People v. Williams

Full title: THE PEOPLE, Plaintiff and Respondent, v. JOE WILLIAMS et al., Defendants…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Date published: Jan 13, 2017

C069659 (Cal. Ct. App. Jan. 13, 2017)

Opinion

C069659

01-13-2017

THE PEOPLE, Plaintiff and Respondent, v. JOE WILLIAMS et al., Defendants and Appellants.

MURRAY, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 10F01611, 10F01828)

Defendants Joe Elouis Williams and Isaiah Dominic Hale appeal following convictions for attempted deliberate and premeditated murder (Pen. Code, §§ 187, subd. (a), 664)¹ with firearm enhancements (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (b), (c), (d)). Williams was sentenced to seven years to life plus one year and Hale was sentenced to 39 years to life.

1 Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.

Defendant Hale, who admits he fired the gun, contends: (1) the trial court misinstructed the jury on initial aggressor/mutual combat related to his claim of self-defense; (2) there is insufficient evidence that Hale's prior conviction was a serious felony within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12), because the evidence did not show necessary elements -- that Hale personally inflicted the injuries sustained by the victim in the prior conviction and that the victim was not an accomplice; and (3) the trial court misinstructed the jury regarding the prior conviction by failing to require that the jury determine Hale personally inflicted the victim's injuries and that the victim was not an accomplice and thus violated his Sixth Amendment right to a jury trial.

Defendant Williams contends: (1) the trial court erred in denying his motion to sever his trial from Hale's trial; (2) the evidence is insufficient to find that he aided and abetted an attempted murder, or did so in a willful, deliberate, and premeditated manner; and (3) the trial court failed to instruct the jury about the need for corroboration of accomplice testimony. In a supplemental brief, Williams points out the abstract of judgment overstates the amount of a restitution fine orally imposed by the trial court.

We modify Williams's judgment to reflect the amount of the restitution fine orally stated by the judge. We otherwise affirm both judgments.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges

Count one charged only Williams with firing at an inhabited dwelling (§ 246) on March 7, 2010.

Count two charged both defendants with the March 10, 2010, attempted murder (§§ 664, 187, subd. (a)) of Julian Williams, who was defendant Joe Williams's cousin. It was further alleged that the attempted murder was committed willfully, deliberately, and with premeditation. In connection with count two, it was further alleged that Hale personally fired a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d)) and defendant Williams was armed with a firearm within the meaning of section 12022, subdivision (a)(1). As for Hale, the information alleged he had a prior serious felony conviction in 2009 for battery with serious bodily injury (§§ 243, subd. (d), 667, subds. (b)-(i), 1170.12).

The Prosecution Case

At trial, the victim testified that his cousin defendant Williams, also known as "Moke," phoned him in mid-February 2010, and asked him to come get an SKS rifle that defendant Williams wanted to get out of his home. Williams and his girlfriend were fighting, and he did not want the gun in the house in case the police were summoned for a domestic disturbance. The victim had the SKS in his vehicle on February 28, 2010, when he was stopped by police who said he and his vehicle fit the description of someone reported to have threatened to shoot someone with an SKS.² The police searched the vehicle, found the SKS, confiscated it, and arrested the victim for gun possession. The victim initially lied to police, saying he bought the SKS from someone on the street, but later told them he got it from his cousin, Moke. The victim bailed himself out of jail.

2 There was no evidence that the victim had threatened anyone with the gun, and he was not arrested or charged for such an offense.

The victim testified it was his "understanding" that someone told Williams that the victim said he tried to sell the SKS.

Williams phoned the victim, demanded that the victim pay some amount ($300 or $350) for the SKS, or he would shoot the victim in his face. A voice mail message left on the victim's cell phone, by a voice identified as Williams's voice, told the victim to give him the money or "it's a wrap."

On March 7, 2010, around 10:00 p.m., the victim was home with his pregnant fiancée, Zinha Sylvester, when someone fired a gun at the house two or three times. The victim called defendant Williams, who denied having done it. A neighbor called the police.

On March 10, 2010, after 5:00 p.m., the victim and Sylvester were at a shopping center containing various small business establishments. As they emerged from a nail salon, they encountered Williams on the sidewalk. Williams got "in [the victim's] face" and demanded his money. The victim said he would give Williams the money but could not at that time because he just paid $6,000 to get out of jail. The two yelled at each other. Williams said something about a physical fight and may have made a move pretending he was going to throw a punch. But instead, Williams turned and walked away, waving his hands in the air.

The victim told the police that, as Williams was walking away, Williams said, "[C]ome to the street, nigga, I'm gonna shoot your ass." At trial, the victim testified he did not remember saying that to the police. The victim initially testified that his argument with Williams stopped when Williams walked away. On cross-examination by Hale's counsel, the victim testified that he did not remember telling the police Williams said something like, " 'come to the street, nigga, I'm going to shoot your ass' " as he walked away, but "I remember now that little light bulb, like I said, in my head, he did say something. Something close to what you said walking to the parking lot." But then, on cross-examination by Williams's counsel, the victim testified he did not remember whether or not Williams said those words.³

3 On further questioning by Hale's counsel, the victim said he was still afraid Williams would kill him for testifying.

The victim was heading toward his vehicle when he became aware of Hale's presence. The victim testified Hale, who was standing in the parking lot, said something like "is that the nigga that got my gun took?" and then Hale said something to the victim like, " 'Nigga, you got my gun took. You think we playing.' " The victim had no time to answer before defendant Hale turned away, turned back, and fired a gun at the victim several times, shooting the victim from a distance of about five or six feet. The victim had no time to duck or react. He was certain it was Hale who shot him. Williams was not near Hale when Hale fired the gun. The victim remembered meeting Hale only once before the shooting. He had no history with Hale.

The victim denied acting as if he had a gun in his waistband before Hale fired the gun. He had not made any aggressive move. He was afraid and did not know what his cousin might do.⁴ At one point during cross-examination, the victim said he himself "maybe walked towards them; probably, yes."

4 Defendant Williams was one to three inches taller and was heavier than the victim.

Sylvester testified consistent with the victim's testimony. Additionally, she testified that it seemed like Williams was waiting for them when she came out of the nail salon. When Williams confronted the victim about the firearm and the money, Williams seemed "very irritated." She told the police that prior to the shooting, Williams said, " 'That's a nigga who got my gun took.' "

The shooting was captured by the shopping center's surveillance cameras, and the prosecutor played a video for the jury, People's Exhibit 35. Hale's defense played its own selection of video surveillance, Exhibit H-4, obtained from the police who obtained the video from the shopping center manager. We have reviewed the videos. On both videos, the view of the shooting is partially obstructed by a blue pickup truck depicted in the center of the video frame, facing the storefront.

The video shows the following. At 18:05:31 on the time stamp, Williams and Hale walk from the right side of the frame toward the store on the opposite side of the truck. Williams was walking in front of Hale.⁵ At 18:05:44, Williams walked into a store. Hale walked up behind Williams to the door, but did not enter. At 18:05:49, just as Hale got to the door of the store, Williams walked out of the store, crossed in front of Hale and then started to walk down the covered sidewalk in front of the stores toward the lower left corner of the frame, pausing to look back at Hale momentarily at 18:05:55. Hale stood in front of the store momentarily looking around. Then he approached a girl. At 18:06:17, Hale began to walk down the storefront sidewalk in the direction Williams had walked and disappeared momentarily from the frame in the lower left corner.

5 The people are identified based on the testimony of the victim and Hale, during which they were both shown the video.

At 18:06:48-51, Hale emerged back into the frame from the lower left corner. Williams came back into the picture from the same direction at 18:06:58. Williams, followed by Hale, walked toward the blue pickup. At 18:07:03, Williams walked to the driver's side rear of the pickup, while Hale walked to the front of the driver's side. Around this time the victim, wearing light colored clothes, walked on the far left side of the frame moving along the storefront sidewalk with Sylvester and a third person. At 18:07:03, Hale, who was near the front driver's side tire of the pickup, turned to face the victim and took several steps backward toward the rear of the truck. At 18:07:06, as Hale passed the driver's side door, he turned and walked toward the rear of the truck with his back to the victim. Williams in the meantime walked toward and past the back of the truck, looking in the direction of the victim and gesturing with his left hand in a beckoning motion. The victim testified that this is the point at which Williams told the victim something like step out into the street so he could shoot the victim.

At 18:07:10-12, the victim walked by the front of the truck to the front passenger side. In the meantime, Hale walked around the rear passenger side of the truck. At 18:07:12, Hale appears to be looking in Williams's direction while Williams gestures with his left hand in the direction of the victim. At 18:07:12, Williams momentarily stopped walking, turned, and faced the direction where Hale was while Hale rushed toward the victim, who was at that time stepping off of the curb toward Hale. At 18:07:13, the victim turned to his right and fell to the ground. Sylvester and the other people then ran for cover. At this point, Hale's white hat can be seen on the passenger side of the pickup, next to the front passenger door. At 18:07:15, Williams, followed by Hale, began to run to the right out of the video frame. The pickup obstructed the view of the lower part of the victim's arms and his hands as well as the shooting itself.

The victim sustained gunshot wounds to his arm, leg, and penis. He was in the hospital for approximately two weeks. He had to undergo several surgeries to replace his shattered elbow with titanium plates and screws.

The victim said he had not wanted to testify, because he did not want to be labeled a snitch. He denied that he was attempting to minimize his cousin's involvement in the shooting by his testimony. He said he initially reported that his cousin Williams had shot him, either alone or with Hale because the victim thought he was going to die and wanted both Williams and Hale to go to jail.

