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 ...