Opinion
A151915
09-25-2018
THE PEOPLE, Plaintiff and Appellant, v. CHEF ROBERT FRANSEN, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-16-85296-001)
Chef Robert Fransen was charged with two counts of assault with a semiautomatic firearm based on evidence he shot at Todd Marshall, narrowly missing both Todd and his wife, Janelle. The magistrate held Fransen to answer on both counts despite finding no evidence Fransen knew Janelle was present at the time of the shooting. The trial court dismissed the assault charge as to Janelle, ruling evidence was insufficient that Fransen knew he was shooting in the direction of a residence. We affirm.
We refer to the Marshalls by first name for clarity and simplicity.
I. BACKGROUND
On April 1, 2016, Fransen was charged by felony complaint with assault with a semiautomatic firearm against Todd and Janelle on November 9, 2014. (Pen. Code, § 245, subd. (b); counts 1 & 2, respectively.) As to both counts, it was alleged Fransen personally used a firearm, a Glock 27. (§ 12022.5, subd. (a).) Based on a 2011 battery conviction (§ 243, subd. (d)), it was further alleged Fransen had a prior serious felony conviction (§ 667, subd. (a)), a prior strike (§§ 667, 1170.12), and a prior prison term (§ 667.5, subd. (b)).
All statutory references are to the Penal Code.
Preliminary Hearing Evidence
Todd and Janelle lived in a trailer across a creek from Low Gap Park in Ukiah. On November 9, 2014, Todd told police that around 9:00 p.m. a group of people near the park's picnic area had been making a lot of noise. While standing near his trailer, Todd yelled, "You guys need to fucking be quiet. It's sundown. Get out of the park." A voice responded, "Fuck you, you fucking nigger." Someone in the group threatened Todd, and he said, "Go ahead and do it." A member of the group claimed to be "fresh out of the pen," and a gunshot was fired in Todd's direction. Janelle told police she was standing outside the trailer speaking to a 911 dispatcher on the phone when the shot was fired, and she heard the bullet pass behind her into the trees. Neither Todd nor Janelle could provide a physical description of the shooter. Todd said he never saw the members of the group but could tell they were African-American by the way they talked. "[A] lot of foliage [was] between the Marshalls' trailer and the park."
A photograph taken by a police officer during daylight hours depicted the view from the park toward the Marshall's trailer (Exhibit 16). The black-and-white photocopy of Exhibit 16 in the appellate record shows a line of trees and no discernable structure, which is consistent with the distribution of trees shown on an aerial map of the park (Exhibit 11). In the context of the officer's testimony and other admitted photographic exhibits, Exhibit 16 appears to have been taken from where a spent casing was found near a covered park structure.
During a January 2015 interview, Todd told police he had just come home from work on November 9, 2014, when he heard a loud group and a fireworks sound from the covered park area. The group was initially about 70 yards from Todd but came as close as about 45 yards during the incident. Two men and one or two women were present, and one man did "90 percent of the talking." The women tried to encourage the men to leave. Todd yelled at the group to "[s]hut the fuck up." The most vocal man threatened to "whoop [Todd's] skinny white ass." More than one group member used the word "nigger." The main speaker said he was recently in prison and the group had guns. Todd responded, "Be careful, everybody has guns." The vocal man threatened to shoot Todd, and Todd said, "If you've got the balls to use it, use it." Similar words were exchanged, then Todd believed a shot was fired in his direction and heard a bullet go through tree leaves above his head. He was standing outside his residence at the time, and the front light was on. After the gunfire, Todd ran after the group as they started to leave.
During a separate January 2015 police interview regarding the incident, Janelle said a group of people in the park yelled "horrible" things at Todd, including "puny white boy" and "nigger." One person did most of the talking. Women with the group tried to get the others to leave. Someone said he had just been in prison, was on parole, and was not afraid to go back. Someone said there was a gun. Janelle heard a gunshot followed by the sound of a bullet; she said the dispatcher also heard the gunshot over the phone. The gunshot was definitely aimed at Todd. The group ran toward the parking lot, and Janelle saw the brake lights of a car heading north with its headlights off.
