(Super. Ct. No. 09F04180)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Calvin Warr, member of the Ridezilla street gang, got into a heated verbal exchange with rival gang member Diantae Hogan. Hogan's friend, Gerald Kendrix, was present during the argument and was in the line of fire when defendant pulled a semi-automatic handgun and fired a single shot, striking both Hogan and Kendrix. Defendant then threatened another of Hogan's friends before leaving the scene. The jury convicted defendant of attempted murder, attempted voluntary manslaughter, and making a criminal threat. The jury also found that defendant personally used and discharged a firearm and that he committed the crimes for the benefit of a criminal street gang. Defendant was sentenced to state prison for an indeterminate term of 25 years to life plus a consecutive determinate term of 24 years, 8 months. The trial court also ordered defendant to pay a number of fines and fees, including booking and classification fees.
On appeal, defendant asserts (1) his attempted voluntary manslaughter conviction must be reversed because there is no evidence Kendrix either provoked the shooting or caused defendant to unreasonably believe in the need for self-defense; (2) the jury was incorrectly instructed on attempted voluntary manslaughter; and (3) the booking and classification fees must be stricken because there is no evidence of the actual administrative costs of booking and classification or of defendant's ability to pay these fees.
In People v. Smith (2005) 37 Cal.4th 733 (Smith), our Supreme Court held that a defendant who purposefully discharges a firearm at two people, both of whom are directly in his line of fire, may be convicted of two counts of attempted murder because the jury may reasonably infer that he intended to kill both people. (Id. at p. 743; see also People v. Chinchilla (1997) 52 Cal.App.4th 683, 691; People v. Leon (2010) 181 Cal.App.4th 452, 466.) But what if, as in this case, the jury convicts the defendant of attempted murder with respect to the primary victim and attempted voluntary manslaughter with respect to the secondary victim, even though there is no evidence the secondary victim either provoked the shooting or caused the defendant to unreasonably believe in the need for self-defense? In other words, where there is sufficient evidence to affirm two attempted murder convictions, but the jury mitigated one of the crimes to attempted voluntary manslaughter based on no evidence that such mitigation was warranted, must we reverse the attempted voluntary manslaughter conviction for insufficient evidence? In this case, as we explain in the discussion that follows, the answer is "no."
We also conclude that the jury was properly instructed on attempted voluntary manslaughter and that any error worked to defendant's benefit rather than his detriment. Defendant's claim that the booking and classification fees are not supported by substantial evidence has been forfeited. Accordingly, we affirm the judgment.
During the early morning hours of December 16, 2008, Hogan, Kendrix, and My'esha Lomack drove to a duplex at the corner of 40th Street and 41st Avenue in south Sacramento. Dynisha Buford, the mother of Hogan's daughter, was staying at the duplex. She had previously called Hogan and asked him to come over to pick up their daughter. Kendrix drove. Hogan was in the front passenger seat. Lomack was in the back seat. When they arrived, Hogan went up to the duplex and Lomack moved to the front passenger seat.
At the front door, Hogan got into an argument with Buford's sister, Teresa. Defendant, who was dating Teresa, was also at the duplex. He joined in the argument and told Hogan: "[Y]ou're fucking up my game" and "you need to leave." Hogan responded with: "[W]here's my fucking daughter[?] I don't give a fuck about what is going on. Where the fuck is Dynisha[?]" Kendrix heard that his friend was in an argument, opened the driver's side door, and watched the scene unfold over the roof of the car.
At this point, three or four other men came out of the duplex. Defendant and Hogan continued to argue. Hogan told defendant that he was "from the Starz," a street gang from south Sacramento. He then walked back to the car and challenged defendant to fight him in the street. Defendant, a member of the 29th Street Crip and Ridezilla street gangs, followed Hogan into the street. Defendant and Hogan pushed each other several times in front of the car. Defendant then pulled a semi-automatic handgun from his waistband, chambered a round, and fired a single shot. The bullet hit Hogan in the neck, shattering the sixth cervical vertebrae, and passing completely through the neck. The bullet then hit Kendrix at the base of the neck, collapsing the left lung, and lodging near the spine.
When the shot was fired, Lomack was trying to get out of the car to grab Hogan and pull him away from the confrontation. Hogan fell to the ground in front of the car. Kendrix fell into the car, which was still running, and hit the gas pedal with his foot. The car surged forward and struck Hogan, trapping him beneath the driver's side tire. Both Kendrix and Lomack fell out of the car.
Defendant then walked over to Lomack, pointed the gun at her chest, and said: "[B]itch, you want to die, too[?]" The other men who were at the duplex got into a car that was parked in the driveway. One of these men called to defendant: "Ridezilla, come on." Defendant got into the car and left the scene. Police and ...