Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C151836
McGuiness, P.J.
Defendant Willie Louis Thompson appeals from a judgment entered after he was found guilty of first degree murder of Dante Wallace and Ronnell Hodge (Pen. Code, § 187, subd. (a) ) (counts one (Wallace) and two (Hodge)), with related firearm use enhancements (§§ 12022.5, subd. (a)(1); 12022.53, subds. (b)-(d)); and possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count three). The jury also found Thompson had committed two murders within the meaning of section 190.2, subdivision (a)(3) (multiple-murder special circumstance). At a bench trial, the court found Thompson had suffered two prior serious felony convictions (§ 667, subd. (a)(1)), and strike convictions under the Three Strikes law (§§ 667, subds. (e)(2)(A), 1170.12, subd. (c)(2)(A)), and one prior felony conviction for which he served a separate prior prison term (§ 667.5, subd. (b)). Thompson was sentenced to consecutive terms of life without the possibility of parole on one count of first-degree murder (Wallace), 25 years to life for one count of first degree murder (Hodge), and 25 years to life for possession of a firearm by a felon, plus consecutive terms of 25 years to life and 20 years for related firearm use enhancements, plus 10 years for prior conviction enhancements. The court also imposed but stayed a consecutive one-year term for the prior prison term enhancement alleged pursuant to section 667.5, subdivision (b). Coleman appeals from a judgment entered after he was found guilty of one count of first degree murder as to each victim (counts one and two) with related firearm use enhancements, and possession of a firearm by a felon (count four). Coleman was sentenced to consecutive terms of 25 years to life for first-degree murder (two counts), plus consecutive terms of 25 years to life and one year for related firearm use enhancements, plus a determinate term of three years for possession of a firearm by a felon. Both defendants also appeal from victim restitution orders (one as to each defendant) in the amount of $79,215, payable by them, jointly and severally, to the Victim’s Compensation Board.
All further statutory references are to the Penal Code unless otherwise stated.
Thompson advances several arguments challenging his convictions, sentences, and the award of victim restitution. Coleman advances two arguments challenging his convictions. Defendants join in each other’s arguments to the extent the arguments may inure to their benefit. (Cal. Rules of Court, rule 8.200(a)(5).)
We affirm the judgment against Coleman. We modify the judgment against Thompson by striking (1) the section 667.5, subdivision (b) prior prison sentence enhancement, and (2) the section 1202.45 parole revocation restitution fine of $1,000. Except as so modified, we affirm the judgment against Thompson. We also affirm the victim restitution orders.
FACTUAL AND PROCEDURAL BACKGROUND
In a joint information, Thompson and Coleman were charged with the first degree murders of Dante Wallace (count 1) and Ronnell Hodge (count 2). It was additionally alleged that (1) during the murder of Hodge, both defendants personally used and intentionally discharged a firearm causing great bodily injury and death to Hodge; (2) during the murder of Wallace, Thompson personally used and intentionally discharged a firearm causing great bodily injury and death to Wallace, and Coleman was “a principal” and armed with a firearm. Each defendant was also charged with possession of a firearm by a felon (counts three and four). A multiple-murder special circumstance pursuant to section 190.2, subdivision (a)(3), was alleged against Thompson. The following evidence was presented at a joint jury trial in September and October 2007.
Before trial, Coleman’s motion to dismiss the multiple-murder special circumstance allegation against him was granted.
In the early morning of April 25, 2004, Wallace and Hodge were the victims of a shooting incident on 65th Avenue between 14th Street (International Boulevard) and Eastlawn Street in an area of Oakland referred to as “The Village.” At that time the residential area was known for “a lot of dope traffic, ” and gunfire was heard in the area “a lot, ” at least three or four times a week.
Thompson (known as WL), Coleman (known as Moonie), Wallace (known as DT), Hodge (known as Nell), and Matthew Cobbs, had grown up together and were supposedly friends. By the time of the 2004 shooting, the men were in their late twenties and mid-thirties. Both defendants were still friends with Wallace but Coleman was no longer talking to Hodge. Cobbs considered Hodge to be his best friend. None of the men still lived in The Village but Wallace’s parents lived in an apartment located on Eastlawn Street in The Village. During the six months preceding the shooting incident, Thompson, Coleman, and Cobbs continued to hang out in The Village on a daily basis, but it had been two or three years since Wallace and Hodge had been seen in The Village on a regular basis. Wallace and Hodge returned periodically. Wallace was seen mostly on weekends and Hodge was seen “every now and then.”
Cobbs was the only witness to the shooting incident who testified at the trial. He arrived in The Village at about 1:30 a.m. He had his.357-caliber revolver concealed in his waistband. At the time Cobbs drank liquor on a daily basis. Earlier in the evening he had consumed about two or three 40-ounce beers, but he had a high tolerance for alcohol and his intoxication level was low. Cobbs saw defendants and other people drinking on 65th Avenue. According to Cobbs, Thompson was “not very much” intoxicated, and both defendants were “normal, ” in that apparently they had had a “couple [of] drinks, ” but were not “too drunk” or “too intoxicated.” Thompson liked to drink probably more than Cobbs, and Coleman drank probably less than Cobbs.
Cobbs explained that he carried a gun in The Village for his own protection (he had been shot in 2003) and because it was necessary to be armed when he sold drugs. At the time of the shooting, he also owned a.22-caliber rifle and a small assault weapon. About ten days before the shooting, his girlfriend gave his rifle to Coleman to hold for Cobbs. He also hid guns around The Village so guns would not be found on his person if he was stopped and searched by the police. He had also seen both defendants armed in The Village on numerous occasions, and had seen both stash guns around The Village. He presumed that people who hung out in The Village had guns to protect themselves.
Cobbs asked Coleman for a ride to a liquor store. During the drive in Coleman’s light gray two-door car, Cobbs was in the back seat and Coleman and Thompson were in the front seat. Cobbs was not sure if Coleman or Thompson drove the car. The three men bought the largest bottle of gin they could find to share with the people back at The Village. Cobbs began drinking in the car as they returned to The Village, but he could not recall if defendants had any drinks at that time. During the ride back to The Village, Cobbs again sat in the back seat and either Coleman or Thompson drove the car.
On the trip to and from the liquor store, Coleman and Thompson started talking mostly about Hodge and Wallace. Cobbs could not recall Coleman specifically talking about Wallace. Coleman said Hodge was “not cool, ” and asked Cobbs why he still “mess[ed] around” with Hodge. Cobbs replied Hodge was cool to him, and Coleman, in a serious voice, repeated Hodge “just ain’t cool.” Thompson then asked, “what’s up with DT, ” referring to Wallace. Cobbs replied Wallace was cool too, but both Thompson and Coleman responded “they not cool.” Coleman asked Cobbs why he still dealt with Wallace and Hodge. Coleman also asked Cobbs to call Hodge and ask him to come out that night if he was a “homeboy, ” but Cobbs refused to call Hodge. During the conversation, defendants were not joking, and they seemed angry based on the tone of their voices and how they were speaking.
When the men arrived back at 65th Avenue, Cobbs saw Hodge on the sidewalk. Coleman said, “Ooh.” Wallace was also on the sidewalk, a few feet away from Hodge, kneeling and talking to someone in a car. The driver of Coleman’s car drove past Hodge, made a U-turn, and parked on the same side of the street a few feet behind Hodge. Defendants got out of the car “fast” and headed in separate directions. Coleman went into a nearby parking lot behind his parked car, and Thompson crossed the street and went into some bushes. Cobbs believed defendants were retrieving stashed weapons based on the way they had been talking in the car and their conduct after they left the car.
“Right after” defendants left the car and walked away, Cobbs left the car, and approached Hodge, shaking his hand and hugging Hodge. As he broke off the hug, Cobbs gave his.357-caliber revolver to Hodge. Cobbs attempted to conceal the gun by the way he was standing near Hodge, and how he shook hands and hugged him. Defendants had already “walked off.’ Hodge put the gun in his waistband. Cobbs said, “What’s up? What you doing out here? These niggas tripping.” Hodge replied, “I know.” Cobbs was trying to convey a warning to Hodge that defendants were “tripping off” that Hodge was out there, and Hodge should leave. Cobbs asked Hodge where his car was so they could leave before things escalated. Cobbs told Hodge he should leave, and the two men started walking towards Hodge’s car, which was parked on Eastlawn Street. Cobbs was about two feet behind Hodge, and Wallace was walking about 8 to 10 feet in front of Cobbs and Hodge.
Cobbs saw Thompson walk diagonally from the bushes into the middle of the street in front of him and Hodge; Thompson had his hands in his pockets. Cobbs turned around and saw Coleman a few feet behind him on the sidewalk. Cobbs saw that Coleman had Cobbs’s.22-caliber rifle under his arm. As the men walked down the street, Cobbs tried to stay between Coleman and Hodge and between Coleman and Thompson so that nothing would happen to Hodge. Wallace and Thompson were arguing and cussing at each other, loudly, with Thompson doing most of the cussing. Coleman did not participate in the argument between Thompson and Wallace. However, on two or three occasions, Coleman pulled and lightly shoved Cobbs’s right shoulder backwards, telling Cobbs to get out of the way. Cobbs replied, “No, ” because he did not want anything to happen to Hodge. Cobbs finally got out of the way when the group reached Eastlawn Street. Although the men were walking “real slow, ” none of them was having difficulty walking because of potential alcohol impairment.
Cobbs did not see Thompson leave the street and shove or bump into either Wallace or Hodge. Nor did Cobbs hear either Wallace or Hodge say they did not want any trouble. However, another witness Khadijah Shahid, who lived on 65th Avenue near East 14th Street, testified that just before the gunfire, she heard loud talking from the sidewalk outside her second-floor living room window. She saw Thompson walking with two men on the sidewalk underneath her window. Thompson did not say anything, but he repeatedly bumped his chest into the shoulder of one of the men, then jumped back and put his hands up. In response to the repeated bumping, one of the men repeatedly said, “Man, we don’t want no problems. We don’t want no trouble.” As the men continued walking towards Eastlawn Street, the two men continued to beg to be left alone. Shahid called 911 and told the operator “someone was fixing to get killed, ” and then hung up. Almost immediately thereafter, Shahid heard more than five gunshots that sounded all the same from the direction of Eastlawn. When the 911 operator called back, Shahid said, “it was too late. They were dead.” As she was talking to the 911 operator, Shahid saw two men “run out the side parking lot and jump in a white car.” Shahid could not identify the men.
At some point, Hodge was on a little walkway about 20 feet from the sidewalk. Cobbs stayed on the sidewalk, and Wallace went out into the street within two or three feet of Thompson. Wallace, a large man, weighing 250 to 300 pounds, said something like “Let’s get them up, let’s fight, ” and, “I’m done. Let’s just do this.” Wallace did not raise his fists or have any weapons. Thompson’s immediate reaction was to pull a handgun from his pocket and fire five or six shots at Wallace from two to three feet away. Cobbs saw Wallace’s head “ducking forward” while Wallace was “bending at the waist, ” but Cobbs did not see Wallace actually fall to the street. As Thompson walked around Wallace in a half circle firing his gun, Cobbs believed the gunfire was now coming in his direction and he crouched behind a car. Cobbs then heard more gunshots coming from behind him. Out of his peripheral vision, Cobbs saw Coleman aim his.22-caliber rifle and begin firing in the direction in which Cobbs last saw Hodge in the walkway. Cobbs heard the rifle expend its entire capacity all in one sequence. After the rifle started to discharge, Cobbs heard the gunfire of six rounds from his.357-caliber revolver, which he had earlier given to Hodge. There was a point when both the rifle and the.357 revolver were “going off” at the same time, but the rifle had been shot first. Cobbs thought the first 10 shots were from Thompson’s gun, which sounded like a.9 millimeter pistol. Cobbs thought the.9 millimeter pistol (Thompson’s gun) was fired at the same time as the.22 caliber rifle (Coleman’s gun), right before the.357-caliber revolver (Hodge’s gun). After Thompson stopped shooting at Wallace, Thompson walked to the sidewalk and fired up the walkway in the direction in which Cobbs had last seen Hodge. The.357 caliber revolver was fired before Thompson moved to the sidewalk and started firing in Hodge’s direction. Cobbs heard Thompson fire his gun first, and the last gun he heard was the.357 caliber revolver. Coleman left one or two seconds before Thompson fired his last shot, and then Thompson took off. Wallace was then lying in the street. Hodge left a blood trail going from the walkway around the corner to Eastlawn Street in front of Wallace’s parents’ apartment.
