Opinion
G060395
02-22-2022
THE PEOPLE, Plaintiff and Respondent, v. ISAAC DAVID JACOB BROWN, Defendant and Appellant.
Stephen B. Bedrick, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano and David H. Rose, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Santa Clara County No. C1764817, David A. Cena, Judge. Affirmed in part, reversed in part, and remanded.
Stephen B. Bedrick, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano and David H. Rose, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, P. J. 1
Isaac David Jacob Brown appeals from a judgment after a jury convicted him of two counts of murder, attempted murder, shooting at an occupied motor vehicle, and unlawful possession of ammunition, and found true firearm enhancements. Brown argues the following: the trial court erred by admitting his custodial statements in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); the court erred by admitting evidence or, alternatively he received ineffective assistance of counsel; the court erred in instructing the jury; the court erred in sentencing him; and there was cumulative error.
We agree, as does the Attorney General, with Brown's sentencing contentions. His other contentions have no merit. We affirm his convictions, reverse the indeterminate sentence on the attempted murder count and the one-year prior prison term, and remand.
FACTS
While driving a vehicle one afternoon in downtown San Jose, Brown fired multiple shots from his vehicle at another vehicle, killing two rival gang members and wounding a third. Around the time of the shooting, Brown spoke with his brother, Jarek Brown (Jarek), and Raymond Estrada, the owner of the vehicle Brown drove, in a three-way call that was recorded because Jarek was incarcerated. After a 10-month investigation that included cell phone analysis and review of recorded prison telephone calls, officers arrested Brown.
A third amended information charged Brown with the following: murder (Pen. Code, § 187, all further statutory references are to the Penal Code, unless otherwise indicated) (counts 1 & 2); attempted murder (§§ 664, 187) (count 3); shooting at an occupied motor vehicle (§ 246) (count 4); and unlawful possession of ammunition (§§ 29800, subd. (a)(1), 12021, subd. (a)(1)) (count 6). As to counts 1 and 2, the information alleged multiple murder (§ 190.2, subd. (a)(3)), and shooting from a vehicle (§ 190.2, subd. (a)(21)), special circumstances and a personal use of a firearm 2 (§ 12022.53, subd. (d)), enhancement. The information also alleged Brown suffered a prior juvenile strike adjudication (§§ 667, subds. (b)-(i)), 1170.12; Veh. Code, § 10851, subd. (a)), and a prior prison term (§ 667.5, subd. (b)). Finally, the information charged Estrada and Jarek with accessory after the fact (§ 32), and Jarek with attempting to dissuade a witness (§ 136.1, subd. (b)(1)). I. Prosecution Evidence
Luis Cervantes rode his bicycle to meet his friends, Edwin Verduo and Omar Rangel one afternoon. Verduo's Honda Odyssey (Minivan) was parked at a tire shop. Cervantes put his bicycle in the Minivan where the middle row seats had been removed. The three men talked and smoked. They saw a Chevrolet sport utility vehicle (SUV) drive by. Cervantes testified the SUV drove by three times, although he had previously said it drove by twice. On one occasion, the SUV was stopped at a light.
Cervantes testified he could not remember a number of things, including whether Rangel walked toward the SUV holding a machete or whether they said anything to the SUV's driver. Cervantes also could not remember whether Verduo or Rangel were gang members. Cervantes was not a gang member but he had friends who were Sureños and knew its color was blue. When shown a photograph, Cervantes agreed Rangel was wearing a blue belt.
After the SUV drove away on William Street, the three men got into the Minivan and drove in the same direction as the SUV, toward 11th Street. Verduo drove, Rangel was the passenger, and Cervantes sat on the floor or the backseat. Cervantes saw a machete in the Minivan. Cervantes saw Rangel holding a glass jar. No one in the Minivan had a gun.
When Verduo turned left from William onto 11th, they lost sight of the SUV. 11th is a one-way street, with two lanes and a bicycle lane. As Verduo drove in the right lane on 11th, the SUV "went up to [them] fast" in the bicycle lane to their right. Cervantes described the male driver as having a goatee and mustache, and wearing a 3 black hat and Ray Ban sunglasses. Cervantes saw he was holding a gun in his right hand. The man quickly fired numerous shots. Cervantes ducked.
The Minivan slowly rolled to a stop in the middle of the street. Cervantes saw Rangel looked unconscious and Verduo was conscious but bleeding profusely. Cervantes put the Minivan in park, helped Verduo out of the Minivan, and held him while he passed away.
Thomas L. was sitting in a bagel store when he saw a Minivan and an SUV stopped at a red light on 11th. The Minivan was in the first lane, and the SUV was in the second lane, to the right of the Minivan. When the light changed, Thomas heard eight gunshots from what sounded like the same gun. At that time, the SUV was slightly ahead of the Minivan. The SUV drove away, and the Minivan drifted to the side of the road. Michael S. was in the bagel shop when he saw two vehicles speeding through the intersection. Michael heard five shots coming from the vehicle in the right lane. Two workmen in the area also heard multiple shots. One of the men ran to the Minivan to give assistance; he did not see any weapons.
Officer Alfonso Rodriguez arrived at the scene and interviewed Cervantes. Cervantes told Rodriguez that both Rangel and Verduo were Sureños associated with Varrio William Street.
Crime scene investigator Barbara Fujii testified concerning the cartridge casings (RP Luger & Blazer Luger), slugs she recovered from the scene, and the bullet holes in the Minivan. She found the following bullet holes in the Minivan: two in the windshield; two in the front passenger door, one in the window of the driver's side sliding door; and possibly one in the driver's seat. She found a jar in the center console containing apparent marijuana. On the floor near the driver's seat, she found a bloodstained machete and a blue beanie. She found a bullet hole in the wall in a nearby laundromat and a bullet hole in a vehicle parked near the laundromat. Sometime later, she examined the SUV and found no additional defects. 4
Firearms examiner Brian Karp testified the two nine-millimeter Luger cartridge casings (group 1) were fired from the same gun. He added the three copper jackets from fired bullets and one copper jacketed slug (group 2) were all fired from the same gun. He could not say whether group 1 and group 2 were fired from the same gun because he did not have the gun. He compiled a list of guns that could have been used in the shooting, and they were all semiautomatic firearms.
Dr. Joseph O'Hara performed the autopsies on Verduo and Rangel. The fatal bullets entered from the right side of Verduo's back and the left side of the back of Rangel's head. Verduo had marijuana in his system. Rangel had methamphetamine in his system. Neither had any tattoos.
Courtney Triggs, a police forensic analyst, examined four videos from locations near the shooting. Triggs testified concerning the process she used to calibrate the time on the videos to ensure it was accurate. As the videos played for the jury, Triggs described what they depicted. At about 1:57 p.m., the SUV traveled on William between 10th Street and 11th. Around 2:08 p.m., the SUV turned left from 10th onto William and continued straight not turning on 11th. About a minute later, the Minivan stopped at the corner of William and 11th. About one minute later, the Minivan and the SUV were stopped at the intersection of 11th and San Carlos Street. The SUV was to the right of the Minivan.
