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The People v. Jairo Soto et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT San Joaquin


April 6, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAIRO SOTO ET AL., DEFENDANTS AND APPELLANTS.

Super. Ct. Nos. SF103743A, SF103743B

The opinion of the court was delivered by: NICHOLSONActing P.J.

P. v. Soto CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendants Jairo Soto and Juan Antonio Daniel Torres, Sureno gang members, went on a shooting spree in Stockton with a .22-caliber rifle. Their targets were young men they suspected of being Norteno gang members. One of the intended targets, Pablo Hernandez, was shot through the heart and died.

Torres was convicted of one count of first degree murder with special circumstances, seven counts of premeditated attempted murder, three counts of shooting a firearm from a motor vehicle, and one count of street terrorism. Soto was convicted of one count of first degree murder with special circumstances, four counts of premeditated attempted murder, two counts of shooting a firearm from a motor vehicle, one count of street terrorism, and one count of possession of a firearm by a felon. Various firearm and gang enhancements were also found to be true.

Torres, 14 years old at the time of the shootings, was sentenced to three consecutive life terms, plus two consecutive terms of 25 years to life, plus a consecutive determinate term of 70 years 8 months in prison. Soto, 19 years old at the time of the shootings, was sentenced to a term of life imprisonment without the possibility of parole, plus a consecutive term of 25 years to life, plus two consecutive life terms, plus a consecutive determinate term of 61 years 4 months in prison.

On appeal, they raise several claims of error, including the claim that the trial court improperly instructed their respective juries with CALCRIM No. 600 on the "kill zone" theory of attempted murder when each of the shootings involved only a single shot. As we shall explain, we agree that the juries in this case were incorrectly instructed on the "kill zone" theory, such that they could have convicted defendants of the attempted murders of alleged secondary victims without finding that they harbored the concurrent intent to kill these victims. Accordingly, we must reverse four of Torres's attempted murder convictions and two of Soto's attempted murder convictions. We also reverse one of Torres's attempted murder convictions because it is not supported by substantial evidence. Several sentencing errors must also be corrected. The judgments are otherwise affirmed.

FACTS

Defendants Soto and Torres, and Torres's brother Daniel, drove through Stockton with a .22-caliber rifle and fired three separate shots at two groups of young men they believed to be Norteno gang members. On a separate occasion, Torres and Daniel drove past another group of suspected Nortenos and fired one shot at this group. Torres was 14 years old at the time of the shootings and a member of the "Vickystown Surenos." Soto was 19 years old at the time of the shootings and a member of a Sureno gang from Los Angeles called the "Cyclone Buddies." As Soto explained to detectives following the shootings, opening fire on Nortenos is simply "what a Sureno does."

South Lincoln Street Shooting (Counts 11 through 14)

In February 2007, Matthew Mejia, his brother Eric Mejia, and their friend Eddie Rivera were eating ice cream in front of the Mejia house on South Lincoln Street, waiting for the local high school to get out so they could flirt with the girls who walked past the house. Rivera was wearing a red hooded sweatshirt and associated with Nortenos. The color red is prominently worn by Norteno gang members. As the young men enjoyed their ice cream, Matthew saw a green Nissan Pathfinder drive past the house; Torres was driving and his brother Daniel was in the front passenger seat. As the vehicle passed the house, Torres and Daniel gave Rivera and the Mejia brothers "a mean mug," which gave Matthew "a bad feeling they were going to turn back around and do something." Matthew warned Eric and Rivera of the perceived danger and the three began to walk back to the house.

Matthew's instincts were correct. The Pathfinder turned around and stopped in front of the house just as Matthew and Rivera reached the front door. Eric was roughly five or six feet behind Matthew and Rivera and, seeing the driver of the Pathfinder pull out a rifle, hid behind one of the posts supporting the front porch. Torres yelled, "What are you guys looking at?" He then fired one shot at the young men. The bullet hit Matthew between the shoulder blades as he was trying to follow Rivera into the house, injuring his spinal cord and resulting in paralysis.

With respect to this shooting, Torres was convicted of three counts of premeditated attempted murder (counts 11 through 13) and one count of shooting a firearm from a motor vehicle (count 14).

South Sierra Nevada Street Shooting (Counts 8 through 10)

In March 2007, Soto, Torres and Daniel drove past Donasiano Ortega's house on South Sierra Nevada Street in the same green Pathfinder involved in the previous shooting. Torres drove, while Soto occupied the front passenger seat, and Daniel sat in the back.

Ortega was on the driveway in front of his house talking to his friend Neto when the Pathfinder approached from the north. As the vehicle passed Ortega and Neto, Soto leaned out of the passenger window pointing a rifle and fired one shot at the men. Fortunately, no one was hit by the bullet. Both Ortega and Neto had long hair at the time of the shooting, which was consistent with the hair style worn by Nortenos, and Ortega confirmed that Neto was a Norteno.

With respect to this shooting, both Torres and Soto were convicted of one count of premeditated attempted murder (count 8) and one count of shooting a firearm from a motor vehicle (count 9). Soto was also convicted of possession of a firearm by a felon (count 10).

South Airport Way Shootings (Counts 1 through 4, 6 and 7)

After the shooting on South Sierra Nevada Street, the threesome continued on their search for Nortenos. As the Pathfinder approached the Highway 4 overpass on South Airport Way, they came across Pablo Hernandez and Pablo Ibarra. Hernandez was wearing a red belt, had a red bandana hanging from his back pocket, and associated with Norteno gang members. Ibarra was not wearing any red clothing, but was once a member of a Norteno gang called the "Loc'd Out Ene's" and had Norteno related tattoos.

Hernandez and Ibarra were walking north on South Airport Way, on the left side of the street, when the Pathfinder approached them from the north. The vehicle stopped just past the men, and one of the occupants yelled, "Let's get these." Daniel, the rear passenger, then passed the rifle to Soto in the front passenger's seat, and Soto fired a shot at Hernandez and Ibarra. Soto missed. When the shot was fired, Ibarra was standing closest to the street; Hernandez was standing to the left of Ibarra and slightly ahead of him, just out of arm's reach.

The Pathfinder drove off, continuing south, and made the first available right turn. Hernandez and Ibarra continued walking north. When they reached the intersection of South Airport Way and East Washington Street, just past the Highway 4 overpass, Hernandez and Ibarra again saw the Pathfinder. The vehicle again approached from the north, but this time made a right turn onto East Washington Street and pulled over so that the driver's side window was facing Hernandez and Ibarra's position on the southwest corner of the intersection. Torres fired the rifle from the driver's side window and then drove off. When this shot was fired, Hernandez was to the left and roughly five feet ahead of Ibarra. The bullet pierced Hernandez's left lung and heart, grazing the right lung. Hernandez and Ibarra were able to continue through the intersection before Hernandez collapsed on the other side of the street. Hernandez died a short time later.

With respect to these shootings, Soto and Torres were convicted of one count of premeditated first degree murder with special circumstances (count 1), three counts of premeditated attempted murder (counts 2 through 4), one count of shooting a firearm from a motor vehicle (count 6), and one count of street terrorism (count 7).

I DISCUSSION

Both Soto and Torres assert that the trial court prejudicially erred by instructing their respective juries with CALCRIM No. 600 regarding the "kill zone" theory of attempted murder. While neither defendant objected to this instruction at trial, this claim of error is "reviewable on appeal to the extent it affects [their] substantial rights. [Citation.]" (People v. Slaughter (2002) 27 Cal.4th 1187, 1199 (Slaughter); People v. Prieto (2003) 30 Cal.4th 226, 247.) Accordingly, "to the extent this claim of instructional error is meritorious and contributed to [their convictions], we will review it." (People v. Gamache (2010) 48 Cal.4th 347, 375, fn. 13.)

We need not decide whether the "kill zone" theory applies in a single-shot case because, even if it does, both juries were incorrectly instructed on the theory. Because it is reasonably probable that this error contributed to Torres's convictions for the attempted murders of Ibarra (counts 2 and 4), Eric (count 12), and Rivera (count 13), and Soto's convictions for the attempted murders of Ibarra (counts 2 and 4), we reverse these convictions.

