P. v. Armster

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Filed 4/18/07 P. v. Armster CA4/2
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
TONY EUGENE ARMSTER et al.,
Defendants and Appellants.
E038151
(Super.Ct.No. RIF108728)
O P I N I O N
APPEAL from the Superior Court of Riverside County. Vilia G. Sherman, Judge.
Affirmed with directions.
Christine Vento, under appointment by the Court of Appeal, for Defendant and
Appellant Tony Eugene Armster.
Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant
and Appellant Manuel Varela.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant Reina Delores Reyes.

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Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner
Sobeck, Supervising Deputy Attorney General, and Ronald A. Jakob, Deputy Attorney
General, for Plaintiff and Respondent.
I. INTRODUCTION
In a third amended information, Tony Armster, Manuel Varela, and Reina Reyes
were charged with one count of conspiracy to commit murder (Pen. Code, § 182, subd.
(a)(1);1 count 1), five counts of willful, deliberate, and premeditated attempted murder
(§§ 664, 187, subd. (a); counts 2-6), one count of assault with a firearm (§ 245, subd.
(a)(2); count 7), and one count of discharging a firearm at an inhabited dwelling (§ 246;
count 8). Reyes was also charged with one count of making criminal threats. (§ 422;
count 9.) As to Armster and Varela, various firearm enhancements within the meaning of
sections 12022.53, subdivisions (c) and (d) and 12022.5, subdivision (a) were alleged in
counts 1 through 8.2 As to Reyes, it was alleged a principal was armed with a firearm in
counts 1 through 6 and 8, within the meaning of section 12022, subdivision (a)(1).
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Specifically, in counts 1 through 6 it was alleged that Armster and Varela
personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)); in
counts 2 through 6, that they personally discharged a firearm (§ 12022.53, subd. (c)) and
personally used a firearm (§ 12022.5, subd. (a)); in count 7, that they personally used a
firearm (§ 12022.5, subd. (a)(1)); and, finally, in count 8, that they personally discharged
a firearm causing great bodily injury (§ 12022.53, subd.(d)), personally discharged a
firearm (§ 12022.53, subd. (c)), and personally used a firearm (§§ 667, 1192.7, subd.
(c)(8)).

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All of the charges stemmed from a March 4, 2003, drive-by shooting at a home in
Moreno Valley. The home belonged to the Salazar family, including 20-year-old Justin
Salazar, his younger brother Jeramie Salazar, and their parents, Ronald and Christina
Salazar. The four members of the Salazar family and two other persons, namely, Denise
Yrigoyen, and her boyfriend, Michael Rodarte, were in the Salazar house at the time of
the shooting. Michael suffered a bullet wound to his chest, but survived. All three
defendants were passengers in a white Ford Taurus. The driver of the Taurus was
Donzelle Benton. After the Taurus drove by the Salazar house several times, five or
more shots were fired from the passenger side of the Taurus at the Salazar house. Benton
was originally charged with defendants, but entered into a plea agreement before trial and
testified for the prosecution.
The third amended information charged defendants with conspiracy to murder
Justin Salazar (count 1), the willful, deliberate, and premeditated attempted murders of
Justin Salazar (count 2), Jeramie Salazar (count 3), Christina Salazar (count 4), Ronald
Salazar (count 5), and Michael Rodarte (count 6). Although Denise was present in the
Salazar house at the time of the shooting, defendants were not charged with attempting to
murder Denise. They were, however, charged with assaulting Denise with a firearm
(count 7), and with shooting at an inhabited dwelling (count 8). Only Reyes was charged
with making criminal threats to Justin Salazar (count 9).
The parties stipulated to two juries, one for Armster and Varela and a separate jury
for Reyes. Armster and Varela were found guilty as charged, and all firearm allegations
were found true. Reyes was found guilty as charged on counts 1, 2, and 6 through 9, but

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not guilty on counts 3 and 4. A mistrial was declared on count 5 and count 5 was
dismissed after Reyes’s jury was unable to reach a verdict. The Reyes jury found the
firearm allegations true on counts 1, 2, 6, and 8. Armster and Varela were each sentenced
to 235 years to life, plus five years in state prison.3 Reyes was sentenced to 39 years to
life, plus 12 years 8 months.4
Defendants appeal, with each joining the others’ contentions. Defendants first
contend there is insufficient evidence of intent to kill to support their conspiracy to
commit murder and attempted murder convictions, and insufficient evidence to support
any of their attempted murder convictions under a kill zone theory. We find sufficient
evidence of intent to kill to support each defendant’s convictions in counts 1 through 6.
Second, defendants contend the prosecutor improperly vouched for the credibility of
prosecution witness Benton in several respects. We find no improper vouching.
Third, fourth and fifth, defendants raise claims of instructional error. Specifically,
they contend the trial court erroneously: (1) failed to instruct sua sponte on the lesser
3 Armster’s and Varela’s sentences consisted of 25 years to life on count 1 (the
conspiracy to commit murder), consecutive life terms on counts 2 through 6 (the
premeditated, attempted murders), plus 25 years to life for each of the seven personal
discharge enhancements (on counts 1 through 6 and 8), plus five years on count 8
(shooting at an inhabited dwelling). Additional terms were imposed but stayed on count
7 (assault with a firearm) and the remaining firearm enhancements on all counts.
4 Reyes’s sentence consisted of 25 years to life on count 1, plus two consecutive
life terms on counts 2 and 6, with minimum parole eligibility periods (MPEDs) of seven
years on counts 2 and 6, plus one year on count 7, plus the upper term of seven years on
count 8, plus eight months on count 9, plus one year for each armed enhancement in
counts 1, 2, 6, and 8.

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included offense of attempted voluntary manslaughter based on heat of passion in counts
2 through 6, the premeditated, attempted murder counts; (2) refused to instruct on the
lesser related offenses of assault with a firearm and shooting at an occupied dwelling in
counts 2 through 6; and (3) failed to instruct on the Dewberry5 principle on the
premeditated, attempted murder counts. We find no instructional error. There was no
evidence that any defendant acted in the heat of passion in counts 2 through 6; the trial
court had no duty to instruct on any lesser related offenses; and the juries were properly
instructed on the Dewberry principle in counts 2 through 6.
Sixth, Varela and Armster claim that the section 12022.53, subdivisions (c) and
(d) enhancements were erroneously imposed on count 1, the conspiracy count, because
conspiracy is not a crime listed in section 12022.53. We reject this contention, because
section 12022.53 enhancements apply to felonies punishable by life in prison, which
includes conspiracy to commit murder.
Defendants also raise several claims of sentencing error. First, they claim their
separate 25-year-to-life sentences on count 1 for conspiracy to commit murder should
have been stayed in view of their separate consecutive straight-life sentences for the
attempted murder of Justin in count 2. We agree with this contention, because the
evidence showed that defendants’ intent and objective in counts 1 and 2 were the same,
namely, the murder of Justin. There was no evidence that defendants harbored a different
and broader objective, other than the murder of Justin, in count 1.
5 People v. Dewberry (1959) 51 Cal.2d 548.

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Reyes further claims that her consecutive sentence on count 7 (assault with a
firearm) should have been stayed in view of her consecutive sentence on count 8
(shooting an inhabited dwelling). Lastly, defendants claim the trial court abused its
discretion in imposing consecutive sentences on all counts, and their consecutive
sentences and Reyes’s upper term sentence on count 8 violate their right to a jury trial
under Blakely.6 We find each of these claims without merit.
Accordingly, we modify the judgments to stay defendants’ sentences and
enhancements on count 1, the conspiracy to commit murder count. In all other respects,
we affirm the judgments.
II. FACTS AND PROCEDURAL HISTORY
A. Prosecution Evidence Presented to Both Juries
1. Relationship of Parties, Victims, and Witnesses
On March 4, 2003, Justin, then age 20, lived in a house on Briana Street in
Moreno Valley with his parents, Ronald and Christina, and his younger brother, Jeramie.
Denise and her boyfriend Michael were friends with Jeramie and lived across the street
from the Salazars.
Roque Viernes, Jr. was defendant Reyes’s boyfriend. On March 4, 2003, Roque
was 19 years old, and Reyes was 18 years old. Since April 2002, Reyes and Roque had
been living with Roque’s parents in a house on Sun Valley Road in Moreno Valley. The
Viernes house was approximately a five-minute walk and a two-minute drive from the
6 Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403].

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Salazar house. Roque and Justin were good friends, and had known each other since
middle school.
Defendants Varela and Reyes are brother and sister. Donzelle Benton lived with
his aunt, Joe Ann Sanford-Keough, and Varela in Perris. Defendant Armster was the
boyfriend of Benton’s cousin.
2. Events Preceding the Shooting
On March 4, 2003, Roque and Reyes had an argument at Roque’s house. Later
that day, Roque went to the Salazar house. There, Christina told Roque that, according to
her husband Ronald, Reyes had been cheating on Roque. Then Justin came home and,
according to Roque, confirmed that Reyes had been cheating and advised Roque to break
up with Reyes.7 Justin denied telling Roque to break up with Reyes. Instead, he said he
told Roque to “do whatever you have to do to make your situation right.”
Roque returned home, where he continued arguing with Reyes. He told Reyes that
Justin said she had been cheating on him, he was breaking up with her, and she had to
move out of his house. Reyes “didn’t like it” and “didn’t want to take it.” Roque called
Justin to help him move Reyes’s belongings out of his house, and to tell Reyes he knew
she had been having an affair. Reyes wanted Justin to come over so she could confront
him.
7 Several months earlier, Justin told Roque he had a videotape that would prove
Reyes was having an affair, but Justin never gave Roque the videotape.

