Opinion
B296856
03-01-2021
The PEOPLE, Plaintiff and Respondent, v. Tyrone FOSTER, Defendant and Appellant.
Kelly Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I, III, IV, V, and VI of the Discussion.
Kelly Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted defendant Tyrone Foster of one count of first degree premeditated murder, and five counts of premeditated attempted murder. The jury found true allegations that the crimes were gang related and that Foster personally discharged a firearm. The trial court sentenced Foster to a total term of 90 years to life in state prison.
On appeal, Foster raises five issues, contending that: (1) the trial court erred in admitting statements Foster made to an undercover agent while in jail; (2) there was insufficient evidence to support his conviction for five counts of attempted murder; (3) the standard jury instructions failed to adequately describe the requisite intent element for attempted murder; (4) there was insufficient evidence the shooting was gang related; and (5) the admission of a reference to an uncharged burglary was erroneous and prejudicial. Foster further contends the trial court errors accumulated so as to deprive him of his right to a fair trial.
In the published portion of this opinion, we hold that the evidence was sufficient to support all five counts of attempted murder. In the unpublished portion of the opinion, we conclude the evidence was sufficient to support the gang enhancement allegations. We further conclude the jury instructions were adequate as given and that the trial court committed no evidentiary error. Finding no errors to accumulate, we affirm.
FACTS AND PROCEEDINGS BELOW
A. Prosecution Evidence
1. The Shooting
On the afternoon of March 25, 2016, Robert Ellis went to his usual barbershop located at "the Hut," which was in a strip mall at the corner of South Vermont Avenue and 55th Street. The Hut is a known hangout for the Five Deuce Hoovers and Five One Trouble gangs, and members in both gangs were customers of the barber shop. There had been numerous shootings over many years at the location of the shooting. Ellis, however, was not in the gangs, nor was he wearing anything to suggest he was a gang member.
Ellis's barber informed him that he had a few customers ahead of him, so Ellis went outside. There were about 12 people in the parking lot. The shop was busy because it was a holiday weekend. At about 2:14 p.m., a shooter opened fire on the group and Ellis was shot and killed.
The following events were captured by surveillance cameras, and the videos were played at trial. The videos showed the shooter walking up an alley toward the strip mall. The shooter, whose face was partially obscured by a gray hoodie, ran up, crouched behind a car, and then sprang up and fired seven shots from a semiautomatic firearm. The shooter then ran away. One bullet struck and killed Ellis. The rest of the people in the parking lot fled when the shooting began.
Ellis, who had been shot in the chest, died within moments. The bullet that struck Ellis lodged in his body. No other victims were struck by gunfire. Seven expended .45 caliber casings were found on the ground. As of the time of trial, the gun used in the shooting had not been located. 2. Initial Investigation
On April 14, 2016, law enforcement held a press conference to notify the public of a reward being offered for information regarding the shooting. The information disclosed to the media included a general description of the suspect, surveillance video of the shooting, and published still photographs from the video—including one that zoomed in on the shooter's face. The next day, Detective Eric Crosson of the Los Angeles Police Department received tips identifying five or six different people as the suspect. One of the tips led Detective Crosson to locate a Facebook page for someone with the profile name "Dolla Sign Fatal." The account included photographs of Foster. Crosson learned Foster's name by speaking with gang officer Robert Smith, who knew Foster.
Geqjuan Perteet was identified as a "friend" on Foster's account. Perteet's Facebook page included photographs of Foster displaying hand signs and wearing Nike basketball shoes that appeared to be the same shoes worn by the shooter.
Detective Crosson obtained search warrants for two residences associated with Foster, several phone records, and Facebook accounts. In one of the residences, officers found mail with Foster's name on it and a shoebox with gang graffiti on it. The records obtained from Facebook revealed a telephone number for a cell phone that was used to upload photographs to the account. After obtaining the cell phone records and cell tower information associated with the number, officers obtained an arrest warrant for Foster.
3. Foster's Arrest and Statements to an Undercover Agent in Jail
Foster was arrested on May 5, 2016, and was taken to the 77th Street station. Video footage of Foster showed him walking with the same distinctive gait visible in the video of the shooting (with his feet turned out at the 10 and 2 o'clock position).
The police placed Foster in a cell with an undercover agent, as part of a " Perkins operation." The agent was wearing a hidden camera that recorded both video and audio. Video and audio recordings from the body camera were played at trial.
