Opinion
F076231
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. JOJO RUIZ, Defendant and Appellant.
Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF166327A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
This case arises out of a domestic dispute during which defendant Jojo Ruiz poured gasoline inside the house where he, his longtime girlfriend and their three children resided and then ignited it. Defendant's girlfriend and the three children, who had been sleeping, escaped without injury, and defendant was arrested several hours later when he returned to the scene of the fire.
Defendant was tried by jury and convicted of four counts of attempted murder (Pen. Code, §§ 187, 664) (counts 1 through 4), arson of an inhabited dwelling (§ 451, subd. (b)) (count 5), three counts of child abuse (§ 273a, subd. (a)) (counts 6 through 8), felony resisting a peace officer by means of threat or violence (§ 69, subd. (a)) (count 9), and misdemeanor battery against a cohabitant (§ 243, subd. (e)(1)) (count 10). On counts 1 through 4, the jury found true that the attempted murders were premediated, willful and deliberate (§ 189) and, on count 5, the jury found true that defendant committed arson by means of an accelerant under section 451.1, subdivision (a)(5).
All further statutory references are to the Penal Code unless otherwise specified.
Section 189 was amended effective January 1, 2019, but that amendment is not relevant to the issues raised in this appeal. (Stats. 2018, ch. 1015, § 3.)
On counts 1 through 4 (attempted murder), the trial court sentenced defendant to four terms of life in prison with the possibility of parole, with the term on count 2 to run consecutively to the term on count 1 and the terms on counts 3 and 4 to run concurrently with the term on count 1. On count 9 (resisting a peace officer), the court sentenced defendant to the upper term of three years. Sentences on counts 5 through 8 and count 10 were imposed and stayed under section 654 as follows: the upper term of eight years, plus an additional five years for the accelerant enhancement, on count 5 (arson), the upper terms of six years on counts 6 through 8 (child abuse), and a term of one year in jail on count 10 (battery).
On appeal, defendant claims that his convictions for attempted premeditated murder are unsupported by substantial evidence of intent to kill, and that the trial court erred in instructing the jury on the kill zone theory. He also requests that we conduct an independent review of the proceedings related to his motion for discovery from Deputy Giannelli's personnel file and the trial court's determination that only two items were subject to disclosure. (Evid. Code, § 1043; Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).)
Evidence Code section 1043 was amended effective January 1, 2020, but the amendment is not relevant to the issue raised on appeal. (Assem. Bill No. 1600 (2019-2020 Reg. Sess.) ch. 585, § 2.)
With the exception of his request for an independent review of the Pitchess proceedings and the trial court's related ruling, the People dispute defendant's entitlement to any relief on his claims.
As discussed herein, we reject defendant's substantial evidence challenge to his convictions for attempted premeditated murder. Further, in accordance with the California Supreme Court's recent decision in People v. Canizales (2019) 7 Cal.5th 591 (Canizales), we conclude that on the facts of this case, the kill zone theory was supported by substantial evidence and the ambiguity in CALCRIM No. 600 relating to the kill zone theory, as addressed in Canizales at pages 606-609, was not prejudicial. Finally, having conducted an independent review, we find no error with respect to either the Pitchess proceedings or the partial denial of defendant's discovery motion. The judgment is therefore affirmed.
FACTUAL SUMMARY
I. Eyewitness Testimony
A. Irene
1. Trial Testimony
Defendant's longtime girlfriend, Irene, testified that in the week preceding the fire, which occurred in November 2016, defendant was using steroids and methamphetamine, had been awake for days, and was hearing things no one else heard. Very early one morning, defendant and Irene were in the master bedroom of their small, two-bedroom house. Their three children, then ages fourteen, seven, and three years old, were asleep in the second bedroom with the door shut. Defendant and Irene were talking and playing music, and two candles were burning in the room. Irene testified that defendant was "a little upset" because she had declined to perform a sex act he requested, so she tried to distract him by coaxing him into engaging in intercourse. Irene eventually gave up and went to sleep.
Although defendant does not raise any appellate issues with respect to hallucination or voluntary intoxication, we note that the jury was instructed on hallucination and premeditation pursuant to CALCRIM No. 627 and on voluntary intoxication pursuant to CALCRIM No. 3426, and that the defense theory focused on his state of mind given his auditory hallucinations and drug use. There was no expert testimony on either issue, however, and the evidence was confined to Irene's and A.C.'s observations.
Defendant is the biological father of two of the three children, and he and Irene were raising all three children together.
Sometime later, Irene awoke to defendant shaking her and tugging on her hair. He wanted her to go outside with him, which she did not want to do because it was cold. After a back and forth exchange with defendant, Irene went out to the backyard with him through the laundry room, which was attached to their bedroom. He asked her several times if she heard anything and each time she replied no. He then asked her if she thought he was crazy. She told him no, and he said, "'Get the kids up. Get them out.'" She replied, "'What?'" and he responded in a "serious" voice, "'Get the kids up. Get them out. Get them out of the house.'" Irene described defendant as having the same look on his face that he had months earlier when he was also using steroids and he hit her across the face. She testified, "He had like a—like an evil spirit or something. I don't know how to explain that. It wasn't him, though."
Irene was worried because she did not know what was going to happen next. She testified she was concerned defendant might hit her again and she knew she needed to get the children out of the house, but she maintained she was not concerned that defendant would hurt the children. The children's bedroom was on the opposite side of the master bedroom from the laundry room, separated only by a wall with a door in it. Irene quickly went back inside the house through the laundry room and the master bedroom to the children's room. She woke the children, starting with her teenaged daughter, and picked up the youngest child. Defendant had followed Irene back into the house and was in the master bedroom as she woke the children. Irene heard a sound like water falling coming from the master bedroom.
Carrying the youngest child, Irene and the other two children exited the house through the bathroom that connected the children's bedroom to the living room in the front of the house. Irene testified that defendant was still inside the house at that time. Once they were outside the gate in the front yard, Irene turned and saw something glowing through the window. She denied telling Captain Stinnett that she saw any flames as they ran out the front door, and she said she might have told him she saw the glow of the candle in their bedroom.
