Opinion
B291995
04-03-2020
THE PEOPLE, Plaintiff and Respondent, v. ARNET IRVING MAYS, JR., Defendant and Appellant.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA072512) APPEAL from a judgment of the Superior Court of Los Angeles County, Shannon Knight, Judge. Reversed, in part, and remanded with directions. Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Arnet Irving Mays, Jr., appeals his convictions for the deliberate, premeditated attempted murders of Tatiyana Yarzue, Keiandra Richard, and Zakee Richardson. Mays contends insufficient evidence supported the convictions, the trial court's specific intent instruction was prejudicially erroneous, and trial counsel provided ineffective assistance by failing to object to the instructional error. We conclude substantial evidence supported the convictions, but the instructions related to the count involving Zakee were factually unsupported and legally erroneous. Because the error was prejudicial, we reverse the judgment as to that count, affirm as to the counts involving Tatiyana and Keiandra, and remand for further proceedings.
BACKGROUND
On February 10, 2017, around 10:00 a.m., Tatiyana Yarzue (Tatiyana), Keiandra Richard (Keiandra), and Zakee Richardson (Zakee) were socializing by Tatiyana's Toyota Camry near her home in Palmdale. Isaiah Yarzue (Isaiah), Tatiyana's brother, was across the street in their driveway. During an interaction with Isaiah, Tatiyana said "fuck Neighborhood," a disparaging reference to the Rollin' 90s Neighborhood Crips, a criminal street gang (Rollin' 90s). Isaiah then made a phone call, and within a few minutes Mays, an active Rollin' 90s member, pulled up in a silver Impala with two companions. When Isaiah asserted that Keiandra had said "fuck neighborhood," Mays demanded to know "who said it," and Tatiyana responded, "I said it." Mays glared at Tatiyana and Keiandra and then left in the Impala with the others. The Impala returned five minutes later, and Mays, now in the front passenger seat, dared Tatiyana to repeat the insult. When she again said "fuck neighborhood" Mays pointed a .22 caliber rifle from the window and fired one shot towards her and Keiandra. The Impala then pulled away, made a U-turn, and returned. Mays fired two more shots, one of which struck the rear window of the Camry while all three victims were inside.
We use first names of the victims for clarity.
Mays was charged with three counts of deliberate, premeditated attempted murder, shooting at an occupied motor vehicle, and assault with a firearm. (Pen. Code, §§ 245, subd. (a)(2), 246, 664, subd. (a), 187, subd. (a).) It was also alleged Mays personally used and intentionally discharged a firearm, and committed the offenses to benefit a criminal street gang. (§§ 186.22, subd. (b)(1)(C), 12022.5, 12022.53, subds. (b)-(c).)
All further statutory references are to the Penal Code unless otherwise indicated.
At trial, Tatiyana testified that Mays had "pulled the gun out [of] the window and fired a shot," and acknowledged it was "the first time [she had had] a gun pointed at [her]." She and Keiandra were standing on the street, with Keiandra "standing behind the car." Zakee was on the other side of the Camry, on the sidewalk when the first shot was fired. After making a U-turn, the Impala drove toward the Camry again, and Mays "pointed [the rifle] out [of] the window" and fired a second time. Tatiyana and Keiandra then jumped into the back of the Camry, and Zakee moved from the sidewalk to the car and got into the front seat. As the Impala passed the Camry, Tatiyana heard a third shot, and heard a bullet bounce off of her back window. Tatiyana testified she was not "able to see where the third shot came from." She remained in her car "for a little bit" until the police arrived.
Keiandra testified that Zakee had been in the front passenger seat of the Camry, not on the sidewalk. She was leaning against the back door on the street side, a few feet behind Tatiyana. She saw Mays fire one shot "[t]owards Tatiyana['s] car" where they were standing. When the shot was fired, she jumped into the backseat of the Camry and pulled Tatiyana in after her. When the Impala approached again, she poked her head up just in time to see Mays leaning from the window with the rifle directed toward the Camry. She then heard another shot, and heard a bullet bounce off the rear window. She was unable to see where the shot was fired from because her head was "down at that moment." She testified she did not know whether a third shot was fired.
