78 Cal.App.5th 192
Cal. Ct. App.2022Background
- A daytime fistfight erupted outside LMG Liquor in Compton between two Black men (Oliver, Candler) and a group of Hispanic men (including appellants Perez, Rosas, Sanchez); Perez ran to his car, retrieved a handgun, and fired as Oliver and Candler ran into Compton Boulevard.
- Perez’s shots missed the intended victims but struck three passing vehicles and critically wounded 4‑year‑old Pedro B., who was shot in the head. Ballistics showed all recovered bullets came from the same firearm.
- Surveillance video captured Perez fetching a gun, pointing and firing; Rosas and Sanchez were seen joining the fight.
- Jury convictions: Perez — attempted murder (counts 1,2), shooting at an occupied vehicle (counts 6–8), and attempted voluntary manslaughter (counts 3–5, lesser included); Rosas and Sanchez — attempted murder (counts 1,2) and shooting at occupied vehicles (counts 6–8); gang and firearm enhancements were found true in various combinations.
- Sentences: Perez — aggregate 120 years to life; Rosas and Sanchez — ~30 years to life. Appellants appealed raising sufficiency, instructional errors (kill‑zone, CALCRIM instructions), expert testimony (Sanchez/Crawford), prosecutorial misconduct, applicability of the natural‑and‑probable‑consequences (NPC) doctrine to attempted murder (SB 775), and retroactive changes to gang enhancement law (AB 333).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Perez’s attempted murder of Candler (count 2) | People: video and ballistics show Perez fired while Candler was still in street; intent to kill may be inferred. | Perez: Candler had separated and veered toward sidewalk; Perez could not have intended to kill him. | Affirmed: substantial evidence Perez intended to kill Candler. |
| Kill‑zone instruction and attempted voluntary manslaughter convictions (counts 3–5) | People: kill‑zone theory applies; shots created a zone of fatal harm including vehicle occupants. | Perez: evidence shows shots targeted Oliver/Candler, not an intent to kill everyone nearby. | Reversed counts 3–5: kill‑zone instruction was erroneous and not harmless; insufficient evidence of specific intent to kill occupants, so double jeopardy bars retrial. |
| Application of SB 775 / NPC doctrine to Rosas’s and Sanchez’s attempted murder convictions | People: (practical remedy) permit remand so prosecution can retry under valid theory. | Rosas/Sanchez: convictions must be vacated/redesignated because NPC no longer applies to attempted murder. | Reversed counts 1–2 for Rosas and Sanchez and remanded to allow prosecution to retry under a valid aiding‑and‑abetting theory (prosecution may present new evidence). |
| Sufficiency of shooting‑at‑occupied‑vehicle convictions for Rosas and Sanchez based on NPC from target offense of disturbing the peace | People: substantial evidence they aided/abeted the gang‑related fight; shooting was a reasonably foreseeable consequence. | Defendants: they did not participate in the target crime or foresee the shooting; Rosas acted in defense. | Affirmed counts 6–8 for Rosas and Sanchez: substantial evidence supports NPC liability for those shooting counts. |
| Gang enhancements after AB 333 | People: agree enhancements must be reassessed under new law; prosecution should get opportunity to prove amended elements. | Defendants: seek vacation of gang findings and possibly new trial on enhancements; also argue section 1109 (separate gang trial) should apply retroactively. | Vacated gang enhancement findings for all defendants and remanded to allow prosecution to prove enhancements under AB 333; section 1109 not applied retroactively to require retrial. |
| Admission of gang expert testimony (Sanchez/Crawford concerns) | People: expert testimony was based on personal knowledge and permissible general gang background; not case‑specific testimonial hearsay. | Defendants: expert relied on case‑specific hearsay and STEP/records, violating Confrontation and Sanchez. | Affirmed: expert gave permissible background and personal‑knowledge opinion; did not violate Sanchez. |
| Doyle/post‑Miranda silence impeachment | People: cross‑examination touched postarrest silence but trial court promptly struck answers and admonished jury. | Defendants: prosecutor’s questioning constituted Doyle error and prejudiced trial. | No reversible error: court struck testimony, admonished jurors, and there was no further use of silence for impeachment. |
| Sentencing credits and abstracts | People: various clerical/filing points; no substantive dispute on credits after corrections. | Perez: claimed incorrect presentence credits and abstract entries; others sought abstract corrections. | Court ordered one additional day presentence credit for Perez (909 days total) and directed correction of abstracts/minutes (including placement of indeterminate terms and reflection of fines/fees and gang finding on count 9 for Rosas). |
Key Cases Cited
- People v. Bland, 28 Cal.4th 313 (Cal. 2002) (introducing and explaining "kill zone" theory)
- People v. Canizales, 7 Cal.5th 591 (Cal. 2019) (limits applicable circumstances for kill‑zone instruction)
- People v. Sanchez, 63 Cal.4th 665 (Cal. 2016) (limits gang expert testimony as to case‑specific hearsay)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial hearsay and Confrontation Clause principles)
- Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (prosecutor may not use defendant's postarrest silence for impeachment)
- People v. Gentile, 10 Cal.5th 830 (Cal. 2020) (procedures under §1170.95 and effect of SB 1437 on accomplice liability)
- People v. Prettyman, 14 Cal.4th 248 (Cal. 1996) (elements of aiding and abetting and natural‑and‑probable‑consequences doctrine)
- People v. Ervine, 47 Cal.4th 745 (Cal. 2009) (attempted murder: when pointing a gun may constitute a direct but ineffectual act)
- People v. Tirado, 12 Cal.5th 688 (Cal. 2022) (court's discretion to impose or reduce firearm enhancements)