The opinion
Filed 5/21/21 P. v. Brown CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089252
Plaintiff and Respondent, (Super. Ct. No. 17FE017680)
v.
MARKEES BROWN,
Defendant and Appellant.
This case arises out of a drive-by shooting in a residential neighborhood in north
Sacramento. A jury found defendant Markees Brown guilty of three counts of willful,
deliberate, and premeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a)),1 one
count of discharging a firearm at an inhabited dwelling (§ 246), three counts of assault
with a semiautomatic firearm (§ 245, subd. (b)), three counts of discharging a firearm
1 Undesignated statutory references are to the Penal Code.
1
from a motor vehicle at another person (§ 26100, subd. (c)), and one count of being a
felon in possession of a firearm (§ 29800, subd. (a)(1)). The jury also found true the
firearm enhancement allegations. (§§ 12022.5, subds. (a), (d), 12022.53, subds. (b), (c).)
In a bifurcated proceeding, the trial court found true the allegations that defendant had
served four prior prison terms (§ 667.5, subd. (b)) and had three prior serious felony
convictions (§ 667, subd. (a)) that qualified as strikes under the three strikes law (§§ 667,
subds. (e)(2), 1170.12, subd. (c)(2)). The trial court sentenced him to an aggregate term
of 258 years to life in prison. He timely appealed.
Defendant contends the judgment must be reversed for numerous reasons,
including insufficient evidence, instructional error, prosecutorial misconduct, ineffective
assistance of counsel, sentencing error, and cumulative error. Defendant further
contends, and the People concede, that the four prior prison term enhancements (§ 667.5,
subd. (b)) must be stricken pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.).
Finally, defendant contends that section 3051, subdivision (h) violates equal protection
principles because it excludes otherwise eligible offenders from receiving a youth
offender parole hearing if the offender was sentenced under the three strikes law. We
reverse one of the attempted murder convictions and remand for further proceedings
consistent with this opinion. In all other respects, we affirm the judgment.
FACTUAL BACKGROUND
The drive-by shooting in this case occurred following several altercations
involving two families from the same neighborhood. We do not attempt to recite all the
evidence adduced at trial. Nor do we attempt to resolve the inconsistencies and conflicts
in the evidence. Instead, we summarize the relevant facts in the light most favorable to
the judgment (People v. Maury (2003) 30 Cal.4th 342, 396, 403 [it is the jury’s role to
resolve the inconsistencies and conflicts in the evidence]), and add facts throughout the
Discussion section where necessary to discuss the issues raised on appeal.
2
The Families
In 2017 N.J. (mother) and her boyfriend K.H. (boyfriend) lived in the Strawberry
Manor neighborhood in north Sacramento. Mother had eight children, including S., T.,
and Z. (collectively, Sac. girls or Sac. family, when referring to the entire family).
The family home (hereafter duplex) was a converted duplex with two separate
side-by-side attached garages in the front. From the viewpoint of the street, the garages
are known as the “left garage” and “right garage.” The front door of the duplex, which
opens into the living room, is next to the left garage (i.e., to the left of the left garage).
Directly outside the front door of the duplex is a small porch area and beyond that a lawn.
The driveway and garages are to the right of that lawn area. The street is approximately
25 feet from the garages, which are slightly elevated from the street.
The Sac girls did not get along with a group of teenage girls that lived in their
neighborhood, known as the “Manor Mob girls” or “Manor girls” (collectively, Manor
girls). The Manor girls included defendant’s girlfriend A.B., and her three sisters.
The issues between the two groups of girls (e.g., arguing or “bickering”) began in
or around 2010 when mother’s oldest daughters, S. (then aged 16) and T. (then aged 14),
were in high school. According to T., the issues with the Manor girls “most likely”
started because of a dispute over a guy.
At all relevant times, S. and T. were in their early 20s while Z. was 12 or 13 years
old. The record does not disclose the ages of the Manor girls. Defendant was in his early
20s.
The Altercations Prior to the Shooting
On April 3, 2017, mother, boyfriend, T., and several other members of their
extended family went to the Parlare nightclub in downtown Sacramento. One of the
Manor girls and others associated with the Manor girls also went to Parlare that night. As
the two groups were leaving the club around 2:00 a.m., there was an exchange of words
followed by a fight involving 10 to 15 females.
3
Around 4:00 a.m. that same morning, there was a “big boom” outside the duplex
followed by a female voice saying, “Tell them bitches to come outside. They jump my
mom and I’m gonna MF – fuck they and whoop de whoop de whoop.” When mother and
T. looked outside, they saw several of the Manor girls, their grandmother, and defendant.
The group was yelling, “You bitches come outside.” At one point, a male said, “[F]uck
that, let’s just run up in them bitches’ house[].”
Thereafter, boyfriend went outside with a knife to protect his house. When
boyfriend approached the group and said, “What’s up?,” defendant started laughing and
pointed a black handgun at him, which appeared to be a .40 or .45 caliber gun. In
response, boyfriend raised both his hands and said, “[O]kay[,] I see you.” He then turned
around and went back inside without incident. A bottle of Hennessy was thrown through
the living room window and boyfriend called 911.
Police officers arrived at the duplex around 4:50 a.m. and observed approximately
15 females in the street arguing. One group of females was walking away from a second
group of females that was headed inside the duplex. Because nobody at the duplex
wanted to press charges for the broken window, the officers left the area without further
investigation into the incident.
Around 12 hours later, the Manor girls returned to the duplex accompanied by a
group of approximately 30 people. There were about 25 females and five males,
including defendant. The group threatened to kick down the door if mother did not allow
her daughters and nieces to come outside and fight. Over the course of this incident,
which lasted three to four hours, the group kicked mother’s dog, swore at her 14-year-old
daughter, and threatened to force mother and her family outside. Defendant, who was
holding a gun, demanded that the people inside the duplex come outside but mother did
not allow it.
Boyfriend called 911 twice during this incident. Both calls were recorded and
played for the jury. In the second call, which was placed at 6:41 p.m., boyfriend reported
4
that a 19- or 20-year-old light-skinned black man with dreads was in the front of his
house holding a gun. The group outside the duplex left the area when the police arrived.
Two days later, the Manor girls returned to the duplex and threatened to “run in
the house” and “jump” on mother if she did not allow her daughters to come outside and
fight. The Manor girls were accompanied by at least 40 females and a few males,
including defendant. S., T., and their cousins (10 total) went outside and fought the much
larger group using various weapons. The males, including defendant, encouraged and
made threats but did not join the fight. Defendant promoted the fight by telling the
females on his side to “get[] them bitches.” Mother eventually called 911 and the
fighting stopped when the police arrived.
Following this incident, boyfriend, who regularly hung out in his front yard, saw
defendant drive by the duplex daily in a black Crown Victoria. The two men never
exchanged words. On two occasions, boyfriend saw defendant stop at the white house
indirectly across the street on a corner (hereafter, the white house). According to T., a
man named Dwayne lived at the white house with his girlfriend. Dwayne drove a silver
four-door Mercedes with tinted windows.
The Shooting
Approximately five months after the incidents at the duplex involving the Manor
girls and defendant, there was a drive-by shooting at that location. During the preceding
five-month period, there were no verbal or physical altercations between the Sac. girls
and the Manor girls.
On the day of the shooting, September 11, 2017, there were a number of people at
the duplex, including mother, boyfriend, T., S., Z., and S.’s best friend La.N.
Around 7:15 p.m., mother, boyfriend, T., Z., and La.N. were hanging out in front
of the duplex when a silver Mercedes with tinted windows parked in front of the white
house across the street. At that point, mother went inside the duplex. Thereafter, a light-
skinned black man with dreads and a black-hooded sweatshirt or jacket, later identified as
5
defendant, got out of the front passenger seat of the Mercedes. According to Z., as
defendant was walking up to the front door of the white house, he stared “hard” in the
direction of the duplex, “like he had a problem.” Boyfriend started to feel “kinda . . .
weird” because defendant kept “looking weird and shit at [his] house.” Boyfriend told Z.
to go inside and then went inside and told mother that defendant “looked like he was
tripping.” At the time boyfriend went inside, defendant was getting back into the
Mercedes.
T., who had known defendant from the neighborhood for about seven years, saw
him knock on the front door of the white house and then look in her direction. He
“looked mad” and was “[m]ean-mugging” the group of people in front of the duplex but
did not say anything. Shortly thereafter, T. went inside the house. S. and La.N. did not
go inside with her; they stayed in the driveway near the left garage. At that time, the left
garage door was open, and the right garage door was closed. There were two cars parked
in the driveway, one in front of each garage.2
According to Z., when T. saw defendant, she began speaking in a loud voice so he
could hear her. She was “saying stuff to him[,] like knit-picking [sic] and stuff.” T.
made comments indicating that “she didn’t like him.” Shortly after T. went inside the
duplex, defendant got into the front passenger seat of the Mercedes, leaned forward, and
moved his arms like he was manipulating something. As defendant was doing so, he was
looking at La.N. and S., which gave La.N. the “vibe” that something was going to
happen. After the Mercedes pulled away from the white house, it drove slowly past the
duplex, like the occupants were “look[ing] at something” or “seeing who all was
outside.” At that point, the duplex was on the passenger side of the car. After the car
passed the duplex, it sped off. Because La.N. suspected that “something [was] gonna
2 At trial, La.N. could not recall whether any cars were parked in the driveway of the
duplex but indicated that he believed the driveway was “empty.”
6
happen,” he told S. that they should go inside. Z., who was sitting on the porch, got up
and walked toward the left garage because she was “scared that [she] was gonna get hit.”
The Mercedes made a U-turn and drove back toward the duplex. After the car
passed the duplex a second time, it made another U-turn so that the duplex was on the
passenger side of the car. As the car approached the duplex for a third time, it sped up
and then stopped suddenly in front of the lawn to the left of the driveway. At that
moment, defendant opened the front passenger door, placed one foot on the ground,
leaned out of the car, pointed a black semiautomatic handgun3 “towards” La.N. and S.,
and said, “Where you all from?” two times. In response, La.N. and S., both of whom
were in the driveway near the opening of the left garage, ran toward the left garage.
La.N. heard three or four shots. He dove into a “little pocket” area in the left garage to
avoid the gunshots while S. ducked behind some “other things” in front of him near the
right garage.4
When the shooting started, Z. was “deep” inside the left garage, near the interior
door that led inside the duplex. She immediately turned around and “dropped down.” As
she did so, she saw La.N. and S. ducking and running toward her location. When the
shooting stopped, Z. saw the Mercedes speed away and the front passenger door close.
Immediately following the shooting, S. told T. that the shooter was the “boy that was just
over there.” When T. said, “Markees with the dreads?” S. responded, “[Y]eah.”5
3 The parties stipulated that defendant could not lawfully possess a gun because he had
suffered a felony conviction prior to September 11, 2017.
4 La.N. testified that it was “dumb” for defendant to commit a shooting during the
daytime because he saw defendant’s face before the shots were fired. On cross-
examination, La.N. denied that he told a police officer that he did not look at the
shooter’s face.
5 S. did not testify at trial. Boyfriend testified that he did not want to do so because he
did not want to be labeled a “snitch.”
