Opinion
H031694.
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. ALEX BARAJAS, Defendant and Appellant.
Not to be Published in Official Reports
Defendant Alex Barajas appeals from a judgment of conviction entered after a jury found him guilty of two counts of attempted murder (Pen. Code, §§ 187, 664, subd. (a)). The jury also found true the allegations as to both counts that defendant attempted the murder with premeditation (Pen. Code, §§ 187, 189, 664), personally used a firearm resulting in great bodily injury (Pen. Code, §§ 12022.7, 12022.53, subd. (d)), and committed the crimes for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)). The trial court imposed a sentence of 80 years to life. On appeal, defendant contends: (1) the trial court erred in admitting evidence of his past acts of violence; (2) the conviction for count one must be reversed, because the trial court erred in instructing the jury with CALCRIM No. 600; and (3) trial counsel rendered ineffective assistance of counsel. For the reasons stated below, we affirm.
I. Statement of Facts
A. Prosecution Case
1. The Shootings
At approximately 8:10 p.m. on October 25, 2005, 16-year-old Kristine R. was standing on the sidewalk in front of her house when defendant drove by in a gray Buick. She knew defendant, because he and his brothers, Christopher and Marcos, had previously lived across the street. According to Kristine, defendants complexion was lighter and he was a lot slimmer than his brothers. Shortly after seeing the Buick, Kristine, her cousin Crystal, and a family friend began walking toward the bus stop on the side of the street that was opposite to Arthur Gomezs house. While they were waiting at the bus stop, they heard gunshots and ran to Gomezs house. Both Gomez, who was also known as "Green Eyes," and Joseph A. had been shot. The shooting occurred at approximately 8:30 p.m.
At trial, Kristine testified that she did not see the Buick as they were walking. However, she had previously testified that she saw the Buick at this time. She explained that her previous testimony was based on what Crystal had told her.
Sixteen-year-old Joseph A. was talking to Gomez outside Gomezs house for about 10 minutes when he saw a white Cadillac drive by slowly. About two minutes later, a gray Buick with tinted windows drove by slowly, and parked about four houses away from Gomezs house. Joseph associated this car with people who had previously lived on the street. He did not see anyone exit the car. When the Buick parked, Joseph turned in the other direction and a man in a black hood approached Gomez and said, "[W]hat is up homie," and started shooting. Joseph was shot in the shoulder, and the bullet lodged in his jaw. The shooter ran towards the Buick.
Gomez testified that he is a member of Varrio Norte Life, which is a Norteno gang. Gomezs neighborhood is considered a Norteno area. Gomez "stopped [gang]banging at 17," which meant that he "stopped hanging around, stopped wearing colors." However, he acknowledged that he was "still a Norteno," but he no longer was "actively looking for people to get into fights with" and that he would only fight a Sureno if he was with another Norteno. Gomez previously lived in a Sureno area until he was 17 or 18 years old, which was claimed by East Side Clanton.
Gomez knew that defendant and his brothers were Sureno gang members, who had previously lived about four houses away from Gomezs house. About two or three months before the shootings, defendant drove up in a Mitsubishi Gallant and asked if he could talk to Gomez. Defendant said that "some of his home boys told him [Gomez] was from the hood," which meant that Gomez was previously a Sureno. Gomez left and called his mother, because he was afraid that he would be jumped. On another occasion, Gomez was walking to the liquor store with his girlfriend when defendant "rolled up talking about sur trece," which was a reference to the Sureno gang, and pulled into Gomezs driveway. As a Norteno, Gomez was offended, and he entered his house. About two weeks later, defendant and his family moved out of the neighborhood. About one week after defendant moved, Gomez was shot.
On the night of the shootings, Gomez smoked marijuana. At approximately 8:30 p.m., Gomez was standing outside his house and talking with Joseph when he noticed a white Cadillac. He also saw a gray Buick with tinted windows, but he did not see the driver. The Buick stopped in front of defendants former house. Defendant then approached him, said, "`[W]hats up, homies," and started shooting. Gomez recognized defendant, who shot him in his chest and his wrist. Though defendant wore a hood, Gomez saw his face.
