P. v. Armster

Filed 4/18/07 P. v. Armster CA4/2

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Vilia G. Sherman, Judge. Affirmed with directions.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Tony Eugene Armster.

Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant Manuel Varela.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Reina Delores Reyes.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Ronald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

In a third amended information, Tony Armster, Manuel Varela, and Reina Reyes were charged with one count of conspiracy to commit murder (Pen. Code,  182, subd. (a)(1);^[1]count 1), five counts of willful, deliberate, and premeditated attempted murder ( 664, 187, subd. (a); counts 2-6), one count of assault with a firearm ( 245, subd. (a)(2); count 7), and one count of discharging a firearm at an inhabited dwelling ( 246; count 8). Reyes was also charged with one count of making criminal threats. ( 422; count 9.) As to Armster and Varela, various firearm enhancements within the meaning of sections 12022.53, subdivisions (c) and (d) and 12022.5, subdivision (a) were alleged in counts 1 through 8.^[2] As to Reyes, it was alleged a principal was armed with a firearm in counts 1 through 6 and 8, within the meaning of section 12022, subdivision (a)(1).

All of the charges stemmed from a March 4, 2003, drive-by shooting at a home in Moreno Valley. The home belonged to the Salazar family, including 20-year-old Justin Salazar, his younger brother Jeramie Salazar, and their parents, Ronald and Christina Salazar. The four members of the Salazar family and two other persons, namely, Denise Yrigoyen, and her boyfriend, Michael Rodarte, were in the Salazar house at the time of the shooting. Michael suffered a bullet wound to his chest, but survived. All three defendants were passengers in a white Ford Taurus. The driver of the Taurus was Donzelle Benton. After the Taurus drove by the Salazar house several times, five or more shots were fired from the passenger side of the Taurus at the Salazar house. Benton was originally charged with defendants, but entered into a plea agreement before trial and testified for the prosecution.

The third amended information charged defendants with conspiracy to murder Justin Salazar (count 1), the willful, deliberate, and premeditated attempted murders of Justin Salazar (count 2), Jeramie Salazar (count 3), Christina Salazar (count 4), Ronald Salazar (count 5), and Michael Rodarte (count 6). Although Denise was present in the Salazar house at the time of the shooting, defendants were not charged with attempting to murder Denise. They were, however, charged with assaulting Denise with a firearm (count 7), and with shooting at an inhabited dwelling (count 8). Only Reyes was charged with making criminal threats to Justin Salazar (count 9).

The parties stipulated to two juries, one for Armster and Varela and a separate jury for Reyes. Armster and Varela were found guilty as charged, and all firearm allegations were found true. Reyes was found guilty as charged on counts 1, 2, and 6 through 9, but not guilty on counts 3 and 4. A mistrial was declared on count 5 and count 5 was dismissed after Reyess jury was unable to reach a verdict. The Reyes jury found the firearm allegations true on counts 1, 2, 6, and 8. Armster and Varela were each sentenced to 235 years to life, plus five years in state prison.^[3] Reyes was sentenced to 39 years to life, plus 12 years 8 months.^[4]

Defendants appeal, with each joining the others contentions. Defendants first contend there is insufficient evidence of intent to kill to support their conspiracy to commit murder and attempted murder convictions, and insufficient evidence to support any of their attempted murder convictions under a kill zone theory. We find sufficient evidence of intent to kill to support each defendants convictions in counts 1 through 6. Second, defendants contend the prosecutor improperly vouched for the credibility of prosecution witness Benton in several respects. We find no improper vouching.

Third, fourth and fifth, defendants raise claims of instructional error. Specifically, they contend the trial court erroneously: (1) failed to instruct sua sponte on the lesser included offense of attempted voluntary manslaughter based on heat of passion in counts 2 through 6, the premeditated, attempted murder counts; (2) refused to instruct on the lesser related offenses of assault with a firearm and shooting at an occupied dwelling in counts 2 through 6; and (3) failed to instruct on the Dewberry^[5]principle on the premeditated, attempted murder counts. We find no instructional error. There was no evidence that any defendant acted in the heat of passion in counts 2 through 6; the trial court had no duty to instruct on any lesser related offenses; and the juries were properly instructed on the Dewberry principle in counts 2 through 6.

Sixth, Varela and Armster claim that the section 12022.53, subdivisions (c) and (d) enhancements were erroneously imposed on count 1, the conspiracy count, because conspiracy is not a crime listed in section 12022.53. We reject this contention, because section 12022.53 enhancements apply to felonies punishable by life in prison, which includes conspiracy to commit murder.

Defendants also raise several claims of sentencing error. First, they claim their separate 25-year-to-life sentences on count 1 for conspiracy to commit murder should have been stayed in view of their separate consecutive straight-life sentences for the attempted murder of Justin in count 2. We agree with this contention, because the evidence showed that defendants intent and objective in counts 1 and 2 were the same, namely, the murder of Justin. There was no evidence that defendants harbored a different and broader objective, other than the murder of Justin, in count 1.

Reyes further claims that her consecutive sentence on count 7 (assault with a firearm) should have been stayed in view of her consecutive sentence on count 8 (shooting an inhabited dwelling). Lastly, defendants claim the trial court abused its discretion in imposing consecutive sentences on all counts, and their consecutive sentences and Reyess upper term sentence on count 8 violate their right to a jury trial under Blakely.^[6] We find each of these claims without merit.