Martinez interviewed Cervantes. Cervantes said Rangel said something disrespectful to the SUV driver but he did not know exactly what. He said Rangel associated with the Sureños in East Side San Jose and Verduo associated with the Sureños on William. He added the SUV driver was a Norteño, a "chapete." Cervantes denied he was associated with a gang.
Martinez and Meeker interviewed Cervantes a second time. Cervantes stated that when the SUV drove by them, the driver was "mean mugging" them. Mean mugging meant a person made a threatening or intimidating face to another person. He 5 said Rangel did not yell anything at the SUV driver or he would have heard. Cervantes said the shooting was motivated by an event two days earlier that Brown was not involved in.
Detective Raul Martinez testified that in July 2016 he received a tip from "Crime Stoppers" and investigated Estrada and Violet Mejia; Mejia was the registered owner of the SUV. Martinez believed the three-way call between Brown, Jarek, and Estrada occurred right after the shooting based on Brown's language.
Detective Brian Meeker testified they recovered cell phones at the site of the shooting and search warrants revealed telephone numbers connected with Brown and Estrada. Meeker learned Jarek was incarcerated. Meeker obtained numerous recorded telephone calls between Brown and Jarek, about a dozen of which were played for the jury. Read together, Brown told Jarek the "Dodgers" "tried to run up" on him and" [he] hit 'em with the click-clack" when he was in "the Chiefs" "whip."
We have not corrected typographical and grammatical errors in the original quoted material.
Meeker offered his opinion as to the meaning of the following slang that Brown used in the telephone calls as follows: "'run up'" meant to confront; "'Southsiders'" was a derogatory term for Sureños; "Dodgers," a baseball team from Southern California that wears blue, was a derogatory term for Sureños; "'click-clack'" meant a gun; and "'whip'" meant a car. We will provide the calls below when addressing Brown's contention the court erred by admitting them. Suffice it to say, Brown made statements that rival gang members confronted him and he shot them and there may be evidence implicating him in the shootings. Jarek made statements suggesting Brown destroy evidence and intimidate Estrada to not speak with the police.
Antone Larosa, a sheriff intelligence analyst, reviewed phone records that showed Jarek called Estrada on the day of the shooting at 2:06 p.m. About a minute into that call, Estrada called Brown. Larosa believed that call was a "three-way" among the 6 men. Larosa explained Brown's and Estrada's cell phones were in the area covered by the cell tower that included the area where the shootings occurred.
Officers arrested Estrada and Mejia on September 1, 2016. Officers seized the SUV the same day.
Sergeant Sean Prichard testified officers searched Brown's home on 11th in February 2017. Officers searched Brown's bedroom, which he shared with his girlfriend Anna P. (Girlfriend), and found a bracelet with the words "'North Side, '" and a plastic bag containing two nine-millimeter Luger bullets. Photographs taken that day showed Brown with a tattoo on his chest that read, "'Varrio Trentay Tres'".
Detective Raul Martinez testified officers arrested 26-year-old Brown on May 11, 2017. Martinez and Meeker interviewed Brown at the police station after advising him of his rights pursuant to Miranda, supra, 384 U.S. 436. He was under arrest and not free to leave. A videotape of the interview was played for the jury. Brown stated he got the Varrio Trentay Tres tattoo on his chest when he was about 15 years old but he had" [n]othing to do with that now[]" because he worked. Meeker played the recording of the three-way call and said he had numerous other recordings that revealed what happened. Meeker asked Brown what happened. Meeker repeated he had multiple recordings, and Brown asked, "So what am I looking at?" Brown said he had the SUV, the shootings, and the recordings and asked Brown what happened. Brown said," [I]t was self-defense though." Brown stated he was stopped at a red light when three men started yelling at him. He said one of men ran to the Minivan, grabbed something, and ran towards him so he drove through the red light. He added that was when the telephone call happened. Brown said the Minivan drove next to him and the passenger, who had something in his hand, rolled down his window. Brown panicked because he knew it was not "a letter." After Meeker said he appreciated Brown's honesty, Brown said, "I'm gonna get a long time for this aren't I?" 7
Meeker asked Brown to provide additional details. Brown stated he was stopped at the red light on William when he saw three men who were yelling at him. He thought they were Sureños because of the area. He said one of the men went inside the Minivan, moved a bicycle, grabbed a machete, pipe, or shotgun, and walked towards him. He panicked and drove through the red light. He only drove by the men once. Brown said that after he drove away, Estrada called him. While he was on the telephone, Brown saw the Minivan approaching quickly from the rear on the driver's side and the passenger was hanging out of the window and thought he had a weapon. Brown stated he fired a few shots backward "figuring it would hit the tire or something." He said the closest the Minivan got to the SUV was the back tire. He did not believe he shot anyone in the back because the Minivan was behind him. Brown said he took the SUV back to Mejia and told her to get rid of it because something happened in it. Brown said he wanted to turn himself in but did not because of his background.
Michael Whittington, a police officer and district attorney investigator, testified as an expert on criminal street gangs. After detailing his background, training, and experience, he testified concerning the culture and habits of turf-oriented criminal street gangs, including respect, committing violence, intimidation, i.e., "mean mugging," tattoos, and the importance of weapons. He stated Norteños, Northerners, wore red, used the number 14, and were foot soldiers for the Nuestra Familia prison gang. He added Varrio Trentay Tres was a Norteño criminal street gang and described its claimed territory. He said the rival Sureños, Southerners, wore blue, used the number 13, were foot soldiers for the Mexican Mafia prison gang, and insulted Norteños by referring to them as chapete. He opined Norteños outnumber Sureños five to one in San Jose and the shooting occurred in Sureño claimed territory. Based on a hypothetical rooted in the case's facts, Whittington opined the shooting was gang motivated. He agreed a "click-clack" referred to a gun and '"hitting those Dodgers'" attacking Sureños. 8
II. Defense
Girlfriend testified she and Brown had been together about five years and had a daughter. She stated the "North Side" bracelet was hers. She said that at the time of the shooting Brown did not associate with gang members. She was aware of his tattoo and knew he previously associated with gang members, but he changed his life for the better after they met. She admitted Brown talked to her about the shooting a few hours after it happened. He was nervous, scared, and crying, and he wanted to go to church, which was uncommon.
Brown, 26 years old at the time of trial, testified he started hanging around Varrio Trentay Tres gang members when he was 12 years old and considered them brothers. He had the gang's tattoo on his chest. Brown stopped associating with the gang when he was about 19 years old because he was attacked and he had a son. He had been stabbed, shot, and assaulted by Sureños. He said Sureños wear blue, including belts, and insult Norteños by calling them chapete.
Brown explained he slept at Mejia's house because he argued with Girlfriend the previous night. The next morning, he borrowed Mejia's SUV to drive to his mother's house to shower. On the way back, he stopped at a red light on William and 10th; he knew this was William Street Trece Sureños claimed territory.
Brown saw three men standing in a parking lot near the Minivan with its doors open and a bicycle inside. One of the men was wearing a blue shirt and another was wearing a blue belt. The man wearing the blue shirt put his hands up, gesturing "what's up?" That man went into the Minivan, grabbed a machete, gestured to Brown "what's up?", and walked towards him.
