation on count 1, and remand the matter for resentencing.
FACTS
On March 15, 2004, Trajinder S. and Jake K. were walking from Trajinder’s house to the Visalia Mall when they passed a group of four males who had come running up from a side street. One asked for the time, which Trajinder read to them from his cell phone. The person then demanded the cell phone. When Trajinder did not give it to him, the person pulled out an airsoft BB gun that appeared, in the darkness, to be a real firearm. He asked Trajinder if he wanted to “get blasted” and pointed the gun at him. He then said, “[D]o you think we are playing?” Someone else struck Trajinder in the eye with a black pipe that felt like it was plastic, leaving a cut or bump near his temple. As Trajinder and Jake fled, someone threw a 40-ounce beer bottle at Trajinder.
Trajinder believed the assailants possibly were all Hispanic. All had buzz-cut hair. Trajinder believed the one with the gun was wearing a black baseball cap, while another was wearing a solid red shirt. Trajinder told police that the person who struck him was wearing a blue jersey. During the incident, the tallest of the group did nothing and just stood in the back. At trial, Trajinder tentatively identified Ramirez as the one wearing the red shirt. He also believed he recognized Delgadillo as having been one of the group, although he was unable to identify anyone when shown a photographic lineup that included Delgadillo’s picture shortly after the incident. Jake was unable to identify anyone at trial. He told the police that the speech of the person who spoke sounded slurred, and that the person sounded drunk. He also recalled seeing what he thought was a Bacardi bottle.
As Trajinder and Jake were fleeing, Victor S., Isaac M., and brothers Mark and Joseph P. were skateboarding at the loading docks behind the 99 Cent Store/Rite Aid nearby. They saw two males run toward two other males. They expected a fight, but instead the four just talked amongst themselves for several minutes.
As the skateboarders started to leave, the four males approached. One went up to Mark, who was walking behind his friends, tugged at his shirt, and demanded his wallet. This person, who was wearing a black hat, black pants, and a red shirt, was standing right next to Mark, pointing a knife toward Mark’s stomach. Mark said he did not have a wallet to give him and tried to retreat, but was hemmed against a wall by the three other males, who were closing in. One had what looked like a long pipe, while another had a beer bottle.
As the group closed in on Mark, Victor, who had been in front of the group of skateboarders, told them to get away from his friend, and struck the one in the red shirt in the head with his skateboard. At this point, the other assailants converged and Victor started wildly swinging his skateboard, and then, after losing the skateboard, fighting with two of them. One was the person with the knife. Joseph saw one of the assailants hitting Victor with something that looked like a pipe, but could have been the barrel of a BB gun. He saw the third individual punching Victor, while the fourth was standing away, watching. According to Mark, once the fight started, it was a three-on-one altercation at first, with one of the assailants less involved than the other three. Mark was not sure which one stayed out of it. Ultimately, however, Victor ended up fighting all four, all of whom were throwing “sucker punches.”
At first, Victor and the individual with the knife were both on their feet. As they moved toward a fence, however, Victor’s opponent went to the ground. Victor remained standing, and held him on the ground with his foot and started kicking him. Victor was fighting the others, as well. About two minutes after the one with the knife fell, one of the other three (according to Joseph, the one who had been standing off to the side) pulled a handgun and told Victor to get off his brother or he would “blast” him. Victor immediately started to retreat and responded along the lines of, “get him off me then,” as his opponent had gotten up and was holding onto Victor’s shirt and swinging at his face. Once the gun was pulled, only the person with the knife was still fighting Victor. They continued to fight for a while, and this person struck Victor with a closed fist. Mark did not see a knife at this point. Victor struggled to get the person’s hands off his shirt. The shirt tore, and Victor broke away. Mark then saw the knife in the other man’s hand. The person with the knife then came at Mark, asking if he wanted some, but Mark and Victor fled.
Mark did not actually see Victor get stabbed. As he had watched the entire fight except for one point, however, that was the only time the stabbing could have occurred. The person who was holding the knife at that one point, and the only one close enough to Victor to stab him, was the one who had demanded Mark’s wallet. Mark never saw any one of the other three run toward Victor with a large knife and stab him.
Victor was hobbling or limping and was holding his abdomen, between his stomach and his chest. When Mark asked if he was all right, Victor lifted up his shirt and said he needed help. He was bleeding profusely from the stomach. He collapsed onto a little bench inside Round Table Pizza.
Once in the emergency room, Victor was discovered to have suffered a stab wound to the right groin that, at least initially, appeared to be fairly superficial and did not seem to be of much significance. It was treated with Betadine, but never sutured. He also suffered a stab wound to the upper left quadrant of the abdomen, and underwent surgery. This was a puncture wound, as opposed to a slash. The parties stipulated that Victor suffered the personal infliction of great bodily injury, which caused him to become comatose due to brain injury, and that this injury was caused by the stabbing of March 15, 2004.
Isaac described one of the assailants as being taller than the others. All were bald. Joseph described the person who threatened to “blast” Victor as being taller than the others and wearing a white shirt. Mark described all four assailants as Hispanic and wearing baggy clothes. All wore their hair cut close to the scalp, except that one was bald. The person with the knife was a little bit shorter than the rest, who were all around the same height. In giving a description to police, Mark said that one of the group, who had no weapon but was only involved in fisticuffs with Victor, had a shaved head and was wearing a light gray, short-sleeved T-shirt and blue jeans. This person was not engaged at all in any type of fight after the person in the red shirt got up. Mark told police that the third person, who threatened to “blast” Victor, was wearing black shorts and a white T-shirt. Mark never got a really good look at the fourth person, whom he believed was armed with some type of club.
Portions of Mark’s description to police appear to be inconsistent with his trial testimony. Given the way the description was elicited on cross-examination, however, it is unclear whether there is true inconsistency or simply confusion, either on the part of Mark or defense counsel, or in the manner in which Mark’s testimony comes across in a written transcript.
Based on Joseph P.’s report that he had heard someone yell to get off his brother, and based on the described ages of the assailants, Visalia Police Detective Feller went to a local continuation high school to determine who was not in class the day after the incident, especially any brothers who attended school there together. As a result, Feller obtained appellant’s name and learned he lived approximately one-half to three-quarters of a mile from the crime scene. Feller also learned that appellant and Ramirez were brothers, and that Ramirez resided at the same location.
Feller spoke to appellant on the morning of March 17. Appellant had a cut or bruising about one eye, as well as scabs and bruises on his hands and elbows. Although initially saying he had been injured during a flag football game, appellant eventually stated that he knew this was about the fight with the skateboarders behind Rite Aid. Appellant said he “did assault and battery,” and admitted being involved in a confrontation with Victor S. Appellant also stated that, just prior to encountering Victor and his companions, he had approached two males and demanded a cell phone and a wallet from one of them. When the victim was reluctant to turn over the items, appellant struck one or both of them in the head with the barrel of a sawed-off BB rifle in an attempt to take the wallet and cell phone.
Each defendant, none of whom testified at trial, made a statement to police. The statements were redacted to obviate confrontation problems (see, e.g., Bruton v. United States (1968) 391 U.S. 123 (Bruton); People v. Aranda (1965) 63 Cal.2d 518 (Aranda), partially abrogated by constitutional amendment as stated in People v. Fletcher (1996) 13 Cal.4th 451, 465), and jurors were instructed that each one’s statement could not be used against the other defendants.
Appellant said that, after he was unable to catch the first two victims when they fled, he confronted the four skateboarders. He demanded a wallet, but was then confronted by Victor, who intervened and said to leave his friends alone. Appellant related that he struck Victor in the face with his fist, whereupon Victor struck him back, appellant struck Victor in the head with the sawed-off BB rifle, and then Victor struck him again with a skateboard. At some point, appellant was knocked to the ground, at which time he remembered he had a knife in his front pocket. It was a fold-back-type knife that would lock in place, but the locking mechanism did not work. Appellant removed it from his pocket and attempted to stab Victor. Appellant said he believed he had stabbed Victor because he saw blood on the knife, but he also said that the knife folded back on his thumb and cut it. Feller observed a small cut on appellant’s thumb that appeared to be recent and was consistent with a blade coming over and cutting the thumb.
Appellant related that he had buried the knife in the backyard of his residence. Feller and a probation officer conducted a search there and found the knife. They also found a hunting-style knife between the mattress and box springs in Ramirez’s bedroom. Also found were a jersey-style shirt with the number 14 on the back and words “Brown Pride” across the top of the shoulders; two or three red T-shirts; a CD case with V4Town, TXC4, and XIV written on it; a laundry hamper containing red sweatpants, red flip-flops, and white and gray clothing; a number of items of red clothing, but no blue clothing other than blue jeans; a CD case with Norte on the cover and a star in the R; a pair of white Converse shoes with a red and white star on the side; a red beanie cap with Visalia embossed on it; a red bandanna; a San Francisco 49ers banner; and a photograph of Ramirez in which he was wearing a red T-shirt. In addition, tattooed on appellant were four dots on his hand; four dots in a straight line on his chest; an X and a 4 on his chest; and the letters ESR on his leg, which appellant said stood for East Side Reedley. Appellant told Feller that, at the time of the assaults, he had been wearing a red T-shirt, black Ben Davies pants, and some white and red Chuck’s, i.e., Converse Chuck Taylor-style shoes.
Visalia Police Investigator Grimes interviewed Delgadillo on the afternoon of March 17. Initially, Delgadillo said he was not at the location of the altercation, knew nothing about a stabbing, and had been home all that evening with his father and stepmother. He admitted, however, that he had been a Norteno gang member for approximately one year.
When Grimes informed Delgadillo that there was a videotape from a nearby credit union that potentially identified him as having been at the scene that night, Delgadillo briefly lost his composure. He then said that, on the day of the altercation, he went to the home of appellant and Ramirez. He stayed there for a while and drank some beer, then left some time after dark and was walking around in the general area. He said he could remember using his fists and somebody swinging a skateboard, but that, because of the amount of alcohol he had consumed, he was “kind of messed up” and “it was blurry.”
Grimes observed a superficial cut on the back of Delgadillo’s head. Delgadillo related that he had done it himself while shaving his head the day after the incident.
Grimes spoke to Tienda on the evening of March 17. Tienda, who was wearing a red belt, told Grimes that on March 15, he had been home with his mother most of the day, helping her clean the house for a family reunion. When she said there was nothing more with which he could help her, he retrieved a hunting knife that he generally carries and took it with him to the home of appellant and Ramirez. There, he did some drinking, consuming, he assumed, two 40-ounce bottles of beer. He subsequently left to meet a young lady who worked at Rite Aid.
With respect to the actual incident, Tienda said he overheard a disagreement, saw someone swinging a skateboard, and used his knife, which he had been carrying in his back pocket. He started swinging the knife in a back-and-forth motion, then, somewhere in the middle of the altercation, stabbed the individual (Victor) in the upper left side. Tienda said he was trying to scare Victor, but accidentally cut him. Tienda said he felt his hand hit Victor a couple of times, and he saw blood on the knife. After, Victor and Mark took off running, and Tienda also left. At first, he said he threw the knife toward the Visalia Mall. He subsequently admitted he had returned to appellant’s and Ramirez’s residence, where he had left the knife. Tienda admitted that, earlier that day, he was holding a BB rifle for a while, but he denied pointing it at anyone. He denied any involved in, or knowledge of, any attempted robberies.