Accordingly, we modify the judgments to stay defendants sentences and enhancements on count 1, the conspiracy to commit murder count. In all other respects, we affirm the judgments.

II. FACTS AND PROCEDURAL HISTORY

A. ProsecutionEvidence Presented to Both Juries

1. Relationship of Parties, Victims, and Witnesses

On March 4, 2003, Justin, then age 20, lived in a house on Briana Street in Moreno Valley with his parents, Ronald and Christina, and his younger brother, Jeramie. Denise and her boyfriend Michael were friends with Jeramie and lived across the street from the Salazars.

Roque Viernes, Jr. was defendant Reyess boyfriend. On March 4, 2003, Roque was 19 years old, and Reyes was 18 years old. Since April 2002, Reyes and Roque had been living with Roques parents in a house on Sun Valley Road in Moreno Valley. The Viernes house was approximately a five-minute walk and a two-minute drive from the Salazar house. Roque and Justin were good friends, and had known each other since middle school.

Defendants Varela and Reyes are brother and sister. Donzelle Benton lived with his aunt, Joe Ann Sanford-Keough, and Varela in Perris. Defendant Armster was the boyfriend of Bentons cousin.

2. Events Preceding the Shooting

On March 4, 2003, Roque and Reyes had an argument at Roques house. Later that day, Roque went to the Salazar house. There, Christina told Roque that, according to her husband Ronald, Reyes had been cheating on Roque. Then Justin came home and, according to Roque, confirmed that Reyes had been cheating and advised Roque to break up with Reyes.^[7]Justin denied telling Roque to break up with Reyes. Instead, he said he told Roque to do whatever you have to do to make your situation right.

Roque returned home, where he continued arguing with Reyes. He told Reyes that Justin said she had been cheating on him, he was breaking up with her, and she had to move out of his house. Reyes didnt like it and didnt want to take it. Roque called Justin to help him move Reyess belongings out of his house, and to tell Reyes he knew she had been having an affair. Reyes wanted Justin to come over so she could confront him.

Justin came over to Roques house, and Reyes began arguing with Justin. Justin told Reyes her relationship with Roque was over because she had cheated on him.^[8] Reyes denied cheating on Roque. She called Justin a fat mother-fucker and a liar, and called Justin and his father Ronald some lying mother-fuckers. According to Roque, Reyes was acting [k]ind of like violent and crazy. She started jumping in [Justins] face, swung her arms at him, and was yelling, Hit me, hit me.

Eventually, Reyes became frustrated and walked away from Justin. She returned a few minutes later, holding a phone to her ear. She smiled and told Justin, Im going to fucking kill you, got a bullet with your name on it, and Im going to call my brother to come shoot your house. (Italics added.) She appeared angry and dead serious. Justin said, You know where Im at and went home.

After Justin left Roques house, Roque again told Reyes to leave his house. Reyes left, returned about 10 minutes later, and continued arguing with Roque. At this point, Reyes angrily told Roque that she was going to stab Justin in his fat heart. Reyes made another phone call and left the house. Roque did not know whom Reyes called.

In the meantime, Justin returned home, told his parents that Reyes had threatened his life, and called 911 to report the threat. Then, Roque called Justin and told him about Reyess latest threat to stab Justin in his fat heart. Roque sounded very frightened. At this point, Ronald and Christina were at home, and Jeramie, Michael, and Denise had arrived at the Salazar home for dinner.

3. Bentons Testimony

Benton testified that Reyes called Sanford-Keoughs house and spoke with Varela on March 4. Benton and Armster were present when Reyes called. Varela then asked Benton to give him a ride to Moreno Valley, explaining there was an emergency involving Reyes, and they needed to pick up Reyes at Roques house. Within several minutes of Reyess call, Benton drove to Roques house in Bentons white police issue Ford Taurus. Armster sat in the front passenger seat and Varela sat in the backseat. On the way, Varela angrily said, Im going to F him up if he put his hands on my sister. Benton did not know and did not ask Varela who he was talking about.

When Benton, Armster, and Varela arrived at Roques house, Reyes came outside with some other people, who appeared to be Roques parents. She was angry, and spoke with Armster and Varela. Someone said to Reyes, please dont go do this. The conversation lasted approximately one minute, then defendants and Benton got into the Taurus. Benton drove, with Armster in the front passenger seat, Varela in the right rear passenger seat, and Reyes in the left rear passenger seat.

Reyes and Varela directed Benton to Briana Street. On the way, Reyes and Varela talked with each other. They were both angry, and said they were looking for two guys. Either Varela or Reyes instructed Benton to drive slowly up and down Briana Street several times, as they looked for the Salazar house. Varela indicated he wanted to go to the door and talk to the people in the house, but Reyes told him not to because the people had guns.

After driving by the Salazar house several times, Benton drove back toward Roques house on Sun Valley Road. But instead of stopping at Roques house, Armster directed Benton to drive to his friends house, explaining he needed to pick up something and wanted to be prepared. Benton, Varela, and Reyes stayed in the car while Armster went into his friends house for a few minutes. When he returned, Armster said, mine has three and something to the effect of its a throw-away.

