Opinion
A146954
09-13-2016
THE PEOPLE, Plaintiff and Appellant, v. JAMON MORTON et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. Nos. SCN223959, MCN15004693, MCN15004793)
Defendants Jamon Morton and Ravanell Young III were both charged with two counts of attempted murder based on evidence, largely consisting of video recordings, that Morton fired several shots as the two rode a dirt bike into a rival gang's territory. These recordings did not clearly depict whether the shots were fired randomly or at two men who were shown running down the street at approximately the same time. After the preliminary hearing, a magistrate concluded that probable cause was lacking to hold defendants on these charges, but the San Francisco District Attorney later filed an information that included one count of attempted murder against both defendants. Defendants then successfully moved to dismiss that count under Penal Code section 995.
All further statutory references are to the Penal Code.
On appeal, the People contend that sufficient evidence was presented to support both the charge of attempted murder and the allegation that it was willful, deliberate, and premeditated. We agree that the evidence met the relatively low standard of establishing probable cause to believe an attempted murder was committed, and we therefore reverse the order dismissing that charge. We do not address the sufficiency of the evidence to support the premeditation allegation, however, because the superior court did not rule on that issue in granting the section 995 motions.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The following facts are drawn from the evidence presented at the preliminary hearing. On February 21, 2015, at around 2:30 p.m., S.V., a resident of the Heritage Homes housing project in the Visitacion Valley neighborhood of San Francisco, heard what sounded like gunshots outside his home followed by a motorcycle driving away. Two days later, after S.V. reported the incident, San Francisco police officers responded to Heritage Homes. Their investigation focused on the block of Rey Street running roughly north to south between Rey's northern intersection with Sunnydale Avenue, a street that runs roughly east to west, and Rey's southern T-intersection with Towerside Street, a street that runs parallel to Sunnydale toward the east.
Officers discovered eight shell casings near Rey's eastern sidewalk, just south of the intersection with Sunnydale. S.V.'s vehicle, which at the time of the shooting had been parked on the western side of Rey roughly across from where the casings were found, had damage to its lower left side and a flat rear left tire. No damage to any surrounding buildings was reported or observed.
The police obtained digital video footage recorded around the time of the shooting by five of the 30 cameras in Heritage Homes's surveillance system, and those five recordings were admitted into evidence. A Heritage Homes property manager testified that he checked the system's date and time for accuracy every morning, using his clock, watch, and cell phone, and agreed that in his experience "the video equipment fairly and accurately capture[d] video images of contemporaneous acts, conditions or events as they occur." Each of the five recordings has a timestamp in the upper-left corner in military time, which we will also use for clarity of reference. We have carefully reviewed the recordings and describe them in some detail, although we recognize that our written description may convey a less complete and clear depiction of the evidence than is conveyed by the actual recordings.
The location of the first camera, channel 1, was at the intersection of Sunnydale and Rey and faced east down Sunnydale. The channel 1 recording shows the eastern half of Rey but not the entire Sunnydale-Rey intersection. At 14:31:01, a dirt bike with two men on it enters the image. Defendants do not dispute that for the purposes of this appeal there was sufficient evidence that Morton was the driver and Young was the passenger. Morton has his right arm outstretched straight from the shoulder, aiming a semiautomatic handgun roughly south down Rey, toward Towerside. Young holds the right handlebar steady with his right hand. Before the bike disappears off screen at 14:31:03 heading south on Rey, the handgun appears to dip forward and back at least twice as if being shot.
Defendants were identified based on social-media posts, surveillance footage from earlier in the day, and items found at Morton's home. After he was arrested, Morton denied being involved in the shooting and claimed that he could not go into that area because he was from a different gang's territory. Young also denied being involved in the shooting but admitted to having ridden a dirt bike with Morton before.
The location of the second camera, channel 9, was on Rey just short of its intersection with Towerside and faced southeast. At 14:30:52, a man later identified as D.F. appears onscreen, running down Rey's western sidewalk toward the Towerside intersection. About a second later, he disappears behind an outdoor stairwell, where the sidewalk appears to curve slightly west.
