Filed 2/24/15 P. v. White CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION SEVEN


THE PEOPLE,                                                          B253410

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA057059)
         v.

MARCHELL MYKEON WHITE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen
Blanchard, Judge. Affirmed in part, and reversed in part with directions.
         Leslie Conrad, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Stephanie A. Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.


                                         ________________________
                                       INTRODUCTION


           Marchell Mykeon White was convicted by a jury on count 1 of the second degree
murder of Terry Jones (Pen. Code,1 § 187, subd. (a)), with special findings that he
personally used a firearm (§ 12022.53, subd. (b)), personally and intentionally discharged
a firearm (§ 12022.53, subd. (c)), and personally and intentionally discharged a firearm
causing great bodily injury and death (§ 12022.53, subd. (d)). The jury also convicted
White on count 2 of attempted voluntary manslaughter of Ena Bourne (§§ 192, subd. (a),
664), with a special finding that he personally used a firearm (§ 12022.5, subd. (a)). The
jury found a gang allegation (§ 186.22, subd. (b)) not to be true.
           The court found true the allegation that White had a prior conviction for a violent
or serious felony under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)), one prior serious felony conviction within the meaning of section 667,
subdivision (a)(1), and one prior prison term within the meaning of section 667.5,
subdivision (b). The court sentenced White to an aggregate state prison term of 71 years
to life.
           On appeal, White contends he should not have been convicted of the attempted
voluntary manslaughter of Bourne because there was insufficient evidence to prove he
had the specific intent to kill. At issue in this case is whether there was sufficient
evidence to support the jury’s finding that White intended to kill Bourne under a “kill
zone” or other attempted murder theory. White also argues, and the People do not
dispute, that the court improperly imposed a five-year enhancement for use of a firearm
on count 2 under section 12022.5, subdivision (a).
           We affirm the conviction, but remand for resentencing on count 2.




1          All statutory references are to the Penal Code.


                                                 2
                     FACTUAL AND PROCEDURAL BACKGROUND


A. Testimony at Trial2
       1. The Prosecution’s Witnesses
               a. Shooting of Jones
       On June 28, 2012, Los Angeles County Sheriff’s Department Deputy Jason
Godecke responded to a shooting call at the Beechwood Apartments in Lancaster
between 10:00 and 10:15 p.m. He saw a large crowd gathering in the area between the
office building for the apartment complex and apartment building 25. He estimated there
were “60 plus” people in the crowd. He saw Jones lying on the ground in a pool of
blood. Godecke checked Jones for a pulse but did not feel one, and at some point Jones
was declared dead.
       Dahji Reed was the principal witness for the prosecution. Reed testified that on
June 28, 2012, she was visiting her grandmother at the Beechwood Apartments. Jones3
was her cousin, and that night he was also at the apartment complex. Reed knew White
by the name “Hand.”
       Reed was in her friend’s apartment when she overheard an argument, and went
outside to see what was happening. She testified that there was “a lot of commotion
because it was a lot of men outside.” Reed heard Jones and White arguing, and White
said, “Blood let’s go to the back.” She followed the two men and the crowd to the back
of the fire lane.4
       Reed could see Jones and White at the end of the fire lane, but could not hear what
they were saying. Many other people were around them. Jones and White started

2      White waived his right to counsel, and represented himself at trial.
3      Some witnesses referred to Jones as “T.J.”
4     The prosecutor played the videotape of the incident for the jury as Reed testified.
The videotape shows the crowd gathering in the back of the apartments, Jones falling
down, and then the crowd running.


