APPEAL from the judgments of the Superior Court of Los Angeles County. Marc C. Kim, Judge. (Los Angeles County Super. Ct. No. BA331910-2) (Los Angeles County Super. Ct. No. BA331910)
The opinion of the court was delivered by: Rothschild, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part and reversed in part.
Defendants Izac McCloud and Jonzel Stringer fired 10 shots from a semiautomatic handgun at a party at which over 400 people were present. Three bullets struck three victims, killing two and injuring the third. The seven remaining bullets hit no one.
McCloud and Stringer were charged by grand jury indictment with two counts of murder and 60 counts of attempted murder, 14 of which were later dismissed. Defendants were tried together but before separate juries, which convicted both defendants of second degree murder for the two deaths, convicted Stringer of all 46 counts of attempted murder, and convicted McCloud of 46 counts of the lesser included offense of assault with a firearm.
In the published portion of our opinion, we conclude that the trial court prejudicially erred by instructing the jury on the "kill zone" theory of attempted murder. The record contains no evidence to support application of the kill zone theory.
Also in the published portion of our opinion, we conclude that the evidence is insufficient to sustain 46 attempted murder convictions. Rather, the evidence is sufficient to support only eight attempted murder convictions.
Defendants also raise a number of other issues, which we address in the nonpublished portion of our opinion; we conclude that most of them lack merit. We accordingly reverse in part, affirm in part, and remand for further proceedings.
The grand jury indictment charged McCloud and Stringer with the murders of Breon Taylor (count 1) and Dennis Moses (count 2), in violation of Penal Code section 187.*fn2 It further charged McCloud and Stringer with the attempted willful, deliberate, and premeditated murders of Ryan Gaines (count 3) and 59 other named victims (counts 4 through 62), in violation of sections 187 and 664. The indictment also alleged as to each count that a principal was armed within the meaning of section 12022, subdivision (a)(1), and that McCloud personally used a firearm, personally and intentionally discharged a firearm, and personally and intentionally discharged a firearm causing great bodily injury or death within the meaning of section 12022.53, subdivisions (b), (c), and (d). In addition, as to counts 1 and 2, the indictment alleged the special circumstance of multiple murder within the meaning of section 190.2, subdivision (a)(3), and as to count 3 it alleged that McCloud inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
McCloud and Stringer pled not guilty and denied the allegations. On motion of the prosecution, the court dismissed 12 of the attempted murder counts (counts 7, 18, 19, 20, 22, 23, 37, 39, 44, 45, 53, and 61) pursuant to section 1385, and the court later dismissed two additional counts of attempted murder (counts 13 and 58) pursuant to section 1118.1.
The charges against both defendants were tried together but to separate juries. Jury selection (starting with the Stringer panel) began on July 12, 2010. The McCloud panel began deliberations on September 9, 2010, and returned its verdict September 16, 2010. The Stringer panel began deliberations on September 13, 2010, and returned its verdict on September 21, 2010.
McCloud's jury found him not guilty of first degree murder but guilty of second degree murder on counts 1 and 2. The jury also found McCloud not guilty of attempted murder but guilty of assault with a firearm (a lesser included offense) on the remaining 46 counts. As to counts 1 and 2, the jury found true all of the personal use of a firearm allegations under section 12022.53, and as to each of the remaining counts, the jury found true the allegation that McCloud personally used a firearm within the meaning of section 12022.5, subdivision (a).
Stringer's jury deadlocked on first degree murder as to counts 1 and 2, so the prosecution elected not to pursue first degree murder convictions on those counts. After the court instructed the jury to that effect, the jury found Stringer guilty of second degree murder on counts 1 and 2 and guilty of attempted murder on the remaining 46 counts. The jury also found true the principal armed allegation as to all counts, but, as to each attempted murder count, the jury found not true the allegation that the attempted murder was willful, deliberate, and premeditated.
The court sentenced McCloud to 202 years to life in state prison, calculated as follows: 15 years to life as to count 1, plus 25 years to life for the firearm allegation as to that count; plus an identical sentence as to count 2; plus the upper term of four years as to count 3, plus three years for the great bodily injury allegation, plus 10 years for the personal use of a firearm allegation under section 12022.5, subdivision (a); plus one-third of the midterm of three years, plus 16 months for the personal use of a firearm allegation under section 12022.5, subdivision (a), as to each of the remaining 45 counts, with all sentences to run consecutively. The court also imposed various statutory fines and fees.
