Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF095149C
CANTIL-SAKAUYE, J.
Defendant Vannak Prach was convicted by a jury of first degree murder (Pen. Code, § 187, subd. (a) - count 1), two counts of shooting a firearm from a motor vehicle (§ 12034, subd. (c) - counts 2 & 6), one count of shooting at an occupied dwelling (§ 246 - count 3), one count of conspiracy to commit murder (§ 182, subd. (a)(1) - count 4), one count of attempted murder (§ 664/187, subd. (a) - count 5), and one count of being an active participant in a criminal street gang. (§ 186.22, subd. (a) - count 7.) The jury found true a gang special circumstance as to the first degree murder. (§ 190.2, subd. (a)(22).) The jury found true allegations that a principal intentionally and personally discharged a firearm causing death or great bodily injury (§ 12022.53, subds. (d) & (e)) as to the murder count (count 1), the two counts of shooting a firearm from a motor vehicle (counts 2 & 6), and the count of attempted murder (count 5). The jury found true allegations that the murder (count 1), the shootings from a motor vehicle (counts 2 & 6), the shooting at an occupied dwelling (count 3), and the attempted murder (count 5) were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
Hereafter, undesignated statutory references are to the Penal Code.
Defendant was sentenced to state prison for life without the possibility of parole for count 1, the first degree murder with the gang special circumstance, plus a term of 25 years to life for the section 12022.53 enhancement as to that count. The trial court struck the section 186.22, subdivision (b)(1) enhancement as to count 1. Defendant was sentenced to state prison for 15 years to life for count 5, the attempted murder, plus a term of 25 years to life for the section 12022.53 enhancement as to that count. In addition, the trial court imposed a minimum parole eligibility of 15 years on defendant’s life sentence pursuant to section 186.22, subdivision (b)(5). Sentences were imposed, but stayed under section 654, on the remaining counts and all other enhancements except the criminal street gang enhancement on count 3, which was stricken by the trial court.
On appeal defendant claims (1) the trial court erroneously discharged the holdout juror during deliberations, (2) the trial court erroneously failed to properly clarify the premeditation instructions in reply to a jury question, (3) the gang special circumstance applies only to the actual killer and not an aider and abettor, (4) the trial court erroneously refused the defense request for intoxication instructions as to the actual shooters, (5) the parole revocation fine must be stricken, and (6) the criminal street gang enhancements must be stricken for counts 2, 5, and 6. We find merit in only the last two contentions of defendant. We shall order the judgment modified to strike the parole revocation fine and the criminal street gang enhancements for counts 2, 5, and 6. As so modified, we shall affirm the judgment.
FACTUAL BACKGROUND
We briefly summarize the underlying facts, viewing the evidence as a whole and in the light most favorable to the prosecution. (People v. Staten (2000) 24 Cal.4th 434, 460.)
Late on the night of February 20, 2005, several members of the Tiny Rascal Gangsters (TRG) returned to the Stockton home of member Chan Hong after attending a party. Defendant, an older documented member of TRG, was among the gang members who arrived at Hong’s house. They sat around in the garage playing video games and talking. They discussed doing a drive-by shooting and catching someone “slippin’,” meaning to go out and look for unprotected rival gang members who are out on the streets. Defendant said: “Let’s roll.” Eight gang members left Hong’s house in two vehicles. Defendant drove his silver mini-van and Hong followed, driving his green Camaro.
Gang expert Stockton Police Detective Kathyrn Nance testified TRG is a nationwide gang, the largest Southeast Asian gang in the United States. The color gray, as well as various symbols, are used by the TRG to represent the gang. TRG’s primary activities are shootings, homicides, attempted homicides, assaults with deadly weapons, and shooting at houses. TRG members have been convicted of murder, attempted murder, shooting at inhabited dwellings, shooting from vehicles, possessing narcotics for sale, and stealing vehicles.
A little after midnight on the morning of February 21, defendant and Hong drove their vehicles to the Astor Drive area of north Stockton, an area claimed by the Asian Street Walkers (ASW) gang, an enemy gang to the TRG. Defendant and Hong drove past a young man, Nath Sok, on a bicycle. Sok was a documented ASW gang member. Defendant and Hong made U-turns and came back to stop near Sok. Defendant said something casually to Sok, who responded more boisterously. Several men from the van and car got out. A witness saw several of these men fire guns numerous times at Sok until Sok looked like a “pile of rags.” The men calmly got back in their vehicles and cruised slowly away.
About a half hour past midnight, Stockton police officers responded to a report of a shooting on Astor Drive. When they arrived, they found Sok lying dead on the lawn next to the bicycle. He had been shot in the neck, head, and groin. Six .40-caliber shell casings were found; five in the middle of the street and one on the sidewalk next to the bike. Bullet holes were found in an adjacent house and carport, as well as in a bedroom wall inside the house.
