Filed 9/28/16 On transfer from Supreme Court
                               CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                          DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                    E055062

v.                                                   (Super.Ct.No. FVA900999)

KEANDRE DION WINDFIELD et al.,                       OPINION

        Defendants and Appellants.




        APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,

Judge. Affirmed in part and reversed in part, with directions, and as to Johnson only

remanded for resentencing.

        David P. Lampkin, under appointment by the Court of Appeal, for Defendant and

Appellant KeAndre Windfield.

        Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant

and Appellant Harquan Johnson.

        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and William M.

Wood, Deputy Attorneys General, for Plaintiff and Respondent.


                                               1
       A jury convicted Harquan Johnson (Johnson) and KeAndre Windfield (Windfield)

of first degree murder (Pen. Code, § 187, subd. (a)),1 during which they personally used

and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)) and a

principal personally discharged a firearm causing death (§ 12022.53, subds. (d) & (e)(1)).

The jury further convicted defendants of attempted premeditated and deliberate murder

(§§ 664, 187, subd. (a)), during which they personally used and intentionally discharged a

firearm causing great bodily injury (§ 12022.53, subd. (d)) and a principal used and

intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) &

(e)(1)). As to both offenses, the jury found that defendants committed them for the

benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C)). The jury also convicted

defendants of assault with a semiautomatic firearm (§ 245, subd. (b)), during which they

personally used a firearm (§ 12022.5, subd. (a)) and which they committed for the benefit

of a criminal street gang. Both were sentenced to prison for 90 years to life. They

appealed, claiming the preliminary hearing testimony of a prosecution witness should not

have been admitted into evidence at trial, the evidence was insufficient to support their

convictions of attempted murder, and the jury was misinstructed. Defendants also claim

that the firearm allegation findings as to the attempted murder must be stricken.

       In our original opinion, filed August 19, 2014, we agreed in part and directed that

the jury’s true findings that the defendants personally used a firearm or personally and

intentionally discharged a firearm to be stricken. Both defendants had asserted that the

       1   All further statutory references are to the Penal Code unless otherwise indicated.


                                              2
abstracts of judgment should be corrected and we directed the trial court to correct

Windfield’s, and, upon the resentencing of Johnson, to ensure that his abstract and the

minutes of the hearing correctly reflect the year the crimes were committed and the award

of pretrial custody credit. Each defendant claimed that the sentence imposed upon him,

without consideration of his individual characteristics, is a violation of the prohibition on

cruel and unusual punishment. We disagreed as to Windfield, but agreed as to Johnson.

Therefore, we affirmed Windfield’s judgment except as to corrections we directed the

trial court to make. As to Johnson, we affirmed his convictions and remanded to the

sentencing court for consideration of the factors as set forth in People v. Gutierrez (2014)

58 Cal.4th 1354 (Gutierrez).

       On November 12, 2014, the California Supreme Court denied both defendants’

petitions for review, but, on its own motion, issued a grant-and-hold of review as to

defendant Johnson, for consideration pending review in In re Alatriste, S214652, In re

Bonilla, S214960, and People v. Franklin, S217699. On May 26, 2016, the Supreme

Court issued its decision in People v. Franklin (2016) 63 Cal.4th 261. The Supreme

Court then retransferred this case to our court with directions to vacate our opinion and to

reconsider the juvenile sentencing issue in light of Franklin. Pursuant to that order, we

vacate our original opinion; reaffirm those portions of our original opinion pertaining to

issues not subject to the grant and hold, modify our holding of Windfield’s cruel and

unusual punishment issue, and reconsider Johnson’s sentencing claim in light of

Franklin.



                                              3
                                             FACTS

      Johnson and Windfield were members of the Ramona Blocc Hustla gang. Johnson

and Windfield were close friends. Johnson was easily influenced by Windfield and

Johnson’s gang moniker was Little Bam, while Windfield’s was Bam.

      Months before June 11, 2009, the murder victim’s close friend, MM, had taken the

murder victim to a Ramona Blocc party at a place in Rialto where people buy and use

drugs and hang out, when members of that gang who were cousins of MM beat up and

threatened the murder victim with guns and Windfield sucker punched him.

      On June 11, 2009, the murder victim was with MM and the attempted murder

victim in the same vicinity, which was near an apartment where three females were

spending time together. The attempted murder victim had a “friends with benefits”

relationship with Windfield’s sister at the time. The murder victim was under the

influence and he expressed anger at MM for not intervening on his behalf during the prior

dust up between him, MM’s cousins and Windfield at the party in Rialto. He was also

still angry at MM’s cousins and Windfield, and he said he wanted to “go over . . . and

shoot up Ramona” and “kill those dudes.”

      MM told the murder victim that the latter was drunk, that he was not going to do

the things the murder victim said he wanted to do and MM did not want to fight the

murder victim over this. The murder victim, still angry at MM, took off his sweater,

pulled out a gun and held it down at his side. A van pulled up and parked across the

street. Inside were Windfield’s sister, the owner of the van and her minor children,



                                            4
Johnson, Windfield and other members of Ramona Blocc. The owner of the van lived

with Windfield and his sister. Windfield, then Johnson, got out of the van and

approached the murder victim and MM. The murder victim began chasing Johnson and

Windfield with his gun pointed, taunting Johnson and Windfield as they ran away from

him and accusing them of having jumped him. Windfield’s sister got out of the van and

was yelling concerning the murder victim intending to shoot people in the presence of the

children that were in the van. The murder victim put his gun in Windfield’s sister’s face.

MM and the attempted murder victim told the murder victim that he was tripping and the

murder victim eventually put the gun down at his side. The van took off and the murder

victim, attempted murder victim and MM stood outside the apartment talking.

       In the van on the way to Windfield’s home, Windfield’s sister yelled to Johnson

and Windfield that the murder victim had put a gun in her face and has to die for it.

Windfield said “we” had to handle the murder victim that night. He angrily said that the

murder victim had him running like a little bitch and that made him feel like he was a

punk. When they arrived at Windfield’s home, Johnson and Windfield armed

themselves, borrowed the keys to the van from its owner and left, after Windfield said

that they were returning to the scene of the chase.

       Meanwhile, back at the scene of the chase, the police arrived in response to a call

about a fight, and MM told the murder victim to put his gun away. The murder victim

went into the alley behind the apartment complex, while MM stood next to a woman

named Nikki, who lived nearby, and the attempted murder victim went inside the



                                             5
apartment where the aforementioned three women were. MM told the police that there

had been an argument, but everyone had left. The police then left. The murder victim,

the attempted murder victim and MM came together again outside the apartment. MM

eventually left after hugging the murder victim, leaving the murder victim and the

attempted murder victim outside the apartment, talking. The attempted murder victim

told the murder victim that they needed to leave because the police were there (he feared

the police would double back and return) but the murder victim did not want to leave.

The murder victim said he had to get weed “out of the back” and the attempted murder

victim accompanied him towards the alley behind the apartment complex.

       Nikki was five to six feet away from them and she approached them and said

something, but the attempted murder victim did not hear what she said. As the murder

victim and the attempted murder victim walked through a corridor in the apartment

complex, each was hit by bullets—the attempted murder victim with one, and the murder

victim with 10 to his front and back, including to his head while the gun was being held

to it, several of which shots were fatal. As the attempted murder victim limped away, he

saw Nikki crying and saying, “They killed him.” He went to a car Windfield’s sister had

left nearby earlier for him, and drove it to Windfield’s home so the sister could drive him

to the hospital. When he arrived there, he saw MM.

       Between the time he left the murder victim and the attempted murder victim

outside the apartment and the attempted murder victim arrived at Windfield’s home, MM

had driven to a convenience store, purchased a cigar, then had driven to Windfield’s



                                             6
home, which Ramona Blocc members frequented, arriving there 15 to 20 minutes after

leaving the apartment. MM intended to apologize to Johnson and Windfield for the

murder victim’s actions in chasing them with a gun and to “resolve the matter.” When he

arrived at Windfield’s, the latter said to him, “Sorry, Cuzo, he had to go” and “I mean

he’s gone.” Windfield said he was sorry but he was not the shooter—Johnson was.

When the attempted murder victim subsequently arrived at Windfield’s, MM saw that he

had been wounded in the leg. Windfield told the attempted murder victim that “they”

didn’t mean to shoot the attempted murder victim. On the way to the hospital,

Windfield’s sister asked him if Windfield, then if Johnson, had shot him and he said he

did not know. She then said something about the gun going off once and jamming. She

said she could not believe that the murder victim had put a gun in her face and he has to

die for doing it. When the attempted murder victim arrived at the hospital for treatment,

he lied to the doctors and the police about how he had been injured.

