Opinion
B266817
04-08-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN J. MIRANDA et al., Defendants and Appellants.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant Christian J. Miranda. Paul Richard Kleven, under appointment by the Court of Appeal, for Defendant and Appellant Derek J. Sommer. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on April 8, 2020 be modified as follows:
The Disposition previously read as follows:
Defendants' convictions are affirmed in full. Sommer's sentence is vacated. The matter is remanded to allow the court to resentence Sommer after considering, at a hearing at which Sommer has a right to be present with counsel, whether to exercise its discretion to strike the firearm enhancements imposed under sections 12022.5 and 12022.53.
The opinion is to be modified so that the Disposition now reads as follows:
Defendant Miranda's convictions are affirmed in full. Defendant Sommer's conviction for the attempted murder of Miranda is reversed; his other convictions are affirmed. The matter is remanded to allow the court to resentence Sommer after considering, at a hearing at which Sommer has a right to be present with counsel, whether to exercise its discretion to strike the firearm enhancements imposed under sections 12022.5 and 12022.53. The petition for rehearing is DENIED. /s/_________
WILLHITE, ACTING P. J. /s/_________
COLLINS, J. /s/_________
CURREY, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KA107796) APPEALSon remand from the Supreme Court.Affirmed in part, reversed in part, and remanded. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant Christian J. Miranda. Paul Richard Kleven, under appointment by the Court of Appeal, for Defendant and Appellant Derek J. Sommer. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Christian Miranda walked up to a man standing outside a Pomona restaurant and punched him in the face. When two of the man's friends exited their nearby car and rushed to his aid, codefendant Derek Sommer drew a gun and fired multiple shots into the group. Sommer's shots struck everyone actively involved in the fight, including Miranda. Sommer also pointed his gun but did not shoot at the punched man's third friend, Brandon, when Brandon exited the car and joined the fight.
Sommer and Miranda were tried jointly before separate juries. Sommer's jury convicted him of five counts of attempted premeditated murder, five counts of assault with a firearm, and one count of felon in possession. Miranda's jury convicted him of one count of attempted premeditated murder and one count of assault with a firearm, both as to the victim he initially punched. Both juries also found true gang and firearm enhancements.
Miranda and Sommer both challenged their convictions. We affirmed in a nonpublished opinion issued March 2, 2017. (People v. Miranda (Mar. 2, 2017, B266817) [nonpub. opn.].) We rejected both defendants' claims of insufficient evidence, concluded the court properly instructed Sommer's jury on the kill zone theory, and found that Sommer's attorney provided him with constitutionally adequate assistance. (See id.)
Both Miranda and Sommer filed petitions for review in the Supreme Court. The Supreme Court denied Miranda's petition and granted Sommer's petition on June 14, 2017. After the Supreme Court issued its opinion in People v. Canizales (2019) 7 Cal.5th 591 (Canizales), in which it clarified the circumstances under which a defendant may be convicted of attempted murder under the kill zone theory, it transferred the matter back to this court with directions to vacate our previous decision and reconsider the cause in light of Canizales.
Sommer and the Attorney General filed supplemental briefs in accordance with California Rules of Court, rule 8.200(b). They also requested oral argument, which we heard on March 17, 2020. Miranda, whose convictions have long been final, did not file a supplemental brief or participate in oral argument.
We vacate our March 2, 2017 opinion and issue this revised opinion, which addresses Sommer's supplemental arguments relating to Canizales and recently revised Penal Code sections 12022.5, subdivision (c) and 12022.53, subdivision (h) as well as the issues both defendants originally presented.
All further statutory references are to the Penal Code unless otherwise indicated.
We again affirm Miranda's convictions in full. We reverse Sommer's conviction for the attempted murder of Miranda and affirm his conviction for the attempted murder of Brandon. In light of Canizales, we conclude the jury was improperly instructed it could use the kill zone theory to find Sommer guilty of the attempted murder of Miranda.The jury reasonably could infer that Sommer merely acted with conscious disregard toward Miranda; the kill zone instruction therefore was not proper. The jury was not instructed that it could use the kill zone theory to find Sommer guilty of the attempted murder of Brandon, and we presume it followed the court's instruction. The evidence that Sommer took a direct step toward killing Brandon was sufficient to support the jury's verdict. We vacate Sommer's sentence and remand the matter so the court may resentence Sommer in accordance with this opinion and with sections 12022.5, subdivision (c) and 12022.53, subdivision (h).
PROCEDURAL HISTORY
An amended information charged Miranda and Sommer each with the attempted murders (§§ 187, subd. (a) & 664) and assaults with a firearm (§ 245, subd. (a)(2)) of victims Brandon R., Nathan R., Joanny A., and Wesley V.It further charged Sommer with the attempted murder of Miranda (§§ 187, subd. (a) & 664), assault of Miranda with a firearm (§ 245, subd. (a)(2)), and illegal possession of a firearm by a felon (§ 29800, subd. (a)(1)).The amended information alleged that each defendant or a principal committed the attempted murders willfully, deliberately, and with premeditation (§§ 189 & 664, subd. (a)), and further alleged that each attempted murder involved a principal's use of a firearm (§ 12022.53, subds. (b) & (e)(1)), intentional discharge of a firearm (§ 12022.53, subds. (c) & (e)(1)), and intentional discharge of a firearm with great bodily injury (§ 12022.53, subds. (d) & (e)(1)). The amended information also alleged that each of the crimes was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subds. (b)(1)(A) [firearm possession] & (b)(1)(C) [attempted murders and assaults]), and that Sommer personally used a firearm during the each of the assaults (§ 12022.5, subd. (a)) and suffered three prison priors (§ 667.5, subd. (b)). The priors allegations ultimately were stricken.
Pursuant to California Rules of Court, rule 8.90 (b)(4), we refer to the victims in this case by their first names to protect their personal privacy interests. No disrespect is intended.
Defendants were tried jointly before two separate juries. Sommer's jury found him guilty as charged and found true all of the enhancements and allegations except one: intentional discharge of a firearm against Brandon, who was not shot. Miranda's jury found him guilty of assaulting and attempting to murder the man he initially punched, Wesley, and found that he or a principal committed the attempted murder willfully, deliberately, and with premeditation. The trial court declared a mistrial on the remaining counts against Miranda after the jury indicated it was hopelessly deadlocked, and the prosecution later dismissed those counts.
The verdict form for that particular count only included two of the three firearms allegations: use (§ 12022.53, subds. (b) & (e)(1)) and intentional discharge (§ 12022.53, subds. (c) & (e)(1)), as no evidence was presented showing injury to Brandon.
The court sentenced Sommer to a total of 140 years to life on the five attempted premeditated murder counts and related gang and firearm enhancements, plus two years concurrent on the firearm possession count. The court imposed and stayed sentences on the five assault counts pursuant to section 654.
The court sentenced Miranda to seven years to life on the attempted premeditated murder count, plus an additional 25 years to life for the related firearm enhancement, for a total of 32 years to life. The court imposed the midterm of three years on the assault count, plus an additional 10 years for the gang enhancement; it stayed the resultant 13-year term pursuant to section 654.
