Opinion
B222456
10-07-2011
THE PEOPLE, Plaintiff and Respondent, v. RAMELLE KAMACK et al., Defendants and Appellants.
Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant Ramelle Kamack. John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant Calvin Phipps. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA069698)
APPEALS from judgments of the Superior Court of Los Angeles County. Eric C. Taylor and James R. Brandlin, Judges. Affirmed as modified.
Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant Ramelle Kamack.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant Calvin Phipps.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
In separate trials, juries convicted appellants Ramelle Kamack and Calvin Phipps of the first degree murder of Joshua Davis and the attempted murder of Adriel Deayon. The juries found that the attempted murder was willful, premeditated and deliberate. (Pen. Code, §§ 187, subd. (a), 664, 187, subd. (a).) With respect to both appellants, the juries found that the offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) In Kamack's case, the jury found that a principal personally discharged a firearm in commission of the murder and attempted murder. (§ 12022.53, subds. (c), (d), (e)(1).) In Phipps's case, the jury found that he personally discharged a firearm in commission of the murder and attempted murder. (§ 12022.53, subds. (b), (c), (d), (e)(1).)
Kamack was convicted in a second trial after his first trial ended in a deadlocked jury.
Phipps's trial was severed from that of Kamack and a third defendant, Martell Byrd, on July 24, 2009. On September 2, 2009, Byrd pleaded "no contest" to second degree murder.
All further statutory references are to the Penal Code unless stated otherwise.
The trial court sentenced Kamack to 25 years to life for the murder and a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1). Kamack received a consecutive life term for the attempted murder and 25 years to life for the firearm enhancement under section 12022.53, subdivisions (c) and (e)(1). The trial court imposed and stayed the terms for the remaining firearm enhancements pursuant to section 654. The court also stayed the section 186.22 gang enhancement on the murder count under section 654.
At sentencing, the trial court expressed a desire to stay Kamack's sentence on the gang allegation found true under section 186.22, subdivision (b)(1)(C). When the court clerk asked if the term was 10 years, the prosecutor explained that the enhancement would only extend the minimum parole eligibility date. The prosecutor further explained that the enhancement should not be imposed because of the section 12022.53, subdivision (e) enhancement. At that point, the court simply advised Kamack of his appellate rights without any further discussion about the gang enhancement. Counsel for Kamack filed a motion to correct errors in the abstract of judgment. In response, the trial court made a change to the gang enhancement on the murder count by imposing and staying under section 654 a term of 15 years pursuant to section 186.22, subdivision (b)(5). The court also ordered that the sentence on the attempted murder count was life with the possibility of parole, and 25 years to life for the firearm enhancement. The abstract was amended accordingly.
The trial court sentenced Phipps to state prison for 25 years to life for the murder and a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). For the attempted murder, the trial court imposed a consecutive sentence of life and 25 years to life for the firearm enhancement. The trial court imposed the statutory terms for the additional firearm enhancements but ordered those terms stayed under section 654. The court also stayed the section 186.22 gang enhancement under section 654.
Kamack appeals on the grounds that: (1) the trial court committed prejudicial constitutional error in admitting certain statements by Kamack and co-perpetrator Byrd; (2) Kamack's counsel was ineffective in failing to request instructions limiting the use of other-crimes evidence; and (3) the trial court erred in imposing and staying determinate terms for the gang enhancements. Kamack joins in all the arguments made by Phipps.
Phipps appeals on the grounds that: (1) the trial court erroneously gave the "kill zone" portion of CALCRIM No. 600; (2) the prosecutor misstated the "kill zone" concurrent intent element in argument and erroneously argued that she did not have to prove there was intent to kill Deayon; (3) Phipps's counsel was ineffective in failing to object to the prosecutor's misstatement of the law and failing to request clarifying instructions on the "kill zone"; (4) Phipps's counsel was ineffective in failing to object to other crimes evidence or ask for a limiting instruction; (5) there was insufficient evidence in support of the finding that the attempted murder was willful, deliberate and premeditated, resulting in a violation of due process; (6) the trial court erred in staying the surplus section 12022.53 allegations under section 654 instead of section 12022.53; (7) the trial court erred in imposing and staying a 10-year gang enhancement on the indeterminate life term instead of striking it; and (8) the cumulative effect of the trial errors requires reversal.
FACTS
Kamack and Phipps underwent separate trials. Given the nature of the crimes, the facts elicited at their separate trials are largely the same. We recite one statement of facts for both appellants and note differences in the evidence where appropriate.
Adriel Deayon and Joshua Davis were coworkers. On July 3, 2007, Deayon drove Davis home to Thoreau Street in Los Angeles, arriving at approximately 1:00 a.m. As Davis and Deayon sat in Deayon's car, Davis's cousin, Trevon Greer, pulled up behind them and parked. Davis got out of Deayon's car and spoke with Greer briefly while Deayon waited in her car. Davis then went to the driver's side window of Deayon's car and leaned into the window to speak with her. At that moment, another car pulled next to Deayon's car. Deayon saw sparks and heard four or five gunshots coming from the direction of the other car. She did not notice any headlights on the car. Deayon did not see the shooter or the type of car it was. After the shots, the car sped away. She saw Davis fall.
From the driver's seat of his car, Greer heard eight or nine gunshots and saw flashes coming from the rear passenger window of the other car. Greer identified the car as a silver Jaguar with a newer body style and dark tinted windows in the back. Greer testified at Phipps's trial that he did not see headlights on the Jaguar.
Davis died as a result of multiple gunshot wounds. He was shot in the head, back, and thigh.
Police arrived at the scene in five to eight minutes. Los Angeles County Deputy Sheriff Howard Fuchs spotted the suspect vehicle from a sheriff's helicopter within minutes. He saw a silver Jaguar with tinted windows driving westbound on Imperial Highway from Crenshaw Boulevard. He relayed the car's location to deputies on the ground and continually updated the Jaguar's progress. He ensured the deputies stopped the correct car.
