Filed 8/19/14

                          CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                     DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                    E055062

v.                                                   (Super.Ct.No. FVA900999)

KEANDRE DION WINDFIELD et al.,                       OPINION

        Defendants and Appellants.




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

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

remanded for resentencing.

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

Appellant KeAndre Windfield.

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

and Appellant Harquan Johnson.




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

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

Wood, Deputy Attorneys General, for Plaintiff and Respondent.

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

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

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

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

The jury further convicted defendants of attempted premeditated and deliberate murder

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

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

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

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

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

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

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

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

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

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

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

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

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


                                              2
agree in part and direct some to be stricken. Both defendants assert that the abstracts of

judgment should be corrected and we agree and direct the trial court to correct

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

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

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

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

cruel and unusual punishment. We disagree as to Windfield and agree as to Johnson.

Therefore, we affirm Windfield’s judgment except as to corrections we will direct the

trial court to make. As to Johnson, we affirm his convictions and remand to the

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

58 Cal.4th 1354 (Gutierrez).

                                              FACTS

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

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

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

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

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

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

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

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

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



                                              3
spending time together. The attempted murder victim had a “friends with benefits”

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

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

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

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

shoot up Ramona” and “kill those dudes.” MM told the murder victim that the latter was

drunk, that he was not going to do the things the murder victim said he wanted to do and

MM did not want to fight the murder victim over this. The murder victim, still angry at

MM, took off his sweater, pulled out a gun and held it down at his side. A van pulled up

and parked across the street. Inside were Windfield’s sister, the owner of the van and her

minor children, Johnson, Windfield and other members of Ramona Blocc. The owner of

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

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

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

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

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

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

sister’s face. MM and the attempted murder victim told the murder victim that he was

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

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

talking.



                                            4
       In the van on the way to Windfield’s home, Windfield’s sister yelled to Johnson

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

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

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

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

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

that they were returning to the scene of the chase.

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

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

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

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

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

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

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

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

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

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

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

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

victim accompanied him towards the alley behind the apartment complex. Nikki was five

to six feet away from them and she approached them and said something, but the



                                             5
attempted murder victim did not hear what she said. As the murder victim and the

attempted murder victim walked through a corridor in the apartment complex, each was

hit by bullets—the attempted murder victim with one and the murder victim with 10 to

his front and back, including to his head while the gun was being held to it, several of

which shots were fatal. As the attempted murder victim limped away, he saw Nikki

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

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

hospital. When he arrived there, he saw MM.

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

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

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

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

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

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

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

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

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

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

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

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

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



                                             6
said she could not believe that the murder victim had put a gun in her face and he has to

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

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

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

                                    ISSUES AND DISCUSSION

       1. Admission of Nikki’s Preliminary Hearing Testimony

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

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

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

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

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

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

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

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

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

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

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

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

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

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

thereafter to make sure that Nikki was still there. In October 2010, the investigator was



                                             7
asked to track Nikki down. At that time, the investigator ran Nikki through all the

available automated systems in California and in the state where Nikki had been

relocated, including the Department of Motor Vehicles, CLETS and Accurint. The

investigator contacted an investigator for the prosecutor’s office where Nikki had

relocated and the latter checked all the addresses the former had found and rechecked a

couple of them two to three weeks later, in October and November 2010. Nikki had not

been living at her last known address for 30 days before contact was made with the

manager at the apartment complex where she had lived. The investigator for the local

prosecutor’s office checked with Nikki’s relatives in the area and they had not seen or

heard from Nikki for several weeks prior to the contact. The investigator for the local

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

she was living in the place where she had relocated and was informed that she had failed

to appear for her last couple of appointments with the agency and to pick up funds it had

for her. In November 2010,2 the investigator called Nikki’s friend, Jasmine, who said

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

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

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

that she had not heard from Nikki and had no contact information for her. Jasmine,

again, told the investigator that she would have Nikki call the investigator if Nikki

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



                                             8
contacted her. The investigator also called the case agent in November 2010,3 and asked

him to contact her if he heard anything on the street about Nikki’s whereabouts. In

January, April and May 2011, the investigator reran Nikki through the available

automated systems in California and the state to which Nikki had relocated.