Both defendants timely appealed.
FACTUAL BACKGROUND
I. Prosecution Case
Miranda also was a victim of Sommer's shooting. Miranda's testimony is discussed below, in connection with the defense case.
On October 4, 2014, Brandon, his brother, Nathan, and their friends Joanny and Wesley attended a motocross event at the Fairplex in Pomona. The group left the Fairplex around 6:30 p.m., and Brandon drove them to nearby Alberto's Restaurant in his white hatchback. As they were pulling into the restaurant's drive-through, Brandon and Wesley both noticed some people standing near an apartment complex less than 100 yards behind the restaurant. Neither Brandon nor Wesley thought much of this; Brandon testified that he did not know the people and had never had problems at Alberto's in the past.
After everyone in the car ordered their food, Brandon pulled up to the pick-up window and Wesley stepped outside the car to smoke a cigarette. Wesley stood about five feet away from the car, on the passenger side. Somewhere between 30 seconds and five minutes after Wesley started smoking, two men walked up to him. Without saying a word, one of the men punched Wesley in the face.
Brandon saw Wesley get hit. He "screamed" to Nathan and Joanny, who were in the backseat, that Wesley had been hit or punched. Nathan and Joanny immediately exited the car and rushed to Wesley's aid. Joanny testified that Wesley was on the ground, and the assailant was "bent down, kind of like on top of him." Nathan testified that he tried to pull the assailant off Wesley, and Joanny testified that he began either hitting or kicking the assailant, whom he identified in court as Miranda. Brandon testified that he saw "[e]verybody" throwing punches at one another, including the second man who had walked over with the assailant; Brandon said "they were in, like, a group, fighting." Joanny testified that the second man was standing a "[c]ouple feet away," apparently "waiting for something to go wrong his way." Joanny identified the second, standing man in court as Sommer.
As Brandon was getting out of the car to join the fray, he heard three sounds, like firecrackers with pauses in between, which he later learned were gunshots. After he heard the sounds, he saw Joanny and Wesley running toward the street and a man he identified in court as Sommer running toward the apartments. Nathan was still fighting with the man who initially punched Wesley. Brandon testified that he ran to help Nathan. Sommer came back toward the car and pointed a revolver at Brandon. Brandon "told him that I was sorry and that we don't want any more problems." Sommer did not shoot the gun; instead, he turned around. Brandon dragged Nathan away and screamed for bystanders to call 911.
None of the victims saw Sommer shoot anyone. Wesley testified that he heard five or six shots from "[n]o further than five feet" away, at which point he felt "[e]xtreme pain" and "burning" in his groin area. Once he felt the pain, he stood up, ran across the street with Joanny, and lay down in a grassy area. Wesley was airlifted to USC Medical Center; he had been shot once in the groin and three times in the buttocks. His wounds were "through and through," though bullet fragments remained in his groin at the time of trial. Wesley did not know who shot him, but he was "pretty sure" that Sommer punched him. Wesley noted that his memory of the events was "pretty fuzzy," however.
Joanny testified that he "saw Wesley up out of nowhere and running," and around the same time "felt like somebody hit me with a bat in the back of my leg." Joanny heard Wesley say he was shot, and ran across the street with Wesley. When Joanny got there, he looked down and saw that he had a bullet in his leg. Paramedics arrived and airlifted Joanny to USC Medical Center. Joanny testified that bullet fragments remained in his leg at the time of trial and were painful because "they're poking my nervous system."
Nathan testified that he did not hear any gunshots. He nevertheless was aware that he had been shot in his left forearm and left leg. He did not recall much after being shot, but remembered hearing Brandon telling him that everything would be okay, and remembered paramedics arriving on the scene. Nathan testified that he underwent two operations to remove a bullet from his leg and to put plates and screws in his arm.
B. Other Eyewitness Testimony
At around 6:40 p.m. on October 4, 2014, Michael Santos was in the drive-through at Alberto's Restaurant. As he drove around the restaurant, he saw two people jump over a fence separating the lot behind Alberto's from an apartment complex about 50 yards away. Santos thought the people were retrieving a ball or something and "didn't think anything else of it."
Santos placed his order and pulled up behind a white car that was waiting at the pick-up window. He saw a man get out of the white car and begin smoking a cigarette. About five to ten minutes later, Santos testified, "somebody from the rear of my vehicle came and punched the guy that was smoking, just randomly" without saying anything. After that, "they continued to be in a brawl." Within about 25 seconds, the smoker's friends got out of the car and "[p]unches were being tossed left and right."
Santos observed that "the person who came and punched him was starting to lose the battle." The brawl began to "migrate" toward Santos's car. When it reached the back passenger window of his car, Santos heard "about four gunshots," with breaks in between. Santos knew from the sound that the gun was a revolver. After the first "round of shots," "like two," Santos saw two of the fighters get up and run away. Santos testified that he would not recognize any of the aggressors if he saw them again.
Cinthya Lopez went to Alberto's Restaurant with her family on October 4, 2014. As her husband was pulling the car into the restaurant, she "heard a noise, kind of like a shot or firework" from the direction of the drive-through. She looked around to see what was happening and saw two people fighting one another, moving toward the back of the menu board. "Right after" she saw them, she "saw the person with the gun, and then he shot." Lopez saw one of the men fighting fall to the ground. The man who shot the gun "ran towards the back of Alberto's, going to some apartments or building that . . . was behind Alberto's place." A man at the apartments "pointed and makes some sign with his hand to go back to Alberto's." "The person that had the gun, he jumped back into Alberto's. He came running back . . . . And he had . . . the gun in his hand." At that point, Lopez told her husband to leave and called 911.
Miguel Tovar also was present at Alberto's Restaurant on October 4, 2014. He planned to get food at the drive-through, but changed his mind when he saw four or five men "[p]ushing each other and hitting each other." Tovar also saw a person with a gun standing about three feet away from the fight. Tovar heard two gunshots—one when he was pulling into the parking lot, and another after he saw the man with the gun. After the second shot, Tovar saw one of the fighters fall to the ground. He did not see the person get up. The man who fired the gun ran toward the back of the restaurant and jumped over a fence. Tovar saw the man come back over the fence and return to the Alberto's parking lot. Tovar then left the restaurant.
C. Law Enforcement Response & Investigation
Pomona police detective Jerry Uribe was dispatched to Alberto's Restaurant at around 6:42 p.m. on October 4, 2014. Upon arriving, he saw Wesley and Joanny lying on the ground across the street from the restaurant. Uribe testified that Wesley "seemed to be bleeding heavily from the groin area," and that Joanny "had a leg injury." Uribe asked Joanny who shot him, and Joanny responded that the person who did it ran behind Alberto's.
Pomona police officer Joe Hernandez testified that he was dispatched to a shooting at Alberto's Restaurant at around 6:40 p.m. on October 4, 2014. He found Nathan lying face down in the drive-through, with gunshot wounds in his leg and forearm. Paramedics were treating him.