Varela then asked Benton to drive back to Briana Street one more time. On the way, Varela told Reyes, We can do this later. We can come back. But Reyes replied, No, I want to do it and I want them to feel it. Varela said, [Benton] wont let us shoot out of his car. Then, shortly before the shooting, either Reyes or Varela said, Are you ready?

Benton heard shots coming from the rear passenger side of the car, where Varela was sitting. Then he saw a flash from Armsters gun. After that, the shots ran together. As the shots were being fired, Benton slowed the car to a near stop in front of the Salazar house. All three defendants yelled, Dont stop. Drive, drive, drive. Benton quickly sped away, spinning his tires. Benton said he did not know there was going to be a shooting, but he had bad feelings that something bad was going to happen.

4. Events at the Salazar House

After Justin returned home and called 911 to report Reyess threat, Ronald was in Jeramies upstairs bedroom, watching the street. The Taurus drove by the house several times. All of the lights in the house were on. The occupants of the Taurus leaned over and looked at the house. After the Taurus left, Justin, Jeramie, and Michael went outside for a couple of minutes, but came back inside after Ronald told them to come in. Ronald turned off the light in Jeramies room.

Later, Benton, Armster, Varela, and Reyes returned in the Taurus. At this point, Ronald was still looking out the upstairs window, with the lights turned off. The other lights in the house were still on. Denise was looking out the living room window next to the front door. Justin and Michael were standing inside the closed front door. Christina was in the kitchen calling 911. Jeramie was either in the living room or in the kitchen with Christina.

Christina heard a flurry of gunfire with no less than five shots. Ronald observed four or five rapid-fire shots from the rear seat and one louder shot with a bigger flash from the right front passenger seat. Armster looked up at the upstairs window, and Ronald backed away from the window. No more shots were fired.

The front profile of the Salazar house was small. There was a garage in the front, facing the street. The front door and one living room window were to the right of the garage. Four upstairs bedroom windows also faced the street. There were blinds on all of the windows and the kitchen was in the back of the house. There was a security door in front of the front door.

One of the bullets pierced the security door and front door and struck Michael in the chest. Another bullet lodged in the living room windowsill above where Denise was standing. No one other than Michael was hit. After Michael fell to the ground, Justin and Denise dragged him into the kitchen. Michael removed his shirt and blood began pouring out of the bullet wound. Michael said he couldnt breathe and he was afraid he was going to die. Justin told the 911 operator to hurry because the situation had become chaotic. Everyone huddled together on the kitchen floor. Paramedics and sheriffs deputies arrived, and Michael was taken to the hospital.

Michael had severe pain for two weeks. At the time of trial, two years after the shooting, the bullet was still in Michaels body. He continued to experience real bad chest pains in cold weather.

5. Events Following the Shooting

Following the shooting, Reyes told Benton where to drive. As they drove away from the Salazar house, Armster and Varela threw their guns out of the Taurus windows. A sheriffs helicopter illuminated and circled the Taurus as it was heading southbound on Perris Boulevard. Benton pulled over and everyone got out of the car. Reyes told Armster and Varela to urinate on their hands to wash away any gunpowder. Varela was unable to urinate, so Armster urinated on Varelas hands. A few minutes later, sheriffs deputies arrived and arrested Benton, Armster, Varela, and Reyes. The arrests took place between three and five miles from the Salazar house.

Armsters and Varelas hands were tested for gunshot residue (GSR). Several highly specific particles of GSR were found on Varelas left hand. No GSR was found on Varelas right hand or on either of Armsters hands. Steven Dowell, a GSR analyst, testified that the application of urine can remove GSR. He also said the absence of GSR is an inconclusive finding since certain firearms or the circumstances of a particular discharge may not result in any GSR.

The investigation of the crime scene showed that approximately five shots were fired at the Salazar house. A bullet hole in the security door and front door corresponded with the bullet that struck Michael. There were also several bullet holes in the eaves on the front of the house and in the front windowsill above where Denise was standing in the living room. Four expended shell casings were found in the street in front of the house. There were three .22-caliber casings and one .380-caliber casing.

Detective Gregory Bonaime found a Jennings .22-caliber semiautomatic handgun in the roadway at Indian and Iris Streets across from a Moreno Valley elementary school. The gun was wet from fog and rain. Test fires from the Jennings handgun produced chamber marks which corresponded with those on the three .22-caliber casings found in front of the Salazar house. No .380-caliber weapon was ever found.

B. ProsecutionEvidence Presented Only to the Reyes Jury

Detective Bonaime interviewed Reyes after the shooting. Initially, Reyes denied threatening Justin and said she was at Roques house at the time of the shooting. She later admitted she was involved in a confrontation with Justin and telling him, If I had a gun right now I would kill you.

Reyes denied going to the Salazar house on the night of the shooting. She said Benton, Armster, and Varela picked her up at Roques house, then the four of them drove south to Perris Boulevard where they were apprehended. Reyes said Benton was the driver, Armster was in the front passenger seat, Varela was in the right rear passenger seat, and she was in the left rear passenger seat.

Reyes described two black semi-automatic handguns, and said Varela threw both guns out the window on the way to Perris Boulevard. Reyes directed deputies to the location where the .22-caliber Jennings handgun was found. She said the second gun, which deputies were unable to locate, was larger than the Jennings.