A Torres was convicted of three counts of attempted murder based on the single shot fired at Rivera and the Mejia brothers on South Lincoln Street (counts 11 through 13). Soto and Torres were also convicted of three counts of attempted murder based on the two separate shots fired at Hernandez and Ibarra on South Airport Way (counts 2 through 4). The People relied on the so-called "kill zone" theory of concurrent intent in support of these convictions.

The mental state required for attempted murder differs from that required for murder. Murder requires malice, express or implied. Express malice, i.e., intent to kill, requires a showing that the defendant either desired the death of the victim, or knew to a substantial degree of certainty that death would occur. (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) Implied malice simply requires a showing that the defendant consciously disregarded human life. (People v. Lasko (2000) 23 Cal.4th 101, 107.) Attempted murder requires express malice; a conscious disregard for life will not suffice to support a conviction for attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 327-328 (Bland).) However, "a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind." (People v. Stone (2009) 46 Cal.4th 131, 140 (Stone).) And as our Supreme Court clarified in People v. Perez (2010) 50 Cal.4th 222 (Perez), a person who "indiscriminately fires a single shot at a group of persons with specific intent to kill someone, but without targeting any particular individual or individuals, . . . is guilty of a single count of attempted murder. [Citation.]" (Id. at p. 225, original italics; Stone, supra, 46 Cal.4th at p. 141.)

Another difference between murder and attempted murder involves the doctrine of transferred intent. "Someone who in truth does not intend to kill a person is not guilty of that person's attempted murder even if the crime would have been murder -- due to transferred intent -- if the person were killed. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant's mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others." (Bland, supra, 28 Cal.4th at p. 328; Perez, supra, 50 Cal.4th at p. 232; Stone, supra, 46 Cal.4th at p. 141 ["'guilt of attempted murder must be judged separately as to each alleged victim'"].)

The "kill zone" theory of concurrent intent applies to the situation in which the defendant, with the intent to kill a specific target, employs a means of attack designed to kill everyone in the vicinity of the target in order to ensure the death of the target. In such a situation, the defendant creates a "kill zone" around the target, and the jury may reasonably infer that defendant possesses the concurrent intent to kill everyone within the kill zone. (Bland, supra, 28 Cal.4th at pp. 326-327, 329-330.) "'The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim.'" (Id. at pp. 329-330, quoting with approval Ford v. State (1993) 625 A.2d 984, 1000-1001; see also People v. Vang (2001) 87 Cal.App.4th 554, 563-564.)

In accordance with these principles, CALCRIM No. 600 provides in relevant part: "A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone.' In order to convict the defendant of the attempted murder of [alleged victim charged in attempted murder count[s] on concurrent-intent theory], the People must prove that the defendant not only intended to kill [alleged primary target] but also either intended to kill [alleged victim charged in attempted murder count[s] on concurrent-intent theory], or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill [alleged victim charged in attempted murder count[s] on concurrent-intent theory] or intended to kill [alleged primary target] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of [alleged victim charged in attempted murder count[s] on concurrent-intent theory]."

B Both Torres and Soto assert that the trial court incorrectly instructed their juries on the "kill zone" theory. Specifically, Torres contends that the trial court should have "clearly designate[d] the primary target in each incident and the secondary victims," rather than "combin[ing] all the incidents, counts and named victims in one hodgepodge of ambiguity." Similarly, Soto contends that "the instruction actually given by the court was clumsily worded and difficult to understand." We agree.

The Soto jury was instructed on the kill zone theory as follows: "In order to convict [Soto] of the attempted murder of Pablo Ibarra in Counts 2 and 4, [and] Pablo Hernandez in Count 3, the People must prove that [Soto] not only intended to kill Pablo Hernandez but also either intended to kill Pablo Hernandez or intended to kill anyone within the kill zone. [¶] If you have a reasonable doubt whether [Soto] intended to kill Pablo Hernandez or intended to kill Pablo Hernandez or intended to kill anyone in the kill zone, then you must find [Soto] not guilty of the attempted murder of Pablo Ibarra." (Italics added.)

As we have already explained, CALCRIM No. 600 provides in pertinent part: "In order to convict the defendant of the attempted murder of [the alleged secondary victim], the People must prove that the defendant not only intended to kill [the alleged primary target] but also either intended to kill [the alleged secondary victim], or intended to kill everyone within the kill zone."

Here, Soto's jury was instructed that in order to convict Soto of attempting to murder Ibarra, the jury had to find beyond a reasonable doubt that he "not only intended to kill Pablo Hernandez but also either intended to kill Pablo Hernandez or intended to kill anyone within the kill zone." This is incorrect because it replaces the alleged secondary victim (Ibarra) with the alleged primary target (Hernandez) and tells the jury that they can convict Soto of attempting to murder Ibarra if the People prove that he either intended to kill Hernandez or intended to kill everyone in the kill zone. Accordingly, we do not know whether the jury actually found that Soto intended to kill everyone in the kill zones arguably created by the separate shots or whether the jury convicted Soto of two counts of attempting to murder Ibarra solely because they found that he harbored the intent to kill Hernandez.

We conclude that it is reasonably probable the jury would have reached a result more favorable to Soto had it been properly instructed that he not only had to intend to kill Hernandez, but also had to either intend to kill Ibarra or intend to kill everyone in the kill zone. (See, e.g., Slaughter, supra, 27 Cal.4th at p. 1201.) We must therefore reverse Soto's convictions for attempting to murder Ibarra (counts 2 and 4). However, with respect to the attempted murder of Hernandez (count 3), we find the instructional error to have been harmless. This is because the instruction clearly required the jury to find beyond a reasonable doubt that Soto either intended to kill Hernandez or intended to kill everyone in the kill zone, which necessarily included Hernandez.

The Torres jury was also erroneously instructed, except that their instruction was more confusing because the trial court combined all three shootings into one instruction and combined alleged primary targets (Hernandez and Matthew) and alleged secondary victims (Ibarra, Rivera, and Eric): "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 [Torres] of the attempted murder of Pablo Ibarra in Count[s] 2 and 4, Pablo Hernandez in Count 3, Matthew Mejia in Count 11, Eric Mejia in Count 12, and Edward Rivera in Count 13, the People must prove that [Torres] not only intended to kill Pablo Hernandez and Matthew Mejia but also either intended to kill them or intended to kill anyone within the kill zone. [¶] If you have a reasonable doubt whether the defendant intended to kill Pablo Hernandez and Matthew Mejia or intended to kill them or anyone in the kill zone, then you must find [Torres] not guilty of the attempted murder of Pablo Ibarra, Eric Mejia, [and] Edward Rivera." (Italics added.)

As given, this instruction informs the jury that in order to convict Torres of the attempted murders of Hernandez, Ibarra, Rivera, Matthew, and Eric, the jury had to find beyond a reasonable doubt that he "not only intended to kill Pablo Hernandez and Matthew Mejia but also either intended to kill them or intended to kill anyone within the kill zone." This is incorrect. As Torres points out, the jury likely understood "them" to refer to Hernandez and Matthew because they are the individuals appearing immediately before the pronoun. The People concede in the respondent's brief that "them" refers to Hernandez and Matthew. Accordingly, the jury likely understood the instruction to permit them to convict Torres of the attempted murders of everyone (alleged primary targets and alleged secondary victims) as long as they found beyond a reasonable doubt that he not only intended to kill Hernandez and Matthew (the alleged primary targets) but also either intended to kill Hernandez and Matthew (the alleged primary targets) or intended to kill everyone within the kill zone.