Pomona police officer Vaneric Mendoza was dispatched to a fire station near Alberto's Restaurant around 6:44 p.m. on October 4, 2014. There he found Miranda, with a "through and through" bullet wound in his right chest. Miranda told Mendoza that he had been shot while waiting in line at Alberto's.
Pomona Police Department crime scene investigator Adam MacDonald was dispatched to Alberto's on October 4, 2014. He testified that he photographed bloodstains outside the restaurant. He further testified that he found a black baseball cap with the letter P on it at the scene. He did not find any shell casings, but testified that some guns, including revolvers, do not eject casings when they are fired.
Pomona police detectives Eric Berger and Greg Freeman were assigned to investigate the Alberto's shooting. During their investigation, Berger interviewed Sommer. Sommer told Berger that he had beaten up Miranda earlier in the day on October 4, 2014.
Freeman obtained surveillance video from the apartment complex behind Alberto's. Freeman testified that the video, which was played for the jury, showed two people jumping the fence separating the apartment complex from the vacant lot behind Alberto's just before 6:40 p.m. on October 4, 2014. Freeman showed Sommer stills from the video when he interviewed him. Freeman testified that the video showed four members of the Westside Pomona gang near the fence: Miranda, Steven Vasquez, and individuals Freeman knew as "Darky" and "Greedy." Prosecution gang expert Michael Lee testified that Greedy was Sommer's gang moniker.
Pomona police officer Alan Pucciarelli testified about an incident that happened before the shooting, on the afternoon of October 4, 2014. He testified that he was dispatched to the apartments behind Alberto's to assist with a traffic stop. The officer performing the traffic stop had detained a man named Jorge Terrazas, but needed assistance in locating another passenger who had "bailed" from the vehicle. Pucciarelli searched the apartment complex and found Miranda, who was wearing a black baseball cap with a letter P on it. Terrazas was arrested, but Miranda was not. Pucciarelli testified that he left Miranda at the apartment complex.
D. Sommer's Jail Calls
Berger testified that, at some point during the investigation of the Alberto's incident, Sommer was arrested and placed in the Pomona City Jail. While Sommer was housed at the jail, his outgoing calls were monitored and recorded. Two recordings of phone calls Sommer made to his father were played for both juries.
During the first call, made on October 13, 2014, Sommer told his father, "I'm facing attempt" in "that thing at Alberto's[, t]hose four fools that got shot." He stated, "They got all the evidence against me. I'm fucked." Sommer admitted to his father that he had a gun and told him that he already had taken the blame. He told his father that he had seen himself on a tape that "shows everything." Sommer's father told him to "[f]ight it," to which Sommer replied, "I'm not gonna' [sic] fight it. I'm guilty." Sommer nonetheless told his father that "[i]t was self defense" and explained, "we were the ones that went up there but we were the ones that ended up getting jumped. My intentions—my intentions were not to go kill. I mean, that's what I'm gonna tell them, like I'm gonna let the courts know."
Sommer also told his father that he had "a crimey" there with him, to which his father responded, "If you didn't do it, don't take the blame for it, Derek." Sommer replied, "I did it. Fucking I did it. I shot it. I shot. I shot it." Sommer's father asked him who the victims were, and Sommer said, "I don't know who the fuck they were. The other fool was bald—it was only one fool originally. He was bald and he looked like a gang member and everything."
During the second phone call, made on October 14, 2014, Sommer's father told him, "don't take the blame for someone else. Don't be a dumbass." Sommer assured him, "I'm not taking no blame for nobody but myself."
E. Miranda's Interview
Before Miranda's jury only, Freeman testified that he and Berger interviewed Miranda during the course of the investigation. The prosecution played a recording of the interview for Miranda's jury, and provided the jurors with transcripts that included translations of the Spanish portions of the interviews.
During the interview, Miranda said that "they can't accuse me of that, of what happened there, because the video shows that I didn't shoot." Miranda told the detectives that the shooter was on the video too, so they should get him. The interpreter assisting with the interview told Miranda, "They know it was your friend who shot," to which Miranda responded, "Did my friend shoot me?" The detectives told him yes. Miranda explained that one person was on top of him, fighting, when he heard a gunshot, felt pain, and saw that he was bleeding. Because he was pinned to the ground at the time, Miranda did not see who shot him. Later in the interview, he said, "in my mind, Greedy was the one that shoot me, you know? It was my friend." He also said, however, "Like, like uh he shot me too, like, what the fuck he's supposed to be my friend, you know. What the fuck?"
The detectives asked Miranda who accompanied him to Alberto's, and he told them Greedy. Miranda did not know Greedy's real name but described him as having a "WS" tattooed on his face. Miranda said that Greedy was "with West Side, and I'm not with West Side." Nevertheless, Miranda told the detectives that he was wearing a black hat with the letter P on it when he went to Alberto's; the prosecution's gang expert testified that such hats were indicative of gang affiliation.
When asked why he and Greedy went to the restaurant, Miranda explained that the man smoking a cigarette "was like looking for a problem with me." Miranda later stated that he had previously "gotten in an argument with that fool before," approximately an hour before the incident. Detective Freeman asked, "He had a problem with you?" Miranda responded, "Yeah. But, I, I . . . go fight with him, you know? But the thing is that the four guy[s] that came out, I don't know what, I don't know what happened, you know? Four guy came out [sic] the car, like." Miranda explained that Greedy "was walking . . . to defend me from the four guys, fool," a few steps behind Miranda. Miranda told the detectives that he knew Greedy took a gun with him to Alberto's and said it was a revolver, either "a .38 or a 357." Miranda did not know how many times Greedy fired the gun; he estimated two or three.
Neither defendant challenges the jury's findings on the gang enhancements or any pertinent evidentiary rulings. We accordingly limit our discussion of the gang evidence to that necessary to the issues presented in this appeal.
Pomona police officer Michael Lee testified before both juries as the prosecution's gang expert. Lee testified that West Side Pomona was one of about 10 active Pomona gangs. Lee stated that Alberto's Restaurant was within West Side's territory, and described the apartment complex behind the restaurant as "West Side Pomona's stronghold." West Side members used the letters W and S, and wore hats with Ps or Ws on them. Lee explained that hats with the letter P were not unique to the West Side Pomona gang; several gangs in Pomona used that symbol.
Lee testified that the notion of respect was "imperative" to gang culture. Gang members "will go that extra mile to be respected, whether it's assaulting innocent victims within their own city, assaulting rival gang members, [or] committing crimes within their own neighborhood." Such actions instill not only respect but fear in the community. They also help gang members "gain status within the gang." Gang members frequently commit crimes in the presence of other gang members, because "[t]hey want somebody that's going to be able to come back and vouch for them and say so-and-so committed this crime. . . . So now all the other gang members look at that member and say, oh, he's respectable."
