Opinion
B296206
04-10-2020
THE PEOPLE, Plaintiff and Respondent, v. JOVANNY GONZALEZ et al., Defendants and Appellants.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Jovanny Gonzalez. Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Perez. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA072383) APPEALS from a judgment of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. As to Defendant Gonzalez, affirmed in part and reversed in part. As to Defendant Perez, affirmed in part and reversed in part. Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant Jovanny Gonzalez. Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Perez. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
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Jurors convicted defendants Jorge Perez and Jovanny Gonzalez of the murder of Armando Reyes and the attempted murder of Reyes's girlfriend S.B. S.B. drove Reyes to the scene of the shooting, and Perez drove Gonzalez. Gonzalez shot Reyes as he stepped out of S.B.'s car. Perez and Gonzalez were upset with Reyes because Reyes had insulted their gang. After the shooting, S.B. stopped at a nearby street because she knew that Reyes would not make it to the hospital.
With respect to the attempted murder of S.B., the trial court instructed jurors on the kill zone theory, and the prosecutor urged jurors to apply that doctrine to find defendants guilty of the attempted murder of S.B. People v. Canizales (2019) 7 Cal.5th 591 (Canizales), decided after the trial in this case, significantly narrowed the reach of the kill zone theory. Canizales warned that "there will be relatively few cases in which the theory will be applicable and an instruction appropriate." (Id. at p. 608.) The high court held that such an instruction is appropriate where the "only reasonable inference from the circumstances of the offense is that defendant intended to kill everyone in the zone of fatal harm." (Ibid.) Applying Canizales, we conclude the trial court erred in instructing jurors on the kill zone theory and the error prejudiced defendants, requiring the reversal of their convictions for the attempted murder of S.B.
Perez also challenges the sufficiency of evidence showing that he aided and abetted Gonzalez with the specific intent to kill S.B. His argument is persuasive because no evidence supported the inference that he intended Gonzalez to shoot S.B. (as opposed to Reyes).
Defendants also challenge the admission of testimony from a deputy coroner who did not perform Reyes's autopsy, but instead, reviewed the autopsy performed by his retired colleague. Defendants forfeited their objection by failing to raise it in the trial court. In any event, the only import of the coroner's testimony was that Reyes died of multiple gunshot wounds. Other witnesses testified that Reyes died shortly after Gonzalez shot him, and the coroner's testimony was cumulative. Therefore, assuming error arguendo in the admission of the deputy coroner's testimony, the error was harmless beyond a reasonable doubt.
We reverse defendants' convictions for attempted murder of S.B. and remand for resentencing as to Perez, and for resentencing and possible retrial on the attempted murder count as to Gonzales as long as such retrial is not based on a kill zone theory. In all other respects, we affirm the judgment.
FACTUAL BACKGROUND
Reyes was a high-ranking member of the Palmas 13 Kings gang, an Antelope Valley gang. Omar Olivares also was a Palmas 13 gang member. Reyes and Oliveras often used methamphetamine together. In June 2017, S.B. was Reyes's girlfriend.
Gonzalez and Perez were members of the Midtown Criminals, also known as MTC, another gang in the Antelope Valley. Perez's moniker was Squeeks (also spelled Squeaks). 1. June 3 , 2017
S.B. drove Reyes to pick up Perez. Reyes wanted Perez, a tattoo artist, to tattoo him. Oliveras was in the backseat of S.B.'s car. After they picked up Perez, S.B. did not see Perez because Reyes was aggressive with her when she tried to look at Perez.
Before they reached a location where Perez could tattoo Reyes, Reyes and Oliveras argued. The argument concerned whether Oliveras stole Reyes's stash of methamphetamine. Reyes told S.B. to stop the car to drop off Olivares. S.B. refused until the group reached a gas station in Rosamond, where she stopped the car. Reyes told Oliveras to exit the car. Oliveras exited, and Perez followed even though Reyes had not told Perez to leave the car. Perez was "irritated" that Reyes left him and Oliveras at the gas station. 2. Reyes and Perez's June 4 , 2017 Facebook Messages
On June 4, 2017, Reyes and Perez had the following colloquy on Facebook:
By quoting these messages, we do not condone the vulgar and derogatory language in the messages.
Reyes: "I need my money or tatt or I can make things really bad."
Perez: "After u doped me off in Rosamond? . . . now u wanna treated me?"
Reyes: "I do what I want when I want."
Perez: "Not around my parts."
Reyes: ". . . Foo I'm a dangerous azz enemie to have."