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Justin came over to Roque’s house, and Reyes began arguing with Justin. Justin
told Reyes her relationship with Roque was over because she had cheated on him.8
Reyes denied cheating on Roque. She called Justin a “fat mother-fucker” and “a liar,”
and called Justin and his father Ronald “some lying mother-fuckers.” According to
Roque, Reyes was acting “[k]ind of like violent” and “crazy.” She started “jumping in
[Justin’s] face,” swung her arms at him, and was yelling, “Hit me, hit me.”
Eventually, Reyes became frustrated and walked away from Justin. She returned a
few minutes later, holding a phone to her ear. She smiled and told Justin, “‘I’m going to
fucking kill you, got a bullet with your name on it, and I’m going to call my brother to
come shoot your house.’” (Italics added.) She appeared angry and “dead serious.” Justin
said, “You know where I’m at” and went home.
After Justin left Roque’s house, Roque again told Reyes to leave his house. Reyes
left, returned about 10 minutes later, and continued arguing with Roque. At this point,
Reyes angrily told Roque that she was going to stab Justin “in his fat heart.” Reyes made
another phone call and left the house. Roque did not know whom Reyes called.
In the meantime, Justin returned home, told his parents that Reyes had threatened
his life, and called 911 to report the threat. Then, Roque called Justin and told him about
Reyes’s latest threat to stab Justin in his “fat heart.” Roque sounded very frightened. At
8 Justin testified that, after Reyes started swearing at him and denied cheating on
Roque, he said to her, “That’s what this is all about? About what? I don’t even know
what to tell you.”

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this point, Ronald and Christina were at home, and Jeramie, Michael, and Denise had
arrived at the Salazar home for dinner.
3. Benton’s Testimony
Benton testified that Reyes called Sanford-Keough’s house and spoke with Varela
on March 4. Benton and Armster were present when Reyes called. Varela then asked
Benton to give him a ride to Moreno Valley, explaining there was an emergency
involving Reyes, and they needed to pick up Reyes at Roque’s house. Within several
minutes of Reyes’s call, Benton drove to Roque’s house in Benton’s white “police issue”
Ford Taurus. Armster sat in the front passenger seat and Varela sat in the backseat. On
the way, Varela angrily said, “‘I’m going to F him up if he put his hands on my sister.’”
Benton did not know and did not ask Varela who he was talking about.
When Benton, Armster, and Varela arrived at Roque’s house, Reyes came outside
with some other people, who appeared to be Roque’s parents. She was angry, and spoke
with Armster and Varela. Someone said to Reyes, “please don’t go do this.” The
conversation lasted approximately one minute, then defendants and Benton got into the
Taurus. Benton drove, with Armster in the front passenger seat, Varela in the right rear
passenger seat, and Reyes in the left rear passenger seat.
Reyes and Varela directed Benton to Briana Street. On the way, Reyes and Varela
talked with each other. They were both angry, and said they were “looking for two
guys.” Either Varela or Reyes instructed Benton to drive slowly up and down Briana
Street several times, as they looked for the Salazar house. Varela indicated he wanted to

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go to the door and talk to the people in the house, but Reyes told him not to because the
people had guns.
After driving by the Salazar house several times, Benton drove back toward
Roque’s house on Sun Valley Road. But instead of stopping at Roque’s house, Armster
directed Benton to drive to his friend’s house, explaining he needed to pick up something
and wanted to be prepared. Benton, Varela, and Reyes stayed in the car while Armster
went into his friend’s house for a few minutes. When he returned, Armster said, “mine
has three” and something to the effect of “it’s a throw-away.”
Varela then asked Benton to drive back to Briana Street one more time. On the
way, Varela told Reyes, “‘We can do this later. We can come back.’” But Reyes replied,
“‘No, I want to do it’” and “‘I want them to feel it.’” Varela said, “‘[Benton] won’t let us
shoot out of his car.’” Then, shortly before the shooting, either Reyes or Varela said,
“‘Are you ready?’”
Benton heard shots coming from the rear passenger side of the car, where Varela
was sitting. Then he saw a flash from Armster’s gun. After that, the shots “ran
together.” As the shots were being fired, Benton slowed the car to a near stop in front of
the Salazar house. All three defendants yelled, “‘Don’t stop. Drive, drive, drive.’”
Benton quickly sped away, spinning his tires. Benton said he did not know there was
going to be a shooting, but he had “bad feelings that something bad was going to
happen.”

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4. Events at the Salazar House
After Justin returned home and called 911 to report Reyes’s threat, Ronald was in
Jeramie’s upstairs bedroom, watching the street. The Taurus drove by the house several
times. All of the lights in the house were on. The occupants of the Taurus leaned over
and looked at the house. After the Taurus left, Justin, Jeramie, and Michael went outside
for a couple of minutes, but came back inside after Ronald told them to come in. Ronald
turned off the light in Jeramie’s room.
Later, Benton, Armster, Varela, and Reyes returned in the Taurus. At this point,
Ronald was still looking out the upstairs window, with the lights turned off. The other
lights in the house were still on. Denise was looking out the living room window next to
the front door. Justin and Michael were standing inside the closed front door. Christina
was in the kitchen calling 911. Jeramie was either in the living room or in the kitchen
with Christina.
Christina heard a “flurry” of gunfire with no less than five shots. Ronald observed
four or five rapid-fire shots from the rear seat and one louder shot with a bigger flash
from the right front passenger seat. Armster looked up at the upstairs window, and
Ronald backed away from the window. No more shots were fired.
The front profile of the Salazar house was small. There was a garage in the front,
facing the street. The front door and one living room window were to the right of the
garage. Four upstairs bedroom windows also faced the street. There were blinds on all
of the windows and the kitchen was in the back of the house. There was a security door
in front of the front door.

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One of the bullets pierced the security door and front door and struck Michael in
the chest. Another bullet lodged in the living room windowsill above where Denise was
standing. No one other than Michael was hit. After Michael fell to the ground, Justin
and Denise dragged him into the kitchen. Michael removed his shirt and blood began
“pouring” out of the bullet wound. Michael said “he couldn’t breathe and he was afraid
he was going to die.” Justin told the 911 operator to hurry because the situation had
become chaotic. Everyone huddled together on the kitchen floor. Paramedics and
sheriff’s deputies arrived, and Michael was taken to the hospital.
Michael had severe pain for two weeks. At the time of trial, two years after the
shooting, the bullet was still in Michael’s body. He continued to experience “real bad
chest pains” in cold weather.
5. Events Following the Shooting
Following the shooting, Reyes told Benton where to drive. As they drove away
from the Salazar house, Armster and Varela threw their guns out of the Taurus windows.
A sheriff’s helicopter illuminated and circled the Taurus as it was heading southbound on
Perris Boulevard. Benton pulled over and everyone got out of the car. Reyes told
Armster and Varela to urinate on their hands to wash away any gunpowder. Varela was
unable to urinate, so Armster urinated on Varela’s hands. A few minutes later, sheriff’s
deputies arrived and arrested Benton, Armster, Varela, and Reyes. The arrests took place
between three and five miles from the Salazar house.
Armster’s and Varela’s hands were tested for gunshot residue (GSR). Several
highly specific particles of GSR were found on Varela’s left hand. No GSR was found

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on Varela’s right hand or on either of Armster’s hands. Steven Dowell, a GSR analyst,
testified that the application of urine can remove GSR. He also said the absence of GSR
is an “inconclusive finding” since certain firearms or the circumstances of a particular
discharge may not result in any GSR.
The investigation of the crime scene showed that approximately five shots were
fired at the Salazar house. A bullet hole in the security door and front door corresponded
with the bullet that struck Michael. There were also several bullet holes in the eaves on
the front of the house and in the front windowsill above where Denise was standing in the
living room. Four expended shell casings were found in the street in front of the house.
There were three .22-caliber casings and one .380-caliber casing.
Detective Gregory Bonaime found a Jennings .22-caliber semiautomatic handgun
in the roadway at Indian and Iris Streets across from a Moreno Valley elementary school.
The gun was wet from fog and rain. Test fires from the Jennings handgun produced
chamber marks which corresponded with those on the three .22-caliber casings found in
front of the Salazar house. No .380-caliber weapon was ever found.
B. Prosecution Evidence Presented Only to the Reyes Jury
Detective Bonaime interviewed Reyes after the shooting. Initially, Reyes denied
threatening Justin and said she was at Roque’s house at the time of the shooting. She
later admitted she was involved in a confrontation with Justin and telling him, “‘If I had a
gun right now I would kill you.’”
Reyes denied going to the Salazar house on the night of the shooting. She said
Benton, Armster, and Varela picked her up at Roque’s house, then the four of them drove