Cobbs estimated Wallace weighed at least 300 pounds at the time of the shooting. Wallace died about ten days after the shooting. His autopsy report indicated his height was 6 feet and one and one-half inches, and he then weighed 250 pounds.
Wallace’s parents testified regarding their knowledge of the incident. Inside their second-floor apartment, they heard the gunfire in the street. Wallace’s father recalled he heard at least 15 to 20 gunshots “right after each other”; which lasted one to two minutes. The gunshots sounded like they came from at least two different guns. The first gunshots “sounded heavier” or “louder, ” than the later gunshots, which “weren’t completely as loud as the first.” He did not recall if he heard more of the louder gunshots later, but he was sure he heard different caliber guns going off at the same time with no significant pauses. He heard gunshots that might have been fired from a.9-millimeter pistol or revolver, and more gunshots that could have been from a.22-caliber rifle, which came after the other louder noises. He was sure the quieter gun was the last gun he heard fired, although the guns were fired “right behind each other.” Wallace’s mother heard “a whole bunch” of “real loud” gunshots, in rapid succession, for fifteen seconds or a minute or two, with no delays or breaks. About ten or fifteen minutes later, while he was still in his second-story apartment, Wallace’s father heard Hodge calling to him from some bushes directly below one of the bedroom windows. Hodge said, “Help me, .... They got me, ” and “call my mother.” While still in the apartment, Wallace’s mother heard Hodge say, “They got me, they got me, Moonie got me, ” and “call my mom.” When Wallace’s father was at Hodge’s side, Hodge said, “I’m dying, ” “They got me, ” and he had been shot. Hodge also said he was sorry “for bringing all this stuff round to your house.” Around the corner from his parents’ apartment, Wallace was found lying on 65th Avenue. He appeared to have a gunshot wound to his head and other gunshot wounds to his upper body. From an area of around 75 feet where Wallace was found, the police recovered eight.22-caliber shell casings, and fifteen.9-millimeter casings.
A police firearms expert testified a gunshot from a.22-caliber rifle sounds like a “pop, ”, and not particularly loud, a gunshot from a.9-millimeter pistol would be loud but sound like a crack breaking the sound barrier, and a gunshot from a.357-caliber revolver would be the “heaviest” of the three gunshots and would sound like a boom instead of a crack sound. Cobbs also testified that of the three guns, the.357-caliber revolver was the “loudest gun.”
Hodge died of his wounds that morning. An autopsy report indicated Hodge sustained four bullet wounds. Hodge died due to a loss of blood from a gunshot wound caused by a.22 caliber bullet found in his abdomen. Wallace survived the shooting, sustaining multiple gunshot wounds to the arms, shoulder, and back, and a graze injury caused by a bullet plowing through the top left side of his head just above the ear. Bullets perforated his right lower lung and hit the right side of his liver. No bullets were recovered from Wallace’s body. Wallace had no wounds from directly in front of him, but if he were bending over, the shooter could have been in front of him. Also, the graze injury on the scalp could have been caused by the firing of a firearm in front of Wallace’s head and just to his left. About ten days after the shooting, while Wallace was in the hospital recovering from his wounds, he died within minutes when a blood clot traveled from his leg to his lung. His cause of death was determined to be “pulmonary thromboembolism, ” and “complicating multiple gunshot wounds of the torso and extremities.” The autopsy pathologist was of the opinion that the gunshot wounds set in motion a series of events resulting in the pulmonary thromboembolism; in other words, “but for those gunshot wounds, the blood clot would not have occurred.”
On April 27, 2004, the police stopped a vehicle in The Village. The front seat passenger discarded a bag as he fled and avoided capture by the police. The police identified the man who fled as someone who hung out in The Village. Inside the bag, the police found a.9-millimeter pistol and a.22-caliber rifle, both with clips. Cobbs identified the rifle as his. The guns matched both the revolver casings and rifle casings found after the shootings and the rifle bullet found inside Hodge. A few weeks after the shooting, Cobbs’s.357 caliber revolver containing six expended cartridges was found on the roof of the apartment building where Wallace’s parents lived on Eastlawn Street. Cobbs denied tossing his.357-caliber revolver on the roof.
Defendants presented no witnesses; they offered into evidence several photographic exhibits depicting evidence found at the crime scene, including the bullet casings, a diagram of the crime scene on which a crime scene evidence technician had marked the location of the bullet casings found in the street, and a diagram of the crime scene on which Cobbs had marked the location of both defendants, both victims, and himself at the time “right before the shots go off.” Defendants’ primary defense was that credible evidence would support findings that defendants’ “trash talk” about the victims was not evidence of a conspiracy or intent to kill the victims. Defendants had armed themselves with guns only after they saw Cobbs hand his.357-caliber revolver to Hodge. Although defendants followed the victims as they walked on 65th Avenue towards Eastlawn Street, where Thompson had a verbal altercation with Wallace, Hodge overreacted to the situation by firing the.357-caliber revolver first. Defendants argued they were therefore entitled to respond in justifiable self-defense.
The jury returned verdicts against both defendants of first degree murder of both victims and possession of a firearm by a felon. The jury also found that (a) during the murder of Wallace, Thompson personally used and intentionally discharged his firearm, which caused great bodily injury and the death of Wallace, and Coleman was armed with a firearm; and (b) during the murder of Hodge, Coleman personally used and intentionally discharged his firearm, which proximately caused great bodily injury and the death of Hodge, and although Thompson personally used and discharged his firearm, the discharge did not proximately cause great bodily injury or the death of Hodge. The jury also found Thompson had committed more than one murder within the meaning of section 190.2, subdivision (a)(3) (multiple-murder special circumstance).
DISCUSSION
I. Sufficiency of Evidence of First-Degree Murder Offenses
Thompson challenges the sufficiency of the evidence supporting his convictions for first degree murder of Wallace and Hodge. He specifically argues the evidence was insufficient to establish he actually premeditated and deliberately murdered either Wallace or Hodge-as the actual killer, an accomplice, or a conspirator. He also argues it is an “unfair stretch” to infer that a premeditated killing of either victim was a natural and probable result of anything he aided and abetted or conspired to commit with Coleman. Accordingly, Thompson argues the murder convictions against him should be reduced to second-degree murder. We disagree.
In evaluating the sufficiency of evidence, as an appellate court, we “must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] [We presume] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “ ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]’ [Citation.]” (People v. Thomas (1992) 2 Cal.4th 489, 514.) “We need not be convinced beyond a reasonable doubt that the murders were premeditated. Our inquiry on appeal ‘in light of the whole record [is] whether any rational trier of fact could have found the essential elements of the crime[s] beyond a reasonable doubt.’ [Citations.]” (People v. Sanchez (1995) 12 Cal.4th 1, 31-32 (Sanchez), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22 (Doolin).)
Concededly, “ ‘[a] verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance. [Citations.] [However, ] “[t]he process of premeditation... does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....’ [Citations.]” ’ [Citation.]” (People v. Halvorsen (2007) 42 Cal.4th 379, 419 (Halvorsen).) “In People v. Anderson (1968) 70 Cal.2d 15, 26-27 [(Anderson]), ..., [our Supreme Court]... developed guidelines to aid reviewing courts in assessing the sufficiency of evidence to sustain findings of premeditation and deliberation. [Citation.] [The Court] described three categories of evidence recurring in those cases: planning, motive, and manner of killing. [Citations.]” (Halvorsen, supra, 42 Cal.4th at pp. 419-420.) “[I]t is not necessary that the Anderson ‘factors be present in some special combination or that they be accorded a particular weight.’ [Citation.]” (Sanchez, supra, 12 Cal.4th at pp. 32-33.) “Nonetheless, we are guided by the factors in our determination whether the murder[s] occurred as a result of ‘preexisting reflection rather than unconsidered or rash impulse.’ [Citation.]” (Ibid,)
Contrary to Thompson’s contentions, the jury could have accepted portions of the testimony of the prosecution’s witnesses and the forensic evidence, and reasonably have drawn the inference that, before the shootings both defendants had exhibited a certain animus toward both victims, thereby establishing “the prior relationship from which the jury reasonably could infer a motive for the killings.” (People v. Cruz (1980) 26 Cal.3d 233, 245 (Cruz).) Defendants’ actions immediately before the killings of securing loaded weapons “can be characterized as ‘planning’ activity.” (Ibid.; see People v. Wharton (1991) 53 Cal.3d 522, 547.) Finally, the number of shots that were apparently fired (police found eight.22-caliber rifle casings and fifteen.9-millimeter pistol casings in the area of the shootings), would permit the jury to find defendants were intent on killing the victims “according to a preconceived design and for a reason.” (Cruz, supra, at p. 245.) Contrary to Thompson’s contention, the jury could have discounted any evidence of his intoxication after reasonably finding “it was not possible to determine the extent of [his] drunkenness at the time of the killings.” (Id, at p. 248.) Thompson’s reliance on the court’s instructions regarding accident or excuse is misplaced. Whether Thompson acted in justifiable self-defense, imperfect self-defense, or accidentally hit Wallace after Hodge shot his gun first, were questions resolved by the jurors, who apparently did not believe Thompson fired his gun in response to Hodge firing his gun first. Viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have been persuaded beyond a reasonable doubt “that the killing[s] [were] the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. [Citation.]” (People v. Perez (1992) 2 Cal.4th 1117, 1125.)
Thompson’s argument ignores the applicable law on aiding and abetting. “A person may aid and abet a criminal offense without having agreed to do so prior to the act. [Citations.] In fact, it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances. [Citations.] Aiding and abetting may be committed ‘on the spur of the moment, ’ that is, as instantaneously as the criminal act itself. [Citation.] Since... any person concerned in the commission of a crime, however slight that concern may be, is liable as a principal in the crime [citations], it follows that an aider and abettor will be responsible for a collateral offense if at any time that he does something that directly or indirectly aids or encourages the primary actor in the commission of a crime, it is reasonably foreseeable that a collateral offense may result.” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.) Thus, “[i]n order to hold the accused as an aider and abettor the test is whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures. In People v. Luna [(1956)] 140 Cal.App.2d 662 [(Luna)], the defendant was held to have aided and abetted his codefendant in making an assault on the prosecuting witness where he entered into an altercation which reasonably could lead to trouble, stood by while his codefendant committed the assault, prepared to enter the fight if necessary, and finally entered the fight. The [appellate] court pointed out that while one who merely stands by watching an assault is not guilty of aiding and abetting, and while the defendant was acquitted of the charge of assault on the person with whom he fought, the evidence sustained his conviction for aiding and abetting his companion’s assault.” (People v. Villa (1957) 156 Cal.App.2d 128, 134-135.)