Meanwhile, defendant drove his van to Jill Circle, another area of north Stockton. The Jill Circle area is known to be frequented by members of the Loc Town Crips (LTC) and Asian Boyz (ABZ), also enemies of the TRG. Chhithdra Or, an LTC gang member, saw a van, later identified as defendant’s van, slowly drive down the street. Or saw the van’s slider door open, revealing TRG gang member Reachhetra Pheng holding a gun. Or saw sparks from the slider door of the van and Savoeun Yin, a documented member of the ABZ gang, who Or had been talking to on the street a few minutes earlier, was shot. Yin was shot in his hand, resulting in a crushed finger that had to be amputated, and in the scrotum, an injury that required him to learn to walk again. The van drove off. Cartridge cases found at Jill Circle and those from Astor Drive were examined and determined to have been fired from the same gun.
Police investigation led them to Hong and several of his TRG gang friends, who eventually identified defendant as the driver of the van involved in both shootings. According to Detective Nance, the two shootings were done for the benefit of a criminal street gang. Defendant was a documented TRG member and according to Nance, he was an active member as of the date of the shootings. Nance testified non-gang members would not be allowed to be involved in a drive-by shooting. She also opined the driver has a very important role in a drive-by shooting.
Defendant claimed he was not the driver of his van that night.
DISCUSSION
I.
The Trial Court Did Not Err In Discharging Juror No. 4 During Deliberations
A. Background Information
The jury began deliberating on the afternoon of December 12, 2006, and continued on December 13, 14, 15, 19, and 20. They periodically asked questions, requested read back of testimony or requested that they be allowed to review videotape exhibits. On the morning of December 21, the jury foreperson passed the trial court a note asking to speak with the court privately. The court and the parties met with the foreperson outside the presence of the rest of the jury. The foreperson described a problem with Juror No. 4.
According to the foreperson, Juror No. 4 “started out our deliberations the very first day, when she walked in, she said, ‘I beat the IRS and all their lawyers. I beat seven lawyers and took all my grandchildren away from my alcoholic children. And you don’t fuck with this bitch.’” Juror No. 4 made the statement in a bragging fashion. The foreperson then said: “She is bipolar, we believe. We believe that she’s psychotic. She jumps up and down. She screams at everybody. She will go off into the bathroom and stay there for several minutes. And then she’ll turn around and just smile sweetly as if nothing happened. [¶] She told us in the beginning that, ‘This is my opinion and nothing you say can change my mind. You can talk until you’re blue in the face, but nothing will change my mind.’ [¶] We’ve spent all of this time showing her evidence after evidence. It’s been eleven jurors to this one person. And people have been patient. Nobody has been yelling, nobody has been swearing, except this one person. [¶] And, I’m not bringing this to the Court because I differ with her opinion. I’m bringing this to the Court because of her temper tantrums and because of -- of the way that she’s treating other jurors. She threatened this morning to change -- she’s actually threatened that, ‘I will change everything else that we’ve done.’ She said, ‘I will call in sick and let you get another juror and start all over again with an alternate.’ She’s made several threats of this type. [¶] I don’t know where to go from here.”
When asked by the trial court if Juror No. 4 had participated in deliberations, the foreperson responded: “She doesn’t participate. What she does is she sits there and listens and doesn’t say a word. Then when she talks and people raise their hands to respond, she shuts everybody off and she yells at them and said [sic], ‘Now I’ve sat here and listened to you, so you sit and listen to me.’ And then she made the statement, she said, ‘This is what I feel and I don’t want any response from anybody. This is what I feel. And there’s -- and there’s nothing you can say to change my mind.’” She never considers other viewpoints.
The foreperson revealed the jury had reached verdicts on all but one count and that the foreperson had signed the verdict forms on the agreed counts in the presence of all of the jurors. Now Juror No. 4 was threatening to go back on those counts. According to the foreperson, “this morning it was really ugly. She just started yelling. And -- and I’m a pretty calm person and I finally just sat up and I said, ‘Would you please lower your voice, there’s no need to be shouting at people.’ [¶] And then she started yelling again that, ‘I won’t take these personal attacks.’ And there are not personal attacks, we are just trying to get her to listen to the evidence that the other eleven jurors can see.”
The foreperson was excused and the court discussed the situation with the parties. The prosecutor commented Juror No. 4 had not disclosed on her jury questionnaire any of her prior experiences with lawyers. Defense counsel noted the questionnaire asked: “Have you ever had a bad experience with any type of attorney?” Since Juror No. 4 claimed to have beaten the attorneys in the matters she brought up, defense counsel thought she might have considered her prior experiences as a good experience with attorneys. The parties and court agreed each juror should be questioned individually and privately.
Juror No. 1 indicated Juror No. 4 was being “very inconsistent.” She went “from one extreme to another emotionally.” She was “very angry” and “not willing to work with us.” The court pointed out there is a difference between someone who may not agree with other people’s opinions and someone who is not willing to engage in discussion about it. Juror No. 1 stated Juror No. 4 was not willing to discuss it.
Juror No. 2 described Juror No. 4 as “irrational.” She has “temper tantrums, three, four times a day.” Juror No. 2 felt Juror No. 4 had a “hidden agenda.” Juror No. 4 would not tie her opinions to the evidence.