Grimes interviewed Ramirez on the evening of March 19. Ramirez related that on the evening of March 15, he had left his residence to pick up a snack for his girlfriend, who worked at Rite Aid. There were six 40-ounce bottles of Old English beer at the residence; Ramirez consumed about one and a half, and took about half of one with him. He said he was “buzzing,” but not drunk. He was aware of what was taking place.
Ramirez admitted being involved in an altercation behind Rite Aid. He said someone was swinging a skateboard, and he (Ramirez) was struck in the knee and went down. He then got up and struck the individual in the head with a plastic BB handgun, cracking the gun in half. About this time, the fight ended, the skateboarders went their way, and Ramirez returned to his residence. Ramirez denied any knowledge of how Tienda’s knife ended up under his mattress.
Grimes observed that Ramirez’s knee was swollen and he was limping.
When police investigated the scene, they found several pieces of an airsoft BB pistol behind Rite Aid.
Ramirez denied ever joining a gang, but admitted having associated with Norteno gang members for a couple of years.
Officer Mena, a member of the Visalia Police Department’s Special Enforcement Unit and an expert on gangs, was familiar with a gang called Nortenos. This gang, which has different subcliques in different geographical areas, has over 300 members and associates in Visalia, and over 1,000 in Tulare County. At the time of trial, there were pockets of Norteno gang members in every area of Visalia, with the main subclique being North Side Visalia (NSV). In the Visalia area, Nortenos identify with the color red and the number 14, which may be signified by four dots, or by X-4 or 14, often in Roman numerals. The various subcliques usually work in association with each other, and the Surenos are their main rival gang. Surenos identify with the number 13, use X-3, and usually carry or wear blue. Surenos usually are from Southern California.
The principal activity of a lot of Norteno gangs is committing crimes. Mena had investigated crimes including manslaughter, carjacking, attempted murder, murder, and assault with a deadly weapon. The current trend is to use weapons, both for intimidation and assault. As the main premise of the gangs is fear and intimidation, the gang subculture uses people in a group, usually of three or more, and those people usually have weapons to further intimidate or assault the victim. Even a simulated handgun will be intimidating, since the victim often will not be able to tell whether it is real.
According to Mena, respect is one of the main premises of gang culture. He had talked to hundreds of gang members, and “[i]t always comes down to respect, how much respect [a person has] within the gang. How many people respect them. Not only gang members, the community, itself. Are they feared on the street, just by word of mouth?” Reputation is important in order for a gang to be feared. Gang members want to be known to other gang members as someone who will initiate things or back up the cause, but reputation encompasses not only fellow gang members, but also reputation among non-gang members and rival gang members. Gang members want to earn a reputation and enhance their respect through the doing of certain things. The amount of respect earned depends upon the conduct undertaken and against whom the conduct is undertaken. Although respect can be gained by committing acts against an average person, more respect would be earned by committing a crime against a Sureno. Nevertheless, Nortenos do not only target Surenos; the general population can also be their target, as a lot of time they commit crimes of opportunity.
In the gang culture, the more violent the person is, the more other gang members will look up to and follow that person. Thus, the more violent the person, the more respect he gets within that subculture. Having the reputation of being somebody who will use a weapon is like a status symbol, and news of who did what travels by word of mouth. Committing a robbery will increase the notoriety of an individual gang member by its effect on his reputation. If he is a person who is known to act in a violent way, he will gain higher status within the gangs. Gang members want people within the gang and the community at large to know that was crime was committed by a particular group, and the individual members who commit the crime have the specific purpose of wanting to increase their notoriety as being ruthless. The more ruthless someone is, the more respect he has on the street. Gangs also seek to increase their membership since, the larger the gang, the more powerful it appears to be. If someone is thinking about joining a gang, that person will not want to join a gang with a wimpy reputation, but instead will want to join a gang that has a reputation for being tough and violent.
Being “down for the cause” means being for the Norteno gang – being willing to fight for it, be injured for it, and to “have [the] back” of other gang members. In Mena’s experience, if a gang member is fighting one or two individuals and a group of gang members is present, that group will not wait to see who starts winning the fight before helping their comrade, but instead will initiate violence with the opponents. In other words, “[i]f you are going to fight one of them, you are going to fight all of them.” If they have weapons, they usually will use them or at least threaten with them.
Nortenos do not necessarily discuss with one another what type of actions they are going to undertake on a particular evening. Instead, although sometimes they discuss things, a lot is spontaneous, based on the situation they are in. If a group of individuals got together and armed themselves, they would be taking weapons for a purpose – either for protection or for initiating some type of violent act. Knowing that everybody had some type of weapon would make each feel more secure and would be more intimidating, in case of an altercation. Additionally, gang members usually work in groups and only rarely have one-on-one encounters. It is common for gang violence to escalate if there is resistance; if the gang members have weapons and their target shows some type of resistance, they will use the weapons. Similarly, if they are fighting and are outnumbered or their opponents are using bottles, for example, they will use their weapon(s).
Mena was familiar with an incident in which, on November 16, 2002, Juan Guerrero went to a rival gang party. When a fight ensued, weapons such as bottles and sticks were produced. The situation escalated to Guerrero pulling a handgun and shooting three people. When Mena spoke to Guerrero, Guerrero admitted being a Norteno associate. Based on his other contacts with the police department and other officers, and the finding of numerous gang indicia at his residence, however, it was determined he was actually a gang member.
Mena reviewed documentation, such as probation records and police and probation contacts, for each defendant. With respect to appellant, during a November 2001 contact with an officer, appellant admitted being a Norteno gang member. He also had gang-related tattoos, including ESR-14. “ESR” stands for East Side Reedley, a Norteno gang. In January 2002, as he was being booked into juvenile hall, he told a probation officer that he was North Side or Norteno East Side Reedley. Booking admissions are significant because, while people on the street may not tell the truth about their gang affiliation, someone going into a custodial facility will not want to be housed with rival gang members. In February 2002, appellant was contacted by an officer and admitted being North Side for approximately five years. In September 2002, appellant was arrested and stated that he had belonged to East Side Reedley for approximately six years. In November 2002, appellant was arrested for obstruction and, when booked into juvenile hall, claimed Norteno. In his statement about the current incident, appellant said he was wearing a red shirt and belonged to East Side Reedley, showing that he was still “down for the cause,” i.e., backing up his fellow gang members.
In January 2002, there was a gang altercation at a high school in which Delgadillo was in a fight on campus with a southern gang member. During a subsequent contact with the police department’s youth development officer, Delgadillo claimed Varrio Farmas Catorce (VFC), the Farmersville subclique of a Norteno gang. He was also wearing a red shirt at the time. Later in 2002, Delgadillo was suspended for being under the influence marijuana and for wearing a red belt with the VFC insignia. In June 2002, Delgadillo told an officer that he had backed VFC for a year or two. He was wearing the red VFC belt, and had a red lighter. In October 2002, during a dispositional hearing, Delgadillo said he was involved with a criminal street gang. In March 2003, Delgadillo was arrested for another fight at the high school with a southern gang member. In April 2003, Delgadillo got into a fight with someone over a stare, called “mad-dog” in the gangs. Delgadillo called his opponent a derogatory term for southern gang members that would only be used by a Norteno. In October 2003, Delgadillo was involved in another fight with a Sureno. That same month, he was carrying a red rag when booked into juvenile hall. Nortenos frequently carry a red handkerchief or bandanna to signify a Norteno gang.
In January 2002, Ramirez told a probation officer during intake at juvenile hall that he claimed north affiliation. Ramirez was wearing a red belt at the time. In November 2002, a community safety officer working at a high school campus arrested Ramirez, who was wearing a red shirt, which is common attire for northern gang members. In January 2003, Ramirez told a probation officer that he claimed North Side, i.e., Norteno. In March 2003, he said he had been a member of North Side Visalia (NSV), a northern gang, for approximately one year. In April 2003, Ramirez was wearing white tennis shoes with red trim when booked into juvenile hall. On March 14, 2004, Ramirez was wearing a number 14 on a shirt that had Brown Pride printed on it. “Brown Pride” is associated with pride in being Hispanic, but the number 14 is associated with Nortenos.
With respect to the search conducted at Ramirez’s residence in connection with the present incident and clothing and a CD case and cover that were found, red shirts and 14, XIV, X4, and “Norte” signify Norteno affiliation. A number of items had a five-point star on them, which is significant for Nortenos. There was quite a bit of red or black and red clothing, and Converse tennis shoes, which have a star on them. The only blue items of clothing were jeans, which are common and do not mean the wearer is not Norteno. In addition, Nortenos often associate with San Francisco 49ers.
In January 2002, Tienda told a probation officer that he claimed Norteno. In August 2003, he was wearing a red belt when booked into juvenile hall. The next day, when the probation officer contacted Tienda’s mother, the mother expressed a concern about gang association and requested gang awareness counseling for Tienda. In September 2003, Tienda was wearing a red shirt draped over his shoulder when contacted by an officer, and claimed North Visa (Visalia), another reference to Norteno. In January 2004, Tienda told a probation officer during a dispositional hearing that his gang affiliation was Norteno/NSV (North Side Visalia), and that he had been affiliated with Norteno gangs for approximately six years. On March 14, 2004, a red belt belonging to Tienda was removed during a probation search, as Tienda was on probation with gang terms. On March 18, 2004, when being booked into juvenile hall, Tienda admitted a northern gang affiliation.
In Mena’s opinion, if an individual was a member of a group of four, all of whom were armed with a couple of knives, a pipe (actually, a BB gun with the stock removed), and a BB gun, and if one demanded someone’s cell phone and that person did not comply, pointing a firearm at that person’s face would demonstrate being “down for the cause.” This would be part of the gang itself, to put fear and intimidation into the intended victim, and to try and help whatever the gang was attempting to do. The same would be true of striking the victim with a pipe, as with resistance comes violence.
Gang members frequently will trade weapons or pass one weapon along to another member. Sometimes this is an effort to avoid detection. They may also pass weapons back and forth between incidents, so that if one person stuck a gun in someone’s face and then the group went to rob someone else, another person may have broken the same gun over someone else’s head. If someone used a weapon to stab someone and another person hid it, this again would demonstrate being “down for the cause,” as it still shows working as a group together for a common reason.
Mark P.’s description of the defendants hemming him in against a wall shows they were working as a group to instill fear and intimidation. If someone came to the aid of the individual who was hemmed in and struck one of the assailants, that person would suffer retaliation either by being beaten up or having a weapon pulled on him. Again, the gang members work as a group. If something happens to one individual, the others go and assist him. As for one of the victims wearing a blue hat, gang members will notice the colors people are wearing. Surenos wear blue, and Mena had investigated crimes in which a non-gang member was attacked because he was wearing a certain color attire. He noted, however, that at the time of events, Trajinder was wearing a red shirt with a black and white collar.
