35 Cal.App.5th 25
Cal. Ct. App.2019Background
- On July 2, 2011, Shane Warner brought an unregistered 9mm Glock into LaSalle’s Bar, concealed in his waistband, and fired approximately ten rounds across a crowded, semi-dark dance floor toward I. Smith (a prior assailant) and others. Smith and bystander N.C. were seriously wounded; bullets and casings traced a V-shaped firing path toward Smith.
- Warner admitted shooting but claimed self-defense, asserting he fired initially as a warning and then at Smith when Smith approached; eyewitnesses described him walking up to Smith and emptying the clip while Smith was on the ground.
- Prosecutors charged attempted murder of Smith and N.C., and assault with a semiautomatic firearm on N.C.; the jury deadlocked on Smith’s attempted murder (later dismissed), acquitted on attempted murder of N.C. but convicted of the lesser included attempted voluntary manslaughter as to N.C., and convicted for assault with a semiautomatic firearm; sentence aggregated to 22 years.
- At trial the prosecutor relied on the “kill zone” (concurrent intent) theory to prove Warner intended to kill people on the dance floor, and the court instructed per CALCRIM No. 600; Warner challenged sufficiency of evidence and the instruction on appeal.
- Warner raised multiple ancillary claims (prosecutorial misconduct, Brady/delayed discovery of gang evidence, failure to give CALCRIM No. 306, and sentencing error); the trial court admitted gang-evidence after hearings and defense presented a Los Angeles gang expert.
- The Court of Appeal affirmed: it held substantial evidence supported applying the kill-zone theory and the CALCRIM instruction, rejected misconduct and Brady claims, found no reversible sentencing error, and affirmed the convictions and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Kill-zone instruction / sufficiency of evidence for intent to kill by kill-zone theory | Prosecutor: evidence (10 shots, V-shaped casings, shooting across crowded dance floor, hollow-points, shooter advanced on target) supports inference Warner intended to kill persons in the zone | Warner: evidence insufficient to show he intended to kill everyone in zone; kill-zone requires method designed to ensure death of all in zone ("overkill") | Affirmed: substantial evidence supported jury inference of concurrent intent under Bland; no requirement that method guarantee death of all in zone |
| Validity/form of CALCRIM No. 600 (kill-zone instruction) | Instruction correctly states law and permits reasonable inference of concurrent intent | Instruction vague re: dimensions/degree of force; deprived due process | Affirmed: instruction was correct; no request for amplification so appellate review barred; no constitutional error |
| Brady / late disclosure of Smith’s LA gang ties | Warner: prosecutor failed to investigate/disclose exculpatory gang records timely, violating Brady and discovery rules | Prosecutor: LAPD records were not in prosecution team custody; disclosure was timely (provided 32 days before trial) and defense used the material | Affirmed: no Brady violation; records were provided within statutory timeframe and defendant was not prejudiced |
| Sentencing (upper term selection) | People: aggravating facts (great violence, planning, multiple shots toward crowd) supported upper terms | Warner: court abused discretion; insufficient evidence to support upper terms; mitigation not considered | Affirmed: claim forfeited (no timely objection); even on merits, at least one valid aggravating factor supported upper terms |
Key Cases Cited
- People v. Bland, 28 Cal.4th 313 (California 2002) (articulates "kill zone" / concurrent intent theory for attempted murder)
- People v. Smith, 37 Cal.4th 733 (California 2005) (applies kill-zone reasoning to single-shot case; concurrent intent is a permissible inference)
- People v. Stone, 46 Cal.4th 131 (California 2009) (single shot into group may support one attempted murder count when shooter intended to kill someone in group)
- People v. Perez, 50 Cal.4th 222 (California 2010) (single shot at a group may show intent to kill someone in group but does not support multiple attempted-murder counts absent concurrent intent)
- People v. McCloud, 211 Cal.App.4th 788 (Cal. Ct. App. 2012) (discusses limits of kill-zone theory and when multiple attempted-murder convictions are supported)
- People v. Vang, 87 Cal.App.4th 554 (Cal. Ct. App. 2001) (upholds multiple attempted-murder convictions after heavy gunfire into occupied residences)
- People v. Gaither, 173 Cal.App.2d 662 (Cal. Ct. App. 1959) (poisoned candy sent to a household supports attempted-murder convictions for multiple occupants)
- People v. Cardona, 246 Cal.App.4th 608 (Cal. Ct. App. 2016) (kill-zone instruction error where no evidence shooter attempted to kill everyone in area; attempted murder could stand on direct aim at bystander)
- People v. Tran, 20 Cal.App.5th 561 (Cal. Ct. App. 2018) (kill-zone instruction proper where defendant fired a hail of bullets into vehicle, exposing all occupants to mortal danger)