The colloquy continued:
Perez: "Look foo u can miss me with the fake politics bullshit . . . I ain't with that shit . . . wanna treated me with the light? . . . . go ahead I dare u."
Reyes: "Fuck u then and mantecas ol turn down ass foos that's why u got dissed and didn't do shit."
Reyes repeated, "Fuck mantecas" and Perez wrote, "Fuckin p.c." Perez testified mantecas meant lard. Eventually Reyes said, "Fuck ur dead homies." Perez testified that Reyes's comment "[f]uck your dead homies" was an insult.
During their conversation, Perez told Reyes, "Come over and stop wolfing." Perez testified that meant "[s]top messaging me talking shit." Perez told Reyes, "U ain't bout shit but running ur mouth," and instructed him, "COME OVER BITCH."
Then the following colloquy occurred:
Perez: "I fuckin dare u."
Reyes: "U ain't bout that."
Peres: "Come and see."
Reyes: "I woulda smoked u."
Perez told Reyes, "Don't be a lame," and Reyes said, "Like I said fuckkkkk mtc" and repeated multiple times "Fuck mtc." Reyes also repeated the insult "fuck ur dead homies."
Perez showed his conversation with Reyes to Perez's fellow MTC gang members with monikers Menace and Blue. All three were upset about Reyes's insults. Later Perez showed the messages to "Mousey," another MTC member who wanted to fight Reyes because of the messages. Perez asked Reyes his location so that Mousey could fight Reyes. Perez testified that he sent the Facebook messages to Reyes because he did not want to appear weak in front of his gang members.
Reyes's last message to Perez said, "I'm pulling up." The only reference in the texts to S.B., was Perez's comment, "Tell ur fat ugly bitch . . . I said thanks for the ride." 3. June 4 , 2017 Shooting of Reyes
Reyes went to a tattoo shop and obtained his tattoo from someone other than Perez. Reyes also smoked methamphetamine. S.B. and Reyes went to Reyes's brother's house, where they drank several drinks. S.B. overheard Reyes tell his brother that he would handle something one-on-one. S.B. did not know what Reyes intended to handle one-on-one. Shortly afterwards Gonzalez shot Reyes. 4. S.B.'s description of the shooting
As S.B. was driving Reyes home, Reyes spotted a white Honda. The car was stopped in the middle of the street. S.B. and Reyes approached the stopped car, and the driver sped off. The white Honda had a dealer license plate.
Reyes told S.B. to follow the white car. S.B. did not want to follow the white Honda, but Reyes insisted that she follow it. S.B. made a U-turn and followed the white car. The white Honda stopped. As S.B. pulled up alongside the white Honda, Reyes exchanged words with its occupants. Reyes was positioned closer to the white Honda than S.B.
Reyes announced his gang name. Someone in the white Honda said MTC. Reyes put one foot out of the car, and it looked like he was getting out. Then he exited S.B.'s car and said he wanted to fight. Then S.B. heard gunshots. The gunshots occurred seconds after Reyes exited S.B.'s car. No gunshot hit S.B.
S.B. also testified she did not hear the gunshots but only felt them. She testified, "It just felt like wind. Like quick wind going past my face."
Either Perez or Gonzalez said, "[T]hat's what you get." Reyes jumped into the car and told S.B. to get down and drive away. Reyes said, "Go, leave," after the gunshots. S.B. drove to the next street where Reyes stopped breathing. S.B. planned to take Reyes to the hospital "but then he stopped breathing" and she "knew [she] couldn't make it." People helped Reyes out of the car and a nurse in the neighborhood tried to revive him, but according to S.B., "[H]e was already gone."
S.B. asked someone to call 911. In the 911 call, S.B. described "guys pulled up to the car, and they just started shooting him." She indicated that the shooter was in a white Honda Accord. S.B. stated that Reyes was no longer breathing. When the paramedics arrived, they could not help Reyes.
Later, S.B. observed bullet holes in her car. S.B.'s car sustained a bullet to the front passenger door jam, below the locking mechanism. A bullet traveled from inside out through S.B.'s windshield near the driver seat.
When interviewed after the shooting, S.B. said that Reyes exited her car; S.B. heard five to seven shots; then Reyes "fell back into her vehicle." The prosecutor clarified that S.B. said Reyes fell into the car after S.B. heard five to seven gunshots.