Days after the shooting, police impounded and searched a vehicle Hale had been driving. The search revealed written rap music lyrics in the glove box. A police detective testified as an expert on the meaning of rap lyrics. She opined Hale, whose nickname was "Cash," wrote the lyrics which contained a phrase, " 'you can call me cash.' " She further opined the lyrics described the shooting of the victim.

In the car, the police found gunshot residue on the driver's headrest, the steering wheel and the right front passenger area. Additionally, there were fingerprints of various persons in the car, including Hale but not Williams. The car apparently belonged to a woman who had some relationship with Hale.

The Defense Case

Williams did not testify or call any witnesses.

Hale called as witnesses two medical social workers who testified that the victim, while in the hospital, said he was shot by his cousin.

A police officer testified about confiscating the gun on February 28, 2010.

Another officer testified he responded to a report of the shooting at the shopping center and spoke with Sylvester at the scene. She said the victim and his cousin Williams were arguing, Williams was asking about his money, a black male with dreads walked up, and then she heard several gunshots but was not sure who actually shot the victim. Williams had previously threatened the victim and she believed he had recently fired a gun at their home.

Another police officer testified he went to the hospital and spoke separately with the victim and Sylvester. The victim said he did not know the name of the person who shot him. Sylvester said Joe Williams had been threatening to shoot the victim over the confiscated gun.

Hale called a person who was an electrician and a rapper/engineer/promoter, who had a rap music group. He testified rap music is based on a lot of things that are not true. On cross-examination by the prosecutor, he acknowledged rappers sometimes rap about their own life experiences. He did not know if the rap lyrics in evidence were about true events, and he did not know Hale.

Hale testified. He admitted that in 2009, he was convicted of a felony violation of section 243, subdivision (d), battery with serious bodily injury in a case of domestic violence against the mother of his child.

Hale said he and a friend wrote the rap lyrics a month before the shooting and the lyrics had nothing to do with the shooting. Hale said he bought a gun because his studio got robbed and thereafter, he always carried the gun. Hale said he did not remember ever meeting the victim before the shooting.

Hale said that on the day of the shooting, he and his friend Williams and a third person went to the shopping center to buy liquor and cigarettes before going to visit Hale's aunt.

Hale admitted he initially told the police a different story. He told the police that defendant Williams came to "the apartment" where Hale was located; that Williams said he had just "got into it" with his cousin at the liquor store and needed a "thang," (i.e., a gun); that Hale and Williams and a third person went to the shopping center with a gun; and that the third person shot the victim. At trial, Hale claimed none of this happened.

Hale testified that Williams went into the liquor store while Hale tried to talk to a girl outside. Hale's younger cousin, who rode over with them, stood by Hale's car while Hale and Williams went toward the store.⁶ Williams went inside while Hale stayed outside, trying to talk to the girl. Hale saw Williams come out of the liquor store, empty-handed, and walked to the right. Then he noticed that Williams was arguing with someone, but it did not seem heated in the beginning, so Hale kept trying to talk to the girl. Williams was "flinchin' " (i.e., making an aggressive move) at the victim. Hale then walked toward Williams to see what was happening because he was not going to let anything happen to Williams. He said if the person Williams was arguing with took a swing at Williams "we were gonna jump him." As Hale got closer, he heard Williams asking for his money, and the victim stood behind his girlfriend and laughed, saying he gave it to the bondsman. When the girlfriend stepped away, it got heated and Williams said he was going to beat the victim's "ass." The victim said that Williams would have to strike the first blow.

6 When asked on cross-examination about his cousin's name, Hale said his name is "Frisco." He said he did not know Frisco's real name and Frisco is his "play cousin," not his real cousin.

Hale testified that Williams walked away, saying, "F this nigger." As Williams walked away, he waived his hands and told the victim to come out into the street. According to Hale, up until that point, the confrontation had been between the victim and Williams. When Williams said, "[F]uck this nigger," the victim looked at Hale and said, "[T]his bitch ass nigger." Hale testified, he turned to look at the victim. "I look at him like what I got to do with anything . . . ?" Hale told the victim, "You a bitch ass nigger."

Hale testified that as Williams continued to walk off, the victim and Williams were yelling at each other. Hale said he was not paying attention to what the victim was saying to Williams until he heard the victim say, "I'm not worried about it I stay strapped," which Hale explained means the victim had a gun. Hale said the victim made this comment as Williams was calling the victim out into the street. According to Hale, at the time the victim made that comment, he was coming around the front of the truck and was walking towards Williams. Hale said that he was "like in the front of the blue truck" walking across "the island" and Williams was at the back of the truck when the victim made the comment about being strapped. The victim was still talking, so Hale walked around the back of the truck and was walking back towards the victim to better hear what the victim was saying. The victim stepped off of the curb and reached under his shirt. Hale testified that at that point he pulled out his gun and shot the victim because he thought the victim was going to shoot him or Williams. Hale testified he was scared and he shot out of fear. He pulled out his gun, closed his eyes, and fired the gun at the victim's legs. Hale testified he aimed low because he did not want to kill the victim but only to injure him so that he and his friend could get away without getting hurt. Hale testified he realized the victim did not have a gun when the victim hit the ground and pulled "his hands out of his pants."

On cross-examination, the prosecutor asked Hale to describe what was happening at several points on the surveillance video. Hale said the point at which the victim called him a "bitch ass nigga" was at 18:07:03 when Hale was near the front of the blue pickup and turned to face the victim. Hale said he immediately returned the insult. Hale testified that the point at which the victim indicated he was "strapped" was at 18:07:08 when Hale was near the back of the cab of the pickup. The victim was at the front of the pickup at that time and Williams was calling the victim out.

Hale denied approaching the victim to shoot him after Hale came around the rear end of the truck. Hale testified, "I was tryin' to finish hearin' what he was sayin' " as the victim was walking towards him and Williams. Unlike on direct examination when he said he realized the victim did not have a gun when he fell and took his hands out of his pants, on cross-examination Hale said he opened his eyes after he stopped shooting and realized the victim did not have a gun when he saw the victim take his hand out of his "shirt."

Hale said he initially told police he was not the shooter because he "didn't want to go to jail for life." During the interview, he began to feel guilty about hurting the victim and told police the truth that he had shot the victim.

Verdicts and Sentencing

The jury found Williams guilty of attempted murder and found true the allegations that Williams (1) committed the attempted murder willfully, deliberately, and with premeditation (§ 664, subd. (a)), and (2) was armed with a firearm within the meaning of section 12022, subdivision (a)(1). The court granted the prosecutor's motion to dismiss count one, shooting at an inhabited dwelling, after the jury was unable to reach a verdict.

The jury found Hale guilty of attempted murder and found true the allegations that Hale: (1) committed the attempted murder willfully, deliberately, and with premeditation (§ 664, subd. (a)); (2) personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)); (3) personally and intentionally discharged the firearm (§ 12022.53, subd. (c)); (4) caused great bodily injury by his personal and intentional discharge of the gun (§ 12022.53, subd. (d)); and (5) sustained a prior strike conviction in 2009 for battery with serious bodily injury (§§ 243, subd. (d), 667, subds. (b)-(i), 1170.12).

The court sentenced Williams to seven years to life for attempted murder, plus one consecutive year for the firearm enhancement.

The trial court subsequently sentenced Hale to an aggregate term of 39 years to life calculated as follows: seven years to life, doubled to 14 years to life due to his strike prior conviction, plus a consecutive indeterminate term of 25 years to life for the firearm enhancements.

DISCUSSION

I. Hale's Appeal

A. Initial Aggressor/Mutual Combat Instruction

Hale argues the trial court misinstructed the jury on self-defense and thereby violated his state and federal constitutional rights to due process and a fair jury trial. Williams in his reply brief joins in the argument, noting that since his liability is as an aider and abettor, Hale's instructional error argument concerning self-defense is applicable to him as well. We conclude Hale's argument lacks merit.

Hale's theory of the case, based on his own testimony, was that he shot the victim in self-defense during a spontaneous argument between the victim and Williams, into which Hale injected himself to support Williams, but which the victim escalated into a deadly fight by saying he "stay[s] strapped," and then making a "reachin' " motion, which Hale said he interpreted as a move to pull out a gun. Hale claimed he was not trying to kill the victim but only "shoot him so we [Hale and defendant Williams] can get away."

The trial court instructed the jury on self-defense and imperfect self-defense. Using CALCRIM No. 505 concerning self-defense, the trial court told the jury: "A defendant is not required to retreat. He is entitled to stand his ground and defend himself and, if reasonably necessary, to pursue an assailant until the danger of great bodily injury has passed. This is so even if safety could have been achieved by retreating."

Using CALCRIM No. 3471, the trial court also instructed on initial aggressor/mutual combat as follows: "A person who engages in mutual combat or who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] AND [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. [¶] However, if defendant Isaiah Hale used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting, communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting." (Italics added.)

The italicized text is an optional bracketed paragraph in CALCRIM No. 3471. It is the portion of the instruction at issue here. Hale belatedly complains the trial court should have added the words "in safety" to the bracketed language, so that it would read if Hale "could not withdraw in safety from the fight" after his opponent used deadly force, then Hale could use deadly force. He argues, "There was never any real dispute as to whether Mr. Hale could have retreated. He could have. The only real question was whether he could do so safely and -- if not -- whether he was nevertheless entitled to rely on self-defense." Hale claims the trial court "removed from the jury's consideration" whether he could have withdrawn in safety.

