P. v. Reed

Filed 8/30/07 P. v. Reed CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Johnny Leroy Reed (Reed) and Damion Byrd (Byrd) were convicted of first degree murder of Harold Butler, Jr., premeditated attempted murder of Akwood Rollins and Jaswant Deol, and assault with a semiautomatic firearm on Luis Leon and Aracelli Leon. Byrd was also convicted of committing a residential burglary. With respect to the murder of Harold Butler, Jr., the jury found true an allegation that Reed personally discharged a firearm proximately causing death (Pen. Code, 12022.53, subd. (d),[1] and that Byrd personally discharged a firearm ( 12022.53, subd. (c)). With respect to the two attempted murder counts, the jury found true allegations that Reed and Byrd personally discharged a firearm in the commission of the offense ( 12022.53, subd. (c)). The jury also found true, with respect to each count of murder and attempted murder, that each defendant personally used a firearm within the meaning of section 12022.5, subdivision (a)(1).

The court sentenced Reed to 98 years to life in state prison, and Byrd to 74 years four months in prison. They each filed timely notices of appeal.

Facts

On May 16, 2004, Reed, Byrd, and Jerome White came to the door of a liquor store and opened fire on the occupants, killing Harold Butler, Jr., and wounding Akwood Rollins and Jaswant Deol. They also injured Luis and Aracelli Leon, who were two bystanders at a gas station across the street. Except for Luis and Aracelli Leon, the victims were associated with a group of residents of the neighborhood around Sobrante Park and 105th Street in Oakland. Reed and Byrd were associated with a rival group referred to as E-Street centered around Edes and 98th Streets. In the year preceding this incident there had been five to ten shootings in conflicts between these two groups.

The Burglary

One of the weapons found discarded in a garbage can near the liquor store where the May 16, 2004 shooting occurred was a Ruger Mini 14 with a unique synthetic stock. Larry Miller testified that, on March 22, 2004, he returned home to find his Hayward residence had been ransacked. His gun locker had been pried open, and his entire collection of handguns and rifles had been stolen. Miller identified the Ruger Mini 14 as one of his stolen guns. Blood stains on Millers gun locker matched Byrds DNA. Latent fingerprints and palm prints also matched Byrds.

Conflict Preceding the Shooting

Charles King testified that a week before May 16, 2004, he and a group of Sobrante Park friends were playing dice in an alley on 105th Street. Reed and Jerome White drove up and joined the game. After playing for a while, White became angry because he believed he had been cheated. One of the Sobrante Park residents grabbed White by the shirt and told him he did not belong there, and threatened him. White responded, All right, well see, and got in the car and drove away with Reed.

Approximately a week later, Reed, with Byrd in the passenger seat, drove up as King left his girlfriends house. Reed jumped out of the car and demanded to know whether King had disrespected him. King denied it. King fled on foot when he saw Reed reach into the back seat of his car and start to pull out a rifle. He hid in a nearby back yard until he was certain that Reed had left the area.

Three days before the shooting, King, Harold Butler, Jr., and James Brandon retaliated when they saw Reeds car parked in the hills. They smashed the windows and scratched the paint.

The Shooting at the Liquor Store

On May 16, 2004, Brandon warned King to watch out for Reed and Byrd, who were driving in a burgundy-colored sedan with a third man. At about 11:30 p.m., James Bradford, Harold Butler, Jr., Brandon, Akwood Rollins, Deol and King drove in a van to a liquor store on 98th and Edes Streets. They parked the van across the street from the liquor store by the gas station. As King exited the van he saw a burgundy sedan drive slowly out of the gas station. The car paused and he and the occupants looked at each other before the car drove away on 98th Street. King recognized the driver as Jerome White, and saw Reed sitting in the front passenger seat, and Byrd in the back. Although he alerted his friends, no one was concerned.

A video camera showed the sedan King described driving down 98th Street. Another video camera at the Brookfield Food Center further down 98th captured the sedan turning into the parking lot behind the store and backing into a parking space. It showed three armed men getting out of the car, and jumping over a fence.

