NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

Defendant and appellant, Lewis Marquis Burns, appeals the judgment entered following his conviction for two counts of attempted murder, with great bodily injury, firearm and gang enhancements (Pen. Code, §§ 664/187, 12022.7, 12022.53, 186.22).1 He was sentenced to state prison for a term of 69 years and 4 months to life.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

On the afternoon of February 5, 2010, Renee Gatewood and her son, Roderick Gardner, went to a Domino's Pizza restaurant in a strip mall at 54th and Figueroa. Gatewood and her family used to live in the area, but they had moved in November.

Gatewood went into the restaurant to order while Gardner waited outside on the sidewalk. Gardner saw defendant Burns walking in his direction. Gardner was acquainted with Burns from when he lived in the neighborhood. Burns used to ask Gardner where he was from, which Gardner understood to be a gang affiliation query. Gardner, who did not belong to any gang, and whose father was a police officer, would generally say he was "from nowhere" or "from Chicago."

On this day, Burns said, "What's groovin'" or "What's up, Hoover?" In response, Gardner just nodded. Burns pulled a gun from his waistband, pointed it at Gardner, said something like "Fuck Hoover" or "Fuck Groove," and started shooting. Gardner ran for cover toward some parked cars. As he ran, he was shot and fell to the ground. Gardner stood back up, ducked between two cars, and then ran into a donut shop. By that time the shooting had stopped. In all, Gardner heard 12 or 13 shots. He had been hit once in each leg.

Lawanda Broussard had just left a store and happened to be standing five or ten feet behind Gardner when this shooting occurred. Gardner's back was to Broussard, and Burns was 10 or 15 feet away from her, on the other side of Gardner. Broussard heard Burns call Gardner "a punk bitch." Burns was pointing a gun at both her and Gardner; there was a "straight line" running from Burns to Gardner to her. Then Burns started shooting. He fired five to seven shots before Broussard could move; she heard bullets flying right past her head. Broussard then ran to hide behind a parked car.

Asked if Gardner had been blocking her line of sight to the gunman, Broussard testified: "No, because the shooter was way much taller than me and the guy that was in between me [and the gunman]."

The following colloquy occurred:

There were two bullet holes in the legs of Broussard's pants. One of the bullets had grazed her thigh, which was bleeding.

A subsequent police search of Burns's residence uncovered photographs depicting him and others dressed in Hoover gang attire.

A gang expert testified the 59 Hoovers were a subset of the Hoover Gangster Crips gang. The expert was well-acquainted with Burns, who had admitted he was a member of the 59 Hoovers. "What's up, groove," or "What's groovin" are common phrases used by Hoover gang members. In this instance, the words served to let "the victim know, this is on Hoovers. This is a Hoover gang member doing whatever he's about to do."

CONTENTIONS

1. There was insufficient evidence to sustain the conviction for attempting to murder Broussard.

2. The trial court erred in responding to a jury question.

DISCUSSION

1. There was sufficient evidence Burns attempted to murder Broussard.

Burns contends there was insufficient evidence to sustain his conviction for attempting to murder Broussard because the so-called "kill zone" theory was inapplicable in this situation. This claim is meritless.

a. Legal principles.

"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] `"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. `"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."' [Citations.]"' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)

"Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, `without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[] of conviction.' [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

Section 664 provides: "Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: [¶] (a) If the crime attempted is . . . . willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole."

"`The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice — a conscious disregard for life — suffices. [Citation.]' [Citation.] In contrast, `[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' [Citations.]" (People v. Smith (2005) 37 Cal.4th 733, 739.) "[I]t is well settled that intent to kill . . . may in many cases be inferred from the defendant's acts and the circumstances of the crime. [Citation.] `There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions.'" (Id. at p. 741.)

The so-called "kill zone" theory was explained by People v. Bland (2002) 28 Cal.4th 313, 329: "The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them." Concurrent intent exists "`when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity. 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. . . . Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.'" (Id. at pp. 329-330, italics added.)

b. Discussion.

Burns argues the kill zone theory did not apply in this situation. Not so. When Burns started shooting, Gardner and Broussard were both directly in his line of fire. Broussard testified she could see Burns over Gardner because Burns was so tall. A fair inference from her testimony was that Burns could also see Broussard. The evidence showed Burns fired numerous times before Gardner dove between the parked cars. Broussard could hear bullets flying past her head, her clothing was punctured by bullets, and she suffered a bleeding wound.

