P. v. Arceo

Filed 6/26/08 P. v. Arceo CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge. Modified and, as modified, affirmed with directions.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie Brenan and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Ramon Arceo appeals from the judgment entered following his convictions by jury on two counts of attempted willful, deliberate, and premeditated murder (Pen. Code, 664, 187; counts 1 & 2) with, as to each count, findings that appellant personally used a firearm (Pen. Code, 12022.53, subd. (b)), personally discharged a firearm (Pen. Code, 12022.53, subd. (c)), and committed the offense for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)(C)), and with, as to count 1 only, a finding that appellant personally discharged a firearm causing great bodily injury (Pen. Code,  12022.53, subd. (d)), and following his convictions on two counts of assault with a firearm (Pen. Code,  245, subd. (a)(2); counts 3 & 4) with, as to each count, findings that appellant personally used a firearm (Pen. Code,  12022.5, subd. (a)), and committed the offense for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)(C)), and with, as to count 3 only, a finding that he inflicted great bodily injury (Pen. Code,  12022.7). The court sentenced appellant to prison for an unstayed determinate term of 40 years, plus two consecutive terms of life with the possibility of parole, plus 25 years to life for the Penal Code section 12022.53, subdivision (d), enhancement pertaining to count 1. Appellant claims the trial court committed trial and sentencing errors. We will modify the judgment and, as modified, affirm it with directions.

FACTUAL SUMMARY

1. Daniel P.s Testimony

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 6:35 p.m. on March 29, 2006, Daniel P. (who was 13 years old at the time of the February 2007 trial) was in the area of 15th and Cedar in Long Beach. Daniel P. testified he saw two Samoans passing by, then these guys went to go chase them (RT/31) and Daniel P. heard one shot. When Daniel P. first saw the Samoans, they were walking close to each other on the sidewalk. Daniel P. testified at trial that he did not see the shooter.

Daniel P. also testified he remembered telling Long Beach Police Officer Manuel Banuelos that the suspect yelled at the Samoans, Whats up, homies. Daniel P. further testified he told Banuelos that Daniel P. saw the shooter pull a handgun with his right hand under his left armpit and take one shot at the Samoans, but Daniel P. recanted that testimony at trial. Daniel P. was afraid to testify at trial.

2. Officer Banueloss Testimony

Banuelos testified as follows. About 6:35 p.m. on March 29, 2006, Banuelos responded to a shooting in which the victim was at 1749 Cedar, and the shooting involv[ed] the address of 1620 Cedar Avenue. Banuelos interviewed Daniel P. that day. Daniel P. saw a person shoot at the two Samoans.

Banuelos also testified that Daniel P. told Banuelos the following. Daniel P. was standing in front of his house when he saw two male Samoans in the middle of the street and north of Daniel P.s location. Daniel P. also saw a male Hispanic in the middle of the street and just south of the Samoans. The Hispanic yelled at the Samoans saying Whats up, homies? The Samoans answered and the suspect took one shot at the Samoans. Daniel P. clearly stated to Banuelos that Daniel P. saw the suspect shoot in the direction of the Samoans[.]

3. Jermaine Tukus Testimony

a. An Unidentified Male Confronts Togisala and Tuku.

Jermaine Tuku (the victim in counts 2 and 4) testified as follows. About 6:35 p.m. on March 29, 2006, Tuku was with his relative Elijah Togisala (the victim in counts 1 and 3) in the area of 15th and Cedar. The two, who were walking home, were walking northbound on the east sidewalk of Cedar. A male approached them from behind and said Where we from, where we from[.] This meant What gang are you from. Tuku thought the male was about to do something to Tuku and Togisala, and thought the male would probably fight with them.

Tuku and Togisala turned around and repeatedly said, We dont bang. Nonetheless, the male walked towards them. Tuku stepped up because he thought the male was going to do something, but the male turned west and walked away, walking towards the middle of the street. The male then walked southbound and Togisala followed him in the middle of the street.

b. Appellants First Confrontation with Togisala and Tuku.

Tuku then saw appellant, who was sneaking behind parked cars and approaching Togisala from behind.^[1] Tuku ran to Togisala and was right with him. Tuku was in front of appellant, staring at him to make sure appellant would not do anything. Appellant was about five or six feet from Tuku. During cross-examination, Tuku testified appellant was about four feet from Togisala.

