Opinion
E081823
03-22-2024
In re EMERY MOORE, On Habeas Corpus
Petition granted. Alex Coolman, under appointment by the Court of Appeal, for Petitioner. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Alana Cohen Butler, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for habeas corpus. Super.Ct. No. FSB054827 Ronald M. Christianson, Judge.
Petition granted. Alex Coolman, under appointment by the Court of Appeal, for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Alana Cohen Butler, Deputy Attorneys General, for Respondent.
OPINION
MENETREZ J.
In 2006, a jury found Emery Moore guilty of the attempted murders of Timothy G. and Myrance W. At trial, the prosecution relied exclusively on a kill zone theory to establish Moore's guilt for the attempted murder of Myrance, arguing that Timothy was Moore's primary target and that Moore shot Myrance-who was positioned between Moore and Timothy-"in order to get at Timothy."
In this habeas proceeding, Moore seeks reversal of his conviction for the attempted murder of Myrance on the ground that his jury was given a kill zone instruction that is erroneous under People v. Canizales (2019) 7 Cal.5th 591 (Canizales). He contends that the instruction incorrectly suggested that a specific intent to kill Myrance was not necessary to establish his guilt.
We agree with Moore. We conclude that the kill zone instruction given at his trial was erroneous because, among other reasons, it was reasonably likely to mislead the jury to believe that Moore need only have intended to harm Myrance as a means of killing Timothy. The kill zone theory is not an exception to the specific intent to kill requirement of attempted murder: The theory does not apply if "the defendant subjected people near the primary target to lethal risk, or . . . acted with conscious disregard of the risk of serious injury or death for people near the primary target." (In re Sambrano (2022) 79 Cal.App.5th 724, 727 (Sambrano), disapproved on another ground by People v. Mumin (2023) 15 Cal.5th 176, 209, fn. 11 (Mumin).)
We further conclude that the error was not harmless beyond a reasonable doubt, because (1) the record does not contain overwhelming evidence to support a finding that Moore intended to kill Myrance, and (2) the prosecutor exacerbated the instructional error by conceding that the evidence did not show that Moore intended to kill Myrance and by arguing that an intent to harm Myrance was sufficient to establish Moore's guilt under the kill zone theory. We therefore grant the petition.
BACKGROUND
I. The Shooting
Early in the morning on May 10, 2003, Timothy was parked in the alley behind his apartment building, sitting in the passenger seat of his car and listening to music, when a car driven by Moore pulled up next to him on his right. Moore's car was facing the opposite direction of Timothy's, so the passenger sides of both vehicles were next to each other. Timothy's friend Myrance was in the front passenger seat of Moore's car, and Otto K. was sitting in the back.
Myrance stepped out of Moore's car to talk to Timothy through Timothy's open passenger side window. As the two men talked, Myrance was positioned between Moore and Timothy, with his back to Moore and his elbows resting on the ledge of Timothy's window. Myrance asked if Timothy had "trouble" with anybody and said that "somebody" might be about "to go off," at which point Moore fired five to seven gunshots in their direction. Two of the bullets hit Myrance, who was closest to Moore. After Myrance fell to the ground, Moore continued to shoot, hitting Timothy three times as Timothy tried to escape by pushing open his passenger door with his foot. Before Timothy could get out of his car, Moore drove off, leaving Myrance lying on the ground.
Both men survived their injuries, but Myrance, who had been shot in his spine and his right arm, was paralyzed from the waist down. Timothy sustained bullet wounds in his torso, left thigh, and left heel.
II. Moore's Trial
At trial, the prosecution presented evidence that Timothy had been Moore's primary target. Timothy testified that although he and Moore had never met, they knew of each other through Moore's girlfriend, a woman who went by the nickname "QuayQuay." Timothy had known Quay-Quay since elementary school and had hung out with her and her family about two weeks before the shooting. He told the jury that he thought Myrance was trying to warn him of danger by asking him if he had trouble with anyone just before Moore started shooting. Timothy's brother, Curtis, lived in the same apartment complex as Timothy and came to his aid after the shooting. Although Timothy claimed that he and Quay-Quay were just friends, Curtis testified that Quay-Quay and Timothy had been "fooling around" before the incident.
