Opinion
C069663
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. LOA VANG, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09F03512)
Defendant Lao Vang appeals following conviction in adult criminal court on four counts of attempted murder (Pen. Code, §§ 664/187, subd. (a)), one count of discharging a firearm at an occupied vehicle (§ 246), and four counts of assault with a semiautomatic firearm (§ 245, subd. (b)), with true findings on enhancement allegations that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and vicarious firearm use (§ 12022.53, subds. (c), (d), (e)(1)). Defendant was sentenced to 59 years to life.
Further undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
Defendant contends that: (1) the trial court misinstructed the jury on provocation that can reduce murder to manslaughter; (2) the court misinstructed the jury on the "kill zone" theory of liability for attempted murder and the instruction did not require the jury to find that defendant had the requisite specific intent to kill each victim; (3) any forfeiture of these contentions is attributable to constitutionally ineffective assistance of counsel; and (4) defendant's sentence of 59 years to life in prison for offenses committed at age 16 is the functional equivalent of a life sentence without possibility of parole, in violation of the federal constitutional prohibition against cruel and unusual punishment and the state constitutional prohibition against cruel or unusual punishment. In supplemental briefing, defendant asserts (5) that he is entitled to a remand for a transfer hearing pursuant to Proposition 57, the "Public Safety and Rehabilitation Act of 2016" (Proposition 57) and Welfare and Institutions Code section 707, subdivision (a). In another round of supplemental briefing, defendant asserts (6) that, following the enactment of Senate Bill No. 620, the matter must be remanded for the trial court to consider whether to exercise its discretion to strike the section 12022.53 firearm enhancements.
During the pendency of this appeal, defendant moved for a stay of the appeal and for a limited remand for a transfer hearing in juvenile court pursuant to Proposition 57. We denied defendant's motion, but deemed the parties' briefs on the motion to be supplemental briefing addressing Proposition 57 in the appeal from the judgment.
We conditionally reverse the judgment and remand the matter to the juvenile court with direction to conduct a transfer hearing. If, at the transfer hearing, the juvenile court determines that it would have transferred defendant to a criminal court, the judgment shall be reinstated as of that date. In that case, the criminal court is then directed to: impose and stay sentences on counts where we have, in our review, discovered section 654 sentencing errors; consider whether to exercise its discretion to strike the section 12022.53 firearm enhancements; conduct a Franklin hearing; and correct certain errors on the abstract of judgment. In all other respects, the judgment shall be affirmed. If, however, the juvenile court determines at the transfer hearing that it would not have transferred defendant to a court of criminal jurisdiction, defendant's criminal convictions and enhancements shall be deemed to be juvenile adjudications as of that date, and the juvenile court shall conduct a dispositional hearing.
People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
FACTUAL AND PROCEDURAL BACKGROUND
The Charges and Enhancement Allegations
An amended information charged defendant and two codefendants—Tou Her and Tonny (or Tony) Lee—with four counts of attempted murder (§§ 664, 187, subd. (a); counts one through four), one count of discharging a firearm at an occupied vehicle (§ 246; count five), and four counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts six through nine). The victims specified in the attempted murder and assault counts were Paul S. (Paul), P.X. (Danny), B.V. (Bobby), and Danny's four-year-old daughter, Cornelia X. (Cornelia). As to each of the attempted murder counts and the count of discharging a firearm at an occupied vehicle, the information also alleged a gang enhancement (§ 186.22, subd. (b)(1)), and a vicarious firearm use enhancement (§ 12022.53, subds. (c), (d), (e)(1)). As to the assault with a semiautomatic firearm counts, the amended information also alleged personal use of a firearm (§§ 1203.06, subd. (a)(1), 12022.5, (a)(1)) by all three defendants on the assault charges, but these personal use allegations were not advanced at trial against defendant, who is the only subject of this appeal. The amended information alleged defendant was 16 years old when he committed the crimes. (Former Welf. & Inst. Code, § 707, subds. (b), (d)(1).)
Trial Evidence
On December 12, 2008, around 5:00 p.m., the four victims were in Danny's four-door Tahoe SUV, driving to Danny's home after buying a Christmas tree. At the time, Paul was 25 years old, Bobby was approximately 33 years old, and Danny was approximately 37 years old. Danny was driving, Bobby was in the front passenger seat, Paul was in the back seat on the driver's side, and Cornelia was in a car seat in the middle of the back seat to Paul's right. They were driving in Sacramento County on Ford Road toward Norwood Avenue.
As they drove down Ford Road, they saw three male teens, including defendant. The teens seemed to be intoxicated. They were jumping on the side of the street, yelling, grunting, giving nasty looks, and gesturing with their hands in the air. Bobby testified that they were yelling something about "their turf," but he could not remember exactly what they said. They wore "Snoopy beanie" hats with earflaps like a dog's ears.
The victims did not identify their attackers in line-ups or at trial, stating that they were unable to do so. Paul did testify that defendant looked like "the young guy that punched me." In any event, defendant's identity as one of the individuals, and his role in the incident as described by the witnesses, are undisputed.
Danny drove past a friend named Philip who was on the sidewalk. Danny made a U-turn to return to Philip's location, made another U-turn, and stopped to talk with Philip for five minutes. Danny then resumed driving toward Norwood Avenue.
Defendant and his companions were still walking on Ford Road, yelling and gesticulating. One of them was in the street and appeared angry. Danny had seen him around the neighborhood but did not know him. Danny was curious and wanted to see if the angry person was okay. Danny pulled the Tahoe up close to the individual and asked him if he was okay or if he had a problem. The victims denied saying "how you doing, Blood," or anything gang-related to defendant and his companions, and denied claiming any gang affiliation.
Defendant and his companions were all on the driver's side of the Tahoe, where Danny and Paul were seated. They yelled to the Tahoe occupants "where you from, fool. And what set you from?" They also threatened to "kick your ass," and asked, "do you want to die?"
Paul testified that he recalled the teen closest to the Tahoe saying "this is HNS." "HNS" stands for "Hmong Nation Society," a criminal street gang active in North Sacramento. Bobby recalled that the teens were yelling something pertaining to gangs, but he did not specifically recall them saying "HNS." Danny did not recall the teens yelling any type of gang names or HNS, although he was aware of a gang called HNS that hung out in the area.
Defendant faked a punch at the window of the Tahoe. Paul rolled his window down halfway and said there was no problem. Defendant jumped onto the Tahoe's running board, shook the vehicle, yelled, "Fuck you, I'll fade all you guys," and punched Paul on the cheek. As Paul began to open his door, defendant jumped off the vehicle, and one of defendant's companions began to shoot at the Tahoe. When the shooting began, Danny stepped on the gas and "just took off." Six or more gunshots were fired at the Tahoe. Danny testified: "I'd say he emptied his clip. I don't know how many rounds it was, but he emptied his clip." Bobby, who ducked down when the shooting started, sat back up after the Tahoe sped away, and observed a hole in the windshield directly in front of him. He realized, "[t]hat could have been my head." Paul sustained two gunshot wounds, one to the chest and one to the leg. Danny heard Cornelia say, "Uncle Paul got shot." When they arrived at Danny's home, they called for an ambulance.
Paul testified he understood "fade" to mean "fight."
At the scene of the shooting, police found six Winchester .380-caliber cartridge casings on the street near the gutter "relatively close to each other." A seventh Winchester .380-caliber cartridge casing was found about two houses to the west of the others.
A police officer examined the Tahoe after the shooting. He observed three bullet strikes on the back of the vehicle and three on the driver's side. On the rear of the Tahoe, there was a bullet hole just below the rear door window, another one lower down on the swinging rear door, and the driver's-side rear window was shattered. There was a bullet hole on the driver's door above the door handle and another adjacent to the window seal at the front of the driver's-side back door. There was also damage to a door frame between the two driver's-side doors. Additionally, there was a bullet hole in the passenger side of the front windshield. The fact that the windshield glass was directed outward suggested that this bullet hole was made from a bullet exiting the vehicle. Two bullet fragments were located in the rear of the vehicle, one just behind the rear seats and the other within the rear swing doors. No weapons were found inside of the Tahoe.
Paul was hospitalized for 12 days. The bullet which hit him in the chest collapsed his right lung, and the bullet remained in his chest as of the time of trial. He also suffered nerve damage and experienced difficulty breathing as a result of that wound. By the time of trial, the gunshot wound Paul had sustained to the leg was fine.
Two months after the shooting, gang detectives executed a search warrant at defendant's house and searched his room, where they found three relevant items. A piece of binder paper bearing the words " 'Hmong Nation Society' " was found on the floor in defendant's bedroom. A piece of plastic taped to the wall bore the words, " 'Ruthless Brothers Gangsters.' " Ruthless Brothers Gangsters or RBG is a subset of Hmong Nation Society. A photograph of defendant and two others with the numbers " '916' " written on it was also found in the room. According to one gang detective who testified, it is typical for individuals in the gang world to identify with the area code for their geographic location.
Detective Joseph Bailey, who testified as an expert on the subject of Asian street gangs, and who interviewed Paul and Danny following the shooting, testified that HNS or Hmong Nation Society is a criminal street gang active in North Sacramento. HNS members claim the Strawberry Manors area of North Sacramento as their turf, and the shooting happened "right in the middle" of that area.
According to Bailey, Paul told him during an interview that the individual who jumped on the Tahoe's running board yelled out "HNS." At trial, Bobby recalled telling Bailey that one of the teens lifted his sleeve to show a forearm tattoo. In an interview with law enforcement, Danny stated that the individual had an "HNS" tattoo.
Defendant has a tattoo that says "Hmong." Bailey testified that this tattoo was not specifically connected to HNS beyond the fact that HNS stands for Hmong Nation Society.
Law enforcement conducted two recorded interviews with defendant. The first occurred after the search warrant was executed at defendant's house. The video recording of the interview was played for the jury. Defendant said he was 16 years old. Bailey told defendant that he had seen some "HNS stuff" in his room and asked defendant if he was in HNS. Defendant replied, "I guess I am." Bailey told defendant you either are HNS or you are not, and defendant replied he was "not . . . with them." Bailey asked why defendant had HNS written in his room, and defendant replied that he did not know.