Tuku testified he approached Togisala because appellant had approached Togisala, and Tuku was concerned. The prosecutor asked Tuku how far Togisala was from Tuku at that time, and Tuku replied, [Togisala was] -- right in back of me, right shoulder in the back. (Sic.)

Appellant backed off and walked backwards, and Tuku also walked backwards. Togisala was right next to Tuku. Tuku testified Togisala was shoulder to shoulder and Tuku could extend his arm out and touch Togisala. Tuku testified that [a]s we backed off, [Tuku and Togisala] turned around and walked away.

c. Appellants Second Confrontation with Togisala and Tuku, and the Shooting.

Although Tuku and Togisala walked away, appellant kept saying, Where are you from? and Where you bang? Tuku testified then [Togisala] turned around and said Nowhere, Im a little bit in front of him. [] Then [appellant] said, Oh, yeah, oh, yeah? and then I turn around and then thats when [appellant] shot [Togisala]. Tuku heard one gunshot.

The prosecutor asked Tuku if, before he heard the gunshot, he saw a gun in appellants hands. Tuku replied, Not exactly, he was too fast. Tuku turned around to face appellant and, when Tuku was face-to-face with appellant, appellant pulled something out and then Tuku heard a gunshot. Togisala was hit, but Tuku was not. When Togisala was hit, Tuku heard a sound like a firecracker.

When Tuku heard the sound like a firecracker, appellant was standing about 15 feet from Tuku, and Togisala was in front of Tuku. Togisala was somewhere between Tuku and appellant when appellant fired. The prosecutor asked whether, when Tuku saw appellant shoot, appellant took a stance (which the prosecutor demonstrated). Tuku replied no. Tuku testified appellant took it out of his pocket and it was quick. (RT/69) The court noted for the record that Tuku, when so testifying, motioned with his right hand from his mid section towards the front of his body. The prosecutor asked whether the motion that [Tuku] saw . . . the defendant make in pulling out the weapon, was . . . across his body or just right in front, and Tuku replied it was right in front and quick. The prosecutor asked if Tuku heard appellant say, Im going to shoot you, the guy in the front, not the guy in the back, and Tuku replied no. According to Tuku, appellant essentially just took out the gun and shot[.]

Tuku testified that he earlier had stated that Togisala was in front of Tuku. The prosecutor then asked, this is when the defendant shot at both of you? and Tuku replied yes. The following then occurred: Q. Was [Togisala] directly in front of you so that you could not see the defendant when he was shooting or were you kind of offset or off to the side? [] A. It was off to the side. [] Q. So you could see when the defendant shot [Togisala]? [] A. Yes. Tuku did not see the gun.

Tuku testified that after appellant took out the gun and shot, It caught [Togisalas] hand and then [Togisala] just twitched and began limping, and the two ran northbound. Appellant went southbound.

Tuku and Togisala ultimately stopped at an apartment building located about half a block from the location where the shooting occurred. Police later arrived. Tuku positively identified appellant at trial as the person who shot at [Tuku].^[2]

4. Togisalas Testimony.

Togisala testified as follows. About 6:35 p.m. on March 29, 2006, Togisala was in the area of 15th and Cedar with Tuku, and was walking home. Togisala was walking northbound on the sidewalk. A male, who was not appellant, approached Togisala and Tuku from behind and asked them where we was from as in what set are we from or what gang do we run with. Togisala was scared, knew that what appellant said meant trouble, and already knew what was going to happen. Togisala turned towards the male and told him that Togisala did not gang bang and was not from anywhere. The male continued asking, then left. Togisala continued walking, and was walking in the street.

As Togisala walked down the street, appellant approached and, from about 10 feet away, asked the same question. Appellant asked, Where are you from. Appellant then shot Togisala in the left forearm while Togisala was in the street. Appellant shot Togisala quickly, and Togisala did not see the gun. The bullet went straight through Togisalas forearm.

Togisala testified that when appellant shot Togisala, Tuku was in eyesight about two feet away or something, arm length[.] During that testimony, Togisala motioned with his right hand outstretched to his right side. Togisala could reach and touch Tuku. Togisala positively identified appellant at trial as the shooter.