Other evidence tied Fransen to the shooting. A police officer who responded shortly after the shooting did not see anyone in the park. The car Janelle saw leave the parking lot was stopped by police, and neither Janelle nor an investigating officer saw any other cars in the area. The stopped car had five occupants: Fransen, two other men, and two women including Fransen's girlfriend. Of the five, only Fransen had served time in prison. Three of the car's occupants, including Fransen, acknowledged they had been in the park. A functioning .40 caliber Smith & Wesson Glock Model 27 was found in the purse of Fransen's girlfriend. The spent shell casing found the next day near a covered structure in the park was from a bullet fired from that gun, according to a firearms expert.
The others were not African-American. The appellate record does not disclose Fransen's race.
The preliminary hearing magistrate found sufficient evidence that the cartridge found in the park was fired from the gun found in the girlfriend's purse; Fransen was the man who said he had been in prison and threatened to shoot Todd; and Fransen fired the gun at Todd. However, the magistrate initially questioned whether evidence of an assault against Janelle was sufficient. The prosecutor argued: "She was in what we call the 'zone of danger' [from] the gunshot. A shot at [Todd] could have just as easily struck [Janelle] though not by design." The magistrate ultimately held Fransen to answer on both assault charges: "There's no indication that [Janelle] was part of this verbal exchange, that whoever was holding the pistol, firing the pistol had any idea [Janelle] was even there. [¶] Nevertheless, I believe the law doesn't require a specific intent to harm a specific individual, simply a willing discharge of a firearm towards people. And that appears to be what happened in this case. [Fransen] could have injured either of the Marshalls at the time he discharged the weapon. [¶] Therefore, the court finds sufficient evidence to support count two and the second special allegation."
Motion to Dismiss
Fransen moved to dismiss the information (§ 995), arguing evidence tying him to the shooting was insufficient. At a hearing on the motion, the trial court said it was inclined to dismiss the charged assault on Janelle. The prosecution argued the preliminary hearing evidence supported inferences that Fransen could see and hear that both Todd and Janelle were present when he fired the shot, thus supporting his liability for assault against both. He further argued the assault charge was supported by evidence Fransen was actually aware he was shooting toward a residence, and by evidence Janelle was in the gunshot's zone of danger regardless of whether Fransen knew she or the residence was in the line of fire.
The trial court dismissed count two and the related enhancement. It deferred to the magistrate's finding that there was no evidence Fransen knew Janelle was present, and additionally ruled "there was no evidence that was presented at the preliminary hearing that [Fransen] knew . . . , and this is the important part for me, that there was a home he was firing into." The court disagreed with the magistrate that a willing discharge of a firearm toward people who could have been injured sufficed alone to support the charge. Under that theory, the court said, "everyone for miles around could have been a victim of [Fransen's] discharge of that firearm. That bullet could have landed anywhere, which is why the negligent discharge of a firearm is a statute on the books." Instead, the cases require "some awareness, a reasonable foreseeability that there is going to be this other assault against another victim." The People appeal the court's dismissal of the assault charge and related enhancement as to Janelle.
The trial court also said: "Best evidence that I have at the prelim is [Janelle] heard a bullet go through the trees, but I don't have any evidence of where she was when she heard that other than she was on the phone to 911. So I don't know if she was inside the house . . . or if she was out on the deck, if she was standing next to [Todd]." However, an officer testified that Janelle told him the night of the shooting "[s]he was standing outside and was on the phone with U.P.D. dispatch when the shot was fired." (Italics added.)
II. DISCUSSION
"[S]ection 995 allows a defendant to challenge an information based on the sufficiency of the record made before the magistrate at the preliminary hearing." (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1071-1072; see People v. Herrera (2006) 136 Cal.App.4th 1191, 1202 [preliminary hearings and § 995 motions provide " ' "a judicial check on the exercise of prosecutorial discretion" ' and help ensure ' "the defendant [is] not . . . charged excessively" ' "].) An information "shall be set aside" if the defendant has been "committed without reasonable or probable cause." (§ 995, subd. (a)(2)(B).) " ' " 'Reasonable or probable cause' means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. 'Reasonable and probable cause' may exist although there may be some room for doubt." ' " (People v. Mower (2002) 28 Cal.4th 457, 473.)