Juror No. 3 thought Juror No. 4 was going from her personal thoughts, not the evidence. According to Juror No. 3, Juror No. 4 stands up and screams. Everybody tries to calm her down, but she won’t calm down. Juror No. 3 felt Juror No. 4 was participating in deliberation “to a certain point, and then we came to this point now.”
When she was questioned, Juror No. 4 felt she was following the court’s instructions to talk and deliberate, but to decide the case for yourself. She had “given her points and we are just in disagreement.” She suggested she was being personally attacked in deliberations and was suffering from physical effects of the stress. When the trial court brought up Juror No. 4’s jury questionnaire and whether she had prior dealings with attorneys or the court system, Juror No. 4 said she did when she was trying to get custody of her grandchildren, but the district attorney was not involved. Juror No. 4 represented she would be able to participate in deliberations with the other jurors. After Juror No. 4 left the room, the trial court noted for the record that she had become visibly upset during questioning, had started crying, and that the bailiff had provided her with tissues.
Juror No. 5 said Juror No. 4 was “not even considering, talking, looking, or going over [the evidence] again. It’s just what she thinks and that’s it.” As one of the undecided, Juror No. 5 made a list to help Juror No. 4 with her areas of uncertainty. Juror No. 5 suggested to Juror No. 4 that she needed to see why she was unsure. Then they could go back to consider the evidence. But Juror No. 4 kept saying “it doesn’t matter.” She was not willing to look at the evidence. She did not want to work anymore.
Juror No. 6 stated Juror No. 4 was very emotional and was basing her decisions on assumptions. She was not willing to look at the evidence. The jury had tried different approaches, at one point going around the table to give reasons for their decisions. When they came to Juror No. 4, she became confrontational and accused them of attacking her. She shut down and refused to talk about it.
Juror No. 7 noted on the first day of deliberations, as they were walking in, Juror No. 4 made an announcement to the rest of the jury. Juror No. 7 sat next to her to act as a calming presence, but Juror No. 4 went from highs to lows, screaming to crying, temper tantrums. Juror No. 7 said she felt Juror No. 4 exhibited very “manipulative behavior,” that she has “an agenda to get her way no matter what.” Juror No. 7 felt Juror No. 4 was “trying to manipulate the process.” Juror No. 7 gave an example. A few days earlier Juror No. 4 wanted to be out by noon in order to do some Christmas shopping. In light of that, she made some suggestions that the other jurors went along with, but when they were stuck on one point, she took the attitude that “I did all of this for you, you need to do this for me.” Juror No. 7 felt it should not be about “give and take,” but about looking at the evidence. Juror No. 7 said Juror No. 4 had always participated in deliberations, but when she states a fact, she won’t let anyone question or present another side of it. Once she states her view, she doesn’t want to talk about it. She doesn’t want to participate. Juror No. 7 felt Juror No. 4 was refusing to deliberate.
Juror No. 9 indicated Juror No. 4 was discussing some of the evidence. She was, however, too emotional and did not treat the other jurors with respect. She did not seem able to back up her views with evidence.
Juror No. 10 felt that Juror No. 4 had no intention from the beginning to deliberate at all. When the jury was discussing things as a group, Juror No. 4 would turn her head and want no part of it. Juror No. 4 used foul language and threatened if they did not do what she wanted, she would change her vote on matters they had already decided. She told them when she got back in her seat, she would tell the judge she had changed her vote.
Juror No. 11 felt it was like being at a family gathering and one member of the family “wants to play the crazy hand.” Juror No. 11 felt Juror No. 4 had both short-term and long-term memory problems. According to Juror No. 11, Juror No. 4 “never had an open mind, ever.” Although Juror No. 4 would participate in some discussions, Juror No. 11 felt there was “something outside . . . this case” that had made Juror No. 4 sympathetic to one side. At this point, Juror No. 4 was not willing to deliberate.
Juror No. 12 said Juror No. 4 wanted the rest of the jurors to accept her opinion without being willing to explain why she feels that way or what evidence she is basing her view on. She was not exchanging thoughts and looking at the evidence, she was yelling, cussing, and having temper tantrums. She showed no willingness to discuss the evidence. Right from the beginning Juror No. 4 stated her opinion and told them she would not change her mind. Although there were a few days when she initially participated in discussions, the last few days she had been unwilling to do so.
After hearing from the jurors and discussing the situation with the parties, the trial court decided, over defense objection, to replace Juror No. 4 with an alternate. The trial court found Juror No. 4 was not “deliberating in a meaningful manner with her fellow jurors.” The trial court added, “as a side reason, [its] discomfort with [Juror No. 4] not being completely candid in her questionnaire, combined with the statements about the grandchildren, and Government attorneys, and so forth.” While “that alone would not be enough[,]” it was a factor the court considered in combination with her refusal to meaningfully deliberate.
