Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA038527, Jared D. Moses, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Julio Cesar Martinez was convicted by a jury of three counts of attempted willful, deliberate and premeditated murder. The jury also found several specially alleged firearm enhancements to be true and found each of the charged offenses was committed for the benefit of a criminal street gang. On appeal Martinez contends there is insufficient evidence of express malice to support the jury’s verdict on all three counts of attempted murder. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Amended Information
Martinez was charged in an amended information with four counts of attempted murder: Count 1 (the attempted murder of Daniel Arroyo), count 2 (the attempted murder of Anthony Gonzalez), count 3 (the attempted murder of Oscar Mendoza) and count 4 (the attempted murder of Ivan Flores). It was specially alleged as to each count the crime attempted was willful, deliberate and premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) and a principal had personally and intentionally used and discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (b), (c), (d), (e)(1)). In addition, each of the offenses was alleged to have been committed for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)).
Statutory references are to the Penal Code.
For simplicity on occasion this opinion uses the shorthand phrase “to benefit a criminal street gang” to refer to crimes that, in the statutory language, are committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b).)
Martinez pleaded not guilty and denied each of the special allegations.
2. The Trial
According to the evidence at trial, Martinez, his brother and several friends, including Martinez’s girlfriend and their infant child, had been driving in a blue Chevrolet Suburban on their way to pick someone up at Palmdale High School. While they were driving, the group encountered Arroyo, Gonzalez and Mendoza. Arroyo and his companions displayed gang signs and shouted “Lancas,” a reference to a criminal street gang. Someone in Arroyo’s group threw a rock at the Suburban, denting the truck. The occupants in the Suburban, including Martinez, drove away.
Soon after dropping off some of the passengers, including Martinez’s girlfriend and their baby, several men returned in the Suburban. After spotting Arroyo and his companions on the street, one of the occupants of the Suburban yelled out the window “Pacoima Van Nuys Boys,” a reference to a criminal street gang that is a rival of the Lancas gang. The driver of the Suburban drove about 75 yards past the group, positioned the truck on an angle and abruptly stopped. A passenger in the back of the Suburban, armed with a handgun, fired four or five shots out the rear passenger window; one shot struck Arroyo in the stomach. Arroyo’s companions dropped to the ground to get out of the line of fire, and the Suburban drove away. Arroyo suffered substantial injuries in the shooting but fully recovered.
The People’s theory at trial was that Martinez had been in the front passenger seat of the Suburban at the time of the shooting and, although not the shooter, had aided and abetted the attempted murders. (See People v. McCoy (2001) 25 Cal.4th 1111, 1117 [aider and abettor is liable for crime he assisted]; People v. Prettyman (1996) 14 Cal.4th 248, 261.) Martinez admitted during an interview with police officers he had been the front passenger in the Suburban at the time of the shooting but denied he had fired any shots or had known one of his fellow passengers would open fire on Arroyo or his companions. A gang detective with the Los Angeles County Sheriff’s Department, testifying as an expert witness opined, based on a hypothetical factual scenario identical to the instant case, such shootings following an altercation between rival gangs are typically carried out to benefit a criminal street gang.
3. The Verdict and Sentence
The jury found Martinez guilty of attempted murder on counts 1, 2 and 3. As to each of those counts, the jury found true the special allegation that the crime attempted was willful, deliberate and premeditated murder. In addition, as to count 1 the jury found a principal had intentionally used and discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (b), (c), (d), & (e)(1)). As to counts 2 and 3 the jury found a principal had intentionally used and discharged a firearm (§ 12022.53, subds. (b), (c), & (e)(1)). As to counts 1, 2, and 3 the jury found each of the offenses had been committed for the benefit of a criminal street gang. The jury acquitted Martinez of the offense charged in count 4.
The court sentenced Martinez to life with the possibility of parole on count 1, plus an additional 25 years to life for the firearm-use enhancement (§ 12202.53, subds. (d) & (e)(1).) On each of counts 2 and 3 Martinez was sentenced to life with the possibility of parole plus an additional 20 years for the firearm-use enhancement (§ 12022.53, subds. (c) & (e)(1)), with each of those terms to run concurrently with the term in count 1. The additional firearm-use enhancements found true by the jury were stayed.
