Opinion
B281093
04-30-2021
In re PATRICK DONALD EVANS, on Habeas Corpus.
Law Offices of Tarik S. Adlai and Tarik S. Adlai for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne, Ana R. Duarte, and William H. Shin, Deputy Attorneys General, for 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA314873) ORIGINAL PROCEEDINGS; Petition for Writ of Habeas Corpus. Bob S. Bowers, Jr., Judge. Petition granted. Law Offices of Tarik S. Adlai and Tarik S. Adlai for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne, Ana R. Duarte, and William H. Shin, Deputy Attorneys General, for Respondent.
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A jury found Patrick Donald Evans guilty of attempted murder after being given a kill zone instruction. Years later, our California Supreme Court decided People v. Canizales (2019) 7 Cal.5th 591 (Canizales), which clarified and restricted the scope of the kill zone theory. Evans petitioned for a writ of habeas corpus and argued, per Canizales, that there was insufficient evidence to support instructing on the kill zone. We issued an order to show cause and now find that Evans is entitled to relief.
BACKGROUND
One night in December 2006, the victims, Russell Connine and Carlos Renteria, were at a house party. Both were Avenues gang members, and the house was in their gang's territory. Evans, however, was a Toonerville gang member. The Toonerville and Avenues gangs were rivals.
The night of the party, a DJ was playing music in the house's large backyard. Estimates of how many people were at the party ranged from 50 to 150. A driveway sloped down alongside the house to the backyard, where the party was being held, primarily outside. A car was parked in the driveway, followed by a van, followed by a horse trailer at the bottom of the driveway nearest to the backyard. The vehicles bounded the driveway on one side and the house bounded the driveway on the other. About eight stairs at the back led into the house.
Connine and Renteria went to the party with friends, including Daniel Cruz. Cruz was near the house and the others had gone ahead down the driveway toward the backyard when a fight between some women broke out in the backyard. Cruz heard a shot and saw Connine and Renteria dive in different directions. Cruz saw two shooters. One, a man matching Evans's physical description, was firing at Connine with a sawed-off shotgun. The other shooter had a handgun. Cruz thought the shooting was "random."
Juan Rodriguez and Eduardo Abea were also at the party. They had gone to school with Evans. According to Abea, gunshots were fired just after the women got into the fight. He heard one gunshot, silence for five seconds, and then three more gunshots. Rodriguez had just turned the corner of the house when he saw the "victim" punch the shooter, who he identified as Evans. Evans was about 10 feet from Rodriguez. Evans then pulled out a gun and fired at the victim's face. Rodriguez thought the gun had a silencer. As Rodriguez retreated from the gunshots and headed to the stairs to the house, five to six more shots were fired, and he saw a man on the ground who had been shot in the leg. It is unclear if this was Renteria. After the shooting, Rodriguez was leaving when he saw a man carrying a girl who had been shot, perhaps in the leg.
Rodriguez did not identify the victim by name, but a reasonable inference is he was referring to Connine. At trial, Rodriguez retracted his prior statement identifying Evans.
Connine's body was found in the backyard. He had been shot five times, and three .22-caliber bullets were recovered from his body. Three entrance wounds were to Connine's back. Renteria had also been shot, so friends took him to the hospital where he was treated for multiple gunshot wounds to the lower part of his body.
Renteria did not testify.
One .45-caliber shell casing was recovered from the middle of the driveway. One expended .45-caliber bullet was also recovered. Ten .22-caliber shell casings were also recovered from the driveway.
Law enforcement recovered the weapon that fired the .22-caliber casings from a residence linked to the Toonerville gang. However, firearms testing was inconclusive as to whether the three bullets recovered from Connine's body were fired from that weapon, but they could have been fired from a firearm with the same class characteristics.
At Evans's criminal trial for the murder of Connine and attempted murder of Renteria, the trial court instructed the jury it could find Evans guilty of attempted murder if it found Evans specifically intended to kill Renteria or under the kill zone theory. The jury found Evans guilty of the second degree murder of Connine (Pen. Code, § 187, subd. (a); count 1) and the attempted murder of Renteria (§§ 664, 187, subd. (a); count 2). The jury found true personal and principal gun use allegations (§ 12022.53, subds. (b), (c), (d), (e)(1); counts 1 & 2), and a gang allegation (§ 186.22, subd. (b)(1)(C); counts 1 & 2). The jury found not true the allegation that the attempted murder was committed willfully, deliberately and with premeditation (§ 664, subd. (a)). In 2009, the trial court sentenced Evans to a determinate term of 17 years plus an indeterminate term of 65 years to life.