       More facts will be disclosed as they are pertinent to the issues discussed.

                                    ISSUES AND DISCUSSION

       1. Admission of Nikki’s Preliminary Hearing Testimony

       The trial court permitted the prosecutor to introduce into evidence an audio/video

tape of Nikki’s preliminary hearing testimony after concluding that she was unavailable

as a witness, based on its finding that the prosecution had exercised due diligence in

unsuccessfully attempting to locate her and produce her for trial. Defendants here contest

the trial court’s finding of due diligence. We determine de novo whether due diligence



                                             7
was demonstrated. (People v. Bunyard (2009) 45 Cal.4th 836, 851; People v. Cromer

(2001) 24 Cal.4th 889, 892, 893 (Cromer).)

       At the June 2011 due diligence hearing, the prosecution offered the testimony of

an investigator from the district attorney’s office and the case agent. The investigator

testified that her office moved Nikki out of state the day Nikki finished her preliminary

hearing testimony in October 2009. Nikki had disclosed to the investigator her new

address, suggesting that Nikki had chosen it herself, and the investigator had arranged for

Nikki to be transported to that address. Three days later, the investigator called and

confirmed with Nikki that she had arrived there. However, no one called periodically

thereafter to make sure that Nikki was still there.

       In October 2010, the investigator was asked to track Nikki down. At that time, the

investigator ran Nikki through all the available automated systems in California and in

the state where Nikki had been relocated, including the Department of Motor Vehicles,

CLETS and Accurint. The investigator contacted an investigator for the prosecutor’s

office where Nikki had relocated and the latter checked all the addresses the former had

found and rechecked a couple of them two to three weeks later, in October and November

2010. Nikki had not been living at her last known address for 30 days before contact was

made with the manager at the apartment complex where she had lived. The investigator

for the local prosecutor’s office checked with Nikki’s relatives in the area and they had

not seen or heard from Nikki for several weeks prior to the contact. The investigator for

the local prosecutor’s office went to the social service agency that provided money to



                                              8
Nikki while she was living in the place where she had relocated and was informed that

she had failed to appear for her last couple of appointments with the agency and to pick

up funds it had for her.

       In November 2010,2 the investigator called Nikki’s friend, Jasmine, who said that

she had heard from Nikki three weeks before, but had no way to contact Nikki. Jasmine

said that if Nikki contacted her, she would tell Nikki to contact the investigator. The

investigator called Jasmine a second time a few weeks later, but Jasmine reported that she

had not heard from Nikki and had no contact information for her. Jasmine, again, told

the investigator that she would have Nikki call the investigator if Nikki contacted her.

The investigator also called the case agent in November 2010,3 and asked him to contact

her if he heard anything on the street about Nikki’s whereabouts. In January, April and

May 2011, the investigator reran Nikki through the available automated systems in

California and the state to which Nikki had relocated.

       The case agent testified that he did not try to stay in contact with Nikki after she

relocated following the October 2009 preliminary hearing. The prosecutor had asked the

case agent to locate Nikki in 2010, possibly in the fall. Starting in September 2010,4 and

       2In his statement of facts, Windfield reports this hearing occurred in November
2011 and, yet, the hearing occurred in June 2011, according to the record.

       3   See footnote two, ante.

       4  Windfield asserts that the case agent gave conflicting testimony about when his
search began. We do not, however, share that view. When asked if he could relate the
beginning of his search to a particular month, he said it began during the time of the other
trial involving Windfield. In response to a question, he then said he began to talk to the
                                                                  [footnote continued on next page]


                                              9
[footnote continued from previous page]
people mentioned after footnote four in the text of this opinion in January or February of
2010. The same judge presided over both of Windfield’s trials, and the other trial began
in April 2011. The trial court then expressed confusion about the case agent’s reference
to the “other trial” and the agent’s testimony that he began speaking to people about
Nikki in 2010, by asking, “What trial in 2010?” The following colloquy occurred
between the case agent, the trial court and counsel for Johnson,

         “[THE CASE AGENT]: [R]ight after the first trial, when [Nikki]
was . . . relocated, there started to be some issues with where she was at. And at that time
we had started trying to find out where she was because we did not know.”
         “[THE COURT]: There was no other trial except for the one that we had a few
months ago [meaning the April 2011 trial of Canizales and Windfield]. Do you mean
some other court proceeding?
         “[THE CASE AGENT]: Right . . . after the preliminary [hearing] to the first one.
         “[THE COURT]: Okay. So earlier when you spoke about you didn’t start until
the . . . other trial, you didn’t mean the trial we just had a month or two ago [meaning the
trial of Canizales and Windfield].
         “[THE CASE AGENT]: No. After the preliminary hearing . . . [¶] . . . [¶]
         “[COUNSEL FOR JOHNSON]: After the preliminary hearing in [Windfields’s]
prior trial?
         “[CASE AGENT]: Yes.”

       The preliminary hearing in Windfield’s other trial occurred in September 2010. In
her argument to the trial court, the prosecutor said, “As soon as we found out that she
moved, . . . things are not good with [her], then all efforts were made to find her after
that. [¶] . . . [¶] . . . Up until then, we had no reason to believe that [she] . . . was an
ureliable witness.” In its ruling, the trial court found that the case agent “start[ed]
looking . . . he said trial, but he meant prelim—back then . . . .” We doubt that the trial
court was making a finding that the case agent did not begin his search until April 2011.
As Windfield, himself, points out, we defer to the trial court’s determination of historical
facts.
       Windfield also misreads the record by asserting that the case agent testified that he
started looking for Nikki “about three months before he visited [her] aunt” citing page
890 of the reporter’s transcript. On that page, the agent testified that he spent at least
three months talking to local people, and this three-month period preceded his talk with
the aunt, which occurred two weeks before the hearing.
       Citing reporter’s transcript page 894, Windfield asserts that the case agent testified
that he had been looking for Nikki for six or seven months before he visited the aunt. No
such testimony appears on that page.


                                             10
for more than three months, he spoke to 50 or 60 people in Rialto and surrounding

communities who may have known Nikki. Information from these people led the case

agent to believe that Nikki might be local, so he notified the agencies in the areas

surrounding Rialto and he talked to family members, all of whom denied knowing her

whereabouts. Some claimed to have seen Nikki locally within “the last six months or so”

before the hearing.

       Within six or seven months before the hearing, the case agent searched all the

places in San Bernardino and Riverside Counties where people said Nikki would reside

or frequent on a regular basis. Six months before the hearing, the case agent contacted

one of Nikki’s aunts, who lived in San Bernardino, but got no information. On and off

since January 2011, the case agent had checked the Web site, Accurint, and Nikki’s name

came up at several locations linked to family members. The case agent and another

detective went to those locations and staked them out several times to see if they could

determine Nikki’s whereabouts. From three months before the hearing, the case agent

tried just about every day to contact Nikki by telephone and by contacting law

enforcement agencies.

       Approximately two months before the hearing, he put Nikki’s information into the

C.I.I. database, with a flyer, so that if she were stopped by the police, the officer who

stopped her would have the information that Rialto Police Department should be

contacted. The flyer was still active at the time of the hearing. Within the last two weeks

before the hearing, the case agent visited another of Nikki’s aunts and he contacted



                                             11
several other family members who lived locally. The aunt dialed a phone number for

Nikki’s mother and sister in another state and the case agent spoke to them in the

presence of the aunt, but they reported that they had not been in contact with Nikki for

some time. Other information5 led to an apartment complex in the city in Colorado6

where Nikki’s mother and sister lived. Two weeks before the hearing, the case agent

contacted the police in that city and they went to the complex and discovered that Nikki

had moved out of the complex within the last month. The case agent tracked Nikki to a

second other state, because she had been a passenger in a car that had been stopped by

law enforcement. Two weeks before the hearing, the case agent had local law

enforcement go the address of the registered owner of the car, but the owner claimed not

to know Nikki. The trial court ultimately found the case agent’s testimony to be credible.

       The prosecutor represented to the trial court at the hearing that when the district

attorney’s office relocated Nikki in 2009, the district attorney’s office believed they were

on good terms with her and she had no criminal convictions then or at the time of trial.

