Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Nos. GA068193, GA067249, GA067444, Teri Schwartz, Judge.
Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Appellant Amir Dawood Faquir was charged with attempted murder and assault with a semiautomatic firearm. In connection with the attempted murder charges, the jury received an instruction on the “kill zone” theory of concurrent intent. Appellant contends that this instruction was improper. We find no error, and affirm.
RELEVANT PROCEDURAL BACKGROUND
On November 2, 2007, an amended information was filed, charging appellant with the attempted murder of Trevell Thompson and Bryant Jackson (Pen. Code, §§ 187, subd. (a), 664), and assault with a semiautomatic firearm on Trevell Thompson, Kijuana Guevara, and Jacari Guevara (Pen. Code, § 245, subd. (b)). Accompanying the charges were gang allegations (§ 186.22, subd. (b)) and firearm use allegations (12022.53, subds. (b) - (e)). Appellant pleaded not guilty and denied the special allegations.
All further statutory citations are to the Penal Code.
In addition, the information contained allegations that were not submitted to the jury. In connection with the assault charge involving Thompson, the information alleged that appellant had personally inflicted great bodily injury. At the prosecutor’s request, this allegation was struck prior to trial. The information also alleged that appellant had personally used a firearm in connection with the assault charge involving Jacari Guevara. This allegation was never submitted to the jury.
On November 16, 2009, the jury found appellant guilty as charged on the assault counts, and found the gang and firearm use allegations accompanying them to be true. The jury was unable to reach a verdict on the attempted murder counts, and the trial court declared a mistrial with respect to them. On January 5, 2010, the trial court sentenced appellant to a total term of 11 years in prison.
FACTS
A. Prosecution Evidence
Pasadena Police Detective Keith Gomez, a gang expert, provided testimony in support of the gang allegations accompanying the charges against appellant. According to Gomez, the Squiggly Lane Gangsters, a gang that originated in Pasadena and Altadena, has long been at war with the Pasadena Denver Lane Blood gang, which contains the Project Gangsters as a “set” or “clique.” At the time of the events in question, appellant was a member of the Project Gangsters and Pasadena Denver Lane Bloods. Jarmon Sanford was a fellow gang member. Bryant Jackson and Trevell Thompson belonged to the Squiggly Lane Gangsters.
The key events underlying the charges against appellant occurred on December 11, 2006. At approximately 2:30 p.m., Jackson and Thompson stood in front of Thompson’s apartment, talking to each other. Nearby were Thompson’s siblings, nine-year-old Kijuana Guevara and three-year-old Jacari Guevara. As a car drove past, someone in it fired gunshots, wounding Thompson in the leg.
Thompson’s three-year-old brother is sometimes identified as “Jacory” in the record. We use the name found in the amended information.
At trial, Thompson testified that the car contained two persons, but maintained that he did not see them well enough to recognize them. Evidence was presented that Thompson had previously told Detective Gomez, who investigated the shooting, that appellant was the car’s driver and that Sanford sat in the front passenger seat.
Jackson testified that the car in question belonged to appellant. According to Jackson, someone named “Anthony” or “Antwon” drove the car while Sanford, who occupied the front passenger seat, fired the gun. Evidence was presented that prior to the trial, Jackson had told Detective Gomez that appellant was the car’s driver.
Kijuana Guevara testified that she could not recall anything regarding the car. Pasadena Police Department Officer Victor Cass testified that shortly after the shooting, Kijuana had said that the car contained two 18- or 19-year old African-Americans wearing red baseball caps.
Investigating officers found two.380 caliber bullet casings at the site of the shooting. The bullets had been fired from a semi-automatic firearm. After the shooting, Jasmine Holden and Kayla Hunter told Detective Gomez that they knew who had participated in it. On December 21, 2006, Gomez arranged for Holden and Hunter to discuss the shooting with appellant by telephone. During the phone conversation, appellant stated that prior to the shooting, Thompson had repeatedly threatened to kill him. According to appellant, he had “lit their ass up” because “there was no other choice.” He said: “I seen the homey. I had mine; he had his.” He also remarked that he and Jackson had long been adversaries, stating, “I can’t even tell you how many times we have shot at each other.” Appellant further indicated that the gun used in the shooting was no longer in his house. A recording of the conversation was played for the jury.