5. Testimony of Detectives Grimaldo and Armond.

Long Beach Police Detective Carlos Grimaldo testified as follows. Shortly after 6:35 p.m. on March 29, 2006, he responded to Cedar and recovered a .25-caliber spent casing from in front of 1620 Cedar. A .25-caliber gun was a smaller-sized gun.

Long Beach Police Detective Earnest Armond, a gang expert, testified as follows. The Eastside Longo gang was a criminal street gang, and appellant was an active member of it. In Armonds opinion, the acts in the present case were committed for the benefit of the gang. Armond based this on the following facts. The victims were in the middle of Eastside Longo gang territory and were not Hispanic. They were hit up or asked where they were from. That usually occurred when a rival gang member or someone in that area was protecting his neighborhood. The credibility of a gang member who was a shooter would be enhanced within the gang, and the gangs credibility would be enhanced in the neighborhood, with the result that fear would be instilled into the community. Appellant presented no defense witnesses.

CONTENTIONS

Appellant claims (1) there was insufficient evidence of intent to kill as to count 2; (2) there was insufficient evidence of intent to kill as to count 1; (3) imposition of the Penal Code section 12022.53, subdivision (d), enhancement as to count 1, was cruel and unusual punishment; (4) the trial courts imposition of the Penal Code section 186.22, subdivision (b)(1)(C), enhancements as to counts 1 and 2, was error; and (5) appellant is entitled to additional precommitment credit.

DISCUSSION

1. There Was Sufficient Evidence of Intent to Kill as to Count Two(Victim Tuku).

Appellant claims there was insufficient evidence as to count 2, because there was, according to appellant, insufficient evidence of intent to kill Tuku. We disagree.

a. Applicable Law.

In People v.Smith (2005) 37 Cal.4th 733 (Smith), the defendant fired a single bullet into a slowly moving vehicle, narrowly missing a mother and her infant son. The evidence showed that the mother, who was known to defendant and was driving, and her baby, who was secured in a car seat directly behind her, were each in defendants line of fire when he fired a single .38-caliber round at them from behind the car as it pulled away from the curb. The bullet shattered the rear windshield, narrowly missed both the mother and baby, passed through the mothers headrest, and lodged in the drivers side door. (Id. at p. 736.) A jury convicted the defendant of, inter alia, two counts of attempted murder, with the mother and her baby as the victims, respectively. (Id. at p. 738.) Appellant did not challenge his conviction for attempted murder as to the mother, but challenged his conviction for attempted murder as to the baby on the ground that his firing of a single bullet into the vehicle reflected an intent to kill only the mother. (Smith, supra, 37 Cal.4th at p. 738.) Our Supreme Court rejected the sufficiency challenge. (Id. at p. 736.)

Smith observed that a defendant can commit murder based on express malice (intent to kill) or implied malice, but a defendant cannot commit attempted murder of a person unless the defendant harbored express malice towards that person, that is, unless the defendant intended to kill that person. Express malice requires a showing that the defendant desired the result of the death of the victim, or knew to a substantial certainty that that result would occur. Moreover, because attempted murder requires that the defendant intend to kill the alleged victim and not someone else, the doctrine of transferred intent does not apply to attempted murder, and whether a defendant acted with specific intent to kill must be judged separately as to each alleged victim. (Smith, supra, 37 Cal.4th at pp. 739-740.)^[3]

Smith stated that the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter has no particular motive for shooting the victim is not dispositive, but where motive is shown, such evidence will usually be probative of proof of intent to kill. The fact that the bullet misses its mark or fails to prove lethal is not dispositive--the very act of firing a weapon in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill. (Smith, supra, 37 Cal.4th at p. 742.) After discussing the pertinent facts in that case, Smith concluded that evidence that the defendant purposefully discharged a lethal firearm at the victims, both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire, could support an inference that the defendant acted with intent to kill both victims. (Id. at p. 743.)

Smith inquired whether the fact that the defendant fired a single bullet at the victims precluded, as a matter of law, his conviction for the attempted murders of both victims. In answering that question, Smith relied upon People v. Chinchilla (1997) 52 Cal.App.4th 683 (Chinchilla).

In Chinchilla, the appellate court affirmed two convictions of attempted murder based on the firing of a single bullet at two police officers who were crouched, one behind the other, in the shooters line of fire. The court held that intent to kill two different victims can be inferred from evidence that the defendant fired a single shot at the two victims, both of whom were visible to the defendant. (Chinchilla, supra, 52 Cal.App.4th at p. 685.) Smith concluded that the fact that the defendant in Chinchilla, for whatever reason, fired only a single shot was not dispositive in Chinchilla. (Smith, supra, 37 Cal.4th at p. 745.)

b. Application of the Law to This Case.

