Opinion
E072299
01-11-2021
THE PEOPLE, Plaintiff and Respondent, v. EZEKIEL ISAIAH GEORGE, Defendant and Appellant.
Jason Lawrence Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1500023) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed in part, reversed in part with directions. Jason Lawrence Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
On December 31, 2014, Cal Skate, a skating rink popular with young people, held a special New Year's Eve event, attended by defendant Ezekiel George, a member of the NAW gang, and several NAW associates of his. After a brief confrontation with another group after midnight, defendant and his companions were escorted out of the rink by security guard Richard W., also known as Big Will, and others. As they were leaving the parking lot, defendant and one of his associates opened fire, killing Big Will, and injuring two others. Defendant and his companions were arrested and tried separately, and defendant was convicted of one count of murder, two counts of attempted premeditated murder, with true findings on gang allegations and various gun use and gun discharge allegations. He was sentenced to an aggregate term of 105 years to life in prison and appealed.
On appeal, defendant argues that (a) his attempted murder convictions, which were based exclusively on a "kill-zone" theory, must be reversed; (b) the imposition of a 10-year enhancement for the gang allegation was an unauthorized term; and (c) he was deprived of an adequate appellate record by the parties' stipulation that the court reporter did not need to take down the oral instructions at trial. The People agree that reversal is required on the first two issues. We reverse the convictions for attempted murder on counts two and three, along with attendant enhancements, but affirm the balance and remand for further proceedings and sentencing.
Defendant does not challenge the murder conviction of count 1, or the shooting at an occupied building of count 4. The judgment as to those counts and their enhancements are affirmed.
BACKGROUND
On the evening of December 31, 2014, Cal Skate in Grand Terrace hosted a New Year's Eve event which drew a crowd of between 400 and 800 people. Attendees were screened by private security guards before being admitted to the rink area and were required to check in certain personal property, including hats. Richard W. owned the private security service company that provided armed security for the occasion, "Big Will's Security Services," and was present at the event with his employee, Javier L. Richard W. was called "Big Will." Patrons were given a claim ticket to reclaim their property when they left.
We will refer to the victim by his nickname to protect the privacy of his family.
Defendant, a member of NAW (Niggas Always Wid it), attended the event with several associates, as did members of a rival gang. After the balloon drop, the two groups had problems with each other and security got involved. Then someone reported there was trouble at the skate rack, when someone had attempted to reclaim his $200 hat and it could not be found. The person, an African-American male, cursed at Big Will as he and other members of defendant's group, were escorted outside. Big Will had his Taser in his hand as he escorted the group outside. Security guard Javier L. accompanied Big Will and the groups as they exited the rink.
Outside, the group that had been escorted out of the rink exchanged more words with Big Will and then walked to separate cars. Big Will followed them to one of the cars. Javier L. was situated next to the property in front of a car as people got into their cars. A patron, Schuyler W., had gone outside to either use his phone or smoke his vape device as the groups were escorted out. However, the groups, accompanied by Big Will, went around the corner of the building. When the group got into the cars, Big Will's Taser was activated but he did not use it on anyone.
One person in the group, wearing a white shirt, had responded aggressively to the security officer as his group entered a white car. That person in the white shirt entered the rear passenger side of the white car. The first car drove off, and the second car, the white car, pulled out of its parking spot. As it did so, the car stopped and turned off its head lights. Someone in the white car was heard to say, "This is going down," when the car stopped. Then several shots were fired from the rear passenger window of the car, by defendant and his friend Maurice. After a brief pause, there was return fire, and the car sped out off. Security guard Javier L. had fired his gun, a 9 mm Ruger.
Defendant's confession was recorded and the recording was played to the jury.
Big Will, who had been in the middle of the parking lot, had been shot, and died of his wound on the way to the hospital. Javier L. was injured by a bullet fragment. Schuyler W., a patron who had brought his nephew and the nephew's friends to skate for the event and who was outside using his vape device at the time, sustained a gunshot wound to the leg, inside his right thigh, which required hospitalization for approximately three weeks following surgery.
