Filed 4/16/19 (unmodified opinion attached)
             CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                               DIVISION ONE



THE PEOPLE,                                   B286117

       Plaintiff and Respondent,              (L.A. Super. Ct. No. BA447145)

       v.
                                              ORDER MODIFYING OPINION
OSCAR MEDINA et al.,                          AND DENYING PETITIONS FOR
                                              REHEARING
       Defendants and Respondents.




THE COURT*:


      It is ordered that the opinion, filed herein on March 19,
2019, be modified as follows:
      1. On page 20, heading No. 4 is changed by replacing
“Attempted Murders” with “Charged Crimes” so that the heading
reads:
       There Was Substantial Evidence that Medina
       Aided and Abetted the Charged Crimes
      2. On page 20, to the first sentence in subsection 4, add
“assaults with a firearm” after “attempted murders so that
sentence reads:
      Medina contends the evidence was insufficient that he
      aided and abetted the attempted murders and assaults
      with a firearm.
      3. One page 33, third sentence of the first full paragraph,
the words “additional” and “eleven” are deleted. The words “in
addition to those at issue in this case” are inserted after “offense”
and “a number” are inserted after “despite” so that the sentence
reads:
      In the 14 years from his previous assaults with a firearm to
      the crimes at issue here, he was convicted of five offenses in
      addition to those at issue in this case despite a number of
      those years having been spent in prison.
       4. On page 38, first sentence of last paragraph, insert “s, to
the first instance of the word “enhancement” so that the sentence
reads:
      As for the remaining prior serious felony enhancements, at
      the time of sentencing the court had no discretion “to strike
      any prior conviction of a serious felony for purposes of
      enhancement of a sentence under Section 667.”
      5. On page 39, first sentence of first paragraph, add “s” to
“conviction” so that the sentence reads:
      In a supplemental brief, Medina contends he is entitled to
      recalculation of his sentence after the statute’s effective
      date so the court can exercise its discretion to strike the
      prior convictions.




                                  2
      6. On page 39, second sentence of first paragraph, insert
“two remaining” after “Medina’s” so that the sentence reads:
      We agree, and direct the trial court to consider Medina’s
      two remaining five-year enhancements on remand.
      7. On page 40, second sentence of the disposition section,
“two” is inserted before “remaining” and “s” is added to the word
“enhancement” in the phrase “the remaining prior serious felony
enhancement ” so that the sentence reads:
      On remand, the trial court shall recalculate Medina’s
      sentence to strike one of the five-year prior serious felony
      enhancements, determine whether to strike the two
      remaining prior serious felony enhancements under section
      667, subdivision (a)(1) and/or the 20-year firearm-use
      enhancement under section 12022.53, subdivision (c), and
      reduce the sentence accordingly if appropriate.
      There is no change in the judgment.
      Respondents’ petitions for rehearing are denied.


____________________________________________________________




____________________ ___________________ ___________________
*ROTHSCHILD, P. J.      CHANEY, J.        WEINGART, J.**

** Judge of the Los Angeles Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.




                                    3
Filed 3/19/19 (unmodified opinion)
            CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                               DIVISION ONE


THE PEOPLE,                              B286117

   Plaintiff and Respondent,             (L.A. Super. Ct.
                                          No. BA447145)
   v.

OSCAR MEDINA et al.,

   Defendants and Appellants.



     APPEAL from judgments of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Affirmed in part;
remanded with directions.
     William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant Oscar Medina.
     Leonard J. Klaif, under appointment by the Court of
Appeal, for Defendant and Appellant Antonio Silva.




        Pursuant to California Rules of Court, rules 8.1100 and
        *

8.1110, this opinion is certified for publication with the exception
of parts II.B.2-3 and III.A.3 through and including III.F.




                                     4
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Michael C. Keller and Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
                    _______________________

                      I. INTRODUCTION
       Defendants Antonio Silva and Oscar Medina, members of
the Headhunters gang, were driving through the turf of a rival
gang called Diamond Street. They lost control of their car and
crashed into an apartment building. Bystanders gathered to look
at the accident. Unable to move the disabled vehicle, Silva and
Medina left and returned in another car. Silva got out of the car,
pointed his gun, and started shooting at bystanders while Medina
attempted to recover the crashed car. The people on the street
(including two individuals, Juan Alcaraz and Jose Sanchez, who
lived in the apartment building) fled in terror. None ended up
being hit by the gunfire. Medina was still unable to move the car,
and Silva and Medina then left separately. Silva left in the car in
which he and Medina had returned to the accident scene. Before
Medina left on foot, he screamed his gang’s name and a
derogatory term for the Diamond Street gang.
      A jury convicted Silva and Medina on four counts of
attempted murder and four counts of assault with a firearm. The
jury also found true firearm-use and criminal street gang
enhancements. On appeal, defendants both contend insufficient
evidence supports the convictions as well as the gang
enhancements imposed against them, that certain jury
instructions were improper, and that certain sentencing errors
need correction. Medina separately argues evidence of a previous




                                5
drive-by shooting in which he participated was erroneously
admitted. Medina also raises numerous sentencing issues: He
claims his Romero 1 motion was improperly denied, his prison
sentence of 62 years to life constitutes cruel and/or unusual
punishment, two five-year serious felony enhancements were
improperly imposed, and that his case must be remanded
pursuant to recently enacted Senate Bills Nos. 620 and 1393 for
the trial court to consider whether to strike the firearm-use
enhancement and his prior serious felony conviction for
sentencing purposes.
      In the published portion of this opinion, we hold it was
error to instruct the jury on a “kill zone” theory under the facts of
this case. In the unpublished portion, we explain why the error
was harmless, affirm the convictions and the firearm-use and
gang enhancement findings, and address Medina’s claims of
sentencing error.

     II. FACTUAL AND PROCEDURAL BACKGROUND
A.    The Charges and Enhancement Allegations
    Defendants were jointly charged in a consolidated second
amended information with four counts of attempted murder (Pen.
Code 2 §§ 187, subd. (a), 664, counts 1−4) and four counts of
assault with a firearm (§ 245, subd. (a)(2), counts 5−8) of Juan
Alcaraz, Jose Sanchez, John Doe One and John Doe Two. As to
the attempted murder counts, the information specially alleged

1    People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero).
2    Statutory references are to the Penal Code unless
otherwise designated.




                                  6
that Silva and a principal had personally used and discharged a
firearm. (§ 12022.53, subds. (b), (c) & (e).) As to the assault with
a firearm counts, the information alleged Silva had personally
used a firearm (§ 12022.5, subd. (a)).
      The attempted murders and aggravated assaults were
alleged to have been committed for the benefit of a criminal street
gang (§ 186.22, subd. (b).) 3 Finally, as to all counts, the
information specially alleged Medina had suffered three prior
serious or violent felony convictions within the meaning of the
three strikes law (§§ 667, subds. (b)-(i) and 1170.12) and section
667, subdivision (a)(1), and Silva had suffered one prior serious or
violent felony conviction within the meaning of section 667,
subdivision (a)(1) and had previously served two separate prison
terms for felonies (§ 667.5, subd. (b)).
B.    Summary of Trial Evidence
      1.    The Shooting
      In May 2016, Juan Alcaraz lived in an apartment building
on Boylston Street in Los Angeles. As the son of the building
manager, Alcaraz had access to the live video feeds from the
building’s outside security cameras.
     On the night of May 29, 2016, Alcaraz was inside the
apartment building when he heard and felt something hit the

3      For simplicity, this opinion uses the shorthand phrase “to
benefit a criminal street gang” to refer to crimes that according to
the statute, are 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 . . . .” (§ 186.22, subd. (b); see People v. Jones
(2009) 47 Cal.4th 566, 571, fn. 2.)