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

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

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

       3   See footnote two, ante.

       4  Windfield asserts that the case agent gave conflicting testimony about when his
search began. We do not, however, share that view. When asked if he could relate the
beginning of his search to a particular month, he said it began during the time of the other
trial involving Windfield. In response to a question, he then said he began to talk to the
people mentioned after footnote four in the text of this opinion in January or February of
2010. The same judge presided over both of Windfield’s trials, and the other trial began
in April 2011. The trial court then expressed confusion about the case agent’s reference
to the “other trial” and the agent’s testimony that he began speaking to people about
Nikki in 2010, by asking, “What trial in 2010?” The following colloquy occurred
between the case agent, the trial court and counsel for Johnson,

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


                                              9
for more than three months, he spoke to 50 or 60 people in Rialto and surrounding

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

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

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

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

before the hearing. Within six or seven months before the hearing, the case agent

searched all the places in San Bernardino and Riverside Counties where people said

Nikki would reside or frequent on a regular basis. Six months before the hearing, the

case agent contacted one of Nikki’s aunts, who lived in San Bernardino, but got no

information. On and off since January 2011, the case agent had checked the Web site,

Accurint, and Nikki’s name came up at several locations linked to family members. The


[footnote continued from previous page]

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


                                             10
case agent and another detective went to those locations and staked them out several

times to see if they could determine Nikki’s whereabouts. From three months before the

hearing, the case agent tried just about every day to contact Nikki by telephone and by

contacting law enforcement agencies. Approximately two months before the hearing, he

put Nikki’s information into the C.I.I. database, with a flyer, so that if she were stopped

by the police, the officer who stopped her would have the information that Rialto Police

Department should be contacted. The flyer was still active at the time of the hearing.

Within the last two weeks before the hearing, the case agent visited another of Nikki’s

aunts and he contacted several other family members who lived locally. The aunt dialed

a phone number for Nikki’s mother and sister in another state and the case agent spoke to

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

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

Colorado6 where Nikki’s mother and sister lived. Two weeks before the hearing, the case

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

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


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

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


                                              11
to a second other state, because she had been a passenger in a car that had been stopped

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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



                                              12
as soon as she was relocated in October 2009. In fact, the agent testified that she had

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

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

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

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

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

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

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

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

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

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

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

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

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

criticized him for that.

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

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

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

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

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

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


                                             13
flee, the prosecution has no obligation to take preventative measures to stop that witness

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

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

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

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

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

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

Defendants also criticize the prosecution for not contacting hospitals and medical

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

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

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

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

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

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

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

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

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

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

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

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

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



                                              14
her and the other women in the apartment to lie to the police and say that Nikki was

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

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

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

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

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

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

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

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

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

determine if her preliminary hearing testimony was believable.

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

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

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

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

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

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

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

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

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

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



                                             15
Windfield’s sister’s face before the shootings. He told the case agent that Windfield’s

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



                                             16
testified that Johnson told her that at the scene of the shooting, he had hopped a wall to

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nikki for money.

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

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

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

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



                                             17
rested against his head. She admitted telling the first detective who interviewed her five

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

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

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

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

office in exchange for her help with the investigation.

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

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

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

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

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

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

pockets had not been turned out.

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

everything she testified to at the preliminary hearing and more.

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

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

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

against his head.

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

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



                                             18
opined that the shootings benefitted Ramona Blocc because they were in retaliation for

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

rejected.

       2. Insufficiency of the Evidence

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

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

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



                                             19
defendants’ guilt for the attempted murder of the attempted murder victim was kill zone.

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

specific victim and/or victims and at the same time intend to kill everyone in a particular

zone of harm or ‘kill zone.’ In order to convict the defendant of the attempted murder of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When the defendant escalate[s] his mode of attack from a single bullet aimed at A’s head



                                              20
to a hail of bullets . . . , the defendant concurrently intended to kill everyone in A’s

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

crime against a primary victim create a zone of harm around the victim, the factfinder can

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

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

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

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

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

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

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

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

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

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

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

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


       9  Defendants incorrectly cite People v. Smith (2005) 37 Cal.4th 733 (Smith) as a
kill zone case. It was not. Kill zone instructions were not given in Smith and the
California Supreme Court stated, “We thus have no occasion here to decide under what
factual circumstances, if any, the firing of a single bullet might give rise to multiple
convictions of attempted murder under Bland’s kill zone rationale.” (Id. at p. 746, fn. 3.)
Therein, the court held that there was sufficient evidence that the defendant, who fired a
single bullet into a car through the rear window at his former girlfriend, knowing that her
baby was in his line of fire, from a distance of one car length, intended to kill the child,
even though no evidence was presented that he bore any ill will towards the child. (Id. at
pp. 736, 742-743, 746-747.)


