California Court of Appeal, Fourth District, Second Division
March 5, 2014
The PEOPLE, Plaintiff and Respondent,
Michael Rafael CANIZALES et al., Defendants and Appellants.
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed with directions. (Super. Ct. No. FVA1001265).
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Michael Canizales.
[168 Cal.Rptr.3d 626] David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant KeAndre Windfield.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendants, Michael Canizales and KeAndre Windfield of first degree murder (Pen.Code, § 187, subd. (a)), during which a principal discharged a firearm proximately causing death (§ 12022.53, subds. (d) & (e)(1)), and two counts of attempted willful, premeditated and deliberate murder (§§ 664/187), during which a principal discharged a firearm (§ 12022.53, subds. (c) & (e)(1)). The jury found that all the offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) Canizales was sentenced to 25 years to life and two terms of 15 years to life and Windfield was sentenced to two terms of 25 years to life and two terms of 15 years to life plus 40 years. They appeal, claiming jury instruction and sentencing error. We reject their contentions and affirm, while directing the trial court to correct errors in their abstracts of judgment.
[168 Cal.Rptr.3d 627] I.[**]
ISSUES AND DISCUSSION
1. Jury Instructions
c. Kill Zone Instruction on Attempted Murder
1. The Law on Kill Zone
In People v. Bland (2002) 28 Cal.4th 313, 328-330, 333, 121 Cal.Rptr.2d 546, 48 P.3d 1107 ( Bland ), the California Supreme Court explained, " [A defendant] 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 defendant must intend to kill the alleged victim, not someone else.... [¶] ... [¶] [However, t]he conclusion that transferred intent does not apply to attempted murder still permits a [defendant] who shoots at a group of people to be punished for the actions towards everyone in the group even if [the defendant] primarily targeted only one of them.... [A] defendant might be guilty of ... attempted murder of everyone in the group.... [¶] ... [T]he fact that a [defendant] desires to kill a particular target does not preclude finding that the [defendant] also, concurrently, intended to kill others within what it termed the ‘ kill zone.’ ‘ The intent is concurrent ... when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude [that the defendant] intended to ensure harm to the primary victim by harming everyone in that victim's vicinity. ’ ... [C]onsider 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 ... 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. When a defendant escalate[s] his mode of attack from a single bullet aimed at A's head to a hail of bullets ..., the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death.... Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone...." ( Id. at pp. 328-330, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) " [T]he evidence here virtually compelled a finding that even if defendant primarily wanted to kill [the murder victim], he also, concurrently, intended to kill the others in the car. At the least, he intended to create a kill zone. " ( Id. at p. 333, 121 Cal.Rptr.2d 546, 48 P.3d 1107.)
We now turn our attention to People v. McCloud (2012) 211 Cal.App.4th 788, 149 Cal.Rptr.3d 902 ( McCloud ), upon which Canizales heavily relies in his criticism of the kill zone instruction given in this case. McCloud begins its discussion of the kill zone theory by citing language in People v. Smith (2005) 37 Cal.4th 733, 37 Cal.Rptr.3d 163, 124 P.3d 730 ( Smith ) about that theory. Smith, however, is not a kill zone case, so anything said about the theory
therein is dicta. (Accord, People v. Adams (2008) 169 Cal.App.4th 1009, 1022, 86 Cal.Rptr.3d 915 ( Adams ).) Moreover, Smith interpreted the reasoning in Bland, [168 Cal.Rptr.3d 628] which we have extensively quoted above, to mean that " a shooter may be convicted of multiple counts of attempted murder on the ‘ kill zone’ theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in the area around the targeted victim ... as the means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm."  ( Smith, supra, 37 Cal.4th at p. 746, 37 Cal.Rptr.3d 163, 124 P.3d 730.) At the same time, the Smith court quoted Bland 's language that, " ‘ The ... kill zone ... theory is simply a reasonable inference the jury may draw in a given case; a primary intent to kill a specific target does not rule out a concurrent intent to kill others.’ " ( Smith, at p. 746, 37 Cal.Rptr.3d 163, 124 P.3d 730.)