After the phone conversation, Detective Gomez located appellant’s car near his house. In appellant’s bedroom, investigating officers found.380 caliber bullets and other ammunition, a semiautomatic handgun magazine, and a red baseball cap with a “P” on it. During an interview by Gomez, appellant stated that on the date of the shooting, he allowed Antwon Smith to drive his car while he rode as a passenger. They picked up Sanford, who proposed a shooting. Sanford switched seats with appellant, who lay down on the car’s back seat. As the car approached Jackson, Thompson, and Thompson’s siblings, appellant saw Sanford fire two gunshots.
B. Defense Evidence
Appellant testified as follows: On December 11, 2006, he was at home for the Christmas break from his college in Arizona. Because a hold had been placed on appellant’s driver’s license, he permitted Antwon Smith to drive his car. In the morning, appellant and Smith helped Tara Clegg, a friend of appellant’s mother, to move to a new residence. Later, appellant smoked some marijuana and dozed on the rear seat of the car. After Smith received a phone call, he picked up Sanford. Shortly afterward, gunshots startled appellant, who looked up from the rear seat and saw Sanford firing a gun out of the car’s window. As the car was travelling slowly, appellant hopped out of the car, ran away, and hid for 30 to 35 minutes. While hiding, he received a phone call from Jackson, whom he knew, and tried to persuade him that he had not participated in the shooting.
When appellant returned home, he found his car in front of his house. Sanford phoned appellant and said, “You better not say shit.” Appellant went to the hospital where Thompson had been taken, discovered Jackson, and told him what had happened. According to appellant, Jackson believed him. When Jasmine Holden and Kayla Hunter phoned him, he misstated his role in the shooting to impress Kayla, whom he liked. He denied being a member of the Project Gangsters and denied owning a gun. During cross-examination, he stated that in December 2004, he witnessed a shooting, but denied that he was nearly wounded.
Tara Clegg testified that on December 11, 2006, appellant and Smith helped her move until noon or 1:00 p.m. Aaron Fowler, Thompson’s neighbor, testified that she heard the shooting, saw the car in question, and made a 911 call. According to Fowler, appellant was neither the driver nor the passenger. Barbara Faquir, appellant’s mother, testified that on December 11, 2006, Smith returned appellant’s car to her house without appellant in it. She became angry at appellant, whom she forbade to drive the car. Ms. Faquir also testified that the ammunition found in appellant’s room belonged to his father.
In addition to these witnesses, Jackson denied that he and appellant had ever fired guns at each other. Gregory Brown, a gang expert, opined that appellant was not a gang member.
C. Rebuttal
Detective Gomez testified that when police officers entered appellant’s room to search it, he was asleep on the bed. The ammunition, gun magazine, and baseball cap were found in the bedroom. Gomez also testified there was no record of a 911 call from Fowler.
Pasadena Police Department Officer Kevin Okamoto testified that in December 2004, he investigated a shooting involving appellant. Appellant’s face showed stippling, which indicated that a gun had been discharged near it. According to Okamoto, appellant initially identified two participants in the shooting, but later declined to make an identification at trial.
DISCUSSION
Appellant’s sole contention is that the trial court erred in instructing the jury regarding the “kill zone” theory of concurrent intent in connection with the attempted murder charges. He argues that even though the jury was expressly informed that the theory applied only to the attempted murder charges, the “kill zone” instruction misled the jury regarding the intent required for assault with a semiautomatic firearm. We discern no instructional error.
At the threshold, respondent argues that appellant forfeited this contention by failing to raise it before the trial court. However, a defendant need not assert an objection to preserve a contention of instructional error when the error affects the defendant’s “substantial rights.” (§ 1259.) In this regard, “[t]he cases equate ‘substantial rights’ with reversible error” under the test stated in People v. Watson (1956) 46 Cal.2d 818. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.) Here, appellant contends that the purported instructional error implicates his substantial rights. We address his contention on the merits to determine whether there was an impairment of his substantial rights. (See People v.Anderson (2007) 152 Cal.App.4th 919, 927.)
A. Standard of Review
Generally, the adequacy of any instruction given must be judged in the context of all the instructions. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 663, pp. 953-954.) Thus, an instruction is not assessed in isolation, but must be viewed in the context of the overall charge. (People v. Reliford (2003) 29 Cal.4th 1007, 1013.) When an instruction is potentially ambiguous or misleading, the instruction is not error unless there is a reasonable likelihood that the jurors misunderstood or misapplied the pertinent instruction. (Ibid.; People v. Avena (1996) 13 Cal.4th 394, 416-417.)
