P. v. Jimenz

Filed 4/20/07 P. v. Jimenz CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Darlene E. Schempp, Judge. Affirmed with modifications.

Patricia J. Ulibarri, 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 and Mary Jo Graves, Senior Assistant Attorneys General, Scott A. Taryle and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

________________________

I. INTRODUCTION

Defendant, Giovanny Antonio Jimenez, appeals from his convictions for: six counts of willful, deliberate, and premeditated attempted murder (Pen. Code,^[1] 187, subd. (a), 664); one count of shooting at an inhabited dwelling ( 246); two counts of discharging a firearm from an automobile ( 12034, subd. (c)); and one count of mayhem. ( 203.) Further, defendant appeals from juror findings that he: used a firearm in the commission of the attempted murders, shooting from an automobile, and mayhem; inflicted great bodily injury against the victim named in counts 7 and 10; and all of the offenses were committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1)(c), 12022.53, subds. (b), (c), (d), 12022.7, subd. (b).) Defendant argues that: there was insufficient evidence to support his convictions as to counts 2, 3, 4, 5, 7, and 8; the prosecutor committed misconduct; and he was denied effective assistance of counsel. We conclude there are a number of sentencing errors which warrant correction. We affirm with modifications.

II. FACTUAL BACKGROUND

A. June 27, 2004 Shootings (Counts 7-11)

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 2 a.m. on June 27, 2004, Jose Crescencio left his home on Variel Street with three other men. Mr. Crescencio was accompanied by a nephew, Cesar Zamudio, and Ismael Hernandez. The third person was known only as Angel to Mr. Crescencio. The four men went to buy food at a nearby Carls Jr. restaurant. As they returned, the men walked out of an alley onto Variel Avenue. Mr. Hernandez and the man identified only as Angel were walking within touching distance in front of Mr. Crescencio. Mr. Zamudio was just behind Mr. Crescencio. A white car came out of a nearby parking lot, pulled slowly into the opposing traffic lane and stopped close to the men. Defendant was driving the white car. Another individual was seated on the front passenger side. Someone in the car told the four men in English to stop.

Immediately thereafter, Mr. Crescencio saw defendant pull out a gun and begin shooting. Mr. Crescencio saw defendants face and ran. The other three men were able to run to a nearby parking lot. Mr. Crescencio heard approximately four shots. The last shot struck Mr. Crescencio. After he fell to the ground, Mr. Crescencio could not move. After the shooting, Mr. Crescencio lost all mobility from the chest down. Prior to the shooting, Mr. Crescencio was a construction worker. At the time of trial, Mr. Crescencio still had a bullet in his spine. Mr. Crescencio heard additional shots after he fell.

Mr. Hernandez saw a gun come out of the drivers side window. At the preliminary hearing, Mr. Hernandez testified that the driver pulled out a gun. Mr. Hernandez could not remember what he testified to at the preliminary hearing. Mr. Hernandez heard six or seven shots as he ran away. Mr. Hernandez believed there were two individuals inside the white car who were shooting based upon the number of shots fired. Mr. Hernandez identified defendant as the driver from a photographic lineup, at the preliminary hearing, and at trial.

Mr. Zamudio heard shots being fired immediately after the white car stopped. Mr. Zamudio dropped to the ground. Mr. Zamudio heard more than six shots. After the shots stopped, Mr. Zamudio stood up and saw defendant pointing a gun from the drivers seat. The gun was pointed in Mr. Crescencios direction. The car pulled quickly away. Mr. Zamudio identified defendant as the driver and the assailant from a photographic lineup. Mr. Zamudio also identified defendant at the preliminary hearing and at trial.

Julissa Ruiz stepped outside on Independence Street at approximately 2 a.m. on June 27, 2004. Ms. Ruiz had a conflict with her boyfriend, who had left her home. Ms. Ruiz could see Variel Avenue. A car that resembled the one depicted in exhibit No. 3 drove very slowly in her direction. Ms. Ruiz saw two men in the car as it passed by. After they had passed her, Ms. Ruiz saw someone in the back seat of the car. The car drove into the parking lot of a Save-On store and Dominos Pizza. Within a minute thereafter, Ms. Ruiz heard several gunshots. Ms. Ruiz later identified the car from photos shown to her by the police indicating, [It] looked a lot like it.

While in his apartment at 7229 Variel, Miguel Cortez was awakened by the sound of gunshots at approximately 2 a.m. on June 27, 2004. Mr. Cortezs curtains fell from the wall. A bullet caused the curtain to fall. A short time later, a police officer spoke to Mr. Cortez. The officers looked around his apartment. A .45 caliber bullet was found on Mr. Cortezs bed.