                                             3
throwing punches at one another. On the photograph of the apartment complex marked
as Exhibit 2, Reed described the area where the fight took place as between buildings 14
and 25.5 Reed heard Jones say he was “gonna knock [White] out and beat [his] ass.”
The punching lasted three minutes. Reed described the crowd around White and Jones as
“pumping up the fight.” The court asked whether this meant that the crowd was “[k]ind
of egging everybody on?” Reed responded, “Basically.”
       Reed then saw White pull a .38 special revolver out of his right pocket.6 She
heard White say, “I’m not fighting no more. I’m killing niggers.”7 Reed testified that
she saw White shoot at Jones, who was unarmed. The first shot hit Jones, but Jones kept
running down the cement walkway. It was “probably . . . after the third shot,” when
Jones fell. Reed heard “[m]aybe five” shots.8 According to Reed, after the first shot,
people in the crowd scattered. White ran away, but soon came back. Reed testified that
after the shooting “[Jones] was laying in the middle of the floor and [White] pistol-




5      Reed described her location in the videotape as the person in the white pants in the
lower right of the videotape as Jones and White started throwing punches at one another.
Reed’s location and the group of people gathered around the fight can be seen both in the
videotape and two stills of the videotape marked as Exhibits 11 (before the shooting) and
12 (after the first shot).
6      Reed testified she saw the gun the night before when White pulled it on her after
she declined a smoke on “his blunt.” But after she said she did not smoke, he put the gun
back in his pocket.
7      On direct examination, Reed testified that White said, “Blood, I’m not fighting no
more. I’m killing people.” When the prosecutor asked Reed a second time about the
shooting, she testified that White said, “Blood, I’m not fighting no more. I’m killing
niggas.” On cross-examination by White, Reed said, “Your exact words was, ‘I’m not
fighting no more. I’m killing niggers.’ That was your exact words.”
8      The exact number of shots is disputed. During the defense case, the prosecutor
asked White, “You shot what; three or four times?” White responded, “Somewhere
around there, sir.” The prosecutor asked, “At [Jones]; right?” White said, “Yes.” No
other witnesses testified as to the number of shots fired.


                                             4
whipped him. [White] hit him with the gun three times and he ran off.” Later White
returned and looked on while Jones was dying.
       Maurice Blackwill testified that he lived with his children at the Beechwood
Apartments at the time of the shooting. He stayed in his apartment during the shooting.
He heard someone yelling that he didn’t want to fight. He also heard gunshots. When
asked how many people were outside where the arguing and fighting was, Blackwill
testified that “[e]verybody that lived in the Beechwoods was outside that night.”
       Dontell Jenkins testified he knew “Ham,” a moniker for White. Jones was
Jenkins’ “blood cousin.” On the night of the shooting, Jenkins was playing cards at the
Beechwood Apartments, when Jones and White came over to the area. They were having
a “confrontation.” Then Jones and White went to the back. Jenkins followed to the back
and saw a crowd gathered there. Jenkins testified that the fight took place in the middle
of the fire lane, between buildings 14 and 25 on Exhibit 2. Then he heard “multiple
shots,” and took off running.
       Jazzlym McBride testified that she knew White and Jones. On the night of the
shooting, she heard them arguing, and White said he did not want to fight. She saw
White and Jones go to the back where the parking was. McBride saw White and Jones
“throwing fists” at each other. The prosecutor asked McBride to “circle the area you’re
talking about where you heard them arguing and fighting” on the photograph of the
apartment complex identified as People’s Exhibit 2.9 In response, McBride drew a black
oval on Exhibit 2, which is placed in the alley between buildings 13 and 14 on the left of
the photograph and buildings 25 and 26 on the right of the photograph. Notably, on
Exhibit 2, apartment 70 (where Bourne lived, discussed below) is the upstairs apartment
in building 13.
       McBride then testified as follows:
       “Q     Where did the shooting take place?


9     The prosecutor referred to the photograph as Exhibit 3, but it was clear from the
context that he was referring to Exhibit 2.