Los Angeles Sheriff's Deputy Jason Viger testified that an examination of the Camry showed that a bullet had struck the middle of the rear window slightly to the right of center. Deputy Viger opined that a .22-caliber rifle was used, and that a .22-caliber round, while not high-velocity ammunition, still had the capacity to penetrate auto glass.
Los Angeles Police Officer Mark Rakitis testified as a gang expert. Officer Rakitis opined that respect is important to criminal street gangs. A person who shows disrespect to a gang could be shot or killed. A gang member who fails to retaliate for acts of disrespect would lose status in the gang. A gang member earns greater respect for violent acts of revenge. A gang member who feels disrespected but is not carrying a weapon with him could readily obtain one. Officer Rakitis opined that at the time of the shooting, Mays was an active member of the Rollin' 90s, sometimes referred to as "the Neighborhood." The statement "fuck neighborhood" was an expression of disrespect and contempt for the Rollin' 90s. In response to a hypothetical question based on the facts of the instant shooting, Rakitis opined that a gang member who leaves a location after hearing an insult, and has a weapon when he returns, likely left to retrieve the weapon. By demanding that a person repeat a disparaging statement, the gang member was effectively cautioning that imminent retaliation was possible, as if to say, Rakitis testified, "Are you sure you want to say this? Do you really want to challenge me?"
The People introduced multiple exhibits, including photographs and maps marked by prosecution witnesses, to show the location of the victims and Mays during the shooting.
Mays testified he had an alibi, and was not involved in the shooting. He also called, among others, his former employer, who suggested he had been at work the entire day of the shooting, and a memory and identification expert, who testified about eyewitness misidentification.
During closing argument, the prosecutor argued that Mays's specific intent to kill Tatiyana and Keiandra was established by his targeting them specifically, and the intent to kill Zakee could be inferred from his being "willing to kill Zakee in order to [kill the two primary targets]."
In closing, the prosecutor argued, "in order to convict the defendant of the attempted murder of Zakee [ ], I have to prove that the defendant intended to kill both Tatiyana [ ] and Keiandra [ ], but specifically intended to kill Zakee or everyone within the kill zone, so everyone standing around that car." She argued, Mays "intended to kill everyone in a particular kill zone because Zakee [ ] was standing near that car with [Tatiyana and Keiandra] and was inside the car as well. . . ." She also said the kill zone theory applied because "Zakee was there . . . standing directly next to the car and also inside . . . [and Mays] was willing to kill Zakee in order to get to Tatiyana and Keiandra," and also "we know that the two individuals at the focus of this attempted murder were Tatiyana and Keiandra. [¶] . . . [b]ut we also know [Mays] was willing to kill Zakee [ ] because he was standing there." (Italics added.)
On the issue of Mays's intent to murder Zakee, the court gave a modified version of CALCRIM No. 600, which describes the "kill-zone" theory:
"A person may intend to kill a specific victim or victims, and at the same time intend to kill everyone in a particular zone of harm or kill zone. [¶] In order to convict the defendant of attempted murder of Zakee [ ], the People must prove that the defendant not only intended to kill Tatiyana [ ] or Keiandra [ ], but also either intended to kill Zakee [ ] or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Zakee [ ] or intended to kill Tatiyana [ ] or Keiandra [ ] by killing everyone in the kill zone, then you must find the defendant not guilty of attempted murder of Zakee [ ]."
The jury convicted Mays on all counts, found the attempted murders were deliberate and premeditated, and found true the weapons and gang allegations. The trial court sentenced Mays to 105 years to life in prison.
Mays timely appealed.