Lee opined that Sommer was a member of West Side Pomona. Lee noted that Sommer had facial tattoos indicative of gang membership, "a W under his right eye, an S under his left." Lee further opined that Jorge Terrazas, with whom Miranda was detained on the afternoon of October 4, 2014, also was a member of West Side Pomona. Lee testified that Miranda was "at minimum" an associate of West Side Pomona, "if not a full-fledged gang member with the West Side Pomona gang." Lee opined that Miranda's residence in the laundry room of West Side Pomona's stronghold was evidence that he was "placing himself with these people on his own." "He chose to put himself in a set of circumstances where he's associating with people who are known to carry guns, known to commit violent crimes against other gang members and have violent crimes committed against them." Lee further opined that it was uncommon for gang members to accompany or "support and defend" mere associates while the latter were committing crimes. It also would be uncommon for a gang member to take full credit for a crime he committed with others; "it wouldn't benefit him to say, you know, only I did it, because it would make these guys look bad."
Lee opined that a hypothetical punching and shooting like those that occurred at Alberto's Restaurant on October 4, 2014 would have been committed for the benefit of West Side Pomona. He explained that such acts would garner respect in the community and, if "[a]n undocumented gang member goes with a documented gang member, this could be his initiation into the gang." Lee further opined that it was common within gang culture for a fistfight to escalate into a shooting. "The gang member who brings a gun to a fist fight, there's some intent to use it, whether it's, you know, they start losing the fight and they decide to bring out the gun" or merely "a complete lack of regard for human life." Lee also explained that shooting is the highest form of confrontation, and that gang members "want to be known for taking that to the next level."
II. Defense Case
Miranda testified on his own behalf before both juries. He testified that he immigrated to California from Puerto Rico approximately two years before. He recently moved into the laundry room of the apartment complex behind Alberto's because his wife kicked him out of the house for using drugs. TheP hat belonged to his brother-in-law.
Miranda testified that on October 4, 2014, he was trying to buy drugs from Terrazas when the police arrived. Miranda ran away from the police because he "didn't want to get held with drugs." The police took Terrazas to jail, but did not arrest Miranda. Shortly thereafter, a man named Steven arrived at the apartment complex. He seemed angry that the police had arrested Terrazas but not Miranda. Steven gave other people, including Sommer, permission to beat up Miranda, which they did. When the beating ended, Steven said he would kill Miranda if Miranda left the apartments before Steven figured out whether Miranda snitched on Terrazas.
Miranda accordingly found himself hanging out with Steven and some other people behind the apartment complex that evening. Miranda claimed that Steven "ordered me to go hit that guy" at the Alberto's drive-through, and he complied. Three men responded by hitting him, and he was shot while that was going on. Miranda concluded he was the first person shot "[b]ecause I had the four people in front of me," and Sommer was standing about five to six feet away. Miranda ran to a nearby fire station upon noticing he was "bleeding a lot." "[W]hen he shot me, I left and there was nobody else injured."
Miranda testified that the detectives interviewed him at the hospital, while he was under the influence of morphine. At that time, he told the detectives he punched the man at Alberto's because the man looked at him funny. Miranda testified that was a lie, but said he feared that "they"—presumably the gang members at the apartment complex—"would kill my family" if he told the detectives the truth. Miranda lied to first responder Mendozafor the same reason.
Miranda gave conflicting testimony as to whether he knew that Sommer brought a gun to Alberto's. Miranda initially testified that he had seen Sommer with a gun but did not know who had shot him. He later testified that he did not know Sommer brought a gun with him: "At that moment at Alberto's I didn't know that he had it, but I know that he always carries one in the apartments."
On cross-examination, Miranda admitted that he also lied to the detectives about having a previous altercation with Wesley. He claimed he had never punched anyone before and "didn't imagine" that Wesley would punch back, or that Wesley's friends would defend him. Miranda agreed with the prosecutor's assertion that Sommer had "tried to kill" him, and further testified, "they sent me there to punch the guy, but I think they set me up and they send him [Sommer] to get me killed." That is, he thought the members of West Side Pomona "were setting me up, you know . . . I had to do it because I felt intimidated by them." He also reiterated that he "only saw the gun after I got up and after receiving the first shot and I looked up, and I saw him [Sommer] with a gun."
Miranda also called Pomona police detective Berger to testify before both juries. The parties stipulated that Berger was an expert in the area of criminal street gangs. He opined that Miranda was an associate of West Side Pomona.
DISCUSSION
I. Miranda's Arguments
Miranda's convictions for the assault and premeditated attempted murder of Wesley are long final. We previously rejected Miranda's arguments that neither his conviction for the attempted murder of Wesley nor the finding that the attempted murder of Wesley was willful, deliberate, and premeditated was supported by substantial evidence. We largely reproduce that discussion here. We also largely reproduce here our analysis of Sommer's original arguments regarding the sufficiency of the evidence that he acted willfully, deliberately, and with premeditation, which dovetail with Miranda's.
A. Standard of Review
"'"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."[Citation.] We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."[Citation.]' [Citation.]" (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.)
B. Attempted Murder of Wesley
Miranda contends that Sommer's attempted murder of Wesley (a conviction Sommer does not challenge) was not a natural and probable consequence of Miranda's initial punch. He also argues that he lacked the intent to kill and did not directly aid and abet Sommer. We reject the former contention and need not consider the latter.
We recognize that the legal landscape surrounding the natural and probable consequences doctrine has changed significantly in the three years since our initial opinion. Most notably, the Legislature passed Senate Bill No. 1437, which took effect January 1, 2019 and amended the natural and probable consequences doctrine, "as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Senate Bill No. 1437 also added section 1170.95, which allows a person "convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts. . . ." (§ 1170.95, subd. (a).) Whether Senate Bill No. 1437 applies to attempted murder is an open question currently pending before the Supreme Court in People v. Lopez, No. S258175 (review granted Sept. 25, 2019). Also pending in People v. Lopez is the following issue: "In order to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, must a premeditated attempt to murder have been a natural and probable consequence of the target offense? In other words, should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States (2013) 50 U.S. 99 and People v. Chiu (2014) 59 Cal.4th 155?" We express no opinion on these issues.
"[U]nder the natural and probable consequences doctrine, '[a]n aider and abettor is guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commits (the nontarget crime) that is a natural and probable consequence of the target crime.' [Citation.] Moreover, '[a] consequence that is reasonably foreseeable is a natural and probable consequence under this doctrine. "A nontarget offense is a '"natural and probable consequence"' of the target offense if, judged objectively, the additional offense was reasonably foreseeable."' [Citation.] 'The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.' [Citation.] The natural and probable consequences doctrine applies equally to aiders and abettors and conspirators. [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 901.)
Miranda recognizes that "[j]urors in a number of cases have found shootings to be a foreseeable consequence of gang confrontations, and those findings have been affirmed on appeal." (People v. Ayala (2010) 181 Cal.App.4th 1440, 1449; see also People v. Gonzales (2001) 87 Cal.App.4th 1, 10.) He argues that this case is different, however, because "all that was contemplated initially was a fistfight between a low-level associate and a possible gang member," and "the intervention of [Wesley's] friends, which prompted Sommer to shoot, was unforeseen and independent of the plan to commit the assault."
