THE PEOPLE v. RICHARD ANTHONY GOMEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANTHONY GOMEZ, Defendant and Appellant.

2d Crim. No. B204980

Decided: February 18, 2010

STATEMENT OF FACTS

The Charged Incident-The Royal Avenue Shooting

On May 13, 2006, Audrey Ines held a party for her daughter Amanda's 17th birthday at their second-floor condominium on Royal Avenue in Simi Valley.   Approximately 30 people attended the party, including Daniel Moreno 4 and his brother, Rafael Lanuza, both members of the Latin Pride Cholos gang, and their girlfriends, Jasmine Assadolzadeh and Brittany Robles.   Moreno was also a member of the Brown Life Familia gang.   Both of Moreno's gangs were rivals of the West Side Locos gang.

At some point during the night, Audrey went downstairs and directed her daughter Rachel's boyfriend, Everett Santos, to park his car in her garage directly below the condominium.   As Audrey was standing in the alley that leads to her garage, a white Mustang occupied by four or five young men drove up.   Santos told Audrey, “I know that little F-er, and you don't want him here.”   When Amanda came down and told the occupants of the Mustang to leave, they started yelling profanities at her.   Before long, several partygoers, including Moreno and Lanuza, were either outside or on the condominium's balcony yelling at the occupants of the Mustang.   When the Mustang started to back out of the alley, several people ran out and started throwing rocks and bottles at the vehicle.   As the Mustang drove away, its occupants yelled, “West Side Locos,” and flashed gang signs.

About 45 minutes later, Ivan Velasquez and Matt Valencia were leaving the party when they were approached by two males who had covered their faces with their shirts.   The men asked, “Well, do you bang?”   When Velasquez responded, “No,” they said, “All right,” and then claimed a gang that Velasquez could not recall.   The shorter of the two men was holding a gun in his gloved hand.   After the two men left and continued walking in the direction of the condominium, Velasquez called Amanda to warn her.   While Amanda was talking to Velasquez on the phone, she heard gunshots.

Lanuza and Robles were standing at the bottom of the two flights of stairs that led to the condominium when they saw two men with their faces covered to their ears walking toward them.   Lanuza told Robles to go upstairs.   When she reached the second flight of stairs, she heard gunshots.   As Lanuza was following Robles, he turned, saw the gunman fire twice, and ducked.   It appeared to Lanuza that the gunman fired both shots into the air.

Jasmine Lopez was near the top of the stairs to the condominium when she saw two Hispanic males approach near a light on the side of the building.   One of the men pointed a gun straight up in the air, shouted, “West Side Locos,” then fired.   Lopez testified that she ran inside the condominium after she heard the first gunshot.   She also testified, however, that she made it inside the condominium before the first shot was fired.

Although both men's faces were covered with a bandana or something similar, Lopez could see the gunman's face “a little bit” and identified him as appellant.   Lopez's friend, Lorissa, had dated appellant, and had given Lopez a photograph of the two of them that had been hanging by Lopez's bed for three years.   When Lopez looked at the photograph again after the incident, she recognized appellant as the gunman.   Lopez also immediately recognized appellant when he came to her house with her friend, Monisa, sometime after the shooting.   She also identified him from a photographic lineup, although she did so because he was the only person she recognized.   She admitted hearing a rumor that “Richard” or “Richard Gomez” was the shooter before she viewed the lineup, and remembered at the time that “Richard” was written on the back of the photograph hanging in her room.

Moreno was standing on the walkway next to the bottom of the stairs when two men with covered faces walked up to him.   Although Moreno could tell the men were Hispanic, he was unable to recognize them because their faces were covered.   Moreno sensed trouble and yelled for everyone to go inside.   As he turned and ran upstairs, he heard two or three gunshots.   He was about two steps up the second flight of stairs when the shooting stopped, then continued running until he was inside the condominium.

Audrey was in her living room near the screen door when she heard three gunshots.   Right after the shooting stopped, she scratched her leg on the jagged edges of a bullet hole in the screen door.   She immediately called 911.

The police recovered four .380 caliber shell casings from the scene.   Bullet holes were found in the screen door and living room ceiling, and a bullet impact strike about the same size as the holes was identified on the lower banister of the staircase.   A few months before trial, workers removed a bullet embedded in the banister.   The bullet that pierced the screen door and ceiling was never recovered.

The Uncharged Incident-The Angela Street Shooting

A few days after the shooting, at about 1:00 or 2:00 a.m., Moreno was at home with Lanuza and Robles when someone fired several shots at their house.   The following morning, the police recovered five shell casings and five expended bullets or bullet fragments from the scene.

Expert Ballistics Testimony

Rebecca McConnell, a crime scene investigator with the Simi Valley Police Department, conducted an investigation of the Royal Avenue shooting.   Based on the location and angle of the bullet holes in the screen door and ceiling at the Ineses' condominium, McConnell determined that both holes were caused by a single bullet fired “from down towards the lower section of the staircase.”   She also determined that the bullet recovered from the banister had been fired “straight on” from the direction of the walkway.   Although McConnell could “[n]ot absolutely” rule out the possibility that the bullet that entered the screen door and ceiling had ricocheted off another surface, the shape of the hole in the screen and the absence of any ricochet marks in the surrounding area led her to conclude that “the first impact was to the screen door.”

Geoff Bruton, a forensic scientist with the Ventura County Sheriff's Department, analyzed the casings recovered from both shootings and the bullets and bullet fragments recovered from the Angela Street shooting.   Bruton determined that all the casings were fired from the same .38 caliber gun.   He also concluded that three of the five expended bullets were fired by the same gun, and that one of the fragments appeared to have been as well.   Four of the bullets were identified as .38 caliber;  the caliber of the fifth bullet could not be determined.

