The PEOPLE, Plaintiff and Respondent, v. Damon Lamar BOOKER et al., Defendants and Appellants.
Codefendants Damon Lamar Booker and George Lewis appeal from judgments of conviction entered after a jury trial for first degree murder; attempted willful, deliberate, and premeditated murder; and shooting at an occupied vehicle. The jury found true the special allegations Booker personally used a firearm causing great bodily injury or death in the commission of the offenses and the offenses were committed for the benefit of a criminal street gang.
In the published part of the opinion we address Booker's and Lewis's contentions the trial court prejudicially erred in instructing the jury on the “kill zone” theory of concurrent specific intent to prove the attempted murder in light of the Supreme Court's holding in People v. Canizales (2019) 7 Cal.5th 591, 596-597, 248 Cal.Rptr.3d 370, 442 P.3d 686 (Canizales) that “a jury may convict a defendant under the kill zone theory only when the jury finds that: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm.” We agree with Booker and Lewis this is not one of the “relatively few cases in which the [kill zone] theory will be applicable and an instruction appropriate.” (Id. at p. 608, 248 Cal.Rptr.3d 370, 442 P.3d 686.) It was prejudicial error for the trial court to instruct the jury on the kill zone theory.
In the unpublished portion of the opinion we address Booker's and Lewis's arguments the trial court erred in failing to instruct the jury certain trial witnesses were accomplices as a matter of law; there is insufficient evidence to corroborate the testimony of those witnesses; the court erred in failing to hold a hearing on juror misconduct; and remand is necessary for the trial court to exercise its discretion whether to strike the firearm enhancements. We also consider Booker's assertion his trial counsel provided ineffective assistance of counsel and Lewis's argument the trial court committed instructional error. These contentions lack merit.
We reverse Booker's and Lewis's convictions of attempted murder and remand for further proceedings consistent with this opinion. In all other respects we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
An information charged Booker and Lewis, along with codefendants William Weaver, Marcus Posey, and Jeremiah Stone, with the first degree murder of Jose Raya (Pen. Code,1 § 187, subd. (a); count 1); the attempted willful, deliberate, and premeditated murder of Reann Lott (§§ 187, subd. (a), 664; count 2); and shooting at an occupied vehicle (§ 246; count 3). As to all counts, the information alleged the defendants committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)); Booker or a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)); Booker or a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); and Booker or a principal personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d) & (e)(1)).
Booker and Lewis pleaded not guilty and denied the special allegations. Before trial all defendants moved to dismiss the charges against them pursuant to section 995. The trial court granted the motions by Weaver, Stone, and Posey, but denied the motions by Booker and Lewis.
An amended information additionally alleged as to each count both Booker and Lewis suffered two prior convictions of serious or violent felonies, which constituted strikes within the meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12).
B. The Evidence at Trial
1. The People's case
a. The shooting
Lott testified she was with her boyfriend Raya on the evening of December 17, 2016. Lott and Raya drove in Lott's car, a white Pontiac Grand Prix, to a liquor store to buy beer. As Lott walked to the entrance of the liquor store, she noticed a white car with tinted windows parked in a lot on the side of the building. Lott thought the back end of the white car and its lights resembled her own car. As other cars drove by, their lights illuminated the inside of the white car, and Lott saw “there [were] a lot of people in the car.”
Inside the liquor store, Raya saw a friend near the counter and started talking with him. Lott left Raya with his friend and walked into another aisle to get the beer.
Booker, Lewis, Weaver, Stone, and Posey entered the store together, then separated and moved throughout the store.2 As the men spoke to one another, Lott heard the men used the word “cuzz,” which Lott recognized as slang commonly used by members of Crips street gangs. The men were staring at Raya and his friend. Lott felt tension in the air.
Raya's friend asked the men where they were from. One of the men answered “Fruit Town,” to which Raya's friend responded he “was cool with them.” Raya did not speak to the men, nor did they speak to Raya. Raya was not a member of any gang. Shortly thereafter, the five men left together without buying anything.
When Raya and Lott left the store, the white car with tinted windows was no longer parked in the lot. The two returned to Lott's car. Raya drove, and Lott was in the front passenger seat. They drove down 130th Street toward Lott's home. Raya told Lott the man he was speaking with in the store was a friend and a member of the Largo street gang. Lott then noticed a white car following closely behind their car on 130th Street. The white car was “riding” their bumper. Lott said to Raya, “[T]hey look like they're about to hit us.” Raya stopped at a stop sign or stop light. The white car pulled up next to Lott's car on the driver's side “within seconds” of Raya stopping the car. Lott recognized the car was the same white car from outside the liquor store. Raya told Lott to duck down, which she did. As she ducked, Lott saw a hand emerge from the front passenger window of the white car, and she heard five shots fired at their car. Lott was not hit. The white car then drove in reverse. A black car in front of them also “drove off.” Lott could not recall whether the black car drove forward or in reverse after the shooting. Lott did not remember whether there was a third car. After the shooting, Lott's car rolled forward then stopped when Raya “smashed on the brakes.”