7
T. called 911. The call, which was placed at 7:20 p.m., was recorded and played
for the jury. During the call, T. said that a man named “Markees” had just shot at her
house (i.e., the duplex) from the front passenger seat of a gray Mercedes with tinted
windows. She explained that Markees was the boyfriend of a girl her family did not get
along with. She further explained that she had seen Markees get into the Mercedes and
drive by the duplex shortly before the shooting, and that she was inside the duplex during
the shooting but a male witness had seen “exactly . . . what happened.” When asked, T.
indicated that she did not see the driver of the Mercedes.
The Investigation
Police officers arrived at the duplex around 7:30 p.m. The officers found four
.380 caliber shell casings in the middle of the street in front of the duplex, indicating that
the shooter had used a semiautomatic handgun. There was a bullet hole in the top right
corner of the right garage door and a bullet hole in the back interior wall of the left garage
about six feet off the ground and 13 feet away from the interior door leading inside the
duplex. No other bullet holes were found.
T. told the responding officers that defendant was the shooter and went by the
nickname “Kees Mob.” When defendant’s Facebook profile was pulled-up on a cell
phone, T. identified him as the shooter. She also identified defendant from a photograph
on a police computer. When La.N. was shown photographs of defendant posted on
Facebook, he told the responding officers that defendant was the shooter.
Two days after the shooting, boyfriend identified defendant from a photographic
lineup as the person he saw at the white house shortly before the shooting. When asked,
boyfriend explained that he was familiar with defendant because defendant had pulled a
gun on him “a few months ago.”
The next day, La.N. identified defendant as the shooter from a photographic
lineup, indicating that he was “positive” defendant was the shooter. When La.N. was
interviewed by a detective, he initially said that he did not believe defendant was aiming
8
at him and S. based on his understanding that a bullet had struck the upper portion of the
right garage. La.N. opined that defendant must have been aiming at the right garage
“because the bullets went where [S.] was,” at “the top right garage.” When La.N. made
his initial statement about the shooting, he was only aware of the bullet hole in the right
garage; he did not know about the bullet hole in the interior wall of the left garage until
the detective told him about it. Later in the interview, La.N. claimed that defendant was
in fact aiming at him. He told the detective, “[T]o be honest with you, [the gun] was
pointed right [at] me.” La.N. explained that, after the gunshots were fired, he “checked
himself for holes” because the gun was aimed at him and he saw “orange flashes coming
from the gun.” La.N. said that he saw “two to three shots” before he “turned and ran
inside the garage.”6
Around a week after the shooting, defendant, who had shoulder-length dreads at
the time, was interviewed by a detective. Defendant gave the detective his phone number
but claimed that he did not have his cell phone with him on the day of the shooting
because his girlfriend had broken it. However, several days later, and after he was
confronted with evidence that his girlfriend had sent him text messages on September 8
and 12, 2017, defendant told the detective that his cell phone was working and that he
lost it sometime after September 12, 2017.
When Dwayne’s cell phone was searched, it listed defendant’s cell phone number
as a contact under “Kees,” which was added on September 4, 2017.7 A review of
Facebook records revealed that defendant went by the nickname “Kees Mob.” Dwayne’s
6 At trial, La.N. testified that defendant pointed the gun “directly [his] way.” He further
testified that he saw one gunshot, and that S. was near the area where the bullet struck the
right garage.
7 At the time of the search, Dwayne was on probation. In fall 2017 he drove a silver
four-door Mercedes with tinted windows. Although not entirely clear, it appears that
Dwayne [] is the same “Dwayne” that T. said lived at the white house.
9
cell phone also contained a photograph of him and two other men standing in front of a
silver Mercedes with tinted windows on September 14, 2017. In this photograph,
Dwayne has a black and silver handgun in his pocket.
Less than two weeks after the shooting, Z. was interviewed by a detective. The
interview was recorded and played for the jury. During the interview, Z. indicated that,
prior to the shooting, she saw a black man with dreads and a black pullover hoodie get
out of a gray Mercedes parked across the street. She said that she was not paying
attention to the man’s face and only noticed his dreads and chest, but noted that the man
was not the driver of the Mercedes.8 She explained that she was inside the left garage
talking to S. and La.N. when the gunshots were fired. According to Z., S. and La.N. were
near her, either inside the garage or just outside the garage.
A review of phone records revealed that defendant’s cell phone was located near
the duplex at the time of the shooting and then near his residence shortly thereafter.
Jail Phone Call and Search of Jail Cell
Following his arrest, defendant made a jail phone call on October 20, 2017, which
was recorded and played for the jury. During the call, defendant asked a female to take
down the phone numbers for “[T.],” “[S.],” and “[La.N.].” He then instructed her to give
the phone numbers to “Precious” and to tell Precious to give the numbers to “Rob.” He
further instructed her to “tell [Rob] to do what he was supposed to . . . do with them. . . .
Tell him to try to figure it out.” Thereafter, a search of defendant’s jail cell revealed a
8 At trial, Z. identified defendant as the shooter for the first time, explaining that she was
familiar with him because she had seen him driving around the neighborhood. According
to Z., defendant was the man with dreads that got out of the driver’s seat of the Mercedes.
On cross-examination, Z. denied telling a detective that she had only seen defendant’s
dreads and chest and not his face. On redirect, she explained that she had lied to the
detective about not seeing defendant’s face because she did not want to be labeled a
“snitch.” Z. claimed that everything else she told the detective was true.
10
police report containing the contact information for T., including a redacted but still
visible phone number.
On February 20, 2018, defendant’s jail cell was searched again. During that
search, officers found a letter addressed to “[A.B.]” from defendant. In the letter,
defendant told A.B. that he loved her and promised that he was going to stop acting up.
He wrote: “[T]he[y] keep gett[i]n[g] me for dumb shit,” and that, “after this Ima be str8.”
He went on to write: “I hope everything gose good on my next court date[.] [T]he[y] can
drop my shit if toya and the nigga play Dumb[.] I hope cuddie really talk to dat bitch
man. . . . [T]hey gone drop this shit[,] they don’t even goto say shit[,] they can show up
but ain’t gotta say shit . . . .”
DISCUSSION
I
Sufficiency of the Evidence
A. Standard of Review
Defendant claims insufficient evidence supports his conviction as the shooter as
well as his intent to kill.
“ ‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’
[Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v.
Edwards (2013) 57 Cal.4th 658, 715.) “ ‘We do not reweigh evidence or reevaluate a
witness’s credibility.’ ” (People v. Houston (2012) 54 Cal.4th 1186, 1215.) “[A]
11
reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.]
Resolution of conflicts and inconsistencies in the testimony is the exclusive province of
the trier of fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young); see People v.
Maury, supra, 30 Cal.4th at p. 403 [“Conflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends”]; People v. Alexander (2010) 49
Cal.4th 846, 918 (Alexander) [it is for jury to weigh the impact of a witness’s bias when
determining which version of events to credit].)
“A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon
no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s
verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
B. Identity
The defense theory at trial was mistaken identity. In making his insufficiency
argument, defendant acknowledges that La.N. testified that he saw the shooting and
identified defendant as the shooter. Defendant, however, insists that this evidence is
insufficient to establish his identity as the shooter because La.N.’s identification was “at
best equivocal” and “inherently suspect.” We disagree.
“[U]nless the testimony is physically impossible or inherently improbable,
testimony of a single witness is sufficient to support a conviction.” (Young, supra, 34
Cal.4th at p. 1181; see People v. Boyer (2006) 38 Cal.4th 412, 480 [a single eyewitness’s
identification of a suspect as the perpetrator of a crime is sufficient to sustain a
conviction].) Here, in addition to La.N.’s testimony that he saw defendant shoot at close
range from the front passenger seat of a silver Mercedes using a black handgun, there was
evidence that La.N. identified defendant as the shooter from photographs shortly after the
shooting and from a photographic lineup three days later. Defendant challenges La.N.’s
credibility, but we do not reweigh evidence or reevaluate a witness’s credibility.
12
(Alexander, supra, 49 Cal.4th at p. 917.) Defense counsel had the opportunity to cross-
examine La.N. about all aspects of his identification. The jury, therefore, was able to
evaluate the credibility of La.N.’s identification and the weight his testimony deserved.
(See People v. Boyer, supra, 38 Cal.4th at p. 481.) Moreover, independent evidence
supported La.N.’s identification of defendant as the shooter. There was evidence that T.
and boyfriend were familiar with defendant, and both testified that he was the person
riding in the front passenger seat of the silver Mercedes shortly before the shooting.
Further, there was evidence that, minutes before the shooting, defendant was the person
“mean-mugging” and staring “hard” at the group of people in front of the duplex, “like he
had a problem.” There was also evidence that defendant was aligned with the Manor
girls, had a contentious relationship with the Sac. family (including pointing a black
handgun at boyfriend five months earlier), and was verbally taunted by T. minutes before
the shooting. The evidence also showed that defendant’s cell phone was near the duplex
at the time of the shooting. Finally, the letter addressed to “[A.B.]” found in defendant’s
jail cell following the shooting showed a consciousness of guilt.
On this record, there was ample evidence to support the jury’s conclusion that
defendant was the shooter. (See People v. Mohamed (2011) 201 Cal.App.4th 515, 521
[“[t]o entitle a reviewing court to set aside a jury’s finding of guilt the evidence of
identity must be so weak as to constitute practically no evidence at all’ ”]; see also In re
Gustavo M. (1989) 214 Cal.App.3d 1485, 1497 [when the circumstances of an eyewitness
identification and its weight are explored at trial and the trier of fact believes the
eyewitness identification, the trier of fact’s determination is binding on the reviewing
court].)
C. Attempted Murder Convictions
The jury found defendant guilty on counts one (S.), two (La.N.), and three (Z.),
each of which charged him with willful, deliberate, and premeditated attempted murder.
(§§ 664, 187, subd. (a).) On appeal, defendant contends reversal is required because
13
insufficient evidence established he possessed the requisite specific intent to kill. We
disagree.
Attempted murder requires “ ‘the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.’ ” (People v. Smith
(2005) 37 Cal.4th 733, 739 (Smith).) “Intent to unlawfully kill and express malice are, in
essence, ‘one and the same.’ ” (Ibid.) “Express malice requires a showing that the
assailant ‘ “ ‘either desire[s] the result [i.e., death] or know[s], to a substantial certainty,
that the result will occur.’ [Citation.]” ’ ” (Ibid.) “[T]he crime of attempted murder is
not divided into degrees.” (Id. at p. 740) The prosecution may, as it did here, “seek a
jury finding that an attempted murder was ‘willful, deliberate, and premediated’ for
purposes of sentence enhancement.” (Ibid.)
“ ‘To be guilty of attempted murder, the defendant must intend to kill the alleged
victim, not someone else.’ [Citation.] Whether the defendant acted with specific intent
to kill ‘must be judged separately as to each alleged victim.’ ” (Smith, supra, 37 Cal.4th
at p. 740.)
“[T]he mental state required to convict a defendant of attempted murder, may in
many cases be inferred from the defendant’s acts and the circumstances of the crime.
[Citation.] ‘There is rarely direct evidence of a defendant’s intent. Such intent must
usually be derived from all the circumstances of the attempt, including the defendant’s
actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range
“in a manner that could have inflicted a mortal wound had the bullet been on target is
sufficient to support an inference of intent to kill . . . .” [Citation.]’ ” (Smith, supra, 37
Cal.4th at p. 741.)
The specific intent to kill may also be inferred under the concurrent intent (or “kill
zone”) theory. (People v. Canizales (2019) 7 Cal.5th 591, 602 (Canizales); People v.
