Filed 5/4/15 P. v. Partida CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

JOSE FRANCISCO P ARTIDA,
Defendant and Appellant. B253091
(Los Angeles County Super. Ct. No. BA387117)

APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald
H. Rose , Judge. Affirmed with directions.

Peter Gold , under appoi ntment by the Court of Appeal, for Defendant and Appellant

.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Tannaz Kouhpainezhad, Deputy Attorney s General, for Plaintiff and Respondent.2

Defendant and appellant Jose Francisco Partida (defendant) appeals from his convictions of murder, attempted murder, attempted robbery , and possession of a gun by
felon . He contends that the convictions must be reversed because the trial court erred in giving two jury instructions (CALCRIM Nos. 1863 and 1403) without first modifying them, and because his murder and attempted murder convictions were unsupported by substantial evidence of p remeditation and deliberation. Defendant also contends that the trial court abused its discretion in refusing to unseal juror information, and erred in imposing a consecutive sentence as to one of the attempted robbery counts rather than staying the term imposed. Finally , defendant points to an error in the abstract of judgment, which both defendant and respondent ask to be corrected to accurately reflect the oral pronouncement of judgment. We order the trial court to issue a corrected abstract of judgment. However, fin ding no merit to defendant’s remaining contentions, we affirm the judgment.
BACKGROUND
An amended information charged defendant with the following crimes: count 1,
the murder of Plutarco Salguero Soriano (Soriano), in violation of Pen al Code, section
187 , subdivision (a); 1 count 2, the attempted willful, deliberate, and premeditated murder of Carlos Delgado (Delgado) ( § § 664 , 187, subd

. (a) ) ; count 3 , pos session of a firearm by
a felon (§ 12021, subd

. (a)(1) ) ; and c ounts 4 and 5, attempted first degree res idential robbery ( § § 664 , 211 ). As to all five counts, the amended information alleged that
defendant had suffered three prior convictions for which he served prison terms within the meaning of section 667.5, subdivision (b). As to counts 1, 2, 4, and 5, the information alleged that defendant personally and intentionally used and discharged a firearm
,

caus ing great bodily injury and death to the victims within the meaning of section 12022.53, subdivisions (b ) through (d). In addition the amended informat ion alleged that
the murder was committed by defendant while he was engaged in the commission of the
crime s of robbery and burglary, within the meaning of section 190.2, subdivision (a)(17).

1 All further statutory references are to the Penal Code unless otherwise indicated.3

A jury found defendant guilty of all counts as charged and found true all special allegations. On December 2, 2013, the trial court sentenced defendant to life in prison without the possibility of parole as to count 1 , enhanced by a consecutive term of 25 years to life under section 12022.53, subdivision (d), plus cons ecutive but stayed enhancements under subdivisions (b) and (c) of that section, of 10 and 20 years respectively. As to count 2, defendant was sentenced to a life term, plus a consecutive
term of 25 years to life pursuant to section 12022.53, subdivision ( d) , as well as consecutive but stayed enhancements under subdivisions (b) and (c) of that section, of 10 and 20 years respectively. T he court imposed the high term of three years as to count 3 , 2 and the high term of six years as to court 4 , plus firearm e nhancements, all stayed under
section 654. As to count 5, the court sentenced defendant to a consecutive high term of
six y ears, plus firearm enhancements, and stayed only the firearm enhancements under
section 654. Defendant’s total unstayed sentence wa s life without parole plus 56 years to
life. Defendant received presentence custody credit of 861 actual days, and was ordered to pay mandatory fines and fees

. Defendant filed a timely notice of appeal from the judgment

. Prosecution evidence Delgado live d in East Los Angeles with Ana Lilian Zepeda (Zepeda) and Soriano, Zepeda’s brother. On January 30, 2011, h e was home watching television and drinking
beer when Soriano came home and went into his bedroom with two women Delgado had
never seen before. Zep eda had already gone to bed. Magaly Gonzalez (Gonzalez) was one of the two women. She testified that she was acquainted with defendant and knew him by his nicknames Boomer and Downer. Gonzalez was also acquainted with the other woman, D a mari u s Teresa Ros ales (Rosales),
whose nickname was “Lil ’ Girl.” Sometime after midnight Gonzalez was walking with Rosales when Soriano, who was unknown to them, approached and asked whether they

2 For purposes of count 3, felon in possession of a firearm, def endant stipulated that he had suffered the alleged prior convictions , and the prosecution dismissed the three prison prior allegations.4

wanted to have a good time with him. They agreed and both women got into hi s car, went with him to buy beer, and then went to his house. After awhile they left the house to buy marijuana and then returned to Soriano’s bedroom. When Soriano bought the marijuana the women noticed he had a lot of money.
Rosales communicated to Gon zalez by text message to the effect that she had a plan to rob Soriano, had taken his car keys, and that she had arranged for her friend “Boomer” to pick her up. When d efendant arrived in a van with another person, Gonzalez and Rosales
were about to leave with him when Gonzalez realized that she had forgotten her marijuana . S he went back for it and Soriano came out and gave it to her

