Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. PA055043 c/w PA054484 Harvey Giss, Judge.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Hurtado.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Juan Carlos Ortega.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Edgar Hurtado and Juan Carlos Ortega appeal from the judgments entered upon their convictions by jury of three counts of premeditated and deliberate attempted murder (Pen. Code, §§ 664/187, counts 1-3), one count of shooting at an inhabited dwelling (§ 246, count 4), and three counts of assault with a deadly weapon (§ 245, subd. (a)(1), counts 6-8). Hurtado also appeals his convictions of two counts of having a concealed firearm in a vehicle (§ 12025, subd. (a)(1), counts 9 & 10), and three counts of carrying a loaded, unregistered firearm (§ 12031, subd. (a)(1), counts 5, 11 & 12). The jury found to be true, as to both defendants, in connection with counts 1 through 3 and 6 through 8, the principal armed with a firearm allegation within the meaning of section 12022, subdivision (a)(1), and, as to Hurtado, in connection with counts 1 through 3, the firearm allegation within the meaning of sections 12022.53, subdivisions (b) and (c), and, as to counts 6 through 8, the firearm allegation within the meaning of section 12022.5, subdivision (a). It also found as to Hurtado, as to counts 1 through 8, that when the charged offenses were committed, he was released from custody on bail or own recognizance within the meaning of section 12022.1. The trial court sentenced Hurtado to three consecutive life terms with the possibility of parole plus 20 years on each for the firearm enhancement in section 12022.53, subdivision (c) and to a determinate term of nine years and Ortega to life with the possibility of parole plus one year.
All further statutory references are to the Penal Code unless otherwise indicated.
Hurtado contends that (1) the trial court prejudicially erred in granting the prosecution’s motion to consolidate the cases against him, (2) the evidence was insufficient to support his convictions of premeditated, attempted murder, and (3) the trial court prejudicially erred in instructing the jury in accordance with the modified “kill zone” instruction, as set forth in CALCRIM No. 600. Ortega contends that (4) his convictions of premeditated attempted murder and assault with a deadly weapon must be reversed because the trial court abused its discretion and deprived him of due process and the right to present a defense by excluding relevant evidence he sought to introduce and limiting his cross-examination of a prosecution witness, and (5) there was insufficient evidence to support his convictions. Each appellant joins in the contentions of the other to the extent they accrue to his respective benefit. (Cal. Rules of Court, rule 8.200(a)(5); People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.) Respondent requests that the abstract of judgment be corrected to correspond to the trial court’s oral pronouncement of judgment.
We affirm with directions.
FACTUAL BACKGROUND
The prosecution’s evidence
The February 4, 2006 incident
We review the evidence in accordance with the usual rules on appeal. (See People v. Autry (1995) 37 Cal.App.4th 351, 358.) On February 4, 2006, at approximately 1:35 a.m., Los Angeles Police Officers John Matassa and his partner, Jose Herrera, made a traffic stop of a white, 1991 Nissan 300ZX, with two people inside, in the area of Kegel Canyon and El Dorado Avenue, in the County of Los Angeles. The Nissan did not immediately pull over, but when it did, both occupants exited. Hurtado, the passenger, was wearing a bulletproof vest.
The officers searched the vehicle and found a loaded .38-millimeter handgun and a loaded nine-millimeter handgun in a hole at the bottom of the seat in which Hurtado had been sitting and a note containing gang writing. The nine-millimeter handgun had a bullet chambered and the hammer cocked. The guns were not registered to Hurtado, and no fingerprints were found on them.
The April 12, 2006 incident
The shooting
Antonio Maldonado testified that on April 12, 2006, at approximately 9:00 p.m., he, Rene Galaviz, and Samuel Morales were leaving Galaviz’s house on Defoe Avenue, a dead end street, in Pacoima, where Galaviz resided with his family. Maldonado lived with his family next door. Morales was Galaviz’s sister’s boyfriend. Ortega was often seen visiting his girlfriend, Vanessa, who was Galaviz’s neighbor.
When they exited the house, Maldonado saw a white SUV driving towards the dead end of the street, make a three-point turn, then return to stop in front of the Galaviz residence. He saw three people inside. One of them asked, “Where are you from?” Maldonado responded, “From nowhere.” Either the driver or front passenger yelled, “Fuck A.F.L., H.K.” “A.F.L.” was a tagging crew. Maldonado then saw movement in the vehicle and a gun on the passenger side. He did not see who actually fired the shots, as he and Galaviz hit the ground. Three or four shots were fired, hitting a tree behind Maldonado and the front door of the Galaviz residence, and shattering a window on a back door. The vehicle then drove away.
At another point, Maldonado also testified that he did not see the gun.
According to Galaviz, only he and Maldonado exited the house. Galaviz first saw a large “creamish colored” vehicle driving slowly away from the dead end of his street. The vehicle stopped in front of his house, and he did not see who did the shooting. He denied telling police that he saw a white vehicle going towards the dead end. Galaviz did not hear anyone say anything before shots were fired and denied telling police that he did. He also denied that he and his friends and the people in the SUV were “mad-dogging” each other, and that a girl named “Lettie” told him she knew he had identified the people who shot at him and that he was going to “get it.”