Expert Gang Testimony

Simi Valley Police Officer Travis Coffey, a gang expert, testified that the West Side Locos and Brown Life Familia both operated in the Simi Valley area.   The West Side Locos had about 30 active members, plus 10 or 20 associates.   The gang maintained respect through fear and intimidation by, among other things, yelling their gang name and “hitting up” (i.e., asking others their gang affiliation).   The gangs' primary activities included robberies, assaults with a deadly weapon, batteries, vandalism, and gang graffiti.

Appellant was jumped into the West Side Locos in May 2003, when he was about 14 years old.   His moniker is “Menace.”   Appellant was shown in a photograph flashing the West Side Locos' hand signs with other members of the gang, including Andrew Ayungua.   Josh Hanna was identified as another member of the gang who was friends with appellant.

Although the Latin Pride Cholos were not yet a “validated” gang, they already had 10 members and were considered “up and coming.”   Officer Coffey opined that Moreno was a member of both the Latin Pride Cholos and Brown Life Familia.   Members of the West Side Cholos, who committed the Royal Avenue shooting, would have earned the gang respect and improved its reputation.

Ayungua's Testimony

Andrew Ayungua, whose moniker is “Scrappy,” was jumped into the West Side Locos after he met members of the gang in juvenile hall.   Ayungua knew appellant as his fellow gang member “Menace.”   Other fellow members were Steven “Mousey” Comi, Josh “Soldier” Hanna, and Nick “Lil One” Macias.   Ayungua also knew Moreno as a shot caller for the Brown Life Familia.

At the time of the shooting, appellant and Comi were staying at Macias's house.   Ayungua knew appellant to be a “violent guy.”   The two of them had fought alongside each other in three group fist fights.   Ayungua had once seen appellant with a bat and knew he had hit someone with it, although he did not witness the incident.   On two occasions, including the day before the Royal Avenue shooting, Ayungua had seen appellant playing with a gun that was kept hidden in the garage at Macias's house.   Macias got the gun from a friend who stole it from his stepfather.   According to Ayungua, the gun was kept there by “all three of them.”

On the night of the Royal Avenue shooting, Ayungua and Comi were driving around in Ayungua's white Mustang when someone he knew only as “Smokey” invited them to a party.   Ayungua drove Comi and Smokey to the location of the party and parked.   Smokey got out of the car and went to make sure they would be welcome.   While Smokey was inside the condominium, a group of males that included Moreno and Lanuza came out on the balcony, pointed at Ayungua's car, and then rushed outside.   Smokey ran to the car yelling at Ayungua to leave and said, “They're here,” referring to members of the Latin Pride Cholos and Brown Life Familia.   A group of people were chasing Smokey and throwing rocks and bottles at Ayungua's car.   Ayungua heard members of the crowd yelling “Menace,” “Scrappy,” “Mousey,” and “Lil One.” Comi yelled out, “West Side,” as he hung halfway out of the passenger side window.   The group chased the car and continued throwing bottles as they drove away.

Ayungua drove to Macias's house to “chill” and did not intend to return to the condominium.   After he saw the damage to his car, he was angry and wanted his friends to return with him to “have a rumble with them” and “beat them down.”   Ayungua testified that he did not want anyone to bring a gun, yet he acknowledged that someone mentioned a gun at some point during the night:  “Everybody always mentions-Every time we would do something, they would always mention about a gun.”   However, he “[n]ever took anybody serious about it.”   Ayungua did urge everyone to arm themselves with sticks and brought a bat “because they ha[d] bottles and stuff, too.”   Ayungua asked Macias to come with him, but he told him not to bring the gun and said, “Don't let nobody know that you have it.”   Macias's mother would not allow him to leave, so Ayungua, Comi, and Smokey went without him.

Ayungua drove to “Violet's” house on Royal Avenue.   Appellant and Hanna were there with Violet and had been smoking methamphetamine.   After Ayungua told them what had happened, appellant and Hanna decided to join him.   Ayungua drove appellant, Comi, Hanna, and Smokey back to Macias's house, where they all went inside.   After Macias reiterated that his mother would not let him leave, Ayungua, appellant, Comi, Hanna, and Smokey left in Ayungua's car.

Ayungua returned to the party and parked around the corner.   Ayungua did not see anyone bring a gun into his car;  as far as he knew, they were armed with nothing other than sticks, a bat, and their fists.   Appellant, who was sitting in the front passenger seat and wearing gloves, said he was going by himself to “handle something.”   It seemed to Ayungua that appellant “just kind of implied that he wanted to blast somebody, but at the same time-he implied it, and then he didn't at the same time.”

Appellant and Hanna got out of the car and walked out of sight in the direction of the party.   Ayungua did not see them carrying any weapons.   After about five minutes had passed, Ayungua and the others became worried that appellant and Hanna were getting beaten up.   The three men armed themselves with sticks and walked toward the party.   On the way, they “hit up” a group of males by asking what gang they claimed.   Shortly thereafter, people came running toward them from the location of the party and said, “Your homies are over there.”   Ayungua then heard a pop of a firecracker, followed by two gunshots.   Ayungua and Smokey ran back to the car, while Comi ran toward the party.   Shortly thereafter, appellant, Hanna and Comi returned to the car and Ayungua drove away.   As Ayungua was driving back to Macias's house, someone asked appellant, “How many times did you shoot?”   He responded, “They threw a firecracker at me, and I fired twice back.”   Appellant and Hanna said that they had stopped some people and showed them the gun.   Hanna told them that after someone threw a firecracker at them, “Menace started dumping on them.”   Appellant was smiling and said, “We did it․  We did what we were supposed to do.”   Ayungua dropped appellant, Comi, and Hanna off at Macias's house, then drove Smokey home.

Appellant later told Ayungua that a couple of days after the Royal Avenue shooting, he and Macias drove a stolen car to Moreno's house, fired several shots at it, and drove away.   Appellant also said they parked the car and left it after it was damaged by hitting a berm.