. Gonzalez then got back into the van and was taken home. Later, after Rosales sent a text message to Gonzalez, “We messed up,” Gonzalez called Soriano several times throughout the morning to check whether he was alive. Gonzalez testified that defendant was a member of the Clarence Street gang and that she was afraid that “they” were going to come looking for her, possibly t o kill her, because she was “ratting someone out” in her testimony. Gonzalez denied knowing the other man in the van with defendant. He was Jesus Rolon (Rolon), who testified that he was at the home of his friend “Junior” that night
with defendant and oth ers when d efendant asked Junior to give him a ride in his van to pick up two girls

. Junior had been drinking, so he asked Rolon to drive defendant in his van. Rolon testified that when they stopped for gas along the way, defendant took the keys from him and drove the van himself. Rolon did not resist because defendant was aggressive and intimidating; he had gang tattoos and Rolon believed that defendant was a member of the Clarence Street g ang. After dropping Gonzalez off at her home, Rolon testified tha t defendant drove
around and then went back to the house where they had picked up the two women. Rolon
was in the back of the van and although he could not hear much of the conversation between defendant and Rosales, who were in the front, he did hear the words, “wallet,” “in the drawer,” and “money.” Rolon saw Rosales get out of the van
, walk toward the gate and out of sight , and then return to the van, where she gestured “desperately ,” while5

saying something that Rolon could not hear . D efendant then go t out of the van and walked toward the gate. Rolon did not see defendant go into the house but soon he heard
three or four noises like firecrackers. Rosales , who remained just outside the open passenger door of the van until defendant returned, said, “Oh my god. Hurry. Hurry. ”
As defendant drove away
, Rosales said, “Oh, my god. What did you do?” It was noisy in the back of the van where Rolon still sat, and he did not hear a response. Rolon denied
seein g a gun in defendant’s hand. Rolon testified t hat he was concerned about his safety and his family’s safety, and was afraid that gangs or defendant’s f riends would come
after him. Delgado testified that he sat in his pajamas watching television in the living room
while the two women were in the bedroo m with Soriano
, as well as when they went out
and came back . He did not know what they were doing in the bedroom. Delgado was still watching television when the women left for the last time. A short time later, Delgado saw Soriano sitt ing by himself in the driveway. The next time Delgado saw Soriano, the latter was coming into the house with a

man Delgado had never before seen

. The man, later identified as defendant, appeared to
be holding his right arm around Soriano’s waist , while walking against the wall sideways in a “weird” way. When t hey stopped in front of Delgado
, Delgado saw that defendant

was holding a gun

. Defendant stepped a round Soriano, moved the gun back and forth, point ing it at Soriano and then at Delgado , and said, “Give me the money. ” Soriano asked Delgado to give him the money, which confused him , because Soriano had not given Delgado any money. As Delgado got up to get money from his pants , Soriano
lifted a small stool and swung it toward defendant’s face

. Delgado then heard abou t four gunshots and saw muzzle flash . Soriano fell but defendant continued to stand with the gun in his hand , so Delgado ran across the living room to defendant
, where they struggled

over th e gun. U nable to dislodge the gun from defendant , Delgado push ed him and was
then shot in the face

. Even a fter defendant shot him, Delgado tried to take the gun away , but tripped over Soriano’s body and fell

. As Delgado lay on the floor defendant fired again and Delgado felt a bullet strike him in the neck. As Delga do tried to get up he saw6

defendant jump over Soriano’s body and run outside. Zepeda came out of the bedroom to find Delgado bleeding. Delgado was taken to the hospital where he was treated for two bullet wounds, one on the right side of his face and one in the neck

. T he bullet that entered his face traveled through the sinus cavity and came to rest at the base of the left side of his skull . The
bullet that entered his neck injured the carotid artery and lodged in the soft tissue in front
of the breastbo ne. The bullets were not removed

. Soriano died of multiple gunshot wounds. Deputy Medical Examiner Ajay
Panchal testified that Soriano had been struck with four bullets in an undetermined order
, t hree of which would have caused his death. One bullet ent ered Soriano’s left eye injuring multiple lobes of the brain , causing ra pid or instant unconsciousness; one entered
his left torso and perforated the left lower lung ; another fractured his left arm ; and a
fourth bullet entered Soriano’s left torso and pass ed through the heart and right lung. Dr. Panchal explained soot and stippling. Soot, or b urned particles of gunpowder
, could be deposited in a wound caused by a handgun fired in close range, not more than six inches away

. Stippling consisted of unburned particles of gunpowder that could strike
the skin and cause pinpoint abrasions when a gun is fired from within a half an inch up to
two feet from the target, unless blocked by something such as thick clothing

. Dr. Panchal
concluded that as Soriano was not wearing thick clothing, but simply a white shirt, and
there was no soot or stippling found on the body or clothing , the gun that killed Soriano was at least two feet away from him when fired

. Zepeda testified about waking up to gunfire and finding Delgado and her brother
on the floor. She briefly saw a man running away outside but could not identify him