We similarly find unavailing Coleman’s argument that the verdict against him of first-degree murder of Wallace must be reversed-or reduced to a verdict of second degree murder-because there was no evidence from which the jury could reasonably find he foresaw Thompson’s deliberate and premeditated shooting of Wallace. Concededly, there was no evidence Coleman attempted to or shot at Wallace. Nevertheless, “whether, as a matter of fact, ” defendants were joint participants “was for the jury to decide.” (Luna, supra, 140 Cal.App.2d at p. 664.) Contrary to Coleman’s contention, the jury could have accepted portions of the testimony of the prosecution’s witnesses and the forensic evidence, and drawn the following reasonable inferences: Before the shootings both Thompson and Coleman had exhibited some animus against both Hodge and Wallace. Even assuming Coleman saw Cobbs hand a gun to Hodge, Coleman did not leave the area but prepared for a confrontation by retrieving a loaded firearm. Coleman told Cobbs to stay out of the way, and physically attempted to move Cobbs away, in order to protect Thompson against Wallace if need be. When the opportunity arose, Coleman joined in the altercation by firing his gun at Hodge, who returned gunfire. “In brief, [Coleman] voluntarily entered into an alteration which would probably lead to trouble, stood by prepared to take a hand in the fight and aggressively entered it when he thought the proper time had arrived. The two [defendants] stood together and fought together. There was concert of action and purpose which clearly proved [Coleman] to have been a participant in the entire fight” against both victims. (Id, at p. 665.)
II. Multiple-Murder Special Circumstance Allegation Against Thompson
Thompson argues the jury’s true finding that he committed multiple murders should be set aside because “absent clearer evidence” that he killed or intended to kill both victims, he should not be subjected to the multiple murder special circumstance. We disagree. Whether the evidence was sufficient to subject Thompson to multiple murder special circumstance was a question to be resolved by the jury. Contrary to Thompson’s contentions, the jury could have reasonably found Thompson was the actual killer of Wallace, and Thompson’s firing his gun at Hodge, which occurred after Coleman fired his rifle at Hodge and Hodge returned gunfire, aided and abetted Coleman’s killing of Hodge. Thompson’s argument that Cobbs’s testimony is “dubious at best” is misplaced. “Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]” (People v. Huston (1943) 21 Cal.2d 690, 693, overruled on another ground in People v. Burton (1961) 55 Cal.2d 328, 352.) “Because the circumstances reasonably justify the jury’s findings, we may not reverse the judgment simply because the circumstances might also reasonably be reconciled with defendant’s alternate theories. [Citations.]” (People v. Farnam (2002) 28 Cal.4th 107, 144 (Farnam).)
We also reject Thompson’s argument that the court prejudicially erred by failing to instruct the jury that in order for the multiple murder special circumstance to apply to him he had to actually kill or intend to kill both victims. Without objection or request for modification, the court instructed the jury using language in CALJIC Nos. 8.80.1 and 8.81.3, as follows: “If you find defendant Willie Thompson in this case guilty of murder in the first degree, you must then determine if one or more of the following special circumstances: is or are true or not true: that defendant Thompson has in this proceeding been convicted of more than one offense of murder. [¶] The People have the burden of proving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstance is true, you must find it to be not true. [¶] If you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested or assisted any actor in the commission of the murder in the first degree. [¶]... [¶] To find that the special circumstance referred to in these instructions as multiple murder convictions is true, it must be proved: [¶] That defendant Thompson has in this case been convicted of at least one crime of murder of the first degree and one or more crimes of murder of the first or second degree.”
Thompson argues the instructions were legally incorrect because the court failed to instruct the jury that in order for the multiple murder special circumstance to apply to him he had to actually kill or intend to kill both victims, and the language in CALJIC 8.80.1 strongly suggested killing or intending to kill one victim was enough. We see no merit to the arguments. Consistent with case law interpreting the statutory requirements for a multiple murder special circumstances allegation (see § 190.2; People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150 ), the jury here was properly instructed that if it was not clear Thompson was the actual killer of “a” human being-meaning either Wallace or Hodge-the jury had to find Thompson acted with the intent to kill by assisting any actor in the commission of “the murder in the first degree” of that victim. There is no “reasonable likelihood” the jury interpreted the instructions as suggested by Thompson. (People v. Cross (2008) 45 Cal.4th 58, 67-68 (Cross).)
Section 190.2, subdivision (a)(3), provides that a defendant who is found guilty of murder in first degree may be imprisoned in the state prison for life without parole if he is found, in the same proceeding, to have been convicted of more than one offense of murder in the first or second degree. Subdivision (b) of section 190.2 provides that “[u]nless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer, as to whom the special circumstance has been found to be true... need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer... confinement in the state prison for life without the possibility of parole.” Subdivision (c) of section 190.2 provides that “[e]very person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree, ” shall be punishable by imprisonment in the state prison for life without the possibility of parole “if one or more of the special circumstances enumerated in subdivision (a) has been found to be true....” As explained by our Supreme Court in People v. Anderson, supra, 43 Cal.3d at pp. 1149-1150, “the language of... [section] 190.2[, subd.] (b) strongly supports the reading that intent to kill is not required unless the defendant is an aider and abetter rather than the actual killer.” The Court “adopt[ed] the following reading of the relevant statutory provision: intent to kill is not an element of the multiple-murder special circumstance; but when the defendant is an aider and abetter rather than the actual killer, intent must be proved.”
III. Denial of Defendants’ Joint Motion to Sever or Bifurcate Trial on Offenses of Possession of A Firearm By A Felon
A. Relevant Facts
Before trial, defendants jointly moved to sever or bifurcate the trial of the offenses of possession of a firearm by a felon from the murder offenses. The court denied the motion, explaining that joinder of the offenses was appropriate, and any prejudice resulting from the revelation of defendants’ felon status could be mitigated by defendants stipulating to that element of the offense so no information about the nature of defendants’ prior convictions would be presented to the jury. After the court denied defendants’ motions, both defendants agreed to stipulate they were convicted felons so the jury would hear only the fact of their felon status, but not the nature of the felony convictions.
During voir dire, both the court and defense counsel questioned prospective jurors concerning their ability to consider the fact of defendants’ prior felon status only on the firearm possession offenses, and to treat the murder charges separately. The trial court dismissed for cause prospective jurors who indicated that, among other things, they would not be able to consider the charges separately.
As part of the court’s closing instructions, the jury was told the elements of the crime of possession of firearm by a felon, and that, “In this case, the previous felony conviction has already been established by stipulation so that no further proof of that fact is required. You must accept as true, the existence of this previous felony conviction.” The court also told the jury, “There is a stipulation by the parties that each defendant was previously convicted of a felony. A prior conviction of a felony is an essential element of the crime charged, which the prosecution is otherwise required to prove beyond a reasonable doubt. Do not speculate as to the nature of the prior conviction. That is a matter which is irrelevant and should not enter into your deliberations. You must not be prejudiced against a defendant because of a prior conviction. You must not consider that evidence for any purpose other than for establishing a necessary element of the crime charged.” Finally, the jury was told, “A person previously convicted of a felony does not violate [the law] by being in possession of a firearm if: [¶] 1. He as a reasonable person had grounds for believing and did believe that he was or others were in imminent peril of great bodily harm; and [¶] 2. Without preconceived design on his part, a firearm was made available to him; [¶] 3. His possession of such firearm was temporary and for a period of time no longer than that in which the necessity or apparent necessity to use it in self-defense continued; and [¶] 4. The use of the firearm was reasonable under the circumstances and was resorted to only if no alternative means of avoiding the danger was available.”
B. Analysis
Defendants argue the trial court abused its discretion in refusing to sever or bifurcate the trial of the firearm possession offenses from the murder offenses because “a substantial danger of prejudice” existed at the time the motion was heard, requiring the firearm possession offenses to be tried separately or tried after the jury considered the murder offenses. We disagree with defendants’ contention.
“When the joinder statute (§ 954 ) would otherwise permit consolidation of charges, a trial court should, if requested, carefully exercise its discretion whether to try an ex-felon count separately ‘in the interests of justice.’ Insofar as the particular facts are known pretrial, the court must balance the legitimate benefits, judicial and prosecutorial, of a consolidated trial against the likelihood that disclosure of ex-felon status in a joint trial will affect the jury’s verdict on charges to which that status is irrelevant.” (People v. Valentine (1986) 42 Cal.3d 170, 179-180, fn. 3 (Valentine).) Nevertheless, “the burden is on the party seeking severance to establish clearly that a substantial danger of prejudice exists requiring that the charges be tried separately. [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 985 (Cunningham).) “[R]efusal to sever may be an abuse of discretion where ‘(1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a ‘‘strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all; and (4) any one of the charges carries the death penalty.’ [Citation.]” (Frank v. Superior Court (1989) 48 Cal.3d 632, 639.) “The first criterion is most significant because, if evidence on each of the joined charges would have been admissible in a separate trial on the other, ‘ “any inference of prejudice is dispelled.” ’ [Citations.]” (Cunningham, supra, 25 Cal.4th at p. 985.)
Section 954 reads, in relevant part: “An accusatory pleading may charge two or more different offenses connected together in their commission, ... or two or more different offenses of the same class of crimes or offenses, under separate counts...; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses... be tried separately....”
We see no abuse of discretion in the court’s denial of the motion for a severance. “Because complete cross-admissibility is not necessary to justify the joinder of counts [citation], in the present case the cross-admissible evidence concerning the [possession of firearms] would justify such joinder. [Citation.] The count alleging that defendant[s] possessed a firearm as an ex-felon is not unusually inflammatory or prejudicial. [Citation.] Nor did the joinder append a weak case to a strong one, or combine two noncapital cases into a capital case. [Citations.]” (Cunningham, supra, 25 Cal.4th at pp. 985-986.) “In light of the cross-admissibility of the evidence about whether a gun was used and by whom in the [murder] charge[s], the personal gun-use enhancement[s] and the charge[s] of ex-felon in possession of a gun, there is no abuse of discretion shown in the trial court’s ruling.” (People v. Gomez (1994) 24 Cal.App.4th 22, 28; see People v. Poggi (1988) 45 Cal.3d 306, 321-322.)
Similarly, we see no abuse of discretion in the court’s refusal to bifurcate the trial of the firearm possession offenses from the murder offenses. As the trial court correctly ruled in this case, it had “only two options when a prior conviction is a substantive element of a current charge: Either the prosecution proves each element of the offense to the jury, or the defendant stipulates to the conviction and the court ‘sanitizes’ the prior by telling the jury that the defendant has a prior felony conviction, without specifying the nature of the felony committed.” (People v. Sapp (2003) 31 Cal.4th 240, 262.) These two option were offered to defendants in this case. Accordingly, there was no error. (Ibid; see Valentine, supra, 42 Cal.3d at pp. 179-180, fn. 3.)
Even assuming the court’s ruling was correct when made, defendants argue reversal is required because the joint trial of the charges “ ‘actually resulted in “gross unfairness” amounting to a denial of due process[, ]’ [citation]” and a fair trial. (People v. Mendoza (2000) 24 Cal.4th 130, 162.) We conclude the argument fails. In the absence of a showing it is “reasonably probable” the joinder of the offenses affected the jury’s verdict, reversal is not required. (People v. Bean (1988) 46 Cal.3d 919, 940.) Assuming the jury accepted the testimony of the prosecution’s witnesses, there was strong direct and circumstantial evidence linking defendants to the murders of Wallace and Hodge. We further conclude, for the same reasons discussed in section V., infra, that the prosecutor’s closing remarks, when read in context, did not so exploit the admission into evidence of defendants’ felon status as to require reversal. Finally, a strong indication the jury was not influenced by any possible spillover affect of joinder is that during deliberations the jury asked for copies of certain exhibits relating to both murders, and the jury acquitted Thompson of causing Hodge’s death, thereby demonstrating the jury apparently viewed and evaluated the evidence on each count and sentence enhancement separately as required by the jury instructions. (See People v. Koontz (2002) 27 Cal.4th 1041, 1075.)