Several deputies conducted a stop of the Jaguar and had the occupants exit the car. Kamack was in the driver's seat, Byrd was in the front passenger seat, and Phipps was in the backseat. All three men were subjected to gunshot residue tests. Before Phipps was tested, he licked his hands and wiped them on his shirt. No gunshot residue was found on Kamack or Phipps. One particle was found on Byrd.
Deputy Steve Pratt placed the three men in the rear of his patrol car. Deputy Pratt had placed a listening device in the car, and he monitored the conversation between the three men by means of an earpiece. The conversation was not recorded. Deputy Pratt heard appellant Phipps say that they were "fucked." Phipps told Kamack that he should not have stopped the car. Kamack told Phipps to be quiet and not say anything. Byrd began trying to create a consistent story as to where they had been coming from, and Kamack repeated that they should be quiet. At one point, Phipps said they should not have left the house, and they were "boo." Deputy Pratt understood "boo" as slang for being in trouble. He heard Phipps use the word "burner" during an otherwise inaudible portion of the conversation. The deputy knew that "burner" was slang for a gun. Phipps told the other men to "stay up" and not say anything. He said, "They don't have anything. All they have is suspicion."
The deputies took Greer to see the stopped Jaguar approximately 15 to 20 minutes after the shooting. Greer said that the Jaguar looked exactly the same as the one he had seen. It was the same make, model, and color and it had the same type of window tint.
A subsequent examination of the Jaguar revealed it had graffiti written in dust on the rear window and on top of the car. The writing included "Inglewood Family Blood," and "CK" with the letter "C" crossed out. Deputy Boyd Zumwalt found two gloves in and around the rear seat. The gloves bore particles consistent with gunshot residue. Deputy Zumwalt also found two cell phones in the Jaguar. The subscriber history for the telephone that functioned showed that it belonged to Kamack.
Detective Ty Labbe examined the records for Kamack's telephone. A series of calls were made shortly before and after the shooting. Detective Labbe explained that cell phones use the closest tower with the strongest signal to send out a call. Records from service provider Sprint showed that Kamack's phone hit the north side of a tower located at 11711 South Western Avenue at 1:04 a.m.—the approximate time of the murder. At that time, Kamack's telephone was located less than two miles north of the tower at the South Western Avenue location. The records showed that the telephone was moving from the general area of Davis's murder to the location where the Jaguar was stopped.
After the three men were arrested, Kamack and Byrd were put in the same holding cell, and their conversation was recorded. Kamack expressed his belief that "his," presumably Phipps's, story did not match. Byrd advised Kamack that he should never mention a time, and he should not talk to detectives any more. They discussed their stories, and Kamack remarked, "Our, our stories are just alike." Kamack also remarked, "We should have (inaudible) soon as we got that first „CK' instead of trying to go on another one." Byrd blamed himself. Kamack said, "We would have been already gone." Byrd replied, "At least we got the gun away." Kamack remarked, "You tried to (Inaudible) me. They would have popped that witness too. A whole bunch of shit would of happened with that gun when, if that witness would have got popped too, couldn't have dialed 911."
Because Phipps was not present during the conversation between appellant Kamack and Byrd, this evidence was not introduced during Phipps's trial.
Phipps was also brought into the holding cell, and Kamack asked him why he had talked so much. The three men squabbled about what they had said to the police, with Phipps being blamed for saying too much by Byrd and Kamack. Byrd told Phipps to "[s]tick to the same fuckin' story. And don't answer no more mother fuckin' questions. That's what I kept telling you in the room." The three men tried to harmonize their stories to police. Byrd warned Phipps, "Don't tell your girl over the phone to try to get rid of the gun." Byrd chastised Phipps because he "kind of fucked it up," whereas his story and Kamack's stories were good. Byrd asked Phipps if he thought the female witness had seen him. Kamack said "[s]he probably didn't," and "[t]hat bitch probably panicked." Byrd said it would be their word against hers, so he was not really worried about her. Kamack noted that appellant Phipps had been licking his hands even though he had been wearing gloves. Kamack remarked that the police did not have any shells. Byrd said, "I know I should never try to get another CK. . . . But I was trying to be greedy. I was trying to get two in one night." Phipps replied, "That would'a been nice." The recording was approximately five hours long, but it was condensed for the jury.
Detective Kerry Tripp testified as a gang expert for the prosecution. He said that Phipps was a member of the Inglewood Family Bloods criminal street gang, whereas Kamack and Byrd were members of the Avenue Piru Blood gang. These two Blood gangs were friendly, and it was not unusual for members of the two gangs to commit crimes together. The location where the shooting occurred was claimed by a rival gang, the 111th Street Neighborhood Crips. Detective Tripp found no evidence that Davis was a gang member, however. The detective testified that "CK" stands for "Crip killer." Detective Tripp was of the opinion that the charged crimes were committed for the benefit of the Blood gangs. The shooting would raise the status of the participants within their gang. At Phipps's trial, Detective Tripp testified that, even if the victim was not a gang member, the shooting would nevertheless benefit the gang, since it showed that the gang was willing to venture into rival gang territory to commit a homicide.
Defense Evidence
Neither Kamack nor Phipps presented evidence in his defense.
DISCUSSION
This section corresponds to Kamack's argument No. I and Phipps's argument No. IV.
A. Argument
Kamack contends that the trial court erred in admitting his statements in the jailhouse recording that they "'should have, (inaudible), soon as we got that first "CK" instead of trying to go on another one.'" The trial court should not have admitted Byrd's statement that they "'should never try to get another CK'" but were "'trying to get two in one night'" and Phipps's reply that that "'would'a been nice.'" The statements were inadmissible under Evidence Code section 1101, subdivision (a) because they implicated Kamack in a second uncharged homicide or attempted homicide that did not occur.
In a related argument, Phipps contends that his trial counsel was ineffective in allowing the prosecution to admit the jailhouse recording without objection or requesting a hearing under Evidence Code section 402 or a limiting instruction.
