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People v. Warner

California Court of Appeals, Third District

December 16, 2019

The PEOPLE, Plaintiff and Respondent,
v.
Shane Michael WARNER, Defendant and Appellant.

         [Certified for Partial Publication.[*]]

         [256 Cal.Rptr.3d 662] APPEAL from a judgment of the Superior Court of Butte County, Kristen A. Lucena, Judge. Affirmed. (Super. Ct. No. CM034653)

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[Copyrighted Material Omitted]

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         COUNSEL

         Harry I. Zimmerman, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Caely E. Fallini, Deputy Attorney General, for Plaintiff and Respondent.

          OPINION ON TRANSFER

         BLEASE, Acting P. J.

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          This case involves a jury finding of attempted homicide pursuant to a "kill zone" theory. It arises from a shooting in a crowded bar. On a Saturday night of a long July 4th holiday weekend, defendant Shane Michael Warner took a semiautomatic hand gun, concealed in his waistband into a bar. He shot across the bar’s semidark dance floor, illuminated by a strobe light, at I. Smith, who had attacked him a few weeks earlier. Defendant emptied the gun’s clip of 10 bullets and wounded, but did not kill his primary target, Smith, and wounded, but did not kill an innocent bystander, N.C. Defendant claimed to have acted in self-defense, but there was no evidence that Smith was armed.

         [256 Cal.Rptr.3d 663] The prosecution charged defendant with two counts of attempted murder and one count of assault with a semiautomatic firearm. The jury was unable to reach a verdict on the attempted murder of Smith, and the prosecution eventually dismissed that count. The jury acquitted defendant of the attempted murder of N.C., but found him guilty of the lesser included offense of attempted voluntary manslaughter. The jury convicted defendant of assaulting N.C. with a semiautomatic firearm. The trial court sentenced defendant to 22 years in prison, calculated as follows: nine years (upper term) for the assault, plus 10 years for personal use of a firearm pursuant to Penal Code section 12022.5, subdivision (a), plus three consecutive years for the personal infliction of great bodily injury. The trial court stayed the attempted voluntary manslaughter sentence of five years six months pursuant to Penal Code section 654.

         In the published portion of this opinion defendant argues there is insufficient evidence to sustain his conviction for attempted voluntary manslaughter because he did not intend to kill N.C. He argues it was error to allow the prosecution to infer intent from a "kill zone" theory, and to so instruct the jury. The instruction said: "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.’ " The intent is concurrent. It occurs " ‘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.’ " (People v. Bland (2002) 28 Cal.4th 313, 329, 121 Cal.Rptr.2d 546, 48 P.3d 1107 (Bland ).) The intent is imputed to the defendant from the extreme danger to life tendered by such conduct.

         We conclude that the trial court did not err in allowing the prosecutor to argue defendant intended to kill N.C. under a "kill zone" theory, and in so

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instructing the jury. " ‘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.’ " (Bland, supra, 28 Cal.4th at pp. 329-330, 121 Cal.Rptr.2d 546, 48 P.3d 1107, quoting Ford v. State (Md.Ct.App. 1993) 330 Md. 682, 717, 625 A.2d 984.) Defendant’s actions in shooting a gun multiple times at a group of people on a crowded, semidark dance floor provided facts from which a reasonable jury could infer he intended to kill people on the dance floor, including N.C.

         We issued a published opinion on May 7, 2019, affirming the judgment. On May 22, 2019, defendant filed a petition for rehearing asking us to address his supplemental brief seeking a remand to the trial court for retroactive application of Senate Bill No. 620 (2017-2018 Reg. Sess.), which would allow the trial court to exercise its discretion to dismiss the firearm enhancement. We will remand the matter to the trial court for the sole purpose of determining whether to exercise its discretion to dismiss the section 12022.5, subdivision (a) firearm enhancement.

         Even though the sentence for attempted voluntary manslaughter was stayed, defendant petitioned the Supreme Court for review, raising the issue of the "kill zone" instruction. The Supreme Court granted review, and directed us to vacate our decision and reconsider the cause in light of People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686 (Canizales ), decided after our opinion was filed. After reconsidering the matter, we again affirm the judgment, and remand to allow the trial court to consider whether to exercise [256 Cal.Rptr.3d 664] its discretion to strike the sentencing enhancement.

          FACTUAL AND PROCEDURAL BACKGROUND

         The shooting occurred at LaSalle’s Bar in Chico, California. About three weeks prior to the shooting, defendant and Smith got into an argument after defendant confronted Smith about wearing a blue Los Angeles Dodgers cap. Defendant and Smith were told to leave the bar. After defendant and Smith left the bar, Smith punched defendant several times in the face. Defendant testified that before he lost consciousness, he heard Smith say, "If you come around my turf again, I’m going to kill you." Defendant sustained a concussion, a contusion on his right and left eye, a chipped tooth, scratches all over his face, a busted lip, and a sore rib. Defendant testified that his friends later told him to stay away from Smith because Smith was dangerous and had gang ties.

          Defendant testified that before the fight, he had purchased an unregistered nine-millimeter Glock handgun off the streets. He said he purchased it to protect his household, but did not normally carry it on his person. Nevertheless, he had it in his back waistband when he went to LaSalle’s Bar on July 2,

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2011, the night of the shooting. He arrived at the bar wearing a red Cincinnati Reds cap, even though he was a San Francisco Giants fan. The Cincinnati cap matched his outfit, which was all red and black.

