Opinion
H045500
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. FABIAN ALVARADO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161207A)
Defendant Fabian Alvarado appeals after a jury found him guilty of first degree murder (Pen. Code, § 187, subd. (a)), two attempted murders (§§ 664, 187, subd. (a)), and shooting at an inhabited dwelling (§ 246). The jury also found true the allegations that Alvarado committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1), (5)) and that he or a principal personally and intentionally discharged a firearm during the commission of the murder (§ 12022.53, subd. (d)) and the attempted murders (§ 12022.53, subd. (c)). The trial court sentenced Alvarado to 120 years to life.
Statutory references are to the Penal Code unless otherwise indicated.
Alvarado contends there is insufficient evidence to support one of the attempted murder convictions, the trial court erred when it imposed a 15-year minimum parole eligibility period for each count of attempted murder under section 186.22, subdivision (b)(5), and insufficient evidence supports the jury's determination that Alvarado committed the offenses for the benefit of a criminal street gang.
In an opinion filed May 7, 2019, we ordered that the judgment be modified to stay the 15-year minimum parole eligibility terms imposed on the attempted murders pursuant to section 186.22, subdivision (b)(5) and affirmed the judgment as modified. Alvarado petitioned the California Supreme Court for review. On August 14, 2019, the California Supreme Court granted review, S256215, and transferred the matter to this court with directions to vacate our decision and to reconsider the cause in light of People v. Canizales (2019) 7 Cal.5th 591 (Canizales). We have vacated our prior decision by separate order.
We have reconsidered the cause in light of Canizales. For the reasons set out below, we reverse the judgment. With respect to one of the attempted murder counts, we conclude that insufficient evidence supports each of the theories on which the jury was instructed—that Alvarado either intended to kill the specific victim or that he intended to kill everyone in the particular kill zone. In light of this conclusion, Alvarado may not be retried for that crime, and we remand the matter to the trial court with directions to dismiss that count and resentence Alvarado. In addition, we order the trial court to stay the 15-year minimum parole eligibility term imposed pursuant to section 186.22, subdivision (b)(5) on the remaining attempted murder conviction. We otherwise affirm Alvarado's convictions.
I. FACTS AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
1. The Shooting
Mario Doe lived with his wife, Lizette, and their two young children in a house on Block Avenue in Salinas. Also living in the home were Lizette's parents, Javier and Elizabeth, her brother, Anthony, her brother, José, José's wife, Nancy, and their two kids.
There was a gang presence in the neighborhood. Mario did not have any experience with gangs, but José associated with the Sureños beginning in middle school and continuing through high school. José went to Mexico when he was 19, and when he returned to Salinas when he was around 23, he no longer associated with the gang.
On the afternoon of May 8, 2016, Mario was working on two Jeeps, a gray Jeep and a green Jeep, parked in the driveway in front of the garage. When José and his family returned home around 3:30 p.m., José began helping Mario. José and Mario worked on the cars together for the rest of the day and into the evening.
At some point later that night, Javier went outside to see if Mario and José had finished working on the cars so that he could put his own vehicle away. Javier began chatting with José and Mario outside. Lizette then left the house around 10:45 p.m. to go to Target to check her work schedule. When Lizette left, Elizabeth, Nancy, Nancy and José's children, and Lizette's and Mario's children were inside the house. Javier, José, and Mario were in the driveway. Javier was facing the garage and sitting in front of Mario, who was sitting between the two Jeeps in the driveway. José was underneath the Jeep parked on the left side of the driveway.
Javier saw someone walk up the driveway between the two Jeeps, approach Mario from behind, and stand beside him. Javier was about a foot and a half away from the person, who was wearing a gray hooded sweatshirt with the hood pulled up and dark pants. Javier could not see the individual's face. Javier then heard a shot fire "up close" to Mario. Javier immediately moved into a corner on the front right side of the garage and heard lots of gunshots. Javier could not see Mario at that point, but José had come out from underneath the Jeep he had been working on and was moving around the Jeep on the left side of the driveway dodging bullets as he was being shot at. The shooter walked up and down the driveway between the Jeeps, shooting at José. One of the gunshots passed by Elizabeth as she was standing inside the front door holding her grandson. The shot "hit the living room."
At some point there was a pause in the shooting, and Javier "peeked" and saw a blue Expedition with a driver inside waiting for the shooter. The gunman moved closer to the street and the shooting resumed. Then, everything went silent. Javier exited the garage and saw the shooter take off in the car, while José ran inside the house. Mario was "practically at [Javier's] feet." Javier stayed there looking at Mario, and all of the other family members came outside. José came out of the house with a gun and started running after the Expedition while shooting, but the vehicle was already on the next block.
Police arrived shortly after the shooting. Mario was underneath a Jeep and wasn't breathing. Police administered CPR.
Mario had been shot four times and died from multiple gunshot wounds. One gunshot entered his left upper back and exited his right upper back near his neck. A second gunshot entered his left lower chest and exited his left upper chest. The third gunshot was to Mario's right upper abdomen, and a 9-millimeter bullet was recovered in Mario's left shoulder. The bullet had traveled through Mario's colon, stomach, liver, heart, left lung, and a left rib. This bullet wound was sufficient to cause death within a matter of minutes. Mario also had a graze gunshot wound to the skin on his left calf.
2. The Police Investigation
Police recovered between nine to twelve 9-millimeter casings at the scene, all but two of which were fired from the same gun. Police found most of the casings near Mario's body and between the Jeeps in the driveway, but two of the casings were found in the street. Casings were recovered under Mario's head, near Mario's head, and near his feet. Police located bullet strikes to the following locations: a gutter on the front of the garage, the garage's stucco, a fence, a Ford F-150 parked in the street, the green Jeep's license plate, the gray Jeep's driver's side windshield, and a metal door leading into the residence from the garage. A fired bullet was found inside the home. The green Jeep's driver's side window and rear window were shattered, as was the rear window of a red Mustang parked inside of the garage.
Salinas Police Detective Rodolfo Roman collected video footage from nearby residential surveillance cameras. Detective Roman observed a Ford Expedition in footage from a Block Avenue home's camera starting at approximately 10:24 p.m. The vehicle passed the Block Avenue residence again at 10:31 p.m. and 10:40 p.m. At 10:44 p.m., the vehicle stopped in the middle of the road, its headlights turned off, and the interior light and running board lights illuminated. Detective Roman saw someone get out of the rear passenger seat and run behind the vehicle toward Mario's house. The suspect was wearing a gray hooded sweatshirt and dark colored pants. The suspect was out of the camera's range for about 10 seconds before he could be seen running back to the vehicle. As he ran back, he turned around and fired twice with both hands on the gun. The vehicle sped away as soon as the shooter got in.
The video showed that the vehicle was dark in color and had side running boards, missing chrome covers on its wheels, and reflectors on each side of the rear license plate. When the interior light came on, Detective Roman could see an object hanging from the car's rearview mirror.
Video surveillance footage from a residence on Shires Way first showed the vehicle drive by at 10:31 p.m. The vehicle passed by again at 10:44 p.m. Detective Roman observed that the vehicle had paint damage by its front and rear passenger doors.
The day after the shooting, Salinas Police Detective Gabriel Gonzalez was driving around the neighborhood trying to get video surveillance footage from other residences when he spotted a Ford Expedition that looked like the vehicle in the video footage. The Expedition had running boards, reflective strips on the bumper, and some paint damage consistent with the vehicle in the video footage. The detective initiated a traffic stop and contacted Alvarado in the driver's seat. A round item was hanging from the rearview mirror that was similar to the item seen in the video. Alvarado was wearing a gray hooded sweatshirt, a gray t-shirt, black sweatpants, red shorts, and gray and black Nikes. Alvarado's sweatshirt later tested positive for gunshot residue.
After collecting additional video surveillance footage, police were able to determine that the suspect vehicle passed the victims' home nine times, beginning at 4:12 p.m. The vehicle stopped near the victims' house on the tenth trip. Some of the video footage showed the driver wearing a gray shirt. Other video showed the driver wearing a gray, long-sleeved item of clothing.
Police searched Alvarado's residence in Salinas. A 9-millimeter Ruger handgun was found in his parents' bedroom closet. The gun's magazine contained 10 live rounds of 9-millimetter ammunition. Police also located a loaded .40 caliber Ruger semiautomatic handgun and a loaded .357 Taurus magnum revolver in a black gun case on the closet floor. The 9-millimeter and .40 caliber handguns were unregistered; the .357 magnum was registered to someone in Fresno who was unaware the firearm was missing. Police found 21 rounds of 9-millimeter ammunition, eight rounds of .38 special ammunition, 44 rounds of .22 caliber ammunition, one round of unknown caliber, two 9-millimeter magazines, a magazine loader, and a digital scale in a nylon lunch container on the closet floor.