                                 7
building. Alcaraz checked the security camera feed and saw a
Chevy Cavalier had crashed into the building. Alcaraz went
outside. He saw Silva run from the car and then return to try
and help Medina, who was attempting to drive the car away. 4
When their efforts failed, defendants fled from the scene on foot.
      Alcaraz’s family and neighbors, including children, began
coming outside. Minutes later, Alcaraz noticed a Scion
automobile rapidly approaching the apartment building. Before
the car came to a complete stop, the doors opened and defendants
jumped out. Silva started shooting at Alcaraz and other
bystanders—adults and children—who were directly in his line of
fire. Alcaraz testified he was five to ten feet away and the other
bystanders were 20 feet away from Silva at this point.
Bystanders ran down the sidewalk away from Silva, funneled
between the apartment building on one side and a row of parked
cars on the other. Alcaraz heard six to eight gunshots before
Silva stopped firing and left in the Scion. 5 The gunfire did not
strike any onlookers or the apartment building.
       Medina remained behind with the Chevy Cavalier, but was
still unable to drive it. He began walking and screaming,
“Headhunters gang, they own this turf” and “This is my
neighborhood. This is Headhunters.” Medina also yelled that he
was not afraid and “F**k Diapers,” which Alcaraz understood




4    Police later discovered the car was owned by one of
Medina’s relatives.
5     Six spent .380 caliber casings were recovered at the crime
scene.




                                 8
was a derogatory term for Diamond Street gang members.
Medina then left on foot.
      Jose Sanchez also lived in the apartment building on May
29, 2016. He and Alcaraz were the first two people to venture
outside after the Chevrolet Cavalier crashed into the building.
Sanchez saw the Scion speeding toward the apartment building.
When the car was about 15 or 20 feet away, Sanchez heard a
gunshot and ran to the recessed front porch of the apartment
building. Adults and children were running and screaming.
Sanchez heard four or five more gunshots in quick succession.
When the shooting stopped, Sanchez heard a man say, “F**k
Diamond, Headhunters.”
     Three video recordings from the building’s security cameras
were played for the jury during trial. Those recordings
corroborated the eyewitness testimony described above. 6
      2.    The Gang Evidence
       Two weeks before the shooting, Medina told one of the
officers that ended up arresting him that he belonged to the
Headhunters gang and his moniker was Shadow.
      Los Angeles Police Officer Mark Flores testified as a gang
expert. According to Officer Flores, Medina and Silva were
members of the Headhunters gang at the time of the shooting.
Both men had numerous tattoos signifying their membership.


6     We requested the video recordings from the trial court and
have reviewed them in preparing this opinion. The recordings,
filmed from three different locations, show different aspects of
the events leading up to and after the shooting, as well as the
shooting itself, without sound.




                                9
Gang members commonly commit violent crimes together for
mutual support and protection, and to hold each other
accountable to the gang. Members of rival gangs, like the
Headhunters and Diamond Street, frequently perpetrate violent
crimes in each other’s claimed territory such as drive-by
shootings ending in murder. Their crimes are meant to
intimidate their rivals, terrorize the community, and enhance
their own gang’s notoriety. Given a hypothetical set of facts
based on the evidence in this case, Officer Flores opined a
shooting in the stronghold of rival gang territory was typically
carried out to benefit a criminal street gang.
      3.    Medina’s Prior Involvement in a Drive-By
            Shooting
       The prosecutor, over Medina’s objection, introduced
evidence that Medina had committed a 2003 drive-by shooting in
Diamond Street territory. During that event, Medina fired a
shotgun at some people standing outside a house, injuring one of
them who knew Medina as “Shadow.” The parties stipulated that
Medina was convicted of assault with a firearm (§ 245, subd.
(a)(2)) as a result of this 2003 shooting.
       After an Evidence Code section 402 pretrial hearing, the
trial court ruled the evidence was admissible to show intent and
motive, and that its probative value was not outweighed by any
prejudicial effect. Following the introduction of the evidence, the
court admonished the jury it was to consider the evidence, if at
all, “as to what [Medina’s] intent was on the date in question in
this case.” The court gave a similar limiting instruction on the
use of the evidence in the final charge to the jury. (See
CALCRIM No. 375.)




                                10
      Defendants neither testified nor introduced other evidence
in their defense.
C.    The Verdicts and Sentencing
       The jury convicted defendants as charged and found true
the firearm-use and gang enhancement allegations. In a
bifurcated proceeding, defendants each admitted the prior
conviction allegations. Prior to sentencing, the trial court denied
Medina’s motion to dismiss his prior strike convictions (Romero,
supra, 13 Cal.4th 497; § 1385). The court sentenced Silva to an
aggregate term of 54 years to life in state prison, and Medina to
an aggregate term of 62 years to life.

                       III. DISCUSSION
A.    Challenges to the Sufficiency of the Evidence
      1.    There Was Sufficient Evidence to Support the
            Convictions for Attempted Murder of Alcaraz
            and Sanchez
      Defendants first challenge the sufficiency of the evidence
supporting the convictions for attempted murder of Alcaraz and
Sanchez. In assessing this claim, we view the evidence in the
light most favorable to the judgment and presume in support of
the judgment the existence of every fact the jury could reasonably
deduce from the evidence. (People v. Zamudio (2008) 43 Cal.4th
327, 357; accord, People v. Manibusan (2013) 58 Cal.4th 40, 87.)
      A conviction for attempted murder requires proof that the
defendant intended to kill the victim and a direct but ineffectual
act toward accomplishing that goal. (People v. Perez (2010) 50
Cal.4th 222, 229 (Perez).) Defendants contend there was no
substantial evidence of intent to kill because there was




                                11
insufficient evidence of where the gun was pointed when fired,
there was no evidence regarding where the bullets landed or their
trajectory vis à vis the bystanders on the street, and no one was
injured.
       “[A] person who intends to kill can be guilty of attempted
murder even if the person has no specific target in mind. An
indiscriminate would-be killer is just as culpable as one who
targets a specific person.” (People v. Stone (2009) 46 Cal.4th 131,
140 (Stone).) Alcaraz testified that Silva pointed the gun at him
and Sanchez (as well as others) when firing. The video evidence
confirmed Alcaraz and Sanchez were down range and in the line
of fire when Silva pulled the trigger. Alcaraz was five to ten feet
away from Silva when Silva shot. Sanchez was 15 to 20 feet
away.
       Firing a gun at Alcaraz and Sanchez from such close range
was substantial evidence from which the jury could find a specific
intent to kill, and at least one direct but ineffective step towards
killing them. (People v. Smith (2005) 37 Cal.4th 733, 742 [“[T]he
act of purposefully firing a lethal weapon at another human being
at close range, without legal excuse, generally gives rise to an
inference that the shooter acted with express malice.”] (Smith).)
The fact that no one was injured does not negate an intent to kill.
(Ibid. [fact that bullet missed its mark does not show lack of
intent to kill]; People v Chinchilla (1997) 52 Cal.App.4th 683, 690
[fact that victim escaped death because of shooter’s poor
marksmanship does not necessarily establish a less culpable
state of mind].)