. When she tried to go outside Delgado , who had regained consciousness
, stopped her. FBI Special Agent Chad Fitzgerald, an expert in analyzing cell phone connections and signals, analyzed records of the relevant c ell tower and call evidence relating to the cell phones used by Soriano, Rosales, Gonzalez, and defendant on January 30, 2011. He generally confirmed the movements of these individuals as describe d by other prosecution witnesses.7

Michael Bosillo ( Bosillo ) , c ustodian of records for Metro P.C.S. , testified regarding the cell phones registered to Henessy Martinez and Michael Partillo, later identified by Sheriff’s Sergeant Dom e nick Recchia as Rosales and defendant. Bosillo explained that because Metro P.C.S. wa s a prepaid cell phone company which did not
offer service on credit
, accounts could be opened under false names

. Metro P.C.S. call
records revealed that on January 30, 2011, between 1:4 0 a.m. and 1:46 a.m., the following text messages were sent from the cell phone later identified as belonging to Rosales, to the cell phone later identified as used by defendant: “Dick, never mind. Call now. Please, please, foo [ph onetic ]. I’m not playing. S erio [phonetic]”; and, “Okay

. C all in ten. I’m gonna jack this fool

. ‘ R anfla y feria ,’ I got the keys .” The texts were signed
, “ Lil ’ Girl. ” Although the text messages were sent and received, there was n o way to know whether defendant saw or read them

. Defense evidence
Defe ndant testified that Rosales was a friend who he referred to as “Lil’ Girl” ; but
Gonzalez was a mere acquaintance whom he disliked

. On the night of the shooting he had attended a friend’s birthday party
, had been drinking and was sli ghtly intoxicated

. He denied using drugs or marijuana. He received a text message from Rosales suggesting that he meet a friend of hers, but that did not work out

. About three hours
later Rosales sent another text message saying in effect that she neede d help

. Thinking she was in danger, he showed the message to his friends and asked for a ride. Defendant’s friend
, Junior suggested that Rolon drive defendant in Junior’s van, since
Junior had been drinking and defendant had no d river’s license.
Defendan t claimed he had just met Rolon and did not know his name and that he drove the van after stopping for gas because he knew the area better than Rolon

. Defendant drove to the area Rosales directed and saw her talking to Soriano , who acted “kind of weird ” a s soon as he saw the van. D efendant became angry when he saw Gonzalez was with Rosales, and Gonzalez did not want to get into the van because she
knew defendant did not like her . Gonzalez intended to walk home instead
, but defendant insisted on driving h er

. In the van , Rosales told defendant that Gonzalez had forgotten8

something at the house , so he drove her back . Gonzales retrieved what she had left, and
returned about two minutes later. Defendant then drove Gonzalez home

. Rosales then suggest ed they go back and “come up on this fool.” Defendant understood this to m ean “take his stuff.” He repeatedly told her he did not want to go back and continued to drive in the direction of Rosales’s house, intending to drop her off there, but then she said she had forgotten her “stuff” and insisted that they go back.
Defendant drove Rosales back to Soriano’s ho u se . Since there was no parking in
the area Rosales got out of the van while defendant drove around and finally parked illegally. Defendant became inpat ient waiting for Rosales so he decided to walk to the
house to see what she was doing . On the way defendant saw Rosales sitting in the driver’s seat of a truck with Soriano on the passenger side . The y appeared to be arguing. Soriano looked in defendant’ s direction with surprise. Defendant told Rosales , “Let’s get out of here,” and she replied that Soriano would not return her stuff . D efendant became agitated and told Soriano in an unpleasant tone in Spanish to give him Rosales’s stuff.
Defendant admit ted that he was carrying a loaded revolver, but denied displaying the

gun. Soriano said the stuff was in side , so they went through the yard and into the house,
which was dark except for light from the television.
Rosales wa ited in the van wh ile defendant went into the house with Soriano
, although d efendant did not know what it was that Soriano refused to give back to
Rosales

. Defendant denied walk ing ab normally or having his arm around Soriano, and
claimed that Soria no was in the lead

. Soriano stopped in front of Delgado, who was watching television, and told him to give defendant the money . Defendant claims that he
still had not drawn his gun and that he had not asked for money. Suddenly, something came flying toward his face
, and he was struck in the head a couple times and then pushed

. D efendant claimed he then pulled o ut his gun and started shooting because he
feared for his life . He did not know how many times he fired or whether he hit someone.
He did not see anyone on the floor
, and because he thought they had run away, he did not look down for them, but instead ran out side to the van and drove away

. Defendant
denied jump ing over the men

.9

Defendant claimed he never intended to steal from or rob anyone, and that after fleeing he became nauseated and threw up. Defendant did not call 911
, did not need
treatment for the lumps caused by the blows to his head, and did not tell anyone about
incident . He fled because he feared prosecution. Defendant acknowledged that he was known by two nicknames, Dow ner and Boomer, and that he was a member of the Clarence Street gang

. He was given the name
Downer from his “ friends or whoever, people who jumped me in

. ” Defendant claimed he used a false name to purchase a cell phone because he could not pay the fees c harged for unpaid phone bills. Defendant admitted that although he was previously convict ed of felon in possession of a firearm, he alwa y s carried a loaded gun