Eusebro Figueroa was asleep on the ground floor of the same address a short time before 2 a.m. on June 27, 2004. Mr. Figueroa was awakened by gunshots. After the police arrived, Mr. Figueroa noticed a bullet hole in the front of his building and others in his screen door, wooden entry door, and a cabinet inside the apartment. Mr. Figueroa found a bullet on the floor in his apartment.

California State Traffic Officer Gorge Etmon was on patrol with a partner, identified only as Officer Nichols, at approximately 4:55 a.m. on June 27, 2004. The officers pulled over a 1984 Oldsmobile Cutlass driven by defendant because it was weaving between lanes. This was the same car identified as the one at the scene of the shooting earlier that morning. Three passengers also in the car at the time it was stopped were identified as Mis Castillo, Miguel Rodriguez, and John Nieto. (Later, it was verified that Miguel Rodriguez was not the true name of one of the persons in the car. In fact, he was Miguel Uribe.) Defendant had the smell of alcohol on his breath. Defendant did not have a valid drivers license. Defendant was arrested for driving under the influence. The Oldsmobile Cutlass was impounded.

Los Angeles Police Detective Shands McCoy investigated the June 27, 2004 shooting. Detective McCoy learned that .45 caliber casings had been recovered from the scene. Los Angeles Police Officer Rufo Amores went to the crime scene on June 27, 2004. As Officer Amores collected evidence, another officer photographed the crime scene. Officer Amores collected six spent rounds and casings: one of the rounds was imbedded in a wall; another was at the base of a floorboard; a bullet on Mr. Cortezs bed; and one round in a pickup truck with a shattered window. The front of the pickup truck was also damaged. Officer Amores also collected bloody clothing that had apparently been cut off the victim, Mr. Crescencio, who was wounded.

B. July 9, 2004 Shootings (Counts 2-6)

At approximately 11 p.m. on July 9, 2004, Amber M. was standing in the area of 7300 Variel Street with Victoria Demetrio, Miguel De Meza, Estaban Uribe,^[2]and Luis Monroy. Maribel Aquino was standing on her balcony to the left of the front door. None of those present belonged to a gang. Amber was familiar with the gangs in the area because she grew up nearby. The gang that controlled the area had placed graffiti on the intercom at the front of the apartment there.

Amber had stepped away from the group who were standing in front of the building to make a telephone call. Amber saw a Nissan Maxima coming down Variel Street at approximately 15 miles per hour. The car slowed to a stop near the building. Amber and Mr. De Meza noticed defendant on the front passenger side sitting on the ledge of the open car window. Defendant was facing the front door of the building. Defendant pointed a silver gun over the top of the car toward Ambers friends, who were in front of the building. Defendant asked, Where are you from? Mr. De Meza responded: I dont gangbang. We dont gangbang. Defendant said, Fuck [the local gang], this is [the rival gang]. Amber then heard approximately six gunshots before the car drove away. Standing in the front of the building when the shots were fired were Ms. Demetrio, Mr. De Meza, Estaban, and Mr. Monroy. Amber and others ran inside the building. Mr. De Meza saw the muzzle flash of the first shot. Mr. De Meza ducked behind a brick wall. After the shooting, Amber and Mr. De Meza noticed that the glass portions of the front doors had been shattered. Mr. De Meza also saw: three bullet holes in the brick wall; another bullet hole in the adjacent unit; and one in the wooden fence. One of the bullets struck inches away from Mr. De Mezas head. Both Amber and Mr. De Meza were taken by police to a field showup, where they positively and independently identified defendant as the individual who fired the shots.

Mr. Monroy had grown up in the area and knew of local rival gangs. Mr. Monroy heard Mr. De Meza say, We dont bang . . . . Mr. Monroy then heard Fuck [the local gang], this is [the rival gang]. Mr. Monroy heard gunshots immediately thereafter. Mr. Monroy saw a car in the middle of the street. Mr. Monroy jumped over a short wooden fence onto Ms. Aquinos balcony. Thereafter, Mr. Monroy came back over the fence. Mr. Monroy saw a car driving away. A black-and-white police car followed the car. Mr. Monroy was only a few feet from the front door when the glass shattered in the door window.

Martin Burgara was asleep in his ground floor apartment at 7300 Variel Street. At approximately 11 p.m. he heard about four gunshots. After hearing the shots, Mr. Burgara saw a hole in the wall of his apartment. Mr. Burgara found the bullet near some water bottles that were broken. He also noted a hole in the fence outside the apartment and one in the outside wall of the apartment building. At the time of the shooting, Mr. Burgaras wife, daughter, and brother were inside his apartment.

Los Angeles Police Officers Steve Lee, Victor Renzelman, and Norman Peters were patrolling the area of Wyandotte and Variel Streets in a black and white marked car at approximately 11 p.m. on July 9, 2004, when they heard gunshots. When they approached Variel Street, Officer Lee saw a dark-colored, greenish/bluish[] Nissan Altima driving southbound. Defendant was on the front passenger side of the car. Defendant was sitting on the door frame outside the open window with his arms resting on top of the roof of the car. When the Nissan passed the police car, defendant jumped back inside the car. Based on his observations, Officer Lee believed there might be a connection between defendant and the shooting.