All further undesignated statutory references are to the Penal Code.
This Division affirmed Evans's judgment of conviction on direct appeal in People v. Evans (Mar. 4, 2011, B216458) [nonpub. opn.]. Review in the California Supreme Court was denied that year. His case is final. (See, e.g., People v. Smith (2015) 234 Cal.App.4th 1460, 1465.) Over the ensuing years, Evans filed multiple state and federal habeas petitions. The petition now before us raised multiple claims, but we issued an order to show cause on just one: whether the trial court erred by instructing on the kill zone theory.
We take judicial notice of that opinion and of the appellate record in that case. (Evid. Code, §§ 451, subd. (a), 452, subd. (d).)
The People do not argue in their return that there is any procedural bar to Evans's claim regarding the kill zone theory based on those prior petitions. In any event, such an argument would likely be unavailing. (See, e.g., In re Martinez (2017) 3 Cal.5th 1216, 1224-1225.)
DISCUSSION
I. Overview of the kill zone theory and Canizales
We begin with an overview of the kill zone theory and Canizales before addressing whether that decision is retroactive to cases final on appeal, and, if so, whether there is sufficient evidence to support the theory.
The jury here found Evans guilty of attempting to murder Renteria. Attempted murder requires the prosecution to establish a specific intent to kill and a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623.) Because attempted murder requires a specific intent to kill, what happens when the defendant intends to kill A and, in doing so or trying to do so, uses a method of attack that may, and perhaps does, wound B? Under what theory may the defendant be found guilty of attempting to kill B? To address a variation of that situation, where the killer intends to kill one person and everyone in that person's immediate vicinity to ensure the intended victim's death, California adopted the kill zone theory in People v. Bland (2002) 28 Cal.4th 313, 330. Bland "embraced the concept of a concurrent intent to kill as a permissible theory for establishing" attempted murder's specific intent requirement. (Canizales, supra, 7 Cal.5th at p. 602.) Thus, where the means employed to kill a primary target creates a zone of harm around that primary target, the factfinder can reasonably infer that the defendant concurrently intended to harm everyone in that zone. (Bland, at p. 330.)
The classic kill zone example is where the defendant places a bomb on an airplane, intending to kill one primary target by a method sure to kill all on board. (People v. Bland, supra, 28 Cal.4th at pp. 329-330.) Bland, at pages 330 to 331, involved a more common scenario, where the defendant shot a flurry of bullets at a fleeing car, killing the primary target and injuring passengers. Notwithstanding these seemingly clear examples, conflict arose after Bland about the evidentiary basis necessary to apply and to instruct on the kill zone theory for establishing the intent to kill element of attempted murder. Our California Supreme Court granted review in Canizales to resolve that conflict. (Canizales, supra, 7 Cal.5th at p. 602.)
Canizales arose out of a gang-related shooting at a neighborhood block party. On the afternoon of the party, the defendant Canizales argued with two men. (Canizales, supra, 7 Cal.5th at p. 598.) Later that day, Canizales, his codefendant, and others headed to the party. The two men with whom Canizales had argued were at the party. Just before the shooting, five or six men, including Canizales, lined up shoulder to shoulder facing the street where the two men were standing. (Id. at pp. 599, 609.) On seeing the primary target, Canizales's codefendant yelled out to start shooting. (Id. at p. 609.) The codefendant, with Canizales at his side, shot at the two men. The shooter fired five shots from a nine-millimeter gun from 100 or 160 feet away, killing a bystander but leaving the two men uninjured. (Id. at p. 611.) One victim thought that the shooter could not control his gun, so bullets went everywhere. (Id. at p. 600.)
At Canizales's and his codefendant's subsequent trial for the bystander's murder and attempted murders of the two men, the jury was instructed on the kill zone theory. (Canizales, supra, 7 Cal.5th at pp. 600-601.) The prosecutor argued that the defendants could be found guilty of the attempted murders under either that theory or that the defendants had the specific intent to kill the two men. (Id. at p. 601.) Canizales and his codefendant were found guilty of murder and two counts of attempted murder. (Id. at pp. 597, 601.)
