Opinion
B284945
02-21-2020
THE PEOPLE, Plaintiff and Respondent, v. ERNEST J. CASIQUE, Defendant and Appellant.
Michael Allen, Richard B. Lennon, and Larry Pizarro, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA065906) APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa Strassner, Commissioner. Affirmed in part, reversed in part and remanded. Michael Allen, Richard B. Lennon, and Larry Pizarro, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Ernest Casique appeals from a judgment of conviction following a jury trial. Defendant was convicted of three counts of premeditated attempted murder pursuant to Penal Code sections 664 and 187, subdivision (a), and all alleged firearm and gang enhancements were found to be true.
Further statutory references are to the Penal Code.
On January 28, 2019, we issued our opinion and remanded for the trial court to: consider whether to exercise its discretion to strike or dismiss the firearm enhancements pursuant to section 12022.53, subdivision (h); award defendant 848 days of actual custody credit; and recalculate defendant's presentence conduct credits pursuant to section 2933.1. We otherwise affirmed the judgment.
Defendant then filed a petition for review with our Supreme Court. On May 1, 2019, the Supreme Court granted the petition for review but deferred further action pending consideration and disposition of People v. Canizales (2019) 7 Cal.5th 591 (Canizales). On June 24, 2019, our Supreme Court issued its opinion in Canizales, clarifying the circumstances under which it is appropriate to deliver a kill zone theory instruction. (Id. at pp. 606-607.) On September 18, 2019, our Supreme Court directed us to vacate our January 28, 2019, opinion and reconsider the appeal in light of Canizales. The parties then filed supplemental briefing on the matter.
Having reconsidered, we again reject defendant's contention that the trial court erred by allowing a witness to testify without first conducting a hearing to determine whether the witness's testimony was based on personal knowledge. Pursuant to Canizales, supra, 7 Cal.5th 591, we conclude the trial court erred in instructing the jury on the kill zone theory and thus reverse defendants' convictions on two counts of premeditated attempted murder.
II. BACKGROUND
A. Procedural History
Defendant's first trial on this matter concluded in a mistrial after the jury announced it was deadlocked. On May 2, 2017, the Los Angeles County District Attorney charged defendant by a second amended information with three counts of attempted willful, deliberate, and premeditated murder (§§ 664, subd. (a), 187, subd. (a)) of Susana H., Jorge E., and Alexander E. (counts 1, 2, and 3, respectively). For count 1, the information alleged a principal personally discharged a handgun, causing great bodily injury to Susana. (§ 12022.53, subds. (d) & (e)(1).) For counts 1, 2, and 3, the information alleged that a principal discharged a handgun (§ 12022.53, subds. (c) & (e)(1)), and personally used a handgun (§ 12022.53, subds. (b) & (e)(1)). Finally, the information alleged defendant committed the three offenses for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(5)).
Jorge and Alexander are brothers.
On May 19, 2017, a jury convicted defendant of all three counts, and found all firearm and gang enhancements to be true. On August 25, 2017, the trial court sentenced defendant to three life terms, with eligibility for parole after 15 years, and three additional consecutive terms of 25 years to life, 20 years, and 20 years. B. Prosecution Case
1. Susana's Testimony
A county employee read to the jury Susana's testimony from the earlier trial. That testimony included the following. On the evening of March 20, 2015, Susana, her boyfriend Jorge, and Alexander were walking south on 20th Street East toward Avenue R in Palmdale, when they passed a 7-Eleven. Two cars drove up: the first was a Mustang and the second was a gray Scion. Susana heard voices from the Mustang saying bad words. The driver of the Mustang continued to drive. The Scion stopped near Susana, Jorge, and Alexander.
Two men got out of the Scion, one from the front passenger seat and one from the rear passenger-side seat. The two men said some bad words and then started shooting at the three pedestrians. The person who had gotten out of the rear passenger-side seat shot first. He fired one shot and then got back in the car. The person who had gotten out of the front passenger seat fired about six shots. The shooters were approximately 15 feet away from Susana. When the shooting began, Jorge was standing next to Susana's left shoulder, while Alexander stood within one foot of her right shoulder. The shooting lasted a couple seconds. Susana, Jorge, and Alexander ran away. Susana and Jorge ran away together in the same direction. The second shooter got back in the car, and the car drove away.
