Filed 4/7/14 P. v. Ward CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
LAMONT WARD,
Defendant and Appellant. B243600
(Los Angeles County Super. Ct. No. BA358364)

APPEAL from a judgment of the Superior Court of Los Angeles County, Lance A. Ito, Judge. Affirmed. Emry J. Allen, under appointment by the Court of A ppeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Seth P. McCutcheon, Deputy Attorneys General, for Plaintiff and Respondent.2

A jury convicted defendant Lamont Ward of the first degree murders of Tommie Hayes and Kevin Cohen (Pen. Code
, § 187, subd. (a)), 1 and found true the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3) ) and
murder for fi nancial gain (§ 190.2, subd. (a)(1)). 2 Defendant was sentenced to two consecutive terms of life in prison without parole

. He appeals from the judgment
of conviction, contending: (1) his attorney was ineffective for failing to move to suppress his confes sion ; (2) the evidence was insufficient to support the
defendant ’ s conviction in the killing of Kevin Cohen; (3) the trial court erred by
instruct ing o n the doctrine of transferred intent; and (4) his attorney was ineffective for failing to object to certa in comments by the prosecutor in argument. We disagree with these contentions and affirm the judgment.

BACKGROUND The Killings Shortly before 5:00 a.m. on April 12, 2009 (Easter Sunday), Tommie Hayes and Kevin Cohen were shot to death at the Lamp Lodge, a hotel frequented by
transients on Stanford Avenue between 6th and 7th Streets in the skid row area of Los Angeles. When police arrived, they found Hayes, a security guard at the hotel who also sold drugs there, lying dead on the floor of the television room. They

1 All undesignated section ref erences are to the Penal Code.

2 Defendant was tried jointly with Richard Luna before a separate jury. Defendant ’ s jury alone heard statements defendant made confessing to the murders

. Shanana Flores, who was also charged with the murders, pled guilty to voluntary mansla ughter before trial and testified against defendant and Luna in exchange for a 12

- year sentence

. We affirmed Luna ’ s judgment of conviction in a separate appeal, B244484. In this appeal by defendant, we take our summary of the evidence at trial from our opinion in Luna ’ s case, supplemented by the evidence that was heard by defendant ’ s jury alone.3

found Cohen, who apparently was visiting, lying in the parking lot. Hayes had been shot eight times, with entry wounds in his chin, right side (two wounds), back (four wounds) and left buttock. Three 9

- millimeter or larger caliber slugs were later recovered from his body. Cohen had been shot once, the entry wound being in the left hip, the bullet exiting through his upper right chest. In the television room, police recovered nine .9 millimeter shell cas ings (all
later determined to have been ejected from the same gun) and five bullets. They
also observed several bullet holes in a couch. A window of the television room was broken, and broken glass lay around Cohen ’ s body in the parking lot, suggesting that he had been shot in the television room and jumped through the window to escape.

Shanana Flores ’ Testimony Shanana Flores, an acco mplice in the murders (see fn. 2
, ante ), described the circumstances surrounding the killings. She testified that she and her girlfriend, Maria, frequented th e Lamp Lodge where she and others sold drugs for defendant

. Tommie Hayes ran his own drug business there in competition with defendant

. A couple of days before the murders, defendant and Hayes argued over their drug dealing

. Defendant told Hayes that th e Lamp Lodge was defendant ’ s building, that they were going to have to fight over it, and that one of them

“ needed to be taken out. ” The night before the killings, Flores became upset with Hayes because he was giving Maria heroin in exchange for selling c rack cocaine. Flores ran into
defendant outside the Lamp Lodge and gave him a ride in her truck. Defendant was on the phone and told her that he was “ having a conversation with [o ne of his] boys, ” and that he was “ tired of Tommie ’ s shit ” and “ need[ed] to get rid of him. ”4

