Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C152985
Lambden, J.
Defendants Ishmael Johnson, Terrell Watson, and Jason West were convicted of the first degree murder of Lamar Whitehead in the course of an attempted carjacking. Watson and West were also convicted, and Johnson was acquitted, of attempted murder of Keith Griffin, the driver of the car involved. The trial court sentenced all three defendants to state prison for the indeterminate term of life without the possibility of parole and imposed various enhancements. Defendants appeal on a variety of grounds. We affirm the judgment in its entirety regarding all three defendants.
BACKGROUND
The Amended Information
In October 2007, the Alameda County District Attorney filed an amended information containing three counts. The first count charged each of the defendants with the murder of Lamar Whitehead in violation of Penal Code section 187, subdivision (a). The first count also alleged defendants murdered Whitehead in the course of an attempted carjacking, a special circumstance within the meaning of Penal Code section 190.2, subdivision (a)(17)(L); that they used a firearm within the meaning of section 12022, subdivision (a)(1); and that Watson and West personally and intentionally discharged a firearm and inflicted great bodily injury within the meaning of sections 12022.7, subdivision (a), and 12022.53, subdivisions (b), (c), and (d).
All further references herein cite to the Penal Code unless otherwise stated.
The second count charged defendants with the attempted murder of Keith Griffin in violation of sections 187, subdivision (a), and 664. It was also alleged that defendants used a firearm within the meaning of section 12022, subdivision (a)(1), and that defendants Watson and West personally and intentionally discharged a firearm and inflicted great bodily injury within the meaning of sections 12022.7, subdivision (a), and 12022.53, subdivisions (b), (c) and (d).
The third count charged defendant Watson with dissuading a witness from reporting a crime in violation of section 136.1, subdivision (a)(2).
The amended information also alleged defendant Johnson had suffered one prior serious felony conviction within the meaning of section 667, subdivision (a), and one prior strike conviction within the meaning of sections 667, subdivision (e)(1), and 1170.12, subdivision (c)(1).
Evidence Presented at Trial
Defendants’ trial began in October 2007, in Alameda County Superior Court. We summarize only that evidence relevant to the issues raised in this appeal.
Defendants discuss at length the evidence presented at trial. However, our discussion of the facts is related largely to substantial evidence issues. Therefore, we limit our summary here, and in our discussion of the facts, to that evidence.
The Attempted Carjacking and Murder of Lamar Whitehead
Keith Griffin testified that he and his long-time friend, Lamar Whitehead, the murder victim, were interested in modifying and accessorizing their cars. Griffin equipped a Chevrolet Monte Carlo with elaborate 20-inch chrome wheel rims that cost about $1,400. These rims could not simply be popped off with a crowbar; they could only be removed after jacking up the car and unscrewing a number of lug nuts. He estimated that it would take “about 15 minutes” to remove the rims from his car, “plus you got to get through the lock nuts.” Therefore, he testified, if someone was going to steal his rims, they would have to take his whole car to do it.
Griffin worked in San Leandro and Whitehead, 21 years old at the time of his death, worked a graveyard shift in Oakland starting at 11:00 p.m. Griffin was often asked by Whitehead for a ride to work, and drove his car to Whitehead’s residence at least 100 times after installing the rims. At 10:45 p.m. on January 27, 2005, Griffin drove his Monte Carlo to Whitehead’s residence again, located in an apartment complex at 3901 Webster Street in Oakland, to give Griffin a ride to work again, arriving there at 10:51 p.m. The apartment complex consisted of three apartment buildings, with a parking lot serving all three, for which there was only one entrance/exit.
As Griffin pulled into the complex parking lot, he saw a group of about five men and women standing on the sidewalk, and a group of about three young men standing across the street near a battered, brown Buick Skylark. He stopped at the far end of the parking lot and called Whitehead, who came out of his apartment and entered the car. As Griffin started to back up, he heard a noise which, according to his testimony, sounded “like somebody balled up their fist and... gave like two knocks on the side of the car, like ‘Stop.’ ” Griffin put on his brakes. He saw a man “walking around the back of the car. They came up the driver’s side, and they walked all the way up.... I rolled the window down, and I was like ‘Ah, my bad.’ ” The man walked toward the front of the car, turned around, and asked, “What did you say?” He then opened the driver’s side door, reached into his waistband and said, “Nigger, check this out.” Griffin testified that he assumed the man, who looked like defendant Watson, was reaching for a gun.
Griffin pulled the car door shut and “just hit the gas.” As he backed into the gate of the parking lot entrance, he heard a gunshot, which did not hit any of his car’s windows. The man was standing in the middle of the parking lot pointing a black revolver, which Griffin thought was probably.38 caliber, straight at Griffin’s head from 20 to 25 feet away. Griffin testified, “I threw the car in drive, and I punched the gas, and I tried to run him over, and he jumped over to the side in between some parked cars and I ran into a car.” As Griffin shifted in reverse, he saw a flash, his driver’s side window shattered, and he felt something land on his arm.
Griffin “hit the gas to go backwards.” He steered through the parking lot gate and turned onto the street, where the crowd had grown bigger. A man standing next to a rock quickly pointed a gun at Griffin’s vehicle and fired, shattering the passenger-side window, and, Griffin thought, hitting Whitehead, who slumped over and made a gurgling sound, as if he was choking. Griffin could not describe this shooter, other than to say he was calm. In his first two statements to police, Griffin thought it was the same person who shot at him in the parking lot, but at trial he testified that he thought there were two shooters. Griffin ducked down, shifted gears, and “punched the gas.” He ran into the back of a parked truck, but pushed it out of the way, and drove off. He heard more shots, but did not see where they came from.
As Griffin drove home, he called 911 and asked for an ambulance, which arrived within a minute of his arrival at his house. Griffin was eventually taken to the hospital. A gunshot had entered his body under his armpit and come out at the top of his arm.
Whitehead was killed. The parties stipulated that he died from a bullet wound to the chest. It passed through his left arm, then penetrated his left lung, pericardial sac, heart, liver, and right lung, exiting into his right chest wall. Two bullet fragments were taken from Whitehead’s body, one was found on his jacket, and another was found on the back floorboard of Griffin’s car.
E.L.’s Testimony
E.L., a 14-year-old run-away at the time of the shooting who made money prostituting herself, often visited Whitehead’s apartment complex in the months before his death. She knew defendants and was friendly with Watson in particular.
E.L. testified she saw Johnson talking to Watson and West in the middle of the street by the apartment complex a couple of hours before the shooting, during daylight hours. Johnson said, “I’m waiting on somebody with some rims.... I’m waiting on this person to bring me some rims.” Watson asked who, but E.L. did not recall West saying anything, and did not remember what Johnson said after that. The three talked about rims for about 10 minutes, and left together. At some point, E.L. went to the store with her friend, a girl named M.P. She returned to the apartment complex after it was dark, and saw the three come back in Watson’s car.