Irene and the children sought shelter at a neighbor's house across the street. Irene told the neighbor, Nancy, to call 911 because their house was on fire. She also told Nancy that defendant ran back inside the house to put out the fire. Nancy called 911 and although Irene denied she spoke with anyone on the phone that night, her testimony was contradicted by evidence of the call, which demonstrated that first Nancy and then Irene spoke to the dispatcher. Within minutes of the call, the fire department arrived. Through the window, Irene saw defendant standing in front of the house watching it burn and then saw him drive off in his vehicle after speaking with firefighters. At no point did he check on his family or make any attempt to contact them. Defendant eventually returned and parked in front of Nancy's house, leading to his arrest.
2. Statements to Law Enforcement
Irene was interviewed separately on the morning of the fire by Deputy Giannelli with the Kern County Sheriff's Department and Captain Stinnett with the Kern County Fire Department. Deputy Giannelli testified that during their unrecorded interview, Irene told him she awoke to the sound of liquid being poured on the floor inside and she smelled something like gasoline, but rolled over like she was sleeping. She then felt defendant grab her hair and pull her outside. She said she was concerned for her children inside because of the gasoline smell and she went back inside to get them out. Irene told Deputy Giannelli that the liquid was ignited while they were still inside the house, but they were able to get out through the front door. Irene stated she did not see anyone start the fire and she mentioned defendant's use of steroids being a possible factor.
Captain Stinnett was the lead arson investigator assigned to this case.
Captain Stinnett recorded his interview with Irene and the recording was played for the jury. Irene's statement to Captain Stinnett was mostly consistent with her trial testimony, including denying that defendant would hurt the children. However, Irene told Captain Stinnett that she smelled strong fumes prior to being pulled out of bed and taken outside by defendant, and that as she was getting the children out of bed, she heard splashing in her bedroom. She also told him that as they were running through the house to get out, she saw an orange flame glowing in the kitchen or bedroom and her teenaged daughter stated, "'[I]t's on fire.'"
B. A.C.
1. Trial Testimony
A.C., defendant's and Irene's daughter, was 15 years old at the time of trial. She testified that on the morning of the fire, she and her younger sister, A.R., were asleep in one bed and her younger brother, J.C., was asleep in another bed in the same room. The door between the children's bedroom and their parents' bedroom was open so A.C. was able to see into her parents' room. She testified she woke to the sound of her parents arguing. A.C. saw defendant reach for Irene's head, grab a fistful of her hair and force her outside by her hair. Irene was upset. They stayed outside for five to ten minutes and A.C., who was fully awake, heard them talking.
Irene then came into the children's bedroom to check on them. A.C. saw and heard defendant walking around pouring gasoline on the master bedroom floor from the can her grandfather kept around to fill lawn equipment and vehicles. A.C. testified that as she was getting up, Irene was panicking and yelling, "'Get up. Your dad is pouring gasoline on the floor.'" Irene grabbed A.C.'s younger sister and, along with A.C.'s brother, they ran through the attached bathroom into the living room and out the front door. While still in the house, A.C. saw a glow through the kitchen doorway that she thought was getting brighter, but she did not see the fire start and she did not recall seeing flames.
The group fled across the street to their neighbor's house. A.C. looked back at their house and saw flames and sparks in the back. As they were knocking on their neighbor's door, A.C. saw defendant get in his vehicle. After firefighters arrived, A.C. saw defendant speak with them from inside his vehicle and then drive away. A.C. testified she was scared she was going to get burned, but denied she feared for her life or felt her life was in danger. She stated she did not remember telling Captain Stinnett that Irene feared defendant was going to come after them, that she felt her life was in danger or that she thought defendant was going to harm them.
2. Statements to Law Enforcement
Captain Stinnett interviewed A.C. and her recorded interview was played for the jury. A.C. stated she awoke to see defendant pulling Irene's hair. The two went outside and A.C. said, "[T]hen my mom ran in and then she seen my dad pour gasoline and then she got scared. So ... she woke all of us up and then told us to go outside." Captain Stinnett did not recall A.C. telling him that defendant told her to go back to sleep after she heard him pouring gasoline and Stinnett was "pretty sure" she did not. Captain Stinnett also did not recall A.C. saying anything about matches, although he recalled hearing something about it.
No matches were found at the scene, but defendant had a lighter in his possession.
II. Neighbor's Testimony
A. Trial Testimony
Nancy lived across the street from defendant and Irene and was familiar with the family. At approximately 3:00 a.m., Irene and her children knocked on Nancy's door very upset. When she answered, Irene said, "'The house is on fire. [Defendant] started it on fire and we need to have someplace to go [that is] safe.'"
Nancy asked where defendant was, and Irene stated he was sitting in his vehicle. She told Nancy, "'He woke me up, pulled me out by my hair and ... then told me, "Bitch, go back in and get your fucking kids."'" Nancy testified that Irene said she saw defendant splashing gasoline on the floor, and she then turned over and went to sleep. When defendant subsequently woke her up and pulled her outside by her hair, the house was on fire and she went back in to get the kids out.
Nancy also testified that several times, she had to block her door to prevent Irene from going outside to defendant. Nancy said that Irene did not want the police to catch defendant and send him back to jail because he was high and not at fault.
Nancy testified that A.C. said defendant tried to kill them. She saw him splashing gasoline and he told her to go back to sleep, but she was afraid, so she turned over and pretended to be sleeping. Nancy also testified that A.C. said she saw defendant pull her mom outside by her hair, but she was afraid to move so she waited until Irene returned to get up; and that A.C. said she saw defendant throw a match after pouring the gasoline.