Myrance testified that he previously did not know Moore and that he first met him on the night of the shooting. Myrance said that he had spent the evening hanging out and drinking with Timothy and others, and at some point he met Moore. Although Myrance remembered being in the passenger seat of Moore's car, he could not recall why he had gotten into the car in the first place or where they had been driving. The last thing he could recall from that evening was getting out of Moore's car to talk to his friend and then being shot by Moore.
Moore's other passenger, Otto K., was Quay-Quay's uncle. He testified that Moore was like family to him, and he denied seeing Moore fire a gun that evening. However, he acknowledged that he told police shortly after the incident that Moore and Timothy had been "arguing or something about my niece Quay-Quay."
Moore testified in his own defense. He said that Myrance was about to rob Timothy when another man walked up, fired multiple shots at Myrance and Timothy, and fled. (People v. Moore (Mar. 16, 2009, E042884) [nonpub. opn.].)
The trial court instructed the jury that to convict Moore of the attempted murders of Timothy and Myrance it must find either that he specifically intended to kill each of the victims or that he created a fatal zone of harm around Timothy and had a "concurrent" intent to kill everyone within that zone. The kill zone instruction-a modified version of former CALCRIM No. 600-stated in relevant part that "intent is concurrent when the nature and scope of the attack, while directed at the primary victim, are such that you can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in the victim's vicinity." The instruction also stated: "If you have a reasonable doubt whether the defendant intended to kill Myrance W[.] or intended to kill Timothy G[.] by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Myrance W[.]"
In closing argument, the prosecutor relied exclusively on the kill zone theory to establish Moore's guilt for the attempted murder of Myrance. The prosecutor argued: "The evidence has not really shown that [Moore's] intention was to kill Myrance [W.] His intent was to kill Timothy [G.] But he was also aware that his actions were intending to harm Myrance [W.] in order to get to Timothy [G.] That's what the kill zone talks about."
The jury found Moore guilty of the attempted murders of Timothy and Myrance (counts 1 and 3, respectively), with enhancements for personally discharging a firearm causing great bodily injury. (Pen. Code, §§ 187, 664, 12022.53, subd. (d); unlabeled statutory citations refer to this code.) The jury also found Moore guilty of two counts of assault with a firearm. (§ 245, subd. (a).)
Moore appealed, and in March 2009, we issued an opinion affirming the judgment. (People v. Moore, supra, E042884) [nonpub. opn.].) In 2023, Moore was appointed counsel to appeal the denial of his resentencing petition under section 1172.6, and counsel filed this habeas petition simultaneously with the opening brief in that appeal.
DISCUSSION
I. The Petition Is Not Procedurally Barred
In his petition, Moore contends that the kill zone instruction given at his trial was erroneous under Canizales in two regards: (1) by referring to an intent to kill "anyone" (rather than "everyone") within the kill zone and (2) by referring to an intent to "harm" (rather than "kill") those within the kill zone as a means of killing the primary target. The People argue that Moore's petition is procedurally barred because he could have raised those arguments on direct appeal. We disagree.
"The general rule is that a party may not raise in a habeas corpus petition an issue which . . . could have been, but was not, raised on direct appeal." (In re Saldana (1997) 57 Cal.App.4th 620, 627, citing In re Dixon (1953) 41 Cal.2d 756.) However, an exception to that general rule applies when there has been a retroactive "'change in the law affecting the petitioner.'" (In re Martinez (2017) 3 Cal.5th 1216, 1222.)