E.L. sat in Watson’s car talking with a man named Chucky. Watson’s car was parked across the street from the apartment complex. Watson and Johnson were in the car for a time, but got out about 30 minutes before the incident and went to talk to the men in the car parked behind them. Watson was standing by E.L. on the sidewalk by the passenger side of his car, and Johnson and West were standing with several other males behind Watson’s car, when E.L. saw a champagne-colored Chevrolet Monte Carlo equipped with 20-inch wheel rims drive up to the complex. E.L. heard Johnson say, “That’s him right there. That’s him. There he go.”
At trial, E.L. could not recall what else Johnson said when he saw the Monte Carlo approach. According to the transcript of a police interview of E.L., portions of which were read into the record and admitted into evidence, E.L. recalled in the interview that Johnson said, “ ‘Yeah, there they go. There goes partner. There goes his partner.’ ” E.L. told police she heard him because she had the door cracked open at the time. Johnson was talking to Watson “ ‘real loud, ’ ” although he was trying to be “ ‘quiet’ ” and “ ‘sneaky’ ” about it. Watson asked, “ ‘There who go?’ ” and Johnson replied, “ ‘That’s the rims. That’s the rims. That’s the rims. There go-that’s his partner.’ ”
According to E.L.’s trial testimony, Watson opened the passenger side door of his car, reached across E.L., and pulled out a black gun. He also put on a “hoodie” and a leather jacket. Watson and Johnson walked across the street together, and Watson entered the parking lot while Johnson stood by the parking lot gate. West remained behind Watson’s vehicle.
Within two to three minutes, E.L. saw a “big light flash” and heard gunshots coming from the parking lot. She testified, “I heard a big crash... like, it was a big car accident, and then all of a sudden I seen a car spinning, and he like hit all the cars trying to come out the parking lot. He hit about like four cars coming out of the parking lot. And when he was like by the fence where [Johnson] was at, that’s when [Johnson] hollered, ‘Shoot. Shoot.’ ” “The very next thing that happened was after he said, ‘Shoot. Shoot, ’ all the other guys just-I turned around. All the other guys just start pulling out guns and just started shooting every which way.” West stood in the middle of the street and fired a silver gun twice at the car. About three others also fired guns.
As the car emerged from the parking lot, E.L. observed the back window shatter. E.L. saw “[Whitehead’s] head go back, and that’s when his friend was yelling, ‘My friend’s down. My friend’s down.’ ” E.L. saw blood at the same time. The shooters then ran away.
Watson implies E.L.’s seeing blood was particularly implausible because the police department’s evidence technician testified there was no evidence of blood in the car. In fact, the technician testified that she did not recall whether she observed blood in the interior of the Monte Carlo. A police officer who also observed the car and Whitehead on the night of the shooting was asked if he saw blood on Whitehead’s person. He testified, “You know, I don’t remember as far as where the blood was. I believe I did see blood, but I didn’t specifically note that in my report. I don’t recall exactly where that was.”
E.L. testified that she waited a few minutes, then ran to M.P.’s apartment. M.P. was present, but refused to open the door. E.L. then went to the apartment of Johnson’s grandmother and described the shooting to her. E.L. told her that Johnson was involved in the shooting but did not kill anybody. Later, Johnson came into the apartment. He acted at first as if he did not have anything to do with the shooting, but later told E.L. that he would kill her if she said anything. Police came to the apartment. E.L. gave them a false name and said she did not know anything because she knew the grandmother did not want police at her house.
A few days later, E.L. went home to Chicago and told her mother what had happened. On February 5, 2005, while in Chicago, E.L. dictated a statement by herself about what happened. Shortly thereafter, she was interviewed by the police and identified the three defendants from photographic lineups. Defendants point out inconsistencies in her various statements.
E.L. also testified that at the time of trial she suffered from bipolar disorder and took Seroquel and Depakote for her mood swings. She did not take her prescribed medications on the day of the shooting, and smoked marijuana that day too. She had a history of juvenile court cases involving theft and violence.
M.P.’s Testimony
M.P. testified that she was about 17 years old and living with her grandmother in the apartment complex at the time Whitehead was shot. She knew Whitehead for many years, and was friendly with him. She knew, and sometimes had problems with, defendant Johnson, who also lived in the apartment complex. She was attracted to Watson, and knew West by sight because he was friends with Watson. Both West and Watson frequented the area of the apartment complex.
M.P. testified that on the day of the shooting, she saw Watson and Johnson standing in front of the apartment complex, talking about getting some wheel rims. She could not recall if West was involved in the conversation. She further testified that on the same night of the shooting, she was “cupcaking” for a time with Watson in her bedroom. She saw Johnson with either Watson or West before she went upstairs with Watson.
When asked if she saw Whitehead get shot, M.P. did not respond clearly. After the question was repeated and the court instructed her to answer the question honestly, she began crying, and said “No.” She said she did not see Watson, or anyone, with a gun the night Whitehead was shot. From her back bedroom window, she saw Whitehead walk from his house to a car, but did not see him get into the car. After she saw him go to the car, she heard gunshots. She left her window and remained in her bedroom, where she heard gunshots and a car crash.
M.P. testified that a month after Whitehead was shot, the police interviewed her. She also identified the three defendants from a police photo lineup as being present when Whitehead was killed.
M.P. renounced the incriminating information about defendants she told to police in her interview, testifying that none of what she said was true. This included that she saw “the end” of Whitehead getting shot, opened her door and saw Whitehead’s friend’s car crashing, looked outside after the shooting and saw Watson running away with a gun in his hand, saw West fire two shots with a gun from across the street at a car driving away with Whitehead inside, saw that West’s gun “broke, ” saw Watson shoot his gun when Johnson yelled, “Shoot, shoot, ” saw the car crash into another car on Webster Street, saw “heck of boys” running when the car crashed, and saw, that, as the car went towards 38th Street, Johnson, West and Watson together, ran in the opposite direction, towards 40th Sreet, with Watson and West holding guns in their hands. M.P. said she lied to the police, did not know why she lied, and was nervous, scared, and under pressure at the time. She also testified that E.L. told her some of what she told police.
M.P. also had been previously interviewed by the police. She had told a somewhat different story, for example denying that she saw Watson with a gun on the night of the shooting. The prosecution played tapes of her police interviews for the jury.
M.P. further testified that she was threatened by an anonymous man in a phone call after she testified at the preliminary hearing in the case. She said, “He told me if I go to court, they going to shoot me and my baby in the face when we walk out my door.” After the call, she was concerned “[a] little bit” for her safety and was concerned about her baby’s safety, and remained so.