B. Statements to Law Enforcement
Nancy spoke with Deputy Giannelli outside her house, but her statement was not recorded. On direct examination by the defense, Deputy Giannelli acknowledged that he did not document in his report any statement by Nancy that defendant told Irene, "'Bitch, go back in and get your fucking kids.'" He also acknowledged that he did not document any statements by Nancy that A.C. said she saw defendant pouring gasoline and he told her to go back to sleep, or that she saw defendant flicking matches. He testified that his report was a summary of his interview with Nancy, however, and he could not recall whether or not Nancy made such statements to him.
III. Prior Acts of Domestic Violence
A. Irene
Irene testified that defendant committed an act of physical violence against her on one occasion and the only time she was ever afraid of defendant was during that incident, which occurred in August 2016. During that incident, defendant, who was using steroids at the time, backhanded Irene across the face. She denied she was injured and she denied he committed any other incidents of violence against her. The police came and took a report, and they spoke with defendant, but he was not arrested. Irene denied that she told responding officers there were approximately 10 prior incidents of domestic violence.
B. A.C.
A.C. testified that in 2016, she saw defendant hit Irene on the side of her head with his open hand during an argument. Both defendant and Irene were upset at the time, and defendant's act was purposeful.
C. Nancy
Nancy testified to three prior acts of domestic violence. The first one occurred five or six months before the fire. Nancy was dropping Irene off at the house where Irene and defendant previously lived. As Irene got out of Nancy's truck, defendant puffed himself up and raised his hand to Irene like he was going to hit her. He wanted to know who was inside the truck. Irene cowered behind the truck door and told him Nancy was just dropping her off.
Five or six weeks before the fire, Nancy saw defendant, who was on the porch, throw a chair at Irene, who was in the yard. The chair fell a few feet away from Irene, but did not strike her. Nancy heard defendant tell Irene she was an unfit mother and to leave.
One week before the fire, Nancy saw defendant push Irene hard, with both hands on her shoulders. Irene fell into the doorframe, and defendant told her to shut up and stay out of it. Nancy described defendant as "very angry, very deliberate."
DISCUSSION
I. Substantial Evidence Claim: Attempted Premeditated Murder
A. Standard of Review
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is 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.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio, supra, at p. 357.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.) However, "speculation, supposition and suspicion are patently insufficient to support an inference of fact." (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)
B. Elements of Premeditated Attempted Murder
Murder is an unlawful killing with express or implied malice aforethought. (§§ 187, subd. (a), 188; accord, People v. Rangel (2016) 62 Cal.4th 1192, 1220.) Attempted murder, in contrast, requires specific intent to kill, or express malice, "'and the commission of a direct but ineffectual act toward accomplishing the intended killing.'" (People v. Smith (2005) 37 Cal.4th 733, 739; accord, People v. Gonzalez (2012) 54 Cal.4th 643, 653-654.) Express malice is shown when the defendant "'either desires the victim's death, or knows to a substantial certainty that the victim's death will occur.'" (People v. Houston (2012) 54 Cal.4th 1186, 1217; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 890.) "For an attempt, the overt act must go beyond mere preparation and show that the killer is putting his or her plan into action; it need not be the last proximate or ultimate step toward commission of the crime or crimes [citation], nor need it satisfy any element of the crime [citation]." (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8; accord, People v. Garton (2018) 4 Cal.5th 485, 514.) "[E]vidence of motive is often probative of intent to kill," but it "is not required to establish intent to kill." (People v. Smith, supra, at p. 741.) Intent "may in many cases be inferred from the defendant's acts and the circumstances of the crime." (Ibid.)
Section 188 was amended effective January 1, 2019, but that amendment is not relevant to the issues raised in this appeal. (Stats. 2018, ch. 1015, § 2.)
We do not agree with defendant that the prosecutor relied on an implied malice theory to support the attempted murder charges. Defendant relies in part, and in error, on portions of the record where the prosecutor was arguing the child abuse charges.
Unlike murder, "attempted murder is not divided into degrees, but the sentence can be enhanced if the attempt to kill was committed with premeditation and deliberation." (People v. Gonzalez, supra, 54 Cal.4th at p. 654.) More than a specific intent to kill is required to support a finding of deliberation and premeditation. (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) "'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance." (Ibid.) "'The process of premeditation and deliberation does not require any extended period of time. "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." [Citations.]'" (Ibid.)
"In People v. Anderson (1968) 70 Cal.2d 15, 26-27 [(Anderson)], [the Supreme Court] reviewed earlier decisions and developed guidelines to aid reviewing courts in assessing the sufficiency of evidence to sustain findings of premeditation and deliberation. [Citation.] [The court] described three categories of evidence recurring in those cases: planning, motive, and manner of killing." (People v. Halvorsen (2007) 42 Cal.4th 379, 419-420.) "[H]owever, '[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate.'" (People v. Koontz, supra, 27 Cal.4th at p. 1081; accord, People v. Casares (2016) 62 Cal.4th 808, 824, disapproved on another ground by People v. Dalton (2019) 7 Cal.5th 166, 214.) The "guidelines are descriptive and neither normative nor exhaustive, and ... reviewing courts need not accord them any particular weight." (People v. Halvorsen, supra, at p. 420; accord, People v. Casares, supra, at p. 824.).)
C. Analysis
1. Intent to Kill
The focus of defendant's argument that his convictions are not supported by substantial evidence of intent to kill is his warning to Irene to get the children out of the house. He claims that given this warning, no rational trier of fact could have concluded, based on nothing more than his act of starting the fire, that he had the specific intent to kill all four victims. We disagree.
In support of his argument, defendant relies on People v. Belton (1980) 105 Cal.App.3d 376, in which the Court of Appeal stated that "proof of arson of an inhabited building does not itself provide the basis for an inference of attempted murder. More is needed to establish murderous intent, which cannot be presumed solely from the commission of some other crime, but which must be affirmatively proved by direct evidence or by solid inference." (Id. at p. 381.) People v. Belton is inapposite, however. In that case, the defendant set two early morning fires at a triplex owned by his ex-wife, the first of which involved an exterior porch. (Id. at pp. 378-379.) The prosecutor theorized that the defendant acted with intent to kill because he struck his ex-wife during a quarrel three months prior to the fires. (Id. at p. 380.) Yet hours before the first fire was set, the defendant and his ex-wife spent the entire day together (ibid.), and there were no "threats of personal injury, vows of vengeance, conversations about contemplated personal violence, or earlier attempts at murder" (id. at p. 381).