                                               21
employed in the defendant’s attack on the primary target that the defendant intentionally

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

p. 330.)

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

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



                                             22
when he did appear they fired at close range a number of well-targeted shots designed to

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

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

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

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

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

there was no evidence that Johnson and Windfield waited specifically for the murder

victim. Even if they did, that fact would not detract from the determination whether “the

nature and scope of the attack” was such that the jury could reasonably conclude that they

intended to ensure harm to the murder victim by harming everyone in his vicinity. (See

Bland, supra, 28 Cal.4th at pp. 313, 329.) We also disagree with defendants’

categorization of the shots as “well-targeted, designed to hit and kill only [the murder

victim]” under the circumstances here. The attempted murder victim testified that just

before the shots began, he and the murder victim were walking side by side, then he

heard the first shot or shots, he told the murder victim to hold up, then both turned and

ran into each other, and while turned, facing each other, and probably as he was turning,

he got shot. Based on this, and his testimony that when he went down after being shot,

he thought the murder victim was still standing and the latter fell on top of him, it is most

likely that he got hit before the murder victim did, while he and the murder victim were

very close to each other. He testified that when the shooting began, the muzzle flashes

were 15 feet from him, but as the shooting progressed the shooters got within six to eight



                                             23
feet of him. In her preliminary hearing testimony, Nikki said that when Johnson and

Windfield approached the murder victim, the attempted murder victim was holding him

tightly by having one of his arms over the murder victim’s shoulder10 and after that,

while Johnson and Windfield were shooting at the murder victim, the attempted murder

victim was trying to cover or shield the murder victim, by standing between him and the

defendants, and he moved his body as they moved, so they couldn’t shoot the murder

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

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

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

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

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

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

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

victim was in the line of fire. It is obvious that the attempted murder victim was either

hit before the murder victim, or collapsed to the ground before the murder victim did.

Moreover, defendants’ attack on Nikki’s testimony that clearly established that the

attempted murder victim was in the line of fire because, according to them, she “never

gave a reliable description of precisely where the shooters were positioned when [the

murder victim] was shot” is specious. She described, with great precision, where the


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


                                             24
attempted murder victim was in relation to the murder victim and the attempted murder

victim’s testimony corroborated at least part of this description (i.e., he testified that he

told the murder victim to hold up as the first shot or shots were fired and this was

consistent with Nikki’s description that he was holding back the murder victim, and he

testified that the two ran into each other as he was hit with the bullet, which was not

inconsistent with her perception that he was shielding the murder victim during the

shooting). Moreover, on a sufficiency of the evidence claim, we do not discount a

witness’s testimony unless it is so improbable as to be unworthy of belief (People v.

Thornton (1974) 11 Cal.3d 738, 784, overruled on other grounds in People v. Flannel

(1979) 25 Cal.3d 668, 685, fn. 12), and Nikki’s was not.

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

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

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

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

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

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

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

138.)

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

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

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



                                              25
they were “being careful not to shoot” the attempted murder victim, they did a lousy job,

taking him down before the murder victim. Moreover, we doubt that the defendants in

Vang had any particular desire to kill the daughter of their intended target or to injure his

wife, or to do either to his other two children who were not injured, but, nonetheless were

attempted murder victims when the defendants unleashed a hail of bullets at their house

due to gang rivalry. (Vang, supra, 87 Cal.App.4th at p. 558.) The same is true of the

wounded mother and uninjured siblings of another intended victim at their apartment.