                                12
      2.    Substantial Evidence Did Not Support Giving a
            Kill Zone Theory Instruction With Regard to the
            John Doe Attempted Murder Counts


       “To be guilty of attempted murder, the defendant must
intend to kill the alleged victim, not someone else.” (People v.
Bland (2002) 28 Cal.4th 313, 328 (Bland); see also Smith, supra,
37 Cal.4th at p. 739.) For purposes of an attempted murder
charge, intent to kill does not transfer to nontargeted individuals.
(People v. McCloud (2012) 211 Cal.App.4th 788, 797 (McCloud).)
“Nonetheless, the kill zone theory, first approved by the Supreme
Court in Bland, yields a way in which a defendant can be guilty
of the attempted murder of victims who were not the defendant’s
‘primary target.’” (Ibid.) A conviction for attempted murder
under a kill zone theory requires evidence that the defendant
created a kill zone; that is, while targeting a specific person “the
defendant tried to kill the targeted individual by killing everyone
in the area in which the targeted individual was located. . . . [¶]
In a kill zone case, the defendant does not merely subject
everyone in the kill zone to lethal risk. Rather, the defendant
specifically intends that everyone in the kill zone die.” (Id. at
p. 798, italics in original.)
      The jury was instructed, and the People argued, the kill
zone theory only with regard to the John Doe attempted murder
counts. With regard to the John Does, the jury was instructed
the People had to prove the defendants intended to kill John Doe
One and Two, or alternatively under the kill zone theory
intended to kill Alcaraz and Sanchez by killing everyone in the




                                13
area in which Alcaraz and Sanchez were located (including Does
One and Two).
      “[I]t is error to instruct[ ] on a theory that is entirely
unsupported by the evidence.” (People v. Burnett (1992) 9
Cal.App.4th 685, 690.) Defendants contend the giving of a kill
zone instruction was error because the evidence adduced at trial
did not support it. 7 Defendants contend there were at least two
evidentiary deficiencies that made a kill zone instruction
inappropriate. First, defendants point out that a kill zone
instruction requires evidence of an intent to kill a specific
primary target, and argue such evidence was lacking here.
Second, defendants contend that even if Alcaraz and Sanchez
were primary targets, there was insufficient evidence the deaths
of Alcaraz and Sanchez were to be achieved by killing everyone
fleeing from the scene.
      We agree giving the jury a kill zone instruction was error.
The kill zone theory “is not a legal doctrine requiring special jury
instructions” but rather “is simply a reasonable inference the jury


7     Although defendants did not object to the kill zone
instruction, and the People contend this issue has been forfeited
on appeal, we review any claim of instructional error that
allegedly affects the defendants’ substantial rights even in the
absence of an objection. (§ 1259; People v. Smithey (1999) 20
Cal.4th 936, 976-977, fn. 7.) We can only determine if
defendants’ substantial rights were affected by deciding whether
the instruction was given in error and, if so, whether the error
was prejudicial. Because we find in the unpublished portion of
this opinion that the kill zone instruction did not affect the
defendants’ substantial rights, we also conclude defendants’
claim of ineffective assistance of counsel to be without merit.




                                14
may draw in a given case.” (Bland, supra, 28 Cal.4th at p. 331,
fn. 6.) The kill zone theory is one of concurrent intent—the
defendant has the intent to kill a particular target, and the jury
can infer from the method employed to attempt killing the
primary target a concurrent intent to kill those around the
primary target to ensure the primary target’s death. (Id. at
p. 330.) Without a primary target, there cannot be concurrent
intent because there is no primary intent to kill as to which the
intent to kill others could be concurrent.
       In addition to a primary target, there must be evidence of a
specific intent to kill everyone in the kill zone surrounding the
primary target–not some or most, but everyone. (E.g., Bland,
supra, 28 Cal.4th at p. 329 [“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.”]; Perez, supra, 50 Cal.4th at p. 232; People v.
Cardona (2016) 246 Cal.App.4th 608, 615; McCloud, supra, 211
Cal.App.4th at pp. 799−800; People v. Vang, (2001) 87
Cal.App.4th 554.) Nor in a firearm case is the evidentiary defect
with a kill zone instruction cured by reducing the number of
attempted murder counts to no more than the number of shots
fired, because regardless of the number of counts the defendant
must intend to kill everyone in the kill zone, whether or not they
are a charged victim. (People v. Cardona, supra, 246 Cal.App.4th
at pp. 614−615.) We recognize that some fellow Courts of Appeal
have held it sufficient to give a kill zone instruction if a
defendant recognizes (or accepts the fact) that a natural and
probable consequence of his or her act toward the primary target
would be that anyone (as opposed to everyone) within the zone of




                                15
harm could or would die. (E.g., People v. Windfield (2016) 3
Cal.App.5th 739, 760−761, review granted January 11, 2017,
S238073; People v. Adams (2008) 169 Cal.App.4th 1009, 1023.)
We respectfully disagree with this view, which we believe
replaces the specific intent/express malice required for an
attempted murder conviction with conscious disregard for
life/implied malice, which Bland makes clear cannot support an
attempted murder conviction. (Bland, supra, 28 Cal.4th at
pp. 327−328. 8 The kill zone theory does not operate as an
exception to the mental state requirement for attempted murder
or as a means of bypassing that requirement. “Rather, it is
simply a reasonable inference the jury may draw in a given case:
a primary intent to kill a specific target does not rule out a
concurrent intent to kill others.” (Bland at p. 331, fn. 6.)
      A kill zone instruction is never required, and as numerous
appellate cases attest, giving such an instruction can often lead
to error. For example, a kill zone instruction is not appropriate
where a defendant fires a deadly weapon into a group of


8     Implied malice is “ ‘an intentional act, the natural
consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct
endangers the life of another and who acts with conscious
disregard for life.’ ” (People v. Lasko (2000) 23 Cal.4th 101, 107.)
With regard to those in a zone of harm around the primary
target, we perceive little difference between that implied malice
standard and one in which the defendant acts towards a primary
target “ ‘despite the recognition, or with acceptance of the fact,
that a natural and probable consequence of that act would be
that anyone within [the kill] zone could or would die.’ ” (People v.
Windfield, supra, 3 Cal.App.5th at p. 758; People v. Adams,
supra, 169 Cal.App.4th at p. 1023.)




                                 16
individuals with the intent to kill but without a primary target.
Nor, in the absence of a primary target, is a kill zone instruction
appropriate even if the defendant intends to kill everyone in that
group. Where there is no primary target, there is no concurrent
intent and no basis for a kill zone instruction. It is further
important to understand that while a kill zone instruction would
not be appropriate, a defendant could still be convicted of
attempted murder under these circumstances. A jury can
reasonably conclude a defendant without a primary target who
repeatedly shoots into a crowd with the intent to kill committed
multiple counts of attempted murder. (Stone, supra, 46 Cal.4th
at pp. 138−140; McCloud, supra, 211 Cal.App.4th at pp. 798−799
[“the discussion in Stone makes clear that . . . a defendant can be
convicted of several attempted murders if he intended to kill
several people, even if there were not particular people he
intended to kill”].)
       We accordingly take this opportunity to reiterate that the
kill zone instruction is not appropriate in the absence of evidence
indicating the defendant had a primary target, and the specific
intent to kill everyone in the kill zone around the primary target
to ensure the target’s death. The theory does not mean the
defendant merely subjected persons near the primary target to
lethal risk. Rather, in a kill zone case, the defendant has a
primary target and reasons he cannot miss that intended target
if he kills everyone in the area in which the target is located. In
the absence of such evidence, the kill zone instruction should not
be given.
     Viewing the evidence in the light most favorable to the
judgment, there was no evidence the defendants here had a
primary target. There was no preexisting relationship or prior




