Summary
In People v. Cerda (2020) 45 Cal.App.5th 1, Division Three of this court found sufficient evidence to support a kill zone instruction when the defendants shot into two separate houses with an assault rifle.
Summary of this case from People v. GonzalezOpinion
B232572
02-07-2020
The PEOPLE, Plaintiff and Respondent, v. Peter Juan CERDA et al., Defendants and Appellants.
Ralph H. Goldsen, Goleta, under appointment by the Court of Appeal, for Defendant and Appellant Peter Juan Cerda. Edward H. Schulman, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant Kyle Allin Johnson. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pitney, Acting Senior Assistant Attorney General, William Shin and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are identified as those portions between double brackets, e.g., [[/]].
Ralph H. Goldsen, Goleta, under appointment by the Court of Appeal, for Defendant and Appellant Peter Juan Cerda.
Edward H. Schulman, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant Kyle Allin Johnson.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pitney, Acting Senior Assistant Attorney General, William Shin and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
HANASONO, J. Defendants and appellants Peter Juan Cerda and Kyle Allin Johnson were involved in shooting into two separate houses with an assault rifle. They appealed their convictions of one count of murder and twenty-three counts of attempted premeditated murder with gang and firearm enhancements. They raised claims of insufficiency of the evidence, instructional error, ineffective assistance of counsel, cumulative error, and sentencing error. In a nonpublished opinion filed on July 18, 2013, we affirmed the judgments but vacated Johnson’s sentence and remanded for resentencing. ( People v. Cerda et al . 2013 WL 3778240 (Jul. 18, 2013, B235674) [nonpub. opn.].)
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The matter was reviewed again, based on Cerda’s motion to recall the remittitur. In a nonpublished opinion filed on January 23, 2015, we reversed Cerda’s first degree murder conviction and remanded the matter to the trial court, allowing the district attorney to retry the murder charge or accept a reduction of Cerda’s conviction to second degree murder. ( People v. Cerda et al . 2015 WL 305237 (January 23, 2015, B235674) [nonpub. opn.].)
Counsel for Cerda notes that the district attorney did not opt to retry him for first degree murder.
While Cerda’s and Johnson’s appeals were pending, the Legislature enacted Senate Bill No. 1437 (SB 1437) (Stats. 2018, ch. 1015), which amended the laws related to malice and accomplice liability for murder. The Legislature also enacted Senate Bill No. 620 (SB 620) (Stats. 2017, ch. 682), which gave trial courts discretion to strike or dismiss certain firearm enhancements.
Now, the matter has returned to us once again. The Supreme Court granted appellants’ petition for review and has transferred the matter to us with directions to vacate our earlier decision and reconsider the cause in light of SB 1437, SB 620, and People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686 ( Canizales ), which limited the application of the kill zone theory for attempted murder.
In accordance with the Supreme Court’s order, we vacate the January 23, 2015 nonpublished opinion. In the published portion of this opinion, we discuss why the evidence was sufficient to support the kill zone theory of liability.
In the nonpublished portion, we reject Cerda’s and Johnson’s other arguments that (1) SB 1437 should apply to attempted murder; (2) the natural and probable consequences doctrine should not apply to attempted premeditated murder; and (3) SB 1437 should apply retroactively without complying with its petition procedure. We vacate Cerda’s and Johnson’s sentences and remand for resentencing in light of SB 620. The trial court is also to afford Johnson an opportunity to make a record that complies with the requirements of People v. Franklin (2016) 63 Cal.4th 261, 283–284, 202 Cal.Rptr.3d 496, 370 P.3d 1053 ( Franklin ). The decision regarding Cerda’s and Johnson’s previously raised claims of error remains the same as in the prior opinion. We again reverse Cerda’s first degree murder conviction because the trial court improperly permitted the jury to find that he was guilty under the natural and probable consequences doctrine. The judgments of conviction are otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
A. Prosecution Evidence
1. Katrina Place shooting (counts 1–14)
On February 8, 2008, 14-year-old Robert E. was at his house on Katrina Place in Palmdale. He was with his mother, Luz E., his sisters, Mayra E. and Christina E., and his brothers, including 12-year-old Francisco E. They were throwing a party at the house.
To protect the personal privacy interests of the victims, other than Gerardo Salazar who was killed, we will refer to each by first name and last initial. (Cal. Rules of Court, Rule 8.90, subd. (b)(4).)
Later in the evening, Robert E. heard gunshots while he was in the garage with Ricardo R., one of his sister’s friends. Robert E. heard something hit an area immediately next to him. Upon hearing the gunshots, he ducked and crawled into the house. He heard about ten shots rapidly fire. Ricardo R. heard about fifteen shots. The garage door was closed at the time.
Francisco E. was sitting at a dining room table with other family members and friends, including Gerardo Salazar, Mayra E., Stephanie R., Adriana R., Denise F., and Liz S. Windows to the dining room were located between the front door of the house and the garage. The dining room was on the first floor. Francisco E. heard more than ten gunshots fired. Mayra E. pushed him to the floor.
Adriana R. was in the dining room, sitting next to Salazar, who had accompanied her to the house. She heard about eighteen shots ricocheting off the walls. When she heard the shots, she threw Stephanie R. on the ground. Stephanie R. was 13 or 14-years-old at the time. Adriana R. was hit on the left eye by a foreign object, causing her to bleed. Glass hit the back of Mayra E.’s neck. She was sitting to the left of Salazar.