We agree with the People that Hale forfeited this argument by failing to object in the trial court. A party may not complain on appeal that a jury instruction correct in law and responsive to the evidence was too general or too incomplete unless the party has requested appropriate clarifying or amplifying language in the trial court. (People v. Lang (1989) 49 Cal.3d 991, 1024.) Hale argues there was no forfeiture because his contention is that the instruction given was incorrect, and such contentions may be raised for the first time on appeal under section 1259. Hale further argues that, if the contention was forfeited, then his trial counsel rendered ineffective assistance of counsel by failing to object in the trial court.

Even if not forfeited, the contention fails on its merits because the instruction does not use the word "withdraw" in a vacuum but rather in the context of withdrawing from a "sudden and deadly" escalation of the fight by the opponent. The California Supreme Court has used the term "withdraw" in this context interchangeably with "retreat in safety."

Specifically, in People v. Hecker (1895) 109 Cal. 451 (Hecker), the Supreme Court said the defendant was entitled to an instruction justifying the killing if the defendant "was put in such sudden jeopardy by the acts of the deceased that [the defendant] could not withdraw . . . ." (Id. at p. 461, superseded by statute on other grounds as stated in People v. Hardin (2000) 85 Cal.App.4th 625, 633, italics added.) Later in the opinion, the court explained the same concept as follows: "[i]f . . . the counter assault [by the deceased] be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying, forthwith, in self-defense." (Hecker, at p. 464, italics added.) Based on our Supreme Court's usage of the two terms interchangeably, we reject Hale's contention the instruction on self-defense was wrong.

Hale cites People v. Quach (2004) 116 Cal.App.4th 294 (Quach), which reversed because the trial court failed to provide any instruction on how a defendant could respond if the opponent in mutual combat responds to a simple assault by using deadly force. (Id. at p. 303.) The Quach court observed that the trial court provided no instructions regarding "the rule that, 'Where the original aggressor is not guilty of a deadly attack, but of a simple assault or trespass, the victim has no right to use deadly or other excessive force. . . . If the victim uses such force, the aggressor's right of self-defense arises. . . .' [citation], or its corollary, 'If, however, the counter assault be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying, forthwith, in self-defense.' " (Id. at pp. 301-302, citing Hecker, supra, 109 Cal. at pp. 463-464, italics added.) The Quach court went on to recognize instructional language that would address the situation where an opponent in mutual combat involving simple assault escalates the assault by responding with deadly force. First, it noted language approved in People v. Sawyer (1967) 256 Cal.App.2d 66 (Sawyer), a case from this court. The pertinent language in the Sawyer instruction read: " 'unless the attack is so sudden and perilous that he cannot withdraw' " (Sawyer, at p. 75, fn. 2),⁷ language that is similar to the language used in the CALCRIM instruction here. Hale cites the other instruction noted in Quach, an instruction that came from People v. Gleghorn (1987) 193 Cal.App.3d 196. That instruction read: " '[W]here the counter assault is so sudden and perilous that no opportunity be given to decline further to fight and he cannot retreat with safety he is justified in slaying in self-defense.' " (Gleghorn, at p. 201, italics added.) It is the Gleghorn instruction Hale contends should have been given here. But in making that argument, he fails to note that the Quach court reversed because there was no "instruction such as the one approved in" Gleghorn and that the court also identified the instruction in Sawyer as such an instruction. (Quach, at pp. 302-303, italics added.) Given the Quach court's recognition of the instruction in Sawyer, we do not read Quach as requiring any specific language. Indeed, it seems clear from its reference to the Sawyer instruction that had that instruction been given by the trial court in Quach, the court of appeal would not have found error. Our view of this issue explains why the CALCRIM Committee included language in the optional bracketed paragraph in CALCRIM No. 3471 that more approximates the instruction in Sawyer and leaves out the redundant reference to " 'with safety' " from the Gleghorn instruction.⁸

7 The entire instruction approved by the court in Sawyer reads as follows: " 'Where a person seeks or induces a quarrel which leads to the necessity in his own defense of using force against his adversary, the right to stand his ground and thus defend himself is not immediately available to him, but, instead he first must decline to carry on the affray, must honestly endeavor to escape from it, and must fairly and clearly inform his adversary of his desire for peace and of his abandonment of the contest unless the attack is so sudden and perilous that he cannot withdraw. Only when he has done so will the law justify him in thereafter standing his ground and using force upon his antagonist.' " (Sawyer, supra, 256 Cal.App.2d at p. 75, fn. 2.)

8 We also note that the CALCRIM No. Committee cites Hecker, Quach, and Sawyer in the bench notes, but not Gleghorn. (CALCRIM No. 3471, Bench Notes.)

Here, in contrast to Quach where there was no instruction given such as the ones approved in Sawyer and Gleghorn, the trial court did instruct the jury on the principle that no retreat was necessary if the victim escalated the attack to "such sudden and deadly force that the defendant could not withdraw." Although the instruction did not use the words "with safety," as we have noted, no such talismanic words were needed. "[W]ithdraw from the fight [that had suddenly turned deadly]" and "retreat in safety" are the same thing. If the person is assaulted with sudden and deadly force while attempting to withdraw, then there was no actual withdrawal from the fight. The person would still be in the fight. In other words, withdrawing from the fight means the person has escaped from the fight. By definition, that means the person is safe.

Moreover, even assuming for the sake of argument that the instruction was ambiguous, it is not reasonably likely the jurors here would have applied the instruction improperly. (People v. Williams (2013) 56 Cal.4th 630, 688-689, citing Estelle v. McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 399] [in reviewing an ambiguous instruction, courts inquire whether there is a reasonable likelihood the jury applied the instruction in a way that violates the Constitution].) Hale argues Quach, supra, 116 Cal.App.4th at page 303, requires application of the harmless error test of Chapman v. State of California (1967) 386 U.S. 18 . But Quach said this standard applied to erroneous instructions. (Quach, at p. 303.) Here, the issue would be an ambiguous instruction, not an erroneous instruction. In any event, the error is harmless under any standard.

We note that the prosecutor did not misuse the instruction in closing argument to the jury or exacerbate the purported ambiguity. She argued that Hale was the initial aggressor, and the victim was not a mutual combatant. She highlighted Hale's testimony that he was not scared when the victim said he had a gun, and therefore he kept walking toward the victim, assertedly in order to better hear what the victim was saying. In support of her theory that Hale acted with deliberation rather than in self-defense, the prosecutor argued, "Like really? What would [the victim] be saying that was so important at that point in time after he just said I stay strapped according to [Hale] that you're gonna run up on that person. That's ridiculous." The prosecutor did not argue the law required that Hale try to escape regardless of whether it was safe to do so before he could respond to deadly force with deadly force.

Furthermore, it is not reasonably likely the jurors would have thought a person had to withdraw at the risk of being killed or injured when the purpose of self-defense is to avoid being killed or injured. Contrary to Hale's argument, there was no federal constitutional error here precluding or limiting the jury from full consideration of Hale's theory of the case.⁹

9 Hale contends the length of deliberations, about 19 hours, shows this was a close case. (E.g., People v. Cardenas (1982) 31 Cal.3d 897, 907.) We disagree. The jury deliberated for one hour on the first day of deliberations, returned the next day and deliberated from 9:00 a.m. to 4:30 p.m. (during which the jury asked a question about aiding and abetting culpability for discharge of the firearm). The third day, the jury deliberated from 9:00 a.m. to 4:30 p.m. The fourth day, the jury deliberated from 9:00 a.m. until 4:15 p.m., when they sent the court a note that they had reached a verdict on everything except one count for one person. The jury did not request additional instructions on self-defense during deliberations. The following morning, the trial court entered the verdicts on count two and declared a mistrial as to count one, shooting at an inhabited dwelling, alleged against Williams only. A little more than three days of deliberations does not prove a close case, because the case involved two incidents and two defendants with multiple issues, and the jury was unable to reach a verdict on the count related to the first incident involving the drive-by shooting at the victim's home. The length of deliberations could as easily be reconciled with the jury's conscientious performance of its civic duty, rather than a close case on the attempted murder charge. (People v. Houston (2005) 130 Cal.App.4th 279, 301.)

Finally, any instructional error here is harmless by any standard given the lack of evidence of mutual combat or that Hale started a fight. Hale did not physically fight the victim. The victim did testify that Hale asked if the victim was the person who got his gun " 'took' " or something to that effect and then said something to the victim like, " 'Nigga, you got my gun took. You think we playing,' " before Hale began shooting. According to Hale's own testimony, he never fought the victim, there was no physical assault occurring when he circled around the pickup and approached the victim and Hale had not used non-deadly force against the victim. There was only an exchange of words. Hale claimed he pulled out his gun and began shooting because the victim had said he was "strapped" and reached toward his waistband.