The officers requested backup assistance from additional police units and a helicopter. The officers initially followed the car without activating their red lights. (Officer Lees car did not have a light bar above the passenger compartment.) The Nissan and the officers turned onto Sherman Way. Another marked black and white police car joined them a short time later. At Valerio Street, the driver of the Nissan failed to stop at a stop sign, made an abrupt right turn, and sped up. Officer Lee saw an object being thrown out of the front passenger window. The officers continued to follow the Nissan. When the officers were aware of the helicopters presence, they activated their forward-facing red light and both spotlights to stop the car. After the car was stopped, defendant was removed from the front passenger seat. David Gonzalez was removed from the drivers seat. A short time later, a handgun was recovered from where the object had been thrown from the Nissan. A .45 caliber expended casing was found on the front passenger seat inside the Nissan.

Officer Dennis Mesa arrived at the scene of the July 9, 2004 shooting. Officer Mesa collected evidence at the scene. The evidence was also photographed. Four spent casings were found at the scene. Officer Mesa found the glass pane of the entryway to the building was shattered. Officer Mesa also saw: two bullet holes in bars in front of the apartment; another hole in the fence; a hole in the stucco; and a hole on the inside of the apartment. A spent bullet was found inside the apartment. Three projectiles were found on the walkway.

C. The Investigations

Between July 10 and 12, 2004, Detective McCoy learned that .45 caliber casings were found at the scene of a shooting on July 9, 2004. Detective McCoys partner, identified only as Detective Hancock, investigated the July 9 shooting. Detective McCoy believed the shootings might be related. Detective McCoy contacted the firearm investigation unit to request a comparison of the casings found at both crime scenes. Following ballistics testing, all of the casings were later determined to have been fired by the semiautomatic pistol recovered following the July 9, 2004 shootings.

Detective McCoy learned the defendant had been arrested by California Highway Patrol state traffic officers on June 27, 2004. Thereafter, Detective McCoy went to the tow yard where the car defendant drove on June 27, 2004 had been taken. Photographs were taken of the automobile, a 1984 Oldsmobile Cutlass. One of the arm rests inside the car had graffiti from the rival gang written on it. Detective McCoy had been a gang officer for 12 years and worked with Latino gangs in the San Fernando Valley. Detective McCoy assembled a six-pack photo display, which included defendants photo. Another photo display included Mr. Gonzalezs photo. Both photos were taken when defendant and Mr. Gonzalez were arrested following the July 9, 2004 shootings.

Detective McCoy became aware that Mr. Uribe had been a passenger in defendants car when it was stopped by highway patrol officers on June 27, 2004. Detective McCoy interviewed Mr. Uribe on two occasions. The second interview was recorded without Mr. Uribes knowledge. While testifying, Mr. Uribe acknowledged the car had been driven by Giovanny. But Mr. Uribe denied recognizing defendant. Mr. Uribe claimed not to know Giovannys surname. Mr. Uribes friends John and Luis were also passengers. Mr. Uribe got into defendants car. Luis then asked defendant where they had been. However, when John started to explain, defendant said to shut up. Mr. Uribe thought defendant and one of the passengers, identified only as Slim, got rid of the gun. Mr. Uribe deduced the gun was disposed of before they picked him up. Mr. Uribe overheard a conversation between defendant and Slim about the gun when they stopped at a gas station. At trial, Mr. Uribe could not recall defendant and the person referred to as Slim having discussed getting rid of the gun. Mr. Uribe acknowledged that he had been afraid that something would happen to his family because he testified. Mr. Uribe told Detective McCoy that John panicked when the highway patrol officers pulled over defendants car. John said they shot someone in Canoga Park. Defendant told John, [S]hut up, dont say anything else. When Mr. Uribe was questioned by the prosecutor, the following occurred: Q Did you tell detective [McCoy] back on September 30th of 2004 that Johnny panicked because they had shot at some [rival gang members] earlier? [] A No, I didnt say that. When asked when he learned his conversation had been recorded, Mr. Uribe testified, I barely learned it like when I got here. When interviewed by Detective McCoy, Mr. Uribe had written a statement which stated: Right before [the California Highway Patrol Officers] stop [sic] us, John had woken up and then I think that it was John, started tripping up because of what they did in Canoga. All they said they shoot at [rival gang members] before they pick us up. . . . Either [defendant] or Slim keep on talking, I think. I heard them . . . stashing the gun, but I am not sure who said what gas station at Parthenia.

