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People v. Balangue

California Court of Appeals, Fifth District
Apr 25, 2022
No. F079271 (Cal. Ct. App. Apr. 25, 2022)

Opinion

F079271

04-25-2022

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY HENRY BALANGUE, Defendant and Appellant.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

Order Filed Date: 5/16/22

APPEAL from a judgment of the Superior Court of Tulare County Nos. PCF354765A and PCF322492 Antonio A. Reyes, Judge.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.

ORDER MODIFYING OPINION

The Court:

It is ordered that the opinion filed herein on April 25, 2022, be modified as follows:

1. Add Superior Court case No. PCF322492 to the title page of the opinion.

2. On page 8, after the third full paragraph and before the heading "Discussion" add the following paragraph:

Immediately following sentencing in the attempted murder case, Superior Court No. PCF354765A (PCF354765A), the trial court pronounced judgment in defendant's VOP matter (see fn. 2, ante), Superior Court No. PCF322492 (PCF322492). Defendant subsequently filed a notice of appeal as to both judgments. However, the briefing on appeal raises no issues regarding the VOP matter. We therefore deem the appeal in PCF322492 abandoned and all related claims forfeited. (See People v. Lemcke (2021) 11 Cal.5th 644, 654, fn. 3; Eck v. City of Los Angeles (2019) 41 Cal.App.5th 141, 146.) 1

3. On page 57, the paragraph under the heading "Disposition" is deleted and the following paragraphs inserted in its place:

In PCF354765A, the true findings on all enhancements alleged pursuant to sections 186.22, 667.5, and 12022.53 are reversed for insufficient evidence. The cause is remanded for resentencing. In all other respects, the judgment is affirmed.

The judgment in PCF322492 is affirmed.

Except for the modifications set forth, the opinion previously filed remains unchanged. There is no change in the judgment. 2

OPINION

PEÑA, J.

A jury found Anthony Henry Balangue (defendant) guilty on two counts of attempted premeditated murder. He was accordingly sentenced to two consecutive indeterminate prison terms of seven years to life. The parole ineligibility periods were 3 doubled to 14 years because of a prior strike conviction, resulting in an aggregate indeterminate sentence of 28 years to life. Defendant received a consecutive aggregate determinate term of 25 years based on gang allegation findings, firearm enhancements, and a status enhancement for a prior serious felony conviction.

Defendant's claims on appeal include challenges to the sufficiency of the evidence, the wording of the jury instructions, and the competence of his trial counsel. We agree the gang findings lack evidentiary support, which also invalidates the firearm enhancements. A prior prison term enhancement not addressed at sentencing or in the parties' briefs must also be reversed for insufficient evidence. The guilty verdicts and prior conviction findings will stand. We affirm in part, reverse in part, and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On June 3, 2012, at 3:47 p.m., the Porterville Police Department received a 911 call from a non-native English speaker (victim 2). He told the dispatcher, "[We are] by the cemetery, we're driving around in a car and, ah, one of my friends, some, ah, some young gangsters, ah, trying to beat the crap out of him from the car." The caller said his friend (victim 1) was driving a Jeep Cherokee and the "gangsters" were in a white Ford Taurus. He estimated the Taurus to be an older model, circa 2000. The call dropped or was abruptly terminated as victim 2 was asking for police to meet them at the 8-10 Market (located near the intersection of Leggett Street and Orange Avenue).

At 3:57 p.m., victim 2 called back and told the dispatcher, "You know what, they, they shoot us already in the car and we driving, um- … They, they shoot in the car. They shoot us with a gun." As the call continued, the victims saw a police officer and flagged him down. The officer took note of a bleeding wound on victim 1's right hand and several bullet holes in the Jeep Cherokee. He obtained from victim 2 a description of the suspect vehicle and the last three digits of its license plate number. Victim 2 reported having seen "three Hispanic males" inside of the Ford Taurus. 4

The crime scene was determined to be the "T-intersection" of Hillcrest Street and Robey Avenue, near the cemetery referenced in the emergency call. Eight expended bullet casings were found in the northwest corner of the roadway. Subsequent forensic testing confirmed all were fired from the same gun.

Victim 1 had been selling merchandise at or near the 8-10 Market prior to the shooting. After leaving there to run an errand, he got into a "slow-speed collision" with a white Ford Taurus at the intersection of Orange Avenue and Corona Drive. The parties exited their respective vehicles, which led to a hostile encounter between victim 1 and two young men. Victim 1 described the individuals "as being approximately five foot nine, medium build, short dark hair, light complexion, with the first one having a little mustache and the second one having a little mustache or a goatee."

According to victim 1's statements to police, one of the men struck him "in the back of the neck," knocking his cowboy hat to the ground. Victim 1 "took off his belt and started swinging it to protect himself." The men cursed at him and assumed "fighting stance[s] with their fists clenched." At some point victim 1 reached for his hat, but he hesitated because "one of the suspects was holding a large rock over his head." When victim 1 retreated to his Jeep Cherokee, the man with the rock picked up the hat and handed it to him. Victim 1 then drove back to the 8-10 Market and told victim 2 about what had happened.

While conversing outside of the store, victims 1 and 2 saw the Ford Taurus drive past them and turn onto Leggett Street, heading north. They decided to follow the Taurus, allegedly to obtain the license plate information and report the incident to police. A few minutes later, as victims 1 and 2 were driving north on Leggett Street in the Jeep Cherokee, the white Ford Taurus passed them in the southbound lane. The Taurus then made a U-turn and began driving behind them.

The Taurus followed the victims up Leggett Street and continued to shadow them as victim 1 drove west on Putnam Avenue; south on Crestview Street; eastward on Olive 5 Avenue; and further south on Hillcrest Street. After victim 1 had stopped at the Robey Avenue intersection and began turning right, a succession of bullets penetrated the rear door and windshield of his vehicle. Both victims ducked and the Jeep veered off the road, colliding with a fence. The Taurus drove away in the opposite direction.

Victim 2 recalled seeing two Hispanic males generally matching victim 1's description of the people from the earlier altercation. He estimated the driver of the Taurus to be "in his early twenties[, ] with a short haircut [and] wearing a white T-shirt." The other person also had short hair and a white shirt. Victim 2 further reported the involvement of a bearded "Hispanic male adult between 30 to 40 years of age" who had "messy" or "scruffy" hair, i.e., "longer hair, curly hair; not [as] clean-cut." This older man had been seated behind the driver.

The license plate numbers led police to the registered owner ("Vanessa") of a white 2001 Ford Taurus. Vanessa was defendant's girlfriend, cohabitant, and the mother of his children. Police records showed defendant had been pulled over while driving Vanessa's car approximately nine weeks prior to the shooting. His passengers at the time included Vanessa and his older brother, Adam Balangue. Based on this information, a detective created photographic lineups containing pictures of defendant (then age 22) and his brother.

A prosecution witness testified the Ford Taurus was registered to Vanessa's mother. However, the People's trial evidence included a certified California Law Enforcement Telecommunication System (CLETS) record showing the registered owner was Vanessa, and this was consistent with Vanessa's own testimony. The prosecutor thus alleged the car was registered to Vanessa. "We summarize the evidence in the light most favorable to the judgment." (People v. Gadlin (2000) 78 Cal.App.4th 587, 590.)

Victim 1 selected defendant's photograph, reportedly "advising he was 80 percent positive" defendant was the person who had threatened him with a rock. Victim 2 selected defendant's photograph as well, "saying he was 70 percent positive that he was 6 one of the two subjects in the white Ford Taurus." Neither of the victims recognized Adam Balangue.

The photographic lineups were conducted shortly before midnight by Detective Manuel Franco. Meanwhile, Vanessa was questioned by Detective Lancelot Kirk at her home. Defendant was not there, and at first Vanessa claimed she and defendant had recently separated. Vanessa then admitted to having lent her car to defendant and her 22-year-old cousin, Charles Garcia (Garcia), also known as Charles Da Silva. Detective Kirk later testified: "So her story changed from that she hadn't seen [defendant] in three days to that he, being [defendant], and Charlie Garcia or Da Silva had used her car earlier in the afternoon to go do something and that they were gone for about 30 minutes with that car, the white Ford Taurus."

Upon returning with her vehicle, defendant and Garcia told Vanessa they had been involved in some type of "incident." Vanessa denied having further knowledge of the incident, but she revealed they had subsequently attended a barbeque at the home of Garcia's brother. Detective Kirk went to the home of Garcia's brother and found the Ford Taurus parked inside of his garage.

As the investigation continued into the early hours of June 4, 2012, police returned to Vanessa's residence. The detective who rang the doorbell "heard what sounded like someone was running out the backyard and jumping the fence." Defendant was apprehended behind the house. Garcia was found "sitting on the couch in the living room" and surrendered without incident.

After learning about Garcia, Detective Franco showed the victims a set of photographic lineups containing Garcia's image. Victim 1 was "80 percent positive" Garcia was the man who had punched him. Victim 2 also selected Garcia's photograph, claiming to be "70 percent positive" of his involvement in the shooting. 7

The district attorney's office initially declined to prosecute the case. This decision was reevaluated in 2017, resulting in charges against defendant and Garcia. The third suspect was never identified.

The decision to prosecute coincided with defendant's violation of probation (VOP) in an unrelated matter. Defendant had been implicated in a 2014 drive-by shooting and avoided a charge of attempted premeditated murder by pleading to assault with a firearm, unlawful gun possession, and various enhancements. The plea deal included a grant of probation, a suspended 14-year prison sentence, and the dismissal of a prior strike allegation. The record suggests the present case was last rejected for prosecution in 2013, and while working on the VOP matter a different prosecutor learned the white Ford Taurus had been used in both the 2012 and 2014 shootings. The prosecutor later attested to her belief "that the previous rejection was based on an incorrect understanding of the law and evidence."

In 2018, Garcia pleaded no contest to one count of attempted second degree murder and admitted a gang enhancement allegation. He received a 15-year prison sentence in exchange for his plea.

Defendant was charged with two counts of attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)). Both counts included gang and firearm enhancement allegations (§§ 186.22, subd. (b), 12022.53, subds. (c), (d), (e)(1)). Defendant was alleged to have personally inflicted great bodily injury upon victim 1 for purposes of section 12022.7, subdivision (a). A prior strike was alleged for purposes of the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12.) There were further allegations of a prior serious felony conviction (§ 667, subd. (a)) and a prior prison term (§ 667.5, former subd. (b)).

All undesignated statutory references are to the Penal Code.

The case went to trial in January 2019, ending with a hung jury. Defendant was retried several weeks later. Victim 1 testified at the first trial but was reportedly "uncooperative regarding testifying at the retrial." He was declared an unavailable witness, and his prior testimony was read into the record. (See Evid. Code, § 1291.) Victim 2 testified in both proceedings. 8

Victim 2's testimony clarified that the unidentified third suspect was not present during the initial altercation between defendant, Garcia, and victim 1. This meant defendant and Garcia had met up with their accomplice in one of the neighborhoods adjoining Leggett Street. Victim 1 gave similar testimony, but some of the details were inconsistent.

Victim 2's testimony indicated defendant was driving the Taurus at the time of the shooting. He believed the shots were fired from "the right side of the vehicle." Victim 1 could not identify the driver, but he claimed to have actually seen the third suspect holding "a pistol out through the window."

Victim 2 was asked, "Were you able to see how many-or where the shots came from the white Ford Taurus?" He replied, "It was hard for me to tell that. But according to the position that I was, I'm pretty sure they came from back, from the back of the car, on the driver's side-the passenger's side, on the right side of the vehicle." When asked to explain this answer, he said (with explanatory gestures), "[The Jeep] was turning this way and they were coming like this. So there would be no point-the only access they had to shoot it was this way, because they shoot this way."

Victim 1 testified, "When we started stopping at the stop [sign], I didn't want to stop completely because I thought they were going to shoot at us." The shooting began when the Jeep paused at the intersection, and one of the bullets "grazed" his hand. He described the resulting wound as "a minor scratch."