Because we do not know whether the jury actually found that Torres intended to kill everyone in the kill zones arguably created by these separate shots or whether the jury convicted Torres of attempting to murder the alleged secondary victims solely because they found that he harbored the intent to kill Hernandez and Matthew, we find a reasonable probability that the jury would have reached a result more favorable to Torres had it been properly instructed on the theory. (See, e.g., Slaughter, supra, 27 Cal.4th at p. 1201.) Accordingly, we must reverse Torres's convictions for the attempted murders of Ibarra (counts 2 and 4), Eric (count 12), and Rivera (count 13). However, with respect to the attempted murder of Hernandez (count 3), and the attempted murder of Matthew (count 11), we find the instructional error to have been harmless. This is because the instruction clearly required the jury to find beyond a reasonable doubt that Torres either intended to kill Hernandez and Matthew or intended to kill everyone in the respective kill zones, which necessarily included Hernandez and Matthew.*fn1

C Torres also challenges the sufficiency of the evidence to support his convictions for the attempted murders of Ibarra (counts 2 and 4), Eric (count 12), and Rivera (count 13). As Torres frames the argument: "In the shooting incident on February 7, 2007, and the two incidents involving Ibarra and Hernandez on March 3, 2007, there was no evidence that the shooter in each incident fired a single shot with the intent to hit more than one person. Only one shot was fired from a car at a distance at moving people, and unless the shooter was an expert marksman or had magic bullets, he could not have intended to kill everyone present." At oral argument, Soto joined in this argument.

"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains 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.' [Citation.] . . . [A] reviewing court 'presumes in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence.' [Citation.] 'This standard applies whether direct or circumstantial evidence is involved.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 701.)

In Perez, defendant "fired a single bullet at a distance of 60 feet, from a car going 10 to 15 miles per hour, at a group of seven peace officers and a civilian who were standing less than 15 feet apart from one another . . . ." (Perez, supra, 50 Cal.4th at p. 224.) He was convicted of seven counts of premeditated attempted murder of a peace officer and one count of premeditated attempted murder. (Ibid.) Our Supreme Court held that these facts supported only a single count of premeditated attempted murder of a peace officer. (Id. at p. 234.) There, as here, the People argued that the "kill zone" theory of concurrent intent supported the multiple counts of attempted murder. The court disagreed. "The facts of this case do not establish that defendant created a 'kill zone' by firing a single shot from a moving car at a distance of 60 feet at a group of eight individuals, notwithstanding that they were all standing in relatively close proximity to one another. Bland's kill zone theory of multiple attempted murder is necessarily defined by the nature and scope of the attack. The firing of a single bullet under these circumstances is not the equivalent of using an explosive device with intent to kill everyone in the area of the blast, or spraying a crowd with automatic weapon fire, a means likewise calculated to kill everyone fired upon. The indiscriminate firing of a single shot at a group of persons, without more, does not amount to an attempted murder of everyone in the group." (Id. at p. 232, italics added.)

The court then distinguished Smith, thereby indicating the "more" that would support multiple attempted murder convictions based on a single shot. (Perez, supra, 50 Cal.4th at pp. 232-233.) In Smith, the defendant was convicted of two counts of attempted murder based on a single shot fired into the back of a slowly moving vehicle driven by his ex-girlfriend Karen. Defendant was aware that Karen's infant son was seated in a car seat directly behind her. The bullet narrowly missed both Karen and her son. (Smith, supra, 37 Cal.4th at pp. 742-743.) There, the court explained that "in order for the jury to convict defendant of the attempted murder of the baby, it had to find, beyond a reasonable doubt, that he acted with intent to kill that victim," and that "evidence that defendant purposefully discharged a lethal firearm at the victims, both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire, can support an inference that he acted with intent to kill both." (Id. at p. 743; see also People v. Chinchilla (1997) 52 Cal.App.4th 683, 691 ["[w]here a defendant fires [a single shot] at two officers, one of whom is crouched in front of the other, the defendant endangers the lives of both officers and a reasonable jury could infer from this that the defendant intended to kill both"].)

Similarly, in People v. Leon (2010) 181 Cal.App.4th 452 (Leon), the defendant fired a single shot into the back of a vehicle containing three people. The bullet entered the right taillight, traveled through the right backseat, and hit Blanco, the backseat passenger, piercing his left lung and killing him. (Id. at pp. 457-458.) Based on Smith and Chinchilla, the Court of Appeal found sufficient evidence to convict the defendant of the murder of Blanco and the attempted murder of Hernandez, the passenger seated in the front seat directly in front of Blanco and in the defendant's line of fire. (Leon, supra, at pp. 464-465.) However, the court found insufficient evidence to support the defendant's conviction for attempted murder of the driver, Rodriguez. The court explained that the defendant "fired a single shot from behind the [car] into the right side of the passenger compartment, endangering the passengers seated in the right backseat (Blanco) and the front passenger seat (Hernandez). Rodriguez, who was in the driver's seat on the left side of the [car], was out of the line of fire. It was physically impossible for the single bullet to strike Rodriguez as well as Blanco and Hernandez." (Id. at p. 465.)

While the People relied on the kill zone theory at trial, the court did not decide whether the single shot fired into the car created a "kill zone" within the meaning of Bland. Instead, the court simply concluded that "[i]f it did create a 'kill zone,' that zone encompassed only the persons in the single bullet's line of fire; Blanco and Hernandez. A reasonable trier of fact could not find beyond a reasonable doubt that [the defendant's] firing of a single bullet constituted 'lethal force designed and intended to kill everyone' in the [car]." (Leon, supra, 181 Cal.App.4th at p. 466, quoting Smith, supra, 37 Cal.4th at p. 746.)

In this case, Torres was convicted of three counts of attempted murder based on the single shot fired at Rivera and the Mejia brothers on South Lincoln Street. When the shot was fired, Matthew and Rivera were at the front door, and Matthew was trying to follow Rivera into the house. As Matthew explained at trial: "As soon as I open my door, my friend [Rivera] comes in front of me." Then Rivera yelled, "[T]hey got a gun," but it was "already too late." The bullet hit Matthew in the back. From this evidence, the jury could reasonably have concluded that Rivera was in front of Matthew when the shot was fired and directly in the line of fire within the meaning of Smith. The jury could also have inferred that Torres saw both Matthew and Rivera trying to escape into the house through the front door, and fired at both men, intending to kill Rivera as well as Matthew. (See Leon, supra, 181 Cal.App.4th at p. 465; Smith, supra, 37 Cal.4th at p.743.)

However, Eric was roughly five or six feet behind Matthew and Rivera, and seeing Torres pull out the rifle, hid behind one of the posts supporting the front porch. Much like the driver of the vehicle in Leon, Eric was outside of the line of fire, and "[a] reasonable trier of fact could not find beyond a reasonable doubt that [Torres's] firing of a single bullet constituted 'lethal force designed and intended to kill everyone' [on the porch]." (Leon, supra, 181 Cal.App.4th at p. 466, quoting Smith, supra, 37 Cal.4th at p. 746.)

With respect to the South Airport Way shootings, there is substantial evidence from which the jury could reasonably have concluded that both Hernandez and Ibarra were in the line of fire, and that Torres harbored the concurrent intent to kill both men. When the first shot was fired, Hernandez and Ibarra were walking north on South Airport Way, on the left side of the street. The Pathfinder approached them from the north and stopped just past the men. Soto fired a shot at Hernandez and Ibarra from the front passenger seat. Ibarra was standing closest to the street; Hernandez was standing to the left of Ibarra and slightly ahead of him. From this evidence, the jury could reasonably have concluded that Ibarra was standing between Hernandez and the Pathfinder, and that both men were in the line of fire. The jury could also have reasonably inferred, both from the position of the Pathfinder in relation to Hernandez and Ibarra and from the fact that someone in the vehicle yelled, "Let's get these" immediately before the shot was fired, that Soto fired at both men, intending to kill Ibarra as well as Hernandez. (See Leon, supra, 181 Cal.App.4th at p. 465; Smith, supra, 37 Cal.4th at p. 743.)