Based on photographic evidence, Deputy Sheriff Steven Blagg testified that a bullet struck the door jam in S.B.'s vehicle. A bullet also hit the left-lower corner of the windshield. The bullet traveled from inside the vehicle through the windshield. Bragg testified that the trajectory of the bullet was consistent with S.B.'s testimony that she felt a bullet "whiz from behind her."
5. Evidence of Reyes's Death
Deputy Sheriff Blagg testified about photographs of Reyes. One showed Reyes lying alongside S.B.'s vehicle. When Reyes's body was turned over, a fired bullet was found underneath Reyes. Blagg, who attended the autopsy, testified that a "total of four projectiles [were] found inside the victim during autopsy." Blagg described a photograph of Reyes, which showed four gunshot wounds.
Lawrence Nguyen, a deputy medical examiner, testified that he independently reviewed all of the materials from a retired deputy medical examiner who performed the autopsy on Reyes. Over objection, Nguyen testified that Reyes's cause of death was multiple gunshot wounds. Nguyen then testified (without further objection) that Reyes suffered from seven gunshot wounds, five of which were fatal. Gunshots entered Reyes's right abdomen, right side of his back and passed through the right lung, right lower back above the buttocks, left side of the lower back, left shoulder, left forearm, left hand. Only the shot to Reyes's abdomen was from the front.
Nguyen observed no soot or stippling which is "indicative of a shooting from a greater distance." When asked if they were "at a longer distance," Nguyen testified that he would categorize the shots to Reyes's back as at a "distant range." According to him, "distant range," meant more than two or three feet.
Nguyen testified as to photographs, which were admitted into evidence. The photographs showed the location of the entry and exit wounds in Reyes's body. The photographs appear to be taken at the location where S.B. drove Reyes immediately after the shooting. Typewritten text showing the location of the wounds was entered later. Even without the text, the bullet wounds are apparent from some of the photographs. A handwritten diagram also showed the location of the entry and exit wounds.
6. Gonzalez's Statement to an Informant
Prior to trial, Gonzalez spoke with an informant and his recorded statements were played for jurors. Gonzalez said that police were questioning him on murder and probably found his .380 (a type of handgun). Later he said he did not know if police found the .380. Gonzalez said he was from Midtown Criminals and his moniker was Magic. Gonzalez said that he owned a 2017 Honda Accord. Gonzalez said that Squeeks (Perez) had been "busted already."
Gonzalez said he and Squeeks "gonna go down." Gonzalez acknowledged "we smoked him." Gonzalez indicated he was the shooter. Gonzalez said, "[T]hey fucked with the wrong person."
Gonzalez said, "[M]e and him knew this was gonna happen. But the thing is that the—the—they have to have—what do they have, homie? Fool, this case was cold. Cold."
Gonzalez was uncertain whether officers "found the .380." Gonzalez explained he "didn't get rid of it. [He] gave it to [his] homie. 'Cause it was [his] homie's."
Gonzalez said there was only one witness—"a girl, but she was on dope." Gonzalez said that the girl did not know his name. The informant said, "You should have got rid of her, homie." Gonzalez responded, "No, I couldn't at the time. The bullets were empty." Gonzalez repeated, "[T]he burner was empty." The agent replied, "Seriously? Was she there, though? Fuck." Gonzalez responded, "I had glasses on and a hat." Gonzalez stated, "[I]f anything, they would have got him because he's the only link. The only link I have to this case is him." Gonzalez did not specifically identify his link.
Gonzalez explained that he disguised his car as he "didn't even have no license plate on it." After the shooting he had the windows tinted. He also washed the car three times.
In an apparent reference to the text messages, Gonzalez indicated that someone "had dissed my dead homie." Then Gonzalez said, "Hey, let me borrow the burner." "I hop out the backseat. Hop the backseat, put—put—put six in that nigga, and he died." Gonzalez said he got out of the car and "[l]it him up." Gonzalez explained, "I was in the backseat. I was gonna hop out the back because I had—I had the burner in—in my daughter's . . . car seat." Gonzalez repeated that he was wearing a hat and "[s]he'd never seen me before, and she was on dope."
As previously noted, we do not condone such derogatory language.
7. Perez and His Sister Present Alibi Evidence
In his defense, both Perez and his sister testified that Perez was babysitting for his sister's children at the time Reyes was killed. Perez did not reveal that he was babysitting when Deputy Sheriff Blagg first questioned Perez about the killing.
PROCEDURAL BACKGROUND
The amended information contains counts 1, 2, 3, 5, 7, 8, and 9. In count 1, the People charged both defendants with the murder of Reyes. In count 2, the People charged the defendants with the attempted premediated murder of S.B. The People further charged defendants with shooting at an occupied vehicle. Firearm and gang enhancements were alleged with respect to all the above offenses.