Appellate review of a section 995 determination, " 'in effect disregard[s] the ruling of the superior court and directly review[s] the determination of the magistrate holding the defendant to answer.' [Citations.] Insofar as the . . . section 995 motion rests on issues of statutory interpretation, our review is de novo. [Citation.] Insofar as it rests on consideration of the evidence adduced, we must draw all reasonable inferences in favor of the information [citations] and decide whether there is probable cause to hold the defendant[] to answer, i.e., whether the evidence is such that 'a reasonable person could harbor a strong suspicion of the defendant's guilt.' " (Lexin v. Superior Court, supra, 47 Cal.4th at p. 1072.) Neither the superior court nor the reviewing court may substitute its judgment for that of the committing magistrate concerning the weight of the evidence or the credibility of the witnesses. (People v. Block (1971) 6 Cal.3d 239, 245.) A. Elements of Assault
Section 245, subdivision (b) applies to "[a]ny person who commits an assault upon the person of another with a semiautomatic firearm . . . ." Assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.)
In People v. Williams (2001) 26 Cal.4th 779 (Williams), the Supreme Court described the mens rea required for assault. As a general intent crime, assault "does not require a specific intent to injure the victim." (Id. at p. 788.) However, "a defendant is only guilty of assault if he intends to commit an act 'which would be indictable [as a battery], if done, either from its own character or that of its natural and probable consequences.' [Citation.] Logically, a defendant cannot have such an intent unless he actually knows those facts sufficient to establish that his act by its nature will probably and directly result in physical force being applied to another, i.e., a battery. (Cf. § 7, subd. 5 [actual knowledge means 'a knowledge that the facts exist which bring the act or omission within the provisions of this code'].) In other words, a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur." (Williams, at pp. 787-788.) "[A] defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery." (Id. at p. 788, fn. 3.) On the other hand, "mere recklessness or criminal negligence is . . . not enough [citation], because a jury cannot find a defendant guilty of assault based on facts he should have known but did not know (see Walker v. Superior Court (1988) 47 Cal.3d 112, 136 ['criminal negligence must be evaluated objectively'])." (Williams, at p. 788, fn. omitted.)
Several cases have applied these principles to defendants charged with assaulting persons other than the intended targets. In People v. Riva (2003) 112 Cal.App.4th 981 (Riva), an assault conviction was affirmed for a defendant who shot at a car and hit a nearby pedestrian instead. (Id. at pp. 986, 996-1000.) The court held the conviction was consistent with Williams because "[t]he facts in this case would lead a reasonable person to realize if he fired a gun at someone in a car at this time of day in this kind of neighborhood the bullet could strike a pedestrian and a battery would directly, naturally and probably result from his conduct." (Riva, at p. 998, fn. omitted.) The court described the relevant circumstances as follows: "The shooting took place on a February evening at approximately 5:00 p.m., when people are normally returning from work, school or shopping. Although it would have been dark at that time of day, the shooting took place in an urban neighborhood consisting of residences . . . and small businesses . . . . [The victim], her friend . . . , and [her] two grandchildren had just left the market and were approaching [a residence] when Riva shot [her]. There were other pedestrians, including her grandchildren, and 'a lot of cars' in the area when the shooting occurred." (Ibid.) The Riva court did not attempt to quantify the degree of foreseeability necessary before a defendant can be held criminal liable for an assault on an unknown victim.
The People also cite two cases decided before Williams, supra, 26 Cal.4th 779. In People v. Spence (1970) 3 Cal.App.3d 599, disapproved on other grounds by People v. Rocha (1971) 3 Cal.3d 893, 899, footnote 8, the court affirmed three counts of assault based on two gunshots fired at a car with three occupants. (Spence, at pp. 602-604; see id. at p. 604 ["nothing novel in having more victims than criminal acts"].) Spence is consistent with Williams because the factual background suggests the defendant was aware that three people were in the car he targeted. (Id. at p. 602.) That is, he was actually aware of facts that would lead a reasonable person to realize the gunshots would directly, naturally and probably result in a battery on three persons. In People v. Lee (1994) 28 Cal.App.4th 1724, the court affirmed an assault conviction based on the defendant's firing into a crowd that included the alleged assault victim. (Id. at pp. 1728-1730, 1734-1736.) Again, the decision is consistent with Williams because the court expressly noted "it was undisputed that Lee was aware of the presence of the group, including [the assault victim]" when he fired the shots. (Id. at p. 1735.)
