THE PEOPLE v. ALPHONSO WALLACE

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ALPHONSO WALLACE, Defendant and Appellant.

B216931

Decided: January 17, 2012

Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Alphonso Wallace timely appealed his convictions for one count of first degree murder, five counts of attempted murder, and one count of shooting at an inhabited dwelling.   Wallace contends that he suffered prejudicial error when the trial court ambiguously modified a pattern jury instruction regarding four of the attempted murder charges.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The November 5, 2007, Shooting (Counts 4 and 5)

In November 2007, Marion Cantlope, his wife Sharon, and their son Traeron, lived on Enslow Drive in the City of Carson.   Young people of the neighborhood gathered at the Cantlope house to play dominoes and chess in the garage with the garage door open.

During November 2007, two shootings took place at the Cantlope house.   The first shooting took place on November 5. At approximately 6:00 p.m., Jesse Gutierrez was at the Cantlope house when someone knocked on the front door.   Gutierrez opened the door, and a young man asked to see Traeron.   Gutierrez told Traeron and returned to the front door to tell the young man Traeron was coming.   At that moment, a gold Acura pulled up in front of the house, and a person in the passenger seat behind the driver began shooting.   Gutierrez heard five or six shots.   No one was hurt, but afterwards Marion found bullet holes in the windows and walls of his house.   A window was shattered and a bullet fragment was found inside the house.

Detective Eric Arias, a gang officer with the Los Angeles County Sherriff's Department, learned about the November 5 shooting and went to locate the gold Acura.   Detective Arias found the car, which had a retractable sunroof, in Stevenson Village, about a mile from the Cantlope house.   The car had been stolen;  the car's hood was warm to the touch.

Inside the car was a Seattle Mariners baseball cap with an “S” on it.   According to Detective Arias, members of the Stevenson Village gang favored such hats because of the “S.”

B. The November 21, 2007, Shooting (Counts 6 through 10)

The second shooting at the Cantlope house happened on November 21.   The garage door was open and several persons had gathered in the garage and driveway.   Llewelyn Miller had arrived with Denesha Collins, who parked her car across the street from the Cantlope house.   Also present were Marion Cantlope, Jesse Gutierrez, and Damone Johnson.

La Tonja Strattion had pulled her car into the Cantlope driveway so that Gutierrez could check a malfunctioning window.   When Gutierrez finished with Strattion's car, Strattion got in her car, where James Eddings had been waiting.

Gutierrez then noticed a dark-colored sedan with tinted windows coming down Enslow Drive.   Miller was walking down the Cantlope driveway to cross the street to Collins's car, when the dark-colored sedan pulled up and stopped directly in front of him, its windows halfway down.   Someone in the car asked, “What's up, cuz?”   When Miller leaned in to see who was in the car, gunshots erupted.   Two guns were firing from the car, one from the driver's side window, and the other from the passenger's window behind the driver.

Miller “saw flashes” and ducked and ran back toward the garage.   He was shot seven times:  five times in his torso and legs, and two bullets grazed his head.   As Miller ran, he saw Johnson get shot in the head and fall to the ground.

The others at the Cantlope house also scattered at the sudden gunfire.   Gutierrez saw someone get out of the passenger side of the car and start shooting.   Gutierrez ran into the garage and then into the house.   Marion, who was in the garage, heard the gunshots and scrambled to get behind something.   Strattion and Eddings ducked down inside Strattion's car.   When Strattion looked around next, a dark car was driving north on the street.   Strattion pulled her car into the Cantlope garage and saw Johnson lying in the driveway.   She also saw blood on the trunk of her car and a bullet hole in her car bumper.

The next day, police recovered the dark-colored car a few houses away from the house of Wallace's grandparents.   Forty-caliber shell casings were found on the driver's side of the roof and near the windshield wipers.   In a yard near where the car was found, police found five other bullet casings, all of which had been fired from the same .38–caliber gun.

Miller and Johnson were the only victims the shooters hit.   Johnson's head wound turned out to be fatal;  he was also shot in the leg.   The bullet recovered from Johnson's head was consistent with a .38–caliber cartridge.   Miller was in the hospital for a month following the shooting, and in an induced coma for three weeks.   At the time of trial, Miller still suffered headaches and had difficulty with bowel movements.

C. Wallace's Confession

Wallace was arrested at his grandparents' house on December 7, and taken into custody.   Detective Arias and Detective Richard Biddle interviewed Wallace on December 10 and 11.1

During the interviews, Wallace confessed to participating in both the November 5 and the November 21 shootings.   Wallace further admitted that he was a member of the Stevenson Village Crips gang, that he knew fellow gang member Reginald Hayes well, and that he had heard the 190 East Coast Crips gang had murdered Hayes.   Wallace claimed Hayes's death had resulted in additional shootings.

