Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA085649. Joel M. Wallenstein, Judge.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Exzavior Gaines appeals his conviction of one count of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), contending that the trial court erroneously instructed the jury on the intent required for the offense. We affirm the judgment but remand the matter to permit correction of the abstract of judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On the early morning of July 17, 2006, Demondre Patterson walked outside a liquor store and found his friend, James Cox of the Main Street Crips, arguing with Gaines, a member of the Raymond Avenue Crips, and another man. Gaines suddenly pulled a gun from his pocket and began shooting in the direction of Cox and Patterson. All three men were standing about two to four feet away from each other and there were approximately eight other people in close proximity outside the liquor store. Patterson ran as soon as he saw the gun, and he heard more than five shots. Cox was fatally wounded; Patterson was shot in the arm and hip while trying to flee.
Shortly thereafter, Gaines left the scene in a vehicle driven by his fellow gang member’s cousin, James Dunn. Police responding to the shooting stopped Dunn as he drove away and ordered the occupants to exit the car. Gaines and co-defendant Marquies Nunez fled. As Gaines ran, he pulled a firearm from his waistband and dropped it. Police recovered this weapon and arrested Gaines.
On the day of the shooting Patterson identified Gaines as the shooter from a photographic lineup. At the preliminary hearing, Patterson identified Dunn as the shooter by looking at him in the courtroom, but then looked back at the photographic lineup and returned to identifying Gaines. At trial, Patterson testified that Gaines was not the shooter.
Dunn testified that as he drove Gaines and his companion away, Gaines said, “I hit three of them.” Ballistics tests confirmed that the nine-millimeter semiautomatic pistol Gaines dropped as he fled from police was the weapon used in the shooting. Furthermore, Gaines admitted to committing the shooting during a recorded jail cell conversation in which he reported that after the men identified themselves as Main Street Crips, he “dropped all three.” Gaines said, “I slammed these niggas down like a video game.... Gunned down like a video game.”
At trial, with respect to the attempted murder charge, the court instructed the jury using CALCRIM No. 600. Gaines’s trial counsel neither objected nor requested modifications to the instruction. In his closing argument, the prosecutor argued that if Gaines “intended to kill everyone in the zone, then it’s considered like you intended to kill everybody there. You had specific intent to kill everybody.”
The jury found Gaines guilty of the first degree murder of Cox (§ 187, subd. (a)), the attempted murder of Patterson, and possession of a firearm by a felon (§ 12021, subd. (a)(1)). With respect to the murder and attempted murder, the jury also found true firearm enhancement allegations under section 12022.53, subdivisions (b), (c), and (d) and that Gaines committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced Gaines to a prison term of 90 years to life. Gaines appeals count 2.
DISCUSSION
I. CALCRIM No. 600
Pursuant to CALCRIM No. 600, the jury was instructed, in pertinent part, as follows: “A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or ‘kill zone.’ In order to convict the defendant of the attempted murder of Demondre Patterson, the People must prove that the defendant not only intended to kill James Cox, but also either intended to kill Demondre Patterson or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Demondre Patterson or intended to kill Demondre Patterson by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Demondre Patterson.”
To support a conviction for attempted murder, the prosecution must prove that the defendant acted with specific intent to kill the victim. “Unlike the mental state for murder, which does not require an intent to kill but only a conscious disregard for life (implied malice), ‘“[a]ttempted murder requires the specific intent to kill....”’ [Citation.]” (People v. Campos (2007) 156 Cal.App.4th 1228, 1242 (Campos).)
The “kill zone” theory recognizes the difficulty in establishing specific intent in situations in which a defendant indiscriminately shoots into a crowd of people with a primary target in mind. Although the defendant may have only specifically intended to ensure the harm of a primary victim, he or she can still be held liable with respect to persons in the primary victim’s vicinity by intentionally creating the zone of harm. In kill zone cases such as this, direct evidence of an intent to kill with respect to each victim is not required to establish attempted murder.
In People v. Bland (2002) 28 Cal.4th 313, 329 (Bland), the California Supreme Court held that although transferred intent does not apply to attempted murder, a concurrent intent to kill can exist such that “a person who shoots at a group of people [may] be punished for the actions towards everyone in the group even if the person primarily targeted only one of them....” If a defendant targets a primary victim by intentionally creating a zone of harm, a jury may reasonably infer that the defendant had the requisite intent to kill the others in the zone concurrent with the intent to kill the primary victim. (People v. Adams (2008) 169 Cal.App.4th 1009, 1023 [concurrent intent theory “imposes attempted murder liability where the defendant intentionally created a kill zone in order to ensure the defendant’s primary objective of killing a specific person or persons despite the recognition, or with acceptance of the fact, that a natural and probable consequence of that act would be that anyone within that zone could or would die”].)
