Filed 9/10/14 Opinion following transfer from Supreme Court


                                     CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                                FOURTH APPELLATE DISTRICT

                                                              DIVISION TWO



THE PEOPLE,

             Plaintiff and Respondent,                                   E054056

v.                                                                       (Super.Ct.No. FVA1001265)

MICHAEL RAFAEL CANIZALES et al.,                                         OPINION

             Defendants and Appellants.




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

Judge. Affirmed in part; reversed in part with directions

             Christine Vento, under appointment by the Court of Appeal, for Defendant and

Appellant Michael Canizales.

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

Appellant KeAndre Windfield.




*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I, II(1)(a) & (b) and (2)(a) & (b).


                                                                   1
       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Andrew

Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

       A jury convicted defendants, Michael Canizales and KeAndre Windfield of first

degree murder (Pen. Code, § 187, subd. (a)),1 during which a principal discharged a

firearm proximately causing death (§ 12022.53, subds. (d) & (e)(1)), and two counts of

attempted willful, premeditated and deliberate murder (§§ 664/187), during which a

principal discharged a firearm (§ 12022.53, subds. (c) & (e)(1)). The jury found that all

the offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd.

(b)(1).) Canizales was sentenced to 25 years to life and two terms of 15 years to life and

Windfield was sentenced to two terms of 25 years to life and two terms of 15 years to life

plus 40 years. They appeal, claiming jury instruction and sentencing error. We reject

their contentions. Since we originally decided this case, the California Supreme Court in

People v. Chiu (2014) 59 Cal.4th 155, 167, held that “a defendant cannot be convicted of

first degree premeditated murder under the natural and probable consequences doctrine.”

Because we cannot conclude beyond a reasonable doubt that the jury based its verdict of

first degree murder for Canizales on the legally valid theory that he aided and abetted

premeditated and deliberate murder (ibid), we must reverse his conviction for that offense

and offer the People the opportunity to retry him for first degree murder as an aider and


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



                                              2
abettor of that offense or to accept a reduction to second degree murder. We also direct

the trial court to correct errors in Windfield’s abstract of judgment.

                                                  I.

                                               FACTS

       Attempted murder victim, Travion Bolden, testified that he lived on Jackson Street

and his friend, Denzell Pride, the other attempted murder victim, was a member of the

gang, Hustla Squad, and he had told police that Windfield was a member of the Ramona

Blocc gang. Bolden testified that Pride had had problems with Ramona Blocc. Bolden

had told the police before trial that Canizales was a known Ramona Blocc gang member.

       Pride testified that Bolden was a member of Hustla Squad, then he equivocated.

He testified that Windfield was a member of Ramona Blocc. He had told the police

before trial that Canizales and Windfield were members of Ramona Blocc.

       The prosecution’s gang expert testified that Ramona Blocc Hustlas’s main rival is

Hustla Squad Clicc. In 2007, a Ramona Blocc member was killed by a Hustla Squad

member. The expert opined that it would be expected for Ramona Blocc to retaliate

violently for the killing of one of its members. He opined that Canizales and Windfield

were Ramona Blocc members and that Windfield was the leader. Windfield had a

“HSK” tattoo on his shaved head, which stands for “Hustla Squad Killer” and the initials

“WC” on his arm, which are the initials for Canizale’s gang moniker. The expert opined

that Bolden and Pride were Hustla Squad members. He also opined that the shooting was




                                              3
committed for the benefit of, in association with and in furtherance of the Ramona Blocc

gang.

        The murder victim’s friend testified that the murder victim was not from the area

around Jackson Street and was there the night of July 18, 2008 with three girlfriends

laughing and dancing to the music coming from her parked car as she stood next to it on

Jackson Street when she was fatally wounded during the shooting. Another friend

testified that the murder victim was a college student who had gone to Jackson Street to

visit the friend’s aunt and the murder victim had no enemies on that street.

        A woman named Kennetha testified that she used to date Canizales. She had told

the police that she had gotten pregnant by him.2 According to the police, it appeared as

though she was still involved with him at the time she was questioned by them. She

testified that Bolden was a Hustla Squad member.

        Bolden had told police that in the late morning or early afternoon of July 18, 2008,

he was at a fast food restaurant where he saw Canizales and a female, who asked where

Pride, Bolden’s friend, was.3 Although Canizales shook Bolden’s hand, Bolden thought

the female was trying to set up Pride. Pride came into the restaurant and he and

Canizales argued over the female, but Bolden did not get involved in the argument and


        2
        Bolden had told the police that Kennetha was having sex with both Pride and
Canizales and she did not know which of the two had fathered her baby.

        3
        At trial, he admitted being at the restaurant, but denied seeing Canizales,
Kennetha or Pride there or witnessing an argument there.



                                              4
Canizales declined to fight Pride over her. Eventually, Canizales and the girl left, and

Bolden left with Pride. Bolden testified that later that day,4 he was standing on the side

of Jackson where his home was, talking with some females, when Kennetha joined their

group and called Canizales, who was walking nearby, over. Canizales and Kennetha

talked, and Canizales asked Bolden where he was from, meaning with what gang did

Bolden associate. Although Bolden testified at trial that Canizales did not ask this

question with animosity, and Bolden believed that Kennetha had put Canizales up to

asking it, he had told the police before trial that Canizales had asked it in a way that

suggested that Canizales wanted to fight Bolden, but the females present told Canizales to

knock it off. Bolden testified that he replied that he didn’t bang and Canizales walked off

towards another fast food restaurant. Bolden had told the police that Canizales had

walked off towards the grocery store.

       Bolden testified that he felt he had been disrespected during the exchange with

Canizales and Kennetha, that Kennetha knew that Canizales and Pride did not get along

and he felt Kennetha was trying to “stir the pot” and set him up because she knew Pride

and Canizales had problems, so he went to Pride’s home and told him what had

happened. Bolden had told the police that Canizales had wanted to fight him, but Pride

had told Bolden that he knew Canizales was just trying to scare Bolden. Bolden testified

that Pride went to where Canizales had been, but Pride’s mother and Bolden’s mother

told him to stop, and Canizales was already gone, anyway. Bolden testified that later, he

       4   Bolden told the police it was at 3:00 or 4:00 p.m.


                                              5
and Pride were outside Pride’s apartment on Jackson Street, where more than 30 people

were attending a block party in the street. Bolden testified that the murder victim was

standing outside her parked car with the doors open, listening to music and dancing. He

testified that he saw a car5 that had a lot of people in it, then heard Windfield say, “That’s

that little [racial expletive].[6] Bust,” then Windfield removed a gun from his waistband,

tried to hand it off to Canizales, then Windfield shot it himself. He testified that “bust”

meant, “Get out of Dodge or you’re going to get shot.”7 Bolden testified that Pride

grabbed him after the first shot and Bolden turned around and started running. Bolden

testified that when he looked back while running, Canizales was gone, but the shooting

continued. He testified that it appeared as though Windfield couldn’t control the gun

because shots were going everywhere. He testified variously that he did not think

Windfield was shooting at him because he was running in front of Pride, “but he was

shooting our way” and he did not remember telling the police that Windfield was




       5 He testified that because it was dark outside, he could not be sure that this car
was the same car he had seen driving up and down an adjacent street while he and Pride
stood outside Pride’s home.