The street was lit and Susana clearly saw the faces of both shooters. Susana identified the front seat passenger, that is, the second shooter, as Michael Casique. She identified the rear seat passenger, that is, the first shooter, as defendant. When Susana saw defendant in the rear passenger seat, she recognized him right away as "Ernie," a man with whom Jorge had a "beef."
Defendant and Michael Casique are brothers and share the same last name. We will refer to Michael Casique as "Michael."
As Susana ran away from the shooters, she felt a burning sensation in her abdomen and in her right arm. She then fell to her knees because she was blacking out. Susana was taken to the hospital, where she underwent two surgeries and stayed three weeks.
2. Matthew Davis's Testimony
Davis was a sheriff's deputy. On March 20, 2015, in the evening, Davis was at the 7-Eleven on 20th Street. Davis returned to his patrol car in the parking lot and saw two men and one woman walking on 20th Street. A few minutes after driving away in his patrol car, Davis heard five to six gunshots. Davis drove back toward the 7-Eleven and was flagged down by Jorge. Jorge said, "She's been shot." Davis saw Susana on the sidewalk. She had suffered two gunshot wounds.
3. Jorge's Testimony
At the time of his testimony, Jorge was in custody for failing to appear in court pursuant to a subpoena. His testimony about the events leading up to the shooting was similar in many respects to Susana's testimony. He saw two people get out of the car, which was about 45 feet away. One of them yelled "Fuck Sidas." Jorge belonged to the Reseda 13 gang and "Sidas" was a derogatory term for a member of that gang. Just prior to shots being fired, Jorge had been walking shoulder to shoulder with Susana and Alexander. Jorge saw only one gun, which was held by the person who had gotten out of the front of the car, but heard two guns. After hearing at least one gunshot, he, Susana, and Alexander ran. Alexander ran toward the high school, ahead of Jorge and Susana. As he was running away, Jorge fell down, which caused Susana to turn around to help him. Susana was then hit by a shot. The remaining shots were fired in the direction of Alexander. Jorge heard approximately five or six gunshots in total.
Jorge volunteered that defendant was not the shooter: "Look, he didn't do it, and that's all I'm going to say. [¶] . . . [¶] I just want everyone to hear that. He didn't do it." Jorge stated that he saw the person who got out of the front seat holding a revolver. He did not see the second person with a gun.
4. Robert McGaughey's Testimony
a. Investigation
Sometime after the shooting, Detective McGaughey spoke with Jorge at the sheriff's station. Jorge stated that the man who exited the front passenger seat was holding a silver revolver. Jorge described the man who got out from the rear passenger seat as Hispanic, skinny, and having short hair. He wore a black hat with a red bill and the letter "C" in red with white outlining. He wielded a 9-millimeter Glock.
On April 3, 2015, McGaughey interviewed Jorge. The recording of the interview was played for the jury. During that interview, Jorge stated that he saw two people with guns on the night of the shooting. Jorge identified a photograph of Michael from a photo lineup and was 95 percent sure that he was the man who got out of the front passenger seat. Jorge identified a photograph of defendant from a photo lineup as the man who got out of the rear passenger seat. When Detective McGaughey asked Jorge "which one shot," Jorge responded, "Both." When asked whether he saw a muzzle flash from both guns, Jorge responded that he saw only Michael shoot his gun.
McGaughey obtained messages from defendant's Facebook account. At 10:08 a.m. on March 20, 2015, defendant sent a message to a friend identified as "Reyes Blazed": "We don't got time for no hoes today, my boy. We going on ah mission today." McGaughey testified the term "mission" was used by gangs to refer to going out together as a group. The overall goal of a mission was to intimidate the public and obtain respect from rivals. Reyes wrote back, "I'm go with ya foos." At 11:36 a.m., defendant messaged Reyes "[y]ou got 32 bullets," referring to .32-caliber bullets. At 11:36 a.m., defendant messaged his friend "[b]ring em."