Here, in contrast, there was a history of domestic violence between defendant and Irene that predated the fire, and, in the days leading up to the fire, defendant was behaving strangely and using steroids, which previously led him to behave violently toward Irene. Shortly before the fire, defendant and Irene argued and he was angry at her for refusing his request to perform a sex act. In her statement to Captain Stinnett, Irene said she kept telling defendant she smelled gasoline, but he told her it was something else; and Deputy Giannelli testified that Irene heard gasoline being poured on the floor. She then went back to sleep or pretended to go back to sleep before defendant dragged her out of bed and outside to the yard by her hair.
From this evidence, a reasonable trier of fact could infer either that defendant poured some gasoline on the floor prior to dragging Irene outside by her hair or that, at a minimum, the can of gasoline, usually kept outside in the bed of a truck, was already inside at the ready. Furthermore, the trier of fact was not required to credit Irene's testimony that defendant told her to get the children out of the house in a "serious" voice and could have instead found Nancy's testimony that defendant called Irene a bitch and told her to get her "fucking kids" out of the house more credible. Thus, notwithstanding defendant's characterization of his statement as a warning evidencing his lack of intent to harm Irene and the children, a reasonable trier of fact could conclude that defendant dragged Irene outside in the cold and then sent her back inside for the children to ensure that she was wide awake and filled with fear, fully aware of what was about to happen to her and the children.
As we previously stated, we must view the evidence in the light most favorable to the prosecution. (People v. Zamudio, supra, 43 Cal.4th at p. 357.) Furthermore, a jury is neither bound by the theories argued by the prosecutor (People v. Clark (2011) 52 Cal.4th 856, 947; People v. Perez (1992) 2 Cal.4th 1117, 1126; cf. People v. Brown (2017) 11 Cal.App.5th 332, 341-342 [recognizing exception to rule where one criminal act is charged but more than one criminal act is committed, implicating the defendant's right to a unanimous jury]), nor required to agree unanimously on the theory of guilt (People v. Smith (2014) 60 Cal.4th 603, 618; People v. Russo (2001) 25 Cal.4th 1124, 1132). As addressed in further detail in part II. of the Discussion, this is not a situation where the trial court instructed the jury on alternate theories, one of which was legally erroneous. (People v. Aledamat (2019) 8 Cal.5th 1, 7-8.)
After Irene reentered the house to get the children, defendant began—or resumed—pouring gasoline on the floor of the master bedroom. While neither Irene nor A.C. saw defendant light the fire, he had a lighter on him when he returned to the scene of the fire and there is ample evidence that he lit the fire while his family was still inside the house. Irene told the 911 dispatcher that she woke the children up, saw the house was on fire and ran outside; and she told Captain Stinnett that as she was running through the bathroom, she saw either the kitchen or her bedroom on fire. Irene also told Stinnett that A.C. stated the house was on fire, and A.C. testified that she saw a glow that was getting brighter while they were still in the house.
On appeal, the People argue that defendant lit the fire, dragged Irene outside and then sent her back inside the burning house to rescue the children. This characterization of the evidence is founded on Nancy's testimony that Irene stated the house was on fire before defendant dragged her outside. That testimony was contradicted, however, by the physical evidence and the arson investigator's testimony. Had defendant lit the fire prior to dragging Irene outside, her path to the children's bedroom would certainly have been blocked by the fire, as the gasoline was concentrated in the master bedroom by the door into the children's room. The prosecutor conceded as much during closing argument. Additionally, there is no evidence anyone suffered any injuries, a further inconsistency with entering an already burning house. The evidence suggests instead that although defendant lit the fire while Irene and the children were still inside the house, he did so at some point during the time Irene was gathering the children and fleeing through the house.
Although Irene and A.C. minimized their fears at trial, their statements given the morning of the fire evidence their very real fear of perishing in the house fire started by defendant. Irene told Captain Stinnett that the look on defendant's face scared her, and that she was panicking and "freaked out" because she did not want to "burn in the house with the kids." A.C. told Captain Stinnett that she felt her life was in danger and she thought defendant was going to harm them, and that Irene thought defendant was going to come after them. A.C. also testified that Irene was in a panic while defendant was pouring gasoline on the floor. The jury's request for only readback of A.C.'s testimony suggests the jury found her testimony, in particular, credible.
Irene was a recalcitrant witness and while Nancy was not, some of her testimony was undermined by the physical evidence of the crime. As previously set forth, Nancy testified that Irene said defendant set the fire before dragging her outside, which is inconsistent with the location and magnitude of the fire. Nancy also testified that A.C. saw defendant throwing a match at the gasoline, but there were no matches recovered at the scene.
Irene's and the children's successful escape from the house unharmed did not require the jury to conclude that defendant lacked the intent to kill. (People v. Superior Court (Decker), supra, 41 Cal.4th at p. 8; accord, People v. Garton, supra, 4 Cal.5th at p. 514.) Defendant intentionally created a deadly situation. The house where the family lived, evidenced by many photos shown to the jury, was a small, older, wood-sided bungalow with two wood-paneled bedrooms separated only by a wall with a door, and defendant spread and ignited a flammable liquid while his family was inside that structure. A.C. testified that defendant spread gasoline on the floor between his and Irene's mattress and the open door leading into the children's bedroom, which Captain Stinnett's testimony corroborated based on physical evidence showing the floor was blackened up to the threshold of the door separating the rooms.
