Super. Ct. Nos. SF103743A, SF103743B
The opinion of the court was delivered by: NICHOLSONActing P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Jairo Soto and Juan Antonio Daniel Torres, Sureno gang members, went on a shooting spree in Stockton with a .22-caliber rifle. Their targets were young men they suspected of being Norteno gang members. One of the intended targets, Pablo Hernandez, was shot through the heart and died.
Torres was convicted of one count of first degree murder with special circumstances, seven counts of premeditated attempted murder, three counts of shooting a firearm from a motor vehicle, and one count of street terrorism. Soto was convicted of one count of first degree murder with special circumstances, four counts of premeditated attempted murder, two counts of shooting a firearm from a motor vehicle, one count of street terrorism, and one count of possession of a firearm by a felon. Various firearm and gang enhancements were also found to be true.
Torres, 14 years old at the time of the shootings, was sentenced to three consecutive life terms, plus two consecutive terms of 25 years to life, plus a consecutive determinate term of 70 years 8 months in prison. Soto, 19 years old at the time of the shootings, was sentenced to a term of life imprisonment without the possibility of parole, plus a consecutive term of 25 years to life, plus two consecutive life terms, plus a consecutive determinate term of 61 years 4 months in prison.
On appeal, they raise several claims of error, including the claim that the trial court improperly instructed their respective juries with CALCRIM No. 600 on the "kill zone" theory of attempted murder when each of the shootings involved only a single shot. As we shall explain, we agree that the juries in this case were incorrectly instructed on the "kill zone" theory, such that they could have convicted defendants of the attempted murders of alleged secondary victims without finding that they harbored the concurrent intent to kill these victims. Accordingly, we must reverse four of Torres's attempted murder convictions and two of Soto's attempted murder convictions. We also reverse one of Torres's attempted murder convictions because it is not supported by substantial evidence. Several sentencing errors must also be corrected. The judgments are otherwise affirmed.
Defendants Soto and Torres, and Torres's brother Daniel, drove through Stockton with a .22-caliber rifle and fired three separate shots at two groups of young men they believed to be Norteno gang members. On a separate occasion, Torres and Daniel drove past another group of suspected Nortenos and fired one shot at this group. Torres was 14 years old at the time of the shootings and a member of the "Vickystown Surenos." Soto was 19 years old at the time of the shootings and a member of a Sureno gang from Los Angeles called the "Cyclone Buddies." As Soto explained to detectives following the shootings, opening fire on Nortenos is simply "what a Sureno does."
South Lincoln Street Shooting (Counts 11 through 14)
In February 2007, Matthew Mejia, his brother Eric Mejia, and their friend Eddie Rivera were eating ice cream in front of the Mejia house on South Lincoln Street, waiting for the local high school to get out so they could flirt with the girls who walked past the house. Rivera was wearing a red hooded sweatshirt and associated with Nortenos. The color red is prominently worn by Norteno gang members. As the young men enjoyed their ice cream, Matthew saw a green Nissan Pathfinder drive past the house; Torres was driving and his brother Daniel was in the front passenger seat. As the vehicle passed the house, Torres and Daniel gave Rivera and the Mejia brothers "a mean mug," which gave Matthew "a bad feeling they were going to turn back around and do something." Matthew warned Eric and Rivera of the perceived danger and the three began to walk back to the house.
Matthew's instincts were correct. The Pathfinder turned around and stopped in front of the house just as Matthew and Rivera reached the front door. Eric was roughly five or six feet behind Matthew and Rivera and, seeing the driver of the Pathfinder pull out a rifle, hid behind one of the posts supporting the front porch. Torres yelled, "What are you guys looking at?" He then fired one shot at the young men. The bullet hit Matthew between the shoulder blades as he was trying to follow Rivera into the house, injuring his spinal cord and resulting in paralysis.
With respect to this shooting, Torres was convicted of three counts of premeditated attempted murder (counts 11 through 13) and one count of shooting a firearm from a motor vehicle (count 14).