Bland (2002) 28 Cal.4th 313, 331, fn. 6.) Under the kill zone theory, “a shooter may be
convicted of multiple counts of attempted murder . . . where the evidence establishes that
14
the shooter used lethal force designed and intended to kill everyone in an area around the
targeted victim (i.e., the ‘kill zone’) as the means of accomplishing the killing of that
victim.” (Smith, supra, 37 Cal.4th at pp. 745-746.) “ ‘This concurrent intent [i.e., “kill
zone”] theory is not a legal doctrine requiring special jury instructions . . . . Rather, it is
simply a reasonable inference the jury may draw in a given case: a primary intent to kill
a specific target does not rule out a concurrent intent to kill others.’ ” (Id. at p. 746.)
“When the kill zone theory is used to support an inference that the defendant concurrently
intended to kill a nontargeted victim, however, evidence of a primary target is required.”
(Canizales, at p. 608.)
During closing argument, which occurred after the trial court instructed the jury on
attempted murder, the prosecutor argued that defendant intended to kill S. and La.N.
specifically by firing four bullets at them at close range. The prosecutor also relied on a
kill zone theory as an alternative ground to prove defendant’s intent to kill S. and La.N.,
and as the sole ground to prove defendant’s intent to kill Z.
“[T]he kill zone theory for establishing the specific intent to kill required for
conviction of attempted murder may properly be applied only when a jury concludes: (1)
the circumstances of the defendant’s attack on a primary target, including the type and
extent of force the defendant used, are such that the only reasonable inference is that the
defendant intended to create a zone of fatal harm--that is, an area in which the defendant
intended to kill everyone present to ensure the primary target’s death--around the primary
target and (2) the alleged attempted murder victim who was not the primary target was
located within that zone of harm. Taken together, such evidence will support a finding
that the defendant harbored the requisite specific intent to kill both the primary target and
everyone within the zone of fatal harm. [¶] 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
15
the proximity of the alleged victims to the primary target. Evidence that a defendant who
intends to kill a primary target acted with only conscious disregard of the risk of serious
injury or death for those around a primary target does not satisfy the kill zone theory.”
(Canizales, supra, 7 Cal.5th at p. 607.) “[T]he kill zone theory does not apply where ‘the
defendant merely subjected persons near the primary target to lethal risk. Rather, in a kill
zone case, the defendant has a primary target and reasons [that] he cannot miss that
intended target if he kills everyone in the area in which the target is located. In the
absence of such evidence, the kill zone instruction should not be given.’ ” (Ibid.)
In Canizales, gang members Bolden and Pride were at a neighborhood block party
when Canizales and his companion (Windfield), from a rival gang, drove up and
Windfield opened fire. (Canizales, supra, 7 Cal.5th at pp. 598-599.) Both Bolden and
Pride took off running, Bolden running straight up the street and Pride zigzagging back
and forth across the street and hiding behind a bus on the same side of the street where
Leica Cooksey and some of her friends were listening to music and dancing. Bolden
recalled that bullets were “ ‘going everywhere.’ ” Bolden and Pride were not hit, but
Cooksey was struck in the abdomen a later died. Five shots had been fired from between
100 and 160 feet away from Bolden, Pride, and Cooksey. (Id. at p. 600.)
Our Supreme Court reversed Canizales’s conviction for the attempted murder of
Bolden because there was insufficient evidence to support the kill zone theory.
(Canizales, supra, 7 Cal.5th at p. 609.) The court concluded that there was insufficient
evidence “to support a reasonable inference that defendants intended to create a zone of
fatal harm around a primary target [i.e. Pride].” (Id. at p. 610.) In support of this
conclusion, the court reasoned: “[T]he evidence at trial showed that Windfield attacked
his target by firing five bullets from a nine-millimeter handgun at a distance of either 100
or 160 feet away. Moreover, the attack occurred at a block party on a wide city street,
not in an alleyway, cul-de-sac, or some other area or structure from which victims would
have limited means of escape. As Bolden described it, the bullets were ‘going
16
everywhere’ and ‘tingling through the gates’ as he and Pride ran down the street away
from the gunfire after the first shot was fired. [¶] Even accepting as more credible the
prosecution’s evidence that Windfield was 100 feet rather than 160 feet away from Pride
and Bolden when he first fired in their direction, we conclude that a fact finder could not
reasonably infer defendants intended to create a zone of fatal harm around Pride based on
the record in this case. The evidence presented here showed that from a substantial
distance Windfield 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.)
Canizales cited and relied on the court’s prior decision in Bland, which “expressly
embraced the concept of a concurrent intent to kill as a permissible theory for
establishing the specific intent requirement of attempted murder.” (Canizales, supra, 7
Cal.5th at p. 602.) “Bland applied what is now commonly referred to as the ‘kill zone’
theory to uphold the attempted murder convictions in that case. The record there showed
that the defendant and a fellow gang member approached a car in which a rival gang
member was sitting in the driver’s seat and opened fire with a .38-caliber handgun,
shooting numerous rounds both into the vehicle and at the vehicle as it drove away. The
driver was killed and his two passengers, who were not gang members, were wounded.
[Citation.] We concluded that the evidence ‘virtually compelled’ a finding that even if
the defendant primarily intended to kill the rival gang member, he also, concurrently,
intended to kill the passengers in the car, or, at the least, intended to create a zone of fatal
harm.” (Id. at p. 603.)
Viewing the evidence in the light most favorable to the judgment, we find
sufficient evidence from which a jury could have reasonably concluded beyond a
reasonable doubt that defendant acted with the requisite specific intent to kill all three
named victims. The circumstances of this case are more analogous to the facts in Bland
than those in Canizales. Here, defendant fired four bullets in the direction of La.N., S.,
17
and Z. at close range. He initially aimed the gun directly toward La.N. and S., while near
the driveway of the duplex. La.N. and S. were standing next to each other near the
opening of the left garage and Z. was inside the left garage. In response to the gunshots,
Z. dropped to the ground while La.N. and S. ran toward the left garage and ducked.
La.N. dove into the left garage to avoid the gunshots while S. ducked behind items in
front of La.N. by the right garage. One of the bullets struck the right garage in the area
near where S. had been, and another bullet struck the back interior wall of the left garage
in the area where Z. was located.
On this record, a rational jury could have inferred that defendant acted with the
intent to kill La.N. and S. specifically. (Smith, supra, 37 Cal.4th at p. 742 [The “act of
purposefully firing a lethal weapon at another human being at close range, without legal
excuse, generally gives rise to an inference that the shooter acted with express malice”].)
A rational jury could also have inferred that defendant had the specific intent to kill Z.
under a concurrent intent (i.e., kill zone) theory because she was located in the zone of
fatal harm created by defendant when he fired multiple rounds at his primary targets,
La.N. and S.9 We recognize that the Canizales court held that “the kill zone theory does
not apply where ‘the defendant merely subjected persons near the primary target to lethal
risk.’ ” (Canizales, supra, 7 Cal.5th at p. 607.) But the type and extent of the force used,
the distance between defendant and the victims, the proximity of Z. to La.N. and S., and
the confined space in which the attack occurred, support the conclusion that defendant
intended to kill everyone within the immediate area of La.N. and S., including Z. There
is no requirement that a defendant be aware of who is in the zone of fatal harm to support
a conviction for attempted murder based on a kill zone theory. (See People v. Vang
9 For the reasons we discuss, assuming that La.N. alone was the primary target, the
evidence presented was susceptible of the inference that defendant intended to kill La.N.
by killing everyone in his vicinity, including S. and Z.
18
(2001) 87 Cal.App.4th 554, 564 [rejecting defendants’ argument that they could not be
convicted of attempted murder as to someone they did not know was in the residence
when they opened fire at the residence]; see also People v. Adams (2008) 169
Cal.App.4th 1009, 1023 [“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
actually were within the zone of harm.”].) Finally, we note that, in addition to the
circumstances of the shooting, there was evidence of motive--defendant’s contentious
relationship with the Sac. family and T. taunting him minutes before the shooting--that
supported a finding of defendant’s intent to kill La.N. and S. by killing everyone in their
vicinity. (See Smith, supra, 37 Cal.4th at p. 751 [evidence of motive can support intent to
kill].)
Defendant points to various purported inconsistencies or conflicts in the evidence
to show that there was insufficient evidence of his intent to kill. However, in making this
argument, defendant misapprehends our role on appeal. His argument amounts to a
request that we reweigh the evidence, which is not the function of an appellate court.
(Young, supra, 34 Cal.4th at p. 1181.) As we have explained, there was sufficient
evidence from which a reasonable jury could have concluded that defendant possessed
the requisite specific intent to be convicted of the attempted murder counts.10
D. Discharging a Firearm from a Motor Vehicle at Another Person
The jury found defendant guilty on counts eight (S.), nine (La.N.), and eleven (Z.),
which charged him with discharging a firearm from a motor vehicle at another person
10 We recognize that a trial court should only instruct a jury on the kill zone “in those
cases where the court concludes there is sufficient evidence to support a jury
determination that the only reasonable inference from the circumstances of the offense is
that a defendant intended to kill everyone in the zone of fatal harm.” (Canizales, supra, 7
Cal.5th at p. 608.) However, we need only decide whether sufficient evidence supports
that determination by the jury, not whether another reasonable inference was unavailable
as a matter of law.
19
other than an occupant of a motor vehicle. (§ 26100, subd. (c).) On appeal, defendant
contends reversal is required because his convictions on these counts are not supported
by substantial evidence. He argues the prosecution failed to present sufficient evidence
to establish that he was “inside” or “within” a motor vehicle when the gunshots were
fired, and/or that he shot “at” any of the alleged victims. We disagree.
1. Generally Applicable Legal Principles
Section 26100, subdivision (c) provides: “Any person who willfully and
maliciously discharges a firearm from a motor vehicle at another person other than an
occupant of a motor vehicle is guilty of a felony punishable by imprisonment in state
prison for three, five, or seven years.” The elements of the offense are “ ‘(1) acting
willfully and maliciously, and (2) shooting from a motor vehicle at a person outside a
motor vehicle.’ ” (People v. Rodarte (2014) 223 Cal.App.4th 1158, 1167.) “ ‘Conviction
under a statute proscribing conduct done “willfully and maliciously” does not require
proof of a specific intent. [Citation.]’ [Citations.] ‘ “When the definition of a crime
consists of only the description of a particular act, without reference to intent to do a
further act or achieve a future consequence, we ask whether the defendant intended to do
the proscribed act. This intent is deemed to be a general criminal intent . . . . The only
intent required for a general intent offense is the purpose or willingness to do the act or
omission. [Citation.]” ’ ” (Id. at p. 1168.)
“Cases construing section 246, which prohibits ‘maliciously and willfully
discharg[ing] a firearm at an inhabited dwelling house’ or other specified targets, are
instructive” in determining the intent requirement for shooting from a motor vehicle at
another person. (People v. Hernandez (2010) 181 Cal.App.4th 1494, 1500.) Under
section 246, criminal liability “ ‘is not limited to the act of shooting directly “at” an
inhabited or occupied target. Rather, the act of shooting “at” a proscribed target is also
committed when the defendant shoots in such close proximity to the target that he shows
a conscious indifference to the probable consequence that one or more bullets will strike
20
the target or persons in or around it. The defendant’s conscious indifference to the
probability that a shooting will achieve a particular result is inferred from the nature and
circumstances of his act.’ ” (Id. at p. 1501.)