The kill zone theory was first approved by our Supreme Court in People v. Bland (2002) 28 Cal.4th 313. "Bland . . . recognize[d] that 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." (People v. Smith (2005) 37 Cal.4th 733, 745-746 (Smith).) In 2019, our Supreme Court revisited the kill zone theory in Canizales and "reaffirmed" the theory but further "articulated its contours and limitations." (Mumin, supra, 15 Cal.5th at p. 192.) Canizales held that the kill zone theory applies only if the record contains sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that the "defendant intended to kill everyone in the zone of fatal harm." (Canizales, supra, 7 Cal.5th at p. 608.) Canizales also held that the kill zone instruction at issue there-a modified version of former CALCRIM No. 600 that is nearly identical to the instruction at issue here-"was flawed because it did not adequately define the term 'kill zone' and failed to direct the jury to consider the circumstances of the attack in determining whether the defendant's attempt to kill everyone around the primary target was undertaken as a mean of killing the primary target." (Sambrano, supra, 79 Cal.App.5th at p. 732.)
Our court and others have concluded that Canizales announced a substantive change in the law on the kill zone theory that applies retroactively in habeas proceedings concerning judgments that were final when Canizales was issued. (Sambrano, supra, 79 Cal.App.5th at pp. 731-732; In re Rayford (2020) 50 Cal.App.5th 754, 770-778, disapproved of on another ground by Mumin, supra, 15 Cal.5th at p. 203; In re Lisea (2022) 73 Cal.App.5th 1041, 1053 (Lisea).) Moore therefore could not have raised his arguments on direct appeal in 2008 because Canizales had not yet held that the kill zone requires (among other things) that the defendant intended to "kill everyone" (not "harm anyone") in the zone of fatal harm around the primary victim (Canizales, supra, 7 Cal.5th at p. 608). (See Lisea, supra, 73 Cal.App.5th at p. 1053 [petitioner's challenge to the kill zone instruction's use of the word "harm" instead of "kill" was based on Canizales].)
We are unpersuaded by the People's contention that Moore's arguments are based not on Canizales but rather on a much earlier California Supreme Court decision, People v. Stone (2009) 46 Cal.4th 131 (Stone). Stone, which was decided one month before we decided Moore's direct appeal, was not a kill zone case, and it did not announce any holdings related to the kill zone theory of concurrent intent. (See Stone, supra, 46 Cal.4th at p. 138 ["The kill zone theory simply does not fit the charge or the facts of this case"].) As our Supreme Court explained in Canizales, Stone "ma[d]e clear there are evidentiary bases, other than the kill zone theory, on which a fact finder can infer an intent to kill for purposes of attempted murder liability." (Canizales, supra, 7 Cal.5th at p. 608; see also Stone, supra, 46 Cal.4th at p. 140 [holding that "a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind"].) Stone did state in a footnote that former CALCRIM No. 600 "would be better" if its references to "anyone" were changed to "everyone" and its references to "harm" were changed to "kill." (Stone, supra, 46 Cal.4th at p. 138, fn. 3.) But that statement amounts to a suggestion for improving the instruction, not a conclusion that the instruction was flawed. Such a conclusion did not come until over a decade after we decided Moore's direct appeal, when our Supreme Court decided Canizales. (See Canizales, supra, 7 Cal.5th at p. 609 [concluding that former CALCRIM No. 600 "does not adequately explain the kill zone theory"].)
Because Canizales announced a narrower definition of the kill zone theory that applies retroactively to Moore's case, we conclude that Moore could not have raised his claims on direct appeal and that his petition is not procedurally barred.
II. The Kill Zone Instruction Was Erroneous
We independently review claims of instructional error. (People v. Cole (2004) 33 Cal.4th 1158, 1206.) When the alleged error is that the instructions misstate the law, we "examine the instructions to determine whether th[e] law was correctly conveyed to the jury" or "whether there is a 'reasonable likelihood' that the jury understood the charge as the defendant asserts." (People v. Kelly (1992) 1 Cal.4th 495, 525.)
