People v. Oliver CA2/5
B307225
| Cal. Ct. App. | Jul 1, 2021Background
- On December 1, 2018, after a confrontation in an Auto Zone parking lot, Larry Oliver was seen receiving a handgun and minutes later a dark four‑door car fired multiple rounds at a Mercedes carrying victims Irell McMillan (driver) and Khariana Houston (front passenger); neither victim was injured.
- McMillan identified Oliver from a six‑pack photo lineup and made recorded statements to police; at trial McMillan recanted and said he did not know Oliver, though the prosecution admitted the six‑pack and the station interview.
- Prosecution introduced surveillance video of the Auto Zone confrontation, recorded jail calls showing inculpatory statements, and testimony about the recovered firearm (not matching the crime scene caliber).
- A jury convicted Oliver of two counts of attempted murder and multiple assault and firearm offenses, found gang and firearm enhancements true, and acquitted/not guilty on some special‑circumstance allegations; he was sentenced principally to 15 years‑to‑life for shooting at an occupied vehicle.
- On appeal Oliver challenged (1) the CALCRIM No. 315 eyewitness‑identification instruction (certainty language), (2) the kill‑zone CALCRIM No. 600 instruction as applied to Houston, and (3) the denial of his new‑trial motion based on ineffective assistance of counsel; the court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eyewitness‑certainty language in CALCRIM No. 315 | Instruction was proper or any objection was forfeited | Removing certainty language required because research shows poor correlation between certainty and accuracy; instruction violated due process | Forfeited: Oliver did not object at trial; appellate court affirmed forfeiture and declined to reach merit because defendant failed to request modification |
| Kill‑zone instruction (CALCRIM No. 600) — adequacy and applicability to Houston | Instruction correctly described kill‑zone theory; substantial evidence supported giving it | Instruction was incomplete/fatally vague because it did not expressly require jury find Houston was inside the kill zone; insufficient evidence supported the theory | Forfeited: Oliver did not request clarifying language though Canizales issued pre‑trial; instruction was not an incorrect statement of law; substantial evidence supported kill‑zone (semi‑auto, eight shots, short distance, passenger proximity) |
| Sufficiency of evidence for kill‑zone inference | Evidence (weapon type, number of shots, distance, proximity) permits inference Oliver intended to kill everyone in immediate zone | Facts support only conscious disregard or risk to bystanders, not specific intent to kill Houston | Substantial evidence supports a reasonable inference of a kill zone around McMillan and thus attempted murder as to Houston; instruction properly given |
| New‑trial motion for ineffective assistance (closing argument) | Trial counsel’s closing was deficient and omitted key defenses, warranting new trial | Any deficiencies were not prejudicial given strong evidence (video, recorded calls, identification) | Denial affirmed: court found some weaknesses in counsel’s performance but no Strickland prejudice; no reasonable probability of different outcome |
Key Cases Cited
- People v. Canizales, 7 Cal.5th 591 (2019) (defines contours of kill‑zone theory and when instruction is appropriate)
- People v. Sanchez, 63 Cal.4th 411 (2016) (discusses eyewitness‑certainty language and research on certainty vs. accuracy)
- People v. Lemcke, 11 Cal.5th 644 (2021) (Supreme Court upheld certainty language but directed omission of certainty factor unless requested while Judicial Council revises wording)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong standard for ineffective assistance: deficient performance and prejudice)
- People v. Cardenas, 53 Cal.App.5th 102 (2020) (illustrative kill‑zone sufficiency analysis focusing on distances and shooter/victim positions)