Gomez testified that he was "[p]retty scared" about testifying, because defendants brother had been in the courtroom. Gomez had testified at the preliminary hearing that he heard the voice of the shooter, but did not see him. He explained that he was afraid when he testified, and he did not want to be considered a snitch. Gomez was also afraid that something would happen to his family. Gomez was "positive" about his identification of defendant. Gomez described defendant as "skinny" and as tall as he was, while one of defendants brothers was "short and stocky" and the other was "kind of chunky."
2. Field Identification Contacts
Officer Jose Rodriguez testified that he encountered defendant on March 15, 2005, while Rodriguez was monitoring the funeral of a Sureno gang member who had been shot by a Norteno gang member. Rodriguez filled out a field identification card indicating that defendant had stated that he was a member of East Side Clanton, a street gang that associated with Surenos. Defendant was wearing Anchor Blue clothing, which was very popular with Surenos, and he was accompanied by a fellow gang member. Defendant also had the name "Chuy" tattooed on his arm.
Sergeant Anthony Mata testified that he contacted defendant at a strip mall in a Sureno neighborhood on April 16, 2000. Mata filled out a field identification card indicating that defendant had admitted that he was a Sureno. Defendant was accompanied by his brother Christopher and another individual, and they stated that they were also Surenos.
3. Criminal Street Gang Expert
Officer Joe Campagna testified as an expert witness in Hispanic street gangs. He explained that there are two rival gangs, the Surenos and the Nortenos. Nortenos associate with the color red, the number 14, and the prison gang Nuestra Familia. They also claim the north as their area. The Surenos associate with the color blue, the number 13, and the prison gang Mexican Mafia. They are considered from "Mexico or from out of the area." Varrio Mexicanos Locos or VML and East Side Clanton (ESC) are affiliated with the Surenos. According to Campagna, there is always some type of violent attack when the Nortenos and Surenos meet.
Campagna also testified that the primary activities of Surenos are assault with a deadly weapon, vehicle theft, robbery, and burglary. According to Campagna, Jose Garcia, Edgar Millan, and Felipe Fernandez, who were Sureno gang members, committed crimes that benefited their criminal street gang. The crimes benefited the gang by bringing in money and stolen cars. In Campagnas opinion, defendant was a Sureno gang member based on field identification cards, the statements of one victim, his juvenile record, and the evidence taken from his room and his phone log. The 2005 field identification card showed that defendant was recently active as a gang member. Campagna explained that those who are no longer active will completely disassociate themselves with the gang and would not attend the funeral of a Sureno gang member who had been killed by a Norteno gang member. Campagna also testified that when defendants house was searched on October 26, 2005, officers found several Sureno gang-related photos and three bullets in defendants shirt. The log on defendants cell phone contained several gang monikers and the number of Sur Santos Pride, which is a Sureno criminal street gang. Campagnas opinion was that the shootings in this case were committed for the benefit of a Sureno street gang, because Gomez was a Norteno and there had been previous incidents between defendant and Gomez. The shootings also created fear of Surenos.
Campagna testified that after defendant was arrested, he stated that he was "no longer active" but he hung out with Surenos. Campagna noted that gang members do not admit that they are active when they are in custody. Gang members will also have their tattoos removed in order to get a job or to avoid the legal consequences of gang membership while committing a crime.
The parties stipulated that between 1997 and 2001 defendant was involved in four gang-related offenses. One of the crimes involved two VML members Onorio Flores and Einer Garcia. Another crime involved his brother Christopher and Manuel Mendoza, and yet another crime involved VGL gang member Oscar Hererra. The parties also stipulated that defendants brother Christopher was in custody when the shootings occurred.
B. Defense Case
Defendant testified on his own behalf. He stated that he was 22 years old, and he decided that he no longer wanted to be a Sureno when he was 17. His brother Christopher went to prison, and defendant did not want a similar fate. Defendant also explained that when his cousin died as a result of gang violence, defendant tattooed his nickname "Chuy" on his arm. However, defendant had a gang tattoo removed when he was 19. Defendant entered the Clean Slate Program and attended classes geared toward leaving gang life.