Ayungua was later contacted by Simi Valley Police Officer Wismar, who told him he could be sent to prison for having driven appellant to the location of the Royal Avenue shooting.   Officer Wismar implied that Ayungua could lose custody of his children if he did not cooperate with the police.   Although the officer also told him that he was not in trouble and would be able to go home no matter what he said, Ayungua believed he would go to prison if he did not talk.

Ayungua initially denied any knowledge of the Royal Avenue shooting.   After discovering that his wife had told Officer Wismar what she knew about the incident, Ayungua told the officer what had happened.   No promises were made to Ayungua by the police or the prosecutor in the case.   He did not want to testify because doing so put him and his family in danger, but he had no choice because he was under subpoena.   He knew that testifying against gang members marked him for death.   At the time of trial, Ayungua had not been charged with any crimes as a result of the incident and was living with his wife and children.   Misdemeanor charges for receiving stolen property and driving without a license were pending against him as a result of other incidents.   The prosecutor never told him that he could avoid criminal prosecution by testifying, nor was that his motive for doing so.   He was testifying so that he could keep his children.

DISCUSSION

I.Accomplice Instruction

Appellant contends the court violated its sua sponte duty to instruct the jury on accomplice testimony principles as to prosecution witness Ayungua.   He claims Ayungua could have been charged and found guilty as an aider and abettor of appellant's crimes because he drove appellant to the scene of the crime and it was foreseeable to him that appellant would commit assault with a firearm and attempted murder.

When the evidence shows that a prosecution witness may be an accomplice, the trial court has a sua sponte duty to instruct the jury on the principles of law governing accomplice testimony, including the need for corroboration.   (People v. Tobias (2001) 25 Cal.4th 327, 331;  CALCRIM No. 334.)   Section 1111 provides:  “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense;  and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”   Error in failing to instruct on accomplice liability is deemed harmless where other evidence corroborates the accomplice's testimony.  (People v. Cook (2006) 39 Cal.4th 566, 601.)

“An accomplice is a person ‘who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’  [Citations.]  In order to be an accomplice, the witness must be chargeable with the crime as a principal ( 31) and not merely as an accessory after the fact ( 32, 33).  [Citation.]   An aider and abettor is chargeable as a principal, but his liability as such depends on whether he promotes, encourages, or assists the perpetrator and shares the perpetrator's criminal purpose.  [Citation.]  It is not sufficient that he merely gives assistance with knowledge of the perpetrator's criminal purpose.   [Citations.]  (People v. Sully (1991) 53 Cal.3d 1195, 1227.)   Accomplice status is a question of fact for the jury unless the evidence permits only a single inference.  [Citations.]  Defendant must establish the accomplice status of a prosecution witness by a preponderance of the evidence.  [Citation.]”  (Ibid.)

‘A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.’  [Citations.]”  (People v. Hill (1998) 17 Cal.4th 800, 851.)  “ ‘A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime.   The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.  [Citation.]’  [Citation.]   Liability under the natural and probable consequences doctrine ‘is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.’  [Citation.]”  (People v. Medina (2009) 46 Cal.4th 913, 920 (Medina ).)  “ ‘A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury.’  [Citations.]”  (Ibid.)

We conclude the court erred in failing to instruct on accomplice testimony principles as to Ayungua because there was evidence from which the jury could have found him to be an accomplice to the charged crimes.   Ayungua admitted recruiting appellant to join him in committing an assault.   Although Ayungua testified he did not know that appellant would use a gun and claimed he took steps to ensure that the weapons they used would be limited to fists and sticks, the jury was free to reject this self-serving testimony.  (People v. Beeman (1984) 35 Cal.3d 547, 558-559.)   In any event, the issue is not whether Ayungua actually believed that appellant would use a gun or whether he wanted him to do so.   In order to find that Ayungua was an accomplice to appellant's crimes, the jury merely had to find that appellant's use of a gun would have been reasonably foreseeable to an objectively reasonable person in Ayungua's position.  (Medina, supra, 46 Cal.4th at p. 920.)   The evidence was sufficient for the jury to make such a finding.

Our Supreme Court's recent decision in Medina, 46 Cal.4th 913, is particularly instructive on this point.5  In Medina, the Court found sufficient evidence to convict two gang members of aiding and abetting a murder and attempted murder committed by a fellow gang member on the ground that the shooting of the victim was a natural and probable consequence of the gang fight in which they had participated.   The facts were essentially as follows:  Jose Medina, George Marron and Raymond Vallejo, all self-described members of the Lil Watts gang, attended a party at the residence of Manuel Ordenes.   The victim, Ernie Barba, arrived at the house to pick up a “CD.” (Id. at p. 916.)   When the front door was opened, Barba asked, “What's up?”  (Ibid.) Vallejo replied, “Where are you from?”  (Ibid.) Ordenes, a former gang member, understood this to mean “what gang are you from?”  (Id. at p. 917.)   Ordenes also knew the question was an “aggression step” and that if the individual asking the question was a rival gang member, the situation could escalate into a fight and even death.  (Ibid.) After Ordenes told them to go outside, Medina, Marron and Vallejo joined Barba on the front porch.   The three men continued to ask Barba for his gang affiliation, and he finally replied, “Sanfer,” which signified a rival gang.  (Ibid.) Vallejo responded, “Lil Watts.”  (Ibid.) Vallejo then punched Barba, and Medina and Marron joined in.   Ordenes intervened and was able to escort Barba to his car, which was parked in front of the house.   Barba and his companion were about to leave when the companion heard someone say, “get the heat,” which she understood to mean, “get the gun.”  (Ibid.) As Barba was driving away, Medina walked into the street and fired several shots, killing Barba.  (Ibid.)