B. Governing Principles
We begin by discussing the types of intent required for attempted murder and assault with a semiautomatic firearm. Here, the prosecution’s principal theory at trial was that appellant was liable for the crimes charged against him as an aider and abettor, as the evidence showed that Sanford was the shooter. Accordingly, we examine the relevant forms of intent associated with the charged crimes, as well as the manner in which they can be established under the principles of aider-and-abettor liability.
Generally, “[t]here are two kinds of criminal intent: general intent and specific intent. ‘“When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.” [Citation.] General criminal intent thus requires no further mental state beyond willing commission of the act proscribed by law.’ [Citation.]” (People v. Keovilayphone (2005) 132 Cal.App.4th 491, 496.)
Attempted murder is a specific intent crime. (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) For this reason, when the evidence shows that a shooter fired at a group of persons that included the shooter’s primary target, special difficulties arise in proving that multiple murders were attempted. As our Supreme Court has explained, in such circumstances, the prosecution may sometimes properly rely on the “kill zone” theory of “concurrent intent”: “‘The intent is concurrent... when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim’s vicinity.... [C]onsider a defendant who intends to kill A and, in order to ensure A’s death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a “kill zone” to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A’s head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A’s immediate vicinity to ensure A’s death.’” (People v. Bland (2002) 28 Cal.4th 313, 329 -330, quoting Ford v. State (1993) 330 Md. 682, 716-717 [625 A.2d 984, 1000-1001].)
Assault with a semiautomatic firearm is a general intent crime. (See People v. Williams (2001) 26 Cal.4th 779, 786.) To establish the state of mind required for this offense, the prosecution need show only that “the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.” (People v. Colantuono (1994) 7 Cal.4th 206, 214.) For this reason, “a specific intent to injure is not an element of assault.” (People v. Williams, supra, at pp. 782-783.) As Witkin and Epstein explain, “attempting to draw a loaded gun, or drawing it without aiming it, aiming it without firing, or firing it without [the] intent to hit may be sufficient” to establish assault with a deadly weapon. (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 40, p. 664.) Thus, in People v. Thompson (1949) 93 Cal.App.2d 780, 781-782, the appellate court affirmed the defendant’s conviction for assault with a deadly weapon on two police officers, even though the evidence showed only that the defendant aimed his gun between -- not at -- the officers when he ordered them to raise their hands.
In the instant case, the prosecution relied on the theory that appellant was liable for the charged crimes as an aider and abettor. Generally, “‘[a]ll persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission, ... are principals in any crime so committed.’” (§ 31.) To be convicted under an aiding-and-abetting theory, a defendant must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]” (People v. Beeman (1984) 35 Cal.3d 547, 554, 560, emphasis omitted.) Thus, “[a]wareness of the direct perpetrator’s purpose is critical for the alleged aider and abettor to be culpable for that perpetrator’s act.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1129.) Furthermore, to be culpable, an aider and abettor’s intention must encompass more than his or her own conduct: “an aider and abettor must intend not only the act of encouraging and facilitating but also the additional criminal act the perpetrator commits.” (Ibid.)
The existence of the requisite knowledge may be established by circumstantial evidence. (People v. Long (1970) 7 Cal.App.3d 586, 591.) Similarly, the existence of the requisite intent may be shown by “an act which has the effect of giving aid and encouragement, and which is done with knowledge of the criminal purpose of the [perpetrator] aided.” (People v. Beeman, supra, 35 Cal.3d at p. 559.)
Aiding-and-abetting liability takes two forms. (People v. McCoy, supra, 25 Cal.4th at p. 1117.) “First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a ‘natural and probable consequence’ of the crime aided and abetted.’ [Citation.] Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.” (Ibid.) Here, the trial court instructed the jury only regarding the first form of aider-and-abettor liability. We therefore confine our discussion to the state of mind required for this form of liability. (Ibid.)