In July 2003, defendant began working at Iron Mountain. In October 2005, defendant was living with his fiancée, Brenda Rodriguez, their two-year-old daughter, and his fiancées family. On the day of the shootings, defendant worked from 4:00 a.m. until 1:00 p.m. He drove home at around 2:00 p.m. After he took a shower, he went to the dentists office at 4:00 p.m., and returned home at about 5:30 p.m. His brother-in-law Manuel Mendoza was fixing the television cable at defendants house. Defendant helped him until 8 or 8:30 p.m. when they went to a restaurant in Mendozas Ford Expedition. They were at the restaurant for 45 minutes, and Mendoza drove defendant home. Defendant was home and asleep by 9:30 p.m. The following day, defendant went to work, and then went to the police department regarding a ticket. Defendant was arrested later that day.
Defendant testified that he drove a white Honda. He had previously owned a gray Buick, but he sold it to his brother Marcos in early September. Defendant denied asking Gomez if he was from the "hood," or saying "sur trece" to him. Defendant also denied shooting Gomez or Joseph. According to defendant, the gang photos found in his room belonged to Rodriguez, and he found the bullets near his mothers house. Defendant explained that he went to Cesar Sanchezs funeral with his friend Clumsy. Defendant described Sanchez as an acquaintance, and he went to the funeral because he was with Clumsy. Defendant only knew Clumsy by his nickname, but he did know that Clumsy was and continues to be a gang member. Defendant denied telling a police officer that he was a gang member on March 15, 2005. Defendant denied shooting anyone or ever discharging a firearm.
On cross-examination, defendant admitted that he was involved in an attack on a student at Monroe Middle School in 1997, and was the stabber in a gang-related incident at Yerba Buena High School in 1999. Defendant also admitted that he was involved with Christopher and Mendoza in a gang-related attack that involved tire irons and bottles in 2000, and that he and Oscar Hererra stabbed a Norteno gang member in the chest in 2001.
In explaining how he knew about the shootings, defendant testified that one of his friends told him about the shootings before the police talked to him. Defendant refused to give the friends name, because he did not want to be a snitch. The friend told him that they shot Green Eyes. Defendant did not know Gomez by name. However, when defendant was talking to the police, he referred to Arthur. Defendant explained that when the detective asked him if he had any problems with anyone in the neighborhood, he referred to Art, who was someone that had problems with his brothers. Defendant also admitted that he had confronted Art, who was not Gomez. When defendant was arrested, the officer told him he was being arrested for "a little ticket or something." The officer also said the witnesses had seen him at the scene of the shooting.
Rodriguez testified that she was defendants girlfriend. When she got home at approximately 10:10 p.m. on October 25, 2005, defendant was sleeping with their daughter. The gang photos belonged to her, not defendant. She kept the photos because they depicted her ex-boyfriend and other friends. Rodriguez told Campagna that Marcos drove an old Cadillac. She did not remember crying when the officers showed her the bullets. She denied telling the officers that the photos belonged to defendant.
Vidal Santellano testified as an expert witness in Hispanic street gangs. Santellano was a youth outreach worker for individuals involved in gangs. According to Santellano, Anchor Blue clothing is not associated with Surenos. Santellano first worked with defendant from 1999 to 2001. Defendant successfully completed the Clean Slate Program, a gang tattoo removal program, in 2003. This program required, among other things, that an individual disassociate himself from the gang before he could have his tattoos removed. Based on defendants completion of the program and his subsequent behavior, Santellano gave his opinion that defendant was no longer a gang member. Santellano was surprised that defendant was involved in a gang-related attack against Nortenos in 2000.
Mendoza testified that defendant was his wifes stepbrother. Mendoza is a former member of Varrio Mexicanos Locos, which is a Sureno gang. He left the gang six years ago. On October 25, 2005, he stopped working at 3:30 p.m. and went to defendants house. When he arrived at 3:45 p.m., defendant helped him install cable in his house. Between 8 and 8:15 p.m., they went to a taqueria, and left after about an hour and a half. He dropped defendant at his house around 9:30 p.m.
Geoffrey Loftus testified as an expert in experimental psychology, specifically as it relates to memory and perception. According to Loftus, an identification can be influenced by the observers expectations, perception, and memory. Smoking marijuana negatively affects ones memory. Other factors that can reduce the accuracy of an identification are inadequate lighting, inadequate opportunity to observe, lack of attention, and stress. When a weapon is used, people tend to focus on the weapon.