C. Defense Case

1. Evidence Presented to Both Juries

Armster testified in his own defense. On March 4, 2003, he ate dinner at Sanford-Keoughs house, and was standing on the porch smoking a cigarette when Varela arrived. Varela told him they had to pick up his sister, Reyes, because she had been in a fight with her boyfriend and had threatened to kill herself.

Benton drove Varela and Armster to Moreno Valley in the Taurus. Armster was in the right front passenger seat and Varela was in the rear backseat. There were no weapons in the car. Varela was very upset and said that if anyone put his hands on his sister he would kick his ass. When they arrived at Roques house, Reyes came outside and spoke to Varela and two older adults on the front porch. Reyes was upset and crying. Someone said, You dont have to leave. Benton, Armster, Varela, and Reyes then got into the Taurus, with Reyes in the left rear passenger seat, Varela in the right rear passenger seat, and Armster in the front passenger seat.

Benton drove to Briana Street in Moreno Valley, while Varela and Reyes talked in the backseat. They drove up and down Briana Street a couple of times. Varela said he wanted to go up to the door and talk to the father and son. However, someone said, No, dont go up because they might have guns. Varela replied, Well, thats not what Im here for. I want to talk to them, so Im not worried about that. Varela and Reyes continued to talk or argue as Benton drove by the house two or three more times.

According to Armster, the last time they slowed in front of the house on Briana Street, an unidentified Hispanic male ran toward their car with a chrome gun, and fired it three times. Everyone yelled, Go, go, go, drive, drive, drive, as Benton sped away with tires screeching. Varela was angry, and asked Reyes what was going on. Armster denied retrieving a gun from a house and denied having a gun. He did not see Varela fire a weapon, but he saw something black on Varelas lap, which may have been a gun. He did not see anyone throw any weapons out of the car.

After the car was illuminated by the helicopter, Armster and Varela told Benton to pull over. Armster denied he and Varela urinated on their hands. He told detectives he did not know anything about a shooting, and he denied he was at a house on Briana Street. When asked what had happened, he told the detectives, Youve got to do what youve got to do. Armster testified he meant to say he had to get a hold of his parents and the detectives would have to contact his attorney.

Neither Varela nor Reyes testified. Nor did Reyes present any evidence in her defense.

2. Testimony Presented Only to the Armster/Varela Jury

Armster denied he tried to intimidate Benton, or told Benton what to say before he spoke with his aunt, Sanford-Keough, or the district attorneys office. Armster also denied ever being in the same holding cell as Benton. Armster testified he did not really talk about the shooting with Sanford-Keough when she asked him whether he was one of the shooters. Instead, he would go around her questions.

Varela presented evidence that, when interviewed by Detective Todd Grimm, Ronald indicated he heard three shots fired from the front passenger side of the Taurus. When interviewed by Deputy Daniel Decker, Denise indicated she was looking at the car through some blinds when she saw the flash of a muzzle from a gun, heard three gunshots, dropped to the floor, and heard Michael say he had been shot. Denise said the bullets came from the right front passenger side of the car where a bald male was seated.

D. Rebuttal

1. Testimony Presented to Both Juries

Bentons aunt, Sanford-Keough, testified as a rebuttal witness for the prosecution. According to Sanford-Keough, Armster was her daughters boyfriend, and Armster and Varela lived with her at the time of the shooting. Benton, Armster, and Varela left the house together on March 4, 2003, approximately 10 minutes after Reyes called. Later that night, she discovered the four of them had been arrested.

During the two-year period between the arrests and the trial, Sanford-Keough spoke with Armster 40 or 50 times. When she asked him what happened on the night of March 4, he did not admit to shooting anything. He just said he did his part. He wasnt alone. However, he admitted he was involved eight or ten times. Several times, Sanford-Keough told Armster that Benton had spoken with people in the district attorneys office, and he should do the same.

Benton reaffirmed that he saw Armster fire a shot out the front window of his car and he heard, but did not see, shots being fired from the rear of the car, from where Varela was sitting. Benton did not see any Hispanic man crouching or running near the car. He reiterated that Armster directed them to a friends house after picking up Reyes and prior to the shooting. Benton stopped for the helicopter without anyone telling him to pull over. He did not hear Varela talk about a father and son. The two guys Varela and Reyes were looking for were not a father and son.

At the request of his wife and children, Benton decided to talk to representatives of the district attorneys office. Benton pleaded guilty to every count that was charged against him in exchange for a sentence of 22 years 4 months, and his agreement to testify truthfully against defendants. He had not been sentenced as of the time of trial.

Deputy Lance Colmer interviewed Armster following his arrest. Armster told Colmer that he rode in the car from Perris to Moreno Valley. They stopped at a residence on Sun Valley Road, drove around the block a few times, and ended up on Perris Boulevard. When the deputy mentioned the shooting, Armster said he had no idea what the deputy was talking about. Armster appeared angry and frustrated, and was defensive. He did not mention he saw a Hispanic man with a gun or a black object on Varelas lap.

2. Testimony Presented Only to the Armster/Varela Jury

Benton was in protective custody for a year and a half. He was in the same holding cell as Varela and Armster a few times before he was placed in protective custody. When he was in the general jail population, Varela told him that if anything was ever said by anybody that the paper would be put out and they would be taken care of. When Varela said this, Benton felt threatened. After Benton went to the district attorneys office, Armster and Varela often called him a [s]nitch and F-ing B[itch]. At the time of trial, Benton still felt threatened.

