People v. Perez

WERDEGAR, J., Concurring.

I concur in the judgment and in the majority’s conclusion that defendant’s single discharge of a handgun was insufficient to support more than one conviction for attempted murder. I write separately to note my disagreement with the majority’s attempt to distinguish People v. Smith (2005) 37 Cal.4th 733 [ 37 Cal.Rptr.3d 163 , 124 P.3d 730 ] (Smith), in which I dissented. In my view, Smith does not meaningfully differ from the present case, and the majority’s attempt to find a distinction results in an unsupportable de facto rule that a single gunshot may of itself give rise to multiple attempted murder convictions provided the alleged victims were all “ ‘in [the defendant’s] direct line of fire.’ ” (Maj. opn., ante, at p. 233.) Taken together, today’s decision and Smith allow multiple convictions for *235 victims positioned “in the line of fire,” whether or not any evidence shows the defendant intended his single shot to strike and kill all the victims or even believed it could, and whether or not in the circumstances a single round from the weapon used had any realistic potential to do so. The root of this novel thinking is in Smith, which should be overruled rather than distinguished.

A conviction for attempted murder requires both the intent to kill another person and a direct but ineffectual act toward doing so. (People v. Lee (2003) 31 Cal.4th 613, 623 [ 3 Cal.Rptr.3d 402 , 74 P.3d 176 ].) When the evidence shows a single shot fired in the direction of a group of people, so that the bullet could, in the ordinary course of events, have struck and killed any one of them (but only one), the jury can rationally find the defendant committed a direct act toward killing one person. (See People v. Welch (1972) 8 Cal.3d 106, 118 [ 104 Cal.Rptr. 217 , 501 P.2d 225 ] [to constitute an attempt, an act must be such “ 1 “as would ordinarily result in the crime” ’ ” if not for an interruption or other failure preventing completion].) Where, as in Smith , the evidence shows as well a motive to kill one identifiable member of a group (or pair), an inference of intent to kill that particular person arises, and a conviction for attempted murder of that person is proper. (See Smith, supra, 37 Cal.4th at pp. 752-753 (dis. opn. of Werdegar, J.).) And where, as here, the evidence shows an undifferentiated but potentially lethal hostility to all members of the group, an inference of an intent to kill any one person in the group arises, and a single count of attempted murder charged in that manner is proper. (Maj. opn., ante, at pp. 233-234; People v. Stone (2009) 46 Cal.4th 131, 140-142 [ 92 Cal.Rptr.3d 362 , 205 P.3d 272 ].) But in none of the described situations does evidence of a single gunshot, without more, establish either a direct act toward the killing of more than one person or the specific intent to kill multiple victims.

Of course, cases occur where the nature and scope of the attack show an intent to kill everyone within a particular area or group, and the attack constitutes a direct act toward that goal. These are the so-called “kill zone” cases. (See People v. Bland (2002) 28 Cal.4th 313, 329-331 [ 121 Cal.Rptr.2d 546 , 48 P.3d 1107 ]; see also People v. Stone, supra, 46 Cal.4th at p. 140 [the kill zone theory is not dependent on the assailant’s having an identifiable primary target].) Examples include the use of explosive devices, the spraying of automatic or semiautomatic weapon fire into a location or group, and the introduction of poisoned food into a household. (See Bland , at pp. 329-331.) But Smith was not a kill zone case, and neither is this one. (Maj. opn., ante, at p. 232; Smith, supra, 37 Cal.4th at pp. 745-746.)

So too, a single discharge of a firearm might, in some circumstances, support findings the defendant intended to kill multiple victims and committed a direct act toward doing so. If the defendant’s marksmanship and his *236 choice of weapon and ammunition were such that a single shot would ordinarily kill two or more victims, and if the defendant were aware of that probability, both the actus reus and mens rea of attempted murder would arguably be satisfied. But in Smith , as here, the evidence showed neither that the defendant’s single gunshot could, in the ordinary course of events, be expected to strike and kill more than one victim, nor that Smith intended such an exceptional result. It will be a rare case in which the People can prove an assailant intended to shoot and kill person B by shooting through and killing person A, and no such proof was offered in Smith , any more than it was here.

Despite the lack of evidence that the defendant in Smith was capable, and knew himself to be capable, of killing both victims with a single shot, the present majority characterizes the Smith facts—unlike the facts here—as sufficient to support two convictions of attempted murder because both alleged victims, a mother and her infant child, were “ ‘in [the defendant’s] direct line of fire.’ ” (Maj. opn., ante, at p. 233, quoting Smith, supra, 37 Cal.4th at p. 745.) As my dissenting opinion in Smith observed, the evidence actually was to the contrary: the baby, who was in an infant car seat behind his mother, was positioned well below the line of Smith’s apparent aim at the mother’s head. (See Smith , at p. 757, fn. 3 (dis. opn. of Werdegar, J.).) But even evidence the victims were positioned so that a single bullet could physically have struck and killed them both would not, by itself, support inferences that the defendant’s single shot was intended to, and in the ordinary course of events was expected to, have that result. Without such inferences in Smith , neither the mens rea nor the actus reus for two counts of attempted murder was proven.

My purpose is not merely to reopen the debate on Smith , but to point out the consequences of perpetuating that decision’s error in the present case. Because the majority’s only factual distinction between the two cases is the positioning of the victims—assertedly in the “ ‘line of fire’ ” in Smith , but apparently not so here (maj. opn., ante, at pp. 232-233)—prosecutors in future attempted murder cases can be expected to argue that multiple victims were positioned so that a single gunshot could have hit them all, even though evidence may be entirely lacking that the defendant’s gunshot was objectively likely, or subjectively expected, to hit more than one person. Appellate courts, in turn, will use the same criterion in deciding whether the evidence was sufficient for multiple convictions. The number of convictions arising from a single shooting will thus come to depend not on whether the defendant was proven to have intended to shoot and kill more than one person and to have committed an act that would ordinarily have had that result if not for bad aim or other failure, as previously required, but on the victims’ precise positions at the time of the shooting. The result will be multiple convictions arbitrarily returned and upheld in cases where the evidence established neither the mens rea nor the actus reus for more than one count of attempted murder.

*237 For this reason, Smith should be overruled instead of distinguished.

Moreno, J., concurred.