As noted, CALCRIM No. 3471, as read to the jury in this case, begins, "A person who engages in mutual combat or who starts a fight . . . ." It goes on to say in the optional bracketed language at issue here, "if defendant Isaiah Hale used only non-deadly force, and the opponent responded with such sudden and deadly force . . . ." Thus, non-deadly assaultive conduct by a defendant is a predicate to the application of the optional bracketed paragraph in CALCRIM No. 3471. That predicate is missing here and consequently, no reasonable jury could have found self-defense or imperfect self-defense based on CALCRIM No. 3471, even if the words "with safety" had been added.¹⁰

10 We have discussed the wording of the initial aggressor/mutual combat instruction here because the instruction was given for the jury to consider, and Hale has argued that the trial court had a sua sponte duty to add language to the instruction and trial counsel was constitutionally ineffective for failing to ask for that language. But we also note that the trial court would not have abused its discretion if it had not given the instruction. The optional bracketed paragraph in the instruction only applies where the defendant has committed a simple assault. This was recently clarified by our high court. In People v. Salazar (2016) 63 Cal.4th 214, the court wrote: "Defendant claims the self-defense instructions were incomplete because they did not include the principle that ' "where [a] counter assault is so sudden and perilous that no opportunity be given to decline further to fight and [the defendant] cannot retreat with safety he is justified in slaying in self-defense." ' [Citations.] [Fn. omitted.] However, as the Gleghorn and Quach courts made clear, this qualification only applies where the defendant commits a simple assault." (Id. at p. 249, italics added.)

We conclude there was no instructional error regarding initial aggressor/mutual combat and, even assuming error, it was harmless under any standard.

B. Nature of the Prior Conviction Alleged as a Strike

1. Hale's Contentions

Hale argues the trial court improperly used his prior battery with serious bodily injury conviction (§ 243, subd. (d))¹¹ as a strike to double his sentence (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).¹² Defendant notes that battery with serious bodily injury is not a strike unless he personally inflicted the injury on a person who was not an accomplice. (§ 1192.7, subd. (c)(8) [" 'serious felony' " includes "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice"].) Hale argues: (1) there was insufficient evidence that he personally inflicted injury¹³ or that the victim was not an accomplice; (2) these two factual questions should have been submitted to the jury and the failure to so instruct violated defendant's Six Amendment right to a jury trial; and (3) double jeopardy precludes retrial of the prior conviction.

11 Section 243, subdivision (d), states, "When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment in the state prison for two, three, or four years."

12 Under section 667, subdivision (e)(1), and section 1170.12, if a defendant has one prior serious or violent felony conviction, as defined in section 667.5 or 1192.7, "that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." (§ 1170.12, subd. (c)(1).)

13 Normally in the context of this type of serious felony, the inquiry is three pronged: "[W]hether the prior conviction involved (1) personal infliction, (2) of great bodily injury, (3) on any person other than an accomplice." (People v. Wilson (2013) 219 Cal.App.4th 500, 511 (Wilson), citing § 1192.8, subd. (a).) Hale provides no argument on appeal that the evidence was insufficient to establish that the injury inflicted was great bodily injury. His focus is on the personal infliction and non-accomplice elements.

We agree that Hale had a constitutional right to a jury determination of the personal infliction and non-accomplice elements related to the strike allegation. However, we conclude that the error was harmless beyond a reasonable doubt.

2. Additional Background

Hale in his trial testimony admitted he was convicted in 2009 of "a felony violation of 243(d)." When asked what kind of case it was, Hale said, "Domestic violence." When asked "to who was that with?" Hale answered, "The mother of my son."

Additionally, the People submitted exhibit 36, minutes and minute orders from the prior conviction, certified by the superior court clerk, which show that on March 13, 2009, before Judge Tochterman in Sacramento County, Hale pleaded nolo contendere to a single count of violating section 243, subdivision (d). On April 8, 2009, Judge Winn granted Hale probation conditioned in part on Hale's participation in a batterer's treatment program "pursuant to Section 273.5(e) [sic: (f)¹⁴] and/or 1203.[0]97(a)(6)."¹⁵ The typewritten order of probation states, "Count 2 as a strike." The minute order of the March 13, 2009, plea before Judge Tochterman bears a handwritten notation, "4/8/09 Judge Winn said Ct 2 as a strike."¹⁶

14 Section 273.5, subdivision (f), provides that probation granted in a domestic violence case is subject to conditions in section 1203.097.

15 Section 1203.097, subdivision (a), states, "If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include . . . [¶] . . . [¶] (6) Successful completion of a batterer's program . . . ." Section 6211, subdivision (d), of the Family Code defines " '[d]omestic violence' " to include abuse perpetrated against a person with whom the perpetrator has had a child.

16 The exhibit does not contain the charging document or a reporter's transcript of the plea or sentencing, and there is no indication that the trial court in the current case had before it any other documents from the court's file of the prior case.

The jury in this case found Hale had a prior conviction in 2009 for battery with serious bodily injury in violation of section 243, subdivision (d). CALCRIM No. 3100, the standard instruction given for prior convictions, was given by the trial court. The court did not tell the jury it needed to determine whether the prosecution had proved the personal infliction and non-accomplice elements beyond a reasonable doubt.

On the day set for sentencing, Hale moved to strike the prior conviction (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497) on various grounds, including that "the facts underlying the strike as indicated in the probation report are minor in the sense that it was a swollen eye and a small laceration . . . ." The probation report for the current case described the incident underlying the 2009 conviction: "During a verbal argument that turned physical, the 18-year-old female victim reported that her boyfriend/defendant punched her in the face causing her to fall to the ground. The victim sustained a swollen eye and a small laceration above her eye. The victim was transported to Mercy San Juan Hospital for further treatment."

The trial court denied the motion to strike the prior conviction. The court acknowledged it had discretion but said, "I think it would be an abuse of my discretion to strike Mr. Hale's [prior conviction] in light of the fact that he was on probation for a serious and violent felony [the 2009 conviction] at the time he committed the instant offense. I would note that the felony conviction was against a female, a person to whom it appears that he was in a dating relationship with [sic]. She did receive a significant injury, and so I will decline to strike Mr. Hale's prior." The trial court thus implicitly found that the nature of the prior conviction qualified as a strike.

3. Applicable Legal Principles

For purposes of three strikes sentencing, the prosecution has the burden to prove beyond a reasonable doubt that alleged prior convictions qualify as strikes. (People v. Miles (2008) 43 Cal.4th 1074, 1082 (Miles).) Where the mere fact of the conviction does not prove the offense was a serious felony, the nature of the conviction may be proved by the defendant's admissions or "otherwise admissible evidence from the entire record of the conviction." (Ibid.) "A court document, prepared contemporaneously with the conviction, as part of the record thereof, by a public officer charged with that duty, and describing the nature of the prior conviction for official purposes, is relevant and admissible on this issue." (Ibid.; see also Evid. Code, § 452.5 [certified copy of official record of conviction is admissible to prove commission of prior conviction or other act, condition, or event recorded by the record].)

"[I]f the prior [offense] was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense." (Miles, supra, 43 Cal.4th at p. 1083.) "In such a case, if the serious felony nature of the prior conviction depends upon the particular conduct that gave rise to the conviction, the record is insufficient to establish that a serious felony conviction occurred." (Ibid.) "On the other hand, the trier of fact may draw reasonable inferences from the record presented. Absent rebuttal evidence, the trier of fact may presume that an official government document, prepared contemporaneously as part of the judgment record and describing the prior conviction, is truthful and accurate. Unless rebutted, such a document, standing alone, is sufficient evidence of the facts it recites about the nature and circumstances of the prior conviction." (Ibid.)

On review for sufficiency of the evidence concerning a prior conviction, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt. (Miles, supra, 43 Cal.4th at p. 1083.)

Section 1170.12 calls for doubling Hale's sentence if he has a prior conviction for a serious or violent felony as defined in sections 667.5 or 1192.7. (§ 1170.12, subds. (b)-(c).) Battery with serious bodily injury under section 243, subdivision (d), is not expressly listed in sections 667.5 or 1192.7 and is therefore not necessarily a strike. (People v. Bueno (2006) 143 Cal.App.4th 1503, 1508 (Bueno).) However, section 1192.7, subdivision (c)(8), provides that " 'serious felony' " includes "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice." The element of serious bodily injury under section 243 is essentially equivalent to the great bodily injury element required for a serious felony sentencing enhancement under sections 667 and 1192.7. (Bueno, at p. 1508, fn. 5; People v. Moore (1992) 10 Cal.App.4th 1868, 1871 (Moore).)

4. Analysis

Hale argues there was insufficient evidence that he personally inflicted injury on a non-accomplice.

However, Hale testified the battery was domestic violence against the mother of his child. This constitutes conclusive evidence that the injured person was not Hale's accomplice in inflicting the battery. The person who was hurt was the victim of the crime for which defendant was convicted, a crime defendant characterized as domestic violence, as opposed to assisted suicide or some crime where the victim could also be an accomplice to the commission of the crime. For example, this is clearly not a case where a confederate was injured by a coperpetrator during the commission of some other felony.

As to personal infliction by Hale, he argues there is no evidence that he personally inflicted the injuries on the mother of his child. We disagree. Even if we do not consider the handwritten and typed notations that the conviction was a "strike" in the record of conviction, the trial court in the 2009 case specifically required that Hale himself participate in a "batterer's treatment program" as a condition of probation. The sentencing record is a record of conviction that may be used to establish the nature of a strike conviction. (See People v. Smith (1988) 206 Cal.App.3d 340, 345 [transcript of the sentencing hearing is a record of conviction]; People v. Colbert (1988) 198 Cal.App.3d 924, 930 [abstract of judgment is a record of conviction admissible to prove a strike allegation].) Based on Hale's testimony and the condition of probation noted in the records admitted to prove the strike, it was reasonable for the trier of fact in the current case, here the trial court, to infer that Hale was the one who inflicted the injuries on the mother of his child in the 2009 case. (Miles, supra, 43 Cal.4th at p. 1083 ["trier of fact may draw reasonable inferences from the record presented"]; People v. Ledbetter (2014) 222 Cal.App.4th 896, 900-901 [same].)