The People alleged additional offenses against Gonzalez, including two counts of possession of a firearm by a felon and two counts of unlawful possession of ammunition, all with a gang enhancement.
The People alleged that Gonzalez suffered from two prior serious and violent felonies pursuant to the "Three Strikes" law. The People alleged one prior strike offense against Perez. The People further alleged that Gonzalez and Perez each suffered one prior offense within the meaning of Penal Code section 667.5.
Undesignated statutory citations are to the Penal Code.
Prior to trial, the trial court agreed to defense counsel's request that any objection on hearsay grounds would encompass an objection based on the Sixth Amendment.
With respect to the attempted murder, the court instructed jurors on the kill zone theory. The instruction shall be described in more detail in our Discussion section. As described in the Discussion section, the prosecutor relied on the kill zone instruction for purposes of arguing that Gonzalez and Perez were guilty of the attempted murder of S.B.
During closing argument, Gonzalez's counsel did not deny that Gonzalez shot Reyes. Counsel argued Gonzalez was acting on a "survival" instinct not out of "maliciousness." Counsel contended Gonzalez tried "to make himself look as bad as he can" for the government informant. Counsel argued, "There was no intent to kill [S.B]. And, as far as the kill zone, there was no intent to have her in the kill zone and there was no malice. They had no malice towards [S.B.]."
During closing argument, Perez's counsel argued Perez was babysitting when Reyes was shot. Counsel claimed Gonzalez was only boasting when he described the killing to the agent. Counsel maintained Gonzalez's statements to the agent could not be relied upon without corroboration. Counsel reminded the jury that Reyes initiated the fight. Counsel further contended that Perez's messages with Reyes did not show an intent to have Reyes killed. Finally, Perez's counsel argued there was no evidence Perez wanted S.B. dead, and that Perez had an alibi.
With respect to Gonzalez, the jury found him guilty of the first degree murder of Reyes and found true the gang enhancement and the allegation that Gonzalez personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (d). The jury also found true the allegation that a principal personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (d) and (e)(1).
The jury also found Gonzalez guilty of the attempted murder of S.B. and that the attempted murder was committed for the benefit of a gang. In addition, the jury found true that in the commission of the attempted murder, Gonzalez personally and intentionally discharged a firearm and that a principal personally and intentionally discharged a firearm. In contrast, the jury found not true the allegation that the attempted murder was committed willfully and with premeditation and deliberation.
Jurors found Gonzalez guilty of shooting at an occupied vehicle and found the gang allegation true. The jury also found Gonzalez personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (d) and that a principal personally and intentionally discharged a firearm within the meaning of section 12022.5, subdivisions (d) and (e)(1).) Finally, the jury found Gonzalez guilty of two counts of possession of a firearm by a felon, for one of which a gang allegation was found true, and of two counts of unlawful possession of ammunition; only one count included a gang allegation, which the jury found true.
Regarding Perez, the jury found him guilty of murder and found true the gang and firearm enhancements within the meaning of section 12022.53, subdivisions (d) and (e)(1). The jury further found Perez guilty of the attempted murder of S.B. and the gang enhancement to be true. In contrast, the jury found not true the allegation that the attempted murder was committed willfully and with premeditation and deliberation. Finally, the jury convicted Perez of shooting at an occupied vehicle and found true the gang and firearm enhancements within the meaning of section 12022.53, subdivisions (d) and (e)(1).
Gonzalez admitted he suffered a prior conviction for robbery. He also admitted that it was a serious and violent felony, and that it qualified under sections 667, subdivision (a) and 667.5, subdivision (b).
Perez admitted that he suffered two prior convictions for robbery and that they constituted prior strike convictions. One of them was committed while he was a juvenile. He also admitted that one fell within the ambit of section 667.5, subdivision (a) and subdivision (b).
The court sentenced Gonzalez to an indeterminate term of 100 years to life and a determinate term of 30 years 4 months. The court struck Perez's prior juvenile strike. The court sentenced Perez to an indeterminate term of 100 years to life and a 19-year determinate term. Gonzalez and Perez timely appealed.
