P. v. Tittle

Filed 5/5/06 P. v. Tittle CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from judgments of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed in part and reversed in part.

After an altercation between two criminal street gangs on Father's Day 2003 at Mission Bay Park resulted in the shooting death of one young man and gunshot injuries to two others, charges of murder and attempted murder were filed against Darrell James Tittle, Na'il Downey, and nine other men. Before trial, eight of the men pled guilty to various lesser crimes. A jury subsequently convicted Downey of second degree murder (Pen. Code,^[1] § 187, subd. (a); count 1) and two counts of attempted murder (§§ 187, subd. (a), 664; counts 2 & 3). Tittle was found guilty of voluntary manslaughter (§ 192; a lesser included offense of count 1) and two counts of attempted voluntary manslaughter (§§ 192/664; lesser included offenses of counts 2 & 3) The jury also found both Downey and Tittle had committed all crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and Downey was a principal in the offenses who had personally used a handgun to proximately cause great bodily injury and death (§ 12022.53, subds. (c), (d) & (e)(1)) as well as personally discharging a firearm in their commission. The jury was unable to reach a verdict as to the other defendant, Hargis Jerome Silvels.^[2]

In a bifurcated proceeding, the trial court found true allegations Tittle had served a prior prison term (§ 667.5, subd. (b)) and had suffered a prior serious felony conviction (§ 667, subd.(a)) which also constituted a Three Strikes prior (§§ 667, subds. (b)-(i), 1170.12). The court sentenced Tittle to a total determinate term of 28 years in prison^[3] and Downey to an indeterminate term of 65 years to life plus a determinate term of 16 years in prison.

Both defendants have appealed. Downey contends there was insufficient evidence to support findings of specific intent to kill for his convictions of attempted murder, the trial court failed to sua sponte instruct the jury to determine whether one witness was an accomplice and failed to properly instruct that attempted murder requires the defendant to intend to kill each alleged victim, and trial counsel was ineffective for failing to object to the prosecutor's legally incorrect definition of "concurrent intent" for his attempted murder convictions.

Tittle asserts the evidence was insufficient to support his guilt of voluntary or attempted voluntary manslaughter under any theory, the trial court erred in admitting evidence he was the pimp of a testifying witness, and the court prejudicially erred in instructing on aiding and abetting certain "target offenses" of which the shootings could be viewed as the natural and probable consequences thereof, in instructing on the offense of attempted voluntary manslaughter and in failing to instruct on the lesser offenses of involuntary and attempted involuntary manslaughter based upon the jury's request. Tittle also joins in Downey's arguments to the extent they are applicable and beneficial to him. (Cal. Rules of Court, rule 13.)

We affirm Downey's convictions and Tittle's conviction for voluntary manslaughter. We reverse Tittle's convictions for attempted voluntary manslaughter based on prejudicial instructional error.

FACTUAL BACKGROUND

Because the sufficiency of the evidence is challenged by both defendants, we set out the facts in the light most favorable to the judgment,^[4] which shows both Downey and Tittle, stepbrothers by marriage,^[5] were members or associates of the Lincoln Park Bloods (Lincoln Park) criminal street gang on June 15, 2003, when the events pertinent to this case began unfolding. On that day, each met up with other Lincoln Park gang members and associates to travel to Mission Bay Park to attend the annual Puerto Rican Festival. When the group arrived at the beach in their traditional colors of red and green, they saw a large group of people associated with their rival criminal street gang, the Skyline Pirus or Crips (Skyline). The men from the Lincoln Park group, which included Tittle and Downey, walked quickly toward the Skyline group. As they did so, several members donned gloves, and Downey and others put green bandanas over their faces.

When the groups met face to face, they exchanged hostile, degrading and derogatory words, with Tittle telling the Skyline group, "we ain't trippin', if you ain't trippin'." When someone in the Skyline group said there were "no truces" and asked who Tittle was, Tittle declared, "I'm Knockout-D from Lincoln Park murda gang." When the Lincoln Park group began chanting "murda gang," someone, probably Tittle, tossed a soda can at Skyline member Michael Canty, who immediately punched Tittle in the face, causing other Lincoln Park and Skyline members to exchange blows. Within seconds of this outbreak, Downey pulled out a .38 caliber revolver from his waistband and fired four to six shots at the Skyline group. Members of both groups fled after the shots were fired and police immediately arrived on the scene.

While detaining people for questioning, the police saw several Black males driving in an Oldsmobile, which they later found abandoned in the beach parking lot. A search of the car revealed a Dupont jacket with a digital camera in a pocket on the back passenger seat and the firearm used in the shooting under that seat.

As a result of the shooting, Skyline member Travis Thomas was hit in the upper chest by one bullet and died at a hospital within the hour. A second bullet passed through Canty's calf causing him great bodily injury and a third bullet hit Skyline member Greggory Fulgham's foot.

Because many of the witnesses to the altercation and shooting were friends, associates or members of the gangs involved, there was a tremendous amount of intimidation placed on them in the months following the shootings and the actual trial. Numerous witnesses were reluctant to talk to police or testify about the incident. Downey had even telephoned one witness, Angel Parrison, telling her she should leave town.