                                             5
       “A     Between the two buildings.
       “Q     Right where this oval is?
       “A     Yes.”
       McBride testified that she next heard White say, “Hunnas. I’m tired of fighting.”
McBride testified that “Hunnas” is what the gang Bounty Hunters sometimes called
themselves. McBride saw White point his hand towards Jones and she heard a gunshot,
but she did not see what White did.
       Los Angeles County Sheriff’s Department Detective Daniel Welle testified as a
gang expert. He testified that Jones was a member of a gang known as the Village Town
Piru Blood, with the moniker “T.J. RU.” Welle saw field identification cards showing
that White was a member of the Bounty Hunter Bloods gang, with the monikers Ham,
Li’l Hands, and Hands. In response to a hypothetical question, Welle testified that the
shooting was done for the benefit of the Bounty Hunter Bloods.
       Dr. Kevin Young performed the autopsy on Jones. Dr. Young testified that the
cause of death was gunshot wounds to the chest. He testified that there was “one definite
gunshot wound to the chest, which was fatal.” He also found “two probable gunshot
wounds to the abdomen,” which did not penetrate the skin but were consistent with
gunshot wounds. Jones also had a laceration on the top of his head that was consistent
with being hit by a metal object such as the butt of a gun.


              b. Shooting of Bourne
       Bourne did not testify at the trial. The prosecution instead relied on testimony
from Los Angeles County Sheriff’s Department Detective Sandra Nava, Deputy Lee
Warren, and Blackwill. During Nava’s testimony, a 911 call from Bourne was played for
the jury, in which Bourne said she had been shot in the leg and was calling from
apartment 70. When asked during the call where she was, Bourne responded, “I’m in my




                                             6
apartment. I just ran up here.”10 Warren responded to a call that there was a second
gunshot victim and contacted Bourne in apartment 70. Warren observed that there
appeared to be one gunshot wound to the right side of Bourne’s buttocks. Blackwill
likewise testified that Bourne “told me she was shot.”
       Nava identified Bourne as the person in a photograph shown to the jury. Nava
testified that Bourne lived in apartment 70, and Nava talked to her sometime after the
shooting. Nava tried to contact Bourne again to have her testify in court but was unable
to find her. Nava learned that Bourne had moved and there was no forwarding address.


       2. White’s Testimony
       White was the only defense witness. White testified the first fight with Jones was
in the street near the parking garage. White kept telling Jones he did not want to fight,
but Jones hit White in the face three times. People who had gathered pulled White and
Jones apart. White told Jones he did not want to fight anymore and walked away into the
parking garage.
       White then walked down toward the playground where Reed, Jones’s family and
Jenkins were talking. Then Jones approached White again, and Jones said, “Let me
holler at you.” Jones and White walked toward the back of the apartment complex. As
they walked towards the back, Jones said, “I’m gonna knock you out.” White told him he
did not want to fight, but Jones kept trying to press White to fight and, according to
White, Jones “kept running up on me.” White testified, “I felt like [Jones] was trying to
hurt me.” When they started walking toward the back of the apartment complex, a crowd
had formed, and everyone started moving to the back.
       According to White, “[Jones] come around from the crowd and rush [sic] me again
. . . [and] hit me a couple times.” White never threw any punches at Jones. He was



10     The videotape and Exhibit 2 show the staircase to the upstairs apartment originates
on the fire lane where McBride placed the black oval.


                                             7
trying to block Jones’s punches. White said that he kept telling Jones that he did not
want to fight, and Jones kept trying to fight.
       Jones came up to White a third time, saying “I’m gonna beat you up.” Jones was
almost running through the crowd. White felt Jones was not going to stop, and White
was scared.
       White had a loaded gun in his pocket. White testified, “I really just pulled it out
and just start shooting.” When the prosecutor asked White if “[t]he direction that [White]
shot was right at Jones,” White testified, “Yes.” The prosecutor asked, “There was a
large group of people around there?” White replied, “Yes, sir.”
       White said he was just trying to get Jones away from him. White shot
“somewhere around” three or four times at Jones. White was right behind Jones and saw
Jones fall to the ground. White acknowledged that when he pulled out his gun, Jones
started running. White saw all the people around, but he did not “even have no time to
think . . . .” White also hit Jones’s head with the gun itself, lacerating his head.
       White later learned from the detective that he also shot Bourne. According to
White, from the first fight to the shooting at Jones, less than 10 minutes had elapsed.
White testified he had known Jones for over a decade and they were friends. He said, “I
didn’t want to take his life, but he kept trying to fight me. . . . I’m sorry. . . . I wish I
could go back in the hands of time and bring back [Jones].”