At around 6:43 that evening, Los Angeles County Sheriff's Department (LASD) Deputy David Navarrete heard the sound of gunshots while on patrol and responded to the scene of the shooting. While traveling northbound on Wilmington Avenue from 131st Street, Deputy Navarrete observed a white Grand Prix stopped in the middle of the road blocking traffic. Deputy Navarrete saw a man in the driver's seat of the car slumped over and bleeding from his head. Paramedics on the scene determined Raya was dead. The driver's side front window of the Grand Prix was shattered, but there was no damage to any other windows. No bullet holes were found on the car's body or doors. Deputy Navarrete estimated it would take one minute to drive from the liquor store to the scene of the shooting on 130th Street.
LASD Detective Kasey Woodruff also responded to the scene of the shooting on the evening of December 17. Detective Woodruff obtained surveillance footage from a video camera mounted inside the liquor store and two video cameras hung outside Greater Zion Church, located at the corner of 130th Street and Wilmington Avenue. Surveillance video of the interior of the liquor store taken the night of the shooting showed Booker, Lewis, Weaver, Stone, and Posey in the store.3
At approximately 6:40 p.m. on December 17, Frederick Gordon, an elder in the Greater Zion Church, was inside the church when he heard “pops” outside that sounded like gunfire. He went outside to check and saw “a car backing up from 130th.” One of the church surveillance videos showed a white car driving down 130th Street, followed by two more white cars, and then a black car. The video then showed the black car driving in reverse, followed by a white car also driving in reverse, returning the way they came. Another church surveillance video from the same time period showed a white car driving down 130th Street toward Wilmington Avenue. When the white car stopped at the intersection of Wilmington Avenue, a second white car maneuvered around to the driver's side of the first car. A third white car approached the two cars from behind, and then drove in reverse back the way it came.
Forensic pathologist Scott Luzi testified Raya was shot once in his left arm above the elbow and twice in his head near his left ear. Dr. Luzi determined Raya died from multiple gunshot wounds to the head. Raya's injuries were consistent with Raya having raised his left arm to the same level as his head at the time he was shot.
b. The initial arrest of Booker and search of his vehicle
Los Angeles Police Officer Oscar Morales was on patrol on the evening of January 4, 2017. He observed two Black males running and then entering a four-door white Oldsmobile Intrigue with tinted windows. Officer Morales made a U-turn to follow the white car, which then crossed four lanes of traffic without signaling. Officer Morales activated his patrol car's lights and sirens to effectuate a stop, but the white car accelerated. Officer Morales followed the car until it struck a fence. The driver (Booker) exited the vehicle, slipped through the fence, and began to run down an alley. Officer Morales caught up with Booker and arrested him. Detective Woodruff searched the car after it was impounded and recovered a wallet containing Booker's name and photograph from the inside panel of the driver's side door and a document with Booker's name inside the center console. The car was tested for gunshot residue, but none was found.
c. The arrests and interviews of Booker, Weaver, Posey, Stone, and Lewis
On February 16, 2017 sheriff's deputies arrested Booker (following his earlier release), Weaver, and Posey for Raya's murder. In his recorded interview with Detectives Woodruff and Karen Shonka, Weaver admitted he was a member of the Poccet Hood Compton Crips street gang 4 “since [he] was young.” Detective Woodruff informed Weaver there was a warrant for his arrest for murder and asked him whether anything happened with Booker, Lewis, and other Poccet Hood gang members on December 17, 2016 at 6:40 p.m. Weaver did not answer. When he was shown a still image from the liquor store's surveillance video, Weaver admitted visiting the liquor store on December 17. Weaver acknowledged four other Poccet Hood gang members were in the liquor store as well. Weaver said he left without buying anything. He then drove to a second liquor store with his brother in Weaver's white Buick Regal, which Weaver volunteered had “no tint.” Weaver denied any knowledge of Raya's killing.5
The same day Detectives Woodruff and Shonka interviewed Posey. Posey admitted he had been a member of Poccet Hood, but he claimed he had “been out for years.” Posey admitted knowing Booker, Lewis, Weaver, and Stone. Posey initially denied involvement with Raya's murder. But when he was shown a still image from the liquor store's surveillance video, Posey stated, “That's me,” and he admitted visiting the liquor store on December 17 to buy alcohol. Posey had gone to the liquor store with Stone in Stone's car, which Posey believed was a black Infiniti. Posey stated, “I ain't got shit to do with anything. That's what's so fucked up.” According to Posey, after he and Stone left the liquor store, they headed home. Detective Shonka interjected, “But what changed it? Something changed it, right?” Posey responded, “Me not being behind the driving wheel, that's what changed.” Detective Shonka asked, “[Stone] did what? What did he do?” Posey replied, “He didn't go home ․”
Posey then made a phone call to his girlfriend from the interview room. After speaking with her, Posey explained to the detectives he and Stone left the liquor store together “in the black car” and “turned down 130th.” They drove behind Weaver, who drove alone in his white car. Booker and Lewis were in front of Weaver in Booker's white car, which Posey thought was a Grand Am. Lewis was driving, and Booker was in the front passenger seat. Posey heard multiple gunshots and saw a flash coming from the passenger side of Booker's car. Posey explained, “[I]t [was] just out of nowhere ․” After the shooting, Booker and Lewis “pulled off” and drove south. Weaver reversed and drove off. Stone and Posey also backed up, then made a U-turn and headed home. Posey denied the shooting was discussed or planned in advance. On the night of the shooting, Posey did not see a gun or know that anyone had a gun. Posey denied speaking with Booker, Lewis, Stone, or Weaver about what happened. At some point, Booker called Posey and said, “I want to talk to you,” but the two never discussed the shooting.