Burns points to Broussard's testimony she believed he had not been targeting her. But this aspect of Broussard's testimony was not explored and the jury never heard why Broussard came to that conclusion. In any event, the jury was not bound by Broussard's opinion Burns had been trying to avoid shooting her. (See, e.g., People v. Renteria (1964) 61 Cal.2d 497, 499 [in robbery case, prosecution was not bound by store clerk's testimony he did not give defendant money out of fear, because other evidence tended to show he had indeed been afraid].) Burns fired multiple times at Gardner from a very short distance away, and Broussard was in plain view right behind Gardner. The kill zone theory was applicable in this situation. (See People v. Bland, supra, 28 Cal.4th at p. 330 ["`Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.'"].)

The kill zone theory was applicable and there was sufficient evidence to prove Burns attempted to murder Broussard.

2. Trial court properly responded to jury question.

Burns contends the trial court did not properly respond to a jury question regarding the meaning of "intent" as used in the instructions defining attempted murder. This claim is meritless.

a. Background.

The jury had been instructed: "For you to find a person guilty of the crime in this case . . . that person must not only commit the prohibited act, but must do so with a specific intent and mental state. The act and the specific intent and mental state required are explained in the instruction for that crime or allegation." For the count charging the attempted murder of Broussard, the jury was told the People had to prove Burns "intended to kill that person."

The jury was also given a "kill zone" instruction: "A person may intend to kill a specific victim or victims, and at the same time intend to kill everyone in a particular zone of harm or kill zone. [¶] In order to convict the defendant of the attempted murder of Lawanda Broussard, the People must prove that the defendant not only intended to kill Roderick Gardner, but also either intended to kill Lawanda Broussard, or intended to kill everyone within the kill zone. [¶] If you have a reasonable doubt whether the defendant intended to kill Lawanda Broussard, or intended to kill Roderick Gardner by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Lawanda Broussard."

During deliberations, the jury sent out a note asking: "Can you please clarify what construes [sic] intent. If someone is in the `kill zone' does this mean there was intent. Also can someone be in the `kill zone' and there be no intent. This is in regards to Lawanda Broussard."

After consulting with counsel, the trial court sent the jury the following note:

b. Discussion.

Burns complains the trial court "did not directly answer the questions that the jury posed," because "rather than stating any definition of intent, simply told the jury that `words and phrases not specifically defined in the instructions are to be applied using their everyday meanings.' [¶] This was a serious mistake." Burns argues, "[T]here can be some confusion between what one knows and what one intends, and the possibility of such confusion in the instant case is apparent from the questions asked by the jury. Yet by repeating CALCRIM 600 on the subject, the court did not clarify the difference between simply knowing that Broussard was in the `kill zone' and any purpose on appellant's part to kill Broussard."

A trial court is not required to explain a term used only in its common, everyday meaning. (See People v. Gonzales (2010) 183 Cal.App.4th 24, 36 ["if the elements of the offense include a term that has a technical legal meaning that is different from its common meaning, the court has a sua sponte duty to define that term"].) "A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.] Thus . . . terms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance." (People v. Estrada (1995) 11 Cal.4th 568, 574-575.)

As the Attorney General points out, "Appellant has not shown that the intent in the attempted murder instruction has a legal meaning that is different than its common meaning. Indeed, the dictionary definition cited by appellant, which defined intent as a `plan, aim, design or purpose, particularly to commit some act' or the `will or purpose with which one does an act' does not differ from its legal meaning."

The jury essentially asked if a victim's presence within the kill zone by itself was sufficient to find intent to kill. The trial court referred the jury to CALCRIM No. 600, which said: "[T]he People must prove that the defendant not only intended to kill Roderick Gardner, but also either intended to kill Lawanda Broussard, or intended to kill everyone within the kill zone." (Italics added.) Hence, it was made clear that neither Broussard's mere presence within the kill zone, nor Burns's mere knowledge of Broussard's presence in the kill zone, was sufficient to convict Burns of her attempted murder.

We conclude the trial court did not err in responding to the jury's question.2

DISPOSITION

The judgment is affirmed.

CROSKEY, J. and KITCHING, J., concurs.