Moreover, we disagree with Hale that a trier of fact could not consider the notations on the 2009 minute orders that indicate Hale pled to a strike. Hale characterizes these notations as being "curious" because one handwritten notation on the March 13, 2009, minutes was dated April 8, 2009. Hale also argues the notations are unreliable hearsay of individual judge's opinions. However, the postdated handwritten notation does not detract from the typewritten statement in the April 2009 probation order that the conviction was a strike. The 2009 court records indicating the battery was a "strike" are admissible to show Hale pleaded no contest to a strike. (Evid. Code, §§ 452.5 [certified copy of official record of conviction is admissible to prove commission of prior conviction or other act, condition, or event recorded by the record], 664 ["[i]t is presumed that official duty has been regularly performed"].) We reject Hale's unsupported assertion that we should reject as meaningless "opinion" the sentencing judge's inclusion in the probation order that the conviction was a strike. As we have noted, "the trier of fact may draw reasonable inferences from the record presented. Absent rebuttal evidence, the trier of fact may presume that an official government document, prepared contemporaneously as part of the judgment record and describing the prior conviction, is truthful and accurate. Unless rebutted, such a document, standing alone, is sufficient evidence of the facts it recites about the nature and circumstances of the prior conviction." (Miles, supra, 43 Cal.4th at p. 1083.)

We conclude substantial evidence supports the conclusion that the 2009 conviction was a serious felony offense and thus a strike within the meaning of the three strikes law. However, as we shall now discuss, the trial court should not have been the trier of fact.

C. Right to Jury Trial on the Strike Allegation ¹⁷

17 The People contend that defendant has forfeited his Sixth Amendment claim by not raising it in the trial court. A challenge to the sufficiency of the evidence, founded in a violation of the Sixth Amendment right to jury trial, is cognizable on appeal without objection to the evidence in the trial court. (People v. McCaw (2016) 1 Cal.App.5th 471, 477, fn. 3 (McCaw), citing People v. Trujillo (2010) 181 Cal.App.4th 1344, 1350, fn. 3 ["an argument that the evidence is insufficient to support a verdict is never waived"].) Moreover, the claim is not forfeited because the trial court was not authorized to impose an enhanced sentence without a jury determination on the factual issues of personal infliction and non-accomplice victim, and " '[i]f a trial court imposes a sentence unauthorized by law, a reviewing court may correct that sentence whenever the error is called to the court's attention.' " (Wilson, supra, 219 Cal.App.4th at p. 518.)

1. Hale's Contention

Arguing that the prior conviction exception to the right to a jury trial in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455], does not apply where an enhanced sentence depends on how a prior conviction was committed, defendant contends he had a Sixth Amendment right to a jury determination as to whether his prior conviction qualified as a strike.

2. Analysis

In People v. McGee (2006) 38 Cal.4th 682, 708-709 (McGee), the California Supreme Court held that a defendant has no federal constitutional right to a jury determination as to whether a prior conviction qualifies as a serious felony. Rather, whether the nature of the prior conviction met the requirements for a strike was a matter to be determined by the trial court, even when the trial court was required to determine facts underlying the conviction. (Ibid. [no Sixth Amendment right to a jury trial regarding whether a Nevada robbery conviction qualified as a strike conviction where the elements of robbery in Nevada were different than in California, but defendant's conduct as reflected in the record of conviction was conduct that would constitute a serious felony under California law].)

The McGee court recognized, however, that the United States Supreme Court was yet to weigh in on this issue. The court wrote: "Unless and until the high court directs otherwise, we shall assume that the precedents from that court and ours support a conclusion that sentencing proceedings such as those conducted below do not violate a defendant's constitutional right to a jury trial. Although we recognize the possibility that the high court may extend the scope of the Apprendi decision . . . , we are reluctant, in the absence of a more definitive ruling on this point by the United States Supreme Court, to overturn the current California statutory provisions and judicial precedent that assign to the trial court the role of examining the record of a prior criminal proceeding to determine whether the ensuing conviction constitutes a qualifying prior conviction under the applicable California sentencing statute. . . . [W]e are not prepared to assume that the high court will interpret the federal constitutional right to a jury trial as requiring a state to assign this function to a jury." (McGee, supra, 38 Cal.4th at p. 686.)

The United States Supreme Court spoke on this matter in Descamps v. United States (2013) ___ U.S. ___ . Following Descamps, several courts of appeal have concluded that criminal defendants have a Sixth Amendment right to have a jury determine whether conduct underlying a prior conviction qualifies the conviction as a serious felony offense. (McCaw, supra, 1 Cal.App.5th at pp. 484-485 [Sixth Amendment right to jury trial was violated where the trial court determined a New York robbery qualified as a California strike based on the New York plea transcript showing that the defendant took property from the robbery victim's person]; People v. Denard (2015) 242 Cal.App.4th 1012, 1030-1031 [right to jury trial was violated by trial court's use of facts in a Florida probable cause affidavit to establish that conduct underlying the prior conviction constituted a strike]; People v. Saez (2015) 237 Cal.App.4th 1177, 1207 ["while Descamps did not explicitly overrule McGee, Descamps's discussion of the Sixth Amendment principles applicable when prior convictions are used to increase criminal sentences is clear and unavoidable"; determination by trial court that the defendant personally used a firearm from the record of conviction violated the defendant's Sixth Amendment right to jury trial].)

Two of the post-Descamps court of appeal cases involved the elements at issue here -- whether the defendant personally inflicted great bodily injury on a non-accomplice in the commission of the prior conviction offense. (People v. Marin (2015) 240 Cal.App.4th 1344, 1363 [prior conviction for vehicular manslaughter; under Descamps, judicial factfinding authorized by McGee, going beyond the elements of the crime to determine whether the record of conviction reveals whether the conviction was based on conduct that would constitute a serious felony under California law violates the Sixth Amendment]; Wilson, supra, 219 Cal.App.4th at p. 516 [prior conviction for vehicular manslaughter while intoxicated; "[a] court may not impose a sentence above the statutory maximum based on disputed facts about prior conduct not admitted by the defendant or implied by the elements of the offense"].)

We agree with the reasoning in these cases. Descamps represents the guidance the California Supreme Court indicated was needed from the high court before it could be said that a judicial determination of whether conduct underlying prior convictions constitutes a serious felony offense violates the Sixth Amendment right to jury trial. (See McGee, supra, 38 Cal.4th at p. 709.) The determination of whether a defendant personally inflicted the victim's injuries and whether the victim was an accomplice must be made by a jury, unless a jury trial is waived by the defendant.

3. Harmless Error

Even though Hale was entitled to a jury determination regarding the personal infliction and non-accomplice elements of the serious felony conviction allegation, we need not reverse if we conclude the error was harmless. " 'Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.' [Citation.] 'Such an error does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt, applying the test set forth in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.' " (Wilson, supra, 219 Cal.App.4th at pp. 518-519, quoting People v. French (2008) 43 Cal.4th 36, 52-53 (French) [" 'The failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no 'evidence that could rationally lead to a contrary finding.' "].)

We conclude beyond a reasonable doubt that a jury would have found Hale's strike allegation true. The evidence supporting findings on the elements at issue is compelling and uncontested. There is no evidence that could rationally lead to a contrary finding. (French, supra, 43 Cal.4th at pp. 52-53.)

As we have noted, serious bodily injury is the equivalent of great bodily injury for strike enhancements. (Bueno, supra, 143 Cal.App.4th at p. 1508, fn. 5; Moore, supra, 10 Cal.App.4th at p. 1871.) Defendant admitted the prior conviction was one of domestic violence involving the mother of his child. For the reasons we have stated, the victim could not have been an accomplice. Defendant was ordered to attend a batterer's treatment program. It can be reasonably inferred from these facts that defendant personally inflicted the injury, even without consideration of the notations on the court documents. However, the notations on the minute orders provide additional evidence that Hale pled to a strike. There can be no contrary rational conclusion.

The error in the trial court determining that Hale's prior conviction is a serious felony offense and thus a strike, is harmless beyond a reasonable doubt.

D. Summary of Hale's Appeal

We conclude Hale fails to show any ground for reversal of the judgment against him.

II. Williams's Appeal

A. Severance

Williams argues the trial court's denial of his motion to sever his trial from Hale's trial constituted a due process violation. We disagree.

1. Legal Standard

As our high court recently observed, "[t]he applicable law is settled. The Legislature has expressed a preference for joint trials; therefore, two or more defendants jointly charged with crimes must be tried together unless the court orders separate trials. (Pen. Code § 1098;¹⁸ [citation].) Joint trials promote efficiency and help avoid inconsistent verdicts. [Citations.] '[I]mportant concerns of public policy are served if a single jury is given a full and fair overview of the defendants' joint conduct and the assertions they make to defend against [the] ensuing charges.' " (People v. Sanchez (2016) 63 Cal.4th 411, 463-464 (Sanchez).)

18 Section 1098 provides: "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials. In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants, and a joint trial as to the others, or may order any number of the defendants to be tried at one trial, and any number of the others at different trials, or may order a separate trial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not prevent their joint trial."

"The court has discretion to order separate trials if there is an incriminating confession, prejudicial association, likely confusion due to evidence on multiple counts, conflicting defenses, or the possibility that a codefendant might provide exonerating testimony at a separate trial." (Sanchez, supra, 63 Cal.4th at p. 464.) However, "severance is not required simply because a joint trial may reduce the likelihood of one or more of the defendants obtaining an acquittal." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 379 (Bryant).) A joint trial is not rendered unfair "[s]imply because the prosecution's case will be stronger if defendants are tried together, or that one defense undermines another." (Ibid.)