Although the jury found the gang-enhancement allegations as to counts 1, 2 and 3 to be true, because Martinez was not the shooter, the court properly did not impose an additional gang enhancement or alternate penalty for any of those counts. (See § 12022.53, subd. (e)(2) [an enhancement for participation in a criminal street gang shall not be imposed “in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or discharged a firearm in the commission of the offense”]; People v. Brookfield (2009) 47 Cal.4th 583, 592-593.)
DISCUSSION
1. Standard of Review
To assess a claim of insufficient evidence in a criminal case, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
2. Governing Law on Attempted Murder and the Element of Express Malice
“‘The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. [Citation.]’ [Citation.] In contrast, ‘[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’” (People v. Smith (2005) 37 Cal.4th 733, 739; see also People v. Bland (2002) 28 Cal.4th 313, 327-328.) Stated somewhat differently, in order to be found guilty of attempted murder, the jury must find the defendant acted with express malice, that is, the defendant intended to cause the death of a particular victim or knew to a substantial certainty that that result would occur. (Smith, at p. 739[“[e]xpress malice requires a showing that the assailant ‘“‘either desires the result, i.e., death or knows to a substantial certainty that the result will occur’”’”], internal brackets in original omitted; Bland, at p. 328.)
3. Substantial Evidence Supports the Jury’s Attempted Murder Verdicts on Counts 1, 2 and 3
Martinez contends the evidence is insufficient to support a finding of express malice as to each of the counts because there is no evidence the shooter intended to kill any specific person in Arroyo’s group. In People v. Bland, supra, 28 Cal.4th 313, the Supreme Court reiterated the long standing doctrine that, in attempted murder cases, an intent to kill one person does not transfer to one who was not the intended target. “To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else.” (Id. at p. 328; accord, Smith, supra, 37 Cal.4th at p. 739.) Nonetheless, the Court clarified, “[t]he 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.” (Bland, at p. 329.) The Court explained its conclusion in terms of concurrent intent: 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 designated as the “kill zone.” (See id. at p. 330 [“‘when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to [kill] the primary victim by [killing] everyone in that victim’s vicinity’” the jury can reasonably infer the defendant had the concurrent intent to kill all who are within “the kill zone”].)
The trial court gave the jury a “kill zone” instruction based on the Supreme Court’s analysis in People v. Bland, supra, 28 Cal.4th 313. Without challenging the propriety of giving the instruction, Martinez asserts the kill zone inference is unfounded in this case because there is no substantial evidence the shooter intended to kill a specific primary target. The Supreme Court has recently rejected a similar argument, explaining “a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind.” (People v. Stone (2009) 46 Cal.4th 131, 140.) As the Court explained, “One of Bland’s kill zone examples involved a bomber who places a bomb on a commercial airplane intending to kill a primary target but ensuring the death of all passengers. We explained that the bomber could be convicted of the attempted murder of all the passengers. [Citation.] But a terrorist who simply wants to kill as many people as possible, and does not know or care who the victims will be, can be just as guilty of attempted murder.” (Stone, at p. 140 [a defendant may be found guilty of attempted murder when he or she fires gunshot into crowd of people with intent that somebody be killed, even if defendant did not have particular primary target in mind].) As the Court emphasized,“[A]n indiscriminate would-be killer is just as culpable as one who targets a specific person.” (Id. at p. 141.)
The court instructed the jury with CALJIC No. 8.66.1: “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 a perpetrator actually intended to kill the victim, either as a primary target or as someone within a ‘kill zone,’ is an issue to be decided by you.”
Emphasizing evidence that the Suburban drove 75 yards past Arroyo’s group before opening fire, Martinez argues that, if the shooter had intended to kill Arroyo and his companions, he would have fired at point-blank range rather than positioning himself 75 yards away. Certainly, a reasonable inference could be drawn—and the defense vigorously argued to the jury—that by driving 75 yards away from the group, the shooter only intended to scare Arroyo and his companions, not to kill them. Another reasonable inference from that evidence, however, and the one adopted by the jury, was that the men in the Suburban drove 75 yards away from Arroyo and his companions to reach a zone of protection for themselves, then positioned the truck on an angle purposely to get the best and most direct shot and opened fire with the specific intent to kill as many in the group as possible. (See, e.g., People v. Stone, supra, 46 Cal.4th pp. 140-141.) Substantial evidence supports that finding. (See People v. Zamudio, supra, 43 Cal.4th at p. 357 [reversal for insufficient evidence unwarranted unless it appears “‘“that upon no hypothesis whatever is there sufficient substantial evidence to support”’” the jury’s verdict].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON J.