At trial, the above evidence was presented as well as the testimony of a number of witnesses associated with Lincoln Park and Skyline, and two cooperating witnesses, Deandre Moore and Kenny Reed. The testimony revealed the group from Lincoln Park knew members of Skyline would likely be at Mission Bay Park that fateful day and there would be a fight if the members of Skyline posed any problems as they had in 2002 at the Puerto Rican festival, which had also erupted in a fight and shooting between the two rival gangs. In addition to independent witnesses giving accounts of how the Lincoln Park group menacingly advanced toward the Skyline group at Mission Bay Park and giving physical descriptions of the shooter as having long hair pulled back in a ponytail, wearing a Dupont jacket with a green bandana over his face, being about 5'10" to 5'11" tall and thin, the jury received video and photographic evidence taken by Skyline member Allen Reddick at the beach that day showing the approaching gang's actions, and included stills of the 11 persons originally charged in this case. The physical descriptions of the shooter matched Downey's physical build.

In addition, both Moore and Reed, who had originally been charged with the same crimes as Downey and Tittle, and had pled guilty to lesser charges to avoid prison terms, testified as accomplices as a matter of law. Each had been at the Bay Vista Apartments with Downey, known as "Li'l Knockout," and other Skyline members before heading for the beach in several carloads via a liquor store, where Tittle, Silvels and additional Lincoln Park members joined the caravan. Before leaving the apartments, Reed heard the group talk about Skyline being at the beach and Downey ask "who was going to carry the gun or whatever." Both Reed and Moore described Downey as wearing a Dupont jacket or red "race car jacket" that day and said he had a digital camera with him earlier in the day.

Moore, who rode to the beach in an Oldsmobile with Downey and others, stated they parked the car near the roller coaster and walked across the street toward Bonita Cove after meeting with Reed and other Lincoln Park members who had arrived at the beach. When the group saw people from Skyline, gang signs and yelling began between the two rivals. Although he saw Downey pull a green handkerchief out of a pocket, saw someone in the Skyline group punch Tittle, and heard about six shots before running back toward the parking lot where he was detained by police, Moore did not see a gun or who was shooting it that day.

Although Downey had threatened Moore about testifying in this case, Moore identified Downey in court as the person wearing the Dupont jacket visible in one of the video stills, noted Downey had cut his hair two days after the shooting, and said Downey had merely smiled when asked later if he had anything to do with the shooting.

Reed claimed he did not see the fight with Skyline take place, but only saw the two groups of people "running at each other." According to Reed he bent down to tie his shoe and when he got up he heard gunshots. He froze when he saw the gun and saw Downey firing it in "their direction." When Reed ran back across the street to the parking lot, he saw Downey run to the Oldsmobile and return from the car without the Dupont jacket. When Reed later talked with Downey about the shooting, Downey told him he was the shooter and "it wasn't supposed to happen like that." Reed told others he had been close to the shooting and Downey was the shooter. Reed was impeached with many inconsistent statements he had made during the investigation about whether he had seen the shooting or knew who the shooter was.

The jury further received evidence that, besides Downey, an older Lincoln Park member, Chantell Wilson, also carried a gun to the beach that day, and that Downey had essentially admitted afterwards to various Lincoln Park members and associates other than Reed that he was the "shooter."

Parrison also unwillingly testified regarding her threats from Downey about her testifying and was impeached by numerous statements she had made to the police during the investigation when she denied knowing anything about the shooting at trial. In those earlier statements, she had told police Downey and others had planned the encounter with Skyline before leaving the Bay Vista Apartments, with Downey to carry the gun, and that afterwards, at her apartment, many of the Skyline members met, including Downey, and everyone talked about Downey being the one who shot "the kid" at the beach. Parrison also told the police Downey had cut his hair the day after the shooting. She thought the person in the Dupont jacket in the photograph stills could have been Downey.

In addition to the above, testimony of numerous police officers regarding the investigation and pretrial statements of other witnesses, who later changed their testimony at trial, as well as a gang expert testifying about the history of violence between Lincoln Park and Skyline and the significance of gang colors, monikers, signs and language were presented. The expert opined violence and shootings would be expected when large groups of these two antagonistic gangs came in conduct while in full gang colors. The expert and another police officer also discussed the gang songs on various CDs and letters found in the possession of Lincoln Park gang members, including Tittle and Downey, which contained words and lyrics about murdering Skyline members and warning about "snitches." The expert further discussed the "code of silence" among gang members and the practices of switching clothing around so as not to be identified by police.

Tittle presented several witnesses in his defense to show he did not fight back after Canty swung at him, he was angry with Downey and he thought the shooting was a "stupid thing" to do. He also relied on codefendant Silvels's testimony that he (Tittle) had made it clear to the Skyline group that he did not want any problems and the Lincoln Park group was only there to pick up girls at the festival. Downey's mother and an investigator testified in Downey's defense, hoping to show Downey had worn a striped sweater that day and was not the shooter as depicted in the video still photographs shown the jury.

After considering all the evidence, arguments and instructions, the jury convicted Tittle and Downey of various offenses stemming from the shootings, with Downey being found to have been the person who fired the gun that killed Thomas and wounded Canty and Fulgham.