Once the shots ceased, Adriana R. crawled to the kitchen, then to the living room. Mayra E. crawled to the bathroom. Francisco E. also crawled to the bathroom. After twenty seconds, Francisco E. and Mayra E. returned to the dining room. Francisco E. saw holes in the wall and in the curtain. Salazar was bleeding, face-down on the floor. Salazar died from a gunshot to the head.
Luz E. and her husband, Sergio H., were in a bedroom when she heard about twenty gunshots. Christina E. was in another bedroom with her boyfriend, Daniel D. Four-year-old Aliza V. and 9-month-old Denise R. were in the master bedroom. Each of these bedrooms was on the second floor.
When the shots were fired, Daniel D. looked outside the window and saw a large pickup truck. He saw muzzle flashes from the pickup truck. The truck remained stationary when the shots were fired. Daniel D. saw the shooter in the back of the truck, leaning out and firing the gun. Daniel D. went outside to try to pursue the truck, but it was gone.
After the shooting, Luz E. saw bullet holes in the front of the house. Ricardo R. saw a hole in the garage door. Robert E. saw a hole in a television, located in the back of the garage, and one in a refrigerator.
2. Morning Circle shooting (counts 15–24)
About thirty minutes after the Katrina Place shooting, gunshots woke Vicente V., as he was asleep at his house on Morning Circle in Palmdale. Twelve persons lived there, including members of his immediate family and his brother’s family.
Vicente V.’s house had two floors. On the night of the shooting, he and his wife, Maria, were in their bedroom located immediately on top of the garage conversion. Their 13 and 7–year-old sons, Gerardo and Esteban, slept in a bedroom above their parents’ bedroom. Their older son, Vince V., Jr., was sleeping downstairs. Their 15-year-old daughter, Cassandra, was sleeping in the family room. Their 16-year-old daughter, Patricia, was sleeping in another bedroom. Vicente V.’s brother, Victor, and his wife, Veronica, slept in the master bedroom with their 2-year-old daughter, Naomi, and 4-year-old son, Alexander. Vicente V.’s 11-year-old nephew, Victor, Jr., and 10-year-old niece, Veronica, were sleeping in a bedroom on the second floor, above the garage. After the shooting, Vicente V. went outside and saw six damaged areas. Two holes were above his front door. Another hole was in a stone facade which was to the right of the front door. There were also holes above and through a large window which was above the front door. The side of the garage, near the front entry, sustained a hole or additional damage. There was also damage to a fence post. Bullets struck multiple areas of the interior, including a staircase leading to an upstairs bedroom and the master bedroom.
Vicente V. denied being a member of the Val Verde Park gang. But he stated that Vince V., Jr. was a member.
3. Forensic evidence
Robert Keil, a senior criminalist for the Los Angeles County Sheriff’s Department, examined the house on Katrina Place after the shooting. Keil discovered sixteen bullet holes on the exterior of the house, including one on the garage, one on the frame of the front door, and several around and through the dining room window. One bullet penetrated the garage door and a television inside of the garage before striking the back wall of the garage. Other bullets penetrated the exterior of the house and struck other areas inside, including the interior back wall of the dining room, a kitchen cabinet, and the entry to the kitchen. One bullet had blood, human tissue, and bone residue on it. This bullet went through the dining room window, penetrated Salazar’s head, and struck the corner of the room.
Other bullets penetrated the exterior on the second story of the house, including the exterior wall and the tiled roof of the house. One of these bullets first penetrated two interior walls in an upstairs bedroom and a sliding door, before striking another wall. Walls by the upstairs staircase and other bedrooms were also struck. Other shots penetrated a bedroom wall and struck a hallway wall. Keil also found a bullet fragment in the master bathroom, which traveled across the upstairs hallway and through the master bedroom.
Sixteen spent casings were located on the street outside the Katrina Place house. The casings were for 7.62 by 39-millimeter rounds. Typically, an AK-style rifle uses this size of ammunition. Keil explained that an AK-style rifle is a semiautomatic assault rifle commonly used by military forces. The AK-47 is included in this series of assault rifle. The projectiles from these rifles travel at up to four times the velocity of a handgun, such as those using nine-millimeter ammunition. They have the potential for penetrating substantial barriers, including car doors and exterior walls of residences, as well as multiple additional walls. By contrast, a nine-millimeter bullet would not have the power to penetrate an exterior wall.
Keil determined that by the way the casings were grouped together, eleven shots were fired from one area in front of the Katrina Place house, and five shots were fired from another area about fifteen feet away. The two groupings of casings were not consistent with shooting all sixteen shots in rapid succession. Ten bullet fragments were discovered in the house. Based on the caliber, rifling characteristics, and bullet type, these fragments were consistent with the casings found in the street.
Keil also examined four additional casings and four live rounds which were collected in front of the house on Morning Circle. He saw that they matched the casings from the Katrina Place shooting. They were the same caliber and made by the same manufacturers. Keil also determined the casings were all fired from the same rifle.