       6  Bolden also testified that Windfield might have said, “There goes those little
[racial expletive], right there,” but Windfield could not have meant Bolden because
Windfield did not know Bolden.

       7   A police department detective testified that it meant, “shoot” in gang-speak.



                                              6
shooting at him, but he probably did. Bolden testified that Pride ran immediately after

the first shot had been fired.8

       Bolden had told the police that this car had driven up and down the street, then

parked and the people inside had gotten out and began walking.9 One of these people

said, “That’s the little [racial expletive] right there.” Bolden believed this was directed at

Pride and Pride began to run. Windfield, who was part of the group, told Canizales, who

was also part, “bust.” Windfield pulled a gun out of his waistband, handed it to

Canizales, then got it back from Canizales and fired it. Bullets hit the gates near where

Bolden was standing. Pride ran across the street from where his home was and towards

the park where the street ended. Every time Bolden asked Pride about the shooting,

afterwards, Pride told him that it was Squad business. Bolden feared that Pride suspected

Bolden of setting him up because Bolden had shaken Canizale’s hand and Kennetha kept

asking Bolden where Pride was before the shooting.

       Bolden testified that he was either unable to recall some of the statements he had

made to the police that contradicted his trial testimony or he denied making them.

       Kennetha testified to a different version of the encounter between her, Canizales

and Bolden before the shooting. She said that she was with the females around 3:00 or


       8   Bolden testified that he did not know if Windfield continued to fire at Pride as
the latter ran, but he had told the police that Windfield did.

       9  He testified that he had not told the police that five to six African-American
males had gotten out of the car, but he did say that there were five to six such males in
the street.


                                              7
4:00 p.m. when Bolden walked across the street and towards Canizales, saying things

about gangs and throwing gang signs. Canizales “banged back” at Bolden and threw

gang signs, although she denied telling the police that he identified himself as being from

Ramona Blocc or asked Bolden where he was from. Bolden and Canizales seemed angry

at each other. She told Canizales to leave and he went towards the grocery store. She

contradicted her statement to the police that Canizales had been “banging” for two years.

She claimed not to know who Windfield was.

       Kennetha had told the police that Canizales had walked across the street from

where she and the females were conversing and Bolden yelled at Canizales. Canizales

asked Bolden where he was from and told him that he was from Ramona Blocc. There

was a heated argument between the two, during which both yelled out gang language.

She feared something was going to happen, so she left and 7-10 minutes later, heard

gunfire. Fearing that Canizales was involved, she tried to call him but was unable to until

an hour later, when they had a casual conversation about shoes and sex. She had told the

police that Windfield was a friend of Canizales’s. She also told police that when she and

Canizales went their separate ways the night of the shooting, he had told her that he was

going to the grocery store.

       Portions of Kennetha’s preliminary hearing testimony were read to the jury. She

said that Canizales had said, “Ramona Blocc Hustlas, I will let it be known” and after

Bolden yelled something, Canizales said, “Ramona Blocc, let it be known.”




                                             8
        Pride testified that Bolden came to his home around 3:30 p.m. on July 18, 2008.

He testified that around 6:00 or 6:30 p.m., he went outside and saw that people were

partying in the street. When he heard the shots, he ran towards his nieces and pushed

them back into his home, then went back outside and saw the murder victim on the

ground. He testified that he saw three males on the adjoining street, but it was dark and

he did not know who fired the shots. He said he did not feel as though he was being shot

at when he ran towards his nieces. While testifying, Pride made various statements about

telling the police that someone had said, “Look, whoo, whoo” and there was a stopped

car at the corner and three African-American men were walking in the middle of the

street and one pulled out a gun and said, “Bust” and started shooting. He denied telling

the police that the shooter got the gun from his pants He testified that he did not know

who Canizales was. He denied seeing Bolden at the time of the shooting.

        Pride had told the police before trial that Bolden had had an argument with

Canizales, from Ramona Blocc, and Bolden had come to Pride’s home and told Pride

what had happened. Pride had told the police that he and Bolden were standing outside

Pride’s home when they saw Canizales “come back through.” Pride had also told the

police that Windfield was the shooter, who had uttered the word, “Bust” and this was

based on the shooter’s build and his deep voice10 (Windfield and Pride had gone to




        10   At trial, he denied that the shooter had a deep voice or that he told the police
this.


                                                9
elementary school together). He claimed he ran to his apartment after the first shot was

fired.

         Bolden’s mother testified that some time before the shooting, she was standing

with Bolden on Jackson Street with three to four females when one of them, Kennetha,

called out to Canizales, who came over. Canizales and Bolden exchanged, “What’s up?”

and Bolden’s mother though Canizales was being somewhat aggressive with her son.

Bolden’s mother later saw a man standing side by side with Canizales in the street where

Jackson intersected another street. He pointed a gun down Jackson. She heard shots, saw

that Canizales remained where he was during them, ducked down, then saw this man, still

holding the gun, and Canizales running off in the same direction.

         A police department explorer, who had attended school with Canizales and was a

friend of Windfield, testified that she was on ride-along on the night of July 17, 2008,

when she saw Canizales and Windfield at the scene of an incident involving Ramona

Blocc. At 10:20 p.m. on July 18, 2008, she was at the aforementioned grocery store

when she saw Canizales and Windfield outside the store. She saw a car with two people

in it pull up in front of them. She recognized the driver of the car as one of the arrestees

from the night before. Windfield touched the hood of the car and it stopped. He went to

the driver’s side and had a conversation with the driver, while Canizales stood “in the

immediate area of the car.” Windfield told the driver to “Roll up in the whip,” and the

driver shook his head in acknowledgement. This means, “[Y]ou go in the car.”

Windfield said something to the driver involving the word, “We’ll” while he made a



                                             10
motion towards Canizales. As the car pulled away, Canizales and Windfield yelled

“Jackson Street” as Windfield patted the car again. Canizales led the way as he and

Windfield moved towards Jackson Street, yelling loudly, “Ramona Blocc” and throwing

up gang signs. They energetically pivoted and skipped, as though dancing, and

continuing to yell out “Ramona Blocc” as they moved. Five to ten minutes later she

heard the sirens and helicopters that had apparently responded to the shooting.

       A female friend of Windfield’s family testified that in June 2009, she was at

Windfield’s house when Windfield casually told her, while playing a video game, that he

and Canizales had killed a girl on West Jackson Street, but they had only “done” three

days in jail and “got off.” Windfield explained to the female that the police had no

evidence or witnesses and that was why he only “did” three days.11 Windfield also said

that he and Canizales had gone to the scene of the crime to “get” a Hustla Squad member

who had killed Windfield’s cousin. He said Hustla Squad members were his enemies.