San Bernardino County Sheriff's deputies and investigators who responded to the scene of the shooting collected bullets and bullet fragments and photographed the scene. Police recovered 12 bullet casings and approximately 10 bullet fragments from the scene as well as the shooting victims, which came from four guns. Three .45 caliber casings were fired from Big Will's semi-automatic handgun. Three 9-millimeter casings were fired from Javier L.'s Ruger semi-automatic handgun. Six .40 caliber Smith & Wesson casings were all fired from the same third gun. Bullet fragments from a fourth gun, a .38 Special caliber, were also recovered.
Detective Smith, acting as case agent during the investigation, attended the autopsy of Big Will and collected a bullet that was removed from his body. The bullet that killed the victim was described as a .38 Special caliber.
A sheriff's investigator who received the dispatch about the shooting, responded to the hospital where she obtained the bullet that was removed from Schuyler W.'s leg. The bullet extracted from Schuyler W. was consistent with a .40 caliber Smith and Wesson. The investigator also interviewed Big Will's daughter, who was also a guard with her father's security firm, and who was able to identify a photograph of defendant George from a photo array.
After being admonished of his rights and interviewed, defendant admitted he was a member of the NAW gang, which stands for "Niggas Always Wit it," although he did not "mess with them" anymore, and his moniker was Shamrock. He and his friends decided to go to Cal Skate on New Year's Eve, but some of his friends had to wait for their "home girl" so defendant and his brother left in his brother's car.
In some places the gang name was recorded as "Wid" it, while in others, it is reported as "Wit" it.
At the rink, defendant's brother did not want to pay the $25 admission, so defendant and his brother turned to leave, as friends were entering. Defendant told them he and his brother were not going in, and the two sat in the car and smoked while they tried to figure out what they would do.
After midnight, there was a disturbance and the group of defendant's friends came out, arguing with security because they had been kicked out of the skate rink. Outside the rink, the guard had pointed his Taser at Maurice, making defendant and his companions more angry. Defendant got out of his brother's car. Wesley, one member of the group, got into the brother's car, while defendant and Maurice got into the backseat of "T's" car. The group intended to teach the security guard a lesson for speaking to them disrespectfully and not returning Maurice's hat.
After leaving the parking space, the white car stopped and the headlights were extinguished. As the car started rolling, defendant and Maurice fired shots through the open window of the back seat of the car as they left the parking lot. Defendant used a gun belonging to "T" that was in the car. Defendant was shooting towards the security guard.
Defendant, who had originally gotten into the first car with his brother, had gotten into the white car, driven by "T," and sat in the back seat behind the passenger. Defendant identified "T" as "Topaz," an NAW member with a gang related conviction. Defendant disclosed that Maurice was the person who had been involved in the confrontation with the security guard that led to their expulsion from the skating rink. Defendant and his associates were angry because the security guard had talked down to them, was abusing his authority, and needed to be taught a lesson.
A gang expert testified that based on defendant's admitted membership in the gang, his gang tattoos, the predicate gang-related crimes of which other NAW member had been convicted, and the fact the gang members were motivated by an overwrought need to teach a lesson to someone who had been disrespectful toward them, defendant was a gang member and the crime was committed for the benefit of the gang.
Defendant and others were charged with the murder of Richard W. (count 1, Pen. Code, § 187, subd. (a)), the attempted murder of Schuylar W. and Javier L. (counts 2 and 3, Pen. Code, §§ 664 and 187, subd. (a)), and shooting at an occupied building (count 4, Pen. Code, § 246). It was further alleged that all charged crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)C)). In addition, multiple enhancements relating to personal use or discharge of a firearm were made respecting the murder and attempted murder counts (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subds. (b), (c), (d), & (e)(1)).
Due to delays in the codefendants cases, the People requested and the court granted a severance of defendant's case from theirs.