In People v. Felix (2009) 172 Cal.App.4th 1618 (Felix), assault convictions were affirmed for a defendant who shot into a home targeting an adult but knowing "it was highly likely that two children were also in the house." (Id. at pp. 1621-1622.) The court held, "While not every shooting into a car or building will satisfy the 'actual knowledge' requirement of Williams, here Felix had detailed, intimate knowledge of the house and inhabitants. He actually knew he was endangering the lives of three or more members of the family when he fired into the house." (Id. at p. 1630.)
Finally, in People v. Trujillo (2010) 181 Cal.App.4th 1344 (Trujillo), two assault convictions were affirmed for a defendant who shot at a car with two occupants but might not have known the backseat passenger was present. (Id. at p. 1347-1349.) The victim "was a reasonably foreseeable victim of defendant's assault under the rationale expressed in Felix and Riva. The jurors could have reasonably found that a person with actual knowledge that he is shooting indiscriminately at a moving vehicle would realize that his conduct would directly, naturally, and probably result in a battery to anyone and everyone inside the [vehicle]. Passengers in cars are no less foreseeable than the pedestrian that was hit in Riva. . . . Whether defendant was subjectively aware of such risk or had the specific intent to injure any occupant of the car is irrelevant." (Id. at p. 1357.)
In sum, consistent with Williams, supra, 26 Cal.4th 779, courts have affirmed assault convictions for defendants who shot at a location while actually aware of facts (e.g., the presence of a busy pedestrian area, passenger car, or residence) that would lead a reasonable person to realize a battery on the victims would directly, naturally and probably result from the gunfire (because unknown persons are likely to be present). We now consider the evidence presented at Fransen's preliminary hearing in light of these principles. B. Analysis
In the trial court, the People argued evidence of assault against Janelle was sufficient because (1) Fransen actually knew Janelle was present near Todd when the gun was fired; (2) Fransen actually knew he was firing in the direction of a residence; and (3) Fransen was responsible for assaulting all persons in the zone of danger (also referred to as the "kill zone") of his gunfire regardless of whether he was aware Janelle or a residence was in the line of fire. On appeal, the People expressly raise the first two arguments and allude to the third. We find none of the arguments persuasive.
1. Knowledge of Janelle's Presence
The People argue "all reasonable inferences [from the evidence] must be resolved in favor of the magistrate's holding order," suggesting we should infer from the preliminary hearing evidence that Fransen knew Janelle was present when the shot was fired—despite the magistrate's express finding to the contrary. But neither the case they cite (People v. Hall (1971) 3 Cal.3d 992, 996) nor its supporting authority (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474) involved express magistrate factual findings inconsistent with the People's theory of why the defendant should be held over on charges. (Hall, at pp. 994-996, 999 [reversing trial court's dismissal of charge after magistrate held defendant over on charge]; Rideout, at pp. 473, 475 [affirming trial court's denial of motion to dismiss after magistrate held defendant over on charge].)
A circumstance more analogous to the instant case arises when a magistrate dismisses charges, the prosecution nevertheless includes the charges in a subsequent information, and the defendant challenges those charges in a motion to dismiss. In such a case, "[a] magistrate's material factual findings are binding on the superior court considering a section 995 motion," and neither the trial court nor the reviewing court may draw conflicting inferences from the preliminary hearing evidence. (People v. Leon (2015) 61 Cal.4th 569, 596, italics added; see People v. Superior Court (Day) (1985) 174 Cal.App.3d 1008, 1018-1019 [deference required only to magistrate's express factual findings and the inexorable implications of those findings]; People v. Block, supra, 6 Cal.3d at p. 245 [appellate court standard of review of magistrate decision is same as trial court's].) We conclude we are bound by the magistrate's express finding of an absence of evidence that Fransen was aware of Janelle's presence. We therefore reject arguments relying on inferences that Fransen was aware of her presence.