Brown opened the center console, grabbed his gun, loaded it, and held it on his lap. About the same time, Jarek called Brown, who told his brother, "' I can't talk to you right now, I just got ran up on.'" Brown was scared, and he ran the red light. Brown described the route he drove, and admitted it was different from what he told Martinez 9 and Meeker. When he spoke with them he thought he passed by the tire shop just once but after watching the video he drove by it twice. While he was driving, he spoke with Jarek and Estrada on the three-way call.
Brown stated he was stopped at a red light on 11th and San Carlos when in the mirror he saw the Minivan approaching fast. The passenger was leaning out of the window holding something black in his hand. Brown was scared he was going to get shot so he dropped the cell phone, grabbed the gun from the center console, and "hit the gas." When Brown saw the Minivan's engine compartment, he started shooting. With his left hand on the steering wheel, Brown "just shot blindly" two or three times across his body with his right hand. Brown drove away and threw the gun in the gutter. When he got to Mejia's house, he removed about five spent shell casings from the SUV and told Mejia to get rid of it. He and Estrada drove to Gilroy to avoid retaliation and to think. Brown did not turn himself in because he did not think the police would believe him because of his background. Brown fired the gun because he was scared. He did not intend to kill anyone and was not acting as a Norteño. Brown's trial counsel questioned him about the prison telephone calls. Brown stated the three-way call occurred after he saw the three men but before the shooting. He said "click-clack" meant cycling a bullet into the chamber and not firing the gun.
On cross-examination, Brown admitted he had suffered numerous convictions, including assault by means of force likely to cause great bodily injury. Brown admitted he carried a gun with him all the time from 2013 to 2016. He agreed the gang-related violence he suffered made him angry at Sureños and made him want to retaliate against them. He believed the three men at the tire shop were Sureños based on the area, what they were wearing, and their body language. He did not hear them yell chapete. Brown insisted the Minivan approached him on the left side, the driver's side, and the vehicles were never parallel to each other. When shown video footage, Brown said the vehicles were parallel "from this angle." When asked about a statement in one of 10 the telephone calls with Jarek, Brown admitted it was possible he emptied the gun's cartridge.
On redirect examination, Brown testified he was not angry at the three men he saw at the tire shop. He did not shoot at the men the first time he saw them.
Joshua Mason testified for Brown as a gang expert. Mason stated he was a Norteño for about 20 years and served 10 years in prison for attempted murder. He subsequently earned his Associate of Arts degree and paralegal certificate and was attending the University of California, Berkeley. He founded a consulting business to educate kids about the risks of gang involvement and criminal behavior. Mason reviewed the police report, Brown's interview, and Cervantes's interview and concluded Brown was not affiliated with the Norteños at the time of the shooting, although he was previously affiliated. He based his opinion on the fact Brown was not "wearing a lot of red" and he did not immediately start shooting when he saw the Sureños. He added Brown did not have any gang-related police contacts. Based on a hypothetical rooted in the case's facts, including the fact Sureños had previously attacked the shooter, Mason opined the shooter would be in fear for his life. Mason opined Brown's reference to the "Dodgers" merely showed he knew who the men were and did not establish it was a gang-motivated shooting.
III. Rebuttal
Firearms examiner Matthew Riles testified concerning bullet trajectory. He stated there were five bullet holes in the Minivan. He could accurately measure only two of the bullet holes. Based on the bullets trajectory, he opined the firearm was pointing straight across at or perpendicular to the Minivan.
IV Verdicts & Sentencing
The trial court instructed the jury, and counsel delivered closing argument. During deliberations, the jury asked the trial court five questions. The jury convicted Brown of all counts and found true all the special circumstance and enhancement 11 allegations. After the trial court denied Brown's motion for new trial, Brown admitted he suffered the prior strike conviction and the prior prison term.
The trial court sentenced Brown to prison for life without the possibility of parole plus 71 years as follows: count 6-the upper term of three years doubled to six years; count 1-life without the possibility of parole plus 25 years; count 2-life without the possibility of parole plus 25 years; count 3-seven years to life doubled to 14 years to life; and the prior prison term allegation-one year. The court imposed and stayed the sentence on count 4.
DISCUSSION
I. Miranda
Brown argues the trial court erred by denying his motion to exclude his statements to the detectives because he invoked his right to counsel pursuant to Miranda. We disagree.
A. Background
Before trial, the prosecutor filed a motion in limine to admit Brown's interview with the detectives. The prosecutor included the 99-page transcript of the interview as an exhibit. Brown filed an in limine motion seeking to exclude his statements pursuant to Miranda, supra, 384 U.S. 436, and various federal appellate court cases. Brown argued he unambiguously invoked his right to counsel.
The interview began with Meeker asking Brown biographical and background questions. Martinez interjected and advised Brown of his Miranda rights. When Martinez said, "You have the right to the presence of an attorney before and during any questioning do you understand that?" Brown answered, "Yes." After Martinez stated, "If you cannot afford an attorney one will be appointed for you free of charge before any questioning if you want, do you understand that [?]" Brown answered, "Yes." Brown confirmed he understood everything Martinez explained to him. The detectives questioned Brown extensively. The following colloquy occurred. 12
"Meeker: . . . Do you remember what kind of led up to this whole thing? . . . [Y]ou made some allegations that somebody tried to run up. . . . I need to find out what actually transpired that day because you made some reference to it. . . . So, I wanted to try to figure out what happened earlier that kinda set the stage for this mess to unfold. Can you kinda tell me about what happened leading up to this? "Brown: Can I talk with an attorney present?
"Meeker: You can always do that but I will say this. We don't have one for you. We - we can't do that for you now, okay. But you understand that this is just one of multiple recording [sic]. "Brown: Mm-hm.
"Meeker: Because there are multiple recordings. "Brown: Yeah.
"Meeker: You and your brother, um, you, your brother, [Estrada]. "Brown: So what am l looking at? Is what you're try - it.
"Meeker: Well there was a shooting, right. "Brown: Yes. So, what am I looking at though?" (Italics added.)
Meeker answered he did not know because he did not know what happened. Meeker said he was aware of the SUV and the telephone recordings, but asked Brown to explain what caused the shooting. After Meeker said officers arrested Estrada the previous day and his SUV was involved in the shooting, Brown asserted he acted in self-defense and shot a few times.
At an Evidence Code section 402 hearing, Brown's trial counsel argued he unequivocally invoked his right to counsel and the detectives should have ceased questioning him, and the court should exclude his statements after he invoked. The prosecutor asserted Brown's statement was ambiguous because he made his sole reference to an attorney "an hour and a half in" and then continued answering questions 13 "in the same fashion." The prosecutor said it would have been helpful if the detective asked follow-up questions, but they did not.
The trial court denied Brown's motion because his statement "'Can I talk with an attorney present?'" was not clear and unambiguous. The court reasoned that even if the detectives responded, "'Yes,' it [did not] necessarily mean he want[ed] to stop, even if he had an attorney present."