On review, the Supreme Court first discussed how the kill zone theory had been misapplied and the disagreements it had engendered in appellate courts, including in the Supreme Court. (Canizales, supra, 7 Cal.5th at pp. 603-607.) To clarify the matter, the court held that instruction on the kill zone theory is proper when "(1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target; and (2) the alleged attempted murder victim who was not the primary target" was in that zone of harm. (Id. at p. 607, italics added.) The kill zone theory requires evidence of a primary target. (Id. at p. 608.) To determine the defendant's intent to create a zone of fatal harm and the scope of any zone, the jury should consider the circumstances of the attack, such as the weapon used, the number of shots fired, the distance between the defendant and alleged victims, and the alleged victims' proximity to the primary target. (Id. at p. 607.) If this evidence shows that the defendant acted with only conscious disregard of the risk of serious injury or death for those around a primary target, rather than an intent to kill everyone in the kill zone, a kill zone instruction is improper. (Ibid.) Using force that merely endangers everyone in the area will not warrant the instruction. (Id. at p. 608.) This refinement of the kill zone theory means that instruction on it will be relatively rare. (Ibid.)
Applying this refined kill zone theory, Canizales found there was insufficient evidence that the only reasonable inference that could be reached was that the defendants intended to kill everyone in the kill zone. The number of shots fired, five, was relevant but not dispositive. "Rather, the number of shots fired is simply one of the evidentiary factors to consider when assessing whether the type and extent of the defendant's attack supports instruction on the kill zone theory." (Canizales, supra, 7 Cal.5th at p. 610.) Firing a limited number of shots at a distance of 100 to 160 feet on a wide city street did not raise a reasonable inference that the defendants intended to create a kill zone around the primary target. (Id. at pp. 611-612.) That neither of the two victims were struck, the limited number of shots fired, the defendants' lack of proximity to the primary target, and the openness of the area where the attack occurred diminished any inference that the defendants intended to create a zone of fatal harm around the primary target.
Because the evidence was insufficient to support instruction on the kill zone theory, Canizales next considered whether the error required reversal. As we discuss in greater detail later, the court found the standard kill zone instruction inadequate and the error to be one of a federal constitutional magnitude. (Canizales, supra, 7 Cal.5th at pp. 612-618.) The court therefore reversed the attempted murder convictions. II. Canizales has retroactive effect.
Canizales did not address whether its holding is to be retroactively applied to cases final on appeal. However, a habeas corpus petitioner generally may obtain relief when a change in law affects the petitioner. (In re Harris (1993) 5 Cal.4th 813, 841.) To obtain relief, the change in law must have retroactive effect. (In re Hansen (2014) 227 Cal.App.4th 906, 917 (Hansen).) The People contend we need not reach the petition's merits because any change in law effected by Canizales does not apply retroactively to cases like Evans's, which is final on appeal. We disagree.
As one court has observed, retroactivity jurisprudence is convoluted, given its divergent roots in federal and state law. (In re Thomas (2018) 30 Cal.App.5th 744.) Still, the general rule is judicial decisions are retroactive. (Woosley v. State of California (1992) 3 Cal.4th 758, 793-794.) Notwithstanding the general rule, no single test determines when a decision applies retroactively to convictions final on appeal. (Hansen, supra, 227 Cal.App.4th at p. 917.)
It is unnecessary here to delve into federal retroactivity law, because, as we explain, California's retroactivity law resolves the matter. (See, e.g., People v. Mutch (1971) 4 Cal.3d 389, 394 [unnecessary to undertake "perilous" task of applying federal retroactivity law] (Mutch).)
Mutch, supra, 4 Cal.3d 389, articulated one test. Mutch considered the retroactive effect of a new case interpreting and limiting the asportation aspect of kidnapping to commit robbery under section 209. As all crimes in California are statutory, Mutch reasoned that a new interpretation of a statute is not a change in law. (Mutch, at p. 394.) The new case did not redefine a crime or change evidentiary or procedural rules; "instead, it confirmed a substantive definition of crime duly promulgated by the Legislature." (Id. at p. 395.) Stated otherwise, what the Mutch defendant did was never proscribed. (Id. at p. 396.) A decision vindicating an enactment's original meaning, thereby putting into effect the policy intended from its inception, must be applied retroactively to accomplish that aim. (Woosley v. State of California, supra, 3 Cal.4th at p. 794; accord, In re Martinez, supra, 3 Cal.5th at p. 1222 [change in criminal law retroactive when rule is substantive or when decision vindicates statute's original meaning].)
The new case held that movement of a victim in the course of a robbery that does not substantially increase the risk of harm above that necessary to commit the robbery does not satisfy the asportation element of aggravated kidnapping.