DISCUSSION

I

SUFFICIENCY OF THE EVIDENCE

Downey contends the evidence was insufficient to support his convictions for attempted murder and Tittle asserts the evidence was insufficient under any theory to support his convictions for voluntary and attempted voluntary manslaughter. We disagree.

A. Standard of Review

In reviewing the sufficiency of the evidence to support a conviction, we determine " 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury's conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)

In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.) We simply consider whether " ' "any rational trier of fact could have found the essential elements of [the charged offenses] beyond a reasonable doubt." ' [Citations.]" (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict" the conviction will not be reversed. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

B. Downey's Arguments Regarding Insufficient Evidence

Downey contends the evidence is insufficient to support a finding of specific intent to kill for his two counts of attempted murder because the evidence showed he pointed the gun downward as he was shooting and it failed to show he had the intent to specifically kill Canty and Fulgham. We conclude there was sufficient evidence from which the jury could find Downey had the requisite specific intent for his attempted murder convictions.

With regard to attempted murder, "[a]n attempt to commit a crime requires a specific intent to commit the crime and a direct but ineffectual act done toward its commission." (People v. Kipp (1998) 18 Cal.4th 349, 376; CALJIC No. 6.00.) Such "intent or intention is manifested by the circumstances connected with the offense." (§ 21, subd. (a).) Section 187, subdivision (a) provides that "[m]urder is the unlawful killing of a human being, or a fetus, with malice aforethought." Attempted murder thus "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.)

As our Supreme Court recently explained, "Intent to unlawfully kill and express malice are, in essence, 'one and the same.' [Citation.] To be guilty of attempted murder [of Canty and Fulgham], defendant had to harbor express malice toward [each] victim. [Citation.] 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.' [Citation.]" ' [Citations.]" (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).)

Although the intent to kill must be proven and not merely inferred from the commission of another dangerous crime (People v. Belton (1980) 105 Cal.App.3d 376, 380), whether the defendant harbored such intent is a factual question which may be inferred from the facts and the circumstances surrounding the act, including the defendant's actions and words. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) Thus, the nature of an assault, the weapon chosen, the manner in which the weapon was used, the actual consequences of the assault, including the nature of the wound, can all provide evidence of the intent to kill necessary for attempted murder. (Id. at p. 946.) For example, firing a gun toward a victim at close range "in a manner that could have inflicted a mortal would had the bullet been on target is sufficient to support an inference of intent to kill . . . ." (Id. at p. 945.) That "the victim may have escaped death because of the shooter's poor marksmanship [does not] necessarily establish a less culpable state of mind." (Ibid.) In addition, "even if the shooting was not premeditated, with the shooter merely perceiving the victim as 'a momentary obstacle or annoyance,' the shooter's purposeful 'use of a lethal weapon with lethal force' against the victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill. [Citation.]" (Smith, supra, 37 Cal.4th at p. 742.)

Here, the evidence shows that Downey armed himself before going with other Lincoln Park gang members to Mission Bay with the understanding the rival gang Skyline would probably be there and that he would use the gun if any trouble began between the two gangs. When the Lincoln Park group quickly approached the Skyline group, Downey tied his hair in back and put a bandana over his face. Upon hearing gang challenges and seeing fisticuffs, Downey pulled out the gun and began shooting at Skyline gang members in close range. From this evidence, the jury could reasonably infer that Downey had purposefully shot into the group of Skyline gang members with the intent to kill each of the members he could hit or he had knowledge that his act of shooting into the group of Skyline members would " ' "to a substantial certainty," ' " result in some Skyline gang members' death. (People v. Davenport (1985) 41 Cal.3d 247, 262.)

Downey's very act of discharging the firearm into the Skyline group at close range, hitting Thomas with one bullet, and Canty and Fulgham with two other bullets, supports the inference he shot each time with the intent to kill. The fact that he only hit Canty and Fulgham in the calf and toe, respectively, does not compel a different conclusion. Although the evidence was conflicting as to whether Downey pointed the gun down toward the ground when he shot, the evidence was not clear as to the relative positions of either Canty or Fulgham when they were hit. As noted above, however, "poor marksmanship" does not negate the intent to kill or the fact a person is "randomly shooting" at a group of people. (Lashley, supra, 1 Cal.App.4th at p. 945.) Further, there was testimony Skyline members began ducking and hitting the ground to get out of the way when they heard shots being fired. The jury could have reasonably inferred from such evidence that Downey was pointing the gun down to hit some Skyline members who had reacted in such manner.

Moreover, if the jury had believed Parrison's statements to the police that after discussion with other gang members at Bay Vista Apartments, Downey had armed himself to go to Mission Bay knowing there would be Skyline members there and intended to provoke a confrontation so he could kill some Skyline members, then the jury could have easily found express malice on Downey's part. Clearly, on this record there was substantial evidence to support a finding Downing had the specific intent to kill any Skyline member, including Canty and Fulgham.

