Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA080068, Robert M. Martinez, Judge.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Jonathan Luis Miramontes challenges his conviction for one count of murder, two counts of attempted murder, and one count of carrying a loaded firearm. We conclude that the trial court should not have given a “kill zone” instruction with respect to the attempted murder counts, but that the instructional error was not prejudicial. We reject Miramontes’s remaining arguments and affirm.
PROCEDURAL BACKGROUND
In a four-count information, Miramontes (defendant) was charged with first degree murder of Jose Carrillo (Pen. Code, § 187), attempted murder of Anthony Montoya and Ernesto Alcala (§§ 664, 187), and carrying a loaded firearm (§ 12031). The information alleged that both attempted murders were committed willfully, deliberately, and with premeditation. It was also alleged that the murder and the attempted murders were committed for the benefit of a gang within the meaning of section 186.22, subdivision (b)(1)(C). “It [wa]s further alleged as to count(s) 1, 2 and 3 that a principal personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death to Ernesto Alcala, Anthony Montoya, Jose Carrillo within the meaning of Penal Code section 12022.53[, subdivisions] (d) and (e)(1).”
Undesignated statutory citations are to the Penal Code.
Defendant was tried by a jury. Following defense counsel’s section 1118.1 motion, the trial court amended the charge of carrying a loaded firearm to a misdemeanor.
The jury found defendant guilty of all charges and found all special allegations true. On the murder conviction, the court sentenced defendant to state prison for 25 years to life, plus an additional 25 years to life for the section 12022.53, subdivision (d) enhancement. For each attempted murder, the court imposed a consecutive 15-year-to-life term, plus a 25-year-to-life term for the section 12022.53, subdivision (d) enhancement. For carrying a loaded firearm, the court sentenced defendant to a one year concurrent term.
FACTUAL BACKGROUND
On July 20, 2007, Joseph Lopez held a party at his house in Baldwin Park. Although he intended it to be a small gathering, someone posted information about the party on the internet, and Lopez estimated 150 people attended, crowding into his backyard.
Attendees included defendant and his friends, who were members of the Blackwood Puente (Blackwood) gang. The victims, Carrillo and Montoya, who also attended the party, were members of the El Monte Flores (EMF) gang. Alcala, who was not a gang member, associated with Montoya and Carrillo at the party.
Consuelo Verdugo testified that Carrillo was a member of EMF. Jennifer Galindo and Montoya testified that he was not.
When defendant and his friends initially arrived at Lopez’s house, Lopez sent them away. Before leaving, defendant or one of his friends announced the group’s gang membership. Later, defendant and his friends returned, and Lopez did not send them away.
About 15 minutes after defendant returned, Lopez heard yelling from the backyard, followed by gunshots. When the shooting stopped, Lopez saw defendant, who was holding a gun, exit the side of the house. Defendant fired two additional shots. Lopez then went into the backyard and saw two bodies on the ground. One person had been shot in the leg, and the other person had been shot in the chest.
Lopez did not see the backyard shootings but Verdugo, Galindo, and Carla Zambrano did. Verdugo attended the party with Montoya, Alcala, and other friends. Montoya was Verdugo’s boyfriend. Verdugo was standing near Montoya, when Montoya asked defendant about his gang membership. Defendant responded that he was a member of Blackwood, and Montoya retorted that he belonged to EMF. Defendant told Montoya that his cousin was also from EMF, a fact later confirmed by a police officer.
One of Montoya’s friends bumped into one of defendant’s friends in the crowded backyard. The contact triggered a fight, involving Montoya, defendant, and others. Just before defendant started shooting, Verdugo heard someone yell, “fuck Flores.” Verdugo saw Montoya and Carrillo fall. Defendant was the only person with a gun and shot four or five times.
Galindo attended the party and observed Carrillo, Alcala, and Montoya together at the party. Galindo saw defendant and Carrillo argue and fight just before she heard gunshots. Galindo saw defendant holding a gun and witnessed him shoot it. According to Galindo, the first shot was in the air, and the fourth shot was pointed directly at Carrillo’s heart at a distance of 12 inches. Galindo testified that the shots were fired continuously and that after shooting Carrillo, defendant ran out of the backyard. When the shooting stopped, Carrillo, Montoya, and Alcala were lying on the ground.