M.P. testified that after Whitehead was shot, Watson’s car was sitting across the street from her apartment. Watson called her and asked her if the police were “messing with his car.” The prosecutor asked her a series of questions about the phone conversation, but she could not recall anything. She denied that Watson told her he shot Whitehead because Whitehead tried to run over him. On cross-examination, she said Watson asked her to get his car keys, which she did not do because the car was gone. She guessed Johnson had taken it, and told police Johnson had stolen it, but she did not see Johnson drive away in the car. She walked over to Johnson’s grandmother’s house, where she saw E.L. and Johnson.
M.P. also testified that she had been arrested more than once, and had been in trouble with the juvenile courts, for stealing and taking cars. She was presently taking the prescribed medications Seroquel and Depakote for her depression and anger (although she had not taken her medication on the second day of her testimony), and was taking these medications on the day Whitehead was shot. She also smoked marijuana that day, which she commonly did every day, “all day.”
The testimony of M.P. and E.L. recounted herein was contradicted in parts by the testimony of a woman who lived near the apartment complex. She testified regarding M.P. and E.L.’s drug use and activities, including on the day of the incident, and what she heard Johnson and Watson talking about earlier that day. Also, another woman, who lived a few doors down from the apartment complex, testified that she saw the shooting, but only saw one shooter. We have no need to discuss their testimony further, given the issues raised on appeal.
The Jury’s Verdict and Sentencing
The jury convicted all three defendants on the first count, the murder of Whitehead, and found true all of the count’s enhancement allegations, including the attempted carjacking allegation. Regarding the second count, the attempted murder of Griffin, the jury convicted Watson and West, found true all enhancement allegations against them, and acquitted Johnson. Regarding the third count, the jury convicted Watson of dissuading a witness from reporting a crime. The trial court sentenced all three defendants to state prison for the indeterminate term of life without the possibility of parole and imposed various enhancements. All three defendants filed timely notices of appeal.
DISCUSSION
I. Evidence of Attempted Carjacking
Watson claims insufficient evidence supported the jury’s finding true the first count’s attempted carjacking special circumstance allegation. We conclude the finding was supported by more than sufficient evidence.
Watson’s claim is specifically joined by Johnson. West does not specifically join Watson on this issue, but states that he generally “joins in all arguments raised by co-appellants Watson and Johnson as they are applicable to him.” To the extent Watson’s arguments, as joined by Johnson, regarding the attempted carjacking might relate to West, we reject West’s claim as well, for the same reasons. We also reject any arguments West might make regarding the remainder of Watson’s and Johnson’s appellate claims for the reasons we state regarding those claims.
A. Legal Standards
1. Standard of Review
Watson has a high hurdle to overcome. As the People point out, “[a]n appellate court called upon to review the sufficiency of the evidence supporting a judgment of conviction of a criminal offense must, after a review of the whole record, determine whether the evidence is such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.] The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ ” (People v. Bean (1988) 46 Cal.3d 919, 932-933, followed in People v. Park (2003) 112 Cal.App.4th 61, 68.)
Similarly, “ ‘[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. [Citation.]... Evidence, to be ‘substantial’ must be ‘of ponderable legal significance... reasonable in nature, credible, and of solid value.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.) “In reviewing the sufficiency of the evidence, we must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]... [Citation.] We ‘ “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ ” (People v. Davis (1995) 10 Cal.4th 463, 509.) We do “not reweigh or reinterpret the evidence on appeal.” (People v. Pace (1994) 27 Cal.App.4th 795, 798.)
Moreover, in reviewing the record to determine the sufficiency of the evidence, we “may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. (People v. Poe (1999) 74 Cal.App.4th 826, 830.) “ ‘It is blackletter law that any conflict or contradiction in the evidence, or any inconsistency in the testimony of witnesses must be resolved by the trier of fact who is the sole judge of the credibility of the witnesses. It is well settled in California that one witness, if believed by the jury, is sufficient to sustain a verdict. To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.” (People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259.)
2. Carjacking Law
The Legislature created the crime of carjacking in 1993. (People v. Lopez (2003) 31 Cal.4th 1051, 1057 (Lopez).) “ ‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence... against his or her will and with the intent to either permanently or temporarily deprive the person in possession of a motor vehicle of his or her possession, accomplished by means of force or fear.” (§ 215, subd. (a).) Thus, establishing a “carjacking” requires the People to show “either an intent to permanently or temporarily” “take” a vehicle from a person possessing it, a passenger in it, or such a person’s immediate presence, by means of force or fear. (Lopez, supra, at pp. 1058-1059.)
Furthermore, as is true for the crime of robbery, asportation is one of the elements of a carjacking. “ ‘ “[N]o great movement is required, and it is not necessary that the property be taken out of the physical presence of the victim.” [Citation.] “[S]light movement” is enough.” ’ ” (Lopez, supra, 31 Cal.4th at pp. 1060, 1062-1063.) Indeed, “ ‘ “[a]ny removal, however slight” ’ ” is sufficient. (Id. at p. 1060.) Thus, it has been said regarding asportation that whether a defendant “conveyed [the car] one yard or one mile... is immaterial.” (People v. Clark (1945) 70 Cal.App.2d 132, 133, followed in People v. Cooper (1991) 53 Cal.3d 1158, 1165.)
B. Analysis
Watson contends that insufficient evidence supports the finding that defendants killed Whitehead in the course of an attempted carjacking because there is no evidence they “intended to move Griffin’s car.” He argues that, although the People do not need to prove a carjacker intended to engage in asportation to establish the crime of carjacking, the People do need to prove such intent to establish the crime of attempted carjacking. According to Watson, “[b]efore their alleged plan to steal the rims went awry, the defendants had Griffin and Whitehead trapped in a confined space at gunpoint. Under these circumstances, and absent any evidence that the defendants were interested in taking the car and not just the rims, nothing but speculation supports the inference that the defendants intend[ed] to move the car rather than immobilize it while they accomplished their purpose.” We find this argument unpersuasive, and conclude substantial evidence indicates defendants each intended to engage in asportation of Griffin’s Monte Carlo. Given this conclusion, we do not address Watson’s argument that the People must prove that persons who attempt a carjacking, without completing it, intended to engage in asportation.