"Prejudicial association might exist if 'the characteristics or culpability of one or more defendants [is] such that the jury will find the remaining defendants guilty simply because of their association with a reprehensible person, rather than assessing each defendant's individual guilt of the crimes at issue.' " (Sanchez, supra, 63 Cal.4th at p. 464.)

As for antagonistic defenses, our high court has said that "the possible or even actual presentation of antagonistic defenses by codefendants does not necessarily require severance. . . . '[A] trial court, in denying severance, abuses its discretion only when the conflict between the defendants alone will demonstrate to the jury that they are guilty. If, instead, "there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance." ' " (Bryant, supra, 60 Cal.4th at p. 380.) Our high court has also said, " '[A]ntagonistic defenses do not warrant severance unless the acceptance of one party's defense would preclude acquittal of the other party.' " (People v. Montes (2014) 58 Cal.4th 809, 835; People v. Lewis (2008) 43 Cal.4th 415, 461 (Lewis).) Antagonistic defenses do not require severance even where the defendants are hostile or attempt to cast the blame on each other. (People v. Souza (2012) 54 Cal.4th 90, 111.)

Our review involves two levels of analysis. First, we review the court's denial of severance for abuse of discretion based on the facts as of the time of the ruling and if the trial court abused its discretion, we determine whether it is reasonably probable the defendant would have obtained a more favorable result. If the trial court's ruling denying severance was proper at the time, we look to whether the joint trial caused "gross unfairness that denied due process." (Sanchez, supra, 63 Cal.4th at p. 464; Lewis, supra, 43 Cal.4th at p. 452.)

2. Information upon which the Court Based its Denial of Severance

Williams filed an in limine motion to sever his trial from Hale's trial, arguing: (1) their defenses were inconsistent; (2) the case against him was weak while the case against Hale, who admitted shooting the victim, was strong; and (3) his confrontation right would be violated if Hale's out-of-court statements were admitted without Hale testifying at trial. Williams also argued that Hale's prior propensity to disrupt court proceedings might cause the jurors to disfavor Williams.¹⁹

19 On the date of the preliminary hearing, Hale had lunged at Williams. After the disruption, both Hale and Williams waived their right to a preliminary hearing.

The information Williams presented to the court at the time of his severance motion was that the victim and his girlfriend came out of a store and were confronted by Williams, who challenged the victim to a physical fight because the victim had lied to police that a gun found in the victim's possession during a recent arrest belonged to Williams. When the victim would not fight, Williams turned away. Hale came forward and fired a gun at the victim. Williams heard the gunshots but did not know where they were aimed and ran away. The police collected four .380-caliber casings at the scene, the same caliber that had been used in an earlier drive-by shooting of the victim's home.²⁰

20 Williams's severance motion claimed the government would "scientifically show" the same gun was used in the shooting of the victim's house and the shooting at the shopping center. However, the testimony ultimately adduced at trial was that the forensic examiner could not "conclusively" say the shell casings were fired from the same gun (because no gun had been provided to her), although it was "likely" the same gun fired the shell casings.

Hale eventually admitted to the police that he was the shooter at the shopping center. Hale told police that Williams did not know Hale was carrying a gun and was surprised by the gunshots. Hale denied doing the drive-by shooting and said he " 'heard' " Williams had done a drive-by shooting. Williams denied having used the car driven by Hale and denied all allegations. Hale told police he knew nothing about the assault weapon that police took from the victim.

The victim told police that Williams challenged him to fight, saying the victim owed $350 because that was the amount defendant Williams had paid for the SKS. The victim said he was not going to fight because he was out on bail and had used his money for bail. Williams made fighting motions trying to get the victim to fight. Williams then walked away, saying, "[Y]ou come to the street nigga and I'm gonna shoot your ass." A "light skinned dread head guy," whom the victim knew as " 'Cash,' " walked up, asking, " '[T]hat the nigga got my gun took,' " and defendant Williams said, "[Y]eah." Cash then fired a gun at the victim.

The severance motion asserted there was no indication that Hale would testify, and therefore his admissions to police would be admitted into evidence without defendant Williams having the opportunity to confront and cross-examine him.

Regarding cross-admissibility of evidence, Williams asserted in the severance motion that the prosecution was in possession of a video showing that Hale shot the victim, and the prosecution had evidence that Hale admitted he shot the victim and said that Williams neither shot the victim nor knew that Hale had a gun, and the prosecution had evidence that the gun used to shoot the victim was the same weapon that was used in an earlier drive-by shooting of the victim's home. There were no witnesses to the drive- by shooting, only rumors. The only connection was that a vehicle matching the description of Hale's girlfriend's car was seen leaving the scene of the drive-by shooting. At the hearing of the motion, counsel told the court that Williams's fingerprints were not found in the car. "Therefore, the [prosecution] having [] Hale, the person from whom the gun was recovered, associated with [] Williams in the home shooting is a stretch that is only accomplished because the case against [] Williams[] is so weak. This deprives [] Williams of due process and a fair trial."

Before the ruling on the severance motion, Hale's attorney disclosed that Hale's defense would be that he shot the victim in self-defense.

The trial court, which had already ordered a security restraint on Hale's nonwriting hand during trial, disagreed that an outburst by Hale would taint Williams. The court ruled the cases "are properly joined. They are of the same class. They are what the Legislature envisioned as being joinable offenses. I don't see where a weak case is joined with a stronger case. I don't see that being the issue. And so I really see no basis to grant his severance." In response to an argument that Williams's defense was inconsistent with Hale's defense, the trial court observed, "The Supreme Court has said if that was the basis, then there would be no -- very few codefendant[] cases ever going forward. Generally speaking, in codefendant cases a finger gets pointed somewhere, and it's usually not at the person themselves. So that cannot be the touchstone for basis to sever. And so I am going to deny your severance motion."

3. Analysis

a. Denial of Severance Based on Information Presented to the Trial Court Pretrial

We first consider whether the trial court abused its discretion when it denied severance based on the information known to the court at the time of the ruling. (Sanchez, supra, 63 Cal.4th at p. 464; Lewis, supra, 43 Cal.4th at p. 452.)

On appeal, defendant Williams mainly cites trial testimony that was not before the court when it ruled on the severance motion. The People cite evidence from a preliminary examination conducted on an initial complaint charging Hale only, but we see nothing indicating the trial court considered that transcript in denying the severance motion, and both Hale and Williams waived a preliminary hearing after the filing of the consolidated complaint.

Based on the information actually before the trial court at the time of the motion, we conclude the trial court did not abuse its discretion by denying the motion. "Whenever defendants are jointly tried, part of the prosecution's case will naturally attempt to establish that the defendants associated with each other, at least to the extent that they all participated in the crimes at issue. To some degree, as the high court has recognized, '[w]hen many conspire, they invite mass trial by their conduct.' " (Bryant, supra, 60 Cal.4th at p. 383.)

As for Hale's defense, his self-defense theory did not require severance, because the jury's acceptance of that theory would not preclude acquittal of Williams. (Lewis, supra, 43 Cal.4th at p. 461.) To the contrary, it would help Williams, because if the shooter was justified, Williams would not be convicted as an aider and abettor. (RB 43-44) Williams could not have benefited from Hale's self-defense claim without Hale's testimony.²¹ Hale's claim of self-defense, which of course meant the shooting was not planned, was not inconsistent with Williams's defense that he was walking away from the confrontation and did not know Hale would fire the gun.

21 Williams essentially concedes he benefited from Hale's defense when he joined in Hale's appellate argument concerning the initial aggressor/mutual combat instructions we discussed, ante. Williams joined in that argument "because it concerns an incorrect instruction regarding self-defense. Inasmuch as [Williams]'s liability as an aider and abettor is predicated on [] Hale[] as the shooter, that argument is equally applicable to [Williams]."

Even if Hale's self-defense theory was weak, Williams fails to identify evidence, other than Hale's statements and testimony implicating Williams, which would not have been admissible in a separate trial of Williams. Certainly, a jury in a separate trial of defendant Williams would have been presented with the evidence set forth in the severance motion that he and Hale were together in the parking lot, that Williams tried to get the victim to come to the street to fight, that Hale asked if the victim was the person who "got my gun took," that Williams said, "[Y]eah," and that Hale shot the victim.

Insofar as Williams suggested a joint trial could prejudice him in the drive-by shooting charged against him but not Hale, Williams did not ask for a separate trial of the drive-by shooting. In any event, the forensic evidence and evidence concerning the car used in the drive-by shooting implicating Hale likely would have been offered in a separate trial of the drive-by shooting by the prosecution and if not, perhaps by Williams. Moreover, even assuming for the sake of argument that the trial court should have severed count one, we would not reverse the judgment because "reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable result at a separate trial." (Lewis, supra, 43 Cal.4th at p. 452.) The trial court dismissed count one after the jury was unable to reach a verdict. A more favorable result for Williams is not reasonably probable.

We conclude the trial court did not abuse its discretion in denying the severance motion based on the information before the court at the time of its ruling.

b. Due Process Consideration Based on Trial Evidence

The question remains whether the consolidation nevertheless resulted in violation of Williams's due process rights. To address this question, we look to the evidence the jury actually heard and determine whether joint trial caused "gross unfairness that denied due process." (Sanchez, supra, 63 Cal.4th at p. 464; Lewis, supra, 43 Cal.4th at p. 452.) Clearly, it did not.