B. Analysis
Defendant claims the trial court erred in discharging Juror No. 4 as the evidence does not support a finding that Juror No. 4 refused to deliberate; rather she simply disagreed with the other jurors on one count. Defendant contends the record does not support a finding that Juror No. 4 committed misconduct by failing to disclose her prior experience with attorneys and courts in her answers to the jury questionnaire. We conclude substantial evidence supports the trial court’s conclusion that Juror No. 4 was refusing to deliberate and therefore, the trial court did not abuse its discretion in discharging her and replacing her with an alternate.
“Pursuant to Penal Code section 1089 and Code of Civil Procedure section 233, ‘. . . the court, upon “good cause shown,” may discharge any juror “found to be unable to perform his duty” at any time during the trial. . . . The determination of “good cause” rests in the sound discretion of the court [citations], and the court’s finding thereof will be upheld if substantial evidence supports it [citation].’ [Citation.]” (People v. Thomas (1994) 26 Cal.App.4th 1328, 1332-1333; accord, People v. Holloway (2004) 33 Cal.4th 96, 124-125.) The juror’s inability to perform his or her functions must, however, appear in the record as a “demonstrable reality.” (People v. Cleveland (2001) 25 Cal.4th 466, 474 (Cleveland).)
A refusal to deliberate can constitute good cause warranting discharge of a juror. (Cleveland, supra, 25 Cal.4th at p. 475; People v. Thomas, supra, 26 Cal.App.4th at p. 1333.) “But caution must be exercised in determining whether a juror has refused to deliberate.” (Cleveland, supra, at p. 475.) “[A] court may not dismiss a juror during deliberations because that juror harbors doubts about the sufficiency of the prosecution’s evidence.” (Id. at p. 483.)
“A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views.” (Cleveland, supra, 25 Cal.4th at p. 485.)
Applying these principles, we conclude the record supports the trial court’s conclusion here that Juror No. 4 refused to deliberate.
According to the jury foreperson, Juror No. 4 announced her opinion “in the beginning” and told the rest of the jury that nothing they said would change her mind. Juror No. 10 said Juror No. 4 appeared to have no intention to deliberate “since the beginning[.]” Juror No. 12 said Juror No. 4 stated her opinion and told them she would not change her mind “right from the beginning[.]” Although Juror No. 4 remained silent while other jurors expressed their opinions and did express her own opinions, there was general consensus that she refused to discuss the basis for her opinions, the evidence, and the other jurors’ viewpoints. According to Juror No. 11, she “never had an open mind, ever.” The court pointed out there is a difference between someone who may not agree with other people’s opinions and someone who is not willing to engage in discussion about it. Juror No. 1 stated Juror No. 4 was not willing to discuss it.
Juror No. 4 was described as having a hidden agenda, as being manipulative, as trying to get her way no matter what, and as being sympathetic to one side based on something “outside this case[.]” Juror No. 10 described Juror No. 4 as turning her head away and wanting “no part of it” when there were group discussions. It appears Juror No. 4 inappropriately tried to bargain her vote on some counts for agreement by the rest of the jurors on what she wanted. Juror No. 4 threatened if they did not do what she wanted, she would change her vote on matters they had already decided. From the comment that when she got back in her seat, Juror No. 4 would tell the judge she had changed her vote, it appears Juror No. 4 even threatened to revoke her vote when the jury was polled after they returned their verdicts. Juror No. 4 threw temper tantrums, used foul language, and appeared to have memory problems. This is more than merely being difficult or coming to a point where further discussion will not alter the juror’s opinion of the evidence.
This case is not like People v. Bowers (2001) 87 Cal.App.4th 722. In Bowers, this court concluded the trial court erred when it discharged a juror during deliberations based on a finding of failure to deliberate. We stated that “[w]hile there was some evidence Juror No. 4 was inattentive at times during the deliberations and did not participate in the deliberations as fully as others, the record shows this conduct was a manifestation, effectively communicated to the other jurors, that he did not agree with their evaluation of the evidence--specifically, their credibility determinations.” (Id. at p. 730.) The record showed the juror had participated to some extent in the jury’s discussion, had expressed the reasons for his decision, and remained willing and able to vote concerning a verdict. Therefore, it was not possible to say the record showed a demonstrable reality that he was unable to perform as a juror. (Id. at p. 735.) We concluded the juror was excused without good cause. (Ibid.)
In contrast here, the questioning of the jurors revealed that from the beginning Juror No. 4 had expressed a fixed opinion which included credibility determinations that were based not on the evidence at trial, but on Juror No. 4’s hidden agenda, her personal thoughts, and sympathies to one side from something outside the case. Juror No. 4 refused to discuss or support her views. She reacted emotionally, even irrationally, when asked to explain her views. At one point she appeared willing to bargain her vote in order to get time for Christmas shopping. Later she threatened to change her votes in an apparent attempt to bully the other jurors into doing what she wanted. This conduct is not a manifestation of Juror No. 4’s divergent view of the evidence, but of Juror No. 4’s willingness to decide defendant’s guilt or innocence apart from the evidence and her refusal to deliberate about the evidence.