Defendant repeatedly denied any involvement in the incident. Bailey told defendant that his friends were talking to police and that they had "pretty much come clean," and encouraged defendant to tell his side of the story. Defendant stated that he did not "know who pulled the trigger." According to defendant, he and his companions were drinking on Ford Road when "some dude rolled up," and the people in the vehicle yelled, "[W]hat's up, blood?" Defendant said he and his companions responded, "Man, why y'all getting on us like that, no?" Defendant stated that he was drunk at the time. He approached the vehicle and his companions followed him. The vehicle performed a U-turn and returned to the area where defendant and his associates were. According to defendant, he approached the vehicle, "and I just punched him, and then, all of a sudden I don't know, one of my homies pull the trigger, and then we just ran. That's it. That's all I know." Defendant stated that he did not know which one of his companions fired the gun. He also claimed that he did not know before the shooting that any of his companions had a gun. Bailey told defendant that he knew defendant had the gun after the shooting and defendant repeatedly denied it.
After a break, Bailey asked defendant to go over what happened again. Defendant said he and his companions were outside smoking cigarettes and drinking when some people drove by in an SUV, screaming out the windows, " 'What's up, Blood.' " Defendant and his friends walked toward the vehicle to " 'see what's up.' " Defendant said he yelled, " 'Fuck y'all, cuz, HNS' " or something like that. Then, according to defendant, "all of a sudden, I'm punching, and then I moved back, and then I don't know who shot the gun though, man. And I moved back and I ran, and then all of a sudden, one of my homeboy start poppin', like they pulled the trigger and like -- I think like three, four times, I think." Defendant and his friends then split up and ran.
Defendant identified his associates who were present at the scene as Tou Her and Bruce Lee. Defendant claimed that neither Her nor Bruce Lee were HNS gang members, but, at this point, he admitted that he was.
Defendant claimed he did not know what happened to the gun used in the incident. Defendant continued to maintain that he never had the gun and did not know why people were telling Bailey he had been in possession of it. Bailey told defendant that the police were going to find the gun and the person who had it would tell them that he got it from defendant, and if the gun was connected to the shootings, "it's probably gonna land on" defendant. Bailey added that defendant's DNA would be found on the gun and that defendant's older companions would likely point the finger at him because he was a juvenile. After some time, defendant admitted that he was worried about getting in trouble with the people who had the gun. Eventually, defendant admitted that he had a gun, a black .380, and that he gave it to a friend. Defendant said he bought the gun on the street for $200 approximately five months earlier. Defendant said he did not know if it was the gun used in this shooting.
Defendant then said he gave Her the gun one or two days before the shooting. He said he did not know Her "was gonna bring the gun with him to shoot it." When the incident began, he thought they were just going to fight the men in the vehicle. He said after he punched the person, he heard either Bruce Lee or Her say in Hmong " '[m]ove back,' " so he did, "and then he start[ed] pulling the trigger." Later in the interview, defendant said it was Bruce Lee's voice he had heard. Defendant claimed he did not see who did the shooting, but Bruce Lee later told him that Her fired the weapon. Defendant got the gun back from Bruce Lee two days after the shooting, gave it to a friend, and never got it back.
When asked who was in the vehicle, defendant said he did not know. But then he added, "It seemed like there was like -- the car was packed. Seemed like the car was packed when I saw it, like five heads in there." He said he did not see a four-year-old girl in the vehicle.
A little less than a month after the first interview, detectives conducted a second interview with defendant. The audio recording of the interview was played for the jury. Defendant said he, Her, Bruce Lee, and Tonny Lee were "chillin' and drinking" at Her's house on Ford Road. Defendant was drunk and mad when the people rolled up in the vehicle screaming, " 'What's up, blood,' " which defendant perceived as disrespectful, but he decided not to do anything " 'unless they come back.' " Defendant said he thought the occupants of the vehicle were Mexican, "[l]ike some Norte or some shit like that." He had had problems with Norteños in the past. Defendant's companions encouraged him to go to the street. Soon, the vehicle performed a U-turn and came back towards defendant's location. Defendant said the people in the car "said something. I forgot, I didn't hear it good. So I just punched one of the guy [sic] in the back and when I turned around I ran. And then [Her] shot the gun, everybody just ran." After defendant heard the gunshots, he saw the gun in Her's hand, pointed at the vehicle. After he heard a gunshot, defendant ran. Later, defendant met up with Her, and Her said he shot the gun and that there were no more bullets. In this interview, defendant denied that he gave the gun to Her. However, he admitted that he knew Her had the gun while they were drinking a couple of hours before the shooting because Her had showed it to him.
Eventually, defendant admitted that there was no "Bruce Lee." The person defendant had been referring to by that name was codefendant Tonny Lee. Defendant could not explain why he had initially refused to disclose Lee's true name.
Defendant admitted that he got the gun back two days after the shooting, and that he knew it was the gun that was used in the shooting and that it "had a body on it." Defendant said Her gave defendant the gun and told him to hold onto it. Defendant gave the gun to someone else.
At a later point during the same interview, when asked if he knew that the gun Her gave him was the gun used in the shooting, defendant stated that he "didn't know it was the same gun."
Defendant acknowledged that he was a member of HNS and he again admitted yelling "HNS" during the incident. Defendant explained that he yelled out "HNS" because "the dude" said, " 'What's up, Blood' " to him. Her and Lee were not HNS, but they knew defendant was. Defendant acknowledged that the shooting occurred in HNS territory, and that Her may have fired the gun to show support for HNS. When asked if Her and Lee were "down for HNS," defendant said "I would say that."
Bailey validated defendant as an HNS member based on his admission on a prior occasion, his admission in this case, and the gang writing found in his bedroom. Bailey opined that the shooting was committed for the benefit of, at the direction of or in association with the HNS criminal street gang. The motivation was the "concept of respect."
Gang detectives executed a search warrant at Tou Her's home on Franklin Way. A binder found in a vehicle outside the residence contained Her's fishing license and gang-related drawings. One drawing bore the words, " 'blood for life nigga HNS.' " Another "indicated HNS pride." Several pages in the binder contained references to "HNS." Her had not been validated prior to this shooting, but the prosecution's gang expert validated him based on his part in this case and the items found during the search warrant at his home. Police also found Tonny Lee's wallet in a bedroom in Her's residence.
Defendant did not testify and presented no witnesses.
Verdicts and Sentencing
The jury found defendant guilty on all nine counts and found true the gang enhancement allegations and the firearm enhancement allegations. It appears from defendant's probation report that Her was acquitted, and Lee was convicted of four counts of assault with a semiautomatic firearm (§ 245, subd. (b)), for which he was sentenced to a stipulated term of 12 years in prison.
The trial court sentenced defendant to 59 years to life in prison, calculated as follows: the middle term of seven years on count one, attempted murder of Paul (§§ 664, 187, subd. (a)), plus 25 years to life for the vicarious firearm use enhancement (§ 12022.53, subds. (d), (e)(1)), and consecutive terms of two years four months (one-third the middle term) on each of the remaining attempted murder convictions in counts two, three, and four, plus six years eight months for each of the firearm enhancements (§ 12022.53, subd. (c)) on counts two, three, and four. The trial court did not impose a separate sentence for the section 186.22 gang enhancement in light of the sentences imposed pursuant to section 12022.53, subdivisions (c), (d), and (e)(1). The trial court stayed imposition of sentence on the remaining counts pursuant to section 654 rather than imposing sentences and staying the execution thereof.
In a second pending case (09F04196), pursuant to a plea agreement, the trial court sentenced defendant to a concurrent middle term of three years for assault with force likely to produce great bodily injury, plus a five-year gang enhancement. This assault occurred only weeks after the incident at issue in this appeal. Defendant brandished a gun and was part of a group of a dozen or so persons who kicked and hit the victim, though the victim could not say defendant personally kicked or hit him. During the assault, defendant said something to the effect that "this was about HNS."
DISCUSSION
I. Proposition 57
A. Defendant's Contentions
We affirm defendant's convictions, post. But before we delve into defendant's claims of trial and sentencing error, we address his contention that he is entitled to a remand for a transfer hearing pursuant to Proposition 57 and Welfare and Institutions Code section 707, subdivision (a).
Following amendments to Welfare and Institutions Code sections 602 and 707 in 1999 and 2000, in certain circumstances, "prosecutors were permitted, and sometimes required, to file charges against a juvenile directly in criminal court, where the juvenile would be treated as an adult." (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305 (Lara).) This was the case here. However, on November 8, 2016, while this matter was pending on appeal, the electorate passed Proposition 57, which took effect the following day. (Cal. Const., art. II, § 10, subd. (a).) Proposition 57 essentially restored the relevant procedure to what it had been prior to the 1999 and 2000 amendments. (Lara, at p. 305.) "Among other provisions, Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors. Certain categories of minors . . . can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated." (People v. Vela (2018) 21 Cal.App.5th 1099, 1103 (Vela), citing Welf. & Inst. Code, § 707, subd. (a)(1).)
Following the passage of Proposition 57, defendant submitted a motion for a stay of his appeal and a limited remand for a transfer hearing. He asserted that he was entitled to retroactive application of Proposition 57 under the rule in In re Estrada (1965) 63 Cal.2d 740 (Estrada). We denied defendant's motion for a stay and for a limited remand, but deemed his written request and the People's opposition to be supplemental briefing on the Proposition 57 issue. We need not delve into defendant's arguments supporting his contention that Proposition 57 should apply retroactively to his case, or the People's arguments in opposition, because our high court has resolved the issue.
In Estrada, our high court "held that a statute that reduced the punishment for a crime applied retroactively to any case in which the judgment was not final before the statute took effect." (Lara, supra, 4 Cal.5th at p. 303.) The Estrada court held that it can be inferred that the Legislature or electorate "must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Estrada, supra, 63 Cal.2d at p. 745.) In People v. Francis (1969) 71 Cal.2d 66, our high court "applied Estrada to a statute that merely made a reduced punishment possible." (Lara, at p. 303.)