The kill zone instruction given at Moore's trial stated:
"A person may intend to kill a specific victim 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 Myrance W[.], the People must prove that the defendant not only intended to kill Timothy G[.], but also intended to kill anyone within the kill zone.
"If you conclude that the defendant intentionally created a 'kill zone' to ensure the death of his primary victim, you may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. The intent is concurrent when the nature and scope of the attack, while directed at the primary victim, are such that you can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in the victim's vicinity.
"If you have a reasonable doubt whether the defendant intended to kill Myrance W[.] or intended to kill Timothy G[.] by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Myrance W[.]"
Moore argues that the instruction was erroneous because it was reasonably likely to mislead the jury to conclude that an intent to harm (rather than kill) anyone (rather than everyone) inside the kill zone as a means of killing Timothy, his primary target, was sufficient to convict him of the attempted murder of Myrance. We agree that the instruction was erroneous.
The elements of attempted murder are "specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) "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.) Consistent with those requirements, the kill zone theory "yields a way in which a defendant can be guilty of the attempted murder of victims who were not the defendant's 'primary target.'" (People v. McCloud (2012) 211 Cal.App.4th 788, 797.)
In Canizales, the court reexamined the kill zone theory with the express goal of "more clearly defining" the theory. (Canizales, supra, 7 Cal.5th at p. 606.) Canizales held that the kill zone theory applies only if (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 located within that zone of harm." (Id. at p. 607.) "Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm." (Ibid.)
Canizales enumerated the following circumstances that a jury "should consider" when assessing the defendant's "intent to create a zone of fatal harm and the scope of any such zone": (1) "the type of weapon [the defendant] used," (2) "the number of shots fired (where a firearm is used)," (3) "the distance between the defendant and the alleged victims," (4) "the proximity of the alleged victims to the primary target," (5) whether the attack location was open or instead had a "limited means of escape," and (6) whether the defendant succeeded in hitting the primary target. (Canizales, 7 Cal.5th at pp. 607, 610611.)
The kill zone instruction in this case is erroneous under Canizales for several reasons. The instruction suffers from the same defects identified in Canizales. "Beyond its reference to a 'particular zone of harm,'" the instruction "provide[s] no further definition of the term 'kill zone.'" (Canizales, supra, 7 Cal.5th at p. 613.) The instruction also did not "direct the jury to consider evidence regarding the circumstances of [Moore's] attack" when determining whether Moore intended to kill Timothy by creating a kill zone. (Ibid.)
In addition, the instruction suffers from the two flaws Moore identifies in his petition. First, by stating that Moore could be guilty of the attempted murder of Myrance if he intended to kill "anyone" within the kill zone, the instruction failed to require that the defendant intend to kill "everyone present" in the zone as a means of ensuring the primary target's death. (Canizales, supra, 7 Cal.5th, at p. 607; see also Lisea, supra, 73 Cal.App.5th at p. 1056 [concluding the kill zone instruction's use of "anyone" in place of "everyone" was erroneous under Canizales].)
Second, by telling the jury that the kill zone theory applies if Moore "intended to kill Timothy G[.] by harming everyone in the kill zone," the instruction eliminated the intent to kill requirement and created an impermissible short cut for establishing Moore's guilt as to Myrance. (See Lisea, supra, 73 Cal.App.5th at p. 1055 [concluding the kill zone instruction's use of "harm" in place of "kill" was erroneous under Canizales because "[h]arm to anyone inside the kill zone is not an intent to kill"].) However, the kill zone is not a short cut for proving attempted murder-it requires proof of a specific intent to kill each victim. (Canizales, supra, 7 Cal.5th at p. 607.) As Canizales made clear, it is not enough to show that the defendant intended merely to harm those around the primary target or "acted with only conscious disregard of the risk of serious injury or death" for those individuals. (Canizales, supra, 7 Cal.5th at p. 607; Sambrano, supra, 79 Cal.App.5th at p. 732 .) The instruction given at Moore's trial erred by suggesting that an intent to harm could substitute for an intent to kill.