Marron and Vallejo were convicted, along with Medina, of the first degree murder of Barba and the attempted murder of his passenger.   The Court of Appeal reversed the convictions of Marron and Vallejo on the finding that the evidence was insufficient to prove that Medina's act of firing the gun was not a natural and probable consequence of the target offense of simple assault which they had aided and abetted.  (Medina, supra, 46 Cal.4th at p. 919.)   In reaching its conclusion, the court reviewed other gang violence cases affirming the defendants' liability as aiders and abettors 6 and “distilled six factors it considered material to their holdings:  ‘(1) the defendant had knowledge of the weapon that was used before or during his involvement in the target crime;  (2) the committed crime took place while the target crime was being perpetrated;  (3) weapons were introduced to the target crime shortly after it ensued;  (4) the fight which led to the committed crime was planned;  (5) the gangs were engaged in an ongoing rivalry involving past acts of violence;  or (6) the defendant agreed to or aided the commission of the committed crime.’ ”  (Id. at p. 921.)   After observing that more than one of these factors was present in each of the reviewed cases, the court noted that none were present in the instant case.  (Ibid.)

In reversing, the Supreme Court faulted the court for “focusing on facts that were missing, rather than on the actual evidence presented.  [Citation.]”  (Medina, supra, 46 Cal.4th at p. 921.)   In concluding that the shootings were a natural and probable consequence of the fistfight that Marron and Vallejo aided and abetted, the Court noted that Ordenas, as a former gang member, “foresaw precisely that result.”  (Id. at p. 922.)   The Court further reasoned that “[g]iven the gang-related purpose of the initial assault and the fact that, despite being outnumbered, Barba exhibited strength against three aggressors who could not avenge themselves in response to what they considered disrespectful behavior by Barba, the jury could reasonably have found that a person in defendant's position (i.e., a gang member) would have or should have known that retaliation was likely to occur and that escalation of the confrontation to a deadly level was reasonably foreseeable as Barba was retreating from the scene.  [Citation.]”  (Id. at pp. 922-923.)

The Court also referred to expert testimony indicating that other members of the defendant's gang had committed gun offenses and reasoned that “because Lil Watts members had challenged a rival gang member, the jury could reasonably have inferred that, in backing up that challenge, a Lil Watts member either would have been armed or would have or should have known a fellow gang member was or might be armed.”  (Medina, supra, 46 Cal.4th at p. 923.)   While there was no evidence of an ongoing rivalry between the two gangs, “escalating the violence with a gun was a foreseeable way for a Lil Watts gang member to exact revenge for Barba's initial disrespect and his later show of strength against the three aggressors, thereby establishing Lil Watts's turf domination in the neighborhood.”  (Ibid.)

In reaching its conclusion, the Court cited with approval People v. Montes, supra, 74 Cal.App.4th, page 1056, for the proposition “that escalating violence is a foreseeable consequence to be expected in gang confrontations.   [Citation.]”  (Medina, supra, 46 Cal.4th at p. 926.)   The court similarly quoted from People v. Montano, supra, 96 Cal.App.3d, page 227, as follows:  “ ‘․ The frequency with which ․ gang attacks result in homicide fully justified the trial court in finding that homicide was a “reasonable and natural consequence” to be expected in any such attack.   It is, therefore, clear that [the defendant's] guilt of aiding and abetting an attempted murder does not depend upon his awareness that [either codefendant], or both of them, had deadly weapons in their possession.  [Citation.]”  (Medina, supra, at p. 926.)

In light of these principles, it is apparent the jury could have found that Ayungua was an accomplice to the shooting because appellant's possession and use of a gun was a natural and probable consequence of the assault Ayungua admittedly aided and abetted.   Ayungua recruited appellant, whom he described as “ a violent guy,” to join him in retaliating against longstanding rival gang members for damaging his car and disrespecting him and their fellow gang members.   Ayungua also knew appellant “shared” a gun with him and Macias that was kept at the house where he was staying, and noted that someone “always” mentioned using a gun whenever a dispute arose.   Although Ayungua made a point of stating he told Macias not to bring the gun, he did not claim he conveyed this to appellant.   Ayungua also knew appellant had the opportunity to retrieve the gun when they returned to Macias's house after leaving Violet's house.   He had also seen appellant in possession of the gun only the day before.   Moreover, when they arrived at the location of the shooting, appellant donned gloves and said he was going by himself to “handl[e] something.”   Ayungua admitted construing this as appellant “imply[ing] that he wanted to blast somebody,” then tried to retract his admission by claiming “he implied it, and then he didn't at the same time.”   He also admitted acting as appellant's getaway driver.   This evidence was sufficient to support a finding that Ayungua had aided and abetted appellant in committing the target offense of assault and that appellant's use of a gun was reasonably foreseeable.   The court was therefore obligated to instruct the jury to determine whether Ayungua was appellant's accomplice and, if so, how to evaluate his testimony.

We conclude, however, that the error in failing to instruct in this regard was harmless.  “A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is sufficient corroborating evidence in the record.  [Citation.]  ‘Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense.  [Citations.]’  [Citation.]   The evidence ‘is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’  [Citation.]”  (People v. Lewis (2001) 26 Cal.4th 334, 370.)

Lopez's testimony identifying appellant as the gunman provides sufficient corroboration because it tends to connect appellant to the crime in such a way as to satisfy the trier of fact that Ayungua's testimony was truthful.7  Appellant's claim that Lopez's testimony was “frankly unbelievable” finds no support in the record.   Lopez recognized appellant from a photograph she had of him, and instantly recognized him as the gunman when he came to her house after the shooting.   She also had the opportunity to see him in the light at the scene of the crime, and was able to identify him from a photographic lineup.   While appellant argues that Lopez's identifications may have been suggested by the photograph she had of him and by hearing from others that he was the shooter, those factors merely go to the weight to be accorded her testimony.   In any event, appellant did not offer any expert eyewitness identification testimony indicating that Lopez's exposure to the photograph undermined the identification.   Lopez also immediately and unequivocally identified appellant as the gunman when she met him in person after the shootings.