III. DISCUSSION

A. Substantial Evidence Supports the Conspiracy and Attempted Murder Convictions

Armster contends that insufficient evidence supports his conspiracy and attempted murder convictions because, he argues, there was no evidence he intended to kill Justin or anyone else in the Salazar house. He separately contends there is insufficient evidence that he concurrently intended to kill anyone in the Salazar house under the kill zone doctrine. Varela and Reyes join these contentions.

We conclude that substantial evidence supports each defendants conspiracy and attempted murder convictions. The evidence showed that defendants conspired to murder Justin, and specifically intended to kill Justin. The evidence also showed that, in order to kill Justin, defendants concurrently intended to kill anyone who was in the Salazar house and who either was or may have been in the line of the shots fired at the house. These persons included Jeramie, Ronald, Christina, Michael and Denise.

1. Background

All three defendants were convicted of conspiracy to commit murder in count 1. Reyes was convicted of attempting to murder Justin (count 2) and Michael (count 6). Armster and Varela were convicted of attempting to murder Justin (count 2), Jeramie (count 3), Christina (count 4), Ronald (count 5) and Michael (count 6.) None of the defendants were charged with attempting to murder Denise. Instead, they were each charged and convicted of assaulting Denise with a firearm (count 7), and of shooting at an occupied dwelling (count 8). Reyes was also charged and convicted of making criminal threats to Justin (count 9).

2. Standard of Review

When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidencei.e., evidence that is credible and of solid valuefrom which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same standard of review applies when a conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)

If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.] (People v. Thomas (1992) 2 Cal.4th 489, 514.) Reversal is warranted only where it clearly appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

3. Applicable Law

(a) Conspiracy

A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance of the conspiracy. (People v. Morante (1999) 20 Cal.4th 403, 416.) Conspiracy to commit murder requires proof that the defendant was one of the participants who harbored the specific intent to kill. (People v. Petznick (2003) 114 Cal.App.4th 663, 680-681.)

It is not necessary to show that the conspirators met and actually agreed to commit the offense which was the object of the conspiracy. Instead, the agreement or unlawful design of conspiracy may be proved by circumstantial evidence. (People v. Zamora (1976) 18 Cal.3d 538, 559.) The circumstances from which a conspiratorial agreement may be inferred include the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties [and] the interests of the alleged conspirators . . . . (People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20-21.)

(b) Attempted Murder

Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623.) Intent to unlawfully kill and express malice are, in essence, one and the same. . . . Express malice requires a showing that the assailant either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur. . . . . (People v. Smith (2005) 37 Cal.4th 733, 739, citations omitted.)

Intent to kill is rarely proved by direct evidence; rather, it must usually be inferred from circumstantial evidence. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-1208.) Indeed, One who intentionally attempts to kill another does not often declare his state of mind either before, at, or after the moment he shoots. Absent such direct evidence, the intent obviously must be derived from all the circumstances of the attempt, including the putative killers actions and words. . . . (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)

Furthermore, [t]o be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. (People v. Bland (2002) 28 Cal.4th 313, 328.) Where, however, the defendant intends to kill one victim (the primary victim), and the means employed in attempting to kill the primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended [to kill] all who are in the anticipated zone. (Id. at pp. 329-330.) The defendants intent to kill others in the anticipated zone of harm or kill zone is concurrentwith his intent to kill the primary victim. A concurrent intent to kill everyone within an anticipated kill zone may be inferred from the nature and scope of the attack. (Ibid.)^[9]

For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure As death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a kill zone to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. (People v. Bland, supra, 28 Cal.4th at pp. 329-330.)

In People v.Vang (2001) 87 Cal.App.4th 554, two defendants shot multiple rounds at two occupied dwellings, using high-powered, wall-piercing weapons. (Id. at pp. 557-558, 564.) Multiple attempted murder convictions were affirmed against both defendants ‑‑ one for each person in the two dwellings ‑‑ even though the defendants may have intended to target only one person in each dwelling and could not see and were not even necessarily aware of how many other people were in each dwelling. (Id. at p. 564.) The court said, The jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up. . . . The fact they could not see all of their victims did not somehow negate their express malice or intent to kill as to those victims who were present and in harms way, but fortuitously were not killed. (Id. at pp. 563-564.)

4. Analysis and Conclusions

Here, substantial, circumstantial evidence showed that all three defendants agreed to kill Justin and specifically intended to kill Justin. The evidence also showed that all three defendants concurrently intended to kill anyone who either was or may have been in the line of fire of the bullets defendants fired at the front door and front window area of the Salazar house. These persons included Jeramie, Ronald, Christina, Michael, and Denise.

First, Reyes told Justin she had a bullet with his name on it, and she was going to call her brother, Varela, and shoot up Justins house. She also told Justin that he and his father, Ronald, were lying mother-fuckers, indicating she knew or at least believed that Justin and Ronald had accused her of cheating on Roque. Then, after Reyes called Varela in Perris, Benton drove Armster and Varela to Moreno Valley, and Reyes met with Armster and Varela outside Roques house. Immediately thereafter, all three defendants got into Bentons Taurus, and Benton drove defendants to Briana Street and the Salazar house.