He explained that the girl got killed because she got in the way when a Hustla Squad

member “they” were shooting at ran. She had heard Windfield refer to himself as part of

Ramona Blocc and proudly talked about it to his friends and with fellow gang members.

She had also heard Canizales talk about Ramona Blocc a lot, and not in private, and she

saw him with another Ramona Blocc member.


       11  Bolden’s mother testified that, to protect her son from harm, after the shooting,
she sent him away so the police could not question him and they were unable to find him.
Pride testified that hours after the shooting, he moved away with his brother at his
mother’s insistence.


                                            11
       A police department detective testified that several days after the shooting,

Canizales gave him various accounts of his whereabouts on the night of July 18, 2008,

but when confronted with a surveillance video taken at the grocery store that night,

admitted that he had been there. He claimed that he was afraid that if he returned home

from the store the way he came there, he would be jumped, so he told the boy that was

with him to find his sister and tell her to have his brothers come to the store and get him.

       The parties stipulated that five bullet casings, consistent with the fatal bullet, were

recovered from the crime scene. They were 100 feet from where the murder victim had

been hit.

                                                  II.

                                     ISSUES AND DISCUSSION

       1. Jury Instructions

       a. Judicial Council of California Criminal Jury Instruction, CALCRIM No. 400

       The jury was given CALCRIM No. 400, the following standard instruction, “A

person may be guilty of a crime in two ways. One, he or she may have directly

committed the crime. I will call that person the perpetrator. Two, he or she may have

aided and abetted a perpetrator, who directly committed the crime. A person is equally

guilty of the crime whether he or she committed it personally or aided and abetted the

perpetrator who committed it”12

       12In the wake of cases we discuss below, the “equally guilty” language of
CALCRIM No. 400 has, since this trial occurred, been removed. (People v. Loza (2012)
207 Cal.App.4th 332, 348, fn. 8 (Loza).) Albeit that in certain cases, this language could
                                                                   [footnote continued on next page]


                                             12
        Canizales here contends that this instruction, as to the murder charge, “improperly

tied the aider and abettor’s mental state to that of the perpetrator’s, thereby lowering the

prosecution’s burden of proof.” We see no such statement or even insinuation in

CALCRIM No. 400. More importantly, the jury was also given CALCRIM No. 401,

which provides, in pertinent part, “to prove that defendant, . . . Canizales, is guilty of a


[footnote continued from previous page]
be misleading or confusing, appellate courts have repeatedly held that CALCRIM No.
400 is a correct statement of the law. (See, e.g., Loza, at p. 350; People v. Lopez (2011)
198 Cal.App.4th 1106, 1118; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163
(Samaniego).) The fact that the prosecutor, in her argument to the jury, referred to this
instruction, did not, as defendant now claims, “reaffirmed the error.” The prosecutor
argued that Canizales “got the ball rolling” by arguing with Bolden earlier that day and
shouting gang slogans. He asked a juvenile to go get his brothers to help, in particular,
Windfield, the Hustla Squad Killer, as Windfield’s tattoo stated he was, bringing him to
where Canizales knew Hustla Squad gang members were. Further, he lead the way of
members of Ramona Blocc, including Windfield, by doing an amped up side step dance
to the location of the shooting, where he and Windfield shouted out gang names. The
prosecutor pointed out that Canizales’s guilt was, inter alia, as an aider and abettor to
murder, that an aider and abettor is equally guilty as the perpetrator, and one can be an
aider and abettor simply by instigating what the perpetrator did. The prosecutor went on,
“That’s partly what . . . Canizales did. He instigates the situation: [He] call[s] Bolden and
Pride during the earlier confrontation over, get[s] the plan going, walk[s] over [to the
scene of the shooting later], lead[s] the way over to . . . [the scene of the shooting]. I
anticipate that [counsel for Canizales] is going to argue to you, [‘]But [Canizales] didn’t
shoot. How can you find him guilty . . . ?[’] . . . You can’t put a ball in motion that gets
somebody killed like that and just say, [‘]Well, . . . I didn’t shoot. You shouldn’t find me
guilty.[’] [¶] . . . [Canizales is] an aider and abettor beyond a reasonable doubt in this
case, and he needs to be convicted of the charges equally like the perpetrator of the
crime.” The prosecutor argued that the plan for Canizales and Windfield to go to Jackson
Street and shoot at the person who killed Windfield’s cousin was premeditated, willful
and deliberate. She said that Canizales’s intent can be gleaned from the fact that within a
short time after the shooting, he spoke on the phone to Kennetha casually about shoes and
sex, signifying that he was unconcerned about the murder victim, and he and Windfield
“had time [to consider what was going to happen, t]hey met at the [market, t]hey
discussed it[, t]here was a plan [to r]oll up in the [car].” She asserted that “what they
[(meaning, Canizales and Windfield)] did was . . . willful, deliberate and premeditated.”


                                              13
crime based on aiding and abetting that crime, the People must prove that: The

perpetrator committed the crime; the defendant knew that the perpetrator intended to

commit the crime; before or during the commission of the crime, the defendant intended

to aid and abet the perpetrator in committing the crime; and the defendant’s words or

conduct did, in fact, aid and abet the perpetrator’s commission of the crime. [¶]

Someone aids and abets a crime if he or she knows of perpetrator’s unlawful purpose and

he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or

instigate the perpetrator’s commission of that crime.” (CALCRIM No. 401, italics

added.) Canizales does not assert that this is not a correct statement of the law and it

properly described the mental state necessary for Canizales to be convicted on an aiding

and abetting theory. (People v. Lee (2003) 31 Cal.4th 613, 624; People v. Beeman (1984)

35 Cal.3d 547, 561.) In People v. Mejia (2012) 211 Cal.App.4th 586, 625 (Mejia), the

inclusion of the equally guilty language in CALCRIM No. 400 did not require reversal of

the conviction where CALCRIM No. 401 was given. The jury was also instructed that a

defendant could not be guilty of first degree murder unless he acted willfully, i.e., with

intent to kill, deliberately and with premeditation. The prosecutor’s argument to the jury

was that Canizales acted willfully, and with premeditation and deliberation in aiding and

abetting the murder.13

       Canizales asserts that CALCRIM No. 400 was also defective because

“[i]t . . . fail[ed] to inform the jury that an aider and abettor . . . can be guilty of a lesser

       13   See footnote 12, ante, pages 12 and 13.


                                                14
crime than the perpetrator.” Canizales cites Samaniego, in support of his position that the

trial court had a sua sponte duty to modify the standard instruction to include this

concept. Ironically, Samaniego held that the defendant’s failure to request such a

modification forfeited an identical complaint on appeal. (Samaniego, supra, 172

Cal.App.4th at p. 1163; Accord, Mejia, supra, 211 Cal.App.4th at pp. 586, 624; People v.