4. Statements of Pedro A.
The prosecutor called Pedro A. as a witness. Pedro A. was a member of the Evil Klan gang. His nickname was Flaco. Pedro A. was incarcerated in state prison for a gang-related attempted murder conviction. Pedro A. believed that he would be in protective custody or get killed if he assisted the district attorney’s office or the police, or otherwise acted as a snitch.
Personal privacy interests support not identifying Pedro A. by his full name. (Cal. Rules of Court, rule 8.90, subd. (b)(10).)
Before calling Pedro A. as a witness, the prosecutor and Los Angeles County Sheriff’s Detective Donna Cheek spoke with him. However, during Pedro A.’s testimony, he claimed to not remember or denied making any statements to them. He also claimed to not remember or denied making any statements to Los Angeles County Sheriff’s Detective Howard Cooper. Detective Cheek and Detective Cooper were the investigating officers for the Katrina Place and Morning Circle shootings.
Detective Cheek recounted the statements Pedro A. made before his testimony. During the conversation, she and the prosecutor reviewed Pedro A.’s 2008 statement to Detective Cooper. Detective Cooper’s 2008 interview with Pedro A. was recorded and played for the juries.
Cerda and Johnson were jointly tried, but each had his own jury.
On February 10, 2008, Pedro A. was at a party at a house of a person named Jorge. Pedro A. was with Cerda, Johnson, and their friend, Saul Trujillo. Pedro A. left the party for a short time. When he returned, he learned that Cerda, Johnson, and Trujillo had gone to another party on Katrina Place. Cerda and Trujillo returned and told Pedro A. that 18th Street gang members had beaten up Johnson. When Johnson returned from the Katrina Place party, Pedro A. saw that his lip was bleeding, and he was upset. They made plans to retaliate against the persons who beat up Johnson. They left the party and Cerda obtained an AK-47 from his house. Pedro A. described the AK-47 as a long black rifle with a wooden stock. He confirmed the magazine was a "banana clip." Cerda, Johnson, and Trujillo got into a Ford F-150, driven by a person named Jose Casillas. Cerda was in the front passenger seat. Trujillo was behind him. Johnson was behind the driver. They went to the party where Johnson was beaten up. Pedro A. did not join them. Several minutes later, he heard gunshots.
The reporter’s transcripts refer to this person as "George." However, his name is spelled "Jorge" in the exhibits, including the transcript of the interview with Pedro A. For consistency with the prior opinions, we spell his name "Jorge."
Pedro A. referred to Cerda, Johnson, and Trujillo by their nicknames, which were Snaps, Casper, and Dreamer, respectively.
Jose Casillas was charged as a defendant in this case. He was tried separately from Cerda and Johnson. Pedro A. referred to him by his nickname, Puppet.
A couple of days after the shooting, Pedro A. spoke to Johnson and Cerda. Johnson told him that they drove to the Katrina Place house. They drove around the block once. Johnson was lying down in the truck bed with the rifle. When they stopped in front of the house again, Johnson sat up and fired into the house. Johnson also told Pedro A. that Cerda shot up a house belonging to someone named Tank from the Val Verde Park gang which was "beefing" with their gang.
5. Party at Jorge’s house
Fifteen-year-old Erika V. and her sister, Yasmine, attended the party at Jorge’s house. The Katrina Place house was about a block from Jorge’s house. At about 11:00 p.m. to 12:00 a.m., Casillas drove Erika V. and Yasmine home in a dark green pickup truck. She knew Casillas as "Puppet." At the party, Johnson was introduced to Erika V. as "Casper." As Erika V. was going home, she saw Johnson coming from the direction of the Katrina Place house. He was staggering as if he was drunk.
6. Cerda’s jailhouse phone calls
Cerda made two phone calls while in jail. Both were recorded and played for his jury. The first call was to his parents. His mother stated, "They said they were gonna let you go today." Cerda responded, "No, no, no. I’m not[,] mom. I’m gonna be here for a long time." Cerda then told his father, "Listen to me[,] they’re not gonna release me." Cerda explained, "I’m gonna be in here because I was involved in a murder. My friend shot someone and killed ‘em. And I shot at a house but I didn’t kill nobody, but my friend shot and killed someone. I shot a house but I didn’t kill nobody." In the second call, Cerda spoke to a female named Vanessa and her father, admitting that he was involved in a murder.
7. Johnson’s police interview
Detective Cooper, along with Los Angeles County Sheriff’s Detective Mitch Robison, interviewed Johnson. The interview was recorded and played for Johnson’s jury.
Johnson initially denied involvement in the shootings. Johnson explained that he was at a party and hit up a person and argued with him. Johnson was drunk. Cerda and Trujillo told him to calm down. They told Johnson that they would take care of it. He claimed to not know what Cerda and Trujillo were going to do. Johnson left the party.
Robison acknowledged that Johnson was scared. He encouraged Johnson to "man up." Cooper asked Johnson if he meant to kill somebody or only scare them. Johnson stated that he intended to only fight. Johnson’s friends told him, "We’re going to bust a mission." Johnson responded that he was not going. Johnson continued to deny that he went with them.
The detectives informed Johnson that his "homeboy" told them that he "busted up" the other house. Johnson stated that Cerda obtained a gun and asked him if he wanted to go. Cerda explained to Johnson that he should go with them because he was joining the gang. Johnson admitted to accompanying them. They drove in a black Ford F-150. However, he stated that Cerda was in the bed of the truck and fired shots when they reached the house. He further stated that Cerda also shot at the other house.