Benton drove defendants by the Salazar house several times. Varela was already armed. Armster stopped at a friends house and obtained a throw away handgun. Then defendants returned to the Salazar house. From the passenger side of the Taurus, Armster and Varela simultaneously opened fire on the front door and front living room window area of the house. Together, they fired five or more shots. One bullet pierced the front door, and others struck the top front windowsill and eaves of the house.

Based on this evidence, the juries could have reasonably inferred that Reyes told Armster and Varela she wanted to kill Justin by shooting up the Salazar house, and kill anyone else who might get in the way. The juries could have also reasonably inferred that Armster and Varela shared Reyess specific intent to kill Justin, and her concurrent intent to kill anyone else in the Salazar house, based on their conversations with Reyes and their actions of firing five or more shots at the front of the Salazar house.

Varela argues that only three of the six people in the Salazar house at the time of the shooting, namely, Justin, Michael, and Denise, were in the kill zone, that is, near the front door where the shots were fired. The other three, he argues, were not in the kill zone. Ronald was upstairs looking out Jeramies bedroom window, and Christina and Jeramie were in the kitchen. Valera reasons that here, unlike in Vang, there was no hail of bullets, no evidence of the use of a high velocity weapon, and no evidence that shots were indiscriminately fired at the entire residence, which might arguably make the entire residence and all persons located therein with[in] a kill zone.

We disagree with Varelas view of the evidence and the kill zone doctrine. Defendants act of firing five or more shots at the Salazar house showed they harbored a specific intent to kill Justin, and a concurrent, specific intent to kill anyone else who might have been in their line of fire. In Vang, the court concluded that [t]he jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up. . . . The fact they could not see all of their victims did not somehow negate their express malice or intent to kill as to those victims who were present and in harms way, but fortuitously were not killed. (People v. Vang, supra, 87 Cal.App.4th at pp. 563-564.)

Here, too, the juries drew a reasonable inference, in light of the number of shots fired at the house, and the use of at least one weapon strong enough to pierce a security door and front door, that defendants intended to kill everyone who might have been in their line of fire. This includes all six persons who were in the house. The fact that Ronald, Christina, and Jeramie were not in the immediate area where the defendants bullets happened to land, or that defendants could not see and did not know that six persons were in the house, does not negate their express malice and intent to kill everyone who might have been in their line of fire. Defendants actions evidenced an intent to kill everyone who was in the house.

In sum, substantial evidence supports defendants convictions for conspiracy in count 1, because the evidence showed that all three defendants conspired to kill Justin and specifically intended to kill Justin. Substantial evidence also supports defendants convictions for attempted murder in counts 2 through 6, because the evidence showed that all three defendants specifically intended to kill Justin, and concurrently intended to kill everyone else who was in the Salazar house and who either was or may have been in the way of the bullets defendants fired at the house.

B. The Prosecutor Did Not Improperly Vouch for the Credibility of Witness Benton

Armster contends the prosecutor vouched for the credibility of Benton during her rebuttal case, by eliciting testimony from Benton that the judge, not the prosecutor, was the final arbiter of whether he had testified truthfully at trial. This, Armster argues, suggested that the judge or the prosecutor had taken steps outside the record to assure Bentons truthfulness.

Armster also claims the prosecutor vouched for Bentons credibility during her opening statement, and again during her rebuttal argument, by making statements suggesting she was personally assuring the jury of Bentons credibility. Varela and Reyes join these claims without further argument. We conclude that no improper vouching occurred.^[10]

1. Applicable Law

A prosecutor is not permitted to vouch for the credibility of a witness based on her personal experiences or beliefs, or on other evidence outside the record. (People v. Frye (1998) 18 Cal.4th 894, 971.) Improper vouching generally involves an attempt to bolster a witness by reference to facts outside the record. (People v. Huggins (2006) 38 Cal.4th 175, 206.) Thus, it is improper vouching for a prosecutor to offer the impression that the prosecutor or the government has taken steps, outside the record, to compel, assure, or guarantee a witnesss truthfulness at trial. (People v. Frye, supra, at p. 971; United States v. Brown (9th Cir. 1983) 720 F.2d 1059, 1073-1074.)

2. The Judge as the Final Arbiter of Bentons Truthfulness

We first address Armsters claim that the prosecutor improperly vouched for the credibility of Benton during her rebuttal case, when she established that the judge, rather than she, was the final arbiter of Bentons truthfulness pursuant to the terms of Bentons plea agreement. In order to place this evidence in context, we briefly recount the defense evidence that preceded it.

(a) Background

Armster testified in his own defense, and Armsters version of events suggested that Benton was not credible. Thus, the prosecutor recalled Benton during her rebuttal case. In her direct examination of Benton, the prosecutor established that, unlike Armster, Benton did not see a Hispanic man run toward the Taurus and fire shots. Nor did he hear anyone in the Taurus mention seeing such a man. Benton also contradicted other aspects of Armsters testimony.

The prosecutor also asked Benton why he had decided to talk to or cooperate with the district attorneys office. Benton responded that his wife and children had asked him to, and he denied that anyone had threatened or coerced him into talking to the district attorneys office. Next, the prosecutor showed Benton a copy of his plea agreement, and established that he had not been forced or coerced into signing it. The prosecutor also established that, pursuant to the agreement, Benton pleaded guilty to unspecified charges in exchange for a 22-year 4-month prison sentence.