A second after that, at 14:30:54, a man wearing a white t-shirt and white sneakers, later identified as T.R., enters the frame following D.F.'s path down Rey's western sidewalk toward the Towerside intersection. Just before T.R. reaches the Rey-Towerside intersection, he looks over his shoulder up Rey, toward Sunnydale. He then runs behind the stairwell but can be seen peeking around it, again up Rey toward Sunnydale, at 14:30:57. He begins walking out from behind the stairwell a second later, but at 14:31:00—the same time that the dirt bike is turning onto Rey from Sunnydale—he turns around, runs back behind the stairwell, and does not appear onscreen again.
At around 14:32:00, two men, whom the magistrate concluded were D.F. and T.R., appear on the channel 1 recording walking south on Rey toward Towerside. We think it unlikely that either man was T.R., however, because neither was wearing white sneakers.
The recordings from the three other cameras provide additional context. The dirt bike is first seen traveling east down Sunnydale at 14:30:34 on a recording shot from a camera, channel 29, that was located off Sunnydale several blocks west of Rey. At 14:30:50, the bike appears on a recording from channel 5, a camera that was located on Sunnydale about two blocks west of the intersection with Rey and faced east down Sunnydale. The bike drives east down Sunnydale and can be seen turning onto Rey, again at about 14:31:00. Neither of these recordings shows any pedestrians running, down Sunnydale or otherwise, as the bike approaches the Sunnydale-Rey intersection.
The recording from the final camera, channel 7, is more difficult to decipher because it shows two different, partially obscured angles. When this recording begins at 14:31:00, it shows a man wearing a white t-shirt and white sneakers, presumably T.R., running past a driveway and disappearing off screen about a second later. Based on his movement and depending on how sharply the sidewalk curves, it appears that the camera was located near the Towerside-Rey intersection and faced roughly west across Rey. The camera then panned right to face north up Rey toward Sunnydale, where it recorded the dirt bike making a wide U-turn into Rey's western lane to head back toward Sunnydale.
Finally, the channel 5 recording shows the dirt bike heading north in the west lane of Rey beginning at 14:31:08 and turning back onto Sunnydale heading west, the same direction from which it previously came, a few seconds later, until it goes off camera at 14:31:19. The channel 29 recording shows the bike still traveling west down Sunnydale between 14:31:23 and 14:31:26, when it is last seen.
A San Francisco police sergeant testified as an expert on "criminal street gangs and gang culture in San Francisco." He explained that Down Below Gangsters, or DBG, is a street gang that operates in the Sunnydale housing projects in Visitacion Valley. Towerside, a rival gang, includes Heritage Homes in its territory. Based on evidence that is not at issue here, the sergeant opined that defendants were both active DBG gang members at the time of the shooting.
About a week after the shooting, the District Attorney filed a complaint charging both defendants with two counts of attempted murder, one count naming D.F. as the victim and the other count naming T.R. as the victim. The complaint also alleged that both attempted murders were willful, deliberate, and premeditated.
The charges were brought under sections 187, subdivision (a) and 664, and the premeditation allegation was made under section 664, subdivision (a). Defendants were also charged with other crimes and enhancements that are not at issue.
After the April 2015 preliminary hearing, the magistrate dismissed both attempted murder charges. He relied primarily on the timing of defendants' turn onto Rey and the shooting in relation to when D.F. and T.R. were running, an issue he found "crucial" given that no statements from D.F., T.R., or any other eyewitness were introduced. The magistrate observed that D.F. was first seen on camera at 14:30:52 at the Towerside-Rey intersection, a location the magistrate found to be "about 200 feet away from the intersection of Rey and Sunnydale," and that T.R. was first seen two seconds later. Believing that the channel 1 recording of defendants turning onto Rey began with a timestamp of 14:30:00 while stills of the same recording began with a timestamp of 14:31:00, and finding that the shooting began two seconds after defendants first appear on that recording, the magistrate observed that the shooting started either 50 seconds before or about 10 seconds after D.F. was first seen running. The magistrate thus concluded that "the timestamps are probably not inviolate" because the "[d]ifferent cameras . . . probably have different times." In addition, he indicated that the evidence did not support the charges because although there was some damage to S.V.'s vehicle that was consistent with "bullet strikes," those strikes were "low on the car. They're not through the windows." The magistrate did, however, find that there was sufficient evidence to hold defendants on two counts of assault with a firearm.