This argument is not persuasive. "'Aider and abettor liability under the natural and probable consequences doctrine does not require assistance with or actual knowledge and intent relating to the nontarget offense. . . .' [Citation.] "'Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime.'" [Citation.]" (People v. Romero (2015) 62 Cal.4th 1, 42.) Even if the jury believed Miranda's testimony that he did not expect Wesley or his friends to fight back, the question it had to resolve was whether, from an objective standpoint, an attempted murder was a reasonably foreseeable consequence of Miranda's punch. There was sufficient evidence in the record to allow the jury to resolve that question affirmatively. Gang expert Lee testified that committing crimes such as assaults and shootings help members gain status in gangs, and it was common within the gang culture for a fistfight to escalate into a shooting. The jury reasonably could find that would be true here, where there was evidence that the altercation was gang-related and the initial aggressor was aware that his companion brought a gun to the scene.
Miranda nevertheless maintains that this case is more analogous to People v. Leon (2008) 161 Cal.App.4th 149 (Leon) than it is to the numerous cases holding that shootings are reasonably foreseeable consequences of gang-related assaults. In Leon, the defendant and a confederate broke into a truck. When they were confronted by the truck's owner and other eyewitnesses to the crime, who threatened to call the police, the confederate looked at the witnesses "and fired a gun in the air." (Leon, supra, 161 Cal.App.4th at pp. 153-154.) Defendant and his confederate were charged with and convicted of burglary (§ 459), attempting to dissuade a witness from reporting a crime (§ 136.1, subd. (b)(1)), and two gang-related firearms offenses (§§ 12025, subd. (b)(3), 12031, subd. (a)(1).) (Id. at p. 152.) On appeal, defendant argued and the appellate court agreed that there was insufficient evidence that witness intimidation was a natural and probable consequence of the other offenses. (Id. at pp. 159-161.) The court reasoned that there was "not a 'close connection' between any of the target crimes Leon aided and abetted, and [his confederate's] commission of witness intimidation." (Id. at p. 161.) The court recognized that "the fact that the crimes were gang related and that they were committed in a rival gang's territory clearly increased the possibility that violence would occur," but concluded that witness intimidation simply "cannot be deemed a natural and probable consequence of any of the target offenses." (Ibid.)
This case has virtually no factual similarity to Leon. Unlike the crimes of burglary and witness intimidation, the target crime of assault and the ultimate crime of attempted murder share a close connection that numerous courts have recognized. The gang-related nature of the incident here rendered the escalation of violence a near certainty, not the mere abstract possibility it was in Leon.
In short, the evidence amply supported Miranda's conviction for attempted murder under the natural and probable consequences theory. We accordingly need not address Miranda's alternative argument that a more traditional aiding and abetting theory also was not supported by sufficient evidence. (SeePeople v. Holt (1997) 15 Cal.4th 619, 671; People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
C. Willfulness, Deliberation, and Premeditation
Both defendants' juries found true an allegation that "the said defendant and or principal" attempted to murder Wesley "willfully, deliberately, and with premeditation, within the meaning of Penal Code Section 664(a)."Sommer's jury found that same allegation to be true with respect to all four of the other victims, including Miranda.Both defendants argue these findings were not supported by sufficient evidence. Miranda contends Sommer acted without deliberation and premeditation when he killed Wesley. In Miranda's view, the evidence showed Sommer did not intend to kill Wesley "until the whole group turned the tables on" Miranda, an abrupt change of circumstances that prompted Sommer to abandon his original intent to merely assault Wesley on the spur of the moment, without deliberation. Sommer joins Miranda's argument as to Wesley. He also contends there was insufficient evidence to support the jury's findings as to the other victims. He asserts that he engaged in an "unconsidered explosion of violence" rather than a "calculated design to ensure death."We disagreeas to all of the victims except Miranda, whom we do not consider here due to our reversal of that conviction.
"'"'[P]remeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.'"' [Citation.]" (People v. Potts (2019) 6 Cal.5th 1012, 1027.) "'" An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse."'[Citation.]" (Ibid.) "'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .'" (Ibid.) No extended lapse of time is required to support a finding of deliberation and premeditation. (People v. Watkins (2012) 55 Cal.4th 999, 1026.) The key inquiry is whether a rational jury could have concluded that the crime occurred as a result of preexisting reflection rather than a rash impulse. (People v. Felix (2009) 172 Cal.App.4th 1618, 1626.)
In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), the Supreme Court developed guidelines to aid reviewing courts in assessing sufficiency of the evidence to sustain findings of premeditation and deliberation. Anderson identified three categories of evidence pertinent to the analysis: those indicative of planning, motive, and manner of killing. The Anderson guidelines have been applied in the context of premeditated attempted murder. (See, e.g., People v. Lenart (2004) 32 Cal.4th 1107, 1127-1128; People v. Felix, supra, 172 Cal.App.4th at pp. 1626-1627; People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8 , overruled on other grounds in People v. Mesa (2012) 54 Cal.4th 191, 199.)Importantly, however, the Anderson guidelines are "descriptive, not normative"; they reflect the Supreme Court's effort "to do no more than catalog common factors that had occurred in prior cases." (People v. Perez (1992) 2 Cal.4th 1117, 1125.) Thus, the categories of evidence described in Anderson do not "redefine the requirements for proving premeditation and deliberation," and "do not represent an exhaustive list of evidence that could sustain a finding of premeditation and deliberation, and the reviewing court need not accord them any particular weight." (People v. Young (2005) 34 Cal.4th 1149, 1183.) The question remains whether, in light of the whole record, there was substantial evidence from which the jurors could have found that Sommer's shootings were the result of preexisting thought and the careful weighing of considerations. (People v. Boatman (2013) 221 Cal.App.4th 1253, 1270 (Boatman).)
Here, the evidence was sufficient for a jury to conclude that Sommer planned to kill, had a motive for doing so, and attacked the victims in a manner indicative of preconceived design. Sommer stated during his jail calls that the "fool" who initially caught his attention, Wesley, "looked like a gang member and everything." Alberto's Restaurant was in the heart of West Side Pomona territory, near its stronghold, and the jury could infer that Sommer was angry or felt disrespected upon seeing what appeared to be an unknown gang member in his territory. From these facts, the jury could infer motive. Sommer armed himself with a gun before walking to Alberto's with a fellow gang member or associate who had been instructed to initiate an assault on Wesley, and stepped aside to use the gun when Miranda began to lose the fight. From these facts, the jury could infer planning.