Based on this language, and with no further citation to any precedent, McCloud states, " The kill zone theory thus does not apply if the evidence shows only that the defendant intended to kill a particular targeted individual but attacked that individual in a manner that subjected other nearby individuals to a risk of fatal injury. Nor does the kill zone theory apply if the evidence merely shows, in addition, that the defendant was aware of the lethal risk to the nontargeted individuals and did not care whether they were killed in the course of the attack on the targeted individual. Rather, the kill zone theory applies only if the evidence shows that the defendant tried to kill the targeted individual by killing everyone in the area in which the targeted individual was located. The defendant in a kill zone case chooses to kill everyone in a particular area as a means of killing a targeted individual within that area. In effect, the defendant reasons that he cannot miss his intended target if he kills everyone in the area in which the target is located. [¶] ... [T]he defendant specifically intends that everyone in the kill zone die. If some of those individuals manage to survive the attack, then the defendant— having specifically intended to kill every single one of them and having committed a direct but ineffectual act toward accomplishing that result— can be convicted of attempted murder." ( McCloud, supra, 211 Cal.App.4th at p. 798, 149 Cal.Rptr.3d 902.)
In our view, McCloud goes too far. The language in Bland, cited above, posits that the intent to kill the nontargeted person(s) can be inferred from the nature and scope of the attack or from the method employed. If, as McCloud asserts, the defendant must in fact intend to kill each attempted murder victim, there is no reason to employ the theory— the intent to kill is established without resort to the theory. That McCloud overstates the theory is proven by language in other California Supreme Court opinions. In [168 Cal.Rptr.3d 629] People v. Stone (2009) 46 Cal.4th 131, 136, 137, 92 Cal.Rptr.3d 362, 205 P.3d 272 ( Stone ), the High Court said of Bland, " The evidence supported a jury finding that the defendant intended to kill the driver [of the car into which he shot] but did not specifically target the two who survived. [Citation.] ... We summarized the rule that applies when an intended target is killed and unintended targets are injured but not killed.... [¶] ... [I]f a person targets one particular person, ... a jury could find the person also, concurrently, intended to kill— and thus was guilty of the attempted murder of— other, nontargeted persons." (Some italics original, some added.) In her dissent in Smith, supra, 37 Cal.4th at pages 755 and 756, 37 Cal.Rptr.3d 163, 124 P.3d 730, Justice Werdegar said, " A kill zone ... analysis ... focuses on (1) whether the fact finder can rationally infer from the type and extent of force employed in the defendant's attack on the primary target that the defendant intentionally created a zone of fatal harm, and (2) whether the nontargeted alleged attempted murder victim inhabited that zone of harm." (Italics added.)
Language in opinions of the Court of Appeal also suggest that McCloud misstates the kill zone theory. In Adams, supra, 169 Cal.App.4th 1009, 1023, 86 Cal.Rptr.3d 915, the Fifth District said, " [T]he ... [theory] permits a rational jury to infer the required express malice from the facts that (1) the defendant targeted a primary victim by intentionally creating a zone of harm, and (2) the attempted murder victims were within that zone of harm. [It] recognizes that the defendant acted with the specific intent to kill anyone in the zone of harm with the objective of killing a specific person.... [It] imposes attempted murder liability where the defendant intentionally created a kill zone in order to ensure the defendant's primary objective of killing a specific person ... despite the recognition, or with the acceptance of the fact, that ... a natural and probable consequence of that act would [ be that ] anyone within the zone could or would die. " In People v. Campos (2007) 156 Cal.App.4th 1228, 1243, 67 Cal.Rptr.3d 904, the appellate court held, " The [kill zone] theory ... is simply a reasonable inference the jury may draw in a given case...."
Moreover, McCloud 's restrictive view of the kill zone theory cannot possibly be reconciled with the holding of two different appellate courts, and the approval by the California Supreme Court of one of those holdings, that kill zone victims can include those not seen by the defendant or of which the defendant is unaware. (See fn. 19, ante, p. 627.)