Nevertheless, citing People v. Bland (2002) 28 Cal.4th 313 (Bland), which held the doctrine of transferred intent does not apply to the crime of attempted murder, and that "[t]o be guilty of [such crime], the defendant must intend to kill the alleged victim, not someone else" (id. at p. 328), Downey asserts the evidence failed to show he had the intent to kill Canty and Fulgham specifically as the named victims of counts 2 and 3. The court in Bland, however, explained that when a defendant fires a gun at a group of people with the intent to kill a particular individual in that group, a charge of attempted murder of someone else in the group can be sustained if " ' . . . 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 victim's vicinity.' " (Id. at pp. 329-330.) As one example of this "kill zone," the court mentioned the firing of an automatic weapon at a group of people on the street motivated by the desire to kill one particular person in the group and stated, "[w]here the means employed to commit the crime against a primary victim creates 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." (Id. at p. 330.) The court in Smith approved of this theory of concurrent intent which could be argued "where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim . . . as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm. [Citation.]" (Smith, supra, 37 Cal.4th at p. 746.) The court reiterated that this concurrent intent theory is only " 'a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.' [Citation.]" (Ibid.) Under such theory, the jury could have arguably inferred from the evidence that Downey intended to kill Canty who had struck his fellow Lincoln Park gang member Tittle and that he shot at Thomas and Fulgham with the intent to kill them because they were within the "kill zone" of Skyline members fighting with Lincoln Park.^[6]

In sum, under either theory, we conclude there was substantial evidence to support the jury's finding that Downey was guilty of attempting to murder Canty and Fulgham.

C. Tittle's Arguments Regarding Insufficient Evidence

Tittle asserts the evidence was insufficient to support his convictions for voluntary and attempted voluntary manslaughter because under an aiding and abetting theory of liability the evidence failed to show he either harbored the same criminal intent as the shooter Downey or that the murder was the natural and probable consequence of the gang altercation in which he participated. We conclude there was sufficient evidence presented from which the jury could find Tittle guilty under any theory advanced by the prosecutor in this case for voluntary and attempted voluntary manslaughter.

"Manslaughter[, which is a lesser offense of murder,] is 'the unlawful killing of a human being without malice.' (§ 192.) A defendant lacks malice and is guilty of voluntary manslaughter in 'limited, explicitly defined circumstances: either when the defendant acts in a "sudden quarrel or heat of passion" (§ 192, subd. (a)), or when the defendant kills in "unreasonable self-defense"--the unreasonable but good faith belief in having to act in self-defense [citations].' [Citation.]" (People v. Lasko (2000) 23 Cal.4th 101, 108 (Lasko).) "[T]he presence or absence of an intent to kill is not dispositive of whether the crime committed is murder or the lesser offense of voluntary manslaughter." (Id. at p. 110.)

In order to find a defendant guilty of voluntary manslaughter, a jury must find that "1. A human being was killed; [¶] 2. The killing was unlawful; and [¶] 3. The perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life; and [¶] 4. The perpetrator's conduct resulted in the unlawful killing." (CALJIC No. 8.40.) To find a defendant guilty of attempted voluntary manslaughter, a jury must find that "1. A direct but ineffectual act was done by one person towards killing another human being [and] [¶]2. That person had the specific intent to kill the other person[; and] 3. The actions taken to kill were unlawful." (CALJIC No. 8.41.)

When the defendant is prosecuted as a principal under an aiding and abetting theory of liability, the jury must also find that the defendant "(1) [w]ith knowledge of the unlawful purpose of the perpetrator, and [¶] (2) [w]ith the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) [b]y act or advise aids, promotes, encourages or instigates the commission of the crime." (CALJIC No. 3.01; § 31; People v. Hill (1998) 17 Cal.4th 800, 851.) A defendant who knowingly aids and abets a crime is responsible for that crime and any other crime committed by a perpetrator which "is a natural and probable consequence of the intended crime." (People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) The test for determining whether any additional crime is a natural and probable consequence of a so-called target offense is not "whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable." (Ibid.) The question of whether a charged crime is the natural and probable consequence of a target offense is one for the jury. (People v. Cummins (2005) 127 Cal.App.4th 667, 677.)

In cases involving gang confrontations, the courts have generally found, that due to the nature of such conflicts, the evidence may show that it is reasonably foreseeable some gang members will carry guns during those encounters and that a shooting may result as a consequence of verbal challenges and fistfights. For example, in People v. Gonzalez (2001) 87 Cal.App.4th 1 (Gonzalez), the court held that defendants, prosecuted under an aiding and abetting theory for a murder during the course of a gang fistfight, could be held liable for murder even though they might not know the shooter was armed with a gun. (Id. at pp. 7-10.) The court explained that substantial evidence there allowed the jury to conclude it was reasonably foreseeable when the defendants instigated the gang fight that a fatal shooting would be the natural and probable consequence of the fight between the two gangs. (Id. at p. 10.)

Similarly, in People v. Montes (1999) 74 Cal.App.4th 1050 (Montes), where a defendant was convicted of attempted murder of a rival gang member under the theory he aided and abetted another gang member in the commission of assault and breach of the peace, the court held the attempted murder was not unreasonably beyond the natural and probable consequences of simple assault or breach of the peace even though the defendant may have not known the other gang member was armed because "it was reasonably foreseeable the initial confrontation would quickly escalate to gunfire [within the context of gang violence]." (Id. at p. 1056.)