Defendants argue that the evidence showed they were taken by surprise when Wesley's friends rushed to his aid. But "[p]remeditation can be established in the context of a gang shooting even though the time between the sighting of the victim and the actual shooting is very brief." (People v. Sanchez (2001) 26 Cal.4th 834, 849.) The manner in which Sommer acted also is indicative of deliberation. He stepped back a few feet from the brawl and repeatedly shot the participants from close range. The jury could infer from Sommer's disengagement from the fistfight, his retreat mere steps away, and his pulling of the trigger numerous times that he carefully considered his actions. Though Sommer did not actually shoot Brandon, his actions in leaving the immediate scene, then returning and pointing the gun at Brandon while Brandon was assisting his bleeding brother demonstrate a calculated, considered attempt to kill.
Defendants maintain this evidence is insufficient because it is not as strong as evidence in other cases. Sommer highlights cases in which there was evidence of explicit planning by a gang member to shoot known rivals, such as repeated drive-bys (People v. Sanchez, supra, 26 Cal.4th at pp. 849-850; People v. Rand (1995) 37 Cal.App.4th 999, 1001); and cases in which the manner of killing or attempted killing—execution-style shots to the head—was more indicative of a deliberate, calculated intent to kill (People v. Romero (2008) 44 Cal.4th 386, 400-401; People v. Martinez (2003) 113 Cal.App.4th 400, 412-413).
Miranda likens this case to Boatman, 221 Cal.App.4th 1253, in which the appellate court concluded that none of the Anderson factors was satisfied where the defendant shot his girlfriend in the face during an argument in a manner that he maintained was accidental. The Boatman court noted that Boatman testified that he did not intend to kill his girlfriend (Boatman, supra, 221 Cal.App.4th at p. 1268); here, defendants note that Sommer told his father that his "intentions were not to go kill." The Boatman court also emphasized that defendant's actions after the murder—crying, calling 911, wondering aloud how he could go on with his life—were consistent with "someone horrified and distraught about what he had done, not someone who had just fulfilled a preconceived plan." (Boatman, supra, at p. 1267.)
Jury disbelief of a defendant's statements or testimony cannot, without more, support an inference "that defendant did that which he denied doing." (People v. Velazquez (2011) 201 Cal.App.4th 219, 231; Boatman, supra, 221 Cal.App.4th at p. 1267.) We reject the Attorney General's assertion to the contrary.
"[T]he facts of other cases, such as [those cited by defendants], are not particularly helpful in evaluating the sufficiency of the evidence in this case." (People v. Rundle (2008) 43 Cal.4th 76, 140, disapproved on a different ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Many cases have unique evidence and circumstances, and the divergence of facts from one case to another does not mean that one of the cases is devoid of sufficient evidence to support the jury's verdict. The evidence in this case may not have been as compelling as that in the cases defendants highlighted, or as weak as that in Boatman. It nonetheless was sufficient to allow the juries to infer that Sommer—and by extension Miranda, with regard to Wesley—acted with premeditation and deliberation.
II. Sommer's Arguments
A. Kill Zone
Sommer argues the jury should not have been instructed on the kill zone theory because the jury reasonably could have inferred that he merely endangered rather than intended to kill Miranda. We agree, and further conclude the error was prejudicial.
1. Legal Principles
"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.' [Citation.] When a single act is charged as an attempt on the lives of two or more persons, the intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be 'transferred' from one attempted murder victim to another under the transferred intent doctrine. [Citation.]" (Canizales, supra, 7 Cal.5th at p. 602.) "[T]he defendant must intend to kill the alleged victim, not someone else. . . . Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others." (People v. Bland (2002) 28 Cal.4th 313, 328 (Bland).)
While a defendant's intent to kill may not be transferred among victims, it may exist as to several victims simultaneously. This doctrine of concurrent intent is typically referred to as the kill zone theory. (Canizales, supra, 7 Cal.5th at p. 603.) Under that theory, the nature and scope of an attack directed at a primary or targeted victim "may raise an inference that the defendant '"intended to ensure harm to the primary victim by harming everyone in that victim's vicinity."'" (Canizales, supra, 7 Cal.5th at p. 602.) It has long been clear that such an inference is appropriate in situations where a defendant uses an extreme amount of force to accomplish his or her goal of killing the primary victim. The classic examples are placing a bomb on a commercial aircraft on which the primary target is a passenger, or attacking a group containing the primary target with "'automatic weapon fire or an explosive device devastating enough to kill everyone in the group.'" (Bland, supra, 28 Cal.4th at pp. 329-330.) Because the outer bounds of the doctrine remained undefined for some years, there was "potential for the misapplication of the kill zone theory" to cases where the inference was not proper. (Canizales, supra, 7 Cal.5th at p. 604.)
In Canizales, the Supreme Court clarified—and limited—the circumstances under which a prosecutor may use the kill zone theory. It held that the kill zone theory "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." (Canizales, supra, 7 Cal.5th at p. 607.) Under this standard, the kill zone theory is not applicable where "'the defendant merely subjected persons near the primary target to lethal risk'"; conscious disregard of persons proximate to the intended target is insufficient to support application of the theory. (Ibid.) In an appropriate kill zone case, "'the defendant has a primary target and reasons [that] he cannot miss that intended target if he kills everyone in the area in which the target is located. In the absence of such evidence, the kill zone instruction should not be given.'" (Ibid.) Factors relevant to the defendant's intent to create a kill zone and the scope of such a zone include "the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target." (Ibid.)
Canizales cautioned that "there will be relatively few cases in which the theory will be applicable and an instruction appropriate." (Canizales, supra, 7 Cal.5th at p. 608.) We independently review the record to determine whether it contained substantial evidence to support the instruction. (See People v. Kerley (2018) 23 Cal.App.5th 513, 565.)
2. Use in this Case
Prior to closing arguments, the court instructed Sommer's jury with CALCRIM No. 600, Attempted Murder. The court included the bracketed paragraph regarding the kill zone theory. As given, that paragraph read: "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 the attempted murder of Christian Javier Miranda, the People must prove that the defendant not only intended to kill [Joanny, Nathan, Brandon, and Wesley] but also either intended to kill Christian Javier Miranda, or intended to kill everyone within the kill zone. If you have a reasonable doubt as to whether the defendant intended to kill Christian Javier Miranda or intended to kill [Joanny, Nathan, Brandon, and Wesley] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Christian Javier Miranda." In this formulation of the instruction, Miranda was the sole victim to whom the kill zone theory applied. Brandon was identified as a primary target within the zone of fatal harm.
The prosecution relied on the kill zone theory to explain Sommer's alleged shooting of codefendant Miranda during closing argument. The prosecutor argued, "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. That's the theory regarding Mr. Miranda. The way the defendant shot with this group of people there, the number of shots he was shooting, I'm going to kill these people and I don't care who I kill. . . . He's willing to kill, intended to kill whoever's there. He didn't care whether Christian Miranda got killed or not. . . . With the others, it's more clear. With Christian Miranda, you may have to think about it a little bit more and say how many shots did he fire? How close was he? Did he really care whether Christian Miranda got killed or not?" After some deliberation, and a request for readback of Brandon's testimony, Sommer's jury submitted two questions to the court: (1) "Does the simple fact that pointing a gun [sic] qualify as a direct step," and (2) "What constitutes a kill zone only revalent [sic] counts." The court informed the jury that CALCRIM 600 addressed both issues.The court continued, "Rather than me merely repeating or trying to paraphrase those instructions, what I've decided to do is to allow the attorneys [to] address it to you in additional argument so that way they can make reference to the law, but they can also incorporate the facts as they know them into the argument."