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south to Perris Boulevard where they were apprehended. Reyes said Benton was the
driver, Armster was in the front passenger seat, Varela was in the right rear passenger
seat, and she was in the left rear passenger seat.
Reyes described two black semi-automatic handguns, and said Varela threw both
guns out the window on the way to Perris Boulevard. Reyes directed deputies to the
location where the .22-caliber Jennings handgun was found. She said the second gun,
which deputies were unable to locate, was larger than the Jennings.
C. Defense Case
1. Evidence Presented to Both Juries
Armster testified in his own defense. On March 4, 2003, he ate dinner at Sanford-
Keough’s house, and was standing on the porch smoking a cigarette when Varela arrived.
Varela told him they had to pick up his sister, Reyes, because she had been in a fight with
her boyfriend and had threatened to kill herself.
Benton drove Varela and Armster to Moreno Valley in the Taurus. Armster was
in the right front passenger seat and Varela was in the rear backseat. There were no
weapons in the car. Varela was very upset and said that if anyone put his hands on his
sister he would “kick his ass.” When they arrived at Roque’s house, Reyes came outside
and spoke to Varela and two older adults on the front porch. Reyes was upset and crying.
Someone said, “‘You don’t have to leave.’” Benton, Armster, Varela, and Reyes then got
into the Taurus, with Reyes in the left rear passenger seat, Varela in the right rear
passenger seat, and Armster in the front passenger seat.

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Benton drove to Briana Street in Moreno Valley, while Varela and Reyes talked in
the backseat. They drove up and down Briana Street a couple of times. Varela said he
wanted to go up to the door and talk to the father and son. However, someone said, “‘No,
don’t go up because they might have guns.’” Varela replied, “‘Well, that’s not what I’m
here for. I want to talk to them, so I’m not worried about that.’” Varela and Reyes
continued to talk or argue as Benton drove by the house two or three more times.
According to Armster, the last time they slowed in front of the house on Briana
Street, an unidentified Hispanic male ran toward their car with a chrome gun, and fired it
three times. Everyone yelled, “‘Go, go, go, drive, drive, drive,’” as Benton sped away
with tires screeching. Varela was angry, and asked Reyes what was going on. Armster
denied retrieving a gun from a house and denied having a gun. He did not see Varela fire
a weapon, but he saw something black on Varela’s lap, which may have been a gun. He
did not see anyone throw any weapons out of the car.
After the car was illuminated by the helicopter, Armster and Varela told Benton to
pull over. Armster denied he and Varela urinated on their hands. He told detectives he
did not know anything about a shooting, and he denied he was at a house on Briana
Street. When asked what had happened, he told the detectives, “‘You’ve got to do what
you’ve got to do.’” Armster testified he meant to say he had to get a hold of his parents
and the detectives would have to contact his attorney.
Neither Varela nor Reyes testified. Nor did Reyes present any evidence in her
defense.

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2. Testimony Presented Only to the Armster/Varela Jury
Armster denied he tried to intimidate Benton, or told Benton what to say before he
spoke with his aunt, Sanford-Keough, or the district attorney’s office. Armster also
denied ever being in the same holding cell as Benton. Armster testified he did not
“really” talk about the shooting with Sanford-Keough when she asked him whether he
was one of the shooters. Instead, he would “go around” her questions.
Varela presented evidence that, when interviewed by Detective Todd Grimm,
Ronald indicated he heard three shots fired from the front passenger side of the Taurus.
When interviewed by Deputy Daniel Decker, Denise indicated she was looking at the car
through some blinds when she saw the flash of a muzzle from a gun, heard three
gunshots, dropped to the floor, and heard Michael say he had been shot. Denise said the
bullets came from the right front passenger side of the car where a bald male was seated.
D. Rebuttal
1. Testimony Presented to Both Juries
Benton’s aunt, Sanford-Keough, testified as a rebuttal witness for the prosecution.
According to Sanford-Keough, Armster was her daughter’s boyfriend, and Armster and
Varela lived with her at the time of the shooting. Benton, Armster, and Varela left the
house together on March 4, 2003, approximately 10 minutes after Reyes called. Later
that night, she discovered the four of them had been arrested.
During the two-year period between the arrests and the trial, Sanford-Keough
spoke with Armster 40 or 50 times. When she asked him what happened on the night of
March 4, he did not “admit to shooting anything. He just said he did his part. He wasn’t

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alone.” However, he admitted he was “involved” eight or ten times. Several times,
Sanford-Keough told Armster that Benton had spoken with people in the district
attorney’s office, and he should do the same.
Benton reaffirmed that he saw Armster fire a shot out the front window of his car
and he heard, but did not see, shots being fired from the rear of the car, from where
Varela was sitting. Benton did not see any Hispanic man crouching or running near the
car. He reiterated that Armster directed them to a friend’s house after picking up Reyes
and prior to the shooting. Benton stopped for the helicopter without anyone telling him
to pull over. He did not hear Varela talk about a father and son. The “two guys” Varela
and Reyes were looking for were not a father and son.
At the request of his wife and children, Benton decided to talk to representatives
of the district attorney’s office. Benton pleaded guilty to every count that was charged
against him in exchange for a sentence of 22 years 4 months, and his agreement to testify
truthfully against defendants. He had not been sentenced as of the time of trial.
Deputy Lance Colmer interviewed Armster following his arrest. Armster told
Colmer that he rode in the car from Perris to Moreno Valley. They stopped at a residence
on Sun Valley Road, drove around the block a few times, and ended up on Perris
Boulevard. When the deputy mentioned the shooting, Armster said he had no idea what
the deputy was talking about. Armster appeared angry and frustrated, and was defensive.
He did not mention he saw a Hispanic man with a gun or a black object on Varela’s lap.

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2. Testimony Presented Only to the Armster/Varela Jury
Benton was in protective custody for a year and a half. He was in the same
holding cell as Varela and Armster a few times before he was placed in protective
custody. When he was in the general jail population, Varela told him that “if anything
was ever said by anybody that the paper would be put out and they would be taken care
of.” When Varela said this, Benton felt threatened. After Benton went to the district
attorney’s office, Armster and Varela often called him a “‘[s]nitch’” and “‘F-ing
B[itch].’” At the time of trial, Benton still felt threatened.
III. DISCUSSION
A. Substantial Evidence Supports the Conspiracy and Attempted Murder Convictions
Armster contends that insufficient evidence supports his conspiracy and attempted
murder convictions because, he argues, there was no evidence he intended to kill Justin or
anyone else in the Salazar house. He separately contends there is insufficient evidence
that he concurrently intended to kill anyone in the Salazar house under the kill zone
doctrine. Varela and Reyes join these contentions.
We conclude that substantial evidence supports each defendant’s conspiracy and
attempted murder convictions. The evidence showed that defendants conspired to murder
Justin, and specifically intended to kill Justin. The evidence also showed that, in order to
kill Justin, defendants concurrently intended to kill anyone who was in the Salazar house
and who either was or may have been in the line of the shots fired at the house. These
persons included Jeramie, Ronald, Christina, Michael and Denise.

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1. Background
All three defendants were convicted of conspiracy to commit murder in count 1.
Reyes was convicted of attempting to murder Justin (count 2) and Michael (count 6).
Armster and Varela were convicted of attempting to murder Justin (count 2), Jeramie
(count 3), Christina (count 4), Ronald (count 5) and Michael (count 6.) None of the
defendants were charged with attempting to murder Denise. Instead, they were each
charged and convicted of assaulting Denise with a firearm (count 7), and of shooting at
an occupied dwelling (count 8). Reyes was also charged and convicted of making
criminal threats to Justin (count 9).
2. Standard of Review
“‘“When the sufficiency of the evidence is challenged on appeal, the court must
review the whole record in the light most favorable to the judgment to determine whether
it contains substantial evidence—i.e., evidence that is credible and of solid value—from
which a rational trier of fact could have found the defendant guilty beyond a reasonable
doubt.”’” (People v. Hill (1998) 17 Cal.4th 800, 848-849.) We must presume in support
of the judgment the existence of every fact the trier of fact could have reasonably
deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same
standard of review applies when a conviction rests primarily on circumstantial evidence.
(People v. Perez (1992) 2 Cal.4th 1117, 1124.)
“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment. [Citation.]’” (People v.