The People introduced expert testimony to support the gang allegations, which we summarize in the Discussion, post. The People also introduced two recorded jail calls to show consciousness of guilt. The conversations were between defendant and his mother.

Defendant was recorded making derisive comments about Garcia, who at the time was considering but had not yet accepted a plea deal. In response, defendant's mother said, "I don't know why you requested him to be [your cellmate]." Defendant replied, "Why? Because if he did something stupid I fuck his little bitch ass up, that's why. [¶] … [¶] Make … a wrong move say something stupid in court so I can fuck you up, 9 that's why." Months later, during defendant's retrial, Garcia was held in contempt for refusing to answer questions on the witness stand.

Defendant also expressed concern over what Vanessa might say in court. He was recorded stating that she should not appear, even if it meant being jailed for contempt, or "just… go in there and shut the fuck up." Defendant's mother responded, "'I don't recall, I don't recall, I don't recall.' Everything she says, 'I don't recall, I don't recall.'" Defendant continued, "And that's the only words that should come out of her mouth."

The jury deliberated for approximately 3.5 hours before finding defendant guilty on both counts. During its deliberations, the jury asked questions regarding the firearm use and great bodily injury (GBI) allegations. True findings were returned on all allegations except those requiring the infliction of GBI.

For the attempted murder of victim 1, defendant was sentenced to 14 years to life in prison, plus a consecutive 20-year term for the gun enhancement, and a consecutive five-year term for the prior serious felony conviction. For the attempted murder of victim 2, defendant was sentenced to an additional consecutive term of 14 years to life. The trial court purported to stay the remaining gun and prior serious felony conviction enhancements. The gang and prior prison term enhancements were omitted from the pronouncement of judgment without explanation.

DISCUSSION

I. Sufficiency of the Evidence

A. Standard of Review

"On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt." (People v. Boyer (2006) 38 Cal.4th 412, 479.) We construe the record in the light most favorable to the judgment and presume "'the existence of every fact the jury could reasonably have deduced from 10 the evidence.'" (People v. Mendez (2019) 7 Cal.5th 680, 702.) This standard applies to convictions and enhancements. (People v. Rivera (2019) 7 Cal.5th 306, 331.)

"'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.'" (People v. Grant (2020) 57 Cal.App.5th 323, 330.) "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action." (Evid. Code, § 600, subd. (b).) "If, upon proof of the preliminary facts, the conclusion is mere guesswork, then we refer to it by such words as speculation, conjecture, surmise, suspicion, and the like; and it cannot rise to the dignity of an inference." (People v. Massie (2006) 142 Cal.App.4th 365, 374.)

It is the jury's role "to decide whether an inference should be drawn and the weight to be accorded the inference." (People v. Massie, supra, 142 Cal.App.4th at p. 374.) "Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) "If the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding." (People v. Ceja (1993) 4 Cal.4th 1134, 1139; accord, People v. Ghobrial (2018) 5 Cal.5th 250, 278.)

B. Attempted Murder

The prosecutor argued defendant was liable for attempted murder under three alternative theories: (1) as the shooter; (2) as a participant in an uncharged conspiracy; and (3) as an aider and abettor. Defendant challenges each theory and further disputes the findings of premeditation and deliberation. We need only address the evidence of aiding and abetting liability, as it fully supports both convictions. 11

1. Legal Overview

Attempted murder requires "the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Booker (2011) 51 Cal.4th 141, 177-178.) If committed with premeditation and deliberation, attempted murder is punishable by a life term, i.e., seven years to life in prison. (§§ 664, subd. (a); 3046, subd. (a).) The determinative question is whether the crime "'occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.'" (People v. Jurado (2006) 38 Cal.4th 72, 118.) "A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported-preexisting motive, planning activity, and manner of killing-but '[t]hese factors need not be present in any particular combination.'" (Ibid.)

An aider and abettor must act "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560.) The required actus reus is conduct "that in fact assists the achievement of the crime." (People v. Perez (2005) 35 Cal.4th 1219, 1225.) To be liable for attempted murder, "the aider and abettor must know and share the murderous intent of the actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) Defendant's convictions thus require substantial evidence of (1) the shooter's commission of attempted premeditated murder; (2) defendant's culpable mens rea, and (3) defendant's assistance in the achievement of the crimes. (Perez, supra, at p. 1225; see People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 847 [noting "'[i]t would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required'"].) 12

2. Analysis

We begin by considering the actions of the shooter. Eight shell casings were found at the crime scene, and at least five bullets made impact with victim 1's Jeep. Resolving conflicting testimony in support of the judgment, the vehicles were roughly two car lengths apart when the shooting began. However, the shell casings were all located south of the intersection's stop sign, which suggests an even closer range than estimated by either victim. (See People v. Williams (1992) 4 Cal.4th 354, 364 ["a trier of fact is permitted to credit some portions of a witness's testimony, and not credit others"].)

Victim 2 testified the Ford Taurus "got right behind" the Jeep when it stopped at the intersection, but he later estimated there was a separating distance of "about... two vehicles" when the shooting began.

'"The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill ....""" (People v. Smith (2005) 37 Cal.4th 733, 741 (Smith).) "That the shooter had no particular motive for shooting the victim is not dispositive, [but], where motive is shown, such evidence will usually be probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive." (Id. at p. 742.) "Indeed, a defendant may properly be convicted of attempted murder when no injury results." (People v. Avila (2009) 46 Cal.4th 680, 702.)

In Smith, an intent to kill was inferable from the firing of "a single shot into [a] vehicle from a position directly behind it and a distance of approximately one car length as [the victim driver] was pulling away from the curb." (Smith, supra, 37 Cal.4th at p. 742.) In People v. Villegas (2001) 92 Cal.App.4th 1217 (Villegas), a "clear intent to kill" was demonstrated by the act of firing "at least six shots from a distance of about twenty-five feet." (Id. at p. 1224.) "All six shots were directed at the occupants of [a] truck. 13 Two of the shots were directly at the driver's side door, one was directed at the truck bed, one was near the driver's side window, and two were in the back window of the cab." (Id. . at pp. 1224-1225.)

Defendant's passenger fired eight shots at victim 1's Jeep from a distance comparable to the ranges in Smith and Villegas. The shots were all fired toward the rear of the vehicle. As we discuss, the trial testimony and photographic evidence permits the inference of an intent to kill both victims.

We have reviewed the People's trial exhibits Nos. 3, 7, and 8, which were transmitted at our request. (See Cal. Rules of Court, rules 8.224(d) [transmission of exhibits] and 8.320(e) [exhibits admitted in evidence are deemed part of the record in a criminal appeal].) Exhibit No. 3 consists of 17 photographs of victim 1's Jeep Cherokee taken after the shooting. Several of those photos show close-up views of the bullet holes. Exhibit No. 7 consists of 19 photographs of the intersection where the shooting occurred, which appears to be a rural location. Some of these images show the expended shell casings. Exhibit No. 8 is a map of the surrounding area, upon which victim 2 marked the route both vehicles travelled prior to the shooting.

At least two bullets hit the upper right rear side of the Jeep. One or more bullets created a large hole in the middle of the rear windshield. There was an exit hole in the front windshield, level with the rearview mirror and located toward the steering wheel, which victim 1 believed was from the bullet that struck his hand as he was ducking down. There was a bullet hole in the center of a rear passenger seat, just below the headrest, which victim 2 testified was directly behind where he had been sitting. The number of shots and the locations of the bullet holes allowed the jury to reasonably conclude both victims were targeted. (Cf Smith, supra, 37 Cal.4th at p. 743 [single bullet missed both victims "by a matter of inches as it shattered the rear windshield, passed through the [driver's] headrest, and lodged in the driver's side door"].)

Defendant argues the shooter had "no conceivable motive" to kill victim 2. This overlooks the possible motive of eliminating an eyewitness to the shooting. (See, e.g., People v. Rangel 14 (2016) 62 Cal.4th 1192, 1213 [citing examples].) "In any event, '[the California Supreme Court has] never required the prosecution to prove a specific motive before affirming a judgment, even one of first degree murder.'" (People v. Thomas (1992) 2 Cal.4th 489, 519.)

It is immaterial that the prosecutor did not expressly argue this theory of motive. "[T]he prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury." (People v. Perez (1992) 2 Cal.4th 1117, 1126; accord, People v. Clark (2011) 52 Cal.4th 856, 947; cf. People v. Kunkin (1973) 9 Cal.3d 245, 251 [legal theories not presented to the jury cannot be considered in assessing the sufficiency of evidence].)

With regard to premeditation, victim 1 testified the shooter was already aiming his pistol before the Jeep stopped at the Robey Avenue intersection. Victim 2 testified the shooting began as the Jeep was turning right. The expended bullet casings were all located south of the stop sign. This evidence shows there was time for reflection before any shots were fired. (See People v. Osband (1996) 13 Cal.4th 622, 697 ["'Premeditation and deliberation can occur in a brief interval'"].)

In People v. Nelson (2011) 51 Cal.4th 198, a passenger "climbed out onto the [car's] open window frame, braced his arms on the roof, and aimed a pistol" at a passing Jeep. (Id. at p. 206.) He refrained from shooting at the Jeep's driver (referred to in the opinion as John Doe), but only because he suddenly realized there was a police car behind him. He then turned and fired upon the police officers. (Id. at pp. 206, 212.) The California Supreme Court held that "[s]imply pointing his gun at Doe under these circumstances [was] sufficient to support a finding of attempted murder," i.e., the attempted murder of the unidentified motorist. (Id. at p. 212.) Furthermore, the gunman "had ample time to premeditate and deliberate" when he "took up a firearm, climbed out of a moving car, sat on the window frame, reached across the roof, braced himself, and aimed at Doe." (Id. . at p. 213.)

Here, the shooter had additional time for deliberation while the Ford Taurus was traversing Leggett Street, Putnam Avenue, Crestview Street, Olive Avenue, and Hillcrest Street in pursuit of the Jeep. Defendant notes the victims "were total strangers" to the 15 shooter, but irrational behavior does not preclude a finding of premeditation and deliberation. (See People v. Edwards (1991) 54 Cal.3d 787, 814 [affirming premeditation verdict despite no apparent motive for the "random" shooting of two 12-year-old girls], 826 [only "a matter of minutes elapsed from the time defendant first saw them until he shot them"].)

Defendant does not dispute the evidence of his role as the driver. At the second trial, victim 2 identified defendant from the witness stand and testified, "[I don't remember exactly, ] but I believe he was sitting in the front." In response to follow-up questions, victim 2 acknowledged having identified defendant as the driver in prior testimony. This was sufficient to establish defendant was driving the Ford Taurus at the time of the shooting. (See Evid. Code, §§ 770, 1235; People v. Fierro (1991) 1 Cal.4th 173, 221 [evidence of prior inconsistent statements admissible "not only to impeach credibility but also to prove the truth of the matters stated"]; see generally People v. Young (2005) 34 Cal.4th 1149, 1181 ["unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction"].) The jury may have also considered defendant's close relationship to the vehicle's owner and evidence of their shared use of the car.

The attempted murders could not have been committed without defendant's assistance, i.e., his operation of the vehicle. We are not persuaded by the argument the shooter's conduct "took place behind [defendant's] back and there was no reason to believe that [defendant] was aware of it." According to Detective Kirk, victim 2 reported the shooter was originally seated directly behind the driver. The victims' testimony indicated the shots were fired from the opposite side of the car, and victim 1 claimed to have seen the gunman holding the pistol out the window before the Jeep stopped at the intersection. Common experience suggests defendant would have noticed his rear passenger changing seats and lowering a window while the car was moving. 16

Even assuming the window was already open, defendant must have known what was happening during the gunman's firing of eight consecutive rounds. There was no evidence defendant reacted with surprise or repudiation (e.g., pulling away or swerving to affect the shooter's aim). Knowing a crime is being committed and failing to intervene does not establish aiding and abetting, but "these are factors the jury may consider in assessing a defendant's criminal responsibility." (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530; see CALCRIM No. 401 ["If you conclude that defendant was present … or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor"].) It was reasonable for the jury to infer the shooter could not have hit the Jeep with nearly all of his shots without defendant's complicity and assistance. (See In re Jose D. (1990) 219 Cal.App.3d 582, 585 [appellant driver aided and abetted by following victims and maneuvering the car as his passenger aimed a gun at them].)