Lopez's testimony identifying appellant as the gunman was sufficient by itself to establish that fact.  (People v. Young (2005) 34 Cal.4th 1149, 1181.)   We need not decide, however, if the jury would have found that fact true based solely on Lopez's testimony.   We need only determine whether her testimony connects appellant to the crime in such a way as to satisfy the jury that Ayungua's testimony was truthful.   It does.   Appellant therefore fails to establish that he was prejudiced by any error in failing to instruct the jury on how to evaluate the testimony of an accomplice.  (People v. Lewis, supra, 26 Cal.4th at p. 370.) 8

To the extent appellant complains the jury was not instructed to view the testimony of an accomplice with distrust (CALCRIM No. 334), we note that other instructions were sufficient to inform the jury that Ayungua's testimony should be viewed with caution.   For example, the jury was instructed that in assessing witness credibility it should consider whether the witness had committed a crime or other misconduct, had a personal interest in the matter, or had been promised leniency or immunity for his or her testimony.  (CALCRIM Nos. 226, 316.)   The jury was further instructed to view with caution any oral statements attributed to appellant that were written or otherwise documented.  (CALCRIM No. 358.)   While appellant notes the jury was also instructed that the testimony of only one witness could be deemed sufficient to prove any fact and to refrain from speculating about why others who may have participated in the crimes were not prosecuted (CALCRIM Nos. 301, 373), the jury was also instructed to consider all the instructions together (CALCRIM No. 200).9  Assuming the jury followed these instructions, as we must (People v. Boyette (2002) 29 Cal.4th 381, 431), we conclude it is not reasonably probable that appellant would have received a more favorable result if the jury had also been instructed to determine whether it should view Ayungua's testimony with distrust.  (People v. Watson (1956) 46 Cal.2d 818, 837;  People v. Lewis, supra, 26 Cal.4th at p. 371 [applying Watson standard of harmless error review to defendant's claim that he was prejudiced by the court's failure to instruct the jury to view an accomplice's testimony with distrust].)

II.

Sentencing

Appellant asserts that the matter should be remanded for resentencing because the court was unaware of its discretion to (1) strike the gang enhancement allegations found true as to each count under section 186.22, subdivision (g);  and (2) impose a concurrent term on the section 246 charge (count 5) in accordance with section 669.   While we reject appellant's claim with regard to striking the gang enhancement allegations, we agree that the record affirmatively reflects the court's misunderstanding that it had no discretion to impose a concurrent term on count 5. Accordingly, we shall remand for resentencing as to that count only.

A.

Background

In their sentencing memorandum, the People argued that pursuant to section 186.22, subdivision (g), appellant should be sentenced to an additional 10-year term on one of the attempted murder counts, and one-third the midterm on each of the two remaining attempted murder counts.   As to appellant's conviction for shooting at an inhabited dwelling (§ 246) as charged in count 5 of the information, the People noted that the sentence was governed by subdivision (b)(4) of section 186.22, which provided for an indeterminate term of 15 years to life.10  The People further noted that “[p]ursuant to ․ section 186.22[, subdivision] (g), the court may only strike the additional punishment prescribed by this section in unusual cases where the interests of justice would best be served, and only if the [c]ourt specifies on the record and enters into the minutes of the case the specific circumstances indicating that the interests of justice would best be served by that disposition.”   The People urged the court to sentence appellant to consecutive terms for the three attempted murders and the section 246 charge, plus all the firearm and gang enhancement allegations, for a total term of 70 years to life.   Appellant did not file a sentencing memorandum.

At the sentencing hearing, the court tentatively ruled that appellant would be sentenced to a total determinate term of 35 years, plus an indeterminate term of 15 years to life.   In arriving at the determinate sentence, the court imposed the low term of five years on count 1 (attempted murder), then added twenty years for the firearm enhancement, plus ten years for the gang enhancement under subdivision (b) of section 186.22.   In imposing the low term, the court found as mitigating factors appellant's “extreme youth, his lack of any adult record, and the fact that no one was actually injured.”   The court imposed concurrent sentences on the two remaining attempted murder counts, reasoning “that all of the offenses occurred at the same time within seconds of each other as fast as the trigger could be pulled on the gun.  [¶] The victims were all standing together.   The jury found pursuant to law that each person is an individual victim.   But one has to think about the common sense reality of whether they were being singled out as individual victims or whether it was just a group shooting.”

The court thereafter proceeded to impose a consecutive indeterminate term of 15 years to life for the section 246 offense charged in count 4. In doing so, the court stated:  “The same analysis could have applied to [c]ount 5 except that the statutory requirements and the fact that with the enhancement, the statutory enhancement, it can't be concurrent, because the offense with the statutory enhancement makes it an indeterminate sentence which cannot be concurrent to-- with a determinate sentence and which mean [sic ] that it cannot-- it also cannot be the principal term.”

B.

Analysis

Appellant contends the record reflects the court's misunderstanding regarding its discretion to strike the gang enhancement allegations found true as to each count, and to impose a concurrent term on count 5. The People respond that appellant forfeited these claims because his trial attorney not only failed to raise them at the sentencing hearing, but stated his agreement with the court's decision.   The People further contend the claims cannot be raised on direct appeal because the record does not affirmatively reflect the court misunderstood its discretion in either regard asserted by appellant.11

We reject the People's assertion that appellant forfeited his claims by failing to raise them in the trial court.   The case the People cite in support of their contrary position, People v. Scott (1994) 9 Cal.4th 331, merely states that “complaints about the manner in which the trial court exercises it sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.”  (Id. at p. 356, italics added.)   Appellant does not complain about the manner in which the court actually exercised its discretion, but rather claims the court did not exercise that discretion.   “ ‘[A] ruling otherwise within the trial court's power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law.  [Citations.]’  [Citation.]  ‘Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal.  [Citations.]’  [Citation.]   Where, as here, a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination.   [Citations.]' ”  (People v. Downey (2000) 82 Cal.App.4th 899, 912.)   Relief is warranted on direct appeal, however, only when the court's misunderstanding of its discretion is affirmatively reflected in the record.  (See People v. Fuhrman (1997) 16 Cal.4th 930, 945.)