D. Gang Evidence

Officer John Sawada was assigned to the gang enforcement detail for over two years. He also worked on gang cases prior to that assignment and was on patrol in the gang area. Officer Sawada specialized in the gang to which defendant belonged. Officer Sawada interviewed gang members in both consensual encounter and arrest situations. Officer Sawada gained information regarding gang territory and typical gang enterprises. In 2004, there were approximately 200 members in defendants Latino gang. The gang had been known to engage in narcotics sales, assaults with deadly weapons, carjackings, witness intimidation, and homicides. By imposing fear in the community, the members gain respect within the gang. The gang members also gain respect by the crimes they commit. The homicide of a rival gang member would elevate a gang member to the highest respect within the gang. Graffiti referring to defendants gang is found within the gang territory. The Canoga Park area includes rival gangs. When confronted by someone they believe is a rival gang member, they might inquire, Where are you from[?] Even if the individual responds, I am from nowhere[,] they are not necessarily safe from harm. By killing someone in a rival gangs territory, the gang member can boast about it and gain respect. Often the gang member will shout out the name of his gang prior to shooting to let the rival gang know they are in their territory. Variel and Wyandotte Streets are within the rival gangs territory. A gang member still has bragging rights when he does not shout his gang affiliation prior to shooting in a rival gang territory.

Officer Sawada was familiar with Jaime Albert Cordova, a member of defendants gang. Mr. Cordova was convicted of four counts of carjacking, three counts of kidnapping, and one count of witness intimidation. Those crimes were found to have been committed to promote the interests of the gang. Hector Mazo was a member of defendants gang. Mr. Mazo was convicted of narcotics sales for the benefit of the gang. Defendant admitted that he was a member of the local gang. Defendant had gang-related tattoos on his chest, arms, and back. Mr. Gonzalez also had gang tattoos on his back, neck, and belly. Mr. Nieto was also known to be a member of the local gang.

Officer Sawada considered the hypothetical scenario that a car containing one or more local gang members drove into rival gang territory and shot several times at a group of young Latinos. Officer Sawada believed that individuals involved in such activity send a message that their gang is now in control of the area. This brings about fear and intimidation within the community. Officer Sawada also considered a hypothetical situation where a car containing two known gang members drove into rival gang territory, approached a group of young Latinos, and asked where they were from. The response was, We dont gangbang[.] Thereafter, the gang members shouted, Fuck [the rival gang], this is [the local gang] and began to fire shots at the group. Officer Sawada believed the scenario represented disrespect for the rival gang. Further, such a course of events demonstrated that the gang can enter their territory as they please and shoot whomever they want. Officer Sawada believed the purpose behind the acts in both hypothetical scenarios would be to benefit the gang.

III. DISCUSSION

A. Sufficiency of the Evidence, Counts 2-5, 7, and 8

Defendant was convicted of the willful, deliberate, and premeditated attempted murder of: Mr. De Meza (count 2); Mr. Monroy (count 3); Ms. Demetrio (count 4); Mr. Uribe (count 5); Mr. Crescencio (count 7); and Mr. Hernandez (count 8). Defendant argues: at most that the driveby shootings were unfocused acts of violence with no targeted victim in mind; the prosecution failed to prove beyond a reasonable doubt that [he] created a kill zone to ensure the death of a primary victim; and the jury could not infer from the method employed by defendant an intent to kill others concurrent with the intent to kill the targeted victims. Defendant does not challenge the sufficiency of the evidence that: he was the perpetrator of the shootings; he personally used firearms; Mr. Crescencio suffered great bodily injury; or the gang related nature of the crimes.

In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: [We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (People v.Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v.Hayes (1990) 52 Cal.3d 577, 631; People v.Johnson (1980) 26 Cal.3d 557, 576.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v.Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v.Marshall (1997) 15 Cal.4th 1, 34; People v.Ochoa (1993) 6 Cal.4th 1199, 1206; People v.Barnes (1986) 42 Cal.3d 284, 303; Taylor v.Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v.Bloom (1989) 48 Cal.3d 1194, 1208; People v.Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held, Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

The California Supreme Court has held: Murder does not require the intent to kill. Implied malicea conscious disregard for lifesuffices. [Citations.] (People v. Bland (2002) 28 Cal.4th 313, 327.) In contrast, [a]ttempted 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; see People v. Swain (1996) 12 Cal.4th 593, 604-605.) (People v. Smith (2005) 37 Cal.4th 733, 739.) Our Supreme Court further held: [I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendants acts and the circumstances of the crime. [Citation.] There is rarely direct evidence of a defendants intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendants actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range 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 . . . . [Citation.] (People v. Smith, supra, 37 Cal.4th at pp. 741, 742; quoting People v. Lee (1987) 43 Cal.3d 666, 679, and People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [where a defendant fired a bullet at two officers, a reasonable jury could infer he intended to kill both]; see also People v. Villegas (2001) 92 Cal.App.4th 1217, 1224-1225; People v. Vang (2001) 87 Cal.App.4th 554, 563-565 [attempted murder convictions affirmed where defendant indiscriminately shot at occupied dwellings].)