As well, the jury could have reasonably concluded that based on the shape and size of the galvanized metal gas can defendant used, it may simply have taken him longer than he anticipated to pour the gasoline over the floor, and that Irene may simply have been able to grab one child, rouse the other and escape more quickly than defendant anticipated, especially given that the house was not large and A.C. was already awake. Regardless of the reason for his family's good fortune in escaping harm, this case does not involve "a dearth of evidence" compelling the conclusion that the prosecutor failed to establish specific intent to kill. (People v. Belton, supra, 105 Cal.App.3d at p. 381.)
The galvanized metal gas can was dome shaped with a round bottom. The capped opening was on the top of the can, as was a small handle.
We also reject defendant's argument that even if his conviction for the attempted murder of Irene is supported by substantial evidence, his convictions for the attempted murders of his children is not because there is "no evidence of any history or ill-will toward them." Motive is not an element of attempted murder. (People v. Smith, supra, 37 Cal.4th at p. 741.) "[R]ather, '[m]otive describes the reason a person chooses to commit a crime,' which 'is different from a required mental state such as intent or malice.'" (People v. Thompson (2016) 1 Cal.5th 1043, 1123, quoting People v. Hillhouse (2002) 27 Cal.4th 469, 504.) Furthermore, the evidence does suggest a motive to harm the children: rage at Irene. Notably, in one of the uncharged incidents of domestic violence, Nancy heard defendant tell Irene she was an unfit mother, and Irene testified that defendant's threat of choice against her was that he was going to take the children away from her. This demonstrates defendant's past willingness to use the children as a means of hurting Irene.
2. Premeditation Allegation
The focus of defendant's argument is the intent to kill rather than the allegation of premeditation, but substantial evidence also supports the jury's special finding. Defendant brought a can of gasoline that was usually kept outside in a truck into the house, evidencing planning; he had a history of domestic violence against Irene and was angry at her prior to setting the fire, evidencing motive; and he spread and ignited a flammable liquid inside the small house, evidencing a manner of attempted killing "'so particular and exacting'" that he must have acted "'according to a "preconceived design."'" (People v. Brooks (2017) 3 Cal.5th 1, 58-59, quoting Anderson, supra, 70 Cal.2d at pp. 26-27; accord, People v. Halvorsen, supra, 42 Cal.4th at pp. 419-420.)
Accordingly, we conclude that the jury's findings that defendant committed four counts of premeditated and deliberate attempted murder are supported by sufficient evidence and we reject his substantial evidence challenge.
II. Instructional Error: Kill Zone Theory
A. Standard of Review
We review allegations of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677; People v. Thomas (2011) 52 Cal.4th 336, 356.) "If the charge as a whole is ambiguous, the question is whether there is a '"reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.'" (Middleton v. McNeil (2004) 541 U.S. 433, 437 (per curiam).) Jurors are presumed to have understood and followed the trial court's jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)
Defendant did not object to the kill zone instruction, but an objection is not required to challenge an instruction on the ground that it affects substantial rights, as defendant claims here. (§ 1259; People v. Delgado (2017) 2 Cal.5th 544, 572, fn. 15; People v. Townsel (2016) 63 Cal.4th 25, 59-60.)
B. Kill Zone Theory of Criminal Liability for Attempted Murder
"Under the common law doctrine of transferred intent, 'a person maliciously intending to kill is guilty of the murder of all persons actually killed. If the intent is premeditated, the murder or murders are first degree.' [Citation.] The doctrine does not apply to attempted murder. 'To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else.'" (People v. Souza (2012) 54 Cal.4th 90, 120, quoting People v. Bland (2002) 28 Cal.4th 313, 323-324, 328 (Bland), italics added.) However, under California law, a jury may rely on what is known as the kill zone theory to convict a defendant of the murder or attempted murder of an intended, or primary, target and the attempted murders of any unintended targets located in the zone of fatal harm. (Canizales, supra, 7 Cal.5th at pp. 596-597; Bland, supra, 28 Cal.4th at p. 329.)
In Bland, the California Supreme Court recognized that while transferred intent does not apply to attempted murder, a person who intends to kill a primary target may also be criminally liable for the attempted murder of a nontargeted individual based on concurrent intent. That is, "although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the 'kill zone.' 'The intent is concurrent ... when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity.... Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.'" (Bland, supra, 28 Cal.4th at pp. 329-330, quoting Ford v. State (1993) 625 A.2d 984, 1000, disapproved on another ground in Henry v. State (2011) 19 A.3d 944, 951-952.) The court noted, "This concurrent intent theory is not a legal doctrine requiring special jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others." (Bland, supra, at p. 331, fn. 6; accord, People v. Stone (2009) 46 Cal.4th 131, 137.)
Our high court recently revisited the kill zone theory in Canizales and recognized that "even when a jury is otherwise properly instructed on circumstantial evidence and reasonable doubt, the potential for misapplication of the kill zone theory remains troubling." (Canizales, supra, 7 Cal.5th at p. 607.) While the theory remains viable, the court concluded that "the kill zone theory for establishing the specific intent to kill required for conviction of attempted murder 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. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm." (Ibid., italics added.)
"In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (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. 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. As the Court of Appeal recently explained in People v. Medina (2019) 33 Cal.App.5th 146, 156, review granted June 19, 2019, S255373 (Medina), the kill zone theory does not apply where 'the defendant merely subjected persons near the primary target to lethal risk. Rather, in a 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.'" (Canizales, supra, 7 Cal.5th at p. 607.)
The court stated further, "We emphasize that going forward trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory. Indeed, we anticipate there will be relatively few cases in which the theory will be applicable and an instruction appropriate. Trial courts should tread carefully when the prosecution proposes to rely on such a theory, and should provide an instruction to the jury only in those cases where the court concludes there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm. The use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction." (Canizales, supra, 7 Cal.5th at p. 608.)