IV. Denial of Defendants’ Joint Wheeler/Batson Motion
A. Relevant Facts
Defendants made a joint motion challenging the prosecutor’s use of peremptory challenges against prospective Black and/or African-American jurors pursuant to People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson). At that point in the voir dire, the prosecutor had used 14 of 30 peremptory challenges, and he had excused six jurors who self-described themselves as Black and/or African-American. There was one self-described Black prospective juror who had been passed by all parties and was ultimately empanelled on the jury, and there were “a fair number of [B]lack jurors that remain[ed] in this jury panel” to be questioned by the court and counsel.
Ultimately the jury included two self-described Black and/or African-American jurors.
Outside the presence of the venire panel the court heard argument on defendants’ motion. Over the prosecution’s objection, the court found defendants had demonstrated a prima facie showing giving rise to an inference of discriminatory use of peremptory challenges by the prosecutor regarding the six excused jurors who self-described themselves as Black and/or African American.
Because the Attorney General does not challenge the court’s finding of a prima facie showing of discriminatory intent, we do not address the matter on this appeal. We express no opinion on whether defendants met their initial burden of demonstrating a prima facie case of group bias on the part of the prosecutor.
The prosecutor explained his reasons for striking the six prospective jurors, as follows: “Juror Number 61 indicated that she was unable to follow the rule that the testimony of a single witness, if believed, is sufficient to prove any fact. In her questionnaire, she indicated that she could not follow that rule; that she would need more proof and more witnesses. She was given an opportunity, after hearing the Court expand upon that rule, to come down from that position, and, frankly, she did not. She maintained during oral voir dire that she could not accept the testimony of a single witness as sufficient to prove a fact. And on that basis, I exercised a peremptory challenge of her. [¶] Juror Number 15 indicated to me in response to a question in oral voir dire as to whether or not she could disregard consideration of penalty or punishment if selected to serve, and she said, quite ambiguously, no. And that in light of what I thought was a bizarre explanation of her understanding of what it meant to be a thug, that thugs were either demons or angels. And her description of a fictional character from the Harry Potter series as a person who she greatly admires caused me great concern that she might be someone, according to her word, who would be plagued by notions of punishment and, accordingly, unable to give the prosecution a fair trial in this case. [¶] Juror Number 29, I think it was clear, and in particular from oral voir dire, he had... negative views toward police officers, in part based on his personal experience, and more specifically, a negative view towards Oakland [p]olice officers, based on the illustration he gave of his interaction with the police when he reported... [being]... robbed by the Lake. But it was clear that in general, he had a very negative view of the Oakland Police Department. He, also, called into question the motive of the District Attorney’s Office in filing [section] 12021 Counts in this case against each Defendant, and seemed to suggest it was the product of some trickery or some gamesmanship, and, accordingly, he could not give the People in this case a fair trial. [¶] Juror Number 25 sat a few days because I wasn’t quite certain what I was going to do with her, but what troubled me were three things: First, in her questionnaire, she indicated she had been fired by Home Depot. And the Court asked her to explain why she was fired. And she indicated that she was fired over something to do with money. And I wasn’t satisfied with her explanation when she tried to, I think, show that it wasn’t related to some concern that she had stolen. I found her response, frankly, to be confusing, and I’m concerned anytime that somebody has been terminated from a job. That, in and of itself, is not necessarily a problem, but someone who has been terminated based on mishandling of money is suggestive of someone who may be less than completely honest and somebody I don’t feel would be a fair and impartial juror to the prosecution in this case. [¶] I, also, am concerned that she had applied for work with the Sheriff’s Department in Alameda County and, apparently, been rejected. In my experience, people who have sought employment in law enforcement only to be rejected oftentimes develop an anti-law enforcement bias which derives from that rejection. [¶] I, also, as a third point on her, it’s one thing to seek a job in corrections because it’s a government job and pays good benefits and pays good wages and has a good retirement. I think it’s a little unusual when someone is drawn to the profession of working with prisoners to the extent they make it their college major, and she has a degree, I believe, from a university, I believe in Oklahoma, in corrections. And to me, that demonstrates a fascination with criminals that I find to be troubling, and accordingly, I did not feel she would be a fair and impartial juror for the prosecution in this case. [¶] As to Juror Number 78, two concerns that I have with her. In her questionnaire, she said she could not pass judgment; that that was only something that God was empowered to do. And although she attempted to distinguish, after some questioning by the Court and myself, between the notion of finding someone guilty or not guilty and notions of passing judgment, I did not find her answers to be satisfactory, which is why in questioning her, I incorporated the Court’s colloquy with [another prospective juror]... [who] had been excused previously from that seat. She did not satisfy me, in other words, in her responses that she truly understood the distinction, or that it was a distinction that would have any meaning for her. [¶] More importantly, I’m always troubled when someone has been prosecuted by the Office that I represent, and in this case, Juror Number 78 was prosecuted for welfare fraud by the Alameda County District Attorney’s Office and sustained a conviction as result of that prosecution. And, in my experience, people who have been prosecuted by my Office tend to have a negative view of my Office, and accordingly, I did not believe she would be a fair and impartial juror in this case. [¶] Finally, Juror Number 4 had serious issues with police officers that derived from a few things; one being her relationship, apparently, with an Oakland [p]olice officer who, during the course of that relationship, albeit in the past, would tell her about all of the various and sundry improper and illegal things that he did. It would be my concern that she would impute that kind of behavior, if she believed him, to the department as a whole and would, accordingly, not give a fair hearing to the testimony of the Oakland Police Department. [¶] Further, she made mention on a number of occasions of the Riders case and the opinions she’s formed about the Oakland Police Department as a result of the Riders prosecution.... I find that when people fill out the questionnaire, they have a tendency to be a bit more honest about their true feelings than they do when they’re responding to oral voir dire in open court in front of a large number of strangers. And so her attitude, clear attitude, toward police officers, which I would describe as a bias against police officers, suggested to me she would not be a fair and impartial juror for the prosecution in this case.” After the trial court mentioned certain comments made by Juror Number 4, the prosecutor also added that those comments describing the juror’s description of the arrest of her son at Juvenile Hall and “her belief that it was somehow improper to arrest him at his job site as simply another element tending to indicate a general bias against police officers.” Because the prosecutor did not take notes of everything said by every prospective juror, the prosecutor incorporated into his argument the questionnaires and portions of the transcript concerning the oral voir dire of each of the challenged jurors.
Coleman’s appellate counsel could find nothing in the reporter’s transcript of the voir dire supporting the prosecutor’s rationale for dismissing Juror Number 61. Thompson’s appellate counsel makes a similar comment. However, it appears that appellate counsel could not locate Juror Number 61’s contrary responses because the court reporter apparently referred to Juror Number 61 as Juror Number 31 at transcript pages 444-448. Based on the juror’s responses to questions asked by the court and the prosecutor at those pages of the reporter’s transcript, and a review of Juror Number 61’s written questionnaire, we are reasonably certain that both the prosecutor and the court questioned Juror Number 61 about her ability to follow the single witness rule after she had initially indicated she could follow the rule.
Coleman’s counsel did not take issue with incorporating the record of both the oral voir dire and the questionnaires. Nor did counsel raise any challenge to the prosecutor’s reasons for excusing the jurors, but noted only she was unclear as to how long Juror Number 25 had been sitting before her removal. Thompson’s counsel had “next to nothing to say, ” other than he did not think the credibility of police officers would ultimately play any part in the trial because the police officers’ testimony would be “rather noncontroversial.”
The court denied defendants’ Wheeler/Batson motion after finding the prosecutor’s explanations for striking the challenged jurors were factually based, legally appropriate, and were the actual basis for the challenges. In so ruling, the court explained: “As to Juror 61, I did have the same concerns with her with regards to following the testimony of a single witness rule, and her explanations weren’t necessarily satisfactory. And I can see how [the prosecutor] had an issue with that juror, particularly given the fact that, apparently, this case is going to rest greatly on the testimony of a single witness.... [¶] As to Juror 15, she was a very different sort of personality, and I was trying to understand why, in my mind, even though [the prosecutor] didn’t indicate it, some of her responses were either preceded by, or included, or followed with kind of an inappropriate almost laughter, or an attitude that seemed to indicate she was somehow minimizing what was going on. And that’s what made it more difficult, for instance, to understand, and was consistent with some of her explanations about thugs, for instance, being demons or angels. It was difficult to understand her state of mind. [¶] And, also, consistent with the Albus Dumbledore reference of one or two people she respects or admires the most, and that, therefore, made it more difficult to, also, understand how she viewed penalty and punishment, and whether or not she could truly disregard that rule that the jury may not consider.... [¶] Juror 29 was a very strong-willed individual as a labor rep, and I believed that... although he was clearly unhappy about what happened to him with regards to being robbed at gunpoint at the Lake, and not necessarily what happened that the Oakland Police Department, how they handled the case, the real concern that surfaced later was his belief that the DA had inappropriately charged Counts Three and Four. I spent a long time talking about it, in part because I misunderstood one of the key words.... But he was clearly questioning the motives of the District Attorney’s Office in filing the charge, and he was very strong about... how he was questioning these motives. And as a result, I understand how [the prosecutor] had some concerns about the state of mind of Juror... 29 questioning the DA’s motives.... [¶] As to Juror 25, ... I did have some serious concerns about her honesty... as a result of what she was willing to admit about why she was fired by Home Depot at two levels: One, it showed there was a clear moral turpitude issue of theft from Home Depot; and secondly, it appeared she wasn’t being forthcoming about what the real issue was. But... she wasn’t really honest and open about what happened, and that gave me concerns as well on two levels. So I can agree with [the prosecutor] as to the fact that she wouldn’t be a fair and impartial juror for those reasons.... [¶] Juror 78, ... [T]he two concerns that [the prosecutor] indicated that she did state, that she couldn’t pass judgment, and... she indicated from her questionnaire, her answer to the question is, do you hold religious beliefs that might affect your ability or willingness to serve in a criminal case, she marked the box yes, and explained by saying, ‘Choose not to pass judgment on any individual. That is God’s duty.’ And that despite her explanation, it was not necessarily a religious belief[, i]t may have been based in part on a religious belief, but she, actually did not want to. It was her choice rather than a feeling there was a religious compulsion not to, even though that may have been the original foundation. [¶] And clearly, the fact she had been prosecuted by the Alameda County DA’s Office for welfare fraud.... [¶] Juror Number 4[, ]... the real concern that I had, that I agree with [the prosecutor], is the way she views Oakland Police Department and officers in general. And, of course, as I indicate, our criminal justice system is designed to have police officers work with the DA’s office, and I described how they investigate [and] submit a police report to the DA’s Office. Of course, they become witnesses for the DA in attempting to prosecute the case. [¶] And her incredibly negative opinion of this individual who worked as a police officer, even after she described he committed criminal conduct against her, but, also, how he had described not only his behavior on the job while on the street, but also, that of other Oakland [p]olice officers that he worked with and witnessed, and that seemed to be consistent with what she indicated was brainwashing, even though she did correct it..., but she had very, very strong feelings about the Oakland Police Department that were completely negative. [¶] And she did indicate an inappropriate arrest of her son at the job site, which was, of course, connected to law enforcement and the DA’s Office filing charges....”
The trial court did not necessarily accept the prosecutor’s additional reasons for striking Juror Number 25, namely, that the juror’s college degree in corrections showed a “troubling” fascination with criminals, and the rejection of her application to work with the Alameda County Sheriff’s Department showed she might have an anti-law bias. Because the trial court did not base its ruling on those reasons given by the prosecutor, “ we need not discuss whether th[ose] reason[s] for recusal [were] genuine. ” (People v. Avila (2006) 38 Cal.4th 491, 545, fn. 36 (Avila).)
B. Analysis
“Both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on race.... [Citations.] Such a use of peremptories by the prosecution ‘violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.’ [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).)