                                17
incident between the defendants and Alcaraz or Sanchez, or any
other evidence suggesting the defendants specifically targeted
those two individuals when they returned to the apartment
building. Alcaraz did not identify himself as a primary target,
and testified that Silva pointed the gun at “the public,” “[l]ittle
kids, family, Sanchez, me [Alcaraz], at random, anybody” when
firing. Sanchez did not identify himself as a primary target—he
heard gunshots, but did not see the gun or where it was pointed.
The video showed Silva aimed and fired into the crowd, and did
not suggest Alcarez or Sanchez was a primary target. 9 The
evidence was therefore insufficient to support a kill zone theory,
and it was error to give a kill zone instruction to the jury.
      3.    The Error in Giving a Kill Zone Instruction Was
            Harmless

            (a)   Watson Review Applies 10
       The question remains whether this error requires reversal
of the two John Doe counts of attempted murder. To the extent
the court erred in instructing on a theory unsupported by the
evidence, the error is one of state law, “subject to the reasonable
probability standard of harmless error under People v. Watson
(1956) 46 Cal.2d 818, 836–837 [(Watson)].” (People v. Whisenhunt
(2008) 44 Cal.4th 174, 214; see also People v. Debose (2014) 59
Cal.4th 177, 205–206 [error of instructing on inapplicable theory
subject to Watson review] (Debose).) On the other hand,
“[i]nstructional error regarding the elements of the offense


9     Even if there had been evidence of a primary target, the kill
zone theory required an intent to kill everyone in the kill zone,
not just John Doe One and Two, to achieve the death of the
primary target. There was no evidence at trial of such an intent.




                                 18
requires reversal of the judgment unless the reviewing court
concludes beyond a reasonable doubt that the error did not
contribute to the verdict.” (People v. Chun (2009) 45 Cal.4th
1172, 1201; see Chapman v. California (1967) 386 U.S. 18, 24.)
      Defendants argue the instructional error should be subject
to the harmless beyond a reasonable doubt standard of Chapman,
contending the CALCRIM No. 600 instruction given to the jury
did not accurately explain the kill zone theory. The jury was
instructed:
      “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 defendants of
attempted murder of John Doe One or John Doe Two, the People
must prove that the defendants not only intended to kill [Juan]
Alcaraz or Jose Sanchez, but also either intended to kill John Doe
One or John Doe Two or intended to kill everyone within the kill
zone. If you have a reasonable doubt about whether the
defendant intended to kill John Doe One or John Doe Two or
intended to kill [Juan] Alcaraz or Jose Sanchez by killing
everyone in the kill zone, then you must find the defendant not
guilty of attempted murder of John Doe One or John Doe Two.”
       Defendants assert this instruction did not require the jury
to find intent to kill, thereby allowing the attempted murder

10    We note cases involving whether the jury was properly
instructed on the kill zone theory are currently before the
California Supreme Court in People v. Canizales (2014) 229
Cal.App.4th 820, review granted November 19, 2014, S221958;
People v. Cerda (Jan. 23, 2015, B232572, B235674) [nonpub. opn],
review granted April 22, 2015, S224430; and People v. Sek (2015)
235 Cal.App.4th 1388, review granted July 22, 2015, S226721.




                                19
convictions to be based solely on a finding of implied malice—in
other words, that the jury could erroneously find intent if it
concluded the reckless firing of a gun created the possibility
bystanders would be harmed.
       We review de novo whether jury instructions correctly state
the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) “ ‘When we
review challenges to a jury instruction as being incorrect or
incomplete, we evaluate the instructions as a whole, not in
isolation.’ ” (People v. Nelson (2016) 1 Cal.5th 513, 544.) The test
is “ ‘whether there is a “reasonable likelihood” that the jury
misconstrued or misapplied the law in light of the instructions
given, the entire record of the trial and the arguments of
counsel.’ ” (People v. Fiu (2008) 165 Cal.App.4th 360, 370.)
      As explained above, proof of express malice is required to
establish attempted murder. That is, the defendant must have
intended to cause the death of the victim or have known to a
substantial certainty that death would occur. Implied malice or
conscious disregard for human life will not suffice. (Smith, supra,
37 Cal.4th at p. 739; Bland, supra, 28 Cal.4th at pp. 327−328.)
       Defendants fail to explain how the language of CALCRIM
No. 600 created a reasonable likelihood the jury misconstrued or
misapplied the law on the express malice requirement. The trial
court instructed the jury on attempted murder, including the
elements that the defendant took a direct step toward killing
another person and “the defendant intended to kill that person.”
The court further instructed the jury that convicting a defendant
of attempted murder of the John Does required finding an intent
to kill the John Doe, or an intent to kill everyone within the kill
zone. The People argued in closing that defendants intended to




                                20
kill Alcaraz, Sanchez, John Doe One and John Doe Two. The
defense argued lack of intent, and highlighted that recklessness
was not enough to demonstrate intent. Considering the
instructions given, the entire record of the trial, and the
arguments of counsel, we do not find any reasonable likelihood
the jury misconstrued or misapplied the law on express malice.
       Defendants additionally fault CALCRIM No. 600 for its
single reference to “zone of harm” rather than “zone of lethal
harm.” They assert the failure to include the word “lethal”
invited the jury to infer the intent to kill John Does One and Two
solely from their presence in a zone of “nonlethal harm.” In
People v. Bragg (2008) 161 Cal.App.4th 1385 the court addressed
the adequacy of “zone of harm” to express the idea of a kill zone.
The court concluded, “[n]o reasonable juror could have failed to
understand from the instructions as a whole that, to the extent
the court occasionally used . . . the phrase ‘zone of harm,’ the
harm to which the court referred was the ultimate harm of death
and that the law required that defendant had to have intended to
kill the victims. Given the totality of the instructions, there was
no error.” (Id. at p. 1396.) Similar reasoning applies here. There
was no instructional error requiring that we apply Chapman
review, and we instead assess pursuant to Watson whether it is
reasonably probable the jury would have reached a result more
favorable to defendants had the kill zone instruction not been
given. (Debose, supra, 59 Cal.4th at pp. 205–206.)




                                21
            (b)   It Was Not Reasonably Probable the Jury
                  Would Have Reached a Result More Favorable
                  to Defendants Had the Kill Zone Instruction
                  Not Been Given
      The People did not rely exclusively on the kill zone theory
when arguing the John Doe attempted murder counts. As
discussed above, the People argued in closing that defendants
intended to kill John Does One and Two, and alternatively that
defendants intended to kill Alcaraz and Sanchez by killing
everyone within the kill zone (including the Does).
      Silva pointed the gun directly at individuals other than
Alcaraz and Sanchez while firing. Regardless of whether anyone
was hit, firing six to eight gunshots at Alcaraz, Silva and the
Does from five to 20 feet away was substantial evidence of a
specific intent to kill the two Does, and a direct but ineffectual
act toward accomplishing that goal. (Smith, supra, 37 Cal.4th at
p. 742.) In light of the lethal capability of the weapon used, the
number of shots fired, the proximity and direction of the gunfire,
the vulnerability of the victims, and the People’s nonkill zone
argument for guilt, the error in giving the kill zone instruction
was harmless. In evaluating what the jury is likely to have done
in the absence of the kill zone instruction, we “may consider,
among other things, whether the evidence supporting the
existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that
there is no reasonable probability the error of which the
defendant complains affected the result.” (People v. Breverman
(1998) 19 Cal.4th 142, 177.) Here, it is not reasonably probable
the jury would have reached a result more favorable to
defendants in the absence of kill zone instruction, as