Gloria Piedra, the owner of Coliseum Pizza on 98th, was sitting outside the restaurant in her pickup truck, waiting with her three children for her husband to close for the night. She saw three armed men walk past her restaurant, headed toward the liquor store. One of the men was carrying a shotgun, another was carrying a rifle, and the third was carrying a handgun. They were wearing dark sweatshirts with hoods pulled up over their heads. Two of the men were tall, and the third was shorter.

Meanwhile, King and his friends had gone into the liquor store. Rollins bought some chips and was waiting outside. Rollins glanced up from his bag of chips and saw a man with dreadlocks carrying a long gun start firing into the store. Rollins saw another man holding a rifle. Rollins took off running across the street toward the gas station. Rollins was shot in the back of his leg as he ran across Edes Street. Aracelli Leon, who was a customer at the gas station, was hurt by splintered glass, and her father, Luis Leon, was hit by a bullet in the chin.

Inside the store, King was putting his money on the counter when he heard a shot. He turned and saw two men at the door. He recognized Reed as the man holding the rifle. Reed was wearing something that covered the bottom of his face, but King identified him by his eyes, and his dreadlocks sticking out of his hat.[2] King dove for cover as more shots were fired into the store. He saw Butler lying in a pool of blood, and Deol on the ground with a gunshot wound to his arm. King pulled his pistol from his pocket, and went to the front of the store to see if the assailants had left. He hid his gun just as the police arrived because he knew possession of a firearm violated his probation.

King was uninjured. He was taken to the police station, where he gave a taped statement describing the burgundy sedan he had seen just before the shooting. At a photo lineup he identified Reed, Byrd and Jerome White as the occupants of the sedan. He identified Reed as the man who repeatedly fired his rifle through the door of the liquor store. He told the investigating officer that he could identify Reed by his eyes, and the hair exposed because the hoodie was off his hair.

Deol testified that he was walking toward the front door when he saw a masked African American man pointing a large rifle into the store. The shooter wore a mask over the lower part of his face. Deol was shot in the arm as he turned away and ran to the back of the store. When he saw the police arrive, Deol hid his loaded pistol on a store shelf.

As the three gunman left the scene, Piedra was still sitting in her car. She testified that she and her children had been cowering in their car when they heard the gunfire. When she looked up she saw the same three armed men she had seen earlier walking fast around the corner from where the liquor store was located. They stopped, and either some, or all three, turned back and fired shots in the direction of the gas station.[3] The three men scattered when a police van came in view. One of the men tried to get into Piedras restaurant to hide, but her husband held the door shut. A surveillance camera showed that man then ran toward Brookfield Food Center, got into the parked burgundy sedan and drove away. The liquor store surveillance camera also showed the two other armed men ran back past the liquor store westbound on Edes Street.

Officer Jacob Floyd and his partner were in their patrol wagon on 98th Street. Floyd saw three men, two of them armed with long rifles, come around the corner of Edes and walk south. When the men saw the officers, the two men with long guns turned and ran back around the corner to Edes. Officer Floyd and his partner chased these two men around a corner but lost sight of them.

When Officer Floyd arrived at the liquor store, Bradford was walking out of the store and Rollins was running through the gas station. Butler was declared dead at the scene from a bullet wound to the chest. Deol and Rollins were taken to the hospital and treated for their wounds. Aracelli Leon was treated and released that same day for injuries to her arm. Mr. Leon was hospitalized for weeks. A bullet fragment caused him to suffer a stroke. He stopped speaking, and became forgetful and confused. He also suffered permanent scarring to his face.

