filed:

Filed: 2/18/21 P. v. Taylor CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B305210

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA150313)
v.

HERBERT TAYLOR,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Tammy Chung Ryu, Judge. Affirmed as
modified.
James Koester, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Kathy S. Pomerantz, Deputy Attorney
General for Plaintiff and Respondent.
_________________
 A jury convicted Herbert Taylor of attempted premeditated
murder and related crimes. On appeal Taylor contends the court
prejudicially erred in responding to a question submitted by the
jury during deliberations. We modify the court’s minute order to
properly reflect the sentence imposed and, as modified, affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
An information filed November 12, 2019 charged Taylor
with attempted premeditated murder (Pen. Code, §§ 187,
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subd. (a); 664), shooting at an inhabited vehicle (§ 246) and
possession of a firearm by a felon (§ 29800, subd. (a)(1)). The
information specially alleged as to the attempted murder count
Taylor had acted with premeditation and deliberation (§ 664,
subd. (a)) and had personally used and intentionally discharged a
firearm (§ 12022.53, subds. (b), (c)). It also specially alleged
Taylor had suffered a prior conviction for a serious felony within
the meaning of section 667, subdivision (a)(1), and the
three strikes law (§§ 667, subds. (b)-(j), 1170.12).
2. The Evidence at Trial and the Jury’s Question
Taylor was angry with his friend Rickey Cole for
purchasing from a third party three paintings Taylor believed
were his. Standing in the street in front of Cole’s car as Cole
attempted to drive away, Taylor raised his gun and fired
two shots at Cole. The bullets hit the lower front panel of the car.
Cole was not injured. Taylor’s defense at trial was that he was
not the shooter.

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Statutory references are to this code.

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 During deliberations the jury submitted written questions
to the court, asking, “If you are shot at, is it automatically
attempted murder?” “Could it be attempted assault?” The
prosecutor urged the court to answer the questions simply by
referring to CALCRIM No. 600, the instruction previously given
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on attempted murder. Defense counsel proposed responding “no”
to the first question and then referring to the instruction. The
court rejected defense counsel’s proposal, explaining, “I do not
want to say no to the first part of the question although
technically no would be the correct answer. However, I don’t
want the court’s answer of no to be construed by the jury as not
guilty on attempted murder. Because you never know exactly
what the jurors are asking. . . . I think referring them to the jury
instruction would clearly indicate that the answer would be no.
But I want them to reach that conclusion and not take what I say
to be what their verdict should be.”

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CALCRIM No. 600, as given to the jury, provided, “The
defendant is charged in Count 1 with attempted murder. [¶] To
prove that the defendant is guilty of atempted murder, the People
must prove that: [¶] 1. The defendant took at least one direct
but ineffective step toward killing another person; [¶] AND [¶]
2. The defendant intended to kill that person. A direct step
requires more than merely planning or preparing to commit
murder or obtaining or arranging for something needed to
commit murder. A direct step is one that goes beyond planning
or preparation and shows that a person is putting his or her plan
into action. A direct step indicates a definite and unambiguous
intent to kill. It is a direct movement toward the commission of
the crime after preparations are made. It is an immediate step
that puts the plan in motion so that the plan would have been
completed if some circumstance oustide the plan had not
interrupted the attempt.”

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 The court answered the jury in writing, “The jury
instruction on attempted murder must guide the jury in
answering the first question. The jury is to consider only the
charges in this case and reach a verdict, if you can, based only on
the evidence and the law provided.”
3. The Verdict and Sentence
Soon after receiving the court’s written response, the jury
convicted Taylor on all counts and found true the special
allegations relating to premeditation and firearm-use. After
Taylor admitted the truth of the prior conviction allegation, the
People moved to dismiss the more serious firearm-use allegation
under section 12022.53, subdivision (c), which the court had
indicated it intended to strike in furtherance of justice.
The court sentenced Taylor to an aggregate state prison
term of life with a minimum parole eligibility of seven years for
attempted premeditated murder, plus 10 years for the firearm-
use enhancement under section 12022.53, subdivision (b). The
court imposed a concurrent term of three years for the offense of
being a felon in possession of a firearm and stayed sentence on
the offense of firing into an occupied vehicle pursuant to
section 654.
DISCUSSION
1. Governing Law and Standard of Review
Section 1138 provides, “After the jury have retired for
deliberation . . . if they desire to be informed on any point of law
arising in the case, they must require the officer to conduct them
into court. Upon being brought into court, the information
required must be given in the presence of, or after notice to, the
prosecuting attorney, and the defendant or his counsel, or after
they have been called.” The Supreme Court has explained, “The