Brown's trial counsel inquired whether the trial court considered a case she mentioned in her written submission, United States v. Lee (7th Cir. 2005) 413 F.3d 622 (Lee). The court indicated it had not read the case and took a recess to read it. After a short recess, the court explained the Lee court relied on United States v. Wesela (7th Cir. 2000) 223 F.3d 656 (Wesela), but it opined the Lee court misinterpreted Wesela. The court concluded Lee did not change its ruling. B. Law & Analysis
"A defendant who has waived his Miranda rights may reinvoke them during the interrogation. If he clearly and unequivocally does so, police must stop questioning. [Citations.] Once a suspect has invoked his right to counsel, police may not resume questioning until counsel is provided or the suspect himself reinitiates contact. [Citations.] 'Edwards set forth a "bright-line rule" that all questioning must cease after an accused requests counsel. [Citation.] In the absence of such a bright-line prohibition, the authorities through "badger[ing]" or "overreaching"-explicit or subtle, deliberate or unintentional-might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance.' [Citation.] [¶] 'In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect "must unambiguously" assert his right to silence or counsel.' [Citations.] Ambiguous or equivocal references to an attorney are not sufficient. [Citation.] The suspect must express his desire for counsel with sufficient clarity 'that a reasonable police officer in the circumstances would 14 understand the statement to be a request for an attorney.' [Citation.] '[T]his is an objective inquiry.' [Citation.] '[A]fter a suspect makes a valid waiver of the Miranda rights, the need for effective law enforcement weighs in favor of a bright-line rule that allows officers to continue questioning unless the suspect clearly invokes the right to counsel or right to silence.' [Citation.] [¶] On review, '"we accept the trial court's determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda."' [Citations.]" (People v. Henderson (2020) 9 Cal.5th 1013, 1022-1023 (Henderson); Davis v. United States (1994) 512 U.S. 452, 459 (Davis).)
Here, the facts are undisputed. The issue is whether Brown clearly invoked his right to counsel.
Various courts have held that a suspect's use of equivocal words or phrases does not constitute a clear request for counsel's assistance. (See, e.g., Davis, supra, 512 U.S. at p. 462 ["'Maybe I should talk to a lawyer'"]; People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219 ["'If you can bring me a lawyer'"]; People v. Bacon (2010) 50 Cal.4th 1082, 1105 ["'I think it'd probably be a good idea for me to get an attorney'"]; People v. Johnson (1993) 6 Cal.4th 1, 27, 30 ["'Maybe I ought to talk to my lawyer'"], overruled on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 878-879]; People v. Scaffidi (1982) 11 Cal.App.4th 145, 153 ["'There wouldn't be [an attorney] running around here now, would there? . . . I just don't know what to do'"].)
Whether Brown clearly invoked his right to counsel is a close question. On the one hand, Brown's attempt to invoke his right to counsel is similar to that made by the suspect in Lee, supra, 413 F.3d at page 624, where he said, "'Can I have a lawyer?'" On the other hand, Brown did not make his statement invoking counsel at the outset of the interview. Rather, he said, "'Can I talk with an attorney present?'" about 90 minutes into the interview. 15
Under the current state of the law, we conclude that a reasonable police officer would not have understood Brown's statement to be an unambiguous and unequivocal request for an attorney. We agree with the Attorney General that Brown's statement "contained] two topics"-Brown wanted to know if an attorney could be produced and he wanted to keep talking. (Henderson, supra, 9 Cal.5th at p. 1023 ['"In certain situations, words that would be plain if taken literally actually may be equivocal under an objective standard, in the sense that in context it would not be clear to the reasonable listener what the defendant intends'"].) Brown said, "Can I talk with an attorney present?" Brown's statement was ambiguous and equivocal because a reasonable officer could have concluded Brown was undecided on how he was going to proceed: stop talking without an attorney or keep talking with an attorney. (See People v. Nelson (2012) 53 Cal.4th 367, 377 (Nelson) [applying same rules when accused invokes right to counsel and right to remain silent].)
Although our inquiry is an objective one, we find support for this interpretation in Meeker's response. He said Brown could always speak with an attorney but one was not immediately available. Contrary to Brown's assertion Meeker could only understand this to mean he invoked his right to counsel, one could also reasonably conclude Meeker understood Brown wanted to keep talking. And he did. After Meeker said he had numerous recordings, Brown twice asked Meeker "what am I looking at?" Brown did not mention an attorney for the remainder of the interview. In view of Brown's statement of uncertainty regarding whether he wanted a lawyer and his ongoing willingness to talk, it was reasonable for the detectives to interpret the statements as equivocal. (See Nelson, supra, 53 Cal.4th at p. 382.)
Our Supreme Court has made clear the issue of whether an accused has waived the right to counsel before the interrogation is a distinct inquiry from the issue of whether, subsequent to a valid waiver, an accused has invoked the right to counsel. (People v. Williams (2010) 49 Cal.4th 405, 427.) "It is settled that in the latter 16 circumstance, after a knowing and voluntary waiver, interrogation may proceed 'until and unless the suspect clearly requests an attorney.' [Citations.] Indeed, officers may, but are not required to, seek clarification of ambiguous responses before continuing substantive interrogation. [Citation.]" (Ibid.) Because Brown's statement was ambiguous, Meeker could have but was not required to seek clarification or cease questioning Brown.
People v. Crittenden (1994) 9 Cal.4th 83 (Crittenden), provides additional, independent support for our conclusion. In that case, our Supreme Court held defendant's question, "'Did you say I could have a lawyer?'" was not an unequivocal request for an attorney and thus not an invocation because defendant "simply asked a question." (Id. . at pp. 123, 130-131.)
Crittenden was overruled on other grounds in Crittenden v. Chappell (9th Cir. 2015) 804 F.3d 998, 1004.
Even standing alone, we would not interpret Brown's question regarding whether he could have an attorney present as an unequivocal and unambiguous invocation of the right to counsel. Similar to Crittenden, Brown simply asked a question. Near the beginning of the interview, Martinez advised Brown that he had the right to an attorney and if he could not afford an attorney, the court would appoint an attorney to represent him. Brown agreed he understood his rights. About halfway through the interview, which the prosecutor described as about the 90-minute mark without objection, Brown inquired, "Can I talk with an attorney present?" A reasonable officer could conclude Brown was inquiring whether he could speak with an attorney and not saying he affirmatively wanted to speak with an attorney. We caution, however, had Brown made this statement at the beginning of the interview the result would likely be different.
Brown cites to numerous California and federal cases to support his contention he unambiguously and unequivocally invoked his right to counsel. Brown's reliance on Smith v. Illinois (1984) 469 U.S. 91, is misplaced because he initially waived 17 his right to counsel. That case explicitly considered only the threshold inquiry of "whether [the defendant] invoked his right to counsel in the first instance." (Id. at p. 95.) It did not consider the invocation of the right after an initial waiver at issue here. (People v. Johnson (2019) 32 Cal.App.5th 26, 56, fn. 12.) Nor does Henderson, supra, 9 Cal.5th at page 1020, assist Brown. In that case, defendant said, "uh, want to, speak to an attorney first, because I, I take responsibility for me, but there's other people that Our Supreme Court reasoned defendant "clearly" said he wanted to speak with an attorney before making a statement and explained why. (Id. at pp. 1023, 1027.) Here, as we explain above, Brown's language was far from "clear."