Watson does not seriously challenge the significant amount of substantial evidence, largely contained in E.L.’s and/or M.P.’s testimony, that defendants planned to take control of Griffin’s car and steal the rims. Griffin testified that he had driven his rim-accessoried Monte Carlo to the apartment complex at least 100 times, and often gave Whitehead a ride to his job, which started at 11:00 p.m. Watson and West frequented the apartment complex, and Johnson lived there. Johnson was heard talking to Watson and West about waiting for someone to bring him some rims on the day of the shooting. The three were seen leaving and returning to the area of the apartment complex together, where they waited outside for at least one-half hour. When Griffin drove up in his Monte Carlo, Johnson was heard to say, “That’s him right there. That’s him. There he go.” Watson was seen immediately retrieving a gun from his car, putting on a hoodie, and walking across the street to the complex’s parking lot with Johnson, while West stayed behind Watson’s car. Subsequent events indicate Watson and West were each armed with a loaded weapon. Watson then followed Griffin’s car into the parking lot. West, already armed, remained across the street from the apartment complex, and Johnson positioned himself by the parking lot gate, somewhere between Watson and West. After Whitehead got in the car, Watson approached, manufactured a confrontation with Griffin, opened the driver’s side door, and showed Griffin his weapon. Griffin’s testimony indicated that when he resisted Watson’s intimidation, Watson did not hesitate to shoot at him-before Griffin tried to run him over, indicating the willingness to use weapons fire to carjack Griffin’s car. When Griffin continued his efforts to escape, Johnson promptly yelled to shoot and West promptly did so, stopping only because his gun broke. It was only after Griffin escaped that they ran away. The jury could reasonably infer from these facts that the three intended to take control of Griffin’s car in order to steal his wheel rims.
Watson argues there was not sufficient evidence that defendants intended to engage in asportation of Griffin’s vehicle. We disagree. The jury could reasonably infer from defendants’ positioning (with West outside the complex and Johnson by the parking lot gate) and Watson’s opening of the driver’s side door, that they planned all along for Watson to jump into the driver’s seat after intimidating or forcing Griffin and Whitehead to give up the car, pick up Johnson and West, and drive away. If, as defendants contend, the evidence does not indicate anything more than a plan to immobilize the car and subdue Griffin and Whitehead as they removed the Monte Carlo’s wheel rims in the purportedly concealed area of the complex’s parking lot, this positioning makes no sense. One would expect Johnson and West to have accompanied Watson, or at least position themselves nearby in the parking lot, in order to help subdue Griffin and Whitehead and remove Griffin’s wheel rims as quickly as possible.
Watson’s argument also is based on the false premise that the parking lot was somehow “concealed.” To the contrary, as M.P.’s testimony demonstrated, if defendants had subdued Griffin and Whitehead and tried to remove the rims, their actions could have been observed by apartment residents, who could have called the police.
Furthermore, once Watson fired even one shot, the jury could reasonably infer from the circumstances that defendants intended to drive to another location before attempting to remove the wheel rims, to avoid being caught.
Finally, as the People point out, Griffin’s testimony showed that removing the wheel rims would have required defendants to raise his car with a jack and remove a number of lug nuts. There was no evidence defendants were ready to employ the necessary tools in the parking lot upon taking control of the Monte Carlo.
In short, the jury could reasonably infer from all of the circumstances that defendants intended to move Griffin’s car. Given that the People, to establish asportation, are required to show only slight movement (Lopez, supra, 31 Cal.4th at p. 1060), we conclude there was more than sufficient evidence for the jury to conclude that defendants intended to engage in asportation of Griffin’s car when Johnson spotted Griffin driving up in the Monte Carlo and set their plan in motion, and certainly after firing at the car. Watson’s “insufficient evidence” argument, as joined, lacks merit.
Watson also argues, specifically joined by Johnson, that his “conviction for first degree murder must be reversed because it is clear that the jury reached its verdict based on a theory of culpability that was without factual support.” Watson argues that there was a lack of evidence of an attempted carjacking, or for any other theory of culpability for first degree murder presented to the jury, such as murder with premeditation and deliberation and murder by lying in wait. Therefore, he argues, we must reverse his first degree murder conviction. In light of our finding that sufficient evidence of carjacking was presented to the jury, we need not address this argument, or the People’s reply.
II. Johnson’s Aiding and Abetting of the Carjacking
Johnson argues “there was insufficient evidence to support a verdict of guilty of first degree murder as an aider-and-abettor to carjacking, and it was error to have denied the defense’s motion under [section 1118.1]; evidence was lacking that Johnson had the specific intent that Watson commit the specified crime of carjacking, which was the only felony on which the felony-murder instruction was based.”
As our discussion of the facts in subpart I, ante, makes clear, we conclude this argument lacks merit. The jury could reasonably infer from the substantial evidence of Johnson’s statements and actions that defendants planned together to steal the rims from Griffin’s Monte Carlo via a carjacking, and that Johnson specifically intended to conduct a carjacking. Indeed, the jury could reasonably conclude Johnson was the orchestrator of the carjacking in light of his comments during the day, announcement of Griffin’s arrival, positioning of himself by the parking lot gate, where he could observe and communicate with both Watson and West, and his shout to shoot. At the very least, there was more than sufficient evidence to support his conviction as an aider-and-abettor of Watson’s carjacking.
Johnson points out inconsistencies between E.L.’s trial testimony and her previous statements to police. For example, he notes that the sergeant who initially interviewed E.L. testified that E.L. told him she did not hear Johnson talk about rims earlier in the day, but heard this from another witness to their conversation. E.L. denied at trial that she told this to the sergeant and that it happened. Johnson contends there were other inconsistencies in E.L.’s multiple statements as well. These contentions ask us to reweigh the evidence, which we shall not do. (People v. Pace, supra, 27 Cal.App.4th at p. 798.) In short, Johnson’s argument lacks merit.
Only one valid theory is necessary to affirm Johnson’s conviction. (See People v. Guiton (1993) 4 Cal.4th 1116, 1127 [“if there are two possible grounds for the jury’s verdict, one unreasonable and the other reasonable, we will assume, absent a contrary indication in the record, that the jury based its verdict on the reasonable ground”].) Therefore, we do not need to address the parties’ debate about the other theories the prosecution presented to the jury in support of the first degree murder charge against Johnson. We also do not need to address Johnson’s “fallback” argument that there was insufficient evidence to instruct on felony murder, should we “deem there to have been sufficient evidence to convict of felony murder based on a felony other than carjacking.”
III. West’s Attempted Murder Conviction
West argues that his “conviction for attempted murder of Keith Griffin must be reversed because there is insufficient evidence to support his guilt as either the perpetrator or as the aider and abettor of Watson.” We disagree.
West acknowledges there was “evidence to support a jury finding that he personally fired a firearm.” He argues that, nonetheless, there was insufficient evidence that he aided and abetted Watson with the intent to murder or “had an intent to kill anyone in the car that was fleeing the scene.” Also, West contends, the prosecutor “made short shrift of the attempted murder charge [regarding Griffin], seeming to lump it together with the felony murder theory” as to Whitehead, making it impossible to determine the basis for the jury’s verdict. West concludes that his conviction for attempted murder cannot be sustained under the Fourteenth Amendment due process principles pursuant to In re Winship (1970) 397 U.S. 358. We disagree.