When the second shot was fired, Hernandez and Ibarra were at the intersection of South Airport Way and East Washington Street. The Pathfinder again approached from the north, but this time made a right turn onto East Washington Street and pulled over so that the driver's side window was facing Hernandez and Ibarra's position on the southwest corner of the intersection. Torres fired the rifle from the driver's side window. Hernandez was to the left and roughly five feet ahead of Ibarra. From this evidence, the jury could reasonably have concluded that Hernandez was standing between Ibarra and the Pathfinder, and that both men were in the line of fire. Again, from the position of the Pathfinder in relation to Hernandez and Ibarra, the jury could reasonably have inferred that Torres fired at both men, intending to kill Ibarra as well as Hernandez. (See Leon, supra, 181 Cal.App.4th at p. 465; Smith, supra, 37 Cal.4th at p. 743.)

D In sum, we reverse Soto's convictions for the attempted murders of Ibarra (counts 2 and 4) for instructional error. We also reverse Torres's convictions for the attempted murders of Ibarra (counts 2 and 4), Eric (count 12), and Rivera (count 13) for instructional error. We further conclude that the attempted murder convictions as to Ibarra (counts 2 and 4) and Rivera (count 13) are supported by substantial evidence. However, the attempted murder conviction as to Eric (count 12) must also be reversed because the evidence is insufficient to demonstrate a concurrent intent to kill this alleged victim.

Additionally, in the event Soto and Torres are tried again for the attempted murders for which there was substantial evidence, we take this opportunity to point out that the People would be wise to abandon the kill zone theory on retrial. As we have already explained, the kill zone theory is simply a reasonable inference the jury may draw from the manner of attack and the position of the alleged victims, i.e., that defendant not only intended to kill the intended target, but also harbored the concurrent intent to kill everyone in the kill zone created by the attack. Where defendant places a bomb on a commercial airliner, the kill zone created will likely encompass the entire airplane. Where defendant attacks a street corner with automatic weapon fire, the kill zone created will likely encompass the entire corner. Where defendant fires a flurry of bullets into a vehicle, the kill zone created will likely encompass the entire vehicle. This is because the "kill zone" is merely a shorthand way of saying the area in which the jury may reasonably infer the concurrent intent to kill everyone present.

Thus, even if a single shot can be said to create a kill zone, because the jury may not reasonably infer that a defendant who fires a single bullet harbors the concurrent intent to kill those individuals outside the line of fire (Leon, supra, 181 Cal.App.4th at p. 466), those outside the line of fire are outside the kill zone that is arguably created by the single shot. Accordingly, in a single-shot case, the People would greatly simplify the issue for the jury by simply arguing that the alleged victims were in the line of fire of the single bullet. From this, the jury may reasonably infer that the defendant intended to kill both alleged victims. (Smith, supra, 37 Cal.4th at p. 743.)*fn2

II We now turn to Soto's sole remaining claim of error, that all of his convictions must be reversed because his statements to police were "obtained by coercion, and cannot be found to have been voluntarily made." He is mistaken.

A At 10:45 p.m., two days after the shootings on South Sierra Nevada Street and South Airport Way, Soto was arrested and taken to the police station for questioning. The interview began at roughly 1:00 a.m. the following morning. Because Soto was not proficient in the English language, the interview was conducted in Spanish, and was largely a one-on-one conversation with Detective Eduardo Rodriguez.

After being advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], Soto acknowledged that he was a member of a Sureno gang from Los Angeles called the "Cyclone Buddies" or "SGB." Detective Rodriguez then advised Soto: "I don't want to start with lies. I'm Mexican. I want to help you. I don't want to screw you. Okay. But . . . you need to tell the truth." Soto then admitted to being in the vehicle with Torres and Daniel during the shootings, but repeatedly denied firing any of the shots, claiming instead that he was seated in the back, that he simply wanted a ride home, and that Torres fired all three shots. Several times during nearly three hours of questioning, Detective Rodriguez told Soto that he was going to "get screwed" if he lied about what happened. When questioning ceased at 3:46 a.m., Soto was given a Coke and left alone in the interview room.

Although Soto was not provided a blanket or pillow, he managed to sleep for several hours on two chairs he put together to create a makeshift bed. At 9:05 a.m., Soto was taken to a different interview room. At 2:15 p.m., detectives provided Soto with food. At 2:58 p.m., questioning resumed.

Detective Rodriguez began by reminding Soto that the "most important thing of all" was to "tell the truth." He then told Soto that he had talked to several witnesses, and said: "So, I'm going to give you another chance. Because, what did I tell you? You're, you're just going to screw yourself if you tell me one lie." The detective continued: "I don't know what happened last night, but we started off with lies. Okay? But this is another chance. Okay. But this is another chance. When I talked to your mom, I promised her that I was going to give you another chance." Soto then admitted to having fired one shot in the direction of Ortega and Neto on South Sierra Nevada Street. As Soto explained, he was in the front passenger seat, Torres was driving, and Daniel passed Soto the rifle from his position in the back. Soto also admitted to having fired the first shot on South Airport Way, but denied aiming at either Hernandez or Ibarra. According to Soto, he "wasn't firing to hit them, just like to frighten them." Soto also explained that Torres fired the final shot that killed Hernandez, and then they "left really fast."

The trial court denied Soto's pretrial motion to suppress the confession. The trial court found that Soto was "properly advised pursuant to Miranda prior to any questioning," and that, under the totality of the circumstances, the practices and procedures used by detectives did not amount to "coercive activity."

As the court explained, while the interrogation room was not "the most commodious of rooms," Soto slept "most soundly and apparently most comfortably for a lengthy period of time," and the detectives "inquired of his needs" and "provided him with water, food and soda." The trial court also found that the break in the interrogation, during which detectives were investigating the case, "appears to have been reasonable and necessary under the totality of [the] circumstances," and that "the fact that [Soto] was admonished not to lie any further about the matter, [and] that a lie would place him in further jeopardy or trouble, certainly was a reasonable interrogation technique." Nor did the trial court consider the comment about "promis[ing] [Soto's] mother to give [him] one more chance" to be a "coercive activity under the totality of [the] circumstances." The trial court further found that certain untruthful statements made by detectives, i.e., that Soto's fingerprints were on the steering wheel of the vehicle and that the shootings were caught on traffic cameras, did not undermine the voluntariness of Soto's statement. The trial court concluded that Soto's "ability to reason, comprehend or resist" was not overcome by the detectives' interrogation techniques, and that Soto's statement was voluntarily given.

B We reject Soto's claim that his statements to police were involuntary.

"An involuntary confession may not be introduced into evidence at trial," and "[t]he prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made." (People v. Carrington (2009) 47 Cal.4th 145, 169 (Carrington); People v. McWhorter (2009) 47 Cal.4th 318, 346.) "In determining whether a confession was voluntary, '"[t]he question is whether defendant's choice to confess was not 'essentially free' because his [or her] will was overborne."' [Citation.] Whether the confession was voluntary depends upon the totality of the circumstances. [Citations.]" (Carrington, supra, 47 Cal.4th at p. 169; People v. Massie (1998) 19 Cal.4th 550, 576; Lynumn v. Illinois (1963) 372 U.S. 528, 534-535 [9 L.Ed.2d 922, 926].) "'On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review.'" (People v. Holloway (2004) 33 Cal.4th 96, 114 (Holloway).)

A confession is involuntary "if it is obtained by threats or promises of leniency, whether express or implied, however slight, or by the exertion of any improper influence. [Citations.]" (People v. Ramos (2004) 121 Cal.App.4th 1194, 1201.) "However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. . . . Thus, "[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, "if . . . the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. . . ."' [Citation.]" (Holloway, supra, 33 Cal.4th at p. 115; Carrington, supra, 47 Cal.4th at pp. 170-171.)