DISCUSSION
A. Sufficiency of the Evidence
Mays contends the evidence was insufficient to establish the requisite intent, premeditation, or deliberation for attempted murder, in that no evidence showed where he pointed his rifle, or from what distance or angle, no one was injured, and no victim belonged to a rival gang. He argues the manner of shooting was more consistent with an impulsive assault rather than a deliberate, premeditated act. As we discuss below, we find there is substantial evidence to support a conviction of attempted, premeditated murder as to each of the three victims.
" 'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Perez (2010) 50 Cal.4th 222, 229.)
"To prove the crime of attempted murder, the prosecution must establish 'the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' " (People v. Canizales (2019) 7 Cal.5th 591, 602 (Canizales).) "Because direct evidence of a defendant's intent rarely exists, intent may be inferred from the circumstances of the crime and the defendant's acts." (People v. Sánchez (2016) 63 Cal.4th 411, 457.) " Attempted murder requires express malice, that is, the assailant either desires the victim's death, or knows to a substantial certainty that the victim's death will occur.' " (People v. Houston (2012) 54 Cal.4th 1186, 1217.) " '[T]ransferred intent' cannot serve as a basis for a finding of attempted murder." (People v. Perez, supra, 50 Cal.4th at p. 232.) "[T]he intent to kill element must be examined independently as to each alleged attempted murder victim." (Canizales, at p. 602.) Evidence of motive can be probative of specific intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 742.)
Here, substantial evidence established Mays acted with the specific intent to kill rather than just impulsively assault the victims, and took a direct but ineffectual act toward doing so. He had a motive to kill Tatiyana and Keiandra, as both had said "fuck neighborhood." Tatiyana did so directly to Mays, and Isaiah represented that Keiandra also had said it. The gang expert opined the victims' statement showed disrespect and contempt for the Rollin' 90s, which could prompt a deadly response from a member of the gang. And Mays retrieved a deadly weapon rather than responding immediately to the disrespect. A reasonable jury could infer from this evidence that Mays decided to kill both Tatiyana and Keiandra to retaliate for their disrespect of his gang. In addition, a reasonable jury could find he made a calculated decision to kill the victims prior to the shooting. He did not immediately respond to the disparaging remarks about his gang, but instead took the time to retrieve a rifle. Upon his return, Mays did not shoot immediately, but instead issued a warning to his victims and took aim before firing. He had time to carefully reconsider his chosen course of action while the Impala repositioned, but still decided to fire two more shots at his victims. Thus substantial evidence supported a reasonable conclusion that the shooting was deliberate and premeditated.
Further evidence supported a reasonable inference Mays specifically intended to kill Keiandra. Keiandra testified Mays stopped in the intersection east of the Camry and pointed the rifle towards her and Tatiyana before firing the first shot. Mays was strategically positioned in the front seat of the Impala facing the Camry. The People's trial exhibits included maps with a key for measuring distance, and photographs of the intersection where the shooting occurred. The exhibits and witness testimony, when viewed in a light most favorable to the judgment, supported a reasonable conclusion Mays was close enough to Keiandra when he fired the first time that the bullet could have inflicted a mortal wound had it been on target, which "is sufficient to support an inference of intent to kill." (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
Exhibits from trial suggested that the Impala stopped approximately 50 feet to 75 feet from Tatiyana's car.
Substantial evidence also supported a reasonable inference that Mays specifically intended to kill Tatiyana. After the first shot missed, the Impala repositioned so Mays remained facing where the Camry was parked. Keiandra testified Mays hung the rifle from the window towards the Camry as the Impala returned. Tatiyana was still on the street when Mays fired the second shot. When Tatiyana jumped into the backseat, Mays fired a third shot, hitting the rear window of the car. A reasonable juror could infer that after failing to kill Tatiyana by firing the second shot which did not hit her, Mays tried again after Tatiyana jumped inside the Camry, by firing the third shot, which did hit her car.