Police searched Alvarado's cell phone. Alvarado had several images of firearms on his phone. One was a May 6, 2016 photograph of the 9-millimeter Ruger handgun found at Alvarado's residence. The phone also contained multiple images pertaining to the Norteño and Sureño gangs and several images of a "SK" tattoo. One image was of the local Norteño rapper Yantz and the other was of a red flag with a huelga bird. Another photo depicted Alvarado making a "B" symbol with his hand. The letter "B" is commonly associated with the Boronda and Santa Rita Bahamas Norteño criminal street gangs. There was also an image from a May 9, 2016 morning news program about a deadly shooting. Listed in Alvarado's phone contacts was the user name "GUNNA400BLK," which was attributed to Siake Tavale. The Boronda gang is commonly associated with the 400 block and the term "gunna" means possessing or using a weapon. There was also an Instagram account with the user name "831_Shooter" and a Snapchat account with the user name "Shooter_400" and the account name "Shooter." "831" is the local area code. It was unclear who those accounts belonged to.
In 2016, Alvarado's mother, Rosalba Hernandez, owned a blue Expedition. The vehicle had reflectors on the back bumper and also had some paint damage. Hernandez identified the Expedition to the police in a photograph. When Hernandez was interviewed by the police on May 11, 2016, she stated that Alvarado had left her residence sometime after 10:00 p.m. on May 8 and returned sometime after 10:45 p.m. Hernandez told the police that Alvarado put the firearms in her closet on May 9.
A criminalist later determined that the bullet recovered from Mario's body was fired from the 9-millimeter Ruger found in Alvarado's mother's closet.
3. Gang Evidence
On February 13, 2013, when Alvarado was 14 years old and a student at Harden Middle School in Salinas, he punched another student in the face 10 times. The victim's notebook had markings on it that consisted of three dots and the letter "S." Alvarado's notebook had the letters "NS" in it. "NS" stands for North Salinas and is used by Norteños to define their location in Salinas. Alvarado told the officer who responded to the incident that he "hangs out with the Norteños" and that he avoids associating with Sureños. Alvarado denied that the assault was gang-related.
On September 16, 2013, an attempted armed robbery occurred at Classic Coachworks in Monterey. Alvarado was identified by the business owner as the robber who pointed a gun at him and at a coworker's head. Police apprehended Alvarado in the getaway vehicle shortly after the robbery occurred. The other individual in the car was Fabian Robledo. Both Alvarado and Robledo had the same tattoo of the letter "B." Robledo also had "NSB" tattooed on his lower abdomen. Alvarado denied being involved in the robbery and associating with a criminal street gang but admitted being in possession of a handgun.
Salinas Police Officer Vicky Burnett registered Alvarado as a gang member in November 2015. Alvarado told Officer Burnett that he had been a Norteño gang member since he was 15 years old and "claimed the Northside Boronda." Alvarado said there were approximately 2,000 Norteño gang members in Salinas and 50 of them claimed Northside Boronda. According to Alvarado, Norteños engaged in robberies, murders, and shootings. Alvarado stated that Norteños consider Sureños their rivals.
Salinas Police Detective Derek Gibson testified for the prosecution as an expert on the Norteño and Sureño criminal street gangs. Detective Gibson was assigned to gang investigations and served three years on the Monterey County Joint Gang Task Force. He had received over 182 hours of formal gang recognition and investigation training. Detective Gibson had investigated "[h]undreds" of gang-related crimes, including narcotic sales, firearm possession, murders, attempted murders, assaults with a deadly weapon, burglaries, robberies, and carjackings. Detective Gibson stated that he "accumulate[d] gang intelligence" from active gang members and gang dropouts, speaking with other Monterey County and Salinas police officers, reading "debriefs done by other officers on active gang members and dropout gang members," and talking to victims, suspects, and confidential informants in conducting his own investigations. Detective Gibson had interviewed "[h]undreds" of gang members and had personally investigated at least 100 crimes committed by the Norteños and at least five crimes involving the Northside Boronda.
According to Detective Gibson, over a thousand individuals claim membership in the Norteño criminal street gang in Salinas, and the gang has five active subsets that operate there. A subset is a street gang operating within a neighborhood. The Norteño subsets in Salinas work together.
The Norteño gang abides by the 14 bonds, which are the bylaws created by the Nuestra Familia prison gang. The Norteños and their subsets identify with the color red, the huelga bird, and the number 14 because "N" is the fourteenth letter of the alphabet. Norteños gang members are rivals with Sureños.
The Northside Boronda is one of the Norteño subsets operating in Salinas and had at least 50 members in May 2016. In addition to the Norteño symbols, the Northside Boronda subset identifies with the "B" from the Budweiser logo and the number 400, which stands for the 400 block of a street in the Boronda neighborhood of Salinas. In Detective Gibson's opinion, in May 2016, the Norteños and the Northside Boronda were ongoing organizations or associations and their members individually or collectively engaged in a pattern of criminal gang activity. "[A]s of May 2016," the "primary crimes" committed by the Monterey County Norteños and the Northside Boronda were homicide, attempted homicide, robbery, carjacking, drug sales and possession, and firearm possession.
Detective Gibson testified regarding several predicate crimes committed by individuals the detective opined were members of the Northside Boronda subset. Detective Gibson assisted in the investigation of a robbery committed on November 29, 2014 by Juan Gomez. On August 7, 2015, Gomez pleaded no contest to the robbery and admitted that he committed the offense for the benefit of a criminal street gang. Detective Gibson opined that Gomez was a member of the Northside Boronda subset. Detective Gibson testified that he was familiar with Bobby Carrillo. Carrillo possessed a concealed firearm and participated in a criminal street gang in June 2013, and pleaded no contest to the offenses on August 9, 2013. In Detective Gibson's opinion, Carrillo was a member of the Northside Boronda subset. Detective Gibson also stated he was familiar with Fabian Robledo. On December 5, 2013, Robledo pleaded no contest to committing an attempted robbery and participating in a criminal street gang on September 16, 2013. In the detective's opinion, Robledo was a member of the Northside Boronda subset at the time of the crime. Detective Gibson testified he was familiar with Dakota Casperson. On March 2, 2007, Casperson pleaded no contest to possessing a controlled substance for sale for the benefit of a criminal street gang on January 9, 2007. In Detective Gibson's opinion, Casperson was a member of the Northside Boronda subset. Detective Gibson was also familiar with Antonio Barajas. On October 19, 2004, Barajas pleaded no contest to possessing a controlled substance for sale for the benefit of a criminal street gang while armed with a firearm on June 15, 2004. In Detective Gibson's opinion, Barajas was a member of the Northside Boronda subset. The prosecution moved the conviction records pertaining to these crimes into evidence.
Alvarado has a tattoo of the letters "SK" on his chest, which in the gang community stands for "scrap killer." "Scrap" is a derogatory term Norteños use for Sureños. Based on Detective Gibson's training and experience, in order to "earn" the "SK" tattoo, an individual must kill a rival or a Sureños gang member. Alvarado also has a "B," similar to the "B" from the Budweiser logo, tattooed on his left forearm. The "B" signifies membership in the Northside Boronda subset. In addition, Alvarado has four dots burned into his left arm. The tattoos indicated to Detective Gibson that Alvarado is a member of the Northside Boronda subset. Detective Gibson testified that Alvarado has the gang moniker "Shooter," which means Alvarado is willing to carry and use a gun.
Detective Gibson reviewed the reports of Alvarado's fight in middle school on February 9, 2013. When asked a hypothetical question that mirrored the facts of the fight, Detective Gibson opined that the perpetrator was willing to fight rival gang members on behalf of the Norteños and to bolster his own reputation. Detective Gibson also reviewed the reports from an attempted armed robbery on September 16, 2013. When given a hypothetical that mirrored the facts of the attempted robbery at Classic Coachworks, Detective Gibson opined that the facts signified that the perpetrator was willing to commit a crime in association with another Norteño member to benefit the Norteño street gang. Detective Gibson stated that based on his knowledge of Robledo and Alvarado, the attempted robbery showed they were committing a crime in association with one another.
When given a hypothetical based on the facts of this case, Detective Gibson opined that the shooting was committed to benefit the Norteño criminal street gang because it involved targeting a rival and would have bolstered the gang's reputation for violence and promoted the gang.
Detective Gibson opined that Alvarado was an active participant in the Norteño criminal street gang and the Northside Boronda subset based on his tattoos, his moniker, his associations, and the crimes he committed to benefit the gangs, including confronting rival gang members.
B. Defense Evidence
Alvarado called two witnesses in his case-in-chief who had already testified for the prosecution, Javier and Detective Gonzalez. Alvarado did not testify on his own behalf.