Morales testified that he was in the house when the shots were fired. Afterwards, he exited the house and saw Galaviz and Maldonado on the ground.
Galaviz’s father, having heard the gunshots, called 911 and described the vehicle used in the shooting as a white SUV, possibly a Ford Explorer, with chrome rims. Later, he spoke with Detective Dena Kendrick about a witness relocation program. After the shooting, the Galaviz family moved from Defoe Avenue.
Apprehension of appellants
At the time of the incident, Officer Joseph Cavestany and his partner, Officer Tom Lunan, received an assault with a deadly weapon radio call, describing the involved vehicle as Galaviz’s father had described it. On their way to Defoe Avenue, they saw a vehicle matching that description. As the officers made a U-turn and proceeded to follow the vehicle, it abruptly pulled to the curb.
The driver and the right rear passenger exited and were ordered to the ground. The driver, appellant Ortega, complied, but the rear passenger, Felipe Ortega, fled and was chased by Officer Lunan. Officers Matassa and Herrera assisted in the foot pursuit, Officer Herrera apprehending him. The front passenger, Hurtado, who was out of custody on bail on charges related to the February 4, 2006 incident, remained in the vehicle and was removed by the officers.
The field showup
Officer Leonard Drayton responded to the scene of the shooting and took Maldonado, Galaviz and Morales to a field showup. They were separately shown the three men who had been in the Explorer. Galaviz and Maldonado identified Ortega as the driver and Hurtado as the shooter, although, at trial, Galaviz denied identifying them. Morales could not identify anyone, as he said he was inside at the time of the shooting, but identified the vehicle as the one that drove by Galaviz’s residence.
Witness statements
After apprehending Felipe Ortega and delivering him to Officer Cavestany, Officers Matassa and Herrera proceeded to Defoe Avenue. There, Officer Matassa interviewed Morales, who told him that he, Galaviz and Maldonado were leaving Galaviz’s house when they saw a white Explorer with chrome wheels, driving slowly on Defoe Avenue. It made a U-turn at the end of the street, came back the other way, and stopped in front of the Galaviz house. Someone inside asked where they were from and Maldonado responded, “From nowhere.” An individual inside yelled, “Fuck A.F.L., H.K.,” and the front passenger displayed a handgun and fired three or fours shots. Morales and his friends hit the ground, and the SUV left. Galaviz and Maldonado gave substantively similar statements to Officer Herrera, but Maldonado identified Hurtado by name as the person who made the comment and pointed the gun.
At trial, Morales denied telling Officer Matassa that a white SUV drove by slowly, made a U-turn, stopped in front of the Galaviz residence and shots were fired from it.
The next day, Detective Kendrick again interviewed Galaviz who gave a statement similar to the one he had given the night before. He also told the detective that A.F.L. stood for “All Fearless,” a tagging crew with which he associated, but was not a member. He later told the detective that while visiting at San Fernando High, a girl named Lettie approached him and said that “the word was out” that he and the other victims had identified a suspect in the shooting and “that they were going to get it.”
Defendants’ statements
At approximately 12:45 a.m. on April 13, 2006, Hurtado gave a signed, handwritten statement to Officer Matassa. In it, he admitted being in the Explorer and driving around. Shots were fired after words were exchanged with individuals who said they were with the A.F.L. tagging crew.
Between 9:00 and 11:00 a.m. that same morning, Detective Kendrick interviewed Hurtado. This interview was not recorded, and no written or signed statement of the interview was taken. Detective Kendrick testified that Hurtado told her that he and friends were visiting a young lady friend of theirs who was a neighbor of the victims. Hurtado was in front of the Galaviz residence when the victims, whom he knew from previous occasions, began to “mad-dog” him, as they had done in the past. He responded by asking where they were from, and they said, “Nowhere.” Hurtado then said “Fuck A.F.L., this is H.K.” He said he fired three shots, and the vehicle he was in then left. Hurtado admitted being a member of H.K., which stood for “Hard Kore,” for three years. A.F.L. was a tagging crew. He said he obtained the gun he used from another member of H.K.
The investigation
Officer Trevin Grant searched the Explorer and recovered a loaded, .40-caliber, Glock handgun, with a chambered round and 11 rounds in the magazine, under the front passenger seat. A pair of gloves was discovered on the floorboard, near the handgun. Two spent casings were found in the vehicle, one on the driver side floorboard and one on the front passenger seat. A can of beer was on the console. Officer Matassa found a spent bullet casing in the street in front of the Galaviz residence.
Forensic evidence
Hurtado’s fingerprints were found on the beer can, and Ortega’s on the driver’s door and the barrel of the handgun found in the Explorer. Gunshot residue tests on the three suspects failed to detect any residue. The shell casings found in the street and inside the Explorer were all fired from the Glock handgun.
The defense’s evidence
In the signed statement Hurtado gave to Officer Matassa, he did not admit being the shooter. Nor did he ever tell the officer that he was.
Enrique Soltero and his family lived on Defoe Avenue. Ortega visited the family several times a week because he was dating Soltero’s daughter and was the brother of Soltero’s son-in-law. On April 12, 2006, Soltero was outside of his residence when he saw a vehicle similar to the suspect vehicle drive up Defoe Avenue, as if looking for a place to park. He heard three or four gunshots and saw the vehicle drive away slowly.