Following jury trial, defendant was convicted of all counts and true findings were made as to all enhancement allegations. At sentencing, defendant was committed to state prison for 25 years to life for count one, a consecutive term of 25 years to life for the gun discharge enhancement (Pen. Code, § 12022.53, subds. (d) & (e)(1)), plus a concurrent 10-year term for the gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)); a consecutive term of 15 years to life for the attempted murder in count two, plus a consecutive term of 25 years to life for the gun discharge enhancement (Pen. Code, § 12022.53, subds. (d) & (e)(1)), with a concurrent 10-year term for the gang enhancement; a consecutive term of 15 years to life for count three, with a consecutive term for the gun discharge enhancement (Pen. Code, § 12022.53, subds. (d) & (e)(1)), and concurrent 10-year term for the gang allegation. The court stayed the term for count four, shooting at an occupied building (Pen. Code, § 654).
On March 11, 2019, appellant filed a notice of appeal.
DISCUSSION
1. The Evidence Does Not Support Convictions for Attempted Murder as to Counts Two and Three Under the Kill Zone Theory.
At trial, the prosecution's theory of defendant's guilt on the attempted murder counts, counts two and three, was based exclusively on the "kill zone" theory. The court instructed the jury on the elements of attempted murder, including the following:
"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 Schuylar W. or Javier L., the People must prove that the defendant not only intended to kill Richard W. but also either intended to kill Schuylar W. or Javier L., or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Schuylar W. or Javier L. or intended to kill Richard W. by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Schuylar W. or Javier L."
On appeal, defendant claims there is insufficient evidence to support the convictions for attempted murder on the "kill zone" theory, in light of the California Supreme Court's decision in People v. Canizales (2019) 7 Cal.5th 591 (Canizales). The People agree. We agree.
In reviewing a sufficiency of evidence claim, our role is limited. "'"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. [Citation.]'"" (People v. Smith (2005) 37 Cal.4th 733, 738-739, quoting People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see also, Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L. Ed. 2d 560, 99 S. Ct. 2781].)
It is well-settled that to prove the crime of attempted murder, the prosecution must establish "the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Lee (2003) 31 Cal.4th 613, 623.) When a single act is charged as an attempt on the lives of two or more persons, the intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be "transferred" from one attempted murder victim to another under the transferred intent doctrine. (People v. Bland (2002) 28 Cal.4th 313, 327-328 (Bland); see also, People v. Souza (2012) 54 Cal.4th 90, 120.)
A lot of water has flowed under the bridge since the decision in Bland. The kill zone theory embraced by Bland, as it relates to multiple attempted murder charges, is necessarily defined by the nature and scope of the attack. (People v Perez (2010) 50 Cal.4th 222, 232.) It could lead to some anomalous results, such as in Perez, where a defendant was convicted of eight counts of attempted murder after firing a single shot at a group of police officers standing in close proximity with each other, and 60 feet away from defendant. There, the court held that the nature and scope of defendant's attack on the group had not created a zone of fatal harm around them and that Bland did not apply. (Perez, supra, 50 Cal.4th at p. 232.) "The indiscriminate firing of a single shot at a group of persons, without more, does not amount to an attempted murder of everyone in the group." (Ibid.) Thus, a single count of attempted murder could stand, but not eight counts. Of course, this did not mean that defendant's act of endangering the lives of the other individuals in the group would go unpunished, where Perez was properly convicted of multiple counts of assault with a semiautomatic firearm on a peace officer.
However, at least one single-bullet case that gave rise to two counts of attempted murder has been affirmed, where the defendant fired from behind the car in which a mother was driving, while her baby was in a car seat directly behind her. (People v. Smith (2005) 37 Cal.4th 733, 736-737.) However, that case was not resolved by resorting to the "kill zone" theory.
In People v. McCloud (2012) 211 Cal.App.4th 788, the Court of Appeal held it was error to instruct on the kill zone theory of liability for attempted murder where the defendant was convicted of 46 counts of attempted murder after firing 10 shots from a semiautomatic handgun at a party where over 400 people were present. The reviewing court held that the kill zone theory is not an exception to the mental state requirement for attempted murder. It went on to hold that in order for the kill zone theory to support all 46 convictions, the record would have had to show that defendant tried to kill a targeted person by killing all 46 people in the area where the targeted individual was located. (Id., at p. 798.)