Javier testified that he told Detective Gonzalez that he saw a vehicle that looked like a Ford Expedition or Ford Explorer start driving through the neighborhood two months before the shooting and that the driver was alone in the vehicle. Javier described the driver to the detective as a dark-skinned man with his hair combed back. Javier was unable to identify the driver when the detective presented him with six photographs.
Detective Gonzalez testified that he interviewed Javier twice. During the second interview, Javier stated that he may have seen the vehicle involved in the shooting on prior occasions in the neighborhood. The vehicle was in "stock condition," without any damage or reflective strips. Javier described the driver as a dark-skinned male with wavy, slicked-back hair. Javier told the detective that he saw the vehicle drive by his residence over the course of about eight days. Detective Gonzalez presented Javier with a photographic lineup of six individuals, including Alvarado. Javier was unable to make an identification.
C. Charges, Verdict, and Sentence
Alvarado was charged with first degree murder (§ 187, subd. (a); count 1), three counts of willful, deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a); counts 2-4), and shooting at an inhabited dwelling (§ 246; count 5). It was also alleged that Alvarado committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)) and that he personally used a firearm during the commission of the murder and the attempted murders (§ 12022.5, subd. (a)). In addition, regarding the murder, it was alleged that Alvarado personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). Regarding the attempted murders, it was alleged that a principal personally and intentionally used and discharged a firearm (§ 12022.53, subds. (b), (c), (e)(1)). During trial, the trial court granted the prosecution's motion to dismiss the section 12022.5, subdivision (a) firearm allegations.
A jury found Alvarado guilty of first degree murder (count 1), two counts of willful, deliberate, and premeditated attempted murder (counts 2 and 4), and shooting at an inhabited dwelling (count 5). The jury also found Alvarado committed the offenses for the benefit of a criminal street gang. Regarding the murder, the jury determined that Alvarado or a principal personally and intentionally discharged a firearm causing death. Regarding the attempted murders, the jury found that Alvarado or a principal personally and intentionally discharged a firearm. The jury acquitted Alvarado of one count of attempted murder (count 3).
The trial court sentenced Alvarado to an aggregate term of 120 years to life, comprised of an indeterminate term of 25 years to life for the murder plus an indeterminate term of 25 years to life for the discharge of a firearm causing death and two indeterminate terms of 15 years to life for the attempted murders plus two determinate terms of 20 years for the discharge of a firearm. The court imposed and stayed an indeterminate term of 15 years to life for shooting at an inhabited dwelling.
II. DISCUSSION
A. Sufficiency of the Evidence Supporting the Attempted Murder of Javier
In supplemental briefing filed post-Canizales, Alvarado contends that his conviction of the attempted murder of Javier must be reversed because there is insufficient evidence to support either theory of guilt, namely, that Alvarado intended to kill Javier specifically or that he intended to kill everyone in the kill zone to ensure Mario's death. The Attorney General counters that both theories are supported by sufficient evidence and, alternatively, that even if there is insufficient evidence to support the kill zone theory of liability, the conviction should be upheld because the alternate theory error was harmless beyond a reasonable doubt.
1. Trial Court Proceedings
Alvarado was charged with the attempted murder of José (count 2), Elizabeth (count 3), and Javier (count 4). The trial court instructed the jury on each count of attempted murder using a modified version of CALCRIM No. 600, the pattern instruction on attempted murder. Regarding count 4, the trial court instructed the jury: "The defendant is charged in Count 4 with the attempted murder of Javier Doe. To prove that the defendant is guilty of attempted murder of Javier Doe the People must prove that, one, the defendant took at least one direct, but ineffective step, toward killing Javier Doe; and, two, the defendant intended to kill Javier Doe. [¶] . . . [¶] A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or kill zone. [¶] In order to convict the defendant of the attempted murder of Javier Doe as charged in Count 4, the People must prove that the defendant not only intended to kill Mario [Doe], but also either intended to kill Javier Doe as charged in Count 4, or intended to kill everyone within the kill zone. [¶] If you have a reasonable doubt whether the defendant intended to kill Javier Doe as charged in Count 4, or intended to kill Mario [Doe] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Javier Doe as charged in Count 4."
2. Legal Principles
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) When a defendant is charged with multiple counts of attempted murder, the prosecution must prove that the defendant specifically intended to kill each victim of each count charged. " '[G]uilt of attempted murder must be judged separately as to each alleged victim.' " (People v. Stone (2009) 46 Cal.4th 131, 141; see also People v. Perez (2010) 50 Cal.4th 222, 230 (Perez).) "[T]his is true whether the alleged victim was particularly targeted or randomly chosen." (Stone, at p. 141; Perez, at p. 230.) "[I]ntent to kill does not transfer to victims who are not killed, thus 'transferred intent' cannot serve as a basis for a finding of attempted murder." (Perez, at p. 232; People v. Bland (2002) 28 Cal.4th 313, 326-331 (Bland).)
However, " '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.' " (Perez, supra, 50 Cal.4th at p. 232.) " 'Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone.' " (Bland, supra, 28 Cal.4th at p. 330.)
The California Supreme Court recently clarified the boundaries of the kill zone theory in Canizales. The court held: "[T]he kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm. [¶] In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target." (Canizales, supra, 7 Cal.5th at p. 607.)
The court "emphasize[d] that going forward trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory." (Canizales, supra, 7 Cal.5th at p. 608.) The court "anticipate[d] there will be relatively few cases in which the theory will be applicable and an instruction appropriate. Trial courts should tread carefully when the prosecution proposes to rely on such a theory, and should provide an instruction to the jury only in those cases where the court concludes there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm. The use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction." (Ibid., italics omitted.)
3. Standard of Review
In determining a sufficiency of the evidence claim, we ask " ' "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' [Citations.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for ' "substantial evidence—that is, evidence which is reasonable, credible, and of solid value" ' that would support a finding beyond a reasonable doubt." (People v. Banks (2015) 61 Cal.4th 788, 804, italics omitted (Banks).) " '[A] reasonable inference . . . "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." ' " (People v. Davis (2013) 57 Cal.4th 353, 360.)
" 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " (People v. Thomas (1992) 2 Cal.4th 489, 514.) Reversal is warranted only where it clearly appears that "upon no hypothesis whatever is there sufficient substantial evidence" to support the conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.) The same standard of review applies when a conviction rests on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
4. Insufficient Evidence to Support the Kill Zone Theory
The jury was instructed that it could convict Alvarado of the attempted murder of Javier if it found that Alvarado intended to kill everyone in the zone of fatal harm with Mario as the primary target. We determine there is insufficient evidence to sustain Alvarado's conviction of the attempted murder of Javier on this kill zone theory of liability. (See Canizales, supra, 7 Cal.5th at p. 607; see also Cole v. Arkansas (1948) 333 U.S. 196, 202 [a defendant is "entitled to have the validity of [his] convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court"]; People v. Kunkin (1973) 9 Cal.3d 245, 251 ["We, of course, cannot look to legal theories not before the jury in seeking to reconcile a jury verdict with the substantial evidence rule"].)
The evidence established that immediately before the shooting, Javier was sitting in the driveway area talking with Mario and José while they worked on two Jeeps parked side by side in the residence's driveway. A green Jeep was parked on the left side of the driveway facing the garage. A gray Jeep was parked on the right side of the driveway. The gray Jeep had been backed into the driveway such that the front of the Jeep was facing the street. Both Jeeps were pulled up to the edge of the garage and the garage door was open. A red Mustang was parked inside the garage on the left side. A door leading from the garage into the residence was located on the left side of the garage's rear wall.
Javier testified that he was facing the garage and sitting in front of Mario, who was sitting between the two Jeeps in the driveway, when the gunman approached Mario and shot him. José was underneath the green Jeep parked on the left side of the driveway. "[W]hen [the shooter] came in, he walked in between both Jeeps and stood right next to Mario." Mario was "shot up close. The first shot that [the gunman] fired was the one that hit him." Mario was shot twice more and also suffered a graze bullet wound.
After the first shot sounded, Javier immediately hid in a corner on the right side of the garage beside the open garage door next to the rear of the gray Jeep. Javier heard "[l]ots of gunshots," although he could not say exactly how many. José "was moving around on the [left] side of the [green] Jeep . . . dodging the bullets" as the gunman walked between the two Jeeps trying to shoot him.
At some point the shooter "paused for a while." Javier "peeked and [] was able to see the [getaway] car that was waiting for him." Javier went back to his hiding spot in the right front corner of the garage. After the pause, the shooter continued firing, but Javier was unable to say how many shots he heard. The shooter moved closer to the street and Javier heard more shots. Then everything went silent. Javier came out again to see if the shooter had left, but he was still there. The shooter "was about around where he came in," which was 15 feet away from Javier and towards the street.