There was evidence that either Mark or Joseph may have been wearing a blue and white Angels’ hat at the time of the attack.
Based on all of the information he gathered and the facts of the current case, Mena formed the opinion that each of the defendants was a Norteno gang member on March 14, 2004. It was his further opinion that Nortenos were a street gang comprised of three or more members with the primary or principal activity being criminal activity. When posed hypothetical questions based on the evidence in this case, Mena further opined that the crimes charged were committed for the benefit of, at the direction of, or in association with the Norteno criminal street gang. Specifically with respect to the conduct being done in association with Norteno street gangs, gang members usually work together. When they come together and discuss things or go out as a group with weapons, they are working together as a group. What happened was a “classical sense” of overwhelming by sheer numbers, and fear and intimidation from both the number of people and the weapons that were brandished or used. Based on the facts of the hypothetical, it was Mena’s opinion that the crimes were committed to promote, further, or assist in criminal conduct by Norteno gang members. Mena conceded, however, that it was not unique to have two or more persons involved in a robbery, even if it was not gang-related, or for a person wanting to commit a robbery to carry a weapon.
Although it would not be the norm for a Norteno to wear a blue jersey, if one of the individuals in the hypothetical were wearing such attire, it would not affect Mena’s opinion.
When Nortenos commit crimes, they do not want Surenos getting credit for what they have done, and they generally want to make sure they are identified as those responsible. Based on Mena’s review of the materials concerning this case, he was not aware of any gang signs being flashed or of anything being said relating to gangs. This did not lead him to believe it was not a gang crime, however, as he had investigated gang crimes in which the perpetrators did nothing to identify themselves.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
Appellant contends the evidence is insufficient to support a finding of premeditation and deliberation on count 1, and that appellant personally inflicted great bodily injury, pursuant to section 12022.7, subdivision (a), on counts 1, 2, and 5. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). “Where the circumstances support the trier of fact’s finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendant’s innocence. [Citations.]” (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
Appellant also contends the evidence was insufficient to establish that the crimes were gang-related, as required by section 186.22, subdivision (b). We will address this claim in conjunctions with appellant’s other challenges to the gang enhancements, post.
A. Attempted Premeditated Murder
“‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill.…’” (People v. Young (2005) 34 Cal.4th 1149, 1182.) In this regard, “‘[d]eliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) “The process of premeditation and deliberation does not require any extended prior of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly .…’ [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
“We do not distinguish between attempted murder and completed first degree murder for purposes of determining whether there is sufficient evidence of premeditation and deliberation. [Citations.]” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462-1463, fn. 8.) Accordingly, we view the evidence presented at trial in accordance with the principles set out above, and ask whether any rational trier of fact could have found the necessary reflection and weighing of considerations. (People v. Caro (1988) 46 Cal.3d 1035, 1050-1051, disapproved on other grounds in People v. Bonillas (1989) 48 Cal.3d 757, 797-798, as stated in People v. Whitt (1990) 51 Cal.3d 620, 657, fn. 29; see People v. Johnson, supra, 26 Cal.3d at p. 576.)
The seminal case on the issue of premeditation is People v. Anderson (1968) 70 Cal.2d 15 (Anderson). There, our state Supreme Court reviewed various authorities and concluded: “The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing – what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with [evidence of planning] or [manner of killing], would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from [evidence] of [planning] or [motive]. [¶] Analysis of the cases [shows] that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of [planning] or evidence of [motive] in conjunction with [evidence of] either [planning] or [manner of killing].” (Id. at pp. 26-27; see People v. Young, supra, 34 Cal.4th at p. 1183.)
“Unreflective reliance on Anderson for a definition of premeditation is inappropriate.” (People v. Thomas (1992) 2 Cal.4th 489, 517.) “The Anderson factors provide a ‘synthesis of prior case law,’ but they ‘are not a definitive statement of the prerequisites for proving premeditation and deliberation in every case.’ [Citations.]” (People v. Mayfield, supra, 14 Cal.4th at p. 768.) “The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations.” (People v. Thomas, supra, at p. 517.) “The categories of evidence identified in Anderson, moreover, do not represent an exhaustive list of evidence that could sustain a finding of premeditation and deliberation, and the reviewing court need not accord them any particular weight. [Citations.]” (People v. Young, supra, 34 Cal.4th at p. 1183.)
Using the Anderson analysis as a guide in our examination of the evidence in the present case (see People v. Thomas, supra, 2 Cal.4th at p. 517), we conclude that no reasonable trier of fact could have concluded “that the [attempted] killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse” (People v. Perez (1992) 2 Cal.4th 1117, 1125), even recognizing that “the requisite reflection need not span a specific or extended period of time.” (People v. Stitely (2005) 35 Cal.4th 514, 543.)
Here, the evidence showed that appellant premeditated a robbery, and armed himself to that end. It may well be that, under such circumstances, the commission of a homicidal act is reasonably foreseeable or a natural and probable consequence. We are not prepared to say, however, whenever someone arms him- or herself with the intent to commit a robbery, that person necessarily makes a cold, calculated decision to kill and undertakes the ensuing action with awareness of the consequences and a state of mind that has contemplated and accepted those consequences. Although planning need not relate only to the act of killing (People v. Pensinger (1991) 52 Cal.3d 1210, 1238, fn. 4), something more than a preexisting decision to commit a felony while armed must be required, or advance arming would always constitute premeditation in and of itself.
We recognize that advance arming, especially in conjunction with a preexisting intent to commit a felony, is a factor to be considered in determining whether premeditation and deliberation were present. In each case we have found in which the defendant’s possession of a weapon constituted evidence of premeditation, however, neither it nor the intent to commit a felony constituted the sole evidence of a calculated decision to kill. Moreover, either the decision to actually use the weapon to kill was not made in the midst of a physical altercation, or there was a purpose for the killing beyond merely fending off resistance by the victim. (See, e.g., People v. Manriquez (2005) 37 Cal.4th 547, 577-578 [sufficient evidence of premeditation where, in first homicide, defendant & victim had verbal altercation, several minutes after which defendant approached victim, pulled firearm, cocked weapon, & fired shots to victim’s head, neck, & chest; in second, defendant was forcibly removed from bar on repeated occasions, threatened to return with firearm, did so, & fired shots to victim’s chest at close range; in third, defendant left hotel room armed with concealed firearm, confronted victim, & fired multiple times into victim’s chest]; People v. Young, supra, 34 Cal.4th at pp. 1183-1184 [defendant broke into house with loaded gun in hand, permitting jury to infer he considered possibility of murder in advance & intended to kill; jury could infer motive & premeditated manner of killing from evidence defendant’s several killings showed distinct pattern, such that killing was premeditated even though victims were selected somewhat at random]; People v. Horning (2004) 34 Cal.4th 891, 902-903 [sufficient evidence of premeditation & deliberation where defendant brought murder weapon with him & bound victim at scene, thus showing planning activity, while manner of killing – single bullet from close range into brain of bound & blindfolded victim – showed calculated design to ensure death rather than unconsidered explosion of violence]; People v. Marks (2003) 31 Cal.4th 197, 230 [sufficient evidence of premeditation & deliberation where defendant brought gun with him, supporting inference he planned violent encounter with victim, and ordered another person away, supporting inference he sought to remove witness from scene before he killed; there was evidence supporting inference of robbery motive; & manner of killing was close-range shot without provocation or evidence of struggle]; People v. Koontz, supra, 27 Cal.4th at pp. 1081-1082 [although argument between defendant & victim preceded killing, evidence supported verdict of premeditated & deliberate murder where defendant armed himself with two concealed & loaded handguns, argued with victim in apartment they shared, pursued victim & persisted in argument when victim sought refuge in different apartment; said he would settle it, then entered office where victim was located, locked door, pulled handgun, shot victim in abdomen when victim refused defendant’s demand for car keys, & then took active steps to prevent bystander from summoning vital medical care]; People v. Hughes (2002) 27 Cal.4th 287, 371 [defendant brought his knife to victim’s apartment; jury could infer defendant planned to commit robbery &/or sexual assault when he entered & to use knife to facilitate commission of offenses, then was motivated to kill victim to eliminate her as witness; manner of killing such that jury could infer that, when victim did not die from stab wounds inflicted over period of time, defendant deliberately, & with premeditation, strangled her to death]; People v. Bolin (1998) 18 Cal.4th 297, 332-333 [sufficient evidence of premeditation where defendant argued with one victim, then retrieved revolver & shot him at close range; defendant then confronted two witnesses, said he had nothing against them, & shot them both; defendant then returned to first victim & fired several shots into his motionless body; none of victims were armed or had engaged in provocative conduct]; People v. Millwee (1998) 18 Cal.4th 96, 134-135 [defendant arrived at house unarmed, but had time while then retrieving gun to consider whether & how to use lethal force to remove property from house; evidence that defendant was familiar with both available guns, selected particular weapon which was the only operable gun, checked to see if it was loaded, & prepared it for firing all suggested he at least briefly planned subsequent fatal confrontation]; People v. Mayfield, supra, 14 Cal.4th at pp. 767-768 [although defendant & victim, a law enforcement officer, struggled prior to killing, evidence was sufficient to support finding of premeditation & deliberation where defendant said, after killing, that he had to do it & that, when victim came after him, all defendant could think about was getting victim’s gun & shooting him so he could not arrest defendant; jury could have concluded that, although first shot may have been fired accidentally during struggle for weapon, second shot was fired after defendant obtained undisputed possession of weapon; that fatal shot was fired at victim’s face consistent with preexisting intent to kill]; People v. Perez, supra, 2 Cal.4th at pp. 1126-1127 [when defendant surprised victim in her home, he beat her with fists, then stabbed her with knife obtained from her kitchen; when knife broke, he went in search of another knife; victim knew defendant & evidence supported inference he determined it was necessary to kill her to prevent her from identifying him]; People v. Wharton (1991) 53 Cal.3d 522, 547 [sufficient evidence of premeditation where, after defendant & victim quarreled, either defendant went into garage, obtained murder weapon, then returned & struck victim with it as she slept, or defendant obtained murder weapon & placed it nearby ahead of time]; People v. Adcox (1988) 47 Cal.3d 207, 240 [sufficient evidence of premeditation where defendant planned to rob victim & throw him in river, brought loaded gun to victim’s position on river bank, snuck up on unarmed victim as victim was on his knees, baiting fishhook, &, shortly after arriving at location, fired single fatal shot to back of victim’s head from distance of 6-10 feet]; People v. Morris (1988) 46 Cal.3d 1, 22-23, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5 & 545, fn. 6 [when one plans to engage in illicit activity at isolated location during early morning hours & brings deadly weapon which is subsequently employed, reasonable to infer that person considered possibility of homicide from outset, such that there exists substantial evidence of planned killing; evidence was sufficient to support finding of premeditation when, in addition, defendant shot victim twice from close range, once in head and & in abdomen]; People v. Miranda (1987) 44 Cal.3d 57, 87, overruled on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4 [bringing loaded gun into store & shortly thereafter using it to kill unarmed victim suggested defendant considered possibility of murder in advance; warning to give him the money or he would shoot implied defendant contemplated the killing; victim’s refusal to sell beer to defendant, & defendant’s unsuccessfully requesting to buy beer several more times, showed defendant acted with conscious motive & time to reflect on plan to shoot victims; lack of provocation by victims suggested attack was result of deliberate plan rather than rash explosion of violence]; People v. Alcala (1984) 36 Cal.3d 604, 626, overruled on other grounds in People v. Falsetta (1999) 21 Cal.4th 903, 911 [while use of deadly weapon is not always evidence of plan to kill, substantial evidence of planned killing existed where defendant planned felony against far weaker victim, took victim by force or fear to isolated location, & brought along deadly weapon which he subsequently employed, making it reasonable to infer he considered possibility of homicide from outset]; People v. Ramos (2004) 121 Cal.App.4th 1194, 1208 [sufficient evidence of premeditation where defendant, a gang member, & numerous gang companions armed selves before attending party & parked around corner so as not to be identified when they left if anything happened; upon learning companion involved in fight, defendant ran to front yard, produced handgun, & attempted to fire at rival gang member]; People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225 [defendant & victim belonged to rival gangs involved in previous altercation; defendant was armed with loaded gun; although defendant may not have planned to kill victim before seeing him on day of incident, defendant recognized victim’s truck from prior altercation, then threw his gang sign & yelled his gang name before opening fire on victim’s truck; such conduct showed defendant thought before acting; victim did not provoke defendant to shoot him]; People v. Garcia (2000) 78 Cal.App.4th 1422, 1428 [sufficient evidence of premeditation where defendant owed victim money & victim spoke to defendant about payment; victim was unarmed & there was no argument, but defendant pulled out loaded handgun & shot victim through heart; killing was unprovoked, particular, & exacting]; People v. Williams (1995) 40 Cal.App.4th 446, 455-456 [planning shown by fact defendant brought loaded gun with him & thereafter used it to kill, brought duct tape used to bind & gag victims, & parked car on side street to avoid detection; motive was either revenge or desire to eliminate witness; planned method of killing shown by binding victims & then killing each with single bullet to head].)