2. Analysis
We reject defendant’s initial contention that the evidence was insufficient to
establish he discharged a firearm from a motor vehicle. According to defendant, criminal
liability does not attach under section 26100, subdivision (c) unless the shooter was
“inside” or “within” the motor vehicle at the time of the shooting. As we shall explain,
defendant’s claim fails because the statute cannot properly be interpreted in the manner
he suggests.
We exercise de novo review in addressing this issue of statutory interpretation.
(People v. Brewer (2011) 192 Cal.App.4th 457, 461.) “ ‘The fundamental purpose of
statutory construction is to ascertain the intent of the lawmakers so as to effectuate the
purpose of the law.’ [Citation.] In approaching this task, we ‘must first look at the plain
and commonsense meaning of the statute because it is generally the most reliable
indicator of legislative intent and purpose.’ ” (People v. Skiles (2011) 51 Cal.4th 1178,
1185; People v. Flores (2003) 30 Cal.4th 1059, 1063 [we give the words of the statute
their usual and ordinary meaning].) “When the language of a statute is clear, we need go
no further.” (Flores, at p. 1063.) Where the language of the statute is potentially
ambiguous, “ ‘[i]t is appropriate to consider evidence of the intent of the enacting body in
addition to the words of the measure, and to examine the history and background of the
provision, in an attempt to ascertain the most reasonable interpretation.’ [Citation.] We
may also consider extrinsic aids such as the ostensible objects to be achieved, the evils to
be remedied, and public policy.’ ” (People v. Manzo (2012) 53 Cal.4th 880, 886.)
“ ‘[W]e may not add to or alter [the words of the statute] to accomplish a purpose that
does not appear on the face of the statute or from its legislative history.’ ” (Trope v. Katz
(1995) 11 Cal.4th 274, 280.)
21
As noted, section 26100, subdivision (c) is violated when a person “discharges a
firearm from a motor vehicle at another person other than an occupant of a motor
vehicle . . . .” (§ 26100, subd. (c), italics added.) The word “from” is a preposition
commonly “used to indicate the source or beginning of something in terms of location,
situation, or time.” (Encarta World English Dict. (1st ed. 1999) p. 716, col. 1.) It is
“used as a function word to indicate the starting or focal point of an activity.” (Merriam-
Webster’s Collegiate Dict. (11th ed. 2003) p. 502, col. 2-3.) Thus, the usual and ordinary
meaning of the word “from” does not support defendant’s position. The flaw in
defendant’s argument is that he construes the word “from” to mean that a shooter’s entire
body, or at least a large portion thereof, must be “inside” or “within” a motor vehicle at
the time of the shooting. The plain text of the statute, however, does not impose such a
requirement and it would be improper for us to add one. Moreover, adopting defendant’s
construction of the statute would contravene the legislative intent of the statute--the
deterrence of drive-by shootings. (See In re Ramon A. (1995) 40 Cal.App.4th 935, 940;
see People v. Gonzales (2015) 232 Cal.App.4th 1449, 1456.) Defendant has not cited
any case law, legislative history, or public policy that persuades us that we should adopt
his position.
Defendant’s reliance on People v. Jones (2010) 187 Cal.App.4th 266, is
misplaced. In that case, the appellate court held that “a person standing outside a vehicle
who, while holding a gun, reaches into the vehicle through an open window or door and
fires the gun, may be convicted of shooting ‘at’ an occupied vehicle” in violation of
section 246. (Id. at p. 268.) In so holding, the court reasoned, “One would not normally
consider a person to be ‘within’ a vehicle if only her hand, or an object that she is holding
in her hand, has broken the plane of the vehicle through an open window or door. Rather,
in order to be considered to be ‘within’ a vehicle, a person’s entire body, or a large
portion of the person’s body, would have to be inside the vehicle. It follows that if the
person is holding a gun and fires the gun after having broken the plane of the vehicle with
22
either the gun or her hand and the gun, that person cannot be deemed to have discharged
the gun from ‘within’ the vehicle for purposes of section 246.” (Id. at pp. 273-274.)
Jones is distinguishable and does not support the conclusion that defendant did not
discharge a firearm from a motor vehicle under the circumstances of this case. Moreover,
even if we assume, as defendant suggests, that criminal liability does not attach under
section 26100, subdivision (c) unless a large portion of a defendant’s body is inside or
within a vehicle, we would find that such a requirement was satisfied here. The evidence
presented at trial showed that defendant opened the door of the car, placed one foot on
the ground, leaned out of the car, and then fired multiple gunshots.
We also reject defendant’s contention that the evidence was insufficient to support
the jury’s conclusion that he shot “at” S., La.N., and Z. As we have recounted in detail
above, the evidence adduced at trial showed that defendant, from close range, fired four
bullets from a .380 caliber handgun in the direction of S., La.N., and Z. While there was
evidence that, at the time of the shooting, Z. was deep in the garage near the interior door
that led inside the duplex, defendant’s act of firing bullets in her direction while in close
proximity to her was sufficient to establish that he shot “at” her for purposes of section
26100, subdivision (c). (See People v. Hernandez, supra, 181 Cal.App.4th at p. 1501.)
II
Alleged Instructional Errors
A. Kill Zone Theory
Defendant contends that his attempted murder convictions must be reversed
because the trial court prejudicially erred in instructing the jury on the kill zone theory.
He argues that the standard instruction regarding attempted murder (CALCRIM No. 600)
misinstructs on the kill zone theory; he adds that the modifications the trial court made to
the standard instruction designating the targeted and nontargeted victims were erroneous.
We agree with the latter contention but conclude that the error was only prejudicial as to
defendant’s conviction for the attempted murder of Z.
23
1. Validity of CALCRIM No. 600
Defendant argues that CALCRIM No. 600 erroneously instructs on the kill zone
theory because it does not require the jury to find that the prosecution proved the
defendant intended to kill the targeted victim(s). He contends that CALCRIM No. 600
improperly instructs the jury that proof of intent is sufficient if the prosecution proves the
defendant “intended to kill everyone within the kill zone”; the instruction does not
require the jury to make any other or further finding of an intent to kill. We disagree.
“The independent or de novo standard of review is applicable in assessing whether
instructions correctly state the law . . . .” (People v. Posey (2004) 32 Cal.4th 193, 218.)
As relevant here, the version of CALCRIM No. 600 in effect at the time of trial provided
as follows: “A person may intend to kill a specific victim or victims and at the same time
intend to kill everyone in a particular zone of harm or ‘kill zone.’ In order to convict the
defendant of the attempted murder of ____ <insert name or description of victim charged
in attempted murder count[s] on concurrent-intent theory >, the People must prove that
the defendant not only intended to kill ____ < insert name of primary target alleged > but
also either intended to kill ____ <insert name or description of victim charged in
attempted murder count[s] on concurrent-intent theory >, or intended to kill everyone
within the kill zone. If you have a reasonable doubt whether the defendant intended to
kill ____ <insert name or description of victim charged in attempted murder count[s] on
concurrent-intent theory > or intended to kill ____ <insert name or description of
primary target alleged > by killing everyone in the kill zone, then you must find the
defendant not guilty of the attempted murder of ____ <insert name or description of
victim charged in attempted murder count[s] on concurrent-intent theory >.” (See
CALCRIM former No. 600 (2013).)
The standard kill zone instruction given in this case was similar to the one given in
Canizales, supra, 7 Cal.5th at page 601, footnote 3, which was decided more than six
months after the jury returned its verdicts in this case. Because the Canizales court
24
concluded that the instruction should not have been given on the facts presented, it did
not reach the contention that the instruction violated due process principles by leading the
jurors to believe they could convict defendants of the attempted murder of one victim
without finding the requisite intent to kill. (Id. at pp. 597-598.) The Canizales court,
however, indicated that the standard instruction “should be revised to better describe the
contours and limits of the kill zone theory . . . .” (Id. at p. 609.) The court did not
propose language revising the instruction, nor did it indicate it was error to give the
standard instruction.
Defendant cites no authority supporting the conclusion that the standard kill zone
instruction at issue in this case is invalid. The standard instruction tells the jury that, in
order to find defendant guilty of attempted murder of a nontargeted victim under a
concurrent intent (kill zone) theory, it must find that the defendant not only intended to
kill a primary target but also either intended to kill the nontargeted victim, or intended to
kill everyone within the kill zone. (See CALCRIM former No. 600 (2013).) Thus,
contrary to defendant’s contention, the instruction does in fact require the jury to find that
the prosecution proved that the defendant intended to kill a targeted victim in order to
find the defendant guilty of the attempted murder of a nontargeted victim under a
concurrent intent (kill zone) theory.
2. Trial Court’s Modified Version of CALCRIM No. 600
As relevant here, the trial court instructed the jury with CALCRIM No. 600,
modified to designate the target and non-target victims as follows: “To prove that the
defendant is guilty of attempted murder, the People must prove that one, the defendant
took at least one direct but ineffective step toward killing another person: [¶] And two,
the defendant intended to kill that person. The court further instructed, “A person may
intend to kill a specific victim or victims and at the same time intend to kill everyone in a
particular zone of harm or kill zone. [¶] In order to convict the defendant of the
attempted murder of [S.], Count 1, [La.N.], Count 2, or [Z.], Count 3, the People must
25
prove that the defendant not only intended to kill [S.], [La.N.], or [Z.], but also either
intended to kill one of the other two named victims in Counts 1, 2, or 3 or intended to kill
everyone within the kill zone. [¶] If you have a reasonable doubt whether the defendant
intended to kill [S.], [La.N.] or [Z.] or intended to kill [S.], [La.N.], or [Z.] by killing
everyone in the kill zone, then you must find the defendant not guilty of the attempted
murder of [S.], [La.N.], or [Z.].”
The kill zone instruction was drafted by the trial court. The prosecutor requested
the court give the instruction as drafted, and defense counsel indicated that he was “okay
with the language” of the instruction. There was no discussion about primary target(s) or
nontargeted victim(s), and the prosecutor did not indicate that he was relying on the kill
zone theory to support any specific count of attempted murder.
During closing argument, which occurred after the trial court instructed the jury,
the prosecutor argued that defendant intended to kill La.N. and S. specifically because he
fired four bullets at them at close range. In support of his argument, the prosecutor noted
that La.N. testified that defendant aimed the gun “right at [him]” and S. was standing near
him. The prosecutor also noted that one of the bullet holes was in the area where La.N.
and S. were standing when the shooting started, and another bullet hole was in the area
where S. fled in response to the shooting. To satisfy the element of intent, the prosecutor
also relied on a kill zone theory. The prosecutor told the jury that the kill zone theory
applied if the defendant intended to kill one or more of the “named victims” and at the
same time intended to kill everyone within the zone of harm around the named victims.
According to the prosecutor, all of the people in and around the garage at the time of the
shooting, La.N., S., and Z., were in the kill zone, “where the bullets were flying.” He
told the jury, “So if you find . . . that not only was [defendant] trying to kill one of these
individuals but everyone that was in that zone, he is liable for attempted murder of all
three victims assuming you find all three victims in that kill zone.” The record reflects
that the prosecutor relied on the kill zone theory as the sole means of establishing the
26
intent element as to Z. and as an alternative ground to satisfying the intent element as to
S. and La.N.
The designation of targeted and nontargeted victims was error. Based on the
evidence adduced at trial, La.N. and S. were the primary targets and Z. was the
nontargeted victim. But the instruction identified all three alleged victims as potential
nontargeted victims and potential primary targets, and then told the jury that defendant
could not be convicted of attempting to murder each unless the People proved that he not
only intended to kill one of them, but also either intended to kill one of the other two
alleged victims, or intended to kill everyone within the kill zone. As defendant points
out, the instruction allowed the jury to return a guilty verdict for all three victims after
finding that he intended to kill only two of them. In other words, the jury could have
returned guilty verdicts on the attempted murder counts without finding that defendant
possessed the requisite specific intent to kill each victim.