Video surveillance footage from a neighbor's residence captured an SUV stop in the middle of the street and a person in a hooded sweatshirt get out of the vehicle's passenger side and run toward the victims' house. The person is outside of the camera's range for 10 seconds before he or she runs back into view. As the individual moves toward the SUV, the person turns in the direction he or she came from and fires two shots in that direction with both hands on the gun before getting into the SUV and driving away.
Photographs taken of the crime scene show Mario lying behind the gray Jeep toward the center of the driveway, with his upper body in the garage and the rest of his body in the driveway. Except for a shot through the gray Jeep's front driver's side windshield on the right side of the driveway, the bullet strikes identified by the police were all to the left side of the driveway and garage area. There were multiple bullet strikes to the green Jeep, a strike to the stucco and to a gutter on the front left side of the garage, a strike to the fence on the left side of the driveway next to the green Jeep, a strike to the Mustang parked on the left side of the garage, and one strike to the door on the left side of the garage's rear wall.
We have carefully reviewed the record and considered all of the evidence presented to the jury during trial. Taken together, the reasonable inference from this evidence is that Alvarado shot and disabled Mario before targeting José and firing further shots. The evidence does not support the kill zone theory presented to the jury, namely, that Alvarado "intended to kill Mario . . . by killing everyone in the kill zone." Indeed, Canizales clarified that for there to be sufficient evidence to support the kill zone theory of attempted murder, "the circumstances of the defendant's attack on a primary target," which here, as instructed, was Mario, "including the type and extent of force the defendant used, [must be] such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target." (Canizales, supra, 7 Cal.5th at p. 607, italics added.) Here, the record lacks " ' "evidence which is reasonable, credible, and of solid value" ' " that Alvarado intended to kill José and Javier to ensure Mario's death because Alvarado shot and disabled Mario before firing any additional shots. (Banks, supra, 61 Cal.4th at p. 804.)
We conclude, therefore, that the evidence was insufficient to support the kill zone theory of the attempted murder of Javier, and the trial court should not have instructed on it. (See Canizales, supra, 7 Cal.5th at p. 614; see also People v. Saddler (1979) 24 Cal.3d 671, 681.) We now turn to whether sufficient evidence supports the other theory of attempted murder on which the jury was instructed—that Alvarado intended to kill Javier.
As described above, the trial court instructed the jury in relevant part with respect to count 4, "In order to convict the defendant of the attempted murder of Javier Doe as charged in Count 4 the People must prove that the defendant not only intended to kill Mario [Doe], but also either intended to kill Javier Doe as charged in Count 4, or intended to kill everyone within the kill zone."
5. Insufficient Evidence to Support the Theory that Alvarado Intended to Kill Javier Specifically
"To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else." (Bland, supra, 28 Cal.4th at p. 328.) " 'There is rarely direct evidence of a defendant's intent.' " (People v. Smith (2005) 37 Cal.4th 733, 741 (Smith).) Thus, " 'intent must usually be derived from all the circumstances of the attempt, including the defendant's actions.' " (Ibid.) "Whether the defendant acted with specific intent to kill 'must be judged separately as to each alleged victim.' " (Id. at p. 740.)
Javier was the only eyewitness to the shooting to testify at trial. He testified that when the shooter walked up the victims' driveway between the Jeeps, Javier was sitting in front of Mario, who was seated between the Jeeps, while José was underneath the green Jeep parked on the left side of the driveway. The shooter shot Mario; Javier was then about a foot and a half away. The undisputed evidence showed that Mario was shot four times.
Immediately after the shooting started, Javier hid in the corner of the garage on the side where the gray Jeep was parked. After the shooter shot Mario, Javier testified the shooter was walking around "trying to shoot José." Javier heard a lot of shots. Javier saw José dodging the bullets that the gunman was shooting at José.
After firing multiple rounds at José, the shooter moved closer to the street. Javier "peeked" out of his hiding place in the right front corner of the garage to see if the shooter had left, but the shooter was still there. The shooter was then about 15 feet away from Javier and towards the street. The shooter fired two or three more shots, but there was no testimony where those shots struck. In addition, the witness who testified about the bullet strike to the gray Jeep did not know how far away the shooter was when he fired that shot.
According to the testimony of law enforcement officers, multiple objects on the left side of the driveway, including the green Jeep, were struck by bullets, as was the front of the garage on the left and objects located inside the garage to the left. Crime-scene photographs show that the front windshield of the gray Jeep, which was backed into the right side of the driveway, was struck by a bullet. The bullet strike was to the driver's side of the Jeep's windshield, which lined up with the front right side of the garage as the Jeep was parked facing the street. A criminalist determined that the bullet's trajectory "was going toward the [gray Jeep's] driver's seat. . . . [¶] . . . [T]owards the interior of the garage from the street."
Javier's testimony made clear that Javier did not believe the shooter ever saw Javier in his hiding place. In response to a question about whether the shooter entered the garage, Javier replied in the negative and observed that, if the shooter had entered the garage, "he would have seen me." Javier did not suggest that the shooter saw Javier when Javier "peeked" out from his hiding place, and no reasonable jury could infer from Javier's testimony that Javier believed the shooter saw him at any point after Javier hid in the corner of the garage. Multiple witnesses testified that, although there was a light in the garage, the garage was dark. The street, in particular, was very dark. Javier never testified that the shooter shot at him or fired shots in Javier's direction. Javier stated that the shooter first shot at Mario and then at José. There was no evidence about where the shooter was aiming (other than in the general direction of the house) when he shot the final two shots before getting into the car and leaving the scene.
In her closing argument, the prosecutor did not argue that Alvarado purposely shot at Javier specifically. Instead, the prosecutor focused on the kill zone theory when arguing for the attempted murder counts. She stated, "You heard the evidence that shots were fired across the house. It wasn't localized to just Mario. No one ran up, just shot Mario, and backed up and ran away. [¶] They sprayed bullets across the area. There were at least 10 casings found at the scene matching the gun for the defendant. There are nine bullet strikes across the house and the garage. And they took their opportunity, they covered the area with fire and they fled. [¶] And when we're talking about that kill zone here, that zone of harm, that's exactly what you'll see in the exhibit that Officer Haney talked to you about. This exhibit marks all of the casings, all of the strikes across the entire front of the victim's house. You heard from Lizette, bullets flew into the house, through the garage and into a bedroom. [¶] This wasn't someone who was satisfied with simply taking the life of Mario. This was someone who is going to get everyone they could in that area." In his closing argument, defense counsel, too, referenced the kill zone theory and did not discuss any evidence related to intent to kill Javier specifically.
Even reviewing this evidence in the light most favorable to the jury verdict, we conclude no rational trier of fact could have found beyond a reasonable doubt that Alvarado intended to kill Javier specifically. The only evidence from which the jury could find that Alvarado intended to kill Javier specifically was the single bullet strike to the gray Jeep, behind which Javier was hiding. However, the only way from which intent to kill Javier could be inferred from this bullet strike is if Alvarado knew where Javier was hiding, and Alvarado aimed the shot at Javier's location. There is no evidence at all to that effect. The only percipient witness to testify—Javier—did not believe Alvarado knew where he was hiding. Javier did not suggest that Alvarado ever fired at him or targeted him. Instead, Javier stated Alvarado first shot at Mario and then at José.
Further, Alvarado did not fire multiple bullets in Javier's direction, in contrast to the multiple bullets Alvarado fired at Mario and José, further undermining any reasonable inference that Alvarado was intentionally firing in the direction of Javier's hiding place. In the words of the prosecutor, the evidence was that the shooter "sprayed" bullets all over the house. There was no testimony that the shooter aimed at Javier specifically, and the prosecutor never argued that he did. In addition, when Alvarado walked up to Mario and shot him, Javier was only a foot and a half away. Alvarado did not shoot Javier when he clearly had the opportunity to do so. In their closing arguments neither counsel discussed any evidence of intent to kill Javier specifically.
We recognize that Alvarado's purposeful firing of a single shot at Javier would have been sufficient to support the conviction for attempted murder. "[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice." (Smith, supra, 37 Cal.4th at p. 742.) However, "[i]n reviewing sufficiency of evidence claims, each case of necessity must turn on its own particular facts." (Id. at p. 745.) For the reasons stated above, there is not sufficient evidence from which a rational jury could find, beyond a reasonable doubt that Alvarado purposely fired his weapon at Javier.
For these reasons, we conclude there is insufficient evidence to support Alvarado's conviction of the attempted murder of Javier, both on the kill zone theory and on the theory that he intended to kill Javier specifically. Therefore, Alvarado may not be retried on this count. (People v. Eroshevich (2014) 60 Cal.4th 583, 591.) We reverse his conviction on this count and remand the matter to the trial court with directions to dismiss count 4.