The People argue that the instruction's use of the terms "harm" and "anyone" did not misstate the law on the kill zone, but we find their arguments unpersuasive. First, they contend that the use of those terms is proper under the holdings of Stone and People v. Campos (2007) 156 Cal.App.4th 1228 (Campos). Neither case helps the People. As discussed, Stone did not reach any conclusions regarding the validity of former CALCRIM No. 600. And although Campos did hold that the use of the word "anyone" in the instruction at issue there was not erroneous, that decision predated Canizales. We agree with Lisea that the instruction's use of the word "anyone" was erroneous under Canizales. (Lisea, supra, 73 Cal.App.5th at p. 1056.)
Second, the People argue that because the first sentence of the instruction equates the "kill zone" with a "zone of harm," the instruction "signaled" to the jury that the terms "harm" and "kill" should be used "interchangeably." Assuming for the sake of argument that the instruction does signal that those two words should be treated as interchangeable, the argument still fails because the words "harm" and "kill" have very different meanings and the instruction does not tell the jury which one should be controlling. In this way, the People's argument makes the instruction look even more problematic-the jurors could have understood all of the references to "kill" to mean "harm," instead of the reverse.
Third, the People contend that the instruction eliminated any confusion caused by the references to "harm" by "repeatedly inform[ing] the jury that it must find the intent to kill." We disagree because the instruction refers to the intent to kill and the intent to harm an equal number of times-twice. Moreover, the prosecutor reinforced the suggestion that an intent to harm Myrance was sufficient to establish Moore's guilt by conceding that "the evidence has not really shown that [Moore's] intention was to kill Myrance" and by arguing that Moore's "actions were intending to harm Myrance . . . in order to get at Timothy." Rather than repeatedly informing the jury of the correct intent requirement for attempted murder, both the instruction and the prosecutor's closing arguments misstated the law and invited the jurors to convict Moore of the attempted murder of Myrance so long as they found that he intended to harm Myrance.
For all of these reasons, we conclude that the kill zone instruction given in this case was erroneous.
III. The Error Was Prejudicial
Because the trial court instructed the jury on a legally invalid kill zone theory- i.e., one that did not require an intent to kill the victim who was not the primary target- we must reverse unless we conclude the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. (Lisea, supra, 73 Cal.App.5th at p. 1053, fn. 3; People v. Aledamat (2019) 8 Cal.5th 1, 7-8.) Under that standard, we must consider the entire record and "all relevant circumstances" (People v. Aledamat, at p. 3) to determine "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).
On this record, we cannot say beyond a reasonable doubt that the jury would have reached the same verdict on the attempted murder of Myrance absent the instructional error. As the prosecutor conceded during closing argument, the evidence regarding Moore's motive to attack both men was scant. The record contains evidence that Moore had a motive to kill Timothy because Timothy was close with (and possibly "fooling around" with) Moore's girlfriend. However, the record contains no evidence that Moore had any reason or motive to kill Myrance aside from the fact that Myrance was standing between Moore and Timothy.
Without more evidence about Moore's mindset regarding Myrance, the only evidence that supports an inference that Moore intended to kill Myrance is his act of shooting at Myrance at close range. And while that act is certainly sufficient to support such an inference, it does not-contrary to the People's contention-compel such an inference. (See Smith, supra, 37 Cal.4th at p. 742 ["the very act of firing a weapon '"in a manner that could have inflicted a mortal wound had the bullet been on target'" is sufficient to support an inference of intent to kill"].) For example, the jury could also reasonably conclude from the record that Moore had not intended to hit Myrance at all but simply had poor aim. The jury could also reasonably conclude that Moore was indifferent to the risk that he might kill or seriously injure Myrance by shooting at Timothy while Myrance stood in his way. Given the multiple reasonable inferences that the jury could have drawn about Moore's intent to kill, it is not clear beyond a reasonable doubt that the jurors would have convicted him of attempted murder without the erroneous kill zone instruction that allowed them to find him guilty upon an intent to "harm[] everyone in [Timothy's] vicinity."