On February 17, 2017 Booker called an unidentified woman from jail in a recorded call. Booker told her he had been charged with murder. He added, “I think I'm going to get out. Even if I gotta take 15 to 20.” Booker mentioned that Posey, Stone, and Weaver were also in jail. The woman asked, “So, you was with them, supposedly, in December?” Booker responded, “[I]t's a whole bunch of ․ bullshit. And then they—they talking about looking for somebody I don't know.”
Stone was arrested on March 1, 2017. When he was arrested, a black Lexus sedan was in the driveway, photographs of which were introduced into evidence. In his recorded interview with Detective Woodruff, Stone admitted he knew Booker, Lewis, Weaver, and Posey. On the evening of the shooting, Stone had driven Posey to the liquor store in Stone's black Lexus “to get some blunts.” When the two arrived at the liquor store, Weaver, Booker, and Lewis were already inside. Stone and Posey left the liquor store without purchasing anything, and they returned to a party for the great-grandmother of Posey's child. Stone identified Booker and Lewis entering the liquor store in a still image from the liquor store's surveillance video. Stone denied being a member of Poccet Hood or any other street gang. He also denied knowing about the murder of Raya and stated, “I didn't see anybody get shot.” But Stone admitted he heard “a gun pop” after returning to the party.
Lewis was arrested in Las Vegas on March 23, 2017 for a parole violation. In his recorded interview with Detectives Woodruff and Shonka, Lewis admitted he knew Booker, Weaver, Stone, and Posey, and each of the four were members of Poccet Hood. Lewis initially denied he was a member of Poccet Hood, but he admitted it when the detectives pointed out his tattoo, which read “Poccet Hood.” Lewis said he was in Compton in “the beginning of December” to meet with his parole officer, but he returned to Las Vegas by the day of the shooting. When he was shown a still image from the liquor store surveillance footage, Lewis denied he was pictured or present in the liquor store on December 17, 2016. Lewis also denied speaking to Booker, Weaver, Stone, or Posey on that day.
d. Posey's proffer interview
On January 18, 2018 Deputy District Attorney Brian Kang and Detective Woodruff interviewed Posey.6 Posey admitted he was a member of Poccet Hood with the monikers “Tiny Dog” and “Peanut.” According to Posey, Largo is one of the main rivals of Poccet Hood. Posey knew Booker, Weaver, Lewis, and Stone for many years. About 5:00 on the night of the shooting, Posey was at his grandmother's house with his family celebrating his grandmother's birthday when Stone stopped by in his black Lexus. Posey got into Stone's car to go to the liquor store to get alcohol. On their way Weaver pulled up by himself in his white car.7 Weaver followed Stone's car, and then Booker and Lewis pulled up in a white car, which Booker was driving. Posey and Stone told Booker and Lewis they were heading to the liquor store. The three cars then went together to the liquor store. Stone, Weaver, and Booker parked their vehicles near the liquor store. Posey did not see Raya and Lott park or enter the store.
The liquor store was located on the border of Poccet Hood and Largo territory. Posey entered the store after the other four men. When Posey entered the store, he went down an aisle toward the back of the store while Booker, Weaver, and Lewis went toward the cash register where “the guy banged on them or whatever.” Posey heard “one of those guys” say, “Where you from?” Posey did not hear Booker, Lewis, Weaver, or Stone say anything. According to Posey, no one said “Fruit Town.” Posey tried to avoid the “commotion” by going to the back of the store.
Weaver exited the store, and Posey and Stone followed without purchasing anything. Posey and Stone got in Stone's car; Weaver into his car; and Booker and Lewis into Booker's car, with Booker in the driver's seat. Stone and Posey sat “for a second” in the car and waited for Weaver to pull out. Detective Woodruff asked, “Were ․ you and [Stone] planning on following Weaver and Lewis and Booker somewhere?” Posey responded, “Not really. I wasn't driving, so I didn't have full control of the steering wheel, so, no.” Weaver pulled out, and Stone followed. They turned on 130th Street, where Booker had pulled his car over. Weaver pulled over, as did Stone. No one spoke. Lewis and Booker switched seats, with Lewis now in the driver's seat. Lewis also took off his gray sweatshirt and gave it to Booker, who put it on. According to Posey, a gang member would switch clothing with another “[t]o cover [his] self.” While this was happening, a white car, like a Pontiac Grand Am, passed by the three pulled-over cars. Posey did not see the occupants of the passing vehicle.
After the white car passed, all three cars followed it down 130th Street, first Lewis, then Weaver, then Stone. At the intersection of 130th Street and Wilmington Avenue, Booker stuck his arm out of the window and “started shooting ․ into the white car.” Posey heard five to seven shots. Weaver and Stone drove in reverse, and Lewis and Booker turned left and drove south. Stone dropped Posey off at Posey's grandmother's house and left.