West’s arguments, unadorned by a discussion of case law other than his unexplained citation to Winship, cannot be maintained in light of the substantial evidence, such as that contained in E.L.’s testimony and M.P.’s statements to police. The jury, as the trier of fact charged with resolving the credibility of witnesses (People v. Watts, supra, 76 Cal.App.4th at pp. 1258-1259), was entitled to believe M.P.’s previous statements were true, and her denials at trial false, in light of her testimony that a man threatened to shoot her and her baby in the face if she testified. This evidence indicated West fired his weapon twice at Griffin’s Monte Carlo after Johnson shouted, “Shoot! Shoot!” as Griffin attempted to escape, stopping only because his weapon broke. As the People point out, in analogous circumstances, it has been held that the “act of firing... toward the victim at a range and 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 under the circumstances presented.” (People v. Lashley (1991) 1 Cal.App.4th 938, 945.) There was plenty of evidence that West attempted to murder Griffin. His arguments are meritless.
IV. The Court’s Aider and Abettor Jury Instructions
Johnson argues that “CALCRIM 400 and 401 were deficient in failing to ensure the jury knew that aiding-and-abetting carjacking-murder required proof Johnson acted with the specific intent that a carjacking occur[ed], ” thereby violating his due process rights under the federal Constitution. This claim also is meritless.
The trial court instructed the jury pursuant to CALCRIM No. 400 that, “[a] person is [equally] guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.” The court instructed the jury pursuant to CALCRIM No. 401 on the elements of aiding and abetting, as follows:
“To prove that the defendant is guilty of the crime based on aiding and abetting that crime, the People must prove that:
“1. The perpetrator committed the crime;
“2. The defendant knew that the perpetrator intended to commit the crime;
“3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
“AND
“4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.
“Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.
“If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
“If you conclude that a defendant was present at the scene of the crime or fail to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of the crime or fails to prevent the crime does not, by itself, make him or her an aider or abettor.”
Johnson argues on appeal, for the first time, that the trial court’s instructions pursuant to CALCRIM No. 401 were deficient because “an alleged aider-and-abettor must be shown to have held the identical specific intent as the direct perpetrator, in this case, carjacking. In other words, an intent merely to ‘help out’ is insufficient; the same specific intent as the direct perpetrator must be shown.”
The People argue Johnson has forfeited this appellate claim by failing to first raise it below. However, as Johnson indicates, “the failure to object to an instruction in the trial court waives any claim of error unless the claimed error affected the substantial rights of the defendant[.]” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249, italics added.) We do not determine whether the purported error affected Johnson’s, or any defendant’s, substantial rights because we conclude that, assuming no forfeiture occurred, the instructions were proper.
When an appellate court reviews a purportedly ambiguous or potentially confusing instruction for constitutional error, the relevant inquiry is “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72; followed in People v. Lewis (2009) 46 Cal.4th 1255, 1297-1298.) In making this assessment, the instruction “ ‘may not be judged in artificial isolation, ’ but must be considered in the context of the instructions as a whole and the trial record.” (Estelle v. McGuire, supra, 502 U.S. at p. 72.)
“[A]n aider and abettor will ‘share’ the perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) CALCRIM No. 401 correctly conveys this law. It states that a defendant aids and abets a crime “if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” (Italics added.) There is no defect in this instruction. (See People v. Stallworth (2008) 164 Cal.App.4th 1079, 1103 [rejecting the argument that CALCRIM No. 401 was constitutionally defective because it did not explicitly state that mere presence or knowledge was insufficient to establish aiding and abetting].) It plainly states that the aider and abettor must have the specific intent to aid, etcetera, in the commission of the particular crime involved.
Johnson’s argument is little more than a rote recitation of unpersuasive case law. For example, Johnson relies on People v. Mendoza (1998) 18 Cal.4th 1114. However, Mendoza focused on whether “section 22 permits defendants tried as aiders and abettors to present, and the jury to consider, evidence of intoxication on the question whether they had the requisite mental states of knowledge and intent.” (Id. at p. 1126.) This issue is unrelated to the circumstances of this case.
As another example, Johnson relies on People v. Lee (2003) 31 Cal.4th 613. However, Lee actually undermines his claim because it specifically approves the formulation of the intent necessary to establish aiding and abetting that is stated in People v. Beeman, supra, 35 Cal.3d at page 560, and incorporated into CALCRIM No. 401. (Lee, at p. 624 [“the person must ‘know[] the full extent of the [direct] perpetrator’s criminal purpose and [must] give[] aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator’s commission of the crime’ ”].)
Johnson’s argument appears to be that CALCRIM No. 401, while it recognizes the “encouraging and facilitating” element, fails to also include the requirement that the aider and abettor intend to commit the particular crime involved. He further explains that his position, “in a nutshell, is that intending ‘to aid and abet the perpetrator in committing the crime’ contemplated by Watson and/or West was not the same as specifically intending that a carjacking result. The former would be intentionally helping; the latter would be intending a specific result; and those are not the same concepts.” This argument is not persuasive in light of the clear language we have quoted from the jury instruction given here, and the instruction provided by our Supreme Court in Lee, supra, 31 Cal.4th at page 624, and Beeman, supra, 35 Cal.3d at page 560. Therefore, we reject Johnson’s argument.
Johnson contends that the Attorney General has argued in other cases that the language in People v. Beeman, supra, 35 Cal.3d at page 560, compelled the conclusion that there was no specific intent element for aiding and abetting liability, and that it was “disingenuous to argue precisely the opposite here.” We fail to see the relevance of this argument to our consideration of the sufficiency of the trial court’s instruction, and do not consider it further here.
V. Instructions About the Specific Intent to Aid and Abet
West, joined by Johnson, argues regarding his conviction for the murder of Whitehead that the trial court failed in its sua sponte duty to instruct the jury about when he formed his specific intent to aid or abet in the carjacking, thereby violating his Sixth and Fourteenth Amendment rights under the federal Constitution. We conclude no such instruction was required.
The trial court instructed the jury pursuant to CALCRIM No. 540B regarding the elements of felony murder. The court chose not to provide any version of the following “pinpoint” instruction, contained in CALCRIM No. 540B:
“[The defendant must have (intended to commit[, ]/ [or]... been a member of a conspiracy to commit) the (felony/felonies) of _______________ before or at the time of the act causing death.]”
West argues on appeal, for the first time, that the trial court should have given an additional instruction based on this language because of purportedly uncontradicted evidence presented at trial that Watson fired the shot that killed Whitehead while Griffin sought to escape from the apartment complex parking lot, before West shot at the Monte Carlo. Therefore, Watson asserts, the trial court was required to instruct the jury sua sponte, “The defendant must have intended to commit or aid and abet [carjacking] before or at the time of the act causing the death.”