Christopher, defendants brother, testified that he was present when his brother Marcos met with defense counsel. According to Christopher, Marcos read some paperwork and stated that he was going to take responsibility for what he had said to Gomez. Marcos asked Gomez if he was from his hood, called Gomez a bitch, and said sur trece. Christopher acknowledged that he and Marcos were heavier than defendant, and that defendant does not look anything like Marcos. Christopher was no longer a Sureno gang member. He also claimed that defendant had never been in a gang. According to Christopher, neither defendant nor Marcos did the shootings.
David S. testified that he saw the shootings on October 25, 2005. After the shootings, the shooter went to an old black Buick. David saw the shooter as he was running to the car, and identified defendant. At the preliminary hearing, David testified that he saw Christopher in the Buick. He also testified that a gold Honda dropped someone off.
Crystal M. testified that Art Ramirez lived on Seventh Street. She did not see the shootings. David is her brother and she lives with Kristine. She saw defendant driving an old, gray car twice. She told Kristine that defendant was driving the car after he drove by the first time.
The parties stipulated that defendants phone records indicate that he received an incoming eight-minute call on October 26, 2005 at 4:59 a.m.
C. Rebuttal
Campagna testified that when he obtained the gang-related photos at defendants home, Rodriguez stated that the photos belonged to defendant. He also showed her the bullets found in defendants shirt, and she began to cry hysterically. Campagna was unable to confirm that defendant and Mendoza went to the restaurant. Defendant made three phone calls to Mendoza on October 25, 2005. The calls were at 3:43 p.m., 3:57 p.m., and 6:01 p.m. According to Campagna, Marcos is much heavier, a little bit shorter, and much stockier than defendant. Both Kristine and Crystal identified defendant as driving the car, and Marcos in the passenger seat. David identified defendant as the shooter and Marcos as driving a gold Honda.
II. Discussion
A. Admissibility of Evidence
Defendant contends that the trial court erred in admitting evidence of defendants past acts of violence. The People argue that defendant failed to object on these grounds, thus forfeiting the contention. We conclude that defense counsel was incompetent for failing to preserve the issue for appeal. However, defense counsels deficient performance did not result in prejudice to defendant.
1. Background
When the prosecutor was examining Campagna, he sought to have a chart marked for identification. Defense counsel asked to approach and a sidebar conference ensued. Citing Evidence Code section 352, defense counsel argued that the chart violated an in limine order because it described defendants prior gang-related offenses. The trial court excused the jury in order to consider the objection.
All further statutory references are to the Evidence Code.
The trial court noted that the prosecutor had stated at the start of trial that he intended to introduce a 1999 stabbing incident, a 2001 assault, and a 1997 assault involving other Sureno gang members. Defense counsel argued that "[t]hose three summaries are highly inflammatory. They are remote in time and not probative sufficiently to outweigh their prejudicial effect." Defense counsel offered to stipulate that defendant had previously been a Sureno gang member.
The trial court stated that "the summaries of those offenses would be extremely inflammatory, and I think its a very close question as to whether or not the details of those particular offenses indicating violent assaults just have it turned right over into the realm of pure character evidence or would do so in the mind of the jury, which is what I have to be concerned about. . . . [¶] . . . I am extremely concerned on the 352 aspect of this because I just dont know how a jury could disregard three prior assaults in the chest, frankly, and not consider that hes done it before, hes likely to do it again in laymans terms." In light of the trial courts comments, the prosecutor agreed to defendants proposed stipulation.
When trial resumed, the parties stipulated that defendant was involved in four separate gang-related criminal offenses from 1997 to 2001. One involved two VML gang members, Onorio Flores and Einer Garcia, another involved Christopher and Mendoza, and another involved a VGL gang member, Oscar Herrera. Campagna then resumed his testimony. In his opinion, defendant was an active Sureno gang member. In forming this opinion, Campagna considered defendants prior bad acts.
At the end of the direct examination of defendant, the following exchange occurred: "Q. Since you left the gang when you were 17 and a half, have you shot anybody? [¶] A. No, I havent. [¶] Q. Did you ever shoot anybody? [¶] A. No, never in my life, never have discharged a firearm." The prosecutor then sought a sidebar conference.