A short while after the shooting, Reed and Byrd arrived, out of breath, at the back entrance to La Quinta Inn, and summoned their friend Pecot to let them in. In a taped statement, Pecot told the police that on the night of Butlers death he rented a room at the La Quinta Inn, and Byrd and Reed shared the cost. Byrd and Reed left between 10:00 p.m. and 11:00 p.m. to get cigarettes. While they were gone Pecot heard sirens. Five to ten minutes later Reed called and asked Pecot to let them in. When Pecot went downstairs, Byrd and Reed were huffing and puffing as if they had been running. Reed told Pecot that things got ugly, which Pecot interpreted to mean they had to run from the police. Pecot heard that Butler had been killed the next morning. He also told the police that Byrd and Reed had purchased several guns from a drug addict a week or two before the shooting at the liquor store. He knew Butler had been doing hell a shit, including shooting one man, wrecking Reeds car, and, the night before he died, shooting up Edes Street. Pecot told the police that after that night, he, Reed, and Byrd bought a Honda and went to Los Angeles.

At trial, Pecot testified under a grant of immunity that Reed and Byrd were with him in the motel room all night except during a brief period when they went to the motel swimming pool with their girlfriends. Pecot also testified that in August 2004, Butlers uncle, James Brandon, tried to shoot Pecot while Pecot rode in Larry Hogues car. Brandon killed Hogue instead. Pecot testified that Brandon wanted to kill Pecot because he was friends with Byrd and Reed and other E-Street residents. Just before testifying at this trial, Pecot had testified against Brandon in the Hogue murder trial. Pecot was also cooperating with the police in their investigation of another murder Jerome White was suspected of committing. Pecot was being provided with witness protection.

At the scene of the shooting, the police found eleven .223 caliber expended casings, nine .40 caliber casings, and three .45 caliber casings. The criminalist was unable to reconstruct where each casing had fallen because things were moved around due to all the foot traffic through and outside the store in the aftermath of the shooting. Two rifles and a pair of latex gloves were found in a garbage can near the liquor store. The first rifle was the .223 caliber Ruger with a broken empty magazine that was stolen in the Miller burglary. The second was an antique .45 caliber Thompson submachine gun, with 26 live rounds and a bullet jammed in the ejection port. The .223 and .45 casings found at the scene came from these guns. The nine .40 caliber casings came from either a Smith & Wesson or Glock pistol, which was not recovered. No identifiable fingerprints were found on the weapons or gloves.

A video from the security surveillance camera outside the liquor store, and three cameras inside the store, recorded the events. The video quality is too poor to identify the faces of the gunmen. The outside camera shows that the first gunman had a rifle and approached the door of the store and opened fire. While the first is still firing, a second gunman carrying a handgun begins to fire into the store, as the first gunman turns away and aims fire in the direction that Rollins begins to run. The second gunman also turns and fires in that direction. A third gunman appears on camera, disappears into the store and then exits looking at his gun and manipulating it as if clearing a jam. A firearms expert viewed the videotape and determined that the first shooter used the .223 caliber Ruger, and fired the shot that killed Butler and wounded Deol. The second shooter used the pistol, and the third shooter used the Thompson submachine gun that jammed. The prosecutors theory was that Reed was the first shooter, Jerome White was the second, and that Byrd was the third shooter.

Reed and Byrds Arrest and Reeds Escape Attempt

On July 8, 2004, Officer Midyett attempted to stop a car driven by a probationer with a suspended license, but the car sped away. During the chase two men jumped out. Midyett recognized that one of them was Reed, who, he knew, was wanted for murder, along with Byrd. The police surrounded the area and eventually found Reed and Byrd hiding under a deck, and arrested them.

While Reed was being held in a maximum security unit at juvenile hall, he stated, I cant take this anymore, and grabbed a counselors keys. Reed unlocked a door and gate, and tried to escape. As he ran, Reed picked up a set of leg shackles and may have swung them in the air. He resisted being taken back into custody and had to be subdued with pepper spray and handcuffed. As he was being placed in a secure room, Reed tried to escape again by pushing through the staff at the door, and breaking the door. A handcuff key was found hidden on Reeds body.

Defense Case

Reed and Byrd both presented alibi witnesses. Brittany Bergman, Pecots girlfriend, testified that Reed and Byrd were with her and Pecot at the La Quinta Inn. They left late that night with their girlfriends to go swimming. When Reed and Byrd returned to the room, Brittany and Pecot went swimming for about an hour. They returned sometime between midnight and 2:00 a.m. Brittany and two other girls drove with Reed and Byrd to Byrds parents house in Stockton the next morning and then went to Los Angeles. Reeds girlfriend, Dominique Andrews, testified that she and Reed did go swimming for about one hour that night. Byrds girlfriend, Latiffayie Freedman, gave similar testimony.