At the appellate level, other courts disagreed on whether the kill zone theory may be used where the method of killing is not designed to ensure the death of everyone in the kill zone. (See People v. Warner (2019) 35 Cal.App.5th 25, 35.) For this reason, the Supreme Court granted review in Canizales and others to resolve the issue.
In Canizales, codefendant Windfield fired five shots in the general direction of two rival gang members, Pride and Bolden, from across the street, a distance of either 100 or 160 feet away. One of his bullets struck an innocent bystander who was near her parked car. The defendants were convicted of one count of murder and two counts of premeditated attempted murder as to Pride and Bolden.
The Supreme Court concluded that the kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm— that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. (Canizales, supra, 7 Cal.5th at p. 607.) In other words, the kill zone theory applies when the 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. However, it reversed the attempted murder convictions as to both defendants because there was insufficient evidence to support an instruction on the kill zone theory.
Specifically, the court held that an instruction on the kill zone theory would have been warranted "only if there was substantial evidence in the record that, if believed by the jury, would support a reasonable inference that defendants intended to kill everyone within the 'kill zone.' To qualify, the record would need to include (1) evidence regarding the circumstances of defendants' attack on Pride that would support a reasonable inference that defendants intentionally created a zone of fatal harm around him, and (2) evidence that Bolden was located within that zone of fatal harm. Taken together, such evidence would permit a finding that defendants harbored the requisite intent to kill Bolden because he was within the zone of fatal harm that defendants intended to create around Pride." (Canizales, supra, 7 Cal.5th at pp. 609-610.)
For further guidance, Canizales instructs us that in determining the defendants' intent to create a zone of fatal harm and the scope of any such zone, "the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target. Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory." (Canizales, supra, 7 Cal.5th at p. 607; see also In re Rayford (2020) 50 Cal.App.5th 754, 769.)
Here, defendant was firing through the open window of a moving vehicle, firing at the security guard. Maurice was also firing out the window, but the record does not reveal who he was aiming at or what his intentions were vis-à-vis the murder victim or the attempted murder victims. Big Will, the murder victim and target, was in the middle of the parking lot heading in the direction of Javier L., but the record does not specify the proximity of Javier L. to Big Will.
Similarly, Schuylar W.'s location was to the left of the door to the rink. Without knowing the proximity of the individuals, or the distance between the defendant and the alleged victims, or other relevant circumstances, it is impossible to say that defendant intended to create a "kill zone," fatal to anyone in the vicinity, as opposed to acting with only conscious disregard of the risk of serious injury or death for those around the primary target. (Canizales, supra, 7 Cal.5th at p. 607.)
There is insufficient evidence to support the attempted murder convictions in counts two and three.
2. The Gang Enhancements Must be Reconsidered on Remand.
Defendant argues that the court imposed an unauthorized sentence by imposing determinate 10-year enhancements pursuant to Penal Code section 186.22, subdivision (b)(1)(C) because he was sentenced to indeterminate terms. The People agree the enhancements were improperly imposed where Penal Code section 186.22, subdivision (b)(5) provides for a minimum parole eligibility period instead for an indeterminate term in lieu of an enhancement. The People also argue the issue is moot with respect to counts two and three because they have conceded that reversal is required on the substantive crimes in those counts. Both parties are correct.
First, the imposition of the 15-year minimum parole eligibility provision of Penal Code section 186.22, subdivision (b)(5), in addition to a concurrent enhancement for same conduct pursuant to Penal Code section 186.22, subdivision (b)(1)(C), is an unauthorized dual punishment (Pen. Code, § 654). Second, a concurrent term for the gang enhancement pursuant to Penal Code section 186.22, subdivision (b), is unauthorized. That section provides, in pertinent part: ". . . [A]ny 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 . . . ." (Pen. Code, § 186.22, subd. (b), italics added.) It has previously been held that the language of the statute prohibits a court from staying a gang enhancement, although a court retains discretion to strike it. (People v. Vega (2013) 214 Cal.App.4th 286, 296-297.)