Loza (2012) 207 Cal.App.4th 332, 350 [Fourth Dist, Div. One].) Further, Samaniego

found the presence of CALCRIM No. 401, quoted above, ensured that if the jury

convicted Canizales under this theory, it found that he premeditated and deliberated.

(Samaniego, supra, 172 Cal.App.4th at p. 1166.) Although Samaniego did not so hold,

we conclude that another provision of CALCRIM No. 401 given here, i.e., that

“defendant intended to aid and abet the perpetrator in committing” premeditated and

deliberate murder (ibid), along with the instructions on first degree murder, ensured that

the jury, if it convicted Canizales under this theory, found that he had the intent that the

murder victim be killed.14 Samaniego held that another instruction given in that case,

       14  In a letter brief submitted before oral argument, Canizales called our attention
to People v. Ramirez (2013) 219 Cal.App.4th 655, which parted company with this
holding in Samaniego. However, as counsel conceded during oral argument, review has
been granted in Ramirez. (People v. Ramirez, review granted Dec. 18, 2013, S214133.)
       To the extent Canizales wishes to advance the holding in Ramirez, without citing it
as authority, we must note our disagreement with it. Canizales refers to the instruction
differentiating the degrees of murder, which was also given here, thusly, “A defendant is
guilty of first degree murder if the People have proved that he acted willfully,
deliberately, and with premeditation. The defendant acted willfully if he intended to kill.
The defendant acted deliberately if he carefully weighed the considerations for and
against his choice and, knowing the consequences, decided to kill. The defendant acted
with premeditation if he decided to kill before committing the act that caused death.”
While Canizales implies that, under this instruction, the jury could not find that the aider
                                                                   [footnote continued on next page]


                                              15
which was also given here providing that if one acts with intent to kill, one acts willfully,

ensured that the jury found that the defendant so acted. (Samaniego, at p. 1165.)

        Canizales also cites People v. Nero (2010) 181 Cal.App.4th 504 in support of his

argument that the trial court here had a sua sponte duty to instruct that he could be

convicted of a lesser crime than Windfield. However, in Nero, the jury asked, during

deliberations, whether the aider and abettor must receive the same level of guilt as the

perpetrator, or could she receive a higher or lower degree of murder or manslaughter.

(Id. at p. 511.) The trial court responded that the aider and abettor “can bear no greater

responsibility [than the perpetrator] as far as the degree.” (Ibid.) When asked if the aider

and abettor could bear less responsibility, the trial court responded that the jury could


[footnote continued from previous page]
and abettor was guilty of first degree murder unless he acted willfully and deliberately,
the above-italicized portion implied that only the actual perpetrator had to premeditate,
and was, therefore, improper. We view this as a tortured interpretation of the instruction.
If Canizales intended that the victim be killed and he carefully weighed the
considerations for and against the decision that the victim be killed, and, knowing the
consequences, decided that the victim be killed, it strains credulity to believe that the jury
did not also find that he premeditated. Moreover, the way this instruction is worded
required the jury to tweak it in applying it to Canizales. According to its exact wording,
the only defendant to whom it could apply would be Windfield because it required that
the subject of the instruction “decided to kill” not that he decided that the victim be
killed. We cannot accept, and Canizales does not even allege, that this instruction was
not available for use by the jury to convict Canizales as an aider and abettor to first
degree murder. Finally, in arguing to the jury that Canizales acted with premeditation
and deliberation (see fn. 12, p. 13), the prosecutor cleared up any possible ambiguity
created by this instruction. (See People v. Kelly (1992) 1 Cal.4th 495, 526.)
Additionally, Samaniego, which Canizales cited in his opening brief, held, “It would be
virtually impossible for a person to know of another’s intent to murder and decide to aid
in accomplishing the crime without a least a brief period of deliberation and
premeditation . . . .” (Samaniego, supra, 172 Cal.App.4th 1148, 1166; Accord, People v.
Lee (2003) 31 Cal.4th 613, 624.)


                                             16
find the aider and abettor not guilty. (Ibid.) Another juror asked whether, given that a

defendant was guilty of aiding and abetting, does the aider and abettor’s level of murder

or manslaughter have to be the same as the perpetrator or could it be different. (Ibid.)

The court reread the then equivalent of CALCRIM Nos. 400 and 401, including the

“equally guilty” language in the former. (Ibid.) After two jurors said these instructions

were helpful, the court, reiterated, in part, “Each principal, regardless of the extent or

manner of the participation, is equally guilty.” (Ibid.) The appellate court in Nero

concluded that the aider and abettor instructions, despite hinting that the aider and

abettor’s mental state was not tied to the perpetrator’s, were obviously (due to the jury’s

questions) confusing and should have been modified. (Id. at p. 518.) Specifically, the

appellate court held, “[W]here as here, the jury asks the specific question whether an

aider and abettor may be guilty of a lesser offense, the proper answer is ‘yes . . . .’ The

trial court, however, by twice rereading [the then equivalent of CALCRIM No. 400] in

response to the jury’s question, misinstructed the jury.” (Ibid.) Here, the jury did not ask

questions as did the jury in Nero. As Division One of this court observed in Loza, “If

[Loza] had involved only the [trial] court’s instructing the jury with the ‘equally guilty’

language from . . . CALCRIM No. 400, we might have . . . concluded that any error in the

[trial] court’s use of th[is] . . . language was harmless.” (Loza, supra, 207 Cal.App.4th at

p. 352.)

       Having concluded that the instructions given adequately conveyed to the jury what

it needed to find in order to convict Canizales of first degree murder as an aider and



                                              17
abettor, we necessarily reject Canizales’s contention that his trial counsel was

incompetent for failing to request a modified instruction.

       b. CALCRIM No. 403

       The jury was given a modified version of CALCRIM No. 403, the standard

instruction on natural and probable consequences, as a theory of Canizales’s guilt of the

murder alternative to the theory that he aided and abetted the murder. That instruction

provided, “Before you may decide whether defendant, . . . Canizales, is guilty of murder

under this theory, you must decide whether he is guilty of assault with a deadly weapon.

[¶] To prove that the defendant is guilty of murder, the People must prove that: 1. The

defendant is guilty of assault; 2. During the commission of assault a co-participant in that

assault committed the crime of murder; and under all of the circumstances, a reasonable

person in the defendant’s position would have known that the commission of the murder

was a natural and probable consequence of the commission of the assault. [¶] And this is

for the theory of natural and probable consequences. [¶] A co-participant in a crime is

the perpetrator or anyone who aided and abetted the perpetrator. It does not include a

victim or innocent bystander. [¶] A natural and probable consequence is one that a

reasonable person would know is likely to happen if nothing unusual intervenes. In

deciding whether a consequence is natural and probable, consider all of the circumstances

established by the evidence. If the murder was committed for a reason independent of the

common plan to commit the assault, then the commission of murder was not a natural and

probably consequence of assault. [¶] To decide whether the crime of assault was



                                             18
committed, please refer to the separate instructions that I will give you on that crime.