Another retroactivity test has been applied to cases involving procedural questions. (In re Johnson (1970) 3 Cal.3d 404, 410; Hansen, supra, 227 Cal.App.4th at p. 917.) This tripartite test focuses on (1) the purpose the new standards serve, (2) the extent to which law enforcement relied on the old standards, and (3) the effect retroactive application of the new standards would have on administrating justice. (Hansen, at p. 917.) Hansen considered whether People v. Chun (2009) 45 Cal.4th 1172 applied retroactively. Overruling prior precedent, Chun, at page 1199, held that the crime of shooting at an inhabited dwelling merged with the resulting homicide, so that the second degree felony-murder rule could not apply. Using the tripartite test, Hansen found that Chun applied retroactively to cases final on appeal because Chun narrowed the class of conduct constituting second degree felony murder, and therefore some defendants convicted under the second degree felony-murder rule would now be innocent of murder. ( Hansen, at pp. 919-920.)
Although Hansen applied the tripartite test, the court noted that the Mutch retroactivity test arguably applied. However, Hansen, supra, 227 Cal.App.4th at page 919, footnote 3, declined to address Mutch because it had not been briefed, and the result was the same under either test.
The Mutch test is most apt here. All crimes in California, including attempted murder, are statutory. (In re Brown (1973) 9 Cal.3d 612, 624.) Canizales did not redefine attempted murder. It instead confirmed a substantive definition of it by clarifying the scope of the kill zone theory. And, while Canizales reaffirmed the theory of concurrent intent to kill to prove attempted murder that Bland had articulated, Canizales limited the scope of that theory to make it more in line with the Legislature's original intent. Our colleagues in Division Seven agree that Canizales "limited the application of the kill zone theory to correct the overbroad application of the theory by several Courts of Appeal," and, in doing so, declared the Legislature's intent. (In re Rayford (2020) 50 Cal.App.5th 754, 777 (Rayford).) Division Seven concluded that Canizales applies retroactively to cases final on appeal. (Rayford, at pp. 776-778.) We agree with Division Seven's analysis and thus conclude that a judgment of conviction is open to collateral attack. (See, e.g., Mutch, supra, 4 Cal.3d at p. 396.)
Further support for applying Canizales retroactively is found in analogous situations. For example, similar to how Canizales clarified and narrowed the kill zone theory, People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, clarified and narrowed the definitions of "major participant" and "reckless indifference to human life" in the special circumstance statute, section 190.2, subdivision (d). In finding that those cases applied retroactively to cases final on appeal, the court in In re Miller (2017) 14 Cal.App.5th 960, 979, also applied the Mutch test. Because Banks and Clark did not create new law but simply stated what section 190.2, subdivision (d), has always meant, there was no procedural bar to the petitioner's habeas corpus claim. (In re Miller, at p. 979.) The court also observed that an overarching, dispositive principle was at play: due process. (Id. at p. 977; accord, In re Ramirez (2019) 32 Cal.App.5th 384, 406-407.) That is, the Fourteenth Amendment of the federal constitution prohibits convicting a person of a crime without proving its elements beyond a reasonable doubt. (In re Miller, at p. 977; see generally Fiore v. White (2001) 531 U.S. 225, 228-229.) Thus, aside from whether and what test of retroactivity applies, due process would be implicated should a person be found guilty of attempted murder without sufficient evidence that person had the requisite mens rea.
The People counter that Canizales is not retroactive because it did not announce a new rule of law. The People rely on People v. Guerra (1984) 37 Cal.3d 385, 395, which said that retroactivity does not arise when decisions do not establish a new rule. A rule is new if it overrules precedent, disapproves a practice impliedly sanctioned by prior Supreme Court decisions, or disapproves a longstanding and widespread practice approved by a near-unanimous body of lower courts. (Id. at p. 401.) However, Guerra's retroactivity discussion was in the context of convictions not final on appeal, as opposed to convictions final on appeal. (Id. at p. 413, fn. 24; see Hansen, supra, 227 Cal.App.4th at p. 917, fn. 2.) Guerra is therefore not on point. (See, e.g., Rayford, supra, 50 Cal.App.5th at p. 778, fn. 17 [People's reliance on Guerra "misplaced"].)
The People also misconstrue Canizales's references to "future cases" and "going forward" as signals of the court's intent its decision apply prospectively only. (Canizales, supra, 7 Cal.5th at pp. 606, 608.) Canizales, at page 597, advised trial courts to be careful in using the kill zone theory, as "past cases" revealed a substantial potential of misapplication to a defendant acting with only conscious disregard of the risk that others may be injured or killed. The court then said, "Accordingly, in future cases" the theory should be applied sparingly, where there is sufficient evidence from which the jury could find that the only reasonable inference is the defendant intended to kill—and not merely to endanger or harm—everyone in the zone of fatal harm. (Ibid.; see also id. at pp. 606-607.) The court emphasized that "going forward" trial courts must be cautious in giving the instruction and observed it would apply in relatively few cases. (Id. at p. 608.) Placing these comments in context, the court was merely juxtaposing what had happened in past cases with what should happen going forward, in future cases. The court was not commenting on retroactivity. Indeed, when the court has intended a decision to operate prospectively, it has said so clearly. (See, e.g., Sumner v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 965, 972 [we "make this declaration prospective"].)