On May 1, 2015, McGaughey executed a search warrant at a house where defendant and Michael lived. When McGaughey arrived at the house, he saw defendant standing outside. Defendant was wearing the hat described by Jorge.
b. Gang evidence
The parties stipulated that the Palmas 13 Kings was a criminal street gang and on March 20, 2015, it was engaged in a gang rivalry with Reseda 13. The shooting on March 20, 2015, occurred outside of Palmas 13 Kings territory. Gang members feel disrespected if rival gang members walk through their territory.
McGaughey was a gang expert. He testified that defendant and Michael were members of the Palmas 13 Kings gang. Jorge was a self-admitted member of the Reseda 13 gang. Jorge had gang tattoos, including "Reseda," over his left eyebrow. McGaughey had previously interviewed defendant's girlfriend. That interview was played for the jury. Defendant's girlfriend stated defendant had a "beef" with a guy named "Reseda."
McGaughey considered a hypothetical scenario based upon the facts of this case. McGaughey opined that the three attempted murders in the hypothetical scenario were for the benefit of and in association with a criminal street gang. McGaughey testified that respect was the most important ideal in gang culture and that "[b]y committing these crimes brazenly, open in the public and committing it against a rival, you get even more respect . . . ." The prosecutor asked McGaughey, "Is it important for the gang to defend its territory such as what we heard in the hypothetical here?" McGaughey answered, "Yes."
5. Defendant's statement
On May 2, 2015, McGaughey interviewed defendant. A recording of the interview was played for the jury. During the interview, defendant stated, "I never shot a gun in my life." Defendant denied any involvement in the shooting and also denied being a Palmas 13 Kings gang member. C. Defense Case
Michael testified as a defense witness. He admitted being a member of the Palmas 13 Kings. On the day of the shooting, Michael was at the 7-Eleven. He left the store in a grayish or greenish Mustang driven by his girlfriend. They drove to his house. Michael denied shooting at anyone. Upon arriving at his house, Michael heard three or four gunshots. Michael denied that defendant was at the 7-Eleven that day. Michael also denied knowing who the three victims were. D. Rebuttal
McGaughey testified that he interviewed Michael on April 2, 2015, while Michael was in custody, about the night of the shooting. Michael stated he was at home on the night of the shooting when he heard gunshots. Michael did not mention being at the 7-Eleven.
III. DISCUSSION
A. Jorge's Testimony About Hearing Two Guns
Prior to trial, defense counsel moved to exclude evidence that Jorge had heard from a medical doctor that two different types of bullets were found in Susana's body. Defense counsel argued it was hearsay. Both parties agreed not to elicit such testimony.
During Jorge's testimony, the prosecutor asked Jorge if he told McGaughey that he had seen "the back-seat passenger with what appeared to be a Glock 9-millimeter?" Jorge responded, "No. I told him that, um, we had heard two guns and two different kinds of guns, but I never told him that there was two shooters. I told him that we had heard two types of guns, but um, 'cus she got hit with two different types of bullets." Defense counsel objected and moved to strike. The trial court agreed and struck "'she got hit by two types of guns.'"
Two questions later, the prosecutor asked, "The person—let me go back a second. Just a moment ago you said you heard two different types of guns?" Defense counsel objected and requested a side bar conference.
At side bar, defense counsel stated, "I don't ever remember him saying to the detective that he heard two different types of guns. I think what he is alluding to when he said he heard is that he heard that there were two different types of guns because of bullets. [¶] I think before this is published or inquired by the jury he should be taken outside of the presence of the jury and asked the questions, because I think this is directly going to the statement made by the doctor."
Although the prosecutor conceded that Jorge's prior recorded statements did not indicate he heard two different types of guns, he argued that Jorge hearing two guns, which would not be hearsay, was distinct from hearing that Susana was hit by two different bullets.
Defense counsel argued he interpreted Jorge's testimony to mean that Jorge had obtained the information from Susana's doctor. "So what I'm saying is any further inquiry into this area is going to lead, potentially, to him to say, no, I didn't hear two different guns. I heard that she was shot by two different guns, and that's why I'm saying before we go in here, which I don't think we should, it should be done outside the presence of the jury to determine exactly what he's saying." (Italics added.) The trial court responded, "I'm not inclined to do that."