The evidence supported a reasonable inference that Mays specifically intended to kill Zakee as well. Keiandra had her head down in the rear seat and was unable to see from where Mays fired the last shot. Tatiyana was to her left (having entered after Keiandra) and was also unable to see the last shot. Zakee, however, was in the front passenger seat and, inferentially, within the line of fire of the final bullet, which impacted the rear window to the right of center just a few feet behind where he was sitting. A reasonable jury could infer Mays aimed the last shot at Zakee because he was the only victim visible as the Impala sped by the Camry. Deputy Viger's testimony that a .22-caliber bullet could penetrate auto glass supported a reasonable inference that the last shot could have been deadly. The foregoing circumstantial evidence was "sufficient to support an inference of intent to kill." (People v. Lashley (1991) 1 Cal.App.4th 938, 945.)
Mays contends the evidence establishing that no one was injured, and that the victims were not rival gang members, shows he lacked intent to kill. We disagree. "The fact that no one was injured does not negate an intent to kill." (People v. Medina (2019) 33 Cal.App.5th 146, 153, as modified on denial of rehg. (Apr. 16, 2019), review dismissed, cause remanded (Cal. 2019) 252 Cal.Rptr.3d 226, holding modified by Canizales.) Nor does the fact that Mays's victims were not rival gang members-Deputy Rakitis, the gang expert, testified that the statement "fuck Neighborhood" shows disrespect and contempt toward Rollin' 90s even when said by nongang members.
In sum, substantial evidence supported a reasonable inference that Mays specifically intended to kill Keiandra with the first shot, as she was nearest to him at the time. Likewise, substantial evidence supported an inference that Mays specifically intended to kill Tatiyana with the second shot, because she was still standing on the street. Finally, substantial evidence also supported a finding that Mays specifically intended to kill Zakee with the third shot, because he was the only victim visible to Mays as the Impala sped by the Camry.
B. Instructional Error
The trial court provided the jury alternative theories for finding specific intent to kill Zakee: Mays either (1) intended to kill Zakee specifically, or (2) intended to kill Tatiyana or Keiandra and also "intended to kill everyone within the kill zone." Mays contends his attempted murder convictions should be reversed because no evidence supported the trial court's kill zone theory (the second alternative), that also misstated the law on intent. We agree as to the conviction for attempted murder of Zakee only. Reversal of the convictions related to Tatiyana and Keiandra is not warranted because the jury was instructed, and the People argued, that the kill zone theory applied only to the count related to Zakee.
1. Kill-Zone Instruction
The Supreme Court recently stressed that very limited circumstances justify giving a kill-zone instruction. (Canizales, supra, 7 Cal.5th at p. 608.) The kill-zone theory of concurrent intent "may properly be applied only when a jury concludes: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm — that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death — around the primary target; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm." (Id. at p. 607.) "[W]here the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the 'kill zone') as the means of accomplishing the killing of that victim, . . . a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm." (People v. Smith (2005) 37 Cal.4th 733, 745-746.) "In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired, . . . the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target." (Canizales, at p. 607.)
Here, the trial court erred when it gave the jury a kill-zone instruction, because the circumstances of the attack were not such that the only reasonable inference was that Mays intended to create a zone of fatal harm or kill zone. (Canizales, supra, 7 Cal.5th at p. 607.) To the contrary, Mays fired just three rounds of low-velocity ammunition. He directed the first two at Tatiyana and Keiandra, who were on the other side of the Camry from Zakee. Neither hit the Camry or any of the victims. The third shot ricocheted off the Camry's rear window, hitting none of the victims. No reasonable jury could infer from these facts that Mays used a type and extent of lethal force devastating enough to kill Tatiyana and Keiandra and everyone else nearby, including Zakee. (People v. Perez, supra, 50 Cal.4th at p. 232 [giving a kill-zone instruction was error because the shooting was "not the equivalent of using an explosive device with intent to kill everyone in the area of the blast, or spraying a crowd with automatic weapon fire, a means likewise calculated to kill everyone fired upon"].)