“[O]utside of the natural and probable consequences doctrine, an aider and abettor’s mental state must be at least that required of the direct perpetrator.” (People v. McCoy, supra, 25 Cal.4th at p. 1118.) If the offense charged is a so-called “‘specific intent’” crime such as attempted murder, the accomplice must share the perpetrator’s specific intent. (Ibid.) Accordingly, in the case of attempted murder, “the aider and abettor must know and share the murderous intent of the actual perpetrator.” (Ibid.; People v. Lee (2003) 31 Cal.4th 613, 624 [person guilty of attempted murder as aider and abettor “must intend to kill”].) In contrast, if the charged offense is a so-called general intent crime such as assault with a semiautomatic weapon, the aider and abettor need only knowingly and intentionally facilitate the direct perpetrator’s commission of the crime, without intending some additional result or consequence not required for the crime. (See People v. Hernandez (2010) 181 Cal.App.4th 1494, 1498-1502 (Hernandez); People v. Keovilayphone, supra, 132 Cal.App.4th at p. 497 [the fact that an aider and abettor must harbor a specific intent to aid direct perpetrator of general intent crime does not engraft a specific intent onto the crime].)
An instructive application of the principle regarding general intent crimes is found in Hernandez. There, a gang member drove a car while a fellow gang member in the car fired a gun at three people. (Hernandez, supra, 181 Cal.App.4th at p. 1498.) The driver was charged with discharging a firearm at a person from a motor vehicle (§ 12034, subd. (c)), and tried as an aider and abettor. (Hernandez, at pp.1498-1499.) At trial, the jury was instructed that the offense, as a general intent crime, was committed by the passenger if he willfully and maliciously fired the gun and shot it at someone not in the car; in addition, the jury received instructions on the driver’s potential liability as an aider and abettor. (Ibid.)
Following the driver’s conviction, he contended that to show his culpability as an aider and abettor, the prosecution was obliged to prove that he aided his passenger with the intent to shoot at another person, but the instructions improperly permitted the jury to convict him without finding that he possessed this intent. (Hernandez, supra, 181 Cal.App.4th at p. 1499.) The crux of his argument was that the instructions allowed the jury to determine that he was an aider and abettor without finding (1) that the passenger intended to shoot at someone and (2) that the driver shared this intent. (Ibid.) In rejecting this contention, the appellate court reasoned that the charged offense, as a general intent crime, required only the willful firing of a gun that manifested a conscious indifference to the probability that the bullets would fly toward or near a person; no specific intent to target or hit the person was necessary. (Id. at pp. 1500-1501.) Hence, the driver could be convicted as an aider and abettor, regardless of whether the passenger intended to shoot someone or whether the driver shared that intent. (Id. at pp. 1501-1502.)
C. Underlying Proceedings
During the trial court’s discussions with counsel regarding the jury instructions, the court elected to give an instruction on the “kill zone” theory of concurrent intent, and the prosecutor decided not to request an instruction on the “natural and probable consequence” theory of aiding and abetting. Regarding the attempted murder charges, the jury was instructed with CALCRIM No. 600, which stated in pertinent part: “The defendant is charged in Counts 1 and 5 with attempted murder. [¶]... [¶] A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or ‘kill zone.’ In order to convict the defendant of the attempted murder of... Jackson Count 5 on [a] concurrent-intent theory, the People must prove that the defendant not only intended to kill... Thompson as charged in Count 1, but also either intended to kill... Jackson or intended to kill anyone within the kill zone.”
Regarding the assault charges involving Jackson and Thompson’s two siblings, the jury was instructed with CALCRIM No. 875, which stated in pertinent part: “The defendant is charged in Counts 2, 3 & 4 with assault with a semiautomatic firearm.... [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶]... [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶]... [¶] The People are not required to prove that the defendant actually intended to use force against someone when [he] acted.”
Regarding aiding and abetting liability, the jury received several instructions, including CALCRIM No. 401, which informed the jury: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”
After the jury began its deliberations, it told the trial court that it was deadlocked on all counts. When the trial court inquired whether the jury wanted some form of assistance, several jurors requested clarification of the jury instructions. The trial court asked the jury to state its questions in written form. The jury responded with two sets of questions. The first set asked: “Are the charges... 1 through 5 for [appellant] as driver? Are the charges... also for [him] if he’s in the back seat?” The second set asked: “[We seek] clarification on what wrongful intent means for [the] assault charges. Does the fact that the two children were in the kill zone imply intent, or does the perpetrator and people abetting the crime need to target the two children specifically to have wrongful intent?”