This case is more like People v. Thomas, supra, 26 Cal.App.4th 1328and People v. Feagin (1995) 34 Cal.App.4th 1427. In Thomas, the record indicated the juror “failed to perform his duty to deliberate before reaching his decision. The juror did not answer the questions posed to him by other jurors, did not sit at the table with the other jurors during deliberations, acted as if he had already made up his mind before hearing the whole case, and did not look at the two victims in the courtroom.” (Thomas, supra, at p. 1333.) In Feagin, the record showed the juror was not deliberating with the other jurors, was not explaining her viewpoints, brought up issues of race not based on the evidence, and had indicated to the other jurors that her mind was already made up and she was not going to change her mind, even on issues that had not yet been discussed. (Feagin, supra, at pp. 1435-1437.) Both cases concluded the jurors had been properly discharged. (Thomas at p. 1333; Feagin at p. 1437.)
Likewise, we conclude the trial court did not abuse its discretion in discharging Juror No. 4 in this case.
II.
The Trial Court’s Response To The Jury’s Question Regarding Premeditation
On the sixth day of jury deliberations, the jury sent the trial court the following question:
“In trying to decide on 1st or 2nd degree murder, do we consider the premeditation on the part of Vannak Prach alone or is it decided by the premeditation of the gang/ its members/ or individuals in the gang activity in question? (Count 1)”
The jury’s question was specifically directed at count 1, the charge of murder. It was not directed at count 5, the charge of attempted murder. Therefore, we need not consider the trial court’s response to the jury’s question in light of the instructions related to count 5, contrary to defendant’s claim in his reply brief.
The court and parties discussed at length what would be an appropriate response to the jury’s question. The prosecutor took the position that “under a straight aiding and abetting theory,” the aider and abettor must share the requisite specific intent with the perpetrator, but under a natural and probable consequences theory of aiding and abetting, only the perpetrator needed to harbor premeditation. Defense counsel contended the intent of both defendant and the perpetrator was relevant. Defense counsel asked the court to refer the jury to Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 401 (“Aiding and Abetting: Intended Crimes”), CALCRIM No. 521 (“Murder: Degrees”) and CALCRIM No. 522 (“Provocation: Effect on Degree of Murder”) as it had been modified for this case. The court did not feel CALCRIM No. 522 dealing with provocation was responsive to the jury’s question. The trial court felt it was only defendant’s state of mind, his premeditation or lack of premeditation, which was relevant. The prosecution suggested the court simply refer the jury back to CALCRIM No. 521 and CALCRIM No. 401. Defense counsel again asked the court to add CALCRIM No. 522 regarding provocation, but expressed satisfaction with a referral to CALCRIM No. 521 alone. The prosecution still wanted CALCRIM No. 401 included. Defense counsel then agreed the jury could also be referred to CALCRIM No. 401, but once more suggested CALCRIM No. 522 regarding provocation be added. The trial court settled on the following answer to the jury’s question: “Please refer to jury instructions #521 and #401, as well as any other instructions you think are applicable.”
CALCRIM No. 401, as given to the jury, stated: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime, does not, by itself, make him an aider and abettor.”
CALCRIM No. 521, as given to the jury, stated: “If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. [¶] All other murders are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.”
The trial court modified CALCRIM No. 522 to read as follows: “Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that a perpetrator committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether a perpetrator committed murder or manslaughter.” (Italics added.) No issue is raised on appeal regarding this instruction. We express no opinion regarding the appropriateness of the modification.
Defendant now claims on appeal the response “failed to answer the jurors’ question and permitted jurors to convict appellant of first degree murder based on an improper theory of vicarious premeditation.” Defendant contends the juror’s note indicated “they were confused on the issue of whether a first degree murder conviction could be premised on vicarious liability for the intent of a co-defendant or some other third party who played no role in the charged offense.” If the court was unclear as to the source of the jurors’ confusion, defendant claims the court should have made a further inquiry of the jury. The court’s referral of the jury to CALCRIM Nos. 521 and 401 did not directly and properly answer the jurors’ question. According to defendant, the court should have told the jury it was defendant’s intent alone that should be considered with respect to the scenario in which murder was the target offense and then should have corrected the jury’s expressed misunderstanding that the intent of “the gang” or “other non-participating gang members” could be considered on the natural and probable consequences theory of aiding and abetting. It was error, according to defendant, for the trial court to direct jurors to the very instructions that they had indicated to be the source of confusion, along with a global instruction to determine what other instructions might be relevant.
“Section 1138 provides, in pertinent part, that, when the jury ‘desire[s] to be informed on any point of law arising in the case, . . . the information required must be given . . . .’” (People v. Bohana (2000) 84 Cal.App.4th 360, 372.) The trial court “has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] The trial court was understandably reluctant to strike out on its own. But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) A violation of section 1138 does not warrant reversal unless prejudice is shown. (Ibid.)
It is also a well-established principle that when a defendant approves of the trial court’s response to a jury question during deliberations, any claim of error with respect to that response is forfeited. (People v. Bohana, supra, 84 Cal.App.4th at p. 373.) A failure to object to a trial court’s proposed response may be construed as a tacit approval of that response. (People v. Boyette (2002) 29 Cal.4th 381, 430; People v. Kageler (1973) 32 Cal.App.3d 738, 746.)