          Andre Shaw was at LaSalle’s Bar the night of the shooting with his friend N.C. Defendant, whom they did not know, asked Shaw at one point if he was from Chico. N.C. and Shaw went to the bar’s back patio, and Shaw was dancing on the dance floor. N.C. was standing next to him. Shaw heard two shots, then looked around to see defendant standing next to the DJ booth with a gun in his hand, firing it in the middle of the bar. Defendant was firing in Shaw’s direction, and Shaw thought that defendant was aiming for him. Shaw ran out of the bar and did not see anyone get injured.

          N.C. was standing near Shaw when she felt something hit her back. She fell to the floor. She saw Smith also on the ground, but not close enough for her to touch. She saw defendant standing at Smith’s feet, shooting at Smith’s chest area as Smith lay on the ground. N.C. was having difficulty breathing because her lung had been punctured. She also had a bruise on her right front hip where she carried her ATM card and ID. She later discovered a bullet lodged in her ID. A bullet went in her arm, and she continues to have muscle spasms in her arm and back.

         Another bar patron heard the first two shots, then moments later saw a man (Smith) drop to the ground. The shooter ran up, stood over the victim, and continued shooting him. The shooter emptied his clip into Smith as Smith lay on the ground, stepped away, did a little yell as if he’d scored a touchdown, and ran out the side door. Another patron said she heard the shots first, turned, and saw defendant walking across the bar shooting the gun.[1]

          One of the bartenders saw defendant shooting, and saw him slowly walking and moving to the right, swooping with his arm. Defendant had a snarl on his face. Defendant shot with one hand, and did not stabilize the gun with the other hand. There were about 280 patrons in the bar that night, plus staff. The bouncers count the patrons with a clicker as they come in. The bartender estimated there were about [256 Cal.Rptr.3d 665] 50 people in the back patio area where the shooting occurred.

          Defendant ran out of the bar and was chased and caught by one of the bouncers, who had looked up to see defendant after hearing the first shot. He watched defendant walk up to Smith and shoot again two or three more times. When the bouncer caught defendant after the shooting, defendant told the bouncer he had not done the shooting. The bouncer told defendant he had

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seen defendant do it, to which defendant did not reply. Defendant’s gun was found discarded in some bushes. Defendant also told police initially that he had not done anything, and had not been at LaSalle’s Bar that night.

          When defendant was booked into the Butte County jail the next day, he stated that he was a "Blood associate but not a gang member," and that he could not be housed with Crips because the victim was "basically a Crip." Defendant thought Smith was a Crip because he wore the color blue.

          The parties stipulated that a gun recovered from the bushes was a Glock firearm. The slide of the gun was locked open and there was no ammunition inside the magazine or barrel. Ten spent casings were collected from the scene of the shooting. All were fired from defendant’s gun. The first spent casing was found all the way across the bar. Five more casings were found about halfway to the victim, and four more casings were found beside the victim. The floor of the bar, which was asphalt, had three impact marks from bullets beside where Smith had fallen. Based on the damage to the bullet fragments, these marks appeared to have been made when defendant was shooting in a downward direction. Three bullet impact marks were found in the wooden fence behind Smith, and one bullet was recovered that passed through the fence and lodged in a post. The two bullets recovered from N.C., and a bullet recovered from Smith’s back were also fired by defendant’s gun. At least some of the bullet fragments recovered were hollow point bullets, designed to open up when they strike human tissue and create more damage. It was not possible to determine whether all the bullet fragments were from hollow point bullets.

         N.C. was treated for a gunshot that entered her right shoulder, went into her chest, and out her back. She had a collapsed lung and bruising on her hip where a bullet lodged in her ID card. Smith was treated for multiple gunshot wounds. At least four bullets struck him, causing approximately eight bullet wounds. Smith suffered internal bleeding, and received 27 blood transfusions. Two bullets were not able to be removed because they were lodged too close to his spine. Smith’s spleen and part of his left lung were removed. Smith was in the hospital for two weeks, then was transferred to a rehabilitation hospital.

         Defendant testified at trial. He admitted taking a gun into a bar and shooting it. He argued he acted in self-defense. He stated that sometime after the fight, but before the shooting, he heard from an acquaintance that Smith admitted being a little drunk the night of the fistfight, and that he said everything was "cool." Defendant took this to mean everything was not cool. The night of the shooting, Defendant saw Smith at LaSalle’s Bar standing and talking to his friends. Smith started walking toward defendant. Defendant

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thought Smith was coming after him, so he pulled out his gun. Defendant claimed he fired two shots into the air as a warning.[2] When Smith kept coming toward him, he brought [256 Cal.Rptr.3d 666] the gun down and started shooting at Smith. Defendant claimed he fired nine times, and the last three times were into the ground next to Smith. He claimed he saw no one around Smith, and that his whole focus was on Smith.

         The jury was unable to reach a verdict on count 1, the attempted murder of Smith. The jury found defendant not guilty of count 2, the attempted murder of N.C., but guilty of the lesser included offense of attempted voluntary manslaughter. The jury found defendant guilty of count 3, assault of N.C. with a semiautomatic firearm. The jury also found true the special allegations attached to count 3, that defendant personally used a firearm within the meaning of Penal Code [3] section 12022.5, subdivision (a), and personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The prosecution later dismissed count 1 in the interest of justice.

          The trial court stayed the sentence on count 2, attempted voluntary manslaughter. The court sentenced defendant to the upper term of nine years on count 3. The court also sentenced defendant to an additional 13 years for the enhancements, for a total aggregate sentence of 22 years.

          DISCUSSION

          I

          Kill ...


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