2. Kill Zone Instructions Given Here and Defendants Arguments
The jury was given the following instruction on the intent necessary for attempted murder, " To prove that a defendant is guilty of attempted murder, the People must prove that: 1. The defendant took a direct but ineffective step toward killing another person; and 2. The defendant intended to kill that person. [¶] ... [¶] A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing the murder, then that person is not guilty of attempted murder. [¶] A person may intend to kill a particular 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 [168 Cal.Rptr.3d 630] murder of ... Bolden, the People must prove that the defendant not only intended to kill ... Pride but also either intended to kill ... Bolden, or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill ... Pride by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder."
The prosecutor argued that after Bolden and Canizales had a heated gang-inspired verbal confrontation, Canizales and Windfield, Ramona Blocc members, went to Jackson Street to shoot at a member of the rival, Hustla Squad, of which Bolden and Pride were members, to avenge the death of his cousin. She argued that this was the plan of both Canizales and Windfield. She said that Windfield shot five times " trying to kill that rival gang member" . She continued, " [Bolden] told you that the initial person that was being shot at was [Pride]. In [his interview with police] he tells you [that] at one point he runs out; he's being shot at. So that's why you have those counts of attempted murder. You have ... the one count of attempt[ed] murder on [Pride] and on [Bolden], because they're both being shot at. When you're being shot at, the assumption is somebody is trying to kill you." " [Canizales and Windfield] tried to kill someone, but they weren't successful.... And they intended to kill that person. Well, [Bolden and Pride are] both Hustla Squad. You have a motive of why [Canizales and Windfield are] out there. They are trying to kill Hustla Squad, right? [¶] ... [Bolden] told you very clearly they were shooting at [Pride], but [Pride] turned around and ran and they're shooting at him. And then at one point [Bolden] tells you he runs out and they're shooting at him.... So ... Windfield shot at both of them. That's why you have a count for each one of the attempts. [¶] There's also this concept of kill zone within attempt[ed murder]. If they're shooting at someone and people are within the zone that they can get killed, then you're responsible for attempted murder as to the people who are within the zone of
fire.[[] So there were times when [Bolden] told you that he was with [Pride], near [Pride], [in] close proximity to [Pride]. So they're both within the zone of fire, the range of bullets that are coming at them."  Neither defense counsel mentioned the kill zone theory, as both insisted that the evidence did not prove beyond a reasonable doubt that their clients had participated in the shootings.
Defendants first assert that there was insufficient evidence to support a kill zone instruction. In so doing they rely on two cases in which just one bullet was fired. In Stone, supra, 46 Cal.4th 131, 92 Cal.Rptr.3d 362, 205 P.3d 272, just one bullet was fired into a crowd of " about 10." ( Id. at p. 135, 92 Cal.Rptr.3d 362, 205 P.3d 272.) Although not its holding, the High Court in Stone agreed with the appellate [168 Cal.Rptr.3d 631] court's conclusion that " ‘ [t]here was no evidence ... that [defendant] used a means to kill the [alleged attempted murder victim] that inevitably would result in the death of other victims within a zone of danger.’ " ( Id. at p. 138, 92 Cal.Rptr.3d 362, 205 P.3d 272.) Here, in contrast, five bullets were fired— under the kill zone theory, Pride was the primary target. Thus, the jury could reasonably infer that Windfield used a means to kill Pride that inevitably would result in the death of other victims within the zone of danger.