                                22
uncontradicted testimony of Alcaraz, Sanchez and the video
recordings was relatively strong evidence of specific intent to kill
the Does, and any evidence supporting a different outcome was
relatively weak.
      4.    There Was Substantial Evidence that Medina
            Aided and Abetted the Attempted Murders
       Medina contends the evidence was insufficient that he
aided and abetted the attempted murders. “A ‘person aids and
abets the commission of a crime when he or she, acting with (1)
knowledge of the unlawful purpose of the perpetrator; and (2) the
intent or purpose of committing, encouraging, or facilitating the
commission of the offense, (3) by act or advice aids, promotes,
encourages or instigates, the commission of the crime.’ ” (People
v. Marshall (1997) 15 Cal.4th 1, 40.) “[T]o be guilty of attempted
murder as an aider and abettor, a person must give aid or
encouragement with knowledge of the direct perpetrator’s intent
to kill and with the purpose of facilitating the direct perpetrator’s
accomplishment of the intended killing—which means that the
person guilty of attempted murder as an aider and abettor must
intend to kill.” (People v. Lee (2003) 31 Cal.4th 613, 624.)
“Whether a person aided and abetted in the commission of a
crime ordinarily is a question of fact.” (In re Lynette G. (1976) 54
Cal.App.3d 1087, 1094.)
      Medina maintains he was merely present at the shooting
and cites Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262 as
supporting his contention that he did not aid and abet Silva. 11 In

11    Although we may find lower federal court decisions
concerning state law issues persuasive, they do not control.
(People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 296.)




                                 23
that case, the court found insufficient evidence to support the
defendant’s conviction as an aider and abettor to a murder and
an attempted murder based on his presence during the crimes.
(Id. at p. 1277.) The defendant, a juvenile, was standing beside
his brother when his brother shot and killed one person and shot
at another. Rather than flee with his brother after the shooting,
the defendant went home. (Id. at pp. 1266−1267.) There was no
evidence the defendant knew of his brother’s intent or acted in
any way to encourage or facilitate the crimes. The Ninth Circuit
held that, even assuming the element of knowledge, there was no
evidence the defendant did or said anything before, during or
after the shooting from which a reasonable fact finder could infer
an intent to aid and abet the crimes. (Id. at pp. 1278−1279.)
       A defendant’s mere presence at a crime scene does not
amount to aiding and abetting. (People v. Joinder (2000) 84
Cal.App.4th 946, 967; People v. Hill (1946) 77 Cal.App.2d 287,
293−294.) However, unlike Juan H.’s, Medina’s convictions are
based on more than mere presence. (See In re Juan G. (2003) 112
Cal.App.4th 1, 5 [The factors relative to determining aiding and
abetting are presence at the crime scene, companionship and
conduct before and after the offense, including flight.].)
Defendants were fellow gang members who entered rival gang
territory together. They fled together following the car crash.
They returned together minutes later in the Scion with front and
back passenger doors open. They simultaneously jumped out of
the car. Medina stood briefly behind Silva, who began shooting
at the bystanders while Medina attempted to recover the
Cavalier. Silva reentered the Scion, leaving the front passenger
door open for Medina. After Silva drove away, Medina shouted
gang-related insults for the neighborhood to hear. From this




                                24
evidence a jury could reasonably infer the shooting was planned,
and that Medina was not simply an onlooker but shared Silva’s
intent to kill, and coordinated his actions with Silva to encourage
and facilitate a gang-related shooting.
      While gang evidence standing alone cannot prove a
defendant is an aider and abettor to a crime, a gang expert’s
testimony can serve to “strengthen[ ] inferences arising from
other evidence specific to the defendant’s role in the crime at
issue.” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) Here,
Officer Flores’s testimony that the Headhunters and Diamond
Street gangs are longstanding rivals, and that gang members
typically commit violent crimes together for protection and
support in rival gang territory, further supported the inference
that Medina intended, encouraged and facilitated the shooting.
      5.    The Gang Enhancements
       Defendants’ claim that the evidence was insufficient to
support the gang enhancements imposed against them is
meritless. The location of the shooting in rival gang territory, the
coordinated involvement of two Headhunters gang members (one
of whom was involved in a prior drive-by shooting in Diamond
Street territory), Medina’s behavior in shouting gang insults after
the shooting, and the gang expert’s opinion constituted ample
evidence that the attempted murders and aggravated assaults
were 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” within the meaning of section 186.22, subdivision
(b)(1). (People v. Ferraez (2003) 112 Cal.App.4th 925, 931
[substantial evidence supported gang enhancement when expert




                                25
opinion was coupled with other testimony from which jury
reasonably could infer crime was gang related].)
B.    The Unanimity Instruction Given to the Jury Does
      Not Require Reversal
       Following closing arguments but prior to deliberations, the
trial court sua sponte gave the jury an instruction based on
CALCRIM No. 3500:
     “[The] defendants are charged with attempted murder of
John Doe One and John Doe Two in counts 3 and 4 respectively.
      “The People have presented evidence of more than one act
to prove the defendant committed these offenses.
      “You must not find the defendant guilty unless you all
agree that the People have proved that the defendant committed
at least one of these acts or counts and you agree on which act he
committed for each of those counts.” (CALCRIM No. 3500.) The
court stated that it gave the instruction because the People
argued the kill zone theory as an alternative means of proving
the John Doe attempted murder counts, and it wanted to make
sure the jurors unanimously agreed there was an intent to kill a
specific John Doe One and John Doe Two, or an intent to kill
everyone in the kill zone. The court gave the same unanimity
instruction for the assault with a firearm charges against John
Doe One and John Doe Two in counts 7 and 8, respectively.
     Defendants contend the trial court erred in failing to give a
more pinpoint unanimity instruction regarding the identity of
John Doe One and John Doe Two for each of the attempted
murder and assault with a firearm counts. Defendants did not
request such a pinpoint instruction, and that failure forfeits their




                                 26
claim of error on appeal. (People v. Jones (2014) 223 Cal.App.4th
995, 1001; accord, People v. Rogers (2006) 39 Cal.4th 826,
878−879 [no sua sponte duty to give pinpoint instruction].) 12
       Nor do we agree that the alleged instructional error
affected the defendants’ substantial rights. (§ 1259.) Giving the
CALCRIM No. 3500 unanimity instruction in this case was error,
but not for the reasons defendants assert. That form instruction
is typically appropriate when the evidence suggests more than
one discrete crime, the prosecution has not elected among those
crimes, and jurors must therefore agree on the specific crime
committed. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) For
example, in People v. McNeill (1980) 112 Cal.App.3d 330 upon
which defendants rely, the defendant fired a series of rapid
gunshots at four people. (Id. at p. 334.) The defendant was
convicted on an information that alleged a single count of assault
with a deadly weapon that named all four individuals as victims.
(Ibid.) On appeal, the conviction was reversed because no
unanimity instruction was given, and the Court of Appeal could
not determine whether the jurors agreed unanimously upon
which act constituted the charged offense. (Id. at p. 336.)
      The pleading defect at issue in McNeil was not present
here. The information alleged four separate counts of attempted
murder and four separate counts of assault with a firearm, each
against a single named victim. A unanimity instruction


12    Defendants contend they did not have the opportunity to
object because the trial court read the instruction before
discussing it with counsel. However, outside the presence of the
jury the court explained why it gave the instruction and gave
counsel an opportunity to comment.