. On the night of the shooting he carried a .22

- caliber revolver which he had loaded himself wi th six bullets
, all of which were fired that night

. Defendant bought the gun illegally on the street

. Defendant denied that he read the text message from Rosales that said, “ Okay. Call in ten. I’m gonna jack this foo l

. ‘ Ranfla y feria , ’ I got the keys ” ; however, he
admitted that he c alled Rosales about a minute or two later. Defendant explained that ranfla was Spanish for car , that feria was Spanish for money , and that to “jack” someone meant to rob the person. Defendant claimed that Rosales did not m ention a wallet or

money and they had no such conversation in the van as described by Rolon. He denied ever demanding money. Defendant saw the video recording of Gonzalez ’s police
interview in which she told investigators about a plan to rob Soriano and gave a description of a conversation in the van in which she asked to be taken home because she wanted nothing to do with the plan , and told the others not to do anything crazy

. 3 Defendant testified that it “didn’t happen.”

3 Neither the video nor a transcript of the interview has been made part of the record on appeal.10 DISCUSSION
I. CALCRIM No. 1863 : c laim of right instruction
Defendant contends that although the trial court gave a requested claim of right
instruction , the court erred in failing to modify it to fit his theory of defense. At defendant’s request, the trial court read CALCRIM No. 186 3 to the jury. The portion of the instruction relevant to this issue was the following: “ If the defendant obtained property under a claim of right, he did not have the intent required for the crime required of robbery. The defendant obtained property un der a claim of right if he believed in good faith that he had a right to the specific property or specific amount of money and he openly took it. ” 4 Defendant does not contend that the instruction is an incorrect statement of law, but argues that because it was inapplicable to his particular theory of defense the trial court should have added language to the effect that a defendant’s good faith belief in the right to property can be based upon a good faith belief that he was helping to reclaim another pers on’s property. Defendant was charged with killing Soriano in the course of a robbery. “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. ” (§ 211.) “A good faith claim of right to title or ownership of specific property taken from another can negate the element of felonious taking (a taking accomplished with intent to steal) necessary to establish theft (§ 484) or robbery ( § 211).” ( People v. Tufunga (1999) 21 Cal.4th 935, 945 ( Tufunga ) , boldface and italics omitted .)

4 The remainder of CALCRIM No. 1863 was read as follows: “ In deciding whether the defendant believed that he had a right to the property and whether he held that belief in good faith, you should consider all of the facts known to him at the time he obtained the property alo ng with all the other evidence in the case. The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the bel ief was not held in good faith. The claim of right defense does not apply if the claim arose from an activity commonly known to be illegal or known by the defendant to be illegal. If you have a reasonable doubt about whether the defendant had the intent required for robbery, you must find him not guilty of robbery. ”11

As defendant points out, a claim of right instruction must be given when substantial evidence supports “ a good faith belief by a defendant, tried as an accomp lice, that he was assisting his co principal retake the principal’s property

. . . .” ( People v.
Williams (2009) 176 Cal.App.4th 1521, 1528

- 1529 ( Williams ) .) Because there was such
substantial evidence in Williams , “the trial court erred in refusing to gi ve a modified
versi on of CALCRIM No. 1863.” ( Id . at p. 1529, fn. omitted.) Respondent contends both that the issue has been forfeite d due to defendant’s failure to object to the wording of CALCRIM No. 1863 , and that no modification was

necessary

. We agr ee that no modification was necessary, as CALCRIM No. 1863 does not preclude a claim of right based upon a request from the rightful owner. However, we conclude that the trial court was not required to give the instruction, modified or unmodified, as defe ndant failed to demonstrate that the request was supported by
substantial evidence. We evaluate the evidence supporting a claim of right instruction under the defendant’ s account of events , and any d oubts a s to the sufficiency of the
evidence to support t he instruction should be resolved in defendant’s favor

. ( Tufunga
, supra , 21 Cal.4th at p. 944.) However, “ a trial court has no obligation to instruct sua

sp onte on a defense supported by ‘minimal and insubstantial’ evidence [citation]

. . . .” ( People v . Barnett (1998) 17 Cal.4th 1044, 11 52 ( Barnett ) .)
Defendant contends that the evidence was sufficient because he testified in his
defense that he went into the house only to retrieve property belonging to Rosales. The good faith belief in a claim of righ t must relate to specific property. ( Tufunga
, supra , 21 Cal.4th at p. 945.) And that belief must be a subjective one. ( Barnett
, supra ,17 Cal.4th at p. 11 52 .) Thus, a claim of right defense requires identification of the property
, a s well

as evidence of how it relates to the defendant’s claim of right. (See People v. Alvarado (1982) 133 Cal.App.3d 1003, 1022.) Here, d efendant testified that he did not know what “stuff” Soriano had reportedly refused to give to Rosales , and there was no evidence of

any circumstances that would suggest that she had any right to any particular property

. Moreover, defendant did not testify that he subjectively thought that Rosales had a right to any property