Johnson continued to deny shooting at the first house. The detectives continued to tell Johnson that his "homeboys" said that he committed the shooting.
When Robison explained to Johnson the importance of telling the truth, he finally admitted to firing the gun. Johnson stated that he did not mean to do anything wrong because he was drunk. He admitted to shooting at the "18th Street" house. He also confirmed that Cerda shot at the "Val Verde" house. He further stated that he accompanied Cerda to get his gun. He saw Cerda load the gun. Johnson was instructed to start shooting when they stopped driving. Johnson was told that he would have to shoot because he was joining a gang. He admitted again to the shooting and confirmed that he fired approximately fifteen to sixteen times from the bed of the truck.
After Johnson shot at the first house, he switched places with Cerda, who went to the bed of the truck. Cerda then fired shots at the "Val Verde" house.
8. Gang evidence
Los Angeles County Sheriff’s Detective Robert Gillis was assigned to investigate gangs in the Antelope Valley. In Palmdale in 2008, the Locos Marijuanos gang, or LMS, consisted of ten members. During that time, the primary activities of LMS included vandalism, vehicle theft, carrying firearms, and shooting. Gillis opined that in 2008, Johnson and Cerda were LMS gang members, based on their prior admissions to membership and associations with other members. Gillis also spoke to Jose Casillas, who admitted his membership in the LMS gang.
In 2008, a rivalry existed between the LMS gang and a gang called Val Verde Park, or VVP. LMS was allied with another gang called Lancas. Vicente V. was a founding member of the Val Verde Park gang. His son, Vince V., Jr., was also a member. In 2008, Lancas members shot at Val Verde Park members around the corner from the home of Vicente V.
The 18th Street gang is one of the largest Latin gangs in Southern California. There were 18th Street gang members in the Antelope Valley. However, Gillis was not aware of any rivalries between the 18th Street gang and LMS.
Gillis discussed multiple facets of gang culture, including initiation into the gang, loyalty to the gang, and the importance of respect. Gang members were required to back up their fellow gang members.
Gillis discussed the significance of retaliation when a gang member is beaten up by rival gang members. In Gillis’s experience, the beaten gang member would retaliate with greater violence. Failure to retaliate would negatively impact the reputations of the beaten gang member and his or her gang. The gang would appear weak and be subjected to more attacks by the rival gang.
The prosecutor asked Gillis to answer a hypothetical question derived from the evidence of the Katrina Place shooting. Gillis opined that the crime was committed for the benefit of the gang whose members committed the shooting. Gillis reasoned that the retaliatory shooting intimidated and created fear in the community. He explained the significance of using an AK-47 assault rifle. Its sole purpose was to kill. It was capable of penetrating multiple walls. Because of the high-powered capability of the AK-47, the shooting exceeded retaliations that would normally occur. It was retaliation "with an exclamation point on it."
When the prosecutor asked a hypothetical question, which mirrored the shooting of the Morning Circle house, Gillis similarly opined that the crime benefited the gang. He stated the second shooting would intimidate the community. Persons in the community would hear that the perpetrators were willing to commit two shootings against two separate gangs. The second shooting would also show that the gang members did not fear apprehension by law enforcement officers. Gillis explained that they would have boldly committed the second shooting when the entire law enforcement agency would be nearby investigating the first shooting, which had occurred only a short time before.
Gillis stated that it was also common for multiple gang members to participate in drive-by shootings. Each gang member would assume a role, consisting of the driver, the shooter, and lookouts who would alert the others to the presence of law enforcement officers.
Gillis discussed the influence of the Mexican Mafia over Latin street gangs in Southern California. The Mexican Mafia prohibited gang members from shooting at children. It also required gang members to get out of their cars and walk up to their victims before shooting to avoid injuring innocent persons, as could occur in a drive-by shooting. Violating these rules could result in punishment by death from the shooter’s own gang or a rival gang. However, gang members did not always follow these rules. Gillis also clarified that the trend has returned to drive-by shootings.
B. Defense Evidence
Johnson testified on his own behalf. He was 16 years old at the time of the shootings.
On the night of the incidents, Johnson went to two parties. Before arriving at the first party, Johnson used crystal methamphetamine. At the first party, he drank ten to fifteen beers and smoked marijuana. He went to the second party at Katrina Place with Pedro A. and Trujillo. Johnson drank one or two additional beers at the Katrina Place party, but he was already drunk.
At the Katrina Place party, Johnson asked several men, "Where you from?" Several persons surrounded Johnson and he saw punches coming from all directions. He was hit several times and knocked to the ground. He fled the party by jumping over a rear wall. He walked by himself to his house. He stayed at his house the rest of the night. He denied being present for any shooting.
Johnson denied telling Pedro A. that he had been in the bed of a truck. He did not know from whom Pedro A. heard this information. Johnson claimed that after he was taken into custody, a detective named Robert Jones told him to "just let them know what they want to know" and he could go home.