In the present case, the evidence showed appellant was prepared to display the knife to intimidate his intended robbery victims. We can speculate that he may have considered using the knife for more than mere display, but speculation is neither evidence nor a reasonable inference drawn therefrom. (See People v. Morris, supra, 46 Cal.3d at p. 21.) The evidence shows that the initial part of the physical altercation with Victor did not involve the use of a knife.
Respondent points to appellant’s statement that, while on the ground, he remembered he had a knife in his pocket, then he decided to pull it out and stab Victor. However, “[t]o say that the defendant ‘can premeditate … the moment he conceives the purpose’ precludes the meaning of careful thought and the weighing of considerations embodied in the … meaning of ‘deliberation’ and ‘premeditation.’ [Citations.]” (People v. Cornett (1948) 33 Cal.2d 33, 40-41.) To accept respondent’s argument would mean that virtually any use of a weapon not in self-defense would demonstrate premeditation, either because the defendant would already have it ready for use, leading to the conclusion he or she considered killing beforehand; or because he or she would deliberately make it available for use, leading to the conclusion the defendant premeditated and deliberated while obtaining the weapon. Moreover, while the wound inflicted here is evidence of intent to kill, it is not of such a nature as to suggest it was inflicted pursuant to a preconceived design to take life. (See People v. Arcega (1982) 32 Cal.3d 504, 519.) Significant also, and minimized by the arguments both at trial and on appeal in support of a finding of premeditation and deliberation, is the fact the stabbing occurred during the “heat of battle.”
Premeditated attempted murder, like premeditated murder, presumes a specific intent to kill, yet recognizes there is a distinction between forming an intent to kill, reflecting on it in a calculated manner, and acting on that intent. Thus, one may have the intent to kill required for express malice second degree murder, but not have the calculated, cold-blooded state of mind required for premeditated, first degree murder. “[T]he legislative classification of murder into two degrees would be meaningless if ‘deliberation’ and ‘premeditation’ were construed as requiring no more reflection than may be involved in the mere formation of a specific intent to kill. [Citations.]” (Anderson, supra, 70 Cal.2d at p. 26.)
Here, the evidence established a planned attempt to rob, but an attempt to kill that took place in the midst of, and in response to, a physical fight – in short, not as the result of preexisting thought and reflection, but rather as the result of an unconsidered or rash impulse. (See People v. Stitely, supra, 35 Cal.4th at p. 543.) Accordingly, the finding that the attempted murder in count 1 was committed willfully, deliberately, and with premeditation, cannot stand. As retrial on the allegation is barred (People v. Seel (2004) 34 Cal.4th 535, 541), we will modify the judgment on count 1 by striking the finding of premeditation and remand the matter for resentencing.
B. Personal Infliction of Great Bodily Injury
Section 12022.7, subdivision (a) mandates imposition of a consecutive three-year enhancement upon “[a]ny person who personally inflicts great bodily injury … in the commission of a felony or attempted felony .…” Subdivision (b) of the statute mandates imposition of a consecutive five-year enhancement upon “[a]ny person who personally inflicts great bodily injury … which causes the victim to become comatose due to brain injury .…” Both enhancements were alleged, with respect to counts 1, 2, 3, and 5, as to appellant and Tienda.
At trial, the evidence overwhelmingly showed a group assault on Victor. Dr. Gerken, a general and thoracic surgeon who was working at Kaweah Delta Hospital on March 15, 2004, and who arrived at the hospital when the emergency room doctor was already starting to open Victor’s chest, observed two stab wounds. The wound she described as “the problem” was a stab wound to the left upper quadrant of the abdomen. The other was a stab wound to the right groin that “seemed fairly superficial” and did not seem to be “of much significance, right then at least.” Dr. Gerken testified that, at the time, she was very focused on the abdominal wound, and did not recall exactly where the less serious one was located, other than it was well above the knee and below the inguinal ligament, and it seemed superficial. She did not recall whether it was a puncture or a slash, nor did she recall treating it at all. Victor was taken to the operating room to address the abdominal wound, and Dr. Gerken was sure that, later on, the wound to the groin was painted with Betadine. She did not recall ever closing it formally, i.e., with sutures or staples. Following Dr. Gerken’s testimony, the parties entered into the following stipulation: “Victim Victor [S.] suffered the personal infliction of great bodily injury, which caused him to become comatose due to brain injury. This injury was caused by the stabbing of March 15 of 2004.”
In his statement to police, appellant admitted that, after he was knocked to the ground, he attempted to stab Victor. He believed he succeeded, as he saw blood on the knife, but the locking mechanism on the weapon did not work, and the knife folded back on his own hand and cut him. Detective Feller observed a small cut on appellant’s thumb that was consistent with appellant’s statement. In his statement to police, Tienda admitted stabbing Victor in the upper left side. Tienda said he was trying to scare Victor, but accidentally cut him. Tienda said he felt his hand hit Victor a couple of times, and he saw blood on the knife.
With respect to the section 12022.7 allegations, jurors were instructed, pursuant to CALJIC No. 17.20, that they had to determine whether appellant and Tienda personally inflicted great bodily injury upon Victor, and were told that great bodily injury “means a significant or substantial physical injury. Minor trivial or moderate injuries do not constitute great bodily injury.” They were also instructed that the People bore the burden of proving the truth of the allegations beyond a reasonable doubt. In addition, the trial court gave the so-called group beating portion of the instruction, telling jurors: “When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim if one, the application of unlawful physical force upon the victim is of such a nature that by itself, it could have caused great bodily injury suffered by the victim; [¶] Or two, at the time the person – the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons as part of the same incident, had applied were applying, or would be applying unlawful physical force upon the victim, and the defendant then knew or reasonably should have known that the cumulative effect of all unlawful physical force would result in great bodily injury to the victim.”
The prosecutor argued that Victor “was rendered comatose during a gang fighting, which consisted of at least two stabbings.” He pointed out that Tienda admitted stabbing Victor in the chest, and contended that appellant inflicted the stab wound to the groin. He also told the jury: “[A]ll four counsel and myself have agreed, and it is an undisputed fact that as a result of this stabbing, Victor [S.] is in a coma. The stipulation agrees that this is a brain injury that the injury was caused by a stabbing of March 15, 2004. Both defendants, Tienda and [appellant] admit to stabbing Victor.”
Jurors subsequently found, with respect to counts 1, 2, and 5, that Tienda personally inflicted great bodily injury and great bodily injury causing the victim to become comatose due to brain injury (§ 12022.7, subds. (a), (b)). As to appellant, however, they found true the great bodily injury allegations under section 12022.7, subdivision (a), but not true the allegation of great bodily injury causing the victim to become comatose due to brain injury under subdivision (b) of the statute.
The jury found the allegations not true as to both defendants with respect to count 3, which charged the attempted robbery of Mark P. There was no evidence presented at trial that Mark P. was injured; the prosecutor’s theory apparently was that the great bodily injury was inflicted on Victor S., who came to Mark’s assistance during the commission of the attempted robbery.
Appellant now contends the evidence was insufficient to support the findings that he personally inflicted great bodily injury. He points to the fact that the jury found Tienda inflicted the injury causing brain damage and coma, and says there was no evidence Victor S. sustained any other injury that was more than minor.
Section 12022.7 requires the personal infliction of great bodily injury. Thus, the section authorizes imposition of an additional penalty “on those principals who perform the act that directly inflicts the injury,” and not on “one who merely aids, abets, or directs another to inflict the physical injury .…” (People v. Cole (1982) 31 Cal.3d 568, 571.) Nevertheless, “nothing in the terms ‘personally’ or ‘inflicts,’ when used in conjunction with ‘great bodily injury’ …, necessarily implies that the defendant must act alone in causing the victim’s injuries. Nor is this terminology inconsistent with a group melee in which it cannot be determined which assailant, weapon, or blow had the prohibited effect. By its own terms, the statute calls for the defendant to administer a blow or other force to the victim, for the defendant to do so directly rather than through an intermediary, and for the victim to suffer great bodily injury as a result.” (People v. Modiri (2006) 39 Cal.4th 481, 493 (Modiri).)
CALJIC No. 17.20, which was given to jurors here, conveys these statutory principles. (Modiri, supra, 39 Cal.4th at p. 493.) For the group beating provisions contained therein to apply, however, not only must jurors decide that a defendant participated in a group attack, but also that it is not possible to determine which assailant inflicted a particular injury. (Id. at pp. 493-494; People v. Corona (1989) 213 Cal.App.3d 589, 594; compare People v. Banuelos (2003) 106 Cal.App.4th 1332, 1338 [prosecution bears burden of showing it cannot be determined which assailant inflicted particular injury; burden met where, based on nature of attack & doctor’s testimony it was impossible to tell which attack or instrument caused which injury, jury reasonably could have concluded it was impossible to trace particular injuries to particular blow or assailant] with People v. Magana (1993) 17 Cal.App.4th 1371, 1381 [principles not applicable where each assailant shot different type of firearm, police identified different types of bullets & cartridges retrieved from crime scene, & prosecution could have presented expert testimony as basis for opinion which firearm discharged which bullet].)