The procedure to evaluate claims of discriminatory use of peremptory challenges is the same under both the state and federal Constitutions. (Bonilla, supra, 41 Cal.4th at p. 341.) “There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.]” (Ibid,) When a defendant objects to a prosecutor’s use of a peremptory challenge, the procedure “is settled: ‘First, the defendant must make out a prima facie case by “showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the [peremptory challenge] has proved purposeful racial discrimination.” [Citation.]’ [Citations.]” (People v. Lancaster (2007) 41 Cal.4th 50, 74 (Lancaster), quoting Johnson v. California (2005) 545 U.S. 162, 168.) At issue on this appeal is the third step of the analysis.
We initially see no relevance to defendants’ comments that some of the prosecutor’s reasons for excusing jurors are “far fetched to say the least, ” an “overstatement, ” “simply puzzling, ” “unpersuasive, ” or “dubious.” At the third stage of the analysis, “ ‘[t]he proper focus... is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons.’ [Citation.]” (People v. Adanandus (2007) 157 Cal.App.4th 496, 506 (Adanandus).) “ ‘The party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race-or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice. [Citations.]’ ” (People v. Ervin (2000) 22 Cal.4th 48, 74-75.) “ ‘A reason that makes no sense is nonetheless “sincere and legitimate” as long as it does not deny equal protection. [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 936 (Stanley).)
We also reject defendants’ related contentions that the court failed to make adequate findings regarding the true factors motivating the prosecutor’s challenges, a remand for adequate findings is required, and de novo review is appropriate because the trial court did not conduct a complete and thorough analysis. Following the procedure outlined by our Supreme Court in People v. Lenix (2008) 44 Cal.4th 602 (Lenix), the trial court here “considered the prosecutor’s reasons for the peremptory challenges at issue and found them to be race-neutral;... those reasons were consistent with the court’s observations of what occurred, in terms of the panelist’s statements as well as any pertinent nonverbal behavior; and... the court made a credibility finding that the prosecutor was truthful in giving race-neutral reasons for the peremptory challenges.” (Id. at p. 625; see People v. Ledesma (2006) 39 Cal.4th 641, 680, fn. 7 (Ledesma).) Consequently, “[w]e review the trial court’s ruling on the question of purposeful racial discrimination for substantial evidence. [Citation.]” (Avila, supra, 38 Cal.4th at p. 541.) “As a reviewing court, we presume the [prosecutor] use[d] peremptory challenges in a constitutional manner, and defer to the trial court’s ability ‘to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.’ [Citation.]” (Lenix, supra, 44 Cal.4th at p. 626.) “So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.” (People v. Burgener (2003) 29 Cal.4th 833, 864.) As we now discuss, defendants’ contentions that there is insufficient evidence to support the trial court’s ruling are unavailing.
Specifically, we see no merit to defendants’ arguments that the prosecutor’s exclusion of jurors who had negative experiences with the criminal justice system was evidence of discrimination because police misconduct was not at issue and the testimony of the police officers was relatively unimportant. (See Lancaster, supra, 41 Cal.4th at p. 77 [“no inference of discrimination arises from the removal of a prospective juror whose brother had a recent negative experience with the criminal justice system”]; Farnam, supra, 28 Cal.4th at p. 138 [“close relative’s adversary contact with the criminal justice system” is one ground on which the prosecutor might reasonably have challenged prospective juror]; People v. Turner (1994) 8 Cal.4th 137, 171 (Turner) [courts have “repeatedly upheld peremptory challenges made on the basis of a prospective juror’s negative experience with law enforcement”], overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; Wheeler, supra, 22 Cal.3d at p. 277, fn. 18 [prospective juror’s disclosure of his own conviction or relative’s conviction of a crime and current incarceration “has often been deemed to give rise to a significant potential for bias against the prosecution”]).
Nor are we persuaded by defendants’ contentions that some of the challenged jurors indicated by their responses they would be appropriate pro-prosecution jurors.A prospective juror’s expression of an ability to put aside personal opinions and follow the law does “not signify... the prosecutor was bound to accept [the juror] if reasons apart from group bias supported his challenge....” (People v. Cornwell (2005) 37 Cal.4th 50, 72, disapproved on another ground in Doolin, supra, 45 Cal.4th at p. 421 & fn. 22; see People v. Watson (2008) 43 Cal.4th 652, 679-680; Avila, supra, 38 Cal.4th at pp. 554-555.)
Also unavailing is defendants’ challenge to the court’s ruling based on a comparative analysis of the excused jurors and jurors that were ultimately empanelled. Although “evidence of comparative juror analysis must be considered... even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons, ” such an analysis “on a cold appellate record has inherent limitations.” (Lenix, supra, 44 Cal.4th at p. 622.) “When a comparative juror analysis is undertaken for the first time on appeal, the prosecutor is never given the opportunity to explain the differences he perceived in jurors who seemingly gave similar answers. [¶] Moreover, the selection of a jury is a fluid process, with challenges for cause and peremptory strikes continually changing the composition of the jury before it is finally empanelled.... ‘The particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view. If the panel as seated appears to contain a sufficient number of jurors who appear strong-willed and favorable to a lawyer’s position, the lawyer might be satisfied with a jury that includes one or more passive or timid appearing jurors. However, if one or more of the supposed favorable or strong jurors is excused either for cause or [by] peremptory challenge and the replacement jurors appear to be passive or timid types, it would not be unusual or unreasonable for the lawyer to peremptorily challenge one of these apparently less favorable jurors even though other similar types remain. These same considerations apply when considering the age, education, training, employment, prior jury service, and experience of the prospective jurors.’ [Citation.] [¶]... Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.” (Id, at pp. 623-624.) Because the issue is raised for the first time on appeal in this case, our review is necessarily circumscribed. We review the trial court’s finding “on the record as it stands at the time the Wheeler/ Batson ruling is made.” (Id, at p. 624.) We see no reason to question the trial court’s findings in this case as the “examples of ‘comparative’ jurors cited by defendant[s] are not truly comparable to those whom the prosecutor excused.” (Ledesma, supra, 39 Cal.4th at p. 679; see also Avila, supra, 38 Cal.4th at p. 547 [a single similarity between jurors does not mean the jurors are similarly situated for purposes of comparative analysis]; Turner, supra, 8 Cal.4th at pp. 169-170 [court rejected defendants’ argument that prosecutor’s justifications for excusing prospective jurors should be rejected to the extent other non-Black jurors apparently exhibiting the same limitations were not excused].)
V. Prosecutor’s Misconduct
Defendants argue the prosecutor committed prejudicial misconduct by “repeatedly characteriz[ing] [defendants] as pack ‘animals’ stalking their prey up the street.” However, defendants’ failure to object to the comments forfeits any challenge on appeal. “ ‘[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ [Citation.]” (Stanley, supra, 39 Cal.4th at p. 952.) In any event, we see no prejudicial misconduct.
“ ‘ “[C]ounsel during summation may state matters... which are common knowledge or are illustrations drawn from common experience, history or literature. ” [Citation.] “A prosecutor may ‘vigorously argue his case and is not limited to “Chesterfieldian politeness” ’ [citation], and he may ‘use appropriate epithets....’ ” ’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 221.) Here, the prosecutor’s analogizing defendants’ conduct to the behavior of animals hunting prey was consistent with the People’s theory-that defendants armed themselves with loaded firearms and followed the victims as they were attempting to leave The Village to avoid trouble with defendants. (See People v. Jones (1970) 7 Cal.App.3d 358, 362 [prosecutor’s remarks that defendant had “animalistic tendencies” and “felonious tendencies” were within bounds of legitimate argument and not misconduct as the attack on the victim was “indeed felonious and consistent with animalistic tendencies, i.e., pursuit and vicious attack without provocation”]; see also People v. San Nicolas (2004) 34 Cal.4th 614, 665-666 [court found nonprejudicial prosecutor’s use of numerous epithets and derogatory language in closing argument, including references to defendant as “that animal”].)
Defendants also challenge the prosecutor’s reference to their status as convicted felons. The prosecutor commented: “You heard Matthew [Cobbs] talk about stash guns in the village, he has seen WL [Thompson’s nickname] and Moon[ie] [Coleman’s nickname] stash guns before. They were both convicted felons, so presumably they didn’t want to get pulled over in a car with guns. Matthew saw no guns in the car, he certainly would have seen that rifle.” Again, as defendants did not object to the quoted comment, their challenge is forfeited for review. (Stanley, supra, 39 Cal.4th at p. 952.) In any event, we find no prejudicial misconduct. Both defense counsel listened to the prosecutor’s closing remarks and did not object to the remarks, which suggests “ ‘ “the potential for [prejudice] argued now was not apparent to one on the spot.” ’ [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1203 (Young).) Additionally, the court instructed the jurors to consider the evidence of defendants’ felon status for a limited purpose, and any statements made by counsel that conflicted with the court’s instructions must be disregarded. In the absence of any indication to the contrary, we presume the jury followed the court’s instruction to consider defendants’ status as convicted felons only on the issue of whether they were guilty of possessing firearms as felons.
Nor are we persuaded by defendants’ contention that the prosecutor committed prejudicial misconduct by his “quite pointed demands that jurors had the specific duty and responsibility to act as representatives of the community, clean up the community, send a message for the good people of that community, and send a message against bad people like defendants (ex-felons) plaguing the community....” Both defense counsel objected to a portion of the prosecutor’s remarks on the ground “the prosecutor’s comments were “an appeal to passion and prejudice[, ] about sending messages to people... [¶] [and] had nothing to do with the law.” The court responded by telling the jurors they were “the judges of the facts, and it’s your decision as to what the facts are as they may apply to the elements of the offenses.” Defense counsel did not request the court further admonish the jury to disregard the prosecutor’s comment.
We initially note that except for the one noted objection by defense counsel, defendants forfeited their claim of prosecutorial misconduct. (Stanley, supra, 39 Cal.4th at p. 952.) In any event, the language used by the prosecutor in this case was similar to the nonprejudicial comments made by the prosecutor in Adanandus, supra, 157 Cal.App.4th 496. In that case, the police responded to a shooting on 65th Avenue in Oakland. (Id, at p. 499.) Multiple shots were fired from a passing minivan into a station wagon parked in a driveway. (Ibid,) There were three men in the station wagon; one man was killed and another man was shot in the arm. (Ibid,) Defendant, who was later identified as the shooter, was charged with first degree murder and first degree attempted murder, as well as a driveby special allegation, and an allegation of personal and intentional use of a firearm causing great bodily injury. (Ibid.) In his closing remarks, the prosecutor initially told the jury, “ ‘With your verdicts in this case, I’m not asking you to bring [the victim] back to his mother; that’s not possible. But what you can do with your verdicts in this case is you can restore order. The sense of order, the sense of law, the 2500 block of 65th Avenue in the City of Oakland, because it certainly wasn’t there on April 19, 2005, when [defendant] was, to use his own words, “going down the line, ” he was going to leave more bodies on the map.’ The prosecutor returned to his law and order theme as he concluded his argument: ‘Ladies and gentlemen, the 2500 block of 65th Avenue... had no concept of law and order. None whatsoever.... [¶] What you can do [by your verdicts] is restore justice to that street. That street on that day was without justice.... [¶]... [¶] You, as jurors in this case, have taken an obligation and oath to uphold the law. Believe in the law. Restore the law to the 2500 block of 65th Avenue, those are the only true and correct verdicts in this case, and I am confident and believe that you’ll return those verdicts.’ ” (Id, at pp. 511-512.) In ruling the prosecutor’s quoted comments did not constitute misconduct, this court stated: “[I]t ‘is permissible to comment on the serious and increasing menace of criminal conduct and the necessity of a strong sense of duty on the part of jurors. [Citation.] The prosecution may properly urge his points vigorously as long as he does not act unfairly.’ [Citation.] The prosecution’s references to the idea of restoring law and order to the community were an appeal for the jury to take its duty seriously, rather than efforts to incite the jury against defendant. Thus, [the remarks] were not misconduct. (People v. Wash (1993) 6 Cal.4th 215, 261-262 [no misconduct where prosecutor urged ‘jury “to make a statement, ” to do “the right thing, ” and to restore “confidence” in the criminal justice system by returning a verdict of death’]; People v. Lang (1989) 49 Cal.3d 991, 1041 [prosecutor’s remarks that ‘if you want to have a voice in your community and an effect upon the law in the community, this is your opportunity’ (italics omitted) not improper because ‘[n]o reasonable juror would have construed the remarks as urging the jurors to follow community sentiment rather than their own judgment’].)” (Adanandus, 157 Cal.App.4th at p. 513; see People v. Carpenter (1997) 15 Cal.4th 312, 397 [prosecutor’s references to the “measure of a society” did not inject issues broader than defendant’s guilt and invite the jury to render a verdict based on public opinion].)