Our finding of prejudice is further supported by the prosecutor's closing argument, which relied exclusively on the kill zone theory for the attempted murder of Myrance. (Lisea, supra, 73 Cal.App.5th at p. 1056.) When describing the theory, the prosecutor gave the example of a defendant who attacks a group of people that includes his primary target "with automatic weapon fire enough to kill everyone in the group." The prosecutor told the jury, "[t]hat's pretty much what our case is," because "by shooting five times, [Moore] was ensuring that he was going to get [Timothy] whether he had to kill Myrance [W.] or not." (Italics added.) The prosecutor's argument was erroneous because it did not require a specific intent to kill everyone in the zone as a means of killing the primary target. Instead, it suggested that a mental state like implied malice or reckless indifference to the fate of those near the primary target was sufficient to establish guilt.
The prosecutor continued to apply that incorrect description of the kill zone theory to the trial evidence by arguing that Timothy was Moore's "intended victim" and by conceding that the "evidence has not really shown that [Moore's] intention was to kill Myrance." The prosecutor told the jury that the fact that Moore continued to shoot at Timothy after Myrance fell down is "how you know that [Timothy] was his intended victim." (Italics added.) The prosecutor added: "And how do we know that [Moore] was intending to kill Timothy [G.]? Well, everybody has testified that Myrance was hanging out with the defendant earlier. If he wanted to shoot Myrance, he would have shot him a long time ago. That was not his main victim. His main victim was Timothy." (Italics added.)
The prosecutor also argued that Moore created a kill zone when he shot at the two men because although his "intent was to kill Timothy," he was "aware that his actions were intending to harm Myrance [W.] in order to get at Timothy." According to the prosecutor, that was "what the kill zone talks about." The prosecutor then directed the jury's attention to the last paragraph of the kill zone instruction-"if you have a reasonable doubt whether [Moore] had intention to kill Myrance [W.] or intended to kill Timothy [G.] by harming everyone else in the zone"-and he told the jury, "[t]hat's the [part] I wanted you to focus on. You know, it's obvious that he intended to kill Timothy [G.] by harming everyone in the zone; okay? Because by everyone's account, they were three to six feet apart." (Italics added.)
Taken together, the prosecutor's (1) exclusive reliance on the kill zone theory, (2) concession that the evidence did not show that Moore intended to kill Myrance, (3) references to Timothy as Moore's "intended victim," and (4) contention that Moore could be convicted of the attempted murder of Myrance if he merely intended to harm or was indifferent to harming Myrance all served to reinforce the instruction's erroneous suggestion that a specific intent to kill Myrance was not necessary to convict Moore of the attempted murder of Myrance. Given "the potential for confusion created by the attempted murder instruction in combination with the prosecutor's argument" and the lack of overwhelming evidence that Moore specifically intended to kill Myrance (Canizales, supra, 7 Cal.5th at p. 617), we cannot conclude beyond a reasonable doubt that a reasonable jury would have returned the same verdict on the two attempted murder counts absent the instructional error. (See Lisea, supra, 73 Cal.App.5th at p. 1056 [the prosecutor's closing argument "compounded" the error in the kill zone instruction and "rendered [the error] prejudicial"].) Because the error was instructional, and because the record contains sufficient evidence to support the attempted murder conviction (Smith, supra, 37 Cal.4th at p. 742), the People may decide on remand whether to retry Moore.
DISPOSITION
The petition for writ of habeas corpus is granted. Moore's conviction for the attempted murder of Myrance (count 3) is vacated. We remand the matter to the trial court with directions to allow the People to choose whether to retry Moore on that count.
We concur: RAMIREZ P. J., McKINSTER J.