In the present case, the group beating principles laid out in Modiri and the cases cited therein were not applicable with respect to the brain injury finding, since the jury’s verdicts unequivocally establish jurors were able to determine Tienda alone inflicted that injury. The stipulation entered into by the parties, however, did not preclude a finding that Victor suffered great bodily injury as a result of harm inflicted on him apart from the stab wound to his abdomen.
As used in section 12022.7, “‘great bodily injury’ means a significant or substantial physical injury.” (Id., subd. (f).) “A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.” (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836.) “[A] determination of great bodily injury is essentially a question of fact, not of law. ‘“Whether the harm resulting to the victim … constitutes great bodily injury is a question of fact for the jury. [Citation.] If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.”’ [Citations.]” (People v. Escobar (1992) 3 Cal.4th 740, 750.)
Appellant stabbed Victor in the groin, a potentially vital area. Although the wound seemed fairly superficial and not of much significance, at least initially, to the surgeon whose treatment was focused on Victor’s immediately-life-threatening wound, it was deemed to merit at least some medical treatment. Although it reasonably may be inferred that the wound did not bleed heavily, at least for any appreciable period of time, it may also be inferred, from testimony that Victor was limping or hobbling as he fled, that the wound caused pain and impaired his movement. Under the circumstances, we cannot say, as a matter of law, that this stab wound did not constitute significant or substantial physical injury. (See People v. Bustos (1994) 23 Cal.App.4th 1747, 1755; contrast People v. Martinez (1985) 171 Cal.App.3d 727, 735-736 [wound inflicted when defendant “‘picked or cut [victim] in his back a little bit’” through jacket, sweater & shirt, & variously described as “‘a little stab,’” “‘ a minor laceration-type injury,’” & “‘almost like a pinprick’” & which did not require that victim be taken to hospital, insufficient to support finding of great bodily injury].) Accordingly, we uphold imposition of the section 12022.7, subdivision (a) enhancements.
There was also evidence appellant struck Victor over the head with a sawed-off BB rifle, and in the face with his fist with enough force that abrasions on appellant’s hands were still visible two days later. Additionally, Victor’s assailants fought him three-on-one, and threw “sucker punches.” The circumstances indicate sufficient force being applied against Victor such that we would expect Victor to have exhibited bruises, contusions, or other visible injuries. If that were the case, group beating principles would appear to permit a jury to find either that the force personally used by appellant was serious enough that it may, by itself, have caused great bodily injury, or that the physical force appellant and his cohorts applied to Victor combined to cause great bodily harm. (Modiri, supra, 39 Cal.4th at p. 496; see People v. Sanchez (1982) 131 Cal.App.3d 718, 733-734.) Inexplicably, however, the prosecution presented no evidence concerning Victor’s injuries beyond the testimony of the thoracic surgeon, whose sole focus understandably appears to have been the abdominal wound. Accordingly, while we find it difficult to believe the two stab wounds were the only injuries suffered by Victor, we cannot speculate concerning what the evidence might have shown. (See People v. Morris, supra, 46 Cal.3d at p. 21.)
II
ATTEMPTED VOLUNTARY MANSLAUGHTER INSTRUCTIONS
Reasoning that, although self-defense normally would be inapplicable, an argument could be made that, due to intoxication, one or more defendants may not have understood a robbery was taking place and may have believed he was entitled to self-defense once Victor started swinging a skateboard, the trial court instructed on self-defense and on attempted voluntary manslaughter, based on so-called imperfect self-defense, as a lesser included offense of attempted premeditated murder on count 1. Appellant now contends the trial court erred by failing also to instruct on attempted voluntary manslaughter based on sudden quarrel or heat of passion. Specifically, he faults the court for not giving the portion of CALJIC No. 8.41 (attempted voluntary manslaughter) that would have instructed jurors there was no malice aforethought if the attempted killing occurred upon a sudden quarrel or heat of passion, and for omitting CALJIC Nos. 8.42 (sudden quarrel or heat of passion and provocation explained) and 8.50 (murder and manslaughter distinguished).
We express no opinion concerning the applicability of these instructions to appellant. (See People v. Seaton (2001) 26 Cal.4th 598, 664; People v. Box (2000) 23 Cal.4th 1153, 1212-1213.)
“The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. [Citations.] That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. [Citations.] To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial – that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. [Citations.]” (People v. Blair (2005) 36 Cal.4th 686, 744-745; see also People v. Breverman (1998) 19 Cal.4th 142, 154-155; People v. Barton (1995) 12 Cal.4th 186, 194-195.)
Attempted voluntary manslaughter is a lesser included offense of attempted murder. (See People v. Montes (2003) 112 Cal.App.4th 1543, 1545; People v. Corning (1983) 146 Cal.App.3d 83, 89; cf. People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Breverman, supra, 19 Cal.4th at p. 154 & fn. 5.) “Statutory” attempted voluntary manslaughter arises “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) “Nonstatutory” attempted voluntary manslaughter arises where there is a genuine but unreasonable belief in the need to defend against imminent peril to life or great bodily injury. (See People v. Saille (1991) 54 Cal.3d 1103, 1107, fn. 1; People v. Flannel (1979) 25 Cal.3d 668, 674-680.) In either case, a defendant is deemed to have acted without malice, even if he or she intended to kill. (See People v. Blakeley (2000) 23 Cal.4th 82, 87-88.)
Here, the trial court instructed on one species of attempted voluntary manslaughter, but not the other. “[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (People v. Breverman, supra, 19 Cal.4th at p. 162; see People v. Holloway (2004) 33 Cal.4th 96, 141 [neither federal nor state Constitution infringed when theory of voluntary manslaughter unsupported by substantial evidence is omitted from law presented to jury]; People v. Dennis (1998) 17 Cal.4th 468, 507 [due process requires that lesser included offense instruction be given only when warranted by the evidence].) We independently review a trial court’s failure to instruct on a lesser included offense (People v. Waidla (2000) 22 Cal.4th 690, 733); in determining whether substantial evidence to support such an instruction existed, we do not evaluate the credibility of witnesses, as that is a task for the jury (People v. Breverman, supra, 19 Cal.4th at p. 162).
“An intentional, unlawful [attempted] homicide is ‘upon a sudden quarrel or heat of passion’ (§ 192(a)), and is thus [attempted] voluntary manslaughter (ibid.), if the [would-be] killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘“ordinary [person] of average disposition … to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.”’ [Citations.] ‘“[N]o specific type of provocation [is] required .…”’ [Citations.] Moreover, the passion aroused need not be anger or rage, but can be any ‘“‘[v]iolent, intense, high-wrought or enthusiastic emotion’”’ [citations] other than revenge [citation].” (People v. Breverman, supra, 19 Cal.4th at p. 163.)
“The heat of passion requirement for [attempted] manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, [attempt to] kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively.… ‘[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,’ because ‘no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.) Although no specific type of provocation is required (People v. Berry (1976) 18 Cal.3d 509, 515), it must be caused by the victim, or be conduct reasonably believed by the defendant to have been engaged in by the victim (People v. Lee (1999) 20 Cal.4th 47, 59). Moreover, adequate provocation and heat of passion both must be affirmatively demonstrated. (Id. at p. 60; People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704.)
We conclude that neither was adequately demonstrated. Appellant says that, in light of Victor’s conduct in swinging a skateboard and in kicking appellant while appellant was on the ground, the jury could have found appellant’s and/or Tienda’s reason was so disturbed by anger or outrage that either or both acted impulsively. In order to demonstrate the “heat of passion” prong, however, it is not enough merely to point to evidence of anger or another emotion. Instead, “‘[t]here must … be evidence from which it can be inferred that the defendant’s reason was in fact obscured by passion at the time of the act. [Citation.]’” (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1015, italics added; accord, People v. Breverman, supra, 19 Cal.4th at p. 163.) Stated another way, the defendant must be so provoked by acts of the victim that he or she “strikes out in the heat of passion, an emotion that obliterates reason that would prevail in the mind of a reasonable person.” (People v. Johnston (2003) 113 Cal.App.4th 1299, 1311, italics added.)
Here, although it might reasonably be surmised that appellant and his cohorts felt anger or fear, nothing in the evidence or in appellant’s statement (or, for that matter, in Tienda’s) suggests their reason was actually obscured. (See People v. Johnson (1993) 6 Cal.4th 1, 43, disapproved on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 879; compare People v. Breverman, supra, 19 Cal.4th at pp. 163-164 [defendant & other persons indicated number & behavior of intruders caused immediate fear and panic].) We may speculate as to the reason for appellant’s conduct, but “‘[s]peculation is not evidence, less still substantial evidence. [Citation.]’ [Citation.]” (People v. Dennis, supra, 17 Cal.4th at p. 508.)
The fact the stabbing was not unprovoked for purposes of determining whether it was the result of premeditation and deliberation, does not mean there was evidence of adequate provocation or passion so as to warrant manslaughter instructions. (See People v. Rogers, supra, 39 Cal.4th at pp. 877-878; People v. Wickersham (1982) 32 Cal.3d 307, 329, disapproved on other grounds in People v. Barton, supra, 12 Cal.4th at p. 201; People v. Valentine (1946) 28 Cal.2d 121, 132; cf. CALJIC No. 8.73 (evidence of provocation may be considered in determining degree of murder); Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 522 (provocation: effect on degree of murder).)
Moreover, the provocation here was inadequate as a matter of law. In this regard, “determination of the sufficiency of provocation is made by an objective standard; defendant’s subjective response is immaterial.” (People v. Rich (1988) 45 Cal.3d 1036, 1112.) The California Supreme Court has concluded, on more than one occasion “and without extended discussion, that ‘predictable conduct by a resisting victim’ of a felony cannot ‘constitute the kind of provocation sufficient to reduce a murder charge to voluntary manslaughter. [Citation omitted.]’” (People v. Balderas (1985) 41 Cal.3d 144, 196-197 (Balderas); People v. Jackson (1980) 28 Cal.3d 264, 306 (plur. opn. of Richardson, J.), disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)
Appellant says Victor’s conduct in striking appellant with a skateboard after appellant used his fist, and then kicking appellant as appellant was on the ground, went beyond what might reasonably be characterized as predictable resistance by a victim. (Compare, e.g., People v. Rich, supra, 45 Cal.3d at p. 1112 [unspecified resistance of rape victims]; People v. Jackson, supra, 28 Cal.3d at p. 306 [victim awakened during burglary & began to scream]; People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1247 [victim screamed, pointed, & called for wife to summon police].) He recognizes that in Balderas, supra, 41 Cal.3d 144, more active resistance by the victim was involved; there, the victim struggled with the defendant and was knocked down by him, then, when the defendant’s back was turned, struck him with some object, prompting the defendant to shoot him in the leg and leave him to bleed to death. (Id. at p. 165.) Appellant argues the case is not on point, however, because the court merely held there was no heat of passion defense to felony murder.
