Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. BA282268, George Gonzalez-Lomeli, Judge.
Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant James Jackson.
Linda C. Rush, under appointment by the Court of Appeal, for Defendant and Appellant Michael Antonio Mitchell.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendants and appellants, James Jackson and Michael Antonio Mitchell, appeal from the judgments entered following their conviction, by jury trial, for first degree murder, two counts of attempted premeditated murder, and possession of a firearm by a felon (Mitchell only), with firearm and gang enhancements (Pen. Code, §§ 187, 664/187, 12021, 12022.53, 186.22, subd. (b)(1)). Sentenced to state prison for life plus 75 years to life, the defendants claim there was trial error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgments are affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
At about 7:30 p.m. on April 10, 2005, Shawnta L., Shanae H. and Shawnta’s sister-in-law were talking together in front of a house on East 56th Street in Los Angeles. Leandre Hewitt and another man were standing nearby. A white car occupied by three men came driving up slowly. The front seat passenger, who was sitting on the window frame, fired multiple gunshots over the car’s roof toward the people on the street. Shawnta, Shanae and Hewitt were all hit. Hewitt, who had been shot in the chest, died.
All further calendar references are to the year 2005 unless otherwise specified.
Maria M. lived some blocks away from the shooting scene. She heard gunshots and shortly thereafter saw a car stop nearby. The two passengers got out of the car and started running. Maria saw part of a gun in the rear passenger’s waistband. Shown a photo array, Maria initially identified defendant Mitchell as the person who got out of the front passenger seat. Two weeks later, she picked defendant Jackson out of a photo array as being the man who got out of the rear passenger seat. At trial, Maria identified Mitchell as the person who got out of the rear passenger seat, and said that Jackson looked familiar.
On April 13, police officers responding to a report of gunfire arrested R.C. R.C. led police to another location where Deon M. was talking to Antonio W. When Deon saw the police, he yelled to Antonio, who ran toward a garage and threw a gun under a car. Police recovered this gun, a .38-caliber revolver. R.C. was a member of the Oriental Boys gang; Leo and Antonio were members of the Pueblo Bishops Bloods.
R.C. told police he knew something about the shooting on 56th Street. He had heard Jackson and Mitchell talking about having been in a fight with someone named K.O. Jackson said, “Let’s go take it out on Villains.” Jackson and Mitchell left as it was getting dark. They were each carrying a revolver. The next day, R.C. overheard Mitchell and Jackson talking about a shooting they had carried out. According to Jackson they had “seen a nigger, a couple people . . . standing right there, and a nigger was taking a piss. So he hopped out, and got on foot . . . . So they walk up to the guy after the guy finished taking a piss, [Jackson] start busting on him, and [Mitchell] busting on the other crowd of people . . . .” The defendants warned those listening to be watchful for a retaliatory attack by the Bloodstone Villains.
On April 13, police interviewed R.J., another member of the Oriental Boys, who said he knew something about someone getting shot in the chest. Two days earlier, he had been at the housing project where the Pueblo Bishops Bloods congregated, and he heard Jackson say he “caught that fool slipping, bending over doing something” and “got him in the chest.”
Several expended bullets were recovered from the shooting scene, but no bullet casings. A semi-automatic gun would have ejected casings, but not a revolver. Two of the bullets found at the scene had been fired by the .38-caliber revolver Antonio threw under the car. The bullet that hit Shawnta had not been fired from this gun, nor had the two other bullets recovered from the scene. The bullet that hit Hewitt could have been fired from the .38 or from a .32.
Officer Gerald Harden testified as a gang expert. He knew both defendants as members of the Pueblo Bishops Bloods, a gang of some 200 members. The Pueblo Del Rio housing project, from which the gang took its name, was within the territory claimed by the Pueblo Bishops Bloods. They were primarily an African-American gang, although they were aligned with the Oriental Boys, who were primarily Laotian and Cambodian. The two gangs committed crimes together. The Pueblo Bishops Bloods’s principal activities included drug sales, robberies, drive-by shootings, extortion and witness intimidation.
The Pueblo Bishops Bloods were bitter rivals of the Bloodstone Villains. The two gangs used to get along, but ever since a dispute over drugs and money culminated in a shooting “it’s been basically an all-out war.” The Bloodstone Villains claim 56th Street as part of their territory; in fact, it’s where they originally came from. “Q So if you were a member of the Pueblo Bishops and you wanted to find some Villains, where would you go? [¶] A 56th Street.” The Family Swans were a gang associated with the Bloodstone Villains. Hewitt, the murder victim, had been a Family Swans member. The Family Swans congregated in Bloodstone Villains territory, particularly on 56th Street.
Asked a hypothetical question based on the facts of this case, Harden testified the shooting would have been committed for the benefit of the Pueblo Bishops Bloods, most obviously because of the rivalry between them and the Bloodstone Villains. “It is . . . a constant back and forth, shooting incidents between the two gangs. They do this . . . to one-up the gang. If they’re down, they go back – and it can be a retaliation from something that could have happened months ago . . . . [¶] . . . [¶] [G]oing out there, shooting, and . . . killing somebody from the Villains . . . you’re going to . . . get shot straight to the top, be revered. . . . [¶] And it also shows the Villains that the Pueblos have no problem driving over here and pulling the trigger. They have no problem just going down the street and just shooting at a random crowd . . . believing it’s Villains.”