South Sierra Nevada Street Shooting (Counts 8 through 10)
In March 2007, Soto, Torres and Daniel drove past Donasiano Ortega's house on South Sierra Nevada Street in the same green Pathfinder involved in the previous shooting. Torres drove, while Soto occupied the front passenger seat, and Daniel sat in the back.
Ortega was on the driveway in front of his house talking to his friend Neto when the Pathfinder approached from the north. As the vehicle passed Ortega and Neto, Soto leaned out of the passenger window pointing a rifle and fired one shot at the men. Fortunately, no one was hit by the bullet. Both Ortega and Neto had long hair at the time of the shooting, which was consistent with the hair style worn by Nortenos, and Ortega confirmed that Neto was a Norteno.
With respect to this shooting, both Torres and Soto were convicted of one count of premeditated attempted murder (count 8) and one count of shooting a firearm from a motor vehicle (count 9). Soto was also convicted of possession of a firearm by a felon (count 10).
South Airport Way Shootings (Counts 1 through 4, 6 and 7)
After the shooting on South Sierra Nevada Street, the threesome continued on their search for Nortenos. As the Pathfinder approached the Highway 4 overpass on South Airport Way, they came across Pablo Hernandez and Pablo Ibarra. Hernandez was wearing a red belt, had a red bandana hanging from his back pocket, and associated with Norteno gang members. Ibarra was not wearing any red clothing, but was once a member of a Norteno gang called the "Loc'd Out Ene's" and had Norteno related tattoos.
Hernandez and Ibarra were walking north on South Airport Way, on the left side of the street, when the Pathfinder approached them from the north. The vehicle stopped just past the men, and one of the occupants yelled, "Let's get these." Daniel, the rear passenger, then passed the rifle to Soto in the front passenger's seat, and Soto fired a shot at Hernandez and Ibarra. Soto missed. When the shot was fired, Ibarra was standing closest to the street; Hernandez was standing to the left of Ibarra and slightly ahead of him, just out of arm's reach.
The Pathfinder drove off, continuing south, and made the first available right turn. Hernandez and Ibarra continued walking north. When they reached the intersection of South Airport Way and East Washington Street, just past the Highway 4 overpass, Hernandez and Ibarra again saw the Pathfinder. The vehicle again approached from the north, but this time made a right turn onto East Washington Street and pulled over so that the driver's side window was facing Hernandez and Ibarra's position on the southwest corner of the intersection. Torres fired the rifle from the driver's side window and then drove off. When this shot was fired, Hernandez was to the left and roughly five feet ahead of Ibarra. The bullet pierced Hernandez's left lung and heart, grazing the right lung. Hernandez and Ibarra were able to continue through the intersection before Hernandez collapsed on the other side of the street. Hernandez died a short time later.
With respect to these shootings, Soto and Torres were convicted of one count of premeditated first degree murder with special circumstances (count 1), three counts of premeditated attempted murder (counts 2 through 4), one count of shooting a firearm from a motor vehicle (count 6), and one count of street terrorism (count 7).
Both Soto and Torres assert that the trial court prejudicially erred by instructing their respective juries with CALCRIM No. 600 regarding the "kill zone" theory of attempted murder. While neither defendant objected to this instruction at trial, this claim of error is "reviewable on appeal to the extent it affects [their] substantial rights. [Citation.]" (People v. Slaughter (2002) 27 Cal.4th 1187, 1199 (Slaughter); People v. Prieto (2003) 30 Cal.4th 226, 247.) Accordingly, "to the extent this claim of instructional error is meritorious and contributed to [their convictions], we will review it." (People v. Gamache (2010) 48 Cal.4th 347, 375, fn. 13.)
We need not decide whether the "kill zone" theory applies in a single-shot case because, even if it does, both juries were incorrectly instructed on the theory. Because it is reasonably probable that this error contributed to Torres's convictions for the attempted murders of Ibarra (counts 2 and 4), Eric (count 12), and Rivera (count 13), and Soto's convictions for the attempted murders of Ibarra (counts 2 and 4), we reverse these convictions.