We disagree. A reading of Balderas clearly shows the high court was concerned with heat of passion both with respect to malice murder and with respect to felony murder: The defendant argued that he was entitled to an instruction defining voluntary manslaughter as a killing upon a sudden quarrel or heat of passion. The court noted that the jury was instructed on all degrees and theories of murder, including first degree murder based both on premeditation and on the felony-murder doctrine. The court discussed the provocation or heat of passion necessary to reduce a murder based on malice to manslaughter, and concluded that predictable conduct by a resisting victim does not constitute sufficient provocation. It then explained why neither heat of passion nor provocation could ever reduce a murder based on the felony-murder doctrine to voluntary manslaughter. (Balderas, supra, 41 Cal.3d at pp. 196-197.) It concluded: “Were we to recognize on any theory a ‘heat of passion manslaughter’ defense based on resistance of a felony victim, an accidental killing in the course of a felony would be murder, while an intentional homicide in ‘panic or rage’ at the victim’s resistance would constitute a lesser offense. Such cannot be the law.” (Id. at p. 197.)
Here, appellant and his companions set upon one member of a group and attempted to rob him. Appellant displayed a weapon; the intended target, Mark P., was unarmed, as were the rest of his friends. Under the circumstances, it was predictable behavior for another of the group to come to Mark’s assistance and, in the face of a weapon and possibly being struck first, to use the only thing available to him: a skateboard. Given that Victor was outnumbered and more than one weapon was available to his assailants, it was also predictable for Victor to continue to fight even after appellant was on the ground. Under the circumstances, the provocation was not “such that an average, sober person would be so inflamed that he or she would lose reason and judgment.” (People v. Lee, supra, 20 Cal.4th at p. 60.) Moreover, the provocation was not truly caused by the victim; both the quarrel and any consequent heat of passion were the result of appellant’s own voluntary conduct, as he was “‘culpably responsible’ for the altercation.” (People v. Johnston, supra, 113 Cal.App.4th at p. 1313; see also People v. Montezuma (1931) 117 Cal.App. 125, 128-130; People v. Hoover (1930) 107 Cal.App. 635, 636-637, 639.)
III
JURY MISCONDUCT
As previously stated, in order to obviate Aranda-Bruton concerns and in lieu of severance, each defendant’s statement to police was redacted to eliminate references to his codefendants, and jurors were instructed that they could consider each statement only against the declarant. Those statements are set out in our statement of the facts, ante.
Jurors were told: “Evidence has been received by [sic] a statement made by a defendant after his arrest. Any post-arrest statement made by any defendant may not be considered by you against the other defendants. Do not consider the evidence of this statement against the other defendants.”
In count 2 of the information, which, as finally amended, charged each defendant with conspiracy to commit robbery and felonious assault, five overt acts were alleged to have been committed by the defendants: (1) Tienda possessed a knife; (2) appellant possessed a knife; (3) appellant possessed a simulated firearm; (4) the defendants left appellant’s and Ramirez’s residence; and (5) the defendants walked to the area of Round Table Pizza and the Tucoemas Credit Union. In its verdict on count 2 with respect to appellant, the jury found appellant guilty of conspiring to commit robbery/felony assault. The jury also returned a verdict entitled “finding on objects of conspiracy count 2,” which stated that the jury, having found appellant guilty of conspiracy, found that he “conspired to commit one or more of the following overt acts after the designation of which there has been placed and [sic] ‘X’.” An “X” was placed by each overt act alleged in the information, except that overt act No. 3, as found by the jury, consisted of Ramirez, not appellant, possessing a simulated firearm.
Appellant now contends the findings on the overt acts demonstrate jurors violated the trial court’s instruction not to consider the statement of one defendant against the others, as the only evidence supporting several of the overt acts was contained in the statements whose use against appellant was prohibited. Appellant says this misconduct by the jurors demonstrated actual bias and violated his constitutional rights to confrontation, cross-examination, and an impartial jury, requiring reversal of the entire judgment.
To succeed on a claim of jury misconduct, appellant “must show misconduct on the part of a juror; if he does, prejudice is presumed; the state must then rebut the presumption or lose the verdict. [Citation.].” (People v. Marshall (1990) 50 Cal.3d 907, 949.) We have been unable to find a case, and have been cited to none, that states how great a showing of misconduct must be made in order to give rise to a presumption of prejudice, although it can be argued the substantial likelihood test applicable to the ultimate question of whether reversal is required, also applies to the threshold question whether misconduct has been shown. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1178 [judgment must be reversed whenever court finds substantial likelihood vote of one or more jurors was influenced by exposure to prejudicial matter not part of trial record on which case was submitted to jury].) The California Supreme Court has cautioned, “Although prejudice is presumed once misconduct has been established, the initial burden is on defendant to prove the misconduct. [Citation.] We will not presume greater misconduct than the evidence shows.” (In re Carpenter (1995) 9 Cal.4th 634, 657.) It follows that we will not presume misconduct occurred when it has not been shown, or when the purported showing is nothing more than speculation. (See People v. Ladd (1982) 129 Cal.App.3d 257, 264; People v. DeCoe (1938) 25 Cal.App.2d 522, 525.)
Here, appellant asserts, based solely on the jury’s findings concerning the overt acts alleged in conjunction with count 2, that jurors violated their oaths and the trial court’s admonitions, and did not render verdicts based solely on the evidence properly received against appellant at trial. Considering the record as a whole, we find it highly likely jurors simply misunderstood how to handle the oddly-worded verdict form for the overt acts. Although jurors were told how to fill out the verdict forms for the charged offenses, lesser included offenses, and enhancement allegations, nothing was said about the overt act findings except that, if they found a defendant guilty of conspiracy, “then you pull out the attached special allegations. These other sheets. If you find the defendant not guilty of count number two, you don’t fill out any other forms as to count number two.” As to count 2 itself, jurors were told that each defendant was individually entitled to a determination whether he was a member of the alleged conspiracy. They were also instructed, inter alia, that, in order to find a defendant guilty of conspiracy, there must be, in addition to proof of an unlawful agreement and specific intent, proof of the commission of at least one of the acts alleged in the information to be overt acts. Significantly, jurors were told: “It is not necessary to the guilt of any particular defendant that he or she personally committed an overt act if he or she was one of the conspirators when the alleged overt act was committed”; that an overt act “means any step taken or act committed by one or more of the conspirators which goes beyond mere planning or agreement to commit a crime, and which step or act is done in furtherance of the accomplishment of the object of the conspiracy”; that each member of a conspiracy is liable for each act of every other member of the conspiracy if the act is in furtherance of the object of the conspiracy; and that “[t]he act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators.” Jurors were further instructed: “You must also unanimously agree and find beyond a reasonable doubt that an overt act was committed by one of the conspirators. You are not required to unanimously agree as to who committed the overt act or which overt act was committed, as long as each of you find beyond a reasonable doubt that one of the conspirators committed one of the acts alleged in the information to be overt acts.”
These instructions were correct statements of the law (see, e.g., People v. Russo (2001) 25 Cal.4th 1124, 1128, 1131, 1135-1136; People v. Lopez (1993) 20 Cal.App.4th 897, 904), and appellant does not contend otherwise. Considering the instructions together with the wording of the verdict on the overt acts – most particularly, the reference to appellant conspiring to commit one or more of those acts – and the prosecutor’s argument, in which he discussed all of the alleged overt acts with respect to all defendants, however, it simply was not clear whether jurors were to specify the overt acts they found existed in terms of the conspiracy as a whole and for which appellant was liable as a member of that conspiracy, or the acts they found appellant himself committed. As the express language of the verdict form does not require the latter, the jurors’ findings on the overt acts are insufficient, of themselves, to show jurors considered the other defendants’ statements against appellant, so as to permit a conclusion that appellant has carried his burden of showing misconduct occurred. Appellant has pointed to nothing beyond those findings.
“Evidence in support of conspiracy to commit a robbery. These are the overt acts that we’ve discussed. And we know that Mr. Tienda had a knife. We know that Mr. Rodriguez possessed a knife. We know that Defendant Ramirez possessed a simulated firearm .… [¶] We know that they all left from the same location. And we all know they went to the same location. And during the entire time, they remained armed with these items.”
Jurors are presumed capable of making fine distinctions concerning the purposes for which evidence may be considered. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) Absent proof of specific juror misconduct, we may assume they heeded the trial court’s instruction not to consider any defendant’s statement against the other defendants. (People v. Avila (2006) 38 Cal.4th 491, 575, cf. People v. Ervin (2000) 22 Cal.4th 48, 77-78.) As appellant’s claim of jury misconduct is speculative, it follows that he has not shown a violation of his constitutional rights to confrontation, cross-examination, or an impartial jury. (See People v. Perez (1973) 9 Cal.3d 651, 660-661.)
We note that overt act No. 2 – appellant possessed a knife – was established by appellant’s own admission, and was sufficient, in and of itself, to uphold appellant’s conviction on count 2. Thus, appellant cannot have been prejudiced by any juror confusion or error. (See People v. Avila, supra, 38 Cal.4th at p. 601.) Moreover, there is nothing in the record to suggest that, even assuming jurors erroneously considered other defendants’ statements against appellant with respect to the overt acts, they did so generally or otherwise violated their oaths or the trial court’s admonitions. Significantly, each defendant’s statement was thoroughly redacted to exclude any reference to the other defendants, so there was no danger jurors would obtain powerfully incriminating information about a defendant that did not come from that defendant’s own mouth or was not subjected to cross-examination. (See Richardson v. Marsh (1987) 481 U.S. 200, 208-209, 211; People v. Fletcher, supra, 13 Cal.4th at pp. 455-456; cf. Crawford v. Washington (2004) 541 U.S. 36.) Under the circumstances, were we to find misconduct, we would not find that it infected more than merely the jury’s findings on some of the overt acts. (See In re Carpenter, supra, 9 Cal.4th at p. 657; compare People v. Daniels (1991) 52 Cal.3d 815, 863-864, 865 [sitting juror discussed case with outsider & expressed opinion on issue of guilt prior to deliberations; trial court had discretion to remove juror, under § 1089, for serious & willful misconduct, as shown by repeated violation of court’s instructions; misconduct indicated juror was unable to perform duty, which included obligation to follow court’s instructions, & court reasonably could conclude that juror who violated instructions could not be counted on to follow instructions in future].) The presumption of prejudice would stand rebutted, so that appellant’s conviction on count 2 would stand, because at least one overt act was established by appellant’s own admission and jurors did not need to find any of the other acts in order to convict appellant; thus, any improperly considered information was not inherently likely to have exercised an improper influence on any of the jurors. (See In re Malone (1996) 12 Cal.4th 935, 964.)