DISCUSSION
I. No Substantial Evidence Shows that Perez Had the Intent to Aid and Abet the Attempted Murder of S.B.
The trial court instructed the jury that to find aiding and abetting, they must find the aider and abettor acted "[w]ith the intent or purpose of committing or encouraging or facilitating the commission of the crime." Perez argues, "[T]here is no evidence appellant [Perez] knew of any criminal purpose Gonzalez harbored toward [S.B.] or that appellant specifically intended to kill her." The Attorney General disagrees, citing evidence that Perez lured Reyes to the scene of the killing, and when Reyes arrived with S.B., defendants "did not abandon their planned assault." The Attorney General also cites evidence indicating that defendants intended to kill Reyes (as opposed to S.B.).
" 'In reviewing the sufficiency of the evidence to support a judgment of conviction, we examine the entire record in the light most favorable to the prosecution, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, to determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 87.)
A conviction for attempted murder requires proof that the defendant intended to kill the victim and a direct but ineffectual act toward accomplishing that goal. (People v. Perez (2010) 50 Cal.4th 222, 229.) " ' "[G]uilt of attempted murder must be judged separately as to each alleged victim." ' [Citation.] '[T]his is true whether the alleged victim was particularly targeted or randomly chosen.' " (Id. at p. 230.) "Direct evidence of intent to kill is rare, and ordinarily the intent to kill must be inferred from the statements and actions of the defendant and the circumstances surrounding the crime." (Canizales, supra, 7 Cal.5th at p. 602.) The aider and abettor's guilt is based "on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." (People v. McCoy (2001) 25 Cal.4th 1111, 1117, italics omitted.)
No substantial evidence supported a finding that Perez specifically intended Gonzalez shoot S.B. At trial, the prosecutor did not advance that theory. Evidence that Perez lured Reyes to the scene does not support the inference that Perez wanted S.B., as opposed to Reyes, killed. While ample evidence showed that Perez and his gang members were upset by Reyes's insults to their gang, no evidence showed Perez harbored any ill will towards S.B.
The fact that defendants did not abandon their plan to kill Reyes when they observed that S.B. was present does not support the inference that Perez had the intent to kill S.B. As the trial court instructed jurors, abandonment requires first harboring the intent and then withdrawing from participation and notifying the others of the withdrawal. To repeat, the Attorney General's identification of evidence that defendants intended to kill Reyes does not support the inference that Perez intended to kill S.B.
The court instructed jurors as follows: "Before the commission of the crimes charged in Counts 1, 2, and 9, an aider and abettor may withdraw from participation in those crimes, and thus avoid responsibility for those crimes by doing two things: First, he must notify the other principals known to him of his intention to withdraw from the commission of . . . those crimes; second, he must do everything in his power to prevent its commission." The instruction continued: "The People have the burden of proving that the defendant was a principal in and had not effectively withdrawn from participation in those crimes. If you have a reasonable doubt that he was a principal in and participated as an aider and abettor in a crime charged, you must find him not guilty of that crime."
II. The Trial Court Erred In Instructing The Jury on a Kill Zone Theory
Defendants argue that under Canizales, the trial court erred in instructing jurors on a kill zone theory. The Attorney General counters that there was substantial evidence defendants intended to create a kill zone and kill anyone in that zone. The parties also dispute whether defendants suffered prejudice from the kill zone instruction.
Defendants did not object to the kill zone instruction in the trial court, but the issue is not forfeited because this asserted instructional error would affect defendants' substantial rights. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) We therefore review defendants' claim on the merits.
A. Additional Factual Background
1. Jury instructions
The trial court instructed jurors on the kill zone as follows: "A person who primarily intends to kill one person and another person known as the primary target may—at the same [time]—attempt to kill all people in the immediate vicinity of the primary target. [¶] This area is known as a kill zone. A kill zone is created when a perpetrator specifically intending to kill the primary target by lethal means, also attempts to kill anyone in the immediate vicinity of the primary target. If the perpetrator has this specific intent and employs the means sufficient to kill the primary target and all others in the kill zone, the perpetrator is guilty of the crimes of attempted murder of the other person within time [sic] kill zone. [¶] Whether a perpetrator . . . actually intended to kill a victim either as a primary target or as someone within the kill zone of risk is an issue for you to decide."
The trial court also instructed jurors, "In order to prove attempted murder, each of the following elements must be proved: Number one, a direct but ineffectual act was done by one person towards killing another human being and number two, that person committing the act harbored express malice aforethought namely a specific intent to kill unlawfully another human being."
The court instructed jurors that if they find defendants guilty of attempted murder, they must determine whether the attempted murder was willful, deliberate, and premeditated.
