The opinion
Filed 7/2/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076896
Plaintiff and Respondent,
v. (Super. Ct. No. SCD271651;
SCD277879)
LUIS ALEJANDRO DOMINGUEZ
et al.,
Defendant and Appellant.
APPEALS from judgments of the Superior Court of San Diego County,
Amalia L. Meza, Judge. Reversed and remanded.
Thomas E. Robertson, under appointment by the Court of Appeal, on
behalf of Defendant and Appellant Luis Alejandro Dominguez.
Athena Shudde, under appointment by the Court of Appeal, on behalf
of Defendant and Appellant Abraham Leal Torres.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Seth M. Friedman for Plaintiff and Respondent.
In a flurry of 21 bullets fired in 3.7 seconds, Luis Alejandro Dominguez
and Abraham Leal Torres (collectively, Defendants) shot and killed Angel
Sanabria and wounded Joseph Luna. They missed two others (Juan
Coronado and Alberto Nava), who were in or near the same small enclosed
area. All four victims were members or associates of the Eastside San Diego
gang. Defendants were charged with the first degree murder of Sanabria and
the premeditated attempted murder of Luna, Coronado, and Nava. No gang
enhancements were alleged; Defendants were not gang members, but were
admittedly part of a neighborhood “tagging crew” that had conflicts with the
Eastside gang
The issue at trial was not who shot, but why. Defendants admitted
they were the shooters. The issue was their state of mind. Each testified he
fired in a panic and fear when, while about eight feet away from them,
Sanabria said, “Where the fuck you from? . . . This is Eastside,” and lunged at
them while reaching for an apparent weapon in his waistband. The court
instructed the jury on both self-defense and voluntary manslaughter based on
imperfect self-defense. But it refused Defendants’ request to instruct on
voluntary manslaughter based on heat-of-passion, determining there was
insufficient evidence of the requisite provocation.
Along with making true findings on certain gun enhancements, the
jury convicted Defendants of second degree murder as to Sanabria (Pen.
Code,1 § 187, subd. (a)) and attempted murder as to Luna and Coronado
(§§ 187, subd. (a), 664).2 It found allegations that the attempted murders
1 Undesignated statutory references are to the Penal Code.
2 Torres alone was also charged with the attempted murder of J.T., who
Torres allegedly pointed a gun at while fleeing the scene. The jury acquitted
on that count as well.
2
were premediated to be “not true.” It also acquitted Defendants of (1) first
degree murder as to Sanabria; and (2) both attempted murder and attempted
voluntary manslaughter as to Nava. The court sentenced Dominguez to a
prison term of 16 years, plus 65 years to life and Torres to 17 years, plus 65
years to life.3
On appeal, Defendants contend the court erroneously refused their
request to instruct on voluntary manslaughter based on heat of passion.
Additionally, they assert that in light of People v. Canizales (2019) 7 Cal.5th
591 (Canizales), which was decided after trial, the court gave an erroneous
“kill zone” instruction on the element of intent to kill for attempted murder.
They further assert the evidence is insufficient to support their convictions on
that theory.
We conclude the court erroneously refused to instruct on voluntary
manslaughter based on heat of passion. Where, as here, the evidence can
support not only self-defense and imperfect self-defense, but also that the
defendant killed because his reason was obscured by passion in response to
the victim’s objectively provocative conduct, the trial court should instruct on
all three theories. (People v. Breverman (1998) 19 Cal.4th 142 (Breverman).)
In light of the Defendants’ testimony, the jury should have been permitted to
find Defendants guilty of voluntary manslaughter (instead of second degree
murder) and attempted voluntary manslaughter (instead of attempted
murder).
On the attempted murder convictions, the Attorney General concedes
that “the trial court’s kill zone instruction was prejudicially erroneous” under
Canizales. We accept the concession, and also conclude that the evidence is
sufficient to support attempted murder convictions on that theory.
3 Torres’s extra year resulted from an unrelated case.
3
Accordingly, we will reverse the judgments and remand for a new trial on the
reversed convictions.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Running the Streets Tagging Crew and the Eastside San Diego
Gang.
This case involves the Eastside San Diego (Eastside) criminal street
gang and a tagging crew—Running the Streets (RTS)—that operated in the
same neighborhood.4 ; A tagging crew consists of two or more person who,
using a common name (such as RTS), deface property with graffiti. In San
Diego, there are approximately 200 different tagging crews. Although
tagging crews do not have geographical boundaries (they will deface property
anywhere), they tend to frequent a particular area.
RTS’s primary criminal activity is spray painting graffiti. At the time
of Sanabria’s shooting, it had only four members, two of whom were
Dominguez and Torres. Eastside is a full-fledged criminal street gang, with
237 documented gang members, plus at least another 250 individuals who
associate with the gang. Its members engage in murder, attempted murder,
assault, kidnapping, carjacking, and drug trafficking. They will not hesitate
to use guns, knives, brass knuckles, and even baseball bats as weapons.
Sanabria was not an Eastside gang member, but associated with them.
In 2014, he was convicted of assault with force likely to produce great bodily
injury. On his way to jail Sanabria boasted, “I beat that Nigga’s ass.”
Coronado, Sanabria’s cousin, also associates with Eastside. There was
some evidence—not the least of which is a large “SE” tattoo on his chest—
that he was affiliated with the Southeast Locos gang. In prison, he claimed
4 RTS was also called Respect the Shooter.
4
to be in Sureños.5 Luna is a “hard core” Eastside gang member, described by
police as “Eastside to the very last bone.” He has prior felony convictions
with gang enhancements for robbery and assault with a deadly weapon.6
Although a tagging crew is not a street gang, there are some
similarities. If a tagging crew is disrespected, it is expected that the
members will respond with violence. And like gang members, members of a
tagging crew have monikers. Dominguez’s moniker is Creeps or Creeper, and
he has RTS tattooed on a finger. Police consider him to be a “tag banger”—a
tagging crew member who is not just there for the art, but who also commits
acts of violence on rivals. Torres’s moniker is Boozer and, like Dominguez, he
also has RTS tattoos.