In the present case, Daniel P. testified males chased, not merely one Samoan, but two Samoans, later identified as Togisala and Tuku. The suspect yelled at the Samoans. The suspect referred to both Samoans as homies.

According to Daniel P., the gunman took one shot at the Samoans. Daniel P. told Banuelos that the gunman shot in the direction of the Samoans[.] At the time, the shooter was just south of the Samoans. That is, the shooter, later identified as appellant, purposefully fired a lethal weapon at others at close range, without legal excuse, giving rise to an inference that appellant acted with express malice.

According to Tuku, he and Togisala had turned and walked away but appellant kept asking Where are you from. Tuku did not testify that appellant then expressly distinguished between Tuku and Togisala.

Moreover, based on Tukus testimony, the jury reasonably could have inferred the following. Tuku was a little bit in front of Togisala as the two were walking away from appellant. Togisala then turned around and faced appellant, at which time Togisala was between Tuku and appellant. Tuku then turned around and saw appellant shoot Togisala. When appellant shot Togisala, appellant was about 15 feet from Tuku, and Togisala was in front of Tuku. Tuku did not hear appellant say he was going to shoot the guy in front, that is, Togisala, but not shoot the guy in back, that is, Tuku.

Appellant quickly pulled out the gun and fired it, and did not adopt a firing stance or carefully aim only at Togisala. Togisala was in front of Tuku when appellant shot at both of [them]. Togisala was not so directly in front of Tuku that Tuku could not see appellant shoot Togisala. Tuku testified It was off to the side and he could see appellant shoot Togisala. Tuku identified appellant at trial as the person who shot at Tuku. Togisala testified that appellant asked Togisala and Tuku where we was from, (italics added) and that appellant was about 10 feet from Togisala when appellant shot him. Appellants questions before the shooting, as well as Armonds testimony, provided a motive for shooting at Togisala and Tuku--appellant was protecting territory claimed by his gang.

We note that, although there was evidence that appellant shot Togisala with a .25-caliber handgun, and that such a gun is a smaller-sized gun, Togisala testified that, at the time of the shooting, he was about 10 feet from appellant. Moreover, the bullet struck Togisala with sufficient force that it went through his forearm, and was therefore capable of continuing further. There was evidence that Tuku was almost directly behind Togisala at the time, and the bullet went straight through Togisalas forearm. None of the witnesses testified that, when appellant shot Togisala, his left forearm was raised above his head or not at the center mass level, which is where his forearm normally would have been if his arm had been at his side.

In short, the jury reasonably could have inferred from the evidence that Tuku was within close range of appellant and essentially in the line of fire when appellant shot Togisala, that Tuku was almost directly behind Togisala except to the extent an offset permitted Tuku to see the shooting, and that appellant, motivated by gang considerations,^[4]shot at, and intended to kill, Tuku. We conclude there was sufficient evidence that appellant attempted to murder Tuku, including sufficient evidence that appellant intended to kill him. (Cf. Smith, supra, 37 Cal.4th at pp. 736, 738-745, People v.Chinchilla, supra, 52 Cal.App.4th at pp. 685, 687-691.)^[5]

Appellant suggests that Togisalas testimony demonstrates that, when appellant shot Togisala in the left forearm, Tuku was standing to Togisalas right; therefore, appellant lacked intent to kill Tuku. As mentioned, Togisala testified that when appellant shot Togisala, Tuku was in eyesight about two feet away or something, arm length[.] During that testimony, Togisala motioned with his right hand outstretched to his right side. He testified he could reach and touch Tuku. We reject appellants suggestion.

When a defendant challenges on appeal the sufficiency of the evidence, Our power as an appellate court begins and ends with the determination whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, to support the judgment. [Citation.] (People v. Hernandez (1990) 219 Cal.App.3d 1177, 1181-1182.)