Detective Arias, a criminal gang expert, knew Wallace from numerous personal interactions with him and corroborated Wallace's gang membership.   Detective Arias further noted that Hayes's death in July 2007 had touched off numerous shootings back and forth between the two gangs.   Based on his conversations with Wallace and his investigation, Arias stated he believed that the November 5 and November 21 shootings were committed in association with or for the benefit of the Stevenson Village Crips.

D. Wallace's Trial and Sentencing

Two informations charged Wallace with 10 counts.   The first information alleged two counts of attempted willful, deliberate, premeditated murder and one count of shooting at an occupied vehicle, stemming from an incident on November 30 (counts 1–3).

The second information charged Wallace with five additional counts of attempted murder (designated as counts 4, 7, 8, 9, and 10), another count of shooting at an inhabited dwelling/vehicle (designated as count 5), and one count of first degree murder (designated as count 6), alleged to have occurred on two separate incidents on November 5 and 21.

A jury convicted Wallace on counts 4 through 10 and found gun use and gang allegations to be true.   The jury acquitted Wallace on counts 1 through 3.

The court sentenced Wallace to a total of 90 years and four life terms.

Discussion

Wallace argues that in instructing the jury on attempted murder, the trial court misstated the relevant law and misled the jury.   We disagree.

I. Forfeiture

As a threshold matter, we note that Wallace failed to request any clarifying language for the challenged CALCRIM No. 600 instruction.   Generally, if a defendant fails to request amplifying or clarifying language at trial, he cannot challenge on appeal an instruction otherwise correct in law and responsive to the evidence.  (People v. Hart (1999) 20 Cal.4th 546, 622.)   Nevertheless, even if a defendant fails to object, we may review any instruction that prejudices a defendant's substantial rights (§ 1259;  People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103, fn. 34) or misstates applicable law (People v. Hudson (2006) 38 Cal.4th 1002, 1012).

By failing to request clarifying language at trial, Wallace therefore forfeited his challenge to the clarity or completeness of the instruction.   Furthermore, even if Wallace had properly preserved his right to challenge the allegedly ambiguous instruction, we would still reject his challenge because the modified instruction correctly stated the law and was not prejudicial.

II. CALCRIM No. 600

“An erroneous instruction requires reversal only when it appears that the error was likely to have misled the jury.”  (People v. Tatman (1993) 20 Cal.App.4th 1, 10.)   When examining a jury instruction for error, we first determine what the relevant law provides.  (People v. Kelly (1992) 1 Cal.4th 495, 525;  People v. Warren (1988) 45 Cal.3d 471, 487.)   We next consider “the specific language under challenge and, if necessary, the charge in its entirety” to determine how a reasonable juror would understand the instruction.  (Warren, at p. 487.)  “Finally, we determine whether the instruction, so understood, states the applicable law correctly.”  (Ibid.)

To begin with, under California law, an attempt to commit a crime is itself a crime subject to punishment that bears some relation to the completed offense. (§ 664;  see also People v. Toledo (2001) 26 Cal.4th 221, 229.)  “An attempt to commit a crime consists of two elements:  a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)   A trier of fact may infer specific intent to commit a crime from direct or circumstantial evidence.  (People v. Neal (1950) 97 Cal.App.2d 668, 672.)   Mere preparation to commit a crime is not sufficient;  attempt requires a movement after preparation “that would have accomplished the crime if not frustrated by extraneous circumstances.”  (People v. Carpenter (1997) 15 Cal.4th 312, 387.)

Although attempted murder and murder are related offenses, the intent element of attempted murder differs from the intent element of murder in two significant ways.   First, because attempt requires specific intent, convicting a suspect of attempted murder may sometimes requires a higher showing of intent than murder itself.  “Murder does not require the intent to kill.   Implied malice—a conscious disregard for life—suffices.”  (People v. Bland (2002) 28 Cal.4th 313, 327.)   By contrast, a person who does not expressly intend to kill cannot be convicted of attempted murder.  (Id. at pp. 327–328.)

Second, whereas the doctrine of transferred intent applies to murder, courts have declined to infer transferred intent in cases of attempted murder.   Under the traditional doctrine of transferred intent, a defendant who shoots with the intent to kill someone, but instead inadvertently kills a bystander, is criminally liable for murder as if the bullet had struck his initial target.   (People v. Bland, supra, 28 Cal.4th at pp. 320–321.)   However, this reasoning only applies to persons actually killed, not to persons not killed as a result of a failed murder attempt.  (Id. at p. 327.)  “Someone who intends to kill only one person and attempts unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not of others.”  (Id. at p. 328.)

