Opinion
B320947
02-09-2023
In re EDGAR HURTADO on Habeas Corpus
Law Offices of Patrick Morgan Ford and Patrick Morgan Ford for Petitioner. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Robert L. Davis, David A. Wildman, and Idan Ivri, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS on petition for writ of habeas corpus. David W. Stuart, Judge. Los Angeles County Super. Ct. No. PA055043 Petition granted in part and denied in part.
Law Offices of Patrick Morgan Ford and Patrick Morgan Ford for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Robert L. Davis, David A. Wildman, and Idan Ivri, Deputy Attorneys General, for Respondent.
HOFFSTADT J.
Edgar Hurtado (defendant) filed this petition for habeas corpus seeking to overturn his 2007 convictions on three counts of attempted premeditated murder (Pen. Code, §§ 187, 664) on the ground that the convictions potentially rested on a "kill zone" theory that our Supreme Court invalidated in its 2019 decision in People v. Canizales (2019) 7 Cal.5th 591 (Canizales). We conclude that the trial court's "kill zone" jury instruction is invalid under Canizales, but that the error was harmless beyond a reasonable doubt as to two of the counts in light of the overwhelming and undisputed evidence that defendant-wholly independent of the "kill zone" theory-harbored an intent to kill the two victims underlying those counts. Because the error was not harmless beyond a reasonable doubt as to the third attempted murder count, we vacate that conviction and remand for the People to decide whether to retry the third count.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In April 2006, defendant had been a member of the Hard Kore tagging crew for three years. His crew had a longstanding rivalry with the A.F.L. (short for All Fearless) tagging crew.
Around 9 p.m. on the evening of April 12, 2006, defendant was in a light-colored SUV with two friends-namely, Juan Carlos Ortega (Juan) and Felipe Ortega (Felipe). Juan was the driver; Felipe was in the back seat; and defendant was riding as the front seat passenger. Juan drove the SUV "slow[ly]" past the Pacoima house where Rene Galaviz lived. Galaviz was out in the front yard with Antonio Maldonado and possibly Samuel Morales. (All three men initially reported that Morales was out in front with them, but all three later recanted that detail.)
Because two of the occupants of the car share a last name, we refer to them by their first names.
After making a U-turn or three-point turn at the end of the street, Juan pulled the SUV up alongside Galaviz's house. Someone in the vehicle asked the men in the front yard, "Where are you from?" After Maldonado responded, "From nowhere," defendant or Juan shouted, "Fuck A.F.L.," and then identified themselves by also shouting, "This is H.K." or "H.K."-short for Hard Kore. Then defendant stuck a .40-caliber Glock semiautomatic pistol out the window and opened fire at the three men, who were approximately 36 feet away. Upon seeing movement in the SUV's cab (even before seeing the weapon), the men-who were standing close to one another-dove for the ground. Defendant fired off three shots: One bullet struck the tree in front of which Maldonado had been standing; one hit the front door of the Galaviz house where Galaviz had been standing; and one hit and shattered the glass window near the front door. As noted above, the evidence is conflicting as to whether Morales was inside the house or in the front yard at the time of the shooting. The SUV then drove off.
Although all three victims recounted these facts immediately after the shootings, by the time of trial they professed a selective lack of memory as to who gunned them down. There was evidence that, prior to trial, they had been threatened with harm and feared for their lives.
Minutes later, police responding to a 911 call pulled over the SUV. Secreted under the front passenger's seat was the Glock used to fire the shots at Maldonado, Morales and Galaviz. The gun was cocked and still had one bullet in the chamber and 11 bullets in its magazine. Two spent shell casings were recovered from the passenger compartment of the SUV and one was found in the street in front of Galaviz's house.
Maldonado and Galaviz identified defendant as the shooter at a field showup. Morales could not identify the shooter, but identified the car driven by Juan as the one that had driven past the Galaviz residence.
After giving a written statement in which he admitted to the facts of what happened but said nothing about being the shooter, defendant spoke with police and admitted that he opened fire after he perceived that the men in the front yard "maddogged" him.