This is a case in which, based on the testimony of Daniel P., Banuelos, and especially Tuku, there was substantial evidence that, at the time of the shooting, Tuku, viewed from appellants vantage point, was substantially, although perhaps not fully and completely, behind Togisala. This is not a case in which there was no substantial evidence that Tuku was behind Togisala at the time of the shooting, but substantial evidence that, at the time of the shooting, Tuku, viewed from appellants vantage point, was merely standing next to Togisala. Phrased differently, this was a case in which there was substantial evidence, especially from Tukus testimony, that he was essentially in the line of fire. That fact is not altered by the fact that there also may have been substantial evidence from Togisalas testimony that Tuku was not in the line of fire.

Appellant argues the case was submitted to the jury on an incorrect legal theory when the prosecutor, during his opening argument, said, [i]ntent to kill two different victims can be inferred from the evidence that a single shot is fired at two victims, both of whom are [visible] to the shooter. He correctly notes that Smith refused to affirm the attempted murder conviction involving the baby victim on the mere ground that the defendant placed the babys  life in danger by shooting in his direction.  (Smith, supra, 37 Cal.4th at p. 747 (quoting dis. opn. of Werdegar, J. at p. 749).) However, appellant erroneously suggests that the prosecutors above quoted statement during opening argument amounts to reliance on the ground quoted and rejected in Smith. We disagree.

First, simply put, there is a big difference between (1) inferring intent to kill two victims from evidence that a single shot was fired at two victims, both of whom were visible to the shooter, permitting the inference that the shooter was subjectively aware of them, and (2) inferring that intent merely from the fact that, by shooting in thedirection of a victim, the victims life is objectively endangered. Second, there is no dispute that the prosecutor was essentially quoting a statement from People v. Chinchilla, supra, 52 Cal.App.4th 683, 685. In fact, Smith itself quoted this statement (Smith, supra, 37 Cal.4th at p. 744), and Smith approvingly cited that case. (Id. at pp. 741-748.) The present case, therefore, was not submitted to the jury on a legally inadequate theory. Moreover, a case cannot, based on jury argument alone, be deemed to have been submitted to the jury on a legally inadequate theory. (People v. Morales (2001) 25 Cal.4th 34, 43.)

2. There Was Sufficient Evidence of Intent to Kill as to Count 1 (Victim Togisala).

Appellant claims there was insufficient evidence as to count 1, because there was, according to appellant, insufficient evidence of intent to kill Togisala. We disagree. We have discussed the pertinent issues in the context of our above analysis of count 2. There was substantial evidence that, at the time of the shooting, Togisala was closer to appellant than Tuku and, of course, appellant shot Togisala, who was struck by a bullet which went through his left forearm. Based on all the evidence, we conclude the jury reasonably could have inferred that Togisala was within close range of appellant when he shot Togisala, and that appellant, motivated by gang considerations, shot at, and intended to kill, Togisala. (Cf. Smith, supra, 37 Cal.4th at pp. 736, 738-745; People v.Chinchilla, supra, 52 Cal.App.4th at pp. 685, 687-691.)

3. Imposition of The Penal Code Section 12022.53, Subdivision (d), Enhancement as to Count 1 Was Neither Cruel Nor Unusual Punishment.

a. Pertinent Facts.

The preconviction probation report prepared for an August 2006 hearing reflects appellant was born in March 1987, and had the monikers of Puppet and Trouble. The report reflects the following as to his juvenile offense history. In July 2002, appellant suffered a sustained petition for committing lewd or lascivious acts (Pen. Code,  288, subd. (a)). The court ordered him placed home on probation. Appellant told the probation officer concerning this matter that a female was videotaped at a party.

On December 19, 2003, appellant suffered a sustained petition for attempted vandalism. The court ordered him placed in camp. Appellant told the probation officer that appellant was walking next to a car and police arrested him. On December 19, 2003, appellant also suffered a sustained petition for possession of burglars tools. The court ordered him placed in camp. Appellant told the probation officer that police found him in possession of keys, and the petition was dismissed.

In 2004, appellant suffered a sustained petition for assault with a deadly weapon with great bodily injury. The court ordered him placed in camp. Appellant denied to the probation officer that appellant had been arrested, or had suffered a sustained petition, for this offense. As an adult, appellant suffered a 2006 conviction for possession of less than an ounce of marijuana. Appellant told the probation officer that appellant was only cited for the offense, and appellant denied use of controlled substances.

