Opinion
F061321 Super. Ct. No. VCF232318
11-21-2011
THE PEOPLE, Plaintiff and Respondent, v. KEVIN GILBERT PARADEZ, Defendant and Appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi Simpson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Kevin Gilbert Paradez stands convicted of 10 counts of attempted premeditated murder and active participation in a criminal street gang. He contends the trial court erred prejudicially when it refused to instruct the jury with a requested pinpoint instruction. He further contends the trial court erroneously imposed a consecutive term for the conviction of active participation in a criminal street gang. We conclude his claims lack merit and will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On the afternoon of January 16, 2010, a group of 11 family members and friends gathered in Visalia to play football. The 11 consisted of O.G., R.G., S.B., R.H., J.G., I.G., D.O., J.V., J.M., A.V. Jr., and A.V. Sr.
One of the group, S.B., was taking photographs of the game while the others played football. S.B. saw Paradez approach the players and throw "up a sign" with his hands. S.B. saw Paradez pull out a gun and start running towards the players on the field; S.B. turned to run away. As he was running, S.B. looked back and saw Paradez shooting at the players on the field. S.B. heard 9 or 10 shots. S.B. took photos of Paradez running away from the scene of the shooting with a gun in his hand.
O.G. was on the playing field and heard bullets go past him as he tried to run away. O.G. heard about 10 shots. O.G. was shot in the back and could not identify the shooter. The bullet exited from his chest.
R.G. saw Paradez when he "threw up a sign" and recognized the action as a gang sign. When R.G. saw Paradez run toward the field, he announced to the others that Paradez was going to shoot them. R.G. heard 9 to 10 shots and saw bullets fly past him as he ran away. I.G. heard six to nine shots being fired. I.G. was able to identify Paradez as the shooter.
J.G. saw Paradez fire the first shot. J.G. heard more gunshots as he took off running. R.H. recalled seeing Paradez head toward the football players with a smile on his face and then just start shooting. R.H. heard 8 to 10 shots being fired at the football players. J.V. heard bullets fly past him as he ran away. J.V. estimated he heard nine shots.
D.O. saw Paradez walk up to the football players with his hand behind his back. D.O. heard someone yell "run" and he took off running. D.O. heard six to eight shots fired and saw several bullets strike the ground about 10 to 15 feet from him. J.M. left the park before the shooting began.
A.V. Jr. saw Paradez walk toward the football field and start shooting. As A.V. Jr. was running away, he saw two bullets strike the ground about five feet away. He heard around nine shots. A.V. Sr. also saw Paradez walk toward the football field with his hand behind his back and start shooting. At that point, A.V. Sr. yelled "run." A.V. Sr. saw Paradez fire at everyone in the crowd of players. He heard nine shots, one of which flew by his head.
Marlene Loyoza was at the park with Paradez, Gilbert Reveles, and Daniel Cardenas, when she saw the football players arrive. Loyoza knew Cardenas and Paradez were members of the South Side Kings gang. After the football players arrived, the four of them got into a white vehicle, with Cardenas driving. Loyoza saw Paradez get out of the vehicle and walk back toward the football players. At that point, she exited the vehicle because "I knew nothing good was going to happen." Loyaza heard gunshots as she walked away from the park.
Paradez ultimately was charged with 11 counts of attempted premeditated murder and active participation in a criminal street gang. As to the attempted murder counts, it was alleged that Paradez personally: (1) discharged a firearm causing great bodily injury; (2) inflicted great bodily injury; and (3) committed the offenses on behalf of, at the direction of, or in association with a criminal street gang. As to the criminal street gang count, it was alleged that Paradez personally used a firearm and personally inflicted great bodily injury.
At trial, Visalia Police Officer Dwight Brumley, a member of the gang suppression unit, testified as an expert in criminal street gangs. The South Side Kings is a subset of the Surenos. Paradez was an admitted gang member. Brumley opined that Paradez, Cardenas, and Reveles were active members of the South Side Kings at the time of the shooting.
According to Brumley, the manner in which the shooting occurred was consistent with a Sureno "walk-up" shooting. J.M., one of the initial football players at the park, was a Norteno gang member. Brumley opined that the shooting was in association with the gang, because Paradez and his fellow gang members were wearing blue, the Sureno color, and J.M. and the football players were wearing red, the Norteno color.
Before the conclusion of trial, the People moved to dismiss one of the attempted murder counts; the trial court granted the motion. The jury found Paradez guilty of all remaining charges and found all enhancements to be true. The trial court imposed concurrent terms of 40 years to life for the attempted murder convictions and enhancements; plus consecutive terms of three years for active participation in a street gang; 10 years for personal use of a firearm, and three years for personally inflicting great bodily injury.
DISCUSSION
Paradez contends his convictions for attempted murder must be overturned because the trial court refused to instruct the jury with his requested pinpoint instruction. He also contends the trial court erred in imposing a consecutive term for the active participation in a criminal street gang conviction and enhancements.
I. Pinpoint Instruction
Paradez requested the trial court instruct the jury with the following pinpoint instruction:
"A single shot cannot intend to kill more than one person unless you conclude hat [sic] more than one person was in the line of fire of the shot and that a bullet could have passed through one person and killed another."