Eastside treats tagging crews as a training ground from which to
acquire new talent. Over the years, Eastside recruited (or completely
absorbed) several tagging crews. But like so much of gang life, recruiting
tagging crew members has the potential for serious violence. If a recruit
were to refuse an invitation to join the gang, Eastside would consider that
person a “rival” who would be “dealt with” for disrespecting the gang. The
prosecution’s gang expert explained:
“Q: You testified . . . that the Diego Aztecs were at one
point [ ] a tagging crew and then now there is no more
Diego Aztecs that are individuals, right, they are just part
of Eastside?
“A: Yes, sir.
“Q: And the truth for the Diego Aztec was that when
[Eastside] came to ask them or tell them that they were
going to be gang members, they had two choices, right, they
5 Sureños is a prison gang affiliated with the Mexican Mafia.
6 Nava, likewise, was an Eastside associate.
5
could either become [Eastside] or, in their words, they could
get banged on, right?
“A: That would be accurate, yes.
“Q: If they did not join [Eastside], they would get dealt
with, in your words?
“A: Yes.
“Q: And that means they would be targeted for assault,
right?
“A: They would be viewed as rivals.
“Q: Or maybe they could be even targeted for killing, right?
“A: It could escalate to that, yes.”
Historically, Eastside and RTS coexisted in the City Heights area of
San Diego without conflict. But by 2017, there was “major conflict” between
the two groups. After this rift, RTS members started carrying guns.
Eastside sought to absorb RTS into the gang but Torres was not interested,
testifying “I just like to do art.” Dominguez knew that Eastside was “looking
for” RTS members to assault.
B. The Events Leading Up to the Shooting
The Villa Escondido apartments in City Heights was a hub for
Eastside. Gang member Edwin Garcia lived there, and his cohorts often
gathered in front of the building. It is located within territory also
frequented by RTS.
6
In the afternoon and into early evening of April 1, 2017, Sanabria,
Nava, Coronado, Luna, and Garcia were listening to music, drinking beer,
and smoking PCP-laced cigarettes in a small enclosed area by the trash
dumpster at Villa Escondido. A photo taken that day shows, from left to
right, Nava, Coronado, Luna, and Garcia. Garcia, holding a knife, also had a
machete strapped to his pants. Sanabria is not pictured because he took this
photograph.
In the early evening of April 1, Dominguez and Torres were walking in
the alley behind Villa Escondido. This is the area on the other side of the
metal gate and fence shown in the photograph. Torres had a .45-caliber
semiautomatic gun; Dominguez, a 9-millimeter.
Sanabria was standing inside the enclosure, next to the metal gate
shown in the right center of the photo. He was on the phone with his
pregnant girlfriend, C.B., who was in a drug rehabilitation facility. According
to Coronado, Sanabria was telling C.B. how much he loved her and was
7
looking forward to being a father. But C.B. testified she was upset and
yelling at Sanabria:
“Q: During that conversation, you were—I mean, you were
yelling at lot at [Sanabria], right?
“A: Yeah.
“Q: You were accusing him of using drugs?
“A: Yeah.
“Q: And he told you, [‘]No, I’m just drunk as fuck.[’]
“A: Yes.”
When the call ended, Luna was standing about five feet from Sanabria.
Coronado was between the dumpster door and the corner of the dumpster
wall. Nava was near the end of the alcove. Garcia was out of the enclosure,
at the corner of the building. At trial, Coronado placed initials where he
claimed each person was standing. We have superimposed names on those
initials and indicated north/south for clarity:
8
Gunfire erupted about five minutes after Sanabria’s call with C.B.
ended. What happened immediately before the gunfire was hotly disputed.
C. The People’s Theory of Premeditated Murder
The People’s theory was that Dominguez and Torres planned and
executed an ambush of rival Eastside gang members. The alleged motive was
an all too familiar one in these cases: By killing rival gang members,
Dominguez and Torres would gain status and respect within RTS.
To support that theory, the People presented evidence that Sanabria
and the others (except Garcia) were unarmed and merely having a party.
Nearby residents testified they heard no shouting or yelling before the
gunfire. Coronado, who was granted immunity in exchange for truthful
testimony, denied that the group was boisterous or violent. He told police he
caught a glimpse of a gunman positioned over the top of the fence, and that
the pedestrian gate was closed immediately before the shooting. He also
testified that the shooters said nothing before firing, and he had never seen
Dominguez or Torres before.7
In just 3.7 seconds, Dominguez and Torres fired 21 bullets.8 This was
significantly faster than would ordinarily be expected to aim and shoot.
Sanabria was shot nine times. He also sustained “penetrating injuries” from
shards of metal fence and/or gate that had been struck by bullets. Luna was
shot in the leg. Coronado, Nava, and Garcia were unharmed.
7 Coronado was impeached with his preliminary hearing testimony,
where he stated that immediately before the gunfire, Sanabria opened the
gate to greet in a friendly manner two men passing by.
8 Coincidentally, a nearby resident was livestreaming on social media
when the shooting started. Police counted and timed the gunshots from the
recording.
9
D. The Defense Case
Torres testified that in the past he had been assaulted by gang
members, including two occasions at gunpoint. In 2017, he learned that
Eastside was trying to recruit RTS and did not want any part of it. Torres’s
RTS friends had recently been assaulted by Eastside, and he was “scared.”
Torres stated that before the shooting, he and Dominguez had been
drinking beer and smoking marijuana most of the afternoon. On the way to
Dominguez’s home for a meal, they took a shortcut—the alley behind Villa
Escondido. Someone yelled, “Hey, come over here.” Believing it might be
someone they knew, Torres and Dominguez approached. Sanabria said,
“Where the fuck you from? . . . This is Eastside.” Lunging towards Torres,
Sanabria reached for what appeared to be a weapon in his waistband.