B. Relevant Authority
The admissibility of evidence of prior misconduct depends upon "(1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence." (People v. Thompson (1980) 27 Cal.3d 303, 315, italics in original, overruled on other grounds by People v. Rowland (1992) 4 Cal.4th 238, 260.) One of the policy considerations inherent in the determination of whether other crimes evidence is admissible is found in Evidence Code section 1101. Subdivision (a) of the statute provides: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." Evidence Code section 1101, subdivision (b) provides an exception to this rule as follows: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act."
"There is no fixed category of mutually exclusive exceptions; i.e., intent, common plan, identity, etc., are merely illustrative of the types of relevant facts in proof of which other crimes may be shown as circumstantial evidence." (1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 75, p. 411.) Other crimes or acts are admissible to prove other than criminal disposition whether the uncharged acts were prior or subsequent in time to the charged offense. (See, e.g., People v. Hill (1971) 19 Cal.App.3d 306, 319-320 [evidence of defendant's subsequent narcotics offense admissible to show "guilty knowledge, motive, intent or presence of common scheme and design" where defendant's intent to sell drugs was at issue].)
Evidence Code section 352 provides that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
C. Proceedings Below
At Kamack's first trial, his counsel objected to some portions of the secretly recorded conversation among Kamack, Byrd, and Phipps. Counsel objected to the jury hearing Kamack saying, "'We should have, (inaudible), soon as we got that first 'CK' instead of trying to go on another one.'" Counsel further objected to a dialogue between Byrd and Phipps on the same occasion in Kamack's presence. Phipps said, "'Bloods. Niggers ain't tripping. Do my thing, (inaudible).'" . . . "'Fuckin Shit."' . . . Byrd said, "'I know I should never try to get another CK.'" Phipps said: "'Should adjust, (inaudible).'" Then the next objectionable portion occurred when Byrd said, "But I was trying to be greedy. I was trying to get two in one night." Phipps then said, "That would have been nice." Byrd said, "My bad."
Defense counsel asked that these statements not be admitted because the first one implied that Kamack was involved in another killing before Davis's. And the second conversation between Byrd and Phipps implied that they and Kamack were involved in multiple attempts or shootings that night even though there was no indication that was true.
Based on trial counsel's argument, we reject respondent's assertion that the issue of admission of these statements was forfeited by failure to object on the same basis at trial as on appeal.
In response to counsel's argument, the trial court said that the statements arguably indicated, based on the context, that the three of them were caught and they should have just left it as it was without trying to go on another one, which implied that Kamack was present at the shooting at issue. Defense counsel replied that she had not interpreted the statements to mean that the shooting of Davis was the first, and the prosecutor stated that her reading was similar to the court's but that either meaning was possible. The prosecutor did not intend to argue that the three men committed another murder that night. She might argue that they were still in the neighborhood seeking to do another murder. The trial court ruled that, in light of the context, it was denying defense counsel's motion to exclude the statements. The statements were admissible because they showed Kamack knew something about the murder at issue. Counsel also argued that the statements were inadmissible hearsay because it was being offered for the truth of the matter. The trial court denied the motion.
Prior to Kamack's retrial, his attorney wished to clarify whether the trial court would make the same rulings on the Evidence Code section 402 issues (such as the holding cell recordings) as it had done in the first trial. The trial court replied, "As far as I'm concerned, the rulings stand." Kamack's counsel asked the prosecutor whether she would use the same transcripts for the recordings, and the prosecutor confirmed she would. Defense counsel again clarified that it was her understanding that the court was making the same rulings over again. She later reiterated that she was making the same objections as in the first trial and was not forfeiting the issue for appeal.
D. Evidence Properly Admitted
We believe Kamack's argument is without merit. Kamack argues that the statements had limited probative value and led to the impermissible inference that he was criminally disposed toward committing murder under Evidence Code section 1101, subdivision (a). First, Kamack argues, there was no evidence that in fact another murder occurred that night at the hands of Kamack or the alleged co-perpetrators. Furthermore, the trial court did not admit the evidence as relevant to motive, identity, opportunity, plan, or absence of mistake, or modus operandi. Merely because the trial court interpreted Byrd's statements as referring to an additional crime rather than a prior one was not a valid basis for admission, since the statements were subject to either interpretation, as the prosecutor acknowledged.
According to Kamack, the evidence was on the other hand highly prejudicial because it allowed the jury to infer that Kamack had already participated in another homicide or attempted homicide and that he therefore had committed the charged murder. Kamack claims the probative value of the evidence was clearly outweighed by a danger of undue prejudice.
We believe that the trial court correctly understood the statement by Kamack, in context with the statements by Byrd and Phipps, as referring to their greed in seeking out another CK after the shooting of Davis. The statement by Phipps especially, that it would have been "'nice'" to get two in one night makes this apparent. The trial court clearly found the evidence relevant to Kamack's knowledge under Evidence Code section 1101, subdivision (b).
Moreover, apart from the obvious relevance of the statements to such factors as knowledge, motive, or identity under Evidence Code section 1101, subdivision (b), the first statement, at a minimum, was admissible as a statement by Kamack, the defendant. (Evid. Code, § 1220.) "The statement of a party is the most straightforward of the hearsay exceptions. Simply stated, and as a general rule, if a party to a proceeding has made an out-of-court statement that is relevant and not excludable under Evidence Code section 352, the statement is admissible against that party declarant. 'The exception to the hearsay rule for statements of a party is sometimes referred to as the exception for admissions of a party. However, Evidence Code section 1220 covers all statements of a party, whether or not they might otherwise be characterized as admissions. [Citations.]' [Citation.]" (People v. Castille (2005) 129 Cal.App.4th 863, 875-876, fn. omitted.)
Evidence Code section 1220 provides in pertinent part: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, . . . ."
