The trial court’s instructions concerning concurrent intent were not erroneous. Following his conviction for three attempted murders, Bragg contended on appeal that the trial court erred when it allowed the jury to find him guilty of attempted murder without finding he acted with the requisite intent. The jury was instructed pursuant to CALCRIM No. 600 that it could find Bragg guilty of attempted murder of the two victims if he intended to kill the third victim or anyone within the kill zone. Bragg argued the instruction was erroneous because it allowed the jury to find him guilty on a theory of concurrent intent by finding that he intended to harm, rather than kill, those in the zone of danger around the intended victim, thereby lessening the prosecution’s burden of proof. The appellate court rejected the argument. No reasonable juror could have failed to understand from the instructions that to the extent the court used the word “harm” or “zone of harm,” the harm referred to was the ultimate harm of death and that the law required an intent to kill the victims.
It was not error for the court to have failed to instruct on assault with a firearm as a lesser included offense of attempted murder. Bragg also argued that the trial court erred by failing to instruct the jury on assault with a firearm as a lesser included offense of attempted murder. He reasoned that because the attempted murder allegations carried a sentence enhancement for discharge of a firearm, the crime could not have been committed without also committing the offense of assault with a firearm, thus making the latter a lesser included offense of the former. The appellate court rejected the argument. Although the evidence showed Bragg assaulted the victims with a firearm, assault is not a lesser included offense under these circumstances given the pleadings in this case. Evidence of crimes outside the pleadings does not create a lesser included offense where one does not otherwise exist.
The trial court did not err in its instructions concerning the street gang enhancement. Bragg also argued that the true finding on the street gang enhancement had to be reversed because the jury was told that “a pattern of criminal street gang activity” had to be based on the commission of two or more of the crimes of attempted murder and battery with serious bodily injury, when the latter is a crime not enumerated in section 186.22, subdivision (b)(1). The appellate court found the error harmless beyond a reasonable doubt. One predicate offense was uncontested. The jury necessarily found a second predicate offense, the commission of the attempted murders, true by virtue of their conviction of Bragg for the underlying offenses. The jury knew it could consider the current offenses as a predicate offense under the statute.
The imposition of multiple enhancements under section 186.22 was proper. Bragg also argued that the trial court erred when it sentenced him to multiple street gang enhancements because Penal Code section 654 proscribed the multiple punishment. The appellate court rejected that argument as well, finding that Bragg’s three attempted murders were each committed on behalf of a criminal street gang, and therefore the multiple enhancements were proper.