He expressed dissatisfaction with “ his boys, ” and asked Flores if she knew anyone who would sell a gun. Flores said yes, remembering having met Richard Luna a month or so earlier at a party, where he displayed a “ .9 Glock ” handgun and t old her, “ Just call me. I ’ ll do anything. ” Flores dropped defendant off at the Lamp Lodge. Later, defendant called
and asked “ what ’ s up with your boy? ” Flores called Luna , picked him up at his house, and drove toward the Lamp Lodge. Defendant called F lores and she told
him that Luna was with her. Flores then acted as the conduit between defendant on the phone and Luna in the car

. Luna asked to buy defendant ’ s gun, but defendant
said that he did not want to sell it. Defendant asked if Luna would “ do the job? ”
Luna a sked what was in it for him. Defendant offered “ anything that is on the body. ” Luna said he wanted additional money as well. Defendant offered $3,000 to $5,000

. Luna agreed. Around 4:32 a.m. (as indicated by a security video from a ne arby building played at trial), Flores and Luna arrived at the Lamp Lodge. Flores park ed nearby,
and she and Luna smoked some methamphetamine. Flores was in phone contact
with d efendant , who told her to drop Luna off in the middle of the blo ck on
Stanfor d. After Luna exited her vehicle, Flores drove around the block and parked

on 7th Street as instructed by defendant

. A few minutes later, Luna returned , angry that defendant had not arranged things for the killing

. Luna complained that “ the guy, ” referr ing to Hayes, was not outside, and that “ Mesquito, ” referring to a resident of the Lamp Lodge named David Amezquita who sold drugs for Hayes, had seen him pull out a gun. Luna said that he was not leaving until he did what he had to do and killed Hayes. At
Luna ’ s direction, Flores called defendant , who promised to “ get this right. ” While on the phone with defendant , Flores heard him tell “ Jeff, ” the manager of the Lamp5

Lodge, to turn off the television monitor and open the door so that Luna could

enter. She also heard him tell Amezquita and other residents to go to their rooms.
Luna left Flores parked on 7th Street and walked toward the Lamp Lodge. Shortly thereafter, Flores heard “ a lot ” of gunshots. Luna returned to Flores ’ truck. He was angry and said that “ nothing was fucking right. Everything was messed

up. ” He complained that he had gotten no money from the body. He struck Flores in the face, and told her that she needed to get him his money or that “ the same thing ” could happen to her child ren. Flores and Luna then drove off.
Flores called defendant and told him that she needed to give Luna some
money. She dropped Luna off at his residence in Boyle Heights, and drove to
defendant ’ s house. Defendant gave Flores about $500. She drove to L una ’ s house and gave him the money

. Luna said that it was not enough. He also demanded to go somewhere to “ cash the money, ” because he did not want to carry around so many bills. Flores took him to PLS Check Cashers, where Luna exchanged the
cash for a money order. A couple of days later, Luna demanded more money from Flores.
Defendant had no more money, so he gave Flores drugs to sell. She raised $200, which she gave to Luna

.

Other Testimony and Evidence A surveillance video spanning 4:31 to 5:00 a .m. on the morning of the killing, taken from the area of the Lamp Lodge, was played for the jury. As narrated by Flores, the video showed her dropping Luna off mid

- block as directed by defendant, Luna walking toward the Lamp Lodge the first time and then returning to Flores ’ vehicle, Lu n a later meeting defendant outside the Lamp Lodge6

after defendant tried to clear out bystanders, defendant ’ s car leaving the scene after the shooting, and Luna walking down 7th Street back to Flores ’ vehicle.
On the mornin g of the killings, Renell Collins was in room 103 at the Lamp Lodge. 3 Defendant entered and said, “ You might want to get your shit out of here

. . . because some shit about to go down. . . . Tommie might be about to get his
due. ” When Collins went outsi de, he saw Hayes sitting on the stairs. He saw defendant exit the Lamp Lodge and talk on his phone. Defendant told Collins to get Amezquita, who was standing in front of the Lamp Lodge, out of the area. Collins called to Amezquita, who joined him, and H ayes went inside the hotel. Collins heard 7 to 10 gunshots, and saw Cohen dive out a window and land in the parking lot. A short Hispanic man in a hoodie exited the front door of the hotel
and walked on Stanford toward 7th Street. Collins later selected Luna ’ s photographs in a six