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court has a primary duty to help the jury understand the legal
principles it is asked to apply. [Citation.] This does not mean the
court must always elaborate on the standard instructions. Where
the original instructions are themselves full and complete, the
court has discretion under section 1138 to determine what
additional explanations are sufficient to satisfy the jury’s request
for information. [Citation.] Indeed, comments diverging from the
standard are often risky.” (People v. Beardslee (1991) 53 Cal.3d
68, 97; accord, People v. Cleveland (2004) 32 Cal.4th 704, 755;
see People v. Smithey (1999) 20 Cal.4th 936, 984-985 [a trial court
may satisfy its duty to respond to the jury’s question by referring
it to instructions already given if those instructions are full and
complete and adequately answer the jury’s question on the facts
of the case].)
When, as here, there is no dispute as to the propriety of the
instructions provided to the jury, we review the court’s response
to the deliberating jury’s questions for abuse of discretion.
(See People v. Waidla (2000) 22 Cal.4th 690, 745-746 [“[a]n
appellate court applies the abuse of discretion standard of review
to any decision by a trial court to instruct, or not to instruct, in
its exercise of its supervision over a deliberating jury”]; People v.
Fleming (2018) 27 Cal.App.5th 754, 765 [same].)
2. The Court Properly Responded to the Jury’s Question
“‘Attempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.’” (People v. Sanchez (2016)
63 Cal.4th 411, 457.) Unlike murder, which may be accomplished
with implied malice, attempted murder requires a specific intent
to kill. (Ibid.; People v. Gonzalez (2012) 54 Cal.4th 643, 653

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[“[w]hile implied malice murder does not require an intent to kill,
attempted murder does require a specific intent to kill”].)
In contending the trial court’s response to the jury’s
question was deficient, Taylor argues the court “failed to address
the jur[y]’s legal concern regarding the relationship between
[Taylor] firing the gun at Cole and his intent to kill and likely
allowed the jurors to have convicted [Taylor] of the attempted
murder on a legally erroneous implied malice theory.”
Taylor’s contention the jury may have convicted him on the
basis of an implied malice theory is without merit. No theory of
implied malice was argued; no instruction on implied malice was
given; and no confusion following the court’s appropriate
response to the jury’s question is reflected in the record. In
telling the jury the answer to its hypothetical question could be
found by referring to CALCRIM No. 600, which properly
instructed the jury that attempted murder required a finding of
“a definite and unambiguous intent to kill,” and reminding them
to consider only the charges in this case, the court correctly
responded to the question without creating any undue confusion.
No abuse of discretion occurred, nor is Taylor able to demonstrate
prejudice. Indeed, the jury found true the special allegation
Taylor had acted with premeditation and deliberation,
eliminating any possibility the jury convicted him based on a
mens rea that was something other than a specific intent to kill.
3. Clarification of the Court’s Sentence
Although the court correctly identified Taylor’s sentence for
attempted premeditated murder as life with a minimum parole
eligibility of seven years in both its oral pronouncements and its
minute order (see § 664, subd. (a); People v. Robbins (2018)
19 Cal.App.5th 660, 678), plus 10 years for the firearm-use

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enhancement (§ 12022.53, subd. (b)), the court also referred to the
aggregate state prison sentence as 17 years to life, a description
included in the court’s minute order albeit not in the abstract of
judgment. This was incorrect. (See People v. Wong (2018)
27 Cal.App.5th 972, 977, fn. 4 [the “common shorthand” courts
have used to describe a life sentence with a minimum parole
eligibility date of seven years as seven years to life “is incorrect
because it indicates a minimum term exists, rather than a
minimum parole eligibility”]; People v. Robinson (2014)
232 Cal.App.4th 69, 72, fn. 3 [“[a] term of life with the possibility
of parole does not have a minimum determinate term of
seven years; rather, a person sentenced to such a term first
becomes eligible for parole in seven years”].) This inaccurate
description of the sentence must be corrected to eliminate
potential confusion.
DISPOSITION
We modify the court’s minute order by striking the
description of the sentence imposed on count 1 as 17 years to life
so that the minute order properly reflects the intended sentence
on that count of life with a minimum parole eligibility of
seven years, plus 10 years for the firearm-use enhancement. As
modified, the judgment is affirmed.

PERLUSS, P. J.
We concur:

*
SEGAL, J. McCORMICK, J.

*
Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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