DISCUSSION
I. Consolidation
Hurtado was charged with two counts of having a concealed firearm in a vehicle and two counts of carrying a loaded, unregistered firearm, in connection with the February 4, 2006 incident. He was charged with three counts of attempted murder, one count of shooting at an inhabited dwelling, one count of carrying a loaded, unregistered firearm, and three counts of assault with a deadly weapon in connection with the April 12, 2006 incident, in a separately filed proceeding.
The prosecution moved to consolidate the separately filed charges arising from the February 4, 2006 incident, involving only Hurtado, with the charges arising from the April 12, 2006 incident, involving him and Ortega. Hurtado objected, arguing that there might be a question in this case as to who fired the shots, and the earlier case could prejudice him by informing the jury that he “is no stranger to guns.” Ortega also objected because only Hurtado was involved in the earlier incident, and the jury might incorrectly believe they were jointly involved. The trial court granted the motion, concluding that the two crimes were both possession of weapons offenses and were therefore of the same class of crimes which can be consolidated.
Hurtado contends that the trial court erred in granting the motion to consolidate. He argues that the claims were too dissimilar and unconnected, were not of the same class, and consolidation was prejudicial because the evidence in the earlier case was much stronger. In that case, he had been riding in a car late at night, sitting on top of two hidden, loaded firearms, wearing a bulletproof vest. And there was gang writing in the car. He claims that the gun and gang evidence had a cumulatively prejudicial effect.
Section 954 provides that consolidation of two accusatory pleadings is permissible where they “charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses . . . .” (Italics added.) Consolidation must be evaluated against the backdrop of a legislative preference for joint trials. (People v. Sullivan (2007) 151 Cal.App.4th 524, 557; Alcala v. Superior Court (2008) 43 Cal.4th 1205 [78 Cal.Rptr.3d 272, 287] [consolidation is preferred by law].) It serves the important function of promoting “judicial efficiency.” (People v. Gray (2005) 37 Cal.4th 168, 221.) Hence, the trial court has broader discretion in ruling on consolidation than on the admission of evidence. (Alcala v. Superior Court, supra, at p. 1205 [at p. 287].)
Section 954 states in part: “An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count.”
While Hurtado argues that the consolidated matters meet neither of the two section 954 requirements, we conclude that they meet both. Offenses are of the same class when they possess common attributes. (People v. Leney (1989) 213 Cal.App.3d 265, 269.) Hurtado argues that the consolidated offenses are not of the same class because “[p]remeditated attempted murder is an assaultive crime against a person and carries a life sentence while the crime of carrying a loaded firearm and a firearm concealed in [a] vehicle are weapons offenses which are commonly filed, although not in this case, as misdemeanors.” He ignores that the charges related to the April 12, 2006 incident include a count for carrying a loaded, unregistered firearm, as do the charges in connection with the February 4, 2006 incident. Thus, the same class of weapons offenses was involved in each of the consolidated proceedings.
Consolidation was also proper because the consolidated matters were “connected together in their commission.” (§ 954.) The cases construing this language have uniformly allowed joinder of several offenses for trial, even though they do not relate to the same transaction and were committed at different times and places and against different victims, where there is “‘“a common element of substantial importance in their commission”’” (People v. Alcala, supra, 43 Cal.4th 1205 [78 Cal.Rptr.3d at p. 285] (italics omitted); People v. Lindsay (1964) 227 Cal.App.2d 482, 491-492; People v. Valdez (2004) 32 Cal.4th 73, 119), such as, for example, “the use of a defendant’s home to commit the crime, or commission of several crimes against male juveniles.” (People v. Leney, supra, 213 Cal.App.3d at p. 269.)
In each of the consolidated matters here, Hurtado was cruising in a vehicle with a loaded firearm. In the February 4, 2006 incident, he was stopped in a vehicle in which he was a passenger, with two loaded guns hidden in his car seat and wearing a bulletproof vest. A note referencing the H.K. tagging crew was found in the car, permitting an inference that he was anticipating a gang-related shootout. In the April 12, 2006 incident, before shots were fired, Hurtado was again in a vehicle with a loaded firearm, saw a member of the A.F.L. tagging crew, yelled, “Fuck A.F.L., H.K,” and fired shots, suggesting a gang motivation for the shooting. Officers Matassa and Herrera were involved in both matters. These facts constitute “common elements of substantial importance,” authorizing consolidation.
Having concluded that the statutory requirements for joinder are met, Hurtado must make a clear showing of prejudice to establish that the trial court abused its discretion in granting consolidation. (People v. Mendoza (2000) 24 Cal.4th 130, 160; People v. Ochoa (1998) 19 Cal.4th 353, 409.) He has failed to meet his burden.
We review the trial court’s granting a motion for consolidation for an abuse of discretion. (See People v. Ramirez (2006) 39 Cal.4th 398, 439.) In determining whether there was an abuse, we examine the record before the trial court at the time of its ruling and consider: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. (People v. Mendoza, supra, 24 Cal.4th at p. 161.) “[A] determination of prejudice is a highly individualized exercise, necessarily dependent upon the particular circumstances of each individual case.” (Williams v. Superior Court (1984) 36 Cal.3d 441, 452.)