(Ibid.) In response to the defendants’ claim that there was insufficient evidence that they

intended to kill anyone except the two targets, the Court of Appeal held, “Defendants’

argument might have more force if only a single shot had been fired in the direction of

where [the two intended targets] could be seen.” (Id. at p. 564.) In Bland, the California

Supreme Court approved the language in Vang that the fact that the defendants did not

see some of their victims “‘who were present and in harm’s way’” somehow negated the

intent to kill them. (Bland, supra, 28 Cal.4th at p. 330.) In Adams, the appellate court

similarly upheld convictions of attempted murder against victims who were not seen by

the defendant, but who were placed in danger of death by his actions. The court

reasoned, “[t]he theory imposes attempted murder liability where the defendant

intentionally created a kill zone in order to ensure the defendant’s primary objective of

killing a specific person or persons despite the recognition, or with acceptance of the fact,

that a natural and probable consequence of that act would be that anyone within that zone

could or would die.” (Adams, supra, 169 Cal.App.4th at p. 1023.) As stated before, the



                                             26
kill zone theory permits a jury to reasonably infer the intent to kill based on the nature

and scope of the attack. The defendant’s particular feelings towards the nontarget

attempted murder victim—whether good, bad, indifferent or nonexistent, has nothing to

do with it, if the defendant created the kill zone and the attempted murder victim was in

it. This case involved not only Bland’s “hail of bullets,” but at very close range.

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

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

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

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

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

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

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

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

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

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

accomplishing the killing of that victim. Under such circumstances, a rational jury could

conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted

victim, but also all others he knew were in the zone of fatal harm.”11 (Smith, at pp. 745-

746.) At the same time, the Smith court quoted Bland’s language that, “‘[The kill zone


       11As already stated Vang and Adams have held that it is not necessary for the
defendant to be aware of the presence of the actual murder victim.


                                             27
theory] is simply a reasonable inference the jury may draw in a given case: a primary

intent to kill a specific target does not rule out a concurrent intent to kill others.’

[Citation.]” (Smith, at p. 746.)

       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.)




                                               28
       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.

As we have already stated, in Stone, supra, 46 Cal.4th at pages 131, 136, and 137, the

high court said of Bland, “The evidence supported a jury finding that the defendant

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

two who survived. [Citation.] . . . We summarized the rule that applies when an

intended target is killed and unintended targets are injured but not killed. . . . [¶] . . . [I]f

a person targets one particular person, . . . a jury could find the person also, concurrently,

intended to kill—and thus was guilty of the attempted murder of—other, nontargeted

persons.” (Some italics original, some added.) As we have already stated, in her dissent

in Smith, supra, 37 Cal.4th at pages 755 and 756, Justice Werdegar said, “A kill

zone . . . analysis . . . focuses on (1) whether the fact finder can rationally infer from the

type and extent of force employed in the defendant’s attack on the primary target that the

defendant intentionally created a zone of fatal harm, and (2) whether the nontargeted

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

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

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



                                               29
the Fifth District said, “[T]he . . . [theory] permits a rational jury to infer the required

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

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

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

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

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

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

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

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

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

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

in a given case . . . .”

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

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

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

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

       3. Jury Instruction Error

               a. Provocation as to the Attempted Murder

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

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

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



                                               30
provocation, if any, are for you to decide. [¶] If you conclude that the defendant

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

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

whether the defendant committed murder or manslaughter.”

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

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

reasonableness of the provocation, while CALCRIM No. 522 does not.12

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

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

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

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

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

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

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

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

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

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

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




       12 See People v. Valentine (1946) 28 Cal.2d 121, 132, People v. Fitzpatrick
(1992) 2 Cal.App.4th 1285, 1295, 1296 and People v. Padilla (2002) 103 Cal.App.4th
675, 678.


                                             31
Supreme Court decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d

450.)

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

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

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

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

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

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

(People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) However, defendants cannot carry

their burden. In convicting them of first degree murder, the jury necessarily rejected the

possibility that any provocation that existed reduced the first degree murder to second

degree murder. This is true for either theory of first degree murder that was available to

the jurors, whether premeditated and deliberate or lying in wait, as the latter, the jury was

instructed, required “a state of mind equivalent to deliberation or premeditation.”

