P. v. Brown

Filed 8/22/07 P. v. Brown CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Paul A. Bacigalupo, Judge. Reversed and remanded.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Donte Wilson Brown challenges his attempted murder, assault with a firearm, and criminal threats convictions on several grounds, including instructional error and insufficiency of evidence. We conclude the trial courts jury instruction upon the concurrent intent theory omitted a crucial element of intent and requires reversal. Substantial evidence supports appellants second attempted murder conviction.

BACKGROUND AND PROCEDURAL HISTORY

Appellants younger sister, Erica B., went with friends to the home of Linda Johnson^[1]to see her former friend Melody W. An altercation ensued. Some of Johnsons friends came to the house after Erica and her friends left. As Johnsons friend Vicky Washington was about to get into her car to go home, appellant and two male companions approached. Appellant argued with Johnson and her friends. Appellant then said, Im just gonna kill you, pulled a gun from his waistband, and fired five shots. Johnson was struck in the hand and Washington was struck in the buttocks.

A jury convicted appellant of two counts of attempted murder, two counts of assault with a firearm, and one count of criminal threats.^[2] The jury found all of the gun-use and discharge enhancement allegations true and found appellant personally inflicted great bodily injury on the commission of each assault. The court sentenced appellant to prison for 59 years 4 months to life.

DISCUSSION

1. CALCRIM No. 600omitted an element required to establish an intent

to kill under the concurrent intent theory.

Over appellants objection, the court instructed the jury on the zone of harm concurrent intent theory described in People v. Bland (2002) 28 Cal.4th 313, 329-331 (Bland), using CALCRIM No. 600. In pertinent part, this instruction, as given at appellants trial, stated, A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm. In order to convict the defendant of the attempted murder of Vicky Washington, the People must prove that the defendant not only intended to kill Linda Johnson Philips, but also either intended to kill Vicky Washington or intended to kill anyone within the zone of harm. If you have a reasonable doubt whether the defendant intended to kill Vicky Washington or intended to kill Linda Johnson Phillips by harming everyone in the zone of harm, then you must find the defendant not guilty of the attempted murder of Vicky Washington.

Appellant contends the use of the quoted portion of the instruction was error because the facts did not support a concurrent intent theory and the instruction improperly told the jury it could convict appellant of attempting to murder Washington without finding he specifically intended to kill her.

In Bland, supra, 28 Cal.4th 313, the California Supreme Court rejected the application of transferred intent to attempted murder. The court distinguished transferred intent from the concurrent intent to kill everyone within a kill zone. It quoted from a Maryland case, Ford v. State (1993) 330 Md. 682 [625 A.2d 984, 1000-1001] to explain the theory of concurrent intent:

The intent is concurrent . . . 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 victims vicinity. For example, an assailant who places a bomb on a commercial airplaneintending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure As death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device 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 the defendant escalated his mode of attack from a single bullet aimed at As head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in As immediate vicinity to ensure As death. The defendants intent need not be transferred from A to B, because although the defendants goal was to kill A, his intent to kill B was also direct; it was concurrent with his intent to kill A. 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. This situation is distinct from the depraved heart [i.e., implied malice] situation because the trier of fact may infer the actual intent to kill which is lacking in a depraved heart [implied malice] scenario. (Bland, supra, 28 Cal.4th at pp. 329-330.)

Appellant argues that because this case did not involve a bomb, high-powered assault rifle, or firing into an enclosed space, the concurrent intent theory is inapplicable. However, application of the concurrent intent theory is not limited to the extreme examples described in the passage quoted above or the facts of Bland, which involved firing a flurry of bullets at a moving car. (Bland, supra, 28 Cal.4th at p. 331.) Indeed, the quoted passage expressly states that the concurrent intent doctrine applies [w]here the means employed to commit the crime against a primary victim create a zone of harm around that victim, such that the fact finder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone. (Id. at p. 330.) It is a factual determination for the jury.

Appellant expressly declared an intent to kill Johnson, drew a loaded gun, and fired five shots. Melody testified that she watched the events unfold from the porch of Johnsons house, whereas Johnson, her friends, appellant, and his friends were in the street. According to Melody, appellant was about seven feet from Johnson and aimed the gun directly at Johnson. However, Melody also testified that she could not tell if appellant was aiming at Johnson. Washington and four other friends of Johnson were standing in a group. Washington was two feet away from Johnson. Appellants shots were going all over the place and going in all different directions toward the group of women gathered around Johnson. It appeared appellant was moving his hands around. Johnson testified appellant was five to seven feet from her when he drew his gun and began firing, and Washington was more than nine feet behind her. Although Johnson was walking away from appellant at the time, she saw him draw the gun and fire one of the shots. She then began to run. Washington testified the gunman fired toward the group of women that included herself and Johnson. Washington dropped to the ground to protect herself.