Greg Stutchman, an expert in forensic photography, calculated the height of the men on the videotape. He calculated that the first man with the rifle was about five feet ten inches, with a two-inch margin of error, and, with less certainty, that the second man was five feet nine inches. He agreed that, if Reed stood five feet ten and a half inches tall, he could not be eliminated as the first shooter. It was stipulated that Reed, at the time of his arrest, was five feet eleven inches tall, wearing half-inch heels, and weighed 236 pounds. Byrd was five feet five inches tall and weighed 125 pounds.

Discussion

I.

Reeds Appeal

1. Sufficiency of the Evidence

Reed first contends there was no substantial evidence to support his convictions and the enhancement allegations based upon the theory that he was the first gunman, who killed Butler and injured Deol. He does not challenge the sufficiency of the evidence with respect to any of the elements of first degree murder, premeditated attempted murder, assault, or of the enhancement allegations. Instead, he focuses only on the sufficiency of the evidence identifying him as the first gunman. Reed argues that there was no physical evidence tying him to the crime, and that Kings testimony identifying him as the first shooter was so unreliable that a conviction based upon it would violate federal due process standards.

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

In this case, the prosecution did not rely solely upon circumstantial evidence because King, an eyewitness, identified Reed as the first gunman who opened fire on the occupants of the store, killing Butler and wounding Deol. Reed argues that this identification is too unreliable to constitute substantial evidence because: (1) The videotape shows that King had only a few seconds to look at the shooter, whose face was covered with a mask; (2) Kings testimony that minutes before the shooting he had seen Reed, Byrd, and White in a burgundy sedan leaving the gas station across the street from the liquor store was not corroborated by any other evidence; (3) the conflict preceding the shooting gave King a motive falsely to identify Reed; (4) King admitted he gave false testimony when, for the first time at trial, he also identified Byrd; and (5) King testified that, shortly before trial, the prosecutor reviewed the video and photographs with him and therefore his memory could have been falsely reinforced.

None of Reeds arguments on appeal demonstrate that Kings testimony was so inherently untrustworthy that a conviction based upon it would violate due process of law. (People v. Maxwell (1979) 94 Cal.App.3d 562, 579.) His arguments challenging the reliability of Kings testimony are arguments that could have been properly addressed to the jury as trier of fact,[4] but are not grounds for this court to conclude that his testimony was so inherently improbable or unreliable that it could not, if credited by the jury, constitute substantial evidence supporting Reeds convictions. The prosecutor advanced counterarguments on each of the factors relevant to Kings credibility, and the reliability of his identification. The jurys verdict reflects its determination that, on balance, Kings testimony identifying Reed as the first shooter was credible and reliable, despite his admission that he falsely testified he recognized the second shooter was Byrd. [A]bsent exceptional circumstances demonstrating the witnesss testimony is inherently improbable, the fact that a witnesss testimony is false in part does not preclude a trier of fact from accepting as true the rest of it. If it can be accepted as true, testimony which establishes all the elements of a crime must necessarily constitute substantial evidence of solid value that such crime was committed. (Id. at p. 577.) Therefore, Kings testimony identifying Reed as the first gunman constitutes substantial evidence.