Soto claims that "the totality of the circumstances of the interrogation rendered both his 'voluntary' implied waiver of his Miranda rights, and his statements themselves, involuntary." He relies on "the fact that he was isolated and held incommunicado, without even a phone call, for the sixteen or seventeen hours between his arrest and when he finally confessed his involvement; the fact that the police officers repeatedly lied to him about witness statements and physical evidence in the case, in order to put pressure on him to confess; the fact that Detective Rodriguez pressured him by saying he had promised his mother he would give him one last chance to tell the truth; the fact that Detective Rodriguez repeatedly told him he was going to 'screw himself' if he told any lies; the fact that the officers did not administer a fresh Miranda warning at the beginning of the afternoon interrogation session, which was fourteen hours after the original Miranda warning; and all of the other facts and circumstances surrounding the interrogation." We are not persuaded.

First, detectives were not required to administer a fresh Miranda warning when the interrogation was resumed the next day. "After a valid Miranda waiver, readvisement prior to continued custodial interrogation is unnecessary 'so long as a proper warning has been given, and "the subsequent interrogation is 'reasonably contemporaneous' with the prior knowing and intelligent waiver." [Citations.]' [Citation.] The necessity for readvisement depends upon various circumstances, including the amount of time that has elapsed since the first waiver, changes in the identity of the interrogating officer and the location of the interrogation, any reminder of the prior advisement, the defendant's experience with the criminal justice system, and '[other] indicia that the defendant subjectively underst[ood] and waive[d] his rights.' [Citations.]" (People v. Williams (2010) 49 Cal.4th 405, 434-435 [readvisement was not required where the second interrogation occurred "approximately 40 hours later in the same location as the first, and was conducted by one of the previous interrogators"].)

Here, the detectives were not required to readvise Soto of his Miranda rights because he validly waived those rights during the first interrogation, and the second interrogation, having occurred only 14 hours after the initial advisement, was reasonably contemporaneous with the first. Importantly, like the first interrogation, the second was principally conducted by Detective Rodriguez, and while the location technically changed, Soto was merely moved to a different interrogation room in the same building. Moreover, like the defendant in Williams, Soto "had experience with the criminal justice system and evinced no reluctance to be interviewed." (People v. Williams, supra, 49 Cal.4th at p. 435.) Under these circumstances, the detectives were not required to remind Soto of his Miranda rights.

Second, viewing the totality of the circumstances, we agree with the trial court that Soto's statement was "the product of a rational intellect and a free will." (People v. Farnam (2002) 28 Cal.4th 107, 183.) Soto was advised of his Miranda rights and voluntarily waived those rights by talking to Detective Rodriguez. The first interrogation session lasted less than three hours, during which Soto "never indicated any desire to have an attorney, to be left alone, or to discontinue questioning." (People v. Farnam, supra, at p. 182.) Roughly an hour after Soto complained of being "sleepy," the interview was ended for the night, and Soto was given a Coke and the opportunity to sleep. While he was not given a blanket or pillow, Soto slept for several hours on two chairs he put together. He was given food the following afternoon, shortly before questioning resumed. At no point during this second interview did Soto complain about being tired or ask that the questioning cease. This second interview lasted roughly 30 minutes. Accordingly, while the interrogation extended over a period of roughly 15 hours, Soto was questioned for less than four of those hours.

At no point during either interview did the detectives threaten Soto or promise him leniency in exchange for a confession. Nor did Detective Rodriguez's statements that Soto was going to "screw himself" if he told any lies, and that Soto's mother was promised that he would be given one last chance to tell the truth, constitute anything more than permissible exhortations to tell the truth. (See, e.g., Carrington, supra, 47 Cal.4th at pp. 170-171; Holloway, supra, 33 Cal.4th at p. 115.)

And while detectives did falsely inform Soto that the shootings were caught on traffic cameras and that his fingerprints were on the steering wheel of the Pathfinder, we agree with the trial court that these statements did not render Soto's subsequent confession involuntary. "'Lies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession, but they are not per se sufficient to make it involuntary.' [Citations.] Where the deception is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted. [Citation.]" (People v. Farnam, supra, 28 Cal.4th at p. 182.) The deception employed by detectives in this case was unlikely to produce a false confession. (See People v. Thompson (1990) 50 Cal.3d 134, 166-167 [defendant's statement found admissible where he was falsely told that incriminating evidence had been found]; People v. Watkins (1970) 6 Cal.App.3d 119, 124-125 [defendant's statement found admissible where defendant was falsely told that his fingerprints had been found on the getaway car].)

The cases upon which Soto relies are entirely inapposite.

The defendant in Davis v. North Carolina (1966) 384 U.S. 737, 743-751 [16 L.Ed.2d 895, 899-904] was held incommunicado in the overnight lockup and repeatedly interrogated for 16 days until he "'finally broke down'" and confessed. The defendant in Ashcraft v. Tennessee (1944) 322 U.S. 143, 148-151 [88 L.Ed. 1192, 1196-1198] was questioned "'in relays'" for more than 36 continuous hours, from Saturday evening until Monday morning, with no break in the questioning except "a single five minutes' respite." The defendant in Watts v. Indiana (1949) 338 U.S. 49 [93 L.Ed. 1801] was questioned "by a relay of six to eight officers" for roughly three hours during the first night of interrogation, and for roughly nine hours a night during four of the five subsequent nights (id. at p. 52); "[h]e was kept for the first two days in solitary confinement in a cell aptly enough called 'the hole' in view of its physical conditions," and "[a]part from the five night sessions, the police intermittently interrogated [defendant] during the day and on three days drove him around town, hours at a time, with a view to eliciting identifications and other disclosures." (Id. at p. 53; see also Harris v. South Carolina (1949) 338 U.S. 68, 69-70 [93 L.Ed. 1815, 1816-1817] [relay questioning by at least five officers in a hot cubicle over the course of three days; during the second day, defendant was questioned for nearly 12 hours with only a one-hour break]; Leyra v. Denno (1954) 347 U.S. 556, 558-560 [98 L.Ed. 948, 951-952] [defendant was "subjected to almost constant police questioning" throughout the afternoon and evening of the first day, for roughly 14 hours on the second, for nearly 24 hours on the third, and confessed only after police employed the services of a psychiatrist who planted suggestions as to how defendant had committed the crime].)

Soto's interrogation stands in stark contrast to the interrogations condemned in the foregoing cases. Detectives did not use relay questioning as a tactic to wear Soto down; nor did they continuously interrogate him over the course of several days. Soto was questioned for less than three hours during the first night of questioning. He was then given a soda and an opportunity to sleep. He was given food the following afternoon. And the second round of questioning lasted roughly 30 minutes.

Based on the totality of the circumstances, we conclude that Soto's statements were voluntary and admissible at trial to prove he committed the charged offenses.

III We now turn to claims of error asserted by Torres alone. Torres challenges the sufficiency of the evidence to support the gang enhancements attached to counts 11 through 14, arguing that Soto's prior offense of unlawfully taking or driving a vehicle is not a predicate offense enumerated in Penal Code section 186.22, subdivision (e).*fn3 He is wrong.

Penal Code section 186.22, subdivision (b), increases punishment for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (Further section references are to the Penal Code unless otherwise specified.)*fn4 Subdivision (b)(1)(B) imposes a five-year enhancement when such a defendant commits a serious felony as defined in section 1192.7, subdivision (c). Subdivision (b)(1)(C) imposes a 10-year enhancement when such a defendant commits a violent felony as defined in section 667.5, subdivision (c). However, these enhancement provisions do not apply where the felony is "punishable by imprisonment in the state prison for life . . . ." (§ 186.22, subd. (b)(5).) Instead, subdivision (b)(5) imposes a minimum term of 15 years before the defendant may be considered for parole. (People v. Lopez (2005) 34 Cal.4th 1002, 1004 (Lopez).)

"To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran); § 186.22, subd. (f).)

"A 'pattern of criminal gang activity' is defined as gang members' individual or collective 'commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more' enumerated 'predicate offenses' during a statutorily defined time period. [Citations.] The predicate offenses must have been committed on separate occasions, or by two or more persons. [Citations.]" (Duran, supra, 97 Cal.App.4th at p. 1457; § 186.22, subd. (e); People v. Loeun (1997) 17 Cal.4th 1, 9-10; People v. Gardeley (1996) 14 Cal.4th 605, 617.)