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Thomas (1992) 2 Cal.4th 489, 514.) Reversal is warranted only where it clearly appears
that “upon no hypothesis whatever is there sufficient substantial evidence” to support the
conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.)
3. Applicable Law
(a) Conspiracy
“A conviction of conspiracy requires proof that the defendant and another person
had the specific intent to agree or conspire to commit an offense, as well as the specific
intent to commit the elements of that offense, together with proof of the commission of
an overt act ‘by one or more of the parties to such agreement’ in furtherance of the
conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416.) Conspiracy to commit
murder requires proof that the defendant was “one of the participants who harbored the
specific intent to kill.” (People v. Petznick (2003) 114 Cal.App.4th 663, 680-681.)
It is not necessary to show that the conspirators met and actually agreed to commit
the offense which was the object of the conspiracy. Instead, the agreement or unlawful
design of conspiracy may be proved by circumstantial evidence. (People v. Zamora
(1976) 18 Cal.3d 538, 559.) “The circumstances from which a conspiratorial agreement
may be inferred include ‘the conduct of defendants in mutually carrying out a common
illegal purpose, the nature of the act done, the relationship of the parties [and] the
interests of the alleged conspirators . . . .’” (People v. Superior Court (Quinteros) (1993)
13 Cal.App.4th 12, 20-21.)

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(b) Attempted Murder
“Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee
(2003) 31 Cal.4th 613, 623.) “Intent to unlawfully kill and express malice are, in
essence, ‘one and the same.’ . . . Express malice requires a showing that the assailant
‘“‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the
result will occur.’ . . . .”’” (People v. Smith (2005) 37 Cal.4th 733, 739, citations
omitted.)
Intent to kill is rarely proved by direct evidence; rather, it must usually be inferred
from circumstantial evidence. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-
1208.) Indeed, “One who intentionally attempts to kill another does not often declare his
state of mind either before, at, or after the moment he shoots. Absent such direct
evidence, the intent obviously must be derived from all the circumstances of the attempt,
including the putative killer’s actions and words. . . .” (People v. Lashley (1991) 1
Cal.App.4th 938, 945-946.)
Furthermore, “[t]o be guilty of attempted murder, the defendant must intend to kill
the alleged victim, not someone else.” (People v. Bland (2002) 28 Cal.4th 313, 328.)
Where, however, the defendant intends to kill one victim (the primary victim), and the
“means employed” in attempting to kill the primary victim “create a zone of harm around
that victim, the factfinder can reasonably infer that the defendant intended [to kill] all
who are in the anticipated zone.” (Id. at pp. 329-330.) The defendant’s intent to kill
others in the anticipated zone of harm or kill zone is concurrent with his intent to kill the

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primary victim. A concurrent intent to kill everyone within an anticipated “kill zone”
may be inferred from “‘the nature and scope of the attack.’” (Ibid.)9
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.’”
(People v. Bland, supra, 28 Cal.4th at pp. 329-330.)
In People v. Vang (2001) 87 Cal.App.4th 554, two defendants shot multiple
rounds at two occupied dwellings, using “high-powered, wall-piercing weapons.” (Id. at
pp. 557-558, 564.) Multiple attempted murder convictions were affirmed against both
defendants -- one for each person in the two dwellings -- even though the defendants may
have intended to target only one person in each dwelling and could not see and were not
9 In accordance with this principle, the jury was given CALJIC No. 8.66.1, which
stated: “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 that victim’s vicinity. [¶] Whether a
perpetrator actually intended to kill the victim, either as a primary target or as someone
within a [‘kill zone’] [zone of risk] is an issue to be decided by you.”

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even necessarily aware of how many other people were in each dwelling. (Id. at p. 564.)
The court said, “The jury drew a reasonable inference, in light of the placement of the
shots, the number of shots, and the use of high-powered, wall-piercing weapons, that
defendants harbored a specific intent to kill every living being within the residences they
shot up. . . . The fact they could not see all of their victims did not somehow negate their
express malice or intent to kill as to those victims who were present and in harm’s way,
but fortuitously were not killed.” (Id. at pp. 563-564.)
4. Analysis and Conclusions
Here, substantial, circumstantial evidence showed that all three defendants agreed
to kill Justin and specifically intended to kill Justin. The evidence also showed that all
three defendants concurrently intended to kill anyone who either was or may have been in
the line of fire of the bullets defendants fired at the front door and front window area of
the Salazar house. These persons included Jeramie, Ronald, Christina, Michael, and
Denise.
First, Reyes told Justin she had a bullet with his name on it, and she was going to
call her brother, Varela, and “shoot up” Justin’s house. She also told Justin that he and
his father, Ronald, were “lying mother-fuckers,” indicating she knew or at least believed
that Justin and Ronald had accused her of cheating on Roque. Then, after Reyes called
Varela in Perris, Benton drove Armster and Varela to Moreno Valley, and Reyes met
with Armster and Varela outside Roque’s house. Immediately thereafter, all three
defendants got into Benton’s Taurus, and Benton drove defendants to Briana Street and
the Salazar house.

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Benton drove defendants by the Salazar house several times. Varela was already
armed. Armster stopped at a friend’s house and obtained a “throw away” handgun. Then
defendants returned to the Salazar house. From the passenger side of the Taurus, Armster
and Varela simultaneously opened fire on the front door and front living room window
area of the house. Together, they fired five or more shots. One bullet pierced the front
door, and others struck the top front windowsill and eaves of the house.
Based on this evidence, the juries could have reasonably inferred that Reyes told
Armster and Varela she wanted to kill Justin by “shooting up” the Salazar house, and kill
anyone else who might get in the way. The juries could have also reasonably inferred
that Armster and Varela shared Reyes’s specific intent to kill Justin, and her concurrent
intent to kill anyone else in the Salazar house, based on their conversations with Reyes
and their actions of firing five or more shots at the front of the Salazar house.
Varela argues that only three of the six people in the Salazar house at the time of
the shooting, namely, Justin, Michael, and Denise, were in the kill zone, that is, near the
front door where the shots were fired. The other three, he argues, were not in the kill
zone. Ronald was upstairs looking out Jeramie’s bedroom window, and Christina and
Jeramie were in the kitchen. Valera reasons that here, unlike in Vang, there was no hail
of bullets, no evidence of the use of a high velocity weapon, and “no evidence that shots
were indiscriminately fired at the entire residence, which might arguably make the entire
residence and all persons located therein with[in] a kill zone.”
We disagree with Varela’s view of the evidence and the kill zone doctrine.
Defendants’ act of firing five or more shots at the Salazar house showed they harbored a

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specific intent to kill Justin, and a concurrent, specific intent to kill anyone else who
might have been in their line of fire. In Vang, the court concluded that “[t]he jury drew a
reasonable inference, in light of the placement of the shots, the number of shots, and the
use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to
kill every living being within the residences they shot up. . . . The fact they could not see
all of their victims did not somehow negate their express malice or intent to kill as to
those victims who were present and in harm’s way, but fortuitously were not killed.”
(People v. Vang, supra, 87 Cal.App.4th at pp. 563-564.)
Here, too, the juries drew a reasonable inference, in light of the number of shots
fired at the house, and the use of at least one weapon strong enough to pierce a security
door and front door, that defendants intended to kill everyone who might have been in
their line of fire. This includes all six persons who were in the house. The fact that
Ronald, Christina, and Jeramie were not in the immediate area where the defendants’
bullets happened to land, or that defendants could not see and did not know that six
persons were in the house, does not negate their express malice and intent to kill
everyone who might have been in their line of fire. Defendants’ actions evidenced an
intent to kill everyone who was in the house.
In sum, substantial evidence supports defendants’ convictions for conspiracy in
count 1, because the evidence showed that all three defendants conspired to kill Justin
and specifically intended to kill Justin. Substantial evidence also supports defendants’
convictions for attempted murder in counts 2 through 6, because the evidence showed
that all three defendants specifically intended to kill Justin, and concurrently intended to

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kill everyone else who was in the Salazar house and who either was or may have been in
the way of the bullets defendants fired at the house.
B. The Prosecutor Did Not Improperly Vouch for the Credibility of Witness Benton
Armster contends the prosecutor vouched for the credibility of Benton during her
rebuttal case, by eliciting testimony from Benton that the judge, not the prosecutor, was
the final arbiter of whether he had testified truthfully at trial. This, Armster argues,
suggested that the judge or the prosecutor had taken steps outside the record to assure
Benton’s truthfulness.
Armster also claims the prosecutor vouched for Benton’s credibility during her
opening statement, and again during her rebuttal argument, by making statements
suggesting she was personally assuring the jury of Benton’s credibility. Varela and
Reyes join these claims without further argument. We conclude that no improper
vouching occurred.10
1. Applicable Law
A prosecutor is not permitted to vouch for the credibility of a witness based on her
personal experiences or beliefs, or on other evidence outside the record. (People v. Frye
10 As a preliminary matter, the Attorney General argues defendants have waived
or forfeited their improper vouching claims, because none of them objected to or sought
curative admonitions regarding any of the prosecutor’s statements in the trial court. (See,
e.g., People v. Visciotti (1992) 2 Cal.4th 1, 79 [failure to object and request admonition
precludes review of improper vouching claim on appeal, where admonition could have
cured any harm].) In anticipation of this argument, defendants alternatively argue that
their trial counsel were ineffective in failing to object and request admonitions.
Notwithstanding whether defendants have failed to preserve their improper vouching
claims for appeal, we find the claims without merit.