In any event, we are not persuaded by the People's analysis of the preliminary hearing evidence. The People first argue "lighting conditions near the group . . . were sufficient for [Todd] to make out that the group was composed of at least two males and two females"; "the lighting conditions near the group were worse than those near the house"; therefore, the evidence was sufficient to support an inference Fransen could "see that Janelle was present when she came outside of the house after the argument began." We disagree. Todd told police the night of the incident that he never saw the group and could not describe the shooter, even though he chased them after the shooting. Todd explained he believed the speakers were African-American based on the way they talked, and it can be inferred he identified the group members' genders based on their voices as well, as he specifically denied seeing the group but reported hearing the women encouraging the men to leave. Moreover, the disputants were 40 to 70 yards apart during the incident, and both eyewitness testimony and photographic evidence established "a lot of foliage" was between the group and the Marshalls' trailer, undermining any inference Fransen could actually see Janelle.
The People next argue "because Janelle and Todd were able to hear the members of the group and distinguish their voices, it is reasonable to infer that the members of the group could in turn hear that more than one person was present at or near the Marshalls' residence." However, Todd "yelled" at the group and the belligerent tone of comments coming from the group suggested they were shouting too. No evidence indicates Janelle shouted at the group or into the phone. Indeed, the magistrate specifically found, "There's no indication that [Janelle] was part of this verbal exchange" between Todd and the group in the park.
Finally, the People argue "because Janelle was in a position to immediately see the members of the group as they ran away, it is reasonable to infer that Janelle was in a position to see them at the time of the gunshot. From this, it is reasonable to infer she was in a position to be seen at the time of the gunshot." However, Janelle told police she could not provide a physical description of the shooter, and her ability to follow the group's movement after the shooting and track a car with its brake lights on does not support an inference of clear sightlines between Janelle and Fransen at the time the gun was fired. Indeed, the photographic evidence of substantial foliage between the trailer and the location where the spent casing was found is to the contrary.
We therefore reject the People's arguments that the evidence permits inferences that Fransen knew Janelle was present.
2. Knowledge of Residence in Line of Fire
The People alternatively argue the preliminary hearing evidence supported an inference that Fransen knew he was shooting toward a residence. The argument is implicit in the People's statement that, "because Todd was standing near a house at a time of day in which people are often home, and because houses are often occupied by more than one person, it is reasonable to infer a reasonable person would suspect that more than one person would have been present in the general direction of the gunshot." The magistrate did not make an express finding on this point, and the trial court ruled based on its own review of the preliminary hearing evidence that "there was no evidence . . . Fransen knew . . . there was a home he was firing into."
As discussed post, the magistrate appears to have based his holding order as to Janelle on an erroneous zone of danger theory.
While we are not bound by the trial court's view of the evidence, we concur in its reading of the record. For the reasons previously discussed (Todd's statement he could not see the group; Todd's and Janelle's inability to describe the shooter; the distance between Todd and the group; the presence of foliage between them; and the dark conditions due to the late hour), the evidence did not demonstrate Fransen could see either the Marshalls or the residence, even though Todd was standing near the residence with the porch light on. As noted ante in footnote 3, a police photograph taken in daylight (Exhibit 16) shows no discernible structure in the area where Todd stood.
The People place great weight on testimony that a porch light was on in the area where Todd stood. That fact alone does not establish that Fransen could actually see the residence or know the light was located on a porch, and the magistrate did not make such findings. --------
3. Zone of Danger
The magistrate ruled Fransen's unawareness of Janelle's presence was immaterial because "the law doesn't require a specific intent to harm a specific individual, simply a willing discharge of a firearm towards people. . . . [Fransen] could have injured either of the Marshalls at the time he discharged the weapon." This ruling was consistent with the prosecutor's trial court argument that Fransen could be prosecuted for assaulting Janelle because "[s]he was in what we call the 'zone of danger' [from] the gunshot. A shot at [Todd] could have just as easily struck [Janelle] though not by design." We disagree with the People's premise. The zone of danger doctrine has no application in these circumstances and cannot support the charged assault against Janelle.