Victim 2 counted seven bullet holes while reviewing the photographs in People's trial exhibit No. 3. We see at least six.

The remaining issue is defendant's mens rea. "'Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "'Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.'" (Id. at p. 1054.)

The appellant in Nguyen was involved in a drive-by shooting as a passenger seated behind the actual perpetrator. (People v. Nguyen, supra, 61 Cal.4th at p. 1027.) The appellant's vicarious liability for attempted murder was a "close" issue decided by inferences drawn from certain gang evidence. (Id. at pp. 1055-1056.) Defendant argues his case is analogous and presents an even closer issue because there was no gang rivalry 17 motive. He disregards the critically distinguishing fact of his role as the driver. (See id. at p. 1094, conc. & dis. opn. of Cuéllar, J. ["While the car's driver arguably 'stalked' [the victim's] car prior to the shooting, defendant was not the driver and no other evidence demonstrated that defendant was complicit in or even aware of the nature of the car's maneuvers immediately before the shooting"].)

As discussed, defendant and Garcia were involved in a minor traffic accident with victim 1. Defendant was in his girlfriend's car. According to trial testimony, defendant was "upset" because victim 1 had rear-ended the Ford Taurus. They almost came to blows, and at one point defendant "was holding a large rock over [victim 1's] head."

Garcia knocked victim 1's hat to the ground with a sucker punch, but defendant reportedly handed it back to victim 1 before the parties separated. Defendant thus argues the confrontation ended with him "extending an olive branch." This is a reasonable interpretation of the hat gesture, but that one detail does not objectively outweigh the evidence of defendant's belligerence.

Following the altercation, victim 1 returned to the 8-10 Market and spoke to victim 2. While standing outside, the victims saw the Ford Taurus drive past them. Victim 1 pointed at defendant's vehicle and said to victim 2, "'Look, look, look. There it goes.'"

Defendant quickly met up with the shooter somewhere along Leggett Street and then headed south, i.e., back toward the 8-10 Market. When victim 1's Jeep passed by in the opposite direction, defendant made a sudden U-turn. At that point, according to victim 2, the occupants of the Ford Taurus were animated, "getting up on the seats to look at [victims 1 and 2], trying to make contact with [them]." Defendant proceeded to follow the Jeep along the circuitous route to where the shooting occurred.

It is reasonable to infer victim 2 was perceived as someone victim 1 had recruited to back him up in a further confrontation with defendant and Garcia. Defendant's anger toward victim 1 and his perception of victim 2 as an aggressor would constitute a 18 motive-an irrational one, but a motive nonetheless. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1238 ["the incomprehensibility of the motive does not mean that the jury could not reasonably infer that the defendant entertained and acted on it"]; People v. Lunafelix (1985) 168 Cal.App.3d 97, 102 ["the law does not require that a first degree murderer have a 'rational' motive for killing"].) Defendant argues he was driving "in a normal manner" while following the Jeep, but clearly something he and his companions were doing frightened the victims enough to call 911. Victim 2 testified the brief emergency call was cut short when the shooting began.

The actus reus evidence discussed above is equally probative of defendant's mental state. Defendant's conduct after the shooting is also relevant. (People v. Nguyen, supra, 61 Cal.4th at pp. 1054-1055.) He fled in the opposite direction of the Jeep, which had driven off the road and into a fence, thus displaying no concern for whether the victims were dead or injured.

Defendant summarizes his claim as follows: "The evidence was consistent with a theory that the occupants of the Ford followed the victim's Jeep only for the purpose of intimidation and that the gunman's decision to open fire from the back seat was spontaneous and of his own volition, made without aid or encouragement coming from anyone else." This is not a meritorious position. "The mere possibility of a contrary finding as to defendant's mental state does not warrant a reversal of the guilt judgment." (People v. Brady (2010) 50 Cal.4th 547, 565.)

The California Supreme Court has explained why arguing other "'consistent'" interpretations of the evidence is futile. (People v. Navarro (2021) 12 Cal.5th 285, 306.) "Our task in reviewing the sufficiency of the evidence … is not to weigh the evidence to determine the most likely interpretation." (Id. at p. 306.) "We ask not whether the jury's judgment was the most probable interpretation of the evidence, but simply whether it was a rational one. [Citation]. For the reasons discussed above, we conclude that the jury's judgment here was rational." (Id. at p. 307.) 19

II. Gang Enhancements

Section 186.22 provides for enhanced punishment of gang related crimes. A gang related felony is one "committed for the benefit of, at the direction of, or in association with a criminal street gang." (§ 186.22, subd. (b)(1); see People v. Albillar (2010) 51 Cal.4th 47, 60 [interpreting this language to mean the enhancement applies "'only if the crime is "gang related"'"].) The statute also requires "the specific intent to promote, further, or assist in criminal conduct by gang members." (§ 186.22, subd. (b)(1).)

A criminal street gang is defined as "an ongoing, organized association or group of three or more persons …, having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).)

By enactment of Assembly Bill No. 333 (2021-2022 Reg. Sess.), section 186.22 has new requirements for proving the existence of a criminal street gang. (Stats. 2021, ch. 699, §§ 2-3.) To establish a "'pattern of criminal gang activity, '" the predicate offenses must be shown to have "commonly benefited" the alleged gang, and the common benefit must have been "more than reputational." (§ 186.22, subd. (e)(1).) Also, for purposes of currently charged offenses, the terms "benefit," "promote," "further," and "assist" are now defined to mean providing "a common benefit to members of a gang where the common benefit is more than reputational." (Id., subd. (g).)

The jury made no "common benefit" findings. Were this the only problem with its verdicts, the matter would be remanded "to give the People the opportunity to prove the applicability of the enhancements under the amendments to section 186.22." (People v. Lopez (2021) 73 Cal.App.5th 327, 346.) But as we explain, the evidence was insufficient to show defendant's crimes were gang related under the old law, i.e., that he acted "for the benefit of, at the direction of, or in association with any criminal street gang." (§ 186.22, former subd. (b)(1).) Therefore, the enhancement findings must be reversed 20 and defendant cannot be retried on the gang allegations. (See In re D.N. (2018) 19 Cal.App.5th 898, 902 ["Where the prosecution makes its case under the law as it stood at trial, double jeopardy is not implicated as it would otherwise be where there is evidentiary insufficiency"]; People v. Garcia (2014) 224 Cal.App.4th 519, 526 [reversal of gang enhancement for insufficient evidence precludes retrial].)

A. Additional Background

The People's gang experts testified to the existence of a predominately Hispanic gang known as the Norteños, which was described as being synonymous with the Nuestra Familia prison gang. This gang identifies with the color red and the number 14. Its primary activities reportedly include "shooting at people, homicides, fighting, robbery, drug sales," and other forms of aggravated assault.

According to both experts, Porterville is home to three Norteño subsets. The expert who used the term "subset" defined it as "kind of like a subdivision of that gang." He identified the subsets as "the West Side Poros Gang, the East Side Poros Gang, and the Central Poros Gang." The other expert used the term "cliques," identifying them as "East Side Varrio, Varrio Central Poros and West Side Varrio." The word "Poros" is regional Norteño slang for Porterville.

Only one of the experts was asked about the hierarchy of the "Northern Gang"- another name that was used interchangeably with Norteños and the Norteño Gang. The expert testified:

"[T]he best way to describe it, it's like a military style. For example, here in Porterville we have our younger generation which would [-] sometimes it can be kids in elementary school; most of the time, junior high or early high school [-] which would go by PN or Poros Norte. After that, they decide which [clique] or subset they want to go into. That all depends on friends, family, kind of their influences. So they'll go into either West Side Poros, Central Poros or East Side Poros. There's a higher generation from there which they add the 'varrio' to them. In order to get into the varrio, they have to have some sponsors which is people that will vouch for them. So they have to be trusted, put in work, to get into that area. So once 21 they're in the varrios, there's two leaders I guess. There's one that's a channel and underneath them is the squad leader. One of those from each [clique] will report to the Porterville channel. Porterville channel reports to the South County officer. And it goes up to a regiment commander up into the prison system from there."

To establish a "pattern of criminal gang activity" (§ 186.22, former subd. (e)), the People relied on offenses committed by the Varrio Central Poros subset in September 2008, January 2011, and February 2012. Each incident had resulted in one or more Varrio Central Poros members being convicted of assault in violation of section 245, subdivision (a)(1).

Defendant does not challenge the evidence of his membership in Varrio Central Poros. Briefly summarized, it included his court-ordered registration as a gang member; his self-admission of being "from VCP"; tattoos of the words "central" across his chest and "Poros" across his abdomen; tattoos of one dot underneath his right eye and four dots underneath his left eye (signifying the number 14); similar "dot" tattoos on his hands; and a tattoo of "a big Huelga Bird on his back." Defendant was "a popular rapper within the city of Porterville," and some of his gang-themed music videos and lyrics were shown to the jury.

The gang evidence concerning defendant's known accomplice, Garcia, began with an incident seven years prior to the shooting. In December 2004, he was arrested at a movie theater for using "a black Sharpie" marker to write "SK," "X4," and "Norte" on a wall. When detained, the 14-year-old Garcia allegedly told police, "'I wasn't even going to do that, but they told me to and I did.'"

In May 2006, at age 16, Garcia was among a group of people arrested for joyriding in a stolen vehicle. He was caught wearing white gloves, which suggested his possible involvement in stealing the car. The People's evidence did not indicate the other arrestees were gang members, and the incident was not shown to be gang related. The 22 only relevant detail was the booking officer's notation that Garcia's personal effects had included a red bandana.

In July 2009, nearly three years prior to the events in this case, Garcia "pulled out a knife" while making derogatory statements to another young man. The incident was not shown to be gang related. The victim testified to being a former friend with whom Garcia "had recently had a falling out." During the booking and jail classification process, Garcia allegedly claimed to be a "Northern DO or drop out."

The People's gang expert conceded there was no evidence of Garcia's membership in a Norteño subset. However, the absence of such proof led the expert to conclude Garcia was "part of the Poros Norte Norteno Gang." He said, "Like I explained earlier, the Poros Norte is a younger generation before they decide what route they want to go in."

The expert relied on the 2004 graffiti incident and 2006 joyriding arrest. He opined Garcia's presence in a stolen vehicle was "consistent with gang activity." The expert also assumed the 2009 incident with Garcia's former friend was gang related, remarking that "the brandishing of a knife [is] a normal gang crime." He then added, "It's my opinion it's unlikely that he's a dropout if years later he's still hanging out with [defendant] and other Norteno Gang members." The "other Norteno Gang members" allegation was not explained or substantiated.

The shooting victims had no known gang ties. Victim 1 was a middle-aged field worker (late 50's at the time of trial) with the nickname of "Cowboy" due to his style of dress. Victim 2 was a small business owner in his mid-30's (early 40's at the time of trial). Victim 2 had worn a "blue-and-white checkered short-sleeved button-up shirt" on the day of the shooting, which the prosecutor argued "might at first be something that a Norteno gang member doesn't like" since blue is the identifying color of a rival gang. 23

The implied argument was victim 2 may have been perceived as a rival despite not being associated with any gangs.

The prosecutor described victim 2's shirt as being "like a purplish blue" and also claimed there was "a blue bandanna sort of around his head" in one or more photographs taken during the police investigation. This is the only mention of victim 2 possessing a blue bandana in the record. There was no evidence he was wearing a bandana during or prior to the shooting, nor were any such allegations made.