According to appellant, the court's failure to exercise its discretion to strike the gang enhancement allegations and to sentence him concurrently on count 5 are both affirmatively reflected in the record.   As to the gang enhancements, he refers us to two comments the court made in the course of the proceedings.   The first comment was made during a pretrial hearing in which the court encouraged appellant to accept the prosecution's 16-year deal, which included the dismissal of all the attempted murder and assault with a firearm charges.   After warning appellant it would be “a serious mistake” to reject the deal, the court stated, “while there is some sentencing discretion, if the jury comes back with the attempt murder or the assault with the shooting of the house with the enhancement, then the Court cannot possibly get down to 16 years under any circumstances no matter how hard I try to work.”   The second remark was made at the sentencing hearing, when the court stated it was “hard pressed to see any other legitimate sentence” than the one it actually imposed.

Neither of these remarks affirmatively reflect that the court misunderstood its discretion to strike the gang enhancement allegations.   The pretrial comment was true regardless of whether the court was prepared to exercise its discretion to strike all of the gang enhancements because the firearm enhancement by itself would subject appellant to a 20-year sentence.   As for the comment at sentencing, the court may have simply been stating its conclusion that this is not one of those “unusual cases” in which it would be appropriate for the court to exercise its discretion to strike one or more of the gang enhancements.   Appellant's attempt to construe these comments as affirmative expressions of the court's misunderstanding that it had no discretion to strike the gang enhancements is also fatally undermined by the fact that the prosecution's sentencing memorandum, which we presume the court read and considered, expressly informed the court that it had such discretion.

We agree with appellant, however, that the record affirmatively reflects the court's misunderstanding that it had no discretion to impose a concurrent term on count 5. After the court imposed concurrent sentences on the subordinate counts for attempted murder and explained its reasons for doing so, it stated “[t]he same analysis could have applied to [c]ount 5 except that the statutory requirements and the fact that with the enhancement, the statutory enhancement, it can't be concurrent, because the offense with the statutory enhancement makes it an indeterminate sentence which cannot be concurrent to-- with a determinate sentence and which mean [sic ] that it cannot-- it also cannot be the principal term.”   Section 669, however, merely provides that an indeterminate sentence “may be imposed to run consecutively” with any other term.12  The court therefore had discretion to decide whether the 15-year-to-life sentence should be consecutive or concurrent to the determinate term.   (People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1557, fn. 7.) Because the record affirmatively reflects the court did not exercise that discretion, remand for resentencing on count 5 is required.  (People v. Downey, supra, 82 Cal.App.4th at p. 912.) 13

III.

CALCRIM No. 600

Appellant contends the court erred in instructing the jury with the “kill zone” portion of CALCRIM No. 600.14  He labels the instruction as argumentative, ambiguous, and unwarranted.   He also claims the instruction “erroneously instructed that the existence of a ‘kill zone’ is an independent doctrinal basis for inferring intent to kill.”   According to appellant, the instruction allowed the jury to find him guilty of the attempted murders of Lopez and Robles without finding he had the specific intent to kill them.

To the extent appellant contends the instruction was ambiguous or otherwise required clarification, he forfeited those claims by failing to request such clarification in the trial court.  (People v. Hillhouse (2002) 27 Cal.4th 469, 503;  see People v. Campos (2007) 156 Cal.App.4th 1228, 1236, 1243 [recognizing that the defendants forfeited their “challenges to the clarity and completeness” of CALCRIM No. 600 by failing to raise them below].)   While appellant's failure to object to the instruction does not preclude him from arguing on appeal that it incorrectly states the law and affected his substantial rights (§ 1259), he fails to make such a showing.

To find a defendant guilty of attempted murder, the jury must find a specific intent to kill coupled with a direct but ineffectual act toward its commission.  (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.) In People v. Bland (2002) 28 Cal.4th 313 (Bland ), our Supreme Court held that a defendant can harbor a “concurrent intent” to kill more than one person.  (Id. at p. 329.)   The court also rejected the conclusion that a defendant could be found guilty of attempted murder on the theory that his intent to kill another person “transferred” to the unintended victim.  (Id. at p. 331.)   The court recognized, however, that “[t]he conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them.   As to the nontargeted members of the group, the defendant might be guilty of crimes such as assault with a deadly weapon or firing at an occupied vehicle.   [Citation.]  More importantly, the person might still be guilty of attempted murder of everyone in the group, although not on a transferred intent theory.”  (Id. at p. 329.)   The court explained:  “This concurrent intent 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.”  (Id. at p. 331, fn. 6.)

The court recently affirmed the validity of the kill zone theory of attempted murder, and in particular the giving of CALCRIM No. 600, in cases in which a gang shooting results in multiple attempted murder counts.  (People v. Stone (2009) 46 Cal.4th 131, 136-139 (Stone ).)   The court stated the point succinctly as follows:  “[A] person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind.   An indiscriminate would-be killer is just as culpable as one who targets a specific person.”  (Id. at p. 140.)   We are bound by this conclusion.   (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

In dicta, the court in Stone rejected both appellant's complaint that the instruction could have been construed by the jury to allow multiple attempted murder convictions if he intended to kill “anyone” rather than “everyone,” as well as his claim that the last sentence of the instruction erroneously refers to an intent to “harm” rather than an intent to “kill.”  (Stone, supra, 46 Cal.4th at p. 138, fn. 3.) While the court agreed that the use of “anyone” was arguably ambiguous, a reasonable jury would probably interpret it to mean an intent to kill “any person who happens to be in the kill zone, i.e., everyone in the kill zone.”  (Ibid.) Moreover, the instruction alternatively refers to both “everyone” and “anyone” in the kill zone, and also requires a finding that the defendant specifically intended to kill each victim.   As for the instruction's use of the word “harm” in Stone, the court merely noted that “it would be better for the instruction to use the word ‘kill’ consistently rather than ‘harm.’ ”  (Ibid.) Again, in light of the fact that the instruction requires a specific intent to kill each victim, no reasonable juror would interpret it to allow a conviction based on a mere intent to harm.   (People v. Campos, supra, 156 Cal.App.4th at p. 1243.)   CALCRIM No. 600 correctly states the elements of the offense of attempted murder, and the kill zone theory it refers to is merely a reasonable inference the jury may be entitled to draw from the evidence in a given case.  (Stone, supra, at p. 137.)   That portion of the instruction was merely “superfluous” and did not amount to an incorrect statement of the law or otherwise lighten the prosecution's burden of proof.  (Campos, supra, at p. 1243.)