2. Prejudice
Where, like here, the trial court instructed the jury on two alternative theories of guilt, only one of which was legally correct, "[t]he reviewing court must reverse the conviction unless, after examining the entire case, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt." (People v. Aledamat (2019) 8 Cal.5th 1, 13 [applying Chapman harmlessness test for federal constitutional error to alternative-theory instructional error].) The error may be found harmless only if " 'it is clear beyond a reasonable doubt that a reasonable jury would have rendered the same verdict absent the error.' " (Canizales, supra, 7 Cal.5th at p. 615.)
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
Applying Chapman, this instructional error was not harmless because, due to the error, the jury could have found defendant guilty of the attempted murder of Zakee based on a legally inadequate kill-zone theory. The trial court's instruction did not define the phrase "kill zone" beyond saying it was a "particular zone of harm." It also failed to inform the jury that it should consider specific evidence regarding the circumstances of the shooting when determining whether Mays intended to create a kill zone. (Canizales, supra, 7 Cal.5th at p. 613.) In closing argument, the prosecutor urged the jury to infer the requisite specific intent to kill from evidence that Mays "was willing to kill Zakee" because he was near the primary targets during the shooting, suggesting that implied malice could support an attempted murder conviction. The kill-zone theory, however, does not apply where a defendant acted with implied malice, that is, intended to kill a primary target "with only conscious disregard of the risk of serious injury or death for those around [the] target." (Id. at p. 607.) Making matters worse, the prosecutor also suggested that the kill-zone theory operated like transferred intent, which is also legally incorrect.
Respondent contends the attempted murder convictions may not be reversed because Mays failed to provide specific argument regarding prejudice. We disagree. It is the People's burden to show harmlessness where, like here, there was federal constitutional error. (People v. Jackson (2014) 58 Cal.4th 724, 748; Chapman, supra, 386 U.S. at p. 24 ["the beneficiary of a constitutional error [has the burden] to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained"].)
The prosecutor told the jury, "This is the kill zone. It's specifically designed for cases, in my opinion, like this because you have situations where you may have a target or two targets in an area where there are other bystanders. And so the law says that it can -- there is this thing called transferred intent with the intent to kill applies to everyone in that kill zone."
Although the prosecution presented evidence from which the jury could have concluded that Mays specifically intended to kill Zakee with the third shot, it is not clear beyond a reasonable doubt that the jury necessarily did so conclude, rather than inferring specific intent under the legally invalid kill-zone theory the prosecutor described. In fact, no evidence showed that Mays knew Zakee at all, much less had any motive to kill him. Zakee did not testify at trial. No other witness testified that Mays fired at him. The trial court's factually unsupported instruction lacking any clear explanation regarding how the kill-zone theory may properly be applied, combined with the prosecutor's misleading argument, could readily have led the jury to convict Mays based on the prosecution's erroneous kill-zone theory. (Canizales, supra, 7 Cal.5th at pp. 613-614.)
The prosecutor argued, in part, "I'm not going to try to argue to you that [Mays] thought about Zakee more than the fact that he was willing to kill anyone standing around that car or in that car when he took his actions. [¶] This is the kill zone."
Accordingly, we reverse the attempted murder conviction related to Zakee because it is not clear beyond a reasonable doubt that a reasonable jury would have reached the same verdict absent the error. Because we conclude the trial court prejudicially erred by giving a legally inadequate kill-zone instruction, we need not reach Mays's claim that trial counsel provided constitutionally ineffective assistance by failing to object to that instruction.
DISPOSITION
The judgment is affirmed as to the deliberate, premeditated attempted murder convictions relating to Tatiyana and Keiandra, and reversed with directions to retry Mays on the deliberate, premeditated attempted murder of Zakee only (without any kill-zone instruction or theory of liability), if the People so elect, and for resentencing.
NOT TO BE PUBLISHED
CHANEY, Acting P. J. We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------