2. Prosecutor's argument
With respect to the attempted murder of S.B., the prosecutor argued: "Now, let's talk a little bit about [S.B.] because she's also the victim here and she's in count 2. . . . [S.B.] is count 2, an attempted murder. An attempt is just, you know, trying to do the crime but you failed because of something you didn't foresee basically. Something unusual was happening. Neither unusual [sic] but something happened to prevent the murder from crime [sic], neither does he his missed [sic] before he ran out of bullets; okay?"
The prosecutor continued: "The judge instructed you on a [ ]kill zone theory which means when somebody is behaving in such a way that there—by the smallest of the area and how many shots are fired unloading a gun into an area with multiple people, the unit, your primary target is one person that you also attempt to kill everybody there because of the nature of your actions, then that's what a kill zone [sic]." The prosecutor also argued that for the kill zone "you have to believe that the intent was to kill both individual [sic], but that one was a primary target and one was [a] secondary target."
The prosecutor argued, "Imagine the trajectory of the bullet passed next to her [S.B.]. That's about as close as it gets. And she could see it, she heard what happened." The prosecutor also played portions of Gonzalez's statements to the agent but our record does not show which portions were played. The prosecutor argued Gonzalez would have killed S.B. if he had more bullets.
B. Legal Background
Our Supreme Court announced the kill zone doctrine in 2002 and limited it in 2019. In identifying the kill zone doctrine, People v. Bland (2002) 28 Cal.4th 313 (Bland) first explained that attempted murder requires the intent to kill a specific victim. (Id. at p. 328.) Intent to kill cannot transfer from one attempted murder victim to another. (Id. at p. 331.) Nevertheless, a defendant may harbor a concurrent intent to kill a primary target and to kill everyone in the area of the primary target. (Id. at pp. 330-331.) The high court described the area around the primary target as the kill zone. (Ibid.) In Bland, the high court concluded that a defendant who "fired a flurry of bullets at the fleeing car and thereby created a kill zone" could have intended to kill the primary target and the other passengers in the fleeing car. (Ibid.)
In Canizales, our Supreme Court narrowed the circumstances in which the kill zone doctrine would apply. Canizales held that "a jury may convict a defendant under the kill zone theory only when the jury finds that: (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." (Canizales, supra, 7 Cal.5th at pp. 596-597.)
In contrast to Bland, Canizales limits a kill zone instruction to circumstances in which "the only reasonable inference" supports it. Canizales cautioned that "under the reasonable doubt standard, a jury may not find a defendant acted with the specific intent to kill everyone in the kill zone if the circumstances of the attack would also support a reasonable alternative inference more favorable to the defendant." (Canizales, supra, 7 Cal.5th at p. 597.)
Evidence that a defendant acted with conscious disregard of the risk to others in a particular area does not support a kill zone instruction. (Canizales, supra, 7 Cal.5th at p. 597.) To determine whether a defendant intended to create a zone of fatal harm, the jury should consider the circumstances of the offense, including the type of weapon used, number of shots fired, proximity of the defendant to the alleged victims and proximity of the victims to the target. (Id. at p. 607.)
Canizales applied the foregoing principles to a shooting at a party and concluded the trial court erred in giving a kill zone instruction. "[T]he evidence at trial showed that [one defendant] attacked his target by firing five bullets from a nine[-]millimeter handgun at a distance of either 100 or 160 feet away. Moreover, the attack occurred at a block party on a wide city street, not in an alleyway, cul-de-sac, or some other area or structure from which the victims would have limited means of escape." (Canizales, supra, 7 Cal.5th at p. 611.)
Canizales further concluded that instructing jurors on the kill zone prejudiced the defendants in that case. Jurors were instructed defendants could be guilty of attempted murder if they intended to kill the attempted murder victim or if they intended to kill a primary target and the attempted murder victim was in the kill zone. (Canizales, supra, 7 Cal.5th at p. 612.) The Supreme Court concluded that there was conflicting evidence as to whether defendants intended to kill the victim. (Id. at p. 616.) The given kill zone instruction had the potential to cause confusion about the attempted murder and the prosecutor's argument exacerbated the confusion. (Id. at pp. 616-617.) "[I]t cannot be said beyond a reasonable doubt that a reasonable jury would conclude defendants targeted [the attempted murder victim] specifically." (Id. at p. 617.)
Canizales "anticipate[d] there will be relatively few cases in which the [kill zone] theory will be applicable and an instruction appropriate." (Canizales, supra, 7 Cal.5th at p. 608.) The high court emphasized that "[t]he use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction." (Ibid.)