Zambrano attended the party and testified that Carrillo, Montoya, and others (not including Alcala) were involved in the fight with four guys. She had seen the fighters earlier shake hands. During the shooting, Zambrano was standing behind Carrillo. Montoya and Carrillo fell to the ground.
Defense counsel stipulated that Blackwood was a criminal street gang as defined by section 186.22, subdivision (b)(1). Deputy Sheriff Ron Duval testified as a gang expert. According to Duval, a gang member earns respect in a gang by committing murders. A gang member’s primary goal is to achieve respect within a gang. Duval testified that EMF and Blackwood were rival gangs. Based on a hypothetical with facts similar to this case, Duval opined that the murder and attempted murders were committed for the benefit of a gang. According to Duval, escalating the physical contact by using a firearm benefitted the gang by intimidating the persons attending the party and other people in the neighborhood. Further, the fact that someone from Blackwood shot someone from EMF raises the level of respect of the Blackwood gang. Duval also opined that the acts were committed with the specific intent to promote gang activities because the circumstances demonstrated that if someone interferes with a Blackwood member the result would be a killing. In concluding the crimes were committed for the benefit of a gang, Duval also relied on the fact that there were fellow gang members at the party.
Defendant did not testify. He had previously admitted that a weapon found in a vehicle he had been in was his, and it was undisputed that the weapon was not the one used in the shootings at Lopez’s party. Defendant’s girlfriend and her friend testified they attended the party with defendant, and defendant was not the shooter. During rebuttal, Traci Gonzales, the investigating officer, testified that defendant had told her he attended the party with other males, and that his girlfriend did not attend.
Carrillo died of a single gunshot wound to his chest. Montoya was hit in his right knee and left leg with a single bullet that went through his knee. He was hospitalized for one or two weeks and had two surgeries. Alcala suffered a graze wound.
DISCUSSION
Defendant argues that two photographic lineups were unduly suggestive, and as a result, Lopez’s, Verdugo’s, and Galindo’s in-court identifications should have been suppressed. Defendant challenges the sufficiency of the evidence to support the jury findings of (1) first degree premeditated and deliberate murder; (2) two counts of attempted premeditated and deliberate murder; (3) the gang enhancement; and (4) great bodily injury with respect to Alcala. Defendant also argues that with respect to both counts of attempted murder, the trial court erred in instructing the jury on a “kill zone” theory. Respondent disputes each contention. We conclude the kill zone instruction was erroneous, but reject defendant’s other contentions.
1. Photographic Lineup
Defendant contends that police used two impermissibly suggestive six-pack photographic lineups, and that as a result, the trial court should have suppressed Lopez’s, Verdugo’s, and Galindo’s eyewitness identifications. Defendant’s sole concern is that his eyebrows allegedly were bushier than the other persons included in the six-pack photographic lineups. Defendant emphasizes that Zambrano described the shooter as having bushy eyebrows. In both six-packs included in our record, defendant’s picture was in the number four position.
We rely on some testimony from the preliminary hearing.
Lopez saw defendant for two to three minutes when he told defendant to leave the party. Lopez later observed defendant and his friends return to the party, and Lopez watched defendant go through a gate into Lopez’s backyard. Lopez saw defendant a third time when defendant exited the house. At that time, Lopez was facing the street, and defendant ran into the street where Lopez could see him “eye to eye.” Lopez testified that the shooter was bald. Defendant’s mother confirmed that defendant was bald at the time of the party. Lopez identified defendant from four sets of six-packs, but the record does not identify the three six-packs viewed by Lopez from which he apparently selected no person.
Verdugo saw defendant when Montoya asked defendant about his gang membership. Verdugo stood about 15 feet from defendant when she saw him shoot. Verdugo saw the flash of the gun. She remembered defendant’s face because “[b]efore [defendant] was shooting, [defendant] was talking to my boyfriend. I was there. I [saw] the face.” At the preliminary hearing, Verdugo testified that she circled defendant’s photograph from a six-pack because she recognized the person as the shooter. Verdugo recognized the shooter “right away” from the picture. Verdugo considered three six-packs, and identified only defendant. The record contains only the six-pack from which Verdugo identified defendant.