Because Nikki was in a place where she was surrounded by family members, the


       5 Windfield misreads the record by asserting that the case agent testified first that
he obtained information about the apartment complex from talking on the phone to
Nikki’s mother and sister, then testified that his contact with them was not fruitful.
Actually, the detective testified that “after speaking with [the] sister and mother, . . . [he]
manage[d] to locate . . . further information on [Nikki’s] whereabouts” which led him to
the apartment complex. He never testified that speaking with the mother and sister on the
phone led to his discovery of the apartment complex.

       6 Although during its remarks while ruling on the motion the trial court said that it
had struck the reference to Colorado, the record does not support this.


                                              12
prosecutor believed her office would be able to contact Nikki. The prosecutor also said

that it was her understanding that while the district attorney’s office gave Nikki money so

she could relocate, the office did not pay her rent once she did so. Trial counsel for

Johnson represented that Nikki was unemployed and was on public assistance.

       The defendants correctly point out that due diligence “‘connotes persevering

application, untiring efforts in good earnest, efforts of a substantial character.’

[Citations.] Relevant considerations include ‘“whether the search was timely began’”

[citation], the importance of the witness’s testimony [citation], and whether leads were

competently explored [citation].” (Cromer, supra, 24 Cal. 4th at p. 904.)

       By misconstruing the case agent’s testimony, a matter which we have already

addressed,7 defendants assert that the case agent was aware that Nikki had gone missing

as soon as she was relocated in October 2009. In fact, the agent testified that she had

gone missing at the time of the preliminary hearing in the other case involving Windfield,

which occurred in September 20108 and that was when he began his search for her.

Therefore, the record does not support defendant’s assertion that the search was not

begun in a timely fashion. Although it was a month later that the district attorney’s

investigator began searching for Nikki, the case agent had already begun his search.

       Next, the defendants criticize the case agent for searching for Nikki locally when

he knew she had been relocated to another state. However, the agent testified that

       7   See footnote four, ante, pages 10-11.

       8   See footnote four, ante, pages 9-10.


                                              13
information he gathered led him to believe that Nikki was local and people had told him

that they had seen her in the area within six months before the hearing. This was entirely

consistent with the agent’s testimony that after the preliminary hearing in Windfield’s

other case in September 2010, law enforcement became concerned that Nikki had

disappeared from where she had been relocated. We surmise that if the case agent, upon

receipt of such information, had failed to search for her locally, defendants would have

criticized him for that.

       The defendants also assert that the prosecution is responsible for Nikki’s absence

at the time of trial “because relocating her to another state was surely a primary cause” of

that absence. This is pure speculation. Additionally, defendants cite no authority holding

that when the prosecution relocates a witness, it assumes the burden of keeping track of

that witness. In fact, absent knowledge of a substantial risk that an important witness will

flee, the prosecution has no obligation to take preventative measures to stop that witness

from fleeing. (People v. Wilson (2005) 36 Cal.4th 309, 342.) Defendants contend that

the prosecution could have obtained a hold and/or bond pursuant to section 1332 before

relocating Nikki. However, that section, itself, requires that the court be satisfied by

proof on oath that there is good cause to believe that the material witness will not appear

and testify unless security is required, and there is no evidence that the prosecution had

any reason in October 2009 to believe that Nikki would not be available for trial in 2011

       Defendants also criticize the prosecution for not contacting hospitals and medical

establishments at the place where she was relocated, but we find that checking with the



                                             14
welfare agency that was providing her money was just as good, if not better, than this.

Moreover, given the current status of HIPAA (Health Insurance Portability and Accuracy

Act of 1996), we doubt that it would have been easy for law enforcement to obtain

information about Nikki from medical providers. As to defendants’ suggestion that

clinics and hospitals should have been contacted to determine if the child she was

carrying at the time of the crimes received treatment at any of those facilities, it is clear

that defendants failed to read that portion of the record in which trial counsel for Johnson

informed the court that that child had been taken from Nikki by the local Department of

Children and Family Services and given to the child’s father.

       One of the women in the aforementioned apartment testified at trial that Nikki had

identified Johnson and Windfield as the shooters to her and this woman had told the case

agent the same thing in December 2009. This woman also testified that Nikki had asked

her and the other women in the apartment to lie to the police and say that Nikki was

inside during the shooting. Another woman at the apartment told the case agent that

Nikki didn’t want to be implicated in the shooting, so this woman lied to the first

detective and told him that Nikki was in the apartment at the time of the shooting. A

third woman in the apartment testified that she could have told the case agent that Nikki

had identified Johnson and Windfield as the gunmen. The case agent testified that this

woman told him that Nikki had, indeed, identified Johnson and Windfield as the gunmen

and a copy of the recording of this interview was played for the jury. The jury was

instructed that Nikki’s statements to others were not admitted for the truth of the matters



                                              15
asserted therein, but if the jury believed that she made them, the jury was to use them to

determine if her preliminary hearing testimony was believable.

       MM provided the motive for Johnson and Windfield to retaliate against the murder

victim by testifying that the murder victim had chased them with a gun prior to the

shooting and had put his gun in Windfield’s sister’s face. Although MM did not tell the

first detective who interviewed him this (and he testified to reasons for this), he told the

case agent that after the shooting, Windfield had said that the murder victim “had to go”

and that Johnson had shot him. Similarly, MM testified that Windfield told him that the

murder victim “had to go” and Johnson was the shooter. He also testified that Windfield

had told the attempted murder victim that “they” didn’t mean to shoot him.

       The attempted murder victim also testified, and had previously told the case agent,

that the murder victim had chased Johnson and Windfield with a gun and put it in

Windfield’s sister’s face before the shootings. He told the case agent that Windfield’s

sister had asked him if Windfield and Johnson had shot him, but he told her he did not

know. He also told the case agent that Windfield’s sister was very upset that the murder

victim had put his gun in her face and he had to die for it. He also told the agent that he

was hurt that Windfield’s sister had taken Windfield to the place where the sister

insinuated that Windfield had shot him and the murder victim, although he denied

actually seeing them do it. He told the agent that Windfield’s sister was a proud Ramona

Blocc “wanna be” and could be more dangerous than an actual gang member.




                                             16
       The owner of the van testified that Johnson wore a jacket with the cartoon

character, Sylvester the cat, on it during the chase and before and after the shooting. She

testified that the murder victim chased Johnson and Windfield with a gun and put it in

Windfield’s sister’s face. She also testified that Windfield’s sister said, in the presence of

Johnson and Windfield, that the murder victim had to be killed, and Windfield said that

they had to handle the murder victim that night—that the murder victim had Windfield

“running like a little bitch,” which made Windfield feel like a punk. The van owner

testified that she saw Johnson and Windfield retrieve guns from near Windfield’s home.

She testified that Windfield said he and Johnson were going to return to the scene of the

chase. They got the keys to the van from the owner, got into the van with their guns and

took off. They returned 20 to 30 minutes later and Johnson asked the van owner if she

would take him to the hood of the rival gang, Hustla Squad, where he could drop off the

clothes he had in his hand, so it would seem like that gang killed the murder victim. She

testified that Johnson told her that at the scene of the shooting, he had hopped a wall to

get to the murder victim, Nikki had seen him and asked him if she wanted him to tell the

attempted murder victim to get away from the murder victim, but he just looked at her,

and that Johnson and Windfield ran around to where the murder victim was and started

shooting him. Windfield told the van owner that he used all his bullets on the murder

victim and had shot him more than four times. Johnson showed her how, after the

murder victim fell to the ground, he walked over to the murder victim and shot him in the

face and chest, using two hands. Windfield said they had shot the murder victim because



                                             17
the latter had Windfield running like Windfield was a bitch. Windfield said more than

four times that he shot the murder victim. Windfield asked Johnson if Johnson had shot

the murder victim in the face and Johnson said that he had. Johnson told the van owner

not to tell on him—that she was his “big sister.” With Johnson standing next to him,

Windfield told the attempted murder victim that he was sorry and he didn’t mean to shoot

the latter. Windfield told the van driver that the murder victim had to die and he was

running Windfield “like a bitch.” She accused Johnson’s mother of trying to bribe her

not to testify and of telling her to tell Nikki not to testify or she would have someone kill

Nikki for money.

       Nikki’s preliminary hearing testimony corroborated the story about the murder

victim chasing Johnson and Windfield with the gun. She identified Johnson and

Windfield as the shooters. She testified that Johnson wore a jacket with Sylvester the cat

on it. She said that the final shot to the murder victim was delivered as the end of the gun

rested against his head. She admitted telling the first detective who interviewed her five

or six different stories. She testified that she did not begin making identifications of the

shooters until the first detective who interviewed her threatened to arrest her for child

endangerment for getting drunk two weekends before and for obstructing or delaying a

peace officer. She also admitted being offered relocation and money by the prosecutor’s

office in exchange for her help with the investigation.