In a similar vein, Reed contends that Pecots statements and testimony did not corroborate Kings identification of Reed as one of the shooters because: (1) Pecots testimony at trial substantially conflicted with the taped statement Pecot had given to the police, in which he described the appearance of Byrd and Reed, breathless, at the back entrance of La Quinta Inn shortly after the shooting; (2) Pecot was under a witness protection program; (3) he provided information to the police only after he was picked up running from the scene of the murder of his passenger Larry Hogue, and was arrested in an investigation for his involvement in the murder of Lamar Bishop for which Jerome White was being prosecuted; and (4) Pecots taped statement contained factual discrepancies that were not consistent with Kings testimony, including Pecots statement that the rental car that Reed and Byrd were driving was gray, not burgundy. For the purpose of our review, such corroboration is unnecessary because the testimony of a single witness, if credited by the jury, may constitute substantial evidence. (People v. Maxwell, supra, 94 Cal.App.3d at p. 577.) In any event, for the same reasons we have explained with respect to Reeds challenges to the sufficiency of Kings testimony, these arguments go to the weight and credibility of this evidence, but fail to demonstrate it is so inherently improbable or unreliable that it cannot be deemed substantial evidence supporting Reeds convictions.

Moreover, in addition to Kings eyewitness identification of Reed as the first shooter, there was significant circumstantial evidence to support his identification of Reed, including: (1) the conflict preceding the shooting gave Reed a motive; (2) Pecots statements describing the arrival of Reed and Byrd in a breathless state at rear entrance of La Quinta Inn minutes after the shooting, and Reeds statement that things got ugly, meaning they had to run from the police, was circumstantial evidence that they were the two armed men seen by Piedra and Officer Floyd, running on foot away from the scene; (3) Pecots statement that Reed and Byrd bought four weapons before the shooting, including an automatic shotgun with a top-mounted magazine similar to the Thompson machine gun seen in the video; (4) the discovery of a Ruger rifle and Thompson submachine gun discarded in the garbage can near the liquor store, and Byrds fingerprint and blood found in Millers residence from which the Ruger rifle that killed Butler was stolen; and (5) evidence that Reed and his accomplices fled to Stockton and Los Angeles after the shooting, that Reed and Byrd ran from the police the day they were arrested, and that Reed attempted to escape from juvenile hall. Reeds arguments do no more than demonstrate the existence of other possible innocent interpretations of this circumstantial evidence. For purposes of our review of the sufficiency of the evidence, however, it suffices that   the circumstances reasonably justify the trier of facts findings.   (People v. Rodriguez, supra, 20 Cal.4th at p. 11.)

No doubt there were significant credibility issues with respect to many witnesses, including King and Pecot. Many of the witnesses had prior convictions or self-interested reasons to give false testimony, such as avoidance of penal consequences for their own conduct. King and Pecot also either admittedly gave false testimony, or denied or recanted prior statements they had given. Defense counsel ably argued these and other issues to the jury, and the verdicts reflect that it resolved the conflicts, discrepancies, and credibility issues in the prosecutions favor. It is not the role of this court to reweigh the evidence, redetermine issues of credibility, or to reject reasonable inferences or resolution of conflict in the evidence reflected in the jurys verdict. We therefore conclude that Reeds convictions are supported by substantial evidence.

2. Admission of Evidence of Escape and Instruction on Flight

Reed next contends that the court abused its discretion by denying his pretrial motion in limine seeking to exclude evidence of his attempted escape from juvenile hall pursuant to Evidence Code section 352. He contends evidence of the attempted escape was cumulative of other evidence of flight, including evidence that Reed and Byrd fled to Stockton the day after the shooting, and also ran and hid in a nearby yard when the police later pulled over the car in which they were riding. He further argues that, at a minimum, the court should have excluded violent factual details such as that he was swinging a set of shackles as he ran down the hallway, that he resisted being subdued and had to be sprayed with pepper spray, and that later he tried to kick his way out.

We find no abuse of discretion. The evidence of an attempted escape is relevant to establish consciousness of guilt. (People v. Kipp (2001) 26 Cal.4th 1100, 1126.) The court reasonably concluded that the probative value of this evidence was high because identity was the primary disputed issue in the case, and the credibility of King, the only eyewitness to identify Reed, was also hotly disputed. (See People v. Turner (1990) 50 Cal.3d 668, 694, fn. 10 [evidence of flight relevant where identity of perpetrator is in issue].) Reed argues for the first time on appeal that the evidence of his escape attempt did not have high probative value because it was cumulative of other evidence that he left town immediately after the shooting, and fled and hid from the police when they pulled over a car in which he was a passenger. He did not make this argument to the trial court, and it therefore cannot be grounds for finding the court abused its discretion in ruling on the motion in limine. In any event, the evidence of the escape attempt was not cumulative because, at the time of the escape, Reed knew he was being held in connection with the murder of Butler, and therefore the inference of consciousness of guilt is less equivocal than it is with respect to the earlier flight evidence.