Booker later called Posey and said, “You know, we need to talk.” Posey responded, “Shit. For what?” Booker called Posey “a couple times” after that, but they did not speak again. Posey later spoke with Lewis, but only about music. Posey spoke with Weaver often, but the two only discussed the shooting once, when Posey asked about it and Weaver responded, “I don't know, bro.”
Detective Woodruff asked, “Do you know where the gun went?” Posey responded, “No, I don't. I didn't have—never had nothing to do with the gun, never none of it ․” Detective Woodruff inquired, “Have you ever seen that where someone's gonna go do a mission, and there's ․ a primary vehicle and a following vehicle and maybe another follow vehicle?” Posey responded, “[N]ot really. I mean, if you gonna shoot someone, you really want to be by yourself.” Posey added, “That's just nothing but a lot of people watching you.”
e. Telephone calls
Between 6:00 and 7:10 on the evening of the shooting, five calls were made between Weaver and Posey; Weaver and Lewis; Booker and Weaver; Booker and Stone; and Stone and Lewis. Booker called Lewis at 6:49 and 6:51 p.m., and Lewis called Booker at 6:58 p.m. Posey sent a text message to Booker at 7:58 p.m. At 8:03 p.m. Booker called Posey.
f. Trial testimony of Weaver, Stone, and Posey
Although Weaver initially invoked his Fifth Amendment right against self-incrimination, he testified after the prosecution offered him use immunity. However, he responded to all the prosecutor's questions with “I don't know,” “I don't remember,” or “I plead the 5th.”
Stone also testified after he was offered use immunity. Stone denied membership in or knowledge of the Poccet Hood street gang. When the prosecutor asked Stone about the liquor store incident, Stone repeatedly responded, “I can't recall, sir.” The prosecutor played a music video purporting to show Stone, Booker, and Lewis singing lyrics including, “I'm out the Poccet,” “Bitch I'm out thuggin’, I be riding on the suckas,” “It's killing season, O bitch,” and “If the situation funny, best believe that I'm a bust.”8 Stone denied he was in the video.
In his testimony, Posey denied being a member of Poccet Hood or any other gang. But he admitted Poccet Hood was a “Compton Crip gang” and he had “Crip” tattooed on his back and a “P” and an “H” tattooed on each hand, the initials for Poccet Hood. Posey answered “I don't remember” to every question the prosecutor asked regarding the night of December 17, 2016; his relationship to Booker, Lewis, Weaver, and Stone; and his subsequent arrest and interviews. Posey denied killing Raya.
g. Gang evidence
Sergeant John Ganarial worked in the LASD gang unit on and off during the period from 2000 to 2013, and he was familiar with the Poccet Hood gang. Sergeant Ganarial had personal contact with Booker and was familiar with Lewis, Weaver, and Posey. He opined the four were documented members of the Poccet Hood gang. As to Stone, Sergeant Ganarial described his family as “very influential” within the Poccet Hood gang. Los Angeles Police Officer Oscar Medina testified he initiated a traffic stop on September 28, 2016 on a white Buick that Weaver was driving. Weaver told Officer Medina he was from Poccet Hood and went by the moniker “Ill Will.” Weaver had the word “Illest” tattooed on his back and “P” and “H” tattooed on his hands.
LASD Deputy Orlando Saldana, a gang investigator for the Compton sheriff's station, was familiar with the Poccet Hood street gang. The Largo 36 street gang is a rival of Poccet Hood, but Largo 36 did not have a feud with the Fruit Town gang. The liquor store sits on the border of Poccet Hood and Largo territory. Deputy Saldana opined Booker, Lewis, Weaver, and Posey were Poccet Hood gang members, relying in part on photographs of gang symbols tattooed on each of the men and photographs depicting Booker, Lewis, and Weaver together flashing Poccet Hood gang signs. In response to a hypothetical based on the facts of the case, Deputy Saldana opined the shooting was committed for the benefit of or in association with the Poccet Hood Compton Crips street gang. Deputy Saldana reasoned that under the hypothetical, the gang members worked in association with one another to “get a better, more clear shot” by pulling up next to the victims’ vehicle.
2. Lewis's case 9
Lewis testified he never lived in Poccet Hood territory but began associating with the gang during high school. Lewis admitted he was a member of the gang and the liquor store was “in the hood.” On the day of the shooting, Lewis traveled to California from Las Vegas, where he was living, to see his parole officer. Earlier in the evening he “was hanging out” with Booker, Weaver, Stone, and Posey. The five men went to the liquor store, but Lewis drove his own car, a burgundy Impala. Booker, Stone, and Weaver drove their own cars and followed each other to the store. Lewis parked on the street. The men did not “hang out” outside the liquor store before they entered the store. Lewis did not remember hearing anyone in the liquor store say “[w]here you from.”
When Lewis left, he did not talk to his friends, and he drove by himself to the house of the father of his sister's child. Lewis did not hear any gunshots. But he admitted speaking separately with Booker, Weaver, and Stone by phone “within minutes” after the shooting. Lewis returned to Las Vegas after staying two days in California.
3. The People's rebuttal
Phone records showed Lewis arrived in the Los Angeles area on the evening of December 16, 2016, and he returned to Las Vegas on December 18. The records also showed Lewis's phone was in the general area of the shooting at 6:43 p.m. on December 17.