Because the murder and the attempted murder were committed simultaneously, by the

same acts and under the same circumstances and were interconnected by the use of the

kill zone theory as to the latter, there was no basis for the jury to conclude that some

provocation reduced the attempted murder to nondeliberate, nonpremeditated attempted

murder, but did not reduce the murder to second degree murder.




                                               32
       4. Gun Allegations as to the Attempted Murder

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

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

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

defendants had personally and intentionally discharged a firearm which caused great

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

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

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

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

were arraigned on this charging document while represented by counsel. On June 1,

2011, during voir dire, the trial court read the information to the prospective jurors,

omitting any references to causing death to the attempted murder victim. On June 7,

2011, the seventh day of trial, when voir dire was still occurring, the prosecutor told the

trial court that she would be omitting from the charging document the great bodily injury

to the attempted murder victim allegation, pursuant to section 12022.7 and count 4,13 and

would be adding the allegation that the attempted murder was willful, premeditated and

deliberate. She said she would be filing an amended information to reflect these changes.

The following day, the prosecutor filed what was entitled the third amended information,

although our review of the record before this court and the superior court record shows


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


                                             33
that no second amended information was ever filed. The so-called third amended

information alleged, in connection with the charged attempted murder, that Johnson and

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

[the murder victim] within the meaning of Penal Code section 12022.53[, subdivision]

(d) . . . .” It also alleged as to this count that “a principal personally and intentionally

discharged a firearm . . . , which proximately caused death to [the murder victim] within

the meaning of Penal Code sections 12022.53[, subdivisions] (d) and (e)(1).” It also

alleged that the attempted murder had been committed for the benefit of a gang. Finally,

it alleged that the victim of this count was the murder victim. The prosecutor’s opening

statement is not part of the record before this court.

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

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

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

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

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

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

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

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

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

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

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



                                               34
allegations under section 12022.53, subdivisions (d) and (e)(1), specifying that the

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

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

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

described below.

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

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

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

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

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

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

principal used and intentionally discharged a firearm proximately causing great bodily

injury to the attempted murder victim.

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

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

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

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

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

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

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

principal when any other principal personally and intentionally discharges a firearm



                                            35
proximately causing great bodily injury) when that person committed the crime for the

benefit of a street gang.

       In making findings that defendants personally used and another principal

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

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

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

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

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

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

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

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

intentionally discharged a firearm causing great bodily injury and another principal

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

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

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

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

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

jury’s findings14 any references to them.




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


                                              36
       4. Sentencing

              a. Windfield’s Sentence as Cruel and Unusual

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

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

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

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

2455] (Miller).

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

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

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

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

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

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

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

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

[C]hildren have a “‘lack of maturity and an underdeveloped sense of responsibility,’”

leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] . . . [They]

‘are more vulnerable . . . to negative influences and outside pressures,’ including from

their family and peers; they have limited ‘contro[l] over their own environment’ and lack

the ability to extricate themselves from horrific, crime-producing settings. [Citation.]

. . . [A] child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’



                                              37
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 altogether

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

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

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

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

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

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

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

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



                                              38
parole sentence applicable to an adult—these laws prohibit a sentencing authority from

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

       Windfield contends that scientific literature shows that the features of juveniles

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

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



                                              39
has determined that 18 is the age at which a person is considered an adult. (People v.

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

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

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

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

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

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

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

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

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

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

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

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

Caballero [(2012) 55 Cal.4th 262].” Recently, in Gutierrez, supra, 58 Cal.4th at page

1380, the California Supreme Court endorsed the distinction drawn between those under

the age of 18 at the time of the crime and those 18 or older.

               b. Johnsons’s Sentence as Cruel and Unusual

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

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

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

parole (People v. Caballero (2012) 55 Cal.4th 262, 295 (Caballero)), an appellate court



                                                40
concluded that a sentence of 84 years to life is the same (People v. Mendez (2010) 188

Cal.App.4th 47, 63 [cited with approval in Caballero] and in Argeta, supra, 210

Cal.App.4th at p. 1482), the appellate court concluded that a term of at least 75 years in

prison for a defendant who was 15 years old at the time of the crime “likely requires that

he be in prison for the rest of his life” and the People therein conceded that a minimum

sentence of 100 years was the functional equivalent of a life sentence without parole.