Here, as in Gonzalez, supra, 87 Cal.App.4th 1 and Montes, supra, 74 Cal.App.4th 1050, it was reasonably foreseeable that a fatal shooting could result from the confrontation between the rival gangs of Lincoln Park and Skyline in Mission Bay Park on June 15, 2003. The evidence showed that Tittle, Downey and other Lincoln Park gang members traveled in caravan to Mission Bay Park dressed in full gang colors with the knowledge that their rival gang Skyline would likely be present at the annual Puerto Rican festival where there had been a shooting between the two gangs the year before. When the Lincoln Park group spotted Skyline in the distance, they proceeded in masse to confront them, with some members donning gloves and others covering their face with green bandanas. As the two groups began yelling at each other, Tittle, who one witness described as the instigator, told the Skyline group, "we're not trippin, if you're not trippin," and then identified himself as "Knockout-D from Lincoln Park Murda Gang." As the Lincoln Park crowd began yelling "murda gang" repeatedly, Tittle tossed a soda can at Skyline member Canty who then hit Tittle and fisticuffs broke out between the two groups followed shortly by gunshots fired by Downey.

From this evidence, combined with the evidence of the violent history described between the two gangs by the gang expert, several gang members and other police officers, including the fact some members in each group were usually armed when they confronted each other, the jury could have reasonably found Tittle directly aided and abetted the Lincoln Park gang in the battle with Skyline and could have reasonably concluded Tittle had knowledge someone in his group was armed with a gun and would defend him if a fight broke out. By provoking and engaging in the gang fight with Skyline, a jury could have thus found Tittle harbored the same intent to kill as Downey by directly aiding and abetting the resultant shooting with the intent the shooting occur. Alternatively, on the same facts, the jury could have found that Tittle intended to facilitate the target offenses of a breach of peace, assault or battery and that the shooting committed by Downey, another Lincoln Park gang member, was a foreseeable consequence of those target offenses. (See People v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5.) Therefore, there was sufficient evidence in the record to support all of Tittle's convictions.

Contrary to Tittle's arguments he could not be found to have aided and abetted Downey in any crimes because there was no evidence he had knowledge about the gun and his words to Skyline made clear he did not want any trouble, the jury was entitled to consider the circumstantial evidence provided via the gang expert regarding the nature of gang warfare. "Given the great potential for escalating violence during gang confrontations, it is immaterial whether [Tittle] specifically knew [Downey or other gang members] had a gun. [Citations.]" (Montes, supra, 74 Cal.App.4th at p. 1056.) Tittle's counsel argued to the jury Tittle's lack of knowledge of the gun and also his interpretation of the words Tittle spoke. We presume the jury considered such arguments and rejected them. We do not reweigh the evidence.

In sum, the record contains sufficient evidence to find Tittle guilty of voluntary manslaughter and attempted voluntary manslaughter.

II

ADMISSION OF ALLEGED OTHER CRIMES EVIDENCE

Pretrial the court tentatively ruled that Angel Parrison's testimony at the preliminary hearing could be presented at trial if she could not be located, but it would be limited only to Downey because Tittle and Silvels had not had the opportunity to cross-examine her. The prosecutor also agreed with the defense position that statements Parrison had made to the police during the investigation of the case about how the shooting was planned at Bay Vista Apartments before the Lincoln Park group went to the beach on Father's Day 2003 would have to be stricken so as to protect Tittle's and Silvels's rights should Parrison be unavailable at trial to cross-examine regarding her pretrial statements.

Subsequently, during trial, Tittle's counsel apprised the court that Parrison had surfaced, having been found hiding in the headboard of a bed, that he did not know what she would say at trial, but was concerned she would blurt out that Tittle was her pimp. The trial judge commented such fact was "relevant to her bias, interest, motive, the manner in which she's testifying, if she's testifying against Tittle, if she bears some resentment towards him or if she bears some allegiance to him, I think it's clearly relevant to her credibility." The court tentatively denied Tittle's motion to exclude such evidence on grounds it was prejudicial to him because it would "reflect negatively on him," finding the information very probative and "given the gravity of the charges facing [Tittle, the court was] not so sure that the allegation that he might have pimped this girl around a little bit is going to be of great concern to him or the defense team."

When it became obvious during Parrison's testimony that she was minimizing her relationship with Tittle, claiming she only knew him through family connections, he was her "cousin's baby's daddy," the prosecutor requested the court allow evidence that Tittle was Parrison's pimp and that she was afraid of him because she knew he had previously assaulted her cousin. The trial judge overruled Tittle's objection that the pimping information was prejudicial inadmissible character evidence, stating "[Parrison] left everyone with the impression that . . . her exposure to Mr. Tittle is minimal, if at all. She's indicated on at least one occasion that she doesn't know him at all. And she certainly is minimizing what appears to be her relationship with him. [¶] I think it certainly can come in for purposes of impeachment as far as that particular issue is concerned. [¶] So I will allow that aspect of it, but she will not be allowed to testify to any physical confrontation between Mr. Tittle and some other woman that she was aware of."

The court, however, granted Tittle's counsel's request he be permitted to bring out the fact that Tittle was her pimp, rather than the prosecutor, while at the same time preserving his objection to the admission of such evidence. When Tittle's counsel later cross-examined Parrison, she denied she was a prostitute and said the statements she made to police during the investigation of this case that she was one and that Tittle was her pimp were false. On redirect, Parrison continued to maintain that she was not involved in prostitution and that she had never told the investigating officers Tittle was her pimp.