- pack as looking similar to the man. Before the killings, William Bird was waiting across the street from the Lamp Lodge to buy crack cocaine from Hayes. 4 He saw two Hispanic men, the shorter of whom he identified as Luna, wa lk to the Lamp Lodge. Lu na wore dark clothes, a hooded sweatshirt, and a beanie. A Caucasian man exited the Lamp Lodge, and talked to Luna and the other man, and then let them in. Bird then heard multiple gunshots, and saw Lu n a and the other Mexican man exit the Lamp Lodge
and walk fast down 7th Street. Nadia Chavez, the manager of the PLS Check Cashers where Flores took
Lu na after the killings, testified that a man, whom she identified as Luna, and a

3 Collins was unavailable at trial and his preliminary hearing testimony was read to the jury.

4 Bird was unavailable at trial and his preliminary hearing t estimony was read to the jury.7

woman entered the business around 7:00 a.m. on the m orning of the murders.
Lu na wanted to exchange small bills for large bills, but Chavez told him he could
not do that. She suggested that he get a money order instead. Luna purchased a $500 money order

. He returned later that day and cashed the money or der. Cell phone records showed five calls between Flores ’ and Luna ’ s phones on the morning of the murder between 3:59 a.m. and 4:23 a.m. Based on signals from directional towers, Flores ’ phone was moving from Boyle Heights (where Luna lived) toward the L amp Lodge. There were calls between Flores ’ phone and
defendant ’ s phone at the following a.m. hours: 4:23, 4:34, 4:40, 4:46, 4:47, 4:49,
and 4:57. In the first three calls, defendant ’ s phone alone was near the Lamp Lodge; in the rest, both defendant ’ s a nd Flores ’ phones were in that area. At 5:00 a.m., defendant ’ s phone made a call from a location further away from the Lamp Lodge, indicating that he was leaving the scene. Luna ’ s phone made two calls at 5:03 and 5:09 a.m. from locations traveling away f rom the Lamp Lodge. At 5:38 and 5:40 a.m., Flores ’ phone called defendant ’ s twice, then at 6:55
a.m. Flores ’ phone called Luna ’ s.

Recorded Calls Between Flores and Defendant After Flores was arrested, she cooperated with the police, who recorded five

te lephone calls she had with defendant before he was arrested

. Defendant made several incriminating statements in the calls, and excerpts of t he recordings were played for defendant ’ s jury

. In one conversation , when Flores complained that Luna was pressing her for money, defendant replied in part, “ So what is he talking about? I mean, he done got like, what, about like $700 of money. You can ’ t help
it because he didn ’ t find the money on the boy. ” In another conversation, Flores
and defendant talked about having hired Luna after, as stated by defendant, “ I was8

getting ready to do something and my people was taking like

. . . too long. ” Defendant and Flores discussed having expected a “ jack move, ” and defendant stated how he expected that Hayes would revea l where he hid his money on his

person: “ Because when a mother fucker in a situation like that,

. . . [t]hey going to give it up
, . . . they going to tell you where it is. ” They also discussed not knowing that Hayes would be killed. D efendant explained, “ [I]t ’ s not our fault [that Hayes
didn ’ t give up his money].

. . . My thing was (inaudible) in the pocket. Okay.
Because that ’ s where I seen him putting it. And now, I didn ’ t know he was putting it in his nuts and in his butt and in his ankles and tap ing it and all of that shit

. . . . [I]f I had known that, I had [ sic ] told him there. ” Referring to Luna killing Hayes,
defendant stated: “ So, you know, I mean, he did what he did

. . . . I ain ’ t knocking
what he did. It ’ s done. You know what I ’ m sayi ng? It ’ s like

. . . I ain ’ t go t no problem with

. . . cleaning the rest of it up since it didn ’ t go that way. ”
In yet another conversation, when told by Flores that Luna had told some