In Illinois v. Perkins (1990) 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (Perkins ), the United States Supreme Court held that a criminal suspect who makes incriminating statements is not entitled to Miranda warnings "when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement." (Id. at p. 294, 110 S.Ct. 2394 ; see Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ; see also People v. Williams (1988) 44 Cal.3d 1127, 1141-1142, 245 Cal.Rptr. 635, 751 P.2d 901 [stating Miranda "has never been applied to conversations between an inmate and an undercover agent"].)
At trial, the prosecutor played for the jury the entire tape of the Perkins conversation, and the jury was provided a transcript as an aid to go along with the tape. Since Foster does not point to any inaccuracies in the transcript, although it was not admitted into evidence, we rely on it for our summary of the Perkins conversation.
When Foster first entered the cell, he asked the agent what he was in for and the agent said he was in custody for a "hot one," meaning a murder. Foster said, "Me too." Foster asked the agent about the status of his case and the nature of the evidence against him. The agent talked about his purported offense and told Foster the police had camera footage of his whole face and body, but did not have footage of the shooting itself. Foster stated that, in his case, the police could not just go off video footage because "if they just got part of me or anything ... that could be anybody." He added that the police did not have "my weapon, no clothing, no witness."
The agent asked Foster what "area" he was from, and Foster answered "from 40's." The agent stated he too was from South Central Los Angeles, and asked Foster if he was "still banging." Foster answered, "Hell yeah." Foster agreed that if he was released, he would "have all the respect in the world."
The agent told Foster that "homies" will cooperate with the police, and asked Foster if the police might be looking for someone else in the offense. Before Foster could answer, the agent asked, "Do you trust him?" Foster responded, "I don't trust nobody ...." When the agent said, "Hopefully they don't catch him .... Just one less thing you got to worry about," Foster replied, "I think that's the only thing I'm worried about."
After additional conversation, Foster said the person they were discussing had been arrested on a robbery and was in jail. He also said the person drove a Nissan. The agent told Foster to get in touch with him. Foster said, "He Hispanic, bro," and the agent said, "Well, you could still get at him though." Foster responded, "I could tell some of your boys, huh?" The agent agreed, and asked for his name. Foster said, "He don't ... bang though, but his name is Duke," or "Carlos Duke."
On April 24, 2016, Foster was in a white Nissan Altima being driven by Carlos Duque Molina when it was stopped by the police. The officer who conducted the stop testified that Duque was Latino.
The agent asked if the police had found anything during a search of Foster's residence. Foster said they took an old pair of shoes. The agent asked, "That's ... not the ones that you had on, right?" Foster responded, "It's close to the color," but they were not the same. The agent asked Foster, "What enemy ... they blaming you for?" Foster said, "some Hoovers." The agent asked if there had been people near the person who was hit. Foster said there had been, but that they were too busy running and ducking to get a good look at him. The agent emphasized the importance of destroying any possible evidence, saying Foster should get someone to "destroy that gun," and Foster said he would call someone. Foster spoke with a guard, who told him that no telephone was available at that time. Foster commented that he was not concerned about fingerprints on the gun because he commonly wore gloves.
The agent asked Foster what kind of gun he used and Foster said, "a chunky little .45." Foster said the police had little to go on because he had not shouted out his gang's name when he committed the shooting.
4. Cell Phone Data
Officers took Foster's cell phone at the time of his arrest. The phone was later searched. The location data for Foster's phone was consistent with him being in "very close proximity of the crime scene" at the time of the shooting. Usage data for the phone indicated it was used heavily both before and after the shooting, but was turned off for the period between 2:17 p.m. and 2:46 p.m., immediately after the shooting at 2:14 p.m. Later that day, Foster warned someone listed in his contacts as "Duke" to be on alert: "Make sure u stay tucked don't cum out for nothing."
Foster's search history reflected that he began investigating news reports of the shooting on March 25 before the lead detectives had even responded to the scene. His web search results between March 25 and March 27 included a search for "Vermont and 55th shooting," and various other crimes including some committed in South Los Angeles and some committed out of state. On April 27th, he searched for "how long can gunpowder last on your clothes."
5. Gang Evidence
Officer Robert Smith testified as a gang expert. He had extensive experience with the Rollin’ 40's gang, and had had numerous encounters with Foster. He had known Foster to be a gang member since at least 2013. The Rollin’ 40's mostly had African American members, but also had a small number of Latino members. It was not a rival of any Latino gang, and lived in "relative harmony" with a neighboring Latino gang.