B. Proposition 57 Retroactivity
In Lara, our high court held: "The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, Estrada's inference of retroactivity applies. As nothing in Proposition 57's text or ballot materials rebuts this inference, we conclude this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, supra, 4 Cal.5th at pp. 303-304.) Accordingly, Proposition 57 applies to defendant's case.
C. Remedy
The procedural posture of this case is different than in Lara. In Lara, the prosecutor had direct-filed charges in adult criminal court, but the real party in interest had not been tried at the time Proposition 57 took effect. (Lara, supra, 4 Cal.5th at p. 303.) Here, defendant's case was pending on appeal when Proposition 57 took effect. However, in Lara, our high court endorsed a remedy for such circumstances.
In the prior iteration of the Vela decision considered by our high court in Lara, the Court of Appeal, Fourth Appellate District, Division Three, employed a remedy for cases pending on appeal. Our high court endorsed that remedy in Lara. (Lara, supra, 4 Cal.5th at pp. 309-310, 313.) Having previously granted review in Vela, our high court subsequently transferred Vela back to the Court of Appeal with direction to vacate its prior decision and reconsider the cause in light of Senate Bill No. 620. In the resulting decision on transfer (Vela, supra, 21 Cal.App.5th 1099), the Court of Appeal employed the same Proposition 57 remedy which it had employed in its prior decision and which our high court endorsed in Lara. (Vela, at pp. 1112-1113.)
People v. Vela (2018) 11 Cal.App.5th 68, transferred and vacated February 28, 2018, S242298.
Senate Bill No. 620 is discussed in part IV. of the Discussion, post.
In Vela, the defendant had been charged in adult criminal court, tried, convicted, and sentenced prior to the enactment of Proposition 57. (Vela, supra, 21 Cal.App.5th at p. 1102.) After the passage of Proposition 57, the Vela court concluded that Proposition 57 applied retroactively to the defendant's case under the rule in Estrada. (Vela, at pp. 1104-1112.) Regarding the remedy fashioned in the earlier Vela decision, our high court in Lara wrote: "After finding that the defendant was entitled to a transfer hearing, the Vela court considered the remedy. It began by noting that the 'jury's convictions, as well as its true findings as to the sentencing enhancements, will remain in place. Nothing is to be gained by having a "jurisdictional hearing," or effectively a second trial, in the juvenile court.' [Citation.] Noting that an 'appellate court "may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances[]" (Pen. Code, § 1260),' the court ordered a limited remand. [Citation.] [¶] Specifically, the Vela court ordered as follows: 'Here, under these circumstances, Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. [Citation.] When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Vela's cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then Vela's convictions and sentence are to be reinstated. [Citation.] On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela's convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' " (Lara, supra, 4 Cal.5th at pp. 309-310.)
Having been endorsed by our high court (Lara, supra, 4 Cal.5th at p. 313), we apply the Vela remedy here. Accordingly, we shall conditionally reverse the judgment and remand to juvenile court for a transfer hearing pursuant to Welfare and Institutions Code section 707, subdivision (a). If the juvenile court determines at the transfer hearing that it would not have transferred defendant to a court of criminal jurisdiction, defendant's criminal convictions and enhancements shall be deemed to be juvenile adjudications as of that date, and the juvenile court shall conduct a dispositional hearing. If, at the transfer hearing, the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction, the judgment shall be reinstated as of that date.
II. Instruction on Provocation by Gang Challenge/Insults
Defendant argues the attempted murder convictions must be reversed because the trial court erred in instructing the jury with CALCRIM No. 917. That instruction reads: "Words, no matter how offensive, and acts that are not threatening, are not enough to justify an assault or battery." The trial court gave this instruction when instructing on the assault counts. Defendant complains the trial court failed to instruct the jury, sua sponte, that mere words could suffice as provocation reducing attempted murder to attempted manslaughter. Defendant contends his culpability for attempted murder was based on aiding and abetting the shooting, or on attempted murder as a natural and probable consequence of his assault on the backseat passenger, and CALCRIM No. 917 precluded the jurors from considering a statement purportedly made by the victims—"what's up, blood?"—as provocation reducing attempted murder to attempted manslaughter. Defendant argues that, if we conclude he forfeited the issue by failing to raise it in the trial court, it was forfeited as a result of ineffective assistance of trial counsel. We conclude defendant forfeited the contention, fails to show ineffective assistance of counsel, and, even if it were not forfeited, the contention fails on its merits.
Prior to instructing the jury on the assault counts, including the instruction that words do not justify an assault, the trial court instructed the jury on attempted murder and the concept that provocation could reduce attempted murder to attempted manslaughter On this latter point, the court instructed the jury with CALCRIM No. 603 as follows:
"An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion.
"A defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant took at least one direct but ineffective step toward killing a person; [¶] 2. The defendant intended to kill that person; [¶] 3. The defendant attempted the killing because he was provoked; [¶] 4. The provocation would have caused an ordinary person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment; [¶] AND [¶] 5. The attempted killing was a rash act done under the influence of intense emotion that obscured the defendant's reasoning or judgment.
"Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.
"In order for a sudden quarrel or heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
"It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.
"If enough time passed between the provocation and the attempted killing for an ordinary person of average disposition to 'cool off' and regain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on this basis.
"The People have the burden of proving beyond a reasonable doubt that the defendant attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted voluntary manslaughter."
Defendant did not object to the instructions in the trial court. He claims no objection was needed because section 1259 allows the appellate court to review jury instructions, even where no objection was made in the trial court, if the instructions affect the defendant's substantial rights. However, while that rule may apply to erroneous instructions, the trial court has no sua sponte duty to revise or improve upon jury instructions that accurately state the law, and a defendant must ask for modification in the trial court or the issue is forfeited. (People v. [Philian] Lee (2011) 51 Cal.4th 620, 638 (P. Lee).) Here, the jury instructions were correct statements of law. To the extent defendant wanted a modification to specify that provocation may consist of mere words (People v. [Steven] Lee (1999) 20 Cal.4th 47, 59 [provocation may be physical or verbal]), his failure to request such modification in the trial court forfeits the contention. (P. Lee, at p. 638.)
Defendant argues any forfeiture deprived him of the constitutionally effective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) " 'Surmounting Strickland's high bar is never an easy task.' " (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].) If the record fails to disclose why counsel acted or failed to act, we will not find ineffective assistance unless counsel was asked for an explanation and failed to give one, or there is no conceivable rational tactical explanation for the attorney's action or omission. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Here, trial counsel was not asked for an explanation as to why he did not request an instruction that mere words could suffice as provocation reducing attempted murder to attempted manslaughter. Defendant argues there is no conceivable reason. We disagree. The reason is apparent in trial counsel's closing argument to the jury. Counsel did not argue that the victims said, "[W]hat's up, blood." Instead, he argued this was not a gang case at all; this was a case where some people in a vehicle saw some skinny drunk kids wearing Snoopy beanie hats and decided to hassle them and started some kind of verbal altercation. One of the drunk kids, defendant, punched someone for calling him names, which did not justify the assault, but it was not reasonably foreseeable that his companion would shoot at the people in the vehicle. Thus, counsel's apparent strategy was to deemphasize the gang overtones and blame the shooting on the unforeseeable conduct of one of defendant's companions. Counsel's strategy is not constitutionally deficient just because it did not work. (Richter, supra, 562 U.S. at p. 109 [defense counsel is not incompetent merely because the defense strategy did not work out as well as counsel had hoped].) Nor was it an unreasonable strategy under prevailing professional norms.
An additional reason why trial counsel may not have requested further instruction is that there were no words in this case that could possibly suffice as provocation for an attempted heat of passion killing. According to defendant's statements to the police, one of the victims said, "[W]hat's up, blood?" which defendant deemed to be disrespectful. But, as the trial court appropriately instructed, defendant could not set up his own standard; the test was whether "an ordinary person of average disposition would have been provoked." We view defendant's argument here as the equivalent of contending the jury should have been able to consider whether a reasonable gang member would be provoked by the victims' purported statement, "[W]hat's up, blood?" However, the California Supreme Court has "rejected arguments that insults or gang-related challenges would induce sufficient provocation in an ordinary person to merit an instruction on voluntary manslaughter." (People v. Enraca (2012) 53 Cal.4th 735, 759 (Enraca) [standard for provocation is not a " 'reasonable gang member' "]; People v. Avila (2009) 46 Cal.4th 680, 706-707 (Avila).) Accordingly, we reject defendant's argument here.
Defendant asserts that, in People v. Medina (2009) 46 Cal.4th 913, 921-922 (Medina), our high court concluded that it could be " 'reasonably foreseeable' " that a gang challenge such as that purportedly offered by one of the victims here would result in the use of lethal force by a gang member. However, the court in Medina did not say such use of lethal force could be the result of heat of passion brought on by a gang challenge reducing murder to manslaughter. In that murder case, the defendant and his cohorts, who were all members of a criminal street gang, repeatedly challenged the victim by asking, " 'Where are you from?' " (Id. at pp. 916-917.) When the victim responded with his gang affiliation, the defendant, affiliated with a different gang, said, " 'What fool, you think you crazy?' " (Id. at p. 917.) A person in the defendant's group punched the victim. (Ibid.) The rest of the defendant's group joined in but could not get the best of the victim, who got into a car. (Ibid.) Someone said, " '[G]et the heat.' " (Ibid.) As the victim drove off, the defendant stepped into the street and fired a gun repeatedly at the car, killing the victim. (Ibid.) Our high court reversed the Court of Appeal's determination that the evidence was legally insufficient to support a finding that the shooter's actions were a reasonably foreseeable consequence of the gang assault so as to support murder and attempted murder convictions of two nonshooters. (Id. at pp. 919-928.) Our high court concluded that "a rational trier of fact could have found that the shooting of the victim was a reasonably foreseeable consequence of the gang assault." (Id. at p. 922.) In his dissent, joined by Justices Kennard and Werdegar, Justice Moreno stated that, "[s]tripped to its essence, what the majority holds is that the challenge 'Where are you from?' is so provocative in the context of gang culture that any response up to and including murder is a reasonably foreseeable consequence of that utterance, so as to justify a murder conviction not only of the actual perpetrator but also of any other gang members involved in the target offense, whatever the surrounding circumstances." (Id. at p. 932 (dis. opn. of Moreno, J.).) However, the Medina court did not hold or even suggest that a verbal gang challenge could suffice as provocation reducing murder to manslaughter.