Fearing that Sanabria was going to kill him and “super scared,” Torres drew
his gun, closed his eyes and fired.
Dominguez testified similarly. He too was the past victim of gang
violence, including an incident when at gunpoint someone asked, “Where are
you from?” He carried a gun because Eastside was “jumping [his] friends and
[he] needed to protect [him]self just in case.”
Sanabria’s blood tested positive for alcohol and PCP. He was under the
influence of both substances at the time of the shooting. PCP reduces
inhibitions and causes potentially aggressive behavior, feelings of
invulnerability, and sometimes “very bizarre behavior.” Alcohol can enhance
these effects.
The defense theory was that Dominguez and Torres unwittingly walked
into a firestorm of aggression: Sanabria, high on PCP, had just argued with
his girlfriend, and called out to Dominguez and Torres to take it out on them.
Dominguez testified that Sanabria propped the gate open with his left leg
10
and said, “Hey, who the fuck are you fools? Like where the fuck you fools
from, homie? This is [Eastside].” Sanabria started “pulling something” with
a black handle from his waist “[S]uper panicked[] [and] super scared,”
Dominguez closed his eyes, “and then just started shooting random.
Everything happened in a matter of seconds. It just caught me completely off
guard.” Dominguez explained, “[M]y mind went blank.”
DISCUSSION
A. The Court Erroneously Refused to Instruct on Voluntary
Manslaughter Based on Heat-of-Passion.
1. Heat of Passion Voluntary Manslaughter: General Principles
Murder is the unlawful killing of a human with malice aforethought.
(§ 187, subd. (a).) A person who intentionally kills in a “sudden quarrel or
heat of passion” (§ 192, subd. (a)) or in the unreasonable but good faith belief
in having to act in self-defense (imperfect self-defense), lacks malice. (People
v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) The resulting crime is voluntary
manslaughter, a lesser included offense of murder. (Ibid.)
Voluntary manslaughter based on heat of passion has both an objective
and a subjective component. (Moye, supra, 47 Cal.4th at p. 549.) “The
provocative conduct by the victim . . . must be sufficiently provocative that it
would cause an ordinary person of average disposition to act rashly or
without due deliberation and reflection.” (Id. at p. 550.) Subjectively, the
defendant must have killed while under “ ‘the actual influence of a strong
passion’ induced by such provocation.” (Ibid.) The passion aroused need not
be anger or rage, but can be any intense emotion other than revenge.
(Breverman, supra, 19 Cal.4th at p. 163.) Thus, a defendant’s “immediate
fear and panic” can, in an appropriate case, provide evidence from which “a
reasonable jury could infer that defendant was aroused to passion, and his
11
reason was thus obscured . . . .” (Breverman, supra, 19 Cal.4th at pp. 163‒
164.)
A trial court must instruct on lesser included offenses when there is
substantial evidence that the defendant committed the lesser offense instead
of the greater. (People v. Vasquez (2018) 30 Cal.App.5th 786, 792.) Here, in
addition to jury instructions on (1) self-defense and (2) voluntary
manslaughter based on imperfect self-defense (which the court gave),
Defendants asked the court to also instruct with CALCRIM Nos. 570 and
603—voluntary manslaughter (and attempted voluntary manslaughter)
based on heat of passion. The court denied these requests on the grounds
there was insufficient evidence of both objective and subjective provocation,
stating:
“Here it cannot be said that reasonable people would
become homicidally enraged when hearing ‘Eastside’ or
‘where you from.’ There was also no evidence that
[D]efendant[s] exhibited anger, fury or rage when [they]
fired [their] gun[s]. Further, the argument that [they]
fired . . . after years of trauma is insufficient to merit an
instruction.”
2. There was Substantial Evidence of Objective Provocation.
“We review de novo a trial court’s failure to instruct on a lesser
included offense [citation], and in doing so we view the evidence in the light
most favorable to the defendant[s].” (Millbrook, supra, 222 Cal.App.4th at
p. 1137.) In determining whether there is substantial evidence of objective
provocation, a court is guided by two basic principles.
First, the relevant question is not whether an ordinary person would
have become “homicidally enraged” by the provocative conduct. “Adopting a
standard requiring such provocation that the ordinary person . . . would be
moved to kill focuses on the wrong thing. The proper focus is placed on the
12
defendant’s state of mind, not on his particular act.” (People v. Beltran (2013)
56 Cal.4th 935, 949 (Beltran).) The issue is whether the provocation would
cause an emotion so intense that an ordinary person in the same or similar
circumstances “would simply react, without reflection.” (Ibid.)
Second, the defendant’s reaction is measured against that of the
ordinary reasonable person acting in the same or similar circumstances. But
the facts known to the defendant are part of the circumstances in which the
reasonable person is deemed to be situated. “To assess whether a belief was
objectively reasonable, ‘a jury must consider what “would appear to be
necessary to a reasonable person in a similar situation and with similar
knowledge.” ’ ” (People v. Brady (2018) 22 Cal.App.5th 1008, 1014 (Brady).)
The jury “must assume ‘ “the point of view of a reasonable person in the
position of defendant,” ’ taking into account ‘ “all the elements in the case
which might be expected to operate on his mind.” ’ ” (Ibid.)
At the same time, however, the standard always remains that of the
ordinary reasonable person. The defendant’s conduct is not measured
against that of, for example, the ordinary reasonable gang member or the
ordinary reasonable person who “was intoxicated” or “suffered various mental
deficiencies” or “psychological dysfunction due to traumatic experiences.”
(People v. Steele (2002) 27 Cal.4th 1230, 1253.) The heat of passion “ ‘must be
such a passion as would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances,’ because ‘no
defendant may set up his own standard of conduct and justify or excuse
himself because in fact his passions were aroused, unless further the jury
believe that the facts and circumstances were sufficient to arouse the
passions of the ordinarily reasonable [person].’ ” (Id. at pp. 1252‒1253.)