The primary activities of the Rollin’ 40's included committing burglaries and shootings. Evidence of specific murders and a bank robbery was presented as predicate, gang-related crimes. Foster had been photographed on prior occasions throwing gang signs with other Rollin’ 40's members, including a man who was in custody for attempted murder.
Officer Smith explained that gang members gain status by committing violent crimes, especially against rivals. When asked a hypothetical question based on the facts of the instant shooting, Officer Smith opined that the crime was gang-related. Committing such a shooting would increase the status of the shooter's gang, as well as the shooter's status within the gang. The shooting would also serve the gang's interests by intimidating the public, and strengthening the gang's ability to claim the area and make money in various ways, including demanding "taxes" from businesses located in the gang's territory. Gang members would lose respect for falsely claiming crimes and face "repercussions."
Detective Crosson also testified that the nature of the shooting indicated it was gang-motivated. He explained that committing such a shooting in Five Deuce Hoover territory would be disrespectful of the Hoovers, even if the person actually shot was not himself a member.
Criminal street gangs use graffiti to mark their territory and identify their enemies. At the time of the shooting, there was graffiti across the street from the strip mall. The graffiti claimed Five Deuce Hoover and Five One Troubles control of the area, and asserted a threat against various other gangs, including the Rollin’ 40's. The threat against the Rollin’ 40's was expressed by crossing out the number "40" with the letter "K" next to it. The designation of a "K" next to the crossed-out number meant those enemies would be killed.
B. Defense Case
1. Tyrone Mena
Tyrone Mena testified he had known Foster since the ninth grade, lived with him during high school, and stayed in touch thereafter. Mena had never known Foster to be aggressive or violent. Mena did not know Foster to be a gang member, but knew that Foster hung out with Rollin’ 40's gang members. Mena had a prior conviction for grand theft, which was not gang related.
2. Defendant Foster
Foster testified on his own behalf. He was 22 years old at the time of the shooting. He grew up in the territory claimed by the Five One Troubles gang and knew the area of the shooting was territory claimed by that gang. Foster admitted to the jury he was a member of the Rollin’ 40's. However, he described his participation in the Rollin’ 40's as a means of socializing and publicizing his music by lending him "street credit."
Foster denied being the shooter. He could not remember where he was the day of the shooting, but he commonly visited the general area to visit family and go shopping.
Foster claimed he learned about the shooting through media reports. A Rollin’ 40's member named Jeremiah "Spodey Face" Shaw, who Foster had known since 2012, told Foster he had committed the shooting. Foster did not remember where or when that conversation occurred. Foster did not believe Shaw and decided to learn more about the shooting by searching the internet. Indeed, the shooting was such a popular topic among his fellow Rollin’ 40's members that Foster conducted many web searches about it. These searches included a search regarding how long gunshot residue lasted on clothing. He searched that topic because Shaw had expressed concern about it in relation to the shooting at The Hut. Foster did not tell the police about Shaw's statements because he did not want to be a "snitch."
Officer Smith testified that Shaw was murdered by gang members sometime after Ellis was killed. However, Officer Smith was not aware of any connection between the two shootings. Officer Smith had seen Foster and Shaw together.
Foster also texted his friend Duke to "stay tucked," which meant to stay inside. Foster sent the message because he feared gang members would commit a retaliatory shooting. Duke, however, was not a Rollin’ 40's member. Foster acknowledged he previously had been stopped while in a car with Duke and a Rollin’ 40's member named Kayvon Murphy.
As for his recorded jailhouse statements to the undercover agent, Foster asserted he falsely made statements about the shooting to make himself seem dangerous to the cellmate. Foster said the first thing he noticed when he entered the cell was that the agent was Latino, which was significant to him because Latino and African American men commonly did not get along in "gang culture." Moreover, Foster was scared because he previously had been stabbed by Latino individuals. He falsely admitted committing the shooting so he would not appear weak to his cellmate. When asked what he meant when he told the agent that he was "still banging," Foster said he simply meant "socializing" with friends. He told the agent the gun used in the shooting was a .45 because that's what his friend "Spodey Face" carried.
Foster testified that in 2013 or 2014, he was walking to a store when he was confronted by "two Hispanic" men, who asked where he was from. By that time, Foster had joined the Rollin’ 40's. However, Foster did not mention his gang because he thought doing so might escalate the situation. After Foster and the men exchanged unspecified "words" Foster started to walk away. The men stabbed him in the back.