The court sentenced Stringer to 198 years to life in state prison, calculated as follows: 15 years to life as to count 1, plus three years for the principal armed allegation as to that count; plus an identical sentence as to count 2; plus the upper term of nine years as to count 3, plus three years for the principal armed allegation as to that count; plus 28 months (one-third of the mid-term of 84 months), plus 12 months for the principal armed allegation, for each of the remaining 45 counts, with all sentences to run consecutively. The court also imposed various statutory fines and fees.
Both defendants timely appealed. We hereby order the appeals consolidated.
The tragic events underlying the charges took place on January 19, 2008, at a Masonic Lodge in Lakewood, at the eighteenth birthday party of twin brothers Randall and Carlton Hook. The Hook twins were founding members of an anti-gang social group called the "Acrites" (derived from the words "act right"), whose origins Randall Hook described as follows: "My friends and I started it because we chose--we specifically chose that term because there was and still is the misconception that inner city youth, especially African-American adolescents from Compton in particular--that we are troublemakers. So we wanted to counter that idea. And so we started the group to show that we could be from Compton, but we didn't necessarily have to be bad kids."
The Hook family took numerous steps to promote safety and avoid trouble at the party: They held the party at a Masonic Lodge next to a church, hired security guards, served no alcohol, and charged $10 for admission as a means of screening and controlling the flow of guests.
The party was well attended, with hundreds of people packed "elbow to elbow" inside and many more in line in the parking lot, waiting to enter.*fn3 Lewis Hook, the twins' father, eventually concluded that the party had gotten too large and "was not a controllable situation," and he decided "to shut the party down." As he was on his way to announce that the party was over, gunshots rang out, a window shattered, and the shooting continued as frantic partygoers attempted to flee.
Police responding to the scene found three victims who had been shot while inside the lodge. Dennis Moses was killed by a single shot to the head. Breon Taylor was killed by a single shot to the head as well. Ryan Gaines was shot once in the leg.
Investigating officers found 10 nine-millimeter shell casings outside in the parking lot but found no evidence of shots having been fired inside the lodge. After examining the casings, the police criminalist determined that they were all fired from the same weapon. He testified that the "most common" magazine size for a nine-millimeter handgun is "ten cartridges per magazine," though he acknowledged that higher-capacity magazines exist. The lead investigating officer likewise testified that "the public is allowed to buy up to . . . a magazine that holds ten," which is "commonly available to the public," but "[l]aw enforcement can buy a larger capacity magazine."
The criminalist concluded that the bullets recovered from Moses, Taylor, and Gaines were all fired from a nine-millimeter semiautomatic firearm, and that the bullets recovered from Moses and Taylor were fired from the same firearm. The bullet recovered from Gaines was too damaged for the weapon to be as conclusively identified, but the criminalist testified that "more likely than not" it was fired from the same firearm as the bullets recovered from Moses and Taylor. The criminalist also discovered "pitting" and the presence of a "glistening powdery substance" on the surface of the bullets recovered from the bodies of Moses, Taylor, and Gaines, and he concluded on that basis that those three bullets had passed through glass before striking the victims. Investigating officers identified five bullet strike marks on the exterior wall of the lodge near the broken window and two bullet holes in a car in the parking lot. All 10 bullets from the 10 casings were thus accounted for: two struck the car, five struck the wall, and three passed through the window and struck and lodged in Moses, Taylor, and Gaines. The gun itself was never found.
C. The Identification Evidence
Peter Adams was the only eyewitness who claimed to have seen Stringer at the party and to have seen McCloud fire the gun outside.*fn4 When contacted by police immediately after the shooting, Adams said that he did not know or see anything. On the Monday after the shooting, however, Adams told Marcus Egland, a gang intervention specialist at Adams' high school, that he (Adams) "was there when everything happened" and "not only did he see the actual shooting, but he knows who did the shooting." In talking to Egland, Adams referred to Stringer as "JP," but additional information Adams gave to Egland enabled Egland to determine that "JP" was Stringer. Egland testified that Adams told him that he saw McCloud and Stringer become upset after being unable to get into the party, and that Stringer told McCloud "to go to the car and get the gun out and end it," i.e., "[e]nd the party." According to Egland, Adams told him that Stringer "instructed" McCloud to "shoot it up in the air. Just scare 'em." Adams saw McCloud shooting into the party, and Adams was standing sufficiently close that he felt his own life was in danger.