Some evidence from the February 4, 2006 incident would likely be cross-admissible in the other proceeding. Evidence Code section 1101, subdivision (b) makes evidence of prior conduct admissible on issues other than disposition to commit a crime, such as motivation and intent. The gang writing uncovered in the first incident might well be admissible on the question of Hurtado’s motive to shoot at the victims. He was apparently affiliated with H.K., a tagging crew hostile to A.F.L., to which Galaviz was affiliated. Cross-admissibility dispels prejudice (People v. Alcala, supra, 43 Cal.4th 1205 [78 Cal.Rptr.3d at p. 287]), but the absence of cross-admissibility does not by itself demonstrate prejudice. (People v. Mendoza, supra, 24 Cal.4th at p. 161; § 954.1.) Regardless of whether any evidence is cross-admissible, we conclude that considering all the other factors, there was no undue prejudice to Hurtado from the consolidation.
Neither incident was so inflammatory as to inordinately inflame the jury. In both cases, Hurtado possessed a loaded handgun which he fired on April 12, 2006 and appeared ready to fire on February 4, 2006. In neither case was there any evidence that anyone was hurt or killed. In fact, both incidents appeared similar in intent and motive.
The evidence against Hurtado was strong in each case. In the February 4, 2006 incident, police officers conducting a traffic stop of a vehicle in which he was a passenger found loaded handguns under his seat. In the April 12, 2006 incident, when the Explorer in which Hurtado was riding was stopped, a .40-caliber handgun was recovered under the seat in which he was sitting. Spent bullet casings found in the vehicle and in front of the Galaviz residence were shot from that gun. At a field showup, Galaviz and Maldonado identified Hurtado as the shooter. Hurtado’s written statement admitted that he was in the Explorer when shots were fired. He admitted firing the shots to Detective Kendrick. Given the strength of the evidence in each case, consolidation did not join significantly weaker charges with stronger charges, or weak charges with other weak charges.
Finally, the trial court meticulously and repeatedly admonished the jury when evidence pertaining to the February 4, 2006 incident was being introduced that it could only be considered against Hurtado in connection with the earlier incident. (See People v. Norris (1963) 223 Cal.App.2d 5, 10 [“In the absence of a strong showing to the contrary, it is presumed that instructions limiting the consideration of evidence to one defendant only sufficiently protects the other defendant’s right to a fair trial”].)
The cases relied upon by Hurtado are inapposite. Williams v. Superior Court, supra, 36 Cal.3d 441 and People v. Smallwood (1986) 42 Cal.3d 415, 418-421, disapproved on other grounds in People v. Bean (1988) 46 Cal.3d 919, 939, footnote 8, were both capital cases, distinguishing them from the matter at hand because in such cases a higher degree of scrutiny is required in deciding what charges may be tried together. (See Williams v. Superior Court, supra, at p. 454 [“The final consideration in our analysis is that since one of the charged crimes is a capital offense, carrying the gravest possible consequences, the court must analyze the severance issue with a higher degree of scrutiny and care than is normally applied in a noncapital case”].) Walker v. Superior Court (1974) 37 Cal.App.3d 938 is also distinguishable. There, the Court of Appeal found that the only connection between the charges in the two cases was an unidentified weapon. The connections here are far more significant.
II. Sufficiency of the Evidence
A. Contentions
Hurtado contends that the evidence was insufficient to support his convictions of premeditated and deliberate attempted murder. He argues that there is no substantial evidence that he intended to kill any of the alleged victims or that his actions were premeditated and deliberate, and that “[t]here was no evidence that a gun was drawn before words were exchanged and there was no evidence that the gun shots were directed at any particular person or in any particularized area.”
Ortega contends that there was insufficient evidence to support his convictions. He argues that he was convicted on an aiding and abetting theory, as the jury found that only Hurtado carried an unregistered, loaded firearm and personally used it. There was no evidence Ortega intended to aid and abet in the shooting. Because Hurtado’s actions were violent and spontaneous, Ortega “found himself on the sidelines of a situation where co-appellant went out of control.”
We find no merit to these contentions.
B. Standard of review
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry, supra, 37 Cal.App.4th at p. 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) This standard of review is the same in cases involving circumstantial evidence. (People v. Catlin (2001) 26 Cal.4th 81, 139.)
C. Sufficiency of evidence Hurtado acted willfully with premeditation and intended to kill
Murder is the unlawful killing of a human being with malice aforethought (§ 187), and is first degree murder if committed with premeditation and deliberation. (§ 189.) In order to prove that appellant attempted willful, deliberate and premeditated murder, the prosecution is required to establish that (1) the defendant engaged in a direct but ineffectual act towards the killing of another human being, and (2) committed the act with the specific intent to kill another human being unlawfully. (People v. Lee (2003) 31 Cal.4th 613, 623; People v. Herrera (1999) 70 Cal.App.4th 1456, 1467; In re Gutierrez (1997) 51 Cal.App.4th 1704, 1711; § 188.)