The California Supreme Court has also held: The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them. [] . . . The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity. . . . Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. (People v. Bland, supra, 28 Cal.4th at pp. 329-330, quoting Ford v. State (Md. 1993) 625 A.2d 984, 1000-1001, fn. omitted; see People v. Smith, supra, 37 Cal.4th at pp. 745-746.)

In Bland, the defendant shot at a rival gang member. In the car with the gang member were two other individuals. The two other individuals were not gang affiliated. The gang member was killed, while the two others survived their gunshot wounds. Our Supreme Court held: Even if the jury found that defendant primarily wanted to kill [the gang member] rather than [his] passengers, it could reasonably also have found a concurrent intent to kill those passengers when defendant and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone. Such a finding fully supports attempted murder convictions as to the passengers. (People v. Bland, supra, 28 Cal.4th at pp. 330-331, original italics, footnote omitted; see People v. Smith, supra, 37 Cal.4th at pp. 746-748.)

In this case, the June 27, 2004 incident involved defendant, a self-professed gang member, and at least one other individual driving in rival gang territory in the early morning hours. When defendant spotted four young Latinos walking in a nearby alley, he: drove up to them slowly; suddenly pulled his car to the wrong side of the street; pulled out a gun; yelled stop[!]; and, began firing indiscriminately in their direction. Mr. Crescencio was struck by a bullet in the spine, rendering him a paraplegic. Additional bullets penetrated two of the nearby apartments, which were occupied at the time. Defendant argues that because there was no known targeted victim in this case, the kill zone theory is inapplicable. He further argues, [T]here was no substantial evidence that [his] actions were anything but random and contrary to targeting any specific victim[.] . . . The evidence failed to support an inference that appellant either intended to kill a particular individual or individuals or the nature of his attack was such that it was reasonable to infer he intended to kill everyone in a zone of danger he had created as a result of his intent to kill some particular person. (Original italics.) We disagree.

Nothing in either the Smith or Bland opinions requires an assailant know the individuals he or she shoots at. Further, there is no requirement an accused specifically target one potential victim over the others. Rather, the concurrent intent to kill may be inferred from the totality of the circumstances, including defendants firing toward the victims at a close, but not point blank, range so that a fatal wound would have been inflicted had the bullet been on target. (People v. Smith, supra, 37 Cal.4th at pp. 741, 742; People v. Chinchilla, supra, 52 Cal.App.4th at p. 690.) Defendants shooting at young Latinos in a rival gangs territory as discussed above constitutes substantial evidence of defendants intent to kill Mr. Crescencio and Mr. Hernandez (counts 7 and 8).

There was also substantial evidence of defendants intent to kill Mr. De Meza, Mr. Monroy, Ms. Demetrio, and Estaban on July 9, 2004. On that day, defendant seated himself in the frame of the rolled down window of a moving car while driving through a rival gang territory. Defendant: rested his arms on the roof of the automobile; inquired where the four young victims were from; yelled out, Fuck [the local gang], this is [the rival gang]; and again fired at the four victims who were standing in front of the building. Defendants shots hit nearby windows, fences, and walls. The fact that defendants shots did not hit anyone does not negate his intent, as a matter of law, to kill any or all of those present. The manner in which defendant fired the bullets indicated an intent to harm anyone in the area. (People v. Smith, supra, 37 Cal.App.4th at pp. 742-744; People v. Bland, supra, 28 Cal.4th at p. 331.) There was substantial evidence to support the four attempted murder convictions under the theory of concurrent intent in counts 2 through 5. (People v. Bland, supra, 28 Cal.4th at p. 331, fn. 6 [[The concurrent intent 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.]; see also People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-1208; People v. Villegas, supra, 92 Cal.App.4th at p. 1224.)

The holding of our colleagues in the Court of Appeal for the Fourth Appellate District, Division One in People v. Anzalone (2006) 141 Cal.App.4th 380, 391-396, is distinguishable. In Anzalone, the defendant fired two shots at four individuals. The trial court did not instruct the jurors with CALJIC No. 8.66.1.^[3] Moreover, in explaining the zone of danger to jurors in closing argument, the prosecutor misstated the law as follows: Okay, we have four counts of attempted murder and we have got four guys in the alley kind of makes sense. But there is [sic] only two gunshots. How do we get the four counts on the two gunshots? Here is the way the law says it is. Something called the zone of danger. Anytime someone is within the zone of danger, whether it be one, two, three or twenty people, somebody indiscriminately shoots towards a crowd of people, everything in that zone of danger qualifies. The Anzelone court found that defense counsels failure to object to the prosecutors erroneous argument amounted to prejudicial ineffectiveness. (People v. Anzalone, supra, 141 Cal.App.4th at p. 395.) In this case, the jury was instructed with CALJIC No. 8.66.1, and, as will be noted, the prosecutor did not argue that defendant need not intend to kill each victim.