When a defendant intentionally directs deadly force toward a group of potential victims, however, we may apply a theory of concurrent intent.   For example, “ ‘consider 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.’ ”  (People v. Bland, supra, 28 Cal.4th at p. 330.)   In such a case, “ ‘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.’ ”  (Ibid.)

Here, Wallace challenges the trial court's changes to the “kill zone” paragraph of CALCRIM No. 600.   In its unmodified form, the “kill zone” paragraph of CALCRIM No. 600 states:

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.”   In order to convict the defendant of the attempted murder of _ , the People must prove that the defendant not only intended to kill _ but also either intended to kill _, or intended to kill everyone within the kill zone.   If you have a reasonable doubt whether the defendant intended to kill _ or intended to kill _ by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of _< insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory >.  (Original italics.)

When instructing the jury at Wallace's trial, the court gave the following modified version of the “kill zone” paragraph of CALCRIM No. 600:

[T]he People must prove that:  [¶] ․ The defendant intended to kill that (person);  [¶] ․ 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 or “kill zone.”   In order to convict the defendant of the attempted murder of La Tanja Strattion, James Eddings, Marion Cantelope (sic) in Counts 8, 9 and 10, the People must prove that the defendant not only intended to kill Llewelyn Miller, but also intended to kill anyone within the kill zone or intended to kill Llewelyn Miller harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of the victims in Counts 8, 9, and 10.  (Emphasis added.)

Wallace raises three arguments against this modified instruction:  (1) changing “everyone” to “anyone” allowed the jury to convict Wallace of attempting to murder a victim without finding a specific intent to murder that victim;  (2) changing “by killing” to “harming” allowed the jury to convict Wallace of attempted murder upon a lesser finding that he only intended to harm and not kill;  and (3) omitting the word “either” and the phrase “if you have a reasonable doubt” provided the jury with no basis to convict Wallace of any attempted murder.   These arguments are meritless.

Wallace first argues that when the court changed “everyone” to “anyone,” the court allowed the jury to convict Wallace of attempted murder without finding a specific intent to kill.   As Wallace alleges,

[T]he instruction told the jurors that to prove the attempted murder of Stratton [sic] in count eight, jurors had to find only that [Wallace] intended to kill Miller and anyone else, but not Stratton [sic].   The error applied equally to each attempted murder count in counts seven through 10.   Under the instructions given, the jury could have convicted appellant of each attempted murder count even though the jury could have convicted appellant of each attempted murder count even though the jury was not convinced [Wallace] had the intent to kill the attempted murder victim in the count.

People v. Campos (2007) 156 Cal.App.4th 1228, rejected the argument Wallace makes here regarding the change from “everyone” to “anyone.”   In that case, while leaning out the passenger window of a truck, defendant fired numerous shots at a vehicle several feet in front of him, killing two victims.  (Id. at p. 1233.)   The Campos court held that the trial court's instructions on express malice and attempted murder were sufficient on the elements of the offense.  (Id. at p. 1243.)   Furthermore, the court held that the “kill zone” paragraph of CALCRIM No. 600 was superfluous insofar as the concurrent intent theory espoused therein “ ‘is not a legal doctrine requiring special jury instructions.’ ”  (Id. at p. 1243.)   Instead, concurrent intent “ ‘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.’ ”  (Ibid.) As the court reasoned, “[T]here is little difference between the words ‘kill anyone within the kill zone’ and ‘kill everyone within the kill zone.’   In both cases, there exists the specific intent to kill each person in the group.   A defendant who shoots into a crowd of people with the desire to kill anyone he happens to hit, but not everyone, surely has the specific intent to kill whomever he hits, as each person in the group is at risk of death due to the shooter's indifference as to who is his victim.”   (Italics added.)  (Ibid.)

Here, Wallace had the specific intent to kill whomever he indiscriminately shot at outside the Cantlope house on November 21, as he placed each person in the group outside the house at risk of death.   In a prior incident, Wallace and Jones had driven by the Cantlope house and shot at Jesse Gutierrez on November 5, but failed to hit him.   As Wallace told Detective Arias, he and Jones performed the November 5 drive-by to retaliate for Reginald Hayes's murder in July 2007.   Arias further testified that the same retaliatory motive likely drew Wallace and Jones back to the Cantlope house on November 21.   By shooting at the group outside the house, Wallace therefore specifically intended to place “each person in the group ․ at risk of death.”  (People v. Campos, supra, 156 Cal.App.4th at p. 1243.)