Here, there was no provocation sufficient to give rise to heat of passion. "What's up, blood?" is insufficient to provoke an ordinary person of average disposition. (See Enraca, supra, 53 Cal.4th at p. 759; Avila, supra, 46 Cal.4th at pp. 706-707.) Therefore, defendant was not denied the constitutionally effective assistance of counsel due to defense counsel's failure to request the instruction suggested by defendant here. For the same reason, even assuming the contention was not forfeited, it would fail on the merits. We conclude defendant fails to show reversible instructional error regarding provocation.
III. CALCRIM No. 600 and the "Kill Zone" Instruction
A. Additional Background and Defendant's Contentions
The trial court instructed the jury with CALCRIM No. 600 as follows:
"The defendant is charged in Counts One through Four with attempted murder. [¶] To prove that a defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant took direct but ineffective steps toward killing another person; [¶] AND [¶] 2. 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 or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It's 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 circumstance outside the plan had not interrupted the attempt. [¶] A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing a 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.' For each count, in order to convict a defendant of the attempted murder of the person named in that count, the People must prove that the defendant not only intended to kill Paul . . . or [Danny] but also either intended to kill the person named in that count or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill the person named in that count, or intended to kill Paul . . . or [Danny] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of the person named in that count." (Italics added.)
In her initial closing argument to the jury, the prosecutor stated: "Now . . there is this other concept, obviously, Paul got hit. Paul has a direct shot in [the] car that showed that was an attempt to kill him. But I want to talk about this concept in relationship to those other people in the car and whether or not you have to find that the shooter specifically intended to kill, for example, that little girl in her car seat. [¶] And the law says that you do not have to find that. There's this concept of this kill zone. And in terms of that in our case, we have got Danny in the front driver [side], we've got Paul in that other side. Those are the two that are really having the encounter with these three on the street, right. They're the ones that have their window down, they're getting punched, maybe saying things, asking what are you kids out here doing? They're the ones that are attracting the attention to these guys. [¶] So if you find that, in fact, the people on the street decided that they were going to try and kill those people by just lining that car and killing everybody in that kill zone in order to try and kill them, that's what we're talking about in relationship to this. So these people are clearly in that kill zone. They are all right there in that Tahoe together. [¶] So there's no requirement that they -- specifically you can find that they specifically intended to kill each one of them. But if you don't find that, certainly an easier way is they just intended to kill everyone in that car, kill those people and shoot that car and take out anybody that they needed to." (Italics added.)
Defendant argues in his opening brief that the trial court erred by instructing the jury that it could convict him on the four counts of attempted murder if he intended to kill any one of the victims named in those counts, thereby removing the prosecution's burden to prove that he intended to kill each named victim. Defendant asserts that the trial court should not have given the portion of CALCRIM No. 600 pertaining to the kill zone theory of liability because the prosecutor's theory was not based on an attempt to kill any specific victim or victims. Defendant argues the prosecutor should have charged four counts of attempted murder without naming any particular victim. Defendant further argues any forfeiture of this argument was due to ineffective assistance of counsel. In addition to the arguments advanced in defendant's opening brief, we granted defendant's request for supplemental briefing on the kill zone instruction to afford defendant the opportunity to address two cases that were decided after he filed his opening brief and which further explored the nature of the kill zone theory of liability. In his supplemental brief, defendant asserts that: (1) the trial court erred in instructing the jury with the kill zone portion of CALCRIM No. 600 because that instruction, as given, failed to define the kill zone, and (2) the kill zone theory of liability and instruction were not supported in this case by substantial evidence.
These cases are People v. McCloud (2012) 211 Cal.App.4th 788 (McCloud) and People v. Sek (2015) 235 Cal.App.4th 1388, review granted July 22, 2015, S226721 (Sek). Because the California Supreme Court granted review in Sek, under the rules in effect at the time (Cal. Rules of Court, former rule 8.1105(e)), it has been depublished and is no longer citable authority. In light of the status of Sek, we will not discuss it substantively here.
We disagree with defendant's contentions. Because we conclude there was no instructional error regarding the kill zone theory of liability, we need not address defendant's contention that the claimed error was of federal constitutional dimension.
B. Forfeiture
Defendant did not raise before the trial court any of the contentions advanced here pertaining to the kill zone instruction and the kill zone theory of liability. In general, a party forfeits any challenge to a jury instruction that was correct on the law and responsive to the evidence if the party fails to object to the instruction in the trial court. (People v. Cardona (2016) 246 Cal.App.4th 608, 612, review granted July 27, 2016, S234660, citing People v. Bolin (1998) 18 Cal.4th 297, 326 (Bolin).) However, the rule of forfeiture does not apply if the instruction was an incorrect statement of the law (People v. Hudson (2006) 38 Cal.4th 1002, 1012), or if the instructional error affected the defendant's substantial rights (§ 1259). In any event, and to dispose of defendant's contention that his trial counsel was constitutionally ineffective for failing to raise the contentions addressed to the kill zone instruction, we shall consider defendant's contentions and conclude that they are lacking in merit. Therefore, counsel was not ineffective for declining to object to the portion of CALCRIM No. 600 at issue.
C. Applicable General Principals of Law
" 'The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.] "It is an elementary principle of law that 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. Alexander (2010) 49 Cal.4th 846, 920-921.) It is error for a trial court to give an instruction which has no application to the facts of the case. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
"The test for determining whether instructions on a particular theory of guilt are appropriate is whether there is substantial evidence which would support conviction on that theory. [Citation.] To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant to be guilty on the theory presented." (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529 (Nguyen).)
In examining the jury instructions to determine whether the law was correctly conveyed to the jury, we first ascertain the relevant law, and then consider the meaning of the instructions in this regard. We ask "whether there is a 'reasonable likelihood' that the jury understood the charge as the defendant asserts." (People v. Kelly (1992) 1 Cal.4th 495, 525 (Kelly).) " 'In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. [Citation.] Finally, we determine whether the instruction, so understood, states the applicable law correctly.' " (Id. at pp. 525-526.)
D. The "Kill Zone" Theory of Liability for Attempted Murder
" 'The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. [Citations.] In contrast, '[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.' " (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) "[I]ntent to kill does not transfer to victims who are not killed, and thus 'transferred intent' cannot serve as a basis for a finding of attempted murder." (People v. Perez (2010) 50 Cal.4th 222, 232 (Perez); see People v. Bland (2002) 28 Cal.4th 313, 326-331 (Bland).) Thus, "[s]omeone who in truth does not intend to kill a person is not guilty of that person's attempted murder even if the crime would have been murder—due to transferred intent—if the person were killed. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant's mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others." (Bland, at p. 328.)
In Bland, the California Supreme Court introduced the kill zone theory of liability into California's jurisprudence. (Bland, supra, 28 Cal.4th at pp. 319-333.) There, the defendant shot into a car and, as the driver began to drive away, the defendant and another man continued shooting at the car. (Id. at p. 318.) The driver died, and the two passengers in the vehicle were wounded. (Ibid.) The defendant was convicted of the murder of the driver and the attempted murder of the two passengers. (Ibid.) The Court of Appeal reversed the two attempted murder convictions. (Ibid.) Our high court reversed the Court of Appeal's determination, employing the kill zone theory of liability in its analysis. (Id. at pp. 329-331.) Discussing the kill zone theory, our high court, relying on a Maryland decision, stated: "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 [the Maryland court] 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. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A's head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death. The defendant's intent need not be transferred from A to B, because although the defendant's goal was to kill A, his intent to kill B was also direct; it was concurrent with his intent to kill A. 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. This situation is distinct from the "depraved heart" [i.e., implied malice] situation because the trier of fact may infer the actual intent to kill which is lacking in a "depraved heart" [implied malice] scenario.' " (Bland, at pp. 329-330, second italics added, quoting Ford v. State, supra, 625 A.2d at pp. 1000-1001.)
Ford v. State (Md.Ct.App. 1993) 330 Md. 682 (Ford), disapproved on another ground in Henry v. State (Md.Ct.App. 2011) 419 Md. 588 .
Since our high court's decision in Bland, the Courts of Appeal have differed in their understanding of the kill zone theory.
In McCloud, supra, 211 Cal.App.4th 788, on which defendant relies in his supplemental briefing, the defendants fired 10 shots from a semiautomatic handgun at a party with more than 400 people in attendance. (Id. at pp. 790-791.) Three victims were struck, each by a single bullet, and two of the victims died. (Id. at p. 791.) The defendants were charged with two counts of murder and 60 counts of attempted murder, although 14 of the attempted murder counts were later dismissed. (Id. at p. 792.) Both defendants were convicted of second degree murder for each death. (Ibid.) One defendant was convicted of 46 counts of attempted murder, and the other was convicted of 46 counts of the lesser included offense of assault with a firearm. (Ibid.) On appeal, one of the defendants asserted that the trial court erred by instructing the jury on the kill zone theory. (Id. at p. 796.) The Court of Appeal agreed. (Ibid.)
The McCloud court stated that, "[u]nder Bland, 'a shooter may be convicted of multiple counts of attempted murder on a "kill zone" theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the "kill zone") as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm.' [Citation.] Examples include 'using an explosive device with intent to kill everyone in the area of the blast, or spraying a crowd with automatic weapon fire, a means likewise calculated to kill everyone fired upon.' " (McCloud, supra, 211 Cal.App.4th at p. 797.)