The following month, the District Attorney filed an information charging both defendants with one count of attempted murder of "a human being on Rey Street, between Sunnydale Avenue and Towerside" and alleging that the crime was willful, deliberate, and premeditated. Defendants moved under section 995 to dismiss the attempted murder charge, arguing that both the charge and the premeditation allegation lacked reasonable or probable cause because they were not supported by sufficient evidence. The superior court granted both motions, concluding that there was "no evidence . . . with the exception of pure speculation that [defendants were] shooting at something" and therefore no evidence of a "specific intent to kill." The court did not rule on defendants' challenge to the premeditation allegation, whose dismissal necessarily followed the dismissal of the underlying charge.
This charge was also brought under sections 187, subdivision (a) and 664, and the premeditation allegation was made under section 664, subdivision (a). Defendants were also charged with two counts of assault with a firearm under section 245, subdivision (b), as well as other crimes and enhancements that are irrelevant to this appeal.
II.
DISCUSSION
A. Legal Standards Governing Our Review.
Section 739 authorizes a district attorney to file an information charging a defendant "with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed" as long as the magistrate has not " 'made factual findings which are fatal to the asserted conclusion that the offense was committed.' " (§ 739; People v. Slaughter (1984) 35 Cal.3d 629, 639, italics omitted.) The defendant may challenge the inclusion of a charge on which he or she was not held to answer by moving to dismiss on the basis that he or she "ha[s] been committed without reasonable or probable cause." (§ 995, subd. (a)(2)(B).) " '[I]f the evidence adduced at the preliminary hearing is sufficient to support the new or additional charge,' " however, the superior court must sustain it. (People v. Barba (2012) 211 Cal.App.4th 214, 227.)
" ' " 'Reasonable or probable cause' means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. 'Reasonable and probable cause' may exist although there may be some room for doubt." ' " (People v. Mower (2002) 28 Cal.4th 457, 473.) "Thus the burden on the prosecution before the magistrate is quite distinct from that necessary to obtain a conviction before a judge or jury. . . . 'The jury must be convinced to a moral certainty and beyond a reasonable doubt of the existence of the crime charged in the information and of every essential element of that crime.' " (People v. Slaughter, supra, 35 Cal.3d at p. 637.) In contrast, although permitted to " 'weigh the evidence, resolve conflicts, and give or withhold credence to particular witnesses,' " the magistrate "does not decide whether [the] defendant committed the crime, but only whether there is ' "some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it." ' " (Ibid.; see also Gerstein v. Pugh (1975) 420 U.S. 103, 120-121 ["a probable cause determination . . . does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands"].) In short, the evidence required to " 'justify prosecution . . . need not be sufficient to support a conviction.' " (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.)
In considering a motion to dismiss a charge for which the magistrate did not hold the defendant to answer, the superior court reviews the magistrate's factual findings for substantial evidence and reviews de novo the magistrate's determination that probable cause was lacking. (People v. Bautista (2014) 223 Cal.App.4th 1096, 1101.) Although the superior court cannot "substitute its judgment as to the weight of the evidence for that of the committing magistrate[,] . . . [e]very legitimate inference that may be drawn from the evidence must be drawn in favor of the information." (People v. Hall (1971) 3 Cal.3d 992, 996.) Thus, "an information will be set aside 'only when there is a total absence of evidence to support a necessary element of the offense charged.' " (People v. Plengsangtip (2007) 148 Cal.App.4th 825, 835, some italics added, some italics omitted.) On appeal, we " 'in effect disregard[] the ruling of the superior court and directly review[] the determination of the magistrate' " using the same standards of review employed by the superior court. (Bautista, at p. 1101; see People v. Barba, supra, 211 Cal.App.4th at p. 228.)
B. We Will Assume that the Video Recordings' Timestamps Are Consistent.
Before discussing whether there is probable cause to support the attempted murder charge, we address the magistrate's conclusions about the video recordings' timestamps because the timestamps are crucial to interpreting the evidence. We conclude that, contrary to the magistrate's assessment, the evidence suggests no reason to assume that the timestamps are not consistent across the five recordings.
The magistrate's initial finding involving this issue was that there was a discrepancy between the timestamps on the channel 1 recording, which shows the dirt bike turning onto Rey, and those on the still images pulled from that recording. The District Attorney contends that this finding is unsupported by substantial evidence because both the recording and the stills show the turn begins at 14:31:00. Neither defendant argues otherwise, and we agree that there is no evidence to suggest a discrepancy in the relevant timestamps. Our review of the channel 1 recording shows a beginning timestamp of 14:31:00, not 14:30:00. Moreover, the stills are printouts from the recording, and we have been given no reason to believe the timestamps are mismatched.