While posing hypothetical questions based on the trial evidence, the prosecutor asked if it was "possible" the shooting was done at the direction of "the Norteno Gang." The expert responded affirmatively, then explained: "The person who was the shooter could have been directed to do it. … If he doesn't do it, there's going to be consequences. He could get beat up. They could kick him out of the gang. And that's not good."

The prosecutor also asked, "In your expert opinion, do you find the acts that I described to be in association with other gang members?" The expert replied, "Yes. There's three of them together." This response assumed the unidentified man was a gang member despite the prosecutor labeling him a "Norteno associate" in the hypothetical scenario.

The expert was further questioned about hypothetical scenarios in which the crimes were allegedly committed for the benefit of a gang. When asked to assume the only occupants of the Ford Taurus were defendant and Garcia, his response suggested the shooting was done "to instill fear into the community." When the facts were changed to include the third suspect, the expert testified:

"It could benefit all three actually. The whole gang itself will benefit by that by showing that their gang is strong; they're not scared to use violence. The actual shooter, if it's a third person who wasn't involved in the initial contact, he obviously had nothing to do with it. There's no reason why he should be upset at these people and there's no reason why he should shoot, but he's willing to do it, so he's showing that he's bold enough to commit these crimes, so that that elevates his status within the gang." 24

Lastly, the expert was asked if the shooting would "still benefit the Norteno gang" if the victims did not know the perpetrators were Norteños. He responded:

"Yeah. From what I'm getting at with this tweaking of the hypothetical is that, yeah, the victims were shot at, but there was no belief or anything that the suspects were gang members. Okay. Maybe there's no fear instilled in the victims; however, the person who did the shooting, whether it was the third person who came into the car later on, he gains some status and the gang gains a trustworthy soldier. Whoever it was that did the shooting gains some status in that incident. So whether the victims were scared or not of the gang, the gang still is gaining a faithful soldier."

B. Analysis

"Not every crime committed by gang members is related to a gang." (People v. Albillar, supra, 51 Cal.4th at p. 60.) Therefore, proof of a defendant's gang membership "cannot solely support a finding that a crime is gang-related." (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199.) The "gang-related prong" of section 186.22 requires substantial evidence "that the underlying crime was 'committed for the benefit of, at the direction of, or in association with'" a criminal street gang. (People v. Rios (2013) 222 Cal.App.4th 542, 564, quoting § 186.22, former subd. (b)(1).)

There is no evidence defendant acted at the direction of a criminal street gang. The People's expert testified it was possible the shooter was following a gang directive, but "a mere possibility is nothing more than speculation." (People v. Ramon (2009) 175 Cal.App.4th 843, 851.) The closer issue is whether defendant was shown to have acted "in association with" or "for the benefit of a criminal street gang. (§ 186.22, former subd. (b)(1).)

"A crime is committed in association with a gang if the 'defendants relied on their common gang membership and the apparatus of the gang in committing' the charged felonies." (People v. Garcia (2016) 244 Cal.App.4th 1349, 1367, quoting People v. Albillar, supra, 51 Cal.4th at p. 60.) This is often inferable "from the very fact that [a] defendant committed the charged crimes in association with fellow gang members." 25 (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Defendant's gang membership was proven, but the same cannot be said of Garcia and the unidentified suspect.

There was no evidence the unidentified suspect was a gang member, and the expert's assumption of such membership must be disregarded. (See People v. Vang (2011) 52 Cal.4th 1038, 1046 ["Expert testimony not based on the evidence will not assist the trier of fact"].) The People do not argue otherwise. They claim, however, that Garcia was a member of a Norteño subset. Relying on this purported fact, the People contend, "While they were in different subsets, both [defendant] and [Garcia] were Norteño gang members who committed the crimes together."

The expert testified Garcia did not belong to a Norteño subset. The lack of evidence connecting Garcia to a subset allegedly indicated "he was part of the Poros Norte Norteno Gang." However, there was no evidence the Poros Norte group met the statutory definition of a criminal street gang or included members of defendant's gang.

"[T]he criminal street gang that is shown to exist under section 186.22, subdivision (f) must be the same criminal street gang with which the defendant acted in association or sought to benefit in the commission of his crimes." (People v. Franklin (2016) 248 Cal.App.4th 938, 950, citing People v. Prunty (2015) 62 Cal.4th 59, 72-76 & fn. 3.) And "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, at p. 71.) Evidence of shared colors, shared names, and shared symbols, is "not enough." (Id. at pp. 72, 74.)

The People's expert vaguely alleged Poros Norte is part of the Norteño hierarchy but does not constitute a Norteño subset or clique. This testimony was insufficient to prove individuals in the Poros Norte group are in fact members of the same gang to which defendant belonged. (Cf People v. Prunty, supra, 62 Cal.4th at p. 83 [gang expert "simply described the subsets by name, characterized them as Norteños, and testified as 26 to the alleged predicate offenses…. He offered no additional information about their behavior or practices" (fn. omitted)]; People v. Nicholes (2016) 246 Cal.App.4th 836, 848 [reversal for insufficient evidence "where the gang expert did no more than characterize the relevant individuals as Norteños, explain that Norteños are associated with the Nuestra Familia prison gang, and give general testimony" not linked to the particular groups in question].)

There was no evidence of the primary activities of Poros Norte, nor evidence its members had engaged in a pattern of criminal gang activity. Although Garcia had prior arrests, none of the underlying conduct was shown to qualify as a predicate offense under section 186.22, former subdivision (e). No other members of Poros Norte, past or present, were ever identified.

To recap the evidence, Porterville youths in "elementary school," "junior high," and "early high school" who plan to join a Norteño subset will "go by PN or Poros Norte" prior to deciding "which [clique] or subset they want to go into." The jury was left to guess at what Poros Norte is and how it can be classified. Is it merely a name used by Norteño aspirants and prospects? Trainees? Provisional members? Defendant argues Poros Norte is "a wannabe group that was not established as a criminal street gang, nor was linked to the Norteno hierarchy." We agree there was a deficiency of proof. We need not reach his separate claim that jurors could not reasonably find Garcia, at age 22, was still part of a group whose eldest members were generally alleged to be in their "early high school" years.

"The evidence must demonstrate that an organizational or associational connection exists in fact, not merely that a local [group] has represented itself as an affiliate of what the prosecution asserts is a larger organization." (People v. Prunty, supra, 62 Cal.4th at p. 79.) Even assuming Garcia was part of Poros Norte when the shooting occurred, that does not establish defendant's crimes were committed in association with a member of his own gang. (See, e.g., People v. Franklin, supra, 248 Cal.App.4th at p. 950 [the fact 27 accomplices were members of other gangs held insufficient to support prosecution's "'in association with'" theory].)

We further conclude the evidence was insufficient to show defendant acted for the benefit of a criminal street gang. At the time of trial, expert opinion that a crime "benefited a gang by enhancing its reputation for viciousness [could] be sufficient to raise the inference that the conduct was '[gang related] within the meaning of section 186.22(b)(1).'" (People v. Albillar, supra, 51 Cal.4th at p. 63.) However, as with all expert testimony, such evidence had to be more than speculative or conclusory. (See People v. Prunty, supra, 62 Cal.4th at p. 85 ["purely conclusory" expert testimony is "of no use to the fact finder"]; People v. Marshall (1997) 15 Cal.4th 1, 35 ["mere speculation cannot support a conviction"].)

Defendant aptly relies on People v. Perez (2017) 18 Cal.App.5th 598. The gang expert in Perez "essentially [opined] any shooting by a gang member is gang related because the use of violence enhances the gang member's reputation, and thereby inures to the gang's benefit by instilling fear in the community." (Id. at 610.) The appellate court labeled this a "sweeping generalization untethered … to specific evidence of both prongs of the gang enhancement," and it held "the glaring absence of evidence connecting the shooting to a gang, other than the mere fact the perpetrator was a gang member, leaves the evidence woefully short of the sufficiency needed to sustain the enhancement." (Ibid.)

Although Perez involved a lone actor, it is analogous to this case because of the lack of outward signs of Norteño involvement. (People v. Perez, supra, 18 Cal.App.5th at p. 609.) In other words, no "gang colors, gang clothing, gang accruements, gang signs, gang epithets, [or] help by other gang members." (Id. at pp. 613-614.) As defendant argues, his gang could not benefit from instilling fear in the community if there was no reason for the community to attribute the shooting to his gang. (See People v. Ochoa (2009) 179 Cal.App.4th 650, 662 [reversing gang enhancement where appellant "did not 28 call out a gang name, display gang signs, wear gang clothing, or engage in gang graffiti .... There was no evidence of bragging or graffiti to take credit for the crimes"].)

The case of In re Daniel C. (2011) 195 Cal.App.4th 1350 illustrates the point. There, an alleged "active Norteño gang participant" assaulted a store manager during a botched attempt to steal alcohol. (Id. at p. 1355.) Two Norteño gang members or associates were with the appellant immediately before and after the offense. (Id. at p. 1359.) A gang expert opined "the community would understand that the crime was committed by Norteños, even though appellant and his companions used no gang-related words or gestures, because the perpetrators all wore clothing with red on it." (Id. at p. 1356.) The expert's assumption was rejected by the appellate court:

"[N]othing in the record indicates that appellant or his companions did anything while in the supermarket to identify themselves with any gang, other than wearing clothing with red on it. No gang signs or words were used, and there was no evidence [the victim] or any of the other persons who witnessed the crime knew that gang members or affiliates were involved. Therefore, the crime could not have enhanced respect for the gang members or intimidated others in their community, as suggested by [the expert]." (Id. . at p. 1363.)

The People note victim 2 referred to the perpetrators as "gangsters" during the 911 call. This is immaterial for two reasons. First, victim 2 was unable to provide a factually relevant basis for his assumption. Second, he never claimed to believe or suspect the occupants of the Ford Taurus were Norteño "gangsters" or affiliated with Varrio Central Poros.

Based on years of experience in the car audio industry, victim 2 thought he had "a pretty good eye when it comes to" spotting a gang member. When asked to explain his descriptions of the perpetrators as "gangsters" and "gang-member-looking," he opined gang members are "always young people; wearing either football stuff like that; jerseys or clothes like tank tops and everything like that; you know, long shirts or stuff like that." On cross-examination, he added "[l]ong jerseys" and "hats" to this list of identifiers. 29

There is no evidence defendant, Garcia, or the third suspect wore hats, jerseys, tank tops, football apparel, or oversized clothing at the time of the shooting.

The People's final argument is victim 2 "could have easily identified [defendant], who has four dots tattooed on his face, as a Norteño gang member." This is unfounded. Victim 2 never claimed to have seen defendant's tattoos; he never claimed to be familiar with Norteño symbols or imagery; and he never claimed to believe or suspect defendant was affiliated with the Norteños. The abstract possibility of something happening, without any proof that it happened, is not substantial evidence. (See, e.g., People v. Ochoa, supra, 179 Cal.App.4th at p. 662 ["There was no testimony that the victim saw any of defendant's tattoos"].)

III. Firearm Enhancements

The jury returned true findings on firearm allegations made pursuant to section 12022.53, subdivisions (c) and (e). The reversal of the gang enhancements invalidates these gun enhancements. The reason is the absence of findings of personal and intentional discharge of a firearm.

"Under section 12022.53, a defendant's personal use of a firearm in the commission of a specified felony results in an additional 10-year prison term (§ 12022.53, subd. (b)), personal and intentional discharge of a firearm leads to an additional 20 years (id., subd. (c)), while personal and intentional discharge of a firearm resulting in death or great bodily injury to a person other than an accomplice adds a prison term of 25 years to life (id., subd. (d)) to the sentence for the underlying crime." (People v. Brookfield (2009) 47 Cal.4th 583, 589.)