Torres concedes that the charged crime may serve as a predicate offense (People v. Gardeley, supra, 14 Cal.4th at p. 625), and therefore his convictions for attempted murder and discharging a firearm from a motor vehicle associated with the South Lincoln Street shooting (counts 11 and 14), occurring on the same occasion, constitute one of the required "two or more" predicate offenses.*fn5 (§ 186.22, subd. (e)(3) & (6).)

For the second such offense, the People relied on Soto's prior conviction of the crime of unlawfully taking or driving a vehicle as defined in Vehicle Code section 10851. Torres disputes that this conviction constitutes a predicate offense. While acknowledging that one of the predicate offenses enumerated in section 186.22 is "[t]heft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code" (§ 186.22, subd. (e)(25)), Torres argues: "Although the certified records show a conviction of Vehicle Code section 10851, they do not show Soto's violation constituted a theft. The use of '[t]heft and' in subdivision (e)(25) of section 186.22 requires that Soto have committed a theft, and Vehicle Code section 10851, subdivision (a) may be violated without committing theft. Had the Legislature intended that any violation of Vehicle Code section 10851 would qualify as a predicate offense under section 186.22, subdivision (e)(25), it would not have used '[t]heft and,' but would have stated: 'Unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code.'" We are not persuaded.

Subdivision (e)(25) of section 186.22 was added to section 186.22 by the voters in 2000 as part of Proposition 21. In interpreting a voter initiative, "we apply the same principles that govern statutory construction" (People v. Rizo (2000) 22 Cal.4th 681, 685), and "our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure." (In re Littlefield (1993) 5 Cal.4th 122, 130; People v. Eribarne (2004) 124 Cal.App.4th 1463, 1467.) "'In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.' [Citation.] At the same time, 'we do not consider . . . statutory language in isolation.' [Citation.] Instead, we 'examine the entire substance of the statute in order to determine the scope and purpose of the provision, construing its words in context and harmonizing its various parts.' [Citation.] Moreover, we '"read every statute 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.'"'" (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043; San Leandro Teachers Assn. v. Governing Bd. of San Leandro Unified School Dist. (2009) 46 Cal.4th 822, 831.)

As already indicated, subdivision (e)(25) of section 186.22 makes the crime of "[t]heft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code" a predicate offense for purposes of the gang enhancement. (Italics added.) Vehicle Code section 10851 is titled "[t]heft and unlawful driving or taking of a vehicle" and defines a violation as occurring whenever a person "drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle . . . ." Thus, as defined in Vehicle Code section 10851, the crime titled "[t]heft and unlawful taking or driving of vehicle" does not require an actual theft of the vehicle, but can be committed by the mere unlawful driving of the vehicle with the intent to temporarily deprive the owner of possession.

If we were to adopt Torres's reading of section 186.22, subdivision (e)(25), and exclude from coverage all violations of Vehicle Code section 10851 that are not also thefts, we would have to read out of the provision the words "as defined in Section 10851 of the Vehicle Code." This we cannot do. (See, e.g., People v. Hinkel (2005) 125 Cal.App.4th 845, 852 ["courts 'give "significance to every word, phrase, sentence and part of an act"' [citation], and not construe statutory provisions 'so as to render them superfluous' [citation]"].)

Moreover, when the crime of "[t]heft and unlawful taking or driving of a vehicle, as defined in Section 10851 of the Vehicle Code" was added to the list of predicate offenses by the voters in 2000, grand theft and grand theft of a vehicle were already listed as predicate offenses under section 186.22, subdivision (e). (See former § 186.22, subds. (e)(9) & (10) [Stats. 1997, ch. 500, § 2, p. 3127].) Indeed, the voters simultaneously amended the grand theft predicate offense to remove the requirement that the value of the property taken exceed $10,000, and added the requirement that the theft be one defined in subdivisions (a) or (c) of section 487.*fn6 (See former § 186.22, subd. (e)(9) [Stats. 1997, ch. 500, § 2, as amended by Prop. 21, Primary Elec. (Mar. 7, 2000)]; Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 4, p. 120.) Accordingly, the voters understood that auto theft would be covered under subdivisions (e)(9) and (10). If the value of the stolen vehicle exceeded $950, or if the vehicle was taken from the person of the owner, the crime would be covered under subdivision (e)(9). (Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 4, p. 120; § 487, subd. (a).) If the value of the vehicle was $950 or less, the theft would be covered under subdivision (e)(10) because this subdivision simply requires "[g]rand theft of any . . . vehicle," and theft of an automobile, regardless of value, is grand theft under section 487, subdivision (d)(1). Thus, it would make little sense for the voters to have added violations of Vehicle Code section 10851 to the list of predicate offenses, but only if those violations were also thefts.

In sum, we find sufficient evidence of two or more predicate offenses enumerated in section 186.22, subdivision (e). As Torres does not otherwise challenge the sufficiency of the evidence to support the jury's finding that he committed the crimes associated with the South Lincoln Street shooting (counts 11 and 14) for the benefit of a criminal street gang, we must conclude that section 186.22, subdivision (b), applied to enhance Torres's sentence with respect to these crimes. However, as we explain below, the actual enhancements imposed by the trial court were erroneous. We will modify the judgment to correct these errors.

IV Torres further asserts that the trial court improperly imposed 10-year gang enhancements on each of his premeditated attempted murder convictions pursuant to section 186.22, subdivision (b)(1)(C), rather than a 15-year minimum parole period as required by subdivision (b)(5). The People concede the error. We accept the concession and will modify the judgment to strike the enhancements attached to counts 3, 8 and 11, and include a 15-year minimum parole period for each of these premeditated attempted murder convictions.

As we have already explained, section 186.22, subdivision (b), "establishes alternative methods for punishing felons whose crimes were committed for the benefit of a criminal street gang" (Lopez, supra, 34 Cal.4th at p. 1004), and the 10-year enhancement imposed by subdivision (b)(1)(C) does not apply where the felony is "punishable by imprisonment in the state prison for life . . . ." (§ 186.22, subd. (b)(5).) Because premeditated attempted murder is such a felony, we modify the judgment to strike the 10-year enhancements imposed under subdivision (b)(1)(C) on counts 3, 8 and 11, and further modify the judgment to impose a minimum term of 15 years before Torres may be considered for parole on each of these convictions.*fn7 (§ 186.22, subd. (b)(5); § 664, subd. (a) ["if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole"]; Lopez, supra, 34 Cal.4th at p. 1004.)

V Torres also claims the trial court erred in imposing 10-year gang enhancements on his convictions for discharging a firearm from a vehicle (counts 6, 9 and 14). The People again concede the error, but ask that we remand the matter on count 14 to enable the trial court to restructure its sentencing choices in light of People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez). We accept the concession with respect to counts 6 and 9. However, for the reasons that follow, we reject the concession with respect to count 14.

In counts 6, 9 and 14, Torres was convicted of discharging a firearm from a vehicle in violation of section 12034, subdivision (c), a serious felony under section 1192.7, subdivision (c)(36). In count 14, the jury also found that he personally and intentionally discharged a firearm causing great bodily injury in violation of section 12022.53, subdivision (d), which renders this crime a violent felony under section 667.5, subdivision (c)(22).

With respect to counts 6 and 9, the trial court should have imposed a five-year enhancement pursuant to section 186.22, subdivision (b)(1)(B), rather than the 10-year enhancement pursuant to section 186.22, subdivision (b)(1)(C), reserved for violent felonies. Accordingly, with respect to these counts, we will modify the judgment to strike the erroneously imposed 10-year enhancements and impose the appropriate five-year enhancements in their place.

However, as already indicated, count 14 was a violent felony because the jury found that Torres also violated section 12022.53. (§ 667.5, subd. (c)(22).) Thus, imposition of the 10-year enhancement contained in section 186.22, subdivision (b)(1)(C), was appropriate with respect to this count unless prohibited by section 1170.1, subdivision (f), which provides in pertinent part: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. . . ."