C. Charges and Jury Verdict
An amended information, filed on July 13, 2017, charged Foster with the murder of Robert Ellis ( Pen. Code, § 187, subd. (a) ; count 1), and five counts of attempted willful, deliberate, and premeditated murder of additional unnamed victims ( §§ 187, subd. (a), 664 ; counts 2-6). The information further alleged that Foster intentionally used and discharged a firearm, causing great bodily injury and death (§ 12022.53, subds. (b), (c), & (d)), and that the offenses were gang-related (§ 186.22, subd. (b)(1)(C)).
Undesignated statutory citations are to the Penal Code.
On December 14, 2017, the jury found Foster guilty of all counts, and found all enhancement allegations to be true. The trial court sentenced Foster to a total term of 90 years to life in state prison. This appeal followed.
DISCUSSION
I. Statements Made to Perkins Agent
See footnote *, ante .
II. Sufficiency of Evidence to Support Five Counts of Attempted Murder
Foster was convicted in counts 2 through 6 of the premeditated attempted murders of five unidentified victims who were standing next to Ellis when Foster opened fire. Consistent with the information, the verdict forms for the attempted murder counts identified each victim as "a person standing in front of 5507 South Vermont."
Foster fired seven shots, and struck Ellis with one of the bullets. The information alleged only five counts of attempted murder, consistent with the testimony at the preliminary hearing that the video showed the group near Ellis contained "at least five" people.
Foster contends the evidence was insufficient to support the five attempted murder counts because the prosecutor did not clearly identify the alleged victims; only Ellis was struck; and Foster did not move his arm when firing, indicating Ellis was his only target. As explained below, our review of the record discloses sufficient evidence to support the jury's verdicts.
A. Relevant Legal Principles
1. Standard of Review
In reviewing a sufficiency of the evidence claim, we review the trial record to determine whether a reasonable trier of fact could have found proof of guilt beyond a reasonable doubt. ( People v. Rodriguez (1999) 20 Cal.4th 1, 11, 82 Cal.Rptr.2d 413, 971 P.2d 618.) When making this determination, "[w]e view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ( People v. Griffin (2004) 33 Cal.4th 1015, 1028, 16 Cal.Rptr.3d 891, 94 P.3d 1089.)
2. Attempted Murder
" ‘Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citation.]" ( People v. Sanchez (2016) 63 Cal.4th 411, 457, 204 Cal.Rptr.3d 682, 375 P.3d 812.) "Direct evidence of intent to kill is rare, and ordinarily the intent to kill must be inferred from the statements and actions of the defendant and the circumstances surrounding the crime." ( People v. Canizales (2019) 7 Cal.5th 591, 602, 248 Cal.Rptr.3d 370, 442 P.3d 686.) "[T]he act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice." ( People v. Smith (2005) 37 Cal.4th 733, 742, 37 Cal.Rptr.3d 163, 124 P.3d 730.) The fact that the bullet misses its mark or fails to prove lethal, is not dispositive. ( Ibid . )
3. Specific vs. Random Targets
A person who acts with intent to kill in firing at a group of people is "guilty of attempted murder even if he or she intended to kill a random person rather than a specific one." ( People v. Stone (2009) 46 Cal.4th 131, 141, 92 Cal.Rptr.3d 362, 205 P.3d 272 ( Stone ).) "Although a primary target often exists and can be identified, one is not required." ( Id. at p. 140, 92 Cal.Rptr.3d 362, 205 P.3d 272.) In describing this theory, the California Supreme Court explained that "[a]n indiscriminate would-be killer is just as culpable as one who targets a specific person." ( Ibid. ) Multiple attempted murder convictions can be supported by the same reasoning. ( Ibid. ; People v. Medina (2019) 33 Cal.App.5th 146, 156, 244 Cal.Rptr.3d 714 ["A jury can reasonably conclude a defendant without a primary target who repeatedly shoots into a crowd with the intent to kill committed multiple counts of attempted murder"]; see also People v. Thompkins (2020) 50 Cal.App.5th 365, 396, 264 Cal.Rptr.3d 186 ["under Stone it could be found ... that [the defendant] intended to kill someone in the crowd—anyone who got in the way of his bullets—and thus attempted to murder each of those victims"].)