Brown also cites to numerous federal appellate court cases. (Martinez v. Cate (9th Cir. 2018) 903 F.3d 982 (Martinez); Mays v. Clark (9th Cir. 2016) 807 F.3d 968 (Mays); Sessoms v. Grounds (9th Cir. 2015) 776 F.3d 615 (Sessoms); Smith v. Endell (9th Cir. 1988) 860 F.2d 1528 (Smith); Lee, supra, 413 F.3d 622.) At the outset, we note federal appellate court cases are not controlling precedent and are only persuasive. (People v. Leon (2020) 8 Cal.5th 831, 844.) Additionally, because our Supreme Court held simply asking a question was insufficient to invoke his right to an attorney, the federal authority does not compel us to reach a contrary conclusion.
As to whether the federal appellate court cases support Brown's assertion he unambiguously and unequivocally invoked the right to counsel, three cases are readily distinguishable and two merit further discussion. Martinez, supra, 903 F.3d at pages 988-989, Sessoms, supra, 776 F.3d at pages 618-619, and Lee, supra, 413 F.3d at page 18 624, were all initial waiver cases, i.e., an officer advised the accused of his Miranda rights and the accused referenced a lawyer at the beginning of questioning. "Whereas the question whether a waiver is knowing, intelligent, and voluntary calls for an evaluation of the suspect's state of mind, the same cannot be said for determining whether a suspect's postwaiver statement requires the immediate cessation of police questioning. [Citation.]" (Nelson, supra, 53 Cal.4th at p. 376.) Thus, Martinez, Sessoms, and Lee are inapposite.
Brown notes that in Martinez, the California Attorney General was counsel for respondent and conceded defendant unambiguously invoked his right to counsel. Brown asserts the Attorney General should be bound by that concession in this case because the statements were allegedly similar. We decline his invitation. (People v. Payton (1992) 3 Cal.4th 1050, 1073 ["it is our duty to decide the issue based on the arguments and record of this case, not comments taken out of context in a different case"].)
In Mays, supra, 807 F.3d at page 971, the court held defendant's statement, "My step-dad got a lawyer for me. . . . can you call him and have my lawyer come down here?" was a valid invocation. In Smith, supra, 860 F.2d at page 1529, the court held defendant's statement, "Can I talk to a lawyer? At this point, I think maybe you're looking at me as a suspect, and I should talk to a lawyer. Are you looking at me as a suspect?" was a valid invocation. Both of these cases involve unambiguous requests for a lawyer. As we explain above, Brown referenced a lawyer but also indicated he wanted to keep talking by asking what charges he was facing. Thus, both Mays and Smith are of no help to Brown. Because we have independently concluded Brown did not invoke his right to counsel and thus the trial court did not err, we need not address whether he was prejudiced. II. Admission of Evidence
In his reply brief, Brown asserts the Attorney General implicitly concedes 11 items that it did not deny or address. A couple points are worth mentioning. First, the Attorney General does deny Meeker's understanding of Brown's statement was objectively reasonable on pages 45 to 46, although he may not have mentioned "objectively reasonable" on those pages. Second, Brown focuses on who was the first to speak after he referenced an attorney. If the statement was ambiguous, which we conclude it was, Meeker was not required to ask clarifying questions or cease questioning. (Williams, supra, 49 Cal.4th at p. 427.) Thus, Brown's reliance on Edwards v. Arizona (1981) 451 U.S. 477, and Arizona v. Roberson (1988) 486 U.S. 675, is misplaced.
Brown contends the trial court erred by admitting evidence of his telephone calls because Jarek's statements were inadmissible hearsay and anticipating the Attorney 19 General's forfeiture argument, alternatively claims he received ineffective assistance of counsel. As we explain below, Brown forfeited appellate review of these contentions, and he was not prejudiced.
A. Merits
1. Background
In his in limine motion, the prosecutor sought to admit 17 prison telephone calls between Brown and Jarek and the three-way call as admissions of a party opponent (Evid. Code, § 1220). Brown's in limine motion on this evidence focused on whether an expert witness could testify as to the calls' content. Brown did not object to admission of the calls on relevance, prejudice, or hearsay grounds. He also requested his in limine objections to evidence be deemed raised again when the prosecution presented the evidence at trial.
At the Evidence Code section 402 hearing, there was a lengthy discussion about which calls, or portions thereof, the prosecutor sought to admit, and the procedure by which Brown, Jarek, and Estrada would object. After Brown's trial counsel said she would have to file another in limine motion, she objected to the calls on relevance, lack of foundation, and hearsay grounds. The trial court indicated they would go through each call later. Brown's trial counsel stated she was not objecting to the three-way call and was only making hearsay objections to non-defendants on the calls. The court granted Brown's motion his in limine objections be deemed raised at trial "if it's raising the same objection."
The following week, the trial court went through each call with counsel and ruled on Brown's, Jarek's, and Estrada's objections. As relevant to the calls on appeal, counsel objected to call Nos. 1, 2, 6, 7, 11, 13, 14, and 15 on Evidence Code sections 350 and 352 grounds. As to call No. 1, Brown's trial counsel stated that from the beginning 20 of the call to page four, "[she was] not saying that this part isn't relevant or [Evidence Code section] 352."
At the outset, when the trial court said it assumed counsel were joining in each other's objections, no one objected.
Brown's trial counsel stated she had no objection to call Nos. 1A, 5, or 8. With respect to calls not at issue on appeal, counsel objected to call Nos. 3, 4, and 9 on relevance, prejudice, and hearsay grounds. A few days later, during voir dire Jarek and Estrada pleaded guilty.
At trial, the prosecutor questioned Meeker about the prison telephone calls and played a portion of call No. 1, the three-way call between Brown, Jarek, and Estrada, for the jury. Brown said" [he] went on Williams" and "(inaudible) tried to run up." After Estrada asked "Who tried to run up?", Jarek said, "Southsiders tried to run up on him." Jarek asked, "Did you get, you get on 'em or what?" Brown replied, "Yeah, fool, I (inaudible) niggas like click-clack, nigga, and I ran." Jarek said, "Oh, okay. Hit him with a click-clack?" Brown said, "I hit 'em with the click-clack, thinking like (inaudible)." Jarek asked him if he was okay, and Brown said, "I'm always straight, that, that's (inaudible)."
While the recording was playing, Brown's trial counsel asked to approach, the prosecutor stopped the recording, and the trial court excused the jury. Counsel stated the prosecutor previously indicated which portion of the call he sought to admit, but that was when Jarek and Estrada were still part of the case. After the court repeated its prior ruling it overruled Brown's objection to admission of page four to the end (page nine), it stated, "We're going to have to go through these again, because now there's only one defendant in the case."