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(1998) 18 Cal.4th 894, 971.) Improper vouching generally “‘“involves an attempt to
bolster a witness by reference to facts outside the record.”’” (People v. Huggins (2006)
38 Cal.4th 175, 206.) Thus, it is improper vouching for a prosecutor to offer the
impression that the prosecutor or the government has taken steps, outside the record, to
compel, assure, or guarantee a witness’s truthfulness at trial. (People v. Frye, supra, at p.
971; United States v. Brown (9th Cir. 1983) 720 F.2d 1059, 1073-1074.)
2. The Judge as the Final Arbiter of Benton’s Truthfulness
We first address Armster’s claim that the prosecutor improperly vouched for the
credibility of Benton during her rebuttal case, when she established that the judge, rather
than she, was the final arbiter of Benton’s truthfulness pursuant to the terms of Benton’s
plea agreement. In order to place this evidence in context, we briefly recount the defense
evidence that preceded it.
(a) Background
Armster testified in his own defense, and Armster’s version of events suggested
that Benton was not credible. Thus, the prosecutor recalled Benton during her rebuttal
case. In her direct examination of Benton, the prosecutor established that, unlike
Armster, Benton did not see a Hispanic man run toward the Taurus and fire shots. Nor
did he hear anyone in the Taurus mention seeing such a man. Benton also contradicted
other aspects of Armster’s testimony.
The prosecutor also asked Benton why he had decided to talk to or cooperate with
the district attorney’s office. Benton responded that his wife and children had asked him
to, and he denied that anyone had threatened or coerced him into talking to the district

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attorney’s office. Next, the prosecutor showed Benton a copy of his plea agreement, and
established that he had not been forced or coerced into signing it. The prosecutor also
established that, pursuant to the agreement, Benton pleaded guilty to unspecified charges
in exchange for a 22-year 4-month prison sentence.
In cross-examining Benton on behalf of Armster, Attorney Bruce Karey attacked
Benton’s credibility by showing he had avoided “three or four different life sentences” by
entering into the plea agreement. Karey also showed that Benton had not been entirely
truthful with deputies following his arrest. Karey then established that Benton had not
been sentenced as of the time of trial, and suggested his plea agreement gave him a
motive to testify, not truthfully, but to what the prosecutor wanted him to say. Karey
asked Benton, “The deal that you’ve made with the People is not complete until you’ve
been sentenced?” (Italics added.) Benton answered, “I guess so. I guess that’s correct.”
Karey then asked, “If you did not testify in this trial, you would not get the deal you
made. Is that your understanding?” (Italics added.) Benton answered, “Correct.”
In the prosecutor’s redirect examination of Benton, the following colloquy took
place:
“[Prosecutor:] “And so that we’re clear, that No. 11 said -- it says a judge of the
Superior Court shall be the final arbiter. It’s not me, right? It’s your understanding that
I’m not [the one] to make the final determination about the quality of your testimony; is
that right?
“[Benton:] Okay. That’s what it says.

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“[Prosecutor:] And it’s not anybody in my office who was the final arbiter as to
the truthfulness of your testimony, and you initialed that part that said it’s a judge of the
Superior Court, right?
“[Benton:] Correct.”
Benton’s plea agreement was later admitted into evidence on the prosecution’s
motion, and without objection. Then, in closing argument, the prosecutor said, “And so
that we’re clear and so that you recall that [Benton] was clear, there was nothing that
the district attorney did. It is up to the judge. She is the final arbiter . . . .” (Italics
added.)
(b) Analysis
Armster argues that, by pointing out to the jury that the judge was the final arbiter
of whether Benton testified truthfully, the prosecutor improperly “implied that the
government had taken steps to assure the veracity of witness Benton’s testimony.”
(Underlining omitted.) More specifically, Armster argues, “[t]he clause in the plea
agreement whereby a trial judge was the arbiter of whether Benton was being truthful [1]
indicated to the jury that the government had taken steps to compel [Benton] to be
truthful . . . [2] implied that the government had taken steps to assure the veracity of
Benton’s testimony . . . and [3] portrayed the prosecutor with the assistance of a judge as
the guarantor of Benton’s truthfulness.” We disagree.
Nothing in Benton’s plea agreement or the fact the judge was the “final arbiter” of
Benton’s truthfulness at trial implied or suggested that the judge, the prosecutor, or

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anyone else had taken steps, either on or off the record, to compel, assure, or guarantee
Benton’s truthfulness.
Furthermore, the prosecutor had a duty to disclose to the jury anything her office
had done to induce Benton to testify, including the existence of his plea agreement.
(People v. Frye, supra, 18 Cal.4th at p. 971 and cases cited.) And, although the
prosecutor was not necessarily required to present a verbatim recitation of the terms of
the plea agreement (see ibid.), her rebuttal point that the judge, not she, was the final
arbiter of Benton’s truthfulness was a fair response to Attorney Karey’s point, made in
cross-examining Benton, that Benton “would not get the deal [he] made” unless he
testified truthfully. This point suggested that the prosecutor would determine Benton’s
truthfulness, and Benton had a motive, based on his plea agreement, to testify to what the
prosecutor wanted him to say. The prosecutor’s rebuttal point that the judge was the final
arbiter of Benton’s truthfulness was a proper response to these suggestions.
Armster’s reliance on United States v. Brown, supra, 720 F.2d. 1059 and United
States v. Roberts (9th Cir. 1980) 618 F.2d 530 is misplaced. Both cases stand for the
proposition that it is impermissible vouching for a prosecutor to imply that the
government has taken steps outside the record to assure the veracity of its witnesses.
Both cases are distinguishable from the present case, because both cases involved
improper vouching based on evidence outside the record. (United States v. Brown, supra,
at pp. 1069-1073 [prosecution presented evidence that witnesses could be believed
because their plea agreements required them to submit to polygraph tests]; United States
v. Roberts, supra, at pp. 535-536 [prosecution argued that witness could be believed

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because police detective, who did not testify but was present in court, was there to assure
he carried out his plea agreement and testified truthfully].)
Here, in contrast, the prosecutor did not tie Benton’s credibility to any evidence
outside the record. She did not suggest that Benton should be believed because the judge
was the final arbiter of his truthfulness for purposes of his plea agreement. Nor did she
suggest that she or the judge had any means of verifying Benton’s truthfulness. Thus, the
evidence that the judge, and not the prosecutor, was the final arbiter of Benton’s
truthfulness did not constitute improper vouching.
3. The Opening Statement and Rebuttal Argument Remarks
In her opening statement to the jury, the prosecutor said, “You’re going to find, I
think, that [Benton] is a very open and honest and meek individual.” And in closing
argument, the prosecutor, referring to Benton, said, “And he stood up and he said, ‘This
is what I know,’ and he did so as best he could.” Armster argues that, by making these
remarks, the prosecutor personally assured the jury of Benton’s credibility. We disagree.
Neither of the prosecutor’s remarks personally assured the jury that Benton would
be or was a credible witness, or constituted impermissible vouching. The opening remark
told the jurors what the prosecutor believed they would find based on their own
assessment of Benton and his testimony -- that is, that Benton was “open and honest” and
credible. The rebuttal remark expressed the prosecutor’s view of what the evidence had
shown -- that is, that Benton had testified truthfully. As such, both remarks were
permissible. (See. e.g., People v. Ward (2005) 36 Cal.4th 186, 216.)

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Regarding the “I think” reference in the opening remark, Armster points to United
States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1147, footnote 3, where the court
said, “In drawing the line between acceptable statements grounded on inferences from the
evidence and unacceptable statements representing an improper suggestion of personal
opinion, [courts] have been especially sensitive to the form of prosecutorial statements --
so that use of the prefatory phrase ‘I submit’ has been preferred to the use of ‘I think,’ in
part because the latter is more likely to lead the jury to give undue credit to the statement
that follows . . . .” (Italics added.)
Here, however, the prosecutor’s use of “I think” in her opening remark, when
considered in context, was not at all likely to cause the jury to give undue credit to the
remark or construe it as a personal assurance of Benton’s credibility. Instead, the jury
must have understood the remark as telling the jurors what the prosecutor thought they
would conclude based on their assessment of Benton and his testimony -- that is, that
Benton was credible. (People v. Cunningham (2001) 25 Cal.4th 926, 1001 [where claim
is based on comments made by prosecutor before the jury, question is whether there is a
reasonable likelihood the jury construed or applied the complained-of remarks in an
objectionable fashion].)
C. There Was No Evidence to Support Instructions on the Lesser Included Offense of
Attempted Voluntary Manslaughter in Counts 2 Through 6
Varela and Reyes contend the trial court erroneously failed to instruct their juries
sua sponte in counts 2 through 6, on the lesser included offense of attempted voluntary
manslaughter based on a sudden quarrel or heat of passion. Armster joins this contention