Officer Harden also explained that “if a gun is used in a crime, say like a shooting or a murder, a lot of times, it’s not kept with that person, it’s handed off to somebody who hands it off to somebody else.” K.O., the person whose fight with the defendants had triggered Hewitt’s killing, was a Pueblo Bishops Blood, but R.C. told police K.O. had family members who were Bloodstone Villains.
The defendants did not put on any evidence.
CONTENTION
The trial court erred by instructing the jury with CALJIC No. 8.66.1, which explained the notion of a “kill zone.”
DISCUSSION
Defendants contend their attempted murder convictions must be reversed because CALJIC No. 8.66.1 contains an impermissible mandatory presumption regarding intent to kill. This claim is meritless.
The trial court instructed the jury on CALJIC No. 8.66.1 as follows: “A person who primarily intends to kill one person, may also concurrently . . . intend to kill other persons within a particular zone of risk. This zone of risk is 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 it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim’s vicinity. [¶] Whether the perpetrator actually intended to kill the victim, either as a primary target or someone within the ‘kill zone’ or zone of risk[,] is an issue for you to decide.”
“California cases that have affirmed convictions requiring the intent to kill persons other than the primary target can be considered ‘kill zone’ cases even though they do not employ that term. In People v. Vang (2001) 87 Cal.App.4th 554, 563-565 . . ., the defendants shot at two occupied houses. The Court of Appeal affirmed attempted murder charges as to everyone in both houses – 11 counts – even though the defendants may have targeted only one person at each house. ‘The jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up. . . . The fact they could not see all of their victims did not somehow negate their express malice or intent to kill as to those victims who were present and in harm’s way, but fortuitously were not killed.’ (Id. at pp. 563-564; see also People v. Gaither (1959) 173 Cal.App.2d 662, 666-667 . . . [defendant mailed poisoned candy to his wife; convictions for administering poison with intent to kill affirmed as to others who lived at the residence even if not a primary target].)” (People v. Bland (2002) 28 Cal.4th 313, 330.)
Jackson says he “does not dispute the legal principle that when a defendant shoots at one person in a group, the jury may infer an intent to kill others aside from the target. The problem here is that the instruction explaining the proof of the intent element contained an impermissible presumption.” He asserts “CALJIC No. 8.66.1 as given here was improperly phrased as a mandatory presumption; that is, the jury was told if it finds the predicate fact, then the inferred fact has been proven. Specifically, CALJIC No. 8.66.1 told the jury that when a defendant intends to kill one person and there are others within the zone of danger, he conclusively intends to kill the others within the zone.” (Italics added.) Jackson argues, “According to CALJIC No. 8.66.1, the jury is to infer intent to kill from the fact that someone is in the vicinity of the intended victim. This is an irrational presumption because a defendant may engage in an act intended to kill one person that carries a risk of killing others, without intending that others be killed.”
Similarly, Mitchell argues: “The erroneous presumption permitted the jury to find the intent to kill for purposes of attempted murder entirely on the victims’ presence in a zone of danger. By so doing, the jury was permitted to base guilt on implied malice . . . instead of the required express malice.” Mitchell complains “the instruction does not tell them . . . they must first reasonably find the perpetrator has an intent to kill everyone in the area. Rather, it tells them there is concurrent intent to kill non-targeted or non-primary victims where they happen to be in a zone of harm created by the perpetrator to kill an intended target.”
We are not persuaded by these arguments. CALJIC No. 8.66.1 says that if it is reasonable to infer the defendant intended to kill a victim by killing everyone in the victim’s vicinity, then the defendant possessed a concurrent intent to kill that entire group of people, i.e., the primary victim as well as the bystanders. Hence, the third sentence of the instruction given here stated that “when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim’s vicinity,” then “the [defendant’s] intent is concurrent.” This sentence does not direct the jury to infer concurrent intent merely because bystanders happened to be in the vicinity. Rather, it directs that if the jury has reasonably found the perpetrator intended to kill a primary victim by killing everyone in the area, then the perpetrator had a concurrent intent to kill both the primary victim and the bystanders. This sentence constitutes a definition, not a presumption. The fourth sentence of the instruction confirms this by advising the jury: “Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a zone of risk, is an issue to be decided by you.”
Which is why, contrary to defendants’ arguments, the instruction does not predicate liability on the mere creation of a risk to the bystanders. The instruction predicates liability on evidence a defendant intended to kill more people than just the primary target.
As explained by People v. Bland, supra, 28 Cal.4th at p 329: “The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them.” Concurrent intent exists “ ‘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. . . . Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.’ ” (Id. at pp. 329-330.)
The trial court did not err by instructing the jury with CALJIC No. 8.66.1.
DISPOSITION
The judgments are affirmed.
We concur: CROSKEY, J. ALDRICH, J.