IV
GANG EVIDENCE ISSUES
As previously described, a criminal street gang enhancement allegation, pursuant to section 186.22, subdivision (b), was found true with respect to appellant on each count. He now raises several claims of error related to both the gang evidence and the enhancements.
A. Sufficiency of the Evidence
Appellant first contends the evidence was insufficient to sustain the jury’s true findings on the enhancements. The principles applicable to an insufficiency-of-evidence claim are set out, ante. They apply to claims involving enhancements as well as substantive offenses (People v. Vy (2004) 122 Cal.App.4th 1209, 1224), and specifically to prosecutions under section 186.22, subdivision (b) (In re Jose P. (2003) 106 Cal.App.4th 458, 465-466).
To establish the gang enhancement under section 186.22, subdivision (b), “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, [and that it was committed] with the specific intent to promote, further, or assist in any criminal conduct by gang members.’ [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.) There may be instances when it is improper for an expert to express his or her opinion on the ultimate issue of the subjective knowledge or intent of the defendant on trial, or to render an opinion amounting to no more than expression of his or her general belief as to how the case should be decided. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 651-652, 658; cf. People v. Gonzalez (2006) 38 Cal.4th 932, 946.) Generally speaking, however, where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs – including the motivation for an individual member’s actions – is permissible, and a jury may rely on such testimony to render a finding on the gang allegation. (People v. Ward (2005) 36 Cal.4th 186, 210; People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048 (Hernandez); People v. Gardeley, supra, 14 Cal.4th at p. 617; People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931; People v. Valdez (1997) 58 Cal.App.4th 494, 506.)
The prosecution must also 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; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal 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. [Citation.]” (People v. Gardeley, supra, 14 Cal.4th at p. 617, italics omitted.) As appellant implicitly concedes the evidence was sufficient to establish these requirements, we do not discuss them further.
As shown by Officer Mena’s testimony in the present case, all four defendants were, by their own admission, members of, or affiliated with, the Norteno gang or one of its subcliques, and had been for some time. Mena explained how gang members usually work in groups, support each other, and are “down for the cause.” He also explained how they individually gain respect and stature within the gang, and help bolster the gang’s fearsome reputation in the community, by committing robberies, using weapons, and being violent. Such testimony was permissible. (See People v. Ferraez, supra, 112 Cal.App.4th at pp. 930-931.) Assuming it was not sufficient, standing alone, to sustain the enhancement finding (id. at p. 931), here it was coupled with testimony from victims of, and eyewitnesses to, the charged offenses, showing that all four defendants acted together to commit assaultive crimes; used their superior numbers in a manner calculated to intimidate their victims; and acted to support each other, both in committing the crimes themselves and in responding to resistance or actual attack.
Considering the expert testimony in conjunction with the remaining evidence (see People v. Gamez (1991) 235 Cal.App.3d 957, 978, disapproved on other grounds in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10), jurors reasonably could have concluded that what took place here was more than merely four people, who happened to be gang members, committing crimes as a group “on a frolic and detour unrelated to the gang.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Although there was no evidence of overt indications of gang affiliation or gang-related motives, such as the flashing of gang signs or everyone wearing red shirts, jurors reasonably could have determined that news of the defendants’ crimes would spread “on the street” by word of mouth, and that they would enhance their individual reputations within their gang, and their gang’s reputation vis-à-vis rival gangs, even if the information did not become known to the community at large. Accordingly, jurors reasonably could have concluded both that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang, and that appellant (as well as the other defendants) had the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b); see People v. Morales, supra, 112 Cal.App.4th at pp. 1197-1198; In re Ramon T. (1997) 57 Cal.App.4th 201, 207-208.) This case thus is clearly distinguishable from situations in which the defendant’s criminal history and gang affiliation constituted the only evidence a crime was gang-related (see People v. Martinez (2004) 116 Cal.App.4th 753, 761-762), or the only crime consisted of passive conduct by a lone individual and the expert’s testimony did not merely give meaning to the defendant’s actions, but instead amounted to personal belief as to the defendant’s subjective intent (see In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1199).
We recognize that there was evidence one defendant was wearing a red shirt, and one member of the second group of victims was wearing a blue and white hat. We have analyzed the sufficiency of the evidence without relying on this information, since we question its significance in light of evidence Trajinder S. was wearing a red shirt when attacked, and one of his assailants may have been wearing a blue shirt.
B. Ineffective Assistance of Counsel
Appellant contends he was deprived of his constitutionally guaranteed right to the effective assistance of counsel by his trial attorney’s omissions in regard to the gang enhancement allegations and gang expert’s testimony. The applicable principles are settled: The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, “a defendant must show that counsel (1) performed at a level below an objective standard of reasonableness under prevailing professional norms; and thereby (2) subjected the defense to prejudice, i.e., in the absence of counsel’s failings a more favorable outcome was reasonably probable. [Citation.]” (People v. Hamilton (1988) 45 Cal.3d 351, 377.)
Appellant first says the trial court would have abused its discretion by denying a motion to bifurcate trial of the gang enhancement allegations, had such a motion been made. Because the lack of bifurcation allowed jurors to hear evidence concerning how a gang member’s status within the gang is related to how violent he is, and regarding the “extensive” contacts that all four defendants had with police, he claims, defense counsel should have sough bifurcation and his failure to do so prejudiced appellant with respect to counts 1 and 2. We disagree.
Section 1044 gives a trial court discretion to bifurcate proceedings. (People v. Calderon (1994) 9 Cal.4th 69, 74-75.) With respect to whether bifurcation of gang enhancement allegations generally should be ordered, the California Supreme Court has distinguished between a prior conviction allegation, which relates to the defendant’s status and may have no connection to the charged offense, and a criminal street gang allegation, which “is attached to the charged offense and is, by definition, inextricably intertwined with that offense.” (Hernandez, supra, 33 Cal.4th at p. 1048.) Because of this difference, less need for bifurcation of a gang enhancement usually exists. (Ibid.)
Section 1044 provides: “It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.”
As the Supreme Court explained, however, this does not mean bifurcation should never be ordered. (Hernandez, supra, 33 Cal.4th at p. 1049.) “The predicate offenses offered to establish a ‘pattern of criminal gang activity’ [citation] need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt. [¶] In cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation – including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like – can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]” (Id. at pp. 1049-1050.)
The court went on to say that “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself – for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged – a court may still deny bifurcation.” (Hernandez, supra, 33 Cal.4th at p. 1050.) The court analogized the issue to the severance of charged offenses, in which judicial economy is a factor to be considered. (Ibid.) “When the offenses are joined for trial the defendant’s guilt of all the offenses is at issue and the problem of confusing the jury with collateral matters does not arise. The other-crimes evidence does not relate to [an] offense for which the defendant may have escaped punishment. That the evidence would otherwise be inadmissible may be considered as a factor suggesting possible prejudice, but countervailing considerations that are not present when evidence of uncharged offenses is offered must be weighed in ruling on a severance motion. The burden is on the defendant therefore to persuade the court that these countervailing considerations are outweighed by a substantial danger of undue prejudice.’ [Citation.]” (Ibid.) The court recognized that “[t]he analogy between bifurcation and severance is not perfect” (ibid.), but concluded that “the trial court’s discretion to deny bifurcation of a charged gang enhancement is … broader than its discretion to admit gang evidence when the gang enhancement is not charged. [Citation.]” (Ibid.)
Applying the foregoing to the present case, we find it highly unlikely the trial court would have granted a bifurcation motion had one been made. Appellant was charged in counts 1 and 2 with attempted premeditated murder and conspiracy, respectively. Attempted premeditated murder requires the prosecution to prove a specific intent to kill and a direct but ineffectual act (People v. Smith (2005) 37 Cal.4th 733, 739), undertaken with a “careful weighing of considerations in forming a course of action” and “thought over in advance” (People v. Koontz, supra, 27 Cal.4th at p. 1080). “A conspiracy is shown by evidence of an agreement between two or more persons with the specific intent to agree to commit a public offense and with the further specific intent to commit such offense, which agreement is followed by an overt act committed by one or more of the parties for the purpose of furthering the object of the agreement. [Citation.]” (People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20.)
“The People are entitled to ‘introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.’ [Citation.] ‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.’ [Citations.] [¶] Expert testimony repeatedly has been offered to show the ‘motivation for a particular crime, generally retaliation or intimidation’ and whether and how a crime was committed to benefit or promote a gang.’ [Citation.]” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) “[T]he motive here was relevant and important, both to the actual crime committed … and to the requisite intent for the enhancement. Case law holds that where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial. [Citations.]” (People v. Martin (1994) 23 Cal.App.4th 76, 81.) Additionally, “[w]hile mere association does not prove a criminal conspiracy [citation], common gang membership may be part of circumstantial evidence supporting the inference of a conspiracy. [Citation.] The circumstances from which a conspiratorial agreement may be inferred include ‘the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties [and] the interests of the alleged conspirators .…’ [Citation.]” (People v. Superior Court (Quinteros), supra, 13 Cal.App.4th at pp. 20-21.)
Here, the gang evidence was relevant to show the defendants’ purpose for being near the mall on the night in question, and for assailing two sets of young men with whom they had had no prior contact. Although we have concluded the evidence was insufficient to establish premeditation and deliberation with respect to count 1, the gang evidence nevertheless was relevant for that purpose. It was also relevant to establish a conspiracy; although Mena testified that gang members do not necessarily discuss in advance what kinds of actions they will undertake on a particular evening and often commit crimes of opportunity, this does not mean his testimony was irrelevant to the conspiracy charge. “The agreement or the unlawful design of conspiracy may be proved by circumstantial evidence without the necessity of showing that the conspirators met and actually agreed to commit the offense which was the object of the conspiracy. [Citation.]” (People v. Superior Court (Quinteros), supra, 13 Cal.App.4th at p. 20.)
Appellant admitted to police that he was involved in attempted robberies, and that he possibly had stabbed Victor. He did not admit harboring an intent to kill, however, or, insofar as his redacted statement showed, anything suggestive of a conspiracy. Accordingly, the gang evidence was not unnecessary as being offered on an undisputed issue. (See People v. Avitia (2005) 127 Cal.App.4th 185, 193.) None of the gang evidence – including concerning appellant’s and the other defendants’ prior contacts with law enforcement – was particularly inflammatory, nor did it suggest appellant previously had been involved in robberies or assaults in which he used a knife or other weapon. Additionally, jurors were instructed, during Mena’s testimony, that evidence of prior police or probation contacts was not to be considered with respect to whether any defendant had a propensity to commit a crime, but was offered only for the purpose of determining whether one or more of the defendants were members of, or associated with, a criminal street gang, and that jurors were not to consider it for any other purpose. We presume they followed this instruction.