The Court of Appeal continued: "The kill zone theory . . . does not apply if the evidence shows only that the defendant intended to kill a particular targeted individual but attacked that individual in a manner that subjected other nearby individuals to a risk of fatal injury. Nor does the kill zone theory apply if the evidence merely shows, in addition, that the defendant was aware of the lethal risk to the nontargeted individuals and did not care whether they were killed in the course of the attack on the targeted individual. Rather, the kill zone theory applies only if the evidence shows that the defendant tried to kill the targeted individual by killing everyone in the area in which the targeted individual was located. The defendant in a kill zone case chooses to kill everyone in a particular area as a means of killing a targeted individual within that area. In effect, the defendant reasons that he cannot miss his intended target if he kills everyone in the area in which the target is located." (McCloud, supra, 211 Cal.App.4th at p. 798.) "The kill zone theory consequently does not operate as an exception to the mental state requirement for attempted murder or as a means of somehow bypassing that requirement. In a kill zone case, the defendant does not merely subject everyone in the kill zone to lethal risk. Rather, the defendant specifically intends that everyone in the kill zone die. If some of those individuals manage to survive the attack, then the defendant—having specifically intended to kill every single one of them and having committed a direct but ineffectual act toward accomplishing that result—can be convicted of their attempted murder." (Ibid.)
The McCloud court concluded that, "for the kill zone theory to support 46 attempted murder convictions . . . , the record would have to contain evidence that [the defendants] tried to kill the person who punched [one of them] by killing all 46 people in the area where [that] assailant was located. But the record contains no evidence that [the defendants] intended to kill 46 people with 10 bullets." (McCloud, supra, 211 Cal.App.4th at p. 799.) The court further concluded that the "evidence that there were 'dozens upon dozens' of people, densely packed together, in the path of the bullets does constitute evidence that those people's lives were endangered. It does not, however, constitute evidence that [the defendants] intended to kill more than one person per bullet fired, let alone that they intended to kill more than four people per bullet fired. The evidence of the size and density of the crowd therefore does not constitute evidence that [the defendants] intended to kill 46 people with 10 bullets, so it cannot support respondent's application of the kill zone theory in this case." (Id. at pp. 800-801.)
The McCloud court next addressed the prosecution's contentions in closing argument that the attempted murder victims were grouped into three kill zones, two around the two murder victims and one near a car that was hit by two bullets. (McCloud, supra, 211 Cal.App.4th at p. 801.) The McCloud court determined that the prosecutor's theory was wrong for two reasons. "First, the prosecutor did not argue that there was a primary target (and there is no evidence that [the murder victims] or anyone near the car was a primary target), so the argument presented no factual basis for application of the kill zone theory. The theory applies only if the defendant chooses, as a means of killing the primary target, to kill everyone in the area in which the primary target is located; with no primary target, there can be no area in which the primary target is located and hence no kill zone." (Id. at pp. 801-802, fn. omitted.) "Second, the prosecutor's argument assumed that individuals who are merely endangered or put 'at risk' or located within 'the zone of risk' are attempted murder victims on the kill zone theory. That is incorrect as a matter of law. The prosecutor never attempted to argue that [the defendants] specifically intended to kill every single person in each of the putative kill zones, as the kill zone theory would actually require." (Id. at p. 802, fn. omitted.) Thus, the McCloud court concluded that the trial court erred by instructing the jury on the kill zone theory because the instruction was not supported by substantial evidence. (Ibid.)
The McCloud court was critical of CALJIC No. 8.66.1, the instruction given in that case. That instruction provides: "A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. [This zone of risk is termed the 'kill zone.'] The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim's vicinity. [¶] Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a ['kill zone'] [zone of risk] is an issue to be decided by you." (CALJIC No. 8.66.1.) The McCloud court stated, in a footnote: "By referring repeatedly to a 'zone of risk,' the instruction suggests to the jury that a defendant can create a kill zone merely by subjecting individuals other than the primary target to a risk of fatal injury. As we have already explained, that is not correct." (McCloud, supra, 211 Cal.App.4th at p. 802, fn. 7.)
The Court of Appeal for the Fourth Appellate District, Division Two, disagreed with the McCloud court's articulation of the kill zone theory of liability. (People v. Windfield (2016) 3 Cal.App.5th 739, review granted Jan. 11, 2017, S238073 (Windfield).) The Windfield court opined that McCloud "goes too far," stating: "The language in Bland . . . posits that the intent to kill the nontargeted person(s) can be inferred from the nature and scope of the attack or from the method employed. If, as McCloud asserts, the defendant must in fact intend to kill each attempted murder victim, there is no reason to employ the theory—the intent to kill is established without resort to the theory." (Windfield, at p. 760.) The Windfield court quoted our high court in People v. Stone (2009) 46 Cal.4th 131 (Stone), discussing Bland: " 'The evidence supported a jury finding that the defendant intended to kill the driver [of the car into which he shot] but did not specifically target the two who survived. [Citation.] . . . We summarized the rule that applies when an intended target is killed and unintended targets are injured but not killed. . . . [¶] . . . [I]f a person targets one particular person, . . . a jury could find the person also, concurrently, intended to kill—and thus was guilty of the attempted murder of—other, nontargeted persons.' " (Windfield, at p. 760.)
The Windfield court's analysis of the issue was similar to that of another case from the same court, in which the California Supreme Court had previously granted review and which was depublished by operation of California Rules of Court, former rule 8.1105(e), in effect at the time. (People v. Canizales (2014) 229 Cal.App.4th 820 (Canizales), review granted Nov. 19, 2014, S221958.) In granting review in Windfield, our high court stated that further action in that case was deferred pending consideration and disposition of a related issue in Canizales or pending further order of the court. As stated ante, our high court has also granted review in Sek, supra, 235 Cal.App.4th 1388, review granted, which was decided by the same court that decided McCloud, and is consistent with that case. Windfield remains published and citable authority under California Rules of Court, rule 8.1105(e)(1)(B).
The Windfield court also relied on other Court of Appeal cases: "in [People v. Adams (2008) 169 Cal.App.4th 1009, 1023 (Adams)], the Fifth District said, '[T]he . . . [theory] permits a rational jury to infer the required express malice from the facts that (1) the defendant targeted a primary victim by intentionally creating a zone of harm, and (2) the attempted murder victims were within that zone of harm. [It] recognizes that the defendant acted with the specific intent to kill anyone in the zone of harm with the objective of killing a specific person . . . . [It] imposes attempted murder liability where the defendant intentionally created a kill zone in order to ensure the defendant's primary objective of killing a specific person . . . despite the recognition, or with the acceptance of the fact, that a natural and probable consequence of that act would be that anyone within the zone could or would die.' (Italics added.) In People v. Campos [(2007) 156 Cal.App.4th 1228, 1243], the appellate court held, 'The [kill zone] theory . . . "is simply a reasonable inference the jury may draw in a given case . . . ." ' " (Windfield, supra, 3 Cal.App.5th at p. 760.)
Additionally, the Windfield court stated that McCloud could not be reconciled with the fact that two different appellate courts held that "kill zone victims can include those not seen by the defendant or of which the defendant is unaware," and the California Supreme Court had approved of one of those holdings. (Windfield, supra, 3 Cal.App.5th at p. 761, referencing Adams, supra, 169 Cal.App.4th at p. 1023 [affirming attempted murder convictions based on arson for victims whom the defendant asserted she did not know were present when she set the fire], & People v. Vang (2001) 87 Cal.App.4th 554, 563-564 ["[t]he jury drew a reasonable inference, in light of the placement of the shots, the number of shots, and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residences they shot up," even those whom they could not see].)
"[T]his 'concurrent intent' or 'kill zone' theory 'is not a legal doctrine requiring special jury instructions . . . . 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.' [Citation.] Nevertheless, current pattern jury instructions discuss the kill zone theory. [Citations.] The Bench Notes to CALCRIM No. 600 explain that Bland stated that a special instruction on the point is not required, and that the kill zone 'language is provided for the court to use at its discretion.' " (Stone, supra, 46 Cal.4th at pp. 137-138, fns. omitted.)
E. Analysis
1. The Kill Zone Instruction and the Specific Intent to Kill Each Victim
Defendant relies heavily on Stone in his opening brief, asserting that, under Stone, supra, 46 Cal.4th 131, the kill zone theory applies even where the shooter has no primary target. Defendant maintains that the prosecutor's theory in this case was that there was no primary target of the shooting, thus implicating the rule in Stone, discussed post. Defendant asserts that the provision of the kill zone instruction here was error for the same reason that the instruction was determined to be error in Stone.
Stone was a "kill zone" case inasmuch as the trial court gave the jury a modified version of the CALCRIM No. 600 kill zone instruction. (Stone, supra, 46 Cal.4th at p. 138.) In Stone, the defendant fired a single shot from a gun into a group of 10 people. (Id. at p. 136.) The defendant was charged with and convicted of a single count of attempted murder, and the information alleged that a specific individual, Joel F., was the targeted victim. (Ibid.) The Stone court agreed with the Court of Appeal that, under the particular facts of that case, the kill zone instruction was not appropriate. (Id. at p. 138.) Our high court stated: "Here, defendant was charged with but a single count of attempted murder. He was not charged with 10 attempted murders, one for each member of the group at which he shot. As the Court of Appeal explained, 'There was no evidence here that [defendant] used a means to kill the named victim, Joel F., that inevitably would result in the death of other victims within a zone of danger. [Defendant] was charged only with the attempted murder of Joel F. and not with the attempted murder of others in the group on which [defendant] fired his gun.' " (Ibid.) The Stone court stated that the error in giving this instruction was not necessarily prejudicial alone. (Ibid.) However, the Court of Appeal concluded that the error was prejudicial in light of the argument the prosecutor made to the jury. (Id. at pp. 138-139) In closing arguments before the jury, the prosecutor acknowledged that he had failed to prove that the defendant specifically intended to kill Joel F. (Id. at p. 139.) However, he argued that the evidence showed that the defendant intended to kill someone in the group of 10 people, and that this intent to kill someone, even if not the victim alleged in the information, was sufficient to support a finding that the defendant was guilty of attempted murder as charged. (Ibid.) This, among other things, caused our high court to review the question: does attempted murder require the intent to kill a particular person? (Ibid.) After reviewing relevant case law, our high court stated: "a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind. An indiscriminate would-be killer is just as culpable as one who targets a specific person." (Id. at p. 140.) "[A] terrorist who simply wants to kill as many people as possible, and does not know or care who the victims will be, can be just as guilty of attempted murder" as the hypothetical individual described in Bland who places a bomb on an airliner with the intention of killing a targeted individual by killing everyone on board. (Stone, at p. 140.) Ultimately, our high court reversed the Court of Appeal, which had reversed the defendant's conviction, and remanded to that court to reconsider the issues in the case, considering, among other things, "any issues regarding the variance between the information—alleging defendant intended to kill Joel F.—and the proof at trial—showing defendant intended to kill someone, although not specifically Joel F." (Id. at p. 142.)