In cross-examining Benton on behalf of Armster, Attorney Bruce Karey attacked Bentons credibility by showing he had avoided three or four different life sentences by entering into the plea agreement. Karey also showed that Benton had not been entirely truthful with deputies following his arrest. Karey then established that Benton had not been sentenced as of the time of trial, and suggested his plea agreement gave him a motive to testify, not truthfully, but to what the prosecutor wanted him to say. Karey asked Benton, The deal that youve made with the People is not complete until youve been sentenced? (Italics added.) Benton answered, I guess so. I guess thats correct. Karey then asked, If you did not testify in this trial, you would not get the deal you made. Is that your understanding? (Italics added.) Benton answered, Correct.

In the prosecutors redirect examination of Benton, the following colloquy took place:

[Prosecutor:] And so that were clear, that No. 11 said ‑‑ it says a judge of the Superior Court shall be the final arbiter. Its not me, right? Its your understanding that Im not [the one] to make the final determination about the quality of your testimony; is that right?

[Benton:] Okay. Thats what it says.

[Prosecutor:] And its not anybody in my office who was the final arbiter as to the truthfulness of your testimony, and you initialed that part that said its a judge of the Superior Court, right?

[Benton:] Correct.

Bentons plea agreement was later admitted into evidence on the prosecutions motion, and without objection. Then, in closing argument, the prosecutor said, And so that were clear and so that you recall that [Benton] was clear, there was nothing that the district attorney did. It is up to the judge. She is the final arbiter . . . . (Italics added.)

(b) Analysis

Armster argues that, by pointing out to the jury that the judge was the final arbiter of whether Benton testified truthfully, the prosecutor improperly implied that the government had taken steps to assure the veracity of witness Bentons testimony. (Underlining omitted.) More specifically, Armster argues, [t]he clause in the plea agreement whereby a trial judge was the arbiter of whether Benton was being truthful [1] indicated to the jury that the government had taken steps to compel [Benton] to be truthful . . . [2] implied that the government had taken steps to assure the veracity of Bentons testimony . . . and [3] portrayed the prosecutor with the assistance of a judge as the guarantor of Bentons truthfulness. We disagree.

Nothing in Bentons plea agreement or the fact the judge was the final arbiter of Bentons truthfulness at trial implied or suggested that the judge, the prosecutor, or anyone else had taken steps, either on or off the record, to compel, assure, or guarantee Bentons truthfulness.

Furthermore, the prosecutor had a duty to disclose to the jury anything her office had done to induce Benton to testify, including the existence of his plea agreement. (People v. Frye, supra, 18 Cal.4th at p. 971 and cases cited.) And, although the prosecutor was not necessarily required to present a verbatim recitation of the terms of the plea agreement (see ibid.), her rebuttal point that the judge, not she, was the final arbiter of Bentons truthfulness was a fair response to Attorney Kareys point, made in cross-examining Benton, that Benton would not get the deal [he] made unless he testified truthfully. This point suggested that the prosecutor would determine Bentons truthfulness, and Benton had a motive, based on his plea agreement, to testify to what the prosecutor wanted him to say. The prosecutors rebuttal point that the judge was the final arbiter of Bentons truthfulness was a proper response to these suggestions.

Armsters reliance on United States v. Brown, supra, 720 F.2d. 1059 and United States v. Roberts (9th Cir. 1980) 618 F.2d 530 is misplaced. Both cases stand for the proposition that it is impermissible vouching for a prosecutor to imply that the government has taken steps outside the record to assure the veracity of its witnesses. Both cases are distinguishable from the present case, because both cases involved improper vouching based on evidence outside the record. (United States v. Brown, supra, at pp. 1069-1073 [prosecution presented evidence that witnesses could be believed because their plea agreements required them to submit to polygraph tests]; United States v. Roberts, supra, at pp. 535-536 [prosecution argued that witness could be believed because police detective, who did not testify but was present in court, was there to assure he carried out his plea agreement and testified truthfully].)

Here, in contrast, the prosecutor did not tie Bentons credibility to any evidence outside the record. She did not suggest that Benton should be believed because the judge was the final arbiter of his truthfulness for purposes of his plea agreement. Nor did she suggest that she or the judge had any means of verifying Bentons truthfulness. Thus, the evidence that the judge, and not the prosecutor, was the final arbiter of Bentons truthfulness did not constitute improper vouching.

3. The Opening Statement and Rebuttal Argument Remarks

In her opening statement to the jury, the prosecutor said, Youre going to find, I think, that [Benton] is a very open and honest and meek individual. And in closing argument, the prosecutor, referring to Benton, said, And he stood up and he said, This is what I know, and he did so as best he could. Armster argues that, by making these remarks, the prosecutor personally assured the jury of Bentons credibility. We disagree.

Neither of the prosecutors remarks personally assured the jury that Benton would be or was a credible witness, or constituted impermissible vouching. The opening remark told the jurors what the prosecutor believed they would find based on their own assessment of Benton and his testimony ‑‑ that is, that Benton was open and honest and credible. The rebuttal remark expressed the prosecutors view of what the evidence had shown ‑‑ that is, that Benton had testified truthfully. As such, both remarks were permissible. (See. e.g., People v. Ward (2005) 36 Cal.4th 186, 216.)