B. Jury Instructions
       The jury was instructed on count 1 as to Jones on first degree murder and the
lesser included offense of second degree murder. On count 2 as to Bourne, the court
instructed the jury on attempted murder and the lesser included offense of attempted
voluntary manslaughter. On count 2, the court also instructed the jury with the “kill
zone” instruction (CALJIC No. 8.66.1), as follows: “A person who primarily intends to
kill one person, may also concurrently intend to kill other persons within a particular
zone of risk. This zone of risk is 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 it is

                                                 8
reasonable to infer the perpetrator intended to kill the primary victim by killing everyone
in that victim’s vicinity. Whether a perpetrator actually intended to kill the victim, either
as a primary target or as someone within a ‘kill zone’ is an issue[] to be decided by you.”
White did not object to the court giving the kill zone instruction.


C. Verdict and Sentencing
       The jury found White guilty on count 1 of the second degree murder of Jones
(§ 187, subd. (a)), and found all the gun allegations to be true (§ 12022.53, subds. (b), (c)
& (d)). As to count 2, the jury found White guilty of the lesser included offense of
attempted voluntary manslaughter (§§ 192, subd. (a), 664), and found the allegation that
White personally used a firearm (§ 12022.5, subd. (a)) to be true. As to both counts, the
jury found the gang allegation (§ 186.22, subd. (b)(4)) to be not true.
       The court sentenced White to state prison for a total aggregate term of 71 years to
life. On count 1, the court imposed a sentence of 15 years to life for the second degree
murder of Jones, doubled as a second strike under the three strikes law for a total of 30
years to life, and a consecutive term of 25 years to life for the firearm enhancement
(§ 12022.53, subd. (d)).11
       On count 2, the court sentenced White to the mid-term of three years for attempted
voluntary manslaughter (§§ 192, subd. (a), 664), doubled under the three strikes law, for
a total of six years, plus a consecutive five-year term for the firearm enhancement
(§ 12022.5, subd. (a)). On appeal it is undisputed that the five-year firearm enhancement
was unauthorized because section 12022.5 requires that the court impose an additional
consecutive sentence of three, four or 10 years. Finally, the court imposed a five-year




11     The court stayed the 10-year firearm enhancement pursuant to section 12022.53,
subdivision (b), and the 20-year firearm enhancement pursuant to section 12022.53,
subdivision (c), pursuant to section 654. The court also struck the one-year enhancement
under section 667.5, subdivision (b).


                                              9
enhancement under section 667, subdivision (a)(1), for White’s prior conviction of a
serious felony.


                                       DISCUSSION


A. Standard of Review
       “‘“The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]”’ [Citations.]” (People v. Smith (2005) 37 Cal.4th 733, 738-739; accord, People
v. Perez (2010) 50 Cal.4th 222, 229; People v. Snow (2003) 30 Cal.4th 43, 66.) Our task
in the instant case is to determine whether there is sufficient evidence to support the
jury’s finding that White acted with a specific intent to kill to convict him of attempted
voluntary manslaughter. (See Perez, supra, at p. 233 [“the evidence is insufficient to
establish that defendant acted with the intent to kill two or more individuals by firing the
single shot at the group of seven officers and a civilian”].) “‘“[I]f the verdict is supported
by substantial evidence, we must accord due deference to the trier of fact and not
substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]”
[Citation.]’ [Citation.]” (Smith, supra, at p. 739.)


B. Attempted Murder and Attempted Voluntary Manslaughter Require a Specific
Intent To Kill
       White contends there was insufficient evidence that he had the specific intent to
kill required for conviction of attempted murder or attempted voluntary manslaughter.