       The detective who first interviewed Nikki testified for Johnson that Nikki told him

a number of stories about the shooting. He also testified that Nikki identified Johnson



                                             18
and Windfield as the shooters during the same interview during which she was offered

relocation and she repeated her identification of them during subsequent interviews. She

also said that the attempted murder victim went into the murder victim’s pockets after the

latter had been killed. Although 37 cents was found next to the murder victim’s body, his

pockets had not been turned out.

       The case agent testified for Johnson that Nikki had told the first detective

everything she testified to at the preliminary hearing and more.

       The pathologist who performed the autopsy testified that the bullet wound to the

murder victim’s head was a contact—or near contact—wound and could have been

delivered while the victim was lying on the ground and the barrel of the gun was placed

against his head.

       The prosecution’s gang expert testified that Johnson and Windfield were members

of Ramona Blocc Hustlas, whose primary rival was the Hustla Squad Clicc. The expert

opined that the shootings benefitted Ramona Blocc because they were in retaliation for

the murder victim disrespecting Windfield, who was one of the main heads and most

active member of Ramona Blocc, by chasing him around with a gun. Graffiti near the

crime scene referenced the killing of the murder victim and disrespect to Ramona Blocc.

       While no one could dispute that Nikki was an important witness, she was not a

crucial witness, as the foregoing makes clear, and important portions of her testimony

were corroborated by other witnesses. There was plenty of evidence aside from her

testimony supporting the convictions and she was impeached with the conflicting stories



                                             19
she told, with her effort to get the women in the apartment to lie for her and with the facts

that she was compensated and that the prosecutor ultimately discounted her story that it

was Windfield, and not Johnson, who fired the shots into the murder victim’s body. In

fact, trial counsel for Johnson played portions of Nikki’s preliminary hearing testimony

during his argument to the jury, pointing out how her testimony demonstrated her lack of

credibility or conflicted with other evidence presented at trial. Thus, defendants’

assertion that an extraordinary showing of due diligence was in order because of her

value to the prosecution (see People v. Herrera (2010) 49 Cal.4th 613, 622) must be

rejected.

       2. Insufficiency of the Evidence

       Defendants contend that there was insufficient evidence to support a finding by the

jury that they created a kill zone by firing their guns and the attempted murder victim was

in that zone. During argument to the jury, the prosecutor stated that her theory of

defendants’ guilt for the attempted murder of the attempted murder victim was kill zone.

In connection with this theory, the jury was instructed, “A person may intend to kill a

specific victim and/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

the [attempted murder victim], the People must prove that defendant not only intended to

kill [the murder victim] but also either intended to kill [the attempted murder victim], or

intended to kill everyone within the kill zone. If you have a reasonable doubt whether the

defendant intended to kill [the attempted murder victim] or intended to kill [the murder



                                             20
victim] by killing everyone in the kill zone, then you must find the defendant not guilty

of attempted murder of [the attempted murder victim].”

       In People v. Bland (2002) 28 Cal.4th 313, 328, 329, 330, 333 (Bland), the

California Supreme Court explained the kill zone theory as follows: “ . . . [A defendant]

who shoots at a group of people [can be] punished for the actions towards everyone in the

group even if [the defendant] primarily targeted only one of them . . . . [A defendant]

might . . . be guilty of attempted murder of everyone in the group . . . . [¶] . . . [T]he fact

[that a defendant] desires to kill a particular target does not preclude finding that the

[defendant] also, concurrently, intended to kill others within what it termed the ‘kill

zone.’ ‘The intent is concurrent . . . when the nature and scope of the attack, while

directed at a primary victim, are such that we can conclude [that the defendant] intended

to ensure harm to the primary victim by harming everyone in that victim’s

vicinity. . . . When the defendant escalate[s] his mode of attack from a single bullet

aimed at A’s head to a hail of bullets . . . , the defendant concurrently intended to kill

everyone in A’s immediate vicinity to ensure A’s death. . . . Where the means employed

to commit the crime against a primary victim create a zone of harm around the victim, the

factfinder can reasonably infer that the defendant intended that harm to all who are in

the anticipated zone . . . .’ [Citation.]” (Id. at pp. 328-330.)9

       9  Defendants incorrectly cite People v. Smith (2005) 37 Cal.4th 733 (Smith) as a
kill zone case. It was not. Kill zone instructions were not given in Smith and the
California Supreme Court stated, “We thus have no occasion here to decide under what
factual circumstances, if any, the firing of a single bullet might give rise to multiple
convictions of attempted murder under Bland’s kill zone rationale.” (Id. at p. 746, fn. 3.)
                                                                    [footnote continued on next page]


                                              21
        In People v. Stone (2009) 46 Cal.4th 131 (Stone), the high court said of Bland,

“The evidence supported a jury finding that the defendant intended to kill the driver [of

the car into which he shot] but did not specifically target the two who survived.

[Citation.] . . . We summarized the rule that applies when an intended target is killed and

unintended targets are injured but not killed. . . . [¶] . . . [I]f a person targets one

particular person, . . . a jury could find the person also, concurrently, intended to kill—

and thus was guilty of the attempted murder of—other, nontargeted persons.” (Stone, at

pp. 136-137, some italics original, some added.) In her dissent in Smith, supra, 37

Cal.4th at pages 755 and 756, Justice Werdegar said, “A kill zone . . . analysis . . . focuses

on (1) whether the fact finder can rationally infer from the type and extent of force

employed in the defendant’s attack on the primary target that the defendant intentionally

created a zone of fatal harm, and (2) whether the nontargeted alleged attempted murder

victim inhabited that zone of harm.” (Italics added.)

        In People v. Adams (2008) 169 Cal.App.4th 1009, 1023 (Adams), the Fifth District

said, “[T]he . . . [theory] permits a rational jury to infer the required express malice from

the facts that (1) the defendant targeted a primary victim by intentionally creating a zone

of harm, and (2) the attempted murder victims were within that zone of harm. . . . [It]



[footnote continued from previous page]
Therein, the court held that there was sufficient evidence that the defendant, who fired a
single bullet into a car through the rear window at his former girlfriend, knowing that her
baby was in his line of fire, from a distance of one car length, intended to kill the child,
even though no evidence was presented that he bore any ill will towards the child. (Id. at
pp. 736, 742-743, 746-747.)


                                               22
recognizes that the defendant acted with the specific intent to kill anyone in the zone of

harm with the objective of killing a specific person . . . . [It] imposes attempted murder

liability where the defendant intentionally created a kill zone in order to ensure the

defendant’s primary objective of killing a specific person . . . despite the recognition, or

with the acceptance of the fact, that a natural and probable consequence of that act

would be that anyone within that zone could or would die.” In People v. Campos (2007)

156 Cal.App.4th 1228, 1243, the appellate court held, “[The kill zone theory] . . . is

simply a reasonable inference the jury may draw in a given case . . . .”

       Kill zone victims can include those not seen by the defendant or of which the

defendant is unaware. (Adams, supra, 169 Cal.App.4th at p. 1023; People v. Vang (2001)

87 Cal.App.4th 554, 564 (Vang), cited with approval in Bland, supra, 28 Cal.4th at

p. 330.)

       Defendants assert that there is insufficient evidence to support a kill zone theory

because “[Johnson] and . . . Windfield waited for [the murder victim] to appear, and

when he did appear they fired at close range a number of well-targeted shots designed to

hit and kill only [the murder victim].” That’s defendants’ interpretation of the

evidence—one which does not support the verdict. In examining a record for sufficiency

of the evidence, we do not do this if a reasonable jury could have had another

interpretation—one that supported a kill zone theory (People v. Albillar (2010) 51 Cal.4th

47, 60; People v. Lindberg (2008) 45 Cal.4th 1, 27), and that is the case here.




                                             23
       Moreover, there was no evidence that Johnson and Windfield waited specifically

for the murder victim. Even if they did, that fact would not detract from the

determination whether “the nature and scope of the attack” was such that the jury could

reasonably conclude that they intended to ensure harm to the murder victim by harming

everyone in his vicinity. (See Bland, supra, 28 Cal.4th at pp. 313, 329.)