13
In sum, as this court stated in Brady, “the reasonable person standard
takes into account a defendant’s knowledge that may increase his or her
ability to accurately predict impending violence.” (Brady, supra, 22
Cal.App.5th at p. 1017.) While jurors cannot step into the shoes of a gang
member, or a person with a mental disability, it is reasonable to expect them
to understand how the facts and circumstances known to the defendant may
affect the reasonableness of one’s reaction to provocation. (See People v. Horn
(2021) 63 Cal.App.5th 672, 685.)
Here, one such fact and circumstance is that when a gang member
says, “Where you from?” to a perceived rival, violence is almost certain to
follow. The gang expert testified:
“Q: If an individual is not an Eastside gang member and
they heard an Eastside gang member say [‘]where you
from[’] and they have reason to believe that the Eastside
gang member associates them with a rival, that word—that
phrase, ‘where you from,’ could have a significant
connotation to that—the listener, correct?
“A: Yes, sir.
“Q: And it could be essentially telling them that they are
about to be injured?
“A: Yes.
“Q: They’re about to be assaulted or stabbed or shot or
something like that?
“A: Yes, sir.” [¶] . . . [¶]
“Q: It’s understood by individuals who have that question
asked of them, that you could be killed?
“A: You could, yes.” (Italics added.)
Despite this evidence, the trial court and Attorney General contend
that “Where you from?” could never objectively provoke heat of passion. We
do not disagree that in the abstract, “where you from” is insufficient. But
14
words seldom have fixed meanings. Meaning depends on the context and
sense in which words are spoken. (Pacific Gas & Elec. Co. v. G. W. Thomas
Drayage & Rigging Co. (1968) 69 Cal.2d 33, 38 (PG&E).)9 For example,
“trunk” can mean the back of a car, the main stem of a tree, a sturdy box for
holding clothes, a person’s torso, and an elephant’s nose. The intended
meaning is usually clear, however, by the context in which “trunk” is used.
When a traveler says, “put the luggage in the trunk,” people don’t look for an
elephant.
In some other context, “Where the fuck you from” might be understood
as an extremely rude insult. But the facts and circumstances here—a
confrontation between a criminal street gang and its perceived rivals—
suggest that Sanabria used those words intending to mean, and was
understood by the hearers (Defendants) to mean: We’re now going to hurt or
kill you. The gang expert testified, “Usually nothing good is going to come
after that question.” The expert further explained:
“Q: You have testified that when gang members say, hey,
where you from, there is no right answer to that, right?
“A: Yeah. Typically . . . when that question is asked,
there’s usually some form of violence coming your way.”
[¶] . . . [¶]
“Q: It’s understood by individuals who have that question
asked of them, that you could be killed?
“A: You could, yes.”
9 “ ‘A word is a symbol of thought but has no arbitrary and fixed meaning
like a symbol of algebra or chemistry, . . . [Citation]. The meaning of
particular words or groups of words varies with the . . . [‘]verbal context and
surrounding circumstances and purposes in view of the linguistic education
and experience of their users and their hearers or readers (not excluding
judges). . . . A word has no meaning apart from these factors.’ ” (PG&E,
supra, 69 Cal.2d at p. 38.)
15
Coupled with evidence that Sanabria lunged at Defendants while
reaching for an apparent weapon in his waistband, these words—in this
context, with this expert testimony—together constitute substantial evidence
from which a jury could reasonably find objective provocation. A reasonable
person in the same or similar circumstances would “act rashly and without
due deliberation, that is, from passion rather than from judgment.”
(CALCRIM No. 570; see Millbrook, supra, 222 Cal.App.4th at pp. 1139‒1140
[adequate provocation where the defendant testified “he was ‘scared’ and
‘panicking’ ” when he shot the victim after the victim “clenched his fists and
‘lunged’ at [him]”]; see also People v. Thomas (2013) 218 Cal.App.4th 630, 645
(Thomas) [adequate provocation where victim lunged at defendant; defendant
thought he was “going for the gun”]; In re Hampton (2020) 48 Cal.App.5th
463 (Hampton) [defendant testified that he fired when the victim lunged at
him and did so without thinking because he was scared that he would be
shot].)10 (Hampton, at pp. 480‒481.)
In ruling to the contrary, the trial court cited People v. Avila (2009)
46 Cal.4th 680, 706 for the proposition that a reasonable person would not
“become homicidally enraged” when hearing, “This is Eastside.” But as
explained above, the relevant question is not whether the provocation is
sufficient to cause homicidal rage. “[P]rovocation is not evaluated by whether
the average person would act in a certain way: to kill. Instead, the question
10 The Attorney General seeks to distinguish Thomas and Hampton on
the grounds that those cases involved a physical confrontation “where the
victim lunged at the defendant and reached for a gun in the defendant’s
possession” and did not address “whether a gang challenge could be
objectively sufficient for heat of passion.” But as explained above, the
evidence here goes well beyond a mere challenge and, like Thomas and
Hampton, here there is evidence that Sanabria lunged at Defendants while
apparently reaching for a gun or other weapon.
16
is whether the average person would react in a certain way: with his reason
and judgment obscured.” (Beltran, supra, 56 Cal.4th at p. 949.)11 Moreover,
in Avila, the claimed provocation was one word, “Carmelos,” which the
defendant did not even recognize, but assumed was a gang name. (Avila, at
p. 686.) There was no other provocative conduct. After the verbal
confrontation in Avila dissipated, the defendant stabbed the victims. (Ibid.)
In sharp contrast here, the Defendants testified that Sanabria lunged at
them while reaching for an apparent weapon.
To support the trial court’s ruling, the Attorney General primarily
relies on People v. Enraca (2012) 53 Cal.4th 735 (Enraca), which he asserts
stands for the proposition that “[a] victim’s alleged gang challenge does not
require an instruction on heat-of-passion manslaughter.” This argument fails
for two reasons. First, as just explained, the evidence of provocation here
goes substantially beyond an insult and gang challenge. Second, there was
no evidence in Enraca that the defendant acted in the heat of passion.