The court also reasonably concluded that the risk of undue prejudice was not great because the violence related to the escape attempt was not particularly severe or inflammatory. No doubt the absence of the use of violence in an escape attempt is a factor that decreases the risk that admission of evidence of the escape will cause undue prejudice. (See People v. Kipp, supra, 26 Cal.4th at p. 1126 [the risk of undue prejudice is slight when the escape attempt involves no overt violence].) Nonetheless, the degree of violence involved was minimal compared to that in People v. Remiro (1979) 89 Cal.App.3d 809, and even there the court held it was not an abuse of discretion to admit evidence of an escape attempt that involved gouging the eye of one guard, and stabbing another in the neck with a pencil. (Id. at p. 845.) It was within the courts discretion to accept as reasonable the prosecutors argument that the factual details involving the use of violence were important because they showed Reeds desperation and were not, in any event, particularly inflammatory.

Finally, Reed contends that the court erred by giving an unmodified version of CALJIC No. 2.52,[5] the then standard instruction on flight and the inference of consciousness of guilt. He asserts that, because Reed presented explanations for his escape attempt other than consciousness of guilt, including the fact that he was young and did not like being locked up under Spartan conditions, the court should, sua sponte, have modified this instruction by substituting the following language for the second sentence: Whether or not evidence of flight shows a consciousness of guilt, and the significance to be attached to such a circumstance, are matters for your determination. This language is taken from an instruction approved in People v. Hill (1967) 67 Cal.2d 105, 120, fn. 9.

The identical contention was squarely rejected in People v. Hedrington (1985) 171 Cal.App.3d 517. The court acknowledged that modification of the instruction to incorporate this language has been suggested as the better view for instructing where a defendant offers evidence of reasons for flight other than consciousness of guilt. (Id. at p. 522.) Nevertheless, the court questioned the legal basis for the suggestion that the modified version was the better view, and concluded that, in any event, it was not error to give the unmodified version. It reasoned: The unmodified CALJIC instruction provides the defendant almost the same protections as would the modification. The unmodified instruction simply leaves the jury in a position to disregard the evidence of flight altogether (by giving it no weight), but does so impliedly. The suggested instruction provides this option with more specificity. (Id. at p. 522.) In comparing the language of the modified instruction Reed suggests and the standard instruction the court gave, we do not find a substantial difference that could have resulted in prejudicial error.

Reed argues that the inclusion of the phrase in the new CALCRIM No. 372, it is up to you to decide the meaning and importance of that conduct, somehow demonstrates that giving the unmodified version of CALJIC No. 2.52 was error. Yet, read as a whole, CALIC 2.52 conveys exactly the same concepts regarding the jurys ability to decide whether flight is proven, whether to draw an inference of consciousness of guilt, and the weight it should give that inference. CALJIC No. 2.52 does not posit the existence of flight; both the existence and significance of flight [are] left to the jury. (People v. Crandell (1988) 46 Cal.3d 833, 870, italics added, abrogated on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) We therefore find no error with respect to the instruction that was given, or the failure of the court to modify it sua sponte.

II.

Byrds Appeal

Byrd does not challenge the sufficiency of the evidence to support his convictions for the murder of Butler, or the attempted murder of Deol or Akwood Collins, or the assault on Aracelli Leon or her father. Nor does he challenge the sufficiency of the evidence to support the finding that, in the commission of the murder of Harold Butler, Jr., and the attempted murder of Jaswant Deol, he personally discharged a firearm, within the meaning of section 12022.53, subdivision (c). His sole contention on appeal is that the evidence was insufficient to support the finding pursuant to subdivision (c) of section 12022.53 that he also personally discharged a firearm in the commission of the attempted murder of Akwood Collins.