Based on the unsupported finding of a discrepancy involving the channel 1 recording's timestamps, the magistrate then suggested more broadly that the different cameras on Heritage Homes's surveillance system "probably have different times." To the extent this observation constituted a finding of fact, it also lacks substantial evidence. Our review of the recordings has not revealed any other possible discrepancy between timestamps. Young claims that the recording from channel 5, which looked east down Sunnydale, shows the dirt bike turning back onto Sunnydale from Rey at 14:31:08 while the channel 1 recording never shows that turn, despite running until 14:31:10. Therefore, he claims, "it appears the clocks associated with those two cameras did not match at the critical time." The channel 1 angle shows only the eastern side of Rey, however, and the channel 5 recording shows the bike turn back onto Sunnydale from the western side of Rey. In other words, the recordings support the conclusion that the dirt bike made a wide U-turn on Rey that kept it outside channel 1's frame as it turned back onto Sunnydale.
Moreover, there is nothing in the testimony about Heritage Homes's surveillance system to support the conclusion that the cameras' times were inconsistent. The property manager testified that he checked the system's timing for accuracy every morning, and there is no indication that he performed this check or any needed adjustments on a camera-by-camera basis. In light of this testimony, and in the absence of any evidence to the contrary, the only reasonable assumption is that the timestamps are consistent.
C. Probable Cause Supported the Attempted Murder Charge.
To sustain a charge of attempted murder, there must be sufficient evidence of " 'the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' " (People v. Houston (2012) 54 Cal.4th 1186, 1217.) Only the intent element is at issue in this case. Attempted murder, unlike murder, requires a showing of express malice, a mind state that requires a defendant to have "a deliberate intention unlawfully to kill a fellow human being." (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) Evidence of "[s]uch intent must usually be derived from all the circumstances of the attempt, including the defendant's actions." (Ibid.)
The requisite intent is the primary difference between assault with a firearm, the alternative charge on which the magistrate held defendants to answer, and attempted murder by means of a firearm. (See People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1186 [assault requires awareness that act " 'would probably and directly result in the application of physical force against another' " but no " 'specific intent to cause injury' "]; see also People v. Woods (1991) 226 Cal.App.3d 1037, 1051-1053 [reversing for failure to instruct on assault with a deadly weapon where defendant convicted of attempted murder but evidence of intent to kill not "overwhelming"].)
We begin with the crucial issue of whether defendants were aware of T.R.'s presence at the time of the shooting. In framing the issue this way, we follow the parties' lead in making two assumptions whose correctness we do not decide. First, we assume that Morton's and Young's intent need not be assessed separately, and second, we assume that the evidence better supports an attempted murder of T.R. as opposed to D.F.
Initially, we observe that there is no requirement that defendants knew T.R.'s identity: "a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind," and "[a]n indiscriminate would-be killer is just as culpable as one who targets a specific person." (People v. Stone (2009) 46 Cal.4th 131, 141.) Similarly, there is no requirement that defendants thought T.R. was a rival gang member. Certainly, if any evidence had been presented to support such a conclusion, it would have strengthened the inference that defendants intended to kill T.R. But "motive is not an element of the crime of attempted murder," and intent to kill may exist even where a "defendant did not know his [or her] victims or bear them any ill will." (People v. Houston, supra, 54 Cal.4th at p. 1218.) It is clear, however, that express malice would not be demonstrated if there were insufficient evidence that defendants believed another person, whoever it might have been, was present during the shooting.
The District Attorney argues that the evidence establishes that defendants could see T.R. as they turned onto Rey. Although we do not think this evidence is as conclusive as the District Attorney suggests, we agree that it is sufficient to support an inference that defendants knew T.R. was there. As the District Attorney points out, defendants swung wide into the wrong lane, on Rey's eastern side, and they were therefore better positioned to see behind the stairwell than they would have been from the western side of the street. Thus, even after T.R. disappeared behind the stairwell on the channel 9 recording, it is possible that defendants could still see him. Moreover, although T.R. disappears from the channel 9 recording at 14:31:00, the same time the channel 1 recording that shows defendants turn onto Rey begins, the District Attorney correctly observes that the dirt bike had already traveled across about half of Rey's width. In other words, defendants pulled even with Rey's western sidewalk before 14:31:00, and it is possible they looked down Rey and saw T.R. immediately before he ducked behind the stairwell.