Outnumbered nearly 20 to 1, a gang member (Gobert) said, “ ‘Fuck you,
slobs’ ” to the defendant and his cohorts. (Id. at p. 742.) In response, the
defendant laughed because Gobert was drunk and vastly outnumbered.
(Ibid.) Later, when Gobert then lifted up his shirt as if he had a gun
(objectively provocative conduct), the defendant “remained calm and tried to
11 Although the phrase “homicidally enraged” appears in Avila, no other
Supreme Court case of which we are aware uses that term to describe
adequate provocation. Accordingly, we understand it to mean a provocation
that would cause a reasonable person to become “so inflamed as to lose
reason and judgment,” which is how the Supreme Court has described
adequate provocation in cases both before and after Avila. (Beltran, supra,
56 Cal.4th at p. 949; People v. Manriquez (2005) 37 Cal.4th 547, 586
(Manriquez); People v. Gutierrez (2009) 45 Cal.4th 789, 827; and People v.
Thomas (2012) 53 Cal.4th 771, 813.)
17
exert a calming influence” on other gang members. (Id. at p. 760.) The
defendant told police he drew his pistol “with the intention of stopping”
a fight and intended to shoot in the air so that “everyone would just run.”
(Ibid.)
Thus, in Enraca there was initially no objective provocation because
the start of the encounter was literally laughable. And in the face of
subsequent objectively provocative conduct, the defendant admitted he
remained calm. Read in light of its facts, we do not understand Enraca to
create a “gang exception” to established principles governing heat-of-passion
voluntary manslaughter.12
3. There was Substantial Evidence of Subjective Provocation.
To satisfy the subjective component, the defendant must have acted
while under the actual influence of “a strong passion.” (Millbrook, supra, 222
Cal.App.4th at p. 1139.) The passion aroused “need not be anger or rage,” but
can also be any intense emotion except revenge. (Ibid.) The Attorney
General concedes this includes fear. (People v. Mitchell (1939) 14 Cal.2d 237,
252.)
Dominguez testified that after Sanabria said, “This is Eastside” and
reached for a black-handled object in his waistband, he “reacted” while “super
panicked,” and “super scared.” He claims that his mind “went blank,” he
closed his eyes, and could not stop shooting until his gun was empty. Torres
similarly testified that he was “scared,” “super scared” and “just started
12 The Attorney General’s reliance on another Supreme Court case,
Manriquez, supra, 37 Cal.4th 547, is misplaced for the same reason. There,
the only evidence of provocation was the victim called the defendant a
“ ‘mother fucker’ ” and taunted him to use a weapon if he had one. (Id. at
p. 586.) The Supreme Court held such conduct was “plainly . . . insufficient to
cause an average person to become so inflamed as to lose reason and
judgment.” (Ibid.) Nothing in our analysis is inconsistent.
18
firing” with his eyes closed. Viewing the evidence in the light most favorable
to Defendants, as we must on this issue, their testimony is plainly sufficient
to support a finding of subjective provocation. The rapid fire—21 bullets in
3.7 seconds—is consistent with a panic shooting.
In ruling there was insufficient evidence of subjective provocation, the
trial court stated, “To satisfy the subjective component, there must be some
showing that defendant exhibited anger, fury or rage so that he actually
killed under the heat of passion.” The court erred because any intense
emotion (except revenge) may suffice—including fear and panic.
For example, in Thomas, supra, 218 Cal.App.4th 630, a dispute over
parking escalated into a shooting. Thomas, the defendant in that case,
testified that he was “afraid” and “nervous” and “just wasn’t thinking clearly”
when Navarro, the victim, lunged at him while reaching for a gun. (Id. at
pp. 639‒640.) Thomas testified that he was afraid of being injured or killed,
and felt he had no choice but to shoot. (Id. at p. 640.) The Court of Appeal
held the trial court prejudicially erred in denying Thomas’s request to
instruct the jury on heat-of-passion voluntary manslaughter. The court
explained:
“Thomas says Navarro lunged at him, and he pulled the
trigger. Thomas thought Navarro was going for the gun,
and said he did not intend to fire. He fired because he was
afraid, nervous and not thinking clearly. Although these
facts may fit more precisely with a homicide mitigated by
imperfect self-defense, we cannot rule out that they may
also show that Thomas was guilty only of voluntary
manslaughter because when he shot Navarro his passion
was aroused and his reason was obscured due to a sudden
quarrel.” (Id. at p. 645.)
In seeking to uphold the trial court’s ruling, the Attorney General
contends that Defendants’ fear (“if it existed”) could have supported
19
instructions on self-defense and imperfect self-defense (which the court gave),
but not voluntary manslaughter based on heat of passion. We disagree
because these theories are not mutually exclusive. Where, as here, there is
evidence that the victim was the first to attack the defendant, instructions on
heat of passion may be required in addition to those on reasonable and/or
imperfect self-defense, depending on the particular facts. In People v. St.
Martin (1970) 1 Cal.3d 524, the Supreme Court observed: “ ‘In a prosecution
for murder the presence of sufficient provocation or heat of passion negates
the existence of the requisite malice aforethought. [Citation.] In the usual
case, this instruction supplements the self-defense instruction. Thus, in a
prosecution for murder, even though the defense of self-defense fails, as it
might for excessive retaliation by the defendant, the jury might still find the
original attack sufficient to constitute provocation, which would preclude a
finding of malice aforethought and reduce the crime to manslaughter.’ ”
(Id. at pp. 530‒531, italics added.)
It is correct, as the Attorney General argues, that imperfect self-
defense and voluntary manslaughter based on heat of passion are closely
related. The victim’s conduct that justifies the use of some force in self-
defense will often be the reasonable provocation that causes a defendant to
lose self-control in the heat of passion. But the theories serve different
purposes and involve different analyses. Evidence may support one but not
the other.
For example, a defendant’s cool calculation to use deadly force in the
face of a threat will defeat a heat-of-passion voluntary manslaughter theory.