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without additional argument. We conclude there was no evidence whatsoever to support
instructions on attempted voluntary manslaughter based on heat of passion. Thus, the
trial court did not err in failing to give such instructions sua sponte.
None of the defendants requested attempted voluntary manslaughter instructions
in the trial court. Nevertheless, a trial court has a duty to instruct sua sponte on all lesser
included offenses where there is substantial evidence that the lesser included offense, but
not the greater, was committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.) A
killing “upon a sudden quarrel or heat of passion” can negate the malice element of
murder, and reduce the offense of murder to voluntary manslaughter. (People v. Lee
(1999) 20 Cal.4th 47, 58-59; § 192, subd. (a).)
The factor that distinguishes the “heat of passion” form of voluntary manslaughter
from murder is provocation. “The provocation . . . must be caused by the victim
[citation], or be conduct reasonably believed by the defendant to have been engaged in by
the victim.” (People v. Lee, supra, 20 Cal.4th at p. 59.) The provocation must also
“cause an ordinary person of average disposition to act rashly or without due deliberation
and reflection. [Citations.] ‘Heat of passion arises when “at the time of the killing, the
reason of the accused was obscured or disturbed by passion to such an extent as would
cause the ordinarily reasonable person of average disposition to act rashly and without
deliberation and reflection, and from such passion rather than from judgment.”’
[Citation.]” (Ibid.)
Furthermore, where “‘sufficient time has elapsed between the provocation and the
fatal blow for passion to subside and reason to return, the killing is not voluntary

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manslaughter . . . .’” (People v. Breverman, supra, 19 Cal.4th at p. 163.) “Heat of
passion may not be based upon revenge.” (People v. Burnett (1993) 12 Cal.App.4th 469,
478.) “[R]evenge does not qualify as a passion that will reduce a killing to
manslaughter.” (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704.)
Here, there was no evidence that any of the defendants were reasonably provoked
into attempting to kill Justin or anyone else in the Salazar house. Furthermore, it is
specious to argue there was any such evidence. Defendants’ belief that Justin had falsely
claimed that Reyes had cheated on Roque and was responsible for Roque breaking up
with Reyes was wholly insufficient, as a matter of law, to provoke a reasonable person of
average disposition into attempting to kill Justin or anyone else in the Salazar house.
Defendants clearly acted out of calculated revenge, rather than the heat of passion
without due deliberation or reflection.
Furthermore, even if defendants had been adequately or reasonably provoked, a
significant amount of time passed between the time they learned of Justin’s cheating
accusation and the time they shot at the Salazar house. After Reyes learned of Justin’s
accusation, she called Varela, who then spoke to Armster and Benton about driving from
Perris to Moreno Valley to meet Reyes at Roque’s house. Even by the time Armster,
Varela, and Benton had reached Roque’s house and met with Reyes, Reyes, Armster, and
Varela had had sufficient time to reflect on their actions and cool off. And, after leaving
Roque’s house, Armster, Varela, Reyes, and Benton drove by the Salazar house several
times, headed back toward Roque’s house, went to a friend’s house where Armster
retrieved a gun, then went back to the Salazar house where they finally fired as many as

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five shots at the house. By the time defendants shot at the Salazar house, they had had
more than sufficient time to reflect on their actions.
Varela further contends this court should reduce his attempted murder convictions
to attempted voluntary manslaughter because, he argues, there is no evidence he is guilty
of attempted murder, only attempted voluntary manslaughter. Armster and Reyes join
this contention without further argument. We reject this contention because, as
discussed, there is no evidence that any of the defendants committed attempted voluntary
manslaughter in counts 2 through 6, but not attempted murder.
D. The Trial Court Properly Refused to Instruct on Two “Lesser Related” Offenses in
Counts 2 Through 6
At trial, Reyes’s counsel requested, but the trial court refused to give, instructions
on the “lesser related” offenses of assault with a deadly weapon (§ 245, subd. (a)(1)), and
discharge of a firearm at an inhabited dwelling (§ 246), on the attempted murder charges
in counts 2 through 6. On this appeal, Reyes contends the court’s refusal to give these
lesser related offense instructions violated her Sixth and Fourteenth Amendment rights to
a jury trial and due process, including her right to present a defense. She argues the
instructions were “intrinsic to [her] defense” because there was evidence from which her
jury could have reasonably concluded that, although she wanted to frighten Justin by
having her brother Varela “‘shoot up his house,’” she did not harbor an intent to kill

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Justin or any member of his family. Armster and Varela join this contention without
further argument.11
We reject the contention as to all defendants. In People v. Birks (1998) 19 Cal.4th
108, the state Supreme Court held that trial courts do not have a duty to instruct on lesser
related offenses without the prosecutor’s permission. A rule requiring instructions on
lesser related offenses, the court said, “gives the defendant a superior trial right to seek
and obtain conviction for a lesser uncharged offense whose elements the prosecution has
neither pled nor sought to prove.” (Id. at pp. 112-113.) The court also observed that, in
Hopkins v. Reeves (1998) 524 U.S. 88, 96-97 [118 S.Ct. 1895, 141 L.Ed.2d 76], the
United States Supreme Court said it had “never suggested” that defendants are entitled to
instructions on lesser related offenses under the federal Constitution. (People v. Birks,
supra, at p. 124.) We are bound by the decision in Birks. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455; People v. Martinez (2002) 95 Cal.App.4th
581, 586.) Reyes’s contention is in direct conflict with Birks, even though she
characterizes her proffered lesser related offense instructions as defenses.
E. The Juries Were Adequately Instructed on the Dewberry Principle
Reyes contends the trial court prejudicially erred in failing to instruct her jury sua
sponte on the Dewberry principle in relation to the premeditated attempted murder
11 As noted, of the five attempted murder charges in counts 2 through 6, Reyes
was found guilty only on counts 2 and 6. Armster and Varela were found guilty on all
five counts of attempted murder.

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charges in counts 2 through 6. Armster and Varela join this contention without further
argument.
The Dewberry principle holds that, where the evidence is sufficient to support a
finding of guilt of a charged offense (here, premeditated attempted murder) and a lesser
included offense (here, attempted murder without premeditation), the trial court must
instruct the jury, sua sponte, that if it has a reasonable doubt which crime the defendant
committed, it must give the defendant the benefit of the doubt and find him guilty of the
lesser crime, provided it is convinced beyond a reasonable doubt that the defendant is
guilty of the lesser crime. (People v. Dewberry, supra, 51 Cal.2d at pp. 555-556; accord,
People v. Musselwhite (1998) 17 Cal.4th 1216, 1262.)
Here, although CALJIC No. 17.1012 was not given, the juries were given CALJIC
No. 8.67. This instruction specifically instructed the juries that the People had the burden
of proving the truth of the willful, deliberate, and premeditated allegations in counts 2
through 6, and if the juries had a reasonable doubt whether the allegations were true, it
had to find them not true. (CALJIC No. 8.67.) Thus, CALJIC No. 8.67 satisfied the trial
court’s duty to instruct on the Dewberry principle in relation to the premeditated
attempted murder charges.
12 CALJIC No. 17.10 states, in pertinent part: “If you are not satisfied beyond a
reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless
convict [him] [her] of any lesser crime, if you are convinced beyond a reasonable doubt
that the defendant is guilty of the lesser crime.”

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F. The Section 12022.53 Enhancements Were Properly Imposed on Count 1
Valera contends his section 12022.53, subdivisions (c) and (d) enhancement on his
conspiracy conviction in count 1 must be stricken, because section 12022.53 applies only
to crimes that are listed in section 12022.53, subdivision (a), and conspiracy is not one of
the listed crimes. Armster joins this claim without further argument. The claim does not
apply to Reyes, because she was not charged with any section 12022.53 enhancements.
Valera misreads section 12022.53, subdivision (a). The statute provides that it
applies to, among other crimes, “[a]ny felony punishable by death or imprisonment in the
state prison for life.” (§ 12022.53, subd. (a)(17).) Conspiracy to commit murder is a
crime punishable by death or imprisonment in the state prison for life. More specifically,
the punishment for conspiracy to commit murder is “that prescribed for murder in the
first degree.” (§ 182, subd. (a).) First degree murder is punishable “by death,
imprisonment in the state prison for life without the possibility of parole, or
imprisonment in the state prison for a term of 25 years to life.” (§ 190, subd. (a).) The
phrase, “imprisonment in the state prison for life” encompasses a 25-year-to-life term.
(See People v. Lopez (2005) 34 Cal.4th 1002, 1007 and cases cited.)
G. Section 654 Issues
Varela and Reyes contend that the imposition of consecutive sentences on their
conspiracy and attempted murder convictions violate section 654. Thus, they argue,
either their conspiracy or attempted murder sentences must be stayed. Armster joins this
contention, without further argument. Reyes further contends that her consecutive

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sentence for assaulting Denise with a firearm in count 7 should be stayed, in light of her
separate sentence for shooting at an occupied dwelling in count 8.
As pertinent here, all three defendants received 25-year-to-life sentences for their
conspiracy convictions in count 1, and consecutive life sentences, with MPEDs of seven
years each, for their respective attempted murder convictions (counts 2 and 6 for Reyes,
counts 2 through 6 for Armster and Varela). Reyes was also sentenced to one year for
assaulting Denise with a firearm (count 7), plus seven years for shooting at an inhabited
dwelling (count 8). In contrast, Armster and Varela received three-year, stayed sentences
for assaulting Denise with a firearm (count 7), and the midterm of five years for shooting
at an inhabited dwelling (count 8).
We agree that defendants’ 25-year-to-life sentences on count 1 (conspiracy to
commit murder) should have been stayed in view of their separate life sentences on count
2 (attempted murder of Justin). We disagree, however, that Reyes’s sentence on count 7
should have been stayed in view of her separate sentence on count 8.
1. Overview of Section 654
Section 654, subdivision (a) provides, in pertinent part, that “[a]n act or omission
that is punishable in different ways by different provisions of law shall be punished under
the provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision. . . .”
“Section 654 precludes multiple punishments for a single act or indivisible course
of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) “The purpose of
section 654 is to prevent multiple punishment for a single act or omission [or indivisible