II. Procedural Background
A. Charges, convictions, sentence and original appeal
As pertinent to this habeas petition, the People charged defendant with three counts of attempted premeditated murder (§§ 187, 664), one for each intended victim. With respect to those counts, the People also alleged that (1) defendant personally used and personally discharged a firearm (§ 12022.53, subds. (b) &(c)), (2) a principal used a firearm (§ 12022, subd. (a)(1)), and (3) defendant was on bail at the time of the offense (§ 12022.1).
The People also charged defendant with (1) three counts of assault with a firearm (§ 245, subd. (a)(2)), one for each victim; (2) shooting at an inhabited dwelling (§ 246); (3) three counts of carrying a loaded and unregistered firearm (§ 12031, subd. (a)(1)); and (4) two counts of having a concealed firearm in a vehicle (§ 12025, subd. (a)(1)). The People alleged various enhancements pertinent to these crimes as well.
The matter proceeded to a jury trial. The jury was instructed on the crime of attempted murder, including the requirement that the People prove defendant's "intent to kill" as to each victim. In explaining how to assess whether defendant acted with an "intent to kill" as to the victims Galaviz and Morales, the court also gave the following instruction:
"A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or 'kill zone.' In order to convict defendant of the attempted murder of [Galaviz] and [Morales], the People must prove that the defendant not only intended to kill [Maldonado], but also either [(1)] intended to kill [Galaviz] and [Morales], or [(2)] intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill [Galaviz] and [Morales] by harming everyone in the kill zone, then you must find defendant not guilty of the attempted murder of [Galaviz] and [Morales]."
In closing argument, the prosecutor argued that defendant specifically intended to kill Maldonado because defendant "went after" him "for maddogging him[ and] for answering" his gang challenge question, "Where are you from?" The prosecutor argued that defendant had the intent to kill Galaviz and Morales under the kill zone theory, stating, "[Defendant] shoots, and he doesn't care who he hits that's in that particular zone of harm that he's shooting at; and when that happens, whoever is standing out there is also the victim of the attempt[ed] murder against [Maldonado]."
In his closing argument, defendant did not dispute-or, indeed, even address-the intent to kill element. Instead, defendant argued that he was not the shooter.
The jury found defendant guilty of all three attempted murder counts, and found true all enhancements.
The trial court sentenced defendant to a life sentence plus 20 years (for the personal discharge of a firearm) for each attempted premeditated murder, and ran the sentences consecutively.
The court also imposed a consecutive nine-year prison term for the remaining counts.
We affirmed defendant's convictions and sentence in an unpublished opinion issued on August 26, 2008. (People v. Hurtado (Aug. 26, 2008, B200275).) In our opinion, we rejected defendant's argument that there was insufficient evidence of his "intent to kill," citing that he shot "three or four rounds from relatively close range," that "[o]ne of the shots hit the front door from which the victims were exiting and another hit the tree behind Maldonado," and that defendant had a "motive to kill . . . because he believed [the three men] were from a rival tagging crew and had been 'mad-dogging' him." We also rejected defendant's challenge to the "kill zone" jury instruction, including on the ground that any error was harmless because "[t]he evidence of [defendant's] intent to kill all of the victims here was strong under the 'kill zone' theory or otherwise," as defendant had "[s]h[ot] at the three victims from close, but not point-blank range, in a manner that could have inflicted a mortal wound on any of them."
B. Habeas petitions 1. Trial court
On July 6, 2021, defendant filed a petition for a writ of habeas corpus with the trial court, arguing that all three attempted murder convictions should be overturned because they rested on an articulation of the "kill zone" theory invalidated in Canizales, supra, 7 Cal.5th 591. After briefing and a hearing, the trial court denied the petition. The court concluded that it was appropriate to instruct the jury on the "kill zone" theory, even under Canizales's more restrictive view of that theory. The court reached this conclusion after examining the various factors Canizales articulated as relevant to whether a "kill zone" theory was justified-namely, that defendant had fired three shots from a firearm at the three victims who were "together in front of the house," which the court viewed as "not an open area." The shots were shot from the relatively short range of 36 feet, and although "they all missed[,] . . . they were all close."
2. This court
On June 14, 2022, defendant filed a petition for a writ of habeas corpus with this court raising the same essential claim. After requesting a preliminary opposition and reply, we issued an order to show cause, requested a formal return and traverse, and set the matter for argument.