We therefore find that whether under Mutch or per the demands of due process, Canizales applies to cases final on appeal. Accordingly, we turn to whether there was sufficient evidence to support instructing on that theory at Evans's trial. III. The evidence was insufficient to support a kill zone theory.
Canizales found that there was insufficient evidence in that case to support instructing the jury on the kill zone. Evans contends that the evidence here is similarly insufficient. We agree.
To determine whether there was sufficient evidence to give a kill zone instruction, we first look at the circumstances of the attack on the primary target to determine if the only reasonable inference is Evans intended to create a zone of fatal harm around the primary target. (Canizales, supra, 7 Cal.5th at p. 607.) The circumstances of the attack include considering the weapon used, the number of shots fired, Evans's proximity to the victims, and Renteria's proximity to Connine. (Ibid.) Second, we must determine whether Renteria was in the zone of harm. (Ibid.)
First, the circumstances of the attack suggest that Connine was the primary target because a witness saw the "victim," inferentially Connine, hit Evans, who then pulled out a sawed-off .22-caliber shotgun and fired multiple shots. Ballistics evidence suggested that Evans fired 10 shots, and a second shooter fired at least one shot from a .45-caliber gun. It is unclear, however, what inference arises from the types of guns used. A gang expert did testify that a shotgun is an offensive weapon while a handgun is generally a defensive one. However, even if this evidence raises an inference that Evans went to the party to cause trouble, it seems a leap to say that he intended to do so by creating a kill zone.
Otherwise, nothing about the weapons used here shows an intent to create a kill zone. They are not akin to the high-powered, "wall-piercing" weapons used in People v. Vang (2001) 87 Cal.App.4th 554, 564, to spray bullets at a duplex building. That court affirmed 11 attempted murder convictions even though the shooters might have targeted only one person at each unit. (Id. at pp. 563-565.) Nor are the guns here like an AK-47 assault rifle whose rounds can penetrate substantial barriers. (See, e.g., People v. Cerda (2020) 45 Cal.App.5th 1, 16, review granted on another point May 13, 2020, S260915.) Firing sixteen shots from an AK-47 that decimates a house evidences an intent to create a kill zone, thereby warranting instruction on that theory. (Id. at pp. 16-18.)
While the 10 shots Evans fired here are more than the five shots fired in Canizales, supra, 7 Cal.5th at page 611, the court did not suggest that anything more than five shots would evince an intent to create a kill zone. Instead, while the number of shots fired is relevant, it is not dispositive of an intent to create a kill zone. That is why the totality of the circumstances must be considered. (Id. at p. 609.) Looking to other circumstances of the attack, it could be that the shooting occurred at a closer range than in Canizales, where the shooter was 100 to 160 feet from the primary target. (Id. at p. 600.) Still, it is unclear how long the driveway was and where Evans was in relation to the victims. There was some evidence Evans was close to Connine when Connine was shot. That is, Rodriguez was 10 feet from Evans when he saw Connine punch Evans, who then pulled out a gun and shot Connine. To the extent it is reasonable to infer that Connine and Renteria were near each other, they therefore could have been within 10 feet of Evans when Evans fired the first shot. Based on this close proximity, one reasonable inference is that Evans intended to shoot only Connine and kept firing as Connine ran, in conscious disregard that others could be seriously injured or killed. That being so, we cannot find that the only reasonable inference from this evidence is Evans intended to create a zone of fatal harm.
People v. Booker (2020) 58 Cal.App.5th 482, 499, similarly held that giving a kill zone instruction was erroneous under the circumstances of that case, even though the shooter was in close proximity to the victims and the victims were in close proximity to each other. In that case, the two defendants and the two victims had a brief encounter in a store. Soon after the victims left in a car, the defendants' car pulled alongside them, and the shooter fired three to seven shots at the victims' car, killing the driver but leaving the passenger uninjured. (Id. at p. 500.) Booker acknowledged that the proximity of all involved weighed in favor of a kill zone theory. (Id. at pp. 499-500.) Even so, the type and extent of force did not support a reasonable inference the defendants intended to kill everyone in the car. (Id. at p. 500.) Rather, the circumstances suggested that the attack was directed at the driver. Thus, the evidence showed at most a conscious disregard of the risk the passenger might be injured or killed. (Ibid.)