C. Application of Canizales to this Case
Although there was evidence that defendants endangered S.B., the evidence does not support only the conclusion that defendants intended to kill Reyes and everyone within a fatal zone of harm. There was no evidence that Gonzalez aimed at S.B., and he did not hit her. There was no evidence that Gonzalez shot indiscriminately, targeting everyone in S.B.'s vehicle. In her 911 call, S.B. herself described the shooter as shooting at "him," meaning Reyes.
The Attorney General emphasizes that Gonzalez told the police agent he did not shoot at S.B. because he ran out of bullets. Gonzalez's statement supports multiple inferences. Gonzalez's statement suggests both that Gonzalez would have shot S.B. if he had more bullets and that he was targeting only Reyes with the bullets he had. The latter inference is further supported by the fact that Gonzalez shot Reyes multiple times. Additionally, Gonzalez told the agent that "I hop out the backseat. Hop the backseat, put—put—put six in that nigga, and he died." Put simply, that Gonzalez and Perez intended to kill Reyes and everyone around him is not the only inference to be drawn from the evidence. Under these circumstances, Canizales counsels that it was error to give a kill zone instruction.
D. Post-Canizales Cases Finding a Kill Zone Instruction Was Warranted Are Distinguishable
The Attorney General relies on two published post-Canizales cases in which appellate courts have concluded that a kill zone instruction was warranted. As we shall explain, the circumstances of those cases are distinguishable. The circumstances are important because in Canizales, the Supreme Court requires consideration of "the circumstances of the offense." (Canizales, supra, 7 Cal.5th at p. 607.) We are guided by our high court's warning that there will be "relatively few cases in which the [kill zone] theory will be applicable and an instruction appropriate. (Id. at p. 608.)
In People v. Cerda (2020) 45 Cal.App.5th 1, Division Three of this court found sufficient evidence to support a kill zone instruction when the defendants shot into two separate houses with an assault rifle. The use of the assault rifle permitted the defendants to use ammunition that traveled four times the velocity of handgun ammunition. (Id. at p. 16.) Multiple shots penetrated each of the houses including internal walls and fixtures. (Ibid.) Defendants shot at locations in the house that they knew were being occupied. (Id. at p. 17.) Additionally, there was evidence that "the sole purpose for using an AK-47 was to kill." (Id. at p. 18.) Here, in contrast to Cerda, Gonzalez did not use an assault rifle but a significantly slower and less powerful firearm, and fired six shots (at least arguably) targeted at Reyes.
In People v. Windfield (2019) 44 Cal.App.5th 196, the appellate court upheld a kill zone theory where two defendants shot "a hail of bullets" from two different guns at a primary target who was walking right next to another person. (Id. at p. 206.) The court explained, "The very fact that they created a hail of bullets at close range to two individuals who were either side by side or with [one in front of the other] is the very definition of creating a kill zone." (Id. at p. 218.) In contrast, in the case before us, there was only one shooter; there was no evidence of a "hail of bullets," and there was no evidence pinpointing the distance between the shooter and S.B. Further, the coroner found no indications of a shooting at close range.
E. Instructing Jurors Under the Kill Zone Prejudiced Defendants
Under Canizales, we must consider the instructions provided and counsels' argument to determine whether there is a "reasonable likelihood that the jury understood the kill zone instruction in a legally impermissible manner." (Canizales, supra, 7 Cal.5th at p. 614.) Neither the instruction nor the prosecutor's argument informed jurors how to define a kill zone. The instruction improperly referred to a "kill zone of risk" and the prosecutor compounded the error by indicating that a kill zone was "the smallest of the area." Neither the instruction nor the argument told the jurors "to consider the circumstances of the offense in determining the application of the kill zone." (Id. at pp. 607, fn. 5, 613.) As in Canizales, jurors could have based the attempted murder conviction on a legally inaccurate version of the kill zone theory. (Id. at p. 614.)
Because the trial court should not have instructed jurors on the kill zone, we must apply the harmless beyond a reasonable doubt standard of prejudice. (Canizales, supra, 7 Cal.5th at p. 615.) We cannot find beyond a reasonable doubt that jurors would have rendered the same verdict absent the kill zone instruction.
The prosecutor relied only upon the kill zone theory when urging jurors to convict defendants of the attempted murder of S.B. It is not clear jurors would have concluded that Gonzalez specifically intended to kill S.B. because the prosecutor did not advance that theory and jurors rejected a premeditation allegation. As we previously discussed, no substantial evidence supported the theory that Perez had the intent to aid and abet the attempted murder of S.B.