. Indeed, defendant admitted that before Rosales told defendant t hat she12

h ad forgotten her stuff, she expressed a desire to “come up on this fool
, ” which d efendant
understood to m ean “take his stuff.” Rosales apparently r epeatedly expressed her desire to take Soriano’s property, as defendant testified he kept saying th at he did not want to go
back and relented only after she c laimed that she had forgotten her stuff

. In short, defendant had no idea what property belonged to Rosales and had no reason to believe that she had a right to whatever the property might have been

. We conclude that the evidence of defendant’s claim of right defense was “minimal and insubstantial”; thus, no claim of right instruction was required. ( Barnett
, supra , 17 Cal.4th at p. 11 52 .) As no instruction was required, the trial court did n ot err in failing to modify the instruction given

. II. CALCRIM No. 1403 : limited purpose of gang activity Defendant contends that the trial court erred in reading CALCRIM No. 1403 to the jury without modification.
The trial court instructed: “ You may consid er evidence of gang activity only when you evaluate the credibility or the believability of a witness. You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or th at he has a disposition to commit a crime. ” Defendant did not object to the admission of the evidence of his gang membership
but objected to the instruction because it allow ed the jury to consider the gang affiliation
evidence in evaluating his credibility or believability. Defendant does not contend that
the instruction was incorrect in allowing the jury to use such evidence to evaluate other
witnesses ’ testimony , and he acknowledges that gang evidence may be relevant to establish a witness’ s bias or cred ibility

. (S ee People v. Ayala (2000) 23 Cal.4th 225,
276

. ) Defendant also acknowledges that CALCRIM No. 1403 is properly given when gang evidence is admitted to provide a plausible explanation for a witness’s reluctance to testify

. (See People v. Samani ego ( 2009) 172 Cal.App.4th 1148, 1167

- 1169 .) Defendant points out that although this rationale might apply to Rolon and Gonzalez, it did not apply

to his own testimony

. Neither defendant nor respondent has provided authority that would permit, prohibit, or limit the use of CALCRIM No. 1403 where the defendant13

testifies. Nevertheless , defendant contends that because evidence of gang affiliation can be inflammatory , the instruction should have been modified to make clear that the instruction did not apply to defendant

. Respondent relies on the general rule that “‘ [b]y taking the stand, defendant put his own credibility in issue and was subject to impeachment in the sa me manner as any other witness.’ [Citations.] ” ( People v. Doolin (2009) 45 Cal.4t h 390, 4 38.) Defendant’s argument, however, is that the evidence did not impeach him in the same manner as the other witnesses, as he was not reluctant to testify and expressed no fear of gangs

. Respondent counters that it was not likely that that jury would imp roperly use any gang evidence in evaluating his credibility, because the instruction made clear that the jury was

not to conclude from the gang evidence that the defendant had a bad character or disposition to commit a crime. We agree as t his was the only part of the instruction
which referred specifically to defendant; otherwise it referred to witness credibility in general. We also note that the prosecutor did not mention defendant’s gang membership anywhere in her final arguments. Instead she pointed to the ways in which defendant’s testimony conflicted with other testimony, in particular Rosales’s text messages about robbing Soriano, the bits of conversation about a wallet and money which Rolon overheard in the van, and defendant’s inability to identi fy any property which he supposedly went into the house to retrieve , as well as the manner in which he shot the
victims

. Regardless, assuming the trial court was required to limit the consideration of defendant’s gang membership to evaluating the credibili ty of witnesses other than defendant, any error i n failing to do so was harmless

. Defendant did not deny that he shot Soriano and Delgado. The primary credibility issue presented by defendant’s testimony was his claim that he did not go into the house fo r a felonious purpose , but to retrieve Rosales’s property , and once there he was attacked and defended himself

. As we have previously determined above, his testimony was insufficient to support his claim of right defense because he failed to identify spec ific property, any facts demonstrating his or Rosales’s right to the property, or his ignorance of facts that would make that belief14

unreasonable . (See Tufunga
, supra , 21 Cal.4th at p. 945; Barnett
, supra , 17 Cal.4th at p.
11 52 ; People v. Alvarado
, supra , 133 Cal.App.3d at p. 1022.) Thus, even if defendant’s testimony had been believed
, it would not have provided a defense.
Moreover , it is not reasonably likely that the jury would have found defendant’s testimony credible even if the instruction had been limited as defendant suggests. The evidence demonstrating defendant’s intent to rob Soriano was overwhelming. It was clearly Rosales’s intent to rob Soriano, as she expressed that intent in a text message to Gonzalez. Rosales also sent defendant a messa ge about her intent before he picked her up, writing, “I’m gonna jack this fool. ‘ R anfla y feria ,’ I got the keys.” Defendant knew that “jack” meant to rob, and although he denied ever reading this text message , he
admitted having called Rosales a minute or two later. O nce defendant picked up Rosales
, he certainly knew of her intent, as he admitted that Rosales suggested they go back and “come up on this fool,” which he understood to mean “take his stuff.” Rolon overheard parts of a conversation between defendant and Rosales, including the words, “wallet,” “in the drawer,” and “money.” Belying defendant’s claim that he merely intended to retrieve Rosales’s property, defendant did not ask Rosales to identify the “stuff” that Soriano refused to give back to he r; and then, armed with a fully loaded firearm, defendant went into the house with Soriano while Rosales remained in the van and thus unavailable to identify the property