Additionally, the statements by Byrd and Phipps, which were contained on the same page of the transcript, fall under the hearsay exception for adoptive admissions. (Evid. Code, § 1221.) "The adoptive admissions exception generally permits hearsay to be admitted against a party, when that party has adopted it or agreed that a statement, originally made by someone else, is true. The statute contemplates either explicit acceptance of another's statement or acquiescence in its truth by silence, equivocal or evasive conduct." (People v. Castille, supra, 129 Cal.App.4th at p. 876, fn. omitted.) "The analytical basis for this exception is that the adopting party makes the statement his own by admitting its truth. The statement or conduct of the adopting party thus expresses the same statement made by the declarant. [Citation.]" (Ibid.)
Evidence Code section 1221 provides: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth."
Moreover, although the trial court admitted the statements only as evidence of Kamack's knowledge, which was proper under Evidence Code section 1101, subdivision (b), the statements were also relevant to intent, identity, and motive. Even if admitted for an incomplete or different reason, any ruling that is correct in law will be sustained "'"regardless of the considerations which may have moved the trial court to its conclusion." [Citation.]' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 976.)
Like the trial court, we do not believe the prejudicial effect of these statements outweighed their probative value. Kamack said that they "should have, (inaudible), soon as we got that first 'CK' instead of trying to go on another one." The most reasonable inference that may be drawn from the statement is not that Kamack participated in another murder that night, but rather that he was chastising himself about not getting out of the neighborhood after the crimes in the instant case. Moreover, all of Kamack's prejudice complaints refer only to the effect of other crimes evidence, whereas "[a]dmissions that tend to prove the declarant committed a charged offense . . . are not offered as other crimes evidence, and instead are offered simply as statements made by a defendant that in and of themselves tend to prove he committed a charged offense. Such statements are admissible to prove identity of the perpetrator . . . ." (People v. Robinson (2000) 85 Cal.App.4th 434, 445.) It was unnecessary that the trial court expressly state that it had weighed the evidence's prejudice against its probative value. (People v. Padilla (1995) 11 Cal.4th 891, 924 overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn.1.) The trial court could reasonably conclude the probative value of the evidence outweighed any prejudicial effect. Appellant has failed to demonstrate that the evidentiary rulings were arbitrary or capricious.
With respect to Phipps, his comment, "That would'a been nice" clearly was admissible as a statement by a party, an admission, and an adoptive admission. In any event, just as in Kamack's case, if the selected statements are considered other crimes evidence, it was properly admitted as relevant to knowledge, intent, motive, and identity, and its probative value far outweighed any prejudice. We therefore conclude that Phipps's counsel was not ineffective for failing to object to admission of the statements. Since an objection would have been ill-founded, Phipps's counsel's performance was not deficient, and his argument fails. (See People v. Thomas (1992) 2 Cal.4th 489, 531 [failure to make meritless objection is not ineffective assistance].)
With respect to any constitutional claims, the general rule remains that "'"the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice."' [Citations.]" (People v. Lawley (2002) 27 Cal.4th 102, 155; People v. Hall (1986) 41 Cal.3d 826, 834.) Moreover, since there were permissible inferences to be drawn from the statements, no due process violation can be found. (See People v. Steele (2002) 27 Cal.4th 1230, 1246.)
Finally, given the overwhelming evidence of Kamack's and Phipps's participation in Davis's shooting, any error in admitting the recorded statements was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [not reasonably probable a result more favorable to appellants would have occurred had the evidence been properly objected to and excluded].)
II. Counsel's Failure to Request a Limiting Instruction
A. Argument
Kamack argues that his trial counsel's failure to request that the jury be instructed it could not receive Kamack's, Byrd's, and Phipps's statements as evidence that Kamack was predisposed to committing homicides constituted ineffective assistance of counsel. Phipps also mentioned his counsel's failure to request a limiting instruction in his ineffective assistance argument, discussed ante. Kamack argues that the lack of such an instruction told jurors they should receive the evidence as evidence of predisposition to committing homicides, and there was no possible tactical basis for failing to request such an instruction.
Kamack argues that counsel's failure was compounded by her failure to object to the prosecutor's argument based on the statements. According to Kamack, other evidence substantiating the charges against Kamack was almost nonexistent. But for counsel's dereliction, the result of the trial would have been different.
B. Relevant Authority
The trial court generally need not give a limiting instruction in the absence of a request. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051; People v. Jennings (2000) 81 Cal.App.4th 1301, 1316.)
A criminal defendant has a state and federal constitutional right to the effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Pope (1979) 23 Cal.3d 412, 422, disapproved on another point in People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) In order to show ineffective assistance, petitioner has the burden of establishing that: (1) trial counsel's performance fell below prevailing professional standards of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the outcome of the case would have been different. (People v. Ledesma, supra, at pp. 216-218.) A reasonable probability is one "'sufficient to undermine confidence in the outcome.'" (Id. at p. 218, quoting Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).) A reviewing court need not assess the two factors of the inquiry in order, and if the record reveals that petitioner suffered no prejudice, we may decide the issue of ineffective assistance of counsel on that basis alone. (Strickland, supra, 466 U.S. at p. 697.)
"[W]here the record shows that counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed." (People v. Pope, supra, 23 Cal.3d at p. 425.) Tactical errors are generally not grounds for reversal. (People v. Jones (2003) 29 Cal.4th 1229, 1254), and actual prejudice must be shown (People v. Williams (1988) 44 Cal.3d 883, 937). This court reviews counsel's actions in the light of a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance. (People v. Thomas, supra, 2 Cal.4th at pp. 530-531.)
C. No Ineffective Assistance
We do not agree with Kamack (or Phipps) that his counsel was ineffective. As discussed in the previous section, the evidence at issue was properly admitted as an admission and as adoptive admissions on his part. Moreover, in the context of the three statements, one by each co-perpetrator, the statements did not refer to prior uncharged murders, as appellant chooses to interpret. This is especially clear given Phipps's statement that it would have been nice to go on another "CK." Under these circumstances, a limiting instruction was not appropriate, and counsel was not ineffective for failing to request one. Furthermore, referring to statements about uncharged misconduct would have drawn attention to the possibility that appellant sought to avoid, i.e., the inference that the trio had committed or was seeking to commit another crime that night. (See People v. Freeman (1994) 8 Cal.4th 450, 495; People v. Johnson (1993) 6 Cal.4th 1, 50.)