The People assert that defendant is incorrect because West (or Johnson) was required to request this instruction below or forfeit any appellate claim regarding its omission. The People also argue the court had no sua sponte or other duty to so instruct under the circumstances of the case, and that any error in failing to provide the instruction necessarily was not prejudicial. We agree with the People that the court did not have a sua sponte or other duty to give this instruction. We have no need, and do not, address its forfeiture and prejudice arguments.
The trial court has a duty to instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Earp (1999) 20 Cal.4th 826, 885.) A trial court is required to give pinpoint instructions when requested, provided the proposed instruction is supported by substantial evidence and is neither argumentative nor cumulative. (Id. at p. 886; People v. Pollock (2004) 32 Cal.4th 1153, 1176.) The Bench Notes to CALCRIM No. 540B state, “If there is evidence that the defendant did not form the intent to commit the felony until after the homicide... the defendant is entitled on request to an instruction pinpointing this issue.” (Italics added.) Furthermore, as indicated in the Bench Notes, “an after-formed intent instruction is a pinpoint instruction that the trial court has no obligation to give when neither party has requested that it be given.” (People v. Silva (2001) 25 Cal.4th 345, 371.) West and Johnson made no such request.
Nonetheless, West, relying on cases such as People v. Pulido (1997) 15 Cal.4th 713, People v. Esquivel (1994) 28 Cal.App.4th 1386, People v. Silva, supra, 25 Cal.4th 345, and People v. Marks (1988) 45 Cal.3d 1335 argues that the trial court had a sua sponte duty to give his proposed instruction because “no instruction given in this case informed the jury that [West] had to have been an aider and abettor in the [carjacking] before the murder was committed in order to be found guilty of felony murder, and the other instructions given did not adequately inform it of the relevant legal principles.” West contends there was substantial evidence that he formed the intent to carjack at the time he shot at the Monte Carlo, after Watson fired at the car in the parking lot.
We disagree. There was no substantial evidence that Watson murdered Whitehead before West shot at the Monte Carlo. For this reason alone, the instruction was not required.
Even assuming for the sake of argument that Watson shot the fatal bullet in the parking lot, the instruction was not required. West merely insists there was no evidence that he aided and abetted prior to firing his weapon and, from this, asserts that the “intent and action to aid and abet the [carjacking] was proved as to appellant West only at the time of the shooting as the car drove away[.]” West, while he acknowledges he was present when Johnson and Watson discussed car rims earlier in the day, ignores the substantial evidence of his culpability. He was present for the discussion, left and returned to the apartment complex with Watson and Johnson, waited for more than half an hour in the same area as they did, directly across the street from the apartment complex parking lot, was there when Johnson announced that the carjacking target had arrived, and immediately produced a loaded weapon and fired at the Monte Carlo upon Johnson’s shouting “Shoot! Shoot!” This is plainly evidence of his culpability, and West does not cite any other evidence indicating a reason for shooting at the car. Given these circumstances, there was no evidence to support the conclusion that West formed the specific intent to carjack the Monte Carlo after Watson’s shooting in the parking lot. Therefore, no sua sponte instruction was required. (Compare, e.g., People v. Marks, supra, 45 Cal.3d. at p. 1345 [instructing the court on remand to consider, in the event of a retrial, what instructions to give sua sponte in light of “evidence suggesting that defendant did not join the alleged conspiracy until after the murder”].)
Johnson’s view that he formed the specific intent to engage in a carjacking after Watson fired his shots is also unsupported by substantial evidence. There was no substantial evidence that Watson murdered Whitehead before Johnson shouted to shoot. Regardless, substantial evidence presented at trial indicated that Johnson spoke about the rims earlier in the day with Watson and West, left and returned to the apartment complex with them, waited in the same area as they did, announced Griffin’s arrival, walked across the street with the newly armed Watson, positioned himself by the parking lot gate as Watson confronted Griffin and shot at the car, and shouted to shoot when Griffin evaded Watson’s shooting at him. There was no evidence to suggest Johnson acted independently of Watson.
West’s and Johnson’s arguments are further undermined by the trial court’s instruction pursuant to CALCRIM No. 540B. The court instructed the jury to find, among other things, that “[i]f the defendant did not personally commit or attempt to commit carjacking, then a perpetrator, whom the defendant was aiding and abetting, personally committed or attempted to commit a carjacking” and “[w]hile committing or attempting to commit carjacking, the perpetrator did an act that caused the death of another person.” This instruction adequately instructed the jury on the relevant general principles of intent, and the court had no further duty to instruct in the absence of any request by the defense. (People v. Hayes (1990) 52 Cal.3d 577, 629-630 [no further instruction required when the standard felony murder instruction was sufficient].)
In short, given the nature of the evidence, the court had no sua sponte or other duty to instruct the jury as West and Johnson argue on appeal. (People v. Silva, supra, 25 Cal.4th at p. 371; People v. Hayes, supra, 52 Cal.3d at pp. 629-630.) Given that the trial court had no duty to give the instruction even if requested, West’s ineffective assistance of counsel claim lacks merit. Also, in light of our conclusion, we do not address the parties’ debate regarding whether the purported error was prejudicial.
VI. West’s Firearm Enhancements
West argues his due process and Sixth Amendment rights under the federal Constitution were violated by the trial court’s failure to instruct properly regarding the firearm enhancements alleged against him in the first count (the murder of Whitehead) and the second count (attempted murder of Griffin), and because insufficient evidence supported the jury’s findings that these allegations were true. He argues we should strike the enhancements and modify his sentence accordingly. This argument lacks merit as well.
The prosecution alleged regarding the shooting of Whitehead and Griffin that Watson and West personally and intentionally discharged deadly weapons and proximately caused great bodily injury within the meaning of section 12022.53, subdivision (d). Section 12022.53, subdivision (d), states in relevant part that any person committing felonies such as those alleged in first and second counts who “personally and intentionally discharges a firearm and proximately causes great bodily injury... or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” (§ 12022.53, subd. (d).)
The trial court, adapting CALCRIM No. 3150 and portions of CALCRIM No. 3160, instructed the jury on the elements of section 12022.53, subdivision (d), as follows:
“If you find Watson and/or West guilty of the crimes charged in counts one and/or two, you must then decide whether, for each crime, the People have proved the additional allegations that the defendant personally and intentionally discharged a firearm during those crimes and, if so, whether the defendant’s act caused great bodily injury or death. You must decide whether the People have proved these allegations for each crime and return a separate finding for each crime.
“To prove that the defendant intentionally discharged a firearm, the People must prove that:
“1. The defendant personally discharged a firearm during the commission or attempted commission of the crime;
“AND
“2. The defendant intended to discharge a firearm.