The same is true of the other case defendants cite, People v. Perez (2010) 50 Cal.4th 222, 112 Cal.Rptr.3d 310, 234 P.3d 557 in which the defendant fired one bullet into a group of eight people. ( Id. at p. 225, 112 Cal.Rptr.3d 310, 234 P.3d 557.) The High Court concluded that this did not constitute " a means of force calculated to kill everyone in the group." ( Id. at p. 225, 112 Cal.Rptr.3d 310, 234 P.3d 557.) Further, the court noted that the prosecutor had conceded that the defendant " did not intend to ‘ kill everybody in the group....’ " ( Ibid. ) In contrast, in McCloud, supra, 211 Cal.App.4th at pages 788, 791, 794-795, 799-800, 149 Cal.Rptr.3d 902, whose language we have already criticized, the appellate court held that the kill zone theory did not apply where 10 bullets were fired from a parking lot into a building with a semiautomatic handgun, killing two and wounding a third who had been inside. Two bullets had struck a car in the parking lot, five had struck the exterior wall of the building and three had hit the window of the building, passed through it and hit the three wounded victims. ( Id. at p. 794, 149 Cal.Rptr.3d 902.) There had been over 400 people present inside and just outside the building and defendants had been charged with the
attempted murder of 46 people. ( Ibid. ) The appellate court stated, " [T]he record contains no evidence that [the defendants] tried to kill 46 people with 10 bullets. Nor does the record contain evidence that it would have been possible for them to kill 46 people with 10 bullets (given the type of ammunition and firearm they used), or that they believed or had reason to believe it was possible.... As in Perez, there is no evidence that [the defendants] ‘ specifically intended to kill two or more persons with [a] single shot’ [citation], much less that they specifically intended to kill the 4.6 people per shot that would be necessary to support [the] application of the kill zone theory." ( McCloud at pp. 799-800, 149 Cal.Rptr.3d 902, fn.omitted.)
Defendants cite no authority for their proposition that the existence of a kill zone " requires a defined area that can be saturated with the kind of lethal force the defendant chooses to use." Moreover, the jury had before it the measurements of the crime scene, and detailed descriptions of the positioning of all parties by Bolden, Pride and other eyewitnesses. It was for the jury to make the decision whether Windfield created a kill zone when he fired and whether Bolden was in it. Defendants' position, contrary to their assertion, is not supported by Vang.
In Vang, at least 50 bullet holes dotted the front of both units of a duplex, although the majority were on the duplex occupied by the victims. ( Vang, supra, 87 Cal.App.4th at p. 558, 104 Cal.Rptr.2d 704.) The bullets had been fired by an AK series assault rifle and a shotgun. ( Ibid. ) There was extensive gun fire damage throughout both units. ( Ibid. ) At a second residence, the assault rifle had been used to spray bullets at an apartment. ( Ibid. ) Each of the residences contained one primary victim. ( Id. at p. 563, 104 Cal.Rptr.2d 704.) The defendants conceded that the evidence proved that they intended to kill these two primary victims, but because the bullet holes centered around [168 Cal.Rptr.3d 632] where these two could be seen from where defendants fired, there was insufficient evidence of the defendants' intent to kill the nine others in the two residences. ( Ibid. ) The appellate court concluded, " The jury drew a reasonable inference, in light of the placement of the shots, the number of shots and the use of high-powered, wall-piercing weapons, that defendants harbored a specific intent to kill every living being within the residence they shot up. [Citations.] Defendants' argument might have more force if only a single shot had been fired in the direction of where [ the two primary victims ] could be seen. " ( Id. at p. 564, 104 Cal.Rptr.2d 704, italics added) There is no inference derivable from Vang that firing five bullets into a crowd of people cannot result in the inference that the defendants intended that all of those people be killed.
Defendants assert that there was " no evidence of a group [they] intended ... [¶] ... being attacked...." They correctly point out that different witnesses gave different estimations of the number of people in the area at the
time of the shooting. However, it was for the jury to resolve this conflict and determine the number of people, if there was a kill zone and whether Bolden was in it. Bolden testified that Pride grabbed him after the first shot and the two began running. The fact that Pride began running after the first bullet was fired, contrary to defendants' assertion, did not somehow " undo" the kill zone and defendants cite no authority so holding. We note that in Bland, the defendant fired a hail of bullets " at the fleeing [victim's] car." ( Bland, supra, 28 Cal.4th at p. 331, 121 Cal.Rptr.2d 546, 48 P.3d 1107.)