The absence of a specific target distinguishes this case from the "kill zone" theory. The kill zone theory applies when the defendant chooses, as a means of killing a specific, targeted individual, to kill everyone in the area in which the targeted individual is located (i.e., the "kill zone") as the means of accomplishing the killing of the targeted victim. (People v. Canizales , supra, 7 Cal.5th at pp. 607-608, 248 Cal.Rptr.3d 370, 442 P.3d 686.) In contrast, the Stone theory applies when there is no specifically targeted individual. The two theories are mutually exclusive. (See People v. McCloud (2012) 211 Cal.App.4th 788, 798, 802, fn. 6, 149 Cal.Rptr.3d 902 (McCloud ); see also People v. Thompkins , supra , 50 Cal.App.5th at p. 396, fn. 10, 264 Cal.Rptr.3d 186 ["Stone establishes that the kill zone theory cannot be used when the defendant fires indiscriminately at a crowd of people, not aiming to kill anyone in particular, but hoping to kill as many as possible"].)
The prosecutor here did not rely on a "kill zone" theory and the jury was not instructed on that theory.
In Stone , the defendant fired a single shot at a group of approximately 10 people and was charged with the attempted murder of one of the group. ( Stone , supra , 46 Cal.4th at pp. 135-136, 92 Cal.Rptr.3d 362, 205 P.3d 272.) The prosecutor conceded that there was no evidence the defendant intended to kill a specific targeted individual. ( Id . at p. 139, 92 Cal.Rptr.3d 362, 205 P.3d 272.)
The Supreme Court held that the prosecutor's concession did not preclude a conviction of attempted murder, but explained that "it would no doubt have been better had the case been charged differently" ( Stone , supra , 46 Cal.4th at p. 141, 92 Cal.Rptr.3d 362, 205 P.3d 272 ), such as simply alleging that the defendant "attempted to murder a member of a group of persons gathered together in a parking lot in Lemoore, California." ( Id. at pp. 141-142, 92 Cal.Rptr.3d 362, 205 P.3d 272.)
Consistent with Stone , in Foster's case the information and verdict forms identified each victim as "a person standing in front of 5507 South Vermont." Thus, contrary to Foster's assertions, the victims in counts 2 to 6 were adequately identified. The only question is whether there was sufficient evidence that Foster intended to kill more than one person in the group.
B. The Evidence Was Sufficient to Support All Five Counts of Attempted Murder
In reviewing Foster's sufficiency claim we are guided primarily by two cases: our high court's decision in People v. Perez (2010) 50 Cal.4th 222, 112 Cal.Rptr.3d 310, 234 P.3d 557 ( Perez ), and our own decision in McCloud , supra , 211 Cal.App.4th 788, 149 Cal.Rptr.3d 902. We summarize each below.
1. Perez
In Perez , the defendant "fired a single bullet at a distance of 60 feet, from a car going 10 to 15 miles per hour, at a group of seven peace officers and a civilian who were standing less than 15 feet apart .... The bullet hit one officer in the hand, nearly severing his finger, but killed no one." ( Perez , supra , 50 Cal.4th at p. 224, 112 Cal.Rptr.3d 310, 234 P.3d 557.) The defendant was convicted of eight counts of attempted murder. Our high court reversed seven of the convictions, concluding that "the evidence is sufficient to sustain only a single count of premeditated attempted murder of a peace officer." ( Id. at p. 225, 112 Cal.Rptr.3d 310, 234 P.3d 557.) The court reasoned that "there is no evidence that [the] defendant knew or specifically targeted any particular individual or individuals in the group of officers he fired upon. Nor is there evidence that he specifically intended to kill two or more persons with the single shot. Finally, there is no evidence [the] defendant specifically intended to kill two or more persons in the group but was only thwarted from firing off the required additional shots by circumstances beyond his control. Without more, this record will not support conviction of eight counts of premeditated attempted murder." ( Id. at pp. 230-231, 112 Cal.Rptr.3d 310, 234 P.3d 557, fns. omitted.)
2. McCloud
In McCloud , we deemed Perez controlling in determining whether there was sufficient evidence to support 46 counts of attempted murder following a group shooting in which 10 shots were fired. ( McCloud, supra, 211 Cal.App.4th at p. 805, 149 Cal.Rptr.3d 902.) The shots were all were fired at a party held at a Masonic Lodge, at which over 400 guests were present. Three bullets struck three victims, killing two and injuring the third. The seven remaining bullets hit no one. Officers determined that all 10 casings were from the same semi-automatic weapon. ( Id . at p. 794, 149 Cal.Rptr.3d 902.)