Section 12022.53, subdivision (e)(1) states: "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in 30 subdivision (b), (c), or (d)." Put differently, the gun enhancements "apply only to personal use or discharge of a firearm in the commission of a statutorily specified offense, but when the offense is committed to benefit a criminal street gang, the statute's additional punishments apply even if, as in this case, the defendant did not personally use or discharge a firearm but another principal did." (People v. Brookfield, supra, 47 Cal.4th at p. 590.)

Because defendant was not found to have personally used or discharged a firearm in the attempted murders, reversal of the gang findings eliminates the only basis for liability under section 12022.53. Therefore, the gun enhancements must also be reversed. (People v. Cornejo (2016) 3 Cal.App.5th 36, 43, 50.)

IV. Jury Instructions

A legally erroneous jury instruction may be challenged for the first time on appeal. (People v. Frazier (2001) 89 Cal.App.4th 30, 35, fn. 3.) Defendant alleges four such errors. The standard of review is de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.)

A. CALCRIM No. 600

The pattern instruction for attempted murder discusses the requirement of a direct but ineffective step toward killing an alleged victim. It includes this statement: "A direct step indicates a definite and unambiguous intent to kill." (CALCRIM No. 600.) Defendant argues this effectively tells jurors the necessary mens rea (intent to kill) is presumptively established "from the actus reus itself." He relies on Sandstrom v. Montana (1979) 442 U.S. 510 (Sandstrom). 31

The relevant paragraph of the instruction reads: "A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt." (CALCRIM No. 600.)

As explained in People v. Holt (1997) 15 Cal.4th 619, the Sandstrom case involved a charge of "'deliberate homicide'" and a jury instruction stating "'"the law presumes that a person intends the ordinary consequences of his voluntary acts."'" (Holt, at p. 679, quoting Sandstrom, at p. 517.) "The impact of that instruction was to relieve the State of Montana of the necessity of proving every element of the crime, i.e., that the defendant acted knowingly or purposefully, and could have had the effect of shifting the burden to the defendant to prove the absence of those elements." (Holt, at p. 679.)

The erroneous language in Sandstrom "unequivocally declared the fact was presumed." (People v. Anderson (1989) 210 Cal.App.3d 414, 429.) Justice Rehnquist's concurring opinion observed that if the instruction had "'merely described a permissive inference,' [citation], it could not conceivably have run afoul" of constitutional mandates. (Sandstrom, supra, 442 U.S. at p. 527.) A so-called Sandstrom error thus occurs when jury instructions falsely state a "mandatory presumption" regarding an element of the offense. (People v. Holt, supra, 15 Cal.4th at p. 679 .)

Defendant alleges the trial court's use of CALCRIM No. 600 violated his right to due process. "In the criminal context, however, a due process challenge to an evidentiary presumption requires us to distinguish between mandatory presumptions, which either can be conclusive or rebuttable, and permissive inferences. [Citation.] Mandatory presumptions will violate due process if they relieve the prosecution of the burden of persuasion on an element of the offense. [Citations.] Permissive inferences violate due process only if the permissive inference is irrational." (People v. Goldsmith (2014) 59 Cal.4th 258, 270.)

"A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action." (Evid. Code, § 600, subd. (a), italics added.) Thus, "a mandatory presumption [is] one which 'tells the trier of fact that it must assume the existence of the ultimate, elemental fact from proof of specific, designated basic facts.'" (People v. Reyes Martinez (1993) 14 Cal.App.4th 32 1412, 1416, quoting People v. Roder (1983) 33 Cal.3d 491, 498.) A permissible inference, on the other hand, "'"leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof."'" (Reyes Martinez, at p. 1416; see Evid. Code, § 600, subd. (b) [defining "inference"].)

"'A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved. Such inferences do not necessarily implicate the concerns of Sandstrom.'" (People v. Mendoza (2000) 24 Cal.4th 130, 180, quoting Francis v. Franklin (1985) 471 U.S. 307, 314.) "The only time an inference relieves the prosecution of its burden of proving guilt beyond a reasonable doubt is where, '"under the facts of the case, there is no rational way the trier could make the connection permitted by the inference."'" (People v. Reyes Martinez, supra, 14 Cal.App.4th at p. 1416.)

The challenged language of CALCRIM No. 600 ("A direct step indicates a definite and unambiguous intent to kill") does not state a mandatory presumption. At most, it is susceptible of being interpreted as allowing the jury to draw inferences of an intent to kill from the actus reus evidence. Case law permits the drawing of such inferences. (See, e.g., Smith, supra, 37 Cal.4th at p. 741 ["it is well settled that intent to kill … [i.e.], the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant's acts"]; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 ["The act of firing toward a victim at a close, but not point blank, range 'in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill'"].)

In People v. Lawrence (2009) 177 Cal.App.4th 547 (Lawrence), our district held "CALCRIM No. 600 correctly states the law." (Id. at p. 557.) In doing so, the appellate panel rejected a challenge to the same language at issue here. The opinion explains: 33

"The instruction as a whole makes it clear that in order to find an attempt, the jury must find two distinct elements: an act and an intent. These elements are related; usually, whether a defendant harbored the required intent to kill must be inferred from the circumstances of the act. [Citation.] Read in context, it is readily apparent the challenged language refers to the act that must be found, and is part of an explanation of how jurors are to determine whether the accused's conduct constituted the requisite direct step or merely insufficient planning or preparation." (Ibid)

In his reply brief, defendant submits it is unclear "whether the claim raised in Lawrence specifically asserted Sandstrom error." Pursuant to the above analysis, the Sandstrom argument does not persuade us that Lawrence was wrongly decided.

B. CALCRIM No. 416

Defendant makes a two-part claim regarding CALCRIM No. 416, which concerns "Evidence of Uncharged Conspiracy." The first sentence of the instruction says, "The 34 People have presented evidence of a conspiracy." Defendant alleges this is argumentative and reduces the People's burden by declaring the unspecified evidence to be indicative of a conspiracy. He separately alleges the trial court "had a sua sponte duty to instruct on the elements of murder in conjunction with the conspiracy instruction."

The instruction given in this case read as follows: "The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy. [¶] To prove that a defendant was a member of a conspiracy in this case, the People must prove that: "1. The defendant intended to agree and did agree with one or more of the other defendants to commit murder; "2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit murder; "3. One of the defendants or all of them committed at least one of the following overt acts to accomplish the murder: followed behind [victim 1] and [victim 2] in their vehicle, obtained a firearm to use, discussed and approved of the murder, caught up to [victim 1's] vehicle to be close enough to fire the firearm, shot at [victim 1] and [victim 2] multiple times. "AND "4. At least one of these overt acts was committed in California. "To decide whether a defendant committed these overt acts, consider all of the evidence presented about the acts. [¶] To decide whether a defendant and one or more of the other alleged members of the conspiracy intended to commit murder, please refer to the separate instructions that I have given you on one or more of those crimes. [¶] The People must prove that the members of the alleged conspiracy had an agreement and intent to commit murder. The People do not have to prove that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit one or more of those crimes. An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crime. [¶] An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself. [¶] You must decide as to each defendant whether he or she was a member of the alleged conspiracy. [¶] Someone who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime is not a member of the conspiracy. [¶] Evidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, by itself, to prove that the person was a member of the conspiracy."

1. First Argument

Defendant's first argument is very similar to one rejected in People v. Williams (2008) 161 Cal.App.4th 705, 709-711 (Williams). The Williams appellant claimed "that CALCRIM No. 416 impermissibly directed the jury to find that a conspiracy existed, reduced the burden of proof, and violated his constitutional rights to a jury trial and due process of law." (Id. at p. 709.) Defendant argues Williams is distinguishable because it involved direct evidence of a conspiracy, whereas here the evidence was entirely circumstantial. We are not persuaded.

The Williams court did not distinguish between direct and circumstantial evidence. The opinion states, in relevant part:

"CALCRIM No. 416 does not direct the jury to find that a conspiracy did exist. Instead, it provides an explicit description of the elements of conspiracy that the prosecution must prove …. [¶] Further, CALCRIM No. 416 includes clear language explaining that it is for the jury to decide whether the prosecution has proved the elements of conspiracy. For example, it instructs the jury that '[t]o decide whether the defendant committed [the requisite] overt acts, [it must] consider all of the evidence presented about the acts.' It further instructs the jury that '[t]o decide 35 whether the defendant and one or more of the other [conspirators] intended to commit [the charged offense], [it must] refer to the separate instructions … on that crime,' etc. Thus, rather than directing the jury to find that a conspiracy existed, CALCRIM No. 416 instructs the jury to decide whether the prosecution proved the elements of a conspiracy as well as whether the defendant was a member of the conspiracy." (Williams, supra, 161 Cal.App.4th at p. 710.)

In his reply brief, defendant says Williams "does not address the issue of whether the preface [i.e., the first sentence of the instruction] was improperly argumentative." He insists "CALCRIM No. 416 relieved the People of the burden of proving an essential link in the chain of circumstantial reasoning." We remain unconvinced. "A jury instruction is improperly argumentative if 'it would invite the jury to draw inferences favorable to [one party] from specified items of evidence on a disputed question of fact, and therefore properly belongs not in instructions, but in the arguments of counsel to the jury.'" (People v. Santana (2013) 56 Cal.4th 999, 1012; see People v. Campos (2007) 156 Cal.App.4th 1228, 1244 ["An instruction is argumentative when it recites facts drawn from the evidence in such a manner as to constitute argument to the jury in the guise of a statement of law"].) Merely stating the prosecution has "presented evidence of a conspiracy" does not make the instruction argumentative.

2. Second Argument

Defendant's second argument concerns the adapted CALCRIM No. 416 instruction used at trial. It stated, in relevant part: "the People must prove…: [¶] 1. The defendant intended to agree and did agree with one or more of the other defendants to commit murder." In a subsequent paragraph, the jury was told, "To decide whether a defendant and one or more of the other alleged members of the conspiracy intended to commit murder, please refer to the separate instructions that I have given you on one or more of those crimes." The trial court provided separate instructions on attempted murder (CALCRIM Nos. 600, 601), but it did not include a murder instruction (e.g., CALCRIM No. 520). 36

"A trial court has a sua sponte duty to instruct on all of the elements of a charged offense [citations], including the mental state required to commit the offense and the union of that mental state and the defendant's act." (People v. Jo (2017) 15 Cal.App.5th 1128, 1160.) Defendant alleges the omission of a murder instruction was prejudicial error. In his words, "Without a definition given for murder, jurors were left to apply their own understanding of the term."

Quoting from People v. Cortez (1998) 18 Cal.4th 1223, at page 1239, defendant argues "[instructions on the basic elements of murder [are] necessary to guide the jury in its determination of whether defendant harbored the requisite dual specific intent for conviction of conspiracy to commit murder." Defendant also relies on People v. Beck and Cruz (2019) 8 Cal.5th 548 (Beck), which notes "'all conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder, '" and "[t]he instructions should make clear that what is required is a conspiracy to commit first degree murder and an intent to commit first degree murder, respectively." (Id. at pp. 641, 642.)

Neither Cortez nor Beck involved reliance on an uncharged conspiracy theory to prove vicarious liability for attempted murder. The issue in Cortez was "failing to instruct the jury on premeditation and deliberation with regard to [a] conspiracy to commit murder charge." (People v. Cortez, supra, 18 Cal.4th at p. 1226.) No error was found because "there is no occasion or requirement for the jury to further determine the 'degree' of the underlying target offense of murder, and thus no need for specific instruction on premeditation and deliberation respecting the conspiracy charge." (Id. at pp. 1226-1227.) It was sufficient for the jury to have been "instructed that murder is 'the unlawful killing of a human being … with malice aforethought,' and malice aforethought was further specifically defined as intent to kill." (Id. at p. 1239.)