DISCUSSION
In his habeas petition before this court, defendant argues that he is entitled to have all three attempted murder convictions vacated in light of Canizales, supra, 7 Cal.5th 591. As a threshold matter, we concur with the parties that Canizales's narrower definition of the "kill zone" theory applies to convictions-like defendant's-that were final when Canizales was decided. (In re Sambrano (2022) 79 Cal.App.5th 724, 731732 (Sambrano); In re Lisea (2022) 73 Cal.App.5th 1041, 1053; In re Rayford (2020) 50 Cal.App.5th 754, 770-778 (Rayford).) Thus, our resolution of defendant's petition turns on two questions: (1) Was the trial court's jury instruction on the "kill zone" theory defective, and if so, (2) was that defect harmless beyond a reasonable doubt?
The People argue that defendant's petition is untimely because he waited nearly two years after Canizales was handed down in June 2019 to seek relief. We reject this argument. It was not until June 2020 that the Court of Appeal first held in Rayford that Canizales applied to final convictions, such that defendant's petition was filed only a year after his right to bring the claim had been established. Even if we look at the time between Canizales and defendant's petition two years later, courts have found such petitions to be timely, particularly where, as here, the defendant was incarcerated and without counsel when Canizales was handed down. (E.g., Sambrano, supra, 79 Cal.App.5th at pp. 729-730 [two-year delay after Canizales; petition timely].)
I. Was the "Kill Zone" Instruction Defective?
The crime of attempted murder requires a specific intent to kill. (Canizales, supra, 7 Cal.5th at p. 602, citing People v. Lee (2003) 31 Cal.4th 613, 623.) Consequently, a defendant who intends to kill one person, but shoots a second person instead, is not guilty of attempted murder of the second person. (People v. Bland (2002) 28 Cal.4th 313, 331 (Bland) ["transferred intent does not apply to attempted murder"].) However, because "a primary intent to kill a specific target does not rule out a concurrent intent to kill others" (Bland, at p. 331, fn. 6), a defendant who "specifically intend[s] to kill every single person in the area in which [his] primary target [is] located"-in the so-called "kill zone"-can be liable for the attempted murder of anyone in that area. (People v. McCloud (2012) 211 Cal.App.4th 788, 803 (McCloud); Canizales, at p. 606 [defendant liable under a "kill zone" theory if he "intentionally created a zone of fatal harm"].)
In Canizales, supra, 7 Cal.5th 591, our Supreme Court clarified that a defendant is guilty of attempted murder of persons within a "kill zone" only if (1) "the circumstances of the defendant's attack on a primary target . . . 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." (Id. at p. 607.) It is not enough, the court clarified, to show that the defendant "acted with only conscious disregard of the risk of serious injury or death for those around a primary target." (Ibid.) Thus, it is not enough that the defendant was indifferent to whether others were killed. (McCloud, supra, 211 Cal.App.4th at p. 798.) Canizales went on to enumerate "the circumstances" bearing on the defendant's "intent to create a zone of fatal harm and the scope of any such zone"-namely, (1) "the type of weapon [the defendant] used," (2) "the number of shots fired (whe[n] a firearm is used)," (3) "the proximity of the alleged victims to the primary target," (4) "the distance between the defendant and the alleged victims," (5) whether the attack location was open or instead had a "limited means of escape," and (6) whether the defendant succeeded in hitting his primary target(s). (Canizales, at pp. 607, 610-611.) A "kill zone" instruction is appropriate, the court explained, "only in those cases where the [trial] court concludes there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that the defendant intended to kill everyone in the zone of fatal harm." (Id. at p. 608; see generally People v. Gonzalez (2018) 5 Cal.5th 186, 197-198 [instructions are warranted only if supported by "substantial evidence"].)
