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People v. Stone

April 23, 2009


Kings County Ct.App. 5 F051812 Super. Ct. No. 05CM4433 Judge: Peter M. Schultz.

The opinion of the court was delivered by: Chin, J.

Can a person who shoots into a group of people, intending to kill one of the group, but not knowing or caring which one, be convicted of attempted murder? Yes. The mental state required for attempted murder is the intent to kill a human being, not a particular human being.


We take our facts primarily from the Court of Appeal's opinion. Around 8:30 p.m. on the evening of October 21, 2005, Officer Mark Pescatore was on duty with two other police officers at a parking lot carnival in Lemoore. Officer Pescatore observed a group of 10 to 25 youths blocking the pathways and moving about the carnival area. About half of those in the group were wearing red, a color associated with Norteno street gangs. One of the officers believed the group was "looking for trouble." The group included 16-year-old Joel F. as well as "Jamal," a Norteno gang member. Sixteen-year-old Camilo M., a member of a Sureno street gang, and his friend Abel Rincon were also at the carnival.

Several members of the Norteno gang called Camilo "scrapa," a derogatory term for a Sureno, and challenged him and Rincon to fight. Camilo and Rincon decided not to fight and left the carnival. A group of Nortenos followed them, and Jamal kicked Rincon's truck as Rincon and Camilo drove away. Camilo and Rincon returned home and told several people, including defendant, what had happened at the carnival. A short time later, Camilo and Rincon and others, including defendant, returned to the carnival in Rincon's truck. Rincon drove. Defendant sat on the passenger side of the truck.

Meanwhile, at the carnival, the police directed the Norteno group to leave, and about 10 of them went to a grassy area in the parking lot. When Rincon and his companions returned to the carnival, Rincon drove his truck past the group of Nortenos twice. On the third pass, he stopped the truck 10 to 15 feet from the group and held up three fingers, denoting a gang sign. Defendant rolled down his passenger window, pulled out a gun, and fired it. The truck then left the scene. Officer Pescatore, who was about 60 feet away, observed "an arm come out of the passenger window, and then saw a muzzle flash and heard a gunshot." He described the arm as "pointing straight out the window" at a group of individuals on the grassy island in the parking lot, about four to five feet away.

Joel F. testified that the gun in defendant's hand was "pointed up" slightly and extended toward the group when he fired. Joel did not think defendant had pointed the gun at anyone in particular, but he said that when the gun was fired, he ducked because he was worried about being shot. The group "scattered" and "[e]veryone kind of ducked." Joel testified that the gun had not been pointed "directly" at him, but it was "near" him. Joel also expressed the belief that the gun was fired "[j]ust to scare us. I don't really think he was trying to shoot anybody."

As relevant here, a jury found defendant guilty of one count of attempted premeditated murder (Pen. Code, §§ 187, 664) and found true personal use of a firearm and criminal street gang enhancement allegations (Pen. Code, §§ 186.22, subd. (b), 12022.53, subd. (b)). The information had alleged that Joel F. was the attempted murder victim. The court sentenced defendant to state prison, and he appealed.

The Court of Appeal reversed the attempted murder conviction and related enhancement findings. It concluded that the trial court prejudicially misinstructed the jury on the intent requirement of attempted murder. Additionally, it found insufficient evidence to support the attempted murder conviction and, citing People v. Seel (2004) 34 Cal.4th 535, 544, it prohibited retrial on that count. It agreed with defendant that the evidence was insufficient "because it establishes, at most, that when he fired his single shot at the group of Nortenos, [defendant] intended to kill someone but not specifically Joel F. and not everyone in the group." It found "not a scintilla of evidence to distinguish Joel F. from any member of the group as a desired victim of [defendant's] fire."

We granted the Kings County District Attorney's petition for review.


Defendant was charged with and convicted of a single count of attempted murder for firing a single shot at a group of 10 people. "Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.) The main issue before us on review concerns the nature of the intent-to-kill requirement. Specifically, the question is whether the intent must be to kill a particular person, or whether a generalized intent to kill someone, but not necessarily a specific target, is sufficient.

Preliminary, we must explain how this question arises in this case. The information specifically alleged that Joel F. was the attempted murder victim. The trial court instructed the jury on a particular theory of attempted murder, discussed in People v. Bland (2002) 28 Cal.4th 313 (Bland). Because Bland is central to the question here, we discuss it in detail.

In Bland, supra, 28 Cal.4th 313, the defendant and a cohort fired multiple shots at three persons in a car, killing the driver and injuring, but not killing, the two passengers. The defendant was convicted of murdering the driver and of attempting to murder the two passengers. The evidence supported a jury finding that the defendants intended to kill the driver, i.e., the one actually killed, but did not specifically target the two who survived. (Id. at p. 319.) We explained that a person who intends to kill is guilty of the murder of everyone actually killed, whether or not the person intended to kill each one. "[A] person maliciously intending to kill is guilty of the murder of all persons actually killed." (Id. at pp. 323-324.) But we also held that situation is different concerning attempted murder. "The crime of attempt sanctions what the person intended to do but did not accomplish, not unintended and unaccomplished potential consequences." (Id. at p. 327.) We summarized the rule that applies when an intended target is killed and unintended targets are injured but not killed. "Someone who in truth does not intend to kill a person is not guilty of that person's attempted murder even if the crime would have been murder . . . if the person were killed. To be guilty of attempted murder, the ...

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