In sum, it was prejudicial error for the trial court to have given a kill zone instruction as to the attempted murder of S.B. thus requiring reversal of both defendants' convictions of this offense. If the People so choose, Gonzalez may be retried for the attempted murder of S.B., but not on a kill zone theory given our ruling that the evidence does not support the inference required by Canizales to retry the case on a kill zone theory.
III. Defendants Forfeited their Challenges to Dr. Nguyen's Testimony and Any Error in Admitting the Testimony Was Harmless Beyond a Reasonable Doubt
The prosecutor informed the trial court that the medical examiner who performed the autopsy (Dr. Chinwah) had retired and that another medical examiner would testify. Defense counsel did not object. Dr. Nguyen testified at trial. Defense counsel objected only to the following question: "[I]n your opinion, what was the cause of death."
Dr. Chinwah's given name was not presented at trial.
On appeal, defendants argue annotations to a photograph of Reyes's dead body and the description of wound paths, including their fatal nature, constituted testimonial hearsay that should have been excluded. Gonzalez argues, "The annotations on the body diagrams prepared by Dr. Chinwah marking entrance and exit bullet wounds constituted hearsay. . . . In the same way, annotations identifying entrance and exit wounds on the autopsy photographs of Reyes's body constituted out-of-court statements admitted for their truth and therefore hearsay when the photographs were admitted into evidence." Defendants assert prejudice from the admission of the evidence because "[t]he prosecution's evidence may have established the shooting, but not the fatal nature of the shooting in the absence of the incorrectly admitted evidence."
A. Defendants Forfeited Their Challenge
In the trial court, defendants did not argue Dr. Chinwah was not unavailable. They did not object to Dr. Nguyen's testimony regarding the number of gunshot wounds or his reliance on the autopsy diagram, photographs, or report. They did not object to admission of the diagram and photographs into evidence. Defendants challenges are thus forfeited. (People v. Amezcua and Flores (2019) 6 Cal.5th 886, 911 (Amezcua).)
B. Assuming the Evidence Was Erroneously Admitted, the Error Was Harmless Beyond a Reasonable Doubt
Even if the challenge were not forfeited, admission of the coroner's testimony, even if erroneous, was harmless beyond a reasonable doubt. (Amezcua, supra, 6 Cal.5th at p. 911.) The fact that Reyes died of gunshot wounds was demonstrated by other evidence and was undisputed. S.B. testified that a nurse tried to revive Reyes, "but he was already gone." Deputy Sheriff Bragg testified about a photograph taken at the scene when a "coroner investigator arrived on the scene and actually took the sheet off of Mr. Reyes which had been placed on [him] by fire department personnel." The photograph depicted gunshot wounds to the victim. Additionally, Gonzalez told the agent, "[W]e smoked him." Further, Gonzalez said he hopped out of the backseat, shot six times, and the victim died. Thus, Gonzalez's own statements confirm Reyes's death from Gonzalez's gunshots. Contrary to defendants' argument, the evidence that Reyes died as a result of the shooting was overwhelming. Thus, even if arguendo erroneously admitted, the coroner's testimony was harmless beyond a reasonable doubt.
IV. This Court Need Not Consider Defendants' Remaining Arguments
At the end of his appellate briefing, Gonzalez states that he joins in any argument by Perez that inures to his benefit. Joinder is broadly permitted (see Cal. Rules of Court, rule 8.200(a)(5)), "but each appellant has the burden of demonstrating error and prejudice." (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) The only argument in Perez's brief missing from Gonzalez's brief is the challenge to the sufficiency of the evidence based on aiding and abetting liability. Gonzalez was not an aider and abettor and this argument does not apply to him. Even if it did, Gonzalez's failure to summarize the evidence with respect to his intent to kill S.B. would result in forfeiture. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363.)
Both Gonzalez and Perez raise several claims of error with respect to their sentence. Because resentencing is required, we do not consider their challenges to the current sentence.
DISPOSITION
Defendant Gonzalez's judgment of conviction for attempted murder is reversed for instructional error and the case is remanded for resentencing and possible retrial on the attempted murder count as long as such retrial is not based on a kill zone theory.
Defendant Perez's judgment of attempted murder is reversed for lack of sufficient evidence and instructional error and the case is remanded as to him for resentencing only.
In all other respects, the judgment is affirmed.
The trial court shall forward amended abstracts of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.