C. The Verdict and Sentencing
The jury found Booker and Lewis guilty on count 1 of first degree murder; on count 2 of attempted willful, deliberate, and premeditated murder; and on count 3 of shooting at an occupied vehicle. The jury also found true all the special allegations. After a bifurcated trial, the trial court found true the prior conviction allegations against Booker and Lewis.
The court sentenced Booker and Lewis to aggregate terms of 170 years to life in state prison. As to count 1, the trial court imposed sentences of 25 years to life, tripled to 75 years to life under the three strikes law (§ 667, subd. (e)(2)(A)(i)). The court imposed consecutive sentences of 25 years to life on count 2 under the three strikes law (§ 667, subd. (e)(2)(A)(ii)). The court imposed on counts 1 and 2 additional terms of 25 years to life for the firearm enhancement (§§ 12022.53, subd. (d) [Booker], 12022.53, subds. (d) & (e)(1) [Lewis]) and 10 years under section 667, subd. (a)(1) (two 5-year terms). The court imposed and stayed sentences of 60 years to life on count 3 pursuant to section 654.10
Booker and Lewis timely appealed.
A. The Trial Court Erred in Instructing on the Kill Zone Theory of Concurrent Intent To Kill
1. Jury instructions and closing argument
The trial court instructed the jury with CALJIC No. 8.66, “In order to prove attempted murder, each of the following elements must be proved: [¶] 1. A direct but ineffectual act was done by one person towards killing another human being; and [¶] 2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.” The court further instructed the jury with a modified version of CALJIC No. 8.66.1, “A person who primarily intends to kill one person or persons known as the primary target may at the same time attempt to kill all persons in the immediate vicinity of the primary target. The perpetrator specifically intending to kill the primary target by lethal means may also attempt to kill everyone in the immediate vicinity of the primary target. If the perpetrator has this specific intent and employs the means sufficient to kill the primary target and all others in the immediate vicinity of the primary target, the perpetrator is guilty of the crime of attempted murder of the other persons in the immediate vicinity. [¶] Whether a perpetrator actually intended to kill the victim either as a primary target or as someone within the immediate vicinity is an issue to be decided by you.”
During his closing argument the prosecutor explained the kill zone theory: “They're guilty of attempted murder if they intended to kill Reann Lott. But they're also guilty of it if they intended to kill—not necessarily car[ing] about who it was exactly. But if they tried to kill everyone in the immediate vicinity of the primary target. Does everyone understand that? That the intent to kill—there was intent to kill the person. But there's also an intent to kill if that person is intending to kill all the people in that immediate vicinity based on what you see, based on the number of the shooting and the bullets and the way it was conducted.”
2. The kill zone theory of concurrent intent to kill
“To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ ” (Canizales, supra, 7 Cal.5th at p. 602, 248 Cal.Rptr.3d 370, 442 P.3d 686; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 890, 207 Cal.Rptr.3d 228, 378 P.3d 615; People v. Perez (2010) 50 Cal.4th 222, 224, 112 Cal.Rptr.3d 310, 234 P.3d 557 [“[S]hooting at a person or persons and thereby endangering their lives does not itself establish the requisite intent for the crime of attempted murder.”].) “[A]n intent to kill cannot be ‘transferred’ from one attempted murder victim to another under the transferred intent doctrine.” (Canizales, at p. 602, 248 Cal.Rptr.3d 370, 442 P.3d 686; accord, People v. Bland (2002) 28 Cal.4th 313, 327-328, 121 Cal.Rptr.2d 546, 48 P.3d 1107 (Bland).)
In Bland, supra, 28 Cal.4th at pages 329-330, 121 Cal.Rptr.2d 546, 48 P.3d 1107, the Supreme Court first articulated the kill zone theory of attempted murder, explaining, “ ‘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 victim's vicinity․ 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.’ ” As examples of appropriate applications of the kill zone theory, the Bland court described a defendant placing a bomb on a commercial plane intending to harm a primary target on the plane by killing all the passengers and an assailant attacking a group of people by using “ ‘automatic weapon fire or an explosive device devastating enough to kill everyone in the group.’ ” (Id. at p. 330, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) The court described these scenarios as those where “ ‘[t]he 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.) The Bland court concluded that where the defendant and a second shooter fired a “flurry of bullets at the fleeing car” in order to kill the driver, injuring two passengers, the evidence “virtually compels” an inference the defendant created a kill zone that would support attempted murder convictions as to both passengers. (Id. at pp. 330-331, 333, 121 Cal.Rptr.2d 546, 48 P.3d 1107.)
The Supreme Court in People v. Perez, supra, 50 Cal.4th at page 232, 112 Cal.Rptr.3d 310, 234 P.3d 557 again considered the kill zone theory and found the defendant had not created a kill zone by firing a single shot from a moving car at a group of eight individuals 60 feet away, therefore supporting only one, not eight, counts of attempted murder. The Perez court explained, “ ‘[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 the means of accomplishing the killing of that victim.’ ” (Ibid.; see People v. Stone (2009) 46 Cal.4th 131, 135, 92 Cal.Rptr.3d 362, 205 P.3d 272 [trial court erred by instructing on kill zone theory where defendant shot a single bullet at alleged victim standing in group of 10 rival gang members 60 feet away from defendant].)