Galindo was about three to five feet from defendant when she saw him arguing with Carrillo. Galindo looked at the photographic lineup and initially believed both the person in position number one and the person in position number four looked like the shooter. Upon looking more closely at the pictures, she concluded number four was the shooter.
b. Legal Principles
To demonstrate eyewitness identifications should have been excluded, a defendant must show (1) that the pretrial identification procedure was suggestive and (2) that the totality of the circumstances established that the identification was not reliable. (People v. Avila (2009) 46 Cal.4th 680, 698; People v. Ochoa (1998) 19 Cal.4th 353, 412; People v. Johnson (1992) 3 Cal.4th 1183, 1216.) “[F]or a witness identification procedure to violate the due process clauses [of the state and federal constitutions], the state must, at the threshold, improperly suggest something to the witness -- i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure.” (People v. Ochoa, supra, 19 Cal.4th at p. 413.) The question is not whether there were differences between the lineup participants, but “‘whether anything caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’” (People v. Avila, supra, 46 Cal.4th at p. 698.)
Five factors are relevant in assessing the reliability of a challenged identification procedure: “[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated [during the challenged procedure], and the time between the crime and the [challenged procedure].” (Manson v. Brathwaite (1977) 432 U.S. 98, 114.)
In People v. Carpenter (1997) 15 Cal.4th 312, the defendant claimed that a lineup was unduly suggestive because the beards of the other persons included in the photographic lineup were thicker than his. (Id. at p. 367.) The court found no obvious distinction in facial hair, and concluded that “‘[m]inor differences in facial hair among the participants did not make the lineup suggestive.’ [Citation.] Indeed, it would be virtually impossible to find five others who had started growing their beards six weeks earlier and who also sufficiently resembled defendant in other respects.” (Ibid.)
People v. Carpenter, supra, 15 Cal.4th 312, was superseded by statute on another ground, as explained in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.
c. Application of Legal Principles
Defendant demonstrated neither that the photographic lineups were suggestive nor that the identifications were unreliable under the totality of the circumstances. Focusing only on the two photographic lineups contained in our record, defendant failed to show that he was the only person in the six-packs with prominent eyebrows. At least two others in the lineup shown to Galindo -- those in positions one and five -- had noticeable eyebrows. In the other lineup, the person in position three also had prominent eyebrows.
We independently review a trial court’s ruling that a pretrial identification procedure was not unduly suggestive. (People v. Avila, supra, 46 Cal.4th at pp. 698-699.)
More significantly, even if we assume that defendant was the person with the bushiest eyebrows, he failed to demonstrate that the photographic lineups were unduly suggestive. There was no evidence that any officers improperly suggested that Lopez, Verdugo, or Galindo should select defendant from the lineup. Galindo did not identify anyone until she considered pictures one and four more closely, indicating that defendant’s photo did not stand out. Although Zambrano testified the shooter had bushy eyebrows, she was unable to identify defendant. All of the persons pictured in both lineups included in our record were of similar ages and appeared to be of similar ethnicity. Most of them had facial hair, and all had short haircuts. As in People v. Carpenter, supra, 15 Cal.4th at page 367, minor differences in eyebrows did not render the lineups suggestive.
Nor did defendant show the identifications were unreliable under the totality of the circumstances. Lopez saw defendant three times -- when he first attempted to enter the party at which time Lopez spoke to him, when defendant returned to the party after having been turned away, and when he left the scene holding a gun and shooting. Thus, Lopez had ample opportunity to view defendant. Verdugo also saw defendant multiple times. First, she saw him when Montoya asked defendant his gang status. Later, she saw defendant when he was shooting the gun. Verdugo recognized defendant’s picture “right away.” Although Galindo talked to detectives only a week before trial, defendant failed to show her identification was unreliable, and it was corroborated by Lopez’s and Verdugo’s identifications. Galindo also saw defendant at close range -- approximately three to five feet -- and after comparing numbers one and four, she was sure number four (defendant) was the shooter. In short, defendant does not show Lopez’s, Verdugo’s, or Galindo’s in-court identification should have been suppressed.