Rarely will the intent of a wrongdoer be proven by direct evidence. (People v. Smith (2005) 37 Cal.4th 733, 741; People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) It must usually be proven by circumstantial evidence. Certain acts of aggression, by their very nature, suggest an intent to kill. (See People v. Smith, supra, at p. 743 [purposefully discharging a lethal firearm at victims in line of fire can support inference of intent to kill]; 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’”]; People v. Lashley, supra, at p. 945.)
There was ample circumstantial evidence to support the jury’s implicit finding that Hurtado intended to kill his victims. He fired three or four rounds from relatively close range. One of the shots hit the front door from which the victims were exiting and another hit a tree behind Maldonado. (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690.) Hurtado had a motive to kill his victims because he believed they were from a rival tagging crew and had been “mad-dogging” him.
There was also sufficient evidence to support the explicit finding that the attempted murder was deliberate and premeditated. Factors to consider in determining whether appellants acted deliberately with premeditation include, among others, facts about, (1) the defendant’s conduct showing prior planning, (2) the defendant’s prior relationship with the victim from which motive can be inferred, and (3) the manner of killing from which the jury could infer that the defendant intentionally tried to kill the victim as part of a preconceived plan to do so in a particular way for a specific reason. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.)
Here, Hurtado was a passenger, with a loaded gun, in a car driving on Defoe Avenue. The presence of the gun suggests planning and anticipation of its possible use. Before confronting his victims, the vehicle in which Hurtado was a passenger turned around in order to be headed away from a dead end, inferentially to prepare for an escape. As the vehicle slowly proceeded down the block, it stopped in front of the Galaviz residence. Hurtado inquired, “Where are you from,” and, when told, “From nowhere,” cursed A.F.L. an adverse tagging crew, then yelled, “H.K.,” and immediately opened fire. There could have been little reason for Hurtado’s inquiry other than to take the action which followed. Moreover, there was evidence that this attack was not random. Galaviz was affiliated with A.F.L., an H.K. rival, and had been “mad-dogging” Hurtado before. Premeditation and deliberation do not necessarily require the passage of time, for “‘[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.’” (People v. Hughes (2002) 27 Cal.4th 287, 371.)
Furthermore, there was no indication that any of the victims provoked the shooting. This is further circumstantial evidence of deliberation and premeditation. (People v. Miranda (1987) 44 Cal.3d 57, 87, disapproved on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4 [“The lack of provocation by the victim leads to an inference that an attack was the result of a deliberate plan rather than a ‘rash explosion of violence’”].) The only action by any of the victims was Maldonado responding to a question posed by Hurtado that he was from “nowhere.” According to Hurtado, one of the victims stared at him in a mean way. Words alone are generally insufficient provocation for physical altercation. (People v. Spurlin (1984) 156 Cal.App.3d 119, 124 [“‘No words of reproach, however grievous, are sufficient provocation to reduce the offense of an intentional homicide from murder to manslaughter’”].) Moreover, Maldonado’s response to Hurtado that he was, “From nowhere” would not cause “‘“an ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than judgment.”’” (People v. Breverman (1998) 19 Cal.4th 142, 163.)
D. Sufficiency of evidence that Ortega aided and abetted
“All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principles in any crime so committed.” (§ 31.) A person is liable for aiding and abetting when, (1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, or encouraging, or facilitating the commission of the crime, that person (3) by act or advice aids, promotes, encourages, or instigates the commission of the crime. (People v. Gibson (2001) 90 Cal.App.4th 371, 386; People v. Beeman (1984) 35 Cal.3d 547, 556 (Beeman).)
The test of whether a person aided or abetted in the commission of an offense is “whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures.” (People v. Villa (1957) 156 Cal.App.2d 128, 134.) It is not necessary that the primary actor expressly communicates his criminal purpose to the defendant, as that purpose may be apparent from the circumstances. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.) In fact, aiding and abetting can be committed “‘on the spur of the moment,’” that is, as instantaneously as the criminal act itself. (Id. at p. 532.) Whether a person has aided and abetted in the commission of a crime is ordinarily a question of fact for the trier of fact. (People v. Herrera (1970) 6 Cal.App.3d 846, 852.)
Ortega posits a factual scenario that supports an inference that he did not aid and abet Hurtado, but was an innocent victim of Hurtado’s spontaneous violence. He claims that he neither knew of Hurtado’s intention to shoot at the victims nor intended to aid Hurtado, but stopped the Explorer in front of the Galaviz residence, looking for a place to park so he could visit his girlfriend. The victims and Hurtado began mad-dogging each other, the victims having a history of such conduct with him. Once the shooting occurred, Ortega drove off because removing Hurtado from the scene was “the best way to diffuse the situation.” But Ortega’s argument was rejected by the jury. Our task is to assess the evidence in the light most favorable to the verdict. (People v. Bolin, supra, 18 Cal.4th at p. 331.) When properly analyzed in that light, the evidence supports Ortega’s convictions based on his aiding and abetting Hurtado.
Ortega was present at the scene of the shooting, as the driver of the vehicle from which the shots were fired. While mere presence at the scene of the crime and failure to take steps to prevent it do not establish one as an aider and abettor (People v. Luna (1956) 140 Cal.App.2d 662, 664), “it is a circumstance which will tend to support a finding that an accused was a principal.” (People v. Laster (1971) 18 Cal.App.3d 381, 388.) Among the other factors to be considered are companionship with the perpetrator, conduct before and after the crime, and flight. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.)
