Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR250927
SIMONS, Acting P. J.
Defendant Marcus Givens fired several shots at a vehicle being driven by Patricia C., a person who did not know him, but did not kill her. Unbeknownst to defendant, Patricia C.’s three children were passengers in the vehicle at the time of the shooting. No one was physically injured in the assault. Following a preliminary hearing, the magistrate dismissed three counts of attempted murder, each of which named one of the children, because the “defendant was not aware that there [were] other people in the car.” After the prosecution refiled these charges in superior court, a judge granted a motion to dismiss (Pen. Code, § 995), echoing the magistrate’s reasoning. The People appeal this ruling. They argue the evidence introduced at the preliminary hearing supports the rational inference that defendant intended to kill every person in the vehicle, and it is immaterial that he was unaware that anyone other than the driver was present at the time of the shooting. We agree and reverse.
All undesignated section references are to the Penal Code.
PROCEDURAL BACKGROUND
On January 3, 2008, the People filed a felony complaint in the Solano County Superior Court, charging defendant with four counts of attempted murder (§§ 187, subd. (a), 664) of Patricia C. and her three children, J.C. (age 14), Y.C. (age 12) and D.C. (age 10), with enhancements for personal use and intentional discharge of a firearm alleged as to each count (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b) & (c)); and with a misdemeanor charge of resisting a peace officer (§ 148, subd. (a)(1)). On April 7, 2008, at the conclusion of the preliminary hearing, the magistrate held defendant to answer for four counts of attempted murder, and certified the misdemeanor charge to the superior court. On April 9, the magistrate granted rehearing of the holding order on its own motion. On April 15, the magistrate reversed itself and dismissed the three charges of attempted murder as to Patricia C.’s children, holding defendant to answer for three counts of assault with a semiautomatic firearm (§ 245, subd. (b)) as to those victims.
On April 22, 2008, the District Attorney of Solano County filed an information charging defendant with attempted murder of Patricia C., J.C., D.C. and Y.C. (§§ 187, subd. (a), 664) (counts 1-4), with enhancements for personal use and intentional discharge of a firearm alleged as to each count (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b) & (c)); with assault with a semiautomatic firearm on J.C., D.C. and Y.C. (§ 245, subd. (b)) (counts 5-7), with enhancements for personal use of a firearm (§ 12022.5, subd. (a)(1)); with having a concealed firearm on his person (§ 12025, subd. (a)(2)) (counts 8 & 10); with carrying a loaded, unregistered firearm (§ 12031, subd. (a)(1)) (count 9); with carrying a loaded firearm in a public place (§ 12031, subd. (a)(1)) (count 11); and with misdemeanor resisting a peace officer (§ 148, subd. (a)(1)) (count 12).
On June 5, 2008, defendant filed a section 995 motion to set aside counts 2, 3, 4, 8, 9 and 10 of the information, and on July 8, the superior court conducted a hearing on that motion. At the conclusion of the hearing, the superior court granted defendant’s motion to dismiss counts 2, 3 and 4 of the information, alleging attempted murder of each of the three children. The court denied the motion as to counts 8, 9 and 10, but reduced counts 8 and 9 to misdemeanors.
On August 26, 2008, the People filed a timely notice of appeal.
The People also filed a petition for writ of mandate with this court (A122476), challenging the superior court’s dismissal of counts 2, 3 and 4. On September 11, 2008, the writ was denied with the following explanation: “The petition states that real party in interest has entered a time waiver. . . . Under the circumstances, the petition fails to demonstrate that the People’s appellate remedy is inadequate.”
The facts are taken from the preliminary hearing in this case.
On January 1, 2008, around 12:20 a.m., Patricia C. was driving her van in Fairfield. Her three children, J.C., D.C. and Y.C., were also in the vehicle, the oldest in the front passenger seat, the other two in the second row seats in the back. The windows of the van, where the second row of seats were located, were tinted.
When Patricia C. stopped at an intersection, she saw defendant standing on the opposite corner, approximately 11 to 23 feet away, holding a gun at his side. Patricia C. had never seen him before. As Patricia C. drove through the intersection, defendant, looked directly at her, raised the gun, pointed it at her and started shooting. Patricia C. and D.C. heard three shots. Patricia C. believed that one bullet hit the passenger side window, shattering it, and another struck the front passenger door. Patricia C. hit the accelerator and drove home. No one was injured.