2. Sufficiency of the Evidence
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”’” (People v. Smith (2005) 37 Cal.4th 733, 738-739, quoting People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “‘“Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]”’” (Ibid.)
a. Substantial Evidence Supported the Jury Finding that Defendant Committed the First Degree Murder of Carrillo
Defendant argues that the record fails to support his first degree murder conviction because it lacks substantial evidence of premeditation and deliberation. “‘“In this context, ‘premeditated’ means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’”’ [Citations.] “‘An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.” [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported -- preexisting motive, planning activity, and manner of killing -- but “[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.”’” (People v. Burney (2009) 47 Cal.4th 203, 235.)
There was sufficient evidence to demonstrate premeditation and deliberation necessary for first degree murder. Before defendant shot Carrillo, the two men had been arguing. Verdugo heard someone yell, “fuck Flores” -- a reference to Carrillo’s gang -- demonstrating a motive for defendant’s shooting Carrillo. Defendant brought a weapon with him to the party, suggesting he planned to engage in violence. Defendant shot Carrillo at close range, in the heart, indicating a preconceived design to take his life. A rational jury could have concluded that Carrillo’s murder occurred as a result of preexisting reflection.
b. Substantial Evidence Supported the Findings that Defendant Attempted to Murder Montoya and Alcala, and that the Attempted Murders Were Committed With Premeditation and Deliberation
“[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Smith, supra, 37 Cal.4th at p. 739.) In addition to finding defendant intended to kill Alcala and Montoya, the jury found that defendant acted with premeditation and deliberation.
Substantial evidence supported the finding that defendant intended to kill Montoya and Alcala. “The act of firing toward a victim at a close, but not point blank, range ‘in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill.’” (People v. Smith, supra, 37 Cal.4th at p. 741.) The evidence supported the finding that defendant shot Montoya and Alcala from short range as he was seen shooting Carrillo from a few feet away, and Montoya and Alcala fell to the ground close to Carrillo.
Substantial evidence also supported the finding of premeditation and deliberation. Montoya had asked defendant his gang affiliation, and Montoya had told defendant he was from a rival gang. Although Alcala was not a gang member, he was with Montoya and Carrillo at the party. Montoya’s gang membership and Alcala’s association with Montoya provided a motive for the shooting. Defendant targeted EMF members and Alcala, who was associating with EMF. A rational juror could have concluded that defendant, a Blackwood member, considered beforehand and decided after consideration to kill EMF members, especially given that the only persons shot at the crowded party were Carrillo, Montoya, and Alcala.
c. Substantial Evidence Supported the Gang Enhancement
Section 186.22, subdivision (b)(1) provides an enhanced sentence for any person who is convicted of a felony committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....” As we explain, substantial evidence supported each element.
First, there was ample evidence defendant acted in association with other gang members when he shot Carrillo, Montoya, and Alcala. He came to the party with them, left with them, returned with them, and fought alongside them. (See People v. Williams (2009) 170 Cal.App.4th 587, 625 [gang enhancement supported where a defendant commits a crime in association with other gang members]; People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [same].) A jury also could have concluded that the crimes were for the benefit of defendant’s gang based on Duval’s testimony that the shooting would raise the level of respect of the Blackwood gang. The shootings were precipitated by a fight between members of rival gangs, and the record identifies no other animosity between defendant and Carrillo, Montoya, or Alcala. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1382-1383 [substantial evidence that crime committed for benefit of gang where shooting precipitated by gang dispute].)
A rational jury also could have concluded that defendant committed the crimes with the specific intent to promote, further, or assist criminal conduct by gang members. The defendant’s intent to promote criminal activity may relate to the crimes committed by the defendant. (People v. Hill (2006) 142 Cal.App.4th 770, 774; People v. Romero (2006) 140 Cal.App.4th 15, 19.) The crimes were gang-related criminal activity because defendant targeted members of a rival gang after he or another gang member yelled, “fuck Flores.” Additionally, Duval explained that such shootings demonstrated that if someone interfered with a Blackwood member, that person would be shot. Galindo testified that she was familiar with gangs and that the shootings were gang-related.
d. Substantial Evidence Supported the Great Bodily Injury Enhancement on Each Count
The information alleged, “as to count(s) 1, 2 and 3 that a principal personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death to Ernesto Alcala, Anthony Montoya, Jose Carrillo within the meaning of Penal Code section 12022.52(d) and (e)(1).” With respect to each offense the jury expressly found “that a principal personally and intentionally discharged a firearm, to wit, a handgun, which proximately caused great bodily injury or death to Jose Carrillo,...”