Brown's trial counsel stated she was objecting to admission of call No. 1 from page 4, line 12, where Brown was no longer on the call, to the end, page 9, line 13. The court stated it thought this portion of the call was relevant to Jarek and Estrada acting as accessories and asked what was its relevance now. After the prosecutor answered, the court said Brown's trial counsel objected it was hearsay in an unreported discussion and 21 asked the prosecutor whether there was an exception. The prosecutor responded Brown was still on the three-way call, and the court disagreed and excluded evidence of the remainder of the call, page 5, line 17 to the end.
The prosecutor played call Nos. 1A, 2, 5, 6, 7, 8, 11, 13, 14, and 15 for the jury.
During call No. 1A, Jarek asked Brown what was wrong, and Brown told him there was possibly a video of "[t]he whip." Brown explained he was on the phone with Jarek when "the Dodgers" "circled back and tried to pull up." When Jerek asked "put the whole thing?", the following colloquy occurred: "Jarek: And just put the whole thing?
"[Brown]: Yep. "Jarek: Ha-ha. Fuckin' idiot.
"[Brown]: Got 'em. "Jarek: Good?
"[Brown]: Oh, I did. "Jarek: No longer?
"[Brown]: No more. "Jarek: . . . Get rid of that.
"[Brown]: Did that." Meeker testified "'whip'" meant a car. He opined Jarek was telling Brown to get rid of the gun.
During call No. 2, after Brown asked what was happening, Jarek said," [O]ne, one for sure, and three, half." Meeker testified that news reports the day after the shooting stated there were three people in the Minivan, one person was dead, and one was in critical condition. 22
During call No. 5, Jarek told Brown to take Estrada's "whip" next time he saw him. Brown said he would. Meeker said Jarek was telling Brown to take Estrada's SUV and keep it.
During call No. 6, Jarek asked Brown, "They were all wiped though, right? Brown replied, "Yes." Jarek said, "Even the babies in it." Brown said, "Yup." Meeker stated Jarek was telling Brown to clean the bullets.
During call No. 7, Brown told Jarek he was "fuckin' sweatin' right now[]" because "[t]hey don't wanna dispose this shit." He added, "I borrowed his whip. . . . Now he doesn't love me. Now he fuckin' hates me." Jarek told Brown "cut [Estrada's] hands off completely" stop paying for Estrada's cell phone. During call No. 8, Jarek told Brown, "[I]f you see the barbeque pit, nigga, fuckin' throw some briquettes in there." Meeker opined Jarek was telling Brown to burn Estrada's SUV.
During call No. 11, Jarek called and spoke with Girlfriend; Brown was not home. Girlfriend told Jarek that Brown went to visit Estrada, and they spoke about Estrada. Girlfriend initiated a three-way call with Brown, and the rest of the call was between Brown and Jarek. During call No. 13, after Brown said he apologized to Estrada, Jarek said, "[G]o find where he's at and fuckin' blow his car up, I don't give a fuck." Brown said Estrada "already totaled it[, ]" and Jarek said, "That's what he gets, good. Get rid of the evidence." Meeker again opined Jarek was telling Brown to burn Estrada's SUV.
During call No. 14, Brown told Jarek they were going on "a road trip" because things were "[g]ettin' a little bit closer to home than expected." Brown said officers were interrogating Estrada and Mejia. Brown said he was going to "[p]ut a smile on before the tears fall." After Jarek said there was no proof, Brown replied, "there's hearsay." During call No. 15, Brown said, "I guess the kid's out." Jarek said, "I mean, I love him to death, he keep his mouth shut, but if he don't, just, just you already know." 23
Brown's trial counsel made numerous objections during Meeker's testimony, a few of which were on hearsay grounds, but other than call Nos. 1 and 11, she did not object to any of the telephone calls on hearsay or any other grounds.
As to call No. 11, after the prosecutor played the call, Brown's trial counsel objected and asked to approach the bench where there was an unreported discussion. Back on the record, the trial court instructed the jury the conversation between Jarek and Girlfriend could be considered only for context and not for its truth.
2. Law & Analysis
Evidence Code section 353 provides, "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . ." Thus, "[r]eviewing courts will generally not consider a challenge to the admissibility of evidence unless there was a '"'specific and timely objection in the trial court on the [same grounds] sought to be urged on appeal.'"' [Citations.]" (People v. Gomez (2018) 6 Cal.5th 243, 286.)
In his written motion in limine, Brown did not object to Jarek's statements in the telephone calls on the ground they were inadmissible hearsay. At the initial Evidence Code section 402 hearing, Brown's trial counsel said she would have to file another in limine motion and she made a blanket hearsay objection to all the calls. The trial court indicated they would address each call at a later time. On that date, the court addressed each call and allowed Brown's, Jarek's, and Estrada's attorneys to make their objections. Counsel made numerous objections to the calls pursuant to Evidence Code sections 350 and 352. When appropriate, the court asked the prosecutor to explain the relevance of the evidence vis-à-vis the three defendants. The court ruled on the objections, admitting many of the calls and excluding others or portions of others. Based 24 on our review of the record, the only hearsay objections were to call Nos. 3, 4, and 9, none of which are at issue on appeal.
In his opening brief, Brown asserts his trial counsel objected to call No. 8 on hearsay grounds and cites to page 973 of the reporter's transcript. Counsel objected, but not on hearsay grounds, and withdrew the objection.
At trial, during Meeker's testimony, after the prosecutor played what appeared to be about half of call No. 1, Brown's trial counsel asked to approach the bench. Counsel did not object to admission of call No. 1 to page 4, line 12. Indeed, on two occasions, in limine and during trial, counsel said she was not objecting to this portion of the call. The trial court settled on where the prosecutor stopped playing the recording of this call, page 5, line 17, and it excluded the remainder of the call. The court stated that because Jarek and Estrada pleaded guilty and were not part of the case, the court and counsel had to address each of the calls again to determine their admissibility. The prosecutor played each of the remaining calls for the jury. Brown's trial counsel did not object to admission of any of the calls on the ground Jarek's statements were inadmissible hearsay, except call No. 11. In an unreported discussion, counsel presumably objected to the discussion between Jarek and Girlfriend on hearsay grounds because when back on the record, the court instructed the jury the statements were for context and not for their truth. Other than this lone instance, our review of the record reveals no occasion where Brown's trial counsel renewed her objection, or made a hearsay objection in the first instance, to Jarek's statements because they were inadmissible hearsay. With Jarek and Estrada no longer part of the trial, the relevance, prejudicial effect, and potential applicability of any hearsay exception as to only Brown had to be addressed again.
Brown cites to the trial court's granting of his in limine request that objections to evidence be deemed raised again when the prosecution presented the evidence at trial. Even assuming that carried the day, which we conclude it did not, 25 counsel did not object in limine to any of the calls Brown complains of on appeal on the grounds Jarek's statement were inadmissible hearsay. Thus, Brown's claims are forfeited.