Johnson also correctly points out that the sentencing court imposed sentence without

individualized consideration of him as a person. There was no sentencing memorandum

submitted by counsel for Johnson,15 the probation report contained scant information

about Johnson personally and neither counsel for Johnson nor the sentencing court

addressed this topic during sentencing. While we recognize that Johnson did not object

below to the imposition of this sentence, certainly, an argument could be made that the

failure to invoke Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2011] on Johnson’s

behalf could amount to incompetency of trial counsel.16

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

       16 To avoid such an argument, we will not rely on the forfeiture rule (People v.
Bradford (1997) 15 Cal.4th 1229, 1314) and will address Johnson’s argument on its
merits.
        We also note that confronted with the same rule in Gutierrez, supra, 58 Cal.4th at
pages 1354, 1368, the California Supreme Court noted, “[Although a]t sentencing,
Gutierrez did not . . . mention the Eighth Amendment, this is unsurprising because at the
                                                                 [footnote continued on next page]


                                            41
        At the same time, we note that the mandatory aspect of Johnson’s sentence was 50

years to life—that this trial court exercised its discretion, citing the fact that the crimes

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

attempted murder.

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

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

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

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

It prevents taking into account the family and home environment that surrounds [the

defendant]—and from which [the defendant] cannot usually extricate [him-or her-]self—

no matter how brutal or dysfunctional. It neglects the circumstances of the homicide

offense, including the extent of [the defendant’s] participation in the conduct and the way

familiar and peer pressures may have affected [the defendant]. Indeed, it ignores that [the

defendant] might have been charged and convicted of a lesser offense if not for

incompetencies associated with youth . . . .” a sentence from taking account of an



[footnote continued from previous page]
time the [United States Supreme Court] had not yet granted review in Miller and no court
had even held that a mandatory sentence of life without parole for juveniles convicted of
homicide was unconstitutional. After Miller was decided, Gutierrez promptly asserted
his Eighth Amendment claim in the Court of Appeal, . . . and he now reasserts that claim
in this court. Given these circumstances, and because his Eighth Amendment challenge
involves a question of law, we exercise our discretion to consider it here. [Citation.]”
We note that, like in Gutierrez, Miller had not been decided at the time Johnson was
sentenced, and Johnson is asserting his Eighth Amendment right in this court. (See also,
fn. 15, ante.)


                                              42
offender’s age and wealth of characteristics and circumstances attendant to it.” (Miller,

supra, 567 U.S. at pp.___ [132 S.Ct. at pp. 2467-2468] Miller concluded that a sentence

of life without the possibility of parole or its functional equivalent was appropriate for

“the rare juvenile offender whose crime reflects irreparable corruption.” (Id. at p.___

[132 S.Ct. at p. 2469].) In Caballero, supra, 55 Cal.4th at page 268, where a juvenile

was sentenced to 110 years to life for nonhomicide crimes, the California Supreme Court

held that “the state may not deprive [juveniles] at sentencing of a meaningful opportunity

to demonstrate their rehabilitation and fitness to reenter society in the future.”

       More recently, however, in Gutierrez, involving two 17 year old defendants

convicted of special circumstances murder in two different cases, the California Supreme

Court held that section 190.5(b), which prescribes the sentences for juveniles convicted

of special circumstance murder, does not embody a presumption in favor of life without

the possibility of parole, as doing so would run afoul of Miller. Our high court reasoned,

“Under Miller, a state may authorize its courts to impose life without parole on a juvenile

homicide offender when the penalty is discretionary and when the sentencing court’s

discretion is properly exercised in accordance with Miller. Unlike the sentencing laws at

issue in Miller, section 190.5(b) is discretionary and does not mandate life without parole

for juvenile homicide offenders.[17] California’s individualized, discretionary sentencing

       17   The court observed that “‘the factors stated in section 190.3 are available . . . to
grant leniency, as guidelines under section 190.5 Because those factors allow the court to
take into account any mitigating circumstances which extenuates the gravity of the
crime . . . , by extension the criteria stated under California Rules of Court, rule 423
[(now rule 4.423)] are also available as guidelines for the court’s exercise of discretion.’
                                                                    [footnote continued on next page]