Johnson next spoke with Detective Cooper and other detectives. He denied involvement in the shootings. He told Cooper that two others were involved in the shooting. Johnson stated that Cerda got in the bed of the truck and shot at the house. He also stated that Cerda and Trujillo got in the bed of the truck. Johnson told different stories because he was confused. He ultimately admitted to shooting. Johnson recognized that the detectives did not believe him when he initially denied involvement. Accordingly, he believed that if he told the detectives what they wanted to hear, he could go home.
Johnson testified that he lied to Detective Cooper in three interviews about being in the truck when the shooting occurred. He also testified that he lied about telling Detective Cooper that he drank only two to four beers. Johnson recognized that telling the police that he shot up a house and killed somebody would affect his life.
Johnson admitted that he was previously a member of Locos Marijuanos from 2007 to when he was arrested in 2008. He went by the moniker Casper. He also acknowledged that Trujillo was an LMS member named Dreamer. Johnson had known Cerda for about one year prior to the shootings. He testified that Cerda was not an LMS gang member. Johnson also disputed that LMS was in a rivalry with Val Verde Park.
Johnson confirmed that if a gang member gets beaten up by rival gang members, he should retaliate. If the beaten gang member fails to retaliate, his fellow gang members would beat him up. Failure to retaliate would bring shame to the gang. Johnson testified that although LMS was not in a war against 18th Street, his getting beaten up showed disrespect to him. He was expected to do something about it.
C. Rebuttal evidence
Both juries heard the recorded police interviews with Johnson that were initially played only for his jury. II. Procedure
Cerda’s jury convicted him of first degree murder ( Pen. Code, § 187, subd. (a) ; count 1). Johnson was convicted of second degree murder ( § 187, subd. (a) ; count 1). The juries convicted both Cerda and Johnson of 13 counts of attempted premeditated murder for the Katrina Place incident ( §§ 664, 187, subd. (a) ; counts 2–14) and 10 counts of attempted premeditated murder for the Morning Circle incident ( §§ 664, 187, subd. (a) ; counts 15-24). The gang enhancement was found true as to each count against both Cerda and Johnson. (§ 186.22, subd. (b)(1)(C).)
All further undesignated statutory references are to the Penal Code.
Because murder and attempted premeditated murder are felonies "punishable in state prison for life," the gang penalty provision, under section 186.22, subdivision (b)(5), should have applied, instead of the gang enhancement under subdivision (b)(1)(C). (People v. Lopez (2005) 34 Cal.4th 1002, 1006–1007.)
For counts 1 through 14, Cerda’s jury found that a principal used and discharged a firearm, causing great bodily injury or death. (§ 12022.53, subds. (b), (c), (e).) For counts 15–24, Cerda’s jury found that he personally used and discharged a firearm. (§ 12022.53, subds. (b), (c).)
For counts 1 through 14, Johnson’s jury did not find true the enhancements for personal use of a firearm, personal discharge of a firearm, or personal discharge of a firearm causing death or great bodily. (§ 12022.53, subd. (b), (c), (d).) For counts 15 through 24, Johnson’s jury found that a principal used and discharged a firearm. (§ 12022.53, subds. (b), (c), (e).)
On count 1, the trial court sentenced Cerda to 25 years to life, plus an additional 25 years to life for the firearm enhancement. On counts 2 through 14, the court imposed consecutive life terms with a minimum parole eligibility period of seven years, plus an additional 25 years to life for the firearm enhancement. The total sentence on counts 2 through 14 was 416 years to life. On counts 15 through 24, the trial court increased each of the minimum parole eligibility terms to 15 years pursuant to the gang penalty provision, plus an additional twenty years for the discharge of a firearm enhancement. The trial court also imposed the terms on counts 15 through 24 consecutively. The total term on counts 15 through 24 was 350 years to life. Cerda’s total sentence was 816 years to life.
The court imposed and stayed the terms for the lesser firearm enhancements as to each count. (§ 12022.53, subd. (f).)
The trial court sentenced Johnson to 15 years to life on count 1. On counts 2 through 14, the court imposed consecutive life terms, increasing the minimum parole eligibility term to 15 years, pursuant to the gang penalty provision. The total term on counts 1 through 14 was 210 years to life. On counts 15 through 24, the trial court sentenced Johnson to 200 years to life. For the discharge of a firearm enhancements, the trial court imposed an additional 20 years each to counts 15 through 24. Johnson’s total sentence was 410 years to life.
On counts 15 through 24, the trial court also imposed and stayed the minimum parole eligibility term for the gang penalty provision. (§ 12022.53, subd. (e)(2); People v. Brookfield (2009) 47 Cal.4th 583, 595, 98 Cal.Rptr.3d 535, 213 P.3d 988 ; People v. Gonzalez (2010) 180 Cal.App.4th 1420, 1427, 103 Cal.Rptr.3d 878.) However, the trial court did not account for the minimum parole eligibility term for attempted premeditated murder, which is life with the possibility of parole after serving a term of at least seven years. (§§ 664, subd. (d), 3046, subd. (a)(1).)
On Counts 15 through 24, the trial court imposed the 20 year enhancements for discharge of a firearm and imposed and stayed the lesser firearm use enhancement. (§ 12022.53, subd. (f).)
DISCUSSION
See footnote *, ante .