Byrd does not dispute that the evidence supported his conviction of the attempted murder of Rollins as an aider an abettor, even if he did not personally fire a weapon at Rollins. Nonetheless, he argues that in the absence of evidence that he personally shot at Rollins, or that he discharged his weapon while his accomplices were attempting to shoot Rollins, he could not be found to have personally and intentionally discharged his weapon in the commission of the attempted murder of Rollins. He asserts there was no such evidence at trial, and that the videotape taken by the surveillance camera conclusively establishes that the only shots he fired were three shots into the store. He further asserts that the surveillance camera videotape shows that he did not fire these shots until after his accomplices Reed and White had stopped shooting at Rollins. He reasons that he did not discharge his weapon in the commission of the attempted murder of Rollins because that offense was complete by the time he fired his weapon.[6]

The contention fails for several reasons:

First, even if we accept arguendo the partial premise that this enhancement does not apply unless Byrd personally discharged his weapon at Rollins, Byrds conclusion that there was no such evidence depends upon his assertion that the videotape evidence at trial supports only one reasonable inference, i.e., that all three shots he fired were fired into the store,[7] and that they were not fired until his accomplices had stopped shooting at Rollins. Yet, the videotape does not actually show the third gunman firing his weapon. He is only seen entering the store and exiting it while apparently trying to unjam his weapon. The first and second gunmen approach the door and fire into the store, and then turn and fire in Rollins direction as he runs away. It is inferable, however, that when the first and second gunmen approach the door, the third gunman, although out of camera range, is present, based upon Piedras testimony that she saw three armed men walking together to the liquor store. It is also a reasonable inference that one or more of the three shots fired from the gun carried by the third gunman were fired at Rollins before the third gunman moved into the cameras view because, unlike the first and second gunmen, the third gunman was not yet preoccupied with shooting at the victims in the store when Rollins began to run away.

Second, the statutory terms of the enhancement do not, in any event, require there be evidence that Byrd personally discharged his firearm at Rollins. The enhancement applies by its term to any person who is convicted of a felony specified in section 12022.53, subdivision (a) and who in the commission of that felony intentionally and personally discharged a firearm. Section 12022.53, subdivision (c) does require evidence that the defendant personally and intentionally discharged a firearm. Therefore,it would not suffice to show only that Reed, and Byrds other accomplice, discharged their weapons in the commission of the attempted murder of Rollins. But personally and intentionally modify only the phrase discharged a firearm. These terms do not require proof the defendant must also have directly committed the offense, as opposed to being vicariously liable as an aider and abettor. The prosecution therefore has to prove only that the Byrd personally discharged a firearm in the commission of the offense, not that he directly committed the offense by discharging his weapon at Rollins, the attempted murder victim. Cases interpreting the same phrase in section 12022.5, which applies to personal use in the commission of a felony, have held that the enhancement  applies to one who personally uses a firearm but is only vicariously liable for the underlying crime. . . .  [] . . . As we read the statute, one who commits an act which renders him criminally liable, whether directly or vicariously, is subject to the section 12022.5 enhancement if he personally uses a firearm during that act.  (People v. Berry (1993) 17 Cal.App.4th 332, 338; see also People v. Granado (1996) 49 Cal.App.4th 317, 330.) Moreover, in Granado the court specifically stated, a gun may be used  in the commission of a given crime even if the use is directed toward someone other than the victim of that crime. (Id. at pp. 329-330.) [A] defendant uses a gun in the commission of a crime when he or she employs the gun to neutralize the victims companions, bystanders, or other persons who might otherwise interfere with the successful completion of the crime. (Id. at p. 330.) By parity of reasoning, a gun may also be personally and intentionally discharged in the commission of an offense even if not discharged at the victim, and even if the defendant is vicariously liable for the underlying offense as an aider and abetter. Therefore, it is immaterial whether Byrd discharged his weapon only at Rollinss companions who were in the store, or at Rollins. All that is required is that there be substantial evidence that he personally and intentionally discharged his weapon in the commission of the attempted murder of Rollins.