In Cortez, the instructions deemed "sufficient to define the elements of the target offense of murder simpliciter in connection with the charged conspiracy … were 37 embodied in attempted murder instructions." (People v. Cortez, supra, 18 Cal.4th at p. 1239, italics added.) The underlying appellate decision was said to have "correctly concluded that, '[w]hile a murder instruction directly tied to the conspiracy charge might have been helpful, … the definition of murder included in the attempted murder instruction was sufficient to communicate to the jury the necessity of a finding of specific intent to kill for a conspiracy to commit murder conviction.'" (Ibid.) Therefore, "'the murder component of the attempted murder instruction operated as a freestanding definition of murder.'" (Ibid.)

In Beck, the appellants were convicted of first degree murder and conspiracy to commit murder. (Beck, supra, 8 Cal.5th at p. 557.) One of several issues on appeal was the conceded error of failing "to instruct the jury that conspiracy to commit murder requires express malice." (Id. at p. 639.) The jury received an erroneous instruction regarding "'conspiracy to commit second degree murder, '" which is a legal impossibility. (Id. at p. 641.) The error was held harmless beyond a reasonable doubt because, "[b]ased on the remaining instructions, the prosecutor's argument, and the jury verdicts … the 'jury necessarily found the defendants guilty of conspiracy to commit murder on a proper theory, i.e., based on express malice or intent to kill.'" (Id. at p. 642.)

Defendant cites Beck as being exemplary of what is required to find harmless error in this context. He argues the present case is distinguishable because murder was not defined in terms of the malice requirement, the prosecutor's closing argument was unhelpful, and the verdicts allegedly did not foreclose the possibility jurors had relied on erroneous legal reasoning.

Addressing his points seriatim, we note defendant also claims Cortez is distinguishable because there the attempted murder instruction defined murder as "'the unlawful killing of a human being … with malice aforethought, '" and explained that malice aforethought means intent to kill. (People v. Cortez, supra, 18 Cal.4th at p. 1239.) Here the jury was instructed on attempted murder with CALCRIM No. 600, which 38 explains the required intent to kill but does not use the word malice. The intent to kill is, of course, synonymous with express malice. (§ 188, subd. (a)(1); People v. Gonzalez (2012) 54 Cal.4th 643, 653.)

"Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) As discussed, the uncharged conspiracy instruction said, "To decide whether a defendant and one or more of the other alleged members of the conspiracy intended to commit murder, please refer to the separate instructions that I have given you on one or more of those crimes." Since both counts alleged the same crime, we are confident the jury referred to the attempted murder instruction. That instruction said "the People must prove … [¶] 1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person." (Italics added.) Defendant suggests the jury relied on its "own ordinary, everyday understanding of the term 'murder, '" but that scenario is contrary to the presumptions regarding juror intelligence and conduct.

Defendant's argument is based on language in CALCRIM No. 200: "Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings." He fails to explain why jurors would have looked to this instruction in response to the directive in CALCRIM No. 416, i.e., "please refer to the separate instructions that I have given you on one or more of those crimes." (Italics added.)

It bears repeating that conspiracy was an uncharged theory presented as an alternative to aiding and abetting liability. Defendant acknowledges the theory was barely even mentioned at trial. The extent of the prosecutor's argument was as follows:

"So the next element is he intended to kill that person. So if the Defendant is the driver, he shared the intent with the shooter. They're obviously working as a conspiracy trying to get close enough to the vehicle to take the best shot. He's also aiding and abetting. So he would be guilty under both theories of liability; conspiracy, aiding and abetting. He knows the shooter intended to kill. And these are things that you can consider." 39

Despite the prosecutor's reference to the "element" of intent to kill, defendant argues the jury could have interpreted the comments "to mean that [he] and the shooter were engaged in a conspiracy to commit a shooting rather than a conspiracy to kill." The argument is at odds with the finding of premeditation and deliberation. Yet defendant further contends "[t]he instructional error was not rendered harmless by the finding of premeditation and deliberation because that finding could have been based on the gunman's state of mind."

The instruction on premeditation and deliberation (CALCRIM No. 601) referred to defendant's mental state. It said nothing about the accomplices. The jury was told:

"If you find the defendant guilty of attempted murder under Count 1 or Count 2, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation.

"The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting."

In parts of his reply brief, defendant cites People v. Petznick (2003) 114 Cal.App.4th 663 for the proposition that jurors can be expected to assume instructional references to "'defendant'" may mean other people involved in the offense. He conspicuously refrains from saying "the defendant," which is how the instruction reads. In Petznick, use of the term "a defendant" in a special circumstance murder instruction was held prejudicially erroneous because "the jury could easily have understood a defendant as referring to any one of the four participants" in the crime. (Id. at p. 686.) Had the instruction said "the defendant," it would have been apparent the reference was to the party on trial. (Ibid.)

Considering the jury asked no questions about this issue, and there being no indication it disregarded the instructions, it is evident the verdicts were based on findings defendant acted with the intent to kill and did so with premeditation and deliberation. Therefore, any error in failing to define murder was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Mayberry (1975) 15 Cal.3d 143, 158 ["failing to instruct on a material issue [can] be cured by 40 examining the verdict in the light of the instructions given and finding that the jury necessarily resolved, although in a different setting, the same factual question that would have been presented by the missing instruction"]; see also Victor v. Nebraska (1994) 511 U.S. 1, 17 ["A fanciful doubt is not a reasonable doubt"].)

C. CALCRIM No. 401

CALCRIM No. 401 is the pattern instruction for aiding and abetting. The relevant portion given to the jury said: "To prove that a defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime[.] [¶]... [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime."

Defendant argues CALCRIM No. 401 "is erroneous when used in the context of attempted murder because it does not require a finding that the aider and abettor acted with the intent to kill." In his view, the instruction "should require either an intent to aid and abet in an express malice murder (rather than an attempted murder) or specify that an intent to kill is required. Otherwise, the instruction misstates the mental element of the offense by omitting the specific intent required to aid and abet in the offense, which is the intent to kill."

Defendant's contentions are not evaluated "under a strict test of whether a 'reasonable juror' could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a 'reasonable likelihood' that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276; 41 accord, People v. Mitchell, supra, 7 Cal.5th at p. 579.) Furthermore, jury instructions "should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258; accord, People v. Barber (2020) 55 Cal.App.5th 787, 798-799.)

CALCRIM No. 401 tracks the holdings of our state Supreme Court and correctly summarizes the law. (See, e.g., People v. Houston (2012) 54 Cal.4th 1186, 1224.) Defendant's theory of juror confusion is unrealistic. Indeed, the finer points of his argument defeat the claim. He submits the instruction is "confusing when the target crime is an attempt because it seems to require a specific intent to aid an unsuccessful crime. Applied literally, it requires knowledge that the perpetrator will try and fail and a specific intent to aid and abet in the failure." Rephrased, "because the actus reus of [attempted murder] is a 'direct but ineffective step toward killing another person,' the specific intent described in [CALCRIM No. 401] is the intent to aid and abet in the commission of an 'ineffective step' rather than the specific intent to aid and abet in the commission of murder with the intent to kill."

In essence, defendant claims the jury may have convicted him of attempted murder despite believing he only intended to aid and abet a nonlethal act of intimidation or acted "with an ambivalent state of mind" regarding the shooter's intent to kill. The argument is not compelling. Again, the instruction explicitly stated the People's burden to prove (1) the shooter "committed the crime," i.e., attempted murder; (2) defendant "knew [the shooter] intended to commit the crime"; and (3) defendant "intended to aid and abet the [shooter] in committing the crime." In a separate instruction (CALCRIM No. 225), jurors were told the People "must prove not only that the defendant did the acts charged, but also that he acted with a particular intent and mental state. The instruction for each crime and allegation explains the intent and mental state required." (Italics added.) The attempted murder instruction (CALCRIM No. 600) identified the required mental state as the intent to kill. We do not perceive "a reasonable likelihood that the 42 trial court's instructions caused the jury to misapply the law." (People v. Mitchell, supra, 7 Cal.5th at p. 579.)

D. CALCRIM No. 252

Trial courts must provide "a correct instruction regarding the intent necessary to commit the [charged] offense and the union between that intent and the defendant's act or conduct." (People v. Alvarado (2005) 125 Cal.App.4th 1179, 1185.) CALCRIM No. 252 is a pattern instruction on the union of act and intent. The version given to the jury began with this prefacing statement: "The crimes or other allegations charged in Count 2 require proof of the union, or joint operation, of act and wrongful intent."

The instruction went on to identify both counts of attempted murder as crimes requiring "a specific intent or mental state." Next came a standard concluding paragraph: "For you to find a person guilty of these crimes ..., that person must not only intentionally commit the prohibited act, but must do so with a specific intent and mental state. The act and the specific intent and mental state required are explained in the instruction for that crime or allegation."

Defendant makes a two-part claim. First, he notes the omission of any reference to count 1 in the prefacing statement. He alleges this not only constitutes a failure to instruct on the required concurrence of act and intent for count 1, but also an implied misstatement that such a finding was not required for count 1.

The instruction was obviously flawed, but it is inconceivable the jury would have acquitted defendant of the attempted murder of victim 1 yet convicted him of the same offense as to victim 2 had the error not occurred. We therefore conclude the error was harmless under any standard of prejudice.

Second, defendant alleges the instruction "was additionally flawed by the failure to include the specific intent required for conspiracy and aiding and abetting relative to Counts 1 and 2." He relies on People v. Campbell (1994) 25 Cal.App.4th 402 at page 43 413, but the support is attenuated at best. The bench notes to CALCRIM No. 252 say instructions on the specific intent required for aiding and abetting and conspiracy are necessary if the charged offenses are general intent crimes, but there is no such guidance for specific intent crimes. In any event, defendant's theory of prejudice is based on the other claims of instructional error we have rejected above. Accordingly, this claim also fails for lack of prejudice. (See People v. Alvarez (1996) 14 Cal.4th 155, 220 [erroneous "instruction on the concurrence of act and 'specific intent'" held harmless because separate murder instruction "substantially covered" same principle]; People v. Hay den (1994) 22 Cal.App.4th 48, 58 [similar harmless error analysis].)

V. Ineffective Assistance of Counsel

Defendant alleges the prosecutor misstated the law during closing argument. There were no related objections. "[M]aking a timely and specific objection at trial, and requesting the jury be admonished ..., is a necessary prerequisite to preserve a claim of prosecutorial misconduct for appeal." (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.) To avoid the forfeiture rule, defendant alleges ineffective assistance of counsel (IAC). (See People v. Lopez (2008) 42 Cal.4th 960, 966 [recognizing the failure to object to alleged prosecutorial misconduct is a ground for arguing IAC on appeal].)

The threshold inquiry is "whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms." (People v. Carter (2003) 30 Cal.4th 1166, 1211.) If it did, the appellant must demonstrate prejudice. (Ibid) "Prejudice requires 'a reasonable probability that a more favorable outcome would have resulted ..., i.e., a probability sufficient to undermine confidence in the outcome.'" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) "The likelihood of a different result must be substantial, not just conceivable." (Harrington v. Richter (2011) 562 U.S. 86, 112; accord, People v. Williams (1988) 44 Cal.3d 883, 937.) 44

"On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.)

The reviewing court "'must indulge a "strong presumption" that counsel's conduct falls within the wide range of reasonable professional assistance.'" (In re Long (2020) 10 Cal.5th 764, 773.) "An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540; accord, People v. Lopez, supra, 42 Cal.4th at p. 966 [noting the record in a direct appeal "rarely shows that the failure to object was the result of counsel's incompetence"].)

With the above principles in mind, we turn to the specific claims.