The trial court declined to give the pinpoint instruction. The trial court did not err.
Analysis
The jury was instructed with CALCRIM No. 600, attempted murder. In relevant part, that instruction stated:
"A person may intend to kill a specific victim or victims and at the same time concurrently intend to kill everyone. In order to convict the defendant of the attempted murders of [each of the alleged victims], the People must prove that the defendant not only intended to kill one of these people but also either intended to kill some, or intended to kill everyone. If you have a reasonable doubt whether the defendant intended to kill any one particular person or intended to kill any one particular person by killing everyone, then you must find the defendant not guilty of the attempted murder of those people who you find that he did not intend to kill."
This language is designed for use in cases where the prosecution theory of the case is that the defendant created a "kill zone." (Bench Notes to CALCRIM No. 600.) A person who shoots at a group of people may be found guilty of the attempted murder of everyone in the group, even if he or she primarily targeted only one of them, if the person also, concurrently, intended to kill others within what has been termed the "kill zone." (People v. Bland (2002) 28 Cal.4th 313, 329 (Bland).)
Paradez's pinpoint instruction was directed at the "kill zone" theory of the case asserted by the prosecution. Paradez "proposed an instruction focusing on the conflicting evidence of how many shots were fired as that relates to specific intent to kill." We take this to mean that Paradez's position is that the number of attempted murder counts of which he could potentially be convicted had to equate exactly to the number of bullets he fired. This, however, is not an accurate statement of the law. A shooter who fires a single bullet in the direction of two potential victims can be found guilty of two counts of attempted murder. (People v. Smith (2005) 37 Cal.4th 733, 744.)
"[A] shooter may be convicted of multiple counts of attempted murder on a 'kill zone' theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the 'kill zone') as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm. [Citation.]" (People v. Smith, supra, 37 Cal.4th at pp. 745-746.) Where the means employed to commit the crime against a victim creates a zone of harm around that victim, the jury can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. (People v. Vang (2001) 87 Cal.App.4th 554, 563-564.)
Contrary to Paradez's contention, the proffered pinpoint instruction is not a rational extension of the holding of People v. Perez (2010) 50 Cal.4th 222, 225, 230-231, where the California Supreme Court concluded that the indiscriminate firing of a single shot at a group of persons, without more, does not amount to attempted murder of everyone in group. Here, four witnesses heard up to 10 shots. Other witnesses remembered hearing multiple shots, but fewer than 10 shots. All the evidence established that multiple shots were fired at the group; multiple victims heard and felt bullets going by them as they ran away; multiple witnesses saw Paradez firing at different members of the group playing football.
In People v. Vang, supra, 87 Cal.App.4th 554, the defendants shot at two occupied houses. The Court of Appeal affirmed attempted murder charges as to everyone in both houses (11 counts) even though the defendants may have targeted only one person at each house. "The jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up. . . . The fact they could not see all of their victims did not somehow negate their express malice or intent to kill as to those victims who were present and in harm's way, but fortuitously were not killed." (Id. at pp. 563-564; see also People v. Gaither (1959) 173 Cal.App.2d 662, 666-667 [defendant mailed poisoned candy to his wife; convictions for administering poison with intent to kill affirmed as to others who lived at the residence even if not a primary target].)
Paradez fired multiple bullets; he was seen pointing the gun in different directions as the football players attempted to flee the scene of the shooting. "[T]o be found guilty of attempted murder, the defendant must either have intended to kill a particular individual or individuals or the nature of his attack must be such that it is reasonable to infer that the defendant intended to kill everyone in a particular location as the means to some other end, e.g., killing some particular person." (People v. Anzalone (2006) 141 Cal.App.4th 380, 393.)
The pinpoint instruction was not an accurate statement of the law regarding attempted murder on a "kill zone" theory and the trial court was correct in refusing to instruct the jury with the pinpoint instruction for this reason alone.
If we assume for purposes of argument that Paradez's proffered instruction was an accurate statement of the law, it does not follow that the trial court erred in refusing the instruction. The quoted portion of CALCRIM No. 600 set forth above instructs on the kill zone theory of attempted murder. A trial court need not give a pinpoint instruction if it is argumentative, duplicative, or unsupported by the evidence. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99; People v. Barajas (2004) 120 Cal.App.4th 787, 791.)
As was explained in Bland, "This concurrent intent [i.e., 'kill zone'] theory is not a legal doctrine requiring special jury instructions . . . ." (Bland, supra, 28 Cal.4th at p. 331, fn. 6.) The pinpoint instruction proffered by Paradez, if accurate, would have been duplicative of the CALCRIM No. 600 instruction.
Therefore, we conclude the trial court did not err in refusing to instruct the jury with Paradez's pinpoint instruction.
II. Consecutive Term
Paradez contends the trial court erred in imposing a consecutive term for the offense of active participation in a criminal street gang, contending the term should have been stayed pursuant to Penal Code section 654. Paradez is mistaken. The attempted murder offenses had a separate intent and objective from the offense of active participation in a criminal street gang.
References to code sections are to the Penal Code unless otherwise specified.
