P. v. Guerrero

Filed 10/27/06 P. v. Guerrero CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed.

Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was convicted of two counts of attempted premeditated murder based on his firing a single shot at two women during the course of a botched robbery. Relying on the fact he fired only one shot, he contends one of the counts must be reversed for insufficient evidence. He also contends the court prejudicially erred in giving CALJIC No. 8.66.1, the so-called “kill zone” instruction. We disagree with his contentions and affirm the judgment.

* * *

On April 10, 2000, appellant robbed Tommie Hunt while she was working at the Cigarettes Cheaper store in Garden Grove. In the wake of this incident, Hunt was transferred to the Cigarettes Cheaper store in Buena Park. Unfortunately, though, this did not prevent her from having another run-in with appellant.

On July 10, three months after the first robbery, she and fellow employee Ann Marie Carey drove to the bank to make a $2,000 deposit for the store. Walking up to the bank, they heard a car door slam and approaching footsteps. When they turned around, they saw appellant with a nine-millimeter semiautomatic handgun. Appellant pointed the weapon at Carey and demanded her money. Then he tried to grab her purse, but she turned away. After that, he pointed the gun at Hunt and threatened to kill her if she did not surrender her purse, in which the store money was located. Hunt told him she didn’t have anything, but appellant insisted otherwise and again demanded her purse. He then grabbed Hunt’s purse, but the strap broke and she was able to retain it.

Carey saw a man in the parking lot and yelled for him to call 911. This prompted appellant to turn and run away, but that was not the end of it. After the women reached the front doors of the bank, they turned around and saw appellant running toward them with his gun arm extended toward them. The women were standing about a foot apart and about 10 to 30 feet from appellant when he fired a single shot in their direction. Hunt thought the bullet struck something behind her, and a witness saw a puff of smoke come off the wall directly behind the women, but no definitive bullet mark was ever found. Following the shot, the women ran into the bank and appellant fled the scene.

Testifying on his own behalf, appellant claimed he only intended to rob Hunt and Carey, not kill them. He said he brought the gun along to show them he was serious, but when they refused his demands, he got flustered and scared. Thinking he might get jumped by bystanders, he decided to give up on the robbery. However, as he was running away, he began to feel embarrassed about the whole ordeal, so he turned back toward the women and fired his gun. He testified he fired at an empty lot across the street from the bank, but he told the police he fired into the sky.

Appellant was charged with, inter alia, two counts of attempted premeditated murder. The jury was told that in order to convict appellant on those counts, it would have to find he acted with express malice, meaning he specifically intended to kill both Hunt and Carey. The jury was also told, “A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk (sometimes known as a ‘kill zone.’) The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim’s vicinity.” (See CALJIC No. 8.66.1.)

During closing argument, the prosecutor argued the evidence was “consistent with a kill zone” and that even if appellant primarily intended to kill one person, he could also have had the concurrent intent to kill everyone else in that zone. The prosecutor also claimed appellant was guilty of attempted murder by virtue of the fact he shot “at the two victims, attempting to kill them.” He argued appellant was so embarrassed and frustrated over the botched robbery that “thinking about it, turning around and firing a shot, he intended to kill [both women], and he did it with premeditation, and deliberation.”

The defense did not argue the issue of whether appellant could be convicted of two counts of attempted murder for firing a single shot. Rather, it submitted appellant lacked the intent to kill, and therefore was not guilty of attempting to murder anyone. However, the jury disagreed and convicted appellant of two counts of attempted premeditated murder.

I

Appellant contends that because he fired but one shot at the women, there is insufficient evidence to support his conviction for two counts of attempted premeditated murder. We disagree.

“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘”The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”’ [Citations.]“ (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).)

In Smith, our Supreme Court set forth the legal principles that are applicable in deciding whether the evidence can support a conviction for two counts of attempted murder based on the act of firing a single shot at two people. First, attempted murder requires the specific intent to kill, i.e., express malice. (Smith, supra, 37 Cal.4th at p. 739.) “Express malice requires a showing that the assailant ‘”’either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ [Citation.]”’ [Citations.]” (Ibid.)

Second, “[w]hether the defendant acted with specific intent to kill ‘must be judged separately as to each alleged victim.’ [Citation.]” (Smith, supra, 37 Cal.4th at p. 740.) “[T]he doctrine of transferred intent does not apply to attempted murder . . . .” (Ibid.)