Even if the prosecutor’s arguments in this case might be interpreted as an improper appeal to the jury’s passions and prejudices, they could not, by themselves, have unduly persuaded the jury. The prosecutor’s comments about the nature of the community in which the shootings took place were based on the evidence presented at trial. When defense counsel objected to the prosecutor’s comment that the jury should send a message, the court informed the jurors they were “ the judges of the facts, and it’s your decision as to what the facts are as they may apply to the elements of the offenses. ” The prosecutor’s remarks following this admonition did not repeat the challenged argument. Both defense counsel expressly and forcibly responded to the prosecutor’s comments in their closing arguments. Before deliberations the court instructed the jury it “must not be influenced by pity for or prejudice against a defendant, ” or “by sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” “[W]e presume the jury relied on the instructions, not the arguments, in convicting defendant[s].” (People v. Morales (2001) 25 Cal.4th 34, 47.) Nothing in the record indicates the jurors did anything other than focus on the evidence and the court’s instructions in reaching their verdicts. Viewing the prosecutor’s comments in context, and in their entirety, we do not believe “there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (Id. at p. 44.)
“Because any possible misconduct was harmless on this record, [defendants’] claim[s] of ineffective assistance of trial counsel lack merit.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 95 (Coffman and Marlow).) “[C]ompetent counsel may often choose to forgo even a valid objection. ‘[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1197.)
Our discussion of defendants’ challenges to jury instructions is based on the instructions given in this case. The court used language found in CALJIC instructions at the time of the trial in September and October 2007. For convenience, we refer to the actual instructional language by the CALJIC numbers used by the court. We express no opinion on any modifications made to the CALJIC instructions after the trial in this case or the new CALCRIM instructions.
“We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.]... ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We presume the “jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citations.]” (People v. Mills (1991) 1 Cal.App.4th 898, 918.) “A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant.” (Cross, supra, 45 Cal.4th at pp. 67-68.)
A. Self-Defense and Unreasonable Self-Defense
Without objection or request for modification, the court advised the jury on defendants’ right to self-defense using language in CALJIC Nos. 5.50 (self-defense-assailed person need not retreat), 5.54 (self-defense by an aggressor), and 5.55 (plea of self-defense may not be contrived). The jury was told, in pertinent part: “A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of his right of self-defense a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene” (CALJIC No. 5.50); “[i]f the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense” (CALJIC No. 5.54); and “[t]he right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense” (CALJIC No. 5.55). On the issue of unreasonable self-defense, the court advised the jury using language in CALJIC No. 5.17 (actual but unreasonable belief in necessity to defend-manslaughter), as follows: “A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter. [¶] As used in this instruction, an ‘imminent’ peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. [¶] However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force or attack. [¶] This principle applies equally to a person who kills in purported self-defense or purported defense of another person.”
The court’s instructions using language in CALJIC Nos. 5.17 and 5.55 are correct statements of the law. CALJIC No. 5.17 derives from In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 (see also People v. Hardin (2000) 85 Cal.App.4th 625, 630 & fn. 2, 634), and CALJIC No. 5.55 derives from People v. Hinshaw (1924) 194 Cal. 1, 26.)
We reject defendants’ contention that the challenged instructions were legally incorrect because they failed to include “the exception for cases in which a victim (here, [Hodge] with the.357) escalates an assault by responding in deadly fashion.” The jury in this case was advised that “[i]f the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense.” (CALJIC No. 5.54.) “ ‘[T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial.’ [Citation.] ‘The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.’ [Citation.]” (People v. Burgener (1986) 41 Cal.3d 505, 538-539, disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 756.)
To the extent defendants contend the instructions failed to clarify the type of “quarrel” (CALJIC No. 5.55) or “wrongful conduct” (CALJIC No. 5.17) that would forfeit a defendant’s right of self-defense, the issue is forfeited “because defendant[s] did not request such clarification” at the trial. (People v. Jenkins (2000) 22 Cal.4th 900, 1020 (Jenkins); see People v. Miceli (1951) 101 Cal.App.2d 643, 648-649 [defendant asserting self-defense claim must request amplification where defense is based on “sudden and perilous” counter assault].)
Defendants’ additional contention that there was no evidence supporting an instruction that their right of self-defense may not be contrived (CALJIC No. 5.55) is without merit. The evidence demonstrated defendants were not seeking just “an argument or fist-fight” with the victims. Even if defendants saw Cobbs give a gun to Hodge, such conduct did not entitle defendants to arm themselves and provoke a deadly confrontation as the victims attempted to leave the area to avoid trouble. On these facts, the court reasonably determined an instruction using language in CALJIC No. 5.55 was appropriate. “A trial judge’s superior ability to evaluate the evidence renders it highly inappropriate for an appellate court to lightly question his determination to submit an issue to the jury. A reviewing court certainly cannot do so where, as here, the trial court’s determination was agreeable to both the defense and the prosecution.” (People v. McKelvy (1987) 194 Cal.App.3d 694, 705.)
Even if the instruction using language in CALJIC No. 5.55 should not have been given, we find no prejudice. The challenged language was just a portion of eighteen instructions on self-defense and unreasonable self-defense, “some of which were mutually exclusive. It was obvious to anyone that not all of those instructions could apply to the case....” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1381.) The jurors were specifically instructed, “Some of these instructions may not apply, depending on your findings about the facts of the case.... After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” We presume the jurors followed the court’s instructions to disregard those instructions that did not apply to the facts found by the jurors.
B. Accomplice Liability and Natural and Probable Consequences Doctrine
Without objection or request for modification, the court instructed the jury on accomplice liability and the natural and probable consequences doctrine using language in CALJIC Nos. 3.00 (principals-defined, § 31), 3.01 (aiding and abetting-defined), 3.02 (principals-liability for natural and probable consequences). The instructions given in this case have been held to be correct statements of law generally. (People v. Richardson (2008) 43 Cal.4th 959, 1022 [discussing language in CALJIC No. 3.02]; Coffman and Marlow, supra, 34 Cal.4th at pp. 106-107 [discussing language in CALJIC Nos. 3.01 and 3.02]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165 (Samaniego) [discussing language in CALCRIM 400 that corresponds to language in CALJIC No. 3.00]; People v. Brigham (1989) 216 Cal.App.3d 1039, 1046-1047, 1055-1056 [court properly rejected engrafting concepts of conspiracy liability on aiding and abetting instructions]; but cf. People v. Nero (2010) 181 Cal.App.4th 504, 518 (Nero) [even in unexceptional circumstances language in CALJIC No. 3.00 can be misleading].)
We conclude defendants’ challenges to the instructions are not properly before us as there was no objection or request for modification by defense counsel at trial. (Jenkins, supra, 22 Cal.4th at p. 1020; Samaniego, supra, 172 Cal.App.4th at p. 1163.) In any event, as we now discuss, the given instructions do not require reversal.
Using language in CALJIC No. 3.00, the court specifically advised the jury that, “Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime” (CALJIC No. 3.00). Defendants argue the court’s use of the “equally guilty” language was erroneous because it implies “a nonkiller is automatically guilty of first-degree murder as long as the killer premeditates.” We disagree. The “equally guilty” language in CALJIC No. 3.00 addresses the basic, introductory concept of principal liability in that both an actual perpetrator of a crime and a person who aids and abets the perpetrator’s commission of a crime are deemed to be principals. (§ 31.) The sentence using the “equally guilty” language does not tell the jury that, in effect, the actual perpetrator and the aider and abettor are or must be found guilty of the same offense, and given the other instructions, no juror would reasonably so interpret the language as defendants suggest.
Since the trial in this case, CALJIC No. 3.00 has been modified by incorporating language reflected in People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), and Samaniego, supra, 172 Cal.App.4th 1148. (See Use Note to CALJIC No. 3.00 (Spring 2010 Revision) (Spring 2010 ed.) p. 113.) CALJIC now directs a court to instruct a jury, in relevant part: “When the crime charged is... [murder]..., the aider and abettor’s guilt is determined by the combined acts of all the participants as well as that person[’s] own mental state. If the aider and abettor’s mental state is more culpable than that of the actual perpetrator, that person’s guilt may be greater than that of the actual perpetrator. Similarly, the aider and abettor’s guilt may be less than the perpetrator’s, if the aider and abettor has a less culpable mental state.” (CALJIC No. 3.00 (Principals – Defined (Spring 2010 Revision) (Spring 2010 ed.) p. 112.)
Using language in CALJIC Nos. 3.01 and 3.02, the court also specifically advised the jury that, “ A person aids and abets the commission of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purposes of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime. [¶] Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting. [¶] One who aids and abets another in the commission of a crime or crimes is not only guilty of that crime or those crimes, but also is guilty of any other crime committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted. [¶] In order to find the defendant guilty of the crimes as charges in Counts 1 [first degree murder of Wallace] & 2 [first degree murder of Hodge], you must be satisfied beyond a reasonable doubt that: ¶] 1. The crime or crimes of Murder was or were committed; [¶] 2. That the defendant aided and abetted that or those crimes; [¶] 3. That a co-principal in that crime committed the crimes of Murder; and [¶] 4. The crimes of Murder was or were a natural and probable consequence of the commission of the crimes of Murder. [¶] In determining whether a consequence is ‘natural and probable, ’ you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A ‘natural’ consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen. [¶] You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of Murder was a natural and probable consequence of the commission of that target crime. ”
Defendants argue the use of language in CALJIC Nos. 3.01 and 3.02 was prejudicial because everything in the instructions “implies a nonkiller is automatically liable for first-degree murder as long as the actual killer” acts with premeditation; and the instructions failed “to explain the actual killer’s premeditation (not just any second-degree murder) must be foreseeable to a nonkiller.” However, “ if the instructions were susceptible of the interpretation defendant[s] now assert[], counsel likely would have objected at trial on this basis.” (Young, supra, 34 Cal.4th at p. 1203.) Additionally, the given instructions using the language in CALJIC Nos. 3.01 and 3.02 could not reasonably be interpreted as defendants suggest. CALJIC No. 3.01 focused the jury’s attention on and held defendants accountable for their own mental states with regard to the victims’ murders. (McCoy, supra, 25 Cal.4th at pp. 1120, 1122.) The jury instructions given on first degree murder (CALJIC Nos. 8.00, 8.10, 8.11, 8.20), second degree murder (CALJIC No. 8.30), and voluntary manslaughter (CALJIC No. 8.40), made it clear that defendants could not be found guilty of those offenses without possessing the required mental state. The jury was to consider separately whether either defendant was guilty of first degree murder, second degree murder, or voluntary manslaughter (CALJIC Nos. 8.50, 8.70, 8.71, 8.72, 8.74, 8.75), and specify the crimes committed by each defendant, if any, in the verdict sheet (CALJIC No. 8.70, 17.00, 17.02). Any doubt as a defendant’s liability for murder in the first degree, murder in second degree, or manslaughter, had to be resolved in that defendant’s favor (CALJIC Nos. 8.71, 8.72), and there had to be unanimous agreement as to whether a defendant was guilty of first degree murder, second degree murder or manslaughter (CALJIC No. 8.74). As part of its duty “to determine whether the defendant is guilty or not guilty of murder in the first degree or of any lesser crime thereto, ” the jury was told it had the “discretion to choose the order in which [it] evaluate[d] each crime and consider[ed] the evidence pertaining to it.” There is no reasonable likelihood the jury misunderstood the instructions, when considered as a whole.