In Rodriguez, defendant fired several shots at three individuals who associated with a rival gang. He was convicted of three counts of assault with a firearm, and the jury also found that he personally used a firearm (§ 12022.5, subd. (a)) and committed a violent felony to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)). With respect to each offense, the trial court imposed and executed both the firearm enhancement and the gang enhancement. (Rodriguez, supra, 47 Cal.4th at pp. 504-505.) Our Supreme Court held that this violated section 1170.1, subdivision (f), because both the firearm enhancement and the gang enhancement punished defendant for using a firearm in the commission of a single offense. Obviously, the firearm enhancements imposed and executed under section 12022.5, subdivision (a), punished defendant for using a firearm during the commission of each of the three assaults. And, as the court explained, so did the gang enhancements: "Here, defendant became eligible for this 10-year punishment only because he 'use[d] a firearm which use [was] charged and proved as provided in . . . Section 12022.5.' (§ 667.5, subd. (c)(8).) Thus, defendant's firearm use resulted in additional punishment not only under section 12022.5's subdivision (a) (providing for additional punishment for personal use of a firearm) but also under section 186.22's subdivision (b)(1)(C), for committing a violent felony as defined in section 667.5, subdivision (c)(8) (by personal use of a firearm) to benefit a criminal street gang." (Rodriguez, supra, 47 Cal.4th at p. 509, original italics.) Accordingly, the imposition and execution of both enhancements violated section 1170.1, subdivision (f), and the court remanded the matter for resentencing to allow the trial court to restructure its sentencing choices. (Rodriguez, supra, at p. 509.)

Similarly, here, a firearm enhancement was imposed under section 12022.53, subdivision (d), because Torres "personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury" to Matthew Mejia during the commission of the crime of discharging a firearm from a vehicle. And with respect to the gang enhancement, Torres became eligible for the 10-year enhancement under section 186.22, subdivision (b)(1)(C), only because his crime of discharging a firearm from a vehicle also amounted to a "violation of Section 12022.53." (§ 667.5, subd. (c)(22).) Thus, like Rodriguez, Torres's firearm use resulted in additional punishment not only under section 12022.53, subdivision (d) (providing for additional punishment for personal use of a firearm that causes great bodily injury), but also under section 186.22, subdivision (b)(1)(C), for committing a violent felony as defined in section 667.5, subdivision (c)(22) (by personal use of a firearm that causes great bodily injury) to benefit a criminal street gang. Accordingly, only one of these enhancements could be "imposed" under section 1170.1, subdivision (f).

However, our inquiry does not end here. In Rodriguez, the trial court imposed and then executed both enhancements in violation of section 1170.1, subdivision (f). Here, the trial court imposed and then stayed both enhancements. This is a critical difference. As already indicated, section 1170.1, subdivision (f), provides in pertinent part that "[w]hen two or more enhancements may be imposed for . . . using . . . a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense." In People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez), our Supreme Court interpreted similar language in section 12022.53, subdivision (f), which provides in pertinent part that when "more than one enhancement per person is found true under this section, the court shall impose on that person the enhancement that provides the longest term of imprisonment." (§ 12022.53, subd. (f).) The court in Gonzalez explained that the term "impose," as used in that provision, means "impose and then execute," as opposed to "impose and then stay." (Gonzalez, supra, 43 Cal.4th at pp. 1126-1127, italics omitted.) Accordingly, section 12022.53, subdivision (f), "directs that only one enhancement may be imposed and then executed per person for each crime, and allows a trial court to impose and then stay all other prohibited enhancements." (Gonzalez, supra, at p. 1127, original italics.)

The same reasoning applies with equal force to section 1170.1, subdivision (f). While the trial court could not impose and execute the two enhancements at issue here without violating this provision (see Rodriguez, supra, 47 Cal.4th at p. 509), we see no reason why the trial court could not impose and then execute the greater of the enhancements (§ 12022.53, subdivision (d), providing for an additional term of 25 years to life for personal use of a firearm that causes great bodily injury), and impose and then stay the lesser of the enhancements (§ 186.22, subdivision (b)(1)(C), providing for an additional 10-year term for committing a violent felony as defined in § 667.5, subdivision (c)(22), to benefit a criminal street gang).

Here, the trial court stayed Torres's entire sentence on count 14, including both enhancements, pursuant to section 654 because shooting from a vehicle constituted the same action that rendered him criminally liable for the attempted murder in count 11. Accordingly, the section 186.22, subdivision (b)(1)(C), enhancement was not imposed and executed in violation of section 1170.1, subdivision (f). Instead, it was properly imposed and stayed in accordance with the principles enunciated in Gonzalez, supra, 43 Cal.4th at pages 1126-1127.

VI Torres further asserts that the trial court abused its discretion and violated his rights to a fair sentencing hearing and to the effective assistance of counsel by denying him the appointment of an expert to conduct a psychological evaluation designed to assess his mental state and level of maturity at the time of the crimes. However, as Torres acknowledges, we recently rejected this very argument in People v. Stuckey (2009) 175 Cal.App.4th 898. He argues that Stuckey "is incorrect," but provides no persuasive reason for us to reconsider our holding in that case. Suffice it to say that, contrary to Torres's position: "Evidence Code section 730 does not authorize the appointment of experts after trial in connection with sentencing proceedings. Nor do the federal or state Constitutions entitle an indigent criminal defendant to improve his chances of a favorable sentencing choice by having experts echo the arguments of defense counsel." (People v. Stuckey, supra, 175 Cal.App.4th at p. 904.)

VII We also reject Torres's attack on the constitutionality of his overall sentence. Specifically, he claims that his sentence "is a de facto sentence of life imprisonment without the possibility of parole," and that "[t]he statutory scheme in California that permits a juvenile who is only age 14 at the time of his crimes to be given a sentence that far exceeds his natural life span violates the proscriptions against cruel and/or unusual punishment in the federal and state Constitutions." While we agree with Torres that his sentence amounts to a de facto LWOP sentence, we disagree that such a sentence is grossly disproportionate to his heinous crimes.

The Eighth Amendment to the United States Constitution proscribes "cruel and unusual punishments" and "contains a 'narrow proportionality principle' that 'applies to non-capital sentences.'" (Ewing v. California (2003) 538 U.S. 11, 20 [155 L.Ed.2d 108, 117], original italics, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 [115 L.Ed.2d 836, 866]; Lockyer v. Andrade (2003) 538 U.S. 63, 72 [155 L.Ed.2d 144, 155-156].) While this proportionality principle "'does not require strict proportionality between crime and sentence,'" it does prohibit "'extreme sentences that are "grossly disproportionate" to the crime.'" (Ewing v. California, supra, 538 U.S. at p. 23, quoting Harmelin v. Michigan, supra, 501 U.S. at p.1001.)

Torres has failed to demonstrate that his sentence is grossly disproportionate to his crimes. His sentence, after the modifications we have made, is two consecutive terms of 25 years to life, plus three consecutive terms of 15 years to life, plus a consecutive determinate term of 40 years 8 months. This is indeed a harsh sentence. But it would be insulting to the victims and their families to hold that such a sentence is grossly disproportionate to the crimes of first degree murder with special circumstances, premeditated attempted murder, shooting a firearm from a vehicle, and street terrorism, especially in light of the fact that these crimes were committed to benefit a criminal street gang. Hernandez's life was ruthlessly stripped from him, and Matthew Mejia's lower extremities rendered inoperable, all because Torres decided to arm himself with a rifle and drive through Stockton shooting those he suspected of being rival gang members.