“ homies ” “ about the hit on

. . . old boy, ” defendant replied, “ What the fuck is he doing that for? That ’ s stupid. ” Defendant suspected that “ the bottom line is, you know, I guess he want his bread. ”

Recorded Call Between Officer Ortiz and Defendant Posing as Luna, Los Angeles Police Officer Sergio Ortiz spoke with
def endant by phone. The call was recorded and played for defendant ’ s jury. In the call, Ortiz (as Luna) told defendant that he wanted more money because “ you had
me smoke this fat mother fucker [Hayes] and that

. . . fucking maricon [Cohen]
that was with hi m, ” for which he had received $700 through Flores

. Defendant
said that Flores had told him that Luna had agreed to $3,000

. Ortiz (as Luna)
stated “ [y]ou got to see where I ’ m coming from. And it wasn ’ t just one mother9

fucker. It was two mother fuckers. ” Defendant replied, “ I understand

. . . but again the decision wasn ’ t like that

. . . . How did he [referring to Cohen] get there?
He was

. . . it wasn ’ t agreed upon at first before it happened. ” Ortiz (as Luna) demanded $4,000 because “ it wasn ’ t just t hat fat mother fucker, it was that other gay mother fucker, too. ” Defendant agreed to “ raise it to four ” and to me et on the following Saturday for defendant to pay Luna an additional $3,300

.

Recorded Call and Meeting Between Flores and Luna The police also arranged for Flores to talk by phone to Luna, who was in custody, and recorded the conversation. Flores asked Luna how much “ Q ” (defendant ’ s nickname) owed him. Lu n a replied, “ whatever he feels on owing, ” and said, “ [A]ll I ’ m asking for is to take care of me while I ’ m in here. ” Luna admitted that he already had been paid $700 and told Flores that he wanted additional money delivered to his mother ’ s address. He asked Flores to “ talk to him for me, ” and ask “ if you can spare frickin ’ a thousand ” as a partial payment. The police also arranged for Flores to visit Luna in jail. A recording of their conversation was played at trial. In the conversation, Flores said that “ Q ” was

“ tripping ” because Luna was in custody

. Luna replied, “ Oh, he thinks that

. ” Flores responded, “ Yeah. ” Luna then said, “ No. ” Flores complained that she had told defendant that he still owed them money. Luna told Flores, “ Just tell him he could send it . . . and put it on the books, ” referring to Luna ’ s account at county jail

.

Defendant ’ s Statements to Detectives Thacker and Lake Defendant was arrested on July 1, 2009. On that date, Los Angeles Police Detectives John Thacker and Thayer Lake interviewed him at the police station for10

more than three hours

. The interview was recorded and played for defendant ’ s jury

. After being advised of his rights, defendant agreed to talk to the Detectives

. As here relevant, defendant initially denied knowing who shot Hayes and Cohen

. Later, he admitted hiring Luna through Flores to “ sen d a message ” to Hayes

. Defendant stated that he asked Flores if she knew anyone with a gun, but explained
to the Detectives “ that was talking shit, though

. . . . When he came down I was like, oh, shit. What ’ s going on? And she was like, well, this is w hat ’ s going on. ”
He later reiterated that he di d not expect Luna to have a gun

. Defendant admitted clearing people out of the Lamp Lodge, but denied he intended to have Hayes
killed

. He stated: “ [H]e was coming down there to beat up Tommy and do
whatev er he needed to do to Tommy to send a message. And my word was, beat up Tommy. I said in the process, I said he might have some money on him

. . . . She [Flores] asked me how much [because Flores told him that Luna wanted to know what he would get] ? I s aid

. . . he probably go t about $1,500, a $1,000 or something on him. What she relayed to him later on, I found out, was that he was to go in there and he was going to get the money off of Tommy. The shit went
bad. I didn ’ t know h e was going up in the r e to kill T ommy. All I knew was he was going up in there to send a message. ” He admitted giving Flores $700 after the killings to give to Luna

.