B. Instruction with CALJIC No. 8.66.1

As part of his argument that there was insufficient evidence of his intent to kill each of the six victims in counts 2 through 5 and 7 and 8, defendant argues in the heading on page 14 of the opening brief, As a result it was error for the prosecution to (erroneously) argue and the court to give a kill zone instruction on the principle of a concurrent intent to kill. In his reply brief, defendant argues that he did not argue that the trial court erred in instructing the jury with CALJIC No. 8.66.1. Defendant argues the Attorney General mischaracterized the CALJIC No. 8.66.1 contention. However, we read the caption to defendants first argument in his opening brief as specifically alleging such error. We therefore address the issue here.

Defendants argument is based upon the fact that he did not target specific victims in either shooting incident. The instruction left the finding of specific intent to kill to the jurors, Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a zone of risk, is an issue to be decided by you. As noted, there was substantial evidence defendant intended to kill all of those present at each of the two shooting incidents. As a result, the concurrent intent instruction was properly given.

In any event, any error in so instructing the jurors was harmless. The jurors were instructed, [I]f the evidence as to any specific intent or mental state permits two reasonable interpretations, one of which points to the existence of a specific intent or mental state and the other to its absence, you must adopt that interpretation which points to its absence. (CALJIC No. 2.02.) The jury was further instructed pursuant to CALJIC No. 8.66 that in order to prove attempted murder they must find, The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being. The California Supreme Court has consistently stated that on appeal it is presumed that the jury is capable of following the instructions they are given. (People v.Bradford (1997) 15 Cal.4th 1229, 1337; People v.Osband (1996) 13 Cal.4th 622, 714; Peoplev. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) Moreover, the jurors found that each of the six counts of attempted murder was willful, deliberate, and premeditated. It is not reasonably probable that the verdict would have been more favorable absent the trial courts instruction with CALJIC No. 8.66.1. (See People v. Flood (1998) 18 Cal.4th 470, 490; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Catley (Mar. 9, 2007, G036876) ___ Cal.App.4th ___, ___ .)

C. Alleged Prosecutorial Misconduct

1. Factual and procedural background

Defendant argues that the prosecutor improperly argued a legally erroneous concurrent intent theory to the jurors. More specifically, defendant argues: Here . . . the prosecution erroneously told the jury that under the zone of risk instruction, as long as the jury found that [he] intended to kill some unknown and unascertained target within the zone of risk, the jury could find that appellant intended to kill all others in the group. Defendant claims, [T]he prosecution lightened its burden of proof to show beyond a reasonable doubt that [he] specifically intended to kill a primary or targeted victim in such a way that he created a zone of risk as to all the others to assure his targeted victim would be killed. The prosecutor argued: Something you need to consider with regard to attempted murder is not just the fact that there has to be an intent to kill. But there is a jury instruction that you are going to hear called the zone of risk. It relates to the zone of risk. [] And essentially what it says is, if the defendant intended to kill, for example, Estaban Uribe or Luis Monroy or Miguel De Meza, and if in the process of trying to kill them he wanted to kill anyone in their area to get the job done, then its attempted murder of those people as well. [] And this is the classic kind of situation where that instruction really does apply. [] . . . [] But in this situation, when you have a group and they are all practically touching one another, clearly the defendants intention and in order to kill possible gang rivals, and it doesnt matter if they are or are not, it only matters that they are young and Hispanic -- clearly his intention was to take out anyone around them. [] So, so long as the defendant wanted to kill -- lets say Estaban, he had what they called a fade at that time, shorter hair -- the intention was to kill him, and if in doing so the defendant had to take out everybody else, it is also for the good. Under the zone of risk instruction, it is still attempted murder, and it is still something the defendant wanted to do. The prosecutor later clarified the difference between general intent and specific intent, In the case of attempted murder, as I said a few minutes ago, the defendant has to actually intend to kill someone to be guilty.

2. Waiver

Preliminarily, the California Supreme Court has held that a reviewing court will generally not review a claim of prosecutorial misconduct unless an objection and request for admonishment was raised at trial; unless an admonitory comment would not have obviated the prejudicial effect of the improper argument. (People v. Sapp (2003) 31 Cal.4th 240, 279; People v. Navarette (2003) 30 Cal.4th 458, 507; People v.Ochoa (1998) 19 Cal.4th 353, 427.) The Supreme Court has held, The reason for this rule, of course, is that the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instruction the harmful effect upon the minds of the jury. [Citation.] [Citation.] (People v.Cox (1991) 53 Cal.3d 618, 682, quoting People v.Green (1980) 27 Cal.3d 1, 27, disapproved on another point in People v. Dominguez (2006) 39 Cal.4th 1141, 1155, and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) Defendants claim of misconduct as to the prosecutors comments has been waived because defense counsel failed to either object on that ground to the specified portion of the argument or to request a curative admonition.