During the sidebar conference, the following occurred: "[THE PROSECUTOR]: I believe the last set of questions, hes opened the door as to his prior violent activities. [¶] [DEFENSE COUNSEL]: I think — have you ever shot anybody. [¶] THE COURT: Its a character question, counsel. Its character for violence, has no other relevance." The trial court then ruled out of the jurys presence: "Although there is no question that counsel has opened the door to the character for violence, that is a limited area. And so I am going to allow you to ask questions related to that. The chart is completely unnecessary for that one. So Im going to be really specific. [¶] Although counsel has opened the door and suggested through his questions that the defendant is a non-violent person, Im not going to let you run rampant with the character evidence. [¶] You are allowed to do the following: You may ask, and if he denies, you may establish that he committed a stabbing in 99, the one in 2000, and physical assault in 97, 99 — I dont remember the dates, what those were — thats it. No gory details. Nothing else. Just the fact of those specific assaults to show the violent character in rebuttal to the character evidence that was introduced."
On cross-examination, defendant was asked if he was involved in an attack on a student at Monroe Middle School in 1997. Defendant replied that he was involved in "a few of them." Defendant also admitted that he was the stabber in a gang-related incident at Yerba Buena High School in 1999, was involved in a gang-related attack involving tire irons and bottles with Christopher and Mendoza in 2000, and stabbed a Norteno gang member in the chest in 2001.
2. Analysis
Section 1101, subdivision (a) states: "[e]xcept as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." However, "evidence of the defendants character or a trait of his character in the form of an opinion or evidence of his reputation" is admissible in criminal cases when it is either "[o]ffered by the defendant to prove his conduct in conformity with such character or trait of character," or "[o]ffered by the prosecution to rebut evidence adduced by the defendant . . . ." (§ 1102.)
Here, defendant testified that he had never discharged a firearm, thus allowing the jury to draw the inference that he had a nonviolent character. When the prosecutor sought to introduce evidence of defendants specific acts to rebut this inference, defense counsel did not object pursuant to section 1102. However, in order to preserve an issue for appellate review, a party must object and state the specific ground on which he or she seeks the exclusion of evidence. (§ 353, subd. (a); People v. Coffman (2004) 34 Cal.4th 1, 113.) Accordingly, defendant has forfeited the issue.
Defendant argues, however, that the trial court was aware of his opposition to the admission of this evidence, and thus he did not forfeit the issue. Though defendant had previously argued that the evidence was inadmissible under section 352, he did not refer to section 1102. Thus, he did not preserve the issue of whether the evidence was inadmissible under section 1102.
Defendant next argues that any objection would have been futile. We disagree. When the trial court referred to defendants character evidence, defense counsel did not attempt to make an objection or state the ground on which he sought exclusion of the evidence. Thus, the record does not reflect that his objection would have been futile.
Defendant also relies on People v. Felix (1999) 70 Cal.App.4th 426 (Felix). In Felix, the defendant was charged with possession of cocaine base, and he presented testimony from two witnesses that he had only used heroin, not cocaine. (Felix, at pp. 428-429.) Before trial, the trial court had denied the prosecutors motion to exclude this testimony under section 1102, and ruled that the defendants prior conviction of possession of heroin and cocaine for sale was admissible. (Felix, at p. 431.) After the defense rested, the trial court considered again whether the prior conviction was admissible. (Felix, at p. 431.) The defendant objected on the grounds that he would not be testifying and thus could not be impeached with his prior conviction, and the evidence "put[] in front of the jury a prior felony conviction." (Felix, at p. 431.) The reviewing court held that the defendant had not forfeited his argument that the admission of his prior conviction did not meet the foundational requirements of section 1102, because the trial court was alerted to "the nature of the evidence, the basis of defendants objection to it, and afforded the prosecution an opportunity to establish the prior convictions admissibility." (Felix, at p. 431.) In contrast to Felix, here, there had been no prior discussion of section 1102 and defendant did not object to the admission of the rebuttal evidence after he had introduced character evidence.
We now consider defendants claim that trial counsel rendered ineffective assistance by asking "[d]id you ever shoot anybody" and by failing to object to the admission of evidence of his specific acts under section 1102.
"In order to demonstrate ineffective assistance, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.)" (People v. Williams (1997) 16 Cal.4th 153, 215 (Williams).)