Adams' statements in subsequent interviews with the police were not all consistent, and he admitted having given incorrect information to the police at various times. In a taped interview on February 4, 2008, he told police a version of events that was largely the same as the one he had told to Egland: There was some sort of fight at the party; a companion of McCloud's told McCloud to "[e]nd the party" and "shoot it in the air"; and McCloud retrieved the gun from the car and shot at the party. In his trial testimony, Adams answered "I don't remember" to nearly every question asked, and he specifically denied having told the police who the shooter was. The recording of the February 4, 2008, interview, however, in which Adams told the police that McCloud shot at the party after having been told to "[e]nd the party" and "shoot it in the air," was played for the jury.
Letwan Lucky testified that he had known McCloud for about seven years at the time of the shooting. McCloud sometimes came over to Lucky's house with other friends, including Stringer, whom Lucky knew only as "JP."
In the early afternoon on the day of the shooting, McCloud, Stringer, and another friend named Karon Lofton were at Lucky's house when another individual, known to Lucky only as "Black-T," arrived. Black-T brought with him a semiautomatic handgun, which appeared to Lucky to be "a 9, similar to a Glock." Upon seeing the gun, Stringer and McCloud said they could use it for "protection" at a party they were going to that night in Lakewood. Stringer and McCloud asked Black-T if they could use the gun, and he said they could. Stringer told McCloud to get the gun from Black-T, and McCloud agreed. McCloud, Stringer, Lofton, and Black-T then said they were going home to get dressed for the party and walked out of Lucky's garage into the alley. McCloud and Black-T went in one direction, and Stringer and Lofton in another.
Lucky did not see McCloud again that day, but Stringer returned to Lucky's house later that evening. (Lucky's testimony concerning that encounter with Stringer was presented to Stringer's jury only.) According to Lucky, Stringer seemed "nervous" and "scared" and kept walking in circles and saying "I didn't do it." Once Stringer calmed down, he said that he and McCloud drove to the party, Stringer "walked up to the door to go in, and they socked him in the face," he ran back to the car "hollering 'get 'em,'" got the gun from McCloud, fired two shots, and then handed the gun back to McCloud, who fired six more shots. Stringer and McCloud then got back into the car, and Stringer drove them away from the scene.
Lucky also testified that he spoke with McCloud several days after the party. (Lucky's testimony concerning that conversation with McCloud was presented to McCloud's jury only.) McCloud told Lucky that at the party in Lakewood, Stringer "came running out" after "somebody socked him two times." Stringer said "get 'em," and McCloud fired "[a]bout five or six" shots at the party. Stringer then drove them away. McCloud later sold the gun.
Stringer objected in the trial court to the prosecution's request that the jury be instructed on the kill zone theory of liability for attempted murder. On appeal, he argues that the trial court committed prejudicial error by instructing the jury on the kill zone theory.*fn5 We agree.
"'The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." [Citation.] "It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation]." [Citation.]' (People v. Saddler (1979) 24 Cal.3d 671, 681 [156 Cal.Rptr. 871, 597 P.2d 130].)" (People v. Alexander (2010) 49 Cal.4th 846, 920-921.) Accordingly, if the record contains no evidence that would support application of the kill zone theory in this case, then the trial court erred by instructing the jury on that theory.
"'The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice--a conscious disregard for life--suffices. (People v. Lasko (2000) 23 Cal.4th 101, 107 [96 Cal.Rptr.2d 441, 999 P.2d 666].)' (People v. Bland (2002) 28 Cal.4th 313, 327 [121 Cal.Rptr.2d 546, 48 P.3d 1107] (Bland).) In contrast, '[a]ttempted murder requires 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 [3 Cal.Rptr.3d 402, 74 ...