C. Analysis
1. Kill Zone Instruction Supported by Substantial Evidence
The Canizales case arose of out a gang-related shooting carried out in public. (Canizales, supra, 7 Cal.5th at p. 598.) The two defendants in Canizales spotted a rival gang member at an outdoor block party. (Id. at pp. 598-599, 611.) One of the defendants fired five shots at the primary target from a minimum distance of 100 feet, missing the target and the target's companion, but hitting and killing an uninvolved woman. (Id. at pp. 599-600.) The defendants were convicted of the attempted murders of their primary target and his companion, both of whom were unharmed, and the murder of the unintended victim. (Id. at p. 601.) On appeal, the California Supreme Court concluded that the kill zone theory was not supported by substantial evidence and the error in instructing the jury on the theory was prejudicial, requiring reversal of the conviction for attempting to murder the primary target's companion. (Id. at pp. 611-612.)
In Canizales, the distance at which the shots were fired, the primary target's flight after the first shot, the open location of the shooting, and evidence that "bullets were 'going everywhere,'" informed the court's conclusion "that a fact finder could not reasonably infer [the defendants] intended to create a zone of fatal harm around [the primary target] ...." (Canizales, supra, 7 Cal.5th at p. 611.) This case, however, is factually distinguishable and does not present a situation where the evidence shows that defendant intended to kill only Irene and merely endangered his children in the process. (Id. at pp. 607-608.) To the contrary, this case is more akin to an attack on a primary target through use of a weapon of mass destruction such as a bomb on an airplane, or an attack with semiautomatic gunfire or an explosive device. (Bland, supra, 28 Cal.4th at pp. 329-330, citing Ford v. State, supra, 625 A.2d at pp. 1000-1001.) To wit, defendant spread a flammable substance over the floor of a small bedroom while Irene—the primary target under the prosecution's kill zone theory—was in the next small bedroom rousing their children, who were only a few feet away from the gasoline, on the other side of an open door.
Defense counsel argued that defendant warned Irene to get the children out of the house and after waiting for his family to exit the house, he burned the house in his drug-addled state, possibly to get rid of the voices he was hearing. There is certainly evidence from which a reasonable trier of fact might have concluded that defendant lacked the intent to kill Irene, but, as discussed in the preceding section, the jury's determination that defendant acted with specific intent to kill Irene in a house fire is supported by substantial evidence. Given this determination, the act of spreading a flammable liquid in a small, confined area mere feet and an open door away from where Irene was rousing their sleeping children constitutes sufficient evidence that defendant intended to create a zone of fatal harm around Irene. Moreover, the children were necessarily within that zone of fatal harm because as defendant poured gasoline over the floor and then ignited it, Irene was with the children, first at their bedsides rousing them and then fleeing the house with them.
Under these circumstances, this case is readily distinguishable from Canizales, and we are not persuaded by defendant's claim that the kill zone theory was inapplicable here. However, it bears reiteration that "going forward[,] trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory. Indeed, ... 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.)
2. Inadequate Instruction on Kill Zone Theory
Defendant argues that assuming it was not improper to instruct the jury on the kill zone theory, CALCRIM No. 600 provided the jury with inadequate guidance on the kill zone issue, resulting in prejudice. The California Supreme Court made clear that, post-Canizales, trial courts must provide additional guidance to the jury in those cases in which the theory applies. (Canizales, supra, 7 Cal.5th at pp. 606-608.) The court stated that "when a kill zone instruction is legally warranted and in fact provided, the standard instruction should be revised to better describe the contours and limits of the kill zone theory ...." (Id. at p. 609.) Therefore, in resolving defendant's claim here, we will assume error. We conclude, however, that the kill zone instruction given in this case, although not elaborative, did not result in prejudice to defendant.
a. Procedural Background
The trial court instructed the jury on attempted murder, pursuant to CALCRIM No. 600, as follows:
"The defendant is charged in counts 1, 2, 3, and 4 with attempted murder. To prove that the defendant is guilty of attempted murder, the People must prove that, one, the defendant took at least one direct but ineffective step toward killing another person and, two, the defendant intended to kill that person.
"A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstances outside the plan had not interrupted the intent.
"A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he abandons further efforts to complete the crime or his attempt fails or is interrupted by someone or something beyond his control.
"On the other hand, if a person freely and voluntarily abandons his plans before taking a direct step toward committing the murder, then that person is not guilty of attempted murder.
"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[s] charged in counts 2, 3, and 4, the People must prove that the defendant not only
intended to kill Irene ... but also either intended to kill [A.C.] and [J.C.] and [A.R.] or intended to kill everyone in the kill zone.
"If you have reasonable doubt whether the defendant intended to kill [A.C.] and [J.C.] and [A.R.] or intended to kill Irene ... by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder charged in counts 2, 3, and 4." (Italics added.)
We agree with defendant that the jury initially struggled with the kill zone instruction, which offered little guidance to jurors. Exacerbating the matter, the parties did not focus on the kill zone theory during closing argument. Although both parties argued that specific intent to kill is a required element of attempted murder, the prosecutor only superficially addressed the kill zone theory one time during his argument and did so in a manner that almost certainly confused the jury with respect to intent. Defense counsel did not mention the theory at all during her closing argument.
The prosecutor described a situation in which a gang member targets a rival in a crowd of people and argued, "In that situation, the shooter, maybe he wasn't intending to kill everyone in that group. He just wanted to kill that person. But because all those other people are in the kill zone, he actually can be charged with murder or attempted murder of everyone in that kill zone, and he can be convicted of that." This argument conflated murder and attempted murder, and the concepts transferred intent and concurrent intent, misstating the law in the process. (Canizales, supra, 7 Cal.5th at pp. 602-603; Bland, supra, 28 Cal.4th at pp. 327-328.)
Following readback of A.C.'s testimony in response to its first note, the jury reported in a second note that it had reached a verdict on counts 5 through 10, but it was unable to reach a verdict on counts 1 through 4, which were the attempted murder counts. In the presence of the jury, the trial court addressed possible actions it might take to assist the jury in resolving its impasse and then directed the foreperson to determine, if possible, whether there was a specific issue the court might assist with. Subsequently, the jury sent a third note stating:
"We would like to know more about the location of the wife & children when the fire started. We would also like to know more about the kill zone and if we [feel] like he tried to kill the wife but the kids were also in the house. [H]ow many times did he talk about 'get the kids and get out.' [¶] [F]urther arguments on these would be ... great[.] [T]he explanation of
the law for kill zone & the scenario given differs in some [opinions]. [¶] If he intended to kill the mom but not the children would they be in the kill zone?"