Given appellants declared intent to kill Johnson; the physical proximity of Johnson, Washington, and the other women; the number of shots he fired; and his conduct in moving his hand around as he fired shots in slightly different directions as he fired at the group of women, a concurrent intent instruction was supported by the evidence. Whether the circumstances warranted the inference that appellant intended to kill Vicky Washington or intended to kill anyone within the zone of harm was a question for the jury.

Under the circumstances, however, the instruction inadequately states the intent requirement with respect to Washington. The instruction told the jury that to convict appellant of attempting to murder Washington, it must find the following with respect to his intent: he not only intended to kill Linda Johnson Philips, but also either intended to kill Vicky Washington or intended to kill anyone within the zone of harm. In other words, a conviction for attempting to murder Washington required that the jury find appellant intended to kill both Johnson and Washington or that he intended to kill Johnson and anyone within the zone of harm. While this is largely a correct statement of the concurrent intent theory, the instruction fails to tell the jury that Washington must have been within the zone of harm for appellants concurrent intent to encompass her. Concurrent intent necessarily is limited to those within the kill zone or zone of harm around the primary victim. The instruction given would permit the jury to convict appellant of attempting to murder Washington even if she were outside the zone of harm, provided it found appellant intended to kill Johnson and anyone else who actually was within the zone of harm.

An instructional error that improperly describes or omits an element of an offense, such as the concurrent intent instruction here, violates the federal constitution and is subject to review under the standard of Chapmanv.California (1967) 386 U.S. 18, 24, i.e., the error is harmless if it appears beyond a reasonable doubt that it did not contribute to the jurys verdict. (Peoplev.Flood (1998) 18 Cal.4th 470, 504.)

The testimony describing the relative positions of Johnson and Melody and the precise nature of appellants conduct during the shooting left much to the imagination. Melodys testimony was internally conflicting, and she observed the transaction from some distance away and at an undetermined angle. Although she testified Washington was a mere two feet from Johnson, her angle of view may not have been adequate to permit her to accurately determine the distance between Washington and Johnson. In this regard, it is noteworthy that Washington testified that she was on the one side of her car, next to the curb, and Johnson and appellant were in the street, alongside a different car. Johnsons testimony that Washington was more than nine feet from her at the time appellant began shooting was therefore more credible. Once the shooting started, Johnson began to run, whereas Washington dropped to the ground. It is unclear from the record how this affected the distance between the victims, which would, in turn, potentially alter the boundaries or location of the zone of harm. Although Washington may well have been within the zone of harm around Johnson, we cannot conclude that she was so clearly within that zone, especially given the relatively short distance from which appellant shot, that the instructional error did not contribute to the jurys verdict. Accordingly, we reverse. If appellant is retried and the prosecution again relies upon a concurrent intent theory, the trial court must modify the instruction to include, as an element, that Washington was within the kill zone or zone of harm.

2. Sufficient evidence supports appellants conviction of attempting

to murder Washington.

Appellant contends the evidence was insufficient to support his attempted murder conviction with respect to Washington. Specifically, he argues the evidence was insufficient that he intended to kill her.

To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1138.)

Appellants contention ignores the application of concurrent intent. Viewing the evidence in the light most favorable to the verdict, a reasonable jury could find beyond a reasonable doubt that Washington was within the zone of harm, and appellant concurrently intended to kill Johnson and those in her immediate vicinity when he fired five shots in different directions at the group of women. Although the jury was improperly instructed on concurrent intent, as addressed in the preceding section, the evidence would support a guilty verdict by a properly instructed jury. Appellant may therefore be retried if the People so choose.

Given our disposition, we need not address appellants remaining contentions.

DISPOSITION

The judgment is reversed and the cause remanded for further proceedings.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

FLIER, J.

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^[1] Johnson was also known as Linda Marie Phillips.

^[2] The verdict forms incorrectly indicate that the jury found the attempted murders to be willful, deliberate, and premeditated. However, the information did not allege this, the jury was not instructed upon deliberation and premeditation, and the court did not sentence appellant in accordance with such a finding. Neither party notes this error.