(See CALCRIM No. 875.)”

       Because under the authority of People v. Chiu, supra, 59 Cal.4th 155, Canizales

cannot be guilty of first degree murder under the theory that he aided and abetted an

assault with a deadly weapon, the natural and probable consequence of which was the

premeditated and deliberate murder of the murder victim, we need not address his

challenges to CALCRIM No. 403. Here, the prosecutor pointed out to the jury that it

could utilize the theory that Canizales aided and abetted the aggravated assault, the

natural and probable consequence of which was the murder. There is nothing in the

record before us upon which we may conclude, beyond a reasonable doubt, that the jury

based Canizales’s guilt of first degree murder on the theory that he aided and abetted the

murder, not that he aided and abetted the aggravated assault, the natural and probable

consequence of which was the murder. Therefore, under Chiu, we must reverse

Canizales’s conviction of first degree murder.

       c. Kill Zone Instruction on Attempted Murder

              1. The Law on Kill Zone

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

Supreme Court explained, “[A defendant] 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 . . . if the person were killed. To be guilty of attempted murder, the defendant

must intend to kill the alleged victim, not someone else. . . . [¶] . . . [¶] [However, t]he



                                             19
conclusion that transferred intent does not apply to attempted murder still permits a

[defendant] who shoots at a group of people to 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. . . . [C]onsider a defendant who intends to kill A and, in order to ensure

A’s death, drives by a group consisting of A, B and C, and attacks the group with

automatic weapon fire . . . devastating enough to kill everyone in the group. The

defendant has intentionally created a ‘kill zone’ to ensure the death of his primary victim,

and the trier of fact may reasonably infer from the method employed an intent to kill

others concurrent with the intent to kill the primary victim. When a 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 that victim, the factfinder can reasonably infer that the

defendant intended that harm to all who are in the anticipated zone . . . .” (Id. at pp. 328-

330.) “[T]he evidence here virtually compelled a finding that even if defendant primarily



                                              20
wanted to kill [the murder victim], he also, concurrently, intended to kill the others in the

car. At the least, he intended to create a kill zone.” (Id. at p. 333.)

       We now turn our attention to People v. McCloud (2012) 211 Cal.App.4th 788

(McCloud), upon which Canizales heavily relies in his criticism of the kill zone

instruction given in this case. McCloud begins its discussion of the kill zone theory by

citing language in People v. Smith (2005) 37 Cal.4th 733 (Smith) about that theory.

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

(Accord, People v. Adams (2008) 169 Cal.App.4th 1009, 1022 (Adams).) 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 the 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.”15 (Smith,


       15   However, in Bland, the California Supreme Court cited with approval the
holding in People v. Vang (2001) 87 Cal.App.4th 554, 564 (Vang), that “‘ the fact that
[defendants] could not see all of their victims did not somehow negate their . . . intent to
kill as to those victims who were present and in harm’s way, but fortuitously were not
killed.’” (Bland, supra, 28 Cal.4th at pp. 313, 330.) In Adams, supra, 169 Cal.App.4th
1009, 1023, the appellate court noted that the language in Smith was dicta, and, even if it
had not been, it did not “preclude a rational jury from concluding that a defendant who
does not know of the presence of the victims . . . had the necessary express malice if the
jury found that the defendant intentionally created a zone of harm and that the victims
were in that zone of harm.”


                                              21
supra, 37 Cal.4th at p. 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.’” (Smith, at p. 746.)

       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.)



                                              22
       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

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.

In People v. Stone (2009) 46 Cal.4th 131, 136, 137 (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.” (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.)

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

the kill zone theory. In Adams, supra, 169 Cal.App.4th 1009, 1023, the Fifth District



                                               23
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]

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. 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 . . . .”

          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 fn. 19, ante,

p. 23.)

                2. Kill Zone Instructions Given Here and Defendants Arguments

          The jury was given the following instruction on the intent necessary for attempted

murder, “To prove that a defendant is guilty of attempted murder, the People must prove

that: 1. The defendant took a direct but ineffective step toward killing another person; and

2. The defendant intended to kill that person. [¶] . . . [¶] A person who attempts to



                                              24
commit murder is guilty of attempted murder even if, after taking a direct step toward

killing, he or she abandons further efforts to complete the crime, or his or her attempt

fails or is interrupted by someone or something beyond his or her control. On the other

hand, if a person freely and voluntarily abandons his or her plans before taking a direct

step toward committing the murder, then that person is not guilty of attempted murder.

[¶] A person may intend to kill a particular victim or victims and at the same time intend

to kill everyone in a particular zone of harm or ‘kill zone.’ In order to convict a

defendant of the attempted murder of . . . Bolden, the People must prove that the

defendant not only intended to kill . . . Pride but also either intended to kill . . . Bolden, or

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

defendant intended to kill . . . Pride by killing everyone in the kill zone, then you must

find the defendant not guilty of the attempted murder.”

       The prosecutor argued that after Bolden and Canizales had a heated gang-inspired

verbal confrontation, Canizales and Windfield, Ramona Blocc members, went to Jackson

Street to shoot at a member of the rival, Hustla Squad, of which Bolden and Pride were

members, to avenge the death of his cousin. She argued that this was the plan of both

Canizales and Windfield. She said that Windfield shot five times “trying to kill that rival

gang member. She continued, “[Bolden] told you that the initial person that was being

shot at was [Pride]. In [his interview with police] he tells you [that] at one point he runs

out; he’s being shot at. So that’s why you have those counts of attempted murder. You

have . . . the one count of attempt[ed] murder on [Pride] and on [Bolden], because they’re



                                               25
both being shot at. When you’re being shot at, the assumption is somebody is trying to

kill you.” “[Canizales and Windfield] tried to kill someone, but they weren’t

successful. . . . And they intended to kill that person. Well, [Bolden and Pride are] both

Hustla Squad. You have a motive of why [Canizales and Windfield are] out there. They

are trying to kill Hustla Squad, right? [¶] . . . [Bolden] told you very clearly they were

shooting at [Pride], but [Pride] turned around and ran and they’re shooting at him. And

then at one point [Bolden] tells you he runs out and they’re shooting at him. . . .

So . . . Windfield shot at both of them. That’s why you have a count for each one of the

attempts. [¶] There’s also this concept of kill zone within attempt[ed murder]. If they’re

shooting at someone and people are within the zone that they can get killed, then you’re

responsible for attempted murder as to the people who are within the zone of fire.[16] So

there were times when [Bolden] told you that he was with [Pride], near [Pride], [in] close

proximity to [Pride]. So they’re both within the zone of fire, the range of bullets that are

coming at them.”17 Neither defense counsel mentioned the kill zone theory, as both

insisted that the evidence did not prove beyond a reasonable doubt that their clients had

participated in the shootings.