3. No misconduct occurred

Notwithstanding such a waiver, we hold no misconduct occurred. In reviewing the principles governing findings of prosecutorial misconduct the California Supreme Court has consistently noted: The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] [Citation.] (People v.Hill (1998) 17 Cal.4th 800, 819, quoting People v.Gionis (1995) 9 Cal.4th 1196, 1214, People v.Espinoza (1992) 3 Cal.4th 806, 820, and People v.Samayoa (1997) 15 Cal.4th 795, 841; see also Donnelly v.DeChristoforo (1974) 416 U.S. 637, 642-643; People v.Harris (1989) 47 Cal.3d 1047, 1084, criticized on other grounds in People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10.) The California Supreme Court has held: [A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . . . . . [He] . . .   . . . is not limited to Chesterfieldian politeness [citation], and he may use appropriate epithets . . . . (People v.Wharton [(1991)] 53 Cal.3d [522] 567-568 [].) [Citation.] (People v.Hill, supra, 17 Cal.4th at p. 819, quoting People v.Williams (1997) 16 Cal.4th 153, 221; People v. Brown (2003) 31 Cal.4th 518, 554.) The Supreme Court recently held, [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Morales (2001) 25 Cal.4th 34, 44; People v. Ayala (2000) 23 Cal.4th 225, 283-284.)

Here, the prosecutors comments on the theory of concurrent intent were proper. As set forth above, the prosecutor argued, [C]learly the defendants intention and in order to kill possible gang rivals, and it doesnt matter if they are or are not, it only matters that they are young and Hispanic -- clearly his intention was to take out anyone around them. In order to be found guilty of the attempted murders of others present, defendant need only intend to kill someone in the rival gang territory, not only those known by name or acquaintance to him. As set forth previously, there was substantial evidence that defendant intended to kill all those present on June 27, and July 9, 2004. On June 27, 2004, defendant shot at all those present even as they ran for cover and after Mr. Crescencio was struck down. Likewise, on July 9, 2004, defendant took aim, steadying himself over the roof of the car. Defendant called out his gangs identity and began shooting at all those gathered in front of the apartment building. Defendants shots penetrated windows and walls close to the victims and further endangered those inside. (See In re Ryan N. (2001) 92 Cal.App.4th 1359, 1383-1384; People v. Vang, supra, 87 Cal.App.4th at pp. 563-565.) The prosecutors argument was a correct statement of the law. Furthermore, the California Supreme Court has held that a prosecutors comments in closing argument must be viewed in context with the remainder of the summation. (People v. Stansbury (1993) 4 Cal.4th 1017, 1057, reversed on other grounds in Stansbury v. California (1994) 511 U.S. 318, 326; see also People v. Dennis (1998) 17 Cal.4th 468, 522; People v.Medina (1995) 11 Cal.4th 694, 759-760; People v.Pensinger (1991) 52 Cal.3d 1210, 1250.) As noted, the prosecutor carefully explained the necessity for defendants specific intent to kill in order to be convicted of attempted murder.

Moreover, there was overwhelming evidence of defendants guilt. As a result, even if the prosecutors comments were inappropriate, it was not reasonably probable the comments influenced the jurys guilt determination. (People v. Crew (2003) 31 Cal.4th 822, 839; People v. Barnett (1998) 17 Cal.4th 1044, 1133; People v.Medina, supra, 11 Cal.4th at p. 760; People v. Stansbury, supra, 4 Cal.4th at p. 1057; People v.Pensinger, supra, 52 Cal.3d at p. 1250.) Also, the jurors were instructed pursuant to CALJIC No. 1.00 that they were to obey the statements of the law provided by the trial court. Further, the jurors were instructed pursuant to CALJIC No. 1.02 that the arguments of counsel were not evidence. We presume they followed those instructions. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 803; People v.Bradford, supra, 15 Cal.4th at p. 1337.)

4. Counsels representation was not ineffective

Defendant argues that defense counsel was ineffective for failing to object to the prosecutors argument and request an admonition. Because we find no misconduct occurred, counsel had no reason to object. Counsel need not pursue futile or meritless objections or argument. (People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Ochoa, supra, 19 Cal.4th at p. 432; People v. Lewis (1990) 50 Cal.3d 262, 289.) In any event, defendant has failed to sustain the prejudice burden of ineffective assistance claims. We have no doubt as to the accuracy of the factfinding that has occurred and there is no reasonable probability of a different result. (Lockhart v. Fretwell (1993) 506 U.S. 364, 369-370; People v. Williams (2006) 40 Cal.4th 287, 304.)

