Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC057942
Jenkins, J.
In this disturbing tale of gang violence, defendants Ricardo Arana and Senituli Penisoni appeal their jury-trial convictions for the first degree murder of Ortega Barnes and attempted murder of Donald Prince, Dellory Crooks and Ray Porter. The prosecution asserted that defendants committed the charged crimes in the course of a drive-by shooting in March 2004, in East Palo Alto. Defendants contend: (1) the trial court erred by refusing to instruct on manslaughter and attempted manslaughter as lesser-included offenses of murder and attempted murder; (2) the trial court erred in excluding evidence of the murder victim’s violent conduct; (3) the trial court erred by admitting evidence of defendants’ gang associations; (4) the trial court erred by failing to give an instruction on accomplice testimony; (5) Officer Ramos offered improper opinion testimony on the veracity of the main prosecution witness; (6) the trial court erred in its attempted murder instruction; and (7) the convictions should be reversed for cumulative error. We affirm.
Procedural Background
In an information filed on February 2, 2005, the San Mateo County District Attorney charged defendants in count 1 with the murder of Ortega Barnes, in violation of Penal Code section 187, subdivision (a). It was further alleged as to both defendants on count 1 that each intentionally discharged a firearm (section 12022.53, subd. (c)); each intentionally discharged a firearm causing great bodily injury to Ortega Barnes (section 12022.53, subd. (d)); each intentionally and with premeditation murdered Ortega Barnes by means of discharging a firearm from a vehicle (section 190.2, subd. (a)(21)); and that each personally used a firearm in the commission of the offense (section 1203.06, subd. (a)(1)). Counts 2-4 charged each defendant with the attempted murder of Donald Prince, Ray Porter and Dellory Crooks, respectively (sections 187, subd. (a) and 664). Counts 2-4 carried firearm allegations as to each defendant (sections 12022.53, subd. (c) and section 1203.06, subd. (a)(1)). Counts 5-7 charged each defendant with assault on Donald Prince, Ray Porter and Dellory Crooks, respectively (sections 245, subd. (a)(2)). Counts 5-7 also carried firearm allegations as to each defendant (sections 12022.5, subd. (a) and section 1203.06, subd. (a)(1)). Count 8 charged defendants with maliciously discharging a firearm at an inhabited and occupied dwelling house and motor vehicle at 243 Wisteria Drive (section 246).
Further statutory references are to the Penal Code unless otherwise noted.
The jury heard opening statements on these charges on May 22, 2006. On June 14, 2006, at the conclusion of the evidence, the people dismissed the assault charges (counts 5-7) in the interests of justice. Thereafter, the jury returned verdicts of guilty on counts 1 (murder) and counts 2-4 (attempted murder) and found all allegations on those counts to be true. The jury also returned a verdict of guilty on count 8 (discharging firearm at occupied dwelling and motor vehicle).
On September 7, 2006, defendants were each sentenced to an indeterminate term of life without possibility of parole on count 1 and a determinate sentence of 45 years on the remaining counts. Defendants Arana and Penisoni filed timely notices of appeal on September 14, 2006.
Facts
The primary witness for the prosecution was Luis Manuel Vargas. At the time of trial, Vargas was 22 years old and had two children with Margarita Osuna, his common-law wife of six years. On Friday March 19, 2004, he went to his mother’s home in East Palo Alto to retrieve his car, a red Mustang that he’d bought about three weeks before from Rigoberto Alvarez. Vargas learned when he bought the Mustang that someone previously shot at Alvarez as he was driving the car. After Vargas retrieved the car and drove the car away from his mother’s house, however, it stalled at a stop sign on Larkspur Street. Suddenly, a car cut in front of his and blocked the road. A young black man got out of the car, put a pistol to Vargas’s head, and asked him if he claimed to be from the “Sac,” a gang associated with Sacramento Street in East Palo Alto. Vargas denied he was from the Sac Street gang. Just at that point, another young black man who knew Vargas pulled up in a white Mustang and began yelling at the man with the gun that Vargas lives in Hayward and does not belong to the Sac. Vargas had never seen the gunman before but knew the other man as a neighbor back when he lived in East Palo Alto. The gunman removed the pistol from Vargas’s head and drove off. Vargas said the other man driving the white Mustang was known in the neighborhood as “Pooh.”
Vargas talked to Pooh for about fifteen minutes, and Pooh told him that there were problems right now between the Sac Street gang and a gang from the Alberni street area. Vargas then drove to Alvaraz’s house to talk to him about getting rid of the red Mustang. Vargas parked in front of Alvarez’s house, but Alvarez was not at home. Just then, two individuals known to Vargas as “Tuli” (defendant Senituli Penisoni) and “Turtle” (defendant Ricardo Arana) stopped to talk to Vargas. Tuli and Turtle were in a blue van that Vargas had seen Tuli driving in the past. Vargas told them he’d almost been killed on account of the red Mustang because someone put a pistol to his head thinking he was a member of the Sac Street gang. Tuli and Turtle asked Vargas what the man looked like. When Vargas told them it was a black man with short hair, they said for sure it must be Dontae. Vargas had never heard of Dontae.
Dontae Hurd was arrested for the murder of Lisa Hernandez, who was shot to death in East Palo Alto on June 21, 2003. Lisa was in the passenger seat of a car driven by her boyfriend, Armando Valencia, known to police as a member of the Sac Street gang. They were parked at a strip mall waiting to pick up Lisa’s sister from work. A man walked up to the car, called out “Yo, Sac Street” and fired. Valencia was hit in the leg and Lisa died from a gunshot to the chest. Valencia described the shooter as a short black male driving a small black car he recognized as associated with the Midtown Hogs, a gang from the Alberini area. Subsequently, Valencia made a statement to Lisa’s sister that Dontae was present but was not the shooter, so the police could take care of Dontae and Sac Street would take care of the shooter. Valencia’s statement resulted in dismissal of charges against Dontae Hurd. Hurd was released around February 22, 2004, and returned to the Alberini district.
Tuli asked Vargas to show him where the incident happened. Vargas got in the passenger seat and Turtle moved to the back seat. When he got into the van, Vargas saw Tuli had a gun right next to his leg. Vargas said he “wasn’t leery” because he’d “always seen them with guns” so it did not surprise him. Moreover, an hour had gone by so he knew no one would be at the place where the incident happened. Vargas directed Tuli towards the stop sign on O’Connor Street where he’d encountered the gunman. After that, Tuli started to go back to Alvararz’s house but then turned right down Wisteria Way. Vargas noticed “a group of black people [who] were talking to a young man that was inside a car. And then Tuli said to Turtle, ‘Look at them niggers.’ ” Vargas said the group of black people could not be seen from O’Connor Street. He did not direct Tuli to turn right down Wisteria Way.