Defense counsel then repeatedly requested that the court conduct a hearing outside the presence of the jurors before the prosecutor be permitted to ask further questions about Jorge hearing two different types of guns. The court then asked the prosecutor: "Well, let me ask you this question. Are you planning on going any further?" The prosecutor stated: "No. I mean, in light of this, I'm just going to leave it alone because I told the court I would not elicit this information, and I'm not intending to try and do that."
Court and counsel then engaged in the following exchange: "The Court: Okay. Right. What's out is out, which is 'I heard two different types of guns,' and I believe [the prosecutor] is going to move on. [¶] [Defense Counsel]: Fine. [¶] The court: Anything further? [¶] [Defense counsel]: No. [¶] The court: Are you okay? [¶] [Defense counsel]: Leave it like that." Following the side bar conference, the prosecutor asked questions about a different topic.
Defendant contends the trial court erred by admitting Jorge's testimony that he heard two different guns, without holding an evidentiary hearing outside the presence of the jurors. But counsel only requested an evidentiary hearing prior to the prosecutor asking any further questions about hearing two different guns. Although the court stated it was not inclined to hold such a hearing, defendant was not prejudiced by the court's indicated ruling because based on defense counsel's stated concerns, the prosecutor agreed not to ask any further questions on this topic and did not do so. Defendant did not seek any further relief. For instance, defendant did not request that the trial court strike Jorge's earlier statement, "I told him that we had heard two types of guns." Defendant has therefore forfeited his argument on appeal. (People v. Roberts (1992) 2 Cal.4th 271, 297.)
Moreover, even if defendant had not forfeited the argument on appeal, he would not prevail on the merits. We review the trial court's rulings on evidentiary questions for an abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128.) A witness can testify about a matter for which he has personal knowledge. (Evid. Code, § 702, subd. (a).) "A witness' personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony." (Id., § 702, subd. (b).) The trial court did not abuse its discretion by admitting Jorge's testimony that he heard two different kinds of guns, as the statement itself sufficiently demonstrated that Jorge had personal knowledge about the matter, that is, what he heard. Jorge's testimony, "I told him that, um, we had heard two guns and two different kinds of guns, but I never told him that there was two shooters[,]" was expressed as a complete thought. His next statement, "I told him that we had heard two types of guns, but um, 'cus she got hit with two different types of bullets[,]" can fairly be understood as Jorge's attempt to reiterate the correctness of what he "had heard."
Defendant nonetheless contends the trial court erred because Jorge never previously stated he had heard different sounds from different guns and officers did not testify about finding shell casings at the scene. The existence of conflicting evidence, however, does not affect whether Jorge had personal knowledge that he heard two different types of guns. Moreover, Jorge had previously told McGaughey that there were two shooters, that he saw both Michael and defendant holding firearms, and that both men shot their weapons. Accordingly, we find the trial court acted within its discretion by admitting Jorge's testimony that he heard two different types of guns.
Deputy Davis testified that he did not personally find any shell casings at the scene and did not recall if anyone else found such casings. He further testified that casings are automatically ejected from a nine-millimeter semi-automatic firearm but must be manually removed from the magazine of a revolver.
Defendant also argues the admission of Jorge's testimony violated his federal due process rights. Evidentiary error that rises to the level of the complete preclusion of a defense could violate a defendant's due process right. (People v. Thornton (2007) 41 Cal.4th 391, 452-453.) However, a trial court's application of state evidentiary law does not generally infringe on a defendant's ability to present a defense. (People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4.) Here, defendant was able to offer his defense that he was not present at the scene of the shooting. Thus, there was no federal due process violation. B. Kill Zone Instruction
Defendant contends that the convictions in counts 1 and 3, which charged the premeditated attempted murders of Susana and Alexander, must be vacated because the trial court committed reversible error by delivering CALJIC No. 8.66.1. "The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law . . . ." (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066.)
1. CALJIC No. 8.66.1
A conviction for attempted murder requires proof that the defendant intended to kill the victim and a direct but ineffectual act toward accomplishing that goal. (People v. Perez (2010) 50 Cal.4th 222, 229 (Perez).) Implied malice is not sufficient for attempted murder. (People v. Stone (2009) 46 Cal.4th 131, 139-140.) When a defendant is charged with attempting to kill multiple victims, guilt must be determined separately for each alleged victim. (Id. at p. 141.) "To prove the crime of attempted murder, the prosecution must establish 'the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' [Citation.] When a single act is charged as an attempt on the lives of two or more persons, the intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be 'transferred' from one attempted murder victim to another under the transferred intent doctrine." (Canizales, supra, 7 Cal.5th at p. 602.)