The Supreme Court revisited the kill zone theory in Canizales, supra, 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686, in which it narrowed application of the doctrine. (In re Rayford (2020) 50 Cal.App.5th 754, 769, 264 Cal.Rptr.3d 401 (Rayford).) The Supreme Court held, “[T]he kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm. [¶] In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target. Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory.” (Canizales, supra, 7 Cal.5th at p. 607, 248 Cal.Rptr.3d 370, 442 P.3d 686.)
In so holding, the Supreme Court in Canizales cautioned, “[W]e anticipate there will be relatively few cases in which the theory will be applicable and an instruction appropriate. Trial courts should tread carefully when the prosecution proposes to rely on such a theory, and should provide an instruction to the jury only in those cases where the court concludes there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm. The use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction.” (Canizales, supra, 7 Cal.5th at p. 608, 248 Cal.Rptr.3d 370, 442 P.3d 686.)
As we explained in Rayford, supra, 50 Cal.App.5th at pages 769 to 770, 264 Cal.Rptr.3d 401, “Although the defendants in Canizales fired five shots from a semiautomatic nine-millimeter gun at a group that included a rival gang member (Denzell Pride) with whom one of the defendants had engaged in a verbal altercation earlier that day, the defendants were not ‘in close proximity to the area surrounding their intended target,’ but instead were positioned 100 to 160 feet away from a block party on a wide city street, and the bullets were ‘ “going everywhere” ’ as Pride and fellow gang member Travion Bolden ran away after the first shot was fired. (Canizales, supra, 7 Cal.5th at pp. 610-611 [248 Cal.Rptr.3d 370, 442 P.3d 686].) The Canizales court concluded the evidence was not sufficient to allow the jury to find the defendants intended to create a zone of fatal harm around Pride, and it reversed the defendants’ convictions of the attempted murder of Bolden. (Id. at pp. 611, 615 [248 Cal.Rptr.3d 370, 442 P.3d 686].) The Supreme Court distinguished these facts from those in other cases in which ‘the defendants opened fire while in close proximity to the area surrounding their intended target.’ (Id. at pp. 610-611 [248 Cal.Rptr.3d 370, 442 P.3d 686]; see Bland, supra, 28 Cal.4th at p. 318 [121 Cal.Rptr.2d 546, 48 P.3d 1107] [defendant fired flurry of bullets directly into vehicle]; People v. Vang (2001) 87 Cal.App.4th 554, 564 [104 Cal.Rptr.2d 704] [defendants sprayed 50 or more bullets from high-powered, ‘wall-piercing’ weapons at two separate apartment buildings]; Washington v. U.S. (D.C. 2015) 111 A.3d 16, 24 [defendant fired 10 shots at four people standing in close proximity to each other and 21 feet from defendant, hitting three of the group].)”
3. Under Canizales, the evidence at trial was not sufficient to instruct the jury on the kill zone theory
Booker and Lewis contend under Canizales the circumstances of the shooting did not support the trial court instructing the jury on the kill zone theory.11 Rather, they assert the only reasonable inference supported by the evidence is that “the gunman was close to Raya and killed him by firing directly into him from point blank range.” Thus, there was not sufficient evidence defendants intended to kill Raya by killing everyone in the zone of fatal harm around Raya, including Lott. We agree.
The People argue the circumstances of the shooting here support a reasonable inference Booker intended to kill everyone in the zone of fatal harm around Raya “in the confined location of [the] car's cabin” because, unlike in Canizales, Lewis and Booker pulled their car alongside Lott's car in close proximity to Raya and Lott, and Lott was seated next to Raya in the “direct line of fire of the shots.” Thus, under Canizales two of the circumstances to support the kill zone theory are present here—the distance between the defendant and the alleged victim and the proximity of the alleged victim to the primary target. (Canizales, supra, 7 Cal.5th at pp. 597, 607, 248 Cal.Rptr.3d 370, 442 P.3d 686.)
However, as the Canizales court explained, “[T]he kill zone theory does not apply where ‘the defendant merely subjected persons near the primary target to lethal risk. Rather, in a kill zone case, the defendant has a primary target and reasons [that] he cannot miss that intended target if he kills everyone in the area in which the target is located. In the absence of such evidence, the kill zone instruction should not be given.’ ” (Canizales, supra, 7 Cal.5th at p. 607, 248 Cal.Rptr.3d 370, 442 P.3d 686, quoting People v. Medina (2019) 33 Cal.App.5th 146, 156, 244 Cal.Rptr.3d 714.) Here, the type and extent of force used do not support a reasonable inference Booker and Lewis intended to kill Raya by killing everyone in the car's cabin. At most, the evidence supports a reasonable inference Booker and Lewis acted with conscious disregard of the risk Lott might be seriously injured or killed. In contrast to Bland, supra, 28 Cal.4th at pages 330-331, 121 Cal.Rptr.2d 546, 48 P.3d 1107, in which two shooters fired a “flurry of bullets at the fleeing car,” Booker as sole shooter fired a total of three to seven shots 12 directed at the front driver's side of Lott's stationary car. Further, Booker's shots were directed at Raya at close range, striking him twice in his head and once in his arm in a manner consistent with Raya defensively raising his left arm during the shooting. The driver's side front window of Lott's car was shattered, but there were no bullet holes in the car's body or doors that would have reflected a spray of bullets. Nor was there evidence any bullets reached the front passenger side of the car where Lott was sitting, and Lott was not injured. Although the determination whether to instruct on the kill zone “does not turn on the effectiveness or ineffectiveness of the defendant's chosen method of attack,” whether an inference can reasonably be drawn “is at least informed by evidence” Lott (like Bolden in Canizales) was not hit by any of the bullets. (Canizales, supra, 7 Cal.5th at p. 611, 248 Cal.Rptr.3d 370, 442 P.3d 686.) And finally, there was no evidence suggesting Booker used a rapid-firing semiautomatic or automatic weapon.