Although there was considerable discussion regarding the appropriate response to the jury’s question here, the record establishes defendant, in the end, approved the trial court referring the jury to CALCRIM Nos. 401 and 521 in answer to their question. Although defendant also wanted the jury referred to CALCRIM No. 522, defendant raises no argument on appeal regarding the trial court’s omission of that instruction from its answer. Thus, defendant has forfeited his claims on appeal.
However, even if the claims were not forfeited, we would find no prejudice from the trial court’s response.
The prosecution proceeded under a direct theory of aiding and abetting, that is, when defendant and the other TRG gang members discussed going out to catch someone “slippin,” defendant and the others specifically went out looking for a rival gang member with the intent to kill that person. As our Supreme Court has explained, under this theory of aiding and abetting, “an aider and abettor’s mental state must be at least that required of the direct perpetrator. ‘To prove that a defendant is an accomplice . . . the prosecution must show that the defendant acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” [Citation.] When the offense charged is a specific intent crime, the accomplice must “share the specific intent of the perpetrator”; this occurs when the accomplice “knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” [Citation.]’ [Citation.] What this means here, when the charged offense and the intended offense--murder or attempted murder--are the same, i.e., when guilt does not depend on the natural and probable consequences doctrine, is that the aider and abettor must know and share the murderous intent of the actual perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) By referring the jury to CALCRIM Nos. 401 and 521, the trial court adequately addressed the intent required for first degree murder under this theory of aider and abettor liability.
In McCoy the trial court did not instruct the jury on the natural and probable consequences doctrine. It instructed only on an aider and abettor’s guilt of the intended crimes. Therefore, the Supreme Court expressly noted that “[n]othing we say in this opinion necessarily applies to an aider and abettor’s guilt of an unintended crime under the natural and probable consequences doctrine.” (25 Cal.4th at p. 1117.)
The prosecution, however, also proceeded under a natural and probable consequences theory of aiding and abetting, that is, when defendant and the other TRG gang members discussed going out to catch “someone slippin,” defendant and the others at least intended to commit the crime of shooting from a motor vehicle or its lesser included offense of assault with a firearm. The jury was instructed with CALCRIM No. 402 (Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged)) specifically identifying such offenses as possible uncharged target crimes. If the jury concluded defendant aided and abetted only such uncharged target crimes and a murder resulted, defendant would have derivative liability for such murder if the murder was a natural and probable consequence of the commission of the target offense. (People v. Prettyman (1996) 14 Cal.4th 248, 260; People v. Beeman (1984) 35 Cal.3d 547, 560; see People v. McCoy, supra, 25 Cal.4th 1111, 1117.)
To determine if defendant was responsible for a first degree murder under this theory of aiding and abetting, the jury would have had to decide both that a first degree murder was committed and that first degree murder was a natural and probable consequence of aiding and abetting the uncharged target crimes under the circumstances of this case. (See People v. Prettyman, supra, 14 Cal.4th at pp. 262, 267; People v. Woods (1992) 8 Cal.App.4th 1570, 1577-1578.) To decide the first question - whether the murder committed by the perpetrator was a first degree murder, the jury would have had to consider the perpetrator’s specific intent, not because defendant was vicariously liable for such intent per se, but because a defendant becomes responsible under the natural and probable consequences theory of aiding and abetting for the crime actually committed by the perpetrator if such crime was a reasonably foreseeable consequence of aiding and abetting the target offense. (See People v. Perez (2005) 35 Cal.4th 1219, 1225-1226; People v. Prettyman, supra, at pp. 262, 267; see also People v. Mendoza (1998) 18 Cal.4th 1114, 1133 .) The nature and degree of the crime committed by the perpetrator must be determined before the extent of defendant’s liability for his own intent and acts in aiding and abetting the uncharged target offense can be determined.
In his opening brief, defendant cites People v. McCoy, supra, 25 Cal.4th at page 1118 and footnote 1, for the proposition that “a defendant may be vicariously liable for the perpetrator’s premeditation” under the natural and probable consequences theory of aiding and abetting. We find defendant’s statement to be misleading and an inaccurate reading of McCoy. We also note again McCoy expressly did not consider aider and abettor liability under the natural and probable consequences doctrine. (Id. at p. 1117.)
The trial court’s referral of the jury to CALCRIM Nos. 401 and 521, and generically to any other instruction the jury felt was appropriate, was an incomplete response to the jury’s question regarding whose premeditation should be considered if the jury was considering liability under the natural and probable consequences theory of aider and abettor liability. However, any error benefited defendant because the reference of the jury to only defendant’s intent to aid and abet (CALCRIM No. 401) and defendant’s deliberation and premeditation (CALCRIM No. 521) limited the jury’s consideration to the prosecution’s direct aider and abettor’s theory of liability. The response did not allow the jury to consider any other person’s premeditation.