“If the People have proved both 1 and 2, you must then decide whether the People also have proved that the defendant’s act caused great bodily injury to or the death of a person.
“If you conclude that more than one person assaulted Lamar Whitehead and Keith Griffin, and you cannot decide which person caused which injury, you may conclude that the defendant personally inflicted great bodily injury on Keith Griffin or caused the death of Lamar Whitehead if the People have proved that:
“1. Two or more people, acting at the same time, assaulted Keith Griffin and Lamar Whitehead and... inflicted great bodily injury on Keith Griffin and at least one caused the death of Lamar Whitehead-though these need not be different assailants;
“2. The defendant personally used physical force during the group assaults;
“AND
“3. The amount or type of physical force the defendant used was enough that it alone could have caused Keith Griffin to suffer great bodily injury and/or death to Lamar Whitehead.”
West makes a number of arguments as to why this instruction was insufficient. He argues that given the nature of the evidence, he could not be found to have proximately caused either Whitehead’s death or Griffin’s great bodily injury if the jury had been properly instructed. According to West, “[b]ecause the evidence shows that his only shooting action occurred after the injuries were inflicted he cannot be deemed to have proximately caused the injuries under the holding of People v. Bland (2002) 28 Cal.4th 313 [Bland].” Furthermore, the court’s instruction failed to define the proximate causation element of the enhancement pursuant to Bland because it “permitted the jury to find the firearm enhancement true as to appellant West even if Watson shot first and caused all the injuries before appellant West fired a shot. The language ‘acting at the same time, ’ does not preclude this finding because it does not make clear that the defendants must personally discharge the firearm at the same time, but rather it could be interpreted to require only a finding that they participated in the [carjacking] at the same time.” West also finds fault with the prosecutor’s closing argument discussion of the enhancements because the prosecutor did not inform the jury that West’s discharge of a weapon had to be “a substantial factor contributing to the death or injury of either victim.” He further contends that the facts of this case were different than those in cases such as Bland and In re Sergio (1991) 228 Cal.App.3d 588, because in those cases it was not possible to determine who caused the injury.
All of West’s arguments lack merit for a simple reason: they are based on a mischaracterization of the evidence. There was not substantial evidence, let alone convincing evidence, which established how or when either Griffin or Whitehead were shot. Under these circumstances the court properly instructed the jury.
West’s factual contentions amount to speculation built upon speculation. He contends that, with West across the street at the time, Watson fired at least two shots in the parking lot, and that one of them, fired after Watson dove between cars to avoid being hit by Griffin’s oncoming car, shattered the driver’s side window. He points out that Griffin, the driver of the Monte Carlo, was struck by a bullet that exited his body at the top of his arm. Based on these bare facts, and without citing to any expert or other testimony to support his theory, West speculates that before he ever fired a shot, Watson fired one that shattered the driver’s side window and struck Griffin.
West further speculates that the evidence “supports the inference that the same bullet hit both [Griffin and Whitehead], over any other interpretation because of ballistics evidence.” He contends the prosecution’s ballistics expert opined that the three of the four bullet fragments found (two in Griffin and a third found in Griffin’s car) “were definitely fired by the same gun, ” and that the expert testified that a.38, which was the caliber of weapon Griffin thought he saw in the hand of the man in the parking lot, was “the type of gun which fired the bullets.”
The People do not analyze these factual contentions in discussing West’s jury instruction claim. Our review of the record establishes these contentions are materially incomplete and, in some respects, inaccurate. West does not point to any evidence which establishes when Griffin was struck by a bullet. Griffin testified that, while in the parking lot, as he shifted in reverse, he saw a flash, his driver’s side window shattered, and he felt something land on his arm. Later, he learned he had been shot at some point during the attack, and his testimony indicated he believed he was shot when his driver’s side window was shattered. This is hardly evidence establishing that Watson shot him in the parking lot.
Furthermore, West ignores that the evidence indicated Griffin was struck by a bullet which entered his left armpit and exited at the top of his arm. However, as West refers to in his brief, the parties stipulated that Dr. Sharon Van Meter, an expert pathologist who autopsied Whitehead’s body, determined the bullet that killed him traveled left to right and down at a 30 degree angle, and from front to back at a 25 degree angle. West fails to cite any evidence which explains how a bullet could pass through Griffin as indicated and enter Whitehead on a somewhat downward, front-to-back angle.
West’s theory about Whitehead’s shooting also rests on two misrepresentations to this court about the record. Expressly relying on the parties’ stipulation regarding Van Meter’s findings, he writes in his opening brief, “Whitehead’s wound entered his left shoulder, going front to back at 25 degrees....” (Italics added.) However, the stipulation was that Van Meter found the bullet passed through Whitehead’s “arm”and entered his left chest. (Italics added.) The stipulation stated in relevant part:
“Dr. Van Meter would testify to the following: Whitehead’s cause of death was a bullet wound of the chest. Dr. Van Meter would describe the path of the bullet as follows: The entrance of the bullet wound was on the left arm, and it passes through the left arm, passing into the chest through the left lung, through the pericardial sac, through the heart, the liver, and the right lung, and exiting into the right chest wall. [¶] Also the direction of the bullet was left to right, downward at 30 degrees, and front to back at 25 degrees.”
West’s replacement of “arm” with “shoulder” in referring to the stipulation creates the false impression that a bullet entered Whitehead’s left side, supporting his theory that it came from Griffin’s body. In fact, the stipulated findings by Van Meter undermine his theory.
There was testimony, not cited by West in support of his argument, by a firefighter who examined Whitehead’s body at the scene that there was a gunshot wound in the “upper left portion of [Whitehead’s] shoulder.” However, the firefighter also testified, when asked about the gunshot wounds he saw, that “[t]here was one on the exterior, one on the interior of the arm, and one on the interior of the armpit.”
West further misrepresents the record to this court when he contends that the prosecution’s ballistics expert testified that a.38 “was the type of gun which fired the bullets, ” which aligns conveniently with Griffin’s testimony that the man confronting him “probably” had a.38. The ballistics expert actually testified that three of the four bullet fragments recovered (two from Griffin’s body, one inside the Monte Carlo) were consistent with bullets coming from either a.38 special or a.357 Magnum, andthese were not the exclusive weapons that could have fired the bullets involved.
The testimony of Griffin and E.L. further undermines West’s theory of the shootings. Griffin testified that he thought Whitehead was shot as Griffin was going onto Webster Street, when the man by the rock fired and the passenger-side window shattered. E.L. recalled that when Griffin drove onto Webster Street, West and the other men by the car behind her “just start pulling out guns and just started shooting every which way.” E.L. saw Whitehead’s head go back, and heard his friend, apparently Griffin, yell, “My friend’s down.” Their testimony, whether accurately describing what occurred or not, further indicates the circumstances surrounding Whitehead’s death were chaotic, and the precise moment and bullet that caused his death impossible to determine.