                                              43
of juvenile homicide offenders differs in significant ways from the mandatory sentencing

scheme at issue in Miller. Nevertheless, in light of Miller’s reasoning, a sentence of life

without parole under section 190.5(b) would raise serious constitutional concerns if it

were imposed pursuant to a statutory presumption in favor of such punishment. [¶] At

the core of Miller’s rationale is the proposition—articulated in Roper, amplified in

Graham, and further elaborated in Miller itself—that constitutionally significant

differences between children and adults ‘diminish the penological justifications for

imposing the harshest sentences on juvenile offenders’ [Citation.] The high court said in

plain terms that because of ‘children’s diminished culpability and heightened capacity for

change, we think appropriate occasions for sentencing juveniles to this harshest possible

penalty will be uncommon.’ [Citation.] ‘That is especially so because of the great

difficulty . . . of distinguishing at this early age between “the juvenile offender whose

crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose

crime reflects irreparable corruption.” [Citations.]’ [Citation.] [¶] Reading section

190.5(b) to establish a presumption in favor of life without parole . . . is in serious tension

with the foregoing statements in Miller. . . . ‘Treating [life without parole] as the default

sentence takes the premise of Miller that such sentences should be rarities and turns that

premise on its head . . . .’ [¶] . . . [¶] . . . [A] sentencing court has discretion under



[footnote continued from previous page]
[Citation.]” (Gutierrez, at p. 1370.) The Supreme Court further concluded that “Section
190.5(b) authorizes and indeed requires consideration of the Miller factors . . . .” (Id. at
p. 1387.)


                                              44
Miller to decide on an individual basis whether a 16- or 17-year old offender is a ‘“rare

juvenile offender whose crime reflects irreparable corruption.”’ [Citation.] . . . [¶]

Further, Miller made clear that its concerns about juveniles’ lessened culpability and

greater capacity for reform have force independent of the nature of their crimes. . . .

Miller said, ‘the distinctive attributes of youth diminish the penological justifications for

imposing the harshest sentences on juvenile offenders, even when they commit terrible

crimes.’ [Citation.] . . . Graham [v. Florida (2010) 560 U.S. 48] and Roper [v. Simmons

(2005) 543 U.S. 551] likewise indicate that the mitigating features for youth can be

dispositively relevant, whether the crime is a nonhomicide offense or a heinous murder

punishable by death if committed by an adult. [Citations.] . . . To presume that [a broad

and diverse range of first degree murder offenses] committed by 16 and 17 year olds

merit a presumptive penalty of life without parole cannot be easily reconciled with

Miller’s principle that ‘the distinctive attributes of youth [that] diminish the penological

justifications for imposing the harshest sentences on juvenile offenders’ are not ‘crime-

specific.’ [Citation.] [¶] . . . Miller made clear that its concerns about imposing life

without parole have applicability whatever the age or crime of a juvenile offender.”

(Gutierrez, at pp. 1379-1381.) Pointing out that while the sentencing court in each of the

two defendants’ cases “understood it had a degree of discretion in sentencing the

defendant . . . neither court made its sentencing decision with awareness of the full scope

of discretion conferred by section 190.5(b) or with the guidance set forth in Miller and

this opinion for the proper exercise of its discretion” the Supreme Court remanded both



                                             45
cases for resentencing, as the record did not clearly indicate that the sentencing courts

would have imposed the same sentences they did even if they had been aware of the full

scope of their discretion. (Id. at pp. 1390-1391, italics added.) Although there are

obvious differences between the context of the cases in Gutierrez and the case here, the

language in Gutierrez, which we reiterate above, sends a message, which is clear to us,

that where the functional equivalent of a life term without parole is imposed on a 17 year

old convicted of murder, the sentencing court must consider the Miller factors.18 Unless

the record demonstrates that the sentencing court would have arrived at the same

sentence had it considered the Miller factors, remand is appropriate for such

consideration.19




       18  We are aware that the California Supreme Court has granted review in two
cases which address the applicability of new section 3051’s provision for a parole hearing
during the twenty-fifth year of a youthful offender’s service of a 25-years-to-life term on
a claim that the Miller factors had not been considered by the sentencing court. (See In
re Alatriste (review granted Feb. 19, 2014, S214652) and In re Bonilla (review granted
Feb. 19, 2014, S214960).) However, presumably all three appellate counsel in this case
were also aware of these cases, and chose, at oral argument, not to broach the subject of
the applicability of section 3051. Neither will we.