There was ample evidence here that Ortega aided and abetted Hurtado. Ortega was apparently a friend of Hurtado as he claims to have been taking Hurtado to Ortega’s girlfriend’s house. Ortega drove the Explorer down Defoe Avenue toward the dead end, turned around, went back to the Galaviz house and stopped in front of it. (See People v. Le Grant (1946) 76 Cal.App.2d 148, 153, disapproved on another ground in People v. Cox (2000) 23 Cal.4th 665, 675 [concluding that driver of car who pulled over so his passenger could fight with a person in another car with whom the passenger had exchanged words was guilty of the involuntary manslaughter of the person in the other car as an aider and abettor, in part, because “[the driver] was the owner and operator of the automobile from which the challenging remarks emanated [and] [i]t was within his power to have ignored the acceptance of such challenge . . . and to have driven on, thus entirely avoiding the violent and unlawful controversy which he must have known might follow if both such cars stopped”].)
Ortega’s fingerprint was found on the weapon used in the shooting, permitting an inference that he was aware it was in the car. When Hurtado began asking gang-related questions, “Where are you from,” Ortega did not drive away but remained at the scene and said nothing, though it was within his power to drive off. Hurtado fired the gun from the passenger seat, through the driver’s window. As the trial court concluded, Ortega would likely have had to lean out of the way to avoid the line of fire, reflecting his awareness of what was occurring. After the shooting, Ortega fled the scene with Hurtado. “[A]n act which has the effect of giving aid and encouragement, and which is done with knowledge of the criminal purpose of the person aided, may indicate that the actor intended to assist in fulfillment of the known criminal purpose.” (Beeman, supra, 35 Cal.3d at pp. 558-559.)
III. CALCRIM No. 600
The jury was instructed on the “kill zone” theory of attempted murder in accordance with modified CALCRIM No. 600. Appellants did not object.
CALCRIM No. 600 as given, states in its entirety: “Each defendant is charged in Counts 1-3 with attempted murder. To prove that a defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant took at least one direct but ineffective step toward killing another person; AND [¶] 2. The defendant intended to kill that person. [¶] 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. [¶] A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing the murder, then that person is not guilty of attempted murder. [¶] A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or ‘kill zone.’ In order to convict the defendant of the attempted murder of Rene Galaviz and Samuel Morales, the People must prove that the defendant not only intended to kill Antonio Maldonado but also either intended to kill Rene Galaviz and Samuel Morales or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Rene Galaviz and Samuel Morales or intended to kill Antonio Maldonado by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Rene Galaviz and Samuel Morales.” (Italics added.)
Hurtado contends that the trial court erred in instructing the jury in accordance with CALCRIM No. 600. He argues that “under the circumstances of the present case,” it allowed the jury to find him “guilty of the premeditated attempted murder without a specific evaluation and examination of his mental state as to each of the victims in violation of his Sixth Amendment right to have each element of each offense found by the jury beyond a reasonable doubt and his Fourteenth Amendment right to due process of law.”
Respondent contends that Hurtado forfeited this contention by failing to raise it in the trial court. We agree. (See People v. Campos (2007) 156 Cal.App.4th 1228, 1236 (Campos) [finding similar challenge to CALCRIM No. 600 forfeited because not preserved in the trial court by request for clarification or amplification].)
Even if the objection to CALCRIM No. 600 had been raised in the trial court, we would reject it. As previously stated, attempted murder requires proof of a direct but ineffectual act done towards killing another human being and the specific intent to unlawfully kill another human being. (People v. Lee, supra, 31 Cal.4th at p. 623; People v. Herrera, supra, 70 Cal.App.4th at p. 1467 [citing CALJIC No. 8.66 with approval].) Unlike the mental state for murder, which does not require an intent to kill but only a conscious disregard for life (implied malice), “‘[a]ttempted murder requires the specific intent to kill.’” (People v. Smith, supra, 37 Cal.4th at p. 739.) The doctrine of “transferred intent,” transferring the intent to kill an intended target to an unintended victim, applies to murder but not to attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 320-321, 331 (Bland).)
While holding that transferred intent does not apply to attempted murder, the California Supreme Court in Bland stated that there could still be a concurrent intent such that “a person who shoots at a group of people [may still] be punished for the actions towards everyone in the group even if that person primarily targeted only one of them. . . .” (Bland, supra, 28 Cal.4th at p. 329.) Bland concluded that a concurrent intent can be found when there is a “kill zone” created, that is, “‘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.’” (Bland, supra, at p. 329.)
We evaluate this challenge to CALCRIM No. 600 by considering the instructions as a whole. (Campos, supra, 156 Cal.App.4th at p. 1237.) It is only found misleading if in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (Ibid.) It is not reasonably likely that the jury here could have misapplied CALCRIM No. 600.