Robert Manning was riding his bicycle near the intersection when he saw a man with a gun run toward Patricia C.’s van and begin shooting. The man continued to fire as the van was moving. Manning estimated that he heard five shots.
Fairfield Police Officer Augusto was on patrol in a canine unit that morning, and he saw defendant raise a handgun and fire three to four times. Augusto drove toward defendant, who turned, ran southbound about 100 feet, and tripped and fell. Augusto released his canine, which seized defendant, and Augusto arrested him.
Officers found a nine-millimeter Glock handgun where defendant had tripped and fallen, and an unspecified number of nine-millimeter shell casings at the intersection where defendant had shot at the van. A bullet fragment was found in the van.
STANDARD OF REVIEW
“A magistrate may strike a [charge] if he or she finds the evidence presented at the preliminary hearing does not provide ‘sufficient cause to believe that the defendant is guilty’ of the charged allegation. [Citations.] This does not preclude the prosecutor from later filing an information charging the same matter omitted by the magistrate from the order of commitment. [Citations.] Where the prosecution later refiles such allegation in the information before the superior court, defendant may move to have the allegation set aside if ‘the defendant had been committed without reasonable or probable cause.’ [Citations.] The term ‘sufficient cause’ in section 872, subdivision (a) ‘ “is generally equivalent to ‘reasonable and probable cause’ ” ’ in section 995, subdivision (a)(2)(B), i.e., ‘ “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.” ’ [Citation.] [¶] When we review a section 995 motion, we ‘disregard[] the ruling of the superior court and directly review[] the determination of the magistrate.’ [Citations.] We conduct an independent review of the evidence, but will not substitute our judgment for that of the magistrate as to the credibility or weight of the evidence. [Citation.] [A defendant is properly held to answer] ‘if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.’ [Citation.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 653-654, fns. omitted.)
DISCUSSION
In People v. Bland (2002) 28 Cal.4th 313, the defendant and another man shot into a moving vehicle, killing the driver and wounding the two passengers. In reversing the convictions for attempting to murder the passengers, the Supreme Court held that the specific intent to kill could not be transferred “ ‘from an intended victim to an unintended victim’ ” so as to provide the necessary mental state for attempted murder. (Id. at p. 326; see People v. Smith (2005) 37 Cal.4th 733, 739-740.) But Bland did hold that “a person who shoots at a group of people . . . [,] even if that person primarily targeted only one of them . . . [,] might still be guilty of attempted murder of everyone in the group” under a theory of concurrent intent. (Bland, at p. 329.) The Supreme Court explained “that although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the ‘kill zone.’ ‘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.’ ” (Ibid.)
In Bland, the defendant was aware of the passengers’ presence when he shot at the driver. (Bland, supra, 28 Cal.4th at p. 318.) People v. Adams (2008) 169 Cal.App.4th 1009 is instructive on the question raised in our case. In Adams, the defendant was convicted of the premeditated murder of one victim, by means of arson, and the attempted murder of three other persons who were at the site of the arson fire. She argued the attempted murder convictions should be vacated because she did not know those three victims were present when the fire was set. (Id. at p. 1012.) The court rejected this contention, concluding that the concurrent intent theory articulated in Bland did not depend upon the defendant’s awareness of the presence of others. “The theory imposes attempted murder liability where the defendant intentionally created a kill zone in order to ensure the defendant’s primary objective of killing a specific person or persons despite the recognition, or with acceptance of the fact, that a natural and probable consequence of that act would be that anyone within that zone could or would die. Whether or not the defendant is aware that the attempted murder victims were within the zone of harm is not a defense, as long as the victims actually were within the zone of harm. [Citation.]” (Adams, at p. 1023.)
We agree with the Adams analysis, requiring reversal of the decision below. Defendant fired as many as five shots from a nine-millimeter Glock handgun at a van containing a driver and three passengers. This evidence created a rational possibility that defendant intentionally created a kill zone to ensure he would kill the driver, implicitly recognizing that anyone within that zone could die.
DISPOSITION
The judgment dismissing counts 2, 3 and 4 of the information is reversed and the case remanded to the trial court.
We concur. NEEDHAM, J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.