                                27
requiring agreement on the specific act committed by the
defendant was not required here given that each crime and each
victim was separately charged, and the shots directed at those
victims were fired within seconds of each other. (E.g., People v.
Bui (2011) 192 Cal.App.4th 1002, 1010−1011 [gunshots fired
within seconds of each other formed one continuous course of
conduct, such that prosecutor was not required to elect which
shot she relied on for attempted murder charge, and trial court
was not required to give a unanimity instruction].) 13 It was
therefore error to instruct the jury on a legal theory that,
although technically correct, had no application to the instant
case. (See People v. Cross (2008) 45 Cal.4th 58, 67; People v.
Guiton (1993) 4 Cal.4th 1116, 1129.) That being said, the
instruction as given held the People to an even greater degree of
proof than necessary by requiring unanimity on which particular
fired bullet supported the attempted murder and assault counts.
Accordingly, any error was harmless. (Guiton, at p. 1130 [no
reversible error where no reasonable probability jury misled to
defendant’s detriment].)
      Nor do we find that the unanimity instruction as given, or
the lack of a more pinpoint instruction, allowed the jury to
convict defendants without agreeing on the identity of the Doe


13    Nor was a unanimity instruction required (as the trial
court believed) because of the kill zone instruction, as the kill
zone theory is not a separate distinct crime or a legal doctrine
requiring special jury instructions, but rather “simply a
reasonable inference the jury may draw in a given case: a
primary intent to kill a specific target does not rule out a
concurrent intent to kill others.” (Bland, supra, 28 Cal.4th at
p. 331, fn. 6.)




                                 28
victims. Silva’s counsel argued the jurors needed to agree on the
identity of the Does, and suggested the People had not carried
their burden because “they want you to pick and choose
whichever one that [they] think[ ] might actually work, basically,
just throwing it in the air and relying on you to do the hard work
for [them]. . . . You don’t have enough information to decide one
way or the other [who the Does are].” The People did not dispute
the jurors needed to agree on this issue, responding in rebuttal
“you [the jury] can decide who is John Doe 1 [and] 2.” The trial
court fully and properly instructed the jury on the elements of
attempted murder, assault with a firearm and aiding and
abetting liability, which included, where applicable, the element
of specific intent directed at the named victim. The trial court
further instructed the jury based on CALCRIM No. 200 that the
inclusion of a particular instruction does not mean that the court
was “suggesting anything about the facts,” and that the jury
should first decide what the facts were and then “follow the
instructions that do apply to [those] facts.”
      We presume the jury followed these instructions and
ignored any inapplicable instructions. (People v. Holloway (2004)
33 Cal.4th 96, 152-153.) We also credit that jurors will interpret
the instructions with intelligence and common sense. (People v.
Guiton, supra, 4 Cal.4th at p. 1131.) Because the unanimity
instruction did not keep the jury from evaluating the defendants’
defense that they lacked the requisite intent to kill specific
individuals, “we are confident the jury was not sidetracked by the
correct but irrelevant instruction, which did not figure in the
closing arguments, and we conclude that the giving of the
instruction was harmless error.” (People v. Olguin (1994) 31
Cal.App.4th 1355, 1381−1382.)




                                29
C.    Admissibility of Medina’s 2003 Drive-By Shooting
      Medina claims the trial court erred in admitting evidence
regarding his participation in a 2003 shooting. The trial court’s
ruling on the admissibility of such evidence under Evidence Code
sections 1101 and 352 is reviewed for abuse of discretion. (People
v. Cage (2015) 62 Cal.4th 256, 273−274.)
      Evidence Code section 1101, subdivision (a) “prohibits
admission of evidence of a person’s character, including evidence
of character in the form of specific instances of uncharged
misconduct, to prove the conduct of that person on a specified
occasion.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393, (Ewoldt).)
Subdivision (b) of the section provides, however, this rule “does
not prohibit admission of evidence of uncharged misconduct when
such evidence is relevant to establish some fact other than the
person’s character or disposition.” (Ewoldt, at p. 393; see Evid.
Code, § 1101, subd. (b).)
      The admissibility of evidence under Evidence Code section
1101, subdivision (b) depends on the degree of similarity between
the uncharged act and the charged offense. (Ewoldt, supra, 7
Cal.4th at p. 402.) For evidence of an uncharged act to be
admissible to prove motive, intent, identity, or common design or
plan, the uncharged act and charged offense must be “sufficiently
similar to support a rational inference” of these material facts.
(People v. Kipp (1998) 18 Cal.4th 349, 369 (Kipp).) “The least
degree of similarity (between the uncharged act and the charged
offense) is required in order to prove intent.” (Ewoldt, supra, 7
Cal.4th at p. 402.) To be admissible to prove intent, the
uncharged misconduct need only be sufficiently similar to the
charged offense to support the inference that the defendant




                                30
probably harbored the same or similar intent in each instance.
(Ibid.) Similarly, “ ‘[t]he existence of a motive requires a nexus
between the [uncharged] crime and the [charged] one, but such
linkage is not dependent on comparison and weighing of the
similar and dissimilar characteristics of the past and present
crimes.’ ” (People v. Thompson (2016) 1 Cal.5th 1043, 1115.)
      Finally, the probative value of the evidence of the
uncharged crime “must be substantial and must not be largely
outweighed by the probability that its admission would create a
serious danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Kipp, supra, 18 Cal.4th at p. 371, accord,
People v. Carter (2005) 36 Cal.4th 1114, 1149; Evid. Code, § 352)
      1.    Evidence of the 2003 Drive-By Shooting Was
            Admissible to Prove Intent and Motive
       Medina contends evidence of the 2003 drive-by shooting
was too remote and too dissimilar to be relevant to his intent and
motive during the instant offenses. He argues that unlike the
2003 shooting, on this occasion Medina was not alone and did not
fire a gun. Instead, he crashed his relative’s car and was solely
focused on trying to drive it away.
      As the trial court recognized in admitting the evidence,
Medina’s intent at the time of the instant offense was the critical
issue in the case. The prosecution’s theory was that although not
the shooter, Medina aided and abetted the attempted murders.
Medina’s theory was that he was just trying to retrieve his
relative’s car and had no criminal intent. Evidence of an earlier
unprovoked drive-by shooting of bystanders outside a residence
in rival gang territory was offered to contradict Medina’s position,
and to help argue that he harbored the intent to kill bystanders




                                 31
in rival gang territory. While not identical, the offenses were
sufficiently similar to meet the standard required by Evidence
Code section 1101, subdivision (b). (See Ewoldt, supra, 7 Cal.4th
at p. 403; Kipp, supra, 18 Cal.4th at p. 371.)
        Evidence of the previous drive-by shooting was also
probative of the People’s theory regarding Medina’s motive in
committing the instant offenses—to benefit a criminal street
gang. (See People v. McKinnon (2011) 52 Cal.4th 610, 655
[“ ‘[t]he People are entitled to “introduce evidence of gang
affiliation and activity where such evidence is relevant to an
issue of motive or intent” ’ ”]; People v. Zepeda (2001) 87
Cal.App.4th 1183, 1212 [evidence the defendant took part in prior
gang-related drive-by shooting was relevant to prove defendant’s
motive in current drive-by shooting was gang related]; People v.
Funes (1994) 23 Cal.App.4th 1506, 1518 [evidence of prior gang
activity was relevant to the defendant’s motive for murdering
victim].)
      2.    The Trial Court Did Not Abuse Its Discretion in
            Determining Evidence of the 2003 Drive-By
            Shooting Was Not Substantially More
            Prejudicial than Probative
      The trial court’s determination that evidence regarding the
2003 incident was not sufficiently remote, and not more
prejudicial than probative, was within its discretion. (See People
v. Cole (2004) 33 Cal.4th 1158, 1195; People v. Whisenhunt,
supra, 44 Cal.4th at p. 205 [prior uncharged violent act between
seven and 10 years earlier was admissible to show intent; “we
cannot conclude that the passage of time significantly lessened
the probative value of the evidence”].) Additionally, the fact the