The jury was properly instructed on the elements of attempted murder, including the requirement of the specific intent to murder the person whose attempted murder is charged. (CALCRIM No. 600 [to prove attempted murder, “the People must prove that: [¶] 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)].) This instruction sufficiently stated the elements of the offense. As we stated in Campos, “The ‘kill zone’ portion of CALCRIM No. 600 was superfluous. That theory “‘is not a legal doctrine requiring special jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.’” (Campos, supra, 156 Cal.App.4th at p. 1243; People v. Smith, supra, 37 Cal.4th at p. 746.)
As we also pointed out in Campos, “the ‘kill zone’ instruction as given here, while ambiguous, is not necessarily inconsistent with Bland. While it states that proving [Hurtado] guilty of the attempted murder of [Galaviz and Morales] requires proof that he intended to kill not only [Maldonado], but [Galaviz and Morales] or ‘anyone within the kill zone’ (italics added), it adds, ‘If you have a reasonable doubt whether the defendant intended to kill [Maldonado] or intended to kill [Galaviz and Morales] by harming everyone in the kill zone, then you must find [Hurtado] not guilty of the attempted murder.’ (CALCRIM No. 600, italics added.) This language is consistent with Bland and directed the jury that it could not find [Hurtado] guilty of attempted murder of [Galaviz and Morales] under a ‘kill zone’ theory unless it found that he intended to harm ‘everyone’ in the zone.” (Campos, supra, 156 Cal.App.4th at p. 1243.)
Finally, as we also pointed out in Campos, where multiple rounds are fired indiscriminately at a group of people, there is little difference between the words “‘kill anyone within the kill zone’” and “‘kill everyone within the kill zone.’” In both cases, there exists the specific intent to kill each person in the group. (Campos, supra, 156 Cal.App.4th at p. 1243.)
Hurtado argues that the facts in Campos are distinguishable from those presented here because there “the shots were fired into a particular vehicle creating a clearly defined ‘kill zone.’” Nothing in Bland suggests that in order to create a “kill zone” there must be a perimeter with a discreet, tangible boundary, such as a car or house. It is the nature and scope of the attack that determines whether a “kill zone” is created. It occurs when the attack is directed at a primary victim but executed in such a fashion as “‘to ensure harm to the primary victim by harming everyone in that victim’s vicinity.’” (Bland, supra, 28 Cal.4th at p. 329.) Here, Galavis, Maldonado and Morales were exiting the front door of Galaviz’s house. They were sprayed with three or four bullets, one hitting the front door and one a tree right behind Maldonado. In these facts, a “kill zone” was created.
Even if the instruction was erroneous, the error was harmless in that it was not reasonably probable that if a correct instruction had been given a verdict more favorable to Hurtado would have resulted. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1157 [misdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error, are reviewed under the harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836].) The evidence of Hurtado’s intent to kill all of the victims here was strong under the “kill zone” theory or otherwise, as stated in the previous paragraph and discussed in part II.C., ante. Shooting at the three victims from close, but not point-blank range, in a manner that could have inflicted a mortal wound on any one of them is sufficient to form an inference of intent to kill all victims. (See People v. Smith, supra, 37 Cal.4th at p. 743 [“evidence that defendant purposefully discharged a lethal firearm at the victims, both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire, can support an inference that he acted with intent to kill both”].)
IV. Exclusion of evidence and limitation on cross-examination
Ortega was convicted as an aider and abettor of Hurtado. His defense at trial was that although he drove the car from which the shots were fired, he neither had the intent to aid, facilitate, promote, encourage or instigate the shooting nor did his actions in fact do so. Instead, he got caught up in Hurtado’s unanticipated violence.
Ortega’s attorney sought to question Detective Kendrick to show that because Ortega was a 17-year-old juvenile and Hurtado was a 21-year-old adult at the time of the shooting, Hurtado controlled the situation and, as a juvenile, Ortega had not formed the intent to aid and abet Hurtado. The prosecutor objected under Evidence Code section 352. The trial court sustained the objection, concluding that the evidence might be relevant to sentencing, but was not relevant at trial without a foundation. There was no evidence Ortega was told what to do nor that he did not know what was going to occur.
During Ortega’s presentation of his case, his attorney sought to have his girlfriend, Vanessa Soltero, testify to her age, the nature of her relationship to Ortega, that they went to school together and that they had plans to visit on the evening of the shooting. This again was to show that Ortega did not intend to aid and abet Hurtado, as it is “inconceivable” that he would aid and abet a shooting “so close to and in the very same small neighborhood as the Soltero residence where he visited Ms. Soltero three to four times weekly.” The prosecution brought an Evidence Code section 402 hearing to exclude Soltero’s testimony as irrelevant. The trial court granted the motion under Evidence Code section 352.
Ortega contends that by excluding Soltero’s testimony and the above-stated cross-examination of Detective Kendrick, the trial court committed reversible error and denied him due process and the right to present a defense. He argues that the evidence he sought to introduce strongly tended to prove that he drove the vehicle down Defoe Avenue, looking for a space to park so he could visit Vanessa, and was simply caught up in Hurtado’s spontaneous violence.