Third, “evidence of motive is often probative of intent to kill.” (Smith, supra, 37 Cal.4th at p. 741.) However, such evidence “is not required to establish intent to kill, and evidence of motive alone may not always fully explain the shooter’s determination to shoot at a fellow human being with lethal force.” (Ibid.) Fourth, “[I]ntent to kill or express malice . . . may in many cases be inferred from the defendant’s acts and the circumstances of the crime. [Citation.] . . . ‘The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .” [Citation.]’ [Citations.] “‘The fact that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance. Nor does the fact that the victim may have escaped death because of the shooter’s poor marksmanship necessarily establish a less culpable state of mind.’ [Citations.]” (Smith, supra, 37 Cal.4th at p. 741.) And finally, “‘if the jury found defendant’s use of a lethal weapon with lethal force was purposeful, an intent to kill could be inferred, even if the act was done without advance consideration and only to eliminate a momentary obstacle or annoyance.‘ [Citation.]” (Smith, supra, 37 Cal.4th at p. 741.) “The point is that where the act of purposefully firing a lethal weapon at another at close range gives rise to an inference of intent to kill, that inference is not dependent on a further showing of any particular motive to kill the victim.” (Ibid.)

Applying these principles to the facts before it, the Smith court upheld the defendant’s conviction for two counts of attempted murder based on his firing a single bullet into a slow moving car. The victims were his ex-girlfriend Karen, the driver of the car, and her baby, who was secured in a car seat directly behind her. Karen’s new boyfriend was also on the scene, and in fact, he scuffled with the defendant just before the shooting. From a distance of about 15 feet, the defendant fired from directly behind the car as it was pulling away from the curb. The bullet passed through the rear windshield, narrowly missing both Karen and her baby. (See Smith, supra, 37 Cal.4th at pp. 736-737, 742-743.)

Although the defendant conceded there was sufficient evidence he intended to kill Karen, he claimed there was insufficient evidence he intended to kill, or even disliked, the baby. However, the court found “his very act of discharging a firearm into the car from close range and narrowly missing both mother and baby could itself support such an inference. Indeed, given defendant’s claim at trial that Karen was his ex-girlfriend, and given the circumstance that she had just arrived on the scene with a new boyfriend and their baby, the jury could well have inferred that defendant felt ‘animus’ toward both the mother and her baby when he started shooting. In any event, even if defendant subjectively believed he had a particular reason or cause to shoot at the mother, that does not preclude a finding that he also harbored express malice toward the baby when he fired into the vehicle with both victims directly in his line of fire. Defendant’s assertion on appeal -- that his motive to kill Karen but not the baby establishes his intent to kill but precludes a finding that he also harbored express malice toward the baby -- is without support in the facts or the law.” (Smith, supra, 37 Cal.4th at p. 744.)

Smith also rejected the notion that firing a single bullet cannot, as a matter of law, support two counts of attempted murder. Relying on People v. Chinchilla (1997) 52 Cal.App.4th 683, Smith observed, “The Chinchilla court affirmed two convictions of attempted murder based on the firing of a single bullet at two police officers who were crouched, one behind the other, in the shooter’s line of fire. The court held that ‘intent to kill two different victims can be inferred from evidence that the defendant fired a single shot at two victims, both of whom were visible to the defendant.’ [Citation.]” (Smith, supra, 37 Cal.4th at p. 744.) “[T]hat the defendant in Chinchilla, for whatever reason, fired only a single shot was not dispositive.” (Id. at p. 745.)

The Supreme Court then turned its attention to the case of People v. Bland (2002) 28 Cal.4th 313. In explaining why that case was not dispositive of the single-shot issue, the court stated, “Bland simply recognizes that a shooter may be convicted of multiple counts of attempted murder on a ‘kill zone’ theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the ‘kill zone’) as a means of accomplishing the killing of that victim. Under such circumstances, a rational jury could conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted victim, but also all others he knew were in the zone of fatal harm. [Citation.] As we explained in Bland, ‘This concurrent intent [i.e., ‘kill zone’] theory is not a legal doctrine requiring special jury instructions. . . . Rather, it is simply a reasonable inference the jury may draw in a given case: a primary intent to kill a specific target does not rule out a concurrent intent to kill others.’ [Citation.]” (Smith, supra, 37 Cal.4th at pp. 745-746.)[1]

As it turned out, however, the kill zone theory was not presented to the jury in Smith, so the Supreme Court declined “to decide under what factual circumstances, if any, the firing of a single bullet might give rise to multiple convictions of attempted murder under Bland’s kill zone rationale.” (Smith, supra, 37 Cal.4th at p. 746, fn. 3.) For purposes of the defendant’s convictions in Smith it was enough that he specifically intended to kill both victims. Irrespective of the kill zone theory, that was sufficient to justify two counts of attempted murder. (Id. at p. 746.)