DISCUSSION Ineffective Assistance of Counsel
Defendant contends that his tr ial counsel was ineffective for: (1) not moving to suppress the incriminating statements he made to Detectives Thacker and Lake on the ground that they were not voluntary , and (2) not objecting to the11

prosecutor ’ s comments on the natural and probable consequences doctrine. We disagree.

A. The Statements to the Detectives To establish ineffective assistance of counsel on appeal, a defendant must
demonstrate that: (1) his attorney ’ s performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the proceeding would have been more favorable
to the defendant. ( Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) A reasonable probability is a probability sufficient to undermine confi dence in the

outcome. ( Ibid .) On direct appeal, a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel ’ s challenged act or omission. ( People v. Anderson (2001) 25 Cal.4th 543, 569.) Here, the record suggests a reasonable tactical purpose in not seeking to suppress defendant ’ s incriminating statements to
Detectives Thacker and Lake.
A part from defendant ’ s statements to the detectives, t he ev idence left no question that defendant hired Luna and that Luna intentionally, and with premeditation and deliberation, killed Hayes, and in the process also killed Cohen
who happened to be present. The only question was whether defendant intended to
have Hayes killed (as Flores testified) or whether he intended something less than
that (to have Luna “ send a message ” to Hayes, short of killing him).
Defense counsel ’ s strategy, as revealed by his closing argument, was to
attack Shanna Flores ’ credibility , especially insofar as she testified that defendant set the plot in motion with the intent to kill Hayes. As defense counsel told the12

jury, “ this case is about Shanana Flores, her hatred, her desire for revenge [against Hayes for giving heroin to her gir lfriend ], and her getting my client into a web. ” According to defense counsel, it was Flores, not defendant, who wanted Hayes
killed: “ When I first read those reports about the eight shots in Tommie and saw that video, and during the course of this trial I could hear her in my mind telling Speedy [Luna], and [ ‘ ] when you do it, Speedy, Fuck him up. [ ’ ] Eight shots will do that to you. ” Thus, the record sugg ests defense counsel made the reasonable tactical decision not to object to defendant ’ s statements to the detectives as a way of presenting defendant ’ s full version of events

– including that he wanted only to send Hayes a message and did not want him to be killed

– without the need to call defendant to testify. Such a tactical decision made sense giv en that besides the
interview with the detective s , defendant made other , similar incriminating
statements in his recorded telephone calls with Flores and Officer Ortiz (who pretended to be Luna) . Because the record demonstrates a rational basis for
def ens e counsel not to object to the statements to the detectives , we reject the claim
that defense counsel was ineffective. In any event, even if defense counsel had successfully moved to exclude
defendant ’ s statements to the detectives, it is not reasonably probable that a
different result would have been reached. As here relevant, t he prosecution proceeded on three theories of aiding and abetting liability for first degree murder : (1) assuming that defendant intended to have Hayes killed, that he aid ed an d
abett ed Luna in committing the premeditated murder of Hayes , and that under the
doctrine of transferred intent he was also liable for Luna ’ s killing of Cohen ; 5

5 “ [A] person ’ s intent to kill the intended target is not ‘ used up ’ once it is employed to convict the person of murdering [the intended] target. It can also be used to convict of13

(2) assuming that defendant intended only to have Hayes beaten or robbed, that he was guilty of first degree murder because the intentional killings were a natural and foreseeable consequence of the crimes defendant intended ; and (3) assuming that defendant only intended to have Hayes robbed, that he was guilty under the felony
murder rule because the killings occurred during the commi ssion o f attempted robbery

. The record leaves little doubt that the jury accepted Flores ’ version of events
and con cluded that defendant hired Luna to kill Hayes. Under the jury instructions for the financial gain special circumstance, the jury was required to find that “ [t]he murder was intentional, ” “ [i]t was carried out for financial gain, ” and “ [t]he
defendant believed the death of the victim would result in the desired financial gain. ” In finding the financia l gain special circumstance true, the jury necessarily concluded that defendant intended to have Luna kill Hayes for defendant ’ s own financial g ain. Given that finding, it is very likely that the jury convicted defendant on the theory that he aided Luna i n the premeditated murder of Hayes, and convicted him of the first degree murder of Cohen under the doctrine of
transferred intent. It is thus extremely unlikely that defendant ’ s statements to the detectives, in which he claimed to have wanted only to hav e Luna “ send a

message ” to Hayes and did not intend to have Hayes killed, played a role in
defendant ’ s convictions