In fact, as we just explained, this is the fact pattern in Enraca, supra, 53
Cal.4th at page 760. But the same evidence may permit a theory of imperfect
self-defense (excessive force in self-defense). Similarly, a reasonable
20
opportunity to retreat may defeat a claim of perfect or imperfect self-defense
because “the opportunity to retreat means that no use of force was
reasonable.” (Commonwealth v. Glover (Mass. 2011) 459 Mass. 836, 842 [948
N.E.2d 415, 421].) At the same time “the victim’s conduct that caused the
defendant to believe he was in imminent danger may be sufficient to support
a theory of reasonable provocation.” (Ibid.)
If there is substantial evidence that the defendant killed with a good
faith but unreasonable belief in the need for self-defense, and also that the
defendant killed because his reason was obscured by passion in response to
the victim’s objectively provocative conduct, the trial court should instruct on
voluntary manslaughter under both unreasonable self-defense and heat of
passion theories. For example, in Breverman, supra, 19 Cal.4th 142,
instructions on these two theories were required based on evidence that a
group of armed men were in front of the defendant’s home bashing his car. In
response, the defendant, fearing the attackers would enter his home and kill
him, shot through a windowpane and then, after going outside, fatally shot
one of the men. (Id. at pp. 150–151.) Similarly, in People v. Barton (1995)
12 Cal.4th 186, 202, the Supreme Court held that a trial court was required
to instruct on both imperfect self-defense and heat of passion theories of
voluntary manslaughter where there was substantial evidence that
defendant shot the victim during a heated argument and also in the
unreasonable-but-good-faith belief in self-defense.
Millbrook, supra, 222 Cal.App.4th 1122 is particularly instructive
because the Court of Appeal held the evidence required instructions on self-
defense, imperfect self-defense, and heat of passion. The appellate court
stated:
21
“[W]e first observe that there is nothing in the jury’s verdict
that is inconsistent with the need for a heat-of-passion
instruction. If the jury had returned a verdict on the
allegation that [defendant’s] attempted murder . . . was
willful, premeditated, and deliberate, the finding would
have been ‘manifestly inconsistent with having acted under
the heat of passion.’ [Citation.] But the jury was unable to
return such a verdict. And although the jury must have
found that [the defendant] intended to kill since such a
finding is a prerequisite for a conviction of attempted
murder, the finding does not rule out the possibility
that [he] acted upon a sudden quarrel or in the heat of
passion. [Citation.] This possibility was similarly not ruled
out by the jury’s rejection of the two self-defense theories
upon which it was instructed—that [defendant] was not
guilty of attempted murder because he acted in reasonable
self-defense and, in the alternative, that [he] was guilty
only of attempted voluntary manslaughter because he acted
in imperfect self-defense. Indeed, ‘ “[i]n the usual case,” ’ a
heat-of-passion instruction ‘ “supplements the self-defense
instruction.” ’ ” (Millbrook, supra, 222 Cal.App.4th at
p. 1138.)
Here, even if the jury did not believe that Defendants either reasonably
or unreasonably thought deadly force was necessary—as jurors may have
concluded in rejecting these theories—they could nevertheless have found
that Defendants fired in the heat of passion. (See Hampton, supra, 48
Cal.App.5th at pp. 480‒481 [self-defense, imperfect self-defense, and heat of
passion instructions required where defendant testified the victim attempted
to rob him and, afraid he would be shot, defendant grabbed the gun and shot
“without conscious thought”].) Accordingly, the court should have given the
requested instruction.
In a related argument, citing People v. Wickersham (1982) 32 Cal.3d
307 (Wickersham), the Attorney General contends the trial court correctly
refused to instruct on heat of passion because the “same facts” supported a
22
finding of reasonable self-defense. But we read Wickersham more
narrowly.13 In Wickersham, the only evidence of provocation was that the
victim grabbed a nearby gun. (Wickersham, at p. 327.) The court held that
even if that was “provocation,” it would also necessarily “give rise to a finding
of reasonable self-defense.” (Id. at p. 328.) Under those circumstances, the
court held that a heat-of-passion instruction was not appropriate. (Id. at
pp. 327‒328.)
Wickersham’s point, we believe, is that a jury cannot avoid acquitting a
defendant based on self-defense by finding that the victim's act that justified
a self-defense killing also provoked a heat-of-passion voluntary
manslaughter. Otherwise, the jury could convict a defendant of voluntary
manslaughter even when he or she committed a justified homicide and
should have been acquitted. Thus, Wickersham holds that when
the only “provocation” is one that would support a claim of self-defense, the
jury need not be instructed on heat-of-passion manslaughter. Wickersham
does not apply here because Sanabria’s reaching for a weapon was only part
of the provocation.
4. The Court’s Refusal to Instruct on Heat of Passion Was Prejudicial.
The parties disagree on the applicable standard for assessing
prejudice—Defendants contend the Chapman14 standard applies, while the
13 Wickersham has been cited with “negative treatment” in 420
subsequent appellate opinions—too numerous to list here.
14 Chapman v. California (1967) 386 U.S. 18, 24 [“before a federal
constitutional error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt”].
23
Attorney General advocates for Watson.15 As we explain, Defendants have
the better argument.
In Thomas, supra, 218 Cal.App.4th 630, the Court of Appeal addressed
this issue and concluded Chapman applies. The court’s rationale was
straightforward: because malice is an element of murder and heat-of-passion
negates malice, when heat of passion is put in issue the federal due process
clause requires the prosecution to prove the absence of provocation beyond a
reasonable doubt. The Thomas court explained, “Thus, in California, when a
defendant puts provocation in issue by some showing that is sufficient to
raise a reasonable doubt whether a murder was committed, it is incumbent
on the prosecution to prove malice beyond a reasonable doubt by proving that
sufficient provocation was lacking.” (Thomas, at p. 643.) Accordingly,
Thomas held that because “ ‘[j]ury instructions relieving the prosecution of
the burden of proving beyond a reasonable doubt each element of the charged
offense violate the defendant’s due process rights under the federal
Constitution,’ ” the “[f]ailure to instruct the jury on heat of passion to negate
malice is federal constitutional error requiring analysis for prejudice
under Chapman.” (Thomas, at p. 644.)
