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People v. Canizales

Supreme Court of California

June 24, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL RAFAEL CANIZALES et al., Defendants and Appellants.

          Fourth Appellate District, Division Two E054056

          San Bernardino County Superior Court FVA1001265 Steven A. Mapes, Judge

          Christine Vento, under appointment by the Supreme Court, for Defendant and Appellant Michael Raphael Canizales.

          David P. Lampkin, under appointment by the Supreme Court, for Defendant and Appellant KeAndre Dion Windfield.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy State Solicitor General, Andrew Mestman, Lise Jacobson and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

          Mitchell Keiter as Amicus Curiae on behalf of Plaintiff and Respondent.

          OPINION

          CANTIL-SAKAUYE, C. J.

         This case concerns whether the trial court properly instructed the jury on the so-called kill zone theory, under which a defendant may be convicted of the attempted murder of an individual who was not the defendant's primary target. As we shall explain, we conclude that a jury may convict a defendant under the kill zone theory only when the jury finds that: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm - that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death - around the primary target; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm.

         We caution, however, that trial courts must be extremely careful in determining when to permit the jury to rely upon the kill zone theory. The kill zone theory permits a jury to infer a defendant's intent to kill an alleged attempted murder victim from circumstantial evidence (the circumstances of the defendant's attack on a primary target). But, under the reasonable doubt standard, a jury may not find a defendant acted with the specific intent to kill everyone in the kill zone if the circumstances of the attack would also support a reasonable alternative inference more favorable to the defendant. (See CALCRIM No. 225.) Permitting reliance on the kill zone theory in such cases risks the jury convicting a defendant based on the kill zone theory where it would not be proper to do so. As past cases reveal, there is a substantial potential that the kill zone theory may be improperly applied, for instance, where a defendant acts with the intent to kill a primary target but with only conscious disregard of the risk that others may be seriously injured or killed. Accordingly, in future cases trial courts should reserve the kill zone theory for instances in which there is sufficient evidence from which the jury could find that the only reasonable inference is that the defendant intended to kill (not merely to endanger or harm) everyone in the zone of fatal harm.

         In the present matter, defendants Michael Canizales and KeAndre Windfield were jointly charged and tried before a single jury on counts including first degree murder and two attempted murders. The trial court gave a kill zone instruction in connection with one of the two alleged attempted murder victims. The Court of Appeal concluded that the jury was properly instructed on that theory, and upheld defendants' attempted murder convictions. We conclude there was not sufficient evidence in the record to support an instruction on the kill zone theory, and that the error requires reversal of the attempted murder convictions at issue because those convictions may have been based on the kill zone theory even though that theory was not properly applicable.

         Defendants raise the additional argument that instructing pursuant to CALCRIM No. 600, the current standard instruction regarding attempted murder, violated defendants' federal constitutional rights to due process because it led the jurors to believe they could convict defendants of the attempted murder of one victim without finding the requisite intent to kill. In light of our conclusion that the judgment must be reversed because the evidence was insufficient to support an instruction on the kill zone theory, we need not address defendants' constitutional challenge to CALCRIM No. 600.

         I. Facts and Procedural Background

         The convictions in this case arose from a gang-related shooting at a neighborhood block party on West Jackson Street in Rialto. Travion Bolden and Denzell Pride, the alleged attempted murder victims, both lived in apartments on West Jackson and were members of the Hustla Squad Clicc, a large Rialto-based criminal street gang. Defendants Canizales and Windfield were members of a smaller gang called Ramona Blocc that was also based in Rialto. The two gangs were rivals, and shootings between them were commonplace.

         Around noon on July 18, 2008, Bolden and Pride saw Canizales at a fast-food restaurant near West Jackson. The encounter led to a brief argument between Pride and Canizales over Canizales's female companion.

         Later that same day, Bolden had his own confrontation with Canizales after one member of a group of female friends with whom Bolden was socializing outside his apartment called out to Canizales to join them as he was passing by. Canizales approached and, in what one witness described as a somewhat aggressive manner, asked Bolden “what's up” and where he was from. When Bolden responded that he “didn't bang, ” Canizales walked away. Bolden provided a somewhat different account to an investigating officer, saying that he believed Canizales was challenging him to a fight, that Bolden responded to that challenge by removing his shirt and approaching Canizales to fight him, and that Canizales walked away once Bolden took off his shirt. According to Bolden's trial testimony, he felt that Canizales had disrespected him and that, once Canizales had left, Bolden immediately went to find Pride to tell him what had happened. Pride quickly took off running after Canizales, with Bolden following at a slower pace behind him. The pursuit was cut short, however, when Pride's mother yelled at him to stop and he returned to where he and Bolden had been talking.

         After the encounter with Bolden, Canizales walked to a nearby grocery store, from where he sent someone to summon Ramona Blocc gang leader Windfield. About 8:35 p.m., after joining Canizales outside the grocery store, Windfield spoke briefly with the driver of a vehicle that had pulled up next to them, then patted the car's trunk and said “Jackson Street” as the car drove away. Moments later, Windfield and Canizales headed toward West Jackson, skipping and strutting, throwing gang signs, and yelling “Ramona Blocc.”

         Meanwhile, people had begun to congregate on the 300 block of West Jackson to prepare for the neighborhood block party that night. By nightfall, there were approximately 10 to 30 or more people outside on the sidewalks and in the street, talking, dancing, and partying. Twenty-six-year-old Leica Cooksey was with a group of young women who had gathered around her parked car, dancing to the music on the car's radio.

         The testimony at trial showed slightly different accounts of where the victims were located prior to the shooting. For example, Bolden testified that he and Pride were standing in the street in front of Pride's apartment on the same side of the street as Cooksey and her friends, who were about 20 feet away. Other testimony indicated that Cooksey's group was on the side of the street opposite Pride's apartment.