Another factor we must consider is the location of the shooting. The shooting here occurred in an area offering avenues of escape more limited than did the open city street in Canizales, so that intent to create a zone of fatal harm might be inferred. (Canizales, supra, 7 Cal.5th at p. 611.) But this was also true in Rayford, where, as here, the shooting occurred outside a house, and the court found that giving the kill zone instruction was error. (Rayford, supra, 50 Cal.App.5th at p. 780.) The court said that although egress from the fray was more constricted than in Canizales, "the house's front yard and door provided maneuvering space for those congregated to avoid fatal injury" and for all but two people to avoid any physical injury. (Rayford, at p. 780; see also People v. Booker, supra, 58 Cal.App.5th at p. 488 [limited escape available from car].) Here too the shooting occurred outside, with the shooters standing on a long driveway that had three vehicles parked on it. Perhaps the driveway is similar to an alleyway, which Canizales offered as an example of a location affording little escape. (Canizales, at p. 611.) Still, persons at the party in this case could and did escape into the front and back yards. Stairs leading into the house also afforded refuge.
Two other cars were involved in the incident in Booker, one of which, the evidence suggested, was positioned immediately in front of the victims' car when the shooting occurred. (Booker, supra, 58 Cal.App.5th at p. 488.) Although Booker did not make this argument, this could have evidenced an attempt to box the victims' car in, thereby cutting off an avenue of escape.
Second, there had to be evidence that Renteria was in the zone of fatal harm to support a finding that Evans harbored the requisite intent to kill. (See, e.g., Canizales, supra, 7 Cal.5th at p. 607.) However, little is known about the circumstances surrounding the shooting of Renteria other than that he was shot. Given that one witness suggested Renteria and Connine headed into the party together, it is reasonable to infer that Renteria and Connine were next to or near each other when the shooting happened. But it is not the only inference, as there is no clear evidence of where Renteria was when he was shot. Renteria was found in the backyard near the DJ, so he could have been near the DJ when shot or on the driveway. Thus, this case is not like one in which the two defendants fired multiple shots at two people walking side-by-side in such close proximity that they fell into each other. (People v. Windfield (2021) 59 Cal.App.5th 496, 517.) There was also evidence in Windfield that the attempted murder victim tried to shield the primary target. (Id. at p. 518.) Instruction on the kill zone was therefore warranted in that case. In contrast, there is no evidence that Renteria was so close to Connine when they were both shot that they fell into each other. In fact, no witness testified as to Renteria's location when the shooting started.
Given the totality of this evidence and taking heed of our Supreme Court's warning that the kill zone theory will apply to relatively few cases, we cannot find that the only reasonable inference is Evans intended to create a fatal zone of harm around Connine to ensure Connine's death and that Renteria was in that zone. Rather, the evidence shows that Evans used force that merely endangered everyone in the area. Instructing on the kill zone was therefore improper. (Canizales, supra, 7 Cal.5th at p. 608.) IV. Instructing on the kill zone was prejudicial error.
Having found that the trial court erred by instructing the jury on the kill zone, was the error prejudicial? The People argue it was not because the instructions given in Evans's case establish that the jury must have found he had the specific intent to kill Renteria. We conclude otherwise.
How we evaluate prejudice depends on whether the jury was instructed on a theory not factually supported by the evidence or on a theory contrary to law, that is, legally inadequate. (Rayford, supra, 50 Cal.App.5th at p. 781.) Instructing on a factually inadequate theory is reviewed under the less stringent People v. Watson (1956) 46 Cal.2d 818, 836 to 837, standard. Instructing on a legally inadequate theory is error of federal constitutional magnitude and thus reviewed under the more demanding Chapman v. California (1967) 386 U.S. 18 standard. (People v. Aledamat (2019) 8 Cal.5th 1, 13.) Under Chapman, we "must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances," the error was harmless beyond a reasonable doubt. (Aledamat, at p. 13.) To determine whether the jury was instructed on a legally inadequate theory, we ask whether there is a reasonable likelihood the jury understood the kill zone instruction in a legally impermissible way, considering the totality of the instructions and counsel's argument. (Canizales, supra, 7 Cal.5th at p. 613.)