Third, Penal Code section 186.22, subdivision (b)(5) specifically provides that where an indeterminate term is imposed, a minimum parole eligibility period is to be imposed instead of the determinate enhancement. (People v. Lopez (2005) 34 Cal.4th 1002, 1007; People v. Arauz (2012) 210 Cal.App.4th 1394,1404-1405.) So the 10-year enhancement was inapplicable as to any of the counts.
Even if a determinate enhancement were authorized, the statutory language of Penal Code section 186.22, subdivision (b)(1), providing that it "shall" be imposed "in addition and consecutive to the punishment," is unambiguous, and means that imposition of the enhancement consecutive to the other terms was mandatory if not stricken. (People v. Le (2015) 61 Cal.4th 416, 423, citing People v. Vega (2013) 214 Cal.App.4th 1387, 1396.) Thus, the concurrent terms for the gang enhancements were unauthorized.
But as the People point out, the reversal of the attempted murder counts, to which the errant enhancements were linked, renders the issue moot. "'"[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events." [Citation.]' [Citation.]" (People v. Delong (2002) 101 Cal.App.4th 482, 486.) It is not moot as to count 1. For that count, the minimum parole eligibility period of section 186.22, subdivision (b)(5) applies, pursuant to People v. Lopez, supra, 34 Cal.4th at page 1077.
We therefore decline to reach this issue as to counts 2 and 3, except to provide guidance to the trial court on remand, but we reverse the 10-year gang enhancement on count 1.
3. Defendant's Stipulation to Excusing the Court Reporter for the Reading of the Instructions Was Invited Error.
Defendant argues that his due process right to an adequate appellate record was denied by the actions of the court and his counsel in stipulating that the court reporter need not report the oral reading of the instructions. We disagree.
The "jury instructions are an important part of a criminal trial. Errors in instructions, either alone or together with other trial errors, may mandate reversal of the judgment." (People v. DeFrance (2008) 167 Cal.App.4th 486, 494, citing People v. Silva (1978) 20 Cal.3d 489, 493.) "A criminal defendant is entitled to a record on appeal that is adequate to permit meaningful review." (People v. DeFrance, supra, 167 Cal.App.4th at p. 494, citing People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8; People v. Howard (1992) 1 Cal.4th 1132, 1166.)
However, where the defendant stipulates to not reporting the oral instructions, the failure to record them has not been found to be error. (People v. DeFrance, supra, 167 Cal.App.4th at p. 494.)
Any error was invited. Where a party by his or her own conduct induces the commission of error, the party may be estopped from asserting it as a ground of reversal. (See 9 Witkin, Cal. Procedure (5th ed. 2008), Appeal, § 389 et seq.) The doctrine also precludes a defendant from claiming to have been denied a fair trial by circumstances of the party's own making. (People v. Lang (1989) 49 Cal.3d 991, 1032, citing People v. Hammond (1960) 54 Cal.2d 846, 852).
Defense counsel stipulated that the court reporter be excused from reporting the reading of the instructions. Prior decisional law has held this does not violate due process. (People v. Garrison (1989) 47 Cal.3d 746, 781.) Further, defendant does not argue that any of the instructions given were erroneous, or that the court refused to give a requested instruction. Instead, his argument is posited solely on the speculation that the trial court may have made a mistake in the reading of the instructions, and that defendant has been deprived of a reporter's transcript with which to examine such an error. This does not demonstrate prejudice to any degree.
There was no error.
DISPOSITION
The attempted murder convictions in counts two and three are reversed, along with their attendant gun enhancements. The 10-year gang enhancements on all counts are reversed and the matter is remanded for further proceedings consistent with the views expressed herein. The remainder of the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur:
MILLER
J. FIELDS
J.