25 Cal.App.5th 974
Cal. Ct. App.2018Background
- On Oct. 1, 2011, occupants of a Ford Explorer were ambushed; multiple shooters fired into the vehicle, killing three and wounding others.
- Defendants Stevenson, Stewart, and Perry were identified by witnesses as shooters; a cooperating witness testified Stewart was given a handgun before the shooting and returned it after.
- Prosecutor charged each defendant with three counts of first‑degree murder (multiple‑murder special circumstances) and four counts of premeditated attempted murder, plus firearm and related enhancements.
- The jury convicted on all counts and found enhancements true; each defendant received consecutive life‑without‑parole terms plus additional firearm enhancements.
- On appeal defendants challenged several jury instructions: (1) permitting first‑degree murder liability via the natural‑and‑probable‑consequences doctrine; (2) failure to sua sponte instruct on assault with a firearm as a lesser included offense; (3) the “kill zone” instruction for attempted murder; and (4) the motive instruction’s interaction with circumstantial‑evidence burden instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jury could convict of first‑degree murder under the natural‑and‑probable‑consequences doctrine (Chiu issue) | People: Instructions were proper; CALCRIM No. 521 required the jury to find each defendant acted willfully, deliberately, and with premeditation. | Defendants: Instructions allowed first‑degree convictions via the natural‑and‑probable‑consequences theory, contrary to Chiu. | Court: No error — here CALCRIM No. 521 was given as to each defendant’s own mental state, so Chiu error did not occur. |
| Whether the court had a sua sponte duty to instruct on assault with a firearm as a lesser included offense of murder/attempted murder | People: No such duty because the information did not charge a conspiracy and there was no substantial evidence defendants were guilty only of assault. | Defendants: Cook supports a sua sponte instruction because jury was told about uncharged conspiracy evidence and overt acts. | Court: No duty — Assault with a firearm is not a lesser included offense under the elements test; Cook is distinguishable (no conspiracy charged here), and no substantial evidence supported instruction. |
| Whether the “kill zone” instruction was ambiguous and could be misapplied to convict on less than intent to kill each victim | People: CALCRIM No. 600 correctly instructed on concurrent intent/kill‑zone theory; instruction not reasonably likely to be misapplied. | Defendants: Instruction ambiguous; could be read to allow conviction if defendants intended to kill target plus at least one other, without intent as to each victim. | Court: Instruction proper and not reasonably susceptible to the claimed misreading; defendants forfeited further clarification by not requesting one. |
| Whether the standard motive instruction (CALCRIM No. 370) conflicted with the circumstantial‑evidence burden instruction (CALCRIM No. 224) when motive is a link in an inferential chain | People: Motive is not an element; CALCRIM No. 370 correctly explains motive’s probative value and does not conflict with burden instructions. | Defendants: When motive is a circumstantial inference tied to intent, the jury must be told motive must be proved beyond a reasonable doubt per CALCRIM No. 224. | Court: No conflict — motive is not an essential element, and CALCRIM Nos. 370 and 224 can be read together without misstating the burden of proof. |
Key Cases Cited
- People v. Chiu, 59 Cal.4th 155 (holds aider‑and‑abettor cannot be convicted of first‑degree murder under the natural‑and‑probable‑consequences doctrine)
- People v. Cook, 91 Cal.App.4th 910 (distinguishes elements vs. accusatory‑pleading tests for lesser included offenses; conspiracy pleading can create different lesser‑included issues)
- People v. Avila, 46 Cal.4th 680 (no duty to instruct on lesser offense absent substantial evidence)
- People v. Bland, 28 Cal.4th 313 (describes the "kill zone" doctrine and concurrent intent to kill others)
- People v. Stone, 46 Cal.4th 131 (discusses attempted murder and kill‑zone issues)
- People v. Hillhouse, 27 Cal.4th 469 (forfeiture: failure to request clarifying instruction waives claim on appeal)
- People v. Bragg, 161 Cal.App.4th 1385 (evidence of uncharged crimes does not create lesser included offenses where none otherwise exist)