Before directly addressing defendant's contentions, we note that there is a split among the Courts of Appeal on the question of whether it is appropriate to give a kill zone instruction where there is not substantial evidence that the defendant was intending to kill a specific target among the group of people in the kill zone. In McCloud, the Court of Appeal concluded that the kill zone theory "applies only if the defendant chooses, as a means of killing the primary target, to kill everyone in the area in which the primary target is located; with no primary target, there can be no area in which the primary target is located and hence no kill zone." (McCloud, supra, 211 Cal.App.4th at pp. 801-802, fn. omitted.) The court in McCloud concluded that the kill zone theory and the rule in Stone are mutually exclusive: "If Stone applies, then there is no targeted individual, so the kill zone theory cannot apply; if the kill zone theory does apply, then there must be a targeted individual, so Stone cannot apply." (McCloud, at pp. 801-802 & fn. 6.) However, in People v. Falaniko (2016) 1 Cal.App.5th 1234 (Falaniko), the court stated that the "Supreme Court has also held the kill zone theory to apply even if the defendant has no specific target in mind but shoots to kill everyone in a defined area, reasoning that '[a]n indiscriminate would-be killer is just as culpable as one who targets a specific person.' " (Id. at p. 1243, quoting Stone, supra, 46 Cal.4th at p. 140.)
In any event, we need not weigh in on that split here. Defendant's reliance on Stone is misplaced. The facts of Stone, which our high court determined were so ill-suited to a kill zone theory of liability, are readily distinguishable from the facts of this case. In Stone, the defendant was charged with a single count of attempted murder of a specifically identified targeted victim after he fired a single shot into a group of 10 people. (Stone, supra, 46 Cal.4th at p. 136.) The prosecutor acknowledged that he failed to prove that the defendant attempted to kill the victim named in the information. (Id. at p. 139.) In Stone, " '[t]here was no evidence . . . that [the defendant] used a means to kill the named victim, Joel F., that inevitably would result in the death of other victims within a zone of danger. [The defendant] was charged only with the attempted murder of Joel F. and not with the attempted murder of others in the group on which [the defendant] fired his gun.' " (Id. at p. 138.)
Here, unlike the defendant in Stone (Stone, supra, 46 Cal.4th at p. 136), defendant was not charged with a single count of attempted murder of a named victim. Rather, he was charged with four counts of attempted murder, with each count naming as the intended victim one of the four occupants of the Tahoe. At least six shots were fired at the Tahoe, a number greater than the number of individuals in the confined space of the vehicle. While our high court determined in Stone that the "kill zone theory simply does not fit the charge or facts of [that] case" (id. at p. 138), the same cannot be said here.
Defendant asserts in his opening brief that the "holding in Stone is that the kill zone instruction did not apply when there is a named victim." This is not the holding in Stone. The holdings in Stone relevant here are that the trial court erred in instructing the jury with the kill zone theory of liability because the "kill zone theory simply does not fit the charge or facts of [that] case" (Stone, supra, 46 Cal.4th at p. 138), and that "a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind." (Id. at p. 140.) The kill zone theory of liability can apply where there is a named victim. Our high court, articulating the kill zone theory, stated that "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 [the Ford court] 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.' " (Bland, supra, 28 Cal.4th at p. 329, second italics added.) Nothing about the kill zone theory requires that the charging instrument refrain from naming a targeted victim, and Stone did not change this. The import of Stone is not, as asserted by defendant, that, "when the prosecution relies on the kill zone theory the information should not name any particular victim."
The inapplicability of the kill zone theory in Stone did not result from the fact that the sole count in that case named a particular victim, although that did prove problematic. As our high court stated: "In this case, the information specifically alleged that defendant intended to kill Joel F. This allegation was problematic given that the prosecution ultimately could not prove that defendant targeted a specific person rather than simply someone within the group. In hindsight, it would no doubt have been better had the case been charged differently." (Stone, supra, 46 Cal.4th at p. 141, italics added.) This theory of liability had no place in a case with facts such as Stone, where a defendant is charged with a single count of attempted murder for firing a single shot into a group of 10 people. (Id. at p. 136.)
The Stone court did determine that "a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind." (Stone, supra, 46 Cal.4th at p. 140.) However, as our discussion ante indicates, the Courts of Appeal are not in agreement on whether this rule of Stone even applies in a kill zone case. (Compare McCloud, supra, 211 Cal.App.4th at pp. 801-802 & fn. 6, with Falaniko, supra, 1 Cal.App.5th at p. 1243.)
Defendant is correct in asserting that, where a particular count charges attempted murder of a named individual, "there must be a showing of intent to kill that victim . . . ." As the kill zone case law makes clear, for the theory to apply, the defendant must intend to kill all of the would be victims, whether they are specifically targeted or not. (Bland, supra, 28 Cal.4th at p. 329 [" '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' "].) Defendant is partially correct in asserting that "guilt cannot be premised on an intent to kill other people within a kill zone." Guilt of attempted murder of a particular individual cannot be premised solely on an intent to kill others within the kill zone. As the case law makes clear, the defendant must harbor the specific and concurrent intent to kill the targeted victim, as well as everyone else in the kill zone: "Bland simply recognizes that a shooter may be convicted of multiple counts of attempted murder on a 'kill zone' theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the 'kill zone') as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm. [Citation.] As we explained in Bland, 'This concurrent intent [i.e., "kill zone"] theory is not a legal doctrine requiring special jury instructions . . . . 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.' " (Smith, supra, 37 Cal.4th at pp. 745-746.)
Furthermore we agree with the People that defendant misunderstands or misrepresents the prosecution's theory as reflected in the prosecutor's argument to the jury. The prosecutor's theory appears to be that defendant and his companions targeted and intended to kill Danny and/or Paul, the two individuals on the driver's side of the Tahoe who had engaged with them. The prosecutor argued to the jury: "we have got Danny in the front driver, we've got Paul in that other side. Those are the two that are really having the encounter with these three on the street, right. They're the ones that have their window down, they're getting punched, maybe saying things, asking what are you kids out here doing? They're the ones that are attracting the attention to these guys. [¶] So if you find that, in fact, the people on the street decided that they were going to try and kill those people by just lining that car and killing everybody in that kill zone in order to try and kill them, that's what we're talking about in relationship to this. So these people are clearly in that kill zone. They are all right there in that Tahoe together. [¶] So there's no requirement that they -- specifically you can find that they specifically intended to kill each one of them. But if you don't find that, certainly an easier way is they just intended to kill everyone in that car, kill those people and shoot that car and take out anybody that they needed to."
In addition to these statements, when discussing the kill zone theory to the jury, the prosecutor stated that "I want to talk about this concept in relationship to those other people in the car and whether or not you have to find that the shooter specifically intended to kill, for example, that little girl in her car seat. [¶] And the law says that you do not have to find that." We note here that the trial court instructed the jury with CALCRIM No. 200. In that instruction, the trial court stated, in pertinent part: "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorney[s'] comments on the law conflict[] with my instructions, you must follow my instructions." "The jury is presumed to have followed the trial court's instructions in the absence of any indication it was unwilling or unable to do so." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 196.) To the extent that the prosecutor's remarks could be deemed incorrect statements of law, we conclude that these statements are of no moment.
The counts charging defendant with attempted murder of Danny and Paul could be supported under a direct targeting theory. As to the other two victims, Bobby and Cornelia, regardless of whether they were identified by name in the relevant counts of the information, the kill zone theory of liability would be applicable as to them if defendant and his associates shot at the Tahoe, intending to kill Danny and/or Paul by means of killing everyone in the vehicle.
Although not argued by the prosecution, as we discuss post, the bullet hole in the windshield where Bobby's head had been just before he ducked supports an inference that Bobby was also a direct target.
Thus, contrary to defendant's contention in his opening brief, we conclude that the kill zone instruction did not eliminate the specific intent requirement for the convictions of attempted murder. In other words, we conclude that there is not a reasonable likelihood that the jury understood the charge as defendant asserts here. (Kelly, supra, 1 Cal.4th at p. 525.) We will address whether substantial evidence supported giving the instruction in part III.F.3. of the Discussion, post.
2. Absence of Definition of the Kill Zone
Defendant asserts in supplemental briefing that the trial court committed instructional error in failing to define the term " 'kill zone' " for the jury. Defendant maintains that the trial court did not "explain what the zone was, who was in it, or how far it extended." Defendant further asserts that, because the instruction failed to define the kill zone, it failed to adequately explain the specific intent required for conviction of attempted murder as to each of the four victims, and that it permitted conviction on an unlawful theory. We disagree.
As we have noted, our high court in Stone stated that the kill zone theory of liability " 'is not a legal doctrine requiring special jury instructions . . . . 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.' " (Stone, supra, 46 Cal.4th at p. 137; Smith, supra, 37 Cal.4th at p. 746.) Because our high court has concluded that the kill zone is not a legal doctrine requiring special jury instructions, by even greater force of reason, a trial court is not required to instruct the jury with a definition of the kill zone based on the circumstances of the case. Thus, because our high court has, in effect, rejected the notion that kill zone has a specialized definition beyond its ordinary meaning, we are bound by that precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The trial court was not required to issue a special jury instruction defining the kill zone.
The instruction issued to the jury here stated that the kill zone is the area in which defendant intended to kill everyone: "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." (CALCRIM No. 600, as given.) This defined "kill zone" as the "zone of harm" in which everyone is targeted. We conclude that no further definition was necessary in the context of this case, where the victims were all located within the confined space of a vehicle into which multiple gunshots were fired.