II. Sufficient evidence to instruct on the kill zone theory
Attempted murder requires "the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." ( People v. Lee (2003) 31 Cal.4th 613, 623, 3 Cal.Rptr.3d 402, 74 P.3d 176.) When a defendant attempts to kill two or more persons by a single act, the element of intent to kill must be examined independently as to each alleged victim. ( People v. Bland (2002) 28 Cal.4th 313, 327–328, 121 Cal.Rptr.2d 546, 48 P.3d 1107 ( Bland ).) Intent to kill cannot transfer from one attempted murder victim to another. ( Id . at pp. 328–329, 121 Cal.Rptr.2d 546, 48 P.3d 1107.)
Although intent to kill cannot transfer among victims, the Supreme Court in Bland provided for concurrent intent to kill to establish attempted murder against each person a defendant tries to kill by his or her single act. ( Bland , supra , 28 Cal.4th at p. 329, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) Concurrent intent would be established when the defendant, while targeting a specific person, tried to kill everyone in the area in which that person was located to ensure his or her death. In doing so, the defendant would specifically intend to kill everyone in that area. ( Ibid . ) The Court labeled this area around the primary target victim the "kill zone." ( Bland , supra , 28 Cal.4th at p. 330, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) This kill zone theory allows for a conviction of attempted murder against any victim who was in the specified area but was not the defendant’s primary target. ( Id . at pp. 329–330, 121 Cal.Rptr.2d 546, 48 P.3d 1107 ; People v. Smith (2005) 37 Cal.4th 733, 745–746, 37 Cal.Rptr.3d 163, 124 P.3d 730.)
The Supreme Court adopted the term "kill zone" from the Maryland case of Ford v. State (Md.Ct.App. 1993) 330 Md. 682, 625 A.2d 984, 1000–1001. (Bland , supra , 28 Cal.4th at p. 329, 121 Cal.Rptr.2d 546, 48 P.3d 1107.)
People v. Canizales , supra , 7 Cal.5th at page 607, 248 Cal.Rptr.3d 370, 442 P.3d 686, limited the application of the kill zone theory. Under Canizales , the kill zone theory may only be applied when: "(1) the circumstances of the defendant’s attack on a primary target, including the type and extent of the force [he or she] used, are such that the only reasonable inference is that [he or she] intended to create a zone of fatal harm ... around the primary target; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of [fatal] harm." ( Ibid . )
Canizales further elaborated that in determining the intent to create a kill zone and the scope of the kill zone, the circumstances of the attack include "the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target." ( Canizales , supra , 7 Cal.5th at p. 607, 248 Cal.Rptr.3d 370, 442 P.3d 686.)
For a jury to be instructed that it may draw an inference, as the instruction on the kill zone theory does, the record must contain evidence that would support the suggested inference, if believed by the jurors. ( Canizales , supra , 7 Cal.5th at p. 609, 248 Cal.Rptr.3d 370, 442 P.3d 686.) As we will discuss, substantial evidence supported Cerda’s and Johnson’s intent to kill everyone within the respective kill zones at the Katrina Place and Morning Circle shootings.
A. Intent to create a kill zone
We begin by assessing the circumstances of each attack. For both the Katrina Place and Morning Circle incidents, the shooters used an AK-47 assault rifle. Criminalist Keil explained that the high caliber ammunition from such an assault rifle travels at up to four times the velocity of handgun ammunition. The AK-47 rounds have the potential for penetrating substantial barriers.
The sixteen shots fired from the assault rifle decimated the house on Katrina Place. All sixteen shots penetrated the exterior walls. Many also penetrated internal walls and fixtures. This was not an indiscriminate shooting. The shots grouped around the locations where the victims were congregating. They focused on the garage and the dining room on the first floor, and the bedrooms on the second floor. The shots killed one person, and debris from the damage also injured two others. The location of the casings in the street indicated that the truck stopped in front of the house, allowing the shooter to fire from a close range. The two groups of casings further suggested to Keil that the shooter fired eleven shots from a stationary position, then turned or moved to another location and fired the remaining five shots. This deliberate positioning of the shooter and placement of shots further support his targeting specific locations of the house where the victims were present.
We reject Cerda’s contention that the use of an AK-47 assault rifle would only signify an intent to kill if the shooter had prior knowledge of the gun’s capabilities and use in a manner to strike targets. As we discuss, the rifle was used to strike targets inside the house. But neither Canizales nor its precursors ever required knowledge of the utilized weapon’s capabilities. On the contrary, Canizales suggested considering, among other factors, only the type of weapon used . (Canizales , supra , 7 Cal.5th at p. 607, 248 Cal.Rptr.3d 370, 442 P.3d 686.) Moreover, both Cerda and Johnson would have witnessed multiple shots fired from the AK-47. After one shot was fired, both could sufficiently appreciate the assault rifle’s capabilities.
Only thirty minutes later, Cerda shot at the Morning Circle house with the same intent to create a kill zone. The group employed the same tactics as those at the Katrina Place house. The truck pulled up in front of the house. Cerda fired shots from a stationary position in the bed of the truck, while Johnson and the others remained in the passenger compartment. Cerda fired close to the front of the house, as the location of the four spent casings and four live rounds indicated.