Even assuming that trial counsel failed to perform as a reasonably competent attorney by asking defendant if he had ever shot anyone and by failing to object under section 1102 to the admission of evidence of specific acts, defendants claim fails because he has not established prejudice. First, the evidence was largely cumulative. The parties had already stipulated that defendant was involved in four gang-related criminal offenses between 1997 and 2001. Second, the case against defendant was extremely strong. Three witnesses saw defendant at the scene shortly before the shootings. Gomez, who saw defendants face from a short distance, identified him as the shooter at a photo lineup and at trial. Moreover, defendants alibi theory was rebutted by evidence that defendant called Mendoza at a time when defendant claimed they were installing cable at his house. Thus, even if the challenged evidence, which identified defendant as the stabber in 1997, referred to the use of tire irons and bottles in 2000, and indicated that defendant stabbed someone in the chest in 2001, had been excluded, it was not reasonably probable that the result of the proceeding would have been different. (Williams, supra, 16 Cal.4th at p. 215.)
B. CALCRIM No. 600
Defendant next contends that the trial court erred in instructing the jury on attempted murder pursuant to CALCRIM No. 600. Defendant argues that this instruction "misstated the law of concurrent intent as stated by the California Supreme Court," permitted the jury to convict him "without finding he specifically intended to kill [Joseph] beyond a reasonable doubt, and it was argumentative."
The trial court instructed the jury as follows: "The defendant is charged in Counts One and Two with attempted murder. [¶] To prove that the defendant is guilty of attempted murder, the People must prove that: [¶] One. The defendant took direct but ineffective steps toward killing another person. [¶ And two. The defendant intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond mere planning or preparation and shows that a person is putting his or her plan into action. [¶] A direct step indicates a definite and unambiguous intent to kill. Its a direct movement toward commission of the crime after preparations are made. Its an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] 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 Joseph A[.], the People must prove that the defendant not only intended to kill Arthur Gomez but also either intended to kill Joseph A[.] or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill Joseph A[.] or intended to kill Arthur Gomez by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Joseph A[.]"
When a criminal defendant contends that a jury instruction is erroneous, this court inquires "`whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." (Estelle v. McGuire (1991) 502 U.S. 62, 72, quoting Boyde v. California (1990) 494 U.S. 370, 380 (Boyde).) In conducting this inquiry, this court considers the challenged instruction in the context of all the instructions given by the trial court. (Boyde, at p. 378.)
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]" (People v. Lee (2003) 31 Cal.4th 613, 623.) Though the doctrine of transferred intent applies to murder, it does not apply to attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 320-321 (Bland).) However, "a person who shoots at a group of people [may still] be punished for the actions towards everyone in the group even if that person primarily targeted only one of them. . . ." (Bland, at p. 329.) A jury may find that a defendant harbored a concurrent intent to kill when a "`kill zone" has been created, that is, "`when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity." (Bland, at p. 329, quoting Ford v. State (1993) 625 A.2d 984, 1000.)
In considering the jury instructions as a whole, we do not find that there was a reasonable likelihood that the jury construed CALCRIM No. 600 as permitting an attempted murder conviction of Joseph without finding that defendant had the specific intent to kill him. The jury was properly instructed that in order to prove defendant guilty of attempted murder of Joseph, the People were required to prove that defendant "took direct but ineffective steps towards killing another person" and defendant "intended to kill that person." Defendant, however, focuses on that portion of CALCRIM No. 600 that states: "If you have a reasonable doubt whether the defendant intended to kill Joseph A[.] or intended to kill Arthur Gomez by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of Joseph A[.]" (Italics added.) In our view, no reasonable juror would have interpreted this language as permitting a conviction of attempted murder if defendant intended only to harm people in the kill zone. As the People correctly point out, the only way that defendant could "kill Arthur Gomez by harming everyone in the zone is if the harm inflicted was fatal harm; nonlethal harm would not result in Arthur Gomezs death. If a person intentionally inflicts lethal harm on everyone in the zone, it reasonably follows that the person necessarily intended to kill everyone in the zone."
We next consider defendants contention that the instruction is erroneous, because the jury was instructed that finding defendant guilty of the attempted murder of Joseph required proof that "defendant not only intended to kill Arthur Gomez but also either intended to kill Joseph A[.] or intended to kill anyone within the kill zone." (Italics added.) Defendant characterizes this portion of the instruction as "a statement of transferred intent which the court in Bland repudiated." He claims that the jury could have concluded that defendant intended to kill anyone, that is, Gomez, but not everyone, that is, Joseph as well.