Defendant challenges the sufficiency of the evidence supporting the jury finding that Alcala suffered great bodily injury within the meaning of section 12022.53, subdivision (d) (12022.53(d)). As we explain below, defendant’s argument fails because the imposition of each section 12022.53(d) enhancement was supported by evidence that Carrillo was killed in the commission of murder and two counts of attempted murder.
Section 12022.53(d) provides: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) [including murder and attempted murder]... personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”
In People v. Frausto (2009) 180 Cal.App.4th 890 (Frausto), the court held that where a defendant was convicted of one count of murder and two counts of attempted murder, the death of the murder victim supported imposition of the section 12022.53(d) enhancement with respect to all three crimes. Frausto further concluded that “a firearm is discharged ‘in the commission of’ a felony within the meaning of section 12022.53(d) if the underlying felony and the discharge of the firearm are part of one continuous transaction, including flight after the felony to a place of temporary safety.” (Id. at p. 902.) Frausto relied on People v. Oates (2004) 32 Cal.4th 1048, in which our Supreme Court held that a single injury supports multiple section 12022.53(d) enhancements, because the language of section 12022.53(d) is not limited to the harm done to a particular victim. (Oates, supra, 32 Cal.4th at pp. 1052-1056.) The Frausto court found substantial evidence supported the enhancement on each count based on the death of a single victim.
We requested and received supplemental briefing on the applicability of Frausto to this case.
This case is indistinguishable from Frausto. As in Frausto, defendant was convicted of one count of murder and two counts of attempted murder. With respect to each count the jury found that defendant personally discharged a firearm causing the death of Carrillo. It was undisputed that defendant fired the shots continuously, supporting the inference that Carrillo was killed in the commission of the attempted murders. Thus, imposition of the section 12022.53(d) enhancement on each count was appropriate, regardless of whether Alcala also suffered great bodily injury. In short, substantial evidence supported the imposition of the section 12022.53(d) enhancement on the murder count and on both attempted murder counts based on the death of Carrillo.
Under section 12022.53, only one additional term of imprisonment may be imposed per person for each crime. (People v. Oates, supra, 32 Cal.4th at pp. 1056-1057; § 12022.53, subd. (f).) Therefore, we need not consider whether Alcala also suffered great bodily injury because the court could not have imposed an additional term of imprisonment.
Finally, defendant’s argument that he lacked notice that proof of injury to only one named victim would be sufficient to enhance his sentence on each count lacks merit. “‘The “preeminent” due process principle is that one accused of a crime must be “informed of the nature and cause of the accusation.” [Citation.] Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’” (People v. Seaton (2001) 26 Cal.4th 598, 640-641.) Here, defendant was provided notice of the charges against him. The information alleged that “as to count(s) 1, 2 and 3 that a principal personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death to Ernesto Alcala, Anthony Montoya, Jose Carrillo within the meaning of Penal Code section 12022.52(d) and (e)(1).” The jury was expressly asked to determine whether, as to each offense, “a principal personally and intentionally discharged a firearm, to wit, a handgun, which proximately caused great bodily injury or death to Jose Carrillo, within the meaning of Penal Code Section 12022.53(d) and (e)(1)....” It found the allegation “to be true.” Defendant was not deprived of notice or the ability to defend against the charges. (See People v. Neal (1984) 159 Cal.App.3d 69, 73-74 [no due process violation where defendant on notice prosecution was seeking to enhance sentence for use of a deadly weapon, even where information identified incorrect statute].)
3. Instructional Error
Defendant argues that it was error to instruct the jury on a “kill zone” theory. We agree, but conclude the error was not prejudicial.