Appellant attempts to distinguish Smith and Chinchilla on the basis the victims in those cases were in the line of fire during the shootings, whereas his victims were side by side when he shot at them. He argues his bullet could not have struck both women and therefore he could not have intended to kill both of them. Appellant is wrong on both counts. For one, experience teaches that bullets don’t always come to a stop after they hit a person. Sometimes they keep going or ricochet in another direction, which gives rise to the possibility of their striking a second victim. Alas, it is not impossible, as appellant suggests, for a single bullet to strike two people who are in close proximity to each other. (See Smith, supra, 37 Cal.4th at p. 755 (dis. opn. of Werdergar, J.) [acknowledging a single bullet can kill two people].)

More importantly, there is nothing in Smith or Chinchilla that suggests their holdings are limited to the situation where the defendant’s shot is capable of striking both victims. The location of the victims was obviously a factor in those cases, but in Smith the point of emphasis was on defendant’s act of discharging from close range a lethal firearm at victims whom he resented. (Smith, supra, 37 Cal.4th at pp. 744-748.) And in Chinchilla, the crucial issue was not whether the defendant’s shot could hit both victims, but simply whether the defendant could see both victims when he fired his gun. (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690.) In the end, the court held, “Where a defendant fires at two officers, one of whom is crouched in front of the other, the defendant endangers the lives of both officers and a reasonable jury could infer from this that the defendant intended to kill both.” (Id. at p. 691.)

Here, appellant’s act of firing a lethal weapon at the victims from close range similarly gives rise to the inference that he intended to kill both victims. He certainly could see both victims, he certainly endangered the lives of both victims, and he certainly harbored animosity toward both victims. He was upset and embarrassed over the fact neither one of them would surrender their money, despite his repeated demands at gunpoint. Instead of just living with the anger and humiliation this engendered, appellant decided to fire his gun at the victims. And he did so while running toward them with his gun arm outstretched, an action which obviously diminished his chances of accuracy and supports a finding he was equally satisfied with the prospect of killing either. He does not dispute he had the intent to kill, or that he acted with premeditation. He simply disagrees with the jury’s conclusion that he intended to kill both of the victims. But given the way the shooting played out, there is no rational basis to distinguish his intent vis-Ã -vis the two women. Rather, it appears he had equal reason to try to kill both of them. We therefore find sufficient evidence to support his conviction for two counts of attempted premeditated murder.

II

Given this conclusion, we need not decide whether there was sufficient evidence to support appellant’s convictions for attempted murder on the alternative “kill zone” theory. However, as noted, the jury was instructed on this theory, and appellant contends its inclusion mandates reversal “because the firing of one bullet in the direction of multiple possible targets is insufficient as a matter of law for multiple convictions of attempted murder under a ‘kill zone’ theory.”

As noted, the Smith court considered, but did not resolve, this issue because there was sufficient evidence the defendant intended to kill both of the victims in that case. (See Smith, supra, 37 Cal.4th at p. 746, fn. 3.) Likewise here, we need not decide the applicability of the kill zone theory because there is sufficient evidence appellant specifically intended to kill both Hunt and Carey. However, even if we were to assume the kill zone theory was inapplicable in this case, that would not warrant a reversal.

The Supreme Court has made it clear the kill zone theory is not a legal doctrine, but simply a factual theory by which the jury can infer that the defendant harbored concurrent intent to kill in a given case. (Smith, supra, 37 Cal.4th at p. 746; People v. Bland, supra, 28 Cal.4th at p. 331, fn. 6.) When a jury is instructed on a factually inadequate theory, “reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.) In other words, “If a jury reaches a general verdict on more than one factual theory, one or more of which is supported by the evidence and one of which is not, an appellate court will presume, unless the record shows otherwise, the jury acted properly and relied on a supported theory. [ Citation.]” (People v. Lucas (1997) 55 Cal.App.4th 721, 733-734.)

Here, there is sufficient evidence to support appellant’s convictions for attempted murder on the basis he harbored the specific intent to kill each of the victims. And there is nothing in the record showing the jury relied on the arguably inadequate kill zone theory. Although this theory was included in the jury instructions and mentioned in closing argument, the jury could just as easily have decided the case on the theory appellant targeted both of the victims. Because there is not “an affirmative indication in the record” that the jury based its verdict on the kill zone theory, there is no basis to disturb appellant’s convictions for attempted murder. (People v. Guiton, supra, 4 Cal.4th at pp. 1128-1129.)

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

O’LEARY, J.

IKOLA, J.

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[1] “‘For example, an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly . . . a defendant who intends to kill A and, in order to ensure A’s 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 . . . 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.’” (People v. Bland, supra, 28 Cal.4th at pp. 329-330, quoting Ford v. State (1992) 330 Md. 682 [625 A.2d 984].)