. The only reasonable inference to be drawn from such evidence was
that defendan t had no intention of retrieving property belonging to Rosales, but intended to carry out Ros ales’s plan of robbing Soriano. We conclude that there is no reasonable probability that defendant would have
obtained a more favorable result had the trial court instructed the jury to consider defendant’s gang membership solely to evaluate the credibility of witnesses other than defendant. The omission of that language was thus harmless under the test of People v.
Watson (1956) 46 Cal.2d 818, 836. W e also conclu de beyond a reasonable doubt that the omission of such language did not contribute to the verdicts, and thus find it harmless
under the test of Chapman v. California (1967) 386 U.S. 18, 24.15

III. Substantial evidence of premeditation
Defendant contends tha t there was insufficient evidence of premeditation to support his convictions of first degree murder and willful, deliberate, and premeditated attempted murder. He asks that we reduce his first degree murder conviction to second degree murder and that we strike the jury’s finding that the attempted murder w as deliberate and premeditated. When a criminal conviction is challenged as lacking evidentiary support, “the court must review the whole record in the light most favorable to the judgment below to
deter mine whether it discloses substantial evidence

-- that is, evidence which is reasonable, credible, and of solid value

-- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ( People v. Johnson (1980) 26 Cal.3d
5 57, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318

- 319.) Reversal on a substantial evidence ground “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [ the conviction ] .’ [Cit ation.]” ( People v. Bolin (1998) 18 Cal.4th 297, 331.) “‘ An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have
concluded otherwise

. [ C itation

. ]’ [Citation.] ” ( People v. Halvorse n (2007) 42 Cal.4th 379, 419.) “‘ The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt

. . . .’” ( People v. Johnson
, supra , at p. 576 .) “ The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation] , and to special circumstance allegations [citation]

. ” ( People v. Maury (2003) 30 Cal.4t h 342, 396.) “All murder which is perpetrated by means of

. . . willful, deliberate, and premeditated killing

. . . is murder of the first degree.” (§ 189.) Murder committed in the perpetration o f attempted robbery is also first degree murder under the felony

- murder
rule

. ( People v. Elliot (2005) 37 Cal.4th 453, 469.) Defendant acknowledges that the jury found true the special circumstance of attempt ed robbery
, but contends that the felony

- murder theory fails due to the asserted instructional error regarding CALCRIM16

No. 1863

. As defendant does not contend that the attempted robbery finding is unsupported by substantial evidence, and we have rejected his claim of instructional

error, we must affirm defendant’s first degree murder conviction based upon the felony

murder rule

. Further, defendant has not demons trated that the evidence which supports a finding that the murder or the attempted murder was premeditated , was insufficient

. Defendant cites People v. Anderson (1968) 70 Cal.2d 15, 26

- 27 ( Anderson ) in which the California Supreme Court formulated guideli nes based upon evidence of three factors, planning, motive, and manner of killing
, “to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerat ions rather than mere unconsidered or rash impulse

. [ C itation.]” ( People v. Perez (1992) 2 Cal.4th 1117, 1125 ( Perez ).) The Anderson guidelines are merely descriptive and did not purport to define or rewrite the elements of first degree murder
, alter th e substa ntive law of murder in any way, or change the traditional standards of appellate review. ( Perez , at p. 1125.) Using such guidelines, defendant contends there is no evidence that defendant planned to kill either victim
, that he had a motive to kill , or that he killed in a manner suggesting anything but “a spur of the moment in response t o a robbery gone bad.” Defendant rejects the planning factor, claiming the only plan shown by the evidence was the plan to go into the house to rob Soriano. Defend ant rejects the motive factor, because the p rosecut or did not suggest a motive in argu ment, other than a motive to rob the
victims. Finally, defendant minimizes the significance of the manner in which the victims were shot, because “[t]he fact that a slay ing was unusually brutal, or involved multiple wounds, cannot alone support a determination of premeditation .” ( People v.
Alcala (1984) 36 Cal.3d 604, 626

- 627 , italics added.) Initially, we observe that d espite acknowledging the traditional standards of

r eview, defendant’s analysis depends entirely upon a review of the evidence in the light most favorable his own arguments, drawing inferences that would defeat the judgment, and referring mostly to his own testimony, despite any conflicts with other evidenc e. For17

example, defendant cites his own testimony that Soriano twice struck defendant with a wrought iron stool and that defendant shot him in response to the attack. Delgado
however testified that Soriano swung the stool toward defendant’s face, but he did not say that he saw the stool strike defendant. Delgado also testified that defendant remained standing, fired his weapon four times, and remained standing after Soriano fell

. Further, the medical examiner opined that defendant was at least two feet away from Soriano
when he fired all four bullets into him. Thus, contrary to defendant’s view of the evidence, the jury could reasonably infer that Soriano did not come closer to defendant
than two feet and that he did not succe ed in hitting defendant at all. Defendant complains that “[r]espondent has failed to bear its burden of establishing premeditation and deliber ation beyond a reasonable doubt

. ” However, as the judgment is presumed correct, it is the appellant’s burden to demonstrate that the
evidenc e was insufficient to support the verdict. ( People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Defendant does not meet that burden “ by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the
evidence that is in the record in the l ight most favorable to himself.