By contrast, in the only published case since Canizales to find the evidence supported a kill zone instruction, People v. Cerda (2020) 45 Cal.App.5th 1, 16-17, 258 Cal.Rptr.3d 409, review granted May 13, 2020, S260915, the shooter used an assault rifle to fire “up to four times the velocity of handgun ammunition” into two houses, firing at least 16 shots at one house and multiple shots at a second house. (See People v. Vang, supra, 87 Cal.App.4th at pp. 558, 564, 104 Cal.Rptr.2d 704; cf. People v. Cardenas (2020) 53 Cal.App.5th 102, 114-115, 266 Cal.Rptr.3d 788 [insufficient evidence supported kill zone instruction where first two bullets were fired at primary target with alleged attempted murder victim standing one car's length behind primary target, and second round of bullets were fired as shooters retreated]; Rayford, supra, 50 Cal.App.5th at pp. 779-781, 264 Cal.Rptr.3d 401 [trial court prejudicially erred in giving kill zone instruction where three shooters fired a total of eight bullets across the front of the house, injuring two of 11 people gathered inside or in front of the house]; People v. Thompkins (2020) 50 Cal.App.5th 365, 377-379, 394-396, 264 Cal.Rptr.3d 186 [trial court prejudicially erred in giving kill zone instruction where shooter fired 10 shots into crowd of 10 to 20 customers in a restaurant, killing two and wounding five people, with no evidence of an intended target]; People v. Mariscal (2020) 47 Cal.App.5th 129, 139, 260 Cal.Rptr.3d 571 (Mariscal) [trial court erred in giving kill zone instruction where defendant shot at four of the primary target's friends after killing the primary target, but the error was harmless beyond a reasonable doubt].) Under the circumstances here, the trial court erred in instructing the jury on the kill zone theory.
4. The error was prejudicial
“When an erroneous instruction is given, the standard of review turns on whether the instruction was merely factually unsupported or instead legally erroneous.” (Mariscal, supra, 47 Cal.App.5th at p. 139, 260 Cal.Rptr.3d 571; accord, Canizales, supra, 7 Cal.5th at pp. 612-613, 248 Cal.Rptr.3d 370, 442 P.3d 686.) When the trial court instructs the jury on both a factually unsupported theory and a factually supported one, we review the error under People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 (Watson), and the error is harmless if it is not reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (Canizales, at pp. 612-613, 248 Cal.Rptr.3d 370, 442 P.3d 686; accord, Mariscal, at p. 139, 260 Cal.Rptr.3d 571.) However, when the trial court instructs the jury on two legal theories, one of which is legally erroneous, we evaluate whether the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (Chapman). (People v. Aledamat (2019) 8 Cal.5th 1, 13, 251 Cal.Rptr.3d 371, 447 P.3d 277; Rayford, supra, 50 Cal.App.5th at pp. 783-784, 264 Cal.Rptr.3d 401 [applying Chapman harmless error standard to find error in instructing on kill zone was prejudicial].)
The People contend even if the evidence was not sufficient to support the trial court's instruction on the kill zone theory, under Watson it is not reasonably probable that absent the error the jury would have reached a result more favorable to Booker and Lewis because the kill zone instruction was not misleading and there was “overwhelming” evidence of defendants’ intent to kill Lott. Booker and Lewis argue the trial court instructed the jury on a legally erroneous theory of the kill zone, and we must therefore consider whether the error in instructing the jury was harmless beyond a reasonable doubt under Chapman. We need not resolve the applicable standard, however, because even under the less stringent Watson standard the error was not harmless.
The Watson test “focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (People v. Breverman (1998) 19 Cal.4th 142, 177, 77 Cal.Rptr.2d 870, 960 P.2d 1094; accord, People v. Beltran (2013) 56 Cal.4th 935, 956, 157 Cal.Rptr.3d 503, 301 P.3d 1120.)