B. Fifteen-Year Minimum Parole Eligibility Period for Attempted Murder Conviction
Alvarado contends that the trial court erred when it imposed 15-year minimum parole eligibility periods on counts 2 and 4 for the gang enhancements under section 186.22, subdivision (b)(5) in addition to the 20-year determinate terms for the firearm-discharge enhancements under section 12022.53, subdivision (c) because the jury did not find that he personally used or discharged a firearm in the commission of those offenses, as required under section 12022.53, subdivision (e)(2) to impose both the gang enhancement and the firearm-discharge enhancement. For the reasons explained below, we conclude that the punishment imposed for the gang enhancement must be stayed on the sentence on count 2.
Because we have ordered the trial court to dismiss count 4, Alvarado's challenge to his sentence on that count is moot.
1. Background
Alvarado was charged in count 2 with attempted willful, deliberate, and premeditated murder within the meaning of section 664, subdivision (a). It was also alleged that Alvarado committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1), (5), and that a principal personally used and personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b), (c), and (e)(1).
Section 664, subdivision (a) states in relevant part: "[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole."
Subdivision (b)(1) of section 186.22 states: "Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished . . . [¶] . . . by an additional term of two, three, or four years at the court's discretion," except that "[i]f the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be punished by an additional term of five years. [¶] . . . If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years."
Subdivision (b)(5) of section 186.22 states: "Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."
Subdivision (b) of section 12022.53 states: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply."
Subdivision (c) of section 12022.53 states: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years."
Subdivision (e)(1) of section 12022.53 states: "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)."
The trial court instructed the jury: "If you find the defendant guilty of Attempted Murder as charged in Counts 2, 3 or 4 and you find that the defendant committed those crimes for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further, or assist in any criminal conduct by gang members, you must then decide whether, for each crime, the People have proved the additional allegation that one of the principals personally and intentionally discharged a firearm during the crime. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] To prove this allegation, the People must prove that: [¶] 1. Someone who was a principal in the crime personally discharged a firearm during the commission of the attempted murder; [¶] AND [¶] 2. That person intended to discharge the firearm. [¶] A person is a principal in a crime if he or she directly commits the crime or if he or she aids and abets someone else who commits the crime. . . ."
In her closing argument, the prosecutor discussed the firearm-discharge enhancement only as it pertained to the murder charge. The prosecutor stated: "So what the judge described to you when he was talking about the law was what it means to be a principal. That means that if either the person directly commits the crime or even if he aids and abets in the crime . . . . [¶] And what that means here is that if you believe for whatever reason that the defendant aided and abetted in this crime, whether he was the shooter, the principal, whether he was the driver aiding and abetting, whether he supplied the car and gun knowing they were going to go commit a shooting, he is guilty not just of the murder, but of the gun enhancement and the gang enhancement." Later, regarding the kill zone theory, the prosecutor argued: "They sprayed bullets across the area. . . . [T]hey took their opportunity, they covered the area with fire and they fled." The prosecutor then argued that the evidence established that defendant killed Mario.
Although the information alleged that Alvarado personally discharged a firearm in the commission of the murder (§ 12022.53, subd. (d)), the trial court instructed the jury that the prosecution had to prove "a principal in the crime personally discharged a firearm during the commission of the murder."
The verdict for count 2 stated that the jury found "that in the commission of [the] crime, the defendant or a principal, personally and intentionally discharged a firearm, within the meaning of . . . section 12022.53, subdivision (c)."
The trial court sentenced Alvarado on count 2 to an indeterminate term of 15 years to life under section 186.22, subdivision (b)(5) plus a determinate term of 20 years under section 12022.53, subdivision (c). Alvarado did not object to the sentence imposed.
2. Analysis
This issue "involves the interplay between two highly complex statutes: section 186.22, which targets participants in criminal street gangs; and section 12022.53, also known as 'the 10-20-life law' [citation], which 'prescribes substantial sentence enhancements for using a firearm in the commission of certain listed felonies.' " (People v. Brookfield (2009) 47 Cal.4th 583, 588 (Brookfield).)
Relevant here, subdivision (b)(5) of section 186.22 provides that "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . [¶] . . . [¶] . . . shall not be paroled until a minimum of 15 calendar years have been served," if the punishment for the underlying felony is life imprisonment. "The effect of section 186.22, subdivision (b)(5) is to increase the minimum parole eligibility date on a willful, deliberate, and premeditated attempted murder sentence. Absent a determination the accused is subject to the enhanced sentencing provisions of section 186.22 or some other provision of law, a sentence for willful, deliberate, and premeditated murder is for a life term with a minimum wait for parole of seven years. (§ 3046, subd. (a)(1).) However, once a finding pursuant to section 186.22, subdivision (b)(5) is returned, the minimum wait for parole eligibility under a life sentence is increased to 15 years." (People v. Salas (2001) 89 Cal.App.4th 1275, 1280-1281, fn. omitted (Salas).)
Former section 3046, subdivision (a) states: "No prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of the following: [¶] (1) A term of at least seven calendar years. [¶] (2) A term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole."
"Under section 12022.53, a defendant's personal use of a firearm in the commission of a specified felony results in an additional 10-year prison term (§ 12022.53, subd. (b)), personal and intentional discharge of a firearm leads to an additional 20 years (id., subd. (c)), while personal and intentional discharge of a firearm resulting in death or great bodily injury to a person other than an accomplice adds a prison term of 25 years to life (id., subd. (d)) to the sentence for the underlying crime." (Brookfield, supra, 47 Cal.4th at p. 589.)
"Subdivision (e) of section 12022.53 explains how a trial court is to sentence a defendant in a case in which the provisions of sections 186.22 and 12022.53 both apply." (Brookfield, supra, 47 Cal.4th at p. 590.) Section 12022.53, subdivision (e)(1) states: "The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d)." However, important here, subdivision (e)(2) of section 12022.53 provides: "An enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense."
"Section 12022.53's subdivision (e)(1) has this effect: Ordinarily, section 12022.53's sentence enhancements apply only to personal use or discharge of a firearm in the commission of a statutorily specified offense, but when the offense is committed to benefit a criminal street gang, the statute's additional punishments apply even if . . . the defendant did not personally use or discharge a firearm but another principal did. Section 12022.53[, subdivision] (e)(2), however, limits the effect of subdivision (e)(1). A defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided for in section 186.22 and the increased punishment provided for in section 12022.53. In contrast, when another principal in the offense uses or discharges a firearm but the defendant does not, there is no imposition of an 'enhancement for participation in a criminal street gang . . . in addition to an enhancement imposed pursuant to' section 12022.53. (§ 12022.53[, subdivision] (e)(2).)" (Brookfield, supra, 47 Cal.4th at p. 590.)
In Brookfield, the California Supreme Court determined that the trial court erred when it imposed sentence enhancements under both section 186.22 and section 12022.53 because the jury determined that the defendant was a principal in the gang-related offense and that at least one principal used a firearm during the commission of the offense within the meaning of section 12022.53, subdivisions (b) and (e)(1). (Brookfield, supra, 47 Cal.4th at pp. 586, 592, 595.) The court observed that section 12022.53 distinguishes between gang offenders who personally used or discharged a firearm in the commission of the underlying felony and accomplices to a gang-related felony where another principal personally used or discharged a firearm. (Id. at pp. 593-594.) Only gang offenders who personally used or discharged a firearm may be punished under both the gang and firearm-discharge enhancements; accomplices may not. (Ibid.; see also Salas, supra, 89 Cal.App.4th at pp. 1281-1282.)
Here, the jury determined regarding the attempted murder conviction in count 2 "that in the commission of [the] crime, the defendant or a principal, personally and intentionally discharged a firearm, within the meaning of . . . section 12022.53, subdivision (c)." (Italics added.) The Attorney General argues that "the jury functionally found that [defendant] personally discharged the firearm" based on its determination that defendant was guilty of shooting at an inhabited dwelling house and that "[t]he jury's verdicts here could only reasonably be construed as concluding that [defendant] personally discharged the firearm during the attempted murders."
"Where, as here, a jury's verdict is ambiguous, 'A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court.' " (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1256.) In addition to the jury instructions, the information and the prosecutor's closing argument are considered when determining how a verdict may be reasonably construed. (Ibid.)
Based on the information, the jury instructions, and the prosecutor's closing argument, we conclude that we cannot reasonably construe the jury's verdict as a finding that Alvarado personally discharged a firearm in the commission of the attempted murders. The information alleged that "a principal personally used and intentionally discharged a firearm" in the commission of the attempted murders within the meaning of section 12022.53, subdivisions (b), (c), and (e)(1). The trial court instructed the jury that the prosecution had to prove that "[s]omeone who was a principal in the crime personally discharged a firearm during the commission of the attempted murder." In closing argument, the prosecutor told the jury when explaining the term "principal" in conjunction with the firearm-discharge allegation attached to the murder count that "what that means . . . is that if you believe for whatever reason that the defendant aided and abetted in this crime, whether he was the shooter, the principal, whether he was the driver aiding and abetting, whether he supplied the car and gun knowing they were going to go commit a shooting, he is guilty not just of the murder, but of the gun enhancement and the gang enhancement." She later argued when discussing the kill zone theory that "[t]hey sprayed bullets across the area" and "they took their opportunity, they covered the area with fire and they fled." (Italics added.)