Third, Byrds assertion that he could not be found to have personally discharged his weapon in the commission of this attempted murder, because his accomplices had stopped shooting at Rollins before he ever fired his weapon, is not supported by the record. [8] The court has reviewed the videotape. It depicts at least one of Byrds accomplices still standing outside and shooting in the direction Rollins ran, as Byrd emerges from the store trying to unjam his weapon. Even after all three gunmen disappear from view, a shadow of a rifle can be seen pointed in the direction Rollins ran as an expended casing falls. Moreover, Piedra testified that she saw two or more of the men turn back and fire towards the gas station as all three came back around the corner fleeing the scene. Her testimony, together with the videotape and reasonable inferences therefrom, constitutes substantial evidence that either Byrd, or his two accomplices, or all three, started to fire on Rollins just after he ran in response to the appearance of the first gunman at the door of the store, and were continuing the attempt to kill Rollins when Byrd appeared at the door, and even after he exited trying to unjam his weapon, and as the three headed back around the corner, before they spotted Officer Floyd and scattered.

We conclude that there was substantial evidence that Byrd personally discharged his weapon while he or his accomplices were shooting at Rollins, and therefore that Byrd personally and intentionally discharged a weapon in the commission of the attempted murder of Rollins.

Conclusion

The judgment is affirmed,

_________________________

STEIN, Acting P. J.

We concur:

_________________________

SWAGER, J.

_________________________

MARGULIES, J.

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[1] All statutory references are to the Penal Code unless otherwise stated.

[2] King also testified for the first time at trial that Byrd was the second man behind Reed. He later acknowledged that his identification of Byrd was a lie, and that he gave false testimony because he was afraid that Byrd would be released and come after him or his family.

[3] Piedra testified that she saw three men standing on the corner firing in the direction of the gas station, but also responded affirmatively when asked if she saw some of them firing towards the gas station.

[4] The defense argued that Kings false testimony identifying Byrd went to the central issue in the case, i.e., the identity of the shooters: that King had only seconds to view the shooter and his face was covered by a mask; the rivalry between E-Street and Sobrante Park gave King a motive to falsely accuse Reed; and that Reed was actually taller and heavier than any of the men in the video.

[5] The instruction given stated, The attempted flight or attempted escape from custody of a person after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.

[6] The People misconstrue defendants argument to be that he could not have personally inflicted great bodily injury on Rollins because his gun jammed after Byrd fired all his shots into the liquor store. The People then assert that the argument is disposed of by People v. Bland (2002) 28 Cal.4th 313, in which our Supreme Court held that the use of the phrase proximately caused great bodily injury in subdivision (d) of section 12022.53 does not require evidence that the defendant personally inflicted that injury. (Id. at pp. 334-336.) According to the People, section 12022.53, subdivision (c) contains the same proximate cause language as 12022.53, subdivision (d). Bland is inapposite not only because Byrd is not arguing there must be substantial evidence that he personally inflicted injury on Rollins, but also because subdivision (c) does not contain the proximate cause language in subdivision (d), nor does it even require evidence of great bodily injury. It provides . . . any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years. ( 12022.53, subd. (c).)

[7] Byrd does not dispute that he was the third gunman carrying the .45 caliber Thompson submachine gun later found discarded near the scene. Three of the 23 expended shell casings found inside and outside the store were .45 caliber casings. These casings came from the antique .45 caliber Thompson submachine gun. The submachine gun had 26 live rounds left in it, and one bullet jammed in the ejection port. A criminalist testified that it was impossible to reconstruct from where and in which direction bullets had been fired because foot traffic had disturbed the scene.

[8] For the purpose of our analysis we shall accept Byrds implicit assumption that the offense of attempted murder is complete, for purposes of this enhancement, when all efforts to kill the victim have ceased.

We note this argument also rests on what we have already explained is the faulty premise that the only reasonable inference from the videotaped evidence was that the third gunman did not fire any shots until he is first caught on camera at the door of the store.