Our high court has expressly stated that "Bland's kill zone theory of multiple attempted murder is necessarily defined by the nature and scope of the attack." (Perez, supra, 50 Cal.4th at p. 232.) Thus, the definition and parameters of a kill zone in a given case gives rise to a fact-sensitive determination to be made by the finder of fact. It was for the jury to determine whether the evidence showed that all of the victims were within the zone of harm created by the perpetrators. While there may be cases in which the parameters or boundaries of the kill zone are not subject to ready determination, this is not such a case. Defendant makes much of potential variations in the nature and scope of the kill zone in this case. However, the determination of the limits of the kill zone here are not nearly as nuanced as defendant contends. In short, the confines of the Tahoe constituted the kill zone. The prosecutor's theory, as demonstrated by argument to the jury, was that defendant and his companions specifically intended to kill Danny and/or Paul, and attempted to accomplish the killing by means of killing everyone in the Tahoe (or they specifically intended to kill every individual in the Tahoe).
We also reject defendant's contention that, in the absence of a more detailed and specific definition of the kill zone, the jury instruction permitted conviction on an unlawful theory. Defendant seems to assert that the instruction allowed the jury to convict "on any of the four counts in three ways: (1) finding an intent to kill [Paul]; (2) finding an intent to kill [Danny]; or (3) finding an intent to kill everyone in the 'kill zone.' " This is incorrect. The instruction, as a whole, can be interpreted as permitting the jury to convict defendant of the attempted murder of Paul and/or Danny based on direct, specific intent to kill them, and Bobby and Cornelia based on the specific, concurrent intent to kill Paul and/or Danny by means of killing everyone in the Tahoe. It is also subject to an interpretation that the jury may convict defendant of attempted murder based on the specific intent to kill each individual in the Tahoe. These are both correct interpretations of law. Contrary to what defendant seems to suggest, the jury could not convict defendant of the attempted murder of any victim based solely on the intent to kill one of the other victims, and the jury was not instructed that it could. Arguing that the "finding of an intent to kill everyone in the [kill] zone was insufficient to substitute as a specific intent to kill the specified victims in counts 1 through 4" ignores: (1) the fact that the jury could convict defendant on count one (Paul) and count two (Danny) based on the specific intent to kill those individuals; (2) the instruction's language regarding the requirement of the concurrent intent to kill a specific victim or victims and at the same time harboring the intent to kill everyone in the kill zone; and (3) the fact that defendant could properly be found guilty on each count of attempted murder based on the specific intent to kill each individual in the kill zone named in each count. Additionally, inasmuch as defendant asserts that, based on the instruction, the jury could convict defendant on any of the four attempted murder counts based solely upon a finding of intent to kill Danny or an intent to kill Paul, we conclude that there is not a reasonable likelihood that the jury understood the charge in the manner defendant asserts here. (Kelly, supra, 1 Cal.4th at p. 525.)
3. Substantial Evidence Supporting the Kill Zone Instruction
Defendant contends that instruction on the kill zone theory of liability was not supported by substantial evidence. Defendant asserts that the firing of six shots did not support the reasonable inference that the shooter intended to kill everyone in the kill zone. We disagree.
The evidence established that, when Danny pulled the Tahoe up near defendant and his companions, they began to yell at Danny and Paul who were seated on the driver's side of the vehicle. Defendant faked a punch at the driver's-side window. Paul rolled his window halfway down and said there was no problem. Defendant jumped onto the Tahoe's running board, shook the vehicle, yelled, "Fuck you, I'll fade all you guys," which Paul understood to mean that he would fight them, and punched Paul on the cheek. As Paul began to open his door, defendant jumped off the vehicle, and one of defendant's companions began to shoot at the Tahoe. Danny stepped on the gas and "just took off." Six or more gunshots were fired at the Tahoe. Danny testified: "I'd say he emptied his clip. I don't know how many rounds it was, but he emptied his clip." Bobby, who ducked down when the shooting started, sat back up after the Tahoe sped away, and observed a hole in the windshield directly in front of him. He realized, "[t]hat could have been my head." Paul sustained two gunshot wounds, one to the chest and one to the leg.
At the scene of the shooting, police found six Winchester .380-caliber cartridge casings on the street near the gutter "relatively close to each other." A seventh Winchester .380-caliber cartridge casing was found about two houses to the west of the others.
Police inspecting the Tahoe after the incident discovered numerous bullet strikes on the vehicle. The location of the bullet holes in the vehicle, with three shots fired into the side of the vehicle and three more fired into the rear of the vehicle, supported the theory that the shooter kept firing the gun at the Tahoe as it drove away, trying to kill whoever was in the vehicle. On the driver's side of the Tahoe, there was a bullet hole on the driver's door above the door handle and another adjacent to the window seal at the front of the driver's-side back door. There was also damage to a door frame between the two doors. There was a bullet hole in passenger side of the front windshield. On the rear of the Tahoe, the driver's-side rear window was shattered, there was a bullet hole just below the rear door window and another one lower down on that swinging rear door. We have viewed the photographs of the Tahoe submitted as part of the clerk's augmented transcript on appeal. These exhibits support the trial testimony concerning the bullet marks on the Tahoe.
These photographs include People's Exhibit numbers 18, 20, 21, 23, 24, 26, 29, 30, 36, 37, 41, 42, 43, 44, 45, 46, 47, and 48.
According to defendant's own statement during a police interview, after the shooting, Her told defendant that he "shot and shit," and that " '[t]here's no more bullets.' " Also during an interview with police, defendant stated, of the occupants of the Tahoe: "It seemed like there was like -- the car was packed. Seemed like the car was packed when I saw it, like five heads in there."
We conclude that substantial evidence supported the inference that the shooter fired at the Tahoe attempting to kill one of its occupants, Paul or Danny, by means of shooting at the Tahoe and killing every one of its occupants. Substantial evidence would also support a theory that the shooter harbored the specific intent to kill every occupant of the Tahoe.
The facts of this case are not dissimilar to the circumstances in Bland, supra, 28 Cal.4th 313, described ante. In Bland, after an initial encounter, the defendant began shooting into the vehicle Kenneth Wilson was driving. (Id. at p. 318.) Wilson began to drive away as the defendant and the other individual continued to shoot at the vehicle. (Ibid.) Wilson died of a gunshot wound to the chest. (Ibid.) The two passengers were wounded, but both survived. (Ibid.) Our high court stated that the case "virtually compel[led]" the inference that the defendant harbored the specific intent to kill every person in the confines of the vehicle. (Id. at p. 330.) Our high court continued: "Even if the jury found that defendant primarily wanted to kill Wilson rather than Wilson's passengers, it could reasonably also have found a concurrent intent to kill those passengers when defendant and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone. Such a finding fully supports attempted murder convictions as to the passengers." (Id. at pp. 330-331, fn. omitted.) The same can be said for the circumstances of this case.
Viewed in a light most favorable to the conviction (Nguyen, supra, 21 Cal.App.4th at p. 528), there was substantial evidence which would support the convictions on the theory that the shooter harbored the specific intent to kill Danny and/or Paul by killing everyone in the Tahoe, or that he specifically intended to kill each individual in the Tahoe. Thus, we conclude that substantial evidence supported the trial court's instruction on attempted murder based on a kill zone theory.
IV. Eighth Amendment, Senate Bill 260 and California Constitution Claims
Defendant argues his sentence of 59 years to life in prison (34 years determinate plus 25 to life indeterminate) for non-homicide offenses committed when he was 16 years old is the functional equivalent of a life sentence without possibility of parole (LWOP) and therefore constitutes cruel and unusual punishment in violation of the federal and state Constitutions. We reject his Eighth Amendment claim under the federal prohibition against cruel and unusual punishment because Senate Bill No. 260 (2013-2014 Reg. Sess.) (S.B. 260) fixed the Eighth Amendment defect in California's sentencing scheme for juvenile offenders. To the extent that defendant makes a claim on appeal under California's constitutional ban against cruel or unusual punishment, we conclude that claim has been forfeited because defendant failed to make the argument in the trial court.
A. Background
The probation report dated July 15, 2011, recommended a sentence of seven years for the count one, attempted murder, plus 25 years to life for the enhancement for discharge of a firearm by a principal, with concurrent and stayed punishment on the other counts.
The prosecutor asked the court to impose consecutive sentences on all four counts of attempted murder, for a total sentence of 59 years to life. The prosecutor's sentencing memorandum argued such a sentence was not LWOP and therefore would not constitute cruel and usual punishment under (1) the United States Supreme Court authority precluding LWOP for juveniles in nonhomicide cases (see Graham v. Florida (2010) 560 U.S. 48 (Graham)), or (2) traditional proportionality principles considering the length of sentence given all the circumstances in a particular case. Defendant moved that the trial court find that each of the life sentences for the vicarious firearm enhancements violates the federal prohibition against cruel and unusual punishment as discussed in Graham.
At sentencing, the trial court stated it may have given the impression in prior discussions that defendant's claim of cruel and unusual punishment was persuasive, but that was because the court had mistakenly believed it would be required to sentence defendant to four indeterminate terms of 25 years to life for the firearm enhancement. The court also said it "would certainly recall" the sentence if the California Supreme Court issued an opinion within the time that the court retained jurisdiction to do so.
The court noted defendant had marked his forearm with a large-lettered tattoo of the word "Hmong," which he used to convey his affiliation with the HNS gang, and it was clear that defendant had "fully embraced the thug life." The court recognized that defendant was young and intoxicated, had no prior criminal record, was not the shooter, and may have considered himself provoked by the victims driving down the street with loud music. However, said the court, defendant provided the gun, instigated the shooting by jumping onto the car and punching a victim, and mere weeks after instigating a shooting where a person was shot, defendant was out with his gang, brandishing a gun while his friends kicked and beat another victim.
The trial court sentenced defendant to the determinate term of 34 years plus an indeterminate term of 25 years to life.
B. Analysis
1. The Eighth Amendment and Senate Bill 260
Defendant contends that his 59 years to life sentence violates the Eighth Amendment prohibition against cruel and unusual punishment because it amounts to the functional equivalent of an LWOP sentence. Defendant's contentions are based on Graham, supra, 560 U.S. 48, Miller v. Alabama (2012) 567 U.S. 460 , and People v. Caballero (2012) 55 Cal.4th 262. While this appeal was pending, the Legislature enacted sections 3051 and 4801, which provide a meaningful opportunity for parole by establishing a parole eligibility mechanism for youthful offenders and requiring that the attributes of youth be considered in determining whether to grant parole.