Most significantly, Cerda fired the same high-velocity ammunition from the same military-style assault rifle, which had been fired only thirty minutes before. Multiple shots again penetrated the exterior. One entered the master bedroom where Vicente V. and his wife were sleeping. Another struck a staircase leading to another bedroom. Other bullets were embedded in the exterior walls. The six damaged areas of the house suggested Cerda fired at least six shots, although only four spent casings were discovered. Notably, there were nine victims in the Morning Circle Place house, five fewer than in the Katrina Place house. If one 7.62 by 30-millimeter round could penetrate multiple barriers, it certainly could have penetrated multiple human beings.
Although Cerda fired fewer shots and did not injure anyone, a determination of the intent to create a kill zone "does not turn on the effectiveness or ineffectiveness of [his] chosen method of attack." ( Canizales , supra , 7 Cal.5th at p. 611, 248 Cal.Rptr.3d 370, 442 P.3d 686.) Moreover, Canizales explained that the number of shots is relevant to the determination of intent to create a kill zone, but it is not dispositive. ( Ibid . )
The facts of both shootings stand in stark contrast to those in Canizales . The shooter in Canizales fired shots at his primary target from 100 to 160 feet away. The shooting occurred at a block party on a wide city street, open and unconfined by any structure. ( Canizales , supra , 7 Cal.5th at p. 610, 248 Cal.Rptr.3d 370, 442 P.3d 686.) Bullets were described as "going everywhere," rather than targeting specific victims. ( Ibid . ) Moreover, the shooter fired lower-powered nine-millimeter rounds from a handgun.
Cerda and Johnson assert that an intent to intimidate, as an alternative to an intent to kill, could reasonably be inferred from the circumstances of the attacks. They highlight testimony by Detective Gillis which recognized that a gang member could commit a shooting with the intent to intimidate without also intending to kill.
Cerda also contends that the prosecutor "conceded the existence of multiple inferences." But the prosecutor did no such thing. Moreover, the prosecutor’s argument is not the evidence we evaluate to determine whether the instruction on the kill zone theory was proper. Canizales evaluated the prosecutor’s closing argument only to determine whether the error in instructing on the kill zone was prejudicial. (Canizales , supra, 7 Cal.5th at pp. 613–614, 248 Cal.Rptr.3d 370, 442 P.3d 686.) There was no error here, as we discuss.
However, Gillis commented on a hypothetical situation where a gang member fired shots into an unoccupied car, rather than an occupied house. Gillis qualified, "In gang life, it can’t be painted so broad. Each case is different." In the situation of an unoccupied car, the shooter could have no intent to kill because there would be no victim to kill. Gillis’s testimony does not suggest that alternative reasonable inferences, including an intent to intimidate, could be drawn from circumstances of the attacks in this case.
Gillis was clear. He testified that the sole purpose for using an AK-47 was to kill. Especially for the Katrina Place incident, the shooting was more than mere retaliation. It was committed "with an exclamation point." The intent to kill was supported by Cerda’s and Johnson’s statements, as recounted by Pedro A. Cerda stated, "We’re going to get them fools, you know. A gun and some other foolio." Johnson demanded, "[T]onight. Fuck that." This exchange represents Cerda’s proposal of killing the 18th Street gang members who beat up Johnson. It also shows Johnson’s intention to retaliate immediately. The only reasonable inference to be drawn from the use of the assault rifle at the Katrina Place incident was the intent to kill everyone occupying the house. We draw the same inference from the Morning Circle shooting, which occurred soon after the Katrina Place shooting.
Both Cerda and Johnson further argue that no primary target existed in each shooting, rendering the kill zone theory inapplicable. We disagree.
Canizales required a primary target for the application of the kill zone theory. ( Canizales , supra , 7 Cal.5th at p. 608, 248 Cal.Rptr.3d 370, 442 P.3d 686.) The kill zone theory addresses whether a defendant who murders or attempts to murder an intended target can be convicted of attempted murder of nontargeted persons. ( Ibid ; People v. Stone (2009) 46 Cal.4th 131, 138, 92 Cal.Rptr.3d 362, 205 P.3d 272.) When the defendant has the intent to kill a particular target, for attempted murder liability under the kill zone theory, the jurors must infer his or her concurrent intent to kill the nontargeted persons. ( Ibid . ) Intent to kill the others could not be concurrent to an intent to kill a primary target if there was no primary target. Vicente V. was the primary target at the Morning Circle house. According to Deputy Gillis, Vicente V. was a founding member of the Val Verde Park gang. His family had been associated with the gang for two generations. Vicente V., as well as Gillis, identified his son, Vince, Jr., as a Val Verde Park gang member. Vince, Jr., was also present at the house at the time of the shooting. Cerda and Johnson were affiliated with LMS, which was the rival gang of Val Verde Park.
At the Katrina Place house, the primary targets were the 18th Street gang members who beat up Johnson earlier at the party. Although these 18th Street gang members were never identified, neither Canizales , nor any other case, required that the primary target be identified by name. Nor is it required that the defendant know the primary target was present at the time of the attack. An intended target is all that is required. Cerda and Johnson sought to retaliate against the 18th Street gang members. According to Detective Gillis, a gang member must retaliate with equal or greater force to protect the dignity of his or her gang. A mistaken belief that the primary targets were present would not make Cerda or Johnson less culpable.