In view of the instructional error, we must examine the entire cause and determine
whether it is clear beyond a reasonable doubt that the error did not affect the jury’s
verdict. (People v. Aledamat (2019) 8 Cal.5th 1, 13; Canizales, supra, 7 Cal.5th at p.
615.) We conclude that reversal is only required as to defendant’s conviction for the
attempted murder of Z.
As set forth in detail ante, the evidence that defendant specifically intended to kill
La.N. and S. was compelling. He fired multiple shots from close range at both of them;
he had a contentious relationship with the Sac. family and had brandished firearms during
disputes with them before, and he had been taunted by a family member immediately
before the shooting. To establish intent to kill La.N. and S., the prosecutor primarily
relied on the theory that defendant specifically intended to kill them because he fired
multiple rounds at them from close range. We are convinced that the erroneous kill zone
instruction was harmless beyond a reasonable doubt as to La.N. and S.
27
However, we reach a different conclusion with respect to Z. There was little
evidence outside application of the kill zone theory of defendant’s intent to kill Z.
Although Z. had been outside talking to the others prior to the shooting, she was deep
inside the garage near the interior door that led inside the duplex when defendant opened
fire. There was no evidence that defendant aimed his gun at her during the shooting, or
even saw her at that time. It is not clear beyond a reasonable doubt that a reasonable jury
would conclude defendant intended to kill Z.
The erroneous kill zone instruction and the prosecutor’s closing argument further
support a finding of prejudice. As we have explained, the prosecutor relied solely on the
concurrent intent (kill zone) theory to establish the intent element. He argued that Z. was
in the kill zone, which he defined as “in and around the garage,” because she was in the
area where the “bullets were flying.” In making this argument, the prosecutor said: “An
example of shooting into a crowd at a stadium. Someone goes to a football stadium.
There is a big crowd of people and I take a gun and I shoot it at somebody. I . . . not only
intend to kill one but at the same time I intend to kill everyone in that zone. That’s . . . a
zone of danger or kill zone.” This was not an accurate statement of the law; instead the
Canizales court found that a similar definition of the kill zone theory “was significantly
broader than a proper understanding of the theory permits,” and therefore “had the
potential to mislead the jury to believe that the mere presence of a purported victim in an
area in which he or she could be fatally shot is sufficient for attempted murder liability
under the kill zone theory. So misled, the jury might well have found factual support for
what was effectively an ‘implied malice’ theory of attempted murder without detecting
the legal error.” (Canizales, supra, 7 Cal.5th at p. 614; see People v. Medina (2019) 33
Cal.App.5th 146, 155 [holding that allowing the kill zone instruction based on an asserted
natural and probable consequence that anyone within a zone of harm could die “replaces
the specific intent/express malice required for an attempted murder conviction with
28
conscious disregard for life/implied malice, which Bland makes clear cannot support an
attempted murder conviction”].)
As the Canizales court noted, the jury’s questions during deliberations can be
instructive on the issue of prejudice. (Canizales, supra, 7 Cal.5th at p. 617.) During
deliberations here, the jury requested a readback of the portion of La.N.’s testimony
related to what occurred “at the time of the shooting.” Shortly after the readback, the
jurors asked whether they needed to come to an agreement on the attempted murder count
involving Z. and what to do if they could not do so.
Finally, while the jury’s findings on sentencing enhancement allegations can be
relevant to the prejudice analysis (Canizales, supra, 7 Cal.5th at p. 618), the jury’s true
findings as to the allegation that defendant acted willfully, deliberately, and with
premeditation in attempting to murder Z. does not show an absence of prejudice here. As
the Canizales court explained, “the true findings regarding the allegation that [defendant]
acted with deliberation and premeditation in attempting to murder [the alleged victim] do
not affect our [prejudice] determination. . . . [T]he kill zone theory permits the jury to
infer that the defendant harbored the requisite specific intent to kill the primary target and
everyone within the zone of fatal harm. Thus, the jury would have found a specific intent
to kill were it to have relied solely on the kill zone theory of attempted murder liability.”
(Ibid.)
We cannot conclude that it is clear beyond a reasonable doubt the instructional
error did not affect the verdict. Accordingly, we will reverse the attempted murder
conviction regarding Z. Because we concluded ante that the evidence was sufficient to
support a conviction for attempted murder of Z. based on the kill zone theory, we remand
for possible retrial on that count. (See People v. Eroshevich (2014) 60 Cal.4th 583, 591
[retrial after reversal permitted except when evidence was insufficient].)
29
B. Attempted Voluntary Manslaughter
Defendant contends the trial court prejudicially erred by failing to instruct the jury
sua sponte on the lesser included offense of attempted voluntary manslaughter based on
heat of passion as a result of provocation. He argues there was sufficient evidence from
which a jury could have reasonably concluded he committed this offense. We disagree.
1. Applicable Legal Principles
“[A] trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence. [Citation.] It is error for a trial court not to
instruct on a lesser included offense when the evidence raises a question whether all of
the elements of the charged offense were present, and the question is substantial enough
to merit consideration by the jury.” (People v. Booker (2011) 51 Cal.4th 141, 181.)
However, “ ‘[a]n instruction on a lesser included offense must be given only if there is
substantial evidence from which a jury could reasonably conclude that the defendant
committed the lesser, uncharged offense, but not the greater, charged offense.’ ”
(People v. Nelson (2016) 1 Cal.5th 513, 538 (Nelson).) “Substantial evidence is evidence
from which a jury could conclude beyond a reasonable doubt that the lesser offense was
committed.” (People v. Simon (2016) 1 Cal.5th 98, 132.) “The ‘substantial evidence
requirement is not satisfied by “ ‘any evidence . . . no matter how weak’ ” ’ ” (Nelson,
supra, 1 Cal.5th at p. 538), and “[s]peculative, minimal, or insubstantial evidence is
insufficient to require an instruction on a lesser included offense” (People v. Simon,
supra, 1 Cal.5th at p. 132). We independently review whether the trial court improperly
failed to instruct on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90,
113.) We review the evidentiary support for a lesser included offense instruction in the
light most favorable to the defendant. (People v. Wright (2015) 242 Cal.App.4th 1461,
1483.)
“Murder is the unlawful killing of a human being . . . with malice aforethought.”
(§ 187, subd. (a).) “Manslaughter is the unlawful killing of a human being without
30
malice.” (§ 192, subd. (a).) “Manslaughter is a lesser included offense of murder, and a
defendant who commits an intentional and unlawful killing but who lacks malice is guilty
of voluntary manslaughter. Heat of passion is one of the mental states that precludes the
formation of malice and reduces an unlawful killing from murder to manslaughter.”
(Nelson, supra, 1 Cal.5th at p. 538.) Just as voluntary manslaughter is a lesser included
offense of murder, so too is attempted voluntary manslaughter a lesser included offense
of attempted murder. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137;
People v. Gutierrez (2003) 112 Cal.App.4th 704, 708-709; People v. Van Ronk (1985)
171 Cal.App.3d 818, 824-825.) The crime of attempted voluntary manslaughter requires
a specific intent to kill a human being and at least one direct but ineffective step toward
killing the person. (People v. Montes (2003) 112 Cal.App.4th 1543, 1549-1550;
CALCRIM No. 603.)
A heat of passion theory has both objective and subjective components. (People v.
Manriquez (2005) 37 Cal.4th 547, 584.) To satisfy the objective component, the
defendant’s heat of passion must be due to sufficient provocation. (People v. Moye
(2009) 47 Cal.4th 537, 549 (Moye).) The provocative conduct must have been
sufficiently provocative to cause an ordinary person of average disposition to act rashly
or without due deliberation and reflection. (Id. at pp. 550.) “ ‘ “[N]o specific type of
provocation [is] required,” ’ ” and “the passion aroused need not be anger or rage, but can
be any ‘ “ ‘[v]iolent, intense, high-wrought or enthusiastic emotion’ ” ’ [citations] other
than revenge [citation].” (People v. Breverman (1998) 19 Cal.4th 142, 163.)
To satisfy the subjective component, the defendant must “have killed [or
attempted to kill] while under ‘the actual influence of a strong passion’ induced by such
provocation. [Citation.] ‘Heat of passion arises when “at the time of the killing [or
attempted killing], the reason of the [defendant] was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person of average disposition to
31
act rashly and without deliberation and reflection, and from such passion rather than from
judgment.” [Citations.]’ ” (Moye, supra, 47 Cal.4th at p. 550.)
2. Analysis
We find no instructional error. Even viewing the evidence in the light most
favorable to defendant, there was insufficient evidence to support heat of passion.
As for the objective component, the evidence adduced at trial reflected a
contentious relationship with the Sac. family and verbal taunting prior to the shooting,
but these circumstances are insufficient to permit a jury to reasonably conclude that a
person of average disposition would become so inflamed as to lose reason and judgment.
(See People v. Enraca (2012) 53 Cal.4th 735, 759 [“we have rejected arguments that
insults . . . would induce sufficient provocation in an ordinary person to merit an
instruction on voluntary manslaughter”]; People v. Manriquez, supra, 37 Cal.4th at p.
586 [calling the defendant “a ‘mother fucker’ ” and taunting him by “repeatedly asserting
that if defendant had a weapon, he should take it out and use it” “plainly were insufficient
to cause an average person to become so inflamed as to lose reason and judgment”];
People v. Najera (2006) 138 Cal.App.4th 212, 216, 226 & fn. 2 [victim’s name calling,
including calling the defendant a “faggot,” and pushing the defendant to the ground were
not sufficient to satisfy objective component of heat-of-passions manslaughter].)
Likewise, the evidence presented was insufficient to establish the subjective
component. Defendant did not testify at trial, and no evidence was presented
demonstrating that the shooting occurred while he was under the actual influence of a
strong passion induced by adequate provocation. (Moye, supra, 47 Cal.4th at p. 550.)
Defendant’s state of mind was never at issue or argued by the defense. As we have
noted, the defense theory was mistaken identity. The critical issue at trial was the
identity of the shooter. Accordingly, the subjective component was not satisfied. “ ‘A
trial court need not . . . instruct on lesser included offenses when the evidence shows that
the defendant is either guilty of the crime charged or not guilty of any crime (for
32
example, when the only issue at trial is the defendant’s identity as the perpetrator).
Because in such a case “there is no evidence that the offense was less than that charged”
[citation], the jury need not be instructed on any lesser included offense.’ ” (People v.
Gutierrez (2009) 45 Cal.4th 789, 825-826.)11
C. Discharging a Firearm from a Motor Vehicle at Another Person
As previously indicated, the jury found defendant guilty of discharging a firearm
from a motor vehicle at all three charged victims. (§ 26100, subd. (c).) Defendant
contends the trial court prejudicially erred by failing to instruct the jury sua sponte on the
lesser included offense of willfully discharging a firearm from a motor vehicle (§ 26100,
subd. (d)). He argues that there was evidence from which a jury could have reasonably
concluded that he committed this offense. The People agree that section 26100,
subdivision (d) is a lesser included offense of section 26100, subdivision (c), but argue
that reversal is not required because the record does not contain substantial evidence that
defendant was guilty of the lesser offense but not the greater offense, and that, in any
event, defendant suffered no prejudice.