Using that more demanding analysis, Canizales found that the kill zone instruction given there, CALCRIM No. 600, was not merely factually inadequate; it was legally inadequate. (Canizales, supra, 7 Cal.5th at pp. 613-614.) The instruction stated that a "person may intend to kill a particular victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone.' " (Id. at p. 601, fn. 3, italics added.) Further, the People had to prove that the defendants intended to kill the primary target and the alleged attempted murder victim or everyone in the kill zone. (Ibid.) If the jury had a reasonable doubt whether the defendants intended to kill the primary target by killing everyone in the kill zone, it had to return not guilty verdicts. (Ibid.) The court found that this instruction was inadequate because it did not define "kill zone" beyond mere reference to it as a "particular zone of harm." (Id. at p. 613.) Nor was the jury told to consider evidence regarding the circumstances of the attack when determining whether the defendants intended to kill the primary target by killing everyone in the kill zone. (Ibid.)
The court cautioned that in cases where the kill zone theory was applicable, CALCRIM No. 600 should be revised "to better describe the contours and limits" of the theory. (Canizales, supra, 7 Cal.5th at p. 609.)
Evans's jury was not instructed on the kill zone via CALCRIM No. 600 but instead via CALJIC No. 8.66.1. CALJIC No. 8.66.1 is no less defective. It instructed: "A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim's vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a zone of risk is an issue to be decided by you." (Italics added.)
This instruction suffers from fatal defects similar to the defective instruction in Canizales. CALJIC No. 8.66.1 similarly did not define "kill zone" and instead just referred to it as a "particular zone of risk." This vague definition would not have helped the jury determine if the zone of risk was, for example, the driveway or the driveway and the entire backyard. Rayford similarly observed that by "defining the kill zone as a 'zone of risk,' " CALJIC No. 8.66.1 erroneously allows the jury to convict the defendants "if the evidence showed they intended to subject individuals in the 'zone of risk' to a risk of harm, regardless of whether they intended to kill the individuals in order to kill the primary target." (Rayford, supra, 50 Cal.App.5th at p. 782.) This improperly suggests that a defendant can create a kill zone by subjecting individuals other than the primary target to a risk of injury. (Id. at p. 783; accord, People v. McCloud (2012) 211 Cal.App.4th 788, 802, fn. 7 [CALJIC No. 8.66.1 should be revised].)
CALJIC No. 8.66.1 also did not tell the jury that the circumstances of the attack are crucial to determining concurrent intent to kill everyone in the kill zone. Perhaps it did a better job by at least alluding to this element than did the instruction in Canizales, because CALJIC No. 8.66.1 stated that intent is concurrent when the nature and scope of the attack makes it reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim's vicinity. This still fell short of what Canizales requires because it tells the jury it can reasonably infer from the nature and scope of the attack that Evans intended to kill everyone in the zone of fatal harm. However, the inference must be the only reasonable inference to be drawn from the circumstances of the attack. (Canizales, supra, 7 Cal.5th at p. 597.) CALJIC No. 8.66.1 thus waters down Canizales's requirement that the inference of intent to kill all in the target's vicinity must be the only reasonable inference that can be drawn from the evidence and potentially gives the jury an improper shortcut to reaching an attempted murder verdict. (People v. Thompkins (2020) 50 Cal.App.5th 365, 399.)
Nor did the prosecutor's argument cure the error in the instruction. The prosecutor argued in closing that there was evidence Evans intended to kill Renteria; but there was another way to find him guilty of attempted murder, "what we call the zone of harm or the kill zone." If the jury believed that Evans intended to kill Connine, "and by committing this killing, was willing to kill anyone who stood in his way, that anyone who was within that zone, was in that zone of harm, within that kill zone, is also a victim of attempted murder by the defendant. [¶] So the zone of harm instruction . . . says that 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. And that's what this will be as well." So, there were two ways the jury could find Evans guilty of attempted murder. First, if it believed Evans intended to kill Renteria or, second, if the jury believed that Evans intended to kill only Connine, but Renteria was in "this kill zone, was in this danger zone, was in this zone of harm." In so arguing, the prosecutor did not adequately explain "zone of harm" or "kill zone" or explain the relevance of the circumstances of the attack. Therefore, even if we agreed that the prosecutor's argument did not compound the instructional error as happened in Canizales and Rayford, neither did it cure the error.