Subsequent Court of Appeal decisions applying Canizales have fleshed out Canizales's limits on when a "kill zone" instruction is warranted. On the one hand, a "kill zone" instruction is appropriate-because the creation of a "kill zone" is the only reasonable inference to be drawn from the pertinent circumstances-when a defendant, in seeking to shoot his primary target, fires 21 rounds into a small space (People v. Dominguez (2021) 66 Cal.App.5th 163, 187), or fires multiple rounds at two people walking side by side (People v. Windfield (2021) 59 Cal.App.5th 496, 517-518). On the other hand, a "kill zone" instruction is not appropriate-because the creation of a "kill zone" is not the only reasonable inference that may be drawn from the pertinent circumstances-when a defendant (1) lacks a primary target, such as when he indiscriminately fires a weapon into a restaurant filled with patrons (People v. Thompkins (2020) 50 Cal.App.5th 365, 394-395 (Thompkins) or into a house containing multiple people as well as into the air (Rayford, supra, 50 Cal.App.5th at p. 779), or (2) has a primary target, shoots at that target, but subsequent shots occur after the primary target has been hit and do not hit any of the areas where other persons are located (People v. Booker (2020) 58 Cal.App.5th 482, 500), the defendant is retreating (People v. Cardenas (2020) 53 Cal.App.5th 102, 114-115), or after a break following a successful shot at the primary target (People v. Mariscal (2020) 47 Cal.App.5th 129, 139).
Whether the "kill zone" instruction in this case was defective turns on two questions: (1) was a "kill zone" instruction warranted under Canizales, supra, 7 Cal.5th 591, and if so, (2) was the instruction given consistent with Canizales?
We need not address the first question because the second is dispositive. The "kill zone" instruction in this case explained that defendant could be found to have acted with the intent to kill Galaviz and Morales if defendant "intended to kill anyone within the kill zone." This does not satisfy Canizales's requirement that the "kill zone" may be found only if the defendant intended to kill "everyone present" in the zone. (Canizales, supra, 7 Cal.5th at p. 607 (italics added).) To be sure, the instruction here also said that the "kill zone" inference of intent to kill could not be drawn "if" the jurors "ha[d] a reasonable doubt whether the defendant . . . intended to kill [Galaviz] or [Morales] . . . by harming everyone in the kill zone" and some pre-Canizales opinions had held that this additional proviso cured the instruction's ambiguous reference to killing "anyone." (E.g., People v. Campos (2007) 156 Cal.App.4th 1228, 1243.) But any clarity conferred by this additional reference to killing "everyone" was muddied again by the prosecutor's now-incorrect argument that the "kill zone" theory applies if defendant "doesn't care who he hits" in the kill zone. (Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 622 [closing argument may be "relevant to evaluating the likelihood of [a jury's] misunderstanding" of an "ambiguity" in the jury instructions].)
For this reason, the "kill zone" instruction given in this case was defective.
II. Was the Defective Instruction Harmless?
By authorizing a jury to infer intent to kill all nontargets in a "kill zone" from a defendant's conduct of creating and then firing into that zone, a "kill zone" instruction functions as a "short cut" way for a jury to conclude that a defendant acted with the intent to kill those nontargets. Because defects with a "kill zone" instruction (including whether to give one in the first place) are not factual in nature, the giving of a defective "kill zone" instruction is a species of "legal error" akin to (but not identical to) instructing a jury on a legally invalid theory of criminal culpability. (People v. Aledamat (2019) 8 Cal.5th 1, 7-8 (Aledamat).) Where a trial court makes a "legal error," we "must reverse [a] conviction [infected with legal error] unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, [we] determine[] the error was harmless beyond a reasonable doubt." (Id. at pp. 8, 13.) "In other words, we must determine '"whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error."'" (Cardenas, supra, 53 Cal.App.5th at p. 117, quoting Canizales, supra, 7 Cal.5th at p. 615.) Because the "kill zone" instruction is a short cut way of assessing intent to kill those nontargets inside the "kill zone," and because the instruction in this case also authorized the jury to make a finding of "intent to kill" without using the "kill zone" shortcut, we may conclude that the instructional error in this case was harmless beyond a reasonable doubt if we conclude that the evidence of defendant's intent-without relying at all on the "kill zone" shortcut-was overwhelming and undisputed. (Cf. Cardenas, at p. 117.)
Our focus is necessarily on the intent to kill element that Canizales implicates. Thus, the evidentiary conflicts in the record regarding whether defendant was the perpetrator are irrelevant; the jury found that he was, and the Canizales error we have found requires us only to assess whether the evidence of defendant's intent to kill was overwhelming and undisputed.