We agree with the parties that discharging a firearm from a motor vehicle is a
lesser included offense of discharging a firearm from a motor vehicle at another person,
because the greater offense cannot be committed without also necessarily committing the
lesser.12 (See People v. Ramirez (2009) 45 Cal.4th 980, 985.) However, any prejudice
11 Because we have rejected defendant’s claim of instructional error on the merits, we
need not and do not address defendant’s contention regarding the doctrine of invited
error.
12 Section 26100, subdivision (c) provides: “Any person who willfully and maliciously
discharges a firearm from a motor vehicle at another person other than an occupant of a
motor vehicle is guilty of a felony . . . .” Subdivision (d) of the same statute provides,
“[A]ny person who willfully and maliciously discharges a firearm from a motor vehicle is
guilty of a public offense . . . .” (§ 26100, subd. (d).)
33
from the failure to instruct on a lesser included offense may be eliminated where, as here,
the jury necessarily decided the factual questions posed by the omitted instructions
adversely to the defendant under properly given instructions. (People v. Gonzalez (2018)
5 Cal.5th 186, 191.) In this case, the jury found defendant guilty of assault with a
semiautomatic firearm (§ 245, subd. (b)) as to all three victims; these findings render the
alleged instructional error harmless by resolving factual issues against the defendant. In
finding defendant guilty of these crimes under the circumstances of this case, the jury
necessarily determined that defendant fired gunshots at the victims.13 There was no
evidence of any shots fired other than those from the car, which the jury found to be fired
at the victims by finding defendant assaulted the victims with a firearm.
D. Instruction on Witness Identification
Defendant contends the trial court prejudicially erred by improperly instructing the
jury, pursuant to CALCRIM No. 315, that it could consider witness certainty when
assessing identification evidence. He argues that: “In light of an established body of
scientific evidence, it is clear that CALCRIM No. 315 is erroneous because it ratifies the
common misperception that an eyewitness’s certainty regarding his or her identification
correlates with accuracy.” We disagree.
As an initial matter, we agree with the People that defendant has forfeited his
claim. Defendant concedes that he did not object to CALCRIM No. 315 or request that it
be modified. In People v. Sánchez (2016) 63 Cal.4th 411, which involved CALCRIM
No. 315’s predecessor, CALJIC No. 2.92, our Supreme Court concluded that the
defendant forfeited a similar claim by failing to request modification of the pattern
13 The trial court instructed the jury with CALCRIM No. 875. As relevant here, that
instruction stated: “To prove that the defendant is guilty of [assault with a firearm], the
People must prove that: [¶] 1. The defendant did an act with a firearm that by its nature
would directly and probably result in the application of force to a person; [¶] 2. The
defendant did that act willfully.”
34
instruction. (Id. at p. 461 [“If defendant had wanted the court to modify the instruction,
he should have requested it. The trial court has no sua sponte duty to do so.”]; see People
v. Rodriguez (2019) 40 Cal.App.5th 194, 199 [claim challenging validity of CALCRIM
No. 315 forfeited for failure to object].)
In any event, the claim lacks merit. As noted, we review de novo whether an
instruction correctly states the law. (People v. Posey, supra, 32 Cal.4th at p. 218.) In
Sánchez, the court found no error in the trial court instructing the jury that it could
consider “ ‘the extent to which the witness is either certain or uncertain of the
identification’ ” when assessing the accuracy of an eyewitness identification. (People v.
Sánchez, supra, 63 Cal.4th at p. 461.) In so finding, the court explained: “Studies
concluding there is, at best, a weak correlation between witness certainty and accuracy
are nothing new. . . . In People v. Wright (1988) 45 Cal.3d 1126, 1141, we held ‘that a
proper instruction on eyewitness identification factors should focus the jury’s attention on
facts relevant to its determination of the existence of reasonable doubt regarding
identification, by listing, in a neutral manner, the relevant factors supported by the
evidence.’ We specifically approved CALJIC No. 2.92, including its certainty factor.
[Citation.] We have since reiterated the propriety of including this factor.” (Id. at p.
462.) As with CALJIC No. 2.92, CALCRIM No. 315 lists the certainty factor in a
“neutral” manner and does “not suggest that certainty equals accuracy.” (Sánchez, at p.
462; see Rodriguez, supra, 40 Cal.App.5th at p. 200 [trial court did not err in instructing
the jury on the certainty factor in CALCRIM No. 315].) Thus, because the challenged
portion of CALCRIM No. 315 is a correct statement of the law, there was no
instructional error.
We recognize that the Supreme Court has granted review in People v. Lemcke
(review granted Oct. 10, 2018, S250108), to consider whether “instructing a jury with
CALCRIM No. 315 that an eyewitness’s level of certainty can be considered when
evaluating the reliability of the identification violate[s] a defendant’s due process rights?”
35
However, Sánchez remains good law, which we are bound to follow. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
E. Instruction on April 2017 Evidence
Defendant contends the trial court prejudicially erred in failing to instruct the jury
sua sponte on the limited admissibility of the evidence regarding his conduct in
connection with the April 2017 incidents at the duplex, including the incident where he
pointed a gun at boyfriend, which was admitted as relevant to his motive and the
witnesses’ ability to identify him as the shooter due to their prior contact with him. In
support of his position, defendant argues that this case is an extraordinary case in which
the trial court had a duty to give a limiting instruction, such as the one contained in
CALCRIM No. 375 (Evidence of Uncharged Offense to Prove Identity, Intent, Common
Plan, etc.), since the prior acts evidence was a dominant part of the case against him and
was highly prejudicial and minimally relevant. We disagree.
First, the evidence was not admitted as “uncharged offense” evidence, subject to
section 1101, subdivision (a)’s prohibition of propensity or character evidence and
section 1101, subdivision (b)’s exceptions thereto. Nor did the People seek admission on
that basis. The analysis was the relevance of defendant’s ongoing conduct with the Sac.
family members in April 2017 to his later charged actions in shooting at them. The trial
court found the conduct relevant to defendant’s motive as well as the witnesses’ ability to
identify him and that the probative value of that evidence outweighed any prejudice from
its introduction. Thus, although it is true that the trial court referenced motive and
identity when speaking to the relevance of the April 2017 evidence, it did not base its
decision on an exception to a rule limiting admission.
“[A]lthough a court should give a limiting instruction on request, it has no sua
sponte duty to give one.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1051; People v.
Collie (1981) 30 Cal.3d 43, 63-64 [no sua sponte duty to give limiting instruction on
evidence of past criminal conduct].) While the general rule does not require the court sua
36
sponte to give a limiting instruction, there is an exception for “an occasional
extraordinary case in which unprotested evidence of past offenses is a dominant part of
the evidence against the accused, and is both highly prejudicial and minimally relevant to
any legitimate purpose. In such a setting, the evidence might be so obviously important
to the case that the sua sponte instruction would be needed to protect the defendant from
his counsel’s inadvertence.” (Collie, at p. 64.)
On this record, we cannot conclude that the evidence at issue here was a dominant
part of the evidence against defendant and both highly prejudicial and minimally relevant
to any relevant purpose. Here, the dominant part of the evidence against defendant was
the testimony and other evidence related to the events that occurred on the night of the
shooting, and the evidence supporting the identification of defendant as the shooter
following the shooting. The evidence of the prior incidents at the duplex was highly
relevant to show why defendant did what he did on the day of the shooting, and how the
witnesses were able to recognize and identify him that day due to these previous
interactions, but it certainly was not a central part of the proof of his actions on the night
of the shooting. Given the evidence of the charged crimes, the additional evidence at
issue was not particularly prejudicial and was relatively brief. Accordingly, we conclude
the trial court did not have a sua sponte duty to give a limiting instruction.
III
Prosecutorial Misconduct
Defendant contends reversal is required because the prosecutor committed
prejudicial prosecutorial misconduct by soliciting gang evidence in violation of a court
order. We disagree.
A. Additional Background
During a pretrial hearing, the trial court indicated that it did not anticipate that the
parties would present any gang-related evidence at trial. Thereafter, the prosecutor stated
that while defendant was a validated member of the Strawberry Manors street gang and
37
Dwayne was a validated member of the 4th Avenue Bloods, he did not intend on eliciting
any “explicit gang evidence” and would instruct his witnesses not to mention the word
“gang.” The prosecutor noted that he intended to introduce some photographs of
defendant which depicted him throwing gang signs but assured the trial court that he
would not elicit any testimony as to what defendant was doing with his hands in those
photographs. The trial court directed the prosecutor to advise his witnesses that there is a
court order prohibiting them from making any gang references during their testimony.
On appeal, defendant contends the prosecutor violated the trial court’s order on
three occasions. The first instance of alleged misconduct occurred when the prosecutor
was questioning a detective about certain Facebook messages involving Dwayne (also
known as “Ibm DAS”) and someone with the username “Murdagang Bossup.” The
relevant exchange is as follows:
“Q. Gonna show you 114. This is another thread from Ibm with murder da gang
bapso (phonetic)?
“A. Yes.
“Q. Direct your attention to -- to down here, this message from Ibm sent on
January 1st 2018.
“The body states who GT 380 shells?
“Is that what it states?
“A. Yes.
“Q. And what does that mean to you?
“A. Who got 380 shells as in who has .380 caliber shells.
“[Q]. Are you familiar with what shell casing were recovered in this case?
“A. Yeah. .380 caliber.”
The second alleged instance of misconduct occurred shortly thereafter during the
following exchange with the same detective about a Facebook message “thread between
Kees Mob [i.e. defendant] and Ibm”:
38
“Q. So this is the same thread that we saw on [Dwayne’s] phone, this one just
happens to be from the search warrant through Kees Mob?
“A. Correct.
“Q. So quickly we’ll go over it. Showing you page four. [¶] And again, we just
see the history dating back of Ibm DAS 9/4/17. And this is [when] Ibm added Kees Mob
on Facebook messenger?
“A. Yes.
“Q. And I just want to make you two people or page two. [¶] First of all, does
this appear to be the same -- remember when we were on Ibm DAS, we saw a Facebook
post with a picture that didn’t come through?
“A. Correct.
“Q. Does this appear to be the same version but the picture went through?
“A. Yes.
“Q. And it’s a phone that says tag someone who never switched up and then has
two emojis?
“A. Correct.
“Q. What does that mean to you?
“A. It’s basically saying in the gang world switched up, converting to the other
side. Says tag somebody, give somebody props for not switching up.
“Q. So it’s just on being --
“A. For being loyal to your gang and no.
“Q. Okay. What’s the -- emoji with the smiley?
“A. Speculating.
“Q. Got it. I don’t want . . . you [to] speculate. [¶] And then just the front is just
the beginning of the conversation, right?
“A. Appears so, yes.”
39
The third instance of alleged misconduct occurred when the prosecutor was
questioning a Sacramento County Sheriff’s Deputy. The challenged exchange is as
follows:
“Q. Good afternoon, Deputy.
“A. Good afternoon.
“Q. Where are you currently employed?
“A. The Sacramento County Sheriff’s Department.
“Q. In what position?
“A. Work in the main jail, gang intelligence unit.
“Q. So it’s intel, right?