Hale did testify at trial, thus eliminating Williams's claimed deprivation of the right to confront and cross-examine him.

Williams argues Hale's self-defense theory lacked credibility, and Hale acknowledged he carried a gun and lied to police, wrote rap lyrics about a shooting, and had a prior conviction for injuring the mother of his child. However, Hale's self-defense theory did not hurt defendant Williams, and in a separate trial the jury would have learned about Williams's association with Hale. Even assuming a jury in a severed trial would not learn about the rap lyrics or Hale's domestic violence incident, that evidence did not render this trial grossly unfair as to Williams.

Williams suggests that, without Hale, the only evidence against Williams would have been that Williams was "in the process of departing" when Hale shot the victim. We disagree. The victim and Sylvester said that Williams was walking toward the street urging the victim to come fight in the street.

Williams argues the case against him was weak and the case against Hale was stronger because police found gunshot residue and Hale's fingerprint in the vehicle which police saw Hale driving several days after the victim was shot and which matched the description of a car seen leaving the scene of the drive-by shooting of the victim's home. However, though the car apparently belonged to a woman who had a relationship with Hale, the victim had seen defendant Williams driving it on one occasion. The victim also testified he had been receiving threatening phone calls from Williams. In any event, it seems clear Williams was not prejudiced by the joint trial, because the jury did not return a verdict against him on the drive-by shooting, despite the evidence implicating his friend Hale in that shooting.

Williams argues the joint trial prejudiced him because the jury learned of Hale's prior felony conviction. To justify severance on such grounds, the characteristics of one defendant must be such that the jury will find the remaining defendant guilty simply because of his association with a reprehensible person, rather than assessing each defendant's individual guilt of the charged crimes. (Bryant, supra, 60 Cal.4th at p. 383.) We do not see how Hale having been convicted of battery on his girlfriend prejudiced Williams. It does not appear the jury would have found Hale's characteristics "so overwhelming compared" to Williams that it convicted Williams simply because of his association with Hale, a person who had been previously convicted of domestic violence. (Ibid.) Moreover, the trial court instructed the jurors they could consider the prior conviction only in determining the truth of the prior conviction allegation and evaluating Hale's credibility, and the court instructed the jury not to consider the exhibit of Hale's prior conviction against Williams. We presume the jury followed the trial court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

We conclude the joint trial did not cause "gross unfairness that denied due process." Consequently, the trial court's denial of Williams's severance motion does not afford grounds for reversal.

B. Accomplice Instructions

Williams complains the trial court failed to instruct sua sponte with CALCRIM No. 334. That instruction is required by section 1111, and it would have told the jury: that it had to determine whether Hale was an accomplice; if Hale was an accomplice, his testimony must be viewed with caution insofar as it tended to implicate Williams; the jury could not convict Williams based on Hale's statements or testimony alone; and that it could use Hale's statements or testimony to convict Williams only if Hale's statements or testimony was corroborated by independent evidence that tended to connect Williams to the charged crime. The People agree the trial court erred by not instructing on accomplice testimony but argue the error was harmless error.

We agree with the People. The trial court erred by not giving the appropriate accomplice testimony instructions.²² However, the error was harmless.

22 While we agree that the trial court erred by not giving accomplice testimony instructions, we disagree with defendant that the trial court should have given CALCRIM No. 334. That instruction should only be given when there is a dispute that the witness is an accomplice. Where, as here, the witness is an accomplice as a matter of law, CALCRIM No. 335 should be given. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1161, disapproved on other grounds, People v. Cook (2015) 60 Cal.4th 922, 939.)

CALCRIM Nos. 334 and 335 are required by section 1111, which prohibits a conviction based "upon the testimony of an accomplice unless it [is] corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is . . . defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111, italics added; People v. Hillhouse (2002) 27 Cal.4th 469, 492; People v. Rodrigues (1994) 8 Cal.4th 1060, 1128-1130.) "To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ' "[T]he corroborative evidence may be slight and entitled to little consideration when standing alone." ' " (People v. Avila (2006) 38 Cal.4th 491, 562-563, italics added (Avila).) Corroborating evidence may be entirely circumstantial. (People v. Lewis (2001) 26 Cal.4th 334, 370.) Moreover, the corroborating evidence need only relate to one part of the accomplice's testimony (ibid.), and it " ' "need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth." ' " (People v. Szeto (1981) 29 Cal.3d 20, 27, italics added (Szeto).) And it is not necessary that the corroborative evidence establish every element of the charged crimes. (People v. Miranda (1987) 44 Cal.3d 57, 100; Szeto, at p. 27.) The purpose of section 1111 is "to ensure that a defendant will not be convicted solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives." (People v. Davis (2005) 36 Cal.4th 510, 547 (Davis).)

When a witness is an accomplice, the trial court must on its own motion instruct the jury on the principles governing accomplices, including the need for corroborating evidence tending to connect the defendant to the crime, independent of the accomplice's statement or testimony. (People v. Tobias (2001) 25 Cal.4th 327, 331.) However, our high court has held that error related to accomplice instructions under section 1111 does not implicate federal constitutional error, because section 1111 does not bear on the substantive guilt or innocence of the defendant but rather the reliability of the evidence used to convict him. (People v. Frye (1998) 18 Cal.4th 894, 968, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421.)

Williams argues the California Supreme Court's analysis about section 1111 not implicating the federal constitution is "unpersuasive," because the statute does bear on substantive guilt or innocence. We disagree. And in any event, we are bound by California Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 (Auto Equity Sales).)²³

23 In several places in his briefing, appellate counsel referred to "this court" when discussing the pronouncements of the California Supreme Court, including where he discussed the rule our high court announced in Frye, supra, 18 Cal.4th at page 968. It appears that portions of the text of the brief filed in this court were copied and pasted from another brief where appellate counsel made the same argument to our high court. --------

"A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is sufficient corroborating evidence in the record." (People v. Lewis, supra, 26 Cal.4th at p. 370; accord, People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 304.)

Williams challenges the California Supreme Court's authority as "unsound judicial policy [which] recognizes a judicial error for which there is no appellate remedy." He maintains, "[I]f the error is harmless whenever the record contains any evidence of corroboration, then the trial court has no incentive to instruct properly to begin with because the error will never be reversible. The lack of corroborating evidence is itself a basis for reversal and, therefore, the lack of proper instruction in such a case would not be an issue. Hence, . . . the failure to instruct on corroboration will either be harmless -- if corroborating evidence exists -- or moot -- if corroborating evidence does not exist." We reiterate we are bound by California Supreme Court precedent (Auto Equity Sales, supra, 57 Cal.2d 450) and add that we presume official duty will be regularly performed by trial courts (Evid. Code, § 664).

Williams argues that, even if the test for harmless error is whether the record contains sufficient corroborating evidence, we must examine whether there was sufficient corroboration in light of the " ' "entire record," ' " citing People v. Gordon (1973) 10 Cal.3d 460, 470-471, disapproved on other grounds, People v. Ward (2005) 36 Cal.4th 186, 212. An examination of the entirety of the evidence before the jury reveals there is more than sufficient corroborating evidence. Williams's contrary argument is based on his misstatement of the evidence.

Williams claims the evidence showed he was not following through with any alleged threats against the victim, because the evidence showed he asked the victim for money, goaded the victim to participate in a street fight, "then walked away when [the victim] refused to do so . . . ." Williams claims there was no corroborating evidence that he arrived with Hale, and the evidence at most shows that, after a failed attempt to incite a fist fight, Williams "left for the parking lot by himself."

But the evidence is clear that Williams made repeated threats to the victim about the seizure of the gun prior to the encounter at the shopping center. This circumstantial evidence of motive is more than slight evidence connecting Williams with the shooting despite Williams's distorted view of the evidence. Moreover, the video shows Williams walked onto the scene followed by Hale. Williams was either on the storefront sidewalk or in the parking lot during the entire confrontation. The video does show Williams walking away from the victim, but despite urging us to look at the entire record, Williams ignores the evidence that he was not merely leaving; rather, he was taunting the victim to come to the street. Although some of the evidence of taunting came from Hale's testimony, it was corroborated by: (1) the surveillance video showing defendant Williams beckoning the victim to come his direction while walking; (2) the victim's statements to the police and his trial testimony that defendant Williams said to the victim something like " 'come to the street, nigga, I'm gonna shoot your ass' "; and (3) the trial testimony of Sylvester that defendant Williams said something about wanting the victim to come to the street with him so they could fight there. Although the victim initially testified at trial that defendant Williams just walked away before the shooting and did not recall telling the police about the taunting to come to the street, the victim also testified on cross-examination by Hale's counsel, "I remember now that little light bulb . . . in my head, he [defendant Williams] did say something. Something close to what you said walking to the parking lot." What counsel had asked was whether the victim told police that as Williams walked away he said, " 'you come to the street, nigga, I'm going to shoot your ass.' " The victim explained Williams "might have said something like that," but he did not recall it until his "light bulb" moment.

Moreover, the video shows that Williams made a motion with his left arm that looks like a gesture toward the victim just before Hale rushed the victim and shot him. Contrary to Williams's contention that he left the parking lot by himself, he was still well within the parking lot when he made that gesture and then turned and looked in Hale's direction as Hale rushed the victim. After the victim was shot, Williams and Hale began running out of the parking lot at the same time in the same direction. The direction in which they ran was the same direction from which they had entered the scene earlier in the surveillance recording. This evidence, together with the trial testimony of the victim and Sylvester that defendant Williams had been angry about the confiscated firearm, threatened the victim repeatedly, demanded money for the firearm, and confronted the victim about it at the shopping center was far more than slight evidence tending to connect defendant to the crime.