We are not persuaded by Young's counterarguments. He claims that the recordings "cannot be readily broken down into the fractions of a second necessary" to determine whether T.R. was in view when "the dirt bike appeared at the corner," but it is apparent without resorting to such analysis that the bike pulled even with Rey's western sidewalk before T.R. ran behind the stairwell the second time. Young also focuses on two exhibits, an aerial view of Rey and a view south down Rey from its eastern sidewalk, arguing that both strongly suggest the back of the stairwell was not in his or Morton's line of sight when defendants turned the corner. Young does not explain why the first photograph suggests defendants would not have been able to see T.R. as they drove down Sunnydale, however, and, as Young acknowledges, the photograph from the sidewalk is from an angle that defendants would not have approached until well after they began turning onto Rey.
Our conclusion that there was probable cause to believe defendants knew of T.R.'s presence is strengthened by the evidence that T.R. saw defendants as they turned onto Rey. The channel 9 recording shows T.R. peeking out from behind the stairwell, in the direction of the Sunnydale-Rey intersection, at 14:30:57. He then walks out from behind the stairwell back up Rey's western sidewalk, still looking toward Sunnydale, but at 14:31:00 he turns around and runs behind the stairwell again—just as the dirt bike is turning onto Rey. It would defy common sense to conclude that T.R. was not reacting to the bike that was simultaneously coming around the corner toward which he was looking. And if T.R. was reacting to the bike, it is reasonable to infer that he saw it and defendants, in turn, could see him.
Defendants make no serious claim that T.R. was not reacting to the dirt bike when he ran behind the stairwell a second time. Instead, they focus on the lack of evidence that they were chasing D.F. and T.R. before the bike turned onto Rey. We agree that the recordings do not reveal where D.F. and T.R. were when they began running, much less establish that defendants were pursuing them at any point before the bike reached Rey. But such facts are not necessary to establish probable cause that defendants had the intent to kill because there was sufficient evidence that defendants thought T.R. was present when shots were fired.
There is also sufficient evidence that Morton aimed the gun toward T.R. Morton argues that "there is no evidence as to where the shots were aimed," but in fact the channel 1 recording shows him aiming down Rey toward Towerside, in the same general direction as the stairwell. At least two shots appear to be fired while the gun is aimed in that direction. We agree with Young that the channel 1 recording and stills are not clear enough to show whether "[t]he aim of the gun changes slightly which is consistent with tracking a target," as the District Attorney claims is apparent. But the intent to kill can exist even if only one shot out of many fired is aimed at the victim, and even if that shot is poorly aimed: " 'The fact that the shooter may have fired only once and then abandoned his [or her] efforts out of necessity or fear does not compel the conclusion that he [or she] lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter's poor marksmanship necessarily establish a less culpable state of mind.' " (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690.)
For this reason, the location of the damage to S.V.'s vehicle has little significance. Young argues that had Morton been aiming at a person near the stairwell, Morton "certainly would have aimed much higher than at the height of a car wheel well" and at a less sharp angle. Given the number of casings found on the street, however, it is quite possible that Morton continued to shoot as the dirt bike made a U-turn on Rey, bringing the gun's aim more in line with S.V.'s vehicle. The placement of the damage might not suggest that the shot or shots causing it were fired with the intent to kill, but this does not undermine the inference that at least two shots fired earlier in the bike's turn, while Morton was still aiming down Rey toward Towerside, were fired with such intent.
Having concluded that there is sufficient evidence that defendants knew T.R. was nearby and that Morton aimed the gun in T.R.'s direction, we turn to the other major point on which the parties disagree: the distance between the dirt bike and the stairwell. The magistrate concluded that the distance between the Sunnydale-Rey and Towerside-Rey intersections was about 200 feet. The District Attorney challenges that finding, contending that the aerial photograph of Rey between Sunnydale and Towerside "shows only six parking spaces . . . from the intersection of Rey and Sunnydale to the intersection of Rey and Towerside across the street from the [stairwell] wall." It is true that there are six marked parking spaces on the east side of Rey between Sunnydale and Rey. But although the magistrate spoke in terms of the distance between the two intersections, his estimate was more precisely of the distance between the stairwell and the dirt bike at 14:31:02, when he determined that the first shot was fired. We accept that at 14:31:02 the bike was about where the first parking space on Rey's eastern side begins, but there are seven parking spaces, plus a crosswalk that is approximately the length of a parking space, before the stairwell on Rey's western side. Although 200 feet may be an overestimate of the length of about eight parking spots, we cannot conclude with certainty that it was erroneous based on our record.
