APPEAL from judgments of the Superior Court of Los Angeles County, Kathleen Kennedy-Powell, Judge. Affirmed as previously modified. (Los Angeles County Super. Ct. No. BA287017).
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PUBLICATION
The California Supreme Court held in this case that a defendant who commits an attempted murder may also be liable for first degree murder when his accomplice is killed by the intended victim in the course of the attempted murder. (People v. Concha (2009) 47 Cal.4th 653.) But the court concluded that the trial court erred when it failed to instruct the jury that "for a defendant to be found guilty of first degree murder, he personally had to have acted willfully, deliberately and with premeditation when he committed the attempted murder." (Id. at pp. 666.)*fn1 The Supreme Court remanded the matter to this court to determine whether that instructional error prejudiced defendants and appellants Reyas Concha and Julio Hernandez with respect to their first degree murder convictions. We conclude that a rational jury would have found it clear beyond a reasonable doubt that each defendant personally premeditated and deliberated the attempted murder so that the instructional error was harmless. We therefore affirm the first degree murder convictions.
Jimmy Lee Harris owned the Cindy Lu Beauty Salon located at 4411 South Normandie Avenue, at the corner of Vernon Avenue. At approximately 11:40 p.m. on July 14, 2005, Harris returned to his place of business from dinner. He parked his car in the alley abutting the parking lot behind the business. As Harris opened the driver's door of his car and attempted to exit, two men approached him. When Harris stood up, one of the men was just inches from him, and the other was standing next to the open car door. Harris saw that they were male Hispanics with shaved heads.*fn3 Harris identified Hernandez as the man closest to him and Concha as the other man. Concha said "Give up the money, Holmes, [sic] or we're gonna kill you[,] and the smokes." He also said something to the effect of "46 Crips." When Harris replied that he did not have any "smokes," Concha repeated the demand for money and the threat to kill him if Harris did not acquiesce.
Harris realized he had "a problem with these guys because those two [Hernandez and Concha] [were] closest and there [were] two more [male Hispanics] maybe eight to ten feet from [him] . . . ." Harris's "main objective was to try to get out of there . . . ." Harris*fn4 grabbed Concha, pulled him into Hernandez, and attempted to flee, but he encountered the other two male Hispanics. All four male Hispanics attacked Harris in the alley. Harris "fought them off in the alley where they [were] doing a lot of hitting on [him]. And [he] got away from them, and . . . ran into . . . Normandie Avenue."
When Harris ran into Normandie, he thought perhaps his attackers would not follow him, but they did. He ran south down the middle of Normandie, and his attackers pursued him for over a quarter of a mile. Kevin Decoud was near the laundry room of his apartment building on Normandie, smoking a cigarette, when he heard someone cry for help. He went to the gate and saw Harris "zigzagging across [Normandie] . . . hollering for help, trying to get help on his cell phone while three Mexican guys chased him." Harris was running "pretty fast," but was tiring. One of the Hispanic men, whom Decoud identified as Hernandez, was ahead of the other two. The male Hispanics were spaced about five seconds apart. The second one appeared to be holding a brown beer bottle. Sometime later, Decoud observed Hernandez running back down Normandie in the opposite direction holding his side.
Harris ran up to a man and a woman walking south on Normandie and told them that his pursuers were trying to kill him, but that man and woman ran off in a different direction. He ran up to another man at about 48th Street, said the same thing to him, and asked him to call 911, but that man ran off as well.*fn5 Harris then went to a house on the south side of 48th Street and knocked on the door, but no one answered.
Harris's pursuers were now "closing in on [him] real good," so he ran from the porch and attempted to scale a five foot fence on the side of the house, but was too tired. His pursuers caught up to him, pulled him off the gate, and began stabbing him in the back. They were stabbing him for "some seconds when [he] thought about . . . that little pocket knife in [his] pocket." When he reached the knife, he "knew that . . . it was time to use it." He turned to face his attackers, and saw all "four" of the male Hispanics confronting him. Harris could not see what they were using to stab and hit him.*fn6 Harris, who felt he had no option, with his pocket knife "began to stab as many of [the male Hispanic assailants] as he could; . . . [he] was fighting for his life." The altercation "went on for awhile" and then Harris "saw an opening and . . . ran out of there . . . to another house," approximately three houses down 48th Street. As he ran from the side of the first house, he encountered Concha who said, "Holmes [sic] why did you stab me?" Harris "hit [Concha] up under the chin, [or] on the neck . . . ."
Harris ran to a second house, beat on the door, and eventually an African-American man and his girlfriend came out. Harris asked them to call 911 because "physically [he] was in bad shape, and mentally as well . . . . [He] just wanted to get some help from the police . . . ." He was "bleeding profusely all over." The man who answered the door had a gun in his hand and told Harris "to step off the porch." Harris told the couple at the second house, "four Mexican guys are trying to kill me."
The man and woman who answered the door at the second house were Dalvin Cooper and Taneica Talbert. Cooper observed that there was blood all over his porch. Harris kept repeating the same things, "Please call the police. They're trying to kill me. Please, please, sir, call the police. They're trying to kill me." Harris "had a very scared look on his face." Cooper observed that Harris had "[a] lot of cuts on his hands [and] arms. . . [and] a big cut like almost behind his ear. He was bleeding from the head area . . . [and had c]uts almost everywhere." Cooper did not see anyone else on the street, but Talbert looked down the street and saw two men standing by the stop sign. She also observed that Harris "[l]ooked scared for his life." Cooper called the police.
Once Cooper and Talbert answered the door, Harris did not see what became of his four assailants. Eventually, the police arrived at the scene, and Harris told them what had happened. The paramedics arrived and began to treat Harris's wounds. They transported him to California Hospital Medical Center.
Harris sustained an injury to his collar bone and suffered wounds to his left shoulder that required stitches, to his side and back, to his stomach, to his chest, to his upper right shoulder that required stitches, to his back that required stitches, to the right side of his neck, to his head behind his right ear, to his right temple that required stitches, to the left side of his head behind his left ear that required stitches, to his right arm, and to his finger. He received a total of about 60 stitches, and had residual injuries from blows to his head that caused him to be extremely light sensitive and that required him to return to the hospital for an overnight stay.
Harris identified Hernandez from a six-pack photographic line-up, but could not identify Concha from a photographic line-up. At the preliminary hearing and at trial, however, he identified both defendants as two of the men who confronted, threatened, and attacked him. Decoud also positively identified Hernandez as one of the three male Hispanics that chased Harris down Normandie and as the one he saw returning, holding his side.
On that same evening, Gabriel Estrada was employed as a security guard outside the emergency room of the California Hospital Medical Center. Paramedics came to Estrada and informed him that there was a man in the parking lot bleeding who needed help. Estrada contacted nurses and doctors, and they ran out to the parking lot with a gurney. Estrada observed a male Hispanic lying on the ground (presumably Max Sanchez) and three other males standing over him. One of the three men standing over Sanchez said, "He need[s] help. He's bleeding." Estrada asked what happened, and the man replied, "He's just bleeding. He was stabbed real bad and needs . . . help." The man with whom Estrada spoke was a Hispanic male with no shirt and tattoos on his chest. That man (presumably Concha) informed Estrada that he "was stabbed too . . .", and asked Estrada whether he ...