The probation report reflects appellant was involved in gang activity with the Eastside Longos gang. Moreover, the probation officer stated, [t]he defendant made an unprovoked attack on both victims with a firearm. He shot one of the victims in the forearm and subsequently fled on foot. Neither of the victims were gang associates nor did the victims know the defendant. It appears that the defendant felt that the victims were his enemies because they were Samoan and therefore he took it upon himself to challenge them and shoot at them. He has a lengthy criminal history at the juvenile level with numerous sustained petitions for violent crimes and property-related offenses that have resulted in camp community placements. Efforts to rehabilitate the defendant at the juvenile level have failed . . . . The court listed as an aggravating factor that appellants prior performance on formal probation or parole was unsatisfactory. The report listed no mitigating factor and recommended imposition of the high-base term.

In February 2007, appellant filed a sentencing memorandum. The memorandum argued, inter alia, that imposition of the Penal Code section 12022.53, subdivision (d), enhancement was cruel and unusual punishment under the federal and state Constitutions, and the trial court should dismiss the enhancement. In the memorandum, appellant argued as follows. The punishment was cruel and unusual considering the nature of the offense and offender. Appellant had behaved well and had progressed academically each time he was placed in camp.^[6] He was a high school graduate. He was released from camp in October 2005, about five months before the present offenses.^[7]

At sentencing on February 27, 2007, appellant argued consistent with his memorandum that the enhancement was cruel and unusual punishment. The court stated, Well, you know, the People make the laws through their legislators and the legislature in its wisdom decided that this is [an appropriate] statute. . . . Your client had a choice. And he made a bad choice, he decided to shoot at these two kids for no reason. These were two kids walking home from school, . . . two kids that presented no threat to him, presented no threat to anything. Their only crime was that they happen to be Samoan and he happened to be Hispanic. . . . [] To shoot at those two kids for that reason alone to me is extraordinarily egregious conduct. He could have walked away after he asked them, Where are you from? He had a multiplicity of options but he decided he was going to shoot these kids or shoot at these kids, [and] he struck one. And it seems to me that the 10-20 life statute was designed for this situation.

The prosecutor, discussing appellants juvenile offenses, commented as follows as to appellants assault with a deadly weapon offense. Appellant and other persons asked a Black juvenile where he was from and struck him on the head. Two days later, the juveniles father confronted appellant and his friends, the juvenile was hit in the head with a bat, and racial epithets were directed at him. As to the Penal Code section 288, subdivision (a) offense, appellant entertained his gang mentality when he and his companions sexually assaulted a victim and tried to videotape her fighting back. The prosecutor argued the above demonstrated that appellant preyed upon people when he was with a gang or with others. Both parties then submitted the matter.

The court denied appellants request to dismiss the Penal Code section 12022.53, subdivision (d), enhancement pertaining to count 1. As mentioned, appellants prison sentence included a term of 25 years to life based on that enhancement.

b. Analysis.

We have set forth the facts pertinent to appellants cruel and unusual punishment contention. We conclude that imposition of the Penal Code section 12022.53, subdivision (d), enhancement as to count 1 did not violate constitutional proscriptions against cruel or unusual punishment. (Cf. People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212-1216; People v. Gonzales (2001) 87 Cal.App.4th 1, 16-18; People v. Martinez (1999) 76 Cal.App.4th 489, 493-497, fn. 6; People v. Cooper (1996) 43 Cal.App.4th 815, 820-828; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137; People v. Loustaunau (1986) 181 Cal.App.3d 163, 177; see People v. Alvarez (2001) 88 Cal.App.4th 1110, 1116-1118.) None of the cases cited by appellant compels a contrary conclusion.^[8]

4. Imposition of the Two 10-Year Penal Code Section 186.22, Subdivision (b)(1)(C), Enhancements Was Error.

As to each of counts 1 and 2, the trial court imposed a sentence of life with the possibility of parole for attempted willful, deliberate, and premeditated murder (Pen. Code,  664, subd. (a), 187), plus a 10-year gang enhancement (Pen. Code,  186.22, subd. (b)(1)(C), 667.5, subd. (c)(12)). The court ordered that appellant serve consecutive sentences on those counts.

Respondent concedes imposition of the enhancements was error. As mentioned, as to each of counts 1 and 2, the court imposed a sentence of life with the possibility of parole. Penal Code section 186.22, subdivision (b)(1), creates an exception to the imposition of the 10-year enhancement term otherwise mandated by Penal Code section 186.22, subdivision (b)(1)(C). The exception states, Except as provided in paragraph[] . . . (5).