Next, defendants criticize the language in the standardized instruction concerning the kill zone. They assert that because it refers, at one point, to a " zone of harm" rather than a " zone of lethal harm" it permitted the jury to infer the intent to kill from Bolden being " within the zone of risk from [Windfield's] stray shots." However, defendants take this singular reference out of context. To repeat, the instruction provided, in pertinent part, " A person may intend to kill a particular 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 ... Bolden, the People must prove that the defendant not only intended to kill ... Pride but also ... intended to kill everyone within the kill zone. " We disagree that this language invited the jury to infer the intent to kill based merely on Bolden's presence in a zone of non lethal harm. (Accord, People v. Bragg (2008) 161 Cal.App.4th 1385, 1396, 75 Cal.Rptr.3d 200.) Moreover, adding the word " lethal" would do nothing to address defendants' concern about the zone of risk of what defendants' term Windfield's " stray shots." Specifically, what is meant by the term " stray bullets" in the context of the kill zone theory? Is a stray bullet one which is directed at the primary target, but comes closer to the attempted murder victim? Vang, supra, 87 Cal.App.4th at page 564, 104 Cal.Rptr.2d 704 illustrates our point. Despite the defendant's assertion that most of the [168 Cal.Rptr.3d 633] bullets were directed at the primary target, who was standing at the front door of his duplex unit, the appellate court concluded that there was substantial evidence to support an inference that the defendants intended to kill everyone in the household. ( Id. at pp. 558, 564, 104 Cal.Rptr.2d 704.) The same was true of the second home the defendants shot up— an apartment in which the primary target and two family members were sitting near the front window, yet two uninjured children in a bedroom were included within the collection of attempted murder victims, even though, no doubt, they were endangered by " stray" bullets. ( Id. at pp. 558, 564, 104 Cal.Rptr.2d 704.)
Finally, it must be remembered that the jury found that the attempted murder of Bolden was willful, which required it to find that the defendants intended to kill him. We disagree with defendants' assertion that this instruction permitted the jury to find that they willfully attempted to murder Bolden by intending only to kill Pride.
Nor does Stone require a different result. In Stone, defendant fired at a group of 10 people. ( Stone, supra, 46 Cal.4th at p. 135, 92 Cal.Rptr.3d 362, 205 P.3d 272.) The information singled out one of those ten people as the alleged attempted murder victim. ( Ibid. ) However, that person testified that he did not think defendant pointed the gun at anyone in particular, it " had not been pointed ‘ directly’ at him, but it was ‘ near’ him," and he believed it was fired just to scare him and the others in the group— that he " really d[id]n't think [defendant] was trying to shoot anybody.' " ( Ibid. ) Based on the evidence, the prosecutor conceded to the jury during argument that " he had not proven that defendant intended specifically to kill [the alleged attempted murder victim] rather than someone in the group of 10 persons. He argued, however, that an intent to kill someone, even if not specifically [the alleged attempted murder victim] was sufficient for the jury to find defendant guilty of the attempted murder...." ( Id. at p. 139, 92 Cal.Rptr.3d 362, 205 P.3d 272.) The California Supreme Court concluded that " [The allegation] that defendant intended to kill [the alleged attempted murder victim] was problematic given that the prosecution ultimately could not prove that defendant targeted a specific person rather than simply someone within the group.... [I]t would have been sufficient to allege that defendant ... attempted to murder a member of [the] group...." ( Id. at p. 141, 92 Cal.Rptr.3d 362, 205 P.3d 272.) 
In contrast to the facts in Stone, more than one bullet was fired here, there was evidence to support a finding that Windfield fired at Bolden and the prosecutor did not concede that the evidence was insufficient to prove that the defendants intended specifically to kill Bolden— in fact, the prosecutor argued just the opposite.
The trial court is directed to amend the abstract of judgment for Canizales by omitting the " S" next to each of the section 186.22, subdivision (b)(1)(C) enhancements. The trial court is directed to amend the [168 Cal.Rptr.3d 634] abstract of judgment for Windfield by checking the box next to " 7", and completing a determinate abstract of judgment which shows the 20-year term imposed for each of the section 12022.53, subdivision (c) enhancements on the two attempted murder. In all other respects the judgments are affirmed.
We concur: HOLLENHORST, J., CODRINGTON, J.