                                              10
We begin our analysis by addressing the mental state required for the greater crime of
attempted murder.12
       The mental state required for attempted murder is different from that required for
murder. “Murder does not require the intent to kill. Implied malice—a conscious
disregard for life—suffices.” (People v. Bland (2002) 28 Cal.4th 313, 327 (Bland);
accord, People v. Perez, supra, 50 Cal.4th at p. 229.) By contrast, implied malice cannot
support a conviction for attempted murder, which requires intent to kill. (Bland, supra, at
pp. 327-328; Perez, supra, at p. 229.) As the court held in Perez, “‘“[a]ttempted murder
requires the specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.” [Citations.]’ [Citation.]” (Perez, supra, at
pp. 229-230, fn. omitted.)
       The court in Bland discussed the difference between the intent required for murder
and attempted murder by explaining that the doctrine of transferred intent does not apply
to attempted murder: “Someone who in truth does not intend to kill a person is not guilty
of that person’s attempted murder even if the crime would have been murder—due to
transferred intent—if the person were killed. To be guilty of attempted murder, the
defendant must intend to kill the alleged victim, not someone else. . . . Someone who
intends to kill only one person and attempts unsuccessfully to do so, is guilty of the
attempted murder of the intended victim, but not of others.” (Bland, supra, 28 Cal.4th at
p. 328.)
       Voluntary manslaughter is a lesser included offense of murder when the required
element of malice is negated by a sudden quarrel or heat of passion, or by an
unreasonable but good faith belief in the necessity of self-defense. (See People v. Beltran
(2013) 56 Cal.4th 935, 942, 951; People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.)
The crime of attempted voluntary manslaughter requires proof of intent to kill. (People v.


12     As we discuss below, there was insufficient evidence of heat of passion or
imperfect self defense as to Bourne, so the verdict can only be upheld if there was
sufficient evidence to support the greater offense of attempted second degree murder.


                                             11
Montes (2003) 112 Cal.App.4th 1543, 1546-1547 [reversing conviction for attempted
voluntary manslaughter where reasonable probability jurors based verdict on defendant’s
conscious disregard for life]; Gutierrez, supra, at p. 710 [upholding refusal to instruct on
lesser offense of attempted voluntary manslaughter where lesser based on conscious
disregard for life].) As the court held in Montes, “If the crime of attempted murder
requires a specific intent to bring about a desired result (the killing of a human being),
then it appears to us that the crime of attempted voluntary manslaughter must also require
a specific intent to bring about that same desired result (the killing of a human being).”
(Montes, supra, at pp. 1549-1550.)
       In this case, there was no claim that, as to Bourne, malice was negated by a sudden
quarrel or heat of passion, or by an unreasonable but good faith belief in the necessity of
self-defense. Rather, the People relied on a “kill zone” theory of concurrent intent to
support a guilty verdict on count 2 for the attempted murder or attempted voluntary
manslaughter of Bourne.


C. Under a “Kill Zone” Theory, the People Must Prove That White Intended To Kill
Jones by Killing Everyone in the Group Around Him
       1. The “Kill Zone” Theory of Concurrent Intent To Kill
       Our Supreme Court first articulated the “kill zone” theory for attempted murder in
in Bland, holding: “‘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. . . .
Where the means employed to commit the crime against a primary victim creates a zone
of harm around that victim, the factfinder can reasonably infer that the defendant
intended that harm to all who are in the anticipated zone.’” (Bland, supra, 28 Cal.4th at
pp. 329-330.)
       The court in Bland gave as examples of a kill zone an assailant who places a bomb
on a commercial plane intending to harm a primary target on the plane by killing all
passengers on the plane, and where a defendant attacks a group of people by using