Penal Code section 186.22, subdivision (b)(5), states, in relevant part, any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served. As to each of counts 1 and 2, the exception renders inapplicable the 10-year enhancement term (cf. People v.Herrera (1999) 70 Cal.App.4th 1456, 1465) and mandates instead a minimum parole eligibility term of 15 years (cf. People v.Ramos (2004) 121 Cal.App.4th 1194, 1209). We will modify the judgment accordingly.

5. Appellant is Entitled to Additional Precommitment Credit.

Appellant was arrested in this case on April 27, 2006, and sentenced on February 27, 2007, a total of 307 days, inclusive. At sentencing, the trial court stated, Your time credits are 65 -- Im sorry, 251 plus 36 for a total of 288 days. (Sic.) The abstract of judgment reflects the court awarded appellant 287 days of precommitment credit, consisting of 251 days of custody credit and 36 days of conduct credit.

As respondent concedes, appellant was entitled to 353 days of precommitment credit, consisting of 307 days of custody credit and, pursuant to Penal Code section 2933.1, subdivision (a), 46 days of conduct credit. (Cf. People v. Bravo (1990) 219 Cal.App.3d 729, 731; People v. Smith (1989) 211 Cal.App.3d 523, 527; Pen. Code,  667.5, subd. (c)(12).) We will modify the judgment accordingly.

DISPOSITION

The judgment is modified by striking the Penal Code section 186.22, subdivision (b)(1)(C), enhancements pertaining to counts 1 and 2, by ordering as to each of counts 1 and 2, that appellant, pursuant to Penal Code section 186.22, subdivision (b)(5), serve a minimum of 15 years before he is eligible for parole, by striking the trial courts previous award of precommitment credit, and by awarding appellant 353 days of precommitment credit, consisting of 307 days of custody credit and, pursuant to Penal Code section 2933.1, subdivision (a), 46 days of conduct credit, and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modifications.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J

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^[1] During cross-examination, Tuku testified that the unidentified male was looking and was talking in Spanish when he was walking away. Tuku thought the male was talking to appellant.

^[2] Tuku testified that the closest that appellant ever got to Tuku that day was about four or five feet. Tuku did not then testify when, during the course of events, appellant got that close.

^[3]Smith rejected the defendants claim that the kill zone rationale (Smith, supra, 37 Cal.4th at p. 746) controlled that case (ibid.), and refrained from deciding under what factual circumstances, if any, the firing of a single bullet might give rise to multiple convictions of attempted murder under the kill zone rationale. (Id. at p. 746, fn. 3.) There is no need for us to reach this issue either. In our discussion below, we will judge separately as to Tuku whether appellant acted with intent to kill him.

^[4] We note there was evidence of joint activity between appellant and a confederate in the events leading to the shooting. Daniel P. testified some guys chased the Samoans. Tukus testimony supports an inference that appellant tried to sneak up on Togisala while the latter was focused on the unidentified male as the latter walked away. Tuku thought the male was talking to appellant. The unidentified male and appellant, at separate times, each confronted Tuku and Togisala about where they were from.

^[5] Appellant filed a motion for a new trial on the ground there was insufficient evidence that appellant intended to kill Tuku, and the trial court denied the motion. When denying the motion, the court stated, I think both of the victims were in sufficient proximity. They were certainly both individuals who your client was interested in, being of a different race, a different gang, whatever. And he directed his ire and his comments about, where are you from? et cetera . . . to both. So that motion request for new trial as to that issue is denied. In light of the analysis in the text, and to the extent appellant claims the trial court erred by denying the motion, we reject the claim.

^[6] Appellant cited supporting portions of a 2004 probation report. That report also indicated, as noted by appellant during sentencing argument in the present case, that The minor understands the risks to his freedom and, indeed, his life if he continues to participate with the gang and he states he wants to stop but adds, the problem is, I started so young. 

^[7] The memorandum did not make an intrajurisdictional or interjurisdictional comparison of the present offenses with similar offenses in this or other jurisdictions, respectively.

^[8] Because we have addressed the merits of appellants cruel and unusual punishment contention, there is no need to decide whether he waived his intrajurisdictional and interjurisdictional comparison issues by his failure below to object on those grounds. (See People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7; People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)