“A. Correct.
“Q. You do intel on the entire jail?
“A. Correct.”
The deputy went on to testify that he monitored the jail’s mail and phone system
and explained how the voice recognition system worked.
B. Applicable Legal Principles
“It is misconduct for a prosecutor to violate a court ruling by eliciting or
attempting to elicit inadmissible evidence in violation of a court order. [Citation.]”
(People v. Crew (2003) 31 Cal.4th 822, 839.) If the prosecutor asks a question that is
likely to elicit a reference to inadmissible evidence, the question may constitute
“misconduct even if the prosecutor did not intend to elicit such a reference.” (People v.
Leonard (2007) 40 Cal.4th 1370, 1405.) Therefore, “[a] prosecutor has the duty to guard
against statements by his witnesses containing inadmissible evidence. [Citations.] If the
prosecutor believes a witness may give an inadmissible answer during his examination,
he must warn the witness to refrain from making such a statement.” (People v. Warren
(1988) 45 Cal.3d 471, 481-482.)
40
“Under California law, to establish reversible prosecutorial misconduct a
defendant must show that the prosecutor used ‘ “deceptive or reprehensible methods” ’
and that it is reasonably probable that, without such misconduct, an outcome more
favorable to the defendant would have resulted. [Citation.]” (People v. Caro (2019) 7
Cal.5th 463, 510.) A prosecutor’s misconduct violates the federal Constitution if the
behavior is so egregious that it infects the trial with such unfairness as to make the
conviction a denial of due process. (People v. Redd (2010) 48 Cal.4th 691, 731.) “To
preserve a claim of prosecutorial misconduct for appeal, a defendant must object and
request an admonition. [Citations.] An exception exists where the objection and request
for admonition would have been ‘futile or ineffective.’ ” (Caro, at p. 510.)
C. Analysis
As an initial matter, we agree with the People that defendant has forfeited his
misconduct claims. Defendant concedes that he did not object to the challenged conduct
as prosecutorial misconduct or request an admonition, and he does not argue that an
objection or request for an admonition would have been futile. But even if we were to
address the merits, we would find no prejudicial misconduct. The record does not reflect
that the prosecutor made a deliberate effort to inject prohibited gang evidence into this
case. The prosecutor did not ask any witness a question that called for a response directly
indicating that defendant was in a gang or was affiliated with a gang. The brief and
oblique gang-related references at trial suggesting defendant was affiliated with a gang or
associated with people in a gang were insufficient to infect the trial with unfairness
(People v. Caro, supra, 7 Cal.5th at p. 510), and the prosecutor’s conduct did not amount
to the “use of ‘deceptive or reprehensible methods’ ” to attempt to persuade the jury
(People v. Riggs (2008) 44 Cal.4th 248, 298). In view of the compelling evidence of
defendant’s guilt (as discussed ante), the challenged gang-related testimony did not
prejudice him or deny him a fair trial.
41
IV
Senate Bill No. 136
Defendant contends, and the People concede, that the four one-year prior prison
term enhancements (§ 667.5, subd. (b)) imposed by the trial court must be stricken under
Senate Bill No. 136. We agree.
At the time defendant was sentenced in March 2019, section 667.5, subdivision (b)
required trial courts to impose a one-year sentence enhancement for each true finding on
an allegation that the defendant had served a separate prior prison term, unless the
defendant had remained free of both felony convictions and prison or jail custody during
a period of five years since the prior prison term. (Former § 667.5, subd. (b).) While this
appeal was pending, Senate Bill No. 136 went into effect on January 1, 2020. (Stats
2019, ch. 590, § 1.) Senate Bill No. 136 amended section 667.5, subdivision (b) by
eliminating the one-year prior prison term enhancement, unless the prior prison term was
for a sexually violent offense, as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code.
It is undisputed that defendant’s four prior prison terms for burglary do not qualify
as enhancements under the amended version of section 667.5 subdivision (b). Thus,
because defendant’s judgment is not yet final, he is entitled to the ameliorative benefit of
the change in law. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342 [Sen. Bill No.
136 applies retroactively to defendants whose convictions were not final at the time the
law became effective].) Accordingly, on remand the trial court is directed to strike the
enhancements before resentencing defendant.
V
Alleged Sentencing Error
Defendant contends the 258 years to life sentence imposed by the trial court must
be reversed because it constitutes cruel and unusual punishment in violation of the Eighth
42
Amendment to the United States Constitution.14 According to defendant, his sentence is
excessive and serves no valid Legislative purpose. We disagree.
As an initial matter, we agree with the People that defendant has forfeited his
claim because, as defendant concedes, he did not raise it in the trial court. (People v.
Baker (2018) 20 Cal.App.5th 711, 720; People v. Speight (2014) 227 Cal.App.4th 1229,
1247-1248.) In any event, as we explain below, defendant’s claim is without merit.
“[I]t is now firmly established that ‘[t]he concept of proportionality is central to
the Eighth Amendment,’ and that ‘[e]mbodied in the Constitution’s ban on cruel and
unusual punishments is the “precept of justice that punishment for crime should be
graduated and proportioned to [the] offense.” [Citation.]’ ” (In re Coley (2012)
55 Cal.4th 524, 538, quoting Graham v. Florida (2010) 560 U.S. 48, 59.) The Eighth
Amendment’s proportionality principle is narrow in the context of prison terms for adult
offenders. (In re Bolton (2019) 40 Cal.App.5th 611, 622, citing Ewing v. California
(2003) 538 U.S. 11, 20 (Ewing).) “It ‘ “does not require strict proportionality between
crime and sentence,” ’ but prohibits ‘ “extreme sentences that are ‘grossly
disproportionate’ to the crime.” [Citation.]’ ” (In re Bolton, at p. 622.) In determining
whether a sentence for a term of years is grossly disproportionate for a particular
defendant’s crime, “ ‘[a] court must begin by comparing the gravity of the offense and
severity of the sentence. [Citation.] “[I]n the rare case in which [this] threshold
comparison . . . leads to an inference of gross disproportionality” the court should then
compare the defendant’s sentence with the sentences received by other offenders in the
same jurisdiction and with the sentences imposed for the same crime in other
jurisdictions. [Citation.] If this comparative analysis “validate[s] an initial judgment that
14 Because defendant does not raise a contention under the California Constitution’s
prohibition against cruel and unusual punishment, we limit our analysis to the Eighth
Amendment question.
43
[the] sentence is grossly disproportionate,” the sentence is cruel and unusual.’ [Citation.]”
(In re Coley, at p. 542, quoting Graham, at p. 60.) “Reviewing courts must ‘ “grant
substantial deference to the broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes.” ’ ” (People v. Edwards
(2019) 34 Cal.App.5th 183, 190-191, quoting Harmelin v. Michigan (1991) 501 U.S. 957,
999 (conc. opn. of Kennedy, J.) & Solem v. Helm (1983) 463 U.S. 277, 290.) “Outside
the context of capital punishment, successful challenges to the proportionality of
particular sentences have been exceedingly rare.” (Rummel v. Estelle (1980) 445 U.S.
263, 272.)
As defendant acknowledges, his current offenses are serious. They arise out of a
drive-by shooting involving multiple victims. In arguing that his sentence violates the
Eight Amendment’s prohibition against cruel and unusual punishment, defendant fails to
recognize that he is not subject to a lengthy sentence merely based on his current offenses
but also because he is a recidivist with three strike priors. “ ‘ “Recidivism in the
commission of multiple felonies poses a manifest danger to society[,] justifying the
imposition of longer sentences for subsequent offenses. [Citations.]” [Citation.]’ ”
(People v. Mantanez (2002) 98 Cal.App.4th 354, 366.) “Recidivism has long been
recognized as a legitimate basis for increased punishment.” (Ewing, supra, 538 U.S. at p.
25.) “[T]hree strikes sentences for less serious felonies have been routinely upheld
against Eighth Amendment attack.” (In re Bolton, supra, 40 Cal.App.5th at p. 622; see,
e.g., Ewing, at pp. 28, 30-31 [felony grand theft involving three golf clubs worth
approximately $1,200].) Thus, “[i]n weighing the gravity of [defendant’s] offense[s], we
must place on the scales not only his current felon[ies], but also his long history of felony
recidivism.” (Ewing, at p. 29.) “In imposing a three strikes sentence, the State’s interest
is not merely punishing the offense of conviction, or the ‘triggering’ offense: ‘It is in
addition the interest . . . in dealing in a harsher manner with those who by repeated
criminal acts have shown that they are simply incapable of conforming to the norms of
44
society as established by its criminal law.’ [Citations.] To give full effect to the State’s
choice of this legitimate penological goal, our proportionality review of [defendant’s]
sentence must take that goal into account.” (Ibid.)
On this record, we cannot say that defendant’s sentence constitutes cruel and
unusual punishment in violation of the Eighth Amendment. The sentence imposed by the
trial court is justified by defendant’s serious criminal record and the State’s public safety
interest in incapacitating and deterring recidivist felons. (Ewing, supra, 538 U.S. at pp.
29-30.) Defendant, for his part, failed to make a threshold showing of gross
disproportionality and made no attempt to engage in the comparative analysis required to
validate such a showing. (In re Coley, supra, 55 Cal.4th at p. 542.)
VI
Ineffective Assistance of Counsel
Defendant contends reversal is required because he was denied his right to
effective assistance of counsel due to various acts and omissions of his trial counsel. For
the reasons we shall explain, we find no ineffective assistance of counsel.
A. Applicable Legal Principles
“ ‘An ineffective assistance claim has two components: A [defendant] must show
that counsel’s performance was deficient, and that the deficiency prejudiced the defense.’
[Citations.] Whether counsel’s performance was deficient, and whether any deficiency
prejudiced defendant, are mixed questions of law and fact subject to our independent
review.” (In re Gay (2020) 8 Cal.5th 1059, 1073.) The reviewing “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.” (Strickland v.
Washington (1984) 466 U.S. 668, 697.) To establish prejudice, the defendant must
demonstrate there is a reasonable probability that, absent counsel’s errors, he would have
obtained a more favorable result. (Id. at p. 695.) “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (In re Gay, at p. 1086.)
45
B. Hearsay Objection
Defendant contends his trial counsel was ineffective for successfully objecting to
and moving to strike testimony given by a police officer that was critical to his defense of
mistaken identity. We disagree.
Sacramento Police officer Anthony Boler testified that he arrived at the duplex at
7:30 p.m. on September 11, 2017, in response to a report of a shooting. Upon his arrival,
he spoke with and took statements from T. and La.N. When he was asked what La.N.
had said about the shooting at the scene, Boler replied, “[La.N.] told me that he saw a
subject that he was told was Markees based on his other friend that was there. [T.] knew
him. And said that he saw him across the street possibly buying weed or --.” At that
point, defense counsel lodged a hearsay objection. The trial court sustained the objection
and granted counsel’s request to strike the testimony.
We need not decide whether defense counsel’s actions were deficient because
defendant suffered no prejudice. La.N. testified prior to Boler. During his testimony,
La.N. identified defendant as the shooter. In doing so, he explained that it was daytime
when the shooting occurred, and he saw defendant’s face at close range moments before
the gunshots were fired. La.N. testified that he told the responding officers that
defendant was the shooter after he viewed photographs of defendant on a cell phone,
which were shown to him by T. and S. When asked, La.N. made clear that he recognized
defendant as the shooter based on his own observations, not anything T. had said about
the identity of the shooter. Several days after the shooting, La.N. identified defendant
from a photographic lineup. On cross-examination, La.N. confirmed that he saw
defendant’s face moments before the shooting at close range. He also acknowledged that
T. had “said a name” of the person she believed was the shooter prior to the police
arriving, and that he, T., and S. were all talking at the same time when the police
46
arrived.15 When Boler was cross-examined, he said that T. identified defendant as the
shooter at the scene. In view of the record, we cannot conclude there is a reasonable
probability that, absent the objection by counsel, defendant would have obtained a more
favorable result.