Furthermore, as we have previously observed, the rest of the evidence against appellants was overwhelming. Greer described and later identified Kamack's car, which was found in the area of the shooting minutes after it occurred. Kamack's cell phone records showed he was near the area of the shooting and tracked his movement to the location where he was stopped. The patrol car recording and the holding cell recording, even apart from the remarks Kamack considers other crimes evidence, were highly incriminating. Even if Kamack's or Phipps's trial counsel were deemed ineffective in failing to request some sort of limiting instruction, neither appellant was prejudiced under any standard. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.) Thus, the ineffective-assistance claim is without merit.
With respect to the prosecutor's argument, Kamack faults his attorney for failing to object to argument in which the prosecutor said that statements about "get[ting] a second CK" should be received as evidence of Kamack's guilt because these "were really significant statements" and "I mean how much more evidence could we get from them in a jail recording? That's a great piece of evidence." Given the fact that the evidence was properly admitted, as discussed ante, trial counsel cannot be faulted for failing to object to this legitimate use of the jailhouse recordings in argument. (See People v. Price (1991) 1 Cal.4th 324, 387 [counsel is not obliged to make futile objections].) "A prosecutor has a right to state his views and his beliefs and convictions as to what the evidence establishes and to urge that the evidence convinces his mind or is conclusive of the guilt of the defendant." (People v. Head (1952) 108 Cal.App.2d 734, 737-738; see People v. Sims (1993) 5 Cal.4th 405, 463, disapproved on another point in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032.) "A mere failure to object to argument seldom establishes counsel's incompetence." (People v. Thomas, supra, 2 Cal.4th at p. 531.) We conclude that Kamack's counsel was not ineffective, and he suffered no prejudice from the omissions of which he complains. By the same reasoning, Phipps's counsel was not ineffective.
III. Kill Zone Instruction
A. Argument
Phipps contends that the trial court erred in instructing the jury with CALCRIM No. 600 on the "kill zone" and concurrent intent with respect to the attempted murder of Deayon. He claims that there was no evidence that a "kill zone" was established, and the manner of the attack did not show an intent to kill the primary target by killing everyone in the zone. The instruction unconstitutionally reduced the prosecution's burden to prove intent to kill. Phipps argues that the reading of the instruction allowed the prosecution to argue a false theory to the jury whereby there was a transfer of the intent to kill Davis to an intent to kill Deayon, even though the intent to kill her did not exist. Kamack, whose jury was instructed on concurrent intent with CALJIC No. 8.66.1, seeks to join Phipps in this argument.
At Phipps's trial, CALCRIM No. 600, the instruction on attempted murder, was read in pertinent part as follows: "A person may intend to kill a specific victim or victims, and at the same time intend to kill anyone in a particular zone of harm or, quote, kill zone, unquote. In order to convict the defendant of the attempted murder of Adriel Deayon, the People must prove the defendant not only intended to kill Joshua Davis, but also either intended to kill Joshua Davis, or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Joshua Davis by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Adriel Deayon."
At Kamack's trial, the trial court read CALJIC No. 8.66.1 on attempted murder— concurrent intent as follows: "A person who primarily intends to kill one person may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the 'kill zone.' The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in the victim's vicinity. Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a 'kill zone' or 'zone of risk' is an issue to be decided by you. "
After both appellants filed their opening briefs, Kamack filed a supplemental opening brief consisting of one sentence in which he joined in the arguments set forth in the briefs filed by Phipps. Kamack and Phipps underwent separate trials, however, and the jury instructions given in each trial were different, as were the prosecutors' arguments. Phipps's arguments on the "kill zone" instruction and his related prosecutorial misconduct and ineffective assistance counsel issues cannot, therefore, be adopted by Kamack except in broad terms. Kamack must bear the burden of demonstrating error and prejudice in his separate trial. (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) To the extent Kamack may legitimately make the same arguments as Phipps, our conclusions apply equally to Kamack.
B. Relevant Authority
A "defendant may be convicted of the attempted murders of any within the kill zone, although on a concurrent, not transferred, intent theory." (People v. Bland (2002) 28 Cal.4th 313, 331 (Bland).) "The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them." (Id. at p. 329.) Concurrent intent exists "'when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. . . . Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.'" (Id. at pp. 329-330.)
Purportedly erroneous instructions are reviewed in the context of the entire charge to determine whether it is reasonably likely the jury misconstrued or misapplied the challenged instruction. (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) The concept of a kill zone "'is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.' [Citations.]" (People v. Campos (2007) 156 Cal.App.4th 1228, 1243 (Campos).)
C. Kill Zone Instruction Proper
At the outset, it is worthy of note that defense counsel did not object to the trial court's reading of CALCRIM No. 600, nor did he request clarifying language for that instruction or any other. As a result, Phipps's complaints about CALCRIM No. 600 are forfeited on appeal. (Campos, supra, 156 Cal.App.4th at p. 1236.) In any event, we conclude that his argument is without merit.
Phipps contends that, in order for the "kill zone" theory to apply, the intent to kill others must be concurrent with the intent to kill the primary target, and he asserts that this cannot be said of the gunfire directed at Davis. He points out that there were three bullet wounds to Davis, but two of the bullets exited his body and a bullet recovered from Deayon's car door ostensibly went through Davis and hit the door. According to Phipps, that single bullet is the basis of the prosecution theory for the attempted murder of Deayon. Phipps argues that shooting at the more distant person (Deayon), however, was not necessary in order to kill Davis, who was closer. Phipps distinguishes his case from Bland, and asserts that his is not a classic "kill zone" scenario. CALCRIM No. 600 was therefore superfluous and misleading on the issue of intent.