The Attorney General observes that Alvarado "does not challenge the jury's finding under section 12022.53, subdivision (d) that [he] or a principal personally and intentionally discharged a firearm causing Mario's death." However, there is no basis to challenge that finding or the punishment imposed on the murder conviction. Unlike with the attempted murders, the trial court imposed only one sentence enhancement in conjunction with the murder—sentencing Alvarado to 25 years to life under section 12022.53, subdivision (d) for the discharge of a firearm causing death. The enhancement was properly imposed because, as explained above, subdivision (e)(1)(A) and (B) of section 12022.53 permits imposition of the section's enhancements on "any person who is a principal in the commission of an offense if" it is "pled and proved" both that "[t]he person violated subdivision (b) of Section 186.22" and that "[a]ny principal in the offense committed any act specified in subdivision (b), (c), or (d)." In contrast to the attempted murders, the trial court did not impose a sentence enhancement under section 186.22 and section 12022.53 for the murder, which would have run afoul of section 12022.53, subdivision (e)(2).
Accordingly, because we cannot reasonably construe the jury's verdict that "the defendant or a principal, personally and intentionally discharged a firearm" as a determination that Alvarado personally discharged a firearm during the commission of the attempted murder within the meaning of section 12022.53, subdivision (c), the judgment must be modified to stay imposition of the 15-year minimum parole eligibility term imposed pursuant to section 186.22, subdivision (b)(5) on count 2. (§ 12022.53, subd. (e)(2); see People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130; People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1238 [staying the 15-year minimum parole eligibility term imposed under § 186.22, subd. (b)(5) "because the jury found only that a principal personally used a firearm" in the commission of the offenses and a firearm use enhancement was also imposed under § 12022.53, subds. (d) and (e)].) Although Alvarado did not object to the sentence imposed, an unauthorized sentence, as we have here, is "subject to judicial correction whenever the error [comes] to the attention of the trial court or a reviewing court. [Citations.]" (People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on another ground by People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
We note that the abstract of judgment incorrectly omits the section 186.22, subdivision (b)(5) gang enhancements found true on counts 1 and 2. The abstract of judgment prepared after defendant is resentenced should reflect the jury's true findings regarding the enhancements and that imposition of the enhancements has been stayed.
C. Sufficiency of the Evidence to Support the Gang Enhancements
Alvarado contends that the evidence fails to support the jury's findings that he committed the crimes for the benefit of a criminal street gang because there was insufficient evidence that the Norteño and Northside Boronda gangs' primary activities were the commission of one or more of the crimes enumerated in section 186.22, subdivision (e). Based on Detective Gibson's testimony, we conclude that the record contains substantial evidence that the Norteño and Northside Boronda gangs' primary activities were the commission of several of the crimes enumerated in the gang statute.
1. Legal Principles
Section 186.22, subdivision (f) defines a criminal street gang as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." Thus, as relevant here, "[t]o trigger the gang statute's sentence-enhancement provision (§ 186.22, subd. (b)), the trier of fact must find that one of the alleged criminal street gang's primary activities is the commission of one or more of certain crimes listed in the gang statute." (People v. Sengpadychith (2001) 26 Cal.4th 316, 322 (Sengpadychith).) The acts enumerated in subdivision (e) include murder, felonious assault, robbery, possession of a controlled substance for sale, shooting at an inhabited dwelling, and unlawful firearm possession. (§ 186.22, subd. (e).) The attempted commission of those crimes also satisfies the " 'primary activities' " requirement. (People v. Vy (2004) 122 Cal.App.4th 1209, 1227-1228.)
"The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members." (Sengpadychith, supra, 26 Cal.4th at p. 323.) "Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley . . . . There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on 'his personal investigations of hundreds of crimes committed by gang members,' together with information from colleagues in his own police department and other law enforcement agencies." (Id. at p. 324.)
People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), disapproved on another ground by People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 3.
"We review the sufficiency of the evidence to support an enhancement using the same standard we apply to a conviction." (People v. Wilson (2008) 44 Cal.4th 758, 806.) " 'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (Perez, supra, 50 Cal.4th at p. 229.)
2. Analysis
Detective Gibson testified as an expert on the Norteño and Sureño criminal street gangs. Detective Gibson had received over 182 hours of formal gang training and was currently a gang intelligence detective investigating gang-related crimes. He had also been on the Monterey County gang task force for three years. Detective Gibson had investigated "[h]undreds" of gang-related crimes, including at least 100 crimes committed by Norteños and at least five crimes involving the Northside Boronda. Detective Gibson had also interviewed hundreds of gang members. Detective Gibson opined that in May 2016, the Norteños and the Northside Boronda were each an ongoing organization or association with three or more members individually or collectively engaging in a pattern of criminal gang activity. Detective Gibson identified homicide, attempted homicide, robbery, carjacking, drug sales and possession, and firearm possession as the "primary crimes" committed by the Monterey County Norteños and the Northside Boronda "as of May 2016."
Alvarado acknowledges that Detective Gibson's testimony regarding the Norteños' and Northside Boronda's "primary crimes" represented the detective's opinion that "the commission of these crimes constituted the 'primary activities' of the gangs."
One of the crimes Detective Gibson investigated involving a Northside Boronda member was a robbery committed on November 29, 2014 by Juan Gomez. Detective Gibson opined that Gomez was a member of the "Northside Boronda subset to the Norteño criminal street gang." Detective Gibson also testified to his familiarity with four other individuals he believed to be members of the Northside Boronda subset to the Norteño criminal street gang who were convicted of robbery, unlawful firearm possession, and narcotic sales, and the prosecution moved the conviction records for those crimes into evidence. Specifically, Bobby Carrillo pleaded no contest to possessing a concealed firearm and participating in a criminal street gang in June 2013. Fabian Robledo pleaded no contest to committing an attempted robbery and participating in a criminal street gang on February 16, 2013. Dakota Casperson pleaded no contest to possessing a controlled substance for sale for the benefit of a criminal street gang on January 9, 2007. Antonio Barajas pleaded no contest to possessing a controlled substance for sale for the benefit of a criminal street gang while armed with a firearm on June 15, 2004.
In addition, when given a hypothetical based on the facts of this case, Detective Gibson opined that the crimes were committed to benefit the Norteño criminal street gang because they involved targeting a rival and would have bolstered the gang's reputation for violence and promoted the gang. (See People v. Duran (2002) 97 Cal.App.4th 1448, 1465 ["Past offenses, as well as the circumstances of the charged crime, have some tendency in reason to prove the group's primary activities, and thus both may be considered by the jury on the issue of the group's primary activities."].) Detective Gibson also testified that he had reviewed the facts of an incident on September 16, 2013. When given several hypotheticals based on the facts of the attempted armed robbery at Classic Coachworks on September 16, 2013 and the perpetrators' tattoos, clothing, and the images contained in their cell phones, Detective Gibson explained the significance of the tattoos, clothing, and images and opined that the crime was committed "in association with another Norteño gang member [to] further and benefit the Norteño criminal street gang." (See People v. Garcia (2014) 224 Cal.App.4th 519, 524 ["Because section 186.22, subdivision (e) contains both the options of 'commission' or 'conviction,' the statute expressly does not require that the offense necessarily result in a conviction."].) Detective Gibson opined that Alvarado was an active participant in the Norteño criminal street gang and the Northside Boronda subset based on his tattoos, his moniker, his associations, and the crimes he committed to benefit the gangs, including confronting rival gang members.
Alvarado relies on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.) and People v. Perez (2004) 118 Cal.App.4th 151 to argue that there was insufficient evidence that the Norteños' and Northside Boronda's primary activities were the commission of crimes enumerated in the gang statute. In Alexander L., the expert witness, who had been working in the gang enforcement unit for an unspecified period of time, testified regarding the primary activities of the Varrio Viejo gang: " 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.' " (Alexander L., at pp. 609, 611.) In concluding that there was insufficient evidence to support the gang enhancement, the Court of Appeal reasoned: "Lang's entire testimony on this point is quoted above—he 'kn[e]w' that the gang had been involved in certain crimes. No specifics were elicited as to the circumstances of these crimes, or where, when, or how Lang had obtained the information. He did not directly testify that criminal activities constituted Varrio Viejo's primary activities. Indeed, on cross-examination, Lang testified that the vast majority of cases connected to Varrio Viejo that he had run across were graffiti related. [¶] Even if we could reasonably infer that Lang meant that the primary activities of the gang were the crimes to which he referred, his testimony lacked an adequate foundation. 'The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates.' " (Id., at pp. 611-612, fn. omitted.)