Regarding the I think reference in the opening remark, Armster points to United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1147, footnote 3, where the court said, In drawing the line between acceptable statements grounded on inferences from the evidence and unacceptable statements representing an improper suggestion of personal opinion, [courts] have been especially sensitive to the form of prosecutorial statements ‑‑ so that use of the prefatory phrase I submit has been preferred to the use of I think, in part because the latter is more likely to lead the jury to give undue credit to the statement that follows . . . . (Italics added.)

Here, however, the prosecutors use of I think in her opening remark, when considered in context, was not at all likely to cause the jury to give undue credit to the remark or construe it as a personal assurance of Bentons credibility. Instead, the jury must have understood the remark as telling the jurors what the prosecutor thought they would conclude based on their assessment of Benton and his testimony ‑‑ that is, that Benton was credible. (People v. Cunningham (2001) 25 Cal.4th 926, 1001 [where claim is based on comments made by prosecutor before the jury, question is whether there is a reasonable likelihood the jury construed or applied the complained-of remarks in an objectionable fashion].)

C. There Was No Evidence to Support Instructions on the Lesser Included Offense of Attempted Voluntary Manslaughter in Counts 2 Through 6

Varela and Reyes contend the trial court erroneously failed to instruct their juries sua sponte in counts 2 through 6, on the lesser included offense of attempted voluntary manslaughter based on a sudden quarrel or heat of passion. Armster joins this contention without additional argument. We conclude there was no evidence whatsoever to support instructions on attempted voluntary manslaughter based on heat of passion. Thus, the trial court did not err in failing to give such instructions sua sponte.

None of the defendants requested attempted voluntary manslaughter instructions in the trial court. Nevertheless, a trial court has a duty to instruct sua sponte on all lesser included offenses where there is substantial evidence that the lesser included offense, but not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.) A killing upon a sudden quarrel or heat of passion can negate the malice element of murder, and reduce the offense of murder to voluntary manslaughter. (People v. Lee (1999) 20 Cal.4th 47, 58-59;  192, subd. (a).)

The factor that distinguishes the heat of passion form of voluntary manslaughter from murder is provocation. The provocation . . . must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. (People v. Lee, supra, 20 Cal.4th at p. 59.) The provocation must also cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] Heat of passion arises when at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment. [Citation.] (Ibid.)

Furthermore, where sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter . . . . (People v. Breverman, supra, 19 Cal.4th at p. 163.) Heat of passion may not be based upon revenge. (People v. Burnett (1993) 12 Cal.App.4th 469, 478.) [R]evenge does not qualify as a passion that will reduce a killing to manslaughter. (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704.)

Here, there was no evidence that any of the defendants were reasonably provoked into attempting to kill Justin or anyone else in the Salazar house. Furthermore, it is specious to argue there was any such evidence. Defendants belief that Justin had falsely claimed that Reyes had cheated on Roque and was responsible for Roque breaking up with Reyes was wholly insufficient, as a matter of law, to provoke a reasonable person of average disposition into attempting to kill Justin or anyone else in the Salazar house. Defendants clearly acted out of calculated revenge, rather than the heat of passion without due deliberation or reflection.

Furthermore, even if defendants had been adequately or reasonably provoked, a significant amount of time passed between the time they learned of Justins cheating accusation and the time they shot at the Salazar house. After Reyes learned of Justins accusation, she called Varela, who then spoke to Armster and Benton about driving from Perris to Moreno Valley to meet Reyes at Roques house. Even by the time Armster, Varela, and Benton had reached Roques house and met with Reyes, Reyes, Armster, and Varela had had sufficient time to reflect on their actions and cool off. And, after leaving Roques house, Armster, Varela, Reyes, and Benton drove by the Salazar house several times, headed back toward Roques house, went to a friends house where Armster retrieved a gun, then went back to the Salazar house where they finally fired as many as five shots at the house. By the time defendants shot at the Salazar house, they had had more than sufficient time to reflect on their actions.

Varela further contends this court should reduce his attempted murder convictions to attempted voluntary manslaughter because, he argues, there is no evidence he is guilty of attempted murder, only attempted voluntary manslaughter. Armster and Reyes join this contention without further argument. We reject this contention because, as discussed, there is no evidence that any of the defendants committed attempted voluntary manslaughter in counts 2 through 6, but not attempted murder.

D. The Trial Court Properly Refused to Instruct on Two Lesser Related Offenses in Counts 2 Through 6

At trial, Reyess counsel requested, but the trial court refused to give, instructions on the lesser related offenses of assault with a deadly weapon ( 245, subd. (a)(1)), and discharge of a firearm at an inhabited dwelling ( 246), on the attempted murder charges in counts 2 through 6. On this appeal, Reyes contends the courts refusal to give these lesser related offense instructions violated her Sixth and Fourteenth Amendment rights to a jury trial and due process, including her right to present a defense. She argues the instructions were intrinsic to [her] defense because there was evidence from which her jury could have reasonably concluded that, although she wanted to frighten Justin by having her brother Varela shoot up his house, she did not harbor an intent to kill Justin or any member of his family. Armster and Varela join this contention without further argument.^[11]

We reject the contention as to all defendants. In People v. Birks