We also reject appellant's assertion that the instruction was improperly given based on the Supreme Court's statement that the kill zone theory applies only “ ‘․ 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․’ ”  (People v. Bland, supra, 28 Cal.4th at p. 329.)   The evidence that appellant approached an individual standing near the bottom of a stairway occupied by at least two other individuals and rapidly fired three shots in their direction is sufficient to support such a conclusion.   As we explain below, this evidence is also sufficient to establish that appellant harbored the specific intent to kill each of his three victims.  (People v. Smith (2005) 37 Cal.4th 733, 743.)   In light of this evidence, it is not reasonably probable that appellant would have achieved a more favorable result had the jury not been instructed with the challenged portion of CALCRIM No. 600.  (People v. Campos, supra, 156 Cal.App.4th at p. 1244.) 15

IV.

Sufficiency of the Evidence

Appellant contends the evidence is insufficient to support his convictions for attempted murder.   He claims the jury could not reasonably have found that he had the specific intent to kill Moreno, much less Lopez and Robles.

In reviewing claims of insufficient evidence, “ ‘ “․ we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  [ Citations.]” ’  [Citation.]  ․ ‘[W]e presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.’  [Citation.]”  (People v. Wilson (2008) 44 Cal.4th 758, 806.)

Appellant claims that the evidence, construed in the light most favorable to the judgment, is susceptible to only one conclusion:  that he merely intended to frighten Moreno and the other victims when he fired his gun at them.   According to appellant, “[t]he record contains no evidence that appellant intended to kill Moreno on May 13, no evidence that he aimed at him, shot at him, threatened him, spoke to him or even recognized him.”   The record belies this assertion.   While there was evidence that appellant did not appear to aim at anyone when he fired his gun, one of the bullets lodged in the banister not far from where Moreno, one of the rival gang members he came to confront, was standing.   Another bullet travelled up the stairway where Lopez and Robles were located, and pierced the screen door through which they sought safety.   The evidence that appellant purposefully fired in the direction of all three of his victims, all of whom were in his direct line of fire is sufficient to support the inference that he specifically intended to kill each of them.  (People v. Smith, supra, 37 Cal.4th at p. 743.)   This evidence is also sufficient to support the finding that appellant intended to kill not only Moreno, but everyone else near him.

DISPOSITION

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Steven E. Hintz, Judge

Superior Court County of Ventura

Carol K. Lysaght, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Cory J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

FOOTNOTES

FN4. Moreno testified at trial under a grant of use immunity for charges that were pending against him in an unrelated criminal matter..  FN4. Moreno testified at trial under a grant of use immunity for charges that were pending against him in an unrelated criminal matter.

FN5. Medina was issued on June 22, 2009, the day appellant mailed his reply brief.   We subsequently invited the parties to submit supplemental briefs addressing the case..  FN5. Medina was issued on June 22, 2009, the day appellant mailed his reply brief.   We subsequently invited the parties to submit supplemental briefs addressing the case.

FN6. People v. Gonzales (2001) 87 Cal.App.4th 1 [affirming murder conviction where shooting was natural and probable consequence of gang-related fistfight defendant aided and abetted];  People v. Montes (1999) 74 Cal.App.4th 1050, 1056 [shooting of rival gang member was natural and probable consequence of gang fight in which defendant wielded a chain];  People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 [fatal shooting of victim natural and probable consequence of gang confrontation in which defendant punched victim];  People v. Godinez (1992) 2 Cal.App.4th 492, 499-500 [stabbing of rival gang member was natural and probable consequence of fistfight];  People v. Montano (1979) 96 Cal.App.3d 221, 226 [shooting of victim by fellow gang members was natural and probable consequence of battery defendant aided and encouraged]..  FN6. People v. Gonzales (2001) 87 Cal.App.4th 1 [affirming murder conviction where shooting was natural and probable consequence of gang-related fistfight defendant aided and abetted];  People v. Montes (1999) 74 Cal.App.4th 1050, 1056 [shooting of rival gang member was natural and probable consequence of gang fight in which defendant wielded a chain];  People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 [fatal shooting of victim natural and probable consequence of gang confrontation in which defendant punched victim];  People v. Godinez (1992) 2 Cal.App.4th 492, 499-500 [stabbing of rival gang member was natural and probable consequence of fistfight];  People v. Montano (1979) 96 Cal.App.3d 221, 226 [shooting of victim by fellow gang members was natural and probable consequence of battery defendant aided and encouraged].

FN7. The People offer as further corroboration Velasquez's testimony that he had been “hit up” as he was leaving the party that night by a man wearing a glove who had a gun.   They contend this corroborates Ayungua's testimony that appellant was wearing a glove, had a gun, and told him he had shown the gun to someone as he approached the party.   As appellant correctly notes, this evidence cannot be considered because it relies on Ayungua's testimony to connect appellant to the crime.  (People v. Bunyard (1988) 45 Cal.3d 1189, 1206.).  FN7. The People offer as further corroboration Velasquez's testimony that he had been “hit up” as he was leaving the party that night by a man wearing a glove who had a gun.   They contend this corroborates Ayungua's testimony that appellant was wearing a glove, had a gun, and told him he had shown the gun to someone as he approached the party.   As appellant correctly notes, this evidence cannot be considered because it relies on Ayungua's testimony to connect appellant to the crime.  (People v. Bunyard (1988) 45 Cal.3d 1189, 1206.)