Torres relies primarily on Roper v. Simmons (2005) 543 U.S. 551 [161 L.Ed.2d 1], in which the United States Supreme Court held that "the death penalty cannot be imposed upon juvenile offenders" without violating the Eighth Amendment's proscription against cruel and unusual punishment. (Id. at p. 575.) The court in Roper relied on "evidence of national consensus against the death penalty for juveniles," and explained that "[b]ecause the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force. [Citation.] Capital punishment must be limited to those offenders who commit 'a narrow category of the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution.' [Citation.]" (Id. at pp. 564, 568.) The court then cited three differences between juvenile and adult offenders which "render[ed] suspect any conclusion that a juvenile falls the worst offenders" and thus deserving of execution: (1) juveniles possess "'[a] lack of maturity and an underdeveloped sense of responsibility . . . '"; (2) "juveniles are more vulnerable and susceptible to negative influences and outside pressures, including peer pressure"; and (3) "the character of a juvenile is not as well formed as that of an adult." (Id. at pp. 569-570; see also Thompson v. Oklahoma (1988) 487 U.S. 815, 822-823 [101 L.Ed.2d 702, 710] [reaching the same conclusion with respect to minors under the age of 16 at the time of the crime].)

According to Torres, "just as being under the age of 18 at the time of the offense precludes capital punishment under Roper, [his] age of 14 at the time of his crimes precludes a sentence guaranteeing that he will never be eligible for parole." Not so. As the Court of Appeal explained in People v. Demirdjian (2006) 144 Cal.App.4th 10: "'"'[D]eath is different.'"' [Citations.] Roper, Thompson and other cases focus on and are replete with references to the excessiveness of the death penalty when applied to a minor. [Citations.] Justice O'Connor's concurring opinion in Thompson, in which she cast the fifth and decisive vote for the judgment in that case, pointed out the significance of the distinction: 'The Court has accordingly imposed a series of unique substantive and procedural restrictions designed to ensure that capital punishment is not imposed without the serious and calm reflection that ought to precede any decision of such gravity and finality.' [Citation.]" (People v. Demirdjian, supra, at p. 14 [affirming the imposition of two consecutive terms of 25 years to life based on two special circumstance murders; defendant was 15 years old at the time of the crimes].)

Torres was not sentenced to death. His sentence amounts to an indeterminate term of 95 years to life, plus a consecutive determinate term of 40 years 8 months.*fn8 While such a sentence is "'materially indistinguishable'" from an LWOP sentence (People v. Mendez (2010) 188 Cal.App.4th 47, 63), Torres cites no United States Supreme Court or California authority holding that such a sentence violates the proscription against cruel and unusual punishment when imposed on a juvenile offender who commits special circumstance murder and three counts of premeditated attempted murder by shooting a firearm from a vehicle at individuals he believes to be rival gang members.

Indeed, in Graham v. Florida (2010) 560 U.S. ___ [130 S.Ct. 2011, 176 L.Ed.2d 825], the United States Supreme Court recently held that an LWOP sentence is unconstitutional for juvenile offenders who did not commit murder, and that a state must provide such a juvenile offender with "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (Id. at pp. ____, ____ [176 L.Ed.2d at pp. 2030, 2034.) The court did not hold that a meaningful opportunity to obtain release must be afforded to juveniles who commit murder on behalf of a criminal street gang.

Finally, this case is nothing like In re Nunez (2009) 173 Cal.App.4th 709, in which the Court of Appeal held that the petitioner's age at the time of his kidnapping offense (14 years old), combined with the absence of injury or death to his victim, raised a strong inference that his LWOP sentence constituted cruel and unusual punishment. (Id. at p. 727; see also People v. Mendez, supra, 188 Cal.App.4th at p. 66 [holding that a sentence of 84 years to life imposed on a 16-year-old offender who was convicted of carjacking, assault with a firearm, and several counts of robbery amounted to cruel and unusual punishment because "Mendez's youth and the absence of injury or death to any victim raise the strong inference that Mendez's de facto LWOP sentence is grossly disproportionate to his crimes and culpability"].)

Here, while Torres was only 14 years old at the time of his crimes, unlike the defendants in Graham, Nunez, and Mendez, Torres committed premeditated murder by firing a rifle from a vehicle for the benefit of a criminal street gang. He also committed multiple counts of premeditated attempted murder. The proscription against cruel and unusual punishment does not require California to provide such a defendant a meaningful opportunity to obtain release. Simply put, Torres's sentence does not constitute cruel and unusual punishment within the meaning of the United States Constitution.

VIII Nor are we persuaded by Torres's claim that his sentence violates the prohibition against "cruel or unusual punishment" contained in the California Constitution. (Cal. Const., art. I, § 17, italics added.)

A punishment may violate the California Constitution "although not cruel or unusual in its method, [if] it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) In Lynch, our Supreme Court described three "techniques" the courts have used to administer this rule, (1) an examination of the "nature of the offense and/or the offender, with particular regard to the degree of danger both present to society," (2) a comparison of the challenged penalty with the punishments prescribed for more serious offenses in the same jurisdiction, and (3) "a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision." (Id. at pp. 425-427, italics omitted.)

Torres relies on People v. Dillon (1983) 34 Cal.3d 441 (Dillon), in which a 17-year-old defendant was convicted of attempted robbery and first degree murder committed during the course of the robbery attempt. Defendant was attempting to steal the victim's marijuana plants, had previously overheard the victim threaten to shoot anyone who came on his property, and fired upon the victim with a rifle when the victim approached from behind carrying a shotgun. (Id. at pp. 450-452.) Based on the first Lynch technique, our Supreme Court held that defendant's life sentence was unconstitutionally excessive. (Dillon, supra, at p. 489.)

This case is not Dillon. Dillon involved an "unusually immature youth," who created a situation in which he found himself squaring off with a man armed with a shotgun, and who fired upon the victim out of fear for his life. (Dillon, supra, 34 Cal.3d at pp. 482-483, 488.) Thus, the homicide in Dillon was murder of the first degree only by virtue of the felony-murder rule. Torres, on the other hand, committed willful, deliberate, and premeditated murder, "the most aggravated form of homicide known to our law." (Id. at p. 487.) This murder was committed by firing a rifle from a motor vehicle with the intent to kill, and was carried out to benefit a criminal street gang, both special circumstances under section 190.2, subdivision (a).

Also unlike Dillon, this case involves an aggregate sentence imposed to punish Torres for crimes associated with four separate shootings. Accordingly, in determining whether Torres's overall sentence is unconstitutional, we must consider the totality of circumstances surrounding all of these shootings. All were carried out to benefit the Sureno street gang. All involved shooting from a motor vehicle. Torres was a major participant in each shooting, driving the vehicle and firing at least one of the shots. And as a result, Hernandez lost his life, and Matthew Mejia lost the use of his lower extremities. While Torres's age certainly matters, we agree with the trial court that despite his young age, this was "no youthful folly." Instead, Torres actively participated in a shooting spree designed to instill fear in the community, and along with this fear, to gain for himself some perverse form of respect among his fellow gang members.

We cannot find that Torres's punishment is "so disproportionate to the crime[s] for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch, supra, 8 Cal.3d at p. 424, fn. omitted; see People v. Em (2009) 171 Cal.App.4th 964, 976 [holding that a sentence of 50 years to life for aiding and abetting a gang-related robbery and for murder committed during that robbery was not unconstitutionally excessive for a 15-year-old defendant].)*fn9

DISPOSITION

Defendant Soto's attempted murder convictions in counts 2 and 4 are reversed. Defendant Torres's attempted murder convictions in counts 2, 4, 12, and 13 are reversed. The Torres judgment is also modified in the following respects: first, the 10-year gang enhancements imposed on counts 3, 8 and 11 pursuant to section 186.22, subdivision (b)(1)(C), are stricken, and a minimum term of 15 years before Torres may be considered for parole is instead imposed on each of these counts pursuant to section 186.22, subdivision (b)(5); and second, the 10-year gang enhancements imposed on counts 6 and 9 pursuant to section 186.22, subdivision (b)(1)(C), are stricken, and a five-year enhancement is instead imposed on each of these counts pursuant to section 186.22, subdivision (b)(1)(B). The judgments are otherwise affirmed.

We concur: HULL J. BUTZ J.


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