A Torres was convicted of three counts of attempted murder based on the single shot fired at Rivera and the Mejia brothers on South Lincoln Street (counts 11 through 13). Soto and Torres were also convicted of three counts of attempted murder based on the two separate shots fired at Hernandez and Ibarra on South Airport Way (counts 2 through 4). The People relied on the so-called "kill zone" theory of concurrent intent in support of these convictions.
The mental state required for attempted murder differs from that required for murder. Murder requires malice, express or implied. Express malice, i.e., intent to kill, requires a showing that the defendant either desired the death of the victim, or knew to a substantial degree of certainty that death would occur. (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) Implied malice simply requires a showing that the defendant consciously disregarded human life. (People v. Lasko (2000) 23 Cal.4th 101, 107.) Attempted murder requires express malice; a conscious disregard for life will not suffice to support a conviction for attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 327-328 (Bland).) However, "a person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind." (People v. Stone (2009) 46 Cal.4th 131, 140 (Stone).) And as our Supreme Court clarified in People v. Perez (2010) 50 Cal.4th 222 (Perez), a person who "indiscriminately fires a single shot at a group of persons with specific intent to kill someone, but without targeting any particular individual or individuals, . . . is guilty of a single count of attempted murder. [Citation.]" (Id. at p. 225, original italics; Stone, supra, 46 Cal.4th at p. 141.)
Another difference between murder and attempted murder involves the doctrine of transferred intent. "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 -- due to transferred intent -- if the person were killed. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant's mental state must be examined as to each alleged attempted murder victim. Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others." (Bland, supra, 28 Cal.4th at p. 328; Perez, supra, 50 Cal.4th at p. 232; Stone, supra, 46 Cal.4th at p. 141 ["'guilt of attempted murder must be judged separately as to each alleged victim'"].)
The "kill zone" theory of concurrent intent applies to the situation in which the defendant, with the intent to kill a specific target, employs a means of attack designed to kill everyone in the vicinity of the target in order to ensure the death of the target. In such a situation, the defendant creates a "kill zone" around the target, and the jury may reasonably infer that defendant possesses the concurrent intent to kill everyone within the kill zone. (Bland, supra, 28 Cal.4th at pp. 326-327, 329-330.) "'The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity. For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim.'" (Id. at pp. 329-330, quoting with approval Ford v. State (1993) 625 A.2d 984, 1000-1001; see also People v. Vang (2001) 87 Cal.App.4th 554, 563-564.)
In accordance with these principles, CALCRIM No. 600 provides in relevant part: "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 [alleged victim charged in attempted murder count[s] on concurrent-intent theory], the People must prove that the defendant not only intended to kill [alleged primary target] but also either intended to kill [alleged 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 [alleged victim charged in attempted murder count[s] on concurrent-intent theory] or intended to kill [alleged primary target] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of [alleged victim charged in attempted murder count[s] on concurrent-intent theory]."
B Both Torres and Soto assert that the trial court incorrectly instructed their juries on the "kill zone" theory. Specifically, Torres contends that the trial court should have "clearly designate[d] the primary target in each incident and the secondary victims," rather than "combin[ing] all the incidents, counts and named victims in one hodgepodge of ambiguity." Similarly, Soto contends that "the instruction actually given by the court was clumsily worded and difficult to understand." We agree.
The Soto jury was instructed on the kill zone theory as follows: "In order to convict [Soto] of the attempted murder of Pablo Ibarra in Counts 2 and 4, [and] Pablo Hernandez in Count 3, the People must prove that [Soto] not only intended to kill Pablo Hernandez but also either intended to kill Pablo Hernandez or intended to kill anyone within the kill zone. [¶] If you have a reasonable doubt whether [Soto] intended to kill Pablo Hernandez or intended to kill Pablo Hernandez or intended to kill anyone in the kill zone, then you must find [Soto] not guilty of the attempted murder of Pablo Ibarra." (Italics added.)
As we have already explained, CALCRIM No. 600 provides in pertinent part: "In order to convict the defendant of the attempted murder of [the alleged secondary victim], the People must prove that the defendant not only intended to kill [the alleged primary target] but also either intended to kill [the ...