In short, there was not substantial evidence establishing that either Griffin or Whitehead were shot before West fired at the Monte Carlo. Given the evidence, the trial court’s jury instructions, which focused on concurrent causation, were proper. As the People point out, an enhancement for personal discharge of a firearm causing death “does not require that the defendant fire a bullet that directly inflicts harm” as long as the “defendant’s personal discharge of a firearm was a proximate, i.e., substantial, factor contributing to the result.” (Bland, supra, 28 Cal.4th at p. 338.)
Thus, in Bland, the accused and another individual each fired a weapon; one person was killed and two others injured. (Bland, supra, 28 Cal.4th at p. 318.) Although it was not known which shooter fired the shots that struck the injured victims (ibid.), the court upheld the enhancements for personal discharge of a firearm causing great bodily injury because an accused may proximately cause great bodily injury without personally inflicting the injury. (Id. at pp. 337-338.)
In People v. Sanchez (2001) 26 Cal.4th 834, the California Supreme Court addressed the issue of proximate causation in a case involving a shootout between two rival gang members, where the evidence could not establish which of them fired the shot that killed a bystander. (Id. at p. 838.) The court held that inability to prove actual or direct causation did not undermine evidence of proximate cause, and noted that it had “upheld a murder conviction even where the jury was uncertain whether the charged defendant actually shot the victim were served as an aider or abettor.” (Id. at p. 845.) “Indeed, it has long been recognized that there may be multiple proximate causes of a homicide, even where there is only one known actual or direct cause of death.” (Id. at p. 846.) “ ‘ “There may be more than one proximate cause of the death. When the conduct of two or more persons contributes concurrently as the proximate cause of death, the conduct of each is a proximate cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the time of the death and acted with another cause to produce the death.” ’ ” (Sanchez, at p. 847.) The Sanchez court concluded, “Although in this case it could not be determined who was the direct or actual shooter of the single fatal round, the evidence, with all reasonable inferences drawn in favor of the guilty verdicts, supports a finding that defendant’s commission of life-threatening deadly acts in connection with his attempt on [the rival gang member’s] life was a substantial concurrent, and hence proximate, cause of [the innocent bystander’s] death.” ’ ” (Id. at pp. 848-849.)
The court’s jury instruction was consistent with this case law. Substantial evidence presented at trial indicated that Watson and West fired multiple times at the car within moments of each other, that either could have been the proximate cause of the injuries, and that it was not possible to determine who shot Griffin or Whitehead. The jury was instructed that if it concluded that more than one person assaulted the two victims and they could not determine which person caused their injuries, they could find the enhancement allegation true if the People proved, among other things, that “[t]he amount or type of physical force the defendant used was enough that he alone could have caused” the injuries to the victims. The court’s instruction was sufficient in light of the case law we have discussed and the circumstances of this case. West’s argument is without merit.
VII. Voluntary Manslaughter Instruction
West also argues that the trial court erred when it refused his request for an instruction on attempted voluntary manslaughter because “he did not pull a gun until the confrontation in the parking lot occurred, and since that confrontation involved Griffin’s admitted attempt to run down Watson, he should have been entitled to have the jury decide if he was acting as an aider and abettor or if he was responding to his observation of a car which was attacking his cousin.” West further contends if he was the direct perpetrator of murder or attempted murder, “the jury did not need to necessarily find that he was acting to aid and abet the [carjacking], but it could have found that he was responding to the incident in the parking lot.” Thus, he argues, the court should have allowed the instruction on the grounds of imperfect self-defense and provocation. His arguments are meritless.
The trial court has a duty to instruct on lesser included offenses, even in the absence of a request, where substantial evidence would permit a reasonable jury could find that the defendant had committed only the lesser offense, and not the offense charged. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) Voluntary manslaughter, a lesser included offense of first degree murder, is “the unlawful killing of a human being without malice aforethought ‘upon a sudden quarrel or heat of passion.’ (§ 192, subd. (a).)” (People v. Cole (2004) 33 Cal.4th 1158, 1215.) “The defendant must actually, subjectively, kill under the heat of passion.” (People v. Steele (2002) 27 Cal.4th 1230, 1252.) In addition, the heat of passion must occur on provocation by the victim, under circumstances that would be adequate cause for an ordinarily reasonable person to “ ‘ “act rashly or without due deliberation and reflection, and from this passion rather than for judgment.” ’ ” (People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.)
The doctrine of imperfect self-defense can also mitigate a murder to voluntary manslaughter. “ ‘One acting in imperfect self-defense... actually believes he must defend himself from imminent danger of death or great bodily injury; however, his belief is unreasonable. [Citations.] Imperfect self-defense mitigates, rather than justifies, homicide; it does so by negating the element of malice.’ ” (People v. Randle (2005) 35 Cal.4th 987, 994, overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.)
Neither of the theories West advocated were supported by substantial evidence. Regarding his theory of provocation, there was no evidence presented at trial that he had any “sudden quarrel” with Griffin or Whitehead, that they said or did anything sufficient to provoke an ordinarily reasonable person to deadly violence, or that West acted under the heat of passion. Similarly, there was not substantial evidence that West believed himself or anyone else to be in imminent danger of death or great bodily harm when he shot at the Monte Carlo. There was no evidence that Griffin attempted to do any harm to West when he drove out of the parking lot. West speculates that he might have perceived the shooting in the parking lot to be a threat, contending he could have been reacting to Griffin’s effort to run down Watson, his cousin, but there was no substantial evidence introduced at trial that this was the case, that he was aware of Griffin’s effort, or that he acted in response to anything other than Johnson’s shout to shoot. “[S]peculation is not evidence, less still substantial evidence.” (People v. Berryman (1993) 6 Cal.4th 1048, 1081, disapproved on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Assuming for the sake of argument that the trial court incorrectly fail to instruct on attempted voluntary manslaughter, the error was harmless. Regarding the murder of Whitehead, the jury found the carjacking special circumstance allegation to be true with regard to West, thereby indicating that they found he acted with deliberation, rather than in the sudden heat of responding to a provocation. Regarding the attempted murder of Griffin, to which the felony-murder doctrine did not apply, the jury nonetheless must have found that West acted with the intent to commit, or aid and abet, the carjacking. This finding was fundamentally inconsistent with a finding of a sudden quarrel, an action in the heat of passion, or an actual, if unreasonable, belief in the need for self-defense. Thus, any error was harmless beyond a reasonable doubt because the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Wright (2006) 40 Cal.4th 81, 98-99.)
West and Johnson also claim that the cumulative effect of all the purported errors they raise on appeal requires reversal. We need not address this claim in light our conclusions herein.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.