Defendants’ reliance on People v. Woods (1992) 8 Cal.App.4th 1570 (Woods), is misplaced. In Woods, two defendants (Barry Dewayne Woods and John Windham) were convicted of first degree murder after they both assaulted two victims to coerce them into telling defendants where someone was located and Woods shot and killed another victim outside a nearby apartment complex. (Woods, supra, at pp. 1577, 1579.) Windham was prosecuted under the theory the first degree murder committed by Woods outside the apartment complex was a reasonably foreseeable consequence of the assaults in which he participated, and he was therefore liable as an aider and abettor for the first degree murder committed by Woods. (Id, at pp. 1579, 1596.) The appellate court reversed Windham’s conviction, concluding the trial court erred when it responded to a question from the jury during deliberations by informing the jurors they could not convict Windham of second degree murder as an aider and abettor if they determined Woods (the perpetrator of the killing) was guilty of first degree murder. (Id, at pp. 1577, 1579, 1596.) The Woods court explained that, “in determining aider and abettor liability for crimes of the perpetrator beyond the act originally contemplated, the jury must be permitted to consider uncharged, necessarily included offenses where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence. Otherwise..., the jury would be given an unwarranted, all-or-nothing choice for aider and abettor liability.” (Id, at p. 1588.)
Unlike the situation in Woods, the jurors in this case were not “given an unwarranted, all-or-nothing choice” of either convicting both defendants of the same crime or of acquitting the aider and abetter of any liability for the killing. (Woods, supra, 8 Cal.App.4th at pp. 1588, 1590.) As recognized by our Supreme Court, and applicable to the circumstances of this case, “the dividing line between the actual perpetrator and the aider and abettor is often blurred. It is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.... The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices’ actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role.” (McCoy, supra, 25 Cal.4th at p. 1120.)
Even if we assume the trial court’s instructions did not adequately instruct the jury on the matter of accomplice liability, reversal is not required. The evidence established each “defendant ‘weigh[ed] and consider[ed] the question of killing’ before deciding” to actually commit or aid and abet the other in committing first-degree murders of Wallace and Hodge. (People v. Prieto (2003) 30 Cal.4th 226, 253 (Prieto).) Before the incident, both defendants discussed their animus against Hodge and Wallace. When Hodge was seen on the street, the car was stopped and defendants quickly secured loaded weapons. Both defendants then followed both victims as the victims attempted to leave The Village. When the opportunity arose (Wallace said, “Let’s fight”), Thompson responded by firing his gun at Wallace, and then firing his gun at Hodge. At about the same time, Coleman fired his rifle at Hodge. In light of this evidence, there is no reasonable doubt the jury found that each defendant personally acted with willfulness, deliberation, and premeditation, once it rejected defendants’ principal claim that Hodge was the first person who fired a gun causing defendants to respond in justifiable self-defense. “Accordingly, any omission in the instructions, even if erroneous, was harmless under both Chapman v. California (1967) 386 U.S. 18, 24, and [People v.] Watson [(1956)] 46 Cal.2d [818, 836 (Watson)].” (Prieto, supra, 30 Cal.4th at p. 254; but cf. People v. Hart (2009) 176 Cal.App.4th 662, 665 [prejudicial error when instructions given failed to inform jury that to convict defendant of attempted premeditated murder under natural and probable consequences doctrine, the jury had to find attempted premeditated murder was a natural and probable consequence of the attempted robbery].)
C. Conspiracy Liability
Although defendants were not charged with the crime of conspiracy, the prosecutor requested instructions on conspiracy as one of the theories of liability for first degree murder of both victims on the ground the evidence supported an inference that an agreement existed between defendants to confront and kill the victims. Alternatively, the prosecutor argued that even if the jury concluded there was only a conspiracy to kill Hodge, and Wallace was not the subject of the original conspiracy, his murder was something that occurred during the furtherance of the conspiracy and as a natural and probable consequence of the conspiracy to kill Hodge. Over objections by both defense counsel, the court granted the prosecutor’s request that the jury be instructed on conspiracy using language in CALJIC Nos. 6.10.5 (conspiracy and overt act-defined-not pleaded as a crime charged), 6.11 (conspiracy-joint responsibility), and 6.12 (conspiracy-proof of express agreement not necessary). The court found a theory of liability based on conspiracy was supported by the facts heard by the jury. When the court indicated it would instruct the jury on conspiracy over defense objections, Thompson made no objection to the instructions requested by the prosecutor. The court granted Coleman’s request to give additional instructions using language in CALJIC Nos. 6.13 (association alone does not prove membership in conspiracy), 6.16 (when conspirators not liable for act or declaration of co-conspirator), 6.18 (commission of act in furtherance of a conspiracy does not itself prove membership in conspiracy), 6.20 (withdrawal from conspiracy), and 6.21 (liability for acts committed after termination of conspiracy). As we now discuss, defendants’ challenges to the conspiracy instructions do not require reversal.
“It is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.] ‘Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal conspiracy [citation]; nor, it follows, does it preclude the giving of jury instructions based on a conspiracy theory [citations].’ [Citation.]” (People v. Belmontes (1988) 45 Cal.3d 744, 788-789, disapproved on another ground in Doolin, supra, 45 Cal.4th at p. 421 & fn. 22.)
Defendants argue there was no evidence of any conspiracy, noting that “Cobbs did not report one single word suggestive of an agreement to murder anyone, ” and inferring a coherent conspiracy to murder the victims based on “general trash talking, prearming in a dangerous area, and confronting erstwhile friends during a chance late night encounter is sheer speculation.” We conclude defendants’ argument is without merit.
“ ‘The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.) Thus, to establish the existence of a conspiracy, “it is not necessary to prove that the parties met and actually agreed to perform the unlawful act or that they had previously arranged a detailed plan for its execution.” (People v. Lipinski (1976) 65 Cal.App.3d 566, 575.) Nor is it necessary for the People to establish defendants as conspirators “personally participated in each of several overt acts [because] members of a conspiracy are bound by all acts of all members committed in furtherance of the conspiracy.” (People v. Cooks (1983) 141 Cal.App.3d 224, 312.) Contrary to defendants’ contention, the evidence was far from speculative. Rather, it permitted the jury to reasonably infer both defendants had some animus against both victims. As soon as defendants spotted the victims, they stopped the car and immediately armed themselves with loaded guns that had been stashed in the neighborhood. Defendants then proceeded to follow the victims as the victims attempted to leave the area to avoid any confrontation with defendants. When the opportunity arose, Thompson and Coleman fired their guns at the victims. Defendants’ immediate flight after the shootings was evidence of their consciousness of guilt. Having reviewed the record, we are satisfied the trial court properly instructed on the principles of conspiracy over defense counsels’ objections.
The conspiracy instructions were correct statements of the law. (Prieto, supra, 30 Cal.4th at pp. 249-250.) Our Supreme Court has specifically rejected defendants’ contention that the language in CALJIC Nos. 6.11 and 6.16 misstates conspiracy liability. (Prieto, supra, at pp. 249-250.) Because we are bound by the Supreme Court’s ruling (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we do not further address the issue.
D. Voluntary Intoxication
Without objection or request for modification by defense counsel, the court instructed the jury on the issue of voluntary intoxication using language in CALJIC No. 4.21.1. The jury was specifically told: “It is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. [¶] Thus, in the crimes of possession of firearm by a felon charged in Counts 3 & 4, the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve defendant of responsibility for the crime. This rule applies in this case only to the crimes of possession of firearm by a felon. [¶] However, there is an exception to this general rule, namely, where a specific intent is an essential element of a crime. In that event, you should consider the defendant’s voluntary intoxication in deciding whether the defendant possessed the required specific intent at the time of the commission of the alleged crime. [¶] Thus, in the crimes of First Degree Murder, charged in Counts 1 & 2, or the lesser crimes of Second Degree Murder and Voluntary Manslaughter, or the allegations of intentional discharge of a firearm which proximately caused great bodily injury and death, intentional discharge of a firearm, or personal use of a firearm, a necessary element is the existence in the mind of the defendant of certain specific intents which is included in the definition of the crimes set forth elsewhere in these instructions. [¶] If the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that defendant had the required specific intent. [¶] If from all the evidence you have a reasonable doubt whether a defendant had the required specific intent, you must find that defendant did not have that specific intent. [¶] In deciding whether a defendant is guilty as an aider and abettor, you may consider evidence of voluntary intoxication in determining whether a defendant tried as an aider and abettor had the required mental state. However, intoxication evidence is irrelevant on the question whether a charged crime was a natural and probable consequence of the originally contemplated crime.”
Defendants contend the quoted instructions were legally incorrect because the intoxication instructions needed to apprise jurors they “must, ” not “should” or “may, ” consider all the evidence regarding intoxication. We disagree. The challenged language must be considered in the context of the intoxication instruction as a whole, as well as the other instructions. (People v. Jablonski (2006) 37 Cal.4th 774, 831.) The jury was first advised of the statement of the general rule that voluntary intoxication does not make an act less criminal, and the rule only applied to the crimes of possession of a firearm by a felon as charged in counts three and four of the information. (People v. Aguirre (1995) 31 Cal.App.4th 391, 401.) The jury was then told “there is an exception to this general rule, namely, where a specific intent is an essential element of a crime. In that event, you should consider the defendant’s voluntary intoxication in deciding whether the defendant possessed the required specific intent at the time of the commission of the alleged crime.” The instruction advises the jury of the specific offenses and allegations to which the exception to the general rule applied, and, “If the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that defendant had the required specific intent. [¶] If from all the evidence you have a reasonable doubt whether a defendant had the required specific intent, you must find that defendant did not have that specific intent.” Thus, when read as a whole, the instructions did not “ ‘withh[o]ld from the jury the mandatory duty to consider all of the evidence as it related to [defendants’] mental capacity.’ ” (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) There is no reasonable likelihood the jurors would view the use of the words “should” or “may” as authorizing them to arbitrarily ignore evidence of defendants’ voluntary intoxication on the issue of specific intent crimes as suggested by defendants.
Defendants also argue the intoxication instruction was legally incorrect because it failed to expressly mention the conspiracy theory. According to defendants, “[t]he pointed exclusion of conspiracy (unlike aiding and abetting) seriously skewed these instructions; any juror would take these more specific instructions to mean intoxication was only relevant on aiding and abetting, not conspiracy.” We disagree. “ ‘Intoxication is... relevant only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state.’ [Citation.] An instruction relating intoxication to any mental state is therefore ‘... more like the “pinpoint” instructions’ that ‘are not required to be given sua sponte.’ [Citation.]... [Thus], the court did not have a sua sponte duty to give any instruction on the relevance of intoxication, any more than it had to instruct on the relevance of other evidence. In the absence of instructions, defense counsel could simply argue that defendant did not actually have the necessary mental state due to his intoxication, just as counsel could argue any other inferences from the evidence.” (People v. Castillo (1997) 16 Cal.4th 1009, 1014.) In this case, the jurors were not given a pinpoint instruction advising them to consider evidence of intoxication in determining whether a defendant had the requisite mental state of a conspirator. However, the jury was directed to consider each defendant’s voluntary intoxication in determining whether a defendant had the requisite mental states for the crimes of “First Degree Murder, charged in Counts 1 & 2, or the lesser crimes of Second Degree Murder and Voluntary Manslaughter.” Additionally, the jurors were specifically instructed that liability as a conspirator required that each defendant act “with the specific intent to agree to commit the crime of [m]urder, and with the further specific intent to commit that crime.” Thus, the failure to mention conspiracy in the voluntary intoxication instructions did not preclude the jury’s use of any evidence of intoxication in evaluating whether defendants conspired with each other. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 187 (Letner and Tobin).)