         Bolden testified that as he talked with Pride he noticed that an unfamiliar car had passed them several times and then parked on Willow Avenue, which runs perpendicular to the east side of West Jackson's 300 hundred block. Bolden and Pride then saw five or six men, including Canizales and Windfield, line up shoulder to shoulder near a manhole cover at the intersection between West Jackson and Willow, facing West Jackson.

         The evidence at trial provided somewhat different versions of what happened next. Bolden testified that he observed Windfield pull a gun out of his waistband and attempted to pass it to Canizales, who did not take it. Bolden then heard Windfield first say either, “That's that little nigga, ” or, “There goes those little niggas right there, ” and then “Bust.”[1] Sparks and the sound of gunfire followed. According to Bolden, after Windfield had fired the first shot, Pride grabbed Bolden and they ran away from the direction of the gunfire. Pride testified, however, that he was standing in front of his apartment when the first shot was fired, and that he ran to his young nieces and hurried them inside for safety.

         Bolden had provided still another version of the shooting in a recorded interview by Detective Williams that occurred two years after the shooting and about one year prior to trial. In that account, Bolden told the officer he was standing inside a West Jackson apartment building's front yard gate smoking marijuana with some neighbors when he noticed an unfamiliar car pass by several times. When the car's occupants got out of the vehicle on Willow Avenue and started walking, he heard Windfield say, “That's the little nigga right there.” The officer asked Bolden whether Windfield was referring to him (Bolden). Bolden replied that they had seen Pride because Pride “gave it away when he started runnin' ” and that was when the “gunshots came on.” Pointing to a location on the investigator's map, Bolden said that Pride had been talking on his phone while standing near a parked car that was about four car lengths away from him, closer to Willow. When Bolden heard someone yell “bust, ” he came out from the gate to find Pride. Moments later, Bolden saw a gunshot flash and started running.

         Bolden further testified that once the shooting had begun, he ran away along the sidewalk in a straight line but that Pride zig-zagged back and forth across the street, at one point running behind a bus that was parked on the same side of the street where Cooksey and her friends were dancing to her car's radio. Bolden could hear the gunfire coming their way, with bullets flying by them and “tingling through the gates.” Bolden also believed, however, that Windfield could not control his gun, and he described the bullets as “going everywhere.” When Windfield stopped shooting, he and Canizales ran down Willow Avenue, away from the scene.

         Neither Pride nor Bolden was hit by gunfire, but one of the shots struck Cooksey in the abdomen and she later died as a result of that injury. Investigators found five expended cartridge casings at the corner of West Jackson and Willow, approximately 100 feet from where Cooksey was shot. The casings were nine millimeter and all of them had been fired from a single semi-automatic gun. A defense investigator determined that the distance from the manhole cover on Willow to where Pride and Bolden stood when the shooting began was 160 feet.

         Detectives spoke with Canizales and Windfield shortly after the shootings but the investigation stalled and no charges were filed. Meanwhile, Pride and Bolden had left the area and could not be located. About one year after the incident, however, Windfield told a family friend that he and Canizales had gone to West Jackson to shoot the Hustla Squad member who had killed his cousin. Windfield explained that a girl got in the way of his gunfire while the person he was shooting at ran away. Four months after that conversation, Windfield's friend reported the confession to police, and the investigation reopened. Although officers had difficulty locating Bolden and Pride, they eventually obtained statements from them describing the incident and implicating Canizales and Windfield in the shooting.

         Canizales and Windfield were charged by amended information with the deliberate, premeditated murder of Cooksey, the deliberate, premeditated attempted murders of Bolden and Pride, and street terrorism. (Pen. Code, §§ 187, subd. (a); 664, subd. (a) and 187, subd. (a); 186.22, subd. (a).)[2] The amended information also alleged that Canizales and Windfield committed the crimes to benefit a street gang, and that a principal personally discharged a firearm causing death, within the meaning of sections 186.22, subdivision (b), and 12022.53, subdivisions (b), (c), (d), and (e)(1). Neither Canizales nor Windfield testified at trial. At the close of evidence, the court dismissed the street terrorism charge and several of the firearm enhancements in the interest of justice.

         The court instructed the jury on attempted murder using CALCRIM No. 600.[3] During closing argument, which occurred after the court had given its instructions, the prosecutor offered two theories of defendants' liability for the attempted murder of Bolden. She argued first that the evidence showed Windfield was shooting at, and attempting to kill, both Pride and Bolden, presumably because they were members of the Hustla Squad gang. She then described the concept of the kill zone. The prosecutor told the jury that “[i]f 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. Okay. So there were times when [Bolden] told you that he was with [Pride], near [Pride], close proximity to [Pride]. So they're both within the zone of fire, the range [of] the bullets that are coming at them.”

         As relevant here, the jury found both defendants guilty of the first degree murder of Cooksey and the premeditated attempted murders of Bolden and Pride, and found as to all three counts that the offenses were committed for the benefit of a criminal street gang. The Court of Appeal reversed Canizales's first degree murder conviction of Cooksey in light of this court's decision in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), [4] but otherwise affirmed the judgments. In upholding the attempted murder convictions, the Court of Appeal expressly disagreed with the formulation of the kill zone theory's requirements set forth in People v. McCloud (2012) 211 Cal.App.4th 788 (McCloud).

         We granted review in light of the conflict in the Courts of Appeal regarding the evidentiary basis for applying, and instructing on, the kill zone theory for establishing the intent to kill element of attempted murder.

         II. Discussion

         A. The kill zone theory of ...


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