       We also disagree with defendants’ categorization of the shots as “well-targeted,

designed to hit and kill only [the murder victim]” under the circumstances here. The

attempted murder victim testified that just before the shots began, he and the murder

victim were walking side by side, then he heard the first shot or shots, he told the murder

victim to hold up, then both turned and ran into each other, and while turned, facing each

other, and probably as he was turning, he got shot. Based on this, and his testimony that

when he went down after being shot, he thought the murder victim was still standing and

the latter fell on top of him, it is most likely that he got hit before the murder victim did,

while he and the murder victim were very close to each other. He testified that when the

shooting began, the muzzle flashes were 15 feet from him, but as the shooting progressed

the shooters got within six to eight feet of him. In her preliminary hearing testimony,

Nikki said that when Johnson and Windfield approached the murder victim, the

attempted murder victim was holding him tightly by having one of his arms over the

murder victim’s shoulder10 and after that, while Johnson and Windfield were shooting at


       10She said he was trying to stop the murder victim from going any closer to
where Nikki had warned him the armed defendants were.


                                              24
the murder victim, the attempted murder victim was trying to cover or shield the murder

victim, by standing between him and the defendants, and he moved his body as they

moved, so they couldn’t shoot the murder victim.

       However, “well-targeted” the defendants’ bullets might have been, when another

person is standing very close to the targeted victim or has placed himself between the

shooters and the targeted victim and is acting as a shield for the latter, we cannot imagine

a more appropriate application of the kill zone theory where, despite this, the shooters

shoot, actually hitting that person. Contrary to defendants’ assertion, the fact that the

murder victim was hit with nine bullets (aside from the “coup de gras” to the head) and

the attempted murder victim with only one does not disprove that the attempted murder

victim was in the line of fire.

       It is obvious that the attempted murder victim was either hit before the murder

victim, or collapsed to the ground before the murder victim did. Moreover, defendants’

attack on Nikki’s testimony that clearly established that the attempted murder victim was

in the line of fire because, according to them, she “never gave a reliable description of

precisely where the shooters were positioned when [the murder victim] was shot” is

specious. She described, with great precision, where the attempted murder victim was in

relation to the murder victim and the attempted murder victim’s testimony corroborated

at least part of this description (i.e., he testified that he told the murder victim to hold up

as the first shot or shots were fired and this was consistent with Nikki’s description that

he was holding back the murder victim, and he testified that the two ran into each other as



                                               25
he was hit with the bullet, which was not inconsistent with her perception that he was

shielding the murder victim during the shooting). Moreover, on a sufficiency of the

evidence claim, we do not discount a witness’s testimony unless it is so improbable as to

be unworthy of belief (People v. Thornton (1974) 11 Cal.3d 738, 784, overruled on other

grounds in People v. Flannel (1979) 25 Cal.3d 668, 685, fn. 12), and Nikki’s was not.

        Defendants’ assertion that the method used—a hail of bullets from two different

guns—was insufficient is absurd. Perhaps if the victims had been inside a house and

defendants had used small caliber bullets, they would have an arguable position—but

defendants were mere feet from two unarmed people who were very close to each other,

if not on top of each other. Under these circumstances, the jury could reasonably infer

that defendants “‘used a means to kill the [murder victim] that inevitably would result in

the death of other victims within the zone of danger.’” (Stone, supra, 46 Cal.4th at p.

138.)

        As to the fact that Windfield apologized to the attempted murder victim, saying

they did not intend to shoot him, and therefore the jury could not infer the intent to kill,

the jury was perfectly free to reject this self-serving statement. If, as defendants assert,

they were “being careful not to shoot” the attempted murder victim, they did a lousy job,

taking him down before the murder victim.

        Moreover, we doubt that the defendants in Vang had any particular desire to kill

the daughter of their intended target or to injure his wife, or to do either to his other two

children who were not injured, but, nonetheless were attempted murder victims when the



                                              26
defendants unleashed a hail of bullets at their house due to gang rivalry. (Vang, supra, 87

Cal.App.4th at p. 558.) The same is true of the wounded mother and uninjured siblings

of another intended victim at their apartment. (Ibid.) In response to the defendants’

claim that there was insufficient evidence that they intended to kill anyone except the two

targets, the Court of Appeal held, “Defendants’ argument might have more force if only a

single shot had been fired in the direction of where [the two intended targets] could be

seen.” (Id. at p. 564.)

       In Bland, the California Supreme Court approved the language in Vang that the

fact that the defendants did not see some of their victims “‘who were present and in

harm’s way’” somehow negated the intent to kill them. (Bland, supra, 28 Cal.4th at p.

330.) In Adams, the appellate court similarly upheld convictions of attempted murder

against victims who were not seen by the defendant, but who were placed in danger of

death by his actions. The court reasoned, “[t]he theory imposes attempted murder

liability where the defendant intentionally created a kill zone in order to ensure the

defendant’s primary objective of killing a specific person or persons despite the

recognition, or with acceptance of the fact, that a natural and probable consequence of

that act would be that anyone within that zone could or would die.” (Adams, supra, 169

Cal.App.4th at p. 1023.)

       As stated before, the kill zone theory permits a jury to reasonably infer the intent

to kill based on the nature and scope of the attack. The defendant’s particular feelings

towards the nontarget attempted murder victim—whether good, bad, indifferent or



                                             27
nonexistent, has nothing to do with it, if the defendant created the kill zone and the

attempted murder victim was in it. This case involved not only Bland’s “hail of bullets,”

but at very close range.

       Although defendants did not mention People v. McCloud (2012) 211 Cal.App.4th

788 (McCloud) until Windfield’s reply brief, when the People had no opportunity to

address it, we shall do so anyway. McCloud begins its discussion of the kill zone theory

by citing language in Smith, supra, 37 Cal.4th at page 733, about that theory. Smith,

however, is not a kill zone case, so anything said about the theory therein is dicta.

(Accord, Adams, supra, 169 Cal.App.4th at pp. 1009, 1022.) Moreover, Smith

interpreted the reasoning in Bland, which we have extensively quoted above, to mean that

“a shooter may be convicted of multiple counts of attempted murder on the ‘kill zone’

theory where the evidence establishes that the shooter used lethal force designed and

intended to kill everyone in an area around the targeted victim . . . as the means of

accomplishing the killing of that victim.

       Under such circumstances, a rational jury could conclude beyond a reasonable

doubt that the shooter intended to kill not only his targeted victim, but also all others he

knew were in the zone of fatal harm.” (Smith, at pp. 745-746.) At the same time, the

Smith court quoted Bland’s language that, “‘[The kill zone theory] 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.’ [Citation.]” (Smith, at p. 746.)




                                              28
       Based on this language, and with no further citation to any precedent, McCloud

states, “The kill zone theory thus does not apply if the evidence shows only that the

defendant intended to kill a particular targeted individual but attacked that individual in a

manner that subjected other nearby individuals to a risk of fatal injury. Nor does the kill

zone theory apply if the evidence merely shows, in addition, that the defendant was aware

of the lethal risk to the nontargeted individuals and did not care whether they were killed

in the course of the attack on the targeted individual. Rather, the kill zone theory applies

only if the evidence shows that the defendant tried to kill the targeted individual by

killing everyone in the area in which the targeted individual was located. The defendant

in a kill zone case chooses to kill everyone in a particular area as a means of killing a

targeted individual within that area. In effect, the defendant reasons that he cannot miss

his intended target if he kills everyone in the area in which the target is located.

[¶] . . . [T]he defendant specifically intends that everyone in the kill zone die. If some of

those individuals manage to survive the attack, then the defendant—having specifically

intended to kill every single one of them and having committed a direct but ineffectual

act toward accomplishing that result—can be convicted of attempted murder.”

(McCloud, supra, 211 Cal.App.4th at p. 798.)

       In our view, McCloud goes too far. The language in Bland, cited above, posits

that the intent to kill the nontargeted person(s) can be inferred from the nature and scope

of the attack or from the method employed. If, as McCloud asserts, the defendant must in




                                              29
fact intend to kill each attempted murder victim, there is no reason to employ the

theory—the intent to kill is established without resort to the theory.

       That McCloud overstates the theory is proven by language in other California

Supreme Court opinions. As we have already stated, in Stone, supra, 46 Cal.4th at pages

131, 136, and 137, the high court said of Bland, “The evidence supported a jury finding

that the defendant intended to kill the driver [of the car into which he shot] but did not

specifically target the two who survived. [Citation.] . . . We summarized the rule that

applies when an intended target is killed and unintended targets are injured but not

killed. . . . [¶] . . . [I]f a person targets one particular person, . . . a jury could find the

person also, concurrently, intended to kill—and thus was guilty of the attempted murder

of—other, nontargeted persons.” (Some italics original, some added.) As we have

already stated, in her dissent in Smith, supra, 37 Cal.4th at pages 755 and 756, Justice

Werdegar said, “A kill zone . . . analysis . . . focuses on (1) whether the fact finder can

rationally infer from the type and extent of force employed in the defendant’s attack on

the primary target that the defendant intentionally created a zone of fatal harm, and (2)

whether the nontargeted alleged attempted murder victim inhabited that zone of harm.”