                                             12
“‘automatic weapon fire or an explosive device devastating enough to kill everyone in the
group.’” (Bland, supra, 28 Cal.4th at p. 330.) In these scenarios, “‘[t]he defendant has
intentionally created a “kill zone” to ensure the death of his primary victim, and the trier
of fact may reasonably infer from the method employed an intent to kill others concurrent
with the intent to kill the primary victim.’” (Ibid.)
       In Bland, the court found that where the defendant and a second shooter fired a
flurry of bullets at a fleeing car in order to kill the driver, injuring two passengers, the
evidence “virtually compels” an inference that the defendant created a kill zone that
would support attempted murder convictions as to both passengers. (Bland, supra, 28
Cal.4th at pp. 330-331, 333.)
       By contrast, in Perez, our Supreme Court found that the defendant had not created
a “kill zone” where he fired a single shot from a moving car at a group of eight
individuals 60 feet away, supporting only one, not eight, counts of attempted murder.
The court held, “‘a shooter may be convicted of multiple counts of attempted murder on a
“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 (i.e., the “kill
zone”) as the means of accomplishing the killing of that victim.’” (People v. Perez,
supra, 50 Cal.4th at p. 232.)
       In People v. Campos (2007) 156 Cal.App.4th 1228, 1233, 1244, this district found
that where the defendant pulled up in a truck four to five feet away from a car with a
driver and two passengers, and “sprayed the car with nearly a dozen bullets, from close
range,” there was sufficient evidence to support attempted murder charges as to the
passengers on a “kill zone” theory based on the intent of the defendant to kill everyone
inside the car in order to kill the driver.
       White relies on the decision of this district in People v. McCloud (2012) 211
Cal.App.4th 788, where the court found the kill zone theory did not support 46 attempted
murder convictions where the defendants shot 10 shots into a crowded party because
there was no evidence to show that “the defendant[s] [chose], as a means of killing the



                                              13
primary target, to kill everyone in the area in which the primary target is located . . . .”
(Id. at pp. 801, 803.)
       The People argue that the five shots White fired here are like the “flurry of
bullets” found to create a kill zone in Bland and Campos. White argues that the kill zone
theory does not apply because there was no evidence that White intended to kill everyone
around Jones in order to kill Jones. We do not reach this issue because we find
substantial evidence that White expressly intended to kill African-American people in the
crowd around Jones in addition to his intent to kill Jones.


       2. A Jury Can Find Express Malice Based on an Intent To Kill Someone in a
          Group of People
       In People v. Stone (2009) 46 Cal.4th 131, 136-138 and People v. Smith, supra, 37
Cal.4th at pp. 745-746, our Supreme Court again considered the kill zone theory, in each
case finding it inapplicable, but upholding the attempted murder convictions on a
different theory of express malice. In Stone, the court held that the kill zone theory did
not apply where the defendant fired one shot into a crowd of people with the intent to kill
one person, but not a specific named intended victim, although the court found that this
would still support an attempted murder conviction. (Stone, supra, at pp. 140-141.) The
court held: “An indiscriminate would-be killer is just as culpable as one who targets a
specific person. . . . [A] terrorist who simply wants to kill as many people as possible,
and does not know or care who the victims will be, can be just as guilty of attempted
murder.” (Id. at p. 140.)
       In Stone, the defendant fired a single shot from 10 to 15 feet away at a group of 10
people. The information alleged one count of attempted murder of Joel F., one of the 10
individuals in the group. According to the testimony at trial, however, the defendant did
not fire the gun at any particular person, but rather, at the group. The court held that the
kill zone theory did not apply because there was no “primary target” in that the defendant
intended to kill “someone” in the crowd, but did not specifically intend to kill Joel F.
(People v. Stone, supra, 46 Cal.4th at p. 139.) The court held that the evidence still

                                              14
supported an attempted murder conviction on the theory that “when no one dies that
person [the shooter] will be guilty of attempted murder even if he or she intended to kill a
random person rather than a specific one.” (Id. at p. 141.)13
       As this district held in Campos, in the context of the kill zone, “[a] defendant who
shoots into a crowd of people with the desire to kill anyone he happens to hit, but not
everyone, surely has the specific intent to kill whomever he hits, as each person in the
group is at risk of death due to the shooter’s indifference as to who is his victim.”
(People v. Campos, supra, 156 Cal.App.4th at p. 1243.)
       In People v. Smith, the court upheld the defendant’s conviction for two counts of
attempted murder where he shot one bullet into a car and a mother and her baby were
within the line of fire, but missed both by inches. The court upheld the convictions based
on evidence of the defendant’s animosity toward the mother and the baby’s father to
support a finding of his intent to kill both the mother and baby, but found that a kill zone
theory did not apply to show the defendant intended to kill the mother by killing both of
them with a single bullet. (People v. Smith, supra, 37 Cal.4th at pp. 746-747.)
       The court held that the defendant’s argument that the attempted murder conviction
for the baby must be reversed absent evidence of a kill zone is “founded on the incorrect
assumption that all single-bullet cases involving more than one attempted murder victim
must be analyzed under a kill zone rationale. And it is further founded on the incorrect
assumption that a shooter who fires a single bullet at two victims who are both, one
behind the other, directly in his line of fire, cannot, as a matter of law, be found to have
acted with express malice toward both victims.” (People v. Smith, supra, 37 Cal.4th at
p. 746.)