. . . ‘ [ A ] recitation of only [the appell ant’ s] own evidence or a general unsupported denial that any evidence

su stains the findings is not the “ demonstration ” contemplated under the rule. ’ [ Citation.] ” ( Id . at pp. 1573

- 1574 .) Moreover, “‘ [t] he Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive. ’ [Citation.] ” ( People v. Sanchez (1995) 12 Cal.4th 1, 33, disapproved on another point in People v. Doolin , supra , 45 Cal.4th at p. 421, fn. 22 .) Nor is it necessary that the
Anderson “factors be present in some special combination or that they be accorded a particular weight.” ( People v. Pride (1992) 3 Cal.4th 195, 247 .) Nevertheless
, we agree with respondent that substantial evidence supported all three factors. The victims were, as far as defendant knew, unarmed and alone in their home very late at night , and defendant had armed himself with a loaded firearm before e n tering the
house to rob them . As such facts support “‘ the inference that he planned a violent18

encounter, ’ ” they satisfy the planning factor. ( People v. Elliot
, supra , 37 Cal.4th at p. 471.) Soriano and Delgado were the only witnesses to defendant’s attempted robbery and their struggle could have impeded his escape. Defendant emptied his gun into vital parts of their bodies, ran from the house, and rapidly fled the scene. Under such circumstances, a motive to escape and eliminate witness es may reasonably be inferred. (See People v. San Nic ol a s (2004) 34 Cal.4th 614, 658 [motive to eliminate lone witness
and facilitate escape ].) Finally, we reject defendant’s characterization of the manner of killing as a spur

of

- the

- moment impulse becaus e it was not execution style. A decision made quickly does not preclude a finding of premeditation, as “ premeditation can occ ur in a brief period of time. ‘ The true test is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity and cold, calculated jud gment may be arrived at quickly

. . . .’ [Citations.] ” ( Perez
, supra , 2 Cal. 4th at p. 1127.) Moreover , shooting Soriano in the heart, lungs, and brain while standing two feet away could reasonably be construed as an execution, as could shooting Delgado a second time in the neck after shooting him in the eye failed to kill him. While more brutal attacks with multiple blows may indicate a rash impulse, they can also reasonably imply a

preme ditated intent to make certain the victim died. (See People v. Lewis (2009) 46
Cal.4th 1255 , 1293 [throat cut after strangulation]; People v. Nazeri (2010) 187 Cal.App.4th 1101, 1118 [ numerous blows to the neck
, vital organs , and eye].) In sum, substantia l evidence of planning, motive, and manner of killing supports the reasonable inference that defendant’s intent to kill the victims was premeditated , and

we reject defendant’s contrary inferences

. ( See Perez
, supra , 2 Cal. 4th at p. 1124 .)
IV. Juror infor mation Defendant contends that the trial court erred in denying his motion to disclose juror identification information in order to determine whether any judicial misconduct
occurred which a ffect ed the jury

. The motion was brought pursuant to section s 20 6 and
237 of the Code of Civil Procedure , which permit the trial court to release sealed juror19

identification information if the defendant establishes a prima facie showing of good
cause for the release and there is no compelling interest against such disc losure

. (Code
Civ. Proc., § 237, subd

. (b).) In support of his petition, d efendant submitted the declaration of Brother Carmel
Duca ( Brother Duca) , chaplain for the Los Angeles County Jail , who was sitting in the courtroom, directly opposite the judge, du ring closing arguments. Brother Duca
declared : “When defense counsel was delivering his argument, he mentioned that the victim, Mr. Soriano was probably feeling jealous because [Rosales] had brought the defendant with her. At that point, the Judge start ed frowning and shaking his head while looking a t defense counsel and the jury.” In opposition, the prosecutor represented that defense counsel had told her that
Brother Duca was a friend of defendant’s family, that she observed him sitting and conversing with defendant’s mother throughout the trial
, that she did not see the court make any facial gestures, and that it took Brother Duca a week following the verdicts to come forward with his allegation