Analysis
Section 654, subdivision (a), states: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"With respect to punishment imposed under statutes that define a criminal offense, it is well settled that '[s]ection 654 bars multiple punishments for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective.' [Citation.]" (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) A trial court's implied finding that appellant had a separate intent and objective for each charged offense will be upheld if it is supported by substantial evidence. (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310 (Sanchez).)If a trial court violates the statute, the proper remedy is to stay execution of sentence on the count with the lesser penalty. (People v. Beamon (1973) 8 Cal.3d 625, 639-640; People v. Davis (1989) 211 Cal.App.3d 317, 323.) A defendant is not required to object in the trial court in order to preserve a section 654 claim for review on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17.)
Whether section 654 precludes multiple punishment for active participation in a criminal gang and for the underlying offense has not been clearly established in California. Recently, in Sanchez, Division Two of the Fourth Appellate District held that section 654 precludes multiple punishment for both the crime of gang participation, which requires that the defendant have "'willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of [the] gang,'" and the underlying felony. (Sanchez, 179 Cal.App.4th at p. 1315.) To the appellate court, "the underlying robberies were the act that transformed mere gang membership—which, by itself, is not a crime— into the crime of gang participation. Accordingly, it makes no sense to say that defendant had a different intent and objective in committing the crime of gang participation than he did in committing the robberies." (Ibid.)Thus, where "the only way the jury could have found defendant guilty of gang participation was by finding that he committed the underlying robberies," section 654 precludes multiple punishment. (Sanchez, supra, at p. 1316, fn. omitted.)
The California Supreme Court granted review in People v. Mesa, review granted October 27, 2010, S185688, and People v. Duarte, review granted February 23, 2011, S189174, both of which address this issue.
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The Sixth Appellate District in In re Jose P. (2003) 106 Cal.App.4th 458, however, reached a different conclusion from Sanchez. The Jose P. court held that section 654 did not preclude multiple punishments for gang participation and the underlying offense, which was robbery in that case. According to the Sixth Appellate District decision, "the record supports a finding that [defendant] harbored the separate intent and objective to participate in the gang." (Jose P., supra, at p. 471.) "Evidence of that intent was abundant. The minor had been actively involved in gangs since at least 1999. He was arrested along with a gang member for car theft. He was expelled from school for a gang fight. His brothers were gang members." (Ibid.) "[Defendant's] intent and objective in committing the robbery was to take the property located in the home. Application of the [gang] enhancement does not alter the fact that he must also have had the intent to take the property. While he may have pursued the two objectives simultaneously, the objectives were nevertheless independent of each other. Therefore, section 654 does not bar punishment for both the gang crime and the robbery." (Ibid.)
Division Three of the Fourth Appellate District, in the case of People v. Ferraez (2003) 112 Cal.App.4th 925, 935, held that multiple punishment for the crime of active participation in a criminal street gang and the underlying offense was permissible as long as the underlying offense requires a different specific intent.
In a case squarely on point with the facts of Paradez's case, Division Three of the Fourth Appellate District in the case of People v. Herrera (1999) 70 Cal.App.4th 1456, held that section 654 did not bar multiple punishment for a defendant convicted of attempted murder and the crime of active participation in a street gang. As the Herrera court explained, the "characteristics of attempted murder and street terrorism are distinguishable, even though aspects of one may be similar to those of the other. In the attempted murders, [the defendant's] objective was simply a desire to kill." (Herrera, at pp. 1466-1467.) The Herrera court further explained, that "section 186.22, subdivision (a), encompasses a more complex intent and objective." (Id. at p. 1467.) As the Herrera court noted, "Finally, if section 654 were held applicable here, it would render section 186.22, subdivision (a) a nullity whenever a gang member was convicted of the substantive crime committed in furtherance of the gang." (Id. at p. 1468.)
We agree with the Herrera court that the purpose of section 654 is to ensure that a defendant's punishment is commensurate with his or her ability and "[w]e do not believe the Legislature intended to exempt the most culpable parties from the punishment under the street terrorism statutes." (People v. Herrera, supra, 70 Cal.App.4th at p. 1468, fn. omitted.)
We find Herrera and Ferraez persuasive and applicable to this case. Attempted murder committed for the benefit of a criminal street gang (§ 186.22, subd. (b)) is a single act. Attempted murder committed while actively participating in a criminal street gang (§ 186.22, subd. (a)) is two separate, albeit simultaneous acts: the attempted killings and the active participation in the criminal street gang. Subdivisions (a) and (b) of section 186.22 do not proscribe the same conduct, nor are attempted murder and active participation in a criminal street gang committed pursuant to the same intent and objective. (See People v. Ybarra (2008) 166 Cal.App.4th 1069, 1095-1096.) As the acts here had independent, albeit simultaneous objectives, section 654 did not preclude Paradez from being punished for both. (People v. Ferraez, supra, 112 Cal.App.4th at p. 935; People v. Herrera, supra, 70 Cal.App.4th at pp. 1466-1468.)
DISPOSITION
The judgment is affirmed.
LEVY, Acting P.J. WE CONCUR: CORNELL, J. FRANSON, J.