On appeal, Tittle asserts the trial court prejudicially erred in allowing the prosecution to present character evidence that he was the pimp of witness Parrison. We disagree.

Generally, we apply "the abuse of discretion standard to review any ruling by a trial court on the admissibility of the evidence, including a ruling on an Evidence Code section 352 objection. [Citation.]" (People v. Cox (2003) 30 Cal.4th 916, 955.) As the People point out in their respondent's brief, the record reflects the evidence about Tittle's purported pimping endeavors was not admitted as character evidence but rather as evidence relevant to showing her bias, interests, or other motives, and her credibility. (Evid. Code., § 780.)^[7] Parrison had made statements at trial that she hardly knew Tittle and had made pretrial statements to law enforcement about her relationship with him that were inconsistent with not knowing Tittle well, i.e., that he was her pimp. Thus based on Evidence Code section 780, evidence of Parrison's relationship with Tittle was, as the trial court found, relevant to her bias, interests, or motives in testifying the way she was testifying. (Evid. Code, § 780, subd. (f).) Her earlier statements to law enforcement about her relationship with Tittle were also relevant as impeachment because they were inconsistent with her trial testimony. (Evid. Code, § 780, subd. (h).) Such evidence further tended to explain her attitude toward the case and her reluctance to testify because she was so closely connected to Tittle and the Lincoln Park gang and feared being viewed as a "snitch." (Evid. Code, § 780, subd. (j).)

The court weighed the very probative nature of the evidence of Parrison's earlier statements to law enforcement about her relationship with Tittle, which showed she knew him far better than she claimed, against its minor prejudicial value, before admitting it at trial. The court also granted Tittle's counsel's request to present the evidence for the first time rather than the prosecutor, to minimize its purported prejudicial effect. No abuse of discretion in the admission of such impeachment evidence is shown.

III

JURY INSTRUCTIONS

The general rule is that in a criminal case the trial court must instruct on the "principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681.) With this preliminary rule in mind, we address each defendant's instructional error contentions in turn.

A. Accomplice Determination Instruction

Downey asserts the trial court erred by failing to sua sponte instruct the jury with CALJIC No. 3.19^[8] concerning whether Parrison was an accomplice whose testimony should have been viewed with distrust and would have required independent corroboration to substantiate. He argues such was prejudicial error because there was sufficient evidence presented at trial from which the jury could have found Parrison was an accomplice to the charged offenses, and if the jury had done so, then her testimony could not have provided the necessary corroboration for Reed's and Moore's accomplice testimony that he (Downey) was the shooter at Mission Bay Park on Father's Day 2003. His assertion is meritless.

Section 1111 provides "[a] conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense," and defines an accomplice as "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." This definition includes principals in the offense, but not accessories. (People v. Tewksbury (1976 15 Cal.3d 953. 960.) A "principal" is one who is "concerned in the commission of a crime [regardless of] whether [he or she] directly commit[s] the act constituting the offense, or aid[s] and abet[s] in its commission[.]" (§ 31.) As noted earlier, one is liable as an aider and abettor if he or she acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating the commission of the offense. (People v. Marshall (1997) 15 Cal.4th 1, 40.)

When there is evidence from which the jury could find a witness to be an accomplice, the court has a sua sponte duty to instruct on accomplice testimony regarding that witness. (People v. Lewis (2001) 26 Cal.4th 334, 369 (Lewis).) Such instructions inform the jury that if it finds that witness is an accomplice, the witness's testimony should be viewed with distrust and must be corroborated by evidence tending to connect the defendant with the commission of the offense. (CALJIC Nos. 3.19, 3.11, 3.12.) The cautionary instructions are required because an accomplice may try to shift the blame in an effort to minimize his or her own culpability. (People v. Tobias (2001) 25 Cal.4th 327, 331.)

However, the court need not give the accomplice instructions if it determines the evidence is insufficient as a matter of law to support a finding that that witness is an accomplice. (Lewis, supra, 26 Cal.4th at p. 369.) Substantial evidence is not just any evidence, no matter how weak, but evidence sufficient to deserve consideration by the jury. This requires something more than mere speculation. (Id. at pp. 369-370.) Mere knowledge of a crime and presence at the scene is also insufficient because "this fact without more merely means that [the individual] was an eyewitness and not necessarily an accomplice to the crimes." (Id. at p. 369.) The burden is on the defendant to establish by a preponderance of the evidence that a witness is an accomplice. (People v. Sully (1991) 53 Cal. 3d 1195, 1228.)

Here, even under this lesser standard, the jury could not have reasonably found Parrison to be a principal in the offenses charged against Downey and Tittle because based on the testimony presented at trial, there was no evidence to support a finding she was an accomplice to those crimes. Parrison was a reluctant witness who changed her testimony and lied numerous times. Although she had made pretrial comments to police or investigators that she had witnessed the shooting and had stood right next to the shooter, Parrison conceded at trial and to a defense investigator she had only heard about the shooting and had not seen it. In addition, the video and still photographs showing the conflict between Lincoln Park and Skyline that day revealed there were no women present during the confrontation.