In response, the trial court allowed the parties to make additional closing arguments. (§§ 1093, subd. (e), 1094; Cal. Rules of Court, rule 2.1036(b)(3); People v. Salazar (2014) 227 Cal.App.4th 1078, 1088-1091; People v. Young (2007) 156 Cal.App.4th 1165, 1171-1172.) The jury then resumed deliberation, adjourning for the day approximately five hours later. The next morning, the jury almost immediately returned verdicts convicting defendant on all 10 counts.
b. Error Harmless
As defendant recognizes, "'"[m]isdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated" in Watson.'" (People v. Beltran (2013) 56 Cal.4th 935, 955; accord, People v. Covarrubias, supra, 1 Cal.5th at p. 919.) "That standard requires us to evaluate whether the defendant has demonstrated that it is '"reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."'" (People v. Gonzalez (2018) 5 Cal.5th 186, 195.)
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
As we have discussed, Canizales contemplates more specific instruction on the kill zone going forward due to the potential for misapplication of the theory. (Canizales, supra, 7 Cal.5th at p. 607.) In Canizales, however, the court concluded that "the evidence concerning the circumstances of the attack (including the type and extent of force used by [the shooter]) was not sufficient to support a reasonable inference that [the] defendants intended to create a zone of fatal harm around a primary target." (Id. at p. 610.) Therefore, as to attempted murder of the primary target's companion, the jury was instructed on a legally erroneous alternate theory of criminal liability. (Id. at pp. 611-613.)
The court explained, "Beyond its reference to a 'particular zone of harm,' the instruction provided no further definition of the term 'kill zone.' Nor did the instruction direct the jury to consider evidence regarding the circumstances of [the] defendants' attack when determining whether [the] defendants 'intended to kill [the primary target] by killing everyone in the kill zone.'" (Canizales, supra, 7 Cal.5th at p. 613.) In addition, the prosecutor's closing argument potentially misled "the jury to believe that the mere presence of a purported victim in an area in which he or she could be fatally shot is sufficient for attempted murder liability under the kill zone theory. So misled, the jury might well have found factual support for what was effectively an 'implied malice' theory of attempted murder without detecting the legal error." (Id. at p. 614.) The court concluded, "[T]here 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 [the] defendants intended to kill [the primary target's companion] based on a legally inaccurate version of the kill zone theory—that is, that [the] defendants could be found guilty of the attempted murder of [the companion] if [the shooter fired] at [the primary target] knowing there was a substantial danger he would also hit [the target's companion]." (Ibid.)
When Canizales was decided, the California Supreme Court had not yet resolved the question of which standard of review applies when a jury is instructed on a legally erroneous alternate theory of liability and the error is of constitutional magnitude. Subsequently, the court held that the federal harmless error standard of review articulated in Chapman v. California (1967) 386 U.S. 18, 24 applies. (People v. Aledamat, supra, 8 Cal.5th at p. 13, disapproving People v. Green (1980) 27 Cal.3d 1, 69 ["[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand."].)
Critically, here the kill zone theory was factually supported and therefore, it was proper to instruct the jury on the theory. The deficiency lay in the failure to more clearly define the theory, exacerbated by a combination of the prosecutor's cursory treatment of the theory and his misstatement of the law. We inquire whether defendant has shown that it is reasonably probable a more specific instruction better defining the kill zone theory would have resulted in a more favorable outcome for him. (People v. Beltran, supra, 56 Cal.4th at p. 955; People v. Covarrubias, supra, 1 Cal.5th at p. 919.) In light of the facts in this case, specifically, attempting to kill the primary target by setting a fire in a confined area only feet away from the primary target and the non-targeted victims, and the parties' additional closing arguments that followed the jury's questions on the kill zone, we conclude the answer is no.
During the additional closing argument, the prosecutor explained, in part:
"... I just want there to be no confusion. I'm not trying to mislead you on what the law is. For attempted murder, which is what the defendant is charged with here—he is charged with four counts of attempted murder against four different victims, the wife and the three kids. He does have to intend to kill all of them.... It's not just that he was intending to kill Irene ... and then he didn't care what happened to the children. No, that wouldn't be specific intent to kill the children. Right? [¶] But what the kill zone theory is saying is that he created a zone where everyone inside that kill zone would die, and that's basically what he intended to get to Irene ...."
Defense counsel also expressly laid the following out for the jury: "[Y]ou have to look at the counts separately, each person. So you have to find a specific intent to kill Irene .... You have to find a specific intent to kill [A.C.] You have to find a specific intent to kill [J.C.] And you have to find a specific intent to kill [A.R.] For each person you need to find a specific intent to kill."
During rebuttal, the prosecutor continued, in part:
"As [defense counsel] told you multiple times, yes, it's true he has to intend to kill each and every person. And in this case, based on the circumstances, you know, we have to think about, well, who was his primary target. And this is going on the kill zone theory. And there's other theories, of course, that if you think about the fact that Nancy ... said the defendant told his daughter to go back to sleep. At one point he actually told her to go back to sleep. At that point it seems like he is intending to kill every single person. And we don't even have to get into the kill zone to establish that. Right?
"But let's say we want to go with the kill zone theory, which is an alternate theory and I think equally as valid. Then we have to consider where everyone was when he started pouring that gasoline. Because if he is targeting Irene ... and he is going to go after her, his actions weren't just directed at harming her, though. Right? Because the children were all around her. I mean, she was in that same bedroom. She was holding the baby [A.R.] at one point. The other two children were still in bed.