(Italics added.)

       Language in opinions of the Court of Appeal also suggest that McCloud misstates

the kill zone theory. As already stated, in Adams, supra, 169 Cal.App.4th at page 1023,

the Fifth District said, “[T]he . . . [theory] permits a rational jury to infer the required

express malice from the facts that (1) the defendant targeted a primary victim by



                                                30
intentionally creating a zone of harm, and (2) the attempted murder victims were within

that zone of harm. [It] recognizes that the defendant acted with the specific intent to kill

anyone in the zone of harm with the objective of killing a specific person . . . . [It]

imposes attempted murder liability where the defendant intentionally created a kill zone

in order to ensure the defendant’s primary objective of killing a specific

person . . . despite the recognition, or with the acceptance of the fact, that . . . a natural

and probable consequence of that act would be that anyone within the zone could or

would die.” In People v. Campo, supra, 156 Cal.App.4th at page 1243, the appellate

court held, “The [kill zone] theory . . . is simply a reasonable inference the jury may draw

in a given case . . . .”

       Moreover, McCloud’s restrictive view of the kill zone theory cannot possibly be

reconciled with the holding of two different appellate courts, and the approval by the

California Supreme Court of one of those holdings, that kill zone victims can include

those not seen by the defendant or of which the defendant is unaware. (See text at p. 24.)

       3. Jury Instruction Error

               a. Provocation as to the Attempted Murder

       In connection with the charged murder, the jury was instructed, in accordance with

CALCRIM No. 522, “Provocation may reduce a murder from first degree to second

degree and may reduce a murder to manslaughter. The weight and significance of the

provocation, if any, are for you to decide. [¶] If you conclude that the defendant

committed murder but was provoked, consider the provocation in deciding whether the



                                               31
crime was first or second degree murder. Also, consider the provocation in deciding

whether the defendant committed murder or manslaughter.”

        The jury was also given the standard instruction on the heat of passion/provocation

theory of voluntary manslaughter, which imposes an objective standard on the

reasonableness of the provocation, while CALCRIM No. 522 does not. (See People v.

Valentine (1946) 28 Cal.2d 121, 132, People v. Fitzpatrick (1992) 2 Cal.App.4th 1285,

1295, 1296 and People v. Padilla (2002) 103 Cal.App.4th 675, 678.)

        As to the charged attempted murder, the jury was instructed on the requirements of

the finding that it was premeditated and deliberate. The jury was also instructed on

attempted heat of passion/provocation voluntary manslaughter, which imposes an

objective standard on the reasonableness of defendant’s reaction to the provocation.

        Defendants here claim that the trial court’s failure, sua sponte, to give an

instruction as to the charged attempted murder similar to CALCRIM No. 522 requires

reversal of the findings that it was premeditated and deliberate. At the same time, they

recognize that two California Supreme Court decisions have held that there is no sua

sponte duty to give CALCRIM No. 522. (People v. Rogers (2006) 39 Cal.4th 826, 877-

880; People v. Middleton (1997) 52 Cal.App.4th 19, 31-33, [disapproved on other

grounds in People v. Gonzales (2003) 31 Cal.4th 745, 752.) Of course, we are bound by

Supreme Court decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d

450.)




                                              32
       As a fall-back, defendants claim that their trial counsels’ failure to request a

CALCRIM No. 522-like instruction as to the charged attempted murder constitutes

incompetency of counsel. In order to prevail, they must demonstrate a reasonable

probability that, but for the failure to request this instruction, the outcome of this trial

would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 691-694,

697-698.) That probability must be sufficient to undermine confidence in the verdicts.

(People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)

       However, defendants cannot carry their burden. In convicting them of first degree

murder, the jury necessarily rejected the possibility that any provocation that existed

reduced the first degree murder to second degree murder. This is true for either theory of

first degree murder that was available to the jurors, whether premeditated and deliberate

or lying in wait, as the latter, the jury was instructed, required “a state of mind equivalent

to deliberation or premeditation.” Because the murder and the attempted murder were

committed simultaneously, by the same acts and under the same circumstances and were

interconnected by the use of the kill zone theory as to the latter, there was no basis for the

jury to conclude that some provocation reduced the attempted murder to nondeliberate,

nonpremeditated attempted murder, but did not reduce the murder to second degree

murder.

       4. Gun Allegations as to the Attempted Murder

       The first amended information, filed April 1, 2010, was the first charging

document in this case to allege that defendants had attempted to murder the attempted



                                               33
murder victim. It alleged, in connection with the charged attempted murder, that

defendants had personally and intentionally discharged a firearm which caused great

bodily injury and death to the attempted murder victim within the meaning of section

12022.53, subdivision (d). It also alleged that a principal personally and intentionally

discharged a firearm, proximately causing great bodily injury and death to the attempted

murder victim, pursuant to section 12022.53, subdivisions (d) and (e)(1). Defendants

were arraigned on this charging document while represented by counsel.

       On June 1, 2011, during voir dire, the trial court read the information to the

prospective jurors, omitting any references to causing death to the attempted murder

victim. On June 7, 2011, the seventh day of trial, when voir dire was still occurring, the

prosecutor told the trial court that she would be omitting from the charging document the

great bodily injury to the attempted murder victim allegation, pursuant to section 12022.7

and count 4,11 and would be adding the allegation that the attempted murder was willful,

premeditated and deliberate. She said she would be filing an amended information to

reflect these changes. The following day, the prosecutor filed what was entitled the third

amended information, although our review of the record before this court and the superior

court record shows that no second amended information was ever filed. The so-called

third amended information alleged, in connection with the charged attempted murder,

that Johnson and Windfield “personally and intentionally discharged a firearm . . . ,


       11 It had been the substantive crime of associating with a gang. This count had
not been read to the jury.


                                             34
which caused death to [the murder victim] within the meaning of Penal Code section

12022.53[, subdivision] (d) . . . .” It also alleged as to this count that “a principal

personally and intentionally discharged a firearm . . . , which proximately caused death to

[the murder victim] within the meaning of Penal Code sections 12022.53[, subdivisions]

(d) and (e)(1).” It also alleged that the attempted murder had been committed for the

benefit of a gang. Finally, it alleged that the victim of this count was the murder victim.

The prosecutor’s opening statement is not part of the record before this court.

       During arguments to the jury, on July 15, 2011, the prosecutor told the trial court

that she wanted to make sure, by interlineations, that count 2 in the so-called third

amended information “reflect[ed the attempted murder victim].” The trial court said it

would make that order. Although no such interlineations appear in the record before this

court, we will deem the so-called third amended information to have been amended to

substitute the attempted murder victim’s name in place of the murder victim’s as to this

count and the allegations to read that great bodily injury, not death, was caused to the

attempted murder victim. Defendants’ assertion that the amendment affected only the

name of the victim and not the enhancement allegations, exalts form over substance,

especially in light of the fact that the parties went to trial with a charging document that

for almost 15 months before it was incorrectly amended, set forth enhancement

allegations under section 12022.53, subdivisions (d) and (e)(1), specifying that the

attempted murder was the subject of these allegations. Under the circumstances,

defendants can hardly claim that they were unaware that they were going to trial on these



                                              35
allegations. Additionally, neither defendant objected to the verdict forms, which will be

described below.

       When the jury returned its verdicts, it found, in connection with the attempted

murder, that both defendants had personally used a firearm, personally used and

intentionally discharged a firearm, and personally used and intentionally discharged a

firearm, proximately causing great bodily injury to the attempted murder victim. The

jury also found, in connection with the attempted murder, as to both defendants, that a

principal used a firearm, a principal used and intentionally discharged a firearm and a

principal used and intentionally discharged a firearm proximately causing great bodily

injury to the attempted murder victim.

       Section 12022.53, subdivision (d), as is pertinent to this count, provides a 25-year-

to-life term for a defendant who personally and intentionally discharges a firearm

proximately causing great bodily injury during an attempted murder. Section 12022.53,

subdivision (e)(i) applies to the enhancements provided in subdivision (b) (which is a 10-

year enhancement when any other principal personally uses a firearm), subdivision (c)

(which is a 20-year enhancement when any other principal personally and intentionally

discharges a firearm), and subdivision (d), (which is a 25-year-to-life term for any

principal when any other principal personally and intentionally discharges a firearm

proximately causing great bodily injury) when that person committed the crime for the

benefit of a street gang.