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course of conduct], even though that act or omission [or indivisible course of conduct]
violates more than one statute and thus constitutes more than one crime. . . .” (People v.
Liu (1996) 46 Cal.App.4th 1119, 1135; People v. Harrison (1989) 48 Cal.3d 321, 335.)
Section 654 is intended to ensure that a defendant’s punishment is “commensurate with
his culpability.” (People v. Perez (1979) 23 Cal.3d 545, 551.)
“It is defendant’s intent and objective, not the temporal proximity of his offenses,
which determine whether the transaction is indivisible.” (People v. Harrison, supra, 48
Cal.3d at p. 335.) If the defendant’s crimes “were merely incidental to, or were the
means of accomplishing or facilitating one objective, [the] defendant may be found to
have harbored a single intent and therefore may be punished only once.” (Ibid., citing
Neal v. State of California (1960) 55 Cal.2d 11, 19.) Multiple punishment is proper,
however, where the defendant entertained multiple criminal objectives which were
independent of each other. (People v. Harrison, supra, at p. 335, citing People v.
Beamon (1973) 8 Cal.3d 625, 639.)
2. Analysis
(a) Defendants’ Separate Sentences on Count 1 Violate Section 654
Section 654 prohibits separate punishment for both conspiracy to commit murder
and the substantive offense of murder, where the sole object of the conspiracy was to
commit murder. (People v. Moringlane (1982) 127 Cal.App.3d 811, 819, disapproved on
another ground in People v. Jones (1991) 53 Cal.3d 1115, 1144-1145; see also People v.
Hernandez (2003) 30 Cal.4th 835, 866 and People v. Lawley (2002) 27 Cal.4th 102, 171-
172.) Where, however, a conspiracy has “broader or different objectives” than the

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commission of the substantive offense, separate punishment for the conspiracy is not
prohibited. (People v. Ramirez (1987) 189 Cal.App.3d 603, 615-616.)
Reyes and Varela argue that their intent and objective in conspiring to commit
murder (count 1) and in attempting to murder Justin (count 2) was the same, namely, the
murder of Justin. Thus, they argue, their consecutive sentences on count 1 violate section
654, in light of their separate sentences on count 2. The Attorney General argues that the
conspiracy to commit murder charge in count 1 had a broader and different objective than
the murder of Justin or anyone else. This broader and different objective was “to
criminally terrorize and intimidate anyone from interfering in Reyes’s relationships in the
future. By making an example of Justin, [defendants] were committing an act of street
terrorism substantially similar to that typically committed by gang members to coerce
‘respect’ from others.”
We agree with Reyes and Varela, and disagree with the Attorney General. There
was no evidence that any of the defendants committed “an act of street terrorism similar
to that typically committed by gang members to coerce ‘respect’ from others.” Indeed,
there was no expert testimony concerning what types of acts are “typically” committed
by criminal street gangs or for what purposes. (See People v. Gardeley (1996) 14 Cal.4th
605, 617-626.) Thus, even when the evidence is viewed in the light most favorable to the
judgment, there is no evidence that defendants’ conspiracy to commit murder in count 1
had a broader and different objective than the murder of Justin.
However, to the extent defendants argue that any of their sentences on counts 2
through 6 should have been stayed based on their separate sentences on any of their other

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attempted murder convictions, they disregard the rule that section 654 does not apply to
“‘crimes of violence against multiple victims.’” (People v. King (1993) 5 Cal.4th 59, 78.)
Here, there were separate victims in each of counts 2 through 6, namely, Justin Salazar
(count 2), Jeramie Salazar (count 3), Christina Salazar (count 4), Ronald Salazar (count
5), and Michael Rodarte (count 6). Thus, separate sentences were properly imposed on
counts 2 through 6.
(b) Reyes’s Separate Sentences on Counts 7 and 8 Did Not Violate Section 654
Reyes argues she had a single intent and objective, that of “shooting up the Salazar
residence,” in assaulting Denise with a firearm (count 7) and in shooting at an inhabited
dwelling, the Salazar house (count 8). She also argues that each of the six victims of
count 8 was also a victim of either (1) count 7, namely, Denise or (2) the attempted
murders in counts 2 through 6. Thus, she argues, there were no “leftover victims” to
support her separate sentence for assaulting Denise with a firearm.
We disagree with Reyes’s analysis. As Reyes acknowledges, all six occupants of
the house were victims of section 246. But Reyes, unlike Armster and Varela, was not
convicted of nor separately punished for attempting to murder Jeramie, Christina, or
Ronald in counts 3, 4, and 5. Nor was she convicted of any other crimes involving these
three victims. Thus, here, Jeramie, Christina, and Ronald were all “leftover” victims of
Reyes’s section 246. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1780-1785
[separate punishment for shooting at occupied vehicle and assault did not violate section
654 where each crime involved at least one different victim].) Thus, the trial court

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properly refused to stay Reyes’s sentence on count 7, and properly stayed Armster’s and
Varela’s sentences on count 7.
H. Upper Term and Consecutive Sentences
In her opening brief, Reyes claimed the trial court’s imposition of the aggravated
sentence on count 8 and consecutive sentences on counts 1, 2, 6, 7, 8, and 9 violate her
right to a jury trial under Blakely, because the sentences were not based on facts found
true by a jury beyond a reasonable doubt. Armster and Varela joined these claims
without further argument. They were each sentenced to consecutive terms on counts 1
through 6 and 8, but neither was sentenced to an aggravated term.
On January 5, 2007, we filed an unpublished opinion rejecting defendants’ claims.
Then, on January 22, the Supreme Court issued its decision in Cunningham v. California
(2007) 549 U.S. ___ [127 S.Ct. 856, 860, 166 L.Ed.2d 856) (Cunningham), holding that
the imposition of an upper term sentence under California’s determinate sentencing law
(DSL), based on a judge’s factual findings, violates a defendant’s federal constitutional
right to a jury trial. The high court further held that the middle term is the maximum
sentence a judge may impose under the DSL -- without the benefit of facts reflected in
the jury’s verdict -- that is, facts found true by the jury beyond a reasonable doubt -- or
admitted by the defendant.
On January 31, Reyes petitioned this court for a rehearing on her sentencing issues
based on Cunningham. She argued that the rule of Cunningham applies not only to upper
term sentences but also to consecutive sentences that are imposed based on a judge’s
findings of fact. We granted the petition solely as to the issues raised in the petition,

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namely, the effect of the Cunningham decision on the trial court’s imposition of the upper
term and consecutive sentences. We requested and received a response from the People.
Varela and Armster joined the petition without further argument.
The People argue that defendants have forfeited their Blakely/Cunningham claims
because they failed to object to their respective upper term and consecutive sentences in
the trial court on the grounds they were not based on findings by a jury beyond a
reasonable doubt. (People v. Hill (2005) 131 Cal.App.4th 1089, 1103 [defendant
forfeited Blakely claim for failing to raise it at post-Blakely sentencing hearing].) The
People point out that Blakely was filed on June 24, 2004, well before defendants were
sentenced in May and June 2005, and Cunningham merely extended the rule announced
in Blakely and earlier in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348,
147 L.Ed.2d 435].
We disagree that defendants have forfeited their claims of sentencing error as set
forth in the petition for rehearing. Cunningham was decided well after defendants were
sentenced and was the first United States Supreme Court decision to apply the rule of
Apprendi and Blakely to an upper term sentence imposed under the DSL. A defendant
cannot waive or forfeit a legal claim that was not recognized at the time of his trial or
sentencing. (People v. Esquibel (2006) 143 Cal.App.4th 645, 660.)
Alternatively, the People argue that the Cunningham error in sentencing Reyes to
the upper term on count 8 was harmless beyond a reasonable doubt. They argue that any
reasonable jury would have found at least one of the trial court’s factors in aggravation
true beyond a reasonable doubt. (Washington v. Recuenco (2006) ___ U.S. ___ [126

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S.Ct. 2546, 165 L.Ed.2d 466]; People v. Sengpadychith (2001) 26 Cal.4th 316, 327.)
They further argue that, because a single aggravating circumstance is sufficient to
authorize the imposition of the upper term under state law (People v. Osband (1996) 13
Cal.4th 622, 728-729), a determination that a jury would have found at least one
aggravating circumstance true beyond a reasonable doubt necessarily renders a
Cunningham error harmless beyond a reasonable doubt.
As the People point out, in imposing the upper term on count 8 (shooting at an
inhabited dwelling), the trial court said: “In my opinion, Ms. Reyes was the fulcrum of
which the lever everybody else operated. She was the instigating factor and the leader of
all of this. Without her, it wouldn’t have happened. [¶] I realize she had no record, but I
think she is going to get significantly less time than her male cohorts, which doesn’t seem
adequately just to me, since it was all her fault in the first place. I find this to be
sufficiently aggravating a factor to impose the seven years, the aggravated term for the
principal count.”
Accordingly, the trial court clearly found that Reyes “induced others to participate
in the commission of the crime or occupied a position of leadership or dominance of
other participants in its commission,” an aggravating circumstance under rule 4.421(a)(4)
of the California Rules of Court.13 The People argue that this particular finding was
based on uncontested and overwhelming evidence. They note that Reyes insisted that
Armster and Varela go through with the shooting despite their initial pleas to Reyes to
13 All further references to rules are to the California Rules of Court.