A. Premeditation and Deliberation

As used in sections 189 and 664, "'"premeditated" means "considered beforehand," and "deliberate" means "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action."'" (People v. Lee (2011) 51 Cal.4th 620, 636.) "However, the requisite reflection need not span a specific or extended period of time. Thoughts may follow each other with great rapidity, and cold, calculated judgment may be arrived at quickly." (People v. Nelson, supra, 51 Cal.4th at p. 213.) "'"The true test is not the duration of time as much as it is the extent of the reflection."'" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

Simply stated, "[premeditation and deliberation do not require much time." (People v. Lenart (2004) 32 Cal.4th 1107, 1127.) To illustrate this point, the prosecutor below analogized to the thought processes of a baseball batter reacting to the pitcher's 45 throw and a motorist reacting to a yellow traffic light. Defendant claims both analogies are improper. We conclude the withholding of objections did not constitute IAC.

1. Background

The following statements were made during the People's closing argument. We have italicized the parts defendant alleges were especially objectionable.

"... So the test really when deciding deliberate is the extent of reflection not the length of the time. And you can consider motive as well.

"So the two examples that I like to use for a test, the first one is baseball. So let's say that you are the batter that comes up to the mound. You're looking at the pitcher. And when the pitcher throws the ball, you have seconds, a short time, to decide. Should I swing? Should I let it go? Is this going to be a strike? Will this be a foul if I swing? Where am I going to be able to hit it? Should I hit it here? Should I hit it here? Should I try to bounce it? What should I do?

"Those are all things that are going on and being deliberated in a very short short time span. That's an example of deliberation. It's not a long period, but you certainly are weighing those options quickly to make a deliberate decision.

"If you don't like sports, I think everyone can relate to this example. You're driving a vehicle and you approach a stoplight. As you're approaching the stoplight, the stoplight is originally green but it switches to yellow. And so as you're coming to the stoplight, you're deciding within a short few seconds time span, you 're deliberating and weighing your options. Right? Am I familiar with this stoplight? Is this a long yellow? There are some stoplights that are long yellows. Is this a short yellow? What's the traffic looking like as I'm approaching? Are there cars coming? Do I think I can go by easily. Are there any cops in the area, a new CHP maybe.

"You're looking around. You're making that decision. Should I go? Should I stop? That is a deliberation; weighing the pros and cons, but making a decision in a short time span.

"Premeditation is essentially you decided to kill [the victims] before acting. And we know that's true because that's why they drove for so long trying to catch up and being able to fire." 46

2. Analysis

Variations of both analogies have long been used by prosecutors throughout the state. Appellate challenges to them have consistently failed. Although no published case has addressed the baseball version, the traffic light analogy was held permissible in People v. Avila, supra, 46 Cal.4th 680; People v. Azcona (2020) 58 Cal.App.5th 504; People v. Son (2020) 56 Cal.App.5th 689; and People v. Wang (2020) 46 Cal.App.5th 1055. In the case of People v. Henderson (2020) 46 Cal.App.5th 533, the appellate court rejected a similar IAC claim without determining the propriety of the analogy. (Id. at pp. 547-551.)

In Wang, the prosecutor's discussion of the traffic light scenario included these statements: "'This happens so quickly. It happens so quickly, but in your mind, you quickly evaluate those things, and you decide and you act. That is premeditation and deliberation. It can happen that fast.'" (People v. Wang, supra, 46 Cal.App.5th at p. 1084.) The appellate court said the analogy and related comments were "not improper." (Id. at p. 1085.) "Consistent with the law, the prosecutor used the traffic light illustration to explain the concept of premeditation and deliberation as a weighing of options that can happen very quickly." (Ibid.) In Son, the appellate court saw "no error in the yellow light example" and further held the prosecutor was not obligated to include a "caveat that going through a yellow light is less serious than murder." (People v. Son, supra, 56 Cal.App.5th at p. 699.)

Defendant claims the analogies are "quintessential examples of hurried and hastily executed decisions" and thus misstate the law. He relies on older cases in which the word "'unhurried'" appears in recitals of dictionary entries for the word "'deliberate.'" (E.g., People v. Bender (1945) 27 Cal.2d 164, 183, quoting Webster's New Internat. Dict. (2d ed. 1941); People v. Thomas (1945) 25 Cal.2d 880, 898 [same].) The cases are inapposite. 47

The issue in Bender, for example, was an instructional error indicating a lethal act could be found deliberate and premeditated "even though it [was] executed in the very moment it [was] conceived, with absolutely 'no appreciable' time for consideration." (People v. Bender, supra, 27 Cal.2d at p. 182.) If jurors "are instructed in that vein, which emphasizes the rapidity with which thoughts may follow each other, fairness requires a further instruction placing at least equal emphasis on [dictionary definitions] of the terms. In other words, while the jury may be told that the brain can function rapidly they must not be misled into thinking that an act can at the same time be hasty, hurried, and deliberate, or impulsive, unstudied, and premeditated." (Id. at p. 185, italics added.)

We do not suggest defendant's trial counsel was precluded from attempting to refute the prosecutor's argument or requesting an admonition. In Son, the defense attorney did not object but argued the yellow light scenario is really an example of impulsive decision making. (People v. Son, supra, 56 Cal.App.5th at p. 698.) Our conclusion is the alleged negligence, i.e., failure to object, was not IAC. (See People v. Thomas, supra, 2 Cal.4th at p. 531 ["[if] the prosecutor did not engage in any prejudicial misconduct[, ] [i]t follows that defense counsel was not ineffective in making no objection"].)

B. Reasonable Doubt

It is improper to suggest to jurors "that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (People v. Centeno (2014) 60 Cal.4th 659, 672 (Centeno), italics omitted.) In Centeno, a prosecutor "told the jury that in reaching its decision it must reject impossible and unreasonable inferences, and only consider reasonable possibilities." (Id. at p. 671.) Those statements were not objectionable, but in further remarks "she confounded the concept of rejecting unreasonable inference with the standard of proof beyond a reasonable doubt." (Id. at p. 673.) 48

The Centeno prosecutor erred by "repeatedly" and "strongly" implying the jury could find the defendant guilty "based on a 'reasonable' account of the evidence." (Centeno, supra, 60 Cal.4th at pp. 671, 673.) "These remarks clearly diluted the People's burden," making it likely jurors were misled "about the applicable standard of proof and how the jury should approach its task." (Id. at pp. 673, 674.)

Defendant claims the prosecutor's rebuttal in this case "mirrors the improper argument that was disapproved in Centeno." We disagree.

1. Background

Defense counsel argued an "abiding conviction," as used in the reasonable doubt instruction, is "something that you're just absolutely sure about." He then described a hypothetical scenario:

"So imagine you got your kids with you and you're like taking them to school in the morning. You pull up to the school and you see there's a big crowd, other parents and kids, and the police have cordoned off the area. And you get out of your car and you go over to the police officer and you say, hey, what's going on here? And the police officer says, oh, nothing. It's no big deal. We're taking down the caution tape here in a second. There was a bomb threat and we looked in like most of the lockers, kind of like checked around, and we think it's fine. Come on in. Are you letting your kids in? They didn't check all the lockers. And you're not asking them to, you know, like open up pencil cases, but did they do a thorough job checking for the evidence? I'll leave it up to you whether you'd let your kids go to school that day."

In rebuttal, the prosecutor criticized the hypothetical and argued the reasonable doubt standard is not easily illustrated through analogies. Her comments were as follows:

"I just want to remind you that as part of being jurors, you all agreed to follow the law. And certainly hold me to my burden. Certainly hold me to my burden of proof of beyond a reasonable doubt. But you also can't raise my burden.

"[Defense counsel] said would you have allowed beyond all absolute doubt letting your kids into school with a possible bomb. Okay, first and foremost, that's not even an accurate example and description of the law…. 49

"… So it's not, oh, will you let your kids into school. Everyone is going to say no. Everyone is going to say no to that. I mean, that's not the law. If there was an example to give, it would be in the jury instruction, but there's not. Because it really is a really short definition[, ] which is an abiding conviction that the charge is true. And when it comes down to assessing that, it's what's reasonable. What is reasonable in a case. That's it. It's not some unobtainable sort of burden, because verdicts come out across this country every day. It's what's reasonable.

"And so, for example, I'm going to give you an example of something that would be unreasonable[:] Conspiracy theories. Okay. Let's say you want to attack a piece of the evidence. Let's say the [photographic lineups]. … Well, how do we know [victim 1 and victim 2] didn't confer with each other for the six-pack photograph lineups? Let's say you're a conspiracy theorist and that's what you come up with back in the jury room. Well, that would not be supported by the evidence and here's why.

"Number one, there was no evidence to suggest that. There was no proof that they even talked to each other. Nothing of that character. Beyond that, if they conspired together to identify these people, it would not be 80 percent sure and it would not be 70 percent sure. It would be 100 percent sure. They would have said I'm 100 percent sure, but they were honest with their assessment and their identification.

"It also would not be true if, let's say, you go, oh, they only picked people with white T-shirts out of that six-pack just like the white T-shirt they saw that day that they described. Not true. Because the Defendant was wearing a black T-shirt in that six-pack photograph lineup.

"So to come up with conspiracy theories like that that aren't supported by the evidence and haven't been argued would be an example of raising the burden. That would be unreasonable. That would not be following the law.

"I'll give you another example. Sympathy. 'I feel sorry for the Defendant because he joined gangs at a young age.' Not following the law. 'I feel sorry for the Defendant's mother because she is a mother and I'm a mother and so I feel sorry for that. I'm going to give the Defendant a free pass and, you know, let's give him a free pass on the attempted murder he just committed.' Not following the law. That would be unreasonable.

"And the law tells you that you must reject unreasonable conclusions. You also cannot consider punishment. That would be an 50 example of not following the law and not going with what a reasonable doubt means."

2. Analysis

The conduct prohibited by Centeno is arguing or implying the People's burden of proof is satisfied if the People's theory of guilt constitutes a reasonable interpretation of the evidence. (Centeno, supra, 60 Cal.4th at pp. 671-673.) Such error did not occur here. A careful reading of the rebuttal shows the prosecutor was saying an acquittal cannot be based on sympathy or fantastical theories unsupported by the evidence. She was trying to provide examples of "raising the burden [of proof]" and "not going with what a reasonable doubt means."

In saying, "when it comes down to assessing that, it's what's reasonable," the prosecutor's use of the word "that" referred to reasonable doubt, not abiding conviction. In other words, the doubt must be reasonable-as opposed to merely possible or imaginary. (See § 1096 ["'It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt'"].) This type of argument is permissible. (Centeno, supra, 60 Cal.4th at p. 672.)

A prosecutor may "urge the jury to '"accept the reasonable and reject the unreasonable"' in evaluating the evidence before it." (Centeno, supra, 60 Cal.4th at p. 673.) She may not imply "that so long as her interpretation of the evidence [is] reasonable, the People [have] met their burden." (Id. at p. 672.) The prosecutor's argument in this case, while hardly a model of clarity, is not analogous to the one in Centeno The intended message was accurate: "'The prosecution must prove the case 51 beyond a reasonable doubt, not beyond an unreasonable doubt.'" (Centeno, at p. 672, quoting People v. Romero (2008) 44 Cal.4th 386, 416.) Therefore, defendant's attorney could have reasonably concluded the remarks did not warrant an objection. (See People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile"].)

The prosecutor in Centeno "asked the jury to consider the following: 'Is it reasonable to believe that a shy, scared child who can't even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the defendant guilty?' … 'Is it reasonable to believe that there is an innocent explanation for a grown man laying on a seven year old? No, that is not reasonable. Is it reasonable to believe that there is an innocent explanation for the defendant taking his penis out of his pants when he's on top of a seven-year- old child? No, that is not reasonable. Is it reasonable to believe that the defendant is being setup in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he ['s] good for it? That is what is reasonable. He's good for it.'" (Centeno, supra, 60 Cal.4th at pp. 671-672.)