One claim, however, requires comment. Brown asserts the trial court erred by admitting two of Jarek's statements in call No. 1. He references Jarek's statement to put $100 on someone's prison account and his statement that could be construed as a threat. The court excluded from evidence page 5, line 17 to the end. The first of these statements was on page six of the transcript and the second was on page eight, and thus, the jury did not hear this evidence. Because we conclude Brown forfeited his claims, we must address his ineffective assistance of counsel contention. B. Ineffective Assistance of Counsel
Brown asserts that if we conclude he forfeited his contentions because inter alia his trial counsel did not object to the prosecutor's closing argument concerning Jarek's calls, there was no strategic reason for doing so. We note Brown does not assert the prosecutor committed misconduct.
"To obtain relief, he 'must prove "'that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant.'"' [Citation.] A reasonable probability, the high court has said, 'is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (In re Champion (2014) 58 Cal.4th 965, 1007.) "'[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' [Citation.]" (Ibid.) 26
Here, we need not determine whether Brown's trial counsel's performance was deficient because it was not reasonably probable that had the trial court excluded Jarek's statements during the telephone calls Brown would have received a more favorable result. During his interview, Brown admitted he fired his gun a few times but asserted he acted in self-defense when three men in a Minivan approached him from the rear. He thought the passenger had a machete, shotgun, or pipe in his hand.
Thus, the only issue the jury had to decide was whether Brown acted in self-defense. Brown's admissions in call No. 1 and other evidence at trial convince us Brown was not prejudiced by Jarek's statements in the prison telephone calls. In call No. 1, a portion of which Brown's trial counsel did not object to, Brown said someone "tried to run up[]" on him, and Jarek asked, "Did you get, you get on 'em or what?" Brown replied, "Yeah, fool, I . . . niggas like click-clack, nigga, and I ran[]" and "I hit 'em with the click-clack, thinking like . . . ." Meeker opined "click-clack" meant gun, and Martinez opined that based on Brown's language, the three-way call occurred right after the shooting. Brown's statement to Jarek could reasonably be interpreted as confirmation he shot at the three Southsiders who confronted him. In the call, Brown made no reference to any of the men having a weapon and seemed not to be concerned of any consequences. Brown's admission and his lack of any mention of self-defense or remorse immediately after the shooting undermine his later statement to detectives he acted in self-defense.
Relying on "urbandictionary.com, " Brown quibbles with Meeker's opinion of the meaning of "click-clack" and asserts it could refer to a game where people sit in a circle and point fingers. The same definition also indicates it can refer to the noise a shotgun makes. In any event, Brown conceded he fired the gun.
Additionally, the record supports the conclusion Brown pursued the victims, not that the victims pursued him. Cervantes testified the SUV appeared in the lane to his right. Video surveillance footage supported Cervantes's testimony the SUV 27 appeared on the right, and the police forensic analyst's testimony concerning the video surveillance supported the conclusion the SUV was about one minute behind the Minivan and would have been the pursuer. The pathologist's testimony supports the conclusion Verduo's and Rangel's fatal wounds were from the back. From this evidence the jury could reasonably conclude Brown pursued the victims, drove next to them on the right side, and shot at them from behind or slightly behind them. Jarek's statements, which Brown characterizes as inflammatory improper character evidence, carried little, if any, evidentiary value when compared to Brown's admissions and the other evidence described above. Thus, it was not reasonably probable Brown would have obtained a better result had the trial court excluded Jarek's statements.
III. Jury Instruction
Relying on People v. Canizales (2019) 7 Cal.5th 591, 602 (Canizales), a case decided after the verdicts but before sentencing, Brown asserts the trial court erred in instructing the jury on the kill zone theory on count 3 because the instruction was incorrect and not supported by substantial evidence. Neither contention has merit.
The Attorney General does not dispute Canizales applies retroactively. (In re Rayford (2020) 50 Cal.App.5th 754, 776-778.)
As he did with his first two arguments, Brown claims the Attorney General should be deemed to concede CALCRIM No. 600 did not satisfy Canizales because he did not address and deny the contention. The Attorney General did in fact address this contention. (See respondent's brief p. 72.) In his opening brief, Brown states, "Second, there was insufficient evidence to support the kill zone theory . . . ." However, in his reply brief, Brown says, "Second, [he] did not argue that the kill zone instruction was defective because there was no substantial evidence to support it." This is a bit confusing because Canizales was a sufficiency of the evidence case. Nevertheless, we construe Brown's argument to raise both factual and legal challenges to CALCRIM No. 600.
"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.' [Citation.]" (Canizales, supra, 7 Cal.5th at p. 602.) 28
Because direct evidence of intent to kill is rare, that intent must ordinarily be inferred from the actions and statements of the defendant and the circumstances surrounding the crime. (Ibid.)
In People v. Bland (2002) 28 Cal.4th 313, 318 (Bland), defendant and a fellow gang member approached a car in which a rival gang member was sitting in the driver's seat. Defendant fired numerous rounds with a . 38-caliber handgun into and at the vehicle as it drove away. (Ibid.) The driver was killed and his two passengers were wounded. (Ibid.) Our Supreme Court endorsed the concept of a concurrent intent to kill as a permissible theory for establishing the specific intent required for attempted murder. (Id. at p. 329.) The Bland court applied what is commonly referred to as the "kill zone" theory of attempted murder. Under that theory, the prosecution can attempt to show either that the defendant's intent to kill one or more alleged victims arose independently of his actions toward any other victim, or that the intent to kill an untargeted victim arose concurrently with the intent to kill a primary target. (Canizales, supra, 7 Cal. 5th at p. 603; Bland, supra, 28 Cal.4th at pp. 313, 318.) The Bland court provided the following hypothetical to illustrate the concept:" [C]onsider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A's head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death." (Bland, supra, 28 Cal.4th at p. 330.) 29
Our Supreme Court expressed its concern about the "misapplication of the kill zone theory" by some appellate courts in Canizales. (Canizales, supra, 7 Cal.5th at p. 608 ["relatively few cases in which the theory will be applicable and an instruction appropriate"].) The court clarified, consistent with its original pronouncement on the kill zone theory in Bland, supra, 28 Cal.4th 313, that an instruction on the kill zone theory is proper only in the following cases where: "(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." (Id. at pp. 596-597.) The court added the following: "In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target. 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." (Id. at p. 607.)
In Canizales, defendant fired five shots at a primary target and his companion from 100 feet away at a block party. (Canizales, supra, 7 Cal. 5th at p. 611.) The shots were '"going everywhere'" and killed an innocent bystander rather than the intended target. (Ibid.) The court concluded, "The evidence presented here showed that from a substantial distance [defendant] shot five bullets in the direction of a target who immediately ran down a city street after the first shot was fired. This evidence was insufficient to support instruction on the kill zone theory." (Id. at p. 611.) Having determined sufficient evidence did not support the kill zone theory, the Canizales court 30 declined to address defendant's constitutional challenge to the standard kill zone instruction found in CALCRIM No. 600. However, it observed, "the standard instruction should be revised to better describe the contours and limits of the kill zone theory as we have laid them out here." (Id. at p. 609.)