                                            36
       In making findings that defendants personally used and another principal

personally used a firearm and personally used and intentionally discharged a firearm, the

jury was making findings pursuant to section 12022.53, subdivisions (b) and (c).

Defendants point out that subdivision (j) of section 12022.53 provides that for the

penalties provided in that section to apply, any fact required under subdivision (b), (c) or

(d) must be alleged in the accusatory pleading. As to both defendants, the sentencing

court imposed a term of 25 years to life, which had to have been pursuant to section

12022.53, subdivision (d). Therefore, the penalty under subdivision (d) did apply

because the information alleged the necessary facts, i.e., that defendants personally and

intentionally discharged a firearm causing great bodily injury and another principal

personally and intentionally discharged a firearm causing great bodily injury where the

crime was committed for the benefit of a gang. The jury should not have made findings

that defendants and a principal personally used a firearm or personally and intentionally

discharged a firearm, but since no penalty was imposed as to those findings, there was no

violation of subdivision (j). However, we will direct the trial court to strike from the

jury’s findings12 any references to them.

       4. Sentencing

               a. Windfield’s Sentence as Cruel and Unusual

       Windfield was sentenced in this case to three 25-year-to-life terms, plus a life term

with a 15-year minimum which was run concurrently with the time imposed in another

       12   These findings are not reflected in the minutes of the court.


                                              37
case of two 25-year-to-life terms, two 15-year-to-life terms plus 40 years. Windfield

contends that this sentence violates Miller v. Alabama (2012) 567 U.S.___ [132 S.Ct.

2455] (Miller).

       Windfield was 18 years old when he committed the crimes in both cases and 21

when he was sentenced for both. He points out that his minimum parole eligibility

extends beyond any life expectancy he could possibly have. In Miller, the United States

Supreme Court held “that mandatory life without parole for those under the age of 18 at

the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and

unusual punishments.’” (Miller, supra, 567 U.S. ___ [132 S.Ct. at p. 2460].) The high

court noted, “Because juveniles have diminished culpability and greater prospects for

reform, . . . ‘they are less deserving of the most severe punishments.’

[Citation.] . . . [C]hildren have a “‘lack of maturity and an underdeveloped sense of

responsibility,’” leading to recklessness, impulsivity, and heedless risk-taking.

[Citation.] . . . [They] ‘are more vulnerable . . . to negative influences and outside

pressures,’ including from their family and peers; they have limited ‘contro[l] over their

own environment’ and lack the ability to extricate themselves from horrific, crime-

producing settings. [Citation.] . . . [A] child’s character is not as ‘well formed’ as an

adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of

irretrievabl[e] deprav[ity].’ [Citation.] [¶] . . . [¶] . . . [T]he distinctive attributes of

youth diminish the penological justifications for imposing the harshest sentences on

juvenile offenders, even when they commit terrible crimes. Because “‘[t]he heart of the



                                               38
retribution rationale’” relates to an offender’s blameworthiness, “‘the case for retribution

is not as strong with a minor as with an adult.’” [Citations.] Nor can deterrence do the

work in this context, because “‘the same characteristics that render juveniles less culpable

than adults’”—their immaturity, recklessness, and impetuosity—make them less likely to

consider potential punishment. [Citations.] Similarly, incapacitation could not support

the life-without-parole sentence . . . . Deciding that a ‘juvenile offender forever will be a

danger to society’ would require ‘mak[ing] a judgment that [he] is incorrigible’—but

“‘incorrigibility is inconsistent with youth.’” [Citations.] And for the same reason,

rehabilitation could not justify that sentence. Life without parole ‘forswears altogether

the rehabilitative ideal.’ [Citation.] It reflects ‘an irrevocable judgment about [an

offender’s] value and place in society,’ at odds with a child’s capacity for change.

[Citation.] [¶] . . . [¶] . . . [T]he characteristics of youth, and the way they weaken

rationales for punishment, can render a life-without-parole sentence disproportionate.

[Citation.] . . . ‘[C]riminal procedure laws that fail to take defendants’ youthfulness into

account would be flawed.’ [Citation.] . . . [¶] [T]he mandatory penalty schemes at issue

here prevent the sentencer from taking account of these central considerations. By

removing youth from the balance—by subjecting a juvenile to the same life-without-

parole sentence applicable to an adult—these laws prohibit a sentencing authority from

assessing whether the law’s harshest term of imprisonment proportionally punishes a

juvenile offender. . . . [¶] . . . Imprisoning an offender until he dies alters the remainder

of his life ‘by a forfeiture that is irrevocable.’ [Citations.]” (Id. at pp.___[132 S.Ct. at



                                              39
pp. 2464-2466.] “Mandatory life without parole for a juvenile precludes consideration of

his chronological age and its hallmark features—among them, immaturity, impetuosity,

and failure to appreciate risks and consequences. It prevents taking into account the

family and home environment that surrounds him—and from which he cannot usually

extricate himself . . . . It neglects the circumstances of the homicide . . . , including the

extent of his participation in the conduct and the way familial and peer pressures may

have affected him. Indeed, it ignores that he might have been charged and convicted of a

lesser offense if not for incompetencies associated with youth—for example, his inability

to deal with police officers or prosecutors . . . or his incapacity to assist his own

attorneys. [Citations.] And finally, this mandatory punishment disregards the possibility

of rehabilitation even when the circumstances most suggest it.” (Id. at p.___[132 S.Ct. at

p. 2468.] “Our decision . . . mandates only that a sentencer follow a certain process—

considering an offender’s youth and attendant characteristics—before imposing a

particular penalty.” (Id. at p.___ [132 S.Ct. at p. 2471].)

       Windfield contends that scientific literature shows that the features of juveniles

discussed in Miller extend to 18 year olds. However, we are bound by precedent and

there is no precedent for us to declare that Miller applies to 18 year olds. Our legislature

has determined that 18 is the age at which a person is considered an adult. (People v.

Gamache (2010) 48 Cal.4th 347, 405.)

       In People v. Argeta (2012) 210 Cal.App.4th 1478, 1482 (Argeta), the appellate

court rejected an identical argument, holding, “while ‘[d]rawing the line at 18 years of



                                              40
age is subject . . . to the objections always raised against categorical rules . . . [, it] is the

point where society draws the line for many purposes between childhood and adulthood.’

[Citations.] Making an exception for a defendant who committed a crime just five

months past his 18th birthday opens the door for the next defendant who is only six

months into adulthood. Such arguments would have no logical end, and so a line must be

drawn at some point. We respect the line our society has drawn and which the United

States Supreme Court has relied on for sentencing purposes, and conclude [that the

defendant’s] sentence is not cruel and/or unusual under Graham [v. Florida (2010) 560

U.S. 48 [130 S.Ct. 2011]], Miller, supra, 567 U.S. ___[132 S.Ct. 2455], or [People v.]

Caballero [(2012) 55 Cal.4th 262].”

       Recently, in Gutierrez, supra, 58 Cal.4th at page 1380, the California Supreme

Court endorsed the distinction drawn between those under the age of 18 at the time of the

crime and those 18 or older. Notwithstanding the stated judicial policy, section 3051,

added in 2013 pursuant to Senate Bill 260, and amended in 2015 (effective in 2016)

pursuant to Senate Bill 261, entitles a prisoner serving a term of 25 years to life to a

Youth Offender Parole hearing in the 25th year of his incarceration, if the offender was

under the age of 23 at the time of his offense. (§ 3051, subd. (b)(3).) Thus, Windfield’s

sentencing claim is moot.

               b. Johnsons’s Sentence as Cruel and Unusual

       Johnson, who was 17 when he committed these crimes, also received a sentence of

90 years to life. As he correctly points out, the California Supreme Court has held that a



                                                41
sentence of 110 years to life is the functional equivalent of a sentence of life without

parole. (People v. Caballero (2012) 55 Cal.4th 262, 295 (Caballero); see also People v.

Mendez (2010) 188 Cal.App.4th 47, 63 [a sentence of 84 years to life is the same];Argeta,

supra, 210 Cal.App.4th at p. 1482 [a term of at least 75 years in prison for a defendant

who was 15 years old at the time of the crime “likely requires that he be in prison for the

rest of his life”].) Johnson also correctly points out that the sentencing court imposed

sentence without individualized consideration of him as a person.