D. Sentencing

In the complex sentencing required for the multiple counts in this case, the trial court failed to: address the gang allegations by imposing minimum terms on life sentences and enhancements; stay certain enhancements; and impose a mandatory statutory fine on each count. In addition, the abstract of judgment does not accurately reflect some of the enhancements imposed or required stay of sentence. As set forth below, we correct both the discrepancies in the abstract of judgment and other sentencing omissions.

First, as to counts 2 through 9, the jury found the section 186.22, subdivision (b)(1)(C) gang allegations to be true. As a result, each of these indeterminate life sentences is subject to a 15-year minimum term. ( 186.22, subd. (b)(5); see People v. Lopez (2005) 34 Cal.4th 1002, 1010-1011.) The judgment is modified to include the imposition of the 15-year minimum term as to each of the foregoing counts. Count 9 is to remain stayed pursuant to Penal Code section 654, subdivision (a). The abstract of judgment shall be amended to include these modifications.

Second, as to counts 7 and 9, which involve the shooting and ensuing paralysis of Jose Crescencio, the trial court orally imposed only life sentences for the section 12022.53, subdivision (d) firearm use enhancements. The judgment is modified to reflect the section 12022.53, subdivision (d) firearm use enhancements are 25 years to life as to counts 7 and 9. The abstract of judgment shall be amended to reflect these corrections.

Third, the Attorney General argues that the abstract of judgment should be modified to more accurately reflect the jurors findings and the sentences as to count 11. The jury found the section 12022.53, subdivision (d) firearm enhancement allegation not true, but did find the section 12022.53, subdivision (c) enhancement allegation to be true. The abstract of judgment incorrectly reflects a section 12022.53, subdivision (d) enhancement was imposed as to count 11. The abstract of judgment should be amended to reflect the imposition of a section 12022.53, subdivision (c) enhancement as to count 11.

Fourth, the Attorney General argues the section 12022.53, subdivision (d) enhancements as to counts 9 and 10 and the section 12022.53, subdivision (c) enhancement as to count 11, should have been stayed as the terms for the substantive offenses in those counts were stayed pursuant to section 654, subdivision (a). We agree. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 711 [an enhancement must necessarily be stayed where the sentence on the count to which it is added is required to be stayed [under section 654].]; People v. Guilford (1984) 151 Cal.App.3d 406, 411.) The abstract of judgment shall be amended to reflect the stay of the count 9, 10 and 11 section 12022.53 enhancements.

Fifth, the trial court failed to impose or strike the section 186.22, subdivision (b)(1)(C) gang enhancements as to counts 9, 10 and 11. Section 186.22, subdivision (g) requires that the court either strike or impose the additional 10-year term. The failure to impose a legally mandated sentence is a jurisdictional error. ( 12; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589; People v. Floyd P. (1988) 198 Cal.App.3d 608, 612; People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 537 overruled on another point in People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3; People v. Santana (1986) 182 Cal.App.3d 185, 190-191.) We therefore remand the matter to allow the trial court to either strike or impose the section 186.22, subdivision (b)(1)(C) sentences as to counts 9, 10 and 11. (See People v. Jordan (1986) 42 Cal.3d 308, 318; People v. Alexander (1992) 8 Cal.App.4th 602, 605.) If the trial court imposes the section 186.22, subdivision (b)(1)(C) enhancements as to counts 9, 10 and 11, it shall then stay imposition of those sentences because the substantive offenses in those counts were stayed pursuant to section 654, subdivision (a).

Sixth, the trial court imposed only a single section 1465.8 court security fee. A separate security fee must be imposed for each count, subject to the section 654, subdivision (a) stays, on counts 9, 10 and 11 sentences. (People v. Schoeb (2005) 132 Cal.App.4th 861, 866.) The trial court is to actively and personally insure the clerk accurately prepares a correct amended abstract of judgment. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

IV. DISPOSITION

The judgment is affirmed except as follows: 15-year minimum parole eligibility dates shall be imposed as counts 2 through 9; the Penal Code section 12022.53, subdivision (d) enhancements as to counts 7 and 9 shall be changed to terms of 25-years-to-life; and $20 court security fees shall be imposed as to each count. The trial court is to exercise its discretion to strike or impose gang enhancements pursuant to the Penal Code section 186.22, subdivision (b)(1)(C) sentences as to counts 9, 10 and 11. All of these modifications are subject to appropriate Penal Code section 654, subdivision (a) stays. Upon the completion of the limited resentencing, the trial court is to personally insure a fully correct abstract of judgment as discussed in the body of this opinion is prepared and

forwarded to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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

^[2] As noted, Miguel Uribe was a passenger in the car driven by defendant after the June 27, 2004 shootings. For purposes of clarity and not out of any disrespect, Estaban Uribe will be referred to by his first name only.

^[3] The trial court instructed the jurors in this case with CALJIC No. 8.66.1 as follows: A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victims vicinity. [] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a zone of risk, is an issue to be decided by you.