Contrary to Downey's appellate arguments, the facts Parrison may have had knowledge he and other Lincoln Park gang members were going to the beach armed that day and she was present at the beach during the relevant time, does not automatically make her an accomplice to murder and attempted murder. Credible evidence revealed that her presence at the beach that day was not in the area of the confrontation. Although she may have had knowledge of the Lincoln Park gang members' intent to confront Skyline if they ran into them, there was no evidence she either participated in the crimes or acted with the intent or purpose of committing, encouraging or facilitating commission of those offenses that day. The record is simply void of any substantial evidence indicating Parrison "in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures." (People v. Villa (1957) 156 Cal.App.2d 128, 134.)^[9]

B. Specific Intent to Kill for Attempted Murder

In an argument somewhat related to his sufficiency of the evidence argument, Downey contends the trial court erred in failing to instruct the jury that in order to convict him of the two attempted murder counts it had to find he had the specific intent to kill each of the two specific victims, Canty and Fulgham. For this argument, Downey again relies on Bland, supra, 28 Cal.4th 313, 331 and asserts that without such an instruction, and the prosecutor's argument during closing, the jury could have erroneously convicted him of the two attempted murder counts on a transferred intent theory. Although the prosecutor may have inartfully argued the concept of concurrent intent in closing, the court properly instructed the jury on the necessary elements of attempted murder and Downey did not request further clarifying instructions or claim any misconduct in the prosecutor's argument. Under such circumstances, any conceivable error in the instructions was harmless.

Here, during jury instruction discussions, the prosecutor requested the court give the jury CALJIC No. 8.65,^[10] transferred intent instructions, for the murder charges because, although his major theory was that Downey was trying to kill any Skyline member in the crowd, he could argue that Downey was trying to shoot Canty but got Thomas instead. When the court agreed it would give the instruction, Downey's counsel objected, citing Bland and arguing because this case also included attempted murder charges to which the transferred intent doctrine did not apply, the instruction would be confusing to the jury. After further discussion the court said it would not give the instruction, but would wait until after argument to see if such needed to be given.

The court then considered the prosecutor's request to give CALJIC No. 8.66.1 on concurrent intent for attempted murder^[11] and counsel's objections the instruction contained an argumentative phrase, the "kill zone," and the fact no specific person was named as the targeted victim. The court ruled it would not give the instruction, but that the prosecutor could argue the theory without the phrase "the kill zone." As with the transferred intent instruction, the court would wait until after argument to determine whether the instruction was needed.

The court subsequently instructed the jury that:

"The defendants are accused in counts 2 and 3 of having committed the crime of attempted murder. . . . [¶] Every person who attempts to murder another human being is guilty of the crime of attempted murder. [¶] Murder is the unlawful killing of a human being with malice aforethought. [¶] In order to prove an attempted murder, each of the following elements must be proved: [¶] 1. A direct but ineffectual act was done by one person towards killing of another human being; [¶] 2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being. [¶] In deciding whether or not such act was done, it's necessary to distinguish between mere preparation on the one hand and the actual commission of the doing of the criminal deed on the other. Mere preparation, which may consist of planning a killing or devising, obtaining, or arranging the means for its commission, isn't sufficient to constitute an attempt. However, acts of a person who intended to kill another will constitute an attempt where those acts clearly indicate a certain unambiguous intent to kill. The acts must be an immediate step in the present execution of the killing, the progress of which would have been completed unless interrupted by some circumstance not intended in the original design."^[12]

During closing argument, the prosecutor explained that "[a]ttempted murder is trying to commit murder, but you don't succeed. You have the specific intent to kill. [¶] In this case, we have a number of victims. You do not need to prove the shooter killed or attempted to kill a particular person in this case. A person who primarily intends to kill one person may also concurrently intend to kill other persons within a particular zone of risk. [¶] In other words, you shoot into a crowd trying to kill someone. You are responsible for those you hit. If I go up and I'm trying to shoot one of the jurors and I shoot and I hit a juror in the back, guess what? I don't get off because I didn't hit you. I'm guilty of the same murder of the person in the back. [¶] If I go into a crowd and start shooting at everybody, I'm guilty of attempted murder if the people that don't get killed are injured." The prosecutor further argued "Downey . . . hit three guys from Skyline because he was aiming at the specific target of Skyline [gang members]."

As noted earlier, Downey's counsel argued that if the jury believed Downey was the shooter, the evidence showed he did not have the intent to kill when he fired the gun because it was pointed downward. Counsel also argued that the shooter had to have intentionally shot at each victim, saying "I am going to shoot this guy. . . ."

When the court further instructed the jury before its deliberations, it did not give instructions on either transferred intent or concurrent intent and none of the counsel again requested such instructions.

On this record, we find the court properly instructed the jury concerning the elements of attempted murder, making it clear the jury had that decision to make as to two separate counts. The court did not instruct the jury it could find Downey guilty of the attempted murder of one person based on a finding he intended to kill a different person. The instructions of attempted murder were correct and unambiguous. Although a trial court might amplify the instructions by further telling the jury it was necessary to find the required intent as to each victim, it was not required to do so. If Downey had wanted further explanation on the intent to kill element, he could have requested clarifying instructions and his failure to do so generally waives his complaints about the instruction on appeal. (People v. Sanders (1995) 11 Cal.4th 475, 533.)