Moreover, it is clear from the jury’s verdict that the jury found defendant had the specific intent to commit premeditated and deliberated first degree murder when it found defendant guilty of conspiracy to commit murder. “[W]here two or more persons conspire to commit murder--i.e., intend to agree or conspire, further intend to commit the target offense of murder, and perform one or more overt acts in furtherance of the planned murder--each has acted with a state of mind ‘functionally indistinguishable from the mental state of premeditating the target offense of murder.’ [Citation.] The mental state required for conviction of conspiracy to commit murder necessarily establishes premeditation and deliberation of the target offense of murder--hence all murder conspiracies are conspiracies to commit first degree murder . . . .” (People v. Cortez (1998) 18 Cal.4th 1223, 1232.) In such circumstance, any error in the trial court’s response to the jury’s question was harmless.
III.
Section 190.2, Subdivision (a)(22), The Gang Special Circumstance, Applies To Aiders And Abettors
Section 190.2, subdivision (a)(22), provides a defendant is eligible for the death penalty or imprisonment for life without the possibility of parole when the jury finds: “The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.”
From the statute’s reference to “the defendant” and use of the active voice (“intentionally killed the victim”), defendant contends the special circumstance allegation in section 190.2, subdivision (a)(22), is only applicable to the actual killer of the victim and cannot be applied to an aider and abettor. Defendant argues this construction of the language is supported by the text of Proposition 21, which added subdivision (a)(22) to section 190.2. Such text declares that “[g]ang-related felonies should result in severe penalties. Life without the possibility of parole or death should be available for murderers who kill as part of any gang-related activity.” (Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 2, subd. (h), p. 119 (Ballot Pamphlet); see People v. Lopez (2005) 34 Cal.4th 1002, 1009-1010.) Defendant contends the gang special circumstance found true by the jury must be stricken.
It is undisputed defendant was not the actual killer (shooter) of Sok. Therefore, this issue presents a question of statutory interpretation, which we examine de novo. (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 722.) In interpreting statutory language added by a voter initiative measure, we apply the same rules governing construction of a statute adopted by the Legislature. (People v. Rizo (2000) 22 Cal.4th 681, 685; People v. Bustamante (1997) 57 Cal.App.4th 693, 699, fn. 5.)
“We begin by examining the language of the initiative statute, giving the words their usual and ordinary meaning, viewed in the context of the statute as a whole and the overall statutory scheme. [Citation.]” (Knight v. Superior Court (2005) 128 Cal.App.4th 14, 23.) While we start with the specific words at issue, “we do not consider the statutory language ‘in isolation.’ [Citation.] Rather, we look to ‘the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]’ [Citation.] That is, we construe the words in question ‘“in context, keeping in mind the nature and obvious purpose of the statute . . . .” [Citation.]’ [Citation.] We must harmonize ‘the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.’ [Citations.] We must also avoid a construction that would produce absurd consequences, which we presume the Legislature did not intend. [Citations.]” (People v. Mendoza (2000) 23 Cal.4th 896, 907-908.)
Defendant’s interpretation of the language of section 190.2, subdivision (a)(22) ignores the plain language of section 190.2, subdivision (c), which specifically provides that every person who is not the actual killer, but who with the intent to kill aids and abets the murder, “shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.” One of the special circumstances enumerated in subdivision (a) is the gang special circumstance. (§ 190.2, subd. (a)(22).) Proposition 21 added subdivision (a)(22) without amending subdivision (c) to exclude subdivision (a)(22) from its scope. Thus, reading subdivision (a)(22) with subdivision (c) makes it clear the gang special circumstance applies to aiders and abettors.
A different conclusion is not compelled by the statement in the textual findings of Proposition 21 to which defendant refers us. (Ballot Pamphlet, supra, § 2, subd. (h), p. 119.) This is particularly true when we consider the initiative’s description of subdivision (a)(22) contained in another section of the text of Proposition 21. Specifically, section 36 of the initiative describes the initiative as “amending Section 190.2 of the Penal Code to add intentional gang-related murders to the list of special circumstances, permitting imposition of the death penalty or life without the possibility of parole for this offense . . . .” (Ballot Pamphlet, supra, § 36, p. 131, italics added.) This portion of the initiative text suggests the special circumstance is not restricted to actual killers, but was intended, consistent with subdivision (c) of section 190.2, to also apply to aiders and abettors.
By analogy, we also find support for our interpretation of subdivision (a)(22), in People v. Bonilla (2007) 41 Cal.4th 313. In Bonilla the California Supreme Court considered the lying-in-wait special circumstance of former section 190.2, subdivision (a)(15). (§ 190.2, former subd. (a)(15), added by Prop. 7, § 6, as approved by voters, Gen. Elec. (Nov. 7, 1978).) Like subdivision (a)(22), the lying-in-wait special circumstance applied, and still does, when “the defendant intentionally killed the victim[.]” (§ 190.2, former subd. (a)(15); § 190.2, subd. (a)(15).) The Supreme Court rejected the argument that such language limited the application of the lying-in-wait special circumstance to actual killers and not aiders and abettors. (People v. Bonilla, supra, at pp. 330-331.) According to the court, such a narrow construction of the special circumstance would have impermissibly negated former subdivision (b) of section 190.2 (which subdivision the court expressly noted has been continued now as subdivision (c) of section 190.2). (People v. Bonilla, supra, at p. 331 & fn. 5.)