Although evidence of a defendant’s gang membership or related activity “creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged” (People v. Carter (2003) 30 Cal.4th 1166, 1194) so that “[s]uch evidence is only admissible when it is logically relevant to some material issue at trial other than character trait evidence” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449), such relevance existed here. In light of the foregoing, it is not reasonably probable that, had defense counsel moved to bifurcate the gang enhancement allegations, the motion would have been granted. Accordingly, appellant has failed to establish prejudice from counsel’s failure to make such a motion, and we need not determine whether counsel’s omission was the result of a reasonable tactical purpose. (See, e.g., People v. Maury (2003) 30 Cal.4th 342, 394 [where trial court would not have abused its discretion by denying severance motion, if made, no reasonable probability existed that such motion would have been granted; hence, defendant failed to establish prejudice from counsel’s omission]; People v. Mattson (1990) 50 Cal.3d 826, 876 [claim of ineffective assistance of counsel based on trial attorney’s failure to make motion or objection must demonstrate both absence of tactical reason for omission & also that motion or objection would have been meritorious]; People v. Babbitt (1988) 45 Cal.3d 660, 708 [where review of record indicates counsel’s failure to object was nonprejudicial, counsel’s reasons need not be explored].) We reach the same conclusion in focusing specifically on Mena’s testimony about the relationship between a gang member’s status and his violence, and that a gang member who stabs someone will be “looked up to.”
Our conclusion in this regard also disposes of appellant’s claim that defense counsel was ineffective for failing to object to what appellant terms highly inflammatory gang affiliation evidence – police and probation contacts, which appellant says strongly suggested he was in a constant state of conflict with the law – that assertedly was cumulative and unnecessary in light of appellant’s postarrest admission of gang membership. As the California Supreme Court has observed, “[a] mere failure to object to evidence or argument seldom establishes counsel’s incompetence. [Citations.]” (People v. Frierson (1991) 53 Cal.3d 730, 747.) Defense counsel may have wanted to suggest to jurors that, despite being a gang member, appellant had not previously been involved in assaultive conduct and was not prone to use weapons. In any event, the record “does not eliminate the possibility that counsel’s decision not to object ‘resulted from an informed tactical choice within the range of reasonable competence.’ [Citation.]” (People v. Jones (1997) 15 Cal.4th 119, 182, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Moreover, as we have noted, jurors were given a limiting instruction with respect to this evidence, and we have already rejected the notion that they conclusively demonstrated an inability or refusal to follow the trial court’s instructions. (See part III, ante.)
Appellant contends, however, that counsel performed deficiently by failing to limit Mena’s testimony pursuant to this court’s opinion in People v. Killebrew, supra, 103 Cal.App.4th 644 (Killebrew). In that case, East Side Crips shot up a Country Boy Crip gathering, killing at least two people. Anticipating retaliation, the Bakersfield police instituted a heightened state of alert. Several hours later, two patrol officers observed three cars apparently traveling together in East Side Crip territory. In each of the first two vehicles, a Chevrolet and a Mazda, the officers saw four young Black males. In the third car, a Chrysler, they saw two young Black males and either one or two passengers in the back seat. Of all the men, the officers recognized only one – Leon Anderson – and they knew him to be a member of the East Side Crips. Because the cars carried young Black males, appeared to be traveling together, and one passenger was an East Side Crip, the officers concluded that everyone in the vehicles was a member of the gang. They further reasoned that because the gang would be expecting retaliation, its members would travel only in large groups that night and would carry weapons for protection. Accordingly, they initiated a stop of the Chevrolet, in which Anderson was riding. As they approached, they saw the rear seat passenger place a handgun under the front seat. Officers arrested the four occupants of the vehicle and recovered the handgun. Meanwhile, the other two vehicles made a U-turn and drove by the location of the stop; other officers were dispatched and found these vehicles at a nearby taco stand. A search of the area revealed a handgun hidden in a shoe box next to a Dumpster. All seven occupants of the vehicles were arrested. Killebrew was not in the Chevrolet or the Mazda, and his presence in the Chrysler was not established with any degree of certainty. He was seen observing the stop of the Chevrolet, however, and was arrested and charged with conspiring to possess the two handguns. At trial, a police officer testified as an expert on gangs to establish not only Killebrew’s membership in a criminal street gang, but also his subjective knowledge and intent to possess the handgun. Killebrew ultimately was convicted of conspiring to possess a handgun. (Killebrew, supra, 103 Cal.App.4th at pp. 647-649.)
On appeal, Killebrew argued, inter alia, that the trial court erred by allowing Officer Darbee, the gang expert, to give an opinion about the intent and knowledge of gang members when in the presence of guns. (Killebrew, supra, 103 Cal.App.4th at pp. 649-650.) In this respect, Darbee testified at length about gangs and gang psychology; he identified the major gangs in the Bakersfield area and testified about the major criminal activities of the East Side Crips; and he opined that the individuals involved in this case were all members of the East Side Crips and that they would have expected the Country Boy Crips to retaliate as a result of the shooting. Killebrew did not claim these opinions were inadmissible, but instead took issue with the trial court’s admission of Darbee’s testimony concerning the subjective knowledge and intent of each occupant in the car. In this respect, Darbee testified that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and constructively possesses it. Darbee went so far as to opine that the occupants of the Chrysler, to which no gun was ever linked, would know of the guns in the other two vehicles and would mutually possess those guns. (Id. at p. 652 & fn. 7.)
This court undertook an extensive review of cases addressing the propriety of expert testimony on gangs (Killebrew, supra, 103 Cal.App.4th at pp. 652-657), and noted that Darbee’s evidence was not the type of “culture and habit testimony” held admissible in the various reported cases. (Id. at p. 654.) We stated:
“Through the use of hypothetical questions, Darbee testified that each of the individuals in the three cars (1) knew there was a gun in the Chevrolet and a gun in the Mazda, and (2) jointly possessed the gun with every other person in all three cars for their mutual protection. In other words, Darbee testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action.
“Darbee’s testimony was the only evidence offered by the People to establish the elements of the crime [conspiracy to possess a handgun]. As such, it is the type of opinion that did nothing more than inform the jury how Darbee believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded. [Citation.]
“Moreover, this topic is not one for which expert testimony is necessary. Testimony that a gang would expect retaliation as a result of a shooting such as occurred [in the case], that gangs would travel in large groups if expecting trouble, that in a confrontation more than one gang member may share a gun in some identified circumstances, and that oftentimes gang members traveling together may know if one of their group is armed, would have been admissible. Beyond that, Darbee simply informed the jury of his belief of the suspects’ knowledge and intent on the night in question, issues properly reserved to the trier of fact. Darbee’s beliefs were irrelevant.… [¶] … [¶] Since the erroneously admitted testimony provided the only evidence to support the conspiracy theory, reversal of the judgment is required.” (Killebrew, supra, 103 Cal.App.4th at pp. 658-659.)
The California Supreme Court has read Killebrew “as merely ‘prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.’ [Citations.]” (People v. Gonzalez, supra, 38 Cal.4th at p. 946.) The court has further stated that “[i]t would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons.” (People v. Gonzalez, supra, at p. 946, fn. 3.)
We find the bulk of Mena’s testimony to be appreciably different from Darbee’s testimony in Killebrew. As appellant points out, there were instances in which the prosecutor questioned Mena specifically about the conduct of one of the defendants by name, or blurred the distinction between hypothetical and nonhypothetical questions. The overall nature and quality of Mena’s testimony, however, combined with the other evidence presented and inferences that reasonably can be drawn therefrom, distinguish this case from those involved in this court’s opinions in Killebrew and In re Frank S., supra, 141 Cal.App.4th 1192. For the most part, Mena’s testimony was appropriate (see People v. Ward, supra, 36 Cal.4th at pp. 209-210; People v. Ferraez, supra, 112 Cal.App.4th at pp. 928, 930-931); exclusion of the arguably inappropriate portions would not have rendered reasonably probable an outcome more favorable to appellant. Accordingly, appellant has failed to demonstrate the requisite prejudice; hence, we need not determine whether counsel’s failure to object constituted a reasonable tactical choice. (See In re Fields (1990) 51 Cal.3d 1063, 1079.)
V
SENTENCING ISSUES
Last, appellant contends the trial court improperly imposed a consecutive 10-year enhancement under section 186.22, subdivision (b)(1)(C) on count 1, as the enhancement does not apply to life terms. (See id., subd. (b)(5).) Respondent concedes the error, and asks instead for imposition of a 15-year minimum parole period. As we are reversing the finding of premeditation on count 1, however, appellant will no longer be subject to a life term upon resentencing (see § 664, subd. (a)), and imposition of the 10-year enhancement will be proper. (§ 186.22, subd. (b)(1)(C); see § 667.5, subd. (c)(8), (12).)
Appellant further contends the sentence for conspiracy (count 2) must be stayed pursuant to section 654. In light of the remand for resentencing, he is free to make this argument to the trial court. For guidance of that court, however, we note that, “since conspiracy is a separate and distinct crime, a defendant may be prosecuted and convicted of the substantive offense and of conspiracy to commit that offense. [Citations.]” (People v. Cooks (1983) 141 Cal.App.3d 224, 317.) Nevertheless, “[b]ecause of the prohibition against multiple punishment in section 654, a defendant may not be sentenced ‘for conspiracy to commit several crimes and for each of those crimes where the conspiracy had no objective apart from those crimes. If, however, a conspiracy had an objective apart from an offense for which the defendant is punished, he may properly be sentenced for the conspiracy as well as for that offense.’ [Citations.] Thus, punishment for both conspiracy and the underlying substantive offense has been held impermissible when the conspiracy contemplated only the act performed in the substantive offense [citations], or when the substantive offenses are the means by which the conspiracy is carried out [citation]. Punishment for both conspiracy and substantive offenses has been upheld when the conspiracy has broader or different objectives from the specific substantive offenses. [Citations.]” (People v. Ramirez (1987) 189 Cal.App.3d 603, 615-616, fn. omitted, disapproved on other grounds in People v. Russo, supra, 25 Cal.4th at p. 1137; accord, In re Cruz (1966) 64 Cal.2d 178, 180-181.) Thus, for example, a defendant may not be punished for both murder and conspiracy to commit that particular murder (People v. Hernandez (2003) 30 Cal.4th 835, 866), but he may be punished for both offenses where the evidence shows a conspiracy to kill not only the particular person who was the victim of the substantive offense, but other persons as well (People v. Vargas (2001) 91 Cal.App.4th 506, 570-571; see also People v. Collins (1966) 242 Cal.App.2d 626, 640 [§ 654 did not preclude sentencing defendant on conspiracy & six theft counts where conspiracy alleged & proved had objectives going beyond the six thefts for which defendant convicted].) Where multiple sentences are prohibited, the trial court must stay execution of sentence on the additional count or counts, not impose concurrent terms. (See People v. Cohen (1970) 12 Cal.App.3d 298, 328-329.)
Section 654, subdivision (a) provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
DISPOSITION
Judgment on count 1 is modified to strike the finding of premeditation and deliberation, and to reflect a conviction for unpremeditated attempted murder. As so modified, the judgment of conviction on all counts is affirmed. Appellant’s sentence is vacated and the matter is remanded to the trial court for resentencing in accordance with the views expressed in this opinion.
WE CONCUR: Gomes, J., Kane, J.