for Partial Publication.[*]]
Cal.Rptr.3d 662] APPEAL from a judgment of the Superior Court
of Butte County, Kristen A. Lucena, Judge. Affirmed. (Super.
Ct. No. CM034653)
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
I. Zimmerman, Los Angeles, under appointment by the Court of
Appeal, for Defendant and Appellant.
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
OPINION ON TRANSFER
Acting P. J.
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.
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.
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.
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
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.
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.
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
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
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
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.
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.
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
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.
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
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
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.
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
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.
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
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
thought Smith was coming after him, so he pulled out his gun.
Defendant claimed he fired two shots into the air as a
warning. 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.
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
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.
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.