The jury was instructed as follows: “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 called [the] kill zone. In order to convict a defendant of the attempted murder of Anthony Montoya and Ernesto Alcala, the People must prove the defendant not only intended to kill Jose Carrillo but also either intended to kill Anthony Montoya and Ernesto Alcala or intended to kill anyone within the kill zone. [¶] If you have a reasonable doubt whether the defendant intended to kill Anthony Montoya and/or Ernesto Alcala or intended to kill Jose Carrillo by harming everyone in the kill zone then you must find the defendant not guilty of attempted murder of Anthony Montoya and/or Ernesto Alcala.
Respondent acknowledges that notwithstanding the absence of an objection at trial, defendant’s challenge to the instruction is cognizable insofar as he claims the evidence was insufficient to support the giving of the instruction. Because we conclude the instruction was inapplicable, we need not consider defendant’s alternative arguments regarding the instruction or respondent’s contention that those arguments are forfeited.
a. The Kill Zone Theory was Inapplicable
The kill zone theory applies where a defendant intends to kill a particular target and concurrently intends to kill others within a “kill zone.” (People v. Bland (2002) 28 Cal.4th 313, 329-331.) “‘The intent [to kill nontargeted victims] is concurrent [with the intent to kill a targeted victim]... 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.’” (Id. at p. 329.) The kill zone theory “addresses the question of whether a defendant charged with the murder or attempted murder of an intended target can also be convicted of attempting to murder other, nontargeted, persons.” (People v. Stone (2009) 46 Cal.4th 131, 138, italics omitted.)
Our Supreme Court has explained that the kill zone theory would apply when “‘an assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure A’s death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The 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. When the defendant escalated his mode of attack from a single bullet aimed at A’s head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A’s immediate vicinity to ensure A’s death.’” (People v. Bland, supra, 28 Cal.4th at pp. 329-330.) The kill zone theory does not apply where there is no evidence that the defendant used a means to kill that “‘inevitably would result in the death of other victims within a zone of danger.’” (People v. Stone, supra, 46 Cal.4th at p. 138.)
Here, the kill zone theory was inapplicable because there was no evidence that defendant used a means to kill Carrillo, Montoya, or Alcala that inevitably would have resulted in the death of other victims within a zone of danger. The evidence was that defendant shot four or five bullets. The first bullet was shot in the air. The fourth bullet hit Carrillo in the heart. There was no evidence that appellant shot at everyone in the backyard. Instead, the evidence showed he targeted EMF gang members and Alcala, who associated with EMF gang members. Although there were over 100 people at the party, two of the victims were EMF members and the third had been associating with EMF members at the party. There was no evidence defendant fired indiscriminately into the crowd in an effort to kill everyone there. The kill zone theory therefore was inapplicable.
b. The Instructional Error Was Not Prejudicial
The remaining issue is prejudice. (People v. Stone, supra, 46 Cal.4th at p. 139 [error in giving kill zone instruction not necessarily prejudicial].) We find the error was not prejudicial in this case. The only real issue at trial was identity. During opening argument, defense counsel stated, “[n]ow, there is going to be not much disagreement in terms of...the facts.... What this is going to be... is... a classic case[] of who done it.... You are going to be the deciders of who actually committed this crime.” During closing argument, defense counsel reminded the jurors that this was “basically a whodunit” case. Defense counsel emphasized that if the jury had any reasonable doubt defendant committed the crime, it had to find him not guilty and stressed that this was a “case of eyewitness identification.” Defense counsel thus concurred with the prosecutor’s characterization of the case as one hinging on the identity of the perpetrator. Finally, we note, that the prosecutor neither mentioned the kill zone instruction, nor relied on an argument that defendant intended to kill everyone at the party. In sum, the kill zone instruction, although inappropriate, did not undermine the defense that defendant was not the shooter. Under the circumstances of this case, giving the instruction was not prejudicial.
The prosecutor argued, “Mr. Carrillo was murdered. Mr. Montoya was shot in the leg, shattered his kneecap[.] [T]hat person, whoever it was, intended to kill Mr. Montoya except... shot him in the leg. He was a victim of attempted murder. Mr. Alcala was shot in the buttocks. The person who did it, whoever... did it, intended to kill him but missed and hit him in the buttocks. So, therefore, there’s no argument in this case whether the act themselves were murder or attempted murder. The only question for you when you go back there and deliberate is was it Mr. Miramontes who did it?”
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.