Regarding the shooting, Vargas stated: “It happened very quickly, the van went next to the car and the shooting began.” He recalled hearing two shots just as the van pulled level with the blue car, then he ducked down to his left. Tuli leaned over him and began firing a gun out the passenger side window. From his position, Vargas could see towards the rear and he saw that Turtle was shooting out of the van too. The firing stopped, Tuli pressed the accelerator, and then Vargas got up to see what was happening. He noticed Turtle was still pointing his gun out of the van to the rear. All of the van’s windows were broken.
It seemed to Vargas that Tuli was lost because he made different turns and came back to the same place. No one said anything. They got to Pulgas Street and from there Tuli drove the van to an apartment complex and parked it. Everyone got out of the van and Turtle began to gather up empty shell casings. Vargas heard Tuli call his sister and tell her to report the van stolen. Then Vargas grabbed his hat and walked off in one direction, and Tuli and Turtle walked off in the opposite direction. Vargas saw them throw the casings over a fence next to the freeway. Vargas never spoke to them about the shooting and did not see them again until he appeared in court.
Vargas said he did not have a gun that day and denied firing any shots from the van. Before the shooting, neither Tuli nor Turtle told him they were going to shoot someone, or he would never have gone inside the van. As he walked away from the van, Vargas was nervous thinking about what had just happened. He picked up his car and drove home to Hayward. He called his mother and told her everything that had happened. He also told his wife Margarita about it. Vargas said he was afraid defendants would harm him if he called the police because he knew they were in the Sac Street gang.
The shooting took place in front of a house on Wisteria Way in East Palo Alto, where Dellory Crooks testified he lives with his mother and brings his children, aged 10 and 6, every day after school. Just prior to the shooting, Crooks stated he was out front talking with his friend, 43-year old Donald Prince, who had pulled up partially onto Crooks’s driveway with his vehicle facing into the direction of oncoming traffic. Prince’s friend Sugar Ray Porter was with him in the front-passenger seat of the vehicle. As the group conversed, Ortega Barnes drove down the street in a little four-door Toyota, drew up alongside and parallel to Prince’s car, and joined the others. As the four were chatting, a blue van drew up alongside Barnes’s car. Prince saw the barrel of a gun sticking out of the van and then the shooting began. Crooks, Prince and Porter dove, scrambled and crawled to cover away from the vehicles. Prince was shot in the leg. Barnes was armed and returned fire at the van from his vehicle, but received multiple gunshot wounds to the chest and died shortly thereafter from his injuries.
A P-85 Mark II .9mm Ruger semi-automatic pistol was found in Barnes’s car and it was matched to 13 casings found at the scene.
The prosecution called several other witnesses in its case-in-chief. Clint Powell testified that he pulled his vehicle over on Wisteria because he’d spilled some soda. In his rear-view mirror, he noticed a dark blue minivan coming up behind him. There were at least two people in the van, maybe more—one of two occupants was Hispanic and the other was Samoan or Tongan. Powell described the driver to the police as a Hispanic male adult with a very large build.
Tina Reed testified that she lives on Wisteria Way. She heard some shots while she was out in front of her residence with a group of people. Right after she heard the shots, she saw a van flying through a stop sign at about 45 m.p.h. She noticed the back window and the front-passenger side-window were broken, and saw two persons in the front of the van and one in the rear. Reed thought they were lost because she knew they were heading for a dead-end and would have to come back around to the same stop sign. She saw the van again when it reappeared and described the driver as Mexican, with curly hair in a ponytail, big-shouldered and wearing a red shirt.
The prosecution also called several police officers and crime scene investigators who presented evidence pertinent to their investigation. Evidence thus adduced showed that the shooting was called in to the police at 12:45 p.m. on Friday March 19, 2004. At 1:35 p.m., the police received a call about a blue Ford Arrowstar van parked at the Light Tree Apartment complex on East Bayshore. At 1:45 p.m., defendant’s (Tuli’s) sister, Alice Penisoni, placed a 911 call to report that her blue Ford Arrowstar had been stolen. Sergeants Denton and Lopez of the San Mateo County Sheriff’s Office went to interview Alice Penisoni in response to her 911 call. By that time, police had examined the vehicle at the Light Tree apartment complex, had linked it to the shooting, and were suspicious about the timing of Alice Penisoni’s stolen vehicle report. Also, Denton knew the van was connected with the Penisoni household and had seen Tuli driving it in the past. Upon contacting Alice, Denton challenged her story about the van having been stolen, told her the van had been involved in a shooting in which someone had died, and advised her to tell the truth. Alice testified at trial that her bother Tuli phoned her on the day of the shooting and told her to call 911. Tuli instructed her to tell the police she drove the van to the Stop ‘n Shop on Bayshore and that it was stolen from there. Alice said that Tuli came by the house once on Saturday or Sunday, ate and left, and did not sleep at the house again until he was arrested five days later.
On Sunday evening, police received a call from a female that Luis Vargas may have information about a homicide that occurred on Friday. Police tried unsuccessfully to track the call. On Tuesday March 23, police received a call from the same female subject who identified herself as Margarita Osuna. She stated Luis Vargas was the father of their child, said he was at an address in Hayward and that he was planning on leaving the area. Vargas was not at the address when police responded but was subsequently contacted after a vehicle driven by Rigoberto Alvarez was stopped. Vargas was in the car with Alvarez and Jose Gutierrez. Vargas agreed to talk to the police and was interviewed at length about the events of Friday March 19 by Detective Gary Ramos of the San Mateo County Sheriff’s Office.
Detective Ramos began by asking Vargas what he’d done this past weekend. Vargas seemed nervous. At first he said he was at a friend’s house in Redwood City on Friday. Detective Ramos did not think Vargas was being truthful because “he just seemed to be stumbling around, seemed to be able to forget things on Friday, but not on Saturday or Sunday.” Ramos challenged Vargas’s statements but Vargas insisted he was telling the truth. During a break, officers informed Detective Ramos they had just taken a statement from Vargas’s mother and told Ramos what she had said. Ramos then confronted Vargas, and told him that “either his mother was lying to me or he was lying to me about his involvement.” After that Vargas “just seemed to open up”—he broke down crying and told Ramos he would tell the truth. Detective Ramos said Vargas was “quite concerned that if he did tell us the truth that himself or his family would be harmed.” Vargas identified defendants to Ramos only as Tuli and Turtle, never by their surnames. He described to Ramos what they wore at the time of the shooting, stating that Turtle wore a white T-shirt and dark pants or jeans with a red hat or sweatshirt, and that Tuli wore a black T-shirt and blue jeans. After evaluating the information Vargas provided against what the police already knew about the shooting, Detective Ramos decided Vargas was “more of a witness in the case.” Ramos stated that Vargas was placed into the Witness Protection Program and relocated out of the area around December 2004 after the preliminary hearing.