                                32
earlier shooting resulted in a conviction meant the jury in this
case was less inclined to consider whether Medina was guilty of
the uncharged offense and whether he should be punished for it.
(See People v. Tran (2011) 51 Cal.4th 1040, 1047.)
D.    Cumulative Errors
       Defendants contend that a combination of errors rendered
their trial fundamentally unfair, requiring reversal. The few
errors that occurred during trial were harmless, whether
considered individually or collectively. (People v. Cunningham
(2001) 25 Cal.4th 926, 1009 [stating general rule].) Defendants
were entitled to a fair trial, but not a perfect one. (United States
v. Hasting (1983) 461 U.S. 499, 508−509 [the Constitution does
not guarantee an error-free, perfect trial]; People v. Anzalone
(2013) 56 Cal.4th 545, 556.)
E.    Medina’s Claims of Sentencing Error
      1.    Motion to Dismiss Prior Strike Convictions
       Medina had three prior strike convictions: two for assault
with a firearm in 2004 and one for making a criminal threat in
2011. At a posttrial hearing, Medina moved to dismiss all three
prior strike convictions. In denying the motion, the court
explained, “I think the facts in this case don’t warrant it. The
record—the continuing nature of picking up convictions on behalf
of Mr. Medina, I don’t think he’s someone who falls out of the
spirit of the three strikes law. So the 1385 motion, Romero
motion to strike priors, is denied.” Medina appeals this ruling,
which we review under the abuse of discretion standard. (People
v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).)




                                 33
      Trial courts have limited discretion under section 1385 to
dismiss prior convictions in three strikes cases. (Romero, supra,
13 Cal.4th at p. 530; see People v. Williams (1998) 17 Cal.4th 148,
162.) “In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘ “[t]he burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence of
such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.” ’ ” (Carmony, supra, 33 Cal.4th at pp. 376−377.)
“[W]hen a defendant’s criminal conduct has been proven to be
immune from ordinary modes of punishment, one of the duties of
the judiciary is to protect the public by utilizing recidivist
sentencing statutes to incarcerate such persons.” (People v.
Castello (1998) 65 Cal.App.4th 1242, 1250−1251.) Thus, when
sentencing pursuant to the three strikes law, objectives include
protection of public safety and punishment of recidivism. (Id. at
p. 1251.)
       “Second, ‘ “a decision will not be reversed merely because
reasonable people might disagree. ‘An appellate tribunal is
neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.’ ” ’ ” (Carmony, supra, 33 Cal.4th
at p. 377.) Generally, an abuse of discretion occurs only when
“the trial court was not ‘aware of its discretion’ to dismiss” a prior
strike conviction, considered impermissible factors, or the
defendant clearly falls outside the spirit of the three strikes law.
(Id. at p. 378.)
       In deciding whether to dismiss a prior strike conviction the
trial court “must consider whether, in light of the nature and




                                 34
circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside
the scheme’s spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (People v. Williams, supra,
17 Cal.4th at p. 161.) We presume the trial court considered all
“relevant factors in the absence of an affirmative record to the
contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
       According to the probation officer’s report, Medina’s
criminal history consisted of his two convictions for assault with
a firearm and one conviction for possession of a controlled
substance (Health & Saf. Code, § 11377, subd. (a)) in 2004 for
which Medina was sentenced to state prison; a conviction for
misdemeanor hit and run (Veh. Code, § 20002, subd. (a)) in 2007;
and a conviction for making a criminal threat (§ 422) in 2011 for
which he was again sentenced to state prison. 14 Medina, a
documented gang member, was on parole at the time of the
instant offenses.
       Medina contends the trial court abused its discretion by
failing to dismiss two of his three prior strike convictions as an
alternative to dismissing all of them. Medina maintains that


14    We are aware that when multiple offenses are committed
as part of a single act, at the same time during the same course of
criminal conduct against the same victim, only one of them is to
be considered as a prior strike conviction. (People v. Vargas
(2014) 59 Cal.4th 635, 646−649.) Medina does not argue, and the
record does not reflect, that his two 2004 assault with a firearm
convictions fall under Vargas such that they should be considered
only one strike.




                                 35
being sentenced as a second-strike offender would have been
sufficient punishment based on him being 16 years old when he
committed the prior assaults with a firearm, not being the
shooter in this case, and the fact no one was injured. He further
speculates, without any support in the record, that his criminal
threat conviction may not have been that serious.
      This is not the “extraordinary case” which “the relevant
factors . . . manifestly support the striking of a prior conviction
and no reasonable minds could differ.” (Carmony, supra, 33
Cal.4th at p. 378.) While Medina’s record was not necessarily
extensive, a reasonable factfinder could conclude he was a violent
recidivist offender and danger to the community. In the 14 years
from his previous assaults with a firearm to the crimes at issue
here, he was convicted of five additional offenses despite eleven of
those years having been spent in prison. Three of his prior felony
convictions were characterized by violence, at least one of which
was gang-related. He was on parole when he committed the
attempted murders and assaults with a firearm. The trial court
did not abuse its discretion in declining to strike the prior
convictions.
       Medina finally asserts his trial counsel was ineffective for
failing to urge the alternative of dismissing one prior strike
conviction, and sentencing Medina as a second-strike offender.
Section 1385 grants a trial court the discretion to dismiss a prior
strike conviction on its own motion, without request of trial
counsel or motion by the prosecutor. Given this authority,
Medina’s claim of ineffective assistance of counsel would prevail
only if he shows: (1) the trial court was unaware of its discretion
to dismiss one or more prior strike convictions; (2) the court was
aware of its discretion under section 1385, but abused it in




                                36
declining to dismiss the convictions, and (3) Medina suffered
resulting prejudice because he fell outside the spirit of the three
strikes law. (See Strickland v. Washington (1984) 466 U.S. 668,
694.) The trial court was fully aware of its discretion to dismiss
the prior strike convictions and did not abuse its discretion by
declining to do so. Medina therefore cannot demonstrate the
prejudice required for a successful claim of ineffective assistance
of counsel.
      2.    Cruel and/or Unusual Punishment
       As a third strike offender, Medina was sentenced to an
aggregate state prison term of 62 years to life. That sentence
consists of concurrent indeterminate life terms with minimum
terms of 27 years (three times the upper nine-year term) for each
of the four attempted murders, plus 20 years for the firearm-use
enhancement, plus 15 years for the two serious felony
enhancements. 15 Medina contends this sentence was
unconstitutionally excessive under the Eighth Amendment of the
United States Constitution (proscribing “cruel and unusual
punishments”) and article 1, section 17 of the California
Constitution (prohibiting “[c]ruel or unusual punishment”).
       Because Medina failed to raise this issue in the trial court,
he has forfeited his claim. (People v. Speight (2014) 227
Cal.App.4th 1229, 1247 [“A claim a sentence is cruel and unusual
is forfeited on appeal if it is not raised in the trial court, because
the issue often requires a fact-bound inquiry”].) In any event, the
claim lacks merit.