We conclude the gang special circumstance of section 190.2, subdivision (a)(22), is applicable to aiders and abettors.
IV.
Any Error In The Trial Court’s Refusal To Give Tailored Voluntary Intoxication Instructions Was Harmless
TRG gang members Sovanara Chan and Reachhetra Pheng were shooters in the incident on Astor Drive that resulted in the death of Sok.
Chan testified he drank a large quantity of beer over the course of the afternoon and night of the shooting. He drank two cans of beer during the three to four hour period of time he was at a party before returning to Hong’s garage. He testified he could tell he was affected by the alcohol because he could not play video games as well as usual. Chan testified the shooting occurred probably 40 minutes after his last beer, although he thought he was still drunk.
Pheng testified in his own trial, introduced as former testimony in defendant’s trial, that he drank two 40-ounce beers, plus a couple of cans of beer, the night of the shooting. Pheng said he was drunk when he was riding in defendant’s van after they left Hong’s garage. He admitted he knew what was going on, although he thought they were “going to play pool or something. I didn’t know--it was just like everything just happened.”
Based on this evidence, defendant requested that the trial court give voluntary intoxication instructions in connection with the prosecution’s natural and probable consequences theory of aiding and abetting. Finding that it was only defendant’s state of mind, not the perpetrator’s that was relevant, the trial court declined to give CALCRIM Nos. 625 and 3426. Defendant now claims the trial court’s refusal to instruct on intoxication was prejudicial error. We conclude any error was harmless.
It is clear from the jury’s verdict of guilt on the charge of conspiracy to commit murder that the jury found defendant had a specific premeditated intent to kill (People v. Cortez, supra, 18 Cal.4th at p. 1232), i.e., the jury did not use the natural and probable consequences theory of aiding and abetting, but found defendant guilty on a direct theory of aiding and abetting the charged offense - murder. Thus, any error by the trial court here in refusing defendant’s request for voluntary intoxication instructions tailored to relate to the perpetrators’ intoxication was harmless under any standard.
V.
The Parole Revocation Fine Must Be Stricken
Defendant contends, and the People concede, the trial court erred by imposing a parole revocation fine (§ 1202.45) even though defendant was sentenced to state prison for life without possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181-1186; accord, People v. Jenkins (2006) 140 Cal.App.4th 805, 819.) We accept the People’s concession and shall order the section 1202.45 fine stricken.
VI.
The Enhancements Imposed On Counts 2, 5, and 6 Pursuant to Section 186.22, Subdivision (b) Must Be Stricken
The jury found true enhancement allegations that a principal intentionally and personally discharged a firearm causing death or great bodily injury within the meaning of section 12022.53, subdivisions (d) & (e) as to the murder count (count 1), the two counts of shooting a firearm from a motor vehicle (counts 2 & 6), and the count of attempted murder (count 5). The jury also found true enhancement allegations the murder (count 1), the shootings from a motor vehicle (counts 2 & 6), the shooting at an occupied dwelling (count 3), and the attempted murder (count 5) were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
In sentencing defendant, the trial court imposed section 12022.53, subdivisions (d) and (e) enhancements on counts 1, 2, 5, and 6. The trial court struck the section 186.22, subdivision (b)(1) enhancement as to counts 1 and 3. The trial court imposed, but stayed, an additional term of 10 years on count 2 pursuant to section 186.22, subdivision (b)(1)(C). The trial court imposed, but stayed, an additional term of five years on count 6 pursuant to section 186.22, subdivision (b)(1)(B). As to count 5, the attempted murder, the trial court imposed a minimum parole eligibility of 15 years on defendant’s life sentence pursuant to section 186.22, subdivision (b)(5).
Section 12022.53, subdivision (e)(2) provides an enhancement for participation in a criminal street gang pursuant to section 186.22 shall not be imposed on a person in addition to an enhancement imposed pursuant to section 12022.53, subdivision (e)(1), “unless the person personally used or personally discharged a firearm in the commission of the offense.” Since it is undisputed defendant did not personally use or discharge a firearm in the commission of any of the offenses, defendant contends the trial court erred in imposing and staying section 186.22 enhancements on counts 2, 5, and 6 in addition to the section 12022.53, subdivision (e) enhancements. (People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282.) The People concede the point and we agree. We shall modify the judgment to strike the section 186.22 enhancements on counts 2, 5, and 6.
DISPOSITION
The parole revocation fine imposed pursuant to Penal Code section 1202.45 is ordered stricken. The enhancements imposed on counts 2, 5, and 6 pursuant to Penal Code section 186.22 are ordered stricken. As so modified, the judgment is affirmed. The trial court is ordered to prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P.J., BUTZ, J.