. On this ground alone, it is not reasonably probable that that if defense counsel had successfully excluded defendant ’ s statements to the
de tectives, a different result would have been reached.

the murder of others the person also killed .” ( People v. Bland (2002) 28 Cal.4th 313, 322.) “[A] ssuming legal causation, a person maliciously intending to kill is guilty of the murder of all persons actually killed. If the intent is premeditated, the murder or murders are first degree. ” ( Id. at pp. 323

- 324.)14

Moreover, t he second two theories , which assumed that defendant did not intend to kill Hayes, but rather hired Luna to intimidate Hayes by , inter alia, robbing him , were based not simply on defendant ’ s statements to the d etectives
, but also his statements made to Flores in their recorded conversations . Those

statements were virtually identical in their incriminating effect to the statements
defendant made to the detectives. Defendant and Flores disc ussed expect ing Luna

to beat or rob Hayes

– a “

jack move ”

– and did not expect Luna to kill him

. Moreover, the other evidence of defendant ’ s guilt connecting him to the hiring of
Luna was nearly airtight

. Thus, even if defense counsel had successfully mov ed to
exclude defendant ’ s s tatements to Detectives Thacker and Lake
, t he independent
evidence , considered without reference to the statements
, showed almost as a
matter of law that even if defendant did not intend to have Hayes killed, he was, at the very least, guilty of first degree murder s of Hayes and Cohen on a felony murder theory. For these reasons, assuming that counsel was ineffective, it is not reasonably probable that but for counsel ’ s deficiency, defendant would have achieved a better
result.

B. The Prosecutor ’ s Argument Defendant contends that defense counsel was ineffective for failing to object to purported misstatements of the law by the prosecutor concerning the natural and probable consequences doctrine. The prosecutor argued, in relev ant part: “ did [defendant] just want Tommie [Hayes] beat up and shit went bad? Did he send an armed assassin in to do it? Seriously, he ’ s got a guy with a gun, he sends him in, a shooting was reasonably foreseeable and [defendant] is guilty of first deg ree

m urder [in the killings of Hayes and Cohen]

. ”15

Defense counsel was not ineffective, because the prosecutor ’ s comments were unobjectionable. “ A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offens e] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The latter question is not whether the aider
and abettor actually foresaw the additional crime, but wheth er, judged objectively,
it was reasonably foreseeable. [Citations.] Liability under the natural and probable consequences doctrine ‘ is measured by whether a reasonable person in
the defendant ’ s position would have or should have known that the charged
of fense was a reasonably foreseeable consequence of the act aided and abetted. ’ [Citation.] [¶] “‘ [A]lthough variations in phrasing are found in decisions addressing the doctrine

— “ probable and natural, ” “ natural and reasonable, ” and

“ reasonably foreseeabl e ”

— the ultimate factual question is one of foreseeability. ’ [Citation.] Thus, ‘ “ [a] natural and probable consequence is a foreseeable

consequence ”. . . .’ [Citation.] But ‘ to be reasonably foreseeable “ [t]he consequence need not have been a strong prob ability; a possible consequence which might reasonably have been contemplated is enough.