In People v. Perez, the evidence showed that the gang in question was responsible for the "retaliatory shootings of a few individuals over a period of less than a week, together with a beating six years earlier." (People v. Perez, supra, 118 Cal.App.4th at p. 160.) The Court of Appeal concluded that this evidence was insufficient to establish that gang members had " 'consistently and repeatedly . . . committed criminal activity listed in the gang statute.' " (Ibid.) The court observed that "[n]o expert testimony such as that provided in . . . Gardeley, supra, 14 Cal.4th at page 620 . . . was elicited here." (Ibid.)
Alexander L., supra, 149 Cal.App.4th 605 and People v. Perez, supra, 118 Cal.App.4th 151 are distinguishable from the present case. Here, Detective Gibson testified regarding his gang training, his conversations with gang members, and his participation in gang investigations in Monterey County. This testimony provided a reliable basis for Detective Gibson's expert opinion on the primary activities of the Salinas Norteños and the Northside Boronda. (See Sengpadychith, supra, 26 Cal.4th at p. 324.)
Alvarado also argues that "Gibson's testimony concerning specific crimes shows that between 2004 and 2017, five members of Northside Boronda committed six crimes listed in section 186.22, subdivision (e)," and that once his offenses are included, "the number increases to six gang members committing 10 crimes over a period of 14 years. Ten enumerated crimes in 14 years committed by a gang with 50 members does not constitute substantial evidence that commission of those crimes is a primary activity of that gang." However, Alvarado overlooks Detective Gibson's opinion testimony, similar to the expert testimony in Gardeley, supra, 14 Cal.4th 605, that the primary activities of the Northside Boronda included several of the offenses enumerated in section 186.22. (See Sengpadychith, supra, 26 Cal.4th at p. 324 ["Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605." (Second italics added.)].) The prosecution's evidence regarding the Northside Boronda's primary activities included Detective Gibson's opinion testimony identifying homicide, attempted homicide, robbery, carjacking, drug sales and possession, and firearm possession as the gang's "primary crimes," the conviction records of individuals the detective opined were Northside Boronda members who committed some of the enumerated crimes, and Alvarado's commission of the attempted robbery at Classic Coachworks and the charged crimes here.
For these reasons, we determine there was substantial evidence to support the primary activities element of the gang statute.
III. DISPOSITION
We reverse for insufficient evidence Alvarado's conviction for the attempted murder of Javier and remand the matter to the trial court with directions to dismiss count 4 and resentence Alvarado. Alvarado's remaining convictions are affirmed. We also direct the trial court upon remand to stay the 15-year minimum parole eligibility term imposed on count 2 pursuant to section 186.22, subdivision (b)(5). Upon resentencing, the abstract of judgment shall reflect the jury's true findings regarding the section 186.22 subdivision (b)(5) enhancements on counts 1 and 2 and that imposition of the enhancements has been stayed.
/s/_________
Danner, J. I CONCUR: /s/_________
Greenwood, P.J.
BAMATTRE-MANOUKIAN, J., Concurring and dissenting.
Defendant was tried on two theories regarding the attempted murder of Javier Doe: (1) defendant intended to kill Javier to ensure Mario Doe's death, known as the kill zone theory; or (2) defendant intended to kill Javier specifically. I concur with my colleagues' determination that there is insufficient evidence in the record to support defendant's conviction of the attempted murder of Javier based on the kill zone theory. However, I respectfully dissent from my colleagues' conclusion that there is insufficient evidence to support the conviction based on the theory that defendant intended to kill Javier specifically.
The trial court instructed the jury on the attempted murder of Javier as follows: "The defendant is charged in Count 4 with the Attempted Murder of Javier Doe. [¶] To prove that the defendant is guilty of Attempted Murder of Javier Doe, the People must prove that: [¶] 1. The defendant took at least one direct but ineffective step toward killing Javier Doe; [¶] AND [¶] 2. The defendant intended to kill Javier Doe. [¶] . . . [¶] A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone.' In order to convict the defendant of the attempted murder of Javier Doe as charged in Count 4, the People must prove that the defendant not only intended to kill Mario [Doe] but also either intended to kill Javier Doe as charged in Count 4, or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Javier Doe as charged in Count 4, or intended to kill Mario [Doe] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Javier Doe as charged in Count 4."
When determining whether sufficient evidence supports a jury verdict, "[o]ur review must ' "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." ' " (People v. Gomez (2018) 6 Cal.5th 243, 278 (Gomez).) " ' "Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict.' [Citation.]" (People v. Penunuri (2018) 5 Cal.5th 126, 142 (Penunuri).)
"Attempted murder requires the specific intent to kill," or express malice, "and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) Express malice is shown when the defendant " 'either desires the victim's death, or knows to a substantial certainty that the victim's death will occur.' " (People v. Houston (2012) 54 Cal.4th 1186, 1217.)
" 'There is rarely direct evidence of a defendant's intent.' " (People v. Smith (2005) 37 Cal.4th 733, 741 (Smith).) Thus, " 'intent must usually be derived from all the circumstances of the attempt, including the defendant's actions.' " (Ibid.) " 'The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . ." [Citation.]' [Citations.]" (Ibid.)
Here, video surveillance footage established that beginning at 4:12 p.m. on the date of the shooting, defendant's getaway vehicle drove past the victims' home nine times, including at 10:24 p.m., 10:31 p.m., and 10:40 p.m. The SUV stopped in front of the victims' house on the tenth trip, at approximately 10:44 p.m.
Javier testified that he was outside with Mario and José Doe for about five minutes before the shooting started. Mario and José were working on two vehicles parked in their residence's driveway, a green Jeep and a gray Jeep. The green Jeep was parked on the left side of the driveway and was facing the garage; the gray Jeep was parked on the right side of the driveway and was facing the street. Javier was sitting in front of Mario, who was seated between the two Jeeps. José was underneath the green Jeep. The garage door was open. A light was on inside the garage and "you [could] see clearly inside." There was also a "somewhat bright" street light.
The gunman walked up the driveway between the Jeeps and shot Mario at close range four times. As soon as the first shot fired, Javier ran to hide in a corner inside the garage behind the gray jeep on the right side of the driveway. Meanwhile, José had come out from underneath the green Jeep on the left side of the driveway.
Javier testified that José ran around the front and left side of the green Jeep on the left side of the driveway dodging bullets as the gunman walked between the two Jeeps shooting at him. Javier came out of his hiding place in the garage at least once during a break in the shooting to see if the gunman was still there. Javier was "at the tail [end] of the [gray] Jeep" when he "peeked" out. Javier saw the shooter "was about around where he came in," 15 feet away from Javier towards the street.
Video surveillance footage shows the shooter running back to the getaway vehicle. Before reaching the SUV, the gunman fired two shots in the direction of the victims' residence. The shooter used both hands when firing.
A criminalist testified that between nine to twelve casings were found at the scene. Crime scene photographs show that the front windshield of the gray Jeep, which was backed into the right side of the driveway, was struck by a bullet. The bullet strike was to the driver's side of the Jeep's windshield, which lined up with the front right side of the garage. The criminalist determined that the bullet's trajectory "was going toward the [gray Jeep's] driver's seat. [¶] . . . [T]owards the interior of the garage from the street[.]" The remaining bullet strikes were to Mario and objects on the left side of the driveway and garage.
Javier testified that the only car between himself and the getaway vehicle was the gray Jeep. When asked to mark his position inside the garage on a diagram of the crime scene, Javier placed himself in the right front corner of the garage next to the rear of the gray Jeep. None of the other victims were anywhere near Javier's location in the front right corner of the garage.
Given Javier's initial proximity to Mario, the jury could reasonably infer that defendant was aware of Mario's and Javier's presence in the driveway when he approached Mario and shot him. The jury could also reasonably infer that had defendant not already been aware of all three victims' presence in the driveway from repeatedly driving by the victims' house, he would have known there were three men in the driveway area once José moved out from underneath the green Jeep. Finally, the jury could reasonably infer from Javier's testimony and the evidence regarding the bullet strike to the gray Jeep's windshield that had the shot to the windshield been slightly to the right, it could have struck the corner of the garage where Javier was hiding and killed him. (See Smith, supra, 37 Cal.4th at p. 741.)