       In our original opinion, we agreed that Johnson was entitled to resentencing. The

Supreme Court granted review on its own motion as to this particular issue, and,

following the issuance of its recent opinion in People v. Franklin, supra, 63 Cal.4th 261,

retransferred the case to our court for reconsideration in light of Franklin. We reaffirm

our holding that Johnson is entitled to a hearing in the superior court pursuant to

Franklin.

       As we further noted in our original opinion, we commented that there was no

sentencing memorandum submitted by counsel for Johnson,13 the probation report

contained scant information about Johnson personally and neither counsel for Johnson

nor the sentencing court addressed this topic during sentencing. While we recognize that

       13  At the hearing on Johnson’s motion for a new trial, on the day of sentencing,
Johnson’s trial counsel explained that he had not served the prosecutor with a copy of his
motion until earlier that day because he had just finished his last trial of a “non-stop”
series of trials that had consumed the entire previous six months, the prior week and he
had been “backed up” and had a “heavy calendar” since then, comprised of preliminary
hearings.



                                             42
Johnson did not object below to the imposition of this sentence, certainly, an argument

could be made that the failure to invoke Graham v. Florida (2010) 560 U.S. 48 [130

S.Ct. 2011] on Johnson’s behalf could amount to incompetency of trial counsel.14

       At the same time, the mandatory aspect of Johnson’s sentence was 50 years to life,

and that the trial court exercised its discretion, citing the fact that the crimes involved

different victims in order to impose consecutive terms for the murder and attempted

murder.

       By its express terms, a sentence of 50 years to life is not the functional equivalent

of an LWOP term because the defendant is now eligible for a Youthful Parole Hearing in

his 25th year of incarceration. (People v. Franklin, supra, 63 Cal.4th at pp. 279-280.)

The enactment of Senate Bill 260 had the effect of superseding the mandated sentences of

persons who were under the age of 23 at the time of their offense, “explicitly to bring




       14   To avoid such an argument, we will not rely on the forfeiture rule (People v.
Bradford (1997) 15 Cal.4th 1229, 1314) and will address Johnson’s argument on its
merits.
         Confronted with the same rule in Gutierrez, supra, 58 Cal.4th at pages 1354, 1368,
the California Supreme Court noted, “[Although a]t sentencing, Gutierrez did
not . . . mention the Eighth Amendment, this is unsurprising because at the time the
[United States Supreme Court] had not yet granted review in Miller and no court had
even held that a mandatory sentence of life without parole for juveniles convicted of
homicide was unconstitutional. After Miller was decided, Gutierrez promptly asserted
his Eighth Amendment claim in the Court of Appeal, . . . and he now reasserts that claim
in this court. Given these circumstances, and because his Eighth Amendment challenge
involves a question of law, we exercise our discretion to consider it here. [Citation.]”
We note that, like in Gutierrez, Miller had not been decided at the time Johnson was
sentenced, and Johnson is asserting his Eighth Amendment right in this court. (See also,
fn. 13, ante, p. 42.)


                                              43
juvenile sentencing into conformity with Graham, Miller, and Caballero.” (People v.

Franklin, supra,, 63 Cal.4th at p. 277.)

       Miller held that it is a violation of the Eighth Amendment to impose a mandatory

life without parole sentence upon a juvenile in a homicide case because such a penalty

“precludes consideration of [the juvenile’s] chronological age and its hallmark features—

among them, immaturity, impetuosity, and failure to appreciate risks and consequences.

Nevertheless, defendant will be eligible for a parole hearing after serving 25 years of his

sentence. (§ 3051, subd. (b)(3).) This renders moot defendant’s claim that his sentence

violates the Eighth Amendment. (Franklin, supra, 63 Cal.4th at pp. 279-280.)

       Nevertheless, at any parole hearing the Board of Parole Hearings is required to

give “great weight to the diminished culpability of juveniles as compared to adults, the

hallmark features of youth, and any subsequent growth and increased maturity of the

prisoner in accordance with relevant case law.” (§ 4801, subd. (c).) As the Supreme

Court observed in Franklin, the statutes contemplate that information regarding the

juvenile offender’s characteristics and circumstances at the time of the offense will be

available at a youth offender parole hearing to facilitate the Board’s consideration.

(People v. Franklin, supra, 63 Cal.4th at p. 283.)

       In Franklin, because it was unclear whether the defendant had sufficient

opportunity to put on the record the kinds of information that sections 3051 and 4801

deem relevant at a youth offender parole hearing, the Supreme Court held that he was not

entitled to be resentenced, but it remanded the matter to the lower court for a



                                             44
determination of whether Franklin was afforded sufficient opportunity to make a record

of information relevant to his eventual youth offender parole hearing. (People v.

Franklin, supra, 63 Cal.4th at p. 284.)

       The same result is appropriate here. While defendant is not entitled to be

resentenced, he is entitled to an opportunity to make a record of matters that may be

relevant at his eventual youth offender parole hearing, and the prosecution likewise may

put on the record any evidence that demonstrates the juvenile offender’s culpability or

cognitive maturity, or otherwise bears on the influence of youth-related factors.

(Franklin, supra, 63 Cal.4th at p. 284.)

              c. Correction of the Abstracts of Judgment

       Defendants correctly point out that their abstracts incorrectly state that the dates of

the offenses were 2011, when they were 2009. We will direct the trial court to correct

Windfield’s and, when Johnson is resentenced, to correctly note the date in his abstract.

              d. Pronouncement of Sentence on Johnson

       Because we are remanding Johnson’s case for a hearing pursuant to People v.

Franklin, supra, we need not address his assertion that the trial court did not actually

sentence him, although it clearly did.

       Next, Johnson claims the sentencing court did not specify as to which

enhancement it was imposing the 25-year-to-life term. The final charging document

stated that the enhancement allegation that Johnson personally discharged a firearm

causing death to the murder victim was brought pursuant to section 12022.53, subdivision



                                             45
(d) and the allegation that a principal personally discharged a firearm proximately

causing death to the murder victim was brought pursuant to section 12022.53,

subdivisions (d) and (e). The enhancement allegation that Johnson personally discharged

a firearm causing great bodily injury to the attempted murder victim, after amendment 15

was brought pursuant to section 12022.53, subdivision (d) and the allegation that a

principal personally discharged a firearm which proximately caused great bodily injury to

the attempted murder victim, after amendment16 was brought pursuant to section

12022.53, subdivisions (d) and (e). About two weeks after it had pronounced sentence,

the court, without appearances from any of the parties, but apparently upon the request of

someone, sought to, what it termed “address” matters not addressed due to “clerical

error” and specified that it was imposing the 25-year- to-life enhancement under

“12022.53(d)/e(1)” and “strik[ing] the separate . . . 12022.53(d) enhancement.”

       Johnson here contends that what the court did was not correct a clerical error, but

declare something done which was not done. We disagree. Section 12022.53,

subdivision (f) permits the imposition of only one enhancement under section 12022.53,

subdivisions (d) or (e)(1) “for each crime.” The court, when it originally imposed

sentence, did exactly that. It just failed to state which of the two identical 25-year-to-life

terms it was imposing. It did so less than two weeks later. Johnson has nothing about

which to complain.

       15   See pages 33 through 35, ante.

       16   See pages 33 through 35, ante.


                                              46
              e. Custody Credits for Johnson

       The parties agree that the sentencing court shorted Johnson by one day in its

calculation of his presentence custody credits. When Johnson is resentenced, the court

below should take note of this fact and award him an additional day.

                                            DISPOSITION

       The convictions for both Johnson and Windfield’s sentence are affirmed, with the

exception that the trial court is directed to strike from the jury’s true findings any

references to the defendants or principals personally using a firearm or personally and

intentionally discharging a firearm. The trial court is directed to amend Windfield’s

abstract of judgment to show that the crimes were committed in 2009, not 2011, as his

abstract currently states. Upon further proceedings relating to Johnson, the trial court is

directed to correctly note in his abstract the date of commission of the crimes and the

awarding of an additional day of presentence custody credits, the latter of which should

also be reflected in the minutes of the court. Johnson’s case is remanded for the limited




                                              47
purpose of determining whether he was afforded an adequate opportunity to make a

record of information that will be relevant to the Board as it fulfills its statutory

obligations under sections 3051 and 4801 as required by Franklin, supra, 63 Cal.4th at

pages 286-287.

       CERTIFIED FOR PUBLICATION
                                                                  RAMIREZ
                                                                                        P. J.


We concur:

MILLER
                           J.

CODRINGTON
                           J.




                                              48