"'The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.] "It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation].' [Citation.]" (People v. Alexander (2010) 49 Cal.4th 846, 920-921.) We review a claim of instructional error de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
The trial court instructed the jury with CALCRIM No. 600, "Attempted Murder," as follows: "[Brown] is charged in [c]ount 3 with attempted murder. [¶] To prove that [Brown] is guilty of attempted murder, the [prosecution] must prove that: [¶] 1. [Brown] took at least one direct but ineffective step toward killing another person; [¶] [and] [¶] 2. [Brown] intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] A person 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 31 zone.' In order to convict [Brown] of the attempted murder of . . . Cervantes, the [prosecution] must prove that [Brown] not only intended to kill . . . Rangel or . . . Verduo but also either intended to kill . . . Cervantes, or intended to kill everyone within the kill zone. If you have a reasonable doubt, whether [Brown] intended to kill . . . Cervantes or intended to kill . . . Rangel or . . . Verduo by killing everyone in the kill zone, then you must find [Brown] not guilty of the attempted murder of . . . Cervantes."
Here, the facts are more like the facts in Bland, and its hypothetical, than the facts in Canizales. Brown, a Norteño, drove alongside the Minivan he believed contained rival Sureños who had just confronted him. As Brown pulled up next to the victims' vehicle, so close Cervantes could see the handgun, he began shooting directly at the Minivan. Based on the eyewitness testimony, ballistic evidence, and Brown's admission he could have fired the semiautomatic gun until the cartridge was empty, it was reasonable to conclude Brown fired at least eight times and likely more. The evidence demonstrated six or more bullets entered the Minivan. The proximity of Brown to the victims when he shot a semiautomatic weapon multiple times at them from close range, and the fact the victims were confined inside the Minivan, demonstrates a strong inference that Brown intended to create a zone of fatal harm and harbored the requisite intent to kill both the primary targets and everyone within the zone of fatal harm. Consistent with Canizales, the only reasonable inference from the evidence is that Brown intended to create a kill zone around Rangel and Verduo, and Cervantes was located within that zone. Thus, we conclude that substantial evidence supported the instruction on the kill zone theory.
The Canizales court did not overrule Bland. In fact, the court relied on Bland's analysis and referenced the hypothetical the Bland court provided. (Canizales, supra, 7 Cal.5th at p. 602.)
Brown complains there was no evidence he saw Cervantes in the Minivan and thus did not know he was in the Minivan. Canizales held the kill zone theory applies 32 to anyone within the zone of fatal harm. (Canizales, supra, 7 Cal.5th at p. 607.) That court did not impose a requirement the defendant must be aware of who is in the zone of fatal harm. The kill zone theory may apply even if the perpetrator did not know of the existence of the specific victim.
In his reply brief, Brown asserts CALCRIM No. 600 "did not define for the jury the meaning of the term 'zone of fatal harm.'" This is a new gloss on his argument, and we do not consider arguments raised for the first time in a reply brief. (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583 (Nordstrom)) In any event, while the Canizales court did indicate CALCRIM No. 600 "should be revised to better describe the contours and limits of the kill zone theory" (Canizales, supra, 7 Cal.5th at p. 609), it did not determine the propriety of the kill zone instruction, propose language revising the instruction, or indicate it was error to give the standard instruction. Thus, the court did not expressly invalidate CALCRIM No. 600.
Finally, People v. Booker (2020) 58 Cal.App.5th 482, is of no assistance to Brown. In that case, defendants and the two victims had a brief encounter in a store. (Id. at p. 488.) Soon after the victims left in a car, defendants' car pulled alongside them, and the shooter fired three to seven shots at the victims' car, killing the driver but leaving the passenger uninjured. (Id. at pp. 488-489.) Citing to Canizales, supra, 7 Cal. 5th 591, the Booker court opined two of the factors to support the kill zone theory were present-the distance between the defendant and the alleged victims, and the closeness of the victim to the intended target. (Id. at pp. 500-501.) The court reasoned, however, the type and amount of force used did not support the kill zone theory and found that dispositive. The court found it dispositive the "three to seven shots" from a non-semiautomatic or automatic weapon were "directed at the front driver's side" and "there were no bullet holes in the car's body or doors that would have reflected a spray of bullets." (Id. at p. 500.) 33
Here, unlike in Booker, Brown did not direct his gunshots to one location. The evidence demonstrated Brown fired no fewer than six gunshots. The spray of bullets from the semiautomatic weapon hit various parts of the front cabin from the windshield to the pillar behind the front seats and a nearby laundromat and vehicle. From this evidence it was reasonable to conclude Brown had a primary target-the man with the black object in his hand-and reasoned he could not miss that intended target if he killed everyone in the area in which the target is located. (Canizales, supra, 7 Cal.5th at p. 607 [determination does not turn on effectiveness or ineffectiveness of attack].) Therefore, the court did not err in instructing the jury on the kill zone theory. IV. Sentencing A. Premeditation
Brown contends the trial court erred by sentencing him on count 3 to seven years doubled to 14 years because the jury did not find he acted with premeditation and deliberation. The Attorney General concedes the issue.
Attempted murder is punishable by a determinate term of five, seven, or nine years in prison. (§ 664, subd. (a).) Premeditated attempted murder is punishable by life with the possibility of parole after seven years. (§§ 664, subd. (a), 3046, subd. (a)(1).) "The additional term provided . . . for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact." (§ 664, subd. (a); People v. Lee (2003) 31 Cal.4th 613, 616.)
The information did not allege Brown committed premeditated attempted murder, and the jury did not make such a finding. Thus, the trial court erred when it imposed an indeterminate life term on count 3.
The Attorney General notes the trial court initially indicated it would impose a determinate term and after an unreported sidebar discussion requested by the 34 prosecutor, imposed an indeterminate sentence. The Attorney General asks this court to now impose the indicated sentence-the upper term of nine years doubled to 18 years. We decline his invitation. The better course is to remand the matter to allow the trial court to exercise its sentencing discretion. B. Section 667.5
Brown argues the section 667.5, subdivision (b), enhancement should be stricken because the Legislature eliminated the penalty. The Attorney General concedes the issue.
Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b), to authorize a one-year prior prison term enhancement only where the prior prison term was served "for a sexually violent offense . . . ." (Stats. 2019, ch. 590, § 1.) Brown's prior conviction, for which he served a prior prison term, was for driving a stolen vehicle. (Veh. Code, § 10851, subd. (a).) This offense no longer qualifies under section 667.5 for the prior prison term enhancement, and Brown is no longer eligible for the one-year prior prison term enhancement. The amended statute applies to appellant because the judgment in this case is not yet final. (People v. Gastelum (2020) 45 Cal.App.5th 757, 772.) Because we remand the matter for the trial court to exercise its sentencing discretion, the court can strike the one-year prior prison term.
V. Cumulative Error
Brown contends the cumulative effect of the errors was prejudicial. Because we conclude there were no errors other than the sentencing error, we reject his contention the judgment must be reversed due to the cumulative effect of alleged errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.) 35
DISPOSITION We reverse the indeterminate sentence on count 3 and the one-year prior prison term, and remand. In all other respects the judgment is affirmed.
WE CONCUR: BEDSWORTH, J. GOETHALS, J. 36