       16 At oral argument, Windfield isolated this sentence from the rest of the
prosecutor’s argument and asserted that it was an incorrect statement of the law.
However, the prosecutor’s entire argument in regard to the kill zone theory was that
Bolden was so close to Pride, the primary target, that the jury could infer the intent to kill
him from the shots fired near both of them. This is not an incorrect statement of the law.

       17 How Canizales can categorize this as “stress[ing] th[e kill zone] theory in
closing argument” is beyond us.



                                              26
       Defendants first assert that there was insufficient evidence to support a kill zone

instruction. In so doing they rely on two cases in which just one bullet was fired. In

Stone, supra, 46 Cal.4th 131, just one bullet was fired into a crowd of “about 10.” (Id. at

p. 135.) Although not its holding,18 the High Court in Stone agreed with the appellate

court’s conclusion that “‘[t]here was no evidence . . . that [defendant] used a means to kill

the [alleged attempted murder victim] that inevitably would result in the death of other

victims within a zone of danger.’” (Id. at p. 138.) Here, in contrast, five bullets were

fired—under the kill zone theory, Pride was the primary target. Thus, the jury could

reasonably infer that Windfield used a means to kill Pride that inevitably would result in

the death of other victims within the zone of danger.

       The same is true of the other case defendants cite, People v. Perez (2010) 50

Cal.4th 222 in which the defendant fired one bullet into a group of eight people. (Id. at p.

225.) The High Court concluded that this did not constitute “a means of force calculated

to kill everyone in the group.” (Id. at p. 225.) Further, the court noted that the prosecutor

had conceded that the defendant “did not intend to ‘kill everybody in the group . . . .’”

(Ibid.) In contrast, in McCloud, supra, 211 Cal.App.4th at pages 788, 791, 794-795, 799-

800, whose language we have already criticized, the appellate court held that the kill zone

theory did not apply where 10 bullets were fired from a parking lot into a building with a

semiautomatic handgun, killing two and wounding a third who had been inside. Two

       18  The holding was that the mental state necessary for attempted murder was the
intent to kill a human being, not the intent to kill a specific human being. (Stone, supra,
46 Cal.4th at pp. 131, 134.)


                                             27
bullets had struck a car in the parking lot, five had struck the exterior wall of the building

and three had hit the window of the building, passed through it and hit the three wounded

victims. (Id. at p. 794.) There had been over 400 people present inside and just outside

the building and defendants had been charged with the attempted murder of 46 people.

(Ibid.) The appellate court stated, “[T]he record contains no evidence that [the

defendants] tried to kill 46 people with 10 bullets. Nor does the record contain evidence

that it would have been possible for them to kill 46 people with 10 bullets (given the type

of ammunition and firearm they used), or that they believed or had reason to believe it

was possible. . . . As in Perez, there is no evidence that [the defendants] ‘specifically

intended to kill two or more persons with [a] single shot’ [citation], much less that they

specifically intended to kill the 4.6 people per shot that would be necessary to support

[the] application of the kill zone theory.’” (McCloud at pp. 799-800, fn. omitted.)

       Defendants cite no authority for their proposition that the existence of a kill zone

“requires a defined area that can be saturated with the kind of lethal force the defendant

chooses to use.” Moreover, the jury had before it the measurements of the crime scene,

and detailed descriptions of the positioning of all parties by Bolden, Pride and other

eyewitnesses. It was for the jury to make the decision whether Windfield created a kill

zone when he fired and whether Bolden was in it. Defendants’ position, contrary to their

assertion, is not supported by Vang.

       In Vang, at least 50 bullet holes dotted the front of both units of a duplex, although

the majority were on the duplex occupied by the victims. (Vang, supra, 87 Cal.App.4th



                                              28
at p. 558.) The bullets had been fired by an AK series assault rifle and a shotgun. (Ibid.)

There was extensive gun fire damage throughout both units. (Ibid.) At a second

residence, the assault rifle had been used to spray bullets at an apartment. (Ibid.) Each of

the residences contained one primary victim. (Id. at p. 563.) The defendants conceded

that the evidence proved that they intended to kill these two primary victims, but because

the bullet holes centered around where these two could be seen from where defendants

fired, there was insufficient evidence of the defendants’ intent to kill the nine others in

the two residences. (Ibid.) The appellate court concluded, “The jury drew a reasonable

inference, in light of the placement of the shots, the number of shots and the use of high-

powered, wall-piercing weapons, that defendants harbored a specific intent to kill every

living being within the residence they shot up. [Citations.] Defendants’ argument might

have more force if only a single shot had been fired in the direction of where [the two

primary victims] could be seen.” (Id. at p. 564, italics added) There is no inference

derivable from Vang that firing five bullets into a crowd of people cannot result in the

inference that the defendants intended that all of those people be killed.

       Defendants assert that there was “no evidence of a group [they] intended . . . [¶]

. . . being attacked . . . .” They correctly point out that different witnesses gave different

estimations of the number of people in the area at the time of the shooting. However, it

was for the jury to resolve this conflict and determine the number of people, if there was

a kill zone and whether Bolden was in it. Bolden testified that Pride grabbed him after




                                              29
the first shot and the two began running.19 The fact that Pride began running after the

first bullet was fired, contrary to defendants’ assertion, did not somehow “undo” the kill

zone and defendants cite no authority so holding. We note that in Bland, the defendant

fired a hail of bullets “at the fleeing [victim’s] car.” (Bland, supra, 28 Cal.4th at p. 331.)

       Next, defendants criticize the language in the standardized instruction concerning

the kill zone. They assert that because it refers, at one point, to a “zone of harm” rather

than a “zone of lethal harm” it permitted the jury to infer the intent to kill from Bolden

being “within the zone of risk from [Windfield’s] stray shots.” However, defendants take

this singular reference out of context. To repeat, the instruction provided, in pertinent

part, “A person may intend to kill a particular victim or victims and at the same time

intend to kill everyone in a particular zone of harm or ‘kill zone.’ In order to convict a

defendant of the attempted murder of . . . Bolden, the People must prove that the

defendant not only intended to kill . . . Pride but also . . . intended to kill everyone within

the kill zone.” We disagree that this language invited the jury to infer the intent to kill

based merely on Bolden’s presence in a zone of non lethal harm. (Accord, People v.

Bragg (2008) 161 Cal.App.4th 1385, 1396.) Moreover, adding the word “lethal” would


       19   Although we acknowledge, as defendants point out, that in his pretrial
statement to police, Bolden said that Pride began running before the first bullet had been
fired, the jury could have relied on his trial testimony, which was that Pride did not begin
running until the first bullet was fired. Bolden also testified that after he began running,
Pride was running in the same direction as Bolden, adding, “He did some zigzags, and we
broke off.” Even if the jury credited Bolden’s pretrial statement, that did not necessarily
preclude a finding that there was a zone of danger and defendants cite no authority so
holding.