. . . ” [Citations.] A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual is sue to be resolved by the jury. [Citations.] ” ( People v. Medina (2009) 46 Cal.4th 913, 920.) Here, assuming that defendant hired Luna to confront Hayes by assaulting, beating, or robbing him, there was ample evidence to support first degree murder
convi ctions in the deaths of Hayes and Cohen on a natural and probable consequence theory. Luna ’ s premeditated killing of Hayes was a foreseeable

consequence

– defendant expected, at the very least, that Lu na , armed with a gun,16

would use force against Hayes an d take money or drugs. In that context, Hayes ’ possible death at Luna ’ s hands was to be reasonably expected. So, too, was Cohen ’ s death

. The Stanford Hotel housed residents, and transients frequented the location. Defendant arranged for Luna ’ s confro ntation with Hayes to occur in the lobby of the hotel. Obviously, that a bystander might be present, despite an attempt by defendant to clear out witnesses, and that such a person might be harmed in the anticipated use of force against Hayes, was “ a possi ble consequence which might reasonably have been contemplated. ” ( People v. Medina, supra , 46 Cal.4th at p. 920. ) That defendant attempted to clear out potential witnesses, and that he may even have believed he succeeded, does not
mean that Cohen ’ s death was not reasonably foreseeable. The jury could infer, as a matter of common sense, that a reasonable person in defendant ’ s position would have understood the possibility that he might not be able to clear out all residents or transients, and the possibil ity that such a person might be killed during the anticipated attack with a gun on Hayes. Thus, the evidence was sufficient to show that the killing of Cohen was a natural and probable consequence of the intended killing of Hayes. In short, there was n othing improper in the prosecutor ’ s arguments on the natural and probable consequences doctrine, and, indeed, the evidence supported
defendant ’ s convictions on that theory.

Sufficiency of the Evidence
Defendant contends that the evidence was insufficie nt to support his conviction of the murder of Kevin Cohen. He is incorrect. Viewing the record as a whole and in the light most favorable to the prosecution ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence supports the conviction. W e have alr eady17

discussed the sufficiency of the evidence to support the natural and probable consequences theory. Although we need discuss only one theory to uphold the conviction ( People v. Sanchez (2001) 26 Cal.4th 834, 851), we now discuss the felony murder theo ry as well

. A defendant who aids and abets certain statutorily liste d felonies, including attempted robbery
, is guilty of first degree murder for a killing committed in the
course of th at attempted robbery, even if the killing is not a natural or proba ble

consequence

. ( § 189; People v. Dillon (1983) 34 Cal.3d 441, 477.) Here, at the very least, the evidence proved that in hiring Luna, defendant expected him to take

money or drugs from Hayes. Defendant paved the way for Luna to confront Hayes
in the l obby of the Stanford Hotel by, among other things, trying to clear out potential witnesses. Luna entered the hotel, intending to take money or drugs from Hayes, and soon after shot Hayes eight times and Cohen once. He then returned to
Flores ’ vehicle and complained that he got no money from Hayes. This evidence was sufficient to prove that defendant aided and abetted Luna in the attempted robbery of Hayes, and that Luna killed Cohen while attempting to commit that robbery.
Defendant contends that ther e was no evidence that when Luna shot Cohen,
the attempted robbery of Hayes was still in progress. The argument ignores the evidence that the killing of Cohen occurred simultaneously with the killing of Hayes . Thus, Renell Collins, who was standing outsi de the Stanford Hotel, heard 7 to 10 gunshots, and saw Cohen dive out a window and land in the parking lot. The
obvious

– indeed the only reasonable

– inference was that Luna shot Cohen during his attempt to rob Hayes. Thus, the evidence was sufficient t o support defendant ’ s conviction of the first degree murder of Cohen on a felony murder theory.18

Transferred Intent Defendant contends that the trial court erred in instructing on transferred intent with respect to the killing of Cohen. He asserts that “ there was not a scintilla
of evidence

. . . that Luna shot Cohen by mistake or while intending to shoot a different prospective victim. ” We disagree. The evidence was sufficient to infer that Luna intended to kill Hayes (he shot Hayes 8 times), and in the fusillade also killed Cohen (who was shot once and jumped out the lobby window). Thus, an instruction on the doctrine of transferred intent, under which “ the intent to kill the intended target transfers to others also killed ” ( Bland , supra, 28 Cal.4t h at p. 3 23 ; see fn. 5, ante ), was appropriate.

DISPOSITION

The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J. MANELLA, J.