We acknowledge that Thompkins held that harmlessness must be assessed only in terms of what defendant's prior jury necessarily and actually found (Thompkins, supra, 50 Cal.App.5th at p. 399), but Aledamat explicitly rejected such a narrow focus (Aledamat, supra, 8 Cal.5th at pp. 12-13). We join other courts in declining to follow Thompkins's formulation of harmlessness. (Accord, People v. Glukhoy (2022) 77 Cal.App.5th 576, 598-599.)
A. As to Maldonado
The defect with the "kill zone" instruction was harmless beyond a reasonable doubt as to Maldonado because the jury was instructed that he was the primary target of any "kill zone," and that the jury had to find that defendant intended to kill the primary target. In other words, the attempted murder count naming Maldonado as the victim necessarily rested on the jury's finding that defendant specifically intended to kill Maldonado; thus, the defect in the "kill zone" instruction was irrelevant as to him. Defendant's sole response is that Maldonado was not really a "primary target" because defendant did not have any reason to distinguish him from the other people he perceived as A.F.L. members. We are unpersuaded, as courts have allowed "kill zone" instructions when the "primary target" has done no more than speak or act in some manner that distinguishes them from the others in a potential kill zone. (Accord, Cardenas, supra, 53 Cal.App.5th at p. 113 [primary target was "leading the group" and "was the most vocal person from his group during th[e] encounter"]; cf. People v. Foster (2021) 61 Cal.App.5th 430, 443 [no primary target where "no preexisting relationship or prior incident" between the defendant and proffered "primary target"].)
B. As to Galaviz
The defect with the kill zone instruction was harmless beyond a reasonable doubt as to Galaviz because the evidence that defendant intended to kill Galaviz-even ignoring the defective "kill zone" shortcut-was both overwhelming and undisputed. Defendant had the motive to kill what he perceived as the three A.F.L. tagging crew members because they were rivals of his own tagging crew. (E.g., People v. Woods (1991) 226 Cal.App.3d 1037, 1054 ["Evidence of gang membership was critical to prove. . . intent to kill . . ."]; see generally People v. Houston (2012) 54 Cal.4th 1186, 1218 ["motive is often probative of an intent to kill"]; cf. Lisea, supra, 73 Cal.App.5th at pp. 10561057 [defective instruction not harmless where victim was an "innocent bystander" whom the defendant had no motive to kill].) What is more, defendant fired a shot at short range (just 36 feet away) at the front door where Galaviz was standing at the time defendant opened fire. It is well settled that "[t]he act of shooting a firearm toward a victim at close range in a manner that could have inflicted a mortal wound had the shot been on target is sufficient to support an inference of an intent to kill." (Houston, at p. 1218; People v. Smith (2005) 37 Cal.4th 733, 742; People v. Perez (2010) 50 Cal.4th 222, 230; People v. Medina (2019) 33 Cal.App.5th 146, 153.) Indeed, defendant never disputed that he intended to kill Galaviz, and instead opted to argue that he was not the shooter. Because defendant's motive and his conduct in shooting right at Galaviz from close range overwhelmingly establishes defendant's intent to kill Galaviz separate and apart from the defective "kill zone" instruction, defendant's conviction for attempted murder with Galaviz as the victim was not infected by that instruction.
C. As to Morales
The defect with the kill zone instruction was not harmless beyond a reasonable doubt as to Morales. Although defendant had the motive to kill all three men he perceived to be A.F.L. members, the evidence is conflicting as to whether Morales was in the front yard at the time defendant opened fire; thus, there is not overwhelming evidence that defendant shot at Morales at close range. Absent such overwhelming evidence, we cannot conclude beyond a reasonable doubt that the defective "kill zone" short cut instruction did not affect the finding of intent to kill as to Morales. Accordingly, we must vacate the attempted murder conviction naming Morales as the victim.
DISPOSITION
The petition is denied as to the attempted premeditated murder convictions in counts 1 and 2 (that is, those naming Maldonado and Galaviz as the victims). The petition is granted as to the attempted premeditated murder conviction in count 3 (that is, the count naming Morales as the victim), and that count is vacated-and the matter remanded for the People to decide whether to retry that count.
We concur: LUI, P. J. ASHMANN-GERST, J.