                                              30
do nothing to address defendants’ concern about the zone of risk of what defendants’

term Windfield’s “stray shots.” Specifically, what is meant by the term “stray bullets” in

the context of the kill zone theory? Is a stray bullet one which is directed at the primary

target, but comes closer to the attempted murder victim? Vang, supra, 87 Cal.App.4th at

page 564 illustrates our point. Despite the defendant’s assertion that most of the bullets

were directed at the primary target, who was standing at the front door of his duplex unit,

the appellate court concluded that there was substantial evidence to support an inference

that the defendants intended to kill everyone in the household. (Id. at pp. 558, 564.) The

same was true of the second home the defendants shot up—an apartment in which the

primary target and two family members were sitting near the front window, yet two

uninjured children in a bedroom were included within the collection of attempted murder

victims, even though, no doubt, they were endangered by “stray” bullets. (Id. at pp. 558,

564.)

        Finally, it must be remembered that the jury found that the attempted murder of

Bolden was willful, which required it to find that the defendants intended to kill him. We

disagree with defendants’ assertion that this instruction permitted the jury to find that

they willfully attempted to murder Bolden by intending only to kill Pride.

        Nor does Stone require a different result. In Stone, defendant fired at a group of

10 people. (Stone, supra, 46 Cal.4th at p. 135.) The information singled out one of those

ten people as the alleged attempted murder victim. (Ibid.) However, that person testified

that he did not think defendant pointed the gun at anyone in particular, it “had not been



                                             31
pointed ‘directly’ at him, but it was ‘near’ him,” and he believed it was fired just to scare

him and the others in the group—that he “really d[id]n’t think [defendant] was trying to

shoot anybody.’” (Ibid.) Based on the evidence, the prosecutor conceded to the jury

during argument that “he had not proven that defendant intended specifically to kill [the

alleged attempted murder victim] rather than someone in the group of 10 persons. He

argued, however, that an intent to kill someone, even if not specifically [the alleged

attempted murder victim] was sufficient for the jury to find defendant guilty of the

attempted murder . . . .” (Id. at p. 139.) The California Supreme Court concluded that

“[The allegation] that defendant intended to kill [the alleged attempted murder victim]

was problematic given that the prosecution ultimately could not prove that defendant

targeted a specific person rather than simply someone within the group. . . . [I]t would

have been sufficient to allege that defendant . . . attempted to murder a member of [the]

group . . . .” (Id. at p. 141.)20

       In contrast to the facts in Stone, more than one bullet was fired here, there was

evidence to support a finding that Windfield fired at Bolden and the prosecutor did not

concede that the evidence was insufficient to prove that the defendants intended

specifically to kill Bolden—in fact, the prosecutor argued just the opposite.




       20The holding in Stone was that “a person who intends to kill can be guilty of
attempted murder even if the person has no specific target in mind.” (Id. at p. 140.)


                                             32
       2. Sentencing

       a. Minimum Period of Parole for Windfield’s Attempted Murder Conviction

       As to each of the attempted murders, the sentencing court imposed 20 years for the

section 12022.53, subdivisions (c) & (e)(1) enhancements, and as to the section 186.22,

subdivision (b)(1)(C) enhancement, an additional term of 10 years was not imposed, but

an increase in the minimum parole eligibility on the life term for the crimes (§ 664, subd.

(a)) from 7 years (§ 3046, subd. (a)(1)) to 15 years was imposed pursuant to section

186.22, subdivision (b)(5). Under section 12022.53, subdivision (c), which was alleged

and found to be true here, a 20-year enhancement is added where the defendant

personally and intentionally discharged a firearm. Under section 12022.53, subdivision

(e)(1), which was also alleged and found to be true here, the 20-year enhancement of

subdivision (c) is to be imposed on any principal if a principal in the offense personally

and intentionally discharged a firearm and the defendant violated section 186.22,

subdivision (b). Specifically, the allegation in the Information was that “a principal

personally and intentionally discharged a firearm . . . within the meaning of Penal Code

section 12022.53(c) and (e)(1)” and the true finding was that “Windfield . . . personally

and intentionally discharged a firearm” and “a principal personally and intentionally

discharged a firearm” and that as to Windfield, the allegation and the true findings were

that the crimes were committed to benefit a gang, pursuant to section 186.22, subdivision

(b)(1)(C).




                                             33
       Windfield here contends that section 12022.53, subdivision (e)(2) prohibits the

imposition of both the 20-year enhancement and the increasing of the minimum parole

eligibility date, therefore, the latter is improper. That subdivision provides, “An

enhancement for participation in a criminal street gang pursuant to Chapter 11

(commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person

in addition to an enhancement imposed pursuant to this subdivision, unless the person

personally used or personally discharged a firearm in the commission of the offense.”

Windfield asserts that because the Information did not allege that Windfield had

personally and intentionally discharged a firearm, section 12022.53, subdivision (e)(2)

does not apply.

       Subdivision (j) of section 12022.53 states, “For the penalties in this section to

apply, the existence of any fact required under subdivision . . . (c) shall be alleged in the

accusatory pleading and . . . found to be true by the trier of fact.” (Italics added.) The

information here did not allege that Windfield had personally and intentionally discharged

a firearm, but it did allege that a principal personally and intentionally discharged a

firearm within the meaning of section 12022.53, subdivision (c), which provides for the

20-year enhancement for any person who in the commission of the offense personally

and intentionally discharges a firearm. This was notice to defendant that the People

intended to prove that someone who committed the attempted murders personally and

intentionally discharged a firearm. Was there any notice or due process necessity to

identify that person pre trial as Windfield? Windfield cites no authority so holding. The



                                              34
prosecutor argued to the jury concerning the firearm allegations attached to the attempted

murders, “As to . . . Windfield, his verdict forms will read that he personally discharged

the weapon that night. . . . Based on the evidence in this case, we know

that . . . Windfield personally did it, and that one of the principals, him, did it; so you find

those gun allegations to be true.” Counsel for Windfield objected neither to this

argument, nor to the verdict form that specifically named his client as the principal who

personally and intentionally discharged the firearm within the meaning of section

12022.53, subdivision (c), thus suggesting that he had notice that Windfield was that

principal. Although Windfield attempts to use the fall-back argument that his trial

attorney was incompetent for not objecting to the verdict form (he does not mention the

prosecutor’s argument, but the argument applies equally to it) had he objected, the

prosecutor could have amended the information to make the specific allegation that

Windfield personally and intentionally discharged the firearm and Windfield cites no

authority holding that she could not have.

       We disagree with Windfield that the situation here is like that in People v.

Mancebo (2002) 27 Cal.4th 735 (Mancebo). Therein, the sentencing court used a

multiple victim circumstance that had not been alleged, “nor was its numerical

subdivision . . . ever referenced in the pleadings” to sentence defendant to an alternative

and harsher sentence for the crime even though an entirely different set of facts

supporting such a sentence, which included defendant’s use of a gun, had been alleged

and found true by the jury. (Id. at pp. 730, 738-739, 741, 743.) In so doing, the



                                              35
sentencing court relied on the gun use to impose enhancements rather than to justify the

alternative and harsher sentence. (Ibid.) Noting that the provisions governing the

alternative and harsher sentence scheme required that “‘[f]or the penalties provided in

this section to apply, the existence of any fact required . . . shall be alleged in the

accusatory pleading and . . . found to be true by the trier of fact’” the California Supreme

Court concluded that in the absence of an allegation that the crimes involved multiple

victims, “[s]ubstitution of that unpleaded circumstance for the first time at sentencing as a

basis for imposing the [alternative and harsher sentence] violated the explicit pleading

[requirements] of [that provision].” (Id. at p. 743.) Additionally, since only the minimal

number of circumstances triggering the alternative and harsher sentence had been alleged

and proven, another part of the same provision required that those circumstances be used

to impose that sentence and not to impose punishment under any other law. (Id. at pp.

743-744.) The People asserted that the additional circumstance of multiple victims,

although not alleged and not found true by the jury, had, in fact, been alleged because the

information contained counts involving two different victims, for which the jury found

defendant guilty. (Id. at p. 744.) However, the High Court concluded that allowing this

to serve as a basis for the existence of the multiple victim circumstances, while consistent

with the requirement that “‘the existence of any fact required . . . shall be alleged in

the . . . pleading,” was inconsistent with that requirement “when read in conjunction with

[the requirement that] . . . [¶] . . . [i]f only the minimum number of

circumstances . . . have been pled and proved, . . . th[ey] shall be used as the basis for



                                              36
imposing the [alternative and harsher sentence].” (Id. at pp. 743-745, italics original and

added.) Therein lies the most significant difference between Mancebo and this case.

Section 12022.53 does not have a subdivision that is similar to the second one discussed

in Mancebo. Additionally, as the Supreme Court pointed out in Mancebo, “[T]he

information neither alleged multiple victim circumstances nor referenced [the portion of

the provision containing them]. In other words, no factual allegation in the

information . . . in the statutory language informed defendant that if he was convicted of

the underlying charged offenses, the court would consider his multiple convictions as a

basis for [alternative and harsher] sentencing . . . . Thus, the pleading was inadequate

because it failed to put defendant on notice that the People, for the first time at

sentencing, would seek to use the multiple victim circumstance to secure [an alternative

and harsher sentence] and use the circumstance of gun use to secure additional

enhancements . . . .” (Id. at p. 745.)

       Here, in contrast, the information contained the statutory language of section

12022.53, subdivision (c) and specifically referred to that section. Additionally, the

prosecutor argued to the jury that Windfield was the principal who had intentionally and

personally discharged the firearm and the jury was given a verdict form providing the

same, which it signed. Thus, unlike Mancebo, it was long before sentencing that the

possibility that Windfield could have his minimum parole eligibility date extended from 7

to 15 years because this was a gang crime and defendant intentionally and personally




                                              37
discharged a firearm and he could receive a 20-year enhancement for his intentional and

personal discharge of a gun was made known to him.

       Equally unhelpful to Windfield is People v. Botello (2010) 183 Cal.App.4th 1014,

in which the information contained no reference to section 12022.53, subdivision (e)(1)

and the jury returned no true finding as to it (id. at p. 1021), both, unlike here. In Botello,

the defendants, identical twins, successfully argued on appeal that there was insufficient

evidence that either personally discharged a firearm because the eyewitness was unable to

say which of the two fired the shots. (Id. at pp. 1017-1018, 1022) The appellate court

then determined whether it could rely “for the first time on appeal” on section 12022.53,

subdivision (e) in order to sustain the personal use firearm enhancements. (Botello, at p.

1022.) The People argued that the factual requirements of section 12022.53, subdivision

(e) had been met even though it had not been alleged or specifically found true by the

jury. (Botello, at p. 1022.) The appellate court concluded that under Mancebo and

People v. Arias (2010) 182 Cal.App.4th 1009, that it could not. (Botello, at p. 1024.)

Botello observed that Mancebo concluded that “the inadequacy of pleading identified by

the [California] Supreme Court was not the failure to plead facts that would support the

multiple-victim circumstance, but rather the failure to plead the circumstance itself.”

(Botello, at p. 1024.) Botello observed that Arias concluded that the allegation that an

attempted murder was willful, premeditated and deliberate, which were not in the

information, could not be used as a basis to impose the alternative and harsher sentence

for the crime where, even though the trial court instructed the jury to determine if the



                                              38
crime was accompanied by those mental states, the jury returned only a verdict of first

degree attempted murder. (Id. at p. 1026.) The Botello court held, “Like the [provisions]

in Mancebo and . . . in Arias, section 12022.53, subdivision (e)(1), has a specific pleading

and proof requirement[.] . . . [¶] Also as in Mancebo and Arias, there was a failure to

comply with the pleading requirement. . . . Here, the information . . . did not mention the

applicability of th[e] enhancements [alleged] through subdivision (e)(1), either by

designation of that provision or by description of the required circumstances . . . .” (Id. at

pp. 1026-1027.) As we have already stated, here, there was both a reference in the

information to section 12022.53, subdivision (e) and use of its precise language.

       b. Cruel and Unusual Punishment

       Windfield was sentenced in another case to three 25 years to life terms, plus a life

term with a 15 year minimum which was run concurrently with the time imposed in this

case. 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



                                             39
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 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 the rehabilitative ideal.’ [Citation.]

It reflects ‘an irrevocable judgment about [an offender’s] value and place in society,’ at



                                              40
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.’

[Citation.] . . . [¶] . . . [¶] . . . 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 incompetency’s 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, mandatory punishment

disregards the possibility of rehabilitation even when the circumstances most suggest it.



                                              41
[¶] . . . [¶] . . . [O]ur 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 ____, ____, ___ [132 S.Ct. 2464, 2465, 2466, 2468, 2471])

       Defendant 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, the appellate court

rejected an identical argument, holding, “while ‘[d]rawing the line at 18 years of 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 [v. Alabama (2012) 567 U.S. ___[132 S.Ct. 2455]], or

[People v.] Caballero [(2012) 55 Cal.4th 262].”




                                                42
                                                III.

                                            DISPOSITION

       Canizales’s conviction of first degree murder is reversed. The People have the

option of retrying him for this offense under the theory that he aided and abetted the

murder or accepting a reduction of his conviction to second degree murder. If the latter is

the case, the trial court is directed to resentence Canizales. The trial court is directed to

amend the abstract of judgment for Windfield by checking the box next to “7”, and

completing a determinate abstract of judgment which shows the 20-year term imposed for

each of the section 12022.53, subdivision (c) enhancements on the two attempted

murders. In all other respects the judgments are affirmed.

       CERTIFIED FOR PARTIAL PUBLICATION
                                                                         RAMIREZ
                                                                                           P. J.


We concur:

HOLLENHORST
                           J.

CODRINGTON
                           J.




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