The case of People v. Campos (2007) 156 Cal.App.4th 1228 (Campos) is instructive on this issue. In Campos, the court considered whether CALCRIM No. 600 expanded the concept of a "kill zone" as set forth in Bland, and improperly allowed the jury to find the defendant guilty of attempted murder "without proof that all members of the group were subjected to the risk of death, and, consequently, without the intent to kill all group members." (Campos, at p. 1241.) The Campos court held that it was not reasonably likely that the jury misapplied or misconstrued CALCRIM No. 600 in such a way that they were misled regarding the requisite specific intent. (Campos, at p. 1243.) In Campos, as in the present case, the trial court properly instructed the jury on the elements of attempted murder, including that the defendant had the specific intent to murder the person whose attempted murder is charged, and on the definition of express malice. (Campos, at p. 1243.) The Campos court also found that CALCRIM No. 600 is not "necessarily inconsistent with Bland." (Campos, at p. 1243.) In Campos, the court pointed out that the jury was directed that "it could not find [defendant] guilty of attempted murder . . . under a `kill zone theory unless it found that he intended to harm `everyone in the zone." (Campos, at p. 1243.) The Campos court explained that "there 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 shooters indifference as to who is his victim." (Campos, at p. 1243.) Given that CALCRIM No. 600 refers to both "everyone" and "anyone" in the kill zone, and requires a finding of specific intent to kill each victim, the jury in the present case could not have reasonably interpreted the instruction as permitting a conviction under the transferred intent theory.
The California Supreme Court denied review in Campos on February 27, 2008. It also denied review in People v. Bragg (2008) 161 Cal.App.4th 1385 on July 9, 2008. In Bragg, the court held that CALCRIM No. 600 was not erroneous. (Id. at pp. 1393-1397.) However, the court granted review in People v. Stone (S162675) on June 25, 2008. One of the issues in that case is whether the trial court erred by instructing the jury on the "kill zone" theory in a case in which the defendant was not shooting at a specific individual as he fired a single shot into a crowd.
Defendant also claims that the kill zone theory did not apply in the present case, because he used a revolver, which was not the type of force "designed to kill everyone in the vicinity." There is no merit to this claim.
The defendants primary target and his or her physical relationship to other potential victims will determine the type of force necessary to create a kill zone. As the Bland court observed, a defendant who places a bomb on an airplane intends to kill not only the targeted victim, but also everyone on the plane. (Bland, supra, 28 Cal.4th at pp. 329-330.) However, less force would be required for application of the kill zone theory when the defendant is near the potential victims. Here, Gomez and Joseph were talking to each other outside Gomezs house when defendant approached and fired at least five times at them. Given the victims proximity to each other and to defendant, the type of force employed by defendant established a concurrent intent to kill not only Gomez, but also Joseph.
Defendant next argues that CALCRIM No. 600 was improperly argumentative. He claims that the term "kill zone" is inflammatory, and that the instruction suggested to the jury that "because multiple victims were harmed in an area, there was a `kill zone designated by [defendant]; therefore, he must have intended to kill every one of the victims."
An instruction that attempts to relate particular facts to legal issues generally is objectionable as argumentative. (People v. Wharton (1991) 53 Cal.3d 522, 570.)
In the present case, as observed by the Campos court, though CALCRIM No. 600 refers to the term "kill zone," "[i]t does not invite inferences favorable to either party and does not integrate facts of this case as an argument to the jury. Other disparaging terms, including `flight (CALJIC No. 2.52), `suppress[ion] of evidence (CALJIC No. 2.06) and `consciousness of guilt (CALJIC No. 2.03) have been used in approved, long-standing CALJIC Instructions." (Campos, supra, 156 Cal.App.4th at p. 1244.) For the same reasons, we also conclude that CALCRIM No. 600 is not argumentative.
Since we have concluded that the jury would not have misapplied CALCRIM No. 600 and the instruction was not argumentative, we need not consider defendants claim that his counsel rendered ineffective assistance by failing to object to the kill zone portion of the instruction.
III. Disposition
The judgment is affirmed.
WE CONCUR:
McAdams, J.
Duffy, J.