"So how do you get to Irene ... without getting them all, really? Right? And that's where the kill zone theory comes into play. Even if Irene ... were his only target, there is no way that he can just selectively say, well, I am sure this fire will only burn Irene ... and not everyone else. That just doesn't make any sense. [¶] ... [¶]
"So ... that's really what the kill zone theory is about .... The target might have been one person, but the intent was to kill everybody."
In sum, the parties' additional arguments sufficiently clarified the specific intent requirement and its application to the kill zone theory to cure the deficiencies in the initial closing arguments. The additional arguments also clarified the kill zone theory more generally, which had an ameliorative effect on CALCRIM No. 600.
There is no dispute that in this case, Irene was the primary target in a kill zone theory. As previously stated, and addressed by the prosecutor in further closing argument, in his attempt to kill Irene, defendant spread a flammable substance inside a confined area. Only feet away from the gasoline on the other side of an open door, Irene roused the children to flee. Given the flammability of gasoline, the confined area in which it was poured and the fact that Irene and the children were physically together in a group, and the clarifying effect of the further closing arguments, we are not persuaded that had the jury been given a more specific kill zone instruction, it is reasonably probable it would have concluded that while defendant had the specific intent to kill Irene in the fire, he acted "with only conscious disregard of the risk that [the children] may be seriously injured or killed." (Canizales, supra, 7 Cal.5th at p. 597.) Accordingly, we conclude that the absence of a more specific jury instruction on the kill zone was harmless under Watson.
3. Error Under Federal Law
Finally, defendant also argues that "CALCRIM No. 600 relies on an improper permissive presumption" and "invites—literally requires—the prosecutor to make legal arguments to the jury to explain its application." This, he contends, violated his right to due process under the federal Constitution. Guided by the following principles, we find no merit to this argument.
First, "'"before a jury can be instructed that it may draw a particular inference, evidence must appear in the record, which, if believed by the jury, will support the suggested inference."'" (People v. Clark (2016) 63 Cal.4th 522, 605, quoting People v. Valdez (2004) 32 Cal.4th 73, 137; accord, Canizales, supra, 7 Cal.5th at p. 609.) As discussed in detail, ante, we rejected defendant's claim that the kill zone was a legally incorrect theory of criminal liability on the facts of this case. Therefore, the prosecutor and defense counsel properly argued the theory's application in this case. Second, a permissive presumption is simply an inference that may be drawn from the evidence (People v. McCall (2004) 32 Cal.4th 175, 183, discussing Evid. Code, § 600, subd. (b) & Ulster County v. Allen (1979) 442 U.S. 140, 157-167), and "[p]ermissive inferences violate due process only if the permissive inference is irrational" (People v. Goldsmith (2014) 59 Cal.4th 258, 270, citing Ulster County v. Allen, supra, at pp. 157-163; accord, People v. Gomez (2018) 6 Cal.5th 243, 290). Defendant has not shown that the instruction here permitted the jury to draw any irrational inferences.
Additionally, while Canizales concluded that CALCRIM No. 600 requires revision to provide the jury with additional guidance regarding the kill zone theory (Canizales, supra, 7 Cal.5th at p. 609), we determined that any ambiguity in the instruction was harmless error under state law. To show that an ambiguous jury instruction rises to the level of federal constitutional error, defendant must demonstrate "a reasonable likelihood that the jury misunderstood or misapplied the instruction in a manner that violates the Constitution." (People v. Covarrubias, supra, 1 Cal.5th at p. 906, citing Estelle v. McGuire (1991) 502 U.S. 62, 72; accord, People v. Williams (2013) 56 Cal.4th 630, 688.) Defendant's unsupported assertion of constitutional error falls short of meeting his burden of showing an error of federal magnitude and, therefore, we reject the claim. (People v. Thompson, supra, 1 Cal.5th at p. 1097, fn. 11 ["On appeal, we assume a judgment is correct and the defendant bears the burden of demonstrating otherwise."].) III. Pitchess Review
A. Background
Defendant filed a motion seeking discovery of Deputy Giannelli's personnel records with respect to any information or documents pertaining to threats, dishonesty or excessive force. (Evid. Code, § 1043.) The prosecutor opposed the motion. The trial court conducted an in camera review of Giannelli's personnel file, granted in part and denied in part the motion, and ordered the disclosure of two responsive items.
Defendant requests we conduct an independent review of the Pitchess proceedings to ensure that the trial court complied with the procedural requirements set forth in People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229 (Mooc), and that it did not abuse its discretion as to the partial denial of his motion. The People do not oppose this request.
B. Legal Standard
The procedure for obtaining discoverable information from law enforcement personnel files is well established. Pursuant to Evidence Code section 1043, subdivision (b), "on a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both '"materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.] A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.] If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], 'the trial court should then disclose to the defendant "such information [that] is relevant to the subject matter involved in the pending litigation."'" (People v. Gaines (2009) 46 Cal.4th 172, 179.)
On appeal, a defendant may request we conduct an independent review of the proceedings and the trial court's determination regarding the presence or absence of discoverable information. (People v. Townsel, supra, 63 Cal.4th at pp. 67-68; People v. Yearwood (2013) 213 Cal.App.4th 161, 179-180.) "A trial court is afforded wide discretion in ruling on a motion for access to law enforcement personnel records. The decision will be reversed only on a showing of abuse of discretion." (People v. Yearwood, supra, at p. 180, citing People v. Hughes (2002) 27 Cal.4th 287, 330.)
C. No Abuse of Discretion
We have independently reviewed the record and examined Deputy Giannelli's personnel file. We find the trial court followed the proper procedure and created an adequate record of the in camera hearing (see Mooc, supra, 26 Cal.4th at pp. 1228-1229; People v. Yearwood, supra, 213 Cal.App.4th at p. 180), and we conclude the court did not abuse its discretion in determining that there was no information subject to disclosure beyond the two items it identified (People v. Samayoa (1997) 15 Cal.4th 795, 827). We therefore affirm the ruling.
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
SNAUFFER, J.