Contrary to Phipps's assertions, the fact that Davis was close to Deayon and that the gunfire did not consist of a spray of bullets, did not obviate the "kill zone" theory as a viable prosecution theory of attempted murder. Case law is to the contrary. Although there was no "kill zone" theory employed by the prosecution in People v. Smith (2005) 37 Cal.4th 733 (Smith), our Supreme Court recognized that evidence that two victims who are seated in a vehicle, "one behind the other, with each directly in [the defendant's] line of fire, can support an inference that [the defendant] acted with intent to kill both. [Citations.]" (Id. at p. 743.) "[T]he very act of firing a weapon" toward a victim at close range "'"in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill."'" (Id. at p. 742, quoting People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 (Chinchilla).) Smith concluded there was evidentiary support for finding two separate or concurrent intents to kill for two attempted murders due to the physical closeness of the victims in that case. (Smith, at p. 743.) In Chinchilla as well, the court affirmed two convictions of attempted murder based on the firing of a single bullet at two police officers who were crouched, one behind the other, in the shooter's line of fire. (Chincilla, supra, at p. 691.) In Bland the California Supreme Court affirmed one completed and two attempted murder convictions where the defendant fired multiple shots into a car containing three people, killing one and wounding the other two. (Bland, supra, 28 Cal.4th at pp. 317, 318, 333.)
In this case, Davis was clearly speaking to someone in the parked car, since he was actually leaning into the car. Greer heard eight or nine gunshots, and Deayon heard three to five. It would have been reasonable for the jury to infer that, even if the shooter's primary target was Davis, his secondary target was the person inside the car, who was within the zone of risk. Thus, the "kill zone" instruction was properly read to the jury. The close proximity of the victims to each other when shots were fired from the Jaguar provided the jury with facts to define a narrow "kill zone" in this case. Therefore, even though there was evidence that the shots may have been intended for Davis, the jury could also reasonably find that appellant intended to kill Deayon inside the car if this was necessary to kill Davis, who was standing right next to the driver's side window. (See Smith, supra, 37 Cal.4th at p. 744; Bland, supra, 28 Cal.4th at pp. 330-331.)
Although Phipps claims CALCRIM No. 600 resulted in conviction on a theory of transferred intent, we disagree. The instruction told the jury that if it had "a reasonable doubt whether the defendant intended to kill Joshua Davis by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Adriel Deayon." The jury clearly found the required specific intent to kill Deayon in convicting Phipps of her attempted murder. Phipps's arguments are without merit.
Even if reading the "kill zone" instruction was erroneous, the error was harmless under any standard. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1157.) The evidence of Phipps's intent to kill his victims was overwhelming under the "kill zone" theory or otherwise. Phipps was driving around with fellow Bloods hunting for Crips. Phipps let loose a volley of gunshots even though Davis was standing at the window of a car speaking with someone in the driver's seat. One of his bullets hit the driver's door of Deayon's car. On this evidence the jury would almost certainly have found intent by Phipps to kill everyone in the direction of his fire, i.e., Deayon, in order to kill Davis. Moreover, the jury found that the attempted murder of Deayon was willful, deliberate and premeditated. This finding required the jury to conclude that defendant "intended to kill when he acted." (CALCRIM No. 601.) Phipps's arguments regarding CALCRIM No. 600 are without merit, and his rights to a fair jury trial and due process were not violated. By the same reasoning, the trial court did not err by reading CALJIC No.8.66.1 to Kamack's jury.
IV. Prosecutor's Argument on "Kill Zone" As Misconduct
A. Argument
Phipps contends that the prosecution improperly argued that, because Phipps did not care that Deayon was behind Davis and did not care if he hit someone else, Deayon was in a "kill zone," which meant that the prosecution did not have to prove Phipps meant to kill Deayon. This trivialized the requirement of concurrent intent to kill everyone in the zone and the specific intent to kill Deayon.
B. Proceedings Below
With respect to the attempted murder of Deayon, the prosecutor argued as follows: "All of those shots were directly into her driver's door. She was seated in the driver's seat. We actually know that one bullet went into that door. And but for the door, would have gone through, and gone directly into where she was seated. You have the pictures that show the rod. So the law says that that is an attempted murder. But for the door and Mr. Davis, she would have been hit. And she would have died. The second element is that the defendant intended to kill that person. Now, attempted murder talks about a couple other things. One is direct step. Which means beyond planning and preparation. In this case, we know it went beyond planning and preparation because he actually pulled the trigger. Talks about something called a kill zone. That's pretty much what this is in this case. What that means is that we don't have to prove, you don't have to find that they knew she was there and they meant to kill her. All you have to find is that at the time that this defendant pulled the trigger to kill Joshua Davis, that he didn't care if someone else was behind him. He didn't care if he hit someone else. That he wanted so badly to kill Joshua Davis, he was willing to kill anyone else in the vicinity where those bullets flew. We know there were at least three shots. And according to Trevon Greer, there could have been up to eight or nine. So he fired eight, nine shots in an area not caring who else he hit. That's what kill zone is. A person may intend to kill a specific victim, and at the same time intend to kill anyone within a particular zone of harm. Zone of harm is called the kill zone. And it is intent to kill anyone within the kill zone. I'll give you an example. You want to kill me. And I'm standing in front of Detective Guzman. You raise your gun, and you open fire. You fire once, you fire twice, you fire three times. Maybe eight or nine times. You're intending to kill me, but Detective Guzman is in the kill zone. You can just as easily kill him. That is an attempted murder against Detective Guzman. As well as murder against me, if you kill me."
C. Relevant Authority
"'The applicable federal and state standards regarding prosecutorial misconduct are well established. "'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."'" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'" [Citation.]'" (People v. Ochoa (1998) 19 Cal.4th 353, 427.)
"To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]" (People v. Frye, supra, 18 Cal.4th at p. 970.)