Several items of evidence recovered from the blue Ford van were also introduced into evidence by the prosecution. A receipt from the Mi Rancho Market dated March 19 at 11:39 a.m. was lying across the ashtray in the front seat of the van. A fingerprint found on the receipt was matched to the left index finger of defendant Ricardo Arana (“Turtle”). Arana’s prints were also found on a plastic bag found inside the van. Detective Ramos went to the market and asked to see surveillance tapes from around that time of day. On the tapes, Arana is seen wearing a white T-shirt and dark pants, purchasing the items shown on the receipt at the time shown on the receipt, and leaving the store carrying the items in a white plastic bag.
Discussion
A. Lesser Included Offenses Instructions
Defendant Arana contends the trial court should have instructed the jury on manslaughter (heat of passion) as a lesser included offense of murder. Similarly, he contends the trial court should have instructed the jury on attempted manslaughter as a lesser-included offense of attempted murder. Defendant Penisoni joins in Arana’s contention.
1. Legal Standards
A trial court must “instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. [¶] [T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury [citations].” (People v. Breverman (1998) 19 Cal.4th 142, 162.) “Substantial evidence” means evidence that would allow a jury composed of reasonable persons to conclude “the lesser offense, but not the greater, was committed.” (Ibid.) Moreover, “[i]n deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury.” (Ibid.) Finally, the trial court’s “sua sponte duty to instruct on lesser included offenses . . . arises even against the defendant’s wishes, and regardless of the trial theories or tactics the defendant has actually pursued.” (Ibid.)
An intentional and unlawful homicide brought about by sudden quarrel or heat of passion is voluntary manslaughter “if the killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘ “ordinary person of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ (Citation.)” (People v. Breverman, supra, 19 Cal.4th at p. 163.) “[F]or voluntary manslaughter, ‘provocation and heat of passion must be affirmatively demonstrated.’ (Citations.)” (People v. Steele (2002) 27 Cal.4th 1230, 1252.)
2. Analysis
Defendants argue substantial evidence of provocation under heat of passion is established by Vargas’s testimony. Vargas testified that as the van drew up alongside Barnes’s vehicle he heard two shots then ducked for cover. On cross-examination, Vargas explained that “[e]verything happened at the same time. When I heard two shots I was bending down and it was then that Tuli . . . was shooting. And the shootout started and I could just hear shots everywhere.” Asked if those first two shots came from outside the van, Vargas answered, “I didn’t know if they came from outside or – I heard the two shots, then Tuli shot, and then I heard all the shots. It was very, everything happened very fast.” Vargas’s testimony, defendant Arana argues, demonstrates that “it was equally likely that Barnes fired the first two shots from the Toyota at the Ford van,” which in turn provides a “classic textbook example of provocation, warranting manslaughter instructions.” This contention is without merit.
For a jury to conclude defendants committed manslaughter rather than murder under their theory, it would have to directly infer from Vargas’s testimony alone that Barnes fired the first two shots. Vargas, however, said only that he could not tell whether the first two shots came from inside or outside the van. To conclude that the first shots came from outside the van on the basis of this testimony alone is not a reasonable inference but mere speculation, which does not constitute substantial evidence. (People v. Cluff (2001) 87 Cal.App.4th 991, 1002 [“By definition, ‘substantial evidence’ requires evidence and not mere speculation. In any given case, one ‘may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.’ (Citations.)”].)
Also, the inference defendants solicit conflicts with all other relevant record evidence on this point. Prince stated he was looking to his right at Barnes (i.e., towards the road and away from the driveway) while Crooks leaned on the driver’s side of his car chatting with Barnes. Then Prince saw a gun barrel sticking out the passenger side of the van and ducked just as the shooting began. Crooks stated that as the van “was pulling up they were shooting” because he saw Barnes “jump . . . as he got hit.” Additionally, forensic evidence showed shots were fired into Barnes’s vehicle through both the rear window and the driver’s side rear-passenger window as the van approached from behind and before it drew level with Barnes’s Toyota.
In sum, Vargas’s testimony does not amount to the substantial evidence required for a manslaughter instruction and the balance of evidence on the issue supports the trial court’s ruling. Accordingly, the trial court did not err by failing to sua sponte instruct on manslaughter and attempted manslaughter.
Our conclusion that the trial court did not err in failing to instruct sua sponte on the lesser included offenses of manslaughter and attempted manslaughter precludes any constitutional claim, either state or federal. (People v. Breverman, supra, 19 Cal.4th at p. 165 [“failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, is thus subject only to state standards of reversibility[,]” and does raise a claim under the federal constitution.].)
B. Evidence of Victim’s Violent Character
1. Background
The People moved in limine to exclude evidence of victim Ortega Barnes’s prior bad acts and criminal record, including evidence of a videotape showing a drive-by shooting several weeks before Barnes was killed. The People asserted in their motion in limine: “In the video, taken from a camera in the front window of an extermination company van, we see a car similar to Mr. Barnes’s, a small blue import, and we see someone shooting out the driver’s side toward an oncoming car that is turning left. No evidence indicates who was driving at the time, the driver of the [extermination company] van made no identification and the driver of the oncoming car could never be found. However, after Mr. Barnes was killed, the gun recovered from his car was matched to the casings recovered from the roadway.” In his response to the People’s in limine motion, Arana asserted without elaboration that “[n]ot only should this evidence [of Barnes violent character as shown by the earlier drive-by shooting] be admitted, but it further shows that there was [or] may be some prior involvement between Barnes and Vargas on a personal level rather than any supposed gang activity.”
At argument on the motion before trial, the court stated that it would defer ruling “until the evidence comes up in the trial and if there is from the defense point of view a belief that Mr. Barnes’s prior record . . . is relevant somehow then the defense can . . . make whatever arguments they want out of the presence of the jury. We can certainly consider that because you’d be right, Mr. [Prosecutor], if it was an alibi defense whether Mr. Barnes had any convictions or not would have no relevance to the case.” Arana’s counsel then acknowledged “that’s fair.”
On the question of the videotape in particular, Arana’s counsel opined that it could also be relevant if it was related to “personal issues between Mr. Vargas and Mr. Barnes,” but added that “again, we don’t necessarily need to take it up at this juncture.” The court reiterated that defense counsel would have to produce some evidence to that effect in order to provide a “tie-in to this case,” but stated that it would not “exclude [the tape] without giving you the opportunity to show that there is some linkage ultimately.”
Defense counsel made no further offer of proof on the relevance of Barnes’s criminal history or the video of the earlier drive-by shooting. However, on the afternoon of May 18, 2006, during the prosecution’s case-in-chief, the trial court took up the prosecution’s motion to admit evidence of defendants’ gang associations in order to show motive for the drive-by shooting. Defense counsel opposed the motion on the grounds it was an attempt to bootstrap gang evidence onto a case based solely on Vargas’s allegedly unreliable testimony. The trial court opined the question was one of “weight of the evidence rather than admissibility” and ruled evidence of defendants’ gang associations would be admitted with an appropriate limiting instruction. Following the court’s ruling on the admission of gang evidence to show motive, the following colloquy took place:
“Arana’s counsel: If I could, your Honor?