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not “do this,” and that Reyes further incited Armster and Varela by informing them that
the people inside the Salazar house had guns.
First, we agree that a jury would have found beyond a reasonable doubt that Reyes
occupied a position of leadership as it relates to the underlying conduct. The nature of
her role was uncontested. Furthermore, the trial court was aware that Reyes was only 18
years old when the crimes were committed and, moreover, that she had no prior criminal
record, the only factor in mitigation. (Rule 4.423(b)(1).) Nevertheless, the trial court
clearly found that Reyes’s lack of a prior record was substantially outweighed by just one
factor in aggravation, namely, that she induced others to participate in the shooting and
played a leadership role. (Rule 4.421(a)(4).) We therefore agree with the People that the
Cunningham error was harmless beyond a reasonable doubt . (See Neder v. United States
(1999) 527 U.S. 1, 18 [119 S.Ct. 1827, 144 L.Ed.2d 35 [failure to instruct on element of
offense harmless beyond reasonable doubt where element supported by uncontroverted
evidence at trial].)
Lastly, we reject all three defendants’ claims that the imposition of consecutive
sentences violated their right to a jury trial under Cunningham. As the Third District
Court of Appeal recently observed in People v. Hernandez (2007) 147 Cal.App.4th 1266
(Hernandez), Cunningham did not address the constitutionality of concurrent or
consecutive sentences under section 669. Thus, People v. Black (2005) 35 Cal.4th 1238,
1261 through 1264, which held that Blakely does not apply to the imposition of
concurrent or consecutive sentences under section 669, remains good law on this point.

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As articulated in Hernandez, a defendant is not entitled to have a jury determine
the facts a court may rely upon in imposing a concurrent or consecutive term under the
DSL because, unlike the DSL’s statutory presumption in favor of the middle term
(§ 1170, subd. (b)), there is no statutory presumption in favor of concurrent or
consecutive sentencing under section 669. Instead, section 669 imposes an affirmative
duty on a trial court to determine whether the terms of imprisonment for multiple
offenses are to be served concurrently or consecutively. A defendant who commits
multiple crimes is entitled to the trial court’s exercise of this discretion, but he is not
entitled to a statutory presumption in favor of concurrent sentencing. (Hernandez, supra,
147 Cal.App.4th at pp. 1270-1271.) This “‘makes all the difference insofar as judicial
impingement upon the traditional role of the jury is concerned.’” (Id. at p. 1271, quoting
Blakely, supra, 542 U.S. at p. 309.)
I. The Trial Court Did Not Abuse Its Discretion in Imposing the Upper or Consecutive
Terms
Reyes further contends the trial court abused its discretion in imposing
consecutive terms on counts 1, 2, 6, 7, 8, and 9 and the upper term on count 8. Armster
and Varela join these contentions without further argument. As noted, Armster and
Varela were sentenced to consecutive terms on counts 1 through 6 and 8, but neither of
them received any upper term sentences. We conclude that the trial court did not abuse
its discretion in imposing any of the sentences.
“[A] trial court has discretion to determine whether several sentences are to run
concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse,

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the trial court’s discretion in this respect is not to be disturbed on appeal. [Citation.]
Discretion is abused when the court exceeds the bounds of reason, all of the
circumstances being considered. [Citations.]” (People v. Bradford (1976) 17 Cal.3d 8,
20; § 669.)
The criteria affecting the trial court’s decision to impose consecutive rather than
concurrent sentences are set forth in rule 4.425. The rule states: “Any circumstances in
aggravation or mitigation may be considered in deciding whether to impose consecutive
rather than concurrent sentences, except (i) a fact used to impose the upper term, (ii) a
fact used to otherwise enhance the defendant’s prison sentence, and (iii) a fact that is an
element of the crime shall not be used to impose consecutive sentences.”
A trial court also has “considerable discretion” to impose an upper term sentence
where “‘after a consideration of all the relevant facts, the circumstances in aggravation
outweigh the circumstances in mitigation.’” (People v. Black, supra, 35 Cal.4th at p.
1247; § 1170, subd. (b); rule 4.420(b).) In imposing an upper term sentence, the trial
court may not consider any fact that is an essential element of the crime itself. (People v.
Black, supra, at p. 1247.)
Examples of aggravating factors are listed in rule 4.421, and include facts relating
to the crime and the defendant. Facts relating to the crime include whether “(1) The
crime involved great violence, great bodily harm, threat of great bodily harm, or other
acts disclosing a high degree of cruelty, viciousness, or callousness; [¶] . . . [¶] (3) The
victim was particularly vulnerable; [¶] (4) The defendant induced others to participate
in the commission of the crime or occupied a position of leadership or dominance of

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other participants in its commission; [and] [¶] . . . [¶] (8) The manner in which the
crime was carried out indicates planning, sophistication, or professionalism.” (Rules
4.421(a), 4.408(a); People v. Black, supra, 35 Cal.4th at p. 1247.)
(a) Reyes’s Sentence
At Reyes’s sentencing hearing, defense counsel argued that the trial court should
exercise its discretion to impose concurrent sentences, in light of Reyes’s lack of criminal
history, her age at the time of the crimes (she was only 18 years old), her willingness to
accept responsibility for her actions, and the fact “there was no particularized intent or
knowledge of the existence of the separate victims involved.”
In imposing Reyes’s sentence, the trial court noted that, although Reyes did not
have a criminal record, she was “the instigating factor and the leader,” and without her
the crimes would not have occurred. The court also noted that the crimes were planned,
Reyes had shown no remorse, and Reyes was going to receive a lighter sentence than
Armster or Varela. In imposing the upper term on count 8, the court observed that the
victim, Denise, was “a sitting duck, particularly vulnerable inside the house.”
Reyes argues she should not be punished more severely because she was going to
receive a lighter sentence than Armster or Varela, or because she was not personally
armed and did not discharge a firearm. She argues the trial court’s “attempt to make
[her] sentence commensurate with that of her co-defendants was capricious and
arbitrary.” She also argues that Denise was “no more vulnerable than any other victim of
a drive-by shooting.”

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Regardless of how Reyes characterizes the trial court’s reasons for its sentencing
choices, the court did not abuse its discretion in sentencing Reyes to consecutive terms on
counts 1, 2, 6, 7, 8, and 9, or in imposing the upper term on count 8. As the trial court
said, Denise was “particularly vulnerable inside the house.” Denise did not know any of
defendants, and was in no way involved in the argument with Justin at Roque’s house, or
the accusation that Reyes had cheated on Roque.
Additional factors in aggravation -- other than Denise’s particular vulnerability --
support the trial court’s imposition of consecutive sentences on counts 1, 2, 6, 7, 8, and 9.
Each of these crimes involved great violence, great bodily harm, the threat of great bodily
harm, and other acts disclosing a high degree of cruelty, viciousness, or callousness.
(Rule 4.421(a)(1).) Reyes also induced Armster and Varela to participate in the crimes,
and Reyes occupied a position of leadership or dominance. (Rule 4.421(a)(4).) Finally,
the manner in which the crimes were carried out indicated “planning, sophistication, or
professionalism.” (Rule 4.421(a)(8).) As the trial court indicated, there were numerous
circumstances in aggravation which outweighed the only circumstance in mitigation,
Reyes’s lack of a prior criminal record. (Rule 4.423(b)(1).)
(b) Armster and Varela
Armster and Varela have not offered any reason why the trial court abused its
discretion in sentencing them to consecutive terms on counts 1, 2, 3, 4, 5, 6, and 8. Nor
do we discern any reason. As discussed, each of these crimes involved great violence,
great bodily harm, the threat of great bodily harm, and other acts disclosing a high degree
of cruelty, viciousness, or callousness. (Rule 4.421(a)(1).) And, the manner in which

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each crime was carried out indicated “planning, sophistication, or professionalism.”
(Rule 4.421(a)(8).) Each of these factors supported each consecutive term.
IV. DISPOSITION
The judgments are modified to stay each defendant’s sentence and enhancements,
if any, on count 1. The matter is remanded to the trial court with directions to amend
each defendant’s abstract of judgment to reflect this modification, and to forward
amended copies of each abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ King
J.
We concur:
/s/ McKinster
Acting P.J.
/s/ Miller
J.

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