Investigating officers identified five bullet strike marks on the exterior wall of the lodge near the broken window and two bullet holes in a car in the parking lot. Three bullets passed through the window and struck and lodged in victims Moses, Taylor, and Gaines. The gun itself was never found. ( McCloud, supra, 211 Cal.App.4th at p. 795, 149 Cal.Rptr.3d 902.)
On appeal, we concluded the evidence was sufficient to support only eight attempted murder convictions "because 10 shots were fired but two of them killed victims Moses and Taylor, for which [the defendant] was separately convicted and punished." ( McCloud, supra, 211 Cal.App.4th at p. 807, 149 Cal.Rptr.3d 902.) Citing Perez, we noted there was no evidence that the defendant intended to kill more than one person per bullet and no evidence that the defendant had more than 10 bullets. ( McCloud, supra , at p. 807, 149 Cal.Rptr.3d 902.) As such, we limited the counts, as in Perez , to the number of bullets fired at the crowd. ( Id. at pp. 806-807, 149 Cal.Rptr.3d 902.) 3. Analysis
Viewing the evidence in the light most favorable to the judgment, there was sufficient evidence to support all five attempted murder convictions.
First, there was no indication Foster had a primary target. There was no preexisting relationship or prior incident between Foster and Ellis, nor any other evidence suggesting Foster specifically targeted Ellis when he opened fire. The surveillance footage shows that shortly prior to the shooting, there were at least six men tightly grouped in front of a metal roll-up door near the barbershop, with several moving about as they interacted. The footage further shows that Foster walked up an alley toward the parking lot, crouched down for cover as he neared a blue sedan, and then rapidly popped up and opened fire on the group. While still firing, Foster walked backward and then ran away.
We have reviewed the surveillance footage. The recordings, filmed from three different locations, show different aspects of the events leading up to and after the shooting, as well as the shooting itself, without sound.
Second, during his jailhouse conversation with the Perkins agent, the agent asked Foster, "What enemy—enemy they blaming you for," to which Foster answered, "some Hoovers." At another point the agent asked if "[t]here was a gang of them," to which Foster responded, "Uh-huh." During the conversation, Foster gave no indication he sought to target a specific individual.
Foster, however, claims the "manner in which the shooting occurred" supports the conclusion "that only Ellis was the intended target." In so arguing, Foster asserts that the surveillance footage shows "the shooter fire[d] seven times with a straight arm" and "did not scatter his shots or move his arm to suggest an attempt to hit multiple targets." Foster further claims there was no evidence to show the unnamed victims were in the line of fire when the bullets were fired. The record does not support such a narrow view.
Foster fired a semi-automatic weapon from a distance of 40 to 50 feet at a group containing at least six males standing so closely to one another that they fit within the frame of the metal door of the barbershop. The surveillance footage shows Foster firing toward the group and walking backward as he continues to fire his rounds. While Foster continues to aim in one direction, his hand is not perfectly steady throughout the shooting. Police officers found three strike marks along the hood of a mini-van parked approximately two car lengths from the metal door, in the line of fire. Officers also found a bullet hole that went through the center of the metal door, as well as strike marks in the frame and the stucco wall to the left of the door. The video footage shows the men diving and scattering as bullets ricochet off the stucco wall. Contrary to Foster's assertions, this evidence was sufficient to establish that Foster fired indiscriminately at the group, intending to kill as many as possible with the bullets fired. ( McCloud , supra , 211 Cal.App.4th at pp. 794, 806-807, 149 Cal.Rptr.3d 902 ; see also People v. Thompkins , supra , 50 Cal.App.5th at p. 397, 264 Cal.Rptr.3d 186.) The fact that no one other than Ellis was struck or injured does not negate an intent to kill. ( McCloud , supra , at pp. 806-807, 149 Cal.Rptr.3d 902 ; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690, 60 Cal.Rptr.2d 761 [noting that the fact the victim escaped death because of the shooter's poor marksmanship does not necessarily establish a less culpable state of mind].) To the extent Foster cites People v. Virgo (2013) 222 Cal.App.4th 788, 166 Cal.Rptr.3d 384 ( Virgo ), to support his insufficiency claim, the analysis in Virgo supports, rather than undermines, the jury's verdict in this case.