. At the hearing on the motion defense counsel did not
de ny these representations, but clarified that Brother Duca was not defendant’s friend, only his chaplain. The trial court denied having made a face at any point, adding: “I make a specific point of appearing to be neutral at all times. In fact, I remembe r [defense counsel’s] argument and the very point at which this allegation is being made, and I made

a very specific point of not looking at the jurors [or] in any way indicating any b e lief on the court’s part as to the validity of any of the argument.”
Th e trial court found that defendant had ma d e an insufficient showing of good
cause and denied the motion. Defense counsel then orally moved for a new trial on the same grounds which the court denied.
We review for an abuse of discretion the trial court’s r uling that the declarations were insufficient to make a prima facie showing of good cause to unseal juror
information. ( Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1096.) Defendant’s showing must be sufficient to support a reasonable belief that th e alleged misconduct
occurred. ( People v. Rhodes (1989) 212 Cal.App.3d 541, 552.) Further, the misconduct20

alleged must be “‘of such a character as is likely to have influenced the verdict improperly.’ [Citation.] ” ( People v. Jefflo (1998) 63 Cal.App.4t h 1314, 1322.) A petition to disclose juror identification information must be supported by more than mere speculation and may not be used as a “‘fishing expedition[]’ by parties hoping to uncover information to invalidate the jury’s verdict.” ( People v. Rhodes
, supra , at p. 552.) Defendant suggests that the court’s expressions may have been unconscious and thus we should give little weight to the court’s disagreement with Brother Duca’s

account. Referring to Brother Duca’s allegations, the trial court s tated that “it did not happen.” In ruling on a motion to disclose juror information, “‘“ [t]he power to judge the credibility of witnesses and to resolve conflicts in the testimo ny is vested in the trial

court ” ’ [citation] , even when the witn esses testify via declarations [ c itation]

. ” ( People v.
Johnson (2013) 222 Cal.App.4th 486, 499.) We thus defer to the trial court’s resolution of conflicting recollections and credibi lity, and do not reweigh the evidence. We find no
abuse of discretion.
V. Consecuti ve term s for attempted robbery an d attempted murder
Defendant contends that the trial court erred in ordering the prison term for the attempted robbery of Delgado (count 5) , to run consecutively to the attempted murder, instead of imposing and staying the term pursuant to section 654. “An 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 omiss ion be punished under more than one

pr ovision.” (§ 654, subd. (a).) Section 654 prohibits punishment for two such crimes arising from an indivisible course of conduct. ( People v. Hester (2000) 22 Cal.4th 290, 294.) “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offens es but not for more than one.” ( Neal v. State of California (196 0 ) 55 Cal.2d 11, 1 9 , disapproved on other grounds by People v. Correa (2012) 54 Cal.4th 331, 334, 336.) However, section 654 does not apply to similar but21

consecutive and different objective s, or to simultaneous but separate objectives. ( People
v. Latimer (1 993) 5 Cal.4th 1203, 1211

- 1212 .) “Because of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an ‘act or omission,’ th ere can be no universal construction which directs the proper application of section 654 in every
instance. [Citation.]” ( People v. Beamon (1973) 8 Cal.3d 625, 636

- 637.) Thus, whether a course of criminal conduct is divisible presents a factual issue fo r the trial court, and we will uphold its ruling if suppo rted by substantial evidence. ( People v. Coleman (1989) 48 Cal.3d 112, 162.) “Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latit ude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and pre sume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” ( People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
A shooting is incidental to a robbery when the defendant’s only intent or objective
for the sho oting is to facilitate the robbery. ( See People v. Hensley (2014) 59 Cal.4th 788, 828.) However, a n act of violence is not incidental to a robbery when it exceeds the
force necessary to commit the robbery . ( People v. Cleveland (2001) 87 Cal.App.4th 263, 272.) A n act of gratuitous violence against a helpless and unresis ting victim is not considered incidental to robbery for the purposes of section 654. ( People v. Nguyen (1998) 204 Cal.App.3d 181, 190 .) In addition, o nce a robbery has been committed, an attempted murder committed to effect an escape is not incidental to the robbery for purposes of section 654 . (See In re Jesse F . (1982) 137 Cal.App.3d 164, 171 .) Here, defendant’s robbery attempt was abandoned when the victims resisted, and

as we previo usly found, substantial evidence supported a reasonable inference that defendant’s motive in shooting Delgado was to facilitate his escape and to eliminate
witnesses

. In addition, defendant exceeded the force necessary to commit the robbery or
to effect h is escape when he shot Delgado in the eye and then again in the neck after22

Delgado had fallen. Substantial evidence thus supports the trial court’s finding that defendant’s intent and objective in committing attempted murder were separate and
distinct fro m his intent and objective to rob the victims. The trial court did not err in imposing consecutive sentences.
V I

. Error in abstract of judgment Defendant points out that although the trial court ordered the sentence as to

count 5 to run consecutively, t he court imposed and stayed the firearm enhancement of 25 years to life

. The abstract of judgment, however, fails to reflect that the enhancement was stayed. Respondent agrees with defendant and both parties ask that we order the trial
court to issue a c orrected abstract of judgment. Since the writing does not accurately reflect the oral pronouncement of judgment we thus order the trial court to correct the abstract of judgmen t

. (See People v. Mitchell (2001) 26 Cal.4th 181, 188.)
DISPOSITION The judgme nt is affirmed. The superior court is directed to prepare an amended
abstr act of judgment accurately reflecting the court’s oral pronouncement of judgment
, in which the firearm enhancement imposed as to count 5 pursuant to section 12022.53
, subdivision (d ) was stayed. The superior court shall then forward certified copies of the
amended abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

____________________________, J. CHAVEZ

We con cur:

__________________________, Acting P. J. ASHMANN

- GERST

__________________________, J. HOFFSTADT