This question appears to have concerned Brandon, at whom Sommer pointed a gun but did not shoot.
It is unclear whether the handwritten note says "counts" or "count 5." Count 5 was the count alleging the attempted murder of Miranda.
After briefly addressing the direct step question, the prosecutor made the following argument regarding the kill zone. "I wish I could say it's 10 feet or 5 feet or 20 feet. But what you have to do is think of the concept of it. The kill zone, according to the instruction, means that he intended to kill anyone within that zone. . . . [¶] Well, the conduct, first of all, you have to answer the questions yourself. How big is that zone?Well, we know where the victims were approaching. We know he shoots a couple victims that are coming from different sides of the car. We don't know precisely how close they were to each other at the time, but it would seem to me that youwouldthink that within that area. [¶] If you get someone like Brandon [R.], who wasn't shot, you have to figure out - - try to figure out, the best you can with the inferences, where he was. So you figure out where that kill zone is and, if it's relating to Brandon [R.], was he there or was he not. If the only evidence you have is that he pointed the gun and you can't say beyond a reasonable doubt that he's within the kill zone, then maybe you only have an assault with a firearm and not attempted murder. [¶]But if you look at the facts, you put Brandon in that area where he's shooting the other people, the number of shots the defendant's firing, you can conclude he was trying to kill him as well, then you have the attempted murder as well."
In his opening brief, Sommer contended this argument constituted prosecutorial misconduct."Upon further consideration," however, Sommer affirmatively abandoned this theory in his reply brief.
Sommer's counsel did not object to this argument. As to the kill zone theory, she argued, "Mr. Bean sort of gave you his view on that. Mr. Bean is the prosecutor. I will have a different view. So, again, you're getting, you know, kind of clarification from advocates, but you, the jury, now - - because you've deliberated quite a bit, so, you know, you've had a good understanding of the evidence and the instructions. And if you feel somebody was or was not within the kill zone or what is or is not a kill zone, as you know, following the instructions, looking at the evidence and the law, if you feel you are not sure, you know, that's your call to make. That's why we have reasonable doubt instructions for you. That's why we have the other instructions for you. So I really add this point, I think that - - I don't think it is for us to be able to help you. You need to help yourselves. And if there is an issue, you're not sure if it exists or not, then so be it."
The court did not revise or otherwise supplement its instructions to the jury.
3.Analysis
Sommer contends the jury should not have been instructed on the kill zone theory because there was insufficient evidence "to support a jury determination that the only reasonable inference from the circumstances of the case is that a defendant intended to kill everyone in the zone of fatal harm." We agree.
"Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory." (Canizales, supra at p. 607.) "The use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction." (Id. at p. 608.) Here, the evidence showed that Sommer and Miranda went to Alberto's together. Miranda punched Wesley, but was soon outnumbered when Nathan and Joanny rushed to Wesley's aid. Only then did Sommer pull out and use his gun, a revolver, to shoot at those fighting on the ground. The fight broke up shortly thereafter.A jury reasonably could infer from these circumstances that Sommer intended to assist Miranda, and merely showed disregard for his safety rather than an intent to kill everyone in the fight. Sommer stopped shooting and fled the scene as the victims scattered. Under Canizales, this is not enough to support a kill zone instruction.
Respondent contends that the circumstances of the attack highlighted in Canizales—"the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target"—all support a kill zone instruction here. (Canizales, supra, 7 Cal.5th at p. 607.) Respondent emphasizes that Sommer was very close to the fight, and fired up to eight shots into the small group, which consisted largely of primary targets.While these factors are relevant, they are not sufficient to warrant a kill zone instruction. Canizales introduced the list of relevant circumstances with "such as," indicating that the list is not exclusive or exhaustive. Other circumstances in this case allowed the jury to reasonably infer that Sommer merely endangered Miranda while shooting in his general direction. It is not proper to instruct on the kill zone theory "where a defendant acts with the intent to kill a primary target but with only conscious disregard of the risk that others may be seriously injured or killed." (Canizales, supra, 7 Cal.5th at p. 597.)
Sommercontends "[t]here was even less justification for allowing the jury to consider the kill zone theory in determining whether Sommer intended to kill Brandon."He points to evidence showing that Brandon was not an active participant in the fistfight until Sommer, Wesley, and Joanny scattered from the scene, and asserts that "Brandon's position on the other side of the car placed him well outside 'a zone of fatal harm.'" Sommer also contends the "jury clearly did not believe Sommer ever fired a shot at Brandon," because it found untrue the allegation that Sommer personally and intentionally discharged a firearm at Brandon.
The jury was not instructed that it could use the kill zone theory to find Sommer guilty of the attempted murder of Brandon. The kill zone instruction the court gave the jury explicitly stated that the theory could be applied only to find Sommer guilty of the attempted murder of Miranda. It identified Brandon as a primary target and informed the jury that it had to find Brandon was within the kill zone in order to apply the theory to Miranda:"If you have a reasonable doubt as to whether the defendant intended to kill Christian Javier Miranda or intended to kill [Joanny, Nathan, Brandon, and Wesley] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Christian Javier Miranda." We presume the jury followed this instruction. (People v. Potts, supra, 6 Cal.5th at p. 1037.)
Sommer relies on the prosecutor's supplemental argument for his contention that the jury was "allowed" to consider the kill zone theory to find Sommer guilty of the attempted murder of Brandon. Sommer's interpretation of the prosecutor's argument is not unreasonable. One could interpret the concluding portion of the prosecutor's remarks as inviting the jury to apply the kill zone theory to find Sommer guilty of attempting to murder Brandon. However, it is equally reasonable to interpret the prosecutor's remarks as acknowledging that the jury had to find that Brandon was within the kill zone to find Sommer guilty of the attempted murder of Miranda under the kill zone instruction, and arguing that Brandon was within the requisite area.
Either way, the court instructed the jury that the prosecutor's comments were not evidence or law, and to follow the court's instructions "[i]f you believe that the attorneys' comments on the law conflict" with them. We presume the jury followed these instructions, and further presume that "'jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.'" (People v. Potts, supra, 6 Cal.5th at p. 1037.)Additionally, "the prosecutor's argument is not the evidence we evaluate to determine whether the instruction on the kill zone theory was proper. Canizales evaluated the prosecutor's closing argument only to determine whether the error in instructing on the kill zone was prejudicial. (Canizales, supra, 7 Cal.5th at pp. 613-614.)" (People v. Cerda (2020) 45 Cal.App.5th 1, 12, fn. 18.)