Court: Oh, yeah. Sure.
Arana’s counsel: Two things, just going back a little ways. . . . [Secondly], there was the issue the Court had talked about initially with regard to the goose and the gander with regard to what evidence is coming in on our side, what about Mr. Barnes. I don’t know if we addressed that or -
Court: No, I was just saying that I think that in fairness to your clients if the theory of this alleged homicide is that this is a gang-motivated attack then I don’t think it’s fair to try to portray Mr. Barnes as some innocent bystander person that wasn’t himself involved
Arana’s Counsel: Very well.
Court: ― in gang activity.
Arana’s Counsel: Okay.
Prosecutor: I was certainly not going to attempt to paint any unrealistic picture of Mr. Barnes. He was killed while in possession of a firearm shooting as fast as he could at the people who were shooting at him. He had a scale for weighing narcotics in his back pocket. He had another magazine in his pants. I fully accept that will all come out.
Court: And the bullets from an earlier drive by matched his gun from days before? Wasn’t he possibly shooting at a van, or at least his gun was involved in that?
Prosecutor: Correct. My issue with Mr. Barnes in terms of those prior incidents were to exclude them, unless it became a self-defense case. So I think the fact that he had either, you know, prior acts of shooting, violence or what have you is irrelevant unless it’s a self-defense case. I’m not going to argue that he wasn’t a Mid Town [Hog] . . . [and he] obviously had the gun and so forth. But you know, even if I admit it’s his car and was the same gun we can’t tell from the video that it’s him.
Court: Right.
Prosecutor: I think that gets very collateral and extraneous to what the issues about [Barnes] being in a rival gang are.
Court: Well, . . . a trial’s a search for the truth and if the allegations are that [defendants] are doing something to promote the Sac Street gang’s interests at the expense of the Mid Town Hogs, then it should be explained I think that Mr. Barnes was an active member of that gang and the other truthful things that occurred on that day should come out, which is that he was firing back at them, he had other weapons and paraphernalia. [¶] I would agree that the earlier shooting is irrelevant because no one can say with any certainty that’s him and whether or not he has a prior record [may] or not be relevant. . . . So we would have to wait to, if that evolves as the defense then someone can ask to bring a motion to introduce evidence that would be relevant in that sense, does that sound fair?
Prosecutor: Yes. Understood.
Court: Okay. Does that clarify that point for you, Mr. Loukedis?
Arana’s counsel: Yes, it does, your Honor.
2. Analysis
Defendant Arana contends that the trial court erred in excluding evidence of victim Barnes’s violent character. Defendant Penisoni joins in Arana’s contention. We find no error on this point.
First, defendants’ claim fails at the threshold because it was not preserved for appeal. As the colloquies recited above demonstrate, counsel accepted the trial court’s ruling that evidence of Barnes’s alleged involvement in an earlier drive by shooting was irrelevant absent an assertion of self-defense, subject to a further offer of proof that it was relevant on some other basis, such as evidence of a prior personal dispute between Barnes and Vargas. Having failed to make any such further offer of proof, defendants may not object at this point to the exclusion of the evidence. (People v. Ramos (1997) 15 Cal.4th 1133, 1179 [defendant failed to preserve issue for appellate review where he failed to explain relevance of evidence or otherwise establish its admissibility, citing Evid. Code, § 354]; cf. People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on another point by People v. Stansbury (1995) 9 Cal.4th 824, 830 fn. 1 [motion in limine is a “sufficient manifestation of objection to protect the record on appeal” only if, inter alia, it advances a “specific legal ground for exclusion [which is] subsequently raised on appeal and . . . the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context”].)
Defendants now assert, for the first time on appeal, that evidence of Barnes’s criminal record and involvement in another drive-by shooting was relevant and admissible as further support for the idea that Barnes, not defendants, fired the first two shots. However, defendants never presented this theory of relevance to the trial court and may not predicate error on a theory they did not present below. (People v. Panah (2005) 35 Cal.4th 395, 481 [“Since defendant did not seek admission of the testimony as third party culpability evidence, he forfeited any claim that it was improperly excluded for that purpose”]; People v. Sanders (1990) 51 Cal.3d 471, 508, [defendant did not preserve challenge to the validity of the pretrial identification for appeal on grounds not stated in his motion to suppress].)
Even if defendants had preserved the trial court’s in limine ruling for appeal, we would find no error in the trial court’s exclusion of the videotape. The trial court did not admit the videotape as evidence of the victim’s violent conduct because defendants failed either to assert a claim of self-defense or to show it was relevant to another material issue in the case, such as a prior or ongoing dispute between Vargas and the victim that might indicate Vargas had a motive to commit the crime. “A trial court has no discretion to admit irrelevant evidence.” (People v. Honig (1996) 48 Cal.App.4th 289 342-343 [also noting that although trial courts have “wide discretion in determining the relevance of proffered evidence[,] . . . this does not mean that a trial court is required to allow the defendant to define the issues or to introduce evidence without regard to its relevance to the issues defined by law.”].) Accordingly, because defendants failed to establish an evidentiary basis for admission of the videotape, we cannot say the trial court abused its discretion by excluding it. (People v. Frazier (2001) 89 Cal.App.4th 30, 42 [a trial court’s decision to exclude certain evidence will not be disturbed on appeal unless the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice].)
In sum, because defendants failed to show how evidence of the murder victim’s criminal history and alleged involvement in a prior drive-by shooting incident was relevant to any issue in the case, the trial court did not abuse its discretion by ruling the evidence inadmissible. Accordingly, we also reject defendants’ claim that the exclusion of this evidence violated their various rights under the federal constitution. (People v. Prince (2007) 40 Cal.4th 1179, 1243 [rejecting defendant’s claims “ ‘that the trial court’s exclusion of the proffered evidence violated his federal constitutional rights to present a defense, to confront and cross-examine witnesses, and to receive a reliable determination on the charged [] offense [because] [t]here was no error under state law, and we have long observed that, “[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [state or federal constitutional] right to present a defense.” ’ (Citations)”].)
C. Admission of Gang Evidence
1. Background
Before evidence was received at trial concerning defendants’ gang connections and associations, the jury was instructed as follows: “The jury may hear testimony from Deputy Susan Dell’Ara regarding the allegations that one or both of the defendants are members of or affiliated with the Sac Street gang in East Palo Alto. You are to consider this evidence for the limited purpose of establishing possible motive of the defendants or a motive for the shooting of Ortega Barnes. You are not to consider this evidence for any other purpose without further order of this court.”
Dell’Ara testified as an expert in the classification systems as it relates to gang membership. Dell’Ara works for the San Mateo County Sheriff’s Office at the county jail in the administrative unit that classifies inmates when they enter the jail in order to identify special needs and balance the inmate population. Dell’Ara explained that information on gang affiliation is an important factor in inmate classification, enabling inmates to be spread and mixed throughout the facility so that one gang does not build up a power base in the pods. Dell’Ara receives gang-related information from her counterparts in the state prison system because of the movement of inmates between the two systems.