We find Thomas’s reasoning persuasive.16 And the failure to instruct
on heat of passion voluntary manslaughter was certainly not harmless
15 People v. Watson (1956) 46 Cal.2d 818, 836 [reversal required only if “it
is reasonably probable that a result more favorable to the [defendant] would
have been reached in the absence of the error”].
16 We also note that the Attorney General’s discussion of this issue
borders on a concession that Chapman applies. Without discussing Thomas,
supra, 218 Cal.App.4th 630, and with no other analysis or argument, the
Attorney General simply asserts as if it were self-evident, “The court should
apply Watson.”
24
beyond a reasonable doubt. Notably, the jury acquitted Defendants on first
degree premeditated murder and found “not true” that the attempted
murders were “willful, deliberate and premeditated.” The jury rejected the
People’s theory of a planned ambush, and seemingly accepted that
Defendants were provoked in some degree or manner.
Moreover, although the jury rejected the two self-defense theories upon
which it was instructed, heat-of-passion voluntary manslaughter is distinct.
For example, a finding that Defendants did not act in self-defense because
they could have simply run away from the encounter (making the use of any
force unreasonable) would not have precluded a properly instructed jury from
also concluding that Defendants fired in subjective fear and panic caused by
objectively adequate provocation. Thus, this case is unlike Moye, supra,
47 Cal.4th 537, where in rejecting the self-defense argument, the jury
necessarily rejected the only evidence that would have supported a heat-of-
passion instruction. (See discussion in Millbrook, supra, 222 Cal.App.4th at
p. 1148.)
In assessing the prejudicial effect of the failure to instruct on heat of
passion voluntary manslaughter, it is also significant that the court
instructed the jury with CALCRIM No. 522 on provocation. That instruction
states, “Provocation may reduce the murder from first degree to second
degree” and “If you conclude that the defendants committed murder but were
provoked, consider the provocation in deciding whether the crime was first or
second degree murder.”
“[A] subjective test applies to provocation as a basis to reduce malice
murder from the first to the second degree . . . .” (People v. Jones (2014) 233
Cal.App.4th 995, 1000.) Thus, we know that by giving this instruction, the
trial court determined there was substantial evidence that Defendants were
25
subjectively provoked. By acquitting on first degree and convicting on second
degree murder, the jury apparently found that Defendants were subjectively
provoked. The problem is the jury was not given the option of also finding
objectively adequate provocation to result in voluntary manslaughter rather
than second degree murder.
Based on the jury’s rejection of both self-defense theories, it is unclear
how much of Defendants’ testimony jurors found credible. Dominguez and
Torres may well have been lying. When they thought no one was listening,
they talked about getting their stories straight. But especially because the
jury rejected the prosecutor’s theory of a premediated ambush killing, we
cannot conclude that the failure to instruct on voluntary manslaughter based
on heat of passion was harmless beyond a reasonable doubt.
B. Instruction on the “Kill Zone” Theory
To prove attempted murder, the prosecution must establish “the
specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th
613, 623.) When a single act is charged as an attempt on the lives of two or
more persons, the intent to kill element must be established independently as
to each alleged victim. (People v. Windfield (2021) 59 Cal.App.5th 496, 514
(Windfield).)
The nature of the attack directed at a primary victim may support an
inference that the defendant intended to ensure he killed that person by
killing everyone in the vicinity. The textbook example is where the
defendant places a bomb on a commercial airplane, intending to kill one
primary target by a method sure to kill all on board. (People v. Bland (2002)
28 Cal.4th 313, 329‒330.) Under this “kill zone” theory, “ ‘a shooter may be
convicted of multiple counts of attempted murder . . . where the evidence
26
establishes that 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.’ ” (Canizales, supra,
7 Cal.5th at p. 608.)
At the People’s request, the court instructed the jury with former
CALCRIM No. 600, which at the time of trial stated:
“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 a
defendant of the attempted murder of Joseph Luna, Juan
Coronado, or Alberto Nava, the People must prove that the
defendant not only intended to kill Angel Sanabria, but also
either [sic] intended to kill everyone within the kill zone.”
1. The Court’s Kill Zone Instruction Was Prejudicially Erroneous.
During the pendency of these appeals, the Supreme Court reexamined
the kill zone theory in Canizales with the goal of “more clearly defining” it.
(Canizales, supra, 7 Cal.4th at p. 606.) That case arose out of a gang-related
shooting at a neighborhood block party. Shots were fired from a nine-
millimeter gun from between 100 and 160 feet away, killing a bystander but
missing the intended targets, two men whom Canizales had argued with
earlier in the day. (Id. at p. 611.) At Canizales’s trial for the bystander’s
murder and attempted murders of the two men, the court instructed the jury
on the kill zone theory. (Id. at pp. 600–601.) Canizales was found guilty of
murder and two counts of attempted murder. (Id. at pp. 597, 601.)
On review, the Supreme Court first discussed how “past cases reveal
there is a substantial potential that the kill zone theory may be improperly
applied.” (Canizales, supra, 7 Cal.5th at p. 597.) The court held that “the kill
zone theory for establishing the specific intent to kill required for a conviction
of attempted murder may be properly applied only when a jury concludes:
27
(1) the circumstances of the defendant’s attack on a primary target are such
that the only reasonable inference is that the defendant intended to create a
zone of fatal harm—that is, an area in which the defendant intended to kill
everyone present to ensure the primary target’s death”; and “(2) the alleged
attempted murder victim who was not the primary target was located within
that zone of harm.” (Id. at p. 607.) Canizales also identified factors a jury
should consider in making these determinations:
“In determining the defendant’s intent to create a zone of
fatal harm and the scope of any such zone, the jury should
consider the circumstances of the offense, such as the type
of weapon used, the number of shots fired (where a firearm
is used), the distance between the defendant and the
alleged victims, and the proximity of the alleged victims to
the primary target. Evidence that a defendant who intends
to kill a primary target acted with only conscious disregard
of the risk of serious injury or death for those around a
primary target does not satisfy the kill zone theory.”