Williams argues there was no corroborating evidence that he went to Hale looking for a gun or that he then went to the shopping center with Hale as Hale had told the police. However, Williams cites no authority requiring independent corroboration of every word uttered by Hale. To the contrary, the law is well settled that the corroborating evidence need not corroborate an accomplice in every fact to which the accomplice testifies. (Davis, supra, 36 Cal.4th at p. 543; People v. Lewis, supra, 26 Cal.4th at p. 370; Szeto, supra, 29 Cal.3d at p. 27; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1177-1178.)

Williams argues the corroborating evidence of his threats was weak, because even if it were his voice on the phone message, saying to pay up or "it's a wrap," the phrase "it's a wrap" is not a threat to shoot someone. In our view, in light of the entire record, a reasonable interpretation of "it's a wrap" is that it was a threat to end the victim's life. Moreover, there was also the testimony of the victim and Sylvester about defendant Williams's threat to shoot the victim in the face. In any event, as we have noted, corroborating evidence may be circumstantial and of little weight by itself. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 185-186; Avila, supra, 38 Cal.4th at pp. 562-563.) Here, both the circumstantial and direct evidence was of great weight.

We conclude the trial court's failure to instruct on accomplice testimony was harmless by any standard.

C. Substantial Evidence of Aiding and Abetting

Since it was undisputed that Hale fired the gun, Williams's culpability was as an aider and abettor. Williams maintains there is insufficient evidence that he aided and abetted Hale in attempted murder. For purposes of this argument, we disregard the evidence about the drive-by shooting of the victim's home, on which the jury was unable to reach a verdict. We conclude the other evidence supports the judgment.

Substantial evidence exists when it is determined, after viewing the evidence in the light most favorable to the prosecution, that any rational trier of fact could have found the essential elements beyond a reasonable doubt. (People v. Medina (2009) 46 Cal.4th 913, 919; People v. Johnson (1980) 26 Cal.3d 557, 562.) 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.)

As the jury was instructed, a person aids and abets a crime when he acts with knowledge of the unlawful purpose of the perpetrator and the intent or purpose of encouraging or facilitating the commission of the crime, and his act or advice in some manner aids, promotes, encourages, or instigates the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.) To be guilty of attempted murder as an aider and abettor, the defendant must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing -- which means that the person guilty of attempted murder as an aider and abettor must intend to kill. (People v. Lee (2003) 31 Cal.4th 613, 624.)

Williams argues the evidence of aiding and abetting is insufficient because there was no evidence he went to the shopping center with Hale (beyond "Hale's uncorroborated statement"); Williams was walking away from the victim when Hale approached and shot the victim; and there was evidence that the victim called Hale a " 'bitch ass nigger.' "

Williams forfeits his substantial evidence argument by restricting his analysis to facts and inferences favorable to himself. (People v. Battle (2011) 198 Cal.App.4th 50, 62.) Again, Williams claims the shooting happened "after [he] had departed." But there was evidence that he was not departing but was trying to move the confrontation to the street where he would " 'shoot [the victim's] ass.' " The surveillance video we have recounted provides further support for this conclusion.

Regarding Williams's threats about the victim losing the SKS, Williams argues, "The only tangible evidence beyond [the victim] and his girlfriend, Sylvester's description of these threats, was a saved cell phone message in which the speaker, only identified by [the victim] as appellant [Williams], stated that if he did not get his money, it was a wrap." (Italics added.) Williams then argues there was no "actual evidence" of the phone call and no "reliable evidence" the voice was his. However, the testimony of the victim and/or Sylvester is, in and of itself, substantial evidence of those facts. Moreover, Williams ignores the testimony of the victim and Sylvester about Williams's words and actions at the shopping center moments before Hale shot the victim. Those witnesses testified that Williams said, " 'You got my gun took. Where's my money at,' " and Williams was "irritated" that the victim did not have the money. They also said Williams made fighting moves. Williams also ignores the surveillance video from which the jury could infer that Williams and Hale were together, that Williams was angry, and that Williams was not departing but was still engaged in confronting the victim when the victim was shot. Indeed, as we have noted, the video shows Williams gesturing toward the victim at the moment Hale rushed the victim and fired multiple shots.

Additionally, Sylvester testified that before the shooting, Williams said, " 'That's a nigga who got my gun took.' " Further, before firing the gun, Hale said to the victim something like, " 'Nigga, you got my gun took. You think we playing.' " (Italics added.) The use of the word "we" shows concerted action by Williams and Hale. Even assuming the substantial evidence contention is not forfeited, it fails based on this evidence.

Moreover, in addition to the aforementioned evidence, Hale's statements to the police factors into the substantial evidence analysis because, as we concluded, ante, his testimony was sufficiently corroborated despite his accomplice status. Hale told the police he went to the shopping center with Williams after Williams appeared at the apartment where Hale was located, and Williams got a gun and said he had "got into it" with the victim. That Hale tried to disavow the truth of this statement in his trial testimony does not nullify the evidence. The jury could disbelieve Hale's disavowal, particularly since Hale at trial inadvertently confirmed the truth of the prior statement by testifying that at the moment he shot the victim he had a "feelin' " the victim was Williams's cousin because Williams "told me he had got into it with his cousin."

For purposes of this appeal, it does not matter whether the confiscated SKS belonged to Williams or whether it belonged to Hale who had entrusted it to Williams or whether they jointly owned the weapon. The victim obtained the gun from Williams at Williams's home at Williams's request. After the police confiscated the firearm, Williams demanded money from the victim. When the victim said he did not have money, Williams threatened to shoot the victim in the face if he did not come up with the money and left a voice mail message saying pay him or "[i]t's a wrap." At the shopping center, Williams confronted the victim about the firearm and money, acted like he wanted to fight the victim and, still gesturing, walked across the parking lot, urging the victim to " 'come to the street' " to get shot. When the victim did not go to the street, Hale shot him.

Substantial evidence supports the conclusion that Williams aided and abetted the attempted murder.

D. Substantial Evidence of Deliberate and Premeditated Attempted Murder

Williams views the evidence as insufficient to support the finding of " 'willful, deliberate, and premeditated' attempted murder." We disagree.

A reviewing court does not distinguish between murder and attempted murder for purposes of determining whether there is sufficient evidence of deliberation and premeditation. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462-1463, fn. 8, disapproved on other grounds in People v. Mesa (2012) 54 Cal.4th 191, 199.) " ' "Deliberation" ' " means the " 'careful weighing of considerations in forming a course of action.' " (People v. Leon (2010) 181 Cal.App.4th 452, 467.) " ' "Premeditation" ' " means the defendant " 'thought [it] over in advance.' " (Ibid.) The California Supreme Court has identified a nonexhaustive list of three types of evidence to consider "as a guide" for determining the sufficiency of the evidence of deliberation and premeditation: (1) evidence of planning activity; (2) motive; and (3) manner of killing. (People v. Mendoza (2011) 52 Cal.4th 1056, 1069 [the list is not " ' "an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation" ' "]; People v. Anderson (1968) 70 Cal.2d 15, 25.) Deliberation and premeditation may be shown by circumstantial evidence. (Anderson, at p. 25.)

Here, there was substantial evidence of deliberation and premeditation by Williams. Williams threatened to shoot the victim unless he was compensated for the confiscated SKS. Williams left a phone message for the victim to pay up or "it's a wrap." Williams and Hale went to the shopping center together with a gun. The surveillance video showed Williams entering and leaving the liquor store within five seconds, supporting the inference he was looking for someone. Williams saw the victim coming out of the nail salon, confronted him, demanded money and made fighting moves when he did not get the money. Williams taunted the victim to come to the street to have his "ass" shot. Hale said, " 'You think we playing,' " (italics added) before he shot the victim. Just before Hale rushed the victim, the video shows Williams gesturing with his left arm towards the victim. Thus, there was evidence Williams planned to kill the victim if the victim did not pay him and had motive for the killing. The manner of killing was multiple gunshots, conduct likely to result in death.

Looking at the evidence in a light most favorable for the prosecution, there is substantial evidence that Williams acted willfully, with deliberation and premeditation, in the attempted murder of the victim.

E. Restitution Fines

In a supplemental brief, Williams argues the abstract of judgment incorrectly overstates the amount of a restitution fine ordered by the trial court. The People concede the point, and we agree.

The trial court verbally stated at sentencing that it was imposing conditions recommended on pages 14 and 15 of the probation report. Page 14 of the probation report recommended that the trial court order Williams to pay "a restitution fine pursuant to . . . section 1202.4 in the amount of $1,600.00." It also recommended that a parole revocation restitution fine in the same amount be imposed and suspended unless parole is revoked. However, the minute order and abstract of judgment state the section 1202.4 restitution fine and the section 1202.45 parole revocation restitution fine were $10,000.

"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)

Accordingly, we order correction of the abstract of judgment to show the amount of the section 1202.4 restitution fine and the section 1202.45 parole revocation restitution fine is $1,600.00 each.

DISPOSITION

Hale's judgment is affirmed.

Williams's judgment is modified to show the amount of the section 1202.4 restitution fine and the section 1202.45 parole revocation restitution fine is $1,600 each. As modified, the judgment is affirmed. We direct the trial court to prepare a corrected abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

MURRAY, J. We concur: BLEASE, Acting P. J. HOCH, J.