We review the trial court’s rulings on the admission and exclusion of testimony for abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230; People v. Kipp (2001) 26 Cal.4th 1100, 1123 [relevance objection]; People v. Greenberger (1997) 58 Cal.App.4th 298, 352 [Evid. Code, § 352 objection].) The trial court’s discretion is as “‘broad as necessary.’” (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.) “‘[I]n most instances the appellate courts will uphold its exercise whether the [evidence] is admitted or excluded.’” (Ibid.) “‘A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice.’” (Id. at p. 1533.) “‘[W]hen the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion.’” (Ibid.) Abuse occurs when the trial court “exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.) We find no abuse here.
“Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) 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.) Evidence Code section 352 provides an exception to the rule that all relevant evidence is admissible, stating: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
We cannot say that the trial court abused its broad discretion in excluding the challenged testimony. Evidence that Ortega was a juvenile and Hurtado a 21-year-old adult was irrelevant. The mere four-year age difference was not probative of whether Hurtado was in control of the situation or whether Ortega was simply following his directions. While we question whether this evidence would have presented any serious prejudice to the People’s case, in light of its negligible relevance, its exclusion under Evidence Code section 352 was not an abuse.
Similarly, the evidence that Ortega was friends with Vanessa and going to visit her that evening was also of little, if any, relevance. Furthermore, the evidence was cumulative, as there was already evidence before the jury that appellants were on Defoe Avenue on the night of the shooting to visit Ortega’s girlfriend.
We reject defendant’s claim that he was deprived of his constitutional right to present a defense by virtue of the excluded evidence. “‘As a general matter, the “[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.” [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level . . . .’” (People v. Boyette (2002) 29 Cal.4th 381, 427-428;People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Ortega was not precluded from introducing other evidence that he was Hurtado’s unwitting pawn.
V. Correction of abstract of judgment
The trial court sentenced Hurtado on counts 1 through 3 to three consecutive life terms with the possibility of parole, plus 20 years on each count for the firearm enhancement under section 12022.53, subdivision (c). On these counts, it also imposed and stayed, pursuant to section 654, the 10-year firearm enhancement under section 12022.53, subdivision (b) and one-year firearm enhancement under section 12022, subdivision (a)(1). The trial court also sentenced Hurtado to the middle term of five years on count 4, plus consecutive terms of one third the middle term, or eight months each, on counts 5, 11 and 12 and two years pursuant to section 12022.1 for a total of nine years. It imposed and stayed, pursuant to section 654, sentences of two years on each of counts 6 through 10.
The abstract of judgment (1) fails to indicate the imposition of any firearm enhancement on count 3, (2) fails to indicate that the trial court imposed and stayed the 10-year firearm enhancement in section 12022.53, subdivision (b) on counts 1 through 3, (3) fails to indicate that the one-year firearm enhancement in section 12022, subdivision (a)(1) was stayed on counts 1 and 2, and imposed and stayed on count 3, (4) fails to indicate that the life terms on counts 1 through 3 are consecutive, (5) fails to indicate that two-year sentences were imposed on counts 6 through 8, (6) erroneously indicates that eight-month sentences were imposed on counts 9 and 10, when in fact, two-year sentences were imposed and stayed on those counts, (7) fails to indicate that eight-month sentences were imposed on counts 11 and 12, which were not stayed, and (8) erroneously indicates that counts 6 through 10 were consecutive.
Respondent contends, without opposition, that the abstract of Hurtado’s judgment should be modified to conform to the trial court’s oral pronouncement of Hurtado’s judgment. We agree.
Rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Entry of judgment in the minutes is a clerical function. (Ibid.;§ 1207.) An abstract of judgment is not the judgment of conviction and cannot add to or modify the judgment it purports to summarize. (People v. Mesa, supra, at p. 471.) The oral pronouncement of judgment controls over the abstract of judgment. (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1416.) If a minute order or abstract of judgment fails to reflect the judgment pronounced by the trial court, the error is clerical and the record can be corrected at any time to make it reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa, supra, at p. 471; see also People v. Williams (1992) 10 Cal.App.4th 827, 830, fn. 3; People v. Jack (1989) 213 Cal.App.3d 913, 915-916.)
The abstract of judgment must be corrected to reflect the trial court’s oral pronouncement of judgment.
DISPOSITION
The judgments are affirmed. On remand, the trial court is directed to correct Hurtado’s abstract of judgment to conform to the trial court’s oral pronouncement of judgment in the following particulars: (1) in connection with count 3, add that the 20-year firearm enhancement in section 12022.53, subdivision (c) was imposed, and the 10-year firearm enhancement in section 12022.53, subdivision (b) and one-year firearm enhancement in section 12022, subdivision (a)(1) were imposed and stayed, (2) in connection with counts 1 and 2, add that the 10-year firearm enhancement in section 12022.53, subdivision (b) was imposed and stayed and reflect that the one-year firearm enhancement imposed under section 12022, subdivision (a)(1) was stayed, (3) in connection with counts 1 through 3, add that the life terms were imposed consecutively, (4) in connection with counts 6 through 8, change the time imposed from zero to two years on each count and delete that they were imposed consecutively, (5) in connection with counts 9 and 10, change the time imposed from eight months to two years on each count, reflect that the sentences were stayed, and delete that they were imposed consecutively, and (6) in connection with counts 11 and 12, change the time imposed from zero to eight months on each count, and delete the notation that they were stayed.
We concur: BOREN, P. J., ASHMANN-GERST, J.