The People, however, respond that the jury must have found that Evans specifically intended to kill Renteria because the totality of the instructions required that finding. The People thus point out that the jury was also instructed with CALJIC Nos. 3.31 and 8.66. CALJIC No. 3.31 instructed that the crimes charged required a specific intent in the perpetrator's mind, and other instructions defined the specific intent required. CALJIC No. 8.66, the attempted murder instruction, instructed that attempted murder requires a direct but ineffectual act towards killing a person, and a specific intent to kill unlawfully another person. The People argue that these two instructions qualified CALJIC No. 8.66.1 or they must be read into it. Thus, the jury would have understood it had to find a specific intent to kill Renteria even if it relied on the kill zone theory. In essence, the jury had just one theory of attempted murder before it.
However, that is not what the prosecutor argued. As we have said, the prosecutor emphasized that there were two ways to find Evans guilty of attempting to murder Renteria, the first being that Evans specifically intended to kill him. The second was the kill zone theory. The prosecutor said that if the jury believed Evans intended to kill Connine and Renteria, "then the murder is true and the attempted murder is true." If the jury believed that the defendant only intended to kill Connine but that "Renteria was in this kill zone, was in this danger zone, was in this zone of harm, then the defendant is also guilty both of the murder of Russell Connine and of the attempted murder of Carlos Renteria. So there are two ways you can find the defendant guilty of that attempted murder count as well." (Italics added.) Therefore, while the People now argue that the jury would have interpreted the kill zone theory to incorporate a specific intent to kill Renteria as opposed to a concurrent intent to create a kill zone around Connine to ensure his death, this is not what the prosecutor argued, nor is it what CALJIC No. 8.66.1 said.
There is a bigger problem with the People's argument regarding Evans's alleged specific intent to kill Renteria: there is insufficient evidence of intent to kill. " 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
Although not dispositive, it is notable that jury found the premeditation allegation not true as to the attempted murder count.
We have already said that attempted murder requires proof of a specific intent to kill and a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee, supra, 31 Cal.4th at p. 623.) Thus, there must be evidence Evans intended to kill Renteria and not someone else. (People v. Smith (2005) 37 Cal.4th 733, 739-740.) The required mental state may be inferred from the defendant's acts and circumstances of the crime. (Id. at p. 741.)
The circumstances surrounding the shooting of Renteria are opaque. There was no evidence Evans knew Renteria. There was no evidence Renteria had any interaction with Evans before the shooting. There was no evidence of what type of bullet or bullets Renteria was shot with. And no witness testified as to Renteria's exact location when the shooting broke out.
The trial court commented during a hearing with counsel on the paucity of evidence surrounding Renteria, saying that nobody really knew the circumstances under which he was shot.
Nor is evidence that Evans was a Toonerville gang member at a party in rival Avenues territory, and that Renteria was an Avenues gang member, sufficient to supply intent to kill. Although intent " 'is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense' " (People v. Rios (2013) 222 Cal.App.4th 542, 567-568) and a gang expert can supply evidence a jury may rely on to reach a finding on a gang allegation (People v. Vang (2011) 52 Cal.4th 1038, 1048), a gang expert's opinion still "must be rooted in facts shown by the evidence" (People v. Gardeley (1996) 14 Cal.4th 605, 618, disapproved on other grounds by People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13). Here, a gang expert did opine that a Toonerville gang member who went into a rival's territory armed would be on a mission to assault another gang member. However, other than Evans's and the victims' status as gang members, no evidence showed that Evans targeted Renteria. There was no evidence that the two men knew each other. There was no evidence Evans knew that Renteria was an Avenues gang member. There was no evidence that Renteria knew that Evans was a Toonerville gang member. There was no evidence anyone at the party, much less the involved parties, wore anything signifying gang allegiances or otherwise indicated their membership in the gangs. (See, e.g., People v. Ochoa (2009) 179 Cal.App.4th 650, 662 [insufficient evidence crime was gang-related where defendant did not call out gang name, display gang signs, wear gang clothing, engage in gang graffiti or brag about crime].) There is simply insufficient evidence that Evans intended to kill Renteria because Renteria was a rival gang member or for some other reason.
The absence of evidence that Evans specifically intended to kill Renteria suggests that the jury arrived at its attempted murder verdict via the invalid kill zone theory. This case thus exposes a problem Canizales hinted at when it restricted and cautioned against prolific use of the kill zone theory. Because the kill zone theory relies so heavily on circumstantial evidence, there is a danger that a weak case for specific intent to kill will be bootstrapped onto a kill zone theory. That is what happened here. There was insufficient evidence of a specific intent to kill Renteria, and there was, at most, evidence of a conscious disregard of the risk of serious injury or death for those around the primary target. Reversal is therefore required.
DISPOSITION
Patrick Evans's petition for writ of habeas corpus is granted, and his conviction of count 2, attempted murder, is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.