13     The court in Stone remanded the case on the issue of whether the information
provided sufficient notice to the defendant of the attempted murder charge where it
alleged intent to kill Joel F. instead of “someone” in the group of persons. (People v.
Stone, supra, 46 Cal.4th at pp. 141-142.) In this case because no error was raised by
White below or on appeal as to how he was charged in the information or the jury
instructions given, we do not remand for the trial court to address this issue.


                                              15
       We find this case falls squarely within the holdings of Stone and Smith in that
there was substantial evidence that White intended to kill “someone”—or multiple
people—in the crowd of African-American people gathered around Jones. We next turn
to the facts of this case.


       3. There Was Sufficient Evidence of Jones’ Intent To Kill African-American
           People in the Crowd Around Jones
       We find there was sufficient evidence from which the jury could have found that
White intended to kill “someone” or multiple people in the crowd that had gathered
around Jones.14 Most significantly, after the physical fighting ended, White said, “I’m
not fighting no more. I’m killing niggers.”15 This statement by White supports a
reasonable inference by the jury that White intended to kill one or more of the African-
American people gathered around Jones, not just Jones.16 Notably, White used the plural
in describing whom he intended to kill—this case would be different if, for example,
White said, “I’m going to kill you, nigger.” The inference of an intent to kill other
African-Americans in the crowd is also consistent with Reed’s testimony that the crowd
was egging White and Jones on as they were fighting, especially given that White did not


14      Because the jury was instructed on count 2 both on attempted murder based on
traditional principles of express malice and on the kill zone theory, the jury could have
relied on either theory to find White guilty on count 2. In light of the fact that we find
there was substantial evidence to support the attempted murder conviction based on
evidence of express malice, we do not reach the question whether there was substantial
evidence to support a kill zone theory. We also do not consider whether the court should
have instructed the jury on the kill zone theory given that White did not raise
instructional error below nor is it raised by White’s counsel on appeal.
15    While White used this racial epithet, we will refer to this statement as one by
White that he intended to kill African-Americans.
16     While the witnesses did not testify as to the ethnicity of the crowd, it appears from
a review of the video shown to the jury that the crowd was comprised of African-
American individuals. (See Exh. 6.) Also, the photograph of Bourne identified by Nava
shows that she was African-American. (See Exh. 14.)

                                             16
want to fight. Reed, Blackwill and Jenkins all described a crowd of people gathered at
the time of the shooting, which is also evident from the videotape. White testified that he
was aware of the crowd around Jones when he fired. He also described Jones as “almost
running through the crowd.” According to Reed, once White fired the first shot, people
in the crowd scattered.
       White argues that according to his own testimony, he was not thinking about the
crowd as he fired on Jones. While White did testify that when he saw all the people
around, he did not “even have no time to think,” the jury could reasonably have
discounted this self-serving testimony, instead focusing on White’s statement that he was
going to kill African-Americans.
       Further, according to Reed’s testimony, White hit Jones with the first and third
shots, causing Jones to drop to the ground, but White fired a total of five shots. This
provided additional evidence from which the jury could have concluded that White was
continuing to fire his revolver into the crowd even after Jones was down.17 While no
evidence was presented as to Bourne’s precise location, she was close enough to Jones to
be wounded by a bullet. Further, Bourne’s 911 call was played for the jury in which she
stated that she had just run up the stairs into apartment 70, which apartment was above
the area circled by witness McBride on Exhibit 2 as the area where the shooting took
place. Accordingly, the jury could have made a reasonable inference that Bourne was in
the crowd around Jones that started to disperse once the first shot was fired, which is
confirmed by her sustaining a bullet wound to her buttocks.18
       We therefore find that there was substantial evidence from which a rational trier of
fact could find beyond a reasonable doubt that White intended to kill “someone” or