D. No Misconduct
We first observe that defense counsel did not object on the ground of prosecutorial misconduct below. It is well settled that, in order to preserve on appeal the issue of prosecutorial misconduct, the defendant generally must object at the time the misconduct occurs and request a curative admonition to the jury. (People v. Avena (1996) 13 Cal.4th 394, 442.) "The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice." (People v. Williams (1997) 16 Cal.4th 153, 254.) We address the merits nevertheless, since Phipps separately argues ineffective assistance of counsel for failure to object to this alleged prosecutorial misconduct.
Phipps relies on People v. Anzalone (2006) 141 Cal.App.4th 380 (Anzalone), where the court reversed the defendant's conviction because his trial counsel failed to object to a misleading prosecutorial argument on the "kill zone" theory. (Id. at pp. 396397.) The instant case is distinguishable from Anzalone. In that case, the court held, "an attempted murder is not committed as to all persons in a group simply because a gunshot is fired indiscriminately at them. The prosecutor's argument incorrectly suggests that a defendant may be found guilty of the attempted murder of someone he does not intend to kill simply because the victim is in some undefined zone of danger. In fact, to be found guilty of attempted murder, the defendant must either have intended to kill a particular individual or individuals or the nature of his attack must be such that it is reasonable to infer that the defendant intended to kill everyone in a particular location as the means to some other end, e.g., killing some particular person. [¶] The prosecutor's argument concerning zone of danger was erroneous and misleading." (Id. at pp. 392-393.) In Anzalone, the prosecutor had argued that four attempted murder counts could be based on the shooter firing two gunshots indiscriminately into a crowd, which meant that everyone in the zone of danger qualified as an attempted murder victim. (Id. at p. 391.) The court found that the error in the prosecutor's argument was prejudicial because the jurors were not instructed with CALJIC No. 8.66.1, which would have informed them of the proper application of a "kill zone" theory. (Anzalone, supra, at p. 392.)
As we have stated, the jury here was properly instructed on application of the kill zone theory. Moreover, the prosecutor's argument was not entirely as Phipps portrays. Although the prosecutor may have been careless in her language at first, the final portion of her "kill zone" argument told the jury that "[a] person may intend to kill a specific victim, and at the same time intend to kill anyone within a particular zone of harm. [A] zone of harm is called the kill zone. And it is intent to kill anyone within the kill zone." We perceive no prosecutorial misconduct.
V. Counsel's Failure to Object to Prosecutor's Argument on "Kill Zone" and to Request Clarifying Instructions on "Kill Zone"
A. Argument
Phipps again argues that his case is similar to Anzalone, where the reviewing court reversed the defendant's conviction and found counsel ineffective for failing to object to the prosecutor's kill zone argument.
B. No Ineffective Assistance
As stated previously, in order to show ineffective assistance, petitioner has the burden of establishing that: (1) trial counsel's performance fell below prevailing professional standards of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the outcome of the case would have been different. (People v. Ledesma, supra, 43 Cal.3d 171, 216-218.) A reviewing court need not assess the two factors of the inquiry in order, and if the record reveals that petitioner suffered no prejudice, we may decide the issue of ineffective assistance of counsel on that basis alone. (Strickland, supra, 466 U.S. at p. 697.)
As we discussed ante, the prosecutor's argument regarding the "kill zone" theory did not constitute misconduct. In addition, in Phipps's case, the jury was properly instructed on the "kill zone" theory, unlike the jury in Anzalone. We see no merit in the ineffective assistance claim. As previously noted, counsel's failure to object to argument rarely establishes incompetence. (People v. Thomas, supra, 2 Cal.4th at p. 531.)
We likewise see no merit in Phipps's claim that his counsel was ineffective for not requesting a clarifying instruction on the "kill zone" theory. When we review such a contention, the inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution. (People v. Smithey (1999) 20 Cal.4th 936, 963.) CALCRIM No. 600 was neither misleading nor ambiguous. Moreover, in addition to CALCRIM No. 600, the trial court instructed the jurors regarding specific intent with CALCRIM No. 251, as follows: "The crimes and other allegations charged in this case require proof of the union or joint operation of act and wrongful intent. For you to find a person guilty of the crimes and allegations in this case, that person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with a specific intent or mental state. The specific . . . act and the specific intent or mental state required are explained in the instruction for that crime or allegation." CALCRIM No. 600 told the jury that it must find as an element of the offense that "The defendant intended to kill that person." There is no reasonable possibility the jurors were misled because of a lack of clarifying instructions on the "kill zone" theory and applied the instruction in a manner prejudicial to Phipps. Phipps's arguments regarding ineffective assistance of counsel are without merit.
VI. Sufficiency of the Evidence That Attempted Murder was Willful, Deliberate and Premeditated
A. Argument
Phipps contends there was insufficient evidence in support of the finding that the attempted murder was willful, deliberate and premeditated. Therefore, Phipps maintains, the finding was in violation of due process, and the conviction should be reduced to unpremeditated attempted murder.
B. Relevant Authority
"We do not distinguish between attempted murder and completed first degree murder for purposes of determining whether there is sufficient evidence of premeditation and deliberation. [Citations.]" (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462-1463, fn. 8.) "Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate [attempted] murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation . . . . Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.]" (People v. Perez (1992) 2 Cal.4th 1117, 1124 (Perez).)
There are three basic, but not exhaustive, categories of evidence that will sustain a finding of premeditation and deliberation: (1) planning activity; (2) motive; and (3) manner of the killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson); see also Perez, supra, 2 Cal.4th at p. 1125.) All of these factors need not be present to sustain a finding of premeditation and deliberation. (People v. Pride (1992) 3 Cal.4th 195, 247.) The Anderson factors are merely categories of evidence to be used as a framework in the analysis of the sufficiency of the evidence of premeditation and deliberation. (See Perez, supra, at p. 1125; People v. Thomas, supra, 2 Cal.4th at p. 517.)
In reviewing the sufficiency of the evidence of premeditation and deliberation, we do not substitute our judgment for that of the jury. Rather, we draw all reasonable inferences in support of the verdict and affirm the judgment if any rational jury could find premeditation and deliberation beyond a reasonable doubt. (People v. Pride, supra, 3 Cal.4th at p. 247; Perez, supra, 2 Cal.4th at p. 1124.) Premeditation and deliberation may be shown by circumstantial evidence. (Anderson, supra, 70 Cal.2d at p. 25.)