In Mariscal, supra, 47 Cal.App.5th at page 133, 260 Cal.Rptr.3d 571, testimony at trial established the defendant approached a group of five men seated on bleachers at a baseball diamond and asked where they were from. When one of the men responded they were not gang members, the defendant announced his own gang affiliation and shot the man multiple times. The defendant then aimed at the four remaining men and fired on them as they tried to escape, hitting one man in the chest and another in the legs. (Ibid.) Two of the men died, and the defendant was convicted of two counts of murder and three counts of attempted murder. (Id. at pp. 131, 133, 260 Cal.Rptr.3d 571.) The Court of Appeal concluded the trial court erred in instructing the jury on the kill zone theory where there was insufficient evidence the defendant had a primary target among the five men, but the error was harmless because “the undisputed evidence is that defendant intended to kill all five young men.” (Id. at pp. 139-140, 260 Cal.Rptr.3d 571.) The court reasoned, “The evidence is overwhelming that there was no primary target and that, instead, defendant intended to kill all of the men on the bleachers, or as many as he could.” (Id. at p. 140, 260 Cal.Rptr.3d 571.)
Here, unlike in Mariscal, evidence Booker and Lewis intended to kill Lott was not “overwhelming.” (Mariscal, supra, 47 Cal.App.5th at p. 140, 260 Cal.Rptr.3d 571.) It is possible the jury convicted Booker and Lewis of attempted murder based on direct evidence of their intent to kill Lott, which would be legally permissible. But it is likely the jury relied on the erroneous kill zone instruction in finding defendants intended to kill Lott because she was within a zone of fatal harm. The evidence Booker and Lewis intended to kill Raya was strong—they saw Raya in the liquor store socializing with a rival gang member who had asked Booker, Lewis, and Weaver where they were from. But there was little if any evidence they intended to kill Lott, who was not near Raya and his friend when the friend asked the men where they were from. Further, the five men left the liquor store before Raya and Lott left the store together. Posey did not see Lott when she entered the liquor store or when Raya and Lott drove past the men in their cars while the men were pulled over on 130th Street. Lott ducked during the shooting, and there was no evidence Booker or Lewis saw her in the car. In light of the entire record, Booker and Lewis have met their burden to show it is reasonably probable they would have achieved a more favorable result had the trial court not instructed on the kill zone theory. (Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.) Accordingly, we reverse Booker's and Lewis's convictions of the attempted murder of Lott 13 and remand for further proceedings consistent with this opinion.14
B.-H.** [NOT CERTIFIED FOR PUBLICATION]
We reverse Booker's and Lewis's convictions of attempted murder and remand for further proceedings consistent with this opinion. In all other respects, the convictions are affirmed.
Appellant's petition for review by the Supreme Court was denied February 24, 2021, S266545.
1. All undesignated statutory references are to the Penal Code.
2. Lott identified the five men after viewing surveillance video footage taken inside the liquor store.
3. LASD Sergeant John Ganarial reviewed still images taken from the liquor store interior surveillance video and identified Booker and Lewis. Deputy Orlando Saldana reviewed the same surveillance video and identified Booker, Lewis, Posey, Stone, and Weaver.
4. The Poccet Hood Compton Crips street gang is also known as “Corner Poccet” or simply “Poccet Hood.” For the sake of brevity, we generally refer to the gang as “Poccet Hood.”
5. Audio recordings of the interviews of Weaver and Lewis and video recordings of the interviews of Posey and Stone were admitted into evidence and played for the jury.
6. At the outset of the interview, Kang presented Posey with a proffer agreement, which Posey signed.
7. Posey described Weaver's car as a white “Oldsmobile Cutlass” or “Century.”
8. The music video and a transcript of the video's lyrics were admitted into evidence.
10. The trial court imposed and stayed the additional firearm enhancements charged as to Booker and Lewis. The court appears to have also imposed a 15-year minimum parole eligibility date for the gang enhancement under section 186.22, subdivision (b)(5), while noting the enhancement would have no effect on the sentence. However, the abstracts of judgment do not reflect imposition of the gang enhancement.
11. The People contend Booker and Lewis forfeited their claim of error because they failed in the trial court to object or request an alternative instruction. But we review any claim of instructional error that affects a defendant's substantial rights whether or not trial counsel objected. (§ 1259 [“The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the [trial] court, if the substantial rights of the defendant were affected thereby.”]; People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012, 44 Cal.Rptr.3d 632, 136 P.3d 168 [failure to object to instruction does not forfeit issue on appeal when alleged error concerns elements of offense]; People v. Gutierrez (2018) 20 Cal.App.5th 847, 856, fn. 8, 229 Cal.Rptr.3d 531 [“[W]hen an instruction allegedly affects the substantial rights of the defendant, it is reviewable even in the absence of an objection.”].)
12. Although Lott testified she heard around five gunshots and Posey testified he heard between five and seven gunshots, the People presented physical evidence of only three bullets, those which struck Raya.
13. Because we conclude the trial court prejudicially erred in instructing the jury on the kill zone theory of concurrent intent, we do not reach Booker's and Lewis's arguments their trial counsel's failures to object to the instruction constituted ineffective assistance of counsel or Lewis's argument he cannot be liable under the kill zone theory as an aider and abettor.
14. Booker and Lewis do not contend retrial is barred because the evidence was insufficient to support their convictions of the attempted murder of Lott on a theory other than the kill zone. (See People v. Story (2009) 45 Cal.4th 1282, 1295, 91 Cal.Rptr.3d 709, 204 P.3d 306 [“ ‘[A]n appellate ruling of legal insufficiency is functionally equivalent to an acquittal and precludes a retrial.’ ”].)
Perluss, P. J., and Segal, J., concurred.