The trial court responded with answers approved by both the prosecutor and appellant’s counsel. To the first set of questions, the court replied: “The answer to that question is yes. But [appellant] has to qualify as an aider and abettor as either a driver or back seat passenger.” To the second set, the court responded: “The kill zone theory is limited to the charges in counts 1 and 5[, ] attempted murder. But the principal and aider and abettor need not specifically target the two children to be guilty of the charges in counts 3 and 4.” Following these responses, the jury found appellant guilty of assault, as charged in counts 2 through 4, but remained deadlocked on the attempted murder charges.
D. No Instructional Error
Appellant contends that the “kill zone” instruction misled the jury regarding the state of mind required for aiding-and-abetting liability in connection with the assault counts. Pointing to the jury’s initial deadlock on all the charges, he argues that the jury was unable to find that appellant intended to kill Thompson and Jackson because the jury believed that appellant had insufficient advance knowledge of the shooting. This belief, appellant maintains, also precluded a finding that he had the general intent required for assault. Appellant further argues that despite the trial court’s clarifying instructions, the “kill zone” instruction ultimately motivated the jury to find the requisite general intent for assault, even though some jurors had reasonable doubts regarding his knowledge of the impending shooting. For the reasons explained below, we reject appellant’s contention regarding instructional error.
Because appellant does not question the giving of the instruction in connection with the attempted murder charges, we limit our inquiry to whether the instruction misled the jury regarding the assault charges. Nonetheless, we note that the evidence appears to support the instruction. The instruction effectively designated Thompson as the primary target, and defined the “kill zone” to encompass Jackson -- but not Thompson’s siblings -- for purposes of the concurrent intent theory. At trial, the evidence indisputably established that the shooting occurred in front of Thompson’s apartment, where Thompson and Jackson were standing “right next” to each other; that two shots were fired; and that Thompson was wounded. This evidence supports the reasonable inference that the shooter’s “kill zone” was limited to the immediate area in which Thompson and Jackson stood, and did not encompass the children, who were apparently a bit removed from them. However, even if the evidence was insufficient to support the instruction, the error was not prejudicial to appellant: the jury returned no verdict on the attempted murder counts, and the instruction did not confuse the jury regarding the assault counts, as we explain below.
On the record before us, there is no reasonable likelihood that the instruction misled the jury regarding the assault counts. As our Supreme Court has explained, “‘[j]urors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.’” (People v. Lewis (2001) 26 Cal.4th 334, 390, quoting Conservatorship of Early (1983) 35 Cal.3d 244, 253.) Here, the jury was correctly instructed regarding the assault counts and aiding-and-abetting liability, and nothing suggests that the jury misapplied these instructions.
To begin, the jury was properly instructed concerning the general principles governing the state of mind required for aiding and abetting an assault with a semiautomatic firearm (see pt. B., ante). In addition, in response to the jury’s questions, the trial court informed the jury (1) that the “kill zone” theory of concurrent intent was inapplicable to the assault counts and (2) that “the principal and aider and abettor need not specifically target the two children to be guilty of [the assaults].” These additional instructions accurately reflect the governing principles we have discussed (see pt. B., ante).
Contrary to appellant’s contention, the jury’s requests for clarification betray no confusion regarding whether appellant had sufficient knowledge of the impending shooting to possess the mental state needed for assault. Rather, the jury sought guidance regarding whether an assault on the children required the specific intent to target them. The trial court’s responses on this matter were clear and correct.
Furthermore, nothing in the jury’s pattern of verdicts suggests that the “kill zone” instruction improperly extinguished reasonable doubts among the jurors whether appellant had sufficient knowledge of the impending shooting. Any such doubt would preclude appellant’s liability for both attempted murder and assault under an aiding-and-abetting theory, which -- as the jury was instructed -- requires knowledge of the direct perpetrator’s “‘unlawful purpose.’” (See People v. Mendoza, supra, 18 Cal.4th at p. 1122.) However, after the trial court provided the clarifying instructions, the jury remained deadlocked on the attempted murder counts but found appellant guilty on the assault counts. In sum, there was no instructional error.
People v. Bragg (2008) 161 Cal.App.4th 1385, upon which appellant relies, is inapposite. There, the appellant court held that the jury properly received a “kill zone” instruction in connection with charges of attempted murder, but also concluded that the trial court erred in instructing the jury on assault with a firearm as a lesser included offense, as the allegations in the information were insufficient to support the charge. (Id. at pp. 1393-1402.) No such error is present here.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.