With exceptions not applicable here, section 3051 (added by Stats. 2013, ch. 312, § 4, eff. Jan. 1, 2014) provides an opportunity for a juvenile offender to be released on parole by requiring the Board of Parole Hearings (the Board) to conduct "youth offender parole hearing[s]" on a set schedule depending on the length of the inmate's sentence. Specifically, youth offender parole hearings are to be held during the 15th year of incarceration for an inmate serving a determinate sentence (§ 3051, subd. (b)(1)), during the 20th year of incarceration for an inmate serving a life term less than 25 years to life (§ 3051, subd. (b)(2)), and during the 25th year of incarceration for a prisoner serving a life term of 25 years to life (§ 3051, subd. (b)(3)). Thus, "25 years is the maximum amount of time that a juvenile offender may serve before becoming eligible for parole." (Franklin, supra, 63 Cal.4th at p. 278.) Section 4801, subdivision (c), directs that in determining suitability for parole, the board "shall give great weight to the diminished culpability of youth as compared to adults, the hallmark features of juveniles, and any subsequent growth and increased maturity of the prisoner."
Subsequent to the enactment of the provisions in sections 3051 and 4801, the California Supreme Court decided Franklin, supra, 63 Cal.4th 261, which held that these provisions render moot Graham/Miller/Caballero cruel and unusual punishment claims. (Franklin, at pp. 268, 276-277, 280.) However, the Franklin court held that defendants should be granted a limited remand to make a record relevant to the eventual youth offender parole hearing if they did not have an opportunity to do so at the original sentencing proceedings. (Id. at pp. 269, 284; see also People v. Rodriguez (2018) 4 Cal.5th 1123, 1130-1131.) "While the defendant could place on record evidence that might be pertinent at his eventual youth offender parole hearing, the People could likewise put on record evidence demonstrating his 'culpability or cognitive maturity, or otherwise bear[ing] on the influence of youth-related factors.' " (People v. Costella (2017) 11 Cal.App.5th 1, 9.) The record here demonstrates that the parties did not have sufficient opportunity to make a record on this matter. Accordingly, the matter must be remanded so that the trial court may conduct a Franklin hearing.
2. California Constitutional Prohibition Against Cruel or Unusual Punishment
In arguing that his sentence is unconstitutional, defendant cites People v. Dillon (1983) 34 Cal.3d 441. To the extent that defendant intends to contend by this citation that his sentence also violates California's prohibition against cruel or unusual punishment, that argument is forfeited because he did not make it in the trial court. (People v. Vallejo (2013) 214 Cal.App.4th 1033, 1045; People v. Norman (2003) 109 Cal.App.4th 221, 229: People v. Kelley (1997) 52 Cal.App.4th 568, 583.) Determination of the applicability of Dillon in a particular case is "fact specific," and thus the objection must be raised in the trial court. (Norman, at p. 229.)
V. Section 654 Sentencing Error
At sentencing, referring to counts five through nine (discharging a firearm from an occupied vehicle and assault with a semi-automatic firearm), the trial court stated: "I think all of the others are 654," and "I will order that those may not be sentenced because they cannot be -- they are part and parcel of Counts 1 through 4." (Italics added.) The abstract also indicates a section 654 stay on these counts, but does not indicate what sentence was stayed. This was error.
Section 654, subdivision (a), provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." It is well settled that when a court determines that a conviction is subject to section 654, it must impose a full-term sentence and then stay the execution of that sentence, the stay to become permanent upon defendant's service of the portion of the sentence not stayed. (People v. Duff (2010) 50 Cal.4th 787, 796; People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198; People v. Alford (2010) 180 Cal.App.4th 1463, 1469 (Alford); People v. Salazar (1987) 194 Cal.App.3d 634, 640 (Salazar); People v. Niles (1964) 227 Cal.App.2d 749, 755-756.) "This procedure ensures that the defendant will not receive 'a windfall of freedom from penal sanction' if the conviction on which the sentence has not been stayed is overturned." (Salazar, at p. 640.) It is improper to simply stay the imposition of sentence. (Duff, at pp. 795-796; Alford, at p. 1468; 1 Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2017) § 13:10, pp. 13-50 to 13-52.) The trial court here imposed an unauthorized sentence by failing first to impose a sentence on counts five through nine and then stay execution of those sentences. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327.)
In Alford, this court concluded that the "futility and expense" of remand militated against sending the case back to the trial court for resentencing where this court could determine the sentence that the trial court, in the exercise of its discretion, "undoubtedly" would have imposed. (Alford, supra, 180 Cal.App.4th at p. 1473.) However, our statutory authority to modify an unauthorized sentence (§ 1260) does not authorize us to substitute our judgment for that of the trial court with respect to discretionary sentencing decisions. (People v. Lawley (2002) 27 Cal.4th 102, 172; People v. Hines (1997) 15 Cal.4th 997, 1080.) Here, on this record, we cannot say what sentence the trial court "undoubtedly" would have imposed on counts five through nine. And in any event, we are ordering a remand for a transfer hearing pursuant to Proposition 57 and, if the juvenile court determines transfer to criminal court is appropriate, a Franklin hearing and consideration of whether to strike or dismiss the firearm enhancements. (See part IV. of the Discussion, post.) Accordingly, we shall remand the matter to the trial court so the court may select and impose a full-term sentence on these counts plus the applicable enhancement sentence and then stay execution of those sentences.
VI. Senate Bill 620
While this case was pending on appeal, the Governor signed Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620), effective January 1, 2018. Following the enactment of Senate Bill 620, section 12022.53 now includes language stating: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) Section 12022.5 now contains an identical provision. (§ 12022.5, subd. (c).) Prior to the enactment of Senate Bill 620, and when defendant was sentenced, courts did not have discretion to strike or dismiss these enhancements. The former language of these sections explicitly provided that the courts "shall not strike" enhancement allegations under those sections. (Former §§ 12022.5, subd. (c), 12022.53, subd. (h).)
We granted defendant's request for supplemental briefing on the impact of Senate Bill 620. In his supplemental opening brief, defendant asserts that his case must be remanded to the trial court to permit the court to exercise its newly authorized discretion to strike his section 12022.53 firearm enhancements. Defendant asserts that the amendment to that section which now grants sentencing courts the discretion to strike or dismiss section 12022.53 firearm enhancements applies retroactively to his case based on legislative intent and under the rule in Estrada, supra, 63 Cal.2d 740. Defendant also asserts that retroactive application of Senate Bill 620 is required under equal protection principles.
The People concede that the amendments to sections 12022.5 and 12022.53 should be afforded retroactive application to nonfinal judgments and that they should apply to this case. The People also agree that the matter should be remanded to the trial court for the limited purpose of affording the trial court the opportunity to consider whether to exercise its discretion to strike the section 12022.53 enhancements.
We accept the People's concession and conclude that the effects of Senate Bill 620 apply retroactively. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) Furthermore, the People here do not contend that the sentencing minutes clearly demonstrate that the trial court would not exercise its discretion to strike the enhancement if it had such discretion, and that therefore "no purpose would be served in remanding for reconsideration." (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) We further note there is nothing in the record supporting for such a contention. Under these circumstances, we agree that the matter must be remanded for the trial court to consider whether to exercise its discretion to strike the section 12022.53 enhancements.
DISPOSITION
We conditionally reverse the judgment and remand the matter to the juvenile court with direction to conduct a transfer hearing no later than 90 days from the filing of the remittitur.
If the juvenile court determines at the transfer hearing that it would not have transferred defendant to a court of criminal jurisdiction, defendant's criminal convictions and enhancements shall be deemed to be juvenile adjudications as of that date, and the juvenile court shall conduct a dispositional hearing, including consideration of whether to dismiss or strike the section 12022.53 firearm enhancements.
If, at the transfer hearing, the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction, the judgment shall be reinstated as of that date. In that case, the criminal court is then directed to: impose full-term sentences on counts five, six, seven, eight, and nine, and stay execution of those sentences pursuant to section 654; consider whether to exercise its discretion to strike the section 12022.53 firearm enhancements; and conduct a Franklin hearing. Additionally, the criminal court is directed to amend the abstract of judgment to reflect these changes; to indicate that the firearm enhancements on counts one through five are pursuant to section 12022.53, subdivisions (c), (d), and (e)(1), unless they are struck; and to delete reference to the section 12022.5 enhancements on counts six through nine because those enhancements were not presented to the jury. The criminal court is directed thereafter to prepare an amended abstract of judgment reflecting all modifications and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment shall be affirmed.
While we express no opinion on whether the court should exercise its discretion in this regard, we do note that, in the event that the trial court elects to exercise its discretion to strike the section 12022.53 enhancements, a sentence for the section 186.22, subdivision (b)(1), gang enhancements would no longer be precluded. (See generally People v. Brookfield (2009) 47 Cal.4th 583.) Moreover, section 654, subdivision (a), requires that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment . . . ." Should the trial court exercise its discretion and strike the section 12022.53 enhancements, the provisions that would provide for the longest potential term of imprisonment would be count five, discharging a firearm at an occupied vehicle (§ 246) with the gang enhancement (§ 186.22, subd. (b)(1)). The sentence the trial court would thus be required to impose on count five would be 15 years to life. (§ 186.22, subd. (b)(4)(B).) Under these circumstances, the trial court would not stay execution of the sentence imposed on count five pursuant to section 654.
We note that in the original abstract, the trial court failed to note that the section 12022.53, subdivisions (c) and (d), enhancements were pursuant to subdivision (e)(1), imposing vicarious liability on a principal when there is a section 186.22, subdivision (b), enhancement finding. Reference to subdivision (e)(1) tells prison and parole officials that defendant was not the shooter and thus, the abstract should be noted accordingly. --------
MURRAY, J. We concur: BLEASE, Acting P. J. MAURO, J.