Even if the trial court's substitution of “anyone” for “everyone” was erroneous, this error was harmless insofar as it was not reasonably probable that a correct instruction would have resulted in a more favorable verdict for Wallace.  (People v. Campos, supra, 156 Cal.App.4th at p. 1244 [citing People v. Palmer (2005) 133 Cal.App.4th 1141, 1157[“[M]isdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836.”].) 2 Here, the evidence of Wallace's intent was substantial under the “kill zone” theory or otherwise.   Like Reginald Hayes, Wallace was a member of the Stevenson Village Crips gang, which was a rival to the 190 East Coast Crips gang.   After Hayes's murder in July 2007, allegedly by a 190 East Coast Crips member, numerous shootings back and forth between the two gangs had taken place.   Wallace and Jones had performed nearly identical drive-by shootings at the Cantlope house on two different occasions.   On this evidence, a jury would almost certainly have found that Wallace had intended to kill anyone and everyone standing outside the Cantlope house on November 21.

Thus, as in Campos, Wallace's attempt to make a material distinction between “everyone” and “anyone” fails.   The same modification of CALCRIM No. 600 that the Campos court found immaterial had no bearing on how a reasonable juror at Wallace's trial would understand the instruction.   Like the jury in Campos, the jury here was properly instructed on express malice and attempted murder and found that Wallace had the necessary specific intent to convict him of attempted murder on counts 7, 8, 9, and 10.

Wallace then claims that changing “by killing” to “harming” allowed the jury to convict Wallace of attempted murder only upon finding an intent to harm, rather than kill.   As the People correctly observe, this argument was rejected in People v. Bragg (2008) 161 Cal.App.4th 1385, 1395–1396, where the defendant made an identical claim.   Like the court in Bragg, we similarly conclude that no reasonable juror “could have failed to understand from the instructions as a whole” that “harm” meant “harm of death” and that an attempted murder conviction requires a defendant's intent to kill his victims.  (Id. at p. 1396.)

Next, as the People note, if the third error Wallace alleges were true, then omitting “either” and “if you have a reasonable doubt” would require the jury to find Wallace not guilty of attempted murder on Counts 7, 8, 9, and 10.   Because any alleged error here would favor and not prejudice Wallace, such error is by definition harmless.

Finally, Wallace argues that the instruction failed to define the spatial extent of the “kill zone,” or whether Miller, Strattion, Eddings, or Cantlope were within the “kill zone” at all.

The Supreme Court noted that “kill zone” could apply to a situation where an assailant placed a bomb on a commercial airplane with the intent to kill everyone on board or to a hail of bullets from a drive-by shooter directed at a group of victims.  (People v. Bland, supra, 28 Cal.4th at pp. 329–330.)   In Bland, the Court held that defendant's shooting at victims inside a car with a .38–caliber handgun was sufficient to create a “kill zone.”  (Id. at p. 333.)   Spraying a residence with gunfire also creates a “kill zone” where defendants intended to kill every living being inside.  (People v. Vang (2001) 87 Cal.App.4th 554, 563–564.)

Here, Wallace and Jones created a “kill zone” similar to those in Bland and Vang when they fired their weapons at the Cantlope house and Strattion's car.   After they began shooting, they placed anyone and everyone in the Cantlope's driveway at risk of fatal injury.   Thus, Wallace cannot claim that the jury instruction's failure to define the scope of the “kill zone” is error warranting reversal of his convictions for the attempted murders of Miller, Strattion, Eddings, and Cantlope.

III. Sentencing

The People note that the “Other Orders” section of Wallace's abstract of judgment erroneously states that the total term imposed was 50 years to life in state prison, with all other terms to run concurrently.   Because the trial court imposed “a total of 90 years and four life terms,” the abstract of judgment is corrected to reflect that sentence.

Disposition

The judgment is affirmed.   The May 21, 2009, abstract of judgment is corrected to reflect appellant's total sentence of 90 years and four life terms.   The superior court is ordered to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment reflecting that change.

We concur:

FOOTNOTES

FN1. The interviews were recorded and the audiotapes were played for the jury..  FN1. The interviews were recorded and the audiotapes were played for the jury.

FN2. Citing People v. Flood (1998) 18 Cal.4th 470, 502–594, the People suggest the standard to apply here is harmless beyond a reasonable doubt.   Nevertheless, Wallace was clearly not prejudiced by the ambiguity (if any) in CALCRIM No. 600, as the instructions taken as a whole allowed the jury to properly convict Wallace of attempted murder on counts 7 through 10.   Thus, under either standard, the lack of prejudice to Wallace renders the ambiguous jury instruction harmless error..  FN2. Citing People v. Flood (1998) 18 Cal.4th 470, 502–594, the People suggest the standard to apply here is harmless beyond a reasonable doubt.   Nevertheless, Wallace was clearly not prejudiced by the ambiguity (if any) in CALCRIM No. 600, as the instructions taken as a whole allowed the jury to properly convict Wallace of attempted murder on counts 7 through 10.   Thus, under either standard, the lack of prejudice to Wallace renders the ambiguous jury instruction harmless error.

PERLUSS, P. J. JACKSON, J.