Upon considering the circumstances of the attack, including the power of the assault rifle used, the number and placement of shots, and the position and close range from which the shootings occurred, we conclude the evidence supported Johnson’s and Cerda’s respective intent to create a kill zone in the Katrina Place house and in the Morning Circle house.
B. Scope of the zone
The second prong of the test formulated by Canizales evaluates the scope of the kill zone. Specifically, we must determine whether the non-primary target victims were located within the kill zone for each shooting. ( Canizales , supra , 7 Cal.5th at p. 607, 248 Cal.Rptr.3d 370, 442 P.3d 686.) An area where the victims were subjected to mere risk of lethal harm is insufficient. It must be an area in which the shooter intended to kill everyone. ( Ibid . )
Again, the circumstances of the attack inform our determination. The scope of each kill zone encompassed the entire house in each shooting. We base this conclusion on the use of the high-powered assault rifle, the damage to the interiors of the houses by the penetration of bullets through the exterior walls, the close range from which the shooter fired, and the number and placement of shots. During the brief time of each shooting, the named victims in counts 1 through 14 and 15 through 24 were confined to the Katrina Place house and Morning Circle house, respectively. Accordingly, each victim was located within the respective kill zone for each shooting.
Because the Supreme Court concluded that the evidence was insufficient to support a finding that the defendants intended to create a kill zone, it did not determine the scope of the zone. (Canizales , supra , 7 Cal.5th at p. 611, 248 Cal.Rptr.3d 370, 442 P.3d 686.)
Cerda and Johnson argue that the kill zone theory could not properly apply because the evidence did not reveal whether they knew where each victim was located within each house. Cerda further contends that People v. Adams (2008) 169 Cal.App.4th 1009, 86 Cal.Rptr.3d 915, and People v. Vang (2001) 87 Cal.App.4th 554, 104 Cal.Rptr.2d 704 ( Vang ), should not be cited for the proposition that a shooter may attempt to kill persons even though he or she is unaware of their presence.
We disagree. Vang was cited with approval in Bland , supra , 28 Cal.4th at page 330, 121 Cal.Rptr.2d 546, 48 P.3d 1107, Stone , supra , 46 Cal.4th at page 140, 92 Cal.Rptr.3d 362, 205 P.3d 272, and Canizales , supra , 7 Cal.5th at page 610, 248 Cal.Rptr.3d 370, 442 P.3d 686. Vang concluded that despite each shooter’s inability to see all victims in the two targeted houses, the jury could reasonably infer the intent to kill every person in each house, based on the placement of shots, the number of shots, and the use of high-powered, wall-piercing firearms. ( Vang , supra , 87 Cal.App.4th at p. 564, 104 Cal.Rptr.2d 704.)
Cerda and Johnson try to distinguish Vang . They argue that the primary targets were not visible to the shooters here, as they were in Vang . This distinction is of little consequence. As we have discussed, the physical presence of a primary target is not essential. All that is required is that the shooters intended kill someone. Moreover, at issue in Vang was the sufficiency of evidence to support the attempted murders of the nine non-visible victims.
In Adams , the reviewing court held, "Whether or not the defendant is aware that the attempted murder victims were within the zone of harm is not a defense, as long as the victims were actually within the zone of harm." ( People v. Adams , supra , 169 Cal.App.4th at p. 1023, 86 Cal.Rptr.3d 915.) This holding, along with the holding in Vang , is consistent with Canizales . The second prong of Canizales specifically requires the non-primary target to be located within the kill zone. ( Canizales , supra , at p. 607, 248 Cal.Rptr.3d 370, 442 P.3d 686.)
The visibility of the victims and the shooter’s awareness of their locations are relevant but not dispositive, as they might be in cases where the shooter fires a single shot from a handgun. (See People v. Smith , supra , 37 Cal.4th at p. 748, 37 Cal.Rptr.3d 163, 124 P.3d 730.) The attacks here were of such a magnitude that knowledge of the victims’ specific locations was not necessary. The intent was to kill everyone in each house. Because each attempted murder victim was located inside either the Katrina Place house or the Morning Circle house at the times of the respective shootings, he or she was within a kill zone created by Cerda and Johnson. Thus, substantial evidence supported the second prong, as well as the first prong, of the Canizales test. Accordingly, we conclude the kill zone theory was properly applied.
Because we conclude substantial evidence supported the kill zone theory instruction, we need not reach Cerda’s and Johnson’s argument that instructing on the kill zone theory was prejudicial.
See footnote *, ante .
DISPOSITION
Cerda’s first degree murder conviction is reversed. We remand the matter for the district attorney to decide whether to accept a reduction of this conviction to second degree murder or retry Cerda for first degree murder under theories other than the natural and probable consequences doctrine.
The sentences for both Cerda and Johnson are vacated. We remand for resentencing to allow the trial court to exercise its discretion and determine whether to strike the firearm enhancements under section 12022.53. The trial court is also to afford Johnson an opportunity to make a record of information for the Board of Parole Hearings to fulfill its obligations under sections 3051 and 4801, as required by Franklin , supra , 63 Cal.4th at pages 286–287, 202 Cal.Rptr.3d 496, 370 P.3d 1053. The judgments of conviction are otherwise affirmed as to both Cerda and Johnson.
We concur:
EDMON, P. J.
EGERTON, J.