C. Evidence Sufficient
According to Phipps, consideration of the Anderson factors yields the conclusion that the evidence in the instant case does not support the inference that the attempted murder of Daeyon was committed with a preexisting reflection and a weighing of considerations. He claims there was no evidence of planning or motive, and the manner of killing did not indicate a preconceived design. We disagree.
The evidence in this case was consistent with all three of the Anderson factors. There was planning activity in that the three men brought along a firearm and a pair of gloves. They drove with their headlights off in order to retain the element of surprise. There was also evidence of motive. The gang expert's testimony provided evidence that Kamack, Phipps, and Byrd drove into rival gang territory in order to murder a rival gang member for the benefit of their gang and their status in the gang. The manner of killing, with a gloved shooter sitting prepared in the backseat, shows a preconceived design. In addition, the shooting of four to nine bullets in the direction of a person speaking to someone in the front seat of a car shows a deliberate intent to kill both the person outside the car and the person inside the car. (See Anderson, supra, 70 Cal.2d at pp. 26-27; People v. Morris (1988) 46 Cal.3d 1, 23.) Phipps's arguments are without merit. To the extent Kamack joins in this argument, he also fails.
VII. Staying of Surplus Firearm Enhancements
Phipps contend that the surplus section 12022.53 firearm-use allegations should have been stayed under the authority of section 12022.53, subdivision (f) rather than under section 654. Kamack presumably joins in this argument. Appellants are correct. The trial court properly stayed the remaining section 12022.53 enhancements, but it was incorrect to stay them pursuant to section 654. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130 (Gonzalez).) Staying the punishments for all of the prohibited firearm enhancements is proper under the statutory analysis set forth in Gonzalez, which held that "[w]hen the word 'impose' in section 12022.53(f) is properly understood as shorthand to mean impose and then execute, section 12022.53 allows for the same resolution of the prohibited enhancements under sections 12022.53 and 12022.5, namely, that they must be imposed and then stayed." (Gonzalez, supra, at pp. 1129-1130.) Therefore, the abstracts of judgment must be amended to remove references to section 654 in this regard.
Although Kamack did not raise this issue on appeal or cite to the record, imposition of a sentence not authorized by law is subject to judicial correction whenever the error comes to the attention of the trial court or reviewing court. (People v. Panizzon (1996) 13 Cal.4th 68, 88.)
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VIII. Failure to Strike Gang Enhancements to Life Terms
Kamack and Phipps argue that the trial court erred in imposing and staying determinate terms for the gang enhancements that were alleged and found true in the murder and attempted murder counts.
Section 186.22, subdivision (b)(1) provides that, except as provided in paragraphs (4) and (5) a person convicted of a felony committed "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall . . . in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows : [¶] . . . [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years."
Section 186.22, subdivision (b)(5), however, provides that, "Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." When "an indeterminate life term is imposed, then the 15-year minimum parole eligibility applies rather than a determinate, consecutive enhancement." (People v. Harper (2003) 109 Cal.App.4th 520, 525.) "„[N]othing in Penal Code section 186.22, subdivision (b)(5) suggests this extended parole eligibility limitation period should be combined with an additional determinate term."' (Ibid.; accord, People v. Lopez (2005) 34 Cal.4th 1002, 1007-1009.)
In this case, Kamack and Phipps received 25-year enhancements under section 12022.53, subdivision (d) for Phipps's discharge of a firearm in both counts. Kamack's enhancements were imposed pursuant to section 12022.53, subdivisions (d) and (e)(1), since he did not personally shoot the firearm—rather, a principal (Phipps) did so in a gang-related shooting. (§ 12022.53, subd. (e)(1)(A), (B).) Section 12022.53, subdivision (e)(2) provides that "[a]n enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense." Since Kamack did not personally use a firearm, the 15-year minimum parole eligibility requirement of section 186.22, subdivision (b)(5) should have been stayed with respect to him in both counts. (See People v. Sinclair (2008) 166 Cal.App.4th 848, 853-854; People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282.) Phipps's jury found that he personally discharged a firearm in the murder and attempted murder counts. Therefore, the 15-year parole eligibility should be imposed with respect to him. (People v. Brookfield (2009) 47 Cal.4th 583, 593-594 .)
IX. Cumulative Error
Phipps contends that the cumulative effect of the errors denied him his state and federal constitutional rights to due process and a fair trial. According to Phipps, the aggregate prejudicial effect of the errors was greater than the sum of the prejudice of each error standing alone. Kamack presumably wishes to join in this argument.
Our review of the record assures us that appellant received due process and a fair trial. (See People v. Ashmus (1991) 54 Cal.3d 932, 1006.) Whether considered individually or for their cumulative effect, the errors alleged did not affect the trial process, deprive appellant of his constitutional rights, or otherwise accrue to his detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo (1993) 6 Cal.4th 585, 637.) There has been no showing of cumulative prejudicial error of a degree sufficient to permit reversal. As the California Supreme Court has stated, "A defendant is entitled to a fair trial, not a perfect one." (People v. Mincey (1992) 2 Cal.4th 408, 454.) We reject the contentions of cumulative error.
DISPOSITION
The judgments are modified to strike the 10-year gang enhancements on both counts (murder and attempted murder) for appellants Kamack and Phipps. In Phipps's case, a 15-year minimum parole eligibility date is imposed instead of the 10-year gang enhancement. In all other respects, the judgments are affirmed. The superior court is directed to correct the minute orders and abstracts of judgment to reflect that the surplus firearm enhancements were stayed pursuant to section 12022.53 and that the 10-year gang enhancements are stricken. The superior court is directed to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________________, P. J.
BOREN
We concur:
________________________________, J.
DOI TODD
________________________________, J.
ASHMANN-GERST