Further, if Downey had thought the prosecutor's arguments were wrong, misleading or confusing, he should have interposed an objection to such statements so the matter could have been corrected or clarified at that time. (People v. Valdez (2004) 32 Cal.4th 73, 122 [issues of prosecutorial misconduct are waived in the absence of a timely objection].) Although we agree that certain statements in the prosecutor's argument, in which he appears to have invoked some form of the so-called Bland "concurrent intent" concept to apply in this gang case where no specifically named victim is the target of the shooting, may be confusing while standing alone, considered together they essentially told the jurors they needed to find Downey had a specific intent to kill a person who was a member of the Skyline group and that he could have had the concurrent intent to kill other Skyline persons within the zone of risk defined as the Skyline group.^[13] Thus contrary to Downey's assertion, the prosecutor's argument did not improperly suggest that Downey could be found guilty of the attempted murder of someone (Canty or Fulgham) he did not intend to kill simply because those victims were in that zone of risk. Canty and Fulgham were both Skyline gang members and part of the targeted group in the zone of people Downey intended to kill.

Although we do not find prejudicial error in the court's instructions on attempted murder, we are concerned that the court after being requested to do so did not give CALJIC No. 8.66.1 which would have clearly defined the concurrent intent concept for the jury which the court knew the prosecutor was relying upon and would be arguing. Not doing so, the court left the jury with the prosecutor's explanation of such legal concept which we have noted above was confusing in parts. Even though our Supreme Court in Bland noted the "concurrent intent theory is not a legal doctrine requiring special jury instructions, . . . [but] 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" (Bland, supra, 28 Cal.4th at p. 331, fn. 6), and reiterated in Smith that such special "kill zone" instructions were not required even if argued (Smith, supra, 37 Cal.4th at p. 746), we believe it would be better practice for a court to give instructions on the general principles of such legal concept of concurrent intent in the interest of preventing any jury confusion when the evidence supports the "kill zone" concept and it is relied upon and argued in a case.

In sum, because the jury was properly instructed under CALJIC No. 8.66 to independently evaluate whether Downey possessed the requisite intent to kill as to both count 2 and 3, there is no reasonably probability the jury misapplied those instructions and found him guilty of attempted murder without the requisite specific intent to kill as to each victim.

C. Instructions on Aiding and Abetting Certain "Target Offenses"

In instructing the jury as required by law on aider and abettor liability based on the natural and probable consequences doctrine (see People v. Prettyman (1996) 14 Cal.4th 248, 269 (Prettyman)), the court defined the target offenses upon which the prosecutor relied for such liability in this case. Tittle contends the court's instructions on such doctrine were improper because they allowed the jury to consider whether the shooting of the three victims in this case was a natural and probable consequence of the target offenses of breach of the peace (§ 415), simple battery (§ 242), or simple assault (§ 240). He argues that under an objective standard these misdemeanor offenses are too trivial to support a conviction for voluntary manslaughter under the natural and probable consequences doctrine.

In Montes, supra, 74 Cal.App.4th 1050, the court addressed and rejected the same issue Tittle now raises in the context of a shooting between two rival gangs and found "the targeted offenses of simple assault and breach of the peace for fighting in public were not trivial." (Id. at p. 1055.) The court recognized the difference between a fistfight involving a group of strangers and one arising in the context of an ongoing violent rivalry between two gangs which "can easily escalate from mere shouting and shoving to gunfire." (Ibid.) The court found that in such circumstances, "[t]here can be little question that the target offenses of assault and breach of the peace [are] closely connected to the shooting." (Ibid.)

We agree with the reasoning in Montes and conclude it is dispositive of Tittle's assertion. Like the gangs in Montes, Lincoln Park and Skyline are arch rivals with a history of violence. Therefore, the facts Lincoln Park gang members advanced toward a group of Skyline while dressed in full colors, put on bandanas and gloves, shouted gang monikers and insults regarding Skyline, and tossed a soda can at one Skyline member could readily escalate to fisticuffs and gunfire and provide the close connection between the alleged "trivial" target crimes aided and abetted and the shootings that actually were committed. (Prettyman, supra, 14 Cal.4th at p. 269; Montes, supra, 74 Cal.App.4th at pp. 1055-1056.) We conclude there was no error in the court instructing the jury on the objected-to misdemeanor target offenses for aider and abettor liability under the natural and probable consequences doctrine.

D. Refusal to Instruct on Involuntary Manslaughter

On September 28, 2004, during deliberations, the court received a note (Question # 5) from the jury asking "If we find one defendant[] guilty of a second degree murder, are or could the other defendants be guilty of aiding and abetting a lesser charge?" After several discussions with counsel regarding the inquiry, the court tentatively ruled it would answer the question in the affirmative over all defense counsels' objections.

Codefendant Silvels's counsel also requested, without waiving any objection to the court's tentative answer, the court instruct on the lesser offense of involuntary manslaughter, arguing the "jury could very well find that the shooting or that the acts that [Silvels] committed were either lawful, but because of the circumstances and because of natural and probable conseq