Foster notes that "[n]o one testified that the strike marks on the metal door were necessarily from the shooting on March 25, 2016," or that "any of the bullets came close to hitting any of the unnamed victims." However, the surveillance footage—played for the jury and admitted into evidence—shows bullets bouncing off the wall near the frame, and spraying dust, and at least five males standing a few feet from those strikes dispersing and running for cover. The footage was accompanied by testimony noting the location of Ellis and the group, as well as the shooter, the bullet strikes, and the casings. (See People v. Medina , supra, 33 Cal.App.5th at p. 152, fn. 6, 244 Cal.Rptr.3d 714 [referencing its review of a surveillance video of a shooting on appeal].)
While we reference the phrase "line of fire" during our discussion, it is important to recognize that cases involving indiscriminate, multi-bullet shootings do not require that the victims be perfectly lined up behind each other. That narrow interpretation of "line of fire" arises in situations where one bullet is discharged, but the prosecution seeks to charge multiple counts of attempted murder. (See Perez, supra, 50 Cal.4th at pp. 232-233, 112 Cal.Rptr.3d 310, 234 P.3d 557 [distinguishing cases where the "direct line of fire" allowed the prosecutor to charge two attempted murder counts from one shot]; People v. Smith , supra, 37 Cal.4th at pp. 736-737, 37 Cal.Rptr.3d 163, 124 P.3d 730 [the defendant fired a single bullet through a rear windshield, barely missing both the driver and her three-month-old son, who was in an infant car seat directly behind her]; People v. Chinchilla, supra, 52 Cal.App.4th at p. 690, 60 Cal.Rptr.2d 761 [the defendant fired a single bullet at two police officers who were crouched, one behind the other, directly in the line of fire and visible to him].)
In Virgo , four teams of police officers surrounded a home. The defendant fired at least 14 times from inside the house in various directions. A criminalist determined 10 of the shots exited the house. ( Virgo , supra , 222 Cal.App.4th at pp. 792-796, 166 Cal.Rptr.3d 384.) The defendant was convicted of 10 counts of premeditated attempted murder of 10 specific, named officers. ( Id. at pp. 790, 800, 166 Cal.Rptr.3d 384.)
On appeal, the court determined there was sufficient evidence for five, but not 10 counts of attempted murder. The court's analysis proceeded as follows: One group of four officers testified that multiple shots were fired in their direction, with one officer stating that four to seven gunshots were directed at them; thus sufficient evidence supported the defendant's conviction for attempted murder as to all four officers. ( Virgo , supra , 222 Cal.App.4th at p. 799, 166 Cal.Rptr.3d 384 ) As to another group of three officers, the evidence indicated the defendant fired one shot in their direction, and the court therefore concluded that the single shot could support one count of attempted murder, but not three. ( Ibid . ) A third group of officers heard shots, but could not say that any were fired in their direction. Thus no substantial evidence established that the defendant committed attempted murder as to the third group. ( Id. at p. 800, 166 Cal.Rptr.3d 384.)
Thus, the Virgo case turned on whether there existed evidence that shots were fired in the direction of the alleged victims—as demonstrated by the court's prefatory statements prior to conducting its analysis: "We look to see if [the defendant] fired at each of the 10 victims in a manner that could have killed them had [the] defendant's aim been more on target. Obviously, [the] defendant cannot be guilty of attempting to murder someone who is taking cover on the ground outside when [the] defendant fires his gun up into the ceiling." ( Virgo , supra , 222 Cal.App.4th at p. 799, 166 Cal.Rptr.3d 384.)
Here, the evidence established that Foster fired a semi-automatic weapon seven times in the direction of at least six individuals in rival gang territory, killing one. Firing a gun at the group, under such circumstances, was substantial evidence from which the jury could find a specific intent to kill, and at least one direct but ineffective step towards killing the five victims who survived the shooting. ( People v. Smith, supra, 37 Cal.4th at p. 742, 37 Cal.Rptr.3d 163, 124 P.3d 730 ; see also People v. Thompkins , supra , 50 Cal.App.5th at p. 397, 264 Cal.Rptr.3d 186 [stating that under Stone , an intent to kill can be inferred from the type of weapon, the number of shots fired, the manner in which the shooter fired, and the circumstances under which he fired, including proximity to his victims.].)
Accordingly, we uphold Foster's conviction as to all five counts of attempted murder.
See footnote *, ante .
The judgment of the trial court is affirmed in all respects.
We concur:
CHANEY, J.
BENDIX, Acting P. J.