Undertaking that prejudice analysis, we conclude the instructional error was prejudicial with respect to Sommer's conviction for the attempted murder of Miranda. Canizales explained, "we must ask whether there is a '"reasonable likelihood"' that the jury understood the kill zone in a legally impermissible manner. [Citations.]In doing so, we consider the instructions provided to the jury and counsels' argument to the jury." (Canizales, supra, 7 Cal.5th at p. 613.) As in Canizales, "the error here cannot be described merely as the presentation of a factually unsupported theory." (Ibid.) The instruction incorrectly told the jury it could rely on the kill zone theory to find Sommer guilty of the attempted murder of Miranda. It also lacked a definition of the term kill zone, which troubled the jury sufficiently that it asked a clarifying question. The prosecutor exclusively argued the kill zone theory as to Miranda, and asserted that the jury could apply it because Sommer "didn't care whether Christian Miranda got killed or not." The prosecutor thus "essentially equated attempted murder with implied malice murder," which is contrary to what "a proper understanding of the theory permits." (Id. at p. 614.)
These circumstances are similar to those in Canizales. Like the court there, "we conclude there that there is a reasonable likelihood that the jury understood the kill zone instruction in a legally impermissible manner. The court's error in instructing on the factually unsupported kill zone theory, combined with the lack of any clear definition of the theory in the jury instruction as well as the prosecutor's misleading argument, could reasonably have led the jury to believe that it could find that [Sommer] intended to kill [Miranda] . . . if [Sommer] shot at [the fight] knowing there was a substantial danger he would also hit [Miranda]." (Canizales, supra, 7 Cal.5th at p. 614.)
In light of this conclusion, Sommer's conviction for the attempted murder of Miranda is reversed.This reversal does not affect the conviction for the attempted murder of Brandon; the jury was not instructed it could use the kill zone theory to find Sommer guilty of that crime, and we presume it acted in accordance with the court's instructions.We need not and do not address Sommer's alternative contention regarding ineffective assistance of counsel, which he "is only raising . . . to excuse any forfeiture due to counsel's failure to object when the prosecutor changed the prosecution's entire argument on the kill zone theory by extending it to Brandon . . . ."
B. Direct Step
Sommer contended in his original brief that pointing the gun at Brandon did not constitute a direct step toward killing Brandon. We previously rejected and again reject this contention.
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Ervine (2009) 47 Cal.4th 745, 785.) A direct step is something more than mere preparation. However, "[c]onduct that qualifies as mere preparation and conduct that qualifies as a direct but ineffectual act toward the commission of the crime exist on a continuum." (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 12.) "Whether acts done in contemplation of the commission of a crime are merely preparatory or whether they are instead sufficiently close to the consummation of the crime is a question of degree and depends upon the facts and circumstances of a particular case."(Id. at p. 14.) The dividing line between making preparations and taking a direct step is crossed when, "by reason of the defendant's conduct, the situation is 'without any equivocality,' and it appears the design will be carried out if not interrupted." (Id. at 13.) "[W]hen the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is underway, and a last-minute change of heart by the perpetrator should not be permitted to exonerate him." (People v. Dillon (1983) 34 Cal.3d 441, 455, overruled on other grounds, People v. Chun (2009) 45 Cal.4th 1172, 1186.)
The Supreme Court long has recognized that "the law of attempts would be largely without function if it could not be invoked until the trigger was pulled, the blow struck, or the money seized." (People v. Dillon, supra, 34 Cal.3d at p. 455; see also People v. Nelson (2011) 51 Cal.4th 198, 212; People v. Ervine, supra, 47 Cal.4th at pp. 785-786.) "[I]t is not necessary that the overt act be the last possible step prior to the commission of the crime"—here, the trigger pull. (People v. Morales (1992) 5 Cal.App.4th 917, 926.) The record at trial supported the inference that Sommer intended to kill Brandon when he pointed the revolver at him. As Sommer acknowledged in his opening brief, evidence admitted at trial showed that "Sommer pointed a gun at Brandon R[.] when he returned from the apartment complex." When he pointed the gun at Brandon, Sommer already had fired several shots and seriously wounded all of Brandon's companions. The jury readily could infer that Sommer returned to Alberto's to finish what he and Miranda had started by shooting Brandon, particularly since Sommer positioned himself and aimed the gun in Brandon's direction. Indeed, Brandon believed that Sommer intended to shoot him and interrupted Sommer's efforts with an apology and plea for mercy. (See People v. Dillon, supra, at p. 455.) Sommer's last-second change of heart, made after Brandon pled for mercy while attempting to drag his injured brother out of harm's way, does not negate Sommer's actions up to that point; abandonment of the effort prior to completion of the crime does not compel the conclusion that the defendant lacked the intent to kill. (See People v. Smith(2005) 37 Cal.4th 733, 741.) Sommer's conviction for the attempted murder of Brandon is affirmed.
C. Remand for Resentencing
A significant portion of Sommer's lengthy sentence—140 years to life—is composed of sentence enhancements. At the time Sommer was sentenced, the trial court had no discretion to strike firearms enhancements under section 12022.5 or 12022.53. Since that time, however, the Legislature amended both enhancement provisions to afford trial courts discretion to strike or dismiss enhancement allegations in the interest of justice. (See §§ 12022.5, subd. (c), 12022.53, subd. (h).) Sommer contends we should remand for resentencing so the trial court may have the opportunity to exercise that discretion. Respondent concedes, and we agree, that the statutory amendments retroactively apply to Sommer's case, which remains nonfinal. (See, e.g., People v. Zamora (2019) 35 Cal.App.5th 200, 207-208.)Respondent contends remand is not necessary, however, because the trial court clearly indicated when it sentenced Sommer that it would not have stricken the firearm enhancements in any event.We agree with Sommer that a remand for resentencing is required.
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.'[Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
In this case, the record does not clearly indicate the trial court would have declined to strike or dismiss the firearm enhancements if it had the discretion to do so at the time of Sommer's sentencing. Although the court stated it chose not to exercise its discretion to run counts concurrently, it also struck Sommer's priors and remarked that it would "follow the basic sentencing guidelines," which at that time required it to impose the firearm enhancements on each count.Respondent points out that the court selected the middle rather than lower term on the section 12022.5 enhancements, and infers from that "there is no logical possibility the court would have chosen instead to impose zero years - by striking the enhancement."Sentencing does not occur in a vacuum, however, and the court may have made different choices on the enhancements or sentence in the aggregate if it had been aware of its discretion. We cannot conclude otherwise from the record and accordingly remand for resentencing so the court may exercise its discretion to strike the firearm enhancements if it sees fit. (See People v. McDaniels(2018) 22 Cal.App.5th 420, 448-449.) We express no opinion on how the court should exercise its discretion.
DISPOSITION
Defendants' convictions are affirmed in full. Sommer's sentence is vacated. The matter is remanded to allow the court to resentence Sommer after considering, at a hearing at which Sommer has a right to be present with counsel, whether to exercise its discretion to strike the firearm enhancements imposed under sections 12022.5 and 12022.53.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: WILLHITE, J., ACTING P.J. CURREY, J.