The jury was instructed as to attempted murder with CALJIC No. 8.66, as follows: "Defendant is accused in Counts 1 through 3 of having committed the crime of attempted murder, in violation of sections 664 and 187 of the Penal Code: Every person who attempts to murder another person is guilty of a violation of Penal Code sections 664 and 187. [¶] Murder is the unlawful killing of a human being with malice aforethought. [¶] In order to prove attempted murder, each of the following elements must be proved: [¶] One, a direct but ineffectual act was done by one person towards killing another human being; and [¶] two, the person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being. [¶] In deciding whether or not such an act was done, it is necessary to distinguish between mere preparation on the one hand and the actual commencement of the doing of the criminal deed on the other. [¶] Mere preparation, which may consist of planning the killing or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt. [¶] However, acts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain unambiguous intent to kill. [¶] The acts must be an immediate step in the present execution of the killing, the progress of which would be completed unless interrupted by some circumstances not intended in the original design."
At trial, the court, over defendant's objection, instructed the jury: "A person who primarily intends to kill one person, or persons, known as the primary target, may at the same time attempt to kill all persons in the immediate vicinity of the primary target. This area is known as the 'kill zone.' [¶] A kill zone is created when a perpetrator specifically intending to kill the primary target by lethal means also attempts to kill anyone in the immediate vicinity of the primary target. [¶] If the perpetrator has this specific intent and employs the means sufficient to kill the primary target and all others in the kill zone, the perpetrator is guilty of the crimes of attempted murder of the other persons in the kill zone. [¶] Whether a perpetrator actually intended to kill the victim either as a primary target or as someone within a kill zone is an issue to be decided by you." The Attorney General does not dispute that Jorge was the primary target for purposes of the kill zone instruction.
In Canizales, supra, 7 Cal.5th 591, our Supreme Court considered the continuing viability of a kill zone theory of liability and concluded that a court should instruct the jury about the kill zone theory "only in those cases where the court concludes there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm. The use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction." (Id. at p. 608.) The Supreme Court anticipated that "there will be relatively few cases in which the theory will be applicable and an instruction appropriate." (Ibid.)
Canizales, supra, 7 Cal.5th 591, arose out of a gang-related shooting that was carried out on a public street. (Id. at p. 598.) Two defendants spotted two rival gang members at an outdoor block party. (Id. at p. 599.) There was "strong evidence" that one of the gang members was the primary target but "conflicting evidence" whether the second gang member was also an intended target. (Id. at p. 616.) One of the defendants fired five shots at the two rival gang members, the primary target and his companion, who stood approximately 100 to 160 feet away. (Id. at p. 611.) Upon the firing of the first shot, the primary target and his companion ran away and there was evidence that bullets were "'going everywhere.'" (Id. at p. 600.) The shooter missed the primary target and his companion but hit and killed a bystander who was attending the party. (Ibid.) The defendants were convicted of the attempted murders of their primary target and his companion, and the murder of the bystander. (Id. at p. 601.)
The court considered whether an instruction on the kill zone was warranted, that is, whether "there was substantial evidence in the record that, if believed by the jury, would support a reasonable inference that defendants intended to kill everyone within the 'kill zone.' To qualify, the record would need to include (1) evidence regarding the circumstances of defendants' attack on [the primary target] that would support a reasonable inference that defendants intentionally created a zone of fatal harm around him, and (2) evidence that [the companion gang member] was located within that zone of fatal harm." (Canizales, supra, 7 Cal.5th at pp. 609-610.) The court considered the type of weapon used (a nine-millimeter handgun), the distance between the shooter and victim (100 to 160 feet away), the number of shots fired (five), the location of the shooting ("at a block party on a wide city street, not in an alleyway, cul-de-sac, or some other area or structure from which victims would have limited means of escape"), and the fact that the two gang members ran away as bullets were "'going everywhere'" and concluded that "[t]his evidence was insufficient to support instruction on the kill zone theory." (Id. at p. 611.)