Dell’Ara explained that the largest prison gang is the Northern Structure, which governs and makes the rules for the Nortenos street gang. Nuestra Familia is a branch of the Northern Structure comprising its generals. The Nortenos’ rivals are the Surenos and the larger prison gang for the Surenos is the Mexican Mafia. An active gang member from San Mateo who was associated with the Nortenos would affiliate to the Northern Structure after going from county jail to state prison. In order to affiliate, you have to be sponsored as an associate and then learn rules known as bonds. Bonds are written down in microwriting on “kites” or “willas,” very small pieces of paper that are rolled up, tied with string and passed around among inmates. Kites and willas are considered contraband gang materials.
Dell’Ara identified a kite recovered in the county jail in September or October 2005. She explained that it was a “target list” of inmates housed in the Administrative Segregation (Ad Seg) unit. It listed the inmate’s name, moniker, where the inmate came from, and any areas of physical vulnerability. As to these inmates, the list said “take flight,” meaning assault them at the first opportunity. Guy Ortiz’s name was on this target list along with his cell location and the fact that he is half blind in his left eye. Ortiz came to county jail from the state prison and was placed in Ad Seg unit because he was a dropout from the Northern Structure. He told prison staff when he arrived that he feared for his safety because he had dropped out of the Northern Structure in violation of its rules. Dell’Ara confirmed this because she had seen his name on the previous three or four “Bad News Lists” from state prison. On this basis, Ortiz was placed in protective custody in the Ad Seg unit.
In October 2005, staff members granted a request from two inmates, defendant Arana and Mike Monje, to open their cell so they could pass a magazine to someone else. Ortiz was out of his cell at that time. As soon as their cell door was unlocked, Arana (Turtle) and Monje immediately attacked Ortiz. Arana and Monje were taken from their cells to a disciplinary isolation unit and their cells and belongings were searched. In Arana’s belongings was a business card inscribed with gang related notations listing other prisoners’ movements and contacts. Dell’Ara explained that the Nortenos routinely monitor other inmates in this manner. Also found was a piece of paper inscribed with Aztec writing that Nortenos, according to Dell’Ara, use to write coded letters. In addition, there was a piece of paper listing the names and prison identification numbers of four known Nortenos plus the name, phone number and address for Edgar Rodriguez, a known Sac Street member whose Sac Street tattoos had been previously photographed. Dell’Ara stated that when defendant Arana came to the county jail staff had insufficient information to validate Arana as a Sac Street gang member. After the assault on Ortiz, Arana was classified as a validated Sac Street member.
Dell’Ara further testified that the search of inmate Monje’s belongings after the assault on Ortiz revealed a kite describing the credo of the Nortenos gang and its code of respect. The search also revealed correspondence between Monje and defendant “Tuli” Penisoni. A letter from Tuli to Monje was signed “Love and Respect, Tuli the Tool, East Palo Alto and Respect.” Tuli’s letter says, “Good hearing from you, rogue.” Dell’Ara stated that “rogue’ is a term used specifically by Sac Street members for “homie.” Dell’Ara stated that Monje was a validated Sac Street member and Penisoni was classified as an associate based on who he’s writing to, his crime partner, and who visits him in jail.
Dell’Ara was shown a drawing found in Penisoni’s bedroom following a search of his home prior to his arrest. It depicts a hand signal in which the fingers are positioned to form “XIV,” a gang sign for the Nortenos. This is because XIV relates to the fourteenth letter of the alphabet, N. Every gang has such an identifying hand signal. Finally, Dell’Ara stated that in classifying jail inmates she had become familiar with a street gang in East Palo Alto known as the Midtown Hogs. She knew of Dontae Hurd as an inmate who’d been housed in the county jail. She stated Dontae Hurd was classified at that time as a Midtown Hog.
Additional gang evidence was presented by Detective Gary Ramos. Ramos was asked about names and telephone numbers on a piece of paper found among defendant Arana’s possessions in the wake of the Ortiz assault including the names and numbers related to Velma Randall, Armando Valencia, and Aaron Kelly, known as White Boy. Ramos stated that Velma is married to one of the Randall brothers, both of whom are known Sac Street gang members. Also, Velma Randall was the sister of Armando Valencia, one of the shooting victims in the Dontae Hurd case. Ramos recognized White Boy’s phone number because Alice Penisoni called that number several times in the days following the shooting.
Also on the list were two addresses connected to Luis Vargas, the prosecution witness — a Larkspur Street address where his mother lives and a Hayward address where he lived with Margarita Osuna at the time of the shooting. There was also a phone number for Margarita Osuna. Ramos said he spoke with Margarita and she told him she had never seen defendants, does not know them and they have never been to her house, so there is no reason why Arana should have her information. Also, Detective Ramos stated that defendant Penisoni received five prison visits from known Sac Street gang member Sieoli Pulu between June and September 2004.
2. Analysis
On both joint and separate grounds, defendants Arana and Penisoni contend it was improper to admit the gang evidence against them. We will address each defendant’s contentions in turn. Arana contends admission of the gang evidence was improper because it was based on events occurring after Barnes’s murder. He notes Dell’Ara testified that when he was first admitted to county jail he was not classified as a gang member. Accordingly, he argues, the prosecution improperly used his “post-arrest activities, and post-arrest associations, to try to prove earlier gang motivation.” Arana relies principally on People v. Duran (2002) 97 Cal.App.4th 1448, 1458 (Duran) and People v. Godinez (1993) 17 Cal.App.4th 1363 (Godinez). Duran and Godinez, however, are inapposite in the present context.
In both cases, defendant challenged on appeal the sufficiency of the evidence supporting a sentencing enhancement under section 186.22, which imposes “additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang.” (Duran, supra, 97 Cal.App.4th at p. 1457.) To prove an enhancement under section 186.22, the prosecution must show, inter alia, that the gang’s members “engage in, or have engaged in, a pattern of criminal gang activity.” (Id.) “The statute contains two timing requirements for the offenses used to establish ‘a pattern of gang activity’: the last crime must have occurred within three years of a prior crime, and at least one of the offenses must have occurred after the effective date of the statute.” (Godinez, supra, 17 Cal.App.4th at p. 1368.) However, the statute did not specify whether offenses committed “after the crime for which the defendant is being tried” may serve as predicates for the enhancement. (Ibid.) Godinez, and subsequently Duran, interpreted section 186.22’s “requirements for establishing a ‘pattern of criminal gang activity’ as excluding offenses occurring after the charged offenses for which a defendant is on trial.” (Godinez, supra, 17 Cal.App.4th at p. 1370; Duran, supra, 97 Cal.App.4th at p. 1457.)