15   Sentencing errors with respect to the four convictions for
assault with a firearm are discussed below.




                                 37
       To the extent Medina argues his sentence is categorically
impermissible as a de facto life without parole sentence given his
age and personal characteristics, he is incorrect. While a de facto
life without parole sentence for a juvenile convicted of a
nonhomicide offense violates the Eighth Amendment (People v.
Caballero (2012) 55 Cal.4th 262, 265), that rule does not apply
here because Medina was a 30-year-old adult. (People v. Argeta
(2012) 210 Cal.App.4th 1478, 1482.)
       Nor is Medina’s sentence grossly disproportionate under
federal and state constitutional principles. “ ‘[T]he Eighth
Amendment does not require strict proportionality between crime
and sentence. Rather, it forbids only extreme sentences that are
“grossly disproportionate” to the crime. [Citations.]’ [Citation.]
Successful grossly disproportionate challenges are ‘ “exceedingly
rare” ’ and appear only in an ‘ “extreme” ’ cases.” (People v. Em
(2009) 171 Cal.App.4th 964, 977.) Under our state constitutional
cruel and unusual punishment provision, we use “a three-
pronged test to determine whether a particular sentence is
disproportionate to the offense for which it is imposed. First, we
examine ‘the nature of the offense and/or the offender, with
particular regard to the degree of danger both present to society.’
[Citation.] Second, we compare the punishment imposed with
punishments prescribed by California law for more serious
offenses. [Citation.] Third, we compare the punishment imposed
with punishments prescribed by other jurisdictions for the same
offense. [Citation.] Defendant must overcome a ‘considerable
burden’ to show the sentence is disproportionate to his level of
culpability. [Citation.] Therefore, ‘[f]indings of disproportionality
have occurred with exquisite rarity in the case law.’ ” (Id. at
p. 972.)




                                 38
        Considered under these principles, Medina’s sentence was
not grossly disproportionate. For example, a sentence of 40 years
to life for multiple convictions, including attempted murder with
a firearm, was held not to be excessive even as to a defendant
with no prior convictions. (People v. Villegas (2001) 92
Cal.App.4th 1217, 1230.) Medina’s arguments about the nature
of the offense and offender do not carry Medina’s considerable
burden to show disproportionality. Medina was a recidivist
offender of crimes of violence who committed attempted murder
for gang-related reasons while on parole.
       Nor is Medina’s comparative analysis convincing. The
significant part of Medina’s nonstrike-related sentence can be
attributed to a 20-year section 12022.53 firearm-use
enhancement, and thus Medina’s comparison of his sentence to
ones not subject to section 12022.53 is inapposite. “[T]he
Legislature determined in enacting section 12022.53 that the use
of firearms in commission of the designated felonies is such a
danger that, ‘substantially longer prison sentences must be
imposed . . . in order to protect our citizens and to deter violent
crime.’ The ease with which a victim of one of the enumerated
felonies could be killed or injured if a firearm is involved clearly
supports a legislative distinction treating firearm offenses more
harshly than the same crimes committed by other means, in
order to deter the use of firearms and save lives.” (People v
Martinez (1999) 76 Cal.App.4th 489, 497−498.) Here, the
intentional use of a firearm could easily have caused death or
injury. That neither result occurred in this case does not obviate
the need to distinguish between violent crimes committed by use
of a firearm and those committed by other means. (People v.




                                 39
Villegas, supra, 92 Cal.App.4th at p. 1231.) Medina’s sentence
was not unconstitutionally excessive.
      3.    Firearm-Use Enhancement
      When the trial court sentenced Medina on October 31,
2017, it was required to apply the 20-year firearm-use
enhancement under section 12022.53, subdivision (c). Effective
January 1, 2018, the statute now affords a court discretion to
strike or dismiss the gun discharge/use enhancement. (Stats.
2017, ch. 682, § 2.) The statute applies retroactively to Medina
because his conviction was not final as of the effective day of the
amendment, and he may benefit from the potential reduced
sentence. (See People v. Robbins (2018) 19 Cal.App.5th 660, 678.)
      Medina contends he is entitled to recalculation of his
sentence after the statute’s effective date so the trial court can
exercise its discretion to strike the firearm-use enhancement. We
agree and direct the trial court to consider Medina’s 20-year
enhancement on remand to determine if Medina’s sentence
should be recalculated. We disagree with the People’s view that
remand for this purpose is unnecessary because the record
indicates the court would not have exercised its discretion to
strike the enhancement in any event. (See People v. McDaniels
(2018) 22 Cal.App.5th 420, 425.)
      In response to an inquiry by trial counsel for Silva (not
Medina) about continuing Silva’s sentencing hearing so the court
could consider exercising its discretion under the soon to be
amended section 12022.53, subdivision (c), the court declined,
saying it would not exercise its discretion in any event. As
neither the request nor the court’s response included Medina, we




                                40
conclude remand is appropriate. We express no opinion as to how
the court should exercise its newfound discretion.
      4.    Prior Serious Felony Enhancements
      In sentencing Medina, the trial court imposed two prior
serious felony enhancements under section 667, subdivision
(a)(1) 16 based on two prior convictions in the same case (L.A.
Super. Ct. case No. BA255819.) Medina asserts, the People
acknowledge, and we agree the trial court erred in imposing more
than one five-year enhancement for prior serious felonies not
“brought and tried separately.” We direct the trial court on
remand to strike one of the two prior serious felony convictions in
case No. BA255819.
       As for the remaining prior serious felony enhancement, at
the time of sentencing the court had no discretion “to strike any
prior conviction of a serious felony for purposes of enhancement
of a sentence under Section 667.” (Former § 1385, subd. (b).) On
September 30, 2018, the Governor signed Senate Bill No. 1393
which, effective January 1, 2019, amends sections 667,
subdivision (a) and 1385, subdivision (b) to allow a court to
exercise its discretion to strike or dismiss a prior serious felony



16    Section 667, subdivision (a)(1) provides in relevant part
that “[a]ny person convicted of a serious felony who previously
has been convicted of a serious felony in this state or of any
offense committed in another jurisdiction which includes all of
the elements of any serious felony, shall receive, in addition to
the sentence imposed by the court for the present offense, a five-
year enhancement for each such prior conviction on charges
brought and tried separately. The terms of the present offense
and each enhancement shall run consecutively.”




                                41
conviction for sentencing purposes. (Stats. 2018, ch. 1013,
§§ 1−2.)
      In a supplemental brief, Medina contends he is entitled to
recalculation of his sentence after the statute’s effective date so
the court can exercise its discretion to strike the prior conviction.
We agree, and direct the trial court to consider Medina’s five-year
enhancement on remand. (See People v. Garcia (2018) 28
Cal.App.5th 961, 971−974.) Again, we express no opinion as to
how the court should exercise its discretion on remand.
F.    Errors in the Abstract of Judgment
      Both defendants contend, the People acknowledge, and we
agree the trial court imposed an unauthorized sentence by failing
to stay sentencing on the four counts of assault with a firearm
under section 654. The court ordered counts 5 through 8
“merged” and the abstract of judgment reflects that concurrent
sentences were imposed on those counts. The counts, however, do
not merge nor is a concurrent sentence correct; the sentences on
counts 5 through 8 should have been stayed. (People v. Mesa
(2012) 54 Cal.4th 191, 195.)




                                 42
                      IV. DISPOSITION
       The judgments of conviction and firearm-use and gang
enhancement findings are affirmed. On remand, the trial court
shall recalculate Medina’s sentence to strike one of the five-year
prior serious felony enhancements, determine whether to strike
the remaining prior serious felony enhancement under section
667, subdivision (a)(1) and/or the 20-year firearm-use
enhancement under section 12022.53, subdivision (c), and reduce
the sentence accordingly if appropriate. As to both defendants,
the court shall stay the sentences on counts 5 through 8 for
assault with a firearm under section 654. The court is directed to
prepare new abstracts of judgment for both defendants, and
forward the amended abstracts of judgment to the Department of
Corrections and Rehabilitation.
      CERTIFIED FOR PARTIAL PUBLICATION



                                    WEINGART, J. *

We concur:



      ROTHSCHILD, P. J.



      CHANEY, J.

      *Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                               43