(Canizales, supra, 7 Cal.5th at p. 607.)
Turning to the facts before it, the Supreme Court concluded there was
insufficient evidence to warrant giving the kill zone instruction. (Canizales,
supra, 7 Cal.5th at pp. 609‒611.) The shooter was between 100 and 160 feet
away from the primary target, and the shots were fired at an outdoor block
party on a “wide city street” with easy escape routes. (Id. at pp. 599, 611.)
The primary target fled down the street in the opposite direction after the
first shot. (Id. at p. 611.) The court concluded that “the evidence . . . was not
sufficient to support a reasonable inference that [the] defendants intended to
create a zone of fatal harm around a primary target.” (Ibid.) It further
stated that former CALCRIM No. 600—the same instruction given by the
trial court here—“should be revised to better describe the contours and limits
28
of the kill zone theory as we have laid them out here.” (Canizales, at
p. 609.)17
Defendants in this case contend—and the Attorney General agrees—
that the attempted murder convictions should be reversed because not having
the benefit of Canizales, the trial court gave a legally inadequate kill zone
instruction. We accept the concession. The instruction given, former
CALCRIM No. 600, did not explain the People’s burden to prove that the
“only” reasonable conclusion from Defendants’ use of lethal force is that they
intended to create a kill zone. Nor did the instruction direct the jury’s
attention to the factors Canizales identifies as being particularly relevant in
reaching that conclusion.
2. Defendants May Be Retried on a Kill Zone Theory with Proper
Instructions.
We next turn to whether the attempted murder convictions are
supported by substantial evidence. Defendants raise this issue because the
People are permitted to retry them on these charges only if sufficient
evidence was presented in the first trial to support them. (See Millbrook,
supra, 222 Cal.App.4th at p. 1149.)
We conclude that sufficient evidence was presented that would support
the attempted murder convictions. “The very fact that [Defendants] created a
hail of bullets at close range to two individuals” who were within a few feet of
each other as well as Sanabria (the target) “is the very definition of creating a
kill zone.” (Windfield, supra, 59 Cal.App.5th at p. 518.) Moreover,
Defendants fired the 21 shots into a small space enclosed on three sides. And
they fired so rapidly that the victims had little chance of escape. In closing
17 In response to Canizales, CALCRIM No. 600 has now been revised.
29
argument, the prosecutor focused the jury’s attention on these very factors,
explaining:
“They were in what was a kill box. A kill zone. And it was
a small place. It was a confined space. I believe the
testimony was like seven feet by fourteen feet. And if that
wasn’t enough, it was crowded by that sofa which made it
even more narrow. It was dense with men. And you got to
see the picture of that.
“Mr. Coronado’s and Mr. Sanabria’s picture itself shows
how crowded it was in that small space. And it was
confined on all sides but one. It was a guaranteed hit for
these two. They didn’t have to aim[;] they could point and
shoot. They could use rapid fire and point and shoot to kill
them all, and that’s what they did.”
In urging the evidence is insufficient, Defendants primarily rely on
People v. Cardenas (2020) 53 Cal.App.5th 102, which they contend “involved
remarkably similar facts.” We disagree; the case is factually quite different.
In Cardenas, the shooting occurred in two distinct phases, which the court
analyzed separately. (Id. at p. 114.) During the first phase, the target
(Armando) was standing 15 feet directly in front of the shooter, Cardenas.
But “[n]o one else was standing next to Armando when those shots were
fired.” (Ibid.) A bystander, Juan, was struck by a bullet, but he was at least
one car length behind Armando, and the manner in which Cardenas fired his
gun did not show he was attempting to create a zone of fatal harm around
Armando. Rather, “he pointed the gun in the direction of the target,
Armando, and fired two shots from close range.” (Ibid.) Accordingly, the
Court of Appeal determined there was insufficient evidence from which a jury
could conclude that even a reasonable inference, “let alone the only
reasonable inference was that during the first phase of the attack, Cardenas
intended to create a kill zone in order to kill Armando.” (Ibid.)
30
In the second phase, Cardenas retreated. This took him farther away
from Armando’s group, and resulted in parked vehicles obstructing his line of
fire. One shell casing was found 40 feet away from where the group was
seeking cover by a vehicle. (Cardenas, supra, 53 Cal.App.5th at p. 115.) The
appellate court concluded there were “numerous alternative reasonable
inferences, such as that Cardenas’s intention in continuing to fire while
retreating was just to facilitate his escape.” (Ibid.)
The evidence here is materially different. Indeed, Canizales itself
distinguished cases like this one involving multiple defendants who fire a
“ ‘ “flurry of bullets” ’ ” in “close proximity to the area surrounding their
intended target.”18 (Canizales, supra, 7 Cal.5th at pp. 610‒611.) Because we
conclude the evidence was sufficient to support a finding beyond a reasonable
doubt that defendants intended to kill Luna and Coronado inside a “kill
zone,” they may be retried on those two counts of attempted murder. (See
People v. Towler (1982) 31 Cal.3d 105, 118.) If they are retried, it will be for
the jury, properly instructed after it hears all the relevant facts, to decide in
the first instance which inferences are reasonable and which are not.
18 The evidence supporting a kill zone instruction here stands in stark
contrast to the facts in Canizales—where the shooter fired from between 100
to 160 feet away on a city street with open escape routes.
31
DISPOSITION
Except with respect to counts upon which the jury returned a verdict of
acquittal, the judgments are reversed and the matters remanded for a new
trial.
DATO, J.
WE CONCUR:
HALLER, Acting P. J.
DO, J.
32