The facts of the instant case are similar. The shooting here occurred on a public street, which provided a means of escape. Defendant stood closer to Susana and Alexander than did the defendants at issue in Canizales, supra, 7 Cal.5th 591, as defendant was only 15 feet away when he fired his first shot. The firing of the first single shot, however, is insufficient to demonstrate that defendant intended to create a fatal zone around Jorge. (See Perez, supra, 50 Cal.4th at p. 232 [single shot fired from 60 feet away at eight individuals insufficient for kill zone theory].) Moreover, as soon as shots were fired, Jorge, Susana, and Alexander ran away, with Alexander running in a different direction from Susana and Jorge. Michael then fired additional shots at a fleeing Alexander. While these facts amply demonstrate that defendant "'subjected persons near the primary target to lethal risk,'" they do not demonstrate that "the only reasonable inference" is that defendants intended to create a zone of fatal harm around Jorge. (Canizales, supra, 7 Cal.5th at p. 607, italics added.) Thus, there was insufficient evidence to support the giving of the kill zone instruction here.
2. Prejudice
We next address whether the trial court's error prejudiced defendant under the Chapman standard of review, that is, "'whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error.'" (Canizales, supra, 7 Cal.5th at p. 615; accord, People v. Aledamat (2019) 8 Cal.5th 1, 13 [alternative-theory error is subject to Chapman harmless error test].) Here, the court instructed the jury it could return a verdict of guilt as to the attempted murder on Count 1 and 3 if it found either that (1) defendant intended to kill the victims specifically or (2) defendant intended to kill a primary target and at the same time kill all persons in the immediate vicinity of the primary target.
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
The Attorney General argues "there was no reasonable likelihood the jury understood the kill zone instruction in a legally impermissible manner." This argument, however, goes towards the proper standard of review for prejudice when error is found. (See Canizales, supra, 7 Cal.5th at pp. 612-613.) The Attorney General does not dispute that if giving the kill zone instruction was erroneous, the Chapman prejudice test is applicable.
In Canizales, supra, 7 Cal.5th 591, the Supreme Court considered the instructions and counsels' argument to the jury. (Id. at p. 613.) It observed that the instructions the court provided to the jury referenced a "'particular zone of harm'" but "provided no further definition of the term 'kill zone.' Nor did the instruction direct the jury to consider evidence regarding the circumstances of defendants' attack when determining whether defendants 'intended to kill [the primary target] by killing everyone in the kill zone.'" (Ibid.) Similarly, here, the court instructed the jury that "[w]hether a perpetrator actually intended to kill the victim either as a primary target or someone within a kill zone is an issue to be decided by you," but did not direct the jury to consider evidence regarding the circumstances of the shooting to determine whether defendant in fact acted with the necessary intent.
As to counsel's arguments, unlike the prosecutor in Canizales, the prosecutor here did not argue the kill zone theory to the jury. The prosecutor's evidence and opening and closing arguments primarily concerned defendant and Michael's intent to kill Jorge, a rival gang member. There was no evidence that either defendant or Michael had animus toward Susana or Alexander.
The Attorney General argues that the shooting of a rival gang member's brother and girlfriend was an attack on the gang member himself. But there was no such evidence presented to the jury. McGaughey did not testify that shooting at a rival gang member's girlfriend or family member was akin to an attack on a gang member himself. More importantly, there was no evidence that either defendant or Michael knew about Susana and Alexander's relationship with Jorge at the time of the shooting. Susana testified that she knew defendant from the neighborhood, but, had never spoken to him. She also testified that she had never seen Michael until the day of the shooting. Michael denied knowing who the three victims were.
Having reviewed the record, we conclude that the error was not harmless beyond a reasonable doubt. We therefore reverse defendant's convictions for counts 1 and 3. The People may elect to retry defendant on those counts. (§ 1260.) Because we are reversing as to counts 1 and 3, defendant may raise his sentencing arguments before the trial court in the appropriate proceeding.
IV. DISPOSITION
The judgment is reversed as to the premeditated attempted murder charges in counts 1 and 3 and the cause remanded for further proceedings. The judgment is affirmed as to count 2.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.