We also reject defendants’ contention that the omission of the conspiracy theory from the intoxication instruction was “quite unfair since conspiracy turned out to be a major theory and intoxication went a long way to rebutting any coherent conspiracy to commit murder here.” Although Cobbs testified both defendants appeared to be intoxicated before the murders, there was no evidence of the amount of alcohol, if any, either defendant had consumed before the murders. Nor was there any evidence from which the jury could reasonably infer defendants’ alleged intoxication “so reduced or impaired” their mental capacity “as to negate the required criminal intent” to convict them of murder in the first degree on a conspiracy theory. (People v. Marshall (1996) 13 Cal.4th 799, 848.) The prosecutor did not argue the jury could not consider voluntary intoxication in determining whether a defendant was a conspirator. Neither defendant actually argued the jury should acquit based on their voluntary intoxication. “For these reasons, any error in the instructions did not preclude the jury’s consideration of defense evidence, nor is it reasonably probable that different instructions would have resulted in a verdict more favorable to defendants.” (Letner and Tobin, supra, 50 Cal.4th at p. 187 .)
E. CALJIC No. 2.21.2
Using language in CALJIC No. 2.21.2, the court instructed the jury, in pertinent part: “You may reject the whole testimony of a witness who willfully has testified falsely to a material point unless, from all the evidence, you believe the probability of truth favors his testimony in other particulars.” Defendants contend the quoted language permitted the jurors to resolve dispositive credibility questions as to impeached prosecution witnesses by a preponderance standard, rather than by proof beyond a reasonable doubt. However, our Supreme Court has repeatedly rejected this specific argument and approved the use of the quoted language in CALJIC No. 2.21.2, finding no constitutional error. (See People v. Whisenhunt (2008) 44 Cal.4th 174, 220-221; People v. Nakahara (2003) 30 Cal.4th 705, 714; People v. Maury (2003) 30 Cal.4th 342, 428-429.) Because we are bound by the Supreme Court’s rulings (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), we do not further address the issue.
F. Definition of “ Due Caution and Circumspection ”
Defendants argue, and the Attorney General agrees, that the court erroneously instructed the jury on the definition of “due caution and circumspection” using language in CALJIC No. 8.46. The phrase “due caution and circumspection” does not appear anywhere else in the instructions, and it is a definition that is given when a jury is instructed concerning involuntary manslaughter (CALJIC No. 8.45), an offense that was not given to the jury in this case. However, defendants have failed to show the erroneous instruction requires reversal.
“Where, as here, the court gives a legally correct, but irrelevant, instruction, the error ‘is usually harmless, having little or no effect “other than to add to the bulk of the charge.” ’ [Citation.]” (People v. Lee (1990) 219 Cal.App.3d 829, 841.) Reversal is required “only if, ‘after an examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred [citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 178, fn. omitted; see § 1259 [appellate review is permitted to the extent an unchallenged instructional error affects a defendants’ “substantial rights”].) Defendants contend the given definition of “due caution and circumspection” was prejudicial because (1) although it was not part of the instructions on accomplice liability, it still refined the definition of “natural and probable” consequences and wrongly suggested substitution of a recklessness/negligence standard for true foreseeability as required under the natural and probable consequences doctrine, and (2) the instruction’s placement in the section defining crimes influenced the jury’s determination on accident, implied malice, and unreasonable self-defense. However, “if the instructions were susceptible of the interpretation[s] defendant[s] now assert[], counsel likely would have objected at trial on this basis.” (Young, supra, 34 Cal.4th at p. 1203.) Because the trial court included a definition of a “natural and probable consequence” in the accomplice liability instructions, it is highly unlikely the jury used the definition of a “natural and probable result” that was given in conjunction with the inapplicable definition of the phrase “due caution and circumspection.” “The very fact which makes the instruction... erroneous-absence of any [reference] to support it-suggests that the jury ignored this dim will-o’-the-wisp and passed on to the tangible issues in the case.” (Solgaard v. Guy F. Atkinson Co, (1971) 6 Cal.3d 361, 371.) It is not reasonably probable a result more favorable to defendants would have occurred in the absence of the challenged instruction. (Watson, supra, 46 Cal.2d at p. 836.)
VII. Cumulative Effect of Purported Errors
We reject any contention that cumulative error requires reversal. Even if some improprieties occurred, any errors were harmless, considered individually or collectively, and did not deny defendants a fair trial or reliable verdicts.
VIII. Sentencing Issues Raised by Thompson
Although “[j]oinder may be broadly permitted (Cal. Rules of Court, rule 8.200(a)(5), ” “each appellant has the burden of demonstrating error and prejudice [citations].” (Nero, supra, 181 Cal.App.4th at p. 510, fn. 11.) Coleman does not cite any pertinent portions of the record or present any arguments indicating he is entitled to the same relief requested by Thompson. Accordingly, his reliance solely on Thompson’s arguments regarding sentencing issues is insufficient to satisfy his burden on appeal, and we will consider the sentencing issues only as to Thompson. (See ibid,)
A. Consecutive Term for Possession of Firearm By A Felon
Thompson argues the trial court erred in imposing a consecutive term of 25 years to life for his conviction of possessing a firearm by a felon because his possession of the firearm was incidental to his use of the firearm during the murders. He argues the court should have stayed the sentence pursuant to section 654. We disagree.
Section 654 bars multiple punishment for offenses committed in one course of conduct when those offenses arise from a single intent and objective on the defendant’s part. (Neal v. State of California (1960) 55 Cal.2d 11, 18-21; People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) However, “[w]here a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he may be punished for more than one crime even though the violations share common acts or are parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Blake (1998) 68 Cal.App.4th 509, 512 (Blake).) The applicability of section 654 is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) By imposing consecutive terms, the court impliedly found Thompson “harbored a separate intent and objective for each offense.” (Blake, supra, 68 Cal.App.4th at p. 512.) The court’s finding will not be reversed on appeal if there is any substantial evidence to support it. (Ibid,)
“ ‘Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms... constitutes a divisible transaction from the offense in which [a defendant] employs the weapon depends upon the facts and evidence of each individual case.’ ” (People v. Bradford (1976) 17 Cal.3d 8, 22, quoting People v. Venegas (1970) 10 Cal.App.3d 814, 821.) “[M]ultiple punishment is improper where the evidence ‘demonstrates at most that fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense....’ [Citation.]” (Jones, supra, 103 Cal.App.4th at p. 1144; see People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412 (Ratcliff),) Alternatively, “section 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm.” (Jones, supra, 103 Cal.App.4th at p. 1145.)
Thompson argues “there is no fair basis here for an implied finding [he] possessed the gun separate from [the murder] offenses.” We disagree. “A violation of section 12021, subdivision (a) is a relatively simple crime to commit: an ex-felon who owns, possesses, or has custody or control of a firearm commits a felony. Implicitly, the crime is committed the instant the felon in any way has a firearm within his control, ” (Ratcliff, supra, 223 Cal.App.3d at p. 1410, fn. omitted.) “Commission of a crime under section 12021 is complete once the intent to possess is perfected by possession. What the ex-felon does with the weapon later is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon. [Citations.]” (Ratcliff, supra, 223 Cal.App.3d at p. 1414.)
In this case there was no evidence “ ‘fortuitous circumstances put the firearm in [Thompson’s] hand only at the instant of committing another offense....’ ” (Jones, supra, 103 Cal.App.4th at p. 1144.) Based upon the circumstances leading to the gunfight and Thompson’s conduct of pulling a firearm from his pocket, the trial court could reasonably find that Thompson committed the crime of possessing a firearm by a felon by possessing it before the shooting. (Id. at p. 1147.) Thompson then committed the separate crimes of first degree murder, either as a principal, aider and abettor, or conspirator, when he shot his gun first at Wallace and then at Hodge. Because substantial evidence supports the court’s implicit finding that section 654 did not apply, the imposition of a consecutive term of 25 years to life for the conviction for possession of a firearm by a felon must be upheld.
B. Consecutive Unstayed Terms of Imprisonment and Victim Restitution Order
Thompson challenges the court’s imposition of (a) consecutive unstayed terms of imprisonment, (b) more than one unstayed term under section 654, and (c) the victim restitution order. He argues these sentencing determinations were improper because there were no facts admitted by him or found by a jury beyond a reasonable doubt to support them as required pursuant to Cunningham v. California (2007) 549 U.S. 270 (Cunningham) “and its predecessors.” We see no reason to address this contention. Thompson recognizes his specific argument is contrary to both federal and state cases which we are bound to follow (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455) or otherwise find persuasive. (See Oregon v. Ice (2009) __ U.S. __ [129 S.Ct. 711, 717, 719] [sentencing determination of consecutive or concurrent terms not implicated by constitutional ruling enunciated in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)]; People v. Black (2007) 41 Cal.4th 799, 820-823 [discretionary sentencing choice of consecutive or concurrent terms not implicated by constitutional rulings enunciated in Cunningham, supra, 549 U.S. 270; Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Apprendi, supra, 530 U.S. 466]; People v. Chappelone (2010) 183 Cal.App.4th 1159, 1183-1184 [court order directing payment of victim restitution not implicated by constitutional rulings enunciated in Cunningham, supra, 549 U.S. 270, and its predecessors, including United States v. Booker (2005) 543 U.S. 220 (Booker), Blakely, supra, 542 U.S. 296, Apprendi, supra, 530 U.S. 466]; People v. Millard (2009) 175 Cal.App.4th 7, 35-36 [court order directing payment of victim restitution not implicated by constitutional rulings enunciated in Cunningham, supra, 549 U.S. 270, Booker, supra, 543 U.S. 220, Blakely, supra, 542 U.S. 296].)
C. Section 667.5, Subdivision (b), Sentence Enhancement
Both Thompson and the Attorney General agree, and we concur, that the court erred in imposing and then staying a consecutive term of one year for a prior prison term sentence enhancement pursuant to section 667.5, subdivision (b). The record shows Thompson did not serve a separate prior prison term for his 2002 conviction that was the basis for the enhancement. We therefore modify the judgment against Thompson accordingly.
D. Parole Revocation Restitution Fine Pursuant to Section 1202.45
At Thompson’s sentencing, the trial court imposed a section 1202.45 parole revocation restitution fine of $1,000, and then “suspended” it “because there will be no parole.” The court’s written order imposed the fine and then suspended it unless “parole is revoked.” Thompson now argues, and we agree, that because his sentence did not include a period of parole, the trial court erred in imposing and then suspending the parole revocation restitution fine. (People v. McWhorter (2009) 47 Cal.4th 318, 380; People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) The Attorney General does not object to Thompson’s request that the parole revocation restitution fine be stricken. We therefore modify the judgment against Thompson accordingly.
DISPOSITION
The judgment against Coleman is affirmed. The judgment against Thompson is modified by striking (1) the prior prison term sentence enhancement imposed pursuant to section 667.5, subdivision (b), and (2) the parole revocation restitution fine imposed pursuant to section 1202.45. The trial court is directed to prepare an amended abstract of judgment to reflect the modifications, and to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. Except as so modified, the judgment against Thompson is affirmed. The victim restitution orders (one as to each defendant) are affirmed.
We concur: Pollak, J., Siggins, J.