C. Gang Evidence
Defendant contends his trial counsel was ineffective for failing to object when the
prosecutor committed misconduct by eliciting gang-related evidence in violation of a
court order, and by eliciting additional gang evidence. We disagree.
We have already concluded that defendant suffered no prejudice from the
prosecutor’s alleged misconduct regarding the solicitation of gang-related evidence. The
claim adds an exchange between defense counsel and a detective that involved a text
conversation found on defendant’s cell phone that occurred about a week before the
shooting:
“Q. And I know you went through each of the pages of this string of text
messages.
“But as you went through these, and . . . based on your training and
experience, can you kind of figure out what they’re talking about in . . . these text
messages?
“A. In this one, yes.
“Q. What is it?
“A. Well, when they talk about hurry up, we look stupid trying to trap on a
holiday, trap is a common term for selling drugs. They call them trap houses in gang
world, just what I said.
“Trying to trap on a holiday in the first place, how am I going to get da
15 On cross-examination, Boler acknowledged that “females,” including T. were
“chiming in” when La.N. was giving his initial statement at the scene.
47
without being seen?
“They talk about the car the police flipping on them and those type of messages.
They’re out there doing something which they refer to as trapping.
“Q. And you don’t know who is sending the messages. You just know what
phone numbers are going back and forth?
“A. Which phone numbers are sending those messages, correct. Yes.
In view of the compelling evidence against defendant and the brief reference to
him possibly being involved in a conversation using gang-related terminology, we do not
find there is a reasonable probability that, absent the alleged deficient performance by
defense counsel, defendant would have obtained a more favorable result. The text
messages, at most, indicate that defendant was familiar with gang terminology and
suggest he associated with gang members, but nothing in the conversation shows that he
was in a gang or affiliated with a gang. Moreover, as we have noted, the critical issue in
this case was the identity of the shooter. Defendant’s guilt turned on whether the jury
believed the evidence showing that he was the shooter.
D. Jury Instructions
Defendant contends that his trial counsel was deficient for a variety of reasons
related to jury instructions. However, with one exception that we need not discuss
here,16 we found no error on the merits with respect to defendant’s jury instruction
contentions or no prejudice from the asserted errors. Defendant’s sole remaining claim is
that a reasonably competent criminal defense attorney would have requested a limiting
instruction as to defendant’s April 2017 conduct, and that he was prejudiced because,
16 As set forth above, we have concluded that the instruction on the kill zone theory was
erroneous and was prejudicial as to the attempted murder of Z. but not prejudicial as to
the attempted murder of S. and La.N. In light of our conclusions, we need not address
defendant’s related claim that trial counsel was ineffective for failing to object to the kill
zone instruction.
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absent a limiting instruction, the jury was allowed to use that conduct as propensity
evidence in violation of Evidence Code section 1101, subdivision (a). We find no
prejudice.
Any error in failing to seek a limiting instruction was harmless given the relatively
benign and highly probative nature of the evidence of the April 2017 conflicts, only one
of which involved the brief brandishing of a gun, as well as the absence of any argument
by the prosecutor urging the jury to infer defendant’s propensity to commit the shooting,
the presumption that the jurors followed the instructions regarding presumption of
innocence and reasonable doubt, and the independent compelling evidence showing that
defendant was the perpetrator of the shooting, which we have outlined in detail ante.
E. Closing Argument
Defendant contends his trial counsel was ineffective for failing to argue to the jury
that, in the event it concluded he was the shooter, he was only guilty of the lesser
offenses, including assault with a semiautomatic firearm. We need not address whether
counsel was deficient because defendant has failed to show prejudice. We have
concluded that reversal is required on defendant’s conviction for the attempted murder of
Z. We have described in detail the compelling evidence of defendant’s guilt as charged
related to the attempted murder of S. and La.N. Argument is not evidence and would not
have added either proof or instructions to the information already under consideration by
the jury. On this record, we cannot conclude that, absent the alleged deficiency,
defendant would have obtained a more favorable result.17
17 To the extent this claim is based on defense counsel’s failure to argue that defendant
was, at most, guilty of the lesser included offense of attempted voluntary manslaughter, it
fails. As we explained above, the trial court had no duty to give an instruction on this
offense. It therefore follows that counsel was not deficient for failing to request an
instruction on the offense or argue that defendant was guilty of committing the offense.
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F. Sentencing
Defendant contends that his trial counsel was ineffective because he failed to “act
as a diligent and conscientious advocate” at sentencing. Specifically, defendant claims
that counsel was deficient because he failed to (1) file a motion requesting dismissal of
his strike priors and the firearm enhancements, (2) file a sentencing memorandum, (3)
argue that defendant’s youth should be considered in determining the proper sentence,
and (4) object to the lengthy sentence imposed by the trial court on the ground that it
constituted cruel and unusual punishment in violation of the Eighth Amendment. We see
no prejudice.
A review of the record undermines any claim that there is a reasonable probability
that, absent the alleged deficient performance by defense counsel, defendant would have
obtained a more favorable result. Having presided over the bifurcated proceeding
regarding defendant’s prior convictions and having considered the presentence report
prepared by the probation department, the trial court was aware that defendant was 22
years old and on parole when he committed the current offenses, and had suffered four
prior burglary convictions, three of which were serious felonies that qualified as strikes
under the three strikes law. The trial court was also aware of defendant’s juvenile record,
which included burglary offenses and unsatisfactory performance on probation, and that
defendant had engaged in numerous instances of misconduct while incarcerated pending
trial in this matter. At sentencing, defense counsel argued for leniency; he asked the trial
court to “consider concurrent sentencing” and “striking the five-year prior
enhancements.” The trial court acknowledged that it had discretion to strike or dismiss
the firearm enhancements and the five-year prior serious felony enhancements but
decided not to do so in light of defendant’s conduct regarding the current offenses and his
history. Instead, the court chose to impose the maximum possible sentence, which
included consecutive sentences, on the counts it determined were not subject to section
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654.18 In doing so, the court noted that there were multiple victims, and that it was a
“miracle” that no one was actually killed by defendant’s “highly dangerous” and “highly
reckless” actions. As for the felon in possession of a firearm offense, the court stated that
an upper term sentence was warranted because of defendant’s prior record, unsatisfactory
performance on parole and probation, and the “increasingly dangerous pattern” of his
crimes.
Under these circumstances, any arguable error by defense counsel was harmless.
The record does not reflect that it is reasonably probable the trial court would have taken
the extraordinary step of deeming defendant to be outside the spirit of the three strikes
law. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1382 [because there is a “preference in
the Three Strikes law against striking prior convictions,” a trial court’s decision to do so
“should be “ ‘ “extraordinary” ’ ”].) Nor does the record reflect that defendant would
have received a more favorable sentence had defense counsel requested a lesser sentence
in light of his youth or objected to the sentence imposed by the trial court on the ground
that it constituted cruel and unusual punishment in violation of the Eighth Amendment.
VII
Cumulative Error
Defendant contends that reversal is required due to the cumulative effect of the
errors he asserts on appeal. With one exception, we have either rejected on the merits
defendant’s claims of error or have found any assumed errors to be nonprejudicial. We
reach the same conclusion with respect to the cumulative effect of the asserted errors.
(People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.) As our Supreme Court has
observed, a defendant is “entitled to a fair trial but not a perfect one.” (People v.
18 As we discuss below, the trial court did not orally impose sentence on the counts it
determined were subject to section 654.
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Cunningham (2001) 25 Cal.4th 926, 1009.) In this case, defendant received a fair trial
except as to the count we will reverse.
VIII
Validity of Section 3051
Defendant was 22 years old when he committed the offenses in this case. Under
section 3051, subdivisions (a) and (b), offenders 25 years of age and younger at the time
of their offense are eligible for a youth offender parole hearing after 15, 20, or 25 years in
prison, depending on the sentence. (§ 3051, subds. (a), (b).) However, section 3051,
subdivision (h) provides that certain youth offenders, including those sentenced under the
three strikes law, such as defendant, are ineligible for youth offender parole hearings.19
Defendant contends this differential treatment violates equal protection principles.
According to defendant, he is similarly situated to youth offenders who were not
sentenced pursuant to the three strikes law, and there is no rational basis for the different
treatment. In support of his position, defendant primarily relies on People v. Edwards,
supra, 34 Cal.App.5th 183, in which the court held section 3051’s categorical ineligibility
for “One Strike” offenders had no rational basis and violated such offenders’ right to
equal protection, reasoning that one strike offenders are similarly situated to youths who
commit intentional first degree murder who remain eligible for youth offender parole
hearings even though their crimes are regarded as more culpable than the violent sex
crimes falling within the one strike law. (Id. at pp. 195-199.) The Edwards court
concluded the carve out in section 3051, subdivision (h) was unconstitutional on its face,
and remanded for the trial court to determine whether the defendants there were afforded
19 In relevant part, subdivision (h) of section 3051 provides: “This section shall not
apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b)
to (i), inclusive, of Section 667, or Section 667.61 . . . .”
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an adequate opportunity to make a record of information relevant to a future youthful
offender parole hearing. (Edwards, at pp. 199-200.)
We agree with the People that defendant forfeited his equal protection claim by
failing to raise it below. (See Alexander, supra, 49 Cal.4th at p. 880, fn. 14 [equal
protection claim forfeited for failing to raise it in the trial court].) In any event, we
conclude that the claim fails on the merits. A similar argument to that raised by
defendant was recently rejected in People v. Wilkes (2020) 46 Cal.App.5th 1159, 1164-
1166. We agree with the reasoning in Wilkes and follow it here to reject defendant’s
equal protection claim. In doing so, we agree with Wilkes that Edwards is
distinguishable. (See Wilkes, at pp. 1166-1167.)
IX
Remaining Issues
Although not mentioned by the People, we note that the trial court erred in failing
to impose sentence on counts five through nine and count eleven. At sentencing, the trial
court found that section 654 precluded punishment for these counts but did not orally
impose sentence and then stay execution of sentence as to each count. “[W]hen a court
determines that a conviction falls within the meaning of section 654, it is necessary to
impose sentence but to stay the execution of the duplicative sentence . . . .” (People v.
Duff (2010) 50 Cal.4th 787, 796; see also People v. Alford (2010) 180 Cal.App.4th 1463,
1469 [“to implement section 654, the trial court must impose sentence on all counts, but
stay execution of sentence as necessary to prevent multiple punishment”].) Accordingly,
when defendant is resentenced on remand, the trial court shall impose a full-term
sentence on each count it determines is subject to section 654 and then stay execution
thereof. (See People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164 [full-term sentence
required on counts stayed under § 654].)
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DISPOSITION
The conviction on count three (attempted murder of Z.) is reversed, sentence is
vacated, and the matter is remanded for further proceedings consistent with this opinion,
including the striking of the prior prison term enhancements. In all other respects, the
judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Raye, P. J.
/s/
Mauro, J.
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