The Supreme Court explained the doctrine in People v. Bland (2002) 28 Cal.4th 313 (Bland), a case involving charges of the attempted murder of persons who were not the intended target. (See id. at pp. 317-318.) The court explained the doctrine was based on " 'what is essentially concurrent intent.' " (Id. at p. 329.) " '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. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider 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,' " sufficient to convict the defendant of the attempted murders of those others. (Id. at pp. 329-330, italics added; see id. at pp. 327-328 [attempted murder requires intent to kill].) The Bland court stated the case before it "permit[ted]—virtually compel[led]" a kill zone inference (id. at p. 330): the defendant "approached the driver's side of the car, [spoke to Wilson, the driver] . . . , and started shooting into the vehicle with a .38-caliber handgun. Wilson managed to start driving away. As he did so, both defendant and [another] man fired at the car." (Id. at p. 318.) The court held a jury could reasonably find "a concurrent intent to kill [the] passengers [in Wilson's car] when the defendant and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone." (Id. at pp. 330-331; see id. at p. 333.) The court affirmed two convictions for attempted murder of the passengers after concluding the jury was properly instructed on the requisite intent for attempted murder. (Id. at p. 333.)
In dicta, the Trujillo court relied in part on this passage from Bland to affirm the defendant's conviction for assault on the passenger of the vehicle he shot into. (Trujillo, supra, 181 Cal.App.4th at pp. 1355-1357; see id. at p. 1357 ["[e]ven if . . . the kill zone theory does not apply here, we would conclude [the victim] was a reasonably foreseeable victim of defendant's assault under the rationale expressed in in Felix and Riva"].) After discussing kill zone cases that involved strafing residential buildings with assault-weapon and shotgun fire (People v. Vang (2001) 87 Cal.App.4th 554, 557-558) and residential arson (People v. Adams (2008) 169 Cal.App.4th 1009, 1013-1015), the Trujillo court reasoned: "[I]f the defendants in [those cases] harbored the specific intent to kill people inside buildings when they were unaware that such persons were in the buildings, it would be absurd to find that they did not also have the mental state required to be convicted of assault against those same victims; the specific intent to kill everyone in a building by shooting them . . . or burning them . . . necessarily includes an awareness of facts (shooting into or burning an occupied residence) such that a reasonable person would realize a battery against such persons would directly, naturally and probably result from his or her conduct. Here, defendant had the requisite mental state for assault and essentially created a zone of harm inside the [car] when he shot a flurry of bullets at it. Just as the evidence would have supported convictions for attempted murder of [the two victims here] . . . under a kill zone theory, the evidence is sufficient to support the convictions of assault against both occupants of the [car]." (Id. at p. 1357.)
We agree with Trujillo that proof of concurrent intent to kill sufficient to support attempted murder convictions in a kill zone case would also support the necessary mens rea for assault convictions on the same facts. In Trujillo, however, the jury acquitted the defendant of attempted murder and thus found the evidence was insufficient that he acted with an intent to kill everyone in the car. (Trujillo, supra, 181 Cal.App.4th at p. 1347.) What supported the assault convictions in Trujillo was proof the defendant was actually aware he was firing into a car and a reasonable person would realize that firing into a car is likely to result in injuries to unknown persons in that car. (See id. at p. 1354.) Evidence sufficient to support kill zone charges (i.e., evidence of a specific intent to kill all known and unknown persons in a location) may be sufficient to support assault charges (i.e., actual awareness that a shooting is likely to injure unknown persons), but not all cases involving shootings at vehicles or residences necessarily include evidence sufficient to support either or both charges. (Id. at p. 1357.)
Here, Fransen allegedly shot a single bullet in Todd's direction. This was also in the direction of Janelle and the Marshalls' residence, although no evidence shows either was visible to Fransen. Fransen did not use a method of attack designed to ensure everyone in Todd's vicinity would risk death, such that the kill zone doctrine would apply and he could be ascribed with an intent to kill all persons, known or unknown, who might be present. (See People v. Perez (2010) 50 Cal.4th 222, 232 [distinguishing Bland, supra, 28 Cal.4th 313 and holding "[t]he indiscriminate firing of a single shot at a group of persons, without more, does not" implicate the kill zone doctrine].) The kill zone doctrine, therefore, is inapplicable and cannot support the magistrate's holding order on the lesser count of assault with a semiautomatic firearm under the rationale of Trujillo, supra, 181 Cal.App.4th 1344. Insufficient evidence was presented that Fransen was actually aware of facts that would lead a reasonable person to believe that firing toward Todd would result in injury to other unknown persons. Therefore, the trial court properly dismissed the assault charge and related enhancement as to Janelle.
III. DISPOSITION
The order dismissing count two and the related enhancement is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.