Although we accept the magistrate's estimate of 200 feet, we do not agree with defendants' assessment of the significance of that distance. Defendants argue that an intent to kill is not established here because T.R. was not within range of the shooting. But there is not enough evidence in the record to permit us to determine whether T.R. was actually within range. The evidence indicates that Morton fired a semiautomatic handgun, but there was no testimony about the potential range of such a weapon. In any event, in determining whether there was probable cause to hold defendants for attempted murder, the key issue is whether they thought T.R. was within range. Even if defendants could show, which they have not, that T.R. was too far away to be at risk of being hit, "an attempt to commit a crime is a crime even if it would have been impossible for the defendant to complete the commission of the offense." (People v. Pham (2011) 192 Cal.App.4th 552, 560.) Based on our review, the distance between the dirt bike and the stairwell, while significant, was short enough to support a reasonable suspicion that defendants thought they could hit T.R. at that range.
The cases defendants rely on do not change our conclusion. Attempting to distinguish the facts here, defendants cite a number of decisions that affirmed attempted murder convictions in reliance on some variant of the principle that "[t]he act of shooting a firearm toward a victim at close range in a manner that could have inflicted a mortal wound had the shot been on target is sufficient to support an inference of an intent to kill." (People v. Houston, supra, 54 Cal.4th at pp. 1218-1219; People v. Perez (2010) 50 Cal.4th 222, 230; People v. Smith (2005) 37 Cal.4th 733, 742-743; People v. Lee (1987) 43 Cal.3d 666, 678-679.) Although we agree that the victims in these cases were located closer to their would-be murderers than T.R. was to defendants, these decisions do not hold that only a shooting from close range can support an inference of the intent to kill where other evidence of intent is lacking.
Defendants also rely on People v. Virgo (2013) 222 Cal.App.4th 788, which reversed five out of ten attempted murder convictions the defendant sustained after he fired from a house at law enforcement officers who were outside attempting to apprehend him. (Id. at pp. 790, 792-796.) Finding that there was "no doubt [the] defendant intended to kill," the Court of Appeal framed the determinative issue as whether there was substantial evidence that the defendant "fired at each of the 10 victims in a manner that could have killed them had [his] aim been more on target." (Id. at p. 799.) Three officers were positioned where they could "hear[] gunfire . . . but . . . could not tell whether the shots were being fired in their direction," and the court concluded there was therefore "no evidence that they were directly fired upon." (Id. at pp. 794-795, 800.) Another three officers saw the defendant aim at them and fire one shot in their direction, and the court concluded that this evidence supported only one conviction, not three. (Id. at pp. 795, 799.)
People v. Virgo, supra, 222 Cal.App.4th 788 does not assist defendants. First, Virgo involved multiple victims with the accompanying requirement that an intent to kill be shown as to each victim. (See id. at pp. 797-798.) Here, however, we are not faced with the task of deciding whether specific bullets were meant for specific people, and probable cause can exist so long as even one bullet was shot with the intent to kill T.R. Second, regardless of whether Virgo correctly identified the relevant element as the act, versus the intent, the decision provides little guidance on the issue of range. Virgo assumed that the officers were within range of the shooting and instead focused on whether there was sufficient evidence that the defendant aimed at each group of victims and fired enough shots to kill each member of a respective group. (See id. at pp. 799-800.) Finally, we do not read the decision's framing of the issue as whether the defendant fired "in a manner that could have killed [the victims] had [his] aim been more on target" (id. at p. 799) to imply a requirement that a completed murder must have been possible: as we have said, impossibility is not a defense to attempted murder. (People v. Pham, supra, 192 Cal.App.4th at p. 560.)
In sum, we conclude that there was sufficient evidence to support a reasonable suspicion that defendants knew T.R. was nearby, that Morton aimed toward T.R., and that defendants believed T.R. was within range of Morton's gunfire. As a result, there was sufficient evidence presented at the preliminary hearing that defendants intended to kill T.R. and probable cause to hold them on the attempted murder charge.
III.
DISPOSITION
The order granting the motions under section 995 to dismiss the attempted murder charge is reversed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.