FN8. Appellant also notes there was no evidence to corroborate Ayungua's testimony linking appellant to the Angela Street shooting.   No such corroboration would have been required, however, because appellant was not charged with committing that crime..  FN8. Appellant also notes there was no evidence to corroborate Ayungua's testimony linking appellant to the Angela Street shooting.   No such corroboration would have been required, however, because appellant was not charged with committing that crime.

FN9. To the extent appellant claims CALCRIM Nos. 301 and 376 should have been modified, the claim is forfeited because it was not raised below.  (People v. Campos (2007) 156 Cal.App.4th 1228, 1236.).  FN9. To the extent appellant claims CALCRIM Nos. 301 and 376 should have been modified, the claim is forfeited because it was not raised below.  (People v. Campos (2007) 156 Cal.App.4th 1228, 1236.)

FN10. Subdivision (b)(4) of section 186.22 provides in pertinent part:  “Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of ․ any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as ․ [¶] ․ [¶] ․ [i]mprisonment in the state prison for 15 years, if the felony is ․ a felony violation of Section 246․”.  FN10. Subdivision (b)(4) of section 186.22 provides in pertinent part:  “Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of ․ any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as ․ [¶] ․ [¶] ․ [i]mprisonment in the state prison for 15 years, if the felony is ․ a felony violation of Section 246․”

FN11. The People also contend the court had no discretion to impose a consecutive sentence on count 5 because section 186.22, subdivision (b)(1) provides that the term imposed pursuant to that section must be “in addition and consecutive to the punishment proscribed for the felony․”  As appellant correctly notes in his reply brief, he was sentenced under subdivision (b)(4) of section 186.22, which is expressly exempted from the requirements of subdivision (b)(1)..  FN11. The People also contend the court had no discretion to impose a consecutive sentence on count 5 because section 186.22, subdivision (b)(1) provides that the term imposed pursuant to that section must be “in addition and consecutive to the punishment proscribed for the felony․”  As appellant correctly notes in his reply brief, he was sentenced under subdivision (b)(4) of section 186.22, which is expressly exempted from the requirements of subdivision (b)(1).

FN12. Section 669 provides in pertinent part:  “When any person is convicted of two or more crimes ․, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he ․ is sentenced shall run concurrently or consecutively.   Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another, with any term imposed for applicable enhancements, or with another term of imprisonment for a felony conviction.”.  FN12. Section 669 provides in pertinent part:  “When any person is convicted of two or more crimes ․, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he ․ is sentenced shall run concurrently or consecutively.   Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another, with any term imposed for applicable enhancements, or with another term of imprisonment for a felony conviction.”

FN13. We reject the People's claim that remand is unnecessary because the record demonstrates the court would have imposed a consecutive sentence on count 5 even if it had been aware of its discretion to impose a concurrent term.  (See, e.g., People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13.)   The record actually supports the contrary conclusion.   The People also assert that remand is not required because it would have been an abuse of discretion for the court to impose a concurrent sentence on count 5. They do not, however, cite any authority for the proposition that a trial court's failure to exercise its sentencing discretion is subject to a harmless error standard of review.   The law appears to be to the contrary.  (See People v. Downey, supra, at p. 912.).  FN13. We reject the People's claim that remand is unnecessary because the record demonstrates the court would have imposed a consecutive sentence on count 5 even if it had been aware of its discretion to impose a concurrent term.  (See, e.g., People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13.)   The record actually supports the contrary conclusion.   The People also assert that remand is not required because it would have been an abuse of discretion for the court to impose a concurrent sentence on count 5. They do not, however, cite any authority for the proposition that a trial court's failure to exercise its sentencing discretion is subject to a harmless error standard of review.   The law appears to be to the contrary.  (See People v. Downey, supra, at p. 912.)

FN14. The jury was instructed as follows:  “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 murders charged in [c]ounts 2, 3 and 4 [victims Lopez, Robles and Assadolzadeh], the People must prove that the defendant not only intended to kill Daniel Moreno, who is the charged victim in [c]ount 1, but also either intended to kill the persons named in [c]ounts 2, 3 and 4, or intended to kill anyone within the kill zone of Daniel Moreno.  [¶] If you have a reasonable doubt whether the defendant intended to kill the three victims alleged in [c]ounts 2, 3, and 4 or intended to kill Daniel Moreno by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of the victims alleged in [c]ounts 2, 3, and 4.”.  FN14. The jury was instructed as follows:  “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 murders charged in [c]ounts 2, 3 and 4 [victims Lopez, Robles and Assadolzadeh], the People must prove that the defendant not only intended to kill Daniel Moreno, who is the charged victim in [c]ount 1, but also either intended to kill the persons named in [c]ounts 2, 3 and 4, or intended to kill anyone within the kill zone of Daniel Moreno.  [¶] If you have a reasonable doubt whether the defendant intended to kill the three victims alleged in [c]ounts 2, 3, and 4 or intended to kill Daniel Moreno by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of the victims alleged in [c]ounts 2, 3, and 4.”

FN15. At oral argument, we granted appellant's request to submit supplemental briefing on People v. Concha (2009) 47 Cal.4th 653, an opinion filed earlier the same day that addresses Bland.   Appellant subsequently filed a letter brief stating that the case is not relevant to the appeal, and the People responded in agreement.   Because appellant was not invited to submit supplemental briefing on any other issue, we disregard his attempt to supplement or reargue his claim that the court prejudicially erred in failing to instruct on accomplice testimony principles..  FN15. At oral argument, we granted appellant's request to submit supplemental briefing on People v. Concha (2009) 47 Cal.4th 653, an opinion filed earlier the same day that addresses Bland.   Appellant subsequently filed a letter brief stating that the case is not relevant to the appeal, and the People responded in agreement.   Because appellant was not invited to submit supplemental briefing on any other issue, we disregard his attempt to supplement or reargue his claim that the court prejudicially erred in failing to instruct on accomplice testimony principles.

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