By analogy, Arana argues this rule of exclusion should apply to the gang evidence used against him because it too relates to events occurring after the charged offenses. We disagree. The reason Godinez, supra, held that predicate offenses must precede the charged offense was to provide a defendant with “notice, in advance of his conduct, that his acts will fall within the proscription of section 186.22” because “[d]ue process entitles a defendant to notice, before he acts, of the criminality and consequences of his conduct.” (Godinez, supra, 17 Cal.App.4th at p. 1369.) Arana, however, faced no additional punishment on account of his gang associations. Nor is motive—the only basis on which the jury could consider the evidence—an element of the crime of murder that the prosecution is required to prove beyond a reasonable doubt. (People v. Smith (2005) 37 Cal.4th 733, 741-742 [“One may kill with or without a motive and still be found to have acted with express malice.”].) Thus, due process does not prevent evidence of gang association post-dating the time of the offense where it is introduced solely to prove motive.
Arana also contends that even if it was proper to admit gang-related items found in his cell, it was error to admit the gang-related materials possessed by other inmates, such as the “target list,” photos of other inmates’ gang tattoos, and the kite describing the Norteno creed, “without proof that [he] personally possessed, or subscribed to, those gang materials.” Arana offers no governing authority that would support such a restrictive rule of admissibility. To the contrary, relevant evidence is “evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) All the items Arana complains of that were not found in his cell tended to prove his connection to other gang members and thus his own gang association, e.g., the fact that Ortiz was on a target list and Arana attacked him at the first opportunity as instructed on the target list and the fact that inmate Monje, who joined Arana in the unprovoked attack on Oritz, was a validated gang member in possession of the Norteno credo kite.
The two cases cited by Arana are, to say the least, inapposite. In People v. Holt (1984) 37 Cal.3d 436, the Supreme Court found cumulative prejudicial error in a capital case that came down to a “one-on-one credibility contest” (id. at p. 449) between defendant and his accomplice who had earlier pleaded guilty to second degree murder committed in the course of the robbery. Under these circumstances, the court held it was error, inter alia, for the prosecutor to “blacken the character” of defendant’s associates by asking him on cross-examination about their membership in prison gangs where there was no evidence defendant was a gang member. (People v. Holt, supra, 37 Cal.3d at pp. 455-456.) Arana’s reliance on People v. Goodspeed (1972) 22 Cal.App.3d 690 is similarly misplaced. In People v. Goodspeed, defendant appealed a manslaughter conviction on a murder charge because, inter alia, the court excluded evidence that his two codefendants assaulted and robbed a taxicab driver a few days after the homicide: Codefendants pleaded guilty to second degree murder and testified at trial how they tortured and killed the victim under defendant’s direction because he suspected the victim of being a narcotics agent. (People v. Goodspeed, supra, 22 Cal.App.3d at pp. 693-695.) The court of appeal affirmed because proof codefendants “were involved in an assault upon a taxicab driver with intent to commit robbery without instruction or direction from a third person does not tend reasonably to prove they did not act upon the instruction or direction of defendant in mistreating and killing [the victim].” (Id. at pp. 695-696.) Neither case provides authority for the restricted rule of admissibility asserted by defendants here.
In sum, gang association evidence was introduced against Arana for the sole purpose of showing motive for the drive-by shooting. As such, it was relevant (Evid. Code, § 210), admissible (Evid. Code, § 351), and the jury was free to “determine the effect and value of the evidence” on the sole question of motive as instructed by the trial court. (Evid. Code, § 312). Thus, the trial court did not err in admitting the evidence. Moreover, admission of gang association evidence for the restricted purpose of proving motive did not render the trial fundamentally unfair in violation of defendant’s federal constitutional rights to due process. (Estelle v. McGuire (1991) 502 U.S. 62, 75; Walters v. Maass (9th Cir.1995) 45 F.3d 1355, 1357.)
As well as joining in the arguments asserted above, defendant Penisoni also contends the gang evidence against him was weak, consisting only of the drawing of the Norteno hand signal found in his bedroom around the time of his arrest and the correspondence between him and Mike Monje found in Monje’s cell after Monje’s assault on Ortiz. We do not agree this constitutes weak evidence of gang association. Penisoni’s correspondence with Monje, for example, contains explicit gang terms and concepts such as “rogue” and “respect.” Moreover, Penisoni omits to mention Detective Ramos’s testimony that he received five visits from known Sac Street gang member Sieoli Pulu between June and September 2004.
Penisoni contends this evidence was of limited probative value in showing his gang association and outweighed by the danger of undue prejudice given the emotional bias it was likely to provoke. We disagree for the reasons explained above. Gang association evidence adduced at trial implicating both defendants was relevant to why defendants committed the crime. Any danger of undue prejudice was strictly limited by the trial court’s instructions that the evidence could only be considered for motive, and that the jury was not to be influenced by passion or prejudice. Having considered the defendants’ assertions of error regarding the trial court’s admission of gang evidence, we find no error.
D. Accomplice Instruction
Arana contends the evidence established that Vargas was an accomplice to the charged crimes and therefore the trial court erred by failing to instruct the jury sua sponte that his testimony should be viewed with care and caution. Defendant Penisoni joins in Arana’s contention.
Defendants assert Vargas provided the information that instigated the search for Dontae Hurd, that Vargas voluntarily accompanied Penisoni knowing he was armed, knowing defendants habitually carried guns, and knowing they were going to look for the man who had put a gun to his head. Defendants argue this constitutes sufficient evidence Vargas intended to accompany and guide the shooters in an effort to retaliate against the man who threatened him, qualifying him as an aider and abettor. Therefore, according to defendants, the trial court should have instructed the jury on accomplice testimony. (See People v. Horton (1995) 11 Cal.4th 1068, 1114 [“If there is evidence from which the jury could find that a witness is an accomplice to the crime charged, the court must instruct the jury on accomplice testimony.”].) We need not decide, however, whether the trial court erred because any error in this regard was not prejudicial.
“A trial court’s failure to instruct on accomplice liability under section 1111 is harmless if there is ‘sufficient corroborating evidence in the record.’ (Citation.) To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. (Citation.) Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. (Citation.) ‘ “[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citation.]’ (Citation.)” (People v. Avila (2006) 38 Cal.4th 491, 562-563.)
Here, Vargas’s testimony was sufficiently corroborated by independent evidence. The van driven by defendant Tuli Penisoni and abandoned at the Light Tree Apartments was identified as the vehicle involved in the drive-by shooting. Various spent .9 mm casings were found in and around the van, which forensics established as having been fired from the same two .9 mm pistols. A spent casing found beside the murder victim’s (Barnes’s) car was fired from one of those same two .9 mm pistols. Defendant Arana was placed in the van a short time before the shooting because his fingerprints were on the Mi Rancho market receipt found inside the van. His prints were also on a plastic bag found inside the van. The surveillance tape from the market shows Arana in clothing matching the description provided by Vargas. It shows him purchasing the items listed on the receipt later found inside the van, and leaving the store with those items in a white plastic bag like the one found later in the van with his prints on it.