The video surveillance footage showing that the gunman used two hands when firing, the location of the bullet strikes, the evidence regarding the bullet strike to the gray Jeep's windshield, and Javier's testimony regarding the sequence of events, his location, and Mario's and José's locations support a reasonable inference that defendant was targeting Javier when he fired the shot that hit the driver's side of the gray Jeep's windshield. Thus, the jury could reasonably conclude from the record evidence that defendant shot at Javier with the intent to kill him. (See Smith, supra, 37 Cal.4th at p. 741.) The firepower used by defendant, with at least nine shots fired, was certainly enough to kill both José and Javier in addition to Mario had defendant's shots been on target. (See People v. Garcia (2012) 204 Cal.App.4th 542, 554 [concluding "the jury could reasonably have found defendant fired six to eight shots at the victims with the intent to kill" all four of them].)
My colleagues disagree, determining that "the only way from which [an] intent to kill Javier could be inferred from th[e] bullet strike [to the gray Jeep] is if [defendant] knew where Javier was hiding, and [defendant] aimed the shot at Javier's location. There is no evidence at all to that effect." To the contrary, there is " ' "evidence which is reasonable, credible, and of solid value" ' " (People v. Banks (2015) 61 Cal.4th 788, 804 (Banks)) from which the jury could reasonably infer that defendant was aware of Javier's hiding place and fired the shot that hit the gray Jeep with the intent to kill Javier.
There was record evidence that the driveway and garage area were illuminated; defendant would have known of Javier's presence in the driveway area when he shot Mario; Javier stepped out by the end of gray Jeep from his hiding place in the garage at least once and saw defendant approximately 15 feet away; and defendant used two hands when firing his weapon, which indicates that he aimed his shots. In addition, crime scene evidence showed that all of the shots struck objects near the three victims' separate locations—Mario was shot four times at close range; multiple objects were struck on the left side of the driveway and garage when defendant targeted José; and there was one shot that hit the gray Jeep parked on the right side of the driveway directly in front of Javier's position in the garage. No one but Javier was in the vicinity of the gray Jeep. The shot appeared almost perfectly placed to hit him. As stated above, " '[t]he act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . ." [Citation.]' [Citations.]" (Smith, supra, 37 Cal.4th at p. 741.)
My colleagues state that "[m]ultiple witnesses testified that, although there was a light in the garage, the garage was dark." However, as stated above, Javier testified that a light was on in the garage and "you [could] see clearly inside," and that there was a "somewhat bright" street light. Javier later stated "[t]here was light, but not a lot. Just the light from the garage and the street light." Two police officers at the scene testified that they needed additional light when photographing or searching for evidence like shell casings. Another officer testified that the garage light was on, but the street was dark. Lizette Doe testified that the street was very dark but "[i]t was more light up against the driveway."
There is no dispute that immediately before the shooting, Mario and José were working on the two Jeeps parked in the driveway in front of the garage while Javier sat outside talking to them. It is reasonable to infer from this evidence that there was at least enough light in the driveway and garage area for the men to perform their work. It is also undisputed that defendant got out of his vehicle after driving by the victims' residence multiple times, approached Mario directly, shot him four times, and then shot at José. The reasonable inference from this evidence is that the driveway and garage were illuminated well enough to see the individuals present. In a sufficiency of the evidence review, this court "must ' "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." ' " (Gomez, supra, 6 Cal.5th at p. 278.) We do not resolve conflicts in the record. (Penunuri, supra, 5 Cal.5th at p. 142.)
My colleagues highlight Javier's testimony that he did not think the shooter saw him hiding in the garage. This speculative testimony, however, establishes solely Javier's belief. It does not constitute substantial evidence that defendant was unaware of Javier's location.
In People v. Chinchilla (1997) 52 Cal.App.4th 683 (Chinchilla), the Court of Appeal rejected the defendant's claim that there was insufficient evidence to support two convictions of attempted murder based on the lack of evidence that defendant saw the two victims when he fired a single shot in their direction. (Id. at pp. 690-691.) Victim No. 2 testified that she was crouched behind and above victim No. 1, and both victims testified that they could see the muzzle flash from defendant's gun when he fired at them. (Id. at p. 690.) The court determined it was reasonable to infer from this evidence that victim No. 2 was visible to defendant and upheld the two convictions based on the single shot. (Id. at pp. 690-691.)
In People v. Leon (2010) 181 Cal.App.4th 452 (Leon), the Court of Appeal upheld the defendant's conviction of murder and one of his two convictions of attempted murder. (Id. at pp. 456, 465-466.) All three of the alleged victims were inside a car that passed by defendant's vehicle. (Id. at p. 457.) The defendant fired one shot, striking and killing the backseat passenger. (Ibid.) The court upheld the attempted murder conviction involving the driver who, like the backseat passenger, was seated on the side of the car that passed directly next to defendant's side. (Id. at p. 465.) The court determined that this evidence "support[ed] a reasonable inference that [the defendant] 'purposefully discharged a lethal firearm at the victims . . . , both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire . . . .' [Citation.]" (Ibid.) The court reversed the attempted murder conviction pertaining to the third victim, who was seated on the side of the car that did not pass on defendant's side and was not directly in the line of fire. (Id. at pp. 465, 470.)
Similar to the circumstances in Chinchilla and Leon, Javier was able to see defendant when he peeked out from his hiding spot after defendant had moved toward the street. Javier was directly in defendant's line of fire when defendant shot the round that hit the gray Jeep's windshield.
My colleagues observe that defendant "did not shoot Javier when he clearly had the opportunity to do so," referencing the moment when defendant walked up the driveway and shot Mario while Javier was sitting a foot and a half away. But we have no way of knowing why defendant turned his attention to José rather than Javier after shooting Mario. Perhaps defendant believed José to be more of a threat, since José came out from underneath the green Jeep but Javier immediately ran and hid, and defendant decided he could not turn his back on José to pursue Javier. Regardless, the question before us is not to speculate that defendant had the opportunity to shoot Javier immediately after he shot Mario and that his failure to do so demonstrates a lack of intent to kill Javier. "[W]here, as here, the evidence of guilt is largely circumstantial, our task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might ' " 'be reasonably reconciled with the defendant's innocence.' " ' [Citations.] The relevant inquiry is whether, in light of all the evidence, a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citation.]" (Gomez, supra, 6 Cal.5th at p. 278.)
The majority also finds that because defendant "did not fire multiple bullets in Javier's direction, in contrast to the multiple bullets [he] fired at Mario and José," it "further undermin[es] any reasonable inference that [defendant] was intentionally firing in the direction of Javier's hiding place." However, " ' "[t]he fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter's poor marksmanship necessarily establish a less culpable state of mind." [Citation.]' [Citation.]" (Smith, supra, 37 Cal.4th at p. 741.) Again, the relevant inquiry is not "whether the evidence might ' " 'be reasonably reconciled with the defendant's innocence.' " ' [Citations.] The relevant inquiry is whether, in light of all the evidence, a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citation.]" (Gomez, supra, 6 Cal.5th at p. 278.)
Finally, my colleagues reference the prosecutor's argument to support their determination that there is insufficient evidence to uphold the jury's verdict based on the non-kill zone theory, concluding that "the prosecutor did not argue that [defendant] purposely shot at Javier specifically." This approach "fail[s] to focus on the evidence presented and the possible inferences drawn therefrom . . . . It is elementary . . . that the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury." (People v. Perez (1992) 2 Cal.4th 1117, 1125-1126.) It also overlooks the prosecutor's statement that defendant "wasn't someone who was satisfied with simply taking the life of Mario. This was someone who is going to get everyone they could in that area." That argument does not constitute a kill zone theory of attempted murder, which involves an "inten[t] to kill everyone present to ensure the primary target's death." (People v. Canizales (2019) 7 Cal.5th 591, 607 (Canizales), italics added.) Rather, the prosecutor's statement is an argument that defendant intended to kill "everyone . . . in that area" specifically, which indisputably included Javier, because he was not "satisfied with simply taking the life of Mario."
In sum, based on the video surveillance footage, the location of the bullet strikes including the strike to the driver's side of the gray Jeep's windshield, and Javier's testimony regarding the sequence of events, his location, and Mario's and José's locations, I determine there is sufficient evidence in the record—" ' "evidence which is reasonable, credible, and of solid value" ' "—to uphold defendant's conviction of the attempted murder of Javier based on the theory that defendant intended to kill Javier specifically. (Banks, supra, 61 Cal.4th at p. 804.)
I further conclude that in light of the trial court's instruction to the jury regarding the attempted murder of Javier, which erroneously included the kill zone theory, and the prosecutor's argument that focused primarily on the kill zone theory of attempted murder, the trial court's error was not harmless beyond a reasonable doubt. (See Canizales, supra, 7 Cal.5th at pp. 614-618.) Accordingly, I would reverse and remand the matter to allow the prosecution an election to retry defendant on the attempted murder of Javier with proper instructions that do not include the kill zone theory. (See People v. Stringer (2019) 41 Cal.App.5th 974, 987, 993.)
Concurring and dissenting.
/s/_________
BAMATTRE-MANOUKIAN, J.