Whether CALCRIM No. 600 erroneously defines the “kill zone” concept of concurrent intent is the issue before us on appeal. Gaines argues that the trial court committed prejudicial error and violated his due process rights by giving the jury an erroneous instruction that allowed it to convict him for the attempted murder of Patterson without finding that Patterson was within the kill zone. Specifically, he contends that the instruction’s use of the phrase “or intended to kill anyone within the kill zone” is erroneous because it simply requires an intent to harm an unspecified “anyone” in the kill zone rather than requiring “the jurors [to] infer appellant’s specific intent to kill Patterson by virtue of his presence in the kill zone.” We evaluate Gaines’s challenge by determining whether there is a reasonable likelihood the jury misunderstood and misapplied the applicable law based on the language of CALCRIM No. 600. (Bland, supra, 28 Cal.4th at p. 332; Campos, supra, 156 Cal.App.4that p. 1243.)
As an initial matter, the People contend that Gaines has forfeited this argument because he neither objected to the instruction at trial nor sought clarification of its language. However, a defendant need not assert an objection to preserve a contention of instructional error when the error affects the defendant’s substantial rights. (§ 1259; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.)
Turning to Gaines’s arguments, there was no reasonable likelihood that the jury misinterpreted the instruction or the applicable law. The facts in Campos, supra,156 Cal.App.4th1228 present a classic kill zone situation analogous to the instant case and we find its analysis applicable here. In Campos, the defendants fired a flurry of bullets at a car containing three persons, killing two passengers and injuring a third. (Id. at p. 1233.) Campos contended on appeal that the use of the word “anyone” in CALCRIM No. 600 improperly expanded the kill zone theory by permitting a conviction for attempted murder without proof that all the members of the group were subjected to the risk of death; that is, a conviction without a finding of intent to kill all the members of the group. (Id. at p. 1241.) The Campos court noted the ambiguity in CALCRIM No. 600’s use of “anyone” but found it harmless because the latter part of the instruction specifically required the jury to find that the defendant intended to kill the primary victim by harming “everyone” in the zone. (Id. at p. 1243.)
Like the defendant in Campos, supra,156 Cal.App.4th1228, Gaines claims that the use of the word “anyone” instead of “everyone” improperly expanded the kill zone concept, permitting the jury to find him guilty of attempted murder without proof that Patterson was in the kill zone. The instruction, read in its entirety, is not susceptible to that interpretation. While the instruction states that proving Gaines guilty of the attempted murder of Patterson requires proof that he intended to kill Patterson or “anyone within the kill zone,” it also adds: “If you have a reasonable doubt whether the defendant intended to kill Demondre Patterson or intended to kill Demondre Patterson by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder....” (Italics added.) We agree with the Campos court's reasoning that this last portion of CALCRIM No. 600 cures any ambiguity in the use of the word “anyone” in the earlier portion of the instruction. The instruction directed the jury that it could not find Gaines guilty of the attempted murder of Patterson under a kill zone theory unless it found that Gaines intended to harm everyone in the kill zone. (Campos, supra, 156 Cal.App.4th at p. 1243.) The prosecutor underscored this in closing argument, when he argued that Gaines could only be convicted for the attempted murder of Patterson under the kill zone theory if the jury found that Gaines “intended to kill everybody in the zone.” (Italics added.)
Therefore, when it convicted Gaines of attempted murder, the jury either found that Gaines expressly intended to kill Patterson—direct intent without recourse to the kill zone theory—or that Gaines intended to kill Patterson by killing “everyone” in the zone—concurrent intent in the kill zone context. In the latter case, the jury necessarily concluded that Patterson was within the kill zone when it found Gaines guilty of attempted murder. As such, we conclude that there is no reasonable probability that the jury misapplied the law here because the instruction did not permit the jury to convict Gaines for attempted murder on a kill zone theory without finding the specific intent to kill Patterson by virtue of his presence in the kill zone.
Ultimately, we agree with the Supreme Court’s recent assessment that while jurors are unlikely to be misled by CALCRIM No. 600, a simple revision would perfect the instruction: “In context, a jury hearing about the intent to kill anyone within the kill zone would probably interpret it as meaning the intent to kill any person who happens to be in the kill zone, i.e., everyone in the kill zone. But any possible ambiguity can easily be eliminated by changing the word ‘anyone’ to ‘everyone.’” (People v. Stone (2009) 46 Cal.4th 131, 138, fn. 3.)
II. Abstract of Judgment
As the Attorney General points out, the abstract of judgment does not correctly reflect the sentence orally imposed on count 2, the attempted murder. The abstract of judgment lists the sentence for the attempted murder as 25 years to life, with a 15-year-to-life gang enhancement, and it does not mention the firearms enhancement that was found true by the jury. In actuality, the trial court imposed a consecutive sentence of 40 years to life: the attempted willful, deliberate and premeditated murder established a life sentence, the alternative penalty under section 186.22 made the sentence 15 years to life, and the firearms enhancement under section 12022.53, subdivision (d) added another 25 years to life to the term. We remand this matter solely to direct the trial court to amend the abstract of judgment to reflect the sentence actually imposed by the trial court and to send a certified copy to the Department of Corrections. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [“Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts”].)
DISPOSITION
The clerk of the superior court is ordered to prepare an amended abstract of judgment as set forth in this opinion and to forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.