In addition, Vargas’s testimony is corroborated as to Penisoni by the latter’s consciousness of guilt as evidenced by his attempts deceive the police into believing the van had been stolen before the shooting. (People v. Avila, supra, 38 Cal.4th at p. 563 [defendant’s attempt to conceal involvement in crime “implied consciousness of guilt constituting corroborating evidence”].) After abandoning the van, Penisoni phoned his sister Alice and told her to call 911 and lie to the police that she had driven the van to Stop N’ Shop and it had been stolen from there. Further, upon cross-examination at trial, Penisoni admitted that in his letter to Mike Monje (recovered in the search of Monje’s cell) he’d written, “Everything look cool for me and Rick [because] they ain’t got no F.P.’s or no M.W.’s, you dig.” Penisoni admitted he was telling Monje it looks cool for him and Rick because the police had found no fingerprints or murder weapons. In sum, the evidence adduced at trial sufficiently corroborated Vargas’s testimony about the involvement of both defendants in the crime. Therefore, any error in failing to instruct on accomplice liability was harmless.
E. Detective Ramos’s Testimony
Defendant Arana asserts Detective Ramos gave improper opinion testimony at trial when he told the jury about interviewing Vargas and how he came to believe Vargas eventually told the truth in that interview about being present at the shooting. Arana acknowledges that his trial counsel did not object to Detective Ramos’s testimony at trial. However, Arana contends he was prejudiced by his trial counsel’s ineffective assistance in failing to object to Ramos’s alleged opinion testimony. Defendant Penisoni joins Arana in this contention.
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
“ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” [Citations.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decision-making must be evaluated in the context of the available facts.” [Citation.] [¶] In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. [Citations.]’ (Citation.)” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Defendants’ ineffective assistance of counsel claim cannot meet this exacting standard of review.
Ramos’s testimony related to a police interview with Vargas in 2004 during the investigation of the crime. Ramos described the changing nature of Vargas’s responses to questions over several hours during that course of that interview. Ramos said that Vargas at first denied knowing anything about the shooting and claimed he was at a friend’s house that day. Ramos explained why he thought Vargas was not being truthful at that point in the interview based on the manner in which Vargas responded to his questioning. He described how later in the interview Vargas changed his story when confronted with the fact his mother had given a statement to the police and thereafter how Vargas seemed to break down and begin to tell the truth about being present at the shooting. In comparing Vargas’s responses to his questions with what police already knew about the shooting, Ramos came to believe Vargas “was telling me the truth and that he was there.”
There are several possible reasons for counsels’ failure to object to Ramos’s testimony. First, Ramos’s testimony highlighted the fact Vargas lied to the police when initially questioned about his whereabouts on the day of the shooting, making him less credible. Second, Ramos’s opinion that Vargas grudgingly admitted to being in the van was consistent with the defense theory that Vargas and his two friends shot Barnes and that Vargas was lying when he said defendants were in the van. There being a conceivable reason for counsels’ failure to object, defendants’ ineffective assistance of counsel claim must fail. (People v. Jones, supra, 29 Cal.4th at p. 1254.) Even if we could say there was no conceivable reason for counsels’ failure to object, defendants’ claim would still fail for lack of prejudice in light of the evidence, adduced above, which independently corroborated Vargas’s testimony. Thus, we are confident there is no reasonable probability the outcome of the trial would have been different if either counsel had objected to Detective Ramos’s testimony. (Strickland v. Washington, supra, 466 U.S. at p. 694 [to establish prejudice, appellant must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”].)
F. Attempted Murder Instruction
1. Legal Basis for Instruction
The trial court instructed the jury on three counts of attempted murder pursuant to CALJIC No. 8.66.1, as follows: “With respect to the attempted murders alleged in counts II, III, & IV, a person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the “kill zone.” The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim’s vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a “kill zone” zone of risk is an issue to be decided by you.”
CALJIC 8.66.1 (2004 Revision) is derived from People v. Bland (2002) 28 Cal.4th 313 (Bland). (Com. to CALJIC No. 8.66.1 (Spring 2008 ed.) p. 435.) Bland involved a gang-related shooting in which defendant and another man fired into a moving vehicle, killing the driver and wounding both passengers. (Bland, supra, 28 Cal.4th at p. 318.) Defendant was convicted of first degree murder, plus two counts of premeditated attempted murder. The court of appeal reversed his attempted murder convictions because the trial court erroneously instructed the jury on the doctrine of transferred intent. (Ibid.)
The Supreme Court agreed that the specific intent to kill cannot be transferred “from an intended victim to an unintended victim” when the charge is attempted murder (Bland, supra, 28 Cal.4th at p. 326) because to be guilty of attempted murder “the defendant must intend to kill the alleged victim, not someone else.” (Id. at p. 328.) Nevertheless, the Court stated that “a person who shoots at a group of people . . . even if that person primarily targeted only one of them . . . might still be guilty of attempted murder of everyone in the group” under a theory of concurrent intent. (Bland, supra, 28 Cal.4th at p. 329.) The Court explained “that although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the ‘kill zone.’ ‘The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.” (Ibid.)
2. Analysis
(i)
Defendants contend the attempted murder instruction given by the trial court was erroneous because “it’s sloppy wording authorized the jury to presume two necessary elements of the crime, namely, knowledge and specific intent.” Defendant Penisoni joins Arana in this contention. We disagree.
Defendants’ assertion that the instruction allowed the jury to presume specific intent lacks merit. The language of CALJIC No. 8.66.1 as given here accurately reflects the holding in Bland, supra, that a defendant may be convicted of attempted murder on the theory of concurrent intent by creating a kill zone if “the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.” (Bland, supra, 28 Cal.4th at p. 329.) The instruction does not permit a jury to presume specific intent — rather the jury must find that the nature and scope of the attack were such that the perpetrator intended to harm the target by harming everyone in the vicinity of the target.
Furthermore, the evidence here supports an inference of concurrent intent. In Bland, supra, the Court stated the inference was “virtually compel[led]” where the evidence showed “defendant and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone.” (Bland, supra, 28 Cal.4th at pp. 330-331) The facts here are very similar to those in Bland, supra. The only difference is that not all the victims were in the same vehicle, but they were close enough for defendants to create a kill zone when they unleashed a fusillade of semi-automatic fire at them. Prince’s vehicle and Barnes’s vehicle were parked close together facing in opposite directions beside Dellory Crooks’s driveway, and Crooks was standing up and leaning on Prince’s car as he chatted with Barnes. Prince was shot in the leg as he sat in his car. There were three bullet holes in Prince’s car, two in the front of Crooks’s car, and a bullet penetrated the wall to the right of the garage door to his house. Accordingly, as in Bland, supra, we conclude that even if the jury found defendants’ main target was Barnes, it could reasonably have inferred (not presumed) a concurrent intent to kill Prince, Porter and Crooks because defendants “fired a flurry of bullets” at the group at close range and “thereby created a kill zone.” (Id. at 330-331.)