17    No evidence was presented as to how many bullets White would have had in his
gun, which was never recovered.
18   While Bourne describes her injury in the 911 call as a gunshot wound to her leg,
when Deputy Warren later contacted Bourne in her apartment, he observed a gunshot
wound to Bourne’s buttocks.


                                             17
multiple African-Americans in the crowd around Jones, supporting an attempted second
degree murder conviction. (See People v. Stone, supra, 46 Cal.4th at pp. 140-141.)


D. Where a Rational Jury Could Find a Defendant Guilty of a Greater Offense,
Conviction of a Lesser Offense Will Be Upheld
       As White correctly argues on appeal, in order to find him guilty of voluntary
manslaughter, the jury would need to have found that White acted in the heat of passion
or imperfect self-defense. (See People v. Beltran, supra, 56 Cal.4th at p. 942.) It is
undisputed that the People did not present any evidence to support one of these theories
as to Bourne. However, because we find that a rational jury could have found White
guilty of attempted second degree murder on the state of the evidence, White cannot
complain of the more favorable verdict of attempted voluntary manslaughter. (See
People v. Lee (1999) 20 Cal.4th 47, 52 [upholding verdict of voluntary manslaughter
where insufficient evidence of provocation because evidence was sufficient for second
degree murder conviction].) As the court held in Lee, “in the absence of prejudice, a
defendant may not complain of error favorable to the defendant, including the giving of
correct, but inapplicable, instructions and return of a verdict of an offense less than that
which the evidence shows.” (Id. at p. 57.)


E. The Trial Court Imposed an Unauthorized Sentence on Count 2
       White and the People agree that the trial court erred by imposing a five-year term
for the gun use enhancement under section 12022.5, subdivision (a). Section 12022.5,
subdivision (a), provides, “any person who personally uses a firearm in the commission
of a felony or attempted felony shall be punished by an additional and consecutive term
of imprisonment in the state prison for 3, 4, or 10 years . . . .”
       On appeal, we have the inherent authority to correct an unauthorized sentence
even where a defendant, as here, failed to object in the trial court. (People v. Scott (1994)
9 Cal.4th 331, 354; People v. Wilson (2013) 219 Cal.App.4th 500, 518.) However,
because the selection of a term of imprisonment for the enhancement is a matter left to

                                               18
the discretion of the trial court, the better approach (see People v. Irvin (1991) 230
Cal.App.3d 180, 192) is to remand the matter to the trial court for it to exercise its
discretion under section 12022.5, subdivision (a), and to resentence White on count 2
with an authorized sentence not to exceed White’s original sentence. (See People v. Lai
(2006) 138 Cal.App.4th 1227, 1245.)
       The People also point out that the abstract of judgment should be amended to
reflect the correct Penal Code section as “PC 12022.5(a)” instead of “PC 12022.5.”
(People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order correction of
clerical error at any time].) We direct the trial court to make this correction to the
abstract of judgment.


                                      DISPOSITION


       The judgment is reversed as to the five-year enhancement imposed on count 2 and
the matter is remanded for the limited purpose of the court exercising its discretion with
respect to sentencing on count 2 for the firearm enhancement (§ 12022.5, subd. (a)), and
correcting the abstract of judgment to show that the firearm enhancement imposed as to
count 2 was pursuant to subdivision (a) of section 12022.5. In all other respects, the
judgment is affirmed.



                                                  FEUER, J.*


We concur:



              PERLUSS, P. J.                              ZELON, J.


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

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