C. Presumption of Innocence

"The presumption of innocence continues during the taking of testimony and during jury deliberations until the jury reaches a verdict." (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159 (Cowan), citing People v. Arlington (1900) 131 Cal. 231, 235.) In Cowan, a prosecutor misstated the law by arguing, "'Let me tell you that presumption [of innocence] is over. Because that presumption is in place only when the charges are read. But you have now heard all the evidence. That presumption is gone.'" (Id. at p. 1154.) Defendant claims the prosecutor below made the same error.

The prosecutor's rebuttal argument concluded with these statements:

"And now the time has come. The presumption of innocence that we talked about is gone. You have heard all the evidence. You've heard everything in this case. You've heard that [Garcia has] gone through the court process and has been convicted and now the Defendant's time has come. I'm asking you to find him guilty on all counts and all the special allegations. [¶] Thank you."

The challenged remarks are less analogous to those in Cowan than to those condoned in People v. Booker (2011) 51 Cal.4th 141. In Booker, the prosecutor said, "'I had the burden of proof when this trial started to prove the defendant guilty beyond a reasonable doubt, and that is still my burden. It's all on the prosecution. I'm the prosecutor. That's my job. [¶] The defendant was 52 presumed innocent until the contrary was shown. That presumption should have left many days ago. He doesn't stay presumed innocent.'" (Id. at p. 183.) The Booker prosecutor was held to have "simply argued the jury should return a verdict in his favor based on the state of the evidence presented." (Id. at p. 185.)

In People v. Goldberg (1984) 161 Cal.App.3d 170, a prosecutor had said, "'And before this trial started, you were told there is a presumption of innocence, and that is true, but once the evidence is complete, once you've heard this case, once the case has been proven to you-and that's the stage we're at now-the case has been proved to you beyond any reasonable doubt. I mean, it's overwhelming. There is no more presumption of innocence. Defendant Goldberg has been proven guilty by the evidence. Thank you.'" (Id. at p. 189, italics omitted.) The appellate court viewed those statements as "essentially restating], albeit in a rhetorical manner, the law as reflected in Penal Code section 1096 and CALJIC 2.90 that a 'defendant in a criminal action is presumed to be innocent until the contrary is proved ….'" (Ibid) The Goldberg opinion was discussed with approval in People v. Booker, supra, 51 Cal.4th at page 185.

The problem in Cowan was "the prosecutor did not simply argue that the presumption of innocence had been overcome by the evidence. Instead, she told the jury the presumption ends with the reading of the charges." (Cowan, supra, 8 Cal.App.5th at p. 1160.) In this case, the prosecutor did not say when the presumption of innocence ends. The comment was ambiguous in terms of why the presumption was "gone," but the assertion was tied to the jury's consideration of the evidence. Even assuming an objection was warranted, the comment was "brief and constituted a tiny, isolated part of the prosecution's argument." (People v. Cortez (2016) 63 Cal.4th 101, 133.) Furthermore, the jury was properly instructed on the presumption of innocence and the reasonable doubt standard. For these reasons, prejudicial error has not been shown. (See ibid. [reviewing court "'should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy 53 exhortation, will draw that meaning from the plethora of less damaging interpretations'"]; People v. Mendoza, supra, 24 Cal.4th at p. 173 ["'"[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade"'"].)

VI. Cumulative Error

Under the cumulative error doctrine, "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844; accord, People v. Capers (2019) 7 Cal.5th 989, 1017.) We have rejected most of defendant's claims, so there are few errors to aggregate. Giving due consideration to the collective impact of any errors, we conclude defendant's claim of "cumulative prejudice" is unfounded.

VII. Prior Conviction Finding

The People alleged a prior strike and prior serious felony conviction based on a 2007 conviction of resisting an executive officer (§ 69), which included a section 186.22 gang enhancement. The allegation was submitted to the jury. A true finding was made, but the verdict form did not refer to the gang enhancement. Because of the omission, defendant argues "the sentencing court had no authority [to] increase punishment based on a prior conviction for a serious felony." We disagree. The issue presented is the consequence of a defective verdict form, and any error was harmless beyond a reasonable doubt.

Standing alone, a violation of section 69 is not a serious or violent felony as defined by sections 667.5 and 1192.7. However, pursuant to section 1192.7, subdivision (c)(28), "any felony offense, which would also constitute a felony violation of Section 186.22," qualifies as a "'serious felony.'" In the charging information, defendant was alleged to have been convicted of "PC69 W/186.22" in Amador Superior Court case No. 07CR12606. 54

The verdict form in question reads: "We, the Jury, find the special allegation True that the Defendant was convicted of a felony violation of Penal Code section 69, RESIST EXECUTIVE OFFICER, in case 07-CR-12606, on July 6, 2007, in the Amador County Superior Court." Defendant claims there is no finding of the gang-related nature of the offense and thus no finding of a prior strike and/or prior serious felony conviction. Relying on People v. Eppinger (1895) 109 Cal. 294 (Eppinger) and People v. Gutierrez (1993) 14 Cal.App.4th 1425 (Gutierrez), he further argues the omission implies the jury found the gang portion of the allegation to be untrue.

In People v. Paul (1998) 18 Cal.4th 698, the California Supreme Court explained Eppinger and Gutierrez merely hold "that the prior-conviction finding required by section 1158 cannot be supplied by a verdict upon a substantive offense." (Paul, at p. 708.) In other words, sentencing enhancements cannot be imposed "solely upon the basis of 'guilty as charged' verdicts on the connected substantive offenses." (Id. at p. 709.) Enhancement sentencing is prohibited "in the absence of separate verdicts or findings on the [enhancements] allegations." (Ibid.)

In Gutierrez, a trial judge (sitting as the trier of fact) made no findings regarding prior conviction allegations. At most, the record "reflected] a belated judicial awareness that none had been made." (Gutierrez, supra, 14 Cal.App.4th at p. 1440.) As parenthetically summarized in Paul, the relevant holding of Gutierrez is "defendants may not be sentenced for prior-felony-conviction enhancements in the absence of findings on prior-conviction allegations by the trier of fact." (Paul, supra, 18 Cal.4th at p. 709, citing Gutierrez, at pp. 1439-1440.)

Unlike in Eppinger or Gutierrez, the jury below returned a separate verdict on the special allegation of a prior serious felony conviction. "A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court. It must be upheld when, if so construed, it expresses with reasonable certainty a finding supported by the evidence [citation]." (People v. Radil 55 (1977) 76 Cal.App.3d 702, 710; accord, People v. Paul, supra, 18 Cal.4th at pp. 706-707.)

In Washington v. Recuenco (2006) 548 U.S. 212, the United States Supreme Court held the "[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error." (Id. at p. 222.) Accordingly, such errors may be deemed harmless in the absence of prejudice under the Chapman standard. (Washington v. Recuenco, at pp. 218-220.) In reaching this conclusion, the high court rejected the argument "that applying [a] harmless-error analysis … would '"hypothesize a guilty verdict that [was] never in fact rendered, "' in violation of the jury-trial guarantee." (Id. . at p. 221.)

Defendant's jury received these instructions: "It has already been determined that the defendant is the person named in exhibits 29 [and] 30. You must decide whether the evidence proves that the defendant was convicted of the alleged crime listed below. [¶] The People allege that the defendant has been convicted of: [¶] A violation of PC 69 with PC 186.22(b)(1)(a), on July 6, 2007, in the Amador County Superior, in Case Number 07-CR-12606; [¶] … [¶] You must consider each alleged conviction separately. The People have the burden of proving each alleged conviction beyond a reasonable doubt. If the People have not met this burden for any alleged conviction, you must find that the alleged conviction has not been proved."

The exhibits referenced in the instruction consisted of certified records. They included an abstract of judgment and a plea form signed and initialed by defendant. Not only did the exhibits conclusively establish the fact of the section 69 conviction and the gang enhancement, but the jury heard testimony from the involved officer regarding the circumstances of the offense. As the evidence was uncontroverted, the defect in the verdict form was clearly harmless beyond a reasonable doubt. (Cf People v. Davis (2005) 36 Cal.4th 510, 564 ["even when jury instructions completely omit an element of a crime, and therefore deprive the jury of the opportunity to make a finding on that 56 element, a conviction may be upheld under Chapman where there is no 'record … evidence that could rationally lead to a contrary finding' with respect to that element"].)

VIII. Sentencing Issues

"The trial court is generally required to include all aspects of a judgment in its oral pronouncement of judgment." (People v. Leon (2020) 8 Cal.5th 831, 855.) "The abstract of judgment 'does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize.'" (Ibid., quoting People v. Mitchell (2001) 26 Cal.4th 181, 185.) As such, failure to orally pronounce the disposition of an enhancement constitutes sentencing error. (People v. Bradley (1998) 64 Cal.App.4th 386, 390-391.)

Furthermore, "[imposition of sentence on an enhancement may not be stayed; to do so is an illegal sentence." (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; accord, People v. Lopez (2004) 119 Cal.App.4th 355, 364.) "[T]he only authority for staying an enhancement is California Rules of Court, rule 4.447, which applies when 'an enhancement that otherwise would have to be either imposed or stricken is barred by an overriding statutory prohibition. In that situation-and that situation only-the trial court can and should stay the enhancement.'" (People v. Bay (2019) 40 Cal.App.5th 126, 139.)

The trial court's oral pronouncement of judgment did not mention the gang enhancements or the prior prison term enhancement. In the abstract of judgment, punishment for the prison prior is alleged to have been stayed. In both the oral pronouncement and abstract, as to count 2, punishment for the firearm enhancement and prior serious felony conviction enhancement is purported to have been stayed. These issues are now moot as to the gang and firearm enhancements, but the others warrant further discussion. 57

A. Prior Prison Term Enhancement

Effective January 1, 2020, the one-year enhancement provided for in section 667.5, subdivision (b) is inapplicable to all prior prison terms except those served for a sexually violent offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) This change in the law applies retroactively to nonfinal judgments. (People v. Lopez (2019) 42 Cal.App.5th 337, 341- 342.) Defendant's prior prison term was served for resisting an executive officer. We therefore reverse the finding on this enhancement allegation for insufficient evidence.

B. Prior Serious Felony Conviction Enhancements

The stay of punishment for the section 667, subdivision (a) enhancement in relation to count 2 was unauthorized. (See People v. Lopez, supra, 119 Cal.App.4th at p. 364 ["Ordinarily, an enhancement must be either imposed or stricken 'in furtherance of justice' under Penal Code section 1385"].) On remand, the trial court may "revisit all prior sentencing decisions" in light of the changed circumstances. (People v. Valenzuela (2019) 7 Cal.5th 415, 424-425; e.g., People v. Jennings (2019) 42 Cal.App.5th 664, 682.)

We express no opinion as to how the trial court's sentencing discretion should be exercised. However, the current version of section 1385 mandates "the court shall dismiss an enhancement if it is in the furtherance of justice to do so [unless] dismissal of that enhancement is prohibited by any initiative statute." (Id., subd. (c)(1).) Further guidelines are set forth in section 1385, subdivision (c)(2) through (6). "This subdivision shall apply to sentencings occurring after [January 1, 2022]." (Id., subd. (c)(7); Stats. 2021, ch. 721, § 1; see People v. Sek (2022) 74 Cal.App.5th 657, 674 ["Because any resentencing in this case will take place after Senate Bill No. 81 [(2021-2022 Reg. Sess.)] became effective on January 1, 2022, …the court must apply the new law in any such proceeding"].) 58

DISPOSITION

The true findings on all enhancements alleged pursuant to sections 186.22, 667.5, and 12022.53 are reversed for insufficient evidence. The cause is remanded for resentencing. In all other respects, the judgment is affirmed.

WE CONCUR: HILL, P. J., MEEHAN, J. 59


Summaries of

People v. Balangue

California Court of Appeals, Fifth District
Apr 25, 2022
No. F079271 (Cal. Ct. App. Apr. 25, 2022)
Case details for

People v. Balangue

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTHONY HENRY BALANGUE, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Apr 25, 2022

Citations

No. F079271 (Cal. Ct. App. Apr. 25, 2022)