(ii)
Defendants further contend that CALJIC No. 8.66.1 as given erroneously presumes knowledge, i.e., erroneously presumes that defendants knew there were other persons in the vicinity of Barnes, the murder victim. Having reviewed the instruction as given in light of governing case law, we conclude this contention fails.
People v. Vang (2001) 87 Cal.App.4th 554 (Vang) is a gang-violence case which predates Bland, supra. The Bland Court, however, stated that Vang “can be considered a ‘kill zone’ case[] even though [it] d[id] not employ that term.” (Bland, supra, 28 Cal.4th at p. 330.) In Vang, defendants were convicted of 11 counts of attempted murder after they fired multiple rounds from high-powered assault rifles at two separate residences. (Vang, supra, 87 Cal.App.4th at pp. 558, 563.) Defendants contended the evidence was insufficient to show they intended to kill anyone other than one person at each residence, “due to the location of bullets centered around the area where [the intended victim at each residence] could be seen from the street.” (Id. at p. 563.) The Court of Appeal in Vang rejected defendants’ contention, holding that “malice aforethought ‘is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.’ [D]efendants manifested a deliberate intention to unlawfully take the lives of others when they fired high-powered, wall-piercing, firearms at inhabited dwellings. The fact they could not see all of their victims did not somehow negate their express malice or intent to kill as to those victims who were present and in harm’s way, but fortuitously were not killed.” (People v. Vang, supra, 87 Cal.App.4th at p. 564.)
Vang shows a defendant may properly be convicted on multiple counts of attempted murder where the defendant intends to kill a single target by creating a kill zone, even though the defendant is unaware there are other potential victims in the kill zone. (Vang, supra, 87 Cal.App.4th at pp. 564-565.) Under the law of concurrent intent developed pursuant to Vang and Bland, there is no legal requirement that a defendant must be aware of all the potential victims in a kill zone in order to be convicted on multiple counts of attempted murder. (Bland, supra, 28 Cal.4th at p. 329; People v. Vang, supra, 87 Cal.App.4th at p. 564) Accordingly, we conclude the court complied with its duty to instruct the jury on all necessary elements of the offense by giving CALJIC No. 8.66.1.
Defendants offer no legal authority that would support a contrary conclusion.
Moreover, defendants should have requested appropriate “clarifying or amplifying language” if they believed CALJIC No. 8.66.1 should have been tailored to the particular facts of this case. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1156, [“party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language”.) Thus, if defendants believed the state of the evidence called for the jury to decide whether defendants knew there were other people in the vicinity of the intended victim, they should have asked the trial court to modify CALJIC No. 8.66.1 accordingly. Having failed to do so, they have forfeited the issue on appeal. (Ibid.)
In any case, defendants’ assertion that there was no evidence they knew the attempted murder victims were in the kill zone, because Barnes’s car blocked their view of Prince’s car, is unavailing. Rather, there is ample evidence to show defendants knew they were shooting at a group of people. As defendants’ vehicle drove down Wisteria Way, Vargas could see “a group of black people . . . talking to a young man that was inside a car.” He heard Tuli (Penisoni) say to Turtle (Arana), “Look at them niggers” just before the shooting began. Thus, the group was obviously visible to the occupants of the van as it approached, i.e., before the van drew parallel with Barnes’s car. Moreover, the bullet holes in the back windows of Barnes’s car showed that the occupants of the van began shooting before the van drew directly alongside Barnes’s car. In sum, we conclude defendants’ challenge to CALJIC No. 8.66.1 as given has no merit.
Accordingly, we need not address defendant’s contention that the trial court should have instructed the jury with CALCRIM No. 600 instead.
G. Prosecutorial Misconduct
In an argument related to the one above, defendants contend that in closing argument the prosecutor “argued as if” CALJIC No. 8.66.1 allowed a conclusive presumption that if defendants fired at Barnes they intended to kill anyone else in the area. Defendants assert such argument is legally erroneous and therefore constitutes prosecutorial misconduct. Realizing such a claim has been waived for failure to lodge objection below (People v. Turner (2004) 34 Cal.4th 406, 422), defendants assert trial counsels’ failure to object constitutes ineffective assistance of counsel.
To sustain an ineffective assistance of counsel claim, defendant must demonstrate both deficient performance and prejudice. (Strickland, supra, 466 U.S. at p. 687.) Where the record does not reveal the reason for counsel’s lack of objection, counsel’s performance will only be deemed deficient if “there could be no conceivable” reason for counsel not to object. (People v. Jones, supra, 29 Cal.4th at p. 1254.) Defendant’s claim fails on both points.
First, having reviewed that portion of the prosecutor’s argument complained of by defendants, we conclude that viewed overall the prosecutor did not commit error. The thrust of the prosecutor’s remarks was to explain to the jury that even if defendants only had motive to kill Barnes, it could be inferred from the nature of the attack that they intended to kill the other bystanders. The prosecutor’s one slip-of-the-tongue in saying that “we’re going to presume (rather than “we may infer”) that intent to kill Mr. Barnes attaches to all three of these victims” certainly does not amount to prosecutorial misconduct of a constitutional dimension. (People v. Moran (1970) 1 Cal.3d 755, 762 [no misconduct where prosecutor’s inadvertent reference to marijuana in cross-examining defendant was a “slip[] of the tongue”]; People v. Ayala (2000) 23 Cal.4th 225, 283-284 [prosecutorial misconduct violates the federal Constitution if it constitutes a pattern of misconduct so egregious that it renders the trial fundamentally unfair].)
Second, defendant cannot establish prejudice on the basis of the prosecutor’s remarks. CALJIC No. 8.66.1 correctly instructed the jury on attempted murder. The jury was also instructed under CALJIC No. 1.00 to follow the law as instructed by the court “if anything stated by the attorney in their arguments . . . conflicts with [the court’s instructions].” We presume the jury heeded this admonition (People v. Morales (2001) 25 Cal.4th 34, 47), and nothing in the record indicates otherwise. Accordingly, defendant cannot establish a reasonable probability that the verdict would have been different in the absence of the prosecutor’s remark.
Having concluded there was nothing legally defective in CALJIC No. 8.66.1 and that the prosecutor did not misstate the law in his closing argument, we reject defendants’ contention that a combination of these alleged (but non-existent) errors deprived them of a right to a jury trial on any of the elements necessary for attempted murder.
We have considered defendants’ assertions of error individually and cumulatively and find none meritorious. Therefore, we reject their claim that their convictions should be reversed.
Disposition
Judgment as to both defendants is affirmed.
Defendant Ricardo Arana’s request for judicial notice, filed September 11, 2007, raises issues more appropriate for habeas review and is therefore denied.
We concur: Pollak, Acting P. J., Siggins, J.