       19  Notably absent from the People’s oral argument was any assertion that the
language in Gutierrez is inapplicable to this case. Rather, the People relied on their
waiver argument, an assertion that mandating the sentencing court’s consideration of the
Miller factors should be the result of a habeas petition, rather than this appeal, and an
assertion that “all the facts” pertinent to Johnson’s sentence were presented during the
fitness hearing. As to the latter, we draw the People’s attention to the remarks of Justice
Liu in his concurrence in Gutierrez, supra, 58 Cal.4th at page 1394.


                                             46
                  c. Correction of the Abstracts of Judgment

       Defendants correctly point out that their abstracts incorrectly state that the dates of

the offenses were 2011, when they were 2009. We will direct the trial court to correct

Windfield’s and, when Johnson is resentenced, to correctly note the date in his abstract.

                  d. Pronouncement of Sentence on Johnson

       Because we are remanding Johnson’s case for resentencing, as stated infra, we

need not address his assertion that the trial court did not actually sentence him, although

it clearly did.

       Next, Johnson claims the sentencing court did not specify as to which

enhancement it was imposing the 25-year-to-life term. The final charging document

stated that the enhancement allegation that Johnson personally discharged a firearm

causing death to the murder victim was brought pursuant to section 12022.53, subdivision

(d) and the allegation that a principal personally discharged a firearm proximately

causing death to the murder victim was brought pursuant to section 12022.53,

subdivisions (d) and (e). The enhancement allegation that Johnson personally discharged

a firearm causing great bodily injury to the attempted murder victim, after amendment20

was brought pursuant to section 12022.53, subdivision (d) and the allegation that a

principal personally discharged a firearm which proximately caused great bodily injury to

the attempted murder victim, after amendment21 was brought pursuant to section

       20   See pages 33 and 34, ante.

       21   See pages 34 and 34, ante.


                                               47
12022.53, subdivisions (d) and (e). About two weeks after it had pronounced sentence,

the court, without appearances from any of the parties, but apparently upon the request of

someone, sought to, what it termed “address” matters not addressed due to “clerical

error” and specified that it was imposing the 25-year- to-life enhancement under

“12022.53(d)/e(1)” and “strik[ing] the separate . . . 12022.53(d) enhancement.”

       Johnson here contends that what the court did was not correct a clerical error, but

declare something done which was not done. We disagree. Section 12022.53,

subdivision (f) permits the imposition of only one enhancement under section 12022.53,

subdivisions (d) or (e)(1) “for each crime.” The court, when it originally imposed

sentence, did exactly that. It just failed to state which of the two identical 25-year-to-life

terms it was imposing. It did so less than two weeks later. Johnson has nothing about

which to complain.

              e. Custody Credits for Johnson

       The parties agree that the sentencing court shorted Johnson by one day in its

calculation of his presentence custody credits. When Johnson is resentenced, the court

below should take note of this fact and award him an additional day.

                                            DISPOSITION

       The convictions for both defendants and Windfield’s sentence are affirmed, with

the exception that the trial court is directed to strike from the jury’s true findings any

references to the defendants or principals personally using a firearm or personally and

intentionally discharging a firearm. The trial court is directed to amend Windfield’s



                                              48
abstract of judgment to show that the crimes were committed in 2009, not 2011, as his

abstract currently states and, upon resentencing Johnson, to correctly note in his abstract

the date of commission of the crimes and the awarding of an additional day of

presentence custody credits, the latter of which should also be reflected in the minutes of

the court. Johnson’s case is remanded for resentencing for consideration of the Miller

factors, as set forth in Gutierrez, supra, 58 Cal.4th at pages 1388, 1389.

       CERTIFIED FOR